203 Conn. 14 | Conn. | 1987
This is an appeal from the Appellate Court’s decision upholding the trial court’s refusal to declare invalid and enjoin the enforcement of an ordinance enacted by the named defendant, the town of Stratford, which prohibits vending from any type of motor vehicle upon the streets or public property within the town limits.
The stipulated facts include the following: The named plaintiff, Blue Sky Bar, Inc. (Blue Sky Bar), is a Connecticut corporation engaged in the business of vending ice cream and related food products from specially designed mobile vending trucks. Its business is principally concentrated in southwestern Connecticut. Vending is conducted during a season which runs approximately from March 18 to October 18 of each year. Most of the sales take place in residential neighborhoods with the balance taking place at recreation areas, playgrounds and beaches. The ice cream and related products which the plaintiffs sell are purchased from suppliers in at least seven states.
In May, 1983, the plaintiffs, Michael A. McDougall and Brian Tomasko, drivers of Blue Sky Bar trucks, individually applied for and were issued permits by the defendant town of Stratford to vend ice cream from a mobile vehicle during the 1983 vending season. McDougall and Tomasko also obtained health permits to vend food in Stratford.
On May 23, 1983, the defendant town passed an ordinance, effective upon passage, which provides in relevant part: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type
Upon the granting of their petition for certification, the plaintiffs have appealed to this court claiming that the Appellate Court erred in concluding that: (1) the defendant town had statutory authority to enact the
I
We consider first the plaintiffs’ claim that the defendants lacked statutory authority to prohibit vending from any type of motor vehicle. The plaintiffs and the defendants agree that the resolution of this issue necessarily hinges upon the relationship between General Statutes §§ 21-37
The plaintiffs maintain that the ordinance is invalid because it is inconsistent with § 21-37, which permits only the enactment of “reasonable ordinances” with reference to vending, rather than the “prohibition” of vending. The plaintiffs acknowledge that § 7-148 (c) (7) (H) (iv) uses the term “prohibit” but point out that that section also states that a municipality must enact ordinances “in a manner not inconsistent with the general statutes.” This provision, they argue, must be read in conjunction with § 21-37. They maintain that “obviously, the legislature intended § 7-148 (c) (7) (H) (iv) to be limited by § 21-37.” The plaintiffs also claim that § 7-148 (c) (7) (H) (iv), when read together with § 21-37, only permits a municipality “to prohibit a legitimate business if that business does not follow the licensure requirements or reasonable regulations imposed upon it.” The defendants, on the other hand, argue that the two statutes are not inconsistent; that is, § 7-148 (c) (7) (H) (iv) merely “elaborates” on the type of action a municipality may choose when enacting a “reasonable ordinance.”
It is well settled law that as a creation of the state, a municipality has no inherent powers of its own; New Haven Commission on Equal Opportunities v. Yale University, 183 Conn. 495, 499, 439 A.2d 404 (1981); and that a municipality possesses only such rights and powers that have been granted expressly to it by the state or that are necessary to discharge its duties and to carry out its objectives and purposes. Id., citing City Council v. Hall, 180 Conn. 243, 248, 429 A.2d 481 (1980); see also Simmons v. Canty, 195 Conn. 524, 529, 488 A.2d 1267 (1985); Buonocore v. Branford, 192 Conn. 399, 401-402, 471 A.2d 961 (1984).
The word “regulate” has been defined as “ ‘to prescribe the rule by which commerce is to be governed.’ ” United States v. Darby, 312 U.S. 100, 113, 61 S. Ct. 451, 85 L. Ed. 609 (1941). “The power to regulate, however, entails a certain degree of prohibition. 2 McQuillin, Municipal Corporations (3d Ed.) § 10.26. The word ‘regulate’ implies, when used in legislation, the bringing under the control of constituted authorities the subject to be regulated. Webster, New International Dictionary (2d Ed.). It infers limitations.” Hartland v. Jensen’s, Inc., 146 Conn. 697, 702, 155 A.2d 754 (1959); see Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 342, 348 A.2d 596 (1974). We have recognized that it “requires no citation of authority to say that regulation may in many instances result in prohibition. The question is whether the result is reached in a reasonable manner and is necessary for the public welfare.” Shorehaven Golf Club, Inc. v. Water Resources Commission, 146 Conn. 619, 625, 153 A.2d 444 (1959). It is fair to say that the power to regulate, however, does not necessarily imply the power to prohibit absolutely any business or trade, as the very essence of regulation, which infers limitations, is the continued existence of that which is regulated. Prohibition of an
We conclude that the ordinance at issue in this case is regulatory. The ordinance merely proscribes vending from motor vehicles; it does not preclude all vending. The plaintiffs, therefore, are not absolutely forbidden from vending their products; rather, the effect of the ordinance is to regulate the method by which the plaintiffs may vend their products. While it is true that this ordinance limits the plaintiffs in the manner of merchandising their products, there is nothing in the ordinance that forbids the plaintiffs from selling their products via bicycle, pushcart or other nonmotor vehicle. Cf. Delight Wholesale Co. v. Overland Park, 203 Kan. 99, 453 P.2d 82 (1969). There is no question that both §§ 21-37 and 7-148 (c) (7) (H) (iv) permit regulation of “vending or hawking on public streets.” The Appellate Court, therefore, was correct in its conclusion that the defendant town had statutory authority to enact the ordinance.
