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Legal Cases Involving Business Licenses, Taxes, and Taxes Applied To Colporteurs And Religious Tract Peddlers
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- http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/321/573.html
- U.S. Supreme Court
- FOLLETT v. TOWN OF MCCORMICK, S.C., 321 U.S. 573 (1944)
- 321 U.S. 573
- FOLLETT
- v.
- TOWN OF McCORMICK?Create|Search, S.C.
- No. 486.
- Argued Feb. 11, 1944.
- Decided March 27, 1944.
- Decision: US Supreme Court reversed the lower courts
- Appellant was convicted of violating an ordinance of the town of McCormick?Create|Search, South Carolina which provided: '... the following license on business, occupation and professions to be paid by the person or persons carrying on or engaged in such business, occupation or professions within the corporate limits of the Town of McCormick?Create|Search, South Carolina: Agents selling books, per day $1.00, per year $15.00.' Appellant is a Jehovah's Witness and has been certified by the Watch Tower Bible & Tract Society as 'an ordained minister of Jehovah God to preach the gospel of God's kingdom under Christ Jesus.' He is a resident of McCormick?Create|Search, South Carolina, where he went from house to house distributing certain books. He obtained his living from the money received; he had no other source of income. He claimed that he merely offered the books for a 'contribution'. But there was evidence that he 'offered to and did sell the books'. Admittedly he had no license from the town and refused to obtain one. He moved for a directed verdict of not guilty at the close of the evidence, claiming that the ordinance restricted freedom of worship in violation of the First Amendment which the Fourteenth Amendment makes applicable to the States. The motion was overruled and appellant was found guilty by the jury in the Mayor's Court. That judgment was affirmed by the Circuit Court of General Sessions for McCormick?Create|Search County and then by the Supreme Court of South Carolina. 29 S.E.2d 539. The case is here on appeal. Judicial Code, 237( a), 28 U.S.C. 344(a), 28 U.S.C.A. 344(a).
- The ordinance in this case is in all material respects the same as the ones involved in Jones v. Opelika, 319 [321 U.S. 573, 575] U.S. 103, 63 S.Ct. 890, and Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 891, 146 A.L.R. 81.
- We held that the constitutionality of the ordinances might not be measured by the standards governing the sales of wares and merchandise by hucksters and other merchants. 'Freedom of press, freedom of speech, freedom of religion are in a preferred position.' Murdock v. Pennsylvania, supra, 319 U.S. page 115, 63 S.Ct. page 876, 146 A.L.R. 81. We emphasized that the 'inherent vice and evil' of the flat license tax is that 'it restrains in advance those constitutional liberties' and 'inevitably tends to suppress their exercise.' 319 U.S. page 114, 63 S.Ct. page 875, 146 A.L.R. 81.
- For the Supreme Court of South Carolina conceded that 'the book in question2 is a religious book'; and it concluded 'without difficulty' that 'its publication and distribution come within the words, 'exercise of religion', as they are used in the Constitution.' We must accordingly accepts as bona fide appellant's assertion that he was 'preaching the gospel' by going 'from house to house presenting the gospel of the kingdom in printed form.' Thus we have quite a different case from that of a merchant who sells books at a stand or on the road.
- We did state that an 'itinerant evangelist' did not become 'a mere book agent by selling the Bible or religious tracts to help defray his expenses or to sustain him.' 319 U.S. page 111, 63 S.Ct. page 874, 146 A.L.R. 81. Freedom of religion is not merely reserved for those with a long purse. Preachers of the more orthodox faiths are not engaged in commercial undertakings because they are dependent on their calling for a living.
- But to say that they like other citizens may be subject to general taxation does not mean that they can be required to pay a tax for the exercise of that which the First Amendment has made a high constitutional privilege.
- REVERSED
- Mr. Justice REED, concurring.
- My understanding of this Court's opinions in Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 891, 146 A.L.R. 81, and Jones v. Opelika, 319 U.S. 103 , 63 S.Ct. 890, is that distribution of religious literature in return for money when done as a method of spreading the distributor's religious beliefs is an exercise of religion within the First Amendment and therefore immune from interference by the requirement of a license. These opinions are now the law of the land.
- Mr. Justice Murphy, concurring.
- There is an obvious difference between taxing commercial property and investments undertaken for profit, whatever use is made of the income, and laying a tax directly on an activity that is essentially religious in purpose and character or on an exercise of the privilege of free speech and free publication.
- It is wise to remember that the taxing and licensing power is a dangerous and potent weapon which, in the hands of unscrupulous or bigoted men, could be used to suppress freedoms and destroy religion unless it is kept within appropriate bounds.
