Ideal Tea Co. v. City of Salem

• Decision Date: 27 July 1915
• Citation: 77 Or. 182,150 P. 852
• Parties: IDEAL TEA CO. ET AL. v. CITY OF SALEM ET AL.
• Court: Oregon Supreme Court

150 P. 852

77 Or. 182

IDEAL TEA CO. ET AL. v. CITY OF SALEM ET AL.

Supreme Court of Oregon

July 27, 1915

Department 2.

Appeal from Circuit Court, Marion County; William Galloway, Judge.

Action by the Ideal Tea Company and another against the City of Salem and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

This is a suit to enjoin the enforcement of a municipal ordinance. The material averments of the complaint are to the effect That pursuant to subdivision 7 of section 6 of the charter of the city of Salem, empowering its mayor and aldermen "to license, tax and regulate * * * peddlers, sample peddlers * * *" (Laws Or. 1899, p. 921), the common council on November 6, 1911, attempted to enact Ordinance No. 1009 section 13 of which, as far as important herein, reads:

"Peddlers passing from place to place in the city of Salem, Oregon on foot and not crying their wares, shall pay a license fee of $75.00 for one (1) year; * * * $15.00 for one (1) month $5.00 for one (1) week and $1.00 for one (1) day. * * * The term peddler as used in this section is defined to mean * * * every person who for himself or as agent of another goes from place to place or from house to house selling or offering to sell for future delivery, by sample or catalogue, at retail to individual purchasers who are not dealers in the articles sold. Provided that the provisions of this section shall not apply to any merchant, or dealer having a regular place of business in the city of Salem Oregon, in taking or soliciting orders for the sale and delivery of his goods, wares or merchandise."

That the Ideal Tea Company is a corporation engaged in selling tea, coffee, spices, etc., having its principal office in Portland, Or., and conducting business outside that city by agents, and C. F. Henshaw is its representative in Salem, Or., where he had resided for a long time prior to May 24, 1915, but had no place of business therein. That he was engaged at Salem in taking orders for merchandise, which requests were forwarded to his principal, whereupon the goods desired were sent and delivered to the customers, but he did not carry any wares that he offered for sale. That on May 24, 1915, a verified complaint was filed in the recorder's court of Salem, charging Henshaw with peddling in that city without a license, and being apprehended he was compelled to put up cash bail. That such criminal action has not been tried, but the defendants Charles F. Elgin, city recorder, and J. T. Welch, marshal, are attempting to prosecute the charge, and the plaintiffs have been prevented from pursuing their business in Salem, to their damage in the sum of $500. That the ordinance is void, in that it is not uniform in its application to all persons similarly situated, and violates section 20 of article 1 of the Organic Law of the state, notwithstanding which the defendants are threatening to enforce the provisions of the attempted enactment, to prevent which the plaintiffs have no adequate remedy at law. A demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of suit, was overruled; and, the defendants declining further to plead or answer, the relief prayed for in the complaint was granted, and they appeal.

William H. Trindle, of Salem, for appellants. Geo. G. Bingham, of Salem, for respondents.

MOORE, C.J. (after stating the facts as above).

When, under color of void legislation relating to misdemeanors, the prosecution of an alleged offender is threatened, which attempted enactment if enforced would deprive a party of a valuable property right, a court of equity, upon proper application, will intervene, and by injunction prevent the menaced injury. Sandys v. Williams, 46 Or. 327, 80 P. 642; Marsden v. Harlocker, 48 Or. 90, 85 P. 328, 120 Am. St. Rep. 786; Renshaw v. Lane County Court, 49 Or. 526, 89 P. 147; Hall v. Dunn, 52 Or. 475, 97 P. 811, 25 L. R. A. (N. S.) 193; Guernsey v. McHaley, 52 Or. 555, 98 P. 158; Portland Fish Co. v. Benson, 56 Or. 147, 108 P. 122; Wiley v. Reasoner, 69 Or. 103, 138 P. 250; Sherod v. Aitchison, 71 Or. 446, 142 P. 351.

It is almost universally held that a person who, by displaying samples, solicits, orders for the sale of goods for future delivery, is not a "peddler." Scribner v. Mohr, 90 Neb. 21, 132 N.W. 734, Ann. Cas. 1912D, 1287, 1293. The legislative assembly of a state may adopt reasonable modifications of former definitions of words, so as to make their interpretation conform to modern usage. Ex parte Case, 70 Or. 291, 135 P. 881, 141 P. 746. Whether the common council of the city of Salem, without an express grant of authority for that purpose, which is not to be found in the organic law of the municipality, can prescribe the meaning of words different from their usual acceptation, would seem to be very doubtful, for in subdivision 5 of section 6 of the charter authority is given "to prevent and remove nuisances, and to declare by general rules what shall constitute the same," and in subdivision 28 thereof power is conferred "to define what shall constitute vagrancy." Laws Or. 1899, pp. 924, 928. But, however this may be, it will be assumed, without deciding the question, that the interpretation of the word "peddler" as given in the ordinance was justified by the charter.

The clause of the fundamental law, invoked to defeat section 13 of the ordinance assailed, reads:

"No law shall be passed granting to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens." Const. Or. art. 1, § 20.

This interdiction, though evidently enacted to restrict the legislative assembly, also operates as a limitation upon the common council of a municipality, thereby preventing any discrimination against nonresidents in occupation or license taxes. McQuillin, Mu. Ord. § 219.

The ordinance imposing a license upon peddlers who have no regular place of business in Salem, but who solicit therein orders for the sale and the future delivery of tea, coffee spices, etc., should not be classed as an exercise of the police power, since it would seem that such business could not injuriously disturb the peace, molest the order, impair the...