10 TITE OMATTA DAILY P.KK: SATFRDAY. DKCEMUKR IfiM. OFFICIAL PAPER CASE IP World-Herald! Petition to Mandamus Oity Agiinit The Boa in Com:. JUDGE DICKINSON SITS AT HEARING Actlea l Oatgrawth ot CaaaelTa lie claloa, After (arrfal lareelga tloa, tkat Be Has Larger I Ironist Ion. The controversy between The Bee and th V'otld-Hcrald to secure the dec'aratlon and appointment ot an official paper ho been carried before Judge LMcklnsun on the pe tition of the World-Herald for a writ of mandamus to estop the city council from carrying out lta avowed purpose ot desig nating The Hee aa the official paper of the ilt3', following a hearing In which both aides to thla controversy have previously ret forth their claims, wherein It waa shown that the World-Herald'a claim to a circu lation of 6.000 and the further claim that It waa the lowest bidder .were dlsproven, and tho city council thereafter declared The lice the official paper of the city. The writ .for the mandamus Is the outcome of thla action on the par: of the council and la asked by the World-Herald. Xn the beginning of the case yesterday City Circulator Hemming of the World Herald was put upon the stand. Mr. Hem ming testified that the World-Herald now has twenty-eight routes for the delivery of the Evenlfit ' World-Herald, each of which waa In charge of a carrier whose duty It waa to deliver the papers dally and to collect the subscription money. It was shown that the actual list of subscribers was vested In the carriers themxelves, rather than being a matter of record on the books of the World-Herald. Mr. Hem ming could not testify as to the number of subscribers during the last week In June, which la tha time designated by law for the filing of bona fide circulations on the part of such papers as may desire to bid for official printing. Connell Make Motion. ' W. J. Connell, attorney for The Bee, then attempted to aucertaln the extent and character of the actual knowledge of Mr. Hemming aa to the methods and manner of determining the circulation of ' tha World-Herald and as to whether he ' was competent to testify upon that point. Mr. Connell argued that the World-Herald should not attempt, nor did It have the right under the low, to Intrciuee new evi dence, nor make an different showing from that which was attempted before the city council at the time when tho question now in controversy was settled In September. Mr. (Connell objected on the ground thru Mr. Hemming' testimony was Immaterial, irrelevant and Incompetent; also espe cially for Jhe reason that the petition fljcd In the case does not state facts suffi cient to constitute a cause of action or sufficient to entitle the plaintiff to an In junction, or sufficient to entitle the plaintiff to a! writ of mandamus, or to any writ of relief whatsoever; also for the rea ls on that a mandamus will not require the mayor and council to do an act In the performance of which discretion or Judg ment Is required to be exercised; also on the ground that in the pleadings and un der the undisputed Issues in this case, a shown by the petition . of plaintiff, the answer of tho mayor and council, the petition of Intervention of The Bee Pub lishing company, the supplemental petition of Intervention of The Bee Publishing com pany, and the reply ot plaintiff, the judg ment ot this court must be for the mayor and council and said Dee Publishing com pany and against aald plaintiff. Also for the additional reason that said f testimony does not relate to the evidence which waa before the members tat the city council In general committee. Also for the further reason that It la not stated In the petition, nor Is it now claimed by counsel for the plaintiff, that the member of th city council. In determining that the Even ing World-Herald did not have at least S 000 actual and bona fide subscribers, and waa not the correct bidder, acted fradu lently nr.r colluslvely, or did not act In good faith. Bee Proves Its Claim. To further establish the undoubted right of The Bee to Its claim of being the lowest bidder, and that It had an actual bona tide city circulation of more than i.OM) subscribers, Mr. Connell pointed to the hearing which had been made before the city council, as required by law, and the resolution which wAa afterwards adopted by the city council, as the