Untitled Texas Attorney General Opinion

HO. 3086

HOUSeBill NO. 132, Forty-slrth Legls- lature, is unconstitutional insofar as it attempts to prohlblt the sollclta- tlon or collection of money for the bona fide purpose of sponsoring, etc., social security legislation; but Is constitutional insofar as It makes un- lawful the aollcltation or oolleotlon of money for any m (or fraudu- lent) purpose.

OFlpICg OF THE ATTOIUETGglC%RAL

Beptember 12, 1939

Honorable W. Lee O%anlel Governor of Texas Austin, Texas Opinion no. 0-3.U6 Be: Consbuotlon of House Dear Governor O’Daniell DIU. ~0. 132 We are pleased to reply to your request of July 21, 1939, for a construction of House Bill go. 132 of the . Forty-sloth Legislature, concerning which you ask the fol- lowing two questions: e(l) Will Section 2 of this Act pre- vent the assembling together of orgsnlsa- tlons, local or state-wide ln their na- ture and the solicitation of dues or fuuds from a membership to Abe used by the organ- leatlon for the purpose of seourlng the passage of legislation in their behalf? I would contemplate that suoh an assembly would do the usual and customary things in forming their organlsatlons and ln carry- lng out the purpose of it. If you advise that they may so assemble, I vould like for you to state the extent to which they may go under this Act or, preferably, the llmltatlons which it places upon them.

e(2) This being a Penal Statute, I would like for you to advise lf ln your opinion Its provlslons are sufflclently definite to acoompllsh the expressed pur- pose and just how far the authorities may go in preventing the collection of fuuds from persons eligible to receive pensions.* We are attaching to this opinion a copy of House Bill Ho. 132 so that the same may be referred to in oOn)uno- tlon with this opinion. bectlon 2 of the Aot makes it *unlawful for any person firm or corporation to solicit or collect dues or money hor himself, or Itself or any organization, a8SOCia- tlon, partnership or corporation for the purpose or pretended

Honorable W . Lee O’Danlel, September 3.2, 1939, page 2

purpose of collect&i!, or aiding ln the collection of or advertlslng or sponsoring old age pensions of any kIni, or benefits for any person or group of persons from the Social 6eCIWity program as it applies to old age assistance, blind persons,, or dependent and destltute children . . .*

8ectlon of said Act provides:

*u Nothing ln this Act shall prohibit persons recelvlng Social Becur- lty Benefits from the State of Texas or from the United States Governuient or who are eligible to receive Soclai Secur- ity Benefits from the State of Texas or from the United States Government from organizing end sponsoring Social ieourity LeglslatlorP. nowhere In the Act Is there an eIpress prohibl- tion against the foormation and activities or organlsatlons of any character. In fact, Section 3 seeks expressly to authorize those over 65 years of age to organize and to sponsor Social security legislation. The Act Is silent as to whether persons under 65 years of age may organlte to sponsor such legislation. What Is prohibited to all persons (by Section 2) Is the solicitation and collection of money for the purpose or pretended purpose of sponsoring social security. It matters not how willing the contributor or how unselfish the collector, the oollectfon of money to spans& govern- mental aid to the aged, the blind, or ,dependent c.hlldren Is made a crime by House Bill h’o. 132, pinishable by a term of not more than five years in the penitentiary. In abort, the Legislature has said, all persons shall be free to organize for the purpose of spensorlng benevolent leg- islation of this type, but they are forbidden to use any money, hovever necessary, In the exercise of this right. Under this statute, it would be unlawful for a Tovnsend Club to collect dues from its members, and its treasurer would be subject to imprisonment. It must be self-evident that an organization, particularly one that Is state-wide In scope must incur certain inevitable expenses for hlr- lng meeting places, for printing bulletins, for postage, and the like. If such an organization cannot collect dues from Its members It cannot exist. By forbidding the col- lection of money for such purposes, the Legislature has forbidden the organization Itself as effeotlvely as though it had said: “It shall be unlawful for any persons to or- ganize for the purpose of sponsoring social security legls- latlon.” This the Legislature may not do for Article 1, Section 27, of the Texas Constltutlon deciares8 *The citizens shall have the right, in a peaceable manner to assemble together for their common good, and apply to those invested with the powers of government for redress.of grievances or other purposes, by petition, address or remonstrence.” Freedom of peaceable assembly and freedom of speech are among the most cherished llbertlea of a free people, and they are guaranteed ln uuequlvocable language w the ~lll of Rights of both the United States and the Texas Constitutions.

