# Transcript of Record — Breard v. Alexandria > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0054%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1951 - **Citation:** 341 U.S. 622 ## Text * cia pe teem erat goa ie No. 399 - ae JACK i. ‘BREARD, APPELLANT, st be | (omitted in printing) S.- 9 Klerk’s wo or a "(omitted in ee 2 Tepe Court of Louisiana. canon ewes ‘ : , Pa 8 SRRSeee Pree J “e Ce ee ee 8S Ee OEY FE Ke OO HE OR s]os ceeunnere Bleu parts of the. record he ated 2 SOLE CGutpay wean Ws = to Pp. eens Ese Jeno Pa Diwan (xa), Parra, Wasunnarox, Dd. C., Tax. gost 1951. es 2046 eam 7 ; ee] - : Mi tg ; EAS RA .. vs. ; are ais x eee ‘cry OF ALEXANDRIA ee | is . . 5 > . mee AR - ° 4 >” « i ‘ : ‘ - - 3 , 5 ‘ “4 ‘ 7 z ‘ ‘ . . aS : % x : + 2 es ¥ . . 5 ‘ 4 ; . . bate 4 ¢ ‘ m i acetate ae cts ted aiatins _- “ . {ore eh a ge? hy A emery, say peor’ Dinette Daceramrencg te Pave \ : . . ‘ a : an s “ i a . . Pw OZ) es, deat: kK City of Alexandria: eam came > and appeare ; : “ines eit Hoses to eam) | | "+ Tn-violation of the Ordinances: of: | be i Louisiana, in such cases made and pr i the peace and:dignity of the same, and prays that the aforesaid Jack “ity ue ' % eas peak with seoprding: ‘to, law. ie : Signed Alfred Hall, bye Sworn te vst subeoribed’ before n me e this 29th Ks of tt une, | 1949, “pupae & era Soe recone g Dispositi ion on salled.’ ‘Defondant. a pets aad isa Not Guilty. we | bere and found guilty, and ntenged as follows : $25.00 or ays. | ie 4 yh Noticeiof Appel given in open court. Appeal Bond pred oat $100.00 and aces pesties Supreme Court, ty - fore ey "Gas Bie City iden Witnesses for City, Altrea Hall. | ‘[fol. 2) Appearance ‘Bond: : $100 00. / Officer: Stafford J. Riche: : Besos Officer : Alfred Halt ‘ 1--399 | fteneii rd may. he arrested. | i acini renal cee “ Ce : Ri ae - mas yee 2 Nath a os oN MEARS rere .« (fol. 3] Crry Counr or Avexanpaté Warp; Parise or Rarroes, . ST oe -. , . Srars or Lousuwa PRS ssa ae [File end rsement omitted. ] . : | E- ‘“. Crry ov Avexanpria, Louisa, OR eR eS SiGe Us ah an he ee kt RR ae - Jack H, Baranp -_ “Mo the Honorable, the City Court of Alexandria for Ward One, Parish of Rapides, State.of Louisiana; “ _. Now into Court through undersigned counsel, com s Jack. iH. -Breard, made defendant in the above numbered and - . entitled prosecution, who, before arraignment, ‘and with — - . full reservations of all of his. rights to further, move, demur _ or otherwise plead to the affidavit. herein filed against him, - _ with respect to the charges therein laid, respectfully shows | this Honorable Court that the affidavit upon which this — a prosecution is basedshould be declared illegal, null and = void and that said affidavit should be washed and set aside, and held to be of no further effect for the following, among other. reasons, to-witr. > © sf Ke L Dafendant, a resident of and icf his head- - quarters at Dallas, Texas, is.a regional répresentative _ Of Keystone Readers’ Service, Inc., ‘a Pennsylvania. §& corporation with its main office in the City-of Philadel: phia, Pennsylvania, and in furtherance of the business -of such corporation is, and has been for many. years, ~ _ engaged in house-to-house solicitation of subscriptions for nationally known and distributed magazines and — periodicals all of which are printed and published in [fol 4]- various states: other than Louisiana. Hach subscyiption order is sent by mail to the proper pub- , lisher, who, upon aeceptance of same, sends the ‘partic-_ - Ular magazine or periodical by mail directly to the | -. subscriber.’ The defendant was engaged in such house. © to-house solicitation in. the City of Alexandria. at the /. time of his arrest. Ee See pee ye _... 1 2. Penal Ordinance No. 500, as amended, of the City of Alexandria prohibits, inter alia, the practice of * - et '. Ps . “ . Pd a ce DS * ue ; - : : Ms PRO sac fi : ; era oy : ay at K f\ going in and upon the private residences’in the city by __° golicitors and others without the prior consent of the : owners or occupants of such residétices for the . ir - pose of soliciting orders for the. sale of goods,.wares, ‘and merchandise. ‘Such solicitation without prior con- = _ gent is declared to be a nuisance and is punishable as | | 8. Said ordinance violates the due cr a mala of “the Constitution of Louisiana (Art. I, Section 2) of the Fourteenth Amendment to the Constituti x United States because, among other rea - “nance arbitrarily, unredsonably and unduly burdens’ and curtails and in ‘effect, denies the fundamental .. right of the defewdant and others similarly situated | to engage in a lawful private business or occupation. — _ "4, Said ordinance, as applied te defendant and others similarly situated, imposes