result of Its Investigation, wherein it was recited that The Bee's claim was found to have been clearly proven and substantiated In every particular and that the claims of the World-Herald had been dlsproven. The resolution adopted by the city council on September 29. aa a result of Its Investiga tion In thla matter. Is here ahown: Whereas, by the express provision ot the charter of cities of Jhe metropolitan class it is made the duty of the city clerk, during the month of June of each year, to advertise for proposals for publishing In some dally newspaper all city notices, or dinances, etc., which bids aro required to be presented to the council at its first meeting In July, and Whereas, the city clerk, aa required by law, did advertise for bids In the month of June, 1903, and at tho first meeting of the council In July did submit the bids of The Hee Publishing company and the World-Herald Publishing company to said city council at Its first meting In .. ulv IHjJ, at which time and place a written protest was made and filed by The Bee Publish ing company that the World-Herald Pub lishing company was not the lowest bidder and did not have S.ono actual and bna fide subscribers for the Oman Evening WorW Hersld in aald city of Omaha, and Whereas, by the express provisions of said charter It Is required that the daily newspaper In which such publications are to be made must have been published for at least one year Immediately preceding the time ot making the bh1 and must have at least 6.000 actual and bona tide ub scrlbera In such city, and Whereas, for the purpose of determining which of said bidders was the lowest bid der, and for the purpose of determining whether the World-Herald Publishing com pany has 6.000 actual and bona tide sub scribers for the Omaha Evening World Herald, the members of the city council. In general committee, held numerous and extended meetings for the purpose of prop erly determining such matters In dispute, and at which meeting the said bidder, their attorneys and representatives, were present and offered evIHence and made arguments; and, Whereas, by the express provisions of said charter the power to make all con tracts and to all other acta In relation to the property and concerns of the city necessary to the exercise of Its corporate or administrative powers, is vested In the mayor and council; and. Whereas, It has been shown and mode to appear to the members of the city coun cil on the hearing of the contest between The Bee Publishing company and the World-Herald Publishing company for the publishing of all public advertisement, notices and ordinances on account of the city for one year as per notice of the city clerk, dated June 17. 1903. that the Bee Publishing company is the lowest bidder for such publishing and that the World Pub- CHARACTER Is the measure of the man also tte measure of the man's clothes bearing this famous mark jfjpd)enjamine5(j MAKERS NEW YORK "Character" is the watchword of BENJAKIK workers. From the first shrinking to the final pressing their one aim is to give the garments Individual ity a character of their own. Benjamin Winter Suits are designed, shrunk, cut, and tailored by 3,000 salaried specialists In the most spacious and sanitary tailor-shops in the world. Tha prlca U rl.ht Your money back if anything lots wront. w ar mns vuirUHMori IKM. 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"Vaaaa, VOMENs llslilng company is not the lowest bidder for such publishing and that the Evening World-Hera Id did not have 5,ono actual and bona fide subscribers in the city of Omaha as required by law; therefore. Be it resolved by the city council f the city of Omaha, the mayor concurring: That the bid of the Bee Publishing Com pany, for pullshing In the Omaha Evening Hee all of said public, advertisements, notices and rrdlnancea, on account of the city under the proof submitted to, and ahowlng made by the respective partiea be fore the members of aald council In general committee should be and hereby la de clared and determined to be the lowest bid, and that said Omaha Evening Bee, at the time of making said bid, and for more than one year prior thereto, had over 7,000 actual and bona fide aubacribera, and said mayor and council further find and declare that said World Publishing Company Is not