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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (March 8, 1911)
PAGE SIX. DAILY CAPITAL JOURNAL. SALEM, OREGOX, WEDNESDAY, .MARCH 8, 1811. OREG0I1 PORT COMMISSION ACT (Continued from page three. whether the emergency Is a proper con clusion to be drawn from such facta. But no such strict rule hampers the legislative branch of the state gov ernment It has the exclusive power to declare that Its enactments are necessary for the Immediate preserva tion of the public peace, health or safety, and that hence an emergency exists on account of which the act Bhall take effect when the legislative process, as applied to the act In ques tion, Is fully completed. In the case of Dallas v. Hallock, 44 Or. 258, the emergency clause under consideration reads thus: "Inasmuch as it Is nec essary for the immediate preservation of the public health and public safety of the inhabitants of the said city of Dallas that the provisions of this act should become effective at the earliest possible time, an emergency Is hereby declared to exist, and this act shall be In force and effect from and ajter IU approval by the governor." This court there, following Its earlier de cision In Kadderly v. Portland, 44 Or. 118, sustained the emergency clause In question. Following those precedents we de termine that the emergency clause here In sufficient to put the act pro viding for the incorporation of ports Into effect according to the terms of section 10 of the act. But It Is' said that this act was to take effect from and after Its approval by the governor and that no affirma tive approval having been signified by the governor the act never could take effect, at least not until 90 days after the end of the session at which it was enacted, Section 15 article 5 of the constitution provides that "every bill which shall have passed the leg islative assembly shall, before It be comes a law, be presented to the gov ernor; If he approve, he shall sign it; but if not, he shall return It with hla objections to that house In which It Bhall have originated." If, after re consideration, two-thirds of the mem bers of both houses shall agree to pass the bill It shall become a law. The section further provides: "If any bill shall not be returned by the governor within five days (Sundays excepted) after It shall have been pre sented to him, It shall be a law with out hla signature, unless the general adjournment Bhall prevent Its return, In which case It shall be a law, un less the governor within five days next after the adjournment (Sundays excepted) shall file such bill, with bis objections thoreto, in the office of the secretory of state, who shall lay the same before the legislative as sembly at its next session In like manner as If It had boon returned by the governor," In Biggs v. McBrlde, 17 Or. 640, the act there In question had an emergency clause requiring the act to take effect from and after its approval by the governor. The governor vetoed the bill and the legis lature passed it over his objection. In that case this court, In substance, hold that the act took effect when the law making power had done every act or . thing necessary under the constitu tion to Its complete enactment as a law. The same principle applies here. Considering the governor as a part of the legislative power by virtue of his prerogative to approve or object to any act of the legislative assembly yet the constitution gives effect to his Inaction ib well as to his affirma tive action In Buch caHes. As already stated, the twenty-fifth regular ses sion of the legislative assembly ended February 20, 1909. Tnklng judicial notice, as we must under section 729, I.. O. I... of the public and private of ficial acts of the legislative and ex ecutive departments, we know tlint the act In question, having passed the legislative assembly, was pre sented to the governor; that he did not roturn It within five days to tho house In which It originated, but on the con trary delivered It to the secretary of state February 12, 1009. The governor was not prevented from returning the till by the gonoral adjournment of the legislature, for that did not hap pen until eight days thereafter. Un- dor such circumstances the constitu tion expressly says the bill shall be law without his signature. X con clude, that in respect to the act In question tho legal process of making It a law was complete when the gov ernor did not return the Mil to the houso whence It originated within five days from the date It was present ed to him and that all Its provisions, lucludlng the emergency clause, be came effective at once on the comple tion of that process. It Is further contended that this act la unconstitutional in that It pro vides for offices tho tenure of which shall be longer than four years, thus violating section 3 of article 15 of the constitution. Conceding that these