Jewel Tea Co. v. City of Geneva
| Decision Date | 29 March 1940 |
| Docket Number | 30755. |
| Citation | 291 N.W. 664,137 Neb. 768 |
| Parties | JEWEL TEA CO. ET AL. v. CITY OF GENEVA ET AL. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The only power which a city has, to declare the house-to-house solicitation of customers is a nuisance, is to find that it interferes with the health, peace, order, and good government of the city.
2. When an ordinance attempts to prevent one from engaging in a lawful and legitimate occupation, such an ordinance can be impeached as unreasonable, unconstitutional and void.
3. " The act of soliciting order for sale of goods in and upon private residences without consent of owner or occupant is not a ‘ public nuisance' and may not be punished as a crime or misdemeanor." Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176.
4. " The exercise of the police power by a municipal corporation must be directed towards and have a rational relation to protection of a basic interest of society rather than the mere advantage of particular individuals and must be reasonable and free from arbitrariness." N. J. Good Humor, Inc., v. Board of Commissioners, 124 N.J.L. 162 11 A.2d 113.
5. The ordinance under examination is not regulatory, but preventative and prohibitive as against an act which is innocent in itself, and which does not constitute a public nuisance.
6. " Municipal power encroaching upon individual rights does not exist unless plainly conferred by the city charter or other law." State v. Wiggenjost, 130 Neb 450, 265 N.W. 422.
7. " A state may not, under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 44 S.Ct. 412, 68 L.Ed. 813, 32 A.L.R. 661.
Appeal from District Court, Fillmore County; Proudfit, Judge.
Action by the Jewel Tea Company, Inc., the Grand Union Tea Company, and Larry A. Wadhams against the city of Geneva and others for a declaratory judgment that a certain ordinance was void, and for an injunction to restrain the enforcement of the ordinance against solicitors and peddlers by the City of Geneva. From an adverse judgment, the defendants appeal.
Judgment affirmed.
Kennedy, Holland, DeLacy & Svoboda and Leon, White & Lipp, all of Omaha, amici curiae.
Waring & Waring, of Geneva, for appellants.
Harry A. Spencer and Dwight W. Dahlman, both of Lincoln, for appellees.
Heard before SIMMONS, C. J., ROSE, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ., and ELLIS, District Judge.
A petition was filed, praying for a declaratory judgment that a certain ordinance was void, and asking, among other things, for injunction restraining the enforcement of such ordinance against solicitors and peddlers by the city of Geneva. To this, the city of Geneva and its officers filed an answer, containing several admissions and a general denial. Plaintiffs' demurrer to this answer was sustained by the court, and the city of Geneva and its officers appeal.
The Jewel Tea Company, Inc., the Grand Union Tea Company, Inc., and Larry A. Wadhams filed a petition of 18 pages against the city of Geneva and its mayor and all of its officers, setting up that on January 3, 1938, the city adopted ordinance No. 146, a portion of which reads as follows:
The ordinance provided that upon conviction for violation the offender should be fined not less than $25 nor more than $100 and costs.
It is further alleged in the petition that Larry A. Wadhams, plaintiff, as agent of the Jewel Tea Company, visits his regular customers in Geneva every two weeks, calling at a specified time of day arranged by agreement with the customer, and that all calls made by said Wadhams are for one or all of the following purposes: (1) To deliver merchandise previously ordered; (2) to take or solicit orders, in accordance with the standing agreement and understanding with each of said customers, for merchandise to be subsequently delivered; or (3) to collect amounts from said customers legally due to the Jewel Tea Company. It is alleged in said petition that plaintiffs do not solicit any orders for any merchandise upon the public streets, nor do plaintiffs hawk or peddle any merchandise of any nature in said city; that there are outstanding balances due the Jewel Tea Company of approximately $100, and that there is $50 due the Grand Union Tea Company, from their customers in said city.
It is further charged, in the fourteenth paragraph of said petition, in effect, that the mayor and city attorney have repeatedly forbade the plaintiffs from carrying on their business in Geneva, and have threatened both the agent and district manager that they, or their representatives, would be arrested and prosecuted for every stop or call made upon their customers in Geneva, and that said plaintiffs must discontinue their business in Geneva, and that said mayor and city attorney intend to put the Jewel Tea Company and Grand Union Tea Company out of business in the city of Geneva.
In paragraph 18 it is alleged: " If the said Jewel Tea Co. is prevented from making the regular calls provided for in the contracts between said company and its customers, said plaintiffs will lose the good will of said customers built up over the past twenty-five (25) years, and substantial and valuable property rights of said plaintiffs will be destroyed; " and similar allegations were made in reference to the Grand Union Tea Company.
It is also alleged in said petition that the defendant city, through its marshal, on instructions from the mayor, arrested Earl R. Slattery, salesman for the Grand Union Tea Company, on February 1, 1939, at a time when he was calling on a regular customer, and upon trial he was convicted of violating said ordinance No. 146; that the marshal of said city, on instructions of the mayor, also arrested Larry A. Wadhams, plaintiff, on March 28, 1939, while he was calling upon his customers of the Jewel Tea Company, and that his trial is set for hearing April 11, 1939, and the plaintiffs therefore pray that the court issue an order temporarily restraining the defendants and each of them from arresting or prosecuting the said agents of the Jewel Tea Company, or Grand Union Tea Company, for soliciting orders in Geneva, and that the court render a declaratory judgment, decreeing that said ordinance is invalid, void, and unconstitutional, and at the trial make the temporary injunction permanent against the city and its officers.
The defendants filed an answer, admitting that the Jewel Tea Company and the Grand Union Tea Company are duly incorporated, and that the city of Geneva is a city of the second class, and denied each and every other allegation contained in said petition except certain admissions hereinafter made.
The defendants further allege in the answer that on March 28, 1939, the plaintiff Larry A. Wadhams, in violation of the ordinances of the city of Geneva, without having been requested or invited so to do, entered upon the premises of occupants and owners of private residences of the city of Geneva for the purpose of soliciting orders for the sale of goods, wares and merchandise; that a complaint was duly filed against Wadhams; that said action was set for trial, and shortly before trial the petition of the plaintiffs was filed, and defendants allege that the plaintiffs have a complete, full, and adequate remedy in said criminal case now pending in court entitled, " The State of Nebraska, City of Geneva vs. Larry A. Wadhams."
It is further stated that Earl R. Slattery, as alleged in plaintiffs' petition, was an agent or employee of the Grand Union Tea Company; that he entered upon premises of residents of the city of Geneva to solicit orders for merchandise without having been invited so to do, for which violation of the ordinance he was arrested and found guilty in the police court, and that said Slattery has appealed from his conviction to the district court for Fillmore county, and defendants aver that the plaintiff Grand Union Tea Company has a full, complete, and adequate remedy at law in the criminal case which is now pending in the district court for Fillmore county, entitled " The State of Nebraska, City of Geneva vs. Earl R. Slattery."
It is further alleged that the said Jewel Tea Company and the said Grand Union Tea Company are, in truth and in fact, peddlers of groceries within the city of Geneva, and
It is further alleged that the petition of plaintiffs does not set forth and allege facts sufficient to require this court to exercise its discretion to enter a declaratory judgment decree, and the defendants, having fully answered plaintiffs' petition, pray that they may go hence without day and...
To continue reading
Request your trial