The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-04-09
AANDANUS GOES OUT
Judge Burford Sustains the
Territory on This Point,
VETO UNDER AMUSEMENT
Council Bill No. 2" Is
LearnedIy Agreed.

Guthrie, o. T, April s.-(Special)-
Judge Burford, in chambers, this morn
ing listened to are arguments of coun-
sci relating to the legality of the passage
of the noted Council Bill No. 2" other
wise the Clarke bill, over the governors
veto; and, if legally passed TO what ex-
tent would its provisions affect the aud
itor in drawing warrants against funds
for which there is no direct appropria-
ton. On the latter proposition Judge
Burford practically sustained the demur-
rer OF the attorney general and the mo-
ton TO quash the alternative writ of man.
damus, announcing, however, that he
would take further time for considera-
ton of the passage of the bill over the
governors veto. Argument on the writ
10 compel the auditor to issue warrants on
the accounts of the codifying committee
was postponed, Judge Burford intimating
that he would want to hear from counsel
as to the availability of the congressional
appropriation to meet the expenses not
only Of the codifying committee, but also
TO pay for the printing of the session laws
and journals.
The argument this morning was on the
writ to compel the auditor to audit and
allow the accounts of H c. Beamer for
the care of the deaf and dumb. The aud
itor, by the attorney general, demurred to
the writ and submitted a motion to quash
for the two principal reasons that the
court ought not to require the auditor to
perform the matters and things command
ed in the writ because it would require
the auditor to disobey and violate the laws
Of the territory, and incur heavy penal
ties and forfeiture of office upon his part;
secondly, that there is no fund upon which
to draw the orders against the public
trp s11r &c ri a cd nv
cause the Fifth legislative assembly made
no appropriation available for the pur-
poses for which the plaintiff claims the
warrant should be drawn.
The argument of Judge Frank Dale,
who appeared for the plaintiff, was first
directed to the validity of the bill, and he
read from certified Transcripts of the leg
islative journals to show that second
vote was necessary in the council to pass
the bill over the governors Veto and that
in the house a second roll call to pass the
bill over the veto received but sixteen
votes in the affirmative. He contended
that the rules of congress applied to the
territory the same as the organic act and
read from JeffersOns Digest, which says:
"A vote On a vetoed bill cannot be recon-
sidered." He also insisted that neither
vote in the lower house showed the re-
quired two-thirds majority. Interrupting
Judge Dale's argument to the effect that
the tax levy authorized by the legislature
was in itself an appropriation, Judge Bur-
ford inquired: How can the auditor an
ticipate the levy, assessment and collec-
ton of q tax? How can he know that
there would be a specific sum paid into
the treasury? And would it be necessary
for him to pause and make a computation
every time he was called upon to issue a
warrant?
Judge Dale practically admitted in his
reply that if the levy were not held to
be a specific levy and the bill was the
law Of the territory it would have the
effect of closing the educational institu-
tons of the territory.
The attorney general, in his argument,
maintained that the legislature had clear
~ in mind the making of specific appro-
priations, and to prevent the issuing of
warrants which even the supreme court
had declared necessary to issue. The lam
guage of section one was clearly intended
to correct the wrong, if wrong it was,
and the history of the legislature sustain
ed this assumption. He maintained that
if the law were in force the logical eff
feet would be to prohibit the drawing
of warrants until there is a fund in the
treasury; but the auditor cannot deter
mine what amount of taxes would be coll
lected and if he should inadvertently make
a mistake in computation the warrant
would be worthless and hte auditor would
be liable TO a fine and the forfeiture of his
office.
As to the question brought out in the
argument as TO the validity of the law.
the territory had not touched upon that
feature in its demurrer. but he was willing
to submit the case on an agreed statement
of facts