r
VOL. XL VI XO. 14,690.
PORTLAND. OREGON, TUESDAY, JANUARY 7, 1908.
PRICE FIVE CENTS.
TO
E
L
Supreme Court Finds
Judge Erred.
AS TO SETTLERS' FINAL PROOF
Land-Office Rules Require Il
legal Oath.
JURY WRONGLY ADVISED
I. aw Does Not Require Oath Deny
ing Agreement to Sell When Mak
ing the Final Proof- Merits of
the Case Are Not Affected.
WILL BE TRIED AGAIN.
TUCSON. Aril.. Jan. 6. Asked for
a statement regarding the William
son rue, Francis J. Heney. special
Government prosecutor, tonight said:
"I have not been officially noti
fied of the decision of th Supreme ,
Court, and I can consequently civ
no definite opinion in this matter.
I will state, however, that. If Will
iamson has been granted a new trial
he will be tried again."
OREGONIAN NEWS BUREAU. Wash
ington, Jan. 6. Because tho Judge be
fore whom ex-Representative William
son was tried erred in his instructions
to the jury, the Judgment of the lower
court was today reversed by the Unit
ed States Supreme Court and the case
remanded for retrial. That the indict
ment was correct, that the admission
of evidence was in accordance with law
and that the rulings of the court were
right and proper is affirmed, but be
cause the trial Judge erred in admit
ting certain testimony with regard to
final proofs and because he erroneously
Instructed the Jury with regard to this
same evidence, the whole case must
again go to trial or the Indictment
must be quashed.
"Where the Judge Erred.
The Supreme Court construes the
timber and stone act specifically to re
quire cntrymen, at the time of making
ppllcatlon for land, to submit an affi
davit of good faith, showing that they
have no agreement, actual or Implied,
to 'sell the land upon acquiring title,
but there is no requirement that such
an affidavit shall be made when final
proof is submitted. The Indictment of
Williamson made specific reference to
the affidavit required by law, and did
not mention the similar affidavit which
Is exacted by the Land Office regula
tions at the time of final proof. Yet
evidence was admitted to show that
various entrymen had committed per
jury in making such affidavits with
their final proof, and the Judge, In his
Instructions to the Jury, specifically In
formed it that it could return a verdict
of guilty If satisfied that the evidence
showed such perjury had been commit
ted at the time of making final proof.
The admission of that evidence and the
Instructions relating thereto proved the
undoing of the case against William
son. Makes Bonaparte Groan.
The opinion of the court was deliv
ered by. Justice White, and was con
curred In by all the Justices save Har
lan, who Is of opinion that no substan
tial error was committed and that the
judgement of the lower court should
be affirmed. As so often happens, the
court's opinion as It was read led those
present to conclude that the Judgment
of the lower court was to be affirmed,
for point by point the court sustained
the contention of the Government un
til it came to the question of affidavits
required on entrymen at the time of
making final proof.
Then it was that an Inkling was given
of what the decision was to be, and,
when that Intimation was thrown out,
Attorney-General Bonaparte, who was
present and who had personally argued
the Williamson case, emitted a groan
that was audible in all parts of the
courtroom.
Williamson Xot Privileged.
In its opinion, the Supreme Court ad
mits that the case was properly before
it, Williamson having raised a Consti
tutional question in regard to his al
leged immunity from arrest or sentence
because he was a membar of Congress
at the time of conviction. The court,
however, emphatically disposed of that
point by holding that Williamson's al
leged offense constituted a breach of
the peace, and, therefore, the court had
a right, under the Constitution, to Im
pose sentence immediately after his
conviction.
The court held that assignment of er
ror which assailed the sufficiency of
the Indictment to be without merit-
The court also sustained the rulings of
the lower court as to the admission of
various kinds. of testimony to which
exception was taken by Williamson's
attorneys.
Where Error Crept In.
When the vital part of the opinion
was reached. Justice White quoted the
timber and stone act and the Depart
ment regulations thereunder, and re
sumed, giving it as the opinion of the
court that the Indictment, In charging
that perjury had been committed, re
L
UM50N
HAV
m m
lated only to false swearing at the
time of making application for the
land and not at the time of making
final proof.
