Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-05

ploy either for identacally the same
purpose. II is inconceivable how the
word Subject" when applied ngen-
eral terms to the constitution and
all criminal laws of the state shall
mean one thing in limiting the ex-
elusive power Of a municipality. and
the monty a few lines further on in
the same sentence mean less or the
opposite, when used for the same
purpose specifically applied to a par
ticular criminal law. The word loses
none of its force by being repeated
and given intensified application.
The logic of the defendants con-
tention is that the words exclusive
power" are to be construed in their
unrestricted sense. At least he main
tains that the effect of the amend
ment is to repeal the local option law
so far as to exclude the rural voters
of the county from all elections
which would otherwise affect the
liquor traffic in the city. With this
as his major premise established on
the day of the election, the minor
premise, the wet vote in Joseph, was
made good at the same time and his
exemption from prosecution ought to
| follow as a conclusion with the GER
tainty of a syllogism. If those words
are to be thus construed, they carry
with them the authority to establish
procedure and penalties and other
things necessary to the proper ad-
ministration of the power, all in the
name of the city; for otherwise the
grant is barren and of no force. The
power was not conferred without the
right to use 1t to the fullest extent
unless restrained by some exception
qualifying the terms of the grant and
defeating the defendants major
premise. This exception is found
clearly defined in the clause "but
such municipality shall within it's
limits be subject to the provisions of
the local option law
The argument Of the defendant is
fallacious in its major premise. The
word .but" here means that what
follows is an exception to that which
has gone before and is not to be con-
trolled by it," Western Union Tel.
Co. V. Harris, So s. W. 74S, 752;
Stonestreet " Harrison, 15 Ky. 161,
1863; First Nat. Bank v. Foster, 81
Pac. 466, 467, 81 L. R. A. $40. The
clause which it introduces means
that the town is subject to all of the
provisions of the local option law
and not to only part of them. They
include the county unit, inclusion of
the whole or any part of any city or
town in a subdivision, county admin
istration of the elections and state
prosecutions of its violations. In the
employment of the words provisions
of the local option law" no exception
whatever of any of those provisions
is made. Hence they must all be in
cluded. Restrained by L. o. L. Sec.
| 715, we cannot so construe the
amendment as to include some of
them and omit others for it would
emasculate the law to which in it's
every provision the people by their
constitutional amendment have re-
peated all cities and towns shall be
subject and that too in the only
place in which any of them could be
thus subjected, viz: within its lin
it's"
These provisions as we'll as others
of the local option law are repealed
and set at naught, if we would heed
the arguments of defendants coun-
sci, all without a word expressing
repeal but on the contrary in the
very face of the constitution saying
that these municipalities shall be
subject to the provisions of this very
law, none of which provisions are
excluded. Such a conclusion re-
verses the rule against favoring re-
peals by implication and overturns
the oft repeated decisions of all
courts that every intendment will be
used to uphold a statute when it is
attacked for alleged conflict with the
fundamental law The sum and sub
stance of the revision is that where
as before in general terms the peo-
pie interposed the constitution and
criminal laws of the state as a quail
fication of and limitation upon the
otherwise exclusive power" of mum
icipalities to enact and amend their
charters, now in the revision, they
have gone into details and have not
only repeated their former injunction
but have also particularly specified
this identical criminal law as one of
those to which municipalities must
be subject. 1t means that the whole
people have not yet abandoned their
supreme authority over all the state
and do not intend to allow their gov
ernment of the state to disintegrate
entirely into the village system. In
his mastery opinion in STRAW V. Har-
ris, 81 Or. 424, Justice King made a
strong case against this tendency
and his reasoning applies here with
great cogency. In constituting law
courts will consider the mischief de-
signed to be remedied Toomey v
Dunphy, Sc Ca. 639; Soby V. People
1874 Ill. Sc; Swan v. Mulherin, 81 Ill
App. n. In the light of that rule
this view of the constitution is sup
4 ported by a sound financial reason
Independent of all preaching morals.
1t is we'll known fact, within COM
mon observation, that somewhere in
the analysis of almost every criminal
prosecution, liquor appears as a fac
tor. The county as a whole pays the
expenses of such litigation on both
sides from its inception before the
committing magistrate to the final
Judgment of the supreme court
These add much to the burden of tax
alton. II, in analogy to the frank
pledeg system of the common law
~ twa Al -