"Between courts of concurrent jurisdiction, the court first acquiring jurisdiction will retain it, and will not be interfered with by another court."

This rule is so elementary as to require no further citations of authority supporting the legal principle. The juvenile court of Multnomah county having first secured jurisdiction of the subject-matter and never having dismissed the proceedings or released the ward, the county court of Polk county, a tribunal of concurrent power, had no authority to intermeddle with the custody of the child, and its decree attempting to affect such custody is void.

1914, and was authorized to order Marion has, pursuant to a duly verified written peBowers returned to the custody of Mr. and tition setting forth the necessary facts, been Mrs. Grant as set forth in the journal entry brought before a juvenile tribunal and found hereinbefore quoted, the determination of to be in need of a guardian, who is appointthe trial court would be entitled to great ed, thereby becomes a ward of the court consideration. and is bound by its determination until the [3] The statute defines a "dependent child" | order has been set aside. 3 Pomeroy's Eq. to mean any person under the age of 18 Juris. (3d Ed.) § 1305; McGowan v. Lufburyears who, for any reason, is destitute, home-row, 82 Ga. 523, 9 S. E. 427, 14 Am. St. Rep. less, or abandoned. L. O. L. § 4406. For- 178; Lloyd v. Kirkwood, 112 Ill. 329. In a merly the circuit court of Multnomah coun- note to the case of Sharon v. Terry, 1 L. R. ty, which contained more than 100,000 inhab- A. 572, 573, it is said: itants, had original jurisdiction as a juvenile court. Id. § 4407. Such was the law when Marion Bowers was adjudged by that court to be a dependent child. By the amendment of that section the county courts of the several counties of this state now have original jurisdiction in all cases coming within the terms of the act. Gen. Laws Or. 1915, c. 147. Any reputable person, being a resident of the county and having knowledge of a child therein who appears to be dependent, may file with the clerk of the court having jurisdiction in the matter a written verified petition, setting forth the facts constituting such dependency. L. O. L. § 4409. Upon the filing of the petition a citation must be issued, requiring the person having the custody or control of the child to appear with such child at a time and place specified in the notice. Id. § 4410. When any child under the age of 18 years shall be found to be dependent or neglected, the court may make an order committing the child to the care of some reputable citizen of good moral character, and may thereafter set aside, change, or modify such order. Id. § 4414. In any case where the court awards a child to the care of any individual, according to the provisions of the juvenile law, the child shall, unless otherwise ordered, become a ward and be subject to the guardian-ship of the individual to whose care it is committed. Id. § 4415.

It is argued by defendant's counsel that, if an adjudged dependent child should be taken to another county by his guardian to be placed in a home, such ward might be imposed upon and suffer injury unless relief could immediately be granted by the juvenile court of the county in which the infant might be found. This argument is forceful, and if it were addressed to the legislative assembly an amendment of the statute, regulating the procedure in the juvenile courts, might possibly be secured. No power is lodged in the courts, in counties other than that in which the original jurisdiction was secured, to correct such supposed abuses, for the statute commands in general that in case of a decree in respect to the personal or legal condition or relation of a particular person such order is conclusive upon that subject. L. O. L. § 756. If Mr. and Mrs. Grant, who, from a transcript of the testimony before us, appear to be in every way worthy, competent, and qualified for the trust, desire the custody of the little girl whom they have cared for and kept for more than two years, they must apply therefor to the juvenile court of Multnomah county, which has exclusive jurisdiction of the subject-matter.

