Morante v. People of the State of New York (1941)

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1941

Number 31

ERMINIO MORANTE, Petitioner

v. THE PEOPLE OF THE STATE OF NEW YORK

Petition for Writ of Certiorari to the County Court of Westchester County, State of New York

JOSEPH F. RUTHERFORD HAYDEN C. COVINGTON Attorneys for Petitioner INDEX

SUBJECT INDEX

SUBJECT INDEX

PAGE

Summary Statement of Matters Involved . . . . . . . . . . . 1

Reasons Relied on for Allowance of Writ . . . . . . . . . . 9

Brief in Support of Petition for Writ . . . . . . . . . . . 15

Opinions of the Courts Below . . . . . . . . . . . . . . . . 15

Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 15

Statement of the Case . . . . . . . . . . . . . . . . . . . 17

Specification of Errors . . . . . . . . . . . . . . . . . . . 17

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 18

The statute is invalid and unconstitutional as construed and applied because it deprives petitioner of his right of freedom to worship Almighty God as by Him commanded in the Bible and according to dictates of petitioner's conscience, and of freedom of the press, contrary to Section One of the Fourteenth Amendment to the United States Constitution . . . . . . . . . . . . . . . . . . . . . . . . 18

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . 27 CASES CITED

Allen v. Duffie

43 Mich. 1; 4 N. W. 427; 38 Am. Rep. 159 ... 25

Bacon v. Texas

163 U. S. 207, 215 ... 17

Bennett v. Brooks

91 Mass. 118 ... 21, 25

Bryan v. Watson

127 Ind. 42; 62 N. E. 666 ... 25

Cantwell v. Connecticut

310 U. S. 296 ... 12, 23

Chesapeake & Ohio Ry. Co. v. Kuhn

284 U. S. 44-46 ... 17

Commonwealth (Borough of Clearfield, Pa.)

v. Reid et ux.

20 A. 2d 841 ... 24

Commonwealth (Pa.) v. Nesbit

34 Pa. St. Rep. 398 ... 25

Concordia Fire Ins. Co. v. Illinois

292 U. S. 535, 545 ... 12, 21

Cronan v. Boston

136 Mass. 384 ... 25

Cuyahoga Power Co. v. Northern Realty Co.

244 U. S. 300, 302, 303 ... 17

Dale v. Knepp

98 Pa. St. Rep. 389, 392 ... 25

Ft. Madison First M. E. Church v. Donnell

81 N. W. 171; 110 Iowa 5 ... 25

Hannan et al. v. City of Haverhill (Mass.) et al.

120 F. 2d 87 ... 24

Hull, In re

18 Idaho 175 ... 20, 25

Idaho v. Morris

155 P. 296 ... 25

Lovell v. City of Griffin

303 U. S. 444 ... 12

CASES CITED

Mellon v. O'Neill

275 U. S. 212, 213 ... 17

Norfolk & S. Turnpike Co. v. Virginia

225 U. S. 264, 269 ... 17

Pennsylvania Railroad Co. v. Ill. Brick Co.

297 U. S. 447, 453 ... 17

People v. Finn

57 Misc. 569; 110 N. Y. S. 22 ... 10

Pulitzer Pub'g Co. v. McNicholas (Mo.)

181 S. W. 1 ... 25

Randall v. Board of Comm'rs of Tippecanoe Co. (Ind.)

261 U. S. 252 ... 17

Reynolds v. United States

98 U. S. 145, 162, 163 ... 22

San Antonio & A. P. R. Co. v. Wagner

241 U. S. 476, 477 ... 17

Schneider v. State

308 U. S. 147 ... 12, 22

Second Nat'l Bank of Cincinnati, Ohio, v.

First Nat'l Bank of Okeana, Ohio

242 U. S. 600 ... 17

Stanley v. Schwalby

162 U. S. 255, 269 ... 17

State of Iowa v. Mead et al.

300 N. W. 523 ... 18, 26

State v. Needham

134 Kan. 155; 4 P. 2d 464 ... 25

Sullivan v. Texas

207 U. S. 416, 422 ... 17

Western Union Tel. Co. v. Crovo

220 U. S. 364, 366 ... 17

Western Union Tel. Co. v. Priester

276 U. S. 252, 258 ... 17 STATUTES CITED

New York Penal Law

Secs. 2140, 2142 ... 7

Sec. 2147 ... 6

28 U. S. C. A. 344 (b) [Judicial Code, Sec. 237 (b)] 15

United States Constitution

Amendment XIV, Sec. 1 ... 18

Virginia Statute for Religious Freedom ... 22

MISCELLANEOUS CITATIONS

BIBLE

Psalm 36:9 ... 22

Isaiah 43:9-12 ... 21

Isaiah 61:1-3 ... 21

Matthew 4:10 ... 21

Matthew 10:7, 12-14 ... 21

Mark 6:6 ... 11, 19, 21

John 4:24 ... 21

John 17:3 ... 22

Acts 20:20 ... 11, 19, 21

1 Corinthians 9:16 ... 11

Hebrews 7:12 ... 11

Hebrews 8:3 ... 11

1 Peter 2:9, 21 ... 11, 21

Blackstone, Commentaries

Chase 3d ed., pp. 5-7 ... 22

Cooley, Constitutional Limitations, 8th ed., p. 968 ... 22

60 Corpus Juris 1056 ... 25

New York Code of Criminal Procedure

Art. 520 ... 15

45 N. Y. State Dept. Reports 286 ... 10

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1941

Number

ERMINIO MORANTE, Petitioner v. THE PEOPLE OF THE STATE OF NEW YORK

Petition for Writ of Certiorari to the County Court of Westchester County, State of New York

To the SUPREME COURT OF THE UNITED STATES OF AMERICA:

The petition of Erminio Morante shows to the Supreme Court of the United States as follows:

A

Summary Statement of Matters Involved

Statement of Facts.

The petitioner is an ordained minister of Jehovah God and is known as one of Jehovah's witnesses.

This is a criminal action. Petitioner was arrested June 14, 1940, and charged with desecrating the Sabbath through a violation of Section 2147 of the Penal Law of the State of New York, because he was alleged to have publicly offered for sale-and attempted to sell a pamphlet entitled Judge Rutherford Uncovers Fifth Column.

He was charged with said offense on complaint of John F. Cregier before Stanley E. Anderson, Police Justice of the Court of Special Sessions in the Village of Mount Kisco, New York, on such date. On August 22,1940, he was tried before said justice without a jury.R.2.

