183 P. 933 | Or. | 1919
We have carefully read the record and there is no proof of any discrimination by the inspector, or public health officials, of the City of Portland. Indeed, it appears, as a result of inspections, that about 2,500 .individuals coming under the provisions of the ordinance have complied with its terms and paid their licenses and that the defendant is the only one who has not. It appears from his own testimony that his chief objection to paying it lies in the fact that he was required to go to the city hall for examination and that he did not
In construing those ordinances that court says:
“They seem intended to confer, and actually do confer, not a discretion to be exercised upon a consideration of the circumstances of each case, but a naked and arbitrary power to give or withhold consent, not only as to places, but as to persons. So that, if an applicant for such consent, being in every way a competent and qualified person, and having complied with every reasonable condition demanded by any public interest, should, failing to obtain the requisite consent of the supervisors to the prosecution of his business, apply for redress by the judicial process of mandamus, to require the supervisors to consider and act upon his case, it would be a sufficient answer for them to say that the law had conferred upon them authority to withhold their assent, without reason and without responsibility."
“Class legislation, discriminating against some and favoring’ others, is prohibited, but legislation which, in carrying ont a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment. ’ ’ And that ‘ ‘ though the law itself be 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. ’ ’
That is good law, but there are no such facts in this record.
In the Tick Wo case the petitioner complied with the ordinance and with 200 others was arbitrarily refused a license by the supervisor. In the instant case 2,500 other business men have complied with the ordinance, paid the fee and obtained their license, and the inspectors have examined defendant’s premises and the board of health is ready and willing to grant him a license upon payment of the required fee, which the defendant refuses to pay, but wants to do business without a license.
“Is found to be suitable for a food establishment and in proper sanitary condition according to the ordinances'of the City of Portland and the regulations of the United States with reference to plumbing, water supply, ventilation and cleanliness, the bureau of health shall issue to such applicant a food establishment permit.”
If the premises comply with the ordinance of the city and the rules and regulations of the government with reference to plumbing, water supply, ventilation and cleanliness, the permit must be granted and the health officer has no right to refuse it. The ordinance of the City of Portland and the rules and regulations of the government in such matters are both definite and certain and the only question which the board of public health has any authority to consider is whether or not the premises or place of business come within such terms and provisions.
.The intent is to provide for an inspection of the premises before any business is done and if the inspector makes an unfavorable report the applicant may have the matter further investigated by the city health officer, and if that officer will not grant the permit he still has his remedy by direct appeal to the city commissioners.
“In determining whether the constitutional rights of a party have been affected by a state statute, the courts will presume, until the contrary is shown, that any administrative body to which power is delegated will act with reasonable regard to property rights.”
The purpose and intent of both the City of Portland and the government was to control and to prevent the spread of contagious and infectious disease.
“A state has the right, in the exercise of the police power, and with a view to protect the public health and welfare, to mak'e reasonable regulations in regard to such occupations as may, if unrestrained, become unsafe, or dangerous, and the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on such a trade or business is not violative of the Fourteenth Amendment. There is no presumption that a power granted to an administrative board will be arbitrarily or improperly exercised, and this court will not interfere with the exercise of such a power where the record does not disclose any ground on which the board acted.”
In State v. Briggs, 45 Or. 366 (77 Pac. 750, 78 Pac. 361, 2 Ann. Cas. 424), the rule is stated that in the regulation and licensing of trades, occupations, callings and professions “which affect the public welfare, the legislature must enact the law necessary to accomplish the object in view; but it may be carried into execution by some officer or board appointed for that purpose, and such officer or board may be authorized to prescribe the qualifications of those desiring to follow such callings or professions.” In White v. Holman, 44 Or. 180, 185 (74 Pac. 933, 1 Ann. Cas. 843), it is said:
*429 “Under a Constitution like ours, any lawful business, tbe management of which might be injurious to the public, may be regulated so as to limit the place or to prescribe the manner in which it shall be conducted, provided that in doing so no privileges or immunities are granted to any individual or class of persons that shall not equally belong to all citizens upon the same terms.”
