THE OREGON SUNDAY JOURNAL. PORTLAND. SUNDAY MORNING. DECEMBER fit.
CONSTITUTIONALITY OF ACT UPHELD
Tc.t of Justice MiIlHde'g Opinion Explains Ballot Feature of I.aw Ucwwalnf Membership of Supreme
-4 Beach from Throo to Mr. "
i number which tho legislature found to from tit commencement of the ealon; construction laid down by Jud Cooley
The decision of the stat supreme
curt upholding- th constitutionality of
in act increasing ih membership or
tho supreme bench from three fo. flv
) of BPtnTnl Interest, and th. aellent
. TV-mures of It r fln below from the
I. t of (lis opinion by Justice Mr Bride,
Th oltMc-k on the court aas mad by
xttnrnev General Crawford and J. It'
I'aife. d. puty district attorn of Mult
uomah county, tn th case of Hara Coch
' run. better known th L John liquor
.. i that case Justice Kln and
j f ;air. appointed to lh bench under th
acl of iot increasing- th tnemDerenip
of the court. Joined with Justice Ho-
Hrldeln the majority opinion, ll waa
contended that King- and Slater wr
not. in fact. Justice of the oourt.
Thomas OOay. attorney for Coch
inn. and Martin 1. Plp. Jtmlous curia,
utalned th brunt of th battle In sup
l nit of th constitutionality of th oourt.
A brief tn th nam behalf wa submit
ted over th nam of prominent attor
ney throughout th state, . Th easen
tinl part of th decision by Justice Me
Hi lda are as follows; . ' ; '
'-: Zxplala Act of ltO. , ,
The attorney general' and on of th
t.-nutv district attorney ror aiuiino-
niali courty, on behalf of th plaintiff,
by a motion calling for the Issuance of a
mandate affirming th Judgment of th
trial court In.. tho aboVe cauae, seek to
mention th constitutionality of chap
ter 60 of the law 01 iso. ' iaim m--..
... ih. number of tustloe oomprle
i- hia Murt from thre to fir, and
provides for th Immediate appolntmen
i.u lh. .nvuranr of two justloes In add I
lion to those already In office, to hold
iintH their successors are elected and
nullified. Vnder Its provision nr. jus
tlco King and Mr. Justice Slater were,
on February 1!. II0. by th governor,
appointed Justices of this court, took
their oath or ornce, ana. in u -n.r
provided by the act, entered upon
their duties, and hav at all time s nco
ben acting in that capacity, n n
nn such by their associates a well a
by the executive ana an oiner uwr
1 .... nrrtruiia of th state. Inelud.
Ing th attorney general and district at
torneys, as wen a or vv...
? having business oerore w cumu
Th. fnrmrr nninlon in-thl cause, b
Ing the on giving rise t this contro
, veray. was prepared by Mr. ' Justlc
Kin and concurred In by Mr. Justice
Slater ana by tn wmer i " """
but dissented from In art opinion by
a T,,HicM Eakln. in which dissent
Mr Chief Justice Moore concurred. Be
3 04 Pac. 419- By tne motion .and argu
ment in its support, it is insisted mat
- the lawfully constituted court consist
of Chief Justice Moore, Justice Eakin
nd the writer, who hold their repeo
- tive office under- laws In force prior
to the act brought In question, by
rMinn of which It is contended . that ,
i 'Mat Justice Moor ahd Mr. Justice
i:akln constitute a majority of the le
gally constituted court, and that their
opinion should be treated as the ma
jority opinion, and the majority opinion
or filed be deemed a dissenting opinion
only. .' : -
7xdioamnt of Court. .
, A peculiar situation confront us it
. it.. v.rir threshold of this proceeding,
' i'l'ha motion is not addressed to those
members of this body, who. It Is claimed
ijy the plaintiff, or the constitutional
judges, but Is addressed to th oourt,
consisting do facto of fire persons, each
claiming to be a Justice. If th three
firjt named ar to pas on the question
in the collateral ' and Indirect manner
- in Which It is presented, they must say
; to Justices King and Slater: "Gentle-
; men, w are the legitimate Justices of
this court, ana you ar intruder. , xou
. will, therefore retire, while w proceed
: to discuss the question as to whether
three or five justices constitute our
s Ipgitlmate membership." In other Words,
t we. would thus be required to decide
the merits of the controversy before
' t lie hearing. Or if all five justices lt
nt the hearing,, and one of them should
' ngree with Justices King and Slater
that ; the decision In State v. Cochran
was properly rendered by a constltu-
tionally organised court, the question
-attempted to be raised on this motion
; would still be unsettled, for, unless, all
thr of th Justice. ' xcapllng King
and Ulster, ooncurred In condemning th
conatltutionality-- of th act, a majority
of th oourt da facto would b In favor
or It validity, and th matter would
reov ltlf Into a struggle as to whe
would be recognised by th officer of
th court and the-stat offlolala. Jlow-
vr, threntlmn whoa tenure of of
fice I indirectly attacked by thl mo
tion, hv seen fit to submit It decis
ion to that part of th membership- of
thl court whoa till I uDild. by
reason of Which th contingencies tr
uggeated will not actually arts, but
th rct that they might properly 0
Ha furnisno soma jutlflctlon . for
the theory, which w think. In view of
a prodnt (to which w will later
refer) of this oourt. It Is unnecessary
to adopt, that1 th Question her pre-
sen tea belong to th domain of legis
lation rather than Judicial determina
tion, or at least that. In th manner
her preaented. It I not properly before
th court.
