State v. Mobley

66 S.E.2d 12 (1951) 234 N.C. 55

STATE
v.
MOBLEY.

No. 73.

Supreme Court of North Carolina.

July 17, 1951.

Harry McMullan, Atty. Gen. and John R. Jordan, Jr. Member of staff, Raleigh, for the State.

Battle, Winslow, Merrell & Taylor, Rocky Mount, (Joe Van Derveer, Chattanooga, Tennessee, of counsel), for defendant, appellant.

JOHNSON, Justice.

Decision here rests on the Commerce Clause of the Federal Constitution. In disposing of the appeal on that ground, these two questions are posed: (1) Was the defendant, in soliciting orders for photographs, engaged in interstate commerce? (2) If so, does the challenged statute place an undue or discriminatory burden upon such interstate commerce in violation of the Federal Constitution?

1. The question of whether the defendant was engaged in interstate commerce.— The defendant insists that in soliciting orders for photographs to be processed and manufactured in the State of Tennessee she was engaged in interstate commerce. It is her contention that the series of connected in-and-out-of-state events necessary to consummate each sale, beginning with the solicitation of the order, constitutes an integrated chain of interstate commerce. She insists that the act of soliciting the order in this state and the work of processing the negatives and that of first making the proofs and later manufacturing and finishing the photographs in the out-of-state studio, is each an essential, component part of the series of events making up one composite transaction in interstate commerce. She therefore claims the protective benefits of the Commerce Clause of the Federal Constitution, Article I, Section 8, Clause 3, which provides that: "The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; * * *"

In support of her position, the defendant cites and relies upon the long line of "drummer" decisions of the Supreme Court of the United States beginning with Robbins v. Taxing Dist. of Shelby County, 120 U.S. 489, 7 S. Ct. 592. 30 L. Ed. 694, and running through the decision in Nippert v. City of Richmond, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760.

The defendant's position appears to be well taken. It is firmly established by the "drummer" decisions that where an order is solicited by an agent and the filling of the order and delivery of the goods require their transportation from one state to another, the solicitation transaction is one of interstate commerce. Nippert v. City of Richmond, supra, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760; Real Silk Hosiery Mills v. City of Portland, 268 U.S. 325, 45 S. Ct. 525, 69 L. Ed. 982; Sonneborn Bros. v. Cureton, 262 U.S. 506, 43 S. Ct. 643, 67 L. Ed. 1095; Cheney Bros. Co. v. Com. of Massachusetts, 246 U.S. 147, 38 S. Ct. 295, 62 L. Ed. 632; Crenshaw v. State of Arkansas, 227 U.S. 389, 33 S. Ct. 294, 57 L. Ed. 565; Dozier v. State of Alabama, 218 U.S. 124, 30 S. Ct. 649, 54 L. Ed. 965; Rearick v. Com. of Pennsylvania, 203 U.S. 507, 27 S. Ct. 159, 51 L. Ed. 295; Caldwell v. State of North Carolina, 187 U.S. 622, 23 S. Ct. 229, 47 L. Ed. 336; Stockard v. Morgan, 185 U.S. 27, 22 S. Ct. 576, 46 L. Ed. 785; Brennan v. City of Titusville, 153 U.S. 289, 14 S. Ct. 829, 38 L. Ed. 719; Asher v. State of Texas, 128 U.S. 129, 9 S. Ct. 1, 32 L. Ed. 368; Corson v. State of Maryland, 120 U.S. 502, 7 S. Ct. 655, 30 L. Ed. 699; Robbins v. Taxing Dist., 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694. See Annotations: 60 A.L.R. 994; 101 A.L.R. 126; 146 A.L.R. 941.

All the more is the act of solicitation an integral part of interstate commerce where, as in the instant case, the order obtained is subject to acceptance or rejection by the out-of-state principal. Stockard v. Morgan, supra, 185 U.S. 27, 22 S. Ct. 576, 46 L. Ed. 785. See Annotation: 60 A.L.R. 994, p. 1000 et seq.

