Action by city of Milwaukee against Harold F. Snyder charging violation of a city ordinance. From a judgment of conviction the defendant appeals.
Proceedings were commenced in the District Court of Milwaukee county charging the defendant with violation of a city ordinance declaring it “unlawful for any person *** (among other things constituting various kinds of nuisances) to circulate or distribute any circular, handbills, cards, posters, dodgers or other printed or advertising matter *** in or upon any sidewalk, street or alley *** within the city of Milwaukee.” (We will hereinafter use the word “handbill” as including the several kinds of printed matter here enumerated and all other kinds.)
The District Court on trial dismissed the action. The plaintiff appealed to the Municipal Court from the judgment of dismissal. On the filing of an affidavit charging prejudice against the judge of the Municipal Court, the action was transferred to the Circuit Court for trial. The case was tried to the court without a jury.
During the picketing of a chain of several stores operated by the Shinner Company in the city of Milwaukee in a labor dispute between the company and a local Butcher's Labor Union affiliated with the American Federation of Labor, the defendant and several other pickets, members of the union, were arrested for violation of the city ordinance above referred to by distributing handbills on the city streets and taken before the District Court of Milwaukee county for trial. The handbill set forth the contentions of the labor union respecting the matters in dispute and requested the public not to patronize the shops operated by the company. The picket would hand a pedestrian on the sidewalk in front of a store of the Shinner Company a handbill. The person receiving a bill would ordinarily throw it upon the sidewalk or the street adjacent. No violence was committed, no threats made, and no intimidation practiced by the distributing pickets. Pedestrians who dropped the bills were not arrested. The handbills were nine by twelve inches in size. The number of handbills on the street near where the defendant was distributing the bills was stated by one of the officers who arrested him to be “dozens,” and by the other officer taking part to be “seventy–five to a hundred.” It was a windy day, and some of the bills were blown about.
The settled policy of the police department pursuant to a general instruction of the chief of police respecting the distribution of handbills was not to arrest the person who dropped a handbill handed to him, but to arrest the man who handed it to him, if and when, and only if and when, the bills so handed were dropped on the streets in number sufficient to constitute a substantial littering of a street or streets. This course was followed in the instant case. Distribution of handbills on private property was not interfered with, because such distributions were considered as not within the terms of the ordinance.
Attorneys and Law Firms
*302 A. W. Richter, of Milwaukee, for appellant.
Walter J. Mattison, City Atty., and Carl F. Zeidler, Asst. City Atty., both of Milwaukee, for respondent.
Perry J. Stearns, of Milwaukee, and Osmond K. Fraenkel and Jerome M. Britchey, both of New York City, amici curiae.
Opinion
FOWLER, Justice.
We consider that this case is ruled by the decision in City of Milwaukee v. Kassen, 1931, 203 Wis. 383, 234 N.W. 352, which involved the same ordinance and substantially the same facts as to distribution. The ordinance is set out in full at page 384, at page 353 of 234 N.W., of the Kassen Case. In that case political handbills were being distributed in the same manner and with the same effect as here. In that case and a prior case it was held that [page 353] “The object sought to be attained by the ordinance evidently is to prevent an unsightly, untidy, and offensive condition of the sidewalks.” Mittleman v. Nash Sales, Inc., 202 Wis. 577, 232 N.W. 527. All points here raised were raised in the Kassen Case, except such as are hereinafter discussed. We see no need to restate or add to what is said in that case upon the points there covered.
*303 It is contended that the case of Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, overrides the Kassen Case and requires the reversal of the instant one. The ordinance involved in the Griffin Case was held to violate the Constitution of the United States in that it unduly restricted the rights of the citizen as to freedom of speech and press and in the free exercise of religion. U.S.C.A. Const. Amend. 1. No question of religion is here involved. The ordinances involved in the two cases are so widely different that we perceive no conflict between the decisions. The act involved in the Griffin Case was the free distribution within the city of a tract or pamphlet “setting forth the gospel of the ‘Kingdom of Jehovah,”’ [page 667] a religious cult of which the petitioner in certiorari was a member, without having first procured a license so to do as required by an ordinance of the city. The ordinance prohibited “the practice of distributing, either by hand or otherwise, circulars, handbooks, advertising or literature of any kind, whether delivered free or sold, within the limits” of the city unless a license was first procured from the city manager. So doing was declared a nuisance. The ordinance was manifestly not aimed to prevent the littering of streets, as was the instant ordinance. The opinion in the Lovell Case, supra, written by Mr. Chief Justice Hughes negatives the idea that an ordinance aimed to prevent “the littering of the streets” is within the purview of the decision in that case. It is said, 58 S.Ct. page 669, 82 L.Ed. page 953, “It [the ordinance] is not limited to ways which might be regarded as inconsistent with the maintenance of public order, or as involving disorderly conduct, the molestation of the inhabitants, or the misuse or littering of the streets.”
The implication plainly is that an ordinance so aimed is not unconstitutional, if reasonable in its terms. The construction of the Milwaukee ordinance, as held by our state court, is binding upon the federal courts, so far as its aim or purpose is concerned. The purpose of the ordinance would not, of course, except it from operation of the freedom of speech, press and religion provisions of the United States Constitution, or from the operation of the XIVth Amendment thereto, U.S.C.A., if it were enforced in a discriminatory manner or in such a way as unreasonably to restrict the rights of the citizen thereunder. But the instant ordinance was found in the instant case not to have been so enforced, and the trial court held and we consider correctly that the defendant's rights were not unreasonably restricted. Unless and until delivery of the handbills was shown to result in a littering of the streets their distribution was not interfered with.
The only contention of the defendant here made, so far as we can discover, that was not made in the Kassen Case, supra, is that the distribution of the handbills was lawful under a statutory provision enacted since that case was decided, sec. 103.53(1) (e) of the State Labor Code, St. 1937. This declares lawful “Giving publicity to and *** communicating information regarding the existence of, or the facts involved in, any [labor] dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, without intimidation or coercion, or by any other method not involving fraud, violence, breach of the peace, or threat thereof.”
The distribution here involved did not do any of the things impliedly prohibited by this section in “communicating information,” and the content of the handbill was such as to be within the meaning of “giving publicity” and “communicating information” thereby declared lawful. But properly construed this does not make lawful the doing of things that violate existing lawful statutes or ordinances. The things mentioned which the code provision cited expressly permits must be done without so doing. That provision was not intended and can not be construed to repeal or render void existing valid ordinances enacted to provide for the necessities or convenience of traffic in the city streets or their safety or seemly appearance, and it can not be construed so to operate.