Bemidji Daily Pioneer Newspaper, December 28, 1908, Page 1

THE BE MINNESOTA HISTARICAL SOCIETY, VOLUME 6. NUMBER 215. BEMIDJI, MINNESOTA, MONDAY “EVEN'I:‘NG. DECEMBER 28, 1908. ‘FORTY CENTS PER MONTH. JUDGE STANTON REFUSES TO ISSUE ANY MANDAMUS Orders Denial of Motion to Show Cause, Mandamusing County Commissioners to Appropriate One-Half the Cost of a Proposed Bridge. C. W. Stanton, judge of the dis- trict court, has denied the applica- tion of the City of Bemidji for a writ of mandamus to be issued against the board of county commissioners of Beltrami county compelling that body to appropriate a sum sufficient to constitute one-half the cost of a bridge proposed to be built across the Mississippi river at the narrows between Lakes Bemidji and Irving. The following is the order denying the writ, together with the memoran- dum attached: “State of Minnesota, county of Bel- trami; district court, fifteenth judi- cial district. City of Bemidji, a municipal cor- poration, plaintiff, vs. Wes Wright, F, O. Sibley, Joseph Wagner, George Gunderson and A. W. Danaher, constituting the Board of County Commissioners of Bel- trami County, Minnesota, defen- dants. “An order to show cause having been issued herein by M. A. Clark, Esq., court commissioner of Beltrami County, Minnesota returnable before me at Chambers in the court house in the city of Bemidji, Beltrami County on the 20th day of July, 1908, at 10 o’clock in the forenoon of that day requiring the defendants to show cause why they should not be compelled to appropraite one-half the cost of constructing a certain bridge, out of the county road and bridge fund, with the amount pro- vided for by the city of Bemidji and to designate two of their numbers as a committee to co-operate with the city council of the city of Bemidji in the letting and acceptance of the construction of said bridge, Jobn F. Gibbons Esq., appearing for the plaintiff in support of said order, and lenry Funkley, Esq., appearing and the court being fully advised in the premises. “It Is Ordered that the writ of mandamus prayed for be and the same is hereby denied and the order to show cause herein be and the sameis hereby in all things dis- charged. Dated December 24th, 1908. “—C. W. Stanton, “District Judge.” MEMORANDUM, “This was an order to show cause why a writ of mandamus should not issue to the individual mem- bers of the board of County Com- missioners Beltrami County, Minne- sota, to compel them, and each of them, to appropriate one-half of the cost of the construction of the bridge referred to in the petition out of the County Road and Bridge fund, as is provided for by section four of Chapter 423 of the Laws of Minnesota for the year 1907. The petition sets out the various steps had and taken in the matter, in detail, as a prerequisite to the mak- ing of the appropriation, which seem to be regular and in conform- ity with the law. These proceed- ings have in no manner been con- troverted by the defendants and will be taken as sufficient for the purposes of this proceeding. The defendants filed their answer to_the petition, representing that since the passage and approval of Chapter 423, G. L. 1907, the county of Beltrami has had no available money or funds out of which to act apart a fund for the construction and maintenance of roads and bridges, to be known as the “Gen- eral Road and Bridge Fund”, and that therefore the county commis- sioners of said county were unable to comply with the provisions of said chapter relative to the setting for the defendents, in opposition, apart of such fund. That for the Of a lifetime. Don’t getting one of those nolds’ Subdivision of White’s Addition. Easy terms within that wants to own their own home. H. E. REYNOLDS Phone 316 AN OPPORTUNITY let it go by without half acre lots in Rey- the reach of anyone 805 Bemidji Ave. bank. Did it ever oceur to you why all good business men keep a checking account with a bank? ables them to keep their fundsin a more secure place than the office safe. It gives them a better standing in the business world. pay their bills by check, the returned check being an undisputable receipt. Individuals find a checking account very convenient anad a source of sav- ing. Money in one’s pocket is often spent on the spur of the moment, while one is disposed to think twice before drawing on his balance in the Ger THE SAviNGgs HasIT. Lay