Petition for a Writ of Certiorari — Sittner v. City of Seattle

. ah ee _©, Ottice- Supreme Court, U.S.

ts any Deas | FILED.

. MAR 2 1964

ae | JOHN F. DAVIS, CLERK

_ Supreme Court of the United States

OCTOBER TERM, 1964

JOHN SITTNER, a ba SITTNER’S AUTO. Wancxnep: |

Frank Lencl, d/bva FRANK’ s Auto WRECKING Co.; °

Firz Avro. Parts, Inc.; Riverstpe AvTO WRECKING;

LINCOLN AUTO AND TRUCK WRECKING; TRUCK Equir-

MENT Co.; Ferritt’s Avto WRECKING; Epwarp J.

’PRESTEK: M. Bioeu anp Co. [Nc.; Bos’s Atto WRECK-

ING; GENERAL AUTO AND TRUCK W RECKING; SEATTLE

Iron AND Metarts Corp.; Luria Bros.-anp Co., INc.;

STERNOFF METALS Corp. ; Pac 1FIC [RON AND METAL Co. ;

Rex AvtO WRECKING: ‘ANDERSON’S s Acto WRECKING;

SoctH Exp Avro WRECKING; NEWTON AUTO Parts ;"

Jor W. McCvuTcHen ; ComMERCIAL TERMINALS Co.; M.

_G. Vay Dykr; Sam's Bonpep, Av TO WRECKERS; iM E. °

SEXTON ; and -Farwest Avto Wrecktnec Co., INc.,

Petitioners,

Vs. 2

Crty oF SEATTLE, a municipal,corporation, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

WASHINGTON

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“Micu agrL DonovaN = CLARENCE J. COLEMAN .

203 Jeffrey Bldg., 401 First National Bank Bldg.,

Bellevue, W ash. Everett, Wash.

Of Counsel.’ Counsel for Petitioners.

THE ARGUS PRESS, Se SEATTLE. WASHINGTON

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Lora. arses

‘Supreme Court of the United States

ae OctTorER TERM. 1964 |

No. we aweee ine coeee aie

ae

ers SITTNER, d/b/a SITTNER’s AUTO WRECKING;

‘

Frank LENcI, d/b/a Frank's Auto Wreckine Co-"

Fitz Auto Parts, Inc.; Rivers Auto WRECKING:

LincoLn AUTO AND TRUCK WreEcKING; Truck Equtp-

MENT Co.; FERRILL’s AUTO WrREecKING; _Epwarp J.

PRESTEK ; M: BLocu ANp Co. Inc.; Bop’s Avro WRECK-

ING; GENERAL AUTO AND TRUCK: WRECKING ; SEATTLE

Iron. AND MetTarts Corp.; Lurta Bros. ano Co., Inc.;

STERNOFF Metaus Corp.; Pactrtc [Ron AND METAL Co?;

REX Auto WRECKING; ‘ANDERSON’ 's AUTO WRECKING;

Soutn Exp Avro WRECKING; Newton Auto Parts;

Jo—E W. McCutcHen ; COMMERCIAL TERMINALS Co.;: M. _

G. Van Dyke; Sam’s Bonnep Auto WreEcCKERS; L. E,

SEXTON ; and. Farwest Auto Wreckinc €o., Inc.,

~~ Petitioners,

vs. ‘

CITY OF SE: ATTLE, a municipal corporation, Respondent.

PETITION: FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF

. . . WASHINGTON

MIcHAEI. Donovax CLARENCE J. COLEMAN

90% Jeffrey Bldg., 401 First National Bank Bidg.,

Bellevue, Wash. Everett, Wash.

Of Counsel. Counsel for Petitioners. |

3

THE ARGUS PRESS. eae SEATTLE. WASHINGTON °

me)

| INDEX

“1 P Ww Dd Pd

_ Page

i, * itations to Opinions Below»:

Jurisdiction j

~~ Question Presented aod es :

Constitutional Provisions wad Ordinances Involv ed

Statement —

Reasons for Granting the Writ.

| ee ty PN ARE Pte 11

Appendix A—Opinion of the » Washington plan

preme Court lesabpateegeccadleaseie as 15 -

Appendix B—Order Diininn Clarification” Loses

Appendix: C—Seattle City Ordinance 90000... 25

& Fal P

| rape OF CASES’

Sittner, et al., v. — 162 Wash. Dee. p. 819,384

P.(2d) 859 2

State ex rel: McCue v. Sheriff’ of Deliee ne

48 Minn. 236,,51 N.W. 112,°31 Am. St. Rep.

‘650 ‘es ...8-9, 10

ras ee

25 Stat 676 (50 Coxig. 1887- 1889) . ape

28° USC § 1257 (3 | . eg.

CONSTITUTION.

' United States Constitution, Fourteenth Amend- _.

ment . . Pieter ee

ORDINANCE.

: Seattle City Ordinance 90000 - 3,4,5,6,7 , 8,10

Inthe,

Supreme Court of the United States

OcTOBER TrRM, 1964.

No. time béseeChnsaase .

° ; . K . Pp é

JouN Sirtver, d/b/a SitrNer’s Auto WRECKING;

Frank Lenci, d/b/a Frank's Auto WRECKING Co. ;

‘Fitz Avro Parts, Inc.; RIVERSIDE AUTO WRECKING; °

Liycotn AvTo anp TRUCK WRECKING; TRUCK Eguip-

vr 9,

MENT {o.; Ferrin.’s Auto Wreckinc; Epwarp J.

