Image provided by: University of Oregon Libraries; Eugene, OR
About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Jan. 30, 1912)
OREGOII SUPREME COURT DECISIONS ' (Continued from Pagt i.) slon before ue bad done mor than lay ,endum, Petition, ana men U,e foundation of the building. He had for the initiative ana .or . pick applns from that tree; that II was very close to the worm of the fence. He also Identifies the other trees and briars, and other Indica tion on the ground, of the fence line. Jesea Edward, who has been there 29 years, testified as to a haw tree that. Indicate distinctly whore the fence was, Its limbs having spread between the rails; that the apple true stood In the corner of the fence" and the roue brlar along the fence all Indicated the fence row. Honklns, who lived there since 1879 says: "There was a fir tree stood well up to where that road Junc tloned with the Portland road, up clone to the corner (the N. K. corner of block 12) farther down probably six rods there was an apple tree; and mill farther down, but a little east or a little west was another apple tree, but before you net to that apple tree there was a haw titiHli or thorn, erab-tr or something stood between the apple trees . The lower apple tree ws Inside of the field . The fir tree and tho first apple tree wb very nearly the corner of the lock of the fence . The thorn tree was out In the fluid a lit tie;" and except the one apple tree, they were In the line of the fene. Oliver, Butler, C, J. Edwards, Ves tat, Hagcy and Smith, all testify more or lees definitely as U the brl art, the thorn tree, apple trees, and the fir, as Indicating the line of the fence. The testimony of W, It. Ever est and Ornnvllle Everest, sons of David Everest, tends to contradict the hu nt Inn of the apple tree, the stump of which Is , still ' Ktandlng within defendant's building. It had been many yean since they moved away from their father's place and they have not noticed the trees much since, and evidently Identified the tree Hint the other witnesses say was out from the fence a little way as the one evidenced by tho stump. The other witnesses state that the tree In the fence row bore yellow apples, while the Evorests say that the tree they have In mind bore striped Bp pies, and their testimony Is nut con vlnrlng. The evidence tends In show that there were three apple trees, two In or near the fence and one lower and out from the fence a lit' tie, and the Everest must have In mind the one out from the fence. And w conclude that these tress, es pecially the haw tree and apple tree mump Indicate the Une of the fence which was built In 1471 and stood there until probably ISM or later, a period of 14 years, and has served as barrier or boundary of the rosil on the northwest aa traveled and used by the public. We have before us also Uv county surveyor's field notes of the road filed In the road proceeding In 1871, and It Is conceded that the portion of tha survey between angle 20 and SI Is the portion of the rond Involved here, and In those notes the course Is Riven "N. 6V4 degrees E," Witness Herring, who gives us hi tracings of the Everest tract, runs that line on the course N. 47 degrees, 20 minutes E , bleug lid minutes east of the county surveyor's course. Tills elan teiuls to corroliornte plaintiff's con I -nt ton ss to (lie location of the fence st block 11 This is further cor roborated by the location of a black smith shop hullt at the present site of the new building, H.nllh testified Hint this new building Is longer llmu the old shop. "This building Is a great deal longer (it extends further south) especially the east part of It extends a great many feet fsr- sufflclcnt knowledge to put him on Inquiry and what bo did - thereafter he did at bis peril. He admits that he left the construction of the back end of the building to the last and put In an extra force of workmen to rush Dint CAPITAL JOCBXAU '"'- n. trMPAT. JANl'ARY 30, 1918. 1 i URS. SCOTT'S SMUG OVER dum shall be filed with the secretary pt state"," and In submitting the same to the People be, and all other officers shall be guided by the general laws and the act submitting this amend ment, until legislation shall be eBpe- the work before he could be stopped, I dally provided therefor." and he cannot now be heard to com plain. And we conclude that the apple tree stump, now within a part of de fondant's building, and the haw tree southwest of It and on block 12, indi cate approximately the line of the fence as originally built and deter mines the northwest boundary of the road adjacent to block 12; that Is to say, that the two trees mentioned Indi cate the Inside line of the fence