City of Klamath Falls v. Oregon Liquor Control Commission

• Decision Date: 13 February 1934
• Citation: 29 P.2d 564,146 Or. 83
• Parties: CITY OF KLAMATH FALLS v. OREGON LIQUOR CONTROL COMMISSION et al.
• Court: Oregon Supreme Court

29 P.2d 564

146 Or. 83

CITY OF KLAMATH FALLS v. OREGON LIQUOR CONTROL COMMISSION et al.

Supreme Court of Oregon

February 13, 1934

In Banc.

Appeal from Circuit Court, Marion County; L. G. Lewelling, Judge.

Suit by the City of Klamath Falls, a municipal corporation, against the Oregon Liquor Control Commission and members thereof. From a decree dismissing plaintiff's complaint, plaintiff appeals.

Affirmed.

Elton Watkins, of Portland (A. L. Leavitt, of Klamath Falls, on the brief), for appellant.

George Neuner and Jay Bowerman, both of Portland, for respondents.

BELT Justice.

This is a suit to enjoin the defendant officials from enforcing chapter 17, Laws of Oregon for 1933 (2d Sp. Sess.), known as the "Oregon Liquor Control Act," on the ground that it is unconstitutional. The circuit court sustained a general demurrer to the complaint, and, upon refusal of the plaintiff to plead further, dismissed the suit. Plaintiff appeals.

It appears from the allegations of the complaint that the city of Klamath Falls, prior to the above legislative act, enacted an ordinance purporting to regulate, license, and control the sale, buying, and transportation of alcoholic liquors within its corporate limits. Such ordinance is in direct conflict with the Oregon Liquor Control Act which purports to vest exclusive authority upon a commission to control and regulate the sale of alcoholic beverages throughout the state. Thus the question is presented: Is the ordinance of the city of Klamath Falls supreme, or is it subordinate to the general law of the state?

The principal contention of the city is that the Oregon Liquor Control Act contravenes article 11, section 2, of the Oregon Constitution, which provides as follows:

"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."

The city urges that, under and by virtue of the above constitutional provision, generally referred to as the "Home Rule Amendment," it has "exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors" within its boundaries.

Defendants assert that the above constitutional provision, so far as it purports to delegate authority to municipalities to control and regulate the sale of alcoholic beverages, has been impliedly repealed by article 1, section 36, of the Oregon Constitution, initiated by the people on November 3, 1914 which provides:

"From and after January 1, 1916, no intoxicating liquors shall be manufactured, or sold within this state, except for medicinal purposes upon prescription of a licensed physician, or for scientific, sacramental or mechanical purposes.

"This section is self-executing, and all provisions of the constitution and laws of this state and of the charters and ordinances of all cities, towns and other municipalities therein, in conflict with the provisions of this section are hereby repealed."

And by article 1, § 36a, of the Oregon Constitution, adopted November 7, 1916, which reads:

"No intoxicating liquors shall be imported into this state for beverage purposes.

"This section is self-executing, and all provisions of the constitution and laws of this state and of the charters and ordinances of all cities, towns and other municipalities therein, in conflict with the provisions of this section, are hereby repealed."

Defendants further contend that, assuming article 11, section 2, of the Constitution has not been repealed, the city of Klamath Falls is nevertheless "subject to the constitution and criminal laws of the state of Oregon" and that the Oregon Liquor Control Act is a criminal law.

Article 11, section 2, of the Constitution, or the Home Rule Amendment, has many times been before this court for construction and interpretation. It is fundamental, whether in the construction of a statute or a constitutional provision, that the guiding star of the court should be the intention of the lawmaker. All other rules of construction are subordinate. To ascertain and give effect to the intent of the framers of the constitutional amendment and of the people who adopted it, as well as to those amendments alleged to be in conflict therewith, the court should constantly keep in mind the object sought to be accomplished and the evils, if any, sought to be remedied. We may well, therefore, turn to the legislative history of the Home Rule Amendment upon which plaintiff relies.

The control and regulation of alcoholic beverages always has been and no doubt ever will be a vexatious question, so long as mortal man is prone to err. It is a social problem which has long been before the people for solution. Like Banquo's ghost, it will not down. Article 11, section 2, as adopted by the people in June, 1906, was as follows:

"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."

At the same election, article 4, section 1a, of the Constitution was adopted, conferring upon the people the power to initiate laws and to refer acts of the Legislature to a vote of the people for their approval or rejection. The initiative and referendum powers were also reserved to the legal voters of every municipality "as to all local, special, and municipal legislation." In 1910, article 11, section 2, was amended by adding the following provision:

"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."

At the time of the constitutional amendment in 1910, the local option liquor law had been in effect for a period of about four years. Under the operation of this law chaos arose. Often there was a conflict of opinion between urban and rural communities as to the method of dealing with the liquor problem. Indeed, even in the same municipality, the territory was "dry" or "wet" dependent upon the boundary of the election precinct. No doubt, dissatisfaction on the part of people residing in municipalities relative to the operation of the local option law led to the proposed constitutional amendment in 1910. As to what was in the minds of the people in 1910 when this amendment was submitted, some light on the question is reflected in the official Voters' Pamphlet mailed to each voter for his guidance. The amendment giving "exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquor" was construed by those who favored the amendment to mean:

"It means home rule for cities in the control or suppression of the liquor traffic. In all other respects the amendment is identical with the present Constitution, as every city in the State now has absolute self-government on all other questions, subject to the criminal laws of the State, and this condition will not be changed by the proposed amendment."

"It will prevent the combining of outside precincts and districts in one local option district, to the injury of a city situated there."

Turning to the argument of the "Oregon Dry Campaign Committee" as published in the official pamphlet, relative to the proposed amendment, we find:

"The Home Rule Amendment', so called, is un-American. The State is the unit. Our cities must not be permitted to set up separate principalities in absolute independence of our State laws, particularly the criminal laws. A vice which shocks the sentiment of mankind or endangers public welfare sufficiently to be prohibited by State laws, cannot be permitted in our municipalities without overriding the laws of the commonwealth, undermining the supremacy of the State and introducing the worst form of minority rule, vicious and anarchistic in all its tendencies."

In both these arguments there was the pre-dominating idea that the power delegated to municipalities under this proposed constitutional amendment was still subject to the Constitution and the criminal laws of the state and that there would not be a complete surrender of the sovereign power.

The adoption of the amendment, however, did not settle the question. The conflict continued between the different units of government relative to control of the liquor traffic. See State v. Schluer, 59 Or. 18, 115 P. 1057, and State v. Hearn, 59 Or. 227, 115 P. 1066, 117 P. 412. Apparently the people after a trial of about four years were not satisfied with the manner in which the liquor traffic was being controlled and regulated by municipalities under the Home Rule Amendment. They were not willing to tolerate the evils attendant upon the operation of the open saloon. Public opinion so changed that, on November 3, 1914, the people adopted article 1, section 36, of the Oregon Constitution generally referred to as...