Lyons v. City of Portland

McBRIDE, C. J. It cannot be gainsaid that, where the state has assumed exclusive right to license a particular business, the power of a city to legislate on the same subject is taken away. But we think the weight of authority is in favor of the proposition that, where a city has been granted by general law or by legislative charter the authority to license a particular business, that authority is not taken away by the fact that the state has also seen fit to impose a license for carrying on the same business. And it seems to us that where there is no conflict between the provisions of the state law and city ordinances on the *536 same subject both may, even under the police power, legislate to such an extent as to create an offense ag'ainst the city in addition to the offense committed against the state. The position assumed by able counsel for respondent in his case is briefly summed up in the following .statement: “If a state in the exercise of its police power, licenses an occupation or profession, a municipality of such state cannot lawfully prohibit such licensee from engaging in such occupation or profession until he has also taken out a license from the municipality therefor.” While a. plausible and ingenious statement of the law, respondent bases the objection in this case upon a false premise, to wit: that the ordinance in question is purely an exercise of the police power. The whole ordinance is not before us, but it appears from the excerpt from it in appellant’s abstract that it probably covers a wide range of business activities in addition to the business of employment agents. City ordinances, unlike legislative acts, are not strictly confined to matters specified, in the title, and the title fiere is broad enough to include licenses for the purpose of revenue as well as licenses regulating the conduct of a business. It is on the regulation of private business, including licenses, that is, in substance, it is an ordinance, among other things, on licenses, and we think it was entirely competent, under this title, to require licenses on a business, in. the nature of an occupation tax or for revenue, as well as for the purpose of regulation. It is quite as definite in that regard as the title in the case of Abraham v. City of Roseburg, 55 Or. 359 (105 Pac. 401, Ann. Cas. 1912A, 597). In this connection see City of *537 Leavenworth v. Booth, 15 Kan. 627, a case precisely in point; also City of Fairfield v. Shallenberger, 135 Iowa, 615 (113 N. W. 459); Brazier v. Philadelphia, 215 Pa. St. 297 (64 Atl. 508, 7 Ann. Cas. 548); Justice v. City of Atlanta, 122 Ga. 152 (50 S. E. 61). That the legislature may by a general law take away from municipalities the power theretofore granted them to license a particular business is unquestionable. But in this as in other cases, repeals by implication are not favored, and no clear intent to repeal the power theretofore granted to the City of Portland is apparent. That the legislative construction of license and regulatory statutes has been in accordance with the view herein expressed is clearly shown by the provision of Section 3d, subdivision-6 of Chapter 203, General Laws of Oregon for 1917, relating to the licensing and regulating of insurance companies, which reads as follows; “The taxes, fees and charges, as herein and elsewhere provided for in the ‘Insurance Law’ shall be in lieu of all other taxes, licenses, fees and charges of every kind and character by the state or any city, town, county or other political subdivision thereof, except taxes on real and personal property located in this state, which may be required of companies or their agents for the privilege of transacting insurance business. ” Such legislative construction is also indicated in Section 3 of Chapter 10, Special Session Laws of Oregon for 1921, which contains the following language : “ * * The public service commission of Oregon, in the exercise of the jurisdiction conferred upon it by the Constitution and laws of this state, and by this act, shall have the power to make orders and prescribe rules and regulations affecting such transporta *538 tion companies, notwithstanding the provisions of any charter, ordinance or permit of any incorporated city or town or county, and in case of conflict between any such order, rule or regulation of any such charter provision, ordinance or permit, the order or regulation of the. public service commission of Oregon shall in each instance prevail, but cities and towns may enact and enforce reasonable regulatory ordinances including the imposing of regulatory licenses not destructive of the general purposes of this act.” And again, in Section 2, subdivision 25, and Section 26 of Chapter 371, General Laws of Oregon for 1921, we find this language: Sec. 2, subd. 25. “No city, town or other municipal or local authority within this state shall, * * pass, enforce or maintain any ordinance, rule or regulation, * * prohibiting or restricting in a- manner inconsistent with the provisions of this act, the use of the roads, streets or highways of this state or any part thereof; * * ” Sec. 26. “The registration and license fees imposed by this act upon motor vehicles, * * shall be in lieu of all other taxes and licenses, except municipal license fees under regulatory ordinances * * .” All of these imply a legislative. recognition of the power of municipalities to license and tax in the respective instances named, except in so far as that power was not expressly taken away by the legislature. A statute having a particular and local application is not repealed by implication unless the intent to do so is reasonably clear: State v. Sturgess, 9 Or. 537. The charter of Portland being in its nature special, and pertaining to a particular locality, is not repealed by a general statute indicating no intention to repeal the former enactment.' Both the statute and .the ordinance may stand without conflict. The state statute *539 does not in terms give an employment agent the right to carry on his business, but simply declares that before so doing he must obtain a state license or be fined for failure to do so. So far as the license is concerned, the act simply says to the agent, “If you pay for and obtain a state license the state is satisfied to let you go on with your business, if you comply with other regulations prescribed.” It goes no further and does not profess to do so. Examining this statute, in view of the restrictive clauses in the other statutes above quoted, it would appear that the legislature intended rather to avoid interference with the charter rights of the City of Portland than to destroy them. The contention of counsel for respondent that there is a distinction to be drawn between the concurrent right of a city to regulate acts which are malum in se or per se nuisances and those which attempt to regulate other classes of business is not accurate. The practice of medicine by an itinerant doctor (135 Iowa, supra), the carrying on of a life insurance business (15 Kan., supra), the driving of an automobile (215 Pa. St., supra), peddling (122 Ga., supra), are all lawful employments and, with a single exception, do not involve the use of the public streets. The methods not infrequently used by employment agents to deceive ignorant persons in search of employment and thereby induce them to pay money for employment that only existed in the imagination of the agent led to the enactment of the city ordinance as well as the state law. The length to which unscrupulous agents would go is portrayed graphically in State v. Germain, 54 Or. 395 (103 Pac. 521), and this was not an uncommon incident. Like pawnbroking, pool-hall keeping and other like technically *540 lawful occupations, it requires careful supervision and a tax upon it that will prevent worthless persons from engaging in it. By reason of the state law and the city ordinance in question it has now become respectable as well as technically lawful, and should be kept so. It must be confessed that the question is a close one and the decisions, and there are many, are contradictory. The Supreme Court of Georgia, in the case of- Justice v. City of Atlanta, supra, held that a state license to peddle in the State of Georgia did not exempt a peddler from the provisions of an ordinance requiring a license from the City of Atlanta, while in Mayor etc. v. Charlton, 36 Ga. 460, the same court held that a physician licensed by the state could not be compelled to take out a license to practice medicine in Savannah, as required by the ordinances of that city. In City of Fairfield v. Shallenberger, supra, the Supreme Court of Iowa held that an itinerant physician licensed to practice as such by the State of Iowa could be compelled to comply with the requirements of a city ordinance requiring him to take out an additional license to practice in the City of Pair-field. “Who shall decide when doctors disagree?” may well be paraphrased, “Who shall decide when eminent Supreme Courts disagree concerning doctors?” We hold the ordinance valid. And it would be so even if the regulatory features were eliminated, leaving only a provision requiring the agent to take out a license and punishing him for not doing so. The decree of the Circuit Court is reversed and the cause dismissed. Reversed and Cause Dismissed. Rehearing Denied. Petition to Recall Mandate Denied.