Busey v. District of Columbia

129 F.2d 24, 75 U.S. App. D.C. 352, 1942 U.S. App. LEXIS 3282

• Court: Court of Appeals for the D.C. Circuit
• Decided: April 15, 1942
• Docket: 7918
• Status: Published

Opinions

EDGERTON, Associate Justice.

Appellants were convicted, in the Police Court, of selling magazines on the streets of the District of Columbia without taking ■out a license or paying a tax. Each was sentenced to a fine of five dollars, or one day in jail. We allowed an appeal.

Appellants stood on the sidewalk, at the corner of Park Road and 14th St. N. W., carrying bags which contained copies of Consolation and of Watch Tower, two magazines published by or for Jehovah’s Witnesses. The bags, and also placards which appellants displayed, were lettered to show that the magazines were for sale at five cents each. A policeman bought a copy of Watch Tower from one of appellants and a copy of Consolation from the other. Appellants told him they had no license and did not need one. There was no obstruction of the sidewalk and no disorder.

Appellants did not take the stand. No one testified that they considered it their religious duty to sell the magazines, or to refrain from taking out a license and paying a tax. No one testified that they were members of, or affiliated with, Jehovah’s Witnesses. The local representative of Jehovah’s Witnesses testified that the Witnesses are not engaged in business, but solely in the work of proclaiming the gospel outlined in the Bible; that no one is paid to distribute• their magazines; that magazines are given away to those who cannot pay for them; that many more are given away than are sold; and that the only purpose of the signs, “five cents per copy”, on the placards and bags, is “to show the people that they can contribute five cents if they want to.” This witness also testified that he knew appellants, that they were not “employed” by Jehovah’s Witnesses, and that it was not for the purpose of engaging in business that “these magazines are distributed by the defendants for five cents.” This testimony, liberally construed, might permit inferences that appellants were affiliated with Jehovah’s Witnesses and that they derived no profit from their sales; but it cannot be said to require either inference.

The Police Court found that appellants sold the magazines and were engaged in the business of selling them. That they sold them was proved without contradiction. It is also admitted on this appeal.¹

The license law of the District provides in § 1736 that “No person shall sell any article of merchandise, or anything whatever, excepting newspapers sold at large and not from a fixed location, upon the public streets, or from public space in the District of Columbia, without a license first having been obtained under this section. * * * ” ² A license tax of twelve dollars a year, or less for fractions of a year, and the wearing of a numbered badge, are required. For the fraction of the year which remained when appellants did the acts complained of, a license would have cost five dollars.³

The first section of the license law begins: “No person shall engage in or carry on any business, trade, profession, or calling in the District of Columbia for which a license fee or tax is imposed by the terms of this chapter without having first obtained a license so to do.”⁴ From this general prohibition, appellants imply a correlative general authorization to carry on, without a license, anything which is not a “business, trade, profession, or calling.” They then assume that this implied, and general, authorization of miscellaneous activities should prevail over the directly expressed and specific prohibition of unlicensed street selling, viz.: “No person shall sell any article * * * upon the public streets * * * without a license first having been obtained under this section” (§ 1736). Appellants thus disregard a plain precept of common sense and statutory construction; that express and specific provisions prevail over implied and general provisions which contradict them.

The license law, in its various sections, specifically requires licenses for a great variety of activities. Its first section makes general provisions regarding applications for licenses, the time of obtaining and paying for licenses, and the form, content and transfer of licenses. That section does nothing more. When Congress desired to exempt activities which did not constitute business, or the like, from the requirements of specific sections of the license law, it did so expressly and in those sections themselves. Many sections of the license law are expressly limited, by their own terms, to “business”, or “placefs] of business”, or activities conducted “for profit or gain” or “for hire.”⁵ Section 1736 is not so limited. Section 1720(c), which provides for the licensing of buildings in which entertainments are conducted “for profit or gain”, contains the further proviso “That for entertainments, concerts, or performances of any kind where the proceeds are intended for church or charitable purposes * * * no license shall be required.”⁶ Section 1736 contains no such exception. Nor is 'it, like various state license laws, limited to peddlers, hawkers, or hucksters.

