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.
On the same day a summons was issued and served by the Chief of Police commanding appellant to appear
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,
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, 346, and cases cited. See also Schuylkill Trust Co. v. Pennsylvania, 296 U.S. 113, 122-123, and Lovell v. Griffin, 303 U.S. 444, 450. As Mr. Justice Holmes said in Davis v. Wechsler, 263 U.S. 22, 24, "Whatever springes the State may set
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, 562; Lovell v. Griffin, 303 U.S. 444, 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, 602, dissenting opinion, adopted per curiam on rehearing, 319 U.S. 103, 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
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.
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."
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, 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:
To the same effect are Lovell v. Griffin, supra, at 451, 452;
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
An ordinance of the City of Baxley, Georgia,
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
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
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, 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, 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, 361-362; 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, 289-290; it may be valid at one time and not another, see Chastleton Corp. v. Sinclair, 264 U.S. 543, 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, 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, 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
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.2d 378; a single named "lengthy section" of a statute, Crapp v. State, 148 Ga. 150,
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.
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, 24-25, it should not be refused applicability. There is no indication whatever in the case before us that
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
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, 281; Newman v. Gates, 204 U.S. 89; Chesapeake & Ohio Railway Co. v. McDonald, 214 U.S. 191, 195." John v. Paullin, 231 U.S. 583, 585.
The appeal should be dismissed.
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
"(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
"(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 law-making 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
"(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."
"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 residence of applicant for past ten 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."
"[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).
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, 630.