Green River v. Martin

Full title: TOWN OF GREEN RIVER, Plaintiff and Respondent, vs. WILLIAM W. MARTIN…

Court: Supreme Court of Wyoming

Date published: Mar 10, 1953

254 P.2d 198 (Wyo. 1953)

254 P.2d 198

Opinion

No. 2568

March 10, 1953

Appeal from the District Court of Sweetwater County.

Reversed, with directions.

For the defendant and appellant the cause was submitted upon the brief and oral argument of Albert E. Nelson of Rock Springs, Wyoming, and Hayden C. Covington of Brooklyn, New York.

For the plaintiff and respondent the cause was submitted upon the brief and also oral argument of Frank R. Schofield of Green River, Wyoming.

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

POINTS OF COUNSEL FOR APPELLANT

It has been judicially declared that were the administration of the great variety of religious charities with which our country so happily abounds, to depend upon the opinion of the judges, who from time to time succeed each other in the administration of justice, upon the question whether the doctrines intended to be upheld and inculcated by such charities, were consonant to the doctrines of the Bible; we should be entirely at sea, without helm or compass, in this land of unlimited religious toleration. Knistern v. Lutheran Churches, 1 Sandf. Ch. 439, 507 (N.Y.) All religions, however orthodox or heterodox, Christian or pagan, and the Mormon, the Brahmin and the Jew, the Swedenborgian and the Buddhist, the Catholic and the Quaker as all possessing equal rights. Donahue v. Richards, 38 Me. 379, 409; People v. Board of Education, 245 Ill. 334, 349; Grimes v. Harmon, 35 Ind. 198, 211. Protection is therefore afforded not only to the different denominations of the Christian religion, but is due to every religious body, organization or society whose members are accustomed to come together for the purpose of worshipping the Supreme Being. State ex rel. Freeman v. Scheve, 65 Neb. 853, 879. It is now clear that the legislative, executive and judicial policy concerning religious organizations, beliefs and practices is one of masterly inactivity, of hands off, of fair play and no favors. People v. Steele, 2 Bar. 397. So far as religion is concerned the laissez faire theory of government has been given the widest possible scope. State ex rel Freeman v. Scheve, supra. History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities. Minerville v. Gobitis, 310 U.S. 586. No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against those who dare to express or practice unorthodox religious beliefs. And the Jehovah's Witnesses are living proof of the fact that even in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure. Theirs is a militant and unpopular faith, pursued with a fanatical zeal. They have suffered brutal beatings; their property has been destroyed; they have been harassed at every turn by the resurrection and enforcement of little used ordinances and statutes. See Mulder and Comisky, Jehovah's Witnesses Mold Constitutional Law, 2 Bill of Rights Review, No. 4, p. 262. To them, along with other presentday religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom. Price v. Commonwealth, 321 U.S. 158.