II
We next address the plaintiffs’ claim that the Appellate Court erred in concluding that the ordinance was a reasonable exercise of police power. The plaintiffs argue that the ordinance is unreasonable and thus
The challenged ordinance is an exercise of the police power conferred upon the town by statute. There is no doubt that the town has a right to regulate a business, pursuant to its police power, in the interest of protecting the public safety or the welfare of its inhabitants. Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 317, 417 A.2d 343 (1979); C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 167 Conn. 304, 307, 355 A.2d 247 (1974); see also General Statutes § 7-148 (c) (7) (H). Any such regulation, however, must be reasonably calculated to achieve that purpose; it must have a rational relationship to its objective. Caldor’s, Inc. v. Bedding Barn, Inc., supra; see also Helbig v. Zoning Commission, 185 Conn. 294, 304, 440 A.2d 940 (1981); State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956). “The State may regulate any business or the use of any property in the interest of the public welfare or the public convenience, provided it is done reasonably. Connecticut Light & Power Co. v. Southbury, 95 Conn. 242, 111 Atl. 363 [1920].” State v. Bassett, 100 Conn. 430, 432, 123 A. 842 (1924). “The limit of the exercise of the police power is necessarily flexible, because it has to be considered in the light of the times and the prevailing conditions. State v. Hillman, 110 Conn. 92, 105, 147 A. 294 [1929].” State v. Gordon, supra. “Whether the times and conditions
The sale of articles of merchandise on streets and other public places is a business which concerns many
“Whether conditions require the degree of regulation imposed by an ordinance is a matter for the judgment of the legislative body of the municipality.” Id., 265, citing Connecticut Theatrical Corporation v. New Britain, supra. Given the fact that courts indulge every legal presumption and reasonable inference of fact in favor of the validity of police power legislation, the existence of facts justifying the enactment are presumed. 6 E. McQuillin, supra, § 24.31. “This strong presumption of legislative validity is overcome only when it plainly appears that the terms of the legislation are not reasonable or that they are not rationally adapted to the promotion of public health, safety, convenience, or welfare. Young v. West Hartford, 111 Conn. 27, 31-32, 149 A. 205 (1930).” Blue Sky Bar, Inc. v. Stratford, supra, 266. The party challenging the enactment bears the burden of overcoming this presumption.
The defendants were certainly entitled to conclude that this ordinance would have the effect of promoting, at least in part, their concern for public safety in the town of Stratford. For example, in Neal v. Shiels, Inc., 166 Conn. 3, 13, 347 A.2d 102 (1974), this court recognized the danger to the safety of children created by vending ice cream on public streets. In Neal, we
In reaching this conclusion, we recognize that the parties have stipulated that during the 1983 vending season, no accidents resulting in personal injuries involving Blue Sky Bar trucks had occurred within the town of Stratford. This alone, however, is not enough to satisfy the plaintiffs’ heavy burden in challenging the rationality of the ordinance. The plaintiffs have failed to present any evidence to the trial court to rebut the presumed rationality of the defendants’ legitimate ongoing concern for public safety. Franklin Furniture Co. v. Bridgeport, 142 Conn. 510, 514, 115 A.2d 435 (1955).
III
We next address the plaintiffs’ claim that the Appellate Court erred in concluding that the Stratford ordinance did not violate the due process and equal protection clauses of the United States constitution.
