Kellaher v. City of Portland

• Decision Date: 16 August 1910
• Parties: KELLAHER et al. v. CITY OF PORTLAND et al.
• Court: Oregon Supreme Court

110 P. 492

57 Or. 575

KELLAHER et al. v. CITY OF PORTLAND et al.

Supreme Court of Oregon

August 16, 1910

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

Action by Dan Kellaher and others against the City of Portland and others. Judgment for defendants, and plaintiffs appeal. On application by plaintiffs for an injunction pending the appeal. Application denied.

O'Day & Haddock, for appellants.

Frank S. Grant and J.P. Kavanaugh, for respondents.

EAKIN J.

This case is pending in this court on appeal. Plaintiffs, who are appellants, now ask for an injunction restraining the defendants pending the appeal from collecting certain license fees due under a city ordinance, the validity of which is the subject of the suit.

The ordinance (No. 20,474 of the city of Portland) provides for licensing certain vehicles, and imposes an annual license fee for each vehicle. The ordinance was passed and approved on December 19, 1909. Thereafter, on January 8, 1910, plaintiffs commenced this suit in the circuit court for Multnomah county to have the ordinance declared illegal and void, and asked for a temporary injunction restraining the defendants from enforcing it pending the suit. The temporary restraining order was granted, and thereafter a demurrer to the complaint was sustained, the restraining order dissolved, and the suit dismissed. The Constitution (article 7, § 6), provides that "the Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts." Its power to issue an injunction in a case pending before it is only incidental to its appellate jurisdiction to the extent necessary to maintain or exercise it.

This question was considered in Livesley v. Krebs Hop Co., 97 P. 718, in which it was held that this court has jurisdiction to issue the writ only in aid of or to protect its appellate jurisdiction. The power should by no means be exercised as a matter of course, but only upon the most imminent necessity. This court cannot by injunction protect property rights, or enjoin acts that might result in damage to a litigant. That is the province of the circuit court, and this court can only review its action on appeal. In Livesley v. Krebs Hop Co., supra, the amount of a judgment was about to be collected by execution, plaintiff contending that since the rendition of the judgment it had been equitably satisfied, that plaintiff should be relieved from...