These provisions confer upon the county court, which first secures original jurisdiction of the matter of a dependent child, the sole power to hear and determine the question. The petitioner, Mollie Bowers, and her daughter, the ward, Marion, were before the county court of Polk county September 25, 1914, when the order was made that the child remain in the care of Mr. and Mrs. Grant. This appearance may have conferred jurisdiction of the person of the mother and The action of the circuit court in denying her daughter, but not of the subject-matter, the petition, dismissing the proceedings, and the right to dispose of the ward, which power awarding the custody of Marion Bowers to remained in the juvenile court of Multno- the defendant is erroneous, and in consemah county. Courts of that kind find homes quence thereof the judgment is reversed, for dependent children in various counties and one will be entered here restoring the of the state, and to permit another court to liberty of the ward and surrendering her interfere with a ward when duly adjudged to the petitioner, Mollie Bowers, until the to be such would create interminable dif- further order of the juvenile court of

from the south line of O avenue to the north line of C avenue by paving, and attempted to give notice thereof. An ordinance was passed, the contract let, and proceedings were taken for assessing the cost of the [Ed. Note.-For other cases, see Municipal work against the property in the district deCorporations, Cent. Dig. § 1146; Dec. Dig.clared to be benefited. The construction was 487.1

The principal question raised in this case by the petition and the return to the writ is in regard to the power of the city to make ion County; J. W. Knowles, Judge. Proceedings by the City of La Grande to the reassessment for the cost of such imassess property for public improvements. provement. The petition shows that on June From a judgment of the circuit court dismiss-22, 1909, under and by virtue of section 2, ing a writ of review, George S. Birnie and others appeal. Reversed.

art. 11, Const. Or., the city of La Grande adopted a charter, and sets forth the provisions relating to the improvement of streets and making of assessments for the cost thereof, among which is the following: By section 35 of the 1909 charter the city is empowered by paragraph 37 thereof to levy special assessments for the improvement of streets

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

"upon property which is especially benefited by any such improvement, that is contiguous to or abutting or fronting upon the highway, street, alley, lane or sidewalk to be graded, paved, planked, graveled, curbed, macadamized or otherwise, improved or beautified."

tue of the authority of the charter of 1909. Thus far it appears from the petition and the return to the writ that by the amendment to the charter of 1913 only the form of the city government was changed, and

Paragraph 9 of that section reads as fol- that the authority for making street im

lows:

provements and assessing the cost thereof "The manner in which all special assessments upon the property remained the same as for any of the purposes provided for in subdi- under the 1909 charter. No other change in visions 27, 37 and 38 of this section shall be the charter is pleaded or suggested by the made as follows. The council shall appoint three commissioners to consist of its own members, return. A municipal charter enacted by which said commissioners shall make an exam- legal voters of a city may be termed the reination of all property upon which said assess-sult of a special local election, and, unless ments are to be levied as to the valuation and expleaded, courts of record cannot take judicial notice thereof in the absence of statutory authority so to do. Mayhew v. Eugene, 56 Or. 110, 104 Pac. 727, Ann. Cas. 1912C, 33, and cases cited. We will therefore consider the city charter only in so far as pleaded and shown by the return. There is another proposed charter of La Grande which we will mention hereafter.

tent, if any, of the benefit to be derived by said
property by reason of said improvements. Said
commissioners shall then make their report in
writing to the council. After receiving said re-
port the council shall, before the levy of any
special assessment for any improvement, give
personal notice for ten days, or in the absence
of any property owner, agent or person in charge
of said property, by publication in a daily news-
paper in said city for a period of ten days to
either the owner, agent or person in charge of
said property against which said assessment is to
be made of its intention to levy said special
assessments, naming the purpose for which spe-
cial assessments are to be levied, a description of
the improvements so proposed, the boundaries of
the district to be affected or benefited by such im-
provements, the estimated cost of such improve-
ment, and designate a time when the council will
meet and consider the proposed levy and the
granting to any person feeling aggrieved, a hear-
ing before said council. After a compliance
with this subdivision the council shall be deemed
to have acquired jurisdiction to order the making
of such improvements. **
* If any assess-
ment is set aside by order of any court, the coun-
cil may cause a new one to be made in like man-
ner for the same purpose for the collection of the
amount so assessed.

[3] The petition alleges, in effect, that the commissioners of the city of La Grande had no jurisdiction or authority by virtue of the charter to make the attempted reassessment in 1914 after the improvement was made, and that the proceedings thereof were without due process of law and void, as the city officers had not given the required notice in order to obtain jurisdiction in the premises in the first instance before the work of construction was performed. It appears in the 1914 proceedings that the city recorder was directed to prepare notices to real property owners in the improvement district to

This paragraph also provides for a lien show cause why such improvement should against the property so taxed.

