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City of Clifton v. Weber

Decided: June 26, 1964.

CITY OF CLIFTON, PLAINTIFF-RESPONDENT,
v.
DONALD P. WEBER, DEFENDANT-APPELLANT



Gaulkin, Lewis and Fulop. The opinion of the court was delivered by Lewis, J.A.D. Fulop, J.c.c. (temporarily assigned, dissenting).

Lewis

Defendant Weber was convicted in the Municipal Court of the City of Clifton for violation of an ordinance which required a permit for house-to-house soliciting or canvassing. The Passaic County Court affirmed the conviction following a trial de novo on the transcript. The defendant appeals.

At the hearing in the municipal court Weber entered a plea of not guilty. He admitted, through his trial counsel, that he had solicited orders for cutlery at private homes in the City of Clifton without applying for the required permit. He claimed that the local ordinance,*fn1 as applied to his activities,

was invalid because it worked an undue and discriminatory burden upon the flow of interstate commerce, in violation of Article I, section VIII, of the United States Constitution , citing among other cases State v. Mauer , 75 N.J. Super. 90 (Cty. Ct. 1962).

Two witnesses testified. Sergeant Gula of the Clifton Police Department appeared on plaintiff's behalf and described the procedure utilized in processing a request for a solicitor's permit. He explained that an applicant fills out a form at the police record bureau, submits it with a $3 fee to the office of the city clerk, and is then fingerprinted and photographed. The length of time involved in the accomplishment of those preliminary steps is, according to Gula, "anywhere from 10 to 15 minutes." The fingerprints are forwarded to the FBI in Washington, D.C., and the New Jersey State Police in Trenton to ascertain whether the applicant has ever been convicted of a crime. The officer said, "the actual investigation and the issuance of the permit takes anywhere from ten to twenty-one days. There is no set standard, it may be nine, ten, eleven, twelve, thirteen."

Harry Schultz, a division sales manager of Wear-Ever Aluminum, Inc., testified for defendant. On direct examination he was asked to approximate the number of municipalities a solicitor would have to frequent in the course of a year in order to remain in business. The reply was "Well, most of our people [defendant was one of 82 distributors under Schultz' jurisdiction] work in Bergen and Passaic County, and there are over 100 municipalities in both these counties." There is no proof that any other municipality had an ordinance similar to Clifton's, or that defendant was actually disadvantaged or delayed in any other municipality. In discussing the possible effect a delay of 10 to 21 days might have, the witness stated, "Well, we know that other companies are competing for the dollar and if they get there before we do we find it difficult to make the sale."

It is conceded on appeal that defendant was engaged in interstate commerce. The sole question before us is whether

his conviction should be overturned by virtue of the alleged unconstitutional effect of the ordinance under which prosecution obtained. Defendant does not challenge the validity of any particular term or provision of the ordinance in question. His appeal is founded upon a twofold argument: (a) "The cumulative effect of municipal registration of solicitors as required by the Clifton Licensing Ordinance is an unconstitutional burden on interstate commerce," and (b) "The waiting period for the issuance of a solicitor's license by the City of Clifton is an unconstitutional burden on interstate commerce."

It is firmly established that a municipality may, in the legitimate exercise of its police power, regulate the business of house-to-house soliciting or canvassing through the enforcement of licensing requirements. Moyant v. Paramus , 30 N.J. 528, 544 (1959). An otherwise reasonable police regulation may affect interstate commerce so long as it does not place an undue burden thereon. Nippert v. City of Richmond , 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760 (1946).

The argument advanced by Weber is that an ordinance should be held unconstitutional "if the cumulative effect of complying with similar ordinances of several municipalities within which a solicitor does business, imposes an undue burden on interstate commerce." He relies heavily upon the decision in Nippert. That case involved an ordinance of the City of Richmond, Virginia, which imposed a direct tax upon persons engaged in business as solicitors in the municipality and also upon sales arising only under contracts requiring interstate shipment of goods. The United States Supreme Court found that, unlike the New York sales tax at issue in McGoldrick v. Berwind-White Coal Min. Co. , 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565 (1940), the Richmond tax "inherently bore no relation to the volume of business done or of returns from it." (327 U.S. , at p. 427.) Moreover, although the ordinance was alleged to be neither prohibitive nor discriminatory on its face, the court held that its practical

effect was to favor the local merchant as against the out-of-state one. It was the unbalanced tax burden to which its opinion referred when it spoke of the "cumulative effect" which a series of similar ordinances would bring to bear upon the salesman whose business requires him to continually move from place to place. Parenthetically, it might be observed that the court chose not to deal with the nontax regulatory features of the ordinance. (See footnote 2, 327 U.S. , at p. 418, 66 S. Ct. 586.) However, the burdensome effect of municipal regulations upon interstate commerce, in other than tax cases, may also be unconstitutional. Real Silk Mills v. City of Portland , 268 U.S. 325, 45 S. Ct. 525, 69 L. Ed. 982 (1925). It was recognized in Breard v. Alexandria , 341 U.S. 622, 640, 71 S. Ct. 920, 931, 95 L. Ed. 1233, 1247 (1951), that different considerations apply where legislation is not an added financial burden upon sales in commerce or an exaction for the privilege of doing interstate commerce, but rather a regulation of local matters. The court said:

"When there is a reasonable basis for legislation to protect the social, as distinguished from the economic, welfare of a community, it is not for this Court because of the Commerce Clause to deny the exercise locally of the sovereign power * * *."

In Moyant v. Paramus, supra , our Supreme Court dealt with a local ordinance which made it unlawful to engage in the business of a solicitor or canvasser without first obtaining a permit or license. In order to be licensed one had to obtain a medical certificate, post a $1,000 bond and pay a fee of $25. The police chief was empowered to conduct an investigation and determine whether or not the license should issue. The court determined that the fee, the bond and the medical certificate requirements constituted unreasonable burdens on interstate commerce, and the ordinance provisions as to those mandates were invalidated. It was stated:

"Just complying with ordinance provisions as comprehensive and detailed as those of Paramus in every town will quickly consume a great amount of time and money, with correspondingly less time to do business and ...


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