People v. Barber

• Decision Date: 07 January 1943
• Citation: 289 N.Y. 378,46 N.E.2d 329
• Parties: PEOPLE v. BARBER.
• Court: New York Court of Appeals Court of Appeals

289 N.Y. 378

46 N.E.2d 329

PEOPLE

v.BARBER.

Court of Appeals of New York.

Jan. 7, 1943.

Appeal from Monroe County Court.

Carmen Barber was convicted in the Court of Special Sessions of the Town of Irondequoit, Partridge, Justice, of violating paragraph 1 of section 136 of the town licensing ordinance in selling without a license. The Monroe County Court by judgment entered April 10, 1942, affirmed the judgment of conviction, and the defendant appeals by permission.

Judgments reversed, and information dismissed. Hayden C. Covington, of Brooklyn, and Arthur Rathjen, of Rochester, for appellant.

Committee on Civil Rights of New York State Bar Association and others, amicus curiae.

Daniel J. O'Mara, District Attorney, of Rochester (Alan M. Hill, of Rochester, of counsel), for respondent.

LEHMAN, Chief Judge.

The defendant, a member of a religious sect known as ‘Jehovah's Witnesses,’ rang the door bell of the house where a police officer of the town of Irondequoit lived, and when the officer came to the door, the defendant took several books out of a satchel and ‘held them out’ towards the police officer. We quote here the officer's testimony of what then occurred: ‘A. Yes, and I said to him what do you want and he said a little donation, and I said I will give you 25 cents for the bible and he said no, I will sell it to you for 35 cents and I informed him that he was violating the Town ordinance and for him to quit soliciting and peddling and to get out of town and he started to walk toward the house next to me on the right and I opened the door and I said if you go to that next house and solicit there I will arrest you and he went up and rang the door bell and a man came to the door and he held out one of these cards, ans at that I went up and took hold of him and placed him under arrest.’

The information verified by the police officer charges: ‘That on the 7th day of December, 1941, at about 10:45 o'clock A. M. one Carmen Barber did violate Sec. 136, Par. 1, Town Licensing Ordinance (by) wilfully and unlawfully did commit an act of selling without a license in that he did offer for sale and set a price of 35 cents on a Bible which was among other books and pamphlets he displayed to the complainant at his home, 205 Pt. Pleasant Rd., in the Town of Irondequoit, New York.’

The defendant was convicted after trial before a justice of the peace sitting as a court of Special Sessions, and his conviction was affirmed by the County Court. Upon the appeal to this court the defendant maintains that in offering the Bible and other books and pamphlets for a price he did not violate the ordinance; and that if the ordinance were construed so broadly that his conduct comes within its scope, the ordinance would violate his rights of freedom of religious worship and freedom of speech and press guaranteed by the Constitution of the State of New York and the Constitution of the United States.

The ordinance in part provides

‘Section 1. Title.

‘This ordinance shall be known as the ‘Licensed Occupations Ordinance.’

‘Section 2. Licensing Trades or Occupations.

‘Pursuit or exercise within the Town of Irondequoit of the following trades or occupations is hereby prohibited without a license obtained as hereinafter provided, to wit:

‘(a) Soliciting, either on private property or on the public highway, running therefor, or for hotels, boats, lodging houses or garages; auctioneering, hawking and peddling, except the peddling of meats, fish, fruit and farm products by farmers and persons who produce such commodities.’

Subdivision b of section 2 refers to operation of public vehicles over streets of the town for hire. Subdivision c refers to operation of places of public amusement. Subdivision d refers to the pursuit of the trade of plumbing.

Section 4 provides:

‘Section 4. Issuing of Licenses.

‘The town clerk of the Town of Irondequoit upon written application and upon receipt of the license fee therefor shall issue a license specifying the trade or occupation thereby authorized, and such license shall become effective from the date thereof and shall continue in force for the term specified therein, but in no event longer than through the thirty-first day of December next succeeding. Such license shall not be transferable. Such license may be refused by the town clerk if the applicant shall have been convicted of a misdemeanor or felony which in the judgment of the town clerk renders the applicant unfit or undesirable to carry on the trade or occupation involved. The town clerk may also refuse a license to any person who in his judgment shall be an undesirable person or incapable of properly conducting the trade or business desired. Any applicant who has been refused a license by the town clerk may apply to the town board therefor, and the same may be granted or refused by the board, except as prohibited herein. Where additional requirements are imposed herein on the issuance of certain licenses the town clerk shall issue a license only upon compliance with such additional requirements.’

The defendant earns his living by working as a laborer for a contractor. In his spare hours and on Saturdays and Sundays he distributes Bibles and religious books and tracts. The satchel which he carried at the time of his arrest contained only such publications. The defendant is foreign born. His testimony is not entirely clear. It appears sufficiently, however, that the books and pamphlets which the defendant distributes are furnished to him by Watch Tower Bible and Tract Society, a society or corporation organized to spread the doctrines which are accepted as the word of God by the religious sect of which the defendant is a member. He carried a certificate from the society that he ‘is an ordained minister of Jehovah God to preach the gospel of God's kingdom under Christ Jesus, and is therefore one of Jehovah's witnesses; that he is sent forth by this Society, which is created and organized and chartered by law to preach the gospel of God's kingdom, and that Jehovah's witnesses are commanded to obey God by preaching the gospel.’ The defendant testified that the distribution of the Bible and religious books is the form in which Juhovah's Witnesses preach the gospel. The price demanded ‘pays for the ink and paper’ but ‘if the person has no money, if he ask me and say I have no money, I give him a Bible or book or anything he want.’

The slight conflict between the testimony of the defendant and the testimony of the complaining witness, in respect to the conversation or transaction, which, it is said, constitutes a violation of the ordinance, has been resolved against the defendant in the courts below. The testimony of the defendant in respect to his activities as a member of a religious sect or society and his purpose in distributing or selling the Bible and the religious tracts is not contradicted and its truth is not challenged. The primary problem presented upon this appeal is whether the testimony of the complaining witness which we have quoted, read in the light of the testimony of the defendant which we have summarized, shows that the defendant was engaged in the ‘pursuit or exercise’ of the ‘trades or occupations' of ‘soliciting’ or of ‘hawking or peddling’ within the meaning of the ordinance.

In the case of Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691, 141 A.L.R. 514, decided June 8, 1942, the Supreme Court of the United States sustained the power of a state to impose by statute or ordinance a tax upon the sale of all merchandise, without discrimination between religious books and tracts and other articles or merchandise, and sustained the power of the state to require a license for the exercise of the ‘busin...