af undue or discrimina-— tory burden upon interstat . commerce, and in effect js tantamount to a prohibition of such commerce, in _* “violation of Art. I, Section 8, Clanse 3 ofthe Constitu- "Hon of the United States.” /° > path . ,[fol.5) 5. Said ordinance, as applied to defendant and others similarly situated, vidlates Art: 7, Section 3 | “of the Constitution of the State of Louisiana and. | Amendment I and Amendment XIV, Section 1 to the Constitution of the United States, in that it abridges” the freedom of speech or of the press because, among — other: reasons; it piaces.an arbitrary, unreasonable _ and undue burden upon the well established method of ~~ distribution and cirgnlation of lawful magazines and ” periodicals; and, iv effect, is tantamount to a prohibi- > ae ie _ ‘tion of the utilization of such method. =. : Wherefore, Mover Prays: Poe es os ae 5 = ss : ty 1. That. this motion. to quash be Sustained and that ' the ordinance and affidavit upon which this. prosecution is based be declared illegal, null and void and contrary to the provisions of!the Constitution of the State of — - Louisiana, and the Constitution of the United States. 2. For such additional relief as law, equity, or the nature of the. case may permit: ef, hs ~ By his attorneys: T. C. MeLure, Jr., J. Harry Wae- : | ner,, 2238 Fidelity-Philadelphia Trust Bidg., Pie F oe a . ry ; . ° oe : - . ; ers saa pass M ; 3 at } said w PETES te . ss ; ey * aetphia 9, aE Rul Shoal, imo n9 Pua , 4 & _ Building; ‘Philadelphia’ 2, Pennsylvania aan {to 6] _Detvimern ew: Cc. MolareJr 3 Jurat omitted a me ate , ” F, i dllleeieeeeneneiememenent ‘ , by o ee oh rclgs i ie Ve " [ite omitted) . a y "Bill of Roeptions—Filed Api 1, 1950. Ser! Be it Remembered, that before the trial of this’ cause e the : Be ‘defendant filed a motion to quash the affidavit and charge, ___ Which motion is hereto attached and made a part hereof bat ae _ incorporated herein, and said motion was overruled by _ the court, to which ruling of the court counsel for the defend- ant then and therp excepted and reserved a Bill of. Excep- tions which, after fiaving been submitted to the City Attor- . : a eda he tenders to't fhe. e Court fc for signature, a a tot 7 1 Cer Cour o or P Auaxaxons Wax, Raioes = Pax . a. pass We ner, 2238 Fidelity- Philade'phia Prost P Bldg., adelphia, Pennsylvania; E. Russell - : Sheeley, 1719 Packard Building, Philadelphia, — Pennsylvania; T. C. ‘MeLure, Jr.,- 606 Murray { Street, Ales ndria, Louisiana, siplde he vid J ack | | - ¢ PEt, Be ft Breard, by aT, Cc. MeLure, Jr. ee Signed and adiowd within the time allowed by. the Court. / oy es Se sae taka, this m ast wee of April, 1950. we (eee) ae Voltz, Ju | ee reas Lah acre fee: Tin nn \- 3S y Pek: ea y “ : ed i x atl ‘ xe \ ] i a $ oe : Tfol.10] {File endorsement omitted] _ _. Crry Counr Avexanpata Wann, Parise of Raproes, State oF i ea Pt en ee eo ‘(Title omitted}: 0 4 eT ES Bey Rxpe =. pate $ -. Sripunation or Facts—Filed: April 1, 1950. . . And now, to wit, this Ist day of April, 1950, the parties to - _ the above entitled cause, acting by and throngh their re- spective attorneys, hereby stipulate and agree as follows: : 1. (a) The City of Alexandria isa municipal corporation . _ organized, created and functioning under the laws of the — State of Louisiana and is located in Rapides Parish in that _ State. There is in effect in the City of Alexandria Penal. ~ Ordinance No. 500, which was adopted ‘in its present. form October 6, 1947. The ordinance prohibits, inter alia, the - . * practice of going in and upon private residences | 1 the City by solicitors without the prior consent of the owndrs or occu- _ pants ef such residencea for the purpose of soliciting orders _ for the sale of goods, wares and merchandise, Such solici- _ tation without prior consent is declared to_be a nuisaneé _and is made punishable as a misdemeanor. A copy of such. - ordinance in its present form marked ‘‘Exhibit A’’ is at- ' tached.to and hereby made a part of this Stipulation. == _ (b) Said penal ordinance, or one of similar import, has - _been on the statute books-of the City of Alexandria, Louisi- — ana, for many years. Such ordinance was enacted by the _ . City Council, among other reasons, because some.difitechold-. _ ers complained to those in authority that in some instances, _- , for-one reason or another, solicitors were undesirable or dis-- courteous, and some householders complained that, whether — a solicitor was courteous or ‘not, they did not desire any — (fol. 11] uninvited intrusion into the privacy of their home... ' ee , i" * al S et eae ve > Country. Gentleman, Holiday, Newsweek, gkanopolitan, Esquire, Pic, Patents, To- é day's Cs Foitian: aE 7) : | are published for profit 4nd are printed and published in “various States, (other than Louisiana), particularly in the ~ ities of Philadelphia, Chicago and New York. Keystone .. gines and. periodicals, . = ss useh A thineegt tec: 4, Each issue of the nationally known | periodicals ‘and. * ~ magazines referred to in the preceding paragraph contains _* 0n political, social arid economic questions and material de- voted to. literature, history, current events, indwstry, the sciences and arts and, as such, enjoy second class mail priv® - — leges under the postal laws of the United States). 