105 P. 609 | Cal. Ct. App. | 1909
Petitioner is held in custody by virtue of a commitment issued out of the justice court of the city of Sacramento based upon a trial and conviction for the violation of section 3 of Ordinance No. 824 of said city, providing that "It shall be unlawful for any person, firm, corporation, or association of persons to establish, maintain, operate or carry on a public laundry or wash-house within the corporate limits of the city of Sacramento in any building, or any portion thereof, or in any annex or outhouse thereto, that shall be occupied or used either directly or indirectly as a public hall, store, restaurant, lodging-house, or saloon, or that is frequented or occupied by many persons, or that is occupied as a stopping place by transient guests, or that is frequented by persons likely to spread infectious, contagious or loathsome diseases, or that is occupied or used or *513 frequented directly or indirectly for any immoral or unlawful purpose."
The particular portion of said section of the ordinance violated by the petitioner is shown by the allegation of the complaint that: "The defendant did then and there willfully and unlawfully operate and carry on a public laundry in that certain building known as number 208 K street in said city of Sacramento then and there occupied and used in part as a public store," and it is therefore apparent that the validity of the ordinance only as it relates to this inhibition is involved in the proceeding here.
The grounds of attack similar to those usually urged against police and sanitary regulations of kindred character are that the provision is unreasonable, discriminatory, oppressive, in restraint of trade and generally violative of the constitutional right of petitioner to pursue a useful occupation without unlawful interference or unnecessary restraint.
The general principles involved in the determination of the controversy are well established, and, as far as necessary, may be stated as follows:
In the first place, it is not sufficient that the court may entertain a doubt as to whether the legislative body has exceeded the limits of its constitutional authority, but it must clearly appear that some fundamental right of the individual has been invaded and a personal privilege unfairly impaired or destroyed before an ordinance duly enacted can be declared invalid.
Again, what is known as the police power is one of very extensive application, involving many variant circumstances, and it is incapable of exact definition, and depends for its just and intelligent exercise so largely upon knowledge of local conditions, that a very wide discretion must be conceded to the legislative body, clothed with the presumption, as it is, that it will be guided by a rational and conscientious regard for the rights of the individual as well as for the interests of the community. In determining the validity of the ordinance the courts must give due consideration to all the circumstances of the particular city as far as disclosed, the objects sought to be accomplished, and the necessity which exists for the measure.
But it is equally true that while generally it is for the legislature to determine what laws and regulations are needed *514 to protect the public health and to secure public safety and comfort, yet they must have some relation to these ends, and if under the guise of police regulation attempt is made to violate personal or property rights, the courts will not hesitate to overthrow such a measure.
In Ex parte Jacobs,
In Ex parte Sing Lee,
In Ex parte Whitwell,
In Barber v. Connolly,
"But neither the amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations, to promote the health, peace, morals, *516 education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed not to impose unequal or unnecessary restrictions upon anyone, but to promote, with as little individual inconvenience as possible, the general good. Though in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions."
In the light of these general principles can it be said that the particular portion of the ordinance violated by petitioner is beyond the legitimate scope of the police power, or that it unwarrantably disturbs petitioner in the enjoyment of his constitutional privileges?
It certainly cannot be maintained that it discriminates against him as an individual or as a member of the Mongolian race. All persons, without regard to race or condition, are subject to its penalties if they violate its provisions. There is nothing in the measure to show that it was designed to impose unequal or unnecessary restrictions upon any particular class engaged in the laundry business. We must judge of the purpose of the ordinance by what appears upon its face. Therefore, it must be held that it lays the same burdens upon all engaged in the same business under the same circumstances, and one of the main grounds of opposition to it is therefore seen to be without merit.
It does manifestly place restrictions upon the business of petitioner that are not imposed upon other occupations. And there is no question that his business is a common, ordinary and useful occupation that should be hampered as little as possible. It is true, as said by Judge Sawyer, in Ex parte TieLoy, 26 Fed. 613, that "The right to labor in this or any honest, necessary, and in itself harmless calling, where it can be the most conveniently, advantageously and profitably carried on without injury to others, is one of the highest privileges and immunities secured by the constitution to every American citizen and to every person residing within its protection."
