COLEMAN, Circuit Judge:
The appeal in this case squarely raises a single issue: Is an Ordinance of the City of Jackson, Mississippi,
enacted June 25, 1940, requiring the issuance of a permit for the distribution of handbills and like objects, void on its face as in violation of the First and Fourteenth Amendments to the United States Constitution ?
On June 13, 1965, without first obtaining a permit therefor as required by the Ordinance in question, plaintiffs distributed certain leaflets in the City of Jackson. They were arrested and put in jail. Others engaged in distributing similar leaflets without a permit were arrested the following day.
A photocopy of the leaflet distributed by the plaintiffs on June 13 is exhibited in the record and appears to have been a “handmade” dodger, duplicated in some manner, reading as follows:
“M.F.D.P. protests
The Gathering on Monday
Of Miss. Law-makers . . . The
Illegally-Elected State
Legislators
MASS RALLY
To-night — Morning Star Baptist
Church, Kane St., Off Mill, 8-30 pm.
Miss. Freedom Democrat’ ”
FOR ALL PEOPLE — Party ic’ ’ ”
The City says that the purpose of requiring a permit is “to prevent the sidewalks and the streets from becoming littered and unsightly and to prevent the sewer mains and culverts from becoming clogged and unsanitary, thereby creating an unsanitary condition detrimental to the health of the community and to prevent injury to pedestrians or damage to property or drainage difficulty”.
Appellants charge that the ordinance imposes a prior restraint on communication, controls political expression and cannot be justified on city interest in clean streets. Further, that the bond requirements invalidate the ordinance.
The District Court heard the matter on complaint and answer. No testimony or other evidence was heard. The Court found that the ordinance “does not prohibit the distribution of handbills but merely regulates the distribution thereof by a permit and bond, that it was not a censorship ordinance, that it is solely designed and intended to prevent littering of the streets, etc.
A municipality can prohibit the use of its streets for the distribution of purely commercial leaflets, even though such leaflets may have a civic appeal or contain a moral platitude; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, (1943); Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The handbill or dodger distributed by these appellants was not a commercial leaflet, Jamison v. State of Texas, supra.
A municipality has the power to enact and enforce ordinances against throwing literature broadcast in the streets, Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The ordinance presently under consideration contains no such prohibition.
An ordinance prohibiting a person rightfully on a public street from handing literature to one willing to receive it cannot be sustained on the argument that the purpose is to keep the streets clean, Schneider v. State of New Jersey, supra; Jamison v. State of Texas, supra.
Municipalities may enact regulations in the interest of the public safety, health, welfare or convenience, but these regulations may not abridge individual liberty, guaranteed by the Constitution, to speak, write, print or circulate information or opinion, Schneider v. State of New Jersey, supra, Jamison v. State of Texas, supra and Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
The City of Jackson argues that the Ordinance in question does not prohibit the circulation of handbills, that it simply regulates such circulation, placing much reliance, by analogy, on Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, 30 A.L.R.2d 987 (1953).
The Supreme Court there said:
“The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction.
It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated to the contrary. It has indicated approval of reasonable nondiserimina-tory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.”
But the Court in Poulos quoted with approval what it had said in Kunze v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1950):
“[We] have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.”
In
Poulos,
the validity of the ordinance with reference to licenses to speak in public parks was sustained because
“By its construction of the ordinance the State left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech.”
There is no Mississippi State Court interpretation of the Jackson Ordinance as there was in New Hampshire.
If the Jackson ordinance is to escape unconstitutionality upon its face, it must not have left the City Council with unfettered discretion as to granting the permit in question, with corresponding power to discriminate, and with like control over speech.
The ordinance requires those desiring to distribute handbills, posters, dodgers, * * * to apply for a permit to do so,
filing with the application a copy of that which is to be distributed.
Then, the City Council shall determine what bond is to be required for clearing up of sidewalks, and streets, etc., taking into consideration size and volume, etc.
We can find nothing in the ordinance which requires the Council to issue a license. The ordinance carries no command to grant an application, neither does it prescribe the criteria or standards upon which an application is to be denied.
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COLEMAN, Circuit Judge:
The appeal in this case squarely raises a single issue: Is an Ordinance of the City of Jackson, Mississippi,
enacted June 25, 1940, requiring the issuance of a permit for the distribution of handbills and like objects, void on its face as in violation of the First and Fourteenth Amendments to the United States Constitution ?
On June 13, 1965, without first obtaining a permit therefor as required by the Ordinance in question, plaintiffs distributed certain leaflets in the City of Jackson. They were arrested and put in jail. Others engaged in distributing similar leaflets without a permit were arrested the following day.
A photocopy of the leaflet distributed by the plaintiffs on June 13 is exhibited in the record and appears to have been a “handmade” dodger, duplicated in some manner, reading as follows:
“M.F.D.P. protests
The Gathering on Monday
Of Miss. Law-makers . . . The
Illegally-Elected State
Legislators
MASS RALLY
To-night — Morning Star Baptist
Church, Kane St., Off Mill, 8-30 pm.