“In the case of economic regulation, the test to determine constitutionality is well established in our cases. The equal protection and the due process provisions of both constitutions have the same meaning and the same limitations. Miller v. Heffernan, [173 Conn. 506, 516-17, 378 A.2d 572 (1977)]; Horton v. Meskill, 172 Conn. 615, 639, 376 A.2d 359 (1977); Kellems v. Brown, 163 Conn. 478, 485, 313 A.2d 53, appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1972); Katz v. Brandon, 156 Conn. 521, 537, 245 A.2d 579 (1968); People v. Santiago, 51 App. Div. 2d 1, 10, 379 N.Y.S.2d 843 (1975).” Caldor’s, Inc. v. Bedding Barn, Inc., supra, 314; see also 2 R. Rotunda, J. Nowak & J. Young, Constitutional Law: Substance and Procedure § 15.4, pp. 51-52. “Under any and all of these provisions, an act regulating economic activity must bear a reasonable relationship to a proper legislative purpose in a manner that is neither arbitrary nor discriminatory. Carroll v. Schwartz, 127 Conn. 126, 130, 14 A.2d 754 (1940). ‘The court’s function . . . is to decide whether the purpose of the legislation is a legitimate one and whether the particular enactment is designed to accomplish that purpose in a fair and reasonable way. If an enactment meets this test, it satisfies the constitutional requirements of due process and equal protection.’ Pierce v. Albanese, 144 Conn. 241, 249, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). The constitutional issue is whether legislative classifications or discriminations bear ‘a rational
We disagree with the plaintiffs’ argument that the ordinance impermissibly infringes upon their right to engage in a lawful business.
Under the relaxed constitutional standard of review applied to economic regulation, we also conclude that the challenged classification is rationally related to the purpose of the ordinance. See New Orleans v. Dukes, supra. Although a “ ‘legislative act . . . may not establish classes that have no reasonable relation to any permissible, public purpose . . . [it] does not . . . prevent the legislature from dealing differently with different classes of people. It means only that classifi
IV
We next address the plaintiffs’ final claim that the Appellate Court erred in concluding that the ordinance does not impermissibly interfere with interstate commerce. The plaintiffs argue that the prohibition on sales
“Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows: Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 443 [80 S. Ct. 813, 4 L. Ed. 2d 852 (1960)].” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970); see also Edgar v. Mite Corporation, 457 U.S. 624, 102 S. Ct. 2629, 73 L. Ed. 2d 269 (1982); 1 R. Rotunda, J. Nowak & J. Young, supra, § 11.9, pp. 618-19.
We note that in this case, we are dealing with “ ‘legislation in the field of safety where the propriety of local regulation has long been recognized.’ ” Pike v. Bruce Church, Inc., supra, 143, quoting Southern Pacific Co.
As we have already discussed, the ordinance was enacted to effectuate a legitimate local public interest. We note also that the ordinance operates evenhandedly to effectuate this interest. Because of the ordinance, no person may “vend or peddle . . . from any type of motor vehicle any commodity whatsoever.” By virtue of its general application, this ordinance cannot be criticized as an attempt by the defendants to protect the economic interests of local vendors at the expense of nonlocal vendors. This case is distinguishable, therefore, from those cases in which courts have struck down challenged legislation which had been enacted in order to protect local interests from out-of-state competition. Cf. Dean Milk Co. v. Madison, 340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329 (1951); Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 69 S. Ct. 657, 93 L. Ed. 865 (1949). “[Regulation that leaves out-of-state sellers on the same basis as local sellers [is not] invalid. ...” Breard v. Alexandria, supra, 638.
We do not agree with the plaintiffs’ conclusory statement that the probable impact of the ordinance is to create an “enormous burden on interstate commerce.” Any impact on interstate commerce which may result from this ordinance, insofar as is apparent from the record before us, is certainly incidental. The plaintiffs
We affirm the decision of the Appellate Court.
In this opinion the other justices concurred.
In its entirety, the ordinance provides as follows: “It shall be unlawful for any person to vend or peddle upon the public streets, public property, and town property of the town of Stratford from any type of motor vehicle any commodity whatsoever.
“Any person who violates this article shall be fined not less than one hundred dollars ($100.00).”
The plaintiffs also sought “[a]ny other relief, legal or equitable, that the court deems proper.”
Specifically, the court held that the ordinance did not violate the due process and equal protection clauses of the fourteenth amendment to the United States constitution nor did it violate the commerce clause of the United States constitution.
The record indicates that this claim was made for the first time on appeal in the Appellate Court. The Appellate Court, after concluding that the plaintiffs had not presented any exceptional circumstances which would justify departure from the rule that claims not distinctly raised at trial cannot be raised for the first time on appeal, refused to address the merits of the plaintiffs’ claim. Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 263 n.2, 493 A.2d 908 (1985). We agree with this conclusion of the Appellate Court and, therefore, will not address this claim, except to the extent that it may be implicated in our discussion of the other issues.