"We hold." says the court, "that the
indictment does not charge conspiracy
to suborn perjury in respect to making
final proofs and therefore there was
prejudicial error committed in the In
structions to the jury on that subject."
It was this announcement that
caused the Attorney-General to groan.
Because this particular point is likely
to be raised in future cases, the court
dwelt at considerable length on the
affidavits that can properly be re
quired of entrymen under the timber
and stone act. It was shown that sec
tion 2 of the law specifically re
quires that every applicant for tim
ber land must, at the time of initiat
ing entry, make affidavit that he took
Ex-Representative J. ". Williamson,
Who Has Been Granted a New
Trial for land Frauds.
the land for his own use and benefit
and not for speculative purposes, and
that he has made no agreement, actual
or implied, to dispose of same when he
acquires title from the Government.
But the court points out that section 3
of the act makes no reference to
such affidavit at the time of making
final prooit and, that requirement Be
ing omitted by law, the Commissioner
of the General Land Office exceeded
his authority in promulgating a regu
lation requiring such affidavit with
final proof. After expressing this
opinion, the court holds:
Land-Office Rule Illegal.
We cannot perceive how. ' under the
statute, if 'an applicant 'has in 'good faith
complied with the requirements of the sec
ond section of the ' timber and - stone ct
and. pending publication of notice, has con
tracted to convey, after patent, his rights
to the land, bis so doing could operate to
forfeit his right
When the context of the statute is
brought Into .view, we are of 'the opinion
that it cannot be possibly held, without
making by Judicial legislation a new law,
that the statute exacts from the applicant a
reiteration at the final hearing of the dec
laration concerning his purpose in acquiring
title to the land, since to do so, would be to
construe the statute as including In the
final hearing that which the very terms of
the statute manifest were intended to be
excluded therefrom. It remains to see,
whether It was in the power of the Commissioner-General's
office to exact rules and
regulations by which an entryman would
be compelled to do that at the final hearing
which the act of Congress must be con
sidered as having expressly excluded, in
order thereby to deprive the entryman of a
right which the act by necessary Implication
conferred upon him.
Referring to the authorization given by
the act of the Commissioner to prescribe
rules for the enforcement of the statute,
he said:
This cannot be held to have authorized
him. by such an exercise of power, virtually
to adopt rules and regulations destructive
of rights which congress had conferred. As,
then, there was no requirement concerning
the making In the final proof of an affi
davit to the particulars referred to and as
the entryman who had complied with the
preliminary requirements was under no ob
ligation to make such an affidavit and had
full power to dispose ad Interim of his
claim upon the final issue of patent, we
think the motive of the applicant for proof
was Irrelevant, even under the broad rule
applied In this case, and therefore that
error was committed not alone In instruct
ing the Jury that the indictment covered, or
could cover, the procurement of perjury in
connection with the final proof, and that the
Jury might base a conviction thereon, but
In admitting the final proof as evidence In
tended to show alleged Illegal purpose in the
primary application for the purchase of the
lands.
Merita of Case Xot Affected.
Just what arrangements will be made
. OTHER CASES NOT PAR.tI.IEU
,At the trial of the Williamson
case the court admitted testimony
by the Government showing that
agreements for the purchase of land
were -made between the defendants
and various entrymen between the
time of filing and the date of mak
ing final proof. The Supreme Court
holds that this was an error; that a
conspiracy can only be established
by showing that the agreements
were made prior to the time of filing.
The decision docs not affect any
of the other land-fraud cases that '
have been tried or are pending for
trial. Williamson and his co
defendants. Gesner and Biggs, were
charged with subornation of perjury
Inducing settlers to perjure them
selves. In all other conspiracy
cases the defendants are charged
with defrauding the Government of
its public lands.
for bringing Williamson to trial has not
yet been ae.crr 'ned. The Attorney-General
announce! tonight that, although he
had not reached a final determination, it
is probable th.-tt the Government will ask
for an eariy retrial. Inasmuch as the
judgment of ill i trial court was reversed
solely because of an error of the presid
ing Judge !r. admitting testimony as to
final prcf at"J in his instructions to the
Jury on th's snme point. The Attorney
General Itl'cves that the opinion of the
Supreme Court does not affect the merits
of the Government's case against Will
iamson. Kb helieves there Is ample evi
dence to j'-.si-.fy a new trial, and, in view
of the .'ar. tl.it the Supreme Court sus-
:luded on Fage 3.)
