State v. Cochran

• Decision Date: 12 October 1909
• Citation: 104 P. 419,55 Or. 157
• Parties: STATE v. COCHRAN.
• Court: Oregon Supreme Court

104 P. 419

55 Or. 157

STATE v. COCHRAN.

Supreme Court of Oregon

October 12, 1909

Appeal from Circuit Court, Multnomah County; Robert G. Morrow Judge.

Sam Cochran was convicted of violation of the local option law (Laws 1905, p. 41), and appeals. Reversed, and defendant's bail exonerated.

Moore C.J., and Eakin, J., dissenting.

Thos O'Day, for appellant.

J.H Page and A. King Wilson (George J. Cameron, on the brief), for the State.

KING J.

Defendant was informed against, tried, and convicted in the circuit court for violating what is known as the local option law (Laws 1905, p. 41) in precinct No. 91 in the city of St. Johns. The council of that city, acting upon the advice of the city attorney to the effect that the local option law did not apply to that locality, adopted an ordinance permitting the sale of intoxicating liquors upon the payment of a license fee of $1,200 per annum. Defendant, after paying the required license fee, was given a license to sell spirituous, malt, and vinous liquors, and was operating under it at the time of making the sale of liquor for which he was convicted.

St. Johns was first incorporated by an act of the legislative assembly on February 19, 1903. By section 18, subd. 13, thereof, the council was given power and authority "to license, tax, regulate, and restrain, suppress, and prohibit *** barrooms, groceries, tippling-houses; *** and all citizens within the corporate limits shall be exempt from any county license which is or may hereafter be imposed by the general laws of the state. ***" The local option law authorizing the voters in any county or subdivision thereof within the state to determine whether the sale of intoxicating liquors shall be prohibited in such county or subdivision was initiated and adopted by the vote of the people of the state on June 6, 1904, and took effect June 24, 1904. Laws 1905, p. 41. On January 20, 1905, the Legislature granted the city of St. Johns a new charter by an act entitled "An act to incorporate the city of St. Johns, Multnomah county, state of Oregon, and to provide a charter therefor and to repeal all acts or parts of acts in conflict therewith." Sp.Sess.Laws 1905, p. 519. By section 69, subd. 45, thereof, the council is granted the power and authority "to regulate and restrain bartenders, saloon keepers, dealers in and manufacturers of spirituous, vinous, fermented or malt liquors, barrooms, drinking shops, or places where spirituous, vinous, or malt liquors are kept for sale, or in any manner disposed of, and the sale and disposal thereof. ***" The charter of 1905 also contains a provision, not found in the former charters, that "no provisions of the law concerning the sale or disposition of any spirituous, vinous, fermented, or malt liquors in Multnomah county, shall apply to the sale or disposition of the same in the city of St. Johns. ***" On June 4, 1906, the people of the state of Oregon by the initiative adopted an amendment to article 11, § 2, Const., which took effect June 25th following, and reads as follows: "Corporations may be formed under general laws, but shall not be created by the legislative assembly by special laws. The legislative assembly shall not enact, amend, or repeal any charter, or act of incorporation for any municipality, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon." In the year 1907 the people of the city of St. Johns, by the initiative, adopted "an act to incorporate the city of St. Johns, Multnomah county, Oregon, to provide a charter therefor, and to repeal all acts or parts of acts in conflict therewith." Section 68, subd. 45, of this charter, is a copy of section 69, subd. 45, of the charter of 1905, with the addition of the word "license" immediately following the first word "to." At the general election on June 1, 1908, by a vote of the people in the precinct mentioned, prohibition was adopted under the provisions of the general act on the subject.

