82 So. 2d 831 | Miss. | 1955
Lead Opinion
This case involves the validity of a “Green River” ordinance of the City of Gulfport, making it unlawful for transient vendors to go in and upon private residences, and in and upon private property and buildings other than residences, without first having been requested or invited to do so by the owner or occupant, for the purpose of soliciting orders for the sale of goods or selling the same. We hold that the ordinance is valid as it applies to soliciting in private residences, but is invalid as to property and buildings other than residences, which includes primarily business offices and stores.
I.
The suit originated in the Chancery Court of Harrison County, and is here on appeal from a decree sustaining a general demurrer to the bill. The complainant was George Day, a resident of Neshoba County, doing business as George Day’s Studio. The defendant Klein was the Chief of Police of the City of Gulfport. A summary of the averments in the bill is as follows: Day’s Studio has its principal offices in Philadelphia, Mississippi. Day’s plan for the sale of portrait photographs is carried out by employees calling on people in their homes and at their places of business. These employees have samples of portrait photographs by Day, and exhibit these samples to the persons interested in having their photographs made. An appointment is then made through the soliciting employee with a photographer, also an employee of George Day’s Studio, who previously locates himself at some central position, usually a hotel, for the purpose of taking photographs. The person having his photograph made pays a down payment, and receives his photograph within a few days. The pho
On June 21, 1951, the Mayor and Board , of Commissioners enacted Gulfport Ordinance No. 781. Omitting the title and the general repealing clause in Section 7, that ordinance provides:
“WHEREAS, THE Mayor and Board of Commissioners of the City of Gulfport, Harrison County, Mississippi having gone into, studied and considered the matter do hereby find and determine that it is to the best interest of the City of Gulfport and the residents thereof that solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise should be regulated in the City of Gulfport, Mississippi.
“NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND BOARD OF COMMISSIONERS OF THE CITY OF GULFPORT, MISSISSIPPI, AS FOLLOWS, TO-WIT:
“Section 1: That the practice of going in and upon private residences in the City of Gulfport, Mississippi by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise not having been requested or invited so to do by the owner, owners, occupant or occupants of said private residence for the purpose of soliciting orders for the sale of goods, wares and merchandise and/or disposing of and/or peddling*198 or hawking the same, is declared to be a nuisance and punishable as such nuisance as a misdemeanor.
“Section 2: That the practice of going in and upon private property and buildings other than residences in the City of Gulfport, Mississippi by solicitors, peddlers, hawkers, itinerant merchants and transient vendors of merchandise not having been invited so to do by the owner, owners, occupant or occupants of said private property and buildings other than residence for the purpose of soliciting orders for the sale of goods, wares and merchandise and/or disposing of and/or peddling or hawking the same is declared to be a misdemeanor and punishable as such nuisance as a misdemeanor.
‘ ‘ Section 3: That any person violating the provisions of this ordinance shall upon conviction thereof be fined not more than $100.00 or imprisoned not more than thirty days or both fined not in excess of $100.00 and imprisoned not in excess of thirty days in the discretion of the Court.
“Section 4: That the provisions of this ordinance shall not apply to the sale or soliciting of order for the sale of milk, dairy products, vegetables, poultry, eggs and other farm and garden produce so far as the sale of the commodities named herein is now authorized by law.
“Section 5: That it being deemed by the Mayor and Board of Commissioners of the City of Gulfport, Mississippi that an emergency exists, this ordinance shall go into effect immediately upon its passage.
“Section 6: That should any section or portions of any section or sections hereof be found and determined violative of any constitution or laws by competent Courts, such findings shall innowise affect other section, sections or portions of section or sections hereof not found violative thereof.”
On August 11, 1954, appellant sent his sales force into the City of Gulfport. They located in a local hotel, and notified the chief of police. Two of appellant’s em
II.
This section of the opinion is directed to application of the ordinance to soliciting in private residences.