The State, in urging that the defendant's activities in soliciting the orders for photographs may be treated as a purely local incident having no substantial relation to interstate commerce, cites and relies upon Lucas v. City of Charlotte, 4 Cir., 86 F.2d 394, 396, 109 A.L.R. 297. That case, however, is not controlling. There the plaintiffs owned a studio in St. Paul, Minnesota, and were engaged in operating a transient photographic business, with salesman and photographers operating in North Carolina under a plan of operation similar to that in the instant case. The plaintiffs brought suit in the United States District Court asking for injunctive relief against the collection of state and municipal license taxes sought to be collected as against both the convassers and photographers, alleging that their dual-state operations amounted to interstate commerce and that the taxes complained of were unduly burdensome and discriminatory. The district court dismissed the bill. 14 F. Supp. 163. On appeal, the Circuit Court in its opinion stated: "We do not think that the fact that the negatives of the photographs, after the taking, are sent away to Minnesota to be finished, makes the transaction one of interstate commerce. The actual work of the photographer is done in the state and the mechanical finishing of the negative does not change the fact that the photographer is carrying on his business in the City of Charlotte and the State of North Carolina." The court then, on finding that the amount of taxes involved did not exceed $75 per annum, held that "this amount was inadequate to confer jurisdiction upon the court," and thereupon affirmed the action of the lower court in dismissing the bill. It may be significant that the lower district court in dismissing the bill had rested its decision, in part at least, on the ground that the plaintiffs had an adequate remedy at law, and also that the bill was defective for misjoinder of parties, it appearing that both municipal and state taxing authorities had been joined in one action. Consequently, in the light of these background facts, it may well be that the Circuit Court in reaching its decision gave only oblique consideration to the interstate commerce phase of the case. Also, in the cited Lucas case it appears that the facts in respect to the details of the out-of-state processing and finishing work may not have been developed before the court so as to show, as in the instant case, the importance of these phases of the picture making business. Hence, the facts there may have been treated as being different from those in the instant case. But be that as it may, on the evidence disclosed by this record we are constrained to treat the out-of-state activities of processing the negatives and the actual making of the photographs of sufficient importance to make the composite transaction one of interstate commerce. Here it has been made to appear that the details of the work surrounding the development of the negatives, the processing of the proofs, and the manufacturing of the portraits in the studio, after developing the raw negatives, are among the most vital phases of the picture making business. To appraise these out-of-state events other than as essential parts of an interstate commercial transaction would be to ignore natural logic and the practical import of these essential phases of picture making.

While Lucas v. City of Charlotte, supra, 4 Cir., 86 F.2d 394, 109 A.L.R. 297, was decided in 1936, according to Shepard's Citation Service it has been cited with approval in only one case,—Craig v. Mills, 203 Miss. 692, 33 So. 2d 801, 802 (decided in January, 1948), which is a photography case involving substantially the same plan of in-and-out-of-state operations as the instant case. The Craig case is also cited and relied upon by the State in support of its contention that the incident of solicitation should be treated as a purely local activity, not involving interstate commerce. A study of the Craig case reveals, however, that while it cites and approves the Lucas case on the principle of dissecting integrated interstate commercial transactions, nevertheless the court declined to enforce the Mississippi license tax against the studio's solicitors. In the cited Craig case, the State of Mississippi had levied a license tax as follows: "Upon each person engaged in the business of selling, delivering or handling photographic coupons, certificates, or other devices used as or in exchange on photographs, or making or developing such photographs so procured to be made, the word person herein meaning, or limited to, an individual human being or person taking photographs in this state and developing same outside this state, as follows:" (Rates, $10 to $25, depending on size of municipality in which operations were conducted).

The partnership of Olan Mills brought suit against the state tax collector to restrain the attempted collection of license taxes from each of its canvassers, photographers, and proof-passers. It was the contention of the plaintiff Studio that the collection of a separate tax from each of the members of these three groups of its employees would unduly burden the business. The Mississippi court, acknowledging that there was "considerable merit in the contention," interpreted the taxing statute as being inoperative as to the canvassers and proof-passers, thus leaving the statute to apply only to the photographers. It follows, therefore, that since the canvassers were relieved of the tax, the decision is only collaterally relevant to the question involved in the instant case dealing only with canvassers. The decision in the Craig case concedes that the plaintiff's business operations were of an interstate character. However, in sustaining the tax on the photographers, the court held that "The interstate commerce does not begin until after the work of the photographer in taking the negative is completed."

