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PAGE TWO
HEPPNER GAZETTE TIMES, HEPPNER. OREGON, THURSDAY, AUGUST 8, 1935.
STATE
CAPITAL
NEWS
Pardon Deal.
Capitol Plans.
Reading Faster.
By A. L. LTNDBECK
Salem. Interest in the pardon
peddling activities of Dan Kellaher
as revealed in charges made by
Ralph W. Moody, assistant attor
ney general in the course of the
Banks' hearing here, has complete
ly over-shadowed the possible fate
of L. A. Banks, former Medford
publisher now doing a life term in
the state prison here for murder.
Moody threw a bomb-shell into
the hearing before Governor Mar
tin Friday afternoon when he
charged that Kellaher While serving
as state parole officer had entered
into a contract with Banks to se
cure his release from prison for a
consideration of $50,000. Copies of
the contract signed by Banks and
Kellaher as well as a number of let
ters relating to the deal were pro
duced by Moody in support of his
charges.
Neither Moody nor the governor
would comment on rumors that rev
elations in the Banks case would
be followed up by a thorough inves
tigation into Kellaher's interest in
other pardons and paroles while in
the employ of the state prison.
Governor Martin has Banks' plea
for a pardon under advisement but
it is freely predicted here that he
will refuse to extend executive
clemency to the prisoner. In addi
tion to the argument presented at
the hearing by Moody in opposition
to Banks' release a report was pre
sented from Dr. R. E. Lee Steiner,
superintendent of the state hospl
tal, who declares that Banks is in
curably insane and advises against
his pardon.
With the state's application for a
federal grant of $1,575,000 toward
construction of the new capitol in
the hands of Public Works admin
' istration officials, efforts of the
board of control and the State
Planning board are now centered in
completing tentative plans for the
new building and in perfecting
plans for financing the state's share
of the cost that will not violate the
constitutional inhibition against in
debtedness. The application to the
PWA specifies a fireproof building
of 3,000,000 cubic feet capacity, to
be located on approximately the
same site as that occupied by the
old building and costing approxi
mately ?3,oOO,000. The governor
has said that he will call the legis
lature into special session as soon
as the federal grant is approved
and the terms of the gift are defln
itely known here.
More than 1000 people attending
the opening of the cornerstone of
the old capitol building saw the last
fragment of the capitol walls top
ple to the ground at the conclusion
of the ceremony. F. G. Leary, fore
man in charge of the wrecking
operations expects to have all of
the debris cleared away in another
week or ten days.
If Washington wants the'Bonne'
ville transmission lines on the north
bank of the Columbia river it is
welcome to them so far as Governor
Martin of Oregon is concerned,
Presence of the huge steel towers
necessary to carry the power lines
would detract from the scenic beau
ty of the Columbia gorge in tne
opinion of the Oregon executive.
Governor Martin looks for the de
velopment of a large industrial
area in North Portland as soon as
the cheap power from the Bonne
ville plant becomes available.
In the presence of a handful of
state employees and newspapermen
Secretary of State Snell Saturday
morning opened the copper casket
containing the mementos which
had been placed in the cornerstone
of the old capitol building 62 years
ago. Old newspapers, coins of an
cient vintage and official documents
taken from the casket will be ar
ranged for display in a case to be
placed in the state office building
where they may be viewed by the
public.
Standardization of the state pay
roll as worked out by the budget
department has not met with unan
imous approval by any means. Em
ployees whose pay checks were sub
jected to reduction in the general
readjustment were anything but
satisfied with the result and a num
ber who failed to receive expected
pay increases have voiced, their dis
appointment over the result With
the standardization task out of the
way the budget department is now
expected to turn its attention to the
problem of married women in the
employ of the state.
In the 22 years of its existence
the state highway department has
paid out $22,333,140 In interest on its
bonds. This amount is only slight
ly less than the $23,070,750 paid out
in retirement of maturing bonds
during the same period.
