In the Matter of the Application of THOMAS CAMP for a Writ
of Habeas Corpus
No. 5186
SUPREME COURT OF WASHINGTON
38 Wash. 393, 80 P. 547
April 18, 1905, Decided
Appeal from a judgment of the superior court for Spokane county,
Kennan, J., entered December 23, 1903, upon a hearing of habeas
corpus proceedings, discharging from custody a prisoner convicted
of violating an ordinance.
MUNICIPAL CORPORATIONS -- CONSTITUTIONAL LAW -- PEDDLERS --
REGULATION -- PROHIBITION OF PEDDLING WITHIN RESTRICTED DISTRICT.
Under Bal. Code, § 739, subd. 34, and city charter of Spokane, §
59, subd. 6, conferring power upon the city to "regulate"
peddlers, the city may prohibit peddling fruits, vegetables,
butter, eggs, etc., within the fire limits of the city, where
such limits are not so extensive as to effect a practically
general prohibition in the city.
MUNICIPAL CORPORATIONS -- CLASS LEGISLATION -- SPECIAL
PRIVILEGES. An ordinance prohibiting any person from peddling
fruits, vegetables, butter, eggs, etc., within the fire limits of
a city, excepting farmers disposing of produce grown by
themselves, grants special privileges in violation of Const. art.
1, § 12, and is unconstitutional, since such classification can
be made only where the regulation is for the purpose of taxation.
E. O. Connor, for appellant.
HADLEY, J. MOUNT, C.J., FULLERTON, and DUNBAR, JJ., concur.
RUDKIN, ROOT, and CROW, JJ., took no part. HADLEY
{*393} The respondent was arrested, tried, and convicted before
the police justice of the city of Spokane, {*394} on the charge
of peddling within the fire limits of said city, in violation of
an ordinance prohibiting the peddling of fruits, vegetables,
butter, eggs, etc., within said limits. He then applied to the
superior court for a writ of habeas corpus, directed to the chief
of police of said city. The writ was issued, and, upon return
being made thereto, a hearing was had, and the respondent was
discharged. The chief of police, in behalf of the city, has
appealed.
The respondent has filed no brief in this court, and the
following statement appears in appellant's brief:
"The court, after hearing the argument of counsel, made an order
discharging the said respondent from custody, and based his
decision on the grounds that section 1 of ordinance No. A1512, of
the ordinances of the city of Spokane, was void, for the reason
that the city under its charter provisions did not have the power
to prohibit the business of peddling within the fire limits. All
other objections raised by respondent to the ordinance were
overruled."
The above statement not being challenged, and the record not
showing to the contrary, it is proper that we shall first
determine whether the city has the power to prohibit peddling
within the limits mentioned. Subdivision 34 of Bal. Code, § 739,
confers the following powers upon cities of the first class:
"To regulate the carrying on within its corporate limits of
occupations which are of such a nature as to affect the public
health or the good order of said city, or to disturb the public
peace, and which are not prohibited by law; and to provide for
the punishment of all persons violating such regulations, and of
all persons who knowingly permit the same to be violated in any
building or upon any premises owned or controlled by them."
The charter of the city of Spokane, § 59, subd. 6, provides as
follows:
{*395} "To license, tax, regulate and control, hawkers, peddlers,
shows, theatricals, circuses, and all other classes of business
not otherwise in this charter provided for."
It is manifest from the foregoing provisions that the power to
regulate and control the business of peddling resides in the city
of Spokane. Does the power of regulation and control include the
power to prohibit within a specified portion of the city? We
think it does. If the restricted district were so extensive as to
effect a practically general prohibition in the city, of a
business lawful within itself, it is possible that a different
question might arise. But such a question is not now before us.
That the power to regulate includes the power to prohibit a
business within specified territory, was directly held in Cronin
v. People, 82 N.Y. 318, 37 Am. Rep. 564. The court observed as
follows:
"We see nothing, therefore, in the language of the other
subdivisions to change our conclusion that an ordinance which
excludes from a specific place or locality the business of
slaughtering cattle is a regulation of that business, and
therefore within the power conferred upon the common council by
the provision under discussion. Indeed the precise point was long
ago adjudged. In The Village of Buffalo v. Webster (10 Wend.
