City of Seattle v. Ross, 34792

• Decision Date: 24 September 1959
• Docket Number: No. 34792,34792
• Parties: CITY OF SEATTLE, Respondent, v. Marion C. ROSS, Appellant.
• Court: Washington Supreme Court

Page 655

54 Wn.2d 655

344 P.2d 216

CITY OF SEATTLE, Respondent, v. Marion C. ROSS, Appellant.

No. 34792.

Supreme Court of Washington, Department 2.

Sept. 24, 1959.

Burton & Greenlee, Seattle, Philip L. Burton, Seattle, of counsel, for appellant.

A. C. Van Soelen, Corp. Counsel, Thomas J. Owens, Asst. Corp. Counsel, Seattle, for respondent.

ROSELLINI, Judge.

The appellant was charged in municipal court with a violation of Seattle ordinance No. 40149-9a, as amended by ordinance No. 86061-1, which became effective on or about May 4, 1957, and has not been heretofore construed. The provision under which the appellant was charged, tried and found guilty, reads 'It is unlawful for anyone not lawfully authorized to frequent, enter, be in, or be found in, any place where narcotics, narcotic drugs or their derivatives are unlawfully used, kept or disposed of.'

On appeal to the superior court, the appellant waived jury trial. According to the memorandum decision, the court believed the appellant's testimony that he had no knowledge that there were narcotics in the apartment where he was arrested; and that he went to the apartment for the purpose of borrowing money from the tenant. However, the court was of the opinion that it was the purpose of the ordinance to penalize any one found upon the premises, regardless of the innocence of his errand, and imposed upon the appellant a fine of $25 and a thirty-day jail sentence. The jail sentence was suspended because there was no evidence that the appellant had ever used narcotics or had been guilty of any criminal offense.

Appealing from that judgment and sentence, the appellant challenges the ordinance as unconstitutional. It is his contention that the ordinance constitutes an unreasonable exercise of the police power, inasmuch as it makes unlawful the doing of innocent acts which are unrelated in any way to the narcotic traffic and the punishment of which could not conceivably tend to discourage that traffic. He points out, and rightly, that the ordinance gives to the person found upon premises where narcotics happen to be illegally used, kept, or disposed of, no opportunity to explain his presence, but creates a conclusive presumption that he was there for an unlawful purpose unless he can show that he was authorized by some agency of government to go upon the premises. The appellant points out and the respondent does not deny the fact, that in a place where narcotics are illegally kept, used, or disposed of, there is ordinarily no physical characteristic which would serve to warn an innocent person of the presence of such narcotics.

Nevertheless, under the language of the ordinance, the mailman, the delivery man, the solicitor, the bill collector, the painter and the paper hanger, the carpenter, and the doctor, go upon such premises at their peril, however ignorant they may be that narcotic drugs are illegally kept, used, or disposed of there. Likewise, the customer who enters a pharmacy to have a prescription filled, not knowing that the druggist's license has expired or been revoked, or the patron of a restaurant or bar who is ignorant of the fact that narcotics are exchanging hands at a nearby table, is subject to arrest and punishment.

The respondent maintains that the law was not intended to be applied so unreasonably (although it contends that it was meant to encompass the appellant) and that its purpose is simply to raise a presumption of involvement with the illegal traffic. If this is indeed its purpose, the language used is inadequate to convey that meaning. The only persons excluded from the operation of the ordinance are those lawfully authorized to be upon the premises. The respondent would have us rewrite the statute to exclude persons upon the premises for lawful purposes, as well as those who are authorized or commissioned to go there. This the court cannot do. Where the language of a statute is plain, unambiguous, and well understood according to its natural and ordinary sense and meaning, the statute itself furnishes a rule of construction beyond which the court cannot go. Parkhurst v. City of Everett, 51 Wash.2d 292, 318 P.2d 327. The trial court had no difficulty in discerning the meaning of the words used in this ordinance. A person 'lawfully authorized,' the court decided and we agree, is a person carrying some express authority to go upon the premises, as a law enforcement officer, narcotic agent, or the like, and not one who goes upon some lawful business but without express authority.

This being the case, the effect of the ordinance is to create an irrebuttable presumption that any person found in proximity to unlawfully kept narcotic drugs and not carrying with him some official authorization is guilty of participating in the narcotic traffic.

It is agreed that the purpose of the ordinance was to facilitate the discovery and apprehension of persons engaged in such traffic and was enacted in the exercise of the city's police power.

The police power of a municipality is derived through art. XI, § 11, of the state constitution. Commenting upon that provision of the constitution, this court said in Detamore v. Hindley, 83 Wash. 322, 145 P. 462, 463:

'This is a direct delegation of the police power as ample within its limits as that possessed by the Legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, the regulation reasonable and consistent with the general laws.'

The grant of police power to a city carries with it the necessary implication that its exercise must be reasonable. Patton v. City of Bellingham, 179 Wash. 566, 38 P.2d 364, 98 A.L.R. 1076; Detamore v. Hindley, supra; Seattle v. Ford, 144 Wash. 107, 257 P. 243; State v. Spiller, 146 Wash. 180, 262 P. 128; 2 Dillon on Municipal Corporations (5th ed.) § 589, 43 C.J. 213, 228; 62 C.J.S. Municipal Corporations §§ 142, 148.

The question therefore arises whether the ordinance in question is reasonable and proper for the protection of the health, safety, morals and general welfare of the community. Whether the facts of a particular case warrant the assertion of police power, is a judicial question to be resolved by the courts. Patton v. City of Bellingham, supra, and authorities...