13 THE SUNDAY OREGOXIAX,' POItTLASP. DECEMBER 4. 1910. .
i . -rzzz ill. i
SUPREME COURT
TO JUDGE ON FACTS
Lower Court Judge Cannot Set
Aside Verdict Rendered
by a Jury.
ANALYZE NEW-AMENDMENT
J a dee Martin I. Plprs Interpret"
lion Is Tbat Kale for Civil Cases
Will Likewise lie Applied to
Criminal Cas.
That the Supreme Court ha power
to fix Judgment of an action of law
upon the (acta and the evidence, re
ardlea of what the lower court mar
do: tbat the Judge In the lower court
cannot set aside a verdict of a Jury,
no matter how unreasonable: that
omlttlna the lower courts from the
constitution is not material: that the
rule (or civil cases will apply equally
with those that are criminal: that the
Supreme Court cannot re-examine a
fact found by a Jury, and that the
LeKtulature baa power to change
Jurisdiction and the courts, are among
the points elucidated In an Interview
with M. U Pipes, of Portland.
Judge Pipes deals with the Issues
i which involve the adoption of the
Judiciary amendment to the constltu-
tlon of Oregon at the recent election
and clearly points out that If the law
la not satisfactory It ran be changed
by the Legislative Assembly or by the
"People's i-cglslature." which label he
puts on the Initiative and referendum.
Judge Pipes statement follows:
Crltirlm Not Intended.
"My purpose the other night at the
: Bar Association was not to criticise
the new Judiciary amendment, but to
arrive at the true construction of It.
applying the rules of construction ap
plicable not only to constitutions and
laws, but all other written Instru
ments. "Without entering Into the detail of
the argument there made. I can tell
you In a few words the conclusion I
. have reached on that subject. Some
able lawyers disagree wltb my con
clusion, but have not, to my mind.
Ibaken 1L
-I think the plain Intent and pur
pose of the amendment in respect of
the function of the Supreme Court. In
actions at law. Is to empower the Su
preme Court to try actions at law on
appeal, upon the evidence and record
tn the cause, and from the evidence and
; record to determine what the correct
Judgment should be on the law and
facts and so enter It as a Judgment
of the Supreme Court without send
, ing the iuse back to he tried again
In the lower court. That Is the
change In the old law effected by the
' amendment. It I am right-
Power Larking I'nder Old Law.
'. IndT the old law the Supreme Court
' had no power to pwe on or determine
: the fart in an action at law. Its power
extended only to reversing or affirming
(the cas upon consideration of errors of
law claimed to have been committed by
; the Judge of lower court. The aup
' pwed evil to be corrected by the new
amendment was the prolongation of
" trials caused by the r.erere-tty of trying
the rase again in the lover court and
the possibility of another appeal. I think
that evil Is intended to be remedied, by
allowing the court, with the evidence be
fore it. to try the case anew, disre-
gardlng the supposed erroneous rulings
of the lower court. This is made clearer
by the provision in the new amendment
' to the effect that If the court Is of the
! opinion from a consideration of the
evidence and record that the Judgment
J of the lower court should be changed
. and that It ran determine what kind of
I Judgment ought to be made it shall enter
such a Judgment In the same manner
' and with like efTect as a suit In equity.
In suits In equity the Supreme Court
' has always tried the case anew upon
the pleadings and evidence and entered a
decree In that court which la a decree
. f the Supreme Court, enforced, however,
according to Its directions in the Circuit
Court. There are no new trials In equity
raes except that some times when the
lower court has not fully tried the case
It is sent back for that purpose. Ordi
narily an equity case is finally completed
in the Huprrmf Court. I think the new
amendment is to apply he same practice
. .n actions at law.
Criminal Cases Affected.
Although not exp-ly exated. it la
Implied In the amendment that the new
rule is to be applied in criminal as well
as civil action. It Is provided that
nothing In the amendment shall be con
strued to authorize the Supreme-Court to
And a defendant guilty of any offense
' the punishment of which Is greater than
that of which the accues-d la convicted.
I think from considers lions not neces
sary now Is argue that this meana that
the Supreme Court in a criminal cs.se
msy reverse a Judgment of conviction
' ami If the evidence before It Justifies
. msy find the defendant guilty of a less
4rgree of the offenr of which the ae
: rused wss rhsrged. It dncs not authorise
the fupreme "urt to flr.d a defendant
guilty of a dfTfervrt offense from that
charged.