commissioners are officers within the meaning of that section, yet It must be read In connection with section 12 of article 2, which states that "in all cases In which It Is provided that an office shall not be filled by the same person wore than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term." The design of the act empowering the governor to point the first commissioners was sim ply to establish a temporary arrange ment for beginning the work provided for in the act and the appointment by the governor should be considered a pro tempore appointment within the meaning of the constitution The act further provides that "no commissioner shall either directly or indirectly receive any salary or com pensation for hla services as a com missioner, or for acting as an officer of the said corporation." The gen eral effect of the act in question Is to make these commissioners mere agens for the performance of certain agents for the performance of certain are not officers within the meaning of the constitution prescribing that the tenure of an office shall not be more than four years. David v. Port land Water Co., 14 Or. 98; State ex rel, v. George, 22 Or. 142; White v." Mears, 44 Or. 215. By the provisions of the act already quoted the Judges and clerks are re quired to return the canvass of the vote together with the ballots cast to the county clerk of the county In which the election la held. In that connection the complaint alleges "that the judges and clerks of said special election did not return the cauvass of the vote, together with the ballots cast thereat, to the county clerk of said Coos county, Oregon, in which said county said special elec tion was attempted to be held; but these plaintiffs do allege that said returns left the possession of said judges and clerks of election, and were forwarded to the county clerk of said county In the manner pro vided for by the general election laws of the state of Oregon, but not In accordance with said port law." The law governing general elections requires that "one complete set of the tally sheets and the poll book which was kept by the second clerk, ballots and stubs, ballot baxes, and remaining supplies, shall be forthwith conveyed by one of the Judges or clerks of the election, to be agreed upon for that purpose by the judges, to the county clerk of the county, L. O. L., section 3328. It is admitted by the complaint that the election re turns of the election in question were thus forwarded to the county clerk. The effect of the argument of coun sel for plaintiffs Is that all the judges and all the clerks should unite and attend in carrying the election re turns to the county clerk. If the statute in question were capable of that construction, yet in the absence of fraud or corruption none of which appears, we hold that such provision would be merely directory. Equity looks to the substance and not to the form. For all that appears here the returns reached the county court pure and undofllod and truthfully dls closod the result of the election. The plaintiffs' objections on that ground are not well founded. We come now to the principal con tention in the case: that of the valid ity of tho election In question. Coun sel for plaintiffs pressed upon our at tention the cases of Mnrsden v. Har lockor, 48 Or. 95; Guernsey v. Mc Haley, B2 Or. 605; and Roesch v. Henry, E4 Or. 230, and insisted that thoHe cases were doclslve of this case and must inevitably load to a reversal of the decree of the circuit court on the ground that the election involved In this litigation was void. All these three cases arose under and required a construction of what Is known as the local option law, regulating the Bale of intoxicating liquors. In Mnrsden v. Harlocker it appeared that the county court of Coos county did not meet in regular or speclul session or assemble at the .!..... ll.. j ... , . i'i" u iiiim jirwBuriueu vy mw lor the purpose of ordering a local np- Hon election In pursuance of a pe tition therefor which had been filed with the county clerk, but that nt dif ferent times and in different places the Individuals composing the court had Binned a memorandum purporting to authorize nn election. This court In that case held that by such separ ate actions of the Individuals com posing the county court, no authority had been given for the holding of such an election. The local option luw requires that at leuat 20 days provlous to nn elec tion ordered by the county court the county clerk shall deliver to the sher iff of tho county nt least five notlveB of the election for each election pre cinct of the county voting on the question, and It shall be the duty of the Bherlff at least 12 days before the election to post such notices In public places in the vicinity of the polling place or places. Both the sheriff and the clerk are ree.ulred to enter of rec ord their compliance with the pro- visions of the section