Garbade v. City of Portland

• Decision Date: 15 February 1950
• Citation: 214 P.2d 1000,188 Or. 158
• Parties: GARBADE et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

214 P.2d 1000

188 Or. 158

GARBADE et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon.

February 15, 1950

Peter A. Schwabe, Portland, argued the cause for appellants. On the brief were Haas & Schwabe Portland.

Virgil H Langtry, Deputy City Attorney, Portland, argued the cause for respondents. With him on the brief were Alexander G. Brown City Attorney, and Marian M. C. Rushing, Deputy City Attorney, all of Portland.

A brief was filed by the following city attorneys as amici curiae: Chris J. Kowitz, Salem; James L. Hope, Astoria Charles K. McColloch, Baker; Charles G. Schneider, Gresham; Paul L. Patterson, Hillsboro; John N. Mohr, Hood River; Carl G. Helm, Jr., La Grande; Raymond G. Wood, Oceanlake; Edgar L. Martin, Sandy; Marvin O. Sanders, Springfield; David O. Bennett, St. Helens; and Neal W. Bush, Vernonia.

Before LUSK, C. J., and BRAND, BELT, ROSSMAN, BAILEY and HAY, JJ.

BAILEY, Justice.

Plaintiffs, Ted Garbade and Frank Boynton, brought this suit under the uniform declaratory judgments act, §§ 6-601 to 6-616, O.C.L.A., against the defendants, City of Portland and the Mayor, Commissioners, Chief Inspector of Licenses, City Attorney, and Chief of the Bureau of Police of the City of Portland, for the purpose of securing a judicial declaration that twenty-two ordinances passed by the City of Portland, as amendments to ordinance No. 76398, known as the License and Business Code of the City of Portland, are unconstitutional and void. These ordinances were enacted simultaneously on April 21, 1949, and, according to the provisions thereof, were to become effective on and after July 1, 1949. They are numbered 89173 to and including 89194, and they are intended to raise revenue, which the City Council of Portland found was necessary, for the proper operation of the city for the fiscal year 1949-1950. It was estimated, at the time of their enactment, that a minimum of $1,900,000 would be realized from them.

The assailed ordinances constituted an integrated revenue raising, or taxing, program by the city. Eleven of them increased existing license fees on certain designated businesses and occupations. Some of the other eleven ordinances created new classifications, such as retail merchants, wholesale merchants, manufacturers and food processors, and levied license fees upon such new classifications on the basis of a percentage of gross revenue of such businesses; and other new classifications were created upon which fixed license fees were placed. A detailed analysis and description of the individual ordinances is not deemed necessary for the purposes of this appeal.

On April 22, 1949, the day following the enactment of these twenty-two ordinances, the City Council enacted ordinance No. 89196, which sought to impose a general profits tax of one per cent on all businesses and a tax of one-half of one per cent on salaries, wages and commissions. This tax was in addition to those levied by the twenty-two ordinances. Immediately after its passage a referendum petition was filed against ordinance No. 89196. The City Council thereupon, and on May 5, 1949, enacted ordinance No. 89310, providing that the twenty-two ordinances would not become operative if, on or before July 1, 1949, ordinance No. 89196 'has become effective and operative.' Regardless of the last mentioned enactment, sufficient signatures were procured to the referendum petition against ordinance No. 89196 to effect its reference, thereby preventing it from becoming operative on or before July 1, 1949. Thereafter, and on July 20 and 23, 1949, ordinances Nos. 89620 and 89675 were enacted. These ordinances have reference to the manner in which the twenty-two ordinances shall be administered and interpreted. Their constitutionality is attacked in the complaint but is not questioned on this appeal.

The plaintiffs brought this suit in their capacity of residents, inhabitants, citizens, and taxpayers of the City of Portland. Plaintiff Garbade is a partner in and doing business as Garbade's Bakery, and is engaged in operating four places of business within the City of Portland, as a retail merchant, in the sale of bakery goods and merchandise; and plaintiff Boynton is engaged in the operation of a single place of business in the City of Portland as a retail merchant under the name of Frank Boynton Paint & Wallpaper Company, in the sale of paints, wallpaper and similar merchandise. Garbade is president and Boynton is a director of the Retail Trade Bureau of the City of Portland, a nonprofit association of approximately 400 individuals, firms and corporations 'engaged in the business of retail merchants in the City of Portland'. Plaintiffs allege that they bring this suit for themselves and on behalf of the members of said Retail Trade Bureau, 'and for and on behalf of all persons resident or doing business in the City of Portland comparably and similarly situated' to themselves 'and to avoid a multiplicity of similar suits.'

