City of Seattle v. Gervasi

• Citation: 144 Wash. 429,258 P. 328
• Decision Date: 27 July 1927
• Docket Number: 20519.
• Parties: CITY OF SEATTLE v. GERVASI.
• Court: Washington Supreme Court

258 P. 328

144 Wash. 429

CITY OF SEATTLE v. GERVASI.

No. 20519.

Supreme Court of Washington

July 27, 1927

Department 2.

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

B Gervasi was convicted of violating the Sunday ordinance of the city of Seattle, and he appeals from the judgment of the superior court, affirming a judgment of the police court. Judgment affirmed.

E. F Kienstra, of Seattle, for appellant.

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

HOLCOMB J.

Appellant was charged with the offense of selling groceries on Sunday under the provisions of an ordinance of Seattle (No. 32138), and was found guilty and adjudged to pay a fine of $1 and costs. Section 1 of that ordinance provides:

'Every person who, on the first day of the week, shall within the corporate limits of the city of Seattle, promote any noisy or boisterous sport or amusement, disturbing the peace of the day; or who shall conduct or carry on, or perform or employ any labor about any trade or manufacture, except livery stables, garages, and works of necessity or charity conducted is an orderly manner so as not to interfere with the repose and religious liberty of the community; or who shall open any drinking saloon, or sell, offer or expose for sale any personal property, shall be guilty of a misdemeanor: Provided, that meals without intoxicating liquors may be served on the premises or elsewhere by caterers and prepared tobacco, milk, fruit, confectionery, newspapers, magazines, medical, and surgical appliances, may be sold in a quiet and orderly manner. In works of necessity or charity is included whatever is needful during the day for the good order or health or comfort of a community; but keeping open a barber shop, shaving or cutting hair, shall not be deemed a work of necessity or charity, and nothing in this section shall be construed to permit the sale of uncooked meats, groceries, clothing, boots or shoes.'

Section 2 of the ordinance provides penalties.

The complaint charges a misdemeanor, in the language of the ordinance, by selling groceries on Sunday. The case was first tried in police court. Where appellant was adjudged guilty and fined $1. He appealed to the superior court, where a demurrer was interposed to the complaint on the grounds (1) that the facts charged do not constitute a crime; (2) that the ordinance upon which the charge is based is class legislation, discriminating, arbitrary, and unconstitutional.

The superior court overruled the demurrer, and upon appellant's refusal to proceed further, judgment was entered affirming the judgment of the police court, from which this appeal proceeds.

The errors assigned are that it was error to overrule the demurrer, because the ordinance is class legislation in violation of section 1 of the Fourteenth Amendment to the federal Constitution, and that the ordinance is class legislation violative of sections 3 and 12, art. 1, of the state Constitution.

Appellant concedes that Sunday legislation is generally upheld by the courts everywhere, as it was by this court in State v. Nichols, 28 Wash. 628, 69 P. 372, in which we overruled the former case of Tacoma v. Krech, 15 Wash. 296, 46 P. 255, 34 L. R. A. 68. But appellant contends that it is also the well-nigh universal rule that there must be no discrimination or arbitrary action. It is argued that under the Nichols Case, supra, the Legislature may classify although other occupations may function under the Sunday legislation, but in this case we are presented with the question as to the authority of the city council 'to split a class.' It is argued that, if the council is permitted to say that tobacco and confectionery can be sold on Sunday and not other lines of merchandise, then there is arbitrary and discriminatory legislation.

Section 11, art. 11, state Constitution, confers upon any county, city, town, or township power to make and enforce within its limits all such local police, sanitary, and other regulations as are not in conflict with general laws.

In Detamore v. Hindley, 83 Wash. 322, 145 P. 462, we held that the above constitutional provision was a direct delegation of the police power, as ample within its limits as that possessed by the Legislature itself. In conformity with the constitutional grant the Legislature confirms and defines such power to municipal corporations by section 8966 and 8981, Rem. Comp. Stat. By section 8982, Rem. Comp. Stat., a liberal construction was directed to be given all the foregoing powers granted to municipalities. The city by its charter accepted and assumed the powers and prerogatives granted by the Constitution and the statutes.

Since the ordinance in question is not in conflict with any general state statute, it is, unless offensive by reason of constitutional limitation, a valid exercise of municipal power. It is, therefore, to be treated as a state law. Detamore v. Hindley, supra; Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900.

