Nippert v. City Of Richmond

• Decision Date: 05 March 1945
• Citation: 183 Va. 689,33 S.E.2d. 206
• Parties: NIPPERT. v. CITY OF RICHMOND.
• Court: Virginia Supreme Court

33 S.E.2d. 206

183 Va. 689

NIPPERT.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

March 5, 1945.

Error from Hustings Court of City of Richmond; John H. Ingram, Judge.

Dorothy Nippert was convicted of violating an ordinance of the City of Richmond which prohibited the operation of business of solicitor without procuring a city license, and she brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, BROWNING, EGGLES-TON, and SPRATLEY, JJ.

Cornelius H. Doherty, of Clarendon, for plaintiff in error.

Horace H. Edwards and Henry R. Miller, Jr., both of Richmond, for defendant in error.

CAMPBELL, Chief Justice.

The litigants agree that in the case at bar the principal question is whether the ordinance of the city of Richmond, under which the defendant, Dorothy Nippert, was convicted, is violative of the Federal Constitution. That ordinance reads:

"Chapter 10, Section 23.--Agents--Solicitors--Persons, Firms or Corporations engaged in business as solicitors * * * $50.00 and one-half of one per centum of the gross earnings, receipts, fees or commissions for the preceding license year in excess of $1,000.00. Permit of Director of Public Safety required before license will be issued. (December 15, 1933)"

The defendant was arraigned in the Hustings Court of the city of Richmond upon a warrant emanating from the police justice's court, which charged "that on the 20th day of January, 1944, at said city of Richmond Dorothy Nippert did unlawfully engage in Richmond in a business of a solicitor without having procured a city license assessable under section 23 of chapter 10 of the Richmond City Code of 1937."

Defendant, upon her arraignment, pleaded not guilty, and with her consent and the concurrence of the city attorney, the court proceeded to hear and determine the case without a jury. At the conclusion of the evidence, the court found the defendant guilty as charged in the warrant and assessed her fine at $5.

The facts certified by the trial judge are as follows:

"The American Garment Company, which is owned and operated by John V. Rosser, with its main office at 3617 12th Street, N. E., Washington, D. C, is engaged in the manufacture and sale of certain ladies' garments. The American Garment Company employs solicitors who travel from city to city throughout the country and obtain orders for this particular garment, which is sold for $2.98, and the solicitor receives from the purchaser a down payment usually sufficient to pay the commission of the solicitor, and the order is then sent to the home office of the American Garment Company and the garment is then sent through the United States mails C. O. D. for the balance to the purchaser. The solicitors at no time make a delivery of the article.

"The defendant herein was not and is not carried on the rolls of the American Garment Company as an employee and her, sole compensation is the commission received from the sale of each article.

"The defendant, Dorothy Nippert, on January 20, 1944, was soliciting orders for the American Garment Company, as above set forth, in the City of Richmond, and that Dorothy Nippert had been engaged for four days prior to January 20, 1944, in going from place to place in the City of Richmond and in soliciting orders for the sale of merchandise on behalf of the American Garment Company and had, during that time, been engaged in going from place to place within the places of business of Miller & Rhoads, Incorporated, a large department store in the City of Richmond and within the place of business of one of the Five and Ten Cent Stores in the City of Richmond, and therein soliciting the Clerks in those stores so as to procure from those Clerks orders for the sale of merchandise on behalf of the American Garment Company, and that such solicitation occurred on the 20th of January, 1944, and that she, the said Dorothy Nippert had not therefore procured a City revenue license from the City of Richmond."

The dominant assignment of error is:

"The Court erred in refusing to hold that the ordinance, in so far as it referred to petitioner, was in conflict with the commerce clause of the Federal Constitution."

Article 1, section 8, clause 3, of the United States Constitution reads:

"The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Counsel for defendant rely upon Rob-bins v. Taxing Dist. of Shelby County, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694, to sustain the contention that the ordinance is violative of the commerce clause, supra. That case involved a tax upon a "drummer" or "traveling salesman" which is clearly distinguishable from the case...