THE MORNING- OREGONIA3T, FBIDAT, "JULY'. 18, 1900..
TO TEST THE TARIFF
Portland Exporters Seek to
Recover Manila Duties.
ABOUT $10,000 IN CONTROVERSY
They Hold That the Philippines Are
Part of the Domain of the
United States.
Portland exporters who ha e made ship
ments to the Philippines Islands have
decided to institute proceedings against
the United States Government for the
recovery of duties paid at Manila. Bauer
&. Greene, the Portland attorneys, have
takon up the case In conjunction, with
Ralston & Siddong, of "Washington. D. C.
As soon as the papers are prepared, the
case wiH be filed In the Court of Claims
at Washington, and if the decision Is ad
verse to the claimants, an appeal will
be taken the Supreme Court of the
United States. "The claim of Portland
merchante against the Government
amounts to about $10,000. Harry B, Lewis,
who represented' the Philippine Trading
Association of Portland in the Philip
pines, has sent to Manila for a certified
statement of the amounts paid. "When
this is received the case will be ready
for fifing.
The decision in the Portland case will
settle the contention of whether the
ports of the Philippines are to be held
as foreign ports for tariff purposes un
til Congress recognizes them as domes
tic ports, or whether, as Judge Lochren, of
Minnesota, ruled in the Ortiz case, Porto
Rico, and also the PMlipplnea became,
by their cession by Spain, "a part of the
domain of the United States, and that
the Constitution ox proprlo vlgore (from
itt own force) at once extends over it
(them) and became the supreme law of
the land." Bauer & Greene will cpntend.
In their case against ' the Go ernment,
that when ratifications of the Treaty
of Paris were exchanged between the
American and Spanish Governments, on
April 11, 1699. the Philippine Islands be
came American territory, and that the
Government has no authority to collect
duties on products shipped from part
of the United States to another.
The question of collecting duties on
goods passing between the United 'State?
and the former Spanish possessions. Is
the moot important trade problem be
fore the country. Discussion of it has
defined two points of difference, the first
being that the new possessions are, until
Congress direct otherwise, foreign terri
tory for tariff purposes and the saoond
being that they are not. The mest elab
orate presentation of th" first point was
made by Charles A. Gardiner, a promi
nent New York lawjer. In an address
before the New Tork State Bar Asso
ciation at Albany, when the Treaty of
Paris wan pending In the United States
Senate. Two decisions on the subject
have been rendered In United States
Courts. Judge Toweiaand. of New York,
held that Porto Rico Is foreign territory
for tariff purposes, and Judge Lochren,
of Minnesota, that It Is port of the do
main of the United States. Mr. Gardi
ner's case, which expresses deep solici
tude for the welfare of the sugar and to
bacco trusts, follows:
Definition of the United States.
"In construing the provision of the Con
stitution that 'all duties. Imports and
excises shall be uniform throughout the
United States (article 1. section 8), Chief
Justice Marshall in 1820 defined 'United
States. 'Docs this term, he said, 'desig
nate the whole or any particular portion
of the American Empire? Certainly this
question can admit of but one answer.
It Is the name given to our great Repub
lic, which is composed of states and terri
tories. The District of Columbia, or the
territory West of the Missouri, is not
less within the United States than Mary
land or Pennsylvania. (5 "Wheat. 319.) In
its ultimate analysis It Included ail the
land owned by the Nation In 1820. It in
cludes all the land owned today even
Alaska and Hawaii. It will include every
foot of soil that may be ceded by the
pending treaty. The islands will no longer
be a part of Spain; they will not be in
dependent; they will be ours, ceded, an
nexed, their very soil forming a constit
uent portion of the phj steal area of the
United States. Our National entity Is co
terminous wrch our physical domain, and
will any one assert that our physical do
main is not co-extensive with our Nation
al entity? Judge Marshall's views are
thought to favor free trade. It is as
sumed that the uniform tariff; provisions
of the Constitution wlH become operative
and compel free trade within our borders.
But are not protectionists and free-traders
zealously quoting Marshall and Taney
and Webster and Calhoun, while they
overlook a principle which renders their
dispute purely academic?
Rests With Congress.
"How will tariff regulations become
operative? There Is no provision in the
treaty; hence that document does not
B-PPly. The Constitution and statutes do
not operate ex proprio vlgore; hence they
do not apply. We find ourselves again
relegated to Congress. If it makes oper
ative the Constitution and Dlngley tariff,
they will be operative otherwise not.
If it enacts new tariff laws, those laws
will prevail. If, however. Congress rat
ifies the treaty and does nothing more,
leaving the adjustment of tariffs to the
President as a war power, such course
is equally, within Congressional discre
tion. "These principles have been applied on
several occasions In our history. Louis
iana was ceded in 1803; Orleans Territory
was organized therefrom in If 04; and in
1H2 ft was admitted as the State of Louis
iana. Our tariff imposed a lower duty
by 25 per cent on goods imported In
American than in foreign bottoms. The
Lousiana treats' ga.e a similar reduction
to French and Spanish merchantmen
trading to New Orleans, thus establishing
lower duties there on French and Span
ish imports by 25 per cent than elsewhere
in the Union. For eight years the Terri
tory of Orleans had an essentially differ
ent tariff system from the rest of. the
United States.
