Thielke v. Albee

153 P. 793, 79 Or. 48, 1915 Ore. LEXIS 370

Opinions

Mr. Justice Benson

delivered the opinion of the court.

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 buses 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 dis criminates against jitney buses in several detailed requirements of regulation which are not exacted from the operators of street-ears, 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 buses, 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 buses dependent upon the previous issuance of such certificates, thereby, enabling such commissioner and the city council to arbitrarily prevent plaintiffs from securing a license.

1. 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 Article IV, Section 1, 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 5 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 Article TV, Section la, 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 Article IV, Section 1, and Section la 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 :

“See. 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.”

2. 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 Article IY, Section la, 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 opin ion 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 Pac. 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 Pac. 153); Harris v. Burr, 32 Or. 348 (52 Pac. 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 Pac. 710, 75 Pac. 222).

3. 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 author ity, the case of Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Rep. 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 Pac. 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 [30 L. Ed. 220, 6 Sup. Ct. Rep. 1064]. A correct understanding, however, of the extent to which that case goes can be had only by considering that the proof, which the court looked into, showed that the ordinance there under review was so administered as to exclude the subjects of the emperor of China, and none others, from the business of keeping a laundry. The court, after alluding to our treaty with China, says: ‘In the present case we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of as tried merely by the opportunities which their terms afford of unequal and unjust discrimination in their administration; for the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the state herself, with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amendment to the Constitution of the United States. Though the law itself he fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations ' between persons in similar circumstances material to their rights, the denial of equal justice is still within the prohibition of the Constitution.’ After alluding to the proof that the petitioners and 200 other Chinese were refused permission to carry on the business, while such permission was given to a large number of persons not Chinamen, the court says further: ‘The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot he resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which, in the eye of the law, is not justified. The discrimination is therefore illegal; and the public administration which enforces it is a denial of the equal protection of the laws, and a violation of the fourteenth amendment of the Constitution.’ It is evident from this language that the decision rested mainly upon the admitted discrimination against a class of persons in the public administration of the ordinance. Indeed, the admitted facts, which the court considered, showed that the intent of the ordinance was to exclude Chinamen from a business which should he open to all other persons, as clearly as if that intent had been boldly written on its face. The decision, therefore, as an authority, goes no further than to hold that, under a state of facts similar in character to the facts of that case, an ordinance similar in character to the one there passed upon would he invalid. But there are no such facts in the case at bar.”

In the opinion of the court in the case of Yick Wo v. Hopkins, 118 U. S. 356 (30 L. Ed. 220, 6 Sup. Ct. Rep. 1064), there is cited with approval the case of City of Baltimore v. Radecke, 49 Md. 217 (33 Am. Rep. 239), which, involved the power of the mayor and council to issue a permit, for the use of a steam engine in a box factory within the city limits, which contained a condition that the engine was “to be removed after six months’ notice to that effect from the mayor.” In both of these cases it will be observed that the occupation sought to be regulated was a lawful one, which was to be carried on upon private property, a thing which they possessed an absolute, constitutional right to do. The authorities uniformly disclose a marked distinction between such occupations and those similar to the one in controversy. As has been well said in the case of Ex parte Dickey (W. Va.), 85 S. E. 781:

“The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage-coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of the legislative power is that of regulation; but as to the latter, its power is broader. The right-may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities.”

The ordinance in question goes quite fully into the matters necessary to entitle an applicant to a license for the operation of a motor bus, and, among other things, requires the procuring of a certain certificate, prescribing what it shall contain. This part of the ordinance is to be read in connection with the other provisions of the act, and an appeal is provided against unjust action upon the part of the commissioner. We conclude, therefore, that the ordinance is not objectionable in this regard.

4. We come, then, to the contention that the ordinance is void because railroad cars, street-cars and automobiles used exclusively as sight-seeing cars, hotel buses and taxicabs are exempted from its operation. This question has been presented to the courts in several states, and in every case to which our attention has been called it has been held that the “jitney” bus represents a new class of common carriers, and the fact that a different kind of regulation is applied to it does not render such legislation unlawfully discriminatory or invalid.

