Hall-Omar Baking Co. v. Commissioner of Labor and Industries

• Decision Date: 05 July 1962
• Docket Number: HALL-OMAR
• Citation: 344 Mass. 695,184 N.E.2d 344
• Parties: BAKING COMPANY v. COMMISSIONER OF LABOR AND INDUSTRIES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 344

184 N.E.2d 344

344 Mass. 695

HALL-OMAR BAKING COMPANY v. COMMISSIONER OF LABOR AND INDUSTRIES.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 9, 1962.

Decided July 5, 1962.

Franklin T. Hammond, Jr., Joseph P. Rooney, Boston, with him, for plaintiff.

Lawrence E. Cooke, Asst. Atty. Gen., Raymond F. O'Connell, Boston, with him, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiff (Hall-Omar), a maker and retailer of bakery products, seeks a declaration under G.L. c. 231A that its drivers and supervisors are not 'hawkers' or 'pedlers' under G.L. c. 101, and that c. 101, if applicable, is discriminatory and unconstitutional as applied to it and to its employees, particularly in view of the exemption of milk companies in their household deliveries of dairy products. ¹ The cause was reserved in the Superior Court and reported without decision on the pleadings and an agreement as to all the material facts.

Hall-Omar, a Delaware corporation, owns and operates bakeries in Massachusetts and other States and makes and sells bakery products. It has a bakery in Somerville and operates in Dedham a distribution depot and sales office. It has approximately 185 trucks owned or leased by it. It employs in the operation of the trucks and the sale and delivery of bakery products therefrom approximately 163 driver-salesmen and twenty-five supervisors. The driver-salesmen operate the bakery trucks throughout most of eastern Massachusetts. On each of the trucks the plaintiff's name is prominently displayed and the driver-salesmen wear uniforms on which that name is also displayed. The driver-salesmen operate over 138 routes, each of which includes portions of one or more cities and towns in the Commonwealth. On each business day each truck is loaded with fresh bakery products at the bakery in Somerville, or at the depot in Dedham, and each driver-salesman traverses a portion of his route so as to call on each customer approximately every other day. Each driver-salesman sells and delivers to each customer such bread, cake, pies or other bakery products as the customer at that time desires. Ninety per cent of the customers have standing orders for bread, and some have standing orders for other bakery products. Driver-salesmen also may take special orders to be filled ahead, or may deliver pursuant to special orders previously received. Customers in most cases pay cash, but credit may be extended at the discretion of the driver-salesman. Driver-salesmen solicit new customers along their routes, but do not solicit sales by means of 'outcry.' Under union agreements Hall-Omar pays the license fees for its driver-salesmen.

The licensing requirements for hawkers and pedlers are in c. 101, § 22. The director may grant a license 'to any person who files in his office a certificate signed by the mayor or by a majority of the selectmen, stating that to the best of his or their knowledge and belief the applicant * * * is of good repute as to morals and integrity, and is, or has declared his intention to become, a citizen of the United States. The mayor or selectmen, before granting such certificate, shall require the applicant to make oath that he is the person named therein, and that he is, or has declared his intention to become, a citizen of the United States.' The fee for a State wide license is $50. The fees for licenses for towns range from $4 to $26 per town, and for licenses for cities from $11 to $26 per city, depending upon size. A hawker or pedler licensed under § 22 is 'subject to such local rules and regulations as may be made in a city by the mayor and city council and in a town by the selectmen.'

Certain exemptions are set out in c. 101, § 15. See footnote 1, supra. Statute 1937, c. 214, inserted the exemption of 'persons licensed under * * * [c. 94, § 40] with respect to the sale by them of eggs or milk, skimmed milk, cream, butter, cheese or other milk products, except frozen desserts as defined in * * * [c. 94, § 65G].' Statute 1955, c. 757, § 11, inserted 'eggs' before 'milk' in the statement of this exemption.

General Laws c. 94, § 40, provides: 'No person, except a producer selling milk to other than consumers, or selling not more than twenty quarts per day to consumers, shall deliver, exchange, expose for sale or sell or have in his custody or possession with intent so to do any milk, skimmed milk or cream in any town where an inspector of milk is appointed, without obtaining from such inspector a license which shall contain the number thereof, the name, place of business, residence, number of vehicles used by the licensee and the name of each driver or other person employed by him in carrying or selling milk. * * *' The fee for each license, by § 41, is fifty cents and each license is valid 'until June first following' subject to suspension or revocation.

