Chan Sing v. Astoria

Mr. Justice Burnett

delivered the opinion of the court.

1. A court of equity will sustain a suit to enjoin prosecutions under a void law: Spaulding v. McNary, 64 Or. 491 ( 130 Pac. 391, 1128 ).

2-4. It is stated in Section 90, L. O. L.:

“In pleading an ordinance or enactment of any incorporated city, town, or village, or a right derived therefrom, * * it shall be sufficient to refer to such ordinance or enactment by its title and the date of its approval, and the court shall thereupon take judicial notice thereof.”

This does not provide an exclusive rule of pleading, nor deprive the pleader of the right to state the provisions of either a? charter or an ordinance about which the question is raised. In Birnie v. La Grande, 78 Or. 531 ( 153 Pac. 415 ), we held that the court would not take judicial notice of initiative charters of cities and towns. Under Section 729, subdivision 3, L. O. L., the courts assume knowledge of “public and private official acts of the legislative, executive, and judicial departments of this state, and of the United States. ’ ’

*416 Such acts of cities and towns are not within that category, and must be pleaded in some form. Before the adoption of the initiative system in this state, the courts under the quoted clause of Section 729, L. O. L., took notice of. municipal charters because they were always enactments of the legislative assembly. Under the present régime, however, it would be impracticable, besides beyond the scope of the statute, for any court to take judicial notice of all the initiative measures adopted by every municipality from the metropolis to the smallest crossroads village in the state. The plaintiffs were well within the rule of pleading when they set out the two sections of the charter mentioned, and it was error to strike out that part of the original complaint.. It was also permissible for them to point out other occupations similar in some respects to their own, which would not be affected by the ordinance, all for the purpose of challenging the justice of the classification under which the city council seems to have proceeded. Section 39 of the charter provides a manner of carrying into effect the power conferred by the excerpt from the preceding section of that instrument. It is said that the council may pass any ordinance not repugnant to the laws of the United States or of this state necessary or convenient for carrying its prerogative into effect, ‘ ‘ and as may be necessary to secure the peace and good order of the city, and the health of its inhabitants.”

The legislation in question can be justified, if at all, only by virtue of the quantum of the police power confided to the city by the legislative department of the government or by the initiative of its own people. Its charter is the limit of a city’s prerogative, and its authority to pass an ordinance must be expressed or necessarily implied: Corvallis v. Carlile, 10 Or. 139 *417 ( 45 Am. Rep. 134 ); MacDonald v. Lane, 49 Or. 530 ( 90 Pac. 181 ); Jeffery v. Smith, 63 Or. 514 ( 128 Pac. 822 ); Rosa v. Bandon, 71 Or. 510 ( 142 Pac. 339 ). According to the Astoria charter under discussion, an indispensable ingredient of such a measure is its necessity to secure the peace and good order of the city and the health of its inhabitants. Unless this feature is subserved or the measure adopted bears some essential relation or furnishes some proper support to these objects of the police power, it is of no effect.

5. It is a rule well established in this state that the reasonableness of an ordinance on such subjects is for the court to determine: Ex parte Wygant, 39 Or. 429 ( 64 Pac. 867 , 87 Am. St. Rep. 673 , note, 54 L. R. A. 636). 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 substance 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.”

To the same effect is State v. Redmon, 134 Wis. 89 ( 114 N. W. 137 , 126 Am. St. Rep. 1003 , 15 Ann. Cas. 408, 19 L. R. A. (N. S.) 229); Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 560 ( 46 L. Ed. 679 , 22 Sup. Ct. Rep. 431); State v. Wright, 53 Or. 344 ( 100 Pac. 296 , 21 L. R. A. (N. S.) 349, note); State v. Miller, 54 Or. 381 ( 103 Pac. 519 ); Spaulding v. McNary, 64 Or. 491 ( 130 Pac. 391, 1128 ); Kellaher v. City of Portland, 57 Or. *418 575 ( 110 Pac. 492 , 112 Pac. 1076 ). In Grossman v. City of Oakland, 30 Or. 478 ( 41 Pac. 5 , 60 Am. St. Rep. 832 , 36 L. R. A. 593, note), the principle is laid down that a city cannot prohibit the free nse of property by the owner so long as snch use does not interfere with the rights of others. Speaking about the matter of classification under the police power in Ladd v. Holmes, 40 Or. 167, 173 ( 66 Pac. 714, 716 , 91 Am. St. Rep. 459 ), Mr. Justice Wolverton says:

“The greater difficulty centers about the classification. It may not be arbitrary, and requires something more than a mere designation by such characteristics as will serve to classify. The mark of distinction must be something of substance, some attendant or inherent peculiarity calling for legislation suggested by natural reason of different character to subserve the rightful demands of governmental needs. So that, when objects and places become the subject of legislative action, and it is sought to include some and exclude others, the inquiry should be whether the distinctive characteristics upon which it is proposed to found different treatment are such as in the nature of things will denote, in some reasonable' degree, a practical and real basis for discrimination.”

The principle is concisely stated by Mr. Chief Justice Corliss in Edmonds v. Herbrandson, 2 N. D. 270 ( 50 N. W. 970 , 14 L. R. A. 725):

“The classification must be natural, not artificial. It must stand upon some reason, having regard to the character of the legislation.”

Again, Mr. Justice Beasley, in State v. Hammer, 42 N. J. Law, 440, states the doctrine thus:

“But the true principle requires something more than a mere designation by such characteristics as will serve to classify, for the characteristics which thus serve as the basis of classification must be of such a nature as to mark the objects so designated as pecu *419 liarly requiring exclusive legislation. There must be substantial distinction, having a reference to the subject matter of the proposed legislation, between the objects or places embraced in such legislation and the objects or places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will, in some reasonable degree at least, account for or justify the restriction of the legislation.”

See, also, State ex rel. v. Swigert, 59 Or. 132 ( 116 Pac. 440 ); 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 ).

6. We remember that the ordinance was directed against those who operate or conduct a store, selling and dealing in general merchandise, groceries, clothing, boots and shoes, dry-goods, jewelry, meats and hardware. It omits all reference to other occupations, the regulation of which is authorized by the city charter, such as dealers in tinware, crockery, glassware, millinery, cigars and tobacco, fruit and confectionery, furniture stores, tailoring establishments, and book and stationery stores, as well as others not necessary to be mentioned. It is a constitutional right, common to all citizens, that:

“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”: Article I, Section 20, of the Oregon Constitution.

In our judgment the classification embraced in the ordinance is arbitrary and unfair, and no substantial distinction exists between those mentioned and those omitted, having in view the object to be attained by the charter, “to secure the peace and good order of the *420 city and the health of its inhabitants.” It is difficult to conceive that any odor of sanctity hovers about a furniture store or makes it so impeccable that it would be exempt from the police power of the city, while a hardware store should be subject to its scrutiny. The same may be said in respect to almost any comparison that might be made between the different occupations mentioned in the legislation in question and in the city charter. Practical justice demands that all who are in the same category should be treated alike in the exercise of authority for the good order of the community. It may be said that if we can compel stores, with but few exceptions, to close on Sunday, as declared in State v. Nicholls, 77 Or. 415 ( 151 Pac. 473 ), supporting the state legislation upon that subject, the City of Astoria could properly pass the ordinance in question. The answer to this is that such measures must be enforced against all alike which cannot be said of the ordinance in question. In other words, the grouping must include all who have substantially the same relation to the end to be attained, namely, “the peace and good order of the city and the health of its inhabitants.” For illustration, it will be conceded by all that a blacksmith-shop and a carpenter-shop bear substantially the same relation to the peace, health and good order of the community in which they are situated, and if any regulation of them is necessary to. affect the public welfare in general, both ought to be treated alike, because, for that purpose, there is no practical difference between them. On the other hand, if the police power is to be exerted to prevent cruelty to horses, it would be proper to include blacksmith-shops in the classification, because such animals are often shod there, and to exclude carpenter-shops for the reason that horses are not generally found or *421 handled in such places. Mere difference in name is not in every instance a distinguishing characteristic supporting the exercise of the police power against one and not against the other.

The ordinance is radically at fault in its classification, and for this reason, if for no other, the court was wrong in sustaining the demurrer to the complaint. It is not necessary to consider whether it would be a reasonable manifestation of the police power to enact such an ordinance and make it apply to all the trades omitted from the measure here involved.

The decree is reversed and one entered here according to the prayer of the complaint.

Reversed. Decree Rendered.