The license law is primarily a police measure rather than a tax on the privilege of doing business. This appears from the nature of the activities to which it applies; from its expressed aim of providing fees “commensurate with the cost * * * of * * * inspection, supervision, or regulation” (§ 1753) ; and from the fact that other legislation, not here involved, required a license and imposed a gross-receipts tax “for the privilege of engaging in business in the District” (Tit. 20, §§ 970, 970a, 970d). The purpose of § 1736 is t'o police the streets, by providing means and funds for identifying, supervising and protecting those who sell things there. Let us assume in appellants’ favor that they neither derived nor sought a profit from their sales, that their only motive was religious, and that they were engaged in neither a “business” nor a “calling.” It does not follow that there could be no occasion to police their sales. There is no clear connection between the profitableness, or the motives, of street sales, and the need of policing them in the interest of public order. Sales for propaganda purposes sometimes need more police protection than sales for business purposes. Nothing indicates that Congress intended to require police and prosecutors to consider questions of profitableness and motive, or that it intended to discriminate against business ⁷ and in favor of propaganda. The fact that it excepted “newspapers sold at large” shows that it deliberately included other publications. “Newspapers” does not mean newspapers and magazines. It follows that appellants violated the statute.

They contend that it infringes the constitutional guarantees of freedom of the press and of religion. But a law which exacts a reasonable license fee from those who use the streets in special ways does not become invalid when the use has a religious motive. In Cox v. New Hampshire,⁸ a license tax on parades in general was upheld in its application to a religious parade. Section 1736 does not, like the law held invalid in Cantwell v. Connecticut,⁹ arbitrarily interfere with the soliciting of religious contributions; it does not touch that activity. It does not touch the giving away of publications. A tax which was aimed solely at certain publications, in order to restrict their circulation, was held invalid in Grosjean v. American Press Company, but the Supreme Court said: “It is not intended * * * to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government * * *.”¹⁰ Neither are they immune from ordinary police regulations. Men who sell magazines are no more immune than men who own newspapers, or bookstores. Section 1736 is not aimed solely, or even specially, at any or all publications, and is not intended or shown to restrict their circulation. “To require a man to pay the taxes that all other men have to pay cannot possibly be made an" instrument to attack his independence as a judge”;¹¹ and requiring sellers of religious magazines, along with all other street sellers, to pay a reasonable license fee cannot be made an instrument to attack freedom of the press or of religion.

Opportunity to convey ideas in public places may not be made to depend upon a public officer’s approval of the ideas, or upon his whim ;¹² but there is no merit in appellants’ contention that § 1736 vests in the Commissioners of the District discretion to grant or withhold licenses arbitrarily, or to make arbitrary regulations with respect to their issue.¹³ It authorizes the Commissioners to regulate only the location and conduct of licensed sellers. Unlike various other sections of the license law¹⁴ this section imposes no conditions, precedent or subsequent, to the issue of a license. Appellants allege no discrimination in the enforcement of the law.

It is true that Sections 1753 and 1754 undertake to give the Commissioners discretion to expand or contract the license law, make regulations, and revoke licenses. But we need not determine how far the sales here involved might be brought within those sections, or whether the discretion which those sections seek to give is broader than the Constitution permits. Appellants are not here because of them, or because of any exercise of discretion, or other action, under them. Appellants are convicted of violating Section 1736. If Sections 1753 and 1754 give no discretion, or a valid discretion, to the Commissioners with respect to appellants’ sales, they have no effect on these proceedings. Likewise if they attempt to give a discretion which cannot validly be given, they have no effect on these proceedings; for in that case we are expressly required to treat them as severable. Congress has directed that “If any provision of this chapter is declared unconstitutional * * * the validity of the remainder of the chapter * * * shall not be affected thereby.”¹⁵

We conclude that a reasonable license fee, applicable to street sellers generally, and not intended or shown to restrict the expression of any views, is valid in its application to sellers of religious magazines.¹⁶ We cannot say that a fee of twelve dollars a year, or five dollars for the period here involved, is unreasonable. We need not consider whether the law applies, or whether it could constitutionally apply, to casual and sporadic sales.¹⁷ Appellants’ sales were planned. One does not stand on a street-corner with a stack of magazines, a bag advertising them, and a placard offering them for sale, in order to strike a single casual bargain.

