16
, THE OREGON DAILY JOURNAL, , PORTLAND; SATURDAY EVENING, JANUARY 21, 1911.
OMY GIVES I
HI
ml
OF
JURY TRIAL LAW
Supreme Court Cannot Change
. Verdict but Can Pass on
Law Applied to Reach This
" Verdict.
' Judge Thwmas O'Day has submitted
Ms brief to, the Bupr?m court In the
threo-fourths jury case, which has been
brought up to settle most points in the
constitutional amendment covering the
reorgatiizatton of the judicial eystem of
the state. JudRe O'Day's brief was
submitted and he arirued before ths su
preme court at the invitation of the
Judges. Other attorneys have been
asked to do the same, and eome have
complied. . ' ,
. The effort to straighten out the real
meaning of the phraseology of the
amendment has simmered down to three
points- First, whether caaes pending
when the act became operative were af
fected by It; second, the question of Just
what power has been delegated to the
. supreme court: and third, whether the
right of trial by Jury shall remain in
violate. In his brief, which is n real-
.... ttx nunntinnfl submitted to
ix y mn m -
members of the Oregon bar by the su-J
preme court, he de" principally wim
the extent. of the additional power given
the supreme court.
Judge O'Day has answered in detail
the third question sent out by the su
preme court, which reads: "If in ac
tions at law. involving value in contro
versy more than J?0, no fact tried by a
Jury shall be otherwise reexamined In
any court tf this state, except where
there Is a total absence of testimony to
support the verdict, what consideration
shall the supreme court give to the tes
timony, among other matters submitted
upon an appeal. In affirming the Judg
ment appealed from without regard to
errors occurring at the trial on the erne
hand,' or on the other In determining
what different final Judgment shall be
entered on appeal V i
Judge O'Day declares that the amend
ment; as it was passed at the last elec
tion, amends Article VII of the const
tutlon, which creates and defines thl
Judicial department He argues that tho
right of trial by "Jury can not possibly
be affected by the amendment, as It Is
provided for In the'btll of rights. His
argument Is that the reading of the
amendment shows that It was framed
to permit the supreme court to overturn
Jury verdicts only when the testimony
showed absolutely no evidence to sus- j
tain the decision.
Judge O'Day contends that If a trial
court rejects Important testimony or
misdirects the Jury, there can be no
trial in fact under the amendment.
Its affirms that members of the bar
have worried over the phrase, "no fact
tried -by the Jury shall be. reexamined,"
and gives this answer:
Case of Wo-Trial in rack
"These words have been a part of
the constitution of the United States
for more than a cwntury and have re-
time and therefore should have a Ju
dicial jmeanlng In a case named the
court Is not examining the facts passed
upon by a Jury. It is examining the
fact that the court did not allow the
Jury to have the facts or at least the
material facts or, if the facts were al
lowed to iro to the Jury, the court mis
directed the Jury as to the rules of
law governing their deliberation. For
instance, if the court should admit a
promissory note In evidence and then
Fhould tell the .Jury as a matter of law
that the words 'for value received, etc'
did not import a consideration, and that
In the absence of proof of consideration
the verdict should be for the defendant,
the court would have no hesitancy In
saying that there was prejudicial error
and would order a new trial.
Discussing the questions brought up
In the third article, the Portland law
yer has written:
"In the late proceedings of the Na
tional Bar association it was recom
mended that in law cases the question
of fact be determined by Jury; that the
questions of law be reserved for the
court to apply same In accordance with
the mature conclusions of the court
as to what rule of law should be ap
plied to the facts so declared by th
verdict of the jury. The verdict of the
Jury under this arrangement stands tv
any controversy as a final determination
of the facts. T'nder this amendment
the evident intention Is that In all ac
tions at law where the amount in con
troversy exceeds $20 the right of trial
by Jury Is preserved, not only preserved
Tout final. For years after the adop
tion of the constitution of the United
States the courts applied what is known
as the "Scintilla Doctrine" to the ver
dict of juries. This was also the doc
trine of the state courts. Fifty years
ago a ' lawyer's library did not neces
sarily have to consist of eight or ten
freight cars of books "In order that he
be able thoroughly to investigate a
proposition of law. The facts in the
case were not before the court on ap
peal, except in sa far as it was neoes
isary to explain the point of law raised
by the exception.
