Kellaher v. City of Portland

• Decision Date: 31 January 1911
• Parties: KELLAHER et al. v. CITY OF PORTLAND et al. [d]
• Court: Oregon Supreme Court

112 P. 1076

57 Or. 575

KELLAHER et al. v. CITY OF PORTLAND et al. ^[d]

Supreme Court of Oregon

January 31, 1911

Appeal from Circuit Court, Multnomah County; R.G. Morrow, Judge.

Suit by Dan Kellaher and others for injunction against the City of Portland and others. From an order sustaining a demurrer to the complaint and dissolving a temporary injunction plaintiffs appeal. Reversed, and injunction sustained.

See also, 110 P. 492.

This is a suit by Kellaher and 181 others to enjoin the city from enforcing an ordinance--No. 20,474--taxing vehicles used upon the streets of the city. The ordinance provides that any person, firm, or corporation, being the owner or keeper within the city of "any stagecoach *** automobile or other vehicle, which shall be used for the conveyance" of persons, goods, or for any other business, shall pay for each such vehicle an annual license as follows, naming a list of vehicles drawn by two animals and those drawn by one animal, and includes every vehicle used for business purposes, drawn by horses, and "for each omnibus used in transporting passengers *** without hire, $2.50; for each such omnibus used *** for hire, $10; for each automobile used for hire, $10.00." No license tax is fixed for any other automobiles than are included in the three items last mentioned. The ordinance expressly excepts from its operation vehicles used for pleasure only and those licensed under Ordinance No. 14,053. Section 5 of Ordinance No. 20,474 provides that any person who shall violate the provisions of this ordinance by neglecting to place license tags upon the vehicle, or who violates any of its provisions, shall, upon conviction thereof, be punished by fine or by imprisonment. Section 73 of the city charter of 1903 (Sp.Laws 1903, p. 27) provides that the council has power and authority, among other things (subsection 3), "to provide for the punishment of a violation of any ordinance of the city by fine or imprisonment, not exceeding $500 fine or six months' imprisonment, or both, or by forfeiture as penalty." And by subsection 21 "to grant licenses with the object of raising revenue or of regulation, or both for any and all lawful acts, things, or purposes, and to fix by ordinance, the amount to be paid therefor. *** All money received from licenses for vehicles of every description whether for pleasure or business, shall go to the credit of the street repair fund." Section 114 provides: "The council has power and authority *** to assess, levy, and collect taxes upon all property *** not to exceed three-fourths of a mill, for the maintenance, preservation, and repair of the streets, to be known as the 'Street Repair Fund.' " Plaintiffs allege that the ordinance is illegal and void for the reasons that it is discriminatory, in that within the city there are a large number of vehicles not for hire in constant use by the owners in their own business, propelled by their own power, and in competition with plaintiffs; that it exempts vehicles licensed under Ordinance No. 14,053; that it does not include out of town vehicles used on the streets; that it does not include vehicles used for pleasure; that it does not appropriate the tax to the "street repair fund"; and that it provides for a fine and imprisonment for failure to pay the tax. A demurrer to the complaint was sustained by the lower court and judgment rendered thereon adjudging the ordinance valid and dissolving the temporary injunction. Plaintiffs appeal.

J.M. Haddock (O'Day & Haddock, on the brief), for appellants.

Frank S. Grant and Wm. C. Benbow, for respondents.

EAKIN C.J. (after stating the facts as above).

The evident scope of this ordinance is to levy a revenue tax upon all vehicles owned within the city and used in connection with business enterprises. It is first objected by defendant that equity has no jurisdiction of the case for the reason that plaintiffs have a complete remedy at law. The primary object of the suit is to have adjudicated the validity of the ordinance which involves private rights to prevent the collection of the tax which is alleged to be unauthorized and to prevent a multiplicity of suits, which constitutes a ground for equitable cognizance. A suit to enjoin the collection of a tax is recognized as a proper remedy when the tax is unauthorized. Welch v. Clatsop County, 24 Or. 452, 456, 33 P. 934; Taylor Sands Fishing Co. v. Benson, 108 P. 126; Chicago, etc., Ry. Co. v. Frary, 22 Ill. 34; Albany & Boston Min. Co. v. Auditor General, 37 Mich. 391.

It is urged by plaintiffs that the provision of the ordinance that "any person who shall violate the provisions of this Ordinance by neglecting or refusing to place license plates, or tags, upon each side of 'his said vehicle' *** or who violates any of the other provisions of this ordinance shall upon conviction thereof *** be punished by fine *** or by imprisonment," renders the ordinance void, as it makes the nonpayment of a revenue tax punishable by fine and imprisonment. But this contention is untenable. The right of the city to license vehicles is conceded, and the charter expressly authorizes the city to enact ordinances and to enforce them by fine and imprisonment and is within its legislative power. The violation of the terms of the ordinance is not thereby made a crime, but it is quasi criminal, and the penalty is in the nature of a forfeiture for the wrong done to the public where a penalty is given, whether recoverable by criminal or civil process. In the case of City of St. Louis v. Green, 7 Mo.App. 481, it was held that this general power in the charter was not sufficient to authorize such a penalty for nonpayment of a tax, but that case was reversed upon that point in City of St. Louis v. Green, 70 Mo. 562, and it was held that the municipality had the power to enforce an occupation tax by fine. To the same effect are City of St. Louis v. Sternberg, 69 Mo. 289; City of Cincinnati v. Buckingham, 10 Ohio, 257; Shelton v. Mayor of Mobile, 30 Ala. 540, 68 Am.Dec. 143; Henry Vandine, Petitioner, 6 Pick. 187, 17

Am.Dec. 351; Chilvers v. People, 11 Mich. 43.

Plaintiffs contend that the ordinance is void because it is not uniform in its application to all persons similarly situated as to these plaintiffs and is discriminatory in that it expressly exempts vehicles used for pleasure, out of town vehicles used in the city by their owners, and those taxed under Ordinance No. 14,053. It is not questioned that the council has power to license vehicles for revenue, as attempted to be done in this case, as well as for the purpose of regulation. The charter provision (section 73, subsec. 21) grants this power. Certain trades and callings may be taxed without including all businesses that may be legally taxed for revenue, but the classification must be on some reasonable basis, so that it will apply to all engaged in the same business occupation ( State v. Wright, 53 Or 344, 100 P. 296, 21 L.R.A. [N.S.] 349; State v. Conlon, 65 Conn. 478, 33 A. 519, 31 L.R.A. 55, 48 Am.St.Rep. 227; In re Yot Sang [D.C.] 75 F. 983). And the same principle is applicable to the power to tax vehicles for the privilege of using the streets of the city. It is not essential to the validity of a license ordinance that all vehicles which may be so taxed should be included therein, but it must include all that come within the class sought to be taxed. The classification is for the determination of the council provided it is made on some reasonable basis, and applicable to all similarly situated, without discrimination. Legislative provisions of this character are upheld taxing drays and trucks ( City of Burlington v....