Daily Democrat, Volume 1, Number 46, Decatur, Adams County, 5 March 1903 — Page 1

Blume i

SENATE CONVENES Special Session Bagan at Noon Today. No to Smoot of Utah. I Thirteen New Senators Take Oath of Office. q,.-el*J tn Daily Democrat. 3:00 P. M Wellington.D. (’.March:: *»,. n Batemetiu extraordinary session at noonlodav. The oath of office was admin *red to thirteen nets sei.at ramong these being Smoot of Utah. Noßfej* etion was made when his name was called. The president sent in the nomination of .1.1) Cm: . (colored to be U. S. collector at Port Charleston, S. C. This is his second noottat;on, the senate at session just clored having failed to confirm him. TO SAVE POWERS. Mrs. Lulie Clay Soliciting Funds For Caleb Powers Trial. With ill the fire and entim-M-eu >3 areal s itherner aroused. Mrs. Lulie Clay Br ,of Kentucky, is telling the life story of Caleb Powers anil soliciting funds with which to continue tin fight he is making for liberty. Sh e has completed a canvass of Kentucky and is now in Indianapolis. Mr Brock is remarkable in more wa vs than one. She is forty fouyyea' >ld, she says, yet she looks twenty J ears younger. Her hair is as black as a raven. Her eyes bis and express! & filled with a strange light whgn ah • dks of Powers’s early days, but whc she speaks of his trials they become > arker still and almost fierce. She is jdevoting her life to the man who Was twice convicted and scnter.e ed to lif. imprisonment on a charge of eomp icity in the pl< tt. -- i..:te Govwnor 1 loeble. She is a democrat, but adrtr g anti-Goebleite. FOUR MORE. Another Bunch of Hoboes Initiated Today. Marsh Cordua and the night police rounded up four mon* tramps last evening, and three of them will do street duty for the next few days, one man wa- discharged. One of the three isicharged with plain drunk and theothei two with vagrancy. The former fca.s fined a dollar and costs and the latter five and trimmings, amounting to fourteen dollars or two weeks with the street gang. The trial occurred t: 3uire James H. Smith and lasted moment•reatment is the only way to rid the city of regee objectionable characters and it will be surprising how fast the news will travel and every tramp in the country knows that Decatur is a tough plac • for them to strike. The officer* gre doing their duty. NEW LEGISLATION. Cowty Jhenffs Will Now Draw Their Salaries in Full. County ■'herifTs over the state are happy O ver a new law just signed by the governor which gives* them their • salary Sather the fees collect'd are sufficient or not. Under the old law ‘f did not amount to suffi ciont to pay the salary the sherill* List a ßd that nearly every one J them in the state were short. I nder the law ju.-t passt d they get the full amount of their salaries, and if the feea arMosuilieient. the remainder is [’aid the county officer’s fund, tn thwnoimty it is a battle r-o il for the sheriff io make his slaarv but now all unosrt : ties cease, and Sheriff Butler has the assurance that at the end of the year he w ill have made las ’’tipulam salary.

The Daily Democrat.

