Sandys v. Williams

• Decision Date: 24 April 1905
• Citation: 80 P. 642,46 Or. 327
• Parties: SANDYS et al. v. WILLIAMS, Mayor, et al. [*]
• Court: Oregon Supreme Court

80 P. 642

46 Or. 327

SANDYS et al. v. WILLIAMS, Mayor, et al. ^[*]

Supreme Court of Oregon

April 24, 1905

Appeal from Circuit Court, Multnomah County; M.C. George, Judge.

Suit by Harry Sandys and others against George H. Williams, mayor of the city of Portland, and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

This is a suit by Harry Sandys and others against George H. Williams as mayor of Portland, H.W. Hogue, as municipal judge, Charles H. Hunt, as chief of police, and Ben Biglin, as harbor master of that city, to enjoin the enforcement of a municipal ordinance. The complaint states, in effect, that prior to June 1, 1904, plaintiffs, having secured licenses therefor then were and now are severally engaged in conducting in Portland either a restaurant or a saloon, and at great expense had erected in connection with their respective places of business, private rooms, booths, and alcoves, in which they supplied their guests and the general public with food and drink; that the common council of that city passed an ordinance June 1, 1904, which, so far as deemed involved herein, is as follows:

"Section 1. No person engaged in selling spirituous, malt or fermented liquors or wines in quantities less than one quart in any saloon, barroom or restaurant in the city of Portland, shall sell any liquor to be delivered or used or that shall be delivered or used in any side room, back room, upper room or other apartment in the same or an adjoining building, and shall not maintain therein or connect therewith any alcove booth or box ***: provided, that nothing herein contained shall prohibit the serving of such liquor to guests in a hotel having a valid license to sell the same.

"Sec 2. It shall be unlawful for any person to conduct, carry on open or maintain any restaurant, barroom, or saloon within the city of Portland that has connected therewith any box, booth, stall or any private room: provided, however, that this section shall not apply to a private room having a floor space of more than 160 square feet, nor shall it apply to restaurants in which spirituous, malt or fermented liquors or wines are not sold and in which such box, booth, stall or private room is so constructed as to be entirely open upon the side facing any hall, hallway, passageway or room, and the sides thereof do not exceed seven feet in height."

Rev.Ord. Portland 1905, p. 438.

The complaint further states, in substance, that defendants are officers of the city, whose dtuy it is to make complaints against and prosecute persons for violating municipal laws; that, if the provisions quoted be enforced, it will work a revocation of plaintiffs' licenses, to forfeit which the council is powerless, except for a violation of the terms upon which they were issued, and plaintiffs have not broken any of the conditions thereof; that the ordinance in question is unconstitutional, in that it attempts to grant to certain citizens privileges and immunities which upon the same terms do not equally belong to all citizens, and is void because it is unreasonable and oppressive; that the defendants threaten to, and will, unless restrained, complain against plaintiffs, causing them to be arrested, prosecuted, and punished if they continue to conduct the business in which they are severally engaged; that the keeping of restaurants and of saloons is lawful, and plaintiffs have invested large sums of money in such business, and in erecting and furnishing rooms, alcoves, boxes, and booths in connection with their several places of traffic, and thereby have built up a substantial trade; that, if such threats are executed, plaintiffs will be deprived of vested property rights, causing irreparable injury, to indemnify which the defendants are not financially responsible, and for their acts in this respect the city is not liable; and that plaintiffs have no plain, speedy, or adequate remedy at law.

A demurrer to the complaint on the ground that it did not state facts sufficient to entitle plaintiffs to the relief demanded having been sustained, and no amendment to the pleading having been made, the suit was dismissed, and they appeal.

Martin L. Pipes and John F. Logan, for appellants.

John P. Kavanaugh, for respondents.

MOORE, J. (after stating the facts).

