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ed to it, exercises a private, proprietary func- l "On the theory that the repair and regulation tion for the benefit of its inhabitants alone, / of streets is a governmental duty, it is expressly

held that the municipality is not liable for defecand known as a ministerial duty, and also

tive streets at common law in Arkansas, Caldischarges a governmental obligation, in the ifornia, Connecticut, Maine, Massachusetts, performance of which it acts as an agent of Michigan, New Jersey, Rhode Island, South the state and for the entire public, and when

Carolina, and Vermont.” a city, incorporated village, or town is em See, also, Id. & 2623. ploying the latter power in good faith, it is The rule thus asserted, though in conflict exempt from liability for damages; but, with some judicial expression upon the subwhen performing the former function, the ject, is supported by the great weight of aurule of respondeat superior governs in re-thority. spect to an injury occasioned by the negli. The principle so adverted to is not in congence of the officers and agents of the munic-flict with the opinion on rehearing in the ipal corporation. Esberg Cigar Co. v. Port-case of Giaconi v. Astoria, 60 Or. 12, 113 land, 34 Or. 282, 55 Pac. 961, 43 L. R. A. Pac. 855, 118 Pac. 180, though the writer did 435, 75 Am. St. Rep. 651; Shipley v. Hache-not concur therein. In that case in openney, 34 Or. 303, 55 Pac. 971; Wagner v. ing a new street an embankment of earth Portland, 40 Or. 390, 60 Pac. 985, 67 Pac. slid down upon the plaintiff's land, causing 300; Pacific Paper Co. v. Portland, 68 Or. injury, and it was ruled that the city by 120, 135 Pac. 871; Blake-McFall Co. v. Port- reason of the negligence of its officers was land, 68 Or. 126, 135 Pac. 873; Coleman v. | liable for the resulting damages. The dediLa Grande, 73 Or. 521, 144 Pac. 468.

cation of streets, as evidenced by a duly reIn Dyer v. Danbury, 85 Conn. 128, 81 Atl. corded plat, and the sale of lots in accord958, 39 L. R. A. (N. S.):405, Ann. Cas. 1913A, ance therewith, does not require the imme784, 786, Mr. Justice Thayer, in distinguish- diate opening of any of the highways until ing between governmental duties enjoined in the discretion of the local authorities it upon a municipal corporation and ministerial is determined that the interests of the pubobligations performed by it, says:

lic demand such improvements should be "Tor the nonperformance or misperformance made. Elliott, Roads & Streets (3d Ed.) SS of a merely governmental duty imposed upon a 129, 570. In another section of his work city or town it is not liable in damages unless a

this author, in speaking of the liability of a right of action against it is given by statute. * o * Where, however, some special power or

municipal corporation for negligence, says: privilege out of which grow public duties, pri "Outside of the New England states and those marily for the benefit of its own citizens, is states which follow the New England rule, the granted to a municipality at its request, or doctrine is that there is a liability for a failure where with its consent some special duty not to exercise ordinary care and skill in making belonging to it under the general laws is im- | the improvement; for, once the ministerial act posed upon it, the case is different. In such is undertaken, such reasonable care and skill cases the municipality is in a sense performing must be exercised as will not only make the a private duty, and, although no liability for highway safe for passage, but will prevent indamages is imposed by statute for negligence in jury to adjoining property." Id. $ 580. the performance of such duties, the municipality is nevertheless liable for it.”

When a street has once been opened and

improved so as to be turned over to the County roads and city streets and side

state to be used by the public generally, the walks, when once constructed, are for the

cost of repairing such highway is usually benefit of all people who may have occasion

payable out of the general fund, and the muto travel or pass along or across such high

nicipality is not generally authorized to make ways, the duty to repair which is also im

a special assessment against abutting propposed upon the municipal corporation for the

erty to defray the expense incurred therefor. benefit of the entire public, and not for the

| Id. & 647. When a street is being originally sole advantage of the citizens residing in the

opened, and before it is theoretically surimmediate neighborhood specially benefited

rendered to the state, the obligation to comthereby. A distinguished author, comment

plete the highway is only ministerial, in the ing upon this legal principle, remarks:

exercise of which engagement the city is held "It cannot be justly said that the regulation

responsible in damages for the negligence of and control of highways is not a governmental matter, for it was so in the earliest years of its officers and agents on the ground that the common law, and, indeed, long before the the right of the public to the use of the street common law took form and force.” Elliott, has not attached. When, however, a street Roads & Streets (3d Ed.) § 496. "Where a public corporation,” says this text. is on

is once completed and devoted to its intend. writer in another section of the work mentioned, ed use, the duty thereafter to keep it rea. "is selected and employed as an agent of the sonably safe devolves upon the municipal cor state to perform a duty pertaining to purely | poration to see that the highway. until it is state affairs, whether it be a city or a county, it cannot be liable to private action. The reason fegany CISCON

illegally discontinued, remains in a suitable for this is not far to seek. In discharging such condition for travel. It is incumbent, therea state duty it stands in the place of the state fore, upon a city to keep its improved streets as its instrument or agent.” Id. § 538.

