Daily capital journal., December 21, 1911, Page PAGE THREE, Image 3

Children Cr
r and
Experiments that trifl , uh
' What is CASTORIA
and allayg Feverishness. Fof lb destry Worma
ha been in constant nse for Cft years 16
Flatulency, Wind Colic, aU t!JSS 1 ' ConPatlon,
Diarrhoea. It Meuiat2. Teth,n? Troubles and
cuimm CASTORIA always
5
IBeais the
m - it exr jr y
The Kind You Dave Always Bought
In Use For Over 30 Years
THcetWT.u.eew,T7 tT.IIT, ro, cm
s
ure to please
wholesome
A
I ways an
and delightful drink,
L
ends strength
wearied physique,
E
ffects a soothing cure for the
nervous ills
akes life
cheers
B
i rings good
who partake in moderation.
E
Inlivens the spirit of the down
cast and
Endows existence with hopes
and aspirations
Restores man to fulness of
strength and activity,
In Choosing a Gift
For
Why not give something that will
give pleasure to the whole fami
ly during the entire year. Any
instrument from our unexcelled
line pianos will make the Ideal
present. Edison phonographs and
records; Victor and Columbia
hornless talking machines. Sure
ly you want one of these little
wonders for Christmas.
CHERRINGTON & PETERS
I 247 N.. Commercial
Resident Piano Tuner, btjnthea
;
XMAS
CAKES
I
mi
I. , I
JLA
i
f am
rbn 8'm ot
, Jnst-as-good"
are but
Signature of
the lovers of a '
beverage, S
invigorating, pure
to the weak and
of life,
more pleasant and
the heavy heart,
fellowship to all
disheartened,
MM
Xmas
Street. Salem, Oregon
FAXT CAKE
For Christmas from the Capital bak
ery is sure to be the center of aUrac
tion. not only because It look. good,
but because It will taste a. good
,t looks. And so It U
pies, pastry and Christmas odta
dPllcious and wholesome. Send In
Jour Christmas order, early to lr sure
fulfilment
CAPITAL BAKERY
439 Court Btree
I5JWCTI0X IADS FIMAXIKT,
(Continued from Pact L)
the petition. But if it ta not a rail a
petition, It cannot have that power
against the measure, and the Utter
becomes a law.
It la the purpose of this suit to test
this matter. It Is alleged in the. com
plaint, and it Is not denied by the
answer, that the plaintiff, at and for
a long time prior to the commence
ment of this suit was a resident, in
habitant and taxpayer of the city of
Eugene, Lane county, Oregon, and
was and is a legal voter therein, and
as such he claims tht he has right
to prosecute this suit. But it is
claimed by counsel' for ttre-defeadant
that plaintiff has not the capacity to
bring this suit and that this court
does not have Jurisdiction of the sub
ject matter of this suit Neither of
these contentions ha the slightest
support in authority. The whole mat
ter is settled by the provisions of
section 3474 L. O. C, which are: "If
the secretary of state shall refuse to
accept and file any petition for the
Initiative or referendum any citisen
may apply within ten days after such
refusal to the circuit court for a writ
of mandamus to compel him to do so-
On a showing that any peti
tion Bled is legally Insufficient, the
court may enjoin the secretary of
state and all other officers from certi
fying or printing on the official bal
lot for the ensuing election, the bal
lot title, and number of such meas
user The power to hear and determine
the legal sufficiency of a petition al
ready filed. Is expressly conferred on
the court by statute-. The ony matter
not expressly stated Is the right of
plaintiff, as a citizen, to bring the
suit. But by the preceding sentence
of the statute, the power is express
ly conferred upon any citizen to bring
an action to mandamus the secretary
to secure the filing of the rejected
petition, and as a citizen has the
same, If not more Interest in tbe va
lidity of the petition already filed as
he has in one that has been refused
the privilege of being filed, and as no
other particular person is designated
in the statute as a proper party plain
tiff to enjoin the secretary, we must
conclude that it was the legislative
Intent that any citizen might bring
such a suit, ag well as to bring an ac
tion at law to mandamus the secre
tary.
The complaint alleges that the pe
tition as filed, contains a total of 13.
