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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (June 25, 1907)
DAILY CAPITAL JOURNAL, SALEM, OREUON. TUESDAY, JUNE 23, 1007. HW ARGUMENTS AGAINST THE REFERENDUM (Continued from pngo ono). Malnrkoy'H Contention. Mr. Malarkoy cited a Nebraska declBlcm that upheld a law declaring that petitioners must give their ago when, signing the petition. It re ferred to proof of bona fide signa tures, tho genuineness of which It attacked In this caBe. Ho argued Mat becauso the legis lature roqulred certain forms to bo complied with, that requirement was material, and must bo complied with. Legislative requirements woro mandatory, not merely direc tory. Ho charged that signers woro secured for selfish purposes or for pny. People signed then for solf Uofonsc. Ho also charged that peo ple would sign nlmoBt any petition. Only B per cent hnd to bo secured to sign tho referendum petition. Tho 015 psr cent nlso had a right to be "heard, Tho leglslaturo wanted to prosorvo .tho purity of tho ballot. Mr. Malarkey contended that no ono 'Could bo prosecuted for signing tho potltlons Illogally, when tho warning "was omitted from tho head of each uhoet. Ho said to cscnpo harrasa- niont lib had signed al) potltlons pre Hontcd to him, Ho had probably Hlgned 8omo twlco. Prominent men had Hlgned hoiiio of tho potltlons twlco. If tho contention Is sustained by tho court that It Is mandatory .to print tho warning against signing a potltlon Illogally, nil referendum pe titions prepared this yoar will bo nullified. TIb groat argument for his contention wns that statutory ro quIromontH to provont frauds In elec tions, petitions and all political pro ceedings woro hold by tho courts to bo mandatory. Judge Wolmlicr'H Review. .Tudgo Webster wild ho would not offer hlniHolf as a witness, as Mr. Malarkoy had done In this cubo. Ho could present n far different stnto of factB If lu wont upon tho witness stand, He contended that It wns not nucosKiiry to prove tho hmt legisla ture guilty of any absurdity. It had eonvlctod Itself. Tho warning clniiBO was not required by tlo law to bo printed on tho potltlon. Peoplo who tdgnod potltlons indiscriminately would not bo deterred by forty warn ing clniiHOH. TIIM FOHUS UKKK 1N GIVIJN AUK NOT MANDATORY" was tho language of tho statute itsolf That nuido them morely directory. Tltfj law wont further and said no merely clerical nnd tochnlcal defect Hliould defeat a petition for tho ref erendum. Tho law did say It was a felony to sign .these petitions twlos or Illegally, but It wns not tho peti tion or part of tho petition Itself, Hy tho very torniH of tho law tho warn ing was not a part of tho potltlon. The powur of tho roforondum was exorcised by the people of tho stnto, nnd signing It made th oslgiiora In dividual potltlon, tho Individual re Bponslvo action of onoh slgnor. The absurdity of tho petitioner holding out a rod Hag of warning to himself, warning himself against committing a felony against himself. Kvory American cltlzon was presumed to know tho law. Why did they attack this technical woaknoss alono, when there was half a dozen such technic al loopholos, and It was almost Im possible to got up one of these po tltlons that was technically correct, Tho leglslaturo could tlo up nil tho constitutional rights of the people with absurd technicalities. With Its power to attach an emergency clnuso tho leglslaturo could nullify tho right of tho people to annul tho con stitution lUolf. If sont by a man, Instead of "brought by a man," it was clearly illegal. Tho law Itsolf CAN DRAW CHECKS. . . Chocking accounU enable folks to doposlt tholr monoy and re col vo a passbook, against these nccounta thoy are- permitted to draw cUeckB. Checks may be glvon to parties for such Butna as desired, thus avoiding frequent trips to the bank, It iutoroitod call and see us. Salem State Bank X. X. PAQK, FrMat. X. W. HA3AKD, OaaMtr. did not specify that tho warning miiBt bo part oftho petition. There was a general presumption that these petitions were genuine, nnd honestly and fairly obtained. If the substantial right thing has been done, If tho spirit of the law and con stitution have been complied with, this should stand. Thoy woro at tacking a defect, not a single signa ture was caflcd In question. Thero was no lack of compliance with tho Bplrlt and general purpose of tho law. Whether ono bill or tho other stood or fell was not material, as a far deeper question was Involved. It was hero contended that on a merely tochnlcal dofect. In a special act of tho legislature could defeat tho sol emnly enacted amendment to tho constitution. Could tho fundament al rights of tho peoplo bo nibbled away by constant encroachment. This referendum amendment! was a solomn declaration by tho peoplo that thoy stand above tho legisla ture. Tho unlimited nnd unbroken powor of