text:
    LONGO, Plaintiff-Appelllant, v. TABASSO et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22125.
    Decided April 30, 1951.
    Morris Morgenstern, Bernard B. Direnfeld, Cleveland, for plaintiff-appellant.
    Harry P. Glick, Cleveland, for defendant-appellees.
    (DOYLE, J, of the 9th District, sitting by designation.)
   OPINION

By SKEEL, PJ.

The plaintiff, with a friend, went into defendants’ cafe for a drink. They had just seated themselves at the bar when his friend, Vitous, was assaulted by Anthony Tabasso, who it was claimed,' acted as a bouncer in the cafe. The plaintiff tried to separate the two men when Tabasso stabbed him with a knife.

Plaintiff’s action is set forth in two causes of action.

1. That Tabasso while acting as an employee of the defendant and in the course of his employment, assaulted plaintiff with a knife causing serious physical injury.

The evidence on this cause of action is that Tabasso had on many occasions served drinks, made change, kept order and by his dress (shirt sleeves and bedroom slippers) seemed to be and acted as one engaged in carrying on the business with the knowledge and consent of the defendant.

At the time in question, the plaintiff and his friend, Vitous, came into the saloon, went to the bar and had been there but a very short time when Tabasso came out of the rear room and at once assaulted Vitous. Defendant was not there, but his wife and daughter came out from behind the. bar and implored Tabasso to stop, that plaintiff stepped in- as the “peacemaker” whereupon Tabasso pulled out a pocket knife and stabbed him.

There is no evidence that at the time of the affray Tabasso was doing anything in furtherance of the defendant’s business. His acts, so far as the evidence shows, were his own and wholly disassociated from his work.

The first cause of action was therefore properly dismissed at the end of plaintiff’s case.

The second cause of action is founded upon the claim that the defendant was negligent in harboring a man of dangerous propensities in his cafe and that such negligence, together with the failure in the exercise of ordinary care to protect plaintiff from the unlawful conduct of such dangerous person, was the proximate' cause of plaintiff’s injuries.

The evidence fails to establish that Tabasso was a man of violent ph5?sically agressive or disorderly propensities, to the knowledge of defendant. The plaintiff tried to introduce Tabasso’s police court record. Such record would not be admissible because it related to specific instances of misconduct and did not go to his general reputation for violent and'disorderly conduct.

The second cause of action was therefore not sustained by plaintiff’s evidence, when considered in its most favorable light, in favor of the plaintiff.

Likewise, there is no evidence in the record that the relationship between plaintiff and Vitous was such as to give plaintiff the legal right to interfere. He voluntarily put himself in a place of danger and must therefore be considered to have assumed the risk.

For the reasons stated the judgment of the trial court must therefore be affirmed. Exc.- Order see journal.

HURD, J, DOYLE, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    NEWMAN, Plaintiff-Appellee, v. METCALF, Exr., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4346.
    Decided December 15, 1949.
    Draper, Lombardo & Morgan, Columbus, for plaintiff-appellee.
    Henry A. Reinhard, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

Four errors are assigned to the money judgment on behalf of the plaintiff.

1 and 2 are that'the judgment is contrary to the manifest weight of the evidence and to the law.

The 3rd, in admission of testimony on behalf of the plaintiff.

The 4th, in refusing to admit certain competent and material evidence offered by the defendant.

.We find no argument' whatever in the brief to support the 4th error assigned.

Upon the 3rd, it is objected that Dr. McShane, the attending physician of the defendant’s decedent, was permitted, to testify to a privileged communication between him and his patient. The trial judge permitted no testimony which could even remotely be considered a privileged communication and ruled out other evidence upon that ground which, in probability, was competent. Second class of cases cited in Carson v. Bentley, 54 Abs 402.

The 1st and 2nd assignments have no merit whatever except as they may relate to the effectiveness of the proof that defendant’s decedent had’ promised the plaintiff to pay her $7.00 per day for the services to be performed under the contract pleaded. As a predicate for this contention counsel for defendant concedes that the action was on an express contract one of the terms of which fixed the rate of pay.

Upon examination of the petition there is some doubt if the action is riot in quantum meruit. Be that as it may. the one witness who testified on the subject of an express contract as to the amount to be paid, at three places in the record states that he heard Anna Carroll, defendant’s decedent, promise to pay plaintiff $7.00 per day for the services to be rendered by her for decedent. It is true that this testimony is somewhat weakened by cross-examination, and by former statements made by the witness, but on the whole, the trier of the fact had the right to resolve it in favor of the claim of the plaintiff.

If .the action is on quantum meruit the evidence is convincing that $7.00 per day was most reasonable.

The cause was tried to a judge without the intervention of a jury and the finding and judgment are well supported by the evidence.

Judgment affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By DOYLE, J:

text:
    AETNA CASUALTY & SURETY CO., Plaintiff-Appellant, v. BUCKEYE UNION CASUALTY CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22075.
    Decided April 16, 1951.

      McKeehan, Merrick, Arter & Stewart, Cleveland, for plaintiff-appellant.
    W. M. Byrnes, Cleveland, for defendant-appellee.
    (DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

The facts in this litigation were in part stipulated in the, Court of Common Pleas of Cuyahoga County, and pertinent parts will appear in the following paragraphs.

An automobile owned by Edward G. Butler was damaged by fire. He took it to The Weaver Motor Company for repair. During the process of the work, the motor company, upon the request of Butler, loaned him one of their cars for his personal use. Butler, while operating the borrowed car, collided with a tractor-trailer outfit owned by an Ohio partnership, under circumstances which made it probable that he was liable to the partnership for the damage to their equipment, resulting from the collision.

The action in the common pleas court was commenced by The Aetna Casualty & Surety Company and directed against The Buckeye Union Casualty Company in which a money judgment was sought by the plaintiff against the defendant, on the claim that it (Aetna) had paid for the damage caused by Butler under its policy of insurance when it was only secondarily liable; that the primary liability rested on the Buckeye Union Casualty Company which company had refused to recognize any liability or pay the claim, although demand and notice had been duly made and given.

At the time of the accident, Butler carried liability insurance with the Aetna Casualty & Surety Company which insured him not only when he was operating his own car but also while using other cars. Applicable provisions of this policy are in the following terms:

“VI. Temporary Use oí Substitute Automobile. While an automobile owned in full or in part by the named insured is withdrawn from normal use because of its breakdown, repair, servicing loss or destruction, such insurance as is afforded by this policy for * * * property damage liability with respect to such automobile applies with respect to another automobile not so owned while temporarily used as the substitute for such automobile.”

“Conditions. * * * 15. If the insured has other insurance against a loss covered by this policy the Company shall not be liable * “■ * for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance raider Insuring Agreements V and VI, shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to the automobile, or otherwise, against a loss covered under either or both of said insuring agreements.” (Emphasis ours.)

It also appears that The Buckeye Union Casualty Company had in force, at the time of this collision, a policy of liability insurance issued to the Weaver Motor Co. It is the claim of Aetna that this policy covered Butler with respect' to the damages ensuing from his accident. Buckeye vigorously denies its liability for Butler’s delict.

Important passages from the Buckeye Union Casualty Company’s insuring contract follow:

“Endorsement: It is agreed that such insurance as is afforded by the policy 9 9 9 for property damage liability applies also to any customer of the named insured, as insured, subject to the following provisions:'

“1. The insurance applies only if the named insured’s operations are classified as ‘automobile dealer or repair shop’ and only while any such customer is using, for purposes of demonstration or otherwise in direct connection with such business operations, any automobile covered under such classification.”

“Division l. Definition of Operations. Automobile Dealer or Automobile Repair Shop. The ownership, maintenance, occupation or use of the premises herein designated, including the public ways immediately adjoining for the purpose of an automobile dealer or repair shop, and all operations either on the premises or elsewhere which are necessary and incidental thereto, including repairs of automobiles or their parts and ordinary repairs of buildings on the premises and the mechanical equipment thereof; and the ownership, maintenance or use of any automobile for any purpose in connection with the above defined operations and also for pleasure use.”

“Conditions. * * * 9. Other Insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”

The case was tried to a 'judge, a jury having been waived. At the request of Aetna, and in compliance with §11421-2 GC, the court made and entered its conclusions of fact and conclusions of law. They appear as follows:

“Conclusions of Fact.

“2. The court finds from the evidence that at the time of the collision between the Chevrolet sedan owned by the Weaver Motor Co., and operated by Edward G. Butler, and the truck owned by Dan Gibbs and Son, Butler was using said automobile of the Weaver Motor Co., with its permission and as one of its customers and that such use by him was in direct connection with the business operations of the Weaver Motor Co., being in furtherance of the building up of its business through .good will and the maintenance of satisfactory relationships with its customers.”

“Conclusions of Law.

“1. At the time of the collision above referred to, the insurance afforded by the policy issued by The Buckeye Union Casualty Company to the Weaver Motor Co., applied to its customer Edward G. Butler, and extended 'coverage to him for the liability created by said collision.

“2. Said insurance coverage afforded by the policy of the Buckeye Union Casualty Company to Edward G. Butler, was primary and that afforded to Edward G. Butler by the policy of Aetna Insurance Company constituted excess or secondary coverage only.

“3. Nevertheless, even though The Buckeye Union Casualty Company, insurance coverage was primary and that of Aetna Casualty & Surety Co. secondary, yet by reason of the ‘other insurance’ provisions of the respective policies and the decision of the Supreme Court in Farm Bureau Mutual Automobile Insurance Co. v. The Buckeye Union Casualty Company, 147 Oh St 79, the payment and satisfaction by plaintiff of the claim * * * .was made by plaintiff as a volunteer and without right of recovery of any part thereof from The Buckeye Union Casualty Co.

“4. Said payment did not have the effect of assigning or subrogating plaintiff to any rights which it did not otherwise have or possess.

“5. Defendant is entitled to judgment, and plaintiff’s petition should be dismissed at its costs.”

Judgment was thereupon entered for the defendant, as above indicated. From this judgment, appeal was perfected to this court on questions of law.

