The order and judgment appealed from directed the issuance of an absolute writ of prohibition which commanded the appellant, Lawrence M. Wittig, Municipal Justice of the Village of Whitefish Bay, to refrain from any further proceedings in the action pending in the municipal justice court of Whitefish Bay, entitled Village of Whitefish Bay v. Dennis M. Gall, for a violation of the village's transient merchant ordinance (sec. 15.07) occurring on July 19, 1968.
The respondent, Dennis M. Gall, was twenty-three years of age, a lifelong resident of Milwaukee, Wisconsin, a university graduate, and the circulation manager of the biweekly publication KALEIDOSCOPE, a member of the Underground Press Syndicate and the Liberation News Service.
On May 27, 1968, Gall, by letter, requested licenses for six street sellers to sell KALEIDOSCOPE during the daylight hours in the village.
At the time there was in effect a village ordinance requiring transient merchants to obtain a permit in order to solicit the sale of or to sell goods, wares or merchandise, produce or any other thing in the village.
Gall, on June 5, 1968, filed his application with the village chief of police, Orval H. Meister, for a permit to sell KALEIDOSCOPE throughout the village for a period of one year. On June 11, 1968, he paid the mandatory investigation fee of $5. The ordinance directs the chief of police to conduct such investigation of the applicant's business and moral character as he deems necessary for the protection of the public good.
The village chief of police reviewed the application, transmitted, with Gall's consent, Gall's fingerprints to the F.B.I., and personally reviewed copies of KALEIDOSCOPE. The police chief was informed by the F.B.I. that they had no record of the respondent, nor does any other police record detrimental to his moral character appear.
The application was disapproved by the chief of police on June 18, 1968, "for the protection of the public good of the Village of Whitefish Bay."
Thereafter, on June 19, 1968, Gall publicly offered for sale copies of KALEIDOSCOPE in the village across the street from the police station. He was then charged with violating the village's transient merchant ordinance and served with a summons to appear before the appellant-municipal justice on July 3, 1968.
On June 20, 1968, an alternative writ of prohibition was issued directed to the appellant. His return to the petition for the alternative writ included an affidavit of the village police chief setting forth his findings and the evidentiary basis thereof which, in part, reads:
"8. As a result of affiant's review of Exhibits 1 and 2 and of said issues of `Kaleidoscope', particularly (a) the portions of Volume 1 No. 13, April 26-May 9, 1968, on pages 16 and 17 thereof designated `Blue Movies', a copy of which issue of `Kaleidoscope' marked Exhibit 3 is attached hereto and by this reference made a part hereof, (b) the pictures in Volume 1 No. 13, May 10-23, 1968, appearing on page 17 entitled `The $100,000 Photos' and the article under said title, a copy of which issue of `Kaleidoscope' marked Exhibit 4 is attached hereto and by this reference made a part hereof, and (c) an article in Volume 1 No. 16, June 7-20, 1968, on page 16 wherein said Dennis Gall describes himself as a `Smut Peddler' with reference to the sale of `Kaleidoscope', affiant in his official capacity found as facts that (i) `Kaleidoscope' issues have contained obscene pornographic printed matter and pictures, (ii) the sale or solicitation for the sale of such matter would violate Section 944.21 (1) (a) of the Wisconsin Statutes, (iii) it is the policy and the plan to publish such matter and pictures in future issues of `Kaleidoscope' incident to the commercial exploitation thereof, (iv) the commercial sale or solicitation for sale of `Kaleidoscope' throughout the Village will obviously offend average adult readers and viewers, (v) the sale or solicitation for the sale of `Kaleidoscope' indiscriminately `throughout Village' would be harmful particularly to those of high school age, and (vi) such sale or solicitation for sale of `Kaleidoscope' would tend to incite disorderly conduct and conduct in breach of the peace."
The respondent demurred to the return.
The trial court found the ordinance to be unconstitutional and granted the absolute writ.
Mr. Wittig, the municipal justice, appeals.
Constitutional provisions, statutes and ordinances involved:
Amendments to the United States Constitution Art. I. "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."
Art. XIV. "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Wisconsin Constitution Art. I. "Free speech; libel. SECTION 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. . . ." Wisconsin Statutes "61.34 Powers of village board. (1) GENERAL GRANT. Except as otherwise provided by law, the village board shall have the management and control of the village property, finances, highways, streets, navigable waters, and the public service, and shall have power to act for the government and good order of the village, for its commercial benefit and for the health, safety, welfare and convenience of the public, and may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants and shall be limited only by express language."
