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About The Oregon daily journal. (Portland, Or.) 1902-1972 | View Entire Issue (Nov. 15, 1908)
NORTH DAKOTA DECISION DOES - " J i PTMCT "STATEMENT NO. 1 " Frederick W. MulkeTforiner United : States senator from Oregon, head of the Oregon tax commission, which drafted 1 coma f the moat Important law now-j on the statute books, and prominent at torney of Portland, takes the stand that the Oregon- direct primary law and Statement No. 1 la not parallel to the law of North Dakota. - He contends that the decision of -the aupreme court of North Dakota declaring the primary law of the state, that pledgee exacted of members of the legislature are uneon ' stitutional, does not apply to the Oregon law in any way. .. Th two laws are entirely-different. M r. Mulkey contends, and in support of his argument he haa written a clear and xorceiul statement regarding vne mav tec in his letter, Mr. Mulkey says: , Holds Decision Is Sound. , . V Portland, Or., Nov. 14. To the Editor Of The Journal In compliance with ' your request that I give you my opin ion upon the application of the recent , decision of the aupreme court of North Dakota' upon the provision of the prr ; - msry law of that state, in as far as its primary law deals with the election of united States senators and the pledg- i ing of members of the legislature to support - the choice of the party for United States senator, to the primary election law or uie state or uregon upon . . the same subject, J desire to state .as an Introduction to my opinion that. In .my Judgment; '" ..' - First Tha decision of the supreme ,- court of North Dakota Is sound in every particular. ' .v . ...... ? y. .- , . Second That those parts -of the pri mary law of North Dakota which were held to oe unconstitutional ana voia oy the supreme court of that state are not contained in the Oregon primary law upon the earn subject, either by ex pressed language, by , implication or an- TUrd That the obiter dicta tt the supreme court of North Dakota in that : , part of its opinion which holds the pre election pledge or memoers ox ins legis lature to vote for the party choice for United States senator to be void and unconstitutional Is not unfavorable to the constitutionality of the Oregon law upon the subject . ri. - - " fourth -That the opinion of the su preme. court of North Dakota upon those portions of the primary law of that state that are analogous to the Oregon firimary law upholda the constitutional ly of the law in so far as it la within judicial pewer to pronounce upon the subject, ; . X .'.' ; i " ? Aa to the Wedg. , ,, -. The part of the primary law of North DsKOta which the supreme court of that state held to-be unconstitutional and void was as follows: - Section 4, chap ter 109 of the laws of 1907, which re- - Quires a candidate for legislative nomi nation t take the following pledge be fore his .nams could be placed upon the primary nomination ballot: , 1, th undersigned, a candidate' for - the oftioe of member of the legislative assembly of the state of North Dakota, , do pledge myself to the people of the , state of North Dakota and the people of my legislative-district, during. my term or office, I will support and vote for - that candidate for United States senator "i in congress of the party of which I am a member who has received a majority of such votes for that position at the f primary election " next preceding the election of the United Elates senator in 1 congress; provided, that in case no can didate of Bay party reeetvea 40 per cent of aU the votes cast for the office of United States senator of my party, then find in that case I pledge myself to vote ,l for the candidate of my-party who re ceives the highest number of votes of my party at the general "election suc ceeding such primary election." ! The court, very properly - held this pledge to be unconstitutional, because the constitution of the state contained - all lue qualifications for holding office, and to reqwre the candidate to take an additional statutory qualification before his name coald be placed upon the bal- lot contravened the organic law upon the subject and was, therefore, void. In una respect tne opinion says: ) -- -"It the provisions of the act (section 4), requiring said oath and pledge, con flict with section 211 of the constitu tion of this state, then of course, those portions or trie act are null and void. We think it slain that they do thus con flict, as they add another oath, declar ation ana test as a qualification for the office" So Effect on Statement STO. X. But this cannot be considered a de cision from which it can be concluded that the pledge contained In the Oregon primary law (Statement No. 1) is un constitutional, because the statute pro viding for