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Daily capital journal. (Salem, Or.) 1896-1899, November 10, 1896, Image 1

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VOl', .
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
Judge Hewitt's Injunction Is
vs. Hawkius 29 Wis. 473:
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.
, of St. Louis,
Our line of
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.
into buying anything lin the way of
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."
By Texas Rangers While Re
sisting Arrest.
Other Criminal Matters 'of Interest
to Readers.
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,
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
"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
Hob No Equal
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.
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.
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
'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
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
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.
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.

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