- Footnotes:
- The court also distinguished State v. Meredith, 197 S.C. 351, 15 S. E.2d 678, where a license tax statute was construed to be inapplicable to an itinerant minister of Jehovah's Witnesses, the 'sale' of literature being 'merely collateral to the main purpose in which he was engaged, which was to preach and teach the tenets of his religion.' Page 355 of 197 S.C., page 679 of 15 S.E.2d.
- Though appellant distributed more than one tract or book, the only one before the Supreme Court of South Carolina was entitled 'Children'. As stated by that court, 'Tested by the tenets of other forms of the Christian religion with which we are familiar, it is full of heresies. But it purports to offer a plan of salvation of the human soul in life after death ....'
- Clark v. City of Titusville, 184 U.S. 329 , 22 S.Ct. 382; South-western Oil Co. v. Texas, 217 U.S. 114, 121 , 30 S.Ct. 496, 498; Bradley v. City of Richmond, 227 U.S. 477 , 33 S.Ct. 318.
- 'Congress shall make no law ... prohibiting the free exercise (of religion); or abridging the freedom of speech, or of the press; ....'
Other references:
- The tax in ... considered in Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444, ... had the unmistakable purpose of hitting at one out of many occupations and hitting so hard as to discourage or suppress the pursuit of that calling.
U.S. Supreme Court
JONES v. CITY OF OPELIKA, 319 U.S. 105 (1943)
319 U.S. 105
MURDOCK
v.
COMMONWEALTH OF PENNSYLVANIA and seven other cases.
Nos. 480-487.
Argued March 10, 11, 1943.
Decided May 3, 1943
- Petitioners are 'Jehovah's Witnesses'. They went about from door to door in the City of Jeannette distributing literature and soliciting people to 'purchase' certain religious books and pamphlets, all published by the [319 U.S. 105, 107] Watch Tower Bible & Tract Society. 1 The 'price' of the books was twenty- five cents each, the 'price' of the pamphlets five cents each. 2 In connection with these activities petitioners used a phonograph3 on which they played a record expounding certain of their views on religion. None of them obtained a license under the ordinance. Before they were arrested each had made 'sales' of books. There was evidence that it was their practice in making these solicitations to request a 'contribution' of twenty-five cents each for the books and five cents each for the pamphlets but to accept lesser sums or even to donate the volumes in case an interested person was without funds. In the present case some donations of pamphlets were made when books were purchased.
- Petitioners spread their interpretations of the Bible and their religious beliefs largely through the hand distribution of literature by full or part time workers. 4 They claim to follow the example of Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, 'Go ye into all the world, and preach the gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God.
- The hand distribution of religious tracts is an age-old form of missionary evangelism-as old as the history of printing presses. 5 It has been a potent force in various religious movements down through the years.
- 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.
- There is presented for decision no question whatsoever concerning punishment for any alleged unlawful acts during the solicitation. Nor is there involved here any question as to the validity of a registration system for colporteurs and other solicitors. The cases present a single issue-the constitutionality of an ordinance which as construed and applied requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities.
- 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.
- It is a distortion of the facts of record to describe their activities as the occupation of selling books and pamphlets.
- It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges.
- The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44 , 45 S., 54 S.Ct. 599, 601, and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation.
- It is a license tax-a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce ( McGoldrick?Create|Search v. Berwind-White Co., 309 U.S. 33 , 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876)
- The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down. Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666; Schneider v. State, supra; Cantwell v. Connecticut, 310 U.S. 296, 306 , 60 S.Ct. 900, 904, 128 A.L.R. 1352; Largent v. Texas, 318 U.S. 418 , 63 S.Ct. 667, 87 L.Ed. --; Jamison v. Texas, supra.
- It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax. As stated by the Supreme Court of Illinois in a case involving this same sect and an ordinance similar to the present one, a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.' 9 Blue Island v. Kozul, 379 Ill. 511, 519, 41 N.E.2d 515, 519.
- On their face they are a restriction of the free exercise of those freedoms which are protected by the First Amendment.
- Itinerant evangelists moving throughout a state or from state to state would feel immediately the cumulative effect of such ordinances as they become fashionable. The way of the religious dissenter has long been hard. But if the formula of this type of ordinance is approved, a new device for the suppression of religious minorities will have been found. This method of disseminating religious beliefs can be crushed and closed out by the sheer weight of the toll or tribute which is exacted town by town, village by village. The spread of religious ideas through personal visitations by the literature ministry of numerous religious groups would be stopped.
- This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the federal constitution.
- Jehovah's Witnesses are not 'above the law'. But the present ordinance is not directed to the problems with which the police power of the state is free to deal. It does not cover, and petitioners are not charged with, breaches of the peace. They are pursuing their solicitations peacefully and quietly. Petitioners, moreover, are not charged with or prosecuted for the use of language which is obscene, abusive, or which incites retaliation. Cf. Chaplinsky v. New Hampshire, supra.