possessed of the qualifica tions of a bidder as required by law, and that the Omaha Kvenlng World-Herald, on June SO, 190S, and prior thereto, did not have 5.000 actual and bona fide aubacribera within the city of Omaha, and that tha said Bee Publishing Company, at the time of making said bid and aa ahown upon aald hearing, possessed all the qualifica tions required by law. for a bidder of such publishing, and that under aald proof and showing the aald Boe Publishing Company Is entitled to and ahould receive the con tract for dolus such publishing in the Omaha Evening Bee, until July, 1904, and that a contract therefor without further delay, should be made and would be now ordered but for the Issuance or a tempo- mrv tnlunrtinn allowed bv Hon. Ouv R. C. Read, one of the judges of the district court, and be It further. Resolved. That until the said temporary Injunction ao granted by Judge Read la va cated or dissolved or until it has been Judl rlallv determined that the mayor and coun cil have the right and authority to ao desig nate such newspaper ana maice sucn con tract il. Mf no further action with reference to the designation or an omoiai paper oi the city or the making of a contract for uch publications do taaen. Books Void of Trao Record. In the questions submitted to City Circu lator Hemming of tha World-Herald by Mr. Connell soma Intereatlng facta were devel ped, one of which waa that no true record of the bona fide circulation ot tha paper could be ahown or Indicated by the books of the concern. Mr. Hemming testified that the books would show tha number of papers delivered to tha carriers, but that they would not ahow the amount of cash which had been paid to the carrlera by tha actual bona fide subscribers. It also waa ahown that there waa no record made or kept of tha recalpta from the subscribers. and that the books only show the payments In cash made by the carriers for pupera which had been furnlaheU them for delivery to subscribers. It waa ahown that only when required to do ao did the carrlera aubmlt a Hat of the aubacribera for whom and to whom they were furnishing papers. Once each month It waa atated that tha carriers ordinarily turned In such a list, but that auch lista could not now be produced for the reason that they hud been destroyed. It also waa ahown that some ot these namea had been placed on file, but thla waa not always done and for that reason It would be impossible to ascertain tha actual number of bona fide aubscrltiera to the World-Herald at any given time. Another important point in thla . con nection waa developed when It waa atated by Mr. Hemming that wherever tho books would indicate the number of subscribers at any given time, tha aubacribera to tha Evening World-Herald could not be differ entlated from those to the morning paper, since the receipts for the two papers were Iwaya combined, since only a few of tha routea are independent of the morning paper. Vnder tho continued questioning of Mr, Connell tha admission waa made by Mr, Hemming that all ha actually and person ally knew as to the exact number of sub scribers to the World-Herald during 1903 and up to the present la limited to tha re turne aubmltted In writing or verbally fey the carriers. World-Herald Ada Void. in his arguments Mr. Connell aald that but two quertlona are at Issue in this con troversy, namely, whether the World lier aid had t.OuO actual bona fide subscribers and whether it waa the loweat bidder. An important point waa scored by Mr. Connell when he argued that sine the mayor and council, after continued deliberation, had determined that tha World-Herald did not have l.ouu actual bona fide subscribers, tha if important publications or advertisements which are required by law ahould be placed In that pauer they would bo void. Then It was that Mr. Connell followed this up. with tha luw point that the World-Herald had r.o right In this hearing before a court of tha law to introduce new evidence nor to make a different showing from what It had made before the city council. Mr. Connell elated that the only ahowlng which could be attempted at thla time ould to ana hli. endeavored to aaow WHICH WILL YOU HAVE? If f V : ASF Genuine Diamond, lvex-Aat Price, 1125.00. imw mm & sa, y i Solitaire- Drop Earrins. .v Dupllcatea of the fataoos jew- ;, l&jl-'. sJf ele worn by Uo. Barrloa, i t?