State v. Bowen & Co.

149 P. 330, 86 Wash. 23, 1915 Wash. LEXIS 1178

• Court: Washington Supreme Court
• Decided: June 9, 1915
• Docket: No. 12535
• Status: Published

Opinions

Holcomb, J.

Appellant was prosecuted in the superior court and convicted of a violation of chapter 139, Laws of 1907, p. 266 (Rem. & Bal. Code, §§ 7024-7035), known as the commission merchants’ law, in having carried on the business of commission merchant without first having given bond and procured a license as required by said law. Appellant demurred to the information upon the ground that the act in question is invalid, unconstitutional, and void, for the reasons, (1) that it violates articles 4, 5, and 7, and § 1-of art. 14, of the amendments to the constitution of the United States, and §§ 3, 7, 9, 17, and 21 of art. 1 of the constitution of the state of Washington; and (2) that it is an attempt to regulate interstate commerce. The court overruled the demurrer. At the trial appellant admitted all the allegations of fact contained in the information, and also admitted additional facts not alleged,-to wit, that, at the time in question, appellant’s principal business was to sell farm, dairy, orchard, and garden products on commission, and that the person from whom he received the produce in question was then a resident of the state of Washington.

Appellant concedes the right of the legislature to pass proper laws reasonably tending to regulate such occupations and businesses as affect the health, safety, comfort, or welfare of the public in general, but insists that the business attempted to be regulated by the law in question is a harmless and ordinary business or calling, and that to justify interference by the state with such occupation at least two conditions must clearly appear: (1) that the interests of the public generally, as distinguished from those of a particular class, require such an interference; and (2) that the regulation attempted is reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

Appellant’s brief, while being very forceful and presenting a painstaking review of the authorities upon the questions involved, follows no set order of presentation, and we shall not attempt to follow any set order.

Great reliance seems to be placed in the holdings of this court in the case of State ex rel. Richey v. Smith, 42 Wash. 237, 84 Pac. 851, 114 Am. St. 114, 5 L. R. A. (N. S.) 674, involving the plumbers’ licensing law, and In re Aubrey, 36 Wash. 308, 78 Pac. 900, 104 Am. St. 952, involving the horseshoers’ licensing law. Those cases are very illuminating and correctly state the principles of law applying to the regulation of businesses and callings under the police power of the state. The Richey case, as was stated by the court, per Rudkin, J., was where the law obviously attempted to place the control of the plumbing business in the hands of a board to be composed of two master plumbers and one journeyman plumber, who were given power to pass upon the qualifications of other persons desiring to follow that business, and there was no other end in view. The court there said:

“We are satisfied that the act has no such relation to the public health as will sustain it as a police or sanitary measure, and that its interference with the liberty of the citizen brings it in direct conflict with the constitution of the United States.”

The same was true of the horseshoers’ law, passed upon in the Aubrey case. Manifestly there was no relation between the law there in question and the public health, peace, safety, or general welfare. As a general proposition, the questions of the wisdom, necessity, and policy of the law are for the legislature to determine, and if the legislature proceeds regularly, violating no other constitutional restriction or prohibition, the questions of fact as to the wisdom, necessity, and policy of the law are conclusively determined if a state of facts could exist which would justify the legislation in question. Munn v. Illinois, 94 U. S. 113; Home Tel. & Tel. Co. v. Los Angeles, 211 U. S. 265; State ex rel. Beek v. Wagener, 77 Minn. 483, 80 N. W. 633, 778, 1134, 77 Am. St. 681, 46 L. R. A. 442; State v. Pitney, 79 Wash. 608, 140 Pac. 918; Carstens v. DeSellem, 82 Wash. 643, 144 Pac. 934. Authorities could be multiplied to the same effect, but it is. needless.

We may also give assent to the main proposition advanced by appellant, that the enjoyment upon terms of equality with all others in similar circumstances of the privilege of pursuing an ordinary calling or business and of acquiring, holding, and selling property, subject only to its civil liability for debt or damages and the right to contract in respect thereto, is an essential part of its rights of liberty and property, as guaranteed by the fourteenth amendment to the Federal and the corresponding provisions of our state constitution. But the Federal and state constitutional limitations were not designed to interfere with the exercise of the police power of the state for the protection of health, safety, morals, and welfare, and the prevention of fraud. The power which the legislature has to promote the general welfare is very great, and the discretion which it has and may exercise in the employment of means to that end is very large. True, it is not all powerful, while both its power and its discretion must be so exercised as not to impair the fundamental rights of life, liberty, and property, to the end that no man may be compelled to hold his life or the means of living or any material right essential to the enjoyment of life, at the mere will of another,

“and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage.” Yick Wo v. Hopkins, 118 U. S. 356, 370.

