Ragan v. City of Seattle

• Decision Date: 21 September 1961
• Docket Number: No. 35761,35761
• Citation: 58 Wn.2d 779,364 P.2d 916
• Court: Washington Supreme Court
• Parties: L. D. RAGAN, Appellant, v. CITY OF SEATTLE, a Municipal Corporation, Respondent, Washington Music Merchants, Inc., Intervening Respondent.

Page 779

58 Wn.2d 779

364 P.2d 916

L. D. RAGAN, Appellant, v. CITY OF SEATTLE, a Municipal Corporation, Respondent Washington Music Merchants, Inc., Intervening Respondent.

No. 35761.

Supreme Court of Washington, En Banc.

Sept. 21, 1961.

Rehearing Denied Nov. 28, 1961.

Byron D. Coney, Seattle, for appellant.

William S. Howard, Seattle, for intervening respondent.

A. C. Van Soelen, Corporation Counsel, Robert Leslie, Asst. Corporation Counsel, Seattle, for respondent.

HILL, Judge.

We are here concerned with the constitutionality ¹ of an ordinance regulating the licensing of juke box operators.

The attack on the ordinance is made under the declaratory judgment act by L. D. Ragan, who owns a tavern in the city of Seattle and has a duly licensed juke box on his premises which he leases from a licensed Mechanical-Music-Machine operator. He desires to purchase and operate his own juke box in his tavern, but he cannot own a machine since he has no operator's license.

It is the city's refusal to issue the necessary license that irks him and results in this litigation, seeking to restrain the city's enforcement of its licensing ordinance (No. 87384) and to compel the issuance of a license to him. The city alleges, in its answer, that he is not eligible to secure such a license. Both parties moved for a summary judgment; the city's motion was granted, and the action was dismissed. Mr. Ragan has appealed.

The underlying thesis of appellant's argument is that the power to reasonably regulate is conceded, but that the issue is the reasonableness of the ordinance as a regulatory measure. If it is not reasonable, it is not constitutional. ²

Appellant points out the distinction between a business which can be prohibited and one which can only be regulated in these quotations from his brief.

'* * * if the business is judged to be one not subject to prohibition entirely, then limitation of it such as is attempted here is spurious and must be eliminated. To ask the question is perhaps to answer it--What is there so inherently corrupting and fraught with public peril about juke boxes that would justify a city in banning them completely? Juke boxes are, after all, not akin to saloons, boxing matches or cockfights, which in the interest of public morality may be legitimately prohibited. Essentially, a juke box is a mechanical contrivance for dispensing a commodity, just as a gum machine dispenses a commodity. And certainly, no one will maintain that music, in itself, however unesthetic, so corrupts as to justify its elimination. It will be granted that the municipality has a legitimate interest in regulating the volume of the music to prevent the occurrence of a nuisance and to forbid the playing of obscene selections, but this is the basis on which regulation as distinguished from prohibition is justified. * * *

'Prohibition being unsupportable, it follows that arbitary limitation of the extent of juke boxes must likewise fail. Ownership of juke boxes, subject to reasonable regulation as to volume and decency, must be open to all.'

Unfortunately, for appellant's position, we seem to have gone down what he seems to regard as the road to serfdom much further than he recognizes, and the 'unsupportable' prohibition is accepted and supported by respectable judicial authority. In Raymond v. Village of River Forest, 1953, 350 Ill.App. 80, 111 N.E.2d 848, the court held that an ordinance prohibiting the use of any coin-operated juke or music boxes was a valid exercise of the municipal police power. Much earlier it had been held that an ordinance prohibiting the playing of musical instruments, including juke boxes or other mechanical musical devices, in places where intoxicating liquor was offered for sale might be prohibited. Zinn v. City of Steelville, 1943, 351 Mo. 413, 173 S.W.2d 398. See also City of De Ridder v. Mangano, 1936, 186 La. 129, 171 So. 826.

Attention is also directed to the arguments of the intervenor, Washington Music Merchants, Inc. It says in its brief:

'The ownership and operation of juke boxes is such an activity [i. e., one that has a potentially detrimental influence on the public welfare]. It is a matter of common knowledge, of which the court may properly take judicial notice, that music, whether it is Ravel's Bolero, Erotica, rock-and-roll, Sinatra, or Presley, may have a stimulating, exciting, frenetic effect on its listeners which tends to break down normal inhibitions and to produce disturbances, disorders, and conduct contrary to the accepted mores of the community.

'The point is underlined when the music is played in places of public resort where intoxicants are served, as is the case with the appellant here.'

