April 7, 1905

CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

Will the hon. gentleman mention where the leader of the opposition said the constitution would apply automatically ?

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Mr L. G.@

McCarthy. I have the impression that he made the statement.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

When that statement was made in the House on a previous occasion,

I heard the leader of the opposition deny it and the hon. gentleman who made the statement had to take it back. If the hon. gentleman knows where that statement is contained in the speech of the leader of the opposition, well and good, but if not he should not make the observation.

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Mr L. G.@

McCarthy. I have no desire to misrepresent anybody but I have not heard the denial of the leader of the opposition. If the leader of the opposition did not make the statement, then I am not able to arrive at a conclusion as to what his speech meant, because he did say : let the constitution take its course.

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Mr L. G.@

McCarthy. And he did argue that the British North America Act applied ipso facto to these provinces, whether you legislate here that it should do so or not.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

I am not able to contradict the assertion that the leader of the opposition did argue that the British North America Act would apply ipso facto, but I heard the leader of the opposition declare that he did not state that it would apply automatically.

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Mr L. G.@

McCarthy. I do not wish to get into an acrimonious controversy on that point with my hon. friend.

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Mr L. G.@

McCarthy. The leader of the opposition may not have used the word ' automatically,' but will the hon. gentleman (Mr. Lennox) not admit that if the leader of the opposition declared the British North America Act would apply ipso facto to these provinces, then, it must apply automatically ? The hon. gentleman (Mr. Lennox! is, I understand going to follow me, and I leave that nut with him to crack. The leader of the opposition made a four hour speech in which he argued along the lines that the British North America Act would apply to these new provinces ipso facto or in other words ' automatically ' and I ask any hon. gentleman in this House whether it is not a fact that the leader of the opposi-

tion made no declaration of policy in the course of his whole speech. His words were :

I argue not for separate schools: I argue not against separate schools: let the constitution take its course.

Sir, as I conceive the responsibility which rests upon the leader of the Conservative party, owing to the declaration which Sir John Thompson made in 1894, the leader of the opposition in arguing thus did not discharge his duty. And as to this argument of the leader of the opposition I differ just as strongly with it, as I am opposed to the contention of the Prime Minister that the constitution required him to pass this legislation. I quite conceive that the declaration of the Prime Minister was based upon, not only the legal obligation, but upon the moral obligation as well, yet even so I cannot agree with him. I venture respectfully to say, that the conclusion that one must come to is, that if we are to dispose of this question properly and to accept our responsibilities, in the true spirit, there should be a declaration from both parties as to their policy on this question. There should be a declaration as to whether you are prepared to say : As a matter of policy, as a matter of fairness, as a matter of justice, these provinces should be deprived of the exclusive right to manage their own educational system, or, if you are not prepared to say that or to controvert it, then, you are not discharging the responsibilities which rest upon you. It is very easy for the leader of the opposition to say : Let the constitution take its course. That standard is broad enough to cover every member of this House. I hope there are none here who are not prepared to abide by the law and the constitution, but at all events the Conservative party in this country cannot get united under that banner, and cannot subscribe to the device written on it. We have heard from three or four of the gentlemen opposite that they are not prepared to come under that standard. The hon. member for Beauharnois (Mr. Bergeron), the hon. member for Jacques Cartier (Mr. Monk), two of the Conservative leaders from the province of Quebec, have told us that they are going to support the government on this issue and that they will not subscribe to the splendid device : let the constitution take its course. Far be it from me to suggest that these gentlemen are not loyal ; I would rather say, that it makes one hesitate as to whether that device so applied is not a sham. Is it a device that conveys a meaning which is hidden, or is it written so that the leader of the opposition and his friends may seek shelter under it, and so that they may not have to declare their policy upon this question, but rest content with saying, in the words of their leader ;

Mr. l. g. McCarthy.

I argue not for separate schools ; I argue not against separate schools.

I have great respect for the leader of the opposition and especially have I respect for his legal opinion.

