No. 81-330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

TIPCO CORPORATION, INC. 

Plaintiff and Appellant, 

VS. 

THE CITY OF BILLINGS, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

In and for the County of Yellowstone 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stephens & Cole, Billings, Montana 

Larry Cole argued, Billings, Montana 

For Respondent: 

Peterson Law Offices, Billings, Montana 

V. Joe Leckie argued, Billings, Montana 

Submitted: March 1, 1982 

Decided: MAR 2 9 1982 

Filed: MAR 2 9 1982 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The City of Billings enacted an ordinance declaring uninvited door-to-door solicitations a nuisance punishable as a misdemeanor and exempting local merchants with regularly established 

places of business from its operation. The District Court held 

the ordinance valid. We reverse. 

Plaintiff Tipco Corporation is a foreign corporation with 

no business office in Montana. Twelve sales agents of Tipco, 

licensed and bonded under Montana statutes, were selling magazine 

subscriptions door-to-door in Billings during March 1981. These 

sales agents depended on door-to-door solicitations for their 

livelihood and income. The sales agents would forward subscriptions obtained from Billings customers to ~ipco's main off ice in 

Indiana which would place the subscriptions with various magazine 

publishers. The sales agents were arrested and charged with misdemeanors under the Billings ordinance. 

On March 20, 1981, Tipco filed a complaint in the 

Yellowstone County District Court to enjoin the City of Billings 

from enforcing its ordinance contending it con£ licted with 

overriding state statutes and was unconstitutional under Federal 

and State Constitutional provisions. The City responded with a 

motion to dismiss alleging no conflict with state statute or 

constitutional provisions. The ~istr ict Court, after notice to 

the parties that it would treat the case as submitted on crossmotions for summary judgment, granted summary judgment to the City 

upholding the validity of the ordinance . Tipco appeals. 

Three issues are presented on appeal: 

(1) Is the Billings ordinance invalid as con£ licting with 

state statutes governing the licensing of itinerant vendors? 

(2) Is the Billings ordinance invalid as conflicting with 

state statutes governing nuisances? 

( 3) Does the Billings ordinance unfairly discriminate 

against Tipco contrary to the commerce clause of the United States 
Constitution and the due process and equal protection clauses of 

the United States and Montana Constitutions? 

The relevant state statutes governing itinerant vendors 

are found in Title 7, Chapter 21, MCA, and provide as follows: 

"Part 23 

"Licensing of - Itinerant Vendors 

"Definitions . . . 

"(2) Within the meaning of this part, an 

'itinerant vendor' is any person engaged or 

employed in the business of retailing to consumers by going from consumer to consumer, 

either on the streets or to their places of 

residence or employment and there soliciting, 

selling, or offering to sell or exhibiting for 

sale (by sample, by catalogue, or otherwise) or 

taking orders for future delivery of any goods, 

wares, or merchandise or for services to be performed in the future ." 7-21-2301 (2), MCA. 

"Scope -- of part . . . "(2) Nothing contained in this part is intended 

to operate so as to impair, abridge, or interfere with the right of any incorporated municipality within this state to enact local laws or 

ordinances dealing with the subject of this 

part, provided that such municipality shall not 

impose any license fees in excess of twice the 

amount provided herein for county license fees ." 

7-21-2302(2) , MCA. 

An annual $15 county license fee for itinerant vendors is 

provided in the Act. Section 7-21-2303, MCA. 

The Billings Ordinance provides in pertinent part: 

"ORDINANCE No. 5.20.050. SOLICITING PROHIBITED 

"The practice of going into private residences, 

business establishments, or offices in the City 

by solicitors, peddlers, hawkers, itinerant 

merchants and transient vendors of merchandise, 

not having been requested or invited to do so by 

the owner or owners, occupant or occupants of 

private residences, business establishments or 

offices for the purpose of soliciting order (sic) for 

the sale of goods, wares and merchandise, and/or 

for the purpose of disposing of and/or peddling 

or hawking same is hereby declared to be a 

nuisance and punishable as a misdemeanor." 

"ORDINANCE NO. 5.20.060. EXCEPTIONS. 

"The provisions of this chapter shall not apply 

to regularly established places of business or 

to bonafide merchants having regularly 

established places of business within said city, 

or to any regularly licensed auctioneer or to 
any person distributing by sale, or otherwise, 

produced by him on owned or leased premises; 

provided such premises are located within 150 

miles of the City." 

