Omaha daily bee., 1899-03-09
MAYOR MOORES WINS
Sui; Brought by BrOptch Thrown Out Of
Supreme Court,
FINAL OPINION HAS BEEN HANDED DOWN
New Charter out Of Any Rights Of ofier
to Bold Oven,
CONTESTANT HAS NO STANDING At LAW
Only President Of the Council oan Institute
Contest Proceedings,
JUDGE SULLIVAN As USUAL DlSSENTS
End of Long Drawn ou1 Contest
which Has luterfercd with the
Local Government of City
of Omaha.

of Omaha.
LINCOLN March -l Special TeeEram)
The supreme court today HANDED down an
opinion dismissiuc the action il the
Brnutch- Muures case, holding that BroatcL
was nut the proper party to bring thu ar
ton The opinion is by COMMISSIONS II
vine. runcurred in by Judge Harrison and
with Judge Norvnl concurrur III Judgment
Of dismissal Judge sullivan dissents. The
syllabus OF the case is as follows.
The Question of the suflCtency OF pc
titiur or information 10 stnte cause oi hc-
tiOu is when the defect Is substantlaily open
for consideration throughout the proceeding
and may even he raised . motion for re
hearing
:. Want Of legal cupncity to sue refers TO
3 general legal disability. II such 40 npt
exist the failure Of plaintiff 10 show right
Of action in himself goes TO the suthciency
OF the pleudinE TO state cause Of action
and is not waived by failure to demur for
want Of capacity.
4 The provisions Of 5 l. 1887, chapter x,
the so-Called charter Of cities ol the metro
pulitan class examined and held to demand
that in case Of ineiEihiliry Of the person re
CeivinE the highest number Of votes al the
first general election for mayor the pre7l-
dent Of the council should exercise The ofilce
and not the former incumbent.
The opinion goes into ths history OF the
case down TO the time Of the allowance OF
. the retearing and goes over some OF the
( evidence introduced. II says;
Origin of Quo Wnrrnnro.
. Under procedure quo warranto may ne
! maintained either by the prosecuting Ettor-
ney or by i private individual. But i The
proceeding be not instituted 10y the public
officer II must be by person who himself
claims the Office (State against Stein,
Neh. 52gD Therefore, question which we
logically meet IL limine is whether the re
latur has shown in himself q right TO the
/ office. assuming that the respondent was in
eligible. Until the motion FOR reheaTlng
this question escaped attention by counsel
or at least II not argued. On the
rehsarnE il has been urged that the re-
lator the incumbent Of the office under
q former charter, was not entitled 10 hold
! over until the time this action was COM
menced.
On behalf Of the relator If is argued that
/ Il as ucw too ia,- l. -a4se luieh question
: II Ihe Question E5es 20 the sufiicleney of tEfs
! information TO Ftate OF aCrion ii is
NOT too late, although regularity Of practice
should require an earlier presentment Of the
point
If the question cannot nov be raised II
must be because ii goes not to the suffcency
of the information 10 state cause OF az
tion but only TO the legal capacity of the
plaintiff 10 sue. The latter defect must,
when ii appears on the face of the petition,
be suggested by special demurrer on that
ground or il Will be waived Code. sec. "a,
go
Here followed number Of citations Of
cases on the point, and the opinion con-
Jinues.
Right TO MRinTnin Action.
The right of the relator to maintain the
action depends upon his own right 10 the
office the statement OF that right is essen
tiEl 10 the statement Of cause OF action;
ne is
/ been mayor when the old charter was re
peaied This Is wholly question Of Law.
| The question must be determined by q con
I struCtiOn Of section 1O2 Of the present char
Ter il connection with other provisions in
pari materiR The section referred 70 Is us
follows
Section 1N2. All general elective city Of
fuers including CITY counCilmsu. their Hp-
pointees End existing boards, agents and
servants, now lawfully holding office or in
lerested with the care Of public property or
affairs under the laws and ordinances hC"e-
tofore enforced, shall except as in this act
otherwise provided, continue IN Office and
the exercise of suCn trust until The first gen
ergl city election herein provided for and
until the officers elected al such election
shall have duly qualified but such officers
agents, servants and appOntees may be re
moved from Office suspended or discharged
as provided by law or ordinance All exist
inc boards entrusted with property and busi-
ness under authority Of laws heretofore en-
uf office. except as herein otherwise pro-
vided turn over such property, records and
accounts 10 such other officer or boards at
are herein empowered or entrusted TO sue
Ceed thereto or have possession thereof.
ANY officer continued IL Office uuder tn.
provisions Of this ACT beyond The date when
his term would expire under the law In
force when elected OF appointed shull give
additional bonds for the faithful discharge
of the duties Of his Office for SUCH extended
Term, the amount OF such bond 10 be gov
erned by this aci or when NOT provided for
herein, by ordinance i shall be the duty
Of thH respective boards and officers 10 pre-
mare written detailed abstracts Of all tools
implements and materials Of every kind be
longing 10 the city in their trust and care
also all WORK Or sturehOuses owned or iepBed
by the city FOR storage o" other purposes, IN
duplicate and 10 certify az members Of such
boards 10 the correctness thereof. such cer-
tlhed abstracts shull hr delivered 10 the
mayor VINO shall file one Of each OF said
copies tor record win rhe city clerk and the
other copies shall be handed 10 The heads uf
tho respective departments 10 be USED EE b
basis Of checking NJ the abBlract.
Provided. That the provisions OF this Fee-
ticu shall nol apply 10 the Board OF Fire and
Police Commissioners uui EHld board ana
The members thereof nov acting shall cease
10 hold Office upon the qual hcHtiOu Of their
sucnassurF appointed bv he governor under
me provisions Of TINS act
j ~ evident that the general purpose ~
this section was TO continue = existence the
essential governmental machinery OF the
city until officers could he selected and IN
stalled Unuer the new act This act with IN
emergency clause repealed the former chur-
ter 50 tnut without this section the City ~
Omaha woulu have been without d municipal
government from the time the new act was
PASSED until The organization hereunder
several weeks later. The object OF lbe sec
tlou was % bridge over TINS period .
Upon tie perfection uf the new organ izariou
se@ion 10. would have performed It's tuHc-
Lions End become obsolete
Another Charter auotHtion.
Section 75 Of the charter is quoted a. fol-
lows
Section - When any vHcEnev shall hap
pen IN thf ufice Of mayor hv death resieua-
non absence from the CITY, reuuFal fro p
Office refusal 70 qualify or DtherV Sc Tire
president of Inc couuei. Cor the time beira
small eXera lLc Office NJ ugy1' wiru an
me rights privileges powers and jurisdiction
o. The regular mayor until such vacancy bs
filled or spct disability removed or IN case
o. aaale-aFy s-gp4cg uEiG las yoi ala.l