Oregon Advisory Opinions February 26, 1954: OAG 54-14 (February 26, 1954)

Oregon Attorney General Opinions

1954.

OAG 54-14.

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This is in response to your recent letter in which you state that a local option election on liquor by the drink under the provisions of ORS 472.410 has been ordered for the residents of Benton county to be held at the regular general election in November 1954, and that a Corvallis citizens group contemplate the filing of petitions in compliance with said section which would have the effect of bringing about a local option election on the same issue for the city of Corvallis at the same election.

If the simultaneous elections are held in Corvallis and in Benton county and if the county votes against liquor-by-the-drink while the city votes for liquor-by-the-drink, you ask which election would prevail in the city of Corvallis.

Section 39, Article I, Oregon Constitution, adopted November 4, 1952, recognizes the power of the state to license certain enumerated establishments for the purpose of selling alcoholic liquor by the individual glass at retail:

"* * * provided, however, the right of a local option election exists in the counties and in any incorporated city or town containing a population of at least five hundred (500). The Legislative Assembly shall prescribe a means and a procedure by which the voters of any county or incorporated city or town as limited above in any county, may through a local option election determine whether to prohibit or permit such power, and such procedure shall specifically include that whenever fifteen per cent (15%) of the registered voters of any county in the state or of any incorporated city or town as limited above, in any county in the state, shall file a petition requesting an election in this matter, the question shall be voted upon at the next regular November biennial election, provided said petition is filed not less than sixty (60) days before the day of the election." (Emphasis supplied)

While the above provision recognizes the power of local option in counties and cities or towns neither the Constitution nor ORS chapter 472 pretends to declare the effect of conflicting election results under the anticipated circumstances. Therefore the judicial authorities must be consulted for a determination of the question.

Prior to November 8, 1910, the sale of intoxicating liquor was permitted in Oregon with a right of local option granted to "any county in the State, or subdivision of any county, or precinct of a county": chapter 2, General Laws of Oregon 1905. A subdivision of a county was defined as meaning two or more entire and contiguous precincts and might embrace any incorporated city or town.

Although the power of initiative and referendum: § 1a, Article IV, and the power of "home rule": § 2, Article XI, were granted to cities and towns in 1906, prior to the November 8, 1910, amendment of § 2, Article XI, a county-wide election adopting prohibition was controlling over all lesser political units or voting areas: State v. Schluer, (1911) 59 Or. 19; State v. Hearn, 59 Or. 227. This was true although in the absence of such county-wide vote a city or precinct could determine the question for itself: Baxter v. State, (1907) 49 Or. 353.

The November 8, 1910, amendment of § 2, Article XI, added the clause

"* * * and the exclusive power to license, regulate, control, or to suppress or prohibit, the sale of intoxicating liquors therein is vested in such municipality; but such municipality shall within its limits be subject to the provisions of the local option law of the state of Oregon."

In State v. Perkins, (1912) 61 Or. 163, the court had before it a situation where the city of Springfield had held an independent election after the abovereferred to constitutional amendment and voted "wet" in the face of an existing county-wide vote of "dry". The municipality then proceeded to license the defendant to sell liquor and a conviction in the lower court was reversed on appeal, thus recognizing the power of a city to determine the question independently of the county-wide vote.

In 1914 §§ 36 and 36a, Article I, Oregon Constitution, adopted prohibition on a state-wide basis and expressly repealed all provisions of the Constitution and statutes inconsistent therewith. In Klamath Falls v. Oregon Liquor Control

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Commission, (1934) 146 Or. 83, the supreme court held that the prohibition amendment to Article I had repealed the above-quoted clause of § 2, Article XI, and that the repeal of the prohibition amendment to Article I in 1933 did not revive the above-quoted provisions of § 2, Article XI. Thus it is my opinion that the instant question must be answered in the light of the "local option" decisions uninfluenced by the "home rule" provisions of § 2, Article XI.

The legal effect of the popular vote in a local option election should not be misconceived. Such a determination is not in any sense the making of a law. Its legal effect is merely to declare whether or not a general state-wide law shall continue in effect within the confines of the voting unit: In re O'Brien, (1904) 29 Mont. 530, 75 P. 196.

One of the things that should be borne in mind is the fact that liquor-by-the-drink dispensers are not licensed by any municipality: ORS 472.040, but are licensed by the state under state law.

The form of petition: ORS 472.430, the order of the clerk calling the election: ORS 472.410, the liquor election notice: ORS 472.450, and the form of question submitted to the voters on the ballot: ORS 472.470, all recognize simply that the election is for the purpose of determining whether or not there shall be liquor-by-the-drink in such county, city or town.

Regardless of the size of the political subdivision taking the vote prohibiting liquor by the drink, the vote so taken is controlling in all of that political subdivision and not just part of it: Levine v. Newaygo, (1950) 328 Mich. 346, 43 N.W. (2d) 880; Schwartz v. People, (1909) 46 Colo. 239, 104 P. 92; Garrett v. State, (1911) 61 Tex. Crim. 254, 134 S.W. 696.

The court in Baxter v. State, (1907) 49 Or. 353, at p. 361, said:

"* * * Where prohibition is adopted by the county as a whole, it is the adoption of a policy of county government, and as such must be applied to the entire county, even though a precinct therein votes against it; but where a county as a whole votes against prohibition, it has thereby adopted no measure or policy for the county by its vote, it has only said that it will not adopt prohibition for the county as a whole; and, if a precinct in such case does adopt prohibition, it will not be in conflict or inconsistent with the county vote."

Analogously under § 39, Article I, the state has said in effect that the people will be allowed liquor-by-the-drink but likewise has recognized the right of local option. It is my opinion that if there is a simultaneous election held in Corvallis and Benton county, and the county should vote in favor of liquor-by-the-drink, it will have performed an act similar to that performed when a county under the old law voted against prohibition. It has thereby adopted no measure or policy for the county by its vote inconsistent with the state policy and "it has only said that it will not adopt prohibition (prohibit liquor-by-the-drink) for the county as a whole". The general state-wide law remaining in effect throughout the county, any city or town in Benton county would be free to express itself and exercise its option to prohibit liquor-by-the-drink.

On the other hand if Benton county should vote to prohibit liquor-by-the-drink, then it would have established a county-wide policy and such policy must be applied to the entire county, including the city of Corvallis. No city or town could thereafter by election decide the question independently without first resubmitting the measure to the county as a whole and obtaining a contrary result.

In answer to your question specifically, if the contemplated simultaneous elections are held and Benton county votes to prohibit liquor-by-the-drink this election result would prevail in all of Benton county, which includes the city of Corvallis.