Fuller Brush Co. v. Town of Green River

• Decision Date: 15 July 1932
• Docket Number: No. 2167.,2167.
• Citation: 60 F.2d 613
• Parties: FULLER BRUSH CO. v. TOWN OF GREEN RIVER.
• Court: U.S. District Court — District of Wyoming

60 F.2d 613 (1932)

FULLER BRUSH CO. v. TOWN OF GREEN RIVER.

No. 2167.

District Court, D. Wyoming.

July 15, 1932.

Ray E. Lee and Sam M. Lee, both of Cheyenne, Wyo., for plaintiff.

T. S. Taliaferro, Jr., of Rock Springs, Wyo., for defendant.

KENNEDY, District Judge.

This is a suit in which the plaintiff seeks to have declared invalid and unconstitutional a municipal ordinance of the defendant and to restrain the enforcement of said ordinance against plaintiff.

The suit as originally filed challenged the constitutionality of an ordinance adopted by the defendant municipality, but in its answer the defendant set up that said ordinance had been revoked and another passed, the terms of which were therein set forth. The plaintiff thereupon, by permission of the court, filed a reply which in substance challenged the new ordinance as being like its predecessor in violation of the constitutional rights of the plaintiff and seeking to have its enforcement restrained. The case then went to final hearing upon the issues thus joined. It has been submitted upon an agreed statement of facts, which in substance are as follows: That the suit is one properly invoking the jurisdiction of the court; that the plaintiff is engaged in the sale and distribution of merchandise to the public over the United States, having a principal place of business at Hartford, Conn.; that in carrying on its business the plaintiff has representatives, solicitors, and agents in the various states to take orders for such merchandise which are forwarded to the home office or to distributing stations outside the state of Wyoming to be accepted and filled, and, when so accepted, the merchandise is shipped in interstate commerce to the person ordering the same; that the agents, solicitors, and representatives of the plaintiff, against the wishes of the occupants of some of the dwellings, go uninvited and upon private premises, the same being homes and residences of people living in the town of Green River where such agents solicit orders from the occupants of said private residences for the sale of the merchandise of the plaintiff; the same being contrary to the express provisions of the ordinance here challenged.

The ordinance in question, so far as it is material here, reads as follows:

"Section 1. The practice of going in and upon private residences in the Town of Green River, Wyoming, 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 Town Marshall and Police Force of the Town of Green River 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 shall be fined in a sum not less than Twenty-five (25.00) Dollars or more than One Hundred Dollars ($100.00), together with costs of proceedings, which said fine may be satisfied, if not paid in cash, by execution against the person of anyone convicted of committing the misdemeanor herein prohibited."

It is further stipulated that the pertinent laws covering grants and powers delegated by the Legislature of the state of Wyoming to municipalities such as the defendant are found in the following provisions of the Wyoming Revised Statutes, 1931:

Sec. 22-1427, subd. 29. "To make and establish such by-laws, ordinances, rules and regulations, not repugnant to the laws of the state, as may be necessary to carry into effect the provisions of this article, and to repeal, alter and amend the same as they shall seem to require; and to enforce all such bylaws, ordinances, rules and regulations, by inflicting penalties for the violation thereof, not exceeding one hundred dollars for any one offense, recoverable with costs, together with judgment of imprisonment, until the amount of said judgment and costs shall be paid."

Section 22-1427, subd. 6. "To declare what shall constitute a nuisance, and to prevent, abate and remove the same, and to take such measures for the preservation of the public health as they deem necessary, and to provide the town with water."

Section 32-712. "Nothing in §§ 32-700 to 32-711 shall be so construed as to prevent any city, town or village, incorporated under the laws of this state, or the proper corporate authority thereof, from passing or enforcing any ordinance, by-law, regulation or rule, regulating, restraining, or prohibiting nuisances of any kind or character, or from enforcing any ordinance, by-law, rule or regulation thereupon, already passed and in force."