PrestEkK ; M. BuocH ayp Co.-Inc.; Bos’s AUTO WRECK-

ING; GENERAL AUTO. AND TRUCK. WRECKING; SEATTLE

Igon anv Metars Corp.; Lurta Bros. AND Co., INC. ;

STERNOFF Metats Corp.; Pactric IRON AND METAL Co.;

Rex AuTO WRECKING; ANDERSON’s AUTO WRECKING; ©

_ South Exp Atvto Wreckinc; NewTon Auto Parts;

Jor. W. McCuicHEen ; ComMERCIAL TERMINALS Co.; M.

G. Van DYKE; Sam’s Bonpbep Auto WRECKERS; L. E.

SExTon; and Farwest Auto WrecKING Co., INC..

ee Petitioners, - |

| vs. | | . .

City oF SEATTLE, a municipal corporation, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF.

“WASHINGTON

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~. Petitioners pray that.a Writ of Certiorari issue to

review the judgment of the Supréme Court of the State

of Washington enter¢d in the above entitled case on

August 29, 1963. \

xP

CITATIONS ‘TO OBINIONS BELOW _

The Opinion of the Washington State Supreme Court

"filed August 29, 1963, has not.as yet been printed iff the

. botind ‘volumes of the Washington Reports: However,

- itis reported in 162 Washington Decisionx, page 819, .

which is the ‘‘ Official Advance Sheets of thé Wz ashing- |

ton Reports. ”? Also reported in 384 P. (2d) 859. Said*

Opinion is reproduced in Xppendix “A.? The order

directing clarification of the Dpinion of the Court (un- a

reported) | is Jnape icin in Appendix “B. i

"JURISDICTION

The ‘itipencui of the Supreme Court of the State ¢

_ Washington was entered August 29, 1963 ( R. 0059). J

petition for rehearing was. filed in a timely ‘manner a

. 0066) and denied on November 7, 1963 (R. 0074). The

Supreme Court of the State of W ashington entered an . -

order, staying: the operation of its judgment to allow

petitioners to file the petition for Writ of Certiorari —

-“ith the Supreme Court of -the United States of.—

: Ameri ica (R. 0054). A timely _application was made to

extend the time for filing the Petition for Certiorari to.

March 6, 1964, which was granted by the. Supreme Court -

of the United States of America by Order dated Febru-

ary 3, 1964. The ‘jur isdiction of the’ court is invoked

under 28 US€ § 1257 (3), sitive the validity of an

Ordinance of ‘the City of Seattle, Washington, is drawn

int6 questién as being repugnant to the Fourteenth

Amendment to the scape of the United | States of

America.

oo

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QUESTION PRESENTED”

The ole questioh presented i is whether Ordinance No 0.

90000 of the City of Seattle, Washington, contravenes

* the Fourteenth Amerttiment to the United States Consti-

tution in that the Ordinance discriminates against the —

class of business operatéd by petitioners by excepting -

from its provisions a class, of business operations which’

emit the same air contaminants as petitioners with no

reasonable distinction between. the classes Involved.

CONSTITUTIONAL PROVISIONS AND. ORDINANCES

INVOLVED

“The @onstitution of the United States, as amended,

| __ /provides among other things : aie

Amendment XIV § 1:

estos es No: State shall make or euteues any law

a, which shall abridge the privileges or immunities .

/ of citizens of the United States; nor shall any

- State deprive any person of life, liberty’, or prop-

erty, ‘without due process of law; nor deny to any -

person within its jurisdiction the equal protec ‘tion’

_. of the laws. ” U.S.C. 1958 ed. p. XLVIT. \

“Enabling, Act by which W seit became a State_/

in §:4 provides: .

“That the delegates tothe conv entions ** * after

the organization shall declare; on behalf of. the

‘constitution of the Uniied States; whereupon the

said conventions shall be, and are hereby, author-_

ized to form constitutions and state gov ernments,

for said proposed states respec tively. The constitu-,

tions shall be republican in form, and make no dis-

tinction in civil or political rights on account of

A cae | | So ge

ee ; hn

© people of said proposed states, that they, adopt the“~>>.

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"Court of King County, State of

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race or Color, except as to, Indians not taxed, and

-‘not be repugnant to the constitution of the United

-States and the’ principles of the Declaration .of

Indep@idence. * * * ” United States Statutes At

Largex Vol. 29, p. 676 (50th Congress 1887-1889).°

Ordinance No 90000. of the.City of Seattle is set forth

in Appendix we - | oo oe

Pot ieee

wie _ STATEMENT

Petitioners commencedaa action in theSyperior -

1 asthgt¢ 1, seeking a

declaratory_judgment wherem petitioness Sought to

have Ordinance No. 90000 of the ity of Seattle (re-

lating to air pollution and regulating the emissions of

f

oa contaminants) - be declared void as being discrimi-

| i, The jurisdiction of the Supreme Court of the :

United States was invoked by. praying that the Ordi*

nance No. 90000 of the City of Seattle he declared void

as discriminatory (R. 0001) and the same was finally

decided adversely by the Supreme Court of the State

wf Washington in the opinion where the court held:

“The plaintiffs have therefore failed to estab-

lish that the control -exercised by the ‘ordinance

| over their burning activifies is discriminatory and

jn contravention of Art. 1 § 12 of the state consti-

tution, nnd the fourteenth amendment, tothe

federal -oystitution.”” (Appendix “—)

The petitioners consist of 96 individuals and corpora- |

tions. 20 of which are engaged in the auto wrecking |

- business and five of which are engaged in the iron and

metal business. As an incident of their business opera-

tions, which are all located within the City of Seattle,

| “they burii salvaged metals in order to prepare them for

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reuse by foundries. Such scrap metal is desired by the

foundries only if it is thoroughly cleaned. As the metal

is cleaned by the burning process, smoke is emitted into

the air.

