Linsler v. Booth Undertaking Co.

• Citation: 206 P. 976,120 Wash. 177
• Decision Date: 13 May 1922
• Docket Number: 16975.
• Parties: LINSLER et al. v. BOOTH UNDERTAKING CO.
• Court: United States State Supreme Court of Washington

206 P. 976

120 Wash. 177

LINSLER et al. v. BOOTH UNDERTAKING CO.

No. 16975.

Supreme Court of Washington

May 13, 1922

Department 2.

Appeal from Superior Court, King County; Olis W. Brinker, Judge.

Action by Lorenz Linsler and others against the Booth Undertaking Company, a corporation. Judgment of dismissal, and plaintiffs appeal. Affirmed.

Henry W. Pennock and James R. Gates, both of Seattle, for appellants.

Reynolds Ballinger & Hutson, of Seattle, for respondent.

MAIN J.

The purpose of this action was to restrain the defendant from conducting an undertaking establishment, claiming that it constituted a nuisance. The trial resulted in a judgment of dismissal, from which the plaintiffs appeal.

The respondent is a corporation and is engaged in the undertaking business upon the premises known as 1422 Bellview avenue, in the city of Seattle. The appellants are the owners of adjacent or nearby property and a school district. The undertaking establishment is within the district where it may be located under an ordinance of the city. The business is conducted on Bellview avenue and is in the first block south of Pike street, which is a business street. Between the business house on the southeast corner of the intersection of Pike street and Bellview avenue and the undertaking establishment there is one residence. To the south the property is used for residence purposes. The appellants, Linsler, own property adjacent to the undertaking place on the south and occupy it as a residence. The street at the rear of respondent's property is a narrow street and known as Crawford place. The Summit School, one of the large grade schools of the city, is on the east side of this street. The ordinance defining the limits within which undertaking establishments may be conducted fixes the south limit thereof as coinciding with the south line of the respondent's property upon which the business is being conducted, and, as already stated, the business is within the limits prescribed by the ordinance. Upon the trial much of the evidence which was offered by the appellants was rejected and offers of proof were made. In considering the case, the offers of proof will be considered as evidence in the case. There is no evidence that the business was conducted in a negligent or improper manner. The respondent in objecting to the testimony was careful to state that its objection did not go to any evidence which showed or tended to show negligent or improper operation of the business.

The undertaking business, it will be admitted, depreciates the value of nearby property for residence purposes, and also brings into the homes of those living nearby an element of discomfort and lack of repose such as would have a depressing effect upon the mind of the average person.

The question is whether or not the existence of the undertaking establishment at the place mentioned constitutes a nuisance. That such a business is not a nuisance per se is well established, and no contention here is made otherwise. The ordinance referred to was manifestly passed in the exercise of the police power given to the city by the Constitution and the statutes in aid thereof. Section 11 of article 11 of the Constitution of this state provides that any city may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws. This is a direct delegation of the police power as amply within its limits as that possessed by the Legislature. So long as the subject-matter is local and the regulations reasonable and consistent with general laws, it is not necessary that it be supported by legislative sanction. In Detamore v. Hindley, 83 Wash. 322, 145 P. 462, it was said:

'The state Constitution, § 11, of article 11, 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.' 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.'

It is well settled that property is held subject to the exercise of the police power and that the provisions of the Constitution forbidding laws, the effect of which is to take or damage property, have no application in such cases. In Odd Fellows C. Ass'n. v. City of San Francisco, 140 Cal. 226, 73 P. 987, it was said:

'It is settled law that all property is held subject to the exercise of police power, and that the provisions of the Constitution forbidding laws impairing the obligations of contracts, and declaring that property shall not be taken without due process of law, have no application in such cases. [Citing numerous authorities.]'

It thus appears that the undertaking establishment here in question was authorized by an ordinance, which ordinance is...