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About Morning Oregonian. (Portland, Or.) 1861-1937 | View This Issue
THE 3IORXIXG- OKEGOXIAX, TUESDAY, 3IAY 3, 1921 "
NEWBERRY IS VICTOR
IH SUPREME COUR
Corrupt Election Conviction
Is Set Aside.
ACT IS HELD ILLEGA
Kiglit of Congress to Supervise All
Eloclions Is Challenged; Lower
Court Error Alleged.
(Continued From First Page.)
direct election amendment had not
affected section 4. article 1, of the
constitution, which, the majority
opinion said, while it gave congress
the power to regulate the manner of
holding elections, did not confer o
it authority to control pajty prima
ries or conventions.
Domestic affairs of the states would
be interfered with if congress, un
der existing: laws, was held to hav
control over the . primaries, th
opinion stated. It was pointed ou
also that inasmuch as states 'may
suppress whatever evils may be in
cklent to primary or convention," and
e:ich house of congress has the power
to judge elections, qualifications and
returns of its own members, and
inasmuch as congress has authority
to regulate the time, places and man
rier of holding elections, "the na
tional government is not withou
power to protect itself against cor
rtiption. fraud and other malign in
White Favors Reversal.
Chief Justice White, in his dissent
Ins opinion, said he favored reversal
of Judgment, obtained in the lower
courts against Senator Newberry and
16 others, without prejudice to a new
trial, "because of the grave misap
prehension and grievous misapplica
tion of the statute on which the con
viction and sentence were based."
The chief justice predicted that
legislation would be enacted to give
congress power over primaries, otn
erwise, he said, "government cannot
live." The proposition that the power
of states solely to control primaries
is not affected by the right of con
gress to regulate elections waa re
ferred to as "suicidal" by the chief
justice, who declared that instances
in which the primary has become the
controlling feature of elections "the
election is still-born and the vote
without power or weight."
Dissenting Opinion Given.
"The influence of who is nominated
for elective office," his opinion said,
"upon the result of the election to fill
that office is so known of all men
that the proposition may be left to
destroy itself by its own statement.'
The dissenting opinion of Justice
Pitney, concurred in by Justices Bran
deis and Clark, said it would be
tragic if that provision of the consti
tution which has proved the sure de
fense of every outpost of national
pbwer should fail the very foundation
of the citadel.
Justice Pitney declared as untenable
the contention that congress could
not have power over primaries.
Commenting on the importam of
exercising vigilance over the conduct
of primaries. Justice Pitney said "sin
ister influences exerted upon the pri
maries inevitably have their effect
upon the- ultimate election are em
ployed for no other reason.
Lower Court Held In Error.
Justice AIcReynolds said the lower
court had overruled "a duly inter
posed demurrer which challenged the
constitutionality of section 8 and by
o doing we think fell into error.
"Manifestly," the majority opinion
said, "this section applies not only to
final elections for choosing senators,
but also to primaries and conventions
of political parties. Michigan and
many other states undertake to con
trol these primaries by statutes. And
the , ultimate question for solution
here is whether congress may fix a
minimum which a candidate may
spend or advise or cause to be con
tributed and spent by others to se
cure his nomination.
Argument Held Unsupported.
"We find no support : in reason or
authority for the argument that be
cause the ottices were created by the
constitution congress has some in
definite, undefined power over elec
tions for senators and representatives
not derived from section four."
Continuing, the majority opinion
'The 17th amendment, which directs
that senators be chosen by the people,
neither pronounced nor requires a
new meaning of 'election.' and the
word now has the same general sig
nificance as it did when the constitu
tion came into existence final choice
of an officer by the duly qualified
electors, primaries were then but
merely methods by which party ad
herents agreed on candidates. Gen
eral provisions touching elections in
constitutions or statutes are not
necessarily applicable to primaries
the two things are radically differ
ent." Misconstruction la Alleged.
"The case is here by direct appeal
because of the contention that pri
maries of that character are not sub
ject to the regulating power of con
gress," Chief Justice White said, "and
as an incident there is involved the
contention that even if the act of!
congress was constitutional, 'it had?
been prejudicially misconstrued.
