Whipple v. City of S. Milwaukee

• Decision Date: 04 June 1935
• Citation: 261 N.W. 235,218 Wis. 395
• Parties: WHIPPLE ET AL. v. CITY OF SOUTH MILWAUKEE. LAMBRECHT CREAMERY ET AL. v. CITY OF SOUTH MILWAUKEE. OMAR BAKING CO. v. CITY OF SOUTH MILWAUKEE.
• Court: Wisconsin Supreme Court

218 Wis. 395

261 N.W. 235

WHIPPLE ET AL.

v.CITY OF SOUTH MILWAUKEE.

LAMBRECHT CREAMERY ET AL.

v.CITY OF SOUTH MILWAUKEE.

OMAR BAKING CO.

v.CITY OF SOUTH MILWAUKEE.

Supreme Court of Wisconsin.

June 4, 1935.

Appeals from judgments of the Circuit Court for Milwaukee County; Gustav G. Gehrz, Circuit Judge.

Affirmed.

The Hathaway Baking Company and its employee, Forrest Whipple, as plaintiffs, commenced an action against the defendant, City of South Milwaukee, to enjoin it from prosecuting any action against the plaintiffs for the recovery of a forfeiture under Ordinance No. 127 of the defendant, and from taking any other action or proceeding against the plaintiffs under that ordinance. Separate actions for substantially the same relief were commenced against the same defendant by the Omar Baking Company, as plaintiff, and by the Lambrecht Creamery and Roy Bonnett and Arvin Elliott, its employees, as plaintiffs. The plaintiff Whipple, as an employee of the Hathaway Baking Company, George Van Waggoner, as an employee of the Omar Baking Company, and the plaintiffs Bonnett and Elliott, as employees of the Lambrecht Creamery, had been arrested under that ordinance on the charge that each of them had, as a hawker and peddler, as defined in paragraph 3 of section 2 of that ordinance, in violation thereof, vended, sold, or disposed of the products of their respective employers upon and about the streets and other places in the defendant city, without having obtained a license for that purpose from the defendant, and without having paid the license fee therefor, as required by that ordinance. In their complaints the plaintiffs, in connection with stating facts essential to constitute causes of action for the relief prayed for, alleged, in relation to Ordinance No. 127, that it is unconstitutional and void upon its face because it discriminated unfairly and unreasonably between classes of retailers, for which discrimination there is no reasonable basis; that the proposed enforcement thereof would deprive the plaintiffs of their property without due process of law and deny them the equal protection of the law, contrary to the Fourteenth Amendment to the Constitution of the United States and the provisions of the Constitution of Wisconsin (article 1, § 1); that such enforcement thereof is not within the purview of the inhibitions of the ordinance, and is an attempt to extend the application thereof for the protection of public health, safety, and morals in an unreasonable and arbitrary manner, which would deprive the plaintiffs of their rights and property; and that the license fees prescribed as applicable to the plaintiffs are confiscatory, excessive, and unreasonable, and bear no fair proportion to the cost of enforcement of said ordinance in the defendant city. The defendant, in its answers, admitting the existence of the ordinance and the prosecutions thereunder, alleged that the ordinance was constitutional and valid, and in force and effect in all respects.

Upon a trial of the issues in each of the actions, the court found, among other things, that the Hathaway Baking Company and the Omar Baking Company were engaged in the business of baking bakery products in the city of Milwaukee, and of selling and distributing their products in that city and the surrounding territory, including that of the defendant; that the Lambrecht Creamery had its principal place of business in the city of Milwaukee, and was engaged in the business of assembling, preparing, selling, and delivering eggs, poultry, butter, cheese, and other dairy products in that city and the surrounding territory, including that of the defendant; that each of the corporate plaintiffs, for the purpose of disposing of its products in the regular course of its business, maintained established routes throughout the territory in which it sold its products, and that, at designated times, each of the individuals, Whipple, Van Waggoner, and Roy Bonnett and Arvin Elliott, as a service man for his employer, traveled such a route in a truck provided by his employer, and delivered its products to its establishedor regular customers, located on such route, pursuant to pre-existing arrangement with such customers; and that the business of each of the plaintiffs was conducted in a manner similar to that customarily employed in the distribution of milk, and like products, by dealers therein over established routes to established or regular customers. Upon those facts, the court concluded that that method of doing business did not constitute hawking or peddling under the usual definitions of those terms, or as they are defined in Ordinance No. 127; and that, as that ordinance was not applicable to the business transacted in the defendant city by the plaintiffs, they were not required to be licensed thereunder and were therefore entitled to have the defendant enjoined from arresting or proceeding under that ordinance against the plaintiffs and their employees, so long as they, in conducting their businesses, made the distribution of their products by the delivery thereof along established routes to their established or regular customers, pursuant to pre-existing arrangements with them. Upon those conclusions of law, judgments were entered in accordance therewith, and defendant appealed therefrom.

