Omaha daily bee., 1905-12-10
GATHERS LATEST SUIT On
Attack on City Charter Comes Up in
District Court.
BREEN POINTS OUT ITS BID POINTS
City Attorney Denies Right of sixth
ward Politician to Do what
He Seeks in His
Action.
'REEN POINTS OUT ITS B'D POINTS

Judge Sears Saturday morning took up
the suit of John T. Gathers to enjoin
August IL. Hennings, as treasurer of
Omaha, from transferring to the custody of
Robert o. Fink as treasurer of the county
and city, the books. papers, records and
money in his custody, under the provisions
of the new city charter.
City Attorney Breen had filed demurrer
to the petition in which he took the ground
the petition was defective in these partic-
ulars.
First, plaintiff has no legal capacity to
sue: second, there is a defect as TO the
parties defendant; third, sufficient facts
are not set out to constitute a cause OF
action.
Mr.. Breen said that If the demurrer was
sustained that will, of course, dispose Of
the injI .tion and vacate the restraining
order. If it is not sustained the city would
want leave to file answer. Judge Sears
said this would be allowed.
GeneraIa Attack on Charter.
This petition" said the city attorney
lis a general attack the new city
charter; but this document called petition
is a very inartistic affair to say the least.
Street rumor has been busy since the en-
actment of the charter by the legislature
with the report that the charter is de-
fective. Yet ever since its enactment the
city has been operating under IL. More
than eight miles of pavement have been
laid or contracted for. More than Il quarter
million dollars in assessments nave been
levied against abutting property for pave
ments and other public Improvements.
Municipal bonds have been issued and OBJ
legations incurred. To hold the charter I'M
constitutional now would interfere with
vast public improvements, vitiate bonds
and do other things that would lead to
great confusion.
This is a very serious proposition. We
deny that any private citizen can do this
unless 1t is clearly shown that some con-
stitutionaI right Of his as TO property or
person is infringed. No mere fancied wrong
will suffice to enable him to do this. There
must be a substantial wrong shown. After
the charter has been in operation for so
long a time the state only can interfere, we
hold.
Mr. Gathers has no standing TO prevent
City Treasurer Hennings doing the things
Il is alleged he is about to do. Mr.. Hen
nings has given a bond and he can transfer
the books money and papers to any place
even his private residence. That is not
transportation or embezzlement
Only Hope of Ground.
The section of the petition which might
possibly give Mr.. Gathers a standing in
court is that which sets forth that the
mayor and council are about to expenc
city money for the premium on bond foi
M. Fink as city treasurer ex-oficio, prob
ably 1900 for a 100000 bond, as provided
for in the charter. Yet there is no allega
ton that MIR Hennings, the defendant il
this case, is to eXpend this money or thai
he approves or sanctions the expenditure
or that he would sign a warrant for any
such expenditure"
MIR. Breen called the courts attention L
the fact that the petition says that tn,
school district of Omaha is called "contigu
Gus" territory and INDUCED In some pleas
ant criticism Of this wording. Mr.. Gather
said that was the mistake of the type
writer, and Judge Sears said he would
take It for granted the petition meant [,
say "co-extensive" with the territory OF IN
city. Mr. Breen then contended that III,