Daniels v. City of Portland , 124 Or. 677 ( 1928 )

The plaintiff contends that that part of the ordinance known as the Housing Code of the City of Portland set out in our statement is unconstitutional, in that it is a violation of the Fourteenth Amendment of the Constitution of the United States, and of Sections 1, 18 and 21, Article I, of the Oregon Constitution, and that the ordinance is arbitrary and not a proper exercise of the police power vested in the City of Portland.

If the ordinance is within the lawful exercise of the police power of the defendant municipality, it is not contrary to either the state or the federal Constitution. This is so because the legitimate scope of the police power ends where constitutional inhibitions begin: Rehmann v. City of Des Moines,200 Iowa, 286 (204 N.W. 267, 40 A.L.R. 922).

The police power is impossible of exact definition. In the case of Tanner v. Little, 240 U.S. 369 (60 L. Ed. 691, 36 Sup. Ct. Rep. 379, see, also, Rose's U.S. Notes), Mr. Justice McKENNA, referring to that power, says:

"We will not here define it or its limitations. As was said by Mr. Justice BROWN in Camfield v. United States, 167 U.S. 518,524 (42 L. Ed. 260, 17 Sup. Ct. Rep. 864, see, also, Rose's U.S. Notes), citing Rideout v. Knox, 148 Mass. 368 (19 N.E. 390, 12 Am. St. Rep. 560, 2 L.R.A. 81): ``The police power is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguarding of the public interests.'"

In the case of Noble State Bank v. Haskell, 219 U.S. 104 (55 L. Ed. 112, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487, 32 L.R.A. (N.S.) 1062), Mr. Justice HOLMES, in rendering the opinion of the court, speaks of the police power in the following language:

"It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States,167 U.S. 518 (42 L. Ed. 260, 17 Sup. Ct. Rep. 864). It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

In Commonwealth v. Alger (1851), 7 Cush. (Mass.) 53, Mr. Chief Justice SHAW of the Massachusetts court gave a definition of the term "police power" that is frequently cited and quoted with approval by the courts. Among other things, the justice wrote:

"All property in this commonwealth is * * held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and such reasonable restraints, and regulations established by law as the legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain — the right of a government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and the sources of this power than to mark its boundaries or prescribe the limits to its exercise."

In Public Health Law, Tobey, at page 223, appears the following interesting and concise statement concerning the fundamental legal principles applicable to public health procedure, and its relation to the police power of the municipality:

"The administration of public health activities in the United States is primarily vested in the individual states. This is so because the protection of health is a part of the police power, that inherent power of a government to enact laws, within constitutional limitations, to promote the health, safety, morals, order, comfort, and general welfare of the people. The police power may be employed for the benefit of the people as a whole, to restrain the use of the liberty and the property of individuals, for it is founded on the maxim, ``the greatest good to the greatest number.' The states possessed this police power before the federal Constitution was established in 1789, and they did not relinquish the right at that time, nor have they done so since. They cannot, in fact, divest themselves of the police power."

The police power is a law of necessity, and its extent "must from time to time conform to the growth of our social, industrial and commercial life. You cannot put a strait-jacket on justice any more than you can put a strait-jacket on business." 2 Cooley's Constitutional Limitations (8 ed.), p. 1227. For further discussion on this subject, see Chapter 16 of this work.

Plaintiff asserts, in effect, that the value of his investment will be lessened if he is required to make the improvements necessary to conform to the ordinance in question. In the light of modern legislation, the right of law-making bodies, in the exercise of the police power, to regulate, or, in proper cases, to prohibit, the conduct or carrying on of a given business, is not limited by the fact that the value of the investment in the business prior to the legislation outlawing such business will be greatly diminished. See Mugler v. Kansas, 123 U.S. 623 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273). The regulation of hotels, tenements and lodging-houses under the police power vested in a municipality is a proper subject for legislative action; but the degree of regulation should be reasonable, and not arbitrary. The reasonableness of a given ordinance is pre-eminently and primarily a question for legislative judgment; and, in a doubtful case, the judicial authority must defer to the legislative wisdom. But, when the legislative enactment is manifestly unreasonable and arbitrary, and offends against the prohibitions within the federal or state Constitution, it becomes the duty of the judiciary to declare such act invalid. However, in a case of this character, the law places upon the plaintiff the burden of showing the invalidity of the ordinance assailed.

The record herein tends to show an unhealthful condition in the matter of ventilation of the hotel maintained by plaintiff. This being true, upon complaint to the proper authorities it became the plaintiff's duty under the law to abate that condition in some feasible and efficient manner. This he refused to do, and, instead, attacked the ordinance as unconstitutional.

Plaintiff's counsel asserts that the ordinance in question is retrospective. We cannot follow the plaintiff. The act in question cannot be properly classed as retrospective. It affects no act or fact or right accruing before its enactment. It neither destroys nor impairs any vested right acquired under existing law. A careful reading of the ordinance discloses that it is solely prospective. The building permit granted by the City of Portland for the construction of the Harrison Hotel does not affect the right of the police power of the City of Portland to adopt and apply to it regulative measures looking to the public health:State v. Bunting, 71 Or. 259 (139 P. 731, Ann. Cas. 1916C, 1003, L.R.A. 1917C, 1162); Portland v. Public Service Com.,89 Or. 325 (173 P. 1178); Slovanian L. S. Assn. v. City ofPortland, 111 Or. 335 (224 P. 1098). For cases from other jurisdictions that are much in point, see Seattle v.Hinckley, 40 Wash. 468 (82 P. 747, 2 L.R.A. (N.S.) 398);Commonwealth v. Roberts, 155 Mass. 281 (29 N.E. 522, 16 L.R.A. (N.S.) 400); Tenement House Dept. v. Moeschen,179 N.Y. 325 (72 N.E. 231, 103 Am. St. Rep. 910, 1 Ann. Cas. 439, 70 L.R.A. 704).

Our attention has been called to the fact that W.A. EKWALL, Judge of the Municipal Court of the City of Portland, has been made a party defendant hereto. That a court of equity has not power to enjoin the judge of another court, see High on Injunctions (4 ed.), § 46.

Notwithstanding the issues involved herein have been vigorously and ably pressed upon our attention, we are compelled, by virtue of law, to affirm this cause. AFFIRMED.

RAND, C.J., and BEAN and BELT, JJ., concur.