Upon examination of the evidence (agreed stipulation of facts, exhibits, copies' of policies, depositions) we conclude that the “conclusions of fact” reached by the trial court are within the bounds of the proof; and that the “conclusions of law” under (1) and (2), as set forth above, are sustained by the contracts of insurance, in the light of the evidence. The difficulty arises from this point on, and to that we now direct our attention.

It will be again noted that the Aetna policy contracted to pay only the excess “over any other valid and collectible insurance available to the insured” while the Buckeye policy agreed to pay the proportion of the loss which the “applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss.”

It thus appears that we have two separate insurance companies bound to the same principal by separate instruments with each limiting its pecuniary liability.

Under the Buckeye policy, the “other insurance” therein mentioned does not apply to the Aetna policy, because of the provision in the Aetna contract insuring only the “excess * * * over any other valid and collectible insurance available to the insured.” And from the fact that the amount of the damage settlement (stipulated to have been “fair and just”) made by Aetna, came within the limits of the Buckeye policy, it follows that there was at no time a legal liability upon Aetna to pay anything. See: Zurich General Accident & Liability Insurance Co. v. Clamor et al, 124 Fed. (2d) 717.

On the subject of contribution, the courts of this state quote with approval the following principle set out in 29 Amer. Juris. Insurance. Sec. 1333:

“If several insurers bind themselves to pay the entire loss in case of the destruction of the subject of the insurance, and one insurer pays the whole loss, the one so paying has a right of action against his co-insurers for a ratable proportion of the amount paid by him because he has paid a-debt which is equally and concurrently due by the other insurers.”

However, “one who, with knowledge of the facts and without legal liability makes a payment of money, thereby becomes a volunteer; and * * * equity' will not aid a volunteer.”

Farm Bureau M. Auto. Ins. Co. v. Buckeye Union Casualty Co., 147 Oh St 79 at pp. 87 and 88.

“To entitle one to contribution, the payment must be compulsory in the sense that the party paying was under legal obligation to pay.” 18 C. J. S. Constribution, Sec. 4, and cases cited under note 48 on page 8.

It is the conclusion of the members of this court that The Aetna Casualty & Surety Company was not under a legal obligation to pay, because of the “conditions” in its policy heretofore set forth; that Butler was insured under the Buckeye Union Casualty Company’s policy and the obligation rested upon it to pay the damage; that when Aetna paid the loss, 'it became a volunteer; and that, under the rules extant in this state, Aetna’s action must fail.

Under this view of the case the judgment must be and is affirmed. Exc. Order see journal.

SKEEL, PJ,' HURD, J, concur.


text:
    VECCHIARELLI, Plaintiff-Appellant, v. BUCHSIEB, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4415.
    Decided September 21, 1950.

      R. W. Kilbourne, Columbus, for plaintiff-appellant.
    Joseph & McClelland, Robert L. Ratchford, Jay C. Flowers, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

The first question presented by this appeal is whether an agreement by a landlord to make repairs on premises he has leased to a tenant is a retention of such control of the property as to make him liable in damages for a personal injury sustained by reason of a defect in the building. This question was only recently passed upon in the case of Cooper v. Roose, 151 Oh St 317. In the second syllabus it is said:

“The facts, that the lessor agrees to make repairs and does make repairs, do not alone justify a finding that he retained occupation or control of the premises.” Citing, Berkowitz v. Winston, 128 Oh St 611; and Ripple v. Mahoning National Bank, 143 Oh St 614.

The appellant urges, however, that an obligation to make repairs is some evidence of retention of control by the landlord and the court erred in instructing the verdict for the defendant at the close of the plaintiff’s case. Conceding for the sake of argument that he is correct in his premise it is not sufficient to warrant a finding that control of the premises has been retained by the landlord under the above cited cases. Therefore a prima facie case was not made since there was no other evidence offered on the sub jet of control. The instruction of the court was proper.

The next question is whether the court erred in sustaining objection to the following question:

“Q. And you assumed the control and the actual repairing as to outside repairs, is that correct?”

We find no error in the court’s ruling, for the following reasons: (1) It -is a double-barreled question asking if the defendant assumed control of the premises and also asking if he assumed the obligation of making the outside repairs; (2) the question calls for a legal conclusion.

We find no error in the record and the judgment is affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


text:
    SCHUTT, Plaintiff-Appellee, v. BLANKENSHIP et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4548.
    Decided January 8, 1951.
    E. S. Morton, Columbus, for plaintiff-appellee.
    Arthur L. Spielmann, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a motion submitted by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the notice of appeal was not filed within the time required by §12223-7 GC.

The record discloses that the motion for new trial was overruled on November 9, 1950, and that the notice of appeal was filed on November 30, 1950. ’ It will be noted that this is more than twenty days after the overruling of the motion for a new trial. The appellants have submitted an affidavit in which it is stated that on November 29, 1950, at 5:00 P. M. two letters' were mailed, one to the Municipal Court and one to the Court of Appeals, containing the appeal notice. ' It will be noted that these letters were mailed on the 20th day. The question presented is whether or not this meets the statutory requirement. Sec. 11297-1 GC provides for the service of writs and processes by mai[, but this section the statutory requirement. Sec. 11297-1 GC provides for the service of writs and processes by mai[, but this section has no application to notices of appeal. Statutes providing for service of process have been held not to apply to service of notice. Wood v. Kane, 129 S. E. 327, 143 Va. 281. In the. absence of a statute providing otherwise notice is not given until it is received by the one to be notified. Regan v. Atlantic Refining Co., 23 N. E. (2d) 869, 304 Mass. 353; 66 C. J. S. 659, Par. 18c.

In 39 Amer. Jur. 250, Sec. 28, it is said:

“Where a contract requires notice, but does not specify the manner in which the notice is to be given, mere mailing of the notice is not sufficient unless it is received, in the absence of express provisions in the contract to the contrary, and if the notice is mailed in proper time, but is,.not received until after the time fixed for giving notice, it is ineffective.”

■ We therefore hold that the statutory notice was not filed within the required time and the motion will be sustained.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur..


author: MR. JUSTICE REED

text:
    BREARD v. CITY OF ALEXANDRIA, LA.
    Supreme Court of United States.
    No. 399.
    Decided June 4, 1951.

      E. Russell’ Shockley, Philadelphia, Pa., for appellant.
    Frank H. Peterman, Alexandria, La., for appellee.
   MR. JUSTICE REED

delivered the opinion of the Court.

OPINION

The appellant here, Jack H. Breard, a regional representative of Keystone Readers Service, Inc., a Pennsylvania corporation, was arrested while going from door to door in the City of Alexandria, Louisiana, soliciting subscriptions for nationally known magazines. The arrest was solely on the ground that he had violated an ordinance because he had not obtained the prior consent of the owners of the residences solicited. Breard, a resident of Texas, was in charge of a crew of solicitors who go from house to house in the various cities and towns in the area under Breard’s management and solicit subscriptions for nationally known magazines and periodicals including among others the Saturday Evening Post, Ladies Home Journal, Country Gentleman, Holiday, Newsweek, American Home, Cosmopolitan, Esquire, Pic, Parents, Today’s Woman and True. These solicitors spend only a few days in each city depending upon its size. Keystone sends a card from its home office to the new subscribers acknowledging receipt of the subscription and thereafter the periodical is forwarded to the subscriber by the publisher in interstate commerce through the mails.

The ■ ordinance under which the arrest was made, so far as is here pertinent, reads as follows:

“Section 1. Be it ordained by the council of the city of Alexandria, Louisiana, in legal session convened that the practice of going in and upon private residences in the City of Alexandria, Louisiana,- by. solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences 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 nuisance and punishable as such nuisance as a misdemeanor.”

It, or one of similar import, has been on'the statute books of Alexandria for many years. It is stipulated that:

“Such ordinance was enacted by the City Council, among other - reasons, because some householders complained to those in authority that in some instances, for one reason or another, solicitors were undesirable or discourteous, and some householders complained that, whether a solicitor was courteous or not, they did not desire any uninvited intrusion into the privacy of their home.”

The protective purposes of the ordinance were underscored by the Supreme Court of Louisiana in its opinion. 217 La. 820, 47 So. 2d 553, at page 555.

At appellant’s trial for violation of the ordinance there was a motion to quash on the ground that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution; that it violates the Federal Commerce Clause, article 1, section 8, clause 3; and that it violates the guarantees of the First Amendment‘of freedom of speech and of the press, made applicable to the states by the Fourteenth Amendment to the Constitution of the United States. Appellant’s motion to quash was overruled by the trial court and he was found guilty and sentenced to pay a $25 fine or serve 30 days in jail. The Supreme Court of Louisiana affirmed appellant’s conviction and expressly rejected the federal constitutional objections. 217 La. 820, 47 So. 2d 553. The case is here on appeal, 28 U. S. C. Section 1257, Jamison v. Texas, 318 U. S. 413, 63 S. Ct. 669, 87 L. Ed. 869:

All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable. principle, such as that of a right to work, a privilege to engage in interstate commerce, or á free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.

It is true that the knocker on the front door is treated as an invitation or license to attempt an entry justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles. When such visitors are barred from premises by notice or order, however, subsequent trespasses have been punished. Door-to-door canvassing has flourished increasingly in recent years with the ready market furnished by the rapid concentration of housing. The infrequent and still welcome solicitor to the rural home became to some a recurring nuisance in towns when the visits were multiplied. Unwanted knocks on the door by day or night are a nuisance or worse to peace and quiet. The local retail merchant, too, has not been unmindful of the effective competition furnished by house-to-house selling in many lines. As a matter of business fairness, it may be thought not really sporting to corner the quarry in his home and through his open door put pressure on the prospect to purchase. As the exigencies of trade are not ordinarily expected to have a higher rating constitutionaily than the tranquillity of the fireside, responsible municipal officers have sought a way to curb the annoyances while preserving complete freedom for desirable visitors to the homes. The idea of barring classified salesmen from homes by means of notices posted by individual householders was rejected early as less practical than an ordinance regulating solicitors.

