# Transcript of Record — Healy v. Ratta

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Transcript of Record
- **Published:** January 1, 1934
- **Citation:** 292 U.S. 263

## Text

' SUPREME COURT OF THE UNITED STATES
‘ | OCTOBER TERM, 1933

No. 731

MICHAEL J. HEALY, CHIEF OF POLICE OF
MANCHESTER, N. H., APPHELLANT,

Us,

_ LOUIS D. RATTA. |,

APPEAL FROM THE UNITED. STATES CIRCUIT COURT OF APPEALS
FOR THE FIRST CIRCUIT.

a

INDEX

a . | Ortginal = Print
Hrsesodings 1 in U.S. C. C.A. , First PTO Teer Tree ee
EE aS Pee eee Ne (omitted in printing). . 1 ,
~ Record from. D. C/U. 5&., District of New Hampshire SPS Or re 1 1
ae
Zz. 1
ane 10 ° 10
bean Tere 14 14
Amendment to bill of complaint ep me tater ore ae oe 17 ——is«a‘B
Waiver of second and third prayers of. complaint (omitted ~ ts
i I sn Pa ate an e S 5S ir scald ok eo ee Wh is ne AG 18
Minute entry of hearing{...... ..... (omitted in printing). . 18
Opinion of the court, Le ie Dacpdiduduacanes o jangerawswns 19 18
» ’ Final ER etme bain ahs 26 26
Appendix -A Masia as 7a ev, -uidence for Reseed | on
PES PNT POET FEE POR hel. ere eT PP EP eae 28 27
Testinuenes of Louis D. Ratta.............. ' 28 28
‘Arthur T.Clements........... zs” .8
Affidavit of Louis D. Ratta......... % eye aa ee 34
eer ee rere Orr Pere 36. 36
Supplementary Affidavit of Frank J. Haessler*............. ~ 40. 40
Aanhgmnent of Tirvere...... 6... oo ccc cece ccc cco raicccece 43 42
Clerk’s memorandum as to appeal papers (omitted in ,
printing) ..... Re eT ON ree BG RSS iN AC Pe ' 44 .
Jupp & Derwerter (Inc.), Printers, Wasuinoton, D. C., Fesruary 1%, 1934. ;

“aa ; , = A

Bf . INDEX
t. 8, Original Print =
‘s Stipulation as*to record........ 0... (omitted in printing) 44
Clerk’s: certificate, 6666 ees bie tes en 46
Argimipnt and submission...00.0000,.0.-00% nu, ote) 47
Onin Wilson, J. Ca eA, RN Oe 22 4g 44
Final deeree......... PEPE POLES L ETT TAT esas eee’ es 57. —ts«SO
Petition for appeal. (6.60660. (omitted .. printing). - 57
Assignments of error...........00-::ceeeeeeee ener eens 61 51
_ Stipulation waiving bond.............-- (omitted in printing). -* 87 —
Docket entries............. Rive pe heaee 7 iin al *.2 89
Order allowing appeal.......... PAR APRS IPE PEP TTTY T S ee 93 52
Citation and service. .....0.560 6.50 ea ss (omitted in prin’ing) . 95
Proof of service of appeal papers........ oh Be ) 97
Stipulation as to transcript of record....( “ 2 ) 99 °
Clerk’s certificate. .........-.-- SET ET Sey Re 8 “101
‘Statement of points to be. relied upon and designation as to
printing record. 1.0. .....-...0:egeeerecr eerste ce ee 52
Order noting probable jurisdiction, ete......-..-.--- Pree 103 54
Stipulation to print additional portions of record. ° .« _ 1040 54
7 .
° -
2
. ~time; that said
method of selling in interstate commerce has not been and i
cannot be successful, and plaintiff’s said dealers in New
Hampshire have been almost totally unable to transact any —
business under that méthod, and as a result thereof many,
of plaintiff’s dealers have been compelled to abandon said
[fol.5] business and either seek other’ eniployment or go
without employnie:it, while a limited number who have con-
tihued to practice said plan have been unable to sell any
substantial quantity of the plaintiff’s appliances;. that
from his office in the City of Manchester,plaintiff directs
and has‘directed the operations of all his dealers in New |
Hampshire, said office being the headquaurters for the han- ;
dling of customers’ accounts, customers’ service calls and
the “supplying of said dealers with their merchandise, so
_ that all of plaintiff’s dealers in the State ef New Hamp. -
shire look to the City of Manchester as their headquarters,
and therefore, the suppressien of the selling activities of
plaintiff’s dealers in Manchester has had a state-wide ef-
fect, and has practically destroyed plaintiff’s business in
the entire state; res doer of the facts aforesaid,.a
large nunfer of plaintifs said dealers in New Hampshire
have either entirely or largely lost their‘means of livelihood .
and become impoverished am plaintiff has,been unable to
replace them with other dealers, plaintiff’s sales have de-
clineg almost to the vanishing point, and he has suffered
gyeat:and irreparable loss and damage. a

4. That ‘in said discussion of said statute with the Secre-

tary. of State’ and Attorney-General, plaintiff proposed to
said state officers that plaintiff and his said dealers in New
Hampshire be permitted without license to go from town to
town or from place to place in the same town selling or
bartering or carrying for sale or barter; and exposing there-.
for his said godds according to thé following method, to wit,
that the plaintiff and his said dealers would severally dem-
onstrate and exhibit the pgrformance of their goods by ex-

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PRs a a

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posing’ and demonstrating a:sample unit complete in all its

_ parts, and in the event an order for a similar article could
he procured from a prospective customer, the sample thus
demonstrated would be left with such intending purchaser
,as security only for the subsequent delivery of an identical
article from a sto@k not then present or immediately near

the place of sale, all such subsequent deliveties to be-made ~
xf

not earlier than the next day following the taking. of said
_ order; that plaintiff waginformed by-the Secretary of State
and the Attorney-General that such method of selling would
not be interpreted by them as a sale by sample within the
exception of Section 3 of Public Laws Chapter 157, as
amended by said Act; and that if plaintiff or his dealers
attempted to sell their goods in such fashion they would
be arrested and prosecuted. for ‘violation of said Act,
‘[fol. 6] whereby the. plaintiff was prevented from putting
said proposed program into effect.

‘5. That plaintiff has had prepared, at considerable ex-
pense,-a price lisand catalog of said goods in the form‘an-
nexed hereto and marked Exhibit A, intending to have his’
sajd ‘dealers in New Hampshire comply with the provisions
of said Section 3 by selling’said goods by sample, list and
catalog, and sought the advice of the defendant as to

whether he could safely advise his said dealers to adopt. —

that method of selling in the City of Manchester; that the
said plan of selling by sample, list and catalog:so submitted

to the defendant, is as follows: ‘‘That the dealer :would ap-~—

proach his prospective customer in the course of canvassing
from place to place and house to:house with a copy of said

catalog and price list, and exhibit thereby the line of ap- ©

pliances, parts, accessories and supplies therefor which ‘he
Was engaged in selling; that he would exhibit to the pros-
pective customer one-of the Air-Way Sanitary Systems
‘ shown in said catalog and demonstrate to’ the prospectives
customer the manner in which it was to, be used, disclose the
price and terms upon which it would. be sold and. sélicit an
_ order ; that if the prospective purchaser could be-pursuaded
to sign an order for one of said cataloged items, the dealer.
would take such order therefor and either part or all of the
purchase price thereof as might be agreed upon with the

customer, and: would fill said. order not earlier than -the*

next following day from a stock of goods not they present

“”

o

anal 4 : a -. . sent ‘ 5

ator immediately near the place of sale; dud as security to
‘the purchaser for the delivery of the goods so purchased,

the dealer would leave with the prospective purchaser the
artiele used in such demonstration, and upon making de-
livery of the article purchased, the dealer would pick up
and carry away the sample,article so left as security; that

the defendant informed the plaintiff that he had been in-

structed bygthe Secretary of State’ that unl¢ss the goods

delivered on an order taken upon the showing of sample,

list and catalog, were shipped to the purchaser from with-
out the State of New Hampshire, such selling would not
be within the exception of said Section 3, and if plafntiff or
his dealers adopt such method, defendant will be competled
to make arrests and prosecute them; that plaintiff then ad’
vised the defendant that he and his dealers-would go about
their business in their former fashion, that is, by canvassing
from place to place and hhouse to hause offering to sell or
barter, solicit orders and Wake present delivery upon all
sales procured from a stock of goods then present, and, the
said defendant ‘then stated to the plaintiff that if such
[fol. 7] method were followed he would ar rest plaintiff and

his dealers and prosecute them. @
“~

_ That said statute is in contray entiongot the state and
federal constitutions, and therefore void; that said statute*®
is in contravention of the provisions of the bill of rights of
the Constitution of the State of New Tkampshire and Ar-
ticle IV, Section 2 of,.and Article XTV of the amendments
to, the Constitution of the United States, in that by reason
of the exceptions and exemptions provided - ‘therein, and
otherwise, the.plaintiff is denied the equal protection of the

laws, is denied the rights, privileges and immunities granted

to the citizens: of ‘the State.of New Hampshire, and his
property is taken without due process of law; that the ex-
ceptions set forth in said Section 3 are arbitrary, unjust
and discriminatory, and bear. n@ relation to any legitimate
purpose of said statute; that fhe distinction therein made
between porsons selling by sample, lists or catalogs, and
others not so selling, is arbitrary, discriminatory and un-
just, and bears no relation to any legitimate purpose of
said statute; that the distinction betaweey a person selling
provisions, agricultural implements, fruit trees, vines,

shrubs, books, newspapers, pamphlets, the products of his.
own labor or the labor of his family, and the products of,

‘

’

° @ ®

©

aT

his own farm orthe one which he tills, the manufacturers
of furniture and ladders excepted, and otheg persons sell-

ing other. articles, including the articles handled by the

plaintiff and his dealers, is arbitrary, discriminatory and
unjust, and bears no relation to any, legitimate purpose of
said statute; and that to enforce said arbitrary, unjust and
discriminatory exceptions deprives the plaintiff of his

property without dhe process of law, and denies him the

equal protection of\te laws; that the provisions of-See--

tion 5 of said Act requiring the applicant to proeure a cer-

tificate of character from local town: and city officers as a

prerequisite to his obtaining a license from the Secretary
of State places an unjust burdan upon the plaintiff and
other citizens‘of other states, denies him the privileges and

. immunities of citizens of the State of New Hampshire who

can more easily procure such certificates of-character, and
places such an unjust burden upon the citizens of other
states as to deprive the plaintiff -of his property without

due process of-law, and denies him the equal protection of -

the laws; that-the fees required to be paid for, licenses ob-
tained under Sections 7 and 8 of said statute are excessive,
unjust, inequitable and unduly burdensome; that they are

so graduated and arranged that as a practical proposition -

every applicant, in order to do a profitable business, must
[fol.8] obtain a state-wide license and pay thé fee there-

for, to wit, $50.00, and such fee is all out of proportion to |

the amount of business to be done’by -any one person in
house to hatise canvassing, with the result that the plain-
tiff, has been unable to obtain dealers willing and able to
pay the license fee or fees required by said section 7 or gai
section 8; that by reason. of the unyist, inequitable and
burdensome provisions of said Sections 7 and 8, the plaintiff
is deprived of his property without due process of law;
that the exemptions provided by Section fi of said Act aré
arbitrary. unjust and discriminatory, deprite the .plaintiff,

*,¢ . — i ~ oS .
_as a citizen of Massachusettsy of the privileges and im‘

munities allowed to citizens of New HampSbire, and de-

prive him“and his dealers of their property without due
process of law, and.deny to him’ and his dealers the equal |
protection of the laws; that exemption of soldiers or sailors |
and/or their widows as therein provided, is arbitrary, un:

just and discriminatory, bears no relation to any legitimate
purpose of the statute and deprives the plaintiff of his
property without due: process of law, and denies him the.