The cause was tried on the issues raised by the complaint and the answer. The only evidence introduced was an agreed statement of facts by the litigants and exhibits consisting principally of copies of official documents. The circuit court made certain conclusions of law and based thereon 'ordered, adjudged and decreed that that part of plaintiffs' complaint in which plaintiffs ask the court to find that the ordinances in question are null, void and invalid, and that part thereof which asks the court to perpetually enjoin the defendants from enforcing or attempting to enforce said ordinances be and the same is in all particulars denied'. From this judgment and decree the plaintiffs have appealed.

Plaintiffs present the question of the alleged unconstitutionality of the twenty-two ordinances under four assignments of error. The first assignment reads as follows: 'The Court erred in finding that the 22 ordinances here under attack are not unconstitutional, in violation of the city charter and void on the ground that they contain another subject different from and not germane to the subject of the original ordinance which they are stated by their titles to amend.'

The License and Business Code, ordinance No. 76398, was passed December 18, 1941. It was a reenactment of existing ordinances, with the exception of a few matters relating to its administration. Its title is: 'An ordinance to regulate and license private businesses and occupations in the City of Portland, and declaring an emergency.' As enacted it contained an emergency clause. It is argued by plaintiffs that this ordinance (No. 76398) was not and could not 'be a tax or revenue measure because (1) it makes no mention of being a revenue raising measure (as specifically do the 22 amendatory ordinances) and (2) its emergency clause above quoted recites that it is 'necessary for the immediate health, peace, and safety of the City of Portland.' Had it been and were it a revenue or tax measure, it could and would not have carried an emergency clause under the prohibition of Article IX, section 1a of the State Constitution above quoted.'

That part of article IX, § 1a of the state constitution, on which plaintiffs rely, provides: 'The legislative assembly shall not declare an emergency in any act regulating taxation or exemption.' This section refers only to the state legislative assembly and has no relevancy in respect to municipal legislative bodies. The authorities on which plaintiffs rely, to wit: Roy v. Beveridge, 125 Or. 92, 266 P. 230; Cameron v. Stevens, 121 Or. 538, 256 P. 395; Thielke v. Albee, 79 Or. 48, 153 P. 793; and Joplin v. Ten Brook, 124 Or. 36, 263 P. 893, do not support their contention that article IX, § 1a applies to municipalities. For instance, in Roy v. Beveridge it was held that § 28 of article IV of the constitution, providing when an act takes effect [125 Or. 92, 266 P. 231], 'has no relevancy in respect to the passage of a city ordinance.' In Cameron v. Stevens it was held that article IV, § 1a, which extends the initiative and referendum powers to the legal voters of every municipality [121 Or. 538, 256 P. 397], 'contains no prohibition upon the legislature of upon the law-making body of a city or town to declare an emergency when enacting laws which come within the purview of Section 1a, nor does any other provision of the Constitution.'

Section 2-129 of the Charter of the City of Portland provides that 'No ordinance, except one making an appropriation, shall contain more than one general subject; ordinances making appropriations shall be confined to the subject of appropriations.'

Article IV, § 20 of the Oregon Constitution likewise limits the contents of a statute. It provides: 'Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. * * *' We are not here concerned so much with the title of ordinance No. 76398, as originally enacted in 1941, as we are with the question whether that ordinance, as amended by the twenty-two ordinances, contains 'more that one general subject'.

In discussing the meaning of the word 'subject' as used in the above quoted constitutional provision, this court, in Lovejoy v. Portland, 95 Or. 459, 466, 188 P. 207, 210, observed '* * * The subject of the law is the matter to which the measure relates and with which it deals. 25 R.C.L. 842. The term 'subject' is to be given a broad and extensive meaning so as to allow the Legislature full scope to include in one act all matters having a logical or natural connection. The subject may be as comprehensive as the Legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several, for the Constitution does not contain any limitation on the...