Busey v. District of Columbia, 319 U.S. 579 (1943)

U.S. Supreme Court

Busey v. District of Columbia, 319 U.S. 579 (1943) Busey v. District of Columbia

No. 235

Argued June 1, 1943

Decided June 14, 1943

319 U.S. 579

CERTIORARO TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Syllabus

In view of Jones v. Opelika, 319 U. S. 103, and Murdock v. Pennsylvania, 319 U. S. 105, the judgment in this case is vacated and the cause is remanded in order that the court below may reexamine the questions whether § 47-2336 of the District of Columbia Code (1940), which forbids unlicensed sales upon the public streets, or from public space, should be construed as applicable to the facts of this ease, and whether, if applicable, it is constitutional. P. 319 U. S. 580.

75 U.S.App.D.C. 352 vacated.

Certiorari, post, p. 735, to review the affirmance (129 F.2d 24) of a judgment of the Police Court of the District of Columbia.

Page 319 U. S. 580

PER CURIAM.

In this case, petitioners, who are Jehovah's Witnesses, were convicted of selling on the streets of the District of Columbia, magazines which expound their religious views, without first procuring the license and paying the license tax required by § 47-2336 of the District of Columbia Code (1940). In affirming the conviction, the Court of Appeals for the District of Columbia below had two questions before it: whether the statute was applicable to petitioners, and, if so, whether its application as to them infringed the First Amendment. The court construed the statute as applicable, and sustained its constitutionality (75 U.S.App.D.C. 352, 129 F.2d 24), following the decision in Cole v. City of Fort Smith, 202 Ark. 614, 151 S.W.2d 1000, the judgment in which was affirmed by this Court in Bowden v. Fort Smith, 316 U. S. 584, one of the cases argued together with Jones v. Opelika, 316 U. S. 584. Since the decision below, and after hearing reargument in the Opelika case, we have vacated our earlier judgment and held the license tax imposed in that case to be unconstitutional. Jones v. Opelika, 319 U. S. 103; Murdock v. Pennsylvania, 319 U. S. 105. Petitioners urge us to construe the District of Columbia statute as inapplicable in order to avoid the constitutional infirmity which might otherwise exist -- an infirmity conceded by respondent on the oral argument before us. In view of our decisions in the Opelika and Murdock cases, we vacate the judgment in this case and remand the cause to the Court of Appeals for the District of Columbia to enable it to reexamine its rulings on the construction and validity of the District ordinance in the light of those decisions. Cf. New York ex rel. Whitman v. Wilson, 318 U. S. 688, and cases cited.

So ordered.

MR. JUSTICE RUTLEDGE took no part in the consideration or decision of this case.