Cottam v. Oregon City

• Decision Date: 14 December 1899
• Docket Number: 2,553.
• Citation: 98 F. 570
• Parties: COTTAM v. OREGON CITY et al.
• Court: U.S. District Court — District of Oregon

98 F. 570

COTTAM v. OREGON CITY et al.

No. 2,553.

United States Circuit Court, D. Oregon.

December 14, 1899

Bauer &amp Greene, for plaintiff.

A. S Dresser, for defendants.

BELLINGER District Judge.

This is an action brought against Oregon City, a corporation, and against Ryan, who is the recorder, and Burns, the acting chief of police, of the city, for damages resulting from the arrest and imprisonment of the plaintiff on what is admitted to have been a groundless complaint. The action taken by the officers grows out of an ordinance passed by the city requiring all persons selling goods, or soliciting the sale of goods, to pay a license tax therefor. It is alleged that the plaintiff is a citizen of the state of California, and is engaged in soliciting contracts for the sale of merchandise by the use of samples, in the states of Oregon and Washington, for the M. J. Keller Company, a corporation organized and existing under the laws of the state of California, and a resident and citizen of said state of California, engaged in the business of tailors and manufacturers of shirts. The material allegations of the complaint are 'That on the 28th day of December, 1897, at Oregon City, Clackamas county, Oregon, the defendants Thomas F. Ryan and Chas. E. Burns, while acting in their official capacities as recorder and chief of police, respectively, of defendant Oregon City, and within the scope of their authority and powers as such officers of said Oregon City, falsely and maliciously, and without reasonable or probable cause, arrested and imprisoned the plaintiff, and deprived him of his liberty for the space of a portion of two days, unlawfully and with force, on a pretended charge of soliciting contracts for the sale of goods, wares, chattels, and merchandise, by canvassing from house to house in Oregon City, without first having obtained a license from said city. That, at said time and place, defendants maliciously, unlawfully, and with force imprisoned plaintiff in the city jail of defendant Oregon City, and forcibly confined him there, in a foul and loathsome cell, during the night of December 28, 1897, whereby plaintiff was subjected to great suffering, pain, and humiliation, and to the great danger of his health. That thereafter plaintiff filed his petition in the county court of the state of Oregon for Clackamas county for a writ of habeas corpus, and on the 30th day of December, 1897, upon the trial of said cause, the plaintiff was released and discharged from the custody of defendants, and said prosecution, arrest, and imprisonment of plaintiff by defendants is wholly ended and determined.'

To this complaint the defendants demur.

It is claimed that the ordinance under which the license tax was attempted to be collected from the plaintiff for soliciting orders for goods manufactured in another state is an attempted restriction upon interstate commerce, and is therefore void; that the proceeding under such an ordinance was not for the enforcement of a police regulation, but for the collection of a license tax, and was solely for the private and pecuniary benefit of the city, as distinguished from the public good, public morals, peace, and good order; and that it is only when the acts complained of are in the exercise of this general or police power that the city and its officers are exempt from civil liability.

It is established, upon the authority of the supreme court of the United States, that an ordinance of the character in question, so far as it applies to persons soliciting the sale of goods in behalf of those doing business in another state, is a regulation of interstate commerce, and void. Robbins v. District, 120 U.S. 489, 7 Sup.Ct. 592, 32 L.Ed. 292. The rule does not extend so far as to make the ordinance void, except as it is applied to interstate business, and not then if the solicitor carries his goods with him, and thereby becomes a peddler, and so comes within reach of the general or police power of the state,-- a distinction, whether wise of otherwise, that is clearly made, although there was a strong dissent from the chief justice, concurred in by Justices Field and Gray.

If the officers of the city acted without any jurisdiction, if there was a clear absence of jurisdiction, if the ordinance was of such a character that any authority exercised under it was a void authority, the defendants are liable, and this would result in any such case, whether the court was of general jurisdiction or was inferior. There is a presumption that a court of superior jurisdiction acts within its jurisdiction unless a clear absence of jurisdiction is shown. This presumption does not arise where the jurisdiction of the court is limited, and this puts upon the latter a liability that does not exist in other cases. Cooley on Torts states the reason why the law should protect the one judge, and not the other, and why, 'if it protects one only, it should be the very one who, from his higher position and presumed superior learning and ability, ought to be most free from error,' to be because, 'a limited authority only having been conferred,, 'he best observes the spirit of the law by solving all questions of doubt against his jurisdiction'; that, 'if he errs in this direction, no harm is done, because he can always be set right by the court having appellate authority over him, and he can have no occasion to take hazards...