Qaoatloa rollU!. , . .
If th question were before th oourt
for th first tlm w might hesitate
to pass upon It. peclally in th form
hr Introduced Th points Presented
peraou. property. r reputation." Thla,
be oecesKary at th tlm th population I but such per shall not iced In the
reached tho required limit, , . , . laggregat (110 for par dlm allowance
V Zaaaltatlea ZisntMl. I fr ny on alon.H Why mplor
A.ld from thl. feature, however. It l?"r!Vr'". l"
and all other tatt writer on th sub
ject, but alao rqulr4 In order that th
nert purpos of oar funaamentsi
law. a Indicated by ' Ita preamble,
should not be defeated. L'nlea thl
could b don, th very purpose of our
other provision upon th subject, and ftn4 th hou of a certain number, and I "tat would. In , tlm. b overthrown.
n oruar 9 acriaia upon wnat meory i tneir compensation htll b tl a dayT
or oonstructiou th rramera were acting lit I manlfeat that th restrictive
at the time of th adoption of our
I..lTw7 .i. ,. J prvl .L ". 1 ' T. '""'orttnlo law. th oonsOtutlon must b
I.. k.ii ? . " :i v"' l""l'u"l'0.,""t examined a a whole. A before slated.
nuniiwntu, rar miuainj, ana no
erty perpetuated." Keeping thl object
In view, th constitutional convention,
which Included many lawyer, a large
that memorable body w ' compoad
largely -of emlnonl lawyer, several of
whom afterwards sat on th federal.
1' I Tl 1 1 1 m M .1 .ntlh.m. .lk.nAft.Aa In .ft.1.
.OTr vi wnum neve inc. r.nnw They- wer familiar with th
among tn leading eounael of our tat rui.. ' -nt HfhTmt ttttt flint 1 MArial rairtirt
and ration, mad provision for a Judicial t,ong w hich la that th fundmental
department. This provision comprise Uw- of a . , jin,,,,,, ,n0 not
most of Article 7. th first section of I. rrant nt rv,..r. ...i.i
which declare that "th Judicial power j constitution a whole. It J clear It
word war employed be-aue the con
stitutional convention knew that every
restriction and prohibition la a state
constitution must b clearly stated, and
that th law making department baa
plenary power, except restrained,
either preen ly or by clear implica
tion by oonetlutional prohibition.
Mom rn.tl..a mbIIS. t
for It la obvious that If thr supreme
Judge and flv circuit Judge war re
quired t carry out th purpoa of thl
Instrument when the population reached
but 100.000. a greater number of eaoh
would 't required hen th population
should reach five time that number
or mr. Otherwise th delay neces
sarily Incident to th trial of person
tocuaed of violating th law. and deter
mination of property Interests, would
inevitably amount, la larg propor
of th state ahall be vested tn a supreme
court, circuit courts and county courts,
Other section on the subject material
to thl controversy, are as followa: ,
'Sea. t. - Th Supreme court shall con
sist of four Justice, to bo choeen In dls.
w framed with tbl ml In view, and
that wherever a limitation wa Intended
It wa o expressed. To illustrate: In
article 1 we find numerou llmltatlona
Section I plarea an oapre limitation
upon tho clan ' that miiy bo entitled
In h. nrlvll.v. e .m .lul. mr.U
trlct by th elector thereof, who shall mnta ty other Jlmltation in each of
Ther I on other Section Included I tlon or th caaa to a dental f Jua-
with thoso quoted In th beginning of I tic. dprlytlon of liberty, by long eon
I thl opinion, which' I very Indicative! flnement awaiting trial apd through
be cltlsen of th United State, and
who ahall have resided In the sute at
least thre . year next preceding their
election, and after thc.tr election to re
side In their respective district. Th
number of justices and districts may be
Increased, but shall not exceed five, un
til tn whit population of th state
ban amount to one hundred thousand.
and ahall. never exceed aeven; and th
the three sections following. Section
10. 11 and II place limitation upon
the class of persona entitled to. hold
office ther specified; section IS, that
no elector shall be required to serve
in th militia on election dayj section
of a full realisation on tho part of th
framr that ther would In tlm. under
th constitution, be mor than thre
Justices. Section I. artlcl 7. make pro
vision a to who ahall b chief Justice
by saying that "th Judge who ha th
shortest term to rve, or th oldest of
several having such shortest term, and
not holding by appointment, ahall be th
chief Juatlce." it require but a mo
ment'a reflection-(after comparing tat
action with Motion I) to aee that so
long as there ar but thro Justices
have seldom arlen In thl eountrr. but I boundaries of district m v i. rhanarad.