5, Keystone in the furtherance of its business has divided — \ ‘the United States into nine regional areas, each of which is — -. in charge of a franchised regional representative, who. in- _ turn atilizes crews of solicitors to go from house to-house in | - the various cites nd towns in his regional area and: solicit. ‘periodicals, During the year 1948, the: total subscription vain of subsgriptions obtained -by Keystone Solicitors — — . throughout the country amounted t $5,319,423.40, . _ § All soliéitors of Keystone are carefully selected. ac- _ized by Keystone to solicit subscriptions, he is carefully - _ investigated as to his moral character, honesty. and in- ~--tegrity, personal.appearance, educutional quatifications ahd — _ standing in his home community. . If the investigation is — 2° RES oe 8, The Saturday Evening Post, Ladie: 3 Z s @ True. ‘Such periodicals and magazines 3 ‘operates under contracts’ with the publishers of such maga- . information of a public character, fiction, advertising, views. : [fol 12] subserivtions for the aforesaid magazines antl cording to a well defined plan. Before any person is author- — | Ae Sets oRb: ities akc person is selected as a ‘selidion; and is fur- — -f’. oe. nished with a Keystone credential card identifying| him as i We aes being authorized by. Keystone to act as a solicitor ant recit- aS * ‘ing the limits of his authority. ae Tee age 7, Upon being selected, each solicitor is given: a course in. .. salesmanship and is particularly trained and directed (a). _. “to display tis credentials to a prospective subscriber and te. us observe a courteous ‘and conslenmnke raanner in ‘soliciting, zs : -*. (b) to retire immediately after makiiig’ thy purpose of his Z eee known if the prospect does not wish to to‘subscribe to the . «js magazines and periodicals and. (ce) to ‘refrain from going . ° .,. upon any premises where there is displayed a card or sign - }. _, * indicating that solicitors are. not welcome or wanted. AL erew manager is in charge of each crew of solicitors. It is the duty of every crew manager to see to it that his crew of _ solicitors operates in accordance with their training and © . "| instructions. Any infractions of the above training and in- - ‘\. structions result in the suspension or withdrawal of author- 7 sity of a solicitor ‘depending upon the Lauder’ circum- : | - -gtanees.. - Fae Ses 8. Keystone sends a card from: its heine office to new aor | “ -:_'geribers ackiowledging receipt | of the subscription to which — - _ “is attached a business reply verification card which; among _, other things, requests information as to the subscriber's _ -impression of the solicitor responsible for the subscription. _ - A copy of such, eards marked ‘Exhibit B’’ is attached: to _. and hereby made a part of this,stipulation. —_ z -.* [fol. 43] . 9, The National Association of Magasine. Pub- : "Fishers, Ine., ( formerly known as The National Publishers . seas oa | Association, Tne.),—-a membership and: trade organization of the magazine publishing industry whose members publish | approximately 400 nationally known and distributed -maga-— zines with a combined circulation of 140 million copies per ee issue. The Association sponsors and maintains a Central pes, Ey _. Registry Plan, whereby subscription agencies, like Key- ' | _ stone, and publishers having. their ‘own field selling sub- | ~ seription organizations expressly agree in writing to adhere _ to prescribed standa.ds of fair practice in magazine sub-_ _ scription solicitation and to register the name, address and _ physical description of each of their authorized solicitors. .