Summary
In Studio v. Portsmouth, supra (95 N.H. 171, 59 A.2d 475, decided 1 June, 1948), solicitors were canvassing high school graduating classes in the State of New Hampshire for a Massachusetts studio.
Summary of this case from State v. MobleyOpinion
No. 3736.
Decided June 1, 1948.
The ordinance of the city of Portsmouth requiring non-resident photographers to pay license fees while local photographers are not so required constitutes a barrier to interstate commerce and is therefore invalid.
PETITION, for a declaratory judgment (R. L., c. 370, s. 20) to determine the validity and applicability to the plaintiffs of a 1941 ordinance of the city of Portsmouth for the "licensing and regulation of transient or itinerant photographers." The ordinance is as follows:
"Section 1. DEFINITION: The words `Itinerant Photographers' as used in this ordinance shall be construed to mean all persons, whether as principals or agents, who engage in a temporary or transient business in this City, whether such persons conduct their said business by traveling from house to house taking pictures in house or operate from a hotel room, store or other place of business, or otherwise and who perform any of the following acts of the photography business: solicit orders, take pictures, assist in taking pictures, show proofs, deliver pictures, make collections for pictures sold.
"Section 2. APPLICATION: Each applicant for an itinerant photographer's license shall apply in writing to the City Council, said license to be issued by the City Clerk after having received the proper fee as hereinafter provided.
"Section 3. FEES: The itinerant photographer's license fee shall be $5.00 for each day less than one week, $25.00 for one week and $100.00 for one month. If the licensee wishes to continue business in the City of Portsmouth after having been licensed for three months, he may continue at no charge for a license so to do."
The named plaintiff is a Massachusetts corporation which conducts a photographic business from its principal place of business in Boston in that Commonwealth. It employs photographers and salesmen, two of whom are Massachusetts residents and plaintiffs in this proceeding, to solicit and take graduation photographs of high school and college students in New England. The solicitation and photographs in this case were done in Portsmouth. The negatives, proofs and finished pictures were processed and manufactured in Boston and mailed to the students who paid the balance of the purchase price to the postman upon delivery.
The named defendant is a municipal corporation and the other defendants are its mayor, city clerk and chief of police. No injunctive relief was granted since the plaintiffs deposited funds in escrow to secure payment of license fees in the event the ordinance was valid and the defendant agreed not to enforce the ordinance during the pendency of this proceeding. The petition alleges and it does not appear to be disputed that "no license is required of and no license fees are imposed upon Portsmouth photographers and that no substantially equivalent charge is paid by Portsmouth photographers."
Reserved and transferred without ruling by Wescott, J.
Mintz, Levin Cohn of Massachusetts, A. Morris Kobrick and William M. Glovsky also of Massachusetts on the brief and Cooper, Hall Grimes (Mr. Kobrick orally), for the plaintiffs.
Samuel Levy for the defendants, filed no brief.
The right to enact reasonable statutes and ordinances for the regulation and licensing of hawkers and peddlers, itinerant vendors and solicitors has been recognized and enforced in this jurisdiction for a long period of time. R. L., c. 188; R. L., c. 66 s. 13 (XV); R. L., c. 189; Wright, Hawkers and Walkers in Early America (1927) 91. "Itinerants present some menace to the public if unrestrained . . . and sales in itinerancy may be regulated because of the elements of travel and wandering." Woolf v. Fuller 87 N.H. 64, 70, 72. However, the regulation and licensing must not unduly or unfairly discriminate against non-residents. Such discrimination was formerly considered to be in conflict with the privileges and immunities clause (Art. 4, Pt. I, s. 2) of the Federal constitution (State v. Lancaster 63 N.H. 267) but today the emphasis is placed on its violation of the commerce clause. Nippert v. Richmond, 327 U.S. 416.
The challenged ordinance if not designed for the purpose of discriminating against the non-resident photographer clearly has that necessary effect. Portsmouth photographers pay no license fees under this ordinance nor are they subject to any substantially equivalent charges. The cumulative burden of such an ordinance in various municipalities throughout the state as applied to the plaintiffs, who photograph succeeding high school graduating classes year after year, constitutes a barrier to interstate commerce which is not permitted. Nippert v. Richmond, supra, 429, 430. While interstate commerce may be required to pay its way, it must be placed on a plane of equality with local trade and commerce. If ordinances may accomplish that object, the present one does not. Compare the comprehensive report by Rhyne a. Municipal Regulation of Peddlers, Solicitors Itinerant Merchants (1947, Nat'l Institute of Municipal Law Officers) 5 — 165.
This case does not present the question of the right of the state to regulate the practice of photography since there is no statute on the point and no opinion is expressed thereon. See Annotations, 116 A.L.R. 1366; 134 A.L.R. 1374. The ordinance of the city of Portsmouth being invalid for the reason indicated, the order is
Judgment for plaintiff.
All concurred.