THE" OREGON DAILY JOURNAT. PORTtANP. SATURDAY BVBNINO. NOVEMBER WIPES OUT POOLROOMS (Continued from rag One.) gambling out In every form, and that the charter of the city oe even far ther than the statute by empowering the city to take additional steps to prevent the gaming avll. Decision em Bouiw. ' The decision la given on the demurrer to tha answer of Sheriff Word to Neaae'a Injunction suit, aa prepared by Attor ney Henry K. McGinn. After reviewing the conteotlona of the parties to the suit. Judge Oeorge laya down speelflt lly tha oolnta Involved. Hla opinion deals with English and common law. the statutes of many of the states, supreme court decisions, tha Oregon codes and the charter of the city of Portland, and la fortified by reference to numerous authorities. The main question presented. he ays, "la whether conducting pool-selling on horse races la violative of the atate lawa against gaming or gambling, or violative of section 1930, prohibiting any act grossly disturbing the public peace, or which openly outrages public decency end la injurious to public mor ale. , "In Oregon we have no common law offenses, and must look to oar statutes entirely to see what crlmee are pro hibited. We may look to the common law for deflnitlona of crime, but not Circuit Judge M. C. George. for crlmea themselves. We hsve no statutes In terms defining gambling, but we have a gambling statute, passed In 1171, entitled 'An set to prevent and pun ish gambling.' Gambling or gaming at common taw was not an Indictable of fense, so ws have no common law defini tion of gambling aa a crime." After quoting the definitions of gam bling given by Webater's and the Cen tury dictionaries, and Rapalle A Law rstios's law dictionary, the coir yj raws attention to the fact that "Whins houses were indictable aa nulsancea at common law, because, as Bishop says, "Persons, especially young persons, are attracted there and lured to vice." Giving the provision of the gambling statute of 1876. Judge George asserts that In many waya It seeks to hamper the commission of such crimes by af fording remedies to losers and avoiding notes or conveyances In consideration thereof, punishing owners of buildings or places for gambling, and avoiding all leasee therefor. "The gambling statute distinctly says," declared the court, "that It shall be the duty of each district attorney, sheriff and constable, city or town mar ahal and police officer to Inform against and diligently prosecute any and all persons whom they shall have reason able cause to believe guilty of a vio lation of 'any of the provisions of this act, and a refusal or willful neglect on their part Is made a misdemeanor and punishable, even to the loss of their office. Sheriff Conservator of Peace. Ke. ti.in 1017 nrovldea that the sher iff is the conservator of the peace, of the county, and It Is his duty to arrest and commit to prison all who break the peace or attempt to break It. and all persons guilty of public offenses, and to defend his county against those who endanger the public peace or safety. "Om state constitution says that lot teries and tha sale of lottery tlcketa for amy purpose whatever are prohibited, and the legislative aasembly shall pre vent the same by penal laws, and auch have been passed, with severe penalties. Some authorities have held pool-selling on horse-raolng a lottery." The court continued by saying. In re gard to lotteries, the new city charter supplements the state law. the city coun cil being given Jurisdiction to points four miles outside the city. Not only may the city authorities take the same steps as etute officers as regards gamb ling, but they are empowered to take away all furniture and paraphernalia used In gambling, something the atate officers are not authorised to do. "It Is contended," said Judge George, "that In construing our penal statutes on gambling, general words following a specific enumeration of nbjecta or things whlrh are prohibited will be held to In clude only such things as are of the same kind as those epeclflcslly men tioned. But in Swigert vs. the People, lit 111., where they construed the Illi nois gambling statute, whtoh Is some what similar to the one In Oregon, the court held that horse-racing might be s game, and while recognising the rule of ejusdem generis. It held that the things enumerated hi the statute of Il linois were not of the same kind, and that the Illinois statute wss Intended to prohibit sny game for money or with anything used for the purpose of losing or winning money. "When It comes to the statuter and ths decisions of our courts the book are full as t the evil tendency of gambling rid gaming to corrupt morals and to ruin fortunes. In