115 P. 1066 | Or. | 1911
Lead Opinion
delivered the opinion of the court.
It is maintained that the amendment referred to impliedly repealed that part of the local option law which made an entire county the maximum limit of prohibition, thereby excluding from such territory all incorporated cities and towns therein, and that as the alteration in the constitution contained no provision whereby violations of the prohibition law committed within the limits of such municipality prior to the adoption of the amendment were saved from the effect thereof, errors were committed in refusing to direct a verdict of not guilty and in giving the judgment, which is brought up for
“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 parts included within parenthesis as above noted were added pursuant to an exercise of the initiative power.
In support of the principle asserted by defendant’s counsel, he calls attention in his brief to the doctrine announced in Texas, which seems to sustain his view. In that State under a local option law somewhat similar in its provisions to the Oregon statute on that subject, it was held that after the sale of intoxicating liquors had been prohibited pursuant to an election in any specified district, a majority vote of the qualified electors of the territory cast at a subsequent election repealed the local option law in the district, and, as such enactment contained no saving clause, violations of its provisions committed prior to the change of the order of prohibition could not be thereafter punished. Halfin v. State, 5 Tex. App. 212; Wisenhunt v. State, 18 Tex. App. 491; Woodlief v. State, 21 Tex. App. 412 (2 S. W. 812).
Defendant’s counsel assigns various reasons illustrating his theory of the case, but, as most of these questions were determined in the case of State v. Schuler, 59 Or. 18, (115 Pac. 1057), and others are deemed immaterial, the judgment is affirmed. Affirmed.
Rehearing
Decided July 11, 1911.
On Petition for Rehearing.
[117 Pac. 412.]
delivered the opinion of the court.
In a petition for a rehearing, it is insisted by defendant’s counsel that affirming the judgment rendered in this cause is tantamount to judicial legislation, in that the opinion announced herein attempts to give to the words used in the amendment of Section 2 of Article XI of the Constitution an unusual meaning, which is unwarranted by, and cannot be gathered from, the context; and that in construing a clause of an organic act a court has no right to disregard the meaning of plain and unambiguous language, under the guise of discovering the intent of electors in adopting a clause of fundamental law, or to give an interpretation in such a case that does violence to the ordinary meaning of the words employed.
In a brief submitted by counsel, who appears as amicus curiae, it is asserted that the people of Oregon cannot, by an amendment of the constitution, deprive the State of exclusive authority over, and control of, the liquor traffic and confer such power upon an incorporated city or town, and in support of the doctrine thus announced attention
The word “exclusive,” as used in the amended section of the fundamental law, when construed in connection with the entire language there employed, evidently means that an incorporated city or town shall, until otherwise ordered, be the sole agent of the State in exercising the police power respecting the control and sale of intoxicating liquors. The further clause, “but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon,” prescribes the manner of employing the power delegated, which enactment is a limitation upon an exercise of the authority. Such provision of the constitution is not subject to the criticism indulged in Straw v. Harris, 54 Or. 424 (103 Pac. 777). The case at bar does not involve the interpretation of a statute, but the construction of a clause of the constitution, the amendment of which does not trench upon a republican form of government, which is guaranteed (Section 4, Article IV, of the Constitution of the United States), nor does it encroach upon the limitations imposed by the federal constitution upon the powers of the states. Section 9, Article I, Constitution of the United States.
We conclude, therefore, that the people of Oregon could lawfully delegate to an incorporated city or town the “exclusive” power to license, tax, regulate, restrain, or prohibit the sale of intoxicating liquors, for beverage purposes, within its territorial limits.
An examination of the opinion announced in this cause and of the majority opinion in State v. Schuler, 59 Or. 18, (115 Pac. 1057), upon the authority of which the decision herein is based, will show that no attempt was made to
Believing that the determination reached by the majority of the court is warranted by an interpretation of the clause of the constitution, the petition is denied.
Affirmed: Rehearing Denied.