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About Daily capital journal. (Salem, Or.) 1903-1919 | View Entire Issue (Feb. 3, 1914)
All the News that's FitTjto Print! The Best I Newspaper f i THIRTY-SEVENTH YEAR. SALEI WK fflUflglS Hillsboro Decision Covert Poin ts Raised in All Others and Opinion Is Written on it Judge Eakin Writes Opinion and All Others, Except Burnett, Concur Election Is Up held on Every Point Registration Law of 1913 Denounced as Trap Aimed to Defeat Local Option Election All Questions as to Registration, D ate of Election and Other Mat ters Decided Against Wets. The Oregon supremo court this morn-1 ing decided, seven local option cases in favor of the drys and settled the fact ' that elections cannot be set aside bo cause some technical objection has been raised. It decided that faults arising out of the Gill 1913 registration act, confusion as to the timo when such elections should be held and other al leged reasons should not avail in hav ing "the will of the people" set aside. The opinion of the court was written in the case appealed from Hillsboro, er notices of the election wero not that day was void, which was conduct and in deciding the Salem, Stnyton am' given; (4) that the election was not ed under that registration law. In oth othor cases, the court merely referred held upon the day appointed by law; er words the 1913 registration law op to the Hillsboro opinion. Judge Burnett and (5) that the votes of 500 persons erntod as a trap that would dofeat a wrote a dissenting opinion and stood alone, the other six judges favoring the dry side of the issue. In his opinion Justice Eakin declared that the 1913 registration law was op erated as a trap that "would defeat a local option election, and as a fraud on the voters of Oregon.' ' Petition Valid. The supremo court held that the pe tition for the local option at Hillsboro was valifl because it had been circulat ed under the then existing laws. The election wns bold Novombr 4, and the decision of the supreme court holding tho Gill registration act invalid wns not filed until November 23. The court lield that the eloction and vote there under should not be held void and a community disfranchised by reason of a defective law that would affect the right of the petitioners to Bign a peti tion. Further the court holds that an election could not be disturbed by a preliminary proceeding that docs not go into the qualification of signers. General Election. The attach on the election because it was not. held on the day of a general election also fnilcd. The court held that the homo rulo amendment oper ates as before, except that now a mu nicipality, or any precinct therein, is a subdivision of tho county. The election is held sufficient in ev- ery "respect and the same ruling ap plies to the two Salem cases, the Stay Ion case, Springfield and all other towns in which there have been liquor contests. The Salem cases are all based on the following, which states the facts and conclusions in all. W. V. Wiley, plaintiff and appellant vs. P. B. Reasoner, county judge, et al. This is a suit to obtain a decree de claring the local option eloction held in the city of Hillsboro on November 4, 191.1, illegal and void, and to vacate the order of the county court, made November 1", 1913, declaring prohibi tion in said city, Tho plaintiff was a liquor dealers therein. Tho said city of Hillsboro, together with contiguous territory without the city, for county purpose is composed of two precincts; for city purposes, it constitutes but ono voting ward. On October 1, 1913, peti tions containing a large number of sig natures were filed with the county clerk and presented to the county court, pray ing for a local option election in the city of Hillsboro on November 4, 1913. On the lny of October, 1913, based on said petition, tho county rourt or dered that an election be held In said the three yours' residence requirement, city on said date to determine whether tho sale of intoxicating liquors should be prohibited therein, and directed that the notice of election be given. Paid election wns held on said date, and re suited in 23 majority votes for prohl bition. n the 17th day of November, 1913 the comity court, pursuant to the canvass of the votes of said elec tion within said city, entered in order declaring the vote to be in favor of prohibition and prohibiting the snlo of 5 ECTION intoxicating liquors tnerein. Upon the trial of this suit the court denied the application of the plaintiff, and de- creed that the order of prohibition was o lid. The plaintiff appeals, Five Contentions. Eakin, J. The following contentions are mndo by plaintitf: (1) That the signors on petitions for a local option election wero not registered voters; (2) that the order of the county court cull- ing the election was invalid: (3) prop who were not registered were cast and received. The petition beforo the