McCormick v. City of Montrose

• Decision Date: 11 December 1939
• Docket Number: 14467.
• Citation: 105 Colo. 493,99 P.2d 969
• Parties: McCORMICK v. CITY OF MONTROSE.
• Court: Colorado Supreme Court

99 P.2d 969

105 Colo. 493

McCORMICK v. CITY OF MONTROSE.

No. 14467.

Supreme Court of Colorado, En Banc.

December 11, 1939

Rehearing Denied March 4, 1940.

Error to Montrose County Court; Earl J. Herman, Judge.

Proceeding by the City of Montrose against Leo W. McCormick, for a violation of city ordinance against solicitation of orders without request or invitation of people occupying residences. To review a judgment of conviction by the county court on appeal from municipal court, defendant brings error.

Affirmed.

HILLIARD C.J., and FRANCIS E. BOUCK, J., dissenting.

Moynihan-Hughes, of Montrose, R. H. Walker, of Denver, and Bamberger & Feibleman, of Indianapolis, Ind., for plaintiff in error.

Walter P. Crose, City Atty., of Montrose, for defendant in error.

Nourse & Dutcher, of Gunnison, amicus curiae.

Lee Doud & Griffith, of Denver, amici curiae on rehearing.

YOUNG Justice.

Plaintiff in error, who was defendant in the county court and will be so designated herein, was first convicted in the municipal court of the city of Montrose for violation of a city ordinance and on appeal to the county court of Montrose county was again convicted in that court and fined in the sum of fifty dollars. Defendant seeks a reversal of the county court's judgment.

In the county court the case was tried on stipulated facts. The stipulation was as follows:

'That the defendant, Leo W. McCormick, did on or about the 8th day of June, A. D. 1938, within the City of Montrose, County of Montrose, State of Colorado, solicit orders for the sale by defendant of Real Silk Hosiery in private residences within said City of Montrose, Colorado, without request or invitation of the people occupying said residences. No notice of any kind warning solicitors not to call on or solicit were posted or displayed on any of said residences. Defendant was not discourteous and in so soliciting said orders did not act in a manner offensive to the residents so solicited.

'Defendant while so acting as aforesaid was solicitor for the Real Silk Hosiery Mills, Incorporated, of Indianapolis, State of Indiana, a foreign corporation in the State of Colorado, and was attempting to take orders for silk hose and merchandise manufactured by said corporation. If and when said orders were received from the residents so solicited the habit, custom and duty of defendant was to forward said orders to Indianapolis where the same were filled and shipped to the address of the person whose name was signed to said order.

'It is hereby further agreed that defendant and Mrs. C. L. Walker and other persons who are owners or occupants of private residences in the City of Montrose, Colorado, would testify to the foregoing if placed upon the witness stand to testify in this cause.

'That upon complaint of Mrs. C. L. Walker and other owners or occupants of private residences in the City of Montrose, Colorado, a complaint was filed with the police magistrate of the City of Montrose, Colorado. * * *

'That the police magistrate did thereafter issue his warrant [set forth in full in the stipulation].

'That thereafter the said Leo W. McCormick was apprehended * * * that said Leo W. McCormick pleaded not guilty * * * and upon being found guilty * * * was fined in the amount of Fifty Dollars ($50.00). Appeal bond was fixed in the amount of one hundred fifty dollars ($150.00).

'The purpose of this stipulation is to record an agreed statement of facts, * * * and it is agreed that this stipulation, together with a certified copy of the City Ordinance mentioned in the complaint and warrant together with the transcript from the magistrate court and the complaint and warrant in this matter, are hereby submitted to the Court to which this cause has been appealed by the defendant, as and for evidence in this cause and further, to permit the Court having jurisdiction of the trial of this cause to determine from such stipulation, ordinance, transcript, complaint, and warrant whether or not the said ordinance, so far as applicable to the foregoing facts is constitutional.'

