City of Kosciusko v. No Equal Textile Co.

• Decision Date: 11 May 1925
• Docket Number: 24953
• Citation: 104 So. 102,139 Miss. 220
• Court: Mississippi Supreme Court
• Parties: CITY OF KOSCIUSKO v. NO EQUAL TEXTILE CO. [*]

104 So. 102

139 Miss. 220

CITY OF KOSCIUSKO v. NO EQUAL TEXTILE CO. ^[*]

No. 24953

Supreme Court of Mississippi

May 11, 1925

Division B

1 LICENSES. Ordinance requiring house to house salesmen to give bond for final delivery of goods or performance of services not within police power.

Section 3329, Code of 1906 (section 5826, Hemingway's Code) conferring power upon municipalities "to make all needful police regulations necessary for the preservation of good order and the peace of the municipality," does not confer on the municipality power to require by ordinance a solicitor going from house to house or place to place in the municipality selling or taking orders for goods for future delivery, or services to be performed in future, or for the making, manufacturing, or repairing of any article for future delivery, and requiring such person to give a bond conditioned upon the making of final delivery of the goods ordered or the services to be performed in accordance with the contract. The section of the Code referred to is limited to preserving the peace of the municipality to prevent the exercise of unlawful violence and to prevent riot, unlawful assembly, and other acts disturbing the tranquillity and peace of the municipality.

2 LICENSES. City ordinance imposing license tax on house to house solicitors invalid in absence of state tax thereon.

The provision of the ordinance, set out in the opinion, imposing certain license tax upon such solicitors referred to therein, cannot be justified under the taxing power of the municipality conferred by section 3367 of the Code of 1906 (section 5864, Hemingway's Code), because the state has not levied a tax of the kind sought to be imposed, and the power of the municipality to tax occupations and callings is limited to those taxed by the state and is limited to fifty per cent. of the state tax so imposed.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Attala county, HON. T. P. GUYTON, Chancellor.

Suit by No Equal Textile Company against the City of Kosciusko. From order overruling demurrer to complaint, defendant appeals. Affirmed, and remanded.

Judgment affirmed and remanded.

Watkins, Watkins & Eager and E. O. Sykes, for appellant.

I.

This ordinance was enacted primarily as a police regulation for the protection of the inhabitants of the city against fraud and impositions. Section 5826, Hemingway's Code; Wasson v. City of Greenville, 123 Miss. 642; Mills v. City of Portland, 297 F. 897, 28 Cyc. 721; Robbins v. Taxing Dist., 120 U.S. 489, 30 L.Ed. 694; Gundling v. City of Chicago, 177 U.S. 183, 44 L.Ed. 725; Savage v. Jones, 225 U.S. 501, 56 L.Ed. 1183; Plumley v. Commonwealth of Mass., 155 U.S. 461, 39 L.Ed. 223; Sligh v. Kirkwood, 237 U.S. 52; High Grade Provision Co. v. Sherman, U.S. , decided Jan. 5, 1925; Barbier v. Connolly, 113 U.S. 27, 28 L.Ed. 923; Hall v. Geiger-Jones, 242 U.S. 539, 61 L.Ed. 480; Mill Creek Co. v. Public Service Commission, 7 A. L. R. 1090.

II.

The provisions of this ordinance are separable. Those pertaining to the police power, are separate and distinct from the license tax therein imposed. The court may therefore hold that part constitutional which comes under the police power, and strike down that part providing for a license tax if it be unconstitutional. Section 6, of ordinance; Wasson v. City of Greenville, supra.; Berea College v. Commonwealth, 123 Ky. 209, 124 A. S. R. 344; Berea College v. Commonwealth, 211 U.S. 45, 53 L.Ed. 81.

III.

An ordinance or law passed by a municipality or by a state under its police power is not violative of the commerce clause of the Federal Constitution, though it may indirectly affect Interstate Commerce. Mills v. City of Portland, supra; Robbins v. Taxing Dist., etc., supra; Plumley v. Mass, supra; Savage v. Jones, supra; Sligh v. Kirkwood, supra; High Grade Prov. Co. v. Sherman, supra; Austin v. Tenn., 179 U.S. 343, 45 L.Ed. 224; Barbier v. Connolly, supra.

IV.

Before the court will hold this ordinance unconstitutional it must be satisfied of this fact beyond a reasonable doubt. Hinds County v. Johnson, 133 Miss. 605.

V.

Since appellee made no effort to comply with any of the provisions of the ordinance, then the demurrer should be sustained if any of its provisions are valid. It was the duty of the solicitors of the appellee to comply with and obey the valid parts of the ordinance. Neither they nor the appellee, in the absence of such effort, have any standing in a court of equity.

