The Bismarck Tribune Newspaper, April 5, 1921, Page 3

" TUESDAY, APRIL 5, 1921 ‘OF WATERMAN AN4:46 TODAY Death Strikes Twice in Same Family in One Week—Heart Trouble Cause | ‘The funeral of Harry Waterman,, who diedSunday of heart trouble, | was held yesterday from the Kennelly chapel; The beautiful services were! in. charge of the Odd Fellows. This is the second death in the| same family within a week, Mr. Wat-| erman was a brother of Mrs. Eugene} Reyman, whose husband’ died Friday of paralysis. ‘Mr. Waterman came from Mara-/ thon, Iowa, a little over a year ago| to aid in the farm work of his son-in | law, Mr. Husfloen of Price. | ‘He became ill several weeks ago) and came to Mandan to the home of his sister, Mrs. George Dailey, and was taken to the hospital Saturday) for treatment. Mr, Waterman leaves besides his! widow in Iowa and his daughter, Mrs. ; Husfloen, three sisters, Mr3. George ‘Dailey, Mrs, Couch of Marathon, Ia,| and Mrs. Eugene Reyman of Mandan. < Fargo Guest. ‘Miss Marie Hollingsworth, a kargo! teacher, was the week-end guest of/ Miss Marie Malloy of the Johnson! store business department. . From Coleharbor, H Miss Myrtle Johnson and . Mrs.| Stroh of Coleharbor spent the week- end in town on a shopping trip. | Degree of Honor. t The regular meeting of the Degree; of Honor will be held at the home of) Mrs, ‘Paul LaFrance, 1010 Ave, C., on; April 5th. All members:are requested | to ‘be present. Stanton Couple Married. Mill Hildren Brown and Oscar Slinde, bot of Stanton, were married) Saturday afternoon in Mandan. by! Rev. Hugh Owen of the Presbytérian | manse. The couple, after a brief hon-| eymoon, will make their home at, Stanton. | MANDAN NEWS HOLD FUNERAL | store, has RIGLER GETS SPARK BACK! B, M. Rigler of Rosen's Clothing recovered his diamond | which he lost last Friday when it worked loose from the ‘prongs of his ; | ring. It Was found by a dishwasher in one of the restaurants on the side- walk in front of the Mandan Drug company’s store. The finder did not realize its value and showed it to a friend who took it to a jeweler who Pronounced it a No. 1 stone. Archie Miller, the friend, had read in the Bismarck Tribune of Mr. Rig- ler’s loss and got in touch with him. It fitted the prongs exactly. ENGINEERS TO SURVEY ROAD W. G. Black and E.R. Griffin have| been named by the state highway) commission as the engineers to lay out the road from Mandan to the new bridge, SUFFERING FROM PNEUMONIA Rev. C. H. Brown of the Episcopal church is at the Mandan hospital suf- tering from an attack of pneumonia, {| Here from Judson. Bruno Just of Judson is here for several days. Visited Relatives. Mr. ‘and Mrs. John Tavis and Law: rence Tavis visited relatives at Glen Ullin Sunday. ‘ Returned from California. Mrs, William Simpson has returned from California. Mr. and Mrs. Simp son will move ‘May 1 into their new | home on Secon Street, N, E. Savoy, Union Manager. . E. Savoy of Minneapolis has tak- | en over the management of the West- ern Union office. War Mothers’ Meeting. The War Mothers are holding their regular monthly meeting this after- noon at the Commercial club rooms. To Hold Regular Meetin; A regular meeting of the Mandan Lodge No. 8, A. F. & A. M,, will be held tonight. Guest of Ralph Ployhar. | TTIE BISMARCK TRIBUNR ation desires to borrow money for an authorized purpose and where it al- ready has certain funds in the treas- ury applicable to outstanding obliga- tions so that the debt limit may be properly calculated by subtracting from outstanding debts the available funds in the treasury, (Anderson vs. International School District, No. 5, 32.N. D., 413, 156 N. W. 54), it is clear that it has no application to such a situation as that presented here, If the argument is valid as applied to the borrowing power of the state in its present circumstances, considering the bank as the state, it is obvious that the Janguage ‘No future indebt- edness shall be incurred by the state unless evidenced by a bond © Issue, which shall ‘be authorized by law for certain purposes,’ means nothing, There would be no limit, as every ex- ercise of the power to borrow would simply result in increasing available funds and the transaction could be re- Peated ad infinitum. A concrete ex- ample may serve to illustrate the fal- lacy of the argument. If the funds on deposit. public ‘or otherwise, in the Bank of North Dakota seemed to the management to justify it, the bank might purchase $5,000,000 of the bonds of the mill and elevator series. It would still owe to the depositors the amount of deposits thus invested, but the state would owe the bank a like sum. Then the bank might borraw $4,000,000 elsewhere, pledging these bonds as collateral, in which event the state, if-petitioner’s argument is sound, becomes indebted to the extent of $9,000,000, only $5,000,000 of which is represented by bonds. Then. this $4,000,000 could be used to buy more bonds to serve aa collateral for an- other loan, and so on. happened to this provision of the con- stitution: / ‘No future indebtedness shall be incurred by the state unless evi- denced by a bond issue, which shall be authorized by law for cer- What then has | but difficult in demonstrat; Upon.