OREGON SUPREME Supreme Burton t. The Recorder's Coort of Yale, Ore, e al, Malheur County Decided December 5, 1911. T. A. Barton, appellant, v. The Re corder's Court of Vale, Oregon Z G Wilson, Recorder and J. j Doian Marshal, of the said city, respond ent. Appeal from the circuit court for Malheur county. The Hon Dal ton Biggs, Judge. Argued and sub mitted Nov. 2. 1911, at Pendleton Geo. V. Hayes and (Brooke & Torri linsoa. on brief) for appellant R M. Duncan (McCulloch, Soliss & Dun can on brief) for respondent. Eakin C. J. Affirmed. ' Eakin, C. J. This Is an anneal fm a judgment of the circuit court in a proceeding to review a judgment of the recorder's court of the city of Vale, Ore., wherein plaintiff was found guilty of selling intoxicating liquors within the city, without hav ing obtained a license therefor. I It appears that prior to the general election of 1910 the sale of Intoxicat ing liquors was prohibited within the city of Vale and the result of that election was against prohibition; that, the city being without an ordi nance governing the subject of the sale of intoxicating liquors, the com mon council on December 15, 1910, for the purpose of perfecting some plan by which the council could dis pose of licenses for the Bale of, and tne iramc in, intoxicating liquors, adopted a resolution that the council proceed at once to receive open com petitive bids for liquor lionises for the ensuing two years and award a license to the best bidder, reserving the right to reject any and all bids. Thereupon there was Introduced by Councilman H. H. High an ordinance covering "the liquor question" which was read before the council. The council then adjourned until 7:30 o'clock p. m. of the same day, at which time the mayor announced that the council was ready to receive bids, and Mr. Thomas bid J3.000, which bid was accepted. Thereupon the rules were suspended and the or dinance above referred to was passed. The ordinance fixed $5,000 per an num as the price for liquor license in the city of Vale. The foregoing Is all that is dis closed in the record as to the ordi nance or its terms. It was not ap proved by the mayor nor vetoed until at least after the 19th, of December, 1910. As disclosed by the record the council on December 19, 1910, met, pursuant to the call of H. H. High,1 president of the council, who was acting as mayor, Mayor Clark being absent from the city, and stated that the object of the meetine was to con sider, pass or reject an ordinance regulating the sale of intoxicating li quors and to grant a license for the sale of the same in the north pre- clnct of the city of Vale. After the ordinance was read before the coun cil, which had been submitted to it at a previous meeting by Councilman H. P. Osborne, some changes and amendments were made, and It was passed and approved by the acting mayor. A copy of the ordinance ap pears in the record, and is referred to therein as ordinance No. 68. On December 27, 1910, Mayor Clark filed with the recorder a message to the council, vetoing ordinance No. 68, referring to the one passed December 15, 1910. Section 1 of ordinance No. 68,' be ing the one passed on Dec. 19th, pro vides: "That no person, firm or cor poration, shall within the corporate limits of the city of Vale, directly or Indirectly, in person or by another, sell, barter, exchange, deliver, or give away, with the purpose of evading this ordinance any spirituous, malt or vinous liquors, without first obtaining a license therefor, as here inbefore provided in this ordinance," and proceeds to provide for ths issu ing of licenses under certain circum stances and conditions; how a sa loon shall be conducted and requir ing a bond for the faithful perform ance jf the terms of the ordinance, and provides penalties for violation of any' of the provisions of the ordi nance; and that the license shall be issued for the term of two years. The assignments of error involve four questions. First it is contended that the ordinance Is void because it contains a clause declaring an emer gency and providing that the ordi nance shall be In force from and after It is approved by the mayor. "Whether an emergency clause In a statute Is valid or not affects only the time It shall go Into operation, and If