Thus, the two decisions, Lucas v. City of Charlotte, supra, and Craig v. Mills, supra, relied upon by the State, are fundamentally inconsistent. The Lucas case treats the out-of-state processing of negatives into proofs and the subsequent manufacturing of photographs as incidental, immaterial contributions to a purely local business activity, not amounting in any aspect to interstate commerce. Whereas, the Craig case recognizes that the operation of a between-states photographic business, like the one involved in the instant case, is interstate commerce, but holds that the business does not take on its interstate character until the work of both the salesman taking the orders and that of the photographer in making the exposure is over. It follows, therefore, that these two cases may not be reconciled, and both cases being at variance with the long line of determinative decisions of the Supreme Court of the United States and state courts of last resort repudiating or refusing to follow these suggested principles of dissecting and isolating integrated interstate commercial transactions, neither case may be treated here as authoritative. Nippert v. City of Richmond, supra, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760; Real Silk Hosiery Mills v. City of Portland, supra, 268 U.S. 325, 45 S. Ct. 525, 69 L. Ed. 982; Warren Kay Vantine Studio v. City of Portsmouth, 95 N.H. 171, 59 A.2d 475; Graves v. City of Gainesville, 78 Ga.App. 186, 51 S.E.2d 58; Olan Mills, Inc., v. City of Tallahassee, Fla., 43 So. 2d 521; Nicholson v. City of Forrest City, 216 Ark. 808, 228 S.W.2d 53. See also collection of decisions, Annotation 60 A.L.R. 996, p. 1000; and 11 Am.Jur., Commerce, Sec. 46, p. 45.

The recent decision of the Supreme Court of the United States in Nippert v. City of Richmond, supra, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760, seems to be decisive of the question here presented. There the appellant was engaged in soliciting orders in Richmond for a $2.98 ladies garment made by a Washington, D. C. manufacturer. Under the manufacturer's plan of operations, the defendant on taking an order received from the purchaser a small down payment which paid her commission. The order was then mailed to the home office in Washington from whence the garment was sent through the mails, C.O.D. for the balance, to the purchaser. The orders were taken subject to out-of-state confirmation. The appellant had not complied with an ordinance of the City of Richmond which required a solicitor like her to pay a fixed-sum annual license fee of $50. There, as here, it was urged that the incident of solicitation was a purely local transaction, which might be singled out and treated for local tax purposes "as separate and distinct from transportation or intercourse" in interstate commerce. There the attempt to isolate from an integrated chain of interstate transactions the important event of soliciting the order was disposed of by Mr. Justice Rutledge in this summary manner: "If the only thing necessary to sustain a state tax bearing upon interstate commerce were to discover some local incident which might be regarded as separate and distinct from `the transportation or intercourse which is' the commerce itself and then to lay the tax on that incident, all interstate commerce could be subjected to state taxation and without regard to the substantial economic effects of the tax upon the commerce. For the situation is difficult to think of in which some incident of an interstate transaction taking place within a state could not be segregated by an act of mental gymnastics and made the fulcrum of the tax. All interstate commerce takes place(s) within the confines of the states and necessarily involves `incidents' occurring within each state through which it passes or with which it is connected in fact. And there is no known limit to the human mind's capacity to carve out from what is an entire or integral economic process particular phases or incidents, label them as `separate and distinct' or `local,' and thus achieve its desired result." 327 U.S. 416, 66 S. Ct. 589, 90 L. Ed. 764.

Lucas v. City of Charlotte, supra, was decided in the Circuit Court of Appeals in 1936. Nippert v. Richmond, supra, was decided by the Supreme Court of the United States in 1945. Yet, in the Nippert decision the Court refused to treat the incident of solicitation as a purely local event and made no reference to the Lucas case, either in the opinion proper or in any of the footnotes.

It is also significant that a number of state courts, in dealing with in-and-out-of-state photographic transactions like those here involved, have followed the Nippert case in applying the principle that the incident of solicitation is an integral part of interstate commerce which may not be isolated and segregated:

In Warren Kay Vantine Studio v. City of Portsmouth, supra, 95 N.H. 171, 59 A.2d 475, decided 1 June, 1948, solicitors were canvassing high school graduating classes in the state of New Hampshire for a Massachusetts studio. The exposures were to be made by cameramen in New Hampshire, the negatives to be processed and developed and the photographs made in Massachusetts. There a fixed-sum license tax on both the solicitors and the cameramen was challenged as being violative of the Commerce Clause. It was there held, with the court citing the Nippert case, that the work of the solicitors, as well as that of the cameramen, was interstate commerce, and the tax statute was declared inoperative.

In Graves v. City of Gainesville, supra, 78 Ga.App. 186, 51 S.E.2d 58, decided 3 December, 1948, canvassers and cameramen were operating in the state of Georgia as agents of an Alabama studio. The plan of operations was substantially the same as in the instant case. There the statute imposed a fixed-sum tax on itinerant photographers. The statute was challenged as being violative of the Commerce Clause. The challenge was sustained, with the Nippert case being cited with approval.

