The Sunday Oregonian., November 08, 1908, SECTION FOUR, Page 8, Image 44

THE SUNDAY OHEGOXIAX, PORTLAND, NOVEMBER S, 1903.
OEGISIOfJ AFFECTS
VOTERS DFOREGON
Pre-election Pledge in North
Dakota Similar to That in
This State.
HELD NOT CONSTITUTIONAL
Supreme Court of That State Say
Promise of Legislators to Vote
for Popnlaw Choice of Senator
Cannot Be Binding.
The decision of the North Dakot
JKlalsture for United State Senator
th- popular choice of the people is in
valid ana not binding- U of particular
interest, to me eieciora ui jrcKu.a,
where essentially the same constltu
passed on by the State Supreme Court
nouia ma vaiiuixy on piiomcui
This decision by the North Dakota
court was rendered In disposing- 01
proceeding brought in the courts t
.train tha iwtnr f mm ex Dress in
their choice for Vnited States Senator
in the jreneraJ election in that state
which m-as held November 3. in rerusim
to restrain the people from express. n(
their choice for Senator, the court dls
cusses at considerable length that pro
vision of the law which requires can
JKKm fmm - j T J r1 1 1 111 frt nbllaTRtt
themselves by a pledge to support for
Kanttnr that candidate receiving in
.itw nnin Ko T r nnnillar vntel. Th
his
feature of the law Is unqualifiedly pro
yiounced unconstitutional and post
tirely of no binding effect on the Leg
lslator assuming the obligation.
Legislators Relieved of Pledge.
It Is held by the North Dakota court
that the electors of that state under
the provisions of their primary li
fcave the right to vote in the general
election for their choice for Senator,
but the pre-election pledge, compelling
legislative candidates to support the
popular choice for Senator is declared
Inoperative and of no effect. The court
holds that Legislators who took the
pledge are relieved from living up to
it and are privileged to support for
Senator their personal choice, regard
less of tlia vote of the people, which is
regarded legally as only a suggestion
from the electors as to their prefer
ence. This provision of the North Dakota
primary law was attacked on the
ground that. In requiring legislative
candidates to take and subscribe to an
oath to support the Senatorial candi
date receiving the highest number of
votos in the general election. It vio
lated the conatttutlon of the state In
that It added another oath, declaration
und tent as a qualification for office.
In rendering Its decision the court
concurs in that contention, and says
that the provisions of the law permit-
tins: the people to designate their
choice for Senator does not amount to
an election by the people of their
T'nlted States Senator; hence, they do
rot contravene the provisions of the
Federal Constitution, wh tch provides
for the election of United States Sena
tors by the State Legislatures, but if
they do violate such constitutional
provision, the complainant In the case
at bar was powerless to complain, for
the rion that no constitutional right
of the citizen had hem violated. The
controversy not be':;- judicial one,
the United State . lt is the
proper tribunal to lt ,e the ques
tion. hoMds the court.
In assuming the pre-election pledge to
support the popular choice for United
States Senator, the North Dakota court
holds that the candidate for the legis
lature obligates himself to discharge cer
tain of his public duties In a certain way.
iSy such a pledge, says the court, the can
didate divests himself of all discretion ed
freedom, of action In the discharge of his
official duties If elected. Tills not only
hampers the candidate aasuming the ob
ligation, avers the court, but restricts
other persons from becoming candidates
(or legislative office. It la held to be no
answer to the charge that this provision
of the North Dakota law Is unconstitu
tional to say that the pledge merely Im
poses a moral obligation which would rest
on the candidate subscribing to the same
In the absence of a statute on the subject.
fThat such would not be true is contended
from the fact that in many cases the can
didate would decline voluntarily to make
such a pledge to his constituents.
Indorsement Is Petition In Effect.
It is not contended, says the opinion,
that the provision of the law permitting
he voters of each political party merely
to designate their choice for Senator
kimounts to an election of Senator. This
proceeding, maintains the court, is of no
snore consequence than the right or pen
sion which cannot be denied the people.
3t simply provides a convenient method
tfor exercising the constitutional right of
petition. It was further held by the court
that it had no jurisdiction to pass on the
constitutionality of the election of Sena
tor under the provisions of a primary
law enacted by the voters of the state
ince the Federal Constitution provides
that each branch of Congress shall be the
3udd of the elections, .returns and quall
tf Krationa. of Its own members. The ques-t:-n
of whether a Senator has been elect
ed in the constitutional way is not a Judi
cial" question for the courts to decide,
inserts the North Dakota court, but It Is
r question which rests entirely with the
Vnited States Senate Itself.
"If this court should decide that the
provisions of the statute in question are
ronstltutional." continues the opinion.