tho leglslaturo to make laws mded when tho direct legisla tion amendment was added to the constitution. Tho people woro placed abovo tho leglslaturo and nnd above tho government, and Judge WVjb stor contended th legislature hnd no right to deflno tho form of potl tlon or tho stylo of same. It mani festly and lntontlonnlly attempted to limit and embarrass tho constitution In tho lnw of tho recent legislature All that was required wns that five por cont of tho voters Blgn n potl tlon for th'o roforondum, and fllo It with tho secretary of state, and whether It wns rolled on a corncob nnd tied with a tow string, or on pink paper scented with somo deli cate perfume, ns tho legislature might doolnro, ns was contended by counsel ngnlnst tho referendum. Thero was no legislation permitted as to tho forms of tho potltlon. Tho legislature could provldo for submit ting tho questions roforrcd to tho peoplo after tho petitions are got up and filed. Tho onnctmont of tho last legislature, hedging about tho right to submit potltlons with nil kinds of technlcnl dolnlls and rod tnpo, was In dcrogntlon of thj rights guaran teed to tho pooplo by tho constitu tion, waB clearly unconstitutional. More Technicality. Mr. Malarkoy In reply nttneked tho position of Judge Webstor, that tho wnrnlng wns not part of tho pe tition. Ho argued that ovory word of tho law must bo considered in tho construction of tho law. "Why didn't tho legislature sny tho warning should procodo and bo a part of tho potltlon?" asked tho nttornoy-gonornl. "It monnt that It should precedo tho pBtltlon If It did not say so," said Malarkey. Mr. Malarkoy then mado somo oxtendod gonornl re marks Intended to illumlnnto tho mind of tho court, but In which tho reported could not trnco tho slightest relation to tho Biibjoct In controver sy. Ho still hinged all his conten tion on tho warning clnuso bolng omitted as a fatal dofect of tho po tltlons. Mort by Webstor. Ho offored ns rejoinder that tho dlroct legislation clnuao of tho con stitution was Bolf-actlng. It re quired no hand-out Information from a sot of men calling thomsolvoa log hlntnrs whoso aggrcgato wisdom was no groatcr thnn of any othor equal number of mon. A Word by Crawford. Tho attorney-general said tho warning wns not In nny sonso a nec essary part of the procoduro of sub mitting a matter to a vote of tho pooplo. It stntod no fact nocessary to tho determination of anything, and houco was not mntorlal. Ohjcvtetl to lllnghnm. Upon Geo. 0. lllnghnm being an nounced a asgoclato counsel, attorneys- for tho Linn county counsol objected to his appearing hi a gener al mnnner. Unless ho showed his authority or stated who employed him, ho could not nppenr. Ho then stated that he appeared for the Unt- vorslty. Mr. Poguo snld tho Unlvorslty had said In tho pross that thoy would not appear In tho case. Thoy had no right to Intorplond. Tho University was not a party to the caso, and had no right to appoar. Thoy woro not par ties to tho record, nnd ho (lied a writ ton motion of protest at tholr ap pearing in a enso In which thy had thus far failed to show their hand. Mr. lllnghnm said ho nppenrod for tho secretary of stnto. Rut that did not satisfy tho counsol for tho farm ors. Mr, Crawford Bald ho wns per fectly willing Mr. Bingham should appear with him as associate counsol for tho secretary of state. Ho did not employ him, and had no author ity to do so. Tho court ruled that If Mr. Bingham Bald ho appeared for tho secretary of state that ended it. The University Case. In oponlng Attoraey-Geaeral Craw ford said there was so question In volved la tats case, but the defect of tho tltlo of the bill on the pstl tlon. No oxnet copy of the bill wa3, attached to tho petition. Ho waived the alleged dofect as to tho warning clause not being at the heads of tho potltlons, or tho slzo of tho paper, or legality of signatures. Mr. Poguo's Argument. Ho contended that many of tho precedents from other states had no bearing on this case, as this state was acting under a new system, that In the constitution itself was self enactjng. Direct legislation was a new departure In which tho peoplo sought to protect themselves against outrageous laws. Tho peoplo re servo dto themselves tho primary right to vote on all laws Imposing now taxes, and all laws guarantee ing the right to a vote on any matter were construed liberally In favor of tho citizen and against tho officials attempting to limit that right. Such rights could not bo abridged by an unreasonable act of tho legislature. It appeared from tho record that tho plaintiff sent a reliable agent to tho secrtary of stato for a copy of tho bill sought to bo referred. Ho did not ask for a certified copy, and was given a copy of the bill as Intro duced In tho legislature. After wards tho tltlo to .the bill was amend cd, not so as to chango tho title, but to mako it road In