invalid does not render the statute void. This is the effect of the hold ing In Sears v. Multnomah county, 49 Or. , 42, and the defendant's viola tion of the ordinance occurred long Haste! is Not waste when you telegraph. Western Union "Day Letters" and "Night Letters" save waste. Telephone the West em Union any time. WESTERN UNION THE COURT DECISIONS Crt after it would have taken effect with out an emergency clause Thert fore . that objection 13 without meriT tJ rnd 1uesoaI8, whether he ordinance creates a monopoly of the liquor traffic In Vale, and is there- Hn , w ralSe "t QUPS tion. There is no controversy here as to his rleht tn u... v,. charged with th,lolaUou of 'ther !th, selling liquor within the ciiy without & hn i- .. only question the validity of that pro- rpu TJ, T wunuyi a license. ine third Question i wi.an. ordinance as a whole is void, because vtafate,8.!! """"Pol that pro vision of the ordinance Is void it does not thereby render void the 'in dependent portions thereof that are not void in themselves. In State v. Wiley, 4 Or. 184. 187, Mr. Justice McArthur quotes with ap proval from Mr. Sedgwicy as follows: The principle that a statute is void, only so far as Its provisions are re pugnant to the constitution, that one provision may thus be void and this not affect other provisions of the statute, has been frequently decided " And quoting from Fisher v. McGirr (1 Gray 22) he says: "That -where a statute has been passed by the legis lature under all the forms and sanc tions requisite to the making of laws, some part of which is not within the competency of the legislative power, or is repugnant to any provision of the constitution, such part thereof wm De adjudged void and of no avail, whilst all other parts of the act not obnoxious to the same objec tion, will be held valid and have the force of law." Mr. Justice Burnett, In Flelschner v. Chadwlck, 5 Or. 152, quotes with approval from Commonwealth v. Hltchlngs, 6 Gray's Mass. Rep. 485: "That where part of a statute Is un constitutional, that will not authorize the court to declare the remainder of the statute void, unless all the provi sionsare connected in subject mat ter, depending on each other, operat ing together for the same purpose, or otherwise so connected In meaning, that it cannot be presumed that the legislature would have passed one without the other." Sec. 1 of. the ordinance forbids the sale or barter of Intoxicating liquors without first having obtained the li cense therefor and section 9 provides for the punishment of every person who violates the provisions of Sec. 1. These sections are valid and enforcl ble, Independently of whether the provisions, placing the liquor busi ness in the hands of one person, are valid, and which we deem is unnec essary to decide here. As to the fourth objection, that the ordinance is Invalid by reason of the veto of Mayor Clark, it appears that Mayor Clarke was out of the city on December 19. How long he had been away or remained away does not ap pear. It does not appear that the president of the council was properly acting as mayor when ordinance No. 68 was passed- and approved by him. By Sec. 36 of the charter (Laws 1905, 133) the president of the coun cil in the absence of the mayor has the power to perform all the duties of the mayor. Therefore, In approv ing ordinance No. 68 he was acting within that power. Mayor Clark did not attempt to veto the ordinance passed December 19th. The affidavit of the city recorder states that the message of the mayor vetoed the or dinance passed by the council on the 15th day of December, 1910, and it is not contended by either plaintiff or defendant that that ordinance ever became a law and therefor it has no bearing upon the Issue here. So far as the record discloses the ordinanc passed December 19th was regularly passed, and was approved by the act ing mayor and became a law 30 days after its Approval, viz; January 19, 1911. We find no error in the ruling of the circuit court and the judgment Is affirmed. Fnrdv v. Tnnliwen, Grant County. Decided December 5, 1911. Jesse T. Purdy, respondent, v. Jud son H. Vankeuren, appellant. Appeal frnm fSmnt eountv. The Hon. Geo. E. Davis. Judce. Submitted on brief November 2, 1911. Cattanach & Wood, for respondent. Hicks & Marks, for appellant. McBride, J. Affirmed. Thlsi Is an action to recover for la bor and services. The complaint al In onhatnnre that on or about January 14, 1907, plaintiff performed labor and services for defendant in Grant county, Oregon, and that de- TELEGRAPH COMPANY fc rv . MILT CAPITAL Ladv.Baltimare Quia Tk Most Fopol., Caks Thla S.uoi WafAV"-"'7'. Htor of M Boston Cooking Sckool Magazine This L Mlffl rMskM4 V . 