Page:Address of Frederick V. Holman at Oregon Bar Association annual meeting.djvu/17

 In City of East Portland v. Multnomah Co., 6 Ogn. 62, Mr. Justice McArthur said (page 65):

"The paramount and primary control of the highways of a State, including the streets in cities, is vested in the Legislature."

In Multnomah County v. Sliker, 10 Ogn. 65, Mr. Chief Justice Lord said:

"The facts in this case are stipulated, and involve the identical question decided by this Court in the case of East Portland v. Multnomah County (6 Or. R. 64), and subsequently, the principle on which the decision in that case proceeded, was re-examined and reaffirmed in the case of the City of Astoria v. Clatsop County, not reported for the reason that the question presented in the two cases were identical. It will thus be seen that the subject matter of this action has already received a careful and thorough investigation from the Court, and ample opportunity has been afforded for the correction of any error into which the Court might have fallen in the original decision. It is now brought the third time before us on briefs which cite no authorities, and suggest no reasons which have not already been considered by the Court, or which show that the original case was decided contrary to principle. The matter here is the Constitutionality of a statute, and the rule is said to be almost universal that in construing statutes and the Constitution, to adhere to the doctrine of stare decisis. (Seale v. Michell, 5 Cal. 481.) Certainly Courts naturally feel reluctant to depart from a decision which has been recognized by subsequent cases, unless error is plainly shown to exist, conceding even that a different conclusion might be reached, if the question presented were an open one. We have carefully examined the reasons on which the decision in East Portland v. Multnomah County is based and, as at present advised, reaffirm it by affirming the decision in this case. So it is ordered."

Do the amendments of 1906 abolish this application of stare decisis? If so, may not the Oregon Constitution be amended by the initiative so that stare decisis will be abolished altogether? It appears to have been set aside by the Supreme Court as applied to the exercise of the powers of Eminent Domain by cities and towns.

In Portland, etc., R. R. Co. v. City of Portland, 14 Ogn. 194, Mr. Chief Justice Lord said:

The interest in the use of streets and highways, and public places, and their uses, being publici juris, the power of regulating such use is in the Legislature, as the representative of the whole people. It is a part of the political or governmental power of the State, in no way held in subordination to the municipal corporation. It has, therefore, been held in many cases that the Legislature has the power to authorize the building of a railroad on a street or