The ordinance does not prohibit the activity of appellant because it is confined to commercial solicitation and does not cover door-to-door preaching and the distribution of Bible literature accompanied by incidental receipt of contributions. The Green River ordinance is unconstitutional as construed and applied to the facts in the case because it abridges freedom of the press and freedom of worship contrary to the First and Fourteenth Amendments to the United States Constitution and Sections 18 and 20 of the Constitution of Wyoming. The Supreme Court of the United States has considered this precise type of activity and held that it enjoys the same high estate in the law as does preaching from the pulpit. Murdock v. Pennsylvania, 319 U.S. 105. The great weight of judicial authority from the states of the union by courts construing this type of law has uniformly declared that the preaching activity of Jehovah's Witnesses from house to house is exempt, not within the terms of hawkers' and peddlers' laws. These courts hold that the activity of Jehovah's Witnesses is charitable and Christian; that the work is done as ministers of the gospel; that the work is preaching, and not selling. The courts have held that the contributions and donations received by distributors of the literature are entirely incidental to the primary aim and endeavor of Jehovah's Witnesses, which is to disseminate literature containing information and opinion on vital Bible subjects, enlightening the people upon revelation of fulfilled Bible prophecy in this modern day. Cincinnati v. Mosier, 61 Ohio App. 81, 22 N.E.2d 418; Semansky v. Stark, 196 La, 307, 199 So. 129; Shreveport v. Teague, 200 La. 679, 8 So.2d 640; State v. Meredith, 197 S.C. 351, 15 S.E.2d 678; Thomas v. Atlanta, 59 Ga. App. 520, 1 S.E.2d 598; Wilson v. Russell, 146 Fla. 539, 1 So.2d 679; Hough v. Woodruff, 147 Fla. 200, 2 So.2d 577. The Green River ordinance is unconstitutional as construed and applied to the facts in the case because it abridges freedom of the press and freedom of worship contrary to the First and Fourteenth Amendments to the United States Constitution and Sections 18 and 20 of the Constitution of Wyoming. The two decisions Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456 and Town of Green River v. Fuller Brush Co., 65 F.2d 112, C.A. 10th are inapplicable and distinguishable because the facts did not involve evangelizing or door-to-door preaching but commercial selling of brushes. These two decisions are opposed by a greater weight of authority. Prior v. White, 132 Fla. 1, 180 So. 347; Clay v. Matthews, 185 Ga. 279, 194 S.E. 172; DeBarry v. LaGrange, 62 Ga. App. 74, 8 S.E.2d 146; Osceola v. Blair, 231 Iowa 770, 2 N.W.2d 83; City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S.W.2d 237; Jewel Tea Co. v. Bel Air, 172 Md. 536, 192 A. 417. It has been contended by some that going from door to door with Bible literature is not a way of worship. To thus hold is wrong, because the law of the United States and the Supreme Court of this land specifically define that no person has the right to say whether or not the act of another is not a genuinely obedient act of worship of Almighty God. Reynolds v. United States, 98 U.S. 145.

POINTS OF COUNSEL FOR SEVENTH DAY ADVENTISTS AS AMICUS CURIAE

The hand distribution of religious tracts is an ageold form of missionary evangelism as old as the history of printing presses. It has been a potent force in various religious movements down through the years. This form of evangelism is utilized to-day on a large scale by various religious sects whose colporteurs carry the Gospel to thousands upon thousands of homes and seek through personal visitations to win adherents to their faith. It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. It also has the same claim as the others to the guarantees of freedom of speech and freedom of the press. Murdock v. Pennsylvania, 319 U.S. 105, 108, 109.

Communication by door to door distribution is an essential part of the protected rights. Liberty of circulation is as essential to the freedom of the press as the liberty of publishing, without circulation, the publication would be of little value. Ex parte Jackson, 96 U.S. 727, 733; Lovell v. Griffin, 308 U.S. 444, 452. Liberty to evangelize is as essential to the freedom of religion as the liberty of religious worship. Without the right to evangelize the freedom of religious belief would leave many church members unable to discharge what is by many sects regarded as an essential part of their duty to God. In Martin v. Struthers, 319 U.S. 141 the court again pointed out (p. 146): "Door to door distribution of circulars is essential to the poorly financed causes of little people."

Situations will arise where it will be difficult to determine whether a particular activity is religious or purely commercial. The distinction at times is vital. 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 at 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. The right to use the press for expressing one's views is not to be measured by the protection afforded commercial handbills. It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge. 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. Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way. Mr. Justice Douglas in Murdock v. Pennsylvania, 319 U.S. 105, 110, 111.