Ordinance No. 90000 is 3 entitled:

**An Ordirfance relating to air pollution, creating

_an air Pollution Control Advisory Board, regu-

‘jating emissions of air contamipants, ‘defining

offenses and preseriding —— (Appendix:

6 yee

ee 60.of Ordinance No. 90000 controls the

emission of **smoke”’ by making it ‘unlawful 'to cause,

suffer or allow emissions of smoke from any source

other than heat processing equipment, the capacity of

which is equal to or more than forty.per cent,’’ with

certain ‘exceptions relating to emissions for temporary |

periods of time. To measure the allowable opacity, the

ordinance utilizes what is known as the Ringelmann

Smoke Chart. ( Italics ours.)

The Ordinance defines smoke’ ‘as follows:

. . “An air-contaminant Consistia

borne concentration of c¢

particles and other mattet.

Section 80:0f Ordinance No. 90000 controls the

emission of **dust’* from heat processing eqitipment or

from the milling. grinding. crushing or handling of any

‘material. Section 80 sets fe ‘wh a table which provides

for the maximum dust eniissions allowable per hour

in relation to the prve CSS weight per hour. Tt defines

dust as:

“An air contaminant consisting of solid parti-

cles, capable of heing air-borne.* '

of a visible air-

bustign produced solid,

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After a trial in the Superior Court for King County,

State of Washington, the trial court entered Findings

. of Fact, specifically finding that the enforcement of

Ordinance No. 90000 would result in the elimination of

petitioners in their business of motor vehicle wrecking

thereby causing great financial loss to pefitioners ; that -

‘there is excepted from Section 60 of the Ordinance heat

processing equipment which is allowed to emit smoke

of any opacity; that the Ringelmann Smoke Chart

does not measure opacity, but only colorations of smoke,

and, further, that the use of said chart is of no value

whatsoever on those oeedisions Where the emissions being

measured eontain water, vapor or steam: that smoke of

less than 40° in opacity may be more dangerous and

harmful than smoke of 40° . opacity or more yhen the

harm under consideration - is limited to physical as

opposed to aesthetic reflections ; and that a logical and

reasonable distinction in fact does’ exist between dust

- and smoke as defined in the ordinances (F. of F. Ill ,

through VIII) (R. 0039-0041),, The Trial Court, how-

ever, sustained the ordinance as constitutional and

held that although, the Ringelmann*Smoke. Chart does -

jot measure opacity but only colorations, it was a

reasonable standard of measurement (R. 0041). Pe-

titioners appealed to the Supreme Court of the State of

Washington which affirmed the judgment of the Trial

Court and sustained Ordinance No. 90000: as constitu-

tional (Appendix “+ AY). Petitioners filed a petition for

rehearing which was denied by the State Supreme

Court .(R. 0066), the court, however, ‘simultaneously .

therewith, filed au order directing clarification (Ap-

pendix B) which overturned the Trial Court’s Findings

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of Fact that ‘ta iogicat and reasonable distinction i in fact

does exist between dust and smoke as defined in _the-

’ ordinance’ on the ground that such Findings of Fact

did not involve a factual issue but was a Conclusion, of

Law. This act of the State Supreme Court, however, is

contrary to the record since two-expert witnesses testi-

fied that such a distinction in faet existed (R. 0056,

0199). .

REASONS FOR GRANTING THE «WRIT

‘Petitioners contend that no occas basis éxists

for the classific: ition set forth in the Ordinance No.

90000 in requiring the business operations of petitioners

to be controlled by’ Section 60 thereof by the Ringel-

mann Smoke Chart while the heat processing -equip-

ment of another is controlled by the dust weight test

with, no control over. the opacity ‘of the smoke emitted

—~by such operations -Here we have two industrial opera-

tions emitting smoke, one of which is controlled and the

other ‘is not. Sueh operations might have identical

furnaces and smoke stacks, yet subject to digerimintat-

ing regulations as to the opacity of smoke emitted’ by

each in that one is regulated and the other’ totally un-

regulated. a eres y

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The Trial Court found that compliance by these

petitioners with Ordinance No. 90000 would be economi-

eally unfeasible because the cost te them is prohibitive

(Finding No. ITIL. R. 0040) 2 The result is that the ordi-

nance is, confiscatory of their respec tive, properties.

They alone are compelled to. pure hase expensive equip-

ment which may eliminate smoke generated by the

conduct of their operations. The cost of this equipment

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will run into hundreds of thousands of dollars. And

yet, after either purchasing such equipment or being

forced out of business, the factory next to.them which ”

is exempt from the smoke section of the ordinance may

continue to emit the same identical type of smoke which

thege petitioners have been forced to eliminate. -

The ordinance is directed at the control of two air

contaminants, smoke and. dust, which are not only

defined separately in the ordinance, but which the evi-

denee shows to be different (R. 0056, 0199) and which

the Trial Count found to be separate and distinct. But

petitioners (F. of F. No. VIII, R. 0041) whose opera- —

tions emit ‘smoke only are forbidden b¥ Section 60 of |

Ordinance No. 90000 to emit such smoke having an

opacity of over 40° ‘or more but other manufacturing aie

plants who are engaged in businesses which emit both :

smoke and dust are allowed to emit smoke of any

opacity as long as they. do not emit dust of a certain

quantity. et at o

If smoke is the air contaminant to be controlled, then

the sources of ‘that contamination” are” immaterial. ~

- Smoke from the furnaces of appel/ants is the same as ;

the. smoke from the class of business excepted from the - XY

Ordinance. There is 10 reasonable, logical or factual

difference between smoke from these two sources but

_ this ordinance discriminates against these petitioners

by making*it an economic hardship for them to continue

in‘business but allows the next-door industrial plant ~ ,

to operate without any ecdttmic hardship,and to emit”

smoke without control as to opacity. ois

Petitioners submit that the ease of State ex-rel. Mc-

os .