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CON

Arthur Cyril Boyce

Conservative (1867-1942)

Mr. BOYCE.

I am glad the hon. gentleman has respect for the Conservative leader.

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Mr L. G.@

McCarthy. I am sorry that the hon. gentleman (Mr. Boyce) thinks himself so important as to imagine that we are very much concerned as to whether he is glad or not, notwithstanding the gratuitous kindness of the hon. gentleman fMr. Boyce) I repeat that I have a great respect for the legal opinions of the leader of the opposition. But, in the whole course of his four hours speech, I failed to find that the leader of the opposition expressed a legal opinion as to what would be the effect in this case of letting the constitution take its course. After the leader of the opposition, we had a very eloquent speech from an old champion and who, notwithstanding that he is an old champion, was playing a new role. After twenty years-in this House the member for North Toronto (Mr. Foster) branches out upon a new line which is diametrically opposed to his past record. The hon. gentleman (Mr. Foster), I do not say it offensively, absolutely swallowed every principle he once cherished upon this question. Speakiug in Toronto recently at McMaster University, he said :

Sterling integrity is the third quality that an aspirant for political honours should carry with him ; it did not pay to be dishonest ; your sins will soon find you out ; in other words the public will get on to you.

Now, Sir, this is the language of the hon. gentleman (Mr. Foster) who in the years between 1882 and 1896 supported the Jesuits Estate Bill-a Bill which recognized if any Bill ever did, the Papal power in this country, and which conveyed over $1,000,000 to be disposed of under the dictation of the Papal power. The hon. gentleman (Mr. Foster), also supported the official use of the dual language in the Northwest Territories, and he endeavoured to coerce Manitoba into accepting separate schools. He also refused in 1894 to strike out this very 'clause, which is the cause of all the difficulty, and he got behind Sir John Thompson when he said, in 1894 :

The reasons for passing that separate school legislation in 1875 are as good to-day as they were then.

Is that a declaration of principle ? Is that not a record that ought to bind any public man, whether for his good or ill in public life ?

Then, Sir, I call your attention to this fact, that this hon. gentleman, who made that speech yesterday, could not abide Dal-

ton McCarthy in the ranks of the Conservative party. The hon. gentleman, was the Finance Minister under Sir John Thompson when Dalton McCarthy was driven out of their ranks because he dared to express independent views with reference to the French language in the Territories, and separate schools in Manitoba and the Northwest. There ought to be some regard for consistency, for what has gone before. The hon. gentleman has talked about the consistency of other men on one side or the other. I think he had better begin at home to make himself consistent before he criticises anybody else in that regard. Now, the hon. gentleman made a speech in 1896, which was an admirable speech, and I desire to place on record some of the remarks he then made, because they are important :

Sir, the question whether separate schools should, or should not, be established is one which might well have been debated in 1863 when that system was adopted for the province of Ontario ; it is one which might well have been debated upon principle in 1867 and 1870 when these schools were being perpetuated under the Confederation Acts. But it is not a principle which is at stake to-day in the least degree ; and, for my own part, I believe that I have no right to take my preference on that principle into consideration in the least on this occasion, but that I am now called upon to deal -with the question of a clause of the constitution, and a case which arises out of it, in which that principle was settled once and for all in regard to the minority's right by the fathers of confederation and embodied in the constitution itself.

That has reference to Manitoba, which was not in the confederation at that time, but which entered afterwards :

Let us prove ourselves now, iu the thirtieth year of our existence, as in the stress of our natal days, a people fit for empire, and worthy to rank amongst the best and greatest of nations.

