(203 P.)

The stairways were constructed and used with proper railings for the protection of the public. Afterwards Marquette was incorporated as a city. In 1878 the common council directed the stairways to be removed as illegal and the openings to be closed. Chief Justice Cooley in considering the case used this language:

the city officials, the city government may, at [ the sidewalks for stairways to the basement. its will, and for no good reason, by an ordinance changing the general regulations in minor particulars, condemn and make unlawful all of the structures so erected, require the electric signs to be removed, the vaults or rooms under the sidewalks adjacent to hotels, department stores, wholesale and retail store buildings, and other buildings large and small to be torn out, and thereby despoil property constructed at great expense pursuant to what are practically contracts between the city and the builders, or subject the builders of the permitted structures to prosecution for a quasi crime, for the infraction of the ordinance. The latter method was pursued in the present case. the least, the grant of such power or "discre tion" to the municipal authorities would be dangerous. It is difficult to believe that the same is understandingly craved. It seems needless to say that the same principle would govern in regard to permits for the different privileges or structures referred to. The motive of the municipal officials is not questioned.

To say

We will not repeat the contents of our for

mer memorandum. In order to make it plain, it may not be amiss to borrow the language of some of the text-writers and courts upon the subject.

In 3 Dillon, Mun. Cor. (5th Ed.) § 1178 et seq., that eminent author discusses the subject of vaults under sidewalks, areas, etc. Section 1178 contains this language:

"In many cities lot proprietors upon streets are permitted or not forbidden to make openings in the sidewalks, in order to obtain an entrance into the basement or cellar. It is also the usage that owners of buildings may make openings under the sidewalk or street to obtain additional cellar room."

In Gregsten v. Chicago, 145 Ill. 451, 34 N. E. 426, 36 Am. St. Rep. 496, it was held that, quoting from the syllabus:

"It is the general doctrine that municipalities, under the power of exclusive control of their streets, may allow any use of them con

sistent with the public objects for which they

may be held.

"A city under special legislative authority, as well as its general powers, may grant permits for and regulate the building of vaults under the streets, alleys and sidewalks, and require such compensation for the privilege as it may deem reasonable and just, when such permits relate solely to such use of the alleys, etc., as is in no wise inconsistent with their use by the public; and such permit when accepted and acted on by the holder by making costly improvements required, will constitute a contract between the city and such holder irrevocable at the mere will of the city."

"It is undoubted that the council had general control of the streets under the village charter; and it was a part of its duty to prevent the creation of any public nuisance within them. It is not to be assumed that consent would have been given to such a nuisance and when by formal resolution the council assumed to give permission to complainant to make the openings have been done in the belief that no public inand build the stairways complained of, it must convenience would follow. If the permission was effectual for no other purpose, it at least rebutted any presumption which might otherwise have existed, that this partial appropriation of the street was per se a nuisance.

"If the permission was a mere license, and the subsequent action of the city council is to be regarded as a revocation of the license, it does not follow that the plaintiff has by the revocation immediately been converted into a wrongdoer. The question will then be whether the act of the complainant in maintaining his structures constitutes a public nuisance; and while the city council is entitled, under its supervisory control of the public streets, to consider and pass upon that question for the purpose of deciding upon the institution of legal proceedings for abatement, it cannot make itself the judge."

He then went on to say that such questions should be tried out in the regular courts, and concluded by saying:

"The city in this case was proceeding in an act of destruction on an assumption that the structures were already condemned as illegal. This was unwarranted, and it was quite right that the action should be restrained."

In Mayor, etc., of Baltimore v. Nirdlinger et al., and Nirdlinger et al. v. Mayor, etc., of Baltimore, 131 Md. 600, 102 Atl. 1014, the Court of Appeals of Maryland considered permits issued by a municipal corporation for various "minor privileges" of the use of the street, such as bay windows, show windows, porches, signs, and the like. Seven bills in equity were filed to enjoin the city officers from interfering with the "minor privileges" connected with, or related to, the buildings from the kind language used by Chief Jusof the respective parties. We quote theretice Boyd, as follows:

"It can make no difference to the public in the use of a street whether a vault, areaway, pole, sign, coalhole, marquee, or show window is paid for or is free; for it is just as much In the case of Everett v. Marquette, 53 an obstruction in the one case as in the other. Mich. 450, 19 N. W. 140, the owner of a build-Indeed, it might well be contended that legislaing obtained permission of the common coun- tion authorizing a municipality to charge for til of Marquette Village to make openings in such privileges to some extent recognizes the

