City of Mt. Sterling v. Donaldson Baking Co.

• Decision Date: 17 October 1941
• Citation: 287 Ky. 781,155 S.W.2d 237
• Parties: CITY OF MT. STERLING et al. v. DONALDSON BAKING CO.
• Court: Kentucky Court of Appeals

155 S.W.2d 237

287 Ky. 781

CITY OF MT. STERLING et al. v. DONALDSON BAKING CO.

Court of Appeals of Kentucky

October 17, 1941

Appeal from Circuit Court, Montgomery County; W. B. White, Judge.

Action by the Donaldson Baking Company against the City of Mt Sterling and others, to enjoin the defendant city from enforcing two ordinances against plaintiff or its employees. From a judgment for plaintiff, the defendants appeal.

Affirmed.

Thomas D. Grubbs and Robert H. Winn, both of Mount Sterling, for appellants.

Howard C. Hadden and Lewis A. White, both of Mount Sterling, for appellee.

SIMS Commissioner.

The Donaldson Baking Company, a Kentucky corporation, was threatened with prosecution by the City of Mount Sterling for the violation of an ordinance of that city forbidding uninvited solicitors from going to private residences for the purpose of selling merchandise, which ordinance denounced the offense to be a nuisance punishable by a fine; also, for the violation of a second ordinance in not paying a license imposed upon peddlers. The company brought this action to enjoin the city from enforcing these two ordinances against it or its employees, alleging the first ordinance was invalid, and as it was not a peddler it did not come within the terms of the second ordinance. The city's general demurrer was overruled and it was permanently enjoined from enforcing the two ordinances against the company. The chancellor gave his reasons for overruling the demurrer in a full and well-considered opinion.

The ordinances read:

"Section 71. The practice of being in and upon the private residences in the City of Mt. Sterling, Kentucky, by solicitors, peddlers, hawkers, 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 same, is hereby declared to be a nuisance, and as such punishable as a misdemeanor. Any person violating any provisions of this ordinance shall be fined a sum not less than five nor more than twenty dollars for each offense."

"Section 124. The tax on licenses for doing business in the City of Mt. Sterling shall be as follows:

"Article 21. On each peddler or itinerant retailer of wares or merchandise of any description, per year $300, same per day $25. Note. No person shall be deemed a peddler under this article for selling agricultural implements, sewing machines, portable mills, books, pamphlets, papers, meat stoneware, or farm or garden products, maps, charts, stationery, castings of plaster of paris, nor merchants or their agents selling by sample. Subject to the provisions contained in Sec. 71."

The petition as amended and substituted alleged that the Donaldson Baking Company is a substantial Kentucky corporation with a capital stock of some half million dollars with its principal office and bakery located in Louisville and a distributing branch in Lexington; that it operates sales trucks out of the Lexington branch daily on regular routes in some nine or ten named cities in central Kentucky, which routes are established by one of its representatives calling at the residences of prospective customers and obtaining the signature of housekeepers on a form presented by him inviting the company to have its salesmen stop regularly. As soon as sufficient invitations are thus secured the company establishes routes upon which its salesmen and trucks travel on a daily schedule to display goods, make sales, deliveries and collections. The salesmen and trucks visit only the residences from which the company's representatives have obtained an invitation for them to so do. As we recall, Mt. Sterling has some 4,500 inhabitants, of whom 254 are customers of the company.

This is a case of first impression in this jurisdiction. However, an ordinance practically identical with the one now before us was first passed by the town council of Green River, Wyoming. Similar ordinances have been enacted by other cities and so many state and federal courts have had the ordinance before them that the "Green River" ordinance now has a definite place in the judicial parlance of the United States. Some of the cases wherein the ordinance has been held invalid are: Jewel Tea Company v. City of Geneva, 137 Neb. 768, 291 N.W. 664; 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; New Jersey Good Humor, Inc., v. Board of Commissioners, 124 N.J.L. 162, 11 A.2d 113; Real Silk Hosiery Mills v. City of Richmond, D.C. Va., 298 F. 126; Jewel Tea Co. v. Town of Bel Air, 172 Md. 536, 192 A. 417; DeBerry v. City of La Grange, 62 Ga.App. 74, 8 S.E.2d 146.

Among the cases upholding the ordinance will be found: Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112, 88 A.L.R. 177; Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456; City of Shreveport v. Cunningham, 190 La. 481, 182 So. 649.

Concisely stated, the city's argument is that it has authority to define and abate nuisances under § 3490-7, Ky.Stats., and the case of Nourse v. City of Russellville, 257 Ky. 525, 78 S.W.2d 761, holds that in enacting ordinances to preserve and promote the health, morals, security and general welfare of its citizens, a city has broad discretion in determining for itself what is harmful and inimical. That courts have no right to substitute their views for those of the municipal body where there is a reasonable difference of opinion as to what might be harmful to the health, morals and general welfare of the citizens of the city; and as courts of last resort of many states differ as to the validity of this very ordinance, and as even some of the judges differ with their brethren on the same court relative to its validity, we must uphold the ordinance.

There is no room for debate in this jurisdiction as to the city's authority to define and abate a nuisance, or that under its police power it has broad discretion in determining what may be injurious to the public health, morals and general welfare; and courts may not replace the view of the city's legislative body with their...