17 Or. 622 | Or. | 1889
The appellant herein was tried and convicted in the recorder's court of Milton City, county of Umatilla, Oregon, for an alleged violation of a city ordinance of said city.
The complaint under which he was convicted contained the following charge, in substance: “That the appellant did sell, dispose of, and convey to one L. B. Banks one bottle of whisky of a less quantity than one quart. The said selling, disposing, and conveying being and is contrary to the force and effect of section 8, ordinance numbered 3, of said Milton City, entitled ‘An ordinance to regulate and license the sale of spirituous and malt liquors,' said ordinance being approved by the board of trustees of said Milton City on the tenth day of January, A. D. 1888. All of which is contrary to the peace and dignity of the people of Milton, and contrary to the ordinance in such case made and provided."
,A. complaint in-such a case must sqt oiut.tbe fucts.constituting the offense as fully and completely as they are .required to ;b.e set out in .an indictment for a similar •offense against the state. It must .show-that the party .-accused committed ,t!he acts .which the ordinance prohibited. It should have shown in this case, not only that the appellant sold the whisky, hut that he.did so .without having first - obtained a license agreeably to the ■provisons of the ordinance,, apd the time, pf the passage of the ordinance, and the provisions of it shpujd have 'been recited in th.e complaint. The ordinance also has tobe proved where the commission of-the. offense .is defied by a plea of not .guilty, It must be signed by the mayor, after being passed by the hoard, qr.iii case qf his absence from the meeting at which it was passed, then
Whether an appeal will lie from such a judgment of conviction as the one herein depends upon the charter of the city. We have already passed upon that question at this term of court, in Barton v. City of La Grande. I have examined this charter, and am hot able to find any provision therein which authorizes an appeal in such a case. A writ of review, therefore, was the only remedy the appellant was entitled to invoke, and the circuit court should have sustained the one issued in this case. The circuit court, however, seems to have been misled by a former decision of this court, which is referred to and explained in Barton v. City of La Grande, and to have been under the impression that our holding in the former case-was different from what we intended.
The decision of the circuit, court must be reversed, and the case remanded to that court, with directions to reverse the judgment of conviction rendered by the recorder’s court, which was- sought to be reviewed, and the appellant will be entitled to his costs and disbursements herein.