City of Seattle v. Larkin

• Decision Date: 17 December 1973
• Docket Number: No. 1861--I,1861--I
• Citation: 10 Wn.App. 205,516 P.2d 1083
• Parties: CITY OF SEATTLE, Respondent, v. Kearn Francis LARKIN, Appellant.
• Court: Washington Court of Appeals

Page 205

10 Wn.App. 205

516 P.2d 1083

CITY OF SEATTLE, Respondent, v. Kearn Francis LARKIN, Appellant.

No. 1861--I.

Court of Appeals of Washington, Division 1.

Dec. 17, 1973.

Alfieri, Husseman, Pittle & Watkins, Ralph D. Pittle, Seattle, for appellant.

A. L. Newbould, Corp. Counsel, James G. Blair, Seattle, for respondent.

WALTERSKIRCHEN, Judge. ^*

Kearn Francis Larkin appeals from convictions of two violations of Seattle ordinance No. 21.14.300, 'Soliciting rides prohibited.'

It shall be unlawful for any person to stand on or in proximity of a roadway for the purpose of soliciting a ride for himself or for another, or for his baggage or for the baggage of another, from the occupant of any vehicle.

The provisions of this section shall not be construed to prevent any person upon any street from soliciting where an emergency actually exists, nor shall this section be construed to prevent any person from signaling or requesting transportation from a passenger carrier for the purpose of becoming a passenger thereon for hire.

Larkin asserts the trial court erred in not finding the ordinance unconstitutional and in not finding that the prosecution was prohibited by RCW 46.61.255.

Larkin argues that the ordinance infringes upon his constitutionally protected fundamental right to travel. Although judicial recognition of the right to travel as being a constitutionally protected fundamental right is of recent development, its existence can no longer be questioned. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

A review of the principal cases in which claimed infringement of the right to travel has been considered by the courts discloses that the majority deal with the duration of residence requirements. See Dunn v. Blumstein, Supra (voting); Shapiro v. Thompson, Supra (welfare); Keenan v. Board of Law Examiners of the State of North Carolina, 317 F.Supp. 1350 (E.D.N.C.1970); (bar examination); Kirk v. Board of Regents of Univ. of California, 273 Cal.App.2d 430, 78 Cal.Rptr. 260 (1969) (regular college tuition); Whitehead v. Whitehead, 53 Haw. 302, 492 P.2d 939 (1972) (divorce).

Alleged infringements of the right to travel were also considered in Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972) (tax on passengers using an airport). See also Barrick Realty, Inc. v. Gary, Indiana, 354 F.Supp. 126, 133 (N.D.Ind.1973) (the right to place real estate for sale signs in residential areas); Prigmore v. Renfro, 356 F.Supp. 427 (N.D.Ala.1972) (the right to vote by absentee ballot).

The initial question presented with respect to the constitutionality of the Seattle ordinance relates to the proper standard of review to be applied. A stricter test of 'compelling state interest' has been applied in all right-to-vote cases where the court found the voter was faced with a choice of either not voting or not traveling. It has also been applied in welfare cases as stated in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). Justice Marshall stated his dissent at page 522, 90 S.Ct. at page 1180:

And this Court has already recognized several times that when a benefit, even a 'gratuitous' benefit, is necessary to sustain life, stricter constitutional standards, both procedural and substantive, are applied to the deprivation of that benefit.

(Footnotes omitted.) The stricter standard has also been applied in cases where the court found a direct intrusion on the right to travel. Under this test, an infringement of a constitutional right will be sustained only where the regulation is necessary to promote a compelling governmental interest. See Shapiro v. Thompson, Supra; Krzewinski v. Kugler, 338 F.Supp. 492, 498 (D.N.J.1972). Larkin contends the ordinance is unconstitutional under this test.

A traditional less strict test of 'reasonable basis' has been applied in those cases in which the court found that the right to travel was not directly affected. Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines Inc., Supra; Barrick Realty, Inc. v. Gary, Indiana, Supra; Prigmore v. Renfro, Supra; Kirk v. Board of Regents of Univ. of California, Supra; Whitehead v. Whitehead, Supra.

In this case, the city ordinance treats all individuals alike. No one may hitchhike on or in proximity to a roadway. Yet not all hitchhiking is proscribed since anyone desiring to secure transportation in this manner may seek it in service stations, parking lots and any other places except 'on or in proximity to a roadway.' We, therefore, conclude that this case may be reviewed under the less strict test because the challenged ordinance is at most only an indirect and minor infringement, if any, upon the appellant's right to travel.