in reasonable repair, and in discharging that McQuillin, in his work on Municipal Cor- obligation the municipal corporation necesporations (section 2721), in discussing this sarily exercises a governmental duty for the will thus be seen that the prevailing opinion further proceedings as may be necessary not in the case of Giaconi v. Astoria, supra, does inconsistent with this opinion. not lack the support of reason or authority. In the case at bar, however, the street had

BENSON and EAKIN, JJ., took no part in been opened and improved, and the sidewalk,

the consideration of this cause. HARRIS, which necessarily constitutes a part of the

J., concurs in the result. BEAN, J., dissents. highway for the accommodation of pedes

(79 Or. 184) trians, had been put down, but was out of repair, so that the restoration thereof was a

CARSON et al. v. SCHULDERMAN, governmental duty enjoined upon the city

Corp. Com'r. for the benefit of the public in general. In

(Supreme Court of Oregon. Feb. 8, 1916.) failing to discharge that obligation the city 1. MANDAMUS 88 – FILING ARTICLES – engineer omitted the performance of a gov.


TIONS-STATUTE. ernmental duty by reason whereof the city of

L. O. L. 8 6679, provides that three or more Portland is not liable for the damages which persons desiring to incorporate themselves to resulted from the injury.

engage in any lawful business may do so in the (5) It will be remembered the court found

manner provided by the act, which provides for

the incorporation of religious, charitable, and that it was the lack of money which pre

other societies not for profit, but makes no provented the city engineer from making the vision for such associations issuing shares or necessary repairs. A text-writer, in discuss | having capital stock. - Section 6684, providing

for the payment of organization fees according ing this subject, asserts :

to the amount of capital stock, excepts corpora"The want of funds, and of power to raise I tions formed for religious or charitable purposes money to enforce contributions of labor, or to from any fee except an organization tax of $5. assess the expense of repair upon abutters, is a | Plaintiffs, the devisees of realty in trust to erect good defense to a charge of negligence for non

and maintain a free home for wayward 'girls repair, provided it is shown that all the funds

and to incorporate with a capital stock not to applicable to such use, and all means of raising

exceed the reasonable value of the property demore, have been exhausted. But want of funds

vised, were directed to subscribe to all the capiis not available as a defense to a charge of neg

tal stock, organize the corporation, and convey ligence in not erecting barriers on a dangerous

the realty to it in consideration of all the shares street, or not closing the street altogether, when of its capital stock to be held by the

en of its capital stock to be held by them in trust. necessary." Shearman & Red. Neg. (6th Ed.) 8 The corporation was empowered to borrow not 374.

more than $75,000 on its note secured on the It will be observed, from the excerpt quot- / land conveyed to it to be used in maintaining ed, that a greater degree of effort for the

the home, and was required after three years

from the testator's death to transfer all the repair of a street or sidewalk is demanded capital stock in equal parts to the different from municipal officers than is evidenced by Churches of Christ Scientist in Portland charthe finding referred to, which is insufficient tered by the Mother Church for their use, free to relieve the city engineer from liability. I

of any trust, except a suggestion to continue

the home. Held, on mandamus by the trustees [6] The failure of the city auditor to mail to compel the corporation commissioner to file to Mrs. Frederickson a notice of the defec the articles of a proposed corporation with a tive condition of the walk in front of her capital stock of $350,000 to manage and improve

the realty and to carry out the testator's plan, premises as found by the court, exonerates

that the design of the corporation was charitable her from accountability for any part of the and benevolent, authorized by L. O. L. tit. 44, damages which the plaintiff sustained. c. 5, and that the commissioner must file the ar

[7] At the trial of this cause the action. I ticles on payment of a fee of $5. by consent of counsel for the respective par

or[Ed. Note.-For other cases, see Mandamus,

Dec. Dig. Om $8.] ties, was dismissed as to the defendants Geo.

