Omaha daily bee., 1895-08-11

the supreme court OF this state or in the dis
trict court.
Therefore, plaintiffs ask that the defendants.
William ]. Broatch. Paul Vandervoort and
Albert c. Foster, and each and every one OF
them be temporarily restrained and enjoned
from in any way interfering with the per
formance by the said plaintiffs OF their duties
as members OF said Board Of Fire and Police
Commissioners or from attempting TO take
possession Of the offices, records or other
property belonging 10 or pertaining to said
board or from themselves undertaking or
assuming to perform any OF the duties
functions pertaining TO said board until the
question OF the right to said offices shall be
adjudicated and determined by court OF
competent Jurisdiction and In a proper pro-
ceeding, and that the plaintiffs may have
such other and further relief as equity and
the nature of the case may require.
1t is we'll settled that title to office cannot
be tried by injunction. Counsel agree that
such is the case. The court. therefore. will
not undertake to say in this proceeding
whether the statute relating to the appoint
ment Of fire and police commissioners, as
amended by the last legislature, Is or is not
unconstitutional nor whether the appointment
Of the new board has been made in com
pliance with its provisions Those questions
can be considered only In proper proceed
ing In quo warranto, where the rights of the
respective claimants can be fully inquired
into and determined.
REDUCED TO ONE QUESTION.
The question here s Will the court by in
junction protect the old board in possession
until the rights Of parties have been settled
by the courts?
The contention Of plaintiffs Is that in hold
ing over after the 1st Of August, when the
new law by its terms went into effect, and
continuing to exercise the functions of Office
they are acting in good faith, and they In
sst that the questions affecting the constitu-
tionality Of the act OF 1895, which have been
argued to the court, are Of grave
ture that the court. while it cannot decide
those questions here, must say their con-
tention Is bona fde and hold that they are
officers de facto and protect them in their
possession and oblige the defendants to bring
quo warranto proceedings.
The defendants on the other hand insist
that the law under which they were ap-
pointed is now in force, that they have quail
fed and are ready to assume the duties of
office, and entitled to possession, and that
the old board, If 1t questions their title, must
bring action to oust them. The plaintiffs
have produced authorities in support Of their
contention.
(The Judge then quoted decisions in a num-
Der Of cases in support of the proposition that
the contention Of the plaintiffs In the case at
bar was not well founded and could not be
vlndicaed by legal precedent)
In the light of these decisions, the de-
PENDANTS appointed fire and police COM
missioners under the law Of 1895, now In
force, must be held to have the apparent
right and to be entitled prima facle to the
offices in question. Such being the case.
court Of equity Will not restrain them from
claiming such offices or from proceeding IN
peaceable and lawful manner to obtain
possession thereof.
1t has been suggested in argument that II
the injunction prayed for is not granted there
is danger OF a conflict between the contendny
parties, to the detriment of peace and good
order. There is no allegation in the petition
that the defendants will force and vio-
lence or other than lawful means to gain
possession and the court will not assume that
1t will be done. On the contrary, have too
much confidence in the people of Omaha to
believe that such a contest vi ct armis will
occur. Should anything of the kind happen
the responsibility will be with those who in
cite or preclptate 1t, and / take occasion to
say here that Notwithstanding the views
herein expressed as to the right of defend
ants to the possession and occupancy of the
offices in question; yet the plaintiffs have the
right to remain peaceably in possession and
to exercise the functions Of said offices until
otherwise ordered in proper legal proceed
ing
RANSOMS CONDUCT CENSURED.
1t has been urged that nasmuch as the
oaths of office and the official bonds of the
defendants were filed and approved by the
city council after the restraining order of
the court had been issued the defendants
ought not to be put in a better position
before the court by reason of such action
than they would be in had the council OBJ
seTNeu the restraining Oruer. Ine cOnten-
tion is undoubtedly correct. A court OF
equity will not permit a benefit to
accure to any one by reason of the viola
tion OF its orders. In this case, inasmuch as
the injunction asked against the city council
must, upon hearing have been
denied, the action Of the council
in approving the bonds was with
out injury to any one. 1t will be difficult
however, for those members of the city
council who violated the courts order to
Justify the act that of law-abiding citizens,
and the action of those attorneys Of this
court who advised and abetted such action
Is without excuse, and especially is the con-
duct Of the acting assistant city attorney
in advising the council as he did, deserving
OF the severest censure. Even If he had
doubts as to the binding force of the order
1t was the grossest discourtssy to the court
to disobey its order requesting a delay of a
few hours by the council, until the court
could inquire into the matter and determine
whether or not the INDUCTION should be
granted.
II officers of the court, and the city
officials, charged with the government OF a
great city, wantOnly set at defiance judicial
orders, what may we expect the effect to be
on the people generally? viii it not be In
a measure to detract from the standing OF
the courts, and to encourage a spirit of
lawlessness?
The injunction prayed for is denied