Omaha daily bee., 1899-11-10
RIGHT AFTER STATE BOARD
Pacific Express Company Carries Its Case to
the Supreme Court
INVOLVES CONSTITUTIONAL QUESTIONS
Wants Board of Transportation En-
Joined from Fixing, Establishing
or Reducing Ratcs-Morsman
Makes the Argument.


tho various state boards was argued and
submitted to the supreme court today. In
the case OF the Nebraska Telephone company
against the state, in which the points raised
were practically the same as those argued
today. tho court handed down decision
favorable to the boards and evading the is
sue as to consttutionality on the ground
that the petition did not state sufficient
cauee for equitable relief along that line.
The case heard today was begun by the Pa
cifc Express company and is, in brief, an
action to prevent the State Board OF Trans
portation from fixing, establishing or reduc-
ing express rates. Many Intricate legal
points came up in the discussion. all of which
were gone over in detail by w. w. Mors-
man OF Omaha, representing the express
company, and Attorney General Smyth rep
reSenting tho state.
It was argued by Morsman that the act
OF the legislature OF 1897. creating the Board
OF Transportation and defining its powers,
Is in conflict with section 26 of article OF
tho constitution, prohibiting tho legislature
from creating any other state office than
those defined in the constitution, and further
that II Is in conflict with section 2 OF article
" which provides that none of the officers
OF the executive department shall be eligible
has never been decided by the court. Mr..
Morsman said that he had no complaint to
make OF any abuse Of existing power on the
part OF the board or its secretaries.
This phase of the question was not argued
in the telephone case, but rather that no
order the board might make could be en-
forced without an order of the court and
that the board had absolutely no power to
proceed against either the express company
or the telephone company. He held that the
company, being engaged in lawful bus-
neec, could and did fix its rates by contract
and that this right was as sacred as any
property right.
Morsman's Argument.
MI Morsman devoted most of his time to
that portion of the petition attacking the
constitutionality OF the act, with the idea
OF causing the court to recede from
It, former decision.
Ever since the Board OF Transportation
was created in 1887 its constitutionalty has
been questioned and the point was even
raised and agitated many years before that
TINA when an attempt was made to secure
the passage OF an act creating q railway
commission. In 1888 it was proposed to es
tablish such commission and the
stitution would not permit the appointment
OF such officials to draw salaries from the
state a plan was suggested by which GER
tain state officials were to organize board
and hire secretaries at fixed salaries. In
this way 1t was thought that the provisions
of tho constitution could be evaded and It
Is in this way that it is evaded now and
haJ been since 1887.
When the bill came up for consideration in
the legislature it was opposed on consttu-
do oy,I
asked for an opinion as to whether such off,
ces would come within the inhibition of the
constitution.
The supreme court, then composed OF
Judges Maxwell, Cobb and Lake, gave its
opinion in writing to the effect:
First-That a board of railroad commits
sioners, with powers and duties similar to
those in other states who were paid from
the state treasury and whose field Of duty
was co-extensive with the territorial limits
of the state, would be executive state Off
GERS in the sense of the constitutional pro-
hibition and beyond the power of the Iegis-
lature to create.
Second-That there was no constitutional
inhibition to the imposition of additional
executive power, as such, upon any or either
OF the officers constituting the executive de-
partment.
The question was not argued before the
court at that time and it's opinion cannot of
course, be considered judicial opinion.
AS to the authority of the secretaries of
the present board Mr.. Morsman holds that
even II the law contemplates more than the
formal ratification of the acts of the secre-
taries it does not change the fact that they
are, essentially, state officers, exercising
governmental powers which belong to the
state alone The secretaries are empowered
IN all mattprS Of examination I'M
tion to perform the duties described for the
board The powers they exercise are the
powers OF state, exercised in behalf of the
state. co-eXtensively with the territorial
limits of the state They are appointed
under state authority and paid out of the
state treasury.
II the court decides in favor of the express
company there will be revolution in the
conduct of the state administration and gov
ernment, as all boards composed of state
officials will be destroyed.
The case of the State against the Homo In
surance Company to collect fees paid to
Eugene Moore has been advanced for hear
ing
The case Of Auditor Cornell against Gov
ernor Poynter was postponed till the next
sitting of the court This Is case In
original Jurisdiction and promises to he
hotly contested one.
Low Grade Coal.
From the results OF an analysis by Prof
II. IL. Nicholson of the State university it
appears that the coal recently discovered in
Dakota county is of rather low grade II is
probable that the quality may improve as
depth is gained on the drift, but this can
only be ascertained by further developments
or the vein. The vein from which the same
was taken is extensive and will probably be
mined IL 1t is found that the coal is of
enough value. When dry the coal was
lustreless, dull and earthly in appearance.
The South Fork Fair association filed
articles OF Incorporation with the secretary
OF state this afternoon. The incorporators
are: l.. G. Lambert, w. b. Cooper. William
Sell, j. u, Grimes and W. S. Grimes. The
Lynch Creamery company OF Lynch also in
corporated today. with capital stock o.
$1,000
Lincoln Local Notes.
The fusionlsts will hold jolliicaton to-
morrow night. Committees have been ap-
pointed to arrange for the event