Tillamook Headlight, January fid. 10(2
■»a
Ki
19th, 1909, . CommiMioners
Port under the Act of 1909 (L. O. L. I On _ Sept.
r
.
This case it Seems to us must be de the legislative intent.” |86 Cyc 1127
Secs. 6114 to 6125) over territory occu- Leach, Fitxpatrick and Walton, met cided in favor of the plaintiffs upon and cases cited therein.
pied by the Legislative Port of Tilla- and undertook to elect officers for the the other questions, so we have reserv
As said by the Supreme Court of
Port of Tillamook, and said commis ed the constitutional qiAstions for the
mook.'
Minnesota : “ The books are full of
It is also demonstrated that prior to sioners had no power or authority to last in this Brief.
cases in which words have been
the laws of 1911, page 157, there was meet and organise aa a Board and elect
In case the Court should not decide omitted, supplied
and
trans
no way to extend the boundaries of the officers for the Board.
in favor of plaintiffs upon the other posed." State v. Bates 96 Minn.
Section 8, Laws of 1909, page 86.
Legislative Port of Tillamook.
grounds, then we most urgently urge 110, 104, north western 790 ; 113
L. 0. L. Section 6122.
It is also demonstrated that the de
upon the Court this very important
Thia ia material upon this direct constitutional question, and pray a de American St. Rep. 712 ; also eee
fendants are illegally attempting to do
Commonwealth vs. Grinstead 55 Sw
what cannot be done', so that the judg attack.
cision in favor of plaintiffs upon that ‘A) ; Quoting from Enlich on In
ment should be granted as prayed for
Bennet Trust Co. vs. Sengstaclcer, question.
terpretation of Statutes as follow» :
(Or.) 113 Pac. 869 870.
by plaintiffs.
*‘W hen the language of a statute in
Defendants are forced to ask the
For failure to com]
imply
" with the mode
its ordinary meaning and gram
Court to legislate and supply omission , and manner provide-
____
lea in
the _______
statute of
In reply to the argument adduced matical construction leads to a
in statutes. The Court has no right to 1909, (L. O. L. Secs. 6114-6125), i and
legislate. The^court can only interpret set forth in three subdivisions, A. B. by the attorneys for plaintiffs, the manifest contradiction of the ap
the law passed by the law-making C. & D., the judgement should be defendants will not undertake to parent puriMise of the enactment,
further discuss the first proposition to inconvenience or absurdity,
power, and not pass the law.
granted as prayed for by plaintiffs.
not pre
as to the invalidity of the act pur hardship or injustice,
(Six Supreme Court decisions are
FOURTH.
porting to establish the so called sumably intended, a construction
here cited.)
The defendants put in allegations in legislative Port of Tillamook further may be put upon it which modifies
THIRD.
Even if the defendants were free to their answer and argument in their than to say, that we deem it a mat the meaning of the words, and
incorporate the Port of Tillamook un Breif in tne nature or confession and ter of sound principle that the peo even the structure of the sentence.
der the laws of 1909, L. O. L. Secs. avoidance, to the effect that even if ple of the State of Oregon should This is done sometimes by giving
6114 to 6125, they did not substantially the incorporation of Defendant Port of not be held to have ever authorized unusual meaning to particular
words, sometimes by altering then-
Word was received in this city on Monday evening comply with said statute and the plain- I Tillamook is illegal, then the State is its legislature, or to have attempted collocation
or by rejecting them
tiffs should have judgment on this ■ estopped from maintaining QUO WAR themselves, to have authorized any
that Judge Benson had decided the Port of Tillamook account.
RANTO. and neither the State nor any portion of its citizens, less than the altogether or by inter|mlating other
words,
the
court
having an irresia-
individual has any remedy.
whole, to excerise the powers of
case in favor of the Port. The suit was brought against
A.
