Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Before BIGGS, MARIS, JONES, and GOODRICH, Circuit Judges.
The plaintiffs,*fn1 members of a sect known as Jehovah's Witnesses, brought suit in the district court for themselves and "for all Jehovah's Witnesses throughout the entire Commonwealth of Pennsylvania and adjoining states" to enjoin the defendant city of Jeannette and its Mayor from enforcing against them and other members of the Jehovah's Witnesses a certain ordinance of that city, which is a municipal corporation organized under the laws of Pennsylvania. After hearing, the court below concluded that the ordinance, as applied by the municipality's officers to the activities of the Jehovah's Witnesses, worked a deprivation of their freedom of worship, of speech and of press in violation of the Fourteenth Amendment of the Constitution of the United States. Accordingly, the court entered the decree from which the defendants took the instant appeal.
The appeal raises two questions, (1) whether the District Court had jurisdiction of the cause, and (2) whether the ordinance is unconstitutional as applied to the activities of the plaintiffs and others of the Jehovah's Witnesses.
In part here material, the ordinance*fn2 provides that all persons canvassing for or soliciting orders, within the city of Jeannette, for goods, wares and merchandise of any kind shall procure from the Mayor of that city a license, paying therefor to the city's Treasurer a fee of $1.50 a day with relative reductions in the per diem rates for longer term licenses.
The Jehovah's Witnesses are an unincorporated body of persons who profess themselves to be acting in obedience to the commands of Almighty God as revealed by the Bible. Each of the members of the group asserts that he is an ordained minister and that he is required by his faith to give witness to the name, honor and majesty of Almighty God by preaching the gospel, as understood by them, upon the streets of communities, and by distributing certain literature, for a specified contribution, to people upon the streets and in their homes. The literature, which is published or issued by the Watchtower Bible and Tract Society, Inc., a New York corporation, is in the form of books, pamphlets and periodicals, and is intended to inform and persuade the persons receiving it of the merit of the religious beliefs of Jehovah's Witnesses, who personally and in the literature strongly attack the religious practices of organized churches existing today.
The plaintiffs, along with other members of the Jehovah's and upon going from city of Jeannette, and upon going from house to house, played on portable phonographs records of matter which they desired to impart to their auditors, to whom they then offered the books and pamphlets of the sect in exchange for a contribution, so-called, of twenty-five cents for a book and five cents for a pamphlet or two. There is evidence that at times one or more of the publications were given free if the particular auditor appeared to be interested but was without the means to make the requested contribution. Such gratuitous distribution was necessarily limited as the solicitors are required to pay the Watchtower Bible and Tract Society for the literature which they distribute. The publications were also offered on like conditions to people upon the streets of the city.
In March 1939, the city officials of Jeannette notified the Jehovah's Witnesses that it was necessary for them to procure licenses, as provided by the ordinance, if they desired to solicit from house to house, and that, failing so to comply, they would be arrested for violating the ordinance. On April 2, 1939, a letter signed by some fifty members of the Witnesses, including most of the plaintiffs, was delivered to the police and Mayor of Jeannette informing them that they refused and would continue to refuse to obtain licenses on the ground that they were not peddlers but ministers of Jehovah God doing their work in obedience to His explicit command and that for them to seek a permit to do what they were so commanded would be an insult to the Creator as His law is supreme and above all human law.
Having thus refused to procure licenses, a number of the Jehovah's Witnesses renewed their door to door canvassing and soliciting in the city of Jeannette on April 2, 1939. On that occasion (a Sunday) more than one hundred of them came into the city and proceeded to canvass and solicit from house to house throughout the day.During that visitation the time of the city's police and firemen was preempted in receiving and investigating numerous complaints from citizens because of the activities of the Witnesses, twenty-one of whom were arrested at that time for violating the ordinance.Eighteen of those arrested were held for a hearing before the Mayor's court, where they were convicted of the violations charged. Appeals to the Quarter Sessions Court of the local jurisdiction (Westmoreland County) from the convictions in the Mayor's court were dismissed because of the appellants' failure to attach transcripts of the records of conviction in the Mayor's court and, also, because of a decision by the Pennsylvania Superior Court (City of Pittsburgh v. Ruffnr, 134 Pa.Super. 192, 4 A.2d 224) upholding the validity and like enforcement of a somewhat similar ordinance. A joint appeal to the Pennsylvania Superior Court from the judgments of the Quarter Sessions Court was also dismissed because the record presented no basis for holding that there had been an abuse of discretion on the part of the Quarter Sessions Court.*fn3 An appeal to the Supreme Court of Pennsylvania from the judgment of the Superior Court was likewise refused.*fn4 The defendants then petitioned the Supreme Court of the United States for certiorari, which was denied, as was also their petition for rehearing.*fn5
Since April 1939 the Jehovah's Witnesses have continued their house to house canvass in the city of Jeannette, offering their literature and soliciting contributions. At no time have they applied for or procured licenses as required by the ordinance, and arrests and convictions for violations of the ordinance continued. Exclusive of the twenty-one arrests made on April 2, 1939, more than thirty arrests were made from then until February 1940, when the latest arrests were made. Appeals from convictions on the later arrests are still pending in the Quarter Sessions Court of Westmoreland County, Pennsylvania. It was in that situation that the suit for an injunction was instituted in the court below.
