Opposition Brief — Bevins v. Prindable

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SUPREME COURT OF THE UNITED) StAfts-*4e cto

ete: J

OCTOBER TERM, 1941

No. 567

CECIL BEVINS, AUSTIN R. SIMCOX, NANCY M.

SIMCOX, ET AL..,

“: Appellants,

“DOC”? PRINDABLE, LOUIS P. ZERWECK, GEORGE

REMNSNIDER, ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF ILLINOIS.

STATEMENT OPPOSING JURISDICTION AND

MOTIONS TO DISMISS OR AFFIRM.

/ Georce F. Barrett,

Attorney General of the State of Illinois,

Harry J. FLanpers,

Assistant State’: Attorney for

Saline County, Illinois,

Gerore F. Keine,

Assistant State’s Attorney for

St. Clair County, Illinois,

Counsel for Appellees.

INDEX.

Suspsect Inpex.

age

Statement opposing jurisdiction .................. 1

I ee ss ooo os ncen bar avn 2

The statute in controversy ................ unt 3

RE PE occ civ en acvcessccccertevs 4

There is no substantial constitutional question

involved in this controversy ................ 15

Discussion of cases cited by appellants in their

jurisdictional statement ................... 31

Motion to dismiss as to appellees Dwight H. Green

EE eee 47

Motion to dismiss or affirm....................... 49

Tasie or Cases Crrep.

Beal v. Missouri Pac. R. Co., 312 U. 8. 45, 61 Sup. Ct.

Oe Pen snniccvcarekteecca shee ebet bia cisans: 17, 29

Beeler v. Smith, — Fed. Supp. — (June 4, 1941).... 43

Bird v. Commonwealth, 124 Va. 833, 98 S. W. 632... . 27

Block v. City of Chicago, 239 Ill. 251 .............. 18, 20

Cantwell v. Connecticut, 310 U. 8. 296........ 23, 36, 40, 41

Chicago Great Western R. Co. v. Kendall, 266 U. 8.

REPEC TSE Se oe pee ga ne 29

City of Louisiana v. Bottoms, 300 S. W. 316........ a4

Coleman v. City of Griffin, 189 S. E. 427............ 24

Dealk v. Commonwealth, 166 Ky. 39, 178 S. W. 129. .. 25

Dearborn Pub. Co. v. Fitzgerald, 271 Fed. 479....... 34

Dire v. State, 99 Ga. 20, 25 S. E.609................ 27

Erie Railroad Co. v. Hiet,274U.S.99......... Or 18, 22

Fenner v. Boykin, 271 U. S. 240................... 17, 27

Fiske v. Kansas, 274 U. 8. 300.................... 41

Fox Film Corp. v. Collins, 236 Ill. App. 281........ 18

Georgia, etc., Power Co. v. Railroad Commission, 262.

iy Ma road Ch Ride dons Dawe kbs awed dawena ke 29

SD Fi ire Be Dig BON We CD FO vo ic vvcrcdicsinces 31

—6032

ii INDEX

Page

Herndon v. Lowry, 301 U. S. 242.......... 66 eees 35

Johnson v. Wells Fargo, 239 U. 8S. 234............. 34

Kennedy v. City of Moscow (Idaho), 39 Fed. Supp.

a le Lee sep eeineubeteetiv ees 42

Knights of Pythias v. Meyer, 265 U.S. 30.......... 18, 21

Lanzetta v. State, 306 U.S. 451 .... 0... ees 35

Lovell v. City of Griffin, 303 U. 8. 444.......-..-555 41

McMasters v. State, 207 Pac. 566.............-.5:: 24

Nashville, C. é St. L. Ry. Co. v. McConnell, 82 F. (2d)

YD RET RS ET DOE aN ee ee

Near v. Minnesota, 283 U.S. 697 ....... 6.500250 00>

Oney v. Oklahoma City, — F. (2d) (June 9, 1941)....

People v. Downer, 6 N. Y. 8. (2d) 566............-;

People v. Edmonston, 4 N. Y. 8. (2d) 257...........

People v. Spielman, 318 Ill. 482.........-.-. 0-005: 18,

Pierce v. Society of Sisters, 268 U.S.510.......... 32,

Railroad Commission of Texas v. Pullman Co., 312

U. 8S. —, —, 61 Sup. Ct. 643...........-..-. 00. 17,

Risty v. Chicago, R. I. é P. Ry. Co., 270 U.S. $76....

Schneider v. State, 308 U.S. 147.............------

Smyth v. Ames, 169 U.S. 466........----. 0 eee

South Holland v. Stein, 373 Ill. 472...........-----

Spielman Motor Sales Co. v. Dodge, 295 U.S. 89.... 17,

Stratton v. St. L.é S. W. Ry. Co., 284 U.S. 530......

Stromberg v. California, 283 U.S. 359............--

Swift & Co. v. United States, 276 U. 3 | re

Terrace v. Tyompson, 263 U. 8. 197........-..-.---

Thornhill v. Alabama, 310 U.S. 88............----:

United States v. Cohne Grocery Co., 255 U. S. 81....

Watch Tower Bible & Tract Society v. Bristol, 24

Vod. Gapp. 87... 22... 2c cc cece creer e teen eee 17, 18,

Watson v. Buck, 61 Sup. Ct. 962..............--- 17, 27,

Western Turf Ass’n v. Greenberg, 204 U. 8. 359...

Whitney v. California, 274 U. 8. 357 ......-.-. +--+:

Young, Ex parte, 209 U. 8.123 ......-.--.-- eee ee:

£88 KSBESSe

SeessS KESBRSENES

Statutes CirTep.

Constitution of the State of Illinois (1870), Article

1 ee rr ee eee

Judicial Code, Section 266 (28 U. 8. C. 380)....... . 3,7,9

INDEX iii

Page

Illinois Revised Statutes (1939), Chapter 38, par.

