Perry v. Oregon Liquor Commission
Decision Date | 18 February 1947 |
Citation | 180 Or. 495,177 P.2d 406 |
Parties | PERRY <I>v.</I> OREGON LIQUOR CONTROL COMMISSION |
Court | Oregon Supreme Court |
See 30 Am. Jur. 331; 48 C.J.S., Intoxicating Liquors, § 175
Appeal from Circuit Court, Multnomah County.
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.
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:
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:
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.
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:
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