Omaha daily bee., 1898-05-15
NOT SUPERIOR TO COURTS
Relator Files His Brief in the Holoomb
Mandamus Case.
GOVERNOR REQUIRED TO EXECUTE LAW
Opinions Of Nebraska Supreme Court
Cited 20 Sustain Position Writ
of Mandamus Will Lie
Against Him.

LINCOLN, May 14.-tSpecia1. 1.-The re-
lator's brief in the case Of the State Of Ne
braska ex rel Victor Rosewater against
silas A. Holcomb, governor Of the state Of
Nebraska. respondent. has been filed In the
ONCE OF the clerk OF the supreme court The
case grows out Of charges filed impeaching
the members Of the Fire and Police Com
mission Of the city Of Omaha In which a
mandamus is asked to compel Governor Hol-
comb to hear the testimony in person in
stead Of by proxy. The brief begins:
The relator comes not into this court ex-
cusing himself, but by virtue of right
which the respondent is trying to deny.
The question presented Is not one Of court
esy between the departments Of government,
but one Of Justice. The motto OF the state
OF Nebraska is Equality Before the Law"
IL that motto means anything 1t Is that the
humblest citizen in the state, equally with
the wealthiest and most influential. equally
even with It's governor. can appeal to the
courts for impartial and exact justice ac-
cordng to the law.
Quoting the law, be says:
Section 16s OF the charter provides. that
upon written charges being filed against any
commissioner, the governor shall, within
reasonable time, investigate the same upon
testimony to be produced before him."
BY virtue OF the provisions of this section
tuted judicial tribunal to try said charges,
purely and simply a statutory creation, pos
Bessing none of the powers of a court OF
general jurisdiction with authority to ap-
point referee or delegate this statutory
power to a commissioner or other officer to
make finding upon the law and the facts
After the testimony Is taken IN a legal
manner. undoubtedly the governor can seek
counsel and advice Of whom he chooses, II
he feels that the responsibility Is too much
for him, or his duties as commander-in-chier
Of the army and navy OF the state OF Ne
braska are so very onerous that he cannot
find time for anything that will distract his
mind from the selfimposed task OF over
throwing Spanish dominion in America.
Position of Governor.
The sum and substance of the governor 3
position is. therefore, that he refuses to act
himself he denies the right OF the supreme
court to compel him to act, still he wants
to refer these grave charges to private
citizen. This position of the respondent, 10
quote from his brief, sis not only trihing'
tdt perilously near ridiculous.
% The express language Of section 16S IS tnat
the governor shall Investigate upon testi-
mony TO be produced before him. Testi-
mOny presumes an oath administered py
lawful authority, otherwise 1t Is not test-
Irony.
What the relator objects to Is the pre-
yiduals, not under oath, as required py tne
charter taken by a private Individual anu
call the same evidence. What the relator
has a right to Is that the governor shall set
a time and place when legal testimony can
be prodyced in q legal manner. This is
purely ministerial.
Under section 16S the governor succeeds
10 powers formerly vested in an appointing
board, consisting Of the governor. attorney
general and land commissioner. Mandamus
would clearly have issued against members
Of that board This is admitted by re-
anondent in his brief. Why not, then
against his successor? Would not manda
mus issue against the governor to compei
performance of ministerial duties imposed
on him by statute as labor commissioner or
as oil inspector? Would II not issue as"'us. u.s.
the governor II he were member OF the
State Board OF Transportation? Would II not
issue against him II he were vested by stat
ute solely with all the powers now lodged
in the State Board Of Transportation? II not
why cannot the legislature evade the led-
eral constitution and defy federal courts by
making the governor, who claims to be ex.
empt from all court process, the State BOARD
Of Transportation!
The relator admits that there Is a hope
less conflict In the decisions Of the courts
Of last resort of other states. upon tine
mower of the court to issue this writ to the
governor to require him to perform min
isterial act but insist that Nebraska law
and precedent are all In favor OF 1t.
Required to Execute the Law.
The first words of the preamble to the
Nebraska constitution say: I'VE the people
sovereign in their own right. have dele
gated to their servants or officers certain
powers to be exercised for the benefit OF oil
the people. These powers are prescribed In
the written laws Of the state, the cOnstitu-
tion and statutes. The legislature is bound
in its law making powers alone by the con-
stitution. The executive Is required to exc
cute the laws as found in the constitution
and as enacted by the legislature, while the
judicial branch Of the government is the
Interpreter of these laws. No one OF these
branches Of the body polite Is Independent
of the other in the sense Of separate
sovereignty, each Is circumscribed by thu
law, for by the law, and not by the officer
are we governed.
In the origin of the writ Of mandamui
we discover the fallacy in the reasoning o
those courts which hold that 1t will no
issue to the executive the writ to require
the performance OF a Ministerial act. 1t wa
Q high prerogative writ issued only by th'
Kings bench where the sovereign was pre-
sumed to personally preside. As the kin.