Newspaper Page Text
$-$-$ DOLLAR DAY, MONTPELIER, FRIDflY-SATURDAY, JUNE 3-4 $-$-$
MONTPELIER EXAMINER Beach the People Thru Our Adver tising Columns. Montpelier Population UMBO—SIMM near lake County 11788 A Progressive Independent Newspaper Devoted to All the In terests of Bear Lake County, Idaho. MONTPELIER, BEAR LAKE COUNTY, IDAHO, FRIDAY, JUNE 3, 1921 VOLUME XXVII. NUMBER 11. IMPORTANT DECISION IN FA VOR D. C. KUNZ Prosecuting Attorney May Re side Outside the County Seat Without Interference With Official Duties of County. a is a summary proceeding brought pursuant to the provisions of Sec. 8684 C. S., to remove the de fendant from offico as prosecuting attorney of Bear Lake county, Idaho. ; The matter is before the court upon defendant's amended demurrer to the Information. After alleging that defendant 1 b the duly elected, qualified and acting prosecuting attorney of Bear Lake i county, a body corporate and political subdivision of the state of Idaho, and ! that plaintiff is a citizen, resident 1 ded taxpayer within said county, the j information charges: i That tho defendant, at all times sinco January 10, 1921, has been , knowingly, wilfully and intentionally failing to perform the duties of his said office as said prosecuting at torney, in the following particulars: 1. That the defendant as such prosecuting attorney, since January 10, 1921, "has failed, neglected and refused" to have his office, or have or maintain any office, at the coun ty seat of said county. 2. That the defendant as such prosecuting attorney "has failed, neglected and refused as aforesaid to keep his office or any office open for the transaction of business at the county seat from 9 o'clock a. m. until 6 o'clock p. m. f of each or any day except Sunday and holidays." . 3. That the defendant, "has re The opinkit handed down by Judge Varian of We:Ber in tho case of Franklin Budge vs. D. C. Kunz, fa vors Judge Kunz in every instance. The written opinion was received Sunday morning by Attorneys Gough and Bagley, who represented Judge Kunz. The opthlon is far-reaching, aHa* decides a very important issue in the state of Idaho. The full text of the document is herewith printed: In tho district court of tho fifth judicial district of the state of Ida ho, in and for the county of Bear Lake. Franklin Budge, plaintiff, vs. D. C. Kunz, defendant.—Civil No. 46i— Memorandum decision. This is sided since his election and qualifi- | cation, at the city of Montpelier, Bear Lake county, Idaho, and has failed, neglected and refused, after demands mado by tho citizens of said Bear Lake county, Idaho, to remove to, and reside at said county seat, or to establish, keep, or to keep open hin official offico as prosecuting at torney, etc., as required by Sec. 3551 of the Compiled Statutes of Idaho." To this information the defendant has filed an amended demurrer whereby ho demurs to tho luforma tion generally upon tho grounds: 1. That the Information does not stato facts sufficient to constitute p. causo of action. 2. That it does not stato facts sufficient to constitute a public of fense; and upon numerous special grounds which I will not take time to enumerate. At the hearing counsel for defen dant urged five objections to the in formation: 1 That the information does not state facts sufficient to constitute a causo of action. 2. That the information fails to . specify any particular official duty that defendant, as prosecuting at torney, has failed to perform by rea son of his having failed to maintain an office at the county seat. 3. That sections 3651 and 3664, Compiled Statutes providing that the prosecuting attorney shall reside and maintain an office at the county seat, in so far as they refer to the prose-» f cutlng attorney, were repealed by the adoption of the state constitution, as said sections (formerly sections 1822 and 1825 Revised Statutes, are re pugnant to the provisions of the con stitution and havo not been re-en acted by the state legislature. 4. That section 8684 C. S., under which this proceeding is brought, Is unconstitutional and not ,in force. 