(concurring) — I concur in the affirmance of the decree dismissing the action but upon a somewhat narrower ground than that adopted in the majority opinion.
Art. XI, § 11, of the state constitution vests in cities within their corporate limits the same police power as is possessed by the legislature. Detamore v. Hindley, 83 Wash. 322, 145 Pac. 462; Continental Baking Co. v. Mount Vernon, 182 Wash. 68, 44 P. (2d) 821.
The test as to the validity of such an ordinance as that involved here is the same as that applicable to a state statute. As was said in State v. Pitney, 79 Wash. 608, 140 Pac. 918, Ann. Cas. 1916A, 209 (affirmed in Pitney v. Washington, 240 U.S. 387, 60 L. Ed. 703, 36 S. Ct. 385):
“In determining whether the provisions of a law bring it within the police power, it is not necessary for the court to find that facts exist which would justify such legislation. If a state of facts can reasonably be presumed to exist which would justify the legislation, the court must presume that it did exist and that the law was passed for that reason. If no state of circumstances could exist to justify the statute, then it may be declared void because in excess of the legislative power.”
See, also, Wiegardt v. Brennan, 192 Wash. 529, 73 P. (2d) 1330.
Tested by these principles, § 3 (subd. 14) of ordinance No. 434 of the city of Cle Elum is a valid exercise of the city’s police power, since it clearly appears from what is said in the majority opinion that a state of facts can reasonably be presumed to exist which would justify its enactment.
*842Appellants seek to enjoin the enforcement of this ordinance against them and their customers who “stop, stand, or park” the front vehicle of their trucks in that portion of Second street which is within a radius of seventy-five feet of the fire station entrance while the trucks are being loaded or unloaded.
We have several times held that no one has an absolute right to use a street to conduct a business for private gain. The control which a city has over its streets is described in Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516, Ann. Cas. 1918C, 942, L. R. A. 1918B, 909, in this language:
“The streets and highways belong to the public. They are built and maintained at public expense for the use of the general public in the ordinary and customary manner. The state, and the city as an arm of the state, has absolute control of the streets in the interest of the public. No private individual or corporation has a right to the use of the streets in the prosecution of the business of a common carrier for private gain without the consent of the state, nor except upon the terms and conditions prescribed by the state or municipality, as the case may be. The use of the streets as a place of business or as a main instrumentality of business is accorded as a mere privilege and not as a matter of natural right.”
To the same effect are our decisions in Allen v. Bellingham, 95 Wash. 12, 163 Pac. 18, State ex rel. Schafer v. Spokane, 109 Wash. 360, 186 Pac. 864, and McGlothern v. Seattle, 116 Wash. 331, 199 Pac. 457.
In the present case, a state of facts not only can reasonably be presumed to exist which justifies the enactment of the ordinance, but such a state of facts has been actually proven in this case to exist; and I, therefore, concur in the affirmance of the trial court’s decree.
March 1, 1951. Petition for rehearing denied.