City of Seattle v. Rogers

• Citation: 106 P.2d 598,6 Wn.2d 31
• Decision Date: 24 October 1940
• Docket Number: 27971.
• Parties: CITY OF SEATTLE v. ROGERS.
• Court: United States State Supreme Court of Washington

106 P.2d 598

6 Wn.2d 31

CITY OF SEATTLE v. ROGERS.

No. 27971.

Supreme Court of Washington, En Banc.

October 24, 1940

E Rogers was charged with violation of an ordinance of the City of Seattle making it unlawful to conduct a charity campaign where part of the proceeds is withheld as compensation unless a charity solicitation license is obtained by person in charge of solicitations and a solicitor's license is obtained by each solicitor. The jury found the defendant guilty. From an order granting defendant's motion in arrest of judgment and directing that he be discharged from custody, the city appeals.

Affirmed.

Appeal from Superior Court, King County; Chester A Batchelor, judge.

A. C Van Soelen and C. V. Hoard, both of Seattle, for appellant.

Edgar S. Hadley, of Seattle, for respondent.

BEALS Justice.

October 25, 1938, the city of Seattle filed Before the police judge for Seattle precinct a complaint charging the defendant, E. Rogers, with violation of § 276 of city ordinance No. 48022, as amended by ordinance No. 66974. The section above referred to reads as follows: 'It shall be unlawful for any person either as principal, managing agent or supervisor, or as solicitor, collector or salesman, to solicit, collect or receive money or property, or to solicit the sale of or to sell an article or thing or ticket of any kind where it is represented that the proceeds of such solicitation and/or sale, or any part thereof, are to be used for purposes of charity, relief or benefit, and where any person engaged in and about such solicitation and/or sale receives, or is to receive, directly or indirectly, compensation or reward therefor, or where the person or agency doing the soliciting withholds a portion of the proceeds thereof as compensation or reward, unless a 'Charity Solicitation License' and a 'Charity Solicitor's License' are obtained for each drive or campaign for funds or property, according to and in compliance with the provisions of Ordinance No. 48022, as amended, and this ordinance. Such 'Charity Solicitation License,' the fee for which is hereby fixed in the sum of One Thousand ($1,000.00) Dollars, shall be obtained by the person in charge of solicitations, and a 'Charity Solicitor's License,' the fee for which is hereby fixed in the sum of One Hundred ($100.00) Dollars, shall be obtained by each solicitor, collector or salesman. The provisions of this ordinance shall not apply to the annual campaign of the Seattle Community Fund.'

Apparently defendant was charged with conducting a so-called charity campaign for the raising of funds on behalf of an Elks organization (colored), which proposed to give a Christmas party for underprivileged children. When the case was called for trial Before the police judge, the defendant orally demurred to the complaint, on the ground that the section of the ordinance above quoted was discriminatory and in violation of both the Federal and the State Constitutions, and was for this reason invalid. The defendant's oral demurrer was sustained by the police judge, and the action dismissed, whereupon the city brought the matter Before the superior court for review by way of a writ of certiorari. In due time the superior court ruled that the ordinance was constitutional, and that the police judge had erred in sustaining the defendant's demurrer to the complaint, and the cause was remanded to the police court for trial. The police judge attempted to appeal to this court from the judgment of the superior court, but his appeal was dismissed. City of Seattle v. Bell, 199 Wash. 441, 92 P.2d 197. The case was then remanded to the police court for trial, the defendant's demurrer was overruled, and the trial of the defendant resulted in his conviction, from which judgment the defendant appealed to the superior court.

On the retrial of the cause Before a jury in the superior court, the jury returned a verdict of guilty, whereupon the defendant filed a motion in arrest of judgment, again urging that the ordinance above referred to, and under which he had been convicted, was unconstitutional. The plaintiff city contended, first, that the judgment of the superior court in the certiorari proceeding had established the validity of the ordinance as the law of the case, and second, that the ordinance is constitutional. The trial court held that the ordinance is void, granted the defendant's motion in arrest of judgment, and entered an order directing that he be discharged from custody. From this order the city has appealed to this court, thereby presenting the legal questions involved.

Appellant assigns error upon the ruling of the trial court to the effect that the law of the case was not established by the judgment of the superior court in the certiorari proceeding, and upon the ruling of the trial court that the city ordinance is unconstitutional.

We shall first discuss appellant's contention that the ruling of the superior court in the certiorari proceeding became the law of the case, and was thereafter binding on the superior court at the time of the trial Before that tribunal. It does not appear that respondent was a party to the certiorari proceeding. City of Seattle v. Bell, supra. In any event, the first ruling of the superior court was subject to reconsideration and revision when the same question was again presented to that court during respondent's trial. The superior court, on respondent's appeal from his conviction Before the police judge, was required to try the case de novo. We are not inclined to hold that at the time referred to, the superior court was bound by the prior ruling of that court in the certiorari proceeding. This assignment of error is without merit.

A more difficult question is presented in connection with appellant's argument that the city ordinance under which respondent was convicted is constitutional. At the outset, it may be admitted that the ordinance is regulatory, practically prohibitory, in its nature, and not a revenue measure. It is an exercise of the city's police power, which the city exercises within its jurisdiction to practically the same extent as the state itself. City of Spokane v. Coon, Wash., 100 P.2d 36. A somewhat similar regulatory ordinance was held valid in the case of State v. Pitney, 79 Wash. 608, 140 P. 918, Ann.Cas.1916a, 209, which case was cited with approval in the later case of City of Tacoma v. Fox, 158 Wash. 325, 290 P. 1010.

The...