Morning Oregonian. (Portland, Or.) 1861-1937, December 20, 1907, Image 1

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    VOL. XLVI.- NO. 14,675.
Decision in Test Case
Is Announced.
All Measures Voted at June
Election Get Body Blow.
Holds That Council Exceeded Au
thority in Submitting Measures
to Electors People Only Em
powered to Initiate Change.
Following Is the vota at the city
election of June 3 on the measures
that are affected by the forthcoming
decision of Circuit Judge Cleland:
Issue of $3,000,000 water bonds and
assessing property for water 1
Yes 7,247:No T.116
Majority for. 181.
Issue of $1,000,000 park and boule
vard bonds
Yes 8,143!No 6.143
Majority for. 2000.
Issue of $300,000 of dock bonds
Tes tU14No 4.847
Majority for. 4967.
Issue of $ir.O.0OO of Madison-street
bridge bonds
Tes ll.S72Ko 2.56S
Majority for, 0304.
Issue of $275,000 general bonds for
fireboat and water mains
Tes S,0."S!No 4.988
Majority for, 3967.
Improvement of streets by districts
Yes 9.21UNo. : 8.902
. Majority for. 8317.
Remonstrance of four-fifths to de
feat street Improvement
Tes S.OOBlNo 4.670
Majority for, 3096.
Regulating- sale of delinquent prop
erty by City Treasurer
Tes 9.203INO...'' 3.243
Majority tor. 5961.
Creating office Df Sergeant of Po
lice Tes S.82SjXo 3.667
Majority for, 6161.
Annexing additional territory in sec
tions 20 and 30, T. W. P. In R. 2
E., TV. M.
Tes 7.803LKO 4.020
Majority for. 3883.
That the amendments to the Portland
city charter, voted at the municipal elec
tion of June 3, last, authorizing improve
ment bond issues aggregating Jo.aas.OOO,
were illegally enacted and are void, is
the tenor of the decision that will be
made by John B. Cleland, judge of the
State Circuit Court for Multnomah
County. The finding affects not only the
bond issues, but also the following char
ter amendments: Providing for the im
provement of streets by district;- re
monstrance of four-fifths of the property-owners
to defeat street improve
ments; regulation of delinquent property
sales; cseatlon of the office of sergeant
of police; annexation of additional ter
ritory to the city, and the, assessment of
abutting property for the laying of water
Decision Is Far-Reaching.
This far-reaching decision, one of the
most important ever rendered in a lo
cal court. Is in the case filed by Francis
I. McKenna to . test the legality of the
bond issues and' other , charter amend
ments. The c&iplaint was filed only
against the amendment ' authorizing the
Issue of $3,000,000 of water bonds and the
assessment of property . for mains. This
was a friendly suit brought on the ad
vice of Seneca Smith, and the purpose
was to test the legality of all charter
amendments adopted at the June elec
tion, but lawyers agree that the ruling
will apply to all the measures with the
same force as to. the water bond pro
vision, and if the State Supreme Court
sustains Judge Cleland, all the improve
ments contemplated and legislation voted
must await the favorable action of the
electors at the next regular election, or
at an election specially jailed.
No Formal Decision as Tet.
The decision of Judge Cleland has not
yet been handed down, and will not be
until January 7, when the regular term
of the Circuit Court opens. The an
nouncement of the ruling, however, is
official. At the request of City Attor
ney Kavanaugh and Seneca Smith, rep
resenting both sides in the case, the
court has made its position known. This
action was necessary in order that Im
portant munlolpal business might pro
ceed in accordance with the ruling on
the amendments.
The Invalidity of the water bond amend
ment, and consequently of all others, as
Interpreted toy Judge Cleland, is due to the
Irregular manner in which the measures
were presented for a vote of the people,
These amendments were all placed on the
ballot, by resolution passed by the Coun
cil. In his decision Judge Cleland will
hold that the Council had no authority for
Its action. Such legislation, to be legal,
he will rule. nust be inaugurated by peti
tions signed by legal voters of the munici
pality. The improvement bond' issues voted in
June and which will be held invalid are
mm follows: Issue of H.OuO.OOO water bonds.
issue of $1,000,000 park and boulevard
bonds, issue of $500,000 dock bonds, issue
of $273,000 general bonds for fireboat and
water mains..
