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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (June 15, 1911)
1.1 ., "KAIKoaDS. oausias rAciric. ...ir : FAGS :. . ' A SAMPLE LINE OF of HANDSOME DRESS SKIRTS 1-2 PRICE These arc" the very latest in style and of the most popular fabrics GREAT VALUES DAILY CAPITAL JOCRXAL. SALEM, PRECOX. TM'RSDAY, JI NK 1.1, inn. The two last named neglected to cause the attempted classification ofision." We do not think however qualify or accept the office and the ports affected by Its previsions Is ar- that this ,Le bears o such a thJ: relators bring tins proceeding to es- bitrary and illusory, and therefore ! orv. or that anv mined a "aw V mid abllsh their right and title to the of-! the act is void, and the relators are be adequate "The CpinVof horSi. o7pnrM1n!"imiSSl0ner3 f the ""tth" commissioners of the Port , in a stable adjoining plaintiffs preni- PAfiZ FfYE !of Portland Defendants demur to the complaint j The demurrer Is sustained, and for the reason that it does not state complaint dismissed. facts sufficient to constitute a cause of action, relying upon the unconsti tutionality of the solid legislative act Templclon t. Williams Pros. Trans, of 1911. I I'cr Co Clarkanuis County. 1 Kakin, C. J.: On June 4. ISrtfi, Sec. i v Cllte Templeton respondent, v. . . i-r . , . E- Williams, A. L. Williams, J. E. 2 of Art. M of the constitution was Williams and David Williams, part amended to read. "Corporations may nor vmii,,a vto Tr,ntfr r DR. M. P. MENDELSOHN f ! ii OREGON SUPREME COURT DECISIONS Full Text Published bj Courtesy of F. A. Turner, Reporter of the Supreme Court State of Oregon, ex rel, v. Swigert, et nl. The State of Oregon, ex rel., C. A. Gray, Robert D. Inman, James Ma- j guire, M. O. Collins and II. M. Ester-1 ly, as commissioners of the Port of Portland, a corporation, plaintiff, v. , C. F. Swigert, C. F. Adams John Drlscoll, Archie Pease, P. L. Willis, John C. Ainsworth and William D. j Wheelwright, defendants. Quo War ranto Proceeding. Argued and suU mltted May 25, 1911. M. G. Munly, H. H. Riddell, Will R. King (and W. A. Munly on brief) for Relators. C. E. S. Wood (Williams, Wood & Linthl cum, on brief) for defendants. W. S. Uren (and Stephen A. Lowell on brief) Amlci Curiae. Eakin, C. J. Demurrer sustained, and complaint dismissed. This Is an action In the nature of quo warranto commenced by an ori ginal proceeaing in mis court unuer i Sec. 2 of Art. VII of the Constitution, as amended November 8, 1910, which provides that "the supreme court may In Its own discretion, take ori ginal Jurisdiction In mandamus, quo warranto and habeas corpus pro ceedings." The relators were ap pointed isy the governor as commis sioners of the Port of Portland and they bring this action for the purpose of removing from office the defend ants, who constitute the board of commissioners appointed by the leg islature on February 26, 1903, or sub sequent thereto to fill vacancies In the commission. The Port of Portland was first created by an act of the legislative assembly on February 18, 1891, as a municipal corporation. By Sec. 9 of the act (Laws 1891794) the power and authority given to the corpora tion la vested In 15 commissioners named therein, and their successors in office to be chosen as provided In the act. Section 12 provides that If an appointed commissioner neglects to qualify or removes from the cor poration limits his place shall be deemed vacant, and all vancanles so occurring, or occurring from death, resignation or other cause, shall be filled by the remaining members of the board. On February 18, 1899, the legtsla- tive assembly amended Sec. 9 of the act (Laws 1899, 150) by appointing nine commissioners i to constitute the board, their successors to be chosen as hereinbefore provided. March 1, 1901, the charter was re-enacted and bv Sec. 25 (Laws 1901. 4.10) seven commissioners were appointed to constitute the board to serve until their successors In office are clrosen as hereinafter provided, and by Sec. 28 If a commissioner refuses to qual ify, or removes from the corporate limits, Ills office shall be deemed va cant, and that all vacancies arising in the commission from any cause shall be filled by the remaining mem bers of the commission by election, until the next session of the legisla ture when the vacancies so created shall be filled by election by the leg llslatlve assembly. By the act of the legislative assem bly of February 26, 1903, Sec. 25 of the charter was again amended (Law 1903, 340) appointing Swigert, Drlscoll. Adams, Pease, Spencer, Wil lis and Thomas, as the board of com missioners but making no change In the duration of the term of office or the manner of choosing their suc cessors in office. At the session of 1905 Ainsworth was elected to fill the vacancy caused by the resignation