Prior v. White

• Decision Date: 06 April 1938
• Citation: 180 So. 347,132 Fla. 1
• Parties: PRIOR v. WHITE, Chief of Police.
• Court: Florida Supreme Court

180 So. 347

132 Fla. 1

PRIOR v. WHITE, Chief of Police.

Florida Supreme Court, Division B.

April 6, 1938

Original habeas corpus proceeding by H. (Horace) Prior against J. B White, Chief of Police of the City of New Smyrna Beach Volusia County, Florida.

Petitioner discharged from custody of respondent.

COUNSEL

Green & West and Alfred A. Green, all of Daytona Beach, for petitioner.

Hull Landis & Whitehair and Francis P. Whitehair, all of De Land, for respondent.

OPINION

BROWN Justice.

This case involves the validity of a city ordinance which makes it a punishable offense for a person soliciting orders for the sale of merchandise to be 'in and upon' a private residence in the city, when not requested or invited so to do by the owner or occupant.

H. (Horace) Prior was arrested and convicted in the municipal court of the city of New Smyrna Beach, Fla., on a charge of having violated a municipal ordinance of said city providing as follows:

'Section 1. The practice of being in and upon private residences in the City of New Smyrna, Florida, 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 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, is hereby declared a nuisance and punishable as such nuisance as a misdemeanor.'

Another section provides that a violation of the ordinance shall be punished by fine or imprisonment.

Prior refused to pay the fine imposed on him by the municipal judge and upon being confined in the municipal bastile he filed a petition for writ of habeas corpus in this court, and the writ was granted by one of the Justices of the court. The respondent chief of police filed a return, and the case is now before us, after oral argument and filing of briefs. The main questions affect the sufficiency of the respondent's return to the writ, which return seeks to justify the holding in custody of the petitioner upon the ground that the petitioner had been duly convicted of the violation of a valid ordinance. The petitioner contends that the ordinance is unconstitutional and void, at least in so far as it applies to 'solicitors.' The return attaches thereto and makes a part thereof the affidavit and warrant upon which the petitioner was tried, together with a stenographic report of the testimony.

The affidavit upon which the warrant was issued states that petitioner had violated the ordinance in question, in that he did go uninvited upon the private premises of affiant, viz., the home of affiant within said city, and did then and there solicit an order from the occupant of said home for the sale of merchandise of Fuller Brush Company. Motion to quash the affidavit on account of the invalidity of the ordinance was overruled.

In the prosecution, the city introduced in evidence a copy of the ordinance, and the testimony of Myrtle M. Woodward, upon whose affidavit the warrant was issued. Miss Woodward's statement is, in effect, that on August 9, 1937, petitioner appeared at the door on the porch at her home at 202 South Orange street, in the city of New Smyrna Beach, without invitation from her to come upon her premises or to call at her home for any purpose whatsoever, and stated he was a salesman of the Fuller Brush Company, selling brooms, brushes, and similar articles from house to house. After soliciting an order from her, petitioner showed her various articles he had for sale, quoted the price of such articles, and the chose to purchase two of the articles for which petitioner solicited an order and she agreed to purchase these articles from petitioner as an authorized dealer of Fuller Brush Company.

At the conclusion of this evidence, the city announced it had no further evidence to offer and rested its case.

Thereupon, a motion was made on petitioner's behalf to discharge the defendant, which motion was denied.

