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K ( &! Ban VOl', . SALEM, OKEGO:NTUESDA5f NOVEMBER 10, 1806. THE) O RflGKET lius demonstrated the fact that business can be done on a CASH basis. Wc liave only one rule and one price for everybody, and make noexceptlons. Did you ever realize the saving derived from this plan of busi ness. We can afford to give you better goods at lower prices than can be found elsewhere. Our line of MO BRANCH ASYLUM Judge Hewitt's Injunction Is Sustained BY THE SUPREME COURT. vs. Hawkius 29 Wis. 473: Irwlno Kent. ot al. A V" V" Sft" N" N Z r OS ' V" owyivt aa n (iV ,, v- A Branch Cannot Be Located Away from Salem. Boots ahd manufactured by the Brown Shoe Uo. Mo., are the standard of quality. Shoes , of St. Louis, Our line of IS COMPLETE . CLOTHING . in great variety. Hats, shirts, hosiery, laces and em broidery, yarns, ribbons and all kinds of notions, sold at prices that will save you money. Our aim is is to increase our business and it will increase if quality and prices can do it. Call and Inspect our stock. Opposite First National bank, Salem, Or. E.T.BARNES, PROPRIETOR. Don't Be into buying anything lin the way of LOTH until you have seen our line and got our prices, We know where of we speak when we say that Out $10 Black Clay Worsted is the cheapest suit ever offered in the city, A new line ot over coats and hats just arrived and are offering them at prices that defy competition, Remember the place G. iuolnison The supremccourt has handed down a linal decision in thecaseof theStatc of Oregon, ex rel, James McCain, re spondents. Phil. Metschan.appeliant involving the payment of the $25,000 warrant for the lands purchased in Union county on behalf of the Eastern Oregon branch Insane asylum. The appeal went up from Marlon county on March 30,1890, and after months of deliberate-and devoted review a deci sion was handed down yesterday af firming the judgment rendered by Hon. II. n. Hewitt, judge of the cir cuit court for Marion county, depart ment No. 2. The full text of the court's findings is as follows: "Bean, J: This Is a suit com menced by the district attorney of the third judicial dlstrict.in the name and on behalf of the state, to enjoin the state treasurer from paying a $25, 000 state warrant issued on account of the purchase of certain land In Union county for the site of an in sane asylum under an act of the leg islature of 1893 (Laws 1893, p. 130) on the ground that the act in question is void because in contravention of the provision of the constitution locating such institutions at the seat of gov ernment. A demurer to the 'informa tion for the reason that It does not state facts sufficient to constitute a cause of suit, and "that there Is a de fect of parties plaintiff and defend ant,' was overruled and defendant declining to. plead further, a decree was entered as prayed Jfor.ln the in formation and hence this appeal. In support of tho demurrer It Is con tended that theie is a defect of parties defendant because the owner of the warrant, the payment of which Is sought to be enjoined, is not a party to the suit. If this is the r ule and tho objection had been properly taken it would have been fatal. The rule, undoubtedly, Is that the otvner of a state or county warrant Is a necessary party to the suit to enjoin the payment and, in some instances, the courts deeming him an indispensible party, icfusc to proceed to a linal determination of suit until he is brought in, although the parties to the record make no objection on that account or even I consent to proceed without him: City of Anthony vs. State ex rel., 49 Kan. 240; Buie & Cunningham, 29 S. W. 801; King vs. Commissioners' Court, 30 S. W. 257; State of Kansas vs. An derson, 5 Kan, 90; Graham vs. City of Minneapolis, 40 Minn. 340, Ship Chan nel Co. ys. Bruly, 45 Tex. 0; Board vs. T. P. & R. W. C 40 Tex. 310. But in Snyder, 30 Cul. 606; Wood ct al., 7 Colo. 477. I Now the language In the demurrer in this case Is 'that there is a defect of parties plaintiff and defendant,' and this, as we have seen, la Insuffici ent so that the question is not raised by the demurrer nor can the case be clashed with those in which tho courts have refused to proceed to the deter mination of ftsult to'enjointhe pay ment of a state or county warrant without tho owner or holder thereof being a party to the suit. As already suggested, the record Indicates that tho warrant In question was issued to the defcndant,and If so there Is no de fect of partic: Bowman vs. Hetzger, 27 Or. 23; but whether it, was or not the questions. Involved do not depend upon contravened facts for their solu tion, but arc questions ot laws which have been ably and exhaustively ar gued and can bo determined on this appeal without affecting tho interests I of the warrant-holder,should ho prove to be other than the defendant.except so far as the doctrine of 'stare decisis may apply to any future proceeding which may be Instituted by him to en force its payment. T4io domurrer.for want of proper parties, was therefore, properly overruled,and if by reason of the facts, the warrant-holder should have been made a party to the suit either on his own account or as a pro tection to the defendant it should have been made apparent by answer and, If