POINTS OF COUNSEL FOR RESPONDENT

The act of strangers in going in and upon private property uninvited and ringing doorbells is not a property right. Town of Green River v. Fuller Brush Co., 65 F.2d 112, (C.C.A. 10), 88 A.L.R. 177. The State Supreme Courts of the various states are in practically unanimous agreement that such activity constitutes a sale in the commercial sense. Commonwealth of Mass. v. Anderson, 272 Mass., 100, 172 N.E. 114, 69 A.L.R. 1097; Cook v. Harrison, 180 Ark. 546, 21 S.W.2d 966; Bowden v. City of Fort Smith, Arkansas, 202 Ark. 614, 151 S.W.2d 1000; Jobin v. State of Arizona, 58 Ariz. 141, 118 P.2d 97; Jones v. City of Opelika, 30 Ala. App. 416, 7 So.2d 505; City of Portland v. Thornton, 174 Or. 508, 149 P.2d 972. The ordinance under review contains the word "hawker" in section 1 and the activities of a hawker are prohibited thereby. The appellant described the members of Jehovah's Witnesses as colporteurs. Webster's International Dictionary defines a colporteur as follows: — "Hawker, specifically, one who distributes or sells religious tracts or books". Thus, if the words are synonymous, by definition the activities of appellant are prohibited by the ordinance, unless the word can be said to be used in a limited sense and with a special meaning which would remove or qualify the meaning as placed thereon by Webster. A Jehovah's Witness in exercising his right of distributing his literature, may not deny to others their right to be secure in their homes against unwanted and unwarranted intrusion. People, on Inf. Hotaling v. Dale, 47 N YS. (2nd) 702. The decisions sanctioning right of Jehovah's Witnesses to try to convert others should not be construed as granting limitless and boundless freedom to any individual to decide for himself whether he will obey any particular law. People v. Lo Vecchio, 56 NYS (2nd) 354. The kind of activity indulged in by the appellant has all of the elements of a commercial transaction, and the ruling of this court in Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456 is controlling.

The distinction between a religious belief and a religious practice has raised some difficult questions for the courts in trying to determine where the line separating the two ought to be. Freedom of religion is guaranteed but freedom of religious practice is not. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244, Davis v. Beason, 133 U.S. 333, 33 L.Ed. 637.

Laws are made for the government of action, and while they cannot interfere with mere religious beliefs, they may with practice. Reynolds v. U.S. 98 U.S. 145, 25 L.Ed. 244. The First Amendment was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, to exhibit his sentiments in such form of worship as he thinks proper, not injurious to the equal rights of others. Davis v. Beason, 133 U.S. 10 S.Ct. 299. The right of privacy has been judicially defined as the right to be let alone. Brnets v. Morgan, 221 Ky. 765, 299 S.W. 967. A man's spiritual nature and his feelings are as much entitled to protection as are his limbs. And where else can a man be alone with his thoughts but in the privacy of the home without being annoyed or disturbed by strangers. Frequently, the grounds urged to defeat the right of privacy have been the freedom of the press and freedom of speech. 138 A.L.R. 38. Religious liberty has always been granted the widest possible latitude consistent with the public health, safety, morals and convenience. It has never been the law that freedom of religion is not without some limitations when the best interests of society require some practices be curtailed or stopped in their entirety. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244.

OPINION

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 residence, 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; 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. 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, an ordinance exactly like that of Green River was in question. The defendant was charged in that "`he did go upon private residence 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. 351, 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, 38 N.Y.S. 2d 817; 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, 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. 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, 61 S.Ct. 1231, 1238. 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 council, or a meeting of the people of the town at a regular election or otherwise, would be forbidden. We do not think the ordinance contemplates that, though we do not say that reasonable restrictions may not be placed thereon. See People v. Bohnke, 287 N.Y. 154, 38 N.E.2d 478. The correctness of this interpretation is borne out by the arguments of counsel for the town of Green River in this court. He places the same construction on the ordinance as we do. He stresses the fact and insists that the activities of the defendant herein were commercial. And judging from the statements of the trial judge, as found in the record, he, too, places the same construction on the ordinance. In other words, the ordinance contemplates that in any event, the disposal and purpose of disposal of goods must be commercial, that is to say in connection with a sale and that such sale, or at least an offer of sale is a fundamental and essential requirement in order that a defendant may be found guilty under the ordinance. The clause "for the purpose of disposing of * * * the same", if construed without reference to peddling or hawking, would seem to refer back to the previous clause relating to the solicitation of orders for the sale of goods. As already stated, there is no claim nor allegation that any orders were solicited.