"But under the modernization of the
law the rourts have adopted the doc
trine that In the trial of all questions
at law in Jury rases there Is a prelim
inary question Tor the judge to deter
mine which Is whether the ease should
no to a Jury or whether the court should
grant a nonsuit. Tills examination of
the facts 1. . this trial of tho issues
of fart by the Judge Is denominated
'a preliminary question of law.' In the
opinion of the writer this hns led to
an intermlmihl.f tangle so that no law
yer ran say in advance what the law
Is He may know the rufesi of law, he
may he well versed in the rules of evi
dence, ho may have all the' facts, and
then lie ig unable to advise his client
what the. law Is as to a particular ease
because under this system the whole
matter must be put up to a trial judge
and he must determine the facts. One
Judge will arrive at one conclusion and
another Judge on the same facts will
reach an entirely different one.
"The case is then appealed and this
court Is asked to pass upon Hi is 'pre
liminary question of law' and frequent
lyvery frequently reaches H crch,.
ton rniitrnrv tn 1ia trlut r-.ni... 1
. nun iiip
eftse Is flecoBHartly reversed. The facts
ln each ease are discussed and law
books without limit are the result. No
'rule of law, except 'the law of the case'
1 necessarily settled because in a sim
itar Tease It will be contended the facts
are different and , the court is called
noon to review them and fix the law in
that case. - Iri the cases 1 have In
stanced I assume the underlying prin
ciples of law are the same in each, if
were left to the jury (except the single
minstirtn As to whether tltern .,
eviiioiica at sui; intt second cane men
tioned would not he appealed.
"in the early history of (his ques
tion, the courts as X have slated, ap
plied the Scintilla Doctrine. If there
were any evidence to support the ver
dict the court would'not Inquire Into it,
and "What la attempted ta be . done by
this amendment Is merely to' apply tod
Scintilla Doctrine and make it a part
of the consUtutlon so that the trial of
a question of fact by a Jury means
something. It takes out of a case this
continual appeal to this court upon a
question of fact because if lawyers in
advance know that the courts will not
go into the question of fact or examine
the facts for the purpose of saying
whether or not the verdict is correct, the
only thing left to litigate Is the law
questions Involved.
' , Proper Termination of a Case.
'If the trial Judge makes no error m
the admission or rejection of material
evidence and if after 'the evidence is
submitted to the jury he gives the Jury
a fair and Impartial direction of the
law applicable to the facts Id the case,
the verdict Of the Jury ougtit to end
i the controversy. Litigation ought to
end at some time and the world be al
lowed to move on. It may be said, how
ever, that If It be true , that the court
may not reexamine any question of fact
passed upon by aJJury, what Objecf and
purpose is there in .putting In the fol
lowing provision in this amendment:
" "Until otherwise provided by law,
upon appeal of any case to the supreme
court, either party may1 have attached
to the bill of exceptions the whole tes
timony, the instructions of the court to
the Jury, "and any other material to the
decision of the appeal. If the supreme
court shall be of opinion, after consid
eration of all the matter thus submit
ted,' that the Judgment of the court Ap
pealed from was .such as should have
been rendered . In the case, such Judgment-
shall be affirmed, notwithstand
ing any error committed during the
trial; or If, in any respect, the Judg
ment appealed from should be changed,'
and the supreme court shall be of opin
ion that it can determine wlat judg
ment should have been entered In the
court bolow, It shall direct such judg
ment to be entered in the same manner
and with like effect as decrees are now
entered in equity cases on appear to the
supreme court.'