or absence of Spencer. At the 1907 session Wheelwright was elected to fill the vacancy caused by the ab sence of Swigert from the port, and Swigert was elected to fill the va cancy caused by the resignation of Thomas. On February 2, 1911, the legislative assembly passed an act providing for the appointment of commissioners for the government of ports having a population of more than 100,000. The first clause of Sec. 1 of which is in volved here, viz.: "Every municipal corporation of the class designated and known as 'Ports' which contains within Its boundaries a population of more than 100.000, as shown by the last federal census, shall be governed by a board of seven commissioners." The act provides that the commis sioners shall be appointed by the governor for a term of four years in the manner therein provided. Pur suant to the provision of the act, the governor appointed the relators, to gether with S. M. Means and Joseph Goodman as such commissioners. CJ "Supper Ready", When vou get back to camp, tired and hungry, you j ,ant in sDend the can wan ujj. m - m p , For camp, houseboat or bungalow, a New fee- is ready for use in a moment, n overheat of shcsnnorTmoke. or make dirt in a kitchen ther are no , h . Itrequireslessattenuonanu ( Oil Cook-Stove Standard Oil Company Ipcorpo""" ' be formed under general laws, but shall not be created by the legislative assembly by special laws. The legis lative assembly shall not enact, amend, or repeal any charter or act of incorporation for any municipal ity, city, or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution nnd criminal laws of the state of Oregon." Prior to this amendment It was In the power of the legislature, by special act, to amend the charter of the port as It saw fit, as to the number of commis sioners, their term of office, and the time and manner of their election, but such changes could have been accomplished only by legislative act. The legislature could not have ap pointed commissioners at a Joint session of the two houses except to fill vacancies, which authity It still has as it is the appointing pow er named in the charter. If an act has been passed by the legislature, fixing the duration of the term of office and appointing new commis sioners, or authorizing the governor to appoint them. Its effect would have been to amend or repeal the former provisions of the charter In those particulars, as fully as Sec. 9 of the charter of 1891 was amended by the act of 1S99, or that amendment again amended in Sees. 25 and 28 in the charter of 1901. and again in 1903. But by the amendment of Sec. 2, Art. XI of the constitution, the power to amend or repeal the charter was tak en from the legislature. The plain tiff's seek to avoid the effect of that amendment, contending that the act of 1911, referred to, is a general law and, therefore, not within the inhibi tion of the constitutional amend ment; that the clause of Sec. 1 there of, above quoted, included all ports which contain a population of over 100.000 as shown by the last federal census, makes It general as to all ports that are now are hereafter may come within that classification. On the other hand defendants urge, (1) that such a classification confines Its application, and was Intended to an ply, to the Port of Portland, and (2) that the classification attempted threby Is arbitrary and not based on real distinction, and therefore is special, and with this latter view we agree. The provision of the act that "every municipal nort which con tains within Its boundaries a ponula tlon of more than 100.000. as shown bv the last federal census," refers to the last census before the enactment. It means a present condition as fly ing the class that may come within the law wid cannot be construed to j include norts thereafter created or j that may subsenuentlv acquire that i population. It Includes only such ! ports as at that time had the neces- sary population of which there was I but one the Port of Portland. This question was well considered in Lndd v. Holmes, 40 Or. 167, 173 in j which Mr. Justice Wolverton savs: i"A statute, however, which Is plainly 'intended to affect a particular person I or thine, or to become oneratlve in a j particular nlace or locality and looks , to no broader or enlareed nnnllca tion. may be antly characterized as ' sneclal nnd local and falls within the : inhibition . It may be stat ! eri n a positive rule of general ao- plication that all acts or parts of :acts attempting to create a classlflcn ' t'on of cities bv population which jare confined In their operation to a I state of facts existing at the date of ; their adoption or any particular time, 'or which bv any device or subter ' fuge exclude other cities from ever I coming within their purview, or based upon any classification which in relation to the subject