Under the rational basis test, the ordinance carries with it the presumption in favor of its constitutionality, Winkenwerder v. Yakima, 52 Wash.2d 617, 328 P.2d 873 (1958), and the burden of establishing the invalidity of the ordinance rests upon the party challenging its constitutionality. Letterman v. Tacoma, 53 Wash.2d 294, 333 P.2d 650 (1958). In determining the constitutionality under the less strict test if a state of facts justifying the ordinance can reasonably be conceived to exist, it is to be presumed that such facts do exist and that the ordinance was enacted in light thereof. State v. Laitinen, 77 Wash.2d 130, 459 P.2d 789 (1969).

Here, the legislature could reasonably assume that motor vehicles attempting to respond to hitchhikers' signals would make unanticipated stops, interfere with the orderly flow of traffic, and be a cause of serious automobile accidents resulting in personal injuries and economic loss. Under such a set of reasonable assumptions, the ordinance would vitally affect the safety and welfare of Seattle citizens and thus have a rational basis and be clearly constitutional.

Other indirect restrictions upon the right to travel have been upheld. See Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., Supra; Capitol Greyhound Lines v. Brice, 339 U.S. 542, 70 S.Ct. 806, 94 L.Ed. 1053, 17 A.L.R.2d 407 (1950) (taxes for the use of public facilities); Aero Mayflower Transit Co. v. Board of R.R. Comm'rs of Montana, 332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 (1947) (annual license and gross revenue tax); Aero Mayflower Transit Co. v. Georgia Public Serv. Comm'n, 295 U.S. 285, 55 S.Ct. 709, 79 L.Ed. 1439 (1935) (annual license fee); Prigmore v. Renfro, Supra (unavailability of absentee ballot); State v. Moore, 79 Wash.2d 51, 483 P.2d 630 (1971) (implied consent law).

However, even if it were necessary to apply the stricter 'compelling public interest' test, we would still find the ordinance constitutional. It has often been recognized that regulation of the use of highways for the safety of the public is within the government's constitutional police power and that highway safety is a public interest deserving protection. See Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396 (1941); Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); Kane v. New Jersey, 242 U.S. 160, 37 S.Ct. 30, 61 L.Ed. 222 (1916); State v. Albers, 303 A.2d 197, 201 (N.H.1973).

In Walker v. State, 48 Wash.2d 587, 591, 295 P.2d 328 (1956), the court held:

A concrete curb erected on the center line of a four-lane highway is a physical obstruction that prevents left turns into oncoming traffic. It is a traffic-control device, within the purview of our statutes, authorized under the police power of the state.

In Seattle v. Wright, 72 Wash.2d 556, 559, 433 P.2d 906 (1967), the court stated:

A vehicular traffic regulation enacted for the safety of the public's use of roadways is within the governing authorities' constitutional police power.

In other cases, it has been held that a compelling public interest supported the impairment of the right to travel. See Coleman v. Coleman, 32 Ohio St.2d 155, 61 Ohio Op.2d 406, 291 N.E.2d 530 (1972), where residential requirements for divorce were upheld as being justified by the compelling public interest in divorce. In Krzewinski, the court found that having firemen and policemen reside in the community where they were employed was supported by a compelling public interest. In United States v. Chalk, 441 F.2d 1277 (4th Cir. 1971), a nighttime curfew was upheld as an effective means of controlling or preventing imminent civil disorder. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965), stated that national security justified the infringement upon the right to travel.

In the instant case, the ordinance is necessary to promote the public safety and welfare of the citizens of the City of Seattle; and this constitutes a compelling public interest.

Appellant asserts the ordinance classified people according to those willing to pay and those who cannot or are unwilling to pay, thus discriminating against poor hitchhikers who have no other means of travel.

Although the rights of all persons must rest upon the same rule under similar circumstances, Louisville Gas & Elec. Co. v. Coleman, (277 U.S. 32, 72 L.Ed. 770, 48 S.Ct. 423 (1927)) . . . legislative classification is not prohibited. It is only necessary that the classification be reasonable, not arbitrary, and rest upon some difference having a fair and substantial relation to the object of the legislation. . . .

The foregoing principles apply not only under the equal protection clause of the fourteenth amendment to the United States Constitution, but under the privileges and immunities clause of the state constitution as well.

(Citations omitted.) State v. Persinger, 62 Wash.2d 362, 367, 382 P.2d 497 (1963). See also Sparkman & McLean Co. v. Govan Inv. Trust, 78 Wash.2d 584, 588, 478 P.2d 232...