12
THE. MORNINGf OjREGONIAN, FBIDAY, JULY 3, 1903.
LAW: HELD INVALID
Initiative and Referendum-Is
ofNo Effect
MULTNOMAH JUDGES,SO DECIDE
Finding la Kar-IteactilnK ad, If Sus
tained by the Supreme Court, TVI11
Beirtore AH LaKm&klBs Fovr
' era to Xi'esrlalative Assembly.
(Continued from First Page.)
the Constitution means that while amend
ments are pendlnjr no further amend
ments to the same clause or subject shall
te proposed.
The court gives "two sufficient answers"
to the first argument- In the first place,
it holds that "the provisions of the ex
isting Constitution are the law of the
land. The people as electors have ho
power as such to violate any of the pro
visions of the law they themselves have
enacted. "Until the Constitution has been
amended according to Its terms there is
no change, in the instrument."
In the second place, maintains the court,
"the authorities are practically unani
mous in holding that where it appears the
Constitution has not been obeyed in the
respect wherein it provides the Consti
tution may be amended, it is the duty of
the courts eo to declare and to hold the
amendment invalid."
The second argument used to support
the initiative and referendum namely
that the amendment has been adopted in
accordance with Constitutional require
mentsis "rejected by the court as un
tenable." .The Emergency CI anise.
The court doubts the "practical value"
of the reservation of power to the people
in the clause relating to "peace, health
or safety." "A law may be necessary for
the preservation of the . public peace,
health .or safety," says the opinion, "and
yet the Legislature may fall to declare
the emergency," or "An emergency may
be declared In the body of a law, not nec
essary for the preservation of the public
peace, health or safety.". Furthermore,
bills which affect the practical operations
of the state government might be held up
Dy petition for referendum for over a. year
until the people could vote on them, since
a special election could be ordered only
by an extra session of the Legislature.
Many persons have declared that the
Initiative and referendum was not oper
ative without supplemental legislation,
and) that it did not become effective until
May 22, when legislation of that kind
enacted at the last legislative session
went into effect. But the court takes the
contrary view and says: "It seems to the
court that the amendment contains with
in itself a sufficient means for its enforce
ment, and that while legislation on the
subject may be convenient. It Is and was
unnecessary to the f till enjoyment and
N exercise of the rights reserved by the
amendment. The court beHeves the Secre
tary of State, by consulting the amend
ment, the act of 1901 submitting the same
to the people and the general election
laws, could fairly and without difficulty
submit any bill to the electors of the
state."
Charter Xot Invalid.
Plaintiffs argued that the charter Itself
was invalid, because it violated the 14th
amendment to the Constitution of .the.
United States and also various provisions
of the constitution of Oregon. The court
failed to agree with them on any of these
contentions. These arguments of plaint
iffs were four In number:
"First That the entire charter is un
constitutional and void, because It does
not limit the power of the Council in con
tracting debts.
"Second That section 400 of the charter
is an attempt to deprive persons of their
property without due process of law.
"Third, that sectlon 401 Is unconstitu
tional, because on the appeal therein pro
aided for to the Circuit Court from the
findings of the Council, upon the objec
tion -of any property-owner to a reassess
ment, the jurisdiction of the Circuit Court
is limited to a determination of the
amount of special benefits equitably to be
assessed against the property of such per
son. "Fourth That section 401 of the charter
violates article 9, section L of the Oregon
constitution, which provides for an equal
rate of assessment and taxation."
QUESTIONS BEFORE THE COURT.
Attorney Details the Objections to
the Initiative and Referendum.
"While the decision Is nominally against
me;" said Mr. Duniway last night, "it is
in fact a victory on my side. The court
decided that it was inconsistent and il
legal to assume the initiative and refer
endum is a part ot the constitution, and
at the same, time to attempt to put the
charter Into effect on its approval by
the governor by an absurd declaration of
emergency.
"I do not think the initiative and ref
erendum is wise constitutional lerfsla
tlon;-yet I was constrained to uphold it
before the court in order to test its va
lidlty.
"I shall ajt once appeal to the Supreme
Court. The questions that will go before
that tribunal are: First, whether or not
the Initiative and referendum is const!
tutlonally adopted; second, can the Legis
lature at pleasure render It Inoperative
by tacking on an emergency clause to
an act which is not necessary to the
immediate preservation of the public
health, peace or safety.
"Aside from the initiative and referee
dum, the constitutionality of the charter
is questioned because that instrument
does not limit the power of the City
council in contracting- debts. The Sn
preme Court will pass upon this issue
and also upon the constitutionality of the
reassessment sections of. the new char
ter.
"If the Supreme Court should, uphold
the Circuit Court my next step will be to
test the legality of the East Burnslde
street reassessment.- My contention for
my clients will be that the improvement
was not made according to contract.
and that, therefore, the city cannot asxj
eegs the property owners for the benefit
of the defaulting contractors. This ques
tion the Circuit Court passed over in this
case, holding that it was premature until
the Council had actually made the reas
sessment.
"This proceeding was merely to enjoin
a. proposed reassessment and to test the
constitutionality of the Initiative and
referendum and the charter. When the
nnal reassessment shall be made the
particular Issue on East Burnslde will be
raised.
"I share the opinion, of many promi
nent lawyers that the initiative and ref
erndum is fraught with danjrer. The
longer it remains undisturbed the harder
it will be to dislodge it. But no . matter
what any body's opinion is. it is impor-
xanc to Dnng tnis great question to Is
Bue and to get It settled quickly."
TEXT OP THE DECISION.
"Why the Initiative and Referendum
Amendment Is Unconstitutional.
The following is the text of the decision
relating to tho initiative and referendum
constitutional amendment:
The charter of Portland, approved Jan.
uary 23. 1903. in section 427 contains: .
cltals that the bridges in the city are old
and dangerous; that there is Immediate
necessity for construction of new bridges
to provide for the safety of the people:
that the charter of 1S38 does not nmi-Mn
means lor the prompt construction of new
- il3tf,.Aad. Xk chait&c ol im ka; tha.t
there Is otherwise a. necessity for the im
mediate adoption of the charter" of 1P0S to
insure the health, peace and safety of the
people of Portland. It is provided the act
shall take effect and be in force irom
and after Its approval by the Governor.
