CRAWFORD, J. (Pro Tempore)
Plaintiff appeals from judgment on order sustaining demurrer to its third amended complaint, electing to stand on the pleading.
The suit challenges the validity of Ordinance No. 6 of the City of Oceanlake, enacted April 17, 1946, entitled:
Pertinent portions of the questioned ordinance may be digested as follows:
Section 2. Requires a license from any person who conducts, carries on, or practices any business, trade, occupation, profession, or calling within the city of Oceanlake.
Section 3. Requires such license as indicated in Sec. 2 "Except as hereinafter provided." (Exceptions appear in Sec. 10.)
Section 8. This states such license fees "* * * are for the purpose of raising revenues as well as for the purpose of regulation, and that any and all license fees required hereby shall be considered reasonable and legal for the purpose of raising revenues, regardless of the cost of regulation." (Italics ours.)
Section 10. "Exceptions. The provisions of this ordinance shall not be deemed to require a license
Section 21. Defines bakeries and bakery distributors and requires a license from any person engaged in the "business" of operating or conducting a bakery or the "business" or occupation of bakery distributor.
The third amended complaint alleges in substance; that plaintiff is engaged in the business of baking bread and bakery products and distributing the same and continues in Paragraph III:
Plaintiff pleads the "charter" of the city of Oceanlake upon which the city's action was based was adopted through an initiative proceeding at an election held November 3, 1945, and continues with the substance of the act of incorporation as follows:
Thereafter and on August 9, 1949, a charter was approved at a special election.
There are four assignments of error. In substance these question "charter" or any authority for enactment of the ordinance, reliance of the trial court on ORS 221.916 "* * * since said ordinance is a revenue measure", lack of uniformity violating Section 20 of Article I of the Oregon Constitution and error in finding plaintiff's activities constituted "engaging in business" in the city.
1, 2. Assignment of Error No. 1. The court should have found a lack of authority for the enactment of the ordinance. Although, as stated, plaintiff's complaint alleges that "the charter of the City of Oceanlake * * * was adopted through an initiative proceeding," it is contended that in fact the city has no charter and therefore no powers, that the voters in the territory did no more than "indicate that a certain area thereafter was to be known as `Oceanlake'." The proceedings for incorporation of Oceanlake were taken pursuant
Plaintiff bases his argument upon the proposition "* * * that unless there can be found in the charter of the city of Oceanlake the authority to enact or adopt Ordinance No. 6, the same is without force and effect." Plaintiff continues:
And plaintiff continues with the observation, "The nearest approach to any language in the chapter showing an intent to confer power is Section 5 of Chapter 453 of the Laws of 1941," which has been codified as ORS 221.410. The first subsection of this section reads, as follows:
Article XI, Section 2 of the Oregon Constitution provides for the formation of corporations under general laws while prohibiting their creation by the legislative assembly by special laws. In Wilson v. City of Medford, 107 Or. 624, 215 P 184, p 191, this court stated:
In State v. Gilbert, 66 Or. 434, 134 P 1038, this court held this article of the Constitution did not infringe on the right of the legislature to make general laws for the formation of corporations. However, plaintiff questions the right of a city to operate without having adopted a charter. In construing the Incorporation Act of 1893 this court has held a city may function under a legislative act even without a charter since the act itself prescribed the powers that might be exercised by a city incorporated pursuant to its terms. State ex rel Cutlip v. North Bend, 171 Or. 329,
In Portland Baseball Club v. Portland, 142 Or. 13, 17, 18 P.2d 811, it is stated:
And from Albany v. McGoldrick, 79 Or. 462, 155 P 717:
In State ex rel v. North Bend, 171 Or. 329, 137 P.2d 607, supra, the court held it was unnecessary for a new municipal corporation under the 1893 act to adopt a charter, the act itself prescribing their powers.
Plaintiff attempts to distinguish these cases and to demonstrate their inapplicability on the ground that they were concerned with the Act of 1893 which specificially enumerated city powers while our grant of power is a "General Grant." However, in our opinion they are applicable in that they are addressed to the alleged necessity of a "charter" and authority that may be exercised under a general statute. The itemization of powers in the act of 1893 and the general grant under the Act of 1941 does not make decisions under the former inapplicable to the principle common
As to Assignment of Error No. 1, we find authority existed for the enactment of the ordinance.
3. Assignment of Error No. 2. The court erred in holding ORS 221.916 gave the city authority to enact a revenue measure. It is argued that this statute (Subsection 7) is confined to regulation and control by way of license. That no revenue authority is conferred and that the Act of 1941 is designed for revenue purposes only and therefore not within the authority granted.
ORS 221.916 is part of the Act of 1893 and without application to cities not incorporated under that law. Albany v. McGoldrick, supra; Colby v. City of Medford, 85 Or. 485, 167 P 487. No error.
4. Assignment of Error No. 3. The court erred in not holding the ordinance void as not uniform in its application to all similarly situated. The argument of unreasonable classification is answered by the term of the "Exception" exempting a business conducted incidental to and as a part of any general business * * * for which a license has been issued hereunder. * * *" Plaintiff does not come within the exception, others do. The classification is reasonable and addressed to legislative discretion.
Further, under Section 21 of the ordinance, bakeries and bakery distributors are grouped together and the license is required of residents and non-residents alike. No error.
Ideal Tea Co. v. Salem, 77 Or. 182, 150 P 852, relied on by plaintiff is to be distinguished from our case in
5. Assignment of Error No. 4. The court erred in finding plaintiff's operations in Oceanlake constituted "engaging in business" in the city. Plaintiff's business operations as set forth in the third amended complaint constituted "engaging in business." Wittenberg et al v. Mutton et al, 203 Or. 438, 280 P.2d 359. No error.
Summarized, our conclusions are these: Under Article XI, Section 2 of the Oregon Constitution, the legislature may enact general laws for the formation of corporations. Chapter 453, Laws of 1941, under which the city of Oceanlake is incorporated, is such general law. Section 5 of said act, codified as ORS 221.410, is a "general grant" of power and includes the authority to enact the ordinance in question. It is express. City of Glendale v. Trondsen, 48 Cal.2d 93, 300 P.2d 235; Angell v. City of Toledo, (Ohio Common Pleas), 88 N.E.2d 595; State v. City of Duluth, 134 Minn. 355, 159 NW 792; Paulsen v. Portland, 149 U.S. 30, 37 L Ed 637, 13 S.Ct. 750.
Plaintiff is engaged in business in the city. The act does not violate Article I, Section 20 of the Oregon Constitution.