Breard v. City of Alexandria

• Citation: 69 F. Supp. 722
• Decision Date: 12 February 1947
• Docket Number: Civil Action No. 2032.
• Parties: BREARD v. CITY OF ALEXANDRIA et al.
• Court: U.S. District Court — Western District of Louisiana

69 F. Supp. 722

BREARD v. CITY OF ALEXANDRIA et al.

Civil Action No. 2032.

District Court, W. D. Louisiana, Alexandria-Division.

February 12, 1947.

T. C. McLure, Jr., of Alexandria, La., and J. Frank Wilson, of Washington, D. C., for plaintiff.

Frank H. Peterman, of Alexandria, La., for defendants.

PORTERIE, District Judge.

In the year 1930 this court enjoined the city of Alexandria from enforcing an ordinance "providing for the issuance of permits to persons engaged in soliciting orders for, or in the sale of, * * * any * * * magazine or other periodical, or any article of merchandise * * * made by canvassing from house to house," etc. Pictorial Review Co. v. City of Alexandria et al., D.C., 46 F.2d 337, 339. The issuance of the permit was very much a matter of discretion of the mayor. The opinion declared the ordinance invalid because it imposed "an unwarranted burden upon an otherwise harmless and legitimate traffic in interstate commerce."

This ordinance gave authority to the mayor to require bond with good and solvent security, in the sum of not exceeding $100 "for the use and benefit of any person or persons who may be defrauded, injured or damaged by the failure of the person having such permit to deliver the goods which he has taken orders for, in accordance with his agreement and understanding of his customer." There was a section providing for the revocation of the permit once granted, though bond having been furnished, and for the refusal of the reissuance of permit, and a section classifying the violation of the ordinance as a misdemeanor and providing for a penalty of not more than twenty-five dollars, or in default, jail, or both.

The city of Alexandria still impressed with the necessity of protecting its citizens in their property, morals, health and safety, passed a new ordinance — not having appealed the decision of the lower court in the first case — the main part of which reads as follows:

"Section 1. Be it ordained by the council of the City of Alexandria, Louisiana, in regular session convened, that the practice of going upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers or 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 any/or peddling or hawking the same, is hereby prohibited and declared to be unlawful." (Italics ours.)

This suit seeks to have this ordinance declared unconstitutional, null and void, and to have the officers of the city enjoined from its enforcement.

The new law provides for no permit, no bond, no discretion being vested in any one and straight-away prohibits and declares it to be unlawful for solicitors, etc., to go upon private premises, unless they have "been requested or invited so to do by the owner."

There is no burden on interstate commerce here, because there is no license required, there is no permit necessary, there is no authority and power left in the discretion of anyone. All solicitors from out of state are treated alike, there is no prohibition of interstate commerce; all the solicitor has to do is to get on a telephone and get an invitation to call at the home.

The prohibition of the promiscuous entry into private residences is the proper exercise by the city of Alexandria of the police power vested in it by the state of Louisiana.

Doubtless the draft of the present ordinance was taken from the case of the City of Shreveport v. Cunningham, 190 La. 481, 182 So. 649, 651. The following reasoning from this case applies to the instant case:

"Ordinance No. 50 of 1937 of the City of Shreveport does not pretend `to suppress' peddlers altogether. It does not prohibit a peddler from hawking his goods in the street, or upon a sidewalk in front of private residences. This ordinance only declares to be a nuisance `the practice of going in and upon private residences in the City of Shreveport, Louisiana, by solicitors, peddlers, hawkers or 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.'"

There is want of the declaration by the city of Alexandria that the instant act is a nuisance, as was declared by the city of Shreveport in the above case, but the mere giving life to the ordinance by the legislative branch of the city, and the insertion of a penal section as for the commission of a misdemeanor is a declaration, to our satisfaction, of a nuisance.

Therefore, the ordinance before us for consideration is not in violation of State law and our supreme court has indicated that it is not a violation of the Federal law.

We shall now investigate further as to whether the ordinance at hand is in violation of the Federal law.

In the case of Real Silk Hosiery Mills, Inc., v. City of Portland et al., 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982, a case very much relied upon by plaintiff, the ordinance imposed a license tax on solicitors taking orders for hosiery to be shipped to buyers by a manufacturer in another State. This was held to be a burden on interstate commerce and void as violating Constitution Article 1, Section 8, though express purpose was to prevent possible fraud. Our instant case is differentiated because there is no license asked here—consequently no burden on interstate commerce.

The instant case is very similar to the case of Ex parte Hartmann, 25 Cal.App.2d 55, 76 P.2d 709, where the ordinance of the city of Sacramento, of like character as the instant one, was validated as being the proper exercise of police power, because there was no unlawful regulation of commerce between the states, because the law applied uniformly to all individuals of the particular designated class and it was so whether they were within or without the city of Sacramento, or within or without the state of California.

On the necessity of the declaration of the Act being a nuisance, we quote from the syllabi of the case of McCormick v. City of Montrose, 105 Colo. 493, 99 P.2d 969 (the Supreme Court of the State of Colorado):

"Under statute defining powers of cities and towns, city had power to pass ordinance prohibiting solicitation in private residences without invitation, if such conduct constituted a nuisance in fact and was public in character. * * * If city has power to penalize conduct declared by ordinance to be a nuisance, it is immaterial whether such conduct was properly given the name of nuisance.

"An ordinance prohibiting solicitation in private residences without request or invitation had the effect of * * * making the solicitor a trespasser, of abolishing the presumption of implied consent from previous custom for solicitors to enter upon premises uninvited, and of creating a presumption of lack of consent.

"Presumably when a legislative act is passed, it represents the sentiment and expresses the judgment of a majority of the citizens within the legislating governmental division or subdivision concerning the proper policy to be pursued with reference to the subject of the legislation. * * * Motives actuating legislators, wisdom or unwisdom of a law, and its incidental effects, are not matters with which the judicial branch of the government may properly concern itself, if there is power to enact the law.

"A city ordinance prohibiting the solicitation of retail business in private residences without the request or invitation of the householders does not violate the due process clauses of state or federal constitutions, and does not constitute regulation of or interference with `interstate commerce' within terms of Federal Constitution." (Italics ours.)

Again coming to the Federal courts:

Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112, 114, 88 A.L. R. 177 (no writs sought), has the following language, which we adopt as being applicable here:

"It has been uniformly held that while legislative authority may not arbitrarily interfere with private affairs by imposing unusual and unnecessary restrictions upon a lawful business, yet a considerable latitude of discretion must be accorded to the law making power, and if the regulation operates uniformly upon all persons similarly situated and it is not shown that it is clearly unreasonable and arbitrary, it cannot be judicially declared to be in contravention of constitutional right. Kidd v. Pearson, 128 U.S. 1, 9 S.Ct. 6, 32 L.Ed. 346; Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Reinman v. City of Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900; Packer Corporation v. State of Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643, 79 A.L.R. 546. In Schmidinger v. City of Chicago, 226 U.S. 578, 33 S.Ct. 182, 184, 57 L.Ed. 364, Ann.Cas.1914B, 284, the court said:

"`This court has frequently affirmed that the local authorities intrusted with the regulation of such matters, and not the courts, are primarily the judges of the necessities of local situations calling for such legislation, and the courts may only interfere with laws or ordinances passed in pursuance of the police power where they are so arbitrary as to be palpably and unmistakably in...