133 P. 632 | Or. | 1913
delivered the opinion of the court.
The ordinance upon which this suit is based is set out in full in the amended complaint, and is in the following words:
“Every person, firm, company, or corporation owning or conducting any cigar-store, soft-drink parlor,*444 billiard or pool parlor, restaurant or other like place of business in the city of Albany, selling or dealing in soft drinks or bottled goods, shall close or cause to be closed such place or places of business at the hour of 12 o’clock midnight, and keep the same so closed until the hour of five o’clock in the morning following: and any person, firm, company or corporation violating any of the provisions of this section shall upon conviction thereof before the city recorder be punished by a fine of not less than $5.00 nor more than $25.00.”
The appellant is engaged in the business of catering in the City of Albany, and has, at large expense, fitted up his place of business with the intention of providing the people of Albany and Linn County with a convenient and attractive place for the purpose of serving lunches, banquets and dinners, and has an attractive and convenient lunchroom and banquet hall as a part of his place of business, and he serves lunches and banquets for hire. The appellant has two rooms, one constituting the lunchroom and banquet hall, and the other is used as a store, where he keeps for sale and sells candies, ice cream, soda water, lemonade, and similar articles of merchandise. His two rooms are so situated that persons going to or from his lunchroom and banquet hall must go through his storeroom, but he alleges that he does not keep the storeroom open to make sales after midnight, and that it is kept open after midnight only for the purpose of enabling persons to pass to and from his lunchroom and banquet hall, which at times is kept open until after midnight.
The appellant alleges also that there are ten or more-persons, firms, and corporations in the City of Albany besides himself who prepare and serve lunches and banquets to the same class of lodges and people to whom the appellant caters, and that these persons, firms, and corporations have no place or room in connection with their place of business where soft drinks
2. This suit was brought to enjoin the enforcement of the said ordinance on the alleged grounds that the ordinance is void, and that its enforcement would greatly injure the appellant’s business described in the amended complaint. We have no doubt that courts of equity have jurisdiction to enjoin the threatened enforcement of a void ordinance when it is shown that its enforcement would result in irreparable injury to the plaintiff’s business or property: See Dillon, Munic. Corp. (5 ed.), § 582; Sandys v. Williams, 46 Or. 327 (80 Pac. 642); McQuillan, Munic. Corp., § 805.
It was the intention of the council to compel all such places to close at midnight. The council very likely believed that “soft drinks” and “bottled goods” were not as “soft” as the unsophisticated may believe them to be, and concluded that compelling dealers in such “goods” to close at midnight would be promotive of good government in the city. Under the grant of power in the charter to regulate business houses, the city had the power to close such places at midnight or earlier. Perhaps it was fitting that such places should close at “midnight,” as Shakespeare says:
“’Tis now the very witching time of night;
When graveyards yawn and hell itself breathes out
Contagion to this world.”
The ordinance is reasonable and valid, unless it is vitiated by Section 20 of Article I of the Constitution of the state, which 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.”
The City of Portland passed an ordinance providing that no person engaged in selling spirituous, vinous or malt liquors in any saloon, barroom or restaurant in the City of Portland should sell any liquor to be delivered or used in any side room, back room, upper room, or other apartments in the same or adjoining building, but this ordinance provided that nothing contained in it should prohibit the serving of such liquors in a hotel having a valid license to sell liquors.
The validity of this ordinance was challenged in this court in the case of Sandys v. Williams, 46 Or. 327 (80 Pac. 642), upon the grounds analogous to the points made in this case. The Portland ordinance expressly excepted from its prohibition hotels holding licenses to sell liquors. The appellant in that case contended that the ordinance was not uniform, and that it did not affect alike all persons under the same gen
Counsel for the appellant placed much stress on the case of State v. Wright, 53 Or. 344 (100 Pac. 296, 21 L. R. A. (N. S.) 349), and asserts that it passed on the identical question involved in this case, but the act under consideration in that case was passed by the legislature, and required persons peddling certain kinds of goods to obtain a license to do so. It was held by this court that the act under consideration in that case was void because it required a license to sell certain kinds of goods and permitted persons to sell all other kinds of goods without being required to obtain a license therefor. Mr. Justice Bean, delivering the opinion of the court in that case, says: “A statute, which directly or by implication grants special privileges, or imposes special burdens upon persons en
We have examined the authorities referred to in the briefs, but have found nothing that would justify us in holding the ordinance to be invalid. We deem it reasonable and general in its operations, and valid.
The decree of the court below is affirmed.
Affirmed.