"Sustaining the first of these two
contentions, and therefore deciding
the act unconstitutional, the court
reverses and finally disposes of this
"Although I am unable to concur la
the conclusiqn as to the want of
power of congress, and in the judg
ment of reversal as rendered. I am
nevertheless of the opinion that there
should be a judgment of reversal
without prejudice to a new trial be
cause of the grave misapprehension
and grievous misapplication of the
statute on which the conviction and
sentence was based.
Proposition Held SaicldnL
"It is said that, as the power which
is challenged here is the right of a
state to provide for and regulate a
primary for nominating senators free
from the control of congress, and not
the election of such senators, there
fore as the nominating primary is
one thing and the election another,
the power of the state as to the pri
mary is not governed by the right of
congress to regulate the 'times and
manner of electing senators.
Cut the proposition is a suicidal
one, since it retains in the state the
only power it could possibly have as
delegated by the (constitutional)
clause in question and refuses to give
effect to the regulating control which
the clause confers on congress as to
that very power.
In the last analysis, the contention
must rest on the proposition .mat
there is sucn absolute want of rela
tion between the power of govern
ment to regulate the right of the citi
zen to seek a nomination for public
office and its authority to regulate-
the election after nom,nation,' that a
paramount government authority hav
ing the right to regulate the latter is
without power as to the former," :
Infirmity Opinions Differ. .
Associate Justice Pitney, who sub
mitted tue opinion indorsed by Jus
tices Br.u.dcis and Clark, dissented
from thi majority as to the "consti
tutional infirmity" of the statute.
"It W'juld be tragic," he declared,
if that provision of the constitution
wl ich has proved the sure: defense of
every ou'posi of national '. power
Congress in Earnest, Asserts
MR. MONO-ELL CONFIDENT
.Lawmakers Refrain From Pressing
Legislation Out of Considera
" tion tor President Harding.
should fail to safeguard the .very
foundation oc the citadel. ' -
"If I am wrong and the power to
egulate primary elections couid be
deemed to have been reserved to the
states, the result would be to leave
the general government destitute of
the means to insure its own preserva-
ion without governmental aid from
the states. This would render the
government of the United States less
than supreme in the exercise of Its
The contention that congress could
not have been given power over pri
maries, srince they were unknown
wben the constitution was adopted,
was dismissed by Mr. Pitney as un
"I am unable to see," lie declared.
how in right reason it can be, held
that one of the houses of congress
may exclude an elected member, for
securing by bribery his nomination in
he primary if the regulation by law
of his conduct at the primary is be-
ond the constitutional power of con
Moreover, the power of each
ouse. even if rightfully applied to
exclude a member in- the case sug
gested, is not a check upon bribery,
corruption and other irregularities n
the primary elections. It can impose
o penal penalties upon the offender.
and when affirmatively exercised it
eeves the constituency for the tima
without proper representation.'"
MULATTO BABE IN . CASE
(Continued From First Page.)
eriously. When he identified the
picture of Mrs. Stokes and the baby
e said, with a short laugh:
"Mrs. Johnson said that was the
picture of Mrs. Stokes. The baby Is
colored baby. Mrs. Stokes is the
mother of that baby."
Mr. Sandler was certain Mr. Stokes
id not promise to retain him in the
divorce action, although he knew this
as contemplated, lie assured the
court he paid little attention to the
eap of photographs offered him. but
led them away as a matter of
routine and later returned them.
Trial of the negro was delayed at
the request of Mrs. Stokes' counsel,
Mr. Sandler said. He was informed
Mrs. Stokes desired to finish her di-
orce suit first. In any case, the
uestions were not read until today
nd, although they seemed to enrage
Mrs. Stokes, they did not embarrass
An untried indictment still
hangs over the negro, a reason given
by Mr. Sandler for his reluctance.
Visit to Mrs. Stokes Denied.
Practically concluding its case, the
efense began today s session by sum
oninj; out of his past obscurity the
tall, dark young man," Elliot Brown,
chum of Victor inner, Mrs. Stokes'
stepbrother. Mr. Brown is not no
ticeably tall, not noticeably .dark, al
though his hair is black.