Within wide limits, democracy and the Constitution require freedom of expression and freedom of legislation. We are asked to invade the second freedom in order, it is said, to protect the first. It is not for us to say whether the license law is good for the community. It is an Act of Congress. Though it covers some sales of religious literature, it conflicts with no defensible concept of the constitutional freedom of the press or of religion. We must therefore enforce it.

Affirmed.

1 “The District of Columbia * * * proved that the appellants and each of them * * * did sell ONLY A SINGLE MAGAZINE.” Appellants’ brief; their emphasis.

The arresting officer testified: “ * * * I went up to Richie first and handed him five cents and asked for a magazine. He asked me which one I wanted and I bought this one here, called the Watch Tower. I then walked over to Busey and did the same thing. He asked which one I wanted. I took the Consolation * *

The suggestion that if the officer had been unwilling to buy the magazines, and had expressed a desire to receive them as gifts, appellants might have accommodated him, is immaterial. It comes only to this, that if appellants had found no opportunity to make sales in violation of law they would have kept within the law.

2 D.C.Code (1929), Supp. V, Tit. 20, § 1736; 47 Stat. 557. [Italics supplied.]

3 Ibid, § 1705.

4 Ibid, § 1701.

5 §§ 1702 (“buildings in which moving pictures are displayed for profit or gain”), 1708, 1718 (“persons engaged in the business of manufacturing or renovating mattresses”), 1720, 1721, 1726, 1733, 1734, 1738, 1741, 1751.

6 Cf. § 1751.

7 Cf. District of Columbia v. Monumental Tours, Inc., 74 App.D.C. 147, 122 F.2d 195.

8 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396.

9 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, 128 A.L.R. 1352.

10 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660.

11 Holmes, J., dissenting, in Evans v. Gore, 253 U.S. 245, 265, 40 S.Ct. 550, 557, 64 L.Ed. 887, 11 A.L.R. 519.

12 Hague v. C. I. O., 307 U.S. 496, 516, 59 S.Ct. 954, 83 L.Ed. 1423; Schneider v. State (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Jones v. City of Opelika, Ala.App., 3 So.2d 74, reversed, 241 Ala. 279, 3 So.2d 76, certiorari granted, 314 U.S. 593, 62 S.Ct. 93, 86 L.Ed. —, writ dismissed for want of a final judgment, 62 S.Ct. 630, 86 L.Ed. —.

13 Cf. Cox v. New Hampshire, 312 U.S. 569, 576, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396; Drake v. United States ex rel. Bates, 30 App.D.C. 312, 320.

14 §§ 1702, 1703, 1709, 1711, 1713, 1714, 1715, 1716, 1721, 1722, 1731, 1731a, 1739, 1740, 1742-1751.

15 § 1758. Severable provisions. — If any provision of this chapter is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the validity of the remainder of the chapter and the applicability of such provision to other persons and circumstances shall not be affected thereby.

16 Massachusetts v. Pascone, 308 Mass. 591, 33 N.E.2d 522, certiorari denied, 314 U.S. 641, 62 S.Ct. 82, 86 L.Ed. —; Cole v. Fort Smith, 202 Ark. 614, 151 S.W.2d 1000, certiorari granted, Bowden v. Fort Smith, 62 S.Ct 903, 86 L.Ed. —, Cf. City of Manchester v. Leiby, 1 Cir., 117 F.2d 661, certiorari denied 313 U.S. 562, 61 S.Ct. 838, 85 L.Ed. 1522; Hannan v. City of Haverhill, 1 Cir., 120 F.2d 87, certiorari denied, 314 U.S. 641, 62 S. Ct. 81, 86 L.Ed. —. Contra, State of Vermont v. Greaves, 112 Vt. 222, 22 A. 2d 497.

17 § 1758; supra, note 15.