State v. Hearn

115 P. 1066, 59 Or. 227, 1911 Ore. LEXIS 130

• Court: Oregon Supreme Court
• Decided: May 31, 1911
• Status: Published

Opinions

Mr. Justice Moore

delivered the opinion of the court.

It is maintained that the amendment referred to impliedly repealed that part of the local option law which made an entire county the maximum limit of prohibition, thereby excluding from such territory all incorporated cities and towns therein, and that as the alteration in the constitution contained no provision whereby violations of the prohibition law committed within the limits of such municipality prior to the adoption of the amendment were saved from the effect thereof, errors were committed in refusing to direct a verdict of not guilty and in giving the judgment, which is brought up for review. The altered section of the organic act now reads as follows:

“Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the State of Oregon (and the exclusive power to license, regulate, control, or to suppress or prohibit the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon).” L. O. L. p. 25.

The parts included within parenthesis as above noted were added pursuant to an exercise of the initiative power.

1. That certain provisions of the local option law were impliedly repealed and other clauses thereof were amended in the same manner has already been determined in construing the alteration of the organic act under consideration. State v. Schuler, 59 Or. 18 (115 Pac. 1057). It is believed that, while some provisions of the amended section of the constitution are self-executing, others require legislation to render them efficient with respect to precincts which lie partially within and partially without an incorporated city or town, so as to make the conflicting boundaries of such precincts conform to the limits of the municipality. The amended section separates from a county incorporated cities and towns, rendering all wards and precincts wholly within such municipalities generally independent of the remaining territory in all respects except as to pre-existing orders of prohibition which were applicable to the entire county, and such orders can be abrogated only by a majority vote of the qualified electors residing in the city or town, given against prohibition at an election called for that purpose by the county court. Where pre-existing orders of prohibition dominate a city or town, the same agency now supervises such elections as managed them before the fundamental law was changed. If no order of prohibition governs such municipality, it has “exclusive power to license, regulate, control or to suppress or prohibit the sale of intoxicating liquors therein.” The county court having been thus retained by the amendment as the agency and authorized to put into or out of operation orders of prohibition, or to maintain an interdiction of the sale of intoxicating liquors in an incorporated city or town, that alteration of the organic act did not in our opinion so repeal or amend any part of the local option law as to require a saving clause to preserve the right to punish a violation of that.enactment committed prior to November 8, 1910.

In support of the principle asserted by defendant’s counsel, he calls attention in his brief to the doctrine announced in Texas, which seems to sustain his view. In that State under a local option law somewhat similar in its provisions to the Oregon statute on that subject, it was held that after the sale of intoxicating liquors had been prohibited pursuant to an election in any specified district, a majority vote of the qualified electors of the territory cast at a subsequent election repealed the local option law in the district, and, as such enactment contained no saving clause, violations of its provisions committed prior to the change of the order of prohibition could not be thereafter punished. Halfin v. State, 5 Tex. App. 212; Wisenhunt v. State, 18 Tex. App. 491; Woodlief v. State, 21 Tex. App. 412 (2 S. W. 812).

2. We cannot assent to the principle thus declared, nor do we believe that a majority vote against prohibition in a district where an order was in force, interdicting the sale of intoxicating liquors, repealed a legislative act. Prior to the amendment of the constitution, intoxicating liquors could be sold at times by persons who had secured a license for that purpose, and there were other occasions when no legal license could be issued.

Defendant’s counsel assigns various reasons illustrating his theory of the case, but, as most of these questions were determined in the case of State v. Schuler, 59 Or. 18, (115 Pac. 1057), and others are deemed immaterial, the judgment is affirmed. Affirmed.

Mr. Justice Burnett : I concur in the result.