Petitioners Brief — Killam v. Floresville

14

SUPPORTING BRIEF

Specification of Errors

The petitioner assigns the following errors in the record

and proceedings of said cause:

The Court of Criminal Appeals of Texas committed

fundamental error in affirming the judgment of the trial

court because

1) The ordinance in question is unconstitutional and

void on its face because it prohibits and makes illegal that

which is inherently lawful, to wit, the business of peddling

and selling within the city, in excess of the police power

and thereby discriminating against that type of business,

contrary to the due process and equal protection clauses

of the Fourteenth Amendment to the United States Consti-

tution.

2) The ordinance in question, as its terms are construed

by the Texas Courts so as to include distribution of

literature in preaching the Gospel, is unconstitutional and

void on its face and as so construed and applied, because

it expressly prohibits absolutely the exercise of the rights

of freedom of the press and freedom to worship Almighty

God, contrary to the First and Fourteenth Amendments to

the United States Constitution.

3) Article 53 of the Code of Criminal Procedure of

Texas, 1925, as construed and applied by the Court of

Criminal Appeals of Texas, unduly denies petitioner of

his right to the inalienable and inherent writ of habeas

corpus, in violation of the due process and equal protection

clauses of the Fourteenth Amendment to the United States

Constitution.

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ARGUMENT

The points presented under the above specifications are

related and will be argued together.

It is to be noticed that this ordinance prohibits absolutely

and makes unlawful peddling any kind of merchandise on

the public square or on any street within the corporate

limits of the city of Floresville. (R ) This prohibition

is unconstitutional, even when applied to peddling of

ordinary articles of merchandise. See case of Jay Burns

Baking Co. v. Bryan, 264 U. S. 504, and other cases cited,

pages 18-19, infra, this brief.

The Texas courts have construed this ordinance so as

to include the distribution of literature containing informa-

tion and opinion. As so construed it expressly makes

unlawful and thereby prohibits the distribution of literature

containing information and opinion within the corporate

limits of Floresville. This ordinance, therefore, as so

construed, on its face is unconstitutional and violative of

the First and Fourteenth Amendments to the United States

Constitution and is identical with the ordinances knocked

down by this Court in Numbers 13, 18 and 29, October

Term 1939, in the case of Schneider v. State, 308 U.S. 147.

The questions presented on this application concern the

invalidity of this law expressly, directly and properly

presented to the Court of Criminal Appeals in the time

and in the manner acceptable to the procedure of Texas.°

Furthermore the constitutionality of this ordinance was

adequately and sufficiently presented to the County Court

and to the Court of Criminal Appeals in the application

for writ of habeas corpus. (R. 4, 10-12, 15,16) See People

of New York ex rel. Bryant v. Zimmerman, 278 U. S.

63, 66-69, 71.

® City of Amarillo v. Tutor, 267 S. W. 697, 199 S. W. 352; Hoffman

v. State, 20 S. W. 2d 1057; Burnes v. State, 75 Tex. Cr. Rep. 188, 170

8. W. ov Gohlman, ete. v. Whittle, 273 8. W. 808. Texas Jur., Vol. 9,

page 269,

16

Attention is called to the fact that under the procedure

of Texas it is unnecessary to attack by express allegations

the validity of a law in the application for habeas corpus.

(See cases footnote 2, supra.) The allegation that one is

illegally restrained of his liberty is sufficient to raise any

constitutional question, because the constitutionality of a

law is a fundamental question that can be raised at any

time, without allegation of unconstitutionality in petition,

oftentimes is considered by the Court of Criminal Appeals

even when raised for the first time before that Court.’

The Court of Criminal Appeals holds that the general

allegation of “illegally restrained of liberty” contained in

application for writ of habeas corpus authorizes a pro-

ceeding inquiring into any ground that would show the

restraint to be illegal or the judgment under which the

petitioner is held to be void.’ Furthermore, a constitutional

question is considered properly raised when presented at

any time, even as late as the motion for rehearing. See

cases cited, footnote 6, p. 15, supra.

This matter has been fully discussed in the petition for

writ of certiorari filed in Hilley v. Spivey (companion case

filed with this Court), and discussion contained in such

petition will not be repeated here but is referred to and

made a part hereof as though copied at length herein.

The Court is requested to read and consider the same in

connection with this question. See pages 11-16, 23-33, Hilley

petition for writ of certiorari.

The holding of the Court of Criminal Appeals in deny-

ing the right to review petitioner’s appeal concerning the

application for writ of habeas corpus is fictitious and color-

less and without foundation and conflicts with the prior

decisions of that court in Ex parte Faulkner, 158 S. W.

7See footnote 2, p. 5, supra.

8 See footnote 2, page 5, supra; and Ex parte Calhoun, 91 S. W.

2a 1047; McCormick v. Sheppard, 86 §. W. 2d 213; Ex parte Cox, 8

Tex. C. R. 240, 101 S. W. 369; Ex parte Mato, 19 T. C. R. 112; Ex parte

Cain, 56 Tex. C. R. 538, 120 S. W. 999; Ex parte Walsh, 59 Tex. ©. R.