Disregarding the implication of judicial notice, this is a most refreshing recognition, from those most interested in the leasing of juke boxes, of the need for strict regulation wherever located and perhaps their prohibition where intoxicants are served.

An affidavit by the then chief of the detective division of the Seattle Police Department, submitted by the city, indicates that coercive tactics, involving threats of physical violence and interference with business, have been used by certain of the parties engaged in the leasing of machines. These are certainly conditions to be considered in determining the extent and the character of requisite regulations.

Consequently, we approach the consideration of the reasonableness of ordinance No. 87384 with the assumption that juke boxes may not only be regulated but prohibited in the public interest.

It is to be noted that the scope of our inquiry is limited to: Do the regulations have a reasonable and substantial relation to the accomplishment of some purpose fairly within the legitimate range or scope of the police power and not violate any direct or positive mandate of the constitution? Nebbia v. People of State of New York, 1933, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940; State v. Canyon Lumber Corporation, 1955, 46 Wash.2d 701, 284 P.2d 316; State v. Dexter, 1949, 32 Wash.2d 551, 202 P.2d 906, 13 A.L.R.2d 1081; Campbell v. State, 1942, 12 Wash.2d 459, 122 P.2d 458; Shea v. Olson, 1936, 185 Wash. 143, 53 P.2d 615, 111 A.L.R. 998; City of Seattle v. Proctor, 1935, 183 Wash. 293, 48 P.2d 238; State v. Dexter, 32 Wash.2d 551, 202 P. 906, 13 A.L.R.2d 1081. Is the question presented to the court by someone who has been, or can be, injuriously affected by the regulation? Galvin v. State Tax Commission, 1960, 56 Wash.2d 738, 355 P.2d 362; Port of Tacoma v. Taxpayers of the Port of Tacoma, 1959, 53 Wash.2d 734, 336 P.2d 872; State v. Canyon Lumber Corporation, supra; State ex rel. Campbell v. Case, 1935, 182 Wash. 334, 47 P.2d 24; Ajax v. Gregory, 1934, 177 Wash. 465, 32 P.2d 560.

A specific illustration of the latter issue is Mr. Ragan's complaint that under ordinance No. 87384 he would have to pay two hundred and fifty dollars annually for an operator's license to own the machine used in his tavern, but others in identical positions (if they had been licensed operators in 1957 and succeeding years) would only have to pay ten dollars ³ annually for such a license. There would seem to be possible merit to this complaint; but unless he is entitled to procure such a license, the amount of the fee is of academic interest only, and he has no cause for complaint. Hence, unless Mr. Ragan is entitled to have a license, we will not consider whether there is any justification for such a difference in license fees.

The particular provisions of the ordinance, here under attack, will be stated in narrative form, together with Mr. Ragan's objections thereto and the city's answer.

By the terms of the ordinance whether a person owns one juke box used in his own restaurant or tavern, or whether he owns a hundred and fifty ⁴ which he rents out to others, he need have only one Mechanical-Music-Machine operator's license. Each machine must have a Mechanical-Music-Machine sublicense attached to it. In this manner the city knows who the operators are, how many machines each operator owns, ⁵ and where they are located.

The number of licenses is limited by a provision that only one operator's license shall be issued for ten thousand residents of the city of Seattle, as shown by the last preceding state or Federal census. ⁶ There were, at the time the ordinance was passed in 1956, eighty-six licenses outstanding (reduced by October, 1959, to sixty-nine), so that if the 1960 ⁷ census figures are used, there would be no new licenses available unless fourteen of the licenses outstanding in October, 1959, were not renewed.

It is urged, by Mr. Ragan, that this freezes the licenses in the hands of those presently holding them, giving them a monopoly ⁸ in the matter of installation of juke boxes; but, at the same time, places no effective limitation on the number of juke boxes in the city as each operator could have up to one hundred and fifty machines, or a total of ten thousand three hundred and fifty machines, based on sixty-nine licenses; and that the privileged few, thus accorded a monopoly, may include the very ones whose coercive tactics were referred to in the affidavit of which mention has been made.

It is further urged that there are no standards by which to determine when a license shall be issued or to whom, and it is said:

'* * * the conclusion becomes inescapable that the ordinance limits licenses, not in the interest of reasonable regulation of the industry, but in the interest of the privileged few already in the business.'

Mr. Ragan further insists that the ordinance is not reasonable in that it makes no distinction between those who own and use their own machines in their own individual businesses and the 'true' operators who are in the business of leasing machines to others.

The city's position is that the ordinance (No. 87384) amends certain sections of the basic license code (ordinance No. 48022), which ordinance, as amended,...