These, Mr. Speaker, are the words of the hon. member for North Toronto. He was here in 1896, after the election, and after the government of which he had been a member was defeated. The hon. member for Beauharnois (Mr. Bergeron) stated last night that Sir Charles Tupper, the then leader of that party, at that time In opposition, with the hon. member North Toronto sitting at his side, declared that he was still prepared to pass a remedial Bill, and called on this government to pass-one. The Hon. George Eulas Foster sat at his side and endorsed that declaration, so that he had not then experienced a change of heart, and, so far as that parliament was concerned, I suppose he was bound by those speeches. Now, what does the hon. gentleman say in 1905 ? Here are his words :

I regret in no single jot or tittle my act in 1896. Under similar circumstances, I would do the same thing, but I do not at all say that I will ever do the same thing under the circumstances that may arise after this. Why ? Because there is a power which after all is mightier than the constitution. We invoked the constitution in 1896. We tried to give it its full force in a clear case and we were prevented by the leader of a great party. After we were prevented, that leader and his party went to the people in 1896. 1900 and 1904, and the people declared that they did not want remedial legislation. In the interests of the 41 per cent which has been talked about in this House, in the interests of the province of Que-bc which was specially interested, we on this side tried to get for the minority their rights in the only way we possibly could under the constitution. We were prevented from doing it by the Liberal party, and during three successive elections the Liberal party have endorsed the policy ; we want no hands laid on any province even though it deprives the minority of that province of the rights guaranteed it under the constitution. And I make bold to say that as long as grass grows and water runs, I do not feel disposed to go against that will three times expressed of the people of this country.

Mr. Speaker, the bon. member for North Toronto asked the bon. member for Ottawa (Mr. Belcourt) to withdraw the statement when he said that the hon. gentleman had changed his views because it did not pay. I am sorry that the hon. member for North Toronto is not here, because I would like to ask him two questions. He says that on three successive occasions the Conservative party endeavoured to sustain remedial legislation, that in 1896 they were defeated, that in 1900 they were defeated, and that in 1904 they were defeated. I do not know anything about the hon. gentleman's election of 1900, but I will ask him to say whether in the constituency of North Toronto in 1904 he ran on the coercion plat-Mr. l. g. McCarthy.

form that he occupied in 1896. Does he say that he asked the electors of North Toronto to support his coercion policy of 1896 ? He dare not make such a statement. It is a mere method which he takes to crawl out of the principles he then enunciated. I do'not know what the hon. gentleman may hope for, but I do not think the public will be blind to what he has said. In one of his speeches the hon. gentleman remarked : ' You have to be honest or the public will get on to you.' Well, he must think that they are a pretty blind public if they do not get on to him on this question.

I do not believe-and I am a constituent of the hon. gentleman, I live iu North Toronto-that North Toronto will think the better of him for what he has done. The people of that constituency may feel that on their altar he is prepared ta sacrifice all his past principles and all his past record, but whether North Toronto will feel that by that sacrifice they have been compensated for providing him with a haven of rest after his wanderings in this cold, cold political world! for four years, I leave them to say, as possibly they may have another chance to say. Probably It has been evident from the way I have discussed this (question that there is to-day a certain feeling of triumph in my breast for having lived to see the hon. member for North Toronto (Mr. Foster) and the colleagues who were here with him prior to 1896, who denounced Dalton McCarthy for expressing these views, to-day standing up enunciating and supporting them. There is but this one question left: On the language question, the views of Mr. Dalton McCarthy have be&i adopted, and so have his views on the school question in Manitoba. We have just this one question left, and if we do not prevail to-day we have the pleasure of knowing that those who most loudly denounced him are now enunciating the same views as he enunciated. I make no apology for speaking thus in regard to the hon. member for North Toronto. I believe I am justified in doing so, and I say further that so far as this speech discloses hypocrisy and apostasy, it can do no harm. I had expected to see the hon. member for East Grey (Mr. Sproule) at the conclusion of the speeeh of the hon. member for North Toronto (Mr. Foster) rise and congratulate him and accept him as an acquisition. He did not do it, although he was kind enough to do that when I pronounced myself. I did see, or I imagined I saw, rather a smile of satisfaction flit across the face of that hon. gentleman (Mr. Sproule). He went through it in 1896, he was jeered at, he was sneered at, he was almost read out of his party because he dared to enunciate these same views, and he was silently able to look at the member for North Toronto (Mr. Foster), squirming in his endeavor to rid himself