2. TRUSTS 160 - FAILURE OF TRUSTEE L. Baker, John H. Burgard, Ralph C. Clyde,

POWER OF COURT. Will H. Daly, Geo. D. Dunning, J. J. Jen- In such case, if there were no Churches of nings, Allen R. Joy, James Maguire, R. E.Christ Scientist in Portland qualified to take Menefee. Tom. N. Monks. John Montag. Wm. | the reversion of the stock as provided in the Schmeer. H. N. Wallace, Frank E. Watkins, | fail for want of a trustee.

will, the courts would not allow the trust to and F. L. Wilhelm, who at the time of the Ed. Note. For other cases, see Trusts, Cent. plaintiff's injury composed the common coun- Dig. 88 204, 207, 208; Dec. Dig. Om 160.) cil of the city of Portland, and as to A. G. 3. CHARITIES 20 — CONSTRUCTION – TRUSRushlight, who then was its mayor. This TEES. voluntary discharge necessarily releases each

In such case the reference to the Mother of these parties from any and all liability on

Church of Boston did not intend that there

ou should be any legal connection between the account of the negligence set forth in the churches in Portland and the Mother Church, complaint.

but that there should be such recognition by the The findings of fact, when tested by the Mother Church of the churches designated to

take under the will as would make it impossiprovision of the charter, do not uphold the con

ble for any seceding organization not recognized clusions of law predicated thereon, except in by the Mother Church to claim an interest in respect to Mrs. Frederickson. The judgment the bequest, and it was not necessary that such is therefore reversed, and the cause remanded re

d relation should appear in the articles of incor

poration of the Portland churches, if that fact for a new trial as to the defendant T. M.

11. was made to appear otherwise. Hurlburt, who at the time the plaintiff was [Ed. Note.-For other cases, see Charities, hurt was the city engineer, and for such | Cent. Dig. $8 18–33; Dec. Dig. 20.)

em For other cases see same topic and KXY-NUMBER in all Key-Numbered Digests and Indexes

In Banc. Original mandamus by Jessie M., ty devised; that the trustees should subCarson and others against H. J. Schulder-scribe for all the capital stock of the corman, as Corporation Commissioner of the poration, and should complete the corporaState of Oregon. Writ issued.

|tion and convey to it the devised property, This is a proceeding by mandamus to com

taking in payment therefor all the shares of pel defendant as corporation commissioner

the capital stock which should be issued to file the articles of a proposed corporation

to them jointly in one certificate to be held designated as the “E. Henry Wemme Endow

in trust for the purposes indicated. It was ment Fund." The proposed articles are as

provided that the corporation should have follows:

the right to borrow not to exceed $75,000, "Know all men by these presents that we,

and to give a note therefor to be secured Jessie M. Carson, H. A. Weis, and J. J. Cole, all upon certain tracts of the property conveyed of the city of Portland, county of Multnomah, to it, and that after securing this money it state of Oregon, have associated ourselves for

should proceed to purchase a site for a mathe purpose of forming a corporation under the laws of the state of Oregon, and to that end to

| ternity home for wayward girls and to build make and subscribe, in triplicate, the following and equip it, and use the rents, issues, and articles of incorporation: Article I. The name profits of the bequeathed property in mainassumed by this corporation, and by which it

taining it and caring and providing a home shall be known, is E. Henry Wemme Endowment Fund.' Article II. The principal office

for the inmates thereof without expense to and place of business of this corporation shall them. It was provided that three years after be in the city of Portland, county of Multnomah, the testator's death the trustees should state of Oregon. Article II. The capital stock of this corporation shall be three hundred

divide and transfer all the capital stock of and fifty thousand dollars ($350,000), divided in | the corporation in equal parts to the differto three hundred and fifty (350) shares, of the ent Churches of Christ Scientist of Portland, par value of one thousand dollars ($1,000) each. | Or.. authorized and chartered by the head Article IV. The duration of this corporation shall be perpetual. Article V. 1. The business

