Opinion
17498
February 9, 1959.
Messrs. Yarborough Parrott, of Florence, and Hayden C. Covington, of Brooklyn, New York, for Appellants, cite: As to the ordinance in question, when properly construed, not including appellants' activity of preaching the gospel of God's kingdom and incidentally disseminating Bible literature containing printed sermons as substitutes for oral sermons and simultaneously receiving money contributions toward such preaching work because (1) appellants are ministers within the meaning of the exemption appearing in Section 1 of the ordinance and (2) appellants are not book agents under subsection 5 of Section 3 (A) of the ordinance: 76 Ga. 181, 10 S.E. 231; 92 Tenn. 188, 21 S.W. 321; 42 Hun. (N.Y.) 27; 116 Ky. 711, 76 S.W. 522; 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292; 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120; 98 U.S. 145, 25 L.Ed. 244; 197 S.C. 351, 15 S.E.2d 678; 145 F. Supp. 868; 40 F. Supp. 15; 200 La. 679, 8 So.2d 640; 61 Ohio App. 81, 22 N.E.2d 418; 196 La. 307, 199 So. 129; 59 Ga. App. 520, 1 S.E.2d 598; 146 Fla. 539, 1 So.2d 569; 147 Fla. 299, 2 So.2d 577; 289 N.Y. 378, 46 N.E.2d 329; 230 Iowa 1217, 300 N.W. 523; 38 N.Y.S.2d 817; 170 Misc. 188, 9 N.Y.S.2d 941; 92 N.H. 178, 27 A.2d 94; 308 Mass. 370, 32 N.E.2d 684; 316 Mass. 97, 55 N.E.2d 6. As to the ordinance in question being unconstitutional as construed and applied to the preaching activity of appellants because it abridges and burdens their exercise of freedom of press and freedom of worship, contrary to the First and Fourteenth Amendments to the United States Constitution and Article I, Sections Seven, Nine and Ten of the Constitution of South Carolina: 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; 120 F.2d 87; 232 N.Y. 96, 133 N.E. 364; 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; 292 U.S. 535, 54 S.Ct. 830, 78 L.Ed. 1411; 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; 319 U.S. 105; 63 St. Ct. 870, 87 L.Ed. 1292; 316 U.S. 584, 62 S.Ct. 1232, 86 L.Ed. 1691; 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; 153 Fla. 84, 13 So.2d 704; 295 Ky. 595, 175 S.W.2d 18; 153 Pa. Super. 433, 34 A.2d 169; 266 S.W.2d 375; 154 Tex.Crim. 270, 226 S.W.2d 868; 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; 71 Wyo. 81, 254 P.2d 198; 35 A.L.R.2d 355; 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; 40 F. Supp. 15; 38 F. Supp. 582; 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869; 35 A.L.R.2d 355.
Jerome F. Pate, Esq., of Darlington, for Respondents, cite: As to appellants not being ministers of the gospel within the meaning of the Ordinance of the City of Darlington: 133 F.2d 1015; 136 F.2d 221; 130 F.2d 172. As to the exaction of a license fee by the City of Darlington for appellants' activities not violating appellants' constitutional rights of freedom of press, religion or speech: 319 U.S. 105, 87 L.Ed. 1292; 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938; 341 U.S. 622, 95 L.Ed. 1233, 71 S.Ct. 920, 35 A.L.R.2d 335; 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 Messrs. Yarborough Parrott, of Florence, and Hayden C. Covington, of Brooklyn, New York, for Appellants, in Reply, cite: As to the freedom of the press: 146 Fla. 539, 1 So.2d 569. As to Jehovah's Witnesses being ministers of the gospel and their from of preaching distinguishable from the orthodox preaching or pulpit preaching is, nonetheless, preaching: 319 U.S. 105; Encyclopedia Britannica, Vol. 4 (Ed. of 1892); 151 F.2d 633; 184 F.2d 972; 1 Sandf. Ch. (N.Y.) 439; 38 Me. 379; 65 Neb. 853; 59 Kan. 1, 51 P. 885; 39 Ala. 440; 118 S.W. 1171; 4 O.A.R. 501; 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828; 157 F.2d 939; 329 U.S. 692; 160 F.2d 999; 157 F.2d 939; 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148; 319 U.S. 105, 63 S. Ct. 870, 87 L.Ed. 1292; 35 Neb. 375, 53 N.W. 209; 1 Me. 102; 144 F.2d 944; 256 U.S. 345; 346 U.S. 389; 243 F.2d 99; 244 F.2d 46; 151 F.2d 633; 208 F.2d 801; 208 F.2d 770; 215 F.2d 575; 216 F.2d 258; 117 F. Supp. 598; 117 F. Supp. 595; 115 F. Supp. 141; 119 F. Supp. 111; 68 F. Supp. 820; 69 F. Supp. 181; 56 F. Supp. 773; 223 F.2d 15; 146 A.L.R. 81; 318 U.S. 413, 63 S. Ct. 669, 87 L.Ed. 869; 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262; 319 U.S. 105, 111, 63 S.Ct. 870, 87 L.Ed. 1292; 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691; 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; 321 U.S. 573, 64 S. Ct. 717, 88 L.Ed. 938; 355 U.S. 313, 78 S.Ct. 277; 197 S.C. 351, 15 S.E.2d 678.
