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

Page 553

47 So.2d 553

217 La. 820

CITY OF ALEXANDRIA v. BREARD.

No. 39898.

Supreme Court of Louisiana.

June 30, 1950.

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.

MOISE, Justice.

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:

'Penal Ordinance No. 500

'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.

'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.

'Section 2. Be it further ordained, etc., that any person violating the provisions of this ordinance shall upon conviction thereof be fined not more than $100.00 or imprisoned not more than 30 days or both fined and imprisoned in the discretion of the Court.

'Section 3. Be it further ordained, etc., that the provisions of this ordinance shall not apply to the sale, or soliciting of orders for the sale, of milk, dairy products, vegetables, poultry, eggs and other farm and garden produce so far as the sale of the commodities named herein is now authorized by law.

'Section 4. Be it further ordained, etc., that it being deemed by the Council of the City of Alexandria, Louisiana, that an emergency exists, this ordinance shall go into effect immediately upon its passage.

'Section 5. Be it further ordained etc., that all ordinances or parts of ordinances in conflict herewith are hereby repealed.'

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. 'In the exercise of its police power and in the interest and for the protection, of the public, a state may, without denial of the equal protection of the laws, reasonably regulate a business affected with a public interest, or a useful trade, occupation, or profession which may prove injurious to the public. * * * Furthermore, within proper limitations, the legislature may, without denial of equal protection of the laws, classify businesses and occupations for purposes of regulation, provide different rules for different classes, limit a regulation to a particular kind of business, extend to some persons privileges denied to others, or impose restrictions on some but not on others, where the classification or discrimination is based on real differences in the subject matter and is reasonable, and the legislation affects alike all persons pursuing the same business under the same conditions. * * * Any classification or discrimination must not be arbitrary or unreasonable; and the legislation must not be discriminatory in the...