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The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, November 17, 1903, Image 5

Image and text provided by Montana Historical Society; Helena, MT

Persistent link: https://chroniclingamerica.loc.gov/lccn/sn83025294/1903-11-17/ed-1/seq-5/

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JUDGE CLANCY HAS
TAKEN UP HEARING
CONTEMPT MATTER IN THE PENN
SYLVANIA CASE COMES UP
BEFORE HIS HONOR.
CONTINUED UNTIL THURSDAY
Inspeotion Is to Be Made in the Mean
time-Valuable Ledges Are In
volved in the Prooeedings.
(Continued from Pase One.)
you felt disqualified to try other contempt
matters in this litigation. I don't know
just what your honor's disqualification is,
but I think if you are disqualified in one
matter, you are in the other."
"No, there's no difference," said the
court. "On the evening of the day you
presented your order, Mr.--I don't know
what his name was-he came to my house
with papers. He had the affidavit of Al
fred Frank. He talked a great deal. Then
you came here with your sworn statement.
"I don't know anything about the mat
ter, except that they were having a fight
down there-throwing hot and cold water
on each other. I haven't got my mind
made up on this matter. I don't know any
thing about it.
"The county attorney ought to prosecute
those people on the charge of drawing a
deadly weapon. I don't feel that I'm dis
qualified about this. Of course, I'd like
to call in another judge to try this case
and all these cases.
"But I have not made my mind up on
this. I got Judge Clements over a long
distance telephone yesterday, and he said
he would come over here on November
24 and hear those other matters."
Mr. Forbis then said:
"So your honor will go ahead and re
fuse to disqualify yourself in this case?"
"Oh, yes," said the court.
"Well, then we desire to make a moo
tion to quash this proceeding," returned
Mr. Forbis.
-Mr. Forbis then read the affidavit of
Heinze's superintendent of the Rarus
mine, J. H. Trerise, which forms the foun
dation of the contempt charge being heard,
and called attention to defects in it which
made it, in Mr. Forbis' opinion, insufficient
to support the charge.
Mr. Forbis called attention to the fact
that the affidavit merely referred to the
deeree of judgment renderea in the Penn
sylvania case, the present suit before the
court, and merely referred to the injunc
tion in the case. He also pointed out
that the planes of the injunctions were
not even described in the affidavit.
He also said that the decree of Judge
Clancy was referred to in the affidavit,
but that Trerise made no mention of the
modified decree from the supreme court.
Mr. Fo.'bis called the court's attention
to the fact that the ore bodies the de
fendants are charged with mining against
the injunction in the suit were in the Bos
ton & 'Montana company's possession when
Judge Clancy decided the case.
Hie said that the officers of the Boston
& Montana company and the company were
charged with mining on six levels of the
Pennsylvania minle, but no definite places
were pointed out.
"It is not charged in the affidavit that
we knew the ore bodies we were mining had
been adjudged to belong to the plaintiff,"
said Mr. Forbis.
"It is also charged that because we pre
vented the plaintiffs from coming into our
workings we thus violated the injunction,"
added Mr. Forbis.
After this Mr. Forbis told the court that
lie would read his written motion to quash,
and he read the motion, giving the grounds
upon which it was based.
The first ground was that the affidavit
of Trerise was insufficient, and did not
show a contempt of court by the defend
ants: the second ground was that Trerise
"Could Not Walk Across the [loor-
Not Another Month to Live"
S. B. Whitmire, in Business at Floyd Springs, Ga., All Broken Down in
Health, Suffering from Severe Hemorrhages and Nervousness,
Completely Cured by
Duffy's Pure Malt Whiskey
Gained 42 Pounds, Is Now in Perfect
Health and Able to Dothe Hardest
Kind of Work Without Tiring.
"I went pal to pieces from overwork in the
Spring of agot, and I could not walk across the
floor I was so weak; felt I could not live
another month. I suffered from hemorrhages
of the lungs, which no medicine had been able
to stop. Finally Duffy's Pure Malt Whiskey
was prescribed for me by my doctors. It com.
pletely cured me and has kept me in perfect
health ever since. I have gained 42 pounds in
weight, have had no hemorrhages and am no
longer nervous. I am strong enough to climb
the mountains all day long to look after the
men working on my tanbark and to keep track
of my loghaulers. When I began taking your
medicine I was in a most miserable condition.