The Town of Green River, Wyoming, undertook in 1931 to remedy by ordinance the irritating incidents of house-to-house canvassing for sales. The substance of that ordinance, so far as here material is the same as that of Alexandria, Louisiana. The • Green River ordinance was sustained by the Circuit Court of Appeals of the Tenth Circuit in 1933 against an attack by a nonresident corporation, a solicitor of orders, through a bill for an injunction to prohibit its enforcement, on the federal constitutional grounds of interference with interstate commerce, deprivation of property without due process of law, and denial of the equal protection of the laws. Town of Green River v. Fuller Brush Co., 10 Cir., 65 F. 2d 112. No review of that decision was sought. An employee of the Brush Company challenged the same ordinance again in the courts of Wyoming in 1936 on a prosecution by the town for the misdemeanor of violating its terms. On this attack certain purely state grounds were relied upon, which we need not notice, and the charges of violation of the Federal Constitution were repeated. The ordinance was held valid by the Supreme Court of Wyoming. Town of Green River v. Bunger, 50 Wyo. 52, 58 P. 2d 456.

Due Process. — On appeal to this Court, appellant urged particularly the unconstitutionality under the Fourteenth Amendment Due Process Clause of such unreasonable restraints as the Green River ordinance placed on “the right to engage in one of the common occupations of life,” citing inter alia, New State Ice Co. v. Liebmann, 285 U. S. 262, 278, 52 S. Ct., 371, 374, 76 L. Ed. 747, and Adams v. Tanner, 244 U. S. 590, 37 S. Ct., 662, 61 L. Ed. 1336. He also relied upon the alleged prohibition of interstate commerce under the guise of a police regulation.

Here this Court dismissed for want of a substantial federal question. Bunger v. Green River, 300 U. S. 638, 57 S. Ct., 510, 81 L. Ed. 854. For an answer to the argument that the ordinance denied due process because of its unreasonable restraint on the right to engage in a legitimate occupation, this Court cited three cases: Gundling v. Chicago, 177 U. S. 183, 20 S. Ct., 633, 44 L. Ed. 725; Western Turf Association v. Greenberg, 204 U. S. 359, 27 S. Ct., 384, 51 L. Ed. 520; and Williams v. Arkansas, 217 U. S. 79. 30 S. Ct., 493, 54 L. Ed. 673.

The opinions of this Court since this Green River case have not given any ground to argue that the police power of a state over soliciting has constitutional infirmities under the due process principle embodied in the concept of freedom to carry on an inoffensive trade or business. Decisions such as Liebmann and Tanner, supra, invalidating legislative action, are hardly in point here. The former required a certificate of convenience and necessity to manufacture ice, and the latter prohibited employment agencies from receiving re-' muneration for their services. The Green River ordinance can .be characterized as prohibitory of appellant’s legitimate business of obtaining subscriptions to periodicals only in the limited sense of forbidding solicitation of subscriptions by house-to-house canvass without invitation. All regulatory legislation is prohibitory in that sense. The usual methods of solicitation — radio, periodicals, mail, local agencies are open. Furthermore, neither case is in as strong- a position today as it was when B.unger appealed. See Olsen v. Nebraska, 313 U. S. 236, 243, et seq., 61 S. Ct. 862, 863, 85 L. Ed. 1305, and Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 535, 69 S. Ct. 251, 256, 93 L. Ed. 212.

The Constitution’s protection of property rights does not make a state or a city impotent to guard its citizens against the annoyances of life because the regulation may restrict the manner of doing a legitimate business. The question of a man’s right to carry on with propriety a standard method of selling is presented here in its most appealing form — an assertion by. a door-to-door solicitor that the Due Process Clause' of the Fourteenth Amendment does not permit a state or its subdivisions to deprive a specialist in door-.to-door selling of his means of livelihood. But putting aside the argument that after all it is the commerce, i. e., sales of periodicals, and not the methods, that is petitioner’s business, we think that even a legitimate occupation may be restricted or prohibited in the public interest. See the dissent in New State Ice Co. v. Liebmann, 285 U. S. 262, 280, 303, 52 S. Ct 371, 375, 383, 76 L. Ed. 747. The problem is legislative where there are reasonable bases for legislative action. We hold that this ordinance is not invalid under the Due Process Clause of the Fourteenth Amendment.

Commerce Clause. — Nor did this Court in Bunger consider the Green River ordinance invalid under the Commerce Clause as an unreasonable burden upon or an interference with interstate commerce. As against the cases cited in Bunger’s behalf, this Court relied upon Asbell v. Kansas, 209 U. S. 251, 254, 255, 28 S. Ct. 485, 486, 52 L. Ed. 778 (allowing Kansas to have its own inspection for cattle imported into the state, except for immediate slaughter); Savage v. Jones, 225 U. S. 501, 525, 32 S. Ct. 715, 722, 56 L. Ed. 1182 (allowing a state to regulate the sale and require a formula for stock feeds); Hartford Accident & Indemnity Co. v. People of State of Illinois, 298 U. S. 155, 158, 56 S. Ct. 685, 686, 80 L. Ed. 1099 (upholding an Illinois statute requiring commission merchants to keep record of out-of-state consignments and obtain a license and give a bond).

Appellant does not, of course, argue that the Commerce Clause .forbids all local regulation of solicitation for interstate business.

“Under our constitutional system, there necessarily remains to the states, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. * * * States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power.”

Such state power has long been recognized. Appellant argues that the ordinance violates the Commerce Clause “because the practical operation of the ordinance, as applied to appellant and others similarly situated, imposes an undue and discriminatory burden upon interstate commerce and in effect is tantamount to a .prohibition of such commerce.” The attempt to secure the householder’s consent is said to be too costly and the results negligible. The extent of this interstate business, as stipulated, is large. Appellant asserts that Green River v. Bunger, supra, is inapplicable to the commerce issue, although the point was made and met, because the effect of the ordinance at that date, 1936, upon commerce was “incidental” and because it was decided “before the widespread enactment of Green River Ordinances and before their actual and cumulative effect upon interstate commerce could possibly be forecast.” It is urged that our recent cases of Hood & Sons v. DuMond, 336 U. S. 525, 69 S. Ct. 657, 93 L. Ed. 865, and Dean Milk Co. v. City of Madison, 340 U. S. 349, 71 S. Ct. 295, demonstrate that this Court will not permit local interests to protect themselves against out-of-state competition by curtailing interstate business.

It was partly because the regulation in Dean Milk Co. discriminated against. interstate commerce that it was struck down.

“In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do, even in the exercise of its unquestioned power to protect the health and safety of its people, if reasonable nondiscriminatory alternatives, adequate to cohserve legitimate local interests are available.” 340 U. S. at page 354, 71 S. Ct. at page 298.

Nor does the clause as to alternatives apply to the Alexandria ordinance. Interstate commerce itself knocks on the local door. It is only by regulating that knock that the interests of the home may be protected by public as distinct from private action. Likewise in Hood & Sons v. DuMond it was the discrimination against out-of-state dealers that invalidated the order refusing a license to buy milk to an out-of-state distributor. Where no discrimination .existed, in a somewhat similar situation, we upheld the state regulation as a permissible burden on commerce. See in accord, Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm., supra, 71 S. Ct. 781.

We recognize the importance to publishers of our many periodicals of the house-to-house method of selling by solicitation. As a matter of constitutional law., however, they in their business operations are in no different position so far as the Commerce Clause is concerned than the sellers of other wares. Appellant, as their representative or in his own right as a door-to-door canvasser, is no more free to .violate local regulations to protect privacy than are other solicitors. As we said above, the usual methods of seeking business are left open by the ordinance. That such methods do not produce as much business as house-to-house canvassing is, constitutionally, immaterial and a matter for adjustment at the local level in the absence of federal legislation. Cf. Prudential Ins. Co. v. Benjamin, 328 U. S. 408, 66 S. Ct. 1142, 90 L. Ed. 1342. Taxation that threatens interstate commerce with prohibition or discrimination is bad. Nippert v. Richmond, 327 U. S. 416, 434, 66 S. Ct. 586, 594, 90 L. Ed. 760, but regulation that leaves out-of-state sellers on the same basis as local sellers cannot be invalid for that reason.

While taxation and licensing of hawking or peddling, defined as selling and delivering in the state, has long been thought to show no violation of the Commerce Clause, solicitation of orders with subsequent interstate shipment has been immune from such an exaction. These decision have been explained by this Court as embodying a protection of commerce against discrimination made most apparent by fixed-sum licenses regardless of sales. ’Where the legislation is not an added financial burden upon sales in commerce or an exaction for the privilege of doing interstate commerce but a regulation of local matters, different considerations apply.

We think Alexandria’s ordinance falls in the classification of regulation. The economic effects on interstate commerce in door-to-door soliciting cannot be gainsaid. To solicitors so engaged, ordinances such as this compel the development of a new technique of approach to prospects. Their local retail competitors gain advantages from the location of their stores and investments in their stock but the solicitor retains his flexibility of movement and freedom from heavy investment.

The general use of the Green River type ordinance shows its adaptation to the needs of the many communities that have enacted it. We are not willing even to appraise the suggestion, unsupported in the record, that such wide use springs predominantly from the selfish influence of local merchants.

Even before this Court’s decision in Martin v. City of Struthers, 319 U. S. 141, 63 S. Ct. 862, 87 L. Ed. 1313, holding invalid, when applied to a person distributing leaflets advertising a religious meeting, an ordinance of the City of Struthers, Ohio, forbidding the summoning of the occupants of a residence to the door, our less extreme cases had created comment. See Professor Zechariah Chafee, Free Speech in the United States (1942) 406.

To the city council falls the duty of protecting its citizens against the practices deemed subversive of privacy and of quiet. A householder depends for protection on his city board rather than churlishly guarding his entrances with orders forbidding the entrance of solicitors. A sign would have to be a small billboard to make the differentiations between the welcome and unwelcome that can be written in an ordinance once cheaply for all homes.

“The police power of a state extends beyond health, morals and safety, and comprehends the duty, within constitutional limitations, to protect the well-being and tranquility of a community.”

