State v. Spiller

• Decision Date: 21 December 1927
• Docket Number: 20719.
• Parties: STATE (City of Auburn v. SPILLER.
• Court: Washington Supreme Court

262 P. 128

146 Wash. 180

STATE (City of Auburn v. SPILLER.

No. 20719.

Supreme Court of Washington

December 21, 1927

Department 2.

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

T. G Spiller was convicted in police court of violating a city ordinance relating to garbage and waste material. He appealed to the superior court, where a judgment was entered dismissing the action and discharging the defendant, and the city appeals. Reversed and remanded, with instructions.

I. B Knickerbocker and Knickerbocker & Hunt, all of Auburn, for appellant.

FULLERTON J.

The city of Auburn, in King county, duly enacted an ordinance relating to garbage and other waste material. Section 4 of the ordinance (as amended) reads as follows:

'Section 4. That it shall be the duty of each householder, head of a family, tenant, and proprietor or operator of a place of business within the corporate limits of the city of Auburn, being in possession of or in charge of any premises within said city upon which garbage accumulates or may accumulate, to provide and at all times maintain upon such premises, at a place where the same may be conveniently emptied by the garbage contractor, as hereinafter defined, a metallic can of not greater capacity than thirty-six (36) gallons, properly covered so as to prevent flies from entering such cans or escaping therefrom, free from leaks and in such condition that waste material will readily pour therefrom and to deposit all garbage accumulating upon such premises in such metallic can as fast as the same accumulates; that any person, firm or corporation who shall fail to comply with the provisions of this section shall be guilty of a misdemeanor; that in any prosecution for the violation of any provision of this section it shall be competent to prove that the person failing to furnish and provide or maintain such metallic can or deposit garbage therein as in this section provided is purchasing water from the city of Auburn for use upon such premises, and proof of such purchase of water shall be prima facie evidence that garbage is accumulating upon such premises.'

The respondent, Spiller, was convicted in the police court of the city of a violation of the section of the ordinance quoted and appealed from the judgment of conviction to the superior court of King county. In that court he interposed a demurrer to the complaint charging the offense, which demurrer the trial court sustained, entering a judgment dismissing the action and discharging the defendant. The city appeals.

The record does not disclose the reasons which actuated the trial court in sustaining the demurrer, nor has the respondent made an appearance in this court. We are not, therefore, advised as to the grounds upon which the demurrer was sustained further than they may be reflected from the demurrer itself and the arguments of counsel appearing on the part of the city. The demurrer was based upon three grounds; First, that the complaint does not state facts sufficient to constitute a crime or misdemeanor; second, that it charges more than one crime; and, third, 'that the ordinance * * * is unconstitutional and null and void, and especially section 4 * * * reading as follows: 'That in any prosecution for the violation of any provision of this section it shall be competent to prove that the person failing to furnish and provide or maintain such metallic can or deposit garbage therein as in this section provided is purchasing water from the city of Auburn for use upon such premises, and proof of such purchase of water shall be prima facie evidence that garbage is accumulating upon such premises.''

We are not persuaded that either of the objections raised by the demurrer are well founded. The complaint charges that the defendant willfully and unlawfully failed, neglected, and refused to comply with the requirements of the ordinance, which requirements are set forth in the complaint substantially in the language of the ordinance. We see nothing in it which requires the holding that no offense is stated. It may be that, under the rule that a municipal court is obligated to take judicial notice of the ordinances of the municipality under which it functions, and the further rule that the appellate court is required to judicially notice the statutes or ordinances which the primary court must judicially notice, the complaint unnecessarily pleads the ordinance, but this does not render the complaint insufficient. It can be regarded as surplusage, and ignored.

The claim that more than one offense is charged is possibly founded on the fact that the complaint charges that the defendant failed to furnish and maintain the required garbage can, and failed to deposit therein the garbage accumulated by him. But this is not the statement of two distinct crimes. As said in State v. Klein, 94 Wash. 212, 162 P. 52:

'In other words, the defining statute enumerates disjunctively a series of acts, either of which separately, or all together, so far as they are not in their nature inconsistent, may constitute the single offense of larceny. In such a case it is thoroughly settled that the information may charge in a single count the commission of the offense in any, or, by conjunctive allegation, in all of the enumerated and not inconsistent ways. 'And proof of it in any one of the ways will sustain the allegation.' State v. Holedger, 15 Wash. 443, 46 P. 652; State v. Newton, 29 Wash. 373, 70 P. 31; State v. Ilomaki, 40 Wash. 629, 82 P. 873; State v. Adams, 41 Wash. 552, 83 P. 1108; State v. Wappenstein, 67 Wash. 502, 121 P. 989; State v. McBride, 72 Wash. 390, 130 P. 486; State v. Pettit, 74 Wash. 510, 133 P. 1014; 1 Bishop, New Criminal Procedure (2d Ed.) § 436; 14 R. C. L. 40.'

It may be that it follows as a matter of course that, if the defendant did not maintain the can, he did not deposit the garbage accumulated by him therein. But it is possible for him to do the one and not the other, and to charge both is but to state different acts which constitute a single offense. It is thus legitimate to charge both in one complaint, and a conviction may be had...