The Guthrie daily leader. [volume] (Guthrie, Okla.) 1893-1996, 1908-12-01


---------------------- - -------------------
tive partice "and" In the place Of the diS
Junc,iye particle or
ing Act or any portion thereof, in con-
.fict with the constitution, where II Is
provided that The right OF triai Dy lutS
man be aad remain inviohte '.nI
mat In all issues OF fact joined IN any
court ali PARTIES may waive the right go
have the same determined oY jury III
anich case tne tnuing OF me juase up
On the iacts shall nave qhe turce hhu Si-
feet OF n verdict by jury -
sald sec ion D provinces, that upon the
teturn OF such wari Ant as PROVIDED IN
rats o. jadge shall fix a lime, not less
than ten days nor more than thirty uayS
hereafter. FOR hearing Of said return,
.vnsn he shali proceed 10 hear ana "e
ternine whether or not the property SO
,e.1ed or any part thereof vas useu Ia
.dolauon OF any OF the prOYisio ~ tt ttls
act. Al such hearing any party claim
ing an interesi N any such ,pfopertss
may appear and be heard. and II upon
such hearing il shall appear that any
properly 80 seized was knowingly useu,
~ perlnitted TO De used, IN violation OF
any pl ovision OF this act, the same shan
be adjudged forfeited by the ssute, ana
,liall be delivered to the custody OF the
superintendent, to be disposed OF un-
iuch hearing II shall appear that ANY
Ioperty so seized was NOT kept Or
ised Tor unlawful purpose, or an
ltrsOn shall show that ne Is me owner
1f any furniture, fixtures or other prop,
..t~ seized under such warrant ana
tnat the same, Or any part thereof, Wer,
iniawfuily used without his knowledge
3r consent. the same shall be returned {.
rs lawful OWners.
Nowhere IN said act Is any procedure
)eescribed Tor such hearing. IN ths
Law Rep. Appeal Cases lssO-lssl'
~ the LOru Chancellor said:
III we have not in the act OF 1875
special directions as TO the mode OF en-
orcing obedience to such orders as may
le lawfully issued under it atill II those
lrders are orders made IN cauess or
ause cogniZable according to the laws
u this realm In an hcclesiastlcai
court, and II the court which made thost
rders rs nm Ecclesiastical court, tnen
( think We have a very sufficient eNpla-
lation OF the absence in the act OF 1874
II particular provisions ana dlfecuons
is to the way Ia which the orders ol
the court or the Judge under that acl
are 10 be enforced; because we nave
iere a general act OF parliament whica,
ts to all cases OF disobedience 10 al
orders OF any Ecclesiastical court II,
sauses which, according 10 the laws OF
he realm ara cognizablc In such "a
.ourt, tens you what the mode OF en-
.orcing those orders Is 10 be II was
therefore, purely and entirely unneces-
inry T. repeat particular provisions by
eference or otherwise ON that subjec
n this act OF 1874,
The presumption is that the procedure
before magistrates or justices OF the
peace, and county and district cour.s
4 was contemplated (secs. J0l5 5OlI, ollS
5i5l. Wilson'S Revised and Annotated
he usual procedure was Intended. the
| Legislature would nave so expressly de-
Jared. and II does not clearly appear
| that It was che intention OF the legisla'
ture that the regularly prescribed pro-
l cedure OF trial by jury before Justices
Of the peace, and county and district
ants. or dispensed with In sueh case ;.
/ Huston VS. Scott, "a Pac. tOklaD 6l2
Graham vs., Van Wyek. - Barb. o3l
Stale W. Rotwitt. II Mont. iicPac, 1908
| Sutherland Stat. Conat, f1n0 isd' LeWisl
The Intention Of the lawmakers
I should be diligently sought for unde'
the settled rules OF construction; but IL
after determining what such intention
| vas, Il appears that the act Is clearly
| In conflict with The organic law, IN
court should not hesitate to srlke ~ y
DOWN Il Is as much the duty OF the
court to declare invalid an uncons itu-
| tional act as it Is 10 uphold one tha'
lls in accord with the states eharte'
But before the conclusion mat the m
tention nf the act WI TO accompl 81
4 purpose contravcning the organic law
u the state is reached, Il is Wen 10 re-
member thar the members OF the legis-
iature have taken an oath 90 support
the constitution Of the state, and art
presumed to have SO Intended when the,
enact laws. and if there is any reason
able doubt as To tho meaning oi an
act every intcudmeat vs. IN favor o
that construction which will render d
valid.
Couris have nofhifs 20 DO with uss
icies The individual or personal views
of its memt ITS upon th- questions thAl
brought about the enactms mt, can moi
be permitted to affect the construction
and conclusion as 10 the validity Of "a
act or It's meaning, n law does no
meet with popuilr accord, that Is n,
taa. ~ why the arm 81 hr judiciar'
should hc iovelled against IL. Hndel
our Institutions. the power rests solely
4 such sovereignty 20 repeal or amens
iawF
The Arit win be awarded. 10 be ISSUED
only upon the further application Of
REALTORS counsel. Ia the event respond
elt falls to act. upon advice OF our con
clusionr.
An fhe iuatices CONCUR