City of Seattle v. Hill

435 P.2d 692, 72 Wash. 2d 786, 1967 Wash. LEXIS 866

• Court: Washington Supreme Court
• Decided: December 21, 1967
• Docket: 38978
• Status: Published

Opinions

Hale, J.

Is chronic addictive alcoholism a disease? Is it a disease that relieves one of liability under the criminal laws prohibiting drunkenness and disorderly conduct in public? Are city ordinances which forbid public drunkenness, and disorderly conduct induced by drunkenness, unconstitutional when applied to chronic addictive alcoholics? This case began with one of the two million arrests for public intoxication made annually in this country. See President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime (1967), at 233.

Arrested and convicted of unlawful public drunkenness in Seattle Municipal Court and sentenced to 180 days in jail, the defendant appealed to and was tried de novo by the superior court sitting without a jury. Urging that he was helpless to avoid violating the ordinance because of his addiction to alcohol, he now appeals his superior court conviction.

It was close to midnight, May 4, 1966, when a citizen, accosting Patrolman Robert F. Wegner as he walked his beat, told him that a man was down. Hurrying to the 500 block on Virginia Street, the two men saw the defendant lying sprawled on his side with the lower half of his body across a public sidewalk and his head and shoulders on a wooden porch adjacent to it. Officer Wegner tried to arouse the defendant, describing the event in his testimony as follows:

A. He couldn’t be aroused. I spoke to him first and told him to get on his feet and he couldn’t be roused so we had to shake him and after shaking him three or four times he finally opened his eyes. Q. Did you smell any unusual odor about him? A. There was a very strong odor of liquor on him. Q. Was he able to stand and walk normally? A. I asked the man to stand up. He tried and couldn’t stand up. So my partner and I assisted him and held him up. Q. In your opinion Mr. Hill then was under the influence of alcohol? A. Yes, he was. Q. And he was under the influence to such an extent that he could not walk unassisted? A. That’s right. Q. Did you have any conversation with Mr. Hill? Did you ask him anything? A. I asked him what he had been drinking. He said wine and beer. Q. Did he ask you anything? A. I asked him where he lived. He said he figured seven or eight blocks away. Q. Did he ask you to take him home? A. He said, yes, “Take me home.” Q. What did you say to that? A. I said if he couldn’t make it home by 'himself, which he couldn’t do because he couldn’t walk, that I would have to put him in jail. Q. And so then you did? A. Yes, we took him to the call box on the corner, rang for the wagon, and the wagon crew took him to jail.

Mr. Hill, the defendant was semiconscious when first seen by the policeman and his citizen assistant. Aside from being drunk, semicomatose and lying across a public sidewalk at a late and unusual hour, the defendant was not disorderly; neither was he noisy, boisterous, belligerent nor profane; he was not assaultive or promoting a commotion.

Charged under Seattle ordinance No. 16046, § 1, Seattle City Code 12.11.020, which reads:

It shall be unlawful for any person to be guilty of fighting, drunkenness or of riotous or disorderly conduct, or of any conduct tending to disturb the public peace, or to use any profane or abusive language, or to engage in any act or practice whereby the peace or quiet of the city may be disturbed, or to use any obscene language or be guilty of any indecent or immoral act, practice or conduct tending to debauch the public morals.

the defendant appeals his conviction on the ground that he is a chronic addictive alcoholic; that he is thus suffering from a disease which, he says, renders 'him “powerless to avoid violating the ordinance”; that he was convicted not of an offense but rather of suffering from a condition or being of a status; that his conviction of drunkenness violates Const, art. 1, § 14, forbidding cruel punishments, and the eighth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment; and that, under Const, art. 1 § 3, and the fifth amendment to the United States Constitution, the ordinance under which defendant was convicted and sentenced is an unreasonable exercise of the police power and deprived the defendant of his liberty without due process of law. The challenged ordinance has been on the books since 1907, and under it hundreds of thousands of arrests have been made and convictions entered.

In asserting the hopelessness of his predicament, and the inevitability of its consequences, defendant showed that he had been convicted of drunkenness 98 times; that his total sentences ran to 17% years although he had served only a fraction of this, being repeatedly let out of jail on suspended sentences. He refers to himself as a “chronic drunk” and dates his serious drinking problems from 1946 when his wife divorced him. At age 62, in addition to his 98 convictions for public drunkenness, he has been twice convicted of escaping while a jail trusty. The accumulated unserved time from these convictions amounts to about 5 years, but there appears to be no proceedings pending or threatened to make him serve any part of this.