'such decision would in no manner be
controlling and the Senate could say that
sl person elected by our Legislature at the
coming seeslon was not legally elected
and could refuse him a seat. The ques
tion Is a Federal one exclusively and the
tribunal to determine the same Is desig
nated in the Federal Constitution to be
the United States Senate
Justice Spalding filed a dissenting opin
ion in which he concurred with his asso
ciates In their interpretation of the North
!&kota primary law and the unconstitu
tionality of the pre-election pledge. He
went farther, however, and held that the
law was also unconstitutional for the rea
son that it provided that the popular elec
tion for Senator and the general election
vhould be held at the same time and
place. Justice Spalding maintained that
tne legislature erred In not providing for
two separate elections.
A copy of the North Dakota decision
reached Portland yesterday. By reason of
the general interest In the action of the
Bupreme Court of that state, the decision
is printed in full herewith:
Text of the Decision.
Fislc. J. . The relator, who Is s qua II fled
lvtor of Hettinger County, makes appli
cation to this court In the name of the
p;at for the Issuance of a prarogatlv writ
to enjoin the defendant, as Secretary of
Ftate. from certifying to the various
kvuduocs she Aarass at oertalav persons as ,
candidates for the office of United States
Senator from this state for the purpose
of avln- such o,ames printed on ballots to
ta Issued at the ensuing general election,
to determine the choice of the Republican
Jectors as between such candidates.
Helator prays that If such names have
already been thus certified dt aerenaam
that he be required and commanded to can
cel such certificate.
In his affldartt upon which the applies.
tlon la aLei. relator avers that he re
quested the Attorney -General to make ap
plication for such writ, but he refused.
Upon the nlin of relator's said affidavit,
an order to show cause was Issued re-
niilpln L.ni1int tn ihoW CAUSC. if any
there be. on October 2i. 190. why the
writ craved for should not lesie. Vjxm
the return day of such order to show cause
defendant filed a motion to qu"
order and to dismiss the proceedings on
specified ajrounds. only three of which it
will be necessary to notice.
First It Is defendant's contention mat
"no question of public right or one af-
fectlns; the sovereignty 01 ,7: "
k nrwmcativn. or the liberty
of the people." is presented or involved by
relators application.
Second That the affidavit upon which
said order to show cause was imueu ui
A,m.ir.i diiritMca that the relator h&i
int.rMt in the subject matter
of the proceed ins- or the determination of
the questions sourni to oe aujuuiuuru .
enable him to Institute or carry on same
as plaintiff; and.
Third That It affirmatively appears from
said affidavit that plaintiff has been guilty
of laches In makina ths application, and
hence. Is not entitled to the equitable re
lief p raved for.
Answering briefly these contentions we
decide that th first and second points are
not tenable. The questions involved clearly
are public Juris and some of them at least
pertain mrecuy to """IU -
.r.r its franchises and prerogatives, and
th lihertv of the people, and the relator.
being a cltlen. may Institute and prosecute
the proceedings, when, as in this case, hs
has requestea sucn prowrumjB "
tituted by the Attorney-General and the
latter has refused sucn request.
The third around of tb motion to quash
the order to show cause pertains more
properly to the merits, but. however this
may be. we are clear that relator Is guilty
of gross James in maxinsj m
stnrf w mlrht well rffllM the Writ SOlely
upon this ground. However, on account of
tha arrest lmDortanoe of the public ques
tion Involved, we have concluded to Ignore
or overlook plain tin s lacnes ana n rwi
our decision upon the more vital questions
pertaining dlnectly to the merits.
Relator relies, for his right to the equit
able relief sought by him, upon the follow
ing three propositions:
I-tedge Outside Oath.
First "The law In question." (Chapter
10s. Laws of 1907, "and all parts thereof
dealing or attempting to deal wttn tne se
lection of a party candidate for the office
of United States senator, is voia ana un
constitutional In that it requires of each
candidate for the Legislative assembly that
he shall take and subscribe an oath to a
pledge which add to the qualifications of
a candidate ana oi an elector, omer man
those required by the constitution of the
star.
Second "The act In question deals with
the general election laws providing for
the submission of a certain form of ballot
at such general elections, and contains a
subect not Included within the title of
said act. nor considered In connection with
the real object of the act.
Third "The Legislature cannot provide
for any action by the electors or the people
of the state upon the subject of nomina
tion or selection of members of the United
States ?anate."
We ahall assume for the purpose or tnis
case that If these contentions are sound,
the writ should issue, although we confess
our Inability to understand Just how trws
writ prayed for, can. If Issued, operate to
undo what has already been done by de
fendant pursuant to this law. The can
didates for the Legislature have long- since
taken oath, and made or given the pledge
exacted of them by sections 1 and 4 of the
act. Such pledge, at the most, merely
created a moral obligation to fulfill the
same. If the law under which the pledge
waa exacted Is held void, the moral obli
gation will still continue, and no Judg
ment of a court can obliterate it. It would
seem that courts do not and cannot deal
with mere moral obligations as dis
tinguished from legal obligations. Their
functions are restricted to the latter. But.
however this may be. w. shall assume for
the purpose of this case, that relator's
counsel are correct . to the remedy In
voked, and we will proceed to consider
the correctness of the contentions upon
hlch relator bases bis right to such
remedy.