addition that It repealed a certain section of tho code. Tho initiative potltlon re quires a full and correct copy of tho "tltlo and text of tho measure," and tho roforondum petition shall con tain a full nnd correct copy of .the "measuro." Tho "menBuro" was tho law sought to bo referred to tho peo plo, and tho tltlo of tho statute was not a part or tho bill. Tho .tltlo was a legitimate aid In ascertaining tho meaning and Intention of tho legislature. The tltlo was part of an act, but not a part of tho measure or tho law. Was tho potltlon good without tho tltlo in full?. Tho law was defined and specified by tho tltlo. This po tltlon did sot out a full and correct copiy of tho measuro Itsolf. Ho Bh'owcd tho court several titles of bills enacted by this very leglslaturo with titles so long that no room would remain for a single signature, to say nothing of a copy of tho meas uro Itsolf. It was absurd and unrcnBonnblo to say that this was a mandatory provision of a complicated enactment by a cnroless legislature. Tho peo plo had n right to vote on this mat ter, and .thoy asked that tho statuto bo followed In Its plnln terms and tho right tho pooplo hnd must bo construed In a roanonnblo mnnner. ns a strict construction would mako this law Imposslblo to bo followed. What Crawford Snld. Tho nttornoy-gonornl argued .that tho law of Juno 7, 1902, required legislation to carry it into effect. Ho donlod that tho direct legislation amoudmonts worx not Bolf-ennctlng Gonornl laws woro enacted ns .to tho manner of oxcrclslng Inltlatlvo nnd roforondum Ho did advise tho sec retary of stato to rojoct tho potltlon for tho Unlvorslty roforondum for tho reason thnt It did not set forth a correct copy of the bill including tho title. Technical and clerical er rors did not pormlt comploto omis sions of a part of tho wholo of tho tltlo. No man's opinion could do cldo what was substantially tho net In question. "Could nny mnn who rond thnt pe tition fall to understand whnt ho was signing?" asked Ford, "I will admit that no ono wns de ceived," snld Crawford. '"Rut tho peoplo must havo somo rule to go by, If tho leglslaturo passed a bill as dofectlvo as this ono Is, the courts would not sustain It. By direct leg islation wo must procoed as carefully as tho luglslnturo Itsolf. It would not do to depart from tho forms laid down, and tho only safe rulo was to follow tho law. To follow tho law substantially would not do In enact ing laws, and wns not safo In repeal ing thorn. No omissions could bo tolorntod. Ho cited many learned authorities ,to sustain his contention thnt thero can bo no omission of nny ono thing contnlned In tho orlglnnl. This bill attached to tho potltlon did contain a comploto omission of tho words from tho tltlo to tho section of tho codo ropenled. Tho repealing clause omitted from tho tltlo was ombodlod in tho measuro itsolf that wns nttached to tho people. "A full and true copy of tho moasuro" moant tltlo and all, and thnt could not be flgurod out. "How do you harmonlzo tho dlf- feronco botwecn tho requirements for tho inltlatlvo potltlon of a full copy of 'tho tltlo nnd the measure, and In tho requirement for tho ref erendum potltlon of the 'measuro' only?" asked M, Pogue. Mr, Crawford did not "harmonize," but he did a stunt of well-trimmed and clearly-deflned trimming and word-spelling, and most admirably dodged the question. He reiterated his statement that he did not hold I Out Gteat Closing Qt$t Sal IS EASY EVERY WAY The Prices and Values Make It So $2650 Dressing Tables - $20.25 $22.00 e $ 2 850 $15.50 $ 1 5.00 44 44 44 44 44 44 44 $ 1 7.50 $JZ65 $J.50 $10.90 Cat pets, Rugs, Linoleums, Wall Papers And Everything We Sell This Gigantic Are Included in Sale THE HOUSE FURNISHING CO. 1 77 Liberty Street I tho warning required by tho statuto to bo material, but ho thought tho tltlo was material. Mr. Bingham Talks. Ho Bald ho did not wish to got at cross-purposes with tho attornoy goncrnl, nnd said tho court might reverse tho counsol for state as to tho notlco of wnrnnlg. Mr. Ford objected to Mr. Bing ham attacking tho dofectlvo warning clause. Tho mandamus proceedings wero undor stipulation, thnt nothing wns attacked In this proceeding but tho question of tltlo. Tho Unlvorslty had bcon publishing that tho re gents of tho University wero not taking n part In this proceeding. Tho gontlomnn was butting In whoro ho did not bolong. Mr. Dlnghnm said ho folt flatter .d at tho objections of opposing coun sol. Counsol had orred In not se curing a certified copy of tho bill. Thoy had taken an incorrect copy, and now excused themselves for their blundering. The cold question to bo determined hen wns a quostton of fnct. Was this roforondum peti tion proparcd nnd filed In compliance with law? Ho claimed it was not. Ho thon wont on to show tho tech nical dofrct In tho petition, and why It wns rojected. Mr. Bingham