coun-. ty court asking that an election bo hold to determino whether the sale of intox icating liquors in the municipality of Hilluboro shall be prohibited alleges that the petitioners sro legal voters of tho municipality of Hillsboro. His place of residence within Hillsboro is given opposite the signature of each petitioner. The clerk certifies that 143 of the petitioners wore registered vot ers, wnicn were more tnan tlian tnc number required. Of course, tho clerk's cortificato was mado from the regis tration law of that year, which this court thereafter, qn November 25, 1913, held to be unconstitutional; but the election was held on November 4th prior to the decision, and it was too late for tho plaintiff to question tho qualifications of the petitioners after the election had taken place, at least without proof that the petitioners wero not lognl voters within the city. The registration law was held void only be cause the taking effect of it was made to depend on the approval of the su premo court. The registration taken thereunder actually disclosed that those registered W'ero legal voters when cer tified by the clerk; and tho election and voto taken thereat should not bo hold void and a community disfran chised by reason of a defoct in the law that would affect the .right of the petitioners to sign the petition. In tho designation of who may petition for a local option t lection in section 4920, L. 0. L., namely, "registered vot ers," the word "registered" may be considered as suiplusago under the cir cumstances found here. Had the peti tioners been registered only under the 1899 registration law, the potitious would not have been received or acted on by the county court; and if It was not sufficient that they were registered under the 1913 law, then section 4920 contains an impossible requirement as to registration when there was no means of compliance available to the petition ers, and the petitions, If signed by vote era qualified as to such undor the re quirements of the constitution, const! tutod a substantial compliance with the statute. Tho court will not hold the petitions lrsufficlont for that defoct without proof that tho signers were not logal voters, the duty to establish which dovolvod upon the plaintiff. Tho pur pose of the petitions and tho order of the court are only a method by which the electors may secure the submission of tho local option question to tho vot ers; and the election having been call ed and the vote taken, the result should not be disturbed by reason of an ir regularity in a preliminary proceeding that docs not go to tho qualifications of the signers. It mny bo jurisdiction al thnt the petitioners be registered, but that can only be truo in case there is a recognized registration, or an op portunity to register. It must be borne in mind that at the time of the signing of tho petitions asking for the election, at the time the clerk certified that the petitioners were registered voters, and rTTriT 1 JiiiiU when the court made the order, as well as when the election was held thereun der, the registration law of 1913 was recognized as being in force, and that the registration law of 1899 had been repealed. And to now hold that Only voters registered under the 1899 law could petition for the election would bo to hold that it was not possible for the voters to petition for a local option election during the year 1913, and also to hold that the state election held on local option election and as a fraud up- on the electors of Oregon, namely, that those registered under tho 1913 law could not petition because it was void, and those registered under tho 1899 law could not petition becauso, as tile law then stood, it had been repealed. But tho rights of the voter cannot be so trifled with. So far as the petitions were concerned thoy wero actually reg istered under tho void law, the only reg istration that could have bocn recog nized when tho court ordered the elec tion; and we will not hold tho order calling tho election void without proof that tho voters, petitioners were not legal Voters Qualified. . Again, it is contended that becauso 500 of the votes caBt at tho eloction were registered undor tho 1913 rcgiBtra tion law, they wore not qualified voters; that they did not, when pre senting tli oi r votes, tako the affidavit blank A of section 3449, L. O. L., and, thoreforc, that their votes were illo- gal, and tho election should bo bold d. The county court acted on the registration law of 1913 as a valid law, as did tho county clork, the election officers, and tho voters. H was not questioned that those partios who reg istered thereunder wore legal voters under the constitution. . The registra tion law was not enacted to add to or. tako from thoso qualifications, but only to place a safeguard around the elective franchise; end, although tho law was declared unconstitutional bo- ause the taking e.'foct thereof