The complaint contains allegations to
the effect that the. recitals in section 427
are untrue and the facts are not as stated
therein. It was Insisted on tho argument
the demurrer admits the allegations of the
complaint, and it appearing Dy the plead
ings the recitals are in fact untrue, the
act did not take effect or become a law
until SO days after the final adjournment
of the Legislative Assembly. The foun
dation of this claim is the amendment of
section 1, article 4, of the constitution,
ratified by the electors at the general elec
tion held June 2, 1902, and commonly
called the initiative and referendum
amendment.
Under the terms of this amendment the
referendum may be ordered as therein
provided, "except as to laws necessary
for the Immediate preservation of the pub
lic peace, health or safety."
The question Is now presented whether
in any given case In determining if a law
falls within the exception the courts shall
be bound by recitals of fact Inserted by
the Legislature or ascertain the charac
ter of the law by an inspection of its pro
visions. A marked distinction may be
drawn between the exception contained
in the initiative and referendum amend
ment and section 28, article 4, which pro
vides: Wo act shall take effect until 90
days from the end of the session at which
the same shall have been passed, except
in case of emergency, which emergency
shall be declared In the preamble or in
the body of the law."
This section undertakes to fix the time
at which all acts passed by the Legisla
ture shall take effect Prior to the adop
tion of tho last amendment to the .con
stitution any act on any subject and with
out limitation as to its character or pro-,
visions in case anemergency is declared
by the Legislature, takes effect upon ap
proval by the Governor.
THe purpose of the Initiative and refer
endum amendment is to reserve to the
people the power really to absolutely veto
any act unless it be one for the immediate
preservation of the public peace, health
or safety. It Is provided the referendum
may be ordered on petitions filed with the
Secretary of State not more than 90 days
after the final adjournment of the Legis
lative Assembly. Also that any measure
referred to the people shall take effect
and become the law when It Is approved
by a majority of the votes cast thereon,
and not otherwise. When the referendum
Is properly invoked, the action of the
Legislative Assembly in undertaking to
enact a law falls to accomplish the de
sired result. The people, as soon as the
proper petitions are filed, become to all
Intents and purposes the law-making pow
er, because in any given case if a ma
jority do not vote in favor of the measure
it cannot become a law.
The time when the people shall act Is
fixed In the amendment at the blennal
regular election, unless the Legislative
Assembly order a special election. The
latter alternative would not be likely to
happen In cases wherein the referendum
is ordered by petition, since to accom
plish the calling of a special election
would require a special session of the
Legislative Assembly. In the ordinary
course of events following the present
election laws, a bill upon which the refer
endum fs ordered could not be submitted
to vote of the electors earlier than one
year from the month of June next .follow
ing the adjournment of the Legislative
Assembly. In case the amendment had
not contained exceptions it would have
been possible by petition to at least sus
pend final action for more than one year,
even upon aDnronriation bills. There is
much reason to believe such measures
and others Intimately connected with and
affecting the practical operations of the
state government are tne laws meant to
be Included in the exceDtlon. It is reason
able to assume that while attempting to
secure the referendum power to the peo
ple upon suojects or general interest, it
was deemed impolitic to place the entire
administration of the state affairs in the
doubtful position of waiting one year be-
iore revenues were avaiiaoie ior any pur
pose. It seems quite certain that ft was
the intention to define the class of laws
which should be subject to the referendum
power. If it had been the purpose to
commit the decision as to what laws
might be enacted by the people to the
Legislative Assembly this could have been
stated easily. A clause could have been
added to the exception In substance, like
section 28, article 4, of the constitution.
The power given by this section had
been frequently exercised by the Legisla
tive Assembly, and was well known and
understood by all the people. The Supreme
Court of the state has given a construc
tion to this section which has been the
settled law of the state for many years.
"In all such cases it is for the Legisla
ture to ascertain and declare the fact of
the existence of the emergency, and its
determination Is not reviewable else
where." Brlggs vs. McBrlde, 17 Or. 647.
McWhirter vs. Bralnard, 5 Or. 426.
The initiative and referendum amend
ment by its scope and purpose undertakes
to limit the power of the Legislative As
sembly by providing that after It has ex
ercised all its authority a given measure
may. If obnoxious to the people, be de
feated and never reach the state of being
a valid enactment. The reservation of
this power implies to some extent at least
distrust of the Legislative Assembly. At
any rate the elaborate provisions designed
to afford the electors an opportunity o'f
approving or rejecting measures adopted
by the Legislative Assembly would prove
or little practical value were tho con
struction adopted that the Legislative
Assembly possesses the absolute power to
decide in what cases the referendum
power may be exercised by the people.
Again, a law may be necessary for the
preservation of the public peace, health
or sarety ana yet tne legislature ran to
declare an emergency. An emergency may
be declared in the body of a law not
necessary for the preservation of the pub
lic peace, health or safety. In the first of
these cases It Is unreasonable to assume
because an emergency was not declared
yet the bill might because of such failure
be made the subject of the referendum
power, or In the second Instance that be
cause an emergency was declared the bill
does not upon proper proceedings become
subject to the exercise of the reserved
powers of the people.
The court is of opinion that such a con
structlon should be placed upon the
amendment as to permit the people to in
voke the referendum power upon any bill
that it enacted would not in fact be
law for the immediate preservation of the
public peace, health or safety. That In
determining whether a bill does or does
not fall within the exception, recourse
must be had to the terms and provisions
thereof, and the ultimate decision cannot
be controlled or affected by any recitals
In the bill to the effect that In fact it is
or Is not a law necessary for the Imme-
diato preservation ot the public peace,
health or safety.