the Statement No. 1 pledge does not make the pledge a qualifica tion for office. A legislative' candidate is not required to take the pledge to vote for the choice of the people before his name can be placed upon the pri mary ballot. He may, however, within his own , discretion, take either State ment No. 1 or Statement No. 2 that is, he ma- regard the choice of the people merely aa a recommendation, or he may take no pledge at all. The law being specific upon the point In that it leaves it all to his discretion. As to the obiter dicta of the North Dakota opinion that declares the pledge under the law of that state to be Un constitutional and Its application to the Oregon primary law, which, as I have said, does not contain the pledge as a qualification to hold , office, the court says: v : "We shall assume for the purpose of this case that If these contentions are sound, the writ should issue, although we confess our inability to understand Just how the writ prayed for, can, If issued, operate to undo what has al ready been done by defendant pursuant to this law. The 'candidates for the legislature have long since taken oath, and made or given the pledge exacted of them by sections 3 and 4 of the act, Such a pledge at most merely created a moral obligation, to fulfill the same. If the law under which the pledge was exacted is held void the moral obliga tion will still continue, and no judg ment of a court can obliterate It. It would seem that the court do not and cannot deal with mere- moral obliga tions." -. Moral Obllfatiou Becognlied. ' Had the court Used the term "political obligation" or "political responsibility" In place of "moral obligation" the lan STUaee Would have been more unnrnnrl- atsv-r In any - event, whether- the .term moral obligation or political obligation be employed. It Imports the laying upon tne One .that takes the obligation the performance of duty: which duty, how ever, la not enforclble by a court of justice. In other words, a duty the per formance of which cannot be compelled or the breach of which cannot be re dressed by the Judicial power, but which can, however, be redressed but not en forced by the political power. I have referred to the fact that In the North Davota case the provisions of the law analogous to the Oregon law were held to be constitutional. Those pro visions are the ones that permit the names or canaioates ror the united States aenatorahlp to be placed 'upon the' ballot in order to uDmlt to the de termination of the voters their choice ror united ' mates senator. Jboth the North.ilnkota, primary law and the Oregon primary law contain such pro visions, to ascertain the party choice, while the Oregon law goes a step fur ther and under its general election law seeks to ascertain the people's choice as, between the candidates of each party firevlously selected under the primary aw. In legal contemplation, however. tnere canoe no amerence as tne rea soning in the - North ' Dakota prlmarv law case Is .fully applicable to the provision found In . the Oregon general election law. The ana lo sty In this re spect Is .complete, j ', Wna Xg Constitutional. The sunrema court of North TnVnf says on this point: "We conclude that the "requirement of such a pledge vio lates section 211 of our constitution la' that ft exacts an additional test In con travention thereof. Hut does It neces sarlly follow from this that all other portions or chapter iv relating to me election of United Statea senators and giving the electors of each psrty an op- fortunlty to express their choice for he candidates for such office are also voidt Wa think noL The Died ft e re quirement is but-one step to effectuate the main object sought to be accom plished, to-wit, the selection of a Uni ted Statea senator in accordance with the choice' of a maloritv of the mem bers of the political party with which ne aiiiuates. - - - n umcr words. . the nrorlaion of 'this law per mitting en eirnreaalon of the DartV will as to United States senators. If consti tutional, (held in this case to be consti tutional! timet atanri even thourh the firovlsions requiring a pledge from the eglalatlve candidate that he will abide by such expressed will cannot stand be cause unconstitutional. . - "This logically brings us to a consid eration -which Is that the entire act. as far as it relates to candidates for United Atfitpii aenatnra la void under-the; constitution of the United States Much of the argument of relator' counsel upon this branch of the case Is based upon the assumption that the pledge feature of the law when considered In connection with the provisions permit tint the members of each political party to designate their choice as to senator ial candidates, la effect operates as an election of united states senators oy Popular vote Instead of by -the legtsla ure as the federal constitution re quires If, therefore, the pledge feature of the statute Is eliminated because unconstitutional much of counsel's ar gument ceases to have any force It certainly cannot be contended that the provisions permitting the voters of each political party merely to designate their choice for senator amounts to an elec tion of such senator, as it amounts to nothlna mora than the rlftht of petition. a right of which they cannot be de prived. Tne legislative memoer is in no ' manner obligated or required, ex cept perhaps morally by reason of party support ana realty to vote ana support a candidate of his party's choice thus expressed.'