Another radical change ls effected by
: the amendment which provides that
there shall not be a re-exam!nallon of
the facts after the trial by any court
f the state If live court can afflrroa
' lively say thai there Is any evidence to
support the verdict. I think that the
word court In that clauws means the
trial and not the Supreme Court. The
Supreme Court never dul have authority
heretofore to re-examlre questions of
fact passed on by a Jury, and this clause
must be supposed to refer to Ihe courts
that have heretofore exercised that
power, that hi to euy. to the Circuit
Court.
But the clause chasgea the power of
Ihe Circuit Court In an Important par
ticular. Heretofore trial Judges had
the power and the duty to set aside a
verdict of a Jury if the verdict was so
strongly again! the weight of evi
dence a to admit of no reasonable
doubt. Cnder the new amendment the
Judge of the lower court cannot set
aside a verdict, however unreasonable,
. If there Is any evidence at all to sup
port It. Hut as we have seen above,
the Supreme ourt Is vested with he
power to re-examine the questions rf
fact found bv the Jury and if. In the
' opinion of the court, the Judgment is
wrong, it can correct It.
Judgment In. Iu.!cs Verdict.
While the word Judgment Is nsed In
' this amendment instead of verdict In
j the foregoing provisions. It must be
i supposed to Include the verdict, for It Is
f the verdict that Is affected by the evt-
rlence primarily and not the Judgment.
: The Judgment is only a conclusion of
"law from the facts determined nf the
verdict, and It has been held and has
YOUR TEETH
Deserve Your Best
CONSIDERATION
Prompt attention will save larger
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it is possible to produce first-class
work.
BBXDOE WORK Not the un
eertain kihd that in a short time
may place your mouth in worse
condition than when you had the
.
Dr. M. S. Bennett, Manlier.
Dr. B. E. Wright.
work done, but perfectly balanced
brides without plates, that fit per
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Plate! that won't disfipure you,
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plates that will give you genuine
comfort, improve your appearance
a thousandfold and probably last
the balance of your life.
READ OUR PRICES:
22-Karat Gold or Porce-
lain Crown for. $5.00
22-Karat Bridge Teeth,
guaranteed, each $3.50
Gold or Enamel Fillings,
each and np $1.00
Silver Fillings, each and
np .50
Good Rubber Plates,
each $5.00
Best Red Rubber Plates',
each ...$7.50
ALL 0TJB WORK 13 GUARANTEED.
DR. B. E. WRIGHT
PAINLESS DENTISTS
M. S. BENNETT, Manager.
342 1-2 WASHINGTON ST., COR. SEVENTH
0FTICE HOURS A. M. to 5 P. M. SUNDAY 9 A. M. to 12.
Phones A and Main 2119. Fifteen Yean In Portland.
been the practice n this stste not to
order a new trial where there Is no
error affecting the verdict but where
the error consists In rendering a wrong
Judgment on the verdict. In such case
the Supreme Court baa merely ordered
a correction of the Judgment by direct
ing the lower court to enter the proper
Judgment called for by the verdict.
It -must be noted that the provisions
referred to above concerning the power
of the Supreme Court are to be In ef
fect only until otherwise provided by
law. The Legislature, therefore, has
power to change these provisions and
to settle for Itself the practice to be ob
served by the Supreme Court on ap
peals In actions at law.
Yet Another Change.
The amendment changes the Judicial
system In another reapect. Heretofore
the Circuit and County Courts, as well
as county offices, were constitutional
courts and offices and were not subject
to chsnge by the Legislature. The new
amendment leaves only the Supreme
Court as a constitutional tribunal. I do
novsee how that Is any more alarming
than any ofher provision of the pres
ent constitution under the Initiative and
referendum, for it is Just as easy to
pass a constitutional amendment aa to
- i t . I- rAt.ri hv the same
power, in the same manner and by the
same vote, and tne courts i
more subject to change than before tills
amendment was passed, except that the
legislative assembly as well as the peo
ple's Legislature may create courts and
distribute their Jurisdiction aa it may
choose to do.
However, all these matters must do
determined by the Supreme Court after
the aid of argument by counsel, and It
may be that the Court may not reach
.... - .Ani.hi.lnn a a I do. That has
happened heretofore more than once.
The provision tor a Termc oj .
. .a.. ih. headed the title, and
1UU11II V. J f J .. -
doubtless secured msny votes for tne
measure. Thai pari 01 ine emenuracn.
la free from doubt. I think It will be
found to be sstlsfactory.
HALF ONJIBER FAIL
PHYSICAL. DEFKCTS BAR MANY
WOII.D-BK POLICEMEN.
WORKING FAITH IS TOPIC
Founder' of Holy Cross. Order to
;ive Noonday "Talks to Men."