It must therefore appear by an inspec
tion ot the charter of 1903. without refer
ence to the recitals In section 427, that it
is in fact such a law. If it Is not, it be-
iongs to mat ciass oi legislation wnicn,
unaer tne terms oi tne initiative ana rer
erendum amendment. If It Is self-execu
tory, cannot become a valid law until 90
days after the final adjournment of the
Legislative Assembly. This Is the period
within wnicn tne power or the rereren
dum may be invoked by petition. It has
already been noticed that In case a proper
petition is men. tne mil can only become
law by receiving a majority vote. The
process of legislation Is arrested. It is
unnecessary to explain a bill cannot be a
law between the final adjournment and
the date of the flllnc of the petition and
then become inoperative. The City of
Portland was a municipal corporation or-
ganlzed and existing under and by virtue
of a charter" adODted by -the Legislative
Assembly In 1898. The provisions of that
charter were found to conserve and pre
serve tho public peace, health and safety
at all times until the charter of 1903 was
adopted. The court does not decide the
charter of 1903 possesses advantages not
enjoyed under that of 1898, but assuming
tnat it does, an assumption most ravor
able to the contention that it is a law
for the immediate preservation of the pub
He peace, health or safety, yet It cannot
be held as matter of law that the charter
of 1903 falls within the exceptions stated
in the amendment. It- does not appear
from a consideration or an its terms to be
a law that can take effect at once and
without the delay imposed by the consti
tutional amendment.
It is, however, contended that even if
this construction be admitted to be cor
rect, yet the initiative and referendum
amendment is not self-executing- and con
sequently is not valid, and in effect until
supplemented by appropriate legislation.
The general rule established by the
authorities is thus stated by JudeeCooley:
"A constitutional provision may be said
to be self-executlnc if it surmlies a suffi
cient rule by means of which tho right
given may ne enjoyea ana protected or tne
duty imposed may be enforced, and it is
not . self-executing when it merely indi
cates principles without laying down rules
by means of which these principles may
UU glVCU WC lUiWi Ul
Cooley's Constitutional Limitations',
Sixth Ed., page 99.
State ex rel. vs. Weston. 4 Nebraska, 215.
People vs. Hoge, 65 cai. eiz.
McDonald vs. Patterson. 54 Cal. 346.
Freedman Brothers vs. Jfathes 8,, Hels-
veil rrn.1 4S&.
Prc vs. Commarrrith, 14 Pa, St. 15.
Householder -vs. the City of Kansas, S3
Mo. 492.
Tho initiative and referendum amend
ment does provide a plan and method by
means of which the ricrht may he en
joyed. It Is expressly provided what laws
shall govern the secretary or state an
the discharge of the duties imposed upon
him by the amendment until legislation
shall be especially provided therefor. The
court believes the Secretary of State by
consultlne the amendment, the act of
1901, submitting the same to the people
and the general election laws, could fairly
and without difficulty submit any bill to
the electors of the state, it seems to me
court that the amendment contains within
Itself a sufficient means for Its enforce
ment, and that while legislation on the
subject may be convenient. It is and was
unnecessary to tne iuu enjoyment ana
exercise of the rights reserved by the
amendment.
Counsel for defendant, however, contend
that even If the amendment be held self
executlnc. the charter of 1903 must be
held valid, hecause the Initiative and ref
erendum amendment itself is invalid, not
having been adopted In accordance with
the terms of the constitution of Oregon
regulating amendments to that Instru
ment. Article 17 orescribes ther only method by
which In the absence of a constitutional
convention the constitution may be
amended.
The last clause of section 2 Is as fol
lows: "And while an amendment or
amendments which shall have been agreed
upon by one Legislative Assembly shall
ThR ftwaltintr the action of a Leclslative
Assembly or of the electors, no additional
amendment or amendments shall be pro
posed.
"Four amendments to the constitution
were proposed in the Legislative Assem-
POIIVTS OF THE DECISION'.
The Circuit Court of Multnomah. In
Joint session, decided yesterday that
the Initiative and referendum is "In
valid and no part of the present con
stitution." The court sustained the new Portland
charter.
Suit was brought by property-owners
on East Burnslde street to enjoin the
city from reassessing" their property to
pay contractors, who were alleged to
have defaulted In their contracts for
improving the street.
Plaintiffs maintained that the new
charter, under which tho reassessment
had been enjoined In April, was not In
effect. Their argument was that the
charter was not a law for the imme
diate preservation of the public p"eoce.
health or safety, and, therefore, could
not go into effect until the OO-day
period has elapsed under the initiative
and referendum amendment..
The city argued that the charter
was a law enacted for immediate
safety of citizens, and that by an
emergency clause it became operative
as soon as approved by the Governor;
also that the-charter was valid because
the Initiative and referendum was in
valid. , '
Court held that the Initiative aril
referendum could not affect the char
ter, because It was "no part of the
present constitution."
Plaintiffs submitted that the-charter
violated the 14th amendment to the
Federal Constitution, besides various
provisions of the constitution of Ore
gon, hut court decided against them.
The injunction against the reassess
ment was dissolved, but will bo re
newed by appeal of plaintiff to the
Supreme Court.
bly in 1S93. These were adopted by the
House and Senate. Laws 1893. nacres 874-
5-6 and 7.
-One of the amendments was known as
the repealing amendment, the others re
ferred to municipal Indebtedness, increase
of number of Judges and irrigation.
These four amendments were atrreed to
by the Legislative Assembly in 1S95, but
no act or suomission was adopted. Laws
1895. pages 611-12-18 and 14.
There was no session of the Legislative
Assembly in 1897.
In 1899 the Legislative Assembly passed
an act, approved February 18, 1899, author
izing the submlsson of the four amend
ments to the legal voters at the June
election, 1900. Laws 1899, pages 143, 144
and 145.
The initiative and referendum amend
ment was proposed in the Legislatice As
sembly in 1899, adopted by the House Jan
uary 27. 1899, and concurred In by the Sen
ate February 2, 1899. Laws 1S99, pages
1129-30.
The four amendments proposed In 1893
were submitted to the voters at the June
election. 1900. and were each reiected.
The Initiative and referendum amend
ment was agreed to in tne Legislative
Assembly, January 16, 190L Laws 1901,
pages 476-77.