615 names, which number is admitted
by the answer to be the correct num
ber; but it Is also alleged In the com
palnt that a certain -part of this pe
tition, consisting of 63 sections, the
respective numbers of which are
therein stated, and containing 5105
signatures, are void, for the reason
that non e of the separate sheets
thereof, containing the names, have
anything printed or written thereon
to donate the purpose or object that
the persons whose names are written
thereon may have had in view when
signing their names thereto; that is.
that there 18 no form of petition on
any of said sheets, as required by
sections 3471 and 3472, L. O. L.,
and Is in violation thereof.
The facts, so alleged, are denied by
the answer, but the petition, which is
in evidence, confirms the allegation
of the complaint. The legal proposi
tion asserted by plaintiff In connec
tion with the fact Is controverted by
the defendant. The provisions of the
law, applicable to the facts shown
have been interpreted by the supreme
court of this state In the case of Pal
mer vs. Benson, 50 Or., page 281 of
the opinion. This was an act'on
brought against the secretary of state
to compel him to file a referendum
petition, which he had declned to re
ceive and Ale, because of a defect Ive
form. The form of the petition In
that case w.n the question before tli
court. After discussing other fea
tures of 'the petition, the court iiaid
at page 281 of the opinion-. "Evident
ly the pit Itlon must be on every sheet
on which signatures are placed, but
the act will be on a separate sheet,
etc." The reason for this require
ment Is obvious and substantial, and
cannot with any degree of fairness,
be denounced as a mere technicality
of the law. but in fact It Is a most
essential and salutary provision, as
the facts of this case will demonstrate
Without some such requirement,
there woud be no certainty of the
intent or purpose which the several
persons had when signing helr nan.os
and rertainy It could not be said that
it bore any evidence that they In
tended to subscribe to statements In
scribed on a separate paper, although
bound together in the same package.
It is easy to attach papers having
only signatures on them to another
pspf.:, declaring a purpose dlff"ent
from that Intended by the signers
Tfcf. verity of a petition compourded
in such a manrw r would depend upon
the parole testimony of many differ
ent persons, and this manner of es.
tabllshlng the petition the la does
not contemplate. Every sheet must
be a petition within and of itself and
contain the prlntnj form of the Ra
tion upon Its face, and tbe affidavit It
required endorsed thereon. Tbe parts
of the petition to which this objection
la made bear evidence upon the face
thereof that the respective tablets In
to which these several sheet, have
beea bound, have - beea panted
rrom tne other sheets or doc-
am e a ta to which at some tlm they
had been attached before being fllod.
. for the secretary of state has testi
! fled they are now In the same condi
tion In which they were when filed,
j Although he la expressly authorized
; by statute to detach sheets contain.
iug signature (Tom the sheet, con
taining a copy of the measure, and
bind the former under one cover, at
tached to one or more copies of ihe
measure, but this, it done, must be
done In the prseence of the governor
of tbe state and of the person offer
ing the petition for filing, and bi
must mum to the person filing the
petition the detached sheets contain
ing r copy of the measure; yet he
testifies he did not do this. He was
not required to do so, but If he at
tempted to change their form, he
must do it so that tbe evidence thereof
be Indisputable- Still we find these
petitions all so rearranged as to be in
the form contemplated by the statute,
that they may have, only after they
have been filed, and not before that
time, or while being circulated. Who
so arranged or rearranged them, and
was it lawfully done. This depends up
on the testimony1 of those who are
chiefly responsible for Its circulation.
and particularly Mr. J. H. Parklson.
We have already state,) that the
statute does not contociplutn that tht.
verity of this petition, as to the ma
terial statutory requirements thereof,
should depend upon the parole testi
mony of any one, but requires that it
bear upon Its face tbe evidence there
of at the time of being circulated and
at the time of being tendered for fil
ing. Much less then could we enter
tain the oral testimony In explana
tion of the present condition of the
petition as to its present form when
it Is surrounded with such a mass of
fraud, charged and confessed In this
case, and by one who at least Is Indi
rectly. If not directly, responsible
therefor. This part of the petition,
having no form of petition upon the
sheets, and containing over five thou
sand signatures, is therefore void.