Church of Christ Scientist, known as the in which this corporation proposes to engage is Mother Church, for their own use and bene that of buying, owing, holding, managing, im- fit, without any charge or trust whatever reproving, mortgaging and leasing the following served to testator's estate. Then follow described real property, to wit: Lots one (1), four (4), five (5), and eight (8) in block fifty

this clause: three (53) in Couch's addition to the city of "I hope, however, this is not directory, but Portland; and also lots one (1) and four (4), merely a suggestion, that the maternity home and the south twenty (20) feet of lot five (5), constructed as herein before provided shall be in block nine (9) of Couch's addition to the city continued by said corporation, E. Henry Wemme of Portland, and the south one hundred and Endowment Fund, perpetually, and forever, but twenty (120) feet of block seventy-two (72) in I do not make this binding upon said Church of East Portland, now a part of Portland, and all Christ Scientist, or upon said E. Henry Wemme now being in the city of Portland, Multnomah Endowment Fund, a corporation, for the reacounty, state of Oregon. 2. To buy, own, bold, son that I have implicit faith and confidence in mortgage, lease, improve, and sell real estate as the Church of Christ Scientist, and believe may be necessary in carrying out the enterprise that they will be perpetual, and I realize the for the carrying out of which this corporation inability of one now living to determine what in is formed, and to lease property to third per- the future might be the greatest need and benefit sons, firms, or corporations. 3. To purchase a to suffering humanity, and therefore I have gir. suitable site for, erect, equip, maintain, and con- en absolutely and without reservation all of the duct a maternity home or lying-in hospital for stock of said corporation of E. Henry Wemme the accommodation, care, and keeping of unfor- | Endowment Fund to said Church of Christ tunate and wayward girls, without charge there- Scientist believing that they will expend the for, in the city of Portland, Multnomah county, rents, issues, and profits and all the proceeds state of Oregon, which home or hospital shall of the said E. Henry Wemme Endowment Fund be known as the White Shield, of Portland, Ore- in a manner so as to create the greatest relief gon. 4. To issue the promissory note of the for the greatest number of suffering humanity." corporation and secure the payment of the same

The plaintiffs tendered to the corporation by mortgage or pledge of any or all property belonging to the corporation, and generally to

commissioner the articles set forth in this do anything necessary, proper, or convenient in statement, together with a fee of $5, and carrying out any of the enterprises hereinbe- demanded that they be filed as the articles fore mentioned. In witness whereof we have

of a charitable corporation, and that defendhereunto set our hands and seals this 27th day of September, A. D. 1915."

ant issue a certificate of incorporation upon This corporation was formed pursuant to

said articles. Defendant took the ground the terms of the will of E. Henry Wemme,

that the articles indicated the corporation deceased, whereby he bequeathed certain

was a business corporation organized for property to the plaintiffs herein in trust for

profit, and therefore liable to pay an organithe purpose of erecting and maintaining a

zation fee provided for in section 6681, L. 0. maternity home for unfortunate, wayward

L., amounting to $60, and the estimated ligirls in the city of Portland, to be conduct

cense fee provided by section 6707 for the ed without cost to the objects of testator's

remainder of the year ending June 30, bounty. It was provided that the trustees

1916, and refused the articles or to issue cerimmediately after the death of the testator

tificate until such additional sums should be should form a corporation with perpetual | paid. Therefore plaintiffs sued out this writ. duration, to be named the "E. Henry Wemme Joseph & Haney, of Portland, for plainEndowment Fund," with a capital stock not tiffs. Geo. M. Brown, Atty. Gen., and J. A.


MCBRIDE, J. (after stating the facts as, by the Mother Church to claim an interest above). [1] Section 6679, L. O. L., provides: in the bequest. It is not necessary that such

"Whenever three or more persons shall desire relation should appear in the articles of into incorporate themselves for the purpose of en- corporation of the Portland churches if that gaging in any lawful enterprise, business, pur- fact is made to appear otherwise. We will suit, or occupation, they may do so in the manner provided in this act."

not attempt in this proceeding to determine

who shall take under the will, but merely Chapter 5 title 44, L. O. L., provides for

whether the articles of incorporation show the incorporation of religious, literary, art,

that the object of the incorporation is charicharitable, and other societies not carried

table, and not for profit. This is clearly on for the purpose of profit. This chapter

shown, and, while it was entirely proper for makes no provision for such associations is the

the commissioner to require this matter to suing shares or having capital stock. Wel he determi

be determined by judicial proceedings, an think there is no doubt of the right of the

order will be made requiring him to file the trustees to incorporate under the provisions articles and issue the certificate of incorpoof section 6684. Under the will they could

ration upon payment to him of the $5 tennot incorporate in any other manner, and,

dered. if they could not do so under such section, the trust would possibly fail altogether.

