Patton v. City of Bellingham

Legislation such as the ordinance here under consideration finds its origin in Sunday closing laws and laws regulating the use of intoxicating liquor. Sunday closing laws have generally been upheld, not so much on the theory of religious observance of the Sabbath day as upon the theory that one day of rest during the week is essential to man's physical and moral well being. InSoon Hing v. Crowley, 113 U.S. 703, 5 S. Ct. 730, Mr. Justice Field said:

"Laws setting aside Sunday as a day of rest are upheld, not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities; and their validity has been sustained by the highest courts of the States."

Intoxicating liquor has always been recognized as deleterious to the public welfare. Traffic in it has not only been subject to Sunday closing laws, but also to limitation, on week days, of the hours during which it might be conducted. Laws regulating opening and closing hours of saloons have been universally upheld. Not only that — long ago, an ordinance was upheld requiring restaurants where intoxicating liquor was sold to remain closed after ten p.m. State v. Freeman, 38 N.H. 426. In that case, the court said:

"The objection is that the ordinance deprives the citizen of the right guaranteed to him by the constitution, of ``acquiring' ``property' by the prosecution of a lawful business.

"It is an unavoidable consequence of city ordinances, that they in some degree interfere with the unlimited exercise of private rights which were previously enjoyed. It is one thing to deprive a party of his rights, and quite another to regulate and restrain their exercise in such a manner as the common convenience and safety may require. If it is permissible to interfere in any way with the private right to carry on and manage his lawful business at such time and place, and in such manner as suits himself, we are unable to see anything unreasonable in requiring places of public entertainment to be closed at seasonable hours. The guaranty of the constitution is just as effective to secure the citizen against the interference of the legislature, as of the city council, and it has never been questioned that the legislature may constitutionally pass laws materially interfering with the business of individuals."

So far as I am aware, the first legislation regulating opening and closing hours of a so-called strictly legitimate business to reach courts of last resort was the Chinese laundry ordinance of San Francisco. This ordinance was passed at the behest of white laundry owners to curb Chinese competition. The pretext upon which it was passed and upheld was to reduce fire hazard at night within certain specified boundaries of the city. Anyone at all familiar with San Francisco, however, will recognize that Chinatown was carefully circumscribed by the boundaries. The ordinance received the attention of the supreme court of the United States in Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, and Soon Hing v. Crowley, 113 U.S. 703, 5 S. Ct. 730. Mr. Justice Field spoke for a unanimous court in both cases. In the former case, he said:

"The Fourteenth Amendment, in declaring that no State ``shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,' undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences. Butneither the amendment — broad and comprehensive as it is — norany other amendment, was designed to interfere with the power ofthe State, sometimes termed its police power, to prescriberegulations to promote the health, peace, morals, education, andgood order of the people, and to legislate so as to increase theindustries of the State, develop its resources, and add to itswealth and prosperity."

In the second case, he said:

"The objection that the fourth section is void on the ground that it deprives a man of the right to work at all times is equally without force. However broad the right of every one to follow such calling and employ his time as he may judge most conducive to his interests, it must be exercised subject to such general rules as are adopted by society for the common welfare. All sorts of restrictions are imposed upon the actions of men notwithstanding the liberty which is guaranteed to each. It is liberty regulated by just and impartial laws. Parties, for example, are free to make any contracts they choose for a lawful purpose, but society says what contracts shall be in writing and what may be verbally made, and on what days they may be executed, and how long they may be enforced if their terms are not complied with. So, too, with the hours of labor. On few subjects has there been more regulation. How many hours shall constitute a day's work in the absence of contract, at what time shops in our cities shall close at night, are constant subjects of legislation."

Upon the authority of these cases, ordinances prescribing the hours of opening and closing of pawnshops, second hand stores, pool halls and billiard and soft drink parlors have been held constitutional. Hyman v. Boldrick, 153 Ky. 77, 154 S.W. 369, 44 L.R.A. (N.S.) 1039; Churchill v. Albany, 65 Ore. 442,133 P. 632, Ann. Cas. 1915A, 1094; Butte v. Paltrovich, 30 Mont. 18,75 P. 521, 104 Am. St. 698. In the latter case, the court said:

"It is of the very essence of the exercise of police powers that citizens may, for the public good, be constrained in their conduct with reference to matters in themselves lawful and right. (Hopper v. Stack, 69 N.J. Law, 562, 56 A. 1.) It is not a material inquiry to attempt to ascertain the reason which impelled the legislature to designate the business of pawnbrokers as subject to police regulations. It is sufficient for us to know that it has done so, and deal with the law as we find it.