concerned is purely illusory, or founded upon unreasonable distinctions," iare special and local. The opinion states the rule very clearly and we beUeve correctly. Counsel for plain tiff suggest that, so far as the opinion hnhls ttmt the reference therein to the last federal census in the pres ent tmse would mean unmistakly the census of 1900. Is clearly dictum, but we do not so consider It. The question In that case was whether the classification "as shown by the ! last state or federal census" was comprehensive enough to make It a general law. and the opinion first as certains the rule for the purpose of 'annlvlne It to the facts in the case I before it. But If considered as only ! dictum yet we find that It Is a cor ' rect statement of the law and is fully supported by the argument of the opinion and authorities cited, and is idirectlv applicable in this case. The ; classification of the statute here con sidered confines its operation to a state of facts existing at the date of i its adoption and excludes all other ports from ever coming wunin us purview and is, therefore, special. Furthermore, me cmoBm.-ai.iuu must be upon some real and actual distinction as a Justification for It. We conceive that no distinction ex ists for a different rule In ports of lrtO.000 population than for those with a lesser population as to the limitation of the term of office or time or manner of election. No rea son Is named In the act. nor Is anv suggested by counsel. If none ex ists then the classification Is Illusory and without existence In fact and the law Is special. There must be a dif ference In the situation, circum stances and requirements of the ports as the ground for the classifi cation and not special legislation un der that guise: Richards v. Wlllard, 1-rc Pa St. 213: Blnnkenbure v. Black, 50 Atl. (Pa.) 198. And we conclude that the classification Is an orhitmrv one and that the law In trt t.lle only to the Port or Port land and exempts from Its provisions ii nther norts, The act here challenged Is an at or,,r, in nmend Sees. 25 and 28 of tho charter of the Port of Portland hv fhanirine the duration of the term of office of the commissioners on,i th appointing power, and the time and manner of their election in violation of Sec. ? Art. XI of the con stitution. It is also objectionable be- ises, and the noise resulting there- rrom. with the fact of moisture and dampness. afford sufficient ground for r.iief by injunction." liign. injunctions. See. 7S0. Since suit having been issued, the barn in ques- j tion lias been used in the manner In ! which, as we understand, defendants Intend to use it in the future. While they have made a strenuous endeav or to so construct the stable as to effluvia arising Mine the commencement of thlst t, no temporary restraining order i X appellants. Appeal from the circuit .court of Clackamas county. The Hon. Thomas , A McBrlde, Judge. Argued and sub-; therefrom, and minimize th nnls I niltted June 6, 1911. Joseph E. the horse would naturallv make; Hedges, attorney for re spondent, j connected the same with the sewer Walter A. Dlnilck. (Dlniick & Dimlck and freelv used the broom, vet doors on the brief). Bean, J. Affirmed. : are made to be opened, and the doors This Is a suit to enjoin the use of . and windows of the barn have neces a barn in Oregon City, Clackamas , sarliy been 0))Pn part of the tlme county, Oregon, aa a nuisance. From with the results as Indicated. From r i i ii 1 l --'7 t 1 ... KRyETOK: Sioi a decree In favor of plaintiff defen dants appeal. Plaintiff is the owner of lots 3 and 4, block 62, In said city, upon which are two dwelling houses, while de fendants are the owners of lots 5 and 6 of said block, upon which, within about 15 feet of one of plain tiff's dwellings and about 60 feet from the farther house, there has lately been constructed a barn 40 by 80 feet In dimensions, in which are the photographs In evidence the barn Is not unsightly, apparently be ing a useful, substantial building, and In some parts of the city would not be objectionable. But, because In olden times both man and beast were housed under the same roof, it no reason why at the present time a stable should be used In the resi dence district of a city, where It be comes a nuisance to adjacent houses. Old things have passed away to a stained some 10 norses. ueienoanis certain extent, nnrl nmnv chnmrpa being in the drayage business. There have talten pia(,p ln thp customg 8n(1 was tor several years upon me 101a nlanners of civilized life. Plaintiff's of defendants an old barn, which testimony Is corroborated to quite an was torn down, and in its place the,extent bv tlat of one of tne nef,,n. new barn erected. dants. who testifies that, "I looked t'laintin alleges tnai miring a large j for thenl to declare the old barn a portion of the year, when the