The precise bounds of the police power have never been prescribed, nor will the courts attempt to define and prescribe its limitations rigidly. Commonwealth v. Alger, 7 Cush. 53; State v. McFarland, 60 Wash. 98, 110 Pac. 792, 140 Am. St. 909; State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A. (N. S.) 466; State v. Somerville, 67 Wash. 688, 122 Pac. 824; State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 Pac. 861, Ann. Cas. 1913 D. 78; State v. Mountain Timber Co., 75 Wash. 581, 135 Pac. 645; State v. Pitney, 79 Wash. 608, 140 Pac. 918; Carstens v. DeSellem, supra.

Every possible presumption is in favor of the validity of the statute until the contrary is shown beyond a reasonable doubt. One branch of the government cannot encroach on the domain of another without danger. The safety of our institutions depends in no small degree on a strict observance of this salutary rule. Sinking-Fund Cases, 99 U. S. 700; Livingston v. Darlington, 101 U. S. 407; Powell v. Pennsylvania, 127 U. S. 678; State v. Carey, 4 Wash. 424, 30 Pac. 729.

As to the exercise of the police power, it suffices in general to say that the courts will arrest the execution of the statute when it manifestly conflicts with the constitution, either state or Federal; but the courts cannot run a race of opinion upon points of right, reason, and expediency with the law-making power. Cooley, Constitutional Limitations (7th ed.), 236.

“It is true that equality of rights, privileges, and capacities should be the aim of the law, and if . . . special burdens or restrictions are imposed in any case it must be presumed that the legislature designed to depart as little as possible from fundamental maxims of government.” Cooley, Constitutional Limitations (7th ed.), 562.

The particular business here sought to be regulated is, of course, a legitimate and, in many respects, a necessary and important business. The business of producing farm, garden, orchard, and dairy products is one of the most important industries of the state. The producer cannot ordinarily be both producer and marketer. The legislature seems to have found that there exists a class of factors or merchants whose principal business is that of selling such produce on commission, and that certain abuses have grown up in that business ; so, to provide regulation and prevent such abuses, the act in question was passed. Such an act, similar in most of the provisions, was sustained in Minnesota, in State ex rel. Beek v. Wagener, supra, and a similar act was also sustained in Illinois, in Lasher v. People, 183 Ill. 226, 55 N. E. 663, 75 Am. St. 103, 47 L. R. A. 802. A similar act in Michigan was held bad, in People ex rel. Valentine v. Coolidge, 124 Mich. 664, 83 N. W. 594, 83 Am. St. 352, 50 L. R. A. 493. Bringing to aid the presumptions in favor of the legislative power, and, also, the presumption that a state of facts exists which would warrant the selection of the persons or classes which this law hits, we believe that the reasoning in the Minnesota and Illinois cases is convincing.

“This objection to the law is not valid. The legislature has power to form classes for the purpose of police regulation, if they do not arbitrarily discriminate between persons in substantially the same situation. A discrimination must rest upon some reasonable ground of difference, but the classification in this case is a natural one. The commission merchants dealing in the kinds of produce named in this act, which constitute the small products of the farm, are of a different class from those who transact business in the great markets for the sale of grain, live stock and dressed meats.” Lasher v. People, supra.

See, also, McKnight v. Hodge, 55 Wash. 289, 104 Pac. 504, 40 L. R. A. (N. S.) 1207, and cases there cited.

The law appears to be a very stringent and in some respects even drastic one, but the validity of a statute is not subject to objection because of the stringency or difficulty of its requirements. Dent v. West Virginia, 129 U. S. 114.

“It is not for the court to say that a constitutional law shall not have effect, because it is in the judgment of a court unreasonable.” Barton v. McWhinney, 85 Ind. 481.

See, also, People v. Worden Grocer Co., 118 Mich. 604, 77 N. W. 315; Hamilton v. St. Louis County Court, 15 Mo. 3; State ex rel. Ornstine v. Cary, 126 Wis. 135, 105 N. W. 792, 11 L. R. A. (N. S.) 174; Point Roberts Fishing Co. v. George & Barker Co., 28 Wash. 200, 68 Pac. 438.

Nor does that part of the law requiring a license render the act void.

“The most proper business may be regulated to prevent its becoming offensive to the public sense of decency or for any other reason injurious or dangerous, and rules for the conduct of the most necessary and common occupations are prescribed when from their nature they afford peculiar opportunities for imposition and fraud.” Cooley, Constitutional Limitations (7th ed.), 886.

