Village of Bel-Nor v. Barnett

• Decision Date: 16 July 1962
• Docket Number: No. 49041,BEL-NOR,No. 1,49041,1
• Parties: VILLAGE OF, a Municipal Corporation, Respondent, v. Alan Lewis BARNETT, Appellant
• Court: Missouri Supreme Court

Page 832

358 S.W.2d 832

VILLAGE OF BEL-NOR, a Municipal Corporation, Respondent, v. Alan Lewis BARNETT, Appellant.

No. 49041.

Supreme Court of Missouri, Division No. 1.

July 16, 1962.

Maurice S. Karner, St. Louis, for appellant, Alan Lewis Barnett.

Lester W. Spilker, St. Louis, for respondent.

HOLLINGSWORTH, Judge.

Defendant has appealed from a judgment of the Circuit Court of St. Louis County affirming his conviction in the Chairman's Court of the Village of Bel-Nor, St. Louis County, for violation of Ordinance No. 134 of said village and assessing his fine at $5.00. That ordinance makes it a misdemeanor punishable by fine of not less than $5.00 nor more than $50.00 for any person to conduct 'any solicitation, * * * sales campaign, vending, door to door selling, order taking * * * [involving] use of the street, drives, sidewalks, * * * within the Village of Bel-Nor, or door to door contact with the residents of the Village * * * unless he * * * has first made application for and received a license for such purpose * * *.' The cost of the license is $15.00, irrespective of whether any sale is made, and it expires 90 days after issuance.

Defendant challenges the validity of that ordinance (as to any act done by him) on grounds it violated Article I, Sec. 8, Cl. 3, of the Constitution of the United States, empowering the Congress 'to regulate Commerce * * * among the several States, * * *.' In thus challenging the constitutionality of the ordinance, jurisdiction of the appeal lies in this court. Article V, Sec. 3, Constitution of Missouri, V.A.M.S.

The facts are not in dispute. Defendant, a resident of Newark, New Jersey, is temporarily in the City of St. Louis attending Washington University. On the 24th day of June, 1960, he became a door-to-door solicitor in St. Louis County for Periodical Publishers' Service Bureau, Inc., (hereinafter referred to as 'Periodical'), whose main office and legal residence is and was at the time herein material in Sandusky, Ohio. However, on June 24, 1960, and prior thereto it had maintained a branch office in the City of St. Louis, as it did in numerous cities. Defendant's duties consisted of door-to-door solicitation of subscriptions to magazines for future delivery, many of which were of general circulation throughout the United States, but none of which was published in or delivered from any point in Missouri.

Orders taken by defendant and signed by the subscriber were addressed to Periodical at its home office in Ohio. The magazines ordered and the prices thereof were listed on the face of the order. Each subscription ran for a term of 36 months. The subscriber made a down payment of about three percent of the total of the amount of the subscription price at the time the order was signed and agreed to pay the remainder of the subscription price in 24 monthly installments; nothing was to be paid thereafter. The order was expressly conditioned upon its approval by the home office. When defendant procured such an order, he forwarded it to Periodical's branch office in the City of St. Louis, where it was 'processed', that is, checked for its genuineness and for ascertainment of the subscriber's understanding of its terms. If approved at the branch office, it was forwarded from the branch office to the home office, where it was finally approved or rejected. If approved, Periodical, from its home office, sent an order to the publisher or publishers of the magazines ordered, the price of which Periodical agreed to pay to the publisher in accordance with a prior arrangement made with the publisher. Each publisher thereafter sent directly be mail to the subscriber the magazine or magazines ordered by the subscriber. Periodical thereafter collected the purchase price from the subscriber in accordance with the terms of the subscription. Defendant's compensation for orders taken by him was strictly on a commission basis paid by Periodical through its St. Louis branch office, subject to credit of the down payment made by the subscriber when the order was signed.

On the day of defendant's arrest, he had made several door-to-door solicitations in the Village of Bel-Nor but had not, when arrested, obtained any orders. He had no license and, in fact, had no knowledge of the ordinance until he was so abvised by the arresting officer.

