Omaha daily bee., 1889-01-29
AN OPINION OF AN OPINION,
A Member or the Bar Crlticises
Judge Lakes Opinion.
JEFFERSON SQUARE WON'T DO.
The Real Value of Legal opinion
Some Fatal Dcfccts-A Little
Municipal History Not
Quite Forgotten.
Will II Re Legal?


OMAHA, Jan. 2S.-To the Editor OF
THE BEE: The advocates for the loca-
tion of the city hall on jefferson square
have raised n point, in securing an
opinion from Judge Lake upon the
question whether said square can ever
be used for the purpose of erecting
thereon city hall or other public
buildings. which seems to me to be fatal
to their scheme.
The Judge puts forth, for Q fee, his
legal opinion that the city hall cannot
be located on that square If there has
been dedication of it to the public for
the purposes of park or an open,
unencumbcrcd square. This is
undoubtedly the law, and the
courts will prevent any infringe
ment or diversion of the dedica-
tion and will sustain it in its letter aud
spirit. Authorities are inuumerable
upon this point. Having laid down the
laws the judge procee ds to argue the
square out from under his law by deny
ing the existence of the facts, which
are necessary to make a dedication.
OF course after having eliminated the
facts adverse to the conclusion he would
reach, in order to crafty Mr.. Swift and
others, the highway to the end of his
legal journey is made smooth and he
drives over it at two-thirty gate, leav-
ing cloud of dust behind.
The conclusiveness, the real value of
any legal opinion, not emanating from
u court consists in a full consideration
Of every fact, which can enter into
and make n part of it. To assume
and consider few facts and reach a
legal deduction therefrom upon any
given question, settles nothing except
their bearing upon the question into
which they enter, leaving the real point,
if affected by other and Independent
facts, still undecided. No one questions
the correctness of the adjudlcated cases
cited by Judge Lake in his opinion.
Their logical and legal force is derived
from deliberation upon every fact es-
tablished in the case. The omission or
the Introduction of any one other fact
in these cases might have changed the
current of thought of the courts render
ing the decisions and produced differ
ent adjudication OF the cases. Courts do
not throw away nor create facts in
cases they determine. They consider
just what each case discloses in
its record; while an attorney giving his
opinion of the law upon any point of
dispute is bound to rush out and take IN
every fact which can possibly be
brought into the dispute.
| presume certain facts were laid be-
tore Judge Lake and upon these he
formulated his opinion. Without as
senting to his final conclusion on the
relevancy of facts, he considers, in his
written opinion and how they support
it, | do insist that no lawyer can give
an accurate opinion-one which will
stand the test of judicial examination
unless he has embraced in his work
every fact which might enter into the
Therefore clause.
Judge Lake has not enumerated, and
l conclude, did not consider, in making
up his opinion, all the facts relating to
the dedication of Jefferson square to the
public as a public square," and rs "a
park" if | am correct in my remem-
brance of that which took place long
ago, and when, ii am not at fault, the
Judge himself was city attorney, say
from 1868 to 1865.
At the time the city council. acting
in its highest capacity as q Legislative
body, did, with the approval of the
mayor, by ordinance, dedicate this
square to the public for "a public
square and park" forever. From that
day to this the public have possessed |
and enjoyed 1t as such, and |
the citizens of Omaha, with |
remarkable pertinacity to |
the rights thus given them, have thus |
far resisted every attempted encroach |
ment upon the privileges and benefits
arising out of such grant or dedication. |
do not believe the masses of our peo-
pie will ever rehnquish their interests
in this park. Its enjoyment is open to