City of Alexandria v. Breard
Decision Date | 30 June 1950 |
Docket Number | No. 39898,39898 |
Citation | 217 La. 820,47 So.2d 553 |
Parties | CITY OF ALEXANDRIA v. BREARD. |
Court | Louisiana Supreme Court |
T. C. McLure, Jr., Alexandria, J. Harry Wagner, Jr., and E. Russell Shockley, both of Philadelphia, Pa., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., of counsel, for appellant.
Phelps, Dunbar, Marks & Claverie, New Orleans, and Whitman, Ransom, Coulson and Goetz, New York City, amici curiae.
Frank H. Peterman, City Atty., of Alexandria, for appellee.
Jack H. Breard, a resident of Dallas, Texas, and the regional representative of Keystone Readers Service, Inc., which engages in the house-to-house solicitation of magazine subscriptions on a nation-wide scale, has appealed his conviction (and the sentence of $25.00 fine or 30 days in the city jail of Alexandria, imposed thereunder), which arose out of his admitted violation of Ordinance No. 500 of the City of Alexandria, entitled
'An ordinance regulating solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise in the city of Alexandria, Louisiana: declaring it to be a nuisance for those engaging in such pursuits to go in or upon private residences without having been requested or invited to do so: providing penalties for the violation hereof; repealing all ordinances in conflict herewith.'
Appellant contends that said ordinance is unconstitutional in the following respects:
(1) It arbitrarily, unreasonably and unduly burdens, and in effect, curtails, and in effect, denies the fundamental right of such persons to engage in a lawful private business or occupation, thus violating the Due Process Clauses of the Constitution of Louisiana (Art. I, Section 2) and of the Fourteenth Amendment to the Constitution of the United States.
(2) As applied to appellant and other solicitors similarly situated, it imposes an undue and discriminatory burden upon interstate commerce, and, in effect, is tantamount to a prohibition of such commerce, in violation of Section 8, Art. I, Clause 3 of the Constitution of the United States.
(3) As applied to appellant and other solicitors similarly situated, it violates Art. 1, Section 3 of the Constitution of the State of Louisiana and Amendment I and Amendment XIV, Section 1 of the Constitution of the United States, in that it abridges the freedom of speech or of the press because it places an arbitrary, unreasonable and undue burden upon a well established method of distribution and circulation of lawful magazines and periodicals, and, in effect, is tantamount to a prohibition of the utilization of such method.
The identical ordinance was before this Court in the case of City of Alexandria v. Jones, 216 La. 923, 45 So.2d 79. There the defendant was engaged in soliciting orders for photographs, while here the defendant is engaged in soliciting orders for magazine subscriptions. We affirmed the judgment and conviction in the Jones case, and we see no reason to do otherwise in the present case, for the reasons hereinafter set forth.
The same appellant, Breard, attacked (unsuccessfully) the constitutionality of a similar ordinance of the City of Alexandria in the case of Breard v. City of Alexandria, D.C.W.D.La.1947, 69 F.Supp. 722. The earlier ordinance merely prohibited uninvited solicitation and declared it to be unlawful; the present ordinance declares it to be a nuisance and punishable as a misdemeanor. For all practical purposes, however, the two ordinances are identical.
A similar ordinance of the City of Shreveport was held constitutional and valid by this Court in City of Shreveport v. Cunningham, 1938, 190 La. 481, 182 So. 649.
We are therefore irresistibly drawn to the conclusion that the present suit is but another phase of the campaign being waged so grimly to have these 'Green River' ordinances invalidated and declared repugnant to the United States Constitution. Since appellant's field embraces solicitation of orders for printed matters (magazines) which are actually distributed by the United States mail, he has raised the additional question of the freedom of the press. But the real issue remains the same--the power of the local governing authority to regulate the conduct of businesses of a local nature, in the interest of the public good under the general delegation of police power from the State; the reasonableness of the regulation; and whether it is capable of impartial administration without regard to the discretion or judgment of the administering official, board.
The ordinance in question reads as follows:
'An ordinance regulating solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise in the city of Alexandria, Louisiana; declaring it to be a nuisance for those engaging in such pursuits to go in or upon private residences without having been requested or invited to do so; providing penalties for the violation hereof; repealing all ordinances in conflict herewith.
That the state and its subdivisions have such authority within certain constitutional limitations is a well-settled principle of constitutional law and needs no further comment. ...
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Breard v. City of Alexandria, La
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