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::-.:.
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Special Premiums on ail Exhibits of Merit
Reduced Railroad Rates from Ml Points in Eastern Oregon
Mr Ship Flight
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