State v. Superior Court of Pierce County

• Decision Date: 30 November 1920
• Docket Number: 16138.
• Court: Washington Supreme Court
• Parties: STATE ex rel. MAKRIS v. SUPERIOR COURT OF PIERCE COUNTY.

193 P. 845

113 Wash. 296

STATE ex rel. MAKRIS v. SUPERIOR COURT OF PIERCE COUNTY.

No. 16138.

Supreme Court of Washington

November 30, 1920

Department 1.

Petition for writ of certiorari by the State, on the relation of Tom Makris, against the Superior Court of Pierce County. Judgment of the superior court denying relator relief reversed, and cause remanded, with directions to render judgment for relator.

Frank H. Kelley, of Tacoma, for relator.

PARKER J.

The relator, Makris, commenced an action in the superior court for Pierce county against F. Shoemaker, commissioner of public safety of the city of Tacoma, seeking an injunction restraining him and all persons acting under him from interfering with him (Makris) in the conduct of his store and place of business kept for the sale of soft drinks and candy at 1313 1/2 Broadway in that city. The trial of that action upon the merits resulted in judgment of the superior court denying Makris the relief prayed for. He now seeks in this court a reversal of that judgment by this review proceeding.

Shoemaker as commissioner of public safety of the city of Tacoma, has assumed to revoke the license issued by the city to Makris for the conducting of his soft drink and candy business, and also threatens to force Makris to close his place of business. Shoemaker claims that his revoking of the license issued to Makris by the city, and his threatened forcing of Makris to close his place of business are legally justified by the manner of conducting the business by Makris, and the authority vested in him (Shoemaker) by the license ordinance of the city, providing for the licensing and regulating of such business. In February, 1918, the city passed its Ordinance No. 6749 creating a license department in the department of public safety of the city, and providing for the licensing and regulating of various named occupations and businesses. This ordinance provides for penalties by fine and imprisonment for its violation, applicable both to carrying on of the named occupations and businesses without a license therefor, and to the violation of the regulative provisions of the ordinance. In August, 1920, the city passed its Ordinance No. 7301 amending section 47 of its general license Ordinance No. 6749 providing for the licensing and regulating of soft drink and candy stores, which amendment, in so far as we need here notice its language, reads as follows:

'The application for a license for any business mentioned in this section shall be in writing and shall be signed by the owner or manager of such business. The application shall state the place where the business is to be carried on and the nature of the business there to be conducted. Upon the receipt of such application accompanied by the license fee as above provided it shall be the duty of the city clerk to notify the commissioner of health and sanitation and the commissioner of public safety that such application has been made, and the said commissioners shall inspect, or cause to be inspected, the premises where such business is to be conducted. If the premises are found to be in a sanitary condition and to comply in all respects with the provisions of the health and food ordinances of the city of Tacoma relating thereto, and if the premises conform to the building regulations and in no way menace the peace and good order of the community, said commissioners or their representatives shall recommend to the city clerk that such license be issued.

'The recommendation of the two commissioners shall be indorsed upon such application. In case either or both shall recommend that the license be refused the city clerk shall return to the applicant the license fee deposited, but if both shall recommend that such license be issued, the city clerk shall thereupon issue to the applicant a license to conduct the business mentioned in said application at the place therein named. Licenses shall not be transferable. In case the licensee shall move from the location covered by the license to another location in the city, such removal shall by him be reported immediately to the city clerk. All licenses shall be conspicuously posted in a public place on the premises for which such license was granted.

'The license of any business mentioned in this section may be revoked by the commissioner of public safety in his discretion for disorderly or immoral conduct or gambling on the premises, or whenever the preservation of public morality, health, peace or good order shall in his judgment render such revocation necessary. Such revocation shall be subject to appeal to the city council, to be prosecuted by filing a written notice with the council within ten days after the revocation. Upon receipt of such appeal the council shall apppoint a day for hearing the appeal, giving the appellant at least three days prior notice in writing thereof. The decision of the council shall be final.'

Makris being the possessor of a duly issued license under this ordinance, to carry on the business of selling soft drinks and candy, and having established such a business at 1313 1/2 Broadway in the city, and Shoemaker, as commissioner of public safety of the city, being of the opinion that the business, as conducted by Makris, had become a menace to 'the preservation of public morality, health, peace and good order,' assumed to revoke the license, evidencing his decision in that behalf by addressing to Makris a letter reading as follows:

'City of Tacoma, Washington,

'Department of Public Safety,

'August 26, 1920.

'Mr. Tom Makris, 1313 1/2 Broadway, Tacoma Washington--Sir: Whereas, in my judgment the preservation of public morality, health, peace and good order render necessary the revocation of your license for conducting a business for the sale of soft drinks at 1313 1/2 Broadway:

'You are hereby advised that said license is revoked, effective to-day, under the provisions of section 47 of Ordinance No. 6749 as amended by Ordinance No. 7301.

'Very truly yours,

F. Shoemaker,

'Commissioner of Public Safety.'

Makris was also the given to understand, though not by formal written notice, that Shoemaker as commissioner of public safety would force him to close his place of business.

Counsel for Makris challenged the constitutionality and validity of the ordinance in so far as it authorizes the commissioner of public safety to revoke his license and thereafter force the closing of his place of business. A holding that the revocation provisions of the ordinance are void, and the reasons therefor, if sound, may also demonstrate that the prescribed conditions touching the question of issuing or withholding a license are unconstitutional and void. We are not, however, here concerned with that particular question, since Makris has paid the license fee and received his license, and does not now directly challenge the validity of the ordinance in that particular, evidently being satisfied to waive the question of the validity of the ordinance in that particular, during the period covered by his license. The argument here made in behalf of Makris is, in substance, that the effect of the provisions of the ordinance authorizing the revocation of the license is to place in the hands of the commissioner of public safety, and in turn in the hands of the city council upon appeal from the commissioner, the arbitrary power, uncontrolled by any prescribed rule of action, to effectively decide who may and who may not engage in and carry on the manifestly lawful business of selling soft drinks and candy in the city. As we read the ordinance such is the meaning of its terms. It may be that the authority to revoke the license because of the permission by the licensee, of 'gambling on the premises,' is a sufficient prescribing of a cause for revoking the license, and that the revocation provisions of the ordinance in so far as that cause alone is concerned might be upheld, if that specified cause for revoking the license be sufficiently separable from the other provisions of the ordinance, to stand alone. That, however, is not the question before us. That is not claimed as the cause for revoking this license. There is no other specifically prescribed cause for revoking the license or specifically prescribed rule of action which limits or controls the commissioner or the city council in deciding the question of revoking the license. This means that the commissioner, and in turn the city council, may according to their own notions of what is a menace to 'the preservation of public morality, health, peace or good order' in each particular case, decide who may and who may not engage in business of this character in the city. In other words, the commissioner is left to determine for himself, not only what acts may have been committed by the licensee, but also whether or not such acts are 'disorderly or immoral,' or are a menace to the 'preservation of public morality, health, peace or good order' warranting revocation of the license. Manifestly upon appeal to the city council that body is not, by the terms of the ordinance, controlled by any more specifically prescribed rule of action, but, like the commissioner, is a law unto itself in each particular case when the question of revocation of a license comes before that body.

Our decision in Seattle v. Gibson, 96 Wash. 425, 165 P 109, is practically decisive of this case in principle, in favor of Makris, though the license ordinance there involved sanctioned a somewhat plainer usuprpation of arbitrary power than does this ordinance, in that it made no attempt whatever to prescribe any rule touching the question of who should be granted a license and who should be refused a license to conduct a drug store. It is true, in that decision particular...