Omaha daily bee., 1903-05-01
Again Lays Down Law Of Sta e-0ontrolled
Government for Cities.
ovtRTuaNs DOCTRINE %, HoMs RULE
Police and Fire Department Subject to
Governors Boari
EXPLAINS DOCTRINE OF RES JUDlcATA
Questions of Law May BE opened or
Not, the Rule Depending on the
Matters Involved In
Litigation.
CFrom a stan correspondentO
AFFIRMS POWER OF THE LEGISLATURE

(From a STAFF Correspondent)
LINCOLN, Neb., April 3O.-(special Tele- /
gram D-At an adjourned meeting OF the |
supreme court today, the opinion in the
Omaha police board case was handed down. !
II is in favor of the present board. Judge
Holcomb wrote the opinion. The syllabus !
l. 1ne legislature may by statute confer |
ulun the so,ernor tne power TO app0iht
n. inhlfs oi the Doaru OF lire and police !
commissioners OF cities OF the meroppLtdn
Cta.s. ttedvu vs. MJores et al NeD', %
- 4 judgment rendered by a court OF
competent jurisdiction determining the
r. OF the ntigsnts on caGse OF ecti ~ !
81 ueiense Il an tmectual bar against lutur
Il. sauCA over the same righ1 det rml. 1
by sucn Judgment, ana IS Tor ali time, un-
less reversed or modincd, oindlng on me
pa ties and lheir pr,vies In estate or IN law
s. A "rght, question fact distincd|
N-pit m issue and directly determined " a
cour, OF competent Jurisdicuon as a grounI
. OF recovery cannot oe disputed IN suose-
qdent suit between the same parties or
Their privies, and this even though tie sec
oHd suit Is Tor dulcrent cause Of action.
L. 1he right. question or lact wh.ch Wnsn
put IN issue ana determined, to Diow the
subject of the rule OF res Judicata, must
a question or tact az distinguished from
an abstract proposition OF raw, and The de-
term nation must be with reference to such
Question OF fact and law. or a legal deduc-
tlUn arising from a state of tacts common
To buth actions; as. for example, decision
constrGing as a matter of law an agree
mcrt is binding between the parties and
tntir ,rivtes where the same instrument
rs urged as a ground oil recovery or oefense
iu a subsequent suit on a different cause of
action.
Subjects for Litigation.
s. Abstract questions of Jaw cannot be
made the subject OF litigation. There must
be real parties and a res iudicata in dispute
that viii brow res judicata when the iii
cation is determined, state ex rel Wright
VS.. Savage, Neb., 81 N. W. Rep, 557
8. In an action by proceedings in quo war
ranto to try title. 10 an ofhce the claim or
court Is asked, the subject matter Of the
controversy, IL the right to the ofhce for
the term in controversy and the action Is
office.
I. In such action there is no adjudication
or determination of official rights, duties
and powers of the person adjudged to be
entitled to the office, but solely an adJudi-
cation chis, ttghtsto bod the once for the
term III conroversy and perform It's func-
Such an adjudication determining the
right of a claimant TO an office for specl-
fed term does not determine the right OF a
successor to the office heading by appoint
ent term, nor is the successor with respect
20 the right to the office adtudicated In a
prior suit for different term deemed in
privity with his predecessor, nor is the
subject matter the same in the two suits,
0. lntervenors Peabody and O'Conners held
10 have not valid claim TO the office as
members OF the Board of Fire and Police
Commissioners foI the terms which are I'm
TO- Held, In the case at bar. that the re-
spondents, appontees Of the governor, are
Police Commissioners of the city of Omaha.
Judge HOIcomb's Reasoning.
Judge Holcomb, who wrote the opinion of
the court, says in the course of his reason
ing
n sented for consideration in the present ac-
NJ ton one being the alleged unconsitution-
Vahty of the act referred to, and the other
the question OF whether the rights Of the
parties herein are not 10 be controlled ana
rns 1siernee of re, gdieata @ n is INSISTED by rea
son OF the matters litigated and the JudS-
ments rendered In two of the cases hereto
fore decided, namely, Smyth against Moores
and Smyth against Kennedy, that the re-
spondents cannot now be heard to assert
are e tbs present incumbents. While the act
INas held unconstitutional In Smyth again q
II ssainat Moores the Moores case was over-
pNUled and the act held TO be within the con-
stitutional powers OF the legislature; The
the deliberate expression OF the court on
this branch of the litigation. and We ad-
II Il Insisted, II we understand counsel
Alright. that the judgment IN the Moores
cRse operates as a bar TO the assertion by
respondents of right to the office they are
now holding, and that because of this ad-
judication they are estoppsd from rom contend
by or against the same parties that We're
litigants in the two cases mentioned II Is
said by relators that while II may be true
in the Moores case that as between APP
pointees OF the mayor and the governor the
thing In litigation was the office itself am
the title thereof, yet nevertheless the right
TO the ONCE itself was not the only point OF
issue presented or determined; that the
question was also determined as 90 whether
the mayor or governor had the rtght and
power 70 appoint members OF the board
also that the act relating to cities OF the
metropolitan class. authorizing the appoint
ment by the governor was adtudgeo 10 be
nance under which the appointment was
made by the mayor was valid. The allega-
ton was that all these questions were put
IN issue by the pleadings and were deter
mined and nave become res iudicata, bind.
Ing alike on sll parties alike thereto.
Case on settled One Term.
The court heid In the Moores case thai
the legislature had exceeded its eOnstitu
tionaf powers In conferring upon the Cover
nor authority TO appoint such officer and
the Judgment entered went in favor Of tn,
appointees OF the mayor, the respondents
the appontees OF the governor being ouste.
from ONCE. The litigation was with re
spect to the title of the claimants to th'
ofhce as member of the board The thinl
actually decided was that the mayors ap
pointees were entitled to hold ONCE fOr tn,
term for which they were appointed. TIT
validity OF the ordinance and the right o
the mayor TO appoint We're dependent upol
the alleged uneonstitutionality of the ac
giving the governor the power to appoint
The main point involved was the power o
the legisls ture TO authorize he governor 4
MI the ONCE by appointment. In the cas-
at bar the subject matter at litigation wa
not the validity of the ordinance or tn
right OF the mayor TO appoint members o
the board The judgment was demande
on the right and title 70 the Office for tn
Al term for which the parties were appointed
\ aud as a reason for the demand II was al
leged that the act authorizing the governo
10 appoint was unconstitutional. and tn
citizens OF Omaha had the undeniable righ
20 select their own officers.
New Terms Not Involved.
II Is conceded by all parties in interes
that the terms OF Office Of each member
the title 10 which was under considerable
in both the Moores and Kennedy case
have now expired, and that all save one ha
expired al the time OF the commencement
~ the present action. Assuming then tina
the REALTORS claim OF right 10 the office b
appointment OF the mayor Is for dineren
term from the one In controversy. and ao
Indicated In the two prior action. WI
those judgments operate as bar agains
Continued on Fifth Page.)