Real Silk Hosiery Mills, Inc. v. City of Portland

• Decision Date: 21 April 1924
• Docket Number: 4176.
• Citation: 297 F. 897
• Parties: REAL SILK HOSIERY MILLS, Inc., v. CITY OF PORTLAND et al.
• Court: U.S. Court of Appeals — Ninth Circuit

297 F. 897

REAL SILK HOSIERY MILLS, Inc., v. CITY OF PORTLAND et al.

No. 4176.

United States Court of Appeals, Ninth Circuit.

April 21, 1924

Dolph Mallory, Simon & Gearin and Edgar Freed, all of Portland Or., and Bamberger & Feibleman, of Indianapolis, Ind., for appellant.

Frank S. Grant and Robert A. Imlay, both of Portland, Or., for appellees.

Before HUNT, MORROW, and RUDKIN, Circuit Judges.

MORROW Circuit Judge.

Plaintiff brought suit in the lower court to enjoin defendant from enforcing, as against the plaintiff's solicitors Ordinance No. 40468 of the city of Portland, as amended by Ordinance No. 42886, defining solicitors and requiring them to obtain a license and give a bond. Decree dismissing plaintiff's bill of complaint. Plaintiff appeals to this court.

It appears from the bill of complaint that Ordinance No. 40468 passed by the city council on December 21, 1921, is the general license ordinance of the city of Portland, relating to the regulation and licensing of numerous businesses and occupations. Ordinance No. 42886, passed on May 16, 1923, is an amendment added to Ordinance No. 40468. The amendment is known as article XLV 1/2. In section 1 a solicitor is defined as:

'Any person who goes from house to house, or from place to place in the city of Portland, selling or taking orders for, or offering to sell or take orders for goods, wares or merchandise or any article for future delivery, or for services to be performed in the future, or for the making, manufacturing or repairing of any article or thing whatsoever for future delivery, provided, however, that this article shall apply only to solicitors who demand, accept or receive payment or deposit of money in advance of final delivery.'

In section 2 it is provided that:

'It shall be unlawful for any person to act as a solicitor within the meaning and application of this article without first securing a license from the bureau of licenses so to do.'

In section 3 it is provided:

'Any person desiring a license to engage as a solicitor within the city of Portland shall make application therefor to the bureau of licenses, on forms to be provided, stating the name and address of the applicant, the name and address of the person, firm or corporation which he represents, and the kind of goods offered for sale, or the kind of services to be performed. Such application shall be accompanied by a bond in the penal sum of $500.00 executed by a surety company or by two responsible freeholders residing in the city of Portland (or in lieu thereof a cash bond of equal amount), conditioned upon the making of final delivery of the goods ordered, or services to be performed, in accordance with the terms of such order, or failing therein, that the advance payment on such order be refunded. Any person aggrieved by the action of any such solicitor shall have a right of action on the bond for the recovery of money or damages, or both.'

Ordinance No. 40468 was further amended so as to provide a license tax for a 'solicitor,' defined as 'one who demands, receives, or accepts payment or deposit in advance of final delivery,' for--

"Those on foot ........... Quarterly.. $12.50

Monthly .. 5.00

Those useing a vehicle .. Quarterly.. $25.00

Monthly .. 10.00"

It was further provided that:

'Inasmuch as this ordinance is necessary for the immediate preservation of the public health, peace and safety of the city of Portland in this: That a condition now exists whereby in the past frauds have been perpetrated upon the public by certain solicitors, and which condition requires immediate remedy, therefore an emergency is hereby declared to exist and this ordinance shall be in force and effect from and after its passage by the council.'