The focus of the first issue is whether the City of 

Billings is empowered to prohibit uninvited door-to-door solicitations by itinerant vendors under the state licensing statute or 

otherwise. Tipco argues that a statutory grant of power to a 

municipality to enact ordinances "dealing with" itinerant vendors 

does not empower a city to prohibit their activities, citing 

DeLong v. Downes (1977), 175 Mont. 152, 573 P.2d 160 (a statute 

authorizing regulation of gambling licenses is not a grant of 

power to prohibit authorized forms of gambling); Winther v. 

Village of Wieppe (1967), 91 Idaho 798, 430 P.2d 689 (the power 

to regulate a business is not a grant of power to prohibit it) ; 

and Combined Communications Corporation v. City and County of 

Denver (1975), 189 Colo. 462, 542 P.2d 79 (the power to regulate 

does not include the power to prohibit) ; and arguing that if the 

legislature intended to grant cities the power to prohibit the 

activities of itinerant vendors, it could have plainly said so. 

State statutes define itinerant vendors to include persons 

engaged in door-to-door solicitations [section 7-21-2301 ( 2) , 

MCA], provide for licensing them [section 7-21-2303, MCA], and 

state that such statutes shall not impair the right of any incorporated city to enact ordinances dealing with the licensing of 

itinerant vendors [section 7-21-2302(2), MCA] . Other state statutes provide that "a local governmental unit with selfgovernment powers may exercise any power not prohibited by the 

constitution, law, or charter" and "these powers include but are 

not limited to the powers granted to general power governments" 

section 7-1-101, MCA; and that "the powers and authority of a 

local government unit with self -government powers shall be 

liberally construed" and "every reasonable doubt as to the 

existence of a local government power or authority shall be 

resolved in favor of the existence of that power or authority." 
Section 7-1-106, MCA. These statutes were enacted pursuant to 

the expansion of the powers of local self-government provided by 

Montana's 1972 Constitution, Article XI, Sections 4, 5 and 6. 

Thus we find no conflict between state statutes licensing 

itinerant vendors and the Billings ordinance prohibiting one of 

their activities--uninvited door-to-door solicitations. A 

licensing statute does not legalize an activity otherwise prohibited. State ex rel. Replogle v. Joyland Club (1950), 124 Mont. 

122, 220 P.2d 988. Since the City of Billings possesses selfgovernment powers it may exercise any power not prohibited by the 

Constitution, Law or Charter and possesses powers granted to 

general power government, it is empowered to prohibit uninvited 

door-to-door solicitations by itinerant vendors. 

The situation here must be distinguished from situations 

involving state preemption of a field of regulation as in DeLong 

v. Downes, supra; State ex rel. City of Libby v. Haswell (1966), 

147 Mont. 492, 414 P.2d 652; City of Billings v. Herold (1956), 

130 Mont. 138, 296 P.2d 263; and State ex rel. Wiley v. ~ist. Ct. 

(1945) , 118 Mont. 50, 164 P.2d 358. There, unlike here, the 

state had preempted regulation of gambling, liquor control and 

other fields to the exclusion of municipalities which were prohibited from legislating in those areas. In the instant case there 

has been no state preemption or prohibition. 

We expressly overrule statements in DeLong that a county, 

city or town can only exercise powers expressly conferred on it 

by the Constitution and statutes or arising by necessary implication and that any reasonable doubt concerning such powers should 

be resolved against the municipality. This was the law under 

Montana's 1889 Constitution and cases decided thereunder. It is 

not the law under Montana's 1972 Constitution and statutes 

enacted thereunder. 

Tipco next contends that the Billings ordinance is invalid 

because it conf licts with state statutes governing nuisances. 
Tipco points out that section 27-30-101(2), MCA, states that 

nothing done or maintained under the express authority of a statute can be declared a nuisance. Therefore, Tipco argues, the 

statute licensing itinerant vendors impliedly indicates that 

their activities in door-to-door solicitations are not a 

nuisance. 

The fallacy in Tipco's argument is that a licensing statute does not legalize a prohibited activity. State ex rel. 

