Petition for a Writ of Certiorari — Watchtower Bible & Tract Society, Inc. v. County of Los Angeles

Supreme Court of the An

Ocroser Term, 1949

No. 1 48

WartcHTtower Brsie anv Tract Society, Inc.

Petitioner

Vv.

County or Los ANGELES, CALIFORNIA,

City oF Lynwoop, CaLiFornia, and

H. L. Byram, County Tax Collector,

Los Angeles County, California

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Haypen C. Covineron

Counsel for Petitioner

PRR ETO TINA FY BEEN LRT PE IEEE ASS ET MN FY FTE BEN CS EAR ae

INDEX

Suspsect InpEx

PAGE

eee Oe NE OE GUID a ong oni Pence ac tancnss

Nia S be sind baa w edie aR hk ee Gad ee an eee

PETITION FoR A WRIT OF CERTIORARI ................-

ES cog a clas chb'ees wuA Sadek Cad aa xeae

TRG. sibs nak chEhG saa ds 2 4Aee Rad awk os

EE bk v0 oi cine Oe oa tA ao eR OAR

EE i snk 5 cis cea c ener hence eae dene Ve

Constitutional provisions involved ...............

DS Jick see chva aeneaducthbGnede as an eaces

Specification of errors to be urged ................

Reasons relied on for granting the writ ............

i —

COORD NDE GH

CasEs CITED

Arizona Publishing Co. v. O’Neil

SE oak 6A eka beeen aad cio wes ex eae

Associated Press v. N. L. R. B.

Se hans Nosuls ccanhinvasbescece dan

Bailey v. Drexel (“Child Labor Tax Case”)

ES nnn s ds v5.4ks whEKeROnhae che tee

Cummings v. Missouri

aoe in o's dl aik bales ees wa Raa

Darr v. Burford

Pe EG IE: As vba Red ond nia deesed eenenne

Everson v. Board of Education

Eee ie as kek dsadevin chads vexeeeeewonde

Flint v. Stone Tracy Co.

EE Gh ov cceu kee cee uwedkaaneacen feene

Casss Crrep continued

PAQn

Follett v. MeCormick

a inks aN dhoabayseewana 7, 12, 17, 25

Giragi v. Moore

EE otis heeekn kak gad on Sse es 5 vs 15. 16

Grosjean v. American Press Co,

EE ns wha baweaseenss 7, 12, 15, 17, 22

House v. Mayo

Fe ee ie Cem aheak nna’ 3

Jackson Ex parte

EE oie naan Awa pnatuehaesesseeess « 17

Jones v. Opelika

316 U.S, 584, GOS, 609-610; reversed 319 ULS, 108) 13-14

Joseph v. Carter & Weekes Stevedoring Co.

330 U.S, 482, 426, 497-428, 445 2... 19-20

Lovell v. Griffin

GE EE ei og hale sacnaauubecenseean 16,17

Magnano Co. v. Hamilton

es kan wide i caedieesneeunss M4

McCollum v. Board of Education

Se 8 9, 25, 26

MeConkey vy. Fredericksburg

ee es Sy Oe ED wc yenscccccevetons 7

MeCray v. United States

ER CC a oe er M4

MeCulloch v. Maryland

a eek cake sta de enscees 28

Murdock v. Pennsylvania

EE ea A iaweawies hens cena ees 7, 12, 17, 22, 95

Muskogee County v. United States

133 F. 2d 61, cert. denied 319 U.S. 745 22.0000... 5

Near v. Minnesota

EE ic aen ext ksnnsbenensae es 23

ii

ae PARRY REED ES AIRE EIDE eA BME MIE A IRIE ES er sy CEES lag

Casss Creep continued

PAGE

Nippert v. City of Richmond

327 U.S. 416, 423, 481, 434, 485 2.0... 21-22

Richfield Oil Corp, v. State Board of Equalization

329 U.S, 69, 74, 76, 78, 82-83, 85, 86.2... 11-12

Spencer v, Merchant

EE ts Dev eiaky cs b4'ou Nak <6 a0 heoaw ees 24

Stewart Dry Goods Co, v. Lewis

EE ae A Dich rie sid bcd e'n ad ucndin un.d 04 e4a's 24

Stratton v. St, Louis Southwestern Ry. Co,

ET Sct SV iad ak creda ehed 66 aee Aaa daeks 5

Sunal v. Large

nasa oun sd vh¥n bean ceeeseens 3

Thornhill v. Alabama

ES igeb in inaks txives be kekkihdbeheaee 22

Veazie Baak v. Fenno

cea, Ciel ve non 54 dad ckewn tea 24

Vermont v. Greaves

BER VS, Dame Se BD. BG GT onc cess cscccccccaces 17

Ward vy. Board of County Commissioners

Raa aids DEnthnhees eke Abeess <0 acces 5

Watchtower Bible and Tract Society, Inc. v.

County of Los Angeles

30 Cal, 2d 426, 182 P. 2d 178, cert. denied

SIME oa Wha cae GGe sekaes Gk4s cada kno’ 3,7, 14

Strarutss Crrep

California Revenue and Taxation Code ............