There is little doubt that defendant shows a fairly typical case history of an alcoholic. But he shows too that he possesses substantial volitional control over his actions and whether he will be found drunk in public. He testified that in 1963 he entered Firland Sanatorium for the treatment of tuberculosis and during an 18 months’ stay there drank no intoxicants. Despite 20 arrests for public drunkenness after leaving the sanatorium, he expressed the opinion on cross-examination that, if he could go 4 years without a drink, he could be cured—but would give no estimate as to the minimal time needed.

Dr. Edward M. Pattison, eminently qualified specialist in psychiatry and the treatment of alcoholism, while emphasizing the inability of an alcoholic to stop drinking once he had started, said that persons so afflicted typically remained sober for periods of 6 to 8 months voluntarily but eventually return to their drinking. Asked why the defendant drank, the doctor said:

One, the chronic addictive alcoholic finds solace and comfort in drinking. There is a certain degree of escape from feelings of guilt and feelings of shame and feelings of loneliness which he finds in drinking which he does not find from normal social relations that you might say the average person would find.

He said, too, that the element of guilt figured largely in the inducement, that guilt

is a common hallmark of all chronic addictive alcoholics, severe feelings of guilt and shame which can only be overcome by taking more alcohol so that one does not experience these feelings.

This creates a cycle, drinking, feeling guilty and shameful about drinking, returning to drinking, again those excessive feelings of guilt and shame, so it sets up a perpetual cycle.

Dr. John H. Lindberg, a specialist in internal medicine, testified that he gave Mr. Hill a physical examination and found no physical evidence of alcoholism, but readily diagnosed him as a chronic addictive alcoholic from his medical history. He said that Mr. Hill, considering his frequent drunkenness over so long a time, showed very little deterioration of the brain cells—a surprising lack of an expected consequence. Dr. Lindberg testified that alcoholism, unrelieved and untreated, produces cirrhosis of the liver, i.e., destruction of liver cells and their replacement by scar tissue, and that this inevitably causes death.

If uninterrupted drunkenness is a direct cause of death, then undeniably frequent periods of confinement in a clean city jail with nourishing food during 20 years of chronic addictive alcoholism, were of beneficial therapeutic effect. Defendant’s medical history contributes to the idea that laws against public drunkenness are designed to protect not only society but the offender too. Although we would not recommend jail confinement as a suitable substitute for medical, psychiatric and social therapy in the treatment of alcoholism, we observe that, in the absence of any other available alternatives, the afflicted person derives considerable benefit and protection from it. So did Mr. Hill.

Undoubtedly a beneficial therapy must have intervened to keep the defendant in so good a physical condition that, after 20 years of chronic addictive alcoholism, his doctor could find no physical symptoms of the sickness and had to rely exclusively on a case history to confirm the diagnosis of chronic addictive alcoholism. It thus seems reasonable to conclude that Mr. Hill’s frequent periods of confinement in jail, following his bouts of drunkenness, were to a large degree responsible for his continuing physical health.

Dr. Lindberg said that Mr. Hill had potentials “whereby he may be able to refrain from drinking but there has been no demonstration of this up until this time.” He said, however, that, even without any outside assistance whatever, there was a 5 per cent chance of successful self-treatment and that developing the will to self-rehabilitation was an important aspect in any treatment of alcoholism. As a physician specializing in internal medicine, with extensive practice in treating alcoholism, he emphasized that the will to recover was very important in achieving success.

Finally, from the testimony of Judge Charles Z. Smith, then of the Seattle Municipal Court and now of the superior court, we note that a very high percentage of persons in King County afflicted with chronic addictive alcoholism are never arrested for drunkenness in public. Judge Smith, applying what is known as the Jellinek formula for ascertaining the degree of alcoholism in a particular person, to statistical data for Seattle and King County, estimated that, of approximately 37,000 alcoholics in King County, 27,000 of them live in Seattle; that, during 1965, about 3,600 individuals accounted for 11,534 convictions of public drunkenness in the Seattle Municipal Court. Judge Smith expressed the opinion that some 23,400 alcoholics in Seattle manage to escape court appearances by posting and forfeiting bail, or drinking where they are not subject to view by the police. On cross-examination, he estimated that 90 per cent managed to escape court appearances on charges of public intoxication. He felt that 99 per cent of the persons actually appearing in Municipal Court on charges of drunkenness were residents of the city’s slums and came from among the lowest income group of the city.

