City of Portland v. Yick

• Citation: 44 Or. 439,75 P. 706
• Parties: CITY OF PORTLAND v. YICK. [*]
• Decision Date: 01 March 1904
• Court: Oregon Supreme Court

75 P. 706

44 Or. 439

CITY OF PORTLAND v. YICK. ^[*]

Supreme Court of Oregon

March 1, 1904

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Wing H Yick was convicted of violating an ordinance of the city of Portland, and appeals. Affirmed.

C.M. Idleman and A.C. Palmer, for appellant.

J.J Fitzgerald and J.P. Kavanaugh, for respondent.

WOLVERTON J.

The defendant was convicted in the municipal court of the city of Portland of the violation of Ordinance No. 11,336, and appealed to the circuit court, wherein he was again convicted, and now appeals to this court.

He is charged with the violation of section 2 of the ordinance which provides that "no person or persons shall within the corporate limits of the city of Portland set up or keep, either as owner, proprietor, keeper, manager, or employé, with or without hire, lessee or otherwise, any house, shop or place for the purpose of selling any lottery ticket, certificate, paper or instrument, purporting or representing, or understood to be or to represent, any ticket, chance, share or interest in or depending upon the event of any lottery." Section 6 provides for the punishment of any violation of the ordinance by fine or imprisonment, or both. When the city offered evidence at the trial in the circuit court it was met with the objection by the defendant that the ordinance had not been adopted in the manner provided by charter and the rules governing the common council, and was therefore void and inoperative. None of the records of the common council relative to the adoption of the ordinance were introduced in evidence, but the court was asked to take judicial knowledge thereof, and thereby determine the validity of its adoption. Under section 27 of the city charter of 1898 (Sess.Laws 1898, p. 108), the common council was authorized to adopt rules for the government of its members and its proceedings. It was required, however, to keep a journal of its proceedings, and upon the call of any two of its members to cause the yeas and nays to be taken and entered in the journal upon any question before it. In pursuance of this charter regulation, the following among other rules were adopted, viz.: "Rule 26: No standing rule as provided by this ordinance shall be rescinded or suspended, except by vote of two-thirds of all the members present, and the ayes and nays shall be recorded on any motion to suspend a rule. Rule 27. Every ordinance shall receive three readings previous to its being passed, but shall not be read more than twice at any one meeting. ***" The journal shows that the ordinance was read the first time and second time by title, and, on motion of Councilman Harris, duly seconded and carried, rule 27 was suspended, the ordinance read a third time by title, placed upon its final passage, and passed by 11 yeas, giving the names of the councilmen voting yea. On the back of the ordinance, which contains the attestation at the bottom: "Passed the Council, March 21, 1900. A.N. Gambell, Auditor. Approved, March 22, 1900. W.A. Storey, Mayor"[44 Or. 442] --there are attached two slips, each containing the names of the councilmen, with the words, "Yeas," "Nays," at the top in separate columns. One of them bears at the top the notation in pencil, "Suspension Rule 27," and opposite each name in the column headed "Yeas" a perpendicular pencil mark. The other bears at the top the word "Passage," with a like mark opposite each name in the column headed "Yeas," thus indicating that rule 27 was suspended by a unanimous vote, and the ordinance passed by a like vote, the latter showing the vote to be the same as recorded in the journal.

Preliminarily it is urged that the courts will not take judicial knowledge of the acts of the common council leading to the adoption of an ordinance, but only of the text or provisions of the ordinance. It will be noted that the charter regulations relating to the keeping of a journal by the common council are almost identical with the requirements of the state Constitution for the government of each house of the legislative assembly. This court said in State of Oregon v. Rogers, 22 Or. 348, 364, 30 P. 74, Mr. Justice Bean announcing the opinion: "In Currie v. Southern P. Co., 21 Or. 566, 28 P. 884, we held that the court will take judicial knowledge of the journals of the Legislature for the purpose of impeaching the validity of the enrolled act on file with the Secretary of State; and when from such journals it affirmatively appears that the bill as filed in the Secretary of State's office did not in fact pass the Legislature, the courts will refuse to recognize it as a valid law; but every reasonable presumption is to be made in favor of the legislative proceedings; and when the Constitution does not require certain proceedings to be entered in the journal, the absence of such a record will not invalidate a law. It will not be presumed, from the mere silence of the journal, that either house has exceeded its authority or disregarded constitutional requirements in the passage of legislative acts." The bill which was the subject of controversy in that case passed the House and was amended in the Senate. When returned to the House that body concurred in the amendments. This was shown by the journal, but it did not show that the bill as amended was read section by section on the final passage, nor that the vote was taken by yeas and nays, as required by article 4, § 19, of the Constitution. Conceding that the yeas and nays should have been thus taken in that instance, the court further say: "We must assume, in the absence of a showing to the contrary, that the constitutional requirements were observed, and hold that the act under consideration was constitutionally passed." In the Currie Case, alluded to in the opinion of the court in State v. Rogers, supra, the bill went to the Senate after passing the House, and the journal shows that it was put upon its final passage, when it received 13 yeas and 11 nays. There were five absent and one senator was excused; "so," continues the record, "the bill failed to pass." There was an affirmative showing that the bill failed to pass, and the court took judicial cognizance of the record in the journal, and declared the act inoperative. The same principle was announced in McKinnon v. Cotner, 30 Or. 588, 591, 49 P. 956. The bill in that instance passed the House, went to the Senate, and was amended by the addition of section 8, being an emergency clause, and passed, when it was returned to the House and the amendment concurred in. This is all shown by the journals of the two houses, but no other reference is made therein to the bill, except to show that it was duly signed by the presiding officers. The enrolled act so signed was approved by the Governor, filed in the office of the Secretary of State, and published among the general laws, but it did not contain section 8, and the act was held valid because it...