Rogue River courier. (Grants Pass, Or.) 1886-1927, 1911-01-20
LOCAL OPTION CASE.

to the liquor indictments were ar
gued by R. G. Smith, in behalf of de-
PENDANTS, and by District Attorney
Mulkey for the state.
The issue is whether or not the
local option liquor law is in force
in Grants Pass since the adoption OF
the home rule amendment to the
constitution. In other words, wheth-
er the defendants, Williams, Hearn,
Pilkington, Whitsett and Howell
can be tried now for violations COM
mitted prior to the adoption OF the
home rule amendment.
Counsel for defense argued that
the constitution Is self-operating,
and as soon as the home rule
amendment was proclaimed by the
governor that cities had the right
to license and to regulate the sa-
looms. 1t was contended that this
case was exactly the same as the
Medford case of Hall VS.. Dunn.
Counsel for defense cited another
case from Kentucky which was al
most Identical with the one tried
here. 1t was held in that case that
the state could not prosecute for vlo-
latlons of the law after the enact
ment of a general law taking a city
out of local option territory.
At the time the Medford charter
was amended local option was In
force in all Of Jackson county, in
Guiding the city of Medford, but af-
ter the amendment to said charter
in 1905 the prohibition order made
in June, 1905, in pursuance Of the
first local option election held in
November, 1904, was annulled by
the amendment to the charter.
In Hall VS.. Dunn, 50 Ore, page
4S6, the court said:
"Prior to the amendment of the
fundamental law Of Oregon mention
ed, the legislative assembly possess
ed plenary power to alter the char
ter Of Medford so as to take the ter
ritory embraced within the boun-
daries of that city out Of the provi-
sions of the local option liquor law"
OF course, II this could then be done
by the legislature, 1t can now be
done by an amendment to the con-
stitution."
District Attorney Mulkey contend
ed for the state that the home rule
amendment was not effective until
an election was held in Grants Pass
on the question Of prohibition, and
that such election could not be held
until November 1911, or November,
1912, and that the local option order
made in 1908 by the county court
under the local option law would
continue In effect within Grants
Pass. Therefore the defendants
could be prosecuted for such viola
tions.
The following was the brief on de-
murrer argued by r. G.. Smith, ESQ.,:
"The home rule amendment pro-
vides that the exclusive power over
the sale OF Intoxicating liquors Is in
vested in Incorporated towns and
cities. The amendment repeals by
Implication all laws In conflict with
It. Prior to the enactment OF this
amendment the city OF Grants Pass
had been incorporated and given the
power to prohibit, regulate and H.
cense the sale OF liquors within the
city, but that authority was suspend
ed by the voting Of prohibition un-
der the local option law. Under the
local option law the authority to
enact prohibition In the county is
vested In the voters In the county
BY majority vote prohibition can
be enacted throughout the county.
The home rule amendment gives the
exclusive power to regulate the H.
duor traffic within incorporated
towns to the municipality. The two
are absolutely inconsistent. The au-
thority to prohibit can not he vest
ed In both a municipality and the
county that embraces the municipal
ity Therefore the latter act i'm
pliedly repeals the local option law
IN relation to the vote by counties
and any order made In pursuance OF
suche election. One or the other
muct viaid