Patton v. City of Bellingham

38 P.2d 364, 179 Wash. 566, 98 A.L.R. 1076, 1934 Wash. LEXIS 797

• Court: Washington Supreme Court
• Decided: December 6, 1934
• Docket: No. 25022. En Banc.
• Status: Published

Opinions

Steinert, J.

This action was brought to test the constitutionality and validity of a statute and an ordinance, respectively, restricting the hours of opening and closing barber shops. Upon the commencement of the action, an order temporarily restraining* enforcement of the ordinance was obtained. A subsequent trial before the court resulted in findings and conclusions, based upon which a decree was entered dissolving* the temporary restraining order and denying any relief under the complaint. This appeal followed.

The statute involved reads as follows:

“The governing body of any city of the first, second, third and fourth class in the state shall have power to regulate and fix by ordinance the hours and time of opening* and closing of barber shops on week days [and] to provide that any violation of such ordinance shall be a misdemeanor, and to fix and enforce penalties within the limit of the jurisdiction of such cities for such violation.” Ch. 120, Laws of 1933, p. 448, Rem. 1934 Sup. § 9213-2 [P. C. § 427g].

Bellingham is a city of the first class. Pursuant to the passage of the above act, the city, through its council and mayor, enacted ordinance No. 5363 (amending ordinance No. 5333), which provided, among other things, that it should be unlawful to open a barber shop earlier than eight o’clock a. m. or to close the same later than six o’clock p. m. on week days other than Saturdays, or to close it later than seven o’clock p. m. on Saturdays or days preceding a holiday. The ordinance further provided for inspection of barber shops by a sanitary inspection board, or any of its members, for the purpose of ascertaining their sanitary condition. By ordinance No. 5333, violation of the provisions relating to opening and closing, or refusal to permit inspection, subjected the person convicted thereof to a fine or imprisonment, or both.

Appellant owns and operates a barber shop in the Henry Hotel Building in Bellingham. He himself works as a barber in the shop, and also employs, under oral contract, an additional barber therein. For several years, appellant has kept his shop open from eight a. m. to eight p. m. on all week days except Saturdays, and from eight a. m. to nine p. m. on Saturdays and days preceding holidays. His employee, however, works only from ten a. m. to closing time, with an hour off for lunch and a half hour off for dinner, making his total working time eight and one-half hours on ordinary days and nine and one-half hours on Saturdays and such days as precede holidays. Shops in Bel-lingham under the union rule are open from eight a. m. to six p. m. on ordinary days, and from eight a. m. to seven p. m. on Saturdays and days preceding holidays. The actual working time per day of appellant’s employee is a half hour less than that of employees in union shops.

Appellant’s shop is patronized by all classes of customers, including traveling salesmen, highway workers, road construction employees, mill workers, tourists, clerks, professional men and farmers, many of whom can not, or at any rate do not, have their barber work done until after six or seven o’clock in the evening. So far as appellant is concerned, at least one-third of his business is done after the closing hours specified in the ordinance.

Evidence was introduced by both parties relative to the effect upon the barber business of keeping shops open beyond the time limited by the ordinance. The evidence was necessarily expressive of the opinion of the various witnesses, and naturally their opinions differed materially. The court made findings to the effect that the earnings of barbers in Bellingham did not, at that time, exceed from six to fifteen dollars a week; that extending the opening and closing hours generally throughout the city would not materially increase their revenue; that, if a few shops remained open after a fixed hour, all others would be required to do likewise, thus necessitating the same employees to be kept in attendance the entire day and thereby increasing their hours of labor; that it was impracticable and unworkable to operate barber shops on a split-shift system; that long working hours, with the attendant fatigue, decreased the efficiency and injured the health of the barber, and therefore led to unsatisfactory and unsanitary conditions and inefficient workmanship and methods; and that the only practical way of limiting the hours of labor of the barber was by limiting the hours during which barber shops should remain open.

As already stated, the evidence on which these findings were based was opinionative in nature. Obviously, the findings did not, in their entirety, constitute a determination of existing facts, but were, in part at least, a prognostication by the court itself of what would be the probable result of the continuance of existing conditions. We mention this here and now because, in deciding this case, we do not take issue with the trial court in that which is intrinsically factual, but only in that which is a matter of deduction.

Appellant, by his assignments of error, makes the contention that the statute and ordinance in question violate the following constitutional provisions: (a) Art. 1, § 10, of the Federal constitution, and Art. 1, § 23, of the state constitution, relating to the impairment of contracts; (h) amendment 14, § 1, of the Federal constitution and Art. 1, 3 and 12 of the state constitution, relating to equal protection, abridgment of privileges, and due process of law.

