Omaha daily bee., 1899-02-04

! believe to be in violation Of their oaths OF
Office and their consciences."
The names of all the commissioners except
that of Mr. Birkhauser were attached to the
| answer, Mr.. Birkhauser being away from
the city.
No sooner had Mr.. Connell finished read
| ing the document than Mr.. Wright made a
request for more time, though Mr.. Connell
said he was ready and anxious TO go on with
the case then and there Mr.. Wright made
his request, already stated, upon the
ground that 1t was necessary to have present
the mysterious party who circulated the
Noise petition. There were so many start
ling allegations in the answer of the COM
mission, he said, that he would require time
to properly meet them They had been a
great surprise to him. He did not give the
name of the person upon whose presence the
case seemed to hinge, nor would he after
the court adjourned.
Three Names by One Person.
The afternoon was frittered away before it
was discovered upon which leg the Noise
mandamus case stood. AT the very outset
Mr.. Wright, on behalf of his client had
taken the position that in a proceeding 10
vacate or set aside peremptory mandamus
the burden OF a showing should be upon
the respondents and yet he went ahead
and put his first witness on the stand TO
prove matter that had already been accepted
as true by the court when the peremptory
mandamus had been issued The result was
that the afternoon was all 10 no purpose
and the case starts this morning as though
1t had not begun.
Judge Scott asked, to begin with, if there
was not a legal question involved which
would have 10 be determined one way or
the other and upon which would hinge the
necessity or not for taking proof, this legal
question being as to whether the Fire and
Police commission, viewed in the light of
an inferior tribunal. should have its exer-
else of discretionary power reviewed. Mr.,
ConnelI said he did not deny that the court
had right to review the acts OF the com
I\.zsion provided they had been arbitrary,
bus that question could wait until the facts
were all in to see whether the act of the
board in refusing the Noise license had
been arbitrary or not.
Then Mr.. Wright, who had had a large
number OF witnesses subpoenaed, put Thomas
]. Davis. the clerk OF the board, on the
stand TO prove the records of the Noise
application. Things ran along smoothly
enough in this way until Mr.. Connell, in
an attempt at cross-examlnation, asked Mr..
Davis question as TO the genuineness Of
three certain signatures on the Noise peti-
ton. These were those of NJ. B. Sanders,
]. Fl. Vamplin and Kate Fisher, and they
were all in the same handwritng-a bold,
round, running hand. 1t was evident they
had been written by the same person
Wright objected, but only on the grounds
of incompetency and irreleyancy, and the
way was accordingly opened for tedious
hagging for several hours over the legal
status of the board. Wright claimed there
should have been written protest filed and
he denied that the board could exercise iu-
dcial discretion in refusing the Noise IL
cense. Mr.. Connell said if the court man
damused the board the court would have
power only to compel action" but not to
order the license to issue. The board had
been given power to license, regulate and
prohibit" 1t had the same powers under
the law as county boards. Wright made
much Of the words in the statute, "if deemed
expedient." but Mr. Connell said the same
right OF expediency was possessed by the
Fire and Police commission as county boards.
Mr.. Connell produced a number OF supreme
court decisions, particularly a case against
the Cass county board from the Twelfth
Nebraska and others. Wright fell back upon
an Illinois case and Deputy County
Attorney Dunn came to his as
sistanee with an argument 10 the
effect !. that the board could exercise
judicial discretion" but could not "ar-