Continental Baking Co. v. City of Mt. Vernon, 25496.

• Decision Date: 14 May 1935
• Docket Number: 25496.
• Citation: 44 P.2d 821,182 Wash. 68
• Court: Washington Supreme Court
• Parties: CONTINENTAL BAKING CO. et al. v. CITY OF MT. VERNON et al.

44 P.2d 821

182 Wash. 68

CONTINENTAL BAKING CO. et al. v. CITY OF MT. VERNON et al.

No. 25496.

Supreme Court of Washington

May 14, 1935

Department 1.

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Action by the Continental Baking Company and others against the City of Mount Vernon and others. From an adverse judgment plaintiffs appeal.

Affirmed.

Frank R. Jeffrey, of Seattle, for appellants.

R. V Welts, of Mt. Vernon, for respondents.

GERAGHTY Justice.

Plaintiffs sought to enjoin the defendants, city of Mt. Vernon and certain of its officials, from enforcing Ordinance No. 736 as amended by Ordinance No. 738, of the city providing for licensing persons engaged in the manufacture or delivery within the city of fresh bakery products.

Section 1 of the ordinance is declaratory of its purpose, and reads: 'The health and welfare of the inhabitants of the City of Mount Vernon is of first importance and depends upon the quality and cleanliness and freedom from harmful substances in and the preparation under sanitary conditions of food furnished such inhabitants.'

Section 2, as amended, is as follows: 'No person, firm or corporation shall operate any bakery or engage in the manufacture or delivery within the City of Mount Vernon, Washington, of any bread, pastry, rolls, cakes, pies or fresh bakery products for sale without obtaining a license from the City of Mount Vernon as herein required and no person, firm or corporation shall receive, sell, offer or expose for sale within the City of Mount Vernon any bread, pastry, rolls, cakes, pies or fresh bakery products baked and manufactured or delivered by any person, firm or corporation not having obtained a manufacturer's or delivery license and thereby become subject to inspection as required by the other terms of this ordinance, provided, however, no person, firm or corporation operating a retail store in the City of Mount Vernon shall be required to obtain a license to make retail delivery to purchasers within said City of any bread, pastry, rolls, cakes, pies or fresh bakery products sold at retail.'

Other provisions of the ordinance prescribed an annual license fee of $100 and for the inspection, by the city health officer, of bakeries within the city and of vehicles in which bakery products are delivered. The licensee, having paid the initial $100 fee, is entitled to additional copies of the license, for $1 each. It is required that a copy of the license shall be displayed conspicuously upon each vehicle used by the licensee in making deliveries. Section 6 of the ordinance provides that an applicant for a license shall be credited, on account of the fee, with the amount of taxes paid by him upon real and personal property within the city of Mt. Vernon within one year of the date of the application. A violation of the ordinance is made a misdemeanor, subject to fine of $100 for each offense. It is also provided that, if any section of the ordinance be declared invalid, its invalidity shall not affect the remaining sections or provisions of the ordinance.

In their complaint, plaintiffs allege that they are engaged in the business of manufacturing, selling, and delivering bakery products in and throughout the several cities of the state, including the defendant city of Mt. Vernon, and have their principal place of business in the city of Seattle; that they have secured a valuable trade and business in the city of Mt. Vernon, particularly for the sale of their products at wholesale to grocers and other retail distributors of food products; and that in order to carry on their business it is necessary for them to deliver their products in the city by motortrucks owned and operated by them, or to cause delivery to be made by auto freight lines operated under license from the state of Washington. It is alleged that the defendants have arrested certain of the drivers employed by plaintiffs, and threaten such arrests, and will do so unless restrained by the court.

The trial court held section 6 of the ordinance, providing for credit upon the license fee for taxes paid on property in the city of Mt. Vernon, unconstitutional, but held the ordinance valid in all other respects, and entered an order dismissing plaintiffs' action. The order provided that, if the plaintiffs took an appeal from the order to the Supreme Court within five days from its date, the defendants should be restrained and enjoined from enforcing the ordinance pending the appeal. The plaintiffs appeal from the order.

The appellants challenge the ordinance as being discriminatory (a), in that section 6 favors residents of the city of Mt Vernon who pay real and personal property taxes, by the credit on the license fee granted to them: and (b) in that the ordinance, and...