"129.07 Local license. This chapter does not in any way limit or interfere with the rights of any town, city or village to further license truckers, hawkers, peddlers, or transient merchants to trade within the corporate limits thereof except in the case of ex-soldiers, as provided in section 129.02." Ordinances of the village of Whitefish Bay "Sec. 15.07 TRANSIENT MERCHANTS. (1) The words `Transient Merchant' as hereinafter used shall include any peddler, canvasser, solicitor whether principal, agent or employee, who engages in, does or transacts any temporary or transient business in this village, either in one location or by moving his place of business from place to place in the village selling goods, wares or merchandise or solicits for such trade, and whether or not for the purpose of carrying on such business, such individual hires, leases, occupies, or uses a building, structure, vacant lot, or railroad car or other vehicle for the exhibition or sale of such goods, wares and merchandise.
"(2) WHO NOT INCLUDED. (a) This section shall not be held to include the acts of persons selling services, goods or materials at wholesale to dealers in such articles, nor to newsboys, vendors of dairy products, fruit juices, bakery goods, groceries or ice products to any regular customers on established routes, nor the acts of the local area merchants or their employees in delivering such goods, in the regular course of business, . . .
"(3) PERMITS REQUIRED. It shall be unlawful for any transient merchant to vend, sell or dispose of, or to offer to vend, sell or dispose of goods, wares or merchandise, produce or any other thing at any place whatsoever within the Village of Whitefish Bay without first obtaining a permit as set forth herein.
"(4) APPLICATION AND PERMIT. (a) Application for Permit. Any person desiring to engage in business as aforesaid shall obtain a permit application form from the Village Clerk-Treasurer. He shall fill out this application form, stating the nature of and the place where his business is to be carried on, the length of time for which a permit is desired, a general description of the things intended to be sold, disposed of or contracted for, the name, date of birth and permanent address of all the employees to be covered by such permit, the name and address of the person he represents, and the place or places of residence of the applicant for the two years previous. No permit shall be granted until all of the provisions of subsection (4) (b) of this section shall have been complied with, nor until the applicant shall have exhibited a license standing in the name of the applicant, if required pursuant to section 129.02, Wisconsin statutes, the number and date of which license shall be set forth in said application.
"Whenever the business of the applicant shall require the use of weighing or measuring devices, the application shall be accompanied by a certificate from the sealer of weights and measures stating that said devices have been examined and approved.
"1. Application. At the time of filing application, an investigation fee of $5, for each person to be covered by permit, shall be paid to the Village Clerk-Treasurer to cover the cost of investigation of the facts stated in the application. The application shall be sworn to by the applicant and filed with the Chief of Police and shall contain such additional information as the Chief shall require for the effective enforcement of this section and the safeguarding of the residents of the village from fraud, misconduct or abuse. Religious, charitable, patriotic or philanthropic agencies or their agents shall not be required to pay the application fee.
"(b) Investigation. Upon receipt of each such application, the Chief of Police shall institute such investigation of applicant's business and moral character as he deems necessary for the protection of the public good, and shall endorse his approval or disapproval upon said application within seventy-two (72) hours after it has been filed with him, and shall issue or deny the permit in accordance with his findings after presentation by the applicant of a receipt of the Village Clerk-Treasurer showing payment of the required fee."
BEILFUSS, J.
From the briefs and arguments of counsel for the parties we deem the issues to be:
1. Is prohibition a permissible and proper remedy?
2. Does the ordinance, by its terms, exclude the proposed activities of the respondent?
3. Is the ordinance as applied to the respondent constitutional?
The propriety of the proceeding by writ of prohibition is not seriously contested by the appellant. In his reply brief the appellant, in response to respondent's claim that prohibition is an appropriate remedy, states, "We do not challenge this contention." The appellant does, however, insist that there are other adequate remedies such as mandamus to the chief of police requiring him to issue the permit, trial of the alleged ordinance violation, and declaratory judgment to challenge the constitutional validity of the ordinance.
In State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 614, 143 N.W.2d 437, the court stated:
"Traditionally, this writ was used to keep an inferior court from acting outside its jurisdiction when there was no adequate remedy by appeal or otherwise. State ex rel. Mitchell v. Superior Court (1961), 14 Wis.2d 77, 109 N.W.2d 522; State ex rel. Kiekhaefer v. Anderson (1958), 4 Wis.2d 485, 90 N.W.2d 790; State ex rel. Peterson v. County Court (1961), 13 Wis.2d 37, 108 N.W.2d 146; State ex rel. Fieldhack v. Gregorski (1956), 272 Wis. 570, 76 N.W.2d 382. But, as pointed out in Drugsvold v. Small Claims Court (1961), 13 Wis.2d 228, 108 N.W.2d 648, the writ has been expanded to cover cases of `nonjurisdictional error when the appeal may come too late for effective redress, or be inadequate and there is need for such intervention to avoid grave hardship or a complete denial of the rights a litigant.'"