requiring the Is suance and posting of such notices: In other words, both of said officers are required to make return to the county court of their proceedings re specting the giving and posting of the notices. In Guernsey v. Mcllaley It appeared that although tho county clerk had Issued and delivered to the sheriff the requisite notices for the local ap tlon election, none were posted in one precinct, In another the notices were posted for only 11 days and in another only 10 days before the election, and I nanother only three notices were posted and these only for eight days. The election resulted In a small ma jority In favor of prohibition, and in a suit brought br a firm of retail ap-;,lquor dwleri ,0 enJo,n th, court from making an order prohibit - lng the sale of Intoxicating liquors in accordance with the election the court held that the election was not sufficient to authorize the court to make the order. In Roesch v. Henry the rigor of the rule laid down In the preceding cases was somewhat modified. In that case the only defect In the posting of the notices was that the sheriff had posted only three Instead of five notices In one precinct, but It was made to appear to the court that If all the votes In that precinct had been cast against the prohibition of the sale of intoxicating liquors, yet In the whole county there would still have been a very considerable ma jority in favor of prohibition, and under those circumstances the court sustained the election. Like the act In question here, the local option law requires a petition signed by a certain percentage of the legal voters and upon the petition being presented in proper form the county court issues an order for the holding of an election. The local op tion law contains particular provisions about the manner of giving notice of an election in that It requires the clerk to Issue to the sheriff five no tices for each precinct and imposes upon the sheriff the duty of posting all these notices in the several precincts and further calls for a return from both of those officers as to their do ings in that behalf. Under the law providing for the Incorporation of ports the county court makes the or der for the election. It Is required that notices of the time of such spe cial election shall he posted In each polling precinct In which such meas ure Is to be voted upon In like manner as Is provided for In cases of general elections. In section 3307 L. O. L., It is provided that "it shall be the duty of the county clerk, thirty days before any general or presidential election, and at least ten days before any special election, to prepare print ed notices to each Judge and each clerk of election In each precinct; and It shall be the duty of the sev eral judges and clerks to Immedi ately post said , notices In public places in their respective precincts," but nowhere la It provided that the Judges and clerks of the election shall make any return to the county court of having performed the duty of post ing the notices. In the case at hand It appears that the clerk mailed the notices to the election officers as provided in section 3307, supra. The only response pro vided by the general election laws to be made to the notices sent out by the clerk is found in the returns of the election. We thus see In the mat ter of giving and posting notices of the election that there Is quite a ma terial difference between the provis ions of the local option law construed in the three cases last above men tioned and the act In question In this case. Further, In the three local op tion cases above mentioned the injunc tion was sought before any action by the county court in declaring the re sult of the election and making the order of prohibition. In the case In hand no action was taken by or on be half of the plaintiffs until long after the county court had received the re turns and proclaimed the result of the election and the establishment and existence of tho Port of Coos Bay as a municipal corporation. A further distinction can be drawn between the two cases In this: That the direct effect of the order of the county court in the local option cases declaring the result of the election and making an order of prohibition against the sale of intoxicating liquors would be to destroy the busl ness of the plaintiff and make It nn- lawful to engage therein, whereas be- , "kku iu itiwiiu ouHinss. in tnis case the mere holding of tho election and mak ing a proclamation thereof by order of the county court had no direct ef fect on any property right of the plaintiff. The establishment of the port does not In Itself necessarily Im ply taxation or appropriation of plain tiffs' property. They are possible secondary results; but the ports have other sources of revenue in charges for pilotage, towage, salvage, etc, which may be applied to the payment of the proposed bonds. The elements authorizing action by the county