The undisputed evidence established at such trial showed that petitioner was going from house to house in the residential section within the Village of Mount Kisco presenting to residents at their homes the booklet Judge Rutherford Uncovers Fifth Column, accepting small money contributions to aid in printing and distributing more like literature; and to those unable to contribute but who promised to read he left a copy without contribution. The booklet was offered in evidence as Defendant's Exhibit B, printed in the record at pages 5 to 24. The distribution of the booklet was employed by the petitioner as his way of worshiping Almighty God.

The booklet is paraphrased as follows:

THIS BOOKLET publishes the letter of the author written and addressed to a reporter of the New York Post in response to the request for information, for publication in said newspaper, concerning Jehovah's witnesses, who at that very time were prominent before the public eye because of the violent persecutions that had broken out throughout the land and the numerous false charges hurled against them by members of the Roman Catholic Hierarchy and other religionists, including the accusation that Jehovah's witnesses were fifth columnists and a subversive organization financed by the totalitarian powers of Europe.

Because the information was vital to millions of other Americans besides readers of the Post, and who were concerned about the preservation of American ideals of free speech, press, assembly and worship, the

aforesaid letter was printed and circulated (with additional comments) throughout the United States. (And fortunately, too, for Americans, because the Post failed to print Judge Rutherford's statement as supplied them, and the general acceptance and appreciation of the American public of this most timely information is marked by its wide distribution, as indicated in the Yearbook of Jehovah's witnesses for 1941, pages 67, 68: "The booklet Judge Rutherford Uncovers Fifth Column started through the factory on June 28, and in but three months 5,523,322 have already gone out.")

This booklet furnishes the author's candid answers to the probing questions of the reporter as to the outburst of violence against Jehovah's servants, the identity of those participating openly in or outspokenly inciting to such violence, the distorted charges published against them in religious and secular newspapers, the cause of the troubles, and the origin, general history and purposes of the society of which Judge Rutherford is president, to wit, the Watch Tower Bible and Tract Society.

In his replies the author makes no personal attack on anyone, nor is any attempt made to hold up anyone to ridicule or obloquy or shame for his religious or other beliefs, but facts are stated baldly, with no effort to conceal who are the perpetrators of or inciters of and connivers at violation of law and endangerment of American institutions prized by all freedom-lovers, regardless of creed and rank or position. This exposure is not so written or couched as to stir up violence even against the perpetrators or inciters (and the phenomenal distribution of the booklet has not provoked any such as of record), but that Americans, and especially followers of Jesus Christ, might be put on guard against those who conceal their real motives and undermine the freedoms and institutions which have been a boon to this country; and that they might avail themselves of the legal and constitutional and orderly means of self-defense.

The author does not state his opinions, but authentic records of cases in point, and his conclusions are fully established, that the organization which he names is the real fifth column in America, and not those whom this very organization accuses of such role; and that the consistent course of the organization he names in connection with mobs, propaganda, false charges, duplicity and activities of opposition to Jehovah's witnesses in deprivation of the exercise of their guaranteed rights as followers and servants of Christ, as well as peaceable citizens, is in agreement with the course of the same organization in foreign lands which have been betrayed by fifth-column groups into the power of the totalitarian dictatorships, including Germany, where more than six thousand of Jehovah's witnesses have been imprisoned, many being executed (page 20). Cognizance is taken of the fact (page 31) that "the unanimous Declaration of Independence" of the State of Texas puts the finger on the same organization as inimical to true Americanism and brands its agents as "eternal enemies of civil liberty, the ever-ready minions of power, and the usual instruments of tyrants" and as "denying us the right of worshipping the Almighty according to the dictates of our own conscience". The exposed activities of the Roman Catholic Hierarchy in America against Jehovah's witnesses during 1940 up until publication of this booklet and as briefly set forth herein prove that the said organization is unchanged in purpose and action and has the same spirit as declared in the Texas Declaration.

The Watch Tower Bible and Tract Society has an open record before the country. It has operated for more than 60 years, including national crises, and it has published the source of its financial means and the use and expenditures of such, in the issues of The Watchtower and, more recently, the Yearbook of Jehovah witnesses, since 1927, and the author also describes a method of carrying on the Bible educational campaign in America and other lands. (Pages 19-21) And his statement by the then United States Solicitor General Francis Biddle, during the time of mob action and the mand for investigation, clears Jehovah's witnesses of all charges by religionists as to fifth-column activities and connections. (Page 32) Judge Rutherford's suggestion of a Congressional investigation of the organization accusing and opposing Jehovah's witness (page 22) is a proper conclusion to what he has written in the preceding paragraphs and points out the proper present course to prove beyond controversy who the anti-American fifth-column are.'

The undisputed evidence showed that petitioner was a ordained minister of the Almighty, Jehovah God, preachin the Gospel in the manner commanded by Him and followir in the footsteps of the Lord Jesus Christ and His apostle doing good unto the residents of Mount Kisco and performing a work of interest, convenience and necessity.

Petitioner possessed credentials attesting to the fact that he was such ordained minister, which credentials appear a Defendant's Exhibit A at the record, pages 4 and 5.

At the conclusion of such hearing on August 22,1940,the court took the case under advisement and briefs were submitted and on September 12,1940, decision was rendered finding the petitioner guilty as charged because money was accepted for the booklet, and imposing the maximum fine allowed by the statute. R.4.

On September 16, 1940, petitioner duly presented to the County Judge of Westchester County his affidavit for appeal and certificate of reasonable doubt. (R.27-30) Thereupon on such date the County Judge of Westchester County signed an order allowing said appeal and directing the Court of Special Sessions to make its return in the time and manner required by law.

R.30.

Notice of appeal and copy of affidavit for appeal and certificate of reasonable doubt were duly served upon the Court of Special Sessions (R.4,26), and copies of same were acknowledged by the District Attorney for Westchester County.R.30.

Thereafter, in the time and manner required by law, to wit, on April 15,1941,the case was brought on for argument before the County Court of Westchester County (R.31) and on May 5,1941,the County Court entered an order affirming said judgment of conviction (R.31,32) and thereupon the Court rendered and entered a judgment affirming said conviction.R.32.

In the time and manner required by Article 520 of the Code of Criminal Procedure of the State of New York, petitioner duly presented in writing application for allowance of appeal from the County Court of Westchester County to the Court of Appeals of New York. R.32-36.

Said application was presented to Chief Judge Irving Lehman on May 28,1941,and taken under advisement,together with briefs submitted on such date,and application was denied on October 2,1941. (See certificate of Chief Judge Irving Lehman of the Court of Appeals of New York.) R.36,37.