worm. referred to In the evidence as a four foot worm, while the outside line of the worm must be the boundary of the rond. Judgment of the lower court Is re versed. Schuliel t. Olfolt, Original Jurisdiction Decided January 23, 1912. O. A. Schubel, plaintiff, v. Tien W. Olcott, defendant. Original Jurisdic tion. Argued and submitted January 1912, C. E. 8. Wood, W. S. U'Ren, E. S. J. McAlllHter (Williams, Wood & Mnthlcum, and Ersklne Wood on the brief) for plaintiff. A. M. Crawford, attorney-fttneral. F. W. Mulkey (J. H. Van Winkle, James W. Crawford on brief) for defendant, llenn, J. Per emptory writ ordered. Dean, J. This Is a proceeding In mandamus, Instituted In this court un dor the provisions of Art. VII, section 2, of the constitution of Oregon, adopt ed November 8, 1910, for the purpose of requiring the defendant, ns secre tary of stale, to file an Initiative peti tion for a local law for the county of Clackumos to exempt from tnxatlon all trades, ' labor, professions, business, occupations, personal property and Im provements on, In and under land, and to require that all taxes levied and collected wlthlu suld Clackamas county shall he levied on end collected frrfm the assessed values of land and other resources, separate from the Im provements thereon, and on nnd from the assessed value of public service corporation franchises and rights of way. The following facts are alleged: That suld petition was prepared and circulated In compliance with an act of the legislature of 1907, entitled, "An act to provide for carrying Into effect tha Initiative and referendum Powers reserved .by the people In section 1 and section la of article IV of the constitution of the state of Oregon on general, local, special and niunlclpnl legislation; to regulate elections thereunder; ." That the petition was signed by six hundred and sev enty-four legally qualified voters of the county of Clsckamus, more than the percentage required for that pur pose; that the same was presented to defendant for filing, who, awaiting the opinion of the attorney general rein tlve to filing, receipted therefor, and thereafter refused to file such pet I Hon; that defendant, as secretary ' state, is the legal custodian of all mol petitions ss the one offered by plain tiff for filing, and Is the official with whom the law provides (Hat all Inl tlatlve and referendum petitions a) liertalnlug to the slate as a whole, or a district thereof, shall be filed; that by virtue of suld legislative act, plain tiff if entitled to hnve the petition filed according to the terms thereof. To the allornnllv writ of mundaunn deft niliiiit answered in effect, that un der the laws said petition should not be filed. It Is contended by the attorney gen eral and counsel for defendant that Art. IX, section la, of Hie constitution of Oregon is not self executing: that counties are not municipalities within the meaning of Art. IV, section in of the constitution, and that the proccd Art. IV, section la, adopted June 4, 1906, relating to the Initiative and ref erendum on local, special and munici pal laws, and parts of laws, Is as fol lows: " The Initiative and refer endum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district, as to all lo cal, special, and municipal legislation, of every character. In or for their re spective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may pro vide for the manner of exercising the Initiative and referendum powers as to their municipal legislation. Not more than ten per cent of the legal voters may be required to order the referen dum nor more than fifteen per cent to propose any measure, by the Ini tiative. In any city or town. Art. IX, section la, proposed by inl tlatlve petition and adopted by a ma jority of votes at the election Novem ber 8. 1910, provides as follows: "No poll or head tax shall be levied or col lected In Oregon; no bill regulating taxation or exemption throughout the state shall become a law until ap proved by the people of the state at a regular general election; none of the restrictions of the constitution B'.iall apply to measures approved by the people declaring what shall he subject to taxation or exemption, and how It shall be taxed or exempted whether proposed by the legislative assembly or by Initiative petition; but the people of tho several counties are hereby em powered and authorized to regulate taxation and exemptions within their several counties, subject to any gen eral law which may be hereafter en acted." Art. IV, section 1a, nnd Art. IX, sec. tlon la, of the constitution, are not self-executing In respect to counties as they make no provisions regarding the manner of their enforcement. Ity