City of Osceola v. Blair

• Decision Date: 10 February 1942
• Docket Number: 45574.
• Citation: 2 N.W.2d 83,231 Iowa 770
• Parties: CITY OF OSCEOLA v. BLAIR.
• Court: Iowa Supreme Court

2 N.W.2d 83

231 Iowa 770

CITY OF OSCEOLA v. BLAIR.

No. 45574.

Supreme Court of Iowa

February 10, 1942

O M. Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for appellant.

Parrish Guthrie, Colflesh & O'Brien, of Des Moines, and E. K Jones, of Osceola, for appellee.

STIGER Justice.

Ordinance No 114 of the City of Osceola, Iowa, provides that the practice of being in and upon private residences by solicitors (and other persons) for the purpose of soliciting orders for the sale of goods, wares and merchandise "not having been requested or invited so to do" by the owner or occupant of such private residences is a nuisance and punishable as a misdemeanor.

In July, 1940, defendant solicited subscriptions for McCall's magazine and Redbook magazine in Osceola in violation of the ordinance and was fined $100 and costs in Mayor's Court. On appeal to the district court the ordinance was held to be invalid. Whether or not the ordinance is valid is the only question submitted on appeal.

The business of soliciting orders at a private residence is not a nuisance. It is a lawful business in which the solicitor has a valuable property right and this ordinance is an unwarranted exercise of the police power of the city and violates the defendant's constitutional rights under Section 9, Article 1 of the Constitution of the State of Iowa, which provides that no person shall be deprived of life, liberty, or property without due process of law.

Section 5714, 1939 Code, grants municipal corporations the general power to pass ordinances necessary for the safety, health, prosperity, order, comfort, convenience, etc., of its inhabitants.

Section 5739 grants to cities and towns the power to prevent injury or annoyance from anything dangerous, offensive or unhealthful and to cause any nuisances to be abated.

Section 12395 reads: "12395 Nuisance--what constitutes--action to abate. Whatever is injurious to health, indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof."

The police power of a municipality under said statutes to declare and prevent nuisances, to promote the public welfare, and to provide for the safety and comfort of its inhabitants should be exercised in the interest of the public welfare. The business of soliciting orders from house to house is a lawful occupation and does not adversely affect the public health, safety or welfare. The ordinance in question does not bear any relation to the public interest. That a municipality cannot make a lawful occupation unlawful, cannot deprive a person of his property rights in such business by declaring by ordinance the business to be a nuisance when it is not a nuisance, is too well settled to require citation of authorities.

This ordinance, which declares that if a solicitor goes "in and upon" a private residence to conduct his lawful business without first being invited to enter upon the premises he is guilty of a misdemeanor and subject to a fine and imprisonment, imposes an unreasonable restraint upon a lawful business which is not required by the public interest, and, as stated, violates the due process clause of the Constitution.

In State v. Harrington, 229 Iowa 1092, at page 1096, 296 N.W. 221, at page 223, this court said:

"As stated in Liggett Co. v. Baldridge, 278 U.S. 105 [111], 49 S.Ct. 57, 59, 73 L.Ed. 204:

"'The police power may be exerted in the form of state legislation where otherwise the effect may be to invade rights guaranteed by the Fourteenth Amendment only when such legislation bears a real and substantial relation to the public health, safety morals, or some other phase of the general welfare.'

"The right to follow any of the common occupations of life, subject only to reasonable regulations under the police power in the interest of the public health, safety, and welfare, is succinctly and comprehensively stated in Scully v. Hallihan, 365 Ill. 185 [191], 6 N.E.2d 176, 179. We quote from the opinion:

"'It is one of the fundamentals of our democratic form of government that every citizen has the inalienable right to follow any legitimate trade, occupation, or business which he sees fit. His labor is his property, entitled to the full and equal protection of the law under the due process clause of the Federal Constitution. It is also embraced within the constitutional provision guaranteeing to everyone liberty and the pursuit of happiness. Allgeyer v. Louisiana, 165 U.S 578, 17 S.Ct. 427, 41 L.Ed. 832. This right to pursue any trade or calling is subordinate to the right of the state to limit such freedom of action by statutory regulation where the public health, safety, or welfare of society may require. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89...