Dent v. Oregon City

• Decision Date: 02 January 1923
• Citation: 211 P. 909,106 Or. 122
• Parties: DENT v. OREGON CITY.
• Court: Oregon Supreme Court

211 P. 909

106 Or. 122

DENT v. OREGON CITY.

Supreme Court of Oregon

January 2, 1923

In banc.

Appeal from Circuit Court, Clackamas County; J. U. Campbell, Judge.

E. W Dent was convicted in the recorder's court of violating an ordinance of Oregon City. He removed the case by writ of review to the circuit court, which sustained the conviction and dismissed the writ, and he appeals. Reversed and remanded, with directions for his discharge.

Philip Hammond, of Oregon City, for appellant.

O. D Eby and D. C. Latourette, both of Oregon City, for respondent.

McCOURT J.

Plaintiff was convicted in the recorder's court of Oregon City upon a charge of violating an ordinance of that city. He removed the case to the circuit court by writ of review, where the action of the recorder's court was sustained, and the writ dismissed. Plaintiff appeals from the judgment of the circuit court.

Plaintiff was engaged in operating a motor bus or stage as a common carrier of passengers between Portland and Salem and over a regular route along public highways.

At the time that plaintiff is alleged to have violated the ordinance of Oregon City, he had paid the license fees and otherwise complied with all the requirements imposed by the general laws of the state of Oregon upon a common carrier of passengers by motor bus or stage from one point to another in the state of Oregon.

The ordinance of Oregon City which plaintiff is charged with violating was enacted by the common council of that municipality upon November 12, 1921. The ordinance defines the term "interurban public utility vehicle" as used therein, which definition embraces the vehicle operated by plaintiff, and then provides:

"* * * It shall be unlawful for any person to operate any 'interurban public utility vehicle' on any street of the city of Oregon City without first obtaining a franchise therefor from the city of Oregon City, and no such franchise shall be given or granted except by ordinance."

"Each such franchise shall be given and granted on such terms, provisions and conditions as may be determined by the ordinance giving or granting such franchise."

A penalty of fine or imprisonment, or both, is provided for violation of the ordinance.

It was the manifest design of the ordinance in question to deny to common carriers of passengers and freight by motor vehicles over the public highways between points outside of Oregon City the use of the streets of that city in transporting such passengers or freight, without permission so to do granted to each carrier by special ordinance enacted by the common council of the municipality. Plaintiff attacks the validity of the ordinance. He contends that the city is without power to prohibit the use of its streets by the common carriers defined in the ordinance; also that its authority in that respect is limited to regulatory ordinances which must contain permanent local provisions (not found in the ordinance in question) operating generally and impartially upon all common carriers who come within the scope of the particular enactment.

The right to use the public highways of the state by the ordinary and usual means of transportation is common to all members of the public without distinction, and extends to those engaged in the business of carrying passengers or freight for hire by such ordinary and usual means of transportation, as well as to individuals pursuing a strictly private business, subject to the power of the state, by legislative enactment, to impose reasonable and impartial regulations upon such use, which power may be delegated by the Legislature to the governing bodies of municipal corporations. 13 R. C. L. 251-255; White Oak Coal Co. v. Manchester, 109 Va. 749, 64 S.E. 944, 132 Am. St. Rep. 943; Bogue v. Bennett, 156 Ind. 478, 60 N.E. 143, 83 Am. St. Rep. 212; Commonwealth v. Stodder, 2 Cush. (Mass.) 562, 48 Am. Dec. 679; Sumner County v. Interurban Transportation Co., 141 Tenn. 493, 213 S.W. 412, 5 A. L. R. 765; Cicero Lumber Co. v. Cicero, 176 Ill. 9, 51 N.E. 758, 42 L. R. A. 696, 68 Am. St. Rep. 155.

"A highway is a public way for the use of the public in general, for passage and traffic, without distinction. * * * The restrictions upon its use are only such as are calculated to secure to the general public the largest practicable benefit from the enjoyment of the easement, and the inconveniences must be submitted to when they are only such as are incident to a reasonable use under impartial regulations." Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522.

