dissenting.
I dissent from the result reached by the majority. The municipal ordinance and the state statute both describe prohibited conduct in substantially identical terms. The police officer has unfettered discretion in deciding whether to charge one with violating the ordinance or the statute. The decision of the police officer fixes the appellate rights of the person charged, and that decision may well adversely affect the ultimate rights of the person charged. To me this constitutes a violation of the defendants’ rights under both the Fourteenth Amendment (Equal Protection Clause) to the United States Constitution and Article I, section 20, of the Oregon Constitution. I would, therefore, reverse the convictions for violation of the ordinance.
Defendants have so contended, relying upon our decisions in State v. Pirkey, 203 Or 697, 281 P2d 698 (1955) and State v., Cory, 204 Or 235, 282 P2d 1054 (1955).
In Pirkey this court held a statute to violate both constitutional provisions because that statute granted to a grand jury or a magistrate the "unguided and untrammeled” discretion to decide whether to prosecute a defendant for a felony or a misdemeanor for given proscribed conduct. In Cory this court reviewed the constitutionality of a statute that granted to district attorneys, in cases involving non-violent crimes, "unbridled” discretion to file or not to file an information seeking a sentence under Oregon’s Habitual Criminal Act. This court held that both the state and federal constitutions’ equal protection provisions* 1 were violated by the statute and, therefore, *785struck down the statute. The basis of finding the statute to be unconstitutional was held to be the grant to the district attorney of the right to act according to his "whim and caprice.”
In the case at bar the same kind of "unguided,” "untrammeled” and "unbridled” discretion is granted to a police officer to decide the course of prosecution according to his "whim or caprice.” The majority rejects deciding this case under the rule of Pirkey and Cory, however, upon the ground that United States v. Batchelder, 442 US 114, 99 S Ct 2198, 60 L Ed2d 755 (1979) has overruled those cases. In that case the prosecutor had discretion as to which felony would be charged. One carried a possibly greater period of incarceration, and the other carried a possibly greater fine. The United States Supreme Court found no denial of constitutional right of the defendant was worked by allowing the prosecutor to choose under which section of the criminal law to proceed. One must wonder, of course, whether the result would be the same had the prosecutor been granted unlimited discretion whether to charge for a felony or a misdemeanor. That was the situation presented in Pirkey but not presented in Batchelder.
There is another distinction with respect to Batchelder. The court there said, "[A] decision to proceed under § 922(h) does not empower the Government to predetermine ultimate criminal sanctions.” 422 US 125. As the court noted, the sentence to be imposed was still preserved for the judge. In the case at bar, the charging police officer has the capacity to predetermine finally and completely defendants’ appeal rights.
If I assume, however, that as a matter of federal constitutional law the defendants here are not entitled to prevail, that does not answer the question *786of whether Article I, section 20, of the Oregon Constitution prevents their conviction. I do not perceive how a United States Supreme Court decision as to the effect of the federal constitution upon prosecutorial discretion with respect to federal statutes can overrule the decisions of this court as to the protection accorded by the Oregon Constitution. Especially I find that idea difficult to accept given the fact that Oregon has no constitutional provision using the term "equal protection.” Assuming, however, for the sake of argument, that the two constitutions mean exactly the same thing, I find nothing in the majority opinion that convinces me the reasoning of Pirkey and Cory is fallacious. I would interpret Or Const. Art I, § 20, as this court did in those cases and reverse the convictions.2
Oregon has no "equal protection” provision in so many words. Article I, section 20, of the Oregon Constitution provides:
"No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
That is the section to which reference is made by this court, however, when speaking of the state constitution’s guarantee of equal protection.
I shall not pursue in this opinion why I believe there are significant differences which flow from the differences in constitutional text. I would point out that an analysis based upon "classes” affected will not always apply when testing constitutionality under the state constitution because of the deliberate distinction made between any "citizen” and any "class of citizens.”