Patton v. City of Bellingham

• Decision Date: 06 December 1934
• Docket Number: 25022.
• Citation: Patton v. City of Bellingham, 179 Wash. 566, 38 P.2d 364 (Wash. 1934)
• Parties: PATTON v. CITY OF BELLINGHAM et al.
• Court: Washington Supreme Court

38 P.2d 364

179 Wash. 566

PATTON v. CITY OF BELLINGHAM et al.

No. 25022.

Supreme Court of Washington, En Banc.

December 6, 1934

Appeal from Superior Court, Whatcom County; Edwin Gruber, Judge.

Suit by Morris B. Patton against the City of Bellingham and others. From an adverse decree, plaintiff appeals.

Reversed with direction.

Harrison McAdams, of Bellingham, for appellant.

Hobart S. Dawson and Tim Healy, both of Bellingham, for respondents.

STEINERT Justice.

This action was brought to test the constitutionality and validity of a statute and an ordinance, respectively, restricting the hours of opening and closing barber shops. Upon the commencement of the action, an order temporarily restraining enforcement of the ordinance was obtained. A subsequent trial Before the court resulted in findings and conclusions, based upon which a decree was entered dissolving the temporary restraining order and denying any relief under the complaint. This appeal followed.

The statute involved reads as follows: 'The governing body of any city of the first, second, third and fourth class in the state shall have power to regulate and fix by ordinance the hours and time of opening and closing of barber shops on week days (and) to provide that any violation of such ordinance shall be a misdemeanor, and to fix and enforce penalties within the limit of the jurisdiction of such cities for such violation.' Chapter 120, p. 448, Laws of 1933.

Bellingham is a city of the first class. Pursuant to the passage of the above act, the city, through its council and mayor, enacted Ordinance No. 5363 (amending Ordinance No. 5333), which provided, among other things, that it should be unlawful to open a barber shop earlier than 8 o'clock a. m. or to close the same later than 6 o'clock p. m. on weekdays other than Saturdays, or to close it later than 7 o'clock p. m. on Saturdays or days preceding a holiday. The ordinance further provided for inspection of barber shops by a sanitary inspection board, or any of its members, for the purpose of ascertaining their sanitary condition. By Ordinance No. 5333, violation of the provisions relating to opening and closing, or refusal to permit inspection, subjected the person convicted thereof to a fine or imprisonment, or both.

Appellant owns and operates a barber shop in the Henry Hotel building in Bellingham. He himself works as a barber in the shop, and also employs, under oral contract, an additional barber therein. For several years appellant has kept his shop open from 8 a. m. to 8 p. m. on all weekdays except Saturdays, and from 8 a. m. to 9 p. m. on Saturdays and days preceding holidays. His employee, however, works only from 10 a. m. to closing time, with an hour off for lunch and a half hour off for dinner, making his total working time eight and one-half hours on ordinary days and nine and one-half hours on Saturdays and such days as precede holidays.

Shops in Bellingham, under the union rule, are open from 8 a. m. to 6 p. m. on ordinary days and from 8 a. m. to 7 p. m. on Saturdays and days preceding holidays. The actual working time per day of appellant's employee is a half hour less than that of employees in union shops.

Appellant's shop is patronized by all classes of customers, including traveling salesmen, highway workers, road construction employees, mill workers, tourists, clerks, professional men and farmers, many of whom cannot, or at any rate do not, have their barber work done until after 6 or 7 o'clock in the evening. So far as appellant is concerned, at least one-third of his business is done after the closing hours specified in the ordinance.

Evidence was introduced by both parties relative to the effect upon the barber business of keeping shops open beyond the time limited by the ordinance. The evidence was necessarily expressive of the opinion of the various witnesses, and naturally their opinions differed materially. The court made findings to the effect that the earnings of barbers in Bellingham did not, at that time, exceed from six to fifteen dollars a week; that extending the opening and closing hours generally throughout the city would not materially increase their revenue; that, if a few shops remained open after a fixed hour, all others would be required to do likewise, thus necessitating the same employees to be kept in attendance the entire day and thereby increasing their hours of labor; that it was impracticable and unworkable to operate barber shops on a split-shift system; that long working hours, with the attendant fatigue decreased the efficiency and injured the health of the barber, and therefore led to unsatisfactory and unsanitary conditions and inefficient workmanship and methods; and that the only practical way of limiting the hours of labor of the barber was by limiting the hours during which barber shops should remain open. As already stated, the evidence on which these findings were based was opinionative in nature. Obviously, the findings did not, in their entirety constitute a determination of existing facts, but were, in part at least, a prognostication by the court itself of what would be the probable result of the continuance of existing conditions. We mention this here and now, because in deciding this case we do not take issue with the trial court in that which is intrinsically factual, but only in that which is a matter deduction.