It faf broadly asserted that chapter nw
aforesaid, which Is known as the primary
election law, is unconstitutional and void, in
so far as It relates to the nomination cf. or
permits! an expression by the people of their
choice of, a candidate for the United States
Senate. To this extent only le the vall-l.iy
of the law challenged. It la urged, first, that
th" law Is invalid and unconmituti"n4i in
that It reaulrea of legislative members an
additional oath, test and declaration to that
fixed hy tne constitution oi me state, sec
tion 2U. Said section Is as follows: "M?m
bera of the Legislative Assembly and Judicial
departments, ex cent such inferior officers as
may be by law exempted, shall, before they
enter on the duties of their respective of
fices, take and subscribe the following oath
or affirmation: 'I do solemnly swear for
affirm as the case may be) that I will sup
port the constitution of the State of North
Dakota; and that I wit! faithfully djecharge
the duties of the office of
according to the best of my ability, so help
me. God (If under oath), (under pain and
penalty of perjury. If an affirmation), and
no other oath, declaration or test shall be
required a a qualification for any office of
public trust."
Section S of the act In question requires
the candidate for the office of member of the
Ierlslature to file a petition to which shall
be attached the following oath: "I
being duly sworn, depose and
say that I reside in the County of
and Ftate of North Dakota; that I am a
qualified voter therein and a ;
that I em a candidal for nomination of the
office of to chosen
at the primary election to oe nem on
190... and I do here
by request that my name be printed upon the
primary election ballot as provided by law
as .a candidate of the party
of said office.
Pledge Required of Candidate.
Section 4 of said act also requires such
candidate to give the following pledge: "I,
the undersigned, a candidate for the office of
member of the Legislative Assembly of the
State of North Dakota, do obligate myself
to the peoplt of the State of North Dakota
and to the people of my legislative tllstrlct
that durlna- dit term of office I will support
and vote for that candidate for United State.
Senator in Co ogress of the party in wnicn
I am a member who has received a majo-ity
of such party yotea for that po4uton at the
primary election next preceding the election
of the United States Senator In Congress;
provided, that In case no candidate of my
party receives 40 per cent of aH the vote
cast for the office of United State Senator
of my party, then and in that ca-e I pi -his e
mvalf to vote for the candidate ot my prty
who receive, the highest number of votes cf
mv party at the general election succen'iig
suh primary election."
If the provisions of said act requiring soi l
oath and pledge conflict with section 211 cf
tre constitution or tnm state, tnen, ot Tourva,
those portions of the act are njll and void.
We think It olaln that they do thus cuifll.-t.
at they add another oath, dec 1 am Hon J nd
test a a quajincation tor tne on ice. iie
tendency of such provision Is to de er, ham
per and Interfere with, not only persona n
becoming candidates for members cf the Ls
Uiature. but with the electors la aomlna ing
such candidates, and to this extent a:d pio
viskns Interfere with the free cxe.-ciee of the
elective f ranch i ms of the clttsena
The constitution or tne iaie ot mcnican
contains an oath In substance the same as
that required by section 211 of our con;t-u-t
Ion, and prov Ides, as does our const 1 1 u t ion
that "no other oath, declaration or test ehall
be reaulred as a quauncation tor any on ice
or public true." And In the case of Dapper
vs. Smith, 101 X. V. (Mich.) &, the court
Jd: 'Kent County primary election law.
etloa 3. reoulrlng that before the name of
a candidate shall be placed on the ballot at
a nrlmarv election such candidate shall on
oath declare his purpose to become such Is a
violation or the constitution, article js, sec
tion 1, prescribing that oath which shall be
reaulred of public officers and providing that
no other oath shall be required as a qualifi
cation for any public office, since thereby the
voters are precluded from choosing as a
candidate one who declines himself to seek
the office.
Later on in the opinion It Is said: "This
nrovMoD is not one designed for the benefit
of the aspirant for public station alone. It
U in the interests or tne electorate as wen.
The provision of this law which requires that
before the name of any candidate shall la
m the ballot at the primary election
such candidate shall on oath declare his pur
pose to become sucn, exciuaes tne rignt ot
the electorate of the party to vote for the
nomination of any man who to not suffi
ciently anxious to fill public station to maks
such a declaration. The man who may be
willing to consent to serve his state or his
community In answer to the call of duty when
chosen by his fellow cltlsens to do so. Is ex
cluded and the electorate has no opportunity
to cast their vott for him. It k not an
answer to this reasoning to say that the
electors may still vote Tor sucn a man oy
using pasters. We cannot ignore the fact
thai nartia have become an Important and
well-recognized factor in government. Certain,
It Is that this law fully recognises the po
tency of parties and provides for partr action
as a foundation toward the choice of an of
fice at the election. The authority of the
Ir!s;ature to enact lams for the purpose of
aM-itrtnar Turliv In elections does not include
destroy or seriously Impede the enjoyment
of the elective franchise. We cannot escape
the conclusion that the provteJon in Question
does most serious4y impede the elector in . the
choice of candidates for the office ana that
It Is in conflict with the provisions of section
i ai-flla lft of tha constitution."