from his part and I could almost imagine I heard him thump the gavel upon the desk and tell that hon. gentleman to come to heel as he had meekly done. Such is the situation that is presented to this country today. I do not think that those who feel as I do upon this question have much to hope for when they rely upon the leaders of the respective political parties. I say this sincerely, and I do not say it offensively: it seems to have been the policy of both parties ; it is therefore necessary for us in these days when there is so much inflammatory matter about to fully realize and appreciate these things. It is not fair, not right, to consider them without looking from every point of view. I have no hesitation in bringing these view's before the attention of the House. I have done it'because the leader of the opposition insinuated that Mr. Dalton McCarthy was ' established,' I think he put it, by the Prime Minister in Ontario.

I have shown that Mr. Dalton McCarthy held these views long before 1890. I did not require to show you, at all events, I will not endeavour to do so, for I think that this country is now7 well satisfied, that the convictions of Mr. Dalton McCarthy then were honest convictions, and that the insinuations of the hon. member for Beau-harnois (Mr. Bergeron) that he acted out of pique or disappointment because he was not made Minister of Justice, does not require refuting in Ontario, nor do I believe, in the whole broad Dominion of Canada. Prom what I have said, it seems clear that we must approach this question with a knowledge of what has gone before. I announced myself at. the outset when I spoke on the first possible occasion as unalterably opposed to the educational clauses in the Bill, and I will go further and say that I am unalterably opposed to this parliament legislating in any restrictive way in regard to the matter of education as against these provinces which are about to be formed. I am prepared to go further than that, and I think I can demonstrate that it is necessary to put a clause in this Bill stating that fact; otherwise you will find that separate schools will be there whether you will or not. This is why I argue that there must be a definite announcement of policy. Now, Sir, many views have been propounded in reference to this. The Prime Minister has made it perfectly plain that as a matter of policy and as a matter of law, he thinks that this legislation is justified. The leader of the opposition (Mr. R. L. Borden), I repeat again, has not said anything about the question of policy; he does not argue for or against separate schools. He says : Let the constitution

take its course.

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

The hon. gentleman has said that a great many times. I do not know if it is significant or not

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IND

Leighton Goldie McCarthy

Independent

Mr. L. G. MCCARTHY.

I understand the hon. member is going to reply. I can obviate that

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CON

Haughton Lennox

Conservative (1867-1942)

Mr. LENNOX.

It has been repeated a good many times that the leader of the opposition said ' Let the constitution take its course.' I do not recall any such expression being used by the leader of the opposition.

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IND

Leighton Goldie McCarthy

Independent

Mr. L. G. MCCARTHY.

I may have misconceived the leader of the opposition, but I understood that to be his whole argument. He stood upon the rock of the constitution also. The Prime Minister also stood upon that rock, and my difficulty is that I cannot find room on the Prime Minister's rock or the leader of the opposition's rock, or the rock on which the hon. member for Jacques Cartier (Mr. Monk) stood. Three different constitutional views were expressed by these three gentlemen. In my opinion, we have plenary power to deal with this matter as we see fit, and according to the expediency and the justice of the case. In this regard, I agree with the exMinister of the Interior (Mr. Sifton), and I also invoke the declaration of Sir John Thompson in support of that view. Attorney General and great lawyer as he was, he pronounced his opinion to be that at this time we would be free to do as we thought expedient, and best. This, Sir, is my opinion, and I am prepared to stand by it. The power under which we are proceeding is the British North America Act of 1871, which is commonly known as the doubt-removing Act. That Act enacted that

The parliament of Canada may from time to time establish new provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such province, and for the passing of laws for the peace, order, and good government of such province, and for its representation in the said parliament.

