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About The frontier. (O'Neill City, Holt County, Neb.) 1880-1965 | View Entire Issue (Dec. 15, 1910)
The Frontier Published by D. a. CHON IX, II ib© Year 75 Genu 81i Months Official paper of O'Neill and Holt county. ADVERTISING KATES: 0i*u*ay ad ver tie menu on pages 4, h and 8 re charged for on a basis of 50 oeuts au inch one column width) per month; on page 1 the oharge Is II an inch per mouth. Local ad vertisements, 6 cents per line each insertion. Address the office or the publisher. CRONIN AND BOND LIABLE. Supreme Court Holds them Liable to Editor of Frontier for Damages. Last Saturday the Supreme court of Nebraska handed down a decision in the case of Cronin vs. Cronin, revers ing the action of the lower court and remanding the case back to the dis trict court for trial. Following is the opinion handed down by tbe court. 1. When the county board has des ignated tbe newspaper in which the notice and delinquent tax list and no tice of tax sale shall be published un der the provisions of the act of 1903 for the collection of delinquent taxes, the treasurer has do discretion iu the matter. It Is his duty to publish the notice and tax list in the paper so des ignated within tiie time and in the manner provided by the act. 2. When the treasurer refuses upon demand to furnish such notices and list to the proprietor of the paper so designated for publication and such proprietor Is damaged by such refusal, the treasurer is liable for such damag es, and the same may be recovered in an aotion upon his official bond. Skdwick, J. Thfl nlninHfT allnunH In Vila notitlnn in the district court that Holt county was proceeding under the act of 1903 for the collection of delinquent taxes, commonly called the Scavenger Act, and in those proceedings the county board, pursuant to the statute, duly designated the “O’Neill Frontier” a newspaper then owned and published, by the plaintifT, as the paper in which the delinquent tax list should be pub lished, and that the treasurer of the county refused to furnish the plaintiff with the copy of the list for publica tion but did furnlsh|it to a rival paper in which it was published. The plain tiff in the action sought to recover damages from the treasurer and the sureties upon his official bond, who were made defendants, for the wrong ful oonduct of the treasurer In that regard. Each of the defendants sep arately filed a general demurrer to the petition, which demurrers were sus tained by the court and the aotion dis missed. The plaintiff has appealed. The plaintiff does not set out at large the faots from which the dam ages which he claims should be es timated, but no objection is made to (be petitions in (he briefs upon ftints ground and we are therefore assuming that the allegations are sufficient to show that the plaintiff has suffered at least some damages. The contention of the defendants Is that the plaintiff has shown no such Interest In this publication as would entitle him to maintain this aotion; that his inter est is too remote and contingent to be the basis of a right of whloh the law takes cognizance: that this act was not passed to enable Mr. Cronin to re ceive benefits from his paper; “That was no part of the design of the Legis lature ” It is said in the brief that the aotion of the county board design ating the plaintiff's paper is not in any sense a contract; (be contract, is made by the treasurer and not by the county board; and that when there is no contract there oan be no breach, and as Cronin was under no obligation to publish the tax list, there was no ob ligation on the part of the trersurer to furnish him with the list, since in order that there shall be a binding contraot there must be a mutual ob ligation. The defendants have furn ished us with an interesting brief in which they cite upon this proposition Smith v. Yoram, 37 la, 39; Iowa News Co. v. Harris, 62 la. 501, and Stong v. Campell, 11 Barbour (N. Y.) 135 Smith v. Yoram, supra, was a proceeding by certiorari to correct the proceedings of the board of supervisors of Jones county in the matter of selecting a newspaper in which the laws and pro ceedings of the board should be pub lished. In the opinion, quoting from ft former decision by that court, it was said: “No publisher has such a Rested personal interest in enforcing its provisions, that he can thus resort to the courts, and compel the board to select his paper and have these laws published therein. The duty is im posed on the board; they are the cus todians of the power, but nojone can insist upon its performance or exer olse because he happens to be vat the time the owner of a newspaper.” Strong v. Campbell, supra, which was tea decision of a nisi prius court, was in action for damages by the propriet or of a newspaper against a postmast er for refusing to receive proof m re gfttd to the circulation of the paper add refusing “to give them the pub lishing of the list of letters remaining m the postofflce.” The court, by Johnson, J., said; “I have not deemed it necessary to examine the questions raised as to the sufficiency of the av 'V iv. m /Ac erments In the declaration conceding the action to be maintainable, be cause in my judgment there is no foun dation whatever in law for an action, under any conceivable state of (lead ing. for such a cause ” While these and other similar cases which we have examined are perhaps distinguishable from the case at bar, it must be said that much of the reasoning employed might be applied to this case also. The circumstances out of which this litigation arose have been already twice considered by this court. In state ex rel. Cronin, 75 Neb. 738, this plaintiff sought by mandamus to com pel this defendant as county treasurer to furnisti him with the notice in question for publication The facts