Daily capital journal., June 13, 1911, Page PAGE SIX, Image 6

rHK SIX.
DAILY CAPITAL JOURNAL. SALEM. ORKOON. TUESDAY, JUNE 13, 1011.
OREGON SUPREME COURT DECISIONS
Full Text Published bj Courtesy of F. A. Tnrner, Exporter of the
Supreme Court
Woodward t. Rnrltur, Multnomah
Counly.
Tyler Woodward, respondent, v. A.
L. Harbour, auditor of the City of
Portland, appellant. Appeal from
the clrc-iit court for Multnomah coun
ty. Hon. C. U. Gantebeln, judge. Ar
gued and submitted May 13, 1911. L.
A. McNary and W. D. Fenton, for re
spondent Frank S. Grant and L. E.
Latonrette, for appellant Martin
Watrous, Amicus Curiae. Moore, J.
Reversed.
This Is a suit to enjoin placing on
official ballots, to be used at an elec
tion to be held in Portland, the title
of a proposed amendment to its char
ter, recommended by Initiative peti
tions. It is alleged in the complaint
that plaintiff, Tyler Woodward, Is a
resident and taxpayer of Portland,
which city is a municipal corpora
tion, and the defendant, A. L. Barbur,
Is ts auditor; that a city ordinance
makes It Incumbent upon that officer
to receive for filing initiative peti
tions, subject to verification as to the
genuineness of the signatures of the
pe'.itoners, and as to their respective
qualifications as electors, to be de
termined rrom an inspection or the
registration books of Multnomah
county, and unless such petition is
signed by legal voters equal to 15
per cent of the votes cast at the last
preceding city election, the applica
tion is ineffectual; that on April 6,
1911, a pretended petition was pre
sented to defendant, containing sig
natures purporting to be names of
legal voters who demanded that a
proposed charter amendment be sub
mitted to the qualified electors of the
city for their approval or rejection
at an ensuing election, setting forth
a copy of the measure; that defen
dant complying with requirements
of such ordinance, found that the
feigned petition did not contain the
required percentage of names of vot
ers of the city who were registered,
nor more than 1876 thereof, or about
800 less han were necessary to ena
ble the proposed alteration of the
charter to be referred to the elec
tors; that notwithstanding such de
ficiency defendant threatens to place
on the official ballots the proposed
amendment which, if ' adopted, will
authorize an ssue of bonds In the
sum of $1,000,000, to secure a muni
cipal paving plant, thereby imposing
excessive taxation on plaintiff's prop
erty and causing a multiplicity of
suits. i
A demurrer was interposed to the
complaint on the ground that it did
not state facts sufficient to constitute!
a cause of suit. The Issue was tried
upon the question as to whether or
not from a verification of the signa
tures of the petitioners, it was in
cumbent upon the defendant to re
ject such names as were not upon the
registration books of Multnomah
county. The court concluding that
such duty was enjoined, overruled
the demurrer and the defendant de
clining further to plead or answer
the relief prayed for in the complaint
was granted and he appeals.
Moore, J. This court, upon consid
eration of the cause after it was ar
gued and submitted, reversed the de
cree without giving a written opin
ion, in order that the mandate might
go down in time to be obeyed prior
to the election, and the reasons
which Induced the conclusions will
now be stated. The question to be
examined is, who are qualified to
sign petitions initiating measures to
be voted upon at municipal elections?
The parts of the organic act deemed
to be involved herein and which re
late to an employment of the lnltia
tve and leferendum powers reserved
to the people are as follows: "The
legal voters of every city and town
are herehv crrnntprt nnirai
land amend their, municipal charter"
Const Or. Art 11, Sec. 2.
I "The manner of exercising said
powers Bhall be prescribed by gen
jeral laws, except that cities and
j towns may provide for the manner of
.exercslng the initiative and referen
dum powers as to their municipal
l legislation. Not TTlnrft than 1A nA
(cent of the legal voters may be re-
ii"ieu io orner the referendum nor
more than 15 per cent to propose
any measure, by the initiative, in any
city or town." Id. Art 4, Sec. la.