ther 1 resDectabla uthApliv th. I h III VIA rh ft ttt a4liltlAy liall hsava Oha
eneot mat tney ar political and, there- I effect to remov a Judge from office, or
iurtv noi suojeci to review by th requir him to chance his res denoe
luuna. Ana. notwitiistanaing th view I without hi consent
to roiiow, w deem It -inappropriate at! "Seo. S. The Judge flrt choen un
thl tlm. before nroceedln with a dla. I der thl constitution alia It allot amona-
wt ii menis, 10 can attention i tnemiv tneir term or ornce, o that
to th opinion of aom other court I the term of on of thm ahall xplr In
uTw iivrio. . l two years, one la four veara. and two in
(Here follow extended reference to I six veara. and th.rft.r on. fir more
authorities.) , , v I shall b choaen every two year, to aerve
j ma vruig us to tn inquiry n resent- I ror the term .of six veara.
a oy piaintirr moUon, that I to aay, I "Seo. 4. Every vacancy In the office
I th act Of 1101. Ulldar Whlnh .Tuatln.. I Of iuAmm nt h. niTiram. omivt ah. II K.
King and Slater wer appointed, const!- I filled Jy election for tho remainder of
luuonai. or had tho legislature . th th vacant term, unless It would expire
power to increase tn number of su- I at in next election, and until go filled.
preme Judges, constituting this court, or when It would so expire, the governor
irom tnre to nveT But before enter- I shall fin th vacancy by aDoolntment.
ing upon thl question, it 1 Important I "Sec. I. Th Judg who ha the short-
mai w can attention to th general eat term to serve, or th oldest of sev
rule of construction under which con-leral having such shortest term, and not
auiution ar universally Interpreted. I holding- by appointment, shall be the
iney may oe aummarlsed a follow: I chier justice.
The object and purpose of th law. "Seo. 10. When th whit copulation
whether fundamental or otherwise, must I f th state shall amount to two hun
be considered, and the constitution muatidred thousand, the legislative assembly
not be Interpreted on harrow; or tech-1 rnar provide for the election of supreme
and circuit Judge in distinct classes,
one of which classes shall consist of
three justice of the supreme court who
shall not perform circuit doty, and the
oiner cwaa anau consist or ine neces-
must be I ry number of circuit judges, who shall
hold full term without allotment and
who shall take the same oath a the
nlcal principles, but liberally and on
broad general lines, In order that It ma
accomplish th object Intended by It
and carry out the. principle .of govern
i. The' whole constitution
construed together.
. When two construction are pos
the Inadequacy of legal protection Id
many . Inataneea In the practical c eon
flacatlon Of property. It la but beg
gtng the question to aay, a doe coun
sel for plaintiff, that criminal do not
complain of delay. It has for age
been recognised by all law abiding clt
lsen of Kngllnh speaking nation that
no on la, ' In law, deemed a criminal
Until ' convicted according to law, and
also that not evtry man acoused of
crtm I guilty. " It may be that par
on having - a full consciousness .of
guilt may not complain of delays, but
the Innocently accused, do. v, It I
also a well recognised right and th
mieresc -or iai ana nation oemana,
that. ' whether the (accused be Innocent
there cannot be two holding term f
. that excessive ball shall not be re-I equal length. It la no answer to My
quired, nor excessive fine, Imposed, nor I that this had reference only to' those
cruel and unusual punishment be ' In- I who might be peiected under section s,
fUnimA. .tr. - . Hlmd.v Hmil.llnM. w1lK I a. lhara...A.ra . .nt . Anlv iu nualtrvlna?
reference to various-matter, are also word or exceptions In th section to ?r fu'lty. h I entitled to and should
found In eaoh of tb remaining 1 aeo- Indicate- uch limitation, but If, a con- tml In mannr provided by law
tlon (except one) of th bill-or right, tended, when .th act of 1ITI brought without unnceary delay. Nor doe
Section 14 thereof provide that "Tree- ctlon 10 in operation It blotted out CI ,ht- ,ln. "" the
aon'aa-ainat th state ahall conal.t nniv all trace of aeetlon . auoh annihilation. "n. f " PPeal I 'only a. tatutorjr
in Uwif.. i. .mn. ii ir ih. ...j. if -it hut- (hut affn-t. wmilit im tiava I priTllege, a soggested, become ma
ahall consist" lmnort-a" nrohibitioo oe I -carried with lt aeotlon -Thl oourt f trlaljfor it may be ald alo that p-
restralnt. why" waa tli word, "only" I howvr, by It contlnuou eelectlon and I P?.. .!1 CT" eg way .not b taken
usedT Evidently upon the theory that I recognition of chief justices under seo-
wher no restraint 1 Indicated none I tlon fi,at all time lnc th aot of 1171,
exists. ' ', - - . la well a be for, baa. impliedly at least
Article 1 of the constitution-relate I Interpreted thl geetlon to be In . full
to auffragea and elections. Section 2 I fore and ffct - ..