He refuted testimony that he en
tered Mrs. Stokes' room in the V est
Seventy-eighth street home. He had
frequent! visited his chum, he testi
fied, but had known Mrs. Stokes only
With his appearance all or the
amed living co-respondents have en
tered their denials cf the tales of in-
macy. Mr. Roosevelt is dead. Tes
monv against him included a charge.
mbodied in the questionnaire, that
painted a nude of Mrs. Stokes
smoking a cigarette. Mrs. Stokes has
If no delays are caused by Mr.
Stokes' illness the trial will be com
pleted "Wednesday. Justice Finch an
nounced shortly before adjournment.
The ordeal of the weeks of litiga
tion showed plainly in the lines of
Mrs. Stokes' faca today. Throughout
he day she seemed nervous and ill
ease, although she made frequent
ttempts to smile.
S. & H. green stamps for cash.
Ilolman Fuel Co., coal and wood.. Main
3. 660-21. Adv.
THE LOS ANGELES
, WALTER HENRI ROTHWELL, CONDUCTOR
The Supreme Musical Organization
. of the West 75 of the World's
SEAT SALE SHERMAN & CLAY'S
Prices: $2, $1.50, $1, 75c NO WAR TAX
SirtkwMtin Bookings Dlmtloa of Eiwyn Concert Birrio.
BT MARK SULLIVAN.
(Copyright by the New Tork Evening Post,
inc. - V uDllsliea Dy Arrangement, j
WASHINGTON, D. C, May 2. (Spe
cial.) The most unmistakable mani
festation of a vital and widespread
sentiment that has appeared in the
present congress is the determination
to move toward international dis
It is not too much to say that
nothing except consideration for
President Harding and the fear of
embarrassing him prevented the house
last week from taking formidable
action in -the direction of disarma
ment by our own and other nations.
in attempting to get tne naval ap
prppriatidn bill through, the repub
lican leader of the house, Mr. Mondell,
was compelled in substance to ap
peal to the house to pass the bill for
the present and in effect, gave tne
house his promise that within the
reasonably near future President
Harding would take the necessary
steps leading, to disarmament which
Mr. Mondell's language was whole
hearted. He said:
"We all know there is a general
sentiment in the country in favor of
a reduction of armament. There is a
general I may say practically unani
mous sentiment in this house favor
able to consideration by an interna
tional conference of the questions
relating to and looking toward the
reduction of the burdens of war and
Time ' Is Believed Ripe.
"I am hopeful that in the near
future I trust, during this session of
congress those who are directly
charged with responsibility in the
matter of our foreign relations will
find that the .time is ripe and op
portune ; for the successful accom
plishment of the purposes of those
who desire a lightening of military
burdens. This should be done, and I
have no doubt that it will be done,
when the conditions of our foreign
relationship are such that we can
do it without misunderstanding of our
motives and with the greatest assur
ance of a successful outcome."
It was only Leader Mondell's as
surance that kept his own party in
Hne in support of the naval appro
priation bill. One of those republicans
who came nearest to. breaking away
from party reservations put in point
ed words' exactly the reason why con
gress passed the naval appropriation
bill. He said:
"Republican Leader Mondell yepfr-
dSy made a frank;- candid statement
to the house and to the country that
President Harding Is in sympathy
with. the programme of disaxmamen
of nations and that ha will try to in
it-iate that programme at an early
day, possibly during the present ses
sion,. after world conditions have be
.come more -aearlv mormal. . -The state
ment is reassuring,-" for r'O ituember of
"congress, irrespective-of politics, wii
wUlinIv vote to embarrass the ores
ident on a -vital question in world af
fairs, nor can any man fail to recog
nixe the tremendous problems which
must be solved by him alone.'
Tvro Motives Operating.
The- clear; fact is that in the lower
house of congress, as distinguished
from the senate, there are two mo
tives stronger- than any others. The
first: motive is one iof helpfulness to
ward President Harding. They real
izs the difficulties of his problems.
they sympathize with the sincerity of
his -spirit in trying to solve those
'problems and they are unwilling to
The next strongest motive in the
minds of the members of the lower
house is the clear and trenchant de
termination to bring about disarma
ment among the nations. Because of
the first motive and because of that
alone they have for the momen,t put
the second motive in abeyance. X ney
have passed navy and arrfly appro
priations bills., but in doing. so they
regard-President Harding as having
given them' a promissory note to
bring about disarmament among, the
nations in the near future and noth
ing ran he more certain about the
temper of congress than that in due
course it will insist upon the payment
of that note.
