Zimmerman v. Village of London, Ohio

• Decision Date: 25 April 1941
• Docket Number: Civ. No. 321.
• Citation: 38 F. Supp. 582
• Parties: ZIMMERMAN et al. v. VILLAGE OF LONDON, OHIO, et al.
• Court: U.S. District Court — Southern District of Ohio

38 F. Supp. 582

ZIMMERMAN et al. v. VILLAGE OF LONDON, OHIO, et al.

Civ. No. 321.

District Court, S. D. Ohio, E. D.

April 25, 1941.

Victor F. Schmidt, of Middletown, Ohio, for plaintiff.

D. Harland Jackman, of London, Ohio, for defendants Village of London, Mayor of London, and Marshal of London.

J. Robert Tanner, of London, Ohio, for Sheriff of Madison County.

UNDERWOOD, District Judge.

This is an action brought by George H. Zimmerman and others on behalf of themselves individually and for the use and benefit of all Jehovah's Witnesses who operate and who desire to continue to operate in the Village of London, Ohio.

The suit is brought against the Village of London, Ohio; and E. P. Speasmaker, individually and as Mayor; James Kaveney, individually and as Village Marshal; and Gorman Clark, individually and as Sheriff of Madison County, Ohio, however, Gorman Clark has since been dismissed as a defendant. The petition prays for an interlocutory or preliminary injunction; and upon final hearing, for an order declaring Ordinance No. 767 of the Village of London void, a permanent injunction enjoining the defendants from enforcing said ordinance, and for other equitable relief. It being the theory of the plaintiffs that the ordinance in question is void and unconstitutional in that "it violates the privileges of free speech, free press, freedom of worship and freedom of assembly," guaranteed by the Fourteenth Amendment to the Constitution of the United States.

The plaintiffs allege that the provisions of said ordinance have been enforced against them and that while distributing printed matter from door to door on January 12, 1941, in the Village of London, members of the group were arrested, charged with violating said ordinance, brought before the Mayor and fined and some of them were incarcerated for several hours. These allegations are admitted and the matter is now before the Court for final determination upon its merits. No testimony has been taken, but by agreement, the case has been submitted upon the pleadings and the final stipulation signed by the parties. The essential question for determination is whether or not the enforcement of Ordinance No. 767 of London, Ohio, as enforced against these plaintiffs for the acts done, denied or infringed their constitutional rights.

It has been stipulated that said ordinance reads as follows:

"Ordinance Number 767

"Provided for the Declaration of a Nuisance.

"Be it ordained by the Council of the Village of London, Ohio

"Section 1. The practice of going in and upon private residences in the Village of London, Ohio, 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 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 misdemeaner.

"Section 2. The Village Marshal and Police Force of the Village of London, Ohio, are hereby required and directed to suppress the same, and to abate any such nuisance as is described in the first section of the ordinance.

"Section 3. Any person convicted of perpetrating a nuisance as described and prohibited in the first section of this ordinance upon conviction thereof shall be fined in a sum not less than $10.00 or more than $50.00, together with costs of proceedings."

The foregoing constitutes the material part of the ordinance which is of the type commonly known as "The Green River Ordinance."

It is stipulated that the affidavits charging violation of the ordinance and upon which the plaintiff George H. Zimmerman and others were arrested, charged that they "went upon the premises of private residences, uninvited, for the purpose of vending and/or disposing of merchandise, to-wit: literature, contrary to Village Ordinance No. 767."

Therefore, there is no question but that the arrests were made for distributing printed material upon private property without invitation of the owner or occupant. It is therefore the duty of this Court to determine whether or not a restriction of this character can be imposed without violating the provisions of the Federal Constitution.

The Fourteenth Amendment, Section 1, provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It has been repeatedly held by the Supreme Court of the United States that freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by the Congress, are among the fundamental personal rights and liberties protected by the Fourteenth Amendment from invasion by state action. Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138...