THE CITY OF SPOKANE, Appellant,
vs.
A. M. MACHO, Respondent
No. 7365
SUPREME COURT OF WASHINGTON
51 Wash. 322, 98 P. 755
January 4, 1909, Decided
Appeal from a judgment of the superior court for Spokane county,
Huneke, J., entered March 7, 1908, dismissing a prosecution for
the violation of an ordinance, upon sustaining a demurrer to the
complaint.
CONSTITUTIONAL LAW -- CLASS LEGISLATION -- POLICE POWER --
ORDINANCES -- FALSE REPRESENTATIONS BY EMPLOYMENT AGENCIES. In an
ordinance to regulate and license employment agencies, a section
making it a misdemeanor for the keeper of an employment agency to
make wilful misrepresentations, or to wilfully deceive any person
seeking employment, and take a fee for such employment, is
unconstitutional; since it is not general and impartial in its
operation, but operates upon one class to the exclusion of others
in respect to a penal act common to all classes of business, and
exceeds the reasonable limit of police regulations.
L. R. Hamblen, F. D. Allen, and Harry A. Rhodes, for appellant.
J. M. Geraghty and Alex M. Winston, for respondent.
CHADWICK, J. FULLERTON, MOUNT, and DUNBAR, JJ., concur. HADLEY,
C.J., and CROW, J., took no part. CHADWICK
{*322} Defendant was arrested and charged with the violation of
an ordinance of the city of Spokane, Washington, entitled, "An
ordinance licensing and regulating the keepers of employment
offices and the business of employment agencies in the city of
Spokane, providing a penalty {*323} for the violation thereof,"
etc. Among other matters covered by the ordinance, it is
provided:
"Sec. 7. It shall be unlawful for any person keeping an
employment office to make any wilful misrepresentations to any
person seeking employment through such office, or to wilfully
deceive any person seeking employment through such office, and
take a fee for such employment." Ordinances, Spokane No. A2633.
Defendant was convicted before the police magistrate of the city;
whereupon he appealed to the superior court. In that court he
demurred to the complaint upon the ground that it did not state
facts sufficient to constitute a cause of action. The demurrer
was sustained, the defendant discharged, and from a judgment of
dismissal, the city has appealed.
The charter provisions relied upon to sustain this prosecution
are as follows:
"Sec. 53. To regulate or prohibit the carrying on within the
corporate limits of the city, of occupations which are of such a
nature as to affect the public health or good order of the city,
or to disturb the public peace, and which are not prohibited by
law; and to provide for the punishment," etc.
"Sec. 55. To provide for the punishment of all disorderly conduct
and of all practices dangerous to the public safety or health,
and make all regulations necessary for the preservation of public
morality, health, peace, and good order," etc.
While no account of it was taken in the court below, subd. 5, §
59, "To license, tax, regulate, and control hawkers, peddlers, .
. . and all other classes of business not otherwise in this
charter provided for," is now urged as sufficient in itself, or
when taken in connection with the others, to warrant a conviction
and sentence. Assuming that it is within the police power of the
city to enact an ordinance to protect the citizen from frauds,
impositions, wilful misrepresentations, and deceits, § 7 of the
ordinance in question cannot be sustained. It is a fundamental
proposition that an ordinance must be fair in its terms,
impartial in its operation, {*324} and general in its
application. Dillon, Municipal Corporations, 322; McQuillan,
Municipal Ordinances, 193. The ordinance before us assumes to
license and regulate the business of employment agencies. This
has been held to be a proper exercise of the police power of the
state. Price v. Pcople, 193 Ill. 114, 61 N. 5. 844. But § 7 goes
further. It defines a common law crime and provides a penalty for
its infraction; not for all who may be guilty of a like offence,
but the employment agent who shall, by wilful misrepresentation
or deceit, obtain the money of another. It cannot be denied that
the business of the employment agent is a legitimate business, as
much so as is that of the banker, broker, or merchant; and under
the methods prevailing in the modern business world, it may be
said to be a necessary adjunct in the prosecution of business
enterprises. The vice of the section under discussion lies in
this, that it makes an act criminal in one who may be engaged in
a lawful business, while the act committed under like
circumstances by another may not be so. A business may be
classified by ordinance under the police power of a state if the
object of the legislation is revenue, and all necessary and
proper penalties may be provided to insure its due enforcement.
But if the object is regulation merely, such classification will
not be tolerated. In re Camp, 38 Wash. 393, 80 P. 547.
It was frankly admitted in the argument of this case that § 7 was
enacted for the purpose of regulating the business of employment
agencies. When exercising its power to regulate a business, the
municipality may classify subjects of legislation, but the law
must treat alike all of a class to which it applies, and must
bring within its classification all who are similarly situated or
under the same condition. From the very nature of things, there
can be no dissimilarity of condition or situation between the
employment agent who indulges in a false pretense and any other
person who resorts to deceit or fraudulent representations to
accomplish a wayward purpose.
{*325} "The classification must be based on some reason suggested
by a difference in the situation and circumstances of the
subjects treated, and no arbitrary distinction between different
kinds or classes of business can be sustained, the conditions
being otherwise similar." State v. Sheriff of Ramsey County, 48
Minn. 236, 51 N.W. 112.
Under the rule just quoted, those engaged in a business lawful
and orderly in itself, although subject to license and
regulation, cannot be made a class upon which a penal statute
shall operate to the exclusion of others; for the crime defined
is not common to the business of employment agencies, but common
to all, and to be sustained must include within its terms all who
may be likewise guilty. It has been held that "an ordinance which
would make the act done by one penal and impose no penalty for
the same act done under like circumstances by another, could not
be sanctioned or sustained because it would be unjust and
unlawful." Tugman v. Chicago, 78 Ill. 405; Chicago v. Rumpff, 45
Ill. 90, 92 Am. Dec. 196; May v. People, 1 Colo. App. 157, 27 P.
1010; McQuillan, Municipal Ordinances, 193.
While the cases cited were all upon a different state of facts,
in that they sought to exempt a class within a class, yet the
principle applies with undiminished force to the case at bar.
This is apparent when it is remembered that it is the act with
which the law is concerned, rather than the business in which one
may be engaged when he commits it. It is the law that stands at
the bar of this court for judgment; not the respondent. To
sustain § 7, it must be measured by the general welfare clauses
of the charter hereinbefore quoted, and when so graduated it
cannot meet the test. It makes the act of one engaged in a
particular business criminal, while the same act committed by
another in a different business may go unchallenged by the city.
If the respondent is guilty, those aggrieved must resort to the
general law of the state for a remedy. Subd. 5 of § 59 can have
no application here. The only question open under § 7 is whether,
in the exercise {*326} of its authority, the city has gone beyond
the reasonable and constitutional limit of police regulation. We
decide that it has done so.
The judgment of the lower court is affirmed.
DISPOSITION
Affirmed.
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