Peterson v. Hagan

• Citation: 56 Wn.2d 48,351 P.2d 127
• Decision Date: 14 April 1960
• Docket Number: Nos. 35289-,TOP-HAT,s. 35289-
• Court: United States State Supreme Court of Washington
• Parties: Ivy PETERSON, doing business as Bellevue Sanatorium, Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J. O'Connell, as Attorney General of State of Washington, Appellants. KAUFFMAN BUICK COMPANY, Inc., Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J. O'Connell, as Attorney General of State of Washington, Appellants.CAFE, INC., Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J. O'Connell, as Attorney General of State of Washington, Appellants. David L. REIFF and Dora D. Reiff, his wife, doing business as Acme Personnel Service, Respondents, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J. O'Connell, as Attorney General of State of Washington, Appellants. to 35292.

Page 48

56 Wn.2d 48

351 P.2d 127

Ivy PETERSON, doing business as Bellevue Sanatorium, Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J.

O'Connell, as Attorney General of State

of Washington, Appellants.

KAUFFMAN BUICK COMPANY, Inc., Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J.

O'Connell, as Attorney General of State

of Washington, Appellants.

TOP-HAT CAFE, INC., Respondent, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J.

O'Connell, as Attorney General of State

of Washington, Appellants.

David L. REIFF and Dora D. Reiff, his wife, doing business

as Acme Personnel Service, Respondents, v. Jerry HAGAN, as Director of Department of Labor and Industries of State of Washington; and John J.

O'Connell, as Attorney General of State

of Washington, Appellants.

Nos. 35289-to 35292.

Supreme Court of Washington, En Banc.

April 14, 1960.

John J. O'Connell Atty. Gen., Herbert H. Fuller, Richard M. Montecucco, Asst. Attys. Gen., for appellants.

McMicken, Rupp & Schweppe, Seattle, for respondents.

William J. Millard, Jr., Seattle, amicus curiae.

FOSTER, Judge.

This appeal consolidates four separate actions brought under the declaratory judgment state (Laws of 1935, chapter 113; RCW 7.24), challenging the constitutionality of Laws of 1959, chapter 294. Although the prayer sought to enjoin the enforcement of the entire act (Laws of 1959, chapter 294), only § 3 and § 5 were held unconstitutional.

The complaint in each case is substantially the same except that the respondents Reiff operate an employment agency; the respondent Kauffman Buick Company sells automobiles at retail; the respondent Peterson, doing business as Bellevue Sanatorium, operates a rest home for elderly persons and invalids; and respondent Top-Hat Cafe, Incorporated, operates a restaurant in Spokane. Each respondent alleged that no interestate commerce was involved and that, consequently, the Federal Fair Labor Standards Act (29 U.S.C.A. § 201 et seq.), was not applicable. This the appellants admit, both actually ¹ and by their demurrer.

The demurrer of the appellants to each complaint was overruled, and the judgment in each case recites that the defendants, who are appellants here, declined to answer. The matter was, therefore, determined upon the allegations of the complaints which contain the only factual matter here.

The trial court held that § 3 and § 5 of Laws of 1959, chapter 294, were unconstitutional, but that, because of the severability declaration of § 13, the remainder of the act was not affected. Our examination is likewise so limited.

While the appellants make five separate assignments of error, ² the attorney general declares that such assignments involve only two questions, that is, the constitutionality of § 3 and the constitutionality of § 5. No other or additional question is raised or argued.

Each of the complaints alleged that the whole act contravened the due process clauses of the Fourteenth Amendment to the Federal constitution and Art. I, § 3, of the state constitution. Each of the respondents made the further claim that the entire act contravened the equal protection clause of the Fourteenth Amendment to the Federal constitution and Art. I, § 12 of the state constitution. The sweeping contentions were rejected by the superior court which decided only (1) that Laws of 1959, chapter 294, § 3, would, if enforced, violate the due process clause of the Fourteenth Amendment to the Federal constitution and Art. I, § 3, of the state constitution and was, therefore, void; and (2) that Laws of 1959, chapter 294, § 5, which authorizes the director of the department of labor and industries to promulgate rules, was an attempt to unlawfully delegate legisative power, and was void because it was in violation of the Seventh Amendment to the state constitution. Moreover, the enforcement of both sections was enjoined.

Here the respondents again urge propositions rejected by the superior court, and the right to do so is conceded by appellants. Specifically, it is claimed that § 3 is void because it is contrary to the equal protection provisions of the state and Federal constitutions.

Because the respondents did not cross-appeal, appellants object to the respondents' additional arguments against the validity of the two sections, namely, that the proviso at the end of § 12 exempting persons subject to the Federal Fair Labor Standards Act results in an unconstitutional discrimination in favor of employees in interstate commerce, which renders § 3 void, and that the exemptions contained in § 1(5) excluding a number of employments from the operation of § 3 constitute a further unconstitutional discrimination against them which renders § 3 void.

We think these objections without force because the respondents are not seeking any additional relief, but are only advancing additional arguments in support of the judgment.

A successful litigant need not cross-appeal in order to urge any additional reasons in support of the judgment, even though rejected by the trial court, but no additional relief will be granted on appeal in the absence of a cross-appeal. Burt v. Heikkala, 44 Wash.2d 52, 265 P.2d 280; McUne v. Fuqua, 42 Wash.2d 65, 253 P.2d 632; State ex rel. Public Utility Dist. No. 1, etc. v. Schwab, 40 Wash.2d 814, 246 P.2d 1081; Latimer v. Western Machinery Exchange, 40 Wash.2d 155, 241 P.2d 923; Wilkins Ditch Co. v. Drake, 115 Wash. 603, 197 P. 769. The same rule prevails in the United States supreme court. Helvering v. Lerner Stores Corp., 314 U.S. 463, 62 S.Ct. 341, 86 L.Ed. 343.

The attorney general argues that the equal protection clause and the due process clause of the Fourteenth Amendment to the United States constitution and Art. I, § 12, of the state constitution do not apply to legislation enacted under the police power. This court itself has used such broad language in Frach v. Schoettler, 46 Wash.2d 281, 280 P.2d 1038; Shea v. Olson, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998; State ex rel. Lane v. Fleming, 129 Wash. 646, 225 P. 647, 34 A.L.R. 500; Fisher Flouring Mills Co. v. Brown, 109 Wash. 680, 187 P. 399. But what was decided in each of those cases is that the legislation then under challenge was a proper exercise of the police power.

In considering such statements made in the course of judicial reasoning, one must remember that general expressions in every opinion are to be confined to the facts then before the court and are to be limited in their relation to the case then decided and to the points actually involved. Cohens v. Virginia, 6 Wheat. 264, 19 U.S. 264, 5 L.Ed. 257; State ex rel. Lemon v. Langlie, 45 Wash.2d 82, 273 P.2d 464; In re Levas' Estate, 33 Wash.2d 530, 206 P.2d 482; Gilmour v. Longmire, 10 Wash.2d 511, 117 P.2d 187; State ex rel. Todd v. Yelle, 7 Wash.2d 443, 110 P.2d 162; Ingham v. Wm. P. Harper & Son, 71 Wash. 286, 128 P. 675.

We reject flatly the argument that the due process and equal protection clauses of the Federal and state constitutions do not apply to statutes enacted in the exercise of the police power. Otherwise, the result would be a police state, and the legislative branch of the government would be omnipotent.

The United States supreme court specifically decided that police regulations were subject to the equal protection clause of the Fourteenth Amendment in Atchison, Topeka & Santa Fe R. Co. v. Vosburg, 238 U.S. 56, 35 S.Ct. 675, 676, 59 L.Ed. 1199. The reasons for that conclusion were stated as follows:

'* * * But we cannot at all agree that a police regulation is not, like any other law, subject to the 'equal protection' clause of the 14th Amendment. Nothing to that effect was held or intimated in any of the cases referred to. The constitutional guaranty entitles all persons and corporations within the jurisdiction of the state to the protection of equal laws, in this as in other departments of legislation. It does not prevent classification, but does require that classification shall be reasonable, not arbitrary, and that it shall rest upon distinctions having a fair and substantial relation to the object sought to be accomplished by the legislation. * * * '

In 1957, the supreme court of West Virginia in State of West Virginia v. Memorial Gardens Development Corp., W.Va., 101 S.E.2d 425, 429, 68 A.L.R.2d 1233, held:

'All legislation under the police power must be within the constitutional inhibitions. Milkint v. McNeeley, 113 W.Va. 804, 169 S.E. 790; Eubank v. City of Richmond, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156. * * *'

We said the same thing in Mitchell v. Consolidated School District, 17 Wash.2d 61, 135 P.2d 79, 80, 146 A.L.R. 612, as follows:

'* * * the police power--broad and comprehensive as it is--may not be exercised in contravention of plain and unambiguous constitutional inhibitions. 2 Cooley's Constitutional Limitations (8th ed.), p. 1229; Jacobson v. Massachusetts, 197 U.S. 11, 25, 25 S.Ct. 358, 49 L.Ed. 643; State ex rel. Richey v. Smith, 42 Wash. 237, 84 P. 851, 5 L.R.A.,N.S., 674; Wright v. Hart, 182 N.Y. 330, 75 N.E. 404, 2 L.R.A.,N.S., 338.'

See, also Ralph v. City of Wenatchee, 34 Wash.2d 638, 209 P.2d 270.

There is no relationship between the minimum wage act for women and children (Laws of 1913, chapter 174, p. 602 (RCW 49.12)), the constitutionality of which was sustained in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, and the act in question, Laws of 1959, chapter 294, p. 1411. But since that decision and United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609, sustaining the constitutionality of the Federal wages and hours act, the right of the legislature to regulate hours and wages is not open to serious question. ³

We start our examination of the proposition of whether § 3 of the act is a valid exercise of the...