[2] The petition shows that at an election duly and regularly called in the city of La Grande October 1, 1913, the legal voters thereof amended the charter, changing the municipal government to the commission form, and proceeded in December of that year to elect three commissioners in conformity with the newly amended charter. No mayor was elected, but the three persons chosen have since been acting as commissioners for the city and exercising all the rights and powers formerly exercised by the council of that city under and by virtue of its charter adopted by the legal voters on June 22, 1909. The return to the writ shows the adoption of the charter of the city of La Grande on October 1, 1913, substantially as alleged in the petition. It recites that since the time of the former proceedings the city has adopted a new charter establishing the commission managerial form of government, which provides that all rights, privileges, and immunities held and enjoyed by the city, and the taking effect thereof, shall pass to and be retained and enjoyed by the municipality under the new charter, and that all assessments set aside by the court may be reassessed. All through the long record it

not be made and assessed; that the notice was prepared and served upon all but five of the parties named as property owners after the improvement was constructed.

The matter of the power of the officials of the city of La Grande to make a reassessment for the costs of improvements after the same have been constructed, when the city did not obtain jurisdiction in the first instance to levy an assessment for the cost of such improvements upon the property of the district, was decided in the case of Murray et al. v. City of La Grande, 149 Pac. 1019, which opinion was rendered since the judgment in the present case. The holding there was, in effect, that where a street improvement assessment was invalid because the notice thereof to property owners, made a jurisdictional prerequisite by the charter, was defective, no subsequent reassessment of the cost of the improvement under the provisions of the charter was valid, since the giving of notice in the terms described by the charter, which was the organic law under which the city acted, was a condition precedent to securing jurisdiction to make an improvement, and to cure the invalidity in the proceedings it was necessary that they be had de novo, with valid notice and

other ordinances. *

Amendments to any city charter may be proposed and submitted to the people by the city council, with or without an initiative petition, but the same shall be filed with the city clerk for submission not less than sixty days before the election at which they are to be voted upon, and no amendment of a city charter shall be effective until it is approved by a majority of the votes cast thereon by the people of the city or town to which it applies."

to give jurisdiction. The court also held | may ordain such ordinance without referring it that in proceedings of such a character the to the people, and in that case it shall be subcharter plainly contemplates street work to ject to referendum petition in like manner as be done in the future, and that, when the improvement is already made, it is impossible to make a reassessment "in like manner for the same purpose" as required by the reassessment clause above quoted. In the opinion Mr. Justice Burnett clearly points out the powers and privileges of the city in proceedings of this character. Following that case the proceedings for the reassessment under consideration were without authority and void.

[4] The record shows that prior to July 16, 1914, an initiative petition, signed by a large number of the legal voters of La Grande, was presented to the city recorder demanding that a new charter therewith tendered should be submitted to the legal voters of the city for their approval or rejection at an election to be held in September or October, 1914; that on July 16, 1914, at a meeting of the commissioners, two of them read the charter, and on July 29th pretended to pass an ordinance (No. 786, Series of 1914) adopting such charter for the city of La Grande, and pretended to repeal those of October 1, 1913, and June 22, 1909, but that this charter was not presented to the legal voters of the city for their approval or rejection, as provided by section 2, art. 11, of the Constitution of Oregon, and by section 3482, L. O. L.; that the charter so approved by the commissioners purported to continue in force section 35 of the charter of 1909 as to any improvements contracted for or initiated under its provisions until the final completion thereof. By article 11, § 2, of the Constitution, the legal voters of every city and town are granted power to amend their municipal charter, subject to the Constitution and criminal laws of the state of Oregon. This power of enactment or amendment was only extended to the legal voters of a municipality. The passage of an ordinance by the commissioners adopting the charter amounts to an approval or recommendation thereof only, and is not an enactment of such charter. Section 3482, L. O. L., which directs the manner of city legislation in the absence of municipal provisions therefor, provides that, when an ordinance, charter, or amendment to the charter of any city shall be proposed by initiative petition and transmitted to the city council, that body shall either ordain or reject the same as proposed within 30 days thereafter; and, if the council reject such proposed ordinance or amendment, or take no action thereon, then the same shall be submitted to the voters of the city or town at the next ensuing election. This section reads in part as follows:

