Baxter v. State

88 P. 677 | Or. | 1907

Lead Opinion

Mr. Justice Bakin

delivered tbe opinion, of tbe court.

Two principal questions are involved herein on this appeal, viz.: (1) Where the question of prohibition in a county as a whole was submitted to the voters, is the law valid and constitutional wherein it authorizes the county court to issue an order of prohibition for a precinct in the county so voting for prohibition, notwithstanding the county as a whole voted against prohibition? And (2) if so, does Section 2 of Article XI of the constitution as amended authorize a city within such precinct to so amend its charter as to avoid the prohibition order of the county court?

1. Section 10 of the local option law (Laws 1905, p. 47) •provides, among other things:

“A petition for an election in any county * * shall be considered as and shall have the effect of a petition for an election in each individual precinct in such county * * and the county court shall issue an order of prohibition for each and every precinct in the county voting ‘For Prohibition,’ notwithstanding the county as a whole * * voted ‘Against Prohibition.’ ”

The effect of this language is that the vote in each precinct, even on a vote cast for the county as a whole, shall stand as an independent vote for that precinct for prohibition therein, as well as a part of the county vote on prohibition in the county as a whole. In Smith v. Patton, 20 Ky. Law Eep. 165 (45 S. W. 450), it was objected that the ballot did not propound to the voter the question whether druggists should be licensed to sell liquors or not, and the court holds that the requirements of the statute had been complied with, and that “the voters must be presumed to have known what they were voting for.” And, being a provision of the law itself, the vote is deemed to be east with reference thereto, as though mentioned on the ballot separately, and is presumed to be in contemplation of the voter when he casts his vote. The law is valid and constitutional in authorizing such a prohibition order by the county court.

2. The amendment of Section 2 of Article XI of the constitution, adopted in June, 19(f6, pkb'viiTes:

“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.”

The appellant insists that by this amendment the city can enact or so amend its own charter as to exempt the city from the terms of the local option law, claiming that the local option law does not create a crime within the meaning of the amendment. The amendment does not affect the right of the legislature or of the people by the initiative to enact any law they deem proper affecting the criminal laws of the state, and changes therein and new criminal laws will apply to the cities regardless of their charters; and the question is whether the local option law is a criminal law within the meaning of this amendment to the constitution. For the purpose of this decision we assume, without deciding, that the amendment of Section 2 of Article XI of the constitution is self-executing, as that question was not raised in this court. Section 1228, B. & C. Comp., defines a crime, and it includes both felonies and misdemeanors, and any offense, either felony or misdemeanor, defined and made punishable by general statute, is one to which the municipal charters are subject. In Portland v. Erickson, 39 Or. 6 (62 Pac. 753), it is held in effect that where, under a statute or ordinance, the enforcement of which is provided for by complaint and warrant and where the punishment provided may be fine or imprisonment, or imprisonment aside from the pecuniary penalty, such a proceeding is so far criminal in its nature, and a violation of the statute is such an offense, that .it is within the terms of Sections 11 and 12 of Article.I.of the constitution. And the only additional requisite, under Section 2 of Article XI, is that it be a general law of the state.

But the appellant insists that the local option law is of only local operation, and not general,-and for that reason cannot be deemed criminal within, the meaning of the constitution. The law purports to be a general law and took effect upon the proclamation of the 6overnor,--and only Its applicationdn a particular locality is made to depend upon the vote of that locality; and thus it is a uniform law throughout the state. In Elliott on the Elements of Municipal Corporations, § 60, referring to local option laws, it is said: “If the law is complete when it comes from the hands of the legislature, it is a general law operative throughout the state.” To the same effect are State v. Pond, 93 Mo. 606 (6 S. W. 469), and Paul v. Gloucester County, 50 N. J. Law, 585, 607 (15 Atl. 272: 1 L. R. A. 86). In Fouts v. Hood River, 46 Or. 492 (81 Pac. 370: 1 L. R. A., N. S., 483), it is held that “the crime of misdemeanor prescribed or created for a violation of the prohibition order is alike and uniform all over the state.” And it is clearly a general law of the state, and comes within the exception in the amendment of Section 2 of Article XI of the constitution, and controls in cities in which it is made applicable by vote.

