State ex rel. v. Malheur County Court , 54 Or. 255 ( 1909 )

Mr. Justice McBride

delivered the opinion of the court.

1. It is claimed by appellants that, irrespective of any view which the court below might have taken of the contention in regard to the plenary power of the City of Vale over the liquor traffic under the conditions of its charter, the allegation in the writ of failure to post notices of the election was sufficient to require the circuit court to hear and determine the case on that question. With this contention we are unable to agree. The writ is defective as to the allegation of want of notice. Its language is: “No notice was ever issued or posted as by law provided.” In this language it followed the petition. Had the pleader been content with alleging that no notice was ever issued or posted, an issuable fact would have been stated; but the addition of the words, “as by law provided,” makes the allegation a mere statement of a conclusion of law. It is equivalent to saying that, in the pleader’s judgment, there was something in the manner or time of posting, or in the substance of the notices, that rendered them invalid. There was therefore no question of fact to be tried by the lower court.

2. Upon the second proposition presented, we think the law is also with the respondent. It appears from the writ that in June, 1908, 'the county court made an order of prohibition which embraced the whole county of Malheur, including the City of Vale, which appellants claim was exempt, by the provisions of the charter, from the operation of the local option law. If the making of this order was a mere ministerial act, involving no exercise of judgment or judicial power, mandamus would probably be the proper remedy. 19 Am. & Eng. Enc. Law (2 ed.), 740; Simon v. Durham, 10 Or. 52; Boston Turnpike Co. v. Pomfret, 20 Conn. 590. But if the required act involves the exercise of judgment or discretion, or, in other words, if it is a judicial act and such judgment has once been exercised, mandamus will not lie to compel a tribunal to amend or correct its judgment, even though it may have acted erroneously. Tapping, Mandamus, 158, 160; High, Extra. Legal Remed. §§ 154, 188, 190. Mr. High, at § 154, states the rule as follows:

“Mandamus will not lie to compel a court to give a particular construction to a statute in a matter properly within its jurisdiction. And in all such cases the writ is refused regardless of whether the inferior tribunal has decided properly or improperly in the first instance.” And again, at § 188, he says: “Nor will the writ be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance, or to compel them to retrace their steps, and correct their errors in judgments already rendered.” He further says (§ 190) : “Even if the party aggrieved has no right of appeal, or if a writ of error will not -lie to the judgment or ruling of the court below, the same inflexible rule applies, and, if the court properly had jurisdiction of the questions presented for its determination, the want of any remedy by appeal affords ho ground for the exercise of the jurisdiction by mandamus.”

3. Now while the mere act of examining the clerk’s abstract of the vote and declaring the result of an election may be, in many cases, largely ministerial, we are of the opinion that, under the circumstances disclosed in the case at bar, the duties of the county court were, to a large extent, judicial. In the present case the court was confronted with a delicate question of law. If the City of Vale was exempt, by the conditions of its charter, from the operation of the local option law, it was the duty of the court to make that exemption apparent in its order. If it was subject to the provisions of that law, it was its duty .to make an order which would apply to the county as a whole. A question of law was before it to be decided, and, in passing upon it, the court acted just as much in a judicial capacity as we do in passing upon the same question on appeal. We think the court below was correct in holding that it had no power to compel the county court to amend its order of prohibition.

4. But waiving these preliminary questions and coming to the main contention of appellants, was the action of the county court, in entering an order of prohibition for the entire county of Malheur, erroneous? The theory of appellants is, that the act of February 21, 1905 (Sp. Laws 1905, p. 127) repealed the local option law as to the City of Vale, and that no election for the county of Malheur, as a whole, could thereafter be held under the provisions of that law. They claim that the Vale charter, act of 1905, operates both as an express and an implied repeal of the local option statute, so far as the City of Vale is concerned. We will consider both these propositions together. For a clear understanding of the subject, it will be necessary to consider chronologically the history of charter legislation, with reference to the town of Vale and its relation to State legislation, in regard to the sale of intoxicating liquor. The first charter of Vale was enacted February 21, 1889 (Sp. Laws 1889, p. 866). By section 18 subsec. 14, of that charter, the town council is given, among other grants of power, the right to “license, tax, regulate, restrain, suppress and prohibit barrooms, groceries, tippling houses, etc., and all citizens within the corporate limits shall be exempt from any county license, which is or may hereafter be imposed by the general laws of the State; that no license for the sale of spirituous, vinous or malt liquors shall be issued for a less sum than the amount of such license required by the general laws of the State.” In 1901 the charter was again amended (Laws 1901, p. 281) in other particulars, but section 18, subsec. 14, was retained entire.

