Town of Sumner v. Ward

• Decision Date: 09 August 1923
• Docket Number: 17912.
• Citation: 126 Wash. 75,217 P. 502
• Parties: TOWN OF SUMNER v. WARD.
• Court: Washington Supreme Court

217 P. 502

126 Wash. 75

TOWN OF SUMNER v. WARD.

No. 17912.

Supreme Court of Washington

August 9, 1923

Department 2.

Appeal from Superior Court, Pierce County; E. M. Card, Judge.

Perry R. Ward was convicted of violation of a municipal ordinance of the Town of Sumner, and he appeals. Affirmed.

Ellis Fletcher & Evans, of Tacoma, for appellant.

De Witt M. Evans, of Tacoma, for respondent.

FULLERTON J.

The facts of this cause are stipulated. It appears that on June 26, 1922, the town of Sumner, a municipal corporation, enacted an ordinance, the provisions of which material for consideration here, read as follows:

'Section 1. No person or persons, firm or corporation shall peddle or offer for sale by going from house to house at the private residences in the town of Sumner, any teas, coffees, wool or cotton piece goods, stockings, furs, or wearing apparel, extracts, groceries, meat, fish, confectionery, stationery, aluminum ware, brushes, vacuum cleaners, carpet sweepers, washing machines, notions, novelties, books, periodicals, jewelry, spectacles, eye glasses, dry goods, soaps, patent medicines, toilet preparations, within the corporate limits of the town of Sumner, without first having obtained a license so to do as hereinafter provided.

'Sec. 2. No person shall engage in the occupation of a canvasser or solicitor by traveling from house to house within the corporate limits of the town of Sumner, and soliciting the residents of said town at their private residences to purchase, order, buy or agree to buy or purchase, or subscribe for, to be delivered in the future, any of the articles enumerated in section 1 hereof, without having first obtained a license so to do as herein provided.'

'Sec. 4. Any person desiring a license to engage in any of the occupations enumerated in sections 1 and 2 of this ordinance, shall apply for the same to the town clerk of the town of Sumner, and shall pay therefor the sum of five dollars per day for each day he desires such license. Whereupon the town clerk shall, unless he has good reason to believe such applicant to be dishonest or immoral and that he desires such license to enable him to practice some dishonest or immoral act, issue to said applicant a license specifying the purpose for which the same is used and the duration of the same.'

It further appears that the appellant, Ward, after the enactment of the ordinance, and without procuring the license therein provided for, traveled from house to house within the corporate limits of the town of Sumner, and solicited and took from the residents thereof orders for brushes manufactured by the Fuller Brush Company, a foreign corporation; that he took these orders to the warehouse of the corporation named located in the city of Seattle, received from the corporation at that place the brushes ordered, and afterwards delivered them to the persons ordering them and collected the purchase price. It further appears that the appellant was arrested and convicted as for a violation of the ordinance before a police judge of the town of Summer and sentenced to pay a fine, and that he appealed from the judgment of the police justice to the superior court of Pierce county where the judgment of conviction was affirmed. This appeal is from the judgment of the superior court.

The attack is upon the validity of the ordinance. Against its validity the appellant makes two principal contentions: First, that the ordinance grants privileges and immunities to one class of citizens which upon the same terms it denies to others; and, second, that the ordinance reposes in the city clerk arbitrary power to grant or withhold the license at will.

With reference to the first of the contentions, it will be noticed that the ordinance makes no discrimination on the ground of citizenship as to the persons who may obtain a license. None are denied on that ground, and every person who desires to sell the enumerated articles in the manner prescribed and in the territory delineated must procure the required license. If, therefore, the ordinance is void at all, it is void because it requires a license to sell a certain class of articles of merchandise while it permits the selling in the same manner of another class without a license. But to be void for this reason, even were the ordinance solely a regulatory measure, there must be no just distinction between the articles for the sale of which a license is required and those articles for the sale of which it is not. And in determining whether there is such a distinction the courts will not enter upon any very exacting inquiry. As was said in State v. Evans, 130 Wis. 381, 110 N.W. 241, quoted with approval in McKnight v. Hodge, 55 Wash. 289, 104 P. 504, 40 L. R. A. (N. S.) 1207:

'As to the cogency or propriety of either the regulations made, or of the importance of the distinctions, as we have so often said, the courts have little concern. Those subjects rest with the Ligislature, and only when the court, in the exercise of the utmost deference toward that other branch of the government, is compelled to say that no one in the exercise of human reason and discretion could honestly reach a conclusion that distinctions exist having any relation to the purpose and policy of the legislation, can it deny its validity.' Turning to the ordinance, it will be seen that it enumerates the principal articles most commonly used in the household, those which are most generally sold by canvassers and solicitors in the manner the ordinance defines. There may be some articles equally common omitted, but exactness and precision is not required, and such omissions are not fatal unless they are so gross as to indicate an arbitrary purpose to discriminate on the part of the legislative authority enacting the ordinance. Here we cannot think they are so, and as a regulatory ordinance we do not find

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