Lammon v. City of San Antonio, 11987.

• Citation: 223 S.W.2d 533
• Decision Date: 28 September 1949
• Docket Number: No. 11987.,11987.
• Parties: LAMMON v. CITY OF SAN ANTONIO et al.
• Court: Court of Appeals of Texas

223 S.W.2d 533

LAMMON v. CITY OF SAN ANTONIO et al.

No. 11987.

Court of Civil Appeals of Texas. San Antonio.

September 28, 1949.

Rehearing Denied October 19, 1949.

S. D. Hopkins, San Antonio, for appellant

Austin F. Anderson, City Atty., San Antonio, Hugh R. Robertson, Asst. City Atty., San Antonio, for appellees.

NORVELL, Justice.

Edward Lammon brought this suit against the City of San Antonio and Fred Palmer, its Chief of Police, seeking to enjoin the city and its police department from enforcing a city ordinance (No. OG-203) relating to the solicitation of magazine subscriptions within the City of San Antonio. The trial court refused to grant an injunction.

It appears that Lammon is the sales manager for National Publications, Incorporated, of Los Angeles, California, which publishes eleven magazines, including the "Sports Digest" and "International Chefs and Stewards Magazine." The corporation has no office or place of business in Texas and none of its magazines are published within the State. Sales of subscriptions are effected by a crew of salesmen and saleswomen who move at irregular intervals from state to state and city to city.

Lammon, as the head of this sales crew, applied for a permit to solicit subscriptions within the City of San Antonio. Ordinance OG-203 provides that "it shall be unlawful for any person to solicit advertising, to sell or offer to sell subscription contracts for any magazine, book or periodical within the City of San Antonio without first securing a permit from the mayor as herein provided."

The ordinance provides that the applicant shall give certain information to the "Vigilance Committee," evidently an investigating body, which shall recommend to the mayor that a permit be granted or refused. Upon a favorable report from the committee the mayor may issue a permit. The ordinance provides that upon the permit, when granted, "shall be indorsed in red letters, `Not transferable' and `Not good on a street or in a public place.'"

It is also provided that, "Nothing in the Ordinance shall be deemed to grant a right to solicit or beg upon the streets or in public places of the City of San Antonio."

Lammon secured a form of permit signed by the Secretary of the Vigilance Committee, but not by the mayor, which contained the wording, "Not good on a street or in a public place."

While soliciting magazine subscriptions upon the streets of San Antonio, certain members of Lammon's sales crew were arrested by the police.

It seems clear to us that the appellant and his sales crew were engaged in commercial soliciting for private profit. The case, consequently, is not governed by Schneider v State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155, and Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949, and cases of similar import, but is controlled by authorities like Greene v. City of San Antonio, Tex.Civ. App., 178 S.W. 6, 7, wherein Chief Justice Fly, speaking for the Court, said: "No individual has the inherent right to use a street or highway for business purposes. No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the...