We have been cited to no case nor have we found one that casts any doubt upon the fact that solicitation of orders made under the circumstances here shown constitutes interstate commerce. Many cases, both state and federal, from Missouri and elsewhere, unhesitatingly characterize the facts here shown to constitute interstate commerce and to place an undue burden upon solicitors engaged in interstate commerce and to render invalid ordinances such as the one here challenged under Article I, Sec. 8, Cl. 3, of the Constitution of the United States. Olan Mills, Inc. v. City of Cape Girardeau, 364 Mo. 1089, 272 S.W.2d 244, and the many cases therein cited; Superior Concrete Accessories v. Kemper, Mo., 284 S.W.2d 482; Nippert v. City of Richmond, 327 U.S. 416, 66 S.Ct. 586, 90 L.Ed. 760; Real Silk Hosiery Mills v. City of Portland, 268 U.S. 325, 45 S.Ct. 525, 69 L.Ed. 982; Town of Green River v. Fuller Brush Co., U.S.C.A., 10 Cir., 65 F.2d 112, 88 A.L.R. 177; City of Alexandria v. Breard, 217 La. 820, 47 So.2d 553; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; City of California v. Riback, Mo., 204 S.W. 389; Fleming v. City of Mexico, 262 Mo. 432, 171 S.W. 321; Jewel Tea Co. v. City of Carthage, 257 Mo. 383, 165 S.W. 743.

Despite the facts shown in the instant case and the general unanimity with which the state and federal courts have held facts analogous to those here presented clearly to constitute unconstitutional interference with interstate commerce, plaintiff contends that defendant was not engaged in interstate commerce and insists that he is subject to the licensing ordinance here in question. In support of that contention plaintiff cites City of Eldorado Springs v. Highfill, 268 Mo. 501, 188 S.W. 68; and City of Brookfield v. Kitchen, 163 Mo. 546, 63 S.W. 825, involving licensing ordinances similar to the Bel-Nor ordinance here challenged by defendant. A detailed recital of the facts in those cases would unduly lengthen this opinion. Suffice it to say that the facts there shown are clearly distinguishable from those here shown. In each of those cases it was pointed out that the facts did not constitute interstate commerce. Indeed, in the City of Eldorado Springs case the court precisely pointed out wherein the facts in those cases distinguished them from the cases of Fleming v. City of Mexico, 262 Mo. 432, 171 S.W. 321, and Jewel Tea Co. v. Carthage, 257 Mo. 383, 165 S.W. 743, both of which are above cited and both of which hold that facts analogous to those here shown constitute an unconstitutional interference with interstate commerce.

Plaintiff also cites the case of McGoldrick v. Berwind-White Coal Mining Co., 309 U.S. 33, 60 S.Ct. 388, 84 L.Ed. 565, 128 A.L.R. 576. The facts in that case are extremely lengthy. Suffice it to say that the case involved a New York City uniform tax ordinance to be distinguishable from licensing tax ordinances, such as in this case. The gist of the conclusions there reached was that the New York City sales tax which is conditioned on delivery of goods within the state on their purchase for consumption is conditioned on a local activity which, apart from its effect on interstate commerce, is subject to the state taxing power, and the effect of the tax, though measured by the sales price, does not invalidly discriminate against or obstruct interstate commerce as against contention that, because the tax is measured by gross receipts from interstate commerce, it in effect reaches commerce carried on both within and without New York state. The case is not in point on the question here involved, as has been pointed out in numerous later cases.

Plaintiff also cites cases dealing with city ordinances that have become widely known as 'Green River Ordinances', taking their name from the case in which their validity was first challenged. (We have hereinabove also cited them in support of the conclusion herein reached that the licensing tax here challenged constitutes an unconstitutional interference with interstate commerce under the facts here shown.) Those cases are: Town of Green River V. Fuller Brush Co., U.S.C.A., 10 Cir., 65 F.2d 112, 88 A.L.R. 177; City of Alexandria v. Breard, 218 La. 820, 47 So.2d 553; Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233. (An earlier [1947] case of Breard v. City of Alexandria, D.C., 69 F.Supp. 722, is also cited, but it is to the same effect as the later Breard cases and need not be herein discussed.)

The Town of Green River case originated in the U. S. District Court, 60 F.2d 613. In that court the Fuller Brush Company enjoined the Town of Green River, Wyoming, from...