--..-. j pronounced gennloe by ex- i Star Til! IDT Sunburst. ! perts. These earrings are ot n- , tra heavy gold piste. warranted 1 Aa eaqalsltely beautiful and i to wear for IS years. Bet with biilluutt collection of blne- perfectly White and brilliant i' white stones. A broeo which stones fast absolutely defy ' could not be dnpllcated In en deteetlon. They seem to be vine diamonds for less tbaa wortli at leojt Jae f ft , Orrr prlee. (ft) mg 160.00. Oor IhZ-llll and yen eanrt tell 2)Z.3U price V-vw It frem theiennlnt'raVa V -SiA ! : .' ' U- t- - ; I fit" r : ; I s : .; wrSf ; A lUv Three-Stone Tit- spltniox. Three white, c j beaottfnl oagrared dealg set wtti MaftaDb'aitAed: aaaall bnt nry MWut fnSwlth. Tkeaa anttops oanaot bo teld frern ' greatest care. A mag l feaalae ftx4 worth - ! ! 5S.00. S2.00 S3.00 ; teetiea. Our price J ' IJSJSJfrnri, Tbree'Stone Gypsy Cluster Ring. Y RiOg. !' Pearl. Ametayet or X . K." i Bapphlre center. Beau- Y Any coinblnaUoa of tlfP whlte ,Da i atones, B"loe Dla- .parting ontalde atouee. X monda, BnWea, Emar- b., "ufuj rUf that 9 : ; 8S3- g I ( - - - - - - -C iuuuuvuv-j-LTJ--arin-- 0 A GENUINE DIAMOND at $125.00 A BARRIOS DIAMOND AT $3.00 There is as little difference between the actual rings as there is in the illustration. Barrios Diamonds have caught the public fancy. Every year they are growing in popularity. To meet the growing demand, the Barrios Diamond Co. now has stores lii Chicago (five on State st.), St. Louis, Seattle, Denver, Detroit, Cleveland, Pitts burg, New York, Bueno3 Ayres, Paris, Berlin, Lon don and scores of smaller cities in the United States. Come and see these magnificent imitations that have caused the wonder of the entire world, FOOLED PAWNBROKERS, DECEIVED EXPERTS & PUZZLED GOVERNMENT INSPECTORS V i; ' , . . Ad. ffY, i M ' i (i "i iili BABHIOS DIAMOND. PRICE, $3.00. Moorish Brooch. A qoalBt aaa beautiful design originally worn as a pendant. Aa exact copy of a Moorish design costing 2T5. Heary gold filled ret with pure white, perfectly brilliant fl ft ft atonea. A special S A II II bargain: oor nrlce V"vw .aaaaAaaaaaaaaayaaBasaatagaaatB Triple Serpent Bln. A anlqoe aad beaatlfal dalrn. Set wlta any enmhlaattnq of atones, ftohles, Bneralda, Tar qaotse or pare white, perfectly brtlllsat Ear rloa Diamonds. A ring that saonia sell for 12& Onr price nns. a nng $3.00 Solitaire Scirf Pin Perfectly w k 1 1 a aad brilliant 7 or 8 karat stones, hand set tn beary gold filled mount Inga Onr price (they cannot be distinguished from the genuine) $1.50 -Tar' 4 iMeMawi'.. -a,,. 1 ft Cuff Botlons. These links are extra beary rld filled, erqulsltsly Ontibed. plala pol Uhed gold wltk one brilliant white stone. Tkey appear to bt worth SBOi They wtu wear forertr and retain their brli- acy. Oat price S1.50 ; mil) f , v : w : f , f -i5s,.i- p ! ( ... . :" '&i$ i Ortcitu Knot. A koantlfnl mall pin of chased gold uidf ana large white atone ot ? er feot eat and br1!'-ry fct the eewter. lt-. pla oaaaot be olstpgrtad by the original, wortk 'O.W. Our $1.50 1 c r H xtm V ;a, rtmmmmjrAxJpi Grecian Scroll Brooch. aaed gola, set with spark ling stones. One f the moot f polar dealgna erer made. KTy n;ied fold piste. Will wear a lifetime. la gennlne diaaoobda this tn I f ft btvoch la w'th riT6.S4.hl! special price .... ,JW if 3 v ;.f - '. . mm) Narfnerlte Brooch. Petals of chased fold, tnoeat- ?i with cla.t.r of sparkling rllllaat. flasalog atoaea la the center and ,cfectiy matched pore white atonea, f extraordinary beaaty, be tween the Detail. A aaanlfi- ceni ornament. Ac-i tually worm U. A nargaia at . . $3.00 rift' 'S3 m. i.' r y Larfe Marqolse Beaatlfal pare wbtto brilllaat stxoea, with Buby, Btnerald or Tar- anotao enter. The olf- foal was worth 1250. rtco . SPE.CIAL SALE. Do not miss this magnificent sale. The most at tractive bargains ever offered In this city values which could not be duplicated In genuine stones for from $25.00 to $150,00, are here offered for from $1.50 to $4.50 each. These goods are the equal In appearance of the most expensive and exclusive designs and positively defy detection. The goods speak for themselves. See them and be convinced. They Justify the closest Inspection and stand the most severe criticism. oooooooooooooooooooooooooxooooo i loo! 9 7 