State v. Wright

Decision Date10 January 1887
Citation12 P. 708,14 Or. 365
PartiesSTATE v. WRIGHT and another.
CourtOregon Supreme Court

Appeal from Clatsop county.

T.A McBride, Dist.Atty., for the State.

Raleigh Stott and C.W. Fulton, for respondents, Wright and another.

STRAHAN J.

At the January term, 1886, of the circuit court of Clatsop county defendants were indicted for the crime of selling spirituous liquors in less quantities than one gallon without having first obtained a license therefor. The indictment sets out a license issued to the defendants by the city of Astoria, dated January 2, 1886, which purports to authorize them to sell spirituous liquors by retail in said city for one year, for which privilege they had paid the city of Astoria $200. The defendants demurred to this indictment for the following reasons: (1) The grand jury by which it was found had no legal authority to inquire into the crime charged, because the same is not triable within the county (2) that the facts stated do not constitute a crime; (3) the court has not jurisdiction over the subject-matter charged as a crime; (4) that the indictment contains matter which, if true, constitutes a legal justification and excuse for the crime charged. The court sustained the demurrer, and the state appealed.

If the license issued to the defendants was a justification of the sale charged in the indictment, then the ruling of the court below was correct; otherwise the same is erroneous.

By the act incorporating the city of Astoria (Sess. Acts 1876, pp. 115-124, § 38, subd. 4) the city of Astoria, through and by its common council, "has the power to license, tax, regulate, and restrain bar-rooms, drinking-shops, theatrical and other exhibitions, shows, public amusements: *** provided, that no law, or part thereof, authorizing any tribunal or officer of Clatsop county to grant tavern or grocery licenses shall apply to persons vending liquors within the city of Astoria." It is evident that the object of this proviso was to take from the county court of Clatsop county authority to grant liquor license, and the object of the other portion of the provision quoted was to confer the authority upon the city of Astoria. We therefore conclude that the license set out in the indictment was a complete justification, unless the other matters presently to be noticed rendered such license illegal. But counsel for the state in effect contend that these provisions of the charter of the city of Astoria have been changed by the act approved November 25, 1885, (Sp.Sess.Acts, 38.) That act is entitled "An act to amend section 2 of an act entitled 'An act to regulate the sale of spirituous, malt, and vinous liquors,' approved February 17, 1885." It is provided by said act as follows:

"Section 1. That section 2 of an act entitled 'An act to regulate the sale of spirituous, malt, and vinous liquors,' approved February 17, A.D.1885, be amended so as to read as follows, to-wit:

"Sec. 2. Every person obtaining a license to sell spirituous or vinous liquors shall pay into the treasury of the county, city, or town granting such license the sum of three hundred dollars per annum, and in the same proportion for a less period; or two hundred dollars per annum, and in the same proportion for a less period, for a license to sell malt liquors only: provided, that no license shall be granted for a less period than six months. And be it further provided that no license to sell spirituous, malt, or vinous liquors shall be granted by any incorporated city or town for a less sum than that hereinbefore specified, and that the levy and collection thereof shall be in conformity to the ordinances, respectively, of the cities or towns aforesaid, and the revenue thus collected shall inure to their exclusive use and benefit."

Counsel for the state claim that this act has superseded or repealed the laws and ordinances of the city of Astoria in so far as they fix different amounts for license than those contained in this act, and that the license set out in the indictment is illegal for that reason. This depends on the effect to be given to this act.

Counsel for the defendants claim that, so far as it applies to the incorporated cities and towns of the state, it is in conflict with article 4, § 22, of the constitution, which provides that "no act shall ever be revised or amended by mere reference to its title, but the act revised or amended shall be set forth and published at full length." If valid, the effect of this act is to amend the charter of every incorporated city or town in the state. It must be conceded that the legislature has the unquestioned right to create municipal corporations, and to change or alter them at pleasure; but the manner in which the power may be exercised is limited and regulated by other provisions of the constitution, applicable alike to all legislation whatever. The section of the constitution above quoted is not new, but is to be found in the constitutions of many of the states, and its objects and meaning are well understood. One of the objects to be accomplished by it was to give notice of the contents of the proposed act, and to prevent clauses being inserted of which the title gave no intimation, so that neither the members of the legislature nor the people could be misled by the title.