The effect of the Circuit Court's decision
will be to delay all action under the char
ter amendments. No bonds have yet been
issued, and whenever possible the city au
thorities have declined to act under the
provisions of the amendments. In several
Instances, however, this has been unavoid
able, but the action taken will not now be
binding, and until the question of legality
has been finally settled by the State Su
preme Court the city authorities and leg
islative bodies 'must proceed as if . the
amendments had never been passed.
Case to Be Appealed.
"Without doubt the case will be carried to
the Supreme Court in the hope that' the
city may ultimately win and the will of
the electors be carried out. City Attor
ney Kavanaugh announces that as soon
as possible after the decision of Judge
Cleland has been handed down he will
prepare an appeal to the Supreme Court.
He will also request that, in view of its
extreme importance, the appellate body
expedite the appeal by a special hearing.
No question of constitutionality is in
volved, and the case cannot, therefore, be
carried beyond the State Supreme Court.
The immedjate reason for requesting
Judge Cleland to make known his decision
at this time was to give the Water Board
a definite basis on which to' estimate its
expenditures for the coming, year. The
water bond amendment provided also for
assessing the cost of mains to abutting
property. If this provision had become
effective, a large item in the expense of
the water system would have been met by
direct assessment and the present water
rates consequently could have been ma
terially reduced at the first of the year.
Jio Lower Water Rates.
In view of the present ruling there 'will
probably be no reduction of water rates,
at least until 1909, as the schedule must
be adopted by the Board and approved by
the Council before January L
- Another important effect of the decision
will be to delay the purchase of new
parkl and laying out of many fine boule
vards. Using a special appropriation of
$5000, the- Council recently employed J. C.
Olmsted, an Eastern landscape archi
tect to map out an elaborate park sys
tem for Portland. His report has been
submitted and its was hoped to ' proceed
soon to acquire a portion of the land
needed for these parks. It Is now evi
dent that there will be no money avall
abl for many months to carry out these
plans. -
After the June election, so much doubt
was expressed as to the legality of the
charter amendments that it was decided
to make a thorough test of them in the
courts. Seneca Smith headed -the move
ment to bring the matter to trial and pre
pared the complaints for filing. At first it
was proposed to make -a test case of the
bridge bond amendment, but the water
bond measure was finally selected, as it
was believed that all of the objections
that could, be raised to any of the amend
ments were to be argued against it.
Two Leading Contentions.
' There were two leading contentions
in the case against the city.' The first
was that the Council had no authority to
Initiate legislation. It was contended in
the complaint that the electors had no
authority to pass on the amendment,
"unless the same should be submitted to
them upon an Initiative petition as pro
vided in the constitution of the state of
Oregon" by the varous amendments, ap
plying to ,the case. It is upon this point
that Judge Cleland has based his finding.
It was also represented that the amend
ments were invalid because the charter
explicitly provides a manner in which
the cost of public improvements shall be
met, and that this method was not fol
lowed. Judge Cleland says that this con
tention' washot sustained, and that he
also did not take into consideration the
further contention that the June election
was not advertised in the manner pro
vided by the charter.
The case of the city was fought by
City Attorney Kavanaugh and Deputy
City Attorney Grant.
Mr. Kavanaugh's Views.
"There is no doubt that the decision of
Judge Cleland will apply in effect to all
charter amendments passed at the June
election," said Mr. Kavanaugh last night,
"with the sole exception" of the amend
ment granting a franchise to the Econo
my Gas Company, which amendment was
initiated by direct petition. All othjr
amendments were placed on the ballot by
resolution of the Council and the Court
holds that In this the Council acted with
out authority.
"Every law Is regarded as valid until
it is declared otherwise. Therefore Te
.have preceded on the ground that the
amendments were regular. However, we
have avoided acting under them when
ever possible. TVe shall appeal to the
State Supreme Court and until action is
taken by that body, the amendments
must be regarded as unquestionably in
valid." Mr. Grant Also Talks.
"This case is of unusual importance,"
declared Mr. Grant, "because we have,
been exploring entirely new . territory.