Tiffany Enga.e. ment Rlnf. An exact -copy of the original Tiffany design. The rlsf Is hand , d with perfect care. Ton abeolutoly cannot tell the ring from one with a aenalna diamond 8$L$2.00 t son - i v Engraved Belcher Rln. Hand made, cxqalatuly entrared. Largs, pore white, perfectly bril liant and sparkling stone, guaranteed to re tain lta brilliancy fo erer. Mountings guar anteed for years. Can not be dlstlaaalshed iron) genn- i la. w'th $75. S2.50 that tha council had acted fraudulently, colluslvely or in pursuance of a combina tion or conspiracy, or that It did not act In good faith. A suppository case was then cited by Mr. Connell, in which It waa assumed that aome paper had caused Its circulation to Jump up wonderfully, after the fashion of tho'musli room, just before the time designated by law when the eubacrlptiona to that papr should be shown to the city council. "Would this constitute a legal and bona Ada circulation?" It waa found by the Investigation which waa conducted before the city council that certain routea of the World-Herald had been checked up and gone over carefully and that in many placea the alleged sub aorlbera were taking tho Riper under protest: others were taking It for Just one day or a week on trial; othera were taking It at tha personal request of the carrier, while othera were taking it for various reasons, but none of which would, under tho atatutea. constitute a regular, bona fide subscriber. Finally, It was held that the power to determine the question of circulation and the loweat bidder waa vested tn the mayor and council, and that the mayor and coun cil of the city of Omaha, after a rigid In vestigation, had declared the World-Herald did not have S.OOO bona fide aubscrlbers. Uarley Has His Bay. In making the concluding argument for the World-Herald, W. 7. Uurley said that the question as to whether the World Hcrald hud, or whether It did not have, a circulation of S.nOO was not merely a mat ter In which the city council or the court could exercise Its discretion, but wus a matter Involving an absolute fact. In this connection Mr. Qurley held that the dia cretlon resldlivg In a board, which a court will not review. Is a discretion to Anally determine condition, which, whether it exlata or not. is a matter of opinion or judgment; but where there Is an ultimate fact to bo determined a fact which either does or doea not exist the discretion exer cised In arriving at the ultimate fact is subject to review. , When Mr. Qurley had concluded his ar gument, tha court announced its intention to take up the question again on Monday morning. Meat Batchers. Atteatloa. Master Butchers, take notice. On Sunday afternoon at J o'cloik the funeral of our deceased brother, Justus reteiseu. will take place from the aouthrasi corner of 14th and Charles streets. K full attend ant of member is desired. FOR BIGGER AND BETTER CITY Prominent Business Men Bay Present ii Tim for Qentral Activity. GREAT OPPORTUNITIES NOW AT HAND Commercial (lab Members Assert Tbrooah Mediant of that Body Loral Interests HboaM Be Promoted. That Omaha Is about to rise up in its might and shake Itself there can be no doubt, and In the process a good number of decayed Ideaa aa to the sixe, advantages and preaent condition of the city will be tossed to the winds. Membera of the Com mercial club are prodigal In tho expendi ture of KW-cbunka of thought aa to 'how the 'fair hand of "Commercial advance ment" may be gladly warmed. Various means are being discussed through which the club will be able to Increase lta effect lveneaa In every way. Tho large meetings are In favor. "The preaont la a turning point audi aa tho city has hardly every had," aald O. D. Ktpliuger of the executive committee. "Everything Is leading here and all we hav to do Is to grasp the opportunity. At this supreme time wo ouht to have the help of every one, and without the help of every member we can do nothing. Dur ing thla period we should have semi monthly meetings ot the club as a whole the young members, as well aa those who have been the leaders. Kvory tne has ideas t'.nd we can take the good, and where members are wrong they will learn. Among the members the big buhblea wi:i rise to the surface, aa ou see them in bulling molasses, pushing u'sltle the little on?. Bo any o:ie who has the ideas will coma to the front. Waal Katkuslaain Klrst. "Members of the Commercial clab some time say. 