Omaha daily bee., 1899-01-15
STATES FUNDAMENTAL LAW
Some Of It's Original and Peculiar Features
Explained.
NEW CONTRIBUTIONS TO CONSTITUTION

interesting Research Embodied in q
Paper Presented TO state Historical
Society by Charles 3. Lobin-
gier of Omaha.
1t might seem at first thought that a
young commonwealth like Nebraska would
have no original or peculiar features In Its
fundamental law. Constitution making had
been in progress, even in America, for al
most a century before the first convention
assembled for that purpose within the pres
ent boundaries of Nebraska. Moreover the
political ideas which form the subject matter
Of most constitutions had been wrought out
through a long period Of European civic de-
%velopment before the new world history had
even begun. One might expect to find there
fore that the Nebraska constitution is but q
copy Of similar instruments which preceded
It,. In reality, however, the fundamental
law OF this state contains a number OF i'm
portant provisions which appear to be origi-
nal, and which afford an interesting field for
investigation not alone for the jurist and
the student Of our legal system, but also for
the local historian.
Original Features I'm Bill OF Rights,
The bill Of rights Is the Oldest part Of
existing constitutions. Many Of its clauses
are exact reproductions of the instrument OF
the same name which marked the successful
issue OF the English revolution. Still other
provisions find their origin as far back as
magma charta. In this part OF our consti-
tuition we might least expect to find origi-
nality, and yet our bill OF rights provides
Its own rule Of construction by means Of q
clause which is different from every other
state constitution which l have found ex-
cept one.
1t is commonly said that the canons OF
construction for federal and state constitu-
lions are directly opposite, that the federal
instrument is a grant and confers no powers
not expressly mentioned, while a state con-
s%titution is a Limitation and passes all W
not expressly retained. To this doctrine, 80
we'll established elsewhere, our bill Of rights
affords an exception. For the last clause OF
this part Of our fundamental law Is as fol-
lows: This enumeration Of rights shall not
be construed to impair or deny others, re-
tained by the people, and all power not
herein delegated remains with the people,"
The significance Of this provision has been
generally overlooked. Literally applied it
would require the same rule Of strict con-
struction for both our federal and state con-
situations; it would give the legislature, as
well as the other branches Of the state gov
eminent, no implied overs while every
legislative act would need support In some
expressed clause Of the constitution. I have
not observed, however, that any such rule
has been followed in practice. The con-
struction given to our fundamental law by
the courts appears not to differ from that
awarded to state constitutions generally, and
l have known OF arguments at the bar
wherein 1t was either assumed or asserted
that our constitution is q Limitation and not
a grant. Still it seems unlikely that 30 plain
a provision will always escape notice, and 1t
may yet work surprising changes In consti-
~tutional Interpretation.
This clause has been found in the consti-
tuition of no other state except one. The
exception Is North Caroline, whose funda-
mental law contains an exactly similar pro-
| vision, which has been recognized and APP
| piled by its courts. The relation between
these two constitutions and the extent to
which one may have borrowed from the
other offers an interesting problem for the
historian.
Another peculiar provision Of our bill Of
rights is that which guarantees the right
Of appeal. 1t is as follows: 1.-THE
right to be heard In all civil cases
in the court Of last resort, by appeal.
writ Of error or otherwise, shall not be
denied" The guaranty Of the right to be
heard In courts Of original Jurisdiction IL
found in almost, II not quite, every Amer
lean constitution and Is as old as magma
charta. But the right to be heard in an
appellate court is a different matter and I
find no constitution, except ours, which
guarantees 1t. This provision, like the one
last noticed, would be exceedingly impor-
tant were it literally applied, for its logical
| effect Is to invalidate all legislation which
prevents a hearing in the court OF last re-
sort. 1t might even be true that a literal
construction Of this clause would invalidate
certain statutes which cut off an appeal
where a litigant fails to take certain formal
steps within a prescribed period. But this
clause, like the other, is not literally ap.
piled. We have a statute which entirely
forbids an appeal from IN inferior court In
cases tried before a Jury where the amount
claimed does not exceed $40, and this stat
ute has been several times upheld by the
courts. In practice, therefore, this constitu.
tional provision seems not to have ma
terially affected the legislation of this state.
1t has, however, influenced the course Of ju-
dicial legislation, at least one decision hav-
ing been overruled on the strength Of the
constitutional guaranty.
Popular Vote for Senator.
A provision submitted separately from the
constitution itself, but nevertheless form
ing a part Of that instrument. is that which
authorizes the legislature to enable the
voters to express their choice OF candidates
for the office OF United States senator. At
the time Of its adoption 1t was a unique plan
and was welcomed as a step toward pop
ular election Of senators. But In practice
it has amounted to little. Twice in our
political history a popular candidate has re-
ceived a large vote for the senatorial office
once in 1886, when the late General Van
Wyck sought reelection, and again in 1894.
when Messrs. Bryan and Tturston were the
rival candidates.
But the legislature has at no time
actually provided for a popular ballot upon
senatorial candidates, and as the constitu-
tional clause is permissive only and not
manistory or sSif-tNscutinE. the votes
which are cast for this purpose are not
officially canvassed and are treated as a
mere voluntary expression by the electors.
Mo : a. Il no Instance ass q Seaa orial
contest In this state been determined or
even materially affected by the popular vote
cast for a particular candidate. Never
the less this provision has been incorpor-
ated into the new constitution OF South
AZ liz A~I ..- 49,