- The judgment in Jones v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature. The judgments are reversed and the causes are remanded to the Pennsylvania Superior Court for proceedings not inconsistent with this opinion.
- REVERSED.
U.S. Supreme Court
JONES v. CITY OF OPELIKA, 316 U.S. 584 (1942)
316 U.S. 584
JONES
v.
CITY OF OPELIKA.
BOWDEN et al.
v.
CITY OF FORT SMITH, ARK.
JOBIN
v.
STATE OF ARIZONA.
Nos. 280, 314, and 966.
Argued Feb. 5, April 30, 1942.
Decided June 8, 1942.
- By writ of certiorari in Nos. 280 and 314 and by appeal in No. 966 we have before us the question of the constitu- [316 U.S. 584, 586] tionality of various city ordinances imposing the license taxes upon the sale of printed matter for nonpayment of which the appellant, Jobin, and the petitioners, Jones, Bowden and Sanders, all members of the organization known as Jehovah's Witnesses, were convicted.
- The City of Opelika, Alabama, filed a complaint in the Circuit Court of Lee County charging petitioner Jones with violation of its licensing ordinance by selling books without a license, by operating as a Book Agent without a license, and by operating as a transient agent, dealer or distributor of books without a license.
- Petitioners Bowden and Sanders were arrested by police officers of Fort Smith, Arkansas, brought before the Municipal Court on charges of violation of City Ordinance No. 1172, and convicted. They appealed to the Sebastian Circuit Court, and there moved to dismiss on the ground that the ordinance was an unconstitutional restriction of freedom of religion and of the press, contrary to the Fourteenth Amendment.
- The City of Casa Grande, Arizona, by ordinance made it a misdemeanor for any person to carry on any occupation or business specified without first procuring a license. 7 [316 U.S. 584, 590] Transient merchants, peddlers and street vendors were listed as subject to a quarterly license fee of $25.00, payable in advance.
- We turn to the constitutional problem squarely presented by these ordinances. There are ethical principles of greater value to mankind than the guarantees of the Constitution, personal liberties which are beyond the power of government to impair. These principles and liberties belong to the mental and spiritual realm where the judgments and decrees of mundane courts are ineffective to direct the course of man. The rights of which our Constitution speaks have a more earthy quality. They are not absolutes to be exercised independently of other cherished privileges, protected by the same organic instrument.
- When proponents of religious or social theories use the ordinary cmmercial methods of sales of articles to raise propaganda funds, it is a natural and proper exercise of the power of the state to charge reasonable fees for the privilege of canvassing. Careful as we may and should be to protect the freedoms safeguarded by the Bill of Rights, it is difficult to see in such enactments a shadow of prohibition of the exercise of religion or of abridgement of the freedom of speech or the press. It is prohibition and unjustifiable abridgement which is interdicted, not taxation. Nor do we believe it can be fairly said that because such proper charges may be expanded into unjustifiable abridgements they are therefore invalid on their face. The freedoms claimed by those seeking relief here are guaranteed against abridgement by the Fourteenth Amendment. Its commands protect their rights. The legislative power of municipalities must yield when [316 U.S. 584, 598] abridgement is shown. Compare Grosjean v. American Press Co., 297 U.S. 233 , 56 S.Ct. 444, with Giragi v. Moore, 301 U.S. 670 , 57 S.Ct. 946.
- In Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct. 666, we held invalid a statute which placed the grant of a license within the discretion of the licensing authority. By this discretion, the right to obtain a license was made an empty right. Therefore the formality of going through an application was naturally not deemed a prerequisite to insistence on a constitutional right. Here we have a very different situation. A license is required that may properly be required. The fact that such a license, if it were granted, may subse- [316 U.S. 584, 600] quently be revoked does not necessarily destroy the licensing ordinance. The hazard of such revocation is much too contingent for us now to declare the licensing provisions to be invalid. Lovell v. Griffin has, in effect, held that discretionary control in the general area of free speech is unconstitutional. Therefore, the hazard that the license properly granted would be improperly revoked is far too slight to justify declaring the valid part of the ordinance, which is alone now at issue, also unconstitutional.
- The judgments in Nos. 280, 314 and 966 are affirmed.
- http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=374&invol=398
- U.S. Supreme Court
- SHERBERT v. VERNER, 374 U.S. 398 (1963)
- 374 U.S. 398
- SHERBERT v. VERNER ET AL., MEMBERS OF SOUTH CAROLINA EMPLOYMENT
- SECURITY COMMISSION, ET AL.
- APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA. No. 526.
- Argued April 24, 1963.
- Decided June 17, 1963.
- The judgment of the South Carolina Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
- Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16 .
- See also
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Legal Cases Involving Business Licenses, Taxes, And Taxes Applied To Colporteurs And Religious Tract Peddlers