Phillips v. City of Bend

• Decision Date: 06 July 1951
• Citation: 234 P.2d 572,192 Or. 143
• Parties: PHILLIPS v. CITY OF BEND et al.
• Court: Oregon Supreme Court

Page 572

234 P.2d 572

192 Or. 143

PHILLIPS v. CITY OF BEND et al.

Supreme Court of Oregon, En Banc.

Argued April 3, 1951.

Decided July 6, 1951.

S. J. Bischoff, Portland, argued the cause and filed a brief for appellant.

Ross Farnham, Bend, argued the cause and filed a brief for respondents.

BRAND, Chief Justice.

By this suit the plaintiff seeks to enjoin the City of Bend and its officers from enforcing against the plaintiff and his salesmen the provisions of an enactment by the city of the kind generally known as a 'Green River ordinance' concerning solicitors, peddlers and others. The trial court sustained a demurrer to the complaint. The plaintiff elected to plead no further and the suit was dismissed. Plaintiff appeals. Omitting the title, the relevant provisions of the ordinance are as follows: 'Section 1. The practice of persons of going in and upon private property or calling at residences in the City of Bend, Oregon, by solicitors, peddlers, hawkers, itinerant merchants, transient vendors of merchandise, and transient photograph solicitors, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares, and merchandise and/or for the purpose of disposing of and/or peddling or hawking the same, or soliciting orders for photographs, is hereby prohibited and declared to be a nuisance and punishable as such nuisance as a misdemeanor.

Section 2 imposes upon the police officers the duty of enforcement. Section 3 provides penalties to be imposed upon conviction for violation of the ordinance. Section 4 repeals any conflicting ordinances. Section 5 reads as follows: 'Inasmuch as this ordinance is necessary for the immediate preservation of the public health, peace, and safety of the City of Bend, in this; That the residents and inhabitants of the City of Bend are continuously bothered with agents and peddlers of merchandise; and to eliminate such nuisance it is deemed necessary that an emergency be and the same hereby is declared to exist, and this ordinance shall be in force and effect from and after its passage by the commission and approval by the mayor.'

The complaint alleges that the plaintiff is a citizen of the United States and of the State of Oregon and a resident of the City of Bend. It then recites the corporate capacity of the city, the official capacity of the other defendants and the passage of the ordinance. There are further allegations to the effect that the plaintiff is engaged in the business of selling electric vacuum cleaners and appurtenances in the State of Oregon and the cities thereof, including the City of Bend. Plaintiff makes the sales personally and through salesmen 'who purchase such appliances from plaintiff for resale to owners or occupants of private residences in said areas;' Plaintiff's appliances are useful and his business lucrative. The plaintiff and the said salesmen sell the said household appliances by calling upon owners and occupants of private residences at their places of residence. Requests are made of the owners or occupants of private residences for permission to display the said equipment and to demonstrate the uses to which it can be put. Demonstrations are made and prospective sales discussed only with the owners after permission is requested and granted. The operation is carried on courteously. In the event of a purchase 'delivery is made at said time and place of demonstration or an order is taken for delivery of such equipment and delivery is made thereafter;' Plaintiff alleges: '* * * that the appliance is of such nature and character that it can only be efficiently demonstrated and its usefulness as a time and labor-saving device and as an aid to the owners or occupants of private residences shown by making personal demonstrations thereof in the household by engaging in the actual activity of utilizing the said equipment in the cleaning of carpets, furniture, curtains, clothing and other uses to which the appliance can be put;'