It Is, of course, plain that the provision of
our statute exacting the peage aiore-saia ie
much more vicious than the M tch Iran pro
vision which was condemned in tne tore
golne: ease. The candidate Is required by
such pledge to obligate himself to discharge
rtain of hla rmblln duties. If elected. In a
certain way. He. by such pledge, diverts
himself of all discretloned freedom of action
In the dlech&rre of a portion of his official
duties. If elected. This necessarily operates
to hamper and restrict persona in becoming
candidates for such onice. ana is inpreiwo
void. It is no answer to. this to say that the
statute' merely forces upon him a roorai oi
ligation In respect to the matters covered
by the pledge, and that such an obligation
Atii ifv him in the absence of such
statute. This would not necessarily be true
where the candidate has not seen nt to vol
untarily make such pledge to hia constituents.
Pledae Violate Iw.
Wa conclude that the requirement of
such a pledge violates Section 211 of our
Constitution In that it exacts an additional
test in contravention thereof. But oes 11
necesaarlly follow from this that all other
portions of Chapter 109, relating to to
election of United States Senators and giv
ing the electors oi eacn pany
tunlty to express their choice for the can
didates for such office are also void? W
think not. The pledge requirement is but
one step to effectuate the main object
sought to be accomplished, to-w4t: The
selection of a United States Senator in
accordance with the choice of a ma
jority of the members of the polit
ical party with which he affiliates- An
other, and entirely Independent, step
or method looking to the accom
plishment of this object Is the provis
ion permittin g the voters of each party
to record their choice at the primary, and.
In certain cases, at the general election.
The fact that the Legislative object sought
to be accomplished la or may be to a cer
tain extent, interfered with by reason of
the fact that one provision or measure
looking to auch end is Ineffective on ac
count of the invalidity of the law. la to
our minds, no reason why the main object
must fail when other independent pro
visions of the law designed to aid in ef
fectuating such object are not vulnerable
to attack. In other words, the provisions
of this law permitting an expression of tha
party will as to United States Senators, if
constitutional, roust stand, even though the
previsions requiring a pledge from the Leg
islative candidate that he will abide by
such expressed will cannot stand because
unconstitutional. The main object of the
law will ordinarily be accomplished about
as effectually without the statutory pledge
as with It. As before stated, the statutory
pledge. If valid, would create no more
than a mere moral obligation. Therefore it
cannot be successfully contended that the
Legislative Intent will be frustrated If
one provision of the etatute is uphold and
the other nullified. Each are eepwate and
Independent provisions, although designed
to effectuate the same main object or
purpose. Furthermore. Section 36 expressly
nw-iM- -in case any of the provisions
of this act should be declared unconstitu-
inn.i that Nhaii not anrect tne vauuny m
any of the other provisions of this act."
This loclcaliv brings u iw cvho.
which is that the entire act, so far as " re
lates to candidatea for unitea oiaiea on
ator. Is void under the Constitution of the
United States Much of the argument of
NLinr- counsel uDOti this branch of the
cae Is based upon the assumption that the
pledge feature of the law, when considered
In connection wnn tno ip'"""" :
ht th. members of each political party to
designate their choice as to Senatorial can- I
dldates. In effect operates as an election of
Tit.t stmtmtt Senators by nopuiar vote in
stead of by the Legislature, as the Federal
Constitution requires. If, therefore, the
pledge feature of the statute Is eliminated
because unconstitutional, much of counsel's
argument ceases to have any force. It ccr-
tatnly cannot be contended that the pro
vlslona permitting the voters of each po
litical nartv merely to uwignmo
choice for Senator amounts to an election
of such 8enator. as it amounts to nothing
more than the right of petition, a ngnt ot
which they cannot be deprived. The Leg-J
islative member la In no manner obligated
or required, except perhaps morally by rea
son of party support ana realty it vote i
and support the candidate of his party's
choice as thus expressed.
Court Has Not Jurisdiction. J
Rut. eoncedlna. for the sake of argu
ment, that the provisions of this primary
law contravene the provisions of the Fed
eral Constitution relating to the election of
T Trilled States Senators, 11 by no means
follows that this relator can raise the quea
tion or that thia court has Jurisdiction to
pass upon it The Federal Constitution
provides, by Section 6. Article 1, that:
"Each House shall be the Judge of the
elections, returns and qualifications of Its
own members, " Manifest
ly, therefore, the question whether a ben
ator has ben elected In the constitutional
wav Is not a Judicial question tor tne
courts to determine, but relate entirely with
the United States Senate. Jf this court
should decide that the provisions of the
statute In question are constitutional, such
decision would In no manner be controlling
and the Senate could say that a person
elected by our Legislature at the coming
session was not legally elected and could
refuse him a seat. The question is s
Federal one exclusively and the tribunal
to determine the same is designated in the
Federal Constitution to be the United
States Senate. This identical question was
hrnr the Supreme Court of Louisiana in
the recent case of State vs. Michel. 44 So. !