of thl article orovidea that avarv whlta I If the maxim Vexpreaalo uniU est ex-
male cltlsen of the United State of thel01""1 alterlu." go much reeled upon by
ore of 11 year. and upwardswho shall I eounae for-th motion, I pertinent -in
slble, one ot which raise a conflict oruPrm Judge."
take any of the meaning of a section.
sentence, phrase or word, and the other
aoe not the latter construction must
be adopted, or the Interpretation whuch i
harmonises th constitution a a whola
must prevail..,' , r
XdxoJt of Jowr.
ot X.lmlUd to Thr.
It will be observed that the supreme
court I .created by Section 2, which.
ftrt provide the number shall consist
of , four, and,, until - the- population
reaches a Certain limit shall not exceed
five; but that after the population
In this connection It must also be kent I reaches 100,000, the number -of justices
In mind that the constitution of a state, f the supreme courfc may be further in.
unlike that of our national organic law. I creased, but ahall never exceed aeven.
I one of limitation, and not a grant, of I While provision Is" made to the 'effect
hav resided In .the state, during the
six month immediately preceding such
election, and every white male of for
eign birth, who ahall have declared hi
Intention to become a ' cltlsen -ahall' b
entitled to(vote af all election. Now
under the construction here contended
for, by plaintiff, this language would
exclude from the benefit of suffrage
every person other than white males,
but recognising-that an express limita
tion wa necessary to exclude negroes
and -Chinaman; section waa added
a follow:' '"No negro, Chinaman or
mulatto shall be entitled to suffrage."
See also , section t, 4 and B of same
article, j-s expressly excluding other
classes, ' : Further examination of th
constitution discloses that provisions re
stricting - and prohibiting, ar st be
found in sections 3. 4, 5, 7, I, 10. 11 and
18 of article ; section 8, I, 12. IS. 24,
27, 2S, 1 and ,10 of article 4; section
J, 2, and ,15 of article 8; sectfon 1 and
9 oi article . e, utner restriction may
be enumerated, but the above should be
this cause, it application mut be gen
eral to air similar clauses where state
or district officer ; ar specified. - ror
example, section 11of the article under
qpnslderatlon provide-' for prosecuting
attorney and defines generally- then
power and duties. They are the proee-
cutlng officers of the state, yet th of
fice- of deputy prosecuting attorney is
provided for,, and. by- virtue of the aot
authorising such appointment, th able
deputy district attorney from Multno
mah county appears c th motion In
thl contention.- The constitution also
provide for certain state officers, but
nowhere provides for th. office of at
torney general, and expressly declares
(action 17. article- 7) that th prose.
outing sttomeye shall be the law offi
cer of th etate. If the designation or
enumeration or ctrtaln officers take
from the legislature th power to pro
vide for others a tho growing needs of
public business demand, then the offi
cial position of both the distinguished
counsel who subscribed to this notion
ufftcient v to illustrate th fallacy of "t ' VnA n. v . VI
M.MHr ii i. .eiAi lof their own login,. and they stand here
mere intruders In ' the -alleged of floes
which they assume to hold and by virtu
of which they assume the right to appear
for plaintiff In support of this motion.
Tears ago. however, . thl court took a
plaintiff's position.? It is sufficient to
say. that wherever in the constitution
a restriction or prohibition was in
tended, 'it was either -expressed or so
strongly implied a to be free from
fLr!m,JU?!fe" V1 -ra;up,2 ! Si-J!l2. 4trtoegtonal I.wn. ,0 fr. .. th offloo"f deputy
ITwiV.V -T. . k ;V .v , I district attorney I concerned, held that
, ti w-m, e",rci?fd as tho constitution did not prohibit th
w111 ,7tenA,0,n' nowVt.' croatloff of that office, h legl.latur
court and the Judge of circuit courts
are left to be provided for by Section 10.
which continues the subject by declaring
that when the population reaches 200.-
ooo, tne legislative assembly shall make
provision for circuit Judges and d vide
BABY Htii I LtSS
aiiosufu
Seemed Ready to Come Off.
With Severe Eczema-Spread from
hace All Uver Sca n Deve bned
IntO a OOild Scab and Her EarS (which the legislative department of the
state was vested in It creation. Con
gres can pas no law but such a th
constitution authorizes either expressly
or oy ciear implication, while the state
legislature has Jurisdiction of all sub.
jecta on which its legislation I not pro-
nioiieq. .
In Cllne v. Greenwood. 10 Or. 230. t6.
241. Mr. Justice Lord, speaking for this
court states the principle of the consti
tutionality or legislative enactment
thus:
"But did we entertain any : doubt
whether the legislature had exercised It
power in the mode prescribed by the
constitution, we should bo compelled to
reaoiv that doubt In favor of the con
tltutlonallty of the mod which the leg
lalature had adopted. Before a etatute
la declared void, in whole or in part its
repugnancy to the constitution ought
to be clear and palpabl and free from
all doubt Every intendment must be
given in favor of Its constitutionality.
