City of Spokane v. Camp

Dunbar, J.

The defendant, respondent on this appeal, Avas convicted before the municipal court of the city of Spokane for violating Ordinance No. A2919. Appeal was taken to the superior court of Spokane county; whereupon defendant moved to dismiss the cause and discharge the bondsmen and himself. This motion Avas granted by the court. Judgment of dismissal was entered, and the city appeals.

The sole question involved is the validity of the ordinance, it having been adjudged void and of no effect by the trial court. The ordinance is as follows:

“Section 1. It shall be unlaAvful for any person, firm or corporation to locate, búild, construct or keep in any block in which two-thirds of the buildings are devoted to exclusive residence purposes a livery, boarding or sale stable, or private stable where more than five head of stock are kept, Avithin two hundred feet of any such residence on either side of the street, unless the owners of a majority of the lots in such block fronting or abutting on the street consent in Avriting to the location or construction of such livery, boarding or sale stable, or private stable Avhere more than five head of stock are kept. Such written consent of the property owners shall be filed with the Board of Public Works before a permit shall be granted for the construction or keeping of such livery, boarding or sale stable, or private stable where more than five head of stock are kept.

“Section 2. Any person, firm or corporation violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and shall he fined in any sum not less than Fifty Dollars nor more than One Hundred Dollars.

“Section 3. This ordinance shall take eífect and be in force ten days after its passage.”

It is contended by the respondent that the ordinance is void for uncertainty, the language being so ambiguous that it cannot be ascertained how many blocks would have to be considered in determining the number of residences in a block. But it seems to us that this difficulty is more imaginary than real, and that there can be no doubt that consent must be obtained from the owners of the block in which the livery stable is actually located.

The other objections, with one exception, simply go to the policy of the ordinance, and embrace arguments which would more appropriately be addressed to the law making power. The exception mentioned above is that the ordinance constitutes a delegation of legislative power to the property owners of the city of Spokane, which is exclusively vested by law in the mayor and city council. This is really the important and vexatious question in the case — important because it involves a fundamental principle of government, and vexatious because there is a bewildering conflict of authority which it is impossible to reconcile, so that a review of the authorities would avail nothing.

Out of the wilderness of cases discussing this proposition, St. Louis v. Russell, 116 Mo. 248, 22 S. W. 470, and State ex rel Omaha Gas Co. v. Withnell (Neb.), 110 N. W. 680, are leading cases restricting the delegation of legislative powers; while Chicago v. Stratton, 162 Ill. 494, 44 N. E. 853, Davis v. Commonwealth, 167 U. S. 43, 17 Sup. Ct. 731, 42 L. Ed. 71, and Wilson v. Eureka City, 173 U. S. 32, 19 Sup. Ct. 317, 43 L. Ed. 603, lay down a rule which would sustain the ordinance in question. Indeed, Chicago v. Stratton was a livery stable case, and the ordinance sustained in that case was in all essentials similar to the ordinance assailed in this case. In that case the court held that the ordinance did not delegate to a majority of the lot owners a right to pass upon the question presented, but that consent was in the nature of a condition subsequent which might defeat the operation of the prohibition against the location of a livery stable in a block where two-thirds of the buildings are devoted exclusively to residence purposes. The court stated in the course of its argument that, in a matter of purely local concern, the parties immediately interested may fairly be supposed to be more competent to judge of their needs than any central authority. In this case it may readily be seen that the council, recognizing the rights of the residents of the city to be consulted in matters purely local, matters affecting the comfort and even the health of the residents, and the right to have their will reflected in the enactments of their representatives, provided the ordinance for the purpose of meeting the desires of the residents in that regard. The ordinance is prohibitive, but leaves the right to the citizen to waive the prohibition if he chooses. Statutes of this character are common, and while it is generally conceded that the legislature cannot delegate its legislative function, it is wTell established that it may provide for the operation of a law which it enacts upon the happening of some future act or contingency. The local option laws in their various phases are common instances. While these laws were violently assailed, and in some instances received judicial condemnation, they are now almost universally sustained.

The ordinance in our judgment being a valid one, the judgment is reversed, and the cause remanded to the lower court with instructions to overrule the demurrer and motion interposed by the respondent, and to proceed with the trial of the cause in accordance with the opinion herein expressed.

Hadley, C. J., Crow, Mount, and Root, JJ., concur.

Fullerton and Rudkin, JJ., took no part.