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 of Louisiana. Changing living conditions or variations in the experiences or habits of different communities may well call, for different legislative regulations as to methods and manners of doing business. Powers of municipalities are subject to control by the states. Their judgment of local needs is made from a more intimate knowledge of local conditions than that of any other legislative body. We cannot say that this ordinance of Alexandria so burdens or impedes, interstate commerce as to exceed the regulatory powers of that city.

First Amendment. — Finally we come to a point not heretofore urged in this Court as a ground for the invalidation of a Green River ordinance. This is that such an ordinance is an abridgment of freedom of speech and the press. Only the press or oral advocates of ideas could urge this point. It was not open to the solicitors for gadgets or brushes. The point is not that the press is free of the ordinary restraints and regulations of the modern state, such as taxation or labor regulation, referred to above at note 24, but, as stated in appellant’s brief, “because the ordinance places an arbitrary, unreasonable and undue burden upon a well established and essential method of distribution and circulation of lawful magazines and periodicals and, in effect, is tantamount to a prohibition of the utilization of such method.” Regulations necessarily have elements of prohibition. Thus the argument is not that the money-making activities of the solicitor entitle him to go “in or upon private residences” at will, but that the distribution of periodicals through door-to-door canvassing is entitled to First Amendment protection. This kind of distribution is said to be protected because the mere fact that money is made out of the distribution does not bar the publications from First Amendment protection. We agree that the fact that periodicals are sold does not put them beyond the protection of the First Amendment. The selling, however, brings into the transaction a commercial feature.

The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses. Rights other than those of the advocates are involved. By adjustment of rights, we can have full liberty of expression and an orderly life.

The case that comes nearest to supporting appellant’s contention is Martin v. Struthers, 319 U. S. 141, 63 S, Ct., 862, 863. There a municipal ordinance forbidding anyone summoning the occupants of a residence to the door to receive advertisements was held invalid as applied to the free distribution of dodgers “advertising a religious meeting.” Attention was directed in note 1 of that case to the fact that the ordinance was not aimed “solely at commercial advertising.” It was said:

“The ordinance does not control anything but the distribution of literature, and in that respect it substitutes the judgment of the community for the judgment of the individual householder.” 319 U. S. at pages 143-144, 63 S. Ct. at page 863.

The decision to release the distributor was because:

“Freedom to distribute information to every citizen where-ever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved.” 319 U. S. at pages 146-147, 63 S. Ct. at page 865. There was dissent even to this carefully phrased application of the principles of the First Amendment. As no element of the commercial entered into this free solicitation and the opinion was narrowly limited to the precise fact of the free distribution of an invitation to religious services, we feel that it is not necessarily inconsistent with the conclusion reached in this case.

In Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 90 L. Ed. 265, and Tucker v. Texas, 326 U. S. 517, 66 S. Ct., 274, 90 L. Ed. 274, a state was held by this Court unable to punish for trespass after notice under a state criminal statute certain distributors of printed matter, more religious than commercial. The statute was held invalid under the principles of the First Amendment. In the Marsh case it was a private corporation, in the Tucker case the United States, that owned the property used as permissive passways in company and government-owned towns. In neither case was there dedication to public , use but it seems fair to say that the permissive use of the ways was considered equal to such dedication. Such protection was not extended to colporteurs offending similar state trespass laws by distributing, after notice to desist, like publications to the tenants in a private apartment house. Hall v. Virginia, 188 Va. 72, 49 S. E. 2d 369. Appeal, after conviction, on the ground of denial of First Amendment rights, dismissed on motion of appellee to dismiss because of lack of substance in the question. 335 U. S. 875, 912, 69 S. Ct., 240, 480, 93 L. Ed. 418; see note 2, supra.

Since it is not private individuals but the local and federal governments that are prohibited by the First and Fourteenth Amendments from abridging free speech or press, Hall v. Virginia does not rule a conviction for trespass after notice by ordinance. However, if as we have shown above, 71 S. Ct., 931, a city council may speak for the citizens on matters subject to the police power, we would have in the present prosecution the time-honored offense of trespass on private grounds after notice. Thus the Marsh and Tucker cases are not applicable here.

This makes-the constitutionality of Alexandria’s ordinance turn upon a balancing of the ’ conveniences between some householders’ desire for privacy and the publisher’s right to distribute publications in the precise way that those soliciting for him think brings the best results. The issue brings into collision the rights of the hospitable housewife, peering on Monday morning around her chained door with those of Mr. Breard’s courteous, well-trained but possibly persistent solicitor, offering a bargain on culture and information through a joint subscription to Satevepost, Pic and Today’s Woman. Behind tlie housewife are many housewives and homeowners in the towns where Green River ordinances offer their aid. Behind Mr. Breard are “Keystone” with an annual business of $5,000,000 in subscriptions and the periodicals with their use of house-to-house canvassing to secure subscribers for their valuable publications, together with other housewives who desire solicitors to offer them the opportunity and remind and help' them, at their doors, to subscribe for publications.

Subscriptions may be made by anyone interested in receiving the magazines without the annoyances of house-to-house canvassing. We think those communities that have found these methods of sale obnoxious may control them by ordinance. It would be, it seems to us, a misuse of the great guarantees of free speech and free press to use that guarantee to force a community to admit the solicitors of publications to the home premises of its residents. We see no abridgement of the principles of the First Amendment in this ordinance. Affirmed.

MR. CHIEF JUSTICE VINSON, with whom MR. JUSTICE DOUGLAS, joins, dissenting.

The ordinance before us makes criminal the hitherto legitimate business practice of soliciting magazine subscriptions from door to door without prior invitation of the home owner. Looking only to the face of that ordinance, the Court sustains it as against objections under the Due Process Clause, the Commerce Clause and the First Amendment. I dissent and would reverse the judgment below without reaching all of the issues raised, for, in my opinion, the ordinance constitutes , an undue and discriminatory burden on interstate commerce. .

The Court holds that because the “ordinance falls in the classification of regulation,” the city council is free to burden interstate commerce. 71 S. Ct., 931. In my view, the ordinance is a flat prohibition of solicitation. The Louisiana Supreme Court recognized this fact when it characterized the ordinance as “provid [ing] for a blanket prohibition of solicitation without invitation, save for food vendors, who are specifically exempt.” 27 La. at page 828, 47 So. 2d at page 556. Unlike this Court, the state court acknowledged the prohibitory character of the ordinance in rejecting appellant’s claim under the Commerce Clause in the following portion of its opinion:

“The ordinance imposes no tax, no license. It is a prohibition of an activity on local territory, involving the problematical sale of a commodity originating in another state, which is actually distributed through the United States Mails. It imposes no burden on the distribution itself, nor on the manufacture of the commodity, nor on any phase of the transportation from one place to another of that commodity.” (Emphasis in original.) 217 La. at page 829, 47 So. 2d at page 556.

At least since the decision in Robbins v. Shelby County Taxing District, 1887, 120 U. S. 489, 497, 7 S. Ct., 592, 596, 30 L. Ed. 694, this Court has regarded the process of soliciting orders for goods to be shipped across state lines as being interstate commerce as much as the transportation itself. Under the line of cases following this principle, reexamined and reaffirmed in Nippert v. Richmond, 1946, 327 U. S. 416, 66 S. Ct. 586, 90 L. Ed. 760, the process of solicitation for interstate commerce cannot be subjected to taxes, licenses or bonding requirements that in their practical operation discriminate against or unduly burden interstate commerce. The Court does not today purport to overrule this line of decisions. And it acknowledges, as it must, that the Court has sharply distinguished the process of solicitation of interstate business from the essentially local retailing operations of hawking and peddling. See Wagner v. Covington, 1919, 251 U. S. 95, 103-104, 40 S. Ct., 93, 95, 65 L. Ed. 157, and cases cited therein. Nor does the opinion dispute that this ordinance has a severe economic impact upon the substantial interstate business of appellant’s employer, as well as the entire magazine industry which derives 50 % to 60% of its annual subscription circulation from the very type of solicitation prohibited by this ordinance. I disagree with the Court in its holding that an ordinance imposing a “blanket prohibition” can be sustained under the Commerce Clause as mere regulation.

Congress is given the power “To regulate commerce * • * among the several States.” United States Constitution, Article I, Section 8, Clause 3. The doctrine of Cooley v. Board of Port Wardens, 1851, 12 How. 299, 13 L. Ed. 996, permits a state to exercise its police powers in' a manner impinging upon interstate commerce only where the subject of regulation is essentially local and then only when there is no discrimination against or undue burden on interstate commerce. This is an approach grounded in the practical, an approach which imposes upon this Court the “duty to determine whether the statute [or ordinance] under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.” Best & Co. v. Maxwell, 1940, 311 U. S. 454, 455-456, 61 S. Ct., 334, 335, 85 L. Ed. 275. That this ordinance, on its face, professes to protect the home does not relieve us of our duty to weigh the practical effect of the ordinance upon interstate commerce. Lack of discrimination on its-face has not heretofore been regarded as sufficient to sustain an ordinance without inquiry into its practical effects upon interstate commerce, E. g., Dean Milk Co. v. Madison, 1951, 340 U. S. 349, 354, 71 S. Ct., 295, 297 (prohibition against sale of milk pasteurized more than five miles from city); Real Silk Hosiery Mills v. Portland, 1925, 268 U. S. 325, 336, 45 S. Ct., 525, 526, 69 L. Ed. 982 (requirement that solicitors file bond); Minnesota v. Barber, 1890, 136 U. S. 313, 10 S. Ct., 862, 34 L. Ed. 455 (statute requiring inspection of meat within state).

