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VOLUME CIX.—NO. 69.
CIRCUIT COURT OF APPEALS ON BENCH Twenty -eight Decisions Handed i Down by Federal Judges f Yesterday Beginning of February Term Is j Marked by Important Rulings . The United States circuit court of appeals began its February term yes terday by handing down 28 decisions, one of which reverses the conviction of Dr. George W. Dwinnell and John Gilpin for land frauds in Siskiyou county, while another breaks up the streetcar monopoly of Rainier avenue, SeattIe. IfeMHMBBMBBMLCMf ' Circuit Judges William B. Gilbert, presiding, of Portland; Ersklne M. Ross of Los Angeles and William W. Morrow sat . for part of the. session, Tvhen Judge Ross' place was taken by District Judge Charles E. Wolverton of Portland. « The Dwinnell case is reversed .on technical grounds. The indictment, Which charges subornation of perjury In the filing of land claims by dum mies, is held valid. But the court erred, writes Judge Ross, in allowing evi dence of a later date than the crim inal acts, as in admitting the conver sations of witnesses at the time Dwin nell bought the relinquishments, which were related on the stand by the al leged dummies. Judge Ross, with Dis trict Judge Hanford concurring, thinks this sufficient to throw out.the convic tion, but Judge Gilbert dissents •with out making record of his views/ CONVICTED LAST YEAR Dwinnell and Gilpin were convicted In the court of United States District Judge de Haven last year and sen tenced to serve a year each in the Ala meda Jail. Dwinnell lives at Montague and is widely known In Siskiyou coun ty, where he got the lands. The Seattle streetcar franchise dis pute, which Judge Morrow settled, Is similar In its superficial aspects to the one here between the Geary street mu nicipal line and the United Railroads. The Seattle, Renton and Southern railway obtained a franchise over part Df Rainier avenue,-Seattle, In May,: 1907. Last .January ; the councilf gave similar rights to the Seattle electric company. The Seattle, Renton and Southern then brought suit in the United States cir cuit court to enjoin the electric: com pany from laying tracks. ;It: claimed that the new line would hamper its service and reduce" Its Income In vio lation of Its franchise. After obtaining an interlocutory decree of injunction it next tried to prevent ; the electric tompany, from carrying the case to the tQurt of appeals. t-J^ftflE RAILROAD CASE DECIDED . In fighting the appeal the S. R. and •B." claimed that it went into the fed eral courts not on the ground of dl verse citizenship, > but' on a constitu tional point.'■."; To grant a double fran jhise/lt was charged, would be- con fiscatory. Argument V. was j ; also, made that the circuit court had final say as to constitutional points, hence.the con test should end right'there. ■■ " . '■ Judge Morrow, 'however,!, settles >,the »o|nt of jurisdiction by saying that THE SAN FRANCISCO CAUL CONVICTIONS OF DR. DWINNELL AND GILPIN FOR LAND FRAUDS REVERSED Judges of the United Stales circuit court of appeals seated upon the bench at the opening of the February term in this city yesterday. From left to right they are Judges Morrow, Gilbert and Wolverton. rule about constitutional questions was abolished ■ some years ' ago. He • then proceeds to show that the second fran chise jls not confiscatory, since the first reserved the right for a municipal or a private line to use the street, pro viding compensation far: the original company in such an event. -"lnstead: of taking the complainants* property," writes the judge, "without process of law, It expressly-provides that -It.shall'not be so taken. "The-case Is accordingly reversed and the; bill dismissed." A victory Is obtained by Boise City, Idaho, over the Boise artesian hot and cold water company, which had refused to pay,certain license fees ordered ,by the city. The:water people got their franchise in ; years ago,: .when * Boise had a population of but ,6,000.' It has now grown to 25,000, and;,the company met this growth by laying in 30 miles of new. pipes without obtaining. permis sion from the authorities. The, com pany, won In the lower court by rely ing on the terms of Its old franchise. But It is now 'field that the extensions were outside'of the original