Daily Yellowstone journal. [volume] (Miles City, Mont.) 1882-1893, 1886-02-25
CUSTER'S CAUSE
In the Territorial Supreme Court
is Remanded Back to the
District Court
To be Tried at Bozeman Early
in Aprll-District Court
Proceedings.
A Sad Plight-Another Scheme
by De Mores-A Race
Track.
CUSTER VS.. YELLOWSTONE.
The supreme Court Decision.

The supreme Court Decision.
A remittitur in the case of Custer
county, appellants, vs.. Yellowstone
county, respondents, for the sum of
s57, 547.6O has been issued by the su-
preme court of the territory remand
ing the cause for new trial. 1t will
be remembered that this case was
thrown out of court by Judge Coburn
at Bozeman in November last, by the
sustaining Of defendants demurrer to
the complaint, alleging no Jurisdiction
In the district court The case was
appealed by Custer county to the SUI
preme court and hearing had at the
January term, resulting in the reyers-
al Of Judge Columns opinion as to
lack of jurisdiction, and by the action
above noted 1t is again placed on the
docket for trial. The opinion deliver
ed by Jadge Galbraith, Judge Wade
concurring, is very clear, and although
too lengthy to reproduce In whole.
some portions Of it will no doubt be
satisfactory reading to the taxpayers
Of Custer county. Concerning the
creation of the Indebtedness he said:
The legislative assembly had the
power to prescribe, and did prescribe
the conditions on which the county
of Yellowstone should be created.
One Of them was that 1t should pay its
portion of the Indebtedness Of the old
county Of Custer over and above the
cost Of the public buildings, real estate
and money in the treasury, Of and be-
longing to Custer county. No doubt,
In the eyes of the legislative assembly,
as is apparent upon the very face
thereof, this provision was proper,
equitable and just. When, by the
terms of this act. did this Indebtedness
arise ? Sect. 2 of the act provides that
the Indebtedness Of the county Of Gus.
ter as the same shall exist on the Isl
day Of March, 1888, shall be appor-
toned between said county and the
county of Yellowstone, and then the
provision for the manner of the appor-
tionment follows. This was not
merely the recognition of q moral
right in Custer county, and q cores
ponding moral obligation upon yell
lowstone county in respect to this In
debtedness, to be afterwards erected
into legal right and corresponding
legal obligation by the action Of the
commissioners Of both counties al
their meeting on the first Monday Of
March, 1888, as provided In Sec. 8
but 10 was then and there the creation
on the first Monday Of March. 1888, Of
legal right In Custer county to hsve
paid to 1t, and . legal obligation upon
Yellowstone county to pay to Custer
county in the manner provided IN the
act Its proportion Of the Indebtedness
as It existed on that day. We enter
tain no doubt but that the payment Of
such Indebtedness may be enforced by
judicial authority. .' e.
The claim that Sec. 8 Of the act,
which provides for the meeting Of the
commissioners Of both counties and
the adjustment by them Of the indebt
edness, constituted them when thur
assembled q tribunal having the cole
power 10 ascertain the indebtedness
and the exclusive Jurisdiction to en-.
force IL, 10 shown TO be entirely In con-
fiict with the laws of the United
States, the laws Of the territory and
with.the act itself. Neither was II
thought by the supreme bench that
the meeting Of the commissioners on
the first Monday In March. 1888, was
essential to enable the County OF
Custer 10 bring this action. 1t appears
that they did not 20 meet, but 1t also
Appears that che commissioner Of yell
iowstons county have since refused,
and stiIl refuse 10 meet and apportion
the indebtedness. Time was not the
essence OF the apportionment and
there IL nothing In the act which
makes IL appear %. The debt 81 u
existed on the first Monday In March
was to be apportionsd. Nothing there
after could increase or diminlsh H.
Neither wasn't thought that the msst-
Ing Of the commissioner % any time
TO spportion the Indebtedness xas abb
solutely essential to the commence
msnt Of this action. This can -
jwtly and effectually be done BY the
district court. The deeIsiou fully
covers several other points In the de-