Omaha daily bee., 1885-10-08
A Clear Case.


with great interest the decision of the
supreme eourtin the case brought before
it to test The title of James l.. Mitchell
now acting as additional Judge in the
Second district, under appointment of
Gov, Dawes The Judiciary Of this state
is the creature OF the constitution, and
can only act in conformity Herewith.
Section II, of article sixth, the judicial
department provides:
The legislature, whenever two-thrds of the
members elected to each hou,1 shall concur
therein, may IN or after the year one thou
sand eight hundred and eighty, and not
oftcner than once in every four years, in-
crease the number of district Judges of the
district courts and the judicial districts of the
state.
In 1888, the legislature enacted Law
increasing the number OF district judges
to ten. Under the constitutional proyi-
sion above quoted, no further increas
in the number of judges could legally
take place until the year 1887, without
constitutional amendment. The act
passed by tho last legislature, and APP
proved in March, 1885, doubling the mum
ber of judges in the Second district, was
manifestly unconstitutional, That Gov
crnor Dawes approved this act shows
either gross oarelessneSs or criminal
ignorance.
Mr.. Mitchell's appointment by the gov
ernor, under this act, is even more un-
pardonablc. There might have becn
4 q. r.
business, for the governors approval
of u bill that received two-thirtls
vote but there was ample time
after the Legislature adjourned, for him
to have rcctificd his blundor by refusing
TO make an unconstitutional appoint
ment. There must haye been power
behind the throne to push Mr.. Mitchell's
appointment. The pressure from the
railroad managers seems to have over
come the executive conscience.
Mr.. Mitchell was fayoritc OF the
railroads. He had rendered them great
service before and would doubtless prove
as useful on the bench us he had been in
the legislature.
Six years ago when Church Howo was
chairman Of the senate committee Oh
railroads and Captain Mitchell chairman
of the committee of the house on The
same title, they together pigcon-holcd
Ill matter relating to the subject Un
til the closing days Of the session whoa
thcy submitted II report chat Nebraska
needed no legislation on railroads to
carry out the constitutions msndata
Three years ago, Mitchell was tho rail
road candidate from this district and
was warmly supported by John NJ. Thurs
ton, Fred Nye and the railroad deiega-
ton from Douglas county. lie was not
nominated because he did not have
the backing of his own county.
Of course, no one questions Captain
Mitchells fidelity, nor do we assaiI his
integrity on questions outside of corpora
ton interests Bat he would he m ul-
grateful man if he did not rccprucatc
the favors and support which he has re
ceived and upon which he depends foc
his future success. 1t is notorious thai
the influence of the Burlington road Sc
cured a Mitchell delegation from L;uoas-
ter county last month, andit is n trugsly
IN Justice when men who owe their en-.
tire existence, politically, to railroads
are permitted to deal out Justice between
The railroads and the people. Only Two
years ago the voters of the First district
administered a singing rebuke at the
polls, irrespective of party, to IL candt-
late nominated and supported for this
high Office by railroad attorneys and po-
litical managers.
We have commended Attorney
General Lcese on various occasions for
.nergy and fearlessncss-in the discharge
If his duty. In this instance, however,
,he attorney general does notappcar in a
,ommondable light. The same inlluen-
'es that procured the appointment of
Mitchell appear to be potential over him.
No other rational explanation can be
made of his refusal to hiring an action be-
ore the supreme court, when asked to do
10. He should have donc so without be-
.ng asked. Here was judge foistod
Upon the people in palpablc violation OF
he constitution, administering justice
with no earthly authority. The powers
,f a district Judge over life, liberty aud
property are extensive and only limited
1y the reviewing authority of the su-
oreme court Every judicial act of Mr.,
Mitchell is liable to legal exception, and
undoubtedly will be declared void ii our
constitution has any binding force.
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