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the Constitution and criminal laws of the state less this court shall materially modify its holdof Oregon." ing in Kalich v. Knapp."

That a port is a municipality is not questioned. To give the act of 1915 the force contended for by defendants would be to hold that the Legislative Assembly may enact, amend, or repeal the act of incorporation of the port of Astoria. That the Legislature is inhibited from changing the act of incorporation of a municipality known as a port is just as plain as that such lawmaking body is enjoined from enacting, amending, or repealing the charter of a city or town. Acme Dairy Co. v. Astoria, 49 Or. 520, 90 Pac. 153; Branch v. Albee, 71 Or. 188, 142 Pac. 598; City of Portland v. Nottingham, 58 Or. 1, 112 Pac. 28; Kalich v. Knapp, 73 Or. 558, 142 Pac. 594, 145 Pac. 22; McKeon v. City of Portland, 61 Or. 385, 122 Pac. 291; Pearce v. Roseburg, 150 Pac. 855; State v. City of Portland, 65 Or. 273, 133 Pac. 62. Further, as already stated, the legislative branch of the state government has not expressed a willingness to amend such an act. It has, in so far as it has the power, granted the privilege to the people of the different ports to change the law under which they exist. The port law is in the nature of an enabling act. It is analogous to our old local option liquor law, which was ineffective in any part of the state until voted upon and adopted. Section la of article 4 of the Constitution is as follows:

"The initiative and referendum powers reserved to the people of this Constitution are hereby further reserved to the legal voters of every municipality and district, as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation.

This, as stated, was adopted at the same time as the first revision of section 2 of article 11, and it is well settled that both should be read in pari materia. In Kalich v. Knapp, supra, Mr. Justice McNary declared the rule to be:

"The Constitution as it is now built withholds the Legislature from amending any municipal charter by legislation, be it direct or indirect, general or special, which is properly and purely the subject of municipal concern and regulation."

In Pearce v. Roseburg, 150 Pac. 855, at page 859, the amended charter of the city of Roseburg did not limit the amount of money to be raised by taxation for the purpose of providing a sinking fund for the payment of the bonds mentioned in the amendment to the charter. Mr. Justice McBride, speaking for the court, said:

In Robertson v. City of Portland, 149 Pac. 545, at page 547, Mr. Justice Harris, speaking for the court, announced the following:

"If the electors of a municipality choose to do all things that may lawfully be done, they must manifest that choice by their charter, and, if they are contented with the right to exercise less than the whole power, their decision is likewise written in the charter. When the Legislait was deemed to be a special grant of power, ture passed a special law amending a charter, and, if the voters of the entire state enact special legislation affecting a city charter, it would receive a like construction. The people of any tive Assembly can no longer do, but at one time municipality can now do that which the Legislacould do. * ** The charter of a city is to its citizens and officers the measure of their authority over persons and property."

Riggs v. Grants Pass, 66 Or. 266, 134 Pac. 776, is a case which, if followed, would be decisive of the one at hand. The city had by charter amendment authorized a bond issue of $200,000 for the purpose of building a railroad from the city to a point outside its limits. This amendment was adopted in 1912, at which time there was in existence no legislative authority from the state to exercise these extramunicipal rights. In 1913 the Legislature passed an act authorizing cities to own and operate railroads running to points outside their limits; the law. being general in its nature. One of the questions considered in the case was whether this act of the Legislature validated the charter amendment, or in itself operated as an amendment of the city charter. Mr. Justice Eakin, speaking for this court, stated:

"Defendants insist that the legislative act of February 27, 1913 (page 541 of the Laws of 1913), gives validity to the charter amendment of December 18, 1912; but it can have no retrospective effect. It does not operate as an amendment of city charters; but charters may be amended to take advantage of powers granted. charter was unauthorized when adopted, and the The attempted amendment to the legislative act could give it no vitality. Neither it nor the legislative act authorized a particular issue of bonds to build a particular railroad or purchase any particular real estate; but before the city can have the benefit of the statute it must act affirmatively by making its charter conform to it, and then proceeding in the manner provided in its charter and ordinances."

