A city ordinance made it an offense to "solicit" citizens of the
City to become members of any "organization, union or society"
which requires fees or dues from its members without first applying
for and receiving from the Mayor and Council a "permit," which they
might grant or refuse after considering the character of the
applicant, the nature of the organization and its effects upon the
general welfare of the citizens. For soliciting applications for
membership in a labor union in the private homes of employees
without applying for or obtaining such a permit, appellant was
convicted of a violation of this ordinance and sentenced to fine or
imprisonment, notwithstanding her claim that the ordinance violated
her rights under the Federal Constitution. The State Court of
Appeals affirmed. It declined to pass on appellant's contention, on
the grounds that (1) appellant lacked standing to attack the
constitutionality of the ordinance because she had made no attempt
to obtain a permit under it, and (2) under state procedure, her
attack should have been made against specific sections of the
ordinance, and not against the ordinance as a whole.
Held:
1. The decision of the State Court of Appeals does not rest on
an adequate nonfederal ground, and this Court has jurisdiction of
this appeal. Pp.
355 U. S.
318-320.
(a) Failure to apply for a license under an ordinance which on
its face violates the Constitution does not preclude review in this
Court of a judgment of conviction under such an ordinance. P.
355 U. S.
319.
(b) In the circumstances of this case, appellant's failure to
attack specific sections of the ordinance, in accordance with state
procedure, is not an adequate nonfederal ground of decision. Pp.
355 U. S.
319-320.
2. The ordinance is invalid on its face because it makes
enjoyment of the constitutionally guaranteed freedom of speech
contingent upon the will of the Mayor and Council, and thereby
constitutes a prior restraint upon, and abridges, that freedom,
contrary to the Fourteenth Amendment. Pp.
355 U. S.
321-325.
94 Ga. App. 18,
93 S.E.2d
375, reversed.
Page 355 U. S. 314
MR. JUSTICE WHITTAKER delivered the opinion of the Court.
Appellant, Rose Staub, was convicted in the Mayor's Court of the
City of Baxley, Georgia, of violation of a city ordinance and was
sentenced to imprisonment for 30 days or to pay a fine of $300. The
Superior Court of the county affirmed the judgment of conviction;
the Court of Appeals of the State affirmed the judgment of the
Superior Court, 94 Ga.App. 18,
93 S.E.2d
375, and the Supreme Court of the State denied an application
for certiorari. The case comes here on appeal.
The ordinance in question is set forth in the margin. [
Footnote 1] Its violation, which is not
denied, arose from the following
Page 355 U. S. 315
undisputed facts shown at the trial: appellant was a salaried
employee of the International Ladies' Garment Workers Union, which
was attempting to organize the employees of a manufacturing company
located in the nearby town of Hazelhurst. A number of those
employees lived in Bazley. On February 19, 1954, appellant and one
Mamie Merritt, also a salaried employee of the union, went to
Baxley and, without applying for permits required under the
ordinance, talked with several of the employees at their homes
about joining the union. While in a restaurant in Baxley on that
day, they were sought out and questioned by the Chief of Police
concerning their activities in Baxley, and appellant told him that
they were "going around talking to some of the women to organize
the factory workers . . . and hold[ing] meetings with them for that
purpose." Later
Page 355 U. S. 316
that day, a meeting was held at the home of one of the
employees, attended by three other employees, at which, in the
words of the hostess, appellant
"just told us they wanted us to join the union, and said it
would be a good thing for us to do . . . and went on to tell us how
this union would help us."
Appellant told those present that the membership dues would be
64 cents per week, but would not be payable until the employees
were organized. No money was asked or received from the persons at
the meeting, but they were invited "to get other girls . . . there
to join the union" and blank membership cards were offered for that
use. Appellant further explained that the immediate objective was
to "have enough cards signed to petition for an election . . . with
the Labor Board." [
Footnote
2]
On the same day, a summons was issued and served by the Chief of
Police commanding appellant to appear
Page 355 U. S. 317
before the Mayor's Court three days later to answer "to the
offense of Soliciting Members for an Organization without a Permit
& License."
Before the trial, appellant moved to abate the action upon a
number of grounds, among which were the contentions that the
ordinance
"shows on its face that it is repugnant to and violative of the
1st and 14th Amendments to the Constitution of the United States in
that it places a condition precedent upon, and otherwise unlawfully
restricts, the defendant's freedom of speech as well as freedom of
the press and freedom of lawful assembly"
by requiring, as conditions precedent to the exercise of those
rights, the issuance of a "license" which the Mayor and city
council are authorized by the ordinance to grant or refuse in their
discretion, and the payment of a "license fee" which is
discriminatory and unreasonable in amount and constitutes a
prohibitory flat tax upon the privilege of soliciting persons to
join a labor union. These contentions were overruled by the Mayor's
Court and, after a continuance, [
Footnote 3] the case was tried and appellant was convicted
and sentenced as stated. [
Footnote
4] The same contentions were made in the Superior Court, where
the city answered, denying "that the ordinance is invalid or void
for any of the reasons stated" by appellant, and, after a hearing,
that court affirmed the judgment of conviction.
Page 355 U. S. 318
Those contentions were renewed in the Court of Appeals, but that
court declined to consider them. It stated that "[t]he attack
should have been made against specific sections of the ordinance,
and not against the ordinance as a whole"; that, "[h]aving made no
effort to secure a license, the defendant is in no position to
claim that any section of the ordinance is invalid or
unconstitutional"; and that, since it
"appears that the attack was not made against any particular
section of the ordinance as being void or unconstitutional, and
that the defendant has made no effort to comply with any section of
the ordinance . . . , it is not necessary to pass upon the
sufficiency of the evidence, the constitutionality of the
ordinance, or any other phase of the case. . . ."
The court then held that "[t]he trial court did not err in
overruling the writ of certiorari," and affirmed the judgment of
conviction. 94 Ga.App. at 24, 93 S.E.2d at 378-379.