430. and the court very summarily disposed
of the question as follows: "Tha next ob- ,
Jection has reference to tne promise wnicn ,
the voters at the primary are requires to i
make that they will support the nominee. ;
it la said that bv this promise the nominees
at said primary and members of the Leg la- j
lature find themselves pieagea to vote tor
the nominee of the same primary for ,
t'nlted States Senator, and that that Is !
contrary to the duty Imposed upon them by ;
the Constitution or tna unuea oiuius m ,
voting; for United States Senators. Suffice
It to say on this ground that the engage
ment In question is precisely ..the same as
that which the member of a political cau
cus enters Into, and that no member ot
any Legislative caucus has ever thought
that he violated his duties under the ssld
provision of the Constitution by becoming a
member of tne caucus anu omuia
to abide by the result."
Kn riirht Is auaranteea to tne citizen Dy
the Federal Constitution pertaining to the
election of United States Senators. Hence
rotator has do atandlng In this court to
complain that the provisions of the primary
law relating to the election f United States
Senators is obnoxious to the Federal Con
stitution. ...
It is next contendea that tne law in
question includes subjects not included
within the title, as it amends the general
election laws of the state. We are satis
fied that this contention 1w wholly without
WHEN THE KIDNEYS GIVE OUT
Do you ever feel that you simply
can't go any further that you must
have rest for that lame and aching
back relief from that constant dead,
tired feeling freedom from those stab
bing, darting pains?
This is the condition that so often
comes at middle age, bringing, with it
an extreme nervousness and irritabil
ity that makes others think you
"cranky" and "hard to get along with.
Likely your kidneys are worn and
tired and need help. In any machine
there is one part that works the hard
est and gives out first. The kidneys
work night and day, removing from the
blood the uric acid and other waste
created by overuse of strength and en
ergy. Naturally a life of unusual ac
tivity doubles the duties of me Kidneys.
and in time the strain tells.
With healthy kidneys, one has a good
chance to live long, but weak kidneys
afflict old age with great discomforts.
The back becomes bent and lame,
rheumatism Is chronic, eyesight fails.
and too frequent or Involuntary pas
sages ot the urine cause embarrassment
by day and loss of sleep at night.
Doan s Kidney rills Dring new
strength to old- backs and quick relief
to weakened kidneys. They banish
backache and rheumatic pain, and reg-
late the bladder and urine. When once
proper filtering action is restored
BOAN'S KIDNEY
jSold by ail deaJsri. j
merit The feature of the law Insofar as
It relates to what shall be done at the gen
eral election, is clearly germane to the sub
ject embraced in the title of the act In
fact what takes place at the genm-al elec
tion Is merely a continuation of the party
caucus or primary for the purpose of de
termining the choice of the two candi
dates receiving the highest vote of the
June primary. The fact that tt is conduced
at the same time and through the same
election machinery as to the general elec
tion conducted, does not make it a part
of the general election. This was done for
convenience and to save expense. It Is
merely the consummation of an Incom
plete party nomination. It is, therefore,
strictly germane to the subject expressed
In the title.
The case of State vs. Drexe!, Neb.). 105
N". W.. 17-4, is cited as an authority In sup
port of counsel's contention upon this point,
but as we read the opinion. It is not in
point at alt The court was then dealing
with a aectlon of the primary law, which
read: "In no case shall the candidate of
any political party be designated upon the
official election ballot aa a candidate for
more than one political party, end shall be
designated upon the official ballot as the
nominee of the party in whose nomination
hta name appears as the political party
with which he affiliates. This section, as
the court held, did not deal with the ques
tion of a primary election at all, but with the
makeup of the official ballot to be used at
the general election, and hence was not
germane to the title of the set The ques
tion In the case at bar Is widely different
But it Is asserted by the relator's counsel
that the provisions of the act. insofar as
they relate to the general election, tend
to destroy the secrecy of the ballot and
hence are void. If their promise la correct
their conclusion would be sound, but to our
minds their argument Is based wholly upon
an erroneous interpretation of the law in
question.
Parties Mixed tn Primaries.
Counsel say In their printed brief: "All
tests are required under the theory that
party preservation Justifies such tests as
may be necessary to prevent members of
other political parties from participating In
the primaries of parties of which they
are not members, and yet this section pro
vides for the determination of the Repub
lican candidacy for United States Senator
by the act and vote of every elector of the
state, whether Republican, Democrat So
cialist, prohibitionist or Independent" They
then quote the following portion of the
statute: "The name of each candidate
shall be placed on such ballot in the same
manner as the candidate for state office
and shall be voted for In the same manner.