"Florida, was ceded to us In 1S19. After
we had taken- possession, it was decided
by the Treasury Department that goods
Imported from Florida, before Congress
had made our laws operative therein,
wore liable to duty. That is, said Chief
Justice Taney, 'although Florida-' had by
cession actually become a part of the
United States; and was in our possession,
yet, under our revenue laws, its ports
must be regarded ae foreign until they
are established as domestic by act of
Congress. (9 How. 617.)
"In 1846 the Mexican state of Tamauli
pas was conquered by us. During our
military and civil rule therein, and prior
to the treaty of peace In 1848. there ar
rived at Philadelphia an American vessel
cleared from Tampico, upon whose cargo
duties were exacted as from a foreign
country. The Supreme Court, sustain
ing the tariff, said: 'There was no act
of Congress establishing a custom-house
at Tampico, nor authorizing the appoint
ment of a Collector. The regulations the
Collector adopted were not? those" pre
scribed by law, but by the President In
the character of Commander-in-Chief. The
permit and coasting manifest granted by
an officer thus appointed, and thue con
trolled by military authority, could not be
recognized In any port ot the Unitd
States, nor could they exempt the cargo
from the payment of duties.' (9 How.
C1G) Commenting generally upon this
and other instances. Chief Justice Taney
made thJs decisive utterance: 'The Treas
ury Department, in no instance that we
are aware of elnce the establishment of
the Government, has ever recognized a
place in. a newly acquired country as a
domestic port, unleew It had been previ
ously mado so by act of Congress. The
principle thus adopted and acted upon by
the executive department of the Govern
ment has been sanctioned by the decis
ions In this Court and the Circuit Courts,
whenever the question came before them.
And all of them maintain that under our
revenue laws every port Is regarded as
a foreign one unless the custom-house
from which the vessel clears is within a
collection district established by act of
Congress, and the officers granting tbo
clearance exercise their functions under
the authority of the lawn ef the United
States.' (9 How. 617.)
"A separate tariff may be provided for
the new territory by the simple means of
continuing the present military govern
ment. Their ports may thus remain
foreign for tariff purposes (B How. 615);
they may levy a tariff on Imports from us.
and their goods continue to be subject to
our import duties As'the Supreme Court
specifically decided relative to the pro
visional governments -of the South, such
.governments can 'prescribe the revenues
to be paid and apply them to their own
use or otherwise. (20WalL 390.) And
these governments, as we have sepn., may
continue Indefinitely, and be terminated
only In Congressional discretion. (16
How. 164.)
Constitution Does Not Apply
"Nw territory, therefore, may be ac
quired "without becoming subject, to the
tariff provisions -of our Constitution and
laws. Sugar from Cuba,and Hawaii, to
bacco from Cuba and Porto Rico, and the
products of the Philippines and Ladrooes
will not be admitted.-' duty -free, unless"
Congress so determines. Hence the vast
suma Invested in our sugar and tobacco
industries need not be Imperilled, nor
need colonial 'imports reduce our customs
revenue or disturb our economic status.
"The commerce of our territories with
foreign states involves the inter
national trade problem of the 'open door
The President's recent proclamation to
ihe.Fiyplnos has been misunderstood. 'Afl
ports.' he saj 'will be opened to tha
commerce of all friendly4 nations. All
goods . ... -will be admitted upon
payment of such duties and ether charges
as shall be in force at the time of im
portation."' If" no duties arein force, none
win be exacted. If Dlngley tariff duties
or any other exjst, they must be paid'
This Is no 'open door,' nor even freo
trade. It Is, moreover, only a military
order, and may at any time be rescinded
by the President But when Congress
makes 'rules and regulations' for the new
territory, what then? If It should ex
tend our Constitution and laws over
the islands, free trade would then, as
now, prevail within all our borders, and
thfeoretic&lly the Dlngley tariff between
us and the rest of 'the world. The uni
form tarift clause of the Constitution J
being operative. Congress would have no
more authority to admit English oods
free at Manila, han at New Tork or
Philadelphia. 1 must not' be forgotten,
h&Wever, Mhat such ' action, while con
dusivs within our boundaries, is- noS
final In our International relations. The
President and -Senate have, under the
Constitution, unlimited power to make
trade treaties. If we are not prepared
to adopt free trade In Its entirety, we must
continue in the future, as in the past, to
regulate our open doors by treaty .and not
by statute. As matter of fact there has
been no uniformity -of tariff with foreign
nations-since' our Government began. The
'favored nation clause has not prevented
trade treaties, for nations have uniformly
ignored the clause in their trade wars.
A trade "rar now exists betsceen the
United States and every European nation
in the Orient except England. If Eng
land permits us to trade In China and
India, the treaty-making power of our
Government can permit England to trade
in the PJrilippines; if other European pow
ers exclude uo from their Asiatic ports,
our treaty-making w"wr- bv rfni.
i discriminating tariffs, can practically ex-
laoue mem irom tne PMHppInes. There
Is no Constitutional objection to giving
Spain the preferential duties provided In
article Iv of the pending treaty; and; If
policy dictates, the President and Senate
can extend similar discriminations to our
trade allies and refuse them to nations
waging a tariff war against us;
Part of the Public Domain.
In the Ortex habeas -orpus case, de
cided in the" Unlfed States Circuit Court
.inne.TOa May 5 Jude Lochren held:
The Government of the United States
can exercise no powers except those del
egated to It, either .expressly or by
necessary Implication, by the Constitu
tion: hence the civil Jurisdiction of the
United States .can .only be AxerrtM -orig
in territory over which the Constitution
is In force and within the limitations Im
posed by that instrument for the protec
tion of personal and property rights.
