Murdock v. Pennsylvania, 319 U.S. 105 (1943)

The dissenting opinions of Mr. Justice REED and Mr. Justice FRANKFURTER in Jones v. City of Opelika, 63 S.Ct. at page 891 cover these cases also.

For dissenting opinion of Mr. Justice JACKSON, see 63 S.Ct. 882.

These cases present for solution the problem of the constitutionality of certain municipal ordinances levying a tax for the production of revenue on the sale of books [319 U.S. 105, 118]  and pamphlets in the streets or from door to door. Decisions sustaining the particular ordinances were entered in the three cases first listed at the last term of this Court. In that opinion the ordinances were set out and the facts and issues stated. Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 141 A.L.R. 514. A rehearing has been granted. The present judgments vacate the old and invalidate the ordinances. The eight cases of this term involve canvassing from door to door only under similar ordinances, which are in the form stated in the Court's opinion. By a per curiam opinion of this day, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. --, the Court affirms its acceptance of the arguments presented by the dissent of last term in Jones v. Opelika. The Court states its position anew in the Jeannette cases. 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. --.

This dissent does not deal with an objection which theoretically could be made in each case, to wit, that the licenses are so excessive in amount as to be prohibitory. This matter is not considered because that defense is not relied upon in the pleadings, the briefs or at the bar. No evidence is offered to show the amount is oppressive. An unequal tax, levied on the activities of distributors of informatory publications, would be a phase of discrimination against the freedom of speech, press or religion. Nor do we deal with discrimination against the petitioners, as individuals or as members of the group, calling themselves Johovah's witnesses. There is no contention in any of these cases that such discrimination is practiced in the application of the ordinances. Obviously an improper application by a city, which resulted in the arrest of witnesses and failure to enforce the ordinance against other groups, such as the Adventists, would raise entirely distinct issues.

A further and important disclaimer must be made in order to focus attention sharply upon the constitutional issue. This dissent does not express, directly or by inference, any conclusion as to the constitutional rights of state or federal governments to place a privilege tax upon the [319 U.S. 105, 119]  soliciting of a free-will contribution for religious purposes. Petitioners suggest that their books and pamphlets are not sold but are given either without price or in appreciation of the recipient's gift for the furtherance of the work of the witnesses. The pittance sought, as well as the practice of leaving books with poor people without cost, gives strength to this argument. In our judgment, however, the plan of national distribution by the Watch Tower Bible & Tract Society, with its wholesale prices of five or twenty cents per copy for books, delivered to the public by the witnesses at twenty-five cents per copy, justifies the characterization of the transaction as a sale by all the state courts. The evidence is conclusive that the witnesses normally approach a prospect with an offer of a book for twenty-five cents. Sometimes, apparently rarely, a book is left with a prospect without payment. The quid pro quo is demanded. If the profit was greater, twenty cents or even one dollar, no difference in principle would emerge. The witness sells books to raise money for propagandising his faith, just as other religious groups might sponsor bazaars or peddle tickets to church suppers or sell Bibles or prayer books for the same object. However high the purpose or noble the aims of the witness, the transaction has been found by the state courts to be a sale under their ordinances and, though our doubt was greater than it is, the state's conclusion would influence us to follow its determination.[1] [319 U.S. 105, 120]  In the opinion in Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1231, 141 A.L.R. 514, on the former hearing, attention was called to the differentiation between these cases of taxation and those of forbidden censorship, prohibition or discrimination. There is no occasion to repeat what has been written so recently as to the constitutional right to tax the money raising activities of religious or didactic groups. There are, however, other reasons not fully developed in that opinion that add to our conviction that the Constitution does not prohibit these general occupational taxes.

The real contention of the witnesses is that there can be no taxation of the occupation of selling books and pamphlets because to do so would be contrary to the due process clause of the Fourteenth Amendment, which now is held to have drawn the contents of the First Amendment into the category of individual rights protected [319 U.S. 105, 121]  from state deprivation. Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630; Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 708; Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 903, 128 A.L.R. 1352. Since the publications teach a religion which conforms to our standards of legality, it is urged that these ordinances prohibit the free exercise of religion and abridge the freedom of speech and of the press.