1 . . ""m'-j uy many coouni? authorities the finest cake that can be dSl1ngh reaUty ft U not I C Bajtiasoc Cak One CUt butter- J r,.A, l.l-J sugar; 1 cup milk; Uaspoonful rose t , I. J?X F jwur; j level teaspoon. 'fifi beaten dy. Cream tie butter and beat In the rorar gradually. Sift together, three time, the flour and baking powder, and add to the butter and sugar, alternately with the milk and rose water, tastly, add the egg whites. Bake in three-la ver cake pans. Put the layers together with the following frosting. Women', bxchange. for jjjo. 32 F roftlB for Udy Baltimore Calu tufchotKi Hui-meaU; St cut i thin tliui. Stir the sugar and water until the wgar is dissolved, then let boil without stirring until the syrup from a spoon will spin a long thread; pour upon the whites of the eggs, beaten dry, beating constantly meanwhile. Continue the beatinsr Until the frnatincr rsr.1,1. .,1,1 the fruit and spread upon the cake. C Cook's Book contain, ninety Just na pastry. You can accure a copyrw by scud- of KC Bakmr Powder to the Jaouks Mro.Co.. rhlrniTA Small A... A .... n. Book certificates. $200, and has not paid the same nor any part thereof, and concludes with a prayer for judgment for ,200 with Interest at six per cent from. January The answer denies each and every material allegation of the complaint, except as alleged in the further and separate answer which states, that in 1906 and 1907, plaintiff, defendant and Jay A. Higbee were residents of Idaho; that plaintiff was eniraeed in business as a timber locater in Grant county, Oregon, and elsewhere; that in July, 1906, plaintiff agreed with defendant and Higbee that, in con sideration of their sending to him The Doctor's Answers On Health and Beauty Questions By Dr. Theodore Beck The questions inawered belo ire feneral to character) the symptoms or diseases are flrea and answers will apply to any case of similar nature ThoM wishing further advice, free, mi raddreu Dr. Tbeo. Beck, CoUejre Bid., Cellene-Elwood Bts, Dayton, Ohio, en closing self-addressed envelope for reply. No questions will be answered unless full nam and address la alien. Initials or nom de plume will b used Id aniwera. ' Tne preacrlp tlona can bt Oiled at any well stocked drag itore. Any druggist can order of wholesaler. fox u Adam E.: Your symptoms plainly indicate catarrhal trouble. Begin ning with nasal catarrh the disease has affected your stomach, causing foul breath and Indigestion, gas, etc., while the kidneys and bladder are In bad condition, causing minting, pain ful, freauent and uncontrollable urin ation with dull headache and back ache. For nasal catarrn, oDtain i ozs. antiseptic vllane powder. Put a half teaspoonful in a pint of warm water, snun tne water irom me naim nf rha hand thrnnfirh the nos trils two or three times daily. Then use a level teaspoonrut or me pow nt vnitellna. mix and apply a small portion into each nos tril. Also taKe a leaspoomui lour times dally of the following: Syrup sarsaparllla compound 4 ozs., comp. fluid balmwort 1 oz., and fluid extract buchu 1 oz. Mix and shake well. Wolr. Vnn nn InrrpnSA votir weight and strength and Improve the general health greatly by a tnorougn course of treatment with three-grain hypo-nuclane tablets. Take one af ter each meal and one at bedtime, n-inir niontv nt wntfr rIowIv. be tween meals. You should not expect a great increase in weigut qmuwj. hop It takes time to change the cells and tissues of the body, but you can depend on it as a inorougiuy effective flesh producer. Susan: Write me more fully or send for my free examination chart, and I will gladly do my best for you: always give full name and address. I never publish the correct name. R. M.: Do not delay using the fol lowing treatment If you value good health. You need a good, mild laxa tive tonic and blood purifier to