Statute here drawn in question.

The legislation here drawn in question is a statute of the State of New York, known as Section 2147 of the Penal Law, entitled "Public Traffic on Sunday" and otherwise known as the "Sabbath Law", reading as follows:

"All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows:

Articles of food may be sold, served, supplied and delivered at any time before ten o'clock in the morning;

Meals may be sold to be eaten on the premises where sold at any time of the day;

Caterers may serve meals to their patrons at any time of the day;

Prepared tobacco, milk, eggs, ice, soda-water, fruit, flowers, confectionery, souvenirs, newspapers, gasoline, oil, tires, drugs, medicines and surgical instruments, may be sold in places other than a room where spirituous or malt liquors or wines are kept or offered for sale and may be delivered at any time of the day.

Delicatessen dealers and bakeries may sell, supply, serve and deliver cooked and prepared foods, between the hours of four o'clock in the afternoon and half past seven o'clock in the evening, in addition to the time provided for in subdivision one hereof.

The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods, or meats, fresh or salt, at any hour or time of the day. Delicatesen dealers shall not be considered as caterers within subdivision three hereof." R. 33, 34.

Other related sections of the Penal Law regarding the "Sabbath", pertinent to this inquiry, read as follows:

"Section 2140. The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community."

"Section 2142. Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both, but for a second or other offense, where the party shall have been previously convicted, it shall be punishable by a fine not less than ten dollars and not more than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days."

Substantial Federal Questions Presented.

By motion to dismiss duly made in the Court of Special Sessions of Mount Kisco (R.3); by affidavit for appeal and certificate of reasonable doubt presented to the County Court of Westchester County (R.27-30); by briefs and argument filed in the County Court (R.31); and by application for allowance of appeal from the County Court of Westchester County duly presented to Chief Judge Irving Lehman of the Court of Appeals of New York (R.32-36), there were presented and raised before each of said courts the following questions:

(1) That petitioner is an ordained minister of Jehovah God, preaching the gospel by distribution of literature, and his activity did not come within the terms of the said statute but within the exceptions and therefore petitioner was not guilty.

(2) That the statute, as construed and applied to petitioner's activity, was unconstitutional and void, because it deprived him of his right of freedom to worship Almighty God as by Him commanded and according to dictates of petitioner's conscience, and also deprived petitioner of his right of freedom of press, all contrary to Section One of the Fourteenth Amendment to the United States Constitution.

The Court of Special Sessions wrote an opinion holding that the "Sabbath Law" in question applied to a minister of the Gospel in the same manner as to any commercial activity and held that the constitutional rights of petitioner had not been violated and thereby overruled the aforesaid Federal questions. R. 24-26.

The County Court of Westchester County specifically overruled each of the claims of law made by petitioner and overruled each Federal question presented to it and held

that the statute was applicable and that the petitioner was not denied his rights of freedom of press and worship, contrary to the Fourteenth Amendment to the United States Constitution. R.31,32.

Chief Judge Irving Lehman of the Court of Appeals of New York expressly passed upon the constitutionality of said statute and the aforesaid Federal questions, and held the same did not present a question of law that should be reviewed by the Court of Appeals. R. 26-37.

Therefore, there are presented to this Court for review substantial Federal Questions as follows:

Does the statute in question, as construed and applied by the courts below, violate Section One of the Fourteenth Amendment to the United States Constitution in that it deprives petitioner of his right of freedom to worship Almighty God according to the dictates of his conscience, and of freedom of press?

Does the statute, as fairly construed, include the activity of the petitioner, as an ordained minister of the gospel?

B

Reasons Relied on for Allowance of Writ

The questions presented here are of national importance and basically affect the fundamental personal and civil rights of every person domiciled within the United States. The courts of New York have rendered a decision on a most important Federal question in a way that nullifies the constitutional guarantees and provisions with respect to personal freedom. The opinions of the Court of Special Sessions and the County Court of Westchester County and order denying appeal by Chief Judge Lehman of the Court of Appeals have misconstrued opinions of this Court and warped them so as to distort their true meaning for the purpose of amputating petitioner's rights. The opinions and decisions of the New York courts are in direct conflict with applicable decisions of this Court.

The New York courts have radically and so far departed from the accepted and usual course of judicial proceedings as to demand an order of this Court halting such extraordinary departure from established principles of liberty and constitutional law.

On March 10, 1932, the Attorney-General of the State of New York wrote an opinion, construing this particular statute, Section 2147, in which he expressly held that the selling of "religious books" on Sunday by a minister of the Gospel or Sunday School teacher is not "public selling or offering for sale" included in the statute. (45 N.Y.State Dept.Reports 286) R.24,25.

In this connection, the Court's attention is invited also to the case of People v. Finn, 57 Misc, 569, 110 N.Y.S.22, in which the defendant was committed by a city magistrate upon a charge of violating the Penal Code protecting the Sabbath, similar to this, by exhibiting Sunday moving pictures. The evidence showed that the act consisted in exhibiting pictures illustrating lectures delivered at the same time on the Bible story of Joseph and his brethren, and also an illustrated lecture on the lumber industry in California. It was held that the exhibition of such moving pictures in relation to a subject-matter of purely intellectual interest did not constitute "public sport, exercise, or show" so as to violate the Sabbath laws within the intention of the code.

By common consent of the people throughout every State of the Union, such as in the State of New York, the first day of the week, called Sunday, is set aside for rest and the practice of worshiping Almighty God. The law of the United States and of every state recognizes this. No law can be passed, of course, compelling the practice of any form of religion or worship on Sunday; but the laws protect anyone exercising his right to worship Almighty God according to the dictates of his conscience on Sunday in the manner chosen, such as was chosen by the petitioner in this case and as he was so exercising. The work of distribution of Bible literature and worshiping Almighty God by doing good unto

others in calling upon them at their homes and offering to them helpful Bible explanations in printed form, and taking from some persons receiving such literature small contributions to aid in producing and distributing more like literature, is deemed and considered benevolent and charitable and a work of necessity within the meaning of the law; that is, the Sunday or so-called "Sabbath law".

In prohibiting labor on Sunday and the sale of goods, wares and merchandise on Sunday, the law makes exceptions to labor of necessity and charity and the sale of necessities and the practice of the free worship of Almighty God according to the dictates of conscience.