EP aan baa vacens OT EET ee ae

ea an pe ee a gala he miegs ‘as

Cg ee As ys Ca et a haa whee

es oe ae uy daub hacen wewkak Kam

ERE Se se ae ee ce ERS ee ve

I chin ib ck dirs cbse cee cckwaewlenss

~ - & » & mm BS

LSE Meee A ATT (ARNE SR NO i NAL AT RI LEI NS Re Ae

Statutes Cirep continued

PAGE

Ct SE ME ot aca Gre Sch ee di esdecnee ecednes 6,7

United States Code—

ieee Be, OCT TORE CB) occa sc ecvciccccccceccse 6

Title 28, Section 1254 (1) (Section 240 (a) of the

Judicial Code as amended by Act of February 13,

SEA Gk Ceeauetaeiaibad sci wacan Pie ces Seaeees 2

United States Constitution

PIE BE von. bkss ys oh easases 2, 4, 5, 6, 7, 8, 10, 11, 12,

14, 16, 20, 22, 23, 25, 26

pg Terr errr ree 4, 5, 6, 8, 15

MISCELLANEOUS CITATIONS

Bancroft, 2, History of the United States, p.261.... 22

Bleyer, W. G., The History of American Journalism,

EN Ma EE 0 0k Wake ued SO cAM GD hwkke ey eo eee 094608 ad,

Clyde, W. M., The Struggle for the Freedom of the |

Press from Caxton to Cromwell, 1934 ed. ........ a

Collet, C. D., History of Taxes on Knowledge,

hier) a rendaa ck aw dss ahake sa akhnusss ois 23

Duniway, The Development of Freedom of the }

Press in Massachusetts, p. 123 et seq. ............ Ss |

Ford, Pamphlets on the Constitution of the

United States, 1787-1788, pp. 113, 156-157,

BL EE sé.ccdl ce dehwh cian waeceaKekannd kiss 22

Patterson, G. J., Free Speech and a Free Press,

EE bac a vhdwecencatsedeatekuapsechsenen’ 22

Pennsylvania and the Federal Constitution,

McMaster and Stone, Eds., pp. 180, 181,

PU 6 RRR A Cie Rede en dak ses sldebeases 23

Schofield, Freedom of the Press in the United States,

(1914) 9 Proce. Am. Social. Sec. 67, 76, 80 ........ 22

iv

E777"

MIscELLANEOUS C1TaTIONS continued

Stevens, Sources of the Constitution of the United

States, pp. 213, 218, 221 (1894) ..................

Stewart, Lennox and the Taxes on Knowledge, |

15 Scottish Hist. Rev. 322, 326 .................. 23

Tyler, Literary History of the American Revolution 22

ESR TUT ATR RD, ARR EE ae

SUPREME COURT OF THE UNITED STATES

OcroBER TERM, 1949

No.

WatcHTowER Briste anp Tract Society, Inc.

Petitioner

Vv.

County or Los ANGELES, CALIFORNIA,

City or Lynwoop, Cauirornia, and

H. L. Byram, County Tax Collector,

Los Angeles County, California

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Hayden C. Covington, on behalf of Watchtower Bible

and Tract Society, Inc., seeks the issuance of a writ of

certiorari to review the judgment entered in this case on

April 29, 1950, by the United States Court of Appeals

for the Ninth Circuit, affirming the judgment of the United

States District Court for the Southern District of Cali-

fornia, rendered against petitioner.

1

e a Wae 3 so ies ANG RNY Din eg eta eat Cee ta ee re RT ee ie a aL

mania Siaeat aM Ce TNR GA THOS ’

OPINIONS BELOW

The district court rendered its opinion May 26, 1949.

(24-28)? It is not reported. The opinion of the court of

appeals is not yet reported. It appears in the record. (70-74)

JURISDICTION

The judgment of the court of appeals was entered on

April 29, 1950. (75) The jurisdiction of this Court is invoked

under Section 240 (a) of the Judicial Code, as amended by

the Act of February 13, 1925, 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. Whether the California Revenue and Taxation Code

and the ad valorem personal property tax assessed there-

under, as applied to the facts of this case, abridge freedom

of press and freedom of worship, contrary to the First

Amendment, because they have taxed literature necessary

for use in worship by petitioner, a society of missionary

evangelists, in door-to-deor preaching, such literature being

stored for immediate use at the distribution depot of peti-

tioner.

2. Whether the separation of church and state doctrine,

implicit in the First Amendment, withdraws from peti-

tioner the protection of the explicit provisions of the First

Amendment against abridgment of religion, which in this

case is an ad valorem tax upon religious literature.

1 Figures appearing in parentheses refer to pages of printed transcript

of record.

Sa ee

3

This first question above stated was raised by the same

petitioner against the same respondents in the California

courts, resulting in an adverse decision. (Watchtower Bible

and Tract Society, Inc. v. County of Los Angeles, 30 Cal.

2d 426, 182 P. 2d 178) This Court refused to review tue

decision on petition for writ of certiorari with Mr. Jus-

tice Murphy dissenting. (332 U.S. 811) The “denial

of certiorari by this Court in the earlier case imported no

expression of opinion on the merits”. Sunal v. Large, 332

U.S. 174, 181; House v. Mayo, 324 U.S. 42, 48.

“Nothing is more basic to the functioning of this Court

than an understanding that denial of certiorari is occa-

sioned by a variety of reasons which precludes the impli-

cation that were the case here the merits would go against

the petitioner. Petitions may have been denied because,

even though serious constitutional questions were raised,

it seemed to at least six members of the Court that the

issue was either not ripe enough or too moribund for ad-

judication; that the question had better await the perspec-

tive of time or that time would soon bury the question or,

for one reasou or another, it was desirable to wait and see;

or that the constitutional question was entangled with non-

constitutional issues that raised doubt whether the consti-

tutional issue could be effectively isolated; or for various

other reasons not relating to the merits. Divergent and

contradictory reasons often operate as to the same peti-

tion and lead to a common vote of denial. The want of

explanations for denials of certiorari is in part due to the

fact that a collective reason frequently could not be given.”

Darr v. Burford, 70 S. Ct. 587, 602, Mr. Justice Frankfur-

ter, dissenting.

Use 3

Diination

STATUTES INVOLVED

The provisions of the California Revenue and Taxa-

tion Code, authorizing the ad valorem tax, here drawn in

question, are as follows:

Sec. 106. “Personal property” includes all property ex-

cept real estate. California Revenue and Taxation Code.

See. 201. All property in this State, not exempt under

the laws of the United States or of this State, is subject to

taxation under this code. California R. and T. Code.

See. 401. Except as provided in this part, all taxable

property shall be assessed at its full cash value. California

R. and T. Code.

See. 2151. The board of supervisors shall fix the rate of

county and district taxes and shall levy the State, county and

district taxes as provided by law. California R. and T. Code.

Sec. 2602: Taxes to be collected. “The tax collector shall

collect all propcriy taxes except as otherwise expressly

provided.”

Sec. 2903: Collection by assessor. The assessor may col-

lect taxes on unsecured property.

CONSTITUTIONAL PROVISIONS INVOLVED

The First and Fourteenth Amendments to the United

States Constitution, protecting fundamental freedoms, are

relied upon.

