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Opinion of the Court.

362 U.S.


Court judgment imposing a $10 fine, upheld by state appellate court, held invalid as in contravention of the Fourteenth Amendment).

The city correctly assumes here that if there is no support for these convictions in the record they are void as denials of due process. The pertinent portion of the city ordinance under which petitioner was convicted of loitering reads as follows:

“It shall be unlawful for any person without visible means of support, or who cannot give a satisfactory account of himself, ... to sleep, lie, loaf, or trespass in or about any premises, building, or other structure in the City of Louisville, without first having obtained the consent of the owner or controller of said premises, structure, or building; ... $ 85-12,

Ordinances of the City of Louisville. 11 In addition to the fact that petitioner proved he had “visible means of support,” the prosecutor at trial said “This is a loitering charge here. There is no charge of no visible means of support.” Moreover, there is no suggestion that petitioner was sleeping, lying or trespassing in or about this cafe. Accordingly he could only have been convicted for being unable to give a satisfactory account of himself while loitering in the cafe, without the consent of the manager. Under the words of the ordinance itself, if the evidence fails to prove all three elements of this loitering charge, the conviction is not supported by evidence, in which event it does not comport with due process of law. The record is entirely lacking in evidence to support any of the charges.

10 For illustration, the city's brief in this Court states that the questions presented are “1. Whether the evidence was sufficient to support the convictions, and therefore meets the requirements of the due process clause of the Fourteenth Amendment. ..."

11 Section 85–13 provides penalties for violation of $ 85-12.


Opinion of the Court.

Here, petitioner spent about half an hour on a Saturday evening in January in a public cafe which sold food and beer to the public. When asked to account for his presence there, he said he was waiting for a bus. The city concedes that there is no law making it an offense for a person in such a cafe to “dance," "shuffle" or "pat” his feet in time to music. The undisputed testimony of the manager, who did not know whether petitioner had bought macaroni and beer or not but who did see the patting, shuffling or dancing, was that petitioner was welcome there. The manager testified that he did not at any time during petitioner's stay in the cafe object to anything petitioner was doing and that he never saw petitioner do anything that would cause any objection. Surely this is implied consent, which the city admitted in oral argument satisfies the ordinance. The arresting officer admitted that there was nothing in any way “vulgar” about what he called petitioner's "ordinary dance," whatever relevance, if any, vulgarity might have to a charge of loitering. There simply is no semblance of evidence from which any person could reasonably infer that petitioner could not give a satisfactory account of himself or that he was loitering or loafing there in the ordinary sense of the words) without “the consent of the owner or controller" of the cafe.

Petitioner's conviction for disorderly conduct was under $ 85–8 of the city ordinance which, without definition, provides that “[w]hoever shall be found guilty of disorderly conduct in the City of Louisville shall be fined . etc. The only evidence of “disorderly conduct” was the single statement of the policeman that after petitioner was arrested and taken out of the cafe he was very argumentative. There is no testimony that petitioner raised his voice, used offensive language, resisted the officers or engaged in any conduct of any kind likely in any way to adversely affect the good order and tranquillity of the

Opinion of the Court.

362 U.S.

City of Louisville. The only information the record contains on what the petitioner was “argumentative” about is his statement that he asked the officers "what they arrested me for." We assume, for we are justified in assuming, that merely "arguing” with a policeman is not, because it could not be, "disorderly conduct” as a matter of the substantive law of Kentucky. See Lanzetta v. New Jersey, 306 U. S. 451. Moreover, Kentucky law itself seems to provide that if a man wrongfully arrested fails to object to the arresting officer, he waives any right to complain later that the arrest was unlawful. Nickell v. Commonwealth, 285 S. W. 2d 495, 496.

Thus we find no evidence whatever in the record to support these convictions. Just as “Conviction upon a charge not made would be sheer denial of due process, so is it a violation of due process to convict and punish a man without evidence of his guilt.1

The judgments are reversed and the cause is remanded to the Police Court of the City of Louisville for proceedings not inconsistent with this opinion.

