Daily capital journal., December 26, 1911, Page PAGE SIX, Image 6

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1 1 VI
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OREGON SUPREME
COURT DECISIONS
(Continued from Page 3.)
the warrant Is delivered takes prop
erty under the warrant he must re
tain it In his possession, subject to
the order of the recorder to whom
he is required to return the proceed
ing. Sec 9. A search warrant must be
executed ad returned to the recorder
within 10 days from its date, unless
the recorder, before the expiration
of such time, shall by Indorsements
tlinron, extend the Mine (or Ave days.
After the expiration of the time here
in prescribed, the warrant unless ex
ecuted Is void.
Sec. 10. The officer must forth
with return the warrant to the re
corder and deliver to him a written
Inventory of the property taken made
publicly or in the presence of the
person from whose possession it was
taken, and of the applicant for the
warrant, If they be present, 'I A. B.,
the officer by whom this warrant was
. executed, do awear that the above In
ventory contains a rue and detailed
account of all the property taken by
, me on the warrant"
8ec. 11. The recorder inuBt there
upon, if required, deliver a certified
copy of the Inventory to the person
from whose possession the property
was taken and to the applicant for
the warrant.
Sec. 12. If the person from whose
possession the property was taken,
cotrovert the grounds of issuing tho
warrant, the recorder must proceed
to examine the matter by taking tes
timony in relation thereto.
Sec. 13. If It satisfactorily appear
that the property taken is not the
same property as that described In
the warrant, or the there is no prob
able cause for believing the existence
of the grounds on which the warrant
was Issued, the recorder must cause
it to be restored to the person from
whom It was taken.
Sec 14. When person charged
with violating any provfston of any
ordinance of the city of Woodburn,
Oregon is supposed by the recorder
before whom he I' brought to have
upon his person a dangerous weapon
or anything which may be used as
evidence of the commission of a vio
lation of any provision of any ordi
nance, the recorder may direct him
to be searched in his presence and
direct the weapon or other thing to
be retained subjec' to his order. ,
Sec. 15. When any goods or things
are taken on a' search warrant the
manufacture, sale or use of which
are prohibited by any ' of the ordi
nances of the city of Woodburn, Ore
gon, the recorder before whom thoy
are brought must direct the officer to
destroy them, which direction the of
ficer must obey, and make return
thereof on the warrant.
Sec. 1$. Inasmuch as there is ur
gent need of the foregoing ordinance
for the immediate preservation of the
peace, health and safety of th city of
Woodburn, Oregon, an emergency . is
hereby declared to xts(, and this or
dinance shall talfe effect and be in
full force from and after its appro
val by the mayor."
On February 11, 1911, Ordinance
No. 300 was adopted. It Is as. fol
lows: "Sec. 1. That It shall be un
lawful for any person, corporation
or common carrier, or any agent of
any person, corporation or common
carrier to deliver within the corpor
ate limits of the city of Woodburn,
Oregon, any spirituous, vinous, fer
mented or malt liquors or hard cider
or near beer to any person, firm or
corporation, except to a registered
pharmacist. Any person, or agent of
any person, firm, nr corporation or
common carrier violating any of the
provisions of this section, upon con
viction thereof before the recorder's
court of the city of Woodburn, Ore
gon, shall be fined not less than $2."
nor more than $100 and In default of
the payment of such line be commit
ted to the city Jail until such One be
paid, not to exceed one day for each
two dollars of auch fine.
Sec. 2. Inasmuch as the city of
Woodburn Is In urgent need of the
foregoing legislation for the protec
tion of the peace, health and safety
of the city this ordinance ahall be
In full force and effect from and af
ter Its approval by the mayor."
The complaint alleges that, pursu
ant to ordinance No. 287, Stengel, the
recorder, has repeatedly convicted
and fined the officers of the club and
that their cases art now pending in
the circuit court upon appeal; that
under ordinance 309, upon the com
plaint of the mayor and upon a war
rant Issued by the recorder, an or
ganized toTce of pol'ce officers and in
formers with force and violence en
tered the club rooms and ejected the
officers and members; seized the
property and effeots of plaintiff; took
the same into the possession of the
city; and threaten turther proceed
ings of a like nature, whereby plain
tiff will be vexed and annoyed and
Its property rendered valueless; and
it and its officers will be vexed and
harrassed by a multiplicity of suits.
Defendants answered substantially
Justifying under tbe ordinances above
quoted and by denials as to other
matters; among other things denying
the bona fides of te organization of
the club and alleging that its princi
pal object Is the unlawful sale of liquors.
On the trial there was a decree for
plaintiff and defendants appeal.
