City of Spokane v. Coon

• Decision Date: 21 March 1940
• Docket Number: 27814.
• Parties: CITY OF SPOKANE v. COON.
• Court: Washington Supreme Court

100 P.2d 36

3 Wn.2d 243

CITY OF SPOKANE v. COON.

No. 27814.

Supreme Court of Washington

March 21, 1940

Department 2.

Mary E Coon was convicted in municipal court of operating a hospital in the City of Spokane without a permit and she appealed to the superior court which set aside the verdict and dismissed the proceedings, and the city appeals.

Reversed with instructions.

Appeal from Superior Court, Spokane County; Wm. A. Huneke, judge.

G. M Ferris, B. A. Farley, and Paul F. Schiffner, all of Spokane for appellant.

Tustin & Chandler, and Floyd A. Futter, all of Spokane, for respondent.

BEALS, Justice.

The Spokane city council, September 10, 1923, passed ordinance No. C3157, regulating the location and maintenance of hospitals, and requiring a permit therefor. for. Section 2 of the ordinance reads as follows: 'No hospital shall be established or maintained in the city of Spokane without a written permit therefor first having been obtained from the health officer of said city.'

Section 3 provides for the application for a permit, the second paragraph of the section reading as follows: 'No permit shall be granted by the health officer for the maintenance of any hospital in a building or premises not conforming to the standards fixed and specified by the building ordinances of the city for a hospital, and Before any such permit is granted the applicant therefor must present to the health officer a certificate of the building inspector certifying that the building to be occupied by the proposed hospital conforms to the building ordinances.'

By § 5 'every hospital established or maintained in violation of the provisions of this ordinance' was declared to be a public nuisance, and subject to abatement as such.

By § 6, the violation of any provision of the ordinance was declared a misdemeanor, punishable by fine or imprisonment.

Ordinance No. C1891 was passed by the city council February 23, 1915, and is known as the building code. The first paragraph of § 40 of this ordinance reads as follows: 'Every building hereafter erected and every building now erected and hereafter to be used for hospitals, asylums, school house or sanitarium purposes for human beings, shall be of class A, B, C, D, or E, if over two stories in height.'

This section contains other building regulations governing the construction of buildings to be used for hospitals, and also the following paragraph: 'No frame building not now used shall be used for a hospital, asylum or sanitarium for human beings.'

It will be noted that one applying under the hospital ordiance for a permit to operate a hospital must present to the city authorities a certificate from the building inspector, certifying that the building proposed to be used as a hospital complies with the building code. In the absence of such a certificate, no permit will be issued. Under the building code, the use of a structure occupied as a hospital prior to the enactment of that ordinance may continue, although the building does not meet the requirements of the code, while a building thereafter constructed, or thereafter for the first time used as a hospital, must comply with the building regulations. The building code, then, contemplates two classes of structures which may be used as hospitals: First, those which were so used prior to the enactment of the ordinance; and second, those constructed or put to use as hospitals thereafter.

The defendant, Mary E. Coon, an osteopathic physician, September 1, 1936, commenced to conduct a private hospital in a three story frame residence, located at 2136 West Riverside avenue, Spokane. Defendant attempted to obtain a permit authorizing her to operate a hospital, but as the building did not meet the requirements of the building ordinance, she was unable to secure a certificate from the building inspector, and made no further attempt to procure a permit to operate the hospital, conducting the same without a permit for approximately three years. It appears, however, that defendant made certain installations required by the fire department.

During the month of July, 1939, defendant was arrested, charged with operating a hospital without a permit, and having been convicted Before the municipal court of the city, appealed to the superior court. She was found guilty by the jury, whereupon the trial court granted defendant's motion to set aside the verdict, upon the ground that the city ordinance under which defendant had been convicted was unconstitutional. Judgment having been entered dismissing the proceeding, the city has appealed therefrom to this court.

Error is assigned upon the granting of respondent's motion to set aside the verdict, and upon the entry of judgment of dismissal.

During the trial, respondent relied solely upon her contention that the ordinance pursuant to which she was prosecuted was unconstitutional and void. The right of appellant city, under its police power, to regulate private hospitals was not questioned. Respondent does not contend that she was not conducting a hospital, as defined by the ordinance, and she, of course, admits that she was so conducting the same without a permit.

It is, of course, the general rule that every presumption is in favor of the constitutionality of a law or ordinance. Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998. As we said in the case of McDermott v. State, 197 Wash. 79, 84 P.2d 372, 374, 'Every reasonable presumption must be indulged in favor of the constitutionality of this statute, and the burden rests upon appellant to establish clearly its invalidity.'

Under art. XI, § 11, of our state constitution, cities of the first class enjoy the same police power within their borders as does the state itself. Bungalow Amusement Co. v. Seattle, 148 Wash. 485, 269 P. 1043, 60 A.L.R. 166; Brennan v. Seattle, 151 Wash. 665, 276 P. 886.

The question to be here determined is whether ordinance No. C3157 discriminates against respondent, in violation of the Fourteenth Amendment to the Constitution of the United States, or in violation of art. I, § 12, of the constitution of the state of Washington. Respondent argues that the ordinance does discriminate against respondent, because § 40 of ordinance No. C1891, the building code, is not retroactive, but permits the continued operation of buildings used as hospitals Before the effective date of the ordinance last mentioned. By its terms, the building code, in the paragraph above quoted, permits the use as hospitals of buildings devoted to that use prior to the effective date of the ordinance, even though such buildings fail to comply with the provisions of the ordinance, and could not be first used as hospitals after the ordinance became effective.

Appellant argues that the ordinance creates two classes of hospitals: First, those in operation prior to the enactment of the ordinance; and second, those established thereafter, arguing that the ordinance applies equally and fairly within each class, without discrimination.

The Supreme Court of the United States, in the case of Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 340 55 L.Ed. 369, Ann.Cas.1912C, 160, said: '1. The equal-protection clause of the 14th Amendment does not take from the state the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety, or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.'

In the case of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328, 330, in affirming a conviction of one charged with the offense of selling groceries on Sunday, in violation of a city ordinance, this court said: '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 conizant of conditions and things not commonly cognized by courts.'

The cases of State ex rel. Scott v. Superior Court, 173 Wash. 547, 24 P.2d 87, and Garretson Co. v. Robinson, 178 Wash. 601, 35 P.2d 504, approved a similar rule.

In the early case of Fox v. Territory, 2 Wash.Ter. 297, 5 P. 603, 605, it appeared that the defendant was convicted of the offense of practicing medicine contrary to the existing code. On appeal, the defendant contended that the law under which he had been convicted was unconstitutional, in that it prescribed a standard of qualification which he was required to meet, while relaxing the standard in favor of those who were practicing medicine in the territory at the time of the enactment of the statute. While recognizing that the law fixed a different standard for the two classes, it was held that the defendant suffered no deprivation of any right secured by the constitution of the United States. In the course of the opinion, the court, speaking through Judge Turner, said:

'Another objection to the law, urged by counsel,

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