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About The Sunday Oregonian. (Portland, Ore.) 1881-current | View Entire Issue (Dec. 5, 1909)
6 THE SUNDAY OREGONIAN, PORTLAND, DECEMBER 5, 1909. SUPREME COURT ADDITION ILLEGAL Attorney-General Quotes Law and Shakespeare in Assail ing Act of Legislature. JUDICIAL POWERS SEIZED Crawford Says Constitution Bars Ap pointment of More Than Three .Tndges Official Cites Coo ley as Authority. SAI-EM. Or., Dec. 4. fecial.)) At-torney-General Crawford. !n his reply brief in the uw of the. State of Oreffon against Sam Cochran, in which he con tends that there Is no authority of law for more than three justices of the Su preme Oonrt. not only brings to bear a mass of lefsal authorities but find!" a pass age In Shakespeare that is apropos. In 'The Merchant of Venice," in the triai of BasSanio before Portia. tllBKiilsed as . .iudpe of the court, with Shylock as the prosecuting; witness, 'standing on his bond,' and the merchant ofTcring to sub stitute for tho pound of flesh demanded by the Jew, three timep the sum in cash named in the bond. Portia declares: Jt mupt not b: there ip no power in Venice t'an alter a decree established; 'Twill be recorded for a precedent. And many an error by the name example Will ruh into the state; It cannot be. The Attorney-General, referring; to the argument of amlcl curiae that the busi ness of the court requires the services of more than three justices, .admits the contention but shows the danger of-remedying this1 state of affairs by the above Quotation from the Bard of Avon. No Precedent I'onnd. "Also," declares the brief, the learned counsel might have saved the labor ex pended In their effort to Impress Mipon the. court the proposition that state con stitutions are not a grant, but are in hibitions of power, and that the Legisla , lure of a state can exercise its leglsla ,tive' power upon any subject, if not In hibited from so doing by the constltu ' Hon. That doctrine is fundamental and Jlias) never, to our knowledge. ?eeii con troverted. The question under considera tion is whether said chapter 50" of the laws of 1W)9 contravenes the provisions of flection 10 of Article ,VTI of the Oregon Constitution. .' Constitution Amendment Needed. ! "It cannot be maintained that an ex- press inhibition against creating more 'courts and investing them with judicial .powers la found in Section 1 of Chapter 50, i yet in the whole life of the state, no one i frias) ever claimed that the judicial sys : tern could be changed, without an amend- rtnent of the constitution, and in all acts' i creating Commissions, like the Railroad Oommisfnon, the Board, of Control of ' Water Rights, and other boards and com ( missions, which are given authority to tdeclde matters1 In the first instance, an I nppeal to the courts) is provided for any L one not satisfied with the decision of the rald board or commission, and if the right I to invoke the jurisdiction of the courts Is denied the power vested or attempted to be so vested, in such board or com ! mission has universally been held uncon ' etltutional." Judiciary Construes Jjaw. In support of this contention the reply brief quotes the Kncyclopedia of Law, Knickerbocker vs. People, 102 111. 218, and Capitol Lumbering Company vs. Hall. S Oregon 92-101. The brief continues: "yet the inhibition in said section 1. that judi ; clal power can be vested in no ether courts', is implied from the language used." Copioun citations are made from , the words and opinions of Judge Cooley, known as "the beacon light of American juris prudence." From Cooley's Const. Urn. 7th ed.j pp. 131, 132, the following is taken: "The legislative power, we understand to be the authority under the constitu tion, to make laws, and to alter and re peal them The difference between the departments undoubtedly is that the legislature makes', the execu tive execute!, and the Judiciary construes the law." Judicial Question, This. The above is quoted' in refutation of the claim that the number of Justices is ! political and not a Judicial question, 'as contended by Judge Martin L."Pipes in riis brief submitted as amicus curiae. Judge .Cooley also quotes from New land vs. Marsh (19th 111., 883), as follows: "Tho legislative power extends only to : Ihe making of laws, and in its exercise I It is limited and restrained by the para mount authority of the Federal and state constitutions." Commenting on this quotation, the Attorney-General says: "In the case at bar, the legislature tmade chapter 60 of the laws of 1909,' and lit most assuredly cannot be the final judge of whether, in the exercise of its ilaw-maklng power in so doing, it con- travenes the state or federal Constltu ' tions." "To declare what the law is or has been is a Judicial power; to declare what the law shall be is legislative." Cooley 137. Conflict Is Fatal. "J "However, in so doing the Legislature ! must not conflict with either the Federal ' or state constitutions, and if it does, the legislative declaration must fail." " Attentton is called to the fact that the Supreme Court of Kansas, in the case of ! state ex rel. vs. Ftancis. Treasurer, took I Jurisdiction of the question as to whether the House of Representatives of that . state consisted of more members than it ! was entitled to, and declared an act I passed by the Legislature, enacted with 1 the aid of four members who, the court ' held, were not entitled to sit therein, to be unconstitutional and void. After quoting the section of the ' con stitution fixing the number of Circuit and Supreme Court Justices, the brief states: "The fact of fixing tho number as to Supreme Justices and not doing .so as to Circuit Judges. shows that the power was reserved as to Increasing the num ber of Supreme Judges but left to legis lative discretion or the power of the con stitution the necessary number of Circuit Judges." Court Reorganisation Kffected. The brief quotes from the opinion of Justice Iord in the ease of Newson et al. vs. Ureenwood, JOth Oregon, which says decisively that there was a complete re organization of the courts of the state "when the white population reached 20ft, lX." and that "although invested with the same supreme 'Judicial power, it is not he. same Supreme Court which ex isted prior to the act of the Legislature. . . . The power given by the constltu . tion to the Legislature to constitute a ' Supretne Court, to be composed of three J members, whose tenure of office was to j be derived from the -oters of the state. I when exercised, put an end to the former judicial system. The old system could not exist when the new was brought into existence." Decision Still Stands. Attention is called to the fact that this decision xhas never been overruled "nor the force of its reasoning doubted, prior to said act of the Legislature un der discussion. ... If the power now exists to create additional Justices of the Supreme Court it must have ex isted in 1878; and no lawyer or layman has been discovered until recently who had the presumption to even intimate that such was the case." Cooley on Constitutional Limitations is quoted: "Where a law ,1s plain and un ambiguous, whether it be expressed in general or limited terms, the Legislature should be intended to mean what they have plainly expressed, and consequently no room Is left for construction. Possible or even probable meanings, when one is plainly declared in the instrument itself, the courts are not at liberty to search for elsewhere." Voters Interpretation Guides. The Attorney-General declares that "the people who voted for the constitu tion had no .Jdea that the words 'one of which classes shall - consist of three Justices of the Supreme Court' meant three or more Justices of the Supreme Court." Amicl curiae, In their briefs in the Cochran case, cite Article VI of amend ment to the Federal constitution, provld- PRAIRIE CITY COUPLE SURPRISE FRIENDS WITH THANKS GIVING WEDDING. I - f v i f J i 'Wi.tJ i - 1 c:i:L . . i i vi f f , ' " "" f , i I J 4 " Itufwiif ntiuMMtf i s.1,1.- in ,.. ,.,r,.., I MR, AND MRS. JACOB PAtTLXJS, THE BRIDE, WAS FORMERLY MISS HESTER LAlltAXCE. PR VIP.IE CITY, Or., Dec; -4. (Special.) A Thanksgiving weddins has Just become known to the people rf Prairie City. Jacob Paulus and Allss Hester Elizabeth Laurance surprised their many friends when they were quietly married at the home of the bride's brother, Steve Laurance, Deputy County Clerk in Canyon Citv, ..ednesday Novem ber 24. . . . ' Mr. and Mrs. Paulus are among Grant County's most popular young people. Mr. Paulus is a prominent stockman of Grant County, and the bride is the daughter Of Mr. and Mrs. B. P. Laurance. Mr.-Laurance Is an extensive landowner and prominent in political circlesi' Mr. and Mrs. Paulus will make their home in Prairie City. ing that persons accused of crime shall enjoy the right of speedy trial, and other authorities to the same effect. In reply to this the brief of the Attorney-General and his associates report that "the Su preme Court does not try persons accused of crime, but - is an appellate tribunal, and can only examine the record to de termine whether the person accused has had a fair and impartial trial In the court below, and whether the trial . has been so conducted as to deprive him of any constitutional right. The right of appeal is not a right guaranteed un der the constitution, nor does it exist at common law.