In his behalf, petitioner testified, in substance, that he was fifty-three years of age and was living with his wife in New Smyrna Beach on August 9, 1937, when he called at Miss Woodward's home to solicit an order for Fuller Brush Company. He said he went to Miss Woodward's home on August 9, 1937, knocked on the door, and told her, when she came to the door, that he was a Fuller Brush man and had a gift brush he wanted to give her. She came out on the porch; didn't say anything, accepted the brush, and thanked him for it. He gave her one of his folders showing the special article Fuller Brush Company had out for the month and said she was interested in a broom. He showed her the broom and she took it and went into the house and showed it to her maid When she came back, she said she would take the broom and a white palm brush. These brushes were displayed by petitioner from a sample case containing products of the Fuller Brush Company, which he had with him at the time. Miss Woodward paid nothing on account of the brush at the time and delivery thereof was not made. Petitioner gave her a duplicate slip of the order and sent the original by mail to the office of the Fuller Brush Company at Atlanta, Ga., from which he subsequently received the order by truck from Atlanta. On August 16th petitioner delivered to Miss Woodward the broom and the brush and received payment for them. When petitioner called at Miss Woodward's home to solicit the order, he had been with the Fuller Brush Company for some time, and, prior to his obtaining the appointment, had been thoroughly investigated by Fuller Brush Company as to his character and moral fitness for the job of soliciting, and had been trained by Fuller Brush Company for the job of soliciting, and had been trained by Fuller Brush Company so as to know and observe a courteous and gentlemanly manner in soliciting at private homes. When petitioner called at Miss Woodward's home, there was no sign or anything in the yard or on the premises that indicated to him that salesmen or solicitors were not welcome, and Miss Woodward did not tell him he was not welcome or wanted or that she was annoyed by his presence there; in fact, from the reception he received, petitioner felt that he was welcome. Prior to the time petitioner was arrested, he had called at approximately one hundred homes of white people in the city of New Smyrna Beach and solicited sales for the Fuller Brush Company, and had heard or seen nothing that indicated to him that he was not welcome at these homes or that indicated to him that anyone in any one of these homes was annoyed, disturbed, upset, inconvenienced, or bothered in any way by his calls. No products of Fuller Brush Company are stored in the state of Florida for sale, and all orders taken by petitioner were sent by mail to Atlanta and the products ordered were shipped from Atlanta to him by express, mail, or truck, for delivery in the city of New Smyrna Beach.

R. S. Hockett, a witness on behalf of petitioner, testified that he had been a dealer in Fuller Brushes for three years and that the city of New Smyrna had been in his territory from May, 1936, until February, 1937. During that period of time, Hockett had called upon more than five hundred homes of white people in New Smyrna Beach at least twice a year, and sometimes three times a year, and during that time had never seen or heard anything that indicated to him that he was not welcome as a salesman at any of those homes and had not heard or seen anything that indicated to him that his presence in any of those homes, while soliciting sales for Fuller Brush Company, was annoying or disturbing or a nuisance in any was or affected the health and peace and quiet of anyone in the homes. On the premises of none of these homes, or in the yard or on the buildings, did he ever observe anything, written, signed, or otherwise, stating that salesmen or solicitors generally were not admitted or not desired upon the premises. Not one of those home owners on which he called, for solicitation purposes, ever made a complaint to him against his calls or asked him not to call at their homes. Hockett stated it to be his opinion, based upon his experience, that in the sale of products of Fuller Brush Company solicitation at the homes was all-important, in that the products cannot be properly demonstrated in the store, because it is to be used in the home and must be demonstrated there. Hockett stated he had received the same training by Fuller Brush Company, as to the courteous manner to be followed by their salesmen in soliciting sales at private homes, that petitioner had received, and said that all Fuller Brush salesmen were trained to enter a home to be solicited in the same way that the salesman would want anyone else to enter his home and approach his wife, to sell their merchandise.

Both petitioner and Hockett testified they earn their living solely from the sale of the products of Fuller Brush Company. F. J. Havell, branch manager of Fuller Brush Company at Miami, testified that he had supervision over the southeastern half of the state of Florida, including the city of New Smyrna Beach. He substantiated, and amplified, the statements of petitioner and Hockett as to the investigations that were made by Fuller Brush Company of the character reputation and moral fitness of persons before they are appointed to sell the products of Fuller Brush Company and the training, generally, that is given to these men after they are employed. He said he had never received from New Smyrna Beach, during the seven years he had been in charge of that territory, any complaint about the conduct of any Fuller brush dealer in...