RAPID PROGRESS-"
WITH THAW JURY
Nine Probationary Jur
ors Secured.
NEARLY ALL TO BE CHALLENGED
Only Two Considered Fixtures
by Both Sides.
EVELYN THAW IN COURT
Center of Interest to the Curious
Crowds, From Which Women Are
Rigidly Excluded Insanity
Is Thaw's Sole Defense.
NEW YORK, Jan. 6. At? the close of
three court sessions, which marked the
first day of the second trial of Harry K.
Thaw for the alleged murder of Stanford
White, nine tentative jurors had been se
lected out of 67 talesmen. All of the men
In the jury-box are subject to peremptory
challenge, of which each side has 30. In
view of the difficulty experienced last
year in discharging five jurors after they
had taken the oath of service, it was
agreed that this time the oath would not
be administered until both sides are satis
fied with the panel.
Legal Insanity at the time of the trage
dy is to be the sole defense. This was
made clear at the very outset of the pro
ceedings today, when Mr. Littleton for
mally served notice that the former plea
of not guilty was amended by .the speci
fication that the defendant was Insane
when the homicide was committed.
Nine Tentative Jurors.
The occupants of the jury-box at the
conclusion of tonight's session were as
follows :..-.
1 Charles EJ. Gremmele. shlpbroker.
. 2 John Hatchet t, cigar dealer. .
3 George B. Moorwood, Importer.."--
4 Floyd S. Sanford, bank manager.
A James E. Conway, hotel-keeper.
6 William B. Brewer, decorator.
7 Arthur Ra Naethlng. baker.
8 Maurice Bouvler, exporter.
9 George W. Cary. drygoods dealer.
Of the above men it was generally pre
dicted that Mr. Gremmeis would be chal
lenged by the District Attorney. He de
clared he had certain scruples against
capital punishment,' but thought he could
lay them aside if sworn as a juror. Mr.
Moorwood entertains certain opinions
with regard to "expert' medical testi
mony and probably will go out on chal
lenge from the defense. Mr. Sanford may
also be excused, for he confessed to an
opinion regarding the truth of certain
important testimony at the first trial. Mr.
Conway, who said he read the evidence
presented a year ago without gaining any
particular opinion from it, may be made
the subject of a cuallenge from Mr. Je
rome. Mr. Hatchett and Mr. Naethlng
appear like iixtures. Mr. Bouvier, who
.......................................... ............. ................
i
THE FREE AND EASY PISTOL AND THE REASONS WHY IT IS FREE AND EASY j
:
j - flW SUTEKFOUtO HUT n . ' j
t t t .......... ........................ t
has slight prejudice against defenses of
insanity, probably will not be retained.
Female Spectators Barred.
The trial opened with little or no cere
mony. The only women allowed to be
present are the members of the defend
ant's family and newspaper writers. Mrs.
Evelyn Thaw was again the "center of
interest, tven to the exclusion of the de
fendant himself. She was followed by
throngs of curious persons as she en
tered and left the courthouse for the
morning and afternoon sessions.
Every possible convenience is to be pro
vided for the Jurors, who will be locked
up throughout the trial. They are to
be quartered in one of. the fashionable
hotels on upper Broadway and luncheon
Is to be served at an expensive downtown
restaurant.
Joslah Thaw waa the only member
t .WJjt li..lMlllill)li..LV.'J":J;WM:-'t;gw;
I If -r J
Evelyn Xesbit Thaw, Who Will
Agaio Tell the Story of Her Wrongs
at the Hands of Stanford White at
the Trial of Harry K. Thaw.
of the defendant's family present at
the evening session. The unexamined
talesmen were tho sole spectators.
Thaw seemed thoroughly to relish the
idea of being out of the Tombs Prison
after nightfall his first experience of
the kind since his Incarceration, follow
ing, the Madison-Square Roof Garden
tragedy June 25, 1906.