Let us, then, turn to the information filed in the case at bar. The defendant was charged with entering "upon the premises of John J. Thompson, a private residence, for the purpose of distributing and disposing of religious literature without prior invitation of the said John J. Thompson, contrary to ordinance No. 175." Compare this information with that in the Louisiana case of City of Shreveport v. Teague, supra. The defendant was not charged with the sale or offer for sale or with any purpose of sale or offer of sale of any such literature. Had he been charged with peddling or hawking these goods, a sale or offer for sale would probably have been implied. 39 C.J.S. 801, note 26. In other words, the information lacks one of the fundamental and essential requisites in order to constitute a crime under the ordinance. It is stated in 42 C.J.S. 1022 that: "If all the facts stated are true, and yet accused can be innocent of the crime intended to be charged, the indictment is bad. * * * The failure properly to allege any material fact or circumstances necessary to constitute the crime charged is a fatal defect, and such omissions cannot be supplied by a charge that the act was committed `contrary to law' * * *." It is true that for some unexplained reason — counsel thinks perhaps that the fatal defect could be urged at any stage of the proceedings, or even under a writ of habeas corpus — no objection was raised to the information except upon the grounds heretofore stated. Defects of substance were not waived. 31 C.J. 875; 42 C.J.S. 1343-1344; 42 C.J.S. 1360.

Ordinarily errors to which no exception has been taken, and which have not been called to the attention of the appellate court will be disregarded. See Espy v. State, 54 Wyo. 291, 92 P.2d 549, and cases cited. But there is an exception to that general rule. It does not, we think, behove this court to overlook and disregard a fatal defect which so patently appears in the record before us that we could scarcely avoid noting it, even though both sides would have preferred that we would dispose of this case on another ground. Appellate courts will notice fundamental errors plainly appearing in the record, including fatal defects in the information, even though not excepted to or called to their attention by counsel. State v. Massey, 274 Mo. 578, 204 S.W. 541; 24 C.J.S. 704-705; 24 C.J.S. 331-332.

Furthermore, the defendant was charged only with entering the premises of John J. Thompson for the purpose mentioned, not with entering anyone else's premises. The only witness produced by the town to show this fact was the testimony of Thompson himself. He did not appear as a witness, but the parties stipulated as to what he would testify. That stipulation is as follows:

"While carrying on the above described door-to-door preaching activity on Friday, November 16, 1951, (Note — None had been shown so far as the record shows.) the defendant approached the house of John. J. Thompson located in the Town of Green River, Wyoming, John J. Thompson being the complaining witness in this case. The defendant knocked at the door, summoning Mr. Thompson, who answered the knock. The defendant explained the nature of his work as above described. (Note — None had been described as far as the record shows.) Mr. Thompson asked the defendant if he had a license to do the door-to-door work. The defendant stated he did not require a license to preach the Gospel from door to door. Mr. Thompson thereupon informed the defendant that he was not interested in the work of Jehovah's Witnesses. The defendant thanked him and walked away from the house. At the time Mr. Thompson answered the door, his baby inside the house was undressed and was exposed to the cold air from the open door. That's all."

The most cursory glance at this testimony shows that the town wholly failed to prove by this witness any commercial transaction, or even that the defendant entered his premises to dispose of literature. The most the testimony shows is that defendant entered Thompson's premises in order to preach.

We must not be understood as being in sympathy with the disturbance of homes by Jehovah's Witnesses or by anybody else. We are a Christian — or more accurately speaking — a religious nation, church-going or not, with the ordinary householder having a fixed religious belief. We cannot help but think that there is a great deal of verity in the statement contained in Pittsburgh v. Ruffner, 134 Pa. Supra. Ct. 192, 199, speaking of a person's freedom of religious worship, where the court said: "The very clause of the Constitution which protects him in his religious worship, protects others from having his religious tenants and beliefs thrust upon them, against their will, in their homes and offices." But we must decide cases on the facts before us.

It follows from what we have said that the judgment of the trial court must be, and is reversed, with direction to acquit the defendant.

Reversed.

RINER, J., and ILSLEY, J., concur, the latter before his death.