"Upon the cession by Spain to the Unit
ed States of the Island of Porto Rico,
th,at Island .became a port of the domain
of the United States, and the. Constitu
tion ex proprio viroge at once extended
over It, and became the supreme law of
the land. Including the provision giving
the right of Jury trial in criminal prose-
cuuons.
"As affecting private right, a treaty be
tween two nations becomes effective only
from the date when the ratifications of
the respective governments are ex
changed." In the Ortez case the contention on the
part of the United States was that by
the cession, Porto Rico did not become
an integral part of the United States,
nor subject to the Constitution, but mere
ly an outlying province or dependency, to
be ruled by the absolute will of Con
gress, untrammeled by any provision of
the Constitution. Passing upon this Is
sue, Judge Lochren said:
"The arguments are ingenious, but. In
view of the history of the country and
the" terms of the Constitution, and the
very numerous decisions of the Supreme
Court, all to the contrary. I do not find
them persuasive. "Our general Govern
ment was founded by the men of the
Revolution, who had rebelled against the
arbitrary power asserted by Great Brit
ain togovern her outlying colonies, at the
will of her Parliament. Ther established
this Government upon tne asserted theory
mat au just powers of government come
from the consent of the governed. They
founded, as described, by President Lin
coln, In language not yet forgotten, a
'government of the people, by the people,
ror the people.' It will be. Indeed, mar
velous. If It Is "made to appear that these
men who then founded our National Gov
ernment so constructed It that it Is cap
able of ruling with unlimited power a
subject people, who have neither guar
antees to protect them nor any voice in
the Government. This is foreign abso
lutismthe worst form of tyranny. If
the Constitution does not extend to Porto
Rico, and our other new acquisitions of
territory, but Congress has the untram
meled, absolute -power to establish subject
governments, art make IawB for such
territories, it has the power to establish
dependent monarchies or satrapies, state
religions, and' even Blavery."
Porto Rico n Forelim Territory.
Opposed to Judge Lochren's decision is
that of Judge Townsend. In Goetse vs. the
United States, tried in the United States
Circuit Court, In New York City. This
case, unlike the one that came before
Judge Lochren, presented the question of
the position of Porto Rico to the Consti
tution directly for adjudication. Goetre
Imported from the island tobacco, ' upon
which duty- was assessed as from a for
eign country. The Importer protested,
holding that Porto Rico was not a for
eign country, and therefore the Imposition
of duties on goods brought thence into
the United States was unlawful. The
court held that Porto Rico is still a for
eign country In the" sense of the tariff
law, so. that duties are lawfully assessed
on articles Imported therefrom. Judge
Townsend held also that the treaty of
Paris "vests the sovereignty over the
Island in the United States, "but postpones
changes In the relations of its people to
the body politic 'until Congress shall de
termine what relations shall be best suit
ed to the conditions of .the inhabitants
and to the- welfare of the United States."
Congress not having, acted, the atatusf
Porto Rico as a foreign country, except
as to other foreign countries, remains un-changed.
PARK FULL OF aMPERS!"SS?a5M!?!iS5S5
'
IKCREASDTG INTEREST IX THE i
GLADSTONE ASSEMBLY.
Mere People to Hear Landts' Lector
oa Grant The Greater Lights ot
Oregon Literature.
GLADSTONE PARK. Or.. July 12. This
has been a very gratifying second day J
at tK WIllf-nf Vlv ("Vinufnitrnin A
at the "Willamette Valley Chautauqua As-
sembly. and the management is Jubilant J
over tne promisea success nnanciauy ana ,
secretary Gray s comparison 1
of the receipts for the first day of last
year with the total taken in yesterday
shows a decrease of only 10 per cent. Orio
year ago Sam Jones drew an Immense J
crowd on the first day, and the weather
conditions were more favorable for camp
ers. It is believed that the gate receipts
today will make a still better showing ball between the Chernawas and Colum
whea the account Is made up. The Park bias, of Portland. The score was 14 to i
appears to be full of cumpers, and more
are coming. Tomorrow the tents will be
numbered and the actual count made. Tn
the way of entertainment, too, the day
has fully met expectations. In trie fore
noon Professor J. B. Horner, of the Ore
gon Agricultural College, gave a lecture
on the "Greater Lights of Oergon Litera-
ture," and in the afternoon Congressman
Charles B. Land! lectured on "Grant."
There was a hotly-contested game of
baseball. In wTilch the Chemawas beat
the Columbian, of Portland, and tonight
Dr. Thomas McClary gave his lecture on
the "Mission of Mirth."
Professor J. B. Horner's lecture was
historical 'and analytical. He gave a.
sketch of the literary lights from early
times, relating many interesting Incidents
and 'analyzing and comparing their pro
ductions with the work of famous liter
ary people In the East. He said:
"We have read editorials, and listened
to sermons, lectures and orations pre
pared in Oregon that would do honor t6
Boston. "We boast of a large cluster of
speakers and writers, many of whom can- t
not be mentioned in this paper, that would
shale with a radiance of the first magni
tude. "The lives of people reared In Oregon
have, as a rule, been Influenced more
by the things said and written by Ore
gonlans than by any literature from
abroad. 'There is the touch of home
about it'; and it teaches us as no other
literature can. It came from those we
love, and It reaches out direct to the J
hearts and conduct of the people: for It
Is the outgrowth of what a good and
great people have lived. If these things
which are daily accumulating have so
Influenced Oregon life In the past. It Is
the'religious duty of the living to gather
the words of wisdom spoken by our best
workers, that they may 6e repeated in
the days to come, thus giving strength
and nourishment to the boys and the
girls who are to be the Oregonians of 1
tho future and who ought to be a greater
people than the world Has yet produced.