We submit that the evidence shows government over any other of its table c nviction that the modifica
The
petition
was
not
presented
to
I
the Port by S. V. Anderson, backed by Fairview farmers, the
__ County
__________
_ and acted upon _ at n0 foundation in fact for the defen- citizens or their property, and thus tions thus made are mere cor
Court
rections of careless language, and
who employed Attorney R. R. Duniway, and was to the session of the Court which had dants to argue laches or acquiescence, exclude a portion of the citizens of give
really the true intention.”
the
S
ate
and
their
property
from
jurisdiction
to
act
upon
the
same,
and
I
evidence
demonstrates
the
dis-
enjoin the Port from negotiating bonds and from col the evidence sustains the complaint. satisfaction
the
“ of '“
■** farmers all the time. participating in governmental mat Page 4W, Sec. 295.
In view of this rule of construc
lecting taxes to pay the same, and that the present Port pages 6, 7, and 8. in that regard. All As soon as the defendants took steps ters affecting the same.
tion it is apparent that the co.irt
to try to issue bonds for large amount
As
to
the
second
point
discussed
the
proceedings
were
over
before
they
was illegally elected and usurped the powers of the old could be legally started. Tne order and to try and do anything serious as a by the plaintiffs in their brief, we will read into the Statute in See.
Port.. The case was tried before Judge Benson, was not made by the proper Court. Port, then the farmers in large num insist that tbe cases and authorities 6110 L.O.L. following the provision
the proceedings were never legal bers took the matter in hand and cited by the plaintiffs to the effect that election ” is to be held not less
who took the case under advisement. Attorney H. Thus
caused the State to institute these pro that an attempt to incorporate a than forty days nor more than sixty
ly started.
municipality under general law days” the word ‘'thereafter,” or
T. Botts was the Port’s attorney.
Defendants in their brief try to ceedings in QUO WARRANTO.
The defendants have done nothing as while the special act incorporating some expression o' similar import
maintain that the statute under con
The Judge, in summing up the case, found that the sideration
authorizes the County Court i yet except to levy and collect a com it is in force, are to bedistinguiahed rather than to put the construction
proceedings leading up to and the formation of the Port to pass upon the petition at ahy “ses paratively small amount of illegal taxes by the present situation in that, ■■H»on thia section that the legisla
” or "sitting” of the County Court, . and threaten to issue a large amount of in the citations given, the general ture intended to require any election
of Tillamook had been strictly complied with, and the sion
and the only requirement of the statute ' bonds. No one will be inconvenienced law did not contemplate that cor to lie continued from clay to day for
a period of time front forty to sixty
Port was exercising its powers according to law. As is that the County Court make the or by the law being applied in thia case. porations then existing could avail days.
To fail to apply the law, as the de themselves of the general law, or if
der
at
an
early
"session
”
or
"sitting
”
there was some doubt as to the status of the old Port of the County Court.” Defendants fendants ask to have done, would result they were permitted to avail them If anything further were neces
in a municipal corporation being al selves of its provisions a special sary to convince the court of the
created by the State Legislature in 1899, Judge Benson cite,
State vs. Edmonds, 55 Ore. 236, as lowed to exist illegally because the i>rocedure was prescribed to be provision of the general law con
sweeps aside the contention of the plaintiffs that it was their
Courts would not enforce the law.
ollowed but not followed in the cerning election». Title 27, L.O.L.,
authority.
still in existence, for he says : “That since the organi The statute construed in State vs. We submit that the defendants have cases cited by the plaintiffs. In the Sec. 3311, providing that all general,
Edmonds, 55 Ore. 236 on 240, reads in neither evidence, reason, or authority, present case the port act of 1909 special and presidential elections
zation of the said Port of Tillamook, as lieretefore in this
to support this remarkable contention clearly contemplates that existing held in the State shall be conducted
regard as follows:
ports should be entitled to the under the provisions of that net,
corporated by the legislature of the State of Oregon, in “Saia Court shall, on the eleventh made by them.
State ex rel vs. Des Moines 96 Iowa, privilege of coming within the pro and that the polls shall be opened
(Uth) day after the election, or as
the year 1899, has not exercised, or attempted to exercise soon
521.
visions of this act as well as local at the hour of 8 o’clock in the fore
thereafter as practicable, hold a
ities not then covered by legislation noon and continue open until 7
any of the powers or authority conferred upon it by the special session; and, if a majority of Sec. 31 L. R. A. 186 on 192-192.
upon
the pert situation.
Sec.
65
N.
W.
R.