Municipalities derive their powers from the state. There are three statutes which are relevant to this ordinance. Code Section 3374-116 provides: “The municipal governing authorities shall have the power to
Code Section 3374-131 is specifically directed to transient vendors and traveling photographers. It was first passed in its present form by Miss. Laws 1950, Chapter 491, Section 131. It provides: “The governing authorities of municipalities shall have the power to adopt reasonable ordinances for the regulation of circuses, shows, theaters, bowling alleys, concerts, transient vendors, theatrical exhibitions, skating rinks, traveling photographers, pistol or shooting galleries, amusement parks and devices, and other similar things; and shall have the power and authority to regulate, prohibit, or suppress billiard tables, pool rooms, fortune tellers, cane or knife racks, slot machines and other gambling devices, and the sale or use of fireworks within the corporate limits.” (Emphasis added.)
Code Section 3374-137 states that municipalities shall have the power to enforce authorized ordinances by a fine of not exceeding $100 or imprisonment not exceeding thirty days, or both.
Appellant makes no serious contention that Ordinance No. 781 is unconstitutional. And there is no merit in such position. Provided the ordinance is a reasonable regulation, as required by Code Section 3374-131, it is valid. In 1951 the Supreme Court of the United States held that a substantially similar ordinance of the City of Alexandria, Louisiana, did not violate any federal
The problem is the interpretation of the above-quoted Mississippi statutes. The narrow issue is whether this ordinance is a reasonable regulation of transient vendors, including traveling photographers, as required by Code Section 3374-131. It is clearly regulatory and not prohibitory. It simply regulates a particular method of doing business, the house-to-house- canvassing without invitation. It does not prohibit the calling upon persons in private residences, but merely requires that such calls
Moreover, the governing authorities of the city have found as a fact that the ordinance was to the best interest of the city and its residents; that transient vendors at private residences should be regulated in that city; and that solicitation by them without prior invitation has become a nuisance. The ordinance recites that the mayor and board of commissioners have “gone into, studied and considered the matter,” and then makes the stated finding. Section 5 states that an emergency exists in the city on this subject, and that the ordinance shall go into effect immediately upon its passage. The findings and actions of the legislative body of the city, in its municipal ordinance, are entitled to a rebuttable presumption of truth, reasonableness, and validity. 37 Am. Jur., Municipal Corporations, Sections 175-177. And there is no contradiction of such findings in this record.
Door-to-door canvassing has flourished increasingly in recent years with a ready market furnished by the large concentrations of housing in residential subdivisions. The infrequent and still welcome solicitor to the rural home becomes to some a recurring nuisance in towns when the visits are multiplied. The Constitution’s protection of property rights does not make a city impotent to guard its citizens against the annoyances of life. It may reasonably regulate the manner of doing a legitimate business. The usual methods of seeking business are left open by the ordinance, which is regulatory in form. Ordinances such as this may compel the development of a new technique of approach to prospects. And although local retail competition may gain advantages from the location of their stores, the solicitor retains his
Appellant argues that, since he has paid the local privilege tax upon transient photographers, he is engaged in a lawful business and is immunized from municipal regulation. However, the issuance of a privilege license only licenses the business itself, and not a particular method of operation which is found contrary to the best interest of the public. Code Section 9696-215 so states: “The issuance of a privilege license, or the payment of a tax required therefor, shall not make lawful any business, employment, transaction, article or device, or the operation thereof, contrary to any statute of this state, or any ordinance of any municipality thereof.” The manner of doing business is subject to the police power of the city. City of Shreveport v. Cunningham, 190 La. 481, 182 So. 649 (1938); Mayor & Aldermen of the City of Vicksburg v. Mullane, 106 Miss. 99, 63 So. 412 (1913); City of Alexandria v. Jones, 216 La. 923, 45 So. 2d 79 (1950); Rowe v. Pocatello, 70 Idaho 343, 218 P. 2d 696 (1950). The occupation of peddling and transient yending of merchandise “possesses distinguishing characteristics of such a substantial nature as to enable legislative authority to place the business into a class and to legislate upon it as a class both in the matter of license fees and in measures of police regulation.” Pryor v. State, 162 Miss. 602, 139 So. 850 (1932); 40 Am. Jur., Peddlers, Section 7.
The Supreme Court of Louisiana, in City of Alexandria v. Breard, 217 La. 820, 47 So. 2d 553, 555-556 (1950), which dealt with a similar ordinance, gave an apt and pertinent discussion of the issues: “We are most willing to admit that the solicitors for Keystone Readers Service, Inc., of whom Breard is one, are of the highest character. That does not alter the fact that
In short, Code Section 3374-124, on the police power, and Section 3374-131, giving municipalities the power to adopt reasonable regulations for transient vendors and traveling photographers, are ample authority for the enactment by the City of Gulfport of its Ordinance No. 781, insofar as it applies to soliciting in private residences in the city. This was a proper exercise of the police power of the city, and is a reasonable regulation of this business, not a prohibition of it.
III.
On the other hand, we think that Section 2 of the ordinance, which applies to the “practice of going in and upon private property and buildings other than residences” by transient vendors and traveling photographers, soliciting business without prior invitation, is invalid. In practical application, Section 2 would pertain
Section 6 of the ordinance contains the usual separability clause, which manifests the council’s intent to consider Sections 1 and 2 as independent and separate provisions. 37 Am. Jur., Municipal Corporations, Section 167 states: “In accordance with general principles ordinarily applicable to municipal ordinances as well as to state statutes, where the provisions of an ordinance are separable and it may fairly be presumed that the municipal council would have enacted one part without the other, the whole ordinance will not be declared void because of the invalidity, such as the unconstitutionality or unreasonableness, of a part.”
IY.
Section 4 of the ordinance provides that it “shall not apply to the sale or soliciting of order for the sale of milt, dairy products, vegetables, poultry,
The decree of the chancery court is affirmed insofar as it sustained the demurrer to the prayer of the bill
Affirmed in part, and in part reversed and judgment. rendered for appellant.
Dissenting Opinion
dissenting.
It is true that the courts of nine states and the Supreme Court of the United States have upheld the validity of the so-called “Green River” ordinance, but eleven states, including Arkansas, Florida, Iowa, Kentucky, Maryland, Nebraska, New Jersey, Oklahoma, South Carolina, Texas and Virginia, have held such ordinances invalid. See 35 A. L. R. 2d, pages 358-9-60. Thus a majority, in point of numbers, is against the validity of such ordinances. Day was engaged in the business of a photographer. This is a lawful business, and I do not think a municipality can prohibit carrying on a lawful business unless it is a nuisance per se. King v. City of Louisville, 207 Miss. 612, 42 So. 2d 813; City of Kosciusko v. No Equal Textile Co., 139 Miss. 220, 104 So. 102; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723.
It is true that legislative authority was granted the municipality under Chapter 491, Laws of 1950, Section 3374-131, Code of 1942 Annotated, to adopt reasonable ordinances for the regulation of traveling photographers but such business can not be destroyed under the guise
A vital and necessary part of the business of a traveling photographer is the taking of orders. Under this ordinance, the solicitor can not go to a home until he has first had an invitation to do so. How is he going to get the invitation? It is said that he may use the telephone. Bitt what if the householder has no telephone? It is again said that he may use the mail. But, as a practical proposition how many people will answer letters inquiring if the writer may have permission to call and demonstrate his goods or wares? The use of radio or television is likewise not feasible. It seems to me that this so-called regulation of the business in fact destroys the business, because the traveling photographers will be unable to obtain orders for their goods.
Aggressiveness is the watchword of successful business in this age in which we live. Since when has it become necessary for a householder to have the government save him from the annoyance of a salesman, who is endeavoring to dispose of his goods and merchandise? If he does not wish to buy, he can simply say so; and he should have the intestinal fortitude to say no, rather than to fall back on the edicts of a paternalistic government.
I think the ordinance is invalid and it should be nullified.