E THINK IT ONLY PROPER TO ADD THAT NEITHER THE HOUSING ACT PASSED BY

From the U.S. Government Printing Office via GPO Access

Case:   TUCKER V. TEXAS

Case #: 326US517


NO. 87.  ARGUED DECEMBER 6, 1945.  - DECIDED JANUARY 7, 1946.  -
REVERSED.


1.  A STATE CAN NOT, CONSISTENTLY WITH THE FREEDOM OF RELIGION AND THE
PRESS GUARANTEED BY THE FIRST AND FOURTEENTH AMENDMENTS, IMPOSE
CRIMINAL PUNISHMENT UPON A PERSON ENGAGED IN RELIGIOUS ACTIVITIES AND
DISTRIBUTING RELIGIOUS LITERATURE IN A VILLAGE OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM DESIGNED TO PROVIDE HOUSING FOR
WORKERS ENGAGED IN NATIONAL DEFENSE ACTIVITIES, WHERE THE VILLAGE IS
FREELY ACCESSIBLE AND OPEN TO THE PUBLIC AND HAS ALL THE
CHARACTERISTICS OF A TYPICAL AMERICAN TOWN, EVEN THOUGH THE PUNISHMENT
IS ATTEMPTED UNDER A STATE STATUTE MAKING IT UNLAWFUL FOR ANY "PEDDLER
OR HAWKER OF GOODS OR MERCHANDISE" WILLFULLY TO REFUSE TO LEAVE THE
PREMISES AFTER HAVING BEEN NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR
THEREOF.  P. 519.

2.  NEITHER THE FEDERAL HOUSING ACT NOR THE HOUSING AUTHORITY
REGULATIONS INDICATE A PURPOSE TO RESTRICT FREEDOM OF RELIGION AND OF
THE PRESS WITHIN VILLAGES SUCH AS THE ONE HERE INVOLVED.  P. 520.

3.  A JUDGMENT OF AN INTERMEDIATE STATE COURT SUSTAINING A STATE
STATUTE CHALLENGED AS REPUGNANT TO THE FEDERAL CONSTITUTION IS
REVIEWABLE HERE UNDER SEC. 237(A) OF THE JUDICIAL CODE, WHERE SUCH
INTERMEDIATE COURT IS THE HIGHEST COURT OF THE STATE IN WHICH A
DECISION IN THE CASE COULD BE HAD.  P. 518.

TUCKER V. TEXAS.

APPEAL FROM THE COUNTY COURT OF MEDINA COUNTY, TEXAS.

APPEAL FROM A JUDGMENT SUSTAINING A CONVICTION FOR VIOLATION OF A
STATE STATUTE CHALLENGED AS INVALID UNDER THE FEDERAL CONSTITUTION.

MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.

THE APPELLANT WAS CHARGED IN THE JUSTICE COURT OF MEDINA COUNTY,
TEXAS, WITH VIOLATING ARTICLE 479, CHAP. 3 OF THE TEXAS PENAL CODE
WHICH MAKES IT AN OFFENSE FOR ANY "PEDDLER OR HAWKER OF GOODS OR
MERCHANDISE" WILFULLY TO REFUSE TO LEAVE PREMISES AFTER HAVING BEEN
NOTIFIED TO DO SO BY THE OWNER OR POSSESSOR THEREOF.  THE APPELLANT
URGED IN HIS DEFENSE THAT HE WAS NOT A PEDDLER OR HAWKER OF
MERCHANDISE, BUT A MINISTER OF THE GOSPEL ENGAGED IN THE DISTRIBUTION
OF RELIGIOUS LITERATURE TO WILLING RECIPIENTS.  HE CONTENDED THAT TO
CONSTRUE THE TEXAS STATUTE AS APPLICABLE TO HIS ACTIVITIES WOULD, TO
THAT EXTENT, BRING IT INTO CONFLICT WITH THE CONSTITUTIONAL GUARANTEES
OF FREEDOM OF PRESS AND RELIGION.  HIS CONTENTION WAS REJECTED AND HE
WAS CONVICTED.  ON APPEAL TO THE MEDINA COUNTY COURT, HIS
CONSTITUTIONAL CONTENTION WAS AGAIN OVERRULED.  SINCE HE COULD NOT
APPEAL TO A HIGHER STATE COURT THIS APPEAL UNDER SEC. 237(A) OF THE
JUDICIAL CODE, 28 U.S.C. 344(A) IS PROPERLY BEFORE US.  LARGENT V.
TEXAS, 318 U.S. 418.

