State v. Kincaid

*105 Rehearing denied June 3, 1930

On Petition for Rehearing

( 288 P. 1015 )

The defendant has filed a petition for rehearing. Por a statement of the case see onr original opinion, "wherein we held chapter 381, General Laws of Oregon, 1929, to be valid.

In our consideration of this petition, we are limited to the grounds set forth therein. The petition, in its entirety, reads:

“Comes now the appellant in the above entitled cause, and respectfully petitions the court for a rehearing, and that the opinion of the court made, rendered and filed March 25,1930, be modified in the following particulars for the following reasons, to wit:

“1. That the law considered in said opinion be declared invalid and unconstitutional as constituting class legislation, because it makes an unreasonable classification between cities or towns having a population of 500 or more and those having a population of less than 500 for the purposes of said statute, and that the court erred in ruling and holding that—

“ ‘Nor is this law invalid because it excepts from its operation municipal corporations having a population of 500 or more.’ ”

In our original opinion we set forth a number of the leading authorities of this state that fully answer the contention of the appellant that the statute referred to is unconstitutional in that it is in conflict with section 20, article 1, of our fundamental law. These authorities hold that legislation which affects alike all persons pursuing the same business, under the same conditions, is not such class legislation as is prohibited by this section: of the constitution. In addition, see State v. Muller, 48 Or. 252 ( 85 P. 855 , 120 Am. St. Rep. *106 805 , 11 Ann. Cas. 88); Hall v. Dunn, 52 Or. 475 ( 97 P. 811 , 25 L. R. A. (N. S.), 193); State v. Wright, 53 Or. 344 ( 100 P. 296 , 21 L. R. A. (N. S.) 349); Churchill v. City of Albany, 65 Or. 442 ( 133 P. 632 , Ann. Cas. 1915A, 1094); Simpson v. O’Hara, 70 Or. 261 ( 141 P. 158 ); Camas Stage Co. v. Kozer, 104 Or. 600 ( 209 P. 95 , 25 A. L. R. 27). See also In re Oregon Tunnel Dist. No. 1, 120 Or. 594 ( 253 P. 1 ).

In tbe first instance, the legislature is the judge of legislation necessary for the public benefit, and the legality of all police regulations depends upon whether they can ultimately pass the judicial test of reasonableness: Union Fishermen’s Co-Operative Packing Co. v. Shoemaker, 98 Or. 659 ( 193 P. 476 , 194 P. 854 ). We believe that the statute in question will stand this test.

In the case of Rast v. Van Deman & Lewis, 240 U. S. 357 ( 36 S. Ct. 370, 374 , 60 L. Ed. 679 , Ann. Cas. 1917B, 455, L. R. A. 1917A, 421), there appears the following expression by the highest tribunal of our land, where the court, speaking through Mr. Justice McKenna, thus announced the rule of law applicable to a situation like the one before us:

“It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed: Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 ( 55 L. Ed. 369 , Ann. Cas. 1912C, 160, 31 Sup. Ct. Rep. 337). It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety: Chicago, B. S Q. R. R. v. McGuire, 219 U. S. 549 ( 55 L. Ed. 328 , 31 Sup. Ct. Rep. 259); German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 413, 414 ( 58 *107 L. Ed. 1011, 1022 , L. R. A. 1915C, 1189, 34 Sup. Ct. Rep. 612); Price v. Illinois, 238 U. S. 446, 452 ( 59 L. Ed. 1400, 1405 , 35 Sup. Ct. Rep. 892).

“It is the duty and function of the legislature to discern and correct evils, and by evils we do not mean some definite injury but obstacles to a greater public welfare: Eubank v. Richmond, 226 U. S. 137, 142 ( 57 L. Ed. 156 , Ann. Cas. 1914B, 192, 42 L. R. A. (N. S.) 1123, 33 Sup. Ct. Rep. 76); Sligh v. Kirkwood, 237 U. S. 52, 59 ( 59 L. Ed. 835, 837 , 35 Sup. Ct. Rep. 501). And, we repeat, ‘It may make discriminations if founded on distinctions that we can not pronounce unreasonable and purely arbitrary’: Quong Wing v. Kirkendall, 223 U. S. 59, 62 ( 56 L. Ed. 350 , 32 Sup. Ct. Rep. 192), and cases cited above.”

A statute that has stood the test of time and affords an excellent example of classifications permitted under the police power is the old liquor statute enacted by the legislature of this state in 1889, which provided:

“No person shall be permitted to sell spirituous, malt or vinous liquors in this state in less quantities than one gallon without having first obtained a license from the county court of the proper county for that purpose”: Gen. Laws of Oregon, 1889, p. 9, § 1.

That statute provided for a four-hundred-dollar license per annum, and a bond in the penal sum of $1,000. At section 11 thereof it was provided that the act should be so construed as not to apply in any manner to incorporated towns and cities of this state.

With respect to the contention of defendant as set out in his petition for a rehearing, it has been held by eminent authority that a law is general and uniform, not because it operates upon every individual in the state but because every person brought within the relations provided for in the statute is within its provisions. See Winston v. Moore, 244 Pa. St. 447 ( 91 Atl. 520 , Ann. Cas. 1915C, 498, L. R. A. 1915A, 1190).

*108 On the subject of class legislation much might be written. But further citation or discussion is deemed unnecessary. It is not the business of the court, but the province of the legislature, to determine the necessity, the expediency, and the wisdom of legislation. In 'the interpretation of such legislation the presumption is in favor of its validity and, in the instant case, this presumption has not been overcome. The legislature had a right to omit to regulate dance halls in incorporated cities having more than 500 inhabitants on the ground that such municipalities were capable of protecting their own citizens who patronize the public dance.

The petition for rehearing will be denied.