Omaha daily bee., 1902-05-23
APPEALS THE PORTER CASE
State Files It's Brief in Suit TO Recover
Marks and Brands Fees
DECISION MAY LET OTHER ROADS OUT
II They Avail Themselves Of the Late
Supreme Court Ruling h Last
of Gases started by smyth
~ VIII he Ended.
nrnm a stan corresnondsntN

From a stan C-orrespondent)
: LINCOLN, May 22.-tSpecial.6The al
legged retention Of state funds by former
Becretary Of State Porter is again brought
20 the attention OF the public by the filing
today Of an extensive brief and argument
tn the supreme court. The showing is
made in the case wherein the state is seek
ing to recover from Porter or his ~sureties
approximately $500 paid into his once as
fees for the registration OF cattle brands,
but never accounted for. Porter admits
that he appropriated the money to his own
use, but puts forth a plea somewhat sim
N1lar to that urged in the Meserve case. In
the district court Judge Frost decided that
he had no right to take the money, but
that. having taken 1t. he could not be COM
PEELED to pay II back to the state.
TIL law under which Porter was acting
yss a member of the Brand and Marks com
EMISSION provided that each registration fee
Ct s1.b0 be divided into I'VE equal parts,
the three members and the secretary Of
state each to get one part and the remain
ing hfth to be for expenses OF the commits
sion.
Under this law Porter collected s4.s1e.
Out Of the sum he paid TO each of the three
members 20 per cent, 1926. so, $2,77l40 TO
all, and retained $92S. 80 in addition to his
AnHuhA hdiaTgt WhlGn ID lllnlNtu ny lu6 COM
stitution to 1000. The incidental expense
fund under the statue was likewise 20 per
cent of the entire amount collected, or
fs23.S0. Out Of the latter he paid met
dental expenses to the extent of 1925. 70.
There remained, therefore, in the incidental
expense fund s595.05. This latter sum Por-
ter paid to s. E.. Starrett in addition TO n
monthly salary Of 500. drawn from the
state treasury under a Legislative appro-
priation for his services as a clerk in the
once OF the secretary Of state. These
facts. Porter's election and qualification
and his Official bond. are fully and formally
set forth In the petition and admitted by a
Joint demurrer OF all defendants.
The state sued Porter for 1886 5 paid to
starrett and for s923.sO retained by Porter,
the two items amounting TO Sl,5ls.s5.
May Eject other Railroad Cases.
The action of the supreme court in dis
missing the case of the State against The
Missouri Pacific Railroad may be later held
TO apply similarly to the states cases
against the Union Pacific and the Rock
Island railroads. These three actions were
begun by the popocratic t~rust-smashing at
torney general to recover magnificent sum:
: from the railroads because OF violations Of
the maximum freight rate law, notwith-
standing this law had in effect been held
unconstitutional by the United States su.
preme court because It constituted a re
straint OF trade and trAfic. In dismissing
the Missouri Pacific case the supreme court
declared that the action was in the nature
Of a criminal proceeding and therefore
could not be started in the supreme court
in original Jurisdiction. The cases against
the Union Pacific and the Rock Island were
based on the same ground, but thus far the
same question Of Jurisdiction has not beer
raised in either OF them.
The Union Pacific case Is now in the
hands Of referees appointed about a year
ago and the Rock Island case has taken
an offshoot into the federal court, but u
The same question is now raised in both
OF them and the decision In the Missouri
Pacific case is adhered to the result will
be the dismissal of both of them.
With these two cases on the docket al
Of the antitrust and anti-railroad litiga-
tion instituted by the fusion attorney gen.
eral will have gone glimmering.
In dismissing the Missouri Pacific cas-,
the court does not pass upon its merits, bu
says simply that as 1t is a criminal pro
ceeding 1t can have no place as an origina
action in the supreme court.
Contract Held 10 BE Valid.
In an opinion delivered by the suprem
SQUIRT, a contract between a husband an
his wife, made in Cunning county. was he'll
void on the ground that It was contrar
to public policy. Milk Brun, ST.. a farmer
owning considerable personal property, be
came enamopred Of a widow who owned
iarm which was about to be sold unde
mortgage foreclosure. and he proposed tina
Hhey marry. As a part OF the agreemen
be offered to buy In the farm at the fore
eloanra oala advfaiun hor N rnaEa M raD
test. She acted upon this suggestion. Nj
Brun purchased the farm and the marriag
was duly ~solemniEed. In th
sourse of time the woman's children. amon
whom were two boys, conceived the ide
nat the farm purchased by their stepfaths
WAS still a possession OF their mother an
themselves. The mother was induced I
take a similar view and matrimonial haT
piness was soon at an end. Divorce pro
ceedings were hnally Instituted by the wifi
In which she asked that the farm. althoue
lts legal title was held by her husband, I
declared equitably TO be hers, Pending II
4uvorce suit a contract between the two W;
Rade. II provided on the part OF the wi
that she withdraw the suit for divorce, ar
on the part OF the husband that he transit
the farm back TO his wife. and tina the tv
continue their relations as husband ar
wife. A year or so later. when the Il
assessor visited the homestead Mrs. BrV
Enormously insisted upon having both Il
e~ersonal property and real estate assess,
In her name. An attempt on the part
crun to convince his wife that he ST
owned the personal property preeipitat'
physical encounter with a stepson,
which Brun was worsted and driven fro
the farm. Later Brun instituted proceei
lngs for divorce, and asked TO have the 1T