See Pema Oak ee epg nine tals 3, 8, 13, 18

Smith-Hurd Annotated Illinois Statutes, Chapter 38,

SEMIS do yk Vk ee Oa oda Othe been vied coco 20

Text Books Crrep.

PN Hols Va vs a teth ec ee. 26

eae see os sus vee ee week b bends 27

PO SE 26

a a ag ok at 27

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1941

No. 567

CECIL BEVINS, ET AL.,

os Appellants,

*‘DOC’”’ PRINDABLE, ET AL,

Appellees.

APPEAL FROM UNITED STATES DISTRICT COURT, EASTERN DISTRICT

OF ILLINOIS.

STATEMENT OF GROUNDS MAKING AGAINST THE

JURISDICTION OF THIS COURT, INCLUDING

THEREIN, MOTIONS TO DISMISS AS TO CERTAIN

APPELLEES, AND MOTIONS TO DISMISS OR

AFFIRM AS TO ALL APPELLEES.

Pursuant to Rule 12, Paragraph 3, of the Supreme Court,

now comes Dwight H. Green, Governor of the State of Illi-

nois, and George F. Barrett, Attorney General of the State

of Illinois, by and through George F. Barrett, their attor-

ney in this behalf; and further come Harry J. Flanders,

Assistant State’s Attorney for Saline County, Illinois, at-

torney for Tom Gran, individually, and as Sheriff of Saline

County, Illinois, Jack C. Edwards, individually, and as

deputy sheriff of Saline County, Illinois, Trafton Dennis,

individually, and as State’s Attorney of Saline County,

Illinois, and Luke Barnhill, individually, and as Justice of

the Peace of Saline County, Illinois; and further comes

Georg F. Kelling, Assistant State’s Attorney for St. Clair

County, Illinois, attorney for ‘‘Doc’’ Prindable, individu-

ally, and as sheriff of St. Clair County, Illinois, Louis P.

Zerweck, individually and as State’s Attorney of St. Clair

County, Illinois, George Remnsnider, individually, and as

Mayor of the city of Belleville, Illinois, Thomas Lonie, indi-

vidually, and as Chief of Police of the City of Belleville,

Illinois, and Anthony J. Stoeckel, individually, and as

Justice of the Peace of St. Clair County, Illinois, all ap-

pellees in the above entitled cause, and file this, their State-

ment of Grounds Making Against the Jurisdiction of this

Court, therein, motions to dismiss as to certain appellees,

and motions to dismiss or affirm as to all appellees.

For convenience of this Court, and to save useless repe-

tition, all of the appellees herein have joined in this, their

said Statement, and have set forth matters and grounds

making against the jurisdiction of the Supreme Court which

they, and each of them, believe sufficient to enable this Court

to determine that it has no jurisdiction, or that this said

appeal should be dismissed, or in the alternative that final

decree of the court below be affirmed, as per motions of the

said appellees submitted herewith.

Form of Action.

The appellants (plaintiffs in the court below), who are

members of a religious cult known as ‘‘Jehovah’s Wit-

nesses’’ sought, by the way of injunction, pursuant to the

statute of the United States, Section 266 thereof as amended

(28 U. S. C. A. 380), to restrain the appellees, who were

State and county officials of the State of Illinois (defend-

ants in the court below), from enforcing a certain Illinois

penal statute (Chapter 38, Paragraph 471, Illinois Revised

Statutes 1939) ; the said appellants contending that the said

statute was unconstitutional, void and indefinite in its terms.

Pursuant to the provisions of the above statute (28 U.S.

C. A. 380) a three judge court was assembled in the Dis-

trict Court of the United States, in the Eastern District

thereof. All of the appellees herein filed motions to dis-

miss. Affidavits and briefs of all parties were filed and a

hearing had on the motion for an interlocutory injunction.

On June 17, 1941, the District Court entered its order

denying the motion for an interlocutory injunction, made

special findings of fact, and filed its memoranda, suggesting

that as the matters to be considered by the court had been

fully presented by the pleadings, admissions and affidavits

of the parties, that if the parties so stipulated, the applica-

tion for an interlocutory injunction might be considered as

a final hearing on the merits. .

Pursuant to the suggestions of the court, a stipulation

was filed that the findings of the court with reference to

the interlocutory injunction be considered as a final hearing

and this appeal, filed August 1, 1941, followed.

The Statute in Controversy.

The statute in question (Chapter 38, Paragraph 471, Ili-

nois Revised Statutes 1939), claimed by the appellants to

be unconstitutional, null and void, indefinite and uncertain,

is as follows:

‘*Tt shall be unlawful for any person, firm or corpora-

tion to manufacture, sell, or offer for sale, advertise

or publish, present or exhibit in any public place in

this state any lithograph, moving picture, play, drama

or sketch, which publication or exhibition portrays de-

pravity, criminality, unchastity, or lack of virtue of a

class of citizens, of any race, color, creed or religion

which said publication or exhibition exposes the citi-

zens of any race, color, creed or religion to contempt,

derision, or obloquy or which is productive of breach

of the peace or riots. Any person, firm or corporation

violating any of the provisions of this section, shall be

guilty of a misdemeanor, and upon conviction thereof,

shall be punished by a fine of not less than fifty dollars

($50.00), nor more than two hundred dollars ($200.00).”’

Statement of Facts.

We believe in the statement of facts made by the appel-

lants herein that many conclusions of facts have been

therein stated not warranted by the pleadings, admissions

and evidence in the case. These appellees, therefore, be-

lieve it necessary to make a restatement of these facts. We

believe that the facts, as found by the Court below, present

a fair and impartial resume of the pleadings, admissions

and evidence adduced at the trial of this cause and as found

by the Court in its finding of facts and in its opinion. The

appellees, therefore, in restating the facts herein have

adopted, in substance, the facts as found by the Court.