So in Churchill v. Grants Pass, 70 Or. 283, 141 Pac. 164, the right of the same city to own and operate a railroad to a point outside

its limits as mentioned in the last case was since the state had by general law given its involved. It was held, in substance, that consent to the exercise of this power, and the legal voters had determined in their charter to exercise the power, no objection could be found upon those grounds, clearly showing that two things are necessary in order to authorize a municipality to act in such matters, viz.: (1) The conferring of power; (2) the embracing of the authority within the charter or act of incorporation.

"The writer * * * considers it is settled in this state that as to matters purely municipal the state Legislature cannot intermeddle by either general or special legislation, although as to matters affecting the people generally the power of the Legislature is still unlimited, and The construction of the law contended for

Constitution quoted above. Farrell v. Port of Portland, 52 Or. 582, 98 Pac. 145; Kalich v. Knapp, supra. Overruling Farrell v. Port of Portland, supra, does not pave the way for upholding the decree of the lower court in accordance with the majority opinion. It is further necessary to eliminate from our organic law the injunction against the Legislative Assembly amending any "act of incorporation for any municipality." If the power to amend such a municipal document under a general law does not reside in the people of a port, then, such authority having been plainly withdrawn from the Legislative Assembly, resort must be had to the electorate of the whole state. This procedure does not seem to have been contemplated under the home rule scheme. Some of the difficulties encountered in the Port of Port

land Case have been obviated by the passage of the general port law. That case has been a guide for about eight years and cited with approval many times by this court. In the opinion of the writer, the majority opinion unsettles several other decisions in this state under which rights have been established, and suggests its own weakness in this: That after a few years its force, too, may perchance be annulled. As to this phase of the case we adopt as apropos the language of Mr. Justice Burnett in his dissenting opinion in Kalich v. Knapp, 73 Or. at page 587, 145 Pac. at page 27:

"Another doctrine equally well settled is that of stare decisis, to the effect that, when a decision has once been rendered, it amounts to an authoritative construction of the law, and should not be disregarded or overturned, except for very cogent reasons showing beyond question that on principle it was wrongly decided. The principle is that laws are largely conventional rules of action, and it is more important that the rule be settled as a guiding precept to the public than that by the action of the courts the law should be made to fluctuate like the tides. State v. Clark, 9 Or. 466; Multnomah County v. Sliker, 10 Or. 65; Despain v. Crow, 14 Or. 404, 12 Pac. 806; Corvallis v. Stock, 12 Or. 391, 7 Pac. 524; Sheridan v. Salem, 14 Or. 328, 12 Pac. 925; Paulson v. Portland, 16 Or. 450, 19 Pac. 450, 1 L. R. A. 673; Everding v. McGinn, 23 Or. 15, 35 Pac. 178."

Yet, in order to conform to the will of the commissioners of a port exercising their supposed functions without the sanction of the people, whom they were chosen to serve, we are asked to give a force to a statute which was never intended by the makers thereof. This would open the door for the enactment by the Legislature of laws governing ports, independent of the voters of the locality affected, and compel them to bear burdens of taxation which they never voluntarily assumed a step in return to the old system which the people of the state of Oregon have repudiated and laid aside.

For these reasons, I am compelled to withhold my assent to the classical opinion by Mr. Justice HARRIS.

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[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. 81.] 6. CONSTITUTIONAL LAW 81-CLASS LEGISLATION-VALIDITY.

A statute designed to prevent spread of contagious diseases, or to protect public health, which operates on all alike, is not invalid under the state or federal Constitution.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. § 148; Dec. Dig. 81.] 7. CONSTITUTIONAL LAW 47 - CONSTRUC

TION-VALIDITY.

The constitutionality of a statute or ordiizes and permits to be done. nance is usually to be tested by what it author

47.]

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 43-45; Dec. Dig. 8. CONSTITUTIONAL LAW 208-CLASS LEGISLATION-VALIDITY OF CLASSIFICATION.

To justify a classification in a statute or ordinance, there must be some difference between the classes which bears a just and proper relation to the purposes of the law.

[Ed. Note. For other cases, see Constitutional Law, Cent. Dig. 88 649-677; Dec. Dig. 208.]

9. CONSTITUTIONAL LAW

ISLATION-INVALIDITY.

208-CLASS LEG

An ordinance, providing for the inspection of meats and slaughterhouses located without the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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Action by the Sterrett & Oberle Packing Company and others against the City of Portland and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. Reversed.

