Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1893-06-23

IL be a charitable trust or otherwise
but we deny and the counsel will find
great difficulty in satisfying the court
that there is anything even in the ma
ture of a charitable trust in this case.
As to the question of jurisdiction I
have only this to say, that when the
counsel representing the defendant
went before Judge Grosscup and asked
leave to file amendments to their ans
wer they did so in the exercise of their
legal rights. The other parties appeared
before Judge GroSScup and contested
our right to make an amendment in
the pleadlngS in the circuit court, not
for the reason that we would not have
the right to make amendments if this
appeal was not pending, but because
an appeal had been taken, and the case
should therefore be left in statu quo.
Acquire No Advantage.
l do not think that we have acquired
any advantage over the United States
government by the amendment which
, we have made in the circuit court.
l do not believe that the mere charge
IN the answer that if, as stated in the
opinion of the presiding judge of that
court, there was Il question of property
rights involved, the property was vested
in the government, that it is the owner
or proprietor in part, has a right of
possession, and also the right to make
enactmentS in the control and manage
ment OF that property, or that certain
construction given Il certain section Of
that act of congress that that section
was unconstitutional makes it so, or
amounts to a challenge of the iuriSdic
ton of the court.
The question is whether in the con-
sideration of this case, in the Judgment
that your Honors may finally reach,
it becomes necessary to consider Il con-
StitutiOnal question or the construction
of any act of congress, and whether
it is presented with the pleadings or
not it is for your Honors to decide
whether the question can be decided
without passing upon this constitutional
question. Now, as to the question of
jurisdiction, l challenge counsel to point
out where the constitutional question
has been raised in the record, by the
/ argument or by the assignment of
errors. l am not aware that any has
been raised, nor did the case in court
below turn at all upon the constitution
III question or the construction of any
act of congress. The decisions of the
i'll the court below, bear me out in this
and if the circuit judges in the opinions
they have given are right and they
are sustained by this court the injunc-
10
the law is constitutional or not, but be-
cause his Honor, Judge Woods, properly
reached the conclusion that Il temper
airy injunction should issue for the pro
lection of the property rights of the
government of the United States. His
Honor, Judge Jenkins. reached SINH.
lar conclusion by a different process of
reasoning In his opinion he dissented
from the opinion of Judge Woods, and
!. held that he had grave doubts whether
there was such possession of property
in the government Of the United States
as would authorize the interposition of
a court of chancery for its protection
by a bill of injunction, but finally
reached the conclusion that this appro-
priation of $2,5OO,OOO was a trust es-
tate, or charitable trust, and there was
an attempted diversion Of that trust
and that court of equity could enjoin
the trustee from a diversion of that
I trust from the original purpose for
which the donor had made the grant
Therefore he held that temporary in
junction should be granted. His Honor,
Judge GrOSscup, differed from both his
associates, and his opinion was that
there was no case made by the bill,
answer, or proof, that warranted or
authorized the intervention of a court
of equity for the relief demanded. /
am surprised that counsel should have
said that in the hearing Of this case
in the court below we challenged the
jurisdiction of the court. This aSSer-
ton was new to me. 1t was the first
time that I had learned that either my
self or my associate had challenged the
jurisdiction of the circuit court to en-
terrain the bill or dispose of the issues
presented. We challenged the right Of
the government to the relief demanded.
We claimed that in their bill they had
. shown no equity and that therefore we
Il
for want Of equity.
Question of Equity.
Mr.. Walker read the amendment
which was filed by counsel and admitted
by Judge Grosscup yesterday, and then
said:
4 We submit now that in the considera
ton of this case your Honors will un-
doubtedly reach the conclusion that
this temporary restraining order shall
be either confirmed or dissolved, not
on account Of the uncertainty of the
law, not on account Of any constitution
al question that is raised, but because
/ the record will either show equity or
no equity whatever on behalf of the
complainant, the government of the
, United States. The first recital in the
| bill of the government Is that the
| government is in possession Of and en-
titled to the control of the property
inclosed at Jackson park and Midway
Plaisance. Then there is the further
charge that when the dedication cere
monies were held in October last the
corpora ton turned over the possession
of this property to the representatives
of the governmental rights, control,
and jurisdiction Of the grounds, build.
1ngs, and property-and that therefore
we have no claims that we might other
wise. have made and sustained as to
the control and possession of that prop
erty. Then comes a recital of the
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