The appellants, (plaintiffs in the court below) members

of an unincorporated body known, as ‘‘Jehovah’s Wit-

nesses’’, belong to a religious cult or sect, each of the said

members claiming to be an ordained minister of Jehovah

God, and holding credentials from the Watchtower Bible

and Tract Society, a New York corporation publishers for

‘* Jehovah’s Witnesses’’. Each of the appellants, as ordained

ministers, engage in preaching the gospel of God’s King-

dom from house to house and publicly in the street and

distribute literature printed by the Watchtower Bible and

Tract Society, Incorporated, a New York corporation, and

the Watchtower Bible and Tract Society, a Pennsylvania

corporation, said literature being in the form of books,

booklets, and periodicals of various titles and issues. These

publications are delivered to people in the streets or homes

canvassed, either making outright gifts of the publications

or receiving contributions from the recipients for such

publications. In disseminating their religious views and

beliefs they use portable phonographs and play records to

persons who will listen. The literature published by the

Watchtower Bible and Tract Society was distributed in St.

Clair and Saline Counties by ‘‘ Jehovah’s Witnesses’’, act-

ing as full or part time ordained ministers of the gospel.

From time to time the ‘‘Jehovah’s Witnesses’’ came from

surrounding counties in Illinois and Missouri and assembled

and worked with those in St. Clair County and in the City

of Belleville, situated in the County of St. Clair, in large

groups. As many as 500 are affected by the situation in

St. Clair County, of which complaint is made. It was their

frequent practice to assemble and work together in large

numbers in various communities. They expect trouble and

interference and have agents whose duties are to check

interference and provided means of legal counsel when

necessary. (Finding of Fact No. 18, Court below.)

The appellants interpret certain passages of the Bible

in which they claim, according to such interpretation, that

there will be a complete destruction of all religious, com-

mercial and political institutions, and a wholesale slaughter

of unchristian people, all of which will be committed by an

invisible army of the Lord at the great ‘‘ Battle of Armaged-

don’’. The literature published by the Watchtower Bible

and Tract Society, and distributed by the ‘‘ Jehovah’s Wit-

nesses’’, admittedly is an attack upon religion as practiced

today and at all times since man has been on earth. Cer-

tain of the literature attempts to set forth the true distinc-

tion between all religion and the true worship or service of

Almighty God. The literature attempts to expose the

present day religion, both Protestant and Catholic, as a

snare and a racket of the very worst kind, and the appel-

lants claim that the religion, as practiced today, is in no

way related to, or a part of, the true worship of Almighty

God. The literature distributed by the appellants de-

nounce and attack all organized religion, Catholic and Prot-

estant alike. The Catholic Church, in particular, is charged

with being wilfully and deliberately engaged in a racket

imposed upon its members by wilful deception, and is

charged with disloyalty to the United States, and with being

in league or combination with the Fascists and Nazis, and

engaged in a conspiracy to gain political control of the

world and all nations of the world. The literature further

charges that the Catholic Church has disloyal designs and

keeps arms and ammunition in their churches and build-

ings.

Illustrative of the shocking nature of the charges made

in this literature are excerpts from the same found in Para-

graph 19 in the Statement of Facts of the Court below.

There are three groups of appellees in this case.

The first group is comprised of George F. Barrett, as

Attorney General of the State of Illinois, and Dwight H.

Green, as Governor of the State of Illinois, who, according

to the said complaint, are both sued in their official capaci-

ties, (Paragraphs 13 and 14, Appellants’ complaint.) The

appellees, Dwight H. Green and George F’. Barrett, accord-

ing to the allegations contained in appellants’ complaint,

did not personally participate in any of the alleged wrongs

committed against the appellants. The appellants, (plain-

tiffs in the Court below) charge that the said appellees,

Dwight H. Green and George F. Barrett, are joined as de-

fendants only in their official capacity as Governor and

Attorney General, respectively, of the State of Illinois,

solely because the validity of a State statute was involved,

and because it is claimed by the said appellants that the

said Dwight H. Green and George F. Barrett are indis-

pensable parties defendant.

Section 266, Judicial Code, amended, 28 U.S. C. A. 380,

provides for the application for an interlocutory injunc-

tion, and it is therein provided:

“Said application shall not be heard or determined

before at least five days notice of the hearing has been

given to the Governor and the Attorney General of

the State and to such other persons as may be defend-

ants in the suit.’?

The Court below, in its opinion with reference to the

appellees Dwight H. Green and George F. Barrett, said:

‘“‘The defendants, Dwight H. Green and George F.

Barrett, Governor and Attorney General, respectively,

of the State of Illinois, urge that, since the complaint

avers that neither of them actually participated in the

alleged wrongs of which complaint is made and that

neither of them have made threats of future action

against the plaintiffs, they are not proper parties de-

fendant. Whether or not they are indispensable

parties, as contended by plaintiffs, or even necessary

parties, we are of the opinion that in view of the fact

that plaintiffs attack the constitutionality of a statute

of the State of Illinois and seek to enjoin its enforce-

ment said defendants, in their official capacities, are

proper parties. (28 U.S.C. A. 380; Arneson v. Denny,

25 F’. 2d 993.) Since these defendants are not charged

with having actually done or threatened to do any-

thing of which plaintiffs complain the term ‘defend-

ants’ when used hereafter will refer to the other de-

fendants only.’’

The second group of appellees embraces the defendants

of St. Clair County, which include ‘‘Doc’’ Prindable, the

Sheriff; Louis P. Zerweck, the State’s Attorney; George

Remnsnider, the Mayor of the City of Belleville; Thomas

Lonie, Chief of Police of the City of Belleville, and Anthony

J. Stoeckel, a Justice of the Peace of St. Clair County.

The third group of appellees embraces all Seline County,

Illinois, officials, including Tom Gram, Sheriff of Saline

County ; Jack O. Edwards, Deputy Sheriff of Saline County,

and Commander of the American Legion Post at Harris-

burg, Illinois; Luke Barnhill, Justice of the Peace of Saline

County; and Trafton Dennis, who became State’s Attorney

of Saline County on December 2, 1940, succeeding Lloyd H.