EAKIN, J., took no part in the consideraBuilding, maintaining, and carrying on an in- / tion of this case. stitution of the character mentioned is a “lawful enterprise, a business, or pursuit," irrespective of whether the parties incorpo

(79 Or. 367) rating engage in it for pleasure, profit, or

STATE v. WARE. charity. In the present instance the design (Supreme Court of Oregon. Feb. 8, 1916.) of the corporation is purely charitable and 1. CONSTITUTIONAL LAW w 206-PRIVILEGES benevolent. Its scope and articles are such


STATE. as absolutely inhibit the idea of profit from

Laws 1913, c. 278, regulating the business any source. It is true that the fact that the of loaning money or credit by persons other corporation is one having capital stock is than national banks, licensed bankers, etc., relaid down by many authorities as the test | quiring a license from the state banking board

to engage in such business, and providing that whether or not the corporation is one organ- no license shall be granted to any person not a ized for profit, but after all it is only evi- bona tide resident of the state of Oregon, or to dence of that fact, and cannot be conclusive a corporation, etc., until such corporation, etc., in a case where the articles themselves show apl

appoints a resident agent to accept service, does

| not violate Const. U. S. art. 4, 82, providing that the whole capital and income of the that the citizens of each state shall be entitled property is to be devoted to charitable uses. to all privileges and immunities of citizens in [2] Whether the Churches of Christ Scien- the several states, or Const. U. S. Amend. 14, §

1, declaring that no state shall make or entist are qualified to take the reversion of the

force any law abridging the privileges or immustock as provided in the will is a question nities of citizens of the United States, as the that does not arise here. If there are none state in the exercise of its police power and for in Portland so qualified, the courts will not the protection of small borrowers may regulate

the taking of excessive interest and confine the allow the trust to fail for want of a trustee. | privilege to residents and those subject to its

[3] It is here stipulated, however, that the process. different Churches of Christ Scientist of [Ed. Note. For other cases, see ConstitutionPortland, Or., are religious bodies or as- al Law, Cent. Dig. 88 625-648; Dec. Dig. En sociations organized and existing for the


208 – LICENSES purpose of religious and educational work 2. CONSTITUTIONAL LAW

Om 7-CLASS LEGISLATION-LOAN BUSINESS. in said city; that the articles of incorpora- Laws 1913, c. 278, making it unlawful to tion of said Church of Christ Scientist do engage in the business of making loans at more not show that said churches are charitable than 10 per cent. without first securing a liinstitutions or associations organized for

Arcense from the state banking board, and provid

| ing by section 2 that nothing therein should apcharitable work; that the articles of in- ply to the legitimate business of state and nacorporation of said churches show no legal tional banks, licensed bankers, trust companies, affiliation with the Church of Christ Scien

savings banks, building and loan associations,

I or real estate brokers. was not unconstitutional tist incorporated under the laws of the state

as discriminatory class legislation, as the classiof Massachusetts and commonly known as fication need not be scientific or logically apthe Mother Church of Boston, Mass.We propriate, and, if uniform within the class, and take it that by the reference to the Mother!

Mother not arbitrary, is within the legislative discreChurch of Boston it was not intended that

ended that

(Ed. Note. For other cases, see Constitution-

Note For ot there should be any legal connection between al Law, Cent. Dig. 88 649-677 ; Dec. Dig. Om the churches in Portland and the Mother 208; Licenses, Cent. Dig. 88 7-15, 19; Dec. Church, but that there should be such rec | Dig. Om7.] ognition by the Mother Church of the church- 13. CRIMINAL LAW Ow395-EVIDENCE OBTAINes designated to take under the will asl ED_BY SEARCHI.

In a criminal prosecution for violation of would render it impossible for some seceding the statute making it unlawful to engage in or unorthodox organization not recognized the business of making loans at more than 10

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For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

per cent. without having first obtained a license; G. E. Hamaker, of Portland, for appellant. from the state banking board, certain papers | Martin L. Pipes. of Portland (George A. and correspondence seized by the officers in defendant's rooms were admissible.

Pipes, of Portland, on the brief), amicus cu[Ed. Note.-For other cases, see Criminal

riæ. George Mowry, Deputy Dist. Atty., of Law, Cent. Dig. § 877; Dec. Dig. On 395.) Portland (Walter H. Evans, Dist. Atty., and 4. CRIMINAL LAW Om 1206_REPEAL AND RE

John A. Collier, Deputy Dist. Atty., both of ENACTMENT OF STATUTE-EFFECT.

