White v. Town Of Culpeper

• Decision Date: 20 February 1939
• Citation: 1 S.E.2d 269
• Court: Virginia Supreme Court
• Parties: WHITE. v. TOWN OF CULPEPER.

1 S.E.2d 269

WHITE.

v.TOWN OF CULPEPER.

Supreme Court of Appeals of Virginia.

Feb. 20, 1939.

Error to Circuit Court, Culpeper County; Alexander T. Browning, Judge.

J. H. White was convicted of violating an ordinance of the Town of Culpeper, a municipal corporation, and he brings error.

Reversed and defendant discharged from custody.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

R. A. Bickers, of Culpeper, and John S. Barbour, of Fairfax, for plaintiff in error.

Burnett Miller and E. E. Johnson, both of Culpeper, for defendant in error.

CAMPBELL, Chief Justice.

The town of Culpeper is a Virginia municipality deriving its governmental powers from its legislative charter and from the general laws of the State. At a meeting of the town council, held on the 13th day of April, 1937, the following ordinance was enacted:

"Be it ordained by the Council of the Town of Culpeper, Virginia:

"Section 1. The practice of being in and upon private residences in the town of Culpeper, Virginia, by solicitors, itinerant merchants, and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, or occupant or occupants of said private residences for the purpose of soliciting orders for the sale of goods, wares, and merchandise or for the purpose of disposing of same, is hereby declared to be a nuisance and punishable as such nuisance as a misdemeanor.

"Section 2. The police officers of the Town of Culpeper are hereby required and directed to suppress the same and to abate any such nuisance as is described in the first section of this ordinance.

"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 a sum of not less than Twenty-Five Dollars ($25.00) or more than One Hundred Dollars ($100.00) together with costs."

The general law applicable to municipalities is section 3030 of the Code, and contains this general grant of power: "Every city and town shall have power * * * to prevent injury or annoyance from anything dangerous, offensive, or unhealthy, and cause any nuisance to be abated."

The charter basis upon which the ordinance is founded is as follows:

"The said town, and council thereof, shall in addition to the power herein and heretofore granted to it, and the duties herein and heretofore granted to it, and the duties herein and heretofore imposed upon it, have all the rights and powers granted to towns under all provisions of the Code of Virginia.

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"The Council shall have power within said town to lay off * * * and pave streets * * * and gutters for the public use * * * and have them kept in good order * * *; to prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome; to protect the places of di-vine worship and about the premises where held; to abate or cause to be abated anything which, in the opinion of a majority of the whole council, shall be a nuisance."

The defendant, John H. White, was tried and convicted by the trial justice of Culpeper County, upon a warrant which charged him with violating the ordinance above set forth. Upon appeal to the circuit court, a trial by jury was waived, and the case was submitted to the trial court upon the following agreed statement of facts:

"First: The defendant, J. H. White, is a solicitor for Real Silk Hosiery Mills, Inc., an Illinois corporation, with its mills and executive offices located in the city of Indianapolis, Indiana, and hereinafter referred to as Mills. The Mills is engaged in the manufacture and sale of hosiery, lingerie, and other similar merchandise.

"Second: The defendant has no stock of merchandise, but has samples which he displays to his customers. If a customer desires to place an order, he signs an order blank, which the defendant carries with him for such purposes. This order blank gives the name and address of the customer, the merchandise which he desires, the sizes, prices, amount paid down, and balance to be paid. Such signed order blank is sent to the Mills at Indianapolis for its approval and acceptance. If approved and accepted, the order is filled by merchandise sent direct from the Mills to the customer, parcel post, C. O. D. If the order is not approved, accepted and filled, the down payment is returned to the customer.

"Third: The defendant White called upon listed customers of said Mills in the Town of Culpeper, Virginia, where such orders have been solicited for more than the past fifteen years. As he hears of new customers likely to be interested, he calls upon them also.

"Fourth: The defendant as solicitor of the Mills at times in approaching a customer, or prospective purchaser, at their private home would ask permission to call later and present a small token or gift, and if permission was given would later that day or probably the next day call and solicit the order; and in some instances, which was especially true as to old customers, they would approach their customers, state their business and solicit or ders without first asking permission to return and solicit an order. The defendant was at all times courteous, gentlemanly, and considerate in all of his calls. He was never offensive or unduly insistent, nor were any of his acts or practices dangerous, offensive, unhealthy, or unsafe, either as relating to the general public or the person or persons upon whom the defendant called."

The judgment of the trial justice was affirmed and it was adjudged that defendant pay the town of Culpeper a fine of $25.

The assignments of error challenging the judgment entered against the defendant are five in number. It is unnecessary to discuss the assignments of error separately, for' the reason that they involve only one question, namely, Is the ordinance a valid and binding one?

It is conceded that the ordinance under consideration is patterned after the ordinance adopted by the town of Green River, Wyoming, which has been the subject of much litigation and frequent judicial comment. It is upon the decisions holding the Green River ordinance valid that counsel for the town mainly rely for affirmance. Those cases are: Town of Green River v. Fuller Brush Company, 10 Cir., 65 F.2d 112, 88 A.L.R. 177; Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456.

Opposed to the holding in those cases, based upon similar or identical ordinances, are the cases of Real Silk Hosiery Mills v. City of Richmond, California, D. C, 298 F. 126; Jewel Tea Company v. Town of Bel Air, 172 Md. 536, 192 A. 417; City of Orangeburg v. Farmer, 181 S.C. 143, 186 S.E. 783; Prior v. White, 132 Fla. 1, 180 So. 347, 116 A.L.R. 1176.

In the last named case, Mr. Justice Brown, in an able opinion, has carefully analyzed all of the cases dealing with the question, and drawn all proper distinctions involved.

The question of the validity of the instant ordinance...