Breard v. City of Alexandria, La

Citation71 S.Ct. 920,95 L.Ed. 1233,341 U.S. 622,35 A.L.R.2d 335
Decision Date04 June 1951
Docket NumberNo. 399,399
CourtUnited States Supreme Court

[Syllabus from pages 622-623 intentionally omitted] Mr. E. Russell Shockley, Philadelphia, Pa., for appellant.

Mr. Frank H. Peterman, Alexandria, La., for appellee.

Mr. Justice REED delivered the opinion of the Court.

The appellant here, Jack H. Breard, a regional representative of Keystone Readers Service, Inc., a Pennsylvania corporation, was arrested while going from door to door in the City of Alexandria, Louisiana, soliciting subscriptions for nationally known magazines. The arrest was solely on the ground that he had violated an ordinance because he had not obtained the prior consent of the owners of the residences solicited. Breard, a resident of Texas, was in charge of a crew of solicitors who go from house to house in the various cities and towns in the area under Breard's management and solicit subscriptions for nationally known magazines and periodicals, including among others the Saturday Evening Post, Ladies Home Journal, Country Gentleman, Holiday, Newsweek, American Home, Cosmopolitan, Esquire, Pic, Parents, Today's Woman and True. These solicitors spend only a few days in each city, depending upon its size. Keystone sends a card from its home office to the new subscribers acknowledging receipt of the subscription and thereafter the periodical is forwarded to the subscriber by the publisher in interstate commerce through the mails.

The ordinance under which the arrest was made, so far as is here pertinent, reads as follows:

'Section 1. Be it ordained by the council of the city of Alexandria, Louisiana, in legal session convened that the practice of going in and upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers, itinerant merchants or 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 disposing of and/or peddling or hawking the same is declared to be a nuisance and punishable as such nuisance as a misdemeanor.'

It, or one of similar import, has been on the statute books of Alexandria for many years. It is stipulated that:

'Such ordinance was enacted by theCity Council, among other reasons, because some householders complained to those in authority that in some instances, for one reason or another, solicitors were undesirable or discourteous, and some householders complained that, whether a solicitor was courteous or not, they did not desire any uninvited intrusion into the privacy of their home.'

The protective purposes of the ordinance were underscored by the Supreme Court of Louisiana in its opinion. 217 La. 820, 47 So.2d 553, at page 555.

At appellant's trial for violation of the ordinance, there was a motion to quash on the ground that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that it violates the Federal Commerce Clause, art. 1, § 8, cl. 3; and that it violates the guarantees of the First Amendment of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment to the Constitution of the United States. Appellant's motion to quash was overruled by the trial court and he was found guilty and sentenced to pay a $25 fine or serve 30 days in jail. The Supreme Court of Louisiana affirmed appellant's conviction and expressly rejected the federal constitutional objections. 217 La. 820, 47 So.2d 553. The case is here on appeal, 28 U.S.C. § 1257, Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869.

All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be per- mitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.

It is true that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles.1 When such visitors are barred from premises by notice or order, however, subsequent trespasses have been punished.2 Door-to-door canvassing has flourished increasingly in recent years with the ready market furnished by the rapid concentration of housing. The infrequent and still welcome solicitor to the rural home became to some a recurring nuisance in towns when the visits were multiplied.3 Unwanted knocks on the door by day or night are a nuisance, or worse, to peace and quiet. The local retail merchant, too, has not been unmindful of the effective competition furnished by house-to-house selling in many lines. As a matter of business fairness, it may be thought not really sporting to corner the quarry in his home and through his open door put pressure on the prospect to purchase. As the exigencies of trade are not ordinarily expected to have a higher rating constitutionally than the tranquillity of the fireside, responsible municipal officers have sought a way to curb the annoyances while preserving complete freedom for desirable visitors to the homes. The idea of barring classified salesmen from homes by means of notices posted by individual householders was rejected early as less practical than an ordinance regulating solicitors.4

The Town of Green River, Wyoming, undertook in 1931 to remedy by ordinance the irritating incidents of house-to-house canvassing for sales. The substance of that ordinance, so far as here material, is the same as that of Alexandria, Louisiana.5 The Green River ordinance was sustained by the Circuit Court of Appeals of the Tenth Circuit in 1933 against an attack by a nonresident corporation, a solicitor of orders, through a bill for an injunction to prohibit its enforcement, on the federal constitutional grounds of interference with interstate commerce, deprivation of property without due process of law, and denial of the equal protection of the laws. Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112. No review of that decision was sought. An employee of the Brush Company challenged the same ordinance again in the courts of Wyoming in 1936 on a prosecution by the town for the misdemeanor of violating its terms. On this attack certain purely state grounds were relied upon, which we need not notice, and the charges of violation of the Federal Constitution were repeated. The ordinance was held valid by the Supreme Court of Wyoming. Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456.6

Due Process.—On appeal to this Court, appellant urged particularly the unconstitutionality under the Fourteenth Amendment Due Process Clause of such unreasonable restraints as the Green River ordinance placed on 'the right to engage in one of the common occupations of life,' citing inter alia, New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S.Ct. 371, 374, 76 L.Ed. 747, and Adams v. Tanner, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336. He also relied upon the alleged prohibition of interstate commerce under the guise of a police regulation.7

Here this Court dismissed for want of a substantial federal question. Bunger v. Green River, 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854. For an answer to the argument that the ordinance denied due process because of its unreasonable restraint on the right to engage in a legitimate occupation, this Court cited three cases: Gunding v. Chicago, 177 U.S. 183, 20 S.Ct. 633, 44 L.Ed. 725;8 Western Turf Association v. Greenberg, 204 U.S. 359, 27 S.Ct. 384, 51 L.Ed. 520;9 and Williams v. Arkansas, 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673. 10

The opinions of this Court since this Green River case have not given any ground to argue that the police power of a state over soliciting has constitutional infirmities under the due process principle embodied in the concept of freedom to carry on an inoffensive trade or business. Decisions such as Liebmann and Tanner, supra, invalidating legislative action, are hardly in point here. The former required a certificate of convenience and necessity to manufacture ice, and the latter prohibited employment agencies from receiving remuneration for their services. The Green River ordinance can be characterized as prohibitory of appellant's legitimate business of obtaining subscriptions to periodicals only in the limited sense of forbidding solicitation of subscriptions by house-to-house canvass without invitation. All regulatory legislation is prohibitory in that sense. The usual methods of solici- tation—radio, periodicals, mail, local agencies—are open.11 Furthermore, neither case is in as strong a position today as it was when Bunger appealed. See Olsen v. Nebraska, 313 U.S. 236, 243, et seq., 61 S.Ct. 862, 863, 85 L.Ed. 1305, and Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535, 69 S.Ct. 251, 256, 93 L.Ed. 212.

The Constitution's protection of property rights does not make a state or a city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business.12 The question of a man's right to carry on with propriety a standard method of selling is presented here in its most appealing form—an assertion by a door-to-door solicitor that the Due Process Clause of the Fourteenth Amendment does not permit a state or its subdivisions to deprive a specialist in...

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