Honorable Y. Lee O’Danlel., September 12, 1939, Page 3

It 18 an axlomatlo principle ‘of our jurlspru- dence that those rights vhloh the Constitution protect8 oaunot be made ineffective by removing the necessary lnci- dents to the $nnJoyment of those rights. The Llgtilature may not do by indirection what it could not do directly. The ~evltable~effeot of Section 2 of House Bill No. 132 Is to render ineffective the peoples’ constitutional right *in a peaceable manner to assemble together” for purposes which cannot be anything but lawful. Nor may the exercise of this right be limited (as Section 3 seems to -1~) only to those who are eligible to receive old age assistance under existing laws. The State and Federal Constitutions guarantee certain inalienable rights allke to those vho have not yet reached the age of 65, as well as-to the venerable recipients of governmental,largess.

Let us not be misunderstood. Ye do not vlrh to imply that the Legislature intended a deliberate assault upon the liberties of,onr People by the passage of House Bill ~0. 132. Their motives were of the best. They were seeking only to remedy certain notorious evils which had UiSeIl. They were directing their attention (as stated In the emergency clause of the bill) to “the fact that .the people of Texas are being subjected, to nefarious advertis- lng and sollcltlng shcemes that result in the obtaining of money by var lour persons . . .* But in their zeal to cor- rect these abuses, and to restrain the predatory activities of unscrupulous promoters, the Legislature Inadvertently forbade the lawful aotivltles of the very persons they were seeking to protect, -and ln so doing transgressed the constl- tutlonal llmltatlons of leglslatlva~aotlon. As stated ln 12 Corpus Juris, ,p. 953: *But the mere fact that there has been published ln a newspaper libelous or scurrilous matter for which the pro- prietor Is subJect to punishment under the criminal lav does not authorlse the police authorities to suppress Its fu- ture publication; nor is It within the power of a municipal corporation to de- clare by ordinance that a certain news- paper Is a public nuisance and to forbid its sale within the city.*

In support of this statement, Corpur Jurls cites the opinion of the Texas Court of Criminal .Appeals in Ex iFd; Relll, 22 S.V. 923. Judge Davldaon, ln that oplnloh,

*The power to prohibit the publl- cation of newspapers is not within the compass of leglslatlve actlon, In this state, and any lav enacted fbr that par- pose vould clearly be ln derogation of the bill of rights . . . The power to suppress one concedes the power to sup- press all wh$ther such publications are polltkl, secular, religious, de- cent or indecent, obscene or othenise.

c : Honorable U. Lee OIDa&el, September 12, 1939, Page 5

The doctrine of the Constitution must

scoring ours). When seli-seeking l’promoterss prey upon the cred- nllty of innocent persons the Legislature may propertyz- strain the SrauduIsnt aotivlty of these promoters, so doing It must be csreN to strlks only at the abuse and not ihe privlIege of the innocent vlctlms. The courts have ever been alert to proteot from ail manuer of leglslatlve encroachment the ~constltutional guarantee of freedom of speech and ress; In Grosjean vs. American Press Company 207 U.S. 248 , q,L. Ed. 660, the Unlted States Supreme &ourt struck dour.8 Loulslsna stat- ute which imposed a 2% gross receipts tai on newspapers ,havlng a circulation of over 20,000. The opinion in that case lu revlevln- wrier dsclslons onlthe question states: *This court had occasion ln gesr vs. Mnnesota 283~u.S. 7l3, to dls- cuss at some i ength the subject ln Its generaI aspect. .The conclusion there stated Is that the ob)eot of the oonstl- tutlonal urovlslons was to wevent pre-

The right to assemble and the right of free s eeoh are not mere abstract prlnolples, but are tranbIat- a %1s into practical. experience. As said by Wlnslw, C.J. of the Supreme Court of Ylsoonsin, dissenting ln State vs. Phelps, I28 gY. 1041:

“The right to vote mesns the right to.vote effectively, not merely to cast a ballot under circumstances vhere I t;f~;;:zln that It csn have no practlcaI

And so the right to assemble and the right to pe- tition as guaranteed by the Constitution of Texas, Is the right to Sssemble aud petition effectively; not merely to come together ln SaLall groups and discuss questions of mu- tual interest, vlthout any power to bring their ideas to the attention of others. In order for people who are soat- tered over the vast ‘expanse that Is Tesas to band together -for their common good”. they must be permitted to pool their rosourcos as us11 as their Idea. In order for them to @ontrIbute money to their common cause, someone must be allared to collect It. If a group of persons may not designate one of their number to collect dues or contributions from smong them ln order that the purpose of the organlsatlon may be carried out then freedom of speech and the right to assem- ble’and petition are but meanlugless abstractions+

In ‘State vs. Pierce 163 WISC. 615, 158 B.W. 696, the Ulsoonsiri Supreme Court de&red unoonstltutlonaI as

