Tillamook H««dIIght Jan« 2?, lftfS
PORT CASE
If h® justifies. he must set out his title i plan of home rule. If a munieip il
specifically. It is not enough to allege i corporation is permitted to extend its
generally that he was duly elected or boundaries step by step, indefinitely,
to the office. He must plead | without the sanction of the state or
e Court Decides appointed
facte, showing on the face of the plea people of the districts included in the
linst the Port.
that he has a valid title to the office. extensions, it would subversive of the
The State is not bound to show any very plan as expressed by the people
Pebbleford, bottled in bond, per bottle, $1.50
thing ’’
in their sovereign power through the
of Oregon, upon the
In
Section
1554
Id.,
we
find
the
fol
Clarke's
Pure Rye, bottled in bond ..
ballot,
and
not
a
reasonable
exercise
of
f S. V. Anderson and
lowing: “The certificate of election of the power conferred. To this extent,
iderson.
Appellants,
Per bottle, 1.25
an officer, or his commission, coming the proceedings in question are not
V.
from
the
proper
source,
is
prima
facie
Echo
Spring,
bottled
in
bond
...............
“
local
”
or
“
special
”
within
the
mean
illamook. H. T. Botts,
Keg Beer..............
.......... 15 gallons $5.75
evidence in favor of the holder; and in ing of the constitutio , and are not
ils, D. Fitzpatrick,
Per bottle, 1.25
every proceeding, except a direct one germane to the government of the
Keg
Beer
............
........
10 gallons 4.00
Jton, Jr., and M. F.
to try the title of such holder, it is con port. They are inconsistent with the
Old Crow, bottled in bond, per bottle, 1.50
Respondents.
Local bottle Beer.
6 dozen quarts 10,00
clusive; but in quo warranto the court plain import of our orgonic law.
Hermitage, bottled in liond, i>er bottle, 1.50
from the Circuit Court of will go behind the certificate or com
Local bottle Beer
Section 3209, L. 0. L., authorizing
10 dozen pints 11.1X1
; County. The Hon. H. L. mission, and inquire into the validity of the annexation of new territory to
Cyrus Noble, 3 Crown .................. ... 1.50
udge. Argued and submitted the election or appointment, and decide municipal corporations, required the
O.T.O., bottled in bond, per bottle, 1.25
.12. Ralph R. Duniway, (J. the legal rights of the parties upon consent of the people of the area to be
.ry in brief) for Appellants, full investigation of the facts.”
annexed, The same safeguard is con
Kentucky Dew, j gal., bottled in bond 2.25
its for respondents. Bean J.
It is a well settled rule in Oregon tained in the act of 1911, which pro
Kentucky Dew, full pint,
75
that the notices reuuired by statute to vides ior the changing of the boundaries
an action in the nature of be given for a special election, consti of ports, and prescribes the manner
John Dewar & Sons, Old Scotch
ante, brought by the state up- tute a condition precedent which must for proceeding to annex new territory
Budwiser Beer............ 6 dozen quarts $15 00
Whiskey..................................................... 1.50
lation of S. V. Anderson and be observed in order to validate the thereto: \See laws of Oregon, 1911.
such This isVa salutary requirement and
inderson against H. T. Botts, measure to be voted at
Budwiser Beer
10 dozen pint* 16.00
Black & White, Old Scotch Wliiskey. 1.50
eals, D. Fitzpatrick. James election. The purpose of the notices seem* to be the policy or the law. It
Old
styler
Langer
Beer.10
dozen pints 18.60
V.O.P.,
Old
Scotch
Whiskey
............
1.75
is
within
the
spirit
and
letter
of
the
Jr., M. F. Leach, and the Port is to inform the legal voters of the
nook, to determine the right of time, place and object of the election. constitutional provision for the enact
Sandy
Macdonald’s Old Scotch
Considering now the evidence pro ment of local measures by means of
endants. to act as a mniucipal
Whiskey ...•............................................. 1.75
ion.
