¶30
(dissenting) — The issue here is whether a municipality may constitutionally grant an exclusive *110franchise to two corporations to haul construction, demolition, and land clearing (CDL) debris while categorically denying like privilege to all others.
Sanders, J.*110¶31 As noted by the majority at 99, the ordinance in question15 was enacted at the request of one of the privileged CDL haulers, Rabanco, which, on May 22, 2002, “contacted the City [of Seattle] to alert it to the fact that its profits had been reduced by approximately 40 percent, due apparently to unlicensed haulers operating in the city.” Majority at 99. Accordingly the City simply legislated all competitors to Rabanco and Waste Management out of business — Ventenbergs among them. By necessary consequence all preexisting and potential private customers of the excluded haulers lost the opportunity to contract with haulers they found superior to the city’s designated private monopolists.
¶32 This no doubt enhanced the profits of Rabanco and Waste Management; however, I posit, enhanced corporate profit is too high a price to pay for the abrogation of any citizen’s constitutional rights, including those secured by Washington’s privileges and immunities clause, constitution article I, section 12. This provision of our Declaration of Rights simply and broadly provides:
No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.
Const, art. I, § 12.
¶33 As suggested by its language, the guaranty is absolute on its face (“No law shall be passed . . . .”); moreover, “[t]he provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.” Const. art. I, § 29. When applying this provision, as others, we are reminded by the constitution itself that “[a] frequent recur*111rence to fundamental principles is essential to the security of individual right and the perpetuity of free government.” Const, art. I, § 32.
¶34 Of course the purpose of this provision of the Declaration of Rights, as well as others, is to protect the citizen from governmental actions. It is therefore an exception to what government might otherwise be lawfully empowered to do, as is the federal Bill of Rights also an exception to what the United States government might lawfully do under those powers delegated to it through the United States Constitution. Alexander Hamilton articulated the principle when he argued eloquently against the incorporation of a Bill of Rights into the original United States Constitution because such an inclusion would purport to “contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted.” The Federalist No. 84, at 579 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
¶35 I make this observation to summarily render irrelevant the majority’s belabored claim that local government has a legitimate police power interest in the reasonable regulation of solid waste disposal reinforced by state statute. The existence of a governmental power is simply no answer to a claim that a person’s privileges and immunities rights have been abridged by the manner in which the government undertakes to accomplish its objective. This is to say the very obvious function of our Declaration of Rights, just as the federal Bill of Rights, is to preclude government from exercising its otherwise legitimate powers in a way which offends enumerated individual rights.16 Similarly, it goes without saying that local government functions even expressly authorized by state statute are no less subordinate to the ultimate demands of our constitution’s Declaration of Rights.
*112f36 So let us consider the privileges and immunities clause in this light: governmental action, no matter how characterized, no matter how expedient, no matter how meritorious, which nonetheless abridges those rights secured by the privileges and immunities clause, or any clause in the Declaration of Rights, cannot stand.
¶37 The privileges and immunities clause was adopted as part of the original state constitution, remaining unchanged since. At least 17 other states besides Washington have similar proscriptions on privileges and immunities,17 while some states have similar prohibitions on “special laws,”18 and other states require general laws to have a uniform operation.19 Washington’s clause was closely modeled after article I, section 20 of Oregon’s Constitution of 1857,20 which in turn took its language from article I, section 23 of Indiana’s Constitution of 185121 except for one critical difference: the word “corporation” was inserted. The Journal of the Washington State Constitutional Convention 1889, at 501 n.20 (Beverly Paulik Rosenow ed., 1999).
f 38 The origin of the privileges and immunities clause is steeped in history. In the 1640s antiroyalists published a pamphlet calling for an abolition of all royal privileges “ ‘whereby some persons are exempt from the force and power thereof, to the insufferable vexation and ruine of *113miltitudes of distressed people, may be forthwith abrogated’ ” and demanding “ ‘[tjhat all Monopolyes be forthwith removed, and no persons whatsoever may be permitted to restraine others from free trade.’ ” David Schuman, The Right to “Equal Privileges and ImmunitiesA State’s Version of “Equal Protection,” 13 Vt. L. Rev. 221, 222 & n.9 (1988) (alteration in original) (quoting The Case of the Army Truly Stated (1647) in Don M. Wolfe, Leveller Manifestoes of the Puritan Revolution 216, 215 (1944)); see also Darcy v. Allein, 77 Eng. Rep. 1260 (K.B. 1602) (commonly known as The Case of Monopolies, where Lord Coke opined monopolies are inherently harmful to the public good and contrary to the common law); Taylor v. Blanchard, 95 Mass. (13 Allen) 370, 372 (1866) (stating, “[t]he law has always regarded monopolies as hostile to the rights and interests of the public. One method of obtaining them in early times was by a grant from the sovereign to a particular individual of the sole right to exercise a particular trade. The mischief arising from these monopolies became so intolerable that the practice was suppressed by a clause in Magna Charta”).22
¶39 In the infancy of this country, a similar prohibition appeared for the first time as a constitutional guaranty in the Virginia Declaration of Rights of 1776 stating, “no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of publick services.” 2 Bernard Schwartz, The Bill of Rights: A Documentary History 231-34 (1971). Several of the original colonies shortly followed suit. Id. at 256 (“The Virginia Declaration of Rights set the example for eight of the 12 states which framed new Constitutions during the Revolutionary period.”).
