Winkenwerder v. City of Yakima

• Decision Date: 24 July 1958
• Docket Number: No. 34082,34082
• Citation: 328 P.2d 873,52 Wn.2d 617
• Court: Washington Supreme Court
• Parties: Roy WINKENWERDER, Respondent, v. The CITY OF YAKIMA, a municipal corporation, and Meter Advertising Company, a corporation, Appellants, and Republic Publishing Company, a corporation, Intervenor and Respondent.

Page 617

52 Wn.2d 617

328 P.2d 873

Roy WINKENWERDER, Respondent, v. The CITY OF YAKIMA, a municipal corporation, and Meter Advertising Company, a corporation, Appellants and Republic Publishing Company, a corporation, Intervenor and Respondent.

No. 34082.

Supreme Court of Washington, Department 1.

July 24, 1958.

Arthur Kirschenmann, Robert R. Roberts, Yakima, for Meter Advertising co.

Hawkins & Loy and Cheney & Hutcheson, Yakima, for City of Yakima.

Beaulaurier & Hanson, Yakima, for respondent Winkenwerder.

Halverson, Applegate & McDonald, Yakima, for Republic Pub. Co. FINLEY, Justice.

On July 26, 1955, the city commission of the city of Yakima passed Ordinance No. B-1720, which provided:

'An Ordinance relating to advertising signs on parking meters, and authorizing execution of a contract with the Meter Advertising Company pertaining thereto, and providing for the utilization of the City's share of the revenue therefrom for traffic regulation purposes.

'Be It Ordained By The City Of Yakima:

'Section 1. The Meter Advertising Company, a Washington corporation, is hereby granted permission and directed to place and maintain advertising signs in suitable metal holders affixed to the top of at least 500 parking meters located in the central business district of said city during a six-month period, commencing September 15th, 1955, and thereafter for such additional period, if any, as may be authorized by ordinance or resolution adopted by the Yakima City Commission, in consideration of the sum of $1.00 per parking meter per month for all parking meters upon which said advertising signs are placed, to be paid to said city, and in accordance with the terms and conditions more fully provide in the agreement of even date herewith between said parties, a copy of which is attached hereto and incorporated by reference herein; and the Mayor and City Clerk are hereby authorized and directed to execute said agreement on behalf of said city.

'Section 2. All revenue received by the city therefrom shall be placed by the City Treasurer in the Parking Meter Fund, from which the same shall be expended and utilized solely and exclusively for the payment of a portion of the expense of traffic regulation in said city.

'Section 3. The said Company shall not use any parking meters in said City in such a manner as to prevent, obstruct or interfere with the use thereof for the primary purpose of regulating traffic and parked vehicles.

'Section 4. Nothing herein permitted shall be deemed unlawful or a violation of Ordinance No. A-282, passed on July 25, 1917, or Ordinance No. B-1526, passed on December 31, 1953, as amended, or any other ordinance of said City heretofore passed.

'Section 5. This ordinance shall be in full force and effect thirty days after its passage, approval and publication as provided by law and the City Charter.

'Passed By The City Commission, signed and approved, this 26th day of July, 1955.

'/s/ Gilbert W. Burns

Mayor

'Attest:

'/s/ Pearl Benjamin

City Clerk'

On the same day, the city of Yakima (hereinafter referred to as the city) entered into an agreement with the Meter Advertising Company (hereinafter referred to as the company), which, apparently, owns or holds the rights to an invention--a metallic device for holding advertising signs to be affixed to the top of parking meters. Under the terms of the agreement, the city authorized and directed the company to install and maintain advertising signs in the holders affixed to at least 500 meters during a six-month trial period; the company agreed to pay $1.00 a month for each parking meter so used, and guaranteed the city a minimum of $3,000 for the six-month period. It was further agreed that should the city elect to renew the contract the company would furnish a correct profit and loss statement of the company to the city to be used as a basis for further negotiations. The company agreed not to use any parking meter or meters in such a manner as to prevent, obstruct or interfere with the primary use of the meter for regulation of parking. For clarity, we will quote two of the additional provisions in the agreement:

'6. All advertising charges and all advertising signs used shall be subject to approval by the City Commission as to their nature, size, general appearance and reading matter content, and the same shall be substantially in accordance with the sample thereof previously shown to the City Commission. The signs shall contain no advertising of beer, wine or other intoxicating liquor. The signs shall contain nothing which in the opinion of the Yakima City Commission is of a vulgar, distasteful or abscene nature or offensive to the public. The signs shall contain no religious advertising which in the opinion of the City Commission is of a controversial or sectarian character. The signs shall contain no city political advertising nor any advertising for any candidate for any political office in said city, nor advertising exclusively for any one political party; but political advertising thereon shall so far as practicable be available in equal amounts to each political party and the candidates thereof. The Company shall to a reasonable extent include without additional charge on said advertising signs, traffic slogans or other similar language encouraging traffic safety and careful automobile operation.