3. The appellant also insists that, the precinct being larger than the city limits, a few country votes may control the city on the question of prohibition, and thus affect matters of taxation within the city by depriving it of a business that might produce large revenue. But this argument has no greater force in the case of a precinct than in the ease of a county as a whole. In Smith v. Patton, 20 Ky. Law Rep. 165 (45 S. W. 450), where it was objected that the City of Somerset should not be bound by the votes of the county outside its territorial limits, the court holds otherwise; and to the same effect, also, are Cole v. Commonwealth, 101 Ky. 151 (39 S. W. 1029); Tatum v. State of Georgia, 79 Ga. 176 (3 S. E. 907), and Garrett Blanks v. Mayor, 47 La. Ann. 618 (17 South. 238). And the state, a count3r, or a part of a county, may prohibit such business within its territory, and a city has no ground of complaint.

4. It is also claimed by the appellant that the application of the local option law in any locality is a suspension of the city charter relating to the licensing of the sale of intoxicating liquors, in violation of Section 2 of Article XI of the constitution; hut in Sandys v. Williams, 46 Or. 327, 332 (80 Pac. 642), it is held that the local option law is a new statute relating to intoxicating liquors, and “was not intended as a substitute for the earlier law, but only as a modification thereof when its provisions become applicable to a specified district.” In' other words, the city charter and the local option law must be read together. Subdivision 7 of Section 2 of Article IY of the city charter now has one proviso, viz., that no license for the sale of spirituous liquors shall be granted by the common council for a less sum than $600 per annum, and it should not be read as though it had another jmovíso, viz., that no license for the sale of spirituous, malt or vinous liquors for beverage purposes shall be granted in cases where an order of prohibition has been issued for that locality by the county court pursuant to the provisions of the local option law. If prohibition is not adopted in that locality or precinct, then the charter controls in matters of licensing saloons, and if prohibition is in force in the locality under the local option law, then no license can issue while so in force. By Section 12 of the local option law it is provided that, if the result of the vote in any precinct is for prohibition, no election thereunder shall be held within such prohibited district (except as to the county as a whole) before the first Monday in June of the second calendar year 'thereafter. In other words, that vote is final in the territory affected thereby, and cannot be changed, except by another election under the local option law, and this constitutes a limitation upon the city charter and the powers of the city within such territory. But, say the court in Sandys v. Williams, "a majority vote for prohibition * * under the local option law is tantamount to a remonstrance against the granting of a license by the county court, thereby preventing the sale of intoxicating liquors in any precinct in the designated district until the vote has been regularly changed at a subsequent election, so as to be against prohibition. * * The refusal of a license in an incorporated town or city, in pursuance of a majority vote for prohibition, under the provisions of the local option law, is a modification of the prior acts generally applicable to municipal colorations.” And this applies equally to charters- amended under Section 2 of Article XI of the constitution, and therefore does not authorize a 'city to so amend its charter as to avoid the prohibition of the county court authorized by the local option law.

There being no error in the proceedings of the lower court, the judgment is affirmed. Affirmed.

---

Rehearing

Decided 26 March, 1907.

On Motion ror Rehearing.

Mr. Justice Eaicln

delivered the opinion of the court.

5. Attorneys for the plaintiff have filed a motion for a rehearing in this case, claiming that contentions of the plaintiff have been overlooked by the court; for instance; that “the local option law does not, as it stands, authorize a county court to issue an order of prohibition for a precinct when there has been no separate 'vote upon precinct prohibition and the county as a whole has voted hvet/ ”

Section 8 of the act (Laws 1905, pp. 41, 45) provides what the ballot shall contain, as follows:

“For said election it shall be the duty of the county clerk or the proper city authority, as provided in Section 3 of this act, to arrange the ballots and have them printed in substantially the following form:

Ballot for —-precinct,-county (date of election).