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Cue v. Sheriff of Ramsey County, 48 Minn. 236, 51

‘N.W. 112, 31 Am. St. Rep. #50, presented: a parallel

state of facts as compared té the case ‘at bar. This case

involved a city ordinance which, after prohibiting

under penalty, the emission of ‘dense smoke ‘within the

city, with certain liniitations as to distance, location and

surroundings, provided in § 3 that *‘nothing herein con-

tained shall be construed to apply te manufacturing

establishments, using the entire product of combustion,

and the heat, power, and the light produced thereby,

within the building, where they are generated within

a radius of 300 feet therefrom.’ The court held that

such ordinance was: discriminatory and class legisla- _

tion and said:

“The provisions of section 3 are somewhat ob-

secure x but the only fair and reasonable construc-

tion to be given it is that it is intended to except a

+ elass of manufacturers who limit the use of the

heat, light. ‘and power resulting from the com-

bustion of snioke-producing material wholly within

the prescribed radius. The. counsel for.the-state———

contend that this must ust apply equally to all within

the designated ¢lass, and that the exception thus.

made in the operation of the act is a reasonable

ene, because -from the nature of’ the preseribed

limitations, the public injury. or annoyance from

the emission of smoke from such establishments

would not be serious or specially objectionable to

the public. The arguanent applies in so far as the.

particular class who are excepted from the opera-

tion of the statute is concerned, but it does not

Feach the objection that the classification is not

sufficiently broad. ‘No arbitrary distinetion between

different kinds or classes of business ean be sus-

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tained, the conditions being otherwise siiftilar. The

statute is leveled against the nuisance ‘oecasioned

‘by dense smoke, and it can make no practical

difference in what business:the owners or occupants

- of the buildings in which: such smoke is produced ~ .

are engaged, or whether the heat evolved from the _

combustion of the fuel producing such smoke is

applied to the generation of steam or other useful ~

purposes ; or, further, whether steampower is used |

in manufacturing, or is applied to other uses, as a

"grain elevator or hoisting apparatus in a ware-—

house. Wa are obliged. to hold ‘that the distinction ~

_ or classification attempted to be made-is untenablé.

Section 3 must be read in connection with section 1,

and is evidently intended to be a limitation upon

the latter section, and is so connected with it that -

its provisions must be regarded as inseparable from

the general purpose and object of-the act, so that.

’ the whole must stand or fall together.”’ |

a

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While various courts have held valid. ordinances -

- which differentiated between dwelling houses and busi-

ness operations or exempted locomotives and boats from

the provisions of the ordinance, no ordinance other than

the one invelved in McCue v. Sheriff of Ramsey County,

supra, differentiated between. manufacturing and/or <

industrial plants and operations involving the same

© type of smoke such as in the case at bar. Ordinance No. ~

90000 of the City of Seattle will cause industrial and

manufacturing plants operating under Section 60 there-

of/such as petitioners, to cease operations while all that

coming under Section 80 thereof can emit similar smoke .

of any opacity with no prohibition. The one becomes

sub ject to the penalties of the ordinance ; the other does

not although smoke of similar opacity is involved.

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CONCLUSION

Petitioners submit that no distinction exists between

“the two types of manufacturing plants insofar as the

‘opacity of smoke is concerned, and for that reason the

ordinance, under facts found by the Trial Court, is |

patently discriminatory in a _ prejudicial manner

_ against petitioners in violation of the provisions of the

Fourteenth Amendment to the Constitution: of the °

United States-of America, and for that reason it is ©

- respectfully submitted that this Petition for Writ of

- Certiorari should be granted. ime,

Respectfully submitted, rs

¢ tau EJ. OLEMAN

- 401 First National Bank Bldg.,

Kyerett. Washington, |

A Counsel for Petitioners.

“MicuageL Donovan’ = * >

203 Jeffrey Bldg...

Bellevue, Washington

Of Counsel. he

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re

Appendices are

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Appe mdix A—Opinion-of the W asbington § State Su- ° .

preme Court

Appendix B--Order Directing’C larification

Appendix C—Seattle City Ordinance 90000.

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APPENDIX “A”

—

IN THE SUPREME COURT OF THE STATE

— OF WASHINGTON - :;

id

JouN Srrrver, et al., , |

re) aj SITTNER —_ Appellants, No: 36614 -

CITY oF SEATTLE, a municipal ecor- En Bane

. poration, . ———

Filed August 29, 1963. .

This is an appeal from the dismissal of an action

seeking a declaratory judgment ‘in which ‘plaintiffs

(appellants) prayed that Qrdinance No. 90000, section

60, of the defendant ( respondent), city of Seattle, be

- declared void and, in addition, that the defendant be

permanently enjoined ‘from enforcing such ‘section of

_ the ious

The plaintiffs consist of 25 idivbileais and corpora-

tions, 20 of which are engaged in the auto wrecking

business and five of which are engaged in the iron and

metal business. As an incident-of their business opera- —

tions, which are al] lggated within the city of Seattle,

they burn salvaged metals i in order to prepare them Yor

reuse by foundries. Such serap metal is desired by the

foundries only if it is. thoroughly cleaned. As the metal

is cleaned by the burning process, smoke is emitted into

the air. a

- Ordinance No. 90000 ; is entitled:

‘AN ORDINANCE relating to air pollution, ereat-—

ing an air Pollution Control Advisory Boafd, regu-

lating emissions: of air contaminants, , defining

| offenses and prescribing penalties. ” :

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"Section 60 of Ordinance ’ N 0. "96000 controls the .

emission of “snioke” by making it “unlawful to cause,

suffer or allow emissions of smoke from any source

other than heat processing equipment, the opacity of

. which is equal to or more than forty. per cent,” with

certain exceptions relating to emissions for temporary

periods of time. To measure the allowable opacity, the |

ordinance, utilizes what. is known as the Ringelmann |

Smoke-Chart.