Plaintiff alleges in its complaint: That it is a corporation organized and existing under the laws of the state of Illinois, and a citizen of the state of Illinois. That its principal place of business is at the city of Indianapolis, Ind., where its goods are manufactured and prepared for shipment. In states where plaintiff does business it establishes a business office known as district sales manager's office, where orders are received from solicitors and forwarded to the main office of the company at Indianapolis, Ind. That plaintiff employs solicitors to go out and solicit orders for its hosiery, and when such orders are received they are accompanied by a small cash payment, differing in amount according to the character, quality, and quantity of the hosiery order. That the deposit made by the purchaser is retained by the solicitor as payment for his services in full and is his sole compensation. That the system adopted by plaintiff, and under which it carries on its business by having its solicitors accept a small cash payment with all orders, which cash payment is to be in full compensation for their services, enables plaintiff to sell to its customers throughout the country at practically factory cost, and is for the benefit of the customers, and eliminates unnecessary and burdensome cost, expense, and commissions between factory and customer. That upon receiving an order the solicitor returns the same to the district sales manager, who in turn forwards it to the home office at Indianapolis. The order is filled in Indianapolis and shipped by parcel post C.O.D. direct to the purchaser. In no instance do goods go to the district sales manager's office, or otherwise than through parcel post C.O.D. direct to the purchaser.

Plaintiff alleges that the enforcement of this ordinance will (1) abridge the privileges and immunities of the plaintiff; (2) deprive plaintiff of liberty and property without due process of law; (3) deny to plaintiff the equal protection of the laws; (4) unlawfully interfere with and burden interstate commerce; and (5) that the license tax it imposes is unreasonable, exorbitant, discriminating, and prohibitory.

The privileges and immunities claimed by plaintiff pertain to its business of shipping its manufactured product in interstate commerce from Indianapolis, Ind., to purchasers at various points in the United States, particularly in this case to purchasers in Portland, Or., where its solicitors encounter the ordinance under consideration, imposing a license tax on solicitors and requiring them to give a bond conditioned for the making of final delivery of the goods ordered in accordance with the form of such order, or, failing therein, that the advance payment on such order be refunded.

Defendants concede that the city of Portland has no power to directly regulate, prohibit, or burden interstate commerce, or rights flowing proximately therefrom; but it is contended that the city may enact an ordinance, under its reserve police power, which will be valid although it may indirectly affect interstate commerce, and that the ordinance in question is such an ordinance.

What limitation there is to the local police power, when challenged as encountering the higher guaranties of the federal Constitution, has been a subject of much discussion, and the cases involving the question are numerous. In Barbier v. Connolly, 113 U.S. 27, 31, 5 Sup.Ct. 357, 359 (28 L.Ed. 923) Mr. Justice Field, speaking for the Supreme Court of the United States, said:

'But neither the amendment (the Fourteenth Amendment), broad and comprehensive as it is, nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.' In Sligh v. Kirkwood, 237 U.S. 52, 58, 35 Sup.Ct. 501, 502 (59 L.Ed. 835), the Supreme Court said:

'The limitations upon the police power are hard to define, and its farreaching scope has been recognized in many decisions of this court. At an early day it was held to embrace every law or statute which concerns the whole or any part of the people, whether it related to their rights or duties, whether it respected them as men or citizens of the state, whether in their public or private relations, whether it related to the rights of persons or property of the public or any individual within the state. New York v. Miln, 11 Pet. 102, 139. The police power, in its broadest sense, includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U.S. 27. It is not subject to definite limitations, but is coextensive with the necessities of the case and the safeguards of public interest. Camfield v. United States, 167 U.S. 518, 524. It embraces regulations designed to promote public convenience or the general prosperity or welfare, as well as those specifically intended to promote the public safety or the public health. Chicago, etc., Railway v. Drainage Commissioners, 200 U.S. 561, 592. In one of the latest utterances of this court upon the subject, it was said: 'Whether it is a valid exercise of the police power is a question in the case, and that power we have defined, as far as it is capable of being defined by general words, a number of times. It is not susceptible of circumstantial precision. It extends, we have said, not only to regulations which promote the public health, morals, and safety, but to those which promote the public convenience or the general prosperity. * * * And further, 'It is the most essential of powers, at times the most insistent, and always one of the least limitable of the powers of government." Eubank v. Richmond, 226 U.S. 137, 142.'

The purpose of the ordinance under consideration, as alleged in the complaint, is to license and regulate the business of solicitors who go from house...