In presenting this case to us on appeal, both parties go upon the theory that, in the enactment of, and in the attempt to enforce, the ordinance in question, the city was proceeding under its police powers. Accepting that theory, it becomes unnecessary for us to consider or pass upon the constitutionality of the statute, for whatever authority the city has in respect of its police powers, it has by virtue of Art. XI, § 11, of our constitution, independent of any statutory grant. Commenting upon that provision of the constitution, we said in Detamore v. Hindley, 83 Wash. 322 (326), 145 Pac. 462:

“This is a direct delegation of the police power as ample within its limits as that possessed by the legislature itself. It requires no legislative sanction for its exercise so long as the subject-matter is local, and the regulation reasonable and consistent with the general laws.”

The following cases are to the same effect: Sherman, Clay & Co. v. Brown, 142 Wash. 37, 252 Pac. 137; Seattle v. Ford, 144 Wash. 107, 257 Pac. 243; Seattle v. Gervasi, 144 Wash. 429, 258 Pac. 328; Bungalow Amusement Co. v. Seattle, 148 Wash. 485, 269 Pac. 1043, 60 A. L. R. 166; Brennan v. Seattle, 151 Wash. 665, 276 Pac. 886. It is not contended, nor do we apprehend that it could be, that the purpose of the statute was to confer authority upon the city to prescribe regulations other than such as are “reasonable and consistent with the general laws.”

It will be observed that the legislature has not at tempted by the statute directly to prescribe or enforce any such regulations as are set forth in the ordinance. Whether the legislature could legally have done so is a question that it is not necessary to decide here.

Confining ourselves, then, to the ordinance and its effect, we have no hesitancy in saying, first, that the provisions found therein, with reference to the inspection of barber shops, constitute a valid exercise of the city’s police power, and, as such, were reasonable and proper.

In State v. Sharpless, 31 Wash. 191, 71 Pac. 737, 96 Am. St. 893, there was involved the constitutionality of a statute which made it unlawful for any person either to follow the occupation of barbering without having first obtained a certificate of registration, or, following it, to fail to heed certain sanitary requirements. It was said in the course of the opinion that the legislature may authorize cities and towns to regulate the occupation of barbering therein, or to regulate any occupation affecting the health and morals of the community.

In State v. Walker, 48 Wash. 8, 92 Pac. 775, the same statute was again questioned, and the court in the course of its opinion remarked that the occupation of barbering fell within that class of trades, professions or callings which may be regulated by law “for public health, comfort and safety, ’ ’ and not within that class which may not be so regulated without depriving a citizen of his natural rights and privileges guaranteed him by fundamental law. In the same case, however, it was held that the provision requiring the applicant to have “studied the trade for two years as an apprentice under or as a qualified and practicing barber in this state or other states,” was unreasonable and arbitrary, and therefore void. It will be observed that, while these two cases hold that the legislature may grant police powers to cities, later cases, already cited herein, affirm the principle that cities have snch powers, fully and amply, by virtue of the constitution, and independent of any grant by the legislature.

The grant of police power to a city carries with it the necessary implication that its exercise must be reasonable. Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462; Seattle v. Ford, 144 Wash. 107, 257 Pac. 243; ,State v. Spiller, 146 Wash. 180, 262 Pac. 128; 2 Dillon on Municipal Corporations (2d Ed.), §589; 43 C. J. 213, 228. Where the provisions of an ordinance are more specific and detailed than the expression of general power conferred, the court will determine the reasonableness of such provisions. 2 McQuillan on Municipal Corporations (2d Ed.), § 762.

The question, then, presents itself here whether the provision with reference to the time of opening and closing barber shops is reasonable and proper for the protection of the health and general welfare of the public, or whether it is unreasonable and arbitrary and an unlawful interference with the rights of the individual.

Whether the facts of a particular case warrant the assertion of police power is a judicial question to be resolved by the courts. Bowes v. Aberdeen, 58 Wash. 535, 109 Pac. 369, 30 L. R. A. (N. S.) 709; Freund, Police Power, § 142; 2 Dillon on Municipal Corporations (2d Ed.), § 599. In Seattle v. Ford, supra, we said, on p. 110:

“The courts will go-far in sustaining the exercise of the police power for the preservation of the public health and safety, and in so doing private rights in conflict therewith are overridden; but on the other hand, the courts are equally concerned to see that, under the guise of protecting the public, private business — especially that carried on upon private property — is not arbitrarily restricted or interfered with.”

In Brown v. Seattle, 150 Wash. 203, 272 Pac. 517, there was involved the validity of a city ordinance which provided that it should be unlawful for any meat shop to keep open for business on any day except between the hours of seven a. m. and six p. m. Holding that such provision was unconstitutional as being an unreasonable interference with the rights of the plaintiff therein, we said, on p. 211:

“Regulatory legislation attempting to control a lawful business which does not fall within the objectionable or prohibitable classes, and which is conducted upon private property, must be reasonably adapted to promote the public health and general welfare in some particular manner, and must tend to prevent some existing or directly anticipated menace thereto. What is a reasonable exercise of the police power under these circumstances depends largely upon the nature or character of the undesirable conditions to be overcome or prevented. Whyte v. City of Sacramento, 65 Cal. App. 534, 224 Pac. 1008. There must also be some logical connection between the object sought to be accomplished by the legislation and the means prescribed to accomplish such purpose.”

