Rescue Army v. Mun. Court of City of L.A.

Decision Date09 June 1947
Docket NumberNo. 574,574
Citation331 U.S. 549,67 S.Ct. 1409,91 L.Ed. 1666
PartiesRESCUE ARMY et al. v.
CourtU.S. Supreme Court

Appeal from the Supreme Court of the State of California.

Mr. Robert H. Wallis, of Los Angeles, Cal., for appellants.

Mr. John L. Bland, of Los Angeles, Cal., for appellees.

Mr. Justice RUTLEDGE delivered the opinion of the Court.

On the merits this appeal presents substantial questions concerning the constitutional validity of ordinances of the City of Los Angeles governing the solicitation of contributions for charity. First and Fourteenth Amendment grounds are urged as nullifying them chiefly in the view that they impose prior restraints upon and unduly abridge appellants' rights in the free exrcise of t heir religion. Those rights, as claimed, are to engage in soliciting donations for charity as a part of their religion free from the ordinances' restrictions.

Similar, but also distinct, questions were involved in Gospel Army v. City of Los Angeles, dismissed today for jurisdictional reasons. 331 U.S. 543, 67 S.Ct. 1428. This case, however, arose procedurally in a different fashion, so that it is not subject to the same jurisdictional defect. And the procedural difference is important, not merely for our jurisdiction but also for determining the propriety of exercising it in the special circumstances presented by this appeal.

The California Supreme Court heard and determined the Gospel Army case several months in advance of this one. It sustained the regulations in both instances, filing separate opinions in each case. 27 Cal.2d 232, 163 P.2d 704; 28 Cal.2d 460, 171 P.2d 8. But the attack upon the city ordinances in the Gospel Army case covered a much wider range than here, and the court's principal opinion was rendered in that cause. Hence in this case it disposed of overlapping issues merely by reference a fortiori to its 'approval' of the challenged provisions in the Gospel Army opinion.

As will more fully appear, this mode of treatment, together with interlacing relationships between provisions involved here and others in the Gospel Army case, has combined with the necessitated dismissal of that appeal to create for us difficult problems in determining exactly how much of the regulatory scheme approved in the Gospel Army opinion, and hence also how much of that decision, must be taken as having been incorporated in the disposition of this cause. By virtue of the California court's method of decision, we are largely without benefit of its judgment upon these matters, including possible questions of severability. Consequently, this fact, together with the different jurisdictional postures in which the cases reach this Court, would force us to determine those questions independently before undertaking any decision on the merits.

That necessity and the difficulties tendered by the extricating problem raise substantial questions concern- ing the disposition appropriate, in the unusual situation, to be made of this appeal. In order to present the problem with a fair degree of precision, it is necessary to state in some detail the nature of the two proceedings, their relationships to each other, and their procedural as well as jurisdictional differences.


This suit is one for a writ of prohibition. The appeal is from the California Supreme Court's judgment denying appellants' application for such a writ. 28 Cal.2d 460, 171 P.2d 8. They instituted the suit in the District Court of Appeal, Second Appellate District, Division Three, of California. Its object was to test the jurisdiction of the respondent Municipal Court of Los Angeles to proceed with a pending criminal prosecution against Murdock, who is an officer of the Rescue Army. In that court he had been charged with violating three provisions of the city ordinances, had been twice convicted, and twice the convictions had been reversed by the Superior Court of Los Angeles County. 1

While the case was pending in the Municipal Court after the second reversal, appellants filed their petition in this cause in the District Court of Appeal. Alleging that the Municipal Court was threatening to proceed with a third trial on the same charges, they set forth grounds held sufficient under the state procedure to present for adjudication the question of the Municipal Court's jurisdiction. 28 Cal.2d at pages 462—467, 171 P.2d 8.

The District Court of Appeal denied the writ. Thereupon the state Supreme Court trnsferred t he cause to its own docket and issued an alternative writ of prohibi- tion pending determination there. As in the Gospel Army case, the Supreme Court, with three of the seven justices dissenting, decided the issues on the merits against the appellants. It therefore denied the writ, at the same time discharging the alternative writ. In short effect the ordinances, insofar as they were involved, were sustained as against the constitutional and other objections raised concerning them. Probable jurisdiction was duly noted here, and the cause was assigned for argument immediately following the Gospel Army case. 67 S.Ct. 130.