this case, If It Is made to appear that the plslntlff is seeking to have m court of equity ex tricate him from any difficulty In which he has entangled himself by gambling Or by running a gaming house, a court of equity may leave him where It finds Mm snd not use the extraordinary power of Injunction to help him out. OemaeU Cannot sVlnaaso gambling. "A main question arising Is whether the plaintiff is protected by his liquor license If this were the only question, this court would hold thst the city charier gave the common council a right to license saloons for the sale of llquora within the city. "A serious question, arises, however, aa to the validity of the city ordinance llevnsina: pool -selling. Ortaln It Is that f pool sailing or maintaining a house for selling wagers en rases Is a breach of gamine, that than the common coun i II of the city of Portland haa no power or authority . whatever to license the bBbwsst BNrtSmmmmmmnl SBSBSBSJV'-.Tv'' V BSammm iemv Bsa-. " ,,39 FJ I business by virtue of any ordinance, and licenses thereunder could be do Justi fication or protection In law to plaintiff. This court has. In effect, held this In the ease of the Bute va Peter Grant et aL. formerly decided. If pool-selling be gaming, as mentioned in the elty charter, then equally the elty has mo power other than to prevent and suppress It sot to license It. "If running and maintaining a pub lic pool-selling house, whers wagers are sold on horse racing. Is not strictly gambling under our statute of 137. yet under the authorities It may be held to be gaming, and aa such, not only unit reusable by our city council, but also under the common law construction as constituting a gamins; house, which was a nuisance under the common law rule, and that such was Intended by our leg lslsturs to be. and that the same Is In effect, an act disturbing the publlo peace' or 'openly outraging public de cency and Injurious to public morals,' under section 1930 not that It Is pun ishable as a common law offense, but that our statute, under that section, has made a common law rule a statu tory rule, and punishable If conviction fecurs. "It was claimed on the argument that the city of Portland has said that pool- selllnsr houses are not against publlo morals, but ths city has never been in vested with any sucn power or au thority. It was also argued that the city bad been given full state police power, but the answer is that the po lice power of the state la for the pub lic benefit, and is to be exercised for and not against ths public welfare and morals, Plain TloleUon of Saver. "It was also said in the argument that that cannot be a nuisance which the law haa authorised, but the charter law does not authorise the elty to say that gassing houses are lawful or that gaming at all is or shall be lawrui. And the city cannot legally license either gaming, gambling or gaming houses by ordinance. "In view of the prevailing decisions of this state and of sister states and the, well defined public policy of our statutes, this court must hold that pub llo places where there Is maintained as a business gaming or gambling on horse races in Oregon or in any other state, exist In violation of law, and are in that 'respect outside of Injunctive relief In a court of equity. "Plaintiff admits that his purpose in securing an Injunction against the sher iff Is to reopen his pool-selling rooms. and auch would be the effect of an In junction order of this court. A court of equity cannot aid such a purpose. "An equity court may be asked to abate a nuisance but hardly to aid in Its continuation, and though a court might or might not be able to say, as a pure matter of law. that plaintiff was maintaining a nuisance under section IttO. yet It may reasonably be con tended that a Jury could be able so to decide, aa to a mixed question of lsw and fact, possibly largely of fact "While horse racing in this state Is not unlawful, yet it by no means fol lows that gaming on horse races Is. for that reason, a lawful business. Betting on bors racing may not of itself be in violation of law. and there may be more or less mitigating excuse for It under the excitement of presence at the actual race, but the evil of maintaining a gaming- house In the midst of this elty. coolly to lure or sntlee the cupidity of the ordinary person Into gambling for the chance of wltmlg or loalng on aome distant race. Is. even conceding It not to be a violation of statutory law, so subversive of public morals as to stay ths arm of any court of equity when asked to enjoin a sheriff from Inter fering with such gaming establishment. "Poolroom gambling Is certainly morally as bad as any other form of gambling. The