Thielke v. Albee

Mr. Justice Burnett

delivered the following dissenting opinion.

On September 3, 1913, the council of the City of Portland passed an ordinance licensing and regulating what it called “motor buses,” concluding with Section 26:

“An emergency is hereby declared to exist in this: The present laws regulating motor buses being inadequate, it is necessary in order to protect the healthy peace and safety of the people of the City of Portland,” that this ordinance be passed immediately; therefore this ordinance shall be in force and effect from and after its passage by the council.”

In a suit by the plaintiffs to enjoin the enforcement of this municipal enactment, the Circuit Court forbade all manner of execution of the same until October 4, 1915, assigning as a reason that the ordinance was not exempt from the referendum power reserved to the legal voters of municipalities. The decree restrained the operation of the measure after that date in part only. It is contended that the conclusion of the learned circuit judge was erroneous on the first point, and that city law-making bodies have as much right *61as the legislative assembly of the state to pass laws which they deem necessary for the immediate preservation of the public peace, health or safety, and at the same time take them out of the operation of the referendum power. As pertains to this case, this is a moot question, and ought not to be decided here at this time. The only effect it had upon the ordinance as a whole in the Circuit Court was to postpone its operation to a date now long past. The remainder of the decree of the Circuit Court enjoined permanently only part of the ordinance. We have often said that we will not decide academic questions: Moores v. Moores, 36 Or. 261 (59 Pac. 327); State ex rel. v. Grand Jury, 37 Or. 542 (62 Pac. 208); State ex rel. v. Fields, 53 Or. 453 (101 Pac. 218); State ex rel. v. Webster, 58 Or. 376 (114 Pac. 932); Portland v. Investment Co., 59 Or. 598 (117 Pac. 991); Dimick v. Latourette, 72 Or. 231 (143 Pac. 896). On this ground, as well as upon the merits, I am compelled to withhold my assent to the conclusion reached by Mr. Justice Benson on this point.

In Article IV, Section 1, of the state Constitution the people said:

“The legislative authority of the state shall be vested in a legislative assembly, consisting of a senate and house of representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution-and to enact or reject the same at the polls, independent of the legislative assembly, and also reserve power at their own option to approve or reject at the polls any act of the legislative assembly.”

The last clause defines a power which a subsequent part of the section names “referendum.” True enough, as pointed out further on in the section, it is said this power “may be ordered except as to laws *62necessary for the immediate preservation of the public peace and health or safety.”

This, however, does not constitute any part of the definition of the power itself. It amounts only to an exception of certain things in state legislation to which the reserved popular prerogative will not be applied. This section of the Constitution was adopted in 1902. Four years later Article IV, Section la, was added to the fundamental law. It declares that:

“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.”

The exception mentioned in the section adopted four years previously was not imported into the later amendment. On the contrary, it expressly says that the referendum shall apply to all municipal legislation of every character, plainly specifying that there shall be no exception to this power when exercised by the legal voters of a city. It is contended that an emergency might arise where it would be highly important to have immediate city legislation on some subject, but this is a legislative argument, and ought not to be considered in the construction of plain terms of the Constitution. The same reason for it does not exist in the case of a local municipality as in the state at large whose legislative assembly meets only biennially. The general design of Section la was to invest the people themselves in every locality with complete power over local legislation of every character; and we can safely trust to the patriotism and public spirit of the voters of any city not to interfere with legislation which is really needful. Besides this, it is *63said, in a later clause of the section under consideration:

“The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation.”

In view of this excerpt, cities may provide for the manner of exercising the referendum, but they cannot entirely exclude its operation as to any measure. The mention of the power specified debars all side pretenses of any city council to prevent the legal voters of the city from exercising the referendum. It is plain that a city council has no right to pass an emergency ordinance, and that the power to do so resides only in the legal voters of the municipality.

Defining the vehicle to be regulated, the ordinance contains this provision:

“The word ‘motor bus’ shall mean and include any motor vehicle engaged in the business of carrying passengers for hire which is held out or announced by sign, voice or other device or advertisement to operate or run, or which is operated or run over a particular route, or to a particular point, or between particular points; provided that railroad cars or street-cars and automobiles used exclusively as sight-seeing cars, hotel buses and taxicabs shall not be considered motor buses within the meaning hereof.”

