Graves v. City of Gainesville , 78 Ga. App. 186 ( 1948 )

Where a photographer, who resides in another State and has his photographic studio and principal place of business in such other State with no fixed place of business in this State, sends an agent into a municipality of this State to solicit orders for photographs and sends a cameraman into the same municipality to take exposures of sittings and poses of customers solicited by the other agent, each of whom receives the sum of 50 cents from each of such customers for said services, which entitles each of said customers to one picture, the scheme or plan of the transaction being to send the negatives of several sittings and poses to the photographer in the foreign State, from which proofs are developed and returned to the municipality of this State by another agent of the photographer, such customers then being afforded the opportunity of ordering any number of pictures from such proofs besides the one for which such customers have paid the sum of $1, and such proofs are again sent to the studio of the photographer where the pictures are completed according to order and mailed C. O. D. to the customers, such transaction is interstate commerce.

An ordinance of a municipality of this State fixing an occupational tax of $15 per year on a resident photographer and $10 per day upon an itinerant photographer is so discriminatory as to place an undue burden upon the interstate commerce referred to herein and is in violation of art. I, sec. 8, par. 3, of the Constitution of the United States. The fact that the ordinance further provides that such itinerant photographer, before canvassing for customers in the municipality, shall register himself with the police department, giving his name, permanent address, the name and permanent address of the company he represents, and shall allow himself to be fingerprinted for identification purposes, is not such reasonable police regulation and exercise of police power of the municipality as to harmonize the ordinance as applied to the occupations and business transactions herein outlined with this constitutional provision.

DECIDED DECEMBER 3, 1948. The plaintiffs in error, L. D. Graves and C. B. Smith Jr., hereinafter referred to as the defendants, were served with copies of charges on March 6, 1948, accusing each of them with the offense of engaging in the business of itinerant photographers without having procured a license therefor as required by section 5, item 141 B, of an ordinance of the defendant in error, the City of Gainesville, hereinafter referred to as the plaintiff.

Section 5 of the ordinance in question is as follows: "The business, profession, trades or callings upon which a license tax is hereby imposed and the amounts hereby imposed are as follows:

Business, Profession, Trade or Calling            Col. 1    Col. 2
141 Photographer, with privilege of selling          1/10 of    $15.
picture frames.                                    1%
(a) Photographers, canvassers, for itinerant                    $50.
photographers or artists each Co.
(b) Photographers, itinerant, per day.                          $10.
Each canvasser or agent soliciting funds
for out of town organizations or taking
orders for periodicals, books, pictures,
maps, or picture frames or any other
article, shall before starting to work
register himself with the Police Department
giving his name, permanent
address, the name and permanent address
of the company he represents,
and he shall allow himself to be fingerprinted
for identification purposes. The
Police Department will issue to each
person complying an identification card
to be displayed upon demand of any
Police Officer or citizen."

The item constituting 1/10 of 1 percent or $15 is the fixed license tax for one year as is the item of $50 under (a). However the item following (b) of $10, sought to be applied to the defendants herein is the fixed license tax per day on itinerant photographers.

The defendants filed a plea in abatement assigning numbers of grounds for the alleged invalidity of that portion of the city ordinance sought to be applied to them. Among these grounds is one wherein the defendants contend that the part of the ordinance sought to be enforced against them is void and violative of the interstate-commerce clause of the Constitution of the United States as contained in art. 1, sec. 8, par. 3, as follows: "The Congress shall have power to regulate commerce with foreign nations and among the several States and with the Indian tribes."

The defendants further contend in their said pleas in abatement that the tax of $10 per day, sought to be imposed upon them as itinerant photographers, is void as being an arbitrary discrimination between an itinerant photographer engaged in interstate commerce and a local resident photographer, and by its terms seeks to prevent such business in interstate commerce from competing with such business of the resident photographer.

These pleas in abatement were submitted to the trial court on an agreed statement of facts substantially as follows: that at the time the copies of charges were served upon the defendants, they were engaged in the City of Gainesville as agents of Olan Mills Inc.; that each of the defendants is a resident and citizen of the State of Alabama; that Olan Mills Inc. is a corporation of the State of Tennessee with its office and principal place of business, including its photographic studios in Tuscaloosa, Alabama; that the defendant L. D. Graves, as agent of said corporation solicited and sold an order of one 8" x 10" finished unmounted photograph to Mr. and Mrs. Arnold Bennett, for which the said L. D. Graves collected the sum of 50 cents which he retained as his commission for obtaining said order; that the defendant C. B. Smith, as agent of said corporation and while located in a room at the Princeton Hotel in said city, as camera operator took some exposures of some sittings and poses of the said Mr. and Mrs. Bennett, they having been sent to the defendant Smith by the defendant Graves; that at this time the defendant Smith collected the sum of 50 cents from Mr. and Mrs. Bennett as his compensation for the transaction; that in the regular manner of transacting the business of Olan Mills Inc. the exposed negatives of the sittings and poses of Mr. and Mrs. Bennett would then be mailed to the studios of the corporation at Tuscaloosa, Alabama and proofs thereof manufactured; that thereupon these proofs would be brought to Gainesville by another agent of the corporation and exhibited to customers; that one picture of the customer's choice would then be finished and delivered to the customer by mail for the $1 paid previously to the corporation's agents, the defendants Graves and Smith; that at the time the customer was exercising the choice of sittings and poses from the proofs exhibited by the third agent of the corporation, the customer would have the opportunity to order any number of photographs in which case the order would be sent to the corporation and photographs processed and finished and then mailed to the customer C. O. D. for any balance due; that the corporation reserved the right to accept or reject any order sold by its agent, and the customer had the right to refuse to purchase or order any further finished photographs; that the Bennett transaction went according to this plan as far as it got; that the plan herein outlined applied to any and all customers of the corporation in Gainesville; that the part played by the defendants herein the Bennett transaction is the extent of their duties and services to the corporation in their transaction of the usual business of the corporation; that neither of the defendants had obtained any license from the plaintiff and neither had paid the license tax prescribed by sec. 5, item 141; that each of them declined to obtain a license or pay the license tax; that the corporation had not obtained any license or paid the $50 tax provided for in sec. 5, item 141 (a); that seven persons are permanently engaged in the photography business in the City of Gainesville, of which only one employs a canvasser; and that the remaining six operate from a fixed place of business.

