City of Portland v. Schmidt

• Decision Date: 09 March 1885
• Citation: 13 Or. 17,6 P. 221
• Parties: CITY OF PORTLAND v. SCHMIDT.
• Court: Oregon Supreme Court

6 P. 221

13 Or. 17

CITY OF PORTLAND v. SCHMIDT.

Supreme Court of Oregon

March 9, 1885

George H. Williams and F.V. Drake, for appellant.

O.F Paxton and R.M. Dement, for respondent.

THAYER J.

This appeal is from a judgment of conviction of the appellant for the violation of certain ordinances of the city of Portland inhibiting the sale of liquor, etc., without license. The case originated in the police court of the city in which the appellant was accused by a written complaint, duly filed with having violated ordinance No. 3720 and ordinance No 3744. The latter ordinance purports to be an amendment of the former. The substance of the accusation was that appellant, being the keeper of a drinking-shop at a certain place in the city, did, on the ninth day of May, 1883, at such place, the same being then and there occupied by him, to be drank on the premises, sell to one W. Rott malt liquor, to-wit, one gill of beer, for five cents, without having obtained a license therefor, etc. The appellant, after having demurred to the complaint in the police court, and after the demurrer had been overruled by that court, interposed a plea of "not guilty." A trial was had thereon, resulting in the appellant's conviction, and upon which judgment was entered. An appeal was taken from the judgment to the circuit court for the county of Multnomah, and the appellant was again convicted, and the judgment from which this appeal was taken, was rendered against him.

There seems to have been no controversy, upon the facts, in the latter court. The appellant's counsel admitted all the material allegations of fact in the complaint. Numerous points of law were raised, but they were mainly against the validity of said ordinances; and I cannot see that there are any other questions to be considered by this court. The complaint seems to be sufficient, unless the ordinances are deemed invalid. The original ordinance, ordinance No. 3720, appears to have been approved by the mayor of the city March 8, 1883, and the amendatory ordinance, No. 3744, to have been so approved April 6, 1883. The latter only purports to amend two sections of the former,--sections 1 and 5 thereof. The attempted amendment of section 1 is very slight. The amount of license to be paid into the city treasury is $500 per annum, instead of $200 per quarter year, and the proviso that a license may be issued to sell beer and malt liquor for the sum of $50 per quarter, subject to conditions, etc., which was contained in the former, was left out of the latter. But the amendment of section 5 is very material, and I believe the objections urged by the appellant's counsel are more strongly against that amendment than any other parts of them. None of the objections which they have raised could have been made to said section 5 as it stood originally. It was then a simple provision to the effect that a license should not issue until the applicant should file with the auditor the receipt of the treasurer for the amount of such license; but by the amendment it has attached to it the condition that he shall also file bond in the sum of $5,000, with sureties of extraordinary character, and to become void only upon the performance of divers conditions, including a compliance with the conditions of all ordinances of the city. It is a serious question in my mind whether this provision is not so unreasonable as to render it a nullity, but the view I have taken of the case makes it unnecessary to decide the point. In my opinion, no provisions of the original ordinance which were valid have been repealed or superseded by provisions in the amended ordinance that are invalid. The common council of the city of Portland did not repeal any provision in said ordinance No. 3720, by adopting ordinance 3744, in consequence of conflicting provisions in the two ordinances,--if those in the latter are illegal,--although the latter ordinance contain a clause to the effect that all ordinances in conflict therewith are thereby repealed. That is the rule in regard to legislative enactments, and there is no reason why it does not apply the same to the adoption of ordinances by a municipal corporation.

In Harbeck v. Mayor of New York City, 10 Bosw. 366, it was held that, where some provisions of a statute were void for unconstitutionality, a general repealing clause in such statute, repealing all provisions of law in conflict with it, did not repeal provisions which conflicted only with the part that was void. I am convinced that the same result follows where a legislative body attempts to alter a valid section of an act by coupling with it provisions which it has not the power to adopt. Otherwise, the legislative will would be thwarted, as it is presumed that the legislature would not have attempted the change if it had supposed that it was not able to effect it in the manner indicated. A different construction would often result in serious consequences to the public interest. It follows from this, I think, beyond question, that it matters not, so far as this case is concerned, whether the amendment portion of said section 5 is valid or invalid. If it is a nullity, then the section as originally adopted, and as it stands in said ordinance No. 3720, is valid and complete. This conclusion may, perhaps, place the appellant's counsel in somewhat of a dilemma. If they succeed in proving that certain of the provisions of the amendatory ordinance are illegal and void, they at the same time establish that provisions of the original ordinance in conflict therewith stand unrepealed and unaffected thereby. They may be able to show that said section 5, as amended, is invalid; but at the same time they will prove that said section, as originally ordained, is a valid, subsisting provision. So it matters not, for the purposes of this case, whether the latter ordinance is good or bad, and it is entirely unnecessary to determine whether the provision requiring the filing of a bond, as therein provided, is valid or void.

The only question necessary to consider is whether there was any ordinance in the city of Portland, at the time the appellant sold the gill of beer, regulating and restraining bar-rooms and drinking-shops in that place. It will be observed, from an inspection of the acts of the common council of that city that strenuous efforts have been made, during the past two years, by the representatives of the people of that town, to regulate and restrain the sale of spirituous and malt liquors. But the logical effect of the argument for the appellant is that those efforts were abortive; that, instead of securing stringent laws for the government and control of those affairs, they have removed all restraint which was upon them, and have completely set them at large. It is claimed that the city of Portland can exercise no powers save such as are expressly conferred by its charter. This is true; and it might be further claimed that those powers should be strictly construed, upon the principle that all delegated powers are to be so construed. There is another principle, however, which must not be overlooked, and that is, that when an express power is granted, there is, also, impliedly granted the necessary power to carry it into execution. A grant of power to a person or corporation would be of little avail without the means of exercising it. Thus, the power granted to the common council of the city of Portland to license, tax, regulate, and restrain bar-rooms and drinking-shops, would, without the aid of any express provision, carry with it ample authority to properly exercise that power. The common council was thereby authorized to provide, by ordinance, the manner, and the terms and conditions, upon which such license should be issued, the amount of tax to be imposed, and the mode of collecting it, and to establish reasonable rules and restrictions to be observed in conducting the...