Testifying that, although the initial contact by police with alcoholics in Seattle leads to arrest and confinement, Judge Smith said there are medical personnel and facilities attached to the jail. The city court maintains an orientation and rehabilitation school where physicians and representatives from Alcoholics Anonymous give lectures and hold discussions pointing out the dangers of alcohol to alcoholics and make an effort to rehabilitate them. Attendance at these sessions averages about 70 persons a week, with 110 persons present during the period of greatest attendance.

He described a number of institutions developed for the attempted rehabilitation of alcoholics. These institutions include those of a purely private nature where a course of treatment may cost the patient nearly $1,000, and a number of charitable institutions charging nominal or no fees at all. Among the latter are the Pioneer Fellowship House for Men, the Louie Martin Home and the Yesler Rehabilitation Center. These organizations charging only about $20 per week are, nevertheless, beyond the financial reach of thousands of alcoholics. Such organizations draw some financial support from the State Department of Health, but can, handle only about 159 alcoholics at any one time. Judge Smith recommended that rehabilitative institutions operated at public expense be substituted for the city jail, and include facilities called “detoxification centers.”

Alcoholism is a terrible thing. However it may be classified legally, whether as a sickness, a condition of psychological dependency, or a disease entity, its victims should be treated with compassion. Nearly every adult person knows of some alcoholic who, through the ravages of this affliction, has lost his family, his job, and ruined his career, and who has suffered a marked physical disability and even death from alcoholism. Among its consequences too are the pain and suffering, the humiliation and deprivation inflicted upon his family; and not to be overlooked is the fact that alcoholics have been known to commit serious crimes.

We agree with the defendant, his counsel and witnesses that the establishment of “detoxification centers” run under medical supervision, along with clinics giving medical, psychiatric and social therapies, provide practical and humane alternatives for the treatment of chronic alcoholism in place of the city jail, but that does not solve the problem before us. Our problem is whether the absence of such facilities makes the city laws against public drunkenness unconstitutional as to chronic addictive alcoholics.

Courts recognize the existence of alternatives to jail sentences in dealing with alcoholism. Whether the alternatives are more practical or less practical, more effective or less so in rehabilitating chronic addictive alcoholics, however, does not, we think, present the determinative criteria as to whether the Seattle ordinance under which the defendant was arrested and convicted is unconstitutional.

Defendant, as one of an endless line of alcoholics brought before the city court and thence to jail and from there possibly to one of the rehabilitative facilities, does not establish that his treatment at the hands of the law falls within the eighth amendment to the United States Constitution as cruel and inhuman punishment. He acknowledged that drinking “is kind of a pastime and a habit”; that he did not feel compelled to drink; that for 18 months while in the tuberculosis sanatorium he had not had a drop of liquor and that he knew it was unlawful to appear drunk in public. His evidence showed that he was but one of perhaps 37,000 alcoholics in King County, 90 per cent of whom manage to avoid court appearances or even arrests.

If he is being punished at all, it seems to be largely self-punishment. Defendant, however, says that the law punished him for conduct that he could not control or avoid; that being incapable of avoiding or violating the laws, his affliction, he says, is the legal equivalent of insanity so that laws forbidding public drunkenness cannot constitutionally prohibit conduct which he cannot avoid.

Defendant’s proof, however, is incompatible with his asserted helplessness. He established prima facie that 90 per cent of the chronically addictive alcoholics in Seattle manage to avoid the public eye when drunk and thus avoid conviction. If 90 per cent of a class can do so, the courts cannot categorically exonerate of culpability the remaining 10 per cent of the same class. His evidence contradicts his contention that actus reus, requiring volition, and mens rea, requiring an evil intent, are lacking in his case. See R. Perkins, Criminal Law 652-55 (1957).

Assuming, arguendo, that the defendant may not have possessed the will to avoid drinking to the point of intoxication, his conduct was not so involuntary as to compel him to become drunk in public. Moreover, his drunkenness was an offense malum prohibitum, requiring no mens rea or evil design for conviction. If he possessed the capability of avoiding public drunkenness, the other basic component, that of actus reus, the volitional conduct, was thus present. State v. Lindberg, 125 Wash. 51, 215 Pac. 41 (1923). Defendant did not show that anyone forced the liquor upon him, or practiced a fraud by making him believe that the beverage taken was not an intoxicant. Both his drinking and being found drunk in public appear volitional on his part under the law. That he was a chronic addictive alcoholic did not make it inevitable that he be found drunk or sprawled across a public sidewalk late at night.