In State v. Superior Court, 103 Wash. 409 (174 Pac. 973), it is held that:
“Laws and ordinances creating’ boards of health and granting wide powers for the effectual carrying out of legislative plan for protecting health must be liberally construed,” and “it is within power of legislature, in dealing with problems of public health, to make determination of fact by properly constituted health officer final and binding on public as well as upon courts. ’ ’
Under its charter the City of Portland had a legal right to adopt the ordinance here involved. It is not for this court to say whether or not the measure should have been enacted; that is a legislative and not a judicial question. The charter also makes it the duty of the bureau of health to enforce such an ordinance and vests it with power to make the necessary rules and regulations for its enforcement.
There is no evidence that the requirements of the bureau of health are arbitrary or unreasonable, or that there was any discrimination in their enforcement. The judgment in each case is affirmed.
Affirmed. Rehearing Denied.
Motion to Retax Costs.
(186 Pac. 54.)
Mr. Wilson T. Hume and Mr. J. Le Roy Smith, for the motion.
Mr. Walter P. La Roche, City Attorney, and Mr. Lyman E. Latour.ette, Deputy City Attorney, contra.
In Banc.
The defendants, upon appeal from the municipal court, were convicted in the Circuit Court of a violation of Ordinance No. 34,046 of the City of Portland, and upon appeal to this court the judgments were affirmed: Ante, p. 418 (183 Pac. 933). Thereupon the plaintiff filed its cost bills, consisting of the following items:
Kitchen Appeal. Traynor Appeal:
Clerk’s fee..........$10 Clerk’s fee..........$10
Attorney’s fee...... 15 Attorney’s fee...... 15
Brief .............. 27 Brief............. 56
Total............$52 Total............$81
The item of $10 clerk’s fee in both cost bills was disallowed by the clerk of this court, and the remaining items allowed, whereupon defendants appeal from the decision of the clerk, claiming that under the ordinance of the City of Portland no costs or disbursements are chargeable against any. party in a criminal proceeding. We are of the contrary opinion.
By Section 332 of the charter of the City of Portland, passed by the legislature in ‘1903, and retained in the charter of 1913 as an ordinance, it is provided:
*431 “All proceedings before the court or judge thereof, including all proceedings for the violation of any city ordinance, are governed and regulated by the general laws of the state applicable to the justice of the peace or justices’ courts in like or similar cases, except as in this charter otherwise provided. * * ”
Section 333 provides:
“All fines, costs, fees and expenses taxed against or received from any defendant in a criminal proceeding before the court or judge thereof, either for the violation of a city ordinance or law of the state, shall, when received or collected, be paid by said judge to the treasurer # * .”
Section 336 provides:
“Except as hereinafter stated, appeals may be taken and shall be allowed from final judgments rendered in the municipal court in all actions, both civil and criminal, under the same circumstances on the same conditions, in the same manner, and with like effect, that, under the laws existing at the time of the rendition of any such judgment, appeals may be taken and shall be allowed from final judgments rendered in similar actions in Justices’ Courts. Any defendant who is convicted of any crime defined or created by this charter, or of a violation of any ordinance, rule or regulation of the City of Portland, and is sentenced to any imprisonment or to pay a fine exceeding twenty dollars, may, within five days from the date of such conviction and judgment, appeal to the Circuit Court of Multnomah County, by giving to the city attorney a written notice of appeal and filing an undertaking on appeal, with one or more sureties to be approved by the municipal judge in said municipal court, which undertaking shall be to the effect that such defendant and appellant shall pay all costs awarded against him on the appeal and render himself in execution of any judgment rendered against him on the appeal; * * . ”
In Ex parte McGee, 33 Or. 165 (54 Pac. 1091), it was held in substance that the provision first above
We are of the opinion that by virtue of these provisions, as well as by the provisions of the ordinances above quoted, the material phrases of which we italicize, the respondent is entitled to recover the costs and disbursements taxed by the clerk and his ruling thereon is affirmed.
Motion to Retax Costs Deníed.