On June 10, 1914, the city council of Portland passed Ordinance No. 29063, designed to regulate the slaughtering of animals and the sale of carcasses and parts thereof which are intended for consumption in the city, and providing a penalty for the violation thereof. It prescribes regulations for the sanitation and inspection of slaughterhouses located within one mile of the city and outside its limits. As regulations they are not binding, because the council has no power to legislate for territory beyond the city boundaries. The provisions respecting such slaughterhouses amount only to conditions imposed upon the right to sell in the city the meat of animals slaughtered within the one-mile zone. The sale of such meat in the city is prohibited unless those regulatory provisions are complied with. The plaintiffs are engaged in the business of selling meat in Portland. Some of them own and operate slaughterhouses which are located outside of and within one mile of the city, and their supply of meat originates from animals killed at such establishments by persons who slaughter more than five animals a week.

The plaintiffs instituted this suit for the purpose of enjoining the enforcement of the ordinance on the ground that it is void because it contravenes the Constitution of the United States and of the state of Oregon in the following particulars: (1) It abridges the privileges and immunities of citizens of the United States; (2) it grants to a class of citizens privileges and immunities which upon the same terms do not equally belong to

all citizens; and (3) it discriminates unlawfully against the class of meat sellers to which the plaintiffs belong, and no reasonable grounds exist for such classification and discrimination. The complaint alleges in substance as follows: That meat which originates from animals slaughtered at places more than one mile from Portland and which originates from animals slaughtered within a mile of the city, but slaughtered by persons who do not kill more than five animals a week, is sold as a regular business in the city of Portland. That only one concern in the state of Oregon has federal inspection of its meat and slaughterhouses

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Plaintiffs claim that the allegations of the complaint show that this ordinance operates to deprive them of their lawful privilege of selling meat in Portland on the same terms that are accorded to their competitors, consisting of two other classes of meat sellers created by the ordinance. It also appears from the complaint: That by the ordinance all persons who have slaughterhouses within a mile of the city, except those who do not kill more than five animals a week, must comply with the many expensive regulations set out in the ordinance as to sanitation, construction, and maintenance of their slaughterhouses, and as to the ante mortem and post mortem inspection of the animals and carcasses slaughtered, and must obey the orders and dictations of the municipal inspectors; otherwise, their meats are prohibited from being sold in the city. That all persons who slaughter animals at places more than a mile from Portland, and those who within one mile thereof kill not to exceed five animals a week, are not required to comply with the expensive regulations of the ordinance as to sanitation, construction, and maintenance of their slaughterhouses, nor submit their animals to an ante mortem inspection, but may bring them to the city and have them pass a post mortem inspection there, which right is denied to carcasses slaughtered within one mile of the city where more than five animals a week are killed.

A demurrer was filed to the complaint, on the ground that the facts stated entitled plaintiffs to no relief. This was sustained. Plaintiffs refused to plead further, and a decree was rendered, dismissing the complaint, from which plaintiffs appeal.

brook & Dibble, John F. Logan, and J. J. E. B. Seabrook, of Portland (Malarkey, SeaFitzgerald, all of Portland, on the brief), for appellants. W. P. La Roche and Henry A. Davie, both of Portland, for respondents.

BEAN, J. (after stating the facts as above). The question for determination upon this appeal is whether the facts so alleged in the complaint and admitted by the demurrer show that the ordinance has the improper and illegal effect claimed by the plaintiffs; that is, does the ordinance abridge any lawful privilege of the plaintiffs, or grant any special franchise to other classes of meat sellers which is not allowed the plaintiffs on the same terms or unreasonably discriminate against them. Counsel for the plain

is unenforceable and void. It is claimed by the city that the purpose and aim of the ordinance is to preserve and protect the public health, which renders it necessary and convenient to classify meat sellers into three different classes, as follows:

The first consists of all persons engaged in the city in selling meats which have been inspected by the United States Department of Agriculture or which have been slaughtered in an establishment inspected by it. This class, which is styled by the plaintiffs as the "more favored" one, is wholly excepted from the provisions of the ordinance by section 2 thereof.

The second class consists of those engaged in Portland in selling meat which has been slaughtered outside of and more than one mile from the city, or, if slaughtered outside of and within a mile of the municipality, meat slaughtered by persons who kill no more than five animals a week. This class may sell such meat within the city, provided they present the carcasses for inspection at some place therein in accordance with section 12 of the ordinance, without complying with the provisions thereof as to permits for slaughterhouses, sanitation, inspection, etc. These the plaintiffs term the "less favored" class.