Jerome Explains Insanity.
Mr. Jerome explained to each of the
proposed jurors in turn that a person
Is excused from criminal liability in
New York State only on proof that he
was, at the time of the deed, suffering
from such a mental defect that he did
not know the nature or quality of his
act, or that the act was wroig. He
also 'questioned eac'n TtaJcshutn closely
as to any opinion held or any consci
entious scruples against capital punish
ment. Mrs. George Lauder Carnegie, hie
sister, and Joslah Thaw, one of his
brothers, called on the defendant In
the Tombs Prison and brought him a
message of greeting from his mother,
who is still too ill at her home In
Pittsburg to come on for the trial.
It was the first time in several
months that Thaw had seen his sister
and brother, and his greetings were
affectionate.
Oregon Boundary Line Suit.
OREGONIAN NEWS BUREAU. Wash
ington, Jan. 6. Argument in the suit of
Washington against Oregon, to determine
the location of the state boundary line
In the lower part of the Columbia River,
will probably not be heard In the Su
preme Court before Wednesday. E. C.
MacDonald and M. J. Gordon are to make
the argument for Washington and Attorney-General
A. M. Crawford for Oregon.
LIABILITY AGT NOT
CONSTITUTIONAL
Supreme Court Arrives
at Decision.
GOES BEYOND LEGAL BOUNDS
Act Includes Things. Outside
Powers of Congress.
BARE MAJORITY DECIDES
Decision Is in Two Suits Brought by
Relatives or Men Killed by Rail
roads Lower Court Arflrmed.
Vote Stands Five to Four.
WASHINGTON. Jan. f. That the
Congressional act known as the em
ployers' liability law is not in accord
ance with the Constitution of the Unit.,,
ed States because it goes beyond the
bounds permitted in the regulation of
interstate commerce, was the conclu
sion reached by the Supremo Court of
the United Steles in deciding two dam
age cases coming to the court from the
Federal Courts of Kentucky and Ten
nessee, which were brought under the
provisions of the law.
The decision was announced by Jus
tice White, the court standing 6 to 4
against the law. Even among the five
who voted not to sustain the statute,
there were different shades of opinion.
Following, are the principal points
from Justice White's opinion:
Justice White's Opinion.
The act. being addressed to . all common
carriers engaged in interstate commerce, and
Imposing a liability upon them in favor of
any of their employes, without qualification
or restriction as to business In which the
carriers or their employee may be engaged
at the time of the Injury, of necessity includes
subjects wholly outside of the power of Con
gress to regulate commerce.
"As 'the act Includes many subjects wholly
beyond the power to regulate commenrce, and
depends for its sanction upon that authority,
It results that the act is repugnant to the
constitution, and can not be enforced unless
there be merit in the propositions advanced"'
to show that the statute may 'be saved.
So far as tho face of the statute' is con
cerned, the argument is this, that because
the statute says carriers engaged In com
merce between the states, etc., therefore the
act should be Interpreted as exclusively ap
plicable to interstate commerce business and
none other of such carriers, and that the
words "any employe" as found in the statute
should be held to mean "any employe" when
any employe is engaged only in interstate
commerce. But, thia would require us to
write into the statute words of limitation and
restriction not now in it. But, if we could
bring ourselves to modify the statute by writ
ing in the words suggested, the result would
be to restrict the operation of the act as to
the District of Columbia and the Territoriea
Concluding, as we do, that the statute, while
it embraces subjects within the authority of
Congress to regulate commerce, also includes
subjects not within ita constitutional power,
and that there Is also inter-blended in the
statute the phrase that they are Incapable of
separation, we are of the opinion that the
court, befow rightly held the statute to be
repugnant to the constitution and non-en-forcible
and the Judgments below are, there
fore affirmed.
Justices Do Xot All Concur.
The decision was in suits for damages
one being the case of the widow of Will
Howard, who was killed in an accident
near Memphis: the other that of the
mother of Morris S. Brooks, a fireman,
killed on the Southern Pacific In Nevada.
In both cases the railroads obtained a
verdict against the complainants on the
ground of "unconstitutionality" of the
law.
The Chief Justice, Justice Brewer and
Justice Peckham joined with Justice
White In the result arrived at, but they
did not follow him in his assertion of the
power of Congress to regulate the rela
tions between master and servant. Jus
tice Day concurred In the decision. Jus-
T ...set
I r . I
i lr' ...
I ! ! , . s ' J
f i - , H -
Halted States Senator Robert I..
Owen, of Oklahoma, Accused of
Defrauding Indians of Land.
tice Moody dissented entirely, holding
that the law is constitutional on all points.
Justices Harlan and McKenna united in
an opinion affirming the constitutionality
of the law, but holding it to be applica
ble only to employes engaged at the time
In interstate commerce, and not those
engaged In the state only in which the
accident happened. Justice Holmes also
delivered a brief dissentUg, opinion.
Bummed up, the court stood five Tto four
against the constitutionality of the law.
Justices Harlan, McKenna, Holmes and
Moody sustaining the validity and the
other members of the court holding the
opposite position.
FRAUD IN CH00SING INK
Indictments Found Against Chemist
In Government Bureau.
WASHINGTON, Jan. 6. Allegations
of fraud and graft in supplying the
Bureau of Engraving and Printing with
black dry-color used in the manufac
ture of ink resulted today in the indict
ment by the Federal grand Jury here of
Edwin M. Van Dyck, formerly a chem
ist and ink-maker employed in the
bureau, had to pass upon the samples
the Victor Bloode Company, of Balti
more, manufacturers of black dry color.
Van Dyck, It Is alleged. In his posi
tion as chemist and ink-maker of the
bureau had to pass upon the samples
of the color submitted by various man
ufacturers. It is charged that he
fraudulently favored the Baltimore
company, and that as a result of the
conspiracy he was paid by Bloode in
the course of several years between
170,000 and 175,000.
Receiver for Third-Avenue Dine.
NEW YORK, Jan. 6. On the appli-
. i n9 " t-i.-Tui.-a renrf qpntin f the
holders of $25,030,000 worth of bonds
of Third Avenue Jttaiiway company.
Judge Lacbmbe. In the United States
District Court, appointed Frederick W.
Whiteridge, secretary of that corpora
tion, as receiver.
CONTENTS TODAY'S PAPER
The Weather.
lESTERDAT'S Maximum temperature, 62
degrees; minimum, 36.
TODAY'S Occasional rain; southsrly winds.
Foreign.
Perjury charge to Druce case dropped, but
civil suit for Portland dukedom con
tinued. Page 2.
National.
Ballroad employers' liability law declared
invalid. Pin l.
Secretary Taft urges more pay for Army.
Page 4.
Interstate Commerce Commission says rail
roads submit to rate law. rage a.
Government will compel Senator Owen to
reetore Indian land, fage a.
Politics.
Bryan speaks at Omaha on moral Issue In
campaign ana praises nwjMjvwi. rogo -
Domestic. '
Nine probationary Jurors secured in Thaw
trial. Page 1.
Supreme Court grants J.. N. Williamson new
trial. Face i.
Seven men drowned by capsizing of boat
Page 2.
Missing steamer Mount Royal sighted on
Atlantic and relief sent. fase n.
Sport.
George Dixon, colored pugilist, dies. Page 4.
Pacific Coast.
Brown and Bartnett expected to plead
guilty. Page 2.
Seattle political parties torn asunder by
. bitter factional strife. Page
Tillamook short of supplies because of in
adequate freight service from Astoria.
Page 6.
Seattle laborers threaten death to "scab"
workmen. Page 5.
Commercial and Marine.
Local produce trade satisfactory. Page 15.
Chicago wheat market barely steady.
Page 15.
Wide advance in stock prices. Page IS.
Shipping interests object to the granting of
a boarding-house license to yott broth
ers. Page 7.
Portland and Vicinity.
Ladd offers substitute agreement with de
positors of Title Bank. Page 10.
Busiest day In history of State Circuit
Court for Multnomah County. Page lL
Officers of Title Guarantee ft Trust Company
indicted. Page 10.
Directors are being selected for reorganized
German-American Bank. Page lo.
Evidence being collected for beginning of
land-fraud trials Monday. Page 14.
