Omaha daily bee., 1895-03-13
BARRETT SCOTT BILL VETOED
Measure Intended to Permit the Prosecution
to Take Change of Venue.
GOVERNOR SAYS IT'S UNCONSTITUTIONAL
Points Out the Interference of the Legisla-
tive with the judicial Branch of Cow
ernmcnt and Shows How the Bill
of Rights is Contravened.

case against the alleged murderers of Barrett
Scott. and this morning sent to the senate a
message in which he gives at length his rea
sons for vetoing the bill The measure, which
was crowded through both houses under the
whip and spur OF party expediency, is known
as senate file No. 259. 1t provides that when
ever in any criminal trial in any county Of
the state the attorney general shall file an
affidavit to the effect that the state cannot
have fair and impartial trial in the county
where the offense is alleged to have been com
mitted, because Of the bias and prejudice of
the inhabitants of the county, the trial Judge
shall proceed no further. but shall forthwith
enter an order in the case naming and
designating another county within the judicial
district, wherein such case shall be. prosecuted
and the accused tried in all respects as if in
dieted or informed against in the county so
designated.
1t is probable that the twenty-five repub-
lican members of the senate or at least a
two-thirds majority, will pass the bill over
the governors veto. McKesson of Lancaster
moved to that effect this morning, and the
matter was set as special order for II
o'clock tomorrow forenoon
Governor Holcomb bases his objections to
the law solely upon legal and constitutional
GROUNDS. After reviewing briefly the purport
OF the Dill as 1t passed the legislature, he con-
| tinues
&C. our constitution has wisely provided that
the powers OF government of this state are
divided into three distinct departments, the
legislative, executive and judicial, and no
person or collection of persons, being one of
these departments, shall exercise any power
properly belonging to either of the others,
| except as expressly directed or permitted.
ATTORNEY GENERALS FUNCTIONS.
By the provisions of this bill it is made
mandatory on the trial judge to order a
GGadanse Gdafsst or or venue venue upon the filing of an af
| Toned IN the act, Notwithstanding he may
oe satisfied that fair and impartial trial
county where the offense was committed
ane attorney general is not by law save in
made the prosecutor of criminal cases tried
IN IN the district courts of the state. His loca-
tion TOR prey prevents him from being familiar with
or prejudice of the citizens of the various
counties Of the state. His residence and
Instantly removed from many of the coun-
ties of the state. He necessarily must de-
order to arrive at any conclusions. These
representations may or may not be reliable,
or less interested. However sincere might
be his desire to exercise this right of a
change of venue only where the public in
terest demanded, the attorney general might
often thus be misled, and it would be piac-
Ing upon an executive officer burden and a
to the spirit Of our constitution belongs to
the judiciary. The attorney is purely an
and over the. objections Of defendant, the
place of trial may be removed to a county
fense. The trial Judge. i aIhough al @ aeef eoByineed @
that a fair and impartial trial may be hao
IN the county in which the offense was com
case.
Can 1t be said that a fair and impartial
his objections, is compelled to try his case
in some county remote from his home and
Is the trial Judge who sits in the case tc
hold the scales of Justice evenly balanced
truth and right by ordering a Change Of
venue without az an M Minvestigatiohn h and judicia
udice of the citizens of the county where
the offenSe was committed?
, 1t seems to me these questions should be
answered In the negative.
BILL IS UNCONSTITUTIONAL
3 The act in question, is also subject to
. graver objection, and, to me, an insur
e with section H. article 1, entitled "Bili Of
, Rights" of the constitution. which pro
,, , accused shall have the right to appear ant
defend in person or by counsel to demand
the nature & and = cause OF acc accusation . n, and tc
: against him face to face, to have process.
to compel the attendance of witnesses in hi:
which j, hs Is ofense is alleged to have beer
This is the supreme fundamental law O
land It has b been dgted az and ratet
] court of the United States has aptly said
ecused public whn he County
district In which S tihost the offense was com
l prevents the possibility of sending a de
distance from friends. amorg strangers, and
a personal or partisan character"
r II is, perhaps, claimed by the advocates
tic ton n Quoted % or dstrict M is sStt meant to- to fix
S limit, of territory, larger thalf9 that of {
such pconStPaction. DTn in my % Judgment i i
$ not warranted by the language used, and
happily for the of determhins th
the state has upon three different occasions
4 in the decisions of that body construed th
= | section of the constitution, and there Is nov
: left 10 room for doubt.
d In an early decision the supreme court o
n this state in constituting this section Of th
"of the words employed, district is th
0as % be- to IN the the m md % q Whc
> shadow, Of a doubt, but this, like the, wor'
t restrictive it sens, @ to limit and c control nitro tn
n exercise of both legislative and julicia
power in the punishment of criminal offend
| ers. In its ordinary meaning the word dis
trict Is commonly and properly used t
l. vded for political or other purposes, an,
>, may refer either to a congressional, judi
4; road district. depending always upon tn
connection With which i + used In tn
|
/ OF these, and although not synonymou
e with the word county yet, by its connec
ton with it; the intention evidently wa
!, :! sense, and as designating the precise por
. tion OF territory or division of the state owe
which a court. at any particular sitting
IS may exercise power in criminal matters
Z, And such division. by whatsoever name
1. may be known in legislation. Is co-eXtenslv
n with and practically limited by this consti
" tutional provision 10 that from which jury
for the particular term, may legally b
a drawn. And this Is in entire accord witt
Z our constitutional system Of district courts
by which one Is designed for each organ
Is ized county having criminal jurisdiction co
o. extensive herewith and assisted by juror
- drawn in the manner now provided by Lax
II from the whole body of the people thereof
DECISION ADHERED To.
g This construction of the section quoted ha
IL been reiterated and adhered to by the su
n preme court of this state, the last decisio
le thereon being late the year 1894.
is douhtless true, as decided by the suprem
II court of the United States in constituting
y, constitutional provision of another state
y somewhat similar to the one in question
that such an act the one under consider
alton would not be unconstitutional wher
n change of venue made within the dis
p trict composed of two or more counties,
- appearing that jurors for the trial of Grim
inal offenses committed in one Cf the cour
/ ties of the several attached together fo
Df judicial purposes are chosen from all tn
m counties: and. such, l understand, by legls
20 lation, might be made the law in this stat'
- But where the county Is settled. organzeC
nd holt tn, I,.i,,