Terry v. City of Portland

Citation269 P.2d 544,204 Or. 478
PartiesTERRY v. CITY OF PORTLAND et al.
Decision Date14 April 1954
CourtSupreme Court of Oregon

David Fain, Portland, argued the cause for respondent. With him on the brief were George Black, Jr., Paul Gerhardt, and Black, Kendall & Fain, Portland.

Alexander G. Brown, City Atty., and Marian C. Rushing, Chief Deputy City Atty., Portland, argued the cause for appellants. With them on the brief was Helen F. Althaus, Deputy City Atty., Portland.

Before LATOURETTE, C. J., and ROSSMAN, LUSK, BRAND, TOOZE and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal from a declaratory judgment and decree of the Circuit Court for Multnomah County which ruled that Ordinance No. 94553 of the city of Portland is invalid, and which enjoined the officials of that city from enforcing the ordinance. Following is a copy of the latter:

'An Ordinance amending Article II of Ordinance No. 76339 (Police Code) by adding a new section so as to prohibit ownership, maintenance, use, play, etc., of any coin-in-the-slot device, excluding however music devices, certain types of vending machines and games or amusement devices other than pinball machines or digger or grabbing devices where no element of chance, bonus or prize is inherent in such game or device, and declaring an emergency.

'The City of Portland does ordain as follows:

'Section 1. The Council finds that coin-in-the-slot operated devices of various types present problems of law enforcement since such devices may be adapted or misused for the purpose of conducting lotteries or gambling; that the prohibition of play by minors of such devices presents difficult policing problems; that therefore all such devices with certain specific exceptions should be prohibited within the City regardless of any element of skill involved, and regardless of any intention to use such device for amusement only; now, therefore, Article II of Ordinance No. 76339 (Police Code), hereby is amended by adding thereto a new section to be entitled, numbered and to read as follows:

'Section 16-1129 Coin-in-the-Slot Devices

'It is hereby unlawful for any person to own, maintain, control, operate, use or play or permit to be owned, maintained, controlled, operated, used or played either as operator, user or player or as owner, proprietor, lessee, employe or agent, any coin-in-the-slot-operated mechanical game or device or other device of like character regardless of whether such game or device be operated or played for a profit or prize or for further operation or play, or for the display or exercise of skill or for amusement, and whether or not any element of skill is involved in any way in said operation, use or play. This section shall not be deemed to apply to music devices or vending machines where no element of chance, bonus or prize is involved in such vending, whether such vending machine vends merchandise, commodities or special services or privileges, nor to games or amusement devices other than pinball games or digger or grabbing devices, where no element of chance, bonus or price is inherent in such game or device.

'Section 2. Inasmuch as this ordinance is necessary for the immediate preservation of the public health, peace and safety of the City of Portland in this: That law enforcement should be aided and facilitated in accordance with the provisions hereof in order to alleviate policing problems; therefore an emergency hereby is declared to exist and this ordinance shall be in force and effect from and after its passage by the Council.'

Upon this appeal the plaintiff does not claim that the ordinance contravenes any principle of constitutional law, but argues that the ordinance conflicts with Oregon Laws 1943, ch. 220, as amended by Oregon Laws 1945, ch. 255, and Oregon Laws 1947, ch. 502. The statute in its amended form is §§ 320.010 through 320.990, O.R.S. Specifically, the plaintiff asserts that when the legislature adopted the measure it 'preempted the field of legislating on the lawfulness or unlawfulness of coin-in-the-slot-operated pinball and similar games and devices.'

Section 3 of the 1947 act follows:

'There hereby is imposed on every coin-in-the-slot-operated music and amusement device of every description or designation, a privilege tax. The amount of such tax shall be as follows:

'(a) On every coin-in-the-slot-operated mechanical game or device designed to be played for amusement, other than music only, an annual tax of fifty dollars ($50) for each coin-receiving slot.'

