Town of McCormick v. Follett

• Decision Date: 26 August 1943
• Docket Number: 15573.
• Citation: 29 S.E.2d 539,204 S.C. 337
• Parties: Town of McCORMICK v. FOLLETT.
• Court: South Carolina Supreme Court

29 S.E.2d 539

204 S.C. 337

Town of McCORMICK v. FOLLETT.

No. 15573.

Supreme Court of South Carolina

August 26, 1943

Grover C. Powell, of Atlanta, Ga., and C. E. Cooley, of Anderson for appellant.

J Fred Buzhardt, of McCormick, and Jeff D. Griffith, Sol., of Saluda, for respondent.

STUKES Justice.

Appellant was convicted in the Mayor's Court of the Town of McCormick and sentenced to pay a fine of $50 or be confined in jail for twenty days for violation of a municipal ordinance prescribing an occupational license tax. The classification in which he fell is as follows: "Agents selling books, per day $1.00, per year $15.00."

The instances of violation to which the evidence referred were of the sales of a cloth bound book entitled "Children" and containing three hundred and sixty-eight pages of text with an elaborate index, purporting to be of an edition of three million copies, which cost the purchasers twenty-five cents each, but appellant contended that such price was a contribution. However, he admitted in testimony that he had no other income, living upon the profits of his sales or "contributions", and remitted to the publisher for the books after he disposed of them. The record indicates that he distributed other literature published by the Watch Tower Bible and Tract Society, Inc., of Brooklyn, New York but the prosecution and conviction involved the book mentioned , "Children", and only it was given this Court as an exhibit on the argument of the case.

After conviction and sentence, defendant appealed to the Circuit Court of General Sessions upon the ground that the prosecution should have been dismissed because the ordinance as here applied is in violation of the Fourteenth Amendment of the Federal Constitution (extending against the States the prohibitions of the Bill of Rights, the first eight amendments), in that it restricts freedom of speech, freedom of press and freedom of worship. It was also urged at the trial that there was insufficient testimony of an actual sale or sales of the books within the corporate limits of the Town of McCormick, but that ground was abandoned upon appeal to the Circuit Court. It may be said, however, that the conviction was upon trial by jury and they had ample evidence before them to sustain their finding of sales.

The appeal came before the Honorable E. C. Dennis, Presiding Judge, who heard the arguments thereon and took them under advisement for considerable time, afterward filing his order dated November 2, 1942, in which he sustained the conviction. The order is interesting and demonstrates his close study of the record and general careful consideration of the case. From it appellant has brought his appeal to this, the Court of last resort of this State.

We agree with the trial Judge in his observation that our decision of State v. Meredith, 197 S.C. 351, 15 S.E.2d 678, is not apposite. There it was found that the defendant was an itinerant minister of Jehovah's Witnesses and the sale by him of a book (apparently a different one from that involved here) in a rural community "was merely collateral to the main purpose in which he was engaged, which was to preach and teach the tenets of his religion," with no profit motive involved. The statute there invoked (the state hawkers and peddlers license law) was properly held inapplicable and the decision of constitutional questions was expressly avoided.

Here the appellant contended in evidence and argument that he is an ordained minister of the same sect and he introduced in evidence a certificate of such of the Watch Tower Bible and Tract Society but there is no doubt of the fact, established in evidence, that he earns his living by sale of the books, having no other occupation. This clearly takes him out of the rule of State v. Meredith. It will hardly be contended that any other minister may make his living by the sale of books and, should he engage in his occupation in the Town of McCormick, not be subject to the moderate license of $15 per year prescribed by the ordinance under attack.

It may be conceded that the book in question is a religious book. Tested by the tenets of other forms of the Christian religion with which we are familiar, it is full of heresies. But it purports to offer a plan of salvation of the human soul in life after death, based upon quotations from the Bible, so we conclude without difficulty that its publication and distribution come within the meaning of the words, "exercise of religion," as they are used in the Constitution. Appellant's sect undertakes to make a now unimportant and obscure distinction between religion and Christianity, and on the back of his certificate of ordination, in evidence, is the following statement with reference to the book: "It is not religious, but fills the sincere heart with contentment and hope. It is not a child's book, but is for adults and children as well. Here is a copy for you, and you may contribute twenty-five cents to help publish more like books. Read Children, rejoice and live."

It is interesting to note that the able and long-experienced Judge who heard the case on Circuit sat as an Acting Associate Justice of this Court in State v. Langston, 1940, 195 S.C. 190, 11 S.E.2d 1, 2, a case affirming the conviction of other Jehovah's witnesses of breaches of the peace. In his opinion for the Court he said: "In this State there are so many religious beliefs, so varied in what they teach and with such great differences, that one of the most fruitful, and yet fruitless, sources of argument is some theological question. It certainly cannot be said that there is not in this State an absolute freedom of religion." For convenient reference the portion of the first amendment of the Federal Constitution, urged in opposition to the municipal ordinance under review, is here set out: "Congress (or a State or subdivision thereof--interpolated) 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 seems, and is, a very far cry from the import of the foregoing clause to the occupational license ordinance in question. Does application of the...