General Statutes (Rev. to 1983) § 21-37 provides: “town ordinances. Any town may make reasonable ordinances with reference to the vending or hawking upon its public streets of any goods, wares or other merchandise at public or private sale or auction, or to the vending or peddling of such articles from house to house within its limits, including the imposition of a fee, not exceeding two hundred fifty dollars a year, applicable with respect to any person engaged in such vending, hawking or peddling, for the privilege of so vending, hawking or peddling such merchandise. This section shall not apply to sales by farmers and gardeners of the produce of their farms and gardens, or to the sale, distribution and delivery of milk, teas, coffees, spices, groceries, meats and bakery goods, to sales on approval, to conditional sales of merchandise, or to the taking of orders for merchandise for future delivery when full payment is not required at the time of solicitation.”
General Statutes § 7-148 (c) (7) (H) (iv) provides: “(c) Powers. Any municipality shall have the power to do any of the following, in addition to all powers granted to municipalities under the constitution and general stat
An ordinance is a legislative enactment of a municipality. 2 J. Sutherland, Statutory Construction (4th Ed. Sands) § 30.01. “ ‘It designates a local law of a municipal corporation, duly enacted by the proper authorities, prescribing general, uniform, and permanent rules of conduct relating to the corporate affairs of the municipality. 5 McQuillin, Municipal Corporations (3d Ed.) § 15.01.’ Morris v. Newington, 36 Conn. Sup. 74, 80, 411 A.2d 939 (1979) [aff’d, 180 Conn. 89, 428 A.2d 342 (1980)].” Blue
“ ‘Where municipal authorities act in accordance with formal requirements, courts will interfere only “where fraud, corruption, improper motives or influences, plain disregard of duty, gross abuse of power, or violation of law, enter into or characterize . . . [the action taken].” Whitney v. New Haven, 58 Conn. 450, 457, 20 A. 666 [1890]; LaTorre v. Hartford, 167 Conn. 1, 9, 355 A.2d 101 [1974]; 13 McQuillin, Municipal Corporations (3d Ed.) §§ 37.03, 37.26.’ Pizzuto v. Newington, 174 Conn. 282, 286, 386 A.2d 238 (1978).” Blue Sky Bar, Inc. v. Stratford, 4 Conn. App. 261, 265, 493 A.2d 908 (1985); see Northeast Electronics Corporation v. Royal Associates, 184 Conn. 589, 592, 440 A.2d 239 (1981).
The plaintiffs characterize this claim as a deprivation of their “fundamental right” to engage in a lawful business. While we agree with the plaintiffs’ contention that whenever an ordinance infringes on a fundamental right, it must be justified by a compelling government interest, we disagree with the plaintiffs’ characterization of their rights as “fundamental.” In Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923), the United States Supreme Court indicated that the due process clause of the fourteenth amendment “denotes not merely freedom from bodily restraint but also the right of the individual ... to engage in any of the common occupations of life . . . .” Meyer, we note, stated: “The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Id., 399-400. This view accords with Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894), where the United States Supreme Court stated: “The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations.” See State v. McCleary, 65 N.C. App. 174, 180-81, 308 S.E.2d 883 (1983). Thus, “[a] state law will not be permitted to deny a person the right to pursue his occupation . . . unless it is rationally related to the achievement of a legitimate state interest. Kelley v. Johnson, 425 U.S. 238, 247, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 172-73, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972).” Margaret S. v. Treen, 597 F. Sup. 636, 674 (E.D. La. 1984), aff'd, 794 F.2d
The plaintiff also claims that a less intrusive means of regulating motorized vendors could have been employed which could have made motorized vending safer than other forms of street vending. In exercising its police power, a local legislative body has broad discretion, both in determining what the public welfare requires and in fashioning legislation to meet that need. Mott’s Super Markets, Inc. v. Frassinelli, 148 Conn. 481, 487, 172 A.2d 381 (1961). In the economic sphere, the test is whether it is conceivable that the legislation bears a rational relationship to a legitimate government objective; there is no requirement that the legislature enact the least intrusive means of accomplishing a desired goal. See New Orleans v. Dukes, 427 U.S. 297, 303-304, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976), citing Katzenbach v. Morgan, 384 U.S. 641, 657, 86 S. Ct. 1731, 16 L. Ed. 2d 828 (1966); Williamson v. Lee Optical, 348 U.S. 483, 489, 75 S. Ct. 461, 99 L. Ed. 562 (1954), reh. denied, 349 U.S. 925, 75 S. Ct. 657, 99 L. Ed. 1256 (1955).
In support of this contention, the plaintiffs allege that certain products purchased and sold by their company are part of the stream of interstate commerce.
“A challenged law need not be a state statute to violate the commerce clause; a local ordinance can also create an unlawful infringement on interstate commerce.” Service Machine & Shipbuilding Corporation v. Edwards, 617 F.2d 70, 73 (5th Cir.), aff’d, 449 U.S. 913, 101 S. Ct. 310, 66 L. Ed. 2d 142 (1980).