818.
o’clock in the afternoon of the same
votes hereon in the county as a
act of the legislature, but has acquiesced in the forma tne
The legislative port so called could day, to which time the polls shall
whole, or in any subdivision of the discusses a state of facta and contains
tion of the Port of Tillamook, the defendant herein, as County as a whole, or in any precinct reasoning which shows that in thia case not at any time after 1906 have been be closed. There is no provision
the County, are 'For Prohibition,’ the plaintiffs should prevail, and de dissolved by the legislature. It suggested in this general law any
re-incorporated, as aforesaid, and does, and has recog- of
said Court shall immediately make an fendants’ suggestion is without merit. could only be dissolved by its peo where which contemplates the hold
See 31 L. R. A. on 191-193, where ple under the provisions of Section ing of any general or special
ized, and acknowledged its validity.’’ Concluding the order declaring the result, etc.”
The Supreme Court of Oregon holds the Iowa Court points out the follow 1, Article IV., and Section 2 of Art election for more than one day, and
Judge finds :
icle XI of the Constitution of Ore the provisions of 6116 for the calling
in State vs. Edmonds, 55 Ore. 236 on ing facts in that case:
us the same are now amended. of a special election, it is manifest
That the defendant, the Port of Tillamook, is a 240, that “session” as used in that "But aside from this, the record in no gon,
It is true that our Supreme Court that the argument and position
has reference only to a tempor way indicates a public interest to be
corporation, duly organized and existing under and by statute
in
the
case of Acme Dairy Co. vs. assumed by the plaintiffs herein is
ary sitting of the Court in the trans subserved by a judgment avoiding the
Astoria, 49 Ore. 520, stated that the without any merit whatsoever.
virtue of the provisions of Chapter 39 of the laws of action of special business then assign present corporate existence. Not one legal
voters of a city or town did
to them, and the Court may sit in of the 60,000 or more inhabitants of the
As to the presumption as to notice
Oregon of the year 1909, and that in i all respects the ed
special session at time designated in city as now constituted makes a com not have reserved them the right ofi being given, the defendants are
repeal
of
their
charter,
but
this
plaint,
nor
does
it
appear
but
that
all
statute
when
all
members
of
the
Court
content to submit their position
provisions of said law have by the said defendants
are entirely satisfied with the change statement is mere dictum and un upon the authorities heretofore
are present, etc.
been fully complied with.
The statute under construction in the that has been made. The relator, but called for in the decision in that cited, and upon the presumption
The decision of the Supreme which we contend is applicable aa
That the proceedings had by the said defendants, case at bar reads very differently and for whom the cause would not be in case.
Court, is not a resident of the city; but Court in the case of Straw vs Harris, adduced from these nutnorities.
follows:
were, and are, a re-incorporation of the said Port of is “ as Section
3. The petition for a spec he is the owner of land of the assessed 54 Ore. 424. holds in effect, that
cases cited and relied upon
of $80, giving him the legal where a port is formed under the by The
Tillamook, as incorporated by the Legislative As- ial election hereinbefore provided, valuation
the plaintiffs upon that point are
shall Ije filed with the County Clerk of right to institute the proceedings. He act of 1909 that municipalities there cases relating to the acquirement of
sembly of the State of Oregon in the year 1909.
the County, and shall be presented to in no wky claims that he ia injured by tofore existing within the bound jurisdiction in the first instance,
the change, or is likely to be. The aries of the port, that extinguished while in this >-ase the jurisdiction
That the acts complained of in plaintiff’s com the County Court of said County on the judgment
of ouster against the city is the powers they theretofore belli for the proceedings to be held is
FIRST DAY OF ITS NEXT REGU
plaint are valid and binding, in all respects.
claimed.as a naked legal right. Had which would be in conflict with the acquired
LAR SESSION.”
the tiling of a proiier
it been exercised with; promptness, power and authority given to the petition. liy
That the defendants are entitled to a decree of this We respectfully cubmit that the sta i cllLcl
true that notice is
’WUr was
a" aaoUlIlCU
LIlv port organized under the provisions required to It be is given,
the p<
power
assumed Uy
by the
tute involved in this case is not sus after irit;
but an exami
Court, dismissing plaintiff's suit herein.
ceptible to any construction other than ' city, we do not see why be should not of the act of 1909. The effect of this nation of the decisions of our
would
be,
of
course
to
repeal
any
have
had
his
judgment.