We shall consider first the question whether the district court had jurisdiction of the cause of action. The complaint alleges that jurisdiction exists under and by virtue of the Civil Rights Act of 1871, now Section 1979 Revised Statutes, 8 U.S.C.A. § 43,*fn6 which confers a personal right of action at law or in equity for the redress of "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws", and Section 24(14) of the Judicial Code, 28 U.S.C.A. § 41(14),*fn7 which confers upon the district courts jurisdiction of suits brought under the authority of Section 1979 Revised Statutes.*fn8 The rights of which the plaintiffs allege they have been deprived by the defendants under color of the ordinance in question are their rights to freedom of speech, freedom of the press, freedom of assembly and freedom of relisious worship. In paragraph 17 of the complaint.*fn9 it is expressly averred that the ordinance has been applied by the defendants against the plaintiffs so as to deprive them of these rights "contrary to the Federal Constitution, Fourteenth Amendment, Section 1." Since these rights are not privileges or immunities of national citizenship*fn10 and since a denial of the equal protection of the laws is not involved, the reference must necessarily be to the provision of the Fourteenth Amendment that no state shall "deprive any person of * * * liberty * * * without due process of law."
Freedom of worship, freedom of speech, freedom of the press, and the right of assembly are not the subject of direct constitutional grant. They are, however, constitutionally recognized and confirmed as attributes of liberty incident to all persons under the Constitution and laws of the United States regardless of their citizenship; and, as such, they are secured by the First Amendment against abridgment by the Congress, and by the Fourteenth Amendment against deprivation by a state without due process of law.*fn11 It is now settled that they are rights "secured" by the Constitution within the meaning of Section 1979 Revised Statutes and Section 24(14) of the Judicial Code.*fn12 It follows that if the complaint sufficiently alleges deprivation of these rights without due process of law the jurisdiction of the district court must be sustained, since jurisdiction to hear a suitor's complaint depends upon what he states his complaint to be and not upon whether at the hearing he is able to establish its merit.*fn13 For were we to hold that jurisdiction exists only if the proven facts justify the conclusion that there has been a deprivation of liberty without due process of law it would necessarily follow that in every such case the court would have to hear and decide the merits of the controversy before deciding whether it had power to hear and decide the merits. This would be a manifest absurdity.
The complaint, as we have seen, merely alleges in effect that the plaintiffs have been deprived of their liberty without due process of law. The due process of law which is claimed to have been absent is in no way spelled out. This, it is urged, renders the complaint insufficient to establish jurisdiction. It is said that the facts showing a want of due process should have been alleged. But we think they need not, indeed cannot, be set out where substantive rather than procedural rights are concerned. The impossibility of particularizing the absence of due process of law in pleading a violation of the due process clause as the basis for the jurisdiction of the district court is due primarily to the undefined and ever changing character of the concept involved. An examination of the cases discloses that the Supreme Court has consistently refused to attempt a comprehensive definition of what is meant by due process of law.*fn14 Such definitions as it has formulated have been so restricted to the facts of the particular cases before it as to render them inapplicable as statements of general principles. Then also for many years after the inclusion of the due process clause in the Fourteenth Amendment the cases were concerned with due process of law solely in its procedural aspect. Indeed this was so generally the case that it was at one time thought that the due process clause applied only to procedural rights.*fn15 Gradually, however, the scope of the phrase was ...