Breard v. Alexandria

Mr. Chief Justice Vinson,

with whom Mr. Justice Douglas joins, dissenting.

The ordinance before us makes criminal the hitherto legitimate business practice of soliciting magazine subscriptions from door to door without prior invitation of the homeowner. Looking only to the face of that ordinance, the Court sustains it as against objections under the Due Process Clause, the Commerce Clause and the First Amendment. I dissent and would reverse the judgment below without reaching all of the issues raised, for, in my opinion, the ordinance constitutes an undue and discriminatory burden on interstate commerce.

The Court holds that because the “ordinance falls in the classification of regulation,” the city council is free to burden interstate commerce. Ante, p. 638. In my view, the ordinance is a flat prohibition of solicitation. The Louisiana Supreme Court recognized this fact when it characterized the ordinance as “provid [ing] for a blanket prohibition of solicitation without invitation, save for food vendors, who are specifically exempt.” 217 La. at 828, 47 So. 2d at 556. Unlike this Court, the state court acknowledged the prohibitory character of the ordinance in rejecting appellant’s claim under the Commerce Clause'in the following portion of its opinion:

“The ordinance imposes no tax, no license. It is a prohibition of an activity on local territory, *646 involving the problematical sale of a commodity originating in another state, which is actually distributed through the United States Mails. It imposes no burden on the distribution itself, nor on the manufacture of the commodity, nor on any phase of the transportation from one place to another of that commodity.” (Emphasis in original.) 217 La. at 829, 47 So. 2d at 556.

At least since the decision in Robbins v. Shelby County Taxing District, 120 U. S. 489, 497 (1887), this Court has regarded the process of soliciting orders for goods to be shipped across state lines as being interstate commerce as much as the transportation itself. Under the line of cases following this principle, reexamined and reaffirmed in Nippert v. Richmond, 327 U. S. 416 (1946), the process of solicitation for interstate commerce cannot be subjected to taxes, licenses or bonding requirements that in their practical operation discriminate against or unduly burden interstate commerce. The Court does not today purport to overrule this line of decisions. And it acknowledges, as it must, that the Court has sharply distinguished the process of solicitation of interstate business from the essentially local retailing operations of hawking and peddling. See Wagner v. Covington, 251 U. S. 95, 103-104 (1919), and cases cited therein. Nor does the opinion dispute that this ordinance has a severe economic impact upon the substantial interstate business of appellant’s employer, as well as the entire magazine industry which derives 50% to 60% of its annual subscription circulation from the very type of solicitation prohibited by this ordinance. I disagree with the Court in its holding that an ordinance imposing a “blanket prohibition” can be sustained under the Commerce Clause as mere regulation.

*647 Congress is given the power “To regulate Commerce . . . among the several States.” U. S. Const., Art. I, § 8, cl. 3. The doctrine of Cooley v. Board of Wardens, 12 How. 299 (1851), permits a state to exercise its police powers in a manner impinging upon interstate commerce only where the subject of regulation is essentially local and then only when there is no discrimination against or undue burden on interstate commerce. This is an approach grounded in the practical, an approach which imposes upon this Court the “duty to determine whether the statute [or ordinance] under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.” Best & Co. v. Maxwell, 311 U. S. 454, 455-456 (1940). That this ordinance, on its face, professes to protect the home does not relieve us of our duty to weigh the practical effect of the ordinance upon interstate commerce. Lack of discrimination on its face has not heretofore been regarded as sufficient to sustain an ordinance without inquiry into its practical effects upon interstate commerce. E. g., Dean Milk Co. v. Madison, 340 U. S. 349, 354 (1951) (prohibition against sale of milk pasteurized more than five miles from city); Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 336 (1925) (requirement that solicitors file bond); Minnesota v. Barber, 136 U. S. 313 (1890) (statute requiring inspection of meat within state).

In passing upon other ordinances affecting solicitors, this Court has not hesitated in noting the economic fact that “the ‘real competitors’ of [solicitors] are, among others, the local retail merchants.” Nippert v. Richmond, supra, at 433 , citing Best & Co. v. Maxwell, supra. See also Robbins v. Shelby County Taxing District, supra, at 498. The Court acknowledges “effective competition” between solicitors and the local retail merchants, ante, p. 627, but is deliberate in its refusal to appraise the *648 practical effect of this ordinance as a deterrent to interstate commerce, ante, p. 639. I think it plain that a “blanket prohibition” upon appellant’s solicitation discriminates against and unduly burdens interstate commerce in favoring local retail merchants. “Whether or not it was so intended, those are its necessary effects.” Nippert v. Richmond, supra, at 434 . The fact that this ordinance exempts solicitation by the essentially local purveyors of farm products shows that local economic interests are relieved of the burdensome effects of the ordinance. No one doubts that protection of the home is a proper subject of legislation, but that end can be served without prohibiting interstate commerce. Our prior decisions cannot be avoided by limiting their authority to the limited categories of tax and license. On the contrary, we must guard against state action which, “in any form or under any guise, directly burden [s] the prosecution of interstate business.” Baldwin v. Seelig, 294 U. S. 511, 522 (1935), citing International Textbook Co. v. Pigg, 217 U. S. 91, 112 (1910). See also Hood & Sons v. Du Mond, 336 U. S. 525 (1949). I cannot agree that this Court should defer to the City Council of Alexandria as though we had before us an act of Congress regulating commerce. See ante, p. 640. “[T]his Court, and not the state legislature [or the city council], is under the commerce clause the final arbiter of the competing demands of state [or local] and national interests.” Southern Pacific Co. v. Arizona, 325 U. S. 761 , 769 (1945).

The Court relies upon Bunger v. Green River, 300 U. S. 638 (1937), where the conviction of a Fuller Brush man was sustained under an ordinance akin to the one before us. The order was entered without argument, without opinion and with citation of the three cases discussed by the Court, ante, at p. 633, each of which cases sustained as “incidental” to interstate commerce state action regu *649 lating local inspection and feeding of cattle, and the sale of produce. *

I would apply to this case the principles so recently announced in Dean Milk Co. v. Madison, 340 U. S. 349 (1951). In the course of its discussion of our Dean Milk decision, the Court remarks that in the instant case “Interstate commerce itself knocks on the local door.” Ante, p. 636. As I read the prior decisions of this Court, that fact, far from justifying avoidance of Dean Milk, buttresses my conclusion that the ordinance cannot consistently with the Commerce Clause be applied to appellant.

It is passing strange that, after relying on three cases grounded solely on “incidental” as a test of validity under the Commerce Clause, the Court should itself state that such a test “has not continued as a useful manner for determining the validity of local regulation of matters affecting interstate commerce.” Ante, p. 635, n. 19.