pre vailing wind is from the southwest, the stench and obnoxious odors from the stable are carried Into thedwellr Ings, causing the plaintiff and hef tenants great discomfort; that causes an accumulation of files and vermin and the fostering of rodents In and about thS houses, and renders her property both less useful and less valuable. Defendants deny the material alle gations of the complaint, alleging that the old barn had been there for nuisance. According to the evidence, we con clude that the use of the barn Is a nuisance, and that the plaintiff Isen- , - 1 1 I - , i I'uru iu inn r me rujoiueu I frnpi finph fnrtlior non Tf la nn, plained, upon the part of defendants, that the findings of the lower court are to the effect that the barn Itself should be abated as a nuisance. We do not so understand the findings of fact or conclusions of law, but If the dcree of the lower court is susceptl- mac me oiu uara ,.Bu m. u. of guch oonatnl(,ton we tnnk 20 years, of which, fac ..aintiff was ,t ghouM aware when her dwellings were , e(.nri.. n erected; that the barn Is connected with the city sewer system, and that It Is kept in a cleanly manner. Bean. J. Except ln degree there Is but little difference in the testimony on the part of plaintiff from that of defendants. The testimony shows plainly that the barn is constructed of wood, and located hi a residence nortion of the city; that about 16 horses are kept therein, and that the noise made by them often disturb the slumbers of the . occupants of the nearer dwelling; that when the wind blows from the direction of the sta ble, obnoxious odors emanate there from and blow into the house, ln or der to keep out which the occupants are at times compelled to close their doors and windows; that it causes an accumulation of house and green files In and about the dwellings, nnd that while the stable Is structlon, so as to declare the ores ent use of the barn a nuisance, and that the defendants be required "to abate the same, but that they be per mitted to use the building, as now located, for other purposes. It follows that the decree of the lower court Is affirmed. STATF. NEWS. No trace has yet been found of the murderer of the Hill family. Re wards aggregating $2750 are now of fered for his apprehonslon. McMlnnville Is organizing a tax payers' association, for the purpose connected i of protecting the taxpayers - W1TH0UJ ITU EC 3NTHE1ENS DOCTOR OF OPTICS LOCATED AT 210-11 UXITED STATES NATIONAL BVK BIILD1G. WONE MUX 110 AXD MAKE YOUR APPOIMIIEXT I in.uiAiiitiis UU UESUUE KRVl'TOK LEXSES. TRUE WORK CALLS FOR EXPERIENCE, SKILL, EQUIPMENT, FACILITIES, RESOURCES, AND IIICII MORAL, BUSINESS AXD PROFES SIONAL PUItrOSE. OUR NEARLY 80 YEARS OK PRACTICAL EXPERIENCE, THE COMPLETENESS OF OUR EQUIPMENT. Til R I J IMMENSE STOCK WE CARRY, THE SATISFACTION WE G1YE " 1 YOU, OUR GUARANTEE THAT WE HAVE ALL THESE QUALI- " 4 FIXATIONS. THE ENTIRE PROBLEM LIES IX THESE WORDS I RIGHTLY FITTED LEXSES HV THE ltTftiiT miv YOUR CASE WILL XOT PUZZLE DR. MENDELSOHN. OFFICE HOURS FROM 8:30 TO 12:00, AND FROM 1:00 TO 5:00. BY SPECIAL APPOINTMENTS IN THE EVENING. Middle Aged and Eldcrljr People Use Foley Kidney pills for quick and permanent results In all cases of kidney -and bladder troubles, and for painful and annoying lrregularl. ties. They contain Just the Ingredi ents necessary to reeulatn and "It cured me," or "it saved the life of my child," are the expres sions you hear every day about Chamberlains Colic, Cholera and Diarrhoea Remedy. This la true the world over whre this valuable rem edy has been Introduced. No other medicine ln use for diarrhoea or strenethen th nrHnn nf h b i bowel complaints has received such - . . u ' I ffBftioml nnnmvnl Tho aevrat rt (ha success of Chamberlain's Colic. nd bladder. They are tonic In ac tion, quick In results. Try them. Red Cross Pharmacy. Cholera and that It cures. Diarrhoea Remedy is Sold by all dealers' with the cltv sewer svstem. and kept I a man supposed to be insane has as clean as it well can be when used, terrified the suburbs of Oregon City nevertheless It causes the annoy- tor two clays, dui so rar nas managed ances and discomforts mentioned bv I to elude the officers and others look- plaintiff in her complaint, and which ; mg ror mm. are shown by the testimony: that It i A Lane county hop growers Is put creates an unsanitary condition for a j ting crude oil on the roads, to pro residence locality, and deteriorates , tect h's'crop from dust, and he says the value of plaintiff s property. 