In an opinion this week the state
supreme court held that loan com
panies lending money on automo
biles must qualify under the Motor
Vehicle Finance act rather than un
der the Small Loan act Loans un
der the former act are limited to
$500 with interest charges limited to
a maximum of two percent a
month.
Human nature does not change
greatly with the passing of the
years. Tastes and problems are
pretty much the same today as they
were several decades ago. This is
revealed by a review of the records
of the state library. These show
that the popular books of 30 years
ago were "Lorna Doone," "The Vir
ginian," 'The Hoosier School Mas
ter" and "Treasure Island." In
cidentally every one of these titles
is still in big demand today, ac
cording to Miss Harriet C. Long,
state librarian. Debate topics of
that period are strongly reminis
cent of the problems that agitate
the world today: corrupt practices
at elections; industrial arbitration;
old age pensions; workingmen's in
surance; child labor; injunctions in
labor disputes; forest preservation;
income tax; liquor legislation;
teachers' salaries; consolidation of
rural schools; ship subsidies; food
adulteration.
County officials are not entitled
to mileage expense In traveling
from their home to the county
seat or from the county seat back
to their home, according to Attor
ney General Van Winkle. Legiti
mate travel expenses, in the opin
ion of the attorney general, are
limited to expenses necessarily in
curred while employed in the trans
action of county business. Officials
are presumed to reside at the seat
of government and those who do
not must stand their own expense
in going back and forth between
their homes and the county seat.
Office space actually occupied by
state boards, commissions and de
partments in Salem increased 85
percent during the past ten years,
according to a survey made by W.
H. Crowell, engineer employed by
the State Planning board. Space
requests filed by state departments
with the planning board call for an
increase of 35 percent over that in
use at the time of the capitol fire
last April. Crowell has recommend
ed the construction of a group of
three state buildings, rather than
a single larger unit The planning
board, however, has not endorsed
the suggestion, withholding its rec
ommendations until the question of
site and other matters have been
determined.
BACKGROUND
OF NEW DEAL DECISIONS
The Coinage Clause.
Banking and the Gold
Clause Decision.
IL
New Wheat Plan Ready;
Davis Urges Big Signup
With general features of the new
wheat contracts now decided upon,
including the rate of reduction to be
asked in 1936, the campaign for
signing up farmers under the new
four-year plan will be launched in
Oregon and other states soon, prob
ably in August
The decision to go ahead with
the new program and attempt to
sign up from 50,000,000 to 53,000,000
acres of wheat land, was announced
from Washington recently, The
Oregon State college extension ser
vice was informed by the Washing
ton officials concerning many of the
details of the new four-year pro
gram.
A reduction of 20 per cent below
the base acreage has been decided
upon for 1936, which is the same
amount asked the first year the old
contracts were in force. Lack of
export markets and continued pros
pective production beyond domes
lie requirements maKes acreage
control necessary, if farmers are to
receive anything like a fair price,
tne Washington officials declare.
features of the new contracts
are in line with decisions reached
by producers and the AAA officials
in conference in Washington early
in July. In a general way the new
contracts follow the plan of the old,
although some important 'innova
tions are included. One is that in
stead of there being a fixed rate of
benefit payments, decided upon at
the start of each crop year, the rate
will be left more or less flexible to
conform to changing market prices.
Under this plan approximately
two-thirds of the prospective bene
fit payment will be made as soon as
contracts are approved. The sec
ond or final payment for each crop
year will not be made until the mar
ket price record for that year is
complete. The amount of the sec
ond payment will then be deter
mined according to the amount
needed to bring parity return to
farmers for their allotments.
Growers need not hesitate to sign
these new contracts for fear of ad
verse decision on the constitution
ality of the AAA, says Chester C.
