State ex rel. City of South Bend v. Glasby

• Decision Date: 15 October 1908
• Parties: STATE ex rel. CITY OF SOUTH BEND v. GLASBY.
• Court: Washington Supreme Court

97 P. 734

50 Wash. 598

STATE ex rel. CITY OF SOUTH BEND v. GLASBY.

Supreme Court of Washington

October 15, 1908

Appeal from Superior Court, Pacific County; A. E. Rice, Judge.

W. W Glasby was convicted of taking orders for goods without a peddler's license, in violation of an ordinance, and he appeals. Reversed and remanded, with instructions to dismiss.

1. COURTS--UNITED STATES SUPREME COURT--FEDERAL QUESTIONS--REGULATION OF INTERSTATE COMMERCE.

Whether a city ordinance attempts to regulate interstate commerce is a federal question, which is controlled by the decisions of the federal Supreme Court.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 13, Courts, § 329.]

2. COMMERCE--INTERSTATE COMMERCE--SALE OF GOODS BY ORDER--REGULATION BY ORDINANCE.

A city ordinance designated as peddlers persons taking orders within the city for groceries, etc., and imposed a penalty upon such persons for taking orders without paying a license fee. Defendant was convicted of taking orders for teas, etc., without a license, for a firm in another state which had no agency or branch business in the state, defendant taking orders by sample and sending them to his firm, which filled them, by shipping unbroken packages to the buyers in this state, and delivering them by persons other than its solicitors. Held, that the ordinance was a regulation of interstate commerce in violation of U.S. Const. art. 1, § 8, and it was immaterial that it did not discriminate between residents and nonresidents, or that it might have been a valid police regulation as to intrastate sales.

E. B. Dufer, for appellant.

A. J. Allen, for respondent.

HADLEY C.J.

The defendant in this action was convicted, in the police court in the city of South Bend, Wash., of the charge of violating an ordinance of that city concerning the imposition and regulation of licenses. The penalty imposed by the police justice was a fine of $10 and costs. On appeal to the superior court of Pacific county the judgment of the police court was affirmed, and the defendant has appealed to this court.

The cause was tried in the superior court on an agreed statement of facts, the material facts being as hereinafter set forth. Omitting the title and all formal parts, the ordinance in question is as follows:

'Section 1. Every person canvassing or taking orders for pictures, clothes, clothing, groceries or any other merchandise, either for immediate or future delivery, within the city of South Bend, shall be deemed, a peddler, and shall pay a license fee of $10.00 per day.

'Sec. 2. Any peddler who pursues the said calling referred to in section 1 of this ordinance, without having first procured a license therefor, shall be deemed guilty of a misdemeanor and upon conviction thereof, shall pay a fine of not more than fifty dollars together with costs of prosecution.

'Sec. 3. The city clerk is hereby authorized to issue 'peddler's license' upon application, and to collect the aforesaid license fee.

'Sec. 4. Commercial travelers employed by wholesale houses selling at wholesale only, staple articles of merchandise, shall not be deemed peddlers within the meaning of this ordinance. All ordinances or parts of ordinances in conflict herewith are hereby repealed.'

The charge against the appellant was that of peddling without a license in violation of the ordinance. Brettell Bros. are a firm residing in Portland, Or., and having their business in that city and state. They have no agency or branch business within the state of Washington. The firm is engaged in supplying the trade with coffees, teas, spices, and staple groceries upon orders therefor, sent to them at the city of Portland by their traveling agents and solicitors, employed by the firm to canvass for, solicit, and secure orders for their goods. The traveling agents and solicitors do not deliver the goods ordered; they simply secure orders by sample, and send the orders to the firm in Portland. The firm may accept or reject the orders as they choose, and such as they accept are filled, and the goods are shipped and delivered to the respective parties in unbroken packages, by persons other than the traveling agents and solicitors securing the orders. The appellant is a citizen of Oregon, and was in the employ of the firm of Brettell Bros. as a traveling agent and solicitor for orders for their goods, securing such orders by samples, with which appellant was provided by his employers. The appellant never sold or undertook to sell any of his employers' goods further than to secure orders therefor, and to forward such orders to his employers in the city of Portland, Or. He did not in person deliver any of the goods to customers.

Appellant argues that the ordinance in question violates section 8 art. 1, of the Constitution of the United States, with reference to the power of Congress to regulate commerce between the several states. He insists that the case of Bacon v. Locke, 42 Wash. 215, 83 P. 721, is decisive of this case in his favor. We think that case cannot be said to be, in all particulars, decisive of this one. The statute there under consideration provides: 'After shipment to the state,' one who canvasses and sells by sample to consumers certain specified articles of merchandise shall pay in advance a license tax of $200 per year, to be paid in each county where the sales are made. It was held that the clause in the statute 'after shipment to the state' has the effect of discriminating in favor of goods manufactured in this state and against those shipped here from a sister state, for which reason it violates the provisions governing interstate commerce. The decision was apparently rested upon the element of discrimination. That feature is lacking in the case at bar. The ordinance makes no discrimination in favor of residents of this state, but its provisions apply to all, both residents and nonresidents. We must therefore examine as to the status of residents of another state under such an ordinance, in view of their right to protection for the purposes of interstate commerce. If a question of interstate commerce is involved, then manifestly the subject must be controlled by the decisions of the Supreme Court of the United States, as that tribunal is clothed with the power of final interpretation where federal questions are concerned. That a question of interstate commerce is involved seems to be clear from the decision in Robbins v. Shelby County Taxing District, 120 U.S. 489, 7 S.Ct. 592, 30 L.Ed. 694. A statute of Tennessee was there under consideration. It provided that: 'All drummers and all persons not having a regular licensed house of business in the taxing district of Shelby county, offering for sale or selling goods, wares, or merchandise therein by sample, shall be required to pay to the county trustee the sum of $10 per week, or $25 per month, for such privilege.' It was held that the statute applied to persons soliciting the sale of goods on behalf of individuals or firms doing business in another state, and that, so far as it applied to them, it was a regulation of commerce among the states, and violated the Constitution of the United State, which grants to Congress the power to make such regulations. The language of the opinion is strong, clear, and conclusive. We call attention to the entire opinion, and particularly to the following extract, which shows the trend of the reasoning: 'In view of these fundamental principles which are to govern our decision, we may approach the question submitted to us in the present case, and inquire whether it is competent for a state to levy a tax, or impose any other restriction upon the citizens or inhabitants of other states, for selling, or seeking to sell, their goods in such state before they are introduced therein. Do not such restrictions affect the very...