"It Is natural. It is right, that we should
speak the praises of our honored and
magnificent state. Oregon has no supe
rior: her star of glory ever shines with
undlmmed and Increasing splendor. Her
skies will never fade; her mountains will
never lose their grandeur and glory; her
valleys will ever be filled with the sweet
est and most hallowed homes; her noble
rivers will always welcome upon their
bosoms the ships and navies of the
world: her unbounded forests will ever
be filled with the sweetest and most hal
lowed homes; her noble rivers will always
welcome upon their bosoms the ships and
navies of the world; her unbounded for
ests will ever Invite the woodman's ax
and the manufacturer's mill; her wealth
of water and her richness of mines, and
her harbors of the sea will court tho com
merce of nations; her soil and her fruit
and flowers will never cease to tempt
tho eye of man. Tes. of these and more
can we proudly boast, but far above and
beyond all these and more Inspiring ob
jects, there rises In sublime and monu
mental majesty the subllmer characters
of theflmmortals In our glorious history
the lives of the noble men and women
who will forever shine In unfading luster
as the years, with ceaseless march, shall
near eternity's shores.
"As from ypn mountain range there
rises the towering temples all pure and
white, dressed In the very robes of heav
en, so there rises from the high mountain
range of Oregon's" literary landscape the
lofty and shinning pinnacles on whose
srleamlnir summits are written the lmoer-
Ishable names 'of Joaquin Miller. Edwin
Markham. Mrs. Ella Rhodes Hlgginson,
George H. "Williams. Colonel E. D. Baker
and Sam L. Simpson."
In the afternoon the musical programme
preceding Congressman Charles B. Lan
d's' lecture on "Grant" consisted of vio
lin solos by Miss Lucille Collette, and
soprano solot by MIsi Jean Miller, both
of PprtJand. Mr. Landls was greeted with
a larger audience than was present last
night, many arriving from Portland dur
ing the day. He bepan by paying a neat
compliment to Gladstone Park, stating
that he had never seen a more beautiful
location for a Chautauqua assembly. The
environment Itself was enough to Inspire
Inspiration. The speaker spoke of Ulysses
S. Grant, as the farmer, tanner, soldier
and statesman. Grant and Lincoln 'alike
believed In the soldier and God. One of
Grant's prime qualities was his level
headednesi; he was always cool and de-.
liberate. Once, when a General "on his
staff rushed breathless into the command
er's presence, and reported that they were
surroundM by the enemy and there was
no apparent way out of the dilemma.
General Grant cooly reolled: "We have
cut our way In here, and we can cut our
wnv out." And he did.
Prevlouw to the batt'e at Fort Donel
pn. the North was disheartened snd felt
that Its cause was almost lost. General
Grant, however, was equal to the occa
plon. At night h gave the command
that. "We must fire the first hot" It
was done, and Grant won asnln. Grwnt
used bis armies as a great club, and lit
erally drove his way to success.
The speaker contrasted Grant as a sol
dier and a man. It was unconditional
surrender with him as a Foldier when
dealing with the enemy, but when they
iana rood. This trait of Character nas
been followed by our Government In the
J treatment of the enemy during the late
Bpanlsh war, and the traits will make
our armies always success tm in war.
General Grant's character bore Its im
press on the details of the late trouble
with Spain.
As to who deserved the greatest honor,
Sampson or Schley, in the .Cuban war.
the lecturer said it was Captain Jack
Philip, of the battle-snip Texas. He had
personally Interviewed Captain Jack
Philip as to the truth of the report that
he had engaged In prayer with his men
after the victory. Captain Jack Philip
appeared embarrassed.
1 .-. i -t - In
and
hesitatingly. The sojdier-conimander said
that he had been raised Christian by
repnea j
religious parents, and called attention to
-th fnrt thn It cm nt Ms hat. and It
- was recovered by another person, the
first party would say. "Much obliged."
So when we passed through the battle
-without losing a man or receiving any
damage to the vessel. ,lt was but natural
that I should say much" obliged to God."
There was an interesting game of base-
ln favor of the former.
Dr. Thomas McClary, delighted a large
audience tonight in the Auditorium with
his lecture, "Mission of Mirth." He is
down for a lecture on "Ireland" tomor
row afternoon and Saturday morning.
Saturday afternoon there- will be a spe
cial field meet on the athletic field.
.Following Is the complete programme
for tomorrow.
8 to 11 Schools arid classes.
11 Albany College morning. Lecture,
President "W. H. Lee.
1:30 Orchestra. Solo, Mies C Barker.
Solo, Miss Romona Rollins. Lecture,
"Ireland," Dr. Thomas McClary, of Min
neapolis. 3:30 Baseball, Oregon City vs. Colum
bia. &-Round Table "Lost Night," by Ore
gon City Ladles' Quartet. Lecture, "Our
Birds," "W. L. Finley, Portland. Solo,
Miss Imo Hording.
7:30 Orchestral concert.