It Is also charged In the complaint
that the whole petition Is void be
cause each sheet thereof Is not at
tached to a full and complete copy of
the measure. The petition, 'as filed
and not already considered and dis
posed of, Is made up into tablets of
ten separate sheets containing on each
a form of the petition and slgnat-tres
verified In most Instances by an afll
davit, made by the circulator, on the
back of each sheot. These ten sheets
are bound under a cover with a single
copy of the measure at the back under
the cover. The wording of the stst
uto, when carefully examined, seems
to require a copy of the measure at
tached to each and evry sheet, and
a petition made up and circulated as
this one seems to have been, does not
meet the reulrementa of the law.
Our supreme court has not. so far,
const rued the law so as to cover this
point, and In view of the grave
charges of fraud made in the com
plaint and particularly at least ad
mitted upon the trial, It Is oerhaps
better that the flnnl disposition of
this case be made upon the lutt(X-
frround, which we will now proceed
to discuss.
It is charged In the complaint that
some 25 different persons who clrcu-
ated different parts of this petition,
as the agents of H. J. Parklson, cot,,
spired and confederated together to
corruptly make a spurious and false
petition by the writing of flctltloin,
imeg and addresses therein, and by
forging the names of legal voters of
the state; and that In pursuance there
of the Baid conspirators did write In
to said petition large numbers of
spurious names and forged the names
of many legal voterg of the state
therein; and by reason thereof all of
the names in that part of the peti
tion, verified by these several circu
lators, are spurious and void, and
their affidavits false. The part of the
petition thus challenged, Includes
about ten thousand names out of a
total of thirteen thousand six hun
dred and fifteen. Quite a proportion
of these alleged fraudulent namei go
to make that part of the petition
which Is void as to I's form. Thme
chargeg of fraud and conspiracy made
In the complaint are denied by tSe
answer, and the plaintiff has the bur
den of proof as to that Issue. -
As the taking of the testimony on
this Issue progress, d at the tr'al.
plaintiff made such a forcible and con
clusive case of the alleged fraud ro
such a decree that defendant, by hit
counifl. voluntarily adm'tted In open
court that names to the number of at
least 3722 on thU petition v.er" anrij
are fraudulent and void. Thin ad
mission includes the following ,e
clef Id parts of the petition:
"Sections 4. 42, 53 and 54 verified
by Jos. Gorham: sections 5, 6, 20, 43,
4 8. 62 and 63 verlf,-d by Harry Gold
man: sections 97 verified by Robert
Goldman; sections 14, 27, 47 and 55. i
verified by Charles Faik; sect'on 39.
41 and 66, verified by Fred Koch;
sections 45 and 58 verified by Harry
Color, and sections 79 verified by W.
H. Reynolds."
It thus appears that of the total
number of names admitted to be void
3098 are on that part of the petition
which Is not challenged because of
tbe form of the petition, wh'le 58"
ar on tbe defective part of the petl j
U THTRSDAr, DECEMBER i, mi.
ii Qur Store will
RED CROSS
" mum.
Silk P.ttfrnnf German Silver Mesh Dags
7v,rT ri r a- m. Withteng or short chain handles.
Extra quality rnessa ine and taffeta-silk Regular price $3.00, Special $2.26
petticoats, all the leading shades $3.75 ea Regular- price $3.50.. Special $2.63
Regular price $4.75. Special $3.57
Hand Bags ""
Suede, velv et and plain leahters, fit:d c?ie9 TtaiJoredDLinen Taiu
with coin purse and long or short handles. Extra ouahty linen. Regular prices $2.25,
Black and leading colors. Regular prices $2.50, $3,00. Special $1.03.
prices $1.25 to $i.5Q. Special 89c. Women's, Misses and Chil-
Vienna Novelty Purses D , d'en,f Sweaters
Hand painted on satin. Regular prices KrSitrlJlH nSck
50c, 65c, 75c. Special 3So ffi "pfe 0Qnxareae,cardlnal-
Quality
Merchandise
ttttttttttttt4tHi.t4tt'4titt.........i.Al,ttttM1),t)()t)t)))t)
tlon, and therefore such number of
Invalid names appearliut on the per
fect form are cumulative, and should
he added to the 6105 names appear
ing on the defective form, making a
total of 8203 names on the petition
which are Invalid. Subtracting this
total from 13,615, the total number of
names on the petition leaves only
5412 names, which we may assume at
this stage of the discussion to be
valid. It la admitted by the plead
ings, however, that 8135 names are
necessary to effectuate a, reference of
the designated measure to a vote of
the elctorate. This "oncluslon neces
sarily terminates the case In plain
tiff's favor, even though no other
frauds should be found In the case.