The first question to be determined, therefore, is whether this act does either revise or amend the charter of the city of Astoria. If it does, there can be no doubt it is in conflict with this provision of the constitution, because it is not claimed that article 4, § 22, of the constitution was complied with in its enactment. In legislation, amendment means an alteration in the draught of a bill proposed, or in a law already passed. Rapalje & L. Law Dict. tit. "Amendment." So that, if this act alters the legal effect of the charter of the city of Astoria in a particular already covered and provided for by the charter, then it is to be taken as an amendment of the charter. This is not a case where new and additional powers are added by way of supplement, but the change or alteration of an existing power, and I think it is too plain for argument that it is an amendatory statute.

Said this court in City of Portland v. Stock, 2 Or. 69: "Manifestly, then, section seven enlarges the powers previously possessed by the city government,--revises and amends them; and, if that section were valid, the city authorities would, after the fifteenth day of October, 1862, perform acts which would not have been lawful previous to that date. We conclude, then, that the act of 1862 is a statute which operates by way of amendment to the charter." And so the act was held to be in conflict with the constitution. In this case the court was considering an act by which the powers of the corporation were sought to be enlarged. In the case now before the court the attempted amendment is by limiting and restricting a corporate power vested in the corporation; but in principle there can be no difference. City of Portland v. Stock, supra, was cited and approved by this court in Dolan v. Barnard, 5 Or. 390.

If this statute is an amendatory one with respect to the charter of the city of Astoria, than it amends every municipal charter in the state, if valid. The effect would be that each charter must be read as if the provisions in the act above quoted were transferred and copied into the proper section relating to the licensing of the sale of liquors by the corporation; for such would be the legal effect. But this construction would violate section 20, art. 4, of the constitution, which provides: "Every act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title." It will not be contended that it would be competent for the legislature by one act to incorporate all the cities and towns in the state. If such an act would violate this provision of the constitution because containing more than one subject, would not an act which amends all the municipal charters in the state be open to the same objection? The same rule would have to be applied in each case.

King v. Banks, 61 Ga. 20, is a case involving this principle. There the legislature passed an act incorporating three separate and distinct corporations, or reviving by name three charters which had become obsolete, and the court held said act contained more than one subject, and declared it unconstitutional for that reason. Ex parte Conner, 51 Ga. 571, involves the same principle, and was decided in the same way.

Under a like provision in the constitution of Louisiana, from which ours was probably taken, it was held by the supreme court of that state that the second section of an act of the legislature, approved the tenth of March, 1857, entitled "An act relative to the payment of expenses incidental to the prosecution of criminals," which declared that the fines and forfeitures to be collected for the violation of the criminal laws of the state shall be paid into the state treasury, was unconstitutional, because it contained more than one subject. Parish of Bossier v. Steele, 13 La.Ann. 433.

The like ruling was also made in Smalis v. White, 4 Neb. 353; Cutlip v. Sheriff of Calhoun Co., 3 W.Va. 588; In re Blodgett, 89 N.Y. 392; Stewart v. Father Matthew Soc., 41 Mich. 67; Burlington & M.R.R. Co. v. Board Co. Com'rs Saunders Co., 9 Neb. 507; S.C. 4 N.W. 240; State v. Everage, 33 La.Ann. 120; Ex parte Thomason, 16 Neb. 238; S.C. 20 N.W. 312.

In construing a similar provision of the constitution of Louisiana, the supreme court of that state said: "The title of the act of 1868 is 'An act to amend the first section of an act to incorporate the town of Monroe, in the parish of Ouachita, and to provide for the...

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