The local option law took effect June '24, 1904. On Feb.- 21, 1905, an act was passed entitled “An act to incorporate the City of Vale and to provide a charter therefor and to repeal an act entitled ‘an act to incorporate the town of Vale,’ filed in the office of the Secretary of State, February 21, 1889, and to repeal an act amendatory thereto, passed February 15, 1901.” An undescribed danger to the peace and health of the good citizens of Vale being somewhere concealed in the old charter, an emergency clause put the new one in force immediately. Sp. Laws 1905,. p. 127. By section 18 of said act the council is given power among other things, “to license, tax, regulate or prohibit barrooms, drinking shops, saloons, tippling houses * * and all'other places where spirituous, malt or vinous liquors are sold.” Section 18 also contains the identical provision, prohibiting the issuance of a license for any amount less than that required by the State law, which is found in both previous charters and contains further new and salutary restrictions upon the liquor traffic not necessary to mention in this opinion. It may be premised that, at the time this new charter went into effect, prohibition had not yet invaded Malheur County, and that the town of Vale, up to the time of the prohibition election in question in this case, was not restricted in any way in dealing with the liquor business as it saw fit. While the local option law was technically in force all over the State, from June 4, 1904, its effect was. merely that of an enabling act authorizing the citizens of any particular locality in a convenient way to express their desire to have or not to have liquor sold within designated boundaries. Such was practically the holding of this court in Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147). Such being the effect of the law, it had no effect proprio vigore upon the city charter of Vale, and there could be no conflict between the two statutes. From June 24, 1904, until the last election, the town of Vale could license the sale of liquor within its limits, and did so. The two laws were not repugnant. They both could be in force, and actually were in force, at the same time. It will be noticed that there was no reference to, or express repeal of, the local option law by the charter act of 1905. -The clause repealing all acts and parts of acts in conflict with the charter act, without reference to what particular acts it was the intention of the legislature to affect, would only accomplish a repeal in any event by implication.

5. A repeal by implication only arises when both statutes cannot be reconciled with each other by any reasonable interpretation, or where there is a clear intent shown by the terms of the latter act that it shall supersede the other. We do not think such intent is manifest in the charter act of 1905.

6. As we have observed before, there is no mention made of the local option law in the title, while the original charter act of .Vale and the act of 1901, amendatory, are both mentioned, and the intent to repeal them plainly and unequivocally indicated. The maxim “Expressio unius, exclusio alterius,” may well be invoked in this instance. While the title of the act professes to grant a new charter to the City of Vale, it is plain that section 18 of the .new charter is practically a re-enactment of section 14 of the original charter, with some additions in the direction of definiteness. The power to license and regulate barrooms, groceries, and tippling houses, granted in the first two charters, is only more clearly expressed by adding the words “drinking shops, saloons and all places where spirituous, malt or vinous liquors are sold.” Cnanging the name of the place from the “town of Vale” to that of the “City of Vale” does not alter the fact that the lawmaking power was legislating in respect to the same place and the same people. The section in question is not new legislation, but a re-enactment of provisions already in force, with some additions thereto. It is the old charter in a new dress. Under such conditions an intent to repeal a prior general statute will not be presumed. Allison v. Hatton, 46 Or. 370 (80 Pac. 101) ; Renshaw v. Lane County, 49 Or. 526 (89 Pac. 147) ; Hall v. Dunn, 52 Or. 475 ( 97 Pac. 811) .

7. Repeals by implication are not favored, and repugnancy between two statutes should be clear before a court is justified in holding that a later statute impliedly repeals an earlier one. Endlich, Interp. of Stat. § 210; Booth’s Will, 40 Or. 156 (61 Pac. 1135: 66 Pac. 710); Bower v. Holladay, 18 Or. 491 (22 Pac. 553).

8. The cases'arising under local option laws of other states and cited in appellant’s brief are not analogous to the case at bar. In Tabor v. Lander, 94 Ky. 237 (21 S. W. 1056), cited by appellant, the local option statute had been put in force by vote in a certain district, including the town of Hawesville. The whole district had given a majority for prohibition, but Hawesville had given a majority against it. Subsequently, and while the district was still prohibition territory, the legislature amended the charter of Hawesville, so as to confer upon the town for the first time the right to license the sale of liquor. Under the circumstances the court held that a clear intent to repeal the local option law was indicated. In State v. Clark, 54 Mo. 17 (14 Am. Rep. 471), the court held that the language of the amendatory statute indicated a clear intent on the part of the legislature to repeal a State statute, by an amendment to the city charter of St. Louis. The case is not in point. In Hall v. Dunn, 52 Or. 475 (97 Pac. 811), the amended charter of Medford gave the city council power to license and regulate the sale of liquor “irrespective of any general law on this subject enacted by the legislature or the people at large.” Here the intent to repeal is not concealed or left to conjecture. It is “writ large” in the very terms of the act itself.

We are of the opinion that the local option law was not repealed as to the City of Vale by the charter act of 1905.

The judgment should be affirmed. Affirmed.

Decided July 20, 1909.