From a judgement in duced by defendants, it appears that a the initiative. We know of no
defendants, plaintiff appeals, petition, containing a requisite number authority, either delegated or reserved
Hunter Baltimore,
Rye
Scotch
implaint is signed by the dis- of signatures, was presented to the to the people of a numicipal corpor
Whiskey ................................................... 1.50
orney of the proper district, county court of Tillamook county, re ation, permitting the enactment of a
eged that the defendants are questing that the question of incorpor local measure for the extension of the
Canadian Club...................... .................... 1.50
White Port, Old Monk Brand $1.00 pur «al.
lly exercising a public office ating the port be submitted to the boundaries of the municipality so as to
I. W. Harper ............................................. 1.00
chise within the state of Ore- hgal voters; that the county court include a large section of country,
Port Wine..................................... 1.00 per gal.
iffieers of the Port of Tilla- made an order providing for the hold without the consent of the legal voters
Harvester Old Style............................... 1.00
without the same being duly ing of a special election therefor, and who reside in the area to be annexed.
Sherry
........................................... 1.00 per gal.
Monogram ................................................... 1.00
•ated; that the allege port is a directing the county clerk to give There is no doubt but that the people
75c. per gal.
Claret
...................
■........................
of
the
whole
state
could
pass
such
a
notice
of
such
election
to
be
held
on
unicipal corporation, attempted
Kentucky Dew............. '............................ 1.00
Angelica
.......................................
1.00 per gal.
Drmed under the act of 1909 the twenty-fourth day of August, 1909; law. The assumption of such power
Billie Taylor, full quart........................... 1.25
>f Oregon, 1909, pp. 73-33) ; that that at a special session of the court on by the Port of Tillamook is not in
Zenfendel ................................... 1.25 per gal,
lators are residents and tax- the 31st day of August, 1909 ; 248 votes consenance with our laws granting to
Coronet Dry Gin................................ Per bottle
1.00
Tokey ........................................... 1.25 per gal.
vithin the territory of the pre having been cast in favor of incorpor municipalities and districts, the privi
A.V. H. Gin............................................ Per bottle
1.75
sort: and that the defendants ating the port and 172 votes against the lege to enact local or special laws.
An attempt was made to repeal the
irs of such corporation, are at_ same, the court made and entered a
Gordon Sloe Gin.................................. Per bottle
1.75
ig to issue a large amount of proclamation declaring the Port of charter granted to the Port of Tilla
Gordon
Dry Gin.................................... Per bottle
1.25
and render the relators liable Tillamook to be duly incorporated as a mook by the legislature, the effect
municipal corporation, pursuant to the thereof was not a reorganization of
A
payment of a part thereof,
Rock and Rye........................................ Per bottle
1.00
of 1909; that thereafter the gover the port within the contemplation of
complaint avers in detail that act
El Bart Gin................................................... 1.25
the provisions of the laws of 1909. We
nor
appointed
a
board
of
five
commis
•poration and the acts of the sioners for said port, consisting of the see
no reason why the original Port of
’
Virginia Dare Wine............. Per bottle 75c.
ints are illegal, for the follow- defendants,
Monogram...............................
per gal. $5.00
H. T. Botts, A. G. Beals, Tillamook is not a valid corporation.
sons : (1) That the original Port D. Fitzpatrick,
Port Wine............................................ Per quart
35c.
It appears that the main purpose of
James
Waltin,
Jr.,
and
per gal. 4 00
White Corn Whiskey..........
amook was created by, and M. F. Leach, who duly qualified; that election was to change the boundaries
Sherry Wine.........................................
35c.
;ed under an act of the legis-
Harvester Old Style ...........
per gal. 4.25
commissioners, H. T. Botts and D. of the Port of Tillamook so as to em-
assembly approved February 21, the
Angelica Wine.................................... Per quart
35c.
prace new territory. The question of
Fitzpatrick
were
re-elected
at
the
gen
McBrayer, 13 years old ....
per gal. 6.00
Laws of Oregon, 1899 pp. 419- eral, November 8, 1910, their term annexation was not submitted in such
Zenfendel Wine ..................... Per quart 35c.
ind has ever since existed as a having exired; and that they qualified a manner as to allow ‘he legal voters
Echo Spring.................. '....
per gal. 4.25
numicipal corporationr that it as such commissioners. Their certifi-
Tokey
....................................... Per quart 40c.
th®
area
to
be
amended,
to
vote
certifi
per gnl. 2.75
Chestnut
Grove
Rye
............
cedall of the corporate limits of cates of election and appointment separately from those within the limits
Cinret...................................................... Per quart
25c.
ity of Tillamook, and fifty feet were produced in evidence.
Ketituckey Dew....................
per gal. 2.25
of the municipality. It is indicated, as
:h bank of Hoquarton Slough
White Grape Juice ........ .......................... 75c.