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Reversed and remanded.

12 De Jonge v. Oregon, 299 U. S. 353, 362. See also Cole v. Arkansas, 333 U. S. 196, 201.

13 See Schware v. Board of Bar Examiners, 353 U. S. 232; United States ex rel. Vajtauer v. Commissioner, 273 U. S. 103, 106; Moore v. Dempsey, 261 U. S. 86; Yick Wo v. Hopkins, 118 U. S. 356. Cf. Akins v. Texas, 325 U. S. 398, 402; Tot v. United States, 319 U. S. 463, 473 (concurring opinion); Mooney v. Holohan, 294 U. S.

Opinion of the Court.



No. 80. Argued February 24, 1960.—Decided March 21, 1960.

Appellant, a Georgia corporation, has no office or place of business

in Florida and no property or regular full-time employees there; but it does have in Florida ten brokers, wholesalers or jobbers who solicit sales of appellant's products on a commission basis and forward orders to Georgia, where they are accepted and whence the goods are shipped to Florida residents. Held: A Florida statute which levies a tax on the use of such products in Florida and makes appellant responsible for its collection from Florida purchasers is not repugnant either to the Commerce Clause of the Constitution or to the Due Process Clause of the Fourteenth Amendment. General Trading Co. v. State Tax Comm'n, 322 U. S. 335, followed. Miller Bros. Co. v. Maryland, 347 U. S. 340, distinguished. Pp.

207-213. 105 So. 2d 775, affirmed.

George B. Haley, Jr. argued the cause for appellant. With him on the brief was Ernest P. Rogers.

Joseph C. Jacobs, Assistant Attorney General of Florida, argued the cause for appellees. With him on the brief were Richard W. Ervin, Attorney General of Florida, and Sam Spector, Special Assistant Attorney General.

MR. JUSTICE CLARK delivered the opinion of the Court.

Florida, by statute,' requires appellant, a Georgia corporation, to be responsible for the collection of a use tax on certain mechanical writing instruments which appel

1 The pertinent provisions of this statute are:

“212.06 Same; collectible from dealers; dealers defined; dealers to collect from purchasers; legislative intent as to scope of tax.

"(1) The aforesaid tax at the rate of three per cent of the retail sales price, as of the moment of sale, or three per cent of the cost price, as of the moment of purchase, as the case may be, shall be Opinion of the Court.

362 U.S.

lant sells and ships from its place of business in Atlanta to residents of Florida for use and enjoyment there. Upon Scripto's failure to collect the tax, the appellee Comptroller levied a use tax liability of $5,150.66 against it. Appellant then brought this suit to test the validity of the imposition, contending that the requirement of Florida's statute places a burden on interstate commerce and violates the Due Process Clause of the Fourteenth Amendment to the Constitution. It claimed, in effect, that the nature of its operations in Florida does not form a sufficient nexus to subject it to the statute's exactions. Both the trial court and the Supreme Court of Florida held that appellant does have sufficient jurisdictional contacts in Florida and, therefore, must register as a dealer under the statute and collect and remit to the State the use tax imposed on its aforesaid sales. 105 So. 2d 775. We noted probable jurisdiction. 361 U. S. 806. We agree with the result reached by Florida's courts.

Appellant operates in Atlanta an advertising specialty division trading under the name of Adgif Company. Through it, appellant is engaged in the business of selling mechanical writing instruments which are adapted to advertising purposes by the placing of printed material thereon. In its Adgif operation, appellant does not

collectible from all dealers as herein defined on the sale at retail, the use, the consumption, the distribution and the storage for use or consumption in this state, of tangible personal property.

“(2) ... (g) 'Dealer' also means and includes every person who solicits business either by representatives or by the distribution of catalogs or other advertising matter and by reason thereof receives and accepts orders from consumers in the state, and such dealer shall collect the tax imposed by this chapter from the purchaser and no action either in law or in equity on a sale or transaction as provided by the terms of this chapter may be had in this state by any such dealer unless it be affirmatively shown that the provisions of this chapter have been fully complied with."

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