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has been held invalid as having no direct relation to public health for a legitimate public purpose.
<br />Good Humor Corporation v. New York, 49 N.E.2d 153 (1943). Furthermore, an ordinance
<br />cannot unreasonably and arbitrarily discriminate against nonresident and itinerant hawkers,
<br />peddlers, and sellers of goods and merchandise. Welton v. Missouri, 91 U.S. 275 (1875). For
<br />example, a city ordinance requiring transient merchants to post a bond as a condition precedent
<br />to carrying on business within the city, unless such merchants are residents of the county
<br />concerned, is unconstitutional as imposing an unreasonable burden on interstate commerce.
<br />State v Schmidt, 159 N.W.2d 113 (Minn. 1968). Similarly, a law, although directed against
<br />peddlers or itinerant vendors, which discriminates against goods which have once been a part of
<br />an interstate commercial transaction, Machine Co. v Gage, 100 U.S. 676; Welton v Missouri, 91
<br />U.S. 275 (1875), or which discriminates against goods manufactured or produced in other states,
<br />Welton 91 U.S. 275, is an invalid burden on interstate commerce. But an ordinance may make
<br />reasonable distinctions based upon a relationship to public health, safety, and welfare with
<br />respect to nonresident and itinerant peddlers. McQuillin, Municipal Corporations, § 24.373. A
<br />state or municipality may thus pass laws regulating hawkers, peddlers, and solicitors, as police
<br />measures, provided such laws do not interfere with interstate commerce. Breard v Alexandria,
<br />341 US 622.
<br />
<br />Elk River's current Transient Merchant Ordinance, when applied to the rules respecting
<br />interstate commerce discussed above, is sufficiently broad to survive a constitutional challenge
<br />because it applies both to transient merchants involved in interstate commerce, and to those who
<br />do business completely within the state. The ordinance is also sufficiently limited in the burden
<br />it places on transient merchants ($50 annual fee). Finally, justification for the ordinance is
<br />grounded in the City's police power in that the ordinance is aimed at regulating, rather than
<br />taxing, transient merchants. The specific intent of the ordinance, to identify and investigate on a
<br />limited basis those merchants who have no permanent business location within Elk River, is well
<br />within the City's authority to act based upon a relationship to the public health, safety, and
<br />welfare.
<br />
<br />II. AUTHORITY UNDER STATE LAW TO REGULATE TRANSIENT MERCHANTS
<br />
<br />Statutory cities such as Elk River may license and regulate transient merchants and dealers,
<br />hawkers, peddlers, solicitors and canvassers under state law. See Minn. Stat. § 329.01 et seq.
<br />Cities must use special caution when regulating charitable and religious solicitors because of
<br />concerns involving the First Amendment rights of free speech and freedom of religion. Int'l
<br />Soc'y for Krishna Consciousness v. City of Houston, 689 F.2d 541 (5th Cir. 1982).
<br />
<br />License fees must be reasonable and must not reflect preferential treatment of resident vendors
<br />over nonresidents. State v Schmidt, 159 NW2d 113 (Minn. 1968). A city may prohibit certain
<br />classes of "transient merchant events." Minn. Stat. § 329.15. Ordinances may not, however,
<br />prohibit the sale of some items and permit the sale of others unless the prohibition can be shown
<br />to have a relationship to the city's police power to regulate for the health, safety or general
<br />welfare. Gifford v. Wiggins, 52 N.W 904 (Minn. 1892).
<br />
<br />The Elk River Transient Merchant Ordinance, in addition to regulating and licensing transient
<br />merchants, peddlers, hawkers, canvassers and solicitors, permits any resident of the City to
<br />prohibit peddlers, canvassers and solicitors from premises occupied by the resident, by placing a
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