The First Amendment reads as follows: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'

It was one of twelve proposed on September 25, 1789, to the States by the First Congress after the adoption of the Constitution. Ten were ratified. They were intended to be and have become our Bill of Rights. By their terms our people have a guarantee that so long as law as we know it shall prevail, they shall live protected from the tyranny of the despot or the mob. None of the provisions of our Constitution is more venerated by the people or respected by legislatures and the courts than those which proclaim for our country the freedom of religion and expression. While the interpreters of the Constitution find the purpose was to allow the widest practical scope for the exercise of religion and the dissemination of information, no jurist has ever conceived that the prohibition of interference is absolute.[2] Is subjection to nondiscriminatory, nonexcessive taxation in the distribution of religious literature, a prohibition of the exercise of religion or an abridgment of the freedom of the press? [319 U.S. 105, 122]  Nothing has been brought to our attention which would lead to the conclusion that the contemporary advocates of the adoption of a Bill of Rights intended such an exemption. The words of the Amendment do not support such a construction. 'Free' cannot be held to be without cost but rather its meaning must accord with the freedom guaranteed. 'Free' means a privilege to print or pray without permission and without accounting to authority for one's actions. In the Constitutional Convention the proposal for a Bill of Rights of any kind received scant attention.[3] In the course of the ratification of the Constitution, however, the absence of a Bill a Rights was used vigorously by the opponents of the new government. A number of the states suggested amendments. Where these suggestions have any bearing at all upon religion or free speech, they indicate nothing as to any feeling concerning taxation either of religious bodies or their evangelism.[4] This was not because freedom of [319 U.S. 105, 123]  religion or free speech was not understood. It was because the subjects were looked upon from standpoints entirely distinct from taxation.[5]

The available evidence of Congressional action shows clearly that the draftsmen of the amendments had in mind the practice of religion and the right to be heard, rather than any abridgment or interference with either by taxation [319 U.S. 105, 124]  in any form.[6] The amendments were proposed by [319 U.S. 105, 125]   Mr. Madison. He was careful to explain to the Congress the meaning of the amendment on religion. The draft was commented upon by Mr. Madison when it read: 'No religion shall be established by law, nor shall the equal rights of conscience be infringed.' 1 Annals of Congress 729.

He said that he apprehended the meaning of the words on religion to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Id., 730. No such specific interpretation of the amendment on freedom of expression has been found in the debates. The clearest is probably from Mr. Benson[7] who said that 'The committee who framed this report proceeded on the principle that these rights belonged to the people; they conceived them to be inherent; and all that they meant to provide against was their being infringed by the Government.' Id., 731, 732.

There have been suggestions that the English taxes on newspapers, springing from the tax act of 10 Anne, c. 19, Sec. CI,[8] influenced the adoption of the First Amendment.[9]  [319 U.S. 105, 126]  These taxes were obnoxious but an examination of the sources of the suggestion is convincing that there is nothing to support it except the fact that the tax on newspapers was in existence in England and was disliked.[10] The simple answer is that if there had been any purpose of Congress to prohibit any kind of taxes on the press its knowledge of the abominated English taxes would have led it to ban them unequivocally.

It is only in recent years that the freedoms of the First Amendment have been recognized as among the fundamental personal rights protected by the Fourteenth Amendment from impairment by the states.[11] Until then these liberties were not deemed to be guarded from state action by the Federal Constitution.[12] The states placed [319 U.S. 105, 127]  restraints upon themselves in their own constitutions in order to protect their people in the exercise of the freedoms of speech and of religion.[13] Pennsylvania may be taken as a fair example. Its constitution reads: 'All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience and no preference shall ever be given by law to any religious establishments or modes of worship.' Purdon's Penna.Stat.Const., Art. I, Sec. 3.

'No person who acknowledges the being of a God, and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.' Id., Art. I, Sec. 4.

'The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. ...' Id., Art. I, Sec. 7.

It will be observed that there is no suggestion of freedom from taxation, and this statement is equally true of the other state constitutional provisions. It may be concluded that neither in the state or the federal constitutions was general taxation of church or press interdicted.

Is there anything in the decisions of this Court which indicates that church or press is free from the financial [319 U.S. 105, 128]  burdens of government? We find nothing. Religious societies depend for their exemptions from taxation upon state constitutions or general statutes, not upon the Federal Constitution. Gibbons v. District of Columbia, 116 U.S. 404, 6 S.Ct. 427. This Court has held that the chief purpose of the free press guarantee was to prevent previous restraints upon publication. Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 630.[14] In Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, it was said that the predominant purpose was to preserve 'an untrammeled press as a vital source of public information.' In that case, a gross receipt tax on advertisements in papers with a circulation of more than twenty thousand copies per week was held invalid because 'a deliberate and calculated device in the guise of a tax to limit the circulation ....' There was this further comment: 'It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government. But this is not an ordinary form of tax, but one single in kind, with a long history of hostile misuse against the freedom of the press.' Id., 297 U.S. 250, 56 S.Ct. 449.