Davis, administrator. It is impossi
ble to wait until after a decision by
the supreme court to launch the
new program, because fall grain for
19.3b will be planted in the near fu
ture. He gives assurance, however,
that anybody signing a contract
will be paid for compliance as long
as it stays in force, regarless of
whether the act is upheld as not
Mr. Davis points out that the new
amendments to the adjustment act,
as passed by both senate and house.
removed many of the objections to
to the processing tax provisions
found by a federal circuit court
which gave a divided decision
against the act He points out also
that the new contracts permit can
cellation by the secretary at the end
of any year and allow the grower
to withdraw at the end of the first
two years if he so desires.
"Even if an adverse decision by
the supreme court should mater
ialize at some future time," Mr. Da
vis said, "the contract in its present
form is admirably devised to pro
tect both the farmers and the government."
"Para-di" Kills Prune Borers.
Dallas Excellent results from
using paradichlorobenzine, more
commonly known as "para-di," in
killing. root borers in their orchards
have been reported to County Agent
J. R. Beck by numerous prune
growers of Polk county. Mr. Beck,
accompanied by O. T. McWhorter,
O. S. C. extension specialist in hor
ticulture, recently put on a num
ber of demonstrations In various
parts of the county on methods of
applying this chemical. It is best
applied between August 16 and Sep
tember 15 a later date being best
in a dry fall, Mr. Beck says.
Soy Beans Tried In Malheur
Ontario To determine their
adaptability as feed crops and their
value as green manure crops, 16
varieties of soy beans have been
planted, in cooperation with the
county agent, on the farms of Geo
Lang on the west bench of the Vale
irrigation project and Harry D.
Wells on the east bench. The plant
ings on the Lang farm are on land
that has been cropped for three
years to grain and clover and heav
ily manured, and the plantings on
the Wells farm are on land Just
cleared from sage brush.
The Swond Central Bank and the
Issue of Constitutionality.
By JAMES H. GILBERT.
Five years packed full of finan
cial chaos followed close on the
heels of the demise of the First Uni
ted States Bank and in 1816 a Sec
ond United State Bank with much
larger capital but with similar pro
visions for part ownership and con
trol by the United States was set
up. Although the expediency of
the new bank was widely recog
nized, the jealousies of state banks
were still alive and ready to assert
themselves.
The new bank through its twen
ty-five branches entered into active
competition with state banks and
vested interests were bound to give
rise to antagonisms. Moreover, the
second United States Bank exer
cised a steady pressure in the di
rection of forcing state banks to a
sounder basis of note issue.
The term "wildcat bank" origin
ated in this period due to the fact
that banking offices were often lo
cated in remote and solitary places
"inhabited only by wildcats." From
these obscure locations notes were
issued and then taken to financial
centers where they were lent at
interest and passed into general
circulation. By this device an in
itial "capital" was supplied for an
indefinite series of loans.
If holders of the notes of the
wildest banks wanted to present
them for redemption it was difficult
to find the "counter of the issuing
bank." The second central bank
specialized in the business of gath
ering up notes that had strayed too
far from the issuing bank and send
ing them back for redemption. In
the eyes of many bankers accus
tomed to the financial license of
the times this practice was little
short of sinful.
In several states the animus tow
ard the central bank broke out in
the form of unreasonable taxes im
posed on branches of the United
States Bank at the instance of local
bankers. A tax of this kind im
posed on the Baltimore branch of
the central bank by the State of
Maryland gave rise to one of the
most important decisions of the
Supreme Court in which the con
stitutionality of the central bank
was definitely upheld.
McCullock, the cashier of the Bal
timore Eranch, refused to pay the
state tax and was assessed with
penalties. The case came up to the
Supreme Court with the eminent
Chief Justice, John Marshall, writ
ing the opinion.
Marshall, the reader will recall,
was a thoroughgoing federalist
His political enemies, in fact, had
accused him of being a "self ap
pointed committee of one on the
revision of the Constitution." Still
another had asserted that "Mar
shall would never learn the differ
ence between expounding and ex
panding the Constitution."
It was extremely unlikely that
this arch federalist of the time
would fail to find justification for
a central bank in his conception of
federal sovereignty.