There can he no question but that.I OWE
MY COMPIILETE RECOVERY TO DUF.
FY'S PURE MALT WIIISKEY. My doc.
tor, my minister and neighbors for miles
around are acquainted with the great benefit
that Duffy's has been to me. Several of mny
neighbors are now using Duffy's with splendid
results."-S. E. \VWH1TMIRE.
Sustains Overworked Men and Women
Duffy's Pure Malt Whiskey overcomes general debility, exhaustion and weakness, from
whatever cause. It is always prescribed by doctors for brokendown men, delicate women
and sickly children. It is an absolutely pure, gentle and invigorating stimulant and tonic;
builds, up the nerve tissues; tones up the heart; gives power to the brain, strength and
elasticity to the muscles and richness to the blood. It brings into action all the vital
forces; it makes digestion perfect and enables one to get from food all the nourishment it
contains. It is a promoter of health and longevity-makes the old young and keeps the
young strong.
Duffy's P'ure Malt Whiskey cures coughs, colds, consumption, grip, bronchitis, catarrh,
pleurisy, pneumonia and all diseases of the throat and lungs; nervousness, malaria and all
low fevers. More than 7,000 physicians prescribe it regularly and it is used exclusively ini
ovcr'.,ooo hospitals. Duffy's is the only whiskey recognized by the Government as a med*.
cine. This in itself is a guarantee.
CAUTION.--When you ask for Duffy's Pure Malt Whiskey be sure you.
get the genuine. Unscrupulous dealers, mindful of the excellence of this
preparation, will try to sell you cheap imitations and malt whiskey substi
tutes, which are put on the market for profit only, and which, far from re
lieving the sick, are positively harmful. Demand "Duff s" and be sure you
get it. It is the only absolutely pure Malt Whiskey which contains medici
nal, health-giving qualities, Duffy's Pure Malt Whiskey is sold in sealed
bottles only; never in flask or bulk. Look for the trade-mark, the *"Old
Chemist," on the label, and be certain the seal over the cork is unbroken.
Beware of refilled bottles.
Sold by all druggists and grocers, or direct. Interesting medical booklet postpaid to any
address, DUFF'Y MALT W1IISKEY CO., Rochester, N. Y.
Montana Liquor Company, State Selling Agents, Eutte, Mont.
Bargain
ao Days
Our Thanks jivin Sale
Is a Hummer and Don't You Forget It
Yesterday was the first day of our IOday Thanksgiving Sale, and It was a corker. Business started from
the time the doors were opened, and kept up until closing time. The nine days' wonder starts this morning.
Of all the sueeessful sales we have ever had, none set the pace this has, The fact is we have about $250, 000
worth of merchandise more than we want, and we are willing to make and are making great sacrifices to
clear our counters and shelves of this surplus stock. Buy now, and you will have cause for thanksgiving.
See What We Are Doing on Our 2d Floor
There are many in BItte who are kicking- kicking nostly bIecause we are doing the hllsiness of Bllutte. Why
should we not, when we are giving more for your money than you can get elsewhere: You can see this fact highly
exemplified on this second floor. The rush of customers for some of the lines advertised yostorday wonil have
knocked many of the croakers silly. We are doing this big business simply because we desire to do so. It's merely
the question of the survival of the fittest.
h ex ldren's $11.75 ZIbelne loth Goat for $2.75 c /
velvet medallions; colorings are blue, rod and brown; nizen 4 to 1.1 years. ('hoice of these, lilltc $4.7.1 .,,tsi for $2.7,5.
Women's New Zibeline eollarless eoats for $3.15
Sounds like a fairy tale, but it's no liction--this now collarless coat for $3.15. It's a beauty; nmade of line wi;ter \
weight zibelino, with four-inch tailor stitched collar effect, tailored ttah bulttoned olrfect, tailored cullt's, full Iack and
S -' stitched edges.