It may be said, however, that ours is a too narrow, technical and legalistic approach to the problem of state taxation of the activities of church and press; that we should look not to the expressed or historical meaning of the First Amendment but to the broad principles of free speech and free exercise of religion which pervade our national way of life. It may be that the Fourteenth Amendment guarantees these principles rather than the more definite concept expressed in the First Amendment. This would mean that as a Court, we should determine what sort of liberty it is that the due process clause of [319 U.S. 105, 129]   the Fourteenth Amendment guarantees against state restrictions on speech and church.

But whether we give content to the literal words of the First Amendment or to principles of the liberty of the press and the church, we conclude that cities or states may levy reasonable, non-discriminatory taxes on such activities as occurred in these cases. Whatever exemptions exist from taxation arise from the prevailing law of the various states. The constitutions of Alabama and Pennsylvania, with substantial similarity to the exemption provisions of other constitutions, forbid the taxation of lots and buildings used exclusively for religious worship. Alabama (1901), sec. 91; Pennsylvania (1874), Art. IX, sec. 1 P.S. These are the only exemptions of the press or church from taxation. We find nothing more applicable to our problem in the other constitutions. Surely this unanimity of specific state action on exemptions of religious bodies from taxes would not have occurred throughout our history, if it had been conceived that the genius of our institutions, as expressed in the First Amendment, was incompatible with the taxation of church or press.

Nor do we understand that the Court now maintains that the Federal Constitution frees press or religion of any tax except such occupational taxes as those here levied. Income taxes, ad valorem taxes, even occupational taxes are presumably valid, save only a license tax on sales or religious books. Can it be that the Constitution permits a tax on the printing presses and the gross income of a metropolitan newspaper[15] but denies the right to lay an occupational tax on the distributors of the same papers? Does the exemption apply to booksellers or distributors of magazines or only to religious publications? And if the latter to what distributors? Or to what books? Or is this Court saying that a religious [319 U.S. 105, 130]  practice of book distribution is free from taxation because a state cannot prohibit the 'free exercise thereof' and a newspaper is subject to the same tax even though the same Constitutional Amendment says the state cannot abridge the freedom of the press? It has never been thought before that freedom from taxation was a perquisite attaching to the privileges of the First Amendment. The national Government grants exemptions to ministers and churches because it wishes to do so, not because the Constitution compels. Internal Revenue Code, 22(b)(6), 101(6), 812(d), 1004(a)(2)(B), 26 U.S.C.A. Int.Rev.Code 22(b)(6), 101(6), 812(d), 1004( a)(2) (B). Where camp meetings or revivals charge admissions, a federal tax would apply if Congress had not granted freedom from the exaction. Id ., 1701, 26 U.S.C.A. Int.Rev.Code 1701.

It is urged that such a tax as this may be used readily to restrict the dissemination of ideas. This must be conceded by the possibility of misuse does not make a tax unconstitutional. No abuse is claimed here. The ordinances in some of these cases are the general occupation license type covering many businesses. In the Jeannette prosecutions, the ordinance involved lays the usual tax on canvassing or soliciting sales of goods, wares and merchandise. It was passed in 1898. Every power of taxation or regulation is capable of abuse. Each one to some extent prohibits the free exercise of religion and abridges the freedom of the press but that is hardly a reason for denying the power. If the tax is used oppressively the law will protect the victims of such action.

This decision forces a tax subsidy notwithstanding our accepted belief in the separation of church and state. Instead of all bearing equally the burdens of government, this Court now fastens upon the communities the entire cost of policing the sales of religious literature. That the burden may be heavy is shown by the record in the Jeannette cases. There are only eight prosecutions but one hundred and four witnesses solicited in Jeannette the day [319 U.S. 105, 131]  of the arrests. They had been requested by the authorities to await the outcome of a test case before continuing their canvassing. The distributors of religious literature, possibly of all informatory publications, become today privileged to carry on their occupations without contributing their share to the support of the government which provides the opportunity for the exercise of their liberties.

