Gouge v. David et al.
| Citation | 202 P.2d 489,185 Or. 437 |
| Parties | GOUGE <I>v.</I> DAVID ET AL. |
| Decision Date | 25 January 1949 |
| Court | Supreme Court of Oregon |
2. Liquor licenses are issued, not as a matter of course, but through the exercise of Liquor Control Commission's informed judgment. O.C.L.A. §§ 24-106, 24-116, to 24-118, 24-121.
Statutes — Ambiguous — Interpretation — Agency charged with its administration
3. The interpretation of an ambiguous statute by an agency charged with its administration, although not binding upon the courts, is entitled to their careful consideration.
Statutes — Administrative construction — Agency — Enforcement — Weight
4. Administrative construction of a statute manifested through the routine pursued by officials in employ of agency to whom enforcement of act was entrusted possess less weight than constructions announced at the close of inter partes proceedings.
Statutes — Construction — Contents — Administrative agency
5. The statute requiring that in construction of a statute or instrument the contents thereof be ascertained and declared without insertion or omission applies to construction given to a statute by an administrative agency. O.C.L.A. § 2-216.
Statutes — Administrative agency — Construe statutes — Alter — Meaning — Unambiguous passages
6. An administrative agency can not construe statutes which need no construction and can not alter the meaning of unambiguous passages.
Statutes — Clear language — Ambiguity — Construction — Absurd result
7. Although an act is expressed in clear language, a conclusion may be warranted that an ambiguity exists and that act is subject to construction of literal interpretation would produce an absurd result or one at variance with policy of legislation as a whole. Intoxicating liquors — Liquor control act — Liquor Control Commission — Authority
8. The licensing provisions of the Liquor Control Act are construed as conferring upon Liquor Control Commission no authority to issue licenses valid for more than one year, as requiring that all licenses expire December 31 regardless of when issued, and as prohibiting commission from issuance of temporary license valid for period in which commission has a renewal application under consideration. O.C.L.A. §§ 24-106, 24-116 to 24-118, 24-121.
Statutes — Liquor Control Act — Section 24-119 construed with section 24-121
9. Section 24-119 of the Liquor Control Act, providing for a special retail beer license for picnics, conventions, and the like at a rate of $5.00 per day, does not create an ambiguity when construed with section 24-121 requiring all licenses to expire at midnight December 31. O.C.L.A. §§ 24-119, 24-121.
Intoxicating liquors — Liquor Control Act — "Permit" — Section 24-106(e) construed with section 24-123
10. The use of the word "permit" in statutory provision giving Liquor Control Commission power to grant, refuse, suspend or cancel licenses and permits for the sale or manufacture of alcoholic liquor or other licenses and permits in regard thereto appearing in section 24-106(e), when construed together with section 24-123 providing that no one can purchase liquor from commission without first securing a permit, has reference to a purchaser's permit and not to a vendor's permit and is not subject to construction that commission has power, in lieu of granting a license, to issue a permit to sell liquor. O.C.L.A. §§ 24-106 (e), 24-123.
Intoxicating liquors — Liquor Control Act — Liquor Control Commission — Unbridled discretion
11. The licensing provisions of the Liquor Control Act do not confer upon Liquor Control Commission authority to exercise an unbridled discretion. O.C.L.A. §§ 24-105, 24-106(i).
Administrative law and procedure — Statute creating administrative agency — Restricts agency to powers granted
12. A statute which creates an administrative agency and invests it with its powers restricts agency to powers granted, and the statute is not a mere outline of policy which agency is at liberty to disregard or put into effect according to its own ideas of the public welfare.
Intoxicating liquors — Liquor Control Act — Liquor Control Commission — "Provide for the licensing"
13. The provision of the Liquor Control Act that the Liquor Control Commission shall "provide for the licensing" under the act does not confer upon commission some unexpressed power to issue licenses which are not mentioned in act, and such provision merely invests commission with power to provide for mechanics of issuing licenses. O.C.L.A. § 24-117.
See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of "Provide for the Licensing".