Pursuant to the authority thus
granted ordinance number 1611 was
duly enacted by the city of Portland,
prescribing the forms of initiative
and referendum petitions, wherein
each petitioner Is required to sub
scribe to the following statement
"I have personally signed this peti
tion; I am a legal voter of the cltv
of Portland; my residence and street
number are correctly written after
my name."
The municipal enactment referred
to demands that a petition must con
sist of sheets to which not more than
20 names can be signed and the per
son who circulated the petlton is re
quired to make and subscribe to an
oatn on the back of each sheet to the
effect that every one of the petition
ers slcned his name In the
of the affiant who believes that the
several clauses of the statement last
No Man is Stronger
1 han His Stomach
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strong who is suffering from weak stomach with its
consequent indigestion, or from some other disease
of the stomach and its associated organs, which im
pairs digestion and nutrition. For wncn the stomach
is weak or diseased there is a loss of the nutrition
contained in food, which is the source cf all physical
strength. When a man " doesn't feci just right,"
when he doesn't si eon w!l I,
feeling in the stomach after eating, is languid, nervous, irritable and despond
ent, he is losing the nutrition needed to make strength.
Such a man should use Dr. Pierce's Golden Medical
Discovery. It cures tShcases of the stomach and other
organs ot digestion and nutrition. It enriches the blood,
invigorates the liver, strengthens the kidneys, nourishes
the nerves, and so CIVES HEALTH 71XD STRENGTH TO
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You can't afford to aecept a secret nostrum as a substitute for this non
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Cooking on hot summer
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With a gas range summer
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EVERY STOVE GUARANTEED
quoted apply, and are true with re
spect to each petitioner.
"The auditor of the city of Port
land shall accept for filing any peti
tion for the initlatve or for the ref
! erendum, subject to the verification
! of the number and genuineness of
the signatures and voting qualifica
tions of the persons slgnng the same
by reference to the registration books
in the office of the county clerk of
Multnomah county, and If a sufficient
number of qualified voters be found
to have signed said petition, he shall
file the same wthln 10 days after
presentation thereof to him." Id.
Sec. 5.
"Legal voters of the city of Port
land are qualified to sign a petition
for the referendum or for the Initia
tive for any measure which he Is en
titled to vote upon. Any person
signing any name other than his'own
to a petition or knowingly signing
his name more than once for the
same measure at one election, or who
is not at the tme of signing the
same a legal voter of the city, or any
officer or other person (un) lawfully
violating any of the provisions of
this ordinance, shall, upon conviction
thereof, be punished by fine not ex
ceeding five hundred dollars, or by
Imprisonment In the city Jail not ex
ceeding six months, or by both such
fine and Imprisonment, In the discre
tion of the municipal court." Id.
Sec. 11.
In order to vote at an election held
under the Port'and charter, a person
must have been a resident of that
city for six months and of the ward
or , precinct, in which he offers to
vote, for 30 days next preceding such
election and must also possess the
qualifications of a legal voter of this
state. Special Laws, Or. 1903 p. 13,
bee. 2 1. The qualifications thus add
ed are that he must be a male citi
zen 21 or more years old and native
born, or if of foreign birth that he
has declared his intention to become
a citizen of the United States, con
formable to the naturalizaton laws
thereof, one year preceding such
election; Is not idiotic or insane; has
not been convicted of a felony; and
Is not a soldier in the army or a sea
man in the navy of the Unted States.
Const Or. Art. 2 Sees 2, 3 and 5.
It will be remembered that the or
ganic act declares that not more than
15 per cent of the "legal voters"
shnll be required to propose an ini
tiative measure, while the ordinance
of Portland directs the auditor of
that city, upon receiving an initiative
petition, to verify the number and
genuineness of the signatures there
on, and to ascertain the qualifica
tions or the petitioners
by referring to the registration
books, and if a sufficient number of
qualified voters" have signed the pe
tition it shall be filed. Registered
electors are thus recognized as qual-
leu voters and only such as are com
petent petitioners to Initiate munici
pal measures. The comparison of the
handwriting of a petitoner with his
sgnature on the registration books,
which the ordinance demands of the
auditor, was evidently designed to
prevent forgery of names by persons
who pretended to circulate initiative
and referendum petitions for inter
ested parties. Such regulation nec
essarily tends to prevent fraud in se
curing petitioners, but, in our opin
ion, the qualification of registration
is an unwarranted restriction of the
right to exercise the initiative pow
er, guaranteed by the constitution to
legal voters.