There are n decisions applying to initia
tive' legislation of this character, besides
the ones that hare been made In Oregon.
We have contended that the Legislature,
In giving municipalities sole power to
amend their own charters, provided that
the measures could be initiated in any
orderly manner if only they were brought
to a fair vote of the people. The vote
at the last election shows that there was
much interest taken In the amendments."
If the Appellate Court agrees that the
amendments were illegally instituted, t..e
quickest way to re-enact them Is to call
a special election. The charter provides
that this must be done by ordinance, and
that such election shall not bo held with
in less than 30 days after the ordlnan-
is passed. Besides this, M would require
an even longer time to circulate petitions,
for each amendment . would have to be
supported by the signatures of at least 15
per cent of the voters before it could e
placed on the ballot. The expense of
such an election would be several thous
and dollars.
. There Is the possibility, too, that some
of the amendments might fail to pass if
they were again broug..- before the peo
ple. The most important of all . the
'Concluded on Pace s.k
Third in One District
in Nineteen Days.
Darr Mine, Near Connellsville,
Scene of Disaster.
Between 200 and 250 Men En
tombed and Hope of Iiife
' Slight Foreigners Escape by
Going to Church.
JACOBS CREEK, Pa., Dec. 19. An ex
plosion of gas in the Darr mine of the
Pittsburg Coal Company, located here,
today entombed between 200 and 258
miners, and there is scarcely a ray of
hope that a single one of them will be
taken from the mine alive. .Partially
wrecked buildings in the vicinity of the
mine and the condition of the few bodies
found early In the rescue work indicate
an explosion of such terrific force that
it seems impossible that any one could
have survived It. All of the 13 bodies
taken out up to this time are terribly
mutilated, and three of them are head
less. This is 'the third mine disaster since
the first of the month in the veins of
bituminous coal underlying Western
Pensylvanla and West Virginia, for the
Naomi mine near Fayette City and the
two mines at Monongah, W. Va., in
which the earlier explosions happened,
are In the same belt as the local work
ings. Today's catastrophe swells the
number of victims of deadly mine gas for
the 19 days to between 550 and 600.
Escape by Going to Church.
That today's disaster does not equal
or even surpass in loss of life and at
tendant horrors the one in West Virginia
Is due to the devotion to church duties
of a considerable number of the miners.
In observance of . the church . . festival,
many of the 400 or more men regularly
employed at the mine did not go to work
this. , morning. Those who . escaped
through this reason are members of the
Greek Catholic Church and they sus
pended work to celebrate St. Nicholas'
As was the case at Monongah, the ex
plosion followed a brief shut-down, the
Darr mine having been closed Tuesday
and Wednesday. It was just 11:30 o'clock
when the tenth trip of loaded cars had
been brought out to the tipple that there
came an awful rumbling sound, followed
Immediately by a loud report and a. con
cussion that shook nearby buildings and
was felt within a radius of several miles.
At the same time there came out of the
mouth of the mine an imense cloud of
dense smoke and dust that floated across
the Youghiogheny River.
Fears of Fire Xot Kealized.
Intuitively every one in . the vicinity
knew what had happened and all started
for the one place the mouth of the
mine. The river separates, the mine
and the homes of many oY. the miners,
so that only some of those who started
for the scene were able to reach it, there
being scant facilities for "crossing the
stream. To those who could not cross
the water, the smoke . and dust pouring
from the mine's mouth told a story Qf
seething flames back lri the workings,
and from this source came reports that
were persistent until late in the day that
the mine was burning. The ventilating
fans were kept in operation almost with
out interruption, however, the power
plant . having withstood the force of the
Representative David A. De Armond.
of Missouri, Who Had a Fist Fight
With Representative Williams In
the House of Representatives.
explosion, and up to this time the res
cuers have found no fire at any place In
the mine. -
Only One Escapes Alive.
As far as known only one man who
went to work this morning escaped. Jo
seph Mapleton, a pumper, emerged from
one of the . side . entrances shortly after
the explosion. He had left the part of
the mine where most of the men were
working and. was .on. the way o the tn-gine-room
for oil.
