Daily capital journal., June 05, 1911, Page PAGE SIX, Image 6

flGE SIX-
DAILY CAPITAL JOCRXAU eAL.K.4. OREGON. MOXDAV, JO'E 5, 1911.
OREGON SUPREME
COURT DICISIONS
(Continued from Page 3.)
Title XXXVI. Thap. 7, Sees. 4920, et
seq. Tnis aesipnation or "local op
tlon" is recopnlzed In State v. Lang
worthy, 55 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 Bpeak, 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 7, 1905, gave
It charter power "to license, tax,
regulate or prohibit bar rooms,
drinking shops, and all
places where spirituous, malt or vin
ous liquors are sold or kept for sale.
Irrespective of any general law of the
state on this subject enac) d by the
legislature or the people at large."
In Hall.v. Dunn, 52 Or. 475. this
court, construing that provision of
the Medford charter, held that, ex
cept as restrained by th constitu
tion of the state, the power to enact
statutes was vested In the legislative
assembly were each a repository of
statute making powers, co-ordinate
in authority, and that the new Med
ford charter, being the latest ex
pression 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 nt the gpneral election In
Tunn lOflfi -thn'rlian.t'e Iti the orig
inal section 2 of article XI of the
constitution so as to make It read as
first quoted above. The manifest
purpose of the people In the passage
of this constitutional amendment was
to prevent the co-ordlnato 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 the1 people
are supreme and exclusive In the
power of constitution making and
have been from the beginning (Or.
Const., Art. I, Sec. 1) that amend
ment marked the terminus of special
leg'slation in the direction noted.
The next step lri the contest be
tween the people at large and re
stricted localities as to the exercise
of legislative power la described In
Baxter v. State, 49 Or. 353. Coos
county, as a whole, at a local option
election on the first Monday In- June,
1906, gave a majority against pro
hibition, but West Coqullle precinct,
comprising territory lying partly
within nnd partly without the limits
of Coqullle 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
Coqullle precinct was made dry, Co
qullle City, acting under this pro
vision, amended Its charter so as to
assume the power to license the sale
of intoxicating loquor within Its
limits. It followed this by enact'ng
an ordinance on the subject and In
pursuance thereof Issued to Baxter a
' license authorizing him to sell liquor
at a place at once within the city
limits and within the boundaries of
the dry precinct of West Coqu'lle.
He soid liquor at that place nnd
cltt'med Immunity from prosecution
under the local option law by reason
of what the city had done In the way
of amending Its charter and licens
ing him to sell liquor. On his appeal
in a proceeding to review his con
v'ctlon'of violating the local option
law. this court hold that law to be a
criminal law within the terms of. the
constitution and that as such It must
prevail over the amendment of the
city charter where the two were In
conflict, even within the city limits.
This traces the progress of events to
the election of November, 1910 and
the adoption of the latest rev'slon of
section 2 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 It now stands re
peals the local option law so far as
it contemplates participation by rural
voters In a local option election
des'gned 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 to
destroy local option elections In anv
county as a whole leaving the neur
it appronch to that kind of an elec
tion to be such as might be arranged
among the rural voters only. To
support th'8 contention there are no
words of express repeal to b found
in the section under consideration
and that result can be achieved only
by implication. As Justice McBrlde
forcibly says in State rol'v. Malheur
County Court, 54 Or. 255, "a repeal
by implication only arises when both
statutes cannot be reconciled, with
each other by any reasonable Inter
pretation, or where there la a clear
intent Bhown by the terms of the
Intter act that it Rhall supersede the
other. Repeals by Implica
tion are not favored, and repugnancy
between the statutes should be clear
before a court Is Justified In holding
that a later statute impliedly repeals
on earlier one." In sound reason this
ru'e applies here, although the al
leged irreconcilable repugnance nec
essary to support a ropeal of the form
er Statute by implication arises, If at
all, between that enaotment and the
constitution. This is logical because
both the statute and the constitution
came direct from the people by pre
cisely the game initiative process and
the people cannot presume to say one
thing in one Instrument and directly
the opposite in the other. Such a re
sult should be Indicated by unmis
takable terms or be supported by the
clearest necessary implication or be
discarded as unsound.
