qualify him from serving as a juror in a retrial of the cause. If, however, such person was in court at a former trial, and heard witnesses testify concerning the vital fact at issue, upon the truth or falsity of which the verdict necessarily depended; or if he heard such facts related by interested witnesses, whose statements he believed; or if he heard the jurors at such trial discussing the merits of the case, and from what he heard formed a fixed opinion which required evidence to remove such person at a retrial of the cause is not an impartial juror, and when called as such, and objected to for actual bias, the challenge ought not to be controverted by opposing counsel or denied by a court. In State v. Saunders, 14 Or. 300 (12 Pac. 441), it is intimated that a person who had heard the testimony in any case, had read a detailed statement of it, or had been told it by some one claiming to know, was incompetent to serve as a juror. In Kumli v. Southern Pac. Co. 21 Or. 505 (28 Pac. 637), it is suggested that whether a person called as a juror can disregard an opinion he has formed depends in part upon the source of the information upon which such conclusion is based. In State v. Brown, 28 Or. 147 (41 Pac. 1042), it is argued that where a juror knows the facts involved in a cause, upon which he has formed an opinion, a challenge for actual bias ought to be sustained. State v. Morse, 35 Or. 462 (57 Pac. 631), a juror on his voir dire, having testified "that he had heard a little of the testimony on a former trial, and had heard a good deal on the outside," from which he had formed an opinion that he thought would hinder him from giving the accused a fair and impartial trial, said if he was accepted "he should certainly endeavor to try the case fairly and impartially upon the testimony of the witnesses and the law as given by the court, although he felt that his previous opinion would make it more difficult for him to do so," was held competent. In that case the "little testimony" the juryman had heard in court on the former trial may have been unimportant, or not such as necessarily determined the cause. The "great deal" he had heard on the outside was not testimony, but hearsay, and may not have been a statement of the material facts, for in speaking of the persons whom he had heard discuss

In

the matter he said he “did not know whether they were witnesses or not."

In the case at bar, though the bill of exceptions shows that objections were made to several persons called as jurors, each was excused by defendant's counsel except the last, when, having exhausted all their peremptory challenges, they were compelled to accept him. We shall call attention to the testimony of only two of such persons. The judge's certificate, appended to the bill of exceptions, does not state that the entire testimony given by the persons called as jurors is included in the transcript. That it is not so incorporated is negatived by the bill of exceptions, from which the following extract is taken: "W. C. White was examined as a juror, and, among other [things] testified as follows." Here appear what purport to be replies to preliminary interrogatories, which are omitted, followed by questions and answers, from which we summarize: This person stated on his voir dire examination that he was in court at a former trial of this cause, when Mrs. Curtis, widow of the deceased, gave her testimony, but he did not know that he heard all of it, for it was difficult for him to hear what she said; that he had heard some of the witnesses who appeared at the former trial of this action detail the testimony given by them; that from what he had heard he had formed a fixed and positive opinion, which would require a good deal of evidence to remove; that, if the defendant could produce evidence to establish his guilt or innocence, he would change his opinion, but that he believed he could give him an impartial trial on the evidence which he might hear in court. B. Terrill testified on his voir dire examination that he had talked with a good many witnesses who gave testimony at the former trial of this cause, and also with some of the jurors who returned the verdict therein; that such persons detailed to him, as nearly as they could, the facts involved; that, having confidence in what they said, he had formed a fixed opinion as to the merits of the case, which would require strong testimony to overthrow, and which, to him, prevented the parties from starting on an equal race in the trial; but that, if accepted as a juror, he could lay aside such opinion, and try the case fairly and impartially. As we remember the testimony given at

the former trial (State v. Miller, 43 Or. 325, 74 Pac. 658) by Mrs. Curtis, who heard the fatal shots fired that made her a widow, we do not believe any person could listen to her recital of the facts without forming such an opinion as to render him biased as to the merits of the case. Nor could a person hear the witnesses or the jurors tell the story of the homicide, as it was unfolded in court, without forming such an opinion as to the guilt or innocence of the defendant as to render him prejudiced in the matter.

Other alleged errors are assigned, but deeming them unimportant, the judgment is reversed, and a new trial ordered.

REVERSED.

Decided 3 July, rehearing denied 28 August, 1905.

FOUTS. HOOD RIVER.

81 Pac. 370; 1 L. R. A. (N. S.) 483.

TIME WHEN LOCAL OPTION LAW TOOK EFFECT-CONSTITUTIONALITY. 1. The local option law adopted in June, 1904 (printed in Laws 1905, pp. 41-50), providing that upon the filing of a petition of a designated kind the county court shall order an election to determine whether the sale of intoxicating liquors shall be permitted or prohibited in the political subdivisions designated in the petition, and that if the vote is against permission the prohibition shall take effect on the first day of July next succeeding, is a general act, which became a law pursuant to proclamation, and is not within the prohibition of Const. Or. Art. I, § 21, providing that no laws "shall be passed the taking effect of which shall be made to depend upon any authority, except as provided" in said constitution, though the operation of the prohibitory feature is conditioned on the vote in the subdivisions designated by the petition.

LOCAL OPTION LAW-SPECIAL ACT PUNISHING CRIMES-REGULATING PRACTICE IN COURTS OF JUSTICE.

2. The local option law adopted in Oregon by popular vote in 1904 (Laws 1905, p. 41, c. 2) is not a special or local law for the punishment of crimes and misdemeanors, or regulating the practice in courts of justice, as prohibited by Const. Or. Art. IV, § 23, subds. 2 and 3.