up for a rainy day. Start a bank account with “The Old Reliable” The First National Bank of Bemidji We'll tell you. Iten- It enables them to year 1907, there was included’ in the annual tax levy of said county two mills on the dollar of the tax- able valuation of said county, viz: $6,042,754, amounting to $12,085.51 for general road- and bridge fund, of wl.:ich about fifty-five per cent had been collected. That the road and bridge fund of said county, which was created long prior to the passage of said act, is at the present time overdrawn to the amount of $24,345.30 and that the taxable valuation of said county for the purposes of the tax levy for the year 1908 is $6,368,054. “The real-inquiry then is, can the Board of County Commissioners be compelled, by writ of mandamus, to appropriate funds for the purpose named, when they have no fund for that particular purpose, and the re- turn shows that they have no funds on hand out of which payment can be made? “The return of the defendants herein show that they have no funds on hand out of which payment can be made, such return is wuncon- tradicted and must be taken as con- clusive for present purposes. “High on Extraordinary Legal Remedies (3rd Ed.) Sec. 352, lays down the rule that: “It is always a sufficient objection to the exercise of the jurisdiction by mandamus that the writ, if granted, would prove un- availing.” This is also the rule that pertains in this state. “State vs. Secrest, 33 Minn. 381; “State vs. Archibald, 43 Minn. 3%. “And whenever it is apparent to the Court that the object sought is impossible of attainment, either through want of power on the part of the persons against whom the extraordinary jurisdiction of the court is invoked, or for other suffic- jent causes, so that the granting of the writ must necessarily be fruitless, the court will refuse to interfere. “(High Extr. Rem, §14, and cases cited) “So ifit is apparent that the writ, if granted, can not be enforced by the court, relief will be with- held, since the courts are averse to exercising their extraordinary juris- diction in cases where their author- ity can not be vindicated by the en- forcement of process. Id. Nor will mandamus be allowed unless the act or duty whose enforcement is sought is legally possible at the time, and it is therefore a sufficient return to the alternative writ that the re- spondent has no power to do the act required. Id. “Would the writin this case, if issued be umavailing and fruitless? The text books and adjudicated cases uniformly hold that a public body will not be required to do an act when it is impossible through want of funds. “26 Oyc. 168, and cases cited: “‘Benton Harbor vs. St. Joseph & B. H. 8. R. Oo.. 26, L. R. A. 245: (Mich,) “High Extr- Rem. §363; and see note to Ray vs. Wilson, 14 L. R. A. 773, at p. 779, “In people vs. Early, 94 N. Y. S. 640, it was held that a highway commissioner could not be compelled to incur expenses in repairing a bridge where there were no funds available for such purpose. And in State vs. City Council of New Or- leans, 116 La. 851,41 So. 115, it was held that where the taxing power of the city has been exhausted and its estimated revenues are not more than sufficient to meet the statutory, necessary and usual expenses, man- damus will not lie to compel the appropriation in advance of any sur- plus which may result. “In this case it is undisputed. that since the passage and approval of Ch. 423, C. L. 1907, the county of Beltrami has had no available money or funds out of which to create the “General Road and Bridge Fund” provided for in that law; that it did have, prior to the passage of said act a fund for general road and bridge purposes which said fund was over- drawn to the extent of $24,346.30 and that the taxing power of the county for this particular purpose had been exhausted. Iam therefore of the opinion that the court has no power to compel the board of county commissioners, by writ of mandamus, to appropriate in advance of the creation-of this fund provided -for in Ch. 423, G. =L.- 1907, the money prayed for in the petition. To do so at this time “would be futile and unavfifing."' 