Smoke is defined as:

**An air contaminant consisting of a visible ajr-

borne concentration of combustion procuess ¢ sélid

‘particles and other matter.’’: .

‘Section 80 of Qrdinanee No 0. 90000 con e

emission of ‘‘dust’’ from heat processing equipment or

from the milling, grinding, crushing or handling of any _

material. ‘Bection 80 sets forth a table which provides

“a

.

. forthe maximum dust emissions allowable per hour in

— to the process weigh? per. bour.-It defines dust

as: . - ;

‘‘An air contaminant consisting of solid parti-

eles, capable of being air-borne. ci

The plaintiffs contend section 60 of Gittheniens No.

90000 is unconstitutional because the “opacity”

standard used and the mandatory application of the

Ringéfmann Smoke Chart thereto does not: have a

reasonable relationship to the prevention of air pollu-.

~~ tion. It.is their position that, first, the ‘‘opacity”’.

standard does tict measure the contents. of the smoke,

e.g.; the toxic content thereof and, second, the Ringel-

mann Smoke Chart does notdpeasure opicity Sit co colora-

tious of smoke.

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‘An. ordinance to be void-fer“inreasonableness must

be plainly and clearly unreasonable. Seattle v. Hurst, 50.

Wash. 424, 97 Pac. 454 ( 1908). Although the ‘‘opacity”’. .

| standard may not detect all of the air contamitiants

which pollute ‘the air, we cannot say that it is not a

reasonable. means by which to detect some of the con-

taminating particles which smoke contains. It is. no

défense that the ‘opacity’ standard does not regulate

all air contamination but permits some emissions to go

‘unpunished since a law designed to prevent one evil is

no tvoid because it does not prevent another. Ballentine

’, Nester, 350 Mo. 58, 164 S.W, (2d) 378 ( 1942).

Similarly. while it is true that the Ringelmann Smoke |. —

Chart measures coloration and not opacity, it does not.

necessarily follow that the chart may not be. reasonably’

used as a basis for determining opacity. The Ringel-

mann Smoke Chart has been w idely accepted through-

out the United States as a reasuremenit of air. pollution A

by- “both legislatures and courts, and we find ourselves

‘in agreement with the wisdom of this aceeptane é.

-.

The tria) court did not err in tinding that the Ringel-

- Mann Smoke Chart isa reasonable standard of measure-

’

‘ment and that, in-respect tu the ‘opacity’ standard,

section 60 of Ordinance No. 90000 is not unreasonable.

The plaintiffs contend section 60 of Ordinance No. °

90000 is une onstitutional for the reason that the exemp- —

tion of “heat processing eqiupment”’ from the restric-

‘tions of section 60, under which the plaintiffs are regu-

lated, is arbitrary.aud capricious. :

This: contention requires the determination of

whether the city of Seattle has made a. reasonable

«18

classification by exempting heat procesSing equipment

from section 60. With respect to testing the constitu-

_ tionality of. legislative tasstications, we stated. in.

Clark v. Dwyer, .56 Wn. a 425, 353 P.(2d) - 941 |

(1960) :

‘‘Article 1, § 12 of the state constitution and the

fourteenth amendment to the Federal constitution,

prohibiting special privileges and immunities and -

guaranteeing equal protection of the laws, require

that class legislation must‘apply alike to all persons .

within a class, and reasonable ground must exist

for making a distitiction between those within, and

those without, a designated elass. Within the limits

of these restrictive rules, the legislature has a wide -

measure of discretion, and its determination, when |

expressed in statutory enactment, eannot be suc-

cessfully attacked uiiléss it is ‘manifestly arbitrary, si

unreasonable, inequitable, nas unjust. . a

The plaintiffs contend that, aide section 60 of Ordi- .

nance No. 90000, they are forbidden to emit air con-

taminants’in the form of smoke ‘which exceeds 40 per

cent opacity whereas heat processing equipment is per-

mitted to contaminate the air with smoke in any amount

' it wishes. _The defendant’s reply to this contention is

that the exemption of heat processing equipment from

~ section 60 is not unreasonable inasmuch as it is, instead,

directly controlled by section 80 which ee % the

emission of dust from such equipment.

The plaintiffs’ contentipn i is premised on the assump- ;

tion that dust and smoke are different aiz‘contaminants.

An examination of the ordinance on its face appears to

support the plaintiffs’ contention since smoke and dust

are defined and controlled separately. However, the

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ordinance must be considered in its entirety. It cannot

_ be limited to labels on definitions, but must be considered

from the standpoint of the coutents of such\definitions

in relation to the purpose of the ordinance. | :

We believe the primary purpose of ‘Ordinance No.

90000 is the regulation of air contaminants i in the form

of solid particles, inasmuch as the measurements which

re used to test air contamitrants, viz., the process

en table and the Ringelmann Smoke Chart, are .-

primarily. designed to measure the amount of solid

particle colitaminants emitted into‘the air. The ordi-

nance defines ‘‘dust”’ as ‘An air contaminant consist-

ing of solid particles, capable of being air-borne.’’

(Italics ours.) ‘‘Smoke”’ is defined as ‘‘ An air contami-

nant consisting of a visible air-borne concentration of

combustion produced solid particles and other matter.”’

(Italics ours.) We therefore conclude that, within the

purview of the ordinance, *‘smoke” consists substanti-

ally of air-borne solid particles which fall within the

definition of ‘‘dust’’ and that the regulation of ‘‘dust”’

inherently constitutes the regulation of **smoke.”’

