Bemidji Daily Pioneer Newspaper, September 24, 1913, Page 1

e == = VOLUME 11. .NUMBER 128. JUDGE STANTON UPHELD BY THE SUPREME COURT Decision In Case of Arpin Dredging Co. vs, J. L. George Favors Ditch Contractors. HOLD 1913 LAW CONSTITUTIONAL County Must Pay $9142.50 Which It Wanted To Hold Back Until Contract was Completed, The decision of Judge C. W. Stan- ton in the case of the county audi- tor vs. the Arpin Dredging company was upheld by the supreme court in a decision handed down last week and as a result the county will be compelled to pay at once the 75 per cent balance amounting to $9142.50 which it believed it had a right to retain until the contract was entire- 1y completed. The opinion was rendered by Jus- tice J. Holt and in order to give the citizens of the county a thorough understanding of the case parts of the opinion are herewith published showing the contention of both the county and dredging company. Syllabus, L. A respondent is not ontitled to have an appeal dismissed on the ground that the court was without jurisdiction to render the decision ap- pealed from. 2. In public drainage undertak- ings the county is a mere govern- mental agency of the state and the contracts which it is required to make and the funds it must provide for such purpose are within the con- trol of the legislature. Hence chap- ter 567 L. 1913 in its retroactive as- pect can not be held to impair any contract obligation or interfere with any vested rights of ‘the county. 3. Although said statute as to contracts existing prior-to-its-passage gives a benefit to the contractor at the expense of the ditch fund it is not clear that the public purpose of drainage may not be promoted ther- by. If such purpose may be subser- ved the incidental advantage to the contractor does not render the sta- tute open to the conmstitutional ob- jection that a private gratuity is granted from public funds. 4. The objection to the statute that the classification therein made is arbitrary, and that it is special legislation is without merit. 5. It does not appear from the pe- tition and writ that relators are in default or are not entitled to the amount specified in the engineer's certificate. Opinion This is an appeal from an order overruling separate demurrers inter- posed by the defendant and the inter- vener to a petition and alternative writ of mandamus. The court below certified that the question presented by the demurrers was important and doubtful. The main facts disclosed by the pe- tition and writ, and necessary here to state in order to a proper under- standing of the controversay, are these: The defendant is the auditor of Beltrami county. In February 1911 the relators entered into a con- tract with the counties of Marshall and Beltrami to construct therein Jjudicial ditch No. 12, and gave a pro- per bond for its preformance. The ditch was to be completed by Decem- ber 1, 1912, but an extension of one year was granted. The estimated cost of the ditch and roadway on its banks was about $70,000.00. As the work progressed payments were made to the relators of 75 per cent of the yardage excavated as provided An the law in force when the contract was made and as therein stipulated. ‘The cost of construction apportioned to Beltrami county was 99.73 per cent and to Marshall county.27 per cent. On June 30, 1913 the engineer in charge of the construction issued to relators and filed with the respec- tive county auditors a certificate con- forming to chapter 567 of the Laws of 1913, showing that the contract price exceeded $30,000.00; that the total amount of constructive work done at the contract price was $48- 892.13; that the total amount of the estimates or certificates therstofore issued to the relators for such work was $36,669.09; that the balances re- tained by said counties upon the work done amounted to $12,223.02; that 72.3 per cent of the whole construc- tion was complete; that 75 per cent of the balance retained by Marshall county for the work as far as com- pleted ‘was $24.75, and by Beltrami county was $9,142.50; and\ that in his opinion no loss will result from the payment of said Bums to relators. The defendant as auditor of last nam- ‘the propriety of the order permitt- ed oounty retused to issue a warrant on the treagurer for the amount speci- fied. The county of Beltrami was per- % mitted to intervene by demurrer over the objection of relators that the court had no jurisdiction to hear and determine such demurrer. The relators insist that their ob- Jection was valld and should result in the dismissal of the county’s ap- ‘peal in this court. The relators are not appealing, hence cannot assail ing the intervention. Nor should they now have the appeal dismissed because that would result in giving them the benefit of a decision on the merits on the assumption that juris- diction existed. Under the terms of relators’ con- tract, and the law in force when it was executed, the auditors’ refusal