A
thought
is
that
the
petition
shall
be
presented
to
That the defendants herein are entitled to a judg
Supreme Court in the case of Ben
the County Court of said County on the ' suggested that the delay was to permit of the provisions of the charters nett Trust Co. vs. Sengstscken, 113
ment for their costs and disbursements herein.
FIRST DAY OF ITS NEX r P.EGU- I the authorities to act. With the rapid thus affected.
Pac. 803, in connection with the
If the effect of organizing a port decision
i changes made after the passage of tbe
LAR SESSION.”
of Roesch v. Henry, 54
?n,'y be dissolved by Act of the Legii-
The County Court could not have a act (the new government being in oper under the act of 19CN would be to Ore , 230, will disclose that even the
J
J
lature. No act of its officers or people FIRST DAY OF ITS NEXT REGU ation in April, 1890) the tendency, aa dissolve or repeal the power or
within its boundaries
could dissolve it. LAR "SESSION” OR “SITTING” , to results, was manifest; and it was authority of a city or town in some fact, if it were a fact, that not all of
FIRST.
.........................................
1 Dillon Mun. Cor. (5th code), Secs. until its NEXT REGULAR TERM. apparent to avoid great and important particulars theretofore existing with the notices were posted as required
The fiist question to be disposed cf
by law’would not lie allowed to de
is whether the Legislative Port of 331, 332, 333.
The County Court has no right to hold ■ changes, involving many ana large in the limits of the new corporation,
Norton vs. Selby County, 118 W. S. a regular ‘session* or ‘sitting’ except interests, action should be taken at we know of no good reason why feat the expressed will of the people
Tillamook, created by the laws of 1899.
who voted when it nppenix by the
425, Secs. 30 Law Ed. 178, 189, 190.
ionce. Much less time than was taken the same effect should not be given result of the election
pages 419-423, is valid or not.
at a regular term.
’ ‘ion timt
that the fail-
fail
State vs. Wolford, 90 Tex. 514, Secs.
It appears by the undisputed testi
The reasoning of the State vs. Ed , was sufficient to apprise ibe relator that to the incorportion of such a port ure to post part of the notices did
mony that the Legislature incorporated 39 S. W. Rep. 921, 923.
monds, 55 Ore. 236, 241, 242, and of the others did not intend to act. The way including within its boundaries a not result in depriving a suflicient
The Act o 1909, Sec 9, (See L. O. L. case of Lipari vs. State, 19 Tex. App. of inquiry was open to him to know the previously existing port, if one did
the Port of Tillamook in I bwb of 1899,
number of the legal voters of their
pages 419-423, and tl.at said Port or Sec. 6125) expressly recognized and 431, 433, absolutely demonstrates the facts, if he desirsd to know them, and exist, with powers of the same gen privilege of voting, to have changed
comfirms
all
Legislative
Ports.
Said
eral
nature
as
provided
for
in
the
in
view
of
the
situation,
promptness
ganized, levied taxes, performed the
correctness of the construction of this
act of 1909, but more limited in their the result.
functions of a corporation, and has Act does not provide any authority for statute for which plaintiffs are con was demanded.”
In this case, the plaintiffs huving
Also eight municipal governments scope and effect.
never been dissolved by an act of Legis placing another Port over territory tending.
In addition to this the cases cited alleged but having made no at
had been abandoned for four (4) years
lature or by judgment of any court, etc. already occupied by a Legislative Port.
B.
tempt
to prove that a large num
The legality of the Port of Tillamook As we have shown above such attempt
The proceedings are void as the ata- I ; and their functions exercised in innu in the defendants first brief herein
of people were deprived of their
created by act of Legislature 1899, to do so is void. Board Case, 111 Pac. tute plainly requires that the election merable waya by the ‘City of Des are referred to as containing an ber
illuminating discussion u|>on this right of voting by reason of notice
pages 419-423, was directly adjudicated Rep. 368 on 370.
be held for not less than forty (40) Moines.
not being given, it would seem that
Said Act does provied that any Legis days, and it was held for only one (1)
That the Des Moines case is not an subject
in the Circuit Court of the State of
Iu answer tn the argument or the court would be justified in ns.
authority in favor of the defendants,
Oregon for the County of Tillamook, lative Port may re-incorporate under day.
suming, from the fact that the
in the case of Kunze vs. Port of Tilla the provision of the Act of 1909. L. O.