*114f 40 These original states took the generally antiroyalist view, imbued with natural law principles of liberty and equality, and set it down in a positive law proscription that no man, or set of men, may be granted privileges not granted to everyone in the community. See Holden v. James, 11 Mass. 396, 405 (1814) (stating, “[i]t is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances . . ..”); see also Wally’s Heirs v. Kennedy, 10 Tenn. (2 Yer.) 554, 555 (1831) (stating the reason no special privileges are permitted is because “[w]ere it otherwise, . . . corporate bodies [ ] would be governed by one law, the mass of the community, and those who made the law, by another”).
¶41 During the mid-19th century “many states amended their constitutions to curb the granting of ‘special’ or ‘exclusive’ privileges, after a series of abuses by the relatively unfettered state legislatures responding to powerful economic interests.” Robert F. Williams, Emergence of State Constitutional Law: Equality Guarantees in State Constitutional Law, 63 Tex. L. Rev. 1195, 1207 (1985). During this time some states explicitly included corporations among the entities prohibited from receiving special treatment, reflecting the contemporary distrust of corporate power.23 As William Hurst noted regarding state constitutions such as Indiana’s and Oregon’s dating from this era,
“The persistent theme of the limitations written into state constitutions after the 1840’s was the desire to curb special privilege. The trend began with general or detailed prohibitions on the enactment of “special” or “local” legislation. . . .
“. . . [I]ts stimulus was in revealed fraud and corruption in public-land dealings and in the getting and granting of fran*115chises, subsidies, and rate privileges for turnpikes, canals, river improvements, toll bridges, and, of course, especially railroads and street railways.”
Jonathan Thompson, The Washington Constitution’s Prohibition on Special Privileges and Immunities: Real Bite for “Equal Protection” Review of Regulatory Legislation?, 69 Temp. L. Rev. 1247, 1253 n.31 (1996) (quoting James W. Hurst, The Growth of American Law: The Law Makers 241-42 (1950)).
¶42 For example, 12 years after Slaughter-House Cases, 83 U.S. (16 Wall) 36, 21 L. Ed. 394 (1873) had held a Louisiana legislative act of 1869 granting a certain company the exclusive privilege of slaughtering animals for food within New Orleans did not violate the privileges and immunities clause of the Fourteenth Amendment (while allowing that same might violate similar provisions of a state constitution),24 the Louisiana Supreme Court held the act was void by a subsequent state constitutional amendment prohibiting monopolies.25 Howell v. Butchers’ Union Slaughterhouse & Livestock Landing Co., 36 La. Ann. 63 (1884). The local government could regulate the how and where slaughtering could occur, but the state constitution prohibited any grant of exclusive privilege to one company. Id.
¶43 Similarly in City of Chicago v. Rumpff, 45 Ill. 90, 96, 97-98 (1867), the Illinois Supreme Court held a grant of an exclusive privilege was unconstitutional because “privileges . . . should be open to the enjoyment of all, upon the same terms and conditions!, otherwise] [i]f the common council may require all of the animals for the consumption of the city to be slaughtered in a single building or on a particular lot. . . what would prevent the making a similar contract with some other person, that all of the vegetables, or fruits, the flour, the groceries, the dry goods, or other commodities, should be sold on his lot . . . ?”; see also City *116of Hudson v. Thorne, 7 Paige Ch. 261 (N.Y. Ch. 1838) (stating, “common council cannot make a by-law which shall permit one person to carry on the dangerous business, and prohibit another, who has an equal right, from pursuing the same business”); Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn. 19 (1856) (holding a grant to a corporation for the exclusive right to lay gas pipes in the streets of a city is void as being a monopoly).
¶44 The rationale behind the prohibition on granting exclusive privileges was forcefully articulated by the Alabama Supreme Court in 1885:
In the struggling infancy of States and communities, the temptation has been very great to offer [exclusive privileges] as a reward to the investment of capital. The injustice and inequality of their operation have only been illustrated in the light of the rapid increase of our population, the steady growth of our wealth, and the wonderful discoveries of modem science. It now more fully becomes manifest that they prove iron bands to fetter the growth of public industry, enterprise, and commerce. Free competition in all departments of commercial traffic is justly deemed to be the life of a people’s prosperity The policy of the law, as now declared by our constitution, is as clear in the condemnation of the grant of irrevocable exclusive privileges conferred by franchise, as that of the common law was in the reprobation of pure monopolies, which were always deemed odious, not only as being in contravention of common right, but as founded in the destruction of trade by the extinguishment of a free and healthy competition.
Birmingham & Pratt Mines St. Ry. v. Birmingham St. Ry., 79 Ala. 465, 474-75 (1885).
f45 With this background in mind, I turn to the sociopolitical climate in the Washington Territory preceding the 1889 adoption of Washington’s privileges and immunities clause. “During the early period [of the Washington Territory], the legislature spent much of its time granting special acts or privileges. . . . [P]rivate laws authorizing the building of bridges, the establishing of ferries, or the incorporating of companies often with nearly monopolistic *117powers, were passed regularly.” 1 Wilfred J. Airey, A History of the Constitution and Government of Washington Territory 208 (1945) (unpublished PhD dissertation, Univ. of Wash.) (on file with Wash. State Law Library) (footnote omitted). For example, during the 1862-63 legislative session the legislature enacted 150 private acts, the majority being grants of monopolies or special charters. One newspaper at the time stated, “ ‘the whole Democratic strength of the House and Council inaugurated a perfect system of logrolling for private interests against the general welfare.’ ” Id. at 210 (quoting Washington Standard, Feb. 6, 1864).