Children's 6oats at $1.145 Misses' Tailored Skirts at $1.85 Women's Underwear at 55c
Made of good heavy weight eiderdown, with extra Stylish walking skirts, in gray herringbone and nar- This Lcaught tho eye of Immanty yesterday, uandl mIany
full cape and trimmed with Angora fur; colorings are row blue striped effect, with now side plaitings, tail- suits were sold, yet we hlave quite a few union suits,
white, blue and red, sizes 1 to 4. Special sale price, ored buttons to match and seven rows tailored stitch- drawers and tights, wortl'h tip to $l.q0t and $2.0c' that
only $1.45 each. ing around bottom. we will oll'er today at .,tc.
Women's Corsets, at 25c Fine Fur Garments Dressing Sacques at 15c
These shapely models took the fancy of many yester- Now you're sorry you didn't buy our furs Ilst week. New flanneletteo dressing sc/.qu(s in pink, green, tan
day, and it's only a question of a few hours, and all Many new and stylish garments here and soveoral very and blu with colored stripes. Made with front and
will be gone. Made of jean in gray and white with pretty scarfs at very low prices. Our two years' gunr- hack yokes of nnarrow tucks, full sleeves, tailored cullts.
straight front and shaped hips. antee goes with every garment. Sale pric"e only lI5ce tech, and really worthl $1.()0
had set up several distinct charges of
contempt, and that they should have l,een
kept separate; the third ground was that
it was insuflicient because it did not defi
nitely describe the ore bodies.
The fourth ground of insufficiency was
that the vein described in Judge Clancy's
decree as belonging to the plaintitf was
not described so it might be recognized;
the fifth ground of objection was that
the proceeding was an attempt to try the
title to ore bodies by a contempt proceed
ing, and that that could not le done under
the law.
The sixth objection was that the veins
mined by the defendants have been de
veloped since the court decided the Penn
sylvania case and said what veins were
and what were not lleinze's, and the af
fidavit did not make it appear that the
defendants have mined any veins referred
to in the decree.
Other objections to the affidavit were
that it did not say when and where the
alleged contempt was committed, nor de
scribe the acts of the defendants.
The lawyer advanced, as another ground
of objection, that the veins the defend
ants were charged with mining were not
properly described so as to definitely
identify them and said that the decree in
the case contains no reference to veins
below the gotu level from the Rarus shaft
and does not name the ore bodies below
that level.
\V'hent he had finished naming the
grounds of the motion, Mr. Forbis pointed
out to the court the relevancy of the
grounds to Mr. Trerise's affidavit. lie
contended that all charges of contempt
should be and must he set forth in full
and that the injunction and the decree in
the case must be set forth in full.
Mr. Forbis said that the defendant comn
lpany had been in possession of the 'enmn
sylvania mine and the veins since the time
of the issuance of the decree and that the
contempt proceeding was an attempt of the
plaintiff to come in to court atd dispossess
it of the ore bodies.
"Practically they are attempting to oust
uts fromt possession of ore bodies we were
in possession of and mining at the time the
decree was issued. Tlhis opens up the
trial of the case again. In this contempt
proceeding the court is asked to determine
whether or not No. 3 and No. 7 veins are
a part of the Johnstown Discovery vein.
That can't be done in a contempt proceed
ing.
"This decree determined the title to the
veins not in possession of either party.
An action to quiet title cannot be main
tained to quiet title to veins in our pos
session.
"They cannot come in here four years
after the decree has been entered and say
we are in contempt for mining ore bodies
we were in possssion of at the time the
decree was entered." said Mr. Forbis.
Attorney Denny for Hleinze replied to
the objections raised by the mnotion to
quash, and took an opposite view of what
Trerise's affidavit should set forth. In his
view the affidavit was suflicient. In taking
up the proposition that the affidavit im
properly joined several contempts in one,
he said that Mr. Forbis had taken the re
verse side in an argument in the supreme
court.
Mr. Forbis replied to that charge with
the explanation that the cases were ab
solutely different for the reason that in the
case before the supreme court the lines of
the enjoined ground were clearly defined,
whereas in this matter they are not. He
had argued in the matter before the su
pretne court that a contempt proceeding
was the proper action by which to enforce
the injunction before the court then.
"If the plaintiffs had clearly defined
lines a contempt proceeding would be per
fectly proper, as I said there," said Mr.
