Omaha daily bee., 1883-01-26
The Proposed Board OF Railroad
commissioners Killed in
Its Youth.
The Supreme Court Unapi-
mously Sit Down on the
Favorite + chene.
the FIR htbit, ry Pravisions Cf the
state Contribution
Pointed Out.
TgE RAILROAD COMMISSION


BRAsKA.
t. tho H1norl' IL he House OF ReI rCsentati,es OF
N.brska
We have tho honor to acknowledge
the receipt of a copy Of o resolution
adopted by your honorable body on
the 22i day the present month, where.
by the judges of the supreme court
J were requested to answer the impor-
tant questions hereinafter stated.
While We chcerfully comply with that
requcs. we desire in the first place to
say that courts oil judicial officers, In
this state at least, are but seldom
called upon to decide or pass an opin-
ion upon important legal or constitu'
tional questions without first having
tho benefit of argument by cou sci,
who, stimulated by considerations of
professional pride and the pecuniary
interests Ct their clients, have usually
exhausted tho libraries of learning in
search for reasons and precedents to
sustain their respective sides of
the question and the theories
upon which they may BIO
sustained. And evon then it not un
frequently happens that u conclusion
reached under these favorable oircum.
stances may be reversed or materially
modifi ID sf;er being brought to the
test of experience Rad that free and
enlightened discussion which the
opinions of judges as we'll as the acts
of legislatures must undergo in this
age and country. We therefore enter
with dihiierce upon tho examination
of these important questions, which,
30 far ss we know, arc now presented
for the frat time under our constitu-
ton and In which examination we are
without tho aid of argument or dis.
custom.
Taking up the questions In tho or
der in when they are presented by the
resolution, the first ia as follows.
First-"Would railway commissioner
be state executive officers II created by thu
leeislaturt?'
As railway commissioners are a
present unknown to the consti
tuition ard laws of this state
we take 1t for granted that thu
hou, e In the wording of tho resolu
ton had ref renee to those eff ,erI
Us known to the laws of somo of oul
sister statea. In looking into tn
statutes of the state of Iowa for in
stance. we tind a law making 1t tn,
, duty Of the governor, by and with tn,
advice and consent of the executive
council, to appoint three competen
/ persons Como Of whom shall be q o,vi
engineer) who shall constitute q boa-t
of railroad commissioners, &C., &c
The act In its several sections provideI
salaries for the commissioners to b
paid out of the state treasury, thai
they shall hold their Offices a. the
state capital, and in many provls iont
make their duties co-extensive with
the limits of the state. There can bt
no doubt then that were a comm mis-
sion Of this general character
of the legislature of this state and
such act contained tho same or similar
provisions rs those contained in the
act Of the Iowa legislature referred tc
such commissioners would be state
oti ,ers. Whether they would be state
executive ofi,ers within the meaning
of our constitution must be deter
mined by an examination of the pro
, visions OF that instrument. The frs
clause of article 2 of the constitution
is in the following language:
, The powers of the government of thi
, state are divided into three distinct de
partments the legislature, executive ant
judicial"
Articles three and four are devoted
, to the Legislative department, invest
. ing Its authority in a ser ate and hous'
of representatives among the severa
counties of the state, 81, &c.
Article five is devoted to the execu
tive department; and provides that
"shall consist of a governor, s~eoretar.
t of state, auditor Of public accounts
8 treasurer, superintendent CT public in
8 struction, attorney general, commits
t sioncr Of public lands and buildings,
t &c.
Article ok is devoted to the judicia
department.
The powers of the state povornmen
7 being thus by the fundamental Ia
divided iuto these three distinct de
partments, it is clearly incompetcn
Q for the legislature to create a com
t mission and invest it with any tticla
0 power without assigning the dutie
thereof to one or the other Of them
The powers and duties of railroa'
t commissioners rs defined by the statut
of Iowa above referred to are In
"a ~ Witt. L. l.