was mado to depend on the approval of an authority other than the legislature or tho voto of tho people, yet until so held void it operated as such protection to the election of November 4th. The observance of it by tho voter was such evidence of his right to voto as would justify the acts of the county court and the election boards. Tho voter by his faith in the validity of the law per formed every act that would have bocn required of him under the registration law of 1399, as amended. The county court, the voters, and tho election boards acted with tho understanding that the registration law of 1899 and amendments had been repealed, and the eloction should not bo held void so long as thoso voting wero legally qualified under tho constitution. It was urged at the argument that every voter who is not registered Is to be considered challenged and must swear in his vote upon blink A. If it were now assumed that there was no registration, the af fidavit of the voter taken in tho at tempted registration under the registra tion law of 1913, containing the facts required by blank A, was before the election boards, and the voters may be deemed to havo thereby complied with that requirement, -and is no objection to the legality of tho election. A dupli cate of tho registration card was in the possession of the election (section 4 of the act)' and the precinct registers were sent to the several precincts, to- (Continued on pas; M Everybody SALEM, OREGON, TUESDAY, FEBEUABY ttv LI INI TO H 1 EMBARGO RAISED ON B! PRESIDENT WILSON i Americans in Capital of Mexi co Notified of Step to Be Taken at Once. AMERICANS ARE FLEEING Foreigners Losing No Time In Getting I Out of City of Mexico on Receiv ing Important News. UNITED PRESS LEASED WIRE. Mexico City, Feb. 3 American Charge d'Affairea O'Shaughnesey today received from Secretary of State Bryan Instructions to notify Americans and other foreigners in the- Mexican capital of President Wilson's determination to lift the embargo against the importa tion by the rebels of arms and ammuni tion from the United States. Many Americana prepared immedi ately to leave, and it was believed by tonight every train for Vera Cruz would be crowded with fleeing foreigners. SIS UNABLE TO GET OF IS UNITED MESS LEASED WIIIB.j San Francisco, Fob. 3. Maury I. Diggs aud Walter Oiljigan, churged with an offense against Ida Poarring, aged 17, wore still in tho city prison today. Friends on the outsido were making overy effort to find sureties for thorn to tho amount of $10,000 each, but evidently it was not as easy as Diggs, who had expected to be released on bail yesterday aftomoon, had ex pected. Tho young man kept up his spirits. however, declaring he would be out , hi toiiay- "Aml Oillignn, probably wi" o released with me, ' he added "A blanket denial of tho accusation goes for me." SALEM BUT SALOONS According to County Attorney Ringo, the decisions rendered by tho supreme CUliri, will limn HU l-'i;i:v liinvmi no vuo l in t .. rc..n. t.....r. manufacturing of beer in Salnm is con cerned. Ho states that the Salem Brow- ery Association cun proceed with its' tativo Moore, of Pennsylvania, "is be work legally, but that it cannot sell, Ing principally fought now in the head barter or trade its products in Salem, lines of ' nlifornia newspapers. Brynn Following tho derision the local rutnil Is opposed to tho Raker bill. Ho does dealers gave up all hope of having j not want to declare war with Japan at their respective businesses opened up , the instance of California newspapers, again this year. Most of tho building Tho amendments would embarrass Tros formerly occupied by saloons were al-J Ident Wilson's administration, and It is ready advertised for rent or remodeled certain they would bo resented by Ja- for some other class of business. Bil liard tables, soft drinks and other mild refreshments are being supplied to the old patrons in some, and, with the ex ception of two or three, all of the stocks of liquors have been shipped away from tho city. The Weather The Dickey Bird says: Oregon, fair tmiieht, warmer east portion; Wed ncsday proliiibly fair west, snow east portion, wind mosly northerly. "this is JUSf ' (LIKE su!Lr J vSs Reads the 3, 1914. ENT AIMED AT LI Hayes Amendment Is Defeat ed by an Overwhelming Majority of Solon. RAKER SUBSTITUTE FAILS Amendment Aimed at All Asiatic La- borers Except Few Districts Set Forth Also Defeated. UNITED PRESS LEASED WISE. Washington, Feb. 3. Placing pa triotism above partisanship, the house of representatives, by a vote of 203 to 54, refused this afternoon to make any declaration on an Asiatic exclusion pol icy aimed principally at Japan, ThiB stnnd wns taken on the Hayes amendment to the Burnett-Dillingham immigration bill, and it went down to overwhelming defoat, dospite the fact that most of its teeth had boen drawn in a modification introduced by Ropro sentative Lenroot, and adoptod by