Milkmen (driver-salesmen) employed by companies licensed under c. 94, § 40, sell eggs, milk, skimmed milk, cream, butter, cheese and other milk products, except frozen desserts, over regular routes visited on alternate days. Such employees selling such products only are not licensed pursuant to c. 101. Calls on customers are made between 7 A.M. and 4 P.M. for the sale and delivery of such of the products listed as the customers desire. Most customers have standing orders for milk, and some have standing orders for eggs, butter or other milk products. Special orders to be filled later are sometimes taken. When desired by customers the employees bring the products into the house and place them in the refrigerator, sometimes with the use of a house key. The milk companies, like the bakery companies, constantly seek to increase sales and attract new customers through the efforts of the driver-salesmen. Customers pay the driver-salesman by cash or check. Credit may be extended at the employee's discretion.

The driver-salesmen of bakeries and milk companies are paid a commission on sales. Both groups of employers 'compete in a common labor market for the hiring of qualified driver-salesmen.'

1. General Laws c. 101 applies to Hall-Omar's empoyees. Section 13 provides: 'Except as hereinafter expressly provided, the terms 'hawker' and 'pedler' as used in this chapter shall mean and include any person, either principal or agent, who goes from town to town or from place to place in the same town selling or bartering, or carrying for sale or barter or exposing therefor, any goods, wares or merchandise, either on foot, on or from any animal or vehicle.'

No stated exception applies to those selling bakery products. In Commonwealth v. Ober, 12 Cush. 493, 495, Shaw, C. J., said of the statute in an earlier form, ² 'But our statute goes further, and not only proscribes actual hawkers and pedlers * * * but it extends to all persons, doing the acts prescribed.' See also Commonwealth v. Bergeron, 296 Mass. 60, 5 N.E.2d 31 (confining sales to regular customers who have agreed to buy from the agent does not make the statute inapplicable).

There can be no doubt of the generality of the application of the statute and its application to Hall-Omar's employees in the light of the report in 1929 of a special commission to investigate the laws relating to hawkers and pedlers pursuant to Res. 1928, c. 62. This report, 1929 Senate Doc. No. 5, deals primarily with the effort to amend the statute made by 'the large baking concerns, whose business is conducted largely through selling their products by house to house delivery from wagons or vehicles.' The commission recommended against amendments sought by the bakers to reduce the license fee or authorize one license to the employer (as the milk companies now enjoy, town by town), but it did suggest other amendments. ³

2. The principles applicable whenever the constitutionality of a statute is attacked are well established. 'Every presumption is indulged in favor of the validity of a statute.' Howes Bros. Co. v. Massachusetts Unemployment Compensation Commn., 296 Mass. 275, 283-284, 5 N.E.2d 720, 726, cert. den. 300 U.S. 657, 57 S.Ct. 434, 81 L.Ed. 867. Merit Oil Co. v. Director of the Div. on the Necessaries of Life, 319 Mass. 301, 305-306, 65 N.E.2d 529. Legislative classification is valid if it is rational and bears some relationship to the object intended to be accomplished. Maher v. Brookline, 339 Mass. 209, 213, 158 N.E.2d 320, and cases cited. There is a very wide discretion in the Legislature. Opinion of the Justices, 303 Mass. 631, 648, 22 N.E.2d 49, 123 A.L.R. 199. McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 6 L.Ed.2d 393. 'If the question is fairly debatable, courts cannot substitute their judgment for that of the Legislature.' Druzik v. Board of Health of Haverhill, 324 Mass. 129, 139, 85 N.E.2d 232, 237. General Elec. Co. v. Kimball Jewelers, Inc., 333 Mass. 665, 675, 132 N.E.2d 652. If a rational basis may be discerned for distinguishing between businesses which in many respects are similar, Sunday closing laws which exempt some such businesses are not unconstitutional because of the exemptions. McGowan v. Maryland, supra, 366 U.S. 425-427, 81 S.Ct. 1101, 6 L.E.2d 393. Gallagher v. Crown Kosher Super Mkt. of Mass. Inc., 366 U.S. 617, 623-624, 81 S.Ct. 1122, 6 L.Ed.2d 536. See Commonwealth v. Chamberlain, 343 Mass. ----, 175 N.E.2d 486. ^a See also Mosey Cafe, Inc. v. Mayor of Boston, 338 Mass. 207, 211, 154 N.E.2d 591. The burden is on the person attacking the statute to show that there is no conceivable ground for sustaining it. Commonwealth v. Chamberlain, supra, 175 N.E.2d 486. ^b But 'statutes in regard to the transaction of business must operate equally upon all citizens who desire to engage in the business, and * * * there shall be no arbitrary discrimination between different classes of citizens.' Commonwealth v. Hana, 195 Mass. 262, 266, 81 N.E. 149, 151, 11 L.R.A.,N.S., 799 (hawkers' and pedlers' law [...