See, also, 8 Cyc. 1067; 25 Cyc. 614.

The fact that this law in the main provides for prevention of fraud upon the customer of the commission merchant, assuming that the legislature found a state of facts requiring such regulations to prevent such fraud, renders the regulation by licensing, among other features, appropriate. The license fee here is small, not in any way oppressive or unreasonable, and for any revocation or threatened revocation of the license by the licensing authority, without just cause, relief is to be afforded by the courts.

Appellant insists that the requirement of the law, in order to obtain a license, that a surety company bond in the sum of $3,000 be furnished, is an unreasonable and invalid requirement. It insists also that it is impossible of performance. The last contention is undoubtedly merely a conclusion or statement of opinion. We have heretofore held, in the case of Ferguson-Hendrix Co. v. Fidelity & Deposit Co., 79 Wash. 528, 140 Pac. 700, that the provision of the law-requiring such bond in order to obtain a license is a valid exercise of the police power of the state. It is urged, however, that that question was not involved and was not proper to be decided in that case. State ex rel. McKell v. Robins, 71 Ohio St. 273, 73 N. E. 470, 69 L. R. A. 427, where a similar statute in Ohio was not sustained, is cited in support of appellant’s contention. We cannot give our assent to the reasoning or the conclusion in that case; and while it may be true that the validity of this section of the law was not involved in the Ferguson-Hendrix case, supra, yet we adopt the reasoning in that case as supporting this provision of the law.

The appellant urges the unconstitutionality of the other provisions of the law to render the entire act void. We conceive it to be the unquestioned rule that'a person cannot invoke a constitutional objection to a part of a statute not applicable to his own particular case. Southern R. Co. v. King, 217 U. S. 524; Engel v. O’Malley, 219 U. S. 128; Standard Stock Food Co. v. Wright, 225 U. S. 540; Rosenthal v. People of New York, 226 U. S. 260; Darnell v. Indiana, 226 U. S. 390; Cram v. Chicago, B. & Q. R. Co., 85 Neb. 586, 123 N. W. 1045, 26 L. R. A. (N. S.) 1028; Wadin v. Czuczka (Ariz.), 146 Pac. 491. Unless a person’s rights are directly involved, courts will postpone inquiry into constitutional questions which are separable therefrom until they are met upon a question directly at issue, unless the unconstitutional feature of it, if it exists, is of such a character as to render the entire act void. New York Cent. & H. R. R. Co. v. United States, 212 U. S. 481; People v. Huff, 249 Ill. 164, 94 N. E. 61; Hammer v. State, 173 Ind. 199, 89 N. E. 850, 140 Am. St. 248, 24 L. R. A. (N. S.) 795; Wadin v. Czuczka, supra. But that a law may be valid in part and separable and capable of being executed, so that the invalid part may be disregarded, is a well settled principle of statutory construction. Lewis’ Sutherland, Statutory Construction, 578, 579; Cooley, Constitutional Limitations (7th ed.), 246, 247; Pullmann State Bank v. Manring, 18 Wash. 250, 51 Pac. 464; Supervisors v. Stanley, 105 U. S. 305.

The provisions in some sections of the act, for imprisonment for debt and for recovery of attorney’s fees in suits upon the bonds provided for in the act, are matters not involved in this prosecution, and with which the appellant has no concern. We may well assume that the legislature would have enacted the body of the act providing for licensing and regulation of commission merchants regardless of the provisions for recovery of attorney’s fees in civil actions upon the bonds and for prosecution and punishment for violation of any of the sections of the act. We, therefore, hold that, as to those sections, whether they are or are not unconstitutional and void, the provisions, so far as involved in this prosecution, are entirely independent and separable therefrom ; and if said sections should be determined to be unconstitutional and void, such determination and the elimination of such provisions would not affect the remainder of the act.

The same reasoning applies to the contention of the appellant that the law contravenes the provisions of the Federal constitution relating to interstate commerce. So far as the present case is concerned, there is no issue involving rights under the interstate commerce clause of the Federal constitution. However, the question whether a statute applies to interstate commerce depends upon the actual operation; and a statute which is void as to interstate commerce may be valid as regards commerce which is carried on wholly within the state. 21 Am. & Eng. Ency. Law (2d ed.), 792; State ex rel. Beek v. Wagener, supra.

Other matters are discussed by appellant which are not involved in the prosecution and are not; in our opinion, to be passed upon in this case. We cannot say that the act, so far as it applies to the facts upon which appellant was prosecuted, is palpably in violation of any of the provisions referred to in the Federal or state constitution.

The judgment is therefore affirmed.

Parker, Mount, Main, and Ellis, JJ., concur.