Mechanicsburg Borough v. Koons , 18 Pa. Super. 131 ( 1901 )

Opinion by

W. D. Porter, J.,

The town council of the borough of Mechanicsburg enacted an ordinance requiring every person canvassing from house to house, or on the public streets for the purpose of selling or soliciting orders for, by sample or otherwise, boohs, teas, fruits, groceries and merchandise of any kind to take out a license, and imposing a penalty for a violation of its terms. The defendant, as the agent of the Grand Union Tea Company, engaged in the business of canvassing from house to house, in the borough, for the purpose of soliciting orders for teas, and in so doing exhibited samples and entered into contracts for the sale of teas, to be delivered to private consumers at future times. The chief place of business of the principals employing the defendant was in the city of New York, but they had a branch store in the city of Harrisburg, and the orders taken by the defendant were sent to this branch store, which delivered the goods in any quantity that might be ordered. The business in which the defendant was engaged was in no way directly connected with interstate commerce. The defendant had not obtained a license as required by the ordinance, and this action was brought to recover the penalty thereby imposed. The authority of the borough to require persons canvassing from house to house, for the purpose of selling goods, to take out a license, and to impose a penalty for the violation of such an ordinance is within the police power delegated by the general borough law of April 3, 1851, P. L. 320 : Warren Borough v. Geer, 117 Pa. 207; North Wales Borough v. Brownback, 10 Pa. Superior Ct. 227; North Wales Borough v. Brownback, 194 Pa. 609; Titusville v. Brennan, 143 Pa. 642.

The grounds upon which the defendant challenged the validity of the ordinance were agreed upon between the parties and set forth in the case stated presented to the court below. “ 1. It is a trade regulation to protect the merchants of the borough of Mechanicsburg, against all who live beyond the borough limits, and not a police regulation. 2. The provisions of the said ordinance created classes, to one of which the tax provided is applicable, while another class is exempt and is therefore unconstitutional.” An argument against the validity of the ordinance has been made in this court which does not seem to have been presented in the court below; it is based upon the fact that one license fee is exacted of peddlers of fish, a different rate is fixed for those canvassing for the sale of books and a third rate for those canvassing from house to house for the sale of teas, other articles specifically mentioned and merchandise generally. It was within the police power of the borough to require those engaged in peddling fish to have a license, in the interests of the public health. The business is one in which the failure to exercise proper care, in the preservation of the commodity from decay, might quickly result in the change of a nutritious article of food into a noxious poison. The taking out of a license serves to identify the dealer and aids the authorities in ascertaining the source from which he derives his supply and his facilities for taking care of it after it has come into his hands. The borough authorities are best able to ascertain the probable cost of the necessary investigation and it is only required that the rate imposed shall not be so excessive as to be fairly deemed unreasonable. Many peddlers of and canvassers for the sale of books, teas and other articles are honest and estimable people but it is a business in which the vagrant, dishonest and violent may readily engage, and its successful pursuit almost necessarily involves an intrusion into the private dwellings of citizens with the incidental opportunities for theft and to observe the means of access for those intent upon future burglary. In order to in some measure guard against these evils and to protect families against incessant annoyance it is within the police power of a borough, for the promotion of good order, to identify those engaged in such business by requiring a license. Most persons know the character of books which they wish to read, but the nonexpert who buys teas from an itinerant merchant may not know what he is getting. When the article peddled is in its nature something which renders imposition easy of accomplishment, a different element enters into the problem, and the public have a right to take measures to assure themselves that those engaged in the business are not utterly irresponsible, by fixing a license rate which will exclude the mere vagrant from a business full of opportunities for fraud. It was competent for the borough authorities to require peddlers of either fish, books or teas to take out a license and to permit peddlers of the' other two articles to pursue their traffic without such regulation. The fact that all peddlers of any one of these articles were required to pay the same license fee was requisite to the validity of the ordinance as a police regulation, but the fact that peddlers of teas were required to pay more than peddlers of fish did not destroy the validity of the measure. Uniformity is accomplished when all those who, under like conditions, deal in the same article of commerce are placed upon an equal footing.