Miss. Freedom Democrat’ ”
FOR ALL PEOPLE — Party ic’ ’ ”
The City says that the purpose of requiring a permit is “to prevent the sidewalks and the streets from becoming littered and unsightly and to prevent the sewer mains and culverts from becoming clogged and unsanitary, thereby creating an unsanitary condition detrimental to the health of the community and to prevent injury to pedestrians or damage to property or drainage difficulty”.
Appellants charge that the ordinance imposes a prior restraint on communication, controls political expression and cannot be justified on city interest in clean streets. Further, that the bond requirements invalidate the ordinance.
The District Court heard the matter on complaint and answer. No testimony or other evidence was heard. The Court found that the ordinance “does not prohibit the distribution of handbills but merely regulates the distribution thereof by a permit and bond, that it was not a censorship ordinance, that it is solely designed and intended to prevent littering of the streets, etc.
A municipality can prohibit the use of its streets for the distribution of purely commercial leaflets, even though such leaflets may have a civic appeal or contain a moral platitude; Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, (1943); Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942). The handbill or dodger distributed by these appellants was not a commercial leaflet, Jamison v. State of Texas, supra.
A municipality has the power to enact and enforce ordinances against throwing literature broadcast in the streets, Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939). The ordinance presently under consideration contains no such prohibition.
An ordinance prohibiting a person rightfully on a public street from handing literature to one willing to receive it cannot be sustained on the argument that the purpose is to keep the streets clean, Schneider v. State of New Jersey, supra; Jamison v. State of Texas, supra.
Municipalities may enact regulations in the interest of the public safety, health, welfare or convenience, but these regulations may not abridge individual liberty, guaranteed by the Constitution, to speak, write, print or circulate information or opinion, Schneider v. State of New Jersey, supra, Jamison v. State of Texas, supra and Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
The City of Jackson argues that the Ordinance in question does not prohibit the circulation of handbills, that it simply regulates such circulation, placing much reliance, by analogy, on Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105, 30 A.L.R.2d 987 (1953).
The Supreme Court there said:
“The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction.
It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated to the contrary. It has indicated approval of reasonable nondiserimina-tory regulation by governmental authority that preserves peace, order and tranquility without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion.”
But the Court in Poulos quoted with approval what it had said in Kunze v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1950):
“[We] have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.”
In
Poulos,
the validity of the ordinance with reference to licenses to speak in public parks was sustained because
“By its construction of the ordinance the State left to the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech.”
There is no Mississippi State Court interpretation of the Jackson Ordinance as there was in New Hampshire.
If the Jackson ordinance is to escape unconstitutionality upon its face, it must not have left the City Council with unfettered discretion as to granting the permit in question, with corresponding power to discriminate, and with like control over speech.
The ordinance requires those desiring to distribute handbills, posters, dodgers, * * * to apply for a permit to do so,
filing with the application a copy of that which is to be distributed.
Then, the City Council shall determine what bond is to be required for clearing up of sidewalks, and streets, etc., taking into consideration size and volume, etc.
We can find nothing in the ordinance which requires the Council to issue a license. The ordinance carries no command to grant an application, neither does it prescribe the criteria or standards upon which an application is to be denied. It is the law of Mississippi that where a power is granted to a public board to be exercised at “its discretion”, the grant means a legal and not an arbitrary discretion, Board of Mississippi Levee Commissioners v. Kellner, 189 Miss. 232, 196 So. 779 (1940). We are compelled to the view, however, that when the ordinance is altogether silent as to when and under what circumstances the permit shall or shall not be granted, then there is no way to find out what would constitute legal discretion. Only unfettered power remains.
We are, therefore, of the opinion that this ordinance is indeed unconstitutional on its face and cannot be squared with constitutional guarantees.
This holding does not deprive the City of its authority to prohibit the use of its streets for the distribution of purely commercial leaflets. The City certainly can prohibit and punish the throwing of papers and like objects upon the streets. It cannot, under the guise of a license, to be issued at its sole discretion, prohibit one who is rightfully on the public streets from handing non-commercial handbills and like communications to those who are willing to receive them.
The Judgment of the District Court, holding the ordinance not to be invalid on its face, must be and is hereby reversed.
Plaintiffs sought injunctive relief as to further enforcement of the ordinance. From the record it appears that an injunction granted by this Court on June 30, 1965, and continued by order dated August 9, 1965, expires upon our disposition of these proceedings. As to in-junctive relief, the case is remanded to the District Court for whatever relief may subsequently be needed by way of injunction. The invalidity of this Ordinance now having been decided by this
Court, we do not apprehend that the governing authorities of the City of Jackson will make any further effort to enforce it. The City is free, of course, to enact a valid ordinance in compliance with the principles herein announced.
The Judgment of the District Court upholding the Jackson City Ordinance of June 25, 1940 is reversed, and said Ordinance is declared invalid. As to in-junctive relief, the case is remanded to the District Court for such action, if any, as may subsequently be needed.
Reversed and remanded.