3 | HUSET-DANAHER ELECTION - 'GONTEST IS DISMISSED Judge Stanton Allows_Moti Danaher’s Attorney, and the Case Ends. In district court, this forenoon, fudge C. W. Stanton ‘dismissed the contest’ case of ‘O. S. Huset against A. W. Danaher, which involved the eligibility of Mr. Danaher to serve as a' commissioner-elect from the Ernest Fisher who is acting the leading role of the play, was here with his “Cripple Creek” company about a year ago and the company is one of the best that ever showed here. Co. K Get Target Rifles. : Company K has received the new target rifles which are being companies of the Minnesota Na- tional Guard, with which to practice shooting and attaining proficiency as marksmen. The new weapons are whatare Fifth Commissioner district of Bel- trami county, the contestaut alleging non-residenice against- Mr. Danaher. The contest. inaugurated by Mr. Huset was the result of - the late general election, Mr. Danaher being the regular republican. fiominee for the office of commissioner . of the Fifth district, to succeed himself, Mr. Huset entering the race. as'an inde- pendent candidate omrthe face of the results of the election::as' returned by the county capvassing. board, Mr. Danaher was re-clected, the vote being 181 for Danaher: to' 124 for’ Huset. Mr. Huset contested, alleg- ing that Mr. Danaher ‘was' not a legal resident of the Fifth: Commis- sioner district, and theréfore .had not the right to be declared. re-elect- ed. L3 The case was taken up this morn- ing before Judge Stanton;. Chester McKusick - (recently electéd county attorney) appearing for Huset, and E. E. McDonald of this city repre- senting Danaher. ¥ Mr. McDonald moved ‘the dis- missal of the contest, on the ground that the action was not brought -on for hearing at either a general or a special term, as provided byilaw. This motion was argued, pro and con, and Judge Stanton _gnok the matter . under consideration: Mr. McDonald not waiving any of the rights of his client. pending the decision of this motion. Mr. McDonald again moved tte dismissa | of the action, on the ground that the eligibility of Mr. Danaher to serve on account of alléged non-resident in the district could not be properly appéaled from the decision of the canvassing board which had declared Mr. Danaher elected; that this matter could only be taken'up under quo warranto pro- ceedings, by or at the instigation of the state. In support of this motion, Mr. McDonald recited several cases and laid especial stress on the fact that in investigating this ‘contest Mr. Huset was endeavoring to thwart the will of the people, who had voted to retain Mr. Danaher as their com! missioner. Itis'up to the judges of election to decide tLe- qualifications of voters, etc., and not in the domain of a contest case to determine the eligibility of an elected candidate. Mr. McKusick opposed the motion -endeavoring to show that it was held in'this state that any person can institute’quo warranto proceedings in a case like that being tried. Judge Stanton stated that he was confident that this question of eligi- bility on account of alleged non-resi- dence was not a matter to be appeal- ed from the decision of the canvass- ing board. The judge ordered the contest dismissed, on the ground that the contestant was seeking to determine the 'right of Mr. Danaher to hold officé on the gronnd onls that he (Mr. Danaher) was not a resident of the district from which he was elected. The judge expressed the opifiion that this question could not properly come under an appea] from the canvassing board, but under the laws of the state could only be determined by quo warranto pro- ceedings. Therefore the contest was dismissed. This is the second instance where- in Mr. Danaher has been contested on the grounds of non residence in also dismissed, ““The Devil” Is Coming. T. ]. Newman, - advance agent for Ernest Fisher’s “The Devil” - com- pany, came to the city today and has been billing the town for the famous play which will be given here on New Year’s night, Friday, Jan. 1 the district. The former case was|| kuown as the Springfield Army In- door rifles, made especially for tar- get work. The rifles are the same in weight as the regulation rifles, but have a smaller bore and.22- calibre cartridges are used in the target shooting. Five targets have been received with the rifles, and also 10,000 rounds of ammunition. Captain Otto states that the mem- bers of Company K will begin practicing with the rifles, right after the New Year. GEORGE T. BAKER & GO. THANKFUL TO PATRONS Are Desirous of Fulfilling All Agree- ments, fo the Very Letter.