Melton.

The appellants herein sought to restrain the appellees,

(defendants in the court below) from arresting, prosecut-

ing, or threatening to arrest and prosecute any of the

‘*Jehovah’s Witnesses’? under and by virtue of a certain

statute of the State of Illinois, known as Chapter 38, Sec-

tion 471, Illinois Revised Statutes, 1939, which said statute

was as follows: (Repeated here for the convenience of the

Court.)

‘*Tt shall be unlawful for any person, firm or corpora-

tion to manufacture, sell, or offer for sale, advertise or

publish, present or exhibit in any public place in this

state any lithograph, moving picture, play, drama, or

sketch, which publication or exhibition portrays de-

pravity, criminality, unchastity, or lack of virtue of a

class of citizens, of any race, color, creed or religion

which said publication or exhibition exposes the citizens

of any race, color or creed or religion to contempt,

derision, or obloquy or which is productive of breach

of the peace or riots. Any person, firm or corporation

violating any of the provisions of this section, shall be

guilty of a misdemeanor, and upon conviction thereof,

shall be punished by a fine of not less than fifty dollars

($50.00) nor more than two hundred dollars ($200.00).’’

The appellants contend that the above described statute

is unconstitutional and void on its face, and is vague and

indefinite because it unlawfully denies and deprives the ap-

pellants and others of ‘‘Jehovah’s Witnesses’’ of civil

rights, freedom of speech, of peace, and of assembly and

freedom to worship the Almighty God according to the

dictates of their consciences or contrary to the Federal

Constitution, Fourteenth Amendment, Section 1.

All of the appellees in the Court below filed motions to

dismiss, supported by briefs and affidavits, and a three

judge court having been assembled pursuant to Section

266, Judicial Code, amended, (28 U. S. C. A. 380) after a

hearing, considered the appellants’ prayer for a prelimi-

nary injunction, seeking to restrain the appellees from en-

forcing the statute above described, or from arresting,

interfering with or prosecuting appellants, or other of

‘‘Jehovah’s Witnesses’ on acconnt of their activities in

distributing books, booklets, Periodicals and other works.

The court below, on June 17, 1941, after a consideration

of the pleadings, admissions contained therein, affidavits,

arguments and briefs of counsel for the respective parties,

denied appellants’ motion for a preliminary injunction,

and the court below further said in its memorandum:

‘The situation is fully disclosed by the pleadings,

the affidavits, and the admissions. It would seem that

the parties might stipulate that the hearing on the

application for temporary injunction be viewed as an

application for a permanent injunction.”’

Pursuant to this suggestion of the court, the parties

herein stipulated that the determination on the hearing

for a preliminary injunction should be considered as a

final hearing for a permanent injunction, and accordingly

an appeal was taken to this court.

The court below, in its findings of fact ( Paragraph 21)

found that the members of “‘Jehovah’s Witnesses’? were

distributing literature published by the Watchtower Bible

and Tract Society in St. Clair County, Illinois, in June

1940; that the Sheriff of St. Clair County and the Mayor

and Chief of Police and members of the police force of

the city of Belleville, began to receive telephone calls from

numerous persons who objected to the literature being dis-

tributed by the appellants and complained that the litera-

ture attacked all religion, holding the religion up to con-

tempt, derision and obloquy, and such persons stated that,

‘‘ynless the distribution of such literature was stopped

there would be trouble, and that such persons would be

taken off the streets in ambulances’’. The court further

found that in a neighboring city of Litchfield the ‘‘ Jehovah’s

Witnesses”’ had distributed similar literature, as the result

of which, a serious riot was incited and a mob, estimated

at one thousand persons, assembled, violent assaults and

sluggings occurred, many persons were injured, and much

property damage resulted. That in order to quell the riot

it was necessary to call out the Illinois State Police Riot

Squad. That the said county and city officials knew from

these reports that the distribution of the literature by the

‘‘Jehovah’s Witnesses’? had caused mobs and rioting in

other localities and ‘‘honestly believed that immediate

danger of riot, breach of peace, and personal injury to

said ‘Jehovah’s Witnesses’ and others’’ might occur as a

result of their distribution of literature in Belleville in

St. Clair County. The members of the police force of Belle-

ville investigated the activities of the ‘‘Jehovah’s Wit-

nesses’’ in the said city, and a number of the said ‘‘Je-

hovah’s Witnesses’’ were arrested and detained by the said

officials ‘‘with the honest belief that their activities in dis-

tributing the literature was in violation of Section 471,

Chapter 38 of the Revised Statutes of the State of Illinois’’.

That the said officials, also ‘‘ with the honest belief that riots

and disturbances of the peace were imminent, and that the

safety of persons and property in the community was seri-

ously endangered due to said activities of ‘‘Jehovah’s Wit-

nesses’’, Complaints were filed in St. Clair county, which

were, in substance and form, as follows:

‘The complaint and information of R. V. Gustiv,

Assistant State’s Attorney in said County, made be-

fore Anthony J. Stoeckel, Esquire, one of the J ustices

of the Peace in and for said County, who being duly

sworn, upon his oath says that Emma Wilson, Charles

R. Leiwe, Charles A. Davis, Ernest Summers on, towit:

the 3lst day of August 1940, at the County aforesaid

then and there unlawfully advertise, sell or offer for

sale a certain sketch which publication portrays de-

pravity, criminality, unchastity or lack of virtue of a

class of citizens belonging to the Roman Catholic re-

ligion, which said publication exposes the citizens of

said religion to contempt, derision or obloquy and which

is productive of breach of the peace or riot contrary

to the form of the statute in such case made and pro-

vided and against the peace and dignity of the same

People of the State of Illinois.

That this complainant has just and reasonable

grounds to believe, and does believe that the said Emma

Wilson, Charles R. Leiwe, Charles A. Davis, Ernest

Summers committed said offense, and therefore prays

that, (same named offenders) may be arrested and

dealt with according to law.’’