In this case it is admitted and also not disputed that the petitioner was exercising his right to worship Almighty God by going from house to house offering to the people the booklet referred to, which relates to explanation of Bible prophecy and bringing to the readers' attention many other facts of importance now due to be known as existing in fulfillment of Bible prophecy and which the people vitally need to know. The petitioner testified that he was commanded by Almighty God to go from house to house and from door to door with this literature, and that he did so from a sense of moral duty or a feeling of kindness for humanity in his desire to warn them so that they might turn from one of the greatest disasters that the world will ever know, to wit, "the battle of that great day of God Almighty" at Armageddon, which is very near.

Therefore it is manifest that from the decisions and construction of the statute by the New York courts, a minister of the Gospel is not included and cannot be convicted for preaching the Gospel and simultaneously accepting money contributions on Sundays. Sunday is set aside as a time of worship and service of Almighty God. The work of the petitioner is benevolent and charitable, and it is to be noticed that he was following in the footsteps of the Lord Jesus and the apostles by going from house to house in preaching the Gospel. (See Mark 6:6; Luke 8:1; Acts 20:20; 1 Peter 2:9,21.) The work of the petitioner was a work of necessity.

(See 1 Corinthians 9:16; Hebrews 7:12; 8:3.)

Therefore the undisputed evidence shows that petitioner was engaged in acts of worship of Almighty God, according to the dictates of his conscience; and the undisputed evidence shows that he was engaged in "press" activity.

Although the statute is valid on its face, it is the wrongful and unconstitutional application thereof that makes it void, as this Court said in Concordia Fire Insurance Co. v. Illinois, 292 U.S.535, 545:

"Whether a statute is valid or invalid under the equal protection clause of the Fourteenth Amendment often depends on how the statute is construed and applied. It may be valid when given a particular application and invalid when given another."

In answer to the contention that the statute is regulatory, we wish to point out that one can engage in the activity of preaching the Gospel on Sunday by distribution of literature free of charge without being subject to the statute and go anywhere he pleases or any time he pleases without regulation under the statute. The statute is not a regulatory statute, but prohibitory, and limits freedom of press and freedom of worship to free distribution of literature, thereby prohibiting the taking of contributions to assist in the benevolent work done by petitioner.

Therefore we submit that the courts in the case at bar have ruled directly contrary to Schneider v. State, 308 U.S. 147, Lovell v. City of Griffin, 303 U.S. 444, and Cantwell v. Connecticut, 310 U.S.296,and have wrongfully deprived petitioner of his rights of freedom of press and freedom to worship Almighty God.

Wherefore your petitioner prays that this Court issue a writ of certiorari to the County Court of Westchester County, New York, directing such court to certify to this Court for review and determination on a day certain to be named

therein, a full and complete transcript of the record and all proceedings in the case as numbered and entitled on the docket of said court; and that the decree of that court be reversed, and that your petitioner may have such other and further relief in the premises as to this Court may seem just and proper under the circumstances.

ERMINIO MORANTE Petitioner

By JOSEPH F. RUTHERFORD HAYDEN C. COVINGTON Attorneys for Petitioner BRIEF IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

A

Opinions of the Courts Below

The opinion of the Court of Special Sessions, the County Court of Westchester County and the certificate of Judge Irving Lehman of the Court of Appeals of New York, are not reported, but appear in the record at, respectively, pages 24-26, 31-32 and 36-37.

B

Jurisdiction

Timeliness.

The jurisdiction of this Court is invoked under Section 237 (b) of the Judicial Code [28 U.S.C.A.344 (b)].

The judgment of the County Court of Westchester County was rendered and entered on May 2, 1941. R. 32.

Article 520 of the Code of Criminal Procedure provides for the making of an application for leave to appeal to the Court of Appeals of the State of New York, which is not a matter of right but which is addressed to the discretion of the Chief Judge of the Court of Appeals. On May 28, 1941, within the time required by said article, petitioner duly presented to Chief Judge Lehman said application for leave to appeal. R.36,37.

The application was not determined by the Chief Judge of the Court of Appeals until October 2,1941. (R.37) The judgment of the County Court of Westchester County became final on October 2,1941,the date of the denial of said application for leave to appeal to the Court of Appeals.

The petition for certiorari is duly filed and presented to this Court within ninety days from such date and is therefore timely.

The statute.

The validity of state legislation under the United States Constitution was drawn in question in this case and the decision of each of the New York courts was wrongfully in favor of this validity. The legislation here challenged is a statute of the State of New York, Penal Law Section 2147, and is set forth, together with other pertinent statutes in the Petition for Writ of Certiorari, pages 6 to 8, supra.

In deciding that the statute is not unconstitutional because it abridges freedom of speech, press and worship in violation of the Fourteenth Amendment to the United States Constitution, the County Court of Westchester County held that the statute properly applied to the activity of petitioner, and decided in favor of its validity on its face and as so applied. R. 31, 32.

Petitioner duly and properly urged in all the courts below that the said statute as construed and applied to him was invalid because it deprived him of the above described rights, contrary to Section One of the Fourteenth Amendment to the United States Constitution.

From the very beginning, therefore, the validity of the legislation here challenged as being in contravention of the Fourteenth Amendment was thus drawn in question. The judgment of the trial court was in favor of the validity of such statute and also the County Court of Westchester County found in favor of the validity thereof, overruling such Federal questions.

County Court of Westchester County, the highest Court in the State of New York in which a decision could be had.

The County Court of Westchester County was the highest court in the State of New York in which a decision could be had in this cause, although such is not the highest court in the State of New York. The order of affirmance by the County Court was not susceptible to further review in the state courts by a matter of right. All proper steps were taken for further review in presenting the case to Chief Judge

Irving Lehman of the Court of Appeals of New York. He refused to exercise his discretionary power and allow a review by the New York Court of Appeals. His refusal to exercise his sound discretion made the County Court the court of last resort and therefore the petition for certiorari is to the County Court of Westchester County, State of New York. See Bacon v. Texas, 163 U.S.207,215; Sullivan v. Texas, 207 U.S.416,422; San Antonio & A.P.R.Co.v. Wagner, 241 U.S.476,477; Randall v. Board of Commissioners of Tippecanoe County, Ind., 261 U.S.252; Western Union Tel. Co. v. Crovo, 220 U.S.364,366; Stanley v. Schwalby, 162 U.S.255,269; Norfolk & S. Turnpike Co.v. Virginia, 225 U.S.264,269; Cuyahoga Power,Co.v. Northern Realty Co., 244 U.S.300,302,303; Western Union Tel. Co. v. Priester, 276 U.S.252,258; Pennsylvania Railroad Co.v. Illinois Brick Co.,297 U.S.447,453; Mellon v.O'Neill, 275 U.S.212,213; Second National Bank of Cincinnati, Ohio,v. First National Bank of Okeana,Ohio,242 U.S.600; Chesapeake & Ohio Ry. Co.v. Kuhn, 284 U.S.44,45,46.

