Announcement.

83. Conferring right of eminent do main upon telephone and te'aph

86. To aid Oregon Historical 90ciety.

91. Amending law of engrossing and enrolling bills.

Matthew Bender, Law Publisher, lines. Albany, N. Y., announces in press for early publication a new 4th edition of the standard work "Collier on Bankruptcy." The important amendments of 1903 just enacted by congress and the many decisions handed down by the courts since the 3rd edition was issued in 1900, makes the 4th edition at this time imperative.

96. To amend section 3796, Code, regulating practice of medicine.

97. To prevent peddlers selling goods without license.

99. To prohibit fish wheels in Ne canicum river.

102. Providing for rebuilding of public buildings injured or destroyed by fire.

112. To amend section 227, Code, designating what articles shall be exempt from execution.

116. Authorizing county courts appropriate money for advertising 120. To divide the state into sem torial and representative districts. 121. Providing for relocation county seats.

123. To amend section 1968, Code, relative to Sunday closing.

126. To submit constitutionai

37. Providing for eremation soci- amendment relating to State Printer. eties. 137. Amending act regulating of liquors.

47. Amending section 3740, Code regulating mutual insurance companies.

51. Providing or transporting insane convicts to asylum.

58. Requiring school boards to furnish transportation to pupils in cer tain cases.

133. To prohibit stealing ridem om railroads,

152. To provide a great seal of Ow

gon.

154. Providing for selection of indemnity school lands and sale. 158. To provide for license

59. Providing for sentralization of plumbers, schools.

159. To fix traveling expensen af

64. To create irreducible school superintendent of schools, Jackson fund for Douglas county.

70. Requiring Governor to issue proclamation for special election when referendum is demanded.

74. Regulating practice of veterih ary medicine and surgery.

county.

162. To provide for transfer of resords from Douglas to Lane county. 166. Regulating employment child labor.

169. To provide for manner of or

79. Amending act authorizing em- ganization of corporations.

ployment of convict labor.

173. To amend section 5182 of

81. Appropriating $20,000 to Expe- Code, relative to incorporation of sorimental Station.

cieties.

(To Be Continued.)

VOL. I.

SALEM, OREGON, MAY, 1903.

No. 5

OREGON LAW SCHOOL JOURNAL July 6th and to close on September

LADY LAW STUDENTS.

We are often asked the question, whether or not we think that ladies can read law with the same compreOur answer

We have had the pleasseveral ladies read law

ence has been that they were always equal to the brightest gentlemen students in their classes. Our experience is that ladies become much interested and attached to the study of law.

IS THE "INITIATIVE AND REFER

SCHOOLS. Many of the leading Eastern Law Schools hold summer sessions for the benefit of school teachers and other persons who are so employed during hension as gentlemen. the winter that they can not conven- is that we do. iently attend the regular sessions. ure of having These summer sessions are becoming under us and our invariable experiquite popular and are well attended, as it puts it within the reach of all to acquire a knowledge of law, which is now beginning to be considered a necessary part of a liberal education. It has been suggested to us quite frequently by teachers and others that they woud like to take a course of law ENDUM AMENDMENT" IN CONif they could find the time, and that if FLICT WITH THE CONSTITUa course of law lectures could be deTION OF THE UNITED STATES? livered at Newport or some other Summer resort beginning soon after The Central Law Journal of March the Fourth of July and ending early 27, 1903, contains an article written in September that many would avail by Hon. Thos. A. Sherwood, who was themselves of the opportunity of com- a member of the Supreme Court of bining education with their vacation. the State of Missouri for more than We have concluded to offer to de- thirty years. In this article the liver a course of law lectures to the learned Judge contends that the proteachers and others who desire such posed amendment to the Constitution a course at Newport or such other of Missouri and the one adopted by place as they may decide upon pro- South Dakota and Oregon, known as vided a class of fifty or more would the "initiative and referendum take the course. The course to begin amendment," is in conflict with sec

tion 4, article 4 of the Constitution power can not be halved, quartered, of the United States, which reads as nor in any other way subdivided. A follows: representative democracy can not be "The United States shall guarantee crossed with an 'absolute' democracy, to every state in this Union a repub- and still the hybrid resultant from lican form of government, and shall such copulative conjunction prove to protect each of them against inva- be, and constitute, 'a government resion; and upon application of the publication in form.' Clay and iron legislature, or executive (when the can not in such cases be welded tolegislature cannot be convened), gether any more than they could in against domestic violence." the feet of the image which Daniel saw in his vision."