The Court has no right to construe is demonstrated by the later decision statements of the plaintiffs in their plaintiffs otter no evidence ”xon
brief that the inhabitants, of the
from Iowa of
mook et al, and which was introduced L. Secs. 6114 to 6125.
away this provision of the statute.
State ex rel Harms va. Alexander, new territory could not be procured this iminl, that there was uti com
in evidence by the State. The same
The Legislative Port of Tillamook
(Six Supreme Court decisions are
to vote in favor of the extended plaint to be made on tlie score.
129 Iowa, 538.
case adjudged that the attempt to ex could, or can, re-incorporate under the here cited.)
The court is justified in assuming
port, we have only to refer to the
tend the boundaries of the Port of laws of 1909 (L. O. L. Secs. 6114-6125)
C.
| Sec. 106 N. W. R. 1021 1021, 1022.
Peo. vs. Long Beach, >02 Pac. Rep. record of tbe proceedings shown in by the votes cast as compared with
Tillamook was illegal.
when it will hsve the powers of a Port
THERE WAS NO NOTICE OF AN
the case of Kunze vs. Port ofjTilla the number of voters registered in
That judgment ought to be conclu as conferred by L. O. L. Secs. 6114 to ELECTION POSTED IN ANY PRE 644, 666.
The other case cited by tbe defen mook, where it appears that the territory and the number of votes
sive of the question of the legality of 6145 over the same territory described CINCT.
the first Port of Tillamook, or Legis in Act of 1899, pages 419-423, which
It is the law, and the respective at dants is an adjudication against the inhabitants of the new territory did cast at the preceding general elec
vote in favor of such extension.
tion, that a fair expression of the
lative Pert. Also the Legislative Port has an assessed valuation of only about torneys agreed at the trial upon this contention of defendants.
The authorities cited in Dillon Mun. (The defendants are not asking the wishes ui >ne voreis won usu
»> Tillamook was patterned after the $50(0.000.
rule of law and tried the case accord
P«wt of Portland, which was adjudged
There was no law providing how a ingly, that the burden of alleging and Corp. (Sth cd.) Secs, 66 and 67, note 1, court to legislate in this matter, this election, and that notice was
isgul tn Cook vs. Portland, 20 Ore. 580, Port incorporated under the laws of proving compliance with the law so as page 124, demonstrate that the doctrine but to interpret the law as it stands duly given. We would in thia con
and in many cases since.
1909 could extend its boundaries until to be legal incorporation of the Port of there stated, and held in those cases, and to give it a reasonable construc nection call the court’s attention to
has no application to the facta involved tion uuderthe reading of the statute the case of State v. Westport, 22
We ask the Court to compare the the Act of 1911, pages 157-161. De Tillamook was upon the defendants.
and the established rules of con S.W. 88.
Port of Portland, Act, Laws of 1891, fendants admit this to be true in their
32 Cyc. 1460, and the cases there, in this case,
| I (Eleven Supreme Court decisions struction, in connection with the
As the plaintiffs offer no authori
page 791, and the amendments thereof, brief, page three.
cited.
initiative and referendum provisions ties upon their pro|H>sition that n
Therefore there was no way in which
(See L. 0. L. Sec. 6076 and on,) with
Dillon Mun. Corp. (5th cd.) Sec. 1555 ( are here cited.)
of
the
statute
of
the
State
of
Oregon,
j
For
authority
that
QUO
WAR
the Port of Tillamook Act of 1899, the boundaries of the Legislative Port and cases there cited.
failure of the commissioners tu
in accordance with the spirit meet and organize on the fifth day
pages 419-423. They are very similar. of Tillamook could be lawfully ex
In accordance with that rule of law RANTO by State ia proper remedy. and
(Three Supreme Court decisioi^i are therein contained, evincing the after' their appointment is a ma
Tne manner in which the Port of tended to take in and tax the farmers the defendants attempted to plead and
policy of leaving to the people of terial defect, this matter weconside
Tillamook commissioners were ap and about $5,500,000 of additional prop prove the incorporation of the Port of 1 cited.)
