City of Orangeburg v. Farmer

• Decision Date: 15 July 1936
• Docket Number: 14335.
• Parties: CITY OF ORANGEBURG v. FARMER.
• Court: South Carolina Supreme Court

186 S.E. 783

181 S.C. 143

CITY OF ORANGEBURG v. FARMER.

No. 14335.

Supreme Court of South Carolina

July 15, 1936

Appeal from Common Pleas Circuit Court of Orangeburg County; M. M Mann, Judge.

O. R Farmer was convicted of violating a city ordinance, and he appeals.

Reversed and appellant dismissed.

Adam H Moss, of Orangeburg, and C. T. Graydon and Benet, Shand & McGowan, all of Columbia, for appellant.

Sims & Sims, of Orangeburg, for respondent.

BAKER Justice.

In November, 1933, the city council of Orangeburg passed an ordinance which was intended to prevent persons from soliciting the sale of merchandise by going in and upon private residences within the incorporate limits of Orangeburg. The full text of the ordinance will more clearly show its intent and purpose, and is in the following language:

"An Ordinance to Declare the Practice of Solicitors, Peddlers, Hawkers, Itinerant Merchants and Transient Vendors in Going In and Upon Private Residences for the Purpose of Soliciting Orders or for Selling or Disposing of Goods, Wares and Merchandise Without Being Requested or Invited to do so, a Nuisance and to Provide Penalties for Anyone Perpetrating Such a Nuisance.

Be it Ordained by the Mayor and Councilmen of the City of Orangeburg, in council assembled, and by Authority of the same:

Section 1. The practice of going in and upon private residences in the City of Orangeburg, South Carolina, 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 the same is hereby declared to be a nuisance and punishable as such nuisance as a misdemeanor.

Section 2. The Chief of Police and the police force of the City of Orangeburg are hereby required and directed to suppress the same, and to abate any such nuisance as is described in the first section of this ordinance.

Section 3. Any person convicted of perpetrating a nuisance as described and prohibited in the first section of this ordinance, upon conviction thereof before the Recorder, or acting Recorder, shall be fined not more than One Hundred ($100.00) Dollars, or imprisoned for not more than thirty (30) days, with or without labor on the public works.

Section 4. All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed."

Appellant is a salesman for the Fuller Brush Company, and conducts his business in towns and cities by soliciting orders from house to house, and was admittedly so engaged in the city of Orangeburg at the time he was arrested by a police officer of said city for a violation of the ordinance hereinabove set forth. According to the testimony, the agent of the Fuller Brush Company, in this case appellant, takes orders at the private residences of persons, transmits these orders to Atlanta, Ga., where the goods required are sent to the agent by mail, and are by the agent delivered to the persons giving the orders (customers) and collection of the purchase price made.

On January 8, 1935, the appellant was engaged at his occupation as a salesman for the Fuller Brush Company, and, according to the undisputed testimony, and in fact, the admission of the appellant, had solicited at several private residences to make sales of merchandise, and while so engaged was arrested by said police officer. He was thereafter, on March 7, 1935, tried and convicted in the recorder's court of the city of Orangeburg, and sentenced by the recorder to pay a fine of $10, or serve 10 days in jail.

An appeal was had from this judgment to the court of general sessions for Orangeburg county, and Honorable Marvin M. Mann, presiding Circuit Judge, on February 18, 1936, passed an order holding that the ordinance in question was reasonable and valid as a matter of law, and was within the corporate powers of the city of Orangeburg to enact. Thus the appeal from the conviction in the recorder's court was dismissed, and, from this judgment of the court of general sessions, an appeal was taken to this court.

The exceptions are twelve in number, and in the printed brief of appellant, it is stated that the "questions involved" are:

"1. Is the ordinance in question a reasonable exercise of the power conferred upon the municipality?

2. Does the ordinance come within a valid and reasonable exercise of the police power of the City of Orangeburg?

3. Is the ordinance violative of the constitutional guarantees of the State and Federal Constitutions?

4. Under the testimony can a conviction be sustained under the ordinance in question?

5. Does the ordinance violate the commerce clause of the Constitution of the United States?

6. Should the ordinance be declared void because of economic conditions?"

We will not discuss the "questions involved" separately, since we agree with appellant that the first four questions may well be considered together.

There is very little, if any, dispute about the facts in the matter. If the ordinance is a valid and reasonable exercise of the general power vested in towns and cities under our law, then appellant is clearly guilty, and the judgment and sentence is warranted. But if the ordinance is unreasonable as defined by this court, or if it contravenes any of the constitutional provisions invoked in this appeal, then the conviction and judgment should be reversed. Our inquiry, therefore, will be directed to the question as to the validity of the ordinance under the decisions of our courts.

As hereinabove stated, there are twelve exceptions to the rulings of the circuit court, which raise many grounds challenging the validity of the ordinance, and these exceptions have been reduced to six questions; but there is no necessity to dispose of the exceptions separately for there are certain clearly defined underlying principles which...