Tarver v. City Commission In and For City of Bremerton

• Decision Date: 14 December 1967
• Docket Number: No. 39129,39129
• Citation: 435 P.2d 531,72 Wn.2d 726
• Court: Washington Supreme Court
• Parties: George E. TARVER, Petitioner, v. CITY COMMISSION IN AND FOR the CITY OF BREMERTON, Washington, Respondent.

Page 726

72 Wn.2d 726

435 P.2d 531

George E. TARVER, Petitioner, v. CITY COMMISSION IN AND FOR the CITY OF BREMERTON Washington, Respondent.

No. 39129.

Supreme Court of Washington, Department 2.

Dec. 14, 1967.

Gordon L. Walgren, Bremerton, for appellant.

Gerald N. Fisher, Bremerton, for respondent.

NEILL, Judge.

Petitioner George E. Tarver had been a duly licensed taxicab operator in the city of Bremerton until his license was not renewed by order of the Bremerton City Commission. He obtained review of such action of the commission by a writ of certiorari in the superior court which upheld the action of the commission and sustained the validity of the ordinance under which petitioner's license was terminated. Petitioner appeals alleging as error certain factual findings and attacking the constitutionality of the ordinance.

Ordinance No. 1474 of the city of Bremerton provides in part as follows:

Section 1. It is hereby declared to be essential to the public interest that no person shall be authorized or permitted to operate or drive a taxicab within the city limits of the City of Bremerton unless such person shall be of the age of at least twenty-one years, shall be an experienced, able, and careful driver, And shall be a person of good, moral character and reputation. (Italics ours.)

Section 2 as amended by Ord. 1657. It shall be unlawful for any person to drive a taxicab for hire in the City of Bremerton without first having applied for and received and being the holder of a valid subsisting taxicab driver's license in the City of Bremerton. * * *

Section 5 as amended by Ord. 1733. If the Chief of Police finds that any person licensed hereunder has been convicted of a criminal violation of federal or state law, or any ordinance of the City of Bremerton or has forfeited bail after posting thereof after arrest for a criminal violation of such law or ordinance and that Such conviction or bail forfeiture established that such licensee is no longer of good moral character and reputation, or is not a careful and experienced driver, or if the chief of police for any other reason believes that such person is not competent to operate a taxicab within the City of Bremerton, then the chief of police shall make a written report of the circumstances surrounding such matter to the City Commission of the City of Bremerton and shall make recommendations to the City Commission regarding the suspension or revocation of the license of such person. After considering the said report and before revoking or suspending any such license, the City Commission shall order a hearing, and in such case shall notify the licensee of the date of said hearing and of the contents of the report of the chief of police, which said hearing shall be held on a day certain, but shall be not less than ten (10) days from and after the mailing of notice of such hearing to such licensee, and which said notice shall require the licensee to show cause on such date, if any he has, why such license should not be suspended or revoked. The Chief of Police may, in his discretion, suspend any such license for a period not to exceed fifteen (15) days during investigation of such circumstances. If, upon hearing before the City Commission, a majority of the City Commission shall find that the license of the said licensee should be suspended or revoked, it shall be so ordered. An appeal from such order, suspension or revocation, may be made to the Superior Court for Kitsap County, in the manner provided for under the general laws of the State of Washington. In case of the revocation of license, the same shall be taken up by the chief of police and cancelled by the City Clerk, and in case of the suspension of a license the same shall be surrendered to the City Clerk and shall be returned to the licensee at the termination of the period (sic) of suspension. * * * (Italics ours.)

Acting pursuant to the ordinance, the Bremerton Chief of Police on June 29, 1965, addressed a letter to the city commissioners advising that 'it is my intention not to approve the renewal of his (George Earvin Tarver's) taxicab drivers license as of July 1, 1965.' (Mr. Tarver's then current license expired June 30, 1965.) This letter set forth the grounds on which the recommendation was made (conviction of illegal sale of liquor and of driving while intoxicated (not while operating a taxicab)). The letter further states, 'I am requesting revocation of the license of this person, completely and finally.' On July 1, 1965, the city clerk forwarded a copy of the chief's letter of June 29th to Mr. Tarver and advised him of the time and place of a hearing on the recommendation and stated, 'at which time you shall show cause, if any, why such license should not be suspended or revoked.' Petitioner appeared at the hearing with counsel and following such hearing the commission approved the recommendation of the chief of police to revoke and refuse to renew petitioner's license.