There is no contention here that the business is prima facie a nuisance, like a slaughter-house or a house for the storage *517 of gunpowder or dynamite, but the ordinance is sought to be justified upon sanitary considerations. It is insisted that it is not a harmless calling, that the city council determined upon proper evidence — and, indeed, that it is a matter of common knowledge — that the conditions under which laundries are operated are favorable for the propagation of disease, that the soiled garments received and handled in such places are liable to communicate deleterious germs to the circumambient atmosphere, giving rise to danger of infection to persons coming into close proximity to these surroundings. A due regard for the health of the community and a commendable desire to destroy or minimize as far as possible the sources of contagion have led, it is urged, to this regulation of a business from which the danger suggested is inseparable. If the danger really exists and is imminent, no one would have the hardihood to deny that it is not only the privilege, but the duty, of the council to obviate it if possible. Within the proper exercise of the police power the operation of public laundries within the city limits could be entirely prohibited if such a measure could reasonably be said to promote the public health. But here no prohibition is sought, but only a regulation which we must assume the evidence before the council demonstrated to be in furtherance of a beneficent design to contribute to the welfare of the community. Under such circumstances, if they exist, the abstract right of the individual to pursue any lawful occupation where it can be the most conveniently and advantageously carried on must yield to the superior right of the public to be protected from the menace of disease. Such legislation, indeed, is one of the beneficent products of modern advancement in sanitation. It is sanctioned by the more enlightened public sentiment as to the duty of guarding the public health, and it reflects the principle of sound, scientific hygiene. It is on the same footing as legislation requiring streets to be kept clean, garbage properly removed and air pollutions of all kinds prevented, whether they arise from smoke, street dust, noxious gases or other sources. Formerly such legislation would have been regarded as an unwarranted encroachment upon the rights of the individual, but in view of the progress of the medical profession, the better understanding of the nature of disease and its transmission, and the broader conception of the duty of the municipality in regard to the preservation and protection *518 of the public health characteristic of the present age, it seems upon its face to embody a sensible and reasonable restriction, bearing a direct and efficacious relation to the accomplishment of a legitimate purpose of police and sanitary legislation. At least, in the absence of any evidence to that effect, we cannot say that the public health is not thereby promoted or that the method adopted is unreasonable and unnecessarily oppressive. The fact is that as far as the convenience of the petitioner is concerned, we have no right to assume that he may not secure in the same neighborhood a building for the operation of his business free from the statutory objections, having the same advantages and at practically the same expense to himself. But be that as it may, under the showing made it cannot be held that he has any just cause for complaint.
We find that similar questions have been considered in various decisions of the higher courts, to some of which we may with propriety refer.
In Barber v. Connolly,
The same ordinance was before the said court in Soon Hing v.Crowley,
In the Matter of Yick Wo,
The regulation therein considered was much more drastic than the one involved here, but it was held to be valid as within the police power of the municipality.
In Ex parte Lacey,
In Dillon on Municipal Corporations, section 369, it is said: "Our municipal corporations are usually invested with expresspower to preserve the health and safety of the inhabitants." Here, as we have seen, our constitution, article XI, section 11, expressly confers the power upon the municipalities, and in addition thereto we find in the charter of the city of Sacramento authority granted to the board of trustees, article II, section 25, subdivision 9 (Stats. 1893, p. 552), "to regulate the maintenance of acid works, slaughter-houses, wash-houses, laundries, tanneries, offensive trades and all other manufactories, works and business of every description that may endanger the public safety, health or comfort and to restrict the prosecution thereof to such fixed limits as may seem proper, or exclude such works and business from the city."