Honorable Y. Lee O*Daniel, September 12, 1939, Page 5

violating the constitutional guarantee of freedom of speech, a statute which forbade one not a candidate or oommlttee- man from spending money outside his own county for political The language of this opinion Is sxtremely foroes- EY”““’ “If this be not au abridgement of freedom of s eech It would be difficult .to lmaglne wrlat would be. Under such a law no pioneer In any reform which de- Edna?% %%i?okO%%y?nd communicate his sentiments at his cun expense to hls fellow cltleens of other counties without oommlttlng a crime. Under such law8 no great propaganda for better laws and better political condi- tions vhlch has not been formally taken up by a political party can ever be car- i&ed on, and the reformer whose eye kindles with the davning light of a bet- ter day must be content to confine his personal ~aotlvltles to the inhabitants of his own small bailiwick. Almost every fovard step ln polltloal and gov- ernmental affairs comes as a result of long agitation and discussion ln the press, on the rostrum, end in the open forum of personal contact.”

The pbllospphy behind vigilant defense of the un- trammeled expresslon of Ideas has never been more effectlve- ly expressed than by Justice Holmes, dissent,lng in Abrams vs. gy3;d States, 250 U.S. 616, 40 8. Ct. Rep. 17, 63 L. Rd.

‘But when men have realized that time has upset many flghtlng faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultlqte good desired Is better reached by free trade in Ideas, - that the best test of truth is the paver of the thought to get Itself accepted ln the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That at any rate, Is the theory of oti Constl- tution. It Is an experiment, as all life Is an experiment..

For&he reasons set out in the foregofng discus- sion,% 1s our o lnlon that Section 2 of House Bill So. 132 vlolates Sect Pon 27 of Article I of the Texas Constltu- tlon insofar as It attempts to prohibit the sollcltatlon and collectlSn of money for any of the bona fide purposes set out In the Act. Insofar, however, as Section 2 prohibits the so- llclt8tlon or collection of money for the n,,,tended- &, etc., the.sectlon Is valid. The word “pretended” has a well defined meaning, i.e., false, unreal, simulated or feigned. 6 Words & Phrases, p. 79 (Third Series).

Honorable W. Lee OQaniel, September 12, 1939, page 6

As said by Stayton, J., in Astuguevllle vs. Lous- tauuau, 61 Tex. 233, at p. 239 referring to the use of the word “pretended”, in Section 56, Article XVI, of the Texas Constitution:

“The word ‘pretended’ is evidently used in its ordinary sense and means. ‘feigned’, ‘not real’.”

Surely It cannot be questioned but that the Legis- lature may properly prohibit the collection of money for any m purpose.

It Is a familiar rule that a statute will, If pos- sible be given a construction so as to render It constitu- tionai. Section 7 of the Act declares8

“If any part of this Act is held unconstitutional or otherwise invalid, such unconStitut&allty or lnvalldlty shall not impair the remaining part of this Act .”

As said by the Court of Criminal Appeals of Texas in Anderson vs. State, 21 S.W. (26) 4992

‘Thus construed the vallaity of a part of the section of the act under consideration can be sustained. The act may admit of another construction. However, it is the annoticement of the decisions that, where a statute admits of two constructions, one which renders it unconstitutional and one constltu- tlonal, the latter construction should be given it. Madden vs. Hardy, 92 Tex. 613, 50 S.W. 926; Railway Company vs. Gross, 47 Tex. 428. Applying the rule thus announced, we are of the opinion that the section of the act under con- sideration is not Invalid In Its en- tlrety.n Accordingly, It Is our oplnlon that Section 2 of House Bill No. 132 is constitutional Insofar as It prohibits the solicitation and collection of dues or money for the pretended purpose. Replying specifically to your questions, we beg to advise that Section 2 of this Act, as herelnabove construed, In no manner prevents the assembling together of any organiaa- tlons nor does it inhibit the sollcltatlon of dues or funds from ihe membership, so long as such solicitation and collec- tion is for the bona fide purpose (as distinguished from the pretended, simulated or fraudulent purpose) of SponSOring SO- clal security legislation, or for any other lawful purpose. Replying to your second question, we are of the opinion that Section 2 of House Bill No. 132, as herein oon- strued, is sufficiently definite to enable the district at- torneys of the state by criminal prosecution, as provided in Section 4, or the Attorney General by civil suits for j.ujUnC- tion, as provided j.n Section 5, effectively to deter the SO- licltation or colle~tlon~ of money for p$v?te gain-upon a _

Honorable W. Lee O'Daniel, September 12, 1939, Page 7 that Section 1 of the Act is entirely valid.

Yours very truly ATTORNEY G- OF TEKAS

By /a/ Walter R. koch

Waiter R. Koch Assistant

WFLKtFGtwb

This opinion has been considered lxi conference, approved,.and is now ordered filed. GERALDC. MANN ATTORNEYGFNEFLAL OF TEXAS