203 P.-21

Other prominent cases cited by plaintiff are Dist. of Columbia v. R. P. Andrews Paper Co. and other like cases, 256 U. S. —, 41 Sup. Ct. 545, 66 L. Ed. - In these cases the District of Columbia granted permits to property owners under a general building ordinance permitting the construction of vaults under sidewalks. The acceptance reads in part thus:

necessity for them, as it is not to be presumed [ which have accrued by this contractual relathat the Legislature would grant the power ex- tion." clusively as a revenue measure, and when they do materially obstruct the public they ought not to be granted, unless there is some real necessity for them. But when they are granted and paid for, or were granted at a time when no money value to the city for them was taken into consideration, but the authorities deemed it proper, possibly desirable, for the city to allow them, and the parties were induced to construct their buildings accordingly, instead of keeping back of the building line so they could keep them on their own ground, or to erect costly improvements, the successors in office of those who granted them ought not to be required, in the discharge of their duties as they understand them, to repudiate the action, or even inaction, with knowledge of what was being done, of their predecessors in office, if that must result in great injury or gross injustice to those who acted in good faith upon the grant, permission, or consent of those in power at the time, unless there is no other proper course for them to pursue."

Electrical signs beautify and illuminate the streets and the city. When constructed in strict conformity to the municipal law and with the approval of the constituted city authorities, they ought not to be rendered illegal without any good reason. Their owners should not be penalized for maintaining them unless they become out of repair, or interfere to some extent with the use of the street, or

are shown to be in some way objectionable.

The record in this case shows the reverse.

[1] The burden of showing facts which demonstrate that the later ordinance, as it affects defendant's sign, is unreasonable, was on the defendant. This burden he has borne by showing the facts to which we have referred.

[2] On the other hand, if the sign in question should become objectionable or unsafe, or under changed conditions should interfere with the use of the street or sidewalk, and it becomes necessary in the exercise of the police power to remove the same, the city would have authority to take proper proceedings to abate the nuisance, or remove the obstruction. Stated differently, the public right in the street is paramount, and the abutter's right to proper use of the street in front of his property is subject to reasonable municipal and police regulations. Ivins v. Trenton, 68 N. J. Law, 501, 53 Atl. 202. The latter case and also City of St. Louis v. St. Louis Theatre Co., 202 Mo. 690, 100 S. W. 627, are cited on behalf of the city. The principle enunciated in the last-named case, which we apply, is couched in the following language:

"If a municipality, by an express grant, authorizes an invasion of a public street, and such invasion does not seriously injure and infringe upon the public use thereof, then such municipality might not be allowed by subsequent ordinance to divest the party, who has acted upon this express grant, of the rights

"This permit is accepted with the understanding that the occupation of the vault space is permitted merely as an accommodation to the owner of the abutting premises, and that no right, title or interest in the public is in any way abridged thereby, except as expressed in said permit and the conditions aforesaid."

Later Congress authorized the District of Columbia to assess and collect rent from all users of space occupied under the sidewalks and streets in the District of Columbia. The congressional act authorizing the collection of the rent was sustained. This means that under certain conditions a reasonable charge may be made, under an act of Congress, for the use of space occupied in a street. See 28 Cyc. 888 (VI). These cases were entirely different from the one at bar. The plaintiff is not merely exacting rent from defendant.

It is said in plaintiff's brief on petition: the ordinance under consideration does not "However, the court states in its opinion that tend to promote public health, safety, morals or welfare; that it cannot be claimed that the requirements of the new ordinance are in the interest of the morals or general welfare of the public."

That is not the language of our former opinion. The misconception appears to be brought about by inserting the word “ordinance" where the court referred to the change required in the "sign." If the writer has not used plain language, it is to be hoped that the quotations of others will be understood.

The petition for rehearing is denied.

On Objections to Costs.

A motion to retax costs has been filed, and will be treated as objections to the costs in the case, as the motion contains such objec tions.

[3] The action is brought for an alleged violation of city ordinances. There is no statutory or city law making the city liable to a judgment for the payment of costs where it fails in a prosecution for a violation of an ordinance. In the absence of such a law, no judgment can be rendered for costs in a criminal or quasi criminal action when the defendant is acquitted. 11 Cyc. 276, par. 6; Village of Sparta v. Boorom, 129 Mich. 555, 89 N. W. 435, 90 N. W. 681; Preston v. Koshkonong, 55 Wis. 202, 12 N. W. 440. Prosecu

(203 P.)

tions under penal ordinances are quasi crim- | 6. Constitutional law 205(2)—Act authoriz. inal actions. 19 R. C. L. 811; Ex parte Howe, 26 Or. 181, 37 Pac. 536.

