# Petitioners Brief — Killam v. Floresville

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1252%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1942
- **Citation:** 317 U.S. 668

## Text

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.

15

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.

18

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.

20

* 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA34086415_1252%3A2. Public record. Not legal advice.