__ Every signatory to Central Registry Agreement is expressly pledged to assume full responsibility for all money collected — by its authorized solicitors and to fill or cause to be filled‘all eerie up to the amonnt paid by each ‘subseriber. ‘\ = — yere . . ; op Peer Bont ke, . \) t > 2 : Pi 4 —— ee _ The Central Registry list of. signatories is. furnished from ne i time to.time to local police authorities, Better Business _/. Bureaus and Chambers-of Commerce... Keystone is.a signa-. ~ _. “tory to the Central Registry Agreement and each authorized _ golicitor of Keystone is individually registered with the Central Registry and is pledged to abide by the prescribed standards of fair practice, 8 Lae 40. Solicitors of Keystone are not permanently assigned to any particylar city or town but move. from locality to Jocality within their regional area in catrying on their — "solicitation activities. The solicitors normally spend one or — hated as “Order to Publisher’? by, United States Mail to “the proper publisher who, upon acedgjance of the subscrip- ¢ : \ - Y 4 deticnlar periodical: or magazine throng iited ‘Stites Mail — to the subscriber. , » order form! for publications of © AN | Publishing Company, which is typical, is at- PITS ‘tach te ar “pareby ‘made cant of this stipulation as |. “ixhibit G7" Ca ae \ 13] The solicitation of subsMiptions in. the field regularly oS, - accomnts. for. rom 50% to 60% of the total annual subserip- Ja. « tonpeite out \ - sub nit verifi éd circulation reports to the Audit Burean of ae tions. (commonly known as ABC), an’ independant — - [fol 15) ‘goncerning the volume of circulation of most news- + papers ‘and magazines for the benefit of advertisers. “Dur ing ‘the period. from 1925 to date, the average ‘elroulation ‘per issve of*such magazines attributable to field subserip- * serh ations and single-copy newsstand sales, has amounted more than 30% of the total average annual circulation - ~ pér issue, as appears from ‘Exhibit D’? hereto annexed z J and made a part of this Stipulation.” - - a - 5 Vas Penal” Ordinance - ‘No. 500 is a ‘oe valled Green River _ + Ordinance as it is based upon an ordimance originally pre . x “pyakgated ‘by the town of Green River, Wyoming. Green — «| Rivér Ordinances were enacted in. over 460: cities through- ., out the nation during the period from 1935 to 1939. ‘While ons. the exact number of such ordinances enacted\ since 1939 is os not kn wn, many oo cities and toes oe enacted such or inances since 1939, particularly since World War. ~ IL Keystone’s solicitors encounter these ordinances most As sdioepcred in the Ronthern and Wi paters States. | : et solicitors: of Keystone | have a. pe price cae scription prices range generally f. om $2.00 te $6.00 per year) and the present method of operation by >. Keystone and its itinerant solicitors is consid red b , them - to be the most ; : 16. On Jung : ee pose of “house ae solicitation. Jack i. Breard, the “defendaiut, was irc arge. of this crew. Mr. ‘Breard: ni \e lation of- nationally-distributed magazines which - orga nization, which regularly verifies and issues reports tion solicitation, as. distinguished from direct-mail sub- — on ; Ka i : Ee. ae tod S : eat ; ae accceeats _.. franchised regional representative of Keystone, residing at . Dallas, Texas, whose regional franchise includes the States ~ | of Texas, Lonisiana, Missouri, Arkansis Colorado, Okla- “*homa, Nebraska and Kansas with headquarters in Dallas, = Texas. The solicitors upon identifying themselves to a Chief of Pole of the City of Alexandria were referred to _ she "Frank H. Peterman, Attorney for the City of Alexandria, — BPN tore] ffl. 16] who advised.them that under the proyisions of == .-. Penal Ordinance No, 500 the solicitors could not lawfully 9 =) - make house-to-house’ solicitations without. obtaining the . 9 - ~ prior consent of fRe occupants of such houses. Mr. Breard | advised Mr. Peterman that eounselfor Keystone had advised \ ~ that an ordinance like Penal Ordinance No. 500 was uncon- ° stitutional; therefore, he and the other solicitors proposed — ~ to engage in house-to-house solicitation without the prior -. -eonsent of the owners or occupants. of such houses. As ~ jndieated earlier in this~stipulation, the “defendant was ~ © arrested for engaging in such solicitation, = { <>. ‘Frank H. Peterman, Attorney for the City of Alex; = -. |)°. Pewat OnpinaNnce No. 500 Lee I |. “An ordinance regulating solicitors, peddlers, hawkers, © - itinerant. merchants or transient vendors of merchan- ___ ,dise in the city of Alexandria, Louisiana; declaring it to |’. be a nuisance for those engaging in such pursuits to go in or upon’ private residence without: having been re- — \ * quested or invited to do so: proline penne for the vio-- _'' lation hereof ; repealing all ordinances in conflict herewith.” » . Section 1. Be it ordained by the council of the city ‘of — Alexandria, Louisiana, in legal session convened that ithe _ prattice of going in and upon private residences in the ity of Alexandria, Wouisiana by solicitors, peddlers _ oe - hawkers, itinerant merchants or transient vendors of mer- “dandios not, i harlng’ bebe requested or + invited. 