- i Names on Ballot TTpheld. From this tt must be concluded that under . this decision the name of the nnrtv'a candidates for the nomination of United States senator under the Ore gon law can be constitutionally piacea UDon the nrimary ballot to ascertain the candidate who Is entitled to party sup port and this as a basis for the moral obligation to support tne candidate the right being guaranteed under the rignt to petition, ir mis De true can It not be said if there be not legal in terference with party integrity that the same can be done by placing the name of the party nominee for united States senator Upon the general elec tion ballot to ascertain the person who is entitled to the support of those mem bers of the legislature who have placed themselves under a moral obligation T If the right under petition Is given to the memoers of a political party can not the same right Under petition be given to the 'entire electorate of the state? In the North Dakota case the moral obligation existed because, certain can didates for .the legislature bound them selves under an unconstitutional law. Under the Oregon primary law the can didate 1s left free to take a moral obligation or not as he may see fit; ir he does take it, an tne primary law of Oregon does and all the general elec tion law , upon - the subject does, Is, first, to furnish evidence of the moral obligation by the filing with a proper state officer the pledge (Statement No. 1) and then by ascertaining the party's nominee at a primary election and thereafter the peoples' choice between the different partv nominees at the gen eral election furnish a basis by which the electorate of the state may deter mine whether those who voluntarily placed the moral obligation upon tnem aelves have or have not oerformed that moral obligation at the time the legislature votes ror united states sen- , ' - FREDERICK W. MULKEY. THMSGIViNG. Less than two weeks away, it will be wise to provide yourself with one of our :,. - - . . . . - ... it-' ' i f M ' ' or OVERCOATS GROWING INtEREST: IN WOLF CREEK MINING RECALLS EARLY DAY TIMES (Special Dispatch to The 7oanati ; Wolf Creek, Or Nov. 14. Great In terest Is being taken in mining on Wolf 'and Coyote creeks, which: were the scenes of great activity In the early six ties, and the stories of those days re being reviewed Four miles of Wolf creek runs through what Is commonly known as the "Wolf Creek" property, ' on which Oregon's Ideal colony Is now forming. One mile of Coyote creek also passes ,nrough this property., Together : they continue their course for another mile on the same property. Reports . that lumbermen In sinking wells years ago went through dirt from which 10 and 15-cent nuggets were washed have been confirmed by actual tests in the . past' few days, and there are many . pieces where a man with pick and shovel can make from $2 to 14 per day. At one time, between 1861 and .1865, over 400 men were at work on Coyote creeek and a $400 nugget was found. It was quits common to find nuggets of from f 25 to $76, and $10 to $lf to the pan. Water was scarce ana iittis cars carrying 1,200 pounds of gravel were hauled to water and these carloads. ran as .high as $75., The Ruble mine, four miles up the creek, has been worked for years and is now. yielding from $4,000 to $6,000 ?er year, at an annual expense of about 1,500. There Is much virgin ground along the creek which is expeoted to yield large returns, and the pannings of the past few days have renewed the Inter est In mining as well as Increased the satisfaction of those who have already purchased tracts for fruit purposes, as the best pay streaks are along the creeks and little , land will be spoiled for fruit A nugget was exhibited yes terday from Coyote creek worth about $50. - v SIDELINE, STOMLS OF GREAT NORTHWEST ELECTION PROMISES BOTTLED Two Factions Will JEighr for on- - r trol at Blarsft field. - (Spwtiil Dlspateb to Th Journal.) Marshfield, Or.. Nov. 14. The city lection in Marshfield next month prom ises stirring developments. The mayor 1 y M . 