State v. Lundquist
| Decision Date | 23 August 1962 |
| Docket Number | No. 36077,36077 |
| Citation | 374 P.2d 246,60 Wn.2d 397 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Appellant, v. Ruth LUNDQUIST, Respondent. |
W. R. Studley, City Attorney, Longview, for appellant.
Calbom, Walker & Cox, Longview, for respondent.
Defendant was convicted in police court of the city of Longview and fined $250 for violation of the Longview Code of Ordinances, § 15-14, which provides:
(Italics ours.)
The criminal complaint alleged that defendant
'* * * did then and there wilfully and unlawfully discharge an air gun without lawful authority. * * *' (Italics ours.)
The state law on this subject is RCW 9.41.230:
'Every person who shall aim any gun, pistol, revolver or other firearm, whether loaded or not, at or towards any human being, or who shall wilfully discharge any firearm, air gun or other weapon, or throw any deadly missile in a public place, or in any place where any person might be endangered thereby, although no injury result, shall be guilty of a misdemeanor.' (Italics ours.)
A week later defendant was convicted in police court, fined $100, $50 suspended, for violation of Longview Code of Ordinances, § 23-31, which provides:
The criminal complaint alleged that defendant
'* * * did then and there wilfully and unlawfully injure the private property of James Polis by shooting and wounding a brown and white dog owned by James Polis, * * *.'
The applicable state laws are:
'Every person who shall wilfully----
* * *
* * *
'(9) Kill, maim or disfigure any animal belonging to another, or expose any poisons or noxious substance with intent that it should be taken by such animal;
* * *
* * *
'Shall be guilty of a misdemeanor.' RCW 9.61.040. (Italics ours.)
'Every person who shall wilfully or maliciously destroy or injure any real or personal property of another, for the destruction or injury of which no special punishment is otherwise specially prescribed, shall----
'(1) If the value of the property destroyed, or the diminution in value by the injury, shall be less than twenty dollars, be guilty of a misdemeanor.
'(2) If the value of the property destroyed, or the diminution in value by the injury, shall be twenty dollars or more, be guilty of a gross misdemeanor.' RCW 9.61.070. (Italics ours.)
Both convictions arose from the same occurrence; trial of the second charge was continued at the request of defense counsel.
Defendant offered no testimony. Both convictions were appealed to the superior court; they were consolidated for further proceedings.
The superior court held both ordinances, quoted supra, unconstitutional because they were vague and indefinite, established no ascertainable standard of guilt, and made criminal, innocent or justifiable acts.
The Constitution of the State of Washington, Art. 11, § 11, and RCW 35.24.290 (18) authorizes a city to adopt ordinances, in the exercise of its police power, so long as they are not in conflict with the state or federal constitutions, and the general laws of the state or the United States, provided the state enactment does not show upon its face that it was intended to be exclusive. Bellingham v. Schampera, 57 Wash.2d 106, 356 P.2d 292 (1960) and cases cited.
In addition, an ordinance must bear a reasonable relation to a lawful purpose--to promote health, welfare, safety, or morals.
The rule, supported by authorities, is succinctly stated in 56 Am.Jur., Weapons and Firearms, § 7:
First, defendant urges that § 15-14 conflicts with state law and is unconstitutional because RCW 9.41.230 (quoted supra) confines the crime to one '* * * who shall wilfully discharge any firearm * * *' while the ordinance may apply to one who acts wilfully, negligently, or accidentally.
We do not find a conflict between the state statute and the ordinance; both are prohibitory, and there is no indication that the legislature intended the statute to be exclusive.
"In determining whether an ordinance is in 'conflict' with general laws, the test is whether the ordinance permits or licenses that which the statute forbids and prohibits, and vice versa.' Village of Struthers v. Sokol, 108 Ohio St. 263, 140 N.E. 519. Judged by such a test, an ordinance is in conflict if it forbids that which the statute permits'. State v. Carran, 133 Ohio St. 50, 11 N.E.2d 245, 246.
"'The statute, as well as the ordinance, in the case at bar, is prohibitory, and the difference between them is only that the ordinance goes farther, in its prohibition--but not counter to the prohibition under the statute, * * *"' Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292 (1960).
We do not reach the question of the constitutionality of the ordinance under the police power as it may apply to a person accused of negligently or accidentally discharging a gun, for defendant was charged with 'wilfully and unlawfully' discharging an air gun. In the instant case, defendant's contention that the ordinance is unconstitutional because a person may be charged with negligently or accidentally discharging a firearm within corporate limits is a hypothetical claim resting on an abstract assumption.
A person may not urge the unconstitutionality of an ordinance or statute unless he is harmfully affected by the particular feature of the ordinance or statute alleged to be an unreasonable exercise of the police power. A litigant who challenges the constitutionality of an ordinance must claim infringement of an interest particular and personal to himself, as distinguished from a cause of dissatisfaction with the general framework of the ordinance.
State v. Bowman, 57 Wash.2d 266, 356 P.2d 999 (1960) illustrates our most recent application of this rule. Defendant challenged the constitutionality of the negligent homicide statute on the ground that the title to the act, as passed by the legislature, contained one subject while the act contained more than one subject.
The title provided: 'An Act relating to vehicles and the operation thereof upon public highways.' Laws 1937, c. 189. The act, however, is not limited in its application to accidents on public highways. The court said:
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