STATEMENT

Petitioner is a New York membership corporation

formed and operated for the purpose of directing the

preaching activity of Jehovah’s witnesses and supplying

them with literature to carry on door-to-door evangelistic

work in California and elsewhere in the United States. (30-

31) Petitioner is authorized to do business in the State of

5)

California, having fully complied with the foreign corpora-

tion statute of the State. (31)

Petitioner owns and operates a storage depot where

Bibles and Bible literature are kept and redistributed by it

to ministers of the gospel and evangelists executing the

corporate purposes of the society by preaching and carrying

on missionary work in California and other states in the

western part of the United States. The literature redistrib-

uted from said depot to said missionaries and ministers

contains information and opinion in the form of printed

sermons on Bible subjects, necessary as a substitute for

oral sermons in their preaching work publicly and from

door to door. (32-34)

None of said literature is sold commercially. It is stored

in the redistribution depot in anticipation of redistribution

to such ministers, missionaries and evangelists in the field

representing petitioner. (35)

In 1947 the assessor for the County of Los Angeles en-

tered the above-described literature, then stored at the de-

pot, on the tax assessment rolls of the County of Los An-

geles. (34-35) The tax collector mailed petitioner a tax bill

in the amount of $292.85. The taxes were paid under written

protest which alleged the unconstitutionality of the statutes

and the tax on the ground that they deprived petitioner of

its rights of freedom of press and of worship, contrary to

the First and Fourteenth Amendments to the United States

Constitution. (36-37)

The taxes were not paid voluntarily, but under duress’,

since it was necessary to pay the taxes in order to prevent

the sale of the personal and real property belonging to pe-

titioner. (38)

Petitioner filed a complaint in the District Court for

2 The federal courts have jurisdiction to compel the repayment of taxes

paid under duress. Stratton v. St. Louis Southwestern Ry. Co., 284 U.S.

530; Ward v. Board of County Commissioners, 253 U.S. 17; Muskogee

County v. United States, 133 F. 2d 61, cert. denied 319 U.S. 745.

6

the Southern District of California on November 16, 1948.

(2-16) The action was brought for the purpose of compel-

ling the repayment of taxes assessed and collected by the

respondents and which were paid by petitioner under du-

ress, upon literature stored in petitioner’s redistribution

depot in Lynwood. The complaint contended that the

statute authorizing the taxes and the taxes assessed and

collected were void and unconstitutional because abridging

petitioner’s rights to freedom of press and freedom of wor-

ship, contrary to the First and Fourteenth Amendments

to the United States Constitution and the Civil Rights Act.

(2-16)

Although the jurisdictional amount of Three Thousand

Dollars ($3,000.00), exclusive of interest and costs, was not

alleged, it was claimed by petitioner that the court never-

theless had jurisdiction to ente: tain the action for the col-

lection of the taxes in the amount of $292.85 on the ground

that the cause of action arose under the Civil Rights Act

and that jurisdiction of the district court existed by reason

of Title 28, United States Code, Section 1343 (3). (2-3,

14-15)

The cause was heard before the court upon stipulation

of fact. (56-61) Exhibits were received into evidence. (48-

55) The trial court made specific findings of fact which con-

formed to the stipulation of the parties. (30-39) The trial

court concluded that the jurisdiction of the federal court

existed under the Civil Rights Act. (25-26)

The judgment of the trial court was that petitioner

take nothing by its suit and that the action be dismissed.

(40-41) The judgment of the trial court was duly appealed

to the court of appeals. (41-44) Points to be relied upon

were duly filed. (63-64) The cause was submitted, following

oral argument, on March 23, 1950. (69)

7

The court.of appeals thereafter filed an opinion. (70-

74) That court held that petitioner was entitled to claim

the rights guaranteed by the First Amendment and that the

federal courts had jurisdiction under the Civil Rights Act.

(71) The court concluded that because money derived from

the ad valorem tax was used to provide police and fire

protection for the community where the depot was located

the tax differed “from the license fee directly laid on one

of Jehovah’s Witnesses in Murdock v. Pennsylvania, 319

U.S. 105, 116”, notwithstanding the fact that the license

tax in the Murdock case was to pay for “protecting those on

the streets and at homes against the abuse of solicitors.”

(71-72) The court relied on the dictum in the cases of Mur-

dock v. Pennsylvania, 319 U.S. 105; Grosjean v. American

Press Company, 297 U.S. 233; and Follett v. McCormick,

321 U.S. 573. (72-73) The court adopted the language of

the holding of the Supreme Court of California in Watch-

tower Bible and Tract Society v. County of Los Angeles,

30 Cal. 2d 426, 182 P. 2d 178. (73-74) The court of appeals

then held that to grant the relief prayed for by petitioner

would be unconstitutionally aiding the petitioner to “spread

their faith”. The court said: “Such aid was held by the Su-

preme Court in McCollum v. Board of Education, 333 U.S.

203, 210, to be ‘under the ban of the First Amendment

(made applicable to the States by the Fourteenth) as we

interpreted it in Everson v. Board of Fducation, 330 U.S.

1, 15, 16.’” (74)

The court entered a judgment affirming the judgment

of the district court dismissing the action. (75)

ss Rap EAR NG EI NTE OL TE LOL ROE NT PEE ee DY MBL ME ER CAPSS oe

SPECIFICATION OF ERRORS TO BE URGED

The court of appeals erred

(1) In holding that the decisions of this Court are

that an ad valorem tax on literature used by a preacher

in preaching is not an unconstitutional burden upon free-

dom of press and worship, contrary to the First and Four-

teenth Amendments.

(2) In holding that the tax defrayed part of the expense

of police and fire protection to the depot and literature

stored therein, and that such services are not required to

be gratuitously supplied to petitioner.

(3) In holding that the separation of church and state

doctrine withdrew from the petitioner the protection of

the First Amendment because to declare the tax invalid

would be to aid one of the “religious groups to spread their

faith”, contrary to the holding of this Court in McCollum v.

Board of Education, 333 U.S. 203, 210.

(4) In failing to hold that the statutes and the tax

abridge freedom of press and of worship, contrary to the

First and Fourteenth Amendments.

(5) In failing to reverse the judgment of the district

court.

(6) In affirming the judgment of the district court dis-

missing the action.

