Real Silk Hosiery Mills v. City of Portland/Opinion of the Court

Appellant is an Illinois corporation engaged in manufacturing silk hosiery at Indianapolis, Ind., and selling it throughout the United States to consumers only. It employs duly accredited representatives in many states who go from house to house soliciting and accepting orders. When a willing purchaser is found, the solicitor fills out and signs in duplicate a so-called 'order blank.' This obligates appellant to make delivery of the specified goods and, among other things, states:

'The mills require a deposit of $1.00 [or other specified     sum] on each box listed below. Your hosiery will be mailed     you by parcel post c. o. d., direct from the post office      branch in our mills. Pay the balance to the postman. As the     entire business of the Real Silk Hosiery Mills is conducted      on the parcel post c. o. d. basis, our representative cannot      accept your order unless the deposit is made. We do not     accept full payment in advance. Do not pay more than printed     deposit.'

One of the copies is left with the purchaser; the other is first sent to the local sales manager and then forwarded to the mills at Indianapolis. In response thereto the goods are packed and shipped by parcel post c. o. d. direct to the purchaser. The solicitor retains the cash deposit, and this constitutes his entire compensation.

The appelland employs 2,000 representatives who solicit in most of the important cities and towns throughout the Union, and has built up a very large business $10,000,000 per annum. Twenty operate in Portland, Or.

May 16, 1923, that city passed an ordinance which requires that every person who goes from place to place taking orders for goods for future delivery and receives payment or any deposit of money in advance shall secure a license and file a bond. The license fee is $12.50 quarterly for each person on foot and $25 if he uses a vehicle. The bond must be in the penal sum of $500 and conditioned to make final delivery of ordered goods, etc.

By a bill filed in the United States District Court for Oregon, appellant challenged the ordinance and asked that its enforcement be restrained upon the ground, among others, that it interferes with and burdens interstate commerce and is repugnant to article 1, § 8, federal Constitution. The trial court upheld the enactment and sustained a motion to dismiss the bill. This was affirmed by the Circuit Court of Appeals. 297 F. 897.

Considering former opinions of this court, we cannot doubt that the ordinance materially burdens interstate commerce and conflicts with the commerce clause. Robbins v. Shelby Taxing District, 120 U.S. 489, 497, 7 S.C.t. 592, 30 L. Ed. 694; Brennan v. Titusville, 153 U.S. 289, 14 S.C.t. 829, 38 L. Ed. 719; Rearick v. Pennsylvania, 203 U.S. 507, 27 S.C.t. 159, 51 L. Ed. 295; Crenshaw v. Arkansas, 227 U.S. 389, 33 S.C.t. 294, 57 L. Ed. 565; Texas Transport Co. v. New Orleans, 264 U.S. 150, 44 S.C.t. 242, 68 L. Ed. 611, 34 A. L. R. 907; Alpha Portland Cement Co. v. Commonwealth of Massachusetts (May 4, 1925) 268 U.S. 203, 45 S.C.t. 477, 69 L. Ed. 916.

'The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce.' Manifestly, no license fee could have been required of appellant's solicitors if they had traveled at its expense and received their compensation by direct remittances from it. And we are unable to see that the burden on interstate commerce is different or less because they are paid through retention of advance partial payments made under definite contracts negotiated by them. Nor can we accept the theory that an expressed purpose to prevent possible frauds is enough to justify legislation which really interferes with the free flow of legitimate interstate commerce. See Shafer v. Farmers' Grain Co. (May 4, 1925) 268 U.S. 189, 45 S.C.t. 481, 69 L. Ed. 909. The decree of the court below must be reversed. The cause will be remanded to the District Court for further proceedings in harmony with this opinion.