Seevers v. City of Somerset , 295 Ky. 595 ( 1943 )

Reversing.

Appellant, Anna Seevers, a regularly ordained minister of the religious sect, Jehovah's Witnesses, was tried in the Pulaski Circuit Court on a warrant charging her with the violation of an ordinance of the City of Somerset which forbids peddling of merchandise or literature within the city without a license. She was convicted, her punishment fixed at a fine of $50, and upon her motion for an appeal she asks that the judgment be reversed on three grounds: 1. The ordinance in question does not apply to her. 2. It violates sections 1, 5 and 8 of the Kentucky Constitution, and the first and fourteenth amendments of the Federal Constitution guaranteeing freedom of religion, speech and press. 3. It violates sec. 181 of the Kentucky Constitution and the fourteenth amendment of the Federal Constitution in that it lays a tax that is discriminatory and confiscatory.

The attacked ordinance in substance provides that it shall be unlawful for any person, firm or corporation to engage in the business of an itinerant merchant or of a peddler within the city without first procuring a license at a cost of $7.50 per day, $30 per week or $100 per year. The ordinance defines an "itinerant merchant" as "any transient person who shall engage temporarily in selling or offering for sale any goods, wares or merchandise or literature * * *." It defines a "peddler" as "any person who goes from house to house, or from place to place in the City of Somerset, Ky., selling or taking orders for, or selling coupons for the procurement of, or offering to sell or take orders for goods, wares, merchandise or literature."

The evidence shows the appellant has been an ordained minister of Jehovah's Witnesses for more than twenty years and when arrested on March 11, 1942, she had with her a card so showing. She and several other members of her sect came to Somerset on January 18, 1942, as she testified, "under the command of Almighty God as set forth in. Isaiah 61-1 and 2, to preach the gospel to all mankind."

Her manner of preaching was to go from door to door in the City of Somerset and play a record on a phonograph giving certain of the views of Jehovah's Witnesses on religion. The Watch Tower Bible Tract Society published certain religious books and tracts and appellant in calling upon persons in their homes would offer them for sale. One of the religious publications was a cloth bound volume of 368 pages bearing the title "Children," which she purchased from the Watch Tower at five cents and offered for sale at twenty-five cents. A pamphlet of thirty pages entitled "End of Axis Powers," a religious tract, she bought from the same publisher for one and one-half cents and offered free with the book. If persons upon whom she called desired any of her publications and were financially unable to buy them, the publication was donated by appellant.

The facts in this record cannot be distinguished from those appearing in Murdock v. Com. of Pennsylvania, etc.,319 U.S. 105, 166, 63 S. Ct. 870, 882, 891, 87 L.Ed. ___, and the ordinance here is for all practical purposes the same as the one claimed to have been violated there. In the Murdock case the United States Supreme Court held that one distributing this same character of literature was engaged in religious and not commercial activity and the ordinance forbidding commercial peddling had no application; that if it were applicable, it ran afoul both the State and the Federal Constitutions guaranteeing freedom of religion and was unconstitutional.

We feel constrained to follow the decision of the United States Supreme Court in this matter regardless of what our independent views might be. Therefore, it is unnecessary for us to extend this opinion and we refer the reader to the Murdock case; also to Jones v. City of Opelika, 319 U.S. 103,63 S. Ct. 890, 87 L.Ed. ___ (where a rehearing was granted and the court adopted the reasoning of the Murdock opinion); Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L.Ed. ___, and Martin v. City of Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed ___, where a full discussion of the views of the various Justices of the Supreme Court on the question appear.

Having reached this conclusion, it becomes unnecessary to determine whether or not the ordinance is discriminatory or confiscatory. The motion for an appeal is sustained, and the judgment is reversed for proceedings consistent herewith.

The whole Court sitting.