In Ex parte Cardinal, 170 Cal. 519 (150 Pac. 349), the appellant was prosecuted for operating a jitney bus without giving a bond, as required by the ordinance, and he contended that the legislation was void by reason of unreasonable and discriminating provisions. In passing upon this question the court says:

“It is a matter of common knowledge on the part of those familiar with conditions in our large cities that the comparatively recent introduction of this class of vehicle, commonly known as the ‘jitney,’ for the carriage of passengers on the public streets, for a charge closely approximating that made on the streetcars, in view of the almost phenomenal growth of the institution, has made clearly apparent the necessity of some special regulations in order to reasonably provide for the comfort and safety of the public. It may well be that the board of supervisors concluded that, in view of the number of this class of public conveyances that were operated upon the public streets, especially upon the principal streets already occupied almost to overflowing during the hours of heaviest traffic by street-cars and other vehicles, as well as by pedestrians at street crossings, the speed at which they would naturally be operated in order to make them pay on such a low rate of fare, and the probable lack of substantial financial responsibility on the part of very many undertaking to operate such vehicles, special regulations as to condition of car, competency and fitness of operator, and the operation of the car, as well as security to protect against improper or negligent operation, were essential to the public safety. We certainly cannot say that the legislative body was not justified in so determining.”

In the case of Nolen v. Riechman (D. C.), 225 Fed. 818, 819, 820, the court says:

“As stated in the caption of the act, the purpose of the legislature was to define as common carriers within this state, persons, firms and corporations operating certain self-propelling public conveyances and affording means of street transportation similar to that ordinarily afforded by street railways, but not operated upon fixed tracks, to declare their business a privilege, to regulate the same, and to require such common carriers to give bond to indemnify against loss of life and damage to person and property. Here is a new class of common carriers, clearly pointed out and defined in the law, differing in material respects from other common carriers. For reasons no doubt sufficient in the minds of the lawmakers, this new class of common carriers is required to execute a bond to indemnify against loss those who might be damaged in person or property, through negligence.

“Confessedly steam and street railway companies and owners and operators of omnibuses are not required to give bond for protection to those negligently injured by them, such as is provided for in the act under consideration; but it is of common knowledge that statutory requirements, both federal and state, relating to and regulating common carriers, materially differ. While the services they all render are those of common carriers, yet the services are so different in detail that it would be wholly impracticable to write a statute applicable to them all, and serve, at the same time the convenience and safety of the public. * *

“It may well have been that the legislature had in mind, when it enacted the statute in question, that those engaging in the business which the act sought to regulate operated vehicles susceptible of becoming dangerous to the public by manner of their operation; that they had no fixed track upon which to run, and were at liberty to move over the entire surface of the street; that they had no schedule; that pedestrians had no way of knowing when and where to expect them; that they increased the danger to persons using the street, whether as pedestrians or while boarding or leaving street-cars or other vehicles; that they stopped at street crossings, or along the curb between street crossings, to receive and discharge passengers; that very often the driver owns the machine, or at least an equity in it; that many of them are financially irresponsible; that the patrons of such vehicles are composed of men women and children; that the vehicles, in the hands of careless drivers, might rush through crowded streets at a dangerous rate of speed, probably without any financial responsibility to their patrons or others upon whom damage might be inflicted by such machines, because of the negligence of the operators. * *

“There is another distinction that should be noted. It concerns the taxicab. While the ‘jitney’ and the taxicab are physically the same, yet the services they perform materially differ. The service of the one is designed to accommodate persons traveling along distinct routes, and at a rate of fare common to all; but the service of the other is intended for the accommodation of persons whose destinations involve varying distances and lines of travel, and presumably at varying prices. The two kinds of service would signify substantial difference in numbers of vehicles needed to meet the respective demands; and so the dangers attending the operation of the ‘jitney’ presumably would materially exceed those arising in the taxicab service. These considerations are independent of the question argued by counsel whether the taxicab is not embraced within the terms of the statute — a question we do not decide.”

Upon the same question there will he found an interesting discussion in the case of State v. Howell, 85 Wash. 294 (Ann. Cas. 1916A, 1231, 147 Pac. 1159). We think it is quite clear that motor buses, as defined in the ordinance, are in a class entirely distinct from those excepted, and that therefore the classification is not unreasonable. It follows that the demurrer should be sustained. An order will be entered here, sustaining it and dismissing the suit.

Reversed. Suit Dismissed.

Mr. Justice Eakin did not sit.