Counsel then sav: "Every elector, when he
presents hlmeelf to exercise his right of
suffrage, must be tendered the separate
ballot containing the names of the Repub
lican candidates for United States Senator,
whether such voter be a Republican or a
member of any of the other parties. To
pursue any other method would be wholly
void and unconstitutional. Section 129 of
the constitution of the state provides:
That all elections by the people shall be
by secret ballot subject to such regulations
as shall be provided by law. Such regula
tions would of necessity be only regulations
consistent with the subject expressed,
namely, secrecy. At the general election no
voter could be questioned as to his Inten
tions or as to whom he voted for or ai to
what his party politics were. For this is
not a primary election. The primary elec
tion Is based upon the theory that pub
licity is essential in order to preserve the
party organisations, wnne m -V"
trallan ballot system. hd at g en 'f"
( -kti k proceeded with under the
theory that all ballots shall be Becret " .
The language above quoicu .
to demonstrate that relators .wu..i
lohnrin under a misconception as to the
correct construction of the statute. As be
fore stated, the provisions or me
latlng to matters which shall take place at
the general election with reference to de
termining the party choice as between the
respective candidates for the United States
Senate are as entirely separate and distinct
from the general election as though they
were tb take place upon the following day
h. inn, nrlmarv. And to say that
the legislative Intent was to place ail can
didates of all the parties upon one ballot
Is to impute to the Legislature a purpose
to obliterate party lines end to ignore party
organizations wnicn mvy .lc..i.
so carefully safeguarded and preserveo.
When this statute as a whole is considered.
...ir.iv ,u.r that the legislative in
tent was, namely, that a separate ballot
should be used for the candidates of each
political party where such candidate failed
to receive u per cem -
at the June primary. The wording of the
statute is possibly susceptible of the con
struction assumed by counsel, but where
reasonably permissible, we must give the
language a construction which will effectu
ate rather than nuiury tno ppu 'c'n
latlve will and the whole act must do
strued together in order to arrive at a
proper interpretation. In the same section
we find the following clause: "That In case
no candidate receives 40 per cent of all the
votes of his party . . - then the two
candidates of each party who receive the
highest number of votes cast at such pri
mary election shall be placed on separate
ballot to be voted for at the general elec
tion following." The word "separate" as
there used, does not mean separate from
the general ballot but it means separate as
to each political party and the sentence
quoted bv counsel should be read as fol
i .. i.Th oonriiriate of each party to be
placed on such separate party ballot under
their proper party heading." This con
struction harmonizes with the balance of
the act. This effectually aisposes ol sun
set's contention upon that point But a word
with reference to the secrecy of the ballot
at the general election. As we have said,
what takes place at the general election
with reference to recording the voter's
tn his nartv's candidate for
United States Senate is a mere continuation
of the June primary and may be correctly
said to be a part of tne primary. x n
lng true, the following provisions of the act
. nntirohu tn such nrimarles held at
the time of the general election as to the
primary held in June. xne juua
spectors of election when handing a ballot
to a voter shall inform him that he must
vote for the candidates of the political
party such ballot represents only, and the
voter ehall call for the ballot representing
the party or principles with which he af
filiates and he shall receive such ballot and
no other." Also, "It shall be unlawful for
any person to call for or vote a ballot at
the primary election herein provided for ex
cept a ballot representing the party or
principle with which he affiliates, and any
person who has reason to believe that the
ballot called for by the voter does not rep
resent the party or principle with which
said voter affiliates, may challenge such
voter and he shall not be entitled to cast
his oallot unless he makes and Dies wim
the Inspector of such primary election an
affidavit to the effect that such ballot rep
resents the political party with which he
affiliates." The words "primary election
herein provided for," refer not only to the
June primary, but to the continuation
thereof held at the general election. If the
above construction of the statute le sound,
and we believe It is, then there Is no room
Backache, Rheumatism and
Bladder Troubles Make
Life Miserable
EVERY
PICTURE
TELLS A
STORY
"Aty back's no good any more.
1'UdSMJJIMISSljlU.SJill.lii;MIIUJ!HI!lMIlMllttt'rW
Price So cents. FosTut-MiLStnui Co, Buffalo,
AILMETO OF MM
My Practice Is the
Largest Because
I Invariably Fulfill
My Promises
There is a popular impression
that specialists' fees ore exorbi
tant If such be true, we wish to
state that it is not applicable to -us.
On the contrary our very
large practice and unusual facil
ities for treating men enable
us to offer the very best treat
ment inexpensively.
My Fee in Any
Uncomplicated Case Is
COXTRACTED DISORDERS.
Every case of contracted disease I treat 1 thoroughly
cured; my patients have no relapses. When I pronounce
a case cured there Is not a particle of Infection or In
flammation remaining, and there is not the slightest
danger that the disease will return In Its original form
or work itaway Into the general system. No contracted
disorder is sb trivial as to warrant uncertain methods
of treatment, and I especially solicit those cases that
other doctors have been unable to cure.
STRICTURE.
My treatment for stricture is entirely independent of
surgery. A complete cure is accomplished without cut
ting or dilating. All growths and obstructions in the
urinary passage are dissolved, the membranes cleansed
and all irritation or congestion removed throughout the
organs involved.