The mentioned ordinance in so far as material to a determination of the matters here presented is as follows:

'Section 1. The practice of going in and upon private residences in the City of Montrose, Colorado, by solicitors, peddlers, hawkers, itinerant merchants, and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residence, for the purpose of soliciting orders for the sale of goods, wares, and merchandise, or for the purpose of disposing of or peddling or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as a misdemeanor.

'Section 2. The Police of the City of Montrose, Colorado, are hereby required and directed to suppress the same and to abate such nuisance as it is described in the first section of this ordinance.

'Section 3. Any person convicted of perpetrating a nuisance as described and prohibited in the first section of this ordinance upon conviction thereof, shall be punished by a fine in the sum of not more than $100.00 or by imprisonment in the City Jail for a period of not more than ninety days.'

Defendant in his brief sets forth the issues involved in the case as follows:

'I. There could be no violation of the ordinance if there was an implied invitation to the solicitor; and the court was in error in not holding that the facts Before it showed such an implied invitation and in not admitting additional evidence offered to show such implied invitation.

'II. The City of Montrose did not possess the power to enact the ordinance.

'III. The ordinance, even if it were otherwise valid, cannot constitutionally apply to the transactions of the plaintiff in error, which were in interstate commerce.

'IV. The ordinance is unreasonable and therefore void.

'V. The ordinance does not constitute a valid exercise of the police power and violates the Fourteenth Amendment to the Constitution of the United States and the Bill of Rights of the Constitution of Colorado.'

These issues are raised by sufficient assignments of error and in its brief the city joins issue on each and every specified proposition. We shall accept the statement of the issues thus agreed upon by the parties as an outline for the announcement of the principles of law that in our opinion govern in this case.

The first proposition advanced, namely, that there was an implied request or invitation which takes the case out of the ordinance, is not tenable. The stipulated facts do not support the argument presented to sustain defendant's position. If under the ordinance, as defendant contends, either an express or an implied invitation is sufficient to relieve the solicitor from a penalty, the stipulation 'that the defendant * * * did on or about the 8th day of June, A.D. 1938 within the City of Montrose * * * solicit orders for the sale by defendant of Real Silk hosiery in private residences within the City of Montrose * * * without request or invitation of the people occupying said residences' is sufficiently broad to negative either express or implied invitation. Defendant, after becoming a party to such stipulation, offered to prove that the Real Silk Hosiery Mills, his employer, 'has been doing business in the City of Montrose for more than ten years last past and in a similar manner for which the defendant was arrested.' Defendant was arrested under a warrant issued on a complaint charging him with the practice of soliciting in private residences without having been requested or invited so to do by the owners or occupants thereof. It appears that the ordinance was passed in November, 1937, and the complaint was filed in June, 1938. The ordinance was passed as a police regulation. It announced the public policy of Montrose to be to penalize soliciting in residences unless in response to request or invitation of the owners or occupants thereof. What defendant's employer, the Real Silk Hosiery Mills, had done lawfully as a practice Before the ordinance was passed could not be construed as an implied request or invitation by the householders to continue such practice after they, through their city council, had passed an ordinance penalizing the practice. If solicitation had been carried on by defendant, or by the company through other agents, after the ordinance was passed without first securing a request or invitation, this was purely by sufferance of those who might have enforced it, and created no right in defendant or the company to continue to violate its provisions with impunity until notified that they might no longer do so. Colby v. Board of Adjustment, 81 Colo. 344, 255 P. 443. We hold, therefore, that it was not error for the county court to reject defendant's offered evidence.

The second proposition advanced by defendant is that the city of Montrose did not possess the power to enact the ordinance. Under this may be included logically defendant's fourth and fifth propositions, which are, that the ordinance is unreasonable and therefore void, and that it violates the Fourteenth Amendment of the Constitution of the United States, U.S. C.A., and the Bill of Rights of the Constitution of Colorado, in that it prevents defendant from engaging in a legitimate business and amounts to a taking of property without due process of law. If either of these two latter contentions is sound, that negatives the power of the city to pass the ordinance. The three issues, therefore, will be herein considered under the principal proposition which raises the question of the city's power to enact the ordinance.

Montrose is a home rule city with all the authority vested in such cities by article XX of the...