There are no restricting words there. We are told we may give them practically a free charter in such terms and on such conditions as we think fit. I cite also the opinion of Mr. Dalton McCarthy, expressed, it is true, In an off-hand way in the debate in 1891. I wish hon. gentlemen to understand in this connection that in drawing an Act of parliament it is generally expedient to follow some precedent and form. As Mr. Dalton McCarthy said, the natural precedent and form to be followed is in so far as practicable the terms of the British North America Act. But he went further and said that in fairness and in justice to these new provinces you should do for them what you did for the others. Not only do I invoke those whom I have cited but I invoke the Prime Minister of the Northwest Territories.

I invoke the Manitoba Act ; I invoke the Prince Edward Island resolution ; I invoke the British Columbia resolution. The lion. Prime Minister of the Northwest Territories prepared a draft Act in 1903, clause 27 of which reads as follows. In the clause the name of the province is left blank, but I will fill it up with the name ' Alberta ' :

On and after the said first day of January, 1903, the provisions of the British North America Act, 1867, except those parts thereof which are in terms made or by reasonable intendment may be held to be, specially applicable to or to affect only one or more but not the whole of the provinces under that Act composing the Dominion, and except so far as the same may be varied by this Act, shall be applicable to the province of Alberta in the same way and to the same extent as they apply to the several provinces of Canada and as if the province of Alberta had been one of the provinces originally united by the said Act.

Then be adds this note :

This is the provision adopted at confederation and on which all the provinces have since joined the union.

I submit to you, Mr. Speaker, and to the bon. members of this House that the last-three lines of that clause do away with all argument as to the question of ' territory ' or 'province,' and all question as to the date of the admission to the union. If the province of Alberta had been a province which had been originally united with confederation in 1867, is there any hon. gentleman in this House who will say that the provision of section 93 of the British North America Act would not apply ? I cannot conceive of any answer to the argument, that if you apply this draft clause to these provinces. you apply to them section 93 of the British North America Act, unless, in some other part of the enactment, you specifically take it away. That is my argument. I say that if you give them that clause which, in all fairness and justice, you must, following the precedent of Manitoba, Prince Edward Island and British Columbia, you do away with any argument as to whether it was a province or a territory, and also with any argument about the date of admission to the union. Is there anybody who will say that they have not now by law these rights and privileges ? Admit these two points, and you admit the whole of my argument-the conclusion seems to me to be absolutely inevitable. But what I say further is that you have a little phrase in that clause that does protect you, if you admit the first part of my argument, which is that we have plenary power, as we have, 1 think, under the British North America Act of 1871, that phrase says ' as varied by this Act ' ; and you must vary this Act if you want to get away front section 93 of the British North America Act of 1867. I say, and say it without fear, 'without antagonism to any hon. gentleman in this House, without any desire to raise a sectarian cry or to foment Mr. l. g. McCarthy.

religious struggles, I honestly believe that if you have one national school system it is in the best interest of the country. I would be disposed to recognize all conscientious beliefs. But coming to this question as I do, I cannot reach any conclusion but that it is best that there should be one school system. Therefore, I hold that parliament should vary by this Act the application to these provinces of the British North America Act. And I am prepared to support a clause to that effect. I regret that the leader of the opposition (Mr. It. L. Borden) is not present that I might ask if he is prepared to support, or whether he intends to propose, or will propose, as a matter of policy, the inclusion in this Bill a little clause to this effect :

The province of. Alberta shall, unconditionally, have the exclusive right to legislate in regard to matters of education.

There is a straight issue of policy. The Prime Minister has announced his policy that he believes in separate schools and that the minority has rights which should be protected. The leader of the opposition has yet to make an announcement on that point. He declares that he does not argue for separate schools or against them. But I think we are entitled to an announcement by him on the question of policy. Now, I cannot see why there should be any inflammatory disposition on the part of any hon. gentleman in discussing the question whether we should have a national school system or a divided school system. I do not want to be a bigot;

I try not to be a bigot. I am sure that even if you do give the power to the province, in all probability you will have some kind of a separate school system. But what harm would there be in leaving it to them? If you adopt the clause I suggest you are not legislating to take away separate schools; you leave it beyond the shadow of a doubt to them to do as they please about separate schools. You make your legislation clear and you avoid litigation.