element of chance en ters Into It the same as In any other form, and floe distinctions as to whether this or thst constitutes any other "de vice" may be sst to one side facing a statute which punishes any aet which 'grossly disturbs ths publlo pesos or which openly outrages public decency and Is Injurious to public morals. Ths law is against subterfuges on matters of 'devices.' and centalnly a court of equity Is not called upon to aet by Injunction, if there Is any quesUon of unlawfulness under ths gamine policy of the law of the state. "in general an Injunction will not be granted to restrain persons from acting aa publle officers except In very clear cases of an Injury. Immediate and pressing and irreparable, and this Is not a clear case. "The chsrter of the city of Portland la the Isteet expression of the legis lature of this state as to gaming houses and the prevention and suppression thereof. Its strong features. In regard to city officers entering gaming houses and arresting all persons and seising all Instruments and destroying the same, may reasonably be read In pari-materla with the provisions of the stste law. and certain It is that the state law made It the duty of the sheriff to Inform against and diligently prosecute sny and all persons whom he shall have reasonable cause to believe guilty of violating the gambling or gambling nuisance laws of this state, and empowered him, as the county conservator, to defend his county against those who endanger the publlo peace or safaty. "But be that as It may. this court now holds that on ths present showing. It ought not to interfere with the sheriff by any restraining or Injunction order In the premises. "The-platntlff admittedly has entan gled himself with a questionably unlaw ful business, snd a court of equity must leave him and the sheriff where It finds them. wo Belief la Bqaity court. "Equity will not" issue any Injunction to aid plaintiff In continuing a pool selling house, but will leave the whole mstter to law remedies snd to the law side of the court. Let the demurrer to, the answer of the defendant sheriff be overruled and the application for an In junction be denied." Judge George explained that his opin ion was not to be considered binding ss refirds the law points In future cases which might arise. Us submlttsd s written opinion covering the main points and giving his authorities. "Naturally. I rejoice over this de cision," said Sheriff Word "I fully ex pected It. because If I had not thought I was in ths right I would never have seised the Warwick premises. My past record Indicates what my procedure will be as regards gambling from now on." Attorney McGinn said he confidently expected such a decision from the court. He says his opinion that conducting a poolroom Is In violation of law was firm from the beginning. 'It Is a strong and able opinion." said District Attorney Manning. "every thing practically Is left to the law side of the court, which Is as It should be." SOBBEM OACm TOVWD. (Special Dlapstrk to The Journal.) Wallace. Idaho. Nov. 19. Officers lo cated the ceche of Lewis and Pry. ac cused of the robbery of the Thomas Liquor company. Cartridges and money were found. iavmoscbu. I Journal Special SerTiee.) Kiel. Nov. 19. The battleship Deutschland, (he Isteet addition to the German navy, was successfully launched hare today. L'svp.jsBv1 timtoir' r ROAR OP ARTILLERY BEARD IN MUKDEN Sound of Cannon Gives News of Battle on the Shakhe River. ALL'S WELL STILL, IS STOESSEL'S REPORT Hand Grenadee and Bayonets Repulse Japanese Assaults at Port Arthur. (Journal Special Berries.) St. Petersburg. Nov. 1. (Bulletin) A telegram from Mukden says It is be lieved thst an Important battle began on the Shakhe river as the echoes of terrific cannonading Is heard at Mukden. (Journal Special Sarrlce.) 8t. Petersburs. Nov. 19 Qeneral Stoessel reports that all attacks of the Japanese between October 36 and No vember I have been repulsed, and ths enemy's loss Is estimated at, between 7,000 and 10,000. October SO, the Jap anese were repulsed by bayonet charges and the use of hand grenades. RUSSIA'S FORCES. Half Million Mem aad Fifteen Xundrsd , anas in Maanharla. (Journal Special Sarrlce.) St. Petersburg, Nor. It. It Is officially announced today the Buaslan troops In Manchuria now number (70.000 with 1,5(3 guns, and In three months there will be 888.000 troops with l.xrs guns st the seene of operations. Of this num ber 602.000 men and 1,196 guns will be In active service, ths rest In fortified position alone the lines of communica tion and as auxiliary forces. SQUADRON DEPARTS. Warships Aocompaay Sapplemsntary Fleet. Battle (Journal Special SerTiee.) Copenhagen. Nov. 19. The