Abie and learned Judges have, with
great unanimity, laid down and adhered
to a rigid rule on. this subject Chief
Justice Marshall, la I Cranch, 121; Chief
Justice Khaw. in 12 Dtck. L aad Chief
Justice Savage, m Cowcn. 114. have.
with on voice, declared that It la not
on slight implication and vague eonjeo-
lure that tne legislature l to be pro
nounced to have transcended its power.
and its acts be considered void. The op
position between the constitution and
the law ahould be such that th people
I judge) feel a clear aad strong convic
tion of their incompatibility with each
oiner.
Th court quote many other dteia.
ions to tne earn effect. .
Ve0 PiMWIBM.
Bearing In mind th fundamental
principles or eonatl tntlonal construc
tion, let ti examine the previatona af
w ooftstitattoo. aearlna noon th ere.
aUoo and perpetuity of our Judicial sra-
lera. ror uve purpose ef eaeertatatng
whether it la ther dleelo d that the
aamoer or Justice to ewtiaUtvte the
preme court should k-e DrMtiallr ra.
sine ts tnrve, or wttether. by exprea
term T clear impllcatleet. sny pro-
viaions are atscie. Inhibiting th law.
wis eewanaeat of our slat, from
providing that a greater imbtr- at
jutie may ewtltt th exwrt.
Prtt 1 ef ur bill f right ex
preset oeriare trait -Juetl aK.li
mf -HIT WT.!Wl ptirpMH.
r Tin-Tr mn viOTt iar. ar4 at
PERMANENTLY CURED
BY CUTICURA REMEDIES
' Mv baby uffered about thre week
ana see wa in a verr bad oonUition.
l fie eczema com-
menced oa her
race and spread
all over the aoeJn.
Itwasasolidacab
and sore, and her
little ears looked
as though ther
would come off.
bh waa very fret
ful and could rest
nut verr little.
Rhe would rub her
littl ear and
head much of the
tune. She looked
awfully bad. Wo
then beard of the
CutJcura Reme
dies anrl t knnrkt
rm Cutioura 8oap and Cuticura Oint
mnt and I decided to give thorn a trial.
I ukH two cake ofCutkura Soap and on
lox of O'ticwa Ointment, at tne time I
I'ltnmroaid to tan tho Cuticura Ketno
nc ho was in a very bad fix. I began
t treat ment by bathing with Cuticura
v- r thr times a day and aim uned
t iiiM-ura Ointment after each bath, and
"u but a few days beor w began to
f rid r-ut h wa improving. 8h con
" iH to improve and in about thre
" aho wa evitimly cured and has
r, t txv-n troulJexi with any skin rlinraie
a i. Shews at that time about three
r ha Id r-d ilie is nrw thre rear
t ' i two ww-r.tb. and t a fine, ffr Vby
r 1. I w:ird!y twemnrd theOiW--
-a Kt-fVova to any on who ik anfler
r !rm t lt temt-ie Aiam and I pro
i lira osanr thank. I ai, r'atily
f ,: iir to arv en w wTil ak
. triS, it M. M. M. B-rnrti..
t 4 -. il r. r. . w iiww. v, Oct.
f . r r - ttt0 t ,.
one of which suall perform supreme
court auties only, and the other circuit
duties. Prior to the act of 1878, there
were no circuit Judges. There were cir
cuit courts, but under 8ection 8. each
of these courts wa presided over by a
Justice' of the supreme court. This is
the effect of the holding in State v.
Ware, U .Or., 380, 893-4. in which case
Mr. Justice Lord gays: "Truth la, when
the act of 1878 made operative Section
10 of the constitution, the effect was to
write into these provision, "Circuit
Judge'," Applying the same reasoning;
here, when the act of 1878 provided
there should be five circuit Judges. It. in
effect wrote Into Section 10 the words.
the white population having reached
200,000, five are the 'necessary number
or circuit Judges'," so that Section 10, in
effect then read:, The supreme and cir
cuit Judges are divided into distinct
classes, one of which shall consist of
three Justices of the supreme court, and
the other of five circuit, judges. ' Had
the section declared the number of cir
cuit Judges, which should . be selected
When the population reached that stage.
and then provided that thereafter pro
vision be made for such additional num
ber as might be deemed necessary, and
remained silent a to the number of su
preme Judges that might be provided for i
in the future, there - might be some ,
merit assuming Section 2 could not be
construed with Section 10, in the con- i
ten tlon that the number of supreme
juoses wer. Dy Beciion iw, mienaea to
be limited to-three.-
Absurdity of Argwmeat,
... , . i. . . , ..