Clarence J. O'Brien, of South Milwaukee, for appellant.

Herbert L. Mount, of Milwaukee, for respondents Whipple and Hathaway Baking Co.

Wengert & Moeller, of Milwaukee, for respondents Lambrecht Creamery, Roy Bonnett, and Arvin Elliott.

Miller, Mack & Fairchild and Paul R. Newcomb, all of Milwaukee, for respondent Omar Baking Co.

FRITZ, Justice.

[1] The judgments under review were based upon the court's adjudication that the plaintiffs' method of doing business by delivering their respective products along established routes to their established or regular customers, pursuant to pre-existing arrangements with such customers, was not hawking or peddling and was not prohibited by that ordinance. In section 2 thereof, the words “hawkers” and “peddlers,” as used therein, were defined as including “all individuals, whether principals or agents or employees, who go about the city from place to place transporting goods, wares, or merchandise for the purpose of vending, selling, disposing or delivering the same to any person or persons.” As the evidence established, without dispute, that Whipple, Van Waggoner, and Bonnett and Elliott, as service men for their respective employers, did go about the defendant city from the place of one customer to the place of the next, transporting goods, wares, or merchandise for the purpose of vending, selling, disposing of, and delivering them to those persons, their acts were within the definition in the ordinance of the words “hawkers” and “peddlers.” There is no limitation in that definition because of which it is not equally applicable to the plaintiffs' acts in regularly going from place to place for the purpose of selling or delivering to established customers, or for the purpose of making sales and deliveries of such of plaintiffs' products as such customers then chose to purchase and did usually purchase, although they were not contractually bound in advance to do so.

[2][3] However, regardless of whether the plaintiffs' methods of doing business constituted soliciting, hawking, or peddling, as those terms were usually defined at common law, or are defined in the ordinance, there arises in these cases the question whether the only provisions in the ordinance that prohibit the doing of those acts by hawkers or peddlers, without having first obtained a license, are unconstitutional and invalid because they are discriminatory against persons selling goods “for mercantile houses from cities other than South Milwaukee.” The only prohibitory provision in the ordinance, in so far as it requires hawkers and peddlers to have a license, is in section 4, which is as follows: “It shall be unlawful for any transient merchant, solicitor, hawker, or peddler to vend, sell or dispose of, or to solicit orders for the sale of goods by sample, order, or otherwise for mercantile houses from cities other than South Milwaukee, from house to house at retail, or to offer to vend, sell, or dispose of any goods, wares, merchandise, produce, goods, or any other thing about the streets, avenues, alleys, or any place whatsoever within the City of South Milwaukee without first having obtained a license from said city for that purpose, and having paid the license fee therefore as hereinafter provided and prescribed.” Thus, under that provision, the vending, selling, disposing of, or soliciting orders for the sale of goods by sample, order, or otherwise, without having a license therefor, is prohibited only “for mercantile houses from cities other than South Milwaukee.” In other words, by virtue of that clause, sales for mercantile houses located in South Milwaukee are impliedly exempted from that prohibitory provision; and that exemption is as applicable to the vending, selling, or disposing of goods from house to house at retail as it is to the act of soliciting for the sale thereof.

Consequently, by reason of that exemption in favor of mercantile houses located in the city of South Milwaukee, the impediment or burden which it was proposed to impose by those prohibitory provisions upon the plaintiffs and others similarly situated, is not equally applicable to the pursuits of all engaged in the...