Relying largely upon the rationale of Robinson v. California, 370 U. S. 660, 8 L. Ed. 2d 758, 82 Sup. Ct. 1417 (1962), defendant again urges that, being a chronic addictive alcoholic, he is being punished for having a disease or being of a status instead of for committing an offense. We think that the answer to this contention is short and clear. In that case, the State of California, by statute, had made narcotics addiction alone, that is the status of being an addict, punishable as a public offense. In striking down a conviction based on proof of addiction only as constituting cruel and unusual punishment under the Eighth Amendment—made applicable to the state by the Fourteenth Amendment—the Supreme Court sharply delineated the distinction between simply being a narcotic addict and the actions expected of an addict. Holding that, although a state may not punish a mere status or make a criminal offense of what is considered medically to be a disease, the court affirmed the longstanding principle that a state may forbid and punish the conduct ordinarily related to an addiction such as the possession, purchase, sale, or the condition of being under the influence of narcotics. Minnesota ex rel. Whipple v. Martinson, 256 U. S. 41, 65 L. Ed. 819, 41 Sup. Ct. 425 (1921). It is the conduct or actions, not the status or disease, that becomes punishable.

In the instant case, it was Mr. Hill’s conduct, his actions in public while drunk, which caused his arrest and confinement, not his status or condition of being an alcoholic. Thus, when Patrolman Wegner observed Hill sprawled across the sidewalk in a drunken stupor late at night, regardless of any compassion he may have felt for the defendant as an identifiable alcoholic and skid row derelict, he properly arrested Hill for what he was doing and not for what he was.

The officer made the arrest under Seattle ordinance No. 16046, § 1, which does not purport to make an offense of being an alcoholic, but rather to preserve the public peace and welfare by prohibiting public drunkenness. Although lying in a stupor on a sidewalk may well be an indication of alcoholism, it is evidence of drunkenness in a public place, much the same as loud, boisterous, profane or belligerent conduct, likewise prohibited in the ordinance, may also indicate drunkenness in public. Behavior is what counts; the ordinance regulates behavior only. We see no reason under the constitutions of the state and the United States why the communities of this state may not adopt and enforce legislation to protect themselves from the nuisance, offensive misconduct, and serious dangers at times associated with public drunkenness.

Looking now from a different angle at defendant’s claim that his conduct was involuntary and unintentional and, therefore, not criminally culpable, we think it to be well-established law that

Drunkenness is not to be regarded as involuntary . . . merely because it is the result of an inordinate and irresistable appetite for drink, overcoming the will and amounting to a disease. Clark and Marshall, Crimes § 6.10 (6th ed., M. Wingersky 1958).

Drunkenness in public falls within that category of offenses defined to preserve the public peace, health, welfare and morals and protect the citizenry from affront, nuisance and danger. Like many other forms of public disorder, intent is not an element and, therefore, need not be proved. Once the acts constituting the offense have been proved beyond a reasonable doubt, the offense has been established and a judgment of guilty may thereupon enter. This rule is true of nearly all crimes malum prohibitum.¹ Referring to “public welfare offenses” such as public intoxication, the Supreme Court in Morissette v. United States, 342 U. S. 246, 256, 96 L. Ed. 288, 72 Sup. Ct. 240 (1952), said:

[Legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities. . . . [CJourts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime.

Consequently, since intent is not an element of the offense, it need not be proved to establish drunkenness in public.

Laws forbidding drunkenness in public bear a manifest relationship reasonably connected to the public peace, health, safety, morals and welfare and thus fall within the city’s police power to enact and enforce them. Lenci v. Seattle, 63 Wn.2d 664, 388 P.2d 926 (1964); Ragan v. Seattle, 58 Wn.2d 779, 364 P.2d 916 (1961); Campbell v. State, 12 Wn.2d 459, 122 P.2d 458 (1942); Minnesota ex rel. Whipple v. Martinson, 256 U. S. 41, 65 L. Ed. 819, 41 Sup. Ct. 425 (1921). Bearing thus a rational relationshp to the ends sought to be attained, laws against public disorder and disorderly conduct fall within the legitimate exercise of the police power and do not violate the fifth amendment to the United States Constitution or Const, art. 1, § 3.

Since the defendant appreciated the nature and consequences of his violation, and received a fair trial, we do not see how the conviction deprived him of property or liberty without due process of law or denied him the equal protection of the laws under the Fifth Amendment.