Intoxicating liquors — Statute — "Granted" — "Renewed" — Reference
14. The words "granted" and "renewed" as used in statute relating to liquor licenses do not authorize Liquor Control Commission to grant to one person a kind of license that is unavailable to the other, but such words have reference to situation existing as between applicants where one is known to commission and has a substantial financial investment in business and another is a stranger to commission. O.C.L.A. § 24-119.
Intoxicating liquors — License — Liquor Control Commission — Deliberate act
15. The issuance of a license by the Liquor Control Commission must be a deliberate act in that application and other relevant papers must be perused and judgment must be exercised, and the payment of license fee into commission's office does not cause the automatic issuance of a license. O.C.L.A. §§ 24-117, 24-119.
Intoxicating liquors — Liquor Control Commission — Licenses — Application
16. The requirement that the Liquor Control Commission issue licenses does not mean that the three commissioners must give personal attention to every application, but commission can avail itself of assistance of a staff, but no license can be granted except as the result of a course of operations that commission itself prescribed. O.C.L.A. § 24-117.
Statutes — Liquor Control Act — Construction — Liquor Control Commission — Force of law
17. The rule that agency construction has force of law if statute is re-enacted after agency charged with its administration construed it and legislative body was familiar with construction when it re-enacted the statute had no application to construction of Liquor Control Act given by Liquor Control Commission where act was not reenacted after purported administrative construction was made and where there was no showing that legislature was familiar with construction. O.C.L.A. §§ 24-101 to 24-109.
Intoxicating liquors — Constitutional right — Liquor traffic
18. No one has a constitutional right to engage in the liquor traffic.
Intoxicating liquors — Liquor Control Commission — Renewal licenses
19. Liquor Control Commission is not under a duty to issue all renewal licenses before January 1, regardless of circumstances. O.C.L.A. §§ 24-104, 24-106, 24-119, 24-121. Intoxicating liquors — License — Attitude of city administration — Liquor Control Commission
20. The unfavorable attitude of a local city administration toward a license under the Liquor Control Act is a justifiable reason for delay by Liquor Control Commission in granting a new license after expiration of old license. O.C.L.A. §§ 24-104, 24-117, 24-119, 24-121.
Constitutional law — Courts — Legislative power
21. Courts have no legislative power and therefore cannot rewrite an act and cannot overcome lack of legislative power by resort to misconstruction of plain language of act.
Administrative law and procedure — Extent — Dominant act
22. Administrative rules and regulations can go no further than fill in the interstices of the dominant act.
Intoxicating liquors — Liquor Control Act — Construed — Liquor traffic.
23. The Liquor Control Act is construed as prohibiting everyone from entry into liquor traffic until Liquor Control Commission approves his application and issues to him a license. O.C.L.A. §§ 24-101 to 24-149.
Arrest — Malicious prosecution — Receipt for payment of license fee — No license — Dismissal of charge — Sheriff — District attorney
24. Where tavern keeper, had applied for a renewal of his "on sale" beer and wine license and had a receipt for payment of license fee but did not have a license for current year issued by Liquor Control Commission at time sheriff entered his premises, his arrest for selling liquor without a license was lawful, and notwithstanding subsequent dismissal of charge, tavern keeper had no cause of action against sheriff, district attorney and other persons involved in such arrest for malicious prosecution. O.C.L.A. §§ 24-118, 24-119, 24-121, 24-137.
See 48 C.J.S., Intoxicating Liquors, § 115
116 A.L.R., 1098
42 Am. Jur., 300
Appeal from Circuit Court, Clackamas County.
John D. Galey, of Sweet Home, argued the cause for appellant. On the brief were Galey & Galey, of Sweet Home.
James G. Smith, of Portland, argued the cause for respondent M.B. Hayden. With him on the brief was Robert F. Maguire, of Portland.
George A. Rhoten, of Salem, argued the cause for respondents Denver I. Young and Continental Casualty Company. On the brief were Rhoten & Rhoten, of Salem.
Before ROSSMAN, Chief Justice,* and LUSK,** BELT, BAILEY and HAY, Justices.
This is an appeal by the plaintiff from a judgment of the Circuit Court in favor of the defendants, four in number, which was entered after the court had sustained a motion made by the defendants for a judgment of involuntary nonsuit. The action was instituted to recover damages, compensatory and punitive, for an...
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