Japanese Vice-Consul discredits report that
his -oountrymen are returning to Orient.
Page 7.
Chin. man aaxrotted and robbed. Page 4.
TO
IB SECRETS
Claus Spreckels After
Sugar Trust.
ALLEGES TOO HIGH VALUES
Says Misrepresentations Have
Been Made.
DENIES THERE IS SURPLUS
In Report to State of Massachusetts
the Trust Claims Large Surplus
Which Spreckels Says
Does Xot Exist-
NEW .YORK. Jan. (.(Special.) Claus
A: Spreckels, son of the sugar renner,
who for many years waged a trade war
against the American Sugar Refining
Company, has taken up arms against the
present management of the sugar trust In
an effort to .lit the veil of corporate se
crecy which the late president of the com
pany, H. O. Havemeyer, stoutly main
tained against the demand of all the
stockholders.
The annual meeting of the American
Sugar Refining Company takes place
Wednesday In Jersey City and at this
meeting it Is expected that Mr.
Spreckels will demand information as
to the investments and assets of the
company, which has never been fur
nished. Wanted More Information.
Mr. Spreckels' determination to And out
in what condition the late H. O. Have
meyer left the American Sugar Refining
Company originated with a conference
which he had on Friday last with C. R.
Heike, the secretary of the American
Company. Mr. Spreckels described this
conference as highly unsatisfactory. He
gained access to the list of stockholders
and dragged other Information out of the
reluctant secretary. In relating tonight
what he discovered, Mr. Spreckels stated
that Mr. Havemeyer and other directors
were the owners of very few shares of
stock and that a dozen dismantled plants.
Including the American Sugar Refinery,
at San Francisco, are included in the
assets of the company and valued at ab
surdly high 'figures.
Says There Is No Surplus.
Mr. Spreckels also ascertained that
the sugar trust did not own a dollar's
worth of stock in the American Beet
Sugar Refining Company, and was un
able to learn whether the company
owned stock In the National Sugar Re
fining Company, of which James H.
Post Is the acting head. It has been
supposed that the control of these com
panies was vested with the Havemeyer
sugar trust.
In its recent report to Massachusetts,
the only state in which the American
Sugar Refining Company makes a re
port, the surplus of the company is
given at . $14,425,000. ' Mr. Spreckels
says .the company has no surplus and
that half a dozen dismantled plants
that are no longer producing sugar
were Included in it. , .
DIAMOND FIRMS ON ROCKS
Four Largest Dealers Give Up Be
cause Sales Decrease.
NEW YORK, Jan. 6. The affairs of
four large diamond and Jewelry firms,
Joseph Frankel's Sons, Joseph Frankel's
Sons Company, K. M. Cattle A Co. and
Gattle & Hammell, were placed in the
hands of liquidating trustees today to
conserve the interests of their creditors.
The gross liabilities of the four firms are
said to be about $4,500,000 and the gross
assets are valued at $6,250,000.
Readjustment of the affairs of the com- '
panies was brought about by the un
precedented failllng off of the sales of
high-priced gems.
FAVORS LOCAL OPTION LAW
Governor Harris' Message' Read to
Ohio Legislature.
COLUMBUS. O.. Jan. . The message
of Governor Harris was read to the Leg
islature this afternoon. The Governor
urges the enactment -of a bill providing
for general primary elections with the
Australian ballot system; placing of tele
phone companies under supervision of the
State Railroad Commission, with power
to regulate rates, and commends to the
favorable consideration of the Assembly
the adoption of county local option, as a
means of dealing with the liquor traffic.
FROM JAPAN TO PORTLAND
Toklo Paper Announces Steamship
Line Will Be Established.
VICTORIA, B. C, Jan. 6. According to
advices by the steamship Empress of
China today, a leading paper of Tokld
says the Osaka Shoshen Kayasha is pre
paring to open a steamship line between
Portland, Or., and Japan and China.
Ask for Powers' Pardon.
GEORGETOWN. Ky.. Jan. . Citizen!
of Georgetown, Irrespective of party, ar
preparing an address to the people ol
Kentucky, calling on Governor Willson t
pardon Caleb Powers.
KNOW