### HO.3086

HOUSe Bill NO. 132, Forty-slrth Leglslature, is unconstitutional insofar as it attempts to prohlblt the sollcltatlon or collection of moneyfor the bona fide purpose of sponsoring, etc., social security legislation; but Is constitutional insofar as It makesunlawful the aollcltation or oolleotlon 

### ofmoneyforanym (or fraudulent) purpose.

OFlpICgOFTHEATTOIUET 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

Weare 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) 

### WillSection 2 of this Act prevent the assembling together of orgsnlsatlons, local or state-wide ln their nature andthe solicitation of dues or fuuds from amembership to Abeused bythe organleatlon for the purpose of seourlng the passage of legislation in their behalf? I would contemplate that suoh anassembly would dothe usual and customary things in forming their organlsatlons and ln carrylng out the purpose of it. If you advise that they mayso assemble, Ivould like for you to state the extent to which they maygounder 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 andjust howfar the authorities may go in preventing the collection of fuuds from persons eligible to receive pensions.*
Weare attaching to this opinion a copy of **House** Bill Ho. 132 so that the samemaybe 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** moneyhor himself, or Itself or any organization, a8SOCiatlon, partnership or corporation for the purpose or pretendedHonorable 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 anykIni, or benefits for anyperson or group of persons from the Social 6eCIWity program as it applies to old age assistance, blind persons,, or dependent anddestltute 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 whoare 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 3seeks expressly to authorize those over 65years of age to organize andto sponsor Social security legislation. TheAct Is silent as to whether persons under 65years of age mayorganlte to sponsor such legislation.

What Is prohibited to all persons (by Section 2) Is the solicitation and collection of moneyfor the purpose or pretended purpose of sponsoring social security. It matters not howwilling the contributor or howunselfish the collector, the oollectfon of moneyto spans& governmental aid to the aged, the blind, or,dependent c.hlldren Is madea crime byHouseBill h’o. 132, pinishable by a term of not morethan 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. Underthis statute, it would be unlawful for aTovnsend Club to collect dues from its members, and its treasurer would be subject to imprisonment. It mustbe 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, andthe like. If such an organization cannot collect dues from Its membersIt cannot exist. By forbidding the collection of moneyfor such purposes, the Legislature has forbidden the organization Itself as effeotlvely as though it had said: “It shall be unlawful for anypersons to organize for the purpose of sponsoring social security leglslatlon.” This the Legislature maynot do for Article 1, Section 27, of the Texas Constltutlon deciares8 *The citizens shall have the right, in a peaceable mannerto assemble together for their commongood, 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 amongthe most cherished llbertlea of a free people, andthey are guaranteed ln uuequlvocable language w the ~lll of Rights of both the United States andthe Texas Constitutions.Honorable Y. Lee O’Danlel., September 12, 1939, Page 3

It 18an axlomatlo principle ‘of our jurlsprudence that those rights vhloh the Constitution protect8 oaunot be madeineffective by removing the necessary lncidents to the $nnJoymentof those rights. TheLlgtilature maynot doby indirection what it could not do directly. The ~evltable~effeot of Section 2of HouseBill No. 132 Is to render ineffective the peoples’ constitutional right *in apeaceable mannerto assemble together” for purposes which cannot be anything but lawful. Normay the exercise of this right be limited (as Section 

### 3seems to -1~) only to those whoare eligible to receive old age assistance under existing laws. TheState andFederal 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 donot 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. Theywere seeking only to remedy certain notorious evils which had UiSeIl. Theywere directing their attention (as stated In the emergencyclause 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, andto restrain the predatory activities of unscrupulous promoters, the Legislature Inadvertently forbade the lawful aotivltles of the very persons they were seeking to protect, -andln so doing transgressed the constltutlonal llmltatlons of leglslatlva~aotlon.

As stated ln 12Corpus Juris, ,p. 