The complaint alleges that the ordinance is null and void for the reasons set forth and if the ordinance is enforced against the plaintiff he will be deprived of property without due process of law. Plaintiff's further conclusions are that the ordinance has no relation to the health, peace or safety of the residents and inhabitants of the city; that it is 'arbitrary and capricious insofar as it prohibits the plaintiff from carrying on the aforesaid business'; that the ordinance violates the First, Fifth and Fourteenth Amendments to the Constitution of the United States and the Constitution of the State of Oregon; that it denies to the plaintiff freedom of speech and equal protection of the laws and: 'discriminates against the plaintiff and in favor of persons engaged in the sale of such merchandise or similar merchandise in that other persons not described in said purported ordinance are permitted to engage in the activities described in the said purported ordinance in that under said purported ordinance, persons who are not solicitors, peddlers, hawkers, itinerant merchants, transient vendors of merchandise are permitted to solicit orders for the sale of goods, wares and merchandise and/or for the purpose of disposing of and/or peddling or hawking the same although they have not been requested or invited to do so by the owner or owners, occupant or occupants of private residences in the City of Bend, State of Oregon.'

Plaintiff denies that his business is a nuisance in fact or in law and finally alleges that he has been prevented from carrying on his business in the City of Bend; that he has been threatened with arrest and is suffering irreparable damage. He seeks a temporary and permanent injunction. The general demurrer was sustained, the case dismissed and plaintiff appeals.

Since this case was argued, the Supreme Court of the United States has upheld the validity of an ordinance which is substantially identical to the enactment of the City of Bend. Most of the contentions which are made by the plaintiff here were considered and rejected. Breard v. City of Alexandria, 71 S.Ct. 920, 923. Breard was arrested: 'while going from door to door in the City of Alexandria, Louisiana, soliciting subscriptions for nationally known magazines. The arrest was solely on the ground that he had violated an ordinance because he had not obtained the prior consent of the owners of the residences solicited. Breard, a resident of Texas, was in charge of a crew of solicitors who go from house to house in the various cities and towns in the area under Breard's management and solicit subscriptions for nationally known magazines and periodicals * * *.'

At the trial for violation of the ordinance, Breard moved to quash the complaint on the ground that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; the Federal Commerce Clause and the guarantees of the First Amendment concerning freedom of speech which are made applicable to the states by the Fourteenth Amendment to the Constitution of the United States. The motion to quash was overruled and the defendant was found guilty and sentenced. The Supreme Court of Louisiana affirmed. 217 La. 820, 47 So.2d 553. On the appeal, the United States Supreme Court first considered the contention that the ordinance was violative of the Due Process Clause. 71 S.Ct. 920, 923. The Court said:

'* * * This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.

'* * * Door-to-door canvassing has flourished increasingly in recent years with the ready market furnished by the rapid concentration of housing. The infrequent and still welcome solicitor to the rural home became to some a recurring nuisance in towns when the visits were multiplied. Unwanted knocks on the door by day or night are a nuisance or worse to peace and quiet. The local retail merchant, too, has not been unmindful of the effective competition furnished by house-to-house selling in many lines. As a matter of business fairness, it may be thought not really sporting to corner the quarry in his home and through his open door put pressure on the prospect to purchase. As the exigencies of trade are not ordinarily expected to have a higher rating constitutionally than the tranquillity of the fireside, responsible municipal officers have sought a way to curb the annoyances while preserving complete freedom for desirable visitors to the homes. The idea of barring classified salesmen from homes by means of notices posted by individual householders was rejected early as less practical than an ordinance regulating solicitors.'

The Court then reviewed the decisions in Town of Green River v. Fuller Brush Co., 10 Cir., 65 F.2d 112, 88 A.L.R. 177, and Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456, in both of which cases the so-called Green River ordinances were upheld. The Court noted the fact that Green River ordinances had been upheld in five states and had been held invalid in eleven states. The Bunger case was appealed to the United States Supreme Court where the appeal was dismissed for want of a substantial federal question by a per curiam opinion. 300 U.S. 638, 57 S.Ct. 510, 81 L.Ed. 854. From the opinion in Breard v. Alexandria we quote:

'The opinions of this Court since this Green River case have not given any ground to argue that the police power of a state over soliciting has constitutional infirmities under the due process principle embodied in the concept of freedom to carry on an inoffensive trade or business. Decisions such as Liebmann and Tanner [244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1136] supra, invalidating legislative action, are hardly in point here. * * * The...