The same Legislative Assembly passed
an act to submit the amendment to the
voters at the June election. 1902. Laws
1901. pages 4 and 5. The amendment was
submitted as directed, and ratified by a
vote oi bAUtt ior, to oooh against it.
m ine legislative AssemDiy in lSSs a
propbsal to amend section 2 of article 2
of the constitution was adopted. Laws
18S9, page 6SL This proposed amendment
was not adopted In the Legislative As
sembly in 1891, and no other proposal to
amena tne constitution was adopted by
that Assembly.
An amendment to the constitution known
us the equal suffrage amendment was
proposed in the Legislative Assembly in
1895. laws of 1895, page 612. and agreed to
in the Legislative Assembly In 1899. Laws
1899, page 1123; and the same Assembly
passed an act authorizing the submission
of the amendment to the legal voters at
the Juno election. 1900, laws 1899, pages
143, 144 andA45. The equal suffrage amend
ment was submitted to the voters at the
June election. 1900. and reiected.
It Is urged that the equal suffrage
amendment was not pendlmr. because.
though proposed in the Legislative As
sembly of 1895, it was not agreed to by
any Legislative Assembly chosen in 1896
nor at tne special session of the Legis
lative Assembly chosen In 1S98.
The court is of the onlnlon thnt no
"Legislative Assembly" was ever chosen
In 1895, within the Intention of section 1,
article 17 of the constitution, which ap
plied to the equal suffrage amendment of
1S95, required that amendment to be "re
ferred to tho Legislative Assembly to be
cnosen- at tne next general election.
True, certain persons were elected in
June, 189S, but these persons never met or
organized any legislative Assembly what
ever, and therefore no "Legislative As
sembly" was chosen In 1896. There was
simply only an abortive attempt at choos
ing a Legislative Assembly. The real next
"Legislative Assembly" chosen was that
one elected in 1898. for it did meet and or
ganize, it did not act on this equal suf
frage amendment at the snecial session
held In 1S98, but later on at Its regular
session in low aid consider ana adopt It.
The pfilinl suffrnefi ampndmsnf (homfnro
If legally proposed, was pending and
awaiting action by a Legislative Assem
bly February 6. 1899. when the initiative
and referendum amendment was proposed.
When no amendment or amendments are
awaiting action by a Legislative Assembly
or by the people, a Legislative Assembly
may pass one or more proposed amend
ments and refer them to the next Legis
lative Assembly. Such proposed amend
ments are pending before the next Legls-
latlve Assembly or the electors until they
are rejected, either by the next Legisla
tive yvssemDiy or oy tne people. The court
Deueves tne constitution plainly means-
one amendment or one set of amendments
asreed to by the same Legislative As
sembly shall be finally disposed of, either
by becoming part of the constitution or
by being finally rejected before any other
cmendment or amendments can be legally
consiaerea Dy a Legislative Assembly
This was undoubtedly the onlnlon of
Judge Deady, a member of the Constitu
tional Convention and a learned Judge.
In the code of 1864, opposite to the last
clause- of section z, article 16 of the con
stitution, the Judge wrote these words
"While an amendment pending no other
to be proposed.' xnus construed the lim
itation upon the power to propose amend
ments tends to secure careful consldern
tlon of proposed amendments. Tho wis
dom of the methodical deliberative method
provided for disposing of questions so Im
portant as amendments to tho constitu
tion is quite manifest. In practice, under
the present system of holding general
elections, the voters could not be required
to consider and vote upon constitutional
amendments oftener than once every four
years. It seems to have been the opinion
of the Constitutional Convention that any
plan permitting the- submission of consti
tutional amendments more frequently
would lead, to endless complications and
be likely to confuse the public generally
as to what particular amendments were
in fact penning at any given time. It
may well have been believed that a period
of four years was required for The careful
consideration of such an important meas
ure. If in 1895 the Legislative Assembly
had reiected the four amendments, then
after that action It would have been com
petent to propose the equal suffrage
amendment. The condition then would
have been the same as those which ex
isted in 1S93,- after the Assembly of 1891
had failed to adopt the amendment pro
posed in 1889 or to propose an amendment
itself. If. no other amendments Pending.
the Legislative Assembly in 1899 had re
jected the equal suffrage amendment.
after that action the way would have
been clear to propose the Initiative and
icierenoum amendment, anis, nowever.
was not the case In 1893. The four amend
ments were pending, and under the con
stitutional prohibition aeainst proposing
another at such a time it follows the equal
suffrage amendment was not legally pro
posed in 1895.
Any action taken unon the eaual suf
frage amendment, either by the Legisla
tive Assembly or the people, would not
affect the Validity of the action taken
upon the Initiative and referendum amend
ment. The facts concerning the eaual
suffrage amendment cannot be omitted
without leaving Incomplete any statement
of recent attempts to amend the consti
tution.
It thus annears the Initiative and refer
endum amendment was nroDosed and
agreed to ov the LetHslatlve Assembly In
1SS9, before that body passed the act sub-
miiung tne iour amendments proposed in
1893 and agreed to in 1S95 to a vote of the
people, in fact, the four amendments
were awaltlnir the action of a Legislative
Assembly when the Initiative and referen-
aum amendment was proposed, and tne
people did not vote on the four amend
ments until some 15 months afterwards.
lo avoid the effect of the clause of sec
tion 2. article 17. already Quoted, which
forbids the proposal of an amendment un
der such circumstances, the suggestion
has been made that the words "no addi
tional amendment or amendments"
should be held- to refer to amendment or
amendments to the pending proposed
amendment or amendments.
section l. article 1. reaulres that an
amendment or amendments must be en
tered in tne form airreed to. and the next
Legislative Assembly must agree to the
amendment or amendments In the form
presented. The possibility of change or
amendment in or to an amendment
already agreed to by one Legislative As
sembly by another is not contemplated
and the suggestion must be rejected as
(Untenable.
'ine action of the Legislative Assembly
upon the four amendments In the sessions
of 1893 and 1895 was in all respects regu
lar and' in strict conformity with the con
stitutional method provided ror the adop
tion of amendments.