It Makes Jury Verdict riaaL
"My answer to this question Is that
there were' two objects sought to be at
tained by this amendment and that in
all law actions the verdict of a Jury
shall be final because under this amend
ment At- does not say that It shall be
final as to the trial court only; the lan
guage is that 'no fact tried by a Jury
shall be otherwise reexamined In any
court of this state.' This Is hot a
statement that the trial court shall not
reexamine a verdict of a Jury, but It Is
a statement, that no court, supreme or
otherwise, shall do so. If the previs
ion following this means, that this court
shall examine the facts and render such
Judgment as It sees fit, these Words
ihat the facts found bya Jury shall not
be reexamined by any court are of no
avail. They are meaningless. It was
therefore. Intended to change this state
of affairs' and make the verdict of the
Jury. final. ... - -
Beversals on Minor Errors,
"On the other hand, there has grown
up The system of law of reversing cases
upon what' are called purely technical
questions. While I admit that It Is dif
ficult jf or ' a . court t say In advance
.what are substantial and what are not
substantial errors, yet it is perfectly
apparent that cases are reversed vpon
POifeeiiy apparent trivial .errors that
couia not, in any manner, have affected
tiie question one war or the other. Now
it is Intended that the courts should
noWeverse cases upon these errors that
are not substantial. It la true that the
court may and will meet with many
difficulties when it comes to apply this
rule, but difficulties continually con
front a court which have to be solved.
Such Is the rule rather than the ex
ception. "My construction of this constitu
tional provision is, first the verdict of
a Jury is final without power or right
of this court to disturb It
"Second, eliminating the Question of
fact the question of law tol) applied
to ' the ' verdict is left "to this court
largely in the -same sense as the recom
mendation of the National Bar associa
tion or at least the recommendation
of the committee that had it in charee.
If there has been no substantial error
the verdict should stand. If on the con
trary, there has been substantial error,
and the court may determine from the
record the entire record, if you please
that a contrary result than that
reached should have been had In the
court below, notwithstanding the ver
dict of the Jury, and accepting the ver
dict of the Jury as final upon the facts,
then a Judgment should be rendered
the other way. I could Instance cases
where this rule might be applied but
it seems to me that any judge or law
year may have noted many Instances
where this rule will be applicable and
salutary."
MS K FROM
BUSY ST. WIS
Question of Grading. Dawson
Street Revived; Peterson
Heads First National. .
UPPER BERTHS TO BE
. ABOUT ONE FIFTH LESS
February 1, Pullman sleeping car
rates will be reduced, but to what ex
tent cannot yet be told exactly. It is
understood, however, that the reduc
tion on upper berths will amount to
about 20 per cent of the cost of a lower
berth or that the charge for an upper
will be 80 per cent of that for a lower.
F. D. Chamberlain, district superinten
dent of the Pullman company In this
city, expects dally to receive the new
price schedule from headquarters.
Some reductions will be made on lower
berths for long distances, he believes.
The reduction on an upper from Port
land to Chicago, for Instance, will be
aoout $2, according to the information
now at hand.
PUPILS ARE TAUGHT
H0W"T0 CUT BEEf
Students of the Portland Trade school
yesterday afternoon were given a dem
onstration of the cutting- of meat at a
market at First and Alder streets. Miss
Ruth Hess demonstrated to a class of
20 pupils the manner of cutting meat
from the carcass of beef. Tenderloins,
briskets, sirloins, rumps, short ribs,
chuck 'steaks, rounds and ribs were
cut from the hanging beefs and the
proper cuts were, shown by Miss tfess.
The actual work of cutting was done
by J. Emtee, an employe of the market.
So many street Improvements, j hays
already been inaugurated and so . many
have passed the Initial stage of obtain
ing civic sanction within the last few
months that the question of grading
Dawson street which came In for con
siderable discussion some months ago,
has escaped the notice of the many resi
dents who- but a short time ago loudly
proclaimed the urgency of Its Improve
ment Although the property owners
along this thoroughfare are the most
vitally interested In the proposition. In
asmuch as they are the ones who must
pay for it, yet It does not seem fair
and reasonable, It Is argued, that the
rest of the community should bo made
to suffer because a minority of. the prop
erty owners concerned are unwilling" to
make any concession or to depart one
whit from the stand they. hare, taken.