The municipality of Seattle, in the exercise of its

police power for the protection of the publie health and

welfare, may reasonably regulate the emission of air

contaminants in the form of solid pa rtic ‘les according to |

any reasonable classific ation. The question then re-

mains whether the regulaticn of solid particles emitted

from heat processing equipiuent on the basis of the

process weight table and the regulation of solid particles

emitted from burning conducted by the plaintiffs on thé

basis of the Ringelmann Smoke Chart constitute reason-

able regulations based-upon reasonable classifications,

* 20

It is conceivable that emissions from heat processing

equipment raise problems of detecting solid particles

that are not combustion produced. The Ringelmann

Smoke Chart is designed primarily for the detection of

* combustion produced black soot particles. See Faith,

Air Pollution Control, pp. 84-86 (1959). It therefore

follows that the emission of solid particles from heat

processing sources, conceit ably, can be more.effectively .

regulated by measuring the content of the emission by -

the process weight table rather than by the Ringelmann

Chart.

We conclude that the use of process weight tables for

the control of solid particles eniitted from heat: ‘process-

‘ing equir uent and the use of the Ringelmann Chart —

for the control of solid particles emitted from. other. -

sources of burning are reasonable regulations ‘based

-upen reasonable classifications. The plaintiffs have

therefore failed to establish that the control exercised

by the sidinance over their buyning activities is dis-

criminatory and in contravention of Art. 1, § 12 of the

staie constitution and the fourteenth amendment to the

Federa! constitution. .

The plaintiffs contend that compliance with the ordi-

nance fakes it economically. infeasible for a continua-

tion of their business and that the ordinance is therefore

oppressive and a taking of their property without due

compensation. Evonomic ha rdships~often. inevitably .

result from laws and ordinances enacted or adopted for

the protection of the. public health and welfare; this,

however, cannot affect their constitutional validity

unless they “are shown to be clearly unreasonable and

.

“par

21

¥

discriminatory. Northwestern Laundry v. City of Des

Moines, 239 U.S. 486, 60 L.Ed. 396, 36 S.Ct. 206 (1915) ;

Chicago & Alton R. R. Co. v. Tranbarger, 238 USS. 67,

59 L.Ed..1204, 35.8.Ct. 678 (1914) ; Reinman:v, ‘City of

Little Rock, 237 U.S. 171, 59 L.Ed. 900, 358. Ct. 511

(1914). The plaintiffs have not shown that Ordinance

No. 90000 is unreasonable or diser iminatory, and their

| contention, therefore, cannot be sustained.

The other contentions raised by the plaintiffs chal-

lenging the constitutionality of the ordinance are un-

| supported by authority, and we find them to be without

~ merit. |

The judgment of the. triai court is athrened.

+: HUNTER, J.

WE CONCUR: "es

Ort, C. J.; Hamitton, J.: . FINLEY, J.; RosELLINI, J.;

Hate, J.

~ Weveoneur in the result:

DonwortH, J.; Weaver, J.; HILt, J. -

23

‘APPENDIX “B”

IN THE SUPREME COURT OF THE STATE

OF WASHINGTON, .

JOHN SITTNER, et al., Appellants, hie

: vs. ; No. 36614

City oF SEATTLE, a municipal cor- ; En Bane

poration, - . Respondent.

: ORDER DIRECTING CLARIFICATION

_ Ir Is Heresy Orperep That a clarification be made .~

in the opinion filed in the above-entitled cause on

August 29, 1963, appearing in 162 Wash.. Dee. 819; and

Thai the following’ be substituted for. the first two

sentences in the last paragraph on page 822 and end-

ing on page 823 of the opinion:

“The plaintiffs’ contention is pr emised on the as- -

sumption that dust and smoke art different air contami-

nants, and that the following finding of fact of the trial

court is the law of the case since no exception. was taken

'- thereto:

‘“«*That a logical and reasonable distinction in

fact does exist between dust _" smoke as defined in the

‘ordinance.’

‘We determine the foregoing purported finding of

fact’ to involve no factual issue: that it is a construction

of the ordinance and thus constitutes a conclusion of law

which is not binding on this court. Bedgisoff v. Morgan,

23 Wn. (2d) 737, 162. P.(2d) 938 (1945). See Kane v.

K beers 50 Wn. (2d) 778, 788. 314 P. (2d) | 672 (1957) ; and

%

cases cited therein. An ex nation of the ordinance on

its face appears to support the plaintiffs’ contention

that smoke and dust are different air contaminants since

smoke and dust are defined and controlled separately.’’

Dated this 7th day of November, 1963.

. aa _Ricuarp B. OTT

ee Ree Ee “Chief Justice.

Hii, Jz; Donwortu, J.; FINLey, J.; WEAVER; J.;

ROsELLINI, J. ; ; HAMILTON, J.; ‘Hae, J.; ; Hunter, J.-

ce

0

APPENDIX “C”

_° Ordinance No. 90000

AN ORDINANC E relating to air pollution, creating an

air Pollution Control Advisory Board, regulating

_. emissions of air, contaminants, — offenses

- and prescribing penalties.

~~ Be Tt Orpal yep. BY THE City oF SEATTLE AS FouLows:

sg

“Section 10. ( Definitions) ‘Certain Words and terms

used in this ordinance, unless clearly inconsistent with

their context, shall inean as follows:

Air CONTAMINANT. Any air-borne solid, liquid, or

gaseous matter, except air or uncombined water.

Air Pouivtion. The placing or r presence e in the air of

‘air contaminants. ae

Dust. An air contaminant consisting of solid parti-

eles, capable of being air-borne.

FvEL Burnxinc EquirMeENt. € ideal or industrial

furnaces or comparable devices, the principal purpose

-of which is waste disposal, or the production of hot air, —

hot water, or steam.

Heat PRocessinG EQuipMENT. Industrial furnaces or

comparable devices, the principal purpose of which is

‘the processing of material through the use of heat.

Process WEIGHT PER Hour. The total weight of any

material, except liquid or gaseous fuel or uncombined

* water, introduced into any process in-oneé (1) héur; or,

S---<els

for cyclical processes, the total weight of any suc h

matter introduced into any process during one (1) com-

plete cycle of operation of suc ‘+h process, divide d by the

number of hours in such eyele.