f46 By the time the constitutional convention convened on July 4, 1889 in Olympia, the purpose of the special privileges and immunities prohibition was evident: it was “a response to perceived manipulation of lawmaking processes by corporate and other powerful minority interests seeking to advance their interests at the expense of the public.” Thompson, supra, at 1253.26 The framers drafted the constitution with the purpose of protecting “personal, political, and economic rights from both the government and corporations, and they strove to place strict limitations on the powers of both.” Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights, 7 U. Puget Sound L. Rev. 491, 519 (1984); see also Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake, 150 Wn.2d 791, 808, 83 P.3d 419 (2004) (“Washington’s addition of the reference to corporations demonstrates that our framers were concerned with undue political influence exercised by those with large concentrations of wealth ....”); Lebbeus J. Knapp, Origin of the Constitution of the State of Washington, Wash. Hist. Q. 227, 228 (1913) (stating Washington’s constitution “fully and explicitly” restricts the legislative *118“power to grant any person or class of persons any exclusive political honors or privileges”).
¶47 This purpose is reflected in the plain meaning of the clause itself.27 In 1889, as Ventenbergs correctly states in his brief, a “ ‘Privilege’ ” meant “ ‘[a] right peculiar to the person on whom conferred, not to be exercised by another or others.’ ” Opening Br. of Appellant at 16 (quoting William C. Anderson, A Dictionary of Law 811 (1889)). A “ ‘Special or exclusive privilege’ ” meant “ ‘[a]ny particular or individual authority or exemption existing in a person or class of persons, and in derogation of common right; as, the grant of a monopoly.’ ” Id. (quoting Anderson, supra, at 812). Thus, the plain meaning of the provision at the time of its adoption prohibits the legislature from derogating the common right of all for the benefit of one “citizen, class of citizens, or corporation.”28 Const, art. I, § 12; see also Const. art. I, § 8 (“No law granting irrevocably any privilege, franchise or immunity, shall be passed by the legislature.”); Const, art. XII, § 22 (“Monopolies and trusts shall never be allowed in this state . . . .”).
¶48 A digression into what is meant by a monopoly may be in order to fully understand the majority’s misinterpretation of the interest at stake. The Supreme Court of the United States stated:
A monopoly ... is an exclusive privilege conferred on one, or a company, to trade or traffick [sic] in some particular article;... in derogation of a common right. Every man has a natural right *119to buy and sell...; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious [as] something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one.
Proprietors of Charles River Bridge v. Proprietors of Warren Bridge, 36 U.S. (11 Pet.) 420, 451, 9 L. Ed. 773 (1837).
¶49 Since the Seattle ordinance carves out the common right to collect CDL waste for the benefit of two corporations, it grants a monopoly to those two corporations. There may be a distinction between collecting and disposing construction debris, a common right belonging to anyone interested in collecting debris, and collecting waste, a possibly proscribable activity due to its pernicious effects on the public. But see City of Spokane v. Carlson, 73 Wn.2d 76, 436 P.2d 454 (1968) (observing no distinction between odious and innocuous refuse). See also Smith v. City of Spokane, 55 Wash. 219, 220, 104 P. 249 (1909) (holding exclusive disposal of “all manure, garbage, offal, refuse, rubbish, dead animals, or any vegetable or animal matter” was a proper exercise of police power). However, whether Seattle can exclusively collect its own waste or its citizens’ residential waste is irrelevant because collecting CDL debris, prior to the challenged ordinance, was of common right, a lawful enterprise anyone could enjoy prior to the enactment of the ordinance.29 Nor does our “garbage collection” jurisprudence support its ordinance. Concurrence at 109.
*120¶50 In Smith30 the court assumed, as a factual matter, the exclusive franchise to collect garbage was necessary to promote a critical public health and safety interest. See Smith, 55 Wash, at 221; see also Br. of Appellant (Smith, Wash. Sup. Ct. No. 7897) (1909). Similarly, in Carlson, 73 Wn.2d at 83, the respondent was unable to meet his burden of proof to show the challenged ordinance was unrelated to a legitimate end. Both Smith and Carlson, however, support the proposition that an exclusive franchise is valid only if it is necessary to achieve a critical public health or safety goal. See Smith, 55 Wash, at 221 (“[Ain ordinance which [directly promotes public health] is a proper exercise of the police power.”); Carlson, 73 Wn.2d at 82 (“[I]n the exercise of the police power, the city may enact all laws necessary for the comfort, safety, and well-being of the city . . . .” (emphasis added)). If an ordinance granting an exclusive franchise is the only means necessary to achieve a legitimate public health and safety objective, then an incidental burden on the privileges and immunities guaranty may be no hindrance to the attainment of that legitimate public necessity. However, if an exclusive franchise is not the only necessary means or if the invocation of the police power is a pretext to some other goal, unrelated to a public health or safety necessity, then the privileges and immunities guaranty prohibits the exclusive franchise. See River Rendering Co. v. Behr, 7 Mo. App. 345, 355 (1879), overruled on other grounds by 77 Mo. 91 (1882); Smiley v. MacDonald, 42 Neb. 5, 12-13, 60 N.W. 355 (1894); In re Vandine, 23 Mass. (6 *121Pick.) 187, 191 (1828); see also Homes Unlimited, Inc. v. City of Seattle, 90 Wn.2d 154, 158, 579 P.2d 1331 (1978) (stating the valid exercise of police powers “requires that they be reasonably necessary to protect the public health, safety, morals, and general welfare and that they be substantially related to the legitimate ends sought” (emphasis added)). The assumptions made in the Smith and Carlson decisions are exactly in issue here: the ordinance is neither necessary nor substantially related to a legitimate exercise of police power. As succinctly stated by Justice Hill, “[t]he sole issue in this case is not whether [debris] shall be removed, but who shall remove [it].” Carlson, 73 Wn.2d at 84 (Hill, J., dissenting).
