Wiley Blount Rutledge

“ The Gospel Army is an incorporated religious organization. The trial court found that it is 'engaged exclusively in the promulgation, by literature and word of mouth, of its religious beliefs, by and through its auxiliaries and in the procuring of donations in the form of money and articles of value in the prosecution and furtherance of its religious activities.' More particularly, its activities consist of conducting a mission, distributing religious books without charge, giving aid to the poor. ”

“ But that law must be applied by the trial court to the evidence presented upon the second trial. 'It is settled beyond controversy that a decision of this Court on appeal, as (to) a matter of fact, does not become the law of the case." Erlin v. National Union Fire Ins. Co., 7 Cal.2d at page 549, 61 P.2d at page 757.
We cannot assume that the Supreme Court of California would hold the ordinances in question constitutional no matter what facts might be presented upon a second trial. Indeed, experience demonstrates that particularly in constitutional cases issues turn upon factual presentation. ”

“ In this case, for example, the effect of the judgment under state practice is to remand the case for a new trial. Nothing in the opinion of the court is to the contrary. We cannot assume that the state court made an error in its judgment, clerical or otherwise. ”