Cranor v. City of Albany

• Decision Date: 06 April 1903
• Citation: 71 P. 1042,43 Or. 144
• Parties: CRANOR v. CITY OF ALBANY.
• Court: Oregon Supreme Court

71 P. 1042

43 Or. 144

CRANOR v. CITY OF ALBANY.

Supreme Court of Oregon

April 6, 1903

Appeal from Circuit Court, Linn County; R.P. Boise, Judge.

H.L Cranor was convicted of selling liquor on Sunday, and appeals. Affirmed.

The appellant was arrested under a warrant issued out of the recorder's court of the city of Albany, charged with the violation of a city ordinance which provides, among other things, that, if any person duly licensed to engage in the sale of spirituous, fermented, malt, or vinous liquors within the city "shall sell, give away, or in any manner dispose of, or suffer, permit, or allow to be sold, given away, or in any manner disposed of, on the first day of the week, commonly called Sunday, any spirituous, fermented, malt or vinous liquors," he shall, upon conviction thereof before the recorder's court, be punished by a fine of not less than $50 nor more than $100, or by imprisonment in the city jail for not less than 25 days, nor more than 50 days or by both such fine and imprisonment, at the discretion of the court. The information upon which the warrant was issued charges, in substance, that on the 26th of January, 1902, the plaintiff, at his saloon in the city of Albany, did willfully and unlawfully, "on said date, the same being the first day of the week, commonly called Sunday, sell, give away and dispose to one O.M. Hickey one-half pint of whisky, the same being spirituous, fermented, malt, and vinous liquor, and received therefor the sum of twenty-five cents (25c), he, the said defendant, then and there being duly licensed to engage and was engaged in the sale of spirituous, fermented, malt and vinous liquor within the said city of Albany; contrary to the ordinance in such cases made and provided, and against the peace and dignity of the city." A demurrer to the information on the grounds (1) that it stated more than one cause of action, (2) that the court had no jurisdiction of the crime or misdemeanor charged therein, and (3) that it did not state facts sufficient to constitute a cause of action was overruled. The appellant thereupon entered a plea of not guilty, and moved the court for a trial before a jury, which motion was also denied. A trial before the recorder resulted in a judgment of conviction and a sentence that the appellant pay a fine of $50 and the costs and disbursements of the action, taxed at $9.85. He afterward brought the record before the circuit court by a writ of review, where the judgment was affirmed, and he appeals.

L.M. Curl, for appellant.

J.R. Wyatt, for respondent.

BEAN J. (after stating the facts).

It is contended, first, that the ordinance for the violation of which the plaintiff was arrested, tried, and convicted is invalid, because not within the power of the city to enact. By subdivision 9 of section 34 of the charter of Albany (Sp.Laws 1901, p. 314), the common council is given power and authority "to tax, license, regulate, restrain and prohibit the sale of spirituous, vinous or malt liquors bars, barrooms, drinking shops and tippling houses," etc., provided that each applicant for a license shall present to the council at the time of making application a bond in the sum of $1,000, with two or more sureties, conditioned that he will keep an orderly house, etc.; that no license for the sale of spirituous, vinous or malt liquors shall issue for a less sum than is prescribed by the general laws of the state, or for a less period than six months, or more than one year, or to any woman or minor, or to any person who shall permit any woman, girl, or male minor to frequent his place of business, either as guest, servant, waiter, etc., and that if, after license shall have been granted, the person to whom it is issued, or any one in his employ, shall give or sell liquor to a common drunkard or intoxicated person, or to any woman, girl, minor, or Indian, or shall permit any woman or girl or minor to frequent or to loiter about his place, and shall be found guilty thereof before any c...