dissenting: The nostalgia this court feels when it remembers the haunting peal of the ice cream vendor’s bell should not influence a decision in this case. The ordinance which the majority strikes down appears to be a proper exercise of the police power. It was passed to prevent the use of city streets to conduct, hold and carry on sales of merchandise. The ordinance applies generally to all items of merchandise sold in the street.
The majority state, “the right to sell is not absolute and may be regulated or withheld, if necessary, for public safety and welfare”. Therefore, the basic difference which I hold with the majority concerns the reasonableness of the regulation. Whether an ordinance bears a real and substantial relation to the public safety and welfare should be left in the first instance to the judgment and discretion of the municipality. If there is a real and substantial relation to the public safety and welfare a court should not substitute its judgment for that of the municipality. To declare an ordinance unconstitutional a court should be able to clearly demonstrate wherein the action of the city was unreasonable and arbitrary or should point out the illegality of the ordinance. (Grigsby v. Mitchum, 191 Kan. 293, 302, 380 P. 2d 363.) This is not done in the present case.
The plaintiffs are using the streets to conduct, hold and carry on sales of merchandise. At least two other firms are conducting similar operations in the streets of Overland Park. The ordinance applies generally to all persons and firms alike. The ordinance does not prohibit the plaintiffs from using the streets to transport and *106deliver their products within the city. It does not purport to prohibit sales made in driveways, vacant lots or other privately owned locations.
The hazard which the ordinance recognizes and seeks to remove is the stopping and parking of sales vehicles in the street while plaintiffs complete sales to customers standing in the street or right-of-way. When the purchasers appear the vendor stops his vehicle in the street. Pedestrians approach and congregate in the street. Until all sales are completed and the merchandise is delivered other traffic is affected accordingly. The age of the customers contributes to the activity around the parked vehicle and increases the hazard.
The cases upon which the plaintiffs rely to support their position stand for the proposition that the public streets exist to facilitate transportation and that activities essential to that end must be permitted. That proposition does not aid the plaintiffs. The present ordinance prohibits the use of the streets for sales. It does not interfere with any essential incident of transportation and travel.
Control and regulation of the use of public streets are vested in the municipality. This principle is so basic the cases are colleced in 4 Hatcher’s Kansas Digest, Municipal Corporations §§ 144, 145.
Cities have been granted specific statutory authority to regulate the standing and parking of vehicles on city streets. (K. S. A. 8-508 (1).) In addition cities in Kansas have been empowered to determine their local affairs by the Home Rule Amendment. (Constitution of the State of Kansas, Art. 12 § 5.) It cannot be said the city acted illegally in passing this ordinance.
A majority of courts from other states have held a municipality has no power to authorize or license the use of its streets or sidewalks for the sale of articles. (See Peddling on Streets, 14 A. L. R. 3d Anno. p. 896 § 11 at p. 918.) This court has held a city may not lease the streets for the purpose of storing building materials and raising revenue from such a lease. (See Watson v. City of Topeka, 194 Kan. 585, 400 P. 2d 689.)
If a municipality has no power to authorize or license the use of its streets for the sale of articles it logically follows a city should have the power to prohibit the use of its streets for such unauthorized purpose.
In answer to the constitutional arguments advanced by the plaintiffs I recommend reading Good Humor Corp. v. Mundelein, *10733 Ill. 2d 252, 211 N. E. 2d 269, 14 A. L. R. 3d 887. In a well reasoned opinion Mr. Justice Schaefer of the Illinois Supreme Court examines and disposes of each of these constitutional arguments. The Illinois court upheld an almost identical ordinance prohibiting sales of merchandise in the street.
The majority of our court distinguishes the Good Humor Corp. case on the ground Illinois is a more heavily populated state. I hardly feel this is a sound distinction in view of the fact the present ordinance applies only to the city of Overland Park which is a heavily populated urban area.
I would affirm the lower court and uphold the ordinance.
Kaul, J., joins in the foregoing dissent.