to issue the warrant was proper. But the right thereto is claimed under chapter 567 Laws of 1913 which amends the amended section 17 of chapter 230 L. 1905 (the drainage act) so that ,as to existing contracts involving work the total esti- mates of which exceed $30,000.00, 75 per cent of the one-fourth which under the contracts, and the prior law, was to be retained by the county of the estimates given by the engine- er in charge as the work. progressed until the full completion thereof might be paid to the contractors, af- ter 50 per cent of the excavation was done, and there was no default, pro- vided the engineer in charge gave a certificate stating the facts and that no loss would result from such pay- ment, In the instant case the certi- ficate above mentioned issued by the engineer in charge complied with the Law of 1913. The appellants contend that as to! prior contracts the act referred to contravenes the constitutional pro- visions, state and federal, forbidding impairment of contract obligations; | that the classification attempted is arbitrary and invalid; that it Is special legislation; and that the ef-: fect upon the contract with relators is to appropriate public funds for private gain. is that the county is not interested in drainage contracts except .as a mere governmental agency of the state in carrying on the purpose of Dronioting puble health and welfare; that therefore the state retains fulll control of the drainage contracts and may modify those already entered in- to with the consent of the contractors and sureties, at its pleasure; and that legislature has plenary power over the disposition of funds of coun- ties, therefore the county cannot claim any right to contract obliga- tions, or private interest in the con- tract, or in ditch funds which need be respected by the legislature. The serious objection to this act as to contracts entered prior thereto is the contention that it bestows a gratuity upon the contractor out of public funds without serving any public purpose and without there be- ing any moral obligation on the state or county so to do. A county where- in public drainage is under taken is required to provide a' ditch fund by the issue and sale of bonds for which the county’s credit is pledged, Van Pelt vs. Beltrami, supra; and it 1s| also authorized to transfer to this fund any surplus remaining in the general revenue, or other funds of the county which can properly be used for the purpose of the act. Sect. 18 Chapt. 230 L. 1905 as amend- ed by Sect. 7 L. 1909. By Sect. 500 R. L. 1905 the county treasurer is required to deposit the funds entrust- ed to his care in designated banks which agree to pay interest on monthly balances. It is therefore | plain that, if there is sufficient in the ditch fund on deposit in the bank to meet the payments required by this amendment of 1913 ahead of | the time specified in the contract of relator, there is a loss of interest which such payments would have| earned had they remained in the bank until the full completion of the contract. On the other hand if the bonds have not been negotiated and the ditch fund is empty then the teen years old, a waitress at the Clay-! gale that swept over Lake Superior. warrant issued draws interest at 6 gale per cent and a loss of such interest, ton hotel in Nora Springs, drenched ¥or a time it also Was feared that the from the time of the issuance of the| warrant up to the time of the comple- tion of the work results to the ditch, before found. The girl is a daughter | against the wind. She was more than fund. To the mind of the writer the The relators’ position ! ‘| slon had been lawtfully granted to |relators. Nor, does it so clearly-ap-j» | No Verdict in Manslaughter Case at KREKEKE KK KK KK KK KKK x “AD DOES BUSINESS” '~ “Take that ad out before I * % am . induced to ‘g into wagon & % business. Mr. Rrice purchaged 4 % that school wagon after seeing & % the ad in the Pioneer I'am % * well satistied and ~will - know *[° * what to do in the future.” * ¥ The above statement was & % made by Paul Utech of Turtle % * * * x * * River over long distance ‘tele- % phone last night. This is only ¥ one more instance where the % Pioneer ads have brought results in short order. Cost half & cent a word. Phone 31 - % R KKK KKK KK KK contention that no. public object is subserved by a modification of exist- ing drainage contracts seems almost unanswerable. The only public pur- Dose to be attained was the construc- tion of a ditch in the place, of the kind, and upon the terms specified in the contract. A proper bond se- cures a strict performance thereof. The modification made by the act of 1913 does not, as a matter of right, secure a speedier or better perform- ance of the contract or the purpose for which it was made. The benefit is to the contractor alone. His gain, the ditch fund must to some extent bear. Nor can this law, as appled to contracts already in existance, 15 find