The court below further found in its Finding of Facts

(Paragraph 22) that all of those arrested were given the

privilege of making bonds, that none of those arrested were

“maltreated, assaulted or otherwise dealt harshly with in

any physical way’’. The Court further found that none

of the cases in Belleville and St. Clair County have been

tried, but all (approximately twenty-three in number) are

still pending. The court further says:

“There appears to have been no effort on the part

of anyone to secure a determination of the cases. No

reason appears which should prevent an early trial of

the cases and determination on appeal, if desired.’’

In Saline County, at the city of Harrisburg in that county,

the occurrences complained of by the appellants consisted

of arrests under facts similar in substance to those in Belle-

ville, and in St. Clair County, except that the cases at Harris-

burg were brought to trial. The court below further found

that all of the Saline County defendants played an official

part in the arrest, arraignment and trial of three ‘‘Je-

hovah’s Witnesses”, namely, Cecil Bevins, Austin R. Sim-

cox and Nancy M. Simcox. That the acts and conducts of

the said ‘‘Jehovah’s Witnesses’’, which led to their arrests

and prosecutions in Harrisburg, were similar to the acts

and conducts which led to the arrests and complaints in

Belleville. In the Saline County cases, which were brought

to trial in Harrisburg, the complaints, in substance, were

as follows:

‘Did unlawfully present and exhibit a certain sketch

and publication, which said publication portrayed lack

of virtue in the Catholic and Protestant religions, and

did then and there expose the believers in those re-

ligions to contempt and derision and which was produc-

tive of a breach of the peace and riots.”’

The appellees were found guilty and all of them appealed

to the Circuit Court of Saline County, where their said

causes are now pending on appeal.

The court further found that ‘‘nothing appears which has

prevented or should hereafter prevent an early final de-

termination of the cases in the State courts, if that is

desired.’’

The court below found that the acts of the Saline County

officials were official acts of such appellees, performed in

good faith and ‘‘in an honest effort to carry out their

official duties and to preserve the peace’. That the said

Saline County officials, in good faith, prosecuted the appel-

lants for their acts and conduct which they verily believed

constituted violations of Chapter 38, Section 471, Illinois

Revised Statutes.

The court further found (Paragraph 26) ‘‘that none of

the defendants now threaten or intend to make future ar-

rests of ‘‘Jehovah’s Witnesses’’ in St. Clair and Saline

Counties unless and until advised by State’s Attorney of

said county that the laws are being violated by such ‘Je-

hovah’s Witnesses’.’’

There is no showing in the record that there were any

arrests, trials, or convictions other than those above re-

ferred to.

Tha court, in its Findings of Fact, further found, (Para-

graph 27) thxt the appellees had reasonable basis for their

fear; th.. if the appellants and other of the ‘‘Jehovah’s

Witnesses’? who were distributing literature in St. Clair

and Saline Counties were not restrained that riots, assaults

and breaches of the peace would ensue ‘‘because of resent-

ment against the bitter attacks made in said literature upon

all religion and upon the Protestant and Catholic churches

and the charges of corruption, deception and disloyalty made

against the heads and leaders of said churches”’ (Paragraph

27, Finding of Facts).

The court below further found, as a fact, that the appel-

lants and other members of their groups would not suffer

“irreparable injuries or damages of any considerable con-

sequence’’ if an interlocutory injunction was not granted

pending final hearing. The court below further found that

the officials and law enforcing officers of St. Clair and

Saline Counties were enforcing in their communities the

provisions of Section 471, Chapter 38 of the Illinois Stat-

ute in a manner dictated by their honest judgments ‘‘as

lawful’’ and ‘‘as honestly believed by them to be lawful

and necessary to preserve peace and prevent riots and other

disturbances of the peace, as well as threatened injury to

public and to individuals and to public and private prop-

erty.’’

The court below, in its memorandum, said:

‘‘Furthermore, it does not appear from the evidence

that it is essential for the plaintiffs (appellants herein)

to distribute literature which belabors existing churches

and their leaders with defamatory charges and epithets

in order to perform their ministry.’’

The court below further said, in its memorandum:

‘‘In the view we take of the case under the evidence

we do not find it now necessary to consider the consti-

tutionality of the statute. In passing, however, we do

say that it is not clearly apparent that the statute in

question is unconstitutional. Plaintiffs say it is vague

and indefinite. There is truth in the charge but the

statute deals with a type of offense that defies exact

definitiveness. In that respect it is similar to statutes

creating the offense of criminal libel. (Chapter 38,

Section 402, Illinois Revised Statutes 1939.) Whether

a statute of the State of Illinois is valid which makes

the defamation of a class a criminal offense would seem

first to be a question for the Courts of Illinois.’’

The court below, in its memorandum, further said:

‘The record shows that there are a score or more

of cases against plaintiffs pending in the courts of

Illinois, each presenting an opportunity for a speedy

determination of the validity, meaning and proper ap-

plication of the statute in question, in so far as plain-

tiffs’ rights are affected. Should the decision of the

Illinois Courts be unsatisfactory a review of the Fed-

eral questions by the Supreme Court of the United

States will be available. In our view of the case, under

the evidence now before the court, the circumstances

are not of that exceptional character that justifies an

interference by the Federal courts when the way is

open for plaintiffs to secure a prompt adjudication of

their rights in the courts of Illinois.

Plaintiffs assert that they have not violated the IIli-

nois statute in question when properly construed. The

Illinois Supreme Court alone can declare with final

authority the meaning and applicability of the statute.’’

The court, in its memorandum, then considered the ques-

tion of whether or not the appellants, by the enforcement

of the statute, would sustain irreparable loss, and said:

‘We think the question must be answered in the

negative and the application for interlocutory injunc-

tion denied.’’

There is No Substantial Constitutional Question Involved

in This Controversy.

The court below so held, in substance, when it found:

That it was unnecessary under the evidence for that

court to consider the constitutionality of the State stat-

ute, but that had the court found it necessary to pass upon

the constitutionality of the statute it would have found

that it was not clearly unconstitutional.

