People v. Bohnke

38 N.E.2d 478, 287 N.Y. 154, 1941 N.Y. LEXIS 1380

• Court: New York Court of Appeals
• Decided: December 4, 1941
• Status: Published

Opinion

Per Curiam.

Appellants were convicted of a violation of an ordinance of the village of Southampton, which ordinance makes any person guilty of disorderly conduct who, “ without the consent of the occupant of said premises previously given,” enters upon private residential property in the village for certain purposes, including “ the purpose of distributing any handbill, pamphlet, tract, notice or advertising matter.” The ordinance states that it is riot to be construed, to apply “ to any person who has been a bona fide resident of the Village of Southampton, New York, for a period of at least six (6) consecutive months last past, nor to any person who has maintained a place of business in the Village of Southampton for a period of at least six (6) consecutive months, prior thereto, or his duly authorized representative.” The ordinance contains a “ preamble ” to the effect that it was enacted pursuant to the village’s police power and in order to protect its citizens against crime and preserve the private property, peace and comfort of the occupants of private residences in the village.

On the trial it was established, without dispute, that appellants, who are ordained ministers of their religion and authorized representatives of a publishing house or publishing department of that religion, and who are not within the exceptions of the ordinance as to residence or business place in the village, did, without the previous consent of any householders, circulate religious pamphlets from door to door in the village very early in the morning of July 30, 1940. The sole defense of the appellants was and is the alleged unconstitutionally of the ordinance in that, according to appellants, it is repugnant to the Fourteenth Amendment to the United States Constitution as depriving them of their rights to freedom of religion, freedom of speech, and the equal protection of the laws, and in that it makes an invalid distinction or classification based on residence in or out of the village.

We hold the ordinance valid. It does not prohibit pamphleteering. It regulates pamphlet distribution in private, not public, places, and gives no public officer any power of censoring the pamphlets or licensing, or refusing to license, their distribution. (See Cox v. New Hampshire, 312 U. S. 569, 574; People v. Kuc, 272 N. Y. 72, 74; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112.) It does not infringe any of appellants’ rights to the free exercise of their religion since it merely regulates their entry onto private property for the purpose of promoting their religious beliefs. It does leave to the pleasure of the individual householder the determination of whether or not pamphlets may be circulated on that householder’s premises, but this infringes no right of appellants, since the Constitution does not guarantee them any right to go freely onto private property for such purposes. As to the alleged invalid discrimination in favor of residents, we hold, taking into consideration the statement of purposes contained in the ordinance’s preamble, that the distinction is valid in a small village where, presumably, the dangers and annoyances of trespasses or unsolicited visits are less when the trespassers or uninvited visitors are not strangers but known, or easily identifiable and traceable, residents of the community. (See New York ex rel. Bryant v. Zimmerman, 278 U. S. 63; Brown-Forman Co. v. Kentucky, 217 U. S. 563, 573; State Board of Tax Commissioners v. Jackson, 283 N. S. 527, 537.)

The judgments should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments affirmed.