# Petition for a Writ of Certiorari — Sittner v. City of Seattle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1564%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 377 U.S. 906 ## Text . 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 é ~y } “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 aie o, ae : 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 . 6 =, ° ‘ ‘ . ' * ‘» ~. 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 / 3. 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“~>>. > =~ t®..° . & "Court of King County, State of f 4 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 Pd - ’ 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, yal Ys > oe. ° : E 6 go v 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 - —. . a 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 ~ 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 “ », — | 8 | 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 . 9 Pd 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- _- : y> ai ie 10 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 — 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. 4 ne 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 ey re Appendices are «* Appe mdix A—Opinion-of the W asbington § State Su- ° . preme Court Appendix B--Order Directing’C larification Appendix C—Seattle City Ordinance 90000. b : 15 23 25 < fe 15 - 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. ” : oa * } es, J es ee J "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. . > ieee | es ee ‘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 . ~~ 19 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---