State v. Silko

538 P.2d 76, 22 Or. App. 124, 1975 Ore. App. LEXIS 1153

• Court: Court of Appeals of Oregon
• Decided: July 14, 1975
• Docket: No. 74-1337-C-1
• Status: Published

Opinion

THORNTON, J.

Defendant appeals from a conviction for illegal transportation of alcoholic liquor. ORS 471.405(2).

① Her sole assignment of error is that the circuit court erred in overruling her demurrer to the complaint.

Defendant was first tried and convicted in district court and appealed her conviction to the circuit court. At both levels she demurred to the complaint on the ground that the statute is an unconstitutional violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Art I, § 1, of the Bill of Bights of the Oregon Constitution.②

Defendant argues that the state cannot prevent persons from bringing into the state alcoholic liquor purchased elsewhere so long as such possession is intended for personal consumption and not for resale.

We cannot accept defendant’s argument. The Twenty-first Amendment to the United States Constitution allows the states broad regulatory power over liquor traffic within their boundaries. Seagram & Sons v. Hostetter, 384 US 35, 86 S Ct 1254, 16 L Ed 2d 336 (1966). Indeed, a state may absolutely prohibit the manufacture, sale, possession or transportation of alcoholic liquor, and may adopt measures reasonably appropriate to effectuate such prohibition. Ziffrin, Inc. v. Reeves, 308 US 132, 60 S Ct 163, 84 L Ed 128 (1939). It follows that if a state may prohibit entirely the sale, possession, manufacture or transportation of alcoholic liquor, it may permit these things under definitely prescribed conditions. Ziffrin, Inc. v. Reeves, supra; cf., State v. Raper, 174 Or 252, 149 P2d 165 (1944); Battle Creek Golf Course v. OLCC, 21 Or App 179, 534 P2d 204 (1975).

We interpret defendant’s claim that OBS 471.405 violates the Due Process Clause of the Fourteenth Amendment as referring to substantive, rather than procedural, due process. This claim cannot be sustained. As Prof. Hans Linde points out in his article Without “Due Process,” 49 Or L Bev 125 (1970), the United States Supreme Court, since Nebbia v. New York, 291 US 502, 54 S Ct 505, 78 L Ed 940 (1934), has consistently rejected challenges that a particular state or municipal regulatory policy deprives the complainant of substantive due process guaranteed by the Fourteenth Amendment, unless grounded on a right protected by another amendment such as the First, Fourth or Fifth. No such argument is made here.

We conclude that limiting the possession or transportation of alcoholic liquor within the state to liquor procured from or through the Oregon Liquor Control Commission is within the state’s authority to regulate alcoholic liquor within its boundaries.

Affirmed.

ORS 471.405(2) provides:

“No person shall purchase, possess, transport or import, except for sacramental purposes, alcoholic liquor unless it is procured from or through the commission, except as provided otherwise in the Liquor Control Act.”

Defendant, a Washington resident, does not contend that the application of ORS 471.405(2) is unconstitutional to her based on the theory that Oregon cannot prohibit the shipment of intoxicants through the state for consumption elsewhere.