¶51 Under the ordinance the owner of the CDL debris may lawfully remove it himself — only he may not contract for its disposal with any company other than the designated monopolists: Waste Management and Rabanco. However, this monopoly grant is not necessary or substantially related to the promotion of the traditional police power interest of health and safety,31 and our case law consistently renders this type of legislation void. See, e.g., In re Habeas Corpus of Camp, 38 Wash. 393, 80 P. 547 (1905); City of Seattle v. Dencker, 58 Wash. 501, 108 P. 1086 (1910); Ralph v. City of Wenatchee, 34 Wn.2d 638, 209 P.2d 270 (1949).
¶52 In Camp, 38 Wash. at 397, we struck down an ordinance prohibiting the peddling of produce within Spokane’s city limits excepting farmers selling their own produce, on article I, section 12 grounds. The court found the city had the power to regulate produce peddling as a nuisance, but the ordinance violated article I, section 12 because “[o]ne class [was] permitted to indulge in the nuisance [while] others [were] unconditionally prohibited.” Id.
¶53 In Dencker, 58 Wash. at 510, we struck down an ordinance taxing vending machines but not in-person sales *122on article I, section 12 grounds because “[t]he tendency of this kind of an income is to foster monopolies, for a monopoly exists when the manufacture and sale of any commodity is restrained to one or a certain number.” The court concluded, “[i]f this ordinance can be sustained, . . . the constitutional guaranty [of article I, section 12] becomes a dead letter.” Id. at 510-11.
¶54 In Ralph, 34 Wn.2d at 643-44, we struck down a city ordinance requiring “itinerant” photographers to be licensed by the city on article I, section 12 (as well as Fourteenth Amendment) grounds. The court found the city had an interest in protecting the public from “unlicensed and uncontrolled” itinerant photographers. However, since the ordinance was applicable only to this class of photographers and was passed primarily to prohibit competition, it was invalid because “[it] was . . . designed to serve private interests in contravention of common rights, [as such] it must be condemned as an abuse of the police power, and, therefore, unreasonable and unlawful.” Id. at 644.
¶55 The rule in these cases is clear: restricting different providers of the same service violates article I, section 12. Nor is Washington alone in this rule. See, e.g., White v. Holman, 44 Or. 180, 74 P. 933 (1904) (holding the refusal to grant a license to operate a sailors’ boarding house for the purpose of maintaining only one boarding house in Portland to promote the welfare of the public and advance shipping interests violated the state constitution’s privileges and immunities clause); Moler v. Whisman, 243 Mo. 571, 147 S.W. 985 (1912) (holding a state statute prohibiting barber colleges from advertising and students at barber colleges from charging for their services to protect the public health creates a monopoly for those already skilled in the trade by discouraging others from learning the trade in violation of the state’s constitutional proscription on legislative grants of exclusive privileges); City of Tulsa v. Thomas, 1923 OK 222, 89 Okla. 188, 214 P. 1070 (holding a neutral ordinance regulating the jitney business was actually intended to confer an exclusive franchise in the busi*123ness in violation of the state’s constitutional proscription on granting exclusive franchises).
¶56 These cases are not to be celebrated as Lochneresque32 laissez faire antagonism toward socioeconomic legislation arising under the due process clause; rather, these cases disclose a fundamental concern with a particular form of political dealmaking, limiting sovereign police powers at the threshold of fundamental rights, exemplifying the purpose of article I, section 12. See Yelle v. Bishop, 55 Wn.2d 286, 291, 347 P.2d 1081 (1959) (“In determining the meaning of a constitutional provision, the intent of the framers, and the history of events and proceedings contemporaneous with its adoption may properly be considered.”); see also Thompson, supra, at 1262 (“The view that there is a tendency among lawmakers to produce legislation effecting a transfer from inherently unorganized to organized interests underlies state constitutional prohibitions on special privileges and immunities . . . .”); Knapp, supra, at 239-40 (discussing the founders’ keen awareness of the growing state’s need for corporate wealth with the necessity of curbing “unscrupulous power ... to prevent such legislation, under the influence of passion or prejudice as should be unjust to those who risk their fortunes on legitimate corporate enterprises”).
¶57 Fundamentally, “[f]or a violation of article I, section 12 to occur, the law, or its application, must confer a privilege to a class of citizens.” Grant County, 150 Wn.2d at 812.33 Here the question really boils down to whether granting two corporations to the exclusion of all others the exclusive privilege to haul CDL debris within the city of Seattle offends the equal privileges or immunities guaranty of those excluded.
*124¶58 We have stated not every governmental disparity of treatment between citizens necessarily involves a privilege of state citizenship. As opined in Grant County.
In this regard it must be remembered that not every statute authorizing a particular class to do or obtain something involves a “privilege” subject to article I, section 12. Instead, as this court made quite clear early in this State’s history, the terms “privileges and immunities”
pertain alone to those fundamental rights which belong to the citizens of the state by reason of such citizenship. These terms, as they are used in the constitution of the United States, secure in each state to the citizens of all states the right to remove to and carry on business therein; the right, by usual modes, to acquire and hold property, and to protect and defend the same in the law; the rights to the usual remedies to collect debts, and to enforce other personal rights; and the right to be exempt, in property or persons, from taxes or burdens which the property or persons of citizens of some other state are exempt from. [Thomas M.] Cooley, Constitutional Limitations (6th ed. [1890]) 597. By analogy these words as used in the state constitution should receive a like definition and interpretation as that applied to them when interpreting the federal constitution.
