Swoyersville Borough v. Wargo

Valentine, J., — Defendants have appealed from a conviction and sentence for the violation of an ordinance of the Borough of Swoyersville, which provides: “That it shall not be lawful for any itinerant person or persons to hawk, peddle or offer for sale, either privately or by public outcry upon the public streets or places within the limits of the borough, any patent medicines, soaps, nostrums, salves, or any other article or articles, or peddlers’ wares, without a license issued by the burgess.” The ordinance further provides: “Any person or persons found selling or offering for sale any article in violation of section 1 of this ordinance, shall forfeit and pay a fine of not less than five dollars or more than ten dollars with costs, for each and every offense.” The testimony showed that the defendants had either sold or distributed “pamphlets or tracts” issued or published by the “International Bible Students Association” or the “Watch Tower Bible and Tract Society.” Defendants’ counsel has forcefully urged that the two associations interested in the distribution of the pamphlets are of a religious character, and that the distribution of the pamphlets was the work of charity. Doubtless the two organizations are engaged in what is regarded by their members as religious work, but the controlling question is not as to the general character of the work that the organizations are engaged in, nor the character of the [363] books or literature published or distributed by them other than the pamphlets distributed or sold by the defendants. There is in evidence one pamphlet produced by a witness for the Commonwealth, which pamphlet was concededly sold or delivered by the defendant, Wargo. We express no opinion as to the character of this magazine or pamphlet; its nature is best shown by the following excerpts therefrom: “The clergy. “In the first place, the clergymen are not Christians. A Christian is one who believes that God through Christ has provided salvation for mankind. The clergymen as a general rule do not believe that. They pose before the people as preachers, and yet they are diligent in keeping the people away from the Bible. Daily they are becoming bolder in denying the Bible; and instead of referring the people to the remedy God has provided, they are telling the people that big business and the politicians and themselves are their guardians and saviors. The majority of these clergymen call themselves Modernists. That means that they deny the Bible account of creation, and the fall of man, and the redemption through Christ Jesus’ sacrifice. The scheme is to turn the minds of the people away from the Bible and away from God, and turn them to the worship of men or other creatures. . . . “The wwr. “The clergy as a class claim to be followers of Jesus Christ, and make the people believe that they are. The Scriptures designate Jesus Christ as ‘The Prince of Peace.’ When he was on earth he repeatedly declared the law which his followers must obey: ‘Thou shalt not kill.’ Any one who is a true follower of Jesus Christ must be obedient to this command. Any one claiming to be a follower of Christ and who at the same time urges men to kill each other is a hypocrite and party to the crime of the killing. There might be some excuse or extenuating circumstances for men who know nothing about the Bible to engage in war, but there is no excuse or extenuating circumstances in favor of a Christian voluntarily engaging in war or urging others to do so. “During the World War of 1915 to 1918 the clergymen advocated war, urged young men to go to war to kill their fellow man, used their church buildings for recruiting stations, and denounced and persecuted every one who expressed conscientious scruples against killing. Everybody knows this statement to be true. They went even further than that. Many of the clergymen told young men that if they would go to war and die upon the battle-field their blood would be counted in with that of Jesus and their souls would immediately be winged off to glory. They should have known better; because war is murder and no murderer has eternal life. (1 John 3:15.) If these men, contrary to the Word of the Lord, advocate the killing of other fellow men and at the same time claim to be Christians, they are both hypocrites and unsafe advisers of the people. The evidence is too voluminous for me to cite all of it; but I give you here some, naming the clergymen who are guilty of duplicity. “There never was any danger of Germany invading America. Every sensible man knew that that was impossible. And yet some of the most zealous advocates of America’s entering the war were the clergymen. “The Reverend S. Parkes Cadman, an Englishman who resides in America and who is president of the organization called the Federal Council of Churches of Christ in America, just before the war and while answering questions before the Bedford Branch of the Y. M. C. A. in Brooklyn, passion [364] ately exclaimed: ‘Prepare, Prepare, Prepare for war.’ When he was asked his opinion of students who refused to engage in military training he replied: ‘They are parasites, suckers, and rubbish. The teacher that teaches them they have no right to bear arms for the State should be fired out of his position.’ Dr. Cadman with others boasted of the fighting rector, Dr. Reiland. “The Massachusetts Clerical Association was one of the first to vote for America to enter the war, and a delegation of the prominent clergy visited Washington to combat the ‘unchristian influence’ of pacifists. They made it their business to use their church buildings for the preaching of war sermons. When the government enacted the conscription law and inserted a section making it possible for a Christian to decline active military service, nearly every clergyman in the land opposed those who took advantage of this provision of the law. They spoke of'such men as ‘poor pussy-foot pacifists.’ “Dr. S. E. Young, of the Presbyterian Church, called them cowards and traitors because they expressed their belief in God and in Christ and insisted on obeying God rather than man. “Bishop Kinsolving, of Texas, declared that ‘such men should be driven not only from the country, but from the earth.’ “The Reverend Howard Ganster, of Waukegan, 111., ‘advocated the organization of a society for the committing of murder of persons who do not stand up or who leave the building when the “Star Spangled Banner” is played.’ “Dr. Henry Van Dyke delivered a so-called sermon, and referring to a gentleman who was candidate for mayor in New York, and who was against America’s entering the war, said: ‘I would hang every one, whether or not he be a candidate for mayor, who lifts his voice against America entering the war.’ “Reverend Gillis, a Catholic, said: ‘Jesus Christ is the Prince of Peace, but Pontius Pilate was the Prince of Pacifists.’ “Bishop Cooke advocated that those who desire to take advantage of the law for non-combatant service should ‘be deprived ... of all political and social and civil rights.’ “Dr. Eaton was made chairman of the National Service Section of the Emergency Fleet Corporation, and performed the duty of delivering fight-talks in the shipyards. He said: ‘When a spy comes sneaking around with a bomb- don’t say, “Let us pray,” but take him out there on the marsh and tie him down and place the bomb on his chest. Light it and stand off and watch him blow to his Kaiser, to hell. Be regular he-men.’ “Evidently Eaton’s conscience hurt him so much after the war that he got himself elected to Congress from New Jersey. “The Reverend W. W. Bustard, John D. Rockefeller’s loyal servant, from his pulpit exclaimed: ‘To hell with the Kaiser.’ “Dr. Newell D. Hillis, of Brooklyn, pastor of the Plymouth Church, was one of the most vehement advocates of America’s entering the war. When the nation did enter the war, the American Bankers’ Association sent forth Hillis as its missionary to preach war. He prepared the sermons which hundreds of thousands of other pastors delivered, urging young men into the trenches. When the war ended and millions were in sorrow because of what had happened, Dr. Hillis, instead of visiting the widows and orphans as the Scriptures command that a Christian shall do (James 1:27), still continued to express his vindictiveness and venom against the helpless people of Germany who had been driven into the war by their war machine. . . . “No general, no man in the army, nor any warlord ever gave utterance to such diabolical and wicked words as those written by Hillis. These clergymen [365] are the ones who, with pious faces and sanctimonious words, tell the peoples that their organized system of oppression and murder represents Christ on earth and therefore constitutes ‘organized Christianity,’ or Christendom. “Reverend George Atwater directly linked the so-called Christian church with the war..... “In the House of Representatives at Washington in January, 1918, the Reverend Billy Sunday was invited to deliver the morning prayer. He would make it appear that the Lord is as bloodthirsty as some of the clergymen. He said ‘Thou knowest, O Lord, that no nation so infamous, vile, greedy, sensuous, bloodthirsty, ever disgraced the pages of history. Make bare Thy mighty arm, O Lord, and smite the hungry, wolfish Hun, whose fangs drip with blood, and we will for ever raise our voices in Thy praise.’ The newspapers recorded that when Sunday finished his harangue, for the first time in its history the House applauded a prayer. ‘‘Political. “There are very few statesmen left on the earth. Most men in public life are professional politicians. Politics is their business. A great number of them are either directly or indirectly in the pay of some big financial institution. High finance sees to it that all the leading political parties nominate for office men that can be influenced by the corporations. When the election is held, no matter who loses the corporations win and the people pay the bills. “Even the courts are corrupted by big business. When big business is pitted against the common people, the people have no show in the courts. “War is declared by the law-making body yielding to the influence of selfish interests apparently supported by the people. The politicians quickly pass emergency laws which compel every one of a certain age to render military service. The war is on, and the people are urged to buy the bonds to carry on the war. “The clergy are called into action. They become the spellbinders. They use their pulpits to harangue the people and urge them to go to war. When some of these preachers go with an army as spiritual advisers, they always manage to remain at a safe distance in the rear. They work hand in glove with their allies, big business and big politicians. They work up great excitement amongst the people, and then they are ready to go to any extreme. . . . “The purpose is to show that the clergymen are sailing under false colors and misleading the people; to show them that the clergymen are unsafe guides; to show the necessity of a power greater than that of selfish men to bring the people relief and prosperity. Attention is called to the wickedness of big finance and big politicians not merely to denounce them, and with no hope of reforming them, but to show the class of men with whom the clergymen have entered into an alliance. Men are judged by the company that they keep. The fact that they deny the Bible and join hands with an oppressive class shows that the clergymen are practicing a fraud upon the people, and that so-called organized Christianity is a fraud and a snare.” Certainly, the distribution of such literature is, in no sense, a work of “charity.” We should much prefer to be classified with those condemned by the above-quoted passages than to be associated with the persons responsible for their condemnation. Is the sale of magazines and pamphlets a violation of the ordinance? The ordinance is designed to prevent hawking and peddling by itinerant persons without the procuring of a license. It makes it unlawful to hawk, peddle or offer for sale “any patent medicines, soaps, nostrums, salve or any other arti [366] cle or articles, or peddlers wares” without having procured a license as therein provided. The ordinance is penal and must be strictly construed: 29 C. J. 228. It is not designed to prohibit the selling of books or magazines, nor does the sale of magazines or pamphlets fall within its prohibition. Magazines and pamphlets are not “peddlers wares.” Boys who sell newspapers on the streets are not peddlers and do not require a peddler’s license: Rex. v. Prosterman (Sask.), 11 West L. R. 141, 29 C. J. 223. If the defendants can properly be convicted for a violation of the ordinance, then by a similar process of reasoning the conclusion would be reached that boys selling weekly magazines, such as the “Saturday Evening Post,” would be guilty of violating its provisions. The only article sold or offered for sale by the defendants were pamphlets ' or tracts; nothing else was in their possession and nothing else was offered for sale. Tracts, magazines or newspapers cannot be deemed “other articles” within the meaning of that term as used in the ordinance. “The merchandise included under the term ‘other articles’ must be of a generic character to that previously designated:” Renick v. Boyd, 99 Pa. 555; Golien v. Susquehanna Coal Co., 54 Pa. Superior Ct. 299; Pittsburgh v. Pittsburgh Ry. Co., 47 Pa. Superior Ct. 476; Burns v. Coyne, 294 Pa. 512. We deplore the distribution of such literature as the evidence showed the defendants had distributed and fully recognize that the passages quoted spread the doctrines of communism and sedition, and that it would be far better for the community as well as for the causes of self-government and of religion if magazines or pamphlets like the one offered in evidence were not printed or distributed; but the distribution, or even the sale of the same, does not fall within the prohibition of the ordinance appealed from. Therefore, now, June 27, 1931, the judgment of conviction is reversed. From Frank P. Slattery, Wilkes-Barre, Pa.