Did the failure of the Legislative As
sembly of 1895 to pass an act to submit
tnesc amendments to a vote of the elec
tors oust the Legislative Assembly of
jurisdiction over the proposed amend
ments?
If the failure to enact the necessary law
at that session did not have that result,
then It was competent for any subsequent
Legislative Assembly to supply the omis
sion, and it was a duty that should have
been performed.
If tho convention which framed the con
stitution intended the act of submission
should be passed by the second Legisla
tive Assembly which considered a pro
posed constitutional amendment, and by
no other Legislative Assembly, it would
have been very easy to state that Inten
tion so clearly there need be no danger
of misconstruction or mlsunderstnndlne.
There is no room for doubt what Legis
lative Assembly must pass upon an
amendment already agreed to by a Leg
islative -AsseniDiy. it is provided that a
proposed constitutional amendment, If
agreed to by a majority of all the mem
bers elected to each or the two houses,
shall be referred to the Legislative As
sembly to be chosen at the next general
election, "and If In the Legislative As
sembly so next chosen such proposed
amendment or amendments snail be
agreed to by a majority of all the mem
bers elected to each house, then It shall
be the duty of the Legislative Assembly
to submit such amendment or amend
ments to the electors of the state and
cause the same to be published without
delay at least four consecutive weeks in
several, newspapers published in this
state, and if a majority of said electors
shall ratify the same such amendment or
amendments shall become a part of this
constitution." If the convention had de
sired to restrict the authority to submit
to -"the Legislative Assembly so next
chosen." it would have repeated the clause
as had already been done, or written the
word "of that" Instead of the words "of
the" after the word duty.
Indeed, had it been deemed material at
what time the voters should have an .op
portunity to act upon the proposed
amendment, which, after all, is the next
Important step In tho proceedings, after
Legislative consent has been legally ex
pressed by two succeeding assemblies a
provision would have appeared requiring
the proposed amendment to be voted upon
at the next general election, or at an
election called for that purpose.
There Is no such provision. The duty
and responsibility of fixing the date of
election devolved upon the Legislative As
sembly In the absence of any restrictions
contained In the constitution.
A consideration of article 17 leads the
court to the conclusion that In the matter
of time in this particular connection the
terms used must be held to be dlrectory
and not mandatory.
Commonwealth vs. Grlest, 195 Pa. St. 416.
State vs. Grey, 21 Nevada 378.
It was within the nower of the Legisla
tive Assembly in 1899 to submit the four
amendments, and these were therefore
legally pending when the initiative and
referendum amendment was proposed.
If it be objected that such a construction
will permit Legislative Assemblies to neg
lect duty and unreasonably delay the sub
mission of proposed, amendments, it may
be answered that the like objections are
equally applicable to, any consideration
of proposed amendments to the Legisla
ture. There is, however, a very practical
limitation of time that will constantly
operate to produce prompt and regular
action by Legislative Assemblies in sub
mitting to the electors of the state pro
posed amendments to the constitution.
If it shall be determined that while a
proposed constitutional amendment Is
awaiting actlor of c, Legislative Assembly
or of the electors no other amendment
can be proposed, considered or acted upon
in any way. and that any action taken
while a proposed amendment is pending
is void, public opinion win una a way to
secure prompt action.
It Is contended that because the Initia
tive and referendum amendment was sub
mitted to the electors of the state and
ratified by a large majority, all defects.
If any, in the preliminary proceedings are
cured and the courts are precluded from
Inaulrlnsr Into the validity and regularity
of the adoption of the amendment. Stated
In another form, tho proposition is that
the legality or illegality of a constitu
tional amendment Is a political or legis
lative question, and not a Judicial one.
There aro two sufficient answers to this
contention:
First The provisions of the existing
constitution are the law of the land and
were adopted by the people as electors as
tne paramount autnority ror tne govern
ment of the state. Its officers and neonle.
The people as electors have no power as
such to violate any of the provisions of
the law they have self-enacted. Until the
constitution has been amended according
to Its terms there Is no change in the in
strument. It Is the duty of the courts
and of the peoplo to disregard any alleged
amendment which has been proposed or
adopted contrary to tne provisions regu
latin constitutional amendments.
Second The authorities are practically
unanimous In holding that where It ap
pears the fundamental law 1. e., the con
stitution has not been obeyed In the re
spects wherein It provides the constitu
tion may be amended. It is the duty of tha
courts to so declare and to hold the
amendment Invalid.
Koehler & Lange vs. Hill, 60 Iowa, 543.
State vs. Powell, 77 Miss. 543.
Collier Governor vs. Frlerspn. 22 Ala. 108,
TniBtees etc vs. Mclver. 72 N. C. 80.
Westlnghausen vs. People, 44 Mich. 256.
The State vs. Swift. 69 Indiana, 505.
Llvormoore vs. Wade. 102 Calif. 113.
The State ex rel. vs. Tlmme, 54 Wis. 318.
State vs. Tooker, 15 Montana. 8.
State vs. Tuflv. 19 Nevada. 391.
It follows that the Initiative and refer
endum amendment wasrecelved and acted
unnn hv the Lerislatlve Assembly In 1899
contrary to the express and mandatory
provUlons of the constitution, and the re
sult la that it must be and is held to be
Invalid and no nart of the present const!
tutlon. The charter of the City of Port
ItfndV adopted In 1903, Is not affected by
the initiative and referendum amendment
and is held to be In full force rrom ana
after Its approval by the Governor.
SUPREME COURT HAS WORK AHEAD
Three "Weekii "Will Elapse Before
Case Can Be Passed On.
SALEM, Or., July 2. (Special.) The
news that the Circuit Court of Multno
mah County has declared the initiative
and referendum amendment null and void
did not come entirely as a surprise to at
torneys in Salem. -Opinions have been di
vided as to the legality of the manner In
which the amendment was adopted, and
even those who hold that the submission
of the amendment was in accordance
with Ikw admit that there Is .room for
argument on the other side.. On;' the I
other hand, those who Tjelleve that in the
submission of the amendment the pro
visions of the constitution were violated
have been compelled to concede that a
strong argument can be made in support
of the validity of the initiative and ref
erendum ' clause. This situation has left
a feeling of uncertainty, and It has been
clear for some time that the question
must ultimately come before tho courts
for decision.