Father J. J. O. S. Huntington, found
er of the .Order of the Holy Cross, has
been secured for a series of 10 "Talks
to Men" In the convention hall of the
Commercial Club from Monday unUl
Friday this week, and In the basement
of the Railway Exchange building, on
Stark street.-the week after..
These addresses will begin at 12:10
P. M. and end at 11:. 4. They are de
signed to afford business men whose
Interest in Father Huntington has been
arouaed an opportunity of hearing htm.
The general toplo will be -Wanted, a
Working Faith."
Father Huntington came here three
weeks ago with Father Rodger Ander
son to hold parochial missions In Port
Hand. The mission at St. Stephen's
pro-cathedral has already ended, and
the mission at St- Mark's Church be
gins this morning.
Father Huntington delivered a short
address last week In the Y. M. C. A-.
which aroused Interest among business
men of all denominations.
Teal to Re Repaired.
When Ice stsrts In the Middle Colum
bia the latter part of this month, the
stesmer J. N. Teal is to be hauled out
and repairs msde to her hull, while a
new shaft is to be Installed and her
engines overhauled. The steamer Twin
Cities is to be bsuled out at Celllo
shortly and given an overhauling, so
that the fleet will be In condition for
next season's business. The stesmer
Inland Km pi re was expected to enter
the Snake Kiver yesterday on her first
Fall trip to Lewlaton. which she will
reach tomorrow.
Firemen Find Mental Examination
Comparatively Kay Daring
Leap Sometimes Bothers.
Approximately only 60 per cent of
the men who take the physical exami
nation conducted by the civil service
commission for applicants for the posi
tions of patrolmen and firemen are
without defects that prevent their en
tering the city service. It Is believed
that if many men were not restrained
from taking the examination by rea
son of physical defects, known to them
beforehand, the percentage of failures
would be even much greater.
But few of the would-be firemen
fall to get their names on the available
list of the civil service commission if
they pass the medical examination sat
isfactorily, for the mental examination
la not severe. This is not the case,
however, with men who strive to enter
the police service of the city. The
records at the City Hall show that out
of every four men who apply to be
listed aa policemen, only one passes
both the medical and physical examina
tions. About 50 per cent fall to pass
the physical examinations, and only
about half of those who are found to
be physically capable of taking up the
work are able to pass the mental ex
amination. At the last examination for firemen,
completed Saturday, an example Is
found In regard to the way the ap
plicants are weeded out during the ex
aminations. For this examination
there were 89 applicants. Out of that
number only SI appeared for the ex
amination. When the physical exami
nation was completed, there were but
2$ remaining who were permitted to
complete the tests. One of these
dropped out of his own accord, and the
17 who entered the written examina
tion were accepted as ellglbles.
The athletic tests the candidates for
the position of firemen were forced to
take Include the following: Climbing
an Inclined ladder, five rungs, hand
over hand, four credits being allowed
for each rung; carrying a dummy
weighing 1.5 pounds up and down an
inclined ladder: running 80 yards, if
done tn 11 seconds. 20 credits are given.
If done in 14 seconds. 10 credits are
awarded, and If the applicant requires
It seconds, he gets but 6 credits: climb
ing an aerial ladder "0 feet, and Jump
ing Into a net from a second-story
window. The two lsst mentioned feats
are Intended to test the applicant's
courage, and it Is not Infrequent that
a man refuses to attempt one or both
of them.
MILLER SUES ANTAGONIST
Bill of Alleged liamages Includes
$ 1 000 for a Beat lng.
George Miller and Henry Napier, the
former a driver of a garbage wagon,
the, latter superintendent of the ere- '
matory. are likely to fight out their
legal difficulties in the circuit "Court.
Miller brought suit through his at
torneys. Charles J. cVhnnbel and F. t:. I
Mackay, In tne circuit roun yesierasy
for the recovery of 13000 damages.
11000 of which Is for a beating he al-lea-ed
Napier gsve him November 9,
11500 for false arrest and Imprison- j
ment and $300 for the loss or rii time,
expenses for medical treatment, and
for the employment of counsel.
Miller ssya the road was bad. and
when his wsgon became Imbedded tn
the mud. Napier and others assisted
htm. He complained, and Napier told
him to go to Mayor Simon. Then he
went Into Napier's office, and declares
1
By -making large purchases we are able to offer for the Holiday Season a few specials for children's use tnat are
within the reach of any purse. Our other lines are also complete and prices are marked down to the lowest notch.
