Oregon Advisory Opinions March 16, 1961: OAG 61-36 (March 16, 1961)

OAG 61-36.

You refer to a situation in an Oregon town "already dry," where an election was held under ORS 471.556 (1). I am not informed as to the outcome of the election, although you state that if the vote was "no" there would be no problem, because the prohibition would be lifted as to that class of liquor, but if the vote was "yes" the prohibition as to the same class of liquor would be continued. You request my opinion as to the further effect of a yes vote in such a case, whether the sale of liquor with a lesser alcoholic content would be thereby approved by implication.

Under the Local Option Law as contained in the Oregon Liquor Control Act, from its original enactment until changed in 1957, the question as to prohibiting or permitting the sale of alcoholic liquor as to all of the three provided categories had to be submitted for determination of the voters at a local option election. See Opinions of the Attorney General, 1934-1936, p. 129.

ORS 471.505 to 471.560, comprising the present Local Option Law, recognize three classes of alcoholic liquors and provide forms of petitions, notices and ballots for elections to submit and determine, on a local basis, whether to permit or prohibit the sale of alcoholic liquors in one only of three classifications.

Chapter 231, Oregon Laws 1957, by repealing ORS 471.555, and enacting in its place ORS 471.556, provided for ballots to submit the question as to only one or another of the three classes of alcoholic liquor and independently of the others. The only apparent purpose of the change was to avoid confusing and misleading the voters.

ORS 471.556 provides, in part, as follows:

"Before the election ordered under ORS 471.505 is held, the county clerk shall arrange the ballots and shall have them printed in one of the following forms, with the proper number as prescribed by ORS 254.090 to 254.104 in the space on the left margin:

"(1) If the election is upon the prohibition of the sale of alcoholic liquor containing more than 14 percent of alcohol by volume, the ballot shall be in the following form:

"PROHIBITING THE SALE OF ALCOHOLIC LIQUOR CONTAINING MORE THAN 14 PERCENT OF ALCOHOL BY VOLUME---Purpose: YES---

Since the statute requires that the ballot form hereinabove set forth be used "If the election is upon the prohibition of the sale of alcoholic liquor containing more than 14 percent of alcohol by volume," it seems clearly intended that the status quo respecting the sale of liquors of less alcoholic content not be disturbed as a result of the election. Conversely, if the town was wet and the vote was yes, the sale of alcoholic liquors containing more than

14 percent of alcohol by volume would be prohibited, and the sale of liquor containing less alcohol would not be affected.

In the case you mentioned, the only question submitted to the voters was whether or not the sale for beverage purposes of alcoholic liquor containing more than 14 percent of alcohol by volume be, or rather continue to be, prohibited. They were neither called upon nor permitted to express any views or wishes respecting the continuance of prohibition as to alcoholic liquors containing more than four percent by weight but not more than 14 percent by volume, nor as to all containing more than one-half of one percent of alcohol.

It is therefore my opinion that the Local Option Law, as contained within the Oregon Liquor Control Act, does not provide, nor can it be construed to mean, that a voter at an election under ORS 471.556 (1), in an area where the sale of all alcoholic liquor is prohibited, must impliedly vote in favor of the sale of 14 percent or less alcoholic liquor in order to vote against the sale of liquor containing more than 14 percent of alcohol.