Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-15
State OF Oregon '. Hearn, Josephine
County.


Dan Hearn, appellant. Appeal from
the circuit court for Josephine coun-
ty. Hon. F. NJ. Calkins, judge. On
petition for rehearing. Smith &
Beckwith for appellant. B. F. Null
key for respondent. A King Wilson
Amicus Curiae Moore, ]. Denied.
Moore, ]. In a petition for a re-
hearing it is insisted by defendants
counsel that affirming the judgment
rendered in this cause is tantamount
to judicial legislation, in that the
opinion announced herein attempts
to give to the words used in the
amendment of section 2 or article IL
of the constitution an unusual mean
ing which is unwarranted by, and
cannot be gathered from, the con-
text; and that in constituting a clause
of an organic act a court has no right
to disregard the meaning of plain
and unambigious language, under
the guise of discovering the intent of
electors in Adopting clause of
fundamental law, or to give an inter-
probation in such a case that does
violence to the Ordinary meaning of
the words employed.
In a brief submitted by counsel
who appear as amicus. curiae it is
asserted that the people of Oregon
cannot by an amendment of the con-
stitution deprive the state of eXclu-
sive authority over, and control of
the liquor traffic and confer such
power upon an incorporated city or
town, and in support of the doctrine
thus announced attention is called to
the case of Straw V. Harris, "a Or
424, where in constituting an act of
the legislative assembly, authorizing
the incorporation of ports, (Laws Or
1909, p. 7S) it was held that the state
may not surrender its sovereignty to
municipalities to the extent that IT
must be deemed to have perpetually
lost control of them.
Considering the qeustions stated in
an inverse order, the declaration
seems somewhat incongruous that q
clause of the constitution is uncon-
| stitutional. Some part of an or
| ganic act may appear inconsistent
when compared with other portions
but the contradictory provisions
when challenged in a suit or actor
in which they are necessarily in
volved should be so interpreted as tC
give effect to each as far as possible
The authority to sell Intoxicating
| liquors is not an exercise of common
right, but is a special privilege which
| the state, under its police power
may grant or deny at its pleasure
This power may be employed by thu
state or delegated by it to municipa
corporations which agents can us,
the power in the manner and to thu
extent specified in the enactment con
ferring the authority, 1t is an axiom
! that no creature can ever become
greater than it's creator and as
corollary deducible from this princi
pie the rule is universal that the po
lice power cannot be bargained ava,
in such a manner as to place it be
yond recall.
Through the amendment of the sec
ton of the organic act under consid
Grafton vests in cities and towns "th
exclusive power to license, regulate
control, or to suppress or prohibi
the sale of intoxicating liquors there
in" such delegation is valid onl
while the clause of the Fundamental
law remains intact. 1t is possibl
for the people of Oregon at the mex
general election, by initiative peti
tions, to repeal such provision and il
lieu thereof to amend the constitu
ton so as to prohibit the manufac
ture or sale of intoxicating liquor
for beverage purposes The polio
power is therefore not bargaine
away but temporarily delegated t
municipal corporations as agents O
the state to be employed by the lat
ter in the manner prescribed unit
countermanded by the authorit
which bestowed it.
The word exclusive" as used i
the amended section of the funda
mental law, when construed in con
nection with the entire languag
4 there employed, evidently means tina
an incorporated city or town shall
until otherwise ordered, be the sol
agent of the state in exercising tn
police power respecting the contrC
and sale of intoxicating liquors. Tn
further clause, but such municipal
ity shall within it's limits be subjeC
to the provisions of the local optic
law of the state of Oregon" pre-
scribes the manner of employing tn
power delegated, which enactment
a limitation upon an exercise of tn
authority. Such provision of the cor
stitution is not subject to the crit
cism indulged in Straw v Harris, ST
pra The case at bar does not il
volve the Interpretation of a statut
but the construction of a clause
the constitution the amendment
which does not trench upon a reput
lican form of government which
guaranteed (Const U. S. Art. 4 Sc
A nor does it encroach upon the lin
= itations imposed by the federal COZ
= stitution upon the powers of tn
states. Id Art. l, Sec 2.
We conclude therefore that tf
people of Oregon could lawfully de
egate to an incorporated city or tow
the exclusive" power to license, Ia
S regulate, restrain or prohibit the sa
: of intoxicating liquors, for beverae
: purposes, within its territorial limit
An examination of the opinion al