Olan Mills Inc. of Alabama v. City of Tallahassee, supra, Fla., 43 So. 2d 521, decided 23 December, 1949, is another photography case. It involves facts substantially similar to those in the instant case. There a city ordinance levied a fixed-sum license tax on the solicitors, the photographers, and the proof-passers, as in the Mississippi case of Craig v. Olan Mills, supra, 203 Miss. 692, 33 So. 2d 801. There, as here, it was urged that the whole business should be treated as local, intrastate commerce, with the State relying upon the Lucas case. However, the Florida court treated the Lucas case as not being authoritative, and held that the complainant's business was properly classified as interstate commerce. Accordingly, the challenged ordinance, as applicable to complainant, was held inoperative as being unduly burdensome and discriminatory. The opinion cites and follows Nippert v. City of Richmond, supra, 327 U.S. 416, 66 S. Ct. 586, 90 L. Ed. 760; Graves v. Gainesville, supra, 78 Ga.App. 186, 51 S.E.2d 58; and Warren Kay Vantine Studio v. City of Portsmouth, supra, 95 N.H. 171, 59 A.2d 475.

Nicholson v. City of Forrest City, supra, 216 Ark. 808, 228 S.W.2d 53, decided 6 March, 1950, is also a photography case. The plan of operations was practically the same as in the instant case. There the solicitors, the photographers, and the proof-passers, like the defendant in the case at bar, were agents of Olan Mills, Inc. of Chattanooga, Tennessee. There, as in the Florida case of Olan Mills, Inc. v. City of Tallahassee, supra, Fla., 43 So. 2d 521, the city ordinance levied a fixed-sum tax on the three groups of field representatives, namely: the solicitors, the photographers, and the proof-passers. The activities of these three groups of field representatives were treated as being integrated parts of a series of acts constituting interstate commerce. The decision turns on the Nippert case, which is cited with approval. The challenged ordinance was declared inoperative as to all three groups, as being violative of the Commerce Clause.

Such has been the thread of authoritative decision since the first "drummer" case in 1886, Robbins v. Shelby County Taxing District, supra. It is in line with the observation of Mr. Justice Van Devanter in commenting upon the bounds and limits of the Commerce Clause in Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 42 S. Ct. 106, 108, 66 L. Ed. 239, top p. 244, when he said that interstate commerce "comprehends all commercial intercourse between different states and all the component parts of that intercourse."

That the bounds and limits of "interstate commerce" should so encompass "all the component parts" of commercial intercourse "among * * * the several states," is in harmony with the purpose of the Founding Fathers in delegating to Congress the power to regulate interstate commerce, as aptly expressed by Mr. Justice Daniel in delivering the opinion in Veazie v. Moor, 14 How. 568, 55 U.S. 568, 14 L. Ed. 543, top p. 548: "The design and object of that power, as evinced in the history of the Constitution, was to establish a perfect equality amongst the several states as to commercial rights, and to prevent unjust and invidious distinctions, which local jealousies or local and partial interests might be disposed to introduce and maintain."

We hold, therefore, that the defendant in soliciting orders for photographs was engaged in interstate commerce.

2. The question of undue burden on interstate commerce,—The Commerce Clause of the Federal Constitution, Article I, Section 8, Clause 3, "expressly commits to Congress and impliedly withholds from the several states the power to regulate commerce among" the states. Dahnke-Walker Milling Co. v. Bondurant, supra, 257 U.S. 282, 42 S. Ct. 106, 108, 66 L. Ed. 239, bot. p. 243. See also Com. of Pennsylvania v. State of West Virginia, 262 U.S. 553, 43 S. Ct. 658, 67 L. Ed. 1117, p. 1132.

This is not to say, however, that the constitutional grant to Congress of the power to regulate interstate commerce forestalls all state actions affecting such commerce. South Carolina State Highway Dept. v. Barnwell Brothers, 303 U.S. 177, 58 S. Ct. 510, 82 L. Ed. 734. The states in the exercise of the reserved police power may enact statutes in furtherance of the public health, the public morals, the public safety, and the public convenience, which may burden and bear upon interstate commerce,—provided such statutes are local in character and bear upon interstate commerce incidentally only. Boston & M. R. Co. v. Armburg, 285 U.S. 234, 52 S. Ct. 336, 76 L. Ed. 729; Hannibal, etc. R. R. Co. v. Husen, 95 U.S. 465, 24 L. Ed. 527.