The cases generally agree that Sunday laws when directed against particular occupations or a particular class of tradesmen must have a reasoable connection with the welfare of the public. This 'reasonable connection,' however, is readily found by the courts as a matter of economy and welfare, without the assistance of the Decalogue, where the statute imposes no burden on any person of a class which is not imposed upon all of the same class. The courts, as a rule, do not revise the judgment of the Legislature as to the wisdom of such classification.

We have held times innumerable that, where all of a class are included under any regulatory or prohibitory law, the objection as to discrimination, denial of equal privileges or immunities, or the taking of property without due process of law, based upon the fact that other businesses are not prohibited, is not sound where the law operates equally upon all persons similarly situated. Also that Legislatures may be cognizant of conditions and things not commonly cognized by courts. State v. McFarland, 60 Wash. 98, 110 P. 792, 140 Am. St. Rep. 909; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101, 37 L. R. A. (N. S.) 466; State v. Pitney, 79 Wash. 608, 140 P. 918, Ann. Cas. 1916A, 209; State ex rel. Lindsey v. Derbyshire, 79 Wash. 227, 140 P. 540; Cawsey v. Brickey, 82 Wash. 653, 144 P. 938; Barker v. State Fish Commission, 88 Wash. 73, 152 P. 537, Ann. Cas. 1917D, 810; State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 P. 837; State v. Ferry Line Auto Bus Co., 93 Wash. 614, 161 P. 467; Allen v. Bellingham, 95 Wash. 12, 163 P. 18. And that such legislation is not obnoxious to the restrictions of section 3, art. 1, state Constitution, in laws enacted in the exercise of police power. Fisher Flouring Mills Co. v. Brown, 109 Wash. 680, 187 P. 399, citing Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253.

Section 1 of the ordinance makes no exception of any person selling groceries on Sunday, and all persons within the class of those selling groceries are included within the ban of the ordinance. The restrictions as to laboring and selling goods on Sunday in the ordinance are not prohibitions, but regulations. In re Ferguson, 80 Wash. 102, 141 P. 322. It remains to be determined whether the numerous exceptions contained in the ordinance constitute discriminatory and arbitrary class legislation.

We have also many times held that Sunday closing laws are within the police power. State v. Nichols, supra; State v. Bergfeldt, 41 Wash. 234, 83 P. 177, 6 Ann. Cas. 979; State v. Herald, 47 Wash. 538, 92 P. 376, 20 L. R. A. (N. S.) 433; In re Donnellan, 49 Wash. 460, 95 P. 1085.

In State v. Nichols, supra, we considered a state statute containing numerous exceptions. It excepted hotels, except where intoxicating liquors were sold, drug stores, livery stables, and undertakers.

We quoted from State ex rel. Walker v. Judge, 39 La. Ann. 132, 1 So. 437, as follows:

'There exists a remarkable consensus of authority that the establishment of a compulsory day of rest in each week is a legitimate exercise of the police power. Such laws have been passed in nearly every state of the Union and their constitutionality has never been sucessfully questioned in but a single case within our knowledge, that of ex parte Newman, 9 Cal. 502; and it was subsequently overruled by the same court in Ex parte Andrews, 18 Cal. 678. * * *

'It only remains to consider the objection urged against the law on the ground of inequality, because of the numerous exceptions contained in the act. The objection has not the slightest force. The law is not unequal in any constitutional sense. No person in the state is permitted to pursue any of the prohibited callings on Sunday; every person is at liberty to pursue those which are excepted. The same discretion which authorized the Legislature to determine that the public health, welfare, and convenience required the adoption of the general rule equally authorized it to exempt from its operation certain specified callings on the ground that the public welfare and convenience would be more hindered than advanced by the suspension of such callings. It is not for us to control the lawmaking power in such a case, or to require it to fit its laws to a Procrustean bed of our own construction.'

In the Nichols Case another California case was quoted (ex parte Koser, 60 Cal. 177) as follows:

'The exclusion made by section 301 [Pen. Code] was not arbitrary and the discrimination was reasonable. It was very easy to perceive that there are features in the character of the callings referred to in section 301, and in their relation to the community in which they exist, which render such exclusion

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