If this case should be appealed to the
Supreme Court, as It Is presumed it will
be. the. question can be decided with but
little delay. By agreement of. the attor
neys the usual time for filing each brief
may be waived, and thus the case pre
pared for trial In about two weeks. In
answer to an Inquiry today, Clerk J. J.
Murphy said that there Is now only one
case on the docket that has not yet
been set for trial. Cases already set
will occupy the attention of the court
for two or three weeks. Unless other
cases come In ahead of it. the case which
raises the Initiative and referendum ques
tion could In regular order be reached
in about three weeks.
While the news which reached Salem
did not state the grounds upon which the
Initiative and referendum amendment
was declared void, it is presumed that
the court held that It was not adopted In
accordance with article 17, section 2, of
the constitution, which provides:
"If two or more amendments shall be
submitted at the same time they shall
he submitted In such manner that the
electors shall vote for or against each of
such amendments separately, and while
an amendment or amendments which
shall have been agreed upon by one leg
islative assembly shall be awaiting the
action of a legislative assembly or of the
electors, no additional amendment or
amendments shall be proposed."
This Is the section as It was adopted
and as It reads In the copy sent to Wash
ington and approved by Congress when
the state was admitted to the Union.
The copy retained here in the' office of the
Secretary of State omits the words "at
the same time they shall be submitted,"
near the first of the paragraph. The
section has always been published er
roneously In the Oregon compilations of
statutes, but If the language were ma
terial to the decision of a case the word
ing used in the copy sent to Washington
would doubtless govern.
There Is - great difference of opinion
among attorneys regarding the meaning
of the last provision of the section fol
lowing the word "and." Some promi
nent attorneys hold that the section
means exactly what It says, and that
while one amendment Is pending no other
can be proposed, while others maintain
that It means that while one amendment
Is pending no other can be proposed upon
the same subject. Supporters of both
views are anxious that the validity of the
Initiative and referendum amendment
shall be finally decided by the Supreme
Court.
Leading advocates of the initiative and
referendum have said that If this amend
ment should be held to be void they will
Immediately begin a campaign to submit
the question again in order that it may
be legally adopted. Opponents of this
measure declare that if it were submitted
again it could not receive a majority vote
of the people.
PREACHES SEXUALLIBERTY
Bnt Br. Laura Smith-Wood Denies
That She Advocates Free Love.
"The extravagant tastes' of- capitalist
women and the demands she makes upon
capitalist men la at the bottom of the
lrrespresslble conflict between capital and
labor."
This was the one good thing said by Dr.
Laura Smith-Wood, seer and prophetess
of free love, In her lecture before the
Thursday TJIght Club at Grand Army Hall
last evening.
Dr. Smith-Wood, In this. Inadvertently
hit upon a great truth, but save and ex
cepting this bit of sound philosophy her
arralgnument of existing conditions was
morbid and unhealthy. The eminent doc
tor objects, by the way, to the designation
"free love," and insists that she, Is
preaching "sexual liberty," but her un
savory creed by any other appellation
would be equally as noxious. Those pres
ent at the clinic were 50 members of the
aforementioned club and their Invited
guests. The audience, a mixed one, In
cluded boys and girls o tender years and
overdressed young .women who giggled
and blushed and giggled again at the for
bidden things which made up the greater
part of the discourse.
Dr. Smith-Wood was some time a prac
ticingphywlclan, graduate of a Boston med
ical school and wife to some man. The
realization that a great mission was hers
came her way, as realizations will, and
sho tore up her diploma and after a sea
son of fasting and prayer came out of her
sanctuary, which in this Instance was San
Francisco, and undertook the task of turn
ing the world over.
Dr. Smith-Wood is not a philosopher,
for sho trimmed her logic to Grant Allen's
"The Woman Who Did," and discussed
that erotic effusion seriously nor a scholar,
for she misquoted Tolstoi, nor a teacher,
for she did not attempt to prove her prem
ises. She is not a typical notoriety-seeker,
and seems sincere. In the darkness
sho clutched upon the one economic truth
that the woman behind the capitalist Is to
blame, but the rest of her message might
be whispered with small harm and no
profit at a country quilting.
She will speak again on Monday evening
In G. A. B. Hall at the hour of early
candle-llghtlng, and those- who yearn to
hear her may be assuaged.
POTTER SAILS THE FOURTH.
Many Portland People "Will Cele
brate This Year at N'orth Beach.
The fact that the Fourth of July falls
on Saturday and that the T. J. Potter
leaves at 1:00 that afternoon for North
Beach Insures a big passenger list for this
Sopular river boat. Many Portland people
ave arranged to make the trip down the
river that day and to spend Sunday at the
favorite North Coast resort. For particu
lars about the Potter and sailing dates, in
quire at the O. R. & N. City Ticket Agent,
Third and Washington streets.
in 9
rears
Soap for toilet, nursery,
bath and shaving. Match
less among all soaps in
the world for these pur
poses.
Sold all over the world.
UTLERY
EVE&mMEVfcBRANIED
BErErRS
l
Famous the World
Over
Fully Matured.
Order from
Fleckensteln-Mayer Co.
"Worth Its Weight in Gold"
HOXBAK. I. T.
DR. RADWAT & CO.. New York Gen tie
men: I send enclosed IT. O., for whloh you
will pleas send me one dozen Radwaj'a
Ready Relief and one dozen Radway's Pills.
Tour Ready Relief is considered hareabouts
to bo worth its weight la gold. This is why
I am Induced to handle it. I have handled
OH for some time, but I consider
the R. R. R. far superior to this, as it give
tetter satisfaction. J. if. ALEXANDER-
Radway's Ready Relief cures Headache,
Toothache. Neuralgia. Rheumatism, Lumbago,
pains and weakness In the back, spine, or
kidneys, pains around the liver, pleurisy,
swelling of the Joints and patna of all kinds.