"To render applicable the rule upholding state police regulations incidentally affecting interstate commerce, the legislation in question must be a real and bona fide exercise of the police power; such power may not be used as a mere cover for what amounts essentially to a regulation of interstate commerce or the imposition of a direct burden thereon." 15 C.J.S., Commerce, § 11, p. 268.

While it may be conceded that regulations designed to prevent frauds are embraced within the scope of the police power, 11 Am.Jur., p. 1027; Merrick v. N. W. Halsey & Co., 242 U.S. 568, 37 S. Ct. 227, 61 L. Ed. 498, nevertheless an express purpose to prevent possible frauds does not justify state legislation which really goes beyond the legitimate pale of regulation and interferes with the free flow of interstate commerce. Real Silk Hosiery Co. v. City of Portland, supra, 268 U.S. 325, 45 S. Ct. 525, 69 L. Ed. 982.

It must appear that there is "some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised." 16 C.J.S., Constitutional Law, § 195, pp. 563 and 564.

Since the range of a state's police power "comes very near to the field committed by the Constitution to Congress, it is the duty of the courts to guard vigorously against any needless intrusion." Hannibal, etc. R. R. Co. v. Husen, supra, 95 U.S. 465, 24 L. Ed. 527, bot. p. 531.

It is also fundamental that a burden imposed upon interstate commerce may not be sustained simply because the statute imposing it applies alike to the people of all states, including the people of the state enacting such statute. Nippert v. City of Richmond, supra; Brennan v. City of Titusville, supra, 153 U.S. 289, 14 S. Ct. 829, 38 L. Ed. 719; State of Minnesota v. Barber, 136 U.S. 313, 10 S. Ct. 862, 34 L. Ed. 455; Robbins v. Taxing Dist., supra, 120 U.S. 489, 7 S. Ct. 592, 30 L. Ed. 694; 15 C.J.S., Commerce, § 60, p. 378. See also Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S. Ct. 295, 95 L. Ed. 329.

The challenged statute is an innovation in the field of commercial regulation in this state. It singles out for regulation one branch of photography,—the branch which gathers its business through the medium of canvassers and salesmen. The statute requires the posting of an indemnity bond as a condition precedent to engaging in this branch of photography. Anyone who would operate this type of business, before canvassing for an order, must "file with the clerk of the Superior Court in each and every county in which said business is to be conducted a good and sufficient bond in the * * * sum of two thousand dollars ($2,000.00)," conditioned that the "principal shall * * * discharge all contracts, representations and other obligations" made either by the principal or by "any solicitor of such principal."

This bonding requirement, it would seem, reaches beyond the justifiable purpose of the statute, which is, as expressed in the Act: "`to Prevent the Perpetration of Certain Fraudulent Practices by Photographers within the State of North Carolina.'" Here it is significant that the burdens imposed by the bonding requirement are not limited to protecting or indemnifying purchasers of articles of photography against fraudulent practices. The bond is made liable for all "representations and other obligations" of any solicitor. Hence, this requirement engrafts upon the bond unlimited liability for any and all representations and obligations of any solicitor, without regard for the presence or absence of elements of fraud.

Also, in burdening the bond with unlimited liability for any "representation, or other obligation" of any solicitor, the statute in effect suspends settled rules of law governing the relation of principal and agent, under which ordinarily the principal may not be held liable for acts and conduct of the agent beyond the scope of the agent's authority, actual or apparent. In one stroke, the challenged statute strikes down these fixed rules of substantive law and substitutes in lieu thereof an arbitrary rule of unlimited liability,—all under the pretext of preventing fraud in respect to an occupation heretofore treated as one of the lawful callings of life. State v. Ballance, 229 N.C. 764, at p. 770, 51 S.E.2d 731, 7 A.L.R. 2d 407.

The bonding requirement, in attempting to extend liability to the outermost limits of simple contractual liability, without reference to fraudulent practices, and in attempting to suspend the doctrine of respondeat superior, goes beyond the limits of legitimate regulation. These conditions engrafted by the statute upon the bonding requirement, when interpreted in the light of common knowledge, would seem so to fetter the bond with contingent liabilities as to make compliance onerously difficult, if not prohibitory. Here the statute moves close to, if not beyond, the permissive bounds of the due process and equal protection clauses of the Constitutions.