justification in any moral claim. ! |1t applies as well to a contractor who | ihas secured a highly profitable con- tract as to the one who entered: into a losing venture. Surely, there is no moral obligation to help out the for-! mer, GOLDBER&, Jacob Gold}beré,fl(_ who has esiablishe repair shops in < Mr, Goldberg t repair business fop the past twenty years snd comes view of establishing a. ‘prosperous business heré. Hisjentire equippment of new machinery;has arrived and work of installing:it'is now in pro- gress. “We are actually pair work while y§u walt,” said Mr. Goldberg,: “and I 4m going to show the citizens of this section of the state.'what an up-to-date” shoe re- pair shop can do. The mnchlnery will be run‘by electrleity - “The aquippmen@,conshts of a pol- isher, stitcher, a saleity jack which keeps-the shoe in fierlent’ shn.pe and | a buton fastner ‘which \will fasten 500- biattons’ on tht shoe'in fifteen mmutes," continn [ he. ' .The store will ‘her‘opene\i ‘l‘hursday Semember 25th.. Mr, G«aldberg ex- pects to move his, mmfly Here during thé next three weeis % going to do re- As to further drainage contracts it is clear that it is within the leg“,x‘ |islative discretion to classify and {prescribe the terms thereof. Assum- ing our conclusion to be correct, that there may be a legitmate public pur- pose served by modifying existing in- completed drainage contracts, then the objection of special legislation and arbitrary classification is with- 'out merit, and need not be discussed. i The claim’ that the petition ang| writ disclose that the relators were in default, hence they were not en- titled to the warrant cannot be sus- tained for it appears that an exten- pear that any part of :the. money which according to the “engineer’s certificate, and the act of 1913, the relators are entitled to has been for- feited by delay ocecurring prior to the granted extension of time that the cause should be determined on demurrer. Order affirmed. SUSPEND THOUSAND PUPILS Syracuse Students Penalized After Strike Against New Hours. Syracuse, N. Y., Sept. 24.—One thou- sand pupils of three Syracuse high schools were indefinitely suspended following a strike as a protest against new hours of study—9 o’clock in the morning to 2:30 in the afternoon. The striking pupils, many of whom | the recovered portions of the woman’s were girls, escaped through windows and side doors, paraded the business streets and held indignation meetings. The pupils demand a return to the old hours, from 8:30 a. m. to 12:50 p. m. BABCOCK JURY DISAGREES Red Wing, Minn, Red Wing, Minn, of Minneapolis, charged with man- slaughter in connectirn with the death of Mrs. Alfred Anderson, killed in an auto acident here Memorial day, reported a disagreement and was discharged. County Attorney Mohn announced that Babcock would be tried again at the December term of court. The Minneapolis man was held on his old | bond of- $15,000. Girl Fires Her Clothing. Mason City, Ia,, Sept. 24—Going to a deserted closet, Elsic Bastese, six- Sept. 24.—The ! jury in the case of Ralph H. Babcack . - +++-l~'l-+"<+t++.++++++ $is 5 & 4+ GAYNOR’S DEATH :BRINGS £ GRIEF TO DOGS. * K = < 4 New York, Sept. 24—Pathet. | # ic in conection with the death <+ of Mayor Gaynor have been <+ the actions of his three dogs ! on his country. place at St. James, T. 1. Ever since re- <+ ceipt of the news of their mas- % ter's death they. have shown 4 that they realized somethirg -« %+ untoward had ‘happened to < <+ E *+ - 4~ him. - They miade . frequent . trips_over the road and paths 4 which the mayor was accus- 4+ tomed to ‘take: on his long walks - with-Irt 8088 as--com-- +1% panions and vainly endeavored < *+ to pick up the lost scent. & I+++++'§++++++++++ PRIEST TO VIEW HIS CRIME Slayer of Aumuller Girl Will Be Test- ed by Alienists, New York, Sept. 24—The aged father of Johann (Hans) Schmidt, self-confessed murderer of Anna . Au- muller, has decided to come to New York from his home in Auchaffenburg, Germany, according to a dispatch re- ceived here from the German town. The parents of Hans Schmidt still hope to find that the priest is not their son. Two alienists employed by District Attorney Whitman will examine Schmidt. It is* understood that one of the tests of the priest’s mental condi- tion will be in taking him' to the morgue and asking him to identify body. Practically the' entire case against Schmidt now rests on the question of his mental responsibility. CURRENCY BILL DISCUSSED Untermeyer Resumes Debate on Ad- ministration Measure. Washington, Sept. 24.—With pros- pect for extended discussion of the administration- currency bill the sen- ate. banking .committee continued to hear Samuel Untermyer of New York discuss the measure. Senators were of opinion that thrée weeKs and pos- sibly a month will pass before the bill will be brought into the senate. Mr. Untermyer, while endorsing the general principles of the bill, suggest- ed a number of amendments which he thought would strengthen it. Many of these evoked lengthy discussions between Mr. Untermyer and members of the committee. in Storm. Sault Ste. Marie, Mich, Sept. 24.