State v. Schluer

115 P. 1057, 59 Or. 18, 1911 Ore. LEXIS 101

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

Opinions

Mr. Justice Moore

delivered the opinion of the court.

. The question to be considered is whether or not the change of the organic law referred to relieved the city of Joseph from the order of prohibition in force in Wallowa County as a whole so as to permit the municipality, pursuant to its charter and an ordinance, to license the sale of intoxicating liquors within its limits when no local option election was ever held in the city alone, but in a precinct that included such municipality. The altered section is 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 change made November 8, 1910, consists in the addition of the words included within the parentheses above noted. The local option law referred to is set forth in the code as Sections 4920-4937, L. O. L. By that act it devolves upon a county court upon the receipt of a proper petition therefor to order an election to be held in the entire district described in the application. The territory which may be included therein is an entire county, or a subdivision thereof which contains two or more contiguous precincts, or it may be composed of a single precinct.

“Such subdivision of a county, or a precinct of a county, may embrace in its limits incorporated towns and cities and portions thereof, or may consist of the whole or a portion of an incorporated city or town, or may lie partially within and partially without an incorporated city or town.” Section 4920, L. O. L.

Elections to determine whether or not the sale of intoxicating liquors for beverage purposes is to be prohibited in any designated territory shall be held only on the first Tuesday after the first Monday in November of any year.

“The elections provided for by this act shall be held at the regular voting place or places within the proposed limits and by the judges and clerks of election appointed and qualified under the general election laws of the State, or if held at the time of a city election, then within said city or town by the judges and clerks appointed and qualified under the charter of such incorporated city or town or under the laws of the State regulating such city or town election, and the returns thereof shall be made in conformity with the provisions of said general election laws. If, under the provisions of this act, an election shall be demanded wholly or in part in any incorporated city or town or any ward or precinct therein, to be held at the time of the city or town election in a year in which there is no general election, then the county clerk shall notify the proper authority of such city or town that such election has been demanded in order that such city or town authority may cause the official ballots to be prepared in accordance with the provisions of this act, and the city auditor, or clerk, or recorder, as the case may be, shall make return to the county clerk of the vote for and against prohibition in the several precincts of said city or town, and thereafter said matter shall proceed as in the case of a general election.” Section 4922, L. O. L.

If, at a local option election, a majority of all the votes cast in a county as a whole, or in a subdivision thereof, or in any precinct therein, is for prohibition, the county court must make an order declaring the result of the vote and absolutely prohibiting the sale of intoxicating liquors for beverage, purposes within the prescribed limits.

“The county court shall issue an order of prohibition for each and every subdivision as a whole voting ‘for prohibition,’ notwithstanding the county as a whole voted against prohibition. * * Thereafter it shall be unlawful to sell or exchange or give away any intoxicating liquor within the territory included in said prohibition order except as in this law provided.” Section 4929, L. O. L.

If any election shall have resulted in a majority vote for prohibition in any county as a whole, no election shall be held in such county upon that question before the day of the general election following. Section 4931, L. O. L.

“When such second election results against prohibition, the court shall enter an order setting aside the previous order enforcing prohibition.” Section 4932, L. O. L.

“When prohibition has been carried at an election held for the entire county, no election on the question of prohibition shall be thereafter held in any subdivision or precinct thereof until after prohibition has been defeated at a subsequent election for the same purpose, held for the entire county, in- accordance with the provisions of this act; nor in any case where prohibition has carried in any subdivision of any county shall an election on this question of prohibition be held thereafter in any precinct of such subdivision until prohibition has been defeated at a subsequent election held for such entire subdivision.” Section 4933, L. O. L.

It is believed that the foregoing synopsis of, and excerpts from, the local option law, are sufficient to show the general scope and purpose of the act, so far as involved herein. These provisions were rendered applicable to the entire State June 6, 1904, under the initiative power, and by complying with the terms prescribed could be put in force in any designated territory, not exceeding the area of a county: Hall v. Dunn, 52 Or. 475 (97 Pac. 811: 25 L. R. A. [N. S.] 193; Gay v. Eugene, 53 Or. 289 (100 Pac. 306).

1. When such statute is made effective in any incorporated city or town by a majority vote cast at an election regularly held, the power delegated to the municipality to license the sale of intoxicating liquors is suspended: Mayhew v. Eugene, 56 Or. 102 (104 Pac. 727). As that law, after having been put into execution in any designated district, may be rendered inoperative, it necessarily follows that the power of a municipal council to license the sale of intoxicating liquors in any incorporated city or town, when suspended, could be revived by a majority vote regularly cast against prohibition. The charter of Joseph, on November 8, 1910, when Section 2 of Article XI of the Constitution of Oregon was last amended, contained a clause delegating to the council of that city power to license the sale of intoxicating liquors. No amendment of its act of incorporation was therefore necessary, and no alteration thereof was undertaken. An ordinance was enacted, however, January 3, 1911, regulating the manner of licensing the sale of intoxicating liquors in the city, but this ordinance was based upon an express grant of power, theretofore delegated to the council.