The third class consists of all persons engaged in the city in selling meat which has been slaughtered outside of and within one mile of the city by persons who kill more than five animals a week. They are prohibited from selling such meat within the city unless they comply with the several sections of the ordinance. They are not permitted, as the second class is, to have their meats inspected within the city, but are expressly excluded from so doing by the provisions of section 12. The plaintiffs term this last class, to which they belong, the "unfavored and burdened."

Plaintiff's maintain that the classifications made by the ordinance stifle competition and are positively detrimental and opposed to the allowed purpose of protecting the public health. It is asserted on behalf of the city that at the present time, and for many years past, the city of Portland has had in operation several ordinances designed to protect the public health from the ravages of disease spreading through food products. There are sanitary ordinances, market ordinances, and an ordinance prohibiting the slaughtering of animals within the city limits. The proprietors of butcher shops, delicatessen stores, restaurants, and other eating places are required to observe certain regulations with respect to the conduct of their business, and are prohibited from selling or offering for sale any food products which are unfit or unwholesome for human food. With the growth and expansion of the city, it has become a difficult problem for the officials in charge to see to it that these several regulations are strictly observed and the prohibitions enjoined are not violated to the injury of the public. These circumstances gave rise

to additional legislation upon the subject of health protection, and it was found that stricter compliance with the sanitary and health regulations of the city could be effected by the enactment of an ordinance requiring a thorough inspection of food products before the same were admitted to the city to be offered for human consumption. Experience showed that contagious and infectious diseases are communicated in a great majority of cases through milk and meat products. Accordingly, some time ago, the city of Portland enacted an ordinance requiring a thorough inspection of dairy herds and of milk produced therefrom before such milk could be even brought into the city for the purpose of offering the same for sale therein.

The meat inspection ordinance is designed to provide for a thorough inspection of all meat and meat products before the same are admitted to the market places of the city to be offered for sale for human consumption, in order to protect the public health. The elimination of slaughterhouses from the city limits naturally caused their location a short distance from the municipal boundaries. It is conceded that the slaughterhouses from which the city's supply of meat is chiefly derived are located within the prescribed onemile zone, with the exception of one under federal regulation.

[1, 2] The enactment of laws for the inspection of foodstuffs is within the police power of the state. This is not questioned. Chicago Bd. of Trade v. Cowen, 252 Ill. 554, 96 N. E. 1084; Foote v. Stanley, 117 Md. 335, 82 Atl. 380; Patapsco Guano Co. v. Bd. of Agriculture, 171 U. S. 345, 18 Sup. Ct. 862, 43 L. Ed. 191. The Portland charter confers the power to require the inspection of articles of food offered for sale for human consumption within the municipality where it applies to those who bring or send their products into the city for sale for such purposes. Norfolk v. Flynn, 101 Va. 473, 44 S. E. 717, 62 L. R. A. 771, 99 Am. St. Rep. 918; State v. Nelson, 66 Minn. 166, 68 N. W. 1066, 34 L. R. A. 318, 61 Am. St. Rep. 399; Adams v. Milwaukee, 144 Wis. 371, 129 N. W. 518, 43 L. R. A. (N. S.) 1072.

[3] We will first consider the ordinance as to the second class, or all persons engaged in the city in selling meats which have been slaughtered outside of and more than a mile from the municipality, or, if slaughtered outside of and within a mile of the city, meat slaughtered by a person who slaughters no more than five animals a week. As a matter of fact, it is asserted that there are very few, if any, establishments beyond the onemile zone at which more than five animals are slaughtered each week for sale in the city. With regard to those who slaughter less than five animals a week it would be manifestly impracticable to require them to observe the regulations with respect to slaughterhouses. It is not to be presumed that such persons maintain slaughterhouses.

They are mostly small farmers who occasion- | borders. But in so far as the ordinance proally sell the meat of an animal on the pub-hibits the sale within the city of the products lic markets of Portland. There are reason- of those places, unless the regulations have able grounds for making a separate classification for such small producers. See Ex parte Case, 70 Or. 291, 301, 135 Pac. 881, 141 Pac. 746. Different regulations for such a class are made in the federal rules for the inspection of meats for interstate and foreign commerce.

