Brown v. City of Seattle

• Decision Date: 10 December 1928
• Docket Number: 21091.
• Citation: 150 Wash. 203,272 P. 517
• Parties: BROWN v. CITY OF SEATTLE et al.
• Court: Washington Supreme Court

272 P. 517

150 Wash. 203

BROWN v. CITY OF SEATTLE et al.

No. 21091.

Supreme Court of Washington

December 10, 1928

Department 2.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Action by E. L. Brown against the City of Seattle and others. Judgment for plaintiff, and defendants appeal. Affirmed as modified.

Holcomb J., dissenting in part.

Thomas J. L. Kennedy and Hugh R. Fullerton, both of Seattle, for appellants.

Wright Froude, Allen & Hilen, of Seattle, for respondent.

BEALS, J.

On April 13, 1925, the council of the city of Seattle passed an ordinance numbered 48711 and entitled: 'An ordinance relating to, and providing for, the inspection of animal carcasses and meats intended for human consumption regulating the sale of such meats and of poultry and game providing for the detailing and bonding of inspectors defining offenses, prescribing penalties, and repealing all ordinances in conflict herewith'--which ordinance was, on April 22, 1925, approved by the mayor and became effective 30 days thereafter. Sections 17 and 21 of this ordinance read as follows:

'Sec. 17. It shall be unlawful for any person to sell meat intended for human consumption within the City without first obtaining a permit so to do from the Commissioner of Health. Any person desiring such a permit shall first make written application therefor to the Commissioner of Health, setting forth therein the name of such person and the location, by street and number, of the shop or plant were such person desires to sell such meat. The Commissioner of Health shall thereupon cause such shop or plant, with all the fixtures and appliances connected therewith, or to be used therein, to be carefully inspected, and if said shop or plant fully complies with the rules and regulations as prescribed by ordinances of the City of Seattle relating to health and sanitation, the said Commissioner of Health shall, if he be satisfied that the applicant be responsible and trustworthy, issue to said applicant, free of charge, a numbered permit in accordance therewith.'

'Sec. 21. It shall be unlawful for any person within the City to sell any meat, poultry or game, intended for human consumption therein, from any shop, or for any shop to keep open for business, or to permit any shop to keep open for business, or to receive at any shop, any such meat, poultry or game, or for any restaurant to receive any such meat, poultry or game on any day except between the hours of 7 o'clock a. m. and 6 o'clock p. m.'

Plaintiff instituted this action, alleging in his amended complaint, dated May 11, 1926, that he was then, and for several years prior thereto had been, conducting a retail meat business in the city of Seattle; that section 17 of Ordinance No. 48711, supra, is illegal and void, in that it attempts to vest in the commissioner of health the authority to arbitrarily determine the persons entitled to receive the permit provided for in this section; that a considerable portion of the trade of his meat market consisted of sales made after 6 o'clock in the afternoon, and that the defendants were threatening to enforce against him the provisions of the ordinance above referred to, and close his shop if he kept the same open after that time. Plaintiff further alleged that section 21 of the ordinance is unreasonable, arbitrary, and void, and that no plain, speedy, or adequate remedy at law was available to him. He therefore prayed that the defendants be enjoined from using the provisions of section 21 of the ordinance as the basis for proceedings against him.

Defendants addressed certain motions to this amended complaint and filed a demurrer thereto, and, after these were denied and overruled, respectively, answered. The trial resulted in findings of fact and conclusions of law in plaintiff's favor; the trial court being of the opinion that sections 17 and 21 of Ordinance No. 48711 are unconstitutional and void. Judgment was entered in favor of plaintiff, enjoining and restraining defendants from closing or attempting to close plaintiff's business, and 'from in any way preventing plaintiff from continuing to operate his retail meat market in the city of Seattle after six o'clock p. m. and before seven o'clock a. m. of any day.' Defendants, having duly excepted to the rulings of the trial court in favor of plaintiff and to the entry of the judgment, appealed to this court.

The ordinance in question is clearly regulatory, and not a revenue ordinance. This at the outset differentiates the case at bar from those cases in which certain ordinances, which were manifestly passed as revenue measures, have been held valid.