VI.

The contract of sale was completed within the state of Mississippi and the ordinance is not a burden on Interstate Commerce. Authorities, supra; Oil Co. v. State, 121 Miss. 615; Railroad v. Knight, 129 U.S. 21, 48 L.Ed. 325.

VII.

Injunction will not lie to prevent criminal prosecution under this ordinance. Authorities cited in brief of Mr. Leonard. Packard v. Banton, 246 U.S. 140; In re Sawyer, 124 U.S. 200; Mfg. Co. v. Los Angeles, 180 U.S. 207.

H. T. Leonard, also for appellant.

First consider the police power of municipalities as delegated by the state laws. Article 3, section 6 of the state Constitution; Hemingway's Code, sections 5812, 5913, 5826, 5837, 5845, 5864, 5865. In the past, many of the states of the Union have attempted to regulate and levy a tax upon the business of traveling salesmen commonly designated as drummers, but the supreme court of the United States has each time intervened and declared such legislation as contravening the Federal Constitution and the commerce clauses thereof. Most notable among the decisions are Robbins v. Shelby County Taxing District, 120 U.S. 501, and Asher v. Texas, 128 U.S. 129.

Within the past few years, owing to the vast expansion of business and the practice of great numbers of persons going about from place to place soliciting orders for goods, or for the sale and delivery of goods, wares and merchandise or the performance of services to be rendered, many frauds have been perpetrated upon the innocent and unsuspecting public by persons representing themselves as authorized agents or representatives for various enterprises. This condition of affairs became so general and so notorious that it became a common ground for complaint, and the people of the various communities of the country being so constantly victimized by impostors and dishonest agents, it became necessary to impose regulations and requirements upon persons engaging in such line of work. These ideas ultimately crystallized into concrete legislation and finally evolved what is known as the "Portland Ordinance." The Portland Ordinance as to its requirements, conditions and regulations contains exactly the same features as the ordinance in question, a reported description of the same being contained in 297 F. Rep. 897.

The power and authority of municipalities in this state to enact ordinances and regulations for the welfare, safety and health of its citizens has repeatedly been challenged as to their reasonableness, as being arbitrary and discriminatory but this court has uniformly held such ordinances to be valid exercise of police power where it was manifestly apparent that the enactment had for its object the prevention of some offense or evil, or the preservation of the public health, safety, morals or general welfare, and where there was some clear, real and substantial connection between the assumed purpose of the enactment and the actual provisions thereof.

It is apparent from a reading of the said Ordinance No. 62 of the city of Kosciusko, that each of the requirements imposed on applicants was enacted to meet some real, substantial and pressing problem "as a matter of public protection." It is only a regulatory provision designed in its work of supervising and promoting the welfare of its people. Hawkins v. Hoye, 108 Miss. 282, 66 So. 741.

The state itself has recognized the validity and necessity of such regulations in a number of trades, callings and occupations. Such requirements are imposed by the so-called "Blue Sky Law" contained in section 3, chapter 97, Laws of 1916 (Hemingway's Code, sec. 4129). Also the so-called "Taxicab Permit Law" as contained in chapter 217, Laws of 1922.

In Mullane v. Vicksburg, 106 Miss. 199, 63 So. 412, this court held that municipalities have the power and right to adopt reasonable regulations to protect the property and health of the community. Wasson v. City of Greenville, 123 Miss. 642, 86 So. 450, held within the police power of municipalities to require a license for operating motor vehicles. See also Standard Chemical Co. v. Troy (Ala.), 77 So. 386; Dowdwell v. Beasley (Ala.) 82 So. 40; Sampson v. City of Sheridan, 25 Wyo. 347, 170 P. 1, 1 A. L. R. 959; People v. Beakes Dairy, 222 N.Y. 416, 119 N.E. 115, 3 A. L. R. 1265; Coffman v. Ousterhous, 40 N.D. 390, 168 N.W. 826, 18 A. L. R. 226; 8 Cyc. of Law 876.

So much can be said about the police powers of the states and their political subdivisions that no hard and fast rule can be announced, and after all each particular case must stand or fall upon its own merits. A careful consideration of the ordinance in question will, we submit, convince the court that the ends sought to be accomplished sustain a close connection to legislation enacted by the ordinance; that by the imposition of such conditions and requirements as are provided for therein, the safety and general welfare of the citizens of this community will be protected, and that such legislation should, and will prevent this species of fraud before it becomes notorious or widespread with resulting harm and injury to the community.

Jas. T. Crawley, for appellee.

The question is whether or not the Ordinance is an infringement of the Constitution of the state of Mississippi, or of the Laws of Mississippi. It is...