6. That, under the facts In this case, If it be conceded that seceions 8684, 3651 and 3564 C. S. are In force, nevertheless the plaintiff has mistaken his remedy and should pro ceed by the methods prescribed In sections 8670 to 8683 C. S., or by quo warranto, section 7024 C. 8. Section 8684 C. 8. reads as fol lows: Sec. 8684 (7459). guminary pro ceedings for Removal.—When an In formation in writing, verified by the oath of any person, is presented to a district court, alleging that any of ficer within the jurisdiction of the court has been guilty of charging and collecting illegal fees for services rendered or to be rendered In his office, or has refused or neglected to perform the official duties pertain ing to his offico, tho court must cite the party charged to appear before the court at a time not more than 10 nor less than five days from the time the information was presented, and on that day or some other subse quent day, not more than 20 days from that on which the Information was presented, must proceed to hear, in a summary manner, the informa tion atod evidence offered in support of the same, and the answer and evi dence offered by the party Informed against; and if on such hearing It appears that the charge is sustained, the court must enter a decree that t' the party informed against be de prived of his office, and must enter a Judgment for $600 in favor of the informer, and such costs as are al lowed in civil cases." The gravamen of the charge here is that the defendant, as prosecuting attorney for Bear Lake county, Ida ho, has failed. to reside at the coun ty seat, has failed to maintain an office at the county seat, and has failed to maintain office hours at the county seat. Plaintiff contend ing that the refusal to comply with the statute concerning these matters constitutes a neglect or refusal to perform "an official duty pertaining to his office" within the purview of the provisions of section 8684 C. S. The sections of the compiled sta tutes applicable insofar as they re late to the prosecuting attorney, read as follows; Section 3561. Offices to be Kept at County Seat. Sheriffs, recorders, treasurers, assessors, and prosecut ing attorneys must have their offices at the county seat, and keep them open for the transaction of business ; ro m 9 o'clock a. m. till 6 o'clock p. ni., every day in the year except holidays. Sec. 3664. Residence of Officers. The following officers must reside at the county seats of their respec i tlve counties: The probate judge, the sheriff, treasurer, recorder, as ! sessor, the prosecuting attorney, the 1 recorder, and the county superinten j dent of public instruction." i it is clear that the requirement that an officer shall reside at the , . • • • county seat is not "an official duty pertaining to his office." The su preme court of California clearly states the Interpretation to be given the language of our section 3554 In Ex Parte Harrold, 47 Cal. 129, in Interpreting a similar statute of that state: "It Is claimed on the part of the prosecution that It is an official duty of the defendant, as treasurer*of the county of San Joaquin, to reside at the city of Stockton, the county seat of that county. The duty enjoined by law, within the meaning of Sec. 176, Penal Code, is an official duty. It Is an act to be performed by the incumbent of the office, in his official capacity. It is not a qualification, which' a person must possess In order | that he may be eligible to, or con k. C 1909, wherein the office is al Is a It tinUe to hold, an office. Should it bo provided by competent authority that no officer should absent himself from tho state for more than thirty days, or that he should not discharge tho duties of his office after he had attained tho ago of sixty yearB, those provisions would amount to condi tions, upon which the incumbent's right to hold the office depended, but they would In no sense constitute official dutieh—duties pertaining to his office. Provisions to the effect that a person shall not. bo eligible to a particular office who Is not of a designated age, or a resident or elec tor of the proper county, district, etc., are qualifications which he must possess in order that he may be eli gible to, and hold, the