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
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( " ' ' c t j. ' ' ' ? ', I
f i i ,- - ' 1 t
t 4 V , i - " f ' i
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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