City of Seattle v. Ford

• Decision Date: 14 June 1927
• Docket Number: 20128.
• Parties: CITY OF SEATTLE v. FORD.
• Court: Washington Supreme Court

257 P. 243

144 Wash. 107

CITY OF SEATTLE v. FORD.

No. 20128.

Supreme Court of Washington, En Banc.

June 14, 1927

Appeal from Superior Court, King County; Hall, Judge.

Joseph Ford was accused of violating an ordinance of the City of Seattle. From a judgment discharging the defendant, the City appeals. Affirmed.

Fullerton and Main, JJ., dissenting.

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

Palmer Askren & Brethorst, of Seattle, for respondent.

TOLMAN J.

This case originated in a justice court for King county where a criminal complaint was filed charging the defendant (respondent here) with the violation of an ordinance of the city of Seattle. The defendant was there convicted and appealed to the superior court for King county, where the case was tried on an agreed statement of facts. The superior court held the ordinance invalid as to the particular offense here charged, and by its judgment discharged the defendant. From that judgment the city has appealed.

The agreed statement of facts sets out the parts of the ordinance involved and the acts charged as constituting its violation as follows:

'It is agreed that the city of Seattle, plaintiff, is a municipal corporation of the first class of the state of Washington, and that there has been regularly enacted a certain ordinance of said city, being Ordinance No. 48022, of which sections 152, 153, and 245 are as follows:

'Sec. 152. ' Hawkers' Defined.--(a) Any person selling or offering for sale any article or thing except newspapers, within the city of Seattle, who shall make a public outcry or give any musical or other entertainment or ring any bell, or blow any whistle or horn, or shall make any public speech to draw customers or attract notice, whether on any street or other public place or in any vacant lot, inclosure, storeroom or other place, or;

'(b) Any person who shall on any street, avenue, alley or other public place, or in any vacant lot, inclosure, storeroom or other place within the city of Seattle, make any public outcry or give any musical or other entertainment, or ring any bell or blow any whistle or horn, or shall make any public speech to draw custom or attract notice, or who shall make any demonstration calculated to draw attention to any goods, wares, merchandise, amusement, event or service, at any other place, shall be deemed a hawker, within the meaning of this ordinance.

'Sec. 153. Hawker's License Fee.--It shall be unlawful for any person to act as a hawker unless he shall have a license so to do, to be known as a 'hawker's license.' The fee for such hawker's license shall be, and the same is hereby, fixed in the sum of ten dollars ($10.00) per day: Provided, however, that no license shall be issued for the hawking of those articles where a peddler's license is required, unless such hawker shall have also a peddler's license.

'Auctioneers and persons selling property under and by virtue of an order from the court shall not be required to take out a hawker's license.

'Sec. 245. Penalty.--Any person violating or failing to comply with any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine in any sum not exceeding three hundred dollars ($300.00), or by imprisonment in the city jail for a period not exceeding ninety (90) days, or by both such fine and imprisonment.

'That on the 14th day of February, 1925, the defendant, Joseph Ford, was in the employ of the Murray Meat Company in its market located on private property near Pike place in the city of Seattle. That said market is wholly located upon private property. That it has certain counters fronting on an aisle located inside the market. That the defendant, Joseph Ford, on said date, standing back of the counter and within the boundaries of the private property, attempted to sell to passersby in the market certain T-bone steaks by holding them up to the public view and by calling to said passersby in a loud voice: 'Here they are folks; take them away, at 25 cents for one or two for 45.' That Joseph Ford did not have at said time any license to act as hawker, as provided by the provisions of Ordinance No. 48022. That trial was had before the honorable John B. Gordon, justice of the peace, on the 9th day of July, 1925, and the defendant convicted, and that thereafter this appeal was regularly taken to the superior court above entitled.'

It may be admitted at the start that the city of Seattle, by our state Constitution (section 11, art. 11), by our statutes, and by its charter, is as fully authorized to exercise the police power as any municipality can be, and the power delegated is as amply within its limits as that possessed by the Legislature itself. Detamore v. Hindley, 83 Wash. 322, 145 P. 462.

The respondent advances three reasons why the ordinance should be held invalid, which are, in substance: (1) The license fee is prohibitive in amount and in effect the occupation of hawking is thereby prohibited; (2) it is an unwarranted exercise of the police power, in that it prohibits the carrying on of a lawful occupation on private premises; and (3) it unlawfully discriminates in favor of the vendors of newspapers. We find it necessary to consider only the first and second of these questions.

Perhaps there is no subject upon which a greater number of apparently conflicting authorities can be found; but we think the conflict is more apparent than real and arises largely from the failure to confine the language used in a particular case to the points decided in that case. The courts will go far in sustaining the exercise of the police power for the preservation of the public health and safety, and, in so doing, private rights in conflict therewith are overridden; but, on the other hand, the courts are equally concerned to see that, under the guise of protecting the public, private business, especially that carried on upon private property, is not arbitrarily restricted or interfered with. Mr. Tiedeman, in his work on State and Federal Control of Persons and Property, vol. 1, p. 4, clearly states the thought we are trying to express, as follows:

'It is to be observed, therefore, that the police power of the government, as understood in the constitutional law of the United States, is simply the power of the government to establish provisions for the enforcement of the common as well as civil law maxim, 'Sic utere tuo ut alienum non laedas.' This police power of the state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. According to the maxim, 'Sic utere tuo ut alienum non laedas, it being of universal application, it must, of course, be within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others.' Any law which goes beyond that principle, which undertakes to abolish rights, the exercise of which does not involve an infringement of the rights of others, or to limit the exercise of rights beyond what is necessary to provide for the public welfare and the general security, cannot be included in the police power of the government. It is a governmental usurpation, and violates the principles of abstract justice, as they have been developed under our republican institutions.

' In Lawton v. Steele (152 U.S. 133, 14 S.Ct 499, 38 L.Ed. 385) the court say: 'The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every state in the Union. It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the state may order the destruction of a house falling to decay or

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