HO. 3086 

HOUSe Bill NO. 132, Forty-slrth Leglslature, is unconstitutional insofar as 

it attempts to prohlblt the sollcltatlon or collection of money for the 

bona fide purpose of sponsoring, etc., 

social security legislation; but Is 

constitutional insofar as It makes unlawful the aollcltation or oolleotlon 

of money for any m (or fraudulent) purpose. 

OFlpICg OF THE ATTOIUET GglC%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 following two questions: 

e(l) Will Section 2 of this Act prevent the assembling together of orgsnlsatlons, local or state-wide ln their nature and the solicitation of dues or fuuds 

from a membership to Abe used by the organleatlon 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 carrylng 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 purpose 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)unotlon with this opinion. 

bectlon 2 of the Aot makes it *unlawful for any 

person firm or corporation to solicit or collect dues or 

money h or himself, or Itself or any organization, a8SOCiatlon, 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 Becurlty Benefits from the State of Texas or 

from the United States Governuient or 

who are eligible to receive Soclai Security 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 prohibltion 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& governmental 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 legislation 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 hlrlng 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 collection 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 organize for the purpose of sponsoring social security leglslatlon.” 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 jurlsprudence that those rights vhloh the Constitution protect8 

oaunot be made ineffective by removing the necessary lncidents 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 advertislng and sollcltlng shcemes that result in the obtaining of 

money by var lour persons . . .* But in their zeal to correct 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 constltutlonal 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 proprietor Is subJect to punishment under 

the criminal lav does not authorlse the 

police authorities to suppress Its future publication; nor is It within the 

power of a municipal corporation to declare by ordinance that a certain newspaper 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 publlcation of newspapers is not within the 

compass of leglslatlve actlon, In this 

state, and any lav enacted fbr that parpose vould clearly be ln derogation of 

the bill of rights . . . The power to 

suppress one concedes the power to suppress all wh$ther such publications 

are polltkl, secular, religious, decent 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 crednllty of innocent persons the Legislature may propertyzstrain 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. 2 48 , q,L. Ed. 660, the 

Unlted States Supreme &ourt struck dour.8 Loulslsna statute 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 

cuss at some i 

283~u.S. 7l3, to dlsength the subject ln Its 

generaI aspect. .The conclusion there 

stated Is that the ob)eot of the oonstltutlonal urovlslons was to wevent preThe right to assemble and the right of free 

s eeoh are not mere abstract prlnolples, but are tranbIata % 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 petition 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 mutual interest, vlthout any power to bring their ideas to 

the attention of others. In order for people who are soattered 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 assemble’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 oommltteeman from spending money outside his own county for political 

EY”““’ 

The language of this opinion Is sxtremely foroes- 

“If this be not au abridgement of 

freedom of s eech It would be difficult 

.to lmaglne w rla t would be. Under such a 

law no pioneer In any reform which deEdna?% %%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 conditions vhlch has not been formally taken 

up by a political party can ever be cari&ed on, and the reformer whose eye 

kindles with the davning light of a better day must be content to confine his 

personal ~aotlvltles to the inhabitants 

of his own small bailiwick. Almost 

every fovard step ln polltloal and governmental 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 untrammeled expresslon of Ideas has never been more effectlvely 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 Constltution. It Is an experiment, as all 

life Is an experiment.. 

For&he reasons set out in the foregofng discussion,% 1s our o lnlon that Section 2 of House Bill So. 

132 vlolates Sect P on 27 of Article I of the Texas Constltutlon 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 sollclt8tlon or collection of money for the n,,,tended- 

&, etc., the.sectlon Is valid. The word “pretended” 

has a well defined meaning, i.e., 

or feigned. 

false, unreal, simulated 

6 Words & Phrases, p. 79 (Third Series). 
Honorable W. Lee OQaniel, September 12, 1939, page 6 

As said by Stayton, J., in Astuguevllle vs. Loustauuau, 61 Tex. 233, at p. 239 referring to the use of the 

word “pretended”, 

Constitution: 

in Section 56, Article XVI, of the Texas 

“The word ‘pretended’ is evidently 

used in its ordinary sense and means. 

‘feigned’, ‘not real’.” 

Surely It cannot be questioned but that the Legislature may properly prohibit the collection of money for any 

m purpose. 

It Is a familiar rule that a statute will, If possible be given a construction so as to render It constitutionai. 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 constltutlonal, 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 consideration is not Invalid In Its entlrety.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 organiaatlons nor does it inhibit the sollcltatlon of dues or funds 

from ihe membership, so long as such solicitation and collection is for the bona fide purpose (as distinguished from the 

pretended, simulated or fraudulent purpose) of SponSOring SOclal 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 oonstrued, is sufficiently definite to enable the district attorneys of the state by criminal prosecution, as provided in 

Section 4, or the Attorney General by civil suits for j.ujUnCtion, as provided j.n Section 5, effectively to deter the SOlicltation 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. 

GERALD C. MANN 

ATTORNEY GFNEFLAL OF TEXAS