Opinion
No. 24576.
February 15, 1950.
Ordinance — Sale — Religious Literature.
An ordinance of a city which prohibits the sale and distribution of religious literature on the streets and sidewalks is in violation of the Constitution of the United States.
Ordinance (violation). Appeal from county court of Baylor County.
Hon. Charles F. Richmond, Judge Presiding.
Reversed — Prosecution Ordered Dismissed.
Tom S. Williams, San Antonio, and Hayden C. Covington, Brooklyn, New York, for appellant. George P. Blackburn, State's Attorney, Austin, for the state.
The prosecution was under an ordinance of the city of Seymour which forbids the sale of goods, wares and merchandise on the streets or sidewalks of the city. A fine of $150.00 was assessed by the county court on appeal.
The appellant testified that he was a preacher in a sect or organization denominated Jehovah's Witnesses; that he was distributing literature which, he said, contained sermons teaching the doctrine of his organization. These he offered for sale, but stated that he gave away a great many copies and that they did not collect as much as the literature cost.
A discussion of the question raised cannot, at this time, be of importance. The subject has been before the Supreme Court of the United States in so many different ways that every conceivable phase appears to have been considered and, so far as our investigation discloses, these cases are reversed by the highest court having power to pass on the constitutionality of the ordinances and laws under which prosecutions are had. See Marsh v. Alabama, 326 U.S. 501, 90 L.Ed. 265; Jamison v. Texas, 63 Sup.Ct. 669, 318 U.S. 413, 87 L.Ed. 869; Cantwell v. Connecticut, 310 U.S. 296, 84 L.Ed. 1213; and numerous other cases in recent years, none of which expressed a contrary opinion.
In view of the foregoing authorities, we are constrained to hold that the ordinance, if construed to prohibit the acts alleged and proven in the instant case, would be in violation of the Constitution of the United States. Accordingly, the judgment of the trial court is reversed and the prosecution ordered dismissed.