C

Statement of the Case

A full statement of the case has been given herein, pages 1 to 9, supra, of the Petition for Writ of Certiorari and for the sake of brevity will not be repeated, but is here referred to.

D

Specification of Errors

Petitioner assigns the following errors in the record and the proceedings of said case:

The County Court of Westchester County committed fundamental error in affirming the judgment of the Court of Special Sessions, by failing to hold that the statute, as construed and applied, deprived petitioner of his right of freedom to worship Almighty God as by Him commanded in the Bible and according to dictates of petitioner's conscience, and of freedom of the press, contrary to Section One of the Fourteenth Amendment to the United States Constitution.

The County Court of Westchester County committed fundamental error in failing to hold that the statute did not include the activity of the petitioner engaged in preaching the Gospel of God's Kingdom.

For these reasons, it is reversible error for the County Court of Westchester County to affirm the judgment of conviction rendered by the Court of Special Sessions and hold that the statute was valid and constitutional as construed and applied.

ARGUMENT

The statute is invalid and unconstitutional as construed and applied because it deprives petitioner of his right of freedom to worship Almighty God as by Him commanded in the Bible and according to dictates of petitioner's conscience, and of freedom of the press, contrary to Section One of the Fourteenth Amendment to the United States Constitution.

Due to the fact that enforcement of "blue laws" or desecration-of-Sabbath laws has been relegated to the Dark Ages and the "horse and buggy" days, there have been no decisions on the question that can be called recent, except that of State of Iowa v. Paul E. Mead et al., 300 N.W.523, decided by the Iowa Supreme Court on November 12, 1941, to be referred to later. However, a search of the authorities under statutes identical with this in other states shows conclusively that the activity of petitioner does not come within

the prohibition of the statute, but within the exception of "work of charity and necessity".

The plain and clear purpose of this law is to protect every one in his way of worship on the Sabbath.

Jehovah's witnesses are preaching the Gospel; and this activity of preaching, although not practiced as do religionists, is clearly within the exception of the statute, and not within the prohibition.

It is generally understood, by almost everyone, that all associations of persons who engage in ecclesiastical ceremonies and also societies whose members study the Bible and worship Almighty God are religious organizations. Within the meaning of the law, ALL such associations and societies are considered religious organizations; but according to the Bible definition, there is a difference.

Any formal worship of another as a superior or supreme one by persons who rely upon traditional teachings of men, together with ceremonies, is religion.

A servant and follower of Jesus Christ is one who strictly and exclusively adheres to the Word of Almighty God, Jehovah, in spirit and in truth, and does so without indulging in formal ceremonies. Christ Jesus never was a religionist, and His followers, therefore, are not religionists, within the Biblical meaning of that term. Accordingly they follow in His footsteps in going from house to house.—Mark 6:6; Luke 8:1; Acts 20:20.

But from the legal point of view, all religious organizations and also every corporate group of persons who serve Almighty God are put in the same class; and hence the petitioner is entitled to the benefit of the exemption or exception put in the law. The law does not contemplate and was never intended to interfere with one's way of worship, regardless of what way or means he employs. To say that it does apply means to establish a state religion by prohibiting that practice which does not seem pleasing to the law enforcement officers.

It may be argued that simultaneous acceptance of money contributions from recipients of the literature distributed brings Jehovah's witnesses within the statutory terms "public selling or offering for sale of any property".

Again we say that the exception applies to this particular provision of the statute also. The "buying and selling" here prohibited is the buying and selling of ordinary commercial articles of merchandise, and not articles employed in preaching the Gospel. Furthermore, to sell means to make a profit, and here the undisputed evidence is that there is no profit made whatsoever. On the contrary, the work the petitioner did in preaching the Gospel is carried on at a loss. It is shown in the undisputed evidence that it is a work of charity.

A clergyman of a religious organization occupies his pulpit on Sunday, talks to or harangues the members and others in the congregation, and solicits money from them and receives money. Often this is for his salary, but it may be for missionary work; but whatever it is for, the courts have held that such action is not a violation of the law. See In re Hull, 18 Idaho 175.

Surely calling at a person's home on Sunday and quietly talking to the resident about the Word of God and the wonderful provision made by Almighty God as described in His Word, and the warning commanded by Almighty God to be given to the people, cannot be held to interfere with public morals, health or peace and safety. The real purpose of laws such as the Sabbath law here in question, regulating what shall be done on Sundays, is to restrain business conducted for private pecuniary gain to the dealer or performer of such activity, and general commercial transactions carried on ordinarily on other days of the week.

The work of Jehovah's witnesses is neither "commercial" nor "business" conducted for private pecuniary gain. No profit was made, as was testified by petitioner. He delivered three of such booklets free of charge and from a recipient of one booklet he received a contribution of five cents. The undisputed evidence shows that his income did not exceed

the amount of money that it cost him to distribute the literature. See Bennett v. Brooks, 91 Mass. 118.

Furthermore, to bring an act within the terms and provisions of this particular statute, it must be shown that the petitioner's activity was a "commercial" or "business" one. The undisputed evidence in this case shows that he was not engaged in a "commercial" or "business" transaction, but solely in preaching the Gospel.

The statute has been wrongly construed. It is its misapplication that makes it unconstitutional. Concordia Fire Ins. Co.v. Illinois, 292 U.S.535,545.

The Scriptures declare that all persons who are in a covenant with Almighty God, JEHOVAH, and who sincerely obey His law and serve Him by declaring His Name publicly and from door to door are Jehovah's witnesses. (Isaiah 43:9-12) The Lord Jesus Christ is Jehovah's Chief Witness, and said that He came to earth to bear witness to the truth; and that His followers must likewise bear witness to the truth.

Recognizing this obligation, Jesus Christ's apostle Peter wrote that all such of Jehovah's witnesses must follow in the footsteps of Christ Jesus by bearing witness to the truth. (1 Peter 2:9,21) As such ministers of Jehovah God and as Jehovah's witnesses, each of them is required by God's written law contained in the Bible to go from house to house declaring the good news of His Kingdom and the day of Ilis vengeance. (Isaiah 61:1-3; Matthew 24:14) It is said in the Bible that Christ Jesus went round about the villages teaching, from house to house. (Mark 6:6; Luke 8:1) So also did the petitioner. Christ Jesus expressly commanded (Matthew 10:7,12-14) that all of His followers must preach the Gospel of God's Kingdom by going from house to house. (Acts 20:20) To worship Almighty God means to obey His commandments, as it is written: "Thou shalt worship the Lord thy God, and him only shalt thou serve." (Matthew 4:10) "God is a Spirit! and they that worship him must worship him in spirit and in truth." (John 4:24) To worship means to serve, which service can be rendered rightly to Jehovah God alone, and thus He is made the object of supreme affection and obedience.