Apparently Murdock was charged in the Municipal Court with violating three sections of the Municipal Code. These were §§ 44.09(a), 44.09(b), and 44.12 of Article 4, Chapter IV.2 Sections 44.09(a) and (b) formed the basis for the first count against Murdock.3 Colloquially speaking, § 44.09 is a 'tin-cup' ordinance. In summary, its two subdivisions, (a) and (b), prohibit solicitations in the specified public places or adjacent areas 'by means of any box or receptacle' except, under (a), 'by the express written permission of the Board (of Social Service Commissioners)'; under (b), 'without first filing with the Department (of Social Service) a 'notice of intention' as required by Sec. 44.05' and, literally, obeying the further command that 'every person so soliciting must in all other respects comply with the provisions of this Article.'4 The full text of the section is set forth in the margin.5

The second count charged violation of § 44.12 by soliciting without exhibiting or reading to the persons solicited an information card issued by the Los Angeles Board of Social Service Commissioners. Section 44.12 is more general than § 44.09 as to place and manner of solicitation. It is in the fllowing wo rds:

'No person shall solicit any contributions unless he exhibits an Information Card provided for in Sec. 44.03 of this Article and reads it to the person solicited or presents it to said person for his perusal, allowing him sufficient opportunity to read same, before accepting any contribution so solicited.'

Obviously neither § 44.09(b) nor § 44.12 is self-contained. Each incorporates by reference other sections of the code. Thus, it is necessary to take into account under § 44.09(b), the provisions of § 44.05 requiring the filing of the 'notice of intention' as well as the omnibus requirement of compliance 'in all other respects * * * with the provisions of this Article'; under § 44.12, the requirements of § 44.03 concerning issuance of the information card. Enforcement of § 44.09(a), which does not refer specifically to other sections, necessarily involves consideration of whatever requirements may relate to securing the board's written permission.

The issue of the Municipal Court's jurisdiction therefore, insofar as it concerns us, turns upon the validity of §§ 44.09(a), 44.09(b) and 44.12, together with the other provisions necessarily incorporated in them by reference; and, upon this appeal, their validity not only is relative solely to the effect of the federal constitutional prohibitions, but must be determined in light of the California Supreme Court's interpretation, including the extent to which other provisions have been incorporated. Moreover the jurisdictional question arises substantially as upon demurrer to the charges, since trial has not been had and the issue concerns only the Municipal Court's power to proceed with the criminal cause. Hence only the validity of the provisions on their face, not as applied to proven circumstances, is called in question.6

The Gospel Army case, on the other hand, was an injunction suit, in which attack was projected on a broad front against the ordinances and the scheme of regulation they embody as a whole. For some reason § 44.09(a) was not attacked in that suit. But § 44.09(b) was involved indirectly through its relation to § 44.05 and § 44.12 directly, as well as numerous other provisions both of Article 4, Chapter IV, and outside it. That article, as we have noted above, consists of Code §§ 44.01-44.19, entitled 'Charities and Relief,' and thus includes all of the sections involved here as well as many others which were in issue in the Gospel Army case.

It is this setting of dovetailed legislative enactments and judicial decisions which creates the primary problem for our disposition. Those interrelations, of the cases and of the ordinances they involve, will be better understood in the setting of a summary of the general scheme.


The Municipal Code regulates both charitable and other solicitations, as well as pawnbrokers, secondhand dealers, junk dealers, etc. The regulations affecting those dealers lie outside Article 4 and became pertinent in the Gospel Army case because of that organization's activities in collecting, repairing, selling and giving away used articles.7 None of those regulations, however, appears to be involved here.8 The Municipal Court charges, so far as we can now ascertain, relate exclusively to charitable solicitations and consequently are comprehended within Article 4.9 We therefore are relieved of the necessity for taking account of any of the code provisions outside that article.

Article 4, however, comprehends numerous interrelated sections and subdivisions. They provide a broad and general, though also highly detailed and integrated, plan for regulating solicitations in Los...

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