That whether the statute in question was unconstitutional

“‘would seem to be first a question for the Courts of Illi-

nois.’’

That the general equity rule was applicable, i. e., a court

of equity will not interfere to prevent the enforcement of a

criminal statute only under extraordinary circumstances

where the danger of irreparable loss is both great and im-

mediate,

That the danger of irreparable loss to the appellants was

neither great nor immediate.

That such loss to the appellants as may be threatened can

be obviated in a large measure, if the appellants desire, by

seeking a constitutional construction of the statute in the

Illinois courts.

That Federal courts are reluctant to construe or pass

upon the validity of a State statute, or a principle of law

involving State policies or local property rules when the

construction or application of such statute or principle

may remove all constitutional objections, and particularly,

in the instant case, where such determination can readily

be obtained in the State courts.

That the contention of the appellants that they have not

violated the State statute, if properly construed, is un-

sound, the court finding that the final authority to deter-

mine the meaning and applicability of the State statute

was for the Illinois courts.

We feel that the following propositions of law, and the

authorities cited in support thereof, fully sustain the ac-

tion of the trial court, and refute the grounds upon which

the appellants ask that this Court take jurisdiction of this

cause.

Equity will not interfere to prevent the enforcement of a

State criminal statute, even though unconstitutional, unless

it be under exceptional circumstances where the danger of

irreparable loss is both great and immediate, and only then

upon @ clear showing that an injunction is necessary in

order to afford adequate protection of constitutional rights.

Spielman Motor Co. v. Dodge, 295 U. 8. 89-95.

Railroad Commission of Texas v. Pullman Co., 312 U.S.

—, 61 S. Ct. 643, 644-645.

Beal v. Missouri Pac. R. R., 312 U. S. 45, 61 Sup. Ct.

418, 421.

Fenner v. Boykin, 271 U. S. 240.

Watch Tower Bible & Tract Soc. v. City of Bristol,

24 F. S. 57, Aff’d without opinion 305 U. S. 572.

Watson v. Buck, — U. S. —, 61 Sup. Ct. 962-966.

The Court in its memoranda found that the danger of

irreparable loss was neither great nor immediate, saying:

‘*Here the danger of irreparable loss is neither great

nor immediate and such loss as may be threatened can

be obviated in large measure by the plaintiffs them-

selves, if they so desire, pending the hearing of the

case on its merits or the authoritative construction of

the statute by the courts of the State.’’

The court further said that there were no exceptional

circumstances in the case warranting the intervention of a

court of equity, saying:

‘*The record shows that there are a score or more of

cases against plaintiffs pending in the courts of IIli-

nois each presenting an opportunity for a speedy de-

termination of the validity, meaning and proper ap-

plication of the statute in question in so far as plain-

tiffs’ rights are affected. Should the decision of the

Illinois courts be unsatisfactory a review of the Fed-

eral questions by the Supreme Court of the United

States will be available. In our view of the case, un-

der the evidence now before the court, the circum-

stances are not of that exceptional character that jus-

tifies an interference by the Federal courts when the

way is open for plaintiffs to secure a prompt adjudica-

tion of their rights in the courts of Illinois.’’

In view of the rule of law laid down in the cited cases and

the facts as found by the court below, we do not believe

that this Court is warranted in assuming jurisdiction herein.

The statute in question is a valid exercise of police power

of the State and has been so construed by the Courts of

Illinois.

Fox Film Corp. v. Collins, 236 Ill. App. 281-294.

Block v. City of Chicago, 239 Ill. 251.

People v. Spielman, 318 Ill. 482.

Knights of Pythias v. Meyer, 265 U. S. 30-32.

Erie Railroad Co. v. Hiet, 274 U. S. 99, 100-101.

Watch Tower Bible & Tract Soc. v. City of Bristol, 24

F. Supp. 57, Aff’d without opinion, 305 U. S. 572.

Whitney v. California, 274 U. S. 357.

Western Turf Ass’n v. Greenberg, 204 U. S. 359.

The validity of the statute in question was considered

in Fox Film Corp. v. Collins, 236 Tl. App. 281, where that

court had before it the consideration of the validity of an

ordinance of the City of Chicago, which was in the words of

the statute (Chapter 38, Paragraph 471, Illinois Revised

Statutes 1939), except the words ‘‘immoral’’ and ‘‘obscene”’

were added to the ordinance.

The court said, (page 286) concerning this ordinance:

‘(In 1922, the City of Chicago, following quite closely

the text of the amended statute, passed an ordinance

(Section 2787, Chicago Municipal Code 1922) which

provided that if a picture for the showing or exhibition

of which an application for a permit is made ‘is im-

moral or obscene, or portrays depravity, criminality

or lack of virtue, of a class of citizens of any race, color,

creed or religion and exposes them to contempt, de-

rision or obloquy, or tends to produce a breach of the

peace or riots, or purports to represent any hanging,

lynching or burning of a human being, it shall be the

duty of the superintendent of police to refuse such

permit, otherwise it shall be his duty to grant such

permit.’ The words ‘immoral or obscene’ are not in

the statute.’’

The court then said (Pages 289-290), concerning its

validity :

‘‘The question then arises, do the new matters con-

tained in section 2787 render the ordinance invalid.

They were put in, apparently, to have the ordinance

comply in substance with the Criminal Code. In addi-

tion to the words ‘immoral or obscene’ they are as fol-

lows: (1) Pictures which portray depravity, criminality

or lack of virtue of a class of citizens of any race, color,

creed or religion and expose them to contempt, de-

rision, or obloquy; (2) those which tend to produce a

breach of the peace or riots; and (3) those purporting

to represent any hanging, lynching or burning of a

human being. Of course it may be a question whether

or not the word ‘immoral’ as used in the earlier and

in the present ordinance and sanctioned by the Block

case, is not in and of itself of sufficient connotation to

include all the other matters now recited in section

2787, but, however, that may be, we are of the opinion

that the added matters do not make the section invalid.