1 . .. v.., . . . will be a fight on the alderman candi , dates, who represent the present admln- Jstratlon.. Recently thero was formed " an organization which Is known as the Civic league. This body has a member i ship numbering In the hundreds. , Frequent- meetings have been1 -held and - resolutions passed demanding that a good business administration be car- ried out In the city. To bring about : this ideal of city government .the mem , bers of the Civic leasne will put up in ' dependent candidates for aldermen. The city la fiiviaea into two tactions,, -THEATRES ARE DAXGEROUS firs originated on the roof of the dwell ing. It is thought a spark from the chimney fell upon It Only the women were at home. They secured a ladder and climbed upon the roof and would have extinguished the fire had not the water in the well given out. The loss Is placed at $500, partly covered by In surance. ' QUICK SERVICE DIRT SOON TO FLY Near Panics Cans Marshfield Coon ' , , ell to Act. 1 ' r8ieil DUnmteb t The JonrnaLt Marshfield, Or.. Nov. 14. Threatened fire In a riiovlng picture ahow in Marsh field and a recent blase in one of the shows at Coqullle, : when a panic was barely averted, has ' aroused - the -clty council to take steps toward the better protection of toe patrons or tnese places or amusement. At the last meeting or the council - the city , attorney was - in structed to draft an ordinance -covering the protection desired. - The meas ure will require that the machines be encased In a metal box; that near ex its to the place be provided; that doors pen outwardf, and other smtlar pre- vauuons. - . -., . ... 't Work to Commence on Fill Over Government Canal. (Spe-ial Dispatch to Tat JooraaLi Klamath Falls. ; Or.. Nov. 14. Diimn cars and engines have arrived in Klam- a,' w.l . 1 . . . 1 railroad camo on the Hot 8 or in its ad' dition. They are to be used in making the fill over the srovernraent canal, and at me station grounas. A larjre force of men will be em ployed all winter on the cut and - fill, as several acres of yards and switch ing grounds are to, be filled and made ready for track laying. Two steam shovels are now working within sight of tnis city. $50,000 FOR RIGHT OF WAY FARM. DWELLING BURNS Residence of Grant Dodge Is IX - stroyed by Fire. ' . IliHtrt t The Journal t ' - t J - J1""- Nov- 14. The farm res J lem . of Oram I mflite was consumed ny lue hout 3 o'clock voeterday alter t"n. Mr. Itode 4U-i,, i ir,. a but the Wise Is oo.-uirted hv a tv tt' rn:;e (,f lov. ' 'I lie -'-.-srlra- i.i r,.V-e In I i I r. rn.1 Union Pacific Fays Oat Big Sam in -.-. Washington. " Aberdeen .Nov. 14. Information was riven out today that $50,000 has been Dald out by the Union Pacific Rallwav company1 for property needed for the proposed rignt or way to the city lim its of Aberdeen. The company now has practically every foot of land which it needs from the sound to, Aberdeen and the condemning or riant or wav through this city ana jioquuim wiu snortiy be. gin. :. . t .11 1 1 1 1 1 11 1 1 m " 1 - -NEW FORCE APPOINTED Instructed to Enforce Laws Without ; c Fear or Favor. - (SpeHal PiauaMi to Tha JoqrnaH Klamath Tails, Or., Nov. I4.i-The new fiollce force sppointed in Klamath Palls s instructed to enforce the law without fear or favor. After the council dl4 charged the old force an account of the Hlleged failure to discharge Its duties, tne new force with Oscar U. farter, as isuf, was appointed, and will. aro-o v rif-vt. wcM-i; ' Oil SALEM LIIIE New and faster Trains Be gin. Today on Oregon Electric System. Beginning with today's service the Oregon Electric railroad will operate sight through trains dally each way be tween Portland and Salem. The first train leaves Portland for Salem at 6:25 a, m..and the last at 8:40 D. m. . rfo train will take longer than two hours to make the trip of 6$ miles, and the limited Capital City Flyer will make It In one hour and 36 minutes at an average speed of SI miles an hour. Train No. 8 s to be known as tha "Lawyer's Special" and will leave Port land at 8 in the mornlne. arriving: In Salem at 10:02. With the consent of me unier justice or tne supreme court wnenever caRea . rrom , Multnomah county are called court will not nnen until 15 minutes after the arrival of this train. This will enable supreme court lawvers to leave Portland at a comfortable hour in the morning and reacn tne capitoi in time to De present at the opening of court. The limited train. No. S, will leave r-oniana at :io a. m. ana reach Baiem at 10:60 a. m. golnr, and returning, the Rose City limited will leave Salem at 3:06 p. m. and arrive in Portland at : p. m. utner trains will leave Fort una 1 or eaiem at o:zo a. m. a ft m Leaving Salem for Portland the fol lowing trains wiu De put in service, 6:40 a. m., 8:65 a. m., ii:15 a. m., 1:40 p, m., 3:05 p. m., 6:20 p. m., and 8:40 p. m. - . . Train No. S which