Omaha daily bee., 1897-01-07
OVER THE TWO NEW JUDGES
Fight in the Legislature Will Begin at
TOday's Joint Session,
QUESTION OF THEIR SEATING is OPEN
Adoption of the Amendment 60 tho
Constitution Providing for Adj
ditionnl Judges Not
Certainty.

Inc lOBlslAluTe Cdlilt lllu NbilISNiNlbH NA'h
a free silver convention today and suffered
in consequence The populist members OF
the house assembled at 10 o'clock, but wero
impatient to get away to the opera house,
where local Statesman with a national
reputation had been advertised to say a
few words on the silver question. AS soon
as the necessary preliminary work could
be accomplished the house vacated the hall.
The senate remained In session only long
enough to enjoy the new chaplain's first in
vocation. Little will be done tomorrow in
the way OF legislative work, the day
will be taken up with the proceedings OF
the joint convention in canvassing the vote
cast at the recent election. and with the
ceremonies ipcdent to the induction of tho
new state officials into their respective
places.
The Joint convention is expected to pro-
duce something of interest for 1t Is anticl-
pated that the first move in the plans to
seat two additional judges on the supreme
bench will be made The attitude to be
taken by the populst leaders is In doubt,
although 1t may be stated with authority
that nothing of a sensational nature Will
be attempted. Governor Holcomb will dis
cuss the matter at length in his inaugural
message tomorrow. He will treat the sub
ject from a judicial standpoint, and Will
make several references to decisions of the
Nebraska supreme court and will also refer
to cases in other states having direct bear
ing on the point In controversy. The con-
stitutional amendment providing for an in
crease in the number of judges of the SUI
preme court received S4,579 votes. Accord
ing to the official returns there were 230,795
votes cast,
AMENDING THE CONSTITUTION.
The constitutional provision governing the
adoption of amendments is brief-"if a ma
jority of the electors voting at such elec-
tion adopt such amendments the same shall
become a part of this constitution" The
words are simple enough but they are sus-
ceptible of many different constructions.
The Nebraska supreme court has decided
that the words are subject to qualification.
In 1888 the legislature submitted an amend
ment to the electors which added twenty
days to the legislative session. AT the elec-
tion in November 1884, the total number
of votes cast was $4,000 for state officers
and 10000 for senators and representa-
tives. The proposed amendment received
81 959 affirmative votes When the legisa-
ture convened in January, 1885. the two
houses met in joint convention and pro-
ceeded to canvass the votes. In transmit
ting the official abstracts to the speaker
OF the house the secretary of state simply
said: II have the honor to hand you here
with the original abstracts of votes by coun-
ties. es cast at the general election on Mo-
vember 4, 1884. for officers of the executive
department, members of congress, district
attorneys. and the vote for and against
the proposed amendments to the constitu-
tion relating to the legislative and executive
articles respectively" The joint convention
of the two houses then proceeded to cam
vass the votes and declare the result. In
making the declaration Allen w. Field,
speaker of the house, said: THE constitu-
tonal amendments voted on at said general
election not having received the requisite
majority as provided by the constitution OF
the state of Nebraska, are declared lost" -
The official declaration of the speaker was
challenged A test case was arranged and
M mi adj
a formal demand upon ii. A. Babcock, at
that time auditor of public accounts, for a
warrant for s., or for one days pay in ex-
cess of the amount allowed him for forty
days services Auditor Babcock refused to
draw the warrant, and Stevenson applied to
the supreme court for writ of mandamus
to compel him to do so. The case was ably
argued. ]. N. Paul, w. II. Smell, A. G.
Troup, T.. II. Peterson and NJ. L. Hayward
were the attorneys for Stevenson. while the
attorney general william Lecse appeared
on behalf OF the auditor. The supreme court
at that time was composed of Chief Justice
Amasa Cobb and Justices Samuel Maxwell
and NJ. B. Reese. The case was decided
in favor Of the auditor. Justice Maxwell
wrote the opinion and Justice Reese as
sented to it, Chief Justice Cobb prepared
a dissenting opinion.
JUDGE MAXWELL'S OPINION.
The opinion written by Justice Maxwell
was lengthy and went into an exhaustive
examination of all the authorities available.
The following paragraph contains the gist
Of the decision
stitution will be adopted "if n majority
OF the electors voting at such election
action. A majority of all those voting
at the election must vote in favor of the
The convention that framed the constitu-
ton doubtless presumed ulat If an amend
the people wo ayoF ~
adoption, hence, before an amendment can
etSs BE su6mtted on tb to the peopie at least three
must agree TO the proposed amendment.
It must then be submitted TO the electors
for approval or rejection, The submission
representatives are to be elected and a
are required to vote in favor of the pro9o-
so s1oh to adept the same The words Inn
tion for senators and Representatives.
Governor Hocomb practically takes the
position assumed by Justice Maxwell If
the amendment providing for two additional
judges on the supreme bench received a
majority of all the votes cast for senators
and representatives at the last November
election then Judges Neville and Kirkpatrick
are entitled to take their seats. According to
the views entertained by Governor Holcomb
and his party councillors. the votes cast
for senators and representatives must be
canvassed by body having the requisite
authority to ascertain the total In the state,
and 1t will be incumbent upon the legisla-
canvassing board cannot canvass these votes.
resolution has therefore been prepared
covering the ground, and 1t will be offered
either in the Joint convention tomorrow or
in the house at an early date. II the only
precedent in the history of Nebraska Is fol-
lowed. the resolution will be presented in
the house after the joint convention haa
adjourned. The resolution will provide for
committee to canvass the votes cast in
each of the several counties for members
OF the senate and house.
The pOpulists claim that canvass of the
votes cast for senators and representatives
will show that the proposed amendment re-
celyed enough votes TO make 1t part of the
constitution
The papers in the Douglas county election
contest are stll In the vaults Of the secre-
tary OF state. but are ready for delivery TO
the house and senate whenever needed.
The populists have set up the claim that
todays session In stll a part OF the first
legislative day. They hold this point In or
der to keep within the law, which provides
that papers In all contest cases must be filed
with the officers OF the senate and house
on or before the second days session. There
have been no new developments in the con-
test cases and there are likely to be none
before the matter Is formally laid before
the committees on privileges and elections.