cor--rtnf y,rnnn rnnnlfnfttinn and the general debility of which you com plain. The weakness, aunian, iu of appetite, headache, neuralgia and faint spells can be corrected by us ing three-grain sulpherb tablets (laxative), as per directions accom ..,in(r nrt bIhd the following: compound syrup hypophosphites 6 ozs., tincture caaoniene cumijuuuu 1 oz., and compound fluid balmwort 1 n aii. shake well and take a tea- spoonful before meals and at bed time. Thla la a valuable tonic, and will vitalize the nerves, Increase the strength, calm the mind, Improve the .mam v nf the blood and remove the exhaustion of body and mind. Bronchitis: A cougn or any kiuu should be promptly treated. Asthma tic patients have obtained wonderful relief by the use of a splendid and cheap home-made cough syrup pos sessing laxative properties, in fact, this makes one or tne tesi nousenoia remedies for colds, coughs and asth ma that I know of: Obtain a oz. parka ge of essence of mentho-laxene and make into a pint of syrup as per directions accompanying the package. X. y. Z. Your questions and symp toms have been answered and ex plained several times heretofore In these columns, but as they may have escaped your attention I will repeat my advice, ss I have for many oth v Hmsirlsf rnuld obtain anr- ' thing I have prescribed In tbese ad- JOCRXAL, SALKM, ORMOH.. persons who desired to enter Umbr lands in Grsuit county, he -would pay to them $100 for each person to sent to him and by him located; that de fendant and Higbee sent five persons to him, all of whom plaintiff located on timber lands in Grant county, pri or to January 14, 1907; and that plaintiff thereby became indebted to defendant and Higbee In the1 sum of $500, or $250 each; that on or about January 14, 1907, plaintiff located the defendant on a timber claim in Grant county, Oregon and his - labor and services In doing so are those men tioned in the complaint and were rendered and performed by plaintiff for defendant In full payment for the services performed by defendant for plaintiff in procuring the Ave persons to enter and locate timber lands, as above set forth; that plaintiff then and there accepted the services and labor of defendant for his services; that defendant accpted the services of plaintiff for defendant's services. The reply denied the accord and satisfaction pleaded in the answer; admitted that plaintiff located defen dant on atlmber claim In Grant coun ty, as alleged, and admitted that his services In so locating plaintiff were the labor and services referred to In the complaint. A jury trial was had and there was a verdict and judgment for plaintiff. Defendant appeals. McBride, J. The validity of defen dant's objections to the ruling of the court excluding certain portions, of his evidence hinges upon a single proposition. Could he, after pleading an accord and satisfaction, as Is done here, introduce evidence tending to show that plaintiff's services were rendered gratuitously, It will be seen that defendant does not posi tively deny any specific allegation of the complaint He denies only such as he d em a material and these only In so far as they are not referred to In the answer. In other words he says, "The contract was not as plain tiff states It. but aa I state It" Con ceding that defendant had the right to plead the general Ibsuo and also an accordand satisfaction of the claim, he could only do this by an absolute denial of the contract, cou pled with a plea of accord and satis faction of the plaintiff's demand. The pleading In the case at bar falls short of thla. The defendant could not in any event under a gen- leral denial Introduce evidence that plaintiffs services were rendered gratuitously. The law presumes that services performed by one at the re quest of another are performed for hire and implies a promise to pay , vices from the wholesale firms. In I slat on his doing so, or go to a large, 'up-to-date store and get it. (Z.) The treatment for Itching scalp, falling hair and dandruff which you refer to Is called plain yellow mlnyol, packed In 4-ounce Jara, di rections accompanying This cures dandruff, makes the hair glossy, fluf fy and free from excessive olllness, and I have been thanked by scores for discovering and proclaiming Its worth. A