The respondent contends that prohibition is appropriate, and the only adequate remedy here, because it is the most effective remedy to prevent interference with his alleged constitutional right of freedom of the press without censorship. In addition, it permits a speedy determination of that right and avoids delays of trial of the alleged violation and possible appeal.
Because the respondent has demurred to the return the appellant-municipal justice, the findings of the police chief (made a part of the return), are not in dispute. For the purpose of this proceeding, the respondent Gall concedes the chief of police was of the opinion that designated issues of KALEIDOSCOPE contained obscene matter. He does contend, however, that the ordinance which gives the chief of police this sole right is unconstitutional and that he is entitled to an adequate and speedy determination of that issue.
The constitutional issue could be determined by the procedures suggested by the appellant but because he does not challenge the appropriateness of prohibition we will reach the issues on their merits, reserving for future determination whether a litigant in the position of the respondent is entitled to the remedy of prohibition as a matter of right in a like situation.
The respondent Gall contends the transient merchant ordinance in question, by its own terms, excludes his activities in Whitefish Bay. Gall, by his letter and application for the permit, identified himself as the circulation manager of KALEIDOSCOPE and sought a permit for six persons to sell the publication on the streets in Whitefish Bay.
Sec. 15.07 "(2) WHO NOT INCLUDED. (a) This section shall not be held to include the acts of persons selling services, goods or materials at wholesale to dealers in such articles, nor to newsboys, vendors of dairy products, fruit juices, bakery goods, groceries or ice products to any regular customers on established routes, nor the acts of the local area merchants or their employees in delivering such goods, in the regular course of business, nor shall this section be held to include or apply to any farmer or truck gardener who shall vend, sell or dispose of, or offer to sell, vend or dispose of the products of the farm or garden occupied and cultivated by him, nor governmental agents in the performance of their official duties."
It is argued that the reference to newsboys means any newsboys regardless of whether they sell "to any regular customers on established routes." The respondent interprets the section to read: ". . . nor to newsboys, [nor to] vendors . . . [who sell] to any regular customers on established routes."
The ordinance is unambiguous and does not permit the construction given to it by the respondent. The ordinance creates exceptions based on the nature of the transaction or on the parties involved and it does so by establishing separate categories, which are: (1) sales by wholesalers to dealers; (2) sales to customers on established routes; (3) delivery by local merchants in the regular course of business; (4) sales by farmers and truck gardeners of their own grown products; and (5) governmental agents. Each category save the first is begun with "nor." It asks too much to say, as does the respondent, that a "nor" was inadvertently left out between "newsboys" and "vendors."
The overall pattern of the ordinance is to except those who do not sell to the public or those who sell or deliver on a permanent or regular basis in established patterns. It appears, therefore, that newsboys are not excluded unless they sell or deliver to regular customers on established routes.
Appellant asserts that the village Transient Merchant Ordinance is a valid delegation of authority to the chief of police.
The respondent contends the ordinance (sec. 15.07) is unconstitutional if it applies to any publication for the reason it violates the first and fourteenth amendments to the United States Constitution, and art. I, sec. 3 of the Wisconsin Constitution, both on its face and as applied.
It can confidently be said, without citation of authority, that the rights of freedom of speech and freedom of the press as provided for in the first amendment of the United States Constitution cannot be abridged by any state or subdivision thereof by virtue of the fourteenth amendment. The same rights are extended even more explicitly by art. I, sec. 3 of the Wisconsin Constitution:
"Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. . . ."
The ordinance, of course, was not designed as an anti-obscenity ordinance nor as a censorship ordinance. It is what its title says it is — a transient merchant ordinance. It delegates and directs the chief of police to investigate the business and moral character of the applicant for a transient merchant's permit as he deems necessary for the public good and then issue or deny the permit in accordance with his findings.
The regulations placed on a permit-holder are that he not misrepresent his product, or the nature of his visit, sell unwholesome food, sell after the expiration or revocation of his permit, and keep the area free from dirt and insects.
In denying the permit the chief of police found that some of the past issues of KALEIDOSCOPE contained obscene matter and would likely contain such matter in the future. He has, in effect, censored the publication and prohibited future sales of issues not yet published on the streets of Whitefish Bay.
The freedom of speech and freedom of press are two of our most jealously guarded and basic constitutional rights. Throughout the years, especially the last few years, the cases decided by the courts of this country, particularly the United States Supreme Court, have steadfastly proclaimed these rights cannot be infringed. However, "Liberty of speech, and of the press, is also not an absolute right, and the State may punish its abuse."
Near v. Minnesota (1931), 283 U.S. 697, 708, 51 Sup. Ct. 625, 75 L.Ed. 1357.
