Ex parte Buczkowski
| Decision Date | 21 January 1929 |
| Docket Number | No. 9328.,9328. |
| Court | U.S. District Court — Southern District of California |
| Parties | Ex parte BUCZKOWSKI. |
Bicksler, Smith, Parke & Catlin, S. C. Stoner, and Hiram E. Booth, all of Los Angeles, Cal., for petitioner.
Jess E. Stephens, City Atty., and Herman Mohr, Deputy City Atty., E. J. Lickley, City Prosecutor, and F. W. Fellows, Deputy City Prosecutor, all of Los Angeles, Cal., for respondent.
Petitioner seeks to be discharged from the custody of the chief of police of Los Angeles city. He was convicted of a misdemeanor under an ordinance of said city, which requires solicitors for the sale of merchandise upon the installment or deferred payment plan, before engaging in such business, to obtain a permit from the board of police commissioners. He was tried in the municipal court of the city, and his conviction was affirmed on appeal to the superior court of the county.
Petitioner contends that his conviction is illegal because he was engaged in soliciting business which was a part of interstate commerce, and that the ordinance, as to him, was in conflict with the commerce clause of the United States Constitution. The case of Real Silk Mills v. Portland, 268 U. S. 325, 45 S. Ct. 525, 69 L. Ed. 982, is cited as an authority applicable to the facts. Respondent at the hearing offered in evidence a duly authenticated transcript of the testimony heard in the municipal court, to which petitioner objected. The objection was overruled. Petitioner was then allowed, over the objection of respondent, to introduce several witnesses for the purpose, as asserted by him, of showing the interstate character of the transaction complained of.
The pertinent portion of the ordinance under which petitioner was charged reads as follows: "Every solicitor, canvasser or agent selling or offering for sale any goods, wares or merchandise, from house to house, upon any installment or deferred payment plan * * * shall before engaging in any such business, obtain a permit therefor from the Board of Police Commissioners of the City of Los Angeles."
The business of petitioner was that of securing orders for the enlargement of photographs, and for painting work to be done on the same. Frames for the pictures were to be included. There was evidence submitted in the municipal court which would authorize that court to conclude that a part of the work was to be done in the city of Los Angeles by persons there employed, and that the frames were to be sent from Chicago, which was the place of business of the corporation employing the petitioner. Petitioner at the trial denied that any of the work was to be done in Los Angeles, but several witnesses testified that at the time the order was being solicited he so represented to the proposed purchaser.
That it was within the police power of the municipality to require persons engaged in the business described in the ordinance to secure a permit from the police commission, cannot be questioned. And when the petitioner appeared before the municipal judge in answer to the charge preferred against him, the burden was upon him to show that he belonged to a class exempt from prosecution; that is, he was required to show that he was engaged in soliciting business to be handled through interstate commerce. Interstate Busses Corp. v. Holyoke St. Ry. Co., 273 U. S. 51, 47 S. Ct. 298, 71 L. Ed. 530. As to whether he belonged to such exempt class was a fact to be determined by the trial judge. That judge had jurisdiction to try the question, and indeed it was his duty to decide it. "Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the Constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them. * * *" Robb v. Connolly, 111 U. S. 624, at 637, 4 S. Ct. 544, 551 (28 L. Ed. 542); also, In re Jordan (D. C.) 49 F. 238.
Under the evidence the municipal court was justified in determining that, in the execution of the order solicited by petitioner, the "artist's" work was to be done in Los Angeles, and the frame for the finished work was to come from the main establishment of petitioner's employers at...
To continue reading
Request your trial