Nor do we think it can be said, properly, that these sales of religious books are religious exercises. The opinion of the Court in the Jeannette cases emphasizes for the first time the argument that the sale of books and pamphlets is in itself a religious practice. The Court says the witnesses 'spread their interpretations of the Bible and their religious beliefs largely through the hand distribution of literature by full or part time workers,' 'The hand distribution of religious tracts is an age-old form of missionary evangelism – as old as the history of printing presses.' 'It is more than preaching; it is more than distribution of religious literature. It is a combination of both. Its purpose is as evangelical as the revival meeting. This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits.' 'Those who can tax the exercise of his religious practice can make its exercise so costly as to dep rive it of the resources necessary for its maintenance.' 'The judgment in Jones v. Opelika has this day been vacated. Freed from that controlling precedent, we can restore to their high, constitutional position the liberties of itinerant evangelists who disseminate their religious beliefs and the tenets of their faith through distribution of literature.' The record shows that books entitled 'Creation' and 'Salvation', as well as Bibles, were offered for sale. We shall assume the first two publications, also, are religious books. Certainly there can be no dissent from the statement that [319 U.S. 105, 132]  selling religious books is an age-old practice or that it is evangelism in the sense that the distributors hope the readers will be spiritually benefited. That does not carry us to the conviction, however, that when distribution of religious books is made at a price, the itinerant colporteur is performing a religious rite, is worshipping his Creator in his way. Many sects practice healing the sick as an evidence of their religious faith or maintain orphanages or homes for the aged or teach the young. These are, of course, in a sense, religious practices but hardly such examples of religious rites as are encompassed by the prohibition against the free exercise of religion.

And even if the distribution of religious books was a religious practice protected from regulation by the First Amendment, certainly the affixation of a price for the articles would destroy the sacred character of the transaction. The evangelist becomes also a book agent.

The rites which are protected by the First Amendment are in essence spirtual – prayer, mass, sermons, sacrament – not sales of religious goods. The card furnished each witness to identify him as an ordained minister does not go so far as to say the sale is a rite. It states only that the witnesses worship by exhibiting to people 'the message of said gospel in printed form, such as the Bible, books, booklets and magazines, and thus afford the people the opportunity of learning of God's gracious provision for them.' On the back of the card appears: 'You may contribute twenty-five cents to the Lord's work and receive a copy of this beautiful book.' The sale of these religious books has, we think, relation to their religious exercises, similar to the 'information march,' said by the witnesses to be one of their 'ways of worship' and by this Court to be subject to regulation by license in Cox v. New Hampshire, 312 U.S. 569, 572, 573 S., 576, 61 S.Ct. 762, 764, 765, 766, 133 A.L.R. 1396.

The attempted analogy in the dissenting opinion in Jones v. Opelika, 316 U.S. 584, 609, 611 S., 62 S.Ct. 1231, 1244, 1245, 141 A.L. R. 514, which now becomes [319 U.S. 105, 133]  the decision of this Court, between the forbidden burden of a state tax for the privilege of engaging in interstate commerce and a state tax on the privilege of engaging in the distribution of religious literature is wholly irrelevant. A state tax on the privilege of engaging in interstate commerce is held invalid because the regulation of commerce between the states has been delegated to the Federal Government. This grant includes the necessary means to carry the grant into effect and forbids state burdens without Congressional consent.[16] It is not the power to tax interstate commerce which is interdicted but the exercise of that power by an unauthorized sovereign, the individual state. Although the fostering of commerce was one of the chief purposes for organizing the present Government, that commerce may be burdened with a tax by the United States. Internal Revenue Code, 3469, 26 U.S.C.A. Int.Rev.Code 3469. Commerce must pay its way. It is not exempt from any type of taxation if imposed by an authorized authority. The Court now holds that the First Amendment wholly exempts the church and press from a privilege tax, presumably by the national as well as the state governments.

The limitations of the Constitution are not maxims of social wisdom but definite controls on the legislative process. We are dealing with power, not its abuse. This late withdrawal of the power of taxation over the distribution activities of those covered by the First Amendment fixes what seems to us an unfortunate principle of tax exemption, capable of indefinite extension. We had thought that such an exemption required a clear and certain grant. This we do not find in the language of the First and Fourteenth Amendments. We are therefore of the opinion the judgments below should be affirmed. [319 U.S. 105, 134]  Mr. Justice ROBERTS, Mr. Justice FRANKFURTER, and Mr. Justice JACKSON join in this dissent. Mr. Justice JACKSON has stated additional reasons for dissent in his concurrence in Douglas v. Jeannette, 319 U.S. 157, 63 S. Ct. 882, 87 L.Ed. --, decided this day.

Mr. Justice FRANKFURTER, dissenting.

While I wholly agree with the views expressed by Mr. Justice REED, the controversy is of such a nature as to lead me to add a few words.