At the threshold, appellee urges that this appeal be dismissed
because, it argues, the decision of the Court of Appeals was based
upon state procedural grounds, and thus rests upon an
adequate nonfederal basis, and that we are therefore
without jurisdiction to entertain it. Hence, the question is
whether that basis was an adequate one in the circumstances of this
case.
"Whether a pleading sets up a sufficient right of action or
defense, grounded on the Constitution or a law of the United
States, is necessarily a question of federal law, and, where a case
coming from a state court presents that question, this court must
determine for itself the sufficiency of the allegations displaying
the right or defense, and is not concluded by the view taken of
them by the state court."
First National Bank v. Anderson, 269 U.
S. 341,
269 U. S. 346,
and cases cited.
See also Schuylkill Trust Co. v.
Pennsylvania, 296 U. S. 113,
296 U. S.
122-123; and
Lovell v. Griffin, 303 U.
S. 444,
303 U. S. 450.
As Mr. Justice Holmes said in
Davis v. Wechsler,
263 U. S. 22,
263 U. S.
24,
"Whatever springes the State may set
Page 355 U. S. 319
for those who are endeavoring to assert rights that the State
confers, the assertion of Federal rights, when plainly and
reasonably made, is not to be defeated under the name of local
practice."
Whether the constitutional rights asserted by the appellant
were
. . . given due recognition, by the [Court of Appeals] is a
question as to which the [appellant is] entitled to invoke our
judgment, and this [she has] done in the appropriate way. It
therefore is within our province to inquire not only whether the
right was denied in express terms, but also whether it was denied
in substance and effect, as by putting forward non-federal grounds
of decision that were without any fair or substantial support . . .
[for] if non-federal grounds, plainly untenable, may be thus put
forward successfully, our power to review easily may be
avoided.
Ward v. Love County, 253 U. S. 17,
253 U. S. 22,
and cases cited.
The first of the nonfederal grounds relied on by appellee, and
upon which the decision of the Court of Appeals rests, is that
appellant lacked standing to attack the constitutionality of the
ordinance because she made no attempt to secure a permit under it.
This is not an adequate nonfederal ground of decision. The
decisions of this Court have uniformly held that the failure to
apply for a license under an ordinance which, on its face, violates
the Constitution does not preclude review in this Court of a
judgment of conviction under such an ordinance.
Smith v.
Cahoon, 283 U. S. 553,
283 U. S. 562;
Lovell v. Griffin, 303 U. S. 444,
303 U. S.
452.
"The Constitution can hardly be thought to deny to one subjected
to the restraints of such an ordinance the right to attack its
constitutionality, because he has not yielded to its demands."
Jones v. Opelika, 316 U. S. 584,
316 U. S. 602,
dissenting opinion adopted per curiam on rehearing,
319 U. S. 319 U.S.
103,
319 U. S.
104.
Appellee also contends that the holding of the Court of Appeals,
that appellant's failure to attack "specific sections" of the
ordinance rendered it unnecessary, under
Page 355 U. S. 320
Georgia procedure, "to pass upon . . . the constitutionality of
the ordinance, or any other phase of the case . . . " constitutes
an adequate "nonfederal ground" to preclude review in this Court.
We think this contention is "without any fair or substantial
support" (
Ward v. Love County, supra), and therefore does
not present an adequate nonfederal ground of decision in the
circumstances of this case. The several sections of the ordinance
are interdependent in their application to one in appellant's
position, and constitute but one complete act for the licensing and
taxing of her described activities. For that reason, no doubt, she
challenged the constitutionality of the whole ordinance, and, in
her objections, used language challenging the constitutional effect
of all its sections. She did, thus, challenge all sections of the
ordinance, though not by number. To require her, in these
circumstances, to count off, one by one, the several sections of
the ordinance would be to force resort to an arid ritual of
meaningless form. Indeed, the Supreme Court of Georgia seems to
have recognized the arbitrariness of such exaltation of form. Only
four years ago, that court recognized that an attack on such a
statute was sufficient if "the [statute] so challenged was invalid
in every part for some reason alleged."
Flynn v. State,
209 Ga. 519, 522,
74 S.E.2d 461,
464 (1953). In enunciating that rule, the court was following a
long line of its own decisions.
Atlantic Loan Co. v.
Peterson, 181 Ga. 266, 269, 182 S.E. 15, 16-17 (1935);
Miller v. Head, 186 Ga. 694, 708, 198 S.E. 680,
687-688(1938);
Stegall v. Southwest Georgia Regional Housing
Authority, 197 Ga. 571, 30 S.E.2d 196 (1944);
Krasner v.
Rutledge, 204 Ga. 380, 383, 49 S.E.2d 864, 866 (1948).
We conclude that the decision of the Court of Appeals does not
rest on an adequate nonfederal ground, and that we have
jurisdiction of this appeal.
Page 355 U. S. 321
The First Amendment of the Constitution provides: "Congress
shall make no law . . . abridging the freedom of speech. . . ."
This freedom is among the fundamental personal rights and liberties
which are protected by the Fourteenth Amendment from invasion by
state action, and municipal ordinances adopted under state
authority constitute state action.
Lovell v. Griffin,
supra, at
303 U. S.
450.
This ordinance, in its broad sweep, makes it an offense to
"solicit" citizens of the City of Baxley to become members of any
"organization, union or society" which requires "fees [or] dues"
from its members without first applying for and receiving from the
Mayor and Council of the City a "permit" (Sections I and II) which
they may grant or refuse to grant (Section V) after considering
"the character of the applicant, the nature of the . . .
organization for which members are desired to be solicited, and its
effects upon the general welfare of [the] citizens of the City of
Baxley."
(Section IV)
Appellant's first contention in this Court is that the ordinance
is invalid on its face because it makes enjoyment of the
constitutionally guaranteed freedom of speech contingent upon the
will of the Mayor and Council of the City, and thereby constitutes
a prior restraint upon, and abridges, that freedom. Believing that
appellant is right in that contention and that the judgment must be
reversed for that reason, we confine our considerations to that
particular question and do not reach other questions presented.
