THE NATIONAL NURSERYMAN 
265 
so that there could no harm come to it by the day’s delay. Immediately 
upon receipt of your telegram we phoned our inspector to inspect 
the goods. Regretting any annoyance caused, I remain, 
Yours very truly, 
M. L. Dean, 
State Horticulturist. 
Mr. Welch informed me promptly that his $25 had been 
refunded and enclosed letter from Mr. Dean, and I took it 
for granted that there would be no further attempt made 
to collect a license fee from the nurserymen. 
January loth Mr. Dean wrote our attorney a letter, 
which I will read, showing plainly that there was no need 
of going to the expense of carrying the matter into the 
Supreme Court. 
Upon receipt of this letter I immediately notified the 
Trade papers and also sent circulars covering a great many 
states to notify the proper parties not to pay license. We 
felt as though we had accomplished a great deal in securing 
this desicion, but later on, when the State Horticultural 
Society met, they urged Mr. Dean, State Horticulturist, 
to collect the license, thereby annulling everything that 
the Attorney General in his opinion, had rendered in our 
favor. The matter was then again taken up by our at¬ 
torney endeavoring to get it into the courts, but as yet 
we have been unsuccessful as they refuse to join us in a suit 
and as long as the nurserymen will license and there is noth¬ 
ing held up we cannot get into court. 
I received a letter from our Attorney dated March ist, 
igi2, and also other letters which I will read, showing that 
the Board had decided that the matter must be handled in 
the ordinary way through the courts and would not be tried 
upon an agreed statement of facts. 
As we were unable to get into court through any ordinary 
process of law, Youngers & Co., made a proposition through 
our attorney, offering to ship 500 trees to anyone in the 
state of Montana and prepay freight on same the com¬ 
missioner would agree to hold up the shipment. We were 
willing to do this in order to get a test case, but they would 
not agree to hold up the shipment so that we could get the 
matter into court. 
On May 4th I received another letter from our Attorney 
in which he stated that Mr. Dean had advised him that the 
State Board had directed him not to aid in any way in getting 
a case into the Montana courts. This was in reply to our 
proposition to send 500 trees to anyone who would assist us 
in getting into court. And this is the condition that we 
are now. in in the state of Montana. 
In my judgment the only way is for this Association to 
refuse to pay license. This could be done in the fall, as 
there are very few shipments made into the state of Montana 
in the fall, and I do not believe there would be a single ship¬ 
ment held up as they do not want to get into court, but 
simply want the $25 from each nursery. 
On January 23d we wrote to W. M. Johnston, our attorney 
at Billings, Mont., in reference to the Wyoming law, enclos¬ 
ing a letter written by Avon Nelson, Secretary State Board 
of Horticulture of Wyoming, demanding payment of license 
by the Mt. Arbor Nurseries of Shenandoah, la. which had 
been referred to me by Mr. Welch. 
On Jan. 25th I received reply from Mr. Johnston as fol¬ 
lows: 
“Your favor of the 23d inst, enclosing a letter of Avon Nelson, 
secretary Wyoming State Board of Horticulture, received. I think 
this letter is sufficient grounds upon which to base our actions.” 
According to previous arrangements with Mr. Johnston, 
that in the event we won out in the Montana case, he would 
carry a case through in Wyoming, I advised him that if in 
his judgment he had a case to go ahead with same, and on 
Feb. 15th I received a copy of the petition which he had 
forwarded to the clerk of the court at Laramie, Wyo., for 
filing. He also wrote as follows: 
“The Attorney General has refused to join me in an agreed statement 
of the case. He says this would be usurping the duties of the cour.ty 
and prosecuting attorneys. I infer from this that he will co-operate 
with Mr. Nelson in making me all the trouble possible so as to prevent a 
hearing on this matter on the merits as long as possible. Rvidentb 
they will harass and annoy us in every way possible so as to make the 
foreign nurserymen pay the license each year, even though unconstitu¬ 
tional, in order to stand in with the inspectors of the state. That seems 
to be the plan as now outlined.” 
On April 22d I received the following letter from our 
Attorney W. M. Johnston. 
“Your favor of the 20th received. It is difficult to say when I will 
have a final decision in the Wjmming case. My own judgment is that 
it will make no difference how that case is determined so far as the 
Montana license law is concerned. It will be enforced here until our 
Supreme Court decides it is unconstitutional. The same thing, I 
believe, applies to Wyoming. I base these statements upon the 
information I have from the vState Horticulturists of each state. I feel 
sure that they are both satisfied that the law is illegal but they arc going 
to enforce it as long as possible.” 
This is the condition at the present time of the Wyoming 
case that we have now filed, and have commenced action 
in the name of E. S. Welch, who kindly permitted us to use 
his name in this case. 
In the case of Mr. W. C. Reed of Vincennes, Ind., in 
regard to the Colorado law, will say that the action brought 
by Mr. Reed for damages sustained by the burning of 
stock unlawfully, has been taken up and we were informed 
that the trial would take place in January last. Mr. Reed 
had made arrangements with witnesses to be present at that 
time, but the case was postponed until May, and when the 
proper time came to go to Denver to try the case, he was 
again notified that it had been postponed, and the date now 
proposed is some time early in September. 
After considerable correspondence it was decided that 
this case should be tried on the broadest possible lines in 
order, if possible, to test the constitutionality of the law as 
well as a damage suit. 
In order to bring this case ,and assist Mr. Reed in every 
way possible, as we realized that the burden would be too 
heavy for any one individual, the Western Association at 
Kansas City, voted to expend $250 of the Association’s 
funds on this test case. Individual firms and members 
present added $650 to this sum. 
We were in hopes that this case might have been decided 
before this time and that we would have some ruling on the 
constitutionality of the law, but as yet we have heen unable 
to have a trial, but we hope that we will do so in vSeptember 
next. 
Do Not Pay License in Montana 
Geneva, Neb., Jan. 12, 1912. 
Should any attempt be made to collect license in Montana, wire 
W. M. Johnson, Atty., Billings, Mont., and also notify me and we will 
take the matter up at once. Mr. Johnson will now turn his attention 
to the Wyoming law, and we hope to get good results from that state. 
If any demand is made in Wyoming for license advise me at once and 
if any nurseryman has paid license lately advise me promptly and give 
date so that we can get action promptly. 
Respectfully yours, 
Peter Youngers, 
Chairman. 
Helena, January 3, 1912. 
Hon. Chas. A. Taylor, 
County Attorney, 
Billings, Mont. 
Dear Sir: 
I acknowledge receipt of your letter of the 28th ult., relating to case 
proposed to be instituted by Mr. Johnson of that city to test the consti¬ 
tutionality of the law requiring persons, firms, or corporations engaged 
in the business of selling nursery stock in this State to procure a license. 
When Mr. Johnson was in the city a few days ago this question was 
discussed and it was then thought advisable to have such action insti¬ 
tuted in case the State Board of Horticulture demanded the payment 
of this license nurseries of situated without the State. You are aware 
of the doubt existing relative to the constitutionality of this part of the 
statute. However, since the interview had with Mr. Johnson, Mr. 
M. L. Dean, State Horticulturist, has called at the office and after 