"The council may ordain said ordinance or amendment and refer it to the people, or it

This section does not indicate that the ordination of a municipal charter or an amendment thereto would have the force of an enactment of the same into a law, but rather that it is in the nature of an approval or recommendation thereof, signifying that no competing amendment was sary, as further provided for in this section.

neces

[5] Neither would the Legislature have the power under the Constitution to confer such authority upon a city council or commission. See State v. Dalles City, 72 Or. 337, 143 Pac. 1127. The charter of the city of Forest Grove, in question in Haines v. City of Forest Grove, 54 Or. 443, 103 Pac. 775, was submitted to the legal voters of that city; but that case is not authority for the enactment of a city charter by a municipal council or commission. In the present instance it is therefore unnecessary to examine the provisions of the charter proposed in 1914 before it is enacted. It is only fair to say that the learned city attorney questions the validity of the attempted enactment of the charter by the commissioners.

It appearing from the return to the writ that the authority contained in the former charter for making a reassessment, which has been continued in force, was not extensive enough to sanction the reassessment in question in this case, the judgment of the lower court is reversed, and the writ sustained.

Where a manufacturer of chocolate candy containing 15/100 per cent. alcohol, sold it alcohol, but simply referred to the candy as in packages whose label made no mention of the "chocolates," such candy was an adulterated article of food within the meaning of section 21, subd. 16, of the Pure Food Law (Laws 1915, p. 565), defining the adulteration of candy, regardless of whether a food commissioner had theretofore established a standard of purity for candy as required by the act, since free alcohol is injurious and harmful to the health of partakers.

[Ed. Note.-For other cases, see Food, Cent. Dig. § 1; Dec. Dig. 5.

For other definitions, see Words and Phrases, First and Second Series, Adulterate.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 153 P.-27

2. STATUTES -CERTAINTY.

47-MISBRANDING-VALIDITY | said candy, and that the sample of the candy box wrapper attached to plaintiff's complaint Pure Food Law (Laws 1915, p. 568), § 35, is a true and correct wrapper of the boxes in subd. 3, defining misbranded foods, is not indefinite and uncertain because it cannot be determined whether it refers to food or drugs, since the language of such section, when read in connection with section 20 (page 564), is broad enough to cover both food and drugs.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 47; Dec. Dig. 47.]

3. FOOD 2-PURE FOOD LAW-CONSTRUC

TION.

The Pure Food Law (Laws 1915, p. 558) is remedial in its nature, and should be liberally construed.

[Ed. Note.-For other cases, see Food, Cent. Dig. 2; Dec. Dig. 2.]

which said candy was and is now being sold. That plaintiff has been during said period of five years, and still is, conducting a profitable business in the manufacture and sale by wholesale and retail of said candies in the state of Oregon, and that said business is the principal business and source of income of the plaintiff. That on or about the 6th day of May, 1915, the defendant, in his capacity as dairy and food commissioner of the state of Oregon, caused a chemical analysis of a sample of said candy to be made, which sample was of uniform quality of all such candies manufactured and sold by the plaintiff, and ascertained therefrom that said candy contained not in excess of 15/100 per cent. by volume of alcohol, and thereupon noti

4. FOOD 15-PURE FOOD LAW-CANDY-fied plaintiff to desist from the manufacture of ALCOHOL-"MISBRANDED.

Chocolate candy containing 15/100 per cent. alcohol, but sold in packages whose label refers to the candy simply as "chocolate," without mentioning the alcohol contained, was "misbranded" within the meaning of Pure Food Law (Laws 1915, p. 567) § 35, since alcohol is a deleterious substance.

