Town of Green River v. Bunger

• Citation: 58 P.2d 456,50 Wyo. 52
• Decision Date: 09 June 1936
• Docket Number: 1922
• Parties: TOWN OF GREEN RIVER v. BUNGER
• Court: Wyoming Supreme Court

58 P.2d 456

50 Wyo. 52

TOWN OF GREEN RIVER v. BUNGER

No. 1922

Supreme Court of Wyoming

June 9, 1936

Rehearing denied October 20, 1936.

APPEAL from the District Court, Sweetwater County; REUEL WALTON Judge.

J. L Bunger was convicted of a violation of an ordinance of the town of Green River, Wyoming, declaring it to be a misdemeanor to call on occupants of private residences to solicit orders for sale of goods and he appeals.

Judgment affirmed.

For the defendant and appellant there was a brief by Ellery, Hunter & Ferrall of Cheyenne, and Lewis H. Brown of Rock Springs, and oral argument by C. R. Ellery and Bard Ferrall.

The judgment below is not sustained by sufficient evidence. The ordinance is penal in character and must be strictly construed. Sloss-Sheffield Steel Company v. Smith, 57 So. 29; End. on Interp. of Statutes, Sec. 329, p. 454; 2 Lewis, Suth. St. Const., Secs 520-7; 43 C. J. 573; State v. Dauben, 124 N.E. 232-233; State v. Southern R. Co., (N. C.) 82 S.E. 963; City of Louisiana v. Bottoms, (Mo.) 300 S.W. 316-7; Ex parte Westellison, (Okla.) 259 P. 873; Town v. Ziller, (Miss.) 118 So. 293; Hogan v. Fleming, (Mo.) 297 S.W. 404-412; State v. Prather, (Kan.) 100 P. 57; Perrine Terrace Land Company v. Brennan, 128 A. 786; Murphy v. Transit Company, (Pa.) 132 A. 194; Real Silk Hosiery Mills v. City of Richmond, (D. C. Cal.) 298 F. 126; Sieroty v. City of Huntington Park, 295 P. 564; Cosgrove v. City Council, (Ga.) 31 S.E. 445; Restatement of the Law of Torts, Section 200. The ordinance is in contravention of interstate commerce and is void. Article I, Section 8, Const. U.S., Real Silk Hosiery Mills v. City, (D. C. Cal.) 298 F. 126; Real Silk Mills v. City of Portland, 268 U.S. 325; Pictorial Review Company v. City, 46 F.2d 337; Robbins v. Taxing District, 120 U.S. 489; Myers v. City, (Fla.) 131 So. 375; 31 Mich. Law Review, p. 539; 57 C. J. 282; Kendrick v. Healy, (Wyo.) 192 P. 601. The solicitation of invitations to do business is an ordinary, usual and lawful method of doing business, and cannot be prohibited by police power, except as to householders who have indicated that such solicitation is not allowed. Robbins v. Taxing District, supra; Lawton v. Steele, 152 U.S. 133; Lochner v. New York, 198 U.S. 45; Yee Gee v. City, 235 F. 757; Lumber Company v. Johnston, 54 So. 598; Humes v. City of Little Rock, 138 F. 929; City v. Shultz, (Ill.) 173 N.E. 276; Inglis v. Rymer, (Fla.) 152 So. 4; Ex Parte Smythe, (Tex.) 28 S.W.2d 161; People v. Armstrong, (Mich.) 41 N.W. 275; In Re Webb, (Okla.) 1 P.2d 416; Real Silk Mills v. City of Bellingham, (Wash.) 1 F.2d 934; Condon v. Village, (Ill.) 115 N.E. 825; Miller v. City, (S. C.) 132 S.E. 591; Refining Company v. Commonwealth, (Ky.) 232 S.W. 421; State v. Rodgers, (N. J.) 102 A. 433; Phillips v. Donaldson, (Pa.) 112 A. 236; State v. Ringold, (Ore.) 202 P. 734; People v. Development Company, 115 N.Y.S. 297; Daurizio v. Transp. Company, 274 N.Y.S. 174; Dow v. Town, (Miss.) 152 So. 474; 46 C. J. 646; Cosgrove v. City Council, 31 S.E. 445; Wolff Packing Company v. Court of Industrial Relations, 262 U.S. 522.

For the respondent there was a brief and the cause was argued orally by T. S. Taliaferro, Jr., and A. L. Taliaferro, both of Rock Springs.