State v. Vance, 29 Wash. 435, 458, 70 P. 34 (1902); see also State ex rel. Cruikshank v. Baker, 2 Wn.2d 145, 150-51, 97 P.2d 638 (1940); Bussell v. Gill, 58 Wash. 468, 476, 108 P. 1080 (1910).
Grant County, 150 Wn.2d at 812-13.
¶59 As is apparent from the extended quotation from Vance, and our early cases outlined above, “privileges” for the purpose of article I, section 12 often pertain to citizen involvement in economic activities. Also as explained above, one of the principal reasons the framers enacted this clause was to prevent economic favoritism in the grant of privileges to favored corporations by the government.
¶60 Keeping in mind the text of the clause as well as its historical and precedential context, we must determine the contours of the claimed fundamental right which constitutes a privilege of state citizenship. Here that asserted *125right is the right to earn a living in a lawful occupation free from unreasonable governmental interference. Unfortunately the majority mischaracterizes the claim as the “ ‘right to hold specific private employment’ is a fundamental right of citizenship.” Majority at 103 (internal quotation marks omitted) (quoting Pet. for Review at 10).34 As we noted in Farnam v. CRISTA Ministries, 116 Wn.2d 659, 680, 807 P.2d 830 (1991), one may distinguish between a claim that “the right to private employment is a fundamental right” and the holding in Duranceau v. City of Tacoma, 27 Wn. App. 777, 780, 620 P.2d 533 (1980) that “[t]he right to hold specific private employment free from unreasonable governmental interference is a fundamental right” (alteration in original), quoted in Farnam, 116 Wn.2d at 680.
¶61 When properly articulated the right to hold private employment free from unreasonable governmental interference has been recognized as fundamental on numerous occasions. See Greene v. McElroy, 360 U.S. 474, 492, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959) (“[R]ight to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the ‘liberty’ and ‘property’ concepts of the Fifth Amendment.”); New State Ice Co. v. Liebmann, 285 U.S. 262, 278, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (“[Nothing is more clearly settled than that it is beyond the power of a state, ‘under the guise of protecting the public, arbitrarily [to] interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restric*126tions upon them.’ ” (second alteration in original) (quoting Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 513, 44 S. Ct. 412, 68 L. Ed. 813 (1924))); Truax v. Raich, 239 U.S. 33, 41, 36 S. Ct. 7, 60 L. Ed. 131 (1915) (“[T]he right to work for a living in the common occupations of the community is of the very essence of the personal freedom and opportunity that it was the purpose of the Amendment to secure.”); Dent v. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 231, 32 L. Ed. 623 (1889) (“It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and condition.”).35
¶62 A right is fundamental under the privileges and immunities clause in the sense that it “belong[s], of right, to the citizens of all free governments; and which ha[s], at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Corfield v. Coryell, 4 Wash. C. C. 371, 6 F. Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3,230). Of these rights, which belong to the citizens of a state by reason of such citizenship, the pursuit of a common calling free from unreasonable governmental interference is one of the most fundamental. Baldwin v. Fish & Game Comm’n, 436 U.S. 371, 387, 98 S. Ct. 1852, 56 L. Ed. 2d 354 (1978); see also John C. Eastman, Re-evaluating the Privileges or Immunities Clause, 6 Chap. L. Rev. 123, 126 (2003) (discussing the “fundamental natural rights that every legitimate government [must] respect, including the freedom of contract — specifically, the common law right to earn *127a living at a lawful occupation, free from unreasonable government interference”).
¶63 Furthermore, our state constitution protects an even broader panoply of rights for Washington citizens than they would otherwise enjoy under the federal constitution. The claim in Slaughter-House Cases, 83 U.S. 36, was strikingly similar to that here — an exclusive franchise to favored butchers violated the privileges and immunities of those excluded. Although a divided Supreme Court in one of its most controversial decisions limited application of the Fourteenth Amendment’s privileges and immunities clause exclusively to the rights associated with national citizenship, it was quick to hold the Fourteenth Amendment’s privileges and immunities clause securing the entitlement of federal citizenship in no way limits the scope of privileges or immunities granted by state citizenship. Slaughter-House Cases, 83 U.S. at 74-75.
¶64 Both state and federal precedent have repeatedly recognized the fundamental right to hold specific private employment free from unreasonable government interference. Duranceau, 27 Wn. App. at 780; see also Plumbers & Steamfitters Union Local 598, 44 Wn. App. at 915. Additionally, we have construed article I, section 12 to secure to citizens of this state “the right to remove to and carry on business therein,” Vance, 29 Wash, at 458, and specifically protect corporations as well as citizens from unfair monopolies.
¶65 The majority does not dispute the fundamental nature of the right to hold private employment free from unreasonable governmental interference; however, it summarily dismisses the claim by asserting,
[t]he type of employment that Ventenbergs seeks is not private — it is in a realm belonging to the State and delegated to local governments.
Majority at 103. This seems to be nothing more than a reformulation of the unsupported idea earlier noted that any governmental function pursued under the police power *128is somehow immune from challenge under the privileges and immunities clause “because the power to regulate solid waste collection lies entirely with the legislature and local governments, Ventenbergs has no fundamental right of citizenship to provide this governmental service.” Majority at 103-04.
