Omaha daily bee., 1902-05-22

pubic health OF pubhc WeIhrt end
N IL not competent for the city as a
police reEulEuun 70 grant q monopoly 20
one fndiTddusl hv contract 10 enter upun
The private premises Of the inhabitants Of
The ciU and al their expense collect ane
remove those iuuoNiouE EuhstEDces, such
as ashes, Gnders, stable manure OF other
EuhEUanceE not In themselves ~nulshnces-
but which Il allowed 10 In un-
reEsonabIe cuanuries would become such
OF which may be utilized foT some hene-
hcial purpose. such an ATTEMPTED exercise
CT power ts in excess Of authorltg granted
by the charter. an invasion Of the per
sonRl and property rights OF the ciu1ens
IN restraint Of trade and unnecessarily
The section q the ordinance q the city
q Omaha unoer consloersuon hsla VOC
exercise Of power IN excess Of the az
thority conferred with the charter govern
Ing such city.
In the opinion Judge Holoomb discusses
the case as follows;
The defendants in error. REALTORS in the
court below. sued out a right Of habess
corpus for the purpose Of reEatning Their
liberty from Imprisonment in the city jail
where they were committed for the alleged
violation Of one % the ordinances Of the
city Of Omaha. Il being alleged as a ground
at the trial that he section q the 0rdi-
nance authorizing their conviction ana im-
priscnment was nun and void anc Their
the district cour1 resulted In q judgment
holding the section Of The city ordnance
UNDER which the conviction was had void
and discharging the REALTORS from custody.
The respondent as custodian OF the
conviction IN the criminal TRIAL. prusecutss
error proceedings in this court for The
purpose Of obtaining a reversal OF the
judgment discharE1nE the REALTORS from
custody.
Turns Down smyth-
The case Of the State against the Mis-
soun Pacific RAfwBy Company was dis
missed because IL Is 4 criminal action and
cannot be commenced before the supreme
court in original jurisdiction This is the
case IN which the state Was seeking 10 re-
cover over $500, 900 from the railroad CON-
pEny because Of violation Of the mhxinum
freight rate Law. Il was begun by former
Attorney General smyth. Tit opinion in
this case is by Chief Justice Sullivan The
syllabus follows.
The only authority this court has 10 take
coguizance Of crimes is that given by the
constitution in The grant Of appellate 91rls-
When the legislative thought is cast in
the mould Of the criminal law II viii De
presumed, nothing appearing 10 me con-
trarv. that the remedies contemplated were
those generally used in courts exercising
s se1Ii1n : 81 he act Of issS. Known as the
Maximum freight rate law, being puIa-
tive and not remedial are TO be entorcso
IN hEEHI1hAllE a -
criminal code.
In the opinion Judge Sullivan says:
This action was commenced in this court
10 recover the sum Of tssS,0o clalmeo py
The state from the missouri Faelne raj
legged violations OF the ect OF 4hS@ corr
monty known as the MaKlmum Irelsnt
rate law No question Is MADE as 10 the
validity Of the statute, and the defendant
hv its counsel disClRims any wish or IL
tention 10 evade responsibility for the acts
Inu--fhaa IN ThE nnTfTfnn- II 0EnIEE. now
ever. that the case is one which this court
has original authority 10 hear and oeteI-
mine.
Orders ON Submitted Motions
Pettibone against Fitzgerald; guardian
ad litem allowed SIS TO be taxed as q pErl
Kas against State ex rel School District
q SATPy to os Sn6yat M S%sTded 70 oeniedi Notion
10 modify judgment as 10 COSTS oehSo-
Motion for reheartng denied
Institution. VIII II. Thompson appointed
guardian ad htem for minor heir plaintiff
Book against Grooms. Motion TO vacate
Judgment OF dismissal suspended Motion
for reheRrtng sustained Leave TO ?
Moore against HeltzeL Motion for man
date instanter denied.
Russell against Anderson Motion TO
strike briefs Of appellant overruled- Motion
10 affirm oveTrOled. Leave 10 Eppelees 10
serve and file answer briefs within three
Moolsey against Williams. Appellants
briefs stricken from files. Judgment OF
DlJon against Watson. Appellant al
\ lowed ten DAYS 70 serve and file briefs. APP
peIlee allowed not 10 exceed thirty lays
/ thereafter.
Omaha against Clarke. Motion for leave
10 withdraw bill Of exceptions Tor corree-
tion and amendment Overruled-
Trompen against Yates. Motion for leave
10 Lincoln Drug compEny 10 voluntarily
become a party defendant in error over
ruled. Motion to supply record sustained
Motion for leave 10 amend petition in error
Cady Lumber Company against Clark
STATE against Nebraska Savings Bank.
Objection 10 jurisdiction overruled-
State ex rel Blessing against Davis
Hearing on application for order OF refer
enSe continues 10 ynRs : 1n-,-s,,. con.
pany against Collins. Motion 10 quAsh bill
Of exceptions passed unul June q
Orders On application for rehearing:
Peters against Hun. Rshearing denied
Nebraska National Bank against Halo
Farmers and Merchants Bank Of Gslva-
III, against Mosher. Rehesring allowed
against Parrotte. Reheartng denied.
Codetngton Savings Bank against Arosr-
IRE against Reiohenberg. RehearinE
Trennerry against Rsichenberg. Rehssr-
Decker against Decker. ReheAring denied
First National Bank of Greenwood
against Reece. RehearinE denied.
Carpenter Paper Company against Tyn-
dale RehearinE denied.
Gregory against LeAE1tt- Rehearins
Rushton against Johnston Rehearins
Loan and Trust Company against Stod.
dErd- Rehearing denied
Mccormick Harvester ManufacturinE
Company against Scott. ReheEring denied
Stafford against Harmon. RehesrnL
denied.
Hobbs against Norman. RshssrinI
denied.
Glynn against Glynn. Rshesring denied
Hubenka against Nech. Rehearing denied
Il Opinions fled May -
Bender against k1ngman- Affirmed Kirk
patrick. c
Union Pacihe Railroad company aEaiux-
Cheyenne county. Affirmed Kirkpatrick. c
state against Missouri Pnctnc Railroad
COMPANY Dismissed for want Of turisdic
ton Sullivan. c J.
Farmers Mutual Insurance compRnl
against Kinney. Reversed Oldham, Q
Battle Greek Valley bank against Collins
AGirmed Barnes. c
Columbia National bank against Baldwin
pecres directing sale 10 pay PLAINTIFF
judgment ARMED Reversed insofar 81
II releases property moi attached and At
tached property directed 10 be FIRST sold. 4
insufficient 20 pay casts and decree, thsl
ing Of referee OF az much as necessary b
sod and proceeds 80 spplied. HREtfnrs 4
Brun against Brun. A1rned- kirk
patrick c
KNIGHT against DsnmAn. Reversed
I Pound. c.