The river press. [volume] (Fort Benton, Mont.) 1880-current, 1888-05-30
oBITER DICTUM.--DICTA? ?
The Celebrated -Choteau vs. Cascade.

Falls Tribune, having misunderstood and
nisconstrued Judge Bach's remarks made
Id connection with his decision in the
celebrated case of Choteau VS.. Cascade
county, thus placing the Judge IN false
position, after so long time very re-
luctantly and ungracefully endeavors to
drop the subject, and succeeds something
after the fashion of one who picked up a
hot potato and had to let 60, not because
he wanted but because he had to. The
Tribune in an extremely modest little
editorial note tries to get out Of it's re
diculous position as follows:
AS the press of the territory has had a
good deal to say regarding the decision IN
the case Of Choteau VS.. Cascade, it is but
Justice to Judge Bach to state that his
decision was not to the effect that the in
debtedness could be paid in bonds That
question was not decided at all but IN an
0biter dictum, during the discussion OF
the demurrer he gave it as his opinion
that the debt could not be so PAID. In
this opinion Of the judge-he made no de-
cison to that effect-some OF the Leading
ATTORNEYS of the territory do not agree and
the question will finally be determined IN
the supreme court. At the time the de-
cision was published nothing was known
here Of his obiter dictum and the infer
ences drawn by the Tribune were the
ones that would naturally be drawn.
The aboye is extremely rich
when we remember that the Tribune pub
lished in it's issue of May 18th the obiter
dicta of the Judge IN fuU, which occu-
pied tavo fuU columns of the Tribune,
and preceded the same with the flaming
headlines and felicitous remarks over the
sub-head Of ''the decision in small caps,
as follows:
CHoTEAU VS.. CASCADE.
DECISION OF JUDGE BACH IN FAVOR OF THE
DEFENDANT.
THE LAW CLEARLY sTATED-TWO WAYS OF
PAYING THE DEBT, BY WARRANTS AND
BY BoNDs-A BIG VICTORY FOR
CASCADE COUNTY.
County Attorney Taylor returned from
Lewistown last evening and brings the
good news of Cascade county triumph
ln the suit brought by Choteau county
against Cascade for $4,000, due provision
for the payment Of which, in accordance
with law, had already been made. The
case came up last Saturday on demurrer
to the complaint of Choteau county. Mr.
Taylor, county attorney for Cascade coun
ty, ably and fully argued the case for his
client, and s. Ell. McIntire, county attor-
ney for Choteau, represented the plaintiff
After an argument of two hours the court
took the matter under advisement, and
on the 14th, at noon, rendered his decision
orally, as follows.
The Judges decision occupied but ten
lines at the very close cf the many obiter
djctd uttered by him, (Which took up two
columns of it's valuable space and which
our esteemed contemporary thought was
the decision. We will here say for the
benefit of our esteemed contemporary that
we do not pretend to be versed in legal
lore, but we learn from our legal friends,
las well as in the appendix to Webster's
dictionary that an obiter dtctatm means
simply "a thing said by the way, or in
passing" and that learned judges often
precede their decisions with a remark or
remarks that do not enter into the de-
cision. The plural is obter dictd, which
means more than one or many remarks,
which may refer to but are not a part of
decision. The decision of Judge Bach was
as follows:
'sThe demurrer will be sustained, the
court will overrule the motion to strike out,
and will base it's decision upon this ground
alone. That before the motion to strike out
was filed a general demurres was filed
that being the case the filing of the general
demurrer was waiver of any right which
might be gained by the motion to strike
out. The demurrer will be sustained and
the motion to strike out will be denied"
This was decision in pactice and COW
cred none of the points at issue. 1t meant
that Choteau county had not brought the
case into court in proper form. Instead
of commencing an action against Cascade
county for the debt she should have asked
the court for a mandamus to issue COM
pelling the cascade county commissioners
to issue the $4,000 in per cent warrants
as the law provided.
A few days ago our esteemed contem-
porary in an article directed against the
RIVER PRESS claim of victory for Cho-
teau county says: "The Tribune does not
propose to discuss the legal phases of this
question. We are willing for the lawyers
to do that and for the courts to pass upon
the question" That all sounds very we'll,
but before our esteemed contemporary
discovered that it had to take aCater it
was more than anxious to discuss the le-
gal phases of the case, and insisted that
the law provided that Cascade could and
qcould pay Choteau county in bonds, and
do it laufully. When it published what
it thought was Judge Bach's decision it
followed exultingly with the following glo-
rious conclusions,in which t.has so humbly
acknowledged above, it was badly mistak
en-:
This decision goes beyond the legal