" Or ee ee ete

equal protection of the laws; that the exemption of citizens
of the State of New Hampshire over seventy years of age

as therein provided, is arbitrary, unjust and‘discriminatory ~

and bears-no relation to any legitimate purpose of the stat-
ute, deprives the plaintiff of his property without due
process of law, denies ‘him&he equal protection of the laws
and denies him, as a citizen df the. Commonwealth of Massa-

chusetts, the immunities and privileges allowed to citizens,

of the State of. New Hampshire. °

7. That under present conditions and with the defendant
threatening as aforesaid to arrest the plaintiff’s dealers on
accoynt of all sales of such appliances where delivery is
made otherwise than strictly in interstate commerce, the

' . plaintiff’s business in the State of New Hampshire and in

Manehester is practically at-a standstill; that by reason of.

the fact that the prosecution of this business in the ordi-

nary way involves travel.by the plaintiff and his said

_ dealers from house to house into the homes, climatic and
‘ weather conditions- influence the total amount of business

to be done,. and the plaintiff’s appliances are actually sold -

in much larger quantities during the open months and until
about the first of December, when sales show a substantial
decline, and do not, revive again until open spring weather
and spring housecleaning season arrives; that. the plain-
tiff’s experience has shown that the dealers cannot and dé
not travel so freely in cold and inclement weather and that
_ housewives do: not and will not readily admit,dealers into
their houses in cold and inclement weather; that by reason
[fol. 9} of the defendant’s threats of arrest as aforesaid,

a

.the plaintiff is being unlawfully deprived of substantial |

business profits and is suffering and will continue to suffer
irreparable damage unless the defendant and the other
members of the Manchester City police force working with
and under him are restrained and enjoined from arresting

and prosecuting the plaintiff and/or any dealers now or |

hereafter employed by-him for the sale of said appliances
by canvassing from house to house as aforesaid; that jus-
tice requires that said defendant and the’ other poliee offi-
cers of the City of Manchester working with and under him
» be restrained and enjoined from interfering with the busi-
ness of the plaintiff and/or his dealers in canvassing for,
and making sales of, said appliances or ‘otherwise under

taking to uphold and, enforce said unconstitutional statute;

QQ

2

- said; and that ju

- injunction issue’ fort
defendant and the other police officers of the City of Man-

‘schester working’ with and under him from arresting or
prosecuting or otherwise interfering with the plaintiff and

~ | i Pears re.

that unless said defendant and the other police officers of
the City of Manchester working with and under him are
forthwith enjoined from in any manner attempting to en-

-force such unconstitutional statute, there is grave and im:

minent danger that the plaintiff’s business in the State of

New Hampshire and in said City of Manchester will be~
_ totally destroyed and that by réason of the time.of yéar |
and the’ approacli ‘of the winter season ‘the plaintiff will

lose a large proportion | of the year’s business and most if
not all.of his remaining dealers between the date hereof

and the middle of December ‘unless said defendant and ‘
-other police age are restrained and enjoined as afore-

thwith restraining and enjoining the

his dealers in the sale of Air-Way Sanitary Systems, parts,

accessories and supplies therefor or in any way attempting

to enforce against them or any of them the provisions of

Chapter 102 of the 1931 Laws of New Hampshire or any of

the provisions thereof. | +. @
Wherefore, the plaintiff. prays: 9

(1) That the defendant and all other police officers of
the City of Manchestér working with and under him be re-
strained and enjoined from arresting or prosecuting and/or
threatening to arrest or prosecute or othérwise interferins
with the: plaintiff and/or his dealers or any of them on ac-

count of or in connection with the prosecution by the plain-

tiff and/or his dealers or any of them of the business’ of
selling by canvassing from house to house Air-Way Sani-
[fol. 10] tary Systems, parts, accessories and supplies
therefor, or otherwise attempting to enforce the provisions

_ of Chapter 102 of the 1931«Laws of New Hampshire or any .

portion thereof against the plaintiff and/or any of his said
“dealers; | 2

(2) F ora temporary restraining order, forthwith;

(3) For an order to show cause why a preliminary urf-

| junction should not: issue pending a determination of this

case; and
&

and equity require that a temporary Ef

10 ° .
bad .
(4) For such further orders as to this Honorable Court
¢ may seem-just in the premises. :;

Fe

—— ——, by His Attorneys, Demond, Woodworth,
.Sulloway and Rogers. .. .

Duly sworn to by Louis D. Ratta. Jurat. omitted in
printing. . -

And on said-fourth day of November, A. D. 1931, a sub-
pena in due forme was issued which, thereafter on, to wit,

the fifth day of November, AyD. 1931, was returned served .

into Court.

This action was duly entered in the October Term, 1931, .

when and where the parties appeared by their respective
solicitors. _-« ;
> a

In Untrep States Disrricr Court

7 Le : ; aan
CoMPLAINANT’s MorTIon To AMEND BILL oF CoMPLAINT—-
Filed November 17, 1931—Allowed November 24, 1931.

‘ . “a . . . “a
Now comes the plaintiff in the above entitled action and
. . . . . oa . wow .
moves to amend his originat bill in equity by inserting after

Paragraph 2, Paragraph 2A, as follows:

[fol. 11] On the 14th day of April, 1931, the Governor of
the State of New Hampshire approved said Chapter 102

of the Laws of 1931, entifled ‘““An Act Relating to Hawkers

and Peddlers.’? The provisitns of this Act ate as follows:

1. Amefdment. Chapter 157 of the Public .Laws is.

hereby amended by striking out the whole thereof and sub.
stituting therefor the following: ;

r

: a
1. Definition. Except as hereinafter expressly provided, ,

the terms ‘‘hawker”’ and ‘*peddler”’ as used in this chapter
shall mean and include any person, either principal or
agent, who goes from town to town or from place to pk
‘in the same town selling or bartering or carrying for fale
or barter or exposing therefor, any goods, wares’ or mer.
chandise, ae

é;
2. Prohibition; Penalty. No hawker or peddler. shall sell]
or barter or carry for sale or barter, or expose therefor,

"

~

° 7 11

‘any goods, wares or merchandise, unless he holds a license
SO to do as herein provided. Any’ person violating..this
section shall be fined not more than,two hundred dollars,
to be equally divided between the state and the-town in
which the offense was committed. Such sums as may be.
paid into the state treasury as “penalties shall -be er edited
to the secretary of state for his 1 use in the enforcement of

‘

this chapter.. +

3. Exceptions. The provisions of this chapter relating.

hawkers and peddlers shall not apply to wholesalers or
jobbers selling to dealers only, nor to commercial-agents or
other persons selling by sample, lists, or catalOyues, nor
to,any person selling provisions, agr cultural implements,
. fruit trees, vines, shrubs, beoks, newspapers, pamphlets,
* the products of his own labor or the labor of his family.
and the product of his own farm or the one which. he tills,
the manufacturers of furniture and ladders excepted.

a a ' Applications: The secretary of state shall grant tach
license to any person-who files in his office a certificate,
signed by the mayor of a city or a majority of the s&ledtmen

of a town, stating that, to their best knowledge and belief,
the applicant therein named is of good moral character;
and is, or has declared his intention -to become, a citizen
of the United States. Such license shall: not be g eranted
to any other person. Sain

. Certificates. The mayor or idiaciaieani, before graut-,

ing aor certificate, shall require the applicant to make |

oath thdt he is the person named therein, and that he’ is

or has declared his intention to become, a.citizen of the

United States. They shall forthwith act upon such ap-

_pleation when nr ale, and shall at once issue a certificate
ee to the eas if found qualified.: ‘26 .

[fol.12] 6. Loeal Licenses. The secretary of state shall
cause to he inserted in every license a synopsis of this
chapter and the names. of such cities andotowns as the ap-
plicam .selects, with the sums to be paid fo the respective
treasurers thereof, as provided in section 7, and shall re-
‘ ceive-from the applicant one dollar for each city and town
so.inserted. \ :

wa

. Fees. very. person licensed under the preceding sec-
So tions shall pay to’ et treasurer of each city or town men-

2 es

tioned in his license the following sums before offeving or

exposing for sale any goods, wares or merchandise therein:.

For every town of not more than one thousand inhabitants,

according fo the census nex} preceding the date of his li-
> ed

cense, five dollars; for a town of more than one thousand

@ and less than two thousand inhabitants eight dollars: for -

-h town of more than‘two thousand and not more than three
thousand inhabitants, ten dollars; and for every thousand
inhabitants in-exeess of three thousand, ne dollar. The

treasurer ‘Shall certify on the face of such license the suin

so paid, which shall be for the use of such city or town.

8. State Licenses. The secretary of state, upon condi-
_tions required in section 4, shall grant special state licenses
upon the payment by the applicant of fifty doHars-for the
use of the state as a state license fee, and the person sé
licensed may’do business as a hawker or peddler in any
city or town in. this state, without furthey payments,

/9% Term; Trafisfer, All licenses issued under, the pro-
Visions of this chapter,ghall bear dafe the day they are is-
sued and shall continue in foreé one year. A license granted
under section 8 thay. be transferred by the segretary of
state, upon application sherefor, accompanied by a fee of
“one dollar attd upon evidence furnished by the appliean:
like that. required for the original granting of such license,

and the tranferee of a license granted under said seetion 8
may go.about carrying for sale or barter, exposing there-

for and scHing’or bartering any articles described therein

Within the state. The secretary of state Max make rifles

and regulations consistent with law covering the transfer
of licenses granted under said section &.

10° Record, The seerctary of state and the treasurers
‘of. cities and. towns shall keep records of all such licenses
~ypon which the sums herein provided have been paid: to
them,’ with the number of each, the names and residences
of the persons licensed and the-sums received thereon, and
all such records shall: be open for ‘public Mspeetion,

IT. Persons Exempt. Any soldier or sailor disabled in
any “war m-which the United States has been engaged, or
‘by sickness or disability ‘contracted therein or since his dis-
charge from the service because of -such service, and the

widow of any such soldier or sailor so long as she remains’

.

‘*

i

unmar ‘ried, or any ili of this state over seventy years
[fol.13] of age, shall be exempt from paying the license
fees required by this. chapter.

», Endorsing License; Exhibiting Licesse; ‘Use. of
| eee Every person licensed as a hawker or peddler
shall endorse his ustal signature upon his license. When
his license is demanded of him by-a mayor, selectmen, alder-
man, town or city treasurer, sheriff or his deputy, any con-
stable or police officer or any person to whom he sells or
offers or exposts for sale his wares, he shall forthwith ex-
hibit the same, and if he negleot or refuse so to do he shall
be liable to the same penalty as if he had no license. The
secretary of state shall, at the expense of the licensee, pro-
vide a badge for each peddler, and such, badges shall bear
the number of the license, the word ‘neddler,”? and such
other information as the secretary of state may deem neces-
sary. Kach peddler shall wear his badge in a conspicuous
place.