THE LEGISLATURE. Business is Brisk During the Closing Days. The Gard fee and salary bill was | passed by the house yesterday afternoon, but so changed that no i one would recognize it. As passed it affects recorders only, giving them heir present salary and 30 per cent. ; of fees over present salary. All moneys shall be paid quarterly into the general funds. No recorder is to receive less than §7OO. The bill becomes effective the first Monday in wpnl. The Wright voting machine i bill was passed and is now in the hands of the governor. It makes the j use of voting machines compulsory : m the counties of Marion, Vanderuurg, Allen and \ igo. The senate spent nearly the entire afternoon on the general appropriation bill and lopped 870.000 from it. Os this the state lost 86,500; Plainfield reformatory 820,000; Indiana university $28,- ' 000, and 820,000 in claims were taken I off. The governor signed the Kimball bill, directing county commissioners to pay county officers the salary fixed by law where the fees do not amount to the salary. ANOTHER LINE. Representatives of a New Company Here. Taking Right-of-Ways for a Line From Springfield, Ohio, to Fort Wavne. Another electric line would like to come through Decatur and Adams county and the promoters who realize the benefits to be realized from a traction road through this section means are here and say they mean business. The party consists of Messrs. John H. Koenig and Willis Armstrong, t’t. Marys, Ohio, B. A. Fledderyoham and W. H. Fledderyoham, New Knoxville. Ohio. They came to town yesterday afternon and registered at the Burt House. Two of the party left this afternoon while the other two will remain here and proceed to secure right of ways on the proposed route. The line will run from Springfield to Rockford, from there to Chattanooga, thence to Salem and into this city on the pike road. From here they will run to Monmouth, thence to Fort Wavne on the old road. The line will be secured at once if the franchises and right of ways can be secured and the product will then be financed and work begun as soon as possible. The gentlemen mean business and say this road will lie the first through this county. They have employed H. H. Harruff of this city, who will assist them in securing their desired privileges over the proposed routes. FACTORY NEWS. Machinery for Glove Company on Road. Mr. Wearing informs us that his building here is in good repair and arrangements have been completed for his machinery which will begin to arrive today or tomorrow. The gas engine left Beloit. Wisconsin last Saturday. The dynamo and three meters were shipped from Three I Rivers. Michigan. Friday. The die press left Boston. February 18 and is ' still on the road though the bill has | I lieen here for nearly a week. It is I believed the wheels will be moving in another week. WILL IMPROVE. Beery & Holthouse to Remodle Stables Soon. The big barn now occupied by I the liverv outfit of Beery A Holthouse, is to lie" extensively remedied this | coming business season. According to present contemplations the second story will lx* built back to the alley, which will be an addition of near 5,(MX) square feet. Tiiis move is very necessary as many tons of hay and grain must be stored away to feed the great ntimlier of horses which they stable. Other interior improvements are to be made at the same time will add greatly to the convenience and appearance of the big barn.

DECATUR, INDIANA, THURSDAY EVENING, MARCH 5, 1903.

THE CASE DECIDED Verdict in Peter Holthouse Ditch Case. I JUDGE ERWIN DECIDES IN FAVOR OF THE DEMONSTRATORS. . The Legal Battle Lasted Twenty-Five Days.- Opinion Given in Full. ) Judge Erwin this morning rendered his decision in the famous Peter Holtj house, ex parte, ditch case, which was begun in the circuit court here on Wednesday morning, November 19, > and continued twenty-five days, being one of the hardest fought legal battles in the county’s history. The petitioner. Peter Holthouse was represented I by Attorneys R. S. Peterson. Schafer i Peterson, C. J. Lutz and J. C. Moran and the remonstrators by D. D. Heller & Son and Merryman & Sutton. Judgment for costs was rendered against the petitioner. A complete 1 history of the case is given in the judge’s decision which follows in full I as read this morning: This is an action began in the commissioners’ court of Adams county, Indiana, by a petition filed in the regular order by Peter Holthouse on the 17th day of August, 1901, praying for ' the construction of a drain or ditch beginning at a point which is fortyeight (48) rods south of a point forty I (40) rods east of the northeast corner [ of section four (4) in township twenty- [ seven (27) north, range thirteen (13) east in Adams county. Indiana; run- , ning thence down and along the me- ; anderings of a ditch or water course, , heretofore located and known as the Pete Holthouse ditch, to the St. Marys river, and there terminates at a point sixty (60) rods east of a point which is forty ( 40) rods south of the center of section twenty-eight (28), in township twenty eight (28) north of range fourteen (14) east in Adams county, Indiana. To this petition various and numer ous parties interested filed before said , commissioners, on the 4th day of December, 1901, a remonstrance against said proposed improvement and such proceedings were had therein as that the said commissioners did, on the I Sth day of February, 1902, make an order establishing said proposed drain. From this action of the board the remonstrators have appealed to this court. One question raised in this court is, that no assessments were made by the viewers or reviewers for the purpose of raising funds for the construction of the drain. It will not be necessary for the l court to decide what effect the failure to make such assessment would have had had there been no appeal. Tn the case of Manor vs the Board of Commissioners of Jay county, decided in the 137 Indiana, page 367, I the same question was raised but in a different manner. In that case the I committee appointed to make assessments did so without an actual view. The supreme court says, in passing on a petition for a re hearing. “We held, in the original opinion, that the report of the committee was superseded by the appeal, and that it did not make any difference how the committee reached their conclusions, whether by proper or improper methods," and ( they cite in support of that proposition Black vs Thomson, 107 Indiana, 162, and other authorities. It matters not how’ irregular the proceedings were on the part of the I viewers or reviewers, the proceedings were vacated by the appeal to the cir [ cuit court, where the case stood i for trial de novo and not, as in i an appellate court for the review and I correction of errors, McMullen vs state ex rel, 105 Indiana, p 334. Fleming vs Hight, 95 Indiana, 78; Munson vs Blake, 101 Indiana, 78. This cause being for trial de novo, then this court necessarily takes the cause as the board of commissioners took it originally, and acts the part of the commissioners, the viewers and reviewers and must pass upon the j cause, not from actual view of the premises, as the viewers did, but from the evidence produced on the trial. To establish this proposed work it will be necessary for the court to find from the evidence in the cause, Ist, what amount of work there will be to do. and 2nd, what would lie the cost of doing the proposed work according to the plans submitted in this cause. In this case it is shown by the evidence that from station 530 to station 772 there is all along, on both sides of the proposed drain, large amounts of growing timber, in some places so thick, as one witness put it, “that a