Forbis, "But they are attempting in this
case to make a contempt proceeding serve
as an action in ejectment. They want to
dispossess us of property which we held
when the decree was entered and which we
hold now.
"We contend, and shall contend through
out this hearing, that they cannot use a
contempt proceeding to adjudicate title to
ore bodies or to eject us from possession.
"They are not willing to come in here
and contest the question of ownership.
No; they want to hang onto the injunction
from your honor and spread it, fan-like,
over the whole country.
"The supreme court did not say a con
tempt proceeding was proper to adjudicate
a title or to eject a man from ore bodies.
It said that that was proper where there
was a plain contempt by a plain violation
of a definitely stated injunction.
"If they can extend your honor's decree
a foot they can extend it t,ooo feet to the
south and take in the whole Pennsylvania
claim and all the country south of it.
They've taken nearly all the Pennsylvania
claim now and yet they come in here and
pretend that it Is an unheard of thing that
a man should claim the ore bodies he finds
in his own claim.
"We say it is an astound.ng thing for
them to come in here and attempt to take
our property from us or to adjudicate the
title to the ore bodies Iby a contempt pro
ceeding, without framing issues or giving
us a chance to meet them. They'll find
they cannot do that under the law.
"So, if it please the court, the affidavit
is not nearly sufficient and we submit that
the proceedings should be quashed," con
cluded Mr. Forbis.
The court then gave his views as fol
lows: "I think I understand this very
wt:ll, gitIcitlImen. Thi calve is atlTot thi,
that the Montana Urc l'trcthasig cout
pally is proceeding agaist thie dtienldIt;llalt
for trespassing or takinig ore from witlhin
the lines of that decree and my under
standing is that it's not necessary ill set
up a decree or deed. They call Iie re
ferred to and put in evidenc'e.
"About this other point. 'I his i a
quasi-criminal piroceelding. I Ielieve that
is adutitted, and this is of a lesser char
acter of crime thallt a fhelony; it is a liJs
4ctmeanor.
LllYou can see by antalgies of the law,
whtere a defendiant is chtartged S iti vio
lptiig a liquor law. hie imay he charged
with setlling oIc pinit of bert, al ore.
l)int of whisky andI on- botItlte o, wine; if
joit cati pirove oe of the:se things there
is a conviction. If you charge them aill
totIther there is onily one ol'ttlse. hut if
he stl-I John Smith a pinit of hbraindy on
oil,' dlay and John Jones a quatt of l'er
ticre aIri. several cha;rgecs, itil m )y th:lat nli -
alu}y I think it is not necessary to iatie
every level of the mitne.
"If you did each woutld Ibe a a 'ptiaraite
pff''nt. I.ookiing at the mattecr that way,
J ion't think theltre is anythintg ill your
ot'.tt-tioIn. I think, about that other miat
.cr. they shoull keep within the Itel,-hs
di I hunlds of that l'ennsylvalttia dct.'re.
"Therefore, I will overrule this ii, otioII."
Mt. Forbis took lo exception to the
Ruling. andi thenI stated to thei itourt that
the' dtefentlltlnt com pany had l en l ..xclnd" ,
frllm thlose workiings of the Raru, in iie
Pertnnsylvania claimt which the plaintifts
saidl showed a conneicction betw'eetll ih ire
bodies north and south, and till the
couit that it would be al,solutcly iilmpotn
slilb, for the dcefendants ito go ton trial itl
thi matter withllout all insplection of the
workings named.
i his was discusse and and te arrangelmentlL
live stated reached, wlen the adjourxw
pIllmc Was takeni
HAS SLEPT 15 YEARS
BY ASSOCIAiTEI) ilt.VSS,
Berlin, Nov. 7.--Sezine Meyer, the girl
who had laid since I)ecember 27, 188H, inl
a trance-like sleep, woke Sundtay in t(i
village of Gramblacke, near Blreclllen, dur
ing the clanging of fire bells. lcr case
had long interested physicians anll had
lbe-'. the subject of tmany exIperitnellts.
NOMINATIONS FROM
THE CHIEF EXECUTIVE
Senate Has Confirmed a Number of Men
Named by President Roosevelt.
BY ASSOCIAeJ'Il P'I;SS.