It will be noted that appellant was not accused of any act
against the peace, good order or dignity of the community, nor for
any particular thing she said in soliciting employees of the
manufacturing company to join the union. She was simply charged and
convicted for "soliciting members for an organization without a
Permit."
Page 355 U. S. 322
This solicitation, as shown by the evidence, consisted solely of
speaking to those employees in their private homes about joining
the union. [
Footnote 5]
It will also be noted that the permit is not to be issued as a
matter of course, but only upon the affirmative action of the Mayor
and Council of the City. They are expressly authorized to refuse to
grant the permit if they do not approve of the applicant or of the
union or of the union's "effects upon the general welfare of
citizens of the City of Baxley." These criteria are without
semblance of definitive standards or other controlling guides
governing the action of the Mayor and Council in granting or
withholding a permit.
Cf. Niemotko v. Maryland,
340 U. S. 268,
340 U. S.
271-273. It is thus plain that they act in this respect
in their uncontrolled discretion.
It is settled by a long line of recent decisions of this Court
that an ordinance which, like this one, makes the peaceful
enjoyment of freedoms which the Constitution guarantees contingent
upon the uncontrolled will of an official -- as by requiring a
permit or license which may be granted or withheld in the
discretion of such official -- is an unconstitutional censorship or
prior restraint upon the enjoyment of those freedoms.
In
Cantwell v. Connecticut, 310 U.
S. 296, this Court held invalid an Act which proscribed
soliciting money or any valuable thing for "any alleged religious,
charitable or philanthropic cause" unless the "cause" is approved
by the secretary of the public welfare council of the state.
Speaking for a unanimous Court, Mr. Justice Roberts said:
"It will be noted, however, that the Act requires an application
to the secretary of the public welfare
Page 355 U. S. 323
council of the State; that he is empowered to determine whether
the cause is a religious one, and that the issue of a certificate
depends upon his affirmative action. If he finds that the cause is
not that of religion, to solicit for it becomes a crime. He is not
to issue a certificate as a matter of course. His decision to issue
or refuse it involves appraisal of facts, the exercise of judgment,
and the formation of an opinion. He is authorized to withhold his
approval if he determines that the cause is not a religious one.
Such a censorship of religion . . . is a denial of liberty
protected by the First Amendment and included in the liberty which
is within the protection of the Fourteenth. . . . [T]o condition
the solicitation of aid for the perpetuation of religious views or
systems upon a license, the grant of which rests in the exercise of
a determination by state authority as to what is a religious cause,
is to lay a forbidden burden upon the exercise of liberty protected
by the Constitution."
310 U.S. at
310 U. S. 305,
310 U. S.
307.
To the same effect are
Lovell v. Griffin, supra, at
303 U. S. 451,
303 U. S. 452;
[
Footnote 6]
Hague v.
CIO, 307 U. S. 496,
307 U. S. 516;
[
Footnote 7]
Schneider
v.
Page 355 U. S. 324
State, 308 U. S. 147,
308 U. S. 163;
[
Footnote 8]
Largent v.
Texas, 318 U. S. 418,
318 U. S. 422;
[
Footnote 9]
Jones v.
Opelika, 319 U. S. 103,
adopting per curiam on rehearing the dissenting opinion in
316 U. S. 316 U.S.
584,
316 U. S.
600-602; [
Footnote
10]
Niemotko v. Maryland, 340 U.
S. 268,
340 U. S. 271;
[
Footnote 11]
Kunz v.
New York, 340 U. S. 290,
340 U. S. 293.
[
Footnote 12]
Page 355 U. S. 325
It is undeniable that the ordinance authorized the Mayor and
Council of the City of Baxley to grant "or refuse to grant" the
required permit in their uncontrolled discretion. It thus makes
enjoyment of speech contingent upon the will of the Mayor and
Council of the City, although that fundamental right is made free
from congressional abridgment by the First Amendment and is
protected by the Fourteenth from invasion by state action. For
these reasons, the ordinance, on its face, imposes an
unconstitutional prior restraint upon the enjoyment of First
Amendment freedoms and lays "a forbidden burden upon the exercise
of liberty protected by the Constitution."
Cantwell v.
Connecticut, supra, at
310 U. S. 307.
Therefore, the judgment of conviction must fall.
Reversed.
[
Footnote 1]
"Section I. Before any person or persons, firms or organizations
shall solicit membership for any organization, union or society of
any sort which requires from its members the payments of membership
fees, dues or is entitled to make assessment against its members,
such person or persons shall make application in writing to Mayor
and Council of the City of Baxley for the issuance of a permit to
solicit members in such organization from among the citizens of
Baxley."
"Section II. Such application shall give the name and nature of
the organization for which applicant desires to solicit members,
whether such organization is incorporated or unincorporated, the
location of its principal office and place of business and the
names of its officers, along with date of its organization, and its
assets and liabilities. Such application shall further contain the
age and residence of applicant including places of years; and as
well as business or profession in which such applicant has been
engaged during said time, and shall furnish at least three persons
as references to applicant's character. Said application shall also
furnish the information as to whether applicant is a salaried
employee of the organization for which he is soliciting members,
and what compensation, if any, he receives for obtaining
members."
"Section III. This application shall be submitted to a regular
meeting of Mayor and Council of City of Baxley, and in event it is
desired by Mayor and Council to investigate further the information
given in the application, or in the event the applicant desires a
formal hearing on such application, such hearing shall be set for a
time not later than the next regular meeting of the Mayor and
Council of City of Baxley. At such hearing, the applicant may
submit for consideration any evidence that he may desire bearing on
the application, and any interested persons shall have the right of
appearing and giving evidence to the contrary."