‘ this court {s imposed the sworn duty; to uphold the’ constitutioi of this state, as well as its laws, not one con- stitutional provision, not one law, but all of them: The same sovereign pow- er, the people, that have sanctioned the constitution, and the laws there- under, imposed this duty’ upon the court. Amidst the turmoil and strife of partisan controversy in this state, the noise and rumble of which are heard within and without the state, the judiciary, if it shall perform its sworn duty, fearlessly and independ- ently, must if it gshall perform its sworn duty, fearlessly and independ- ently, must determine legal controver- sies upon the, law and legal issues. The law is the constitution, para- mount, the statute, subordinate. AU the luw when. harmonious and con- sistent. The latter must be upheld when, upon interpretation, it may be rendered. harmonious and consistent with the constitution, Otherwise, it must yield to the.paramount law. This law. the whole law, as prescribed, must. be upheld as: it is written, by the judiciary, pursuant to its imposed duty, disregarding and unmindful of the partisan clamor of approval or disapproval resulting. Mortal men err; judges err; mortal men differ; so do judges. But upon question of law, upon legal jsues, must judges, upon their conscience and sworn du- ties, differ. Thus, discrediting neither the sincerity of purpose of the attor- ney general in his petition, nor the vigorous dissenting opinion of our honorable associate justice. the perti- nent legal questions are to be ap- proached and considered.” The Two Questions. What Judge Bronson termed the two issues of the case again were | stated: (1) Is the Bank of North Da- kota, the stater and (2) Is it subject ; to garnishment? | The justice points out that the stat- tain purposes” No bonds were issued for the $4,- | 000,000 of obligations and the purpose for which the loan is made is not clearly defined by law, It may be.any purpose the managers of the bank deemed proper. The ceeds could be transferred to any department or industry, or reloaned under the Bank Act, or used to purchase other bonds of the state.” Right of Garnishment.- In cbncluding Justice Birdzell de- clares that “to hold that a bank may not be made a garnishee is, in effect, to read into the statute, Section 5185, C. L. 1913, a prohibition that is not there. The legislature, it must be as- sumed, was just as familiar with gar- Mr. and Mrs. O. E. Cleve of Me-| nishment as it, or as the court was Clusky were overSunday guests of Mr, and Mrs, Ralph Ployhar. Reet ENTIRE CREDIT OF STATE NOT BEHIND BANK, RULING (Continued from Page 1) to use in conducting the, particular business. To make the business a suc- cess it may be necessary to vest in its agencies powers that could not be conferred on public - officers whose acts as such would bind the state un- qualificdly. ..These agencies hazard only the appropriated capital, not the public credit. Doubtless it was partly ‘on account of these limitations that it was thought best to appropriate a cer- tain capital for, use in the banking business and to create a bank organi- zation which, using this capital fund -as its basic security, could so handle’ the funds deposited with it as to real- ize the governmental objects sought without trenching upon the constitu- tional limitations applicable to the state itself. It can not be reasonably contended that the constitutional au- thority to engage in certain business nullifies by implication express limi- tations on the ro~v>~~ “f the state go ernment, especii ere these, limi- tations are embod.cd in amendments adopted concurrently: with those giv- ing the authority. Relation As Debtor. “We have no doubt that-under the Bank Act the bank sustains the rela- tion of debtor with respect to all of the deposits. both public and private, that are placed in it. It is simply the authorized depositary of the pub- lc funds, and holds them in the same capacity that private depositary banks customarily held them before the Bank of North Dakota was created: There is a vast difference between this relationship. and an official custodian- ship in which the official is using the funds in furtherance of the particular purpose for which they were raised by taxation. “Pursuing the subject of legislative intent further in the light of still an- other constitutional proyision: Arti) cle 31, of the Amendments to the Con- stitution so amends Section 182 of th2 orfginal Constitution as to authorize the issuance of unsecured bonds to Ki-m010§ (Tebiets or Granules) Fee INDIGESTION With or without water: pleasant to take. QUICK RELIEF! Price, 25-50-75¢ MADE BY SCOTT & BOWNE MAKERS OF SCOTT'S EMULSION 1 ones. row may be too late ARE YOU A YEOMAN? Are you in the large class initiation that takes place April 13th? / If not, why not, * yourself and family joinjtogether and take out some protection to protect your loved Do this while you are in Call C. A. Post, the extent of $2,000,000 certain real estate bonds, and bonds secured by owned utilities up to $10,000,000. It then provides as follow: ““No future indebtedness shall be incurred by the state unless evidenced by a bond issue, whith shall be authorized by law for certain purposes.’