Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-05
OREGON SUPREME COURT DECISIONS
Text Published by Courtesy F. A. Turner ReDOrtor ~ M
Supreme Court
state of Oregon v. schIuer, Wallowa
County.

State of Oregon V. schluer, Wallowa
County.
State of Oregon, respondent, V. e.
r. Schluer, appellant Appeal from
tbe circuit court for Wallowa county.
Hon ]. w. Knowles judge. Argued
and submitted at Pendleton, May 2,
1ot1. E. E. Coovert, for appellant.
r S. Ivanhoe, for respondent.
Moore, J. Affirmed.
The defendant, e. T. Schluer, was
charged with the crime of selling in
toyicating. liquor in Wallowa county,
March 10, 1911, in violation of the
local option law which, 1t is alleged
was then in force in the entire coun-
ty. A plea of not guilty having been
entered, the cause was tried upon an
agreed statement Of facts in sub
stance that the city of Joseph is duly
incorporated and by its charter,
which was in force November 8,
1910, and thereafter continued effec-
tive, is authorized to license the sale
of intoxicating liquors; that Joseph
precinct includes such municipality
and adjoining territory, about 80 per
cent of the legal voters Of which re-
side in the city; that local option
elections were regularly held in the
entire county June 10, 1906, June G.,
1908, and November 8, 1910, and a
majority of all the votes cast having
respectively been in favor of prohi-
btion, orders to that effect were duly
made; that the ballots cast on that
question in such precinct at the first
election were II for prohibition and
81 against 1t, at the second, 122 ap-
proved the measure and 116 rejected
it, and at the third, 81 favored the
proposition and 165 opposed it; that
no other prohibition election was
ever held in such precinct or in the
city; that on January 8, 1911, an or
dinance was duly enacted whereby
the sale of Intoxicating liquors was
authorized by the city, pursuant to
which a license was issued to the
defendant who, relying thereon, sold
intoxicating liquor within the muni-
cipal limits at the time stated and to
the person named in the charge.
Based on such stipulation, defen-
dant's counsel requested the court to
direct verdict of not guilty, for
that the local option law was not in
force in the city of Joseph by reason
of the amendment of section 2 of ar
ticle II Of the constitution of Oregon,
ratified November s, 1910, and that
the license relied upon afforded a
complete defense to the action. The
request was refused and the jury
instructed that the city, under the
facts stated, was powerless to au-
thorize the sale of intoxicating IL
quors. The defendant, having been
found guilty, appeals from the re-
sulting Judgment.
Moore, j.. The question to be
considered Is whether or not the
change of the organic law referred to
relieved the city of Joseph from the
order of prohibition in force in Wal
Iowa county as whole so as to per-
init the municipality, pursuant to its
charter and an ordinance, to license
the sale of intoxicating liquors with
IN its limits when no local option
election was ever held in the city
alone but in precinct that included
such municipality. The altered Sec
ton is as follows:
Corporations may be formed un-
der general laws, but shall not be
created by the Legislative assembly
by special laws. The legislative as
sembly shall not enact, amend, or re-
peal any charter or act of incorpor-
alton for any municipality, city, or
town The legal voters of every city
and town are hereby granted power
to enact and amend their municipal
charter, subject to the constitution