13. License Effective Wher ce, No license shall be effective
in any place other than the place or places wherein it au-
thorizes the licensee to operate, :

14. Revocation of Licenses. Any license granted by the
“seeretary: of state-to a hawker or peddler may be revoked
by him (1) upon conviction of the licensee of any offense
which in the judgment of the secretary warrants such re-
vocation, or (2) uipon ‘the submission to the secretary of evi-
dence satisfactory to him that, during the term of the ligense,
and acting Rader cover thereof, the licensee has acceptéd
or solicited 1 money otherwise than through a hone fide sale
or barter of soods, wares or merchandise, or has in any
nuinner_hegged or solicited ‘alms from. the public, or (3)
for any Other sufficient cause. Whenever any person is con-
victed of a violation of any provision of this chapter, relative.
to hawkers and peddlers, the clerk of the court in which,
or “trial justice by whom, such person Was convicted
‘shall motify fhe secretary of state. 1

». C ounterfeiting Licenses, ete. Whoever counterfeits
or forges a ‘license, or has a counterfgited or forged’ —
in his possession with the intent to utter or use the same ¢

true, knowing it to be. false or counterfeit, or attempts to
sell under a license which has expired or has been ‘revokéd °
or cancelled, or which has not been issued or transferred to

~14-~ : : co
; , ; *
him, or has in his possession another’s licensé with intent
to use the same, shall be punished by a fine of not more than
one thousand dollars. a. ; ‘ é

~ 16. Assistanee. The secretary of state and the state treas-

urer are authorized to employ such assistance and to ineur

such expense for the administration of this act qs the gZov-,
ernor and ceaacil niy approve, and the governor is m-

thorized to%draw his warrant therefor,

; af? .. “
[fol. 14] 2. Takes Effect. This ae slutll take effect upon
its passage, , a / w# po . :,
‘ a
[ Approved April 14, 1931.) | : =

. ?

. Louis D, Ratta, by His Attornéys, Demoind, Wood-
worth, Sulloway and Rogers.

e .

» November 24, 1931, ° ¢ ;

Within motion allowed. . ar
| George F. Morris, U.S. District Judge.
° « ’

5 2 ¥y ,
Ix Unurep Srares Disrricr Courr
J , 8

~

Derexpant’s Motion ta Dismiss ann Awswer—Filed De-
_cember 28, 1931 - oe

° a «
Now comes the defenglanut, Miehael J. ITyaly, Chief of Po-
lice, of Manchester, New Hampshire, and moves that the
, ‘above entitled bill in equity be disinissed because this case
* does. fot really and substantially involve a dispute Olgcolt
— troversy properly in the jurisdiction of this court.

Se -
1. Beeause the value of the subject matter is not alleged
“to and does not exceed the sum of three thousanek dolliirs.

2. Because the plaintiff has a plain, adequate and com-
plete remedy at law.

5.. Because of a want of jurisdiction in equit™.
And in further answer: |
- 4. The defendant admits the allegations contained in
paragraph one. —
“ ~. The defendant adniits the allegations contained in
paragraph two, . "hi

. ‘ .

Bam ot ma
ane ly ee, 2 Ps be
.

tee

A aes .

3. The v toga denies ‘the allegations: contained in

, par ine three. | a

4. The defendant ‘admits. the allegations contained in
paragnaph four, ‘ é

| fol. 1] do The defendant cadinits, thé allegations con®

tained in paragraph five:

. The defendant diales each and every shenaiion con-
Wk in paragraph six and further denies that chapter. 102
of. the laws of 193T of the State of New Htanipshire, entitled .
‘An Act Relating to ‘Haw kers and Peddlers,’ is in contra-

vention of the state and fede rabconstitutions:: and therefore
> F

void, Co, e 6

é
7. The. defendant. diesin the allegations contained in
i agr aph seven. . ¢

‘The defendant further states in answer that chapter
iw 2 ‘of the Laws of 1931 of*the State of New Hampshire en-
titled “An Aet Relatingsto Nawkers and Peddlers”’ is cons

‘sistent in whole. ‘and/or. in part with the constitutions *of

theeUnitéd States and the State of New Hampshire; that.
the cexceptiogs set forth: in section three of said act are
reasonable and just; but‘that if said section, in whole or i.
part, is unveasonable, arbitrary and discriminatory ‘it i:
severable; in whole and/or in part, from ‘the remainder of
said act; that said section raged is but a detail and not
an essential part of said act; that said section therefore
is* separable and severable from ‘thé balance of: ‘saig) .act
Withoft affecting the substantial ‘accomplishment of, the

- purpose for which said act was passed ; and that even if.

said section, or any part ‘thereof, is unconstifutional it
therefore does not invalidate the remainder of said- “act, but
merely renders nugatory that portion of the a¢t.

. That the provisions of section 5 of said act, requiring
Pd applicant to procure a certificate of character from the, ,
focal town or city officers as a prereqtisite t6 his obtaining

\ license from the secretary of state, does. not, place an
naj burden upon the plasntiff because. such req irement
is a reasonable regulation for the pr otection of the public
inethe. exercise of the police power of the State of New
Hampshire; and sineé the purpose of said certificate is ‘to
prevent’ such persons from being licensed as would abuse

?

16 ; 7 : ree . | ; : : ‘
the privilege and would engage in dishonest, unfair and
fraudulant practices in pursuance of their tradé as hawkers
and peddlers. “ ;

10. That the provisions of sections 7 and 8 of said stat-

ute, which require applicants and licensees to pay certafn
fees, are just and reasonable; but that if said sections, in
whole or in part, are unreasonable, arbitrary and discrimi-
natory they are severable, in whdle and/or in part, from the
remainder of said act; that said sections plainly afebnt a
detail and not an essential part of said act; that said sec-

tions therefore are separable and severable from the bal- °

[fol. 16]-ance of said act without affgcting the substantial
accomplishment of the purpose .for which. said ‘act was
passed; and that even if said sections, or any part thereof,
are unconstitutional. they therefore do not invalidate the

_remainder of said act but merely render nugatory that por:

tion of the act. ,

»~ a as ° | |
ak If, That section 11 of s&id aet, which exempts from

. c ae yr + qe
payment of license fees but not from obtaining a license,
solgiers and sailors disakled in war and their widowe ané.
citizens of this state over seventy. years of age, provides

reasonable and just classifications and exemptions; that”

the plaintéff does. not belong to any of. said: classes and
therefore is not prejudiced by:the enforcement, adminis-

tration or operation of said section; that as v the plaintiff —

it is therefgre immaterial whether said seeNon diserimi-
nates against persons and ‘classes other than those men-
tioned and established in said section.or denies other por-
sons equal protection of the law inasmuch ag the plaintiff
has no interest affected‘by the enforcement of said section.;
that only sevgn licenses have been issued by the secretary
of state of Ne® Hampshire to persons over seventy vear's
of age; and that said section is of comparative little im-

, portance, rie “* fs

That if sajgl section, in whole or. in, part, is unreasonable,
arbitrary and discriminatory and if the -plaintiff is per-
mitted to champion the grievances of members of the classes
stablished by said section whether or: not the plaintiff .is

‘a member of any of: said classes, said section is severable,

in whole and/or in part, from the remainder, of said act; °

that said: section plainly is but.a detail and not an e@s-

sential part of said act and is separable and severable from
the balance of said act without affecting the substanti®l

N
y

$35 ee

DS PEF PE TOSS VP Poets

s

-_

ne a 4 * | ree ee,

accomplishment of the piirpose for which said’ act -was
passed ; and that even if said section, or any part thereof,
is undonstitutional it therefore does not irivalidate the’re-. ,
mainder of said act but merely. renders migatory that por: |
tion of the act, ; : : ee

12. That the plaintiff ahd the Air-W ay Company, for |
- whom the plaintiff is employed as a distributor, and their
agents.have not paid-the fee or secured the license to -he-
come hawkers and peddlers under the act; whereas in truth
' and.in fact said plaintiff and-all his agents are hawkers and:
peddlers within the meaning of said act and should there-
foretbe licensed and pay the statutory fee: for said licenses ;
| QO that said plaintiff does not ther efore come into vour honor -
. abk’ court with clean hands.: ane

13. That said plaintiff is not engaged in the business of a
hawker and peddler within the terms of” said act and has
never been threatened with proseéution for, violation of
[fol: 17] said act; nor has your defendant ever attempted
to enforce the provisions of. said act against. said plaintiff ;

that said’ plaintiff’s rehts therefore are = directly. and
certainly fe aha ably" affected nor in any Way prejudiced ,
_ by said act. ,

14, That ‘said plaintiff does not belonix to any of sata
classes alleged .to be discriminated against and that said
act cannot deny plaintiff» equal rights, privileges and 4m-
-munitieS as'a member of aid classes and that as to said
plaintiff the entire act and any and/or all of its provisions:
are immaterial. = ‘

‘Wherefore the defendant: pr ays that this bill may be dis-
missed, Ae o
, Michael’ J.., Healy, by Ilis Attorney, Thortiton
Lorimer, Assistant Attorney-Gene1 ‘al,

"I certify that I have this day sent a copy of this answer
fo Demond, Woodworth, Sulloway cand Rogers, attorneys
for the petitioner. - ”
** Thornton Lorimer.

*

‘December 28, 1931.

Strate or New Hampsnine, m ee, ,
‘Merrimack,’ ss: ot pic eee -¢
‘ ‘ ; cmntmrnam, 1931

: : 7

. 4
18 Se ie | +
Subseribed and sworn to this 28th day of December, 1931.
Before me, . = ° “—
-J. Blanche Newhall, Justice of. the Pea ace,
' =. a

in Unrrep STATES Disrrier Counr™ | (
23, TIS2

AMENDMENT’ TO BIL OF iain: Filec Jeneery

lt is hereby agreed that the above entitled bill-in equity
may be amended . by inserting at-the end of paragraph 5
anew paragraph da as, follows:

[fol.18] ‘That the complainant’ s profith on his New ‘Hamp-
shire business prior to the passage of the statute set forth
in paragraph Za of the bill of complaint. as amended,

amounted to in “exces@ot ‘three thousand dollars ($3,000); ae

that his loss ‘of business due to the enforcement of said |
statute already exceeds three. thousand dollars ($3,000);
that unless he obtains the relief prayed for in this petition,
his loss on-aceount of the enforcement’ of this provision
by the respondent will exceed three thousand dollars
(43 000); that this controv ersy involves in éxcess of three
thousand dollars ($9,000), exclusive of interests and costs.
» Demond, Woodworth, Sulloway and Rogers, Mttor-
-neys for the Complainant. Thornton Lorime?, As-,
sistan] Attorney -General, for the Respondent,

[fol. 19] In Unitep States Districr Courr

Oprxton—Filed November 3, 1932.

ee es

‘Before Bingham, (* J., Morris and Letts, D. JJ. :
& i
Lerts, a. :

This is a bill in equity brought by Leuis D. Ratta, a resi: P
dent of Spripeticld, Massae husetts, to enjoin the Chief of
Police of the City of Manchester, New Ilampshire, from
interfering with canvassers employed in sellifig vacuum
cleaners from house tg house in Manchester. The action
calls in question the constitutionality of the New Hamp-
shire ‘hawkers and peddlers’? statute. . °

ie are Sine mae 19

é
The complainant, whose home office is in*the City of
Springfield, purchases under contract from the manufac-
turer a certain-household vacuum cleaner and has for his
territory for distribution the States of New Hampshire,
Vermont and part of Massachusetts. His method of selling
has been that of employing convassers on a commission
*basis who sell from house to house deliyering the utensil
then and’there, if sold. In the City of Manchester the re-
spondent ‘has undertaken to prevent the complainant's
tanvassers from selling the article in the manner described
unless and until sue ‘h canvassers bbtain licenses under the
New Hampshire act relating to ‘‘hawkers and peddlers.’
Sections 2 and 3 of the act provide as follows:

ot.

