Kellaher v. City of Portland

Mr. Justice Eakin delivered the opinion of the court. 1. This case is pending in this court on appeal. Plaintiffs, who are appellants, now ask for an injunction restraining the defendants, pending the appeal, from collecting certain license fees due under a city ordinance, the validity of which is the subject of the suit. The ordinance (No. 20,474 of the city of Portland) provides for licensing certain vehicles, and imposes an annual license fee for each vehicle. The ordinance was passed and approved on December 19, 1909. Thereafter, on January 8, 1910, plaintiffs commenced this suit in the circuit court for Multnomah County to have the ordinance declared illegal and void, and asked for a temporary injunction restraining the defendants from enforcing it pending the suit. The temporary restraining order was granted, and thereafter a demurrer to the complaint was sustained, the restraining order dissolved, and the suit dismissed. The constitution, (Article VII, Section 6), provides that “the Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts.” Its power to issue an injunction in a case pending before it is only incidental to its appellate jurisdiction to the extent necessary to maintain or exercise it. This question was considered in Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718), in which it was held that this court has jurisdiction to issue the writ only in aid of or to protect its appellate jurisdiction. The power should by no means be exercised as a matter of course, but only upon the most imminent necessity. 2. This court cannot by injunction protect property rights, or enjoin acts that might result in damage to a liti — 578 — gant. That is the province of the circuit court, and this court can only review its action on appeal. Statement by Mr. Chief Justice Eakin. This is a suit by Dan Kellaher and 181 others to enjoin the city from enforcing an ordinance — No. 20,474 — taxing vehicles used upon the streets of the city. The ordinance provides that any person, firm, or corporation, being the owner or keeper within the city of “any stagecoach * * automobile or other vehicle, which shall be used for the conveyance” of persons, goods, or for any other business, shall pay for each such vehicle an annual license as follows, naming a list of vehicles drawn by two animals and those drawn by one animal, and includes every vehicle used for business purposes, drawn by horses, and “for each omnibus used in transporting passengers * * without hire, $2.50; for each such omnibus used * * for hire, $10; for each automobile used for hire, $10.00.” No license tax is fixed for any other automobiles than are included in the three items last mentioned. The ordinance expressly excepts from its operation vehicles used for pleasure only and those licensed under Ordinance No. 14,053. Section 5 of Ordinance No. 20,474 provides that any person who shall violate the provisions of this ordinance by neglecting to place license tags upon the vehicle, or who violates any of its provisions, shall, upon conviction thereof, be punished by fine or by imprisonment. Section 73 of the city charter of 1903 (Sp. Laws 1903, p. 27) provides that the council has power and authority, among other things (subsection 3), “to provide for the punishment of a violation of any ordinance of the city by fine or imprisonment, not exceeding $500 fine or six months’ imprisonment, or both, or by forfeiture as penalty.” And by subsection 21 “to grant licenses, with the object of raising revenue or of regulation, or both, for any and all lawful acts, things, or purposes, and to fix by ordinance, the amount to be paid therefor. * * All money received from licenses for vehicles of every description whether for pleasure or business, shall go to the credit of the street repair fund.” Section 114 provides: “The council has power and authority * * to assess, levy, and collect taxes upon all property * * not to exceed three-fourths of a mill, for the maintenance, preservation, and repair of the streets, to be known as the ‘Street Repair Fund.’ ” Plaintiffs allege that the ordinance is illegal and void for the reasons that it is discriminatory, in that within the city there are a large number of vehicles not for hire in constant use by the owners in their own business, propelled by their own power, and in competition with plaintiffs; that it exempts vehicles licensed under Ordinance No. 14,053; that it does not include out of town vehicles used on the streets; that it does not include vehicles used for pleasure; that it does not appropriate the tax to the “street repair fund”; and that it provides for a fine and imprisonment for failure to pay the tax. A demurrer to the complaint was sustained by the lower court and judgment rendered thereon adjudging the ordinance valid and dissolving the temporary injunction. Plaintiffs appeal. — 578 — 3. In the case of Livesley v. Krebs Hop Co., 57 Or. 352 (97 Pac. 718), the amount of a judgment was about to be collected by execution, plaintiff contending that since the rendition of the judgment it had been equitably satisfied, that plaintiff should be relieved from payment of it, and that the judgment creditor was insolvent, and, if the money be collected, it would be lost to plaintiff. The validity of the judgment was not questioned, and the restraining order was issued by this court to prevent the collection of the money. Otherwise the subject of litigation would have passed beyond the control of the court, and its decree, if in favor of the judgment debtor, would be rendered nugatory. The facts in the present case do not bring it within that principle. Counsel for plaintiffs urges only the hardship and delay that may result to them if the writ is not allowed in case the ordinance shall be held to be void. But these elements do not affect the exercise of the jurisdiction of this court over the subject of the litigation or remove it beyond its control. The application is denied. Injunction Denied.