City of Spokane v. Macho

• Decision Date: 04 January 1909
• Citation: 51 Wash. 322,98 P. 755
• Parties: CITY OF SPOKANE v. MACHO.
• Court: Washington Supreme Court

98 P. 755

51 Wash. 322

CITY OF SPOKANE v. MACHO.

Supreme Court of Washington

January 4, 1909

Appeal from Superior Court, Spokane County; Am. A. Huneke, Judge.

A. M Macho was charged with violating an ordinance of the city of Spokane. From a judgment of the superior court dismissing a judgment of conviction of a police magistrate, the city appeals. Affirmed.

L. R Hamblen, F. D. Allen, and Harry A. Rhodes, for appellant.

J. M Geraghty and Alex M. Winston, for respondent.

CHADWICK J.

Defendant was arrested and charged with the violation of an ordinance of the city of Spokane, Wash., entitled: 'An ordinance licensing and regulating the keepers of employments offices and the business of employment agencies in the city of Spokane, providing a penalty for the violation thereof,' etc. Among other matters covered by the ordinance, it is provided: 'Sec. 7. It shall be unlawful for any person keeping an employment office to make any wilful misrepresentation to any person seeking employment through such office, or to wilfully deceive any person seeking employment through such office, and take a fee for such employment.' Defendant was convicted before the police magistrate of the city, whereupon he appealed to the superior court. In that court he demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained, the defendant discharged, and, from a judgment of dismissal, the city has appealed.

The charter provisions relied upon to sustain this prosecution are as follows: 'Sec. 53. To regulate or prohibit the carrying on within the corporate limits of the city of occupations which are of such nature as to affect the public health or good order of the city or to disturb the public peace, and which are not prohibited by law, and to provide for the punishment,' etc.

'Sec. 55. To provide for the punishment of all disorderly conduct and of all practices dangerous to the public safety or health, and to make all regulations necessary for the preservation of public, morality, health, peace, and good order,' etc.

While no account of it was taken in the court below, subdivision 5, § 59, 'to license, tax, regulate, and control hawkers, peddlers, * * * and all other classes of business not otherwise in this charter provided for,' is now urged as sufficient in itself, or, when taken in connection with the others, to warrant a conviction and sentence. Assuming that it is within the police power of the city to enact an ordinance to protect the citizen from frauds, impositions, willful misrepresentations, and deceits, section 7 of the ordinance in question cannot be sustained. It is a fundamental proposition that an ordinance must be fair in its terms, impartial in its operation, and general in its application. Dillon, Mun. Corp. 322; McQuillan, Mun. Ord. 193. The ordinance before us assumes to license and regulate the business of employment agencies. This has been held to be a proper exercise of the police power of the state. Price v. People, 193 Ill. 114, 61 N.E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306.

But section 7 goes further. It defines a common-law crime, and provides a penalty for its infraction--not for all who may be guilty of a like offense, but the employment agent who shall by willful misrepresentation or deceit obtain the money of another. It cannot be denied that the business of the employment agent is a legitimate business, as much so as is that of the banker, broker, or merchant; and, under the methods prevailing in the modern business world, it may be said to be a necessary adjunct in the prosecution of business enterprises. The vice of the section under discussion lies in this: That it makes an act criminal in one who may be engaged in a lawful business, while the act committed under like circumstances by another may not be so. A business may be classified by ordinance under the police power of a state if the object of the legislation is revenue, and all necessary and proper...