Renshaw v. Lane County Court

89 P. 147, 49 Or. 526, 1907 Ore. LEXIS 154

• Court: Oregon Supreme Court
• Decided: March 19, 1907
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

The transcript shows that the charter of the City of Eugene, passed in February, 1893, empowered the common council as follows:

“To license, tax, regulate or prohibit barrooms, drinking shops, tippling houses, billiard rooms, daneehouses, and all places where spirituous, malt or vinous liquors are sold”: Laws 1893, pp. 564, 574, §48, subd. 18.

A local option law, initiated by petitions, pursuant to an amendment of the constitution (1 B. & C. Comp. p. 72), was enacted by vote of the citizens of the state at an election held June 6, 1904. Laws 1905, pp. 41, 50. This act proscribes the manner of prohibiting the sales of intoxicating liquors in any county or part thereof, including an incorporated town or city, by a majority vote of the qualified electors in favor of the measure. An act was passed by the legislature assembly in February, 1905, reincorporating the City of Eugene, and repealing all acts and parts of acts in conflict therewith: Sp. Laws 1905, pp. 243, 279. The new charter was adopted to enable the city to acquire a system of waterworks, to secure a plant for manufacturing gas or generating electricity for illumination, and to sell municipal bonds to raise money therefor. The amendment empowered the common council, inter alia,, as follows:

“To license, tax, regulate or prohibit barrooms, drinking shops, tippling houses, billiard rooms, dancehouses and all places where spirituous, malt, vinous or intoxicating liquors are sold”: Sp. Laws 1905, pp. 243, 252, § 48, subd. 18.

1. It is contended by plaintiffs’ counsel that the passage of the local option law referred to so amended the old charter of Eugene as to take from the common council the power to prohibit the sale of intoxicating liquors, and vested the authority in the electors of the county or in the voters who resided in a part thereof, which might include the limits of the city; that when the new charter Avas passed in February, 1905, restoring to the council the power of AArhich they had been divested in the manner indicated, the enactment was the latest expression of the legislative will, and necessarily repealed the local option laAv, so far as it had been applicable to Eugene, thereby depriving the electors of authority to prohibit the sale of intoxicating liquors AAdthin the city; and, this being so, the Arote in favor of prohibition as cast in the entire county, improperly including Eugene, was ineffectual for that purpose within the limits of the city, and for these reasons errors were committed in dismissing the suit, and in not granting the injunction invoked.

An examination of the local option laAv convinces us that, though the enactment is general, and became operative in the entire state at the time of its passage, it did not effect any material change in the existing municipal charters which authorized the licensing or permitted the prohibition of the sale of intoxicating liquors in an incorporated toAA'n or city, until its provisions were made specially applicable to a particular locality by a majority vote .of the electors thereof in favor of prohibition. The law thus enacted by the people should be read in connection with the charters mentioned, and is, in effect, a declaration that an exercise of the powers granted by the legislative assembly to incorporated towns and cities, as evidenced by municipal charters, to' issue or to deny licenses for the sale of intoxicating liquors, might be continued until changed in the manner prescribed. The law adverted to practically -ingrafted upon the charter of every city or incorporated town in the state an amendment limiting the powers granted, as indicated by the quoted words following: The common council (or other legislative body) shall have power, within the municipal limits, “until deprived thereof in the manner prescribed in the local option law, enacted by the people June. 6, 1904,” to license, tax, regulate or prohibit, etc.: Sandys v. Williams. 46 Or. 327 (80 Pac. 642); Fouts v. Hood. River, 46 Or. 492 (81 Pac. 370: 1 L. R. A., N. S., 483); Baxter v. State, 49 Or. 356 (88 Pac. 677). Such being the effect of the local option law, it did not take from the common council of Eugene the power which they acquired under the charter, until they were deprived thereof by a majority vote in favor of prohibition by the electors .of Lane County, which territory included the limits of the city.

2. Nor do we think the act of February, 1905, amended the old charter in respect to the power mentioned, for an examination of the clauses hereinbefore set out will show that they are identical, except that in the new charter the word “intoxicating” is inserted. The beverages mentioned in the old charter are “spirituous, malt or vinous,” and as the qualifying word “intoxicating,” used in. the new charter, is a synonym of the lands of liquor specified in the old, no material change was made in or force added to that clause by the alleged amendment. The new charter, so far as it related to the grant of power to license or to prohibit the sale of intoxicating liquors, was not a new statement of the authority conferred, but a repetition of the earlier enactment; and, this being so, no change was made in the original clause relating to the power to prohibit: Allison v. Hatton, 46 Or. 370 (80 Pac. 101).

No error having been committed as alleged, the decree is affirmed. Affirmed.