By some it may be contended that going from door to door with Bible literature is not a way of worshiping Almighty God.

This Court and the Congress in various statutes specifically define that no person has the right to say whether the act of another is or is not a genuinely obedient act of worship of Almighty God. See Reynolds v. United States, 98 U.S.145,162,163. That case cites with approval the bill passed by the House of Delegates of Virginia, the preamble of which defines religious freedom, reciting:

"that to suffer the civil magistrate to intrude his powers into the field of opinion, . . . is a dangerous fallacy which at once destroys all religious liberty", and "it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order."

The way of worshiping Almighty God as done by petitioner in this case is commanded by the written law of Almighty God. God's law is Supreme. This rule is recognized by Blackstone in his Commentaries (Chase 3d ed., pp.5-7) and Cooley in Constitutional Limitations, 8th ed., p.968.

The petitioner greatly desires to have life and to live, and thus he must serve Almighty God; for it is written that God is the fountain of life. (Psalm 36:9) One who desires to live must obey God's law.—John 17:3.

In this connection we call attention to the opinion of this Court in Schneider v. State, 308 U.S.147, where the Court held that the most effective way of distributing literature was from house to house.

With respect to the question of receiving contributions and sale, this Court held that a statute to regulate contributions for a religious organization was unconstitutional as

construed and applied to the activity of Jehovah's witnesses. Cantwell v. Connecticut, 310 U.S.296.

The pernicious doctrine that constitutionally secured "free press" extends only to free or gift distribution of literature is a new theory unheard of until modern-day totalitarian principles have pushed to the fore. Such erroneous claim means that a person would be entitled to the protection of the constitutional guarantees of freedom of press against statutes such as this if he gave away printed matter, but if he sold such matter, he would not be entitled to this fundamental personal privilege. The claim is, therefore foolish. Newspapers, magazines and other periodicals are sold daily including Sunday, on the streets and elsewhere in every community of this land. Money is received in exchange. The newspaper industry is a profitable one and many have grown wealthy through it. They are entitled to all the guarantees of freedom of the press, even though they do gain great wealth through it.

One who is doing good, such as the petitioner here, by constantly and continuously bringing printed matter on subjects of great importance to the attention of the public, through "press activity", is entitled to let those receiving the information aid in keeping the "good work alive and going" by contributing a small sum with which to print more like literature. It is a ridiculous stalemate to hold that one must "go bankrupt" by forced "free" distribution of literature in order to receive the "free press" protection of the Constitution.

Such a reprehensible contention, if permitted to stand, means the death knell to freedom of press in America.

The simultaneous acceptance of money contributions from some recipients of the literature is only incidental to the main activity of petitioner. It is a means to an end, that is to say, to aid in defraying cost of further proclamation of the Kingdom message of Almighty God.

The theory advanced by the Court of Special Sessions approved by the Westchester County Court, would make constitutional guarantee of freedom of the press the sole prerogative of the rich.

This would "sandbag" the Constitution and sabotage all the liberties of the people.

In this connection we call to the Court's attention the case of Commonwealth (Borough of Clearfield) v. Reid et ux., 20 A. 2d 841, where President Judge Keller, in setting aside conviction of two of Jehovah's witnesses, said, among other things:

"This historical reference to 'pamphlets' in that [Lovell] opinion and in other opinions of that court (Schneider v. State . . . ; Thornhill v. Alabama, 310 U.S. 88, 97; . . . etc.) is not limited to 'pamphlets' which are distributed without cost. Every student of history knows that the 'pamphlets' referred to by Chief Justice Hughes in his opinion, and by Mr. Justice Sutherland in the Grosjean case, were not for the most part circulated gratis, but were distributed to subscribers or sold."

See also the case of Hannan et al. v. City of Haverhill et al., 120 F. 2d 87, where the Circuit Court of Appeals for the First Circuit said:

" . . . Such use of the streets and public places, sanctioned by ancient usage, has become part of the liberties of the people protected by the Fourteenth Amendment from state encroachment. Hague v. C.I.O., 307 U.S.496,515; Schneider v.State,308 U.S.147, 163; Cantwell v. Connecticut,310 U.S.296,303. We take it also that this constitutional right to make reasonable use of the streets for the purpose of distributing literature is not limited to handing it out free of charge, but includes also the right to offer the literature for sale so as to defray the cost of publication—otherwise, the circulation of one's opinions or the propagation of one's faith on an extensive scale would

tend to become a prerogative of the well-to-do. Cf. Lovell v. Griffin, 303 U.S.444,452.In Cantwell v. Connecticut, 310 U.S.296,a state statute was invalidated as an unconstitutional restriction on the right to solicit funds for religious objects."

This type of law has been repeatedly held not to be applicable to solicitation of funds and contracts for the payment of money when solicited or contracted for by a religious organization or church on Sunday. In this connection, see the cases of:

Idaho v. Morris

155 P. 296

Commonwealth v. Nesbit (Pa.)

34 Pa. St. Rep. 398

Cronan v. Boston

136 Mass. 384

State v. Needham

134 Kan. 155; 4 P. 2d 464

Dale v. Knepp

98 Pa. St. Rep. 389, 392

Bryan v. Watson

127 Ind. 42; 62 N. E. 666

Ft. Madison First M. E. Church v. Donnell

81 N. W. 171; 110 Iowa 5

Allen v. Duffie

43 Mich. 1; 4 N. W. 427; 38 Am. Rep. 159

In re Hull

18 Idaho 175

Bennett v. Brooks

91 Mass. 118

Pulitzer Pub. Co. v. McNichols (Mo.)

181 S. W. 1

60 Corpus Juris 1056 Finally we call to the Court's attention a decision by the Supreme Court of Iowa in the case of State of Iowa v.