THE FACTS SHOWN BY THE RECORD NEED BE BUT BRIEFLY STATED.  APPELLANT
IS AN ORDAINED MINISTER OF THE GROUP KNOWN AS JEHOVAH'S WITNESSES.  IN
ACCORDANCE WITH THE PRACTICES OF THIS GROUP HE CALLS ON PEOPLE FROM
DOOR TO DOOR, PRESENTS HIS RELIGIOUS VIEWS TO THOSE WILLING TO LISTEN,
AND DISTRIBUTES RELIGIOUS LITERATURE TO THOSE WILLING TO RECEIVE IT.
IN THE COURSE OF HIS WORK, HE WENT TO THE HONDO NAVIGATION VILLAGE
LOCATED IN MEDINA COUNTY, TEXAS.  THE VILLAGE IS OWNED BY THE UNITED
STATES UNDER A CONGRESSIONAL PROGRAM WHICH WAS DESIGNED TO PROVIDE
HOUSING FOR PERSONS ENGAGED IN NATIONAL DEFENSE ACTIVITIES.  42 U.S.C.,
SECS. 1521-1553.  ACCORDING TO ALL INDICATIONS THE VILLAGE WAS FREELY
ACCESSIBLE AND OPEN TO THE PUBLIC AND HAD THE CHARACTERISTICS OF A
TYPICAL AMERICAN TOWN.  THE FEDERAL PUBLIC HOUSING AUTHORITY HAD PLACED
THE BUILDINGS IN CHARGE OF A MANAGER WHOSE DUTY IT WAS TO RENT THE
HOUSES, COLLECT THE RENTS, AND GENERALLY TO SUPERVISE OPERATIONS,
SUBJECT TO OVER-ALL CONTROL BY THE AUTHORITY.  HE ORDERED APPELLANT TO
DISCONTINUE ALL RELIGIOUS ACTIVITIES IN THE VILLAGE.  APPELLANT
REFUSED.  LATER THE MANAGER ORDERED APPELLANT TO LEAVE THE VILLAGE.
INSISTING THAT THE MANAGER HAD NO RIGHT TO SUPPRESS RELIGIOUS
ACTIVITIES, APPELLANT DECLINED TO LEAVE, AND HIS ARREST FOLLOWED.  AT
THE TRIAL THE MANAGER TESTIFIED THAT THE CONTROLLING FEDERAL AGENCY HAD
GIVEN HIM FULL AUTHORITY TO REGULATE THE CONDUCT OF THOSE LIVING IN THE
VILLAGE, AND THAT HE DID NOT ALLOW PREACHING BY MINISTERS OF ANY
DENOMINATION WITHOUT A PERMIT ISSUED BY HIM IN HIS DISCRETION.  HE
THOUGHT THIS BROAD AUTHORITY WAS ENTRUSTED TO HIM, AT LEAST IN PART, BY
A REGULATION, WHICH THE AUTHORITY'S WASHINGTON OFFICE HAD ALLEGEDLY
PROMULGATED.  HE TESTIFIED THAT THIS REGULATION PROVIDED THAT NO
PEDDLERS OR HAWKERS COULD COME INTO OR REMAIN IN THE VILLAGE WITHOUT
GETTING PERMISSION FROM THE MANAGER.  FN1  SINCE THE TEXAS COURT HAS
DEEMED THIS EVIDENCE OF AUTHORITY OF THE MANAGER TO SUPPRESS
APPELLANT'S ACTIVITIES SUFFICIENT TO SUPPORT A CONVICTION UNDER THE
STATE STATUTE, WE ACCEPT THEIR HOLDING IN THIS RESPECT FOR THE PURPOSES
OF THIS APPEAL.