court are different in the two cases. In the one the county court had before It In the sheriffs re turn, that he had failed to post no tices In some Instances, evidence that its authority to act was defective. In the other the only things giving the! county court a right to act were the original petition praying for an elec tion and the election returns sent In by the Judges and clerks. The coun ty court in the proceeding Involved here had nothing else-before it and had no means provided by law for otherwise acquiring any information about the election. That court could not do otherwise than to act upon the materials which the law had pro vided for It and it having appeared by the returns of the election that a majority of the votes had been cast In favor of the Incorporation of the port the court could do nothing less than to proclaim the result In the form provided by the statute. In legal ef fect the law has lodged In the county court the power to order a special election when a proper petition for that purpose has been presented to it and, further, whea the returns of' , the election have come back to it by I virtue of such an order, invests it with the further duty of proclaiming the result of the election and the es tablishment of the port as a munici pal corporation. This action of the county court, although largely min isterial In its nature is conclusive as against collateral attack. Warner v. Myers, 4 Or. 72; People v. Willi, 147 111. App. 207; Woodard v. State, 103 Go. 496; State v. Cooper, 101 N. C. 684; State ex rel v. Vail, 53 Mo. 97; Gibson v. Twaddle, 81 Pac. 727; Hoy v. State ex rel, 81 N. E. 509. For all that appears these' defend ants acted in manner and form after the county court had declared the election Just as commissioners would have done had the election been In all respects as required by law, What, then, Is the real question to be determined here? It is to all Intents and purposes whether or not the de fendants properly hold the office of commissioners of the port Injunc tion will not lie to determine that question. Iu Biggs v. McBrlde this court held that mandamus was not the proper proceeding to try the title to an office, and the principle there announced Is equally applicable to an effort in that direction by injunction, for Injunction Is complementary to mandamus, the one being preventive and the other affirmative exercise of the power of the courts. As illustra tive of the principle that injunction Is not the proper remedy to try the title to an office the following cases will be found instructive: Fletcher v. Tuttle, 42 Am. St. Rep. 220; Arnold v. Henry, 78 Am. St. Rep. 556, 155 Md. 48; State ex rel v. Wlthrow, 154 Mo. 397; People v. Dist Court, 93 Am. St Rep. 61, 29 Colo. 277 68 Pac. 224; Cochran v. McCleary, 22 la. 75; Cozart v. Fleming, 31 S. E. 822; Davis v. Ctyy Council, 17 S. E. 110; In re Sawyer, 124 U. S. 200; Peaple v. Elbert Diat Court, 46 Colo. 1; Hotchklss v. Keck, 84 Neb. 545. To reach the result desired by the plaintiffs the court is asked to override the exercise of political power by a co-ordinate branch of the government in appointing these offi cers and, having done so, to go still further and overturn in this collateral proceeding the order, and proclama tion of the county court of Coos coun ty, a tribunal specially authorized to declare the result of an election which It confessedly had the power and au thority to order and, finally, to deter mine that the defendants had no title to the positions of commissioners of the port. We do not conceive that the equita ble power of the court extends so far. If the plaintiffs would determine the title to the positions held by the de fendants, recourse can be had to the remedy provided by section 366, L. O. L., stating that "an action at law may be maintained in the name of the state, upon the Information of the prosecuting attorney, or upon the re lation of a private pary against the person offending, In the collowlng cases: 1. When any person shall usurp Intrude Into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office In a corporation either public or private, created or formed by or under the authority of this Btate; or 3. When any association or number of persons act within this state, as a cor poration, without being duly .Incor porated." We conclude that the plaintiffs have a plain, speedy and ad equate remedy at law under this sec tion for the grievances of which they complain, having which, their suit in equity in this form will not lie. We further conclude that as dls closed by the record here, the de- fendants were at least de facto corn- mlssioners of the Port of Coos Bay, and that their acts are valid so far as described In the complaint here. Leach v. People ex rel, 122 111. 