office, but they clearly are not duties pertain ing to tho office." Counsel for defendant contend that tho requirements of Sec. 3561 as to maintaining an office and office hours come within the same category as "residence." In view of the con clusions reached by me In this matter It will not be necessary to decide this point and I express no opinion thoro on. An examination of tho statutes discloses that Sec. 3551 substantially appears in the Revised Statutes of 1887 as Sec. 1822, and also in the Revised Codes of 1909 as Sec. 1822. So ' far as I am able to ascertain, tbe requirements of this section were first extended to the prosecuting attorney, then called "district attor ney," In the compilation of 1887. Sec. 3554, so Tar as it affects tho prosecuting attorney, appears as Sec. 1825 R. S. 1887, and as Sec. 1984 so designated as that of "district attorney." y Both of these sections were there fore In effect before the adoption of the constitution and the admission of Idaho as a state, and were territorial laws. Sec. 2 of Article XXI of the Constitution provides that "All laws now In force in the territory of Idaho which are not repugnant to this con stitution shall remain in full force until they expire by their own limi tation or be altered or repealed by the legislature." If tbe said Sections 3551 and 3564 are not repugnant to the Constitution, they were continued and remain in force by virtue of thp section of tbe constitution quoted. Originally the office of district at torney, under, the territorial govern ment, was a district office for each judicial district in the territory. 1st Terr. (1864) Sess. Laws 673; 3rd Terr. Sess. Laws (1866) 187. Sub sequently district attorneys were elected for each district attorney dis trict. 6 Terr. Sms. Laws (1869) 160 8 Terr. Sess. Laws (1876) 679. Again tha laws relating to this office was amended and It was made a county office. "Soc. 1. Tbe office of district At torney for each of the organised counties of this territory is hereby created." 11 Terr. Sees. (1881) 250. Ap proved Feb. 10 1881. Thus, at the time of the adoption of the state constitution which went into effect (Continued on page six) WOULD BONO FOR Another good roads meeting was held at Paris Tuesday afternoon and another discussion of Bear Lake's road problems was had. D. P. Ol sen of the state highway department and Engineer Wilson were present, and'it was on account of their visit to this county that the meeting was hurriedly called in order that the problems to be solved here might be brought to tho attention of tho road officials in the form of a discussion by representative citizens from all parts of the county. As usual tho mooting got off on tho wrong track owing to motions and counter-motions and the drifting of arguments onto subjects and conditions foreign to the purpose of tho meeting. After considerable discussion J. W. Cook of Paris made a motion second ed by John A. Hunt of St. Charles, to tho effect that the county board of commissioners bo instructed to call a bond election at onco to obtain funds to pavo from Utah line to the Caribou county line, and that the first section to bo paved bo from Paris fivo miles south and the Becond section from Paris fivo miles north, and that only $40,000 bo spent on tho side roads. Those present from Montpelier wero quick to resent any such movo to bo mado at the sacri fice of the taxpayers residing off the stati highway. Tho action of the meeting finally resulted in tho passage of two reso lutions, tho first of which authorizes the board of county commissioners to take up with the stato and nation al good roads bureaus the matter of cost of surfacing the stato highway from tho Utah lin» to the Caribou ■ounty line. Tho second resolution was to tho board of county commis sioners to have the county roads sur veyed and preparo an estimate of needed work and cost of surfacing \nd repairing the roads of the whole county outside of tho highway, and to report their findings to tho people ■if tho county at a mass meeting to bo called at such a time when tho offtcers are prepared to mako a defi nite report. Tho spirit of tho meeting was all