DTXJXG CAR EMPLOYES PRO
TEST WAGE REDUCTIONS.
. - ; . &
General Manager's Canned Tongue,
Ox Tail "Diet Appreciated, But
Pay Held at Minimum..
CHICAGO.' May 2. A listless day of
statistical, objections to wage reduc
tions sought by nearly 100 railroads
before, the railroad labor board was
brought to a climax today wltn a
humorous broadside from dining car
employes on the New York, rew
Haven & &HaKford. R. B. Lomus, a
waiter, pleaded that wages were al
ready at trie irreducible minimum and
protested against further reductions.
'I can appreciate what tne position
of the general manager must be, met
aphorically speaking, subsisting on
diet of. canned tongue and oxtan
soup to make ends meet," ne saio.
"paying out a dollar and a dime for
every dollar the treasurer can hold
out for him. We should like to help
him. But it is our conviction that
the present pay of cooks and waiters
is at the irreducible minimum. To go
below this minimum would, I be
lieve, destroy that morale without
which public health would not be
"My weekly pay is $15.01." he con
tinued. He deplored the low wages
paid chefs and cooks, who, he said,
received as low as- S65 a month.
We specialize on
best materials and
service for break
fast, lunch and
dinner "when you
Bank Call Issued.
SALEM, Or., May 2. (Special.)
Frank Bramwell, state superintendent
of banks, today issued a call for re
ports as to the condition of all state
bankp in Oregon at the close of busi
ness on April 28. This call was based
on the federal order demanding sim
lar reports with relation to national
banks operating in Oregon.
IAI.ADIAN STRIKES FEW
Masons and Printers Arc Out, But
Xo Trouble Experienced.
WINNIPEG. Man., May 2. May
day found labor conditions in western
Canada fairly well settled, with the
exception of a strike of stone masons
affecting 7 men here, wno want an
ncrease of 2a per cent In wages, ino
trouble was experienced here.
In Moosejaw, Saskatchewan, build
ing tradesmen have asked for the rc
tention of last year's schedules, while
the Building Trades association offers
a cut ranging from 10 to la per cent
Saskatoon, Regina and Calgary re
ported normal conditions. Vancouver
reported a strike oi 74) joo printers,
who demand a 44-hour week.
Read The Oregonian classified ads
THE light from the furnace fire strucK a mighty blow with a heavy
flickers on the intent faces of sledge. The coin is "struck!"
theslaves. It catches the gleam of the Vhus slowly'"' and laboriously was
soldier's spear as he paces to and fro. monc7 eoined in thg time -0f rf
Creak-k! Creakk! Says the clumsy great Persian king, Darius.
old wooden machine ass - the ' Todzy coins iTC:minted ia huge
comes fqrth in a shining strand. electrically driven machines at the
Snip-p! Snipp! Go the shears as the rate of several thousand an hour
slave cuts the metalinto shorter under pressure of 175 tons!
lengths and tosses them into the fire. The history of all baAking orfinancc
Then he takes a piece of silver from shows a similar astonishing progress,
the furnace with a long pair of , Tf has been our ide tQ k
pincers and lays it upon the nearby modem h and nsion
anvil. . This anvil contains the die of banki scrvice If you are not
making -the obverse of the coin. fully familiar with thc completeness
With never failing skill, a small of our facilities, ask for our booklet,
hammer containing the reverse of "The First National Bank West of
the coin is applied and the whole the Rockies." "I
THE FIRST NATIOWbANR
OF PORTLAND OREGON
-THE FIRST NATIONAL BANK WEST'
OF THE ROCKY FOUNTAINS .
The Master Instrument
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In five minutes yo
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Newbr wmlnut or oak.
Steel and jewel needle!
two reproducer. Com
partoienr q g
lor album. 4 1 0 3
Mahoganv, walnut or
oak. Cold plated
metal part. Steel and
Jewel needles; two
balance cover sup
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Mahofntr or walnut.