* 9. Prohibition; .Penalty.. No hawker or peddler- shall *

sell or barter or carry for sale or barter, or expose therefor,

any goods, wares or merchandise, ynless he holds a license

so to do as hergaprovided. Any person violating this sec-
tion shall be fined not more than two hundred dollars, to be
equally divided between the state and the town jn which the
‘offetise was committed. Such sums as may be paid into
the state grees isury as penalties shall be credited to the secre-

. tary of state for ‘his use in the enfor cement, of this chapter.

ad

3. Exceptions. The provisions of this chapter felating

to hawkers ‘and peddlers shall not-apply to wholesalers or,
jobbers selling to dealers only, nor to commercial agents
or other persons selling by sample, lists; or catalogues, nor
[fol. 20] to any person selling provisions, agricalturak im-
plements,s fruit, trees, vides, shrubs, books, _hewspapers,
pamphlets, the products ef his own labor or “the labor of
Js family and the product of his own farm or the one which
ne tills, the manufacturers of furniture and ladders ex-
cepted.’ as es feat

Sections 7 and fix the amount.of the license fee-required
and make provision for both local and state-wide licenses,
limiting the duration thereof to one year,

Section 11 provides as follows:-

‘11. Persons Exempt. Any soldier-or sailor disabled in
any war in which the United States has been engaged, or by
sickness or disability contracted therein or since his div]
charge from the service because of such service, and thi
widow of any such soldier er sailor xo long as she remains

o

. . ° a
OTA PLAINS SEE RR CR MES LU SE ae

eres
wary

Sn rh peoeigh aT) ook Oe Gade ee ee a ke

“ .%

oe ‘ wee °° ° = . . .
unmarried, or any citizen of this state over seventy years
of age, shall be exempt from paying the license fees. re-
quired by this chapter.’’ |

The complainant contends: that, the entire statute is: un-
cénsitutional because of contravening® provisions of Article
IV Section 2, of the Constitution of the United States and
Article XIV of the Amendments thereto. fake

The respondent at the outset -has challenged the jarisdic-.
tion of this Court, first,on the ground that the amount in
controversy is insufficient to vest jurisdiction because of °
diversity of citizenship and, second, for lack of jurisdiction
in equity. It is contended that. individual ‘canvassers would
have an adequate remedy at law in the opportunity. to raise ~
the constitutional questions here presented by wav of de-:
fense in’event of prosection under the act. It is unneces-
Sary to here.indulge in an extended labor of either of thes

~ points. The evidence establishes that there is a threatetied
interference with the complainant’s business wherein prop-
erty rights are invelyed— -H-in-Wwell- established that equity
has jurisdiction under ‘such vircumstances to enjoin the
prosecution of a criminal suit if the act under which such
_- Prosecution be threatened is unconstitutional =.
, Terrace v. ‘Phompson, 263 ULS., 197, 214, 215.
Packard v. Banton, 264 U.S, 140,
" ] a t

It is also well settled that -in determining whether there
he involved. the ‘necessary Jurisdictional amount of three
[fol. 21] thousand dollars, exclusive of interest and costs,
any recurring or continuing’ expense should be capitalized,

Western & Atlantic R. R. y. Railroad Commission,
261 U.S. 264, 267. Ae
Packard v. Banton, 264 U.S. 140, 141, sutpra. ° b

‘ .

In this case it is clear from the testimony that an enforee-
ment of the previsions.of the act, by requiring the’ individ-
; ‘ual-canvassers to take out licenses and pay the fees pro-
vided under the statute, would contront the complainant
with the alternative of either “bandonitig his business as
now carried on in the City of M chester or himself assum-
ing the burden of paying the. ticense fees: for many, if not
most, of those. employed. The testimony establishes that
many of these men are without adequate means or would
be reluctapt to undertake fhe employment if the license fee '
by them had,to be paid. ° : : ao

’

ue es

7 , \
4

ee

a

oi } a pat 21

The abandonment. of the complainant’s business would
clearly involve property rights of a value in excess of the
jurisdictional amount and were he to pay: the license fees
in order-to continue his business it would entail an expendi-
ture of at least three hundred dollars per year which, if
‘capitalized at five per cent, would amount to Six thousand
dollars. ,

There alone remains for consideration the question of
the constitutionality of the legislation. This must *be
examined from the point of view of its validity as an exer-
cise of the police power and not as ar eyenue or tax measure.
State v. Express ( ompany, 60 N. H. 219. ;

?

We are not concertied with the general question of the
right of the:state to require all itinerant vendors under
reasonable restrictions and regulations to be licensed. It
is well settled that the state may assert such authority
where such regulation “inv olves, no discrimination as he-
iween individuals’ or tlie origin of the merchandise to “be
sold. In the case of Kmert v. Missouri; 156 U. S. 296, Mr.
Justdye Gray, PMhough de: ling spec ifigally with the applica-
tion of the commerce clause, reviews historically the asser-
tion and recognition of this powe The question béfore us
ix whether the New Hampshire* statute is void because —
of-the diseriminatory character of cértain of its provisions.

Two sections or clauses of the ( ‘onstitution of the. U nited
States restriet the power of the states to discriminate in
tlre application of the so ealled polite power. The first of
these is Seetion 2 of Article IV of the original Constitution,
It dee ‘lares ‘the citizens of each state shall be entitled to
[fol. 22] all privileges and immunities of the citizens in the
several states.’? This proyjsion restricts the state (except
under special circumstances) from discriminating against
the citizens of a sister state in favor of its own cftizens.* |
The Supreme Court ‘of New Hampshire has over a long
period consistently applied this vonstitutional principle in
respect to legislation in that state. In the case of State v.
Lancaster. (1884), ¢ 63 N. H. 267, 270, the court held that a
statute requiring. citizens of otlier, states to procure a
license to sell trees, shrubs, ete. whiclr could be sold by. the

_- citizens of New Hampshire without a license was in conflict

* This interpe etation.is qualified when applied to foreign
corporations. ve .

- . P ———
29

with Article LV, Section 2, of the Constitution of the Upited-
—e-¥ and again in the case of State-v« Wiggin (1888), 64
1. 508, the court ‘had before it a statute relating to .
ities for the sale of lightning rods. This statute re-
quired the payment of a fee of five hundred dollars by citi-
zens of other.states while permitting such license to be _
granted for a fee of one hundred dollars to ene who had
been a.citizen of New Hampshire for five years. Ina brief
opinion by Bingham, J., he coneluded ‘ond in this respecte
the citizens of other states are not given the privrleges and
immunities of citizens of this state,’ holding that the act
was in violation of Article LV, Section 2. . .-
See also Compionwealth vy. plana, 19> Mass, 262.

In, the present case the. provisions of the New Hampshire
‘hawkers and peddlers’” statute diseriminate in favor of
citizens of New Hampshire in but one respect. Section ‘11
entitled ‘Persons Exempt’? provides ‘for any citizen of
this state over seventy vears of age.”’ Under this provi-
sion a citizen of New Hampshire if seventy years of age,
ceun sell merehandise as a canvasser or peddler within the
state of New Ifampshire wifhout paying a license fee,
whereas a citizen of any other state,of the same age, W ould
be unable to do so, While this parte war ‘provision of ‘the
act is seemingly of no great practical importance as foy
persons of that age \ would be engaging In such employment,
it does nevertheless encroach upon the clear prohibition of
Article IV Section 2. The Constitution in respect to safe-
guarding the equality of privileges and immunities between
citizens of the several states does not recognize or permit
of any encroachment predicated pon such a basis or
CX@USE. - . ° -
— The second ‘provision of the Constitution against dis-. *
crimination in the exerctsé of the police power by a state is
to-be fgund in Section 1 of the XIVth Amendment :

(fol. 23] ‘*No state shall make or enforce any law which
shall. abridge the privileges or immunfties. of citizens of
the United Stafs,.1ior shall any state deprive any person 1
of life, liberty, or property, without due process of law, ner

deny to any per son within its jurisdiction the equal and
tection of. the pind “a te

The provisions of the above quested section, in so. far as
« they relate to the” tbridgement - ‘of the privileges or im- °

sf -

ee

) 23

munities of citizens ond the-provision containing the due

process clause, apply to all, wherever domiciled. The x

equal protection clause, however, relates only to pergons

within the jurisdiction of the given state. In the present @ ~

case, as the complainant is a resident of the State of Mas-
enthenitin it would: seem that the only provisions of Section
1 of this Amendment which he’ can invoke in challer nging
the constitutionality of the statute are the due process
clause and the privileges and immunities clause. By the
, standard of these two —s we will consider the pro-
_visions. of Sections of the New Hangpshire act and the
bese exemptions included in Section 11. “y
No useful purpose would be served by under taking to de-
Fine privileges and immunities as tséd in that clause of the

_ Amendment or in. distingishing the svope of application. of,
that clause from the due process clause. They ‘are supple-

* mental provisions overlapping and inter related. The clear

interxdment of Section«1 of the.Amendment is to protect .

persons in the enjayment of those rights which by long
usage and custom have come to be looked upon,as funda-
mental, and to safeguard thiem against unreasonable and
arbitrary invasion by ‘state action. The ‘Supreme ‘Court
has on numerous occasions refrained from dissecting See-

tion 1 into separate inhibitions and has looked — the.

section as.an intrasupplementing whole.
_ In the case of Dunean v. Missouri, 152 U. S.-377, 382, the
court said: .

‘*But the: panier See and immunities of citizens of the

‘ United States, protected by the Fourteenth Amendment?
are privileges and immunities ar ising out of the nature and
essential character of the Federal government, and granted
or secured by the Constitution ; and dueprocesg of law. and

the equal protection of the laws are secured if the laws

. operate on all alike, and do not subject the individual to an
arbitrary exercise of the poweys, of government; *. * *”’

y . . ‘Again in the case of Giozza v. Tiernan, 148 U. S. 657,
Mr. ‘Chief, Justice’ Fuller, speaking for. the court, in it part
- said: :

[fol: 24] ‘‘The amendment decs not take from the States —

those powers of: police that were-reserved at the time the
or iginal C onstitution Was, adopted. ° Undoubtedly it’ forbids

wv .

se

tee

Fe eee ee Ce

Sears MOTE Muy
.

Bogs ain as 2

sali ae a

ere

any arbitrary ‘deprivation of life, liber ty or property, and

secures equal. protection to all under like circumstances in
the enjoyment’ of theiggrights ; A «es And dne process of
law withinzthe mee inifibot the amendment is secured if the
laws operate on all alike, and do not subject the individual
fo an arbitrary exercise of the powers of government,”

‘In the case of Connolly v. Union Sewer Pipe Co., 184
U.S. $40, 559, the court, in reaffirming the doctrine of an
earlitr decision (Barbier. v. Connolly, 113 U.S. 27) said:

‘We have also said: “The Fourteenth Amendment,. in’
decjaring that no State ‘shall depri ive any: person of life, |
liberty or property, without due process of law, nor deny
to any person within its jurisdiction the equal protection
of the laws,’ undoubtedly intended not: only that there
should be no arbitrary deprivation of life or liberty, or
arbifrary spoliation of property, but that equal protection
and security should be given to all under like cireumstances
in the enjoyment of their personal and civil rights; that
.all‘persons should be equally entitled: to pursue their hap-
piness and acquire and enjoy. property; that they should
have like access to the courts of the country fot the pro-
tection of their persons and property, the prev ention and
redress of wrongs, and the enforcement of contracts; that
no impediment should be interposed to the pursuits of any
one except as applied to the same pursuits by others under
like circumstances; that no greater burdens should be laid.
upon one than. are laid upon others-in the same ealling and
condition, and that in the administration of criminal justice
no different or higher punishment should be-imposed upon
one than such as is prescribed to all for like offences.”’

Y =

A specific application of these principles w: as made by the ..
Illingis Supreme Court_in the ease of. Marallis, et al, v. City
of Chicago, et al, June 24, 1932, reported ji in “The United
States Daily” July +13, 1932: The court held-an act of the .
legislature to be unconstitutional whieh. would exempt from
obtaining a hawkers ‘and peddlers license all former sol-
diers and sailors of the United States who had been hon-
orably discharged from service. The court, in an extended
opinion wherein are assembled numerous authorities, ob-
served in ‘respect to the attempted classification :

25

e ,

‘‘The soldier, or sailor, after his discharge, returned to
civil life, became a part of the community. in which he lived
[fol..25] and enjoyed the same rights and was subjected to
the same burdens as other citizens similarly cireumstanced

legally in the same jurisdiction. ”’ oe : ‘

See is ica case Fuller-Brush Co, Vv. ‘Town of Green
River, 60 Fed. (2d) 613.