leaves Portland! at 9:15 a. m. will connect with the South ern Pacific from McMlnnvllla arid Dal las at Tualatin at :48 a m. and with the Forest Orove train at Garden Horns at 9:35 a. m.. thus giving residents along these two linea much quicker ociriuo into oaiem man uiey nave bad WAEEHODSE SITES. I ' e" .'fi t r a - s ! ' . ' :.i"NiP" fc I i s v " if - f J ' V SB 1 4 - - - u- u $ ' v- -, ft- i , -' , '- , ' , ' " "t ' i - v , 1 I " j , i r ,' f ' " " 1 ! ' " 1 ( " ' ' c t j. ' ' ' ? ', I f i i ,- - ' 1 t t 4 V , i - " f ' i r , . ,v i f ' 1 1 - k ' ' " v' " I v v 4 SI ' - A $ ' '- i 4 a' K - i. . ' ' y 1 IF YOU WANT TO KNOW WHAT SMARTLY . , -DRESSED. MEN WILL WEAR THIS SEASON ASK BEN SELLING now, while choosing is at its best. The superiority of those we sell is. 5 ; conceded by everyone, v ; If you would join the ranks of satisfied customers, have our genial salesmen show you no obligation to purchase. MODESTLY PRICED 1 LEADING CLOTHIER ANNUAL BAPTIST RiUmiMMOl'J The fourth annual rally ' of tha Baptist churches of the city will be held In tho White Temple tomorrow. It; is expeoted that fully 1,500 pastors and members of the Baptist church -will be In attendance. The attendance at this rally has increased 300 each year for tne past tnree years and should be fully as much this year. A - program consisting; - of vocal and instrumental music has been arranged, while five minute talks will be given by Rev. J. W. Brougher, Rev. F. C. W. Parker and -Rev. John Bentsien. Fol lowing ths program an Informal recep tion will be held In tha church with the members of the city mission board and their wives as a reception committee. GARAGE PROPERTY OX CHAPMAN SOLD SI. J. Daly reports ths sals of a lot 43x100 feet on the east side of Chap man, between Yamhill and Taylor, for 310.600. The vroDertT - was Owned, br C. Aerne Jr. There is a concrete and corrugated Iron garage on the tot 124,000 DEPOT FOB PEIIDLETOII (Special Dlapatch to The Journal.) Pendleton, Or Nov. 14. Pendleton gets a new $14,000 depot, according to the statement of General Man jr. p. O'Brien of the Harriman lines In Oregon made this morning to a committee of representative business men. , In addition, changes will be made in the location of the roundhouse Keto.. which will make a total of improve ment worth $46,000 In the local yards. The station will be similar to thst erected at Albany. Work will be com menced as soon as arrangements can be made. CONSOLIDATION OF ST. LOUIS BANKS St. Louis. Mo., Nov.' 14.A deal was, consummated today by which the Na tional Bank of Commerce took over the commercial and savings accounts of ths Commonwealth Trust company. The bank of Commeroe receives 19,000,000 additlonsl deposits, making It the larg est depository In the country outsid'j of Chicago and New York. Exceptionally riae Properties Up for Bala. A single corner. 60x100, fronting on the railroad track on Fifteenth street, lust across fromi where Biyir uncK warenouse is to be erected, above high-water mark of 184. The best lot in the city for the purpose at the prica. cnotce ouarter bloeK An rief-v l be erected covering whole block, en tirely above 1894 hlirh.wt .-T. The best quarter block in the city for warehouse or factory, needing railroad facilities, to be had at theprice. ' , - . ' Jtalf Block. , - Fall half block, fronting vn ti . track' on Fifteenth street, suitable for larre warehouse' or- factors mta, frontage on the railroad on one aide &n,i streetcar line on the other. , - See us if you want aood wmrehAn factory sites at low prices. - r- UWAKLta K.. HENRI eV 80N ' , . 850 Stark Street Portland. Or. ' There are oysters and- ovstera k you can really never aDDreclata thj difference until you have trloH eacolloped on tBe Shell at the Petkimi GrllL luo bucu nrnrxtmrj free at iltUger'a J( Furniture No gift is so sure of welcome , as a piece of furniture. . Christ- .; ; - mas stocks now on show. Ex traordifiary selection includes CHAIRS, SETTEES, T ROCKERS. SEWING ' r ; TABLES; TEA TABLES AND, TEA WAGON, MUFFIN STANDS, : ' : ; MUSIC AND . 7'v.V -, w curio cabinets; i CONSOL TABLES, : . ' - V: y ' BOOK BLOCKS. ' 4j. CANDLE 'STICKS,'! pi f 7 HALL CLOCKS. SQv j.G. Mack.- A NEW AND COMPLETE STOCKS " -op ' ' Furniture For 'the Hall, Parlor, "Dining-Room, Library and Bedroom. - agnificent Assortment of Rugs and , , . Carpets. , . Draperies, Lace Curtains and Uphol- ' , stery Fabrics. Fifth arid Stark The Latest New York Novelty Pompeiian Willow 1 Furniture ' - - , . .- . i New, Beautiful and Not Ex . pensive. See Window Dsiplay t r-, 0-V-'j ) Late arrivals in the Carpet De partment include new Axmin sters in tan grounds ; new Brus sels in blues, grays and greens; new Ingrains and new Wilton, Brussels and Scotch .Caledon Rugs. -A x.. ' v. - , ' . -' ft y: - -' v "' - - i Eyes tested