80° to ie we the owner or owners, occupant or occupants of said private ipo tsi for the purpose of. soliciting orders for the sale = |. > of goods, wares and merchandise. and/or disposing of “and/or peddling or hawking ‘the same is declared to be a ‘>. >” aulisanee and punishable.as such nuisance as a misdemeatir. - ©. Seetion, 2. Be it further ordained, ete., that any ‘person Ve violating: the provisions of this ordinance. shall: upon convie- _ *\ tien thetéof be fined not more than $100.00 or imprisoned Ft 1. ‘mot more than 30 days or. both fined and. Meperones 2 in n the ot Foes Rect discretion ot the. Court. . . ~.§eetion:3.- Be it further ordained, ate.: ‘that the provisions of this ordinanée shall not apply to the sale, or ‘soliciting ao of orders for the sale; of milk, dairy products, vegetables, ius Nace - pou try, eggs and other farm.and garden’ produce: so-far & o> \ @gethe gale ‘of the eee ok pied & herein i is AoW author- cae ey ee ized by law, © Sapte sf : sction 4.-Be it further ordained, ‘ele, that “it being Be Peet dee ned by} the Council of the City of Alexandria, Louisiana = E _, | that_an emergency exists, this ordinance. shall go inio a Le Hol. 18). effect immediately’ upon its passagé.. >. Warm ' Section’ 5. Be it further ordained, ete., that all Steunass wee ab oe - or parts: of ‘ordinances ee. conflict herewith are perety, re |i: pealed, ecg rien Fees aC “Cenrtricare. Vee wk e. : : 5 . zy heeby certify that the above i is a true “copy ‘of an-or- a a nance adopted nthe nnd aie Couneil at its: regular meeting is | eo on thas Ry 1947. ie * ater emi = Secretaty.-easnrer. i" SEMEN IS BPS ESAT TT SEES : ‘ i Megs ; ‘ 3 ye ; : “fifo ee | Exaier “Bao Snevianos : -Kavsrons. Reavers’ " Senvice Ses ae * 920 8. 16th Street, Philadelphia 2, Pa, Ais Dear S@pscarme: OE ees | "This card ‘is to ‘thank you for th subscription which. We , 6 have received in your name. = Your subscription will be entered immediately upon re- | - of your reply. ‘Thank you. | % woes es Very traly yours, Keystone ‘Readers’ Service. ee aot - First Clase Permit No 5344 (See. 510, PL & R. ) Phila- | — Pa. | ee =e es: "Business Rev. Kiet | Je EE AR ; ‘No. ponies stamp necessary if mailed in United States % “’6 postage will be paid by the Keystone, Rosters’, Rervice: mo 8. 16th Street, Philidetphia re aS ae — TM ms os toh 20) Exar “or Kee Smut. ATION by ee A a a a ce fe New iC . Renewal ( a a pce eee lm oe fate Ae : a (Please print name and address) ae ‘ The § : one Evening Post for aterm of... RECEE vg = i: = a“ Home Journal for a term ghar ee, See & es Holiday for a term of |: cee ix $. Yet ees ok ount : Gentlean or- aterm of. oy ee i a oes, 4 R. | zs ae and to a te 2500 only; exoépt renewals.’ 7 a certify hat the full sinount as ined aor was paid 5; home BE Ss | - Solicitor: i n cy BPs re wae. Dated: a ee (+) It gift subseription, check here and fill in na e and address of donor on reverse. of this order. Do hot detac this form from office recind So A Woh UTR ice Record 3 ; Thave this ve sold the pane indicated below to: Name. .... si: Sipeaee a BA whee oe waaas ; wie es rages Ea , Street’ ee ue paas eece es pe / fos ption circula , tion figures shown in + Gy MAMENDAMMMONMAMOAMBOMRG | mo " [go ° seeebeeeeceaesssgezsasts| ss “Total ad eet Ped et et ot wd Ro as) and farm publications reporting to. - u of Circulations. Circulation of technical and business publications and comics is not included. HOWOOTANOCANN DH HOOMODNS oC | | SRAARNRARKRSSSEAISSSSTSS | ES 4. No, per per Issue Beet 32 Bt 31 32 ~ B g " 34 - > 3A 34 35 38. 39 ae 38 ‘41 ., 44 45 49 52 - §4 49 5 rts of Audit Bureau of Circulations for » oN. es “| Becond Six Months of Each Year) / ° sSeuesessseccdceusasesis Pe , MHADEMAGCOMARMOrANDDMBDOMDOOS) ww a —— ot : eee nes ; ae ; . - x: “ S we AATENLONMOMCDDTHWe TOO circulation New York ¢ , \ . ‘No.-per . Iasue ee 45 48 50 49 Bt 49 / 46 ag .. $8 ana r, 51 . 4 ere § 7 56 57 56 is) 55. 66 73 78 1301.8 BR RS CR, Ns EE IRR ie RR ae ae foot otal 5 0 ¢ 5. 6 4 3 5 2 3 2 2 re ae 4 9 { 4 ‘ 3 ? 6 9 5 2 Subscription Circulation — Mail Solicitation ’ fod ae 4 ’ tea; “ seeks - ; - ee ve “6% ; , WA... + 5 4 4 ae 30. a7 Te 31 30 28. 29 2 ce 29 ' 29 ee, 28 * : Sia ok , as 3s i Bry. : tie ae ‘ . “ 8 - {fol. 29] tamount.to a prohibition. of anes commerce, in § violation of Section 8, Art. I, Clause 3 of the Consti- _ tution of the United States. nee a | (3) As applied to appellant and other solicitors sim- & _ iarly situated, it violates Art. I, Section 3 of the Con. _ stitution of the State of Louisiana and Amendment] -, and Amendment XIV, Section 1 of the Constitution of § . the United States, in that it abridges the freedom of — speech or of the préss because it: places an arbitrary, — _ unreasonable and undue burden upon a well established + method of distribution and circulation of lawful mag- - azines and periodicals, and, in effect, is tantamotnt to & a prohibition of the utilization of such method. = ss J ~ The'identical ordinance ‘vas before this Court in the case of City of Alexandria v. Jones, decided February 13, 1950 _ reported in 45 So. (2d) 79, ——La.