Vill. of South Holland v. Stein

• Decision Date: 17 April 1940
• Docket Number: No. 25468.,25468.
• Citation: 373 Ill. 472,26 N.E.2d 868
• Parties: VILLAGE OF SOUTH HOLLAND v. STEIN.
• Court: Illinois Supreme Court

373 Ill. 472

26 N.E.2d 868

VILLAGE OF SOUTH HOLLAND

v.STEIN.

No. 25468.

Supreme Court of Illinois.

April 17, 1940.

Mrs. Paul Stein was found guilty in prosecution for soliciting subscriptions for a magazine without a solicitor's permit from the Board of Trustees of the Village of South Holland, and she appeals.

Judgment reversed.Appeal from Criminal Court, Cook County; Daniel P. Trude, judge.

Landon L. Chapman, of Chicago (Hayden C. Covington, of New York City, of counsel), for appellant.

No appearance for appellee.

GUNN, Justice.

Appellant, Mrs. Paul Stein, was charged with soliciting subscriptions for a magazine without a solicitor's permit from the board of trustees of the village of South Holland, Illinois, and upon trial was fined $5 and costs. The case was appealed to the criminal court of Cook county and tried upon an agreed statement of facts. Appellant was found guilty and fined the sum of $5. Motion was made to dismiss the complaint on the ground that the ordinance violated both the constitution of the State of Illinois and the constitution of the United States in that it denied and restricted: (a) Freedom of speech and press; (b) freedom of worship, and (c) it is too vague and indefinite to provide a certain standard of guilt. After judgment in the criminal court the judge signed a certificate that the validity of a municipal ordinance was involved and that in his opinion the public interest required an appeal be taken directly to the Supreme Court.

The ordinance made it unlawful for any one to go in a private residence for the purpose of soliciting or to canvass for orders for goods, wares, merchandise or services of any description or solicit for the purpose of offering to furnish goods, wares, merchandise or services, to induce such orders, without obtaining a solicitor's permit. An application was required of the village board, setting forth detailed information. The village board, after investigation, may issue the permit if it believes the applicant is of good moral character and proposes to engage in a lawful or legitimate commercial or professional enterprise but the permit shall expire on the same day in which the permit was issued. The ordinance also provides for the revocation of such permit, and for a violation of the ordinance a fine of not less than $2 nor more than $100 is imposed.

Appellant belongs to an organization called ‘Jehovah's Witnesses' and offered to James Gouwens a one-year's subscription to a magazine called ‘The Watch Tower,’ along with a book entitled ‘Enemies,’ a pamphlet entitled ‘Fascism or Freedom’ and another pamphlet entitled ‘Facing Facts,’ all for the sum of one dollar, which publications said Gouwens then bought and paid for. Appellant was endeavoring to get other subscriptions and did not make an application or obtain a permit as required by the ordinance. Appellant is a minister of the gospel and if the party solicited was interested she inquired if she might play a record on her phonograph which she had with her, which contained a three-minute Bible lecture.

Among the many errors assigned is whether the ordinance materially interferes with and abridges freedom of speech and freedom of press as guaranteed by the constitution of Illinois and the fourteenth amendment of the constitution of the United States, and whether the ordinance is void for want of power in the village to enact it. A constitutional question may involve one under the Federal constitution as well as the State constitution. VanDyke v. Illinois Commercial Men's Ass'n, 358 Ill. 458, 193 N.E. 490;Rothschild & Co. v. Steger & Sons Co. 256 Ill. 196, 99 N.E. 920, 42 L.R.A., N.S., 793, Ann.Cas.1913E 276.

The magazine for which appellant was soliciting, introduced in evidence, contained some ten or twelve pages of printed matter and purports to be published semimonthly by the Watch Tower and Tract Society. The book entitled ‘Enemies' is cloth bound and contains over three-hundred pages purporting to expose the enemies of mankind and to point out the way of protection from them. The other two tracts are pamphlets containing over fity pages each. The receipt issued to the purchaser recites that ‘The Watch Tower’ has been subscribed for by J. J. Gouwens for a period of one year.

Section 1 of the ordinance prohibits any one from going ‘in or upon any private residence in the village for the purpose of soliciting * * * or canvassing for orders for goods, wares and merchandise, or services of any character or description’ without having first applied for and received a solicitor's permit.

Section 4 of article 5 of the Cities and Villages act (Ill.Rev.Stat.1939, chap. 24, par. 65.3) authorizes a city to fix the amount, terms and manner of issuing and revoking licenses. It has been held that this section does not delegate unlimited licensing powers to cities, but has reference to subjects and occupations over which municipalities are given express power. Arms v. City of Chicago, 314 Ill. 316, 145 N.E. 407. Section 41 of article 5 of the Cities and Villages act (Ill.Rev.Stat.1939, chap. 24, par. 65.40) authorizes cities to license, tax, regulate, suppress and prohibit hawkers, peddlers, etc. In Emmons v. City of Lewistown, 132 Ill. 380, 24 N.E. 58,8 L.R.A. 328, 22 Am.St.Rep. 540, this court held that a city has no authority to require book canvassers who solicit subscriptions for books for future delivery, to obtain a license, since such canvassers are neither hawkers nor peddlers. See, also, Village of Cerro Gordo v. Rawlings, 135 Ill. 36, 25 N.E. 1006.

In City of Chicago v. Schultz, 341 Ill. 208, 173 N.E. 276, this court held that an ordinance making it a punishable offense to distribute or hand out any circular, dodger, handbill or pamphlet, card, picture or advertising matter of any kind whatsoever on the streets and sidewalks of the city, was an unreasonable exercise of the police power or of the power to regulate the use of the streets, as there was no express grant of power which would enable the city to pass such an ordinance. Without directly referring to any specific provision of the constitution it was held that such an ordinance was invalid under our system of government.

It might well be doubted whether the ordinance in question would require a permit to take subscriptions for the publication involved, but the pamphlets and book would come within the term ‘goods, wares and merchandise.’ Even though the latter come within the provisions of the ordinance, still they are publications purporting to be educational, informative and possibly semi-religious in character, and all must be regarded as being within the same category in considering whether the constitutional rights of the appellant have been violated. Appellant has been convicted under the ordinance of taking subscriptionsfor a published magazine and for furnishing printed publications, as the charge expressly states the offense to be soliciting without a permit under an ordinance entitled ‘Solicitors and Peddlers Ordinance,’ although no reference to such is made. Without reference to the question whether the acts of appellant are within the specific provisions of the ordinance, the trial court, nevertheless, held that her acts were covered by the provisions thereof.

Section 4 of article 2 of the Constitution of Illinois, Smith-Hurd Stats., provides: ‘Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty’ etc. The constitution of the United States, article 1 of the amendments, provides: ‘Congress shall make no law * * * abridging the freedom of speech, or of the press,’ etc., and it has been held that this privilege is secured to all persons by the fourteenth amendment of the constitution. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660;Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949;DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278;Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81...