Perry v. Oregon Liquor Commission

Decision Date18 February 1947
Citation180 Or. 495,177 P.2d 406
PartiesPERRY <I>v.</I> OREGON LIQUOR CONTROL COMMISSION
CourtOregon Supreme Court
                  See 30 Am. Jur. 331; 48 C.J.S., Intoxicating Liquors, § 175
                

Appeal from Circuit Court, Multnomah County.

JAMES R. BAIN, Judge.

Wilber Henderson, of Portland, attorney for Oregon Liquor Control Commission, appellant.

No appearance for respondent on the merits. (W.J. Prendergast, Jr., of Portland, for respondent on motion to dismiss.)

REVERSED.

BELT, J.

This is an appeal from a decree setting aside and cancelling an order of the Oregon Liquor Control Commission suspending for a period of sixty days a license issued to Mary P. Perry to operate the Shangri-La Supper Club in the city of Portland. The restaurant and service licenses were suspended for the reason:

"That you have violated the provisions of the Oregon Liquor Control Act and the regulations of the Commission pursuant thereto.

"That your employe has been convicted of a misdemeanor committed on the licensed premises, to wit: sale of spirituous liquor."

It was stipulated that such employee was convicted of a sale of spirituous liquor on the premises of the licensee. It was further stipulated that the sale was not in the presence of the licensee, and that if she were called as a witness, she would testify that the sale of whiskey was without her knowledge and against her instructions.

The Commission in suspending the license based its order on § 24-122, O.C.L.A., which provides that:

"The commission may cancel or suspend any such license granted if it finds or has reasonable ground to believe any of the following to be true:

(1) That the licensee has violated any provision of this act or acts amendatory hereof or any regulation of the commission pursuant hereto. * * * * *." (Italics ours)

and also on subdivision (m) of Regulation 3 of the Rules and Regulations of the Commission which provides:

"Licensees shall be held strictly accountable for any act or omission of any servant, agent, employee or representative of such licensee in violation of any law, municipal ordinance or regulation affecting the licensed privilege."

The circuit court, on appeal, held that the Commission abused its discretion in suspending the license and that it had no authority to adopt the regulation above set forth, and that under § 24-122, O.C.L.A., the conviction of the employee did not establish the fact that the licensee had violated any law by selling spirituous liquor.

From the decree reinstating the license, the Liquor Commission has appealed. Respondent filed no brief on the merits.

ON MOTION TO DISMISS APPEAL

Licensee has set forth several grounds for the dismissal of this appeal, but we think there are only two of them worthy of consideration, viz: (1) Does this court have jurisdiction to hear the cause? Is there any statutory authorization of appeal by the Commission from decree of circuit court? (2) Is the question as to the suspension of the license a moot one — and therefore improper to consider — since the suspension period expired October 21, 1946? These questions will be considered in the order stated.

1, 2. We are not unmindful of the fundamental principle that appeal is purely a statutory right. If the right of appeal is not authorized by statute, it does not exist. § 24-127, O.C.L.A., provides that if the Commission revokes or suspends a license, the licensee has the right of appeal to the circuit court. In this special statutory proceeding, the right of the Commission to appeal from a decree of the circuit court is given under and by virtue of § 11-103, O.C.L.A., which provides:

...

To continue reading

Request your trial
46 cases
  • Yancy v. Shatzer
    • United States
    • Oregon Supreme Court
    • September 16, 2004
    ... ... (CC 0008-08313; CA A114776; SC S50280) ... Supreme Court of Oregon, En Banc ... Argued and Submitted May 6, 2004 ... Decided September ... For example, in 1947, this court utilized such an exception in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947). In ... ...
  • Cooper v. Eugene School Dist. No. 4J
    • United States
    • Oregon Supreme Court
    • July 29, 1986
    ... ... Duncan, Superintendent of Public Instruction for ... the State of Oregon, Petitioner on Review ... CA A31423; SC S32472; S32469 ... Supreme ... The district relies on Perry v. Oregon Liquor Commission, 180 Or. 495, 499, 177 P.2d 406 (1947) for the ... ...
  • Barcik v. Kubiaczyk
    • United States
    • Oregon Supreme Court
    • May 25, 1995
    ... ... CC C92-0085CV; CA A77165; SC S41340 ... Supreme Court of Oregon, ... Argued and Submitted Nov. 1, 1994 ... Decided May 25, 1995 ... " In support of their argument, plaintiffs rely on a statement in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947): ... ...
  • State ex rel. Nilsen v. Whited
    • United States
    • Oregon Supreme Court
    • November 25, 1964
    ...396 P.2d 758 ... 239 Or. 149 ... STATE of Oregon ex rel. Norman O. NILSEN, Commissioner of ... the Oregon Bureau of Labor, ... 150] Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ ...         ROSSMAN, ... breach of contract, either express or implied, and without the commission of a tort or a crime.' ...         Plaintiff assigns as error the ... other defendants, Annable and De Vos, were holders of a class 'B' liquor dispensers license for the Stirrup Room of a hotel in Baker. The Stirrup ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT