Fleetwood v. Read

• Decision Date: 13 October 1899
• Citation: 21 Wash. 547,58 P. 665
• Court: Washington Supreme Court
• Parties: FLEETWOOD v. READ.

58 P. 665

21 Wash. 547

FLEETWOOD v. READ.

Supreme Court of Washington

October 13, 1899

Appeal from superior court, Pierce county; Thomas Carroll, Judge.

From an order denying the petition of T. J. Fleetwood for a writ of habeas corpus, he appeals. Affirmed.

Fenley Bryan, for appellant.

W. H. Pritchard and Walter M. Harvey, for respondent.

DUNBAR, J.

The city of Tacoma passed the following ordinance:

'Be it ordained by the city of Tacoma:

'Section 1. Every person, firm or corporation within the city of Tacoma who shall use any stamps, coupons, tickets, cards or other devices for the sale of goods, wares and merchandise which said stamps, coupons, tickets or other similar devices shall entitle the purchaser receiving the same to procure from any other firm or corporation any goods, wares or merchandise free of charge upon production of any number of said stamps, tickets, coupons, cards or other similar devices, shall, before using the same, obtain a license therefor from the city clerk.

'Sec. 2. Before obtaining such license the person applying therefor shall pay to the city treasurer the sum of one hundred dollars; and upon such payment being made and filing a receipt therefor with the city clerk, the city clerk shall issue to the firm or corporation making such payment a license to use, for one year, the stamps, coupons, tickets, cards of other similar devices mentioned in section 1 of this ordinance.

'Sec. 3. That any person violating the provisions of this ordinance shall be punished by a fine of not less than fifty dollars, and not exceeding one hundred dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment.'

The appellant, Fleetwood, was charged with violating this ordinance; was tried before a justice of the peace, found guilty, and sentenced to pay a fine of $50. In default of apyment he was committed to jail, his custodian being the chief of police of the city of Tacoma; whereupon the said Fleetwood made application by petition to the Honorable Thomas Carroll, one of the judges of the superior court of Pierce county, for a writ of habeas corpus, setting forth that the only cause or pretense of his confinement and restraint was the violation of said ordinance, and that the said ordinance is void, because the said city of Tacoma had no authority or power to enact or enforce it; that said ordinance is in conflict with the constitution of this state that it is unreasonable, and that it requires a portion, and not the whole, of a class to pay a license for the transaction of business. So that the only question here is as to the validity of the ordinance. It is urged by the appellant that there are two kinds of licenses which may be imposed by municipal governments: (1) Licenses imposed in the exercise of the ordinary police powers of the city; (2) licenses imposed for the sole purpose of raising revenue, or in the exercise of the power of taxation; and that licenses cannot be imposed for either of these purposes unless the power has been conferred upon the municipality attempting to do so by the legislative act under which it is organized and created; and authorities are cited to show that a grant of power to impose licenses in the exercise of the police power does not confer authority to impose a license for the purpose of raising revenue. It is assumed by the appellant that it follows that, if the ordinance in question has no relation to the exercise of the police power, and is only an attempt to raise revenue by license, and the legislature has granted the city of Tacoma power to issue licenses only in the exercise of the police power, the ordinance is void. We do not think it is necessary to follow counsel for appellant in his attempt to show that the ordinance in question is an ordinance regulating the exercise of the police power, for it may be conceded, we think, that, as the term 'police power' is ordinarily used, there is no police power exercised by virtue of this ordinance. It is boldly asserted, however, by the respondent, that under the power granted by the legislature not only is the city authorized to pass ordinances controlling the exercise of the police power, but it is authorized to pass ordinances for the purpose of raising revenue only. The law which authorized this ordinance, if it is authorized, is subdivision 33, § 739, 1...