The application of Radway's Ready Relief
will afford Immediate ease, and Us continued
use for a few days effects a permanent cure.
Sold by druggists. V
BE SURE'TO GET RADWAY'S
Face
Was Always Very
Pale and Thin.
Nervous Prostration
Faint Spells.
Dr. files' Nervine Saved
My Life.
There is great danger m a run down,con
dition. Overwork, mental strain, the cares
and worries of business and the home, all
have a deleterious effect upon the nerves,
which in their devitalized condition readily
fall prey to the attacks of disease. a Aside
from the danger there is no condition at
tended by so many disagreeable symptoms;
such as loss of appetite, indigestion or nerv
ous dyspepsia, headache, tired feeling, and
loss of ambition together with the agony of
sleepless nights spent in tossing restlessly
about, only to rise exhausted in the morning.
Dr. Miles Nervine is a true nerve tonic
which, by strengthening the nerves, restores
health and appetite and brings sweet sleep.
'Tor six years I suffered almost constantly
from a complication of troubles which culmi
nated in complete nervous prostration. I
had no appetite, I could not sleep, I suffered
from indigestion and nervousness. As is so
often the ease in, nervous prostration I fre
quently hjd weak, fainting spells. Doctors
aid not help me. They said my blood was
vrff nnor nnH T Vnnw mv face was olwaVS
J very pale. The very first bottle of Dr. Miles'
nervine j. iouk. gave iac nuutcuuic icuu auu
I felt stronger than I had in years. My
neighbors in Puyallup, Wash., where I then
lived will testify to this. I also used some of
Dr. Miles' Restorative Tonic and Anti-Pain
Pills. I believe the Dr. Miles Remedies
saved my life." Mrs. J. C Benedict, Tuck
er, Utah.
All druggists sell and guarantee first bot
tle Dr. Miles' Remedies. Send for free book
on Nervous and Heart Diseases. Address
Dr. Miles Medical Co, Elkhart, Ind.
' CURIOSITY.
Lends to Investigation and Truth.
What shall we do to be saved? was the
title of one of "Robert Ingersoll's lectures.
People of faith and people of no faith
flocked to hear It. Thousands are ask
ing. "What shall I do toget rid of dan
druff?" The answer is, "Kill the germ
that causes dandruff, falling hair and
finally baldness: and the only thing that
will do It Is Newbro's Herplclde. That
Is the very latest discovery of the labor
atory, and It is the only preparation that
claims to, or that will, kill the pestifer
ous dandruff germ. It also Is a delight
ful hair-dressing, free from oil or grease
or sticky substances. Try It and be con
vinced of its actual merit. Sold by lead
ing druggists. Send 10c In stamps for
sample to The Herplclde Co., Detroit,
Mich.
Is Interested smt slionlil know
about tho rronderfnl
MARVEL Whirling Spray
The New Ladles' Syringe
Best. Safest, iloat
Convenient.
itk Tier draczlst far It.
1 1 h cannot anpily the
MAR1KI.. Acrmtno
other, bnt end stamit for Il
lustrated book eilot.lt selves
fall particulars and directions la.
valuable to liwlic. InVKX,CO..
Room 230 Tim Bdr.. New
York.
For aale by Woodnrd, Clarke & Co.
MftL-MlDY
Thcsetiny Capsules are superior
to Balsam of Copaiba, ""S
Cubcbsorlnjedionsu.imIDafJ
CURE IN 48 HOURwVCx
the samo diseases without
inconvenience.
Sold by all druggists.
WILCOX TAMSY PILLS
I F&rpOreara the only aeie and reliable J?- 5
S male Jtesslatsr tor all troubles. Ballevea g
3 within Z tmys. AX dragglate, or by aau. g
Pjlca fa. fr trial ''Taarr " aa4 s
"Wcnu&to td a card" Jk Itc MA&tm
ITS
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DR. KLINE'S GREAT
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!( Tit iOct BnttirlBM.
COKSTjITATIOIT, mhuI r lioia. Imfri laa
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3jitct Bimmi, gpuopgy .ppaains, au viraa
Daecc, DatllltT, ExhiUBtlon. fmMim.
iB I.K ff.lji931 AfchSt., Phtbfrlphk,
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THE PALATIAL
OREGON BUI
igfl!! 11 IBiDign;
Not a clarlz office In the nnlldlnsi
absolutely fireproof; electric light
and. artesian water; perfect sanita
tion and thorough ventilation; ele
vators run. day and nlgat.
Booms.
ANDERSON'. GUSTAV. Attorney-aWLaw..613
ASSOCIATED PRESS; E. L. Powell. ilgr.SOd
AUSTEN". F. C., Manager ior Oregon and
Washington Bankers Life Association ot
Des Moines, la 302-303
BAAR, DR. GUSTAV. Phys. and Surg. .807-803
BANKERS LIFE ASSOCIATION OF DES
MOINES, IA.; F. a Austen. Mgr.. .3-303
BENJAMIN, R. W Dentist 3X4
BERNARD O., Cashier Co-Operative- Mer
cantile Co 212-213
BINSWaNGER, OTTO S.. Physician and
Surgeon 407-403
BOGART, DR M. D.. DENTIST 705
BROCK, WILBUR F.. Circulator Orego-
nlan . 501
BROWN. MYRA, M. D.". 3I3-3U
BRUERE. DR. G. E.. phys 4U-412-413-414i
CAMPBELL, WM. M., Medical Referee
Equltabla Life 700
CANNING, M. J G02-603
CARDWELL, DR. J. R.. DenUst 50
CAUKIN. G. E., District Agent Travelers
Insurance Company ................ ..718
CHICAGO ARTIFICIAL LIMB CO.; W. T
Dickson. Manager .................. .....001
CHURCHILL, MRS. E. J 71S-7U
CLINTON. RICHARD, state manager Co
operative Mercantile Co.. 212-213
COFFEY. DR. B, C. Surgeon 4U5-40U
COGHLAN, DR. J. N ..713-714
COLUMBIA GRANITE CO., 41T-118
CONNELL, DR. E. Da WlTT. Eye, Ear,
Nose and Throat... ..... 013-014
CO-OPERATIVE MERCANTILE CO.; J. F.