"I. was in entry No. 21," said he, "when
I heard an awful rumbling. I started
toward the 'entry, but the next Instant I
was blinded and for a little time I did
not know anything. ' Then I got to the
side entry and worked my way out."
Mapleton was .. somewhat .. cut ' and
bruised, but after going home and hav
ing his injuries dressed he returned to
the mine and Joined the rescuers.
- Rescuers Seek Survivors.
William Keivlngton, superintendent of
the mine, was not in the mine when the
explosion occurred and he quickly or
ganized . rescuing parties, starting one
force of 25 men with reliefs at short In
tervals In the main entry and a similar
force at a side entry. It is hoped to
reach the greater -part of the victims
through the latter. So far little trouble
has been encountered on account of gas
or lack' of air by the rescuers. While
the officials and the rescuers have only
the faintest hope that any of. the men
may be living, all work Is being carried
on upon the theory that some may have
(Concluded on Page 8)
Editor Asked to Sign
Received in Silence by Small
Berlin Court Decides on Question
Raised of Jurisdiction Writer
Explains Eulenberg's Refer
to the Ka iser .
BERLIN, Dec. 19. Maximilian ' Harden,
who two.montns ago was the favorite of
the people, who was cheered and con
gratulated by crowds of admirers, as he
came and went to the Courthouse, was
today received In silence by the few hun
dred persons who had collected outside
the main entrance of the criminal court
to witness the departure of the principals
in the present hearing of the Harden
Von Moltke case. Harden is accused
by the state of having offended society
by his writings in Die Zukunf t, the maga
zine of which he is editor.,
Harden's , own attitude also has
changed. Instead of the passionate and
denunciatory appeal to the people of two
months ago, he was today cautious and
evasive and took care' to keep closely be
hind every available legal -barrier.
Explains Reference to Kaiser.
The name of Emperor William was
mentioned only once or twice In the hear
ing today, and then in Harden's' explana
tions to the presiding Judge of his allu
sions. In the dialogue at night between
the person called "The Hopper," and the
person called "The Sweet One." ''I
merely Intended," said Harden, "to bring
out the fact of Buleriberga too great in
fluence; that it was his habit to refer to
the Emperor as 'darling.' This was a
most deplorable situation."
The day was speit in a legal contro
versy over the jurisdiction of the court
and the examination of Harden. Neither
Prince Eulenberg nor any of the notable
witnesses were present.
There is reason to believe that nego
tiations are still on foot looking to the
withdrawal by the public prosecutor of
the charges against Harden on condition
that Harden sign a document satisfac
tory to Count Von Moltke.
Harden Broken in Health.
Herr Harden was haggard and worn and
his face paled and flushed alternately
when he appeared before the Criminal
Court today and took his place in the
dock to answer the accusation brought
in the name of the state that he had
offended not only against General
. 4
Count Kuno von Moltke, but against
the Interests of society in writing in
Die Zukunft of von Moltke, Prince
Philip Eulenberg:, General Count Wil
helm von Hohenau and others in the
manner in which he did.
The president invited "him to leave
the prisoner's bench and take a more
comfortable chair next to the attor
neys. The bailiff spread out Harden's
fur coat on the chair in order to make
him as comfortable as possible. The
prisoner was shaken from time to lime
with fits of coughing, which he tiled
in vain to suppress. Dr. Marx, Harden's
physician, said when 'Harden got up
this morning that he absolutely dis
approved of his appearing in court and
disavowed all responsibility for the
effect on his health.
Harden listened languidly to the ar
guments of the lawyers concerning the
Jurisdiction of the court. These lasted
for two hours. The Judges then an
nounced that they were competent to
try the case. Count von Moltke's at
torneys reserved the right to ask that
the public be excluded during the tak
ing of testimony relating to the shame
ful vices.
Read Political Articles.
The indictment against Harden' was
then read, ' covering Ms political arti
cles in Die Zukunft for a period of sev
eral months.
Questioned about these by the court.
Harden replied he had written them in
the interests of his country. He had
no intention of libeling Von Moltke.
He considered the influence of Prince
Eulenberg to be harmful and he sought
to remove it.