'7. No sign advertising the business of a competitor or competing product shall be placed in front of, adjacent to or within a distance of one-half block (on the same side of the street) of a competing business establishment. With reference to a corner establishment, said restriction shall apply for a distance of one-half block on each street from the said corner. The authority and responsibility for determining what is or is not competitive advertising shall be solely that of the City Commission (or a public official, if any, or said City designated by it).'

Pursuant to the ordinance and the agreement, the company installed the holders and the advertising signs on the top of various parking meters in the city. Thereafter, Roy Winkenwerder initiated a declaratory judgment action seeking to have the ordinance and agreement declared invalid, and an injunction requiring removal of the metal holders and the advertising from the city parking meters. The Republic Publishing Company filed a complaint of intervention, requesting a permanent injunction against the city and the company.

Winkenwerder is a retail hardware and appliance dealer. Republic Publishing Company is engaged in the general printing and publishing business. Both concerns own property abutting on streets where parking meters, with the accompanying metal holders and advertising signs, have been installed. The city and the company demurred to both complaints on the ground that they did not state facts sufficient to constitute a cause of action. The trial court overruled the demurrers and, when the city and the company refused to plead further, entered judgment for the plaintiff and intervenor. The judgment declares the ordinance and agreement to be null and void, and the defendants are permanenty enjoined 'from affixing, permitting the affixing, or maintaining holders and advertising signs to or upon parking meters in the City of Yakima.' The city and company have appealed.

Counsel have stipulated the accuracy of certain pictures showing the parking meters with the advertising holders affixed thereto. These pictures were attached to the complaint and are contained in the record. Rather than to give a detailed description of the metal holders and the signs contained therein, we reproduce below two of the photographs.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Yakima is a city of the first class. With respect to the powers of a city of the first class, we said in State ex rel. Ennis v. Superior Court, 1929, 153 Wash. 139, 279 P. 601, 604:

'It is evident from the Constitution of this state and legislative enactments that in Washington cities of the first class are vested with very extensive powers, and that under Rem.Comp.Stat., § 8982, supra, the statutes of this state concerning the same must be liberally construed by the courts for the purpose of carrying out the manifest intent of the Legislature to establish cities of the first class as self-governing bodies, only 'subject to and controlled by general laws."

It is clear from the Ennis case and from many other decisions of this court that the only limitation on the power of cities of the first class is that their action cannot contravene any constitutional provision or any legislative enactment. See State ex rel. Billington v. Sinclair, 1947, 28 Wash.2d 575, 183 P.2d 813; State ex rel. Griffiths v. Superior Court, 1934, 177 Wash. 619, 33 P.2d 94; Walker v. City of Spokane, 1911, 62 Wash. 312, 113 P. 775. Cf. Washington Fruit & Produce Co. v. City of Yakima, 1940, 3 Wash.2d 152, 100 P.2d 8, 103 P.2d 1106, 128 A.L.R. 159; and Brennan v. City of Seattle, 1929, 151 Wash. 665, 276 P. 886, relative to the broad police powers of a city of the first class. The principles adhered to in the preceding cases clearly indicate that a city of the first class has as broad legislative powers as the state, except when restricted by enactments of the state legislature.

Respondents have not challenged the ordinance and agreement as contravening any state statute. If the state could constitutionally exercise the powers which the city is here attempting to exercise, then the ordinance and agreement are valid, unless they contravene some provision of the city's charter.

'It is, of course, the general rule that every presumption is in favor of the constitutionality of a law or ordinance.' City of Spokane v. Coon, 1940, 3 Wash.2d 243, 100 P.2d 36, 38. The burden rests upon the party who challenges an ordinance to establish clearly its invalidity. Ibid. It is well to keep in mind the words of Justice Holmes in ...