'I ne "it pays." 1 1 occupants of the nearer house, being A humming bird at Pendleton has caused the greater amount oi nis- ; its np8t on a telephone wire. Her comfort, tends to show that In this ; nanes should be sad gossips. Instance "distance lends enchant- Two Pllot Rock mon pieftded gull-! ment." or at least diminishes the ob- tv Tuesday to nutting sawdust in a' noxious odor. In fact the strong Btream. and paid J50 each for so do-' tlMlimnin,tnnnt)ittttnTi ii Content is a Mixture i Sometimes a small part satisfaction and a large part resignation, So, if you're content with ' made-for-anybody read-made attire per haps that content s made up more of resigna tion than satisfaction, You think you can't get truly high grade, made-to-measure cloth- ins for your' price, You'd better not become RESIGNED to your fate until you see what we can do for you at from $10 to $30 Take a peek at our light Sum mer Underwear and note the prices, point of the defense seems to be that the wind sometimes blows other than toward plaintiff's dwellings, and while defendants do not seem to no tice the annoyance as much as plain tiff and her tenants, yet one of them testifies that he had noticed the stench from the small barn of anoth er neighbor, when a horse and cow were kept therein. It Is shown that the odor from the old barn was at times "pretty rank." The testimony on the part of defendants appears to be merely in the line or minimizing i the noise and offensive odors. i f First, we will state briefly the rule i t of law, which we think should gov- ; I em a case of this kind: A man should so use his own property as J not to Injure another, or the prqp-; i erty of another. Fish v. Dodge, 47 i Am. Dec, 254. A stable or barn Is not a nuisance per se, but may be come one from the manner In which it is constructed or maintained, or by reason of Its Improper location be ing necessarily Injurious to a neigh bor. 29 Cyc. 11S1 ; Shiras v. ding er, 50 la., 571. Where the odors from a stable on adjoining premises are so offensive as to render the oc cupany of the property by tenants materially uncomfortable and disa greeable, an owner, Injured in his property rights, is entitled to an in junction. In cases, however, where the nuisance consists of the manner In which the stable or barn Is kept, an Injunction should be granted to prevent continuance of the causes constituting the nuisance. In such a case there Is not an unreasonable in terference with the defendants' rights. A person about to erect a livery stable with a plank floor upon his own land, on a public utreet in a city, near a hotel owned by another, where Its location would cause Irre vocable Injury to the hotel owner, resulting, ln consequence of the un healthy effluvia arising therefrom, the collection and swarming of tiles, and the stamping of horses therein, In the loss of health and comfort to i such family, and ln the loss of pa- j tronage to his hotel, the erection of U.A nlnl.ln lirlllll AnQfOtd QD 3 fill,- I sance to the adjoining owner, and he would be entitled to an Injunction, restraining Its erection. Joyce, Law of Nuisances, Bees. 204, 205; Catllnv. Valentine, 38 Am. Dec, 567; Ash- brook v. Commonwealth, tf Am. Dec, 616; Dargan v. Waddlll, 49 Am. Dec, 421. If plaintiff's property Is reduced In value through the use of this barn, It is urged by defendants counsel that her remedy Is In an action for damages, In support of which Blagen v. Smith. 34 Or.. 394. IS cited, wnere Mr. Justice Moore, at marks: "A private ever, may 111 nunn: uinuiu. urtiF...v, . bo intolerable to a party whose prop- j I ertv. or the enjoyment thereof, Is af- r for.torl thprphv. that Its disci ance becomes an Imperious necessity, In which case equity only can anora the immediate relief demanded, be cause the slow process of the law c&urts Is not adequate to the occa- lug. Inland Empire crop reports are optimistic. Children Cry . FOR FLETCHER'S CASTOR! A G. W. Johnson &Co. 141 N. Commercial Street. Phone 47 Salem's Cherry Fair July 6th, 7th and 8th : ! , 4 ' 4 4 4 'X 4 4 4 ' 4 See KINGW00D PARK at page 403, re- I nuisance, how- f nstances become , I See it today in ad its beauty. See the new homes being built. See the vast amount of street work now going on. See the wide cement walks and cement curbs going in. See the beautiful street trees that have been planted. See the magnificent scenery. See the water mains being installed. See the light wires being strung. See the future there is for this property. See it today at our expense and to your profit. PHONE MAIN 452 and let us send an auto to your door to take you over if only to see what we have betn doing. We want you to know what is going on at KINGWOOD PARK The Addition with Character. Capitol Trust Co. I Bechtel & Bynon Sales Agents Owners 347 State St Tel 452 44.4444444444444444444444444444444444444444444444444444444-444444444 10 Is es re )U th to Ed r- 1s y. he -in, P- or be e cl Bd 11- .te an ill e- )U ' , er lr In, m ir ic4 rly on ice . 3lX Ity en ith he irt .: 3et rly to on sr; nk 'ice :ted )by ro- aid Tor .. rly ps fo BS t ,1 ua . of llt ' ent ne, l9 ie'p mt b 'est ver He ney th. ,1 ;4. X 4 4 : 4