It was further agreed that the mayor and police officers of the City of Gainesville would testify substantially as follows: that in recent years transient photographers have imposed upon the police authorities there additional burdens by fraudulently obtaining money from the local citizens in payment of photographs and not delivering the same; that the ordinance complained of was enacted by the proper authorities of the plaintiff as a police regulation for the protection of the citizens of said city; that non-resident photographers doing business in said city, including the defendants, were equipped with portable paraphernalia which could be packed and moved in five minutes; and that upon some occasions non-resident photographers are represented in said city by a photographer and a canvasser or canvassers, or either, without any equipment and with no fixed place of business.

Upon this agreed statement of facts the trial court denied the prayers of the plea in abatement, and by agreement the defendants were tried before the court on the same statement of facts. Counsel for the defendants moved that the court find the defendants not guilty based on the agreed statement of facts, upon a number of grounds including one that a conviction would be an unconstitutional enforcement of said ordinance against the defendants in violation of the interstate-commerce clause of the Constitution of the United States and contained in art. I, sec 8, par. 3, hereinbefore quoted. The trial court overruled the motion and convicted each of the defendants, fixing their punishment at the maximum penalty provided for by the ordinance.

The defendants appealed the cases by certiorari, based on their contentions as herein outlined and as having been insisted upon in the recorder's court.

On the hearing the judge of the superior court overruled the certiorari, and this judgment is assigned as error. Although counsel for the plaintiff stated by brief and orally that, in the case of Graves v. City of Gainesville (No. 32128), the defendant in error declines to litigate further and agrees to the entry of the order directing that this case be dismissed, yet since this position is taken by the defendant in error, the case must be reversed by this court in order for such direction to be given, and since a decision of the case on its merits has this effect, it is being considered and decided along with the case ofSmith v. City of Gainesville (No. 32129), a decision of one of said cases being controlling as to the other.

Counsel for both sides have demonstrated outstanding legal knowledge and ability in the preparation of very exhaustive and instructive briefs. Counsel for the plaintiff contend that the ordinance is valid on a number of grounds and for a number of reasons, including the grounds that it provided reasonable classification for the business of photography, that it was enacted as a police regulation for the protection of the citizens of Gainesville against probable fraudulent conduct of itinerant tradesmen, and that, as such, the ordinance is a proper and valid use of the police power of the city.

Counsel for the defendants contend that classification is not a proper issue; that the ordinance is invalid because photography is not a matter about which a city can legislate as an exercise of its police power; that the ordinance is in contravention of the traveling-salesman statute of this State (Code, § 92-4105); and that the ordinance is invalid as being in violation of the commerce clause of the Constitution of the United States, it being insisted that it discriminates against and imposes an undue burden on such commerce.

If the latter is true, if the ordinance is in violation of the commerce clause of the Constitution of the United States as contained in art. I, sec. 8, par. 3, hereinbefore quoted, then a determination of the numerous other questions of law raised by the briefs of counsel for both sides is unnecessary, as for instance, if the ordinance is in violation of the commerce clause of the Constitution, it cannot relieve itself of this stigma even if it does constitute a reasonable classification for the business of photography; also, if it is offensive to the commerce clause of the Constitution of the United States because it imposes an undue burden on interstate commerce, it cannot overcome this fatal defect because it also relates to a subject-matter over which the city is empowered to exercise its police power. Of course, if the ordinance can and does classify the occupations to which it relates and then provides for the exercise of the police power of the city over the same in such way as not to contravene any provision of the Constitution of the United States or of this State, or any superior statutory law, then and in that event the ordinance is valid. If, on the other hand, the ordinance clearly stands in violation of such provisions of law, constitutional or statutory, then it must yield.

