Slater v. Salt Lake City

• Decision Date: 14 May 1949
• Docket Number: 7222
• Citation: 115 Utah 476,206 P.2d 153
• Court: Utah Supreme Court
• Parties: SLATER v. SALT LAKE CITY et al

206 P.2d 153

115 Utah 476

SLATER v. SALT LAKE CITY et al

No. 7222

Supreme Court of Utah

May 14, 1949

Appeal from District Court, Third District, Salt Lake County; A H. Ellett, Judge.

Action by Ralph D. Slater, doing business as International Publishers Service, against Salt Lake City and the Chief of Police thereof, to declare a city ordinance prohibiting sale of magazine subscriptions in the business district of such city unconstitutional, and enjoin enforcement thereof. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Robert S. Richards and T. Q. Cannon, both of Salt Lake City, for appellant.

E R. Christensen, Homer Holmgren and A. Pratt Kesler, all of Salt Lake City, for respondent.

Latimer, Justice. Pratt, C. J., and Wade, McDonough, JJ., concur. Wolfe, Justice (concurring).

OPINION

Latimer, Justice.

Appeal from a judgment of dismissal founded on a ruling of the district court sustaining respondents' general demurrer to appellant's complaint for failure to state a cause of action.

In view of the fact that the case was decided on demurrer, we are required to accept the allegations of fact in the complaint as being true. From these allegations it appears that appellant represents certain publishing companies in several states and transacts business under the name and style of International Publishers Service. He carries on his business from Los Angeles, California, by sending his agents into this and various other states to solicit subscriptions to certain national publications. In the Salt Lake City area his agents were operating upon the public streets and sidewalks in the business district and in areas such as doorways and entranceways immediately abutting thereon. As pedestrians walked along the sidewalk or entered entrances into buildings, they were approached by salesmen of appellant and requested to purchase a subscription to one of the magazines. If the prospective customer indicated an unwillingness to converse with the solicitor, according to the allegations of the complaint, the matter was pressed no further and each went on his way. If a person approached indicated a willingness to listen to the solicitor's sales message, the agent suggested that they move to the edge of the sidewalk or against the building to clear the sidewalk for pedestrian traffic. The selling activities of appellant's agents were limited to soliciting subscriptions to magazines for future delivery and the magazines were not sold directly to the passerby. Salt Lake City enacted a certain ordinance permitting the sale of articles in the residential districts of the city but prohibited their sale within the area generally classified as the business district. Selling of subscriptions to magazines was one of the activities prohibited in the business district and appellant's agents, in violation of the ordinance, carried on their sales campaign in the prohibited area. The Salt Lake City Police in attempting to prevent appellant's agents from operating contrary to the provisions of the ordinance arrested certain of the agents while they were carrying on their activities. The police department threatened to continue its efforts to prevent appellant's agents from selling in the manner alleged and to escape further prosecution appellant commenced this action in the court below to have the ordinance declared invalid and unconstitutional. As part of the relief requested, he sought to enjoin the Salt Lake City officers from enforcing the ordinance.

This appeal is brought for the purpose of seeking a reversal of the holding of the trial court by which it refused to enjoin the officers from interfering with appellant's activities.

The ordinance involved in this proceeding is Section 3652 of the Revised Ordinances of Salt Lake City, Utah. The part particularly called to our attention by the allegations of the complaint, is as follows:

"'It shall be unlawful for any person to peddle or offer for sale, barter or exchange at retail, any garden or farm produce, fruits, butter, eggs, poultry, fish, game or any other goods, wares or merchandise whatsoever, or a [sic] any tickets, coupons or receipts representing value or redeemable in service, photographs, works of art, magazine subscriptions, goods or merchandise whatsoever, in, upon or along any street of Salt Lake City without first obtaining a license so to do.