—. There the defend- — ant was engaged in soliciting orders for photographs, while -here the defendant is engaged in soliciting orders for mag- viction in the Jones:case, and we see no reason to do other. - : wise in the preseut case, for the reasons hereinafter set SOR ee i ‘This same appellant, Breard, attacked (unsuccessfully) '. the constitutionality of a similar ordinance of the City’ of - | ' Alexandria in the case of Breard v..City of Alexandria, 9 — & F. Supp. 722 (U..8. D. C,.W.-D., La., 1947.) The earlier ordinance merely prohibited uninvited solicitation and de —B clured it to be unlawful; the present ordinance declares it to ° be a nuisance and publishable as a misdemeanor. For all _ practical purposes, however, the two ordinances. are _- A similar ordinance of the City of Shreveport was held. - . constitutional and valid Ey this Court in City af Shreve. & port v. Cunningham, 190 La. 481, 182 So. 649 (1938). . | | ~ elusion that the present suit is but another phase of the cam-_ ordinances invalidated and declared repugnant to ‘the United States Constitution. Since appellant’s field em- braces solicitation of orders for printed matters (maga-_ zines) which are actually distributed by the United. States mail, he-has raised the additional question of the freedom | of the press." But the real issue remains the same—the eee Se power of the local governing authority fo regulate the con- ~ uct of businesses of a local nature, in the intwrest of the, public good, under the general delegation of police power oS trom the State; the reasonableness of the regulation; and itis capable of impartial administration without ~~ regard to the discretion or judgment of the administering =~ _. The ordinance in question reads as follows cre An Ordinance Regulating Solicitors, ‘Peddlers, - Hawkers, Itinerant Merchants or transient Vendors of" - at _ Merchandise in the City of Alexandria, Louisigna: De- daring it to be a Nuisance for those Engaging in such _ Pursuits to go in or upon Private Residences Without ‘Having Been Requested: or invited to do so: Providing © Penalties for the. Violation’ Hereof; Repealing all ~ Section 1. Beit Ordained by the Couneil of the City ‘of Alexandria, Louisiana, in legal session convened” “that the practice of going in and upon private esi- dences in the City of Alexandria, Louisiana b gol: tors, peddlers, hawkers, ~{tinetant — matics oh une transient vendors of merchar dise not having, been re- ‘eéenpant or occupants of said private residences for — the’ purpose of soliciting o: rs for the sale of goods, wares and merchandise afd/or disposing of and/or) _ ‘peddling or hawking. the same is declared to be a nuis- “ anee and punishable as such nnisanee as a. misde-) {fol 31} “Section 2. Be it Further Ordained, al . > thet any person violating the provisions of this ordi; - nange shall upon conviction thereof be fined not more sy . than $100.00 or imprisoned ndt more than 30 days. _ | “vor both ined and imprisoned in the ‘discretion of the - oe Couric | ges OSPR SE cet Og Section 3. Be it Further Ordained, Ete., that the - provisions of this ordinance shall not apply to the sale, op soliciting of orders for the sale, of milk, dairy ; “products, vegetables, poultry, eggs and other farm and —~ ~~ garden produce so far as the sale' of the commodities. * named herein is now authorized by law. | x =g Pan) “Section 4. Be it Further Ordained, Etc., that. it i _ being deemed by the Council of the City of Alexandria, _. Louisiana, that an emergency exists, this ordinance _ shall go into effect immediately upon its passage. . “Section 5. Bé itFurther Ordained, Ete., that all ordinances or parts of ordinances in conflict herewith 4 | are hereby repealed.” POR: ‘That thé state and its subdivisions have such au ‘within certain constitutional ‘limitations is a well-settled principle of constitutional law and needs no further com: __Anent.” ‘In the exercise of its police power and in the inter- _~ estand for the protection of the public, a state may, with-_ . out denial of the equal protection of the laws, reasonably ‘regulate a business affected with a public interest, or a use- __ ful trade, oecipation, or profession which may prove injuri- _ ous to the public. * * * Furthermore, within proper limi- _ tations, the legislature may, without denial of equal pro-— _., tection of, the laws, classify businesses and occupations for + “purposes of regulation, provide different rules for differ- ent classes, limit a r¢gulation to a particuiar-kind of busi- _ [fol. 32} ness, extend to some persons privileges denied to others, or impose restrictions on some but not on others; — where the classification or discrimination ig based on real _ _ . differences in the subject matter and is reasonable, and the’ legislation affects alike all persons pursuing te same busi _ness under the same conditions, * * * . y * maté business, while denying such right to others, is uncon- _ stitutional unless it is based on some principle which may reasonably: promote the public health, safety, or welfare.’”