Lenci v. City of Seattle

• Decision Date: 30 January 1964
• Docket Number: No. 36589,36589
• Citation: 63 Wn.2d 664,388 P.2d 926
• Court: Washington Supreme Court
• Parties: Frank LENCI, doing business as Frank's Auto Wrecking Co., John Sittner, doing business as Sittner's Auto Wrecking, John Ohner, doing business as Farwest Auto Wrecking, Nelson-Magnuson, doing business as Southend Auto Wrecking, Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

Page 664

63 Wn.2d 664

388 P.2d 926

Frank LENCI, doing business as Frank's Auto Wrecking Co., John Sittner, doing business as Sittner's Auto Wrecking, John Ohner, doing business as Farwest Auto Wrecking, Nelson-Magnuson, doing business as Southend Auto Wrecking, Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

No. 36589.

Supreme Court of Washington, En Banc.

Jan. 30, 1964.

Rehearing Denied March 19, 1964.

A. L. Newbould, Corp. Counsel Gordon F. Crandall, Asst. Corp. Counsel, Seattle, for appellant.

Michael R. Donovan, Bellevue, for respondents.

HAMILTON, Judge.

Plaintiffs (respondents), owners of four motor vehicle wrecking yards in Seattle, instituted a declaratory judgment proceeding by which they challenged the constitutionality of § 338 Seattle Ordinance No. 90316. ¹ Section 338, in pertinent part, provides:

'The activities of a Motor Vehicle Wrecker shall be conducted entirely within an enclosed building, or on premises enclosed by a view obscuring, firm and substantial fence or a solid wall, at least eight (8) fest high, and no motor vehicle or part of a motor vehicle acquired or purchased in the course of such business shall be parked, stored or displayed on the outside of such building, fence or wall. Any such fence or wall shall be maintained in firm, substantial condition and shall have not more than one (1) opening upon any public way. Such opening shall be not more than twenty (20) feet wide, and shall be equipped with a substantial, solid, tight gate or door of the same height as the fence or wall. Such gate or door shall swing inwardly, or shall be parallel to the fence or wall and shall slide horizontally, and shall be kept securely closed when the establishment is not open for business.' (Italics ours.)

Plaintiffs attacked the italicized portions of § 338 upon the grounds that such requirements are in conflict with state law, indefinite, discriminatory, and unreasonable.

The trial court, from the evidence presented, found, in essence, that the disputed provisions imposed private burdens outweighing public benefits, and concluded the requirements to be unreasonable and unconstitutional. The city of Seattle appeals.

In support of the trial court's findings and conclusions, plaintiffs point to evidence in the record revealing their compliance with state fencing requirements, the size of their wrecking yards (ranging from 1,500 by 300 feet to 200 by 300 feet), the cost of installing view obscuring fence (ranging from $2.50 to $8 per lineal foot), potential loss of business (15 to 25 per cent) resulting from obscuring their merchandise from passerby view, their location in an industrial zone, and the restriction of the ordinance requirements to the auto wrecking business.

On the other hand, the city points to evidence in the record indicating a particular susceptibility of open auto wrecking yards and their merchandise to thefts, the rising incidence of such offenses, particularly by juveniles, the difficulties of police patrolling, the desirability of view obscuring fences as a crime preventative measure and an aid to apprehension, the existence of a zoning ordinance, which is not challenged requiring similar fencing of wrecking yards within 500 feet of residential zones, and to traffic safety and fire control features in the access limitations.

At the outset, it is to be noted that municipalities derive their authority to enact ordinances in furtherance of the public safety, morals, health, and welfare from Const. Art. 11, § 11, which provides:

'Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.'

Of this constitutional grant of authority we, in Detamore v. Hindley, 83 Wash. 322, 326, 145 P. 462, have said:

'This is a direct delegation of the police power as ample within its limits as that possessed by the Legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws. * * *'

An ordinance to be void for unreasonableness must be clearly and plainly unreasonable. Seattle v. Hurst, 50 Wash. 424, 97 P. 454, 18 L.R.A., N.S., 169. The burden of establishing the invalidity of an ordinance rests heavily upon the party challenging its constitutionality. Letterman v. Tacoma, 53 Wash.2d 294, 333 P.2d 650. Every presumption will be in favor of constitutionality. Winkenwerder v. Yakima, 52 Wash.2d 617, 328 P.2d 873. And, if a state of facts justifying the ordinance can reasonably be conceived to exist, such facts must be presumed to exist and the ordinance passed in conformity therewith. Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998. These rules are more than mere rules of judicial convenience. They mark the line of demarcation between legislative and judicial functions.

