Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-05
OREGON SUPREME
COURT DECISIONS
Continued from Page 81

Title XXXVI, Chap. I, Secs. 1920, ct
seq. This designation of local op-
tion" is recognized in State V. Lang
worthy, So Or. 303; 104 Pac. 424.
Viewing in this enactment a rising
storm of prohibition, some cities and
towns cast an anchor to the wind
ward, so to speak. by procuring
from the legislative assembly amend
ments to their charters in the form
the legislative assembly amendments
to their charters in the form of en-
actments subsequent to the adop-
tiOn of the local option law whereby
the municipality in question should
be exempt from the operation of that
law. other charters were amended
in the opposite direction so as to
make municipal management of the
liquor traffic expressly subject and
subordinate to the state law on
local option. OF the former class
the city of Medford is the most noted
example. The legislative assembly
by the act of February z, 1905, gave
1t charter power "to license, tax,
regulate or prohibit bar rooms,
drinking shops, and all
places where spirituous, malt or vim
Gus liquors are sold or kept for sale,
irrespective of any. general law of the
state on this subject enacCd by the
legislature or the people at large"
In Hall.v. Dunn, So Or. ATS, this
court, constituting that provision of
the Medford charter, held that, ex-
cept as restrained by the constitu-
tion of the state, the power to enact
statutes was vested in the legislative
assembly were each repository of
statute making powers, coordinate
in authority, and that the new Med
ford charter, being the latest ex-
preston of the legislative will, must
prevail pro tanto over its former ut
terances in the local option law.
Following the situation thus
created, the people put an end to the
activity of the legislative assembly
in the indiscriminate and diverse
amendment of municipal charters by
adopting at the general election in
June, 1906, the 'change in the orig
inal section 2 of article XI OF the
constitution so as to make 1t read as
first quoted above. The manifest
purpose of the people in the passage
of this constitutional amendment was
to prevent the coordinate branch of
the statute making power from pass
ing local laws, the effect of which
was to evade the general laws initi-
ated by the people. AS the people
are supreme and exclusive in the
power of constitution making and
have been from the beginning COR.
Const., Art. l, Sec. 1 that amend
ment marked the terminus of special
legislation in the direction noted.
The next step in the contest be-
tween the people at large and re-
stricted localities as to the exercise
of legislative power is described in
Baxter V. State 40 Or. 353. Coos
county, as a whole at local option
election on the first Monday in. June,
1906. gave a majority against pro-
hibition, but West Coquille precinct,
comprising territory lying partly
within and partly without the limits
of Coquille City, returned a majority
at the same election in favor of pro-
hibition.
The 1906 revision of the section of
the constitution in question, after ex-
cluding the legislature from that
function, had said that "the legal
voters of every city and town are
hereby granted power to enact and
amend their municipal charter, sub
ject to the constitution and criminal
laws of the state of Oregon" Soon
after the result of the local ont'on
election was declared and West
Coquille precinct was made dry Co
uuille City, acting under this pro
vision, amended it's charter so as to
assume the power to license the sale
of intoxicating loquor within its
limits. 1t followed this by enacti1e
an ordinance on the subject and IN
pursuance thereof issued to Baxter a
license authorizing him to sell liquor
at place at once within the city
limits and within the boundaries OF
the dry precinct of West Coquille
He sold liquor at that place and
claimed Immunity from prosecution
under the local option law by reason
of what the city had done in the way
of amending its charter and hcens
ing him to sell liquor. On his appea
in proceeding to review his con
viction of violating the local option
law, this court held that law to be
criminal law within the terms Of tht
constitution and that as such 1t mus
prevail over the amendment of the
citv charter where the two We're II
conflict, even within the city limits
This traces the progress of events tC
the election of November, 1910 anf
the adoption OF the latest revision oi
section Q of article XI of the con
stitution, otherwise known on the
hustings as the Home Rule Amend
ment."
The contention of the defendant Is
that this section as 1t now stands re-
peals the local option law so far as
it contemplates participation by rura
voters in local option election
designed to affect the sale of liquor
in an incorporated city or town al
though the election be called for the
county as a whole. In other words
he claims that the direct result OF
the change in the section is to divide
the territory of every county into two
classes, rural and urban, and tC
destroy local option elections In any
county as whole leaving the near
est approach to that kind of an elec,
tion to be such as might be arranged
among the rural voters only. Tc
support this contention there are nc
words Of express repeal to be touno
In the section under consideration
and that result can be achieved only
by Implication. AS Justice Mcbride
forcibly says in State rel'v Malheul