420! Mer. Nat. Bank v. McKinney, 2 S. D. 106. The mere fact, as disclosed by the complaint, that the defendants had passed an ordinance providing for the Issuance of bonds but without providing any means for their pay ment, whether by taxation or other wise, does not necessarily involve any property right of the plaintiffs. It would be time enough for the plain tiffs to complain if then when the defendants shall attempt to levy a tax upon the plaintiffs' property for the payment of such bonds. These considerations render It un necessary to go behind the returns of the election or to Inquire whether or not the election was property con ducted In the manner of giving no tice thereof. The decree of the circuit court is affirmed, with costs. A Old, La Grlppr, Then Pneumonia Is often the fatal consequences. Foley's Honey and Tar expels the cold, checks the la grippe and pre vents pneumonia. It Is a prompt and reliable cough medicine that con tains no narcotics. 'Foley's Honey and Tar is the best cough remedy 1 ever used, as It quickly stopped a severe cough that had long troubled me," says J. W. Kuhn. . Princeton, Neb. Just so quldkly and surely It acts in all cases of coughs, colds, la grippe and lung trouble. It Is as safe tor your children as yourself, and should be used In all eases of croup, whooping cough and measles. Re fuse substitutes. Red Cross Pharmacy. Notice of Intention to Establish the Grade of Mill Street from the Cen ter Line of High Street to the Cen ter Line of Commercial Street. Notice Is hereby given that the common council of the city of Salem, Oregon deems it expedient and pro- j Britain, on the 31st day of December, poses to, establish the grade of Mill ( 1910, made to the Insurance Commls street from the center line of High j sioner of the State of Oregon, pursu street to the center line of Commer-,ant to law: clal street, within the limits of said city, according to the provisions of a certain ordinance entitled "An ordi nance establishing the grade of Mill street from the center line of High street to the center line of Commer cial street." Said ordinance was In troduced in the common council of the city of Salem on the 2th day of February, 1911, and was read the first and second times at said meet ing and referred to the committee on streets, and said ordinance is now on file In the office of the recorder of the city of Salem on the 27th day of nance Is hereby referred to for a more specific and detailed descrip tion of said grade, and is made a part of this notice. hereby This notice is published for 10 days pursuant to the order of the common council of said city, and the date of the first publication thereof ia the 28th of February, 1911. Remon strances may be filed against the es tablishment of said grade within 10 days from the last publication of this notice, and in the manner provided by the city charter. CHAS. F. ELGIN, 2-2 8-1 5t City Recorder. 0 Warning to Railroad Men. Look out for severe and even dan gerous kidney and bladder trouble resulting from years of railroading. Geo. E. Bell, 639 Third street, Fort Wayne. Ind., was many years a con. ductor on the Nickel Plate. He says: "Twenty years of railroading left my kidneys in terrible condition. There was a continual pain across my back and hips and my kidneys gave me much distress, and the action of my bladder was frequent and most painful. I got a supply of Foley's Kidney Pills and the first bottle made a wonderful Improvement, and four bottles cured me oompletely. Since being cured I have recommended Foley's Kidnsy Pills to many of my railroad friends." Red Cross Phar macy. Children Cry FOR FLETCHER'S C ASTO R I A Get it at Dr. Stone's Drug Store West Salem Transfer Passenger Baggage Connects with all trains at West Salem for Dallas, Falls City and Salem. Leaves Journal office for West Salem at 8:40 a. m., 12 m., 1:10 p. m. and 4.00 p. ni. every day except Sunday. Also for Independence, Mon mouth and McMlnnvllle. Leaves Sunday at 8:00 a. m., 1:00 p. m., and 5:15 p.m. Calls at hotels on request.' Telephone or leae orders at Capital Journal office any day but Sunday. Phone 32. J. B. Underwood, Mgr. Celebrated Lear Funuic. The Best Heater" It will save you tn- iey every day yoi own it. I ell aid natal the best Let me give you figures. See Me About an individual lighting plant for your home. The best thing la the market for cooking and lighting A. L. Frasier Phone 135. SS). State Stret pra yl WHHI' '"MU. i : f !.- v 1 if HIHHIHIIMrt,' . I , . .4I1I1II1I1L-. re for backac rheumatism, kidninr n, m.jj Foley". LlaacyPill. purify MARINE, AM) tIRE AND MAEIXE. Synopsis of the Annual Statement of the United States Branch of THE LONDON ASSURANCE COB- rOBATIOX Of London, in the Kingdom of Great Capital Amount ' of capital de posited 630,000.00 Income. Premiums received dur ing the year in cash... $2,561,091.24 Interest, dividends and rents received during the year 120,283.41 Income from other sources received during the year 213,888.27 Total income $2,895,262.92 Disbursements. Losses paid during the year $1,261,730.37 Dividends paid during . the year on capital stock Nil Commissions and salaries paid during the year... 727,574.78 Taxes, licenses, and fees paid during the year.. 66,484.64 Amount of all other ex penditures 134-.426.17 Remitted to Home Office. . 