Ii examining the aet now ‘before us we find it replete .

with {he most arbitrary of attempted classifications. and
exémptions. Under the provisions of Section 3 of the act
the itinérant canvasser may sell from house to house any
kind of merchandise without’a li¢ense if he uses only a
sample or catalogue,.making the delivery.- on another oe-
casion; but if he sells an article not included among those

exempt, such as a vacuum cleaner, and delivers at the time.
the very utensil ‘which has been, demonstratedgfo the cus- |

tomer, it is neeessary for him to obtain a peddlers license.
Without a license one may peddle provisions which would
presumably include fgod stuffs and groceries but may nol
without a license sell and deliver at the time bathroom

fixtures, tooth brushes or combs. He may without a license,

as provided in Paragraph 3, peddle fruit trees, vines and
shrubs, but to peddle fir trees, onion Sets or annual plants

forthe garden, if not the product of his own farm, he must
‘havea license. “One may by his own labor, or that of his
family, make wheelbarrows and hand sleds and vend them
without a license byt to peddle a porch chair or ladder a
ligense must first be obtained. One may make children’s
toys or other articles and sell them without restrietion but
if he were to purchase the same class of articles fromfi a
neighbor he could not peddle them unlicensed.

Under the provisions of Paragraph 11 of the act, not.

exempting from the necessity of. obtaining a license but
providing exemptions from the-necessity of paying a fee
for the license, we find that the widow of a soldier or sailor
need pay no fee but that a widow of a mechanic would /be
required to pay the exaction. The citizen of. New, Hamp-

- shire, seventy years,of age,, is required ‘to pay no fee but

the citizen of Massachusetts desiring to ‘peddle in New
‘Hampshire, though more than sevent* yéars of rye, must

pay the litense fee as-well as the indiv idual sixty-nine years ~

4—731 . 1% ae §. 3 Bog
v ‘. rF ’ >

‘

ta z A

e “
-
ee Oe OOOO oo eeeeeeee

7 ; ° ". .
of-age wherever-he may chance to reside. These suffice to

illustrate the wholly unreasonable and arbitrary charaeter

of the classifications attempted under the provisions of
both Paragraph 3 and Paragraph 11 of the statute. They
bear no relation whatever to the proper object -or subject
matter of such legislation, :namely, the protection of the

-[fol. 26] public. They result in an. arbitrary and unequal

application of restrictions to persons” in legal status sim-

- larly circumstaneced, - g

There is in respect to.this legzslation no oceasion ta apply
the doctrine* that if different sections of a statute are in-
dependent of each other that which is unconstitutional may
be disregarded and unobjectionable provisions enforced.
To invoke that principle hére, would necessitate striking
out Sections 3 and 11 wherein the legislature has speei-.

fieally expressed an intent that certain classes of persons
shall not be required to pay a fee and in Section 3 that.
le

persons selling certain classes of merchandise shall not be
required to obtain a licen¢t. This court cannot ‘disregard
these sections without the resulting effect of imposing the
burden of obtaining licenses and the burden of paying fees
upon ceftain classes that the legislature has declared shall
not bé required so to do., The result is that, the statute
must be regarded as an entirety and in thaf view must be
adjudged to be unconstifutional and therefore void. ,
Consistent.with these conclusions, the prayer of the com-
plainant will be sustained. Findings, conclusions and a
decree may be submitted for settlement and entry, includ-
ing an award of costs té the complainant and reserving to-
the respondent his ‘Proper exceptions. ae

ew»

In Unirep States District Court.
FuNaL Decree—Filed and Entered N Jovember 29, 1932

This cause having come on for hearing before Bingham,
(. J. and Morris and Letts, D. JJ. on the fourteenth day
of June, 1932; and it appearing to the Court that. the alle-
gations of the plaintiff’s petition are‘true; that the New

Hampshire ‘‘Hawkers’ and Peddlers’ ’’ statute, so-called,

referred to in the petition and being Chapter -102 of the
Session Laws of New Hampshire, of 1931, is unconstitu-

o
’

men

*“Tfol. 28]: APPENDIX A

tional; that it is in ,contravention of the provisions of
Section 2'of Article kV of the Constitution ofthe United

States, and denies the plaintiff the immunities and priv-_
ileges allowed to citizens of the State of New. Hampshire ; —

that it is in contravention of the provisions of the Four-
teenth Amendment of the Constitution of the. United States
and deprives the plaintiff of his property without due
[fol. 27] process of law,; and that justice requires that the
prayers of the petition be granted,.it is ther eupow ordered,

adjudged and decreed

(1), Thatethe’ defendant and aH othey police offiders of the
City of Manchester working with and under him be re-
strained and enjoined from arresting or prosecuting and/or
threatening to arrest or proseeute or otherwise interfering
with the plaintiff and/or his dealers ‘or any of them on fAc-
count of or in connection with the proseeution by the plain-
tiff and/or his des ilev‘s or any of. them of the business’ of
selling by canvassing from house to house, Air-Way Sani-
tary Systems, parts, accessories and supplies therefor, or

. otherwise ater yes 8 enforeg the pr ovisions of Chapter .
102 of the 1931 Laws ‘\f New Hanipshire or any partion

theregf against the plaintiff and/or any. of his said dealers:
and ‘

(2) That the “complainant recover from the. respohdent
his costs, to hefaxed by the Clerk of Court. ;
George TH. Bingham, C. J.; George F. Morris, D. J-;
Ira L loyd Letts, D. J.

A true record. \

Attest: Thomas B. Donnelly, Ulerk.

«

Ts UNITED Sr. ATES District Court

Stipulation as to Evidence for Record on Appeal

It is hereby stipulated and agreed. by the abéve parties
that the evidence of fhe testimony at the shearing in the
United States District Court for the District of New Hamp-
shire on June 14, 1932 is as follows :

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At the opening of the trial petitioner’s counsel stated in
accordance with his understanding with counsel for the

‘respondent: s

S

‘The only issue of fact.between the parties to this peti-

tion relates to the ‘question of whether the jurisdictional
amount of $3,000°is involved in this case. The petitioner’s
claim that $3,000 is involved is based on two propositions:
That losses either have or will shortly amount to the juris-
dictional amount and that this statute goes on forever, theo-
retically—that substantial losses €an be shown whereby the
value of the business will he substantially lessened and that
these losses are due to police activities. :

“““We will intgoduce evidence this‘morning on the issue
of whether the police activities have interfered with our
conduct of the business,"so as to account for the losses and

either by depositions. or an agreement we will submit a_

statement as to what our actual -losses have been, after
the close of the hearing and within a few days. There is
no agfement between the parties on the question of Jaw
involved and both sides: will submit written arguments.’’

Louis D. Ratta testified on direct examination that he
was a resident of Springfield, Mass., and distributor under
contract of the Air-Way Sanitary System with headquar-
ters at Springfield, Mass. Wis territory consisted of
the states of New Hampshire, Vermont and western Massa-
chusetts. The goods are billed to him at a specifie price
and he hires his ow agents. Manchester was the: main
office for fhe New Hampshire territory and was managed by
Arnold T. Clements. In May and June, 1931 his business

suffered a slump, the reason being the enforcement of the

hawkers and peddlers l:&xagainst the agents whereby they.

wad to get a license or sell by sample and deliver. at a future
date. Mr.Ratta-has been unable to get any of his men to
take out a license. There was a tremendous turnover in
his help. A number 6f. inexperienced men refused to be-
come salesmen because it tould cost them fiftv dollars for
a Fooam and those who accepted emplovment lost a lot of
sales hecause they found in many eases when they returned
to make delivery that the eustomer had changed her mind.
[fol. 29] The fifty dollar license fee is necessary because a
local license is impractical as a man doés-not sell-in any
one locality. but follows leads given to him by-customers

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car : a ae _ 29.
7 ag Ne a? ‘ )
which carry him te many » differ ent towns s@that a State li-° | .

cense is necessary. Prior té- the enforcement. of’ the
hawkers and peddlers law the dealers left with the ctistomer
the machine used for demonstration. After,the enforce-
ment of this law, the agents sold by sample, making the de-
livery at a future date or left the vacuum cleaner with the
customer as security for the future delivery of another
‘acuum éleaner in two or three days.’ The agents ran into
sales resistance* under this system because of difficulty in
taking old machines i i ‘trade, because tlte customer did not
wish to be witkout any cleaning apparatus pending deliver ms
and because they d>monstrated om machine and had to
deliver another—some people see a systém work and wish
‘to purchase it and object-to the shipping of another system >
feeling that it ‘might not be, up to the standatd of the .
demonstrated sample.. Experienced salesmen are aececus«
-tomed fo make deliveries on a one eall system. This new
system ‘seemed ‘to them to require duplicate. time to com-* °
plete a sale and they are not interested. Mr. Ratta has ~
not been able to employ any ageuts willing to purchase a
license—all that he could employ as agents were men with- ©,
out experience who had heen-out of work for a lone time,
men that were desperate, who Would fry to sell his product.
Daying 1931 and1932 the Vermont business showed a profit.
The Massachusetts business carried along fairly well. The
Massachusetts and Vermont business during 1931 and 1932
has held up to the average production bifore, whereas in
New Hampshire and in Manchester rehash period the
Imsiness decreased. The results of the business in Ratta’s + €

4 entire territory, during tte first ‘half of 1931 showed losses:

"of thirteen hundred-dollars and. for the second half of 1931

i loss.of forty-seven hundred dollars and during that time r
Massachusetts and Vermont. atleast held their own.
Ratta knows of nothing else except the enforcement of this
act to éause the loss. He did not have the right manager
in “Manehester—he was all right under the old system but .

, Was not strong enough to hire men under the new system +
wd even lost the older men—and charf¥ed dbout’ the first
or middle of December 1931. The situation in Mane ‘hester
affected his business elsewhere because he trained and

- hired all his men for New Hampshire at die Manchester
officggind not having the proner number of men functioning |
in Manchester ff seemed to break down the morale of new

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7

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30 es ” bs ure:

men who knew nothing about the business and did not see
the older men getting the business they had in. previous
‘[fol. 30] vez ars—**bédcause they ‘talked in: the office or had

sales meetings.’’ He transferred’ four men -to Vermotit.