The chief stumbling block to a unani
mous petition seems to be in . regard
to the width of the finished street snd
so strong has been the opposition .that
the Original promoters have allowed the
petition to fall through rather than stir
up any ill feeling among their neighbor
ing property owners. The net result Is
that this thoroughfare, one of the main
ark?r!es of the city, remains unim
proved and residents of other sections
of the : clty, while pointing out with
pride their own graded streets and ce
mented walks, must endure the discom
fort of Journeying over this street as
well as the comments of visitors owing
to the petty jealousies of a small num
ber who have put their own whims and
fancies before the general good of the
community...
' Peterson Is President
The First National bank has an
nounced some changes In the personnel
of Its organization. Sylvester Peterson
has been elected president C. B. Rus
sell has been chosen as assistant to F.
P. Dunker, who retains the office ' of
cashier. The report of the condition of
the bank shows a gratifying Increase in
the amount of business transacted and
that the affairs of the bank are con
ducted on sound and conservative prin
ciples. i . Sympathy Xs Peltt
Genuine sympathy Is being- expressed
at the serious Illness of Miss Georgia
Bllyeu, who Is suffering from a severe
attack of pneumonia. Practical proof
of this feeling Is being shown ,by the
proprietors' of the Electric theatre, who
gave a special matinee this afternoon,
donating the entire s proceeds to the
Stricken girt. Miss . BUyeu . possesses
exceptional talent, as a vocalist and
many residents of, tha city hare been
entertained by her mellow voice and
skillful rendering. fiVt i ,
"' - -,.';. Xsaae Salter's Death. 4 '
' It was with considerable surprise and
deep regret that many people of St
Johns heard of the death of Isaac Sutter
who .passed away , on Thursday nignt
A carpenter by trade he had of late
earned a somewhat precarious living
owing to falling health but few people
who knew htm thought the end was so
near. Born In Cary, Maine, in 1865, he
came, to St. Johns five years ago. He
leaves behind a family of four sons and
three daughters,' of whom all but the
eldest boy lived with him In St Johns,
He. belpnged-to Jhs IndependentJ3rder
of Oddfellos for , many r years but re
tired, from this organisation a little
over two years ago. The funeral serv
ices were held today In the Baptist
church, being conducted by Rev. Conrad
Owen. The body was laid to rest In
Columbia cemetery. V '
Tas Pythlaa Bisters.
The Pythian Sisters gathered Thurs-
aay mgnt at tne nome of Mrs. Dr.
Vincent for a card party. This meeting
was one of a series which the Pythian
sisters are arranging in order to raise
funds to defray the cost of entertaining
we convention which this organixation
intends to hold in St. Johns in the
spring. It Is expected that 300 or 400
delegates will visit the city for the
convention, and although the . Knights
of Pythias have gallantly offered to
financially aid their sisters, the' latter
are determined to show their Independ
ence by raising the greater part of tha
necessary funds by their own - efforts.
. XjOcsJ Owls Pleased. ,
A letter has been raoeived by ' the
Secretary of St. Johns nest, 1162, of
the Order of Owls, from John W. Talbot,
supreme president of the order, which
has afforded considerable satisfaction
to the local nest The president there
in grants a special dispensation to the
local nest permitting It to receive and
initiate without extra fee any members
of the former Portland nest. No. 1279,
Which was suspended last summer for
disloyalty to the supreme constitution
of the order. Applications have already
been received from five members of
the Portland , lodge for reinstatement
and It Is expected that quite a large
percentage of the Portland members
wll. seek admission to the St Johns
nest, which already boasts of more than
70 full-grown birds.
t To Build Residence. 1
Andrew Clark has completed the pur
chase of two lots at the corner of Hayes
and Maple streets and Intends to erect
a handsome residence on this property
In the early spring.
City Surprises Kim.
8. L.. Natters paid' a visit to the elty
yesterday after an absence of four
years, and was "much struck with the
Improved condition of the city, and the
general Indications of .progress and
prosperity. ..'
From 18,000 to 30,000 fatal and from
700,000 to. 800,000 non-fatal Industrial
accidents, according to a careful statis
tician, occur In the United States every
year. ,
Attend the Oregon Cat Club's First Annual SBbw Tonight
See Our Big Advertisements in Sunday's Newspapers
The GirV .