February 9, 1959.
Appellants were convicted of violating an Ordinance of the City of Darlington, South Carolina, which provides:
"* * * That every person, firm, company, or corporation engaged in any business, trade or profession (except teachers and ministers of the Gospel) hereinafter mentioned within the corporate limits of the City of Darlington, shall obtain during the month of January, 1957, a license therefor before entering upon such calling, business, profession or occupation as hereinafter provided."
Section A, Subsection 5 thereof, provides:
"Agents, Books, on sales or gross receipts not exceeding $1,000.00 per annum ................................. 10.00 "For each additional $1,000.00, or majority fraction thereof ............................................. 1.00" Appellants are ministers of a religious sect known as Jehovah's Witnesses, an unincorporated group of missionary evangelists whose work is carried on by door to door visits, talking with the occupants, and distributing leaflets, tracts, and magazines which contain printed matter proclaiming and explaining their belief, the purpose being to acquaint such householders with the beliefs of Jehovah's Witnesses with the end to establishing a congregation. After discussing various religious topics with several residents, Appellants sought to obtain subscriptions to "The Watchtower" magazine on a contribution basis as part of their method of operation. When the prospect showed interest, other literature would also be proffered on the same basis. If, however, such interest was not evidenced, then the literature was offered free. If the householder was interested but unwilling or unable to contribute, the subscription would be given free. It is undisputed that the cost of the literature was the equivalent of the amount sought as a contribution. It is evident, therefore, that the "sale" of such literature by defendants was merely collateral to the main purpose in which they were engaged, which was to preach and teach the tenets of their religion; that the offer to sell and distribute this literature was part of the preaching and teaching of their faith with no profit motive involved and was merely incidental to the chief purpose, which was to acquaint others with the teaching of their faith. Preaching, teaching, distributing and taking subscriptions for such magazines and literature as we are here concerned with by members of a religious sect is not such business, trade, or profession within the contemplation of the Ordinance as to require compliance with Subsection 5 of Section A thereof. Alexander v. Greenville County, 49 S.C. 527 27 S.E. 469; State v. Moorehead, 42 S.C. 211, 20 S.E. 544, 26 L.R.A. 585, 46 Am. St. Rep. 719; State v. Belcher. 1 McMul. 40, 26 S.C. 5. 40; 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.We are not to be understood as holding that a business of selling or peddling books may not be subject to a license, but we do hold that under the circumstances heretofore related Appellants' motion for a directed verdict should have been granted and they should have been adjudged "Not Guilty."
Appellants also contend that the Ordinance denies them their constitutional rights in that it abridges such rights as guaranteed under the 1st and 14th Amendments to the United States Constitution and Sections 7, 9 and 10 of Art. 1 of the Constitution of South Carolina. However, in view of the foregoing, it becomes unnecessary to pass upon the Constitutional questions.
For the foregoing reasons, we are of opinion that the Judgment appealed from should be reversed and set aside and it is so ordered. Reversed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur.