State v. Fleming

• Decision Date: 12 May 1924
• Docket Number: 18548.
• Citation: 129 Wash. 646,225 P. 647
• Court: Washington Supreme Court
• Parties: STATE ex rel. LANE v. FLEMING et al., City Com'rs.

225 P. 647

129 Wash. 646

STATE ex rel. LANE v. FLEMING et al., City Com'rs.

No. 18548.

Supreme Court of Washington

May 12, 1924

Department 2.

Appeal from Superior Court, Spokane County; Oswald, Judge.

Action by the State, on the relation of Wm. S. Lane, for writ of mandamus to be directed against C. A. Fleming and others, as Commissioners of the City of Spokane. Judgment for defendants, plaintiff appeals. Affirmed.

Pemberton J., dissenting.

E. A Cornelius, of Spokane, for appellant.

J. M Geraghy and Alex M. Winston, both of Spokane, for respondents.

MITCHELL J.

The relator, William S. Lane, is the owner of a lot at the northeast corner of intersecting streets in Spokane, a city of the first class. He duly made an application for a permit to erect a gasoline service station on his property, which was refused by the city council. Thereupon he instituted mandamus proceedings in the superior court to compel the granting of a permit, and upon issue joined the trial resulted in findings against him, and from a judgment on the findings this appeal has been taken.

The findings, to which no exceptions were taken, are, in effect that the relator is the owner of the lot described; that there was and is an ordinance of the city, No. 2826, which provides, among other things:

'Sec. 2. Whenever a permit for the erection of a gasoline service station outside of the fire limits is filed with the city council, the council shall set a date for a hearing upon the application, which date shall not be more than ten days from the date of filing the application, and shall cause notice of such hearing to be posted in a conspicuous place upon the premises to be occupied by the station for at least five days before such hearing. At such hearing the city council may grant the permit or may deny the same if it finds that it would be against public interest to allow the installation of a service station in the location specified.'

That the relator duly made an application for a permit to erect a gasoline service station on the property described, the same being outside the fire limits of the city, and that the city council set a date for hearing the application, caused notice of such hearing to be given as required by the ordinance, and that upon the hearing the city council refused to grant the permit; that on one of the streets near the relator's property, commencing the next block therefrom, there are a number of small mercantile establishments, a Masonic temple directly across the street from his premises, three dwelling houses in the block in which his lot is situated, one of which is on an adjacent lot, and that east and north from his lot for a distance of half a mile is a residential district; that there is in force an ordinance providing in circumstantial detail for the construction and maintenance of gasoline service stations; and that the relator is ready to comply with all rules and regulations of the city with reference to the storage of gasoline and as to the cutting of the curbs of the streets and the construction and maintenance of driveways to and from the streets to his service station.

By assignments of error the appellant assails the constitutionality, under the Fourteenth Amendment of the Constitution of the United States and under the similar provisions of section 3 and 12, art. 1, of the Constitution of the state, of section 2 of the Ordinance No. 2826. If the section of the ordinance referred to is a proper exercise of the police power, its constitutionality can hardly be denied. Indeed, the provisions of the federal and state Constitutions relied on do not apply to legislative enactments in the exercise of the police power. Powell v. Pennsylvania, 127 U.S. 678, 8 S.Ct. 992, 32 L.Ed. 253; Fisher Flouring Mills Co. v. Brown, 109 Wash. 680, 187 P. 399. This upon the theory, as stated in the Powell Case, that organized government cannot divest itself of the power to provide for those things essential in the legitimate exercise of the police power.

So long as the subject-matter is local, there can be no question of the authority of the city to exercise that power. In the Spokane case of Detamore v. Hindley, 83 Wash. 322, 145 P. 462, this court said:

'The state Constitution, section 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.'

In defining that power, we said in State v. Pitney, 79 Wash. 608, 140 P. 918, Ann. Cas. 1916A, 209:

'Whatever may be the limits by which the earlier decisions circumscribed the power, it has, in the more recent decisions, been defined to include all those regulations designed to promote the public convenience, the general welfare, the general prosperity, and extends to all great public needs, as well as regulations designed to promote the public health, the public morals, or the public safety.'

Often the troublesome question arises whether an ordinance must lay down a uniform rule of action governing the exercise of the dispensing power. The question becomes less troublesome, however, upon observing the distinction between those things that are not harmful or unsafe and hence not within the police power, and those things that are within that power. On the subject of 'ordinances conferring discretionary power on city officers,' Dillon on Municipal Corporations (5th Ed.) § 598, says:

'Ordinances prohibiting certain acts without the consent or permit of the common council or the mayor or other executive officer, have in some cases been held to be unreasonable and void, because they submit the rights of individuals to the unrestrained discretion of the council or official. It has been said of ordinances of this nature that they remove the rights of the individual from the domain of law and subject them to the exercise of arbitrary discretion on the part of the council or the officer upon whom the dispensing power is conferred; that it is unreasonable to reserve the right to grant or withhold the privilege as it may suit the pleasure of the council or officer, and that to be a valid an ordinance of this nature must lay down a uniform rule of action governing the exercise of the dispensing power.'

A number of cases are cited, and the author says:

It is, however, to be observed that in the great majority, if not in all, of the cases cited, the ordinance was prohibitory in its nature, and in the view of the courts the acts sought to be prohibited were not of themselves harmful or of such a nature as to justify prohibition. * * * But whilst the principles so laid down are supported by a respectable body of authority, it is believed that they are contrary to the weight of the decisions. Many cases are to be found sustaining ordinances prohibiting acts or even the following of trades or occupations without procuring permits which may be issued at the discretion of the council, mayor, or some other city officer or department, and the fact that the dispensing power was apparently conferred without restraint or qualification has been regarded as arising merely from the difficulty of defining in advance upon what conditions the permit shall be given or the dispensing power exercised. It has also been said that it is not to be assumed that the council or officer in exercising the dispensing power will act arbitrarily or otherwise than in the exercise of a sound discretion.'

Still further, with reference to discretionary powers, the author says in the same section:

'In these cases it appears to be assumed that if the trade or calling is properly of a nature which may be regulated or controlled by virtue of the police power, such regulation or control may be exercised by a prohibition unless a permit be obtained.'

The section concludes with the statement that there are limits to the principle, where it is shown 'that the power thus conferred upon the council or officer is in fact arbitrarily exercised,' citing the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 200, which case has been referred to often in subsequent writings and decisions of the courts. In the case at bar, however, there is no finding that the power, the exercise of which is complained of, was in fact arbitrarily exercised.

In addition to the general grant of the police power to cities by the Constitution the Legislature, by subdivision 23, § 8966, has provided that cities of the first class shall have power:

'To provide for the prevention and extinguishment of fires, and to regulate or prohibit the transportation, keeping, or storage of all combustible or explosive materials within its corporate limits, and to regulate and restrain the use of fireworks.'

That gasoline is a high explosive, and when stored in large quantity possesses the power of danger to persons and property, there can be no doubt. In the case of Whittemore v. Baxter Laundry Co., 181 Mich. 564, 148 N.W. 437, 52 L. R. A. (N. S.) 930, Ann. Cas. 1916C, 818, involving the storage of gasoline, the court said:

'We may also concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks, as testified to by defendant's experts. Considering, however, the dangerous character of the substance and its power as an explosive, of which, in this age of its wonderful development as a power to propel automobiles, traction engines, and airships, we can well take judicial notice, and also considering human fallability, that accidents in the operation of the most perfect mechanism will occur, and all that

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