                               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