We believe that the learned Judge's construction of this clause of the Constitution is not in harmony with

The learned Judge contends that our government is a representative one; that the representatives of the people are the only law making power in harmony with our Constitution, its spirit, nor with the views enterand that if the power to control their tained by its framers. representatives is placed in the hands We find that Mr. Edmund Ranof the people it would be unconstitu- doph, a delegate from Virginia, is the tional. We quote the following from author of this clause of the Constituhis article, which we think clearly tion. That he laid before the convendefines his position, viz.: "I am tion a plan for a constitution, and of unable to reach any other conclusion, which paragraph eleven read: but that the amendement can not "Resolved, That a republican govwithstand the test and charge that it ernment, and the territory of each attempts to substitute for a 'repub- state (except in the instance of a lican form of government,' something voluntary junction of government which does not come up to the stand- and territory,) ought to be guaranard of such a form of government as tied by the United States to each understood at the time of the adop state." June 19th it was amended so tion of the federal constitution, a as to read as follows: contemporary construction, which "Resolved, That a republican conhas never been departed from, but stitution, and its existing laws, which has received the express sanc- cught to be guarantied to each state tion of the Supreme Court of the by the United States." It was again United States, as 'unmistakable evi- amended on July 26th to read as foldence of what was a government re- lows: publican in form within the meaning of that term as employed in the Constitution.' Nor do I believe that the conclusion just announced is at all affected or in any manner impaired by reason of the fact that the proposed amendment allows the general as follows: assembly to retain certain shreds "The United States shall guaranty and patches of legislative power, to to each state a republican form of pass certain perfunctory laws relat- government; and shall protect each ing to appropriations, etc. A legisla- state against foreign invasions; and tive body so shorn of its customary on the application of its legislature, and constitutional functions can not against domestic violence." Again, be longer regarded as the represen- on August 30th, it was amended to tative of the people. The legislative read, "The United States shall guar

"Resolved, That a republican form of government shall be guarantied to each state; and that each state shall be protected against foreign and domestic violence." It was again amended on August 6th so as to read

anty to each state a republican form was a considerable number who did of government; and shall protect not openly avow it, who were, by each state against invasions; and on myself and many others of the conthe application of its legislature or vention, considered as being in realexecutive, against domestic vio- ity favorers of that sentiment, and, lence." Again, it was amended on acting upon those principles, covertly September 12th so as to read as fol- endeavoring to carry into effect what lows: "The United States shall guar- they well knew openly and avowedly anty to every state in this Union a could not be accomplished. The secrepublican form of government, and ond party was not for the abolition shall protect each against invasion, of the state governments, nor for the and, on application of the legislature introduction of a monarchical governor executive, against domestic violence." And on September 15th it was amended to the form that it now appears in the Constitution.

ment under any form; but they wished to establish such a system as could give their own states undue power and influence, in government, We agree with the learned Judge over other states. A third party was that this clause should receive a what I considered truly federal and construction contemporaneous with republican. This party was nearly its enactment. What did the framers equal in number with the other two." of this clause intend to * guard * * "This party, sir, was for against? Did they fear that the peo- proceeding upon terms of federal ple might some time find a practica- equality; they were for taking our ble way of enacting their own laws, present federal system as the basis or did they fear that certain parties of their proceedings, and, as far as might some time get in control and experience had shown us that there erect an aristocratic or monarchical were defects to remedy those deform of government? If they feared fects; as

far, as experience had

the latter and not the former, then shown that other powers were neceswhere the reason of a rule ceases, sary to the federal government, to "the law itself ought likewise to give those powers. * * * "But cease with it." sir, the favors of MONARCHY, and

