Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-02-19
GOVERNOR GETS MORE TINE
Case Of onaha Commission OostinuSa Ultil
Fourth Of March.
EQUALIZATION HEARING IS OPENED
Decision Likely to he AnnOupced To-
day whether Portions of Alter
native Writ should he
Stricken Out.
From a star correspondentl

From a STAFF Correspondent
LINCOLN, Feb. 1S.-(Special.)-Th time
| allowed Governor Savage to appear and
| show cause why he does not appoint a FIRE
and police commission for the city of
Omaha has been continued by the supreme
| court to March 4. The alternative writ
| Of mandamus issued in this case two weeks
| ago was returnable today, but by general
! consent the time was extended to enable
the attorneys to prepare their argument.
Briefs on behalf of c. c. Wright, the re-
lator. were filed with the court this morn
ing, and Ed p. Smith, representing mem
bers of the existing Board Of Commission
ers, appeared with an extended argument
| in favor Of the governors contentious.
Mr.. Smith asserts that the governor dis
claims any intention to intimate by his re-
| turn to the alternative writ that there is
| any desire on the part Of the court to en-
croach upon his powers or duties as gov
ernor, but feels that the issuance of the
| writ prayed for would be an unwarranted
use Of the powers of the court, and that he
| would not be performing his constitutional
duty did he not protest to the fullest ex-
tent. The argument begins by calling at
| tention to the three powers OF government
as created or divided by the constitution
legislative, executive and judicial It is
contended that the constitution expressly
forbids any person or collection of per-
sons constituting one Of these departments
from exercising any of the powers or duties
properly belonging to either of the others.
Mutual Limitations.
This constitutional provision, as it Is
viewed by the attorneys defending the re-
spondent, forbids the governor Of the state
from either directly or indirectly exercis-
ing any control over the court or in any
manner directing 1t in the way in which its
duties shall be performed And 1t places a
like Limitation upon the court and forbids
1t exercising any control over the chief
executive or In any manner directing him
as to how duties devolving upon him as
} governor shall be performed. Further
: along the line Of jurisdiction 1t is con-
tended:
under the provisions of our constitution
the powers of the three departments of the
state are not merely equal-they are ex.
: elusive in respect to the duties assigned
to each; they are absolutely independent
Of each other; they are equal, co-ordinat,
and independent. 1t was the intention o.
the trainers of our constitution that they
should remain co. Neither equality or inde
pendence can be said to remain II thi,
! court has got the power to direct the gov
ernor In any manner in the performance o
the duties which devolye upon him as gov
ernor.
III this court has the power 10 lcouape
the governor to act. then the governor i
> not equal, is not independent and hi
powers are not coordinate with the power
u Of this court. Should this court attempt T.
control the governor in the discharge o
any of the duties pertaining to his offic
a | as ROVprnor vOl would ha talyi1e, opo -
: in the direction of absorbing the function
. of the executive department OF the state
This we submit should not be done unles
9 the case is such that the court is driven [
= such course by an unbroken chain of pre-
c cedence from which there is no escape,
I'VE have been unable to find any adjudI
= Gated case where the relator sought a
against the governor the relief sought 1
this case. The provision of our constttu
tlon defining the three departments of gov
ernment and denying to the members of on
department the right to exercise any OF tn
powers belonging to either Of the others,
i, a familiar provision and is found in tn
= constitution of nearly all, If not all, of tn
:. states of the union.''
e Cites Justice MarshaIPs Ruling,
10 Responding to the argument of the al
d, torney general, the relator, c. c. Wrigh
IN calls attention to the holding of Chief Jus
b. tice Marshall. which is: at is not by th
n ONCE of the person to whom the writ
3 directed, but the nature of the thing to
1t done, that the propriety or impropriety ,
1t issuing a mandate is to be determined.
d Mr. Wright contends that this rule has bee
N accepted by all tribunals, holding that II
of judicial department has jurisdiction owe
Of the chief executive to compel the perform
a | ,N
ID by legislative enactment He asserts tn,
le the governor is bound by law to appoi,
the commission and that It is not an a,
thority or duty placed upon him in tern
) or by implication under any constitution
provision. He says the authority to proyit
m a fire and police commission is a legislati,
authority and the power conferred is in
parted from the legislative department
the executive
Va Hearing in Equalization Case.
o. Hearing was begun this afternoon in Il
er case wherein William G.. Shriver al
OF George T. Morton are seeking to have Il
e. supreme court issue a writ Of mandam,
RS to compel the city council Of Omaha to :
s. as a Board OF Equalization and investiRa
p complaints against the assessment of co
st porations. The appearance was before d
main court. Judges Sullivan, Holcomb a,
d. Sedgwick taking part City ATTORNEY Co
1T, nell was present on behalf of the counc
ed He insisted that the complaints against ii
n assessment could not be heard again nj
to that to allow a peremptory writ of ma
he damus would be to require the councilm
Ia to violate the law.
les The argument Of City Attorney Conn,
or was mainly as outlined in The Bee n
ay morning
IT The argument today was mainly as
m whether certain portions Of the aftermath
OF writ shall be stricken out. decision
this part will probably be given tomorro
lily Action as to whether or not the ne
he emptOry writ shall be issued will ha 81,