City of McAlester v. Grand Union Tea Co.

• Decision Date: 30 January 1940
• Docket Number: 28670.
• Citation: City of McAlester v. Grand Union Tea Co., 98 P.2d 924, 186 Okla. 487, 1940 OK 39 (Okla. 1940)
• Parties: CITY OF McALESTER et al. v. GRAND UNION TEA CO. et al.
• Court: Oklahoma Supreme Court

98 P.2d 924

186 Okla. 487, 1940 OK 39

CITY OF McALESTER et al. v. GRAND UNION TEA CO. et al.

No. 28670.

Supreme Court of Oklahoma

January 30, 1940

Syllabus by the Court.

1. A "public nuisance" is punishable by a city in the exercise of its police power, but a "private nuisance" is not so punishable.

2. The act of going in or upon private residences for the purpose of soliciting orders for sale of goods without consent of owner or occupant is not a "public nuisance" and may not be punished as a crime or misdemeanor under a city ordinance for the reason that cities of the state are not, by general police powers or specific grant of authority to determine what shall constitute a nuisance and abate same, empowered to declare that to be a public nuisance which is not so per se or as measured by common law or statute of the state.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Action by the Grand Union Tea Company and others against the City of McAlester and others to have declared invalid a municipal ordinance making the act of entering in or on private residences within the city, without invitation of the occupant, by solicitors and the like for purpose of soliciting orders for, or selling merchandise, a nuisance punishable as a misdemeanor. From an adverse judgment, the defendants appeal.

Judgment affirmed.

WELCH V. C.J., and HURST, J., dissenting.

W. J. Horton, W. S. Horton, and H. I. Aston, all of McAlester, for plaintiffs in error.

Eldon J. Dick, of Tulsa, and Busby, Harrell & Trice, of Ada, for defendants in error.

Charles B. Cochran and Fisher Ames, both of Oklahoma City, amici curiæ.

RILEY Justice.

Defendants in error obtained judgment below declaring invalid a municipal ordinance of the City of McAlester which provided that the act of entering in or upon private residences within the city, without invitation of the occupant, by solicitors and the like for the purpose of soliciting orders for, or selling merchandise, was a nuisance punishable as a misdemeanor.

This is the Green River ordinance, upheld in the State of origin, Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456, condemned in federal District Court, Fuller Brush Co. v. Town of Green River, 60 F.2d 613, resurrected by reversal in Federal Circuit Court of Appeals, 10 Cir., 65 F.2d 112, 88 A.L.R. 177, overthrown in White v. Town of Culpeper, 172 Va. 630, 1 S.E.2d 269, Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176, Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417, City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783, Real Silk Hosiery Mills v. City of Richmond, D.C.Cal., 298 F. 126.

The decisive issue now presented is whether the ordinance as enacted was in excess of authority delegated from the State to the City: "A municipal corporation in this state has only such powers as conferred upon it by the Legislature. '* * * grants of such powers are strictly construed against the corporations * * *."' Cain's Coffee Co. v. City of Muskogee, 171 Okl. 635, 44 P.2d 50, 53; Ex parte Holmes, 162 Okl. 30, 18 P.2d 1053.

Section 6380, O.S.1931, 11 Okl.St.Ann. § 642, invests general authority in cities to enact ordinances, not repugnant to laws of the United States and the laws of this State, for good government of the city, the preservation of the peace, trade and commerce, and health of the inhabitants of the city.

Conformable to the view of the Maryland Court regarding the Bel Air ordinance "We fail to see how the solicitation or conduct of a legitimate mercantile business or trade can be resolved into a health, safety, or general welfare regulation by suppression by a town ordinance". [172 Md. 536, 192 A. 418.] Nor does the ordinance have for its ostensible purpose preservation of trade or commerce.

There is no relation between the ordinance, good government of the city, or the preservation of peace and order. Spann v. Gaither, 152 Md. 1, 136 A. 41, 50 A.L.R. 620.

The ordinance reflects by its text that the transaction which it seeks to restrain is not a nuisance per se. The act sought to be prohibited is only one without invitation of the householder. If the act were a true nuisance, permission or invitation of the householder, would not make it lawful. Prior v. White, supra; Fuller Brush Co. v. Town of Green River, D.C., 60 F.2d 613, cited, supra.

By Art. 5, Ch. 33, S.L.1935, 50 Okl.St.Ann. §§ 16, 17 cities and towns of this state are granted right to determine what is and what shall constitute a nuisance within the corporate limits, and likewise shall have such powers outside the corporate limits for protection of public water supply, parks, etc. It is noteworthy that with this grant of power procedure for abatement is provided by action in the District Court.

The State law defines "nuisance" by Section 11489, O.S.1931, 50 Okl.St.Ann.§ 1:

"A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

First. Annoys, injures or endangers the comfort, repose, health, or safety of others * * *."

Section 11490, O.S.1931, 50 Okl.St.Ann. § 2, defines a public nuisance as being one which offends at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of annoyance or damage inflicted upon the individuals may be unequal.

Section 11491 O.S.1931, 5 Okl.St.Ann. § 3, provides: "Every nuisance not included in the definition of the last section is private."

Section 11496, idem, 50 Okl.St.Ann. § 8:

"The remedies against a public nuisance are:

1, Indictment or information, or

2, A civil action, or,

3, Abatement." Section 11501, idem, 50 Okl.St.Ann. § 13, provides:

"The remedies against a private nuisance are:

1, A civil action; or,

2, Abatement."

Section 11502, idem, 50 Okl.St.Ann. § 14: "A person injured by a private nuisance may abate it by removing, or, if necessary, destroying the thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury."

Assuming that uninvited residential solicitation of business constitutes a nuisance, it can only be so by reason of the first subdivision of Section 11489, supra, in that the Act sought to be prohibited annoys the householder. This may well be doubted for we held in Kenyon v. Edmundson, 80 Okl. 3, 193 P. 739, 741: "A mere trifling annoyance, inconvenience, or discomfort to one with too fastidious or refined tastes will not constitute a nuisance." And the act of calling at private residences upon any legitimate mission has generally been countenanced if not impliedly invited.

The grant of power to a municipality to declare what shall constitute a nuisance and to remove same, "* * * does not empower the municipality to declare a thing a nuisance which is clearly not one * * *." Duncan Electric & Ice Co. v. City of Duncan, 64 Okl. 211, 166 P. 1048. But location, conditions and surroundings may justify such a declaration. Idem.

It is seen that the statute defines a nuisance, a...