385,412.69 Total Expenditures ...$2,575,628.65 Assets. Value of real estate owned Nil Value of stocks and bonds owned $3,015,145.00 Loans on mortgages and collateral, etc Nil Cash In banks and on hand 176,768.38 Premiums in course of collection and In trans mission 427,843.26 Due from other compan ies for re-insurance on losses paid 8,626.11 Interest and rents due and accrued 37,430.41 Total assets $3,665,813.16 Less special deposits In any state (if any there be) Total assets admitted In Oregon $3,665,913.16 Liabilities. Gross claims for losses unpaid $ 299,768.14 Amount of unearned pre miums on all outstand 2,049,888.05 ing risks Due for commission and brokerage 11,496.10 All other liabilities 109,585.19 Surplus 1,195,075.68 Total liabilities $3,665,813.16 Total insurance in force December 31, 1910 ..$323,092,562.00 Business In Oregon for the Year. Total risks written during the year $5,717,932.00 Gross premiums received during the year 104,274.58 Premiums returned dur ing the year 29,206.59 Losses paid during the year 187,668.10 Losses incurred during the year 185,211.10 Total amount of risks outstanding in Ore gon Dec. 31, 1910... 4,542,736.00 LONDON ASSURANCE CORPORA TION. By EDWIN PARRISH, Joint Manager. Statutory Resident General Agent and Attorney for Service: ROD E. SMITH, Portland. DERBY & WILLSON, Resident Agents. Try a Journal want ad. Salem's most poular res taurant THE WHITE HOUSE We cater to the public who demand a good meal for a small price, Wm. McGilchrist & Sons. FIRE, The Bosom Sets Flat The Btud button holes exactly meet, the neck band does not bind on your neck; button holes exactly meet buttons, no bulging front, in fact a perfect lit If we launder your shirts. It lg done with our new STEAM PRESSES, which do not .ub or burn the fibre, but MOULD the cuffs, neck band and bosom to a PERFECT SHAPE. Try the new work. Vislton welcome. Salem Steam Laundry 130-lttfl South Liberty Street mm ft ati b w w the blood rtZTZ. '' RED CROSS PHARMACY. Synppsls of the annual statement of the AMERICAN CENTRAL LTJE ,v SURAXCE COMPANY. Of Indianapolis, in the state of indi ana, on the 31st day of December" 1910, made to the Insurance Coinl missioner of the State of Oregon pursuant to law: ' Captal. Amount of capital paid up $ 137,000 Income. Premiums received during the year 887,019 Interest, dividends and rents received during the 149,962 Income from other sources received during the year 2,871 Total Inwme $1,039,882 Disbursements. Paid for losses, endow ment, annuities and surrender of values ... $ 279,130 Dividends paid to policy holders during the year 11,026 Dividends paid on capital stock durlmj the year. . 10,960 Commission and salaries paid during the year. . 265,742 Taxes, .licenses and fees paid during the year. . 17,941 Amount of all other expen ditures 89,827 Total expenditures 674,626 Assets. Market value of real estate owned 472,350 Market values of stocks and bonds owned .... Loans on mortgages and collateral, etc 1,275,745 Premium notes and policy loans 895,966 Cash In banks and on hand 94,041 Net uncollected and defer red premiums 71,203 Other assets (net) 30,495 Total assets $2,839,770 Less specal deposits in any state (If any there be) Total assets admitted in Oregon $2,839,770 Liabilities. Net reserve $2,412,015 Total policy claims All other liabilities 30,342 Capital stock ,. . . . 137,000 Total liabilities $2,579,357 Total insurance In tore December 31, 1910, paid for basis ' $25,837,230 1 Business In Oregon for the Year. Total risks written during year - $ 56,175 Gross premlus- received during the year ...... 1,024 Pjremiums Teturned dur ing year ............ Losses paid during year.. Losses incurred during year Total amount of risks out standing in Oregon De cember 31, 1910 $ 79,175 AMERICAN CENTRAL LIFE IN SURANCE COMPANY. Satutory resident general agent and attorney for service: W. S. Montgomery, Hood River, Oregpn. . c o No Need to Stop Work. When your doctor orders you t stop work It staggers you. "I cant'' you say. You know you are weak, run down and failing In health day by day, but you must work as long as you can stand. What you need is Electric Bitters to give tone, strength and vigor to your system, to prevent break down and build you up. Don't be weak, sickly or ailing when Elec tric Bitters will benefit you from the first dose. Thousands bless them for their glorious health and strength Try them. Every bottle Is guaran teed to satisfy. Only 50c at J. C. Perry's. Gold Dust Flour Made by the SYDNEY POWER COMPANY, Sydney, Oregoa. Made fcr Family Use. Ask your grocer for It ' Kraa aad Whorta always oa bsa4. P. B. WALLACE, Agt. Phone 2.1 mm M4 Urinary "-'" it,C"-