ucccssary.tho court could have stayed the proceedings until he could be brought in. "It Is next contended that the In formation docs not stato facts suffi cient to authorize a court of, equity to Interfero by Injunction to restrain um payment, oi tue warrant in ques tion for tho reason that It does not appear that tho state w'ould be pecu niary injured or damaged by the con struction of an insane asylum In East ern Oregon instead of at tile scat of government. Tho question as to when and by whom a suit can bo maintained to prevent the construc tion of public bulldlnca at a nlaco virtue of its high prerogative Dower. to call upon tho courts through its proper law olTlccr to protect the rights ui its iwujjic. Ana to support a - -- ------ s TO, 257 the practical construction of that In-1 sirumcntby the leglslatlvcandcxccu- . live departments for almost, if not nro- OUltA. n nnnrtnr nf n on... ,, .. enorllnr, ..!... F. . ,'.-. . ' .' '.."? " -"Jl Vl- m . . i,u,ie JU ,b smncicni, ueneed uy the erection of educational that the grieyanco complained of Is a (institutions away from the seat of iiireatenca invasion or the right of tho people to determine what dispo sition shall bo made of the public funds exacted from them by the ex traordinary power of taxation. Now every use of such funds In violation of the provisions of tho constitution or organic law must necessarily be of mis cnaractcr. xiio legislature is but an instrumentality appointed by the state to exercise Its sovereign powers. In that capacity it holds tho public funds In trust for the peo ple. Except as limited by tho consti tution, action within its legitimate sphere is the action of the people, but when It undertakes to apply such funds in a manner or at a place pro hibited by the organic law, it Is exer cising a power expressly withheld but violating it3 trust and a court of equity will Interfero at the dictation of the sovereign power to prevent or restrain such application, without being required to show any bther In Jury. It Isenongh that tho threat ened disposition is in violation of the government, it no doubt should now be construed as to Include only such Institutions as arc strictly govern mental In their character. But an asylum for the Insane comes clearly within this construction. When, therefore, tho legislature assumed to authorize tho expenditure of tho pub lic funds for tho erection of such an institution in Eastern Oregon ltat tempted to exercise a power cxprcsily withheld by the people and an injury to the state will bo conclusively nro- Bumcu irom a threatened application of the public funds to such a purpose. "It follows that tho decree of the court below must be alllrmed and It Is so ordered." NOTEDBANDITKILLED By Texas Rangers While Re sisting Arrest. TEXAS RANCHER IN JAIL, Other Criminal Matters 'of Interest to Readers. THE BRANCH ASYLUM 'DECISION. The supreme court has rendered a square decision in the Eastern Oregon Asylum case and upholds tho consti tution prescribing that state Institu tions shall bo located at tho scat of will of tho people as expressed in the government. As a board, Pennoyer, supremo law of the land. There is Mctschan and MnTtrMn hmmiit. n, & 120 STATE STREET. this case, while it is not apparent from the face of the Information to whoru the warrant was issued or by whom it is owned at the time the suit was brought, tho undertaking and or der for a preliminary injunction and the decree appealed from, all state that It was issued to the prrsent de fendant so that the court would hardly be justified in holding that it affirm atively appears there Is a defect of parties; But, however this may be, the demurrer itself Is insufficient both In form and substance to raise tho question. The statute provides that objections apparent upon the face of the complaint other than such as go to the jurisdiction of the court and that it does not state sufficient to con stitution to constitute a cause of ac tion or suit, are waived -unless taken by demurrer (Sec. 71 nill's Ann. Laws Or.,)and that a demurrer shall be dis regarded unless it distinctly specifies the grounds of objection: Sec. 68. At common la wt a demurrerfor want necessary parties defendant was re quired to point out either by name or in some other definite way from the facts stated in the- bill those who should have been and who were not made parties to the suit so as to en able the plaintiff to obviate the ob jection by bringing them in (Strong's Eq. PI. 543; Dlas vs. Bonchaud, 10, page 455;) and this rule has not been abrogated by the, provisions of the code: 1 Rumsey's Pr., 383; l IStan mood'sPl.,75; Durham vs. Blochof Ietal., 47 Ind. 211; Dewey et al. vs. The State ex rel., 91 Ind. 173; Baker other than the scat of government has been before this court several times and it has been held t,hat a pri vate Individual cannot do so without showing some special Injury to him self (Sherman vs Bellows, 24 Or, 553) and that the saiuo rulo applies when a suit Is instituted In the name of tho state upon hisrelation: State vs Pen noyer, 20 Or 205; State ex rel. vs Lord, 28 Or. 498. But these cases are not In point in the present controversy. The one first referred to was a suit Insti tuted by n private citizen In his In dividual capacity, without bhowlmr special