Patton v. Bellingham , 179 Wash. 566 ( 1934 )

While dissenting from the majority opinion, I must in candor concede that, if the validity of the ordinance here challenged is to be tested by the weight of past judicial opinion, the conclusion must be against the ordinance. But the ordinance rests for support upon the police power of the state — that all-pervading power to govern men and things which is to be described rather than defined, and whose boundaries the courts have always declined to fix. Happily, the spirit of our laws is not immobility, like those of the Medes and Persians, which never changed, but rather evolution and progress. While I concede the weight of past judicial opinion to be with the majority, yet all the cases upon the exercise of the police power that can be cited have implicit in them the suggestion that they are not the ultimate, but that changed times and the general acceptance of other concepts of public welfare may require new standards and an enlarged exercise of the power.

Any government that is to survive must have within it the possibility of progress and development. No better characterization of the evolutionary process in the exercise of the police power is to be found than that expressed by Judge Chadwick in State v. Mountain Timber Co., 75 Wash. 581,135 P. 645, L.R.A. 1917D, 10, where he said:

"Having in mind the sovereignty of the state, it would be folly to define the term [the police power]. To define is to limit that which from the nature of things cannot be limited, but which is rather to be adjusted to conditions touching the common welfare, when covered by legislative enactments. The police power is to the public what the law of necessity is to the individual. It is comprehended in the maxim salus populi suprema lex. It is not a rule, it is an evolution."

It is often said that the police power overrides the constitution. This is not an accurate expression of the relation of the one to the other. The police power is an essential attribute of the state's sovereignty, and the right to its exercise inheres in the constitution itself. Every proper exercise of the power is in conformity with the constitution.

The ordinance was passed by the city council of Bellingham, pursuant to the provisions of chapter 120, of the Laws of 1933, p. 448, Rem. 1934 Sup., § 9213-2 [P.C. § 427g]. As the cities of the state had already possessed the police power, as ample within its limits as that possessed by the legislature itself, it may be said that this law adds nothing to the power of the city. It may be true in one sense that, by this law, the cities received no accession of power, but in another view the ordinance finds support in the statute, because its passage by the legislature was a finding by the highest authority of the existence of a public necessity and a preponderant opinion justifying the exercise of the police power. To quote again from State v.Mountain Timber Co., supra:

"The scope of the police power is to be measured by the legislative will of the people upon questions of public concern, not in acts passed in response to sporadic impulses or exuberant displays of emotion, but in those enacted in affirmance of established usage or of such standards of morality and expediency as have by gradual processes and accepted reason become so fixed as to fairly indicate the better will of the people in their social, industrial and political development."

Can this court now say that the legislative declaration of the existence of a public necessity for the limitation of working hours in the interest of public welfare is not supported by the facts? Judges may not close their eyes and refuse to see what is visible to everyone else.

The appellant asserts his right, in the face of the ordinance, to keep his barber shop open in the city of Bellingham, notwithstanding the fact that members of his trade generally, and the public as well, have accepted the principle of a shorter day. He seeks to keep his shop open in the face of this preponderant opinion in virtue of his claimed right to govern his own business in the manner that appears best to him. But, as a member of organized society, he is presumed to have yielded to government the power to curtail, within limitations, some of his theoretic liberty. To quote from Burke, who plumbed to their depths the principles underlying organized government and social order:

"The moment you abate anything from the full rights of men, each to govern himself, and suffer any artificial, positive limitation upon those rights, from that moment the whole organization of government becomes a consideration of convenience."

And again:

"Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom."

Laws forbidding labor on Sunday have been sustained by the courts, not upon religious considerations, but as being socially and economically necessary and conducive to the common welfare. We have in this state at present an admittedly valid law forbidding the opening of barber shops on Sunday, and a legislative declaration that barbering is not one of the works of necessity permitted on that day. Now, if it is competent for the state, solely upon considerations of common welfare, to forbid the opening of barber shops on Sunday, can it be said that it may not limit them to nine hours on week days, when in the judgment of the legislature public welfare requires it? While the ordinance here involved is in terms one for early closing, its essential purpose is manifestly a shortening of the hours of labor for persons engaged in that trade.

It will not do for courts, by too strict an adherence to precedents having relation to other social and economic conditions, to negative all efforts of the people to improve, through governmental intervention, their social well being. To do so can only bring the courts into disfavor, without staying materially the processes of progress and betterment. Whether for good or evil, we are committed to the theory of democratic government, through whose agency the people must work out their own salvation. In this process, mistakes will be made, but the people must be permitted to make mistakes, if they are to remain free to govern themselves. Recent experience has conclusively demonstrated that, when mistakes are made through ill-considered and hasty legislation, a ready remedy is at hand for their correction.