Wife: (1) Write to r my exami nation chart (free) and arlve name and address. (2) Lucorrhea or "whites" Bhould be treated as fol lows: Obtain one ounce tannic acid and two ounces vllane powder. To a quart of water add a half teaspoonful of tannic acid and . a teaspoonful of vllane. Use twice dally as an in Jectlon with syringe. Continue for a month after cure Is established to prevent a return. I received In to day's mall three letters from women who used the above and now report they are cured. Help: The larger drug stores can supply you with this excellent speci fic treatment for the stomach disor ders, common to so many, such as pain under the ribs, belching, bloat ing, wind, gas, heart .palpitation shortness or breatn, etc. Obtain a package of trlopepttne tablets and use pink after breakfast, white after dinner and blue after supper. Trlo pepttne will correct most any atom ach disorder, help digest the food, tone up the stomach, Increase the gas trie juices and enable you to eat whatever you like. Stubborn: For ulcers, running sores, pimples, sore eyelids and oth er symptoms of scrofula use the fol lowing: Syrup Trlfollum compound 4 ozs., compound fluid fialmwort 1 oz. aromatic fluid rascara 1 oz. Mix. Shake well and take a teaspoonful after meals and one at retiring. The dose after the first week may be In creased gradually to two teaspoon fuls. This Is effectual In chronic or Inherited blood disorders. Thla treat ment should continue 4 to 6 months, and sometimes longer, to thoroughly eradicate the disease. Aged: You say you are 45 years old and your symptoms are extreme nervousness, weak, tired, worn-out feeling, timid, irltable, no enerny or ambition to act naturlly under all circumstances as others do. The leant exertion tires, and the limbs and body are often numb or aching. R"g ular dally calisthenics or txerelne which calls Into play every muscle of the body should be followed. Also take the following: Tlnture cado mene comp, 1 oz., comp. essence car dlol 1 oz eyrup l-ypophosphltea 6 ozs. Mix and take a teaspoonful be fore or after each meal; after the drift week gradually Increase the dose to two teanpoonfuls. .. Continue two or three months. A, M.: A pleasant and effectual non-secret remedy for chronic consti pation Is called Cascaroyal pills. Miss R.: A very prompt and effi cient, though harmless headache and neuralgia remedy Is sold under the name of Pain-Away pills. MOSDA.T. DECEMBER 11, 191 , for tb.m: Lavrson on Contracts. Sec. 41 To overcome- thla promimptlon, and to fairly apprise plaintiff of tne de fense he intended to Interpose, de fendant should have plead especially that the aervices were performed gratuitously. The brief of defendant contains a discussion of the evidence submitted, and it must b confessed that the evidence Is exceedingly con tradictory and unsatisfactory ; but there was evidence, suttlclent to sub mit to a Jury, which sustained plain tiff's theory and the Jury having found in his favor we are prohibited by Sec 3 Art VII of the constitution, as amended November 8, 1910. from disturbing their verdict. The Judgment of the lower court Is affirmed. 0 COMMENDS MR. PAUL SCHVABE . AS EDUCATOR Following letter will be of interest to persons who ire Interested In the study of modern languages and mu sic. The gentlemen referred to has come to our city to make his 'home, and Is. worthy of the good Hung said about bim: Hoard of Education, Salem, Ore., Nov. 21, 1911. To w h om It m a y concer n : This will certify that I am ac quainted with tho qualifications, the methods and the skill of Mr. Paul Schwabe as a teacher of modern lan guages. Mr, Schwabe is but recently from his native country (Oormany). He is. a gentleman of gracious man ners, of thorough scholarship, tand of unusual energy and Industry. If I can find the time I shall tmrol.llnone of his conversational classes In Ger man, It seems to ma that any one who is desirous of gaining a working vocabulary la German or French, and the ability to use the same inor dinary conversation, would be fortu nate to come under the tutorage of Mr. Schwabe. Mr. Schwabe la also a plant-st and a piano teacher, with the knowledge, skill and the enthusiasm which are bound to win him success at a teach er of this subject I take