26

Smoke. An air contaminant consisting of a visible

air-borne concentration of combustion produced solid

- particles and other matter.

. Section 20. (Air Pollution Control Advisory Board )

There shall be an *Air Pollution Control Advisory

Board,”’ the members of which shall be:

- 1, One person, representative of each of the follow-

ing: :

American Institute of Chemical Engineers, Puget

Sound Chapter

American Society of Mechanical Engineers, Se-

attle Chapter

Apartment Operators Association of Seattle

Association of Washington Industries

- Building Owners and —— Association of

Seattle

Construction Industry

“nvironmental Research Laboratory, University

of Washington

Lumber Industry

Seattle Chamber of Conimerce

2.- Five persons, representative of the general public.

3. The Director of Public Health, ex officio.

4. The Superintendent of Buildings, ex officio.

5. pray Chairman of the Public Safety Committee of

the City Council, ex officio.

Section 30. ( Membership ) Members of the Air Pollu-

tion Control ‘Advisory Board, other than ex officio, shall

be appointed by the Mayor, subject to confirmation by

the City ¢ ‘ouncil, and vacancies among such members

27

shall be filled in the same manner. Upou naming of the

appointive members of the first Board, the Mayor shall

designate three (3) such members to a term ending De- .

cember 31, 1961, four (4) such members to a term end-

ing December 31, 1962, three (3) such members to a

term ending December 31, 1963, and four (4) such men-

bers to a term ending Deceniber 31, 1964; thereafter,

such members shall be appointed for aterm of four (4)

years ending December 31 of the fourth year of said

term. ‘ , : 3

Section 40. (Organization) The Air Pollution Control

~ Advisory Board shall elect a Chairman, who shall serve

at the pleasure of the members. Such Board may adopt

rules of procedure and shall meet on call, subject to

timely notice.

Section 50. (Duties) The Air Pollution Control Ad-

visory Board shall study the control of air pollution

and the administration of air pollution regulations and - .

shill seek prac tical means of measuring and controlling.

~ emissions of specific air contaminants. Such board may

hold hearings and make recomme mndations, but it shall

act in‘an advisory capacity only.

Section 60. (Smoke ): It is unlawful to catse, suffer

or allow emissions of smoke from any source other than

heat processing equipme nt. the opacity of which is a

te or more than forty per cent (40° ), except as follow.

1. For a total of not more than four (4) minutes in

any sixty (60) minutes, when it stall be sixty per

cent (60°, ) or less.

9 When building # new fire. for a total of not more—

than twelve (12) minutes in any, sixty (60)

28

. minutes, when it spall be aay per cent (60% ) « or -—

less.

3. Temporarily, un to breakdown of equipment, and

provided that repairs are promptly made.

4. During a time for compliance with this ordinance ;

fixed by the Superintendent of Buildings as pro-

vided herein.

The per cent of opacity of emissions of smoke shall be

measured by methods equivalent to those set forth in

‘Information Circular 7718, ‘Ringelmann Smoke -

Chart,” edition of August, 1955, published by” the |

United States Bureau of Mines (C. F. 241089), a copy.

of which is filed with the City Comptroller.

‘Section 70. (Dust from Fuel Burning Equipment)

a It is unlawful to cause, suffer or allow emissions of

effluent from any fuel burning equipment the dust con-

tent of which is more than eighty-five hundredths (0.85)

pounds of dust per one thousand (1000) pounds of

"effluent, adjusted to fifty per cent (50% ) excess air for

products of combustion, except as follows:

1. Where the dust content of the effluent is con-

- trolled through the use of dust Separating equip-

- ment and provided that. such: equipment shall

_ collect: seventy-five per cent (75%), if installed

prior to the effective date of this ordinance, or

etgmty- five per cent (85% ) if thereafter inistalled,

of all dust in the effluent from the fuel burning

equipment.

Temporarily, due to breakdown of equipment and

provided that repairs are promptly made.

3. During a time for compliance with this ordinatice

fixed by the Superintendent of Buildings as pro-

vided herein.

to

4

29

Section 80. (Dust from Heat Processing Equipment

and Other Sources) It is unlawful to cause, suffer or

allow emisisons of dust from any heat processing equip- A

ment or from the milling, grinding, crushing or han-

dling of any material in quantities exceeding that set

forth in the following table, except as follows:

1.

Where the processing equipment has been in- —

stalled prior to the effective date of this ordinance,

and where EMISSIONS OF DUST ARE IN

EXCESS OF THOSE SET FORTH IN SAID

TABLE BUT ARE controlled through the use of

dust separating equipment, provided, that such |

DUST SEPARATING equipment shall collect

not less than ninety-éight and two tenths per cent

(98.2%, ) of all dusi im the effluent from the

process.

Temporarily, due to breakdown of equipment, and

- provided that repairs are promptly made.

” . . . *

During a time for compliance with this ordinance

fixed by the Superintendent of Buildings as pro-

J

vided herein. =, * of Vm

‘os,

Q 30

’ TABLE

© Maximum. -

a ze Allowable

Process Weight _ Dust Emission

Pe# Hour Per Hour

(Pounds) (Pounds)

100 "+ 9.60

1,000 2.95

2,000 4.75

3,000. 6.35

’ 4,000 8.00

5,000 a * 9.65 .

6,000 _—- 11.30

7,000 12.90

8,000 14.30

9,000 15.50

10,000 16.65

. 12,000 18.70

14,000 20.40

16,000 “21.60

18,000: 22.80

20,000 24.00

25,000 27.40

30,000 30.90

~ 40,000 37.00 |

- . §0,000 42.50

60,000 48.00

70,000 . 52.50

100,000 75.00

150,000. 112.50

200,000 150.00 .