carp could hardly get through.” It ll*as also been shown that on said portion of the drain there are large drifts of timber, stones and rubbish, yet with this condition of things shown [ to exist, there has been no evidence I i produced in the cause to show what I amount of labor it would take to re- • move the timber, drifts or rubbish, or I any estimate of the probable cost of 1 same. Without the court knowing the probable cost of constructing the | drain, cleaning the drifts and timber, etc., it would be impossible for the court to make assessments covering the same, The only evidence in the cause as to the probable cost of con- [ structing the proposed work is that of W. E. Fulk, who testified that[ there would be probably many cubic yards of dirt to be removed aud that ■ the probable cost would be twenty- ' five cents to thirty cents per cubic I yArd. However, a more serious matter' confronts the court in this cause. In j the map of the proposed ditch and , the lands affected thereby, which map is a part of the evidence in the cause and is marked exhibit “B,” it is shown I that the proposed drain enters and passes upon the southeast quarter of j the southwest quarter of section thir- J ty-three (33,) in township twenty-eight (28) north, range fourteen (14) east, and appearing on the map in the [ name of Rev. Joseph Rademaker and I I designated as the Catholic cemetery j los and containing forty (40) acres. I In the report of the viewers and reviewers, and the notice given, this | land nowhere appears, nor is the owner’s name mentioned, neither does the description of the real estate appear in any of the proceedings as belonging to any person whatever. The I map referred to and the description lof the ditch show that the proposed [ drain enters upon and crosses this [ real estate. The statutes, under which this drain I jis sought to be established, requires j that all persons upon whose lands the drain is to lie established shall be made a party to the proceedings. This is done by giving the notice as required by the statutes. In the notice given in this cause there is no reference to this land nor to the owner of the same. In the case of Wright vs Wilson, 95 Indiana, commencing on page 408, the court, speaking through Judge Bert, on page 413, say, “An application to establish a ditch is in the nature of a proceeding in rem, and in order to authorize the court to make an order, the person upon whose land the ditch is to be constructed must be before the court, either by notice or by appearance, and unless they are, the court can make no valid order concerning them. This is elementary and is too plain to justify further discussion or the citature of authorities. The court in such case having no authority to make an order against such persons, it can make none against those who are before the court. The reason is obvious; the ditch is an entire thing, and in order to establish it, the court must have all who are necessary parties before it. Ordinarily’ any objection to the process, or its service, must be made before appearance to the action, and this rule applies in this case so far as the notice operates as a process upon the peison, but not so far as it is essential to give jurisdiction to the subject matter of the action. The petition and the report of the viewers, together should show the land upon which the ditch is to be established, and the notice of ' the auditor should contain the names I of the owners. This done, the court acquires juris- I ' diction to establish such ditch, but I not a ditch upon the lands of some ■ [person who has not been made a party to the proceedings, and hence if [ such fact appears upon the trial, it! bars the establishing of the ditch. Neither Bishop Rademaker or his successor in office have in auy way ' I lieeii made a party to this action, I either by notice actual or constructive, nor by appearance to this cause, nor is the land in question in auy way referred to or mentioned. Why this particular piece of land should have been overlooked by the viewers in their report, I am unable to determine. The county map shows | it, as does also the map prepared by the engineer of all the lands affected by the proposed drain, yet it nowhere appears in auy description of the proposeci drainage or any lands affected , thereby. If the notice and report ( showed that the southeast quarter of ( section thirty-three (33,) township ' twenty-eight (28) north, range four teen (14) east, was affected by the I drainage, or even if the same gave [ 1 notice to the owner or some person in ' whose name the same appears, it ( might lie sufficient. I am under the impression that the , reason the same has not been includ , ed in the report or notice is from the I ( fact that the same is not upon the , duplicate for taxation, and hence has , been overlooked by all parties con- | cerned and if the drain did not pro , pose to pass over the land it would , not lie very material. But the* pro- , ceedings being one, like the establish- , ingaroad or highway, a street or , alley, to use a part of the land and ( convert it to the use i f the public. , the same could not lie done under the j constitution, unless by due process of ,

