State v. Schluer

• Decision Date: 31 May 1911
• Citation: 59 Or. 18,115 P. 1057
• Parties: STATE v. SCHLUER.
• Court: Oregon Supreme Court

115 P. 1057

59 Or. 18

STATE v. SCHLUER.

Supreme Court of Oregon

May 31, 1911

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

E.T Schluer was convicted of violating the local option law, and he appeals. Affirmed.

The defendant, E.T. Schluer, was charged with the crime of selling intoxicating liquor in Wallowa county March 10, 1911 in violation of the local option law, which, it is alleged was then in force in the entire county. A plea of not guilty having been entered, the cause was tried upon an agreed statement of facts, in substance, that the city of Joseph is duly incorporated and by its charter, which was in force November 8, 1910, and thereafter continued effective, is authorized to license the sale of intoxicating liquors; that Joseph precinct includes such municipality and adjoining territory, about 90 per cent. of the legal voters of which reside in the city; that local option elections were regularly held in the entire county June 15, 1906, June 6 1908, and November 8, 1910, and, a majority of all the votes cast having respectively been in favor of prohibition, orders to that effect were duly made; that the ballots cast on that question in such precinct at the first election were 71 for prohibition and 57 against it, at the second, 122 approved the measure, and 116 rejected it, and, at the third, 91 favored the proposition and 165 opposed it; that no other prohibition election was ever held in such precinct or in the city; that on January 3, 1911, an ordinance was duly enacted whereby the sale of intoxicating liquors was authorized by the city, pursuant to which a license was issued to the defendant, who, relying thereon, sold intoxicating liquor within the municipal limits at the time stated and to the person named in the charge.

Based on such stipulation, defendant's counsel requested the court to direct a verdict of not guilty, for that the local option law was not in force in the city of Joseph by reason of the amendment of section 2 of article 11 of the Constitution of Oregon, ratified November 8, 1910, and that the license relied upon afforded a complete defense to the action. The request was refused, and the jury were instructed that the city under the facts stated was powerless to authorize the sale of intoxicating liquors. The defendant, having been found guilty, appeals from the resulting judgment.

E.E. Coovert, for appellant.

F.S. Ivanhoe, for the State.

MOORE J. (after stating the facts as above).

The question to be considered is whether or not the change of the organic law referred to relieved the city of Joseph from the order of prohibition in force in Wallowa county as a whole so as to permit the municipality, pursuant to its charter and an ordinance, to license the sale of intoxicating liquors within its limits when no local option election was ever held in the city alone, but in a precinct that included such municipality. The altered section is 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 (and the exclusive power to license, regulate, control, or to suppress or prohibit the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the state of Oregon)." L.O.L. p. 25. The change made November 8, 1910, consists in the addition of the words included within the parentheses above noted. The local option law referred to is set forth in the Code as sections 4920-4937, L.O.L. By that act it devolves upon a county court upon the receipt of a proper petition therefor to order an election to be held in the entire district described in the application. The territory which may be included therein is an entire county, or a subdivision thereof which contains two or more contiguous precincts, or it may be composed of a single precinct. "Such subdivision of a county, or a precinct of a county, may embrace in its limits incorporated towns and cities and portions thereof, or may consist of the whole or a portion of an incorporated city or town, or may lie partially within and partially without an incorporated city or town." Id. § 4920. Elections to determine whether or not the sale of intoxicating liquors for beverage purposes is to be prohibited in any designated territory shall be held only on the first Tuesday after the first Monday in November of any year. "The elections provided for by this act shall be held at the regular voting place or places within the proposed limits and by the judges and clerks of election appointed and qualified under the general election laws of the state, or if held at the time of a city election, then within said city or town by the judges and clerks appointed and qualified under the charter of such incorporated city or town or under the laws of the state regulating such city or town election, and the returns thereof shall be made in conformity with the provisions of said general election laws. If, under the provisions of this act, an election shall be demanded wholly or in part in any incorporated city or town or any ward or precinct therein, to be held at the time of the city or town election in a year in which there is no general election, then the county clerk shall notify the proper authority of such city or town that such election has been demanded in order that such city or town authority may cause the official ballots to be prepared in accordance with the provisions of this act, and the city auditor, or clerk, or recorder, as the case may be, shall make return to the county clerk of the vote for and against prohibition in the several precincts of said city or town, and thereafter said matter shall proceed as in the case of a general election." Id. § 4922. If, at a local option election, a majority of all the votes cast in a county as a whole, or in a subdivision thereof, or in any precinct therein, is for prohibition, the county court must make an order declaring the result of the vote and absolutely prohibiting the sale of intoxicating liquors for beverage purposes within the prescribed limits. "The county court shall issue an order of prohibition for each and every subdivision as a whole voting 'for prohibition,' notwithstanding the county as a whole voted against prohibition. *** Thereafter it shall be unlawful to sell or exchange or give away any intoxicating liquor within the territory included in said prohibition order except as in this law provided." Id. § 4929. If any election shall have resulted in a majority vote for prohibition in any county as a whole, no election shall be held in such county upon that question before the day of the general election following. Id. § 4931. "When such second election results against prohibition, the court shall enter an order setting aside the previous order enforcing prohibition." Id. § 4932. "When prohibition has been carried at an election held for the entire county, no election on the question of prohibition shall be thereafter held in any subdivision or precinct thereof until after prohibition has been defeated at a subsequent election for the same purpose, held for the entire county, in accordance with the provisions of this act; nor in any case where prohibition has carried in any subdivision of any county shall an election on this question of prohibition be held thereafter in any precinct of such subdivision until prohibition has been defeated at a subsequent election held for such entire subdivision." Id. § 4933. It is believed that the foregoing synopsis of, and excerpts from, the local option law, are sufficient to show the general scope and purpose of the act, so far as involved herein. These provisions were rendered applicable to the entire state June 6, 1904, under the initiative power, and by complying with the terms prescribed could be put in force in any designated territory, not exceeding the area of a county. Hall v. Dunn, 52 Or. 475, 97 P. 811, 25 L.R.A. (N.S.) 193; Gay v. Eugene, 53 Or. 289, 100 P. 306.

When such statute is made effective in any incorporated city or town by a majority vote cast at an election regularly held, the power delegated to the municipality to license the sale of intoxicating liquors is suspended. Mayhew v. Eugene, 104 P. 727. As that law, after having been put into execution in any designated district, may be rendered inoperative, it necessarily follows that the power of a municipal council to license the sale of intoxicating liquors in any incorporated city or town, when suspended, could be revived by a majority vote regularly cast against prohibition. The charter of Joseph, on November 8, 1910, when section 2 of article 11 of the Constitution of Oregon was last amended, contained a clause delegating to the council of that city power to license the sale of intoxicating liquors. No amendment of its act of incorporation was therefore necessary, and no alteration thereof was undertaken. An ordinance was enacted, however, January 3, 1911, regulating the manner of licensing the sale of intoxicating liquors in the city, but this ordinance was based upon an express grant of power, theretofore delegated to the council.

An examination of section 2 of article 11 of the organic act, as it existed prior to November 8, 1910, will show that a municipal charter could not be enacted or amended by the legal voters of a city or town, so as to violate the Constitution or...