The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-09-26
APPEALS ON
HIGH Law
Continued From Page one.

He was secured to make comparison
OF the bids and the plans and spool
fication Of the city engineer. All the
bids passed under his inspection.
In drawing the contract for this
filtration plant, the plans and speci-
flcations OF the city engineer were
used as the basis. Kennedy's plans
were there Anders' plans were there.
This contract was drawn under the
advice OF experienced men so that
there might not be any conflict In
case Of a conflict or confusion the
plans and specifications Of the city
engineer controlled and the contract
fixes whose specifications shall con-
troll. 1t further stipulated that nothing
could be done without the endorse
ment Of the city engineer"
Judge Young then devoted little
time to the discussion Of the changes
between the two plans and specifica-
tons.
This suit has been built largely up
ON imagination. 1t has been measured
some, apparently. with the feeling that
IL was Kennedy. No city council. but
Kennedy. In the face of these things
| they have come here in court and
would mislead the public and the court,
that Kennedy has done everything.
There are only two particulars In
which there has been any material
change in the work. The change of
the sluice valves was made after the
bids were in, and at reduction so
that the city might receive the benefit
OF the same.
nt -
The plans of the city engineer called
for one gutter and the plans of Mr..
Kennedy called for two cutters. The
judgment Of the experienced filtration
men who are associated with Kennedy
thought that two cutters would do bet
ter work than one gutter, and they
gave the city the benefit Of their judg-
ment. The city engineer is not expert
enced in filtration plants and had over
looked 1t.
THE second difference is in the
canals. There is a difference here be-
tween iron and concrete canals. The
city engineers plans called for three
concrete canals and the plans of Mr..
Kennedy called for two concrete canals
and one OF iron pipe. They are OF rhe
same number, perform the same func-
lions and does not offer to criticise the
| deviation.
Mr.. Brown and Mr.. Burdick saw
where saving could be made between
the hydraulic operated valves and the
ones operated by hand The city en-
gineer in his inexperience with filter
plant matters did not see this All
this change was made and done under
the advice and direction of two of
the best experts In the country.
THE mayor suggested that 1t might
be best to use the hand operated sluice
valves. The plant is not steam heat
| ed and in such cold temperatures as
we have had here there would be a
chance for the pipes to break. When
not in operation the water in the
pipes operating the valves would be
region.
The Higher Plea.
Independent OF all the plaintiff
claims in this case he cannot succeed.
Conceding to him everything brought
out In this suit that he claims, he
cannot succeed.
| His request is unconscable. II Is
ineQuitable. 1t is unjust This is not
a common law court. It is a court
! Of equity. Mr.. Price has brought his
case to the chancellor, to the keeper
Of the kings conscience where legal
rigts do not prevail, but where equity
and conscionableness reigns.
TT is so ineQuitabIe. Even though
his claims be true, it Is that he would
have TO go hence and fight his battles
in another arena. The courts will not
strike down the right OF the people to
satisfy the legal right OF a taxpayer.
/ They claim that only q statute has
been violated, which IL not vital"
Judge Young then proceeded to cite
some cases In the law. He first cited
the Mclean county. North Dakota.
case and later the Mckenzie county
case, drawing conclusions which he
| compared with the case before the
court. He also cited cases before the
courts Of Iowa.
The chancellor (meaning the bar Of
justice) looks the taxpayer squarely in
the eye and says: Who are you? How
viii you be hurt? And this Is court
OF equity. He must come into the
court with clean hands. I would take
that to exclude an unsuccessful bidder.
I
this city shall be refused this water7
i 1t would seem that mere statement
of the conditions would be sufficient to
answer that question. The chancellor
can compare his own human experience
n and judgment In answering the cues
ton.
mfr. Price says to the people: You
shall not have this water. Is it equit-
able? Perhaps so, but is 1t just7 It is
not within my comprehension that
there lives man who will say but
what this Is considerable"
Judge Young then drew a picture OF
Henry Wirz. the famous keeper of the
Andersonville prison in the civil war
He told how Wirz furnished the Union
soldiers with filthy water and drew q
dead line between the prison and the
stream in the prison yard which held
pure water. but which the prisoners
were not allowed to drink.
He followed this with the story OF
how the Daughters OF the Confederacy
had attempted to locate a statue OF
Wirx, but In spite Of the loyalty Of the
southern people none Of the large cities
would allow his form to grace their
streets. THAT mans crime was to re-
fuse people water" rang out the bar
rister's voice. He then drew a slight
comparison to the local situation
meaning Mr.. Price as possible Wirs
of today.
This court thanks God that It has D
conscience. Let DR.. Price have every.
thing. All that Is asked is that thu