. . Corpus Juris Secundum, verbo ‘‘Constitutional Law’’, Sec. tion 510, pp. 1012 ff. - Ordinance No. 500 of the City of Alexandria is by its _ nature a protective measure, conceived and designed to give. _ the occupants of the home (particularly the housewife her- hority 3 | LClassifica-, . tion or discrimination. must not be arbitrary or unreason- able; and: the legislation must. not be discriminatery-in-the— _. sense of applying unequally to persons pursuing or engaged. _ “in the same calling, profession, or business under the same ." or like conditions and circumstances. The objéct of legisla- | _, tion regulating a business must be the public good and not benefit to individuals or classes; and a statute allowing-one lass of persons to engage in what is presumptively a legiti- pelt) and their property additional security against the de- : predations of the lawless, who often under the guise of soliciting or peddlitig gain entrance for the purpose of (a) planning a future crime or (b) perpetrating. a crime im- mediately. We are mst willing to admit that the solicitors for Keystone Readers Service, Inc., of whom Breard is one, {3 that there are many types of solicitors who are not as care- fully selected, nor as reliable, and whose merchandise does | | not bear the same stamp of. ‘general approval as thiat fur-— [fol. 33] nished by Breard’s employer. The protecting pur- ‘pose of the ordinance is proven by the fact that itis not - - directed against all soliciting, ete., but only against solicit- —_- ing in, residences without invitation. — Solicitors, peddlers | s hawkers, itinerant merchants and transient vendors can still. ply their trade in the commercial-districts without restric- tion. ae . The ordinance provides for a blanket prohibition of : _ solicitation without invitation, save for food vendors, who “are specifically. exempt.. There is no opportunity for ‘any - public official either to grant or to arbitra ily withhold per- © ~ mission to solicit, nor any opportunity for the abuse ofad- .- ministrative diseretion. The ordinance} (a). defines. the _ offense, (b) provides for punishment therefor, (¢) exempts - - from its seope purveyors of food as a special category \t vendors, (d) provides for immediate passage, and (¢) pro impersonal in its ope tinction between resident solicitors and) non-resident 80- ration as to all alike.|. It makes no dis-” “are of the highest character. That does not alter the fact 4 4, i ret Fy v ¥. Veins Bae: . b 8 at ad :@ i, yi : ¥ 4 np ie Cis ‘ ce) ¢* Pa a Ss SP 4 s + 5 ae @ Erne. Ore ae $3 oe arg rv; ~~ vides for repeal of conflicting ordinances. Certainly it is © a ; & = a municipality performing an ordinary f ment, the protection of the home. 4) / 0 poi Proceeding from what wi consider to\be the real iss: ae of the case tothe epcetal ountentions ade’ by the defenfl- 0° : -ant—the -violation of the Due Process provisions of ‘the State and Federal constitutions, the i terference with inter- state commerce, and the denial of the freedom of the pyess, we shall limit diseussion’ to the last two only, the first being’ embraced within the conclusion reached as to the réason- ableness and impartial administration of the statute; _ {fol.34] The ordinance imposes no tax, no ‘license. It’ | 's & prohibition of an activity on Jocal territory, Mvolving « the problematical sale of a commodity originat ng in.another spe aye fines” é ‘& netion of govern? , = iy a , —_ ca ‘,* feel tite a eke wt SONS N ich; is Adin distributed we ie ‘Taitad S Dh 2s: yee rk. A . A \ sf 2 VSB ets UNS | & Fe Gee we ’ “\ et a ’ : . * oy i WH iis C Oi ead fe (2 y Pe ob : r Ne : ie % ; 1 eye foe ‘ af % F . It imposes no burden on the distribution | on the manufacture of the commodity, nor on any — f the transportation from one lace © another of Spee that commodity. 7 B Rearauis We fail to see how this cons con titutes. a denial of the freedom of the press. It imposes no previous censorship. | * on publication of these magazines for which orders are ‘2. > solicited, nor does it interfefe with their distribution, since. “the method of distributing magazines is either. direct to the | *...).”