The challenged statute is also discriminatory and unduly burdensome because of the fixed-sum nature of the bonding requirement. Obviously there should be a direct relation between the volume of business transacted by a studio engaged in this type of business and the frequency in which the sanctions imposed by the statute may reasonably be expected to be called into play. However, the statute makes no provision by which the amount of the bond may be varied to fit the size or volume of business. It bears alike upon the large and the small operator. The studio whose salesmen collect deposits of $1 is required to post the same bond as the studio whose salesmen may collect larger or smaller sums. Whether the number of canvassers sent out from a studio into a given county may be one or a dozen, the same bond of $2,000 is required. Whether the county be one of large or small population, bond in the same amount is required. For canvassing a county for only a few days, the same bond is required as for a year.

The fixed-sum bonding requirement, in failing to provide flexibility in reasonable relation to the volume of sales, is inherently discriminatory and unduly burdensome on interstate commerce, and violative of the principle applied in Nippert v. City of Richmond, supra. There, the fixed-sum license tax sought to be collected from the appellant Nippert, who was canvassing orders for garments to be shipped by an out-of-state manufacturer, was held inoperative as to her as being an undue burden on interstate commerce. In that case the essence of the burden which was declared unduly oppressive sprung from the discrimination that was inherent in the fixed-sum license tax which bore no flexible relation to the volume of business. There it was said: "So far as appears a single act of unlicensed solicitation would bring the sanction into play. The tax thus inherently bore no relation to the volume of business done or of returns from it." 327 U.S. 416, 66 S.Ct. at page 591, 90 L.Ed. top p. 767.

The principle applied in the Nippert case is applicable here. It makes no material difference that in the Nippert case the fixed-sum burden imposed on the incident of solicitation took the form of a license tax. Whereas, in the instant case the fixed-sum burden stems from a bonding requirement imposed under colorable exercise of the police power. It is the ultimate effect of the fixed-sum burden that controls. Where sanctions imposed by a regulatory measure bear no substantial relation to the legitimate objects sought to be obtained, and impose direct burdens and stifling restrictions upon interstate commerce, it matters not that such burdens be imposed under guise of the police power, rather than the taxing power.

We are constrained to the view that the bonding requirement here imposed bears no substantial relation to the legitimate purpose of the statute, i. e., the prevention of fraud. It is obvious that this requirement places more than an incidental burden on interstate commerce. It places a direct, unwarranted burden thereon. All the more is this so in the light of the multiple nature of the requirement which makes it necessary for a separate bond to be filed in each and every county in which business is to be conducted.

The decision in Town of Green River v. Bunger, 50 Wyo. 52, 58 P.2d 456, appeal dismissed in 300 U.S. 638, 57 S. Ct. 510, 81 L. Ed. 854, relied upon by the appellee, is distinguishable, as pointed out in the recent decision in Breard v. Alexandria, 341 U.S. 622, 71 S. Ct. 920, 95 L. Ed. 1233. The Breard case is also distinguishable from the instant case: there the police power was invoked by the City of Alexandria to give protection against a type of house-to-house canvassing which was treated in the challenged city ordinance as a social evil amounting to a public nuisance to be summarily suppressed as being subversive of the rights of citizens in the enjoyment of the privacy and quiet of their homes.

See also Warren Kay Vantine Studio v. City of Portsmouth, supra, 95 N.H. 171, 59 A.2d 475; Graves v. City of Gainesville, supra, 78 Ga.App. 186, 51 S.E.2d 58; Olan Mills, Inc. v. City of Tallahassee, supra, Fla., 43 So. 2d 521; Nicholson v. City of Forrest City, supra, 216 Ark. 808, 228 S.W.2d 53.

For the reasons given, Chapter 25, Session Laws of 1943, now codified as Article 12, Chapter 66 of the General Statutes of North Carolina, G.S. §§ 66-59 through 66-64, is repugnant to the Commerce Clause,— Article I, Section 8, Clause 3, of the Constitution of the United States. Therefore, the statute is declared invalid and inoperative as applied to the appellant herein.

With decision here resting on the Commerce Clause, it is not necessary for us to discuss, and we refrain from further expressing an opinion as to, the appellant's remaining exceptions which challenge the statute as being violative of the Constitution of North Carolina, Article I, Sections 1, 17, and 31. It is enough to say that these protective safeguards,—counterparts of the Federal due process and equal protection clauses,—still stand as sentinels in the marketplace, ever vigilant and ready to lift stifling burdens from the portals of those who, in fair competition, make the better mouse traps.

The judgement below is reversed.