¶66 However, just because the government sees fit to contract with certain vendors to supply a lawful service does not necessarily mean the government may constitutionally preclude other private vendors from rendering the same lawful service. The problem here is that CDL collection is undertaken pursuant to a governmental fiat that two, and only two, private, for-profit corporations — to the exclusion of all others including Ventenbergs — are privileged to collect CDL from every private person in Seattle.
¶67 And just because local government may have an interest in conducting or regulating removal of debris does not mean the manner in which it advances that interest may not violate the privileges and immunities clause or any other provision of our Declaration of Rights. See State v. Talley, 122 Wn.2d 192, 199, 858 P.2d 217 (1993) (“A state’s police power is limited, however, by constitutional protection afforded certain personal liberties.”); Olympic Forest Prods., Inc. v. Chaussee Corp., 82 Wn.2d 418, 435, 511 P.2d 1002 (1973) (“An otherwise legitimate exercise of the police power must fa[i]l if it violates specific constitutional requirements.”).
¶68 Suppose, for example, the city attempted to exclude an outspoken political opponent from solid waste collection because he participated in a political campaign against the mayor. Does the majority claim the nature of the service rendered exempts the city from our constitution’s free speech clause, article I, section 5? If the city were to restrict solid waste haulers to those of a particular religious affiliation, would the city be exempt from the religious freedom *129clause, article I, section 11? I know of no support for such a claim; certainly the majority doesn’t provide it.36
¶69 The only authority cited by the majority to support its rather novel claim of governmental immunity from provisions of the Declaration of Rights is its citation to Grant County, 150 Wn.2d at 814, which rejects the notion that citizens of this state have a “fundamental right of citizenship to seek annexation” because “[t]he power is entirely that of the legislature, which may delegate to the cities.” In context the Grant County court was simply stating its view that citizens have no fundamental right of citizenship to seek annexation because the whole idea, much less procedure, of annexation is no more “fundamental” than the statute which arbitrarily enacted it, a proposition with which I agree entirely. Here, however, the claim is not as mischaracterized by the majority: a “fundamental right of citizenship to provide this governmental service.” Majority at 103-04. Rather, there is a fundamental right to engage in the same business as other favored private companies free from unreasonable governmental interference.
¶70 While we recognize the right to earn a living in a lawful occupation free from unreasonable governmental interference, the question remains whether this particular regulation is unreasonable. While ordinarily this presents an inherently factual question requiring a trial on the merits rather than summary judgment, I think the factual record before us demonstrates the city’s only rationale for the exclusivity agreement is pure economic protectionism, whereas, by overwhelming authority, any rationale based on economic protectionism is inherently unreasonable.
f71 Economic protectionism which results in protecting a discrete interest group from economic competition is subject to a virtually per se rule of invalidity. See City of *130Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978). Where an economic benefit or privilege is granted to a small and select group, as it is here, the classification must be based on “real and substantial differences bearing a natural, reasonable, and just relation to the subject matter of the act in respect to which the classification is made.” State ex rel. Bacich v. Huse, 187 Wash. 75, 84, 59 P.2d 1101 (1936), overruled on other grounds by Puget Sound Gillnetters Ass’n v. Moos, 92 Wn.2d 939, 948, 603 P.2d 819 (1999). Furthermore, municipal action that favors select enterprises, to the disadvantage of all competitors, is invalid unless the municipality can demonstrate that it has no other means to advance a legitimate local interest.37 C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 392, 114 S. Ct. 1677, 128 L. Ed. 2d. 399 (1994). Thus, regulations restraining a common right, such as the pursuit of business without unreasonable governmental interference, are not allowable on the grounds of mere desire, expediency, or convenience. Ragan v. City of Seattle, 58 Wn.2d 779, 780, 364 P.2d 916 (1961).
¶72 The city may not, even under the guise of its police power, prohibit “ ‘particular classes of business, lawful in themselves, for the enrichment of another class.’ ” Ralph, 34 Wn.2d at 642 (quoting N.J. Good Humor, Inc. v. Bd. of Comm’rs, 124 N.J.L. 162, 168, 11 A.2d 113 (1940)). Govern*131ment ordinances which restrain competition, create monopolies, or confer exclusive privileges should be generally condemned and have long been “ ‘considered a species of fraud within the police power.’ ” Id. Such ordinances have the unfortunate result of “discouragfing] enterprise, paralyzfing] progress, [are] deprivation[s] of liberty, and [are] entirely inconsistent with the true principles and the genius of our government.” Dencker, 58 Wash, at 511. Thus, it follows that monopolies are “odious to the law,” and the law should concern itself to “restrain rather than to nourish them.” Id. at 510.
¶73 The city of Seattle has offered no convincing or legitimate rationale why Rabanco and Waste Management should be granted a monopoly privilege to haul CDL debris to the exclusion of all others. First, the city has not established that restricting of the market and granting a monopoly to only two private hauling companies has a “substantial relation to the accomplishment of some purpose fairly within the legitimate range or scope of the police power.” Wash. Kelpers Ass’n v. State, 81 Wn.2d 410, 417, 502 P.2d 1170 (1972) (emphasis added). The city contends there are important public health and safety justifications for regulating commercial waste and limiting competition to only Rabanco and Waste Management, which include (1) ensuring the city would continue to dispose of its waste at the environmentally sound Gilliam County, Oregon, landfill;38 (2) reducing rates to commercial generators of solid waste; and (3) promoting recycling in the commercial sector. At his deposition, however, Ray Hoffman, the director of strategic policy for Seattle Public Utilities, admitted none of the city’s public health or safety interests were dependent on limiting competition. Clerk’s Papers (CP) at 1615. Because the city’s grant of an exclusive privilege to Rabanco *132and Waste Management, to the exclusion of all others, lacks a rational basis to the city’s named objectives, the practical effect of the city’s actions is to merely protect these two companies from competition.