the house late yesterday. All party linos wore eliminated in the vote on the Hayes amendment. True to his promise, Representative Raker introduced his antl-Jnpaneso amendment as a substitute for the Hayes amendment. It was snowed un der by a vote of 182 to 0. House loaders now believe that the Burnott bill will be rushod through to an early vote. A voto on tho literacy test provision was expected this after noon. Aimed at Asiatics Tho Raker substitute for the Hayos amendmont provided for tho exclusion of "all Asiatic laborers " except thoso who came from a district east of a lino bounded by the Red, Mediterranean and Aegean seas, the Caucasus mountains, tho Caspian sea and the Ural mountains sxcept Asiatic Turkey Representative Hardy, of Texas, as sorted this plan would exclude only Asiatic laborers admitting Malays and Africans. Bryan Has Faith in Treaty, "Secretary of State Bryan believes all theso matters will be settled by tive Burnett. "If not my committee tlve Burnett. "If not my commltttce will report out a bill which will meet them properly Hnyes is trying to make cheap capital against Raker and tho ; Democrntin party." Hayes denied this. Representative Gardner Republican of Masaschusotts, said the language already In the bill was opposod by the stnto department and foreign countries to which it had been submitted. Hnyes declared that everyone desired the exclusion of Asi atics Representative Harrison, of Mississippi feared tho amendments would create distress and anger a :,... kutik.ij' iiiiiiuii i War In Headlines A Japanese war," said Reprosen- pan." Representative Mann denied that the Republicans were plnylir politics. "Wo should reject these amend ments'' he snid. "The thing of deal- . ing with a foreign nation Is a delicate trmk. If the state department cannot eradicate difficulties by negotiations then it fvill be timo for congrese to act. Oood Time to Roup Cool, "I am not prepared tn invite war with Japan or any other country. Now is the time to keep cool." Marin praised Haven, adding I "Hayes nuuht to protect California even against herself.'' "If these amendments will embar rass President Wilson we should reject them," said Representative TiSngley. "But I Bin getting weary of sidestep ping tho .Tnpaneso question. Wo should have no fear of war with Jnpnn, For one thing Japan is bankrupt." Daily Capital Journal DDIr Tlim r rwvc inu Holds Insufficiency of Petition in Hiofipi: DiiDMCTT nnro JUOIIUL UUmiLI I UULO : NOT AGREE WITH HIS A tion in Hillsboro Is FatalBecause Petition Is Invalid Elec tion Following It Is Invalid- -Quotes at Length Laws Which He Believe Supports His Contention Opinion in Full. In dissenting from the opinion of his associates of the supreme court in the liquor easoa today, Justice Burnett de clared that the Hilhboro eloction was invalid for the reason that the petition was not sufficient and that an eloction resulting from a petition which does not moot the logal requirements cannot be uphold. Ho considered the case at some length. His opinion follows: Dissenting Opinion by Burnett Justice. It is conceded in this caso that the potition for the local option election in quostion here was signed in control ling numbers by porsons who were reg istered as votors only under tho so-call ed registration law of 1913, which this court declared unconstitutional and void in City of Portlnnd vs Coffoy, or, , Pac. , decided Novembr " 1913. In other words, if ' .ho question of whetheV tho signers of tlie petition wore "registered voters" within tho meaning of the local option law is to be determined by any other statute than tho enactment of 1913, then there were not enough signers to give tho county court jurisdiction to order a lo cal option eloction. It is hornbook law "that courts of limited jurisdiction end courts of gen oral jurisdiction, whon exorcising a Bpe cial limitod power conforrcd by statute, must show affirmatively .that jurisdic tion has been acquired." This rulo was declared in Johns vs. Marion county, 4 Or. 40, and has been reiterated in a long lino of docisious since. This lnu guago there used is peculiarly appllca bio to this caso: "Under the statute, the court has no power over tho sub ject until a petition of the prescribed character is presented, and it is necessary that tho record should show affirmatively that juris diction has beon thus acquired, or the proceeding cannot bo sustained." State, court, Bitting in bane, have declared vs. Officer, 4 Or. ISO; State vs. Myers, witout a dissenting opinion that in en 20 Or. 412; Hitting vs. Douglas County, acting that statute of rogiBtratiou the 24 Or. 409, 33 Pac. 981; Cameran vi. legislative assembly violatod the fun- Wasco County, 27 Or. 318, 41 l'nc. 100; Orndy vs. Dundon, 30 Or. 333, 47 Pac. 915; Siino vs. Spencer, 30 Or. 310, 47 Pac. 919; Mulkoy vs. Day, 49 Or. 812, 81) Pnc. 9"7; Dean vs. Washington Nav. Co., .r9 Or. 91, 115 Pac. 284. More espe