PU RRL CNL SRT A Re SI MN EMS SE AE HTN EY CMAN NEY ARG G AI CBE RMR SIDER ADOT: HON SEY NLL SA NOD

REASONS RELIED ON FOR GRANTING THE WRIT

I

It is vital that this Court review this case because the

decisions of the courts below imperil the uniform practice

throughout the United States of granting religious exemp-

tion from taxation. Each of the forty-eight states and the

District of Columbia grant exemption to religious organi-

zations from the payment of taxes.

If it is unconstitutional to afford exemption from taxa-

tion because such would be aiding a religious group by

the state in violation of the separation of church and state

doctrine enunciated by the Court in McCollum v. Board of

Education, 333 U.S. 203, 210, as the court below held (74),

then hundreds of thousands of churches in this country have

suspended over them a sword of Damocles. It never has

been thought that the churches were standing on such

unstable grounds or that the authors of the Constitution

intended to stretch the separation of church and state doc-

trine that far.

All that is involved here is the ad valorem tax upon per-

sonal property. It is true that every church of the country

will not be greatly burdened by a tax on such literature as

may be found in the churches. But the fact remains that

the doctrine of separation of church and state as inter-

preted by the court below precludes the states from exempt-

ing in their constitutions religious organizations from

real estate taxes. This is the result of the decision below

when it is logically extended.

Not only are the legislative and constitutional policy

of all the states and the District of Columbia imperiled by

the doctrine of the decision below but also the welfare of

all the churches is affected and imperiled. Should the prin-

MAM iag RNG LOOT RR SPL PENIS, RET OSES SION LEI ISOT ARTME E PLA MR

10

ciple announced by the court below be allowed to stand,

it will give rise to further discriminations and denials. The

principle announced belov in effect repeals completely the

constitutional provisions o* all of the states and the Act of

Congress exempting reli..ous organizations in the District

of Columbia from taxation.

The holding of the court below that the doctrine of sepa-

ration of church and state precludes petitioner from claim-

ing benefits of the First Amendment against abridgment

by taxation produces an anomaly, an inconsistency and an

ambiguity that affects indirectly now and ultimately di-

rectly the rights and liberties of all of the religious organi-

zations in the United States and the people who attend,

belong to or support such organizations.

The construction placed on the First Amendment so

as to preclude a religious organization from claiming the

benefits of the First Amendment in this case is inconsis-

tent and creates an ambiguity that ought to be removed.

This Court ought to review this case and decide once and

for all whether a religious organization can be precluded

from protection of the First Amendment from taxation

which is claimed to abridge freedom of press and worship.

The issue of whether the state can tax religious litera-

ture used by a preacher as a’ part of his worship is a pres-

ently existing controversy. The perspective of time will

not terminate the problem. It continues to arise and will

undoubtedly increase in other parts of the country and in

many of the other communities in California. The case is

therefore important beyond the particular facts and par-

ties to this litigation. The practical effect of the decision

below is very extensive and justifies this Court in reviewing

the case and deciding the issues involved.

|

|

PT RRL IONS Me sad a ae ee ae

ll

II

The decisions below are in conflict with Richfield Oil

Corporation v. State Board of Equalization, 329 U.S. 69.

In that case it was held that the identical ad valorem per-

sonal property tax of California was invalid when applied

to personal property stored on the West Coast in antici-

pation of shipment in foreign commerce. The decision be-

low is in direct conflict with that holding because things

used which are necessary te the enjoyment of the rights

guaranteed by the First Amendment are as strongly

protected froin taxation as are things that move in foreign

commerce protected against taxation by the “import-ex-

port clause” of the Constitution. Therefore the ad valorem

personal property tax assessed against the literature in

this case is as invalid as was declared to be the ad valorem

tax assessed against the oil stored. This Court held:

“Article I, Section 10, Clause 2 of the Constitution pro-

vides that ‘No State shall without the Consent of the Con-

gress, lay any Imposts or Duties on Imports or Exports,

... [f] ... It is suggested, however, that the history of

the Import-Export Clause shows that it was designed to

prevent discriminatory taxes and not to preclude the levy

of general taxes applicable alike to ail goods. . . . The quali-

fied interpretation urged upon us has therefore no substan-

tial support in the history of the Import-Export Clause. .. .

(f] ... We cannot, therefore, read the prohibition against

‘any’ tax on exports as containing an implied qualification.

. .. [f] The prohibition contained in the Import-Export

Clause against taxation on exports clearly involves more

than a mere exemption from taxes laid specifically upon

the exported goods themselves. That is true of the constitu-

tional prohibition against federal taxes on exports. .. .

[1] We conclude that the tax which California has exacted

from appellant is an impost upon an export within the

meaning of Article I, Section 10, Clause 2, and is therefore

unconstitutional.” 329 U.S. 69, 74, 76, 78, 82-83, 85, 86.

GEIS TERI RRM N NAIVE EP ENS CIN ETIS LAR RE RESO

12

The action of the court below in sustaining the ad va-

lorem tax because it was a uniform tax generally appli-

cable to all alike, is, consequently, squarely opposed to

the ruling of this Court in Richfield Oil Corporation v.

State Board of Equalization, 329 U.S. 69.

III

The decisions below fail to give effect to applicable deci-

sions of this Court holding the license tax and other taxes

unconstitutional when applied to the distribution of litera-

ture, where the taxes were calculated on a uniform income

or valuation basis. Grosjean v. American Press Company,

297 U.S. 233; Murdock v. Pennsylvania, 319 U.S. 105;

Follett v. Town of McCormick, 321 U.S. 573.

The court below refers to certain dicta in these dicisions

claiming that this Court has said that a direct tax upon

literature is permissible and its not a violation of the First

Amendment. This Court has not so held. It is respectfully

submitted that the court below misinterpreted the dictum

appearing in Murdock v. Pennsylvania, 319 U.S. 105, at

pages 112, 116, and Follett v. Town of McCormick, 321 U.S.

573, at page 577.

The court below also relied on the dictum appearing in

Grosjean v. American Press Company, 297 U.S. 233, where

this Court said at page 250: “It is not intended by any-

thing we have said to suggest that the owners of newspa-

pers are immune from any of the ordinary forms of taxa-

tion for support of the government. But this is not an or-

dinary form of tax, but one single in kind, with a long

history of hostile misuse against the freedom of the press.”

