Daily capital journal. (Salem, Oregon) 1903-1919, 1911-12-11

CO., sehOy cause There
ioIe, that objection is without merit
Inc second question Is. whether
tne ordnance creates monopoly of
the liquor traffic in Vale. and is tbers
Oy rendered void. The petitioner =
not In position to raise thai oros
uon' There is no controversy here
as 70 his right to license. He was
Snai ised with the violation of the or
uhance in selling liquor within the
city without a license. and he con
only question the validity of that nro-
Vision of the ordinance which pro-
iuDlts the sale without a license
Inc third question is, whether the
ordnance as a whole is void. because
II creates a monopoly. If that pro-
vision of the ordinance is void n
does not thereby render void tbe in
dependent portions thereof that are
not void in themselves.
IN State v. Wiley, 4 Or 1874 1877.
MI Justice Macarthur quotes with an.
proval from Mr.. Sedgwicy as follows.
Ihe principle that a statute is void
only so far as its provisions are re-
pugnant to the constitution, that one
provision may thus be void and this
not anect other provisions of the
statute. has been frequently decided y
AND quoting from Fisher V. McGirr
u Gray 22) he says: "That where a
statute has been passed by the legis-
lature under all the forms and sane
tons requisite to the making of laws.
some part Of which is not within the
competency OF the Legislative power.
or Is repugnant to any provision of
the constitution, such part thereof
VIII be adjudged void and of no
avail, whilst all other parts of the
act not obnoxious to the same objec-
tlon. will be held valid and have the
force of law"
Mr.. Justice Burnett, in Fleischner
" Chadwick, 5 Or. 152, quotes with
approval from Commonwealth V.
Hitchings, 5 Grays Mass. Rep. 4S5:
That where part Of a statute is un-
constitutional, that will not authorize
the court to declare the remainder of
the statute void, unless all the provi-
sions are CONNECTED in subject mat
ter, depending on each other, operat-
ing together for the same purpose, or
otherwise so connected in meaning,
that it cannot be presumed that the
legislature would have passed one
without the Other"
Sec. / Of the ordinance forbids the
sale or barter of Intoxicating liquors
without first having obtained the IL
cense therefor and section provides
for the punishment of every person
who violates the provisions of Sec. 1.
These sections are valid and enforci-
Bile, independ emily of whether the
provisions placing the liquor busi-
ness in the hands of one person, are
valid, and which we deem is unnec-
essary to decide here.
AS to the fourth objection, that the
ordinance is invalid by reason of the
veto of Mayor Clark, it appears that
Mayor Clarke was out Of the city on
December 10. How long he had been
away or remained away does not ap-
pear 1t does not appear that the
president OF the council was properly
acting as mayor when ordinance No
6S was passed and approved by him,
By Sec S6 of the charter claws
1905, 1881 the PRESIDENT Of the coun-
Gil in the absence of the mayor has
the power to perform all the duties
of the mayor Therefore, in approx
ing ordinance No. 6S he was acting
within that power Mayor Clark did
not attempt to veto the ordinance
passed December 18th. The affidavit
OF the city recorder states that the
message Of the mayor vetoed the or
dinance passed by the council on the
18th day Of December, 1910, and 1t is
not contended by either plaintiff OF
defendant that that ordinance ever
became law and therefor it has nc
bearing upon the issue here. So far
as the record disCloses the ordinanC
passed December 10Th was regularly
passed, and was approved by the act
ing mayor and became law 30 days
after its Approval viz: January 10
1911.
We find no error in the ruling Of
the circuit court and the judgment is
affirmed.