— her clothicg with a gallon of kero- sene which it is supposed she set on fire herself. She was fatally burned of a farmer near Floyd, At least one life was ‘1dst'during the steamer Huronic, carrying at least 200 persons, had leen lost, but the vessel arrived here after a battle this city with a|, | & sane man could commit. twenty-four hours ‘overdue. WM. TRAVERS JEROME ON JOB Opens Argument For New York State—Followed By Attorneys * For Fugitive Concord, N. H., Sept. 24.—Harry K. Thaw wept as his counsel pleaded with Governor Felker not to surreny| York, who were determined to return By Symphony exub.q-omm CLUB' MAKES ‘PUBLIC APOLOGY when_the Shubert Symphony Or- chestra club entertained 300 Bem- 1dji people at one of the best musical concerts ever played in Bemidji. High class ieatures in every respect is the desérving tribute to which this The officers of the club have asked der him to the authorities of Ne“lm therselections rendered. the fugitive to the Matteawan insane asylum, from which he escaped. - Seated only a few feet from Will- iam Travers Jerome, Thaw seemed to follow the arguments closely, but when his eyes were ‘not blinded by his handkerchief they were fixed in- ‘tently on the face of the special dep- uty attorney general of New York, as | thongh the head o the opposing coun: sel was the man to be convinced. By his side sat his mother and brother. Jerome opened the extradi- tion argument by merely saying that the duty of the governor to grant the petition for extradition was plain. William M. Chase of Concord, for- mer judge of the supreme court, and William A. Stone of Pittsburg, former governor of Pennsylvania, argued for Thaw. ' They occupied an hour and a half, after which an adjournment un- til 2 o’clock was taken. Claims Evidence Lacking. The afternoon was given to Mr. .Ye- rome to reply. Judge Chase and Gov-! ernor Stone declared that the petition for extradition was insutficient in form { and unsupported by the necessary evi-: dence, and that the siatc of New York having throtigh its courts declared Thaw insane could not now request frem New Hanipshire his extradition for a crime which by its nature only This crime ‘was conspiracy to escape from the Matteawan insane asylum. With the opening of the extradimdty‘ hearing by Governor Felker counsel on | ‘both_sides. tealized:that the-hour -of{- - > legal sparring for a temporary advan- tage had passed and that the outcome o+ | rested on the interpretation of points of law, regarding which few if any precedents had been found. Counsel for the fugitive maintained their confident attitude that Governor Felker would not grant.the extradition of a chance visitor wkose only offense was that he had escaped from a juris- diction in which he had been held irre. sponsible. Many disinterested lawyers held that the case would go from the governor to the federal courts for final determination. REBELS DYNAMITE A TRAIN|; Fifty Persons Killed on the Mexlcan National Road. Laredo, ‘Tex., Sept. 24.—Fifty per- sons were lkilled when rebels dyna- mited a passenger train on the Mex- fcan National railway, sixty miles south of Saltillo, Mex., according to official reports to Mexican federal headquarters in Neuvo Laredo. The train was then looted and the surviving passengers robbed, it is said. Forty federal soldiers and ten sec- ond class ‘passengers comprised the official death list. The number of in- jured was not given CAUSE LOSS OF $400,000 Suffragettes Destroy Big Bullding Near Liverpool. ~Liverpool, Eng., Sept. 24.—Militant suffragettes set fire to Seafield house | at Liverpool, causing $400,000 dam- age. The members of the “arsom squad” lterature strewn about the lawns. The building was fermerly used as a convent and was undergcing recon- struction at a cost of $130,000. It wag to be turned into a hospital for imbeciles. The entire property 18 valued at nearly $1,000,000. African Prince in Harvard. Cambridge, Mass., Sept. 24—Plen. .yans- Gbe Wolo, son of an African chieftain, enrolled as a freshman at; Harvard. Wolo has been in this country three years and ‘earned suff- cient money in New York city to pay his way- through a preparatory school. ,imidji when the left a quantity of suffrage. the Pioneer to make a public apology for their negligence in supplying enough seats for the audience. Be- cause of the rainy weather a large crowd was not expected to attend and as the greater portion of the audi- ence did not arrive until after the performance started the seating ca- pacity was considered large enough to seat the attendance. CANDIDATES PICKED For Saturday’s Game Saturday afternoon Bemidji ath- letic enthusiasts will witness the firs, | football game of the season in Be- Red Lake Tallz High school eleven clashes with the ‘local High school team. The