A tax can be a means for raising revenue, or a device for regulating conduct, or both. Challenge to the constitutional validity of a tax measure requires that it be analyzed and judged in all its aspects. We must therefore distinguish between the questions that are before us in these cases and those that are not. It is altogether incorrect to say that the question here is whether a state can limit the free exercise of religion by imposing burdensome taxes. As the opinion of my Brother REED demonstrates, we have not here the question whether the taxes imposed in these cases are in practical operation an unjustifiable curtailment upon the petitioners' undoubted right to communicate their views to others. No claim is made that the effect of these taxes, either separately or cumulatively, has been or is likely to be to restrict the petitioners' religious propaganda activities in any degree. Counsel expressly disclaim any such contention. They insist on absolute immunity from any kind of monetary exaction for their occupation. Their claim is that no tax, no matter how trifling, can constitutionally be laid upon the activity of distributing religious literature, regardless of the actual effect of the tax upon such activity. That is the only ground upon which these ordinances have been attacked, that is the only question raised in or decided by the state courts, and that is the only question presented to us. No complaint is made against the size of the taxes. If an appropriate claim, indicating that the taxes were oppressive in their effect upon the petitioners' [319 U.S. 105, 135]  activities, had been made, the issues here would be very different. No such claim has been made, and it would be gratuitous to consider its merits.

Nor have we occasion to consider whether these measures are invalid on the ground that they unjustly or unreasonably discriminate against the petitioners. Counsel do not claim, as indeed they could not, that these ordinances were intended to or have been applied to discriminate against religious groups generally or Jehovah's Witnesses particularly. No claim is made that the effect of the taxes is to hinder or restrict the activities of Jehovah's Witnesses while other religious groups, perhaps older or more prosperous, can carry on theirs. This question, too, is not before us.

It cannot be said that the petitioners are constitutionally exempt from taxation merely because they may be engaged in religious activities or because such activities may constitute an exercise of a constitutional right. It will hardly be contended, for example, that a tax upon the income of a clergyman would violate the Bill of Rights, even though the tax is ultimately borne by the members of his church. A clergyman, no less than a judge, is a citizen. And not only in time of war would neither willingly enjoy immunity from the obligations of citizenship. It is only fair that he also who preaches the word of God should share in the costs of the benefits provided by government to him as well as to the other members of the community. And so no one would suggest that a clergyman who uses an automobile or the telephone in connection with his work thereby gains a constitutional exemption from taxes levied upon the use of automobiles or upon telephone calls. Equally alien is it to our c onstitutional system to suggest that the Constitution of the United States exempts church-held lands from state taxation. Plainly, a tax measure is not invalid under the federal Constitution merely because it falls upon persons engaged in activities of a religious nature. [319 U.S. 105, 136]  Nor can a tax be invalidated merely because it falls upon activities which constitute an exercise of a constitutional right. The First Amendment of course protects the right to publish a newspaper or a magazine or a book. But the crucial question is – how much protection does the Amendment give, and against what is the right protected? It is certainly true that the protection afforded the freedom of the press by the First Amendment does not include exemption from all taxation. A tax upon newspaper publishing is not invalid simply because it falls upon the exercise of a constitutional right. Such a tax might be invalid if it invidiously singled out newspaper publishing for bearing the burdens of taxation or imposed upon them in such ways as to encroach on the essential scope of a free press. If the Court could justifiably hold that the tax measures in these cases were vulnerable on that ground, I would unreservedly agree. But the Court has not done so, and indeed could not.

The vice of the ordinances before us, the Court holds, is that they impose a special kind of tax, a 'flat license tax, the payment of which is a condition of the exercise of these constitutional privileges (to engage in religious activities).' But the fact that an occupation tax is a 'flat' tax certainly is not enough to condemn it. A legislature undoubtedly can tax all those who engage in an activity upon an equal basis. The Constitution certainly does not require that differentiations must be made among taxpayers upon the basis of the size of their incomes or the scope of their activities. Occupation taxes normally are flat taxes, and the Court surely does not mean to hold that a tax is bad merely because all taxpayers pursuing the very same activities and thereby demanding the same governmental services are treated alike. Nor, as I have indicated, can a tax be invalidated because the exercise of a constitutional privilege is conditioned upon its payment. It depends upon the nat ure of the condition that [319 U.S. 105, 137]  is imposed, its justification, and the extent to which it hinders or restricts the exercise of the privilege.

As I read the Court's opinion, it does not hold that the taxes in the cases before us in fact do hinder or restrict the petitioners in exercising their constitutional rights. It holds that 'The power to tax the exercise of a privilege is the power to control or suppress its enjoyment'. This assumes that because the taxing power exerted in Magnano Co. v. Hamilton, 292 U.S. 40, 54 S.Ct. 599, the well-known oleomargarine tax case, may have had the effect of 'controlling' or 'suppressing' the enjoyment of a privilege and still was sustained by this Court, and because all exertions of the taxing power may have that effect, if perchance a particular exercise of the taxing power does have that effect, it would have to be sustained under our ruling in the Magnano case.