Aviation
Story Contest.
$100 in
Cash
and
Merchandise
Prizes.
iV.I.jfTRr ".t"1 ireasss i I ii I II
"VMVMsSsBMsBMSMSsWWsWSJSsfl mmmi ssbssbbbsbsbssi sbbsbbsbsbj mbbbsbh mm
1 Pare Food
Second
Annual
Boys' Aviation
Contest.
Hundreds
oi
Dollars in
Prizes.
Great 6th Aim
FROM 7 to 9:30 TONIGHT
Men's Fancy
Vests Half Price
piIE season's best styles,
patterns and materials;
suitable for business or dress
wear. Special, PRICE.
9
FROM 7 to 9 :30 TONIGHT
3c Toilet Soap
Dozen for 39c
WINE floating Bath or Toi
" let Soap, large cakes. Ab
solutely pure. 5c Q
grade at, dozen aJeC
it.
FROM 7 to 9:30 TONIGHT
20 Pounds of
Sugar for $1.00
B RUB ERR Y Sugar, never
sold at less than 17 lbs.
for $1.00 ; not over 20 pounds
to a customer. 20 (J ,
lbs. for "... 3)1. UU
Jm Monday
lpHE event all Portland -is waiting for The Meier
1 & Frank Store's Great Sixth Annual Pure Food
Fair begins on the stroke of 1 0 o'clock Monday morn
ing with an exhibit of Pure Food Products such as
never before seen in the entire Northwest.
Over 75 exhibitors, including meritorious con
cerns from every part of the United' States, and a pro
gram has been arranged for Monday which no one
will want to miss..
Watch the Sunday papers for complete details.
1 0 a. m. Opening of booths.
1 1 a. m. Releasing of 25 balloons bearing merchan-,
dise orders.
1 2 noon Releasing of more balloons.
2 p. m. Grand concert by Rosebrook's Heilig Thea
tre Orchestra.
FROM 7 to 9:30 TONIGHT
Men's Fine 50c
Kerchiefs at 19c
IMPORTED pure linen
Kerchiefs, fine quality,
full size, hemstitched 1 A
border. Each .1 jjQ
FROM 7 to 9:30 TONIGHT
Women's Neck
wear,5056 17c
I ACE COLLARS, Jabots,
'w Rabats and'Silk Novelty
Collars included. Spe- fj
cial, 3 for 50c; each, 1 ' C
FROM 7 to 9:30 TONIGHT
To 50c Hosiery
3 Pairs for 50c
OR MEN, women and
children fine quality;
on sale in Bargain Square;
Per pair, 19 ; 3 pair
peraUmtil 9:3
AS usual on Saturday evenings, the .Big, Store re
n mains open tonight until 9:30 o'clock,, and be
tween the hours of 7 and 9:30 we have planned sev
eral splendid specials, details of which you'll find in
the small spaces to the jight and left.
The Great Annual Clearances are also in full force
tonight in every department. Many items have Sold
-down-to small iotsumf prices kiweredctordinglyrBr
nere tonight.
FROM 7 to 9 :30 TONIGHT
Best 35c Gas
Toasters at 19c
ONE shaped Gas Toast
ers,1 toast four pieces of
19c
bread at once. Regu
lar 35c stock at....
I I "
I I
IP ' r .-. ' - 1 1 (BBBSSSBIBBBBBBBSBBBBBBBBBflSBaa.'X
FROM 7 to 9:30 TONIGHT
Men's $4 Dress
Shoes at $2.37
HEST grade patent leather
Shoes for dress wear.
styles; ' Pair, only bud
We Want Your
. ) V . .. ' .:.
Demtal
V
WoiHk
Our claim is based upon the f
sound principle of giving
one hundred cents worth of
the best. work procurable for ?
every dollar received y
Scientific Bridge Work
Plates That Fit Perfectly
Gold or Enamel Fillings
Gold or Porcelain Crowns
Perfect
Work.
