Rowe v. City of Pocatello, 7632

• Decision Date: 10 May 1950
• Docket Number: No. 7632,7632
• Citation: 70 Idaho 343,218 P.2d 695
• Parties: ROWE et al. v. CITY OF POCATELLO et al.
• Court: Idaho Supreme Court

Page 695

218 P.2d 695

70 Idaho 343

ROWE et al. v. CITY OF POCATELLO et al.

No. 7632.

Supreme Court of Idaho.

May 10, 1950.

Louis F. Racine, Jr., of Pocatello, for appellants.

Zener & Peterson, of Pocatello, for respondents.

TAYLOR, Justice.

The plaintiff and appellant Rowe, of Providence, R. I., is engaged in business as 'Rowe Craft Studio.' The other named plaintiffs are his agents. In pursuit of his business the plaintiff (without request or invitation so to do) goes from door to door of the residences of the city soliciting orders for enlargements of photographs. When an order is taken, the customer furnishes a small photograph which is forwarded by the plaintiff to Kansas City, Missouri, where the enlargement is made. A print of the enlargement is returned to the order-taker, who submits it to the customer and obtains further directions as to the coloring and finishing of the portrait. The print is then returned to Kansas City where the order is completed, after which the finished product is returned to the order-taker and by him delivered to the customer.

The city regards plaintiff's method of business as a violation of its ordinance number 4-217, which is as follows:

'Peddling: The practice of going in and upon private residences in the city of Pocatello, Bannock County, State of Idaho, by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and or for the purpose of disposing of and or peddling or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.'

After trial, at which the plaintiff Rowe testified as to his manner of conducting business, substantially as above set out, the trial court entered judgment for the defendants.

The court concluded that plaintiff's method of business is a violation of the ordinance, that it constitutes a nuisance, and is punishable as a misdemeanor; that the ordinance does not violate either the state constitution or the constitution of the United States; and does not impose an undue burden on interstate commerce. These conclusions the appellant assigns as error.

Appellant's first contention is that the method or manner of conducting business described in the ordinance is not a nuisance per se, and that it is therefore beyond the police power of the city to make it a nuisance by ordinance.

The power of a city to declare a nuisance is not limited to that which is a nuisance per se. It may also declare that a nuisance which is such in fact or per accidens. City of Twin Falls v. Harlan, 27 Idaho 769, 151 P. 1191; Beem v. Davis, 31 Idaho 730, 175 P. 959; Porter v. City of Lewiston, 41 Idaho 324, 238 P. 1014; Continental Oil Co. v. City of Twin Falls, 49 Idaho 89, 286 P. 353; State v. Finney, 65 Idaho 630, 150 P.2d 130. A nuisance per se is that which is a nuisance at all times and under all circumstances. A nuisance in fact is that which is not inherently a nuisance, or one per se, but which may become such by reason of surrounding circumstances, or the manner in which conducted. 39 Am.Jur. 289, sec. 11; 46 C.J. 648-9; State v. Atwood, 54 Or. 526, 102 P. 295, 104 P. 195, 21 Ann.Cas. 516. A nuisance per se would be subject to abatement under the statute or common law in the absence of any ordinance. Our statutory definitions of nuisances are quite all-inclusive. Section 52-101, I.C. in part reads: 'Anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, * * *'

The definition in the penal code (sec. 18-5901, I.C.) is similar. The legislature has empowered cities and villages to prevent and remove nuisances, secs. 50-135, 50-313, and 50-707, I.C., and cities of the first class (applicable to Pocatello) 'To declare what shall be deemed nuisances;' 50-135, I.C. In addition, under general legislative powers, municipalities are authorized to: 'Make all such ordinances, by-laws, rules, regulations, resolutions not inconsistent with the laws of the state, as may be expedient, in addition to the special powers in this title granted, maintaining the peace, good government and welfare of the corporation and its trade, commerce, manufacture, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, * * *' Sec. 50-1109, I.C.

These are broad powers. But in this state acts of the legislature governing municipal police regulations are to be looked to as limitations upon, rather than as grants of power to the municipalities.

