Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-03
OREGON SUPREME COURT DECISIONS
c,ote Of Oregon V. Hearn, Josephine
o'"'' County.
Full Text Published by Courtesy F. Turner Reporter Of the
Supreme Court

c,,te Of Oregon V. Hearn, Josephine
o'"'' County.
otote of Oregon, respondent, V.
~ Hearn, appellant. Appeal from
10" 20 circuit court for Josephine coun-
tn' uon. f. NJ. Calkins, Judge. Ar
God and submitted May %, 1911. R.
Z smith. for appellant. B. F. Null
~ w. and H. d. Norton, for respond
G ont Moore, ]. Affirmed.
The defendant, Dan. Hearn was
,.jicted for the crime of selling in
iiioating liuuor committed in Jo-
nbine eoA county, October 29, 1910, in
',saIation of the local option law
,iSicb ,,S It is averred, was then in
sorce in the entire county. A plea
10 ps NOT guilty having been interposed,
~ 90 cause was tried on an agreed
statement sto of facts, in substance that
81 local options elections regularly
az So,d In that county as a whole June
il'iT zoos and November 10, 1910, a
y, ior,tv of all the votes respectively
lla nnst we're for prohibition and orders
ea' thot effect were duly made; that
W snch elections majority of the
d. 49, given in South Grants Pass pre-
49, 49, = division of that county, was
nojnd o,md prohibition; that no other
aiscdon for that purpose was ever
Seid in that precinct; and that defen-
dant sold intoxicating liquor in the
Cornorate limits of the City of Grants
pass. within such precinct, on the
dav and to the person specified in
the formal charge.
Based on such stipulation the
court was requested to direct a ver-
dict of not guilty on the ground
that the amendment of section 2 of
article II of the constitution of Ore
qon. which was ratified November s,
1910, repealed the local option law so
far as it was applicable to the City
of Grants Pass. The request was de-
MED and the defendant, having been
found guilty as charged, appeals from
the sentence which followed.
Moore, j.: 1t is maintained that
the amendment referred to impliedly
repealed that part of the local op-
tion law which made an entire coun-
ty the maximum limit of prohibition
thereby excluding from such terri
tory all incorporated cities and towns
therein, and that as the alteration in
the constitution contained no provi-
sion whereby violations of the pro-
hibition law committed within the
limits of such municipality prior to
the adoption of the amendment were
saved from the effect thereof, errors
we're committed in refusing to direct
a verdict of not guilty and in giving
the Judgment, which is brought up
for review.
The altered section of the organic
act now reads as follows: "Corpor-
ations 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 mu-
nicipality city or town. The legal
voters of every city and town are
hereby granted power to enact and
amend their municipal charter, sub
iect 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 there
in 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.'O L. o. L. p. XIV, The
parts included within parentheses as
I I q.
an exercise of the initiative power.
That certain provisions of the local
option law were impliedly repealed
and other clauses thereof were
amended in the same manner has al
ready been determined in constituting
the alteration of the organic act un-
der consideration. State V. Schluer
- Pac. -. 1t is believed that while