With the foregoing in mind, we turn first to the arguments revolving about the compatability of the challenged portions of Ordinance No. 90316 with existing state statutes and regulations.

RCW 46.80 provides for state licensing of motor vehicle wreckers. The portions thereof pertinent to the present inquiry provide:

'* * * The words 'established place of business,' whenever used in this chapter, shall mean a building or enclosure which the owner occupies either continuously or at regular periods and where his books and records are kept and business is transacted and which must conform with the zoning regulation of municipalities.' RCW 46.80.010.

'It shall be unlawful for any motor vehicle wrecker to keep any motor vehicle or any integral part thereof in any place other than the established place of business, designated in the certificate issued by the director of licenses, without permission of the director, and all premises containing such motor vehicles or parts thereof shall be enclosed by a wall, fence or wire enclosure.' RCW 46.80.130.

'The director of licenses is hereby authorized to promulgate and adopt reasonable rules and regulations not in conflict with provisions hereof for the proper operation and enforcement of this chapter.' RCW 46.80.140.

'Any municipality or political subdivision of this state which now has or subsequently makes provision for the regulation of automobile wreckers shall comply strictly with the provisions of this chapter.' RCW 46.80.160.

The remaining portions of RCW 46.80 deal with licensing, bonding, vehicle title record keeping and reporting, inspection, improper practices, and penalties.

Pursuant to RCW 46.80.140, supra, the director of licenses promulgated, among others, the following rule:

'Established place of business is defined as 'A building or enclosure which the owner occupies either continuously or at regular periods and where his books and records are kept and business is transacted'. All fence enclosures must be six (6) feet high, composed of at least six (6) strands of barb wire uniformly spaced, or wire mesh, with posts twelve (12) feet apart, or a solid fence of boards or metal subject to the zoning regulations of municipalities. Failure to comply with these provisions constitutes a 'Gross Misdemeanor'.' Exhibit No. 25.

It is plaintiffs' contention that, except for appropriate zoning regulations, the state has pre-empted the field of motor vehicle wrecking yard regulation and, if not, the 8-foot view obscuring fence provision of § 338 is in conflict with the state statute and administrative requirements in that such provision prohibits that which the statute and regulation permits. It is the city's contention that the legislature did not, in enacting RCW 46.80, intend to occupy the field covered by § 338, and that the questioned provisions are consistent with and complementary to the state statute and administrative regulations.

We have stated that the plenary police power in regulatory matters accorded municipalities by Const. Art. 11, § 11, ceases when the state enacts a general law upon the particular subject, unless there is room for concurrent jurisdiction. Seattle Elec. Co. v. Seattle, 78 Wash. 203, 138 P. 892; Seattle v. Rothweiler, 101 Wash. 680, 172 P. 825; Pacific Tel. & Tel. Co. v. Seattle, 172 Wash. 649, 21 P.2d 721, affirmed 291 U.S. 300, 54 S.Ct. 383, 78 L.Ed. 810; Yakima v. Gorham, 200 Wash. 564, 94 P.2d 180; Kimmel v. Spokane, 7 Wash.2d 372, 109 P.2d 1069.

Whether there be room for the exercise of concurrent jurisdiction in a given instance necessarily depends upon the legislative intent to be derived from an analysis of the statute involved. In re Iverson, 199 Cal. 582, 250 P. 681; 1 Antieau, Municipal Corporation Law § 5.22, p. 287. If the legislature is silent as to its intent to occupy a given field resort must be had to the purposes of the legislative enactment and to the facts and circumstances upon which the enactment was intended to operate. If, however, the legislature affirmatively expresses its intent, either to occupy the field or to accord concurrent jurisdiction, there is no room for doubt.

A full reading of RCW 46.80 reveals that in its enactment the legislature was primarily concerned with maintaining the integrity of the state system of motor vehicle title and registration. At best, it was only incidentally concerned with the location and characteristics of the premises occupied by motor vehicle wrecking yards. The legislature, in both RCW 46.80.010 and 46.80.160, affirmatively recognized the probability and, inferentially, the desirability of local regulation in the areas governed by § 338.

We hold that the state did not by RCW 46.80 pre-empt the field of motor vehicle wrecking yard regulation covered by the challenged portions of Ordinance No. 90316.

The next question, then, is whether there be a conflict between RCW 46.80.130, requiring a wrecking yard to be enclosed 'by a wall, fence or wire enclosure,' the administrative rule, supra, specifying ...