Mead et al., 300 N.W.523, decided November 12, 1941, which is directly in point in this matter, where the appellants were charged with a violation of the identical statute in which complaint it was alleged that Jehovah's witnesses desecrated the Sabbath in that "they did sell and attempt to sell literature on Sunday". In that case the court said as follows:

"The state also contends the distribution of the booklets and occasional receipt of the sum of ten cents constituted 'selling property' within the prohibition of the act. However, appellants were not engaged in selling booklets. The alleged sales were merely incidental and collateral to appellants' main object which was to preach and publicize the doctrines of their order. Indicative of this was the practice of giving booklets to those unwilling to contribute. Appellants regarded the amounts received as donations and this was frequently the thought of those who gave money. Appellants were teaching and spreading their religious views without compensation and at their own expense. All receipts from the booklets were placed in a publication fund, which it was necessary to supplement by voluntary contributions to cover the cost of publishing the booklets. The commercial aspect of sales was absent. We do not think the statute contemplates that the distribution of booklets of this nature and under these particular circumstances constitutes desecrating the Sabbath."

Conclusion

It is therefore submitted that this case is one calling for the exercise by this Court of its supervisory powers to the end that errors complained of may be corrected and that to such end a writ of certiorari ought to be granted that this Court review the decision of the County Court of Westchester County of New York.

Confidently submitted,

JOSEPH F. RUTHERFORD 124 Columbia Heights Brooklyn, New York

HAYDEN C. COVINGTON 117 Adams Street Brooklyn, New York

Attorneys for Petitioner FILE COPY

Office - Supervisor

Supreme Court of the United States October Term, 1941

No.831

ERMINIO MORANTE

Petitioner

against

THE PEOPLE OF THE STATE OF NEW YORK Respondents

RESPONDENTS' BRIEF IN OPPOSITION

frank H.Myers

ELBERT T. GALLAGHER District Attorney of Westchester County, New York Attorney for Respondents INDEX

THE FACTS 2

THE STATUTE 5

ARGUMENT 6

POINT I—The statute as construed and applied in this case deprives the petitioner of no constitutional right 6

(a) Religious Freedom 7

(b) Freedom of the Press 10

POINT II—The prayer for a writ of certiorari should be denied 11

CASES CITED

Cantwell v. Connecticut, 310 U. S. 296 8

Ex Parte Jackson, 96 U. S. 727 10

Gitlow v. Kiely, 44 Fed. 2d, 227, affd. 49 Fed. 2d, 1077, cert. denied, 284 U. S. 648 10

Gitlow v. People, 268 U. S. 652 10

Hennington v. Georgia, 163 U. S. 299 6

Minersville School District v. Gobitis, 310 U. S. 586 9

Patterson v. Colorado, 205 U. S. 454 10

Petit v. Minnesota, 177 U. S. 164 6

Quong Ham Wah Co. v. Industrial Acc. Commission, 255 U. S. 445 7 Index

PAGE

Saltonstall v. Saltonstall, 276 U. S. 260 ... 7

Schneider v. State, 308 U. S. 147 ... 8

Supreme Lodge, etc. v. Meyer, 265 U. S. 30 ... 7

STATUTE CITED

Penal Law, Section 2140. 6,7

5,6

Supreme Court of the United States October Term, 1941

No.831

ERMINIO MORANTE, Petitioner against

THE PEOPLE OF THE STATE OF NEW YORK, Respondents.

RESPONDENTS' BRIEF IN OPPOSITION

The petitioner has applied for review by writ of certiorari of judgment of the County Court of Westchester County, New York, which affirmed a judgment of the Court of Special Sessions of the Village of Mount Kisco, convicting the petitioner of a violation of Section 2147 of the Penal Law of the State of New York.

After a trial before the Court of Special Sessions the petitioner was found guilty and fined the sum of ten dollars, payment of which was suspended (Rec., p. 26). The opinion of the trial court, which is not reported, appears at pages 24-26 of the record. The County Court wrote no opinion, but its order of affirmance will be found at pages 31-32. Thereafter an application for leave to appeal to the Court of Appeals was denied by Chief Judge Irving LEHMAN, without opinion, by an order dated October 2, 1941 (Rec., pp. 36-37).

The Facts

The petitioner was charged as follows in the information (Rec., p. 1):

"That one Erminio Morante, on the 14th day of July, 1940, at East Main Street, in the Village of Mount Kisco, County of Westchester, N. Y., at about 11.45 o'clock in the forenoon of said day, did violate subdivision of section 2147 of the Penal Law of the State of New York, by wrongfully, unlawfully, wilfully and knowingly publicly offered for sale and attempted to sell a pamphlet or circular entitled 'Judge Rutherford Uncovers Fifth Column,' on Sunday in violation of the above section of the Penal Law of The State of New York."

At the trial the petitioner admitted that he was in the village on the date mentioned "for the purpose of going from house to house and distributing Bible literature." From some persons he received contributions and money for the literature. If a person was unable to contribute he left a small book without charge (Rec., p. 2). In response to a question from the court he made the following admission (Rec., p. 2):

"Defendant admits that he offered the literature for sale, and in one instance one book was sold and in three instances he gave away books."

Apart from these admissions the only proof taken was on the question of whether the petitioner was an ordained minister. He testified that he had been an ordained minister of "Jehovah's Witnesses" for six years, though he had had no college or seminary training prior to being ordained (Rec., p. 3). He offered in evidence a certificate, signed by the "Watch Tower Bible and Tract Society, J. F. Rutherford, President," certifying that the petitioner was "an ordained minister of Jehovah God" and "one of Jehovah's Witnesses" (Deft's Ex. A, pp. 4-5). Fred N. Severud also testified that the petitioner was an ordained minister of Jehovah's Witnesses (Rec., p. 3).

No further proof was offered either by the prosecution or by the petitioner, except that the petitioner introduced in evidence a copy of the booklet which he admitted having offered for sale and sold (Rec., p. 3).

This booklet, marked in evidence as Defendant's Exhibit B, appears at pages 5-24 of the record. It is entitled "Judge Rutherford Uncovers Fifth Column,' and purports to consist chiefly of a reprint of an undated letter written by the said Rutherford to a representative of the New York Post. The booklet has for its subject-matter a violently inflammatory attack on the Roman Catholic church, and particularly the clergy of that church, described in the booklet as the "Roman Catholic Hierarchy."

The Roman Catholic clergy are characterized in the booklet as the representatives of the Devil (Rec., p. 14), and his "chief instrument on earth" (Rec., p. 10). They are described as "a political organization, bent on destroying everything that represents the interests of the common people" (Rec., p. 8), and are charged with "attempting to grab control of the nations of the earth" (Rec., p. 7). They are "fifth columnists" (Rec., p. 8), engaged in a secret confederacy with the Nazis, Fascists and Communists (Rec., pp. 10-11), and working in the United States in cooperation with Hitler and Mussolini (Rec., p. 19). They directed the development of Nazism in Germany and are employing the same methods in America (Rec., p. 10). They are engaged in a "fanatical, devilish procedure to destroy democracies, destroy freedom of press and freedom of speech, and destroy all publishers of the truth" (Rec., pp. 12-13). It is said that "their purpose is to seize the government of the United States" (Rec., p. 13). The cellars and crypts of their churches are loaded with guns and ammunition "ready to act against all opponents in due season" (Rec., p.