The opinion, upholding the con
stitutionality of the bank and de
claring, it to be a necessary instru
mentality of the national govern
ment, followed along the lines laid
down by Hamilton in his defense of
the first bank in 1791.
The Chief Justice granted that
among the enumerated powers we
do not find that of establishing a
bank or creating a corporation" but
went on to invoke, as Hamilton had
done before, the doctrine of implied
powers. Marshall argued that the
presence of limitations implied that
powers not limited resided in a
sovereign government such as he
conceived the national government
to be.
The power to lay and collect
taxes, to borrow money, to regulate
commerce, to declare war, to raise
and support armies and navies were
cited as indications of the sweep
ing nature or federal powers.
"The sword and the purse, all the
external relations and no inconsid
erable portion of the industry of
the nation are entrusted to its gov
ernment," he contended.
The government, he said, must
have ample means for the execution
of these far-reaching functions and
the choice of means" must rest
with Congress.
The "choice of means" implies a
right to choose a national bank in
preference to state banks and Con
gress alone can make the selection,
Having decided that the Bank
was a necessary instrumentality of
the national government and the
act under which it was incorporat
ed "a part of the supreme law of
the land," Marshall denied the state
a right to tax it for the "power to
tax is the power to destroy." The
exercise of such power by the states
would undermine the sovereignty of
the central government, he pointed
out.
As the Negro bailiff In the Su
preme Court once expressed It,
When this Court rules against you
there ain't nobody you can appeal
to but the Lord.
Andrew Jackson was, however,
loath to accept the verdict as final
especially when that verdict had
been rendered by John Marshall
whom Old Hickory held continually
Jn contempt. Jackson came to the
presidency in 1829 with a complex
against banks and Nicholas Biddle,
then president of the Central Bank,
was soon embroiled in a political
feud with the chief executive.
Jackson, convinced that the Cen
tral Bank was dangerous to demo
cratic Ideals and institutions, ar
raigned it in his message of 1829 on
the ground that Its expediency and
constitutionality had both been
questioned.
Twice he repeated his indictment
of the bank and in three successive
messages the constitutionality of
the bank was questioned despite the
fact that Marshall had ruled it a
necessary instrumentality a dozen
years before.
Space will not permit the dramat
ic story of the campaign of 1832 in
which Henry Clay championed the
bank's charter against Jackson's
veto. It was no time for the cham
pionship of financial institutions or
of centralization. The spirit of
Jacksonian democracy was abroad
in the land and Clay and the bank's
charter went down to inglorious
defeat
Following the panic of 1837 the
treasury lost millions which had
been deposited in state banks fol
lowing the failure of the Central
Bank to function as "fiscal agent"
On the recommendation of Van
Buren an independent treasury was
set up to care for federal funds.
The independent treasury was
short-lived and was immediately
abolished when the Whigs came
back into power in 1841.
The new Congress sought man
fully to revive the Central Bank
but were kept from doing so by the
opposition and oft repeated vetoes
of John Tyler. It is interesting to
note that Tyler, the Whig, like
Jackson, the Democrat, refused to
accept the verdict of the Supreme
Court as final and based his oppo
sition to the proposed federal bank
largely on constitutional grounds.
II.
THE DOCTRINE OF JUDICIAL
REVIEW IN THE UNITED
STATES
By WAYNE L. MORSE.
The doctrine of judicial review
In the United States has not been
gained without a struggle.
Walker in his book "Law Making
in the United States.'V points out
tnai a somewnat similar power
was exercised by the privy council
in declaring void the acts of the
colonies which seemed to be in con
flict with the provisions of the royal
charters."
As is pointed out by Corwin in
his excellent book, "The Twilight
of the Supreme Court" Lord Coke's
views undoubtedly influenced the
development of the doctrine in this
country for it should be remem
bered that the American colonists
were in conflict with both the crown
and Parliament They looked upon
Parliament as an unsympathetic
body in whose deliberations they
had no representation.
