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JONES v. OPELIKA BOWDEN ET AL. V. FORT SMITH JOBIN V. ARIZONA

decided: June 8, 1942.

JONES
v.
OPELIKA

BOWDEN ET AL
v.
FORT SMITH

JOBIN
v.
ARIZONA



CERTIORARI TO THE SUPREME COURT OF ALABAMA; CERTIORARI TO THE SUPREME COURT OF ARKANSAS; APPEAL FROM THE SUPREME COURT OF ARIZONA.

Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Byrnes, Jackson

Author: Reed

[ 316 U.S. Page 585]

 MR. JUSTICE REED delivered the opinion of the Court.

By writ of certiorari in Nos. 280 and 314 and by appeal in No. 966 we have before us the question of the constitutionality

[ 316 U.S. Page 586]

     of various city ordinances imposing the license taxes upon the sale of printed matter for nonpayment of which the appellant, Jobin, and the petitioners, Jones, Bowden and Sanders, all members of the organization known as Jehovah's Witnesses, were convicted.

No. 280

The City of Opelika, Alabama, filed a complaint in the Circuit Court of Lee County, charging petitioner Jones with violation of its licensing ordinance by selling books without a license, by operating as a Book Agent without a license, and by operating as a transient agent, dealer or distributor of books without a license.*fn1 The license fee for Book Agents (Bibles excepted) was $10 per annum, that for transient agents, dealers or distributors of books $5.*fn2

[ 316 U.S. Page 587]

     Under § 1 of the ordinance, all licenses were subject to revocation in the discretion of the City Commission, with or without notice.*fn3 There is a clause providing for severance in case of invalidity of any section, condition or provision.*fn4 Petitioner demurred, alleging that the ordinance, because of unlimited discretion in revocation and requirement of a license, was an unconstitutional encroachment upon freedom of the press. During the trial, without a jury, these contentions, with the added claim of interference with freedom of religion, were renewed at the end of the city's case, and at the close of all the evidence. The court overruled these motions, and found petitioner guilty on evidence that, without a license, he had been displaying pamphlets in his upraised hand and walking on a city street selling them two for five cents.*fn5 The court excluded, as irrelevant, testimony designed to show that the petitioner was an ordained minister, and that his activities

[ 316 U.S. Page 588]

     were in furtherance of his beliefs and the teachings of Jehovah's Witnesses. Once again, by an unsuccessful motion for new trial, the constitutional issues were raised. The Court of Appeals of Alabama reversed the conviction on appeal, because it thought the unlimited discretion of the City Commission to revoke the licenses invalidated the ordinance. Without discussion of this point, the Supreme Court of Alabama decided that nondiscriminatory licensing of the sale of books or tracts was constitutional, reversed the Court of Appeals, and stayed execution pending certiorari. 241 Ala. 279, 3 So. 2d 76. This Court, having granted certiorari, 314 U.S. 593, dismissed the writ for lack of a final judgment. 315 U.S. 782. The Court of Appeals thereupon entered a judgment sustaining the conviction, which was affirmed by the Alabama Supreme Court and is final. 242 Ala. 549, 7 So. 2d 503. We therefore grant the petition for rehearing of the dismissal of the writ, and proceed with the consideration of the case.

No. 314

Petitioners Bowden and Sanders were arrested by police officers of Fort Smith, Arkansas, brought before the Municipal Court on charges of violation of City Ordinance No. 1172, and convicted. They appealed to the Sebastian Circuit Court, and there moved to dismiss on the ground that the ordinance was an unconstitutional restriction of freedom of religion and of the press, contrary to the Fourteenth Amendment. The circuit judge heard the case de novo without a jury, on stipulated facts. The ordinance required a license "For each person peddling dry goods, notions, wearing apparel, household goods or other articles not herein or otherwise specifically mentioned $25 per month, $10 per week, $2.50 per day."*fn6

[ 316 U.S. Page 589]

     The petitioners, in the exercise of their beliefs concerning their duty to preach the gospel, admitted going from house to house without a license, playing phonographic transcriptions of Bible lectures, and distributing books setting forth their views to the residents in return for a contribution of twenty-five cents per book. When persons desiring books were unable to contribute, the books were in some instances given away free. The circuit judge concluded as a matter of law that the books were "other articles" and that petitioners were guilty of peddling without a license. A motion for new trial was denied. On appeal the Supreme Court of Arkansas held the ordinance constitutional on the authority of its previous decision in Cook v. Harrison, 180 Ark. 546, 21 S. W. 2d 966, and affirmed the convictions. 202 Ark. 614, 151 S. W. 2d 1000. This Court denied certiorari, 314 U.S. 651, but later, because of the similarity of the issues presented to those in the Jobin case, No. 966, vacated the denial of certiorari and issued a writ. 315 U.S. 793.

