Portland v. Parker

138 P. 852, 69 Or. 271, 1914 Ore. LEXIS 338

• Court: Oregon Supreme Court
• Decided: February 10, 1914
• Status: Published

Opinion

Opinion by

Mr. Chief Justice McBride.

1. We quote that portion of the Constitution, as amended in 1910, which it is contended is controlling on behalf of the defendant in the case at bar: “The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon.” Before this amendment was adopted, Portland, pursuant to its charter granted by the legislature, had in 1904 passed the ordinance under which defendant was convicted, and it has not amended or changed it since. It is therefore clear that the amendment to the-Constitution has not in itself repealed the charter or the ordinance; and, if it is not now in force, it is because the state statute of 1911 has repealed it.

2. Waiving the question of the right of the legislature to repeal a charter or ordinance of a city by a general law, we are satisfied that it has not attempted to do so in this instance. In the case of Warren v. Crosby, 24 Or. 558 (34 Pac. 661), Mr. Justice Lord uses the following language:

“In coming to the conclusion reached in this case, we have not overlooked the principle that a general law will not be considered as modifying or repealing a special or local law, except by express words or necessary implication. ‘Laws special and local in their application,’ says Allen, J., ‘are not deemed repealed by general legislation, except upon the clearest manifestation of the legislature to effect such repeal, and ordinarily an express repeal by some intelligible reference to the special act is necessary to accomplish that end’: People v. Quigg, 59 N. Y. 88. ‘But,’ as was said by Dixon, J., ‘there is no rule of law which prohibits the repeal of a special act by a general one; nor is there any principle forbidding such repeal without the use of express words declarative of the legislative intent to repeal the entire statute’: New Brunswick v. Williamson, 44 N. J. Law, 167. The question is one of intention, and the purpose of the general act to modify or repeal the special act must be clearly manifested — the conflict must be irreconcilable — in the absence of express words declarative of the legislative intent: Brown v. City of Lowell, 8 Met. [Mass.] 172; Brown v. County Commissioners, 21 Pa. 42; State v. Fitzporter, 17 Mo. App. 273; Fosdick v. Village of Perrysburg, 14 Ohio St. 485, 486; Sedgwick, Statutory Law, 123.”

The statute of 1911 makes any person guilty of violent, riotous or disorderly conduct, or of using abusive or obscene language in any public place, street or highway, whereby the peace and quiet of the neighborhood is disturbed, a vagrant, and, if the contention of the defendant is upheld, takes away from the city authorities the power to punish that class of offenses most frequently the subject of police supervision in the cities. There is nothing in the city ordinance that conflicts with the state law except that the punishment upon conviction in the municipal court may be somewhat lighter than upon conviction in the state court. But, from the very earliest judicial history of the state, the law has provided that persons convicted in justices ’ courts of assaults and other like offenses may be punished by a fine, or by a small fine and imprisonment, while, if convicted of a like affair in the Circuit Courts, the punishment is much greater: Section 1924, L. O. L. Repeals by implication are not favored, and we would not be justified in assuming that it was within the legislative intent to effect the repeal of any portion of the charter or ordinances of the City of Portland by the enactment of the act of 1911, above cited.

The judgment is affirmed. Affirmed.

Mr. Justice Moore, Mr. Justice Burnett and Mr. Justice Ramsey concur.