State v. Wilcox , 53 Or. 270 ( 1909 )

Opinion by

Mr. Chief Justice Moore.

The defendant, J. C. Wilcox, a licensed saloonkeeper, was convicted of the crime of selling intoxicating liquor to a minor, and sentenced to imprisonment in the county jail for the term of one year, and to pay the costs of the prosecution. Also his license was declared forfeited. He appealed from such sentence, and the judgment was affirmed. The evidence given at the trial tended to show that the sale complained of was made by his bartender, and in an opinion herein, of January 20, 1909, it was held, in construing the statute (Section 1978, B. & C. Comp.) that, in order to maintain the action, it was necessary to show that the defendant knew the sale was made by his agent. The district attorney filed a petition for a rehearing, and in it he insists that the clause of the statute referred to was impliedly repealed by the passage of the section immediately preceding it (Section 1977, B. & C. Comp.), which is the later enactment on that subject, and that such statute makes a saloonkeeper liable for the acts of his bartender in selling intoxicating liquors, notwithstanding he may not have had any knowledge that his agent was violating the law. Within the time allowed to file a petition for rehearing herein Governor Chamberlain remitted the sentence of imprisonmnt imposed upon Wilcox, on condition that he should pay the costs of the action. As the district attorney challenges the interpretation given, the former opinion, which has not been published, is withdrawn (State v. Luper [Or.] 96 Pac. 1069), thereby leaving the legal principle involved, to be considered when it may possibly arise in some other cause.

The judgment is affirmed, however, so far as it relates to the costs and disbursements incurred in the lower court and upon this appeal.

Affirmed as to Costs.