Oregon Advisory Opinions April 28, 1955: OAG 55-43 (April 28, 1955)
Collection: Oregon Attorney General Opinions
Docket: OAG 55-43
Date: April 28, 1955
Advisory Opinion Text
OAG 55-43.
State Senator
This is in response to your oral inquiry of February 28, 1955, in which you asked if the legislature may authorize local option or home rule elections in cities and counties to establish hours for the sale and dispensing of alcoholic liquors different from the hours presently established by regulation of the Oregon Liquor Control Commission.
A local option election is one at which the people express their desire as to whether or not an existing law will be in effect within their particular voting district whether it be county, city or precinct: Fouts v. Hood River, (1905) 46 Or. 492.
It is not perceived how a local option election could be held on the closing hour question since there is no valid existing law in effect describing closing hours which could be submitted to the people. It is likewise understood that it is not your desire for the state to set general closing hours.
It is presumed that what you have in mind is the question of the legislature's power to delegate to cities and counties power to determine their own opening and closing hours for licensees under the Liquor Control Act (ORS chapter 471) and the Oregon Distilled Liquor Control Act (ORS chapter 472), commonly known as the "liquor by the drink" statute.
The establishment of opening and closing hours for businesses is an exercise of the police power of the state, which, it is well settled, may be delegated by the legislature to cities and counties: McQuillin, Municipal Corporations, 3rd Ed., §§ 24.37 and 24.161; Hofer v. Carson, (1922) 102 Or. 545; Covey Drive Yourself & Garage v. Portland, (1937) 157 Or. 117; 16 C.J.S., p. 546, § 178.
ORS 471.045 of the Liquor Control Act presently provides:
"The Liquor Control Act, designed to operate uniformly throughout the state, shall be paramount and superior to and shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent with it. Such charters and ordinances hereby are repealed."
It has been held that this statute vested exclusive control over intoxicating liquors in the State Liquor Control Commission: City of Coos Bay v. Eagles Lodge, (1946) 179 Or. 83, 95.
It being your desire to delegate a measure of this control to cities and counties, the same could be accomplished by amending ORS 471.045 to provide expressly that cities and counties be authorized to establish and compel the observance of opening and closing hours of licensees under the Act.
Turning now to the liquor by the drink statute, ORS 472.040 provides:
"Inasmuch as this statute has been hereinbefore declared to be a subject of general law, and designed to operate uniformly throughout the state, it hereby is declared that the provisions herein contained shall be paramount and superior to and shall fully replace and supersede any and all municipal charter enactments or local ordinances inconsistent herewith, and such charters and ordinances hereby are repealed."
This statute has its foundation in § 39, Article I, Oregon Constitution, which provides that "the State shall have power to license" certain described outlets "for the purpose of selling alcoholic liquor by the individual glass * * *. The Legislative Assembly shall provide in such detail as it shall deem advisable for carrying out and administering the provisions of this amendment * * *."
This power is subject to the right of local option on the question of "whether to prohibit or permit such power" and to the requirement stated in subsection (2) of § 39 that:
"Legislation relating to this matter shall operate uniformly throughout the state and all individuals shall be treated equally; and all provisions shall be liberally construed for the accomplishment of these purposes."
The question immediately arises whether an amendment of ORS 472.040 in substantially the same terms as above set forth with regard to ORS 471.045, namely granting to cities and counties the power to establish closing hours, would, or would not, violate the requirement of "uniform operation" throughout the state and "equal treatment" of all individuals.
It has been observed that the above requirements are substantially the same as those of the Fourteenth Amendment of the Federal Constitution: Dickinson v. Porter, (1948) 240 Ia. 393, 35 N.W. (2d) 66, and do not prohibit classification of individuals if the same is based upon reasonable distinctions and all within the classes are treated equally.
It was long ago held, in Crawford v.
Linn County, (1884) 11 Or. 482, 493, that under the earlier constiutional provision requiring that taxation shall be "equal and uniform" the legislature had the power to divide the objects of taxation into classes and the Constitution only required that the same proportional burden be placed on individuals in the same class.
An amendment of the statute in the manner above suggested would clearly be uniform, operating alike upon all cities and counties in all corners of the state: 82 C.J.S., Statutes, § 154; 43 Words and Phrases 228; and the fact that the result of its operation may not and cannot be uniform does not violate this requirement: Cook v. Dewey, (1943) 233 Ia. 516, 10 N.W. (2d) 8.
A classification based upon incorporated and unincorporated areas of the counties of the state is reasonable because of the inherently different police and governmental regulations necessary in urban and rural areas: McQuillin, Municipal Corporations, 3rd ed., § 24.34.
For the above reasons, it is my opinion that the Legislative Assembly, by appropriate amendment of pertinent sections of the statute, may constitutionally enact general legislation authorizing home rule elections in cities and counties of this state to establish closing hours for licensees under ORS chapters 471 and 472.