Omaha daily bee., 1902-05-22

and Determine. ia give Judgment establish
ing the realtors right without issuing
compulsory process 10 the respondent,
Thether he be the chief magistrate or some
other Uenber Of the executive department.
THEE seems TO be no good reason for hold
ing that one member OF a coordinate
Yhsanch OF the government should be ex-
Smpt from judicial control and the others
subject to II. The principle Of exemption
from mandamus is grounded on a distinct
constitutional inhibition and does not at all
depend upon oficial rank.
''our own decisions make no distinctions
between the governor and the other officers
Of the executive department; whether the
writ should be granted or refused has been
made In every case to depend upon the
character OF the acting question and not
upon the once Of the respondent The ar
gumeht that the judiciary in issuing a man
damus against a member Of the executive
branch Of the government is thereby in
directly and In violation Of the constitu-
ton, exercising a power belonging to the
executive department, has never appealed
convincingly to this court. In numerous
cases the writ has gone against the auditor.
and the right to- issue Il to any officer OF
the executive department, including the
governor. is so thoroughly established by
repeated decisions that the question can be
NO longer regarded as open for discussion.
Time TO Fad II.
'AIl judicial controversies must end
sometime and this one seems to have run
Its course. 1t must be admitted that, ae-
cording to the clear weight of authority.
khe chief executive cannot under any cir
cumstAnces be controlled by the writ OF
mandafnus, but In this state and In some
other Jurisdictions a different rule prevails.
The Doctrine Of this court Is that when a
law fn positive termB. epjoins upon the
governor or any other OF the executive de-
partment a mere ministerial duty, leaving
no choice OF discretion In regard to the
matter-no Judgment 10 exercise as to
whether he Will or will not act-the writ
of mandamus may issue and its issuance
10 an appropriate exercise Of judicial power.
I'm the stete against Thayer (S1 Me-
braska, so a mandamus was issued against
the governor and other executive officers,
constituting the State Board OF Canvassers,
commanding them. to canvass the votes cast
for the relator as a candidate for Judge OF
the Sixth judicial district.
al. seems to be conceded that the re-
lator has 4 suf1cient interest in the per-
iformanee. OF the particular duty e~njoined by
the statute TO entitle him to maintain this
proceeding II the court has jurisdiction to
maintain II. And II 10 evident that the re-
fusaI ofsthe governor TO discharge the duty
Of appointing are aud police commissioner
for Omaha was not Influenced In any degree
by the character or quality Of the act which
the law in imperative terms directs him to
perform. In other words, the position taken
by the respondent Is not defended on the
ground that the appointment OF commits
sioners would not be the performance of a
ministerial duty. The defense rests upon
broader grounds. 1t is that there is no
authority in the court to coerce the gov
ernor in any case or under any circum-
stances to exercise an executive power.
trhe conclusion to which we are COM
PEELED by our own decisions is that we have
not only Jurisdiction. to decide the contro-
versy, but authority TO issue the peremptory
writ to enforce our decision. Whether the
peremptory writ should actually issue in a
case OF this kind Is a question of great
delicacy and one which we do not here
decide. "
Judgment is Final.
The second proposition discussed b.
counsel was decided In the Kennedy cas'
and was, we think. decided rightly. Thu
doctrine Of res judicata is that a question
once determined by q Judgment on the ner
it's 10 forever settled, so far as the litiganti
and those In pTiyity with them are con.
cerned. The question decided is, while thu
decision stands, a.sealed and closed ques
tion, the Anal judgment. sentence or de-
cree, fixing the rights of the parties, endI
the controversy and is in any future litiga
tion conclusive evidence Of those rights
Counsel for the reiator concede the genera
rule as to the conolueiyeness of judgments
but insist that ~ has no application to
case In which q sovereign state is seeking
to enforce obedience to Its laws, In otheI
words. counsel contend that the state, "
ing vested With absolute power to govern
society. and having supreme authority u
make and administer laws, is not bound b!
an adverse Adjudication in a matter per
tanning to its sovereignty. The Fundamental
conception Of a Judgment is a judicial de
Hision binding upon all the parties to tn
controversy, AZ defined BY our own stat
utes. It is the nnal determination OF tn
rights Of the parties In an action B,
this statute the state mas declared the lega
effect aud consequence Of a Judgment; 1
has said that. as between the parties, tn
judgment ehall end the controversy and en-
it forever. The state in the exercise OF II
governmental functions is not obliged to In
woke. the aid Of the courts in any case, bu
when It. does so II assumes the characte
Of an ordinary sutton and Is bound by self
imposed restraints; 1t claims no advantag
over Its adversary. and. though one Is
sovereign and the other a citizen, the
stand equal before the law. This Is a Jus
principle and init we see no serious DANCE
to the public veal. Il was recognized an
enforced In England without judicial dis
sent a. far. back as the duchess OF King
ston's case. And In the highest court q
this country Il Il early held by unanlmou
opinion Of the judges that the governmer