100), where a similar ordinance was assailed as in restraint of
trade, the court held that an ordinance providing 'that meat
shall not be sold in a particular place is good, not being a
restraint of the right to sell meat but a regulation of that
right.'"
Appellant cites the above as a leading case upon the subject, and
many others are cited upon this point. But we regard the
principle as well settled and shall not indulge in further
reference to authorities except to say that the recent case of In
re Garfinkle, 37 Wash. 650, 80 P. 188, recognizes the validity of
such an ordinance as applied to a restricted district in the city
of Seattle.
{*396} There is a question involved here, however, which we think
sustains the court's judgment. Section 1 of the ordinance is as
follows:
"No person, firm, or corporation shall engage in, prosecute, or
carry on the business of peddling fruits, vegetables, butter,
eggs, etc., within the fire limits in the city of Spokane. The
provisions of this section not to apply to farmers disposing of
produce grown by themselves."
It will be seen that farmers, when disposing of products which
have been grown as the result of their own efforts, are exempted
from the terms of the ordinance. The principle of discrimination
presented by said provision was considered in State ex rel. Luria
v. Wagener, 69 Minn. 206, 72 N.W. 67, 65 Am. St. 565, 38 L.R.A.
677. The court was considering a state statute which purported to
license and regulate hawkers and peddlers throughout the state,
but the act provided that it should not "be construed to prevent
any manufacturer, mechanic, nurseryman, farmer, butcher, fish or
milk dealer, selling as the case may be, his manufactured
articles or products of his nursery or farm, or his wares, as a
fish or milk dealer or butcher, either by himself or employee."
It was held that the classification by which the manufacturer or
farmer was permitted to peddle his own products but which
prohibited those who purchased his products from doing the same
thing, rendered the statute unconstitutional and void. The court
made the following observations:
"Thus, the manufacturer is allowed, by himself and his employee,
to peddle without license the wares of his own manufacture. The
legislature can regulate the business of hawker or peddler only
for the purpose of preventing it from becoming a nuisance. The
business is inherently moral and legitimate in itself, but there
is in it a tendency to abuse, as many irresponsible, clamorous
and intrusive persons engage in it. It cannot be held, on any
{*397} sound principle, that peddling may not become a nuisance
as well when the peddler or his employer has manufactured the
wares he peddles as when some one else has manufactured them. . .
. In the same manner as the act here in question attempts to
distinguish between peddling by the manufacturer and his servant
and peddling by the purchaser from such manufacturer, it
attempts to distinguish between peddling by the farmer or
nurseryman and peddling by the purchaser from such farmer or
nurseryman; between peddling by the butcher and peddling by the
purchaser from such butcher. These distinctions are arbitrary and
no proper basis for classification."
The manifest object of the section of the ordinance now under
consideration is regulation, and not to raise revenue, for the
reason that the excluded persons are not permitted to peddle,
even if they should pay a license tax. It has been held that a
classification may be valid if the object of the legislation is
revenue, and invalid if the object is regulation only. This
distinction was recognized in Rosenbloom v. State, 64 Neb. 342,
89 N.W. 1053, 57 L.R.A. 922. The classification there upheld was
for the purpose of taxation. But, inasmuch as the excluded class
in the case at bar are not even given the opportunity to pay a
tax, it is manifest that the city council was dealing with
peddling in the given district wholly as a nuisance, and not as a
subject of taxation. One class is permitted to indulge in the
nuisance and others are unconditionally prohibited. Even if it
should be conceded that such a classification for the purposes of
revenue and taxation may be made, still, since there is no
element of taxation involved, we think the classification made by
the ordinance grants special privileges, in violation of art. 1,
§ 12, of the state constitution, which is as follows:
"No law shall be passed granting to any citizen, class of
citizens, or corporation other than municipal, privileges {*398}
or immunities which upon the same terms shall not equally belong
to all citizens or corporations."
For the foregoing reasons, we believe the judgment of the lower
court was right, and it is affirmed.
DISPOSITION
Affirmed.
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