"'It shall be unlawful for any person, under any circumstances, to peddle, sell or offer for sale any magazine subscriptions, goods, wares or merchandise whatsoever, in, upon or along any of the following streets, to wit:

"'South Temple street from Second East street to First West street; First South street from Second East street to First West street; Second South street from Second East street to First West street; Third South street from Second East street to First West street; Fourth South street from Second East street to First West street; State street from First North street to Fifth South street; Main street from First North street to Fifth South street; and no license shall be granted to any person to peddle in, upon or along the said streets above described * * *.'

"Violations of said ordinance are made punishable by arrest and imprisonment, under provisions of section 3718 of the said Revised Ordinances of Salt Lake City, Utah."

Appellant's argument in support of his assertion that the ordinance is unconstitutional is advanced under four separate propositions. That the ordinance herein involved is unconstitutional because (1) it imposes a burden upon interstate commerce; (2) it is an infringement on the right of free speech; (3) it is void because of being arbitrary, capricious and not founded on a reasonable classification; and (4) assuming the ordinance to be valid, then by the discriminating enforcement appellant is denied equal protection of the law.

The first contention made by appellant must be overruled. It is not every incidental interference with interstate commerce that gives rise to a claim of unconstitutionality. Matters which are largely local in character can be dealt with by the state, even though the regulations, in some degree, interfere with the free flow of commerce between the states. The ordinance does not provide for an absolute prohibition of the sale of magazines -- it merely provides for regulation. It permits the sale in certain portions of the city but prohibits their sale upon the streets in the congested business district. It has for its purpose the retention of the sidewalks for the use intended and deals with a local matter largely within the concern of those charged with running the affairs of Salt Lake City. The right to regulate traffic on streets and sidewalks is within the powers delegated to the city by this state and reasonable restrictions in no way offend against the Commerce Clause. Controlling traffic on the city streets does not materially obstruct the free flow of commerce and if, perchance, the burden is increased the amount of increase is inconsequential.

The United States Supreme Court in the case of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 932, 85 L.Ed. 1219, disposes of a similar contention in the following language:

"As this Court has often had occasion to point out, the Commerce Clause, in conferring on Congress power to regulate commerce, did not wholly withdraw from the states the power to regulate matters of local concern with respect to which Congress has not exercised its power, even though the regulation affects interstate commerce. Ever since Willson v. Black Bird Creek Marsh Co., 27 U.S. 245, 2 Pet. 245, 7 L.Ed. 412, and Cooley v. Board of Wardens, 53 U.S. 299, 12 How. 299, 13 L.Ed. 996, it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce, but which because of their local character and their number and diversity may never be adequately dealt with by Congress. Because of their local character, also, there is wide scope for local regulation without impairing the uniformity of control of the national commerce in matters of national concern and without materially obstructing the free flow of commerce which were the principal objects sought to be secured by the Commerce Clause. Notwithstanding the Commerce Clause, such regulation in the absence of Congressional action has, for the most part, been left to the states by the decisions of this Court, subject only to other applicable constitutional restraints. See cases collected in DiSanto v. Pennsylvania, supra, 273 U.S. [34], 40, 47 S.Ct. [267], 269, 71 L.Ed. 524 [528]."

In a very recent case the United States Supreme Court in Railway Express Agency, Inc., et al. v. People of New York, 336 U.S. 106, 69 S.Ct. 463, 466, 93 L.Ed. 533, reaffirmed the rule in the following language:

"It is finally contended that the regulation is a burden on interstate commerce in violation of Art. I, § 8 of the Constitution. Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce. The case in that posture is controlled by South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 187 et seq., 58 S.Ct. 510, 514, 82 L.Ed. 734. And see Maurer v. Hamilton, 309 U.S. 598, 60 S.Ct. 726, 84 L.Ed. 969, 135 A. L. R. 1347."

Paraphrasing the wording of the latter case, where pedestrian control and the use of sidewalks are involved and where there is no conflicting federal regulation, great leeway is allowed local...