great pleasure In commend Ing Mr. Schwabs to tho general pub lie as a man Worthy In every re spect of its esteem, and desorvlng of patronage. Very reepectfuly, JAMES M. POWERS, Superintendent. ' Teachers' Einmlnntlons. Notice Is hereby Riven that the county superintendent of Marlon county will hold the regular examin ation for applicants for state and county papers at the First M. E. church, Salem. Oregon, as follows: For StaU Papers. Commencing Wednesday, December 20th, at I o'clock a. m.. and continu ing until Saturday, December 23, at 4 p. m. Wednesday forenoon Writing, U. 8. History, Physiology. Wednesday afternoon Physical Geography, Reading, Composition, Methods In Heading, Methods In Arithmetic. Thursday forenoon Arithmetic, Civil Government, History of Educa tion, Psychology, Methods in Geogra phy. Thursday afternoon Grammar, Geography, . American Literature, Physics, Methods In Language, Thesis for primary certificates. . , Friday forenoon Theory and prac tice, Orthography, English Literature. Friday afternoon School Law, Botany, Algebra. Baturday forenoon Geometry geol ogy. Saturdny afternoon General His tory, 13ookkeeilng. , W. M. SMITH, County School Superintendent. 12-9-10t 12-9-1 Ot-aad-lt-wkly 0 Journal Want Ada Urlnj Results Children. Cry FOR FLETCHER'S C AS TO Rl A All patent medicine or niedlclnetad rertlsed In this paper are for tale it DR. STONE'S Drug Store Rule hi, Oregon Also Dr. Ntone's I'OISOX OAK BEJIEDI A snow white medicine, contains so sugar of lead, opium, nor other poi sonous drugs. Applied every hour It at once relieves, and soon cure In flammation of tbi tic In generally known aa l'ulson Oak. 25c and SOc bottles. I " j i Hand Bags at Entire Line at Xmas Suggestion) Barrcttes Back Combs Toilet Sets Silk Hosiery Mesh Bass Muslin Underwear Table Cloths December Clearance of Suits and Coals Regular pr.cies $8.50 to $10.00, Special s 5.00 Regular prices $12,50 to $15.00, Specials 7.50 Regular prices $1 7,50 to $20,00, Special $1 0.00 U. G. Shipley Company lnlNf Pennlnr DEI 145-147 North MtKLUAfliusK Between lltato and Court. PKICE8 XMAS - CAKES fii When atOSPortlandii Go BOWERS n k i it i 6 . n s; ' ' B K lii I 1 1 1; t; cub ( A m i m vt m a '-it ,wr , - t ., ... F. P. WILLIAMS, CALIFORNIA .... : ..' IS FAMOUS THE WOULD OYEB For Us splendid hostelrlea, its varied attractions. Us fine beaches, hot springs and pleasure resortn All thane cna be reached with ease by the 1 SUNSET lOGOENHrbrlASTAI ROUTES "Itoad of a Thotmind Wonders" ItoutH of Shanta Limited Excursion Tickets Costing $55.00 Portland to Los Angeles and Return. On sale dally, good six months with stop-overs coins or returning. Corresponding low fur? a from other Oregon polnta. Call on our agents for IMmso.VELY ILMl'TK.m: LIT EHATl'UE Dexcrlblng Ban FranrUco, Oakland, Hlanford I'nlvcrslty, Lick Ob servatory, ftanU Cruz, Del Monte, 1'hbo Kobles Hot Kprlnga, Santa Marbnra, Ioa Angele, Long Delicti, Han Diego, The Old Spanish Missions, yoeemile National Park and Dig Trees, and other placet of Interest In the Goldon Klate; or write to JOHN M. SCOTT, General Passenger Agent. Portland, Ore. PAGE Tnr HMM MM Reduced Prices j nave you seen our comprehensive display of fine hand bags? Nothing nicer for Christ mas presents. Real Seal. Goat Walrus, Satin Velvet, X Suede and fur mated- t als. The very latest in style and best of work- r manship, fitted with long cord and leather J handles. Reduced Prices. s Sweaters Neckwear i Manicure Sets Bed Spreads Stationery Beaded ,Bag Lisle hosiery Handbags Umbrellas Scarfs Waists, Kimonas Guest Towels Lunch Sets Gloves liberty Street. & FANCY CAKE For Chrlatmaa from the Capital bak er; 1b sure to be the center of attrac tion, not only because tt looks good, but bocauae It will taste aa good as It looks. And ao it Is with all our plot, pastry and Christmas goodlea- delicious and wholesome. Send la .. your Christmas orders early to insure fulfilment CAPITAL BAKERY 4!it Court Btreet Phone 154 to the Rates $1,00 up. Break- x fast and lunch 50c, Din- i ner $1,00, Also a la J Carte servb in grill, One ': block, from Oregon Elec- - trie on 11th and Wash- J Ington streets. Salem people cordially invited to t I.- L- il. .(.. T ; mane our nouse xneir t . i , , neaaquaners. formerly with Marion i