In passing upon other ordinances affecting solicitors, this Court has not hesitated in noting the economic fact that “the ‘real competitors’ of [solicitors] are, among others, the local retail merchants.” Nippert v. Richmond, supra, 327 U. S. at page 433, 66 S. Ct., at page 594, citing Best & Co. v. Maxwell, supra. See also Robbins v. Shelby County Taxing District, supra, 120 U. S. at page 498, 7 S. Ct., 596. The Court acknowledges “effective competition” between solicitors and the local retail merchants, 71 S. Ct., 924, but is deliberate in its refusal to appraise the practical effect of this ordinance as a deterrent to interstate commerce, 71 S. Ct., 931. I think it plain that a “blanket prohibition” upon appellant’s solicitation discriminates against and unduly burdens interstate commerce in favoring local retail merchants. “Whether or not it was so intended, those are its necessary effects.” Nippert v. Richmond, supra, 327 U. S. at page 434, 66 S. Ct., at page 595. The fact that this ordinance exempts solicitation by the essentially local purveyors of farm products shows that local economic interests are relieved of the burdensome effects of the ordinance. No one doubts that protection of the home is a proper subject of legislation, but that end can be served without prohibiting interstate commerce. Our prior decisions cannot be avoided by limiting their authority to the limited categories of tax and license. On the contrary, we must guard against state action which, “ ‘in any form or under any guise, directly burden [s] the prosecution of interstate business’.” Baldwin v. G. A. F. Seelig, Inc., 1935, 294 U. S. 511, 522, 55 S. Ct., 497, 500, 79 L. Ed. 1032, citing International Textbook Co. v. Pigg, 1910, 217 U. S. 91, 112, 30 S. Ct., 481, 487, 54 L. Ed. 878. See also Hood & Sons v. DuMond, 1949, 336 U. S. 525, 69 S. Ct., 657, 93 L. Ed. 865. I cannot, agree that this Court should defer to the City Council of Alexandria as though we had before us an act of Congress regulating commerce. See 71 S. Ct., 931. “[T]his Court, and not the state legislature [or the city council], is under the commerce clause the final arbiter of the competing demands of state [or local] and national interests.” Southern Pacific Co. v. Arizona, 1945, 325 U. S. 761, 769, 65 S. Ct., 1515, 1520, 89 L. Ed. 1915.

The Court relies upon Bunger v. Green River, 1937, 300 U. S. 638, 57 S. Ct., 510, 81 L. Ed. 854, where the conviction of a Fuller Brush man was sustained under an ordinance akin to the one before us. The order was entered without argument, without opinion and with citation of the three cases discussed by the Court, 71 S. Ct., 927, each of which cases sustained as “incidental” to interstate commerce state action regulating local inspection and feeding of cattle, and the sale of produce.

I would apply to this case the principles so recently announced in Dean Milk Co. v. Madison, 1951, 340 U. S. 349, 71 S. Ct., 295. In the course of its discussion of our Dean Milk decision, the Court remarks that in the instant case “Interstate commerce itself knocks on the local door.” 71 S. Ct., 929. As I read the prior decisions of this Court, that fact, far from justifying avoidance of Dean Milk, buttresses my conclusion that the ordinance cannot be applied to appellant consonant with the Commerce Clause.

MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, dissenting.

On May 3, 1943, this Court held that cities and states could not enforce laws which impose flat taxes on the privilege of door-to-door sales of religious literature, Jones v. Opelika, 319 U. S. 103, 63 S. Ct., 890, 87 L. Ed. 1290; Murdock v. Com. of Pennsylvania, 319 U. S. 105, 63 S. Ct., 870, 87 L. Ed. 1292, or which make it unlawful for persons to go from home to home knocking on doors and ringing doorbells to invite occupants to religious, political or other kinds of public' meetings. Martin v. Struthers, 319 U. S. 141, 63 S. Ct., 862, 87 L. Ed. 1313. Over strong dissents, these laws were held to. invade liberty of speech, press and religion in violation of the First and Fourteenth Amendments. Today a new majority adopts the position of the former dissenters and sustains a city ordinance forbidding door-to-door solicitation of subscriptions to the Saturday Evening Post, Newsweek and other magazines. Since this decision cannot be reconciled with the Jones, Murdock and Martin v. Struthers cases, it seems to me that good judicial practice calls for their forthright overruling. . But whether this is done or not, it should be plain that my disagreement with the,majority of the Court as now constituted stems basically from a different concept of the reach of the constitutional liberty of the press rather than from any difference of opinion as to what former cases have held.

Today’s decision marks a revitalization of the judicial views which prevailed before this Court embraced the philosophy that the First Amendment gives a preferred status to the liberties it protects. I adhere to that preferred position philosophy. It is my belief that the freedom of the people of this Nation cannot survive even a little governmental hobbling of religious or political ideas, whether they be communicated orally or through the press.

The constitutional sanctuary for the press must necessarily include liberty to publish and circulate. In view of our economic system, it must also include freedom to solicit paying subscribers. Of course home-owners can if they wish forbid newsboys, reporters or magazine solicitors to ring their doorbells. But when the homeowner himself has not done this, I believe that the First Amendment, interpreted with due regard for the freedoms it guarantees, bars laws like the present ordinance which punish persons who peacefully go from door to door as agents of the press.

      . Restatement of Torts, §167; Cooley, Torts (4th ed.) §248.

      . Hall v. Com. of Virginia, 188 Va. 72, 49 S. E. 2d 369, appeal dismissed 335 U. S. 875, 69 S. Ct. 240, 93 L. Ed. 418; statutes collected Martin v. City of Struthers, 319 U. S. 141, 147, note 10, 63 S. Ct. 862, 865, 87 L. Ed. 1313.

      . “We must assume that the practice existed in the town as the first section states, and that it had become annoying and disturbing and objectionable to at least some of the citizens. We think like practices have become so general and common as to be of judicial knowledge, and that the frequent ringing of doorbells of private residences by itinerant vendors and solicitors is in fact a nuisance to the occupants of homes. It is not appellee and its solicitors and their methods alone that must be considered in determining the reasonableness of the ordinance, but many others as well who seek in the same way to dispose of their wares. One follows another until the ringing doorbells disturb the quietude of the home and become a constant annoyance.” Town of Green River v. Puller Brush Co. 10 Cir., 65 P. 2d 112, 114, 88 A. L. R. 177.

      . Town of Green River v. Bunger, 50 Wyo. 52, 70, 58 P. 2d 456, 462; cf. Real Silk Hosiery Mills v. City of Richmond, D. C., 298 P. 126.

      . The ordinance now under consideration, § 3, does not apply to “the sale, or soliciting of orders for the sale, of milk, dairy products, vegetables, poultry, eggs and other farm and garden produce * * Appellant makes no point against the present ordinance on the ground of invalid classification. Cf. Tigner v. Texas, 310 U. S. 141, 60 S. Ct. 879, 84 L. Ed. 1124; Williams v. Arkansas, 217 U. S. 79, 90, 30 S. Ct. 493, 495, 54 L. Ed. 673.

      . The validity of Green River ordinances has also been eonsidered in a number of state courts. Five states — Colorado, Louisiana (in cases previous to the instant one), New Mexico, New York, and Wyoming — have upheld the ordinance, against objections that it was beyond the scope of the police power, deprived vendors of property rights without due process of law, deprived them of the equal protection of the laws and infringed upon the Commerce Clause, and the First and Fourteenth Amendments. McCormick v. City of Montrose, 105 Colo. 493, 99 P. 2d 969; Shreveport v. Cunningham, 190 La. 481, 482, 182 So. 649; City of Alexandria v. Jones, 216 La. 923, 45 So. 2d 79; Green v. Gallup, 46 N. M. 71, 120 P. 2d 619; People v. Bohnke, 287 N. Y. 154, 38 N. E. 2d 478; Green River v. Bunger, 50 Wyo. 52, 58 P. 2d 456.
      Eleven states, on the other hand, have held such ordinances invalid. All of these states acted in part at least on nonfederal grounds, and the only federal constitutional argument, which was considered by three states, was that based on the Due Process Clause. No state court, in voiding the ordinance, has reached the Commerce Clause or the First Amendment issues urged here. The principal grounds relied on have been that the prohibited conduct amounted at most only to a private nuisance and not a public one; that there was no showing of injury to public health or safety by the prohibited conduct; that there was a vested right in a lawful occupation, so that it was subject only to regulation but not to prohibition; and that the ordinance was beyond the delegatd powers of the municipality. Prior v. White, 182 Fla. 1, 180 So. 847, 116 A. L. R. 1176 (not more than a private nuisance); Clay v. Matthews, 185 Ga. 279, 194 S. E. 172 (affirming without opinion by an evenly divided court); DeBerry v. LaGrange, 62 Ga. App. 74, 8 S. E. 2d 146 (not a nuisance; invades an inalienable right to the occupation of soliciting); Osceola v. Blair, 231 Iowa 770, 2 N. W. 2d 83 (not a nuisance, deprives persons of a property right in their occupation); City of Mt. Sterling v. Donaldson Baking Co., 287 Ky. 781, 155 S. W. 2d 237 (not a public nuisance, beyond the scope of the municipal police power); Jewel Tea Co. v. Bel Air, 172 Md. 536, 192 A. 417 (not a nuisance, not within delegated powers of municipality); Jewel Tea Co. v. Geneva, 137 Neb. 768, 291 N. W. 664 (not a public nuisance, arbitrary, violates ' Due Process Clause, citing Jay Burns Baking Co. v. Bryan, 264 U. S. 504, 44 S. Ct., 412, 68 L. Ed. 813); N. J. Good Humor, Inc., v. Board of Commissioners, 124 N. J. L. 162, 11 A. 2d 133 (not a valid police regulation, beyond powers of municipality); McAlester v. Grand Union Tea Co., 186 Okl. 487, 98 P. 2d 924 (only a private nuisance); City of Orangeburg v. Farmer, 181 S. C. 143, 186 S. E. 783 (unreasonable, prohibits a lawful occupation, in violation of state and federal due process, enacted with improper motive); Ex parte Faulkner, 143 Tex. Cr. R. 272, 158 S. W. 2d 525 (beyond the powers of the municipality); White v. Town of Culpeper, 172 Va. 630, 1 S. E. 2d 269 (not a public nuisance).
      The ordinances in the Bel Air and Culpeper cases contained discriminatory provisions not involved in the instant case. It should be noted also that while New York upheld the ordinance in Bohnke, supra, as applied to distribution of religious tracts, that case was decided before this Court’s decision in Martin v. City of Struthers, 319 U. S. 141, 63 S. Ct., 862, 87 L. Ed. 1313. Enforcement of Green River ordinances has subsequently been enjoined as against members of the Jehovah’s Witnesses sect, in Donley v. Colorado Springs, D. C., 40 F. Supp. 15, and Zimmerman v. Village of London, D. C. Ohio, 38 F. Supp. 582.