8.00 Soprano solo, Miss Jennie finyder,
of McMinnvllIe. Contralto solo. Miss
Hurley. Chalk talk "Hlght Art "With
Homely Hints," Alton Packard, of Chi
cago. TO PIECE OUT A CARGO.
Lumber Shipments to Cape Nome Via
San Francisco.
Street rumors to the effect that lumber
was being shipped from Portland to Cape
Nome by way of San Francisco, for the
reason that this was too expensive a
shipping port, have gained some currency
of late. In spite of the? fact that there has
been nothing on which to base them.
They probably had ther origin in the
fact that several weeks ago the North
west Door Company, a Portland concern,
shipped a number of carloads' of lumber to
San Francisco, for a steamer bound for
Nome. The lumber was purchased to
make up a cargo of lumber, sash, doors,
hay and other commodities, which a San
Francisco firm had arranged to ship.
They at first intended to buy the hay
here, as well as the lumber, but, learn
ing that hay was cheaper In San Fran
cisco than In Portland, and having their
steamer already at that point, they de
cided to ship the lumber from here, rather
than send the steamer to .Portland with
half a cargo. This change of plans cost
the Portland firm a large order for sash
and doors, which were purchased In San
Francisco, the lumber being, all that was
purchased here.
It was the necessity of completing a
cargo as speedily as possible, and not be
cause Portland Is an expensive port, that
made necessary the roundabout route of
the lumber.
The rail rate on lumber from Portland
to San Francisco Is very low, $3 10 a ton,
this price having been fixed by the
Southern Pacific in order to afford a mar
ket for the timber growing on the lands
they have for sale. For a time during
the late war, when the Impressment of
all available ships into the Government
transport service deprived the railroad
of colliers, and forced them to bring cool
from Ogden Instead of Puget Bound,
At Gladstone Park Strictly Platonic
many cars were required to haul coal,
and, having none to spare, they put up
the rate to a prohibitory figure. A year
ago tho old rate was restored, and the
markets of San Francisco, Oakland, Yal
lejo, and other California towns are now
open to the mills of Portland and the
"Willamette Valley. "While even so low
a rate as this will not encourage Port
land merchants to ship lumber to Cape
"Nome by way of San Francisco, it great
ly extends the market for Oregon lumber,
and tends to encourage the establishment
of mills and the development of the vast
timber resources of the state.
EXCURSION TO BONNEVILLE
Take O. R. & N. special train from
Union Depot. Sunday, at 9:20 A. M., for
Bonneville picnic grounds. Special at
traction: Adgie and her lions; vaudeville
performance; specialties. Refreshments
to be had on the grounds. Fare, SO cents,
round trip.
BASEBALL GAME AT GLADSTONE PARK.
jJH7 I rjvp
IN THE SEVERAL- COURTS
S CUMBER'S CLAIM TO HOLBROOKES
SEAT IN THE COUNCIL.
Petition. for a Recesat Develops an
Unexpected Phase Which Mar
Stop Appeal.
F. B. Holbrook, whose right to the po-
111.. S ljuilllM.MM W.W VA TlwH
mrd bemS contested. by William
V? innnZXvto consent
Sfhmv lyJV SSTffi
to a recount of the votes, or else lose his
seat. The plan of his attorneys, Paxton.
Beach & Simon, to appeal to the Supreme
Court from the decision of Judge Fraser
as to the question of Jurisdiction appears
to have been knodked in the head, but
'the matter -will be further argued on
Monday.
The statute as to contests, provides,
section 2544: "Any person wishing to con
test the election of any person to any
county, district, township or precinct of
fice, may givo notice in writing to the
person whose election he Intends, to con
test that his election wilFbe contested,
stating the cause of such contest briefly,
within 30 daya from the time sold person
shall claim to have been elected."
8ectlon 3545 provides that the Circuit
Court may hear and determine the con
test, and section 2$46 states that the Coun
ty 'Judge shall hear and determine con
tests In the case of township or precinct
offices.
The dry charter provides, "A certificate
of election Is primary evidence of the
facts therein stated, but the Council 'is
the Judge of the qualifications and elec
tionbf the Mayor and its own members;
and in the case of a contest between two
persons claiming to be elected thereto,
must determine the same, subject, how
ever, to the review of any 'court of com
petent Jurisdiction."
A contested election for any office, oth
er than that of Mayor and Councilman,
must be determined according to the
state law regulating proceedings in con
tested elections In county offices.
Counsel for Holbrook demurred to the
complaint, contending that under these
laws Judge Frazer has not Jurisdiction
to recount the ballots. It was argued by
Mr. Beach that the charter does not con
fer 'the authority upon the court, apd
that the state law cannot be so construed
except by Implication, and that, as a
matter of law there can be no implica
tion where a statute Is 'relied upon.
'Judge Fraser passed upon this same
point two years ago, when he allowed the
recount of the votes In the case of Con
don vs. Meyer for the office of Council
man1 His Honor adhered to his former
decision, holding that the Legislature in
tended in this section to include all mi
nor or subsidiary offices of whatever na
ture. Mr. Beach Insisted that this could not
bo under a. law which, he asserted, was
a special statute, conferring certain spe
cific powers. The court overruled the de
murrer and granted "counsel for Holbrook
time to answer the complaint, but Mr.
Beach said he would probably stand on
the demurrer and appeal from Judge Fra
ser's decision on It to tho Supreme Court.