fastest men in the High_ school have been selected for this game which pro- mises to be a thriller. The following ymen will be given a chance to show their skill on the field; L. E., George. Graham, L. T., Bernard Moore, L. G., |Alec Cameron, C.,, James Sullivan, R. G. ‘Adolph Klein and Leslie ‘Slater, R. T., Krogseng and Herbert Warfield, R. E., Elletson, Quarter- back, D Riley, L. H., Fred Graham, and_ Lloyd COUNTY MEET POSTPONED “Committee Not Yet Ready To Report” Says Reynolds The meeting of the Beltrami coun- ty development association has been postponed because the committee, consisting of H. E. Reynolds A. P. Ritchie 'and 'J. E. Dade, which is to make a report 4nd submit plans for effecting an agricultural loan associa- tion has'not completed all arrange- ments. The meeting was to be held October 4th, but has been postponed indefinitely. FARGO 'ARCHITECT HERE Will Submit: Plans For Markham Hotel Annex 'W. D. Gillespie of Fargo, North Da- kota, arrived in Bemidji this morning and will submit plans for the Mark- ham Hotel Annex which will be built in the near future. Excavating will commence soon and if present plans are carried out the new addition will be ready for use early in the spring. EASTERN STARS MEET Will Hold Special Meeting At Which There Will Be Balloting There will be a. special meeting of the O. E. S. at the Masonic hall: at 8 o’clock Thursday evening by order of the W. M. The members are also to take notice that there will be balloting. Two Drunks Before Crowell William Benton and E. A. Swat- foger were tried before Judge Cro- well this morning on a charge of in- toxication, Benton was fined three ‘dollars and was alowed his freedom. Swatfoger was allowed to go a8 he had but little money which he needed in returning to his home. A Man Will Do Most Anythmg When He Is Hungry By 5,Hog)0 Nearly 76 dollars was cleared for the Bemidji Athletie club last night| VILL NOT RETURN TO BEMIDII company is entitled when refering [, High School Foothall Team Sslected: FLESHER ACCEPTS lNDlANOLA OFFER Methodist qutm- Quits Ministry To - Accept Superintendency Of- Has Planned Temporary Eefiremeng For Several Years—Begins New Duties At Once Members of the Methodist church and Bemidji citizens in general will regret to learn that Rev. Charles H. Flesher, who for the past three years has been pastor of the Methodist church of this ‘city has accepted a' position as superintendent of the Francis Home at Indianola, Iowa, his former home town. The home was founded for old peo- ple and the position is consldered an excellent one. Rev, Charles H. Flesher During the past six years Mr. Flesher has built two fine churches and the strain under which he la- bored hasr‘bej\n—trymg -and_he feels fustified in taking -a’ rest“from ‘the pastorate, according to a letter to the Pioneer. Fuller Fills Pulpit Dr. M. D. Fuller, who has been making his summer home with his daughter,- Mrs. G. Strickland, and who is a retired pastor of the M. E. church has taken charge of the pas- torial affairs until a new minister is appointed by the conference next month. Disappoints Many The leaving of Mr. Flesher so sud- denly will doubtless dissappoint many of the church members as well as many of the citizens of Bemidji. He was much liked by all and won the confidence and . admiration of those with whom he came in con- tact. When the question of his return by the conference came up, most of the church members had no doubt but that he would be returned to his charge. He has built up the church membership from a scattering congregation to one of the strong- est in this section, in addition to giv- ing them and this city one of the best and prettiest churches in the state. His many friends and loyal sup- porters extend to him their earnest and best wishes for success in his new undertaking and perdict for him a most prosperous future. FAIR OPENS TOMORROW Clearwater County Farmers To Show Big Display Tomorrow morning the seventh an- nual fair of Clearwater county wiil open with a bigger and better array of exhibits than have ever been enter- ed at a fair in that county. Three days will be taken up in displaying the products of Clearwater county. More entries have been made to date than were entered at former fairs [ard every indication leads the di- rectors to believe that the event will feature among the best fairs in the state. Clearwater County was award- ed third place at the State fair and will have a great many of the ex- hibits which were shown in. their booth at the state fair at the fair which opens tomoorow. -The fair management extend a cor- dial invitation to Beltrami : County residents to attend their fair. SOCIAL - SESSION THRUSDAY M. B. A. Lodge To Meet At L. 0. 0. F, + v Hall Thursday Evening . Memebers of the M. B. A’s and their families will give a social at the Odd fellows hall Thursday even- ing to which' the families have been invited. A splendid program has been arrs.nged eonais(.lng of spelkln;,