‘-from the New Hampshire district t during the last vear or
so becuse in Vermont the men would not be bothered by
the hawkers and peddlers law and could make théir deliv-

—eries contemporaneous with the sales. .These four men

‘ame from the northern part of New Hampshire. Ratta

te ied to induce these men tp remain in New Hawpshire but*

they got to the point where they did't have money to carry
on their bnsiness. . They have done very well in Vermont
and have. heen working in Vermont ainee the first of last

i»

October. Ratta has had eighteen vears "experience selling: —

from house to house and states as his opinion tliat a man

cannot sell as effectively when he cannot sell the article
dle ‘monstrated but must arrange for subsequent delivery of
another similar article. The'selline erews eannot produce
as much selling by sample as they ¢ can by selling the article
demonstrated. ° ,

» On cross examination Ratta testified that his dealers wert
from house to house and from town to fown canvassing
and demonstrating. “Me was thirty-nine vears old and not
#warveteran. Before this bill in equity was brought Ratta
had approximately thirty-two to thirty-five men workine at
the Manchester office at one time last vear and at the time
of the filine of the bill approximately a dozen were emploved

‘selling from hense to house in the ¢ itv of Manchester. The:

hawkers and pede llers aet went into effect on April 14, 1931,
The complainant did not have his inen licensed under the

old act nar had any offiejal asked Ratta to have his men:

licensed. At the date of the hearing Ratta had six Man-
chester residents working. ip the Manchester offiee operat-
ne under the new plan of selline. Ratta was sure that the
volume of sales from January 1, 1931 to June. 1, 1931 was
more than the velume of sales for the same period in 1932.
Ratta did net whelly attribute his loss of business in New

Hampshire to the business depression. He. said the husi-

ness was there but he had not been able to get it because
che had net been able: to eet ‘the: men to ‘eo and get
the business—‘the business has béen there, but we
haven't heen able ‘to eet-it.’’ Some of the lone of busi-
ness is attributed {o fn ie business conditions but Ratta

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. did not know exactly how much. He had tried to have his
agents licensed but they could not afford to pay the fee.
Neither he nor the Air-way people could buy‘licenses for
the men because the turnover is so ereat—he could not buy
_a license for a man that had never sold: a thing , not. knowine
‘whether he is going to like the business or make good—he
could not spent fifty dollars for a license not knowing °

{fol. 31] whether the man would be snecessful. Tis busi-&

ness suffered a loss of practically five thousand dollars dur-
ing the last six months of 1931 and up to.the date of hear-
ing in-1932 and ‘about gne-third of this loss—fifteen hun!

dred dollars, sixteen hundred déllars—was attributed to the

loss -of sales in Manchester. He stated that it would not
have paid him to have taken ont licenses for the six men
‘in Manchester instéad of losing fifteen hundred dollars. He
would have lost the monev—the Air-Way loaned the money
to him—ha could not have borrowed it to gamble in suéh a
way. -The six men who had Afopped from the Manchester
-list of agents had not heen very successful but. they did sell
afew systems. They did not make enough money for Ratta*
to warrant buying them a license. Tf the six men had re-
mained the first sjx months’ profits prohablw would not have
continued under the new plan of selling. Ratta’s personal
profits on each system were less than one dollar but he
“could not say just ow muceh. lis gross profits were seven
dollars a system but.road expenses, office, telephone, office
equipment, telegrams and stenographers had to come out
of that and this overhead fluctuates. He could not sav how
many units were sold in Manchester in 1931 nor how much.
his agents sold during that year but his records would.

show. (By agreement with counsel, stated in court these .

records were to he introduced by affidavit.) Ratta’s Imsi-
ness was to direct, manage and supervise throughout his
field, holding,sales meetings, interviewing men, eding out
“and canvassing and selling machines. The Air Way Com-
pany financed him in his business and he worked under a
contract with them and partially under their supervision.
He was hired by one of the company’s cxeeutives who
could also fire him. He blames his necessity to change
nuinagers in Manchester onto the hawkers and peddlers
law, he vot alone under the ok method of doing business
but could not earyy it on under the new, policy, could not.
xet the men to operate properly, he and they were weeping

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31.

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32 . 5 ee 8

on each other’s shoulders, but he is a good enough man so
that he is still with Mr. Ratta in, another capacity. He
stated he might have had to change his manager even
though licenses were taken out and thus permitting his
agents to continue doing business in the old way of making
deliveries on demonstration because he could not sell the
idea to the agents and spend fifty dollars apiece on them
without knowing that they were going to make good. All
of the New Hampshire business is done, from the Manches-

ter office. Ratta is an American citizen. His agents’ all

have to be bonded by a sureky company and éach. agenf has

to give his last occupation, where he has worked for five

(fol. 32] years, four references where he has never worked °

and unless these references are satisfactory he cannot con-
tinue in the employ. The four’ men who. went to Vermont
from the northern part of New Hampshire would not pay
a fifty dollar license fee although Ratta paid them pretty
xood checks. They left because they wanted to make de-
liveries at'the time of demonstration and did not like to sel]
by sample. One of them lost his first two sdles under the

new method. The machines were shipped to the customer

and-both were rejected beeause the customer-did not have —

_the down payment. Chief Healy of Manchester said that

Ratta’s agents would have’ to have'a license to operate in
Manchester. oe 1: a,
- On redirect examination Ratta stated that the profit made
on a machine varies and: depends largely on the,volume of
business—that he had a regular overhead in Néw Hamp-
shire (the expense of the Manchester office} regardless af
tlre volume of business done and that that overhead would
remain g@neral, | *
Arthur T. Clements on direct examination testified that

che lived in Manchester, New Hampshire. He was sales

manages of the Manchester office for Louis D. Ratta. Tt

was liis job to employ salesmen. He had experience as a’

house to louse salesman for eteveri years and cathe to work
for Mr. Ratta two vears and four months ago and to the
Manchester offiee in December 1931. He-had_ seventeen
salesmen in Manchester at the date of hearing and had em-
ployed twenty-six sinee he had been in Manchester who had
since left the employ. He had ‘been able to ire about :one
out of four or five applicants, He stated that’ the hawkers
and peddlers law as enforced tremendously affected his

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hall
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ability to hire salesmen because ‘a real salesman prefers to
deliver on the spot—because otherwise the customer may

change her mind pending delivery and would cool off

whereas after shé had acgepted delivery and used the ma-
_ chine she would become enthusiastic. Oni telling applicants
for jobs that they would either have to sell by sample or
take out a license they wouldn’t consider the proposition
at all. They are interested until he tells them’ the plan and
then they are not interested. He has not aS Manye sales-
-~men in Manchester as he wishes and has been trvine: to eet
amore, yee Py, ae,
On cross examination he stated that since he had been
ii Manchester business was just about the same as before.
In the city of Mancliester alone the volume of sales was

probably twenty-five per cent in the last six months of”

1931 compared to the volume done in the first six months
of the same-year. He was in gharge’of the Manchester
-office since the first of December 1931. Fér the six months
[fol. 33] ending with June 1, 1932 the figures show a large
_-loss-in net revenue due to increased overhead, trying to get
new men, increased telephone calls, advertising costs and
road expenses to keep fhe men enthused or keep them on.
It would be impossible to pay the fifty dollar license fee
because the turnover in salesmen is so great, He had been

gle to hire and train more men than his predecessor but-

ccause of*the enforcement of the agt by the police he had
been unable to make thé men go out and do the job. He
had never been in trouble with the police and would know
6f his men ever being in trouble. He had tried to hire the
best type of men. He was personally employed by and
works: for Louis D. Ratta and not the Air-Way Company.
Business conditions in Manchester on the class of stuff thn
he sells is very good. There are men, who work under ideal
‘business conditions that he can sell to. The depression
affects salesmen to the extent that talk of it demoralizes
them but the class of custofhers with whom he deals—ho
can sell to. e

Thornton Lorimer, Attorney’ for the Appellant.
~Demond, Woodworth, Sulloway & Rogers, Attor-
neys for the Appellee. ~*~

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. Arripavig or Lotis D2 Rarra ;

I, Louis D. Ratta, plaintiff in the #bove entitled action,
on oath depose and say that I have turned over to Frank J.

~ Haessler and hé hay had access to, all the books and records

relating to the conduct of my-business, ‘and the books and
records accurately teflect the fMyancial. transactions relat-
ing to my said business except that no aecount is made of
Various sums disbursed by me’ from tine ‘to time bvp Way
of so-called loans and prizes fo assist discouraged dealers
and to stimulate Sales; that my books and records ‘do not
showa distribution or allocation of telephone and traveling
expense items to any partienlar distriet or territory (ex-

“eept that no such items in any substartial amosnt ean be

attributed to the Massachusetts business) so that it is im-
possible to upportion. or alloeate such expenses so as to
show with any degree of accuracy the amount of these ex-

perses_ or the’ amount of net profits or, losses t6 be fairly

allocated to any particular district or territory: that prior
to the middle.of T9351, as aforesaid; it was my regular priae-

| fol. 34] tice to make a swing through my whole territory

by automobile on au average of @nee a months that such
frip would involve travel to Manchester,.sonfe time spent
there with the local manager and with the various de:lers
working under him, and a trip through the northern part
of New Hampshire, calling on variois dealers; that trom
there IT would @ontinue on into Vermont, confer withAmy
local manager: there and with vartous dealers’ working
under him, and return to my home office at Springfield,
Massachusetts; that sinee the middle of 1931, as aforesaid,
my New Hampshire business has engaged a very much
larger part of my attention to the extent that T have been
unable To give the proper aftention to my , Massachusetts
business; that T have still continued to make my, momhiy
trips through my New Hampshire and Vermont territory,
as theretofore, but in addition I have had to make two or
three (and not less than two) additional trips-each month
to New Hampshire, in order to keep my dealers and hold
my bisiness.in New Hampshire; that most of these addi-
tional trips have been to Manchesier and have not included
other portions of the State; that instead of spending a por-
tion of a day in Manéhéster and with the, Manchester deal-

ers, as former lv, | have had to spend from one to two ditvs
with the Manchester dealers on these trips; that these ddi-:
tional trips to Manchester have been due to thesfact that it
- hats taken additional effort, time and energy and, rpense:
‘to keep the dealers satisfied and to keep them from throw-
hie up their jobs under the new selling conditions neces- *
sitated by reason of the attempt of the local authorities to
enforce the New Hampshire Hawkers and Peddlers Act,
so-called; that it has been necessary to. continually and re-
peatedly assure-them that so lotig as they continued to sell
by sample they would not be arrested, and to hold frequen}
méetings, whieh always involve dinner expense, to reassure
the-men and encourage them, and it has often heen‘ neces-
sary: to advance to various dealers small swims of money for
easoline’ or other current expenses to enable them to con-
tinue operations, and to keep them on the job; that until the
filing Of this bill.in equity on November 4,:1931, T was un-
able to get any assurance from the loeal authorities that
the sale by sample method of doing business, approved by
the State authorities when’ said bjll was filed and pending
this action, would be accepted by the lo@al authorities as a
compliance witlr the statute, and it was only as a result of
very extensive effort and expense on my part that | was
able to kee ‘py organization together; that since that time
I have still foufd it nee essary to make anid additional trips
to Manchester in order to keep up produc tion that said ad-
[fol 35] dition trips vary somewhat’ is expense saccord-
Ling to the leneth of time which I have to spend with mi
sald New Hampshire dealers; that With one or two exce ))-
tions where it has been necessary to spend only a short
time in Manchester, said additional trips have cost mein.
cluding gasoline and oil, but not imeluding anything for
Inileage on iy automobile; not less than $35.00 a trip; that
there has also been additional managerial expense prop-
erly attributable to the Manchester territory on account of
the fact that I had to employ a new manager (the Mr.
Clement who fextific d) on account of the disturbed situa-
tion in New Hampshire; that from November, 1931, fo
June 1, 1982, IT was able to employ ‘him on a* commission
basis with a minimum guarantee of $25.00 a week, which
involved some additional cost over the cost of my former
Inanager; that in erder to retain his services*] had to make
a new arrangement with hin on June 1 a which in-
~,

volves the aieiabia Os him al a straight salary of $200.00 a
month, in addition to which I have to pay: for gasoline and
oil which he uses in connection with the business ; that Mr.

Smith (Mr. Clement’s predecessor) was local managey in
Manchester during the Months of November and December,

193@, and through the month of October, 1931; that his
earnings. as local manager, during November and Decem-
ber, 1930, totalled $68.00 and averaged $7.73 a week, dur-
ing the first six months of 1931 totalled $522.00andaver aged
420,08 a week and during the months, of July, August, Sep-
tember and October 1931 totalled $96. 00'and averaged $5.41
a week, so that there has been and will continue to bea very
substantial additional. managerial expense. on’ account of
the necessity ‘of employing a more capable Mancliester’

manager to handle the disturbed situation there arising out
of the activities of the local ‘authorities with reference to

the so- «i ed Hawkers and Peddlers Act.

* Louis D. Ratta.

