Omaha daily bee., 1902-07-23

this was not a moot court. Abstract
questions OF law cannot be made the sub
feet of litigation. There must be real
parties. and they are res in dispute that
will become res judicata when the litiga-
tion is ended.
Matter I'm Moores Case.
'In the Moores case the thing in dts
pute was the once itself, and 1t was de-
termined tina. the intervenors were en-
titled to the ONCE for the term OF their
appointment, and respondents were ousted.
This is re iudicata, and In Kennedy against
Moores some OF the respondents were still
holding the terms adjudicated In the former
case. and the doctrine Of res Judicata was
applied. IN the determination OF a case
legal principles are invoked and the con-
clusion Of the court thereon announced.
Whether such conclusion shall be tollo"eu
without further Investigation in subsequent
litigation frequently depends upon tne
principles OF stare decisis. When sucn
conclusion becomes a rule OF properly II
IA adhered to until changed by statute.
but when no rule OF property Is estao-
1ished Il is the duty Of the court to re-
agAAUulut hnu ONNA - ~
when shown to be fundamentally wrong.
The thing determined by the litigation
becomes res judicata and cannot be AFTER
ward questioned between the parties, al
though the rule Of law by which the de-
,cision was controlled is afterward found 10
have been incorrectly applied, and such
application is no longer binding upon the
courts. The former Is res judicata and
the latter Is to be measured by the prin-
'ciples Of stare decisis.
'It being conceded that no legal APP
pointments have been made, and that there
are no legal incumbents OF the ONCE
and that the law requires the governor
to make the appointments, 1t is manifest
that he is not prevented from so doing by
any erroneous determination of certain
parties to a prior and different term.
Duty of the Governor.
eve conclude, therefore, thai 1t is now
the duty OF the respondents to appoint
a Board of Fire and Police Commissioners
for the city of Omaha under the statute in
Question. The majority of the court Is
satisfied with the decision In Redell against
Moores, supra. but as 1t lie not
questioned In this proceeding. the writer
has made no investigation Of the questions
therein discussed. In the former opinion in
this case II was said, whether the peremp-
tory writ should actually issue In a case OF
this kind is a question of great delicacy
and one which we do not here decide.
There has been no further discussion OF
that question by counsel and we do not feel
called upon now to determine or further
consider It. 1t is not to be supposed that
the peremptory writ will be necessary. The
judgment entered in this case is modified in
accordance with this opinion"
Judge Holcomb appends this: II am not
prepared to express an opinion different
from the one heretofore concurred in by
me-"
Governor savage Notified.
Private Secretary Clancy has notified
Governor Savage, who is now in Salt Lake
City of the decision of the supreme court
in the Omaha. Fire and Police Commission
case, and 1t is expected that he will hasten
back to Lincoln. Mr.. Clancy declined to
say what course the governor would pursue,
but intimated that he would make the APP
pointments soon after his arrival. Governor
Savage has already determined upon the
men for the board and II he sees his way
clear In the face Of this decision to make
the appointments he will probably lose no
time In giving them to the public.
The supreme court adjourned sine die at
s o'clock this afternoon, delivering the last
set of decisions until the September term.
Those in cases of interest to the state at
large or in Omaha sre: State against Bank
OF ogalalla, former judgment modified;
Dale against Council Bluffs Savings Bank.
reversed; First National Bank of David City
against Sargent. affirmed; Billers against
Yeiser, affirmed; Omaha Savings Bank
against Boonstra. reversed.