Defendant maintains there is no difference in effect between the provisions of the charter of St. Johns and that of the city of Medford so far as applies to the sale of intoxicants, by reason of which it is insisted that the conclusion announced by this court in Hall v. Dunn, 52 Or. 475, 97 P. 811, is decisive of this case; while plaintiff's principal reliance for affirmance is upon the decision in the case of State ex rel. v. Malheur County (Or.) 101 P. 907, with reference to which it is insisted that the charter of Vale and the one under consideration on the point in question are substantially the same. The question as to the effect of the adoption of the charter after the enactment of the local option law, and whether a special act repeals a general act in such cases, as well as some of the other legal points involved herein, are so thoroughly and exhaustively considered and determined in the case of Hall v. Dunn that any further elucidation thereof at this time would be fruitless. It is only necessary here to ascertain whether the provisions of the charter under consideration come within the legal principles there enunciated. The language contained in the charter of Medford (Sp.Laws 1905, p. 989, et seq.), the effect of which was determined in that case, we think is to the same effect as that of the charter under consideration. But it is suggested in this connection that there is a distinction between the two charters, in that the Medford charter provides that the council may "license, tax, regulate, or prohibit." etc., while the St. Johns charter uses the words "to regulate and restrain" the sale or disposition of spirituous liquors, etc., and that no law concerning the sale or disposition thereof shall apply to that city; or, in other words, that the legal effect of "prohibit" differs from "restrain." There is a slight distinction between the two words, but such as there is, if it has any bearing on the case at hand, has the opposite effect to that claimed for it, for, if there is any difference between them, the word "restrain" is the more general and comprehensive term, as it necessarily includes not only the right to regulate, but to "prohibit" as well, while the converse is not essentially true. However, the words are usually treated as synonymous. See March's Thesaurus; Soule's Synonymes. The Century Dictionary in defining the word "restrain" among other interpretations holds it to be "to forbid; to prohibit"; and the Standard Dictionary defines it to be "to enjoin; to restrict; to prohibit." Judge Grosscup in Re Charge to Grand Jury (D.C.) 62 F. 828, 831, defines the word thus: "To restrain is to prohibit, limit, confine, or abridge a thing. The restraint may be permanent or temporary. It may be intended to prohibit, limit, or abridge for all time, or for a day only. The law draws no distinction in this respect." To the same effect: Smith v. Town of Warrior, 99 Ala. 481, 12 So. 418; Vinson v. Town of Monticello, 118 Ind. 103, 19 N.E. 734. One of the statements in Portland v. Schmidt, 13 Or. 17, 22, 6 P. 221, tends to the contrary, but the court there only had under consideration the validity of a license ordinance, and the powers enumerated related solely to the regulation of barrooms and drinking shops. The opinion there injected relative to the limitation to be placed upon the word "restrain" is not only mere dicta, but is in conflict with the great weight of authority, and is not supported by any authoritative lexicographer.

But assuming that the word "restrain" does not go to the extent stated, this variance from the language used in the Medford charter could not affect the result. The Medford charter adds the power "to license," but in the charter under consideration this power is included in the word "regulate." Chicago Packing Co. v. Chicago, 88 Ill. 221, 226, 30 Am.Rep. 545. And the power to license is irreconcilable with the local option law, and, when construed with a provision to the effect that no general law respecting sales of intoxicants shall apply to the municipality in which such power is granted, must necessarily take such locality out of the operation of the act. The two laws cannot operate in the same place at the same time, for one permits and the other prohibits sales for beverage purposes. Again, the effect of the word "prohibit"[55 Or. 164] --omitted in the st. JohnS charter--could only become material in the event we were confronted with the query as to whether in the absence of the local option law, or the application thereof, the city would have the power to prohibit the sale of intoxicants. No attempt is made by the city to prohibit such sale, but, on the other hand, it has issued a license permitting the sale thereof. Under the charter as it stands, in the light of clear and express declaration to the effect that the municipality shall be excepted from the operation of any other law relating to the sale of liquors, and it having been given the right to license and restrain the sale of intoxicants, there is no possible reconciliation of these provisions with the local option law, which, when coupled with the result announced by a vote of the people in Precinct No. 91, declares that it shall not have that power, in reference to which Mr. Justice Moore, speaking for this court, in Hall v. Dunn, 52 Or. 475, 97 P. 811, 816, announces the rule to be: "If it be asserted, however, that the abrogation is not express, the provisions of the local option law and of the amended charter are so repugnant in the respects mentioned that both measures cannot be enforced in the city of Medford, and for that reason the earlier statute is impliedly repealed by the later enactment. ...