supple mentary division of the Russian. Baltic squadron, bound from Llbeu to the tar east, departed this morning from Lange land Island, steaming northward through the great belt Two Danish war ships are accompanying the division. MAY CAPITULATE. ray to Port Arthur. (Journal Special Service.) Rome,. Nov. 19. A dispatch from St Petersburg states that the csar has asked Gen.' Kuropatkln to request . Marshal Oyama to facilitate the passage of 1 a Russian envoy to Port Arthur to dic tate negotiations for the capitulation of the port. TO WATCH equAsmov. (Journal Special Herri re ) Simonstown. Cape Colony. Nov. 19 The British cruiser Barrosa has sailed for Wulfish bay. on the west coast of Africa, and It Is believed she Intends to wstch the Russian squadron that la bound for the far east PORTLAND TRUST CO. SELLS SPOKANE LAND A sale of real estate which means more to Portland than Is seen at first glance, was that of the Lindelle building, at Spokane. The building Is one of the largest in that elty, and has a frontage on three thoroughfares, Riverside ave nue, Spokane avenue and Washington street. The building wss taken by the Port land Trust company on a mortgage, and was sold yesterday for 9130,000 to Dr. T. Ham. Mrs. Judith Ham and Mrs. Elizabeth J. Watson, all of Spokane. By the sale of this property the Portland Trust company will net a handsome profit, as It was carried on the company's books at a much lower figure than the price obtained. The sale of this property will mean much to the elty, as the en tire sum will now be invested here. The company making tha sale Is the same that disposed of the property on Seventh. Park and Morrison streets about a week ago to Charles Sweeney of Spokane a coincidence. The sale also shows that Spokane Is growing and property valuations are higher. TO MARKET OREGON APPLES IN THE EAST (Special Ptapstrb to The Journal.) La Grande. Or.. Nov. 19. One of the leading fruit growers of the Grand Ronde, K C. Carbine, has gone to New Tork and other eastern ponta to look up a market for first-class apples, grown here. Many cars are being pre pared for shipment there to himself If prices are suitable. ITALY IS READY FOR PEACE CONFERENCE (Journal Special Berries.) Washington, Nov. 19. The state de partment received word this morning that Italy has accepted In principle the proposition for another peace conference at The Hague. (Special Dispatch to The Journal ) Colvllle. Wash.. Nov. 19 -Mrs. An gel in a Heath, aged 71 years, died here yesterday. CONSTIPATION Best For The Dowels 'Wg)aw' i res uuweis CAMowcATtuirne Sterling Remedy Co.. Chicago or N.V. sea AIIUAL SALE. TEI MIUIOI I0XES For OTsr nine rests I .nff.rM with rhronle eon tlpation and serine this time 1 had to Saks aa in Jar II on of warm wattr eaea etart H hoart before J-J!1!"" aetloe on mj bowel. Happllr I triad fa.-ar.t.. and today I am a well man. Dsrteg the atse years before I mad Caetareie I nffar.d untold aalaery with Internal pllat. Thank, to yen I am frae from all that th la morning. Toe tan as thla Is behalf of. a Serine humanity." B. r. Ftaher, Ruaaoke, 111. DOES NOT FAVOR WORKINGHEW'S BANKS Federation of Labor Votes Down Resolution Against Employ ers' Association. (Journal Bpselal Berries.) Ban Francisco. Nov. 19. The Federa tion of Labor this morning voted down the propositions to establish working men's banks and to settle Jurisdictional disputes by the allowing the workers to exercise Individual choice In the mat ter of affiliation. A lone resolution In tended to atate the principles of federa tion as a rebuke to ths employers' asso ciations was rejected. It was held that auch action would be taken as a sign of weakness. The convention also put Itself on record as against the estab lish men t of a national arbitration board to be appointed by the secretary of labor and commerce. Congressional bills pro viding for the abolishment of child labor and to prevent competition be tween army and navy musicians and civilian' musicians were Indorsed. The St. Louis Typographical union this morning extended an Invitation to the convention to hold Its next meeting In the Missouri metropolis. RED HOT SESSION (Continued from Page One.) talned a demurrer to the complaint filed by City Attorney McNary. In a review of the oase this morning, he said his notion had been taken under a misappre hension of the facta. Investigation 8 ho wed that fraud had bsen charged. It being- alleged that poor materials had been used, that the quantity of each material prescribed In the specifica tions had not been used, and that tha work has been done so poorly that the "Improvements" were In bad condition before the work was finished. "These charges of fraud must be an swered