2. An examination of Section 2 of Article XI of the organic act, as it existed prior to November 8, 1910, will show that a municipal charter could not be enacted or amended by the legal voters of a city or town, so as to violate the constitution or criminal laws of Oregon: Baxter v. State, 49 Or. 353 (88 Pac. 677: 89 Pac. 369); L. O. L. p. 118. The “criminal laws” thus referred to evidently mean the entire collection of general statutes in force in the State, whether malum in se or malum prohibitum. As all felonies and general misdemeanors are necessarily comprehended in the phrase “criminal laws,” as thus used, it was undoubtedly difficult, without employing many qualifying terms, so to change that clause of the fundamental law as to retain the limitation noted, and yet to render the alteration subservient to the local option law to which no express reference had been made in the first amendment. In formulating the last change in the organic act preparatory to its adoption, it was essential, therefore, to allude particularly to the local option law in order to incorporate its general provisions in the constitution, and in doing so the restriction noted applies only to one criminal law, while the earlier limitation referred to all general statutes of that character. The object of the last amendment was manifestly to forestall any law respecting the sale of intoxicating liquors, the operation of which might be made coextensive with the boundaries of the State, and also to take the limits of a municipality out of a county, or a subdivision thereof or a precinct therein of which it formed a part and yet to make the incorporated city or town subject to the general provisions of the existing local option law. The reference in the first amendment of Section 2 of Article XI of the Constitution to the “criminal laws” of the State, and the allusion in the last alteration of that section to the “local option law,” are not in our opinion so similar in their implication when construed together as to render the latter attempted change nugatory. The various provisions of the altered section should be interpreted in conjunction, and effect should be given to the entire language' employed, if possible, rendering each word operative rather than futile. In discussing this principle a learned author says:

“It is scarcely conceivable that a case can arise where a court would be justified in declaring any portion of a written constitution nugatory because of ambiguity. One part may qualify another so as to restrict its operation, or apply it otherwise than the natural construction would require if it stood by itself; but one part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together.” Cool. Con. Lim. (6 ed.) 72.

3. The local option law, though enacted by the people under the initiative power, is only a statute; and, since the clause of the constitution was amended by an exercise of the same authority, the prior act, like any other law, is necessarily subject to express and implied modification and repeal. It is generally understood that a written constitution affords a guide to legislation, and is therefore of superior authority. Where, however, a reference is made in an organic act to a statute as furnishing a rule of action, what has been regarded as fundamental law is deprived of much of the inviolability usually accorded either to a limitation or a grant of power.

4. Authority to amend the constitution is reserved to the people of Oregon, and this right may be enforced by a vote upon an initiative petition. Section 1, Article IV, and Section 1, Article XVII of the Constitution of Oregon.

5. Under the system now prevailing, a clause of the organic act appears to control only the legislative assembly, since it requires no more effort nor any greater care to amend a clause of the constitution than it does to enact, alter, or repeal a statute, for a majority vote is sufficient to give sanction to a bill, and no greater vote is required to amend the fundamental law. Section 1, Article XVII, of the constitution. The general rule is that a liberal construction should be given to legislative enactments because they are often hastily drawn by persons unskilled in the use of technical legal expressions, are frequently conflicting, and sometimes trench upon clauses of the organic law. A strict construction, however, is usually applied to provisions of a constitution, on the ground that great care has been exercised by experienced persons in framing them. 6 Am. & Eng. Enc. Law (2 ed.) 921; Wolcott v. Wigton, 7 Ind. 44. As a majority vote of the qualified electors by an exercise of the initiative power can enact a statute, they can, by giving such law an appropriate article and section and entitling it an amendment of the constitution, make it a part of the fundamental law and render the supposed stability of the organic act subject to sudden and serious changes. It may well be doubted, therefore, if any alteration in the constitution that has been inaugurated by the initiative should be strictly interpreted.