upon which this litigation depend were stated somewhat at length in that opinion. The principal question to be. decided was whether the county board had duly designated the plain tiff’s paper as the one in which the notice was to be published. It seems to bane been conceded dr assumed that if the plaintiff’s paper had been duly designated by the county board, the defendant as treasurer had no dis cretion in the matter, and Indeed this would seem to be the effect of the leg islation upon this subject. The right of ttie plaintiff as relator-to maintain the action appears not to have been doubted or discussed. It was said that the trial court was justified in deny Ing the writ “because it appears to be conceded that it would have been un availing had it issued, the time being too short after the decision of the dls trict court to take the steps and make the preparations necessary to enable the anDellant to oubllsh the list with In the time required by law.” Ills also sakl that “Tlie appellant’s right to publish the list was mere abstract right. But the situation was^lffereat when this suit was begun. At that time, had the appellee moved prompt ly to the discharge of his duty, the appellant could have made the publi cation.” Wltlle the writwasnota ward ed the costs of the proceedings were taxed against the defendant. This was done solely upon the ground that the relator was entitled to the writ at the time that the action was begun This, then, was a determination by this court that the plasntlff in thle case had such an interest In the mat ter as to enable him to maintain ar action against the defendant. Again in Miles v. Holt County, 86 Neb. 238 which was an action against thecoun ty by the publisher of the newspapei in which the notice in question war actually published by the treasurer, li is said that the publication was made in the paper; that the treasurer acted willfully in the matter, and formerde cisions in this court In whicli simllai rights have been asserted were citec and quoted from without criticism It would seem that this court is com mitted to the proposition that the plaintiff has such an Interest to en able him to maintain the action There are some considerations justify ing this conclusion that perhaps can not be found in the cases cited by the defendant. Under our statute the duty is in the first Instance imposed upon the county board to designate the paper In which these publications are to be made. When the county board has acted and has designated the paper for that publication the treas urer has no discretion in the matter. It is his duty to furnishjthe notice for publication to the paper designated by the county board. The petition alleges that after this designation had t een made this defendant was not!fled of that fact by the county clerk, and was personally notified by the plaintiff, and was informed by the plaintiff that he, the plaintiff, had made preparation to publish the list as directed by the county board and was ready to do so and demanded that the list be furnish ed to him by the treasurer for that purpose, which was refused by the treasurer. It it Is conceded, as it ap pears to be in these briefs, that the plaintiff bad accepted the proposition of the county board to publish the list in his paper, and that the treasurer de prived him of the legitimate profit by Kia nnlamfn) n At «»a t hlnU tVinf f Via petition states a cause or action for such damages as the plaintiff has sus tained by i lie misconduct of the de fendant. The general depo urrer of the defendant and his sureties should .be overruled. The judgement of the district court is reversed and the cause remanded. It will be seen by the above that once again the supreme court of the state has sustained the contention of The Frontier and its attorney, R. R. Dickson, that this paper is entitled to damages from D. J. Cronin, late treasurer of this county and his bonds man, for railure to deliver to it the Scavenger delinquent tax list for pub lication in July, 1905, after the same had been awarded to it by the board of supervisors, that body having the authority to declgnite the paper in which this notice should be published. As this is the second time The Frontier has won In the supreme court cases growing out of the failure of Cronin to deliver to this paper the Scavenger tax list for publication, a brief resume of the facts in the case might not be out of order, in order that our readers may thoroughly understand the case. - - — - - i-r-r ' ' ’ --— " ~ In January, 1B05, the county board elected to col.ect the delinquent taxes of the county under the act known as the Scavenger Act, and ordered the county treasurer, at that time, D. J. Cronin, to prepare and publ sh the noti.ces as ptovided by law. On April 21,1905, the county board designated The Frontier as the newspaper in which the treasurer should publish the notices required under this act. Tills designation the county board had the authority to make the law clearly staling that the county board should designate the paper in which the notices should be published. The county treasurer ignored the action of the county board and gave the no tice to the H ilt county Independent for publication and the first notice was published in that paper in July, 1905. The Frontier brought man damus proceedings against the county treasurer to compel him to give the copy of the notice to the Frontier for publication The mandamus proceed ing was tried before Judge Harring ton who held that the mandamus would inn lie because the designation as made by the board was not a legal designation of the Frontier. The mandamus case was appealed to the supreme court. It holding the designation sutticent and that it was the duty of the treasurer to have pub lished the notice in the Frontier. The court In its opinion severally