The power to tax, like all powers of government, legislative, executive and judicial alike, can be abused or perverted. The power to tax is the power to destroy only in the sense that those who have power can misuse it. Mr. Justice Holmes disposed of this smooth phrase as a constitutional basis for invalidating taxes when he wrote 'The power to tax is not the power to destroy while this Court sits.' Panhandle Oil Co. v. State of Mississippi ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 56 A.L.R. 583. The fact that a power can be perverted does not mean that every exercise of the power is a perversion of the power. Thus, if a tax indirectly suppresses or controls the enjoyment of a constitutional privilege which a legislature cannot directly suppress or control, of course it is bad. But it is irrelevant that a tax can suppress or control if it does not. The Court holds that 'Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance'. But this is not the same as saying that 'Those who do tax the exercise of this religious practice have made its exercise so costly as to deprive it of the resources necessary for its maintenance.' [319 U.S. 105, 138]  The Court could not plausibly make such an assertion because the petitioners themselves disavow any claim that the taxes imposed in these cases impair their ability to exercise their constitutional rights. We cannot invalidate the tax measures before us simply because there may be others, not now before us, which are oppressive in their effect. The Court's opinion does not deny that the ordinances involved in these cases have in no way disabled the petitioners to engage in their religious activities. It holds only that 'Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse.' I quite agree with this statement as an abstract proposition. Those who possess the power to tax might wield it in tyrannical fashion. It does not follow, however, that every exercise of the power is an act of tyranny, or that government should be impotent because it might become tyrannical. The question before us now is whether these ordinances have deprived the petitioners of their constitutional rights, not whether some other ordinances not now before us might be enacted which might deprive them of such rights. To deny constitutional power to secular authority merely because of the possibility of its abuse is as valid as to deny the basis of spiritual authority because those in whom it is temporarily vested may misuse it.

The petitioners say they are immune as much from a flat occupation tax as from a licensing fee purporting explicitly to cover only the costs of regulation. They rightly reject any distinction between this occupation tax and such a licensing fee. There is no constitutional difference between a so-called regulatory fee and an imposition for purposes of revenue. The state exacts revenue to maintain the costs of government as an entirety. For certain purposes and at certain times a legislature may earmark exactions to cover the costs of specific governmental services. In most instances the revenues of the state are tapped from multitudinous sources for a [319 U.S. 105, 139]  common fund out of which the costs of government are paid. As a matter of public finance, it is often impossible to determine with nicety the governmental expenditures attributable to particular activities. But, in any event, whether government collects revenue for the costs of its services through an earmarked fund, or whether an approximation of the cost of regulation goes into the general revenues of government out of which all expenses are borne, is a matter of legislative discretion and not of constitutional distinction. Just so long as an occupation tax is not used as a cover for discrimination against a constitutionally protected right or as an unjustifiable burden upon it, from the point of view of the Constitution of the United States it can make no difference whether such a money exaction for governmental benefits is labeled a regulatory fee or a revenue measure.

It is strenuously urged that the Constitution denies a city the right to control the expression of men's minds and the right of men to win others to their views. But the Court is not divided on this proposition. No one disputes it. All members of the Court are equally familiar with the history that led to the adoption of the Bill of Rights and are equally zealous to enforce the constitutional protection of the free play of the human spirit. Escape from the real issue before us cannot be found in such generalities. The real issue here is not whether a city may charge for the dissemination of ideas but whether the states have power to require those who need additional facilities to help bear the cost of furnishing such facilities. Street hawkers make demands upon municipalities that involve the expenditure of dollars and cents, whether they hawk printed matter or other things. As the facts in these cases show, the cost of maintaining the peace, the additional demands upon government al facilities for assuring security, involve outlays which have to be met. To say that the Constitution forbids the states to obtain the necessary revenue from the whole of a class that enjoys these benefits [319 U.S. 105, 140]  and facilities, when in fact no discrimination is suggested as between purveyors of printed matter and purveyors of other things, and the exaction is not claimed to be actually burdensome, is to say that the Constitution requires, not that the dissemination of ideas in the interest of religion shall be free, but that it shall be subsidized by the state. Such a claim offends the most important of all aspects of religious freedom in this country, namely, that of the separation of church and state.

The ultimate question in determining the constitutionality of a tax measure is – has the state given something for which it can ask a return? There can be no doubt that these petitioners, like all who use the streets, have received the benefits of government. Peace is maintained, traffic is regulated, health is safeguarded – these are only some of the many incidents of municipal administration. To secure them costs money, and a state's source of money is its taxing power. There is nothing in the Constitution which exempts persons engaged in religious activities from sharing equally in the costs of benefits to all, including themselves, provided by government.

