Rosa v. City of Portland

• Decision Date: 27 November 1917
• Parties: ROSA ET AL. v. CITY OF PORTLAND ET AL.
• Court: Oregon Supreme Court

168 P. 936

86 Or. 438

ROSA ET AL. v. CITY OF PORTLAND ET AL.

Supreme Court of Oregon

November 27, 1917

Appeal from Circuit Court, Multnomah County; George N. Davis, Judge.

Suit by Charles Rosa and others against the City of Portland and H R. Albee, as Mayor of the City of Portland. From a decree of dismissal, the plaintiffs appeal. Affirmed.

This is a suit to enjoin the enforcement of certain ordinances of the city of Portland. From the recitals in the complaint, it appears that plaintiffs are severally engaged in the business of purchasing and selling popcorn, fruits, and other commodities in and upon the streets of Portland; that the city authorities are seeking to enforce against their business certain ordinances which are pleaded, the important features of which are that they establish a restricted district wherein peddlers and hawkers upon the streets are required to pay a quarterly license fee of $150, and for doing business outside of the restricted district they are required to pay a quarterly license fee of $50. It is also provided that between certain hours of the day all such business is prohibited in the restricted district. The ordinances further provide that certain classes, including distributors of newspapers, bibles, political literature etc., and producers of farm products, are exempt from the payment of such fees. It is then alleged that the license charge is so great as to render their business unprofitable that the exemptions tend to create a monopoly in favored classes; that it constitutes a tax that is not uniform; that the ordinances are in contravention of section 20, art. 1, of the state Constitution and of the Fourteenth Amendment to the federal Constitution; that the license fee is prohibitory and confiscatory, and that such fee constitutes double taxation. The defendants demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of suit. The demurrer was sustained and, the plaintiffs having declined to plead over, a decree was entered dismissing the suit, and plaintiff's appeal.

Thomas A. Hayes, of Portland (John A. Jeffrey, of Portland, on the brief), for appellants. Stanley Myers, of Portland (W. P. La Roche and Henry A. Davie, both of Portland, on the brief), for respondents.

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

The theory upon which plaintiffs base their complaint is that the ordinances, the validity of which is challenged, are in conflict with the provision in the Fourteenth Amendment to the federal Constitution, which provides that "no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States;" and also section 20, art. 1, of the Constitution of Oregon, which provides that "no law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens." These guaranties have been uniformly held to be a protection simply to those fundamental or inherent rights which are common to all citizens. State v. Thompson, 47 Or. 492, 84 P. 476 4 L. R. A. (N. S.) 480, 8 Ann. Cas. 646; Sandys v Williams, 46 Or. 327, 80 P. 642; White v. Holman, 44 Or. 180, 74...