Participation in the initiative of
measures to be submitted to voters
for ther approval or repudiation is
not an election wherein any choice is
required to be made, but an initiative
petition affords evidence of a desire
on the part of a few persons that the
expediency of a proposed law maybe
determined at the polls pursuant to
notice thereof. No great prerogative
of the people Is violated by the or
ganic act In prescribing a small per
centage of legal voters as sufficient to
Inaugurate a proposed law. The in
ception of enactments having been
delegated by the fundamental law to
legal voters, the authority thus con
ferred is so closely allied to an elec
tion however, that the privilege of
signing an initiative petition cannot
be abridged by any legislation that
would amount to a deprivation of the
right. White v. Commissioners, 13
Or. 317.
In Roesch v. Henry 54 Or. 230, it
was held that the phrases "legal vot
ers and registered voters" were
synonymous and that no qualified
elector was a competent petitioner
for a local option electon unless his
signature appeared .on the registra
tion books of the county of which he
was a resident. In that case the lo
cal option law had been enacted in
the entire state pursuant to Initiative
petitions of "legal voters" (Const. Or.
Art. 4. Sec. 1) but the statute could
be enforced In a county or a subdi
vision thereof or a precinct therein
by petitions signed by "registered
voters." L. O. L. Sec. 4920. The lo
cal option law thus put Into opera
tion was an entire statute previously
adopted. No measure was proposed
by the petitioners as an act formulat
ed by them. They undertook to se
cure the application of the law to
a particular territory. They were
powerless to propose any change of
the provisions of the statute which
as an entire enactment could have
been adopted or rejected in a desig
nated district and such being the
case, It was ruled, In effect, that lim
itation of the petitioners to "regis
tered voters" was not violative of
Sec. 1 of Article 4 of the constitu
tion. In the case at bar, however,
the measure proposed was not the
application of an existing law to a
particular district in which no
change could be made in the enact
ment, but it was the presenting ofnn
amendment to the charter as inde
pendent legislaton in which the "le
gal voters" were granted the right
to offer the proposed change In the
municipal law.
It will he kept In mind that the or
dinance prescribes maximum punish
ments for any violation of Its provk
sions. and also demands that the per
son who circulates the petition shall
make, and subscribe his name to. an
oath, as to the genuineness of the
signatures of the petitioners. The
law presumes that a person Is Inno
cent of a crime I,. O. I.. Sec. 799. sub.
1. Based on such deduction It fol
lows that when an initiative petition
is presented having thereon the req
uisite number of names, subscribed
to the statement that each has per
sonally signed the petitione; that he
is r legal voter of the city of Port
land; and that his residence and
street number are correctly written
after his name, and verified as re-
defect IfctMe!
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HORLICK'S
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quired by the ordinance, a prima
facie case is made, entitling the ini
tiative measure proposed to be en
tered by a proper title upon the pf-
nciai Dauots and imposing upon the
anditor the burden of showing any
rraud attempted to be perpetuated.
A vigorous prosecution of any via
lation of the provisions of the ordl
nance will inculcate a decent respect
lor its observance, and though the
punishment inflicted may not pre
vent, in the first instance, the Initia
tion or reference of measures which
should not be submitted to a popular
vote, thereby entailing expenses and
causing delays that are unnecessary,
the remedy must be found in an
amendment of the organic law chang
ing the phrase "legal voters" to "reg
istered voters' or some term of
equivalent Import.
Believing that the 800 or more pe
titioners who had not registered were
prima facie, legal voters and as such
could have exercised the right on the
day of the election by producing the
requisite proof, which is tantamount
to registration (L. O. L. Sec. 3463)
they are "legal voters" as defined by
the constitution, and hence the con
clusion was reached that an error
had been committed in overruling
the demurrer.
Srlirofrter, v. Brown & McCubo, Mull
nomnli Count)'.
R. P. Schroeder, respondent, v.
Brown & McCahe, a corporation, ap
pellant. Appeal from the circuit
court for Multnomah county. Hon.
W. N. Gntens. Judge. Argued and
submitted May 24, 1911. R. R. Gilt
ner, (Giltner & Sewell, on brief) for
respondent. E. Farrell (Wilbur
& Snencpr A M IUhl.lo ).iti
as electors, i for appellant. McRrlde, X Affirmed.