¶74 Second, the city has not demonstrated its named objectives could not be achieved without restricting the market to these two companies. In fact, Mr. Hoffman indicated that the city’s objectives could be achieved without restricting the market and creating an exclusive franchise: “The City can achieve its solid waste goals by contracting with one or more companies.” CP at 923. Thus, the record fails to demonstrate the city’s stated objectives could be achieved only “by the prohibition of what is in itself a completely lawful business” rather than by the use of alternative and reasonable regulatory measures. Ralph, 34 Wn.2d at 644. For instance, the city’s objectives may justify an ordinance that regulates in what manner CDL debris is to be hauled. However fulfillment of the city’s objectives does not justify enacting an ordinance restricting who can haul such debris. This is not an instance of the city collecting weekly universal garbage, but one where the city is prohibiting private individuals from freely contracting for specific CDL hauling requirements of other private persons. Insofar as Ventenbergs and other similarly situated companies are deprived of the common right to engage in this legitimate business, the city’s actions are arbitrary, unjust, oppressive, and not even within the scope of its police power, not that that would excuse violation of the privileges and immunities clause in any event.
¶75 As the city has not established a legitimate public purpose for restricting the market to only two companies, the city is not constitutionally entitled to award exclusive privileges for CDL hauling because the restriction impermissibly creates a monopoly39 and unreasonably interferes with Ventenbergs’ fundamental right to engage in business as other private companies.
*133¶76 Although I also believe there may be a possible violation of the bidding statute, I find it unnecessary to consider this point since even if the city complied with the statute, such compliance cannot excuse a privileges and immunities violation.
¶77 This case presents a textbook example of governmental corporate favoritism to advance the profits of the privileged few at the expense, and the extinction, of any potential competitors. It flies in the face of the State’s privileges and immunities clause, which was adopted to combat this exact sort of unholy alliance between government and big business and which ultimately disserves not only the excluded businesses but also the public in general. The majority today embraces a devil the framers banished with article I, section 12. As William Shakespeare put it, “tell truth and shame the devil.”40
¶78 Therefore, I must dissent.
Alexander, C.J., and J.M. Johnson, J., concur with Sanders, J.
Ordinance 120947, enacted October 7, 2002, codified as Seattle Municipal Code 21.36.012.
Compare Richard B. Sanders, Battles for the State Constitution: A Dissenter’s View, 37 Gonz. L. Rev. 1, 5-7 (2001-02) for further discussion of the point.
Ala. Const, art. I, § 22; Ariz. Const, art. II, § 13; Ark. Const, art. II, § 18; Cal. Const, art. I, § 7(b); Colo. Const, art. V, § 25; Conn. Const, art. I, § 1; Ind. Const, art. I, § 23; Iowa Const, art. I, § 6; Ky. Const. Bill of Rights § 3; Mass. Const. Pt. 1 (Declaration of Rights), art. VI; N.C. Const, art. I, § 32; N.D. Const, art. I, § 21; Or. Const, art. I, § 20; S.C. Const, art. I, § 3; S.D. Const, art. VI, § 18; Tex. Const, art. I, § 3; Va. Const, art. I, § 4.
III. Const, art. IV, § 13; Ga. Const, art. Ill, § 6, para. iv(a); Me. Const, art. IV, § 13; Md. Const, art. Ill, § 33.
E.g., Utah Const, art. I, § 24; Wyo. Const, art. I, § 34.
Or. Const, art. I, § 20 states, “Equality of privileges and immunities of citizens. No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
Ind. Const, art. I, § 23 states, “Privileges equal. — The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”
“ ‘No freeman shall be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or any otherwise destroyed ....”’ Magna Charta, ch. 39, quoted in Slaughter-House Cases, 83 U.S. (16 Wall) 36, 114-15, 21 L. Ed. 394 (1873) (Bradley, J., dissenting). But see John R. Commons, Legal Foundations of Capitalism 48-51 (Transaction Publ’rs 1995) (1924) (arguing the term “de libertatibus” in the Magna Carta did not mean economic liberty, but political liberty with the prohibition on monopolies beginning with Lord Coke and the common law).
Other state constitutions expressly excluding corporations from special privileges or immunities are Arizona (Ariz. Const, art. II, § 13); Florida (Fla. Const, art. Ill, § ll(a)(12)); Colorado (Colo. Const, art. V, § 25); Massachusetts (Mass. Const. Declaration of Rights art. VI); and Wisconsin (Wis. Const, art. IV, § 31). Other states expressly proscribe monopolies in their constitutions. See, e.g., La. Const, art. XII, § 12.
Slaughter-House Cases, 83 U.S. at 74-75.
See La. Const, art. XII, § 12.
The previously drafted constitution of 1878 contained a provision reflecting a similar distrust of corporations and legislated special privileges; it would have invalidated all special privileges not fulfilled in good faith by the time of the constitution’s adoption. 2 Wilfred J. Airey, A History of the Constitution and Government of Washington Territory 403 (1945) (unpublished PhD dissertation, Univ. of Wash.) (on file with Wash. State Law Library).
