Charles Evans Whittaker

“ While the power to review the denial by a state court of a nonfrivolous claim under the United States Constitution has been centered in this Court, carrying with it the responsibility to see that the opportunity to assert such a claim be not thwarted by any local procedural device, equally important is observance by this Court of the wide discretion in the States to formulate their own procedures for bringing issues appropriately to the attention of their local courts, either in shaping litigation or by appeal. ”

“ It is a well known fact this day and time that labor unions constitute the vast majority of organizations which send paid representatives into communities for the purpose of organizing and soliciting membership. The above purposes are illegal and improper and is a misuse and abuse of the law-making powers of the plaintiff city, but nevertheless will be successful in depriving defendant of her rights unless this court declares said ordinance null and void. ”

“ Of course, even if the Georgia rule is intrinsically reasonable and thus entitled to respect by this Court, we must be sure that it has not been applied arbitrarily in the case before us. Appellant attacks a nine-section ordinance with nine charges of invalidity, several of which (although it is difficult to say precisely how many) involve federal claims. ”

“ The amounts of money charged in said ordinance are so large that it could not reasonably be paid by anyone desiring to organize any sort of organization and therefore exists solely to prevent and deprive defendant and others like defendant from organizing members in their organization and exercising rights previously herein set out. The ordinance shows on its face that it is patently a device intended to prevent organization within the city limits in behalf of labor unions. ”

“ Appellant's first contention in this Court is that the ordinance is invalid on its face because it makes enjoyment of the constitutionally guaranteed freedom of speech contingent upon the will of the Mayor and Council of the City and thereby constitutes a prior restraint upon, and abridges, that freedom. Believing that appellant is right in that contention and that the judgment must be reversed for that reason, we confine our considerations to that particular question and do not reach other questions presented. ”

“ An ordinance of the City of Baxley, Georgia, [14] provides that anyone who seeks to solicit members for any organization requiring the payment of dues shall first apply to the Mayor and Council of Baxley for a permit to carry on such solicitation. The ordinance further provides a detailed procedure for making the application, standards for granting the permit, the fee to be charged, and sanctions for failure to comply with the ordinance. Appellant was arrested for violation of the ordinance and was ordered to appear before the Mayor's Court of the City. ”

“ Defendant shows that the right to engage in organizing labor unions is an inherent constitutional right consisting of soliciting members by pointing out to workers the advantage of belonging to labor unions, such solicitation being done by word of mouth, by pamphlets or other publications and by holding meetings of those desirous to be informed of the facts about labor unions. ”

“ The local procedural rule which controlled this case should not be disregarded by reason of a group of Georgia cases which, while recognizing and reaffirming the rule of pleading relied on by the Court of Appeals below, suggest a limited qualification. It appears that under special circumstances, where a generalized attack is made against a statute without reference to specific provisions, the court will inquire into the validity of the entire body of legislation challenged. ”

“ The record before us presents not the remotest basis for attributing to the Georgia court any desire to limit the appellant in the fullest opportunity to raise claims of federal right or to prevent an adverse decision on such claims in the Georgia court from review by this Court. Consequently, this Court is left with no proper choice but to give effect to the rule of procedure on the basis of which this case was disposed of below. ”

“ Appellant was a salaried employee of the International Ladies' Garment Workers Union which was attempting to organize the employees of a manufacturing company located in the nearby town of Hazelhurst. A number of those employees lived in Bazley. On February 19, 1954, appellant and one Mamie Merritt, also a salaried employee of the union, went to Baxley and, without applying for permits required under the ordinance, talked with several of the employees at their homes about joining the union. ”

“ His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. ”

“ It is not out of question that more specific pleading might have drawn similar admissions as to other allegedly objectionable portions of the ordinance.↑ Thus, it is an allowable assumption that the Georgia court might construe § VI so as to make it provide that a person in appellant's situation need only apply and pay a fee in order to obtain the permit. ”

“ First, it calls for closer reflection and greater responsibility on the part of one who challenges legislation, for, in formulating specific attacks against each provision for which an infirmity is claimed, the pleader is more likely to test his claims critically and to reconsider them carefully than he would be if he adopted a 'scatter-shot' approach. ”

“ Those contentions were renewed in the Court of Appeals but that court declined to consider them. It stated that ' (t) he attack should have been made against specific sections of the ordinance and not against the ordinance as a whole'; that ' (h) aving made no effort to secure a license the defendant is in no position to claim that any section of the ordinance is invalid or unconstitutional' ”