Rosa v. City of Portland

Me. Justice Benson

delivered the opinion of the court.

1. The theory upon which plaintiffs base their complaint is that the ordinances, the validity of which is challenged, are in conflict with the provision in the Fourteenth Amendment to the Federal Constitution, which provides that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States”; and also Article I, Section 20, of the Constitution of Oregon, which provides 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.” These guaranties have been uniformly held to be a protection simply to those fundamental or inherent rights which are common to all citizens: State v. Thompson, 47 Or. 492 ( 84 Pac. 476 , 8 Ann. Cas. 646, 4 L. R. A. (N. S.) 480); Sandys v. Williams, 46 Or. 327 ( 80 Pac. 642 ); White v. Holman, 44 Or. 180 ( 74 Pac. 933 , 11 Ann. Cas. 843). In the case last cited Mr. Chief Justice Moore very tersely expresses a doctrine which is abundantly supported by authority in these words:

“However partial it may seem, the state can create a monopoly of any business that may lawfully be prohibited by it on the grounds of public policy, without violating any constitutional inhibition, because no person possesses an inherent right to engage in any employment, the pursuit of which is necessarily detrimental to the public. ’ ’

*441 In the case before us the ordinances in question classify the business to be regulated as that of “selling any commodity or merchandise in the streets whether making outcry or not,” and plaintiffs allege that this definition is properly applied to the business carried on by them. It has also been held that no individual can have a property right in the use of a street for the purpose of his private business unless such right be acquired by a grant from the city and, in that event, he accepts the grant subject to all the conditions imposed, or he may reject it, in which case there is no grant and no right has been acquired. In Wade v. Nunnelly, 19 Tex. Civ. App. 256 ( 46 S. W. 668 ), this statement of the law is found:

“The ordinance in question does not undertake to prevent or interfere with the right of the appellees to purchase, sell, or otherwise deal in the products referred to upon their own premises; nor does it prohibit other persons from carrying such products and delivering them to appellees upon their premises. It may and doubtless will interfere with the privilege formerly enjoyed by the public at large of exhibiting such products upon the streets and in other public places within the territory referred to, and the convenience resulting therefrom to the appellees as‘dealers in such products. But appellees have no vested right to make marts of the streets, alleys, and other public places; and to deny them the privilege of so doing is not to destroy or deteriorate any of their property rights.”

In Greene v. City of Antonio (Tex. Civ. App.), 178 S. W. 6 , the court says:

“No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated, as the state or municipality may deem best for the public good.”

*442 This court has approved the doctrine in Cummins v. Jones, 79 Or. 276 ( 155 Pac. 171 ), and we might cite many more authorities to the same effect. Indeed, we have not found any cases to the contrary and counsel for plaintiffs has not called our attention to any instances which are in any way inconsistent therewith. We conclude that the demurrer was properly sustained. The decree is affirmed. Affirmed.

Mr. Chief Justice McBride, Mu. Justice Bean and Mu. Justice McCamant concur.