the first of these, the Initiative and referendum powers reserved by the people are further reserved to the le gill voters of every municipality and district, as to all local, special and municipal legislation of every churac ter, In their respective municipalities and districts. By the second, the Peo pie of the several counties are empow ered and authorized to regulate taxu tlon and exemptions within their sev eral counties subject to any general law which may be hereafter enacted, In Art. IV, section la, It Is specifically provided that the manner of exercis ing such powers shall be prescribed by general laws except as to cities and towns, neither section containing rules by means of which this right may be given the force of law as regards local legislation In counties. Cooley's Con stitutional Limitations, 7 ed. 121; Long v. City of Portland. B.I Or. 92, 96 Iteeves v. Anson, 13 Wash. 17 (42 I'ac. HI!.') ; Stevens v. Benson, B0 Or 2119. Hence we must look at the gen rul laws of this state for the manner of executing these sections of the or ganic law. Turning to the legislative enactment of 1907, being sections 2470 et sequl, L. O. I.., It appears that tho legislature Intended to and did make Doctors Advised An Opera- tlon. How She Escaped Told By Herself. monstrates that the presumption does not prevail In the particular case, nothing remains except to enforce It. j The thing which we are to seek is the thought which it expresses. To ascer tain this, the first regort in all cases is to the natural signification of the words employed, In the order of gram matical arrangement In which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning Involving no absurdity and no contradiction be tween different parts of the lnstru- ! ..... i nminronf fill IWVner Mo. -"For more than a year ,ment, then tnat meaning, ,., -.- -s J, I)U,RIIClf - " ----- - . from female trouDies "ft"' i J....,. .f onu uie uwwt" -lost decided there was no help for me unless I went to the hospital for an oper ation. I was awfully against that opera tion, and as- s iaai resort wrote to you for special advice and I told you just what I suffered with bearing down pains, backache, shooting pains in my left side, and st timeB I could not touch my foot to the floor witnoui KraumuB. I was short of breath, bad smothered spells, felt dull ond draggy all the time. I could not do any work, and oh how I dreaded to have an operation. "I received a letter full of kind ad vice, which I followed, and if I had only written her a year ago I would have been saved so much suffering, for today I am a well woman. I am now keeping house again and do every bit of my own work. Every one in this part of the country knows It was Lydia L. Pinkhom's Vege table Compound that has restored me to health, and everywhere I go I recom-i mend it to suffering women." Mrs. Lizzie' Scott, Buckner, Mo. If you want special advice write to lydla E. Plnkham Medicine Co. (confl dentlal) Lynn, Mass. Your letter will be opened, read and answered by a woman and held in strict confidence. IN REACH ther back than tht'uther part. The i lire Indicated by section 370 et sei. east pan or me old imllilliiK was short." Purgutnn gives the dimen sions of the old shop on the wnat side U O. I-. does not apply to them. The theory of plaintiff Is that Art. IV, section In. confers upon counties ss I feet 1 Inches shorter mirth ami 1 the power to Initiate county legists, south thsu the new building, and 10 'tlon; that the set of 1907 provides the feet I Inches shorter on the wilt side. I machinery by which such may Indicating that It waa wholly Inside jut w?!:. inst Art. IX. section Is. the line of the old fence: U was gives to counties the power to regit- lmlll wh- .. location of the fence late taxation within their boimdaiiet could Hut hvt been lu doubt, thus Indicating that defendant's acts lu ex tending the new building tni the first encroachments at that point lit )md ih line of the fence, Everett and hi turcvsmiit In Interest louud by the location of the fence as Indicating the north west boundary of the rond. Defendant pleads eetoppel against lh city, tint the estoppel alleged is that plslnttrr has reoigiilied the fence for mora than ten year a the north wei line of the mail. Iiiu as we hsve found that the fei c was the north nt boundary of the rud w need nut enter Into ny dlriilntt of (lit estop, pel. Neither defendant lior his prode eni lisve occupied the lot beyond the fence ll.it , here found nor been Induced by any ,-( of the rity to dii any set or make any ttpendlture upon the ground beyond the feme line. The deed from Kveivst to Kuivt, prior inner of defendant's lot, do.