Moreover, In the decision of ques
tions about a supposed conflict be
tween a statute, and a consltutlon. In
which, of course, the former must
yield, courts will not declare the stat
ute unconstitutional unless the two
are palpably antagonistic, every doubt
being solved and every Intendment be
Ing given In favor of the statute.
This rule Is sustained by an unbroken
line of dec'sions of this court from
Cline vs. Greenwood, 10 Or., 230.
through Cook v. Port of Portland. 20
Or., 580; State v. Shaw, 22 Or.. 287:
Simon v. Northrup, 27 Or., 487, and
other cases down to State v. Cochran,
105 Poc., 884, In which the very exist
ence of this court as at present con
stituted was upheld by the applica
tion of this Bdf-same principle of con
struction. Again, "the rule of statutory con
struction Is a familiar one, that all
acts relating to the same s -bject are
In pari mater'a and are to be con
strued as though their several pro
visions were Incorporated together
and constituted one entire act.
Equally well settled in another rule
of construction and that is that ew
ery word In a statute must bo given
Its proper meaning and effect, If pos
sible. And our code, L. O. L.., sec
tion 715, declares another rule quite
as important and salutary, as fol
lows. 'In the construction of a
statute or instrument, the office of
the Judge 's simply to ascertain and
declare what Is. In terms or In sub
stance, contained therein, not to in
sert what has been omitted', or to
omit what has been inserted: and
where there are several provisions
or particulars, such construction Is.
If possible, to be adopted, ss will
give effect to all.' " Justice Strahan
In Miller v. Tobin. 16 Or.. 540-556.
The citadel of the defense here Is
based upon the clause; 'and the ex
clusive power to license, regulate,
control or to suppress or prohibit
the sale of Intoxicating liquors there
in Is vested In such municinality."
An outwork of this citadel depends
upon the words: "wlth'n its limits."
In the succeeding clause, the conclu
sion sought to be deduced being that
although 'the local option law was
hitherto a valid, living force through
out the state at largei, yet by virtue
of these worrt when it comes to a
city boundary the law Is shorn of
its sanction as a stato law and with
in the limits of the town because of
a mun'clpal regulation. These posi
tions ignore the remainder of the
section. "The ' "exclusive power''
mentioned means nothing more than
was already vested in every corpor
ate city or town by the section under
examination prior to the amendment
of 1910. The people, by mandatory
language, had forbidden the legisla
tive assembly to meddle In any way
with municipal charters, and had
delegated that class of leg'slation to
"the legal voters of every city and
town Bubject to the constitu
tional and criminal laws of the state
of Oregon." The city of Coqullle at
tempted "within Its limits" to legis
late In Its own way and amend its
charter on the subject in question
here, and this court In. Baxter v.
State, supra, overturned the amend
ment of the charter, saying, In sub
stance, to the municipality: "Your
legislation Is void because it Is in
conflict with a certain criminal law
of the state, to which law you are
subject, namely, the local option
law." But for the clause making
them "subject to the constitution and
criminal laws of the state" the legal
voters of that city had as "exclusive
power 'as could be conferred upon
them, and there was nothing superior
to them except the inherent power of
the people, which is declared In the
first section of the constitution, and
which is now and always has been
the ultimate force pervading and up
holding the government. Under these
condUIons, alike on principled those
now before us, this court in the Bax
ter case defined what It meant for a
municipality to be "subject to the
constitution and criminal laws of the
state.' The substance of the defini
tion Is that tho criminal laws of the
state, Including this particular local
option law, 'In all its parts, have un
diminished authority over every city
or town, even "within Its limits."
notwithstanding the municipality's
otherwise "exclusive power." The
words thus construed and applied as
a limitation upon "exclusive power"
existing then as much as now are re
tained In their former position In the
revised section and unon the prin
cipled stare decisis, If for no other
reason, should have the same force
as they had before. ,
Tho words "within its llm'ta" do
not change the conditions In exist
ence before the revision of 1910
They can only serve to intensify
what has already been said In gener
al terms that city boundaries pre
sent no obstacle to the supremacy of
the criminal laws of the- state over
any Internal regulation of a munici
pality. Where elre than "within In
Its limits'' could a city be subject to
either the constitution or any crimin
al law of the state? The city of
Joseph is not subject to any law in
Grant county or Jackson county, be
cause the city does not exist there.