"The fact that appellant cannot prosecute his business whenever he may desire to do so is hardly a sufficient reason for saying that the restrictions imposed are unreasonable. However comprehensive the terms ``individual liberty,' so frequently made use of, are, and however broad the claim which may be advanced that everyone may employ his time in a lawful undertaking as may best serve his own interests, still the liberty referred to is a relative term, and, at most, means liberty regulated by just and impartial laws, while all sorts of reasonable restrictions are imposed upon the actions of men for the common welfare and good of society."

In recent years, a number of attempts have been made by municipalities to regulate the hours of opening and closing of barber shops. In all but one instance, these ordinances have been held to constitute an unlawful interference with private business. The case which makes the exception, however, is the only one which, in all of its aspects, is identical with the case at bar. Falco v. Atlantic City, 99 N.J. Law 19,122 A. 610. There, as here, the ordinance was predicated on a statute similar to chapter 120, Laws of 1933, p. 448, Rem. 1934 Sup., § 9213-2 [P.C. § 427g]. While legally the statute mentioned means nothing in the way of supplementing the police power of the city of Bellingham, it means much as a declaration of public policy by the people of the state acting through their legislature. On this aspect of our problem, what Mr. Justice Holmes said in his dissenting opinion in Lochner v. New York, 198 U.S. 45,25 S. Ct. 539, is peculiarly pertinent — the more so since the philosophy of his dissent has come to be well nigh universally accepted:

"This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious or if you like as tyrannical as this, and which equally with this interfere with the liberty to contract. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. . . . It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss."

The significance of a statutory background for such ordinances as we have here is pointed out in State ex rel. Newman v.Laramie, 40 Wyo. 74, 275 P. 106, where there was no legislative sanction for the ordinance involved. Distinguishing, for that reason, Falco v. Atlantic City, supra, the court said:

"In the case relied on the statute plainly granted to the city the right to fix hours of closing. The court thought it probable that this had been done in order to permit the city to make ready and adequate inspections that might otherwise be inconvenient, difficult or even impossible. In the case at bar, the city's power to fix closing hours does not arise from such a specific grant, and must exist, if at all, as an incident to the power to regulate."

It is true that the pretext for upholding the ordinance in theFalco case was a specious necessity for inspection of barber shops to protect patrons against unsanitary conditions — just as the pretext for upholding the laundry ordinance in the Barbier and Soon Hing cases was fire protection. But I think there was a broader and much more substantial ground for upholding the ordinance in each instance. One cannot read the Soon Hing andBarbier cases without being convinced that the purpose of the ordinance was to curb a competition in the laundry business under which white men could not live on a standard of decency.

So here, looking through the pretext and at the reality, the purpose of this ordinance is to curb competition of the chain store character in the barber trade. And it is every whit as justifiable as the laundry ordinance. The chain shops, by working two or three shifts, can keep open twelve, sixteen or twenty-four hours. In order to live, the one or two chair shops must keep open for a like period. Thus through economic necessity, men in the latter shops are forced to work for a length of hours that deprives them of the leisure that makes life worth living. The power of the government to enact legislation to alleviate such conditions is inherent. Such legislation is grounded in the government's "right to protect all persons from the physical and moral debasement of uninterrupted labor." Soon Hing v. Crowley, supra.

And when the government speaks on such a question through its legislative authority, the courts have no right or power to interfere, except in case the legislative action is arbitrary or capricious. As was said in Butte v. Paltrovich, supra:

"However, the question of the reasonableness of the regulation is one of fact, of which the city council is the best judge, (Staates v. Borough of Washington, 44 N.J. Law, 605, 43 Am.Rep. 402; City of Grand Rapids v. Braudy, 105 Mich. 670,64 N.W. 29, 32 L.R.A. 119, 55 Am. St. Rep. 472), and in the absence of a clear showing to the contrary, its reasonableness will be presumed. (Ivins v. Inhabitants of Trenton, 68 N.J. Law, 501,53 A. 202.)"

The ordinance here in question permits shops to be open ten hours a day. I find nothing in this record which overcomes the presumption of reasonableness of the regulation. I know of no one, except, perhaps, the extremely acquisitive, who voluntarily works at any kind of labor for more than ten hours a day. Certainly, no one from choice works at manual labor for such an uninterrupted period. While cases involving the exercise of the police power with respect to hours of labor are not harmonious, I think this rule may be fairly deduced from them: That, where a business is in any respect subject to governmental regulation, hours of labor in connecton with it are a proper subject for reasonable limitation under the police power.

I think the ordinance is a reasonable exercise of its police power by the city, and that the judgment should, therefore, be affirmed.

HOLCOMB, J., concurs with BLAKE, J.