409, 129 S. W. 118.

17

9d 525; Ex parte J. D. Carter (one of Jehovah’s witnesses

in one of the companion cases argued with this case when

this matter was submitted to the Court of Criminal

Appeals), 156 S. W. 2d 986.°

In this, as well as companion cases of Ex parte Largent

and Ex parte Hilley in the Court of Criminal Appeals (also

brought to this Court as companion cases on petitions for

writs of certiorari) it is significant that the Court of

Criminal Appeals did not dismiss the appeal for want of

jurisdiction, as it would have done under the prevailing

practice, had that court seriously believed that it did not

have jurisdiction. If an appellate court does not have

jurisdiction, as contended by the Court of Criminal Appeals,

it would be obligated to sustain the motion to dismiss the

appeal made by the State’s Attorney in these cases. On the

contrary, that court ignored the motion to dismiss made

by the State’s Attorney and affirmed the judgments of the

trial courts in the three cases, remanding the petitioners

to custody, thereby showing that the Court of Criminal

Appeals considered the cases on the merits and that the

so-called non-federal question is absolutely colorless and

fictitious. The trial courts decided the cases on the merits

and held the ordinances constitutional and found petitioners

had not been denied their constitutional rights. The Court

of Criminal Appeals affirmed the holding of the trial courts,

thereby it cannot be said that the disposition made of these

three cases is based on an adequate non-federal question.

The Court of Criminal Appeals admittedly holds that

it has the power to review the order appealed from if the

ordinance is unconstitutional on its face. This necessarily

intermingles the so-called non-federal question with the

federal question so as to require consideration by this

Court. Regardless of how the ordinance was construed by

® See also Ex parte Roquemore, 131 8. W. 1101, Ex parte Patterson,

42 Tex. C. R. 256, 58 S. W. 1011; Ea parte Lewis, 45 Tex. C. R. 1,

73 S. W. 811; Ea parte Lewis, 147 8. W. 2d 478; Ex parte Baker,

78 S. W. 2d 610; Ex parte Spelce, 119 §. W. 2d 1033, 1037; Ex parte

Slawson, 141 8. W. 2d 609, 610, and Ex parte Jones, 81 8S, W. 2d 706.

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the court below, it is nevertheless unconstitutional on its

face and by its express terms, because it prohibits the

innocent and legal business of peddling or selling from

house to house or upon the streets. The holding here

conflicts with Ex parte Faulkner, 158 S. W. 2d 525. This

type of law is beyond the police power. This ordinance

does not attempt to regulate the business of peddling or

selling from house to house, but is an outright prohibition

thereof, and such is therefore illegal and unconstitutional

and in direct violation of the due process and equal

protection clauses of the Fourteenth Amendment.

In Jay Burns Baking Co. v. Bryan, 264 U. S. 504, this

Court held invalid a Nebraska statute which involved an

unreasonable restriction through the bread weight law, and

said:

“A state may not, under the guise of protecting the

public, arbitrarily interfere with private business or

prohibit lawful occupations or impose unreasonable

and unnecessary restrictions upon them.”

Peddling and selling from house to house can never

be held as a public nuisance and therefore cannot be pro-

hibited as a crime. 3 McQuillen on Municipal Corporations,

2d ed., p. 122.° Ex parte Faulkner, supra.

10 See also Ex parte Baker, supra; Ex parte Patterson, supra;

Orangeburg v. Farmer, 181 S. C. 143, 186 S. E. 785; Prior v. White,

180 " 347, 116 A. L. R. 1176; Ex parte Harris, 97 Tex. C. R. 399,

261 S. W. 1050; Real Silk Hosiery Mills v. Richmond (Calif.), 298 F. 126;

Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417; White

v. Town of Culpeper, 172 Va. 630, 1 S. E. 2d 269; Jewel Tea Co. v.

City of Geneva (Nebr.), 291 N. W. 644; De Berry (one of Jehovah's

witnesses) v. City of LaGrange (Ga.), 8 S. E. 2d 147; Ex parte Maynard,

275 §. W. 1071; City of Columbia v. Alexander, 119 S. E. 241, 32

A. L. R. 746; City of McAlester v. Grand Union Tea Co., 98 P. 2d 924;

Commonwealth of Pennsylvania v. Myers (one of Jehovah’s witnesses),

Opinion by Centre County Court of Quarter Sessions, Jan. 24, 1940;

Chisholm v. Shook (one of Jehovah’s witnesses), — by Minnesota

lith Judicial Dist. Court, St. Louis County, Jan. 27, 1940; New Jersey

Good Humor, Inc. v. Board of Comm. 11 A. 2d 113, 114; George v.