As far as the form of the proceed far as can be ascertained from the bal
Alcohol ...................................
per gal. 4.00
the east boundry of the city
lot, that the outside voters were op
Local Beer, quart ■ Three bottles for 50c.
ard to and including Dry Stock- ings are concerued, we think the de posed to annexation.
Cornet
Dry
Gin
.....................
per gal. 4.00
The
election
ar; that the attempt to rein- fendants made a prima facie case. held, and the action taken pursuant
Domestic Beer, quart.Three bottles for 75c.
ate the Port of Tillamook is The statute does not require a record thereto, did not effectuate an enlarge
>ecause the proceedings thereof, of the posting of such election notices. ment of the port, and were unauthor
the provisions of Chapt 39, Laws The defendtnts show a compliance with ized and void.
), by petition to the county court, the statute up to the time that it was
A discussion of many of the ques
>y an election held pursuant there- the duty of the clerk to issue and mail tions referred to in the briefs, would
■mbraced the same territory as notices to the judges and clerks of the be unfruitful, as the necessary legis
included in the former port, to- election in the different precincts. Then lation for the extention of the bound
er with a large additional area; the law steps in with the presumption aries of incorporated ports was enacted
:hat no notice of the election for that this official duty has been regular in 1911. In conformity with section
I incorporation of the present Port ly performed, which in itself stands as 3, article VII of the constitution of this
■
♦
'illamook was published as required prima facie evidence that the notices state, all of the evidence being con
were issued and posted.
law.
tained in the record, the judgment of
The circuit court found that, pur the lower court will be reversed and
He defendednts, in their answer,
up the proceedings under the act of suant to the order of the county Court, a judgement entered here in accord
I for the organization of the port, the county clerk duly issued notices for ance with this opinion.
denied the other allegations of the the holding of a special election called
plaint. The reply puc in issue the by such order; that the notices were,
Poor Old Boy.
matter contained in answer. Up- transmitted to the respective judges
he trial of the cause in the circuit and clerks of the election in the var
■t. it was agreed that the burden of ious precincts described in the petition; I visited today the old home place,
defendents,
the place I lived when a lad;|
if was upon i the
“
‘ ' J *" and that the notices were, by such
evidence,
but judges and clerks, duly posted within Where I whittled and fished from
introduced
their
several
precincts
more
than
10
showing
that
morn to night, or worked the plow
Juced
none
had been days prior to the holding of such
with dad;
ices of the election
<
election.
This
finding
was
warranted
I heard again the mocking birds
jed or posted. Plaintiff alleges
sing, aa once they sang with joy,
t because of a failure to give notice by the evi lence.
The
real
cause
of
the
controversy
in
But it seemed the song they sang
the special election, a large number
this
case
wai
the
extension
of
the
today
was ‘‘Poor old boy.”
egal voters, who were opposed to
h proceedings, were prevented from limits of the original Port of Tilla Through rooms that held memories
ing, and that the result was thereby mook. It is asserted by the relators
the past I wondered all alone,
that there was no staute authorizing In of the
nged.
dark I found a trundle .tied
Jean, J. The principal contentions incorporated ports to extend their
that once had been my own.
the part of plaintiff are: (1) That boundaries, until the passage of the act I fancy I heard my mother’s voice,
re was no authority of law for organ of 1911 (See Laws of Oregon, 1911, p.
again we knelt to pray.
dsWHt
ic or recognizing the present Port of 157). It was therefore impossible for Bnt instead of ‘‘Lay me down to
lamook, and at the same time ex- the Port of Tillamook, as created bv
sleep,” ‘‘Poor old boy," she seem
iding the boundaries thereof, so as to the act of 1899, and known as the
ed to say.
di
lude territory outside the limits of legislative port, to take proceeding in
i port, as created by the act of 1899: 1909 to reorganize and extend its boun Down past the yard o’vergrown
with weeds, down past the old oak
that in the attempt to organize or daries, at a time when there was no
tree.
ognize the Port of Tillamook, the authority of law therefor.
The portions of the amendments to I wandered to where, with sweat on
.’endants did not show that they corn
brows, we plowed, my dad and
ed with the statutory requirements the constitution applicable to this
question, are as follows: “The legal
me.
to notices.
