Jewel Tea Co. v. Town of Bel Air

• Decision Date: 25 May 1937
• Docket Number: 30.
• Citation: 192 A. 417,172 Md. 536
• Parties: JEWEL TEA CO. v. TOWN OF BEL AIR ET AL.
• Court: Maryland Court of Appeals

192 A. 417

172 Md. 536

JEWEL TEA CO. v. TOWN OF BEL AIR ET AL.

No. 30.

Court of Appeals of Maryland

May 25, 1937

Appeal from Circuit Court, Harford County; John A. Robinson, Judge.

Suit by the Jewel Tea Company against the Town of Bel Air, a municipal corporation, and others. From a decree sustaining defendants' demurrer to the bill of complaint, the plaintiff appeals.

Reversed and remanded, with directions.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL SHEHAN, and JOHNSON, JJ.

Frederick Lee Cobourn, of Havre de Grace, and H. Warren Buckler, Jr. of Baltimore, for appellant.

Edwin H. W. Harlan, of Bel Air, for appellees.

SLOAN Judge.

The Jewel Tea Company, a New York corporation, plaintiff, filed a bill of complaint praying a writ of injunction to restrain the Town of Bel Air, a municipal corporation of this State Raymond Fulker, the town bailiff, and Stanley S. Spencer, a justice of the peace, from enforcing two ordinances of the Town of Bel Air.

By section 1 of one of these ordinances (No. 74), "The practice of going in and upon private residences, business establishments or offices in the Town of Bel Air, Maryland by solicitors, peddlers, hawkers, itinerant merchants, and transient vendors of merchandise, not having been requested so to do by the owner or owners, occupants of said private residences, business establishments or offices, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and 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." The third section provided that it should "not apply to persons employed by or representing any established merchant, business firm or corporation located and regularly doing business in the Town of Bel Air or to farmers residing in Harford County selling any food item raised or produced by themselves, or to any one duly licensed," and provided that on conviction offenders be fined from $1 to $100 for each offense.

The bill described the business of the plaintiff with much detail, which, briefly, is the sale of teas, coffees, extracts, etc., through solicitors or agents, who go from house to house ringing doorbells of customers, old and new, present and prospective. These agents take orders, which are sent to Washington, D. C., to be filled for shipment and delivery to customers at Bel Air. An agent of the plaintiff, at Bel Air, R. S. Marshall, had been arrested for the violation of Ordinance No. 74, but had not been tried, and was advised, according to the bill of complaint, by Raymond Fulker, town bailiff, that he would not be prosecuted, if he took out a license prescribed by Ordinance No. 39, which provided that "it shall be unlawful for any person, not a resident of Harford County, to peddle, sell, expose or offer for sale upon the streets of said Town any article of food, either vegetable, fruit, flesh or fish, without having paid the Town Commissioners of said Town of Bel Air twenty five dollars a year," and for the failure to secure such a license provided for a fine for each and every offense.

The bill further alleges that the bailiff has not only arrested the agent Marshall, but has threatened to arrest him and any agents of the plaintiff on every occasion he may find him or them serving regular customers or attempting to secure new customers, and the bill charges that both ordinances are unconstitutional and void, and unlawfully discriminate against the plaintiff.

The defendants demurred to the bill of complaint, and from a decree sustaining the demurrer the plaintiff appeals.

The plaintiffs contend (1) that equity has jurisdiction to determine the validity of the ordinances; (2) that Ordinance No. 74 is void because the Town of Bel Air has no authority to declare such business as conducted by the plaintiffs' agents a nuisance; and (3) that both ordinances deny the appellants the equal protection of the laws, are discriminatory, and interfere with interstate commerce, and argues all of these questions in its brief. The defendants' only argument is that the plaintiff has an adequate remedy at law in the defense of the criminal case, and equity is therefore without jurisdiction. If this bill had been filed by Marshall, plaintiff's agent, and there was only one prosecution and none other threatened, there would have been some merit in the defendants' contention. But this was filed by Marshall's employer, whose business in Bel Air was threatened by continued and repeated arrests and prosecution of its agents. Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255; Hutchinson v. Beckham (C.C.A.) 118 F. 399.

It has been often decided by this court that the enforcement of a...