City of Kosciusko v. No Equal Textile Co.

E'ithbidge, J., delivered the opinion of the court. The city of Kosciusko, a municipal corporation operating under the Code chapter on Municipalities, on the 16th day of December, 1924, adopted the following ordinance: “Section 1. That a solicitor within the meaning and application of this ordinance is any person who goes from house to house, or from place to place, in the city of Kosciusko, Miss., selling or taking orders for, or offering to sell, or take orders for goods, wares, or merchandise, or any article for future delivery for services to be performed in future, or for the making, manufacturing, or repairing of any articles, or thing whatsoever for future delivery, provided, however, that this ordinance shall apply only to solicitors who demand, accept, or receive payment, or deposit of money in advance of final delivery. “Sec.- 2. That it shall be unlawful for any person tó act as a solicitor within the meaning and application of this ordinance without first procuring a license from the proper city officer, or officers as herein provided. “Sec. 3. That any person desiring or intending to engage as a solicitor in the city of Kosciusko, Miss., shall malee application therefor to the mayor of the city on forms to be provided, stating therein the name and address of the applicant, the name and address of the person, firm or corporation which he represents, and the kind or description of the goods offered for sale, or the kind of service to be performed. ‘‘ Such application shall be accompanied by a bond in the penal sum of two hundred dollars, executed by a surety company or two responsible persons, residents of the state of Mississippi (in lieu therefor a cash bond of equal amount), conditioned upon the making of final de *229 livery of the goods ordered, or for the services to he performed in accordance with the terms of such order, or failing therein that the advance payment on such order he refunded. The said application together with such bonds or other indemnity shall he inquired into by the mayor, who if he finds said bond to he sufficient, shall order the issuance of the privilege license to said applicant upon the payment of privilege tax imposed by this ordinance. £ £ Sec. 4. That privilege tax or license ho, and the same is hereby levied and imposed upon any solicitor within the meaning of this ordinance, doing or attempting to do such business in the city of Kosciusko, Miss., in the following sums to he paid by or on behalf of such solicitor to the city tax collector before the issuance of such license, to-wit: Solicitors on foot, seven dollars and fifty cents; solicitors with pack animals, twenty dollars; solicitors with vehicle and animal thirty dollars; solicitors with vehicle and two animals, fifty dollars; solicitors with motor vehicle, fifty dollars — such license to he valid for one year from date of issuance. ‘£ Sec. 5. If any person shall act as solicitor within the meaning and application of this ordinance in said city without complying with the requirements hereof, such person shall on conviction he subject to a fine of not exceeding fifty dollars, or imprisonment not exceeding ten days, or both in discretion of the court besides the cost of the prosecution. ££Sec, 6. If any clause, section, or provision of this ordinance is declared invalid for any reason the remainder hereof shall remain in full force and effect; and that fact shall not affect or.destroy any other section, clause or provision not in itself invalid.” The appellee, a nonresident corporation, incorporated under the laws of the state of Pennsylvania, filed its hill in the chancery court of Attala county, Miss., to enjoin the enforcement of the above ordinance against its solicitors operating in the city of Kosciusko, and soliciting orders for the complainant, and alleged that its solicitors secured a deposit from the purchaser on securing the or *230 der and that said order is transmitted to the complainant at its place of business in the city of Reading, Pa., or to some other office outside of the said state in which the order is taken, and that upon receipt of such order the complainant packs and ships to the person so ordering' said goods by parcel post throughout the United States. Said goods are shipped, C. 0. .!>., from out of the state of the residence of the purchaser and into the state of the buyer. That complainant has no place of business in the state of Mississippi, and does not own a warehouse or storehouse in the said city of Kosciusko, and does not complete any sale in the state of Mississippi, but ships all of said orders delivered in Mississippi from outside of the said state, and that complainant is engaged solely in interstate commerce. That complainant has numbers of agents in Mississippi taking orders as above stated. That two of such agents are in the city of Kosciusko, Miss., engaged in receiving and soliciting orders from individuals for goods, and who received therefor the initial payment for said goods, and who send said orders to the home office located outside of the state of Mississippi, and that said goods are shipped by parcel post, C. O. D., to the purchaser. That neither of the said solicitors delivers to the person ordering the goods any part of the same, but that the entire amount of goods so ordered are sent in separate parcels to the purchaser from points outside of the state and are delivered in the original package.' Complainant further states that neither of its said agents and solicitors in the city of Kosciusko are resident citizens of the state of Mississippi, but reside in other states of the Union; that one of its agents was arrested and placed in jail in the city of Kosciusko on December 17, 1924, by the marshal of Kosciusko, and on the 18th day of December, 1924, he was tried before the city court of said city on the charge of soliciting orders without first obtaining a license therefor and was convicted on said charge and fined fifteen dollars; that another of said agents was arrested on the 15th day of December, 1924, *231 and was caused to pay a fine, or purchase a license for the privilege of securing orders from various persons as above set out; that said agents either had to pay said fine or license or else be confined in the city jail. It is further alleged that the officers of said city have threatened to arrest the agents or solicitors of complainant if they continue to take orders as above stated, and that complainant is unable to do business in the city of Kosciusko, Miss., through its agents because of the fact that said officers will arrest the agents of the complainant, and prevent them from taking such orders, and that said officers are interfering with the complainant’s business and interfering with interstate commerce, and that said ■ officers are