1. Vote for or against prohibition of the sale of intoxicating liquors for beverage purposes, for entire county of -. Mark X between number and answer voted for.

12 For Prohibition.

13 Against Prohibition.

If an election has been called for the entire county and for no subdivisions thereof, then this form shall be substantially used for each precinct.

2. If an election has been called for a subdivision or subdivisions as well as for the entire county, then the words Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for the entire county of - and for subdivision of - country, consisting of precincts numbered (or named) -/ shall be substituted in the form for the words, Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for the entire county of -/ for those precincts situated within the respective subdivisions. 3. If no election shall have been called for the entire county and only for subdivisions thereof, then the words Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for subdivision of-county consisting of precincts numbered (or named) -/ shall be substituted in the form for the words, Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for entire county of -=-/ for the precincts within the respective subdivisions.

4. If no election shall be called for the entire county, then for those precincts desiring to vote on the question and not included in any subdivision, the words, Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for -precinct only of- county/ shall be substituted in the form for the words, Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for entire county of-/ ”

This section defines and prescribes the form of ballot, and no other is permissible. The clerk, therefore, cannot, on either of the first two forms, arrange for a separate vote as to an- individual precinct contained in such territory. Where the ballot provides for a vote as to the county as a whole, it may also, as part of the same form or item, provide for a vote as to a subdivision of the county composed of more than one precinct, but not, as to a separate precinct, and in such a ease only one answer or vote is permissible as to the whole question 'or item. For instance, the form will be:

'Note for or against prohibition of the sale of intoxicating liquors for beverage purposes for the entire County of Coos and for subdivision of Coos County, consisting of precincts named West Coquille and Bandon. - Mark X between number and answer voted for.

12 For Prohibition.

13 Against Prohibition.”

If no election shall have been called for the entire county and only for a subdivision thereof, the form of ballot cannot provide for a separate vote as to a particular precinct included in such subdivision (but provision may be made on the ballot for a vote as to a precinct not included in such subdivision, if an election has been ordered for such precinct). When either of the first two forms of ballot is used, no precinct included in such territory can have a separate vote upon precinct prohibition, but each precinct in its own territory is considered as though named on the ballot, and one vote or answer applies to both the county and the precinct, as is expressly the case under the second form of ballot for the county and a subdivision. This is clearly shown by Section 10 of the act, which declares the effect of the vote and prescribes the duty of the county court in reference thereto. It provides:

“If a majority of the votes hereon in the county as a whole, or in any subdivisions of the county as a whole, or in any precinct of the county, are ‘For Prohibition/ said court shall immediately make an order * * prohibiting the sale.”

This provision has reference to the result of the vote as to the territory expressly mentioned in the ballot. Thereafter this same section declares:

“A petition for an election in any county or subdivision thereof shall be considered as and shall have the effect of a ]:etition for an election in each individual precinct in such county or subdivision thereof, and the county court shall issue an order of prohibition for each and every precinct in the county voting ‘For Prohibition/ notwithstanding the county as a whole and the subdivision (if any) as a whole voted ‘Against Prohibition.’ ”

This clause provides expressly for the prohibition order in precincts in which there can be no separate vote on precinct prohibition, and the act is not inconsistent in that it does not provide for a license within precincts voting against prohibition when the county as a whole voted for prohibition. Where prohibition is adopted by the county as a whole, it is the adoption of a policy of county government, and as such must be applied to the entire county, even though a precinct therein votes against it; but where a county as a whole votes against prohibition, it has thereby adopted no measure or policy for the county by its vote; it has only said that it will not adopt prohibition for the County as a whole; and, if a precinct in such case does adopt prohibition, it will not be in conflict or inconsistent with the county vote.

The petition is denied. Aeeirmed : Rehearing Denied.