Neither Is it subject to any law out
side of Its limits, even In Wallowa
county, for the same reason. Local
ity is the essence of municipal exist
ence, the law of Its being beyond
which it cannot pass. Being a roe r
department or agency of the state, In
the language of Straw v. Harris, 54
Or. 424, It has no authority as a gov
ernmental agency outside of its lim
its, and as such, exists only within
its boundaries. In no place what
ever, except "within Its limits." has
It ever been or can it be subject to
any law of the state. While It can
not, In Its governmental capacity,
operate outside its limits, external
agencies and laws In many other
cases, as well as In this particular
Instance do control affairs within Its
limits. Further, by way of Illustra
tion: the result desired by the do
fondant might be attained if Instead
of the last clause the people had em
ployed some such words as thess:
"But such municipality shall, with
in Its, Jlmlts, be exempt from the pro
visions of the local option law as af
fected by votes outside those limits."
It Is Illogical to say that the same
desired) result will be worked out by
using the word! "subject" instead of
the word "exempt,' as put in the Il
lustration. The two words are an
tonymnB, yet. the defense would em
ploy either for identacally the same
purpose. It is inconceivable bow the
word "subject" when apjplledl ngen
eral terms to the constitution and
all criminal laws of the state shall
mean one thing In limiting the ex
clusive power of a municipality, and
the nonly 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 defendant's 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 cer
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 it to the fullest extent
unless restrained by some exception
qualifying the terms of the grant and
defeating the ' defendant's major
premise. This exception Is found
clearly defined in the clause: "but
such municipality shall within its
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, 52 S. W. 748, 752;
Stonestreet v. Harrison, 15 Ky. 161,
163; First Nat Bank v. Foster, 61
Pac. 466, 467, 54 L. R. A. 549. 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
lstratlon 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 Its
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 lim
its."
These provisions as well as others
of the local option law are repealed
and set at naught, If we would heed
the arguments of defendant's coun
sel, 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
ple interposed the constitution and
criminal laws of the state as a quali
fication of and limitation upon the
otherwise "exclusive power" of mun
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. It 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 masterly opinion inStraw v. Har
ris, 54 Or. 424, Justice King made a
strong case against this tendency
and his reasoning applies here with
great cogency. In construing a law,
courts will consider the mischief de
signed to be remedied. Toomey v.
Dunphy, 86 Ca. 639; Soby v. People,
134 111. 66; Swan v. Mulherln, 67 111.
App. 77. In the light of that rule
this view of the constitution Is sup
ported by a sound financial reason
independent of all preaching morals.
It Is a well 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 addiuch to the burden of tax
ation. If,' In analogy to the frank
pledeg system of the common law,
every Incorporated municipality,
large or small; was responsible for
the expense of such litigation origi
nating "within its limits," it might
well be given free rein under the
"exclusive power" phrase. But the
city enjoys the revenue arising from
the liquor traffic and pays none of
the resultant expenses. Hence the
people at large have said: "If we
must foot the bills while the town
takes the revenue, by our local op
tion law, with Its county unit, we
will retain control of this matter as
sgalnst the town even "within its
limits."
There Is nothing in the argument
that the construction here indicated
means that after all the debates and
labors on this question at the last
election nothing was accomplished
but a restatement In detail of what
was before enunciated In general
terms. It Is not the first time such
a result has occurred. We are not
to presume that because the people
speak more than once on a given
subject, they necessarily speak dif
ferently every time, or with a double
tongue. Statutes are often re-enacted
in which case they are not con
sidered as new laws but relate back
to the former law on the same sub
ject 'as against intermediate legisla
tion. Allison v. Hatton, 46 Or. 370;
Renshaw v. Lane County Court, 49
Or. 626.