Coke's isfluence is shown in the
case of Trevett v. Weeden decided
by the superior court of Rhode Is
land in 1786. An act of the legisla-
....... U 1 1 7 J 1 . ; ,,
luio uiiu impuseu jjmmiueq on ail
who refused to take the state's pa
per money at its face value, empow
ering any justice of- the superior
court or the court of common pleas
to try an offender summarily with
out jury.
The court held that the act took
away trial by jury which was con
trary to the Magna Carta and fun
damental rights and the court
quoted Lord Coke in support of its
decision holding the act of the leg
islature void.
Even prior to this, the Virginia
court of appeals in 1782, in the case
of Commonwealth v. Caton, ruled
that the court had power to declare
any resolution or act of the legisla
ture or of either branch of It to
be unconstitutional and void. John
Blair, one of the signers of the fed
eral constitution in 1789, was a
member of the Virginia court and
concurred in the opinion.
Also in a North Carolina case de
cided In 1787, the Coke doctrine of
judicial review was set forth.
Some critics of the doctrine of
judicial review point out that the
power is nowhere specifically grant
ed in the federal constitution and
that the United States supreme
court has usurped the power.
However, Charles Beard, in his
excellent treatise, "The Supreme
Court and the Constitution," an
swers satisfactorily the usurpation
argument by setting forth in great
detail the known opinions of a ma
jority of the framers of the consti
tution as to judicial review. He
concludes:
"In view of these discussions and
the evidence adduced above, It can
not be assumed that the Convention
was unaware that the judicial pow
er might be held to embrace a very
considerable control over the legis
lation and that there was a high
degree of probability (to say the
least) that such control would be
exercised in the ordinary course of
events."
Although John Marshall, in his
famous decision In Marbury v Mad
ison in 1803, was the first formally
to declare an act of congress un
constitutional, the issue of judicial
review was before the United States
Supreme Court in several previous
cases.
In Hylton v. the United States,
decided in 1796, the court exercised
the right to pass upon the consti
tutionality of an act.of congress Im
posing a duty on carriages. In
that case, counsel for the appellant
argued that the law was unconsti
tutional and therefore void; but the
court, then headed by Chief Justice
Ellsworth who had been a member
of the constitutional convention
as had also one of his associates.
Justice Paterson sustained the law
as constitutional.
It is interesting to note that as
one of the attorneys In the Hylton
case, John Marshall took the posi
tion that the supreme court did not
have the power to declare congress
ional legislation unconstitutional,
but in 1803 as judge Marshall re
versed his thinking on the subject.
Hayburn's case in 1792, was an
other early decision in which the
Judges of the supreme court took
the position that they wera not
bound to enforce a law which they
deemed beyond the power of con
gress; and a still more important
case was probably Calder v. Bull.
decided in 1798.
In that case Justice Iredell stated:
"If any act of congress or of the
legislature of a state violates those
constitutional provisions, it is un
questionably void; though I admit,
that as the authority to declare it
void is of a delicate and awful na
ture, the court will never resort to
that authority but in a clear and
urgent case."
However, it was for Marshall In
1803, In the case of Marbury v Mad
ison, to apply for the first time in
the name of the Supreme Court the
principle that the federal judiciary
has the power to pass upon the acts
of Congress.
In the course of his decision, Mar
shall states these now famous pronouncements:
It is a proposition too plain to be
contested, that the constitution con
trols any legislative act repugnant
to it; or that the legislature may
alter the constitution by an ordin
ary act
"Between these alternatives there
is no middle ground. The Consti
tution is either a superior para
mount law, unchangeable by ordin
ary means, or it is on a level with
ordinary legislative acts, and, like
other acts, is alterable when the
legislature shall please to alter It
"If the former part of the alter
native be true, then a legislative act
contrary to the Constitution Is not
law; if the latter part be true, then
written constitutions are absurd
attempts, on the part of the people,
to limit a power in its own nature
illimitable.
"Certainly all those who have
framed written constitutions con
template them as forming the fun
damental and paramount law of
the nation, and, consequently, the
theory of every such government
must be, that an act of legislature,
repugnant to the Constitution, is
void. . . .