The terms of a statute or ordinance will sometimes themselves disclose whether it is enacted as a police measure or a revenue measure. The provision of the ordinance in the instant case, requiring each canvasser or agent taking orders for pictures, before starting to work, to register with the police department, etc., is urged by the plaintiff as conclusive evidence that the same is a police measure. However, the tax imposed by the ordinance on a resident photographer of Gainesville is $15 per year, whereas that imposed on itinerant photographers is $10 per day. In Lochner v. New York, 198 U.S. 45 (25 Sup. Ct. 539,49 L. ed. 937), it is held as follows: "It is impossible for us to shut our eyes to the fact that many laws of this character while passed under what is claimed to be the police power, for the purpose of protecting the public health or welfare, are, in reality, passed for other motives." While not all burdens upon commerce, but only undue discriminatory ones, are forbidden, yet the difference in taxes of $15 per year and approximately $3000 per year on the same occupation is of such magnitude that it could hardly be classed other than as discriminatory. In Nippertv. Richmond, 327 U.S. 416, 425 (66 Sup. Ct. 586,90 L. ed. 760), it is said: "As has been so often stated, but nevertheless seems to require constant repetition, not all burdens upon commerce, but only undue or discriminatory ones, are forbidden. For, though interstate commerce must pay its way, a State consistently with the commerce clause cannot put a barrier around its borders to bar out trade from other States and thus bring to naught the great constitutional purpose of the fathers in giving to Congress the power . . to regulate commerce with foreign nations, and among the several States." Therefore it necessarily follows that this ordinance is discriminatory and in effect builds a barrier around the borders of the City of Gainesville so as to bar other photographers than those who reside therein; and since the business activity here under consideration amounts to interstate commerce, the ordinance in question puts an undue burden on it and consequently becomes offensive to art. I, sec. 8, par. 3, of the Constitution of the United States.

Nippert v. City of Richmond, supra, involved a municipal ordinance imposing upon persons engaged in business as solicitors an annual license tax of $50 and 1/2 of 1% of the gross earnings for the preceding license year in excess of $1000. A permit from the director of public safety was a prerequisite to the issuance of the license, and violators were subject to criminal penalties. The court held in that case that this ordinance violated the commerce clause of the Federal Constitution.

In the instant case, the defendants received their compensation by the advance payment of the customers of the corporation in Gainesville, the same being 50 cents to the defendant Graves for soliciting the order and 50 cents to the defendant Smith for his services as cameraman. It was held in Real Silk Hosiery Mills v. Portland, 268 U.S. 325 (1) (45 Sup. Ct. 525, 69 L. ed. 982), as follows: "``The negotiation of sales of goods which are in another State, for the purpose of introducing them into the State in which the negotiation is made, is interstate commerce.' Manifestly, no license fee could have been required of appellant's solicitors if they had traveled at its expense and received their compensation by direct remittances from it. And we are unable to see that the burden on interstate commerce is different or less because they are paid through retention of advanced partial payments made under definite contracts negotiated by them. Nor can we accept the theory that an expressed purpose to prevent possible frauds is enough to justify legislation which really interferes with the free flow of legitimate interstate commerce."

In Crenshaw v. Arkansas, 227 U.S. 389 (33 Sup. Ct. 294,57 L. ed. 565), it is held that the negotiation of the sale of goods which are in a State other than the State in which the negotiation is made, is interstate commerce.

Brennan v. Titusville, 153 U.S. 289 (14 Sup. Ct. 829,38 L.ed. 719), holds as follows: "An ordinance requiring agents soliciting orders on behalf of manufacturers of goods to take out a license and pay a tax therefor, made by a municipal corporation under authority conferred by a statute of the State, granting to such corporations power to levy and collect license taxes on hawkers, peddlers and merchants of all kinds, is an exercise, not of the police power, but of the taxing power; and when it is enforced against an agent, sent by a manufacturer of goods in another State to solicit orders for the products of his manufactory, it imposes a tax upon interstate commerce, in violation of the provisions of the Constitution of the United States." See Loh v. Macon, 8 Ga. App. 744(1) (70 S.E. 149); City of Atlanta v. York Mfg. Co., 155 Ga. 33(1) (116 S.E. 195); DennisonMfg. Co. v. Wright, 156 Ga. 789 (120 S.E. 120).

Counsel for the plaintiff contends that the acts of the defendant Smith constitute a separate and distinct incident from the interstate commerce of the corporation, and being local in their nature were therefore subject to vocational classification and tax.

In Nippert v. City of Richmond (page 423), the following is held: "All interstate commerce takes place within the confines of the States and necessarily involves ``incidents' occurring within each State through which it passes or with which it is connected in fact. And there is no known limit to the human mind's capacity to carve out from what is an entire or integral economic process particular phases or incidents, label them as ``separate and distinct' or ``local,' and thus achieve its desired result."

The defendants, as agents of Olan Mills Inc. of Alabama, were engaged solely in interstate commerce in the City of Gainesville. The ordinance, for the violation of which they were convicted, placed an undue burden on such commerce, and is therefore in violation of art. I, sec. 8, par. 3, of the Constitution of the United States.

The trial court erred in overruling the writs of certiorari in the within cases.

Judgment reversed in each case. MacIntyre, P. J., andGardner, J., concur.