It is also true that the business of selling meat does not fall within the classification which includes pool halls, dance halls, card rooms and similar places of amusement which have been held to be businesses which require strict regulation and supervision because of the possible harm to the public at large, which may result from the operation of such places unless they are strictly regulated and supervised.

It may also be stated that this court has repeatedly decided, and it is unquestionably the law of this state, that in proper cases and within reasonable limits the police power of a city extends to the regulation of businesses conducted upon private property.

Respondent contends that the portion of section 17, supra, to the effect that the commissioner of health of defendant city shall, if he be satisfied that the applicant for a permit to sell meat 'be responsible and trustworthy,' issue a permit, is unconstitutional and void, for the reason that it purports to delegate to the commissioner of health the right to determine the responsibility and trustworthiness of each applicant without fixing any standard by which these qualities may be determined, and that therefore the matter is left to the arbitrary judgment of the commissioner.

In support of the validity of section 17, appellants cite the opinion of this court in the case of Town of Sumner v. Ward, 126 Wash. 75, 217 P. 502, in which an ordinance providing for and regulating the issuance of peddling licenses was upheld. The ordinance in question in that case provided that 'the Town Clerk shall, unless he has good reason to believe such applicant to be dishonest or immoral and that he desires such license to enable him to practice some dishonest or immoral act, issue to said applicant a license.' The court held that the ordinance could be sustained on the ground that it was a revenue measure, but goes on to discuss the provision above referred to, and holds the same valid, as it does not purport to grant to the town clerk arbitrary power to grant or refuse the license in his discretion, but, on the contrary, binds him to grant the license to every applicant unless he finds him disqualified for the reasons stated in the ordinance. It was further held that the discretion vested in the town clerk was of a judicial nature and subject to review in the courts for any arbitrary exercise thereof.

While it is true that the ordinance considered in the last-mentioned case provided that the town clerk shall issue the desired license 'unless,' while section 17 of the ordinance now before us provides that the commissioner shall issue the license 'if,' we do not think that the ordinances are essentially different in their structure or intent. In each instance the officer of the municipality is calied upon to exercise a discretion of a judicial nature, and his failure to act or his affirmative acts may be reviewed in the courts in case he refuses to exercise his discretion or exercises the same arbitrarily.

We are of the opinion that section 17 of the ordinance which is the subject-matter of this action is valid.

The opinion of the Supreme Court of the United States in the case of Hall v. GeigerJones Co., 242 U. S. 539, 37 S.Ct. 217, 61 L.Ed. 480, L. R. A. 1917F, 514, Ann. Cas. 1917C, 643, supports this conclusion, as does that of the Supreme Court of California in the case of Riley v. Chambers, 181 Cal. 589, 185 P. 855, 8 A. L. R. 418.

The case of Seattle v. Gibson, 96 Wash. 425, 165 P. 109, cited by respondent, is not controlling upon this point, as the section of the municipal ordinance which the court in that case held unconstitutional purported to vest in the license committee of the city council a purely arbitrary discretion, and provided no standard of qualifications by which the merits of an applicant could be measured, nor any rule of procedure for making an investigation concerning the qualifications of an applicant for a license. The ordinance under examination in that case did not direct the license committee to make any investigation concerning the application for a license, but provided only that it might 'in its discretion' do so. As stated by the court, 'the ordinance leaves to the license committee the authority arbitrarily to grant or reject a petition for a license to operate or conduct a drug store and pharmacy.' For the reasons stated, the Gibson Case is not controlling on the question of the validity of section 17, supra.

A more serious and difficult question is presented by the portion of section 21, supra, which provides for the closing of shops for the sale of meat at 6 o'clock on the afternoon of each day, which section the superior court also held unconstitutional and void. At the outset it may be assumed that the appellant city of Seattle may exercise within its limits a police power as ample in its scope as that possessed by the state Legislature itself, provided, as stated by appellants in their brief, the exercise thereof be 'reasonable and consistent with general laws.' State Constitution, § 11, art. 11; Shepard v. Seattle, 59 Wash. 363, 109 P....