State v. Lermeny

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before PERRY; LUSK
• Citation: State v. Lermeny, 326 P.2d 768, 213 Or. 574 (Or. 1958)
• Decision Date: 04 June 1958
• Parties: STATE of Oregon, Respondent, v. Robert L. LERMENY, Appellant.

Page 768

326 P.2d 768

213 Or. 574

STATE of Oregon, Respondent, v. Robert L. LERMENY, Appellant.

Supreme Court of Oregon.

Argued May 6, 1958.

Decided June 4, 1958.

W. K. Carey and S. H. Burleigh, La Grande, argued the cause for appellant. On the brief was Edward E. Grant, Enterprise.

M. Keith Wilson, Dist. Atty., Enterprise, argued the cause and filed a brief for respondent.

Before PERRY, C. J., and ROSSMAN, LUSK and McALLISTER, JJ.

LUSK, Justice.

The defendant has appealed from a judgment of conviction of violation of the Oregon Liquor Control Act, ORS 471.005 et seq.

The indictment reads:

'Robert Lermeny is accused by the Grand Jury of the County of Wallowa by this Indictment of the crime of Selling alcoholic liquor without a license, committed as follows:

'The said Robert Lermeny on the 27 day of April, 1957, in the said County of Wallowa, and State of Oregon, then and there being, did then and there unlawfully and wilfully, sell, solicit, take orders for and peddle certain alcoholic liquor, to-wit, whiskey, without first having obtained a license from the Oregon State Liquor Control Commission so to do, contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'

The trial was before the court on the following stipulated facts:

'On April 27, 1957, the defendant, Robert Lermeny, was operating a taxi business in the City of Enterprise, Oregon. Lermeny was not licensed to sell intoxicating liquor but had a permit to purchase liquor. On that date, Charles Franklin Mallon, who was a prisoner in the Wallowa County jail, but who was on leave from the jail with consent of the jailer, called Lermeny's number on the Enterprise telephone exchange, and asked for a taxi to be dispatched to the home of Mallon's sister in Enterprise. Lermeny's wife answered the call and arrived with the taxi. Mallon advised Mrs. Lermeny that he wished to see Lermeny, and she drove him to the Lermeny home.

'There Mallon asked Lermeny to purchase for him two pints of whiskey, and advised Lermeny that he, Mallon, had no permit to purchase liquor, and didn't want to purchase a permit. There is no evidence that defendant knew Mallon was under jail sentence, and defendant expressly denies knowing who Mallon was.

'Mallon gave defendant $20.00 in currency and defendant drove to the liquor store in Enterprise, went into the store and brought two pints of whiskey, delivered the whiskey to Mallon in the taxi, along with the change remaining from the $20.00, and redelivered Mallon to Mallon's sister's home in Enterprise. There is no evidence that the defendant made any profit on the liquor transaction and the defendant expressly denies receiving any compensation for making the purchase.'

ORS 471.405(3) provides:

'No person not licensed under the Liquor Control Act shall sell, solicit, take orders for or peddle alcoholic liquor.'

The words 'to sell' and 'sale' are thus defined by ORS 471.025:

'(1) Whenever the words 'sell' or 'to sell' refer to anything forbidden under the Liquor Control Act and relate to alcoholic liquor, they include:

'(a) To solicit or receive an order.

'(b) To keep or expose for sale.

'(c) To deliver for value or in any way other than purely gratuitously.

'(d) To peddle.

'(e) To keep with intent to sell.

'(f) To traffic in.

'(g) For any consideration, promise or obtain, directly or indirectly, or under any pretext or by any means, to procure or allow to be procured for any other person.

'(2) The word 'sale' includes every act of selling as defined in subsection (1) of this section.'

The stipulation does not specify that 'the liquor store in Enterprise' was an agency duly licensed by the Oregon Liquor Control Commission to sell intoxicating liquors (ORS 471.210), but we may assume this to be the fact.

The state contends that the defendant's act in purchasing whiskey on his own permit, at the request of Mallon and with Mallon's money and delivering it to him, constituted a sale of alcoholic liquor. It is said that the defendant received an order for alcoholic liquor from Mallon; that he delivered alcoholic liquor to him for value; and that he procured intoxicating liquor for another person 'under the explicit representation that he was procuring it for himself.' Upon the last mentioned point the state's brief says:

'Subsection 1g, 471.025 ORS qualifies two different classes of transactions as 'sale.' The first embodies those facts where for a consideration, a person promises to, or does obtain, either directly or indirectly alcoholic liquor. * * * The second classification qualifies those transactions as sales where a person by any pretext or by any means, promises to procure or allow to be procured for any other person, intoxicating liquor, and the element of consideration is not material. Defendant acting under the pretext that he was making a purchase of liquor for himself, promises to procure, and did procure intoxicating liquor for another person and thereby sold intoxicating liquor in violation of our statutes.'

We construe all the provisions of ORS 471.025 to contemplate only transactions in which an element of consideration is involved--in short, commercial transactions. As the reasons for this conclusion will sufficiently appear in discussing the state's interpretation of subsection (1)(g) of the statute, we will take up that contention first.

For the purpose of clarity we again quote that subsection:

'For any consideration, promise or obtain, directly or indirectly, or under any pretext or by any means, to procure or allow to be procured for any other person.' (Italics added.)

We cannot agree with the state's interpretation. The subsection, as originally enacted in 1933, Oregon Laws 1933, Second Special Session, ch. 17, § 3(6) read: 'for any consideration, promised or obtained, directly or indirectly, or under any pretext or by any means whatsoever, to procure or allow to be procured for any other person.' The identical language was carried over into O.C.L.A. § 24-103(6) and repeated in Oregon Laws 1949, ch. 445, § 1(6) and Oregon Laws 1951, ch. 570, § 1(6). The section first appeared in its present form in Oregon Revised Statutes adopted in 1953.

Prior to the revision, the meaning of the subsection was clear. The words 'for any consideration' are modified by the phrase 'promised or obtained, directly or indirectly, or under any pretext or by any means whatsoever.' The final phrase, 'to procure or allow to be procured for any other person' is dependent upon all that has gone before. Thus, what the statute means is that one definition of a sale is to procure or allow to be procured, alcoholic liquor for another person for a consideration, whether such consideration be promised or obtained, and whether it be promised or obtained directly or indirectly, or under any pretext or by any means whatsoever. The intention was not to denounce as unlawful the gratuitous procuring of liquor for another person, but only such procuring for a consideration, and care was taken to safeguard against resort to pretexts to cover up the fact that a consideration had actually been paid or promised.

If the provision, as it now appears in ORS, is attempted to be read literally and grammatically, it is practically meaningless. Due to the substitution of the verbs 'promise or obtain' for the former participial adjectives 'promised or obtained' (which have reference to a consideration) the section now says 'promise or obtain * * * to procure or allow', etc. One might promise to procure or allow to be procured liquor for another, although we doubt that the legislature would ever have intentionally defined such a promise as a sale. But to 'obtain * * * to procure or allow' is sheer nonsense. Obviously, it is necessary to resort to construction in order to ascertain the legislative intent.

We think it apparent from what has just been said and from other provisions of the statute defining 's...