Those in any trouble suffering from SPERMATORRHOEA, VARICOCELE,
HYDROCELE, BLOOD POISON or any other disease tending to destroy
and disfigure and to render happiness impossible are urged to call upon me
without delay.
Consultation and Advice Free
Hours 9
The DR. TAYLOR CO.,
for the contention that the constitutional
provision with reference to secrecy of the
ballot will be infringed. Such a test applied
to voters at a primary election Is compara
tively necessary to preserve the party or
ganization and Is everywhere upheld. The
secrecy of the ballot to be voted at the
general election Is preserved Just as effec
tually as though this caucus or primary
was held on the day before Instead of on
the day of the general election.
With reference to the meaning ot tne
constitutional provision as to a secret
ballot, the Supreme Court of California In
a very recent case said: "It Is the secrecy
of the ballot which the law protects, and
not the secrecy as to the political party
with which the voters desire to act. The
primary law does not prevent him from
voting secretly. We cannot preceive where
this law exposes any person advocating doc
trines distasteful to any section of the
community to Its enmity any more than
such a person would be exposed if he cast
his ballot at a primary election held under
the direction of the party managers with
out control of the law." Kats vs. Fitzgerald,
93 Pac. 112.
Another point urged by relator's counsel
Is that the sot Is a delegation of power
expressly granted to the Legislature. This
contention is devoid of merit. In the first
place it does not amount to a delegation
ot power. The legislature still elects the
Senator and the act merely gives the voters
of each party an opportunity to express
their choice of candidates. As we have
heretofore observed, furthermore, it does
in effect delegate such power, this relator
is not the one to complain. As before
stated, that Is a Federal question with
which the court has nothing to" do. Again,
conceding that It Is a delegation of power,
the Legislature, in electing a United States
Senator, does not act In a Legislative way
at all. It merely acts as an elective body
and we know of no provision of our State
Constitution which thus limits the Legis
lature. Lastly, it is said that the act attempts
to bind successive Legislatures. Our an
swer to this Is that each Legislature has
plenary power when not restricted by the
State or Federal Constitutions and hence
may repeal the entire primary law at any
time it chooses to do so. Furthermore, it
is not true, as stated, that tho act thus
operates. It does not bind the Legislature
to do anything. It merely permits an ex
pression of choice by the voters and by its
provisions In effect provides a convenient
method of exercising the constitutional
right of petition. In Section 165. Black's
Const. Law. In speaking of the right of as
sembly and petition as conferred by the
First Amendment to the Federal Consti
tution, the author says: "The right secured
by the Constitution extends only to peti
tions for the redress of grievances." In
respect, however to the privilege which at
tends petitions made In good faith and In a
proper manner the term Is one of wide Im
port. It Includes not only requests for the
passage or repeal of laws, and for the re
moval of officers who have abused their
authority, but also recommendations to
office, remonstrances against proposed ap
pointments or the grant of licenses and
privileges, and demands for any sort of of
ficial action or forbearance."
Entertaining the foregoing views, it fol
lows that the writ prayed for must be de
nied, and it is so ordered.
Mormons to Make Salt.
CHICAGO, Nov. 7- Salt Lake City, the
home of the Mormon Church, has heard
through curing the kidneys, the dan
gerous uric acid Is once more expelled
from the blood, and danger of gravel,
stone, dropsy, heart trouble, diabetes
and Bright's disease removed.
Doan's Kidney Pills are for sick kid
neys in old of young. There is not a
particle of naicotic or poisonous drugs
in this remedy. It is recommended pub
licly by thousands.
Portland proof.
W. Jenkins, retured, 1110 E. Harrison
St, Portland, Or., says: "Doan's Kid
ney Pills have been used by myself and
other members of my family with eni
tire satisfaction. Acute attacks of back
ache annoyed me off and on for some
time and dull, dragging pains through
out the kidney regions made It difficult
for me to attend to my work. The kid
neys were badly out of order and the
secretions caused me considerable an
noyance. When Doan's Kidney Pills
were brought to my attention, I pro
cured a box and began their use. They
brought relief sooner than I expected
and I continued taking them until my
trouble had entirely disappeared. From
that time to this I have had continued
freedom from any of my former annoy
ances and I cheerfully recommend
Doan's Kidney Pills to all sufferers
from weak or inactive kidneys."
fflgIEI133BS!38!sE!
PILLS
N.Y.. Proprietors,
DR. TAYLOR,
The Leadlnc Specialist.
Perhaps the most
men yields readily
A. M. to 9 P. M. Sundays
the rumor that the Mormons are going
Into the salt business and have sent a
representative to Chicago to close a deal
for the holdings of the salt trust. Ac
cording to the dispatch from the city in
Utah, D. W. Clayton, manager of the
salt works on Salt Lake, will negotiate
the sale. He is said to have unlimited
capital behind him. Joy Morton says that
he has never heard of Clayton or of any
attempt to purchase any of the salt prop
erties In which he is Interested.
