State v. Pitney

• Decision Date: 16 May 1914
• Docket Number: 11565.
• Citation: 140 P. 918,79 Wash. 608
• Parties: STATE v. PITNEY.
• Court: Washington Supreme Court

140 P. 918

79 Wash. 608

STATE v. PITNEY.

No. 11565.

Supreme Court of Washington, En Banc.

May 16, 1914

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Demurrer to information against F. S. Pitney was sustained, judgment of dismissal entered, and the State appeals. Reversed and remanded, with directions.

John F Murphy, Rob't H. Evans, and Brightman, Halverstadt &amp Tennant, all of Seattle, for the State.

Stroock & Stroock, of New York City, and Hughes, McMicken, Dovell &amp Ramsey, of Seattle, for respondent.

MAIN J.

The defendant in this case was by information charged with the crime of using trading stamps, in violation of law. At the legislative session of 1913 (Laws of 1913, p 413), an act was passed forbidding the use in connection with the sale of goods, wares, or merchandise, of any stamps, coupons, tickets, certificates, cards, or other similar devices, unless a license fee in the sum of $6,000 per annum be paid, as specified in the act. A violation of any of the provisions of the act was made a gross misdemeanor. To the amended information charging the defendant with the use of trading stamps, in violation of the statute, a demurrer was interposed. This was sustained by the trial court. The state elected to stand upon the amended information and refused to plead further. Thereupon a judgment dismissing the cause was entered, from which the present appeal is prosecuted.

The sole question for determination is whether the act in question violates any provision of the state or federal Constitutions.

As sustaining the judgment of the trial court, our attention is called to the following provisions of the state Constitution: Article 1, § 3, which provides that no person shall be deprived of life, liberty, or property without due process of law. Section 12 of the same article, which guarantees the equal protection to all citizens. And section 14, which prohibits excessive fines. The provision of the federal Constitution which is pointed out is section 1 of the fourteenth amendment, which provides that no state shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

That provision of the state Constitution which prohibits excessive fines need not be further noticed. For the purposes of this opinion it will be assumed that the fine of $6,000 which the act provides for is prohibitory. In other words, the act will be considered as though it prohibited the use of trading stamps. This assumption also makes it unnecessary to determine whether the court may inquire into the amount of the tax, when the right to tax is once established, and determine whether it is prohibitive. The provisions of the federal and the state Constitutions relative to the equal protection of the laws, and due process of law, are substantially the same. That the law does not violate the right of a citizen to equal protection of the laws is settled in the cases of Fleetwood v. Read, 21 Wash. 547, 58 P. 665, 47 L. R. A. 205; Sperry & Hutchinson v. Tacoma, 68 Wash. 254, 122 P. 1060.

The ultimate question for determination is whether a law which prohibits the use of trading stamps violates the due process of law clause of either the state or federal Constitutions. When the constitutionality of a legislative enactment is called in question, it will be presumed constitutional and valid until the contrary clearly appears. It is the duty of the court to sustain the law, unless its invalidity is so apparent as to leave no reasonable doubt upon the question. In State v. Ide, 35 Wash. 576, 77 P. 961, 67 L. R. A. 280, 102 Am. St. Rep. 914, 1 Ann. Cas. 634, the court speaking upon this subject said: 'Before proceeding to the consideration of the objections interposed by appellant to this poll tax law and these city ordinances, we deem it proper to observe that it is settled by the highest authority that a legislative enactment is presumed to be constitutional and valid until the contrary clearly appears. In other words, the courts will presume that an act regularly passed by the legislative body of the government is a valid law, and will entertain no presumptions against its validity. And, when the constitutionality of an act of the Legislature is drawn in question, the court will not declare it void unless its invalidity is so apparent as to leave no reasonable doubt upon the subject.'

If the law under consideration is a proper exercise of the police power, its constitutionality will hardly be denied. In determining the validity of the law, therefore, inquiry must be directed to whether its provisions come within the scope of the 'police power.' The early decisions define this power as extending to those regulations promulgated by or under the authority of the Legislature which had for their object the promotion of the public health, the public morals, or the public safety. Without reviewing the evolution of the law upon this subject as evidenced by the decisions of courts of last resort, it may be said that, 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. In C., B. & Q. R. Co. v. Illinois, 200 U.S. 561, 26 S.Ct. 341, 50 L.Ed. 596, it was said: 'We hold that the police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.'

In Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912a, 487, it was said: 'It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.'

In Schmidinger v. Chicago, 226 U.S. 578, 33 S.Ct. 182, 57 L.Ed. 364, it was said: 'The right of state Legislatures or municipalities acting under state authority to regulate trades and callings in the exercise of the police power is too well settled to reuqire any extended discussion. In Gundling v. Chicago, 177 U.S. 183, 188 [20 S.Ct. 633, 635 (44 L.Ed. 725)], the doctrine was stated by this court as follows: 'Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be and to what particular trade, business, or occupation they shall apply, are questions for the state to determine, and their determination comes within the proper exercise of the police power by the state, and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with, or destroyed without due process of law, they do not extend beyond the power of the state to pass, and they form no subject for federal interference.''

This court, in State v. Mountain Timber Co., 75 Wash 581, 135 P. 645, discussing the scope of the police power, used this language: 'The scope of the police power is to be measured by the legislative will of the people upon questions of public concern, not in acts passed in response to sporadic impulses or exuberant displays of emotion, but in those enacted in affirmance of established usage or of such standards of morality and expediency as have by gradual processes and accepted reason become so fixed as to fairly indicate the better...