The streets of a municipality are public highways of the state and the power of the Legislature to supervise, regulate, and control the use thereof is paramount, but the Legislature may delegate that power of supervision, control, and regulation to a municipality in respect to the public streets within its limits, or it may clothe some other governmental agency with that authority, so long as such streets are not diverted to some use substantially different from that for which they were originally intended. East Portland v. Multnomah County, 6 Or. 62, 65; Simon v. Northrup, 27 Or. 487, 40 P. 560, 30 L. R. A. 171; Brand v. Multnomah County, 38 Or. 91, 60 P. 390, 62 P. 209, 50 L. R. A. 389, 84 Am. St. Rep. 772; Bowers v. Neil, 64 Or. 104, 128 P. 433; Yocom v. City of Sheridan, 68 Or. 232, 137 P. 222; Stoppenback v. Multnomah County, 71 Or. 493, 142 P. 832; Cole v. Seaside, 80 Or. 73, 156 P. 569; Patterson v. City of Ashland, 95 Or. 233, 187 P. 593.

In the case of Brand v. Multnomah County, supra, Mr. Chief Justice Wolverton speaking for the court said:

"Primarily, the state has paramount control over all the highways within its borders, including public streets and highways within the confines of municipalities. Whatever authority a municipality may enjoy or possess, pertaining to its streets and highways must be derived from the Legislative Assembly through its franchise or charter; and such a corporation acts, if at all, through a delegated power emanating from the initial source. [ Citing cases.] Nor does the mere fact that the state has delegated certain powers to the municipality inhibit it from again resuming or exercising such powers."

By its charter Oregon City was given power and authority in respect to the use of the streets within its borders as follows:

"To regulate the use of streets, roads, and highways, and public places for foot passengers, animals, vehicles, cars, street railways, and locomotives; * * * to prescribe the width of tires of all wheeled vehicles, and the weight to be carried thereby for the protection of the streets and highways; * * * to control and limit traffic on the streets, avenues, and public places." Special Laws of Oregon 1903, pp. 649, 650.

The foregoing charter provisions empowered Oregon City to impose reasonable regulations upon those using its streets, adopted in view of the local conditions and requirements respecting the streets, the travel, and the public safety. Those regulations cannot be carried to the extent of prohibition where the use made of the streets is strictly for travel and passage by the usual and ordinary means, but where the use made of the streets results in an occupancy or appropriation of the streets, or any portion thereof, for private purposes beyond that involved in traveling upon such streets by the usual and ordinary means, the municipality may not only regulate, but it may prohibit that special or peculiar use of its highways. 13 R. C. L. 252; Thielke v. Albee, 79 Or. 48, 153 P. 793; Cummins v. Jones, 79 Or. 276, 155 P. 171; Frick v. City of Gary (Ind.) 135 N.E. 346; Sumner County v. Transportation Co., 141 Tenn. 493, 213 S.W. 412, 5 A. L. R. 765, and note p. 768; Greene v. City of San Antonio (Tex. Civ. App.) 178 S.W. 6; Ex parte Dickey, 76 W.Va. 576, 85 S.E. 781, L. R. A. 1915F, 840.

Some of the cases last cited contain statements to the effect that a municipality having power to regulate the use of its streets may entirely prohibit those engaged in the carriage of passengers or property for hire from using the streets within its boundaries for carrying on their business. That is true when the streets are used by such carriers as a stand for transacting business or soliciting patronage, stopping to let off or take on passengers, or any other use by which the streets, or a portion thereof, are occupied or appropriated to the exclusion of the remainder of the public, or are used in a manner that produces excessive wear upon the highways or endangers the public safety or which interferes with or obstructs the use of the streets as highways for the purposes of business or travel; but the statements are inaccurate as applied to the use of such streets by common carriers strictly as thoroughfares.

A common carrier of passengers or freight by means of vehicles in ordinary use has an equal right with all other citizens to use the public highways for purposes of traffic and passage, subject to reasonable regulations, and the exercise of that right cannot be entirely prohibited without...