- not glv the eiaot dimension of the lot Conveyed bill convoys to the cen ter of the coed "aubrc to all road claims." t'efendsiit knew that there wss a question as to the location of the street line; talked about It with th chairman of Iht ttreet commit- In order to consider the iiiestlons presented, we will refer to the por Cons of the amendments of the organic law or this state, applicable thereto. The flint, adopted by the people June art'!. 1!0!. being Art. IV. section 1. relat- nig io legiauiivt authority, style of bill. Initiative and referendum, makes, among other, the following provis ions: "The legtstatlvt authrolty of the state shall be vested In a legislative aeintdv. consisting of a senate and house of representatives, but the peo ple rc'wve to themselves power to I ropote laws sud amendments to the f ouKtltutloii and to enact or re i the nam at the poll, Independent of the legislative assembly, and lo reset v a power at their own option to approve or reject at the mlls any act of the lealslatlv aeeembly. The first power reined ,y (he pepU Is the Initia tive, and not more than eight per cent of the leant voter shall be re Quired to propone any measure by such petition, a iil every such petition shVI Include the full text of the measure so proposed. Initiative petitions shall be filed with th secretary of state not leas than four month before th election at whlrh they art to bt voted uKn. The lecond power la the rfer- lent Import, for a district legally cre ated from a designated part of the state and organized to promote the convenience of the public at large Is a municipal corporation." A county la a municipal or quasi municipal corporation comprising the Inhabitants within Its boundaries, and formed for the purpose of exerclBlng the powers and discharging the duties of local government, and the adminis tration of public afralrs conferred upon It by law. Words and Phrases, Vol. 2, 1656; 11 Cyc. 342. A county Is not, in a strict sense(, a municipal corporation. In a certain seiiBe It comes within the rules and principles of law applicable to such corporations. Words and Phrases, Vol. 2, 1656. Judge Dillon, In his work on Municipal Cor porations, Vol. 1 (5 ed.) on Page 25, says: "In general, all of our American cities, towns and counties are public corporations, full or quasi. They are created by the legislature, and are in vested with power to decide and con trol local and subordinate matters per taining to their respective localities." In Straw v. Harris, 54 Or. 437, we find this language: "Municipalities are but mere departments or agencies of the slate, charged with the perform ance of duties for and on its behalf, and subject always to its control." See also Words and Phrases, 4622. On page 131 of the same opinion (Straw v. Har ris? Mr. Justice King speaking for the court snys: "To begin, let It be remem bered that municipal corporations of the class under consideration do not come within those, designated ns coun ties, cities or towns, and that It was all the necessary rules for carrying (intended that municipalities other than Into effect the initiative and referen- m10ge enumerated might be created, is dum provlalons of the constitution. lobvlous from the lanuuaue used in The following legislative decrees af firm this In directing that if the sec retary of slate shall refuse to accept and file any petition for the Initiative or for the referendum, any cltlxen may apply, within ten days after such re fusal, for a writ of mandamus to com pel him to do so: section 3474, L. O. !,.; that when a measure shall be filed with the secretary of state to be referred to the people of the state, or of any county or district compooed of one or more counties, either by the section nine of the same article, numely: 'No county, city, town or other municipal corporation,' etc. The clause other 'municipal corporation' clearly Implies and Indicates that the f Turners understood and recognized that there may be corporations other than those enumerated, of which we have school districts, irrigation dis tricts, road districts, drainage dis tricts, and ports. ." In 8lmon v. Northup, 27 Or. 4S7, u cose construing the legislative enact- teglslatlvt assembly, or by the refer- nient reqrlng Multnomah county to eiimim pennon. iy measure shall be proMited by Initiative petition the secretary of state shall forthwith transmit to the attorney-general of the state a copy thereof, and within ten days thereafter the attorney general shall provide and return to the secre tary of slate a ballot title for such measure: section S47S. U 0. 