Section 2 of the 1943 act excepts vending machines and devices used by public utilities to collect fares and rates; § 3 specifies what constitutes the tax year; § 4 requires the owner of the machine to pay the tax and requires him to designate the premises where the machine will be displayed; § 5 provides for a receipt to be issued to the owner upon payment of the tax; § 6 renders the display of the machine unlawful, unless the receipt issued upon payment is affixed to the device or conspicuously posted nearby; §§ 7 and 8 were repealed in view of the holding in Fox v. Galloway, 174 Or. 339, 148 P.2d 922; § 9 directs that the funds yielded by the tax shall be apportioned 60 per cent to the state public assistance fund and 40 per cent to the counties; § 10 renders violation of the act a misdemeanor; § 11 provides that alteration of the receipt issued by the state is forgery and that justice and district courts shall have concurrent jurisdiction with the circuit courts to enforce the act; § 12 provides that an attempt to evade payment of the tax by affixing to the machine something resembling the state receipt is a crime; § 13 gives the Tax Commission power to make rules for the administration of the act and gives their agents power of police officers; § 14 requires all law enforcement officers to enforce the act; § 15 imposes the tax in addition to any other tax that may be exacted by any municipality or the United States; and § 16 provides that the act shall not be construed as legalizing machines in violation of any law of the state.

Stripped of averments immaterial to this appeal, the complaint alleged that the plaintiff, for more than fifteen years,

'has been engaged in the business of owning, selling, leasing and renting certain amusement devices within the City of Portland and State of Oregon, constructed and designed for manual operation by the player, following the insertion of a coin therein, as a game for the player's amusement and pleasure and which said devices pay no money, merchandise or article of value to the player as a prize, and which are within and subject to the provisions of Chapter 220, Oregon Laws for the year 1943, as amended by Oregon Laws for 1945, and 1947 * * *.'

According to the complaint, the plaintiff has paid to the state the license fees required of him by the statutes. The same pleading states that the value of the plaintiff's devices is $100,000 and that there were in Portland at the time the suit was filed 'in excess of 1,000 amusement devices licensed by the state statute.' The plaintiff avers that the city's officials contend that his devices 'are within and subject to the provisions of said City of Portland Ordinance No. 94553, and the ownership, maintenance, control, operation, use or play thereof is prohibited thereby and rendered unlawful.' The only claim that the ordinance is unlawful, which has been urged upon appeal, is expressed in the complaint in this language:

'That said Chapter 220 of the Oregon Laws of 1943, as amended, is a law of general application throughout the entire State of Oregon, and said City of Portland Ordinance No. 94553 is in conflict therewith; that said Ordinance purports to prohibit and render illegal that which is allowed, approved and licensed by the State of Oregon; * * * that said Ordinance is inconsistent with said state statute and is in contravention thereof; that the State of Oregon has preempted the field of law covered by said statute and the ordinance and the City of Portland has no power or authority to prohibit or ban what is privileged and permitted by said statute, * * *.'

Following the filing of the complaint, the defendants, who are the city and its officials, moved for the entry of a declaratory judgment in their favor. The motion was heard by a panel of three judges who, with one of their number [Honorable MacCormac Snow] dissenting, held that the ordinance was invalid on the ground that the 1943 act had preempted the regulation of devices of the kind which the plaintiff owned. The city appealed.

In this court, the city contends that the ordinance is a valid exercise of the police power, and that Oregon Laws 1943, ch. 220, does not preempt the regulation of machines of the kind which it describes.

It is plain that the ordinance is directed at machines, not only of a gambling or lottery nature, but also at machines that do not provide pay-off or free play. We assume, without so deciding, that the plaintiff's machines are of the latter kind.

Disregarding for the time the issue of preemption, we shall determine whether or not the ordinance is valid as an exercise of the police power.

Section 2-105(a) and subsections 1 and 2 of the Legislative Charter of the City of Portland (1942 compilation) provide:

'The Council has power and authority subject to the provisions, limitations and restriction in this charter contained:

'1. To exercise within the limits of the city of Portland all the powers commonly known as the police power to the same extent as the state of Oregon has or could exercise said power within said limits.

'2. To make and enforce within the limits of the city all necessary water, local, police and sanitary laws and regulations.'

Section 2-120 of the charter says:

'Enumeration of Powers Not a Limitation. The foregoing or other enumeration of particular powers granted to the council in this charter shall not be construed...

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