The wrong prohibited by the ordinance is as old as Anglo-Saxon law. Every man's home is his castle, into which, without his consent, the king may not enter. III Blackstone, Chapter 12; Sec. 49-191, R. S. We have carefully read the authorities cited by appellant and find nothing even remotely affecting the issues in this case. Defendant was convicted under the ordinance for handing to persons passing along the street a card inviting them to call at the Y. M. C. A. building. People v. Armstrong, (Mich.) 41 N.W. 275. It was for the purpose of soliciting sales that appellant trespassed upon the private residences. Defendant called and requested an invitation to call again for purposes of demonstrating his goods. That fact was established by the testimony of numerous witnesses. It was a trespass upon private property in the first instance, something forbidden by the ordinance. Green River v. Brush Company, 65 F.2d 112; 38 Cyc. 995; Markham v. Brown, (Ga.) 92 Am. Dec. 73. The gravamen of the ordinance is the trespass and nuisance resulting from the making of a private home, the mart where solicitors and peddlers may sell. State v. Hand, (N. J.) 58 A. 641. The purpose of the appellant was to evade the object and purpose of the ordinance. U.S. v. Koenig, (Mich.) 70 L.Ed. 709. No case can be found that has ever gone to the extent of granting immunity to those who carry on interstate commerce from the operation or effect of reasonable police regulations. The principle is well illustrated in U.S. v. Morris, 10 U.S. Law Ed. 474; Real Silk Mills v. City of Richmond, 298 F. 126. An ordinance similar to the one involved here was approved in Seiroty v. City of Huntington, 295 P. 564; Cosgrove v. City Council, 31 S.E. 445; Saxton v. Peoria, 75 Ill.App. 397; City v. Cook, 4 Neb. 103; 17 C. J. 475. The carrying on of private business of great commercial houses by uninvited solicitation is a trespass and nuisance. Green River v. Fuller Brush Company, supra. The above rule is now res judicata upon the interstate commerce phase of this ordinance. In fact, it was there held that the ordinance in no way affects interstate commerce, or conflicts with any federal statute relating thereto. The principle was sustained in Goodrich v. Busse, 93 N.E. 292. Penal ordinances should be strictly construed. Murphy v. Philadelphia Company, 132 A. 194.

KIMBALL, Chief Justice. BLUME and RINER, JJ., concur.

OPINION

KIMBALL, Chief Justice.

The defendant appeals from a judgment finding him guilty of violating an ordinance of the Town of Green River. The material parts of the ordinance are copied below:

Section 1. "The practice of going in and upon private residences, in the Town of Green River, Wyoming, 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 to be a nuisance, and punishable as such as a misdemeanor.

* * * *

Section 3. "Any person convicted of perpetrating a nuisance, as described and prohibited in the first section of this ordinance, upon conviction thereof shall be fined in a sum not less than Twenty-five ($ 25.00) Dollars or more than One Hundred ($ 100.00) Dollars together with costs of proceedings, which said fine may be satisfied if not paid in case by execution against the person of anyone convicted of committing the misdemeanor as herein prohibited."

Defendant is an employee of the Fuller Brush Company, engaged in the manufacture and sale of brushes. The brushes are manufactured in Connecticut and sold directly to consumers throughout the United States. Sales are made on orders obtained by house to house solicitation by employees, including defendant, who send the orders to a distributing station from which the goods are shipped for delivery to the purchaser. Shipments to fill orders obtained in Wyoming are interstate.

Soon after the ordinance was passed, it was attacked in the Federal courts in an action brought by the Fuller Brush Company who contended that the ordinance was an arbitrary and unreasonable regulation of a lawful business, and invalid as opposed to the due process, equal protection and commerce clauses of the Federal constitution. In the Federal District Court (Fuller Brush Co. v. Town of Green River, 60 F.2d 613), the ordinance was declared invalid, and its enforcement enjoined. On appeal to the Circuit Court of Appeals (Town of Green River v. Fuller Brush Co., 65 F.2d 112; 88 A. L. R. 177), the ordinance was upheld as a valid regulation under the police power and as not offensive to any of the invoked provisions of the Federal Constitution. These cases attracted much comment. See 6 Rocky Mountain L. R. 85; 31 Mich. L. R. 539; 19 Iowa L. J. 375; 18 Minn. L. R. 475; 12 Ore. L. R. 155; 13 Boston U. L. R. 98; 46 Harvard L. R. 154; 81 U. of Pa. L. R. 331.

In the fall of 1933, after the decision by Circuit Court of Appeals the Fuller Brush Company instructed defendant to continue to make house to house calls in Green River, in the interests of the company, but the manner of approach, as described in the Federal case, was changed for the evident purpose of evading the ordinance. When in response to the ring or knock of the defendant some one appeared at the door, defendant would say that he was the authorized representative of the Fuller Brush Company and was in town calling on customers of the company; that because of an ordinance of the town he was not permitted to call with his brushes to demonstrate unless requested or invited to do so; that he would call later for that purpose, if given an invitation. He would then ask for an invitation, and exhibit a card to be signed. The card, above the place for signature, recites: "To the Fuller Brush Company: I hereby request your representative to call and demonstrate your brushes from time to time when he is in town. I am under no obligation to buy." Some time during the conversation the defendant would say that the signing of the card would entitle the signer to a brush as a gift when the defendant returned to show and demonstrate his goods. There was evidence that the defendant called at private residences in Green River, not having been requested or invited so to do by the owners or occupants, and in the manner above outlined solicited invitations...