\\'ashington% Nov. 17.-'!'he senate ill
lex-cutive session confirnmed the following
I n '(inations: John Barrett, Oregon, tmit
ister plenipotentary to Argentine republic;
John P. Jackson, New Jersey, minister
pliltnipotentary to Greece, Iroulnania,
S rvia and diplomatic agent to Hungary;
'Stalford Newell, minister plenipotentary
to, The Netherlands and Iuxembourg;
Ilamiilton King, Michigan, minister pleni
potentiary to Sianm; Spencer F. Eddy, Ill
ilois, secretary of embassy at St. Peters
burg; Lewis Einstein, New York, third
secretary, embassy at Paris, a inumtber of
secretaries and second secretaries of le
gations; H. E. Greene, Minnesota, civil
service commissioner; H. M. Clabough,
ilaryland, chief justice supreme coAurt
Ditrict of Columbia; J. G. Pritchard,
INorth Carolina, associate justice supreme
-court, District of Columbia; S. N. Dexter,
North, 'Mass., director census; P, S,
Oliver, New York, assistant secretary ot
war; J. B. Vreeland, attorney for the
district of New Jersey; to be lieutenant
general, Maj. Gen, Samuel M. B. Young,
U. S. A.; to be major general, Brig. Gen.
,Samuel S. Sumner; Col. George F. El
liott, United States marine corps to be
brigadier general, commandant of the ma
rine corps.
Also a numbier of army, navy and ma
rine corps promotions and appointment,
COMMISSIONERS FIGHT
THE N. P. INJUNCTION
I'onm llissitner ;H.,.getly will go over to
Iheletna tonighlt in o lr1 t beli' pl',4ll at
the hearing ill thel i ct =it l Sitel cor urtl
thele Iltomn lttow inl the injll nL . tinl sailt
brolughlt againl t the' mtintgy c m.llnlllit i innelll1
hy the Northern Pai;fic taiilroad over the
Icounlty bridge Ih:at was .Ihald andi the
county road that was -h utnlled by the
railroad in thll , IN1atul S ,ukhlh a.l14 whirh
lropen. Assistiit 'olinily Attn'iiy Lynich
will reprownt the t l lllll i' iliun .,l and tIl.
illo ly lat th heillu illa g :II 11 ' t il l lIII igill
davil and an anl.w'.l for them.
SUICIDE FOLLOWS AN
ACCIDENTAL DEATH
IIY Ah.in, IAI I I a). si.
('harlh.;ton, S. t'., Nov. 17.--I l. F. M.
lioykin, Ipreslident of lthe larel,' . i di
M1ecllihants' la:nk of (t amd n , . (.. ;acti
dentliily shlot andl kllled him lf while' hunt
in(rashier of the hank, shot ndl killhI hint
self. The cendition of the hank i, noI
kilos II.
DODDS LEAVE FOR EUROPE
1.( AI.11i J1 I III I l I II AIl M .AI'l
Ieer Iodg,, Nov. 17. lr. a l Mrs. i ..
T. odd dleparted last evening for a
foreign trip, etxpctiltg to he absenl t Iwo
years. 'h. ie doctor will putll ill mosl of the
ti.l taking a spelcial rioirsi at the faml ius
V~ienna university. 'Ilthy would Ihave left
sooner IIlt were detailnld Id y Ithi illI'-', of
Mrs. i)oudd.
ILast eventling 1)r. l)Doli was givenl a fit.
tig;, farewell alit the hoi e of I)oiail
I.arabie, whol ilnvited in tilhe following
young mens to wish I)r. I)odd G;odslced:
. ii. I. avis, W. F. ;ilette, Alf Whit
worth, (Otto Ihk, James Mulcahiy, I)r. W.
(. I)ye, Prof. F.. 1). Eaton, P'rof, . . J.
Snell, Dewitt l'cck and J'fseph Smith.
FRED MOORE IS ON TRIAL
51'1.1 fAI. 'l 1il. IN lliit Mt IrN'IAIN,
Virginia Clity, Nov. 17. iThe hearing of
Fred Moore on the charge of imaking
threats against P. V. JaLckson and W. F.
