Supreme Court of the United States 

BUSEY et al.

v.

DISTRICT OF COLUMBIA.

No. 235. 

Argued June 1, 1943.

Decided June 14, 1943.

319 U.S. 579

On Writ of Certiorari to the United States Court of Appeals for the District of Columbia.

David Busey and Orville J. Richie were convicted of selling magazines on the streets of the District of Columbia without first procuring a license and paying license tax, the convictions were affirmed by the United States Court of Appeals for the District of Columbia, 75 U.S.App.D.C. 352, 129 F.2d 24, and the defendants bring certiorari.

Judgment vacated and cause remanded with directions. 

West Headnotes

Criminal Law 110 1189

110 Criminal Law

     110XXIV Review

          110XXIV(U) Determination and Disposition of Cause

               110k1185 Reversal

                    110k1189 k. Ordering New Trial. Most Cited Cases

Where appellate court affirmed conviction in reliance on decision which had been affirmed by Supreme Court, but thereafter Supreme Court vacated its earlier judgment and rendered contrary decision, the judgment would be vacated and cause remanded to enable the appellate court to re‑examine its ruling in the light of subsequent decision of Supreme Court.  D.C.Code 1940, § 47‑2336;  U.S.C.A.Const. Amend. 1.

**1277 *579 Mr. Hayden C. Covington, of Brooklyn, N.Y., for petitioners.

Mr. Vernon E. West, of Washington, D.C., for respondent.

*580 PER CURIAM.

In this case petitioners, who are Jehovah's Witnesses, were convicted of selling on the streets of the District of Columbia, magazines whih expound their religious views, without first procuring the license and paying the license tax required by s 47‑2336 of the District of Columbia Code (1940).  In affirming the conviction the Court of Appeals for the District of Columbia below had two questions before it: Whether the statute was applicable to petitioners, and if so whether its application as to them infringed the First Amendment.  The court construed the statute as applicable and sustained its constitutionality (75 U.S.App.D.C. 352, 129 F.2d 24), following the decision in Cole v. City of Fort Smith, 202 Ark. 614, 151 S.W.2d 1000, the judgment in which was affirmed by this Court in Bowden v. Fort Smith, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691, 141 A.L.R. 514, one of the cases argued together with Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 86 L.Ed. 1691, 141 A.L.R. 514.  Since the decision below, and after hearing reargument in the Opelika case, we have vacated our earlier judgment and held the license tax imposed in that case to be unconstitutional.  Jones v. Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292.  Petitioners urge us to construe the District of Columbia statute as inapplicable in order to avoid the constitutional infirmity which might otherwise exist‑an infirmity conceded by respondent on the oral argument before us.  In view of our decisions in the Opelika and Murdock cases, we vacate the judgment in this case and remand the cause to the Court of Appeals for the District of Columbia to enable it to reexamine its rulings on the construction and validity of the District ordinance in the light of those decisions.  Cf. People ex rel. Whitman v. Wilson, 318 U.S. 688, 63 S.Ct. 840, 87 L.Ed. 1083, and cases cited.

So ordered.

**1278 Judgment vacated and cause remanded with directions.

Mr. Justice RUTLEDGE took no part in the consideration or decision of this case.

U.S. 1943.

Busey v. District of Columbia

319 U.S. 579, 63 S.Ct. 1277, 87 L.Ed. 1598