It is further agreed that the merchandise which plaintiff sells, as aforesaid, consists of clothes, tooth, hair, manicure, massage, hat, furniture, cleaning, and other kinds of brushes; and also brooms, floor, wall, and furniture dusters, furniture polish, floor mops, window cleaners, and other household articles; that, when a representative of the plaintiff goes to a residence to solicit orders for merchandise, he approaches the same in a quiet and orderly manner, rings the doorbell or knocks on the door to attract the attention of the occupant of the house; that, when the occupant appears, the representative hands him a card stating substantially that he will call at some future time to redeem the card, and presents the person with a gift item, with the compliments of the plaintiff, and sometimes the representative makes an appointment to call at a definite time for an interview; when no one answers the knock or ring of the doorbell, the representative frequently leaves a card underneath the door or in some place where it will be readily seen, and subsequently the representative again calls at the house and presents the occupant with a gift item with the compliments of the plaintiff, explains the use of the article, and, with the permission of the occupant, exhibits and demonstrates by samples the products manufactured by plaintiff and endeavors to secure orders for delivery at a future date; when orders are given, they are entered upon an order sheet and a copy left with the customer, which orders are forwarded to the plaintiff at its home office or one of its branch offices for acceptance and filling; when orders are accepted, the merchandise is shipped by the plaintiff from outside the state of Wyoming to be delivered to the customer, and is, when received, delivered to such customer in a quiet and orderly manner by a representative of the plaintiff and the purchase price collected and remitted to the plaintiff. The defendant, by its answer, admits that it will arrest any person or persons who willfully and intentionally violate the provisions of the ordinance therein set forth.

Nothing appears in the agreed statement of facts as to the ground or reason for the passage of the ordinance in question, and it must therefore be considered upon the basis of whether or not upon its face it exceeds constitutional limitations.

The challenge to the validity of the ordinance is that it offends against the commerce, due process, and equal protection clauses of the Federal Constitution. Extended argument, orally and by brief, has been offered by counsel for the plaintiff along the line that the ordinance is in violation of the commerce clause, but, as it seems to me, such objection is not pertinent to the circumstances in this case, nor do the cases cited seem to support the theory of counsel along this line. It has been repeatedly held in connection with licensing or taxing laws or ordinances, as applied to nonresidents, that they violate the commerce clause in burdening interstate commerce; but neither of such elements appear in the ordinance here under consideration. Here the question appears to be one solely of whether the defendant has exceeded the authority purported to be vested in it by legislative enactment in invoking the police power by declaring certain transactions to be a nuisance.

A glance at the authorities seem to lead to this conclusion. In Reinman v. Little Rock, 237 U. S. 171, at pages 176, 177, 35 S. Ct. 511, 513, 59 L. Ed. 900, the Supreme Court has expressed itself upon the subject in the following language:

"It must therefore be treated, for the purposes of our jurisdiction, as an act of legislation proceeding from the lawmaking power of the state; for a municipal ordinance passed under authority delegated by the legislature is a state law within the meaning of the Federal Constitution; and any enactment, from whatever source originating, to which a state gives the force of law, is a statute of the state within the meaning of Judicial Code, § 237 28 USCA § 344, which confers jurisdiction upon this court. Atlantic Coast Line R. Co. v. Goldsboro, 232 U. S. 548, 555, 34 S. Ct. 364, 58 L. Ed. 721, 725, and cases cited. * * *

"While such regulations are subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the lawmaking power; and so long as the regulation in question is not shown to be clearly unreasonable and arbitrary, and operates uniformly upon all persons similarly situated in the particular district, the district itself not appearing to have been arbitrarily selected, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the laws, within the meaning of the 14th Amendment. Slaughter-House Cases, 16 Wall. 36, 62, 21 L. Ed. 394, 404; Northwestern Fertilizing Co. v. Hyde Park, 97 U. S. 659, 667, ...