Jackson is beiig conducted this afternoon
before Justice of the iPeace M. I). Jackson,
the idea being to bind the accused over to
keep thl peace.
It was 17 degrees below zero in Virginia
thlis morning aild old' tilmers are scratch
ing their heads to recall when it was s3
cold this early in November.
A. D. T. BOYS IN A -FIGHT
As the result of a dispute over a questilo
of supremacy, between two Amerircan IJis
trict Telegraph boys, last nlight, JiEugenle
Choquette is it the county jail, charged
with third degree assault, and Johnl W.
O'Farrell is taking a lay-off on accolllnt of
both his hands being in bandages. The
two boys got into a rlispute in the coln
pany's office, canldy anlld tobacco being the
matter of difference.
C. W. Bullfinch in Helena.
SPECIAL 1 0 Till', INTi',I.i Mi)'N'IAIt,.
Helenia, NovW.17-C V. Iullfinch, who
located claimi No. 8 above discovery is
last Chance gulch in 1865, mined here a
number of years and then left, is here
from his holme ill Wisconsin, renewing
old acquaintances.
Mrs, C. W, Clark Stronger,
Word coming fromn New York states
that Mrs. Charles W. Clark is improving
and that she arrived itn the city apparently
stronger than when the journey was un
dertaken from her home in San Matco.
IF YOU ,MAIL YOUR PICTURE
in a photo envelope it won't get broken. You
can get any size you want at the P. O. news
stand. We have a complete assoltlnent of
writing materials and stationery. 57 West Park
street
GUNS PEAL FORTH
A ROYAL WELCOME
KING AND QUEEN OF ITALY MET ON
INGLISH SOIL BY PRINCE OF
WALES AND DIGNITARIfE.
PARTY STARTS FOR WINDSOR
After Inspection of Cadets at Osbornel,
Itoyal Pair Is Whirled Away for
the Meeting With Edward.
IIV A i I.oi I AllI HI I tI .,
I, lnd n, N, v. 17. King V~i lr lViI
an e'l iand ti.rl fll ienai of Italy reached
I'erltAciccc on t11 ll royll l ycIt'lit 'Vicloriat
m cl w.u'n Albert ,hiorltly Il.ure i I o'clock
hibis mlorlll lng ani llst :llllt11.5 flrol the ships
aclll land I;II'liIre ii tlhe hairbor. Upon
lthe arrival of the yachtl at tlhe jlty the
ha ince of 'ala,s wen.it ablcard ilmliii liately
cnld wrti cnid their cijie liccs iii tlhe iatle
,,l King E'.dward andl of the nation.
A trUrludo flotilla met thelt royal visitors
It;l li rclil ait es.ci(rt for the royal yacht
throtugh the homc e ilert lying at Spithead.
All the ships were lIr'csiilh and manned
and the cheers of Ihle crews mingld with
tih reportl of the gunIs in giving the
llaliani king id quleeni a welcome to
l.nglaml.
(rlat crowds lined every vantlage point
andi blue jackelts iland marines crowded tlhe
jetly and a band phlaye the ItaMlian na
Itial alinthemll as the yacht steamed along.
jide.
'lthe Prince of Wales was met at the
top of the gangway by King Victor Kinm
maauel and Queen Helena. After greet
ings had beenii exchanged between the
royal personages the naval and military
con landiilers were ilntroduced to the king
aill queen and the nmayor of Phortsmouth
presented an alddress to King Victor EKm
manuel, who briefly exprressed his thanks
for ithe lessage of good will fro(m the
citizens.
After lunch on board the yacht the king
and quleen and the P'rince of Wales dis
ecimhbarkedl aid King Vict:lor inmmanucel in.
spect'd the guards of honor and the naval
'adects from thie c'ott:age at Osborlne, after
which they started for VWindsor,
AUDITORIUM
Lonnie Lawrence Dennis,
The Matvelous 9-Year-Old
Child
Evangelist
At The Auditorium
Tonight at 8 p. m.
Iaics preached to metropolitan congrega.
tions in 38 states and in Canada, Hun
dreds unable to get into the buildings
where his remarkable services are held.
"iA Little Child Shall Lead Them,"
Thousands of conversions. A silver offer
ing is expected at the door to help defray
the heavy expOnseie

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