Sections 13 and 14 read thus:

“The chassis, wheels and brakes of all motor buses operated in the City of Portland shall be kept in a safe condition. At least once every thirty days each motor bus operated in the City of Portland shall be inspected by some person authorized by the City of Portland to make such inspection for the purpose of ascertaining whether or not the steering gear, brakes and other safety appliances of such motor bus are in proper *64working condition. And it shall be unlawful for any person to accept for transportation or to transport any person in any motor bus in the City of Portland the steering gear; or brakes or other safety appliances of which, upon inspection, have been found to be in an unsafe condition. The left-hand rear door of all motor buses shall be kept permanently closed.”
“Between thirty (30) minutes after sunset and sunrise whenever the top of a motor bus is up such motor bus shall be well lighted on the inside thereof, and any driver or chauffeur failing to maintain such light shall be deemed guilty of a violation of this ordinance. ’ ’

The provisions relating to their operation are found in Sections 8 and 24:

“Between the hours of 6:00 o’clock a. m. and 8:00 o’clock a. m. all motor buses shall be operated to the outer terminus of their routes, but may turn back upon discharging the last inbound passenger, and between the hours of 4:30 o’clock p. m. and 7:00 o’clock p. m. all auto buses shall be operated to the inner terminus, but may turn back upon discharging the last outbound passenger. During all other hours of operation all motor buses shall complete the trip to the termini of their routes. Provided, such buses may divert from regular route to deliver passengers if consented to by other passengers.”
“Motor buses may divert from their route to deliver or call for passengers at ball games or other points of amusement."

It may be conceded that the propensity to investigate, agitate, legislate and regulate finds it proper object in any public service. It is indeed true that' the police power may be applied to the control of any private business occupying public streets for purposes of its own. The question here is not whether carriers of passengers by automobile are proper subjects for the application of the police power, for that is beyond dispute. The matter to be determined is whether the

*65classification prescribed by the ordinance is fair, reasonable, and not discriminatory between individuals and things actually in the same category. The attack made by plaintiffs upon the ordinance, for the reason that it differentiates street-cars and motor buses as therein defined, is not well grounded. The distinction between the street-car and the ordinary automobile is a legitimate classification, for the former runs by electricity furnished from a distant point and on a fixed track, while the latter is moved by a gasoline engine or storage batteries and goes anywhere on any street. The relation of the street-car to the public may be safely left to the terms of its franchise, while the regulation of the large number of individuals embraced in the class of automobile owners is properly referred to city legislation so far as a municipality has power to enact ordinances upon the subject.

It is said in State v. Redmon, 134 Wis. 89 (114 N. W. 137, 126 Am. St. Rep. 1003, 15 Ann. Cas. 408, 14 L. R. A. (N. S.) 229):

“It is a judicial function to determine the proper subjects for police regulations and a legislative function to determine, primarily, the expediency of regulation and the character thereof subject to judicial supervision to the extent of determining, in cases as they arise, whether the boundaries of reason have been so clearly exceeded as to violate some constitutional prohibition, express or implied; the judgment of the legislature being controlling unless it appears beyond reasonable controversy that the interference is unreasonable. ’ ’

It is said in Mugler v. Kansas, 123 U. S. 623, 661 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273, 297):

"The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the *66substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

Speaking of the subject of classification, in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 (46 L. Ed. 679, 22 Sup. Ct. Rep. 431) the Supreme Court of the United States said:

“The difficulty is not met by saying that, generally speaking, the state when enacting laws may, in its discretion, make a classification of persons, 'firms, corporations and associations, in order to subserve public objects. For this court has held that classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this. * * No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government. * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear, not only that a classification has been made, but also that it is one based upon some reasonable ground — some difference which bears a just and proper relation to the attempted classification — and is not a mere arbitrary selection.”

In State v. Wright, 53 Or. 344 (100 Pac. 296, 21 L. R. A. (N. S.) 349, note), speaking by Mr. Justice Robert S. Bean, this court said:

*67“That the state may, under its police powers, license and regulate the business of peddling by requiring those engaged therein to obtain a license is conceded. This, however, is because gross frauds and cheats are likely to, or may, attend the business, if carried on by irresponsible and dishonest persons, and not because of the articles sold. And while it is possible the state may divide peddlers into different classes, requiring a license from one and not from the other, such classification, if valid at all, must be based upon some reasonable ground of differences, and not be an arbitrary discrimination between persons engaged in the same class of business. * * A statute, which directly or by implication grants special privileges, or imposes special burdens upon persons engaged in substantially the same business, under the same conditions, cannot be sound, because it is class legislation, and an infringement of the equal rights guaranteed to all. * * It is true a state may impose a tax on, or require a license from, persons engaged in certain callings or trades, without being bound to include all persons or all property that may be legitimately taxed for governmental purposes. * * But the classification must be on some reasonable basis, and the law, when enacted, must apply alike to all engaged in the business or occupation."

This case was expressly approved in State v. Miller, 54 Or. 381 (103 Pac. 519). In Spaulding v. McNary, 64 Or. 491 (130 Pac. 391), Mr. Justice Moore, speaking of the police power, said:

"It must be conceded that the sale of some kinds of goods and the transaction of some classes of business are in themselves, regardless of the persons connected therewith, so inherently harmful as to violate every sense of propriety and modesty, and in such cases the state rightfully may and necessarily ought immediately to put a stop to the flagitious traffic. Within the category thus condemned the sale of carriages cannot be included, and though there may be found one or more agents soliciting sales of buggies whose lives and conduct are not governed by the strictest rules of *68probity, the business in which they are engaged is not essentially unlawful, and therefore not subject to an exercise of the police power.”

