51 Wash. 322 | Wash. | 1909
— 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
“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 witliin 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 anjd 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,
It ivas 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.
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 Pac. 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 pai’ticular 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
The judgment of the lower court is affirmed.
Fullerton, Mount, and Dunbar, JJ., concur.
Hadley, C. J., and Crow, J., took no part.