City of San Francisco, 235 F. 757, 779; Humes v. City of Little

138 F. 929; Yates v. Milwaukee, 10 Wall. 497; Yee Gee v. City and

Co. of San Francisco, 235 F. 757; Shreveport v. Teague, 8 S. 2d 640,

19

Because the matter is exactly in point, we here call atten-

tion to the case of Ex parte Walrod, 120 P. 2d 783, an orig-

inal habeas corpus action—decided by the Criminal Court of

Appeals of Oklahoma Dec. 23, 1941, where that court had

before it for review the case of one of Jehovah’s witnesses

who had been unlawfully imprisoned and restrained of his

liberty in the city jail of Stillwater, Oklahoma, for the al-

leged violation of Ordinance No. 611 of that city, holding

unlawful the distribution of literature “on the streets and

sidewalks of the congested business district of the City of

Stillwater, Oklahoma, and said congested business district

is defined as being the territory included from Fifth avenue

to Eleventh avenue and between Hudson Street and Lewis

Street.” There the Criminal Court of Appeals, in discharg-

ing petitioner, held the ordinance to be unconstitutional and

void under the First and Fourteenth Amendments to the

Constitution of the United States because such ordinance

denied the rights of freedom of the press, speech and wor-

ship, being a prohibition of and direct burden on such rights.

See also Ex parte Winnett et al., 121 P. 2d 312, also an

original habeas corpus action decided by the Criminal Court

of Appeals of Oklahoma on January 7, 1942, where four of

Jehovah’s witnesses were restrained of their liberty in the

city jail of Shawnee, Oklahoma, for the alleged violation of

an ordinance of that city prohibiting the distribution of

literature of any kind at any time on the streets of the city

of Shawnee. Here the Criminal Court of Appeals likewise

rightly found such ordinance unconstitutional and void, be-

ing an outright denial of freedom of speech, press and wor-

ship guaranteed by the Constitution of the United States

and discharged petitioners.

This type of ordinance is admittedly in excess of the

police power expressly and is condemned in Schneider v.

State, supra. Even the majority opinion in Jones v. City

of Opelika, Nos. 280, 314 and 966, October Term 1941,

62 S. Ct. 1231, written by Mr. Justice Reed, states that

this sort of law is invalid: “Ordinances absolutely prohibit-

eT

ing the exercise of this right to disseminate information

are, a fortiori, invalid.” See also Hague v. C.I.0., 370 | |

U. S. 496, 501, 518. |

What is here done by the Court of Criminal Appeals

and the County Court of Wilson County in construing the

terms of this ordinance to be valid and to include the

distribution of literature containing information and

opinion has for its basis the same reasoning that was

employed by this Court in the majority opinion in Jones

vy. City of Opelika, supra. The courts below in this case

hold that one who “sells” literature can be dubbed and

falsely labeled as a “peddler” or “salesman” of “merchan-

dise” and thereby be denied his constitutional rights. The

courts below admit that an ordinance is invalid on its

face when expressly prohibiting the distribution of litera-

ture but when an ordinance prohibiting peddling is wrongly

construed and applied to one engaged in distributing

literature it is valid.* This is a distinction, without a

difference. The ordinance here on its face and as its terms

are construed by the courts below expressly prohibits

absolutely the exercise of fundamental personal rights

within the jurisdiction of the city of Floresville.

If the Court finds that this ordinance is unconstitutional

on its face and as its terms have been construed, then, a

fortiori, according to the admission of the Court of Criminal

Appeals, that Court should have considered the application

for writ of habeas corpus.

If the holding of the Court of Criminal Appeals be

sustained, then an increased burden of appeals to this

Court is necessary in cases involving Jehovah’s witnesses

from the 254 counties of Texas, because of the action of

the Court of Criminal Appeals in attempting to escape and

avoid its responsibility under the Constitutions of Texas

and the United States, to protect rights secured by the

United States Constitution to its citizens in Texas.

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* The non-federal question involved in these three cases is best

discussed in the Hilley case,

21

The ordinance is clearly invalid on its face, and for

this reason the judgment of the Court of Criminal Appeals

should be reversed.

If the argument presented herein (together with that

presented in the companion cases of Hilley v. Spivey and

Largent v. Reeves) is given thoughtful consideration by

the Court, the conclusion will be inescapable that this

Court has jurisdiction and that the petition for certiorari

should be granted and the judgment and decision of the

Court of Criminal Appeals should be set aside and held

for nought.

It is submitted that this case is one calling for the

exercise by this Court of its supervisory powers under

240 (a) of the Judicial Code, 28 U. 8. C. A. 347 (a) and

Rule 38, par. 5, of this Court. To that end this petition

for writ of certiorari should be granted so as to correct

the errors complained of committed by, and the judgments

rendered by, the Court of Criminal Appeals and the trial

courts, against petitioner.

Respectfully submitted,

HAYDEN C. COVINGTON

117 Adams Street

Brooklyn, New York

Attorney for Petitioner