It follows, therefore, that proceed the locality interested the right to settled. The only case cited by
pointed and elected was and is valid. erty prior to Act of 1911, pages 157-161. Tillamook and their right to bold tbe
ings cannot be defeated by any claim legislate upon local matters.
plaintiffs upon thut point being one
State vs. George, 22 Ore. 142.
The Legislative Port of Tillamook offices they are now holding.
Upon the point that the petition Cited by the defendants in their
David vs. Water Committee, 14 Ore. i attempted to illegally extend its boun
On page 6 of answer, defendants of laches or estoppel.
should
have
been
presented
to
the
brief showing the requirement in
daries over this territory and get tbe plead that notice was given, etc.
98.
FIFTH.
court at its next regular term after
power to tax and bond the $5,500,000 of
Briggs vs. McBride, 17 Ore. 640.
State alleged no notice given.
Under tbe constitution of Oregon as the petition was filed rather than this resjiect to be merely directory.
An examination of the Port of Tilla property and it was adjudged that it
Defendants did not offer any eviden amended in 1906, Section 2, Article XI, at the next regular session, we sub
As to the matter of laches anil
mook Act of 1899, pages 419-423, will could not be lawfully done in the case ce of notice.
de'endant* have
the Act of 1909, (L. O. L. Sec. «114 to mit that there is no reason shown estoppel, the
discloae that the boundaries of the of Kunze vs. Port of Tillamook et al,
Therefore this attempted election, 1 6125) is unconstitutional and void, as
always conceded that the facts iu
in
the
argument,
or
in
the
law
it
Port of Tillamook extend to all the introduced in evidence in this case.
this attempted incorporation, should be the Legislature of Oregon had no pow
the present case are not so stroug
land it is authorized to tax, and there
Then the scheme was devised of at held invalid for want of evidence of er to enact Mid la / providing Chart self, for such a requirment being U|x>n this question as in some of
read
into
the
language
of
the
statute.
is no foundation of fact upon which tempting to ignore the Legislative notice • pon this direct attack by the ers for Porta, which are municipal
The requirement of the time when the cases found in the liooks, but
defendants attempt to build an argu Port of Tillamook and create a new State in QUO WARRANTO.
corporations, and only leaving to tbe the petition should be presented I we believe that the circumstances
ment that the Port of Tillamook created Port under the act of 1909, over the
These defendants cannot rely on pre voters to say whether the Charter en
I are sufficiently strong to make the
by Act of 1899. pages 419-423. is uncon territory of the Port of Tillamook and sumption as evidence to prove their acted by the legislature shall be in was manifestly for the purpose of I authorities ujion this line quite
getting prompt action on the mat- 1 persuasive us to the soundness of
the additional territory in which tbe case in QUO W ARRAN fO proceeding effect in certain localities or not.
stitutional and invalid.
Therefore, plaintiffs contend that it farmers opposed to the scheme resided, by the State, a direct attack.
__ ‘__ '
(Five Supreme Court decisions are
fiBng
I >|
I
< additional ground for upholding
is demonstrated by the law and the evi and which contained about $5,500,000 of
(Eight Supreme Court decisions are here cited.)
7o^
h
7^rionXVld
“
nm
Remade
“‘*
dence that there is now, and has been taxable property.
here cited.)
This statute is drafted in anology to
ever since the laws of 1899, pages 419-
The only citation of defendants to the Local Option Laws with which ail at the same time that the petition tn< kid in till
The necessity of defendants invent
•
42 , a valid Legislative Port of Tilla ing this scheme and attempting to up- uphold this contention as p -au-nption are familiar.
was presented, but tbe requirement
A n to the contention of the plain-
mook, just as it is alleged in the liold it in Court, appears when one is a case of collatetal attack upon an
Before the constitutional amend of the statute clearly is that the tiffs that the Port Act o( HMM is tin-
complaint filed herein.
ascertains that to re-incorporate the election in a suit to recover upon Bonds ment of 190«. the Legislature could court should not delay action u|»on constitutional, we submit that this
Port of Tillamook and attempt to ex and is the case of Knox Co. vs. Bank, pass such a statute M that of 1909, the petition later than the time lim organization has been repeatedly
SECOND.
puHMetl *-------
upon -------------
by our supreme
court,
There being a valid legislative Port tend its boundaries under the Act ot 147 U. S. 91, and does nit support in LO. L. Secs. 9114 to 6125
ited.