NEGRO EQUAL IN CAFES
Washington, D. C, Court So Decrees
but Doesn't Limit Prices.
WASHNGTON, Nov. 7. A decision
was rendered . by Corporation Counsel
Thomas yesterday that hereafter hotels,
restaurants, cafes, ice cream saloons,
places where soda water is sold and
IBIO
shapeliness. All of this can be avoided, however, by the use or
Mother' Friend before baby comes, as this great liniment always
prepares the body for the strain upon it, and preserves the symmetry
of her form. Mother's Friend overcomes all the danger of child
birth and carries the expectant mother safely through this critical
ceriod without pain. It is woman's greatest blessing. Thousands
gratefully ten or me oencni auu
vy all uruggiaia ai i.v
per bottle. Our little book,
telling all about this lini
ment will be sent free.
THE BRADFIELD REGULATOR CO.
Atlanta, Ga.
M
DONT FAIL TO VISIT OUR
FREE MDSEUM OF ANATOMY
A complete exhibition of science and
art.
Presenting a vivid and realistic study
of the origin and development of the hu
man race from the beginning to the end.
Also a figure study of health and dis
ease in all its various phases, represent
ed by life-size models in wax and papier
mache. These lifelike models are the cleverest
work of the foremost masters of the
world.
Reader, you should see this great ex
hibition and note how wonderfully we
are made.
CONSULTATION AND EXAMINATIONS
FREE AND OUR CURES GUARANTEED
We cure Weakness of Men, Varicocele, Hydrocele, Nervous Debil
ity, Elood and Skin Diseases, Sores, Ulcers, Swollen Glands, Kidney,
Bladder and Rectal Diseases, Prostate Gland Disorders, and all Con
tracted Special Diseases of Men.
Men make no mistake when they come to us. We give you the
results of long experience, honest, conscientious work, and the best
service that money can buy. If you are ailiDg, consult us. Medicines
furnished in our private laboratory from $1.50 to $5.00 a course.
If you cannot call, write for self-examination blank. Hours, 9 A.
M. to 8 P. M. daily. Sundays 9 to 12 only.
OREGON MEDICAL INSTITUTE
291Va Morrison St., Between Fourth and Fifth, Portland, Or.
A physician is not entitled to his fee in advance.
We are the only specialists in the West who con
duct business on these principles.
NOT A DOLLAR ASKED TOR UNTIL A CURE
IS EFFECTED.
This is not limited in time or conditional in
character.
VARICOCELE.
Varicocele interferes with local circulation and
the process of waste and repair throughout the
organs involved. When neglected it brings total
or partial loss of power and may even result in
a wasting away of the organs themselves. I
cure varicocele in one week. My method is abso
lutely painless, no surgical operation is involved,
and there need be no detention from business.
The lost tone and elasticity is restored and
weakened and dilated veins vanish and normal
circulation and health are again established.
YOU PAY FOR
CURES ONLY !
SO-CAIXED WEAKNESS.
prevalent of all ailments peculiar to
to the mild methods of treatment I
"Weakness" Is merely a symptom of local disorder,
usually an iafJhmed condition of the prostate gland.
This I overcome by a thoroughly scientific system of
local treatment, and the full and normal degree or
strength and vigor is permanently restored.
SPECIFIC BLOOD POISON.
Until the perfection of my system of treatment, specific
blood poison (commonly known as syphilis) was re
garded as incurable, and the limit of medical aid was
to keep the disease dormant by the use of strong min
eral drugs I positively drive the last taint of poison
from the svstem. My cures are absolute. Every symp
tom vanishes to appear no more. I use harmless blood
cleansing remedies only, such as were never before
used in the treatment of the disease.
NOT A DOLLAR NEED
BE PAID UNTIL CURED
lO to 1.
Cor. 2d and Morrison, Portland
Private Entrance 2343-a Morrison St
barber shops in the District of Colum
bia, will he compelled to serve colored
persons in the same room and at the
same price as white persons. The old
plan. It is said, will be restored and un
desirable patrons driven away by charg
ing prohibitive prices. If a negro should
float into the favorite collation-room of
Upper Tendom and merely ask for a
cup of coffee he will be politely In
formed that the beverage will cost him
2.35. If he wants a plain steak he will
be notified In advance that the check
will be J11.60 and with onions J16.35. The
courts have sustained such tactic.
I
Buy Large Tract at Vale.
VALE. Or., Nov. 7. (Special.) H.
R. Garrett and M. W. Smith, of North
Yakima, Wash., purchased 64 acres of
city property last week and organized
the Vale Realty & Investment Com
pany and have surveyed and platted
the land into Nelsen's First Addition to
Vale.
Every woman covets a
shapely, pretty figure, and
many of them deplore the
loss of their girlish forms
after marriage. The bear
ing of children is often
Hpsfrnrtive to the mother's
icnti u&nvbu nwn mv. mov
IPTOERTI)
ROT
r- --""in aritinifinan frfniirTTf
OUR FEE
For m complete cure In asjr simple m.
complicated case.