Donahue v. City of Portland

• Decision Date: 11 September 1940
• Citation: 15 A.2d 287
• Parties: DONAHUE v. CITY OF PORTLAND et al.
• Court: Maine Supreme Court

15 A.2d 287

DONAHUE

v. CITY OF PORTLAND et al.

Supreme Judicial Court of Maine.

Sept. 11, 1940.

Appeal from Supreme Judicial Court, Cumberland County, in Equity.

Suit by Timothy L. Donahue against the City of Portland and others to enjoin defendants from enforcing a portion of an ordinance. From an adverse decree, plaintiff appeals.

Appeal dismissed and decree affirmed.

Argued before BARNES, C. J., and THAXTER, HUDSON, MANSER, and WORSTER, JJ.

Verrill, Hale, Dana & Walker, of Portland (Brooks Whitehouse, of Portland, of counsel), for plaintiff.

W. Mayo Payson, of Portland, for respondents.

BARNES, Chief Justice.

On appeal by plaintiff. This bill in equity, filed on June 30, 1938, was brought by the plaintiff, owner and operator of a restaurant, in the City of Portland, engaged in the business of dispensing food, beer and ale, who represents himself as the holder of a State license for the sale of malt beverages, under the provisions of Chapters 268, Public Laws of 1933, 201, P.L. 1937, and 118, P.L. 1939, and lastly, if at all, by virtue of Chapter 160 of the Private and Special Laws of 1917, wherein it is provided that "The municipal officers of the city of Portland are hereby authorized to grant licenses for the following businesses and purposes for such periods of time and in accordance with such rules and regulations not inconsistent with law, and upon payment by the licensee of such fees, as the city council of said city may make and establish by ordinance, to wit: * * * victualers * * *'."

Plaintiff complains of unjust treatment of himself and his business under an ordinance, passed October 18, 1937, by the City Council of the City of Portland, being the municipal officers of said City of Portland, which, with omission of no consequence, reads as follows:

"Section 1. In accordance with Chapter 213 of the Private and Special Laws of 1915 as amended by Chapter 160 of the Private and Special Laws of 1917, the following fees are hereby fixed and determined by the City Council of Portland, and no person shall carry on any business herein named within the City of Portland without having procured a license and having paid to the City Clerk therefor the fee hereby fixed, viz:

* * *

* * *

Victualer—

-without beer

$10.00 per annum

with beer

35.00

advertising

victualer

with beer

1.50 " "

"Section 2. All ordinances or parts of ordinances inconsistent herewith are hereby repealed."

He alleges that the ordinance "imposes an extra tax or fee of $26.50" per annum, on the business of a victualer selling beer, and for that reason "is discriminatory, unauthorized, illegal and void."

With the City are joined the City Clerk and the Chief of Police.

Plaintiff prays that a permanent injunction enjoining the defendants and each of them and all persons acting in concert with them from enforcing that portion of the ordinance which imposes an extra tax or fee on the business of a victualer selling beer may issue. And that the plaintiff may have such other and further relief as the nature of the case may require.

Respondents deny that the ordinance, in so far as it imposes a higher fee on the business of a victualer serving food "with beer", is a tax on the business of selling beer; that the ordinance is discriminatory, unauthorized, illegal and void; that its enforcement will cause great and irreparable injury etc., and further answering say: "that as a class victualers serving beer and ale to their customers require and need from said respondent, City of Portland, much more supervision and regulation than such victualers as do not serve beer and ale to their customers, wherefore a greater expense is imposed upon said City of Portland for such supervision and regulation."

To be enforceable, municipal ordinances must be reasonable, and not repugnant to law. State v. Starkey, 112 Me. 8, 90 A. 431, Ann.Cas.1917A, 196, Lewiston v. Grant, 120 Me. 194, 113 A. 181.

In determining the validity of municipal ordinances, their reasonableness will be presumed. Etchison v. Frederick City, 123 Md. 283, 91 A. 161, L.R.A.1916C, 561.

But the power of the Court to declare municipal by-laws, enacted under general authority, invalid, if they are unreasonable, is unquestioned.

It is a power, however, to be cautiously exercised. When doubt exists,...