- ,When a person accused of crime has had a fair and impartial trial before a Jury in Circuit Court, all constitutional guarantees have been ful filled, regardless of the congested or non congested condition of the Supreme Court docket. The right of appeal is only a statutory privilege. After the main part of the Yeply brief was set in type. Judge Martin L. Pipes, as a friend of the court, submitted a short brief in which he set up the claim, or rather draws the inference, that the question raised by the Attorney-General is a political one for the reason that if all five of the members of the court, as now constituted, should insist upon passing upon the merits of the motion of the Attorney -General, and they should disagree and two mandates hould be cent down to the trial court, the lower court would be puzzled as to which ' to obey. The reply brief asserts that no such thing could possibly occur, that the two additional Justices would hardly wish to sit in judgment on their own eligibility "precedent, if not propriety, forbidding" and that there has never been any claim that three members of -the court, as at present constituted, are not legally en titled to it and act as such Justices. NEW DIVORCE RULE MADE Responsibility for Care of Children Is AViUiout Limit. SALEM, Or., Dec 4. (Special.) Rul ing that there is no statute of limita tions in a. divorce suit as far as re sponsibility of children is concerned, and announcing that the equity court in this district will establish a prece dent by demanding that all- divorce complaints take cognizance of 'issue of the marriage. Judge William Galloway In the Circuit Court today offered some points of interest. The divorce in question is that of L. Q- Bowers vs. Elizabeth Bowers, set tled by Judge R. P. Boise over ten years ago. At the time the case was settled no mention was made of the support of two children, issue of the marriage. In a recent complaint it is asked by the defendant's counsel that support be given the minor children until such time as they reach majority, and that settlement be 'made on the same basis for the years intervening since the settlement of the suit, dur ing which time no provision was made for the support of the issue. Judge Galloway stated that the divorce case, as far as final settlement of the decree itself Is concerned, is closed and past, but as to responsibility for the care-of the children there can be no limitation set. The case has been taken under ad vlBement. A SIMPLE REMEDY, A soldier who has suffered all kinds of hardships and their consequent ills, says that he has found almost instant relief from rheumatism, lumbago and kidney trouble by procuring from his druggist two ounces of Salgrene and four ounces pure olive oil, thorough ly mixed and taken In two teaspoohful doses every 3 to 4 hours until relieved, one teaspoonful three times a day. SALOON CASES UP Twenty-three Proprietors Are Arrested at The Dalles. STERN REFORM DEMANDED Council and Municipal League Hold Spirited Session, and Mayor Or ders Marshal to Enforce the Law. THK HAU.ES. Or.. Dec. 4. (Special.) Warrants have been served on 23 sa loon men of The Dalles, accused of sell ing liquor to minors. The men were arraigned before City Recorder Davis yesterday, each entering a. plea of not guilty. The cases will be tried sep- arately. The first on will be called in the Police Court Monday morning.; The following were arrested: Fletch er brothers. Bryant and Davis, Ernest Gerichten. II. J. Dunn, Tom Kelly, Dan Baker. Dan Bully, W. J. Harriman, C. B. Adams, L. A. Porter. C. J. Stubling, Fred Pundt, C P. Johannsen, C. R. Twineham. Charles Frank, Rudolph Frank, Al "Nelson, Charles Friedly, Frank Kidd, - Owen Matthews and Charlie Allen. A complaint was filed against one other, but. it ws discov ered a mistake had been, made, owing to the similarity of the names of two saloons. Proposed Reforms Drastic. While the city officials were moving against the saloon men, the committee of five, representing the Municipal League, was almost simultaneously framing an ordinance recommending drastic changes in the city charter, reg ulating the sale of liquor. The ordinance was presented and read at last night's meeting of the City Council. After it had been thor oughly discussed by members of the audience which crowded the Council chambers to the doors, and the Coun cil, the ordinance was tabled. The measure was considered too drastic by tlfe city fathers. The principal recom mendations were: An increase of li cense from $400 to $1000 per annum; 10 o'clock P. M. as the hour for closing: abolition of rear entrances and rear rooms; the final reduction of the num ber of saloons-to a maximum of 12; the Council to be given the power to revoke licenses upon the conviction of any proprietor of violating any law; no renewal of license where conviction has been secured; Council's action to be final; each saloon to be furnished with glass fronts, and the bar so ar ranged that every patron would be in plain view of passersby. AVingate Raps ex-Mayor. Ex-Mayor J. L. Kelley, president of the committee of five, representing the Municipal League, was the principal speaker in favor of the