17). Stores of rifles have been smuggled into these crypts and cellars in piano boxes (Rec., p. 17). They are seeking to "bring the United States under the control of the Vatican" (Rec., p. 20). Theirs is "a great and hypocritical religious institution that has defamed His (God's) name and devoted its power to unrighteousness" (Rec., p. 18).

In his admissions made at the trial the petitioner characterized this booklet as "Bible literature" (Rec., p. 2). He employs the same descriptive term in his present petition (p.10). He alleges that he was "doing good unto others in calling upon them at their homes and offering to them helpful Bible explanations in printed form" (Petition, pp.10-11). Defendant's Exhibit B contains numerous biblical references, but a reading of the exhibit as a whole will show that it consists essentially of a violent attack upon the above-mentioned religious organization. The very title of the booklet discloses its purpose.

The foregoing is a summary of all the evidence in the case. At page 11 of the petition it is alleged that the petitioner testified that he was "commanded by Almighty God to go from house to house and from door to door with this literature, and that he did so from a sense of moral duty or a feeling of kindness for humanity" (Petition, p. 11). The petitioner gave no such testimony. Attention is drawn to the fact that in his affidavit on the application for leave to appeal to the County Court the petitioner gave a wholly inaccurate version of the testimony (Rec., pp.27-29); so much so, that it was necessary for the Police Justice to protest the contents of the affidavit in his return to the County Court (Rec., p.4).

The Statute

Section 2147 of the Penal Law reads as follows:

"PUBLIC TRAFFIC ON SUNDAY.

"All manner of public selling or offering for sale of any property upon Sunday is prohibited, except as follows:

"1. Articles of food may be sold, served, supplied and delivered at any time before ten o'clock in the morning;

"2. Meals may be sold to be eaten on the premises where sold at any time of the day;

"3. Caterers may serve meals to their patrons at any time of the day;

"4. Prepared tobacco, bread, milk, eggs, ice, soda-water, fruit, flowers, confectionery, souveniers, newspaper, gasoline, oil, tires, drugs, medicines and surgical instruments may be sold in places other than a room where spirituous or malt liquors or wines are kept or offered for sale and may be delivered at any time of the day.

"5. Delicatessen dealers and bakeries may sell, supply, serve and deliver cooked and prepared foods, between the hours of four o'clock in the afternoon and half-past seven o'clock in the evening, in addition to the time provided for in subdivision one hereof.

"The provisions of this section, however, shall not be construed to allow or permit the public sale or exposing for sale or delivery of uncooked flesh foods, or meats, fresh or salt, at any hour or time of the day. Delicatessen dealers shall not be considered as caterers within subdivision three hereof."

ARGUMENT

The statute as construed and applied in this case deprives the petitioner of no constitutional right.

Section 2147 of the Penal Law, under which the appellant was convicted, is a part of Article 192, entitled "Sabbath." The purpose of the New York Sabbath laws is stated as follows in section 2140:

"The Sabbath.

"The first day of the week being by general consent set apart for rest and religious uses, the law prohibits the doing on that day of certain acts hereinafter specified, which are serious interruptions of the repose and religious liberty of the community."

Section 2147 declares that "all manner of public selling or offering for sale of any property upon Sunday is prohibited." When the two sections are read together it will be seen that the Legislature has in effect determined and declared that public selling on the Sabbath is a "serious interruption of the rest and religious liberty of the community." It was competent for the Legislature to make such a determination and to prohibit such activities on Sunday. Statutes of this kind are in general a valid exercise of the police power of the states and within the Constitution.

Hennington v. Georgia, 163 U.S.299; Petit v. Minnesota, 177 U.S.164.

It is obvious that the activity in which the petitioner was engaged is not included within any of the express exceptions found in the statute. The petitioner contends,

however, that an exception in his favor is to be implied because the statute is directed only against the sale of commercial articles for profit. This contention is unfounded. Section 2140, supra, shows that the statute is directed against every activity calculated to interrupt the repose and religious liberty of the community. Evidently the Legislature was of the opinion that all public sales, whether for profit or not, are likely to disturb the peace of the community and should therefore fall within the prohibition.

Furthermore, the state courts have construed the statute as prohibiting the activities of the petitioner in this case. This court will accept the interpretation of the statute by the courts of the state which enacted it, and will only consider the question of whether the statute, as so interpreted, deprives the petitioner of rights guaranteed by the Constitution.

Saltonstall v. Saltonstall, 276 U.S.260;

Supreme Lodge, etc. v. Meyer, 265 U.S.30; Quong Ham Wah Co.v. Industrial Acc. Commission, 255 U.S.445.

The petitioner claims that the statute, as applied by the state courts, deprives him of his constitutional rights in that: (1) It denies him the right of religious freedom, and (2) it denies the right of freedom of the press. We will discuss each proposition separately.

(a) Religious Freedom

It is at least questionable whether the petitioner was engaged in any religious activity in distributing the pamphlet appearing in the record. In that very pamphlet appears the following assertion (Rec., p. 14):

"Jehovah's witnesses are not a sect, not a religious organization."

The case therefore presents the situation of an individual, concededly not a member of any religious sect or organization, engaged in the sale of a booklet attacking an established church. It is difficult to see how such a person can claim to be engaged in any religious work.

But assuming the truth of the petitioner's premise, the state may nevertheless properly subject him to the restrictions of its Sabbath laws. Within recent years this court has determined three cases involving the group known as Jehovah's Witnesses, and in all three the opinions contain language appropriate to the present case.

In Schneider v. State, 308 U.S.147, an ordinance prohibiting the distribution of circulars by house-to-house canvassing without a license from the police was held invalid. But the court said (p.165):

"Nor do we hold that the town may not fix reasonable hours when canvassing may be done by persons having such objects as the petitioner."

In Cantwell v. Connecticut, 310 U.S.296,the court held invalid a somewhat similar ordinance, prohibiting the solicitation of funds for a religious cause unless the object was first approved by a local official. But there the court said (p.305):

"The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to constitutional objection, even though the collection be for a religious purpose."

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