84 SALMON GEAR LIMITATION 



being actually smaller than would be allowable under the constitu- 

 tions. This was particularly acute in situations where the court con- 

 sidered that the police power could be exercised only to pass legis- 

 lation furthering the "public health, safety, or morals." Would this 

 exclude legislation passed for some other purpose? 



While this was concededly not the dominant limiting factor in 

 the court's opinion in Seattle v. Ford,^' a 1927 case, the court there 

 certainly had a very strict view of what was permitted under the 

 "police power." The ordinance being challenged was one requiring a 

 $10.00 per day fee for a hawker's license. The defendant, in a meat 

 market on private property, but near the public way, held up T-bone 

 steaks and called to passersby in an effort to sell his wares. Apparently 

 the passersby could be either on the sidewalk or on the private prop- 

 erty, there being no barrier. The court held the ordinance unconsti- 

 tutional, as outside the police power, saying: 



"The courts will go far in sustaining the exercise of the police powers 

 for the preservation of the public health and safety, and in so doing 

 private rights in conflict therewith are overridden; but on the other hand, 

 the courts are equally concerned to see that, under the guise of protecting 

 the public, private business — especially that carried on upon private prop- 

 erty — is not arbitrarily restricted or interfered with . . . Our own cases 

 [citing two and referring to others as illustrative] in the main, relate to 

 ordinances establishing fire limits, fire escapes, weights and measures, 

 building ordinances and the like, and fall clearly within the public health 

 and safety rule, or they involve businesses, though of a private nature, 

 which are in themselves injurious and harmful and are therefore prohib- 

 itable. None of these cases is at all helpful here."^^ 



In the material which follows, therefore, will be repeated refer- 

 ences to cases discussing police power, where the case is discussed in 

 the text as involving the due process clause. It will facilitate analysis 

 if they are considered, conceptually at least, as measuring the same 

 thing — the extent of legislative power. In the case of the "police 

 power" approach, the measure is in terms of determining the size 

 of the power; in the "due process" approach, the measure is in terms 

 of determining the restrictions upon power imposed by the due 

 process clauses. Under either approach, the result should be the same. 



The growth in Washington law in the application of due process 

 to state regulations of economic activity has been quite similar to that 

 of the federal law under the federal constitution. Thus the current 



87. 144 Wash. 107, 257 Pac. 243 ( 1927). 



88. /^/. at 110, 111 and 112, 113; 257 Pac. 244, 245. 