proposed ordi nance. Mayor Wingate asked his pred ecessor if it would not have been just as well had he (Kelley) championed such "an ordinance during his term of office, instead of leaving it for a later administration. Mayor Wingate insisted the people did not ' want such drastic measures, declaring that a reform candidate who sought the office of Mayor on Just such a platform was defeated by a vote of 535 to 255. A committee of four Councllmen and the Mayor were authorized to draw up an ordinance governing the sale of liquor and licensing-, saloons in this city. "The committee is composed of Mayor E. M. Wingate, Councilmen Grant Mays, L. A. Schanno, J. F. Mc Inerny and G. C. Blakeley. A report will be made at an adjourned meeting Friday night, December 10. . Mayor Wingate Informed Chief, o. Police Harper, that he ' would be held strictly accountable for any negligence in enforcing the laws. The Chief asked for an additional officer during the time the saloon cases are being prosecuted. The Council voted last night to stand by its promises that saloon men accused of violating the law would be prosecuted. SCHOOLS GET MORE MONEY Ashland Taxpayers Increase Fund ' by Special- Taxation. ASHLAND, Or., Dec. 4. (Special.) Taxpayers of Ashland at a special school meeting today vottd to raise over $20,000 A Season for iverything, and Now ls the Dress CMhes CHESTERFIELD DRESS SUITS Are the Acme of Perfection in Style and Fit. Priced: $50 and $60; Dinner Coats to match dress suits $30 and $35. Pleased to have an opportunity of show ing you-the styles. 11 o 273-275 Morrison at Fourth by special tax for' the support of the free public schools of the city for the ensuing year. - This is In addition to nearly $10,000 estimated receipts from the state and county fund and includes a provision for the installation of departments of manual training : and domestic science- In the schools for the coming year. The total . taxable property of the dis trict is nearly $3,000,000. One additional grade and one more high school teacher are provided for in .the estimates for next year. BONDS SOLD, ROAD BUILDS 0 ' Completion of Xez Perce & Idaho by . March Likely. LEWISTOX. Idaho. Dec. 4. (Special.) Bonds to the amount of $125,000 were floated In Chicago Thursday to provide funds for the completion of the Nez Perce & Idaho Railroad, extending from Nez Perce to Vollmer, 12 miles. The construction of this road was begun 18 months ago by Z. A. Johnson, of Nez Perce. He completed' the grad ing, the bridges and the first mile of track last Summer, expending approxi mately $100,000 of his own funds, but because of delays in securing mate rial and financial disappointments, he was unable to complete the line in time to claim a $50,000 bonus offered by the farmers of the country ' to be served. The rails -will be ordered at once, and It is expected the road will be In operation March 1. During the past Summer three large warehouses have been erected along the right of way. and more than 500.000 bushels of grain are now in - storage awaiting transportation. The road will pene trate the heart of the Nez Perce prai rie country, and will connect with the Camas Prairie Railway Company at Vollmer. FAMOUS ROAD IS SPOILED Expensive Highway Almost Ruined by Excessive Traffic. SALEM, Or., Deo, 4. Special.) The fact that road districts near corporate limits have roads that are used exten sively by people in outlying districts, while those same outlying districts have roads which are never used by the people who reside in the close vi cinity of corporate limits, is the bone of -contention which called a large dele gation to the city today to appear be fore the County Court in behalf of. the Government road, which was construct ed here a few years ago by the De partment of Agriculture. The delegation contended that team sters from the mountain timber dis tricts, carrying heavy loads of wood, had materially injured the experi mental road of the Government north of Salem, and that repairs are now necessary because of - extraordinary usage. The County Court is in a quandary as to how to settle the difficulty, but has offered the district a rock-crusher fib skJh "I should feel guilty of in gratitude if I did not tell-rf the benefit I have derived from Hood's Sarsaparilla. Five ugly and painful ab scesses formed in the lower part of my abdomen. I was confined to my bed thirteen weeks, and the pain was al most unbearable. A neighbor suggest ed that I try Hood's Sarsaparilla. which I did. I began to improve immediately, the abscesses began to heal, and I con tinued to take the medicine until I was well." JOHN WAUACG, Field Sec. X. M. C A.. Pittston. Pa. Get Hood's Sarsaparillf4 today. Tn usual liquid form or tablets called Sarsatabs. bscesses WMmnWStA Season for and sufficient help to operate it so that the Government road may ' be placed back