by the city." said Judge Oeorge. "The city is supposed to oversee work of this character and must be responsl ble If property owners can prove their charges." The opinion will govern the conduct of a number of other cases In which fraud is charged, and, according to Attorney Dunlway, several suits yet to be brought A Card Prom the - Portland, Nov. 19. To the Editor of The Journal: In behalf of the special committee of the common council ap pointed to Investigate the Tanner creek sewer, I desire to state that the criti cisms appearing In your paper concern ing the met nods pursued by the com mittee la the Investigations thus far made of said sewer are exceedingly un just and do not state the facta. The committee has taken the only course that would Insure getting the facts In the case. The statement that the proceedings were kept secret Is not true "except as to the public press; all property owners were welcome to at tend .the Investigation made yesterday and to participate therein after the com mittee had finished examining wit nesses. Some of Portland's most prominent citizens were present throughout the en tire meeting, and It was explained to them that it was the desire of the com mittee that full investigation should be had and that Justice should be meted out to all concerned, and that the prop erty owners present had bsen Invited to bear witness to that fact, and that in the opinion of the committee It was un wise snd Improper to civs sny Infor mation or reports to tha newspapers be fore the same were presented to the common council which had directed the Investigation. Every fair-minded per son must admit that it would be unusual and Improper to publish our reports In the public press before presenting them to the common council. The publle will at the proper time be -fully advised through the press of the entire contents of the experts' report, ths explanation made by the city engineer and his as sistants, and also the report of the in vestigating committee. Until that time arrives the committee asks ths public and the press to suspend Judgment. The committee will not whitewash any one connected with the const run ion of the aewer either as contractor or In any other capacity who is In any way guilty. The committee desire to sdvlse the publlo at this time through your paper that It has resolutions already prepared authorizing it to investigate the con tract for constructing the Morrison street brides; the Willamette heights bridge snd ths South Front and First street bridges; the improvement of Sal mon street and tha method of purchas ing supplies for. the fire and other de partments of the city. These resolu tions will be Introduced at the adjourned meeting of the common council to be held next Wednesdsy. snd ss soon as possible thereafter the committee will call to Its sld some of the most promi nent citizens of the city to assist it In thoroughly investigating all these mat ters. This ought to put an end to whitewash talk for ths present. I. ZIMMERMAN. Chairman. Committee. CUTTERS AND TAILORS OF CHICAGO WALK OUT (Journal Special Service.) Chicago. Nov. 19. Mors than f.OOO tailors snd SOO cutters walked out of their shops this morning In order to compel the manufacturing tailors to sign a renewal of the present agreements providing for closed shopa The union scale of several thousand other employes of tailoring conoems Is affected. The Employers' association Is backing the manufacturers, and a bitter struggle is predicted. A conference of both sides of the furniture wagon drivers' strike is -to be held today In order to effect a set tlement If possible. EXTRA SESSION MAY TAKE UP THE TARIFF (Journal Special Berries.) Washington, Nor. 19. It Is officially announced at the White Houss this afternoon that the president will not discuss tariff revision In his forthcom ing message to congrsss, but later will probably consult the leading members of both houses as to ths sdvlsablllty of such legislation If advisable, he will eall an extra ses sion about April 1 to take up the tariff. The president personally believes there should be an overhauling of schedules, but will act In sccordanee with ths pre vslllng sentiment of congrsss. SHE PREFERS DEATH TO STATE PRISON Driven to despair ever tha thought of serving a sentence In the penitentiary. Krankle Woolrldee. colored, convicted of perjury, tried to commit suicide st lha or., i r. . i tail ttila mnrnlnff flhe mm discovered In flms. The loss of a few minutes would have m scant her death. The writ of mandate Issued by ths supreme court, which recently affirmed phSraph attssPaSBBxel MKKKff-- HsjisSsmmmaifl Ww st5aV Saaaasfl W X)f ssf V m, ' '"S&hmbttRm I w" arsarsWaSsKS BY CARRIER and you will get a COLUMBIA PHONOGRAPH Comparatively FREE ! Subscriber's Coupon of Inquiry To THE JOURNAL: Please send jour represents tive to my address, as given below, to secure my order for, ONE COLUMBIA GRAPHOPHONE, etc end THE JOURNAL under the terms of your special offer. Name ... Address .. By special arrangement with the Columbia Phonograph Company, 128 Seventh St., The Journal is enabled to make this extraordinary offer. Guaranteed to Be a Perfect Talking Machine the Judgment of the circuit court, or dering the sentence to be carried Into execution, came down.