Garfinkle v. Sullivan

• Decision Date: 27 March 1905
• Parties: GARFINKLE v. SULLIVAN, Chief of Police.
• Court: Washington Supreme Court

80 P. 188

37 Wash. 650

GARFINKLE v. SULLIVAN, Chief of Police.

Supreme Court of Washington

March 27, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Application for writ of habeas corpus by Louis Garfinkle against John Sullivan, as chief of police of the city of Seattle. From a judgment discharging petitioner, defendant appeals. Reversed.

Ellis De Bruler, for appellant.

Tucker & Hyland, for respondent.

DUNBAR J.

The petitioner and respondent was convicted before a justice of the peace in Seattle for peddling with a two-horse wagon without a license, which was required by virtue of Ordinance 6,036, amended by Ordinance 8,327; was fined in the sum of $5, and committed to the city jail until such fine should be paid. He sued out a writ of habeas corpus before Judge Bell in the superior court of King county, and was discharged from custody thereon. The city appeals from such judgment of discharge.

Respondent moves to dismiss this appeal for the reason that the order appealed from is not an appealable order, but, under the decisions of this court to the effect that a habeas corpus proceeding is a civil proceeding, the motion will be denied.

Respondent was prosecuted for violating an amendment to the ordinance referred to above, the pertinent parts of which are as follows: 'For peddling meat, game poultry, fruit, vegetables, butter, eggs, or other edibles farm or dairy produce not included in the exceptions of this section, with a wagon drawn by two horses, one hundred dollars, per annum; with a wagon drawn by one horse seventy-five dollars per annum; when the article, thing or product mentioned in this paragraph is sold or delivered by a person or persons carrying or transporting the same by any other means or in any other manner, fifty dollars for each such annual license period, and no license to be issued for a less period than one year.' The respondent also complained of section 15 of said Ordinance 6,036, the same reading as follows: 'It shall be unlawful for any person to set up or maintain any booth, stand, table, box, board shelf, or other object for the sale of fruits, sweetmeats, beverages or other commodity therefrom, or to expose for sale any fruit, sweetmeats, beverages or other commodity, or for any other purpose, on any street, alley or public ground in the city limits, to-wit: All that part of the city of Seattle lying south of Denny Way and west of Eighth avenue and Eighth avenue south, and including said way and avenues;' and further providing that it should be unlawful for any person to hawk or sell at retail, or peddle from any basket, box, tray, wagon, etc., fruits or other commodities, with the exception of milk, ice, bread, or newspapers, within the same territory--for the reason that subdivision 8 of section 14 makes an unlawful discrimination as against peddlers and in favor of local dealers, which subdivision reads as follows: 'That this section shall not be applicable to storekeepers or merchants who have permanent business locations engaged in the sale of the things, articles or products aforesaid; provided, however, that no merchant or storekeeper shall act as a peddler, huckster, or hawker without first obtaining a license as aforesaid.' The court found that that part of Ordinance 6,036 was void, for the reason that it discriminated in favor of the merchants in allowing them to hawk or peddle commodities in the district which was restricted and in which other peddlers were prohibited from operating in like manner. But an examination of this ordinance convinces us that the court was entirely in error in its construction, and that subdivision 8 complained of, viz., the provision that the section should not be applicable to storekeepers or merchants, was intended to apply exclusively to the provisions of section 14, instead of to section 15, with reference to the restricted district, and that there was no intention in enacting the ordinance to allow any one to peddle or hawk within the restricted district, and therefore no discrimination in favor of the local merchants. The provision, it is true, seems to be rather senseless under any construction which can be placed upon it, for it provides that section 14 shall not be applicable to storekeepers or merchants, and then makes the further provision that no merchant or storekeeper shall act as a peddler or huckster or hawker without first obtaining a license as aforesaid, thereby placing the merchant in exactly the same position as it does others, a position that he...