terms. FARMER IS' LABORER > Whether; a farmer in'& laborer or a merchant was settled yesterday.' ,by Judge ' Gilbert in favor ;of • the first, since the farmer tolls with his hands. This settles the hopes of Lew Quen,-Wo against deportation. Lew was landed as ; a - merchant's, son and ' arrested ; two years later £on 4 the ; ground • that the father.was a- laborer. He is now held by the immigration authorities. ; The I'verdicts,for .damages won .by Baslllos Hanos against the "< steamer KUburn• because*of a bursting steam pipe, and X by.' C. -A. Hooper j & Co. against '.the ; steamer '. Wellesly for * a cargo V; of i shingles -thrown overboard as 'the. result of overloading the deck, were J both sustained. The govern ment's recovery of land from the South ern Pacific tin. "southern? California be cause 'or illegality,, of; the grant ; was ? SEE TOMORROW'S CALL : also' sustained. With interest the sum comes to $73,000. ' : Reversals over ; the lower courts were made with the following results: The Royal Insurance ■ company must- pay for fire damages ito. the, Port Blakeley , mill company, Washington, as , the appellate judges believe; the trial court erred in 1 holding that the mill people did not use "due"diligence" to "keep the ! sprinkling system in< repair, as required byv the policy. The Charles H. Lilly company, a. Seattle seed : firm, loses Its damages against Brent & I Brother .: of i Paris, , Ky.? over, a carload shipment of jbluegTass seed. ; Their dispute was as to*. whether 14 pounds 0r.21 pounds make a bushel of bluegrass seed, * which! Judge Ross believes is sufficiently 'clear from" the correspondence over the' deal. '\ * T'» ',fi NOME FORECLOSURE ILLEGAL -..,-' The '-' foreclosure of mechanics'' liens by Delamotte and 20 others on the Pio neer milling '■ company of Nome ;is > held Illegal. The' lower court if is * held ;;. un just • In: finding - for the * government iin the case against the Northern Pacific terminal company," which shipped horses without food, water, f or rest 'from* Ply mouth,*' Wash., to * Portland. The "rail road • is ■ held 'to: have . done ' the best :- It could. Benjamin Gerber, a Seattle mer chant. Is not entitled to;the cash allow* ance ■in \ his bankruptcy case, for which he .'sued Trustee Nelson Parker. The Seattle Immigration commission Is sup ported in the deportation of Marie Gallo for I immorality. t r Reversal fls* given .' in the ; conviction ;of •: William ' Hanley for inclosing public lands in Harney coun ty,". Oregon. 1 Hanley was " Indicted * for doing 'this ii himself, and convicted 1 on evidence that he had "aided and abet ted"'.others'.ln the act.'- f '>' M Judgments were affirmed in the.case of * William Nagle,' .'. who .won damages against the Idaho and Washington rail way for * ruining his i property, in v the damage verdict V. given the ■ heirs •," of James Wall ' at* Newport, Idaho, a»-alnst the same railway; Andrew Johnson »of Colfax,.Wash.;,in his suit over. a burned stock certificate against the Snowstorm mining: ', company; P Jacob Yungbluth against .the- Eagle shingle ; company of Skagit county. Wash.; t the'Alaska;Cen tral ; railway company \ against-its as sistant .treasurer,; F.H.; Stewart, *, for money; ('. J. Stewart against the Wash ington-Alaska ; bank *. for « Interest iof 2 per* cent a 'month In 'defiance "of the usury law; the First national; bank of Central City, which brought an Inef fectual ; suit; to ; force ■': the , payment lof Port Townsend. warrants. ■ * . • , The remaining cases-were over- still smaller matters. '"' ; ' ' '.'..''. INTERSTATE EXAMINER r^ HEARING RATE -CASES ■ A.. R. Mackley,; examiner. for the in terstate commerce commission, , began the hearing: of rate cases yesterday in t.he rooms of j the United States district court." Evidence was 1. taken In the com plaints; of i Mason Brothers ; and ?of /'the. Northern* California;- lumber .;» company against the Southern' Pacific; and of the Pa»affln paint •company,*" against the Southern , Pacific,*, Northern; Pacific 5 and Chicago and Milwaukee lines. Repara tion is sought where "freight: bills were paid at rates since declared unjust.»" v •'■■'■ —'; _♦ "' ; ."". . Northern California Citrus Fair,: Sacra mento. February 13 to IS. ■'•-; One and one-third fare for the round trip from all points In California to enable you to see this wonderful dis play ' of : northern * California^ products. Tickets i sold * February 13 >to ■ 17 .. from stations south of i Santa• Barbara and Bakersfleld; and February 13 to 18 from stations north of th.