He said he had no desire to call wit
nesses to prove that Von Moltke was
abnormal. "I have a definite convic
tion," the prisoner said. "I have said
nothing libelous. If the court assumes
that the articles are defamatory I atm
here to bear any pefialty."
There will be 28 witnesses, exclusive
of a medical expert for the defense.
In addition, evidence will be given for
Editor Harden by Baron von Berger,
manager of the Hamburg City Theater,
who sought by negotiation and diplomacy
to break up the scandalous "round table"
previous to Harden's newspaper attacks.
De Ciaparede, the Swiss Minister to
the Berlin court, and his wife, who were
in the Von Moltke circle, are believed to
be In a position to testify regarding
Count von Moltke's, shortcomings.
Mother-in-Law Takes Part.
Goeritez, Prince zu Eulenberg's major
domo at Lleben, will testify, and so will
Frau von Heyden,. the mother of Frau
von Elbe, who was divorced from Von
Moltke. She Is the bitter enemy of her
daughter's first husband.
Other witnesses for the defense will
be Lawyer Ilch, an attorney in the di
vorce proceeding; a pastor named Jung
nickel, a mysterious witness whom Har
den has Just secured; another hitherto
unknown witness maned Kistler, from
Munich; Dr. Cords, from New Badenburg,
who will tell about Frau von Elbe's
.health at the time of the divorce; Lieu
tenant von Kruse, Frau von Elbe's son;
a Sister of Mercy named Lange, who at
tended Frau von Elbe, and Herr Lone
man n.
The witnesses for the defense will In
clude three Berlin police commissioners
who are supposed to know all the mys
teries of darkest Berlin, especially its
grossest impurities.
The public prosecutor has summoned,
in addition to Count von Moltke, who
will give his evidence, his cousin. Colonel
von Moltke. who was the Count's emis
sary to Editor Harden regarding the
proposed duel and other matters In con
troversy between them. Frau von Elbe
(Concluded on Pae SA
The Weather.
YESTERDAY'S Maximum temperature, 3S
deg. : minimum. 32.
TODAY'S Occasional rain, possibly part
snow in the early morning-; winds mostly
Trial of Harden begins, but German govern-
ment negotiates compromise of case
Page 1.
Powder explosion at Palermo kills 2 per-
sons and wrecks -many houses. Page 5.
Armed truce between tactions In Teheran.
Page 8.
Williams and De Armond have fist fight
in House. Page 5.
Cannon appoints House committees. Page 5.
Japanese statesmen talk on voyage of fleet.
Page 13.
Heney protests against Bristol's removal.
Page 6.
Philippine Assembly prepares terms to ask
Congress. Page 13.
Bills to prohibit dealing In futures sure of
action in Congress. Page 1.
New York County Committee postpones ac
tion on indorsement of Hughes. Page 6.
James Hamilton Lewis candidate for Gover
nor of Illinois. Page a.
New York . Aldermen re-elect President
Ahearn. whom Hughes removed. Page 9.
Robber caught in act of breaking Into treas
ure car. Page 6.
Walker, the bank-wrecker, attempted aul
, cide after capture and will resist extra
dition. Page 19.
Goldfield mineowners say efforts at com
promise come too late. Page 4.
Mine explosion in Pennsylvania kills between
200 and 250 men. Page 1.
Portland student whose money Is tied up in
broken bank enlists In marines. Page 8.
Railroad men give figures to Justify ad
vance In lumber rates. Page 7.
Pacific Coast.
Osteopath Moore' starts row in Board of
Medical Examiners. Page 6.
Prosecution springs sensational evidence
against Pettlbone. Page 6.
San ' Francisco bank-wreckers indicted
Page S.
Commercial and Marine.
Movement of the Northwestern grain crop.
Page 19.
Small change in wheat prices at Chicago.
Page 19.
Holiday feeling In stock market, page 19.
December wheat exports more than a mil
lion and a quarter bushels. Page 18.
Portland and Vicinity.
Circuit Judge Cleland holds all charter
amendments voted last June invalid; far
reaching decision. Page 1. .
Police can find no trace of Glttings' mur
derer. Page 12.
Christmas shopping in full awing. Page 14.
