Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-08

] court from making an order prohibit
ing the sale of intoxicating liquors
In accordance with the election the
court held that the election was not
sufficient to authorize the court to
make the order,
In Roesch " Henry the rigor of
the rule laid down in the preceding
cases was somewhat modified. In that
case the only defect in the posting
Of the notices was that the sheriff
had posted only three instead Of five
notices In one precinct, but it was
made to appear to the court that If
all the votes in that precinct had been
cast against the prohibition OF the
sale Of intoxicating liquors, yet in
the whole county there would still
have been a very considerable ma
jority in favor Of prohibition, and
under those circumstances the court
sustained the election.
Like the act In question here, the
local option law requires a petition
signed by a certain percentage of
the legal voters and upon the petition
being presented in proper form the
county court issues an order for the
holding of an election. The local op-
tiOn law contains particular provisions
about the manner of giving notice of
an election in that it requires the
clerk to issue to the sheriff five no
tices for each precinct and imposes
upon the sheriff the duty of posting all
these notices in the several precincts
and further calls for a return from
both of those officers as to their do
ings in that behalf. Under the law
providing for the incorporation of
ports the county court makes the or
der for the election. 1t is required
that notices of the time of such spe-
cial election shall be posted in each
polling precinct in which such meas
ure is to be voted upon in like manner
as Is provided for in cases of general
elections. In section 1907 l.. o. L.,
it is provided that ut shall be the
duty of the county clerk, thirty days
before any general or presidential
election, and at least ten days before
any special election, to prepare print
ed notices to each judge and each
clerk of election in each precinct;
and 1t shall be the duty of the sew
eral judges and clerks to immedi-
ately post said notices in public
places in their respective precincts"
but nowhere is it provided that the
judges and clerks of the election shall
make any return to the county court
of having performed the duty of post
ing the notices.
In the case at hand 1t appears that
the clerk mailed the notices to the
election officers as provided in section
1907, supra. The only response pro-
vided by the general election laws
to be made to the notices sent out by
the clerk is found in the returns of
the election. We thus see in the mat
ter of giving and posting notices of
the election that there is quite ma
terial difference between the provis-
ions of the local option law construed
in the three cases last above men
toned and the act in question in this
case. Further, in the three local op-
tion cases above mentioned the injunc-
tion was sought before any action by
the county court in declaring the re-
suit of the election and making the
order of prohibition. In the case In
hand no action was taken by or on be-
half of the plaintiffs until long after
the county court had received the re-
turns and proclaimed the result of the
election and the establishment and |
existence of the Port of Coos Bay as
municipal corporation.
A further distinction can be drawn
between the two cases in this: That
the direct effect of the order OF the
county court in the local option cases
declaring the result of the election
and making an order of prohibition
against the sale of intoxicating
liquors would be to destroy the busi-
ness of the plaintiff and make 1t un-
lawful to engage therein, whereas be-
fore the election they were engaged
in lawful businss. In this case the
mere holding Of the election and MAX
ing proclamation thereof by order
of the county court had no direct eff
feet on any property right of the
plaintiff. The establishment of the
port does not in itself necessarily i'm
ply taxation or appropriation of plain
titfs property. They are possible
secondary results; but the ports have
other sources Of revenue in charges
for pllotage, towage, salvage, etc,
which may be applied to the payment
Of the proposed bonds.
The elements authorizing action by
the county court are different in the
two cases. In the one the county
court had before 1t in the sherlff's re-
turn, that he had failed to post no.