As the Supreme Court is about two years
behind with its work because of press of
business, Holbrook might serve out his
term of office before a- decision would be
reached on the appeal.
Yesterday, with this in mind, Henry E.
McGinn, attorney for Schnyser, Informed
Mr. Beach that he had looked the matter
up a little, and asked Mr. Beach if he
was aware that if he allowed Judgment
to be taken upon tho demurrer that the
complaint which sets up that Schmeer Is
entitled to and was duly elected to the
office would stand as having been admit
ted or determined, and that there would
be nothing left for the court to do but
to issue a certificate of election to
Schmeer; also, that Judge Frazer has
held that a certificate by the court would
give the contestant the office. Mr. Mc
Ginn's client would, therefore, fill the
office of Councilman pending the decision
of the Supreme Court on the Jurisdiction
question, and Mr. Holbrook, instead of
Mr. Schmeer, would be on the outside pa
tiently waiting to get in again.
The election law provides: "And the
County Clerk shall Issue a certificate to
the person declared to be duly elected by
Bald court, which shall be conclusive evi
dence of the right of said person to hold
said office."
This is what Mr. McGinn thinks must
happen when Judgment on the demurrer
is taken.
But Mr. Beach said he did not see it,
that way, and that a stay bond can be
filed, which will keep Schmeer out and
Holbrook in until the Supreme Court
should pass upon the question of Jurisdic
tion. The law states "that the Judgment or
decision of the Circuit Court may be re
moved to the Supreme Court In such
manner as is- provided for removing
causes from the Circuit Court to the Su
preme Court, and the party removirfg any
such Judgment or ' decision by appeal
4hall file a bond in the. proper court to
the opposite party in such sum, and with
such sureties as shall be prescribed by
ther Judge thereof, conditioned for the.
payment of all costs that may be proper
ly taxed against him."
Mr. Beach said he would take time to
consider the question, and his partner,
tMr. Paxton, had a few minutes' talk with
Judge Frazer, and the present under
standing appears to be that the matter
Will be disposed of on Monday.
Mr. McGinn states that he does not
want a certificate of election In that way,
as it 'is a cnlrife- the public is Interested
in, and hj wants the votes recounted, so
that it riay be ascertained whether the
lost count was fair. The difference in
the vote between the two. men is 40.
Mr. McGinn, however, does not say ho
will decline a certificate of election for
Schmeer If It Is granted to him on the
Judgment on the demurrer, or that, he
will iorego any advantage that Is com
ing to him.
On the other hand, the attorneys for
Holbrook will not surrender the office in
this manner, but will Instead abandon the
appeal It thiy have to and file an. answer
in the complaint and consent to the re
count of the ballots.
Ver&Ict for Defendant Once Jtfore.
Tho Jury In the case of Olsen vs. the
Northern Pacific Lumber Company, In the
United States Court, after being, out
several hours, returned a verdict at 5
P. M. yesterday it favor of defendant.
Olsen. who Is a Swede, was employed in
the sawmill of defendant some four or
six years ago, and met with an accident
there. He brought suit fn the State Cir
cuit Court to recover 120,000 damages. The
Jury returned a verdict in favor of de
fendant. O.lsen then brbught his suit in
the United States Court, which, owing
to his being a foreigner, he was enabled
to do, and again the Jury returned a
verdict for the defendant. Then Olsen.
took an appeal to the United States Court
of Appeals, and the case was remanded
back to the United States Court here for
a new trial. This trial has been occupy
ing the time -of the Court since July 5.
and the Jury has again decided In favor
of the defendant As the United States
Government, in Its desire to see- Justice
done, pays the costs or a large part of
them In cases where the plaintiff Is im
pecunious, Olsen Is not out much through
his protracted litigation. "Whether he can
carry the case any further or not re
mains to be seen, but It would seem that
he should be able to gex a decision of
the Supreme Court of the United States
in his case, and that might settle It, even
If it did not satisfy him.
"Will Sue for Damages.
Both charges preferred against C A.
Mitchell in the Municipal Court by the
management of the "Washington Life In
surance Company, were dismissed yes
terday. Mitchell was accused of larcpp-'
by bailee and larceny by embezzlement.,
the-Mifflculty growing out of funds ad
vanced to him when he commenced to
work for tho company, and arrangements
mado for traveling. But the discharge
in the Municipal Court apparently Is not
to settle the matter. Henry St. Rayner,
attorney for Mitchell, stated yesterday
that a civil action 'for $10,000 damages
would be begun immediately. Papers for
this were being prepared yesterday, and
the attorney said the action would be
commenced as soon as necessary ar
rangements could be completed.
Divorce Cases.
Grace Lawson was granted a divorce
from Charles Lawson yesterday by Judge
Sears. The plaintiff testified that her hus
hand deserted her three days before their
yu'u niu uviu uuu iiuiai IU BUIJULI. HIT
nhlle they lived together. They were
married in Portland in 1S9S..
Gertrude Hollister has sued Frank Hol
lister for a divorce, charging In her com
plaint "that he deserted, her on June 2L
1639, five days aftor their marriage, at
"Vancouver, "Wash. She asks permission
to resume her maiden name Howard.
Probate Court.
Caroline Rosenthal was appointed ad
ministratrix of the estate ot her husband,
"Wolf Rosenthal, deceased, valued at
about $3500. The heirs, at law are the
widow and eight children.