1,. An examination of section i (3476. f. O. U) of the same act reveals that the reason of the legislative rule re quiring the filing of an Initiative pe tition with the tecretary of state, when only one county Is Interested In the measure, Is to avoid contusion in the numbering of the Initiative measures on the ballot. It Is urged that this act was passed prior to the amendment of the consti tution contained In Art. IX. section 1. I and Is not applicable thereto. Though the machinery for carrying this amendment Into effect was created tiefore the birth of the amendment, yet aurh machinery or provisions of th enabling act. fit with almost exact nicety, and we do not think it nec essary for the people or the legislature to re-enact the provision of (hi law. In Acme Hairy Co. v. Astoria, 49 Or 5:'0, f:3. this court, speaking through Justice Moore, lu construing IV. section la, ssld: "Th words 'munic ipality' and 'district' at used In the clan of th amendment adverted to art evidently axpretslona tif equlva- pay the bond of the city of Vortlsnd w quote from the brief of the learned counsel, at page 492, at follows: "The legislative assembly cannot transfer from one municipality (city of Port land) to another (Multnomah county) an Idetitedness already resting on the former and make It an obligation of the latter." In Cook v. Th Port of Portlnnd, 20 Or. 5S0, 585, Mr. Justice Pean quote with approval from the case of Curry v. The Dlst. Twp, of Sioux City, 62 la. 104. ns followt: "The word mu nicipal, as originally used In its strict ness, applied to cities only; but the word now has a much more extended meaning, and when applied to corpor ations the words iiolltlcal. municipal end public are used Interchangeably." A county Is a public corporation classed with cities, townt and villages, and Invested with aiihordlnate legis lative powers to be exercised for local purposes connected with the public good and subject to the control of the state. 2 Kent. 275. In construing a written constitution the object is to give effect to th Intent of the people In adopting It. In the case or all written laws. It Is the Intent of the law giver thnt is to be enforced. Put this Intent Is to be found In th Instrument Itself. It Is to bt presumed that language ha been employed with sufficient precision to convey It. and unlets examination de- ... . to iii. nnlv one we are at no us laA-d 10 . - erty to say waB Intended to be con veyed. In such case there is no room for construction. We have no right to add to or take away from that mean ing. Endllch Interpretation of Stat utes, section 507; Cooley's Constitu tional Limitations, 7 ed., p. 69. It is undoubtedly true that a con stitution Is a law differing irom min utes In Its paromount force in cases of conflict, being supreme u. a- - them (Cooley's Constitutional Limita tions, p. 78). A constitution which provides for the future as well as the present Is to be interpreted bo as to carry out the great principles of gov ernment, and to this end the applica tion of arbitrary rules of construction Is to be resorted to with hesitation and only with much circumspection. Endlich's Interpretation of Statutes, sec. 606. As to what laws are local or spe cial, we notice the following authori ties: "An act Is local when the sub ject relates to a Portion only of the neonle or their property, and may not, either in Its subject, operation, or Im mediate necessary results, affect tne people of the state or their property In general." 36 Cyc. 987, note, citing Sedgwick St. & Const. Constr. (2 cd.) p. 589 note (quoted in Earle v. San Francisco Bd. of Education, 55 Cal. 489, 491; State v. Pond, 93 Mo. 606, 640, 6 S. W. 469. "The term 'local' as applied to stat utes Is of modern origin, and Is used to designate an act which operates only within a single city, county or other particular division or place, and not throughout the entire legislative Jurisdiction. In this sense, the term 'local' Is the antithesis of general . 36 Cyc. 987, note, citing State v. Sayre, 142 Ala. 641, 39 So. 240. See also McGregor v. Baylies, 19 la. 43. The qualifying words "local" and "special" relating to municipal legis lation used In Art. IV, section la, are synonymous terms, and mean enact ments Intended to affect only certain persons or to operate In specified lo calities only. Acme Dairy Co. v. As toria, supra. The principle of local self-government Is regarded as fundamental in American political institutions. It is not an American Invention, but is tra ditional in England, and Is justly re garded at one of the most valuable safeguards against tyranny and op pression. From Dlnckstone and the elementary writers we learn that the civil divisions of England, counties, towns, etc., date back to the times of Alfred the Great. In no