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BROWN v. CITY OF ALBANY.
BARTLETT v. CITY OF ALBANY.
40386.
40387.
Distributing handbills, etc. Dougherty Superior Court. Before Judge Lilly from Southern Circuit.
FRANKUM, Judge.
Where the evidence showed merely that the defendants were distributing literature to influence employees of a distillery to vote in favor of a certain labor union in a pending representation election, their conviction of violating a city ordinance prohibiting the distribution of commercial or business advertising matter was unauthorized.
The defendants were convicted in the Recorder's Court of the City of Albany of violating Chapter 14, Section 9, of the Code of the City of Albany which reads as follows: "Distributing handbills, circulars and so forth. It shall be unlawful for any person to throw, cast or distribute, or cause or permit to be thrown, cast or distributed, any handbill, circular, card, booklet, placard or other advertising matter what soever in or upon any street or public place, or in a front yard or courtyard, or on any stoop or in the vestibule or any hall of any building or any letter box therein within the corporate limits of the city; provided, that nothing contained in this section shall be deemed to prohibit or otherwise regulate the delivery of any such matter by the United States Postal Service, or prohibit the distribution of sample copies of newspapers regularly sold by the copy or by annual subscription; provided further, that this section shall not be deemed to prevent the lawful distribution of anything other than commercial or business advertising matter. Any person violating any of the provisions of this section shall be punished as provided in Section 4, of Chapter 1. (Ordinance No. 1379.)" Their petitions for certiorari, assigning error on the judgments finding them guilty on the ground that they were contrary to the law and the evidence, were sanctioned and, after coming on to be heard, were denied and dismissed, and they assign error on those judgments.
The ordinance which the defendants are charged with having violated plainly states that it is not intended "to prevent the lawful distribution of anything other than commercial or business advertising matter." "Commerce" is "business intercourse; the exchange or buying or selling [of] commodities." As used in the ordinance "business" relates to mercantile transactions and to the buying and selling of commodities. People ex rel. Greenberg v. Healy, 74 NYS2d 102, 104; cf. Jones v. Johnson, 80 Ga. App. 340, 342 (55 SE2d 904). The matter which the defendants were shown to have been distributing was not commercial or business advertising matter as used in the ordinance, and the evidence did not, therefore, authorize the conviction of the defendants. The petitions for certiorari and the exhibits thereto showed that the convictions were unauthorized, and the judge of the superior court erred in denying and dismissing them.
Judgments reversed. Nichols, P. J., and Jordan, J., concur.
H. G. Rawls, contra.
Adair, Goldthwaite & Stanford, J. R. Goldthwaite, for plaintiffs in error.
DECIDED NOVEMBER 14, 1963.
Friday May 22 22:04 EDT


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