Club v. City of Woodburn

119 P. 339 | Or. | 1911

Mr. Justice McBride

delivered the opinion of the court.

1. Previous to November, 1909, the sale of intoxicating liquors was licensed in the city of Woodburn. At the election then occurring the city in common parlance voted “dry,” and thereafter such sales were prohibited. Existing licenses expired in January, 1910, and coincidently with their expiration a number of citizens were suddenly seized with a desire to improve their social and mental condition by means of a social club, and the “Bachelors’ Club” was incorporated, ostensibly for that purpose. Whether or not its membership was confined to unmarried men, as the name would seem to indicate, the club became at once an exceedingly popular institution and soon attained a membership of about 80 persons. The method of initiation was simple. • A person desiring membership signed an application blank, and his qualifications were passed upon by the trustees, and if found worthy he paid a fee of $6 and was admitted}. Of this amount $1 was for membership and the other $5 was for a book of coupons, entitling the holder to receive a certain quantity of any refreshments the club might have in stock. A room on the ground floor of a building formerly used as a saloon was rented, a bar established, and stewards provided, and last but not least, a stock of liquors, cigars, and soft drinks laid in for the comfort and delectatio'n of the members. The club secured a United States’ internal revenue license for, the sale of liquors and proceeded to furnish its members with liquors, cigars, and other refreshments, when called for. There is no evidence that the club ever did anything toward the moral or mental improvement of its members, beyond furnishing them liquors, cigars, and soft drinks in exchange for coupons, and we conclude from the testimony that the principal object of the corporation was the disposal of liquors to its members. It is claimed that the provision of the charter authorizing the council to license and regulate the sale or disposal of intoxicating liquors does not include the power to prohibit their sale. Whether this is correct or not is of no moment in this case, as the council has not attempted by this ordinance to prohibit the sale of liquors in Woodburn, but has confined the right to make such sales to registered pharmacists and upon a bona fide prescription for disease. This is not prohibition, but regulation. Taking this in connection with the plenary power granted the council, by section 5, supra, to pass and enact such ordinances as it shall deem expedient to suppress intemperance, we are of the opinion that the ordinance is valid.

2. The contention that these sales were not sales of liquors, but that it was the property of the members of the club, cannot be sustained. The club is a corporation and is itself an artificial person and, as such, owns the liquors purchased by it. The act of taking a member’s money in gross, and allowing him to spend it for liquors in detail as his appetite may require, does not alter the fact that in its ultimate analysis the transaction is a sale; nor does the fact that no profit is made by the transaction alter its nature. It is not a defense to a charge of unlawful disposal of liquor for the seller to show that he sold it for less than it cost him.

3. Ordinance No. 307 is not void. A house where the unlawful sale or disposition of intoxicating liquor is carried on is a disorderly house. People v. Clark, 1 Wheel. Cr. C. (N. Y.) 288; Cheek v. Commonwealth, 79 Ky. 359.

4. Ordinance No. 309 is void. The right of the citizen to be protected against unreasonable search and seizure is a very valuable one, and we have been cited to no provision of the charter of Woodburn that confers upon the municipality the right to exercise this high prerogative. Ordinance No. 300 is confessedly void, both for want of authority in the charter to enact it, and because it interferes with interstate commerce. It does not appear, however, that any attempt has been made to enforce it, and we are not, therefore, required to make any order in relation to it.

The decree of the circuit court enjoining prosecution under ordinances 287 and 307 is reversed, but the decree will stand as to No. 309. The appellant will recover costs and disbursements in this court, and neither party will recover costs and disbursements in the circuit court.

Modified.