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.



Footnotes

[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.