In determining whether a picture portrays depravity

of a class and exposes them to obloquy, or portrays

matters tending to produce a breach of the peace or

riots, or purports to represent any hanging, lynching

or burning of a human being, it does not require any

more knowledge or the exercise of any more difficult

judgment than in determining whether a picture is

immoral or obscene ; yet the determination of the latter,

pursuant to an ordinance, has already been approved,

as we have stated above, in the Block case. In our judg-

ment, none of the added matters makes the section

invalid.’’

‘he Block case therein referred to by the court is Block

v. City of Chicago, 239 Ill. 251, wherein a similar ordinance

was held valid.

The court below, in its memoranda filed with appellants’

jurisdictional statement, said with reference to the validity

of the statute in question:

‘‘In the view we take of the case under the evidence

we do not find it now necessary to consider the con-

stitutionality of the statute. In passing, however, we

do say that it is not clearly apparent that the statute

in question is unconstitutional. Plaintiffs say it is

vague and indefinite. There is truth in the charge but

the statute deals with a type of offense that defies exact

definitiveness. In that respect it is similar to statutes

creating the offense of criminal libel. (Chapter 38, Sec-

tion 402, Illinois Revised Statutes 1939.)”’

It should be noted that the court therein referred to the

Illinois statute pertaining to criminal libel.

The statute referred to is as follows (Chapter 38, Para-

graph 402, Smith-Hurd Annotated Illinois Statutes) :

‘¢A libel is a malicious defamation, expressed either

by printing, or by signs or pictures, or the like, tending

to blacken the memory of one who is dead, or to im-

peach the honesty, integrity, virtue or reputation or

publish the natural defects of one who is alive, and

thereby to expose him to public hatred, contempt, ridi-

cule, or financial injury. (1874, March 27, R. S. 1874,

p. 348, Div. 1, Par. 177.)”’

The Supreme Court of Illinois had before it for con-

sideration the ‘‘libel’’ statute above referred to in the case

of The People v. Spielman, 318 Ill. 482. In this case the

newspaper printed a scurrilous and defamatory article con-

cerning the American Legion. The Supreme Court said

(Page 489) :

‘¢Criminal liability for libels rests upon their tend-

ency to provide breaches of the peace. (State v. Avery,

7 Conn. 266; Kennerly v. Hennessy, 68 Fla. 138; Newell

on Slander and Libel, 4th ed. secs. 804, 807, 827 ; 4 Shars-

wood’s Blackstone’s Com. P. 151; 3 Wharton’s Crim.

Law,—11th ed., secs. 1915, 1916; 1 Bishop’s Crim. Law

—9th ed.—sec. 540.) The libel need not be on a par-

ticular person. It may be upon a family, class, cor-

poration or other body. (State v. Brady, 44 Kan. 435;

Crane v. State, 14 Okla. Crim. 30; State v. Hosmer, 142

Pac. (Ore.) 581; Jones v. State, 38 Tex. Crim. 364;

Palmer v. City of Concord, 48 N. H. 211 ; Rex v. Osborne,

2 Barn. K. B. 138.) A libel upon a class or group has

as great a tendency to provoke a breach of the peace

or to disturb society as has a libel on an individual,

and such a libel is punishable even though its applica-

tion to individual members of the class or group can-

not be proved. Rex v. Osborne, supra; People v.

Gordon, 219 Pac. (Cal.) 486; State v. Brady, supra.”’

In Knights of Pythias v. Meyer, 265 U. S. 30, 32, this

Court said:

‘Under the settled rule of this court, declared so

frequently and uniformly as to have become axiomatic,

we must accept this decision of the highest court of

the State fixing the meaning of the State legislation,

as though such meaning had been specifically expressed

therein. See, for example, Leffingwell v. Warren, 2

Black 599, 603; Green v. Lessee of Neal, 6 Pet. 291,

297-300; And we follow the state construction even

though it may not agree with our own opinion. Super-

visors v. United States, 18 Wall. 71, 82; Shelby v. Guy,

11 Wheat. 361, 367; Tioga R. R. v. Blossburg & Corning

R. R., 20 Wall. 137, 143.”

It is true that the Illinois Supreme Court has not directly

passed upon the statute in question, but in passing on

similar statutes it has so clearly defined its position that

it seems inescapable that if it were required to pass upon

the exact statute that it would sustain its validity. This

seems apparent from what has been said in the foregoing

cases.

In addition, the Appellate Court of Illinois, an inter-

mediate court of that State, in Fox Film Corp. v. Collins,

236 Ill. App. 281, passed directly on the validity of this

statute.

In Erie Railroad Co. v. Hiet, 247 U. S. 99, 100-101, this

Court, with reference to its attitude in adopting the inter-

pretation placed upon a statute by an intermediate State

court, said:

‘‘The words of the statute seem to us to require a

different construction from that adopted and they have

been given their full literal meaning by the Supreme

Court of the State in the case of an infant younger

than the plaintiff. Barcolini v. Atlantic City & Shore

R. R. Co., 82 N. J. L. 107. In view of the importance

of that tribunal in New Jersey, although not the highest

court in the State, we see no reason why it should not

be followed by the Courts of the United States, even if

we thought its decision more doubtful than we do.’’

Under these circumstances this Court would be amply

justified in declining to accept jurisdiction in this case.

The appellants have not been deprived of their right to

worship God in accordance with the dictates of their own

consciences, or denied any other of their constitutional

rights. The constitutional guarantee of religious freedom

does not include the right to wilfully violate the laws.

