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About La Grande evening observer. (La Grande, Or.) 1904-1959 | View Entire Issue (June 3, 1910)
PAGE TWELVE LA GRANDE EVENING OBSERVER FRIDAY, JUNE 3 1910 LOCAL OFTI05T DECISION. (Continued from Flrft Section.; flalnt la fatally defective because it Is not shown that the plaintiff was not physician or that the liquor was not sold by him for sacramental pur poses. This point has been decided adversely to the contention of the plaintiff by the Supreme Court of this state, State vs, Carmody, 50 Or., page 1. Further it is urged that the Re corder having simply sentenced the plaintiff to pay a fine of $50.00 and did not provide that he be Imprisoned m default of the payment of the fine had no authority to issue the com mitment Ordinance No. 235, Series of 1898, has been certified to the Court and this ordinance provides that if the Recorder in his judgment entry should omit to direct the Judg tent thereof, the Judgment to pay the fine shall operate to authorize and require the imprisonment of the de fendant until the fine is satisfied at the ratio of one day of imprisonment for each $2.00 of such fine. . In our opinion there was no error tn the proceeding of the Recorder's court so far as the conviction of the plaintiff is concerned. V The record in this case also shows! were being used by the posseaor there of or his or their agent or employees In an unlawful manner and if he shall so find he shall direct the police to destroy the same which direction the police must obey. ' 4 ' ' . ; : It will be 'noticed that nowhere in said ' Ordinance ' does the same pro vide for any notice to the person who owns the premises or the person in possession of the liquors to appear and show cause why his property should not be condemned. It is well settled that where intox icating liquor is kept for unlawful purposes that such keeping is a nuisance ' and .that the liquor; may, upon giving the owner or possessor of the liquor an opportunity to be beard, be destroyed. State vs. Stoffels, 94 N. W. 67, 8othman vs, State, 92 N. W. 303; McManus vs, State, 70 Pac. 700, State va, Adams, 47 N. W. It is equally as well settled that proceedings for the destruction of the liquor is a proceeding In. Rem. and that the liquor cannot be de stroyed without giving the possessor of the- liquor an opportunity to be heard. Western A.1 R. Co. vs. City of Atlantic, 38 S. E. 996, Bush vs, Du buque, 69 Iowa, 23,3. , In the case of Stae vs. Nelson, f 9 N. W.' 1077, the Supreme Court of that upon a proper application there ' for the City Recorder on the th i North Dakota at Page 1078 says day of January, 1910, issued a. search .warrant commanding th rhUf a Pa. lice of the City of La Grande to search the premises of the plaintiff for intoxicating liquors. That under and by virtue of said search warrant "The keeping of the place where fie nrnMhltatt w - - - --- a -- . . . W uWttS M J the defendant is what the statute in hibits in the form of action and the place can be adjudged a nuisance in an equitable action only, when the the said Chief of Police found and ( owner or keeper of It la a party de ,took into his possession certain li-; fendant so that he can defend him- quors presumably the property of the self and property against the charge plalntff herein. That the City Re- and be condemned only after a hear- jcorder at the name .time that he found the plaintiff herein guilty of , maintaining a nuisance also made an order that said liquors be destrored. It Is contended by counsel for the plaintiff that this order was void and that the Recorder's court had no Jur isdiction to make the aame. Section 7 of Ordinance No. 442, Series of 1910, I provides in substance that when a nuisance as defined by the Ordinance ia being maintained that it shall be the duty of the police to abate the same by removing from such place or places where said nuisance is being maintained all intoxicating ' liquors ing or opportunity to be heard." In the case of Regadlng vs. State, 86 N. E. 449 in which the record was very BlmHar to the record now before this court, the defendant was con victed of having la his possession liquor for the purpose of being un lawfully sold and the liquors were ordered destroyed, the " Supreme cojirt held that the order for the de struction of the liquor waa void. That under the law the prosecution of the defendant and the condemnation of the property were seperate and dis tinct proceedings and a conviction of the' crime did not give the court and accurately inventory said liquors ( Jurisdiction to order the destruction and file said lnventpry 'with the Re- of the liquor without a separate hear eorder. Said section further provides ing. ' .. : ; that the Recorder shall thereupon as- So far as the provisions of the Or certain whether or not said liquors dlnance of the City of La Grande are concerned, the plaintiff - herein-- did not know that If he was convicted that the conviction would result in the destruction of the liquor. Under the provisions of this Ordinance the plain tiff might have been acquitted and yet ; the Recorder have ordered the destruction of the liquor. If the Or dinance had provided that upon the conviction of the defendant that all intoxicating liquor taken from his possession should be ordered de stroyed such an Ordinance might have been held valid. State vs. Stoffels, 94 N. W.-676. - - -. - Recognizing as we do that the acts of a legislative body are not to be held invalid by the 'courts unless clearly Invalid and much as we dislike to hold the provisions of this Ordi nate Invalid as far as the destruction of liquors is concerned yet under the authorities we have no alternative. The conviction of the pailntiff will therefore be affirmed but an order will be entered annulling and setting aside the order made by the City Re corder commanding the- destruction of the liquor. J. W. KNOWLES, Circuit Judge. EYE SIGHT SPECIALIST AND MANUFACTURING OPTICIAN . . Office' Over Newiin's Drug .Store '.. . : Lv - THE ONLY v SPECIALIST . ':: IN EASTERN OREGON Who Grinds All His G L A S S E S ANY LENS D U P LI C A T E D .. EXACTLY in a few minutes without Your Prescription ii 1 1 - """7 ' r , 1 V"-' V Located Permanently in La Grande aboutyoureyes : ; 1. 7 1 devote my entire time a ma , king and fitting glasses. 1 1 2. My examinatiion of the eyes i - s thorough and accurate, by methods not forty years out of date, but the la test, scientific methods, known to the science. .;;' -v. "; .f.,::.v-. ' .''.v':--):'r'v . v-V- ' " : ," . , 3. All my glasses are ground to fi t the Eye and the face! " 'p 4. All my glasses are ground, and . frames repaired, in my own workshop in La Grande. .... Vv'': V'-;. :-.;:;.-' 5. ' I duplicate exactly, any lens, n 6 matter who made or prescriled it: 6. I do not miseroresent to you a s some do, and'you are invited to call and see my equipment, which is by far the most complete that has ever been in La Grande. Of course YOU realize the import-1 ance of keeping the oral cavity in the i best possible condition. It's neces sary If you want to prevent a host of alimentary troubles and then there are other considerations such as per sonal appearance etc. , I should be pleased to meet you and give you com petent advice in regard to the care of the mouth and teeth. V"" ' ; i . ; , , , Very truly yours, , -J. E. STEVENSON; D. D.S. If at any time in one year, I can improve . your vision no charge is made for the changing of lenses. If your mountings get broken, I will repair them for ; you without cost. ;- ; ., V - 5. , J::-.:. ! t J"VSL O aid Uiwm CtM Ocf. lU llNi All Jiy ha q Special Premiums on ail Exhibits of Merit Reduced Railroad Rates from Ml Points in Eastern Oregon Mr Ship Flight ' ft u t - 5 I -i 0 ..... 1. i ' . .. '...'V. ' '!'-' '.V.'-t-! . if .... I . v .. .y : . , ... . , .--,. .