closed tho afternoon's forensic dis play with an ablo review of tho con tentions of tho Unlvorslty regents, In tho guise of appearing for Secre tary Benson. Hon Til Ford's Argument. Tho cases cited In support of op posing counsel nro not appllcnblo, for thoso petitions wero drawn under a mandatory law, commanding that certain things bo compiled wltb. Tho referendum law of Oiegon Is not mandatory, but directory, and bo dis tinctly statos. Tho referendum, as far as tho form of potltlon It. con corned 19 simply directory, and Is, In fact, but a suggestion as to tho form of tho potltlon, a guldo as it wore, which tho law says shall bo substan tially compiled with. Tho word "substantially," and its meaning, baa much to do In the caso. It means that If all tho essentials are stated, tho form of their statement is im material. The statutes says they 6ball "substantially bo as follows." It does not say this form of petition should be followed. Mr, Ford then analyzed tho statute, showing the mandatory parts thereof and its di rectory. The size of the paper Is mandatory, seven inches wide and ten Inches long, and that only 20 names shall be on each page thereof. It would have bees, and is impossi ble to prlat la full the title, etc., on tho paper of tho slzo mado manda tory, and leave room for 20 names, but tho substnnco of tho act can bo put thoreon, leaving bucIi room, and It Is fair to presume that tho leglsla turo would not havo onnctod a law Imposslblo to havo boon compllod with, and this inforenco Is empha sized by tho langungo of tho net Itself, thnt tho substnnco of tho mat tor necessary to bo put upon such petitions would bo sufficient. Mr. Ford took up tho title of tho act, nnd showed thnt tho tltlo of tho amendatory act waB fuller than nec essary, stating much that could have been loft out. Tho old tltlo, tho tltlo used In tho roforondum potltlons covers tho wholo matter, and Is dor tnlnly all that Is roqulred to glvo notlco to any man of common Intel ligence what tho Intontlon and tho object of tho petition was, and when that 1b done all that the law requires Is dono. An abstract of .tho law, or an abstract of tho tltlo, so It substan tially complies with nnd stntes tho facts is suulciont, nnd tho people of tho stnto should not bo cut off from tholr rights by somo technicality, the non-corapllanco with which mlBload no ono, and injures no ono. Oiq Law la Effect. Tho Inltlatlvo law Is dlfforont and Is mandatory, and states that "a true copy of tho tltlo and text of tho measure shall bo attached to tho potltlon." Tho referendum does not roqulro this. Tho title Is part of a bill, but it Is not part of the law. Therein lies tho necessity of putting tho tltlo in tho Initiative, because, tho constitu tion requires it, It being part of the act. Judge Ford thought It romarkablo that all tho lawyers who drow a ref erendum petition overlooked tho warning clause, If it was necessary, but it was not remarkable when it was taken Into account that they each construed tho law tho same way, that Is that tho warning clause had nothtng to do with tho petition. "Judge Bingham came up to rep resent the University of Oregon, which is taking no part in this case," said Mr. Ford, "and finally wormed Into tho caso through tho courtesy of the attorney-general, though ho had no business in the caso as tho Unlvorslty of Oregon is not a party to tho case." Tho Uni versity of Oregon appropriation is tho bono of contention between the petitioners on one side and the isuc rotary of state on the other, aad it shows the remarkable spectacle of the boae taking part la the fight." Mr. Ford thea explalaed the IKtl. Joker In tho bill, tho nigger la the fwoodplle, being tho clause In the bill, which made do provision for re turning nny surplus . to the state, should tho entire appropriation be unexpended. It was tor this reason tho governor vetoed It. Tho point was mado that the lair did not go Into effect uutll May 25, becauso the emergency clause pro vldod It should go Into 'effect on the approval of tho governor, hut m the governor did not jjpjirovo It, It had to tnko Its course of 90 days before It could go Into effect, and so the old law was In effect at tho time the p tltlons woro filed, and this law th potltlons In tho caso compiled with. o Teiunni'iit Collapsed. Now York, June 25,-Serea chil dren, nil members of an Ilallau fam ily, woro crushed to death this morning by the collapse of a tene ment. Firemen dug scores of in jured from tho ruins. iTHE I ELEVENTH iHOUR It Is not quite that hk J the sale of the crocker, S ware and dlsbea at or rtw But they will soon be til t . ......... m kJf ' A as tner are ueus - -.mM ' cost, to make room for " groceries. j H. M. BRANSON Phonel31. 432SteSt "gS!! ! Gold Dost Flow mtftV WW' UW bT IB "" ., I - TuroAV-r. iUartt " w-"r:: .iaii Made i tuwT "TU, alwajs m h P. B. Wtf 1 AGENa '' m 4i"