Brass Finished Doll Bed
$1.25 Value for 69c
wIPv S125
WITT
Only two hundred of them, to make
two hundred little ones happy at a
trifling expense. Read the descrip
tion. Complete Doll Bed, with mat
tress, pillows and canopy of flow
ered cretonne; size 18 inches long,
11 inches wide and 15 Inches high.
Constructed of unbreakable brass
finished steel rods, exactly like
illustration. Can be
folded perfectly flat.
69c
mm
s2 75 Child's Morris Rocker si 25
Made, of solid oak,' golden or mission finish. Rockers can be taken (t - OC
off, making a chair just as shown in picture. Only a few of these at.V
$5 Desk
and Chair
for $2.95
For children, . but not so small
as the price would suggest. No
tice the size. Desk is 28 inches
high, top is 22x17, and can be
raised, showing compartment for
books underneath. Desk and
- chair are both solid oak and are
very useful to children of 3 to 7
years ' old.
Buy One This
Week for Your
Baby's Christmas
Remarkable Value in
Oak Library Tables
I : !v" - --- . v,
r;. W - . s ,..
$12 Table Only $7:98
LIKE ILLUSTRATION
Mission or eolden finish, in solid oak. Not a little table,'
either. It is 42 inches long, 24 inches wide and the usual
height. Has good drawer, with shelf under
neath, as shown
$7.98
Christmas Gifts
May Be Purchased
Here on
Easy Payments
i
Oo o d Place ToJTra da
I credit Ri 41 .Jf", &n
SOv yy- li i-a-a. aa iiIW.sj- la I' I ill i .
'mm
y jfiaw "i .
For Christmas
Foot Stools, Magazine Racks, Parlor
Cabinets, Clocks, Rugs, Tabonrettes,
Medicine Chests, Mirrors, etc.
he was struck over the head with the
butt of a revolver until his face
was bruised and bleeding; from seven
wounds. Later he was arrested but
acquitted in Police Court on an assault
charge.
Saloon Men Are Loecrs.
OLYMPIA. Wash., Dec. 3. Saloonmen
whose plares have been closed as a re-
sult of the recent local option election
are not . entitled to rebates on the
money paid for state licenses, accord
ing to a ruling made by the Attorney
General's office today. The Attorney
General holds that the licenses may be
transferred to other persons and to
other units, but that no money can be
paid out of the treasury unless author
ized by the Legislature.
The only hope left tire saloonmen is
the . passage of special relief bills by
the next Legislature.
Stamp Sales Again Lead.
For the second time in three months
and the second time since the Klondike
rush began. Portland leads Seattle in
the total of postal receipts for one
month. In November Portland sold
postage stamps to the amount of t84,-
913.47. and Seattle $80,636.99. Seattle
made an increase of 4.06 per cent for
the month as compared with the same
month last year, and Portland's gain is
26.41 per cent on the same basis.
Portland's- Postoff ice sold a larger
amount of stamps than Seattle in Sep
tember, but in October Seattle again
took-the lead, which was 'again sor
rendered in November.
o
NATIONAL ADDITION
"THE INDUSTRIAL CENTER OF THE PACIFIC NORTHWEST"
The place where you are going to live sooner or later, because it is where all the manufacturing enter.;
prises are locating. You might as well select your homesite. at NATIONAL ADDITION now, while
the prices are low, as every day brings new developments to KENTON, which increases the values
of Burrounding property." Even though you-do not go to live in NATIONAL ADDITIONright away
vour lot will be increasing in value all the time. Then, too, if you are employed at KENTON you wiU
"not want to continue on with the old renting place, which necessitates getting up 2 hours earlier in the
morning, carrying a cold lunch and quarreling with the streetcar conductor because he was late to say -nothing
about the carfare expended, which would more than pay the mterest on your lot. NATIONAL
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DONT HESITATE ANY LONGER- COME OUT TODAY. Don't let another opportunity pass
by without taking advantage of it.,
Our automobile is at your disposal any hour today (SUNDAY) or any other day. Call us up at
anv hour and we will be glad to take you out. Understand that this does not obligate you to buy. ,We
want you to see NATIONAL ADDITION.
Terms 10 per cent down and 2 per cent per month.
Fill in the coupon below and mail it to us and we will mail you literature descriptive of KENT0N
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CO-OPERATiV
520 Railway Exchange
E REALTY CO.
Marshall 2248 A 1274
COUPON."
CO-OPERATIVE REALTY CO.,
620 Railway Exchmnir, Portland, Oregon.
Gentlemen : A
Please mall me litermture deacrlpthre
of Kenton-Natlonal Addition.
Kama
Address - - '
A