. The public Interest, however, de
mands that the full extent of the fraud
shown by the paintiff's case, be con
sidered and exposed to public view,
to the end that the danger to public
Institutions may be appreciated and
some corrective remedy applied by
the legislative branch of the state
government.
Plaintiff's evidence, viewed In Its
entirety, challenges by testimony
more or iors persuasive the Integrity
of over 6000 names on the petition,
other than those admitted by defend
ant's counsel to be void. This Is up
on the principle of adudlcated elec
tion cases, where the element of fraud
perpetrated by or with the knowledxc
and connivance of the election officers
la Involved and Is shown to have ex
isted; such fraud destroys the pre
sumption of the correctness of the re
turns, and makes It necessary that
any pernon, who claims any benefits
from the votes, shall prove them;
and when no proof Is offered, and the
frauds are of such character that the
correct vote cannot be determined,
the -whole returns of the precinct will
be rejected. These cases appear to
rest upon the principle that when a
fraud to a material extent Is shown
char,"?eal)ls against one who is respon
sible for the Integrity of an ent're
transaction, It destroys the whole.
The theory which supports such rases
Is entlr'-ly applicable to the facts of
this case.
If, as usually happens, a number
of person Joln'-d In the ame petition
each one voucheg for the acts of the
circulator, and If the latter commit.
ted frauds In the preparation of the
petition, those who signed It must
bear the consequence, at leant to th
extent of the right to have their
names counted thereon. For, la th
case of election where the people se
lect election officers, and they disre
gard their duty, and aid in continu
ing frauds on the election, the voters
must be responsible for the conduct
of.'he officer, to thrf i-xtent of losing
their votes, although they may be In
nocent of fraud.
Knowle, vs. Yates. 31 Oa.. pane
82.
This limitation of the r!ght may be
put, however, upon a higher and
broader principle, that of public n
cess'ty. It appears from the general
struc'lre of the law that the burden
of challenging the validity of such I
peritlon Is cast upon the Individual
citizen, and not only that but he must
throw down the gage of battle with
a state officer, who may bring to hU
Continued oo Pag )
remain Open Evenkts Until 9 P. 7,1.
STAMPS FOR
anurruNU DAYS
Scores of
Bargains Awdt
Your Choosing
Hand Dags, Novelty Jewelry, La&es Neckwear, TaScrtd
linen Waists, Silk Petticoats, Silk Hosiery, an Jr en's
Coats, Sweaters, furs. Coats, Suits and Dresses.
U. G. Shipley Co.
145-147 North Liberty Street
Between State and Court Streets
When at
Go
1 -. .f. K
an wl :
?'!;:t;v., li ', Si.
. ; it i.4 j ii f
m m 3 ; art m Ft
'".- ,'t
F. P. WILLIAMS,
BOWERS
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There is no reason why you should
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VTALTEB X. PIEBCE
Pres. and Mgr.
-r
Best Bottom Land j
$45 Per Acre j
1 60 Acres, every foot level, rich, bottom soil. t
Only 12 miles from Salem and one mile from railroad i
and small town. X
Good house, barn and other outbuildings. Only 5 acres ?
cultivated Balance in valuable post and tie timber. J
Other land in same locality selling at $ 1 00 and up.
E. HOPER S SONS I
Investments
213 South Commercial Street.
44444
MM
SALE HERE.
UNTIL XMAS. I
Oiristi
Popular
S
Prices
I MM MM -
Portland;
to the
Rates $1.00 up. Break-,
fast and lunch 50c. Din
ner $1.00. Also a la
Carte service In grill, One
block from Oregon Elec
tric on 11th and Wash
ington streets, Salem
people, cordially Invited to
make our house their
headquarters,
formerly with Marion f
'