Guaranteed
.a J.-. s.asm
.Vk: . ' i V t V
'- :v'T -
Dr. B. E. Wright
Dr. M. S. Bennett, Manager.
READ OUR PRICES
221c Gold or Porcelain Silver Fillings, each
Crown for .. ... ... .$5.00 'and up ". . . . . . ... ... 50
22k Bridge Teeth, Good Rubber Plates,
guaranteed, each . . . $3.50 each . f . . . $5.00
Gold or Enamel FilP Best Red Rubber
ings, each and up. . .$1.00' Plates, each $7.50
ALL WORK IS GUARANTEED ",'
DR. B E WRIGHT
PAIINLBSS DENTISTS
M. S. BENNETT, Manager .
342 1-2 WASHINGTON ST., COR. SEVENTH
OFFICE HOURS 8 a. m. to 5 p. m., Sunday 9 a. m. to 12.
Phones A and Main 2119. Fifteen .Years in. Portland,
Bulletin No. 21
If the laws are bad, there can be no prosperity; capital wfll
not invest where the laws are so framed as to imperil invest
ments; and labor cannot find employment where business and
property are not safe under the law. Instead of peace and con
tentment, there will be hunger and misery, where the laws are
uncertain and unfair.
Oregon has been enjoying a most prosperous era. It has
had the good fortune to attract capital in vast sums to aid its
development. Whether this shall continue is for the people to
decide. For, under the present system of law-making there is
great danger that the tendency toward enactment of foolish and
ill-considered laws, proposed by visionaries and Irresponsible
agitators, will effectually drive capital out of the state by mak
ing its investment here unprofitable. v
The interests"Vf labor and capital are identical in this mat
ter, and there is no surer way to restore the soup-kitchen and
the receiver than to make it ..unprofitable to carry on business
in the state.
Stability has been secured in the states of the Union by
written constitutions, which, under the old method, yield slowly
to change by amendment. The proud record of growth and
development in our country is due in no small degree to the
sense of security under the constitution that ha's made it pos
sible to go forward with great commercial enterprises guaran
teed and safeguarded against confiscation. But now in Ore
gon our constitution may be amended by a minority of the
voters at any election, and, indeed, has been repeatedly so
amended since'the new system has been in use. These changes
are vital and radically alter the fundamental law, so that security
becomes dagger, and confidence yields to fear.
Who prepares hese amendments to the constitution and
laws? Does any one know what they are until they have been
actually filed and nude ready to be printed upon the ballot? Is
there any public meeting at which the measures are carefully
considered, dispassionately discussed and anxiously scrutinized
word by word and' sentence by sentence, and their need de-"
termiried? ' - '. J " -
No, the voter is nb consulted beforehand. - Interested and
oftentimes irresponsible men turn out these radical proposals
in final form and thejyoter is expected to accept or reject the
whole complex and confusing pronouncement, and to vote yes
or no upon it, without opportunity for amendment. Nay, most
voters must vote upon it without familiarity with its contents,
being guided by the title alone, as it appears on the ballot.
The very title is often misleading, and many a man votes
for or against a principle which he fancies is expressed by the
title without knowing that he is voting directly contrary tOi his
convictions. At the last election the voters cast, their votes
upon 32 different measures printed by short title upon the elec
tion ballot. Manjf of these measures were .proposed amend
ments to the constitution. -
If Oregon is to maintain its dignity and prosperity it must
take steps to secure more deliberation in its popular exercise of
the law-making power. ' Unless the citizens awake to the dan
gers'of wholesale and hasty legislation and curtail and limit the
laws thus voted upon, it takes no propnet to foretell the inevita
ble disaster that is at hand. - ,
Earnest men, patriptic men,' must come forward quickly and
tak counsel how to remedy the evil that menaces the; state. ; A
few men, .some of them impractical visionaries,' some egotistical
nd all-wise bone heads, some scheming demagogues,-are turn
ing' out laws like a Hindu grinds out prayers with his prayer,
wheel. .They must be shorn Of this power before it is too late,'
for it g easier to ruin the prosperity of the state than to force
capital to invest where the laws are unstable and unjust. i
PortlandRailway, lighFOower Co,