"Section IV. In passing upon such application, the Mayor and
Council shall consider the character of the applicant, the nature
of the business of the organization for which members are desired
to be solicited, and its effects upon the general welfare of
citizens of the City of Baxley."
"Section V. The granting or refusing to grant of such
application for a permit shall be determined by vote of Mayor and
Council, after consideration and hearing if same is requested by
applicant or Mayor and Council, in the same manner as other matters
are so granted or denied by the vote of the Mayor and Council."
"Section VI. In the event that person making application is
salaried employee or officer of the organization for which he
desires to seek members among the citizens of Baxley, or persons
employed in the City of Baxley, or received a fee of any sort from
the obtaining of such members, he shall be issued a permit and
license for soliciting such members upon the payment of $2,000.00
per year. Also $500.00 for each member obtained."
"Section VII. Any person, persons, firm, or corporation
soliciting members for any organization from among the citizens or
persons employed in the City of Baxley without first obtaining a
permit and license therefor shall be punished as provided by
Section 85 of Criminal Code of City of Baxley."
"Section VIII. All Ordinances of City of Baxley in conflict with
[this] ordinance are hereby repealed."
"Section IX. Should any section or portion of this Ordinance be
held void, it shall not affect the remaining sections and portions
of same."
[
Footnote 2]
This reference obviously was to the National Labor Relations
Board, as Georgia has no comparable agency.
[
Footnote 3]
During that continuance, appellant brought an action in the
Superior Court of the county asking an injunction against
enforcement of the ordinance and a declaration of its invalidity.
The Superior Court found against petitioner and on appeal the
Supreme Court of the State affirmed, holding that,
"If the ordinance is invalid, by reason of its
unconstitutionality, or for other cause, such invalidity would be a
complete defense to any prosecution that might be instituted for
its violation."
Staub v. Mayor of Baxley, 211 Ga. 1, 2,
83 S.E.2d 606,
608.
[
Footnote 4]
Mamie Merritt was also charged with the same offense, and was
tried with appellant and was likewise convicted and given the same
sentence, but it has been stipulated that the judgment of
conviction against her shall await, and conform with, the result of
this appeal.
[
Footnote 5]
For that reason, we are not here confronted with any question
concerning the right of the city to regulate the pursuit of an
occupation.
Cf. Thomas v. Collins, 323 U.
S. 516.
[
Footnote 6]
The ordinance involved in that case proscribed the distribution
of literature in the City of Griffin "without first obtaining
written permission from the City Manager . . . ," which he might
grant or withhold in his discretion. 303 U.S. at
303 U. S. 447.
This Court, in reversing a conviction under that ordinance, said:
"Legislation of the type of the ordinance in question would restore
the system of license and censorship in its baldest form." Id., 303
U.S. at
303 U. S.
452.
[
Footnote 7]
There the ordinance proscribed the leasing of a hall for a
public speech or the holding of public meetings "without a permit
from the Chief of Police." 307 U.S. at
307 U. S. 501.
Members of a labor union sought permission to hold public meetings
in the city for the "organization of unorganized workers into labor
unions."
Id. at
307 U. S. 504.
Permission was refused on the ground that such meetings would cause
disorder. They then sought and obtained an injunction prohibiting
the city from interfering with their rights of free speech and
peaceable assembly. The case came here on certiorari, and this
Court affirmed. In the course of his opinion, Mr. Justice Roberts
said the ordinance was "void upon its face," and that
". . . uncontrolled official suppression [of free speech and
peaceable assembly] cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right."
Id. at
307 U. S.
516.
[
Footnote 8]
There, an ordinance of Irvington, New Jersey, in effect banned
"communication of any views or the advocacy of any cause from door
to door" (308 U.S. at
308 U. S.
163), without "a written permit from the Chief of
Police. . . ."
Id. at
308 U. S. 157.
This Court held the ordinance invalid as a prior restraint upon
First Amendment rights, and said that such an ordinance "strikes at
the very heart of the constitutional guarantees."
Id. at
308 U. S.
164.
[
Footnote 9]
This Court said:
"The mayor issues a permit only if after thorough investigation
he 'deems it proper or advisable.' Dissemination of ideas depends
upon the approval of the distributor by the official. This is
administrative censorship in an extreme form. It abridges the
freedom of religion, of the press and of speech guaranteed by the
Fourteenth Amendment."
318 U.S. at
318 U. S.
422.
[
Footnote 10]
Chief Justice Stone said:
"[H]ere, it is the prohibition of publication, save at the
uncontrolled will of public officials, which transgresses
constitutional limitations and makes the ordinance void on its
face."
316 U.S. at
316 U. S.
602.
[
Footnote 11]
There, the city allowed use of its park for public meetings,
but, by custom, a permit was required from its park commissioner. A
religious group known as Jehovah's Witnesses scheduled several
Bible talks to be held in the city park. They applied for a permit
to do so, but it was refused. Later, they proceeded to hold such a
meeting without a permit, and, when Niemotko opened the meeting, he
was arrested and later convicted for disturbing the peace, though
the meeting was orderly and the real cause was the failure to have
a permit. This Court reversed. After pointing out there were no
standards governing the discretion of the park commissioner in
granting or refusing such permits and referring to
Hague v.
CIO, supra, Lovell v. Griffin, supra, and other cases, it
said:
"It is clear that all that has been said about the invalidity of
such limitless discretion must be equally applicable here. . . .
The right to equal protection of the laws, in the exercise of those
freedoms of speech and religion protected by the First and
Fourteenth Amendments, has a firmer foundation than the whims or
personal opinions of a local governing body."
340 U.S. at
340 U. S.
272.
[
Footnote 12]
There, it was said:
"This interpretation allows the police commissioner, an
administrative official, to exercise discretion in denying
subsequent permit applications [to hold outdoor religious meetings]
on the basis of his interpretation, at that time, of what is deemed
to be conduct condemned by the ordinance. We have here, then, an
ordinance which given an administrative official discretionary
power to control in advance the right of citizens to speak on
religious matters on the streets of New York. As such, the
ordinance is clearly invalid as a prior restraint on the exercise
of First Amendment rights."
