Thielke v. Albee

• Decision Date: 28 December 1915
• Parties: THIELKE ET AL. v. ALBEE, MAYOR.
• Court: Oregon Supreme Court

153 P. 793

79 Or. 48

THIELKE ET AL. v. ALBEE, MAYOR.

Supreme Court of Oregon

December 28, 1915

In Banc.

Appeal from Circuit Court, Multnomah County; George R. Bagley Judge.

Suit by A. A. Thielke and others against H. R. Albee, Mayor of the City of Portland.

This is a suit to enjoin the enforcement of an ordinance of the city of Portland licensing and regulating the operation of jitney busses. A demurrer was interposed to the complaint, which was overruled by the trial court, and from a decree in favor of plaintiffs defendants appeal. Reversed and dismissed.

See also, 150 P. 854.

Burnett J., dissenting.

W. P. La Roche, City Atty., and H. M. Tomlinson, Deputy City Atty., both of Portland, for appellant. A. W. Lafferty of Portland (R. L. Merrick, of Portland, on the brief), for respondents.

BENSON J.

The question presented for our consideration is the sufficiency of the complaint, the substance of which is that on September 3, 1915, the city council of Portland passed an ordinance, entitled

"An ordinance licensing and regulating motor busses operated within the city of Portland and declaring an emergency."

The ordinance, a copy of which is attached to and made a part of the complaint, is alleged to be void for the following reasons: (1) That the city council violated the constitutional provision, reserving to the citizens of a municipality the power of the referendum, by declaring an emergency when, in fact, none existed; (2) that it is unconstitutional and void because it discriminates against jitney busses in several detailed requirements of regulation which are not exacted from the operators of street-cars, taxicabs, sight-seeing automobiles, and other motor or electric vehicles or cars for carrying passengers; (3) that it is void for the reason that it requires motor busses, when approaching intersecting streets, to stop at the near crossing thereof to take on or discharge passengers; (4) that it is void because it requires that the rates charged shall be plainly painted on the wind shield of the car, and prohibits the collection of a greater charge than five cents in the absence of such posted rates; and (5) that it is unconstitutional and void because it commits to the commissioner of the department of public utilities and to the city council the arbitrary power of issuing or refusing certain certificates, and makes the issuance of licenses to operate motor busses dependent upon the previous issuance of such certificates, thereby enabling such commissioner and the city council to arbitrarily prevent plaintiffs from securing a license.

The trial court decided that, under the provisions of the Constitution of the state of Oregon, a municipality has no power to enact an emergency ordinance, and also determined that the fifth contention, supra, was well founded. Taking these points in their order, we observe that section 1, art. 4, of our Constitution, so far as it pertains to the question before us, reads as follows:

"The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by the petition signed by five per cent. of the legal voters, or by the Legislative Assembly, as other bills are enacted."

This section, as it now reads, was adopted by the people in 1902. We next quote that portion of section 1a of article 4, which, so far as it is pertinent to this inquiry, reads thus:

"The initiative and referendum powers reserved to the people by this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts."

Respondent contends that this section specifically eliminates any power upon the part of a municipality to use the emergency clause in an ordinance. This section of the Constitution became effective in 1906. In 1907 the Legislature passed an act providing for carrying into effect the referendum powers reserved by the people in section 1 and section 1a of article 4 of the Constitution on general, local, special and municipal legislation. In section 11 of that act the following language appears:

"No city ordinance, resolution, or franchise shall take effect and become operative until thirty days after its passage by the council and approved by the mayor, unless the same shall be passed over his veto, and in that case it shall not take effect and become operative until thirty days after such final passage, except measures necessary for the immediate preservation of the peace, health or safety of the city; and no such emergency measure shall become immediately operative unless it shall state, in a separate section, the reasons why it is necessary that it should become immediately operative, and shall be approved by the affirmative vote of three-fourths of all the members elected to the city council, taken by ayes and noes, and also approved by the mayor." Section 3481, L. O. L.

In 1913 the people of the city of Portland enacted the charter under which the ordinance in question was adopted, and sections 47 and 48 thereof read as follows:

"Sec. 47. Every ordinance, other than emergency ordinances, shall have three public readings, not more than two of which shall be at the same regular legislative session. At least one week shall elapse between the introduction and final passage of any ordinance and no ordinance shall be amended within one week of its final passage, except in case of an emergency ordinance. An emergency ordinance may be enacted upon the day of its introduction, providing that it shall contain the statement that an emergency exists, and specify with distinctness the facts and reasons constituting such emergency. The unanimous vote of all members of the council present, and of not less than four (4) members shall be required to pass an emergency ordinance. "Sec. 48. Ordinances (a) making appropriations and the annual tax levy, (b) relative to local improvements and assessments therefor, and (c) emergency ordinances, shall take effect immediately upon their passage. All other ordinances enacted by the council shall take effect thirty days after their passage, unless a later date is fixed therein, in which event they shall take effect at such later date, subject to the referendum and subject to the provisions of Section 52 of this Charter."

A number of cities in Oregon are now operating under charters containing similar provisions. The inevitable conclusion from these facts is that for a period of more than 9 years the state Legislature, the people of the city of Portland, and those of many other municipalities have read section 1a of article 4 of the Constitution and have understood it to empower city councils to pass ordinances, with emergency clauses appended thereto, in like manner as is done by the state Legislature. The power has never before been questioned in this court, and in our opinion it requires a strained construction to justify any other interpretation. But if there were any doubt as to the true meaning of the constitutional provision it is a well-settled rule that contemporaneous construction of constitutional or legislative provisions and long acquiescence in a particular interpretation are very persuasive in leading the courts to adopt the same construction. In the case of Biggs v. McBride, 17 Or. 640, 21 P. 878, 5 L. R. A. 115, which involved the power of the Legislature to elect railroad commissioners, the court says:

"The power thus exercised has never been called in question, but has ever been acquiesced in by every department of the government, and is in itself a contemporaneous construction of the constitution, which, if the question were doubtful, might be sufficient to turn the scale in its favor. Under any view, such construction is entitled to great weight, and could not be lightly regarded."

This doctrine has been approved by this court in the following cases: Acme Dairy Co. v. Astoria, 49 Or. 520, 90 P. 153; Harris v. Burr, 32 Or. 348, 52 P. 17, 39 L. R. A. 768. However, we regard the principle as too well established to require citation of authorities. As to whether or not the city council has exercised this power wisely is a question which we are not at liberty to consider. Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222.

This brings us to a consideration of that part of the ordinance requiring the operator of the motor bus to secure a certificate from the commissioner of public utilities before applying for a license, and as to whether it renders the ordinance invalid as vesting the commissioner with unreasonable and arbitrary power. In support of this contention counsel for respondent has called our attention to but one citation of authority, the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, which we have examined with great care. This is a case growing out of the anti-Chinese crusade in San Francisco some 30 years ago. An ordinance had been passed by the city council requiring those who desired to engage in the laundry business to first obtain a permit from the board of supervisors of the city so to do. It was admitted that such permission had been refused to every Chinese applicant and granted to every white person seeking the same. Our view of this decision and its effect are so clearly expressed in the case of Ex parte Fiske, 72 Cal. 125, 13 P. 310, that we quote extensively therefrom as follows:

"It is true, that, at first glance, a somewhat different doctrine seems to have been stated in Yick Wo v Hopkins, 118 U.S. 356 [6 S.Ct. 1064, 30 L.Ed. 220]. A correct understanding, however, of the extent to which that case goes can be had only by

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