5. Licenses 1, 7(2) Act authorizing dog license fees held not unconstitutional. Gen. Laws 1919, p. 273, authorizing cities to impose license fees for keeping dogs, is not in violation of Const. art. 9, § 1, requiring that all taxes be levied and collected under general laws operating uniformly throughout the state; the purpose of the act being not to impose a RAND, J. (after stating the facts as above). tax, but to license dogs and regulate the man- The plaintiff contends that under article 11, ner in which they may be kept within the state. § 2, and article 4, § 1a, of the Constitution of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the state, the licensing and control of dogs, large or the municipality, city, or town kept in cities and towns are matters of purely alone, the legislative power of the state, local and municipal concern, that the power when exercised by the Legislature or by the to legislate thereon resides exclusively in the people of the state at large through the legal voters of the city or town, and not in initiative and referendum, is paramount and the Legislature of the state, and that the supreme. This is in accordance with the act in question (chapter 186 of the General meaning and effect of the decisions of this Laws of Oregon 1919) is therefore unconstitu- court in Rose v. Portland, 82 Or. 541, 568, 569, tional and void so far as it attempts to au- 573, 162 Pac. 498; Lovejoy v. Portland, 95 thorize the licensing and control of dogs Or. 459, 468, et seq., 188 Pac. 207; Colby v. kept in cities and towns. Medford, 85 Or. 485, 534, 167 Pac. 487; Hillsboro v. Public Service Commission, 97 Or. 320, 336, 187 Pac. 617, 192 Pac. 390; and Tichner v. Portland, 200 Pac. 466, 468. [3] No presumption of law can be indulged against the validity of a statute. Every statute is presumed to be constitutional. No court is authorized to set aside a statute unless it clearly and unmistakably appears that the statute does plainly and unquestionably violate some provision of the Constitution.

[1] The enactment of laws providing for the control and regulation of the mode of keeping dogs, imposing the payment of license fees upon the owners and authorizing the summary killing of dogs in violation of law is an exercise of the police power of the state and is within the legitimate sphere of the legislative power. The matter of licensing dogs is of as much concern to the people throughout the state at large as it is to the people in any particular locality or community within the state. The keeping of dogs is not confined to cities and towns, but is coextensive with the boundaries of the state. The necessity of regulating the manner in which dogs shall be kept and controlled is as urgent without as it is within the limits of cities and towns, as their proclivity to do mischief is as pronounced in one instance as the other. It is not, therefore, a matter of local concern, but it is one of equal concern to all of the people throughout the state.

It is the wisdom of the Legislature, and not the judgment of the court, which determines the necessity for legislation upon any particular subject and the manner in which the law shall be enforced. The exercise by the state of its power to license dogs and to provide for their summary disposal when .kept in violation of law is a valid exercise of its police power just as much so as it is for the state to legislate for the purpose of preventing the spread of contagious diseases, the use of false weights and measures, the adulteration of food, the regulation of railroads and other public utilities, or the doing of anything which injuriously affects the public health and safety or is detrimental to the morals, welfare, and happiness of the people of the state.

[2] Although the state may delegate to a city the right to exercise the police power, we are not able to give our assent to any suggestion that there has been any surrender of any part of the police power of the state to any city, town, or municipality within the state. As to those matters which are local, special, or municipal in character, and which do not concern the people of the state as a whole or affect its welfare, the right of the legal voters of a city or town to legislate thereon, when not in conflict with a general law of the state, is unquestioned. But, whether the matter concerns the state at

[4] The plaintiff insists that the act in question (chapter 186, General Laws of Oregon 1919) by its operation deprives a person of his property without due process of law contrary to and in violation of the Fourteenth Amendment to the Constitution of the United States of America. Chapter 186, General Laws of Oregon 1919, in effect provides for the holding of an election in any county, election precinct, or incorporated city in the state upon petition of a certain number of legal voters thereof to determine by vote whether dogs shall be permitted to run at large in such county, precinct, or incorporated city, and if at such election the majority of the votes cast are against permitting dogs to run at large, after 60 days following such election it shall be unlawful for dogs to run at large in such county, city, or precinct, and when any dog is found running at large and away from the premises of the owner thereof, without a muzzle securely fastened thereon, the owner of such dog shall be subject to a fine of $10 for the first offense and $25 for each subsequent offense. It is made the duty of every chief of police, constable, sheriff, or deputy to kill all dogs found running at large without having such muzzle securely fastened thereon, and not in the company and under the control of the owner or keeper. The act also provides that the owner of any dog shall pay a license fee of either $1 or $2 to the county clerk of the county according to the sex of the dog, and upon payment of such license fee the county clerk shall issue a license and deliver a leather collar stamped with the year and number of the license thereon, and any dog not wearing such collar shall be considered an outlaw and shall be killed by the officers designated if found running at large. The act provides that the moneys paid for fines and for licenses when collected shall be paid into the county treasury and be kept

(203 P.)