right, and sentiment was in favor of holding an election for the purposo of bonding for good roads, but diffi culties arose which made it advisable to ascertain estimated on tho cost of building and improving the side roads. was day C. cal to J. the of Hr. a as VISITORH FROM OGDEN Mr. and Mrs. Dell Hampton of Og den and Miss Gean Davis, who is at tending school In Salt Lake, came over to this city Saturday and re mained over Sunday visiting Mrs. Hampton's and Miss Davis' parents, Mr. and Mrs. Jeff Davis. Miss Davis will return homo in about two weeks at which time her school will close. Missen Sarah Huckvnlo and Flora Clark spent Monday at Pocatello. DOLLAR DAY THE EXAMINER Will Print 150 BUTTERWRAPPERB « > < i for $ 1.00 Order must positively be in our office not later than noon, on FRIDAY, JUNE 3 You may order by mall to get the order hern curly, and coll for them on Friday or Saturday, June 3 or 4. RE SURE TO MENTION S-DAY 50 I/A DIES' VISITING CARDS fl NEW SUBSCRIBERS ! OTill He rriven TPindi* TWT/vrOb „ '1 ™ Eiffht Months Subscription for i $ 1.00 On "Dollar Day" June 3 and 4 For a full year add 50c Pocatello Indians HERE FRIDAY Members of Snake River League at 2:30 Game called General Admission 35c Grandstand 50c SCHOOL EXERCISES WELL ATTENDED Tho Twelfth Annual Commence ment of the Montpelier high school was held in the tabernacle last Fri day evening. A moat successful pro gram was rendered to a largo audi ence. The School orchestra and glee club furnished the music. President C. It. Frasier of tho Idaho ToclinlJ cal Institute of Pocatello, was unable to bo here, as announced, but Prof! J. E. Rutherford of the same school! delivered an able address, which was' enjoyed by all. * Supt. W. E. Morgan gave the school reports, and Principal A. J. Winters gave recommendations to the graduates. Miss Dunn and Miss Winters, two of tho graduates, were unable to at tend tho exorcises owing to illness. Hr. G. F. Ashley, chairman of the city school board, presented the graduates with their diplomas, the class of '21 being composed of the following: Seldon Cook, Millie Dana, Lucile Dunn, Burgetta Olson and Vera Win ters. in V ier to to up ELIZABETH BRUCH DIRS ■ Elizabeth Bruco of Star Valley, lilted at tho homo of hror sister Mrs. James-Walton In this city Frt dny night, death being duo to an at tack of pneumonia. She was the daughter of Mrs. A. E. Motflt of Star Valley and resided with her sister here. KICKED BY HORSE John M. Ward of Bloomington was a visitor to Montpelier on Monday. Mr. Ward is nursing a very sore leg as a result of being kicked by a horse about ten days ago. ('llAMBER MEETS TUEHDAY Tho regular monthly meeting of the Chamber of Commerce will con vene In the club roomi Tuesday ev ening, June 7th. urgently requested to be present. Every member Is HOT HPRINGH WELL KEPT Visitors to tho Hot Springs sinco Mr. Rust completed tt»e work of reno vating the place, are well pleased with the results. The place boa un dergone a complete cleunlng and the interior of the bnth bouse has been calsomined, and presents a neat ap pearance. • FORM ran CLUB About thlrty-flvo business men of Montpelier met Saturday evening at tho Mike Knuttl place and formed a club, which was named "The City Club," and the Mike Knuttl placo was rented for lub rooms. The pur poses of the club are purely social and to provide a lounging and rest ing place for the members. MOMK GAME FOB FRIDAY. Thera will be some real baseball game In Montpelier Friday afternoon. Manager Beatty of the Phosphates announces his success in procuring a game with the Pocatello Indians, who are members of the fast Snake River Leaguo. The game Friday is called for 2:30 prompt, and will bo the sporting event of tho first day of "Dollar Day." With tho Phosphates in excellent trim and full of confidence after their victory over Soda Springs, It in nafo to say that the Indians will he led a merry chase In Friday's game. GET OUT AND ROOT FOR THE HOME TEAM FRIDAY. House Aprons in Special Sale. We cannot emphasize too strongly tho advisability of buying a season's needs at this time, as tho prices In dicate rare economy. These aprons represent almost every Imaginable ! attractive pattern and stylo. The ma terials are ginghams and percales of «* c «Ilent quality. Come at the open» i nK hoar Friday. DAVIS. Dollar Day Friday and Sat urday. BRENNAN £ It 0 . c. Gray was a business visitor to Pocatello a day or two during the latter part of last week. ti STAGE IS SET FOR DOLLAR DAY"; f UNITED STATES MAY RELEASE EQUIPMENT Additional federal war material maThn' lurne^nv.r^to touring curs muy Do turium over io|, tho various »täte» for highway pur poses. If a bill recently Introduced j in congress is onseted into law. a copy of this bill ha» been received by D. p. Olsen, Ldaho director of the bureau of highways. Large quantities of ulmllar equip meut have already been turned over ; to the federal bureau and distributed PRESTON INTERESTED IN EMIGRATION ROAD The Preston Commercial Club is boosting for the Emigration canyon road between Mink Creek in Cache V alley_ and Shu run, lu liter, I .a ko county .eroy Lindsay, who Is III the—feri'st service, came te Montpel ier Tuesday to discuss matters per taining to the repairing of this read with officials of tl»e Chamber of Com merce and also with officials of Hear Lako county at Paris, made the trip ovet; the Emigration canyon road oil horseback, and stated that the road was good with the ex ception of a stretch on top of tho divide, where the snow has'hot yet disappeared, but expressed the belief that the road would be open In a course of ten days. Tho forest service In placing road signs all through the canyon, which give valuable Information concerning the route. The Proston club is pre paring to repair tho road us far ns the summit, and efforts will be made to interest people on this side to do likewtso on UiIh side of tho summit. Emigration canyon is a very de sirable outlet from this part of the stato owing to tho fact that there are less than fourteen miles of ennyon to go through as against forty-six miles by tho other canyon routes to Utah points. The Chumber of Com merça of Montpelier Is ready to back up any proposition to establish a good highway through Emigration canyon. Mr. Lindsay ■ Idaho has re to the various states, celvod much of its pro rata share of this equipment, but if the federal hill Is enacted there will be much more due. Must Pay Inlwivi. Each stato cun get this road ma chinery from the federal bureau by Iiaylng tho freight from the nearest distribution point to any point in the state. nliim. has expanded approximately $195,000 in freight for this surplus war material, and tho 1921 session of tho legislature appropriated $75,000 additional. Some of tho equipment enumerated One thousand caterpillar tractors, . 2000 drive three to flvo-to.il ton ! four wool, 600 staff observation cars. U one ton, 600 reconnaissance cars, one ton, 4000 motorcycles, 2000 three fourths ton trucks, and 500 light • 1 ..IIvor««« deliveries. . E. W. Elliott, manager of the I Golden Rule Mercantile company of Logan and Glenn N. Karl, are hero to remain until Sunday assisting II. L. Nicholson of tho Golden Rule during Dollar Day —" Lloyd Lehrbai; came In from (jago Tuesday morning on Nfj, 19 and remained until Wednesday visiting relative» ja ml friends. v Yr. and Mrs F M McFall of Rand Springs. Okla., and Mr. and Mrs. Harry Rooso of Kallspell, Montana, passed through Montpelier Tuesday enroute to Montana. Mr. McFall is a prominent newspaper man of Okla homa. Dr. A. L. Chilton, eye specialist, will bo In Montpelier June 29 from 3 p. m. to 7 p. m.; June 30 from 8 a. m. to 8 p. m. at the Christman Jewelry store, and In Paris, Stuck! home. June 29, from 10 a. m. to 2 p. m. Come early as I must leave it 2 o'clock sharp. Mrs. William Hunter returned to her home hero Tuesday from Soda Springs where she underwent an op eration. Mr. Hunter, , MfWses Marie in<î Viola Mu Ben and Tamise Cherry returned to Pocatello , Monday after a short visit with rela^ Uvea and friends here — / The fed lowing wero week-end gnosis of Mies Pearl laingford at her home In Garden City: Misses Viola Collette. Marcella Collette and Thel ma Lanrforit; Harold Tippets. Mar lon Freeman. Darrell Welker and Charlie Schick. Idaho during the past bien in the bill follows: five-ton four-wcol trunks. 