340 U.S. at
340 U. S.
293.
Mr. Justice FRANKFURTER, whom Mr. Justice CLARK joins,
dissenting.
This is one of those small cases that carry large issues, for it
concerns the essence of our federalism -- due regard for the
constitutional distribution of power as between
Page 355 U. S. 326
the Nation and the States, and more particularly the
distribution of judicial power as between this Court and the
judiciaries of the States. [
Footnote
2/1]
An ordinance of the City of Baxley, Georgia, [
Footnote 2/2] provides that anyone who seeks to
solicit members for any organization requiring the payment of dues
shall first apply to the Mayor and Council of Baxley for a permit
to carry on such solicitation. The ordinance further provides a
detailed procedure for making the application, standards for
granting the permit, the fee to be charged, and sanctions for
failure to comply with the ordinance. Appellant was arrested for
violation of the ordinance, and was ordered to appear before the
Mayor's Court of the City. By a plea in abatement, she attacked the
ordinance as in conflict with provisions of the State and the
United States Constitutions and with the National Labor Relations
Act. [
Footnote 2/3] Her plea was
overruled, and the cause proceeded to trial. The undisputed
evidence established
Page 355 U. S. 327
that appellant was an employee of the International Ladies'
Garment Workers Union, an organization that required dues of its
members, that she was soliciting members for the union in Baxley,
and that she had not applied for a permit as required by the city
ordinance. Appellant was convicted and sentenced to pay a fine or
$300 or serve 30 days in the city jail.
Appellant applied to the Superior Court of the county for a writ
of certiorari, repeating the contentions she had made in her plea
in abatement. The cause was tried
de novo by the court
without a jury, and the judgment of the Mayor's Court was
affirmed.
On writ of error, the Georgia Court of Appeals reviewed the
judgment of the Superior Court. It noted that appellant had made no
effort to secure a permit, and that her constitutional attack
should have been made specifically against a particular section or
sections of the ordinance, and not against the ordinance as a
whole. On this doctrine of Georgia appellate procedure, it cited
Anthony v. City of Atlanta, 66 Ga.App. 504, 505, 18 S.E.2d
81-82, which, in turn, cited
Glover v. City of Rome, 173
Ga. 239, 160 S.E. 249, and concluded that the issue of the
constitutionality of the ordinance had not been properly raised.
Accordingly, the Court of Appeals sustained the conviction. 94
Ga.App. 18,
93 S.E.2d
375. The Supreme Court of Georgia denied appellant's
application for a writ of certiorari, and the case came here on
appeal from the Court of Appeals of Georgia.
The jurisdictional basis for this appeal is 28 U.S.C. § 1257,
which had its origin in the famous twenty-fifth section of the Act
of September 24, 1789, 1 Stat. 73, 85. That seemingly technical
procedural provision of the First Judiciary Act has served as one
of the most nationalizing forces in our history. By that section,
as construed in
Martin v. Hunter's
Lessee, 1 Wheat. 304, strongly reinforced by
Cohens v.
Virginia, 6 Wheat. 264, the denial of
Page 355 U. S. 328
a claim of a federal right in the final judgment of the highest
available court of a State could be brought for review at the bar
of this Court. This amenability of state action to the judicial
arbitrament of the Nation's Supreme Court has been recognized by
leading historians as one of the shaping influences in the fusion
of the States into a Nation. Naturally enough, vigorous efforts
were made, both before and after the Civil War, to repeal § 25, but
without avail.
See Warren, Legislative and Judicial
Attacks on the Supreme Court of the United States, A History of the
Twenty-Fifth Section of the Judiciary Act, 47 Amer.L.Rev. 1, 161;
H.R.Rep.No. 43, 21st Cong., 2d Sess.; Hart and Wechsler, "Note on
the Attacks Upon the Jurisdiction," The Federal Courts and the
Federal System, 418. The power of this Court to review denials by
state courts of federal claims has never been qualified. [
Footnote 2/4]
While the power to review the denial by a state court of a
nonfrivolous claim under the United States Constitution has been
centered in this Court, carrying with it the responsibility to see
that the opportunity to assert such a claim be not thwarted by any
local procedural device, equally important is observance by this
Court of
Page 355 U. S. 329
the wide discretion in the States to formulate their own
procedures for bringing issues appropriately to the attention of
their local courts, either in shaping litigation or by appeal. Such
methods and procedures may, when judged by the best standards of
judicial administration, appear crude, awkward and even finicky or
unnecessarily formal when judged in the light of modern emphasis on
informality. But so long as the local procedure does not
discriminate against the raising of federal claims and, in the
particular case, has not been used to stifle a federal claim to
prevent its eventual consideration here, this Court is powerless to
deny to a State the right to have the kind of judicial system it
chooses and to administer that system in its own way. It is, of
course, for this Court to pass on the substantive sufficiency of a
claim of federal right,
First National Bank v. Anderson,
269 U. S. 341,
269 U. S. 346,
but if resort is had in the first instance to the state judiciary
for the enforcement of a federal constitutional right, the State is
not barred from subjecting the suit to the same procedures,
nisi prius [
Footnote 2/5]
and appellate, that govern adjudication of all constitutional
issues in that State.
Edelman v. California, 344 U.
S. 357;
Parker v. Illinois, 333 U.
S. 571. In
Nickel v. Cole, 256 U.
S. 222,
256 U. S. 225,
we said,
"[W]hen, as here, there can be no pretence that the [state]
Court adopted its view in order to evade a constitutional issue,
and the case has been decided upon grounds
Page 355 U. S. 330
that have no relation to any federal question, this Court
accepts the decision whether right or wrong."
