Sherman Clay & Co. v. Brown

• Decision Date: 16 December 1924
• Docket Number: 18880.
• Citation: 231 P. 166,131 Wash. 679
• Court: Washington Supreme Court
• Parties: SHERMAN CLAY & CO. v. BROWN, Mayor, et al.

231 P. 166

131 Wash. 679

SHERMAN CLAY & CO. v. BROWN, Mayor, et al.

No. 18880.

Supreme Court of Washington

December 16, 1924

Department 2.

Appeal from Superior Court, King County; Griffiths, Judge.

Suit by Sherman Clay & Co., a corporation, and others, against Edwin J. Brown, as Mayor of City of Seattle, and others. From a judgment sustaining a demurrer, plaintiffs appeal. Reversed.

Roberts & Skeel and J. J. Geary, all of Seattle, for appellants.

Thomas J. L. Kennedy and Ray Dumett, both of Seattle, for respondents.

MACKINTOSH J.

The council of the city of Seattle passed an ordinance for the regulation of secondhand dealers. The first section of the ordinance provides that it shall be deemed an exercise of the police power. The third section defines secondhand dealers as follows:

'Any person who, within the city of Seattle, shall as a business engage in the purchase, sale, trade, barter or exchange of secondhand goods, or any person who shall keep any store, shop, room, or place where secondhand goods of any kind or description are bought, sold, traded, bartered exchange or received is hereby defined to be a secondhand dealer within the meaning of this ordinance.'

The fourth section provides for the procuring of a license, and the sixth is as follows:

'Every secondhand dealer shall keep a book in which he shall at the time of purchase of any secondhand goods enter in the English language, written in ink, a full and accurate description of such goods so bought, together with the name age, signature and residence of the vendor, and if the vendor shall be a minor, a statement of that fact, also the amount paid and date and hour of the purchase, and said book as well as every article or thing purchased shall at all reasonable times be open to inspection by the Chief of Police or any police officer of the city of Seattle. Secondhand goods of any kind and description bought or received by any secondhand dealer must be held at least ten (10) days before they are sold or offered for sale, except when the goods bought or received consist of stoves, furniture, or the total contents of any room or house bought on the premises where such goods have been in use.'

Section 7:

'Whenever any secondhand dealer shall purchase stoves, furniture of the entire household, effects of any house or of any household, it shall be deemed a sufficient compliance with the provisions of the preceding section, to enter in his book the name of the street, the number of the house and the name of the vendor, and a general description of the property purchased.'

Section 8 provides that every secondhand dealer shall make out and deliver to the chief of police before noon of each day a copy of the transactions on his books relating to secondhand transactions of the previous day. Section 10 provides that a violation of the ordinance shall constitute a misdemeanor, and section 11 provides for the revocation of the license. This ordinance is purely a regulatory ordinance, passed in the exercise of the police power and is in no wise a revenue measure. The appellant by this action seeks to have the ordinance declared invalid and inoperative as to it. The complaint, to which a demurrer was sustained, which brings the action here on appeal, alleges that the appellant for many years had been engaged in the piano, phonograph, and general musical business, and has never been what is generally known as a secondhand dealer; it has never kept a store or place where secondhand goods were bought and sold, but that in its business of selling pianos and phonographs it occasionally receives a piano or phonograph in exchange for a new one, but that this exchange business is confined solely to pianos and phonographs which are taken directly from the homes of the purchasers and replaced there by a new article; that the dealings are with persons of good standing, and that always a bill of sale is taken by the appellant for the used piano or phonograph, and that these exchanges constitute a very small portion of its general business; that no secondhand article is ever purchased, and none is ever sold from the appellant's store, but that these articles are otherwise disposed of.

The ordinance is attacked on more than one ground, but in this opinion we will consider only that attack which is made on the ground of its discrimination. The ordinance may be said, by section 3, generally to embrace all persons who deal in anyway with secondhand property. It is apparent that this regulatory ordinance was passed with the purpose of preventing or at least keeping check of the disposition of stolen goods or otherwise improperly acquired personal property. It is common knowledge that when the way is made difficult for the thief and embezzler to find a ready market for the fruits of his endeavor, that to a large extent his activities are curbed, and sections 6 and 7 provide the means by which easy knowledge may be obtained by the police authorities of the location of goods improperly disposed of. For the full enforcement of its manifest purpose, the act provides that secondhand dealers shall not dispose of the goods bought or received by them for a period of 10 days after the purchase or receipt. This, of course, is to allow an opportunity for the police department to make a full investigation of any transaction reported to them which may have occasioned their suspicion. But this provision, by section 7, is made not applicable to stoves, furniture, or the total contents of any room or house. Why this distinction? There appears no reasonable ground upon which it can be defended. Certainly, under the allegations of the complaint, there appears to be no distinction in fact between appellant's receiving pianos and phonographs and the receipt by some one else of a stove or a chair. Allowing purchasers or receivers of stoves or chairs to dispose of them immediately, and compel the purchaser or receiver of any other personal property to tie up so much of his capital as he may have invested in such property for a period of 10 days is abhorrent to the most primitive idea of fairness and equality. Such a provision is contrary to section 12, article 1, of the state Constitution, prohibiting the granting of privileges or immunities except upon the same terms.

In Re Camp, 38 Wash. 393, 80 P. 547, a peddler's license was involved which prohibited all, except farmers disposing of produce grown by themselves, from peddling fruits, vegetables, etc., within the city limits, and that act was held unconstitutional, the court saying:

'It has been held that a classification may be valid if the object of the legislation is revenue, and invalid if the object is regulation only. * * * Even if it should be conceded that such a classification for the purposes of revenue and taxation may be made, still, since there is no element of taxation involved, we think the classification made by the ordinance grants special privileges, in violation of art. 1, § 12, of the state Constitution.'

In Spokane v. Macho, 51 Wash. 322, 98 P. 755, 21 L. R. A. (N. S.) 263, 130 Am. St. Rep. 1100, the ordinance was one regulating employment agencies. The court there said:

'It was frankly admitted in the argument of this case that § 7 was enacted for the purpose of regulating the business of employment agencies. When exercising its power to regulate a business, the municipality may classify subjects of legislation, but the law must treat alike all of a class to which it applies, and must bring within its classification all who are similarly situated or under the same condition. From the very nature of things, there can be no dissimilarity of condition or situation between the employment agent who indulges in a false pretense and any other person who resorts to deceit or fraudulent representations to accomplish a wayward purpose.'

This case emphasizes a situation which is present in the case at bar, and it might be, as we will see from a citation of subsequent cases, that in the exercise of its regulatory powers, the city might pass an ordinance creating a certain class of persons subject to that regulation, and excluding others from the operation of it, but when, as in the case at bar, it makes a general classification which covers all persons, say, dealing in secondhand goods, it cannot thereafter, without being guilty of discrimination, exempt a part of those of the general class covered by the ordinance from the operation of such ordinance. In other words, as noted in the Macho Case, supra, what is attempted to be done here is to exempt a class within a class. Certain kinds of secondhand dealers are allowed certain privileges and immunities not granted to the balance, and this without any reasonable distinction between the characters of their businesses.

In State v. Robinson Co., 84 Wash. 246, 146 P. 628, the court was concerned with an act requiring the recording of the sale of concentrated commercial feed stuffs, and, in holding that act unconstitutional, we said:

'We are satisfied that, under the rule in these cases, the act under consideration is clearly in violation of the constitutional provision quoted, because it authorizes cereal and flour mills to sell mixed and unmixed feeding stuffs, while other persons selling the same feeding stuffs are required to comply with the provisions of the act. It is plain, we think, that § 13. * * * for that reason, renders the whole act void.'

In McDaniels v. J. J. Connelly Shoe Co., 30 Wash. 549, 71 P. 37, 60 L. R. A. 947, 94 Am. St. Rep. 889, it was held that an act prohibiting retail merchants from transferring their stock of merchandise in bulk, without making a provision for the payment of creditors, was not class legislation merely because it did not apply to all...