cen sured Treasurer Cronin for his action in ignoring the orders of Ihecouuty board. January zj, iwuo, uenuis n. Oronin, proprietor of The Frontier, brought suit against Daniel J Cronin and his bond, The United States Fidelity & Guarrantee Company of Baltimore, Maryland, for *4,019 50 and interest on $2,669.50 at 7 per cent from July 1, 1905, and interest upon *1,350.00 from October 27, 1905 The amount claimed was damages for the treasurer failing to perform his duty as required by law in delivering the Scavenger tax notice to The Frontier for publication The amont Involved was the legal rate for publishing the notices as reuqlred by law. The defendants tiled a demur rer to the petition, alleging among other things that the petition of plaintiff did not state facts suffl olent to constitute a cause or action The cause came up for hearing upon the demurrer before Judge Westover on (December 14, 1908, and the court sustained the demurrer, dismissed] the case and taxed the the costs to the plaintiff. Tiiis is the case cited above that the supreme court reverses and sends back for trial. After the lapse of five years and a half it seems as if The Frontier; was now In position where it would7 get justice and that D. J. Cronin once treasurer of this county, and his bondsmen would have to pay this paper for the profits upon the tax list which was stole from it in July, 1905 Honesty is always the best policy and we wonder if the ex-treasurer of this county does not sometimes think it would have been better for him to have conducted his office as by law provided instead of allowing A. F Mullen to tell him what to do and then blindly follow instructions. By winning this case Attorney R. R. Dickson has added another feather to his cap and won a decision of far reaching importance. Pitted against him in this case was one of the lead ing law firms of Omaha and few mem bers of the bar in this section believed that he would be able to win the case. But Mr. Dickson was always confident that the case would be won. Fight ing against one of the greatest politi cal acts of piracy ever commited in the history of the state he was posi tive that the laws of Nebraska were never Intended that a public official and a gang of political pirates could wilfully rob a man of his just rights and get away with it. Knowing that right and justice were upon his side be fought the case ably, fearlessly and energetically and defeat in the dis trict court only spurred him on to greater efforts in the supreme court. It was a great victory and R, R. Dickson is entitled to congratulations upon ills successful conduct of the case up to date. ± ue riuubiei laiia tu see vvnaii muu of politics Governor-elect Aldrich is playing when he appoints a political hypocrite like W. It. Jackson to one of the best offices at his disposal, that of pure food commissioner. Mr. Jackson was a candidate upon the democratic ticket at the last election for the office of state superintendent anil outside ol Jim Dahl man was defeated by the biggest majority of any man on the ticket. In this county, in which Mr. Jackson lived for about ten years and served four years as oonnty superin tendent, he received less votes than any man upon the democratic ticket which does not speak very well for his standing among the people where he is well known. For our part we be lieve Mr. Aldrich made a mistake in this appointment. It he wished to hand the appointment to a democrat he could easily have selected some one whose political record was not taiated with hypocricy to accept the plum, and n > republican would have found fault with the selection. But when he selects a man who has been re pudiated by the people of the state, and a man who has a backbone as stiff as a rubber doll, to this import ant position, people of the state re gardless ofpoliticstaveakick^oming. > NEIL BRENNAN -WISHES TO ANNOUNCE That he has a large and complete stock of wagons, I Buggies, Carriages, Spreaders, Feed Grinders, Gaso line Engines, Corn Sheliars, etc. Also washing | machines, Churns, wringers, Tinware, Granite ware, wooden ware, Cutlery, Silver ware, etc. MAKE YOUR SELECTION EARLY 1 IAnd get your choice. Do not wait until the I stock runs down. i heated to’thapnlnt of f! Where pressure water Is used boiling, while breaklast Ir !„'* malleable iron p.nwxlensiOO is cooking. Whan water Pi ]*a{f.r ,ron*> has more I gets too hot reservoir § *eaJi"9 ‘ha" a"Y can be moved away ;||! other, supplies abundance from fire by shitting n of hot water to the leaver shown. ,’il all parts of the house It takes the & ki\ Place of reservoir. j during the Holidays we WIL DONATE FREE With every Majeftic Range $8.00 worth of Cooking Utensils of Your Own Selection. On all other Ranges and Cook stoves we will allow a dis count of 5 per cent. Also a large reduction in the price of Heating and Cook Stoves. ' ^NEIL BRENNAN ^ The New Market \ f*————1 ■ THE ANNUAL EXECUTION ot Turkeys, Chickens, Duck and Geese isenormous. We are careful in our selection of Poultry, and we never per mit any “Old Birds’’ to come into our store. The Poultry we offer has been specially raised for food, and all that skill, care and knowledge could do has been done to make the meat tender, juicy and of tine flavor. Better make your select ions of Poultry here. Shoemaker Bros., prop THE O’BEILL ABSTRACT * 00, Compiles Abstracts of Title [•HE ONLY COMPLETE SET OF AH ITRACT BOOKS IN H JLT COUNTY Township Order pooks, ai)d i 1 Orders oi) County Treasurer i w Jl manufactured a FOR SALE /Kt M M-Jlf |«CH THE FRONTIER „c» | See Us Before You Huij jf ^FLOUR^ We have several brands, all of them good, and will make the lowest prices to you. All Kinds of Grain and Feed Agents for all makes of Cream Sep arators. Bring us your Cream as we pay the highest price. Zimmerman # Conklin SUCCESSORS TO J. H. WISE