—Had a Splendid Trade. George T. Baker, manager of the manufacturing jewelry firm of George T. Baker & Co. of this city, to thank the public through the columns of the Pioneer for their liberal patronage during the Chris- mas rush. When interviewed this morning by a representative of the Pioneer, Mr. Baker said: 4 “I wish you would state to the public that during the holiday rush in our store, possibly some watches were delivered that were not cor- rectly adjusted, rings sold that were not of the correct sizes, and we know that there were many articles of jewelry and silverware purchased from.our extensive stock which were not engraved. “If it is the wish of the recipients of these articles to have their initials engraved on them, or any alterations or adjustments made, we shall be glad to comply with their desires, absolutely free of charge. “I firmly believe,” continued Mr. Baker, “that satisfied patrons are our best means of advertising and our policy is accordingly dictated by that principle. “We have had a large share of the holiday trade and are thankful to our many patrons for it. We wish all our customers and friends a prosperous and a happy New Year.” desires given to the members of the militia|,. SPLENDID WORK AT THE ST. ANTHONY’S HOSPITAL Many Operations, and Large Number of Cases for Treat- ment, With No Fatalities.—Institution Has Enviable 4 Record for a Low Death Rate. ST. ANTHONY’S HOSPITAL. St. Anthony’s hospiti], the local institution which is so ably con- ducted by the St. Benedictine Sisters, is fast gaining the reputation of be- ing one of the very best hospitals in northern Minnesota, and the success which has attended the treatment of patients and the performance of operations at this hospital is a matter of congratulation, not -only to the Sisters, but also to the entire city as a prosperous institution within our portals, During last week there were some twenty-four operations for appendi- citis which were performed on patients at St. Anthony’s hospital; there are also sixty cases of typhoid fever. None of the operations have had fatal results, and there have been no deaths from typhoid. There are still five cases of appendicitis awaiting final disposition by the attending physician. In addition to the operations and the fever cases, there have been several patients at the hospital who were suffering with pneumonia, all of whom have recovered. The new bacteriological and pathiological .laboratory which has recently been established at the hospital is being used daily. Ina few cases, the doctors are unable to classify the germs of patients. In this department, the germs are grown until they become recogniz- able. The installation of this labor- atory is of great assistance in the treatment of patients. The Sisters of St. Benedict are conducting the hospital in an admir- able manrer, and are deserving of, and do receive, the hearty endorse- ment of all residents of Bemidji. Thelow death rate at St. Anth- ony’s hospital has long been a matter of much favorable comment, Dr. Gilmore, one of the local physic- * ians who have patients at the insti- tution, states that the death rate at St. Anthony’s hospital ranks with the very lowest in the State of Min~ | nesota. Bound Copies of City Charter for $3. The Pioneer will soon print and bind copies of the charter, bound volumes of which have been greatly desired for some time, and will deliver the books, neatly and substantially bound, to order, for the small sum of $3. A representative of the Pioneer will call on you, or you can call at he.office and sign for one or more volumes, at the stated price. Obtaining copies of the charter has been a matter that has worried many people of the city, and how to Bemidji city get them printed has never been taken up. As stated before, the Pioneer is taking orders for bound volumes of the charter and will de- liver them for $3 per copy. Leave your order early if you de~ sire a copy. ‘ Swedish Ladies Will Meet. The Ladies’ Aid society of the Swedish Lutheran church will meet at 2:30 o’clock Wednesday afternoon at the home of Mrs. Cornwall, 1121 Bemidji avenue. Local News on Last P: Ask for Russet Fountain Pens at The Pioneer Office | The “Eagle Russet” Fountain Pen " The Best Dollar Fountain Pen on the Market The Pen is always ready for use and may be carried in any "position without danger of leakage