"It is emphatically the province
and duty of the judicial department
to say what the law is. Those whe
apply the rule to particular cases'
must of necessity expound and In
terpret that rule. If two laws con
flict with each other, the courts
must decide on the operation of
each."
Marbury v. Madison was followed
in 1810 by Fletcher v, Peck, and in
1819 by McCulloch v. Maryland In
which cases the supreme court of
the United States first held state
legislation to be unconstitutional.
All of the state supreme courts
have now assumed the same power,
so that in effect in the United
States, the Judiciary has the final
word as to the validity of legisla
I have dealt at some length with
the development of this theory of
judicial review as contrasted with
legislative supremacy, because it
has served as one of the most im
portant legal controls for adjusting
and harmonizing conflictine and
overlapping desires and claims un
der our constitutional government.
It has appeared as a political is
sue which has agitated the country
at intervals ever since it was defin
itely applied by Marshall. Through
the Dredd Scott decision it must
take part of the blame for the Civil
war.
Weatherford Unmatched
In Educational Service
In the death of J. K. Weatherford
of Albany the state of Oregon has
lost a citizen who has probably de
voted more years than any other to
advancement of education In this
state. His record of 50 years on
the school board of his home city
and 44 years as a regent of Oregon
State college is believed by educa
tors to be unmatched in the United
States.
Dr. Weatherford was, before his
death, the second oldest living grad
uate of O. S. C, the oldest being
Mrs. Mary Harris Whitby of Ben
ton county who was graduated In
1871, while Dr. Weatherford be
longed to the class of 1872. He is
also claimed by the class of 1923
as it was at that commencement
that he was given' the honorary de
gree of Doctor of Laws, being one
of the first two to receive that hon
or from his alma mater.
Appointed first by Governor Z. F.
Moody when Corvallis college was
taken over completely as a state
Institution In 1885, Dr. Weatherford
served continuously through the ad
ministration of five successive gov
ernors. After 16 years he became
president of the board and contin
ued In that capacity until the sin
gle boards were abolished In 1929.
He had served on 'the board .22
years and as Its president six years
before Dr. W. J. Kerr was made
president of the college In 1907.
The Influence of Dr. Weatherford
is recognized throughout the insti
tution to which he devoted so much
of his time and talents. As a spec
ial monument to his devotion stands
beautiful James K. Weatherford
hall, the men's dormitory, one of
the last and finest buildings auth
orized by the regents under his direction.
Shelvador Refrigerators. More
space for your money. Case Fur
niture Co. 9tf.
Even for short trips
1)1
or Tnurnrr
Much safer than money....convenient
and economical to use .... travelers
checks provide you with ready cash
yet protect you against loss and theft.
By relieving you of worry about such
matters these checks can add much
to the enjoyment of vacation and bus
iness trips.
Before leaving on any trip secure
your Travelers Checks at this branch
where they are issued in handy de
nominations of $10, $20, $50 and $100.
E. L. Morton, Manager
HEPPNER BRANCH
The FIRST NATIONAL DANK
Of PORTLAND
1
"OIMCT NAHONM MM
ornm
NOW!
Just two weeks until
the
4-H Club Fair and
Wool and Grain Show
MORROW COUNTY'S OWN FALL FESTIVAL
AU.
34
NO BETTER ENTERTAINMENT, NO MORE ATTRACTIVE
PROGRAM HAS EVER BEEN ARRANGED !
SPORTS OF THE OLD WEST 1:30 EACH DAY
Admission General 75c, Grandstand $1.00, Reserved $1.50.
Children over 12 50c, except Friday when all children will be ad
mitted free. Reserved Seats on Sale at Hotel Heppner.
BROWNING CARNIVAL COMPANY WITH THREE RIDES
Dancing Each Evening!
GRANT COUNTY DERBY ON FRIDAY
for $100 purse given by John Day business men
Heppner Invites You