Dillon proceeds to say, in section 379, that "Much must necessarily be left to the discretion of the municipal authorities and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive or unwarrantably invade private rights or clearly transcend the powers granted to them. . . . It is not unusual to invest the municipal council with special authority in respect of particular avocations, trades, acts, omissions and structures, with a view to conserve the public health and safety, of which many examples have been given in the notes to this chapter. The terms in which such authority is conferred measure its scope, but in view of the end for which it is given, it is not subjected to a hostile or even a narrow construction."
The principal cases upon which petitioner relies to support his contention are Ex parte Jacobs,
The ordinance condemned in the Jacobs case made it a misdemeanor to manufacture cigars in cities of more than five *521 hundred thousand inhabitants, in any tenement house occupied by more than three families, except on the first floor of houses on which there is a store for the sale of cigars and tobacco. It was held to be unconstitutional because it arbitrarily interfered with personal liberty and private property without due process of law. The only attempted justification for it, that it was a health law, was declared to be utterly without support. The court said: "It has never been said, so far as we can learn, and it was not affirmed even in the argument before us, that its preparation and manufacture into cigars were dangerous to the public health. We are not aware and are not able to learn that tobacco is even injurious to the health of those who deal in it, or are engaged in its production or manufacture. We certainly know enough about it to be sure that its manipulation in one room can produce no harm to the health of the occupants of other rooms in the same house. . . . It is plain that this is not a health law and that it has no relation whatever to the public health."
The decision in Ex parte Sing Lee was put upon a similar ground. The ordinance there "prohibited the carrying on of a public laundry within the corporate limits of the town except in certain specified blocks thereof, without a written permit from the board of trustees, and provided that no permit should be granted unless the applicant should first obtain the written consent of a majority of the real property owners within the block in which the business was to be carried on and also of the four blocks immediately surrounding such block." This was held to be unreasonable and an unauthorized interference with the inalienable right to engage in a lawful occupation, the court saying that the ordinance had "no tendency to promote the public health, or in any way to secure the public comfort or safety. The sections of the ordinance above quoted bear no kind of relation to such objects, and do not attempt to regulate the business mentioned with the view of accomplishing such ends, but they commit the right to carry on such business at all, in all but two blocks of the town, to the unrestricted will and caprice of a majority of the real property owners within the block upon which it is proposed to establish such laundry and of the four blocks immediately surrounding such block."
In Ex parte Whitwell,
There were other equally searching provisions, and it was rightly held that the ordinance was unreasonable and not a proper exercise of the police power, and therefore void. It was apparent from the face of the ordinance that it was an arbitrary and unwarrantable interference with a legitimate business recognized as innocent and useful to the community, and that it did not bear any relation to the lawful purpose of police or sanitary regulations.
In the Tie Loy or Stockton Laundry case the ordinance, as said by Judge Sawyer, absolutely and unconditionally forbade "the keeping of a laundry for washing clothes for hire at any point within the inhabited and even within the habitable part of the city of Stockton; the remainder of the city being in the uninhabitable marshes and sloughs. The isolated position of the laundry, the character of the structure, and the perfection or imperfection of the appliances for rendering the operation safe and free from unwholesomeness to the senses are not factors to be considered under the ordinance. All must go, safe or unsafe, healthy or unhealthy, offensive or not offensive."
There probably might be conditions under which it would be a proper exercise of the police power to prohibit altogether a public laundry within the corporate limits of a municipality, but assuredly the burden of making such a showing would be cast upon the one asserting its rightful exercise.
There may be more question about the decision in the Sam Kee case, supra, but there the business within certain limits *523 of the city of Napa was absolutely prohibited, and the ordinance appearing on its face to be unreasonable and oppressive, in the absence of any showing before the court to justify such an encroachment upon individual rights, it was justly deemed to be invalid. In the foregoing cases an inspection of the ordinance revealed its fatal infirmity, but here it cannot be affirmed that the provision in controversy goes beyond the legitimate domain of the police power.
The writ is therefore denied and the petitioner remanded.
Hart, J., and Chipman, P. J., concurred.