This state is committed to the rule that every sane person is responsible for his voluntary acts. State v. Mays, 65 Wn.2d 58, 395 P.2d 758 (1964). If one is capable of distinguishing between right and wrong and knows the nature and moral quality of his actions, he is deemed sane under the M’Naughten rule, a doctrine adhered to by this and the great majority of courts. State v. White, 60 Wn.2d 551, 374 P.2d 942 (1962), cert. denied, 375 U. S. 883, 11 L. Ed. 2d 113, 84 Sup. Ct. 154 (1963); Leland v. Oregon, 343 U.S. 790, 96 L. Ed. 1302, 72 Sup. Ct. 1002 (1952), 45 A.L.R.2d 1447. If we were to condition this rule by relieving chronic alcoholics of responsibility for their public misconduct while drunk, we would inevitably, under the same reasoning, be forced to relieve them of the legal consequences of other crimes committed while under the influence of voluntarily consumed intoxicants.

Although the defendant says he was under a compulsion to drink, there is no proof, nor is it to be inferred, that anyone forced the liquor upon him. ■ Despite his claimed addiction, he had the power to make a choice. When one chooses to drink, he must in law be deemed to have voluntarily invited the consequences of that drinking. 8 A.L.R. 3d 1236.

Only in a limited way may voluntary intoxication be deemed to affect the degree of criminal culpability. In a statute expressly declaring that voluntary intoxication does not reduce the criminality of one’s conduct, the fact of intoxication may be considered if intent or motive are elements of the crime charged. RCW 9.01.114 sets forth the policy of this state concerning intoxication as a defense to a crime:

No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such purpose, motive or intent.

We applied the foregoing statute in State v. Shelton, 71 Wn. 2d 838, 431 P.2d 201 (1967), but refused to exonerate the defendant of criminal liability where, on being tried for assault in the first degree for shooting and seriously wounding a person, the defendant sought to prove that he could not be held liable for his conduct because he had been drinking heavily for several days.

Accordingly, in our view, chronic addiction to alcohol is not the legal equivalent of insanity. When the alcoholic violates the criminal code, except for RCW 9.01.114 allowing him to show intoxication only as a factor to be considered by the jury in weighing the questions of intent or motive, the alcoholic is held to the same standards of responsibility- as everyone else. Just as voluntary intoxication does not serve to exonerate one of murder, assault, larceny, burglary or other serious crimes, it does not relieve one of the consequences of the offense of being drunk in public. Although it may be regarded as a disease entity for medical purposes, chronic addictive alcoholism is not such a disease that renders its victims immune from prosecution for public drunkenness.

Finally, we consider defendant’s contention that, if, as a matter of policy, this court will prevent the arrest and imprisonment for public drunkenness of persons suffering from chronic addictive alcoholism, it will compel society to substitute a more humane and enlightened form of treatment and induce rehabilitative measures in place of confinement in the city jail. Citing Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966), which held that a chronic alcoholic cannot be convicted of public intoxication since his “drunken public display” was involuntary because of his disease, defendant urges that we take a similar view. That case, treating the defendant’s drunken behavior as not the act of the defendant but likening it to the “movements of an imbecile or a person in a delirium of a fever,” overturned a conviction for drunkenness in public as a cruel and unusual punishment violative of the Eighth Amendment.

Defendant also cites Easter v. District of Columbia, 361 F.2d 50 (D. C. Cir. 1966), for the idea that chronic alcoholism was ipso facto a complete defense to the charge of public drunkenness. But that ruling appears based on a “Rehabilitation of Alcoholics” statute, 61 Stat. 744, ch. 472, D. C. Code § 24-501, enacted to provide for commitment to and treatment in alcoholic clinics in the District of Columbia. There a statute defined alcoholism within the District of Columbia as a disease, and authorized the courts of the district to commit alcoholics to clinics established by the statute. Thus, the basic holding in Easter supports the proposition that the state legislatures may enact similar legislation and establish similar procedures and clinics under the police power, but sheds very little light on the constitutional problem at hand. An integral part of the rationale supporting the decision is that, in providing for a medical commitment as a substitute for jail confinement, the state, by statute, precludes the courts from “attaching criminality in this jurisdiction [D. C.] to intoxication in public of a chronic alcoholic.”