No. 966

The City of Casa Grande, Arizona, by ordinance made it a misdemeanor for any person to carry on any occupation or business specified without first procuring a license.*fn7

[ 316 U.S. Page 590]

     Transient merchants, peddlers and street vendors were listed as subject to a quarterly license fee of $25.00, payable in advance.*fn8 In the Superior Court of Pinal County, Jobin was tried and convicted by a jury on a complaint charging that, not having "a permanent place of business in the City," he there carried on the "business of peddling, vending, selling, offering for sale and soliciting the sale of

[ 316 U.S. Page 591]

     goods, wares and merchandise, to wit: pamphlets, books and publications without first having procured a license," contrary to the ordinance. The evidence for the State showed that, without a license, the appellant called at two homes and a laundry, and offered for sale and sold books and pamphlets of a religious nature. At one home, accompanied by his wife, he was refused admission, but was allowed by the girl who came to the door to play a portable phonograph on the porch. The girl purchased one of his stock of books, "Religion," for a quarter, and received a pamphlet free. During the conversation, he stated that he was an ordained minister preaching the gospel, and quoted passages from the Bible. At the second home, the lady of the house allowed him and his wife to enter and play the phonograph, but she refused to buy either books or pamphlets. When departing the appellant left some literature on the table, although informed by the lady that it would not be read and had better be given to someone else. At the laundry, the appellant introduced himself as one of the Jehovah's Witnesses and discussed with the proprietor their work and religion generally. The proprietor bought the book "Religion" for a quarter, but declined to buy others at the same price. He was given a pamphlet free. When arrested, the appellant stated that he was "selling religious books and preaching the gospel of the kingdom," and that because of his religious beliefs he would not take out a license. A motion at the close of the evidence for a directed verdict of acquittal, on the ground that the ordinance violated the Fourteenth Amendment, was denied. The jury was instructed to acquit unless it found the defendant was selling books or pamphlets. It returned a verdict of guilty. On appeal, the Supreme Court of Arizona held that the ordinance, an "ordinary occupational license tax ordinance," did not deny freedom of religion and of the press, and affirmed the conviction. 118 P. 2d 97. An appeal to this Court

[ 316 U.S. Page 592]

     was allowed under § 237 of the Judicial Code, 28 U. S. C. § 344.

The Opelika ordinance required book agents to pay $10.00 per annum, transient distributors of books (annual only) $5.00. The license fee in Casa Grande was $25 per quarter, that in Fort Smith ranged from $2.50 per day to $25 per month. All the fees were small, yet substantial. But the appellant and the petitioners, so far as the records disclose, advanced no claim and presented no proof in the courts below that these fees were invalid because so high as to make the cost of compliance a deterrent to the further distribution of their literature in those cities. Although petitioners in No. 314 contended that their enterprise was operated at a loss, there was no suggestion that they could not obtain from the same sources which now supply the funds to meet whatever deficit there may be, sums sufficient to defray license fees also. The amount of the fees was not considered in the opinions below, except for a bare statement by the Alabama court that the exaction was "reasonable," and neither the briefs nor the assignments of error in this Court have directed their attack specifically to that issue. Consequently there is not before us the question of the power to lay fees, objectionable in their effect because of their size, upon the constitutionally protected rights of free speech, press or the exercise of religion. If the size of the fees were to be considered, to reach a conclusion one would desire to know the estimated volume, the margin of profit, the solicitor's commission, the expense of policing and other pertinent facts of income and expense. In the circumstances, we venture no opinion concerning the validity of license taxes if it were proved, or at least distinctly claimed, that the burden of the tax was a substantial clog upon activities of the sort here involved.*fn9 The

[ 316 U.S. Page 593]

     sole constitutional question considered is whether a nondiscriminatory license fee, presumably appropriate in amount, may be imposed upon these activities.

We turn to the constitutional problem squarely presented by these ordinances. There are ethical principles of greater value to mankind than the guarantees of the Constitution, personal liberties which are beyond the power of government to impair. These principles and liberties belong to the mental and spiritual realm, where the judgments and decrees of mundane courts are ineffective to direct the course of man. The rights of which our Constitution speaks have a more earthy quality. They are not absolutes*fn10 to be exercised independently of other cherished privileges, protected by the same organic instrument. Conflicts in the exercise of rights arise, and the conflicting forces seek adjustments in the courts, as do these parties, claiming on the one side the freedom of religion, speech and the press, guaranteed by the Fourteenth Amendment,*fn11 and on the other the right to employ the sovereign power explicitly reserved to the State by the Tenth Amendment to ensure orderly living, without which constitutional guarantees of civil liberties would be a mockery.*fn12 Courts, no more than Constitutions, can intrude into the consciences of men or compel them to believe contrary to their faith or think contrary

[ 316 U.S. Page 594]

     to their convictions; but courts are competent to adjudge the acts men do under color of a constitutional right, such as that of freedom of speech or of the press or the free exercise of religion, and to determine whether the claimed right is limited by other recognized powers, equally precious to mankind.*fn13 So the mind and spirit of man remain forever free, while his actions rest subject to necessary accommodation to the competing needs of his fellows.