[Ed. Note.-For other cases, see Food, Cent. Dig. 14; Dec. Dig. 15.

For other definitions, see Words and Phrases, First and Second Series, Misbrand.]

act.

such candy containing said, or any, per cent. of alcohol, and that defendant would, after the taking effect of chapter 343 of the General Laws of Oregon of 1915, seize said candy and take action against the plaintiff for violation of said That on the 28th day of May, 1915, defendant seized certain of said Centennial Chocolates manufactured by the plaintiff, and then in the possession of and offered for sale by the Railway Exchange Cigar Store, located in the Railway Exchange Building, between Third and Fourth streets, on the south side of Stark street in the city of Portland, Multnomah county, Or., and immediately notified in writing the Mult-person from whose possession said candy was taken of the seizure thereof, a copy of which notice is attached to the answer in the aboveentitled cause and made a part thereof. That unless restrained by the court, the defendant will continue the seizure of said candy manufactured by the plaintiff, wherever found in the by whomsoever kept or offered for sale, constate of Oregon for sale, or offered for sale, and taining said amount of alcohol, rum, or brandy, or any thereof, without being labeled or branded in such manner as to show the amount of brandy, rum, and alcohol, and either thereof, as provided by sections 34 and 35 of chapter 343 of the General Laws of Oregon of 1915, and will institute proceedings for the prosecution of plaintiff under the provisions of said chapter." The circuit court dismissed the suit, and the plaintiff appeals.

In Banc. Appeal from Circuit Court, nomah County; Henry E. McGinn, Judge. Action by H. R. Hoefler, doing business under the firm name and style "Hoefler's," against J. D. Mickle, as the duly elected, qualified, and acting Food and Dairy Commissioner of the State of Oregon. From a judgment for defendant, plaintiff appeals. Affirmed.

The plaintiff, a confectioner, instituted this suit against the defendant, as food and dairy commissioner of the state, to prevent the latter from seizing and confiscating some candy manufactured by the plaintiff and styled "Centennial Chocolates." Issues were formed, and the following stipulation of facts was made and filed:

F. C. Hesse, of Astoria (Norblad & Hesse, of Astoria, on the brief), for appellant. I. H. Van Winkle, Asst. Atty. Gen. (George M. Brown, Atty. Gen., on the brief), for respond

ent.

Ac

legislation involving boards and commissions, the act first provides for salaried commissioner and deputies, chemists and agents. This important purpose of the enactment having been accomplished, it takes up the subject of food, defining it thus in section 20:

"That at and during all the several times hereinafter mentioned, plaintiff was, and now is, engaged in the city of Astoria, Clatsop county, Or., in the business of manufacture and sale of candy, bonbons, ice cream, and other confectioneries under the firm name and style of 'Hoefler's.' That at and during all the several BURNETT, J. (after stating the facts as times hereinafter mentioned, defendant was and above). This litigation arises under the now is the duly elected, qualified, and acting Pure Food Law of February 26, 1915. food and dairy commissioner of the state of Ore-cording to the prevalent fashion of Oregon gon, with offices at 510 Worcester Building, Portland, Multnomah county, Or. That for more than five years past plaintiff in the prosecution of his said business, has been and now is manufacturing and selling a certain kind or brand of candy known as 'Hoefler's Centennial Chocolates,' which candy was not, at the time hereinafter specified, nor at the commencement of this suit, adulterated within the provisions of the laws of the state of Oregon, but does and at said times did contain rum, brandy, and alcohol in such proportion that the alcohol constituted and does constitute not in excess of 15/100 per cent. by volume of such candy, and the packages in which said candy is sold did not bear a statement on the label of the quantity or proportion of rum, brandy, and alcohol contained therein, nor any label or brand showing that any rum, brandy, or alcohol is contained in

"The term 'food' as used herein, shall include all articles used for food or drink, or intended to be eaten or drank by man, whether simple, mixed or compound."

The preceding section declares that:

"No person shall within this state manufacture for sale, have in his possession with the intent to sell, offer or expose for sale, or sell, any article of food which is adulterated within the meaning of this act."