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[fol. 38] ini ' $Sehedule II |
‘(Average Number of Dealers and Average Production of Dealers)

' Average
Average gross
No. sales per

' Period © Territory , dealers dealer
1930 Manchester............ 19 $581.24
° Gan uxs 33 884.70
ba Massachusetts... ....... 29 442.17.
Last half — if 6,
1931 Manchester............ 6 - 321.50
° Be * fy err 22 543.11
_ ek. Ra ee 30 607.21
’ ; Massachusetts. ........ 12 252.37
1/1/32 to 4/30/32 Whole territory........ 72 602.13
Norte: See note to schedule I.
[fol. 39} Schedule III

(Comparative Earnings of Four Men Transferred to Vermont
by Request, See Record, p. 14)

Period Tertitory Gross sales

C. A. Dorman...... First half
: 1931 New Hampshire. .. $241.55
. Vermont......... 924.35

s Last half P
1931 New Hampshire... ........

. ; -. Vermont......... 639.75

3. J. Pillotte....... First half
1931. New Hampshire... 2,608.65
F ee Vermont......... 1,409.80

Last half
1931 New Hampshire... ........

. Vermont. ........ 546 . 50

Ii. Rhodenizer...... First half
1931 New Hampshire. . . 431.50
. PENS Fd 5c6bes de nceels

Last half | 2

1931 © New Hampshire.” . 164.00
. th Vermont......... 413.50
Guy A. Rich........ Firsthalf '
a : 1931 New Hampshire..- 2,694.08
. Vermont......... 1,846.65

Last half

1931 New Hampshire... 721.05

« Vermont......... 1,968 .60

co ye

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eee we Ps VLE E ASN LO BCE AWOL Lag eh oa T5 wales ode.

40 i ee 1 ee ate me

_ [fol. 40] ~ Ix Unite States District Court

” «
SUPPLEMENTARY AFFIDAVIT OF FranNK J, Harssurr

I, Frank J..Haessler, of New Haven, Connecticut, on oath
depose and sayin addition to my-affidavit of June 29, 1932,
that I am a full time employee of the Air-Way Electric
Appliance Corporation of Toledo, Ohio, and am a special
factory representative of the said corporation. I have been
employed by the said Air-Way Corporation. alone. since
427, and since that time have devoted my full time to tlie

Air-Way Corporation business as special factory repreé-_

sentative of the company: I am not a certified publie ac-

countant. ‘The figures that appear on my affidavit are’

taken exclusively from commission vouchers, form: 47,
Which are part of thé set of standard forms sold by the said

Air-Way Company to its distributors throughout the coun-—

try, and used by them in their returns to the said Air-Way
Company. | a ™
The net loss on all business exclnding non-canvassing
sales for the first. half.pf 1931 is $627.66. 1. do not know
what part of this loss of $627.66 is attributable to the City
of Manchester. It is possible to determine this, except pos-
sibly for advertiging expenses, but it would be a very com-

- plicated task-and would involve weeks and possibly months

for one man to détermine what part of this losseof $627.66

is fairly attribugable to the City of Manchester. The same .

is true of the total loss on all .bustmess amounting Jo
$4,702.60 for the latter half of 1931. .

Mr. Ratta’s territory in 1931 and 1932 has comprised,,
sinee January 1, 1931, the entire states of New Hampshire
and Vermont, and the Western portion of Massachusetts.

[ have not determined the arhount of expenses properly.
chargeable to “Manchester because, as. doted above, this
would be,a very complicated task. No expense items shown

_on my former affiflavit are allocated to any particular part
of the territory, the affidavit showing simply grosg expense

for the whole ferritory. Ido not know the amount Ratta
has lost in Manchester and my affidavit does not show this
hecause of the tremendous amount of work involved in
ascertaining this figure, as noted above.

At present, in Western Massachusetts, there are two full
time men and about six part time men working as. dealers
under Mr. Ratta for that territory. In Massachusetts in

\

41

1930, there-was an averagé of thirty-nine agents who made
sales and received commissions for such sales. In the first
half of 1931, there was an average of twenty-nine agents
and jn the sosond half of 1931, there was an average of
twelve agents working in the “Western part of Massa-
chusetts. ,

(fol. 41] I said in Madea affidavit that items of tele-

hone and traveling lexpense,: in anv substantial amount,
] ,

camot be attributed to the Massachusetts business. T do
not know the exact amount of such items fairly attr ibutable
to the Massachusetts business. My statement is based on
the fact that there were a small number of agents it Massa-

chusetts in 1931 and that Mr. Ratta’s home office is in that .

territory.

3 .

4 .

.
? .
.
,

-it erred in entering a deerdg

by sickness or disability contracted therein or Since his dis
gharge ‘from the service because of such service, and the
| fol. 91] widow of any’such soldier or sailor so long as shu
remains unmarried, or any citizen of this state over seventy
years of age, shall*be exempt: from paying the license fees
required by this chapter. $5

Since the bill originally contained a prayer for a tempo-
rary injunction, if presented a case for invoking a statutory
court, so-called, under See, 266°of the Judicial Code. > Be-
fora the hearing, however, the prayer for a temporary -in-
junction was waived; bit the case Was finally heard by the
district judge of New Hampshire, together with a judee of
the Circuit Court of Appeals and, an additional rags
judge, as though it were a proper case for hearing by
statutory court. ©. ‘

On ‘tn appeal to the Supreme Court under Section 205
of the Judicial Code, it was pointed out that the Supreme
Court had no jurisdiction since the praver for : temporary
injunction was waived. Healy v. Ratta, 289 U.S, 701.

Prior to th decision of the Supreme Court, a er, the
appellant filed a petition for appeal to this court, which. had
been allowed, presumubly by the district judge of New
.[ampshire, | . :

The opinion of the court, though ‘drawn by the ; additional
district judge, was joined in by. the district ju ge of New
Hampshire, and the*judgment of the Distriet” Court was
signed by alk three judges hearing the case.

In the defeydant’s assignment of errors on appeal to
‘this ‘court he assigned as error the establishment of a statu-
tory*court under Section 266 of the Judicial Code, and that
of permanent injunction
against the defendant. In his brief and argument before
this court, however, he did not press The assignment of

error that a statutory court had no jurisdiction in the’
premises, and relied only on the following assignment of

errors:

“7. The court erred in refasing to grant respondent's

motion to dismiss the bill in equity because the complainant’

has a plain, adequate and complete remedy at law.

2. The court erred in refusing to grant respondent's
motion to dismiss the bill in equity because thé value of the

a eS NR hl BN AO a AR
’ J 47.
Ps
subject matter in controyer sv an not exceed the sum of
three thousand dollars, - -

(fol. 52] 3. The court erred in refusing {o grant Tespond-
ent’s métion to dismiss the bill in equity because of a want
of jurisdiction in equity. :

4. The court erred in holding that the statute of the state
of New Hampshire enacted April 14, 1931, entitled ‘An Act
Relating to Hawkers and Peddlers’ is in entirety in con-
travention of the Constitution of the United States, espe-
cially of article 4, section 2 and ef the fourteenth amend-
ment to said Constitution and therefore is im entirety ‘un-
constitutional and void.. 7 |. .

2

. The court erfed intholding that section 3 of said act
is in contravention of the Constitution of the United States,
especially of section 1 of the fourteenth amendment to said
( ‘onstitution,

~The court erred in Rasa that sectide 11 of said act
is in contravention of the Constitution of the United States, ’
especially of article 4, section 2 and-of section 1 of the four-
teenth amendme nt to ‘aid Constitutions

7. The court erred in entering the decree of injunction
against respondent,

It has: been held in such instances that the joining of the
two additional judges in a decree does not render the judg-
ments void. © Cannonball -Transportation Co. v. American’
Stages, Inc. et al., 53 Fed. (2d) 1050. By waiving this as-
signment of errors relating to the lack of jurisdiction in the
statutory court, we think the appellant must be held to have
accepted the judgment as, though yendered by th. District
Judge of New Hampshire and as unaffected dy the un-
hecessary joinder of the two additional judges.’

The assignment of errors relied; upon may be grouped
under three heads: (1) the necessary jurisdi@tional amount
was not involved; (2) the case presents no ground for equi-
table relief; and (3) that the New Hampshire statute did
net violate See, 2 of Article TV, or Sec. 1 of the fourteenth
amendment to the Federal ¢ ‘onstitution. ;

*The necessary «jurisdictional amount is alleged“and we
think it sufficiently appears that it is involved. It is not
hecessary that it appear that the : appellee i is required to pay
the jurisdictional amount annually in lie ‘C1 ixe fees: nor do

*» Jf o

, : NN

~~

eo.
a ‘ - ~ Oe eta oe Urea tS See CE tne, See _— i |
‘ - ; ;
i ; aa |
‘ 48 ° ,
6 v

we think it necessary-in this ease to capitalize the annual ~
license fees in order fo fulfill the j Jurisdictional requirement,
‘The appellee claims the right: to conduct his business free
from wrongful interference by the appellant, and seeks the
[fol. 53] protection of that right now and in the future. It
is the value of the object to be gained that is the cog of the
* umount involved. Glenwood Light & Water Co, v. Mutual

* ‘Light, Heat & Power Co., 239 U.S. 121; 126; First National
Bank of Columbus, Ohio vy, Lotisiana Highway Commis-
| sion et al., 264 U.S. 308, 310; Hunt v. New York Cotton Kx-

change, * 215 U. S. 322, 336. .

The evidénce disclosed that prior to 1931 the gross sales
* “of the appellee in New Hampshire were nearly £90,000,
which were larger than in all_the rest of the territory as-

3 signed to him, and that his neteprofits in 1930 in the entire
a territory were overy $11,000, Following the enactment. of
+t” the New Hampshire Hawkers ‘and Peddlers law, his profits
fell off, and his business throughout the ‘entire territory
“@ showed a loss. While it is not poSsible to determine from
the record to what éxtent the falling off was due to the
different method requifed .in. tr: ansacting his business in
order to conform to the Act of 1931, the appellee testified

es

y that to comply with the law would entail niuch additional
expense’ and would result ine condyeting his business at a
° loss. - °

It is not necessary, however, for. him to wait until the

ralue of his right re: sches- the jurisdictional amount, if. it
has not already done so. Scott.v.-Donald, 165 U.S. 107, 115:
Hunt v. New York Cotton Exchange, supra, at page 6,

While it is a general rule,that equity will not enjoin the

= enforcement ‘of eritninal law s, It will do so wher property .

rights are involved and are jeopardized by the enforcement
of an unconstitutional law, unless the complainant has a
clear, adequate remedy at law.

By reason of thie effect a compliance with the Hatite | has
had ypon his business, we think he has no ‘adequate remedy
at law and ‘is entitled. to equitable relief. It is urged that
his agents could pay the license fees under protest and in
an action at law recover them back if the statute is void:

appears from the undisputed evidence that he ean-
not find agents or salesmen, many of those applying being
‘inexperienced in this kind of business, who will undertake
such employment if obliged toxpay an annual fee of #50 ;

oa

t ¢

’ ° ¢

49

and as a result the* apppllee would be obligéd to pay the
(fol. 54} fees for all his salesmen, in New Hampshire.
“With the changes in. salesmen, owing to the nature ofthe
business, due to unfitness or inexperietice, an -enforeemeat
of this‘law would inevitably result in conducting such busi
ness at a loss, as it has already done. If he reeqvered the
license fom Deriel, it would not adequately compensate him

for the losses sustained in the meantime in comply with

the law. . .

It is also urged that the appellee could -inv oke the De-
claratory. law of New Hampshire and obtain a j¥demen!
as to-the validity of the law. Faulkner v. City of Keene,
85 N. H. 147. °° Whether suéh an action would be full and
complete, or can be -termed an adequate remedy at law
which will*bar a proceeding i in equity, is doubtful. At least
no such yemedy Was "aVailable to the complainant in the
Federal Courts. Liberty’ Warehouse (Co. v. Grannis, 273
U.S. 70, 74; and See. 267 of the Judicial Code has refer-
ence ‘to ‘the adequacy of the remedy on _ law side in the

Federal Courts; Smyth .v. Ames, 169. U, . 466, 516; Chi-

cago B. & Q. Railroad Co. v. Osborne, pat U. aye 14, 16;
Risty v. Chicago, R.-I. & Pace. Ry. Co., 270 U. . dT, 388;

Henrietta Mills v. Rutherford County, 281 U. = 121, 126.