. Borrowed $1,000,000. “We have previously referred to the fact that the Bank of North Dakota has borrowed 000,000, thereby, of course, beconiing indebted in that sum. It is doubtless authorized by the Bank Act to borrow money. If 1 could borrow such greater sums as its business ‘seemed to warrant without collateral or with whatever collateral there be demanded by the lender,.and for every dollar so borrowed, if the contentions of the petitioner are cor- rect, the state would be lable. Not only by resort to the state treasury: being denied access to the resources ‘of the bank. Thus, the limitation contained in Article 31 of the Amend- ments which was adopted at the same election as Article 32, authorizing the state to engage in business, would be effectually nullified. School Funds For Houses. “Some attempt is made to show that the limitation against future indebted- ness does not apply where, as a re- sult of the transaction, there is a cor- responding amount of funds avallabie for meeting. liabilities. Conceding that this argument is to some extent applicable where a municipal corpor- IKOER 521 Broadway Phone 18 \ Light and Heavy Hauling SAND and GRAVEL House Moving Piano and Furniture Moving || Excavating and Grading COAL and WOOD All Work Guaranteed ‘ood health, tomor- hone 30 only would the state be Hable, but! the creditor could obtain a judgment jing opinion. Both th titi only against it which he could satisfy | PEA amram tel ea ety with attachment and execution ‘and with the differences in the operation; of those remedies, When it prohibited attachment “and ‘execution against banking associations, therefore, omit- ting garnishment, it must be assumed real and personal property of. state-| that the. omission was intended.” Bronson’s Views. Justice Bronson, ‘in beg‘nning his opinion in the case, refers to the al-) jlegations of Justice Gruce, In his dis: senting. opinion in the case when it! was first decided. that the court's de- cision was “judicial legislation.” Jus- | tice Bronson’ says: “The defendant has filed a petition for rehearing wherein it is contended again that the Bank of North Dakota is the state and, as such, is not sub- ject to garnishment, and, further, that this court judicially. legislated in hold- ing to the contrary. The petition pre- sents no legal issues that have not been fully considered’ by the court; it presents no legal determinitive issues other than those considered and de: termined by the majority opinion. It re-asserts many of the contentions made by Justice Grace in his dissent- dissenting opinion, therefore, merit consideration not only by reason of the importance of the case but also because of an interpretation attempted to be placed upon the majority opin- jon and the presentation -of issues hereby, that lead far afield from the determinative isues in this case, To lating concerning, or judicially de- stroying a state enterprise or indus- try, is perhaps easy in bald assertion, AL O.B.M MINNI *. With our new McClintock general banking business. Safety state that a court is judicially legis- | Safety and THE TWO STRONG PILLARS ON WHICH WE ARE BUILDING OUR BUSINESS we recently installed, our bank is a’safe place to keep your Liberty Bonds and other valuables First National Bank, Bismarck, N. D. GET A SAFETY DEPOSIT BOX NOW ute provided that action may be maine| tained in the name of the State of ‘North Dakota doing business as the | Bank of North Dakota, and ‘asks: ‘Why the need of any pan handle to ‘the name of.the state, if the bank is (the state? Judge Bronson cited the i gtate bonding fund, under the man- agement and control of the commis- sioner of insufance, and points to de- | cisions to the effect that the-commis- sionér may be sued and judgments rendered against the fund, He also | cited the.U.'S. Shipping Board Emer- ' gency Fleet corporation created by the i United States with a capital stock of | $50,000,000, all owned by the United | States. He cited U. S. decisions quot-| fed in the ‘majority opinion “that it must be regarded as an entity separ- ate from the United States.” - Judge Bronson’ refers to the case of the State v. Hall, in which Judge ‘Grace, in the vpinion of the court, i upheld the state’in its contention that ithe debt limit of the state was $2,000,- | 000. He further. referred to Judge Grace’s characterization ini the same opinion of the Bank of North Dakota as a fiscal agency. Recognizes Limit. “Does not this opinion both recog> nize a constitutional debt Mmit and the Bank of North, Dakota as an | i i | TRAINED MEN FOR _ ACCOUNTING FIRM Bishop Brisman Company, Cer- tified Public Accountants, can use only high grade men in their work. The latest addition to their Fargo office is W. M. Lockhart, graduate j of Dakota Business College, of that ; city. He is the third) D. B. C. | pupil on their staff. | Lillian Winje is the sixth D. B. | C. student employed by Rupert- Warner Insurance Agency. Every Fargo bank and 685 others now ; have Dakota-trained assistants. | “Follow the