It is insisted by plaintiffs' counsel that the local option liquor law adopted by the people at the general election held June 6, 1904, in pursuance of initiative petitions (Laws Or.1905, p. 41, c. 2), deprives the common council of Portland of the power to license, regulate, or restrain the sale of intoxicating liquors in that city, and, this being so, the ordinance complained of is void, and an error was committed in sustaining the demurrer to the complaint. It it argued that the old law and the new cannot both exist at the same time, and that the local option act, being the latest expression of the direct will of the people, supersedes all prior legislation on the subject to which it relates. The act of the people adverted to does not in express terms attempt to repeal any other law. The rule in this state is that, though repeals by implication are not prohibited by the Constitution ( Grant County v. Sels, 5 Or. 243; Warren v. Crosby, 24 Or. 558, 34 P. 661), they are not favored in law or allowable, except where the inconsistency and repugnancy between a prior and a subsequent act on the same subject are plain and unavoidable ( McLaughlin v. Hoover, 1 Or. 31; State v. Rogers, 22 Or. 348, 30 P. 74; Continental Ins. Co. v. Riggen, 31 Or. 336, 48 P. 476). Where, however, the enactment is a new and independent law, revising some previous policy of the state, or altering the whole subject of a prior statute, and evidently intended as a substitute therefor, although containing no abrogating clause, the later act will operate as a repeal of the old law by implication. State v. Benjamin, 2 Or. 125; Fleischner v. Chadwick, 5 Or. 152; Little v. Cogswell, 20 Or. 345, 25 P. 727; Strickland v. Geide, 31 Or. 374, 49 P. 982; Ex parte Ferdon, 35 Or. 171, 57 P. 376; Ladd v. Gambell, 35 Or. 393, 59 P. 113; Reed v. Dunbar, 41 Or. 509, 69 P. 451. If two statutes relating to the same subject are inconsistent, the later law furnishes the rule of action; and, though it contains no revoking words, it repeals the prior act by implication, so far as the conflict is concerned. Hurst v. Hawn, 5 Or. 275; Smith v. Day, 39 Or. 531, 64 P. 812, 65 P. 1055. If a later statute, however, only modifies a prior law, the two must be taken together as one act. Winter v. Norton, 1 Or. 43; Bower v. Holladay, 18 Or. 491, 22 P. 553; Winters v. George, 21 Or. 251, 27 P. 1041. A subsequent act not embracing the entire ground of an earlier statute, and not clearly designed as a substitute therefor, will not repeal the prior act unless its provisions are so repugnant to it that both cannot stand. In re Booth's Will, 40 Or. 154, 61 P. 1135, 66 P. 710. In the case last cited, Mr. Chief Justice Bean, discussing the interpretation of statutes, says: "It is therefore the duty of the court to adopt any reasonable construction that will give effect to both acts, and, in order that one may have the effect of repealing another by implication, its conflict with the former act must be 'so positive as to be irreconcilable by any fair, strict, or liberal construction of it, which would, without destroying its evident intent and meaning, find for it a reasonable field of operation, preserving at the same time the force of the earlier law, and construing both together in harmony with the whole course of legislation on the subject.' "

Keeping these rules in view, the charter of the city of Portland, approved January 23, 1903 (Sp.Laws Or.1903, p. 3), and the local option law, will be examined, to ascertain if the latter repeals the former by implication, so far as it relates to the subject of intoxicating liquors.

The charter contains the following provisions on that topic "The council has power and authority *** to grant licenses *** and to provide for the revoking of the same." Section 73, subd. 21. "To regulate and restrain bartenders, saloon keepers, dealers in and manufacturers of spirituous, vinous, fermented, or malt liquors, bar-rooms, drinking shops, or places where spirituous, vinous, fermented, or malt liquors are kept for sale, or in any manner disposed of, and the sale and disposal thereof." Section 73, subd. 48. The local option law provides, in effect, that whenever a petition therefor has been filed with the county clerk for an election in any county or a subdivision thereof, consisting of one or more entire and contiguous precincts, which may also embrace the whole or a part of any incorporated town or city, the county court of such county shall order an election to be held, to determine whether the sale of intoxicating liquors shall be prohibited in the designated territory. Section 1,. When an election has been held in pursuance of the provisions of this act, the county clerk shall canvass the returns and make an abstract of the votes, and, if a majority thereof are for prohibition, the county court shall make an order declaring the result, and prohibiting the sale of intoxicating liquors within the prescribed district. Section 10. When such order has been regularly made, any person who thereafter, within the inhibited territory, sells, exchanges, or gives away any intoxicating liquors, shall be subject to prosecution, etc. Section 15. The adoption of the local option law was the enactment of a new statute relating to intoxicating liquors, but a perusal thereof will show that it was not intended as a substitute for the earlier law, but only as a modification thereof when its provisions become applicable to a specified district by a majority vote...