A more serious question arises when we come to the consideration of the exception of certain classes of traffic out of the operation of the regulation, which is as follows: “ Provided: That the provisions of this ordinance shall not apply to persons selling by sample to manufacturers, or to licensed merchants, or to dealers residing, or doing business in said borough, nor to persons selling their own farm produce.” This provision takes out of the operation of the ordinance two classes of sales : 1. Those in which a manufacturer, or dealer residing or doing business in the borough is the purchaser. 2. Those in which a farmer is the vendor of the produce of his own farm. The exemption of farmers selling the produce of their farms is clearly sustainable: New Castle v. Cutler, 15 Pa. Superior Ct. 625. This exemption includes all farmers, wherever they may reside. The exemption of sales made to manufacturers and dealers, residing or doing business in the borough, presents an entirely different question. It will be observed that this exception is based on the place of business, or residence, of the purchaser. The ordinance applies to all vendors without regard to place of residence. There is a very clear distinction between the traveling salesman, or drummer, acting as the intermediary between the importer or wholesale dealer and the local trade; and the itinerant canvasser who goes from house to house, intruding himself into the homes of his prospective customers: Titusville v. Brennan, supra. The exception out of the operation of the ordinance of sales by traveling salesmen, of goods to be used in trade, to dealers, or, of supplies for a manufacturing establishment, to the manufacturer, would be both valid and reasonable. In the absence of any provision exempting them such traveling salesmen would not come within the scope of the ordinance, for they could not be said to be “persons canvassing from house to house, or on the public streets, for the purpose of selling goods.” The primary reasons for sustaining ordinances regulating peddling, or canvassing from house to house, do not apply to such traveling salesmen : New Gas-tie v. Cutler, supra. The exception now under consideration cannot, however, be sustained upon this principle for the exception is so broad in its terms that it would cover all sales made to a manufacturer or dealer whether they had any relation to his business or not. According to the terms of this ordinance the itinerant tea merchant without a license may sell his teas to a manufacturer of or dealer in hardware, at his residence in Mechanicsburg, while the hardware store or manufactory, which takes this sale out of the operation of the ordinance, is in Harrisburg. If this ordinance was intended to protect the homes of the citizens of the borough from the intrusive visits of fraudulent peddlers, then the homes of these manufacturers and dealers ought not to have been excepted out of its beneficent provisions. If we consider it as a tax on the sales made by peddlers, then there is no reason why the sales made to a doctor, minister and mechanic should be taxed, while those made to a manufacturer or merchant go free, for the sales are all made under like conditions and the exception in the ordinance would cover every sale made by sample to a merchant or manufacturer, though made at his place of residence and having no connection with his business whatever. The ordinance cannot be sustained by substituting “ and ” for “ or,” and thus making the exception apply only to sales made to a manufacturer or dealer residing and doing business in the borough, for that would be to discriminate between dealers upon the ground of residence; and between residents or temporary visitors upon the ground of location of their place of business: Commonwealth v. Snyder, 182 Pa. 630. Should we adopt the reading of the ordinance suggested, then two furniture dealers might have had their stores side by side in the borough, one of them having his place of residence within and the other without the borough limits, and if this defendant had met them upon the street and sold each of them by sample ten pounds of tea, one of the sales would have been a violation of the ordinance and thé other would not. There can be no difficulty in drawing an ordinance which will accomplish all that the borough under its police power is authorized to attempt, and which will apply equally to all those who come within the corporate limits, and which will at the same time leave open the channels of trade through which merchants and manufacturers may receive supplies for their business. The ordinance in question may have been intended for legitimate purposes, but as drawn it offended against the rule requiring equality and uniformity in regulations of this nature.

The judgment is affirmed.