- this morning. Frankle heard she was to go to the penitentiary thla afternoon and became very despondent When Mrs. Moore, the matron, went to cell No. 5. In the women's department. with the prisoner a meal at noon today, shs found Frankle lying unconscious on ths bed. In her mouth wss one end of a rubber tube, the other being over the gas Jet, which had been turned on. Dr. McCornack. the assistant county physician, waa Immediately summoned, and after working over the woman for about a half hour managed 10 restore her to consciousness. She is very 111 ss the result of Inhaling ths gas, and will be kept under close espionage until she la turned over to the penitentiary officials at Salem. STOLE YESTERDAY; IN PENITENTIARY TODAY (Bsacial Dlapstch to The Journal ) Colfax, Wash.. Nov. 19. Charles Mak ings, a farmer, stole two suits of clothes from a neighbor's house, was caught the same day. brought to Col fax, pleaded guilty and was sentenced to serve three years In the penitentiary, to which place he was taken this after noon. (Journal Special Berries.) Cincinnati. Nov. 19i An outline of the policy of the National Founders associa tion, which has been In session here the past week, has been given out. It dis approves of strikes and lockouts, snd for this reason will not srbltrats with men on a strike. The sssociatlon will also pay their employes according to ability. KCBZT1BT MOKTOZf TLJ (Xberoal Special Serrics.) New Tork, Nov. 19. While represent ing President Roosevelt at the dinner of the Society of Naval Architects and Ma rine Engineers at Delmonlco'a last night Secretary of the Navy Paul Morton waa taken auddenly 111 and forced to leave the banquet ball. His Illness, It Is ex plained, is not of a serious nature. f fi-'" wm emmurietos. (Journal Special Barries.) Rerltn. Nov. 19. News received here says that in a battle In Waterburg dis trict. German west Amen, svo tier reroa are reported killed. MAGNETIC HEALING Mrs. L. H. Hart Tonnerly of BOB AUaky BaUdlag, Whose suocess as a healer and teacher Is well known. Is acaln In Portland, at 111 Tourney building, A. O. V. W. Tem- fle, and better prepared than ever to reat and teach. Any one wishing a course of instruction in healing should call upon her before going elsewhere. Whether you take the course as a means of support or not. you cannot afford to do without it. It will save doctors' bills and you get valuable knowledge at a small cost. Many are the remarks: "The cheapest doctor's bill I ever paid. Been two, three or four years, as case mey be. and I have not paid out a eent for medicine." If all would but learn "How to keep well and help others to keep well." She Sves you a course In Psychology, Men 1 Healing. Magnetic Healing, Sugges tive Therapeutic, how to heal without medicine er surgery, Thought Force, Personal Magnetism, Intuition, Hypno tism, Clairvoyance. How to Overcome worry and disappointments, How to be successful In business. How to control your own lire. Tou can Join the class any time. Clinical work In class. 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The OeaasaUa PSISISIIJS Company will allow s Columbia machine to ths a mount of fB 00 st say time daring the tnie urapnenaoas as uew orsce. no. in aeeeaTs street. N. B Price et aU fetors records sa this contract, coats each, The Best $3.50 Shoe Do you know what's the best $3.50 and $4 shoe made? Not unless you've been wearing a pair of Selz Royal Blue shoes. They'll cost you three-fifty and lour; and they're so much better man mey cost; you'll buy another pair if the first ever wear out Yon can bow them bors, $3.50; special styles, $4. LION CLOTHING Outfitters to Man and Beys 166-168 THIRD STREET Mohawk Building 10 TO MEET the demand upon the "Sunday Journal" made by classified advertisers on Saturday, The Journal will accept such advertising which will be printed under proper classification up to 10 o'clock on Saturday night 21 Words for 15 Cents end a Valuable Premium Free 10 O'CLOCK SATURDAY NIGHT CALL AT THE OFFICE OF the Journal Fifth and Yamhill Strests, 't,Vi-.-'v " , i . . 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