(73)

It is submitted that the court below misinterpreted

the dictum from these decisions by the Court. When it was

said by the Court that one engaged in the exercise of free-

doms of speech, press and worship was liable for the pay-

13

ment of taxes on property, certainly the Court did not

mean to say that such taxes could be imposed on all prop-

erty. even property necessary to worship.

The basic fallacy of the decision of the court below is

that since the literature is “property”, it is not protected by

the guarantees of freedom of press and worship. In this

respect the conclusion reached is factitious. Through syl-

logism, beginning with false premises, the court below has

reached a conclusion that removes literature entirely from

the protection of freedom of the press aud worship. Thus

the hand of the clock has been turned buck centuries to the

time when literature was banned and taxed because of the

novelty thereof. In that day the rulers were unable to rec-

ognize literature as a necessary, basic part of the funda-

mental freedoms of the people. The ghost phrase that ‘per-

sonal property is not exempt from taxation’ has been used

to obscure the real vice of the taxes imposed against free-

dom of press and worship in this case.

The mere fact that literature is personal property does

not withdraw it from the protecting shield of the Bill of

Rights. The broad and general terms of the Bill of Rights,

protecting freedom of speech, press and worship, are flexi-

ble. They protect any device which is necessary and directly

used in order to properly exercise the rights guaranteed in

the fundamental compact.

The prohibition against abridgment by taxation of the

rights of freedom of speech, freedom of press and freedom

of worship is not limited to privilege taxes and license taxes.

It extends to all kinds of taxes that directly burden the ex-

ercise of the right when imposed. “No one could doubt that

taxation which may be freely laid upon activities not within

the protection of the Bill of Rights could—when applied to

the dissemination of ideas—be made the ready instrument

for destruction of that right... .

“The First Amendment is not confined to safeguarding

freedom of speech and freedom of religion against discrim-

OSEAN EAR ERE AN LD COUN LORE PTR RT ICY IRL, STARE IE Ae eR f,

14

inatory attempts to wipe them out. On the contrary the Con-

stitution, by virtue of the First and Fourteenth Amend-

ments, has put those freedoms in a preferred position. Their

commands are not restricted to cases where the protected

privilege is sought out for attack. They extend at least to

every form of taxation which, because it is a condition of

the exercise of the privilege, is capable of being used to con-

trol or suppress it....

“,.. The First Amendment prohibits all laws abridging

freedom of press and religion, not merely some laws or all

except tax laws. It is true that the constitutional guaranties

of freedom of press and religion, like the commerce clause,

make no distinction between fixed-sum taxes and other kinds.

But that fact affords no excuse to courts, whose duty it is

to enforce those guaranties, to close their eyes to the char-

acteristics of a tax which render it destructive of freedom

of press and religion.” Jones v. Opelika, 316 U.S. 584, 608,

609-610, Mr. Chief Justice Stone, dissenting. This dissent-

ing opinion was made the basis of the decision vacating the

judgment resulting from the majority opinion and ordering

the judgment of the state courts reversed. Jones v. Opelika,

319 U.S. 103, 104.

The appeilation of the Supreme Court of California,

in Watchtower Bible and Tract Society, Inc. v. County of

Los Angeles, 30 Cal. 2d 426, 182 P. 2d 178, followed by the

court below, that the literature is mere “property” should

not blind this Court and cause it not to see the real issue

presented here. It is restraint and abridgment of the free-

dom that is prohibited by the First Amendment irrespec-

tive of the name that may be given the thing that claims

the protection or the characterization placed upon the in-

strument of worship. “The Constitution deals with sub-

stance, not shadows. Its inhibition was levelled at the thing,

not the name.” Cummings v. Missouri, 4 Wall. 277, 325.

In Associated Press v. N. L. R. B., 301 U.S. 103, 132, it

is said that “The publisher of a newspaper .. . like others

|

15

... must pay equitable and non-discriminatory taxes on his

business.” The courts of the state of California and the

court belex simulated the circumstances in the instant case

to the facts in the case of Giragi v. Moore, 301 U. S. 670, and

Arizona Publishing Co. v. O’Neil, 304 U.S. 543. The deci-

sions in both those cases are not in point and do not sustain

the decision of the California Supreme Court or the court

below. However, in event it is found that the decisions in

the Giragi and Arizona Publishing Company cases are ap-

plicable, then petitioner says that this Court should and

may reconsider and clarify the effect of its decision in

Giragi v. Moore.

In that case the State of Arizona levied a tax of one per

cent upon the gross receipts of various businesses in the

state, including the newspaper publishing business, and re-

quired every person engaged in a business subject to such

tax to obtain a license or else suffer fines and penalties.

An examination of the record in the Giragi case will show

that the contention that the tax there involved was in viola-

tion of the Fourteenth Amendment was first raised on mo-

tion for rehearing before the Supreme Court of Arizona.

Until that motion for rehearing no federal question had

been raised. Consequently, when the record came before the

Court on appeal, it was deficient in failing adequately to

show in what respects the tax constituted a restraint upon

the press.

This Court therefore dismissed the appeal in a per cu-

riam decision for want of a substantial federal question.

Giragt v. Moore, 301 U.S. 670. But the matter was disposed

of on a jurisdictional statement only and the per curiam

decision was not accompanied by an opinion explaining the

relation of Grosjean v. American Press Co., 297 U.S. 233,

and Associated Press v. N. L. R. B., 301 U.S. 103, to the

issue involved. Petitioner believes, therefore, that the true

character and effect of a tax such as that in the Giragi case

has never been fully considered by the Court.

FLW TERRIA SO LO NNT MRE DELLE KWH TE NADER NINO NEY TNR

16

Nor was the true character and effect of the tax fully

considered in Arizona Publishing Co. v. O'Neil, 304 U.S.

543, where this Court on appeal affirmed the judgment of

the District Court of the United States for the District of

Arizona upholding the same tax statute as in the Giragi

case. This case was also decided on the jurisdictional state-

ment and in a per curiam decision which needs clarifica-

tion.

Since the Giragi and Arizona Publishing Company de-

cisions this Court made it plain in Lovell v. Griffin, 303 U. 8.