oui ii win in noieu in mis connection i
that Section 2 provided the . minimum
number as four, of which, under Section I
(. on account of one of the number hav
ing tried the case appealed, but three j
justice could sit on an appeal; thus,
so far aa the hearing of appeal was
concerned, beginning with but three (the ;
number selected when 8ectlon J became j
effective) and placing the maximum at !
seven, and if. when th 200.000. popula- j
tlon mark waa reached. Section 1 elim
inated all of Section 2 (which we do not I
decide), it must necessarily follow that
th limitation placed upon the number j
or supreme Judges ceased when Section :
i became inoperative and -- Section- 10 j
went into effect. This necessarily Im
plies that if th framer of th con at I- i
uiiiun iwuiia ii necesawry to expressly i
state the limitation that ahould be In .
force until th population reached th -
limit specified In Section 10. they would, -had
they deemed a limitation advisable.
hav also expressly stated In tb section
supplanting Section 2. However . we
find them. In effect providing that the
MMI K. ..,. ....In. h. - 1 J f
1 - . k ,, . i 1
iwiniwum nrw mitmu Df lartf euprem
Judge end as many circuit Judges a
j mi iim d rouiw aaviaaoie. i
The number, which the .legislature at
that particular time found to be neces
sary -properly to perform circuit doty"."
w fixed at flv. which, when read
with Section 1 of the constitution, so-
der which th lw, permitting the p-'
polntmeot of the flv circuit Judge, wa .
enacted, was equivalent to saying that '
when tne, population reached te.0. '
th supreme court should consist of
thre and th circuit - court, of flv
Judges, and no referenea la mad to
the number that may be prov1de4 for In
either office after that tlnw. It weald .
necessarily follow, if th oomeatiow of.
thoae appealing for- the motion , were .
tenable, that tb number f circuit
Judge should never escoed five; yt w S
hav never heard of aay one suggoattng '
that auch a limitation ra tnttivted for .:
h circuit courts. The abeurOity f
tnaJotaJctng that sack a tlmitatloa waa
Intmded for th etrc-ait courts could 1
nd wosld ret be entf-talned fr a one-'
snont yetH I mantfoat teat, if tM j
rsl of cnrwctlo in;t4 cpon. IItt.iu
I" t6e rnmSr-,e ef nt ror. rt t .
re, la n?iv, e I k romri -1 itj rn-t
err-- tft t- r'r:'t 3r. ai i
pv.cn, nii trial any- aci aaeptea oy I n iuo- justices may, oe eiectea oy ais-; i rarouuijit uuuuw ana. uua was roam- I ... ,.(.. .eK.M .mvi.inn.
tii. t.t.tatH,. A-.i . I ,,i-. .2 , nn. i. ,nt, k. .v I common sens view or tnese provision
t .uot... uu.u, VI UID aiviv, i . 41. nlvlli VIIVUII .uuijr, I --.. . v. .iai tticii I Af lh. nnfltltlltlAffl . rtt .IrMOltV
..v. v....... v. iuiiiaiueuw lawa,
must be held valid; and this Inhibition
must expressly or impliedly, be mad to
appear beyond a reasonable doubt
The foregoing principle ? appear so
well settled by a unanimity of decisions,
not only in other Jurisdictions, but . by
the courts of this state since Its incep-lthe Judiciary into two distinct Classes.
won, inn tney .- may oe i deemed . ele
mentary. But lno tho constitution
so earnestly relied upon by the plaintiff
wouia necessitate a disregard of the
foregoing principles, we deem it appro
priate to can attention to a few declara
tions of our courts upon the subject
Before doing so, however, we quote from
that eminent text-writer and Jurist,
Judge Cooley, who as an exponent of
constitutional law has no superior, la
hi work on Constitutional Limitations
(7 ed.) page 341, he states the rule , as
roiiows; . , , . ,
"It is- to be borne in "mind, however,
that there 1 a broad difference be-
tween the constitution of the United
State and the constitution of the state
as regards the powers which may be ex
ercised under them. The governments
or tne united mates are possessed of all
the general powers of legislation. When
a law of congress I assailed as void, we
iook in tne national constitution to see
if the grant of specified power is broad
enough to embrace it; but when a state
law la attacked on the same ground, it
is presumably valid in any case, and
thl presumption is a conclusive one.
unless tn the constitution of the United
States or of the state we are able to
discover that it la Drohibited. We look
In the constitution of the United State
for grant of legislative power, but in
the constitution of the state to ascer
tain ir any limitations have been lm
posed
to one or. two more limitations, which
wo deem distinctly denotes that when
a limitation . was intended by the con
stitution it was there clearly indicated.
": 1 v Analogy -3lwltr. - .