The Attorney-General of Maryland, those who wished the total abolition Luther Martins, who was a delegate of state governments, well knowing from that state, made to the legisla- that a government founded on truly tive assembly of that state, on Jan- federal principles, the bases of which uary 27, 1788, a report of the pro- were the thirteen state governments ceedings of the framers of the Con- preserved in full force and energy, stitution. We copy from said report would be destructive of their views; the following: and knowing they were too weak in

"It was found there were among numbers to openly bring forward us three parties of very different their system, conscious, also, that the sentiments and views: One party, people of America would reject it if whose object and wish it was to abol- proposed to them, joined their inish and annihilate all state govern- terest with that party who wished a ments, and to bring forward one gen- system giving particular states the eral government over this extensive power and influence over the others, continent, of a MONARCHICAL na- procuring, in return, mutual sacriture, under certain restrictions and fices from them, in giving the governlimitations. Those who avowed this ment great and undefined powers as sentiment were, it is true, but few; to its legislative and executive; well yet it is equally true, sir, that there knowing that, by departing from a

1

federal system, they paved the way been found less adapted to a federal for their favorite object, the destruc- coalition of any sort, than those of a tion of the state governments, and kindred nature. 'As the confederate the introduction of MONARCY." republic of Germany,' says MonMr. Randolph, the author of this tesquieu, 'consists of free cities, and clause, never, to our knowledge, dis- petty states, subject to different cussed this clause or gave his rea- princes, experience shows us, that it sons for its enactment. But Mr. is more imperfect than that of HolMadison, who was also a delegate land and Switzerland.' Greece was from Virginia, and who probably undone,' he adds, 'as soon as the king acted in conjunction with his asso- of Macedon obtained a seat among ciate in framing it, did publish in the Aphyctiones.' In the latter case, the Federalist of January 25, 1788, a no doubt, the disproportionate force, construction of this clause. This as well as the MONARCHICAL form construction was given by him about of the new confederate, had its share three months after the adjournment of influence on the events. of the convention, and it has never "It may possibly be asked, what been questioned. Judge Story re- need there could be of such a pregarded the construction given by Mr. caution, and whether it may not beMadison of such unquestionable au- come a pretext for alterations in thority that he copied it into and the state governments, without the made it part of his great work, concurrence of the states themselves. Story on the Constitution. The con- These questions admit of ready anstruction of Mr. Madison of this sec- swers. If the interposition of the tion is as follows: general government should not be "6. "To guaranty to every state in needed, the provisions in such an the Union a republican form of gov- event will be a harmless superfluity ment; to protect each of them only in the constitution. But who against invasion; and, on application can say, what experiments may be of the legislature or the executive, produced by the caprice of particular when the legislature can not be con- states, by the ambition of enterprisvened against domestic violence.' In ing leaders, or the intrigues and ina confederacy founded on republican fluence of foreign powers? To the principles, and composed of republi- second question it may be ancan members, the superintending swered, that if the general governgovernment ought clearly to possess ment should interpose by virtue of authority to defend the system this constitutional authority, it will against ARISTOCRATIC or MON- be of course bound to pursue the auARCHICAL innovations. The more thority. But the authority extends intimate the nature of such an union no further than to a guaranty of a may be, the greater interest have the republican form of government, members in the political institutions which supposes a pre-existing governof each other; and the greater right ment of the form which is to be guarto insist that the forms of govern- anteed. As long, therefore, as the ment under which the compact was existing republican forms are conentered into, should be substantially tinued by the states, they are guaranmaintained. teed by the federal constitution.

"But a right implies a remedy; and Whenever the states may choose to where else could the remedy be de- substitute other republican forms, posited, than where it is deposited by they have a right to do so, and to the Constitution? Governments of claim the federal guaranty for the dissimilar principles and forms have latter. THE ONLY RESTRICTION