State v. Van Daalan

• Court: South Dakota Supreme Court
• Citation: State v. Van Daalan, 11 N.W.2d 523, 69 S.D. 466 (S.D. 1943)
• Decision Date: 30 October 1943
• Docket Number: 8576.
• Parties: STATE v. VAN DAALAN, et al.

11 N.W.2d 523

69 S.D. 466

STATE v. VAN DAALAN, et al.

No. 8576.

Supreme Court of South Dakota

October 30, 1943

Henry C. Mundt, of Sioux Falls, N. B. Bartlett, of Lennox, Hayden C. Covington, of Brooklyn, N. Y., and Roy A Swayze, of Arlington, Va., for appellants.

George T. Mickelson, Atty. Gen., and A. R. Henrikson, Acting State's Atty., Codington County, of Watertown, for respondent.

WARREN Judge.

The defendants were tried on an information presented and filed in the Municipal Court of the City of Watertown, Codington County, South Dakota. Counts I and II of the information read:

"Count I. Said defendants at and in the County of Codington, in the State of South Dakota, during the month of December, 1941 and during the month of January, 1942, did wilfully unlawfully and feloniously engage in and transact business as retailers, without any permit to engage in or transact such business having been issued to them by the Director of Taxation of the State of South Dakota, all contrary to SDC 57.3301 and SDC 57.9924, the statute in such case made and provided, and against the peace and dignity of the State of South Dakota."

"Count II. That said defendants did engage in and transact business as retailers in the County of Codington and State of South Dakota, during the month of December, 1941, and did wilfully unlawfully and feloniously fail, refuse and neglect to make a return of sales made by them during said month of December, 1941, to the Director of Taxation of the State of South Dakota, on or before January 15, 1942, or at all, all contrary to the provisions of SDC 57.3302 as amended by Chapter 270 of the Laws of South Dakota for the year 1939 and SDC 57.9924, the statute in such case made and provided, and against the peace and dignity of the State of South Dakota."

At the close of the evidence the defendants moved for a dismissal of the information, the motion was overruled. A jury trial having been waived, the court made its decision finding the defendants guilty as charged in the information. The defendants were sentenced to pay fines and upon failure to pay the fines and costs were each sentenced to imprisonment in the county jail of Codington County, South Dakota, for a period of 31 days. The defendants have appealed to this court.

The appellants are members of a religious sect known as "Jehovah's Witnesses" and claim to be interested in furthering the activities of the "Jehovah's Witnesses" sect. They operated within Codington County with headquarters at Watertown, South Dakota. It would seem that each of the appellants carried a portable phonograph on which records would be played to persons who wished to listen. The phonograph records were mostly explanatory in nature, setting out the ideas and beliefs of the "Jehovah's Witnesses" sect. Each of the appellants also carried with him a number of pamphlets and books which were on occasions either sold or given away to persons who would receive them. The record shows that the reading material was both sold and given away free of charge. The appellants admitted that they had not complied with SDC §§ 57.3301, 57.9924 and § 57.3302, as amended by Ch. 270, Laws of South Dakota for 1939. Appellants' failure to comply with the above sections seems to have been wilful under their theory that their activities were not commercial in nature but were of a religious nature, and that, therefore, the requirements of the foregoing sections would deprive them of their constitutional rights to practice their religion according to their view of the interpretation of the Holy Scriptures.

In the attempt to sustain their contentions they claim that they are ordained preachers and that to compel them to submit to the law requiring a permit as retailers and making a return on the sale of books and pamphlets, would, in effect, be the same as requiring a license for the privilege of preaching the gospel. They further contend and insist that the use of the streets for sale and distribution of pamphlets is not commercial and that they are not retailers, but that their method of preaching is such that they are not amenable and did not violate the law under which they were arrested and tried, and that they are not required to secure permits as retailers under the South Dakota law and are not compelled to make a return on the sales that were made.

The appellants' assignments of error charge that the South Dakota Retail Sales Tax Act does not apply to them as they are not retailers; that the articles disseminated were not goods, wares and merchandise when properly defined; that the charitable activity or preaching is especially exempted by Ch. 269(1) and (4), Session Laws 1939; that the Retail Sales Tax Act as applied to these appellants is unconstitutional as it abridges the appellants' rights of freedom of the press and worship of Almighty God, contrary to Sections 2, 3, 4 and 5 of Art. VI, South Dakota Constitution, and that the South Dakota Retail Sales Tax Act abridges appellants' rights of freedom of press and worship of Almighty God contrary to the 1st and 14th Amendments to the United States Constitution. From the leading reported cases, we learn that the appellants' plan of operation is much the same and similar to the plan now commonly used by the "Jehovah's Witnesses" sect all over the United States.

The issues presented by this appeal have been before many courts in the past, and the decisions are not uniform and in harmony. Some of the authorities relied upon by the respondent cannot now be considered the law upon the constitutional questions herein raised for the reason that the Supreme Court of the United States on May 3, 1943, handed down its opinion in the case of Murdock v. Commonwealth of Pennsylvania (City of Jeannette), 319 U.S. 105, 63 S.Ct. 870, 872, 87 L.Ed. 1292, which conceding without deciding that, that the cited statutes were intended to apply to the activities of appellants, must necessarily dispose of the issue now before us and we quote portions thereof which are decisive and controlling:

"The First Amendment, which the Fourteenth makes applicable to the states, declares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ***.' It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is in substance just that.

"Petitioners spread their interpretations of the Bible and their religious beliefs largely through the hand distribution of literature by full or part time workers. They claim to follow the example of Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, 'Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God.

"The hand distribution of religious tracts is an age-old form of missionary evangelism-as old as the history of printing presses. It has been a potent force in various religious movements down through the years. This form of evangelism is utilized today on a large scale by various religious sects whose colporteurs carry the Gospel to thousands upon thousands of homes and seek through personal visitations to win adherents to their faith. It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press. *** Other claims may well arise which deserve the same fate. We only hold that spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types. The manner in which it is practiced at times gives rise to special problems with which the police power of the states is competent to deal. ***

"The alleged justification for the exaction of this license tax is the fact that the religious literature is distributed with a solicitation of funds. Thus it was stated in Jones v. Opelika, supra, 316 U.S. [584] at page 597, 62 S.Ct. [1231], at page 1239, 86 L.Ed. 1691, 141 A.L.R. 514 that when a religious sect uses 'ordinary commercial methods of sales of articles to raise propaganda funds', it is proper for the state to charge 'reasonable fees for the privilege of canvassing'. Situations will arise where it will be difficult to determine whether a particular activity is religious or purely commercial. The distinction at times is vital. As we stated only the other day in Jamison v. Texas, 318 U.S. [413], 63 S.Ct. 669, 672, 87 L.Ed. 869, 'The state can prohibit the use of the street for the distribution of purely commercial leaflets, even though such leaflets may have "a civil appeal, or a moral platitude" appended. Valentine v. Chrestensen, 316 U.S. 52, 55, 62 S.Ct. 920, 922, 86 L.Ed. 1262. They may not prohibit the distribution of handbills in the pursuit of a clearly religious activity merely because the handbills invite the...