64 P. 867 | Or. | 1901
after stating the facts, delivered the opinion of the court.
This statement of the law is not impinged upon by the doctrine maintained in Pennsylvania R. Co. v. Mayor, etc. of Jersey City, 47 N. J. Law, 286; State v. Sheppard, 64 Minn. 287 (67 N. W. 62, 36 L. R. A. 305), and other cases cited by counsel. One of the primary essentials of a valid ordinance is that it must be general in its operation ; that is, it must affect all persons alike, under like circumstances and conditions: 1 Dillon, Mun. Corp. (4 ed.) § 322. It may, and often does, become a question whether certain persons or corporations, acting in peculiar capacities or special emergencies, come within the legitimate purview or spirit of the ordinance, and such was the question presented and determined by the above cases. The ordinance in each case was general in its scope, affecting all persons alike, but in the first the business of the rail.road concentered in a small compass, but had grown to such proportions that the ordinance became unreasonably embarrassing and burdensome, and it was held, therefore, that it should not be enforced against the company as to the particular locus in quo. So, in the latter case, the ordinance prohibited the driving of animals in the street at a rate of speed exceeding
Reliance is had upon the case of City of Portland v. Terwilliger, 16 Or. 465 (19 Pac. 90), as being an adjudication sustaining the power of the city to exclude burials from within the city limits. The court there had under consideration the effect of an ordinance prohibiting the burial of the dead within the city, and consequently upon an estate conceded, for the purpose of the case, to have been vested in the municipality upon a condition subsequent as to the continued use and occupation thereof by it for cemetery purposes. The power to adopt the ordinance in that case seems to have been taken for granted, or, at least, it was not a matter of controversy in the course of the. hearing. In announcing the opinion, Mr. Justice Strahan incidentally says: “That power was delegated by the state to the City of Portland under the general description of police power;” referring, we presume, to the power of prohibiting burials within the city limits. The learned justice then proceeded to an elaboration of the idea that every citizen holds his property subject to the proper exercise of the power, but the question whether the charter did or did not confer the power to adopt the ordinance was not mooted, so far as we are informed by the record, much less can it be said to have been decided. The idea of declaring the act of burial a nuisance, and the power commensurate to that particular purpose, does not seem to have been suggested at any time during the proceeding. The case is therefore not controlling as a precedent. If, however, it ever had any vitality in the direction claimed for it, it must
Affirmed .