It would not seem practical for the city inspectors to travel all over the state or at great distances beyond the confines of the city, in order to perform their duties and inspect establishments located outside of the one-mile limit. None of the members of the second class, however, are immune from regulation. Section 12 of the ordinance provides that the members of this class who desire to sell meats for human food in the city shall bring their products to a central depot for inspection, and that the same shall be passed or condemned according to the provisions of the ordinance. This arrangement was made by the legislative department of the city with a full knowledge of local conditions. Such classification may depend upon the degree of evil without being arbitrary or unreasonable. International Harvester Co. v. Mo., 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276, 52 L. R. A. (N. S.) 525; Ozan Lbr. Co. v. Union Co. Nat. Bank, 207 U. S. 251, 28 Sup. Ct. 89, 52 L. Ed. 195; Heath & M. Mfg. Co. v. Worst, 207 U. S. 338, 28 Sup. Ct. 114, 52 L. Ed. 236; Chicago Dock & C. Co. v. Fraley, 228 U. S. 680, 33 Sup. Ct. 715, 57 L. Ed. 1022. We cannot say that the municipal law is either arbitrary or unfair because farmers who slaughter a few animals and sell the meat for human food within the city, and some others from a distance who possibly may do so, all under inspection, are not subject to all the regulations as to sanitation of slaughterhouses, etc. As said by Mr. Justice Peckham in Ozan Lbr. Co. v. Union Co. Nat. Bank, 207 U. S. 251, at page 256, 28 Sup. Ct. 89, on page 91 (52 L. Ed. 195):

"It is almost impossible, in some matters, to foresee and provide for every imaginable and exceptional case, and a Legislature ought not to be required to do so at the risk of having its legislation declared void, although appropriate and proper upon the general subject upon which such legislation is to act, so long as there is no substantial and fair ground to say that the statute makes an unreasonable and unfounded general classification, and thereby denies to any person the equal protection of the laws. classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things."

In a

been complied with, it is enforceable and a compliance with the regulations is exacted as a condition precedent to the selling of such products in the city. The Constitution of the United States was framed on the theory that all power resides in the people, and in promulgating that instrument the people of the several states reserved to themselves all powers except those expressly delegated to the federal government by the Constitution. Among the powers so reserved to the people was that which has come to be known as the police power of the several states and it has been appropriately said that the police power is inherent in all government. It is, so to speak, a weapon for self-defense which must necessarily be possessed by all governments, It is that power by which the greatest good may be secured to the greatest number. From this principle has arisen the maxim: "Salus populi suprema est lex." In conformity with this maxim a fair and liberal construction should be applied to all laws which are intended to protect the health of the people in general. That rule has been uniformly applied, even where the enforcement of the law will result in sundry burdens and inconveniences to individuals. A greater reason for such an application of the rule exists in these modern times on account of increasing population, and the many new agencies and methods for the distribution of food, medicines, and other articles for human consumption. The wisdom of salutary laws relating to contagious diseases and proper restraints in relation thereto, cannot be questioned. In order to promote the public health individual convenience and profit must be enjoyed in proper subjection to and observance of the laws for the protection of the same. State v. Starkey, 112 Me. 8, 90 Atl. 431; Stettler v. O'Hara, 69 Or. 519, 139 Pac. 743. Under fair and reasonable classifications and regulations, plaintiffs would have no valid cause to complain on account of some inconvenience and necessary expenditures required by the ordinance for the public weal.

[6] We come next to the first class, which is wholly exempt from the provisions of the ordinance as to slaughterhouses, which are inspected by the United States Department of Agriculture, wherever situated. A statute designed to prevent the spread of contagious diseases or to protect the health of the public, which operates upon all substan[4, 5] The first and third classes embrace tially alike, is not inimical to the federal or by far the major portion of the packing hous-state constitution. Adams v. Lytle (C. C.) es from which the Portland market derives 154 Fed. 876; Adams v. Milwaukee, 144 Wis. its supply of meats. It is, of course, apparent that as compulsory regulations, the ordinance is extraterritorial and unenforceable. The city has no power to enforce a compliance with them because places and opera

371, 129 N. W. 518, 43 L. R. A. (N. S.) 1072, and notes; Pierce v. Dillingham, 203 Ill. 148, 67 N. E. 846, 62 L. R. A. 888.

[7, 8] The requirements of the ordinance applicable to the third class, to which plain

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