Clubine v. City of Merrill

• Decision Date: 20 February 1917
• Parties: CLUBINE v. CITY OF MERRILL.
• Court: Oregon Supreme Court

163 P. 85

83 Or. 87

CLUBINE v. CITY OF MERRILL.

Supreme Court of Oregon

February 20, 1917

Department 2.

Appeal from Circuit Court, Klamath County; George Noland, Judge.

A. F Clubine was found guilty in justice's court of selling intoxicating liquors on election day in violation of ordinance. He appealed to the circuit court, and while the appeal was pending, sued out a writ to review judgment of the justice's court. The writ was denied, and he appeals. Affirmed.

The plaintiff was arrested and brought before the recorder of the city of Merrill upon a complaint which reads as follows:

"A F. Clubine is accused by this complaint of the crime of selling intoxicating liquor on election day committed as follows: The said A. F. Clubine on the 3d day of November 1914, in the city of Merrill and state of Oregon, did willfully and unlawfully sell and dispose of intoxicating liquor and open his saloon for the purpose of such sale on the 3d day of November, 1914, the same being the day on which an election for county officers was held in said city, which said opening of his saloon and sale of intoxicating liquor was contrary to the provisions of Ordinance 28 of the city of Merrill in such cases made and provided, and against the peace and dignity of the city of Merrill."

Thereafter the following entries appear in the journal of the recorder's court:

"In Recorder's Court for the City of Merrill, State of Oregon, and County of Klamath. City of Merrill v. A. F Clubine. Criminal. Opening saloon for the purpose of selling intoxicating liquor on election day. November 16 1914, T. M. Durham, city marshal, appeared before me and made complaint charging A. F. Clubine with having opened his saloon and disposed of intoxicating liquor on the 3d day of November, 1914, the same being the day on which an election for public officers of the state of Oregon was held in said city of Merrill. Said opening being contrary to the provisions of Ordinance 28 of the city of Merrill. A warrant of arrest was issued and the said A. F. Clubine was arrested and brought into court November 23, 1914. Upon the reading of the complaint the defendant entered his plea of not guilty. The defendant being in open court acknowledged that he did on the 3d day of November, 1914, at the hour of 8:35 o'clock p. m. open his saloon for the purpose of selling intoxicating liquor. The defendant desiring time to consult an attorney, the court adjourned and time of hearing was set for December 2d at 4 o'clock p. m.

"December 2d, 4 P. M. To allow defendant's attorney further time court adjourned to 5 o'clock to-day.

"December 2d, 5 P. M. Court adjourned to 9 o'clock a. m. December 3, 1914.

"December 3d, 9 A. M. Comes now the defendant in person and by his attorney, F. H. Mills, and moves the court to strike from the record all those statements of the defendant as inserted in the record after the plea of not guilty, and for the reason that the same are irrelevant and immaterial under section 2130 of Lord's Oregon Laws. The defendant by his plea of not guilty did deny the sale or disposition of intoxicating liquor during any election day. And the defendant hereby demurs to the criminal complaint now pending and for the reasons as fully appear from such demurrer now on file. The motion to strike out such statements of the defendant is hereby denied."

The defendant by his counsel demurred to the complaint, alleging lack of jurisdiction in the recorder's court to try him and specify nine different reasons why said ordinance was void, which demurre...