State v. Greaves
| Decision Date | 04 November 1941 |
| Docket Number | No. 1096.,1096. |
| Citation | 112 Vt. 222,22 A.2d 497 |
| Parties | STATE v. GREAVES. |
| Court | Vermont Supreme Court |
Exceptions from Rutland Municipal Court; A. J. Spero, Judge.
Elva Greaves was convicted of violating a city ordinance by selling pamphlets without a peddler's license, and she brings exceptions.
Reversed, and respondent discharged.
Argued before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
Robert T. Stafford, of Rutland City, for the State.
Joseph F. Rutherford and Hayden C. Covington, both of Brooklyn, N. Y, and Edward G. McClallen, Jr., of Rutland, for respondents.
Waldo C. Holden, of Bennington, for American Civil Liberties Union, amicus curiae.
This is a criminal case in which the respondent, Elva Greaves, is charged with a violation of section 22 of chapter 21 of the Rutland City ordinances as amended. Briefly stated, the offense alleged is that on, to wit, the 19th day of April, 1941, at the City of Rutland, the respondent did "carry on the business of 'peddler' by selling pamphlets for money without obtaining a license from said City of Rutland so to * * *" Trial was by jury in the Rutland Municipal Court, a verdict of guilty returned, judgment entered thereon and the case is here upon exceptions by the respondent.
The parts of the ordinance in question which are here material are as follows: "No person shall, carry on the business of * * * peddler * * * within the City, * * * without first obtaining a license therefor as provided in this chapter, * * *"
The respondent at the close of the State's case moved for a directed verdict of "not guilty" which motion was denied. This was renewed at the close of all the evidence and exceptions saved to the court's refusal to grant it. The defendant also seasonably moved to set the verdict aside and saved exceptions to the court's refusal to do so.
The respondent's motion for a directed verdict was upon the grounds that she was not a peddler but did disseminate teachings of the Bible by distributing books, booklets, pamphlets and magazines for which she received money contributions; that the undisputed evidence shows that she is not guilty and also upon the grounds that the ordinance in question as applied to her is contrary to the provisions of both the Federal and State Constitutions in that she has thereby been deprived of her rights as to freedom of speech, freedom of press and freedom of right to worship Almighty God.
In considering this motion we must view the evidence in the light most favorable to the State. State v. Gaffney and Fields, 56 Vt. 451, 453. So considered it would justify a jury in finding the following facts:
The respondent is an ordained minister of a sect or class known and designated as "Jehovah's Witnesses". As such she believes that she is commanded by the Almighty to spread the Gospel as she and other members of this organization believe it to be and that it is her duty to do so. She did this by publicly taking positions on the sidewalks and streets in the City of Rutland, equipped with a magazine bag and several magazines known as the "Watchtower" and "Consolation". As people passed she would call out some statement referring to religion and if any person gave attention and wished a magazine she sold it to him for five cents which was no more than enough to cover the cost of publishing same. She sold several of these in this manner on the day mentioned in the complaint. The object of this distribution of magazines was to place in the hands of the people in general true Biblical teachings as she understands them and believes them to be and not for the purpose of any financial gain or material personal benefit whatsoever. She had no license from the City of Rutland to carry on therein the business of peddler.
Section 24 of this ordinance provides that the fee for a peddler's license shall be from $10 to $200, depending upon the manner of travel of the applicant and the capacity of the vehicle used to transport the goods he desires to sell.
There is no claim that the printed matter in the magazines in question was obscene or otherwise objectionable.
The respondent has briefed two exceptions to the failure of the court to grant her motion for a directed verdict. These are: 1. That the undisputed evidence showed that she was not guilty because she was not a peddler but was a preacher. 2. That the ordinance as construed and applied deprived her of her right of freedom of speech, press, and worship, contrary to the First and Fourteenth Amendments to the United States Constitution.
The first exception states no grounds why a person may not be both a peddler and a preacher. It is, therefore, too general to re-receive consideration here and we give this no further attention. State v. Malnati, 109 Vt. 429, 431, 199 A. 249.
2. The First and Fourteenth Amendments to the United States Constitution are as follows:
Whether the license fee with which we are concerned is considered as a license fee or a license tax, its effect upon circulation of these magazines is the same in either case. In considering the constitutional question here this ordinance must be tested by its operation and effect rather than by its form. Near v. State of Minnesota, 283 U.S. 697, 708, 57 S.Ct. 625, 75 L. Ed. 1357; Henderson v. New York, 92 U. S. 259, 268, 23 L.Ed. 543. Therefore what is stated by the United States Supreme Court in the case of Grosjean v. American Press Company, 297 U.S. 233, 56 S.Ct. 444, 445, 80 L.Ed. 660, has great weight in determining the question in the case at bar. In that case the Court was considering the validity of a Louisiana statute which provided "that every person, firm, association or corporation, domestic or foreign, engaged in the business of selling, or making any charge for, advertising or for advertisements, whether printed or published, or to be printed or published, in any newspaper, magazine, periodical or publication whatever having a circulation of more than 20,000 copies per week, or displayed and exhibited, or to be displayed and exhibited, by means of moving pictures, in the State of Louisiana, shall, in addition to all other taxes and licenses levied and assessed in this State, pay a license tax for the privilege of engaging in such business in this State of two per cent. (2%) of the gross receipts of such business." The question before the Court was whether such tax violated the provisions of the First and Fourteenth Amendments to the United States Constitution. The Court in the opinion in that case reviews the history of the long struggle which took place in England between the Government and the proponents of a free press. The two evils which were used to control the press there were censorship and taxation. Taxation was of two forms, namely, license taxes and stamp taxes. The history of this struggle is important in considering the purposes which apparently prompted the above quoted amendments to the United States Constitution. In that opinion mention is made of the fact that in 1785, four years before Congress proposed the First Amendment, the Massachusetts Legislature, following the English example, imposed a stamp tax on all news papers and magazines. The following year an advertisement tax was imposed. Both taxes met with such violent opposition that the former was repealed in 1786 and the latter in 1788. Duniway on Freedom of the Press in Massachusetts, pp. 136 and 137.
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