changes of policy, dynasty, peace or Internal war or even conquest, have these organiza tions been abandoned. They aro in effect the Bame now as they were be fore the Norman Invasion. Wherever the Anglo-Saxons have gone with their langunge and laws, these communi ties, each with a locnl administration, have gone with them. Here have been the seots of modern civilization, the nurseries of public spirit, and the cen ters of constitutional liberty. They are the oPposltes of those systems that collect all power at a common center. This right of self-government should be carefully guarded, and every Infraction or evasion thereof, con demned. This Important principle finds its Ideal counterpart In the New Eng land town meeting, which Is a legal assembly composed of the qualified voters of a town, and held for the election of all town officers and the discussion of all matters pertaining to the public business, property nnd expenses of the town. Black's Consti tutional ljiw, 3 ed, r.Ci. f,95. In pursuance of this general prin ciple, municipal corporations are es tablished In all the states and Invested with rights and powers of government subordinate to the general authority of the stae. but exclunivj within their sphere. The principle of local government lelng thus firmly Implanted In our political system, It rests with the leK. islatlve authority of each state, which in this state includes the legal voters by means of the Inllletlve. to apply and adjust this principle to the vary ing need, of Its on people. Thatsov erelgu authority must determine what municipal corporations shall he cre ated, and ,-hat shall b, their powers "d the limit of their jurisdiction ac- vmi.uk io the Joy AND QIHKNESS DON'T CHUM TOBEHAPPYKEEPWELL USE ONLY DR. KING'S NEW DISCOVERYbroughti TO CURE 1 COUGHS AND COLDS whooping cough Millions AND ALL DISEASES OF THROAT AND LUNGS pnc. soc .h $i.oo SOLD ANU uueneniuv vi bh i. C. PERKY. rent'.iremonta f ,i. different section, and district, of the Mate, and their capacity nd need of local government. I 8nm, of ,h ,riKl" of - govern,-. gnardcai,yco,,s,t,,tlonnI oyls 7 "" M,"'W-.ir.ton,ake,v "' or swUU U, 'Tualatlnit the rrr : " In others It a considered as of the right. ,.,., , J' " n.tt.lo.ndrfgm.e(lto(h h ,::?,7m'ri,iM'" Uturt u v ",h0rUjr ,0 ,h K- In this state we have a dual system of legislation. By the provisions of our constitutional amendments, the right to enact local, special and mu nicipal measures 1b reserved to the legal voters of their municipalities anu districts. This authority 1b to be ex ercised in the respective localities by means of the initiative process. What ever have been the duties or powers of countieB, prior to the adoption of these amendments, we Bee no reason why such quasi municipalities or dis tricts cannot be endorsed with legis lative functions by the plean provis ions of the constitution. For the origin of the provision for local self-government, by direct legis lation, we must look to Art. IV, sec tion la, of the constitution, wherein the people of this state declare as a fundamental law that "the Initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and dis trict." And a county is clearly a municipal ity or district within the meaning of this section. Acme Dairy Co. v. As toria, Biipra; Cook v. The Port of Portland, supra. The word "district" as used in this section has a broader or. more elastic , signification than "county," and may designate a terri tory comprising more than a county or containing a less area. In defining the power conferred by Art. IX, sec tion la, the framers used the word county which Is more specific than municipality or district, although the former Is Included in the latter. Iirlefly stated, the word county Is, by the constitutional provision contained In Art. IJ, section la, for the purpose therein expressed, practically incor porated Into, and made a part of Art. IV, section 1a. Counsel for defendant make the fur ther contention that Art. IX, Bectlon la, conflicts with Art. IV, section 2H, subdivision 10. This is tantamount to a claim that a constitution cannot be changed. It is apparent from a care ful examination of both of these sec tions that Art. IX, section la, being the later, modifies the provisions or subdivision 10 to a certain extent by providing that "None of the restric tions of the constitution shall apply to measures approved by the people declaring what shall be subject to tax ation or exemption and how it shall be taxed or exempted, whether pro posed by the legislative BBseinblv or by Initiative petition." This would appear to signify that while we think the constitution is still paramount to the statute, there Is now