444, that the First Amendment safeguards liberty of cir-

culation as well as liberty of publication. Petitioner be-

lieves that in the light of the Lovell and subsequent cases

the statute in the Arizona cases was as clear a violation of

the freedom of the press as is the tax in the present case.

Those engaged in “press activity”, such as the news-

papers and other publishers, are not exempt from ordinary

forms of taxation. They are required to pay various types

of taxes, federal and state, including net income taxes, cap-

ital stock taxes, social security taxes, corporate franchise

taxes, real and unemployment compensation taxes. All these

are the ordinary forms of taxation. But because the public

press can be required to pay ordinary forms of taxation,

one could not successfully contend that such newspapers

and publishers could be required to pay a tax upon the dis-

tribution of their literature or the printing thereof.

Storage of the literature in question while en route from

headquarters of petitioner to its missionary evangelists in

various parts of California is a necessary step in the process

of preaching the gospel of God’s kingdom. The message as

preached by Jehovah’s witnesses may be likened unto a

flowing stream of ideas conveyed in words on printed pages

issuing constantly from presses of petitioner, and which

flows to people of good-will who desire to receive the litera-

ture in millions of homes of the nation, including California.

The taxing of any step in the provess of printing, pub-

ARERR AER OE WS BER TENSEI LETTE NN PN CLIT LI LO ATTRA IR INE ENE I LCN NINE —

17

lishing and distributing literature is an unconstitutional

abridgment of freedom of the press. Grosjean v. American

Press Co., 297 U.S. 233, 250; Murdock v. Pennsylvania, 319

U.S. 105; Follett v. McCormick, 321 U.S. 573; Vermont v.

Greaves, 112 Vt. 222, 22 A. 2d 497; McConkey v. Fredericks-

burg, 179 Va. 556, 19 S. E. 2d 682.

Freedom of the press is not confined to the mere printing

of literature. It embraces also circulation. “Liberty of cir-

culating is as essential to that freedom as liberty of pub-

lishing; indeed, without the circulation, the publication

would be of little value.” Ex parte Jackson, 96 U. S. 727, 733;

see also Lovell v. Griffin, 303 U.S. 444, 452.

Storage of the literature at the Lynwood depot by peti-

tioner is as much as any other act a part of the process of

circulation. It is as much a part of the circulation process

as is the handing of a piece of literature by one of the mis-

sionary evangelists to a person as the evangelist moves

from door to door in his assigned territory. Without a place

to store literature the liberty of printing and distributing

it would be of little, if any, value. The distributor of litera-

ture cannot carry with him on his person all of the literature

which he uses in his preaching business. Of necessity he

must keep an operating reserve in large quantities at some

place, to be drawn upon from time to time in his process of

distributing literature from door to door.

Undoubtedly the imposition of a tax against the storage

of literature by the individual missionary evangelist would

be an unlawful abridgment of freedom of speech, press and

worship, contrary to the named constitutions. Certainly a

state could not tax the literature reserve that a missionary

evangelist might keep in his automobile used by him in the

servicing of his missionary field. The state could not tax

the literature which a missionary evangelist might have

stored at his home or in his garage or in a private storage

place rented by him.

Since the state concededly cannot tax the literature

Boats ice

18

stored by the individual missionary evangelist, then a for-

tiort, the state cannot lawfully tax the literature stored by

two or more missionary evangelists working together and

jointly. If the state cannot tax the stored literature of one

evangelist, or of two, three or more missionary evangelists

operating jointly, then, by force of the same reason, the

state cannot lawfully impose a tax upon literature stored by

a society of missionary evangelists, which literature is com-

monly used by the large group or society of missionary

evangelists in their joint action of preaching.

Storage of literature at the Lynwood depot by peti-

tioner is a mere convenience, essential to effective distribu-

tion of the literature. It is true that the literature could be

shipped directly from the society’s headquarters at New

York to the individual missionary evangelists in their re-

spective territories. However, that is not necessary because

it imposes upon the society an unnecessary financial burden.

It makes more costly, hence burdensome, the distribution of

the literature by the missionary evangelists.

Storage of literature for redistribution to evangelists

for final delivery to the people of California is as necessary

a step in the process of petitioner’s publishing as is the

stevedoring step in the process of shipping in foreign com-

merce. Accordingly it shovld have the same exemption from

taxation.

The entire flowing stream of publication must be kept

open, pursuant to the mandate of the Bill of Rights and

the Constitution of the United States. The protecting shield

of the Bill of Rights in the Constitution extends from that

stream’s source to its termination, which is the delivery of

the literature to the millions of recipients thereof through-

out the nation, including California. The Bill of Rights in

the Constitution forbids the state’s erecting a dam or barrier

at any point along the flowing stream of publication, which

begins with printing and ends with delivery of such litera-

19

ture to persons of good-will at their homes or publicly upon

the streets of the nation.

Publication, as a stream aflow, is kept alive by the con-

tinuing and uninterrupted gliding of literature from the

printing presses to the people. If at any point the stream

is dammed, it will stagnate, resulting in disease and death

to the vital freedom as well as to those entitled to enjoy it.

Certainly none would have the audacity to argue that

the storage of literature is not a part of the process of pub-

lishing. Can any say that the storage of literature is not

a step or vital essential of the publishing process viewed as

a whole and which, streamlike, must course smoothly and

continuously from the printing presses to the people? The

people cannot be required to stand at the printing press.

Liberty of press does not end at the printing press. The

people have the right to receive the literature at their homes

and upon the streets of the nation. How can they receive it

if they cannot have someone to deliver it to them? How can

the deliverer of the literature effectively distribute it un-

less he has an abundance of literature to distribute? How

can he have an abundance of literature to distribute unless

he has a place to store it?

The mere uttering of all these questions against the

sounding-board of reason reverberates the answer that

storage of literature is a vitally essential part of the proc-

ess of circulation of literature. Since circulation cannot be

burdened by taxation, no part of the process of circulation

can be impeded or stagnated by taxation.