---------
------ ------------
-
Said constitutional amendments have
ho <I the act
upheld tn every in
of Tillamook, could there be a second 1911, pages 157-161, cannot be carried any way the contention of defendants
Tbe
contention
that
the
statute
this
powerful reason, i the made in this case.
taken the power away from the Legis required tbe election to tie held (or atance, and upon the very ground
Port of Tillamook created over the out
--- for
-
— very
- ~
Special election held wi tn rut notice lature and vested it in the people.
same and additional territory under farmers in opposed to the plan of be-
not less than forty days seems to lie upon which the name in now nt-
laws of 1909’ See L O. L. Secs. 6114- >ng brought into the Port of Tillamootf, is v id.
Statutes have been paiied providing i so absurd ii|Min its face that no lached by the plaintilf in tllia caee.
^¡25
and the farmers can and will vote the
Marsden vs Harlocker, 48 Ore. 90, the mode and manner for the people to ' mention was made of this isiint m
We refer to the «leeiaioh of the
Plaintiffs earnestly contend that the' proposition down whenever it is at- »4.
enaet charters for municipsl corpora the original brief of the defendants Supreme Court in the «.a»«- of Straw
tempted
to
extend
the
boundaries
of
IJ 15 Cyc. 322.
■bore question must be answered NO
tions including Porta, ami such method herein. However since the plaintiffs v. Harris. 54 Ore. 424 . in containing
the Port, iu a legal manner.
Upon direct attack there arc no pre- is now the exclusive method of enact have presented an argument in a very thorough dis<u"»ioii of the
for the following reason»:
The
affirmative
vote
of
the
farmers
! sumptions indulged to uphold the title ing Charters for municipalities in Ore- ' their brief upon this point, *e constitutionality of tin» mt in
An attempt to incorporate a munici
pality under general law. while the must be obtained to lawfully extend | of defendants.
gon.
i would call the court’s attention to which the validity of if is sustained
the
boundaries
of
the
Port
over
them,
(Six Supreme Court decisions are
special Act incorporating it ia in force.
, jaiiiit,
, ‘
and I • •»•» decision
As a genera! rule, the Court will not , the well established principle of hi every
and the farmers will not so vote. See I here cited, i
pass upon a constitutional question snd i law, that ’’Where it ap(iears from hue liern ngain upheld in Ole cune
Laws
1911.
pages
157.
159.
ISO.
l>.
State vs. Larkin, (Tea.) 90S W. Rep.
a statute to be involved unless a •he context that certain words have of Kennett Trust Co. v. Sengstn'.ken.
This demonstrates the fallacy of the
The governor did not desurnale the decide
MS-616.
nn<l we refer to llie-r
decision upon that very point become« tieen inadvertently omitted from 113 Pac,
argument
of
the
defendants
on
pages
4
place
where
Mid
eommtMionera
should
State vs. Wolford, 90 Tex. 514. Sec.
necesMry to the determination of the I the statute, the court mav supply < Hoee m leaving no giouml for the
and
5
of
their
brief.
____
,
___________________________
_
meet,
nor
did
Mid
eommiMioners
meet
39 S. W. Rep. 921. 923.
[such words as are necessary to plaintiff" Io stand Upon in their
Therefor« it is demonstrated that on the fifth (5th) day after their ap cause.
The Legislative Port of Tillamook
Elliot vs. Oliver, 22 Ore. 44, «7, 49. complete the sense and to express contention upon tine question.
Laws of 1899. pages 419-423) could defendants could not incorporate a new pointment and organiM as a Board.
PORT
TILLAMOOK
WINS THE SUIT.
Judge Benson Decides that Old
Port did not Exercise any
Power and Acquiesced in
Formation of New Port.
Attorney Duniway’s Brief
Attorney Botts Reply.