McBrlde, j; Previous to November,
1909, the sale of Intoxicating liquors
was licensed In the city of Wood
burn. At the election then occurring
the city In common parlance voted
"dry," and thereafter such sales
were prohibited. Existing licenses ex
pired In January, 1910, and colndi
dently with their expiration a num
ber of citizens were suddenly seized
with a desire to Improve their social
and mental condition by means of a
social club and the "Bachelors' Club"
was Incorporated, ostensibly for that
purpose. Whether or not Its menu
ber8hip was confined to unmarried
men as the name would seem to In
dicate, the club became at once an
exceedingly popular institution and
soon attained a membership of about
SO persons. The method of Initiation
was simple. A person desiring mem
bership signed an application blank
and his qualifications were passed
upon by the trustees and If found
worthy, he paid a fee of 6 and was
admitted. Of this amount, one dol
lar was for membership and the oth
er five was for a book of coupons,
entitling the holder to receive a cer
tain quantity of any refreshments the
club might 'have In stock. A room on
the ground floor of a building for
merly used as a saloon was rented, a
bar established, and stewards provid
ed, and last but not least, a stock of
liquors, cigars and soft drinks laid in
for the comfort and delectation of the
members. The club secured a 'United
States' Internal revenue license for
the sale of liquors and proceeded to
furnish its members with liquors, ci
gars and other refreshments, when
called for. There is no evidence that
the club ever did anything toward the
moral or mental Improvement of its
members, beyond furnishing them li
quors, cigars and soft drinks In ex
change for coupons, and we conclude
from the testimony that the principal
object of the corporation was the dis
posal of liquors to Its members. It
is claimed that the provisions of the
charter authorizing the council to li
cense and regulate the sale or dis
posal of intoxicating liquors does not
Include the power to prohibit their
sale. Whether this is correct or not
is of no moment in this case as tbe
council has not attempted by this or
dinance to prohibit the sale of liquors
in Woodburn but has confined the
right to make Buch sales to regis
tered pharmacists and upon a bona
fide prescription for disease.
This is not prohibition but regula
tion. Taking this in connection with
the plenary power granted the coun
cil, by Sec. 5 supra, to pass and enact
such' ordinances as it shall dedm ex
pedient to suppress Intemperance, we
are of the opinion that the ordinance
Is valid.
The contention that these sales
were not sales of liquors but that It
was the property of the members of
the club, cannot be sustained. The
club is a corporation and la Itself an
artificial person and, as such, owns
the liquors purchased by it The act
of taking a member's money In gross
and allowing him to spend it for li
quors In detail as his appetite may
require, does not alter the fact that
j In Its ultimate analysis the transac
tion Is a sale; nor does the fact that
no profit Is made by the transaction
alter its nature. It is not a defense
to a charge' of unlawful disposal of
liquor for the seller to show that he
sold it for less than it cost him.
Ordinance No. 307 Is not void. A
house where the unlawful sale or dis
position of intoxicptJng liquor Is car
ried on is a disorderly house: People
v. Clark, 1 N. Y. Crlm. C, 28S Cheek
v. Commonwealth, 79 Ky. 359.
Ordinance No. 309 is void. The
right of the citizen to be protected
agalst unreasonable search and seiz
ure is a very valuable one and we
have been cited to no provision of the
charter of Woodburn- that confers
upon the munlclpalhy the right to ex
ercise this high perogatlve. Ordi
nance No. 300 is confessedly void,
both for want of authority In the
charter to enact It, and because It in
terferes with Interstate commerce.
It does not appear, however, that any
attempt has been made to enforce it
and we are not therefore, required to
make any order in relation to it.
The decree of the circuit court en
joining prosecution under ordinances
287 and 307 is reversed, but the de
cree will stand as to No. 309. The
appellant will recover costs and dlw
bursements In this court and neither
party will recover costs and disburse
ments in' the circuit court.
-0
in Alarm at Sight
That strikes terror to the entire house-
nold is the loud, hoarse and metallic
cough of croup. No mistaking It, and
fortunate then the luckv narent whn
keep Foley's Honey and Tar Com
pound on. nana. H. w. Gasselman,
Canton, N. Y., says: "It is worth its
weight in gold. Our little children
are troubled with croup and hoarse
ness, and all we give them is Foley's
Honev and Tar PnmnmiTiil 1 Din,..
have a bottle of It in the house." H.
jerman. Red Cross Pharmacy.
o .
CASTOR I A
lot Infants and Children.
flit K!ni YoaKaie Ahra;; Sought
Bean the
nature of
E. HOFER & SONS
Investments, Loans, Real Estate
INSURANCE
Wc write fire. Life, Accident, LiabilityAutomobile,
Bonds and All Branches of Insurance.
213 & Commercial St
Phone 82
s
A
L
E
l l akes life more pleasant and
m
ure to please the lovers of a
wholesome beverage, '
Iways an invigorating, pure
and delightful drink.
ends strength to the weak and
wearied physique. -
ffects a soothing cure for the
nervous ills of life.
f7
B
E
E
R
cheers the heavy heart.
rings good fellowship to all
who partake in moderation.
nlivens the spirit of the down
cast and disheartened.
ndows existence with hopes
and aspirations
estores man to fulness of
strength and activity.