Gay v. City of Eugene

• Decision Date: 09 March 1909
• Citation: 100 P. 306,53 Or. 289
• Parties: GAY v. CITY OF EUGENE.
• Court: Oregon Supreme Court

100 P. 306

53 Or. 289

GAY v. CITY OF EUGENE.

Supreme Court of Oregon

March 9, 1909

Appeal from Circuit Court, Lane County; L.T. Harris, Judge.

Writ of review by W.C. Gay against the City of Eugene to review a judgment of conviction in the recorder's court of defendant city. From a judgment of the circuit court annulling the judgment of the recorder's court, the city appeals. Reversed and remanded, with directions to dismiss.

S.D. Allen, for appellant.

L.M Travis, for respondent.

MOORE C.J.

This is a special proceeding to review a judgment of the recorder's court of the defendant, the city of Eugene whereby the plaintiff, W.C. Gay, was sentenced to pay a fine for an alleged violation of an ordinance. The circuit court for Lane county, pursuant to a petition therefor, caused a writ of review to be issued in obedience to which the proceedings of the recorder's court were certified, and the return showed that on May 20, 1907, there was enacted by the common council of Eugene and approved by the mayor thereof Ordinance No. 672, section 3 of which, so far as involved herein, is as follows: "It shall be unlawful for any person, firm, company, or corporation to sell barter, or give away to any person or persons whomsoever within the city of Eugene, any intoxicating liquor, provided, however, nothing herein contained shall prohibit the sale of pure alcohol for scientific or manufacturing purposes, or wines to church officials for sacramental purposes, nor alcoholic stimulants as medicine in cases of actual sickness. *** Nothing in this ordinance shall be construed to prevent one registered pharmacist selling such alcoholic liquors to another registered pharmacist; and every person, firm, company or corporation violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof before the city recorder shall be punished by a fine," etc. There was filed in the office of the city recorder of Eugene on July 1, 1907, a complaint charging the plaintiff herein with a violation of the provisions of the section quoted, but upon objection to the charge the action was dismissed, and two days thereafter there was filed in the same office another verified information, which, omitting the title of the court, of the cause, and of the ordinance, is as follows: "W.C. Gay is accused by this complaint with the violation of section 3 of Ordinance No. 672 of the city of Eugene, entitled, 'An ordinance ***' committed as follows: That on the 25th of June, 1907, within the corporate limits of the city of Eugene, and then and there being, the said W.C. Gay did willfully and unlawfully sell for beverage purposes to one J.D. Woodruff, for the price of twenty-five cents, certain intoxicating liquors, to wit, one quart of beer, against the peace and dignity of the said city and contrary to the ordinance in such case made and provided. E.A. Farrington, Complainant." The defendant demurred to this formal charge, on the ground that the court did not have jurisdiction of the cause; that the complaint did not state facts sufficient to constitute a crime; that it nether substantially complied with the requirements of chapter 7, tit. 18, B. & C. Comp., nor disclaimed the provisions required to be negatived in section 3 of Ordinance No. 672; that such municipal regulation is in conflict with the laws of Oregon, contravenes section 9 of article 1 of the organic law of the state, and is therefore void. The demurrer having been overruled, a plea of not guilty was put in and the defendant, depositing with the city recorder the sum of money required therefor, demanded a trial by jurors, to be selected from a list of persons chosen for that purpose. B. & C. Comp. § 2251; Sp.Laws Or.1905, p. 246; Charter of Eugene, § 18, c. 4. No such list having been made out, the application for a struck jury was denied, whereupon the city marshal, pursuant to a writ of venire, selected persons from the body of the city to serve as jurors, six of whom were peremptorily challenged by the defendant. The record of the city recorder immediately following the entry of the discharge of such persons contains the following recital: "Counsel proceeded to examine jurors and accepted jury"--giving the names of the persons so selected. The action was thereupon tried in the recorder's court, and a verdict of guilty returned, upon which the defendant was sentenced to pay a fine of $200. To review such action he instituted these proceedings, and, based on the return to the writ, the judgment so rendered was annulled, the circuit court predicating its conclusion on the ground that Ordinance No. 672 was passed after the local option law went into effect in Lane county, thereby depriving the common council of the city of Eugene of power to enact such regulation. From the latter judgment the defendant appeals to this court.

A careful examination of the return to the writ of review fails to show that any stipulation was entered into by counsel of the respective parties and filed in the recorder's court or memorandum made therein from which it appears in the trial of the original action that the local option law was ever made specially applicable to Lane county or to the city of Eugene. The enactment mentioned (Laws Or.1905, p. 41) provides generally that when a proper petition is filed demanding an election to be held in a county or subdivision thereof, or in a precinct therein, to determine whether the sale of intoxicating liquors shall be prohibited in that territory, such an election must be ordered; and, if a majority of the votes cast thereat be for prohibition, an order is required to be made by the county court declaring the result of the vote, and absolutely prohibiting the sale of intoxicating liquors within the prescribed limits, except for the purposes and under the regulations specified in the act. Though this law was enacted by the people of Oregon, under the initiative power, June 6, 1904, and took effect generally in the entire state 18 days thereafter, pursuant to the Governor's proclamation, its provisions were not specially applicable to any particular locality until made so by a majority vote in favor of prohibition cast at an election held for that purpose. When an order, based on the returns of an election held in conformity with the provisions of the local option law, is made by a county court, declaring the result of such election and absolutely prohibiting the sale of intoxicating liquors, the statute which had theretofore been in the nature of a...