Ex parte Fine

• Decision Date: 14 February 1928
• Parties: EX PARTE FINE.
• Court: Oregon Supreme Court

264 P. 347

124 Or. 175

EX PARTE FINE.

Supreme Court of Oregon

February 14, 1928

In banc.

Original proceeding by R. C. Fine for a writ of habeas corpus to the chief of police of Oregon City. Writ sustained, and petitioner discharged.

This is an original action of habeas corpus. The petitioner, R. C Fine, was convicted of violating an ordinance of the city of Oregon City, ordained for the purpose of regulating "wholesale trade vehicles." The ordinance defines the term as any conveyance "operated for the purpose of selling or delivering goods, wares or merchandise to any person in Oregon City engaged in reselling the same, * * *" and excepts from its operation all such vehicles operated "for the purpose of selling or delivering any article of food in its raw state or condition, and which was actually grown or produced by the operator thereof or some member of his family."

The ordinance further provides that it shall be unlawful for any person to operate any "wholesale trade vehicle" on any street of said city without first obtaining a license therefor. The license fee is $120 per year, payable quarterly in advance. The ordinance prescribes a penalty not to exceed $50 fine or 30 days in jail.

The petitioner was sentenced to serve a term of 5 days in jail in default of payment of a fine of $10, and sued out an original writ of habeas corpus in this court when he was committed to the custody of the chief of police of said city.

Petitioner contends that the ordinance is unconstitutional and void because it violates a state law licensing automobiles because the fee charged is too large for regulation merely and because the ordinance does not bear uniformly upon all persons engaged in the same class of business.

The only question presented by this case is the validity of said ordinance. No question is raised about the right of petitioner to test the validity of the ordinance by this proceeding.

Elton Watkins and Johnston Wilson, both of Portland, for petitioner.

Schuebel & Beattie, of Oregon City, for defendant.

COSHOW J. (after stating the facts as above).

Chapter 371, § 26, page 729, General Laws 1921, reads, so far as applicable, as follows:

"The registration and license fees imposed by this act upon motor vehicles, motorcycles, motor bicycles, motor trucks, trailers, semitrailers and other road vehicles in this act described and upon the owners thereof by reason of such ownership, shall be in lieu of all other taxes and licenses, except municipal license fees

...