If all expression of religion or opinion, however, were subject to the discretion of authority, our unfettered dynamic thoughts or moral impulses might be made only colorless and sterile ideas. To give them life and force, the Constitution protects their use. No difference of view as to the importance of the freedoms of press or religion exists. They are "fundamental personal rights and liberties." Schneider v. State, 308 U.S. 147, 161. To proscribe the dissemination of doctrines or arguments which do not transgress military or moral limits is to destroy the principal bases of democracy, -- knowledge and discussion. One man, with views contrary to the rest of his compatriots, is entitled to the privilege of expressing his ideas by speech or broadside to anyone willing to listen or to read. Too many settled beliefs have in time been rejected to justify this generation in refusing a hearing to its own dissentients. But that hearing may be limited by action of the proper legislative body to times, places and methods for the enlightenment of the community which, in view of existing social and economic conditions, are not at odds with the preservation of peace and good order.

This means that the proponents of ideas cannot determine entirely for themselves the time and place and manner for the diffusion of knowledge or for their evangelism, any more than the civil authorities may hamper or suppress the public dissemination of facts and principles

[ 316 U.S. Page 595]

     by the people.*fn14 The ordinary requirements of civilized life compel this adjustment of interests. The task of reconcilement is made harder by the tendency to accept as dominant any contention supported by a claim of interference with the practice of religion or the spread of ideas. Believing, as this Nation has from the first, that the freedoms of worship and expression are closely akin to the illimitable privileges of thought itself, any legislation affecting those freedoms is scrutinized to see that the interferences allowed are only those appropriate to the maintenance of a civilized society. The determination of what limitations may be permitted under such an abstract test rests with the legislative bodies, the courts, the executive, and the people themselves, guided by the experience of the past, the needs of revenue for law enforcement, the requirements and capacities of police protection, the dangers of disorder, and other pertinent factors.

Upon the courts falls the duty of determining the validity of such enactments as may be challenged as unconstitutional by litigants.*fn15 In dealing with these delicate adjustments, this Court denies any place to administrative censorship of ideas or capricious approval of distributors. In Lovell v. Griffin, 303 U.S. 444, the requirement of permission from the city manager invalidated the ordinance, pp. 447 and 451; in Schneider v. State, that of a police officer, pp. 157 and 163. In the Cantwell case, the secretary of the public welfare council was to determine whether the object of charitable solicitation was worthy, p. 302. We held the requirement bad.*fn16 Ordinances absolutely

[ 316 U.S. Page 596]

     prohibiting the exercise of the right to disseminate information are, a fortiori, invalid.*fn17

The differences between censorship and complete prohibition, either of subject matter or the individuals participating, upon the one hand, and regulation of the conduct of individuals in the time, manner and place of their activities upon the other, are decisive. "One who is a martyr to a principle . . . does not prove by his martyrdom that he has kept within the law," said Mr. Justice Cardozo, concurring in Hamilton v. Regents, 293 U.S. 245, 268, which held that conscientious objection to military training would not excuse a student, during his enrollment, from attending required courses in that science.*fn18 There is to be noted, too, a distinction between nondiscriminatory regulation of operations which are incidental to the exercise of religion or the freedom of speech or the press and those which are imposed upon the religious rite itself or the unmixed dissemination of information. Casual reflection verifies the suggestion that both teachers and preachers need to receive support for themselves as well as alms and benefactions for charity and the spread of knowledge. But when, as in these cases, the practioners of these noble callings choose to utilize the vending of their religious books and tracts as a source of funds, the financial aspects of their transactions need not be wholly disregarded. To subject any religious or didactic group to a reasonable fee for their money-making activities does not require a finding that the licensed acts are purely commercial. It is enough that money is earned by the sale

[ 316 U.S. Page 597]

     of articles. A book agent cannot escape a license requirement by a plea that it is a tax on knowledge. It would hardly be contended that the publication of newspapers is not subject to the usual governmental fiscal exactions, Giragi v. Moore, 301 U.S. 670; 48 Ariz. 33, 58 P. 2d 1249; 49 Ariz. 74, 64 P. 2d 819, or the obligations placed by statutes on other business. Associated Press v. Labor Board, 301 U.S. 103, 130. The Constitution draws no line between a payment from gross receipts or a net income tax and a suitably calculated occupational license. Commercial advertising cannot escape control by the simple expedient of printing matter of public interest on the same sheet or handbill. Valentine v. Chrestensen, ante, p. 52. Nor does the fact that to the participants a formation ...


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