When interpreting constitutional provisions we first look to the plain language of the text, giving the words of the text their common and ordinary meaning as understood at the time of drafting. Wash. Water Jet Workers Ass’n v. Yarbrough, 151 Wn.2d 470, 477, 90 P.3d 42 (2004); see also Malyon v. Pierce County, 131 Wn.2d 779, 799, 935 P.2d 1272 (1997) (“Appropriate constitutional analysis begins with the text and, for most purposes, should end there as well.”).
“Constitutions . . . are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them, with the help of common-sense, and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” 1 Joseph Story, Commentaries on the Constitution op the United States § 451 (Melville M. Bigelow ed., 5th ed. 1891).
The majority asserts the collection of CDL waste was an unlawful enterprise because it required a certificate from the Washington Utilities and Transportation Commission, which Ventenbergs did not possess. Majority at 99 nn.2-3. However, a certification requirement does not turn a lawful enterprise unlawful since Ventenbergs (or anyone else) could have applied for and received the certificate to haul CDL waste. If the collection of CDL waste were truly unlawful, then the city of Seattle would not have had to pass the ordinance in question but merely enforce the law. The fact is the collection of CDL waste was a lawful enterprise, so the city of Seattle modified its ordinance not to ensure consistency with state law, as the majority asserts at 99 n.3, nor to protect the health, safety, and welfare of its citizens, as intimated by the concurrence, but solely to increase the profits of two privileged companies. The majority expressly recognizes this at 99: “Rabanco contacted the City to alert it to the fact that its profits had been reduced by approximately 40 percent.... Rabanco requested that the City . . . enforce the exclusivity provision.”
Responding to the majority’s claim that its decision does not really “ ‘embrace! 1 a devil the framers banished’ ” because Justice Dunbar, a signer of the constitution, also signed Smith, majority at 108 n.14, I am confident if Justice Dunbar were only with us today he would have written a more articulate dissent than this to denounce pure economic protectionism masquerading as a legitimate exercise of the police power. But more fundamentally, “the authoritative intent is that of the people who had the power to make it law [the ratifiers], not of the people who drafted the Constitution . . . .” Larry Kramer, Panel on Originalism and Pragmatism, in Originalism: A Quarter-Centuby of Debate 151,153 (Steven G. Calabresi ed., 2007).
See infra pp. 131-32.
Lochner v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), overruled in part by Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421, 72 S. Ct. 405, 96 L. Ed. 469 (1952).
Or “to any citizen . . . .” Const, art. I, § 12.
A full rendition of the text in the petition for review misconstrued by the majority follows:
In the briefing to the Court of Appeals, Petitioners demonstrated that the right at issue here met this test because the First Amended Complaint sought to vindicate Ventenbergs’ right “to pursue [his] livelihood! ] free from the interference of unreasonable and illegal governmental favoritism.” (CP 22.) In Washington, “The right to hold specific private employment and follow a chosen profession free from unreasonable governmental interference is a fundamental right which comes within the liberty and property concepts of the Fifth Amendment.” Plumbers & Steamfitters Union Local 698 v. Washington Pub. Power Supply Sys., 44 Wn. App. 906, 915, 724 P.2d 1030 (1986) (underline emphasis added).
Pet. for Review at 10 (alterations in original).
That these cases recognize this fundamental right on due process as opposed to privileges and immunities grounds does not negate the thrust of our case law recognizing this fundamental right under article I, section 12. See, e.g., State v. Carey, 4 Wash. 424, 30 P. 729 (1892) (applying art. I, § 12 to the medical profession); In re Habeas Corpus of Camp, 38 Wash. 393 (applying art. I, § 12 to fruit and vegetable peddlers); City of Spokane v. Macho, 51 Wash. 322, 98 P. 755 (1909) (applying art. I, § 12 to employment agencies); Dencker, 58 Wash. 501 (applying art. I, § 12 to retail sales); State v. W.W. Robinson Co., 84 Wash. 246, 146 P. 628 (1915) (applying art. I, § 12 to cereal and flour mills). These cases stand for the general proposition that a person has a right under article I, section 12 to pursue a lawful enterprise free from unreasonable governmental interference.
The majority attempts to reassure by stating any exercise of police powers violating these liberties would fail under its reasonability analysis. Majority at 104 n.ll. However, our individual liberties are inviolate to such analysis, not subject to the prevailing winds of reasonability.
These facts are similar to those in Craigmiles v. Giles, 312 F.3d 220, 221 (6th Cir. 2002), where the Sixth Circuit struck down a provision of Tennessee’s Funeral Directors and Embalmers Act limiting casket sellers to licensed funeral directors. The court found the provision lacked a rational basis and merely protected licensed funeral directors from competition. The Sixth Circuit explained such protectionism, in and of itself, is per se invalid when the same objectives can still be achieved without the unnecessary regulation:
Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose. See City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, 57 L.Ed.2d 475 (1978) (“Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected.”). See also H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38, 69 S.Ct. 657, 93 L.Ed. 865 (1949); Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411, 103 S.Ct. 697, 74 L.Ed.2d 569 (1983) (distinguishing between legitimate state purposes and “providing a benefit to special interests”).
Id. at 224.
In light of the majority’s claim that the Supreme Court of the United States has held a municipality without a municipal system of garbage collection may not constitutionally require private companies acting under individual contracts with customers to take collected waste to the city-owned transfer station, I fail to see how this concern makes the ordinance in question constitutionally permissible. See majority at 98.
How creating a monopoly “promot[es] competition,” majority at 105, is never explained.
William Shakespeare, The First Part oe King Henry the Fourth act 3, sc. 1.