The appellant correctly points out that the sale of obscene matter is a recognized abuse of the right and is not protected by either our federal or state constitutions.
State v. Voshart (1968), 39 Wis.2d 419, 159 N.W.2d 1; State v. Chobot (1960), 12 Wis.2d 110, 106 N.W.2d 286; Ginsberg v. New York (1968), 390 U.S. 629, 88 Sup. Ct. 1274, 20 L.Ed.2d 195; Roth v. United States (1957), 354 U.S. 476, 77 Sup. Ct. 1304, 1 L.Ed.2d 1498.
The issues of this case in its present posture do not encompass a determination of whether the identified KALEIDOSCOPE contained obscene matter. Our concern must be limited to whether the method provided for by the ordinance and used by the village is constitutionally permissible to prevent the distribution KALEIDOSCOPE.
A first problem raised by the appellant is the contention that the first amendment does not prohibit regulation by ordinance of the business of soliciting the sale of or the sale of periodicals by a local transient merchant and cites as authority Breard v. Alexandria (1951), 341 U.S. 622, 71 Sup. Ct. 920, 95 L.Ed. 1233.
In Breard a local ordinance prohibited house-to-house solicitation for the sale of goods or wares without prior consent of the owners. A magazine circulation agency, selling among other magazines, The Saturday Evening Post, challenged the constitutional validity of the ordinance as an infringement on free press. The ordinance was upheld upon the ground that it was a reasonable and valid restriction to protect the privacy of the citizens the community. The court pointed out that it was not an unreasonable restriction upon circulation; conventional means to advertise and sell their magazines such as radio, press, mail and local agencies were still available to provide for circulation. The circulation of the magazine was not restricted because of what it contained, nor was circulation prohibited in any manner other than deemed by the community to be obnoxious and an affront to privacy. Such is not the situation here. Gall is denied the right to sell or circulate his newspaper not because of the manner in which he sells the paper but because of what the paper contains. Breard was a reasonable regulation of distribution or circulation, this case is censorship.
We now reach the question of whether censorship or prior restraint of press publications can constitutionally be permitted.
In Near v. Minnesota, supra, the United States Supreme Court stated at pages 713, 714:
"`The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.' 4 Bl. Com. 151, 152; . . ."
A multitude of cases have come before the courts in the past few years dealing with the problem of censorship and prior restraint. As a generalization it can be said that some degree of censorship and prior restraint can be exercised, but any chilling effect upon freedom of the press or speech is regarded with suspicion and the censor has an affirmative heavy burden of judicially establishing that the censored materials are unprotected and must do so with great dispatch.
In Freedman v. Maryland (1965), 380 U.S. 51, 58, 59, 85 Sup. Ct. 734, 13 L.Ed.2d 649, the following guidelines appear:
"Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v. Randall, 357 U.S. 513, 526, `Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.' Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books v. Kansas, 378 U.S. 205; Marcus v. Search Warrant, supra; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 518-519. To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that, even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, supra. Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license."
Additional pertinent quotations are:
"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official — as by requiring a permit or license which may be granted or withheld in the discretion of such official — is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Staub v. Baxley (1958), 355 U.S. 313, 322, 78 Sup. Ct. 277, 2 L.Ed.2d 302.
"What Rhode Island has done, in fact, has been to subject the distribution of publications to a system of prior administrative restraints, since the Commission is not a judicial body and its decisions to list particular publications as objectionable do not follow judicial determinations that such publications may lawfully be banned. Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan (1963), 372 U.S. 58, 70, 83 Sup. Ct. 631, 9 L.Ed.2d 584.
Upon the basis of the established law we must hold the ordinance in question as applied in this instance does result in censorship and prior restraint without constitutionally decreed safeguards.
The ordinance, as applied, delegates to an executive or administrative official the right and duty to censor publications without affirmative judicial review and without semblance of standards or definition of what is prohibited. Here, in effect, there was not only a determination that existing publications contained obscenity without constitutional safeguard but, in addition, a determination that future publications would contain such material. The ordinance as applied is unconstitutional.
As aptly pointed out by the trial court in its memorandum:
"Although the licensing provision is unconstitutional, society does not go unprotected against the distribution of obscene literature. The state law clearly provides for the seizure of lewd, obscene or indecent written material in Chapter 963. A special declaratory judgment statute enacted in 1961 enables the District Attorney to proceed against any book, magazine or other written matter in order to enjoin its distribution. Finally, 944.21, Wis. Stats., makes it a felony punishable by $5,000.00 or five years, or both, to sell or publish any lewd, obscene or indecent written matter. These are the proper legal routes to resolve the burning issue as to whether Kaleidoscope should be permitted to be sold or published in this community."
By the Court. — Order and judgment affirmed.