cially is this true when proceedings un der the1 statute, as in this instance, may bo commenced and carried as fur as milking the order for tho election with out any previous notice or giving any opportunity to contest tho validity of tho potition. Depends Upon Petition. By tho provisions of Hie local option law the authority of tho county court to submit to tho electors tho question of prohibition of the Palo of Intoxl eating liquors is made to depend upon filing with the county clerk "a petition therefor signed by not less than ton per cent of the registered voters" In tho territory involved. Such an In ttnnnent so signed is therefore a juris dictional necessity with which tho coun ty court cannot lawfully order an elec tion. It is a restriction which tho people themselves havo imposed upon thnt tribunal, for the local option law was enacted in the initiative process Ho far as signing the -petition is con cerned It Is not nn exercise of th( electoral franchise, and the cutistitu tiunal right to vote Is not involved. It Is taught in Roesch v Henry, 51 Or. 230, 103 Pas. 4319, that, as signlnii uch a potition Is not an exorcise of tli doctoral franchise, it Is not in deroga tion of the constitution to requiro all such petitioners to bo registered votors There the opinion cites tho section of the statute requiring a petition of ten per cent of tho registered voters tho other section directing the county clerk to compare the signature on tho 1 The Largest f J Circulation i t trirrii ON TRAINS AND NIIW1 vcn i o. stands, riva cents. ES I CASE Calling for Local Option Elec- petition with their signatures on tho registration books of the election then ponding, or if none Is pending, then with the signatures en the registration books and blanks on file In his office for the preceding general election. The court, speaking by Mr. Chief Justice Moore, then says: "Construing those clauses in pari ma teria, it is manlfoet that not qualified elector or legal voter is a competent: potitioncr for" a local option eloction un less his signature appears on the regis trativo books of the election then pond ing; or, if no eloction bo pending, then his signature must appear on the regis tration books and blanks of the pre ceding general eloction. The priviloge of signing a potition to initiate a local ion oloctlon Is not a right of fran chise In which all electors enuraorated in the orgauia law (section 2, article II Const.) enn participate." Must Be Registered. No voter has an inalienable consti tutional right to sign a local option potition, for that privilege is conferred by a more statute which may be ainonded or abrogatod at any time by tho legislative powor. The people them selves having declared that signers of such petitions must be "registered voters," it is not for the courts, the croaturea of the people, to say that the word "registered" may be eliminated from the statute to suit the occasion or under the circumstances. ' Whore then are we to turn for a definition of the term "registered voters! Manifestly not to the regis tration law of 1913, for this court in tho case of City Portland vs. Coffoy, supra, has solomuly decidod that law to bo unconstitutional Lot only as to its affirmativo provisions but also as to its repealing clauses. Six judges of the lament.nl law of the state ordaiuod by tho people themselves. It that statute is void as thus determined, no lawful procedure can be founded on its pro visions. If it is unconstitutional at all, it is unconstitutional for all per sons and fur all purposes. It Is void for both saloon keepers and prohibition ists, for both alike are protected or restrained by tho constitution, If the 1913 registration luw Is powerless to af fect a city election in Portland, as de cided in tho Coffoy caso, it cannot af fect a local option petition in Hills boro, nor make its Bignors "registered voters." Wo counot properly speculate what tho county court would have dono if a petition had bocn presented to it signed only by voters registered under the former statute. If that were a question before tho court we nughi not to presume thnt tribunal to be ignorant of tho law, but rather that It wold be as loyal to the constitution as wo are. Neither is it within our province to disturb tho settled principles of tho law about jurisdiction in an effort to ally the disappointment possibly ex perienced by some of the electorate over tho error of tho legislature in pass ing nn unconstitutional enactment. The situation thus arising cun be remedied rightly only by legislative action which lies beyond our authority. The validity of the statu election In November, 1913, is not here involved, for it was held under a general law authorizing It, and this court upheld that statute by unanimous decision of the ciiko of i'qui v. Olcott, Or. ' 133 l'nc. 775. The right to vot is an other question to bo determined ac- (Continued on page four.)