Numerous authorities are cited in the Brown case . supporting the above quotation, to which may be added the case of Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205.

While the interest of the public may be likened unto an irresistible force which compels where it requires, it nevertheless must, under constitutional provisions, both Federal and state, respect the rights of the individual. While the latter may not occupy the fixity of an immovable object, they nevertheless have the protection and sanction of the fundamental law of the land, and they recede before no less a force than that of public necessity.

“To sustain the individual freedom of action contemplated by the Constitution, is not to strike down the common good but to exalt it; for surely the good of society as a whole cannot be better served than by the preservation against arbitrary restraint of the liberties of its constituent members.” Adkins v. Children’s Hospital, 261 U. S. 525 (561), 43 S. Ct. 394, 67 L. Ed. 785, 24 A. L. R. 1238.

The occupation of barbering is a lawful business, and so far from being an obnoxious one, it is now considered well-nigh indispensable. It may be conceded, as we have already conceded, that its relation to the public is such as to render it amenable to proper regulation, to the end that the public may be protected against the spread of communicable diseases and unsanitary practices. In so far as the ordinance seeks to require that such shops shall be operated in a clean and sanitary manner, and by clean and competent barbers, it is a wholesome measure and a valid exercise of the police power. But in our opinion, the avowed object of the ordinance bears no real or substantial relation to the reasonable protection of the public. It belongs, rather, in the category of unreasonable restrictions upon the right of a citizen to engage in a useful and lawful calling and to acquire and possess property and to so use it as will not interfere with the rights of others. The ordinance seeks not merely to regulate a business, but to dictate its operation.

“The right to labor or earn one’s livelihood in any legitimate field of industry or business is a right of property, and any lawful or unreasonable interference with or abridgment of such right is an invasion thereof, and a restriction of the liberty of the citizen as guaranteed by the Constitution.” Yee Gee v. City and County of San Francisco, 235 Fed. 757, 759.

It is contended by respondents that it is necessary to limit the hours that a barber may labor, in order to prevent fatigue, with its consequent hazards to the general public. It will be observed that the ordi nance does not by its terms limit tbe hours of labor at all, but merely attempts to limit the time within which a shop may he kept open. If a shop remained open twenty hours of the day, working two shifts of ten hours each, or kept open twenty-four hours of the day, working three shifts of eight hours each, or four shifts of six hours each, there would be no violation of any regulation as to the hours of labor.

It may be true, as suggested in the testimony of some of the witnesses, that the enforcement of the ordinance would serve to deflect a portion of appellant’s business to other shops of the city, and thus secure a fairer division. But that result, even though it should follow, is, in our opinion, no valid reason for compulsory interference with the lawful business of the individual. If the principle thus contended for be upheld, then the city council could limit the opening and closing hours of shops to any period that it saw fit, with the view of equalizing the incomes of all. Such legislation, if upheld, might be the first installment of a plan or system by which all shops would be required to pool their revenues for equal division. In our opinion, the provisions of the ordinance requiring the shops to close at specified hours bear no reasonable relation to the public health or general welfare. The evidence in the case upon which the findings of the court were based rests upon conjecture, and not upon anything of a substantial nature.

It is suggested by respondents in their brief that the closing of the shops at an early hour would facilitate inspection by the authorities and members of the board of inspection. But certainly ample opportunity now exists for reasonable inspection, and certainly the situation does not call for an absolute closing of the shops in order that inspectors may go upon the premises; otherwise, the right of inspection would not be an incident of regulation, but would be a lever by means of wbicb tbe business would be largely controlled.

The following cases bave been called to our attention, involving ordinances containing provisions practically identical with those with wbicb we are bere concerned: Falco v. Atlantic City, 99 N. J. Law 19,122 Atl. 610; Chaires v. City of Atlanta, 164 Gra. 755, 139 S. E. 559, 55 A. L. R. 230; State ex rel. Newman v. Laramie, 40 Wyo. 74, 275 Pac. 106; City of Alexandria v. Hall, 171 La. 595, 131 So. 722; Knight v. Johns, 161 Miss. 519, 137 So. 509; McDermott v. City of Seattle, 4 Fed. Supp. 855.

Tbe first of these cases supports tbe contention of tbe respondents. Tbe remaining five bold tbe ordinances in question either unconstitutional or else unreasonable and void. Tbe cases differ somewhat in their reasoning and in tbe grounds on wbicb their conclusions are rested. All, however, reach tbe same result. We bave hereinabove adopted some of tbe statements made in several of them, and therefore will not take further space in analyzing or quoting from them.

We are of tbe view that tbe provisions of tbe ordinance relating to tbe hours of opening and closing barber shops are unreasonable and arbitrary, and consequently void. Tbe decree of tbe trial court is therefore reversed, with direction to enter in its place a decree permanently enjoining the enforcement of tbe ordinance to tbe extent last mentioned.

Beals, C. J., Main, Mitchell, and Tolman, J J., concur.