less difference than formerly between a constitutional provision and a stat ute enacted by the people pursuant to 'he lulitutive power. It should also be borne In mind that section ti of A.t IV Is an Inhibition upon the passage of local or special law. by the legis lative assembly. Carrying out the precept, contained In these portion, of our constitution hv Klvlng the,,, th. niPanng c(?ar)y ted by the language used therein and as generally underttaad hv tm8e for whom their provision, were In tended, and pudding ,n a(,cordanfe a - the leK ,Uive Hmp,ment M the enabling art, e conclude that he Initiative Power, or power to pr . Poe and enact law, reserved bv the Wole in Art. IV, ctlo,, 1 wa, f ! IV. section ,, , a dl.tr r n, to all local, specla U municipal legisi,lti011 0f everv ' , ? ,he ,ev,',1 aunties are an-'''''-.lo,,,. r . 'to be d,t, 'VC,!on U- to .,. a miu"'r ubservlent nreV'-tatewhi tUUI Utlll7nff bower pnnf j "mixing the as po tt, . , -rvii tut, "tlcal tn i.-ui . .. Tho '"" 01 the state. ne Proposed measnm i. . . The relief prayed for should be grant ed, nnd the petition filed. It follows that the peremptory writ should Issue and it is so ordered. Mcllrlde, J. (Concurring.) I concur in the general line of reasoning pur sued In the majority opinion, and In the result arrived at thereby. I do not think the propriety or even the constitutionality of tho proposed mea sure Is properly before us. I agree with Justice Burnett in the conclusion that, If the proposed legislation In fringes upon, or In any way hinder, the state in the collection of its rev enues, it is void to that extent. The right of the state to collect in full and in Its own way the revenues necessary for Its support, 1b an attribute of it. sovereignty and canont be taken away by local legislation. But In my view of the case the secretary of state i, not the proper officer to pass upon these questions, and as I understand' his poaltion he does not attempt to do so. HIb duties are purely minis terial, and when a measure, properly and lioneBtly petitioned for any com plying with the law of Procedure, and proof Is presented to him for filing, it Is his duty to file It, leaving to the proper tribunals the question of 1U constitutionality after it shall have been adopted. Suppose a bill should be presented to the legislature and ordered printed In Its regular course. Would anybody seriously contend that the state printer could say: "This bill 1b unconstitu tional, and I, therefore, refuse to print it?" Surely not. I can see no differ ence in the two cases: the duty to file in the one case, and the duty to print lu the other, seem to me to stand upon the same footing. The whole of the proposed bill Is not before us judi cially, and there may be possible doubts suggested as to its Constitu tionality, but these questions, as well as those as to its propriety, should he left the fltst to the courts, and the second to the people In thilr regular course. (Continued.) -n- AU MICHIGAN IN GRIP OF RHEUMATISM Scourges More Widespread Thau Ever Before New ( ore That Is Ite murkubly Effective, Quick and Non-Injurlons. From many sections of the state have come alarming newt of the ex traordinary prevalence of rheumatism, which seema to be greater now than In any previous year. At the tame time comes the newt of many remarkable cures from a rem edy which hat given astonishing re sults, both because of itt quick action as well at of itt harmless nature, and E'.vc !t hAr for the benefit of our readers, after full Investigation ta It" reliability. As an example of the 'astonishing results of this remedy, Mr. J C. Cole, of Flint, Michigan, the well-known tai lor, who wat In bed with muscular rheumatism for almost tlx weeks, and his llmbt were to tore that he could not touch them. He decided on Friday to take "Fuss." The following Monday, three dayt later, he wat at hit store attending to business, and hat been there every day tince. We have col lected details of over 1000 cures of this remarkable remedy. "Fuss, which Is the name of the cure, came Into prominence tome time ago because of Its adoption for the national fig" against rheumatism. It gives Imme diate relief, It guaranteed under the pure food and dmga act of congress, and contains no morphine, chloral, co caine, ether, chloroform or any nar cotic. The pains and ttlffnest In the muscles and Joints limply disappear. It Is equally successful against gout, lumbago and kidney trouble, and It Positive antidote for urle acid. For tale by p. J. Fry, leading dnig 8lt, or tent prepaid on receipt of $1 09 or tlx bottlet for $3.00. Futt Itemed Co.. Flint, Mich. Th pain of neurit!! eetdom fn ylia to Dr. Mil' AntPnln PI"