Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1902-07-23
Holds that Governors Duty is to Appoint
New Commission.
MATTER SETTLED is TITLE TO OFFICE
Res Judicata Does Not Apply to Abstract
Principle Of Law.
JUDGE sEDGwlcK WRITES THE OPINION
Argues that Former Cases Are Not
Disturbed by Present DeciaiOn
Further Than to Modify
the order,
CFrom a Stan Correspondent

another opinion in the Omaha Fire and
Police commission case, this time modify
Ing the Judgment recently pronounced in
the case Of Redell against Moores. Il Ia
now held to be the duty OF the governor
to appoint Board OF Fire and Police Com
missioners for Omaha. The syllabus and
text Of the opinion, which were written by
Judge Sedgwick, follow:
Abstract questions Of law cannot be made
the subject OF litigation. There must be
real parties and a res in dispute that will
become res 1udicata when the litigation is
determined.
The former determination OF this court
that certain parties were entitled to hold
the office of fire and police commissioners
OF the city of Omaha, under the appoint
is not binding on the governor so as to
prevent his appointment of commissioners
under irn the provisions OF the act for the
Inc right OF the parties in that litigation
TO the term in dispute therein is res Judi
cata, but the principle Of law announced,
having been found erroneous and overruled'
will not be followed
Text of the Opinion.
The opinion follows:
After the former opinion in this case the
relator filed what is by him denominated
a motion for a new trial. This being an
original action In this court, relator as-
sumed that he was entitled to use this
form of motion. After argument the court
announced to the parties that the motion
would be treated as a motion for a rehear-
ing under rule and not as a motion for
new trial
The reason for this view is that a new
trial Is a reconsideration of an issue of
fact (code, section 314, and In this case
no evidence was taken and no issue Of fact
presented, the sole Office of the motion Ia
to point out errors in the former opinion
Of the court. This is the province of a mo-
tion for rehearing. The court, after arsu-
ment, being desrous of further considering
the questions presented, both parties were
allowed time to file further briefs and the
case was submitted as upon argument
after rehearing is allowed
The power of the legislature TO imnose
upon the governor the duty Of appointing
the Board Of Fire and Police Commis-
sioners for the city of Omaha was de-
clared in Redell vs. Moores, 16 Neb., over
ruling State VS.. Moores. This question had
not been discussed in the present pro-
ceeding, both parties regarding the matter
as settled. Upon the former hearing there
was much discussion upon the question
whether the general rule as to the conclu-
siveness OF judgments can be applied to
sovereign states while acting in govern
mental capacity, and in the opinion, State
VS.. Savage. It is said:
The state in the exercise of its governs
mental functions is not obliged to invoke
1t does So 1t assumes the character OF an
ordinary suitor and is bound by self
imposed restraints. 1t claims no advantage
sovereign and the other a citizen thev
stand equal before the law.
Doctrine of Res Judicata.
Upon the present hearing the application
OF the rule in this case has been much dis
cussed. The doctrine of res judicata re-
quires that when thing is determined by
court Of competent Jurisdiction the parties
to that litigation shall not be allowed in
any other cause to retry the matter. The
rule is Of universal application. No proper
party to litigation. whether sovereign or
subject, is exempt from its control. To ap-
ply the rule II is necessary first to ascer-
tain what issues were determined In the
former litigation. 1t is said by respondents
attorney in their brief:
In the Moores case the parties based
their respective claims wholly upon the
There was no common source; they came
through entirely different sources While
the immediate question was the right to
the officers for limited term, a determi-
nation of that question necessarily in
volved a determination as 10 the location
OF the appointing power. determination
and unavoidable. A decision Of tRe case
could not be reached without first deciding
that question. When that was determined
the whole case was determined That WAS
the only question debated or reoited IN
whom was the appointing power7 In the
only question submitted to the court ana
the only question argued or decided.
Point in Former Gases.
"This is q very plausible statement of a
point insisted upon. but is Il entirely
soundH II was undoubtedly necessary 10
determine the location Of the appointing
power. but was that the thing (res) in
litigation. the substantive matter that the
respective parties were eontendinR for. or
was II a proposition OF law called In 10
assist in determining the right Of the re-
spective parties to the thing In contro-
versyf That action was begun on the re-
latton Of the attorney general against j.
H. Peabody ct al. who were appointed by
the governor. They answered, setting up
their appointments as members OF the
Board OF Fire and Police Commissioners
for tho city OF Omaha. Peter W. BirL-
hauser ct al, upon their application, were
allowed. to intervene. setting up their right
to the once by virtue of an appointment
from the mayor and council OF the city.
Each party demurred to the plsadinEs OF
the other and the question presented was,
which party under the law 10 entitled to
hold the once, the respondents for the
term for which they had been appointed
by the governor. or the interyenors for
the term for which they had been ap-
pointed by the mayor and couneilf The
object Of the attorney general undoubtedly
was to obtain from this court q construo-
tion OF the law-that is. to ascertain
whether under the law the governor should
appoint, or the duty deYolved upon the