      . He cited: Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 45 S. Ct. 525, 69 L. Ed. 982; DiSanto v. Pennsylvania, 273 U. S. 34, 47 S. Ct. 267, 71 L. Ed. 524; International Textbook Co. v. Pigg, 217 XJ. S. 91, 30 S. Ct. 481, 54 L. Ed. 678; Rogers v. Arkansas, 227 U. S. 401, 33 S. Ct. 298, 57 L. Ed. 569; Robbins v. Shelby Taxing District, 120 U. S. 489, 7 S. Ct. 592, 30 L. Ed. 694; Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 55 S. Ct. 497, 79 L. Ed. 1032; Stewart v. People of State of Michigan, 232 U. S. 665, 34 S. Ct. 476, 58 L. Ed. 786.

      . An ordinance forbidding the sale of cigarettes without a license was upheld.
      “Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for Federal interference.” 177 U. S. at page 188, 20 S. Ct. at page 635.

      . A statute making it unlawful to refuse a purchaser of a ticket admission to a place of public entertainment except in certain circumstances relating to drunkenness and vice, was upheld.
      “Does the statute deprive the defendant of any property right without due process of law? We answer this question in the negative. Decisions of this court, familiar to ■ all, and which need not be cited, recognize the possession, by each state, of powers never surrendered to the general government; which powers the state, except as restrained by its own Constitution or the Constitution of the United States, may exert not only for the public health, the public morals, and the public safety, but for the general or common good, for the well-being comfort, and good order of the people.” 204 U. S. at page 363, 27 S. Ct. at page 386.
      “Such a regulation, in itself just, is likewise promotive of peace and good order among those who attend places of public entertainment or amusement.” 204 U. S. at page 364, 27 S. Ct. at page 386.

      . The following sections of a statute of Arkansas, Acts 1907, Act No. 236, were upheld:
      “ ‘Sec. 1. That it shall be unlawful for any person or persons, except as hereinafter provided in § 2 of this act, to drum or solicit business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, on the trains, cars, depots of any railroad or common carrier operating or running within the state of Arkansas.
      “ ‘Sec. 2. That it shall be unlawful for any railroad or common carrier operating a line within the state of Arkansas knowingly to permit its trains, cars, or depots within the state to be used by any person or persons for drumming or soliciting business or patronage for any hotel, lodging house, eating house, bath house, physician, masseur, surgeon, or other medical practitioner, or drumming or soliciting for any business or profession whatsoever; * * 217 U. S. 86, 30 S. Ct. 493.
      This Court said:
      “Drummers who swarm through the trains soliciting for physicians, bath houses, hotels, etc., make existence a burden to those who are subjected to their repeated solicitations. It is true that the traveler may turn a deaf -ear to these importunities, but this does not render it any the less unpleasant and annoying. The drummer may keep within the law against disorderly conduct, and still render himself a source of annoyance to travelers by his much beseeching to be allowed to lead the way to a doctor or a hotel.” 217 U. S. 89, 30 S. Ct. 495.

      . But cf. Jensen, Burdening Interstate Direct Selling, 12 Rocky Mtn. L. Rev. 257, 275: “To disclaim this economic effect of upholding the ordinance and to suggest other methods of merchandising to direct-selling businesses short of local retailing, as-was done by the Tenth Circuit Court of Appeals [65 F. 2d 112], shows a woeful lack of knowledge of the actual problems of direct-to-consumer merchandising.”

      . Nebbia v. People of State of New York, 291 U. S. 502, 523, 54 S. Ct. 505, 510, 78 L. Ed. 940:
      .“Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest.” Railway Express Co. v. New York, 336 U. S. 106, 69 S. Ct. 463, 93 L. Ed. 533; Daniel, Attorney General v. Family Security Life Ins. Co., 336 U. S. 220, 69 S. Ct. 550, 93 L. Ed. 632.

      . State of Arizona v. California, 283 U. S. 423, 454-455, 51 S. Ct. 522, 525, 526, 75 L. Ed. 1154; Henneford v. Silas Mason Co., 300 U. S. 577, 586, 57 S. Ct. 524, 528, 81 L. Ed. 814.

      . Constitution, Art. I, § 8, cl. 3.

      . The cases cited for Bunger may be easily distinguished. The cases of the Shelby County Taxing District, Rogers v. Arkansas, 227 U. S. 401, 33 S. Ct. 298, 57 L. Ed. 569, and Stewart v. Michigan, 232 U. S. 665, 34 S. Ct. 476, 58 L. Ed. 786, relate to taxes upon or licenses to do an interstate business. The same is true of Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 45 S. Ct. 525, 526, 69 L. Ed. 982. There is, however, in this latter case a statement that should be noticed: “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. See Shafer v. Farmers’ Grain Co., 268 U. S. 189, 45 S. Ct. 481, 69 L. Ed. 909.” 268 U. S. at page 336, 45 S. Ct. at page 526. That should be read as a comment on an ordinance requiring a license and a bond to carry on interstate business. Cf. Parker v. Brown, 317 U. S. 341, 361, 63 S. Ct. 307, 318, 87 L. Ed. 315.
      The statute held invalid in the International Textbook ease (International Textbook Co. v. Pigg), 217 U. S. 91, 30 S. Ct. 481, 54 L. Ed. 678, was one construed to require a license to transact interstate business. Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 55 S. Ct. 497, 79 L. Ed. 1032, held invalid a state law prohibiting the sale of milk imported from another state unless the price paid in the selling state reached the minimum price requirement of sellers in the regulating state. The DiSanto case (DiSanto v. Pennsylvania), 273 U. S. 34, 47 S. Ct. 267, 71 L. Ed. 524, holding invalid a state law requiring steamship agents to procure a license as a direct burden on commerce, can' no longer be cited as authority for such a ruling. California v. Thompson, 313 U. S. 109, 115, 61 S. Ct. 930, 933, 85 L. Ed. 1219.
      None of these cases reach the problem here under consideration of local regulation of solicitor’s conduct.

      . Kelly v. Washington, 302 U. S. 1, 9-10, 58 S. Ct. 87, 92, 82 L. Ed. 3.

      . Cooley v. Board of Wardens, 12 How. 299, 13 L. Ed. 996; Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 L. Ed. 430; Austin v. Tennessee, 179 U. S. 343, 21 S. Ct. 132, 45 L. Ed. 224; The Minnesota Rate Cases (Simpson v. Shepard), 230 U. S. 352, 402, 408, 33 S. Ct. 729, 741, 743, 57 L. Ed. 1511; South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177, 187, 625, 58 S. Ct. 510, 514, 82 L. Ed. 734; California v. Thompson, 313 U. S. 109, 61 S. Ct. 930; Parker v. Brown, 317 U. S. 341, 359, 362, 63 S. Ct. 307, 317, 319, 87 L. Ed. 315; Toomer v. Witsell 334 U. S. 385, 394, 68 S. Ct. 1156, 1161, 92 L. Ed. 1460; Panhandle Eastern Pipe Line Co. v. Michigan Pub. Serv. Comm., 71 S. Ct. 777.
      “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 business 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 * * *’. Nor may the prohibition be accomplished in the guise of taxation which produces the excluding or discriminatory effect.” Nippert v. Richmond, 327 U. S. 416, 425-426, 66 S. Ct. 586, 590, 90 L. Ed. 760.
      And cf. Nelson v. Sears, Roebuck & Co., 312 U. S. 359, 61 S. Ct. 586, 85 L. Ed. 888, where the maintenance of retail stores within a state by a corporation engaged in direct mail selling was held to permit the state to tax such sales to its residents even though none of the corporation’s agents within the state had any connection with the sales.

      . “The solicitation of subscriptions in the field regularly accounts'for from 50% to 60% of the total annual subscription circulation of nationally-distributed magazines which submit verified circulation reports to the Audit Bureau of Circulations. * * * During the period from 1925 to date, the average circulation per issue of such magazines attributable to field subscription solicitation, * * * has amounted to more than 30% of the total average annual circulation per issue * * The total subscription value obtained by Keystone Readers Service, appellant’s employer, in 1948 was $5,319,423.40. There is a national association of magazine publishers, a trade organization whose members publish some 400 nationally distributed magazines with a combined circulation of 140 million copies. This association sponsors and maintains a central registry plan to which agencies like Keystone, soliciting subscriptions, belong.

      . “Incidental” as a test has not continued as a useful manner for determining the validity of local regulation of matters affecting interstate commerce.
      “Such regulations by the state are to be sustained, not because they are ‘indirect’ rather than ‘direct,’ * * * not because they control interstate activities in such a manner as only to affect the commerce rather than to command its operations. But they are to be upheld because upon a consideration of all the relevant facts and circumstances it appears that the matter is one which may appropriately be regulated in the interest of the safety, health and well-being of local communities, and which, because of its local character and the practical difficulties involved, may never be adequately dealt with by Congress.” Parker v. Brown, 317 U. S. 341, 362-363, 63 S. Ct. 307, 319, 87 L. Ed. 315.

      . So far as this argument seeks to blame the passage of the ordinance on local retailers, we disregard it. Such arguments should be presented to legislators, not to courts. Arizona v. California, 283 U. S. 423, 455, 51 S. Ct. 522, 75 L. Ed. 1154. See 71 S. Ct. 927, supra.

      . 340 U. S. at pages 354-355, 71 S. Ct. at page 298:
      “If the City of Madison prefers to rely upon its own officials for inspection of distant milk sources, such inspection is readily -/pen to it without hardship for it could charge the actual and reasonable cost of such inspection to the importing producers and processors.”

      . 336 U. S. 525, 531-532, 533, 69 S. Ct. 657, 662, 93 L. Ed. 865:
      “It [the opinion in Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 55 S. Ct. 497, 79 L. Ed. 1032] recognized, as do we, broad power in the State to protect its inhabitants against perils to health or safety, fraudulent traders and highway hazards, even by use of measures which bear adversely upon interstate commeree. But it laid repeated emphasis upon the principle that the State may not promote its own economic advantages by curtailment or burdening of interstate commerce.
      “This distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law.”

      . Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 59 S. Ct. 528, 83 L. Ed. 752.

      . Giragi v. Moore, 301 U. S. 670, 57 S. Ct. 946, 81 L. Ed. 1334; Id., 48 Ariz. 33, 58 P. 2d 1249, 110 A. L. R. 314; Id., 49 Ariz. 74, 64 P. 2d. 819, 110 A. L. R. 320; Associated Press v. National Labor Relations Board, 301 U. S. 103, 132-133, 57 S. Ct. 650, 655, 656, 81 L. Ed. 953; Associated Press v. United States, 326, U. S. 1, 7, 65 S. Ct. 1416, 1418, 89 L. Ed. 2013.

      . Emert v. Missouri, 156 U. S. 296, 15 S. Ct. 367, 39 L. Ed. 430; see Commonwealth v. Ober, 12 Cush., Mass., 493; Crenshaw v. Arkansas, 227 U. S. 389, 399-400, 33 S. Ct. 294, 297, 57 L. Ed. 565; Rogers v. Arkansas, 227 U. S. 401, 33 S. Ct. 298, 57 L. Ed. 569; Caskey Baking Co. v. Com. of Virginia, 313 U. S. 117, 119, 61 S. Ct. 881, 882, 85 L. Ed. 1223.

      . McGoldrick v. Berwind-White Co., 309 U. S. 33, 55-57, 60 S. Ct. 388, 397-398, 84 L. Ed. 565; Nippert v. Richmond, 327 U. S. 416, 421-425, 66 S. Ct. 586, 588-590.

      . “House to house canvassing raises more serious problems. Of all the methods of spreading unpopular ideas, this seems the least entitled to extensive protection. The possibilities of persuasion are slight compared with the certainties of annoyance. Great as is the value of exposing citizens to novel views, home is one place where a man ought to be able to shut himself up in his own ideas if he desires. There he should be free not only from unreasonable searches and seizures but also from hearing uninvited strangers expound distasteful doctrines. A doorbell cannot be disregarded like a handbill. It takes several minutes to ascertain the purpose of a propagandist and at least several more to get rid of him. * * * Moreover, hospitable housewives dislike to leave a visitor on a windy doorstep while he explains his errand, yet once he is inside the house robbery or worse may happen. So peddlers of ideas and salesmen of salvation in odd brands seem to call for regulation as much as the regular run of commercial canvassers. * * * Freedom of the home is as important as freedom of speech. I cannot help wondering whether, the Justices of the Supreme Court are quite aware of the effect of organized front-door instrusions upon people who are not sheltered from zealots and imposters by a staff of servants or the locked entrance of an apartment house.”

      . Kovacs v. Cooper, 366 U. S. 77, 83, 69 S. Ct. 448, 451, 93 L. Ed. 513.

      . United States v. Carolene Products Co., 304 U. S. 144, 154, 58 S. Ct. 778, 784, 82 L. Ed. 1234: “But by their vary nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. Here the demurrer challenges the validity of the statute on its face and it is evident from all the considerations presented to Congress, and those of which we may take • judicial notice, that the question is at least debatable whether commerce in filled milk should be left unregulated, or in some measure restricted, or wholly prohibited. As that decision was for Congress, neither the finding of a court arrived at by weighing the evidence, nor the verdict of a jury can be substituted for it.”
      See Jamison v. Texas, 318 U. S. 413, 63 S. Ct. 669, 87 L. Ed. 869; Skiriotes v. Florida, 313 U. S. 69, 79, 61 S. Ct. 924, 930, 85 L. Ed. 1193; Hebert v. Louisiana, 272 U. S. 312, 316, 47 S. Ct. 103, 104, 71 L. Ed. 270.

      . Cf. Martin v. Struthers 319 U. S. 141, 146, 63 S. Ct. 862, 864, 87 L. Ed. 1313; Lovell v. City of Griffin, 303 U. S. 444, 452, 58 S. Ct. 666, 669, 82 L. Ed. 949.

      . Thomas v. Collins, 323 U. S. 516, 531, 65 S. Ct. 315, 323, 89 L. Ed. 430.

      . Cf. Kovacs v. Cooper, 336 U. S. 77, 88, note 14; concurrence at page 90, 69 S. Ct. 448, 454, 455. 93 L. Ed. 513. See note 24, supra.

      . Cantwell v. Connecticut, 310 U. S. 296, 303, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213; Cox v. New Hampshire, 312 U. S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Chaplinsky v. New Hampshire, 315 U. S. 568, 62 S. Ct. 766, 86 L. Ed. 1031; Murdock v. Pennsylvania, 319 U. S. 105, 109-110, 63 S. Ct. 870, 873, 87 L. Ed. 1292; Prince v. Massachusetts, 321 U. S. 158, 166, 64 S. Ct. 438. 442, 88 L. Ed. 645; Saia v. New York, 334 U. S. 558, 561, 68 S. Ct. 1148, 1150, 92 L. Ed. 1574; Feiner v. New York, 340 U. S. 315, 71 S. Ct. 303. See the collection of cases in Niemotko v. Maryland, 340 U. S. 268, at page 276 ff, 71 S. Ct. 325, 330.

      . These cases called forth numerous notes, e. g., 46 Col. L. Rev. 457; 34 Georgetown L. Rev. 244; 44 Mich. L. Rev. 848.

      It is passing strange that, after relying on three cases grounded solely on “incidental” as a test of validity under the Commerce Clause, the Court should itself state that such a test “has not continued as a useful manner for determining the validity of local regulation of matters affecting interstate commerce.” 71 S. Ct. 929, note 19.

      0f course I believe that the present ordinance could constitutionally be applied to a “merchant” who goes from door to door “selling pots.” Compare Martin v. Struthers, 319 U. S. 141, 144, 63 S. Ct. 862, 863, 87 L. Ed. 1313 with Valentine v. Chrestensen, 316 U. S. 52, 62 S. Ct. 920, 86 L. Ed. 1262.


author: By BADER, J.

text:
    SHEPHERD v. SHAPIRO FISHERIES, INC. et al., and six other cases.
    Common Pleas Court, Hamilton County.
    Nos. A-124649 to A-124651, A-124682, A-124777, A-124938, A-124947.
    Decided June 11, 1951.

      Robert O. Smith, Robert W. Rack, Cincinnati, for James Shepherd.
    Robert O. Smith, Cincinnati, for Charlie Williams and others.
    Baron H. Gold, Cincinnati, for Charles Farley.
    Myron S. Rudd, Cincinnati, for Joseph Tamper.
    Joseph Schwartz, Cincinnati, for C. Roy Steingrube.
    George Bailes, Cincinnati, for Melvin Newman.
    J. A. Culbertson, Cincinnati, for defendant.
   OPINION

By BADER, J.

The same motion to quash service of summons has been filed by the defendant in seven different cases against the Shapiro Fisheries, Inc. and the questions involved in all cases will be covered by this opinion.

These cases came before the Court on the motions to quash the service of summons in the respective cases for the following reasons:

1. That the defendant is not, never was and is not alleged to be the owner of the motor truck complained about in the petition herein;

2. That the petition shows the physical control and management of the said motor truck was by a person not this defendant at the time and place complained about.

3. That this Court was without 'jurisdiction to issue the pretended summons served upon defendant, and the pretended service and the return thereon are without warrant of law and of no effect.

4. Plaintiff has not pleaded jurisdictional facts to authorize issuance to and service of summons on Secretary of State.

The motion is supported by an affidavit of Bob Shapiro which sets forth in part that the truck and trailer referred to in plaintiffs’ petitions “was not owned by the said Shapiro Fisheries, Inc. at the time of the occurrence upon which said action is predicated, or at all; that the operator of the said motor truck was not the agent, servant or employee of defendant, Shapiro Fisheries, Inc., at the time of said occurrence, or at any time; and that said Shapiro Fisheries, Inc., did not have any control over the said motor truck, or the management thereof, at the time and place of the occurrence complained about, or at all.”

The defendant, Shapiro Fisheries, Inc., has also filed an application for a certificate of title for the Autocar tractor in question by one of the defendants, Walter Kniaz, and a certificate from the Secretary of State of Illinois showing that the certificate of title was issued to Walter Kniaz.

Defendants have filed several affidavits in opposition to the motion to quash, among them the affidavit of Walter Kniaz, one of the defendants, which sets forth that he owns the Autocar tractor and trailer which was involved in the accident x-eferred to in plaintiffs’ petitions. He sets forth further that this vehicle was operated by Shapiro Fisheries, Inc. and that he, as owner, had leased the same to that company and that Shapiro Fisheries, Inc. had the exclusive management thereof and that the driver, Floyd Caughlin, was under the exclusive control and direction of Shapiro Fisheries, Inc. and that the driver was the agent and servant of said Shapiro Fisheries, Inc. at the time of the accident and that the said Walter Kniaz did not have control or direction over the operation or management of the vehicle or the driver at the time of the accident.

Other affidavits indicate that the name of Shapiro Fisheries, Inc. was placed.on the side of the trailer in large permanent letters.

All of the cases- before this Court are similar and what applies to one applies to all of them in the same manner. The Court has considered the affidavits and the certificates of title and briefs presented to the Court by the respective parties as being a part of all of the cases in which Shapiro Fisheries, Inc. is defendant as though they have been separately filed in each case.

Assuming for the purpose of argument that the tractor and trailer was owned by Walter Kniaz and leased by him to Shapiro Fisheries, Inc. and that the latter operated or caused it to be operated over the roads in the State of Ohio, would service of summons as provided for in §6308-1 GO be good and valid as far as Shapiro Fisheries, Inc. was concerned?

Sec. 6308-1 GC provides: “Service of process upon nonresident owners or operators of motor vehicles. Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to nonresident operators and owners, of operating a motion vehicle, or of having the same operated, within the state of Ohio, * * * shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the secretary of state of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts ol the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.”