6. Assuming, without deciding, that the amendment referred to is entitled to no greater respect than an ordinary statute, and should be construed as such with reference to the local option law, the rule is well settled that repeals by implication are not favored, unless the incompatibility between a prior and a subsequent act on the same subject is so apparent that both enactments cannot remain in force, and that, if the latter statute only modifies a prior law, the two must be interpreted as one act: Sandys v. Williams, 46 Or. 327 (80 Pac. 642); Hall v. Dunn, 52 Or. 475 (97 Pac. 811: 25 L. R. A. (N. S.) 193). Based on this rule, the alteration should be construed in connection with the local option law so as to give effect to the former and to interfere as little as possible with the latter,, allowing both to remain operative as far as feasible.

7. It will be remembered that exclusive authority to license, regulate, control, suppress, or prohibit the sale of intoxicating liquors is by the amendment vested in every municipality. The power thus granted to an incorporated city or town, being exclusive, necessarily restrains all subsequent interference with an exercise of the authority to license, regulate, or prohibit the sale of intoxicating liquors for beverage purposes by any voters who reside outside the city limits. The amendment therefore impliedly repeals so much of the local option law as permits “registered voters of any county” to petition for a prohibition election in the entire territory or to vote upon the question when any part of such district is an incorporated city or town, and also so much thereof as declares that the provisions of that law are enforceable in any precinct that “may lie partially within and partially without an incorporated city or town.” Section 4920, L. O. L.

8. The change in the organic act impliedly amends Section 4933, L. O. L., so as to allow an election to be held on the question of prohibition in a ward or precinct of such municipality, notwithstanding prohibition has carried in the entire county, or in a subdivision thereof when the latter district embraces a precinct wholly within an incorporated city or town. The alteration in the fundamental law divorces such municipalities from a county of which they form a part, so that the remainder of the county and incorporated cities and towns therein constitute, in effect, separate political entities with respect to each other (Tabor v. Lander, 94 Ky. 237, 242 [21 S. W. 1056]), in all of which the local option law may be put into operation in the same manner and to the same extent that it was formerly employed in the entire county, in a subdivision thereof, or in a precinct therein.

9. It is believed that the exclusive power to license or prohibit the sale of intoxicating liquors, which purports to be vested in incorporated cities and towns, having been expressly made subject to the provisions of the local option law, the right thus granted to the municipality is necessarily governed by all such provisions so far as applicable requiring for its enforcement in changing an order for or against prohibition that the petition therefor should be presented to the county court, which should order an election to be held to determine the question, notwithstanding the phrase “within the limits” of the municipality is used in the amendment.

In view of this conclusion, it is unnecessary to determine whether or not the last alteration of the organic act is self-executing, in that it does not require any legislation to carry the amendment into effect: Long v. City of Portland, 53 Or. 92 (98 Pac. 149, 1111); Acme Dairy Co. v. Astoria, 49 Or. 520 (90 Pac. 153). A moment’s reflection, however, will show that the fundamental law as changed may be difficult to apply or enforce in precincts situate partially within and partially without an incorporated city or town. Precincts that are entirely within or wholly without such a municipality will not be materially affected by the alteration. If a county could be so divided that all its precincts formed a part of an incorporated town, the amendment of the clause of the constitution would seem practically to disfranchise every legal voter in the county from determining whether or not the sale of intoxicating liquors should be prohibited either in the county or in„ a municipality therein. The same result would necessarily follow as to precincts partially within and partially without a city or town. The county court, it is true, could readjust election precincts, making their boundaries conform to the limits of an incorporated city or town. Section 3304, L. O. L. As no statute exists commanding an establishment of the boundaries of a precinct, it is doubtful if a rearrangement of the limits thereof could well be enforced, and hence it would seem possible for a county court to defeat any attempt to change its order, either for or against prohibition in precincts partially within and partially without a city or town. Notwithstanding the possible consequences suggested, we believe the amendment is valid, and for that reason is susceptible of being enforced under the restrictions indicated.

10. Giving to each word of the last amendment the importance to which it is entitled, it will be seen that, while the legal voters of every city and town are authorized to license or prohibit the sale of intoxicating liquors therein, the clause, “but such municipality shall within its limits be subject to the provisions of the local option law of the state,” is a limitation upon the power delegated whereby it can be exercised only in the manner prescribed in the law referred to. The word “exclusive”, as thus used, when limited, as it is, by the clause referred to, is not in our opinion entitled to the force and importance usually given to that adjective. As such restriction contains no exception, we are of the opinion that an employment of the power conferred is subject to all the consequences that may have resulted from an adoption of the local option law, so that an order of prohibition, made in the county as a whole, cannot be modified or vacated except by a subsequent vote of the qualified electors of the incorporated city or town cast against prohibition at an election regularly called for that purpose in the municipality.

No election of that kind having been held in the city of Joseph, the license issued to defendant is invalid, and hence the judgment is affirmed. Affirmed.