In an analagous situation of commerce, this Court has

held that the business of stevedoring, loading and unloading

ships was such a vitally 1iecessary step in the process of

foreign trade that it could not be taxed by the state. J oseph

v. Carter & Weekes Stevedoring Company, 330 U.S. 422,

426, 427-428. In that case the Court said: “The movement

of cargo off and on the ship is substantially a continu-

ation of the transportation. ... The transportation in com-

20

merce, at the least, begins with loading and ends with un-

loading. Loading and unloading has effect on transporta-

tion outside the taxing state because those activities are

not only preliminary to but are an essential part of the

safety and convenience of the transportation itself.”

Also reference is made to the dissent of Mr. Justice

Douglas in that case at 330 U.S. 445. There he said: “Load-

ing and unloading are a part of ‘the exporting process’ which

the Import-Export Clause protects from state taxation. See

Thames & Mersey Ins. Co. v. United States, 237 U.S. 19, 27.

Activity which is a ‘step in exportation’ has that immunity.

... And the gross receipts tax is an impost on an export

within the meaning of the Clause, since the incident ‘which

gave rise to the accrual of the tax was a step in the export

process.’ Richfield Oil Corp. v. State Board, supra. [329

U.S: 69)”

There is no analogy between the long line of decisions

which approve the imposition of taxes upon rolling stock

of railroads and airplanes of air lines engaged in inter-

state commerce and the imposition of a tax against the

property in this case. These vehicles of transportation

are clearly subject to taxation. Certainly petitioner does not

argue that the automobiles used by its missionary evange-

lists are exempt from the ad valorem property tax of Cali-

fornia or the payment of automobile license tax fee required

in the registration of automobiles.

The literature used in preaching the gospel of God’s

kingdom by Jehovah’s witnesses is protected from taxation

by the First Amendment. The automobile is not. It is not

necessary. The literature is necessary. It is the article that

gives life to the press activity protected by the Bill of Rights.

It is a product and result of freedom of the press.

Certainly, it would be conceded that goods shipped in

commerce are free from taxes while in transit over interstate

commerce lines. The literature protecied by the Bill of

pet uh F

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REAR He RMS APS HE ERI OREN MIS BRET LLY EOE ee ad Ti MED re ES

21

Rights against taxation is as free from the ad valorem taxes

as are goods in interstate transit.

The principle announced in the case of Nippert v.

City of Richmond, 327 U.S. 416, applies here rather than

the principle of the rolling stock cases. In that case Mr.

Justice Rutledge said: “If the only thing necessary to

sustain a state tax bearing upon interstate commerce

were to discover some local incident which might be re-

garded as separate and distinct from ‘the transporta-

tion or intercourse which is’ the commerce itself and then

to lay the tax on that incident, all interstate commerce could

be subject to state taxation and without regard to the sub-

stantial economic effects of the tax upon the commerce. For

the situation is difficult to think of in which some incident

of an interstate transaction taking place within a state could

not be segregated by an act of mental gymnastics and made

the fulcrum of the tax. All interstate commerce takes place

within the confines of the states and necessarily involves

‘incidents’ occurring within each state through which it

passes or with which it is connected in fact. And there is no

known limit to the human mind’s capacity to carve out from

what is an entire or integral economic process particular

_phases or incidents, label them as ‘separate and distinct’ or

‘local’, and thus achieve its desired result. ...

“It is no answer, as appellee contends, that the tax is

neither prohibitive nor discriminatory on the face of the

ordinance; or that it applies to all local distributors doing

business as appellant has done. Not the tax in a vacuum of

words, but its practical consequences for the doing of inter-

state commerce in applications to concrete facts are our

concern. ...

“,.. With the forces behind it, this is the very kind of

barrier the commerce clause was put in the fundamental

law to guard against... .

“The drummer is a figure representative of a by-gone day.

But his modern prototype persists under more euphonious

wean his EONS PSL ELE ERR Ud

22

appellations. So endure the basic reasons which brought

about his protection from the kind of local favoritism the

facts of this case typify.” Nippert v. City of Richmond, 327

U.S. 416, 423, 431, 434, 435.

Taxation of literature is as much an abridgment of free-

dcm of press and worship as is prohibition or censorship.

Murdock v. Pennsylvania, 319 U.S. 105. All forms of bur-

dens which may be used as instruments of destruction or as

impediments to the free exercise of civil liberties by the

people were contemplated by the authors of the First

Amendment as within the ambit of the Amendment.

Every school child knows that the forefathers fought

valiantly until they cast off and out from this land taxation

of freedom as the favorite yoke of oppression. That method

of abuse and prohibition of the freedom of the press was

without question of doubt more clear in the minds of the

framers of the First Amendment than any other sort of

encroachment.

“The exigencies of the colonial period and the efforts to

secure freedom from oppressive administration developed

a broadened conception of these liberties as adequate to

supply the public need for information and education with

respect to the significant issues of the times.” Murphy, J.,

in Thornhill v. Alabama, 310 U.S. 88. See, also, Duniway,

The Development of Freedom of the Press in Massachu-

setts, p. 123 et seq.; Tyler, Literary History of the American

Revolution; 2 Bancroft, History of the United States, p.

261; Schofield, Freedom of the Press in the United States

(1914), 9 Proc. Am. Social, Sec. 67, 76, 80.

At the time of the American Revolution that was the

favorite and best known means of oppression. For historical

discussion of these oppressive taxes, see Grosjean v. Amert-

can Press Co., 297 U.S. 233; Near v. Minnesota, 283 U.S.

. 697, 707-716. See, also, W. G. Bleyer, The History of Amerv

can Journalism, 1927 ed., 1129; G. J. Patterson, Free Speech

and a Free Press, 1939 ed.; W. M. Clyde, The Struggle for

23

the Freedom of the Press from Caxton to Cromwell, 1934

ed.; C. D. Collet, History of Taxes on Knowledge, 1899 ed.;

Ford, Pamphlets on the Constitution of the United States,

1787-1788, pp. 113, 156-157, 316 (1888); Pennsylvania and

the Federal Constitution (McMaster and Stone, Eds.), pp.

180, 181, 576 ff. (1888); Stevens, Sources of the Constitu-

tion of the United States, pp. 213, 218, 221 (1894) ; Stewart,

Lennox and the Taxes on Knowledge, 15 Scottish Hist. Rev.

322, 326.

