The independent., 1903-10-15
Character Sketch of the Man
rs Shown by the Records.
- = By G. J. SMYTH y =

Juu6c Ildfil lSOu pldCCu ulo toiC III
reversal upon a very immaterial
ground. The action Of Judges Harri-
son and Norval is generally regarded
as a. dodge. Judge Sullivan never
lodges.
When the case went back to the dis
trict court Judge Baker, true to his
friends, the Omaha National bank and
Senator Millard, affected to misunder-
stand the order OF reversal and in
stead of granting new trial to the
state entered up another judgment in
favor of the bank. The supreme court
was applied to for writ OF mandamuS
to compel the judge to obey its man
date. Again Judge Sullivan wrote the
opinion of the court in which he
showed his utter reArlessness Of the
great influences which stood behind
the bank. Speaking of Judge Bakers
action in rendering judgment against
the state. he said:
In rendering judgment on the
verdict which had been discredited
and condemned the district court
failed to execute the mandate of this
court, it becomes our duty to en-
force obedience by mandamus (p.
1851 -. In disregarding our deci-
sion and dealing with the verdict as
valid and binding on the parties,
the lower court violated an implied
command which was clear, definite,
certain and Ineligible, as though
it had been formally expressed in
precise terms. A peremptory writ
will issue directing the district court
of Douglas county forthwith to va
cate the judgment rendered by it in
favor Of the defendants, the Omaha
National Bank and ]. H. Millard,
and to forthwith award new trial
of the action" Up. 236.)
This was the language Of the fear
less judge who was not fhduffing or
caring Who the losing party was.
Judge Norval, of course, dissented.
This case came before the supreme
court again. 1t is reported in the 9S
N. w. 334. The court, relieves Senator
Millard and the bank, but in order to
dc it it was necessary to overrule prior
decisions. disregard principles as old
as the hills, and to create new Tule
with respect to embezzlement of pub
lie funds. Many lawyers of different
political faiths re yarded this decision
as one of the dark spots in the judi
cial history OF Nebraska, but Judge
Sullivan contributed nothing to it. On
lie contrary, he stood like an oak for
what he conceived to be right. His
dissenting opinion is marvel OF clear
ness of expression.
Speaking Of the action of the bank
and Millard lie used this language:
Surely defendants cannot, with
any show of reason, insist tnat the
unauthorized payment of the war
rant, the wrongful act which they
themselves obeyed and participated
in, operated as a practical enlarge
ment of the treasurer's authority. AS
well might a parricide ground an
appeal for compassion or clemency
on the fact that he was an orphan.
Bartley's real authority was to dis
burse the public funds upon valid
warrants and not otherwise He
had no semblance of authority to
pay an invalid warrant and yet this
is precisely what he did He not
only paid out the states money up-
on warrant which proclaimed its
own illegitimacy, but he paid 1t out
directly to the defendants, the hold
ers of the warrant. How they could
be legally innocent in receiving
money which they knew belonged
to the state, and which was turned
over to them without the actual or
apparent consent of the state, is
something which l have never been
quite able to understand"
Neither have the people. But the
state lost the money. Had the bench
been composed of Sullivans the state
would have won. and the taxpayers
would have received their own.
In the case of State vs. c., r. l. &
Pacific, 81 Neb. 545, the question was
presented as to whether or not the
federal court could restrain the state
from suing in its own courts. Attor-
ney General Prout thought it could
and consequently asked the court to
dismiss case pending in behalf Of
the State VS.. tho r. l. road on the
ground that the state was enjoined by
the federal court from prosecuting the
case. The supreme court refused to do