Article 4 of the constitution relate
to the legislative department section
2 of which provides "the senate shall
consist of 18 and the house -of repre
sentative of 34 member, which num
ber shall not be Increased until tho year
I860." It will be noticed that notwith
standing the first two clauses say the
senate-shall consist of 18 and the house
of representatives 34 members, and al
though this language is similar to that
language employed with reference to
the number to constitute the supreme
court clearly the framers were not of
the opinion that this language Imposed
a restriction against an increase, and
hence, although the number to consti
tute the two bodies was enumerated.
added tan express declaration that this
number ahould not be increased until
a given time. And section 29 of article
4. in fixing the compensation of the
members, of. the legislature, expressly
states that they "shall receive for their
service a sum not, exceeding S3 a day
had the right to male provision there
for!" and, as hereinbefore- stated, apheld
an information filed by auch officer In
place of tho principal, Stat v. Wal
ton. 99 Fac, J1 -V : rti..;-.;-..
:? , s : ; woaic - 3efo fasti. '
Then ''recurring to our Ul of rights,
its preamble declares that th constitu
tion is ordained "to tne ena tnai justice
be " established, order ' maintained, and
liberty perpetuated." and section - 19
thereof, that, "Justice shall be adminlsr
tered openly - without purchase, com
pletely and .without delay., and, every.
man shall have his remedy ; oy - flue
course of law for Injury done him in
person, property or reputation." Now.
assuming tho intention that tho. number
of supreme Judges should forever t
limited to three, ana that for all time
the number of circuit Judges should
remain-five and no more, or should not
exceed the number found necessary by
th legislature, when we reached the
200,000 mark, would not thla Intent alao
hav to - be considered along . with th
declaration last above- referred to In
our bill Of rights? This would not only
be essential to conform to the rules of
until the procedure therefor Is first pro
vided by statute, but In -either 'event.
the eonstltutlon contemplated that such
appeal might be provided for, and It
was with this In view that th consti
tutional provision for th uprm
court wer inverted. ' Th unfortunate
condition of affairs Incident , to long
delay In matter Involving not only
property tight, but personal liberty, aa
welt of . colonial day,- contributed
largely to th birth of our republic, and
to th adoption of. constitution, nation
al and state, under which th oppression
formerly existing has so long and
Justly been obviated. 1 1t is -reasonable,
then, . to asmim that nothing , we In.
tended In the adoption of. our'organlo
laws. Which could lead to such dlsaa
trous result. , . . ijiV.?
- - A aVatioaai Ooaolalosi. r
It is mora ration!, and but . reason.
able, to Infer that It wa Intended the
number of 'supreme " judga,v when ' th
sute reached th population requiring a
separation ' into : "distinct ; classes,'
should, begin with thre .and no less,
leaving the additional .number ' to . be
determined under tho future conditon
as thy might ' Me. Thl. our leglsla
tore.' at Its last session, determined and
declared, and "by the adoption of tb act
in Question, . announced, that .th stat
had reached that stage of advancement
wher more members of thl court had
become easentlal to th carrylnr out
or tn purposes or tn constitution
expressed tn Its preamble, and In sec
tion 10 of th bill of righta This was
declared In 'clear and unequivocal tan.
guagd In th emergency claus of the
aot as follows: -?'' -r :y.?
Section 4 Inasmuch as the , set of
February 28, 190T, providing for the as
sistance not two commissioners: to the
suprexo court i about to expire by
limitation thereof. and said -court' is
now about one year behind with the
trial -of cases now on its trial docket.
and additional cases ar being filed
ment enlr. Referring to this pnwar. th
principle appltcahl thereto ar cUmly,
ably and cunclaely stated by Mr. Juatli-
Hean, spaaklng for this court fol
lows: "Moat unqueatlonably llioae a ho make
th law ar required, in the pruvrait
of thair enactment, to paas upon all.
Question of expdlncy and n-cepalty.
connected therewith, and must therefore
determine whether a glvrn law 1 nec.
essary for the preaervetlon of th pub
lli peace, health and eafrty. It lm at
way been th rule, and I now evui v- ,
where understood, that the Judgment of
the legislative and executive depart -
ment aa to th wisdom, expediency or
necessity of ny given law la cutu-lualve
on th courts, and cannot he reviewed
or called In question by tlint. a
Th existence of such necessity Ja there
fore a queatlon of fact, and th auUior-
Ity to determine such fact must rest
somewhere. The constitution dot: not
confer It upon any tribunal. It must
therefor necessarily reside with thatv
department of th government which la '.
called upon - to exarclaa th power. It
I a question of which the legislature '
alone must b th Judge, and when it
decide th fart to exist it action I
final." Kadderly.va, Portland, 44. Or.,
Ml. HI. " 5-:. -'; .
. . Oeaalostea X Clear. ' t-r
In conclusion w will add that under
ny pojnt of.'vlew It I manifest, from;,
th various constructions placed by em- v
Inant counsel upon article 7, however. ,
different they may be, In view of the '
legislative interpretation lhcreof, that ,
Under light moat unfavorable to the act -tn
question, no one can ssy the const I- -tutlon
- I f re from ambiguity on the .
subject or that auch act under consld-.
eratlon I beyond a rational doubt un
constitutional. i. placed, therefore, under" J
th most damaging scrutiny, possible.
there-is 'no eacap from the conclusion.
that the .legislative assembly did not.