The relevance of a state procedure requiring that constitutional
issues be presented in their narrowest possible scope is confirmed
by the practice of this Court. The Court has long insisted,
certainly in precept, on rigorous requirements that must be
fulfilled before it will pass on the constitutionality of
legislation, on avoidance of such determinations even by strained
statutory construction, and on keeping constitutional adjudication,
when unavoidable, as narrow as circumstances will permit.
See the classic statement of the unanimous Court in
Liverpool, N.Y. & P.S.S. Co. v. Commissioners of
Emigration, 113 U. S. 33,
113 U. S. 39,
and "a series of rules," drawn from a long sequence of prior
decisions by Mr. Justice Brandeis, in his well known concurring
opinion, frequently cited and always approvingly, in
Ashwander
v. Tennessee Valley Authority, 297 U.
S. 288,
297 U. S.
346-348. Even though its action may result in the
disadvantages and embarrassments of keeping open doubtful questions
of constitutionality, this Court will consider only those very
limited aspects of a statute that alone may affect the rights of a
particular litigant before the Court.
See Muskrat v. United
States, 219 U. S. 346,
219 U. S.
361-362;
Commonwealth of Massachusetts v.
Mellon, 262 U. S. 447. A
statute may be found invalid in some of its parts but valid in
others,
see Dorchy v. Kansas, 264 U.
S. 286,
264 U. S.
289-290, it may be valid at one time and not another,
see Chastleton Corp. v. Sinclair, 264 U.
S. 543,
264 U. S.
547-548, it may be valid under one state of facts, but
not another,
see Kansas City Southern R. Co. v. Anderson,
233 U. S. 325,
233 U. S.
329-330, it may be valid as to one class of persons and
invalid as to others,
see New York ex rel. Hatch v.
Reardon, 204 U. S. 152,
204 U. S.
160-161. It is because the exercise of the right to
declare a law unconstitutional is "the most important and delicate
duty of this court," and because that right "is not given to
[the
Page 355 U. S. 331
Court] as a body with revisory power over the action of
Congress,"
Muskrat v. United States, supra, at
219 U. S. 361,
nor, it may be added, over the action of the forty-eight States,
that this Court has from the beginning demanded of litigants that
they show in precisely what way and to what extent incursions have
been made into their federally protected rights and rules have been
developed designed to narrow as closely as possible the issues
presented by such claims. Surely a state court is not to be denied
the like right to protect itself from the necessity -- sometimes
even the temptation -- of adjudicating overly broad claims of
unconstitutionality. Surely it can insist that such claims be
formulated under precise (even if, in our view, needlessly
particularized) requirements and restricted to the limited issues
that concrete and immediately pressing circumstances may raise.
An examination of the whole course of Georgia decisions leaves
one with the clear conviction that the procedural rule applied by
the Court of Appeals of Georgia in this case was intended to be
responsive to the same problems that have influenced the important
considerations of judicial policy governing the administration of
this Court's business. The cases relied upon by the Georgia court
in this case are part of a long line of decisions holding a
comprehensive, all-inclusive challenge to the constitutionality of
a statute inadequate and requiring explicit particularity in
pleadings in order to raise constitutional questions. Those cases
rest essentially on a recognition of the gravity of judicial
invalidation of legislation.
See, e.g., Dade County v.
State, 201 Ga. 241, 245, 39 S.E.2d 473, 476-477. They require
the pleader to allege the specific portion of the challenged
legislation. Thus, allegations of unconstitutionality directed at a
group of 16 sections of the Criminal Code,
Rooks v.
Tindall, 138 Ga. 863, 76 S.E. 378; a single named "lengthy
section" of a statute,
Crapp v. State, 148
Page 355 U. S. 332
Ga. 150, 95 S.E. 993; a single section of a city charter
amendment,
Glover v. Rome, 173 Ga. 239, 160 S.E. 249; a
named Act of the General Assembly,
Wright v. Cannon, 185
Ga. 363, 195 S.E. 168; and a 5-section chapter of the Code,
Richmond Concrete Products Co. v. Ward, 212 Ga. 773,
95 S.E.2d 677,
were held "too general" or "too indefinite" to raise constitutional
questions because of their failure to define with particularity
what portions offended claimed constitutional rights. The Georgia
rule is designed to apply, within this touchy scope of
constitutional litigation, the requirement of the Georgia Code,
Ga.Code Ann.1956, § 81-101, that pleadings shall "plainly, fully,
and distinctly" set forth the pleader's cause of action,
see
Richmond Concrete Products Co. v. Ward, supra, at 775, 95
S.E.2d at 679.
There is nothing frivolous or futile (though it may appear
"formal") about a rule insisting that parties specify with
arithmetic particularity those provisions in a legislative
enactment they would ask a court to strike down. This is so because
such exactitude helps to make concrete the plaintiffs' relation to
challenged provisions. First, it calls for closer reflection and
greater responsibility on the part of one who challenges
legislation, for, in formulating specific attacks against each
provision for which an infirmity is claimed, the pleader is more
likely to test his claims critically and to reconsider them
carefully than he would be if he adopted a "scatter-shot" approach.
Secondly, the opposing party, in responding to a particularized
attack, is more likely to plead in such a way as to narrow or even
eliminate constitutional issues, as where he admits that a specific
challenged provision is invalid. [
Footnote 2/6] Finally, where the parties identify
particular
Page 355 U. S. 333
language in a statute as allegedly violating a constitutional
provision, the court will often be able to construe the words in
such a way as to render them inoffensive. The ordinance involved in
this case might, for example, have been held inapplicable to the
type of organization to which appellant belongs had her objections
been directed at the word "union" in § I; it might have been held
to provide for the automatic granting of a permit upon registration
had appellant's objections been directed specifically at the
standard set forth in § IV. [
Footnote
2/7] Sophisticated as such a construction might appear, it
would have entailed less astute reading than has been resorted to
by this Court in its avoidance of constitutional adjudication.