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The reasoning of the learned cir
cuit judge who heard this case is
sound. The construction which he
gave the section in question Is easy
and natural and avoids all the con
fusion that would attend a contrary
course, for the local option law, un
less accepted as a whole, will be a
misfit wherever applied. There can
be no half way ground about the ad
ministration of this law. It either
goes to the city as an entirety under
its exclusive power or It remains
where it was originally vested and
stands as a vital and controlling ex
ception to what the defendant main
tains is an unlimited power bestowed
upon the city.
The people first made known their
will on this subject bjMhelr local op
tion statute which all understood, as
It was Intended, to apply to the
whole state by counties or subdivi
sions or precincts thereof regardless
of city boundaries. Recognizing this
as the true construction, Medford
and some other towns had their char
ters amended so as to overcome the
statute "within their limits" which
could be and was legitimately ac
complished by the latter as against
the former statute. The people re
sponded in their second utterance on
the subject by declaring in general
terms in the first amendment to the
section In question that although the
voters of a municipality might enact
or amend their charters exclusive of
the legislative assembly, yet the ex
ercise of the power thus conferred
was subject to the constitution and
criminal laws of the state. This
court decided that this amendment
made the local option law paramount
to any charter or municipal regula
tion even within the limits of the
municipality. The people, speaking
for the third time, have crystallzed
the law as thus declared Into consti
tutional form and have not only re
peated the very words they said be
fore, but have also particularly spec
ified by name the local option law as
one of those to which every munici
pality shall be subject. The people
have not stultified themselves but
have spoken the same way every
time on this matter and their man
date should be obeyed. For these
reasons the judgment should be af
firmed. THE SALEM, FALLS Cm & WEST
ERN RAILWAY COMPANY
SUSDAY EXCURSION RATES
Commencing Sunday, June 4, 1911,
and until and including Sunday, Oc
tober 1, 1911, the following Special
Round Trip Fares will be in effect,
between stations named below, on
Sundays only:
Between
West Salem and Black Rock. .. .$1.25
Dallas and Black Rock 75c
West Salem and Falls City $1.00
Dallas and Falls City 5(lc
West Salem and Dallas 75c
Falls City and Dallas 5(tc
Black Rock and Dallas 75c
Dallas and West Salem 75c
Falls City and West Salem $1.00
Black Rock and West Salem. .. .$1.25
Children Children of half fare
age, one-half of the adult fare.
Date of Sale Sundays only.
Limit Tickets will be good for
continuous passage In each direction,
good only on date of sale.
Baggage No baggage will be
checked on these tickets.
Issued May 23, 1911, Dallas Ore
gon. " Effective June 4, 1911.
LOUIS GERLINGER, JR.,"
General Manager.
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The best test we know for bread
is toast it. Toasted bread shows
its poor qualities and defects in
stantly. Poor bread, toasted, is
either dry, chaffy, tasteless, or it
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Table Queen Bread
When toasted, is crisp without
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Roth
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410-416 State St.
ocery
Phone 1885-1886
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II
Jintice of Intention to Improve Cen
ter Street
Notice is hereby given that the
common council of the city of Salem,
Oregon, deems it expedient and pro
poses to improve Center street in
the city of Salem Oregon, from the
west line of 14th street to the east
line of Liberty street, at the expense
of the adjacent and abutting proper
ty within said limits and according
to the plans and specifications adopt
ed for said improvement and on file
at the office of the city recorder,
which said plans and specifications
are hereby referred to for a more
specific and detailed description of
said improvement, and are hereby
made a part of this notice.
This notice is published for ten
(10) days pursuant to the order of
the common council and the date of
the first publication thereof is the
first day of June, 1911. Remon
strances may be filed against said
Improvement within ten (10) days
from the last publication of this no
tice and in the manner provided by
the city charter.
CHAS. F. ELGIN,
6-1-llt City Recorder.
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