the Supreme Court of the United States, have decided this question adversely to the decision made in Rose v. Salem, supra, we would be constrained to apply to this case the doctrine there applied, if we were now passing upon a city ordinance, and not an enactment by the Legislative Assembly of the state.

for a special fund, and from this fund the [ If it were not for the fact that practically costs of prosecution and damage done to all of the decisions of the courts, including domestic live stock by dogs in such county, precinct, or city shall be paid. The act also provides that any owner or keeper of dogs who neglects to apply for or fails to pay the license fee during the month of January in each year shall pay a fine of $10, and that the owner or owners of any sheep, goats, or other domestic animals killed or injured by any dog or dogs may, within 10 days after such killing or injury, present to the board of county commissioners a verified statement and account of the killing or injury of such animals and the amount of damages claimed therefor. The act also provides that upon the presentation of such claim the board shall allow or disallow the same as it may deem proper, and, if allowed, a warrant shall be drawn against the said fund for the amount of the damages allowed.

In support of his contention the plaintiff cites the case of Rose v. Salem, 77 Or. 77, 150 Pac. 276. That case was largely based upon the assumption that, the statute having declared dogs to be personal property and having made them the subject of larceny, the right of ownership in dogs was thereby placed on the same plane of ownership as other personal property in general, and therefore the summary destruction of a dog without notice to the owner for a violation of a city ordinance would operate to deprive the owner of his property without due process of law within the meaning of the Fourteenth Amendment. The right of ownership in dogs has always been recognized as a right of property in this state. Section 9358, Or. L., as passed by the Legislature in 1860, recognized such right by the use of the words "the owner of any dog." In 1889 (Laws 1889, p. 38), the Legislature amended section 1950, Or. L., by adding to the statute the word "dog," thereby making a dog the subject of larceny in this state.

In 1907

(Laws 1907, p. 359) the Legislature by section 9357, Or. L., declared a dog to be personal property, and in respect to this section, it was in effect held in McCallister v. Sappingfield, 72 Or. 422, 425, 144 Pac. 432, 433, that the enactment of this section did not create a new right, but was a legislative recognition of a right which existed at and prior to its passage. The court said:

The question of whether a law enacted by the Legislature of a state contravenes the federal Constitution is ultimately a question for the federal courts to determine, and their decision upon that question is binding upon every state court.

In Sentell v. New Orleans C. R., 166 U. S. 698, 17 Sup. Ct. 693, 41 L. Ed. 1169, after citing with approval excerpts from many authorities upholding as constitutional statutes and ordinances equally as drastic as the provisions under consideration here and some of them containing identical provisions complained of in the act in question, the court said:

"Even if it were assumed that dogs are prop

erty in the fullest sense of the word, they would still be subject to the police power of the state, and might be destroyed or otherwise dealt with, as in the judgment of the Legislature is necessary for the protection of its citizens. That a state, in a bona fide exercise of its police power, may interfere with private property, and even order its destruction, is as well settled as any legislative power can be which has for its objects the welfare and comfort of the citizen. For instance, meats, fruits, and vegetables do not cease to become private property by their decay; but it is clearly within the power of the state to order their destruction in times of epidemic, or whenever they are so exposed as to be deleterious to the public health. There is also property in rags and clothing; but that does not stand in the way of their destruction in case they become infected and dangerous to the public health. No property is more sacred than one's home, and yet a house may be pulled down or blown up by the public authorities, if necesary to avert or stay a general conflagration, and that, too, without recourse against such authorities for the trespass. Bowditch v. Boston, 101 U. S. 16; Mouse's Case, 12 Coke, 63; Governor, etc., v. Meredith, 4 T. R. 794, 797; Stone v. Mayor, etc., 25 Wend. 157; Russell v. Mayor, etc., 2 Denio, 461.

"Other instances of this are found in the power to kill diseased cattle, to destroy obscene books or pictures, or gambling instruments, and, in Lawton v. Steele, 152 U. S. 133, it was held to be within the power of a state to order the summary destruction of fishing nets, the use of which was likely to result in the extinction of valuable fisheries within the waters of the

state.

"This enactment is but a legislative declaration of the present-day common law, found in the decisions of most of the states of the Union. This modern conception of the dog as personal property, whether embodied in legislative enactments or judicial decisions, is the natural evolution of the status of the dog as known at common law, which considered the animal to be property, yet of an inferior sort. Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec.liberty, or property without due process of law; 175; Jemison v. Southwestern R. R., 75 Ga. 444, 58 Am. Rep. 476; State v. Topeka, 36 Kan. 76, 12 Pac. 310, 59 Am. Rep. 529; 1 R. C. L. 1113."

"It is true that under the Fourteenth Amendment no state can deprive a person of his life,

but in determining what is due process of law we are bound to consider the nature of the property, the necessity for its sacrifice, and the extent to which it has heretofore been regarded