law, and that process not having been followed, it must follow that the same cannot be taken, and if it cannot be taken, no drain can be established. It therefore follows, that the board lof commissioners had no jurisdiction iof the entire subject matter, on acj count of proper notice, for the reasons heretofore stated, this court could I take no more jurisdiction than had the commissioners, aud the finding must be for the remonstrators and against the proposed improvement. ARE OUT AGAIN — Representatives Leave for Linn Grove. Well Satisfied With the Country Between Here and Van Wert. j E. M. Hill of Toledo, and W. E. [ Fulk of this city, who represent the ’ Morgan syndicate and who are looking over the country hereabouts to decide on the best route for their electric line, returned from a two days trip last evening. They went to Van Wert over one road and returned another, going over the routes as men tioned a few days ago excepting on the return trip, when they came in past the Lower and Studabaker farms i instead of the township road. They j were well pleased with the country \ and the opportunities and while they have practically decided on the route which they believe the most practical, they would not make the same public for a day or so yet, when they 1 will give the entire route through the ! county. They left this morning, going west to the Beery church, from j there south to the L. C. Pease, thence west to Honduras and from there south to Linn Grove, where they will arrive tonight. Tomorrow they will .select mud roads for the greater part of the way as they find the farmers along the same more anxious than on the gravel roads. Mr. Hill is delighted with the country and people of this community and says there is no reason on earth why the line should not be built. DATES MIXED. The Berne Barbecue Indefinitely Postponed. After a complete and thorough advertising for thirty miles around Berne, it was discovered this morning that the license of George L. Nichols expires at midnight Friday night, instead of at that time Saturday night. This put a different aspect upon the event of Saturday, so the whole thing was called off. and there will be no barbecue or killing of the fatted calf, in Berne on Saturday. The license ! spoken of "dates from March 7, 1102,' . for one year, and under all construe- I tions of the law, that year ends with the beginning of March 7, 1903. Had this construction of the time been conI sidered sooner the barbecue would j have come off on Friday instead of the ! day following. There seems not to jbe much question about the validity: and smeess of the blanket remon strance tiled against the granting of a ' liquor license in Berne, and in all i probability by Saturday morning they ! will waken up dry. NEW DISCOVERY. Cholera Infantum to be Successfully Treated by Medical Science. Another great discovery, the anti-j toxin, which will destroy the germs of I cholera infantum, has been announc-1 ed by Dr. Simon Flexner, director of I the Rockefeller Institute of Medical j I Research. It was the death of his [ grandson thatturned Mr. Rockefeller’s ' attention to the absolute inability of I the medical profession to cope with j this disease that annually carries off I many thousand of children and result[ed in the plans of the establishment I iof the laboratory and hospital that is I to be built in New York. Last’ fall , the announcement that two students of the Johns Hopkins Medical School I had discovered the germ which caused | tiie death of millions ot children war: received. The energies of the inves tigation were then directed toward the discovery of a serum which would distroy the bacilli. Dr. Flexner has declared that liefore the end of 1903 the antitoxin would lie ready for practical use and will la* given to the world.