In tho enactment of the law In question,
exceed It constitutional power. To
hold otherwise would be to disregard, as
hereinbefore -disclosed, the -well settled .
rule of construction .heretofore promul
gated by an unbroken line of decisions.
of our tat. -. ; - . .
Judge Kakin and Moore concurred in
short opinion. v. .
Sflcct AttalU School Site.
" (Roeclal plaeatrli to The Journal.)
AtUlla, Wash., Dec. 28. A moetrng
of the elector of ' the Attalla school
district ha been -called for 'December
10. to decide on a location for Attalla
new , schoolhouaev , : v - ,, v, -
YOU CAN CURE
DYSPEPSIA
vF-.:;' T"-' i- - - -
;'-v- . .' "-wi-aaa..aw-
But to.Po So You Must Du
plicate Nature's Process of
Digestion Jn Some Way.
.... ' ,v '''"C..';.- " .v:
Indigestion and Dyspepsia are often
Inipl little matter at first but if neg
lected will soon cause much pain and'
distress. Pretty nearly every, disease
that ' afflicts humanity is largely due
to Indigestion; at least Indigestion la
the beginning of the trouble. - The only
way to restore health Is to remove Indi
gestion, with KodoL Every table -pool) -ful
digests 8 pound Of food. . Every
one know that people must eat to live,
and if they would eat plain food in mod
eration, there would be little need for
doctor and drug store; but all of. us .
occasionally, and many of us constantly.
therein raster than three Justices, un-J eat not only too much, but swallow rich
alflatiT . Mil . .nakrilla ll... A .1..
aided, can speedily hear nd determine
them, thereby Indirectly and In effect
contravening the provision of th eon
stltutlon that Justice shall bo admin
Istered, without delay,' it la hereby de-
ciarea tnat tne.status or affair is such
that th prompt enforcement of thl aot
1 necessary for the Immediate oreaer
vation of the pub Mo peace and safety.
and an emergency I hereby declared to
exist and this aot shall be exempt from
the power of the referendum, and shall
take effect and he In full force and ef
fect from and after Its approval by the
governor." Laws 1909, p, J00. .-.
We thus have a legislative Interpreta
tion, declaring that th tlm had ar
rived when more Judges were easentlal
to a compliance with th command of
our fundamental )aw, "that justlc ahall
be administered without delay." . The
food that th stomach cannot digest
The food ferment, gas fills the stom
ach, and undigested lumps of food hard
en and the lining of the- stomach be
come Inflamed. That's where chronic
and nervous dyspepsia cdme in. Now,
whatia to be done? Simply this give
the stomach rest; help it to do It work.
Th only ur way la Kodol. This is
true because Kodol Is th only prepara
tion that supplies the same digestive
Juioes that are found In a healthy, vig
orous stomach. Just a soon as Kodol
goes down to the undigested food, it
tart proper digestion at once and
awav so the distress and oain. Onr
Guarantee:' Get a dollar bottle of Kodol.
If you are-not benefited the druggist
will at once return your money. Don't
hesitate: any druggist will sell you
Kodol on these terms. The dollar bottle
authority to determine when the itat j contains 24 times as much as the 8Qo
has reached a point demanding such I bottle. Kodol Is prepared in the labora-
aotloa rest with the lawmaking depart-' tories of E. C. DeWltt A Co., Chicago.
Steinway
and Other
Pianos '
a - . r- -
Victor
- Talking
Machines '
Sixth and Morrlg8on Oppoaltep Putofflc
Let Us Make A Suggfestion
Why not take the check you received yesterday and apply it or a portion of it as first payment on
the piano? It will not be hafd to pay the balanceonly a h'ttle each month for a short time.
We sell the following makes i Steinway Everett.' A.' B. Chase, onover - Packard, Ludwig, r Estey,'
lrtzmannEmerson, Cable,vKing;sbury ' t ' v.. ,
Wre offer you an unbroken line from wfeich you. can; nuke your selection. Early in the". year our; buyer;.; v;
commenced to prepare for the : greatest holiday trade in our history, with the result that carload after
carload came along just when they, were needed. The only delay ? we experienced was with a carload1 of v
Kurtzmann pianos, which was held up for a short time on account of the switchmen's striW. 7" V'; v
We have a large number of. used pianos that have, heeii -.
taken as part payment on Steinway Grands and Player-Pianos.-'
.Thej will be put into good condition in our shops and you cair .
: buy one of them for a mere fraction of jvhat it cost when new.
1
V
-
1
If You Are Not a Pianist r
You need an Inner-Player. With an Inner-Player in your
home you secure, immediately, Ihe ability to produce, personally.
the music of your choice. Thinkvhat it means toliave a piano
in the home which any one can play." . , .
Tlie fact that Sherman, Clay & (?o. have only one price for
everj-body, for the same size and style of instrument, and thit
even piano is marked in plain figuresmakes it pleasant and
eav to buv here. 1 .-:.,
- i ipw f-r Sr'---T -.