. patrons via thé mails, or through newsstands. \No one has are made the clair that Breard T\his co-solicitors a ually sell | ge ine¥y copy by copy ance cena lpi t ine deed would beja reductio Ab absutdum. _ | A salient feature’. of/ this case), \ which ¢ seems. ge escaped. pre | vipus attention, is that, transcendent over a rights wbich\ ppellgnt claims are infringed by this o e ‘nance, i is a futdamental principle of the law—a man’s home . is his castle. {No one has any ‘vested prerogative to invade — - -another’s priyacy. Each‘ec»mmunity knows its own eS - Jems best; and if local governments, being as they aré closest | to the popula will, choose to-exercise the sovereign’s right _ to protect a particular class of comparatively. defenceless. +>) @itigens—hous ewives,: ‘we will not reise boone to. destroy that | protection. | pe ~ The litigat oi. here relates to, ‘the power’ of the muni- : _.-_ . gipality to ehact the ordinance and the legality of the. ee oe Ifol. 35] enactment. The appellant has contended that the “ft /°.* “enaetment is illegal because it offends the commerce clause i _/ and the freedom of the press: On the question of construc- —t-/°. . - tionowe should likewise take into consideration other amend- _ ments of Tinta of the United States so as not to ee r 3 da a | ‘enlarge the gyant of power contended for by the opponents _ | ‘and not to dininish the right of enactment for protection — : a : as contended for by the municipality.. The Fifth Amend- -) + ment of the Constitution of the United States is to ade ie | | : | the man against. the nation; the Fourteenth Amendment. - to shield him in the’security of the home in\his person and _ | property rights against the tyranny of the state; the Tenth |, Amendment to prevent the Congress and the Executive De- partment from exercising any power not delegated bythe — Constitution, and all powers not so. specifically delegated : are to » he exercised vale the State or the wii sia Its perro al , ‘ X% y % 7 . » y y ® e ‘ ’ elected by the people.' to the sovereignty of the States, puts defer 2 man and {the security. of his person Hamil along: _ athong: other things to keep these departments within the: limits assigned to their authority.’’ These A endments, . {fol. 36] \and particularly Amendment Ten of the Constitu- ; tion of the United States, should not be ‘‘shorn of all their: _-Vitality.”* \ are a ae una Onan mate ng _- §o rapidly do the rights and powers of business grow by what it feeds on that the State is being rapidly pushed out of the Union\as a self-governing entity, and what is unbe-. ~ ~Jievable—even to those who see it—is that the ‘unbalancing of constitutional relations, this betrayal of the necessary and just sovereignty of the State, has been conceived, pro- — -moted without a clo season by members of the Corgress - to safeguard the safety of the home and to better insure a domestic tranquillity throughout the nation is a purpase set _ out in the: preamble of the Constitution of .the United — _ States. It is true that the preamble is not one of the pro- — visions of the Federal Constitution, an 64g ated tone That ~ the constitution emanated from the people he nek te _ states and’ that \it was ordained to insure a nhore. perfect . Ment. presupposes its existence in perpetuity,’ The denial of the right to/enact-the ordinance by the municipality is: - to lessen the effectiveness of the preamble of tlie constitu- tion of the United States emanating from the people, the source of all power. | at 3 sity Mihai . . The ordinance is a jnatter: of local concern and. of local © | lected by Any appearance here of criticism as _ distinguished from es rnest conviction would be an errorof the mind-and not of the heart, The right of the sovereign "importance, a matter of the ordinary functions of govern-— ager ncieneaninen acai . . Ease ae 1a egos aaa! ~ s " ve Seto A m) . Beret oy Nae as : - ; t! : ope ~ im : : ; aN Oy . 4. : antes Gee ie age ce - mS TREY < . x - z . eke eS & ? 5 y : ae ae ‘ M x ; 0 < x « = ‘Busse. Sllockley, 1719 Packard Bailding, Phila- 8 oe . noted. rene [fol. 90] ‘Surname oun OF THE Unrrep Stars, Der - Term, 1950 ae a No. 399 Open Wenn Packie J ousbrorrox—December i, : ‘The statement of jurisdiction i in this case. haying + - mitted and eonseired oy the Bors penal ora " Hndoreed on Cover: File No 54,905. ini Supre ‘Gaur Term No. 399. Jack H. Breard, Appellant. vs. C = Alexandria. | ied November 2, 1000, Reece No. 399 me 50. - eh es ,! rs Shee Raed She ye x lay cess ~~ ree ANS ae pe See eH --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0054%3A01. Public record. Not legal advice.