Although defendant’s proof in the instant cause refutes his contention that he could not avoid transgressing the law, and that he was helpless to prevent himself from falling into a drunken stupor on the sidewalk, we believe his policy arguments to be equally unpersuasive. First, we have no information whether in blocking arrests for drunkenness in public the courts in Driver v. Hinnant, supra, and Easter v. District of Columbia, supra, have compelled the establishment of a markedly improved procedure for curtailing public drunkenness and treatment of alcoholism. Have those decisions effected any changes in the incidence of alcoholism in the District of Columbia and throughout the Fourth Circuit? It may be the decisions, instead of reducing alcoholism by ordering medical treatment, simply deprive society and the alcoholic of what limited therapy is now available by means of jail confinement, leaving more or less of a vacuum in the handling of intoxicated persons. Indeed, Easter v. District of Columbia, supra, describes the futility of the situation where, after observing that the statute defining and authorizing medical treatment for alcoholics, has been on the books for nearly 20 years, it says, at 53:

We find no basis for judicial repudiation of the Act of 1947. The fact that in the intervening years the facilities contemplated by the Act have not been made available does not detract from the legal effect of those provisions of the Act which define the nature of the sickness [alcoholism]. (Italics ours.)

We cannot determine whether the care and treatment of alcoholics in the nation’s capitol and in the communities of the Fourth Circuit is now better than in Seattle, or whether those communities have shown a marked decrease either in alcoholism or criminality arising from alcoholism which may in any way be reasonably attributed to judicial decision.

The policy argument poses another question. Is it proper for the courts to try to compel the adoption of legislation and the expenditure of public funds for the attainment of seemingly desirable ends by refusing to uphold existing legislation? Is this a legitimate use of the judicial power? We think not. The instant case demonstrates the soundness of the rule that courts are not concerned with the wisdom of a statute but only with its meaning and validity. That the judges can think of a better way to attack society’s ills than the methods adopted by the executive and legislative branches of government gives them no license to employ the judicial power in forcing their views upon society. State ex rel. Bolen v. Seattle, 61 Wn.2d 196, 377 P.2d 454 (1963).

Obviously, the courts ought not invalidate legislation simply in the hope of compelling better legislation. Suppose this court, as a matter of public policy, were to strike down Seattle’s ordinance prohibiting public drunkenness. What, then, are the alternatives? The courts levy no taxes, appropriate no moneys, employ no doctors, nurses, social workers and attendants, operate no hospitals, clinics, detoxification centers, and have no personnel or facilities under their direction for the care and treatment of chronic addictive alcoholics or for the protection of society from their misbehavior. Having created the vacuum, the courts are without means to refill it.

And what of the alcoholic himself? Is the Seattle ordinance against public drunkenness completely insensitive to him? Defendant’s frequent periods of internment in the city jail, away from liquor and with nourishing food, undoubtedly have done much to keep him alive and in good physical health. Better a clean warm jail on a rainy, winter night than a miserable wet gutter. His arguments that there are better ways to handle alcoholics than methods now employed by the city are undoubtedly sound, but should be addressed to the legislative and executive branches of government where the money is raised, appropriated and allocated, personnel engaged and facilities established to carry out the rehabilitative policies.

Grave as are the consequences of alcoholism, and distressing as the affliction may be, there is in it some great area for self-cure and self-treatment. Where an alcoholic may refuse to drink, or, by exercise of will, arrest his sickness, persons suffering from cancer, tuberculosis, arthritis, multiple sclerosis, insanity, mental retardation and a host of other diseases and incapacities have no such option. Robinson v. California, 370 U. S. 660, 8 L. Ed. 2d 758, 82 Sup. Ct. 1417 (1962). To the people, through their elected representatives, then, must be left the decision as to the amount of taxes to be raised and the share of the public purse to be spent on the care of alcoholics, and what amounts of money and talent shall be devoted to other governmental enterprises affecting the public safety, health, welfare and morals. Courts ought not determine by decree what is left by the constitution exclusively to the decision of the legislative and executive branches of government.

It is thus for the legislative and executive branches of government to decide how much money, talent and physical facilities will be allocated to the treatment of alcoholism and how much to the alleviation of pain and misery and suffering elsewhere. The constitution in placing these powers of decision there wisely kept from the courts any duty or power to determine such questions. The Seattle city ordinance against public drunkenness, in our opinion, therefore, is a constitutional exercise of the police power applicable to chronic addictive alcoholics.

Affirmed.

Donworth and Hunter, JJ., concur.

Weaver, J., concurs in the result.

1 There is a distinction between volition and intent. In the case of public drunkenness, while it would be no defense to show that the defendant had formed no mental purpose to sprawl on the sidewalk in a drunken stupor, he would, nevertheless, possibly have a defense had he shown that he became intoxicated within the quiet confines of his home and abductors carried him therefrom by force and left him upon the sidewalk helplessly drunk.