Succe$$ful.”” Enroll | now for Spring term. Write for i information toF. L. Watkins, Pres., | 806 Front St., Fargo, N. D, | Service ., ARM | CUINTOCK CO VPOELIS. MINN Burglar Alarm System which as well as to do your }agency? agel asked Judge Bronson. Con- tinuing, he says: “If every act of the Bank of North Dakota is the act of the state itself, if every obligation and indebtedness created is the obliga- tion and, indebtedness of the state it- self, how can there be any escape from_ the, conclusion that the Bank} Act must necessarily operate contrary | to the constitution of this state, both with reference to indebtedness created | or to be created not warranted by constitutional provisions, and, with reference to loans to private individ-! uals or private corporations? | Reterring to the loan of $1,000,000 | made of a Chicago financial house by | the Bank of North Dakota, the pur- chase of bonds by the bank, Justice | Bronson asks the question? “What may be said of .a judicial! promulgation which would state io the people of this state that indebted- ness without limit or to any extent might be incurred by the Bank of! North Dakota as the direct obligation ! of the state in defiance’ of, such con-| stitutional provisions? Can the Bank of North Dakota, representing the state, as such, engage ‘in contracts, create indebtedness, make loans and do things that the state itself cannot do directly by reason of constitutional inhibitions? Complaint is made that | the majority opinion’ has quoted de- cisions concerning state banks of the south which concern corporations cre- ated as such. Do not these decisions demonstrate that the sovereign power may create an agency, a sovereign agency, and give to such agency 4 status and that it is not necessary that it be termed a corporation in or- der that it do have the status of an| Does it not sufficiently ap- pear that, necessarily, the Bank Act does create an agency of the sover- eign power engaged in an enterpris>| with a distinct status as such, neces- Do You Knowa Baby Sick ~ With Constipation Syrup Pepsin. N° thoughtful mother with children in the house will risk being without a good, reliable laxative. It will save many a serious illness, many a doctor's visit. 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Write me today. business “in order to prevent this loss, which is fast bankrupting the farmers of this state.” business, in its sovereign capacity, and this in pursance of Article 185 of the Constitution as amended, and Chapter 147 and laws supplementary sarily so to be regarded, in order that the. constitutional provisions and the will of the people expressed) in the legislative act may function in the en- terprises designated?” Justice Grace Dissents, Judge Grace, further dissenting. says that the majority opinion in et- fect declares the Bank of North Da- kota private banking institution and the decision has been so interpreted by the public press and others, He denies this is correct, declaring the State of North Dakota is directly en- gaged in business. le asks the question: ‘When $1,- 000,000 was borrowed in Chicago and a note given therefor, was such note a direct indebtedness of the state, or of the bank?” “The. answer is clear,” he - says, “that it was the indebtedness of the state, for it is the State of North Da- kota that is engaged in the banking First thereof. No other answer is possible.” He declares that the bonds put up as collateral for this note were the property of the State of North Da- kota, in its sovereign capacity. Quotes Kail Status. He quotes the status of the raii- roads under government control as supporting his position, declaring that the United States, in its sovereign ca- pacity, went into the railroad busi- ness. i Judge Grace reviews the arguments advanced by him in his grat dissent- ing opinion, taking the position throughout that the State of North Dakota elected to enter into such bus- iness, He refers in his concluding re- marks to the decline in agricultural prices, which he calls a direct tax up- on the farmers, and says it has caused them to migrate to cities to enable them to make a livelihood, and de- clares that the state elected to go into “No-To-Bac” has helped thousands to break the costly, nerve-shattering tobacco habit. Whenever you have a longing for a cigarette, cigar, pipe, or for a chew, just. place a harmless No-To-Bac tablet in your mouth in- stead, to help relieve that awful de- sire. Shortly the habit may be com- pletely broken, and you are better off mentally, physically, financially. It’s 80 easy, So sithple. Get a box of No- To-Bac and jf it doesn’t release you from all craving for tobacco in any form, your druggist will refund your money without question. ASOLINE is the major product made by the Standard Oil Company (Indi- ana) and in the manufacture of this most essential product of petroleum, this Company stands in the lead. But gasoline is only one of the many prod- ucts sent to the world with the unqualified guarantee of this organization; for as a manufacturer of lubricants it stands among the. leaders. 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