J. G. McElroy, administrator of the .es
tate of Henry' J. Thompson, deceased,
was authorized to pay J. B. Coffey, guard
ian of the five minor children, $530 for
their support, etc.
GOOD ROADS CONVENTION.
"Why Not Hold It in Connection "With
Street Fnirt
L. L. Hawkins, Dr. A. E. Rockey and
H. H. Northup, the committee appointed
by the Chamber of Commerce to answer
the communication from Dr. W. H.
Moore, of St. Louis, suggesting that a
good roads convention be held in Port
land this Fall, have sent the following
reply:
"Portland. Or., July 12.-air. "W. H.
Moore, St. Louis, Mo. Dear Sir: Your
letter of June 25 to the Chamber of Com
merce of Portland has been referred to
the undersigned committee. The ques
tion of good roads has received much at
tention In our city through special work
done at local fairs and through tho work
of the Rood Club, with whom we think
you have had communication In the past.
Every one realizes the Importance of
good roads, but the bare discussion of
these questions Is such a dry subject that
unless attached to some other attraction
it Is liable, according' to our past ex
perience, to draw only a small crowd.
- "From September 4 to 15 a street car
nival Is to be held here, which this letter
head explains. A number of blocks along
the principal streets of the city have been
set apart by the city for this purpose,
and present indications are that It will
be a very great success. This will at
tract to our city a large number of visit
ors from this and other cities, and wo
have secured the consent of the commit
tee to have a "good roads" day, pro
vided we will offer sufficient attractions
to make It interesting. This, we im
agine, might be along such lines as you
suggest In your letter automobile races,
street exhibits of wagons, carriages and
wheeled vehicles, etc What we now
desire is further Information pertaining
to subjects of this kindv So far as speak
ers are concerned, we can supply excel
lent talent here, without going to the
expense of bringing here the eminent
gentlemen whom you mention. Any fur
ther information that you may have bear
ing upon this question you may kindly
communicate to the chairman of this
committee.
"This Information should also include
any estimate of expenses outside of local
advertising, which we will take care of,
and what part you and your associates
will take in the management of such a
convention. Yours very truly.
"L. L. HAWKINS.
"A- E. ROCKET.
"H; H. NORTHUP."
NO REGISTER ON EARTH.
Elder in the "Church o$ God" Un
able to Tell the Membership,
A clerical-looking man was at the bag
gage-room of the Grand Central Station j
yesterday afternoon, arranging to have
his tent and bicycle forwarded as bag
gage to his homo In San Diego, Cal- He
had been holding revival meetings in
Whitman County, Washington, where he
found bicycle and tent .ery serviceable
In drawing a crowd together, and housing
the congregation from the weather while
he proceeded to exhort- them to . desert
their sinful ways and identify them
selves with his denomination, which he
styled the Church of God.
Elder J. W. Byers, for that was his
name, said the Church of God has no
organization: in fact, is opposed to all
organization, as wickedness always creeps
into every human function. The preacher
who sorres organized congregations for a
salary, he said, does not tell his members
of their faults, as to do so would "be to
forfeit his bread and butter. "I am trav
eling through the world, as the disciples
did, and demand no salary, therefore I
can point out the misdeeds of my flock
without fear of losing support. I never
ask any one for a cent, and yet niy wife
and three children in San Diego are well
cared for. The Lord provides for their
keeping", and I am not uneasy."
"What Is the. membership of your
church?"
"We never know; ' our crass book is
In 'heaven; it is one of God's secrets."
The headquarters of the Church of
God, he said, are at Moundsvllle, W.
va. The denomination has been in ex-.
istence 25 years, and there are several
members In Portland, who hold meetings
at 420 East Grant street. Elder Byers
left for California last eveiung.
A highly
prized cigar the Herbert
I Spencer.
MANY STAR ATTRACTIONS
WHAT JOHN P. CORDRAY SECURED!
FOR THE FAIR.
Result of His Trip to the East In th
Interest of the Portland
Carnival.
John F. Cordray, who went to St. FauLl
Chicago and other Eastern cities to se-l
cure attractions for the Portland Street!
Fair and Carnival, returned yesterday -afternoon,
and met with the executive com
mittee last night, arousing their enthus
iasm to the highest pitch by his report
of the success of the fairs he visited. Mr.
Cordray secured for the Portland carni
val the very best of the amusement fea
tures that added so much to the success
of the festivities In he Eastern cities.
Nothing was overlcotced. Everything he
saw that was new or entertaining, novel
original or calculated to please the
thousands of visitors who will come to
Portland in September, he booked for
Portland. And he did not stop there. His
knowledge of the theatrical business en
abled him to find many adltlonal attrac
tions showing In roof gardens and other
places of amusement, and he selected
irom tnese what in his Juagment will take
with the patrons of the Portland fair.
as a result, the success of the "Midway1
ena or me Portland fair is assured. It
will be brim full of entertainment of a
character never seen m Portland before,
and. on a scale not to be rivaled by any
larr in tne country.
Aiinougn trie ralrs or St. Paul and
Chicago were brilliant successes, Mr,
Cordray Is confident that the one to be
given in Portland wjll surpass both ot
them. In St. Paul the hotels were over
flowing with people, many of whom came
hundreds of miles, from Canada. Towa.