If that argument is not logical, I am far astray. The only answer to it that I can see is the argument of policy, the argument of toleration and moderation that was made in 1896. I am prepared to admit that my hon. friends who argue in favour of this clause as it is now amended are honest in their conviction that it is in the best interest of the country to try to quiet matters. But, on the other hand, I do not think that quiet would result from the legislation they suggest. I am one of those who think that if you follow the course here proposed you are more likely to stir up strife than if you do what I suggest. I had a Scotch grandmother, though I have an Irish name, and I can well believe that this is a case in which, if you are to grasp the thistle, it is best to grasp it firmly. If, in dealing with this matter as the Prime Minister proposes, we do not promote moderation and tolera-

tion, then I am right and he is wrong. But if his legislation shall create a feeling of safety and promote a spirit of toleration and moderation, then the right hon. gentleman and his supporters are right and I am entirely wrong.

Now, as to whether or not we have a right to legislate-an absolute, plenary right -or not, let me ask one question. And now I regret especially that the hon. leader of the opposition (Mr. R. L. Borden) is not here. But I would ask my hon. friend from South Simcoe (Mr. Lennox), who is a lawyer to give me an answer to this question when he replies. If we have not plenary power under the British North America Act of 1871, why were these words put in clause six of that Act ?

It shall not be competent for the parliament of Canada to alter the provisions of any Act hereinafter establishing new provinces in the Dominion.

That tells you that if you create a province you shall not alter that legislation afterwards, you shall not repeal it, you shall not do anything with it. If the British North America Act applies, ipso facto, automatically, or however you choose to phrase it, then the only thing you can do is simply to let it apply, for everybody knows that you cannot repeal or alter the British North America Act. Then, what in the name of common sense could the Imperial House mean by legislating that you should not amend the law after you have once created a province, if the amending of that law is clearly and admittedly beyond our power ? Does that appeal to the legal minds of hon. gentlemen? It seems to me absolutely conclusive. If this is not the conclusion, then it seems to me you can give no affect to the words. But if you were going simply to apply the British North America Act, that would be absolutely worthless and of no avail.

Now, Sir, upon this legal proposition I do ask some consideration at the hands of my hon. friends. If I am right, as I think I am, I cannot endorse the view of the leader of the government, nor can I endorse the view of the leader of the opposition, because I think that in the event of there being litigation over this Bill, it will be found that if you leave clause 2 in there as it stands-and they are certainly entitled to something like that-if you do not vary it, you will have a system of separate schools imposed upon these provinces, a more effective system, in the interest of the supporters of separate schools, than the present clause 16. In that respect I agree with the hon. member for Beauharnois (Mr. Bergeron), who made the suggestion last night that such would be the result. Now, if that is so, I ask again for protection in that regard for those who think as I do upon this question. It is necessary to vary this Act if you want to get rid of the effect of clause

93 of the British North America Act, and to do -that you will have to insert in this Bill some such clause as that the provinces shall have unconditionally the exclusive right to legislate on educational matters. If you do not do that, then I say that the constitution will- take its course, and the counts will decide that clause 93 shall apply, and the difference will be what is in clause 16 now and what clause 93 would give them.

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CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

Has the hon. gentleman read the amendment of the leader of the opposition?

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Mr L. G.@

McCarthy. Yes.

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CON

Samuel Barker

Conservative (1867-1942)

Mr. BARKER.

It is simply a declaration that we should leave them what you say you want to give them.

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Mr L. G.@

McCarthy. Now, Sir, I am very much relieved, because the closest lieutenant of the leader of the opposition has spoken, he says that the policy of the leader of the opposition is right along the line I am now speaking, upon, that is, we must pass legislation.

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April 7, 1905