LOCAL AND SPECIAL LAWS AS TO SALES OF LIQUORS.

3. As Const. Or. Art. IV, § 23, does not prohibit special or local laws concerning the sale of intoxicating liquors, there seems to be no limitation on the power to legislate locally on that subject, so that the local option act adopted in 1904 (Laws 1905, pp. 41-50) is not void because it may operate in only some districts.

From Wasco: W. L. BRADSHAW, Judge.

Action by P. F. Fouts to recover money from the City of Hood River. From a judgment as prayed defendant appeals. AFFIRMED.

NOTE.-The time when initiated laws become in force and effect is determined by gubernatorial proclamation: Laws 1903, pp. 244, 249, §9. As to the date of the proclamation concerning the local option law adopted by the people on June 6, 1904, see Laws 1905, p. 50, note. REPORTER.

For appellant there was a brief and an oral argument by Mr. John McCourt, to this effect.

1. The Constitution of Oregon prohibits the putting of laws. into effect, upon the vote of the people, except upon a vote of all the people of the State in the manner pointed out by the initiative and referendum amendment to the constitution. Therefore what is known as the local option law is void, and cannot be put into effect upon the authority of a vote in a county, subdivision. of a county or a precinct: Const. Or. Art. I, § 21; Art. IV, § 1, as amended by the initiative provision.

II. Courts may examine the proceedings of constitutional conventions to ascertain the meaning of constitutional provisions: Opinion of Justices, 126 Mass. 557; Wisconsin Cent. R. Co. v. Taylor, 52 Wis. 38 (8 N. W. 833); State v. Parler, 52 S. C. 207 (23 S. E. 651); State v. Norman, 16 Utah, 457 (52 Pac. 986); Cooley, Const. Lim. (6 ed.), 75; and in like manner may resort to histories of the times with a view of ascertaining the objects and purposes of provisions under consideration: People v. Potter, 47 N. Y. 375; Maxwell v. Dow, 176 U. S. 531 (44 L. Ed. 597); Fox v. McDonald, 101 Ala. 51 (21 L. R. A. 529, 13 So. 416, 46 Am. St. Rep. 98).

III. Section 21 of Article I of our constitution was designed to prohibit the taking effect of prohibitory liquor laws upon the authority of a popular vote: Journal of the Constitutional Convention of Oregon, as published 1882, pp. 24, 27, 35, 38, 44, 52, 59, 60, 61, 66 and 77.

IV. The local option law does not take effect until it has been voted upon, and not then unless the county court makes an order putting it into effect: Local Option Law (Laws 1905), pp. 41, 43, 46, SS 3 and 10.

For respondent there was a brief and an oral argument by Mr. William H. Wilson, to this effect.

The only propositions discussed by counsel for appellant in his brief which we controvert are: 1st. That Section 21, Article I, of the Constitution of Oregon, imposes a limitation in the enactment of general laws that does not apply to state constitutions generally; and, 2d. That the local option law does not take

effect until voted upon, and not then unless the county court makes an order to that effect. We submit that these are not sound propositions of law.

On behalf of respondent we respectfully submit the following points and authorities.

1. The proper construction of Section 21 of Article I of the Constitution of Oregon is the same that is given to state constitutions generally, to the effect that legislative authority cannot be delegated: Locke, Civ. Govt. 142; Cooley, Const. Lim. 163; Arms. v. Ayers, 192 Ill. 601 (85 Am. St. Rep. 357, 58 L. R. A. 277, 61 N. E. 851); Dowling v. Lancashire Ins. Co. 92 Wis. 63 (31 L. R. A. 112, 65 N. W. 738); Bradshaw v. Lankford, 73 Md. 428 (25 Am. St. Rep. 602, 11 L. R. A. 582, 21 Atl. 66); State v. Weir, 33 Iowa, 134 (11 Am. Rep. 115); Ex parte Wall, 48 Cal. 279 (17 Am. Rep. 425); Willis v. Owen, 43 Tex. 41; Farnsworth Co. v. Lisbon, 62 Maine, 451.

2. The local option law became a law and took effect when the same was adopted by a majority of the voters at the June, 1904, election and the result thereof was ascertained and determined: Sutherland, Stat. Const. 68; Locke's Appeal, 72 Pa. St. 495; Weir v. Gram, 37 Iowa, 653; Santo v. State, 2 Iowa, 165 (63 Am. Dec. 487); Dalby v. Wolf, 14 Iowa, 229; State v. Forkner, 94 Iowa, 1 (28 Am. St. Rep. 206, 62 N. W. 683); Savage v. Commonwealth, 84 Va. 619 (5 S. E. 565); Commonwealth v. Bennett, 108 Mass. 27; Fell v. State, 42 Md. 71 (20 Am. Rep. 83); Hammond v. Haines, 25 Md. 541 (90 Am. Dec. 77); Garrett v. Aby, 47 La. Ann. 618 (17 So. 238); Anderson v. Commonwealth, 76 Ky. 485; Groesch v. State, 42 Ind. 547; Ginz v. State, 44 Ind. 218; State v. Wilcox, 42 Conn. 394; State v. Cooke, 42 Minn. 247 (7 L. R. A. 121, 44 N. W. 7); Paul v. Gloucester County, 50 N. J. Law, 585 (1 L. R. A. 86, 15 Atl. 272).

MR. CHIEF JUSTICE WOLVERTON delivered the opinion.

This is an action by P. F. Fouts to recover against the City of Hood River a proportionate amount of plaintiff's license tax for the unexpired term for which license was issued to him to engage in the occupation of liquor dealer within the city, cut