It is virtually conceded by counsel for the appellant that
Sec. 11 exempting citizens of New Hampshire over 70 years
of age from paying any license fees ‘violates See. ‘1 of
Amendment XIV of the’ Federal Constitution. If’ this
were the only unconstitutional provision it might not af-
fect the entire act. See. 3 of the Act, Kewever, contains so
many. discriminatory provisions ‘and unreasonable classi-

fications that clearly deny the complainant equai-protec-
tion under the law and deprive him of equal privileges
with venders of other articles of mer chandist, and so vitally,

affect the entire act that we think the’act as a whole must
fall. Terrace et al. v. Thompson, 263 U. S. 197, ‘ 214, a
Packard v. Banjon, 264 U. S. 140; Truax v. Raich, 239° U.
33; Real Silk Mills v. Portland, 268 U. S. 325.

The act cannot ‘be sustained as imposing ay excise tax
as the New Hampshire constitution does not authorize’ this

form of taxation. State v. U. S.& Canada Express (Co., 60 -

[fols. 55% 56] N. H. 219. It can only be sustained as an
7731

~

a

‘

exercise of the police powers to safeguard the publie health,
safety, morals, or to promote the general ~welfare.

A statute that permits one to sell Tlousehold articles
from house to house by sample, but not to deliver at time
of sale without a license; to sell and deliver at the time of
sale fruit trees, vines and shrubs without a licerise, but not
_° evergreen trees, shade tres, strawberry plants, or rhubarb

. , or asparagus roots; which permits a farmer to peddle with-
out a license the fruit he raises, while one who does not

x raise them may not; which permits a manufacturer to sell
without a license some articles of household use, but not
furniture; which permits the sale of provisions, but not of
4 shoes, brushes, combs, needles or thread, unless the product
of the salesman’s own labor; which permits the sale of
. hooks, newspapers and pamphiets, but not of magazines;
1. +whieh- permits -without-a-license-the- sale from house to
house of hoes, shovels, secythes or rakes for the farmer, but

not a Vacuum cleaner for the housewife, cannot be sus-

s tained as promoting the health, safety, morals or welfare
_of the public, and clearly deprives the complainant of his
constitutional rights and privileges secured to him under

! Art. IV and the fourteenth amendment of the Federal Con-
stitution. Truax v. Raich, supra, at page 41; Connolly v.

7 Union Sewer Pipe Co., 184 U. 8. 540, 551; Gulf, Colorado
= & Santa Fe Ry. v. Ellis, 165 U. S. 150,°155; Home Tel. &
| ‘Tel. Co. v. City of ‘Los Angeles, 227 U.S. 278; Bliss’s Peti-
‘tion, 63 N. H. E 3»; State v. Lancaster, 63 N. H. 267.

The decree of the District. Court is affirmed with costs.

[fols. 57-60] In Untrep States Crrcuir Court OF APPEALS,
First A{mRcUIT ~ ;

Fina Decrer—November 10, 1933

This cause came on to be heard October 4, 1933, upon the
transeript of record of the Distriec Court of the United
States for the District of New Hampshire, and was argued
by counsel.

Upon consideration whereof, It is now, to wit, November
10, 1933, here ordered, adjudged and decreed as follows:
The decree of the District Court is affirmed with costs.

By the Court.

Arthur I. Charron, Clerk.

[fols. 61 &62| ws Unrrep Srates Court or Apreas
: *
AssIGNMENT OF Errors—Filed December 1, 1933

Comes now the said Michael J. Healy, Chief of Police
of Manchester, New Hampshire, appeHant in the above en-
titled cause and files the following assignment of errors
upon which he will rely in the prosecutioni of the appeal
| fols. 63 & 64] herewith petitioned for im said cause from
the decree of this court entered on the tenth day of No-
vember, 1933. |

. The court erred in holding that the statute of the state
of New Hampshire enacted April 14, 1931 entitled ‘*An
Act Relating to Hawkers and Peddlers’’ is in entirety. in

contravention of the Constitution of the United States, es-
' pecially of article 1V, section 2 and of the fourteenth
amendment to said Constitution and therefore is in en-
tirety unconstitutional and void.

2.°The court. erred in holding that section 3 of said act

is in contravention of the Constitution of the United States,
especially of article IV: and section 1 of. the fourteenth
“amendment to said Constitution.

3. The court erred in holding that section 11 of said
act is in contravention of the Constitution of the United
States, especially of article IV, section 2 and of section 1
of fhe fourteenth amendment to said Constitution.

4. Because of the aforementioned errors the court erred

in refusing to grant the motion filed by the defendant to

dismiss the bill in equity.
[fols. 65-92] Wherefore appellant prays that the said de-
cree may be reversed and for such other and further relict
as to the court may seem just and proper.

(Sed.) Thornton Dortmer . Attorney for Appellant.

November 29, (1933. “
Novembe 29, 1933.
Strate or “New Hampsume,

Merrimack, ss:

I hereby certify that I have forwarded to Demond, Wood-
worth, Sulloway & Rogers, attornéys for appellee in this
action. a copy of.this assignment of errors. .

~ Subseribed and sworn to before me. (Sgd.) Marion
G. Alexander, Justice of the Peace.

os
%
h. -

5

‘52: |
-[fols. 93- 101] Ix Unirep States Circuit Court or APPEALS ">
Ompee ALLOWING Aprzat—December 16, 1933

Thef pellant in the above entitled case having maa
for t\fallowance of an appeal in this cause to the Supreme ~
Court*of the- United States from the final decree made and
entered in this case by the United States Circuit Lourt of
Appeals for the First Cireuit on the tenth day of November ‘7
1933, and from each and every part thereof, and havin
presented and filed his petition for appeal, assignment of
errors, prayer for reversal, and a stipulation. waiving bond
on appeal, pursuant to the statutes and rules of the Su-
preme Court of the United States in such case made and

provided; :
‘ It is now here ordered that an pare be, and the same
hereby is, allowed to the Supremé Court of the United
States from the .United States Circuit Gourt of Appeals
for the First Circuitin this catse, as provided by law, and
it is further ordexed that the clerk of the:court appealed
from shall prepare and certify a transcript of the record,

' proceedings, and final ‘decree. i in this cause and transmit.the
same to the Supreme Court ‘of the United States, so ‘that
he shall have the same in said court within thirty days of

_ this date.’ . )

_ Ry the Court. ss eee, :
Arthur I. Charron, Clerk. --
_[fol. 102]. Unirep ‘States SuprREME Court
DEFINITE STATEMENT OF THE Points oN WiicH APPELLANT
INTENDS To-RELY A¥D OF THE Parts or THE Record WuIcH)
id NkKs NECESSARY FOR THE © NSIDERATION T HEREOF —
led: Jan 19, 196

A. The appellant intends to rely following points:

_ 1. ‘That the Supreme Court of the United States has jur-
isdiction upon this appeal to review the final decree of the
United States Cireuit Court of Appeals for the First Cir-
cuit in the case of Michael J. Healy, Chief of Police of Man-
chester, New Hampshire v. Louis D. Ratta, No. 2823.

2. The court erred in holding that the statute of the state
of New Hampshire enacted April 14, 1931 entitled ‘!An

+ = ede :
Act Relating to Hawkers and Peddlers”’ is in entirety in
contravention of the Constitution of the United States,

especially of article IV, section 2 and of the fourteenth

amendment to said Constitution and therefore is in entirety *
unconstitufonal and void. ;

3g Che edurt erred in holding that section 3 of said act
,is in contravention of the Constitution: of the United States,
especially of\article FV and section 1 of the, fourteenth |
- amendment to\said Constitution, : ef) |

4. The cour erred in holding tlt ‘section 11 of said act
is in confravefttion of the Constitution of the United Statés,
especially article IV, section 2 and of se¢tiqn 1 of the
- fourteenth yfendment ti said Constitufion.

5. Because of. the ‘aforementioned errors the court ued
in refusing to grant the motion filed by the defendant to dis-
miss the bill i in equity.

B. The parts of ‘the record which appellant t hinks neces: .
sary for consigeration of the above points are as. follows:

1. The bill of complaint and amendments thereto.

2. Degendant’s motion to dismiss and answer.

3. Opinion of the District Court by Letts, J.

4. Decree of the District Court. \ ,

_ 5.eAssignmentsof errors relied upon in. appeal from Dis-
trict Court to Circuit Court of Appents as set forth i in opin-
ion of Wilson, J. ‘ :

(fol. 102a] 6. Opinion of the Cireuit ‘Court of ia by
Wilsan, J:

ef, Cries. slictelna-the aaneak from the Civeuit Court of
Appeals to the Supreme Court of the United States.

8. Assignnfent of errors in the appeal from the Circuit -
Court of App gals for the First Circuit to the ‘emesis
Court of the Uhited States. :

9. The statement: particularly disclosing the basis. upon
which appellant contends that the Supreme Court of the
United States has jurisdiction upon appeal te review the
‘ final decree of tlfe Cireuit Court of Appeals in the case ‘of
Michael J. Healy, Chief of Police of Manehester, Néw

>

Hampshire, v. Louis D. Ratta, In Equity No. 2823, consist-

ing of thé statutory provision sustaining said jurisdiction:

the statute of the state of New Hampshire, the validity of
which is involved; the date of the decree sought to be. re-
viewed ; the nature of the case aril rulings of the court and. -
the cases sustaining jurisdiction df the United States Su-
preme Court. . ‘

» Thornton Lorimer, Attorney for pee ay 7

‘Jaunery 11, 1934. 7”
eS Semen 11, 1934, fo
‘State orf New HampsnHire, ‘ ‘Soe
Merrimack, ss:

Service is hereby acknowledg ed and accepted by Demond,
Woodworth, Sulloway and Rogers, attorneys for Louis D.
Ratta, appellee in this’ case, of ‘‘definite statement of the

*. points on which appellant intends to rely and of the parts
_of the record which he thinks necessary for the considera-___
tion’ therent,?*__—__--—-——"
‘Louis D. Ratta, Appellee, by Demond, Woodworth,
Sulloway and Rogers, by Jonathan Piper.

[fol. 102h] [File endorsement omitted. ]

[ fol. 10: 3] tion Me Court OF THE Unrrep STATES”

oa

— Norm: PROBABLE JURISDICTION, ETC.~-February 5,
1934

In this case probable jurisdiction is noted. The atten- —
tion of counsel is directed to the question, among the other -
questions presented by the appeal, whether the amount,in
controversy is sucly as to sustain the jurisdiction of the
District Court.

. .
a re ‘

[fols. 104 & 105] Supreme Court or THE UNITED STATES « -

4

Sripunarion ‘to Print ApbpITIONAL PorTIONS OF Hucons-—
Filed Feb. 12, 1934

-

7. Testimony at hearing on | June 14, 1982,

“8. Affidavit of Louis D. Ratta. Atiaavit® of Frank J.
Haessler. Supplementary affidavit of Frank J. Haessler.’’.

Thornton Lorimer, Assistant Attorney-General, At.
torney for Michael J. Healy: Jonathan Piper, At-
torney for Louis D. Ratta. »

[fol. 106] [File endorsament omitted]

® Bidens on cover: File No. 38 334. U.S. Cireuit er
of ‘Appeals, First Circuit. Term No. 731. Michael. JJ.

_.. Healy, Chief of Police of Manchester, N. Hé Appellant, vs.

Louis D. Ratta. Filed td 19, 1934. File No. 731,
O. T., 1933.

v (¢€ 4 : ‘ ‘

(4972.0), —

ae

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0063%3A1. Public record. Not legal advice.