Petitioner first assigns error to the trial court's findings of fact that he 'had complete and timely notice of the action of the Chief of Police and of the hearing' and to its conclusion of law that 'The hearing held before the City Commission of the City of Bremerton was made upon due, timely and adequate notice of the content, place and date thereof in the manner and form required by law.' Petitioner further contends that, in violation of his rights under the ordinance and therefore in violation of the due process clause of U.S.Const. Amend. XIV and of Const. art. 1 § 12, the notice to him failed to mention: (1) the chief's intention to disapprove renewal of petitioner's license, as well as to recommend its revocation; (2) the charges leveled against him; and (3) all the reasons for revocation and nonrenewal of his license. It is important to note that petitioner does not contend that the notice and hearing requirements established by the ordinance are illegal; rather, he argues that such requirements were simply not followed in the case at bar. After reviewing the record, however, we are of the opinion that the evidence amply supports the trial court's findings as to this issue.

Petitioner also assigns error to the trial court's finding that 'any objection as to the form, content and timeliness of notice and hearing were waived by Petitioner's appearance before said City Commission and participation in said proceeding with his counsel of record.' Petitioner argues that the cannot be held to have waived his right to object since (1) he was required to attend the hearing, (2) he never received notice prior to the hearing of either the subject matter of the hearing or the information on which such action would be based, and (3) he raised timely objections at the hearing itself. Since we have, however, sustained the trial court's findings that petitioner, in fact, received timely and proper notice, this assignment of error must fail.

Petitioner's final argument is that the ordinance is arbitrary and capricious and in violation of the due process clause of U.S.Const. Amend. XIV and Const. art. 1 § 12. He contends that (1) the ordinance establishes no definite standard to guide the chief of police or respondent in deciding when to revoke a license; (2) the chief of police's own arbitrary and capricious notions determine which violations of law are sufficient to render a person morally irresponsible and unfit to hold a license; (3) the ordinance does not require that the violation of law to be considered must in any way relate to taxicab driving; and (4) taxicab driving is not so 'fraught with injurious results' as to come within the scope of those cases permitting license revocation on the ground of bad moral character alone.

In support of his final argument, petitioner relies upon State ex rel. Makris v. Superior Court, 113 Wash. 296, 302, 193 P. 845, 847, 12 A.L.R. 1428 (1920), in which we held that (A)n ordinance which authorizes the issuing or withholding of a license to engage in a Lawful business, that is, a business which within itself is ordinarily perfectly lawful, and committing to any officer or set of officers the power to decide according to their own notions in each particular case the question of the propriety of issuing or withholding a license therefor, and thus deciding who may and who may not engage in such business, is authorizing the exercise of arbitrary power in violation of the guaranty of the Fourteenth Amendment of the Constitution of the United States * * *. (Italics ours.)

The business activity involved in Makris, supra, was the selling of candy and soft drinks. The ordinance there in question empowered the commissioner of public safety to revoke the license involved 'for disorderly or immoral conduct * * * whenever the preservation of public morality, health, peace or good order shall in his judgment render such revocation necessary.' (p. 298, 193 P. p. 846)

The wisdom and propriety of a municipal ordinance establishing certain standards, regulations or controls for a particular business or occupation is not a question for this court to decide; rather, the scope of our review is limited to determining whether the ordinance is within the scope of municipal power and whether the ordinance and the actions taken pursuant thereto are arbitrary, capricious or unlawful. A review of the prior cases decided by this court indicates that the scope of the state's power to regulate or control the business or occupational activities of its citizens depends in which of the following three general categories the activities involved may be classified: (1) ordinary vocations pursued on private property by private means; (2) social or economic evils, such as gambling or liquor traffic, together with such useful occupations as may, under certain circumstances, become public or private nuisances, because offensive or dangerous to safety, health, etc.; or (3) claims of a private right in, or the...