This is an action to recover dam
ages for injuries sustained by plain
tiff on March 23, 1909, while In de
fendant's employ.
Plaintiff, a longshoreman, was en
gaged with other co-employees of de
fendant in loading the steamship
Corydon with lumber from the dock,
alongside of which it was moored. A
boom was attached to the mast of
the steamer, and a wire cable, run
ning parallel with the boom, passed
through a block or pulley at the end
of the boom. A detachable sling was
used to place around a certain
amount of- lumber and, when the
lumber was in shape to be moved,
the engineer operating a winch,
hoisted it from the deck. The boom
was steadied or held, while the load
was being lifted, by guy ropes, known
as the inshore and off-shore euv
opes. Plaintiff's duties consisted in
working on the dock, placing lumber
in the sling to be hoisted. He and
a co-laborer, after arranging a load
preparatory to being hoisted, were
steadying it to the edge of the dock
and the strain caused the offshore
guy rope to break. This allowed the
boom to swing toward plaintiff and
the load of lumber which was being
moved along the dock fell against
him. The guy ropes may be reeved
singly or doubly. A part of the
hatchman's duty Is to swing the
boom around to the man on the dock.
It is more difficult and consumes
more time when the guy ropes are
reeved doubly. There is some dis
pute as to whether the line was
reeved from double to single durlne
the progress of the work or immedi
ately before the men commenced
work, at the time of plaintiff's acci
dent. The offshore guy rope was old
and rotten and when reeved singly
was incapable of standing the ordi
nary strain put upon it in the course
of the work.
The evidence tends to show that
Anderson was in immediate charge of
the work with authority to hire and
discharge workmen and that he hired
plaintiff and his co-employee on the
dock the day before the accident.
Plaintiff had Judgment in the court
below and defendant anneals.
McBrlde, J.: The evidence shows
that, plaintiff was at work on the
dock and that the offshore guy rope
nroKe ai a place which must have
been at least 30 feet distant from
where he was at work. When the
boom was swung over the dock, for
the purpose of having attached to it
the load which it was plaintiff's duty
to make up and prepare for hoisting
aboard the vessel, that portion of the
offshore guy rope, which was at
tached to the boom, would necessar
ily be within a few feet of plaintiff,
but not in a position to attract his
atetntion. It was no part of his duty
to inspect this rone as it was not a
thing which he was required to hari-
aie or nave anything to do with in
the course of his work. It was one
of the appliances which it was the
business and duty of the master to
furnish to enable the boom to be
properly handled in the course of
swinging the .lumber from the dock
to the hatch, and it was the duty of
defendant to furnish one that was
reasonably safe for that purpose, and
plaintiff, a laborer on the dock, was
not obliged to make an inspection of
the rigging of the boom to determine
Its soundness. He had a right to re
ly on the assumption that the guy
rope was reasonably safe and ade
quate for the purpose for which it
was used.
There is no evidence that plaintiff
observed or had occasion to observe
the defective condition of the rope
and, therefore, no evidence upon
which an instruction as to contribu
tory negligence on his part could be
predicated. In this view of the case
the instruction of the court as to
contributory negligence becomes
purely academic, but so far as it
went It seems to be the law.
Defendant also assigns as error
the refusal of the court to give' the
following Instructions:
"In instruct you that If the guy
line in question was made single by
Anderson, or any of the employes of
the defendant, and that by reason of
being made single, instead of double,
It could not stand the strain and
broke, and plaintiff was thereby In
jured, that your verdict must be for
the defendant, as the act of Anderson
or any other of defendant's em
ployees in lengthening the rope was
a detail of the work that defendant,
as a matter ot law, could leave to the
servants to carry out."
"I instruct you that so far as this
case is concerned, Anderson was a
fellow servant of plaintiff and de
fendant cannot be held responsible
for any negligence on the part of
Anderson."
Both of these requested instruc
tions assume as a matter of law that
Anderson was a fellow servant with
plaintiff, whereas there is testimony
tending to show that he had charge
of the work to hire and discharge
the hands and was a vice principal,
and for that reason they were prop
erly refused.
The Judgment Is affirmed.
o
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