### 953: *But the mere fact that there has been published ln anewspaper 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 amunicipal corporation to declare by ordinance that a certain newspaper Is a public nuisance andto 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, andany 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). Whenseli-seeking l’promoterss prey uponthe crednllty of innocent persons the Legislature maypropertyzstrain the SrauduIsnt aotivlty of these promoters, so doing It must be csreN to strlks only at the abuse andnot ihe privlIege of the innocent vlctlms.

The courts have ever been alert to proteot from ail manuerof leglslatlve encroachment the ~constltutional guarantee of freedom of speech and ress; In Grosjean vs. American Press Company 207U.S. 248
, q,L. Ed. 660, the Unlted States Supreme&ourt struck dour.8 Loulslsna statute which imposed a 2%gross receipts tai on newspapers ,havlng acirculation 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 somei 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 byWlnslw, C.J. % of the SupremeCourt 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

### nopractlcaI

Andso 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 cometogether ln SaLallgroups and discuss questions of mutual interest, vlthout any power to bring their ideas to the attention of others. In order for people whoare soattered over the vast ‘expanse that Is Tesas to bandtogether -for their commongood”

. they must be permitted to pool their rosourcos as us11 as their Idea. In order for themto @ontrIbute 

### moneyto their commoncause, someone mustbe allared to collect It.

If a group of persons maynot designate one of their numberto collect dues or contributions from smong themln order that the purpose of the organlsatlon maybe carried out then freedom of speech andthe right to assemble’and petition are but meanlugless abstractions+

In ‘State vs. Pierce 163WISC. 615, 158 B.W. 696, the Ulsoonsiri SupremeCourt de&red unoonstltutlonaI asHonorable 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 oommltteemanfrom spending moneyoutside his owncounty 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

rla .to lmaglne w t would be. Under such a law nopioneer In anyreform 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 andbetter political conditions vhlch has not been formally taken up by a political party can ever be cari&ed on, andthe reformer whose eye kindles with the davning light of a better daymustbe content to confine his personal ~aotlvltles to the inhabitants of his ownsmall bailiwick. Almost every fovard step ln polltloal and governmental affairs comes as a result of long agitation and discussion ln the press, onthe 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 byJustice Holmes, dissent,lng in Abramsvs. gy3;d States, 250U.S. 

### 616,408. 

### Ct.Rep. 

### 17,63L. Rd.

‘But whenmenhave realized that time has upset manyflghtlng faiths, they maycometo believe even more than they believe the very foundations of their ownconduct 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; andthat truth is the only ground uponwhich their wishes safely can be carried out. That at anyrate, 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 olnlon that Section 2 ofHouse Bill So. 132 vlolates SectP on 27 of Article I of the Texas Constltutlon insofar as It attempts to prohibit the sollcltatlon and collectlSn of moneyfor any of the bona fide purposes set out In the Act.

Insofar, however, as Section 2prohibits the sollclt8tlon or collection of moneyfor the n,,,tended- &, etc., the.sectlon Is valid. Theword “pretended” has awell defined meaning, i.e., or feigned. false, unreal, simulated



### 6Words &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 mayproperly prohibit the collection of moneyfor 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 anypart 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 bythe 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 mayadmit 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. Maddenvs. Hardy, 92Tex. 613, 50 S.W. 926; Railway Companyvs. Gross, 47 Tex. 428. Applying the rule thus announced, weare 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 moneyfor the pretended purpose.

Replying specifically to your questions, webeg to advise that Section 2of this Act, as herelnabove construed, In no mannerprevents 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 SponSOringSOclal 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.nSection 5, effectively to deter the SOlicltation or colle~tlon~ of moneyfor 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- OFTEKAS
By /a/ Walter R. koch
Waiter R. Koch Assistant

WFLKtFGtwb

This opinion has been considered lxiconference, approved,.and is nowordered filed.GERALD C. MANN ATTORNEY

GFNEFLAL

OFTEXAS