Decided July 11, 1911.
On Petition for Rehearing.
[117 Pac. 412.]
Mr. Justice Mooredelivered the opinion of the court.
In a petition for a rehearing, it is insisted by defendant’s counsel that affirming the judgment rendered in this cause is tantamount to judicial legislation, in that the opinion announced herein attempts to give to the words used in the amendment of Section 2 of Article XI of the Constitution an unusual meaning, which is unwarranted by, and cannot be gathered from, the context; and that in construing a clause of an organic act a court has no right to disregard the meaning of plain and unambiguous language, under the guise of discovering the intent of electors in adopting a clause of fundamental law, or to give an interpretation in such a case that does violence to the ordinary meaning of the words employed.
In a brief submitted by counsel, who appears as amicus curiae, it is asserted that the people of Oregon cannot, by an amendment of the constitution, deprive the State of exclusive authority over, and control of, the liquor traffic and confer such power upon an incorporated city or town, and in support of the doctrine thus announced attention *233is called to the case of Straw v. Harris, 54 Or. 424 (103 Pac. 777), where, in construing an act of the legislative assembly, authorizing the incorporation of ports (Laws Or. 1909, p. 78), it was held that the State may not surrender its sovereignty to municipalities to the extent that it must be deemed to have perpetually lost control of them.
3,4. Considering the questions stated in an inverse order, the declaration seems somewhat incongruous that a clause of the constitution is unconstitutional. Some parts of an organic act may appear inconsistent when compared with other portions, but the contradictory provisions, when challenged in a suit or action in which they are necessarily involved, should be so interpreted as to give effect to each as far as possible. The authority to sell intoxicating liquors is not an exercise of common right, but is a special privilege which the State, under its police power, may grant or deny at its pleasure. This power may be employed by the State or delegated by it to municipal corporations, which agents can use the power in the manner and to the extent specified in the enactment conferring the authority. It is an axiom that no creature can ever become greater than its creator, and as a corollary deducible from this principle the rule is universal that the police power cannot be bargained away in such a manner as to place it beyond recall.
5. Though the amendment of the section of the organic act under consideration vests in cities and towns “the exclusive power to license, regulate, control, or to suppress or prohibit the sale of intoxicating liquors therein,” such delegation is valid only while the clause of the fundamental law remains intact. It is possible for the people of Oregon at the next general election, by initiative petitions, to repeal such provision, and in lieu thereof to amend the constitution so as to prohibit the manufacture or sale of intoxicating liquors for beverage purposes. The *234police power is therefore not bargained away, but temporarily delegated to municipal corporations as agents of the State, to be employed by the latter in the manner prescribed, until countermanded by the authority which bestowed it.
The word “exclusive,” as used in the amended section of the fundamental law, when construed in connection with the entire language there employed, evidently means that an incorporated city or town shall, until otherwise ordered, be the sole agent of the State in exercising the police power respecting the control and sale of intoxicating liquors. The further clause, “but such municipality shall within its limits be subject to the provisions of the local option law of the State of Oregon,” prescribes the manner of employing the power delegated, which enactment is a limitation upon an exercise of the authority. Such provision of the constitution is not subject to the criticism indulged in Straw v. Harris, 54 Or. 424 (103 Pac. 777). The case at bar does not involve the interpretation of a statute, but the construction of a clause of the constitution, the amendment of which does not trench upon a republican form of government, which is guaranteed (Section 4, Article IV, of the Constitution of the United States), nor does it encroach upon the limitations imposed by the federal constitution upon the powers of the states. Section 9, Article I, Constitution of the United States.
We conclude, therefore, that the people of Oregon could lawfully delegate to an incorporated city or town the “exclusive” power to license, tax, regulate, restrain, or prohibit the sale of intoxicating liquors, for beverage purposes, within its territorial limits.
An examination of the opinion announced in this cause and of the majority opinion in State v. Schuler, 59 Or. 18, (115 Pac. 1057), upon the authority of which the decision herein is based, will show that no attempt was made to *235determine the intent of the electors in adopting the amendment of the constitution, unless such purpose can be implied from an effort to construe the words used when considering the entire language employed.
Believing that the determination reached by the majority of the court is warranted by an interpretation of the clause of the constitution, the petition is denied.
Affirmed: Rehearing Denied.