I cannot say, therefore, that in these cases the community has demanded a return for that which it did not give. Nor am I called upon to say that the state has demanded unjustifiably more than the value of what it gave, nor that its demand in fact cramps activities pursued to promote religious beliefs. No such claim was made at the bar, and there is no evidence in the records to substantiate any such claim if it had been made. Under these circumstances, therefore, I am of opinion that the ordinances in these cases must stand.

Mr. Justice JACKSON joins in this dissent.


[1] The Court in the Murdock case, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed . --, analyzes the contention that the sales technique partakes of commercialism and says: 'It is a distortion of the facts of record to describe their activities as the occupation of selling books and pamphlets. And the Pennsylvania court did not rest the judgments of conviction on that basis, though it did find that petitioners 'sold' the literature.' The state court, in its opinion, 149 Pa.Super. 175, 27 A.2d 666, 667, stated the applicable ordinance as forbidding sales of merchandise by canvassing without a license, and said that the evidence established its violation by selling 'two books entitled 'Salvation' and 'Creation' respectively, and certain leaflets or pamphlets, all published by the Watch Tower Bible and Tract Society of Brooklyn, N.Y., for which the society fixed twenty-five cents each as the price for the books and five cents each as the price of the leaflets. Defendants paid twenty cents each for the books, unless they devoted their whole time to the work, in which case they paid five cents each for the books they sold at twenty-five cents. Some of the witnesses spoke of 'contributions' but the evidence justified a finding that they sold the books and pamphlets.'

The state court then repeated with approval from one of its former decisions the statements: 'The constitutional right of freedom of worship does not guarantee anybody the right to sell anything from house to house or in buildings, belonging to, or in the occupancy of, other persons.' ' ... we do not accede to his contention on the oral argument that the federal decisions relied upon by him go so far as to rule that the constitutional guaranty of a free press forbids dealers in books and printed matter being subjected to our State mercantile license tax or the federal income tax as to such sales, along with dealers in other merchandise.' City of Pittsburgh v. Ruffner, 134 Pa.Super. 192, 199, 202, 4 A.2d 224. And after further discussion of selling, the conviction of the witnesses was affirmed. It can hardly be said, we think, that the state court did not treat the Jeannette canvassers as engaged in a commercial activity or occupation at the time of their arrests.

[2] Whitney v. California, 274 U.S. 357, 371 , 47 S.Ct. 641, 646, and the concurring opinion, 274 U.S. 373, 47 S.Ct. 647; Reynolds v. United States, 98 U.S. 145, 166; Cantwell v. Connecticut, 310 U.S. 296, 303 , 60 S.Ct. 900, 903, 128 A.L.R. 1352; Cox v. New Hampshire, 312 U.S. 569, 574 , 576 S., 61 S.Ct. 762, 764, 766, 133 A.L.R. 1396.

[3] Journal of the Convention, 369; II Farrand, The Records of the Federal Convention, 611, 616-8, 620. Cf. McMaster & Stone, Pennsylvania and the Federal Constitution, 251-3.

[4] I Elliot's Debates on the Federal Constitution (1876) 319 et seq. In ratifying the Constitution the following declarations were made: New Hampshire, p. 326, 'XI. Congress shall make no laws touching religion, or to infringe the rights of conscience.' Virginia, p. 327, '... no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that among other essential rights, the liberty of conscience, and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.' New York, p. 328, 'That the freedom of the press ought not to be violated or restrained.' After the submission of the amendments, Rhode Island ratified and declared, pp. 334, 335, 'IV. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force and violence; and therefore all men have a natural, equal, and unalienable right to the exercise of religion according to the dictates of conscience; and that no particular religious sect or society ought to be favored or established, by law, in preference to others. ... XVI. That the people have a right to freedom of speech, and of writing and publishing their sentiments. That freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.'

[5] The Articles of Confederation had references to religion and free speech:

'Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.'

'Article V. ... Freedom of speech and debate in Congress shall not be impeached or questioned in any court, or place out of Congress, and the members of Congress shall be protected in their persons from arrests and imprisonments, during the time of their going to and from, and attendance on Congress, except for treason, felony, or breach of the peace.'

The Statute of Religious Freedom was passed in Virginia in 1785. The substance was in paragraph II: 'Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.' 12 Hening Statutes of Va. 86.