'What's tha .7ia;ier with th Headache Cured and prevented by Dr. Mile' Antl-Patak, Pll'.a, unequaled for neuralgia, toott ache, backache etc. No opiate. Noo-, laxative. Never sold tn bulk. Send for free book on the cure of heedacho a doeeo H oenta Bold and guaranteed by all drug t'Jd kflLtS MEDICAL CO. tlkhart. In,. club? I've been a member for years, but there never eeema anything for me to do.' Wo ahould have twenty good meet ings of the' whole club a year In place of one. We want enthusiasm first. If a man has no enthuHlasm fur his biislneHS Jie docs not get on. It la tho aanjK In tho club. If we have cnthusluam we can get money. We don't want enterprises to come here which need bonuses. Those which have not been a success elsewhere will not win out here. We want men with money to locate in Omaha. ' "It is a mistake to say as - some are saying, that the club has done nothing. Everything that liaa been done lit Omaha for years has been fathered by the club and it has been a home for all manner of euterprixes. The trouble la to get the strength of all tho members. At the meet- i lug Tuesday there were only about sixty- three, and a look around would ahow that beyond a few new facea they were the sums old wheelhorscs who hav started every thing which has been done in Omaha." "Th Commercial club haa been the father of all th Important propositions whlcU have come up In this city aince Ha organi sation," said A. Hospe. "Just suppoae the club should go out of exlstenc for a while; people would soon begin to remember what tha club had done. I am in favor, however, of a meeting of the entire club once a month, business and social, with perhaps a little dinner. It would be a good thing If th membera would attend the weekly meetings of the executive committee and bring up all matters which they think will bo of use to the club or city. They could send us suggestions. The meetings are open, but members have nut taken advan tage of them In this way. I think that they would, however, if they had any griev ances." Hospe Claim. Mack for Club. "Wo hav only 450 members and the fe I only (2u, while In other cltl- It is I to or IjO. For tho money we have I will tay that the club has dune more than any cinb In the west. I have been a member of the club since IsM and of the executive committee for seven or eight years, and during that t:me ail the successful things for the goo'.l of tha city started in the club and were organised tnere, among these the society circus, the TransmissU aippl, the Ak-Bar-Bcn and the street fairs, the Auditorium and the Business Men's as sociation. The club has undertaken at great expense trade excursions; It pays railway far rebates to out-of-town customers who bring thousands of dollars to Omaha; It bus taken up the irrigation movement; it har 0CVOCK000.000''K)00C''000-000'00-0-00 o . o o ? o 9 o Edison Phonographs Have brought liiippiut'KK to thousands ami thousands of. home. Modem times have not produced its equal for amusement and inntruetion. Edison Machines The High Speed Columbia Moulded Record old on easy payments from $9.00 up. JO.OOO of the HARD HOLD MOULDED RECORDS from which to make your selection, at SOc each, or $i. 00 per dozen. . We are the larj-eM A I 'TOM OH ILK DEALERS between Chicago ami Sau Francisco representing the Wiuton, Peerless and Kuox machine. 8 n w ite for catalogues. Dealer wanted in everv city. II. E. FREDRIGKSOFJ, Omaha Neb. o . o . o c o . o . o o o 15th and Capitol Ave 'Photic 2161 8000 oooooooooo 0000OeO00000008 entertained dlstlngulnhid !!toro to the on at tha club. Every busluesa man In the city; its members held the business men's ilty should be a member of the club, then meeting on tile tax asse.Mment. and the ' we would have Just so much more, club l a. fjrni.iird a meeting place lor . strength." the Heal Kstate exchange and various so cial and fraternal societies. Gets lOO.OOe) m Tear "if there Is anything on the tapis of l'u- Because he baa a keen, clear brain In a portame the meeting ia called ut, the Com- j vigorous body. Electric. Bitter give both," men ial club. Not a day goes by bt tliat : and satisfy or no pay. Try them. sue. something for the public good Is not go' ; rv b Kuba A C.