Cold plated metal
pert. Steel and fcwrl
. needles; two repro
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cover supports; eight
The Cheney Grows
Sweeter With Age
Just as a rare old Stradivarius violin
grows sweeter with passing years, so does
The Cheney add to its tone quality with
time. It is a most remarkable feature a
characteristic which has made The Cheney
Features found in no other phonograph
The famous "violin resonator" and
"orchestral chambers" which give The
Cheney this invaluable quality are exclu
sive features, found in no other phonograph.
Six other features which make this Cheney all
you could wish in a Phonograph and more
1. Artistic cabinet which add charm to
2. Twelve distinct Tolumet of tone.
3. Perfect tone control, avoiding blast"
on high, loud note.
4. Practically eliminates needle scratch,
. 5. Automatic stop on all models.
6. Plays all record.
This beautiful Sheraton period model is an artistic
addition to the home furnishings, a constantly in
creasing source of satisfaction. You can select it in
Biltmore mahogany, fumed or golden oak, all at
the same price. It is equipped with 6teel and jewel
needles, two reproducers for playing all records,
automatic stop, and five shelves for record albums.
You can buy this beautiful Cheney on con
Cheney Regular Models, $ 125 to $385 .
CHENEY TALKING MACHINE COMPANY
Caieasa aa tw Vark,
G. F. Johnson Piano
147-149 Sixth St, Portland, Oregon
CHENEY PHONOGRAPH COMPAN Y '
DUtrihatvn, 212 Sellina; Bids;., fortlaad. Oregros
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vv X ,1 Deep-Carve Lensea 3
iv a.v nruir Kir
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skilled workmer- to con
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Complete Lena Grladlns;
Factory oa the Premises
SAVE YOUR EYES
Choa. A. Rusco, Pres. and
, Gen. Mgr.
Portland's Largest, Most
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ZOS-lO-ll CORBBTT Bl.DC
FIFTH AND MORRISO.X
cjr a a & a
Evils of Constipation.
Perhaps the most serious of the dis
eases caused by constipation is appen
dicitis. If you would avoid this dan
gerous disease keep your bowels regu
lar. For this purpose jnamreriain s
Tablets are excellent, easy to take and
mild and gentle in effect. Adv.
NO HIE HE SAYS
Seattle Man, in Bad Shape for
Many Years, Declares He's En
tirely Over His Troubles.
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in my life than I do riffht now and it
is Tanlac and nothing else that has
fixed me up in such fine shape." said
Wm. H. Whiteman of 115 Fourth ave
nue North. Seattle, recently. Mr.
Whiteman has been in the emptor of
the city since 1907 and is now con
nected with the health department.
"For a good many years 1 had been
bothered with rheumatism and at
times It nearly knocked me out. My
legs would ache and pain me so I
could hardly stand on my feet and
the muscles would all get sore and
stiff. My arms and shoulders hurt
terribly sometimes and my back was
weak and lame and, in fact, I ached
"My stomach got out of order and
my appetite went back on me. Noth
ing seemed to set well with tne and
at times I became so nauseated I
couldn't keep down a thing I ate. I
had headaches a lot and got so nerv
ous I was afraid to drive an automo
bile. I slept poorly, fell off in weight
and my condition worried me not a
"Well, sir. If anybody had told me
Tanlac would fix me up like it has I
wouldn't have believed a word of It.
but it's a fact, five bottles have put
me back in as good health as I ever
enjoyed. I haven't a pain anywhere
about me, eat whatever I please and
sleep fine. In fact. I'm In tip-top
shape and every time I get the chance
now I slip in a good word for Tanlac."
Tanlac is sold in Portland by th
Owl Drug Co. and all leading drug
Established Zl Teats la PortUn!
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rugs er narcotics oi any d
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THE C GEE WO CHINESE
182V4 First 8U Portland. Oregei
INGROWN TOE NAIL
TURNS OUT ITSELF
Phone your want ads to The Ore
gonian. Mln T CIO, Automatic 560-95. lioos. Adv.
A noted authority savs that a fd
dropa of "Outgro" upon the akin sul
rounding the ingrowing nail raduc
Inflammation and pain and ao toug
ana the tender, sensitive akin und
Death the toa nail that it can r.
penetrate tha flesh, and the nail tur
naturally outward almost over nisi
"Outgro" ta a barmlesa antisrp
manufactured for chiropodists. Bo
aver, anyone can buy from tha dr
store a tiny boltla containing dlrei