Department
1.
Appeal
from Circuit Court, Multnomah County; Henry E. McGinn, Judge.
Action
by Peter Kalich against F. C. Knapp. From a judgment for
defendant, plaintiff appeals. Reversed.
McBride
C.J., dissenting.
Will R. King, of Washington, D. C. (King & Saxton, of
Portland, on the brief) for appellant. R. W. Wilbur, of
Portland (Wilbur, Spencer & Dibble, of Portland, on the
brief), for respondent.
McNARY
J.
As the
result of colliding with an automobile driven by defendant
plaintiff brings this action to recover $35,000 damages for a
personal injury. The accident occurred shortly after midnight
on November 19, 1911, at the intersection of Williams avenue
and Russell street, in Portland. During the trial of the
case, plaintiff offered in evidence certified copies of
certain ordinances purposed to regulate the speed of motor
vehicles within the limits of the municipality, but upon the
objection of counsel for defendant, the court refused to
allow the ordinances to be introduced into the case, upon the
ground that the ordinances had been superseded by an act of
the legislative assembly of the state of Oregon, known as the
"Oregon Motor Vehicle Law," General Laws of 1911
pages 265-278. The result of the trial was a verdict in favor
of defendant, whereupon plaintiff prosecutes this appeal.
The ordinances, being three in number, were adopted by
the city during the years 1904 and 1906, and, considered as
one specie of legislation, forbid any person to drive or
operate an automobile at any point on the streets of the city
at a greater speed than 15 miles per hour, or at a speed of
more than 10 miles per hour within the fire limits, or at a
speed greater than a walk upon any street where street cars
turn. This local municipal legislation was enacted agreeably
to the powers vested in the city by a charter granted by the
state Legislature in 1903. Laws 1903, pp. 3 to 172. The
portion of the charter appropriate to the subject under
consideration follows:
"Sec. 72. The council shall have and exercise
exclusively all legislative powers and authority of the city
of Portland, and no legislative powers or authority, either
expressed or implied, shall be exercised by any other person
or persons, board or boards, other than the council. The
council shall have full power and authority, except as herein
otherwise provided, to exercise all powers conferred upon the
city by this charter and the Constitution and laws of the
state of Oregon."
"Sec. 73. The council has power and authority, subject
to the provisions, limitations and restrictions in this
charter contained--
"(1) To exercise within the limits of the city of
Portland all the powers, commonly known as the police powers,
to the same extent as the state of Oregon has or could
exercise said power within said limits; * * *
"(60) Except as otherwise provided in this charter, or
in the Constitution or Laws of the state of Oregon, to
regulate and control, for any and every purpose, the use of
the streets, highways, alleys, sidewalks, public
thoroughfares, public places, and parks of the city; to
regulate the use of streets, roads, highways, and public
places for foot passengers, animals, bicycles, automobiles,
and vehicles of all descriptions; * * *
"(63) To control and limit traffic on the
streets, avenues, and elsewhere."
So far
as is necessary to an understanding of the matter here
involved, the Oregon Motor Vehicle Law, provides:
"An act providing for regulating the use, registration,
license, identification, conduct and operation of vehicles
operated upon the public roads, streets and highways of the
state of Oregon; to regulate and license the persons who
drive the same; to prescribe penalties for violations hereof
and to prohibit the unauthorized possession or use of a
vehicle and to provide penalty therefor; to license and
identify all motor vehicles; to limit the authority of cities
and towns on like subjects concerned with said vehicles, and
to repeal all acts and parts of acts either in conformity or
in conflict herewith.
Sec. 2, subdivision 17: "The rate of speed on all
streets, roads and highways of this state shall be a
reasonable speed, up to and not exceeding twenty-five miles
an hour, but any speed in excess of twenty-five miles an hour
upon any road or highway of this state shall be an
unreasonable speed and is prohibited by this act; provided,
however, that no motor vehicle shall be driven at a rate
faster than eight miles an hour upon the country roads or
highways of this state when within one hundred yards of any
vehicle drawn by horse or horses."
Sec. 25: "Local authorities shall have no power to pass,
enforce or maintain any ordinance,
rule or regulation (1) requiring of any owner or operator of
a vehicle any license fee or permit to use the public
highways, or excluding or prohibiting any vehicle whose owner
has complied with this act from the free use of streets,
roads or highways of this state, except such driveway,
speedway or road as has been or may be expressly set apart by
law for the exclusive use of horses and light carriages, or
except as herein provided; (2) affecting the registration or
numbering of vehicles or prescribing a slower
rate of speed than herein specified at which such vehicle may
be operated, or the use of the streets, roads and highways of
this state, contrary or inconsistent with the provisions of
this act; and all such ordinances, rules or regulations now
in force are hereby declared to be of no validity or effect;
provided, however, that the local authorities may limit by
ordinance, rule or regulation hereafter adopted, the speed of
vehicles on the streets within their respective corporate
limits, on condition that such ordinance, rule or regulation
shall also fix the same speed limitation for all vehicles,
not to be in any case less than one mile in six minutes and
on further condition that local authorities shall also have
placed conspicuously on each main street, road and highway of
this state where the boundary of such local authority crosses
the same and on every main street where the rate of speed
changes, signs of sufficient size to be easily readable by
persons using the same, bearing the words 'Slow down to
______ miles' (the rate being inserted) and with an arrow
pointing in the direction where the speed is to be reduced or
changed; and provided further, that said ordinance, rule or
regulation shall fix the penalties for violation thereof
similar to and no greater than those prescribed by this act
for violation of speed limitation by any vehicles; and
provided further, that nothing in this act contained shall be
construed as limiting the power of local authorities to make,
enforce and maintain further ordinances, rules or regulations
affecting vehicles which are used to carry the public for
hire."
Admitted
by all, is the proposition, that but a single problem is here
involved, namely, since the amendment of section 2 of article
11 of the state Constitution effective December 3, 1910, can
the Legislature enact a statute, general in its application,
calculated to repeal certain ordinances of the city of
Portland theretofore enacted pursuant to the powers granted
to the city in its charter? A consideration of this question
impels a brief review of the organic and
statutory laws applicable thereto. Section 2 of article 11 of
the Constitution reads:
"Corporations may be formed under general laws, but
shall not be created by the legislative assembly by special
laws. The legislative assembly shall not enact, amend, or
repeal any charter or act of incorporation for any
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