Injury to lilmself, and tho other was a proceeding against the board of commissioners of public buildings by a private citizen who un dertook to use the name of the 6tato without authority and was decided on the ground that it was not brought by nor against tho proper, parties. But this Is a suit by the state in its sovereign capacity as the guardian of the rights of the people, Instituted by Its own executive law officer and can, In our opinion, be maintained with out showing any special injury to the state. It is enough that the public funds are about to be applied In u manner prohibited by the constitu tion. "At common law tb$ 'attorney-gen real of England could, by Information in tho name of the crown, call upon the courts of Justice to prevent the misappropriation of fundsor property raised or held for public use, and In the same absence of statutory regula tions tho district attorney in this stato is vested with like powers. (State vs. Douglas Co. It. Co. 10 Or., 198; Savings Bank vs. United States, 19 Wall 239.) Indeed the right of the stato through Its propor alllcors to maintain such a proceeding would seem to be one of tho necessary Inci dents of sovereignty. Without It tho rights of the citizen cannot be pro tected or enforced In cases where he is unable to act for himself. In a suit by an individual he is required to shdw some special -Injury to him self, and when, as lu this case, the wrong complained of is public in its character, affecting no one citizen more than another, it Is Impossible for him to do so and for that reason he is without remedy, although he may be injured in common with tho other members of the community. In sucli cases the state has a right, by WE8B&&B63& GAIL BORDEN IEAGLE Brand ..CONDENSED KIUL. Hob No Equal SOLD EVBRVWHERB some dicta In paragraph 7 of tho opinion In the case of Stato vs. Lord, 28, Or.498,ln which tho writer tliorcof did not concur, apparently Inconlllct with this doctrine, but it was not necessary to a decision of tho case, and after more mature reflection we nre arc now all agreed that It was erroneous. It Is based upon the false premises (1) that the locntlon and construction or an usjium at some other place than tho seat of govern nient is not a misapplication of the public funds unless It appears that the burden of taxation will be increased by so doing: and (2) that the location of such an institution Is n legislative question. 'Manifestly neither of these positions ir sound. The expenditure or public money at a place prohibited by tho constitution is a mis-application thereof for the sim ple and very iatlsfactary reason that it Is against tho declared will of the people, and the location of a pub lic institution, within tho meaning of that term as used in the constitution, is not In any sense a legislative ques tion buthas been determined by tho people thoni6clvcs. A sufficient In jury, therefore, to enable tho stato In ita sovereign capacity to call upon a court of equity for relief Is shown whenever It is made to appear that public funds are about to bo applied to a use, for a purpose or at a placo prohibited by the constitution. Wo conclude, therefore, that the court has Jurisdiction and tho only remain Ing question Is whether tho act of tho legislature authorising the construc tion of an Insane asylum In Eastern Oregon Is In violation of the provis ions of the constitution. "By section one, article fourteen, of that Instrument It Is provided that the legislature shall not havo the power to establish a scat of govern ment, but that such quesons shall be submitted to and dotemincd by the people at the polls, and section three, of the samo article, declares that when the scat o' government Is so es tablished it shall 'not bo removed for the term of twonty years from tho time of such establishment, nor In any other manner than as provided lu the Hrst section of this article; pro vided, that all the public Institutions of tho state hereafter provided for by the legislative Assembly shall bo lo cated at the seat of government. Although the language of thof.ee tlun quoted Is somewhat involved, the evident Intention of the framers of tho constitution and of tho people when they adopted It was to declare that all tho public Institutions of the state thereafter provided for by the legislature should be located at the seat of government. It amounts to and Is, in effect, a constitutional loca tion of such Institutions and tho only power vested In the legislature is to determine the necessity for and the amount of money to be used In their construction and maintenance. Any attempt by that body to expend public revenue for the erection or maintenance of such an Institution elsewhere is a mere nullity and of no more force or validity than a legisla tive attempt t chango the seat of government. All such Institutions must be located at the place desig nated in the constitution, although it may now seem desirable to do other wise, until the consent of the people is obtained in the form of a constitu tional amendment. In their sovereign capacity the people have so provided and no other power can alter or change their decree. That an Insane asylum is a public inslltlon of the state with in tho meaning of the constitution Is tco clear for. argument. In view