Omaha daily bee., 1902-05-31

trustee is invested and a profit results ces-
tut que trust. In following the trust money
into the investment, may claim such profit
which he had a charge, at least TO the eX-
tent OF said charge pom the original, fund.
MidiSnd state Bank, 81 Neb', J. limited;
and Morrison V. Lincoln Savings Bank and
Safe Deposit Co, 81 Neb., 22S, adhered 20.
1858. lnglehart against LulL Error from
T. & national bank, which held a note OF
sis0 for collection belonging to another
s todR of q r whi Z i tSSssSSeof 'G and included II
such renewal note an amount OF It's own
unsecured debt against the MAKER suit
note SSl5.45. and at the same time obtained
a mortgage upon the homestead Of the
Cure the payment OF the said renewal note.
Held. that the national bank and Its stock
holders had a direct p~ecuniary and beneh-
cial interest in the transaction.
2 The assistant cashier OF such bank,
who was also a director and stockholder
that he could not lawfully take such
10 act as such officer, on account OF his
direct pecuniary interest in the matter, and
that the acknowledgment and the mort
1883. Perkins against Milton. Error from
Saline. Reversed. Albert, c. Division No.
A -recognizance in a bastardy proceeding.
conditioned that the accused shall appear
at the next term of the district court to
answer such accusation, and abide the
order of the court, is limited to the term at
which 1t exacts the appearance and where
the case Is continued to a subsequent term,
without a renewal of such recognizance
and the defendant fails to appear at such
subsequent term, there is no liability on
1891, iler against Ross. Error from
Douglas. Affirmed, .Holcomb, J
1 L Under the provisions of. the charter
class the authorities thereof for the pur-
lie health, comfort and welfare, are EN-
powered to enact by ordinance all neces-
sary and reasonable regulations for the
collection and removal OF all garbage,
filth and other noxious and unwholesome
and other waste and refuse matter accu;
INITIATING in %centers of popuation, and
which, without such regulations, would
fort and health OF the inhabitants OF such
cities, and to license persons engaged in
2. Such cities may also as incident to the
power of regulation, grant an exclusive
privilege by contract to one person to col
lect and remove under it's own immediate
direction and control and in pursuance of
regulations enacted for that purpose those
noXiouS and unwholesome substances which
are nuisanoes per sc and a menace to the
public health
8. The legislature cannot under the guise
of police regulation, arbitrarily invade pri-
waite property or personal rights. The test
when such regulations are called in cues
ton is whether they have some relation to
the public health or public welfare. aud
whether such is, in fact, the end sought to
be attained. Smiley ", Mcdonald, AZ Neb.. 8.
4. 1t is not competent for the city as a
police regulation to grant a monopoly to
one Individual by CONTRACT to enter upon
the city and at their expense collect and
remove those. innoxious substances, such
as ashes, cinders, stable manure or other
substances not in themselves nuisances,
but which If allowed to accumulate In I'M
OF. which may be utilized for some bene-
fetal purpose. Such an attempted exercise
of power is in excess of the authority
granted by the charter. an invasion of the
personal and property rights Of the citi-
zens, in restraint Of trade and unneces-
sarily creates a monopoly.
5. The section of the ordinance of the
city of Omaha under consideration held
void and unenforceable because an at
authority conferred by the charter gov
erning such city.
age. Original. Writ denied. Sullivan, CT.
/. The right of the courts to determine
ever they may, arise, is given by the con-
s%titution in explicit terms and is indis-
2. But equally clear and incontestable is
the right of the executive officers named
in the constitution to exercise ali powers
properly belonging to the executive de-
8, Considering the matter theoretically
and Leaving practical results and past ad;
seem that the farthest limit of judicial
authority in mandamus proceedings against
officers of the executive department is to
hear and determine, to give judgment, but
not 70 enforce It by c~oercive process.
4. The principle of exemption from man
damus is grounded upon a distinct consti-
tutional inhibition-lCon., art. 2, sec. n
and does not at all depend upon Official
rank. Whether the writ of mandamus
should be granted or refused has been
made to depend in every case decided by
this court upon the character of the act IN
question and not upon the office of the
respondent.
8. The theory that the judiciary in issu-
Ing a mandamus TO a member of the eX-
thereby indirectly and in violation of the
constitution exercising power properly be-
longing to the executive department has
been repudiated by this court in a long
line of decisions.
6. The established doctrine in this state
is that when a law in positive terms en-
joins upon the governor or other officer of
the executive department a mere minis
erection in regard to the matter-no judg-
ment to exercise as to whether he will or
will not act-that writ OF mandamus may
issue, and its issuance is an appropriate
I. The doctrine of res judicata is that a
question once determined by a judgment
on the merits is forever settled. so far as
the litigant and those in privity with them
while the decision stands, a sealed and
closed question.
s.. A public officer is regarded as being in
privity with his predecessor when both de-
o. A judgment against a public officer in
regard to a public right binds. his success
sor in office.
10. All ~litigants are affected by the rule
ing upon the sovereign and the citizen.