A number of the states' constitutions at the time of the adoption of the Bill of Rights contained provisions as to a free press:

Georgia, Constitution of 1777, Art. LXI. 'Freedom of the press and trial by jury to remain inviolate forever.' I Poore, Federal and State Constitutions 383.

Maryland, Constitution of 1776, Declaration of Rights, Art. XXXVIII. 'That the liberty of the press ought to be inviolably preserved.' Id., 820.

Massachusetts, Constitution of 1780, Part First, Art. XVI. 'The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this commonwealth.' Id. 959.

New Hampshire, Constitution of 1784, Part 1, Art. XXII. 'The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.' 2 Poore, Id., 1282.

North Carolina, Constitution of 1776, Declaration of Rights, Art. XV. 'That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.' Id., 1410.

Pennsylvania, Constitution of 1776, Declaration of Rights, Art. XII. 'That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.' Id., 1542.

Virginia, Bill of Rights, 1776, Sec. 12. 'That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.' Id., 1909.

[6] For example, the first amendment as it passed the House of Representatives on Monday, August 24, 1789, read as follows:

'Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

'The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.' Records of the United States Senate, 1A-C2 (U.S. Nat. Archives).

Apparently when the proposed amendments were passed by the Senate on September 9, 1789, what is now the first amendment read as follows: 'Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances.' Id.

[7] Egbert Benson was the first attorney general of New York, a member of the Continental Congress and of the New York Convention for ratification of the Constitution. Biographical Directory of the American Congress, 694.

[8] 'And be it enacted by the Authority aforesaid, That there shall be raised, levied, collected and paid, to and for the Use of her Majesty, her Heirs and Successors, for and upon all Books and Papers commonly called Pamphlets, and for and upon all News Papers, or Papers containing publick News, Intelligence or Occurrences, which shall, at any Time or Times within or during the Term last mentioned, be printed in Great Britain, to be dispersed and made publick, and for and upon such Advertisements as are herein after mentioned, the respective Duties following; that is to say,

'For every such Pamphlet or Paper contained in Half a Sheet, or any lesser Piece of Paper, so printed, the Sum of one Half-penny Sterling.

'For every such Pamphlet or Paper (being larger than Half a Sheet, and not exceeding one whole Sheet) so printed, a Duty after the Rate of one Penny Sterling for every printed Copy thereof.

'And for every such Pamphlet or Paper, being larger than one whole Sheet, and not exceeding six Sheets in Octavo, or in a lesser Page, or not exceeding twelve Sheets in Quarto, or twenty Sheets in Folio, so printed, a Duty after the Rate of two Shillings Sterling for every Sheet of any kind of Paper which shall be contained in one printed Copy thereof.

'And for every Advertisement to be contained in the London Gazette, or any other printed Paper, such Paper being dispersed or made publick weekly, or oftner, the Sum of twelve Pence Sterling.'

[9] Stevens, Sources of the Constitution, 221, note 2; Stewart, Lennox and the Taxes on Knowledge, 15 Scottish Hist.Rev. 322, 326; McMaster & Stone, Pennsylvania and the Federal Constitution, 181; Grosjean v. American Press Co., 297 U.S. 233, 248, 56 S.Ct. 444, 448.

[10] Cf. Collet, Taxes on Knowledge; Chafee, Free Speech in the United States, 17, n. 33.

[11] Gitlow v. New York, 1925, 268 U.S. 652, 666, 45 S.Ct. 625, 630; Near v. Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 628; Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 128 A.L.R. 1352.

[12] Permoli v. First Municipality, 3 How. 589, 609; Barron v. Mayor, etc., of Baltimore, 7 Pet. 243, 247.

[13] For the state provisions on expression and religion, see 2 Cooley, Constitutional Limitations (8th Ed.) 876, 965; III Constitutions of the States, New York State Con. Con. Committee 1938.

[14] To this Professor Chafee adds the right to criticize the Government, Free Speech in the United States (1941) 18 et seq. Cf. 2 Cooley's Constitutional Limitations (8th Ed.) 886.

[15] Giragi v. Moore, 301 U.S. 670, 57 S.Ct. 946; Id., 48 Ariz. 33, 58 P.2d 1249, 110 A.L.R. 314; Id., 49 Ariz. 74, 64 P.2d 819, 110 A.L.R. 320.

[16] Brown v. Maryland, 12 Wheat. 419, 445, 448; Kentucky Whip & Collar Co. v. Illinois Cent. R. Co., 299 U.S. 334, 350, 57 S.Ct. 277, 282; Gwin, etc., Inc., v. Henneford, 305 U.S. 434, 438, 59 S.Ct. 325, 327; Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S. 90, 58 S.Ct. 72.

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