In view of
Jones v. Opelika, 319 U.
S. 103, and
Murdock v. Pennsylvania,
319 U. S. 105, the
judgment in this case is vacated and the cause is remanded in order
that the court below may reexamine the questions whether § 47-2336
of the District of Columbia Code (1940), which forbids unlicensed
sales upon the public streets, or from public space, should be
construed as applicable to the facts of this ease, and whether, if
applicable, it is constitutional. P.
319 U. S.
580.
75 U.S.App.D.C. 352 vacated.
Certiorari,
post, p. 735, to review the affirmance (129
F.2d 24) of a judgment of the Police Court of the District of
Columbia.
Page 319 U. S. 580
PER CURIAM.
In this case, petitioners, who are Jehovah's Witnesses, were
convicted of selling on the streets of the District of Columbia,
magazines which expound their religious views, without first
procuring the license and paying the license tax required by §
47-2336 of the District of Columbia Code (1940). In affirming the
conviction, the Court of Appeals for the District of Columbia below
had two questions before it: whether the statute was applicable to
petitioners, and, if so, whether its application as to them
infringed the First Amendment. The court construed the statute as
applicable, and sustained its constitutionality (75 U.S.App.D.C.
352, 129 F.2d 24), following the decision in
Cole v. City of
Fort Smith, 202 Ark. 614, 151 S.W.2d 1000, the judgment in
which was affirmed by this Court in
Bowden v. Fort Smith,
316 U. S. 584, one
of the cases argued together with
Jones v. Opelika,
316 U. S. 584.
Since the decision below, and after hearing reargument in the
Opelika case, we have vacated our earlier judgment and
held the license tax imposed in that case to be unconstitutional.
Jones v. Opelika, 319 U. S. 103;
Murdock v. Pennsylvania, 319 U. S. 105.
Petitioners urge us to construe the District of Columbia statute as
inapplicable in order to avoid the constitutional infirmity which
might otherwise exist -- an infirmity conceded by respondent on the
oral argument before us. In view of our decisions in the
Opelika and
Murdock cases, we vacate the judgment
in this case and remand the cause to the Court of Appeals for the
District of Columbia to enable it to reexamine its rulings on the
construction and validity of the District ordinance in the light of
those decisions.
Cf. New York ex rel. Whitman v. Wilson,
318 U. S. 688, and
cases cited.
So ordered.
MR. JUSTICE RUTLEDGE took no part in the consideration or
decision of this case.