' Olsen. Gen. Mgr.; U. Bernard. Casnier..212-13
CORNELIUS, C. W.. Phys. and Surgeon. .2wtl
COLLIER, P. F Publisher; S. P. McUulre,
Manager ..415
DAY. J. G. & L N 313
DEVERE. A. E. - 403
DICKSON, DR. J. F., Physician 713-714
EDITORIAL ROOMS ....'...Eighth Floor
EVENING TELEGRAM 323 Alder Street
EQjyiTABLia LIFE ASSURANCE SO
CIETY; L. Samuel. Mgr.; G. S. "Smith.
Cashier 30fl
FENTON. J. D., Physician and Surg..SOU-510
FEN TON, DR. I11CKS C. Eye and Ear... 511
FENTON, MATTHEW F.. Dentlsi 309
GAL VAN I, W. H., Engineer and Draughts
man GOO
GEARY. DR. E. P.. Phys. and Surgeon.... 408
GIESY, A. J.. Physician and Surgeon... 709-71(1
GILBERT, DR. J. ALLEN. Physician.. 401-403
GOLDMAN, WILLIAM, Manager Manhat
tan Llto Ins. Co. of New York... ...209-210
GRANT. FRANK 3., Attorney-at-Law ttll
ORIS WOLD & PHEGLEY. Tailors-
131 Sixth Street
HAMMAM BATHS. Turkish and Russian..
300-301-303
HOLLISTER. DR. O. C, Physician and r
Surgeon 3O4-305
IDLEMAN, C. M., Attorney-at-Law 615-Cia
JEFFREYS, DR. ANN1CB F.. Pbys. and
Surgeon, Women and Children only.. ....400
JOHNSON. W. C ...315-31tt-31T
KADY, MARK T Supervisor ot Agents.
Mutual Reserve Life Ins. Co..... 60S
LANE, K. L., DenUst 313-314
LAWBAUGH. DR. E. A .. ....804-805
LAWRENCE PUBLISHING CO 417-413
L1TTLEFIELD, H. R.. Phys. and Surgeon..2ul
MACKAY, DR. A. E., Phys. and Surg..711-7ia
MANHATTAN LIFE INSURANCE CO. OF
NEW YORK; W. Goldman; Mgr 209-210
MARSH, DR. R. J., Physician and Surgeon
- 300-310
McCOY, NEWTON, Attorney-at-Law 715
McELROY. DR. J. G..Pbys. & Sur.701-702-70a
McFADEN. MISS IDA E..Stenographer...201
McGINN, HENRY E., Attorney-at-Law.311-ia
McGUDHE. 3. P., Manager P. F. Collier.
Publisher . 418
McKENZIE DR. P. L.rPbys. and Surg.312-513
METT. HENRY 213'
MILLER. DR. HERBERT C. DenUst and
Oral Surgeon B03-009
MOSSMAN, DR. E. P.. Dentist 313-514
MUTUAL RESERVE LIFE INS. CO.;
Mark T. Kady, Supervisor of Agents.C04-O'
NICHOLAS. HORACE B.. Attorney-at-Law.718
NICHOLS, THE DRS., Phys. & Surgns.60S-60T
NILES, M. M-, Cashier Manhattan Life
Insurance Company, ot New York 20S
NOTTAGE, DR. G. H., Dentist. 09
OLSEN. J. F.. General Manager Co-Operative
Mercantile Co 212-213
O'CONNOR. DR. H. P.. DenUst 309-31Q
OREGON INFIRMARY OF OSTEOPATHY
409-410
OREGON1AN BARBER SHOP; MARSCH
& GEORGE. Proprietors.. 128 Sixth Street
OREGONIAN EDUCATIONAL BUREAU;
j F. StrauhaL Manager ....209
PACIFIC MERCANTILE CO."; F. M.
Schwartz, Agent .. ..211
PAGUE, B. S., Attorney-at-Law... 313
PORTLAND EYE AND EAR INFIRMARY
......... Ground Floor, 133 Sixth Street
QUIMB y! " L. P. W., Gams and Forestry'
Warden .713
REED, C J.- ExetruUve Special Agent
Manhattan Life Ins. Co. of New York... 209
REED WALTER. Optician... 133 Sixth Street
RICKENBACH. DR. J. Eye. Ear, Nose
and Throat - 7i-TO3
R03ENDALE. O. M.. Metallurgist and
Mining Engineer 318
yYAN J. B., Attorney-at-Law. .... .315
SAMUEL. L-. Manager Equitable Life 308
SHERWOOD, J. W.. State Commander; K.
O. T. M - 517
SMITH DR. I E- Osteopath.. ....409-410
SMITH GEORGE S., Cashier Equitable
t .fa ' - 303
ctolTE. DR. CHAS. E.. Dentist.... 704-705
SURGEON OF THE S. P. RY. AND N. P.
TERMINAL CO 708
SUPERINTENDENTS OFFICE 201
TUCKER. DR. GEO. F.. DenUst 610-611
VESTER, A.. Special Agent Manhattan
Life - 209
WENDLING. DR. ROBT. F.. DenUst 705
WILEY. DR. JAMES O. C Phys. & Sur.703-9
WILSON. DR. EDWARD N., Eye, ear, nose ,
and throat -04-305
WILSON. DR. GEO. F.. Phys. & Surg.706-70T
WILSON. DR. HOLT C". Phys & Surg.307-303
WOOD. DR. W. L.. Physician.. 411-412-413-414
Offices may Ie had by applying to
tne superintendent ot the bnlldlas
room -01, secoad. floor.
MUM NO CURE
iTlLn HOfAY
.,t- urtTVETTnM APPLIANCE A Dosltivn
way to perfect manhood. The VACUUM
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THE HEALTH Al'PLLVNCE CO.. rooms 47-43
gala Deposit building. SeatUe. Wash