In the case of Pray v. Meier, 69 Oh Ap 141, 40 N. E. 2d 850, 43 N. E. 2d 318, the Court held: “The provisions of §6308-1 GC, providing for substitute service on a nonresident defendant who, while availing himself of the privileges of the highways of Ohio negligently causes injury to smother, includes with its provisions such right of service of summons through the Secretary of State, thereby conferring jurisdiction upon the courts of this state to try such cause not only as against an owner or operator who was either driving or having such vehicle driven upon the highways of this state, but also a nonresident principal or employer who directed his employee, also a nonresident, to operate the employee’s motor vehicle on the roads of Ohio while acting in the course and scope of such employee’s employment.”

On page 146 of 69 Oh Ap, on page 852 of 40 N. E. 2d the Court, in referring to §6308-1 GC, said: “The statute above quoted, when interpreted in the light of the purposes to be accomplished, clearly includes within its provisions; 1, the owner who is operating his automobile; 2, the owner whose vehicle is being operated at his command by his agent or servant; 3, a non-owner who is having the vehicle of another operated in carrying out his own purposes within the State of Ohio. The word “operator,” is thus to be understood to mean one for whose purposes a motor vehicle is being operated as well as one who is performing the physical act of operating a motor vehicle.

Such interpretation certainly does not strain or exaggerate a single word of the section, * * *.”

The Court, 69 Oh Ap on pages 146 and 147, 40 N. E. 2d on page 852, said: “The significant question is, for whose purposes and at whose direction is the vehicle being operated? The evil to be corrected; as before stated, is to provide means of calling a nonresident to the bar of justice of this State to answer the claims of our residents that while using the privileges of our highways such nonresident operator or owner through the negligent operation of' a motor vehicle caused damages.”

The defendant, Shapiro Fisheries, Inc., is a corporation and does not own the truck but if it operated the truck and trailer in question by authority of lease or otherwise it must necessarily do so through its agents or employees. A corporation is a separate .entity and and can only act through its agents.

Certainly it cannot be said that if the truck was operated by Shapiro Fisheries, Inc. or it had the same operated within the State of Ohio, it could not be held liable because it was a corporation. The Legislature of the State of Ohio did not intend that the agent of a corporation operating in the State of Ohio for Shapiro Fisheries, Inc., because he was the person in actual physical control, could be the only one held responsible and relieve the responsibility of the employer or actual operator. The Legislature intended to effect service on nonresidents against whom injured persons had claims.

Shapiro Fisheries, Inc. cannot be relieved of answering to the claims of the respective plaintiffs if it leased the truck from Walter Kniaz and operated the truck through its own agents and had exclusive control over the operations of both the agent and the tractor and trailer.

In view of the affidavits filed in the respective cases coupled with the affidavit of Walter Kniaz as to the lease of the equipment to Shapiro Fisheries, Inc. and its control as well as the fact that the name of Shapiro Fisheries, Inc. was permanently painted on the truck, leads one to believe Shapiro Fisheries, Inc. had something to do with the equipment and/or its operations.

The Court is of the opinion that the service made through the Secretary .of the State of Ohio by authority of §6308-1 GC is a good and valid service and the motion to quash 'service of summons will be overruled in each case.


text:
    SCHRODER, Trust of, In re: RHYNARD, Trustee-Appellant, CAIN, Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 678.
    Decided March 29, 1950.

      Walter F. Rhynard, Greenville, for the trustee-appellant.
    Marchal & Marchal, Greenville, for the appellee.
   OPINION

By THE COURT:

This is an appeal on law from the judgment of the Probate Court, Darke County, Ohio, dismissing an affidavit charging R. T. Cain with contempt of court. The affiant, being the trustee under the last will and testament of- Cora Schroder, deceased, in his affidavit charged R. T. Cain, a tenant upon the farm of which the affiant is trustee, with being in contempt of court and alleged nine separate grounds, all of which relate to the mismanagement of the farm by the tenant. There are no facts alleged in the affidavit which would support a proceeding under the provisions of §10506-67 GC. The complaint is intended to be a charge for contempt of court. The allegations made in the affidavit, if proven, do not constitute contempt of court. For any acts of mismanagement committed by the tenant the trustee will be required to pursue other legal or equitable remedies. Judgment affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


text:
    STATE, ex rel. SCOTT, Plaintiff, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4516.
    Decided May 9, 1951.
    John Robert Jones, Columbus, for plaintiff.
    C. William O’Neill, Atty Geni., Max H. Dennis, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an action in habeas corpus submitted upon 'a stipulation of facts. The stipulation develops that petitioner was indicted in Summit County in 1937 upon the charge of murder while attempting to perpetrate a robbery. Upon his arraignment he entered a plea of not guilty and later, expressing the desire to change his plea, withdrew his plea of not guilty and entered a plea of guilty “as he stands charged in the indictment.” No written waiver of the right to a jury trial was signed by petitioner. At all times he was represented by counsel. After the plea the presiding Judge of the Court of Common Pleas of Summit County designated two judges and the presiding judge and his associates took testimony in behalf of the state and the defendant (petitioner here), heard arguments of counsel and recommended that mercy be extended to the defendant. Thereupon on January 31, 1938, the Court sentenced him to be imprisoned in the Ohio State Penitentiary at Columbus, Ohio, during the remainder of his natural life. A mittimus was issued in conformance to the sentence and judgment and the petitioner is held by the respondent on this mittimus.

It is urged by the petitioner that this Court upon the authority of State, ex rel. Christopher v. Amrine, Superintendent, No. 167, Madison County, Ohio, 51 Abs 223, 59 Abs 295, 94 N. E. (2d) 204, should grant the writ. Counsel for the respondent asserts that the facts in this case may be differentiated from those in the Christopher case requiring a different judgment here and further that the Christopher judgment should be overruled.

In this case at the time that the case of the petitioner was heard there was by his plea but one adjudication which could be of any advantage to him, viz., a recommendation of mercy. This he secured at the hands of the three judge court. The only other adjudication that could have been made would have been a finding of guilty as,charged which finding would have carried the death sentence. So that, the petitioner by his action in entering a plea of guilty to the charge in the indictment and the proceeding subsequent thereto was protected in every right that could have been accorded to him if it be conceded that he had the right to a jury trial.

In the Christopher case the defendant pleaded guilty to unlawful homicide generally and thereby, as was stated in our opinion, was presented to the tribunal hearing the case the right to determine whether or not the defendant was guilty of first degree murder, if so, should mercy be recommended, second degree murder or manslaughter in the first degree. All of these possible findings could properly have been submitted as verdicts to a jury and the denial of the right to have them presented to a jury was a. substantial right accruing to the defendant which could be taken away from him only upon a waiver by him of that right. The statute expressly defines the way and the only way that he could interpose such a waiver. This was not done. The difference in the facts in the two cases is obvious. That which was denied Christopher may have resulted to his disadvantage and was a denial of his right to a jury trial. We held that the Court without the waiver did not have jurisdiction to make a finding and enter judgment. In the instant case had the petitioner been given all rights- to which he claims he was entitled he could have received nothing more of benefit to him. Notwithstanding the obvious situation to which we have referred, if the Court which passed judgment upon the petitioner and committed him was without jurisdiction to do so, manifestly, he should be released.

Without receding from our position in the Christopher case, we examine the law to determine if the petitioner had the right to a jury trial. Upon his plea oí guilty to the charge of first degree murder and as a prerequisite to the right of the three judge court to try him, was he required to waive the right to a jury trial as provided by §13442-4 GC?

Sec. 12400 GC defining murder in the first degree provides that one who is guilty of the offense shall “be punished by death unless the jury trying the accused recommend mercy in which case the punishment shall be imprisonment in the penitentiary during life.”

Sec. 12399 GC provides that,

“Murder in the first degree, as defined in this chapter, (in which the section is found), shall continue to be a capital offense within the meaning of the constitution.”

By'§12400 GC, a jury could only have the authority to recommend mercy if upon trial of the petitioner he was found guilty of first degree murder. Upon his plea, there was nothing which a jury was authorized to determine and a waiver is not contemplated unless such right exists.

Sec. 13448-2 GC provides that,

“where an indictment charges an offense, including different degrees, the jury may find the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense.”

The section further provides:

“If the offense charged is murder and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of the crime and pronounce sentence accordingly.”

As we view this section, it must be read with §13442-4 GC and where there is any included offense upon which a jury has a right to pass, the waiver must be made as provided in §13442-4 GC.

Sec. 13442-5 GC. The early part of this section provides that,

“where a defendant waives his right to trial by jury and elects to be tried by the judge of such court such judge shall proceed to hear, try and determine such cause, etc., provided, however, that if the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges 4 * *. Such judges or a majority of them shall have power to decide all questions of fact and law arising upon the trial, and render judgment accordingly.” This language clearly clothes the three judge court with all of the jurisdiction ordinarily exercised by a jury in the cases, to which it applied, and a written waiver is required before the court may try the accused. The section continues :

“and provided further, that if the accused plead guilty of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon the plea of guilty or after trial by the court without the intervention of a jury the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury.” (Emphasis ours.)

This last quoted sentence of the section is the exercise of a power that in no place in the Code is granted to a jury. The provision that upon conviction of the offense by a plea of guilty the court may extend mercy and reduce the punishment is an act of the court independent of and different from any verdict that could have been rendered by a jury. It relates to the judgment, the punishment which is to be a part of the sentence. The right accorded to the three judge court by the last sentence of the section which we have quoted' is not a right of trial by jury and in our judgment no waiver in writing, or otherwise, was required of the petitioner to vest the three judge court with jurisdiction to decide the case and sentence him.

The writ will be denied.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


text:
    MIAMI MOTOR SALES, INC., Plaintiff-Appellee, v. SINGLETON, Sr., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2135.
    Decided January 9, 1951.
    Shaman, Winer & Shulman, Dayton, for plaintiff-appellee.
    Garber & Nadlin, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal on the ground that defendant-appellant' failed to file his assignments of error and brief within the time prescribed by Rule VII.

This is an appeal on questions of law. The record shows that appellant failed to comply with the requirements of Rule VII.

This Court has consistently ruled that where the appellant fails to file assignments of error and brief within fifty days after the filing of notice of intention to appeal, the motion to dismiss the appeal will be sustained. See State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323, and cases cited therein.

Motion to dismiss sustained.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.