'Any county or incorporated city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws.' Constitution Art. 12, sec. 2. This is a direct grant of police power from the people to the municipalities of the state, subject only to the limitation that such regulations shall not conflict with the general laws. Comprehended in the term, 'general laws,' are other provisions of the constitution, acts of the state legislature, and, of course, the constitution and laws of the United States. Under this constitutional provision the cities of this state are in a notably different position than are cities in jurisdictions where their police power is strictly limited to that found in charter or legislative grant. In the following cases cited by appellant the cities involved were so restricted. Jewel Tea Co. v. City of Geneva, 137 Neb. 768, 291 N.W. 664; De Berry v. City of La Grange, 62 Ga.App. 74, 8 S.E.2d 146; City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783; Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417; White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269; City of Osceola v. Blair, 231 Iowa 770, 2 N.W.2d 83; Ex Parte Faulkner, 143 Tex.Cr.R. 272, 158 S.W.2d 525; Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176. In N. J. Good humor v. Board of Com're, 124 N.J.L. 162, 11 A.2d 113, the municipality was limited to such powers as have been expressly granted, or necessarily implied, or essential to its objects and purposes. In City of McAlester v. Grand Union Tea Co., 186 Okl. 487, 98 P.2d 924, the court observed that the city has only such powers as are conferred by the legislature, and that the grants are to be strictly construed against the city. A similar rule was applied in this state as to powers not granted directly by the constitution. Bradbury v. City of Idaho Falls, 32 Idaho 28, 177 P. 388.

The Supreme Court has said that the police power is 'the least limitable of the powers of government.' District of Columbia v. Brooke, 214 U.S. 138, 149, 29 S.Ct. 560, 563, 53 L.Ed. 941, 945. Judge Cooley's definition has been widely accepted.

"The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of the rights of others." Sifers v. Johnson, 7 Idaho 798, 65 P. 709, 54 L.R.A. 785, 97 Am.St.Rep. 271, 11 Am.Jur. 973.

From earliest times, both in England and America, hawking and peddling have been considered a proper subject of police regulation and prohibition. Emert v. State of Missouri, 156 U.S. 296, 15 S.Ct. 367, 39 L.Ed. 430.

'The right of state legislature or municipalities acting under state authority to regulate trades and callings in the exercise of the police power is too well settled to require any extended discussion.' Schmidinger v. City of Chicago, 226 U.S. 578, 33 S.Ct. 182, 184, 57 L.Ed. 364 at page 367, Ann.Cas.1914B, 284. Cf. Continental Oil Co. v. City of Twin Falls, supra.

The subject matter of the ordinance, being within the police power, and properly belonging to the legislative department of government, the courts will not interfere with the discretion, nor inquire into the motives or wisdom, of the legislators. However, it is incumbent upon the judicial department to examine the ordinance and to determine whether or not the legislators have overreached their prerogative and impinged the fundamental law. If the act is found to be unreasonable, capricious, arbitrary, or discriminatory, it will be held void, as an attempt to deny rights guaranteed by the constitutions, both state and national. But if the act is not clearly unreasonable, capricious, arbitrary or discriminatory, it will be upheld, as a proper exercise of the police power. Porter v. City of Lewiston, supra; Ex Parte Hartmann, 25 Cal.App.2d 55, 76 P.2d 709; Ex Parte Mares, 75 Cal.App.2d 798, 171 P.2d 762; People v. Bohnke, 287 N.Y. 154, 38 N.E.2d 478. In City of Idaho Falls v. Grimmett, 63 Idaho 90, 117 P.2d 461, 463, speaking of legislative discretion, this court said: 'Every presumption is to be indulged in favor of the exercise of that discretion, unless arbitrary action is clearly disclosed.' and in State v. Finney, supra [65 Idaho 630, 150 P.2d 132]: 'The due process and equal protection provisions of these Constitutions are not intended to interfere with the power of the State in the exercise of the police powers to prescribe regulations for the protection and promotion of the welfare of the people. It is only subject to the qualification that the measure adopted for the purpose of regulating the exercise of the rights of liberty and the use and enjoyment of property must be designed to effect some public object which the government may legally...