Of course, even if the Georgia rule is intrinsically reasonable,
and thus entitled to respect by this Court, we must be sure that it
has not been applied arbitrarily in the case before us. Appellant
attacks a nine-section ordinance with nine charges of invalidity,
several of which (although it is difficult to say precisely how
many) involve federal claims. It may be -- but it certainly is not
clearly so -- that, with little expenditure of time and effort, and
with little risk of misreading appellant's charges, a court could
determine exactly what it is about the Baxley ordinance that
allegedly infringes upon appellant's constitutional rights. But
rules are not made solely for the easiest cases they govern. The
fact that the reason for a rule does not clearly apply in a given
situation does not eliminate the necessity for compliance with the
rule. So long as a reasonable rule of state procedure is
consistently applied, so long as it is not used as a means for
evading vindication of federal rights,
see Davis v.
Wechsler, 263 U. S. 22,
263 U. S. 24-25,
it should not be refused applicability. There is no indication
whatever in the case before us that
Page 355 U. S. 334
the Georgia Court of Appeals applied this well established rule
of pleading arbitrarily or inadvisedly; this case cannot be said to
stand out among the many cases in which the rule has been applied,
as a deviation from the norm.
The local procedural rule which controlled this case should not
be disregarded by reason of a group of Georgia cases which, while
recognizing and reaffirming the rule of pleading relied on by the
Court of Appeals below, suggest a limited qualification. It appears
that, under special circumstances, where a generalized attack is
made against a statute without reference to specific provisions,
the court will inquire into the validity of the entire body of
legislation challenged. The cases on which the Court relies as
establishing this as the prevailing rule in Georgia strongly
indicate that this approach will be used only where an allegation
of unconstitutionality can be disposed of (one way or the other)
relatively summarily and not where, as here, difficult issues are
raised. In the only case cited by the Court in which the Georgia
Supreme Court overturned a statute on the basis of generalized
allegations,
Atlantic Loan Co. v. Peterson, 181 Ga. 266,
182 S.E. 15, the result was "plainly apparent." 181 Ga. at 274, 182
S.E. at 19. In the other cases cited,
Miller v. Head, 186
Ga. 694, 198 S.E. 680;
Stegall v. Southwest Georgia Regional
Housing Authority, 197 Ga. 571, 30 S.E.2d 196;
Krasner v.
Rutledge, 204 Ga. 380, 49 S.E.2d 864, and
Flynn v.
State, 209 Ga. 519,
74 S.E.2d 461,
the court gave varying degrees of recognition to this approach,
refusing altogether to apply it in
Flynn, where the court
declined to accept "the burden of examining the act section by
section and sentence by sentence." 209 Ga. at 522, 74 S.E.2d at
464. Certainly it cannot be said that the Court of Appeals was out
of constitutional bounds in failing to bring the instant case
within the purview of whatever exception can be said to have
been
Page 355 U. S. 335
spelled out by these cases, or that it is for this Court to
formulate exceptions to the valid Georgia rule of procedure.
The record before us presents not the remotest basis for
attributing to the Georgia court any desire to limit the appellant
in the fullest opportunity to raise claims of federal right or to
prevent an adverse decision on such claims in the Georgia court
from review by this Court. Consequently, this Court is left with no
proper choice but to give effect to the rule of procedure on the
basis of which this case was disposed of below.
"Without any doubt, it rests with each state to prescribe the
jurisdiction of its appellate courts, the mode and time of invoking
that jurisdiction, and the rules of practice to be applied in its
exercise; and the state law and practice in this regard are no less
applicable when Federal rights are in controversy than when the
case turns entirely upon questions of local or general law.
Callan v. Bransford, 139 U. S. 197;
Brown v.
Massachusetts, 144 U. S. 573;
Jacobi v.
Alabama, 187 U. S. 133;
Hulbert v.
Chicago, 202 U. S. 275,
202 U. S.
281;
Newman v. Gates, 204 U. S.
89;
Chesapeake & Ohio Railway Co. v.
McDonald, 214 U. S. 191,
214 U. S.
195."
John v. Paullin, 231 U. S. 583,
231 U. S.
585.
The appeal should be dismissed.
|
355
U.S. 313app|
APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER
Portions of Appellant's Plea in Abatement.
"2. Defendant alleges that the prosecution of said case should
be abated upon the ground that said ordinance is unconstitutional
and void for the reasons hereinafter stated."
"(a) Defendant shows that the ordinance with which she is
charged to have violated shows on its face that it
Page 355 U. S. 336
is repugnant to and violative of the 1st and 14th Amendments to
the Constitution of the United States in that it places a condition
precedent upon, and otherwise unlawfully restricts the defendant's
freedom of speech as well as freedom of the press and freedom of
lawful assembly. Defendant shows that the right to engage in
organizing labor unions is an inherent constitutional right
consisting of soliciting members by pointing out to workers the
advantage of belonging to labor unions, such solicitation being
done by word of mouth, by pamphlets or other publications and by
holding meetings of those desirous to be informed of the facts
about labor unions. Defendant shows that such acts are restricted
and limited by said ordinance so as to place a condition precedent,
by way of the payment of a license fee, or the privilege of
engaging in the constitutional rights of free speech, free press
and free assembly."
"(b) Defendant shows that said ordinance is repugnant to and
violative of Section 7 of the National Labor Relations Act, as
amended, and tends to contravene said Act and the public policy of
the United States as contained in said Act by establishing
unwarranted conditions upon the right of defendant to participate
in the labor activities secured by the National Labor Relations
Act, as amended, and the public policy of the United States. Thus,
the ordinance which interferes with such rights is in direct
conflict with superior Federal legislation and is therefore
unconstitutional, null and void."
"(c) Defendant shows that said ordinance is not a valid
ordinance in that it denies equal protection of the laws to
defendant and others like defendant in that said ordinance, which
requires the payment of large sums of money, is founded upon an
unreasonable and invalid classification of persons which must pay
the confiscatory fee which is set out in the ordinance. Said
ordinance makes the payment of the fee conditioned upon the
mere
Page 355 U. S. 337
fact that a person receives remuneration for his efforts in
soliciting membership in an organization. Such classification is
not a reasonable classification for imposing the payment of a fee
upon defendant and others similarly situated."