Portland, and George M. Brown, Atty. Gen., Defendant was indicted, tried, convicted, on the brief), for the State. and sentenced for a violation of Laws 1913, c. 278. making it an offense to engage in the business of making loans at more than 10 per cento

BENSON, J. (after stating the facts as without having first obtained a license from the above). [1] The assignments of error are state banking board, and thereafter, and while numerous; the first, third, seventh, and his appeal was pending, the Legislature passed Laws 1915, c. 219, expressly repealing chapter

ninth being chiefly directed to the contention 278, and re-enacting substantially the same pro

that the act under which the prosecution is visions, but increasing the amount of the annual maintained is unconstitutional and void. license fee from $50 to $100. Held, that the This contention is first raised in the demurrepeal and re-enactment did not necessitate the dismissal of the indictment and the discharge

rer to the indictment. The statute in conof the defendant, as every element of the law troversy contains, inter alia, the following which he was charged with violating remained clause: the law, and had never at any time since its

"No license shall be granted to any such perfirst enactment, ceased to be the law.

son, firm or voluntary association unless said (Ed. Note. For other cases, see Criminal

person and the members of any such firm or Law, Cent. Dig. 88 3271-3277, 3279, 3280;

voluntary association shall be bona fide resiDec. Dig. Om 1206; Statutes, Cent. Dig. g 349.)

dents of the state of Oregon, and no license shall 5. STATUTES O 121-TITLE-CONSTITUTIONAL

be issued to any joint stock company, incorpoPROVISIONS.

rated society, or corporation unless and until Laws 1913, c. 278, entitled an act "to

such company, society or corporation shall, in regulate the business of loaning money or cred-writing and in due form, to be first approved it by persons, firms and corporations other than

by and filed with the state banking board, apnational banks, licensed bankers, trust com

point an agent, resident in the state of Oregon, panies." etc., naturally and logically connected upon whom all judicial and other process of lethe state banking board and the state examiner

gal notice directed to such company, society or with the administration of such law, and its corporation may be served," provision for the issuance of a license by the The question arises: Does this provision state banking board, etc., was therefore germane | violate the spirit of article 4. & 2. of the Conto its title. [Ed. Note.-For other cases, see · Statutes,

stitution of the United States wherein it is Cent. Dig. 88 146, 173, 174; Dec. Dig. Om 121.j provided that: Burnett and McBride, JJ., dissenting.

“The citizens of each state shall be entitled to

all privileges and immunities of citizens in the In Banc. Appeal from Circuit Court, Mult- several states" nomah County; Henry E. McGinn, Judge. -or of Amend. 14, § 1, of the same document,

E. E. Ware was convicted of the statutory wherein it declares that: offense of engaging in the business of making | “No state shall make or enforce any law which loans at an interest greater than 10 per cent.

shall abridge the privileges or immunities of

citizens of the United States." without bla ving first obtained a license from

Usury has been looked upon with disfavor the state banking board, and he appeals.

for ages, and it has been uniformly held that Affirmed.

the state may either regulate or absolutely The defendant was convicted of violating prohibit the taking of usurious interest. It the provisions of chapter 278 of the Laws of follows that no citizen has an inherent or 1913. The charging part of the indictment common right to exact the same. This being reads as follows:

true, the state has ample power to regulate "The said E. E. Ware, J. J. Wiesen, 0. 0. the taking of excessive interest and confine Grovier and J. Richards, on the 14th day of July, A. D. 1914, in the county of Multnomah

the privilege to those whose residence within and state of Oregon, then and there being, did its borders renders them subject to its prothen and there unlawfully, knowingly and will cess. State v. Catholic, 75 Or. 367, 147 Pac. fully engage in the business of making loans of ( 372; White v. Holman, 44 Or. 180. 74 Pac. money and of personal credit upon which the said defendants did then and there directly and 1933, 1 Ann. Cas. 843; Sandys v. Williams. 46 indirectly charge and receive interest, discount Or. 327, 80 Pac. 642. It is a fact of common and consideration greater than ten per cent. per knowledge that in the larger cities and towns annum without having first and theretofore ob- l there are men whose business it is to prev tained and procured license from the state banking board of the state of Oregon author- upon the necessities of the improvident and izing and permitting the said defendants to the unfortunate by lending money at exorbiengage in the said business."

tant rates of interest with the effect that in The defendant Ware was the only one ar- | many instances the borrower becomes the rested and tried. A demurrer to the indict- bond slave of the lender, if, indeed, he posment, for the reason that the facts therein sesses enough character to prevent his desstated do not constitute a crime, was over | peration from driving him into overt acts of ruled, and from the judgment of conviction crime. These lendings and borrowings are the defendant Ware appeals.

I usually so small in amount that the banking

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