City of Astoria v. Malone

• Decision Date: 08 January 1918
• Parties: CITY OF ASTORIA v. MALONE.
• Court: Oregon Supreme Court

169 P. 749

87 Or. 88

CITY OF ASTORIA v. MALONE.

Supreme Court of Oregon

January 8, 1918

In Banc.

Appeal from Circuit Court, Clatsop County; J. A. Eakin, Judge.

Walter Malone was adjudged guilty of the violation of a city ordinance, and appeals. Reversed and remanded.

The defendant was accused by a verified complaint filed in the police court of the city of Astoria of violating the provisions of Ordinance No. 5025 of that municipality, which offense was alleged to have been committed as follows:

"That said Walter Malone, within the corporate limits of the city of Astoria, Clatsop county, state of Oregon, on the 26th day of August, 1917, then and there being, did have unlawfully in his possession intoxicating liquors, to wit beer and wine, contrary to the ordinance in such case made and provided, and against the peace and good order of the said city of Astoria."

A demurrer to the charge, on the grounds that it did not state facts sufficient to constitute a crime or show an infringement of the designated ordinance, was overruled, and the defendant declining further to plead or offer any evidence was found guilty and appealed from the resulting judgment to the circuit court for that county where the cause was tried, and when the testimony for the prosecution was received the defendant, without offering any evidence, moved for a directed verdict in his favor, but the motion was denied, and having again been found guilty, he appeals to this court from the judgment which followed.

Norblad & Hesse, of Astoria, for appellant. Olof Anderson, City Atty., and O. B. Setters, both of Astoria, for respondent.

MOORE J. (after stating the facts as above).

It is insisted that the judgment rendered herein should be affirmed because the defendant's counsel moved for a directed verdict in favor of their client instead of a verdict of not guilty. The court undoubtedly understood the purport of the motion, which application was not denied by reason of any indefiniteness therein as to the meaning intended to be conveyed. The point contended for is without merit.

This action was founded upon section 5 of the ordinance mentioned which provision reads:

"It shall be unlawful for any person, persons, firm company or corporation to have in his, her, their or its possession within the corporate limits of the city of Astoria, any intoxicating liquor not permitted by the general laws of the state of Oregon."

It will be noted that the accusation herein omits the language "not permitted by the general laws of the state of Oregon," as set forth in the section quoted. Though a clause of the Constitution of Oregon, which became operative January 1, 1916, prohibits the manufacture or sale within this state of intoxicating liquors, except for medicinal scientific, sacramental, or mechanical purposes (Gen. Laws Or. 1915, p. 12), and another provision of the organic law inhibits the importation of such liquors for beverage purposes (Gen. Laws Or. 1917, p. 8), it is not violative of any enactment for a person to have in his possession intoxicating liquors which were lawfully procured and in his custody within this state, February 2, 1917, when section 5 of chapter 141, Gen. Laws 1915, was amended (chapter 40, Gen. Laws Or. 1917). Thus, if the wine and beer charged to have been in the defendant's possession were secured by him on or prior to February 2, 1917, and he was then in custody thereof within this state, no crime was committed by having possession of such beverages. This is the only instance in which the possession of beer could legally have been secured or held at the time alleged in the complaint.

"It shall be lawful for any priest or minister of any church or religious congregation in this state using wine in administering the sacrament to receive from any common carrier such reasonable quantity of wine as may be necessary for sacramental purposes only, to be imported into this state under permit of the district attorney for the county in which such church or congregation holds its meetings." Section 12(b), c. 141, Laws 1915, as amended by section 3, chapter 40, Gen. Laws Or. 1917.

If, therefore, the defendant was a priest or minister as thus described, or a common carrier who had imported for such clergyman wine pursuant to a permit regularly issued therefor, no crime was committed in having possession within this state of any reasonable quantity of wine for sacramental purposes.

Ethyl alcohol may also be legally imported, kept, sold, and delivered for medicinal, scientific, or mechanical purposes within Oregon. Gen. Laws 1915, p. 12; section 6, chapter 141, Gen. Laws 1915, as amended by chapter 40, Gen. Laws 1917. As neither wine nor beer comes within that class of intoxicating liquor, it is unnecessary to refer to the instances in which the possession of such alcohol can legally be held. It is contended that the complaint herein does not state facts sufficient to constitute a crime, or to show a violation of the provisions of Ordinance No. 5025, in that the accusation does not negative these exceptions to the general prohibition law, by alleging that not having in his possession within this state on February 2, 1917, any alcoholic stimulants, nor then being a priest or minister of any church or religious congregation in Oregon, using wine in the administration of the sacrament, nor a common carrier importing into this state under permit of the district attorney of the county in which such church or congregation holds its meetings, any wine the defendant at, etc., on, etc., did unlawfully have in his possession intoxicating liquors, to wit, beer and wine, contrary, etc.

In State v. Tamler, 19 Or. 528, 530, 25 P. 71, 72 (9 L. R. A. 853), in speaking of an accusation charging a violation of the provisions of a statute creating a misdemeanor and containing excepted clauses, Mr. Justice Bean remarks:

"The general rule on this subject is that where the exception or proviso is stated in the enacting clause, it is necessary to negative them in order that the description of the offense may in all respects correspond with the statute; but where such exception or proviso is contained in another or subsequent section of the statute, it is a matter of defense and need not be negatived in the indictment."

To the same effect see Binhoff v. State, 49 Or. 419, 90 P. 586; State v. Carmody, 50 Or. 1, 91 P. 446, 1081, 12 L. R. A. (N. S.) 828; State v. Eisen, 53 Or. 297, 99 P. 282, 100 P. 257; State v. Atwood, 54 Or. 526, 102 P. 295, 104 P. 195, 21 Ann. Cas. 516; State v. Edmunds, 55 Or. 236, 104 P. 430; State v. Runyon, 62 Or. 246, 124 P. 259; State v. Sommer, 71 Or. 206, 142 P. 759; State v. Aplin, 81 Or. 621, 160 P. 538. See, also, 12 Stand. Ency. Proced. 458; United States v. Cook, 17 Wall. (84 U. S.) 168, 21 L.Ed. 538.

The term "enacting clause," as used in the language last quoted, seems to have caused some misapprehension of the meaning intended to be conveyed. Such phrase generally relates to a requirement in a constitution or a municipal charter demanding the use of a designated clause so as to give vitality to a statute or an ordinance, without the employment of which such enactments are usually regarded as inefficacious. 26 Am. & Enc. Law (2d Ed.) 560; 36 Cyc. 967. In commenting upon the parts of a legislative enactment, a text-writer observes:

"A statute has, or may have, a title, preamble, and purview. The purview is what follows, 'Be it enacted,' etc., and includes the entire statute, except the title and preamble." 2 Bishop's New Crim. Pro. § 634.

It will thus be observed that what is generally designated as the "enacting clause" of a statute is occasionally called the "preamble"; while a section of a statute denouncing an offense is sometimes spoken of as the "enacting clause." State v. Runyon, 62 Or. 246, 124 P. 259.

Police courts in Oregon usually possess the same authority to hear and determine cases as justice's courts, and have concurrent jurisdiction with the circuit court of most violations of the provisions of the prohibitory laws. Section 32, chapter 141, Gen. Laws Or. 1915. In the prosecution of actions founded upon that statute--

"it shall not be necessary in the first instance, for the state to allege or prove that the party

...