Replogle v. Joyland Club, supra. There is no preemption by the 

state of regulation of nuisances. The City of Billings has 

declared uninvited door-to-door solici'tations by itinerant vendors 

a nuisance. The same analysis, the same reasons and the same 

result applies to this issue as to the first issue. We hold the 

Billings ordinance valid against this attack by Tipco. 

However, we hold that the Billings ordinance denies Tipco 

equal protection of the law in violation of Federal and State 

Constitutional requirements. Fourteenth Amendment, Section 1, U. 

S. Constitution; Article 11, Section 4, 1972 Montana 

Constitution. The Billings ordinance exempts local merchants 

having regularly established places of business in the City from 

the prohibition against uninvited door-to-door salesman. It prohibits Tipco from engaging in the prohibited activity and permits 

local merchants to engage in the prohibited activity. This 

constitutes patent discrimination prohibited under constitutional 

equal protection requirements. 

The Billings ordinance is not subject to the "strict 

scrutiny" test of equal protection because it does not burden a 

fundamental right (State v. Turk (No. 81-341, decided March 25, 

1982; Searle & Co. v. Cohn (1982), U.S. -1 - S.Ct. I 

L.Ed.2d (No. 80-644 decided February 24, 1982); Stanley v. 

Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551; 

Dunn v. Blumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 

274) nor constitute invidious discrimination against a suspect 

-6- 
class (Graham v. Richardson (1971), 403 U.S. 365, 91 S.Ct. 1848, 

29 L.Ed.2d 534; Loving v. Virginia (1967)r 388 U.S. 1, 87 S.Ct. 

1817, 18 L.Ed.2d 1010). 

The "rational relationship" test determines whether 

the Billings ordinance satisfies equal protection requirements, 

i.e. is the prohibition against uninvited door-to-door solicitation by Tipco and the permission for local merchants to engage in 

the same activity rationally related to the achievement of a 

legitimate governmental objective? 

We hold it is not. The only rational relationship that 

has been suggested is that the City can exercise control over 

local merchants and their uninvited door-to-door solicitations 

but cannot exercise such control over out-of-state firms and 

their solicitors. This argument is difficult to follow as the 

ordinance permits local merchants to engage in the prohibited 

activity. Under such circumstances where is the control? This 

argument additionally loses its vitality because state licensing 

statutes, equally applicable to local merchants and out-of-state 

firms, require posting a bond of $250 as a condition of licensing 

to protect customers. Section 7-21-2306, MCA. 

A classification that is patently arbitrary and bears no 

rational relationship to a legitimate governmental interest 

of fends equal protection of the laws. Frontierov. Richardson 

(1973), 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583; Sigety v. 

State Board of Health (1971), 157 Mont. 48, 482 P.2d 574. As we 

have previously held, equal protection of the laws requires that 

all persons be treated alike under like circumstances. Billings 

Associated Plumbing, Heating & Cooling Contractors v. State Board 

of Plumbers (1979), Mont. , 602 P.2d 597, 36 St.Rep. 1996. 

Here uninvited door-to-door solicitors of local merchants are no 

less a nuisance than those of nonlocal firms. Thus, the classification is arbitrary and offends the equal protection clause of 
both Federal and Montana Constitutions. 

The remaining federal constitutional attacks are 

foreclosed by the United States Supreme Court decision in Breard 

v. City of Alexandria (1951), 341 U.S. 622, 71 S.Ct. 920, 

L.Ed . In that case a Green River type ordinance like that of 

Billings (minus the exemption for local merchants) was held not 

to violate the Federal Commerce clause, the First Amendment right 

of free speech, and the due process clause of the Fourteenth 

Amendment. We find no reason to hold otherwise under Montana's 

constitutional freedom of speech guarantee (Art. 11, Sec. 7, 1972 

Montana Constitution) or Montana's due process clause (Art. 11, 

Sec. 17, 1972 Montana Constitution). Montana's Constitution, 

unlike the Federal Constitution, contains no commerce clause. 

In summary, we hold Billings Ordinance 5.20.050 and 

5.20.060 unconstitutional under the equal protection provisions 

of the United States and Montana Constitutions. Since we have no 

way of knowing whether the City of Billings would enact the ordinance without the unconstitutional exemption contained in 

5.20.060, we strike both 5.20.050 and 5.20.060 leaving that 

determination to the City. 

The judgment of the District Court is reversed in accordance with this opinion. 

Chief Justice