1. The ordinance forbidding the sale of any pamphlets between the hours of 10 a. m. and 9 p. m. on certain designated sidewalks, and providing a penalty therefore, is a valid, reasonable regulation for public safety and convenience.
2. Though the ordinance forbids the sale of any pamphlet, a proper interpretation excludes its application to pamphlets disseminating a religious belief through the distribution of religious pamphlets or literature by selling or offering them for sale at the prohibited time and place when such distribution does not interfere with the traffic, and the safety, comfort, or convenience of the public in the use of the street; such an application would render the ordinance unconstitutional, as a violation of the defendant's constitutional guarantee of freedom of religion.
3. The summons or accusation alleging a violation of such ordinance need not negative this matter; it pertains simply to the defense, and embraces matters that are properly to be introduced by the defendant.
4. The evidence did not authorized the conviction.
DECIDED JUNE 28, 1945.
The defendant, Clay Burns, a member of "Jehovah's Witnesses," was convicted in the mayor's court of the City of Carrollton of violating a certain city ordinance. the judge of the superior court refused to sanction his petition for certiorari, and that judgment is assigned as error in the present bill of exceptions. The ordinance in question is as follows: "Ordinance to regulate selling on the streets. Whereas, the City of Carrollton, Georgia, is laid out on a square with narrow streets leading into [and] on the public square and the streets adjacent thereto; and whereas, the main highways of the State lead into and through the City of Carrollton; and whereas, the population of Carrollton has gradually increased by constant and additional industries being established therein; and whereas, the United States now being at war,
the highways leading through Carrollton from Fort Benning to other points are constantly being used by necessary war traffic and otherwise; and whereas, the automobile traffic on the streets of the City of Carrollton has practically doubled within the last three years, and the city has been forced to pass stringent ordinance to regulate the traffic and the parking of cars on said streets; and whereas, the pedestrians and traffic on the sidewalks in the business section of the City of Carrollton has practically doubled during the rush hours on each Saturday when soldiers return on furloughs, and the farmers come to town to shop, and the industrial workers are off; and whereas, an emergency exists, and it is necessary, in order to keep the streets and sidewalks open for traffic during the rush hours, that people may shop at the stores in the business section; and whereas, the sale or the offering for sale of any goods, wares, merchandise, magazines, and pamphlets, or maps on the sidewalks cause pedestrians congestion and blocks the traffic so that people can not freely come and go along the sidewalks: Now, therefore, be it ordained by the mayor and city council of Carrollton, that from and after the passage of this ordinance that it shall be unlawful: Section 1 — For any person, firm, or corporation to sell or offer for sale any goods, wares, merchandise, pamphlets, between the hours of 10 a. m. and 9 p. m. on the following congested sidewalks in said city: 1. On public square, commonly known as Adamson Square. 2. The sidewalks on Maple Street to the intersection of North Cliff Street. 3. The sidewalks on Alabama Street to the intersection of North Cliff Street. 4. The sidewalks on Newnan Street to the intersection of White Street. 5. The sidewalks on Dixie Street to the intersection of West Avenue. 6. The sidewalks on Rome Street to the intersection of Mill Street. 7. The sidewalks on Bradley Street to the intersection of Center Street with Bradley Street. 8. The sidewalks on Tanner Street to the intersection of Center Street. 9. The sidewalks on College Street to the intersection of City Hall Avenue, covering the vicinity of the hospital. Section 2 — Be it further ordained by the authority aforesaid that any person, firm, or corporation violating the terms of this ordinance shall be punished in accordance with section 263 of the code of the City of Carrollton. Section 3 — Be it further ordained by the authority aforesaid that
all ordinances and parts of ordinances in conflict herewith be and the same is hereby repealed."
The ordinance here in question forbids the sale of any goods, wares, merchandise, pamphlets between the hours of 10 a. m. and 9 p. m. on certain designated sidewalks. This ordinance is a valid and reasonable regulation for public safety and convenience under the police powers of this city.
Jones v.
Moultrie, 196 Ga. 526 (
27 S.E.2d 39). Though the ordinance forbids the sale of any pamphlet, etc., a proper interpretation would exclude its application to pamphlets disseminating the defendant's religious beliefs through the distribution of religious pamphlets or literature by selling and offering them for sale at the prohibited time and place stated in the ordinance, when such distribution did not interfere with the safety, comfort, or convenience of the public in the use of such street, because such an application would render the ordinance unconstitutional. Yet, the summons or accusation on the ordinance need not negative this matter; it pertains simply to the defense and embraces matters that are properly to be introduced by the defendant. 2 Bishop's New Criminal Procedure (2d ed.), § 638 (3); 1 Wharton on Criminal Procedure (10th ed.), § 288;
Frierson v.
State, 67 Ga. App. 829 (
21 S.E.2d 438). Such ordinance should be applied in the interest of all as a regulation of the streets to protect and insure the safety, comfort, or convenience of the public, and as not intending to deny "Jehovah's Witnesses," a religious sect, or any other religious sect, the right to disseminate religious beliefs through the distribution of literature, which is protected under the constitutional guaranty of freedom of religion; such application saves the ordinance from collision with the Federal constitution. Murdock
v. Pennsylvania,
319 U.S. 105 (
63 Sup. Ct. 870,
87 L. ed. 1292,
146 A.L.R. 81). Thus, where the defendant, a member of a religious sect (Jehovah's Witnesses) was charged with the violation of such ordinance and the proof showed the dissemination of his religious literature by selling and offering it for sale at the prohibited time and place in question, and further showed that his distribution of such literature did not interfere with traffic nor with the safety, comfort, or convenience of the public in the use of such streets, he would not be
guilty of violating such an ordinance.
Jones v.
Moultrie,72 Ga. App. 282 (
33 S.E.2d 561). The judge of the superior court erred in refusing to sanction the writ of certiorari.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.