Omaha daily bee., 1902-05-22
POLICE BOARD STAYS
Supreme Court Again Decide in Favor oi
Present Incumbents
JUDGMENT IN kooRES CASE FINAL
Matter Settled win Not Be Disturbed BY
Contrary Opinion.
GOVERNOR LIABLE TO MANDAmUs
Authority Of judicial Over Executive is
Firmly Asserted
LONG CONTINUED CONTROVERSY ENDED
Last Effort TO Destroy Home Rui,
Control of Fire and Police De-
partment Powers
Failure
tFrom a stan Correspondents

0rom Stah Correspondent
LINCOLN, May 21.-(special THE gu
preme court has denied the anni,o.t,on :,
y e Wright for a writ OF mandarin. -
compel the governor to appoint a Board Of
rHe ana Foiiee Commissioners for Omaha
W. quesuons were involved in this case.
One was the authority OF the supreme cour,
10 mandamus the governor. ana the o,n.-
was the right OF the governor 10 mato th.
appointments. The opinion wae wrIttsr h,,
ChleI justice Sullivan, Judges Holoomb ana
sedgwick concurrinE.
me court declares that it has the right
branch Of the government and tbs, =, -
regard the law makes no distinc,toD -.
! tween oficials. The writ is denisa ~.
ever, on the ground Of res adiudiea which
40 tnat question once determined m, A..
Judgment on Its merits is forever settied
IL was on this ground that Judge spTI,vsn
IN the Kennedy case, adhered to the dsc,.'
ION IN the Noores case, from which he haa
| originally dissented.
Doctrine of the Case.
The syllabus of the opinion ia.
| iudinia Ileht e OF the courts to determine all
| Is Siyarq q1esuons' whenever and however.
| ts-sN Ven py the constitution In explicit
| terns and Is indisputable P'S4s
,55S, Iut equally clear and incontestable Is the
! constifi,,inr s1eCuuVs - o1cers named in the
/ bsionstr.Io er.Ion 10 exercise all powers properly
| "1SIonging 70 the executive department
lee Syi lsloeTlng the matter Theoretically and
! .sgGaNIhs practical results and past adii,dics
lions entirely out OF view. * wa5Sd 9asr.
IA tiar I, sne iarthest limit OF judicial authority
~ ~ !niaanoamus proceedings against oficers
% o. the executive department Is TO hear ana
eeternn Inlnei TO give judgment but not 10
| ENFORCE II by coercive process "
Ihe principle of exemption from nen-
| damus is grounded upon a distinct constt
seeton II 11n6l1on sn6 Ion Constitution article II.
ot1cial rank; Whether the rlSht ar upon upon
eeamus gam should be granted or refu 5ed has
oy this court upon the character Of tbs
sbns he rs.9o, 10esiion and not upon the once Of
The theory that the judiciarv. IN tss,,nv
! ernsni niahiuatnns az 70 member of the executive
55iiahsh 5irsc,5, oI ne govern fnent. is hereby in
! uon, exercising power properly belonEise
| 70 dne executive department has been re-
| SeSisio1s ny TINS court in long line or
The established doctrine In this state ,s
! upon the sa,,H4 Jaw IN positive terms en1olns
| executive department a mere n1iniStar.isI
IN my ynr1 ieaVlng him no choice or discretion
| exercise as TO whether he will or will mt
| HHctLthe writ OF mandamus may issue ana
| iudinisI Te noy,or L an appropriate exercise OF
The doctrine of res judicata is that a
on the merits is forever setfle5 ~ nent NJ
the htlgants and those in privfty with them
aiS k, concerned The question decided Isl
| closed 6i,ast1a, peSisioh STANDS sealed and
-, 4 public officer is REGARDED as being in
| rive their authority fr the same soi,rcs
a judgment against , bic oficer IN re
once. " N1'''' 'eN'S Oiios ms successor In
All litigants are affected by the rule OF
upon Ihe t9ibng nm SdJndgsd i s equally binding
uPOn the sovereign ana citizen.
Text of the Opinion.
The npgpsop T,auk
as follows:
This is an application to this court an
the exercise OF its original Jurisdiction for
writ Of mandamus commanding the re-
spondent, as governor Of the state 10 an
point fire and police commissioners for the
city OF Omaha. In his answer TO the al
Tentative writ the respondent denies the
authority OF the court to eoerce executive
action in any case and alleges that by rea.
son OF the judgment IN the State asainst
Moores (55 Nebraska, 4s0) the performance
OF the duty enjoined by the statute womb
be necessarily barren Of practical results.
II is conceded that the statute directs the
governor in imperative terms Just what the
relator has requested him to do. 'Imme-
diately upon the taking effect OF this act
the governor shall appoint This is the
language OF section l67 and II Is therein
further provided that whenever a vacancy
shall occur in any board of FIRE and pollce
commissioners, either by death resignation.
removal from the city or any other cause.
the governor shall appoint a commissioner
to I'll such vacancy
1T Is also conceded that this IA a eons,l-
tutional and valid law, but II Is claimed
that authority to enforce II has not beeu
committed TO the judicial branch OF the
government. The argument is that the
three departments into which ali govern
mental powers are divided are coordinate
that each is entirely Independent of the
others and that the issuance OF a man
damus against the governor. In whom IL
invested the supreme executive power, is
tustifable only on the theory that the en-.
ecutive department is inferior to the Judi
eial department and that the right OF COM
mRnd Is given TO one and the duty OF
obedience imposed upon the other This
argument il certainly plausible, but
whether II is sound IL a point upon which
the adjudged cases are in irreconcilabls
conflict
Rights of the Court.
The right Of the courts to determine All
judicial questions. Whenever and howeve.
they may arise. Is given by the eonstftu-
tion In explicit terms and is indisputable
but equally clear and incontestabIe ts the
right Of the executive oficers named in the
constitution TO exercise all powers property
belonging to the executive department
There Is an obvious logical difhculty N
maintaining that two departments OF GOV
ernment are Of equal rank and indspendeht
OF each other, II one may command ana
the other must obey. member OF the ex-
ecutive department who performs an ON
eial duty in obedience TO a writ OF man
damus is passive instrument In the handg
OF the court he is not in any proper sense
an actor; be executes. not his own purpose,
but purpose originating In the judicial
department Of the government; he IL IN
truth nothing more than the agency
through which the court exercises an sx-
seutive power Considering the matter
theoretically and leaving practical RESULT
and past adjudications entirely out of viev