The policy of the State of Illinois, with reference to its

guarantee of religious freedom, is set forth in its Consti-

tution (Section 3, Article II, Illinois Constitution 1870), as

follows:

‘‘The free exercise and enjoyment of religious pro-

fession and worship, without discrimination, shall for-

ever be guaranteed; and no person shall be denied any

civil or political right, privilege or capacity, on account

of his religious opinions; but the liberty of conscience

hereby secured shall not be construed to dispense with

oaths or affirmations, excuse acts of licentiousness, or

justify practices inconsistent with the peace or safety

of the state. No person shall be required to attend or

support any ministry or place of worship against his

consent, nor shall any preference be given by law to

any religious denomination or mode of worship.’’

(Italics ours.)

The court below aptly said, in its memoranda filed here-

with:

‘*Furthermore, it does not appear from the evidence

that it is essential for the plaintiffs to distribute litera-

ture which belabors existing churches and their leaders

with defamatory charges and epithets in order to per-

form their ministry.’’

It affirmatively appears from the Special Finding of Facts

by the court below that as a result of similar activities

on the part of the appellants in localities near or adjacent

to St. Clair and Saline counties that serious riots occurred,

resulting in serious injury to a number of persons, and

destruction of property, necessitating the calling of the

Illinois State Police Riot Squad to quell the riot, but the

appellants attempt to meet these contentions by saying

that if breaches of peace or riots occurred as a result of

their scurrilous attack upon religion and the Catholic

Church and its doctrines, that it is no fault of theirs,

but is the fault of the people who were offended by the

literature thus distributed. This position is refuted in one

of appellants’ own cases; Cantwell v. Connecticut, 310 U. 8.

296, where this Court said (p. 308):

“The offense known as breach of the peace embraces

a great variety of conduct destroying or menacing pub-

lic order and tranquility. It includes not only violent

acts but acts and words likely to produce violence in

others. No one would have the hardihood to suggest

that the principle of freedom of speech sanctions in-

citement to riot or that religious liberty connotes the

privilege to exhort others to physical attack upon those

belonging to another sect. When clear and present

danger of riot, disorder, interference with traffic upon

the public streets, or other immediate threat to public

safety, peace or order appears, the power of the State

to prevent or punish is obvious.’’ (Italics ours.)

And this Court has said:

‘‘A party’s religious belief cannot be accepted as a

justification for committing an overt act made criminal

by the law of the land. Reynolds v. U. 8.,98 U. 8. 145.’’

And the courts of the various States have enunciated

similar doctrines. (See: City of Louisiana v. Bottoms, 300

S. W. (Mo. App.) 316, 318; Coleman v. City of Griffin,

189 S. E. (Ga.) 427, 429; McMasters v. State, 207 P. (Okla.

App.) 566, 568-569.)

The appellants in St. Clair County, Illinois, were charged

with statutory misconduct under the State statute which

was ‘‘productive of the breach of peace or riot contrary to

the form of the statute, * °* *.”’

In Saline County the complaints filed against the appel-

lants charged the said appellants with breach of the peace.

The complaints included, in addition to the statutory charge,

a further allegation, which, in substance, was as follows:

‘s# * * which was productive of breach of peace and

riots’’.

From time immemorial, controversies have raged be-

tween religious sects and believers. The contention of the

appellants that theirs is the only true religion is not a novel

or original theory. The Catholic, the Protestant, the Jew,

the Mohammedans, and the followers of Confucius have

made this same contention through the ages. It is a matter

of knowledge so general that this Court will take judicial

notice of the fact that a man’s religion is instilled in him

from his birth. It can be safely said that as a general

rule the teachings to the child will be the belief of the

adult, and so thoroughly do parents instill in the minds

of their children the sanctity of God in accordance with

their beliefs that an insult to one’s religion or its doctrines

is more likely to provoke ill-feeling, breach of the peace,

and riots than possibly any other known form of discussion.

And we earnestly believe that the trial court adopted the

correct view when it said that, in its opinion, the appellants

could properly carry on their religious work without con-

ducting a tirade and campaign of hatred against all

religions.

In Dealk v. Commonwealth, 166 Ky. 39, 178 S. W. 129,

a breach of the peace was defined in the following terms:

“In general terms a breach of the peace is a viola-

tion of public order, a disturbance of the public tran-

quility, by any act or conduct inciting to violence or

tending to provoke, or excite others to break the peace.

By ‘peace’ as used in the law in this connection, is

meant the tranquility enjoyed by citizens of a munici-

pality or community where good order reigns among

its members, which is the natural right of all persons

in political society. It is, so to speak, that invisible

sense of security which every man feels so necessary

to his comfort, and for which all governments are in-

stituted. It is not necessary that the peace be actually

broken to lay the foundation for a prosecution for this

offense. If what is done is unjustifiable and unlawful,

tending with sufficient directness to break the peace,

no more is required. Nor is actual personal violence

an essential element in the offense. If it were, com-

munities might be kept in a constant state of turmoil,

fear and anticipated danger from the wicked language

and conduct of a guilty party, not only destructive of

the peace of the citizens but of public morals without

the commission of the offense. The good sense and

morality of the law forbid such a construction.”’

In that case a minister of the gospel was arrested and

charged with breach of the peace in using ‘‘obscene, vulgar

and indecent language’’ in the presence of an assembly of

people, including women and children. The Supreme Court

of Kentucky, in sustaining the conviction, aptly said:

‘The appellant’s excuse that he was merely rebuking

the sin of impurity; that he did not intend to disturb

or embarrass any one, but made the statement as a

warning and rebuke to sin, is wholly without justifica-

tion.

It does not avail appellant for him to say he has a

right to propagate his religious views. That right is

not denied; but one will not be permitted to commit a

breach of the peace, under the guise of preaching the

gospel.”’

It is a well known fact that the same act or conduct

may be a breach of peace in one community or locality,

and would not be considered so in another community or

locality. In the Dealk case, supra, it was said on this point:

‘*Tt is well known that an Act which if committed

at a certain place or time would not amount to a breach

of the peace might well be considered as a crime if

committed at another time or place, and under differ-

ent circumstances. People v. Johnson, 86 Mich. 175,

48 N. W. 879, 24 Am. St. Rep. 116, 13 L. R. A. 163.”’