Town of Green River v. Martin

• Decision Date: 10 March 1953
• Docket Number: No. 2568,2568
• Citation: 71 Wyo. 81,254 P.2d 198
• Parties: TOWN OF GREEN RIVER, v. MARTIN.
• Court: Wyoming Supreme Court

Page 198

254 P.2d 198

71 Wyo. 81

TOWN OF GREEN RIVER, v. MARTIN.

No. 2568.

Supreme Court of Wyoming.

March 10, 1953.

Albert E. Nelson, Rock Springs, Hayden C. Covington, Brooklyn, N. Y., for defendant-appellant.

Frank R. Schofield, Green River, for plaintiff-respondent.

William D. Donnelly, of Washington, D. C., and Clarence A. Swainson, Cheyenne, amici curiae on behalf of General Conference of Seventh Day Adventists.

BLUME, Chief Justice.

In this case the defendant was charged in the Police Court of Green River, Wyoming with violating Ordinance No. 175. He was found guilty and was fined the sum of $25. The case was appealed to the District Court and the defendant was again convicted and fined the same sum. Thereupon the case was appealed to this court.

The first section of the Ordinance No. 175, under which the defendant was convicted, reads as follows: 'The practice of going in and upon private residences in the Town of Green River, Wyoming, by solicitors, peddlers, hawkers, itinerant merchants, and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares, and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.'

The defendant is a member of the Jehovah's Witnesses, and as such claims to be an ordained minister of the Gospel. His activities include going from door to door for the purpose of interesting people in the Bible and distributing books and leaflets on religion. They are similar to those shown in the numerous cases involving Jehovah's Witnesses.

The ordinance involved herein is undoubtedly valid and constitutional, in this jurisdiction at least, as to transactions which are purely commercial. Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456, appeal dismissed 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854; Town of Green River v. Fuller Brush Company, 10 Cir., 65 F.2d 112, 88 A.L.R. 177; Breard v. City of Alexandria, La., 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. But there is an extraordinary diversity of opinion among the courts as to the validity of the ordinance, or similar ordinances, as applied to Jehovah's Witnesses. Many ordinances, sustained by the state courts, have been struck down by the United States Supreme Court. See Schneider v. New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; Follett v. Town of McCormick, 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574. It is the contention of the defendant herein, that the ordinance, fairly construed, does not contemplate the application thereof to the activities of Jehovah's Witnesses and, if construed as applicable to them it is unconstitutional in that it would interfere with freedom of the press and freedom of religious worship. A motion to quash the information upon these grounds was filed. In the case of City of Shreveport v. Teague, 200 La. 679, 8 So.2d 640, 641, an ordinance exactly like that of Green River was in question. The defendant was charged in that "he did go upon private residences in the City of Shreveport without having been requested or invited so to do by the owner or occupant, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same." Reversing a conviction of the Jehovah's Witness in that case, the court stated among other things as follows: 'It seems quite obvious to us from a mere reading of the above quoted section that the acts done by relator do not constitute a violation of the ordinance. Relator is neither a solicitor, peddler, hawker, itinerant merchant or transient vendor of merchandise. He is admittedly an ordained minister of a religious sect, who, instead of voicing his views from a pulpit, travels as an itinerant preacher from house to house. * * * Relator, cannot, by any stretch of judicial interpretation, be placed in the category of a peddler, hawker or solicitor since it is perfectly plain that he did not enter the premises of any of the householders in Shreveport 'for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same, * * *.' To hold otherwise, we would be compelled to attribute to the City Council of Shreveport the intention of declaring that the visitation into homes (without previous invitations) by priests and ministers of all religious denominations, accompanied by the sale of Biblical literature constitutes a nuisance and a misdemeanor. This we will not do.' Other cases which hold that offering for sale or selling religious literature by Jehovah's Witnesses is incidental and collateral to their main work, are: State v. Meredith, 197 S.C. 315, 15 S.E.2d 678; Thomas v. City of Atlanta, 59 Ga.App. 520, 1 S.E.2d 598; State v. Mead, 230 Iowa 1217, 300 N.W. 523. See also People v. Gage, 179 Misc. 638, 38 N.Y.S.2d 817; State ex rel. Semansky v. Stark, 196 La. 307, 199 S.E. 129; City of Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418; Donley v. City of Colorado Springs, D.C., 40 F.Supp. 15; Commonwealth v. Akmakjian, 316 Mass. 97, 55 N.E.2d 6, and Murdock v. Com. of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 874, 87 L.Ed. 1292. In the last mentioned case, the court stated: 'But the mere fact that the religious literature is 'sold' by itinerant preachers rather than 'donated' does not transform evangelism into a commercial enterprise. If it did, then the passing of the collection plate in church would make the church service a commercial project. The constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books. * * * It is plain that a religious organization needs funds to remain a going concern. But an itinerant evangelist however misguided or intolerant he may be, does not become a mere book agent by selling the Bible or religious tracts to help defray his expenses or to sustain him.'

Counsel for the town seem to contend that cases based on the requirement of a license tax or permission by some official of the town or city have no bearing herein. That, however, is an error. If an ordinance, which limits or abridges the exercise of a right by censorship or by the requirement of a license tax, is invalid, an ordinance of the same nature which instead of limiting, absolutely prohibits the exercise of the right, is necessarily invalid also. See statement of Justice Reed in Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1238, 86 L.Ed. 1691. An ordinance providing for the exercise of a right under reasonable limitations might well be valid, while an ordinance of the same nature absolutely prohibiting the exercise of the right might be invalid. A regulation may be, but is not necessarily, as stringent as a prohibition.

It is not necessary, we think, to go as far as to adopt the theory of the foregoing cases. We have cited them and quoted from them because they shed some light on the manner in which we should interpret the ordinance in question herein, and that we should avoid, if it may reasonably be done, passing upon the constitutional question raised herein.

Passing then to the examination of the ordinance, we think that it contemplates commercial activities. The terms solicitor, peddler, hawker, itinerant merchant, transient vendor, used in the ordinance show that to be true. As to what is included in such commercial activities is another question and need not, we think, be determined herein. The purpose of the activities of the persons contemplated in the ordinance is stated to be first, the solicitation of orders for the sale of goods. No contention is made that the defendant was engaged in that activity. In the following clause of the ordinance, the purpose must be to dispose of and peddle or hawk goods. We do not think that the mere fact of disposal or purpose of disposal of goods gratuitously, and without offering them for sale or selling them is forbidden. If that were not so, the disposal of circulars or handbills, calling attention to a political rally, or a church supper, or a meeting of the town...