THE FOREGOING STATEMENT OF FACTS SHOWS THEIR CLOSE SIMILARITY TO THE
FACTS WHICH LED US THIS DAY TO DECIDE IN MARSH V. ALABAMA, ANTE, P.
501, THAT MANAGERS OF A COMPANY-OWNED TOWN COULD NOT BAR ALL
DISTRIBUTION OF RELIGIOUS LITERATURE WITHIN THE TOWN, OR CONDITION
DISTRIBUTION UPON A PERMIT ISSUED AT THE DISCRETION OF ITS MANAGEMENT.
THE ONLY DIFFERENCE BETWEEN THIS CASE AND MARSH V. ALABAMA IS THAT HERE
INSTEAD OF A PRIVATE CORPORATION, THE FEDERAL GOVERNMENT OWNS AND
OPERATES THE VILLAGE.  THIS DIFFERENCE DOES NOT AFFECT THE RESULT.
CERTAINLY NEITHER CONGRESS NOR FEDERAL AGENCIES ACTING PURSUANT TO
CONGRESSIONAL AUTHORIZATION MAY ABRIDGE THE FREEDOM OF PRESS AND
RELIGION SAFEGUARDED BY THE FIRST AMENDMENT.  TRUE, UNDER CERTAIN
CIRCUMSTANCES IT MIGHT BE PROPER FOR SECURITY REASONS TO ISOLATE THE
INHABITANTS OF A SETTLEMENT, SUCH AS HONDO VILLAGE, WHICH HOUSES
WORKERS ENGAGED IN PRODUCING WAR MATERIALS.  BUT NO SUCH NECESSITY AND
NO SUCH INTENTION ON THE PART OF CONGRESS OR THE PUBLIC HOUSING
AUTHORITY ARE SHOWN HERE.

IT FOLLOWS FROM WHAT WE HAVE SAID THAT TO THE EXTENT THAT THE TEXAS
STATUTE WAS HELD TO AUTHORIZE APPELLANT'S PUNISHMENT FOR REFUSING TO
REFRAIN FROM RELIGIOUS ACTIVITIES IN HONDO VILLAGE IT IS AN INVALID
ABRIDGEMENT OF THE FREEDOM OF PRESS AND RELIGION.

WE THINK IT ONLY PROPER TO ADD THAT NEITHER THE HOUSING ACT PASSED BY
CONGRESS NOR THE HOUSING AUTHORITY REGULATIONS CONTAIN LANGUAGE
INDICATING A PURPOSE TO BAR FREEDOM OF PRESS AND RELIGION WITHIN
VILLAGES SUCH AS THE ONE HERE INVOLVED.  THE CASE IS REVERSED AND THE
CAUSE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS
OPINION.  REVERSED AND REMANDED.

FN1  THE AVAILABLE REGULATIONS OF THE AUTHORITY, OF WHICH WE CAN TAKE
JUDICIAL NOTICE, BOWLES V. UNITED STATES, 319 U.S. 33, 35, DO NOT SHOW
A REGULATION OF THIS KIND.

MR. JUSTICE JACKSON TOOK NO PART IN THE CONSIDERATION OR DECISION OF
THIS CASE.

MR. JUSTICE FRANKFURTER, CONCURRING.

IT WILL BE TIME ENOUGH TO CONSIDER THE CONSTITUTIONALITY OF AN ACT OF
CONGRESS THAT IS CLAIMED TO BE IN DEFIANCE OF THE FIRST AMENDMENT WHEN
SUCH LEGISLATION BY CONGRESS CONFRONTS US WITH THE PROBLEM.  THE
PRESENT CASE DOES NOT PRESENT SUCH A SITUATION.  SUBJECT TO THIS
RESERVATION, I AGREE WITH THE OPINION OF THE COURT FOR THE REASONS
BRIEFLY STATED IN MARSH V. ALABAMA, ANTE, P. 510.  IN THE CASE OF
COMMUNITIES ESTABLISHED UNDER THE SPONSORSHIP OF THE UNITED STATES BY
VIRTUE OF ITS SPENDING POWER, IT WOULD, I SHOULD THINK, BE EVEN LESS
DESIRABLE THAN IN THE CASE OF COMPANY TOWNS TO MAKE THE CONSTITUTIONAL
FREEDOMS OF RELIGION AND SPEECH TURN ON GOSSAMER DISTINCTIONS ABOUT THE
EXTENT TO WHICH LAND HAS BEEN "DEDICATED" TO PUBLIC USES.

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON,
DISSENTING.

THE CHIEF JUSTICE, MR. JUSTICE REED AND MR. JUSTICE BURTON CONSTRUE
THE RECORD IN THIS CASE AS SHOWING A CONVICTION FOR REFUSING, AT THE
REQUEST OF ITS AUTHORIZED AGENT, TO LEAVE PREMISES WHICH ARE OWNED BY
THE UNITED STATES AND WHICH HAVE NOT BEEN SHOWN TO BE DEDICATED TO
GENERAL USE BY THE PUBLIC.  WE, THEREFORE, WOULD AFFIRM THE CONVICTION
FOR THE REASONS GIVEN IN THE DISSENT IN MARSH V. ALABAMA, ANTE, P.
511.