attempting to enforce said ordinance above set out in violation of the Federal Constitution. It is also alleged that said ordinance is void and unconstitutional because the city of Kosciusko has no authority under the laws of the state of Mississippi to regulate interstate commerce, and that it is violative of the laws of the state of Mississippi for the reason that cities of this state are only authorized to impose a tax of fifty per cent, of the amount of the state tax, as provided by section 3909, Code of 1906, Hemingway’s Code, section 6639; that there being no state tax on such solicitors, there can be no city tax for the privilege of securing orders for goods as above set out under the state laws ;, and that complainant is without adequate remedy at law. The city demurred to the bill on the following grounds: (1) That thq original bill is without equity. (2) That the original bill of complaint does not state any cause of action against the defendants, or either of them,. (3) That complainant has an adequate remedy at law. (4) That an injunction will not lie to prevent criminal prosecution. (5) That the original bill of complaint does not allege compliance on the part of the complainant with any of the provisions of the municipal ordinance of the city of Kosciusko exhibited with the original bill of complaint. Upon the other hand, complainant concedes that it has ignored and violated the same, etc. *232 This demurrer was overruled and appeal granted to settle the principles of the case. The city of Kosciusko, appellant here, relies upon section 3329, Code of 1906, Hemingway’s Code, section 5826, which reads as follows: “To make all needful police regulations necessary for the preservation of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property; and to adopt ordinances prohibiting within the corporate limits the commission of any act which amounts to a misdemeanor under the laws of the state. ’ ’ Section 3367, Code of 1906, Hemingway’s Code, section 5864, reads as follows: “To levy and collect all license-tax upon and regulate all callings, trades, professions, and occupations conducted, pursued, carried on, or operated within the limits of the city or town, the same not to exceed fifty per centum of the state license tax levied upon the same callings, trades, and professions.” It is not contended that the state has levied any privilege tax upon the business herein sought to be taxed by the city in the above ordinance, and it is not sought to reverse the court below on any idea that the ordinance can be upheld under the taxing power of the municipality, because the municipality can only tax such trades, occupations, and callings as the state has taxed; but the ordinance is sought to be upheld under the police power of the city. The cause was elaborately argued and briefed on the question of the power of the state to impose a tax or a regulation upon the business under the facts set forth in the bill under the interstate commerce provision of the federal Constitution, but in our view it is unnecessary to now decide what the state might do under its police power in reference to the facts contained in the record here, because under our view section 3329, Code of 1906, Hemingway’s Code, section 5826, does not authorize a city to enact an ordinance like the one here involved. The language of the section, “to make all needful police regulations necessary for the preservation of good order *233 and the peace of the municipality,” has reference to the power of the municipality to secure the peace and tranquillity of the municipality. The language here is not as broad as the language frequently used in conferring upon municipalities the power to provide for the general welfare of its inhabitants. The authority to preserve the peace and order of the municipality, to prevent the exercise of unlawful violence, and to compel citizens and sojourners to abstain from riot, rout, and unlawful assembly, has never been seriously questioned. It is a power essential to the enjoyment of peace and quiet and personal safety, but it does not extend to the power of prohibiting the solicitation of business or collecting* part of the money therefor, or to the regulation of a lawful business conducted in a beneficial and orderly manner. The Code chapter confers many powers upon municipalities regulating* certain kinds of businesses and occupations under other powers specifically named, but none of the sections conferring such power authorized the ordinance here involved. It is well settled in our state that municipalities have no powers except such as are delegated to them by the state, either express or by necessary implication, and that such powers delegated by the legislature are intended to be exercised in conformity to, and consistent with, the general laws of the state, and whenever a city seeks to exercise power it must find that power in its charter, or it must be onej of necessary implication from other powers granted to make effective the powers which the legislature has conferred in express terms. Crittenden v. Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Hazlehurst v. Mayes, 96 Miss. 656, 51 So. 890; Steitenroth v. Jackson, 99 Miss. 354, 54 So. 955; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453, 26 L. R. A. (N. S.) 1130, Ann. Cas. 1912B, 377; Clinton, Town of, v. Turner, 95 Miss. 594, 52 So. 261 (1910). It will be seen from an examination of the ordinance above set out that the ordinance applies to any person who goes from house to house, or place to place, in the *234 city selling, or taking orders for, or offering to sell, goods, wares, and merchandise, or any article for future delivery, for services to be performed in the future, or for making, repairing, or manufacturing any articles or thing for future delivery, who demand, accept, or receive payment, or deposit of money in advance of final delivery and that before such a person can engage in such business in the said city he must file application giving the name and address of the firm or corporation he represents, and the kind and description of the goods offered for sale, or the services to he performed, and must give bond in the sum of two hundred dollars, or deposit that amount in cash, conditioned upon making a final delivery of the goods ordered or for the services performed in accordance with the terms of such order, or, failing therein, to refund the money received. This ordinance is far more comprehensive in its scope and effect than is authorized by the section relied upon and has no. reasonable relation to the object intended to be secured by section 3329, Code of 1906, Hemingway’s Code, section 5826. We are therefore of the opinion that the order of the chancellor overruling the demurrer was proper, and the judgment will be affirmed and remanded. Affirmed and remanded.