"(d) Defendant shows that said ordinance is invalid in that it
shows on its face that it is a regulatory measure imposing a flat
tax upon a privilege which is excessive in amount. The sums of
money charged under said ordinance are of such amount as to be
wholly unreasonable, confiscatory and prohibitory. The amounts of
money charged in said ordinance are so large that it could not
reasonably be paid by anyone desiring to organize any sort of
organization and therefore exists solely to prevent and deprive
defendant and others like defendant from organizing members in
their organization and exercising rights previously herein set out.
The ordinance shows on its face that it is patently a device
intended to prevent organization within the city limits in behalf
of labor unions. It is a well known fact this day and time that
labor unions constitute the vast majority of organizations which
send paid representatives into communities for the purpose of
organizing and soliciting membership. The above purposes are
illegal and improper and is a misuse and abuse of the lawmaking
powers of the plaintiff city, but nevertheless will be successful
in depriving defendant of her rights unless this court declares
said ordinance null and void."
"(e) Defendant shows that said ordinance is an invalid
regulating in that it leaves within the discretion of the Mayor and
City Council, with no form of appeal or any objective or definitive
standards, the refusal or granting of the license required."
"(f) Defendant shows that said ordinance is void in that the
same is repugnant to and violative of Article 1, Section 1,
paragraph 3 of the Constitution of the State
Page 355 U. S. 338
of Georgia in that the same is not impartial but is unreasonable
and arbitrary and contravenes said Section."
"(g) Defendant shows that said ordinance is unconstitutional and
void as violative of Article 1, Section 1, Paragraph 3 of the
Constitution of Georgia in that defendant is deprived of her
liberty and property without due process of law."
"(h) Defendant shows that said ordinance is not a valid
ordinance enacted for any legitimate purpose to benefit the
citizens of Baxley, Georgia, but that said ordinance on its face
shows that it is unreasonable, confiscatory, prohibitory and
discriminatory, and that it exists solely for the purpose of
depriving and denying defendant and others from engaging in a
lawful occupation and that said ordinance is for the purpose of
preventing the organization of labor unions within the city limits
of Baxley, Georgia."
"(i) Defendant avers that said ordinance is patently void in
that the same is a misuse and abuse of the police power of the City
of Baxley, Georgia, in an effort to deprive defendant and others
like defendant of their rights herein referred to through the
subterfuge of a city ordinance."
"3. Defendant alleges that because of the aforesaid reasons said
ordinance is unconstitutional and void, and should be so declared
by the court, and the action against defendant for violation
thereof abated."
[
Footnote 2/1]
The peculiar demands made upon the judiciary by a federal system
such as ours were recently indicated by the Chief Justice of
Australia, Sir Owen Dixon:
"[F]ederalism is a form of government the nature of which is
seldom adequately understood in all its bearings by those whose
fortune it is to live under a unitary system. The problems of
federalism and the considerations governing their solution assume a
different aspect to those whose lives are spent under the operation
of a federal Constitution, particularly if, by education, practice
and study, they have been brought to think about the constitutional
conceptions and modes of reasoning which belong to federalism as
commonplace and familiar ideas. A unitary system presents no
analogies, and, indeed, on the contrary, it forms a background
against which many of the conceptions and distinctions inherent in
federalism must strike the mind as strange and exotic
refinements."
O'Sullivan v. Noarlunga Meat Ltd., 94 C.L.R. 367, 375
(1956).
[
Footnote 2/2]
The ordinance is set forth in full in the margin of the opinion
of the Court in this case,
ante, p.
355 U. S.
314.
[
Footnote 2/3]
The relevant portions of appellant's plea in abatement are set
forth in an Appendix to this opinion, p.
355 U. S. 335,
infra.
[
Footnote 2/4]
It was not enlarged until 1914, 38 Stat. 790, now 28 U.S.C. §
1257(3). It had been assumed that state courts would not unduly
invoke a federal right to cut down state authority. But judicial
attitudes on the part of state courts toward modern social
legislation led Congress to establish a new principle of appellate
control over state courts by conferring on this Court jurisdiction
to review judgments by the highest court of a State upholding, as
well as denying, federal rights.
More immediately relevant is the fact that, despite the
centralizing tendency generated by the outcome of the Civil War,
this Court rejected a vigorous drive to extend the scope of our
review so as to cover all questions in the record, even those of
state concern, where the case is properly here on denial of some
federal claim. This attempted extension was rejected as a "radical
and hazardous change of a policy vital in its essential nature to
the independence of the State courts. . . ."
Murdock v.
Memphis, 20 Wall. 590,
87 U. S.
630.
[
Footnote 2/5]
"While it is true that a substantive Federal right or defense,
duly asserted, cannot be lessened or destroyed by a state rule of
practice, yet the claim of the plaintiff in error to a Federal
right not having been asserted at a time and in a manner calling
for the consideration of it by the state supreme court under its
established system of practice and pleading, the refusal of the
trial court and of the supreme court to admit the testimony
tendered in support of such claim is not a denial of a Federal
right which this court can review,
Baldwin v. Kansas,
129 U. S.
52;
Oxley Stave Co. v. Butler County,
166 U. S.
648. . . ."
Atlantic Coast Line R. Co. v. Mims, 242 U.
S. 532,
242 U. S.
536-537.
[
Footnote 2/6]
One of the most vulnerable provisions of this ordinance, the
drastically high license fee, was taken out of controversy in this
suit by the respondent's admission of its invalidity. It is not out
of question that more specific pleading might have drawn similar
admissions as to other allegedly objectionable portions of the
ordinance.
[
Footnote 2/7]
Thus, it is an allowable assumption that the Georgia court might
construe § VI so as to make it provide that a person in appellant's
situation need only apply and pay a fee in order to obtain the
permit.