Appellant, by his assignments of error, makes the contention that the statute and ordinance in question violate the following constitutional provisions: (a) Article 1, § 10, of the Federal Constitution, and article 1, § 23, of the state Constitution, relating to the impairment of contracts; (b) Amendment 14, § 1, of the Federal Constitution, and article 1, §§ 3 and 12, of the state Constitution, relating to equal protection, abridgement of privileges, and due process of law.

In presenting this case to us on appeal, both parties go upon the theory that in the enactment of, and in the attempt to enforce, the ordinance in question, the city was proceeding under its police powers. Accepting that theory, it becomes unnecessary for us to consider or pass upon the constitutionality of the statute, for whatever authority the city has in respect of its police powers it has by virtue of article 11, § 11, of our Constitution, independent of any statutory grant. Commenting upon that provision of the Constitution, we said in Detamore v. Hindley, 83 Wash. 322, 326, 145 P. 462, 463: '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, the regulation reasonable and consistent with the general laws.'

The following cases are to the same effect: Sherman Clay & Co. v. Brown, 142 Wash. 37, 252 P. 137; Seattle v. Ford, 144 Wash. 107, 257 P. 243; Seattle v. Gervasi, 144 Wash. 429, 258 P. 328; Bungalow Amusement Co. v. Seattle, 148 Wash. 485, 269 P. 1043, 60 A. L. R. 166; Brennan v. City of Seattle, 151 Wash. 665, 276 P. 886. It is not contended, nor do we apprehend that it could be, that the purpose of the statute was to confer authority upon the city to prescribe regulations other than such as are 'reasonable and consistent with the general laws.'

It will be observed that the Legislature has not attempted, by the statute, directly to prescribe or enforce any such regulations as are set forth in the ordinance. Whether the Legislature could legally have done so is a question that it is not necessary to decide here.

Confining ourselves, then, to the ordinance and its effect, we have no hesitancy in saying, first, that the provisions found therein, with reference to the inspection of barber shops, constitute a valid exercise of the city's police power, and, as such, were reasonable and proper.

In State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am. St. Rep. 893, there was involved the constitutionality of a statute which made it unlawful for any person either to follow the occupation of barbering without having first obtained a certificate of registration, or, following it, to fail to heed certain sanitary requirements. It was said in the course of the opinion that the Legislature may authorize cities and towns to regulate the occupation of barbering therein, or to regulate any occupation affecting the health and morals of the community.

In State v. Walker, 48 Wash. 8, 92 P. 775, 776, 15 Ann. Cas. 257, the same statute was again questioned, and the court in the course of its opinion remarked that the occupation of barbering fell within that class of trades, professions, or callings which may be regulated by law 'for public health, comfort, and safety,' and not within that class which may not be so regulated without depriving a citizen of his natural rights and privileges guaranteed him by fundamental law. In the same case, however, it was held that the provision requiring the applicant to have 'studied the trade for two years as an apprentice under or as a qualified and practicing barber in this state or other states' was unreasonable and arbitrary, and therefore void. It will be observed that, while these two cases hold that the Legislature may grant police powers to cities, later cases, already cited herein, affirm the principle that cities have such powers, fully and amply, by virtue of the Constitution, and independent of any grant by the Legislature.

The grant of police power to a city carries with it the necessary implication that its exercise must be reasonable. Detamore v. Hindley, 83 Wash. 322, 145 P. 462; Seattle v. Ford, 144 Wash. 107, 257 P. 243; State v. Spiller, 146 Wash. 180, 262 P. 128; 2 Dillon on Municipal Corporations (2d Ed.) § 589; 43 C.J. pp 213, 228...