500 fivo and one-half dump trucks, 2000 trail mobile one and one-half tonn four-wheel trail trail mobiles, equipped 10 00 ers. with water tank, 1000 trailers, three ton four wheel, 200 trailers, five-ton Local News . ... Phb' tf Hho 'was accompanied by 81*12141, PROGRAM. A program will be given in tbs stake tabcrnack* next Sunday even ing at 7:*0 p. m. under tbe auspices of the Mutuals of tbe First ward. Otis Bateman of Bloomington, re cently returned from the Southern StateV mission, will be the speaker. A musical program win be given. Two Biff Day8 of Shoppinff to be Interspersed With Rec reation Plan of Montpelier Merchant»—Benefit People. On Friday and Saturday of Aliis week, tile city of Montind it»r will iuauffuratc its firau "Dollar Day," and everythin#! points to a most successful ob servaiU'o of the event. Dollar day is a day upon which the dollar will predominate, and bargains such as the dollar has «»over before seen, will be sold by all the merelumta ol Mont y holier.] The dollar will even tnrra sack of flour during the two tiny»—somethin# that has not occurred for a good many years. (The Chamber of Com merce will distribute on Dollar Day hundreds of fifty pound hags of Turkey Red Flour, the brand made by the MontjM'lier Milling company, for $1.00, ami this is only one feature of the many that will he equally as good for the visitors to the city Friday ami Saturday. "Dollar Day" does not mean that the merchants of Mont IM'lier are goin# to sell "any article in the store" for one ^dollar, hut it does mean that the merchants—every one of (them, will have their counters loaded down with values far in *^^^ of """ dollar th.lt will . . .. , « ^ Hold oil thoHO days for $1.00, There will he Imild concerts each day by Paris ham), and in .. ,,rohnl»i1it v n hidl irnmc will proDamiuy n nan gnme Will jfeapiro the opening day. r r» (lay, Juno 3. DlUlCOS Will ho ; l,„|d H t Staley's and at the Pa v jjj on on( , h „voninff. MAIL SERVI0E ON NO. 17 AFTER TODAY _ _ . . Preparations are under way for a rom»»«K celebration in this city on ! J uly fourth. While no official or gnnlzalion has been effected to ban-/ dlo the affair, the matter brought to tho attention of the Cham 1 her of Commerce next Tuesday even-, ing, when definite plans of procee U ,ur " »«I »» ** ■ g 8 **® 8 ;*** j! av- * * rl1 * *•*• •••* ••jjj |, n *° a h*** 1 b ' l, i **"• Children * sport.« and band musto are other features that will receive duo attention. Everyone Interested in a celebra tion should attend the meeting of the Chamber of Commerça Tuesday even Ing and express their opinions on the I matter. ^ ,3* Through tho efforts of Postmaster Frauds M. Winters Montpelier will bo given mail service on No. 17, loav Ing this city at 3:16 p. m., for all points west, both local and to Utah and southwestern pointa. WILL CELEBRATE FOURTH OF JULY will be Purchase Fine Oar. K. H. Cornwell of Ibis city lost w,M5k purchasod from Oroo A Too», er, a fine 1922 model Onlck. It It tho only tiulck of that model la Bear Lake county. ADDKKMM HUHOOL KXKR41MKH Prof. W. K. Morgan went to Parta Tuesday morning where he delivered in educational address at the clos ing exercises of the grade schools Next Krlday P**»f. Morgan will go to Randolph to dsllfer a similar sddrees it the closing exerciaoa of tbe Rich county schools. PHOSPHATES BEAT SODA. In on* of the best games of bal! played In this part of the slots In a long llms, Montpelier beat Soda Springs at Soda oa Memorial day by a score of 9 to 2. Tbe gams was fast throughout, and the gams was most ngroeabls The Montpelier battery was com posed of Mullca and Sharp. For So Springs. Msngura, Lynn and arfimsn. Umpires, Marriott and Bales. SODA SPRINGS HERR SUNDAY The Soda Springs ball team will pome to Montpelier next Sunday for a return game with the Phosphates. Tb* game will start at I;80. Tho local boys ora In fine shape and with a good crowd of rooters will "put It over" the "Floa Waters.** Don't fall to see this gams. WARD no RO an— GENEVA «B In the M I. K. baseball gam« at Ward boro on Memorial day *»• Wordboro team defeated lbo Geneva team by the close score of *« to 1».