In this excerpt the court has gone so far along the path of judicial control of the police power as to say that some forms of business, not essentially harmful, are exempt from that form of governmental authority.

The precise point here involved was decided by this court in an opinion written by Mr. Chief Justice Eakin in Kellaher v. City of Portland, 57 Or. 575 (112 Pac. 1076). That was a suit by the plaintiff and 181 others to enjoin the city from enforcing an ordinance taxing vehicles used upon the streets of the city. The complaint was that the enactment unjustly discriminated between vehicles doing substantially the same kind of business. The opinion says in part:

“However, we are unable to uphold the classification which omits from its terms automobiles used in connection with the owner’s business, which we are justified in assuming as a matter of common knowledge includes a large number of automobiLes used by department stores, breweries, groceries, express companies, physicians and- others, not used for hire, * * and are in the same class as those taxed by the ordinance * * : ‘For each delivery wagon delivering goods, wares or merchandise within the city, without charge, drawn by two animals; for each delivery wagon drawn by one animal.’ * * It is an arbitrary classification to say that an automobile using the streets for the same purpose as those vehicles drawn by horses which are taxed shall pay no vehicle tax. Such classification is not made on a reasonable basis, and renders the ordinance void.”

In State ex rel. v. Swigert, 59 Or. 132 (116 Pac. 440), an analogous application of the principle was made. In that proceeding there was drawn in question the validity of the statute providing that ports containing *69a population of more than 100,000 should he governed by a board of seven commissioners, to be appointed by the Governor for a term of four years. Speaking on the subject involved, the opinion states:

“Furthermore, the classification must be upon some real and actual distinction as a justification for it. "We conceive that no distinction exists for a different rule in ports of 100,000 population than for those with a lesser population as to the limitation of the term of office or time or manner of election. No reason is named in the act, nor is any suggested by counsel. If none exists, then the classification is illusory, and without existence in fact, and the law is special. There must be a difference in the situation, circumstances and requirements of the ports as the ground for the classification, and not special legislation under that guise. * * And we conclude that the classification is an arbitrary one, and that the law in fact applies only to the Port of Portland, and exempts from its provisions all other ports. * * It is also objectionable because the attempted classification of ports affected by its provisions is arbitrary and illusory, and therefore the act is void.”

Other decisions appropriate are Palmberg v. Kinney, 65 Or. 220, 228 (132 Pac. 538); Lorntsen v. Union Fisherman’s Co., 71 Or. 540 (143 Pac. 621); Pacific Title & Trust Co. v. Sargent, 73 Or. 485 (144 Pac. 452). From these authorities the principle is deduced that any classification made by the legal authorities of a municipality is subject to review by the judiciary, and, further, that' the regulation attempted must have some substantial relation to the basis of the classification. Adverting to the terms of the ordinance, we remember that the ground of selection is running a motor vehicle over a particuler route or to a particular point or between particular points and that sightseeing cars, hotel buses and taxicabs are excluded *70from the definition of motor buses. Motor buses as defined in the ordinance and the sight-seeing car, hotel bus and taxicab are all self-propelled by gasoline or electric engines. All take every person offering himself as a passenger. They are all, therefore, common carriers. As between the motor bus and the hotel bus they both run to a particular point; the former to the terminus of its run, and the latter to the hotel to which it is attached, and to no other place. They are identical under the terms of the definition formulated by the ordinance. It cannot be said fairly or with any good reason that the machinery of ¿n automobile running only on a certain street is, for that reason, more liable to get out of order than like machinery of a like nature, controlling a like vehicle operating on all streets of the city indiscriminately. A motor car running on a single street is no more likely to injure pedestrians on that account than the same kind of carriage running where it listeth. It has been argued that it is conducive to good morals that the vehicles under consideration be lighted inside, as required under Section 14. Even so; but unseemly conduct is quite as likely to occur in a taxicab subject to private hire as in a jitney carrying all who apply for passage. Under all these circumstances, it is not equal protection of the law to require inspection or interior lighting of the jitney and not of like vehicles excepted from the operation of the ordinance.

Again, bearing in mind that the distinction upon which the classification is based is the operation on a prescribed route, yet for all practical purposes even this differential disappears in the exceptions allowing jitneys to turn back from their termini during certain hours, to deviate from their routes by consent of passengers, and to go anywhere at will to call for and *71deliver passengers at ball games and other points of amusement. In brief, the classification is not only unfair and unreasonable, hut in effect has also been obliterated by the exceptions, so that the only substantial characteristic distinguishing the automobile called “motor bus” and the automobiles excepted from the operation of the ordinance is the extra license fee required from the former.

.The decree of the Circuit Court should be affirmed.