The term “abridge” as used from the First Amendment

means “to shorten, curtail or reduce” and comes from the

same root word as “abbreviate”. It does not mean “destroy,

forbid, prohibit, prevent.”

It cannot be contended that the tax here is not an

“abridgment” of civil liberties within the prohibition of the

First Amendment. The tax is more pernicious than even the

ancient stamp tax because it is an arbitrary tax providing

for an amount which must be paid for keeping in one’s pos-

session literature, and does not depend upon income or

profit of the individual. It does not make allowance for those

engaged in charitable activity where most of the items are

delivered free of charge. No provision is made for any re-

duction in amount of tax on account of the number of pieces

given away free of charge. The tax is therefore the worst

kind of burden or abridgment.

In McCulloch v. Maryland, 4 Wheat. 316 (1819), it is

said: “The power to tax is the power to destroy.” That de-

struction is a grim and appalling reality in the instant case.

This entire question of whether the tax is an unconstitu-

tional “abridgment” of the rights guaranteed by the Bill of

Rights can be disposed of on that single, lone milestone of

constitutional law and judicial history.

24

The universal rule of the courts is that when a tax is

found to be proper and constitutional upon a given activity

such tax cannot be attacked as a “substantial clog” or ex-

cessive. Once it is decided that a tax can be imposed upon

the right to print, publish, store, circulate or distribute

printed matter or to preach the gospel as did Christ Jesus

and His apostles, then there is no limit to this power of taxa-

tion and complete control, suppression, anc prohibition. De-

struction of the four freedoms can readily result.

The courts have repeatedly pointed out that when a

subject matter is brought under the taxing power of the

federal, state or municipal government, the amount—regard-

less of how destructive or prohibitive it may be—cannot be

questioned by the judiciary. There is no limit to its exercise

within the discretion of the government, state or city. The

oppressiveness of the burden cannot interdict the taxation.

Magnano Co. v. Hamilton, 292 U.S. 40; Stewart Dry Goods

Co. v. Lewis, 294 U.S. 550.

In Veazie Bank v. Fenno, 8 Wall. 533, 548, the validity

of an increase in the tax on the circulating notes of persons

and state banks was questioned. The Court refused to con-

sider the question of whether the increase was excessive

and said: “The first answer to this is that the judiciary can-

not prescribe to the legislative departments of the govern-

ment limitations upon its acknowledged powers. The power

to tax may be exercised oppressively upon persons, but the

responsibility of the legislature is not to the courts, but to

the people by whom its members are elected. So if a partic-

ular tax bears heavily upon a corporation or a class of cor-

porations, it cannot, for that reason only, be pronounced

contrary to the Constitution.” See also Bailey v. Drexel

(“Child Labor Tax Case”), 259 U.S. 20,41; McCray v.

United States, 195 U.S. 27; Spencer v. Merchant, 125 U.S.

345; Flint v. Stone Tracy Co., 220 U.S. 107.

20

IV

The decisions below fail to give proper effect to the de-

cisions of this Court in McCollum v. Board of Education,

333 U.S. 203 and Everson v. Board of Education, 330 U.S.

1, The court below misinterpreted the holdings of this

Court in these two cases. The court below held that the

effect of these decisions was to preclude the court below

from allowing petitioner, a religious corporation, to use

the shield of the First Amendment which protects freedom

of religion against abridgment on the ground that to de-

clare the tax invalid would amount to a state subsidy to

“religious groups to spread their faith,” which is put “‘un-

der the ban of the First Amendment (made applicable to the

States by the Fourteenth Amendment) as we interpreted

it in Everson v. Board of Education, 330 U.S. 1, 15, 16.”

(74)

The holding of the court below in this respect is out of

harmony with the holding of this Court in Murdock v. Penn-

sylvania, 319 U.S. 105, and Follett v. Town of McCormick,

321 U.S. 573. In those cases freedom of religion was relied

upon to declare the tax invalid. The tax in those eases was

not a discriminatory tax. In fact in those cases the Court

found that the taxes were uniform and applicable to all

alike.

If the shield of the First Amendment is to be with-

drawn from a religious organization when ad valorem

taxes are involved then by force of the same reason the

same shield must be withdrawn when license taxes are

attacked.

Surely this Court did not ignore history and disregard

the intent of the framers of the First Amendment when it

held that Jehovah’s witnesses were entitled to the protec-

tion of the freedom of religion clause in the First Amend-

ment against taxes in the Murdock and Follett cases. If

the First Amendment is available to protect a religious

organization against license taxes, a fortiori it is available

— ;

m eet a NERS a SE Bel EES ee

—_ a ee sme a a ei af RN MLTR RLS PETA SLOT TG eek .

26

to protect a religious organization against unlawful ad va-

lorem taxes assessed unconstitutionally against literature

used as a necessary part of preaching the good news of

God’s kingdom as the only hope for mankind.

The wall of separation of church and state certainly

does not extend so far as to deny a religious organization

the right to use the First Amendment when taxes are in-

volved. Certainly the framers of the First Amendment did

not mean to say, as the court below held, that religious or-

ganizations are protected under the First Amendment

against all sorts of abridgments save and except taxation.

If protection of religious organizations against abridgment

by taxation was not intended by the framers, they would

have written into the First Amendment that religious or-

ganizations are free from all burdens and abridgments in

the exercise of their religious freedom save and except

taxation. Since this proviso was not written into the First

Amendment we must assume that all types of abridgments,

taxation included, were and are forbidden by the First

Amendment.

The discordant doctrine that the First Amendment does

not protect a religious organization against abridgment

by taxation of the exercise of liberties guaranteed by the

First Amendment alone ought to be sufficient to lead this

Court to grant certiorari and review the case. The same

reasons that led the Court to review McCollum vy. Board of

Education, 333 U.S. 203, and Everson v. Board of Educa-

tion, 330 U.S. 1, should persuade this Court to grant re-

view here. Certainly the petitioner ought not to be required

to submit to the payment of the taxes impinging, as they

do, the rights guaranteed by the First Amendment, until

this Court has reviewed the case and decided the questions

presented here.

CONCLUSION

For the reasons above this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

Haypven C. Covineton

124 Columbia Heights

Brooklyn 2, New York

Counsel for Petitioner

Dated, June 24, 1950

; speenneumens

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