It is enacted by Section 366, L. 0. L., voters of every city-and town are here The old plow leaned against the
it, “An action at law may be main- by granted power to enact and amend
fence; as I raised it from its bed.
ned in the name of the state, upon tbeir municipal cnarter, subject to the All coveree with rust, it mournfully
s information of the prosecuting at- constitution and criminal laws of the
creaked, “Poor old boy," was
■ney, or upon the relation of a pri- state of Oregon. ”, "The initiative and
what it eaid.
te party against the person offending, referendum powers reserved to the peo-
the following cases; (1) When any ?le by this constitution are hereby I laid it bach in the same old place
where we left it years ago.
rson shall usurp, intrude into, or un- urther reserved to the legal voters of
vfully hold, or exercise any public every municipality and distrii t, as to When it »eenii I heard as in the
days of old the dinner horn loud 41
ice, civil or military, or any fran- all local, special and municipal legis
ly blow.
jise within this state, or any office in lation, of every character, in or for
corporation either public or private, their respective municipalities and “Come wash for dinner, boy,” said
dad, and we started to the stream.
eated or formed by or under the au- districts. The manner or exercising
ority of thia state; or, (2)-------- (3) said powers shall be prescribed by As I bathed rny face in the nectar
there. I awoke and found 'twas a
»en any association or number of per general laws, except that cities and
dream.
ns act within this state, as a eorpora- towns may provide for the manner of
,______ ” . | exercising the initiative and referen- I awoke. The sunlight streaming
>n, without being duly incorporated.
ition
363 --
L. O. L., the
«-«C
— “
A- . writ of 1 dum powers as to tbeir municipal legis-
down cast a shadow by my side
> warranto
is — abolished.
It _a is,
how-
, • lation.
Not
more than
ten per TAX cent
of Of buildings tall, and I could hear
•
.«
.
■
.
•
__
.
_
-A
_
->
!
_
____
.A
—
——
■tfW-imvAzt
AWIUV
er.
form UIAt
that is
abragated j t It
legal
be -------
required
to ~ order
JT, wily
Irillj the
Hit lurill
ID «WK
6ai voters may —
■---------- —
the din and noise outside.
th ’» « section. The jurisdiction and . the referendum nor more than 15 Der
ti
per The whirl of cars through the crow
arts
are
not
changed,
cent
to
propose
any
measure,
„by
the
w»» nf the courts
changed. |
an'
ed streets, the ceaaeteae, unend
ie .»med les heretofore
1-^— .——. — — — obtainable
---------- initiative, in any city or town.
ing tread
'
In
engrafting
these
amendments
in
des ikose forms may be obtained by
Of the crowds below seemed to
action at Law. For an elaborate to the fundamental law of this state,
chant a strain, “Poor old boy,”
icaaalon of an action in th» nature of the people inaugurated a scheme for
o’er and o’er they said.
lings local self government. Thev paved
o warranto, and the proceedings
erela. see the opinion by Mr. Justice the way for the enactment of local or O dear old homestead of the past I
O dreams that n’er come true !
The qualifying
oora. In the recent case of State ex special measures.
f. Brown v. Sengstachon, Or., 122 word?. "local” and “special,’' relating My heart goes out in the silent
night through long years back to
to municipal legislation, as used in
>c. Rep. 292.
you;
Wo wf]i take up the questions re art. IV. la. arc synonymous terms and
rrwi to in the inverse order. In an mean enactments intended to affect And I know if tonight you could
make a wish, a wish you know
■tioe »Ort«king of the nature of quo only certain persona, or to operate in
would come true.
arrawto, in the absence of any legis- specified localities only.
The desti notion between s general I know you would wish for the
<* controlling consideration to
“Poor old boy” and the old folks
e 'WSiary, the rule that the onus law and a local taw is not easily de
back with you
■obaadi is npon the respondent, sp fined. It hss often been found ex
ies. «nd the defendants must prove pedient to leave tne matter open, to a —Annie Huff, in the New England
Farmer
• aa'atence of the corporate fran- considerable extent, for determination
H»ljte<:to Keep Dowa *x*ewM.
Notice of Final Settlement
ias which they are alleged to have upon the special circumstances of each
feMra. J. E. Henry, Akron, Mich.,
urpwt and their title to the offices, case. In the absence of any clear and
tella how nhe’.did ao: '‘I waa bother
When your child has whooping
In the County Court of the Mate of ed with my kidneys and had to go
■th the wrongful claim or usurpation express declaration to that effect, tn cough be careful to keep the cough
the amendments to our »m“'1*’'
Oregon, for the County of Tills- nearly double.
wbtah they are charged.