Illinois, Wisconsin the Dakotas and all
the country round. Merchants were rush
ed to death with business, the retail
stores being crowded all the time, and
wholesalers finding a fine onnortunitv ta
show their goods, tastefully arranged in
tne booths of the fair, to the many coun
try merchants who came to the city. Tha
street cars were crowded night and day,
being literally loaded with people, and
the railroads leading into the city ran
dozens of excursion trains a week to
bring In the people who were thronglnfl
St. Paul.
The same state of affairs prevailed 1a
Chicago, and everywhere people said that
the streets fairs were the greatest en
tertainers that ever happened.
The committeo learned that the mer
chants' auxiliary Is meeting with unex
pected success In the securmf? of exhibits.
One single firm wants GO feet of sp'ace.
ana intends to spend a largo sum of
money In erecting booths to display its
wares, others are coming In by the score.
and if they keep on at this rata it will
be necessary to enlarge the district tha
committee expected to cover with bulld-
'H3 m orucr 10 accommodate every-1
one.
on motion, Mr. Cordray was mado
chairman of a committee to select the
queen of the carnival. He will choose his
own assistants. The queen will be voted
ror, and the friends and admirers of all
the beautiful and lovely youn-c women
of Portland will have an opportunity ic
secure for one of them the honor of reign
ing oyer the festivities of the great car-
nival.
LESS THAN A CENT A YARD
iiov-r Cost at Which the Portland!
Dredse Is Working-.
A brief session of the Board of Commis
sioners of the Port of Portland was held
yesterday, Vice-President Williams ore
i siaing, -ana Jiessrs jBuandcrs, "McSachern
tiugnes ana tun present.
The question of the advisability of plac
ing some nre insurance on tho dredga
Portland was discussed. Hughes favored
setting aside the money which would
have to be paid for premiums as- a fund
for meeting losses. Williams said every
steamboat on the river carried some flra
insurance. it was nnauy ordered, or
motion of Flanders, that the executive
committee take Insurance against loss by
nre not to exceed $10,000. provided tha
premium Was not over VA per cent.
The matter of amending the by-laws
was again laid over. The usual monthly"!
and quarterly reports were presented.
read and approved. The report of the'j
treasurer was referred to the auditing I
committee.
The monthly roport was particularly In
teresting, as It shows that the cost of.1
dredging has been reduced to Jess thanJJ
1 cent per cubic yard.
During the .month of June the dredga i
was laid up for repairs until the lotn.
She commenced working on the 11th. By
Juno CO she had excavated 222,3)2 cub'91
yards, in 363 actual working hours, out ot
a possible 426 working hours. The ex
penditures connected with the dredge foe
tho month amounted to $3037, or an aver
age of 1 365 cents per cubic yard. If tha
expenses for extraordinary repairs, tho
proportionate share of the pay-roll and
subsistence account be deducted, a fair
estimate of the actual cost of this work
would be $2063 23, or about .93 of 1 cent
per cubic yard. The amount excavated
Is based on the soundings furnished by
the United States Engineer's survey ot
December. 1699, and the depth of water
in the channel cut. To obtain 25 feet
it has been necesrary to cut fully to 2a
feet, and consequently the dredge has
actually done considerably more worls
than the report shows.
DAILY CITY STATISTICS.
Renl Estate Transfers.
G. W. Kenny and wife to Gresham
Cheese Manufacturing Company,
tract ot land on Johnson Creek,
tuntlnrt 10. tovrnshln 1 south, ranse
3 east. February 11. 1S29 $ ISO
George A. Brown and wifa to Annie
TCniRnn. lots G. 8. block 16. Multno
mah. May 24 , LOW
J. O. Moreland ana wire to Liizzie
T T.irtlft hlnoTf 3 Mount Tabor
Central Park, July 9 8.250
Bulldlns Permit.
A. N. King, three-story brick store, cor
ner Firtn ana BtarK, -co.uw
Marrlnffe Licenses.
August Koppe. aged 58, Pauline Hart
ung. aced 54: A. A. Kuhn. -10; Chehalls
County, Wash.. Ida S. Howes, 31; Benja
min Robert Patterson, Wasco County,
Adeline Ar Bean, 25.
Deaths.
July 10. John Kenny, age. 64" years, St
Vincent's hospital: chronic nephritis.
July 11, Ah Louie Hoo, age 6 years. 195
Second street: plumonary tuberculosis.
July 10. Wiirfield B. Chase, age S2 yeara,
Salem, Oregon: apoplexy.
' July 11, Mary P. Madden, age 65 years,
171 East Fourteenth street; valvular di
sease of heart.
Contnrclous Diseases.
Louis Rosenberg, age 7 years, 392 Wate
street: scarlet fever. ,
Earl Charter, age 4 years, 607 Mllwau
kie streets: typhoid fever.
THROUGH THE ROCKIES.
Every European tourist who visits this
country and travels over the Rio Grands
western Railway wonders why Ameri
cans will go to Europe for scenery, be
cause .there Is nothing on the European
continent to compare with the mountain
scenery of Colorado. The Rio Grande
Western, with its direct connections. Is
the .only line which gives the transconti
nental passenger a trip through the heart
of the Rockies Going further East, tha
passenger has the choice of four roads
beyond Colorado via either Omaha or
Kansas City. Stop-overs are permitted
anywhere 'between Ogden and Denver,
affording a day In Salt Lake City. Glen
wood Springs, Colorado Springs or Den
ver. For rates and Illustrative pamphlets,
ndrirui J.. T fnncflAli" nrsl uronf 55S
"W.atfhlnston street, Portland. Or.