White v. Holman

• Citation: 44 Or. 180,74 P. 933
• Parties: WHITE et al. v. HOLMAN et al.
• Decision Date: 11 January 1904
• Court: Supreme Court of Oregon

74 P. 933

44 Or. 180

WHITE et al. v. HOLMAN et al.

Supreme Court of Oregon

January 11, 1904

Appeal from Circuit Court, Multnomah County; J.B. Cleland, Alfred F Sears, Jr., and M.C. George, Judges.

Application for mandamus by Harry White and another against Holman Mears, and Wright, constituting the board of commissioners for licensing sailors' boarding houses, to compel the granting of a license. From a decree granting the writ defendants appeal. Affirmed.

This is a special proceeding to compel the defendants, who constitute the board of commissioners for licensing sailors' boarding houses, to grant to the petitioners authority to keep such a house. The alternative writ of mandamus states that the petitioners, owning a house of this kind in Portland, Or., have applied to the defendants for a license to conduct the same, presenting the necessary evidence of their qualifications therefor, and of the suitableness of their house for the accommodation of sailors, and offering to comply with the provisions of the act creating such board but that their petition has been arbitrarily denied. The board was therein commanded to issue the license, upon the payment of the fee prescribed, and the execution of a sufficient bond, or to show at a stated time why they had not done so. For answer to the writ the defendants denied its material allegations, and averred that they had established a rule that whoever applied for a license should produce recommendations from a reasonable number of the firms interested in shipping at the port for which the permit was desired, showing that the applicant therefor was qualified and had a suitable house for the business; that when the petitioners made their application the board notified them of this rule, and was informed that they could not comply therewith, whereupon a license was refused them. For a further defense it is alleged that, in denying the application, the board determined that the petitioners were not proper persons to carry on such business. The reply put in issue the allegations of new matter in the answer, and averred that the chairman of the board notified the petitioners that any recommendation they could secure would be useless, because it had been determined to issue but one license at the port of Portland, and that such permit was to be given to other persons; the board desiring to create a monopoly of such business. A trial being had, the alternative writ was made peremptory, and from the judgment so rendered the defendants appeal.

Henry E. McGinn, for appellants.

MOORE C.J. (after stating the facts).

Though the refusal to issue the license to the petitioners is founded, in the answer, upon their alleged unworthiness and incompetency, such denial appears from the testimony to have been based upon the board's desire to limit the business to only one sailors' boarding house at Portland, the managers of which had received a license prior to the petitioners' application therefor; thereby attempting to create a monopoly in that vocation. The defendant Edward Wright, as a witness in his own behalf, testified as follows: "When the board was organized, we made a rule that we would issue licenses only to people who were satisfactory to the parties directly interested in the shipping business--shipowners, for whom the law was passed." In referring to what the witness said to one of the petitioners, he further testified that he informed him "that any time he could get a recommendation from the men representing the shipping community, or even a portion of them, we would issue him a license." On cross-examination, in referring to the petitioners, he was asked: "Didn't you tell those boys, White and Smith, that the reason you did not grant them a license was there was not money enough in the sailor boarding house business for two houses; there was only money enough for one house?" to which he replied: "Yes, sir." This witness, having testified that a license had been issued to another firm to keep a sailors' boarding house at Portland was also asked, in referring to several persons who were engaged in the shipping business at that port: "What did they advise you to do?" and answered: "They advised me to try and see if we could not get along with one sailor boarding house man here. Q. Who did they advise you to issue the license to? A. To Sullivan & Grant," the firm who secured the license prior to the petitioners' application therefor.

Section 3 of the statute creating the board of commissioners for licensing sailors' boarding houses, and prescribing their duties, and the mode of executing them, is as follows: "Such board shall organize for the transaction of business as soon as practicable after the passage of this act. They shall take the application of any person, firm, or corporation for a license to keep a sailors' boarding house or sailors' hotel in this state, and upon satisfactory evidence to them presented of the respectability and competency of such applicant, and of the suitableness of his or their accommodations, and of his or their compliance with all the provisions of this act, shall issue to said person, firm, or corporation a license, which shall be good for one year and for no longer or shorter period, unless sooner revoked by said board, to keep a sailors' boarding house, or sailors' hotel in this state, at a place specified in the application, and to invite and solicit boarders and lodgers for the same; said board of commissioners for licensing sailors' boarding houses shall have the right to reject any application for a license provided by this act as they may deem advisable. Said commissioners shall, from their number, select their president, who shall, on behalf of said board, sign all licenses issued under the provisions of this act." Laws Or. 1903, p. 238. The right of the board to reject applications for licenses to conduct sailors' boarding houses made by persons who are unworthy or incompetent, or do not possess suitable accommodations therefor, or will not comply with the provisions of the act in question, must be conceded; and the refusal to issue the license, when based upon either of these grounds, will not be disturbed.

It will be remembered that the answer bases the refusal to issue the license on one of these grounds, but an examination of the testimony tends to show that the denial of the application was founded upon the theory that the issuance of only one license at the port of Portland would advance the shipping interests, improve the condition of seamen, and promote the welfare of the public. The action appears to have been tried in the lower court upon such theory, and, this being so, the question will be re-examined here as if it were the sole issue. The defendants' counsel contend that the monopolizing of a business that can be conducted with safety to the public only when licensed is a legitimate exercise of the police power of the state, and, to support this legal principle, rely upon the Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394, and other decisions following the rule there announced. In the leading case, an act was passed by the Legislature of Louisiana locating stock landings and stockyards below the city of New Orleans; prohibiting the landing or slaughtering of animals whose flesh was intended for food, within certain limits, except by a corporation thereby created, which was invested with sole power to erect stock landings, stockyards and slaughterhouses, and compelled to permit any person to slaughter animals therein; prescribing the charges to be made for each animal so killed; providing for an inspection of all animals to be slaughtered; and closing at a given date all other stock landings and slaughterhouses within the inhibited district. The Live Stock Dealers & Butchers' Association of New Orleans and others, contending that the act created a monopoly that deprived them of their right to pursue a legitimate employment, instituted suits to test its constitutionality. The Supreme Court of that state having decided against the association and in favor of the corporation, the cause was taken by writ of error to the Supreme Court of the United States, where it was held by a majority that the grant of an exclusive privilege, guarded by proper limitation of the prices to be charged, and imposing on the corporation the duty of providing ample convenience, with permission to all owners of stock to land and to all butchers to slaughter at those places, was a police regulation for the health and comfort of the people, within the power of the state Legislature, unaffected by the Constitution of the United States, previous to the adoption of the thirteenth and fourteenth articles of amendment. The landing, inspecting, and slaughtering of animals without the limits of the city of New Orleans was certainly a legitimate exercise of the police power of the state,...