250,000 - - 187.50

225.00

“B81

Where the process weight per hour is between two listed °

‘figures, such process weight and maximum allowable °

dust emission per hour sball be interpolated accord-

ingly. , ;

‘Section 90. ( Trae sate Dist Generally) It is unlaw- 7

ful for anyone to cause, suffer or allow the discharge of

‘dust particles which become deposited upon the ieal -

‘property of others, and which are of such size and

nature as to be readily recognizable and traceable to

their source, except as follows:

1. Dust as specified and when regulated as set forth

in Sections 70 and 80 of this ordinance.

2. Temporarily, due to breakdown of equipment, and

provided that repairs are promptly made.

3. During a time for compliance with this ordinanee,<

fixed by the Superintendent of Buildings as pra

vided herein. - "att

Section 100. ( Niiciiaeat’ The Repesinbiedent of

Buildings shall enforce this ordinance and may adopt

rules and regulations pursuant thereto: he may enter

any building or premises at any, reasonable time to

perform any of the duties imposed on him by this ordi- -,

nance, and he shall inspect any premises which he

may reasonably believe to be a source of air pollution.

Section 110. (Notice) Ff the Superintendent of Build-.

ings.finds a violation of this ordinance, he shall give

particular written notice, by mail or by posting on-the

premises, to the owner or operator of the equipment or

premises the source thereof, to comply with this ordi-

nance within a reasonable time’by him fixed. *

Sectjon 1 120. (Extension of Caer Time)’ The

ee

° SRE PLDT Lg MEE ky,

32

e

owner or operator of equipment or premises found by

the Superintendent of Buildings to be the source of a

violation of this ordinance may request an extension of

compliance time, and if the Superintendent of Build-

ings shall find that immediate compliance with this

ordinance is unreagpnable, he shall then grant an exten-

sion of compliance time, for not more than one (1) year

for any one (1) such extension. In considering a.request

for an extension of compliance time, the Superintendent

of Buildings shall take into account such factors as

practicability, availability of equipment and relative

- benefits to the conununity.

Section 130. (Hearing) The owner or operator of the

equipment or premises concerned may request a hedring

before the Superintendent of Buildings and the Air .

Poliution Control Advisory Board within ten (10) days

after the date of notice of a Kinding by the Superintend-

ent of Buildings thafa violation of this ordinance exists,

or not less than thirty (30) days before expiration of a

time for compliance with this ordinance fixed by the

Superintendent of Buildings as provided herein, and,

within a reasonable time, such hearing shall be held.

Section 140. (After Hearing) After a hearing as pro--

vided in this ordinance the Superi: itendent of _Buiidings

may fiud that a condition such as to cause violation of

this ordinance uo longer exists, or he may reaffirm bis

finding of-a violation of this ordinance, and he imay or

tuay vet grant au extensioy of time for compliance.

herewith as provided herein, but he shall do so within

ten (10) days after date of such hearing.

Section 150.-( Posting and Sealing ) If, upon ¢ “xpirae

‘tion of dll time for compliane € with this ordinance fixed

7°

F .

2 RE TER Lethe SIPs LOCI ILO DEES LG SNe PRAT AN 80 a ng oe ps,

&..- «88

as provided heréin, the Superintendent of Buildings

shall tind that a violation of this ordinance then exists,

; he shall so notify the owner or operator, and if, ten (10)

days after date of such notice, the condition yet exists

- he shall designate the equipment or premises the source -

thereof, by affixing his seal, posting a notied, or other-

wise, as unlawful to operate or occupy until such time

as this ordinance may be complied with; provided, that’

within said ten (10) days, the owner or operator of such

equipment or premises may appeal to the Board of

Public Works from the finding of the Superintendeuit

of Buildings, and the Board of Pubiie Works shall hold

a hearing on such appeal, and may. affirm, reverse or

modify the finding of the Superintendent of Buildings ;

and, pending a decision by the Board of Public Works

on said appeal, the Superintendent of Buildings shall

take no action to designate such equipment or premises.

as unlawful to operate or oceupy. |

Section 160. (Unlawful Use) It is unlawful te-operate .

- any equipment, or to occupy any premises, designated

as unlawful to operate or occupy by the Superintendent

of Buildings as provided in,this ordinance. except upon

his written.authority so to do. | ee ; os

y

f -

Section 170. (Penalty) Anyowe violating or failing

to comply with this ordinance, uUpoeL convietion thereof,

shall be’ punished by a. fine of not more than Three

Hundred Dollars ($300.00), or by imprisonment for not

more than winety (90) days, or by both such fine and im-

prisonment, and each day that anyone shall continue:

to violate or fail td comply with this ordinance shall be

“a separate offense.

HINES ee ES ERA

34

Section 180. (Sev erability) Should any section, sub-

section, paragraph, sentence, clause or phrase of this

ordinance be declared unconstitutional or invalid for

any reason, “such decision shall not affect the validity

of the remaining portions of this ordinance.

Section 190. This ordinance shall take effect and be j in

foree thirty days from and after its passage and ap-

. _ proval, if approved by the May or; otherwise it shall.

take effect at the time it shall become a law under the

provisions of the city charter.

Passed by the City Council the 6th day of init,

1961, and signed by me in open session in authentication

of its passage this 6th day of Febr uary, 1961.

Davip LEVINE ;

‘President of the City Couneil.

_ Approved by me this 9th day of February, 1961.

Gorpon S. CLINTON

Mayor.

| Filed “ me this 9th day of February, 1961.

Attest: C. G. ERLANDSON

City Comptroller and City Clerk..

(Seal) By W. A. PERINE

tee Deputy Clerk.

Date of: official publication in the Daily Journal of

Commerce, Seattle, February 18, 1961.