In re Aubry

• Decision Date: 20 December 1904
• Parties: In re AUBRY.
• Court: Washington Supreme Court

78 P. 900

36 Wash. 308

In re AUBRY.

Supreme Court of Washington

December 20, 1904

Petition by Ronald Aubry for writ of habeas corpus. Petition granted and petitioner discharged.

H. F Norris and Vance & Mitchell, for petitioner.

Fremont Campbell, Charles O. Bates, and Walter M Harvey, for respondent.

PER CURIAM.

This is an original application, instituted in this court by the petitioner for a writ of habeas corpus. From the record it appears that the petitioner is a citizen of the state of Washington, residing at the city of Tacoma therein, where he has resided for 14 years last past; that during such time he has pursued and practiced the trade and occupation of a blacksmith and horseshoer, on which trade solely he depends for the livelihood, support, and maintenance of himself and his family; that he was arrested at the city of Tacoma on the 17th day of December, 1903, by one Martin Garret, a constable for Tacoma precinct, and imprisoned and detained by him on a criminal warrant issued by one C. E. Griffin, a justice of the peace in and for Tacoma precinct, charging him with having practiced the trade of a master horseshoer for hire without complying with the provision of the act of March 11, 1901 relating to master horseshoers. The complaint on which the warrant of arrest was issued is as follows: 'That on or about the 22d day of August, A. D. 1903, in the county of Pierce, in the state of Washington, the above-named defendant, Ronald Aubry, then and there being, did unlawfully and knowingly violate and neglect to comply with the provisions of the act of the Legislature of the state of Washington entitled 'An act requiring horseshoers in the cities of the first, second and third classes of this state to pass an examination, and providing for a board of examiners in said cities, and providing a penalty for the violation of the provisions of this act, and repealing an act entitled 'An act requiring horseshoers to pass an examination, and providing for a board of examiners' approved March 13, 1899,' approved March 11, 1901, in this: That the said Ronald Aubry, then and there being, did unlawfully and knowingly practice horseshoeing as a master horseshoer for hire, in the city of Tacoma, said county and state, said city being a city of the first class, and without registering as such in accordance with the provisions of said act; contrary to form of the statute in such cases made and provided, and against the peace and dignity of the state of Washington. Wherefore said complainant prays that the said defendant may be arrested and dealt with according to law.' The main contention of relator's counsel is that the above enactment, under which petitioner was arrested and held in custody by respondent, is unconstitutional, and void under the provisions of both the state and federal Constitutions, in that it deprives relator of his liberty and property without due process of law, and denies to him the equal protection of the laws. The enactment in question is found in the Session Laws of Washington of 1901, p. 116, c. 67, and is entitled 'An act requiring horseshoers in cities of the first, second and third classes in this state to pass an examination, and providing for a board of examiners in said cities, and providing a penalty for the violation of the provisions of this act, and repealing an act entitled 'An act requiring horseshoers to pass an examination, and providing for a board of examiners,' approved March 13, 1899.' Sections 1 and 2 of this act provide for the registration of master and journey-man horseshoers in cities of the classes above named. Section 3 provides for the issuance of certificates to such horsehoers. Section 4 provides that: 'In every city affected by this act, there shall be appointed a board of examiners consisting of one veterinary and two master horseshoers and two journeyman horsehoers which shall be called 'horseshoers board of examiners,' who shall be residents of such city, and whose duty it shall be to carry out the provisions of this act, and shall have a power to fix a standard of examinations to test the qualifications of applicants. The members of said board shall be appointed by the mayor of such city, and the term of office shall be five (5) years, except that the members of said board first appointed shall hold office for the term of one, two, three, four and five years, as designated by the mayor and until their successors shall be duly appointed. The board of examiners shall have a regular place of meeting and shall hold sessions for the purpose of examining applicants desiring to practice horseshoeing as master or journeyman horseshoers in each city affected by this act, not later than three days after applications have been presented to them, and shall grant a certificate to any person showing himself qualified to practice, and the board shall receive as compensation a fee not exceeding ten ($10) dollars from each person examined. Three members of said board shall constitute a quorum.' Section 5 provides for the payment of a registration fee of 50 cents to the city treasurer of the city in which applicant may desire to register. Section 6 prescribes penalties for the violation of the provisions of the act. Article 1, § 3, of our state Constitution, provides that 'no person shall be deprived of life, liberty, or property without due process of law.' The fourteenth amendment of the Constitution of the United States contains a similar provision, and further prescribes that no state shall deny to any person within its jurisdiction the equal protection of the laws. The following quotation is taken from the brief of the counsel for petitioner, Aubry: 'We admit in the outset that the state has power to tax all trades and occupations, and that this power is only limited by the constitutional requirement that its exercise shall fall upon all citizens of like class and similar conditions equally. We deny that the Legislature can license for purposes purely of regulation and restraint or prohibition any of the usual, ordinary, and harmless occupations of life.'

Respondent's counsel argue that the act under consideration should be upheld as a legitimate and proper exercise of the police power of the state, and not upon the theory that this law was enacted for the purposes of raising revenue. They say 'That it is within the police power of the state to regulate such occupations or business enterprises as may, if unrestricted in their exercise, be injurious to the public health, safety, morals, or general welfare, even though they may be perfectly lawful.' State v. Carey, 4 Wash. 424, 30 P. 729, was a case where the defendant was prosecuted and convicted for practicing medicine without having first obtained a...