I tried a aample of
mooli.
..
......
___ Foley Kidney Pilla and they did
We Bed that in ordinary civil actions, which are the source from which the loose and expectoration easy by giv
authority
emanate»,
only
those
powers
ing Chamberlain*a Cough Remedy
« tawden rests upon the plaintiff to
In the Matter of the Estate of Wil- me eo much good that I bought a
tag* and prove hia title to the thing incident ami germane to the '“‘“’•‘¿P*1 aa may be required. Thia remedy
liam D. Jones, deceased.
bottle, and feel that they saved me
government
may
be
deemed
to
be
dele
roeteoversy. In quo warranto prv-
will also liquify the tough mucus
N oticb » H imbhy G ivkn ,—That a big doctor’s bill.” lamir1« Drug
cted
or
reserved.
Such
mumcipal
’**•«•». we find th» rok reversed, and
and make it easier to expectorate
the administrator of the Estate of Store.
«•»*» upon the respondent to show corporations are always subject to the It has been used succeenfully in
William D. Jones, deceased, hss
control
and
regulation
of
the
• IMrto th» office or franchise in
Mrs. M. A. McLaughlin, 512 Jay
many epidemics and is safe and
filed in said county court hia final
lawmakers
of
Ux
state,
in
man-
■FK*. If he fail» to show complete
sure. For sale by all dealers
account of hia administration of St., lacro»», Win., writes that she
ner
directed
bv
the
eonstitaUon.
lodgment ia rendered againat him
aaid eatate, and the county judge suffered all kinds of (mine in her
Mb to ervll actions ptaintiff recovers While these public corporation» ce
4
k
has ap|M>inted Tuesday the 2nd day back and hips on account of kidney
■on bto own title, in an action in the capable of adopUng and amending their When Buying. Buy Only tha Beet.
“I got
of July. 1012. at 10 o'clock a.m.. as trouble »nd rheumatism.
IKl
two »f quo warranto, the respondent charter, they a Uli continue to be. Costs no more but gives f>est rratilts.
the time for the hearing of objec some of Foley Kidney Pills and
Kt i . i IE Cl CAIAJ
of the state. A general co»-
«hew that be has a good title aa acancias
after
taking
them
fol
a
few
days
tions to aaid final account and for
tST••left in the tagtatative^aammbly
H. L Blomquist. Eadaile, Win.,
the government.
the settlement thereof. Dated May there was a wonderful • hang» in
At
the
tame
time
the
peopl
e
reta
in,
aays hia wife consider« Foley’a
Nv Wllion, in his work on Muntci-
■ Ufl1
my caae, for the pain entirely left
Nth. IMS
(tasporationa. Vol 4 (Bed ). See. under the initiative and referendum Honey and Tar Compoumi the tieet
my l»a< k and hi|>a and I am thank
Davin W. J ox as,
full
power
over
them.
Therefor
such
cough cure on the market “She
1
: "In a proceeding by in-
ful there is such a medu me aa
Administrator
municipal
authority
to
act
upon
kwal
has tried various kinds l»ut Foley a
■<*« in ths nature of a quo war-
A. A Dwxasgs A J. W. Dnaran, Foley Kidney Pills." Ijimar'e
should be exercised with doe given the bent renult of nil " La
»*e defendant must either dis- matter»
lir'ig Stere.
Attorneys fur said estate.
Hume Made al the Cold Slot.
regard
to
the
right
o'
idjointng
local-
mar’s Drug Mofto
> ss^uatify. |
dtoelaiw^tte
ittaw and ta harmony with the gm-sral
BOTTLE GOODS
Special Prices for
Family Trade.
Domestic Beers.
WINES.
AT
BILLY STEPHENS,
WHOLESALE AND RETAIL DEALER,
Cor. First and First Avenue East.
4 ! 1
HEADQUARTERS FOR
§
DAIRYMEN’ AND
S SUPPLIES
STEEL STOVES & RANCES
We carry a Large Stock of
J
Hardware,
Tinware, Glass
and China,
Oils, Paint. Varnish, Doors, Window
Sashes,
Agents 1 for the Great Western Saw
ALEX McNAIR CO
The Most Reliable Merchants in Tillamook County.
Chas. I. Clough, Tillamook.
Ask for Mokatil
i
I
I