District Attorney Manning investigates con
nection of prominent persons with wreck
ing of bank. Page 12.
Hill , and Harriman interests to have sepa
rate terminals in Portland. Page lg.
Council determined Bailiff Macdonald's sal
ary shall be paid. Page 15.
City gets option on alta for East tilde po
lice station. Pace is.
Kansan Would Forbid
Dealing in Futures.
Same Measure Would Stop
Dealing in Cotton.
Also Denied Vse of Malls Scott of
Kansas May Force Through
Measure Which Would Crush
Out Boards of Trade.
"W'ASHINOTOX, Iec. 19. (Special.)
Charles Frederick Scott, Representative
from the Second Kansas District, cele- .
brated his appointment to the chairman
ship of the House committee on agricul
ture this afternoon by introducing a bill
to prevent dealing in grain . futures. The
bill goes to his committee for Considera
tion. The chairman proposes that the
committee shall get busy with it just as
soon , as- the agricultural appropriation
bill is out of the way.
This is the measure the Boards of.
Trade throughout the country have been
fearing. There already Is before the -committee
on agriculture the Burleson
anti-option bill, which relates to gambling
In cotton. The same bill relating . to
cotton has been Introduced by Senator '
Culberson, of Texas, in the upper branch
of Congress. There is more than a fair
prospect of action at the House end of
the Capitol with respect to both the
grain and cotton bills.
Same Bill Offered for Cotton.
Mr. Scott's bill had for its prototype
the Burleson measure. It is the self-same
bill, in fact, with the word "grain" sub
stituted for the word "cotton." It pro
poses to reach and break up dealing In
futures by prohibiting telegraph and tele
phone companies to transmit messages
relating to contracts for future delivery,
when it is not Intended that the article
contracted for shall be actually delivered
or received. The mails are refused to
publications containing accounts or
records of transactions on exchanges
whose methods are deemed objectionable
under the provisions of the bill.
Put Exchange Out ol Business.
The object of the Burleson bill, accord
ing to the admission of Its author, is to
but the New York Cotton Exchange out
of business. Mr. Scott would do the
same thing with respect to the boards .of
trade throughout the country which
serve as the mediums for speculating in
wheat and grain as the Cotton Exchange
serves as a medium for speculation in
the great staple of the South.
It has been designed to amend the
Burleson measure so as to embrace grain
as well as cotton. In the, last Congress
the committee was ready to report out a
similar bill amended in this way, but
desisted at the solicitation of friends of
the measure, who saw no chance for a
vote in the House in the closing days of
the last session. This bill promises to bs
one of the very important pieces of leg
islation to command the attention of the
present Congress.
Man Behind the Bill.
Mr. Scott is serving his' fourth term
in Congress. He never has come into the
limelight to any extent heretofore, but as
chairman of the committee on agriculture
at a time when that committee will at
tract more than ordinary attention, cs- t
peclally as he Is the champion of the
anti-option movement, he is liable to be
much in the public eye. He was born on
a Kansas farm in 1SS0, was educated In
the common schools and state university
and after several months of fortune
seeking in the Western territories and
Colorado, returned to his native county
and purchased a newspaper at Iola, the
Register, which he still owns and edits.
He has been president of the Kansas
State Editorial Association and of the
Kansas League of Republican Clubs and.
represented his district on the Presiden
tial electoral ticket in 1904. Before com
ing to Congress he served four years in
the Kansas Senate.
Entombed Men May Be Released by
ELY. Kev., Dee. 19. The three miners
entombed in the Alpha mine will, un
less further trouhle is experienced,
probably be released by Christmas day.
according to Foreman Gallagher, in
charge of the rescue work. The 600
foot level was reached last night by
the rescue party at work on the cave
in, and now that danger of a further
cave-in has been averted, work. Is be
ing pushed with all possible speed.
The men have been imprisoned since
December 4.
At Xoon Yesterday, Ships Were Off
Florida Coast All Is Well.
19. At noon today the battleship fleet is
due east of Jupiter Inlet, Fla. The
speed today was Increased to 11 knots an
hour. The ships are still in double col
umn formation. The weather is perfect
All hands are dressed in white.