in frood condition. MEN'S GLOVES AND SOX AT LENNON'S SPECIALTY STORE Greatest assortment of the Northwest. Men's Gloves, lined and unlined, fleece, fur and silk-lined.. Complete j assortment Auto Gauntlets. ! MEN'S SOCKS Best Socks for Men. Tine Silk Lisle One dollar per box of four pairs, either all black or as sorted colors. Agents for 'Hosiery The guaranteed Hose for men and women ; . six pairs '. . $ 1 .50 Guaranteed for six months.. Lennon's Glove Orders for Christ mas presents. Backed up by the world 's best gloves. Good in Port land, San Francisco, Seattle. Opposite Postoffice, 309 Morrison St. Bishop Taylor-Smith, Chaplain 'General of tbe British Army has kindly given ujt per mission to publicly state that he has at various times ordered supplies of Mother 'Ill's e and Train Sick Remedy and that he ha found it most effective. Recommended editorially by such papers as Ixmrton Daily KxnrnM and the press gen erally in Great JJritain and America. An alyzed by Sir :harles A. Cameron, C. B. M. 1 1. Guaranteed perfectly Harmless and if not satisfactory money refunded. Write for booklet, press notices and testimonials from prominent people. For sale at all first-class drugftrstn or send direct to MntbersllI Remedy .. 281 ' C'leland Bids:.. IWtrolt, Mlcblann. 19 St. Bride Mr., London. K. . For sale and recommended in Portland br Skidmors Drm Co. 7o gu?ygg-ui DrjLj57 -r GRAND CHRISTMAS PIANOLA RECITAL THURSDAY EVENING, DEC. 9 AT EIGHT-THIRTY EILERS RECITAL HALL Cor. Park and Washington Sta. SOLOISTS: Miss Petronella Connolly, contralto. Mr. Stewart Maguire, baritone. Mr. Warren Erwin, tenor. Mr. Earl C. Sharp, accompanist at the Pianola. Mr. R. O. Burnett, soloist at the Pianola. In order to avoid overcrowding and to insure a seat to all who attend, admission will be by ticket only, which may be had entirely free by applying at our retail salesrooms. Park and Washington streets, any time before Thursday night. WHAT MORE APPROPRI ATE CHRISTMAS GIFT THAN A PianolaPiano? Make your selection now. Piano selected will be held until Christmas if desired. A New Pleasure for You in a D O you realize that of hie is right within vour grasp, if you aviII but take it? Ilave you any conception of what it means to possess the power the Pianola Piano gives you to produce music yourself? Probably you have not. or you would already be one of the vast army of "Pianolists" who are now such a fac tor in the music situation of the entire world. It will pay you to attend will be illuminative. You will hear music of the best description. In the rendering you will recognize the influence of the per former's individuality, just as strongly marked as though he were a great virtuoso seated at the keyboard. Then, if you remain after the recital, it will be demon strated that you, yourself, might in your own home ex perience just the same pleasure that the performer at the recital must feel in producing such perfect and artistic music," as you- have heard. The Metrostyle, which has no analog-y or substitute on any other instrument, is on both the Pianola and Pianola Piano. This device is the teacher which shows - you how to use the Pianola artistically and contributes more to the pleasure of playing; these Instruments than any other factor. The Themodist Is a device that brings out the melody and subdues the accompaniment. Now more than ever does the Pianola command the admiration of the musl . cian. for this latest improvement produces exquisite effects that were heretofore impossible to any agency except the human hands alone. The Themodist is ex clusive with the Pianola Piano. , If you have not yet heard the marvelous effects pro duced by the "Themodist" and the "Metrostyle," call at Ellers Piano House and investigate them for your self. Both the Pianola and Pianola. Piano with these wonderful Improvements are on dally demonstration. The genuine Pianola and Pianola Piano are sold exclusirely by THE HOUSE OF HIGHEST QUALITY 353 WASHINGTON We Are Ready for Christmas ARE YOU? This is the month of good cheer and gift-giving. Better take stock early don't wait until the joy . bells are ringing. We are happy to state we can make you happy in your selection of holiday gifts from our complete assortment. Diamonds, Watches, Jewelry Silverware, Toiletware Cut Glass, Novelties, Umbrellas It is a matter of pride with us to have a gift more highly prized because it comes from us. The least inexpensive up to the most costly has our guarantee of quality, and your satisfaction goes with every purchase. Diamonds Are Our Specialty Examine our stock, get out prices before buying elsewhere ; it will pay you. .mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmnmmmmmmmmmmmwmwmmmwmmmmnmmmmwmm That Is Waiting Pianola Piano one of the keenest eujoyment3 the first Pianola Recital, It BIGGEST, BUSIEST AND BEST ST, AT PARK (8th) ST. wi mm