of site of the property at Union, Oregon, and its title was vested In the state. The price was $25,000. Even at the time It was bought an injunction was resting against It. Tho decision leaves tho state In possession of land It hns not paid for. TUB DECISIONS. in uuu case ueroiororc, suornian vs Bellows, known as the Soldltrs Home case, and In two other cases on tho asylum matter, tho court held that tho action was not properly brought. The court found tho question of con struing the constitution, not prop ely beforo It, and could not render a decision on tho merits of "tho matter. In tho case of Pennoyer and tho Board, and Lord and tho Board, as de fendants, upon the relation of Taylor, tho decision was also not on the merits. But when tho state brought an action In its soyerolgn right by tho Dlstrjct Attornoy in hla official capac ity, to prevent a perversion of tho public funds, tho court gained Juris diction and grants tho relief asked. It is a well known proposition of Jurisprudence that a court to tako cognizanco of a constitutional mattor, It must bo brought squarely to Issue. Under no circumstances does a court go out of its way to Interpret tho con stitution. On the other hand it com pels those who raise constitutional questions to show clearly that thcro is a constitutional question Involved. THK FINANCIAL STATUS. About $500 has been drawn on tho Desperado Killed. Denver, Nov. lO.-Fcdcral officers received a telegram saying that Mig uel ltovllle was killed near Chlldcrs, Tex.,Saturday,by a Texas ranger when resisting arrest. Revlllo was tho leader of a gang of outlaws who havo Infested Southern Colorado for years, Must Return to Germany. San Antonio.Tcx., Nov. 10. About ten years ago a young German named August Kcrman arrived in the town OC Hock Snrlnc8 and nn'mhnaofl n ranch of 2800 acres near the town. Ho claimed to be from New York. Ho was possessed of an nbundunco of money. Kcrman mado few friends during his ten years' residence on tho ranch. 'A German detective, claiming to represent, tho German government, arrested Kcrman. The latter sub mitted quietly, and said that ho would return to Germany, without extradition, no said hq was at ono time In tho postal sorvico of tho Ger man government, thut nn irregularity occurred in his department and tllat ho fled to this country In order to es cape punishment. Tho dotcctlvo re fused to make any statement of tno case. Accident to battleship. New 1'ohk, Nov. 10. Tho United States battleship Texas,. while lying at Cob dock, In the Brooklyn navy- yard had a 13-Inch hole stovo In her side, caused by breaking her dock, and sho now lies on tho bottom of tho dock with her engine-room full of water. Tho Chapman Derrick & Wrecking Company wore notified, and havo sent tho wrecking tugs William L. Chap man and Hustler and tugs W. H. Lewis and Astoria to raise tli'o sunken ship. Eastern Oregon asylum appropriation Including ono uttorney fee of $250. AH necessary expenses connected with the asylum will havo to come out of tho appropriation levied for tho asylum at Union. All has been con verted into the general fund, except tho $40,000 levied this year. What was levied in 1801 was turned back into the general fund. Tho lovy for tho Eastern Oregon asylum last January was $40,000. This will bo used In pay ment of warrants on the general fund. Tho warrantor $25,000 that was Issued for payment of tho land is out, en dorsed by the Stato Treasurer. It was Issued In tho name of Phil. Mctschan as a member of the stato board, turned over by him to Thos.Wrlght,of Union, who in turn passed it over to a Port land bank where It Is now. Tho title to the lands have passed to tho State, and are on Ule with the Secretary of State. The deed is recorded In Union county. Tho land is paid for, but not by the State, although the Stato owns tho land. Scrlouu Riot in India. Bomhay, Nov."10.Serldus rioting occurred at Shotap'ut. "Flvothousand men looted 1,500 bags of glaln. Tho (pollco fired upon tho mob, killlug four men and wounding six. A further outbreak Is feared as Shotaput is ono of tho worso famlno tracts. , Second crops of strawberries tiro In bloom in Coos county, and are prom ising, though they may be nipped. , I, Plaintiff Gets the nonsE. Hav ing heard all the testimony In tho case of Dora Bennett vs IT. T. Wright man for tho recovery of "Black Ai der" which had. been nttached by Marlon county's sheriff to satisfy u Judgment held by T. O. Shorpo va W. W. Cardwcll, original owner of tho horse, Justice IT. A. Johnson took the matter under advisement last night until 2 p. m. today. By the de cision of Justice Johnson tho plaintiff gains possession of the animal. by Id. The Whole Story Of tho great cures accomplished Hood's Sarsanatllla Is riulcklv told It purities and enriches tho blood tones tho stomach and elves strength and vigor, Disease cannot enter tho, system fortified by tho rich, red blood which cornea by taking Hood's Sarsa parllla. Hood's Pills euro nausea, Bick head ache, indigestion, biliousness. All druggists, 25c. Eastern apples aro now shipped Into Oregon, and they are being com pared and our own stock Js claimed to 1 bo tho best of the two. Highest of all in Leavening Power. Latest U. a. Gov't Report. RoYal Baking Powder asses&a ABSOLUTELY IKUFRE i fri 4t'