*ae points. Good for' return up to: an Including Febru ary ..' 25. For details = see ; agentst South ern Pacific. Ticket offices.- Flood build ing. Palace hotel, Market street ferry depot and Third I and I Townsend I streets depot; Broadway and Thirteenth street, Oakland- ... , , -v-* .»* •?•• - RESPITE OF TWO WEEKS FOR RUEF Order Is Granted When His At torneys Say 'They Are Unprepared A two ;" weeks*.'- respite "was granted Abraham Ruef ■'. yesterday by; the• su preme court when attorneys for the de fense pleaded they were unprepared to answer the arguments of Attorney Gen eral 5 Webb in the matter of having the supreme court order, for a rehearing de clared void.'.' ■"'-.- " !,'•'■/•; ■'-«■?,'.'^ Attorney Cross gave as. a- reason for his iunpreparedness.that /the"-- attorney general's; office:; had '>; kept: the« reference shelves <of i the supreme court ™Jts library empty of books touching on the fcase and that the attorney, general had failed to supply the list of authorities that would ,i be* quoted *ln^ showing) that the action of < the supreme court was Illegal. ;: 'AttorneygGeneral*"' Webb \ i responded that* it was not obligatory to furnish the | list of authorities. I ?No i objection»being J offered, the case .was: continued until February 21. when the * hearing ' on* the: motion •to dismiss will^be': heard. '. ,'•"..-' .;, '';/.-', li,T-*,'« *"f ;s>The]attorney general asks for a: > dis missal on the grounds) that one of the concurring justices to the order grant- Ing'ißuef♦ a% hearing in ; the r: supreme court (.was, out of I the ■ state" at the > time the court order was issued. > '-"•-- •'» TUESDAY, FEBRUARY 7, 1911. SPURNED CARRRIER SHOOTS IN REVENGE True to Promise Mailman Shot ; and Seriously Wounded Hus band of Mrs; W. Patton "I'll be around today to fix your husband for the: way he treated me," said Joseph Wllhlte, a letter carrier, 39 years , old, when ordered away - yes terday morning by' Mrs.' Ham Pat ton, ; from her home at .423 Tehama street., True to his promise, he called at 2 o'clock and asked for Patton. Patton went to the door, told Wil hite to stop annoying Mrs. "; Patton, turned to go. Wilhite drew a re volver and commenced firing. One shot pierced Patton's breast, ranging. toward the heart.• Another broke his left arm." During the scuffle: for. possession of the gun,; Wilhite;.was shot in the right leg. He fled to his home in Hayes street and was arrested. POCAHONTAS BALL PLANNED Seneca ronn . oil of the Degree 'of Pocahontas ha« appointed a romtnlttee to arrange for; an—entertainment anil ball.' to be given <In ?, Veterans' : hall' next - Saturday night, for the benefitof the fund it '" maintains for.- sick and 1 distressed i members. :- CLEARANCE SALE / : For Two Weeks-^,, Beginning Monday, February 6th , To Make Way for New Importations FURNITURE (Period and Modern) CARPETS DOMESTIC RUGS Best Standard Qualities At Greatly Reduced Price's Unusual Bargains W. & J. SLOANE if a IX U; B uLUHIIL 216-228 SUTTER STREET WILL FOUND IN SAFE DEPOSIT BOX Son Finds Paper Which May Cause Contest for $20,000 , Estate of A. Neumann Adam Neumann, who died January 31, 1911, left an estate worth-about $20,000. Friday the widow applied for special letters of administration and the son,; Philip, asked for an:order to search the vaults of the Crocker na tional bank, believing . that he would find "a will. i • True to expectation, a will -was found and in it .' Captain S. F. ' A. Obermeyer is named as. executor. The estate was divided equally among surviving chil dren and! the widow. / Captain Obermeyer has petitioned •to have the will admitted to probate.' The hearing, has been set for Monday, Feb ruary,; 20. The petition of ; the .widow, Annie M. Neumann.'for general letters of administration has been set for the same time. ,?It is believed that a contest, will result. Mrs. Neumann being dis satisfied w|tli, the portion* of the estate bequeathed,. her., in : the - will. ' .*. \V. M. Cannon is. attorney for ; the widow. / C.F." Adams represents Cap tain; S. ,F.; A. Obermeyer.