NUMBER 46

IN POLITICS. A Movimcnt To Oust Bryanism From The Democratic Party. The Brooklyn Eagle publishes an i article declaring that former Senator j David B. Hill has been secretly ori ganizing a movement to oust Brsanism from the democratic party. The issue is to be carried into the’ south and west, one of the principal battlegrounds being Nebraska. It is purposed to crush Bryan’s influence in his own state and prevent at all costs , his control of the Nebraskan dologa tion in the next democratic national j convention. Since Mr. Bryan’s eastern trip the last chance for amicable adjustment, it says, has disappeared. Associated with Mr. Hill in the un dertaking are said to be former Sec retary of War Daniel S. Lamont, , [ former Secretary of the Nayy William C. Whitney, former President Grover Cleveland, Hugh MeLaugh ‘ lin, leader of King’s county; Senator I Gorman, of Maryland, and former [ Secretary of State Richard Olney, of Massachusetts. The reorganizers look to the south, they say, and the movej ment is in the interest of Judge Alton P. Parker’s candidacy. Conferences ' have been planned with Mayor Har ' rison of Chicago, in the hope of tak- : ing Illinois out of the Bryan column, and a vigorous fight will be made on Tom L. Johnson in Ohio. THE RESULT. Indiana Richly Rewarded by the FiftySeventh Congress. Indiana got a great deal out of the Fifty-seventh congress. Some of the mere important things are: New public buildings for Anderson, Mun cie, Richmond, Vincennes, Elkhart, Hammond, Logansport and Craw fordsville. Sites for a new public building at Bedford and Marion. Limit of cost of new Federal building at Indianapolis increased by 8400,000. Authorization of the secretary of war to sell the I niteil States arsenal grounds at Indianapolis and to reinvest the proceeds in securing a site for j a large army post near the same city, j Substantial appropriation for the im- [ provement of the Ohio river, the lower Wabash and the harbor at Michigan City. More private pensions than any i other single state. Rapid extension : of rural free delivery of mail by reason of the increased appropriation. An appropriation of 8150,000 with which to complete the purchase of the army post site and to begin improvements. A large appropriation for additional buildings and improvements at the National Soldiers’ Home at Marion. MORE JOHNSON. Manson U. Johnson to be Given Another Turn in Court. Manson U. Johnson has again ap- | poared in the public eye as a defendant in a suit for an accounting, filed sin the circuit court, by the Peck A \\ illiamson Heating company of Cincinnati. The township of Wayne, Marion county, Frank McCaslin,’the trustee, and Moses Rosenthal of Peru, | are named as co defendands. This is I another case in which Johnson is | charged with making a contract for a I heating system aud making more than one assignment of accounts. I Trustee McCaslin made a contract j with Johnson to install heaters in a Wayne township school. He put in i the heaters and assigned the account [to the Peck-Williamson company. I Moses Rosenthal says he holds the same account. The question arises as |to owns the account, aud the Peck I W illiamson company asks for 8500 [ alleged to lx* due. Johnson has sev [oral similar suits against him in Indi I ana. He was once a member of the legislature from Marion county, but lives in Anderson. K. OF P. NOTICE. Something Doing at Castle Hall This Evening. The presence of every member of the K. of I’. lodge is requested at Castle Hall tonight. Something doing in degree work. Remember the meeting is tonight sure and don't put it off. You are wanted.