Omaha daily bee., 1903-06-04

and Brands commission. so declared the |
supreme court today. The court held. how |
ever, that Starrett a clerk in Porter's |
office, also a member of the commission |
was entitled to all the money he received |
The court released Porter's bondsmen from
liability. The title Of the case was The |
State of Nebraska against William F. |
Porter, Mary Rowden, David c. Rowden |
William L. Hardy, Virgil o. Strickler, John |
w. Sparks, Isaac b. Tarver, Thomas c. /
Morgan, Theodore Mahn and James N
Gdfhn.
The syllabus of Case.
Chapter |. session laws of 1899, enti- |
tled an act creating state registry of !
brands ana marks, a state brand and mark |
committee, providing for brands and marks
upon live stock, and repeating chapter II !
OF the compiled states oil 1891, was in con- !
fiict with the constitution and wholly void. |
1t was not the intention of the legisla
ture, by section of chapter /, aforesaid,
to create a new office to be filled by the
secretary of state; but the provision in said
section authorizing the governor TO APP
point three persons to act as members Of
a brand and mark committee was an abor-
tive attempt to add to the number OF eN-.
ecutive state officers created by the con-
stitution.
The legislature intended that the secre-
retary of state should retain for his services
a member Of the brand and mark COM
mittee 20 per cent OF all the fees received
for recording brands and marks
for recording brands and marks under the
provisions OF the act of 1899 was not re-
ceived by virtue OF his office, but under
The sureties on Official bonds do not un-
dertake to answer for acts done by the
principal under color of his office, but only
for acts done by virtue of his office.
The state has no legal title to any part
of the fees received by the secretary OF
state for recording brands and marks un-
der the provisions of the act of 1899; but
that officer having, in collecting such fees,
assumed to act IN an ON 0cia & 6aPacfiiyd iisd the ne
account by the state, to deny that ne so
acted.
A general demurrer admits the truth OF
all material facts well pleaded, but dies
not admit conclusions of law.
.ofical misconduct is not established by
by a public officer for the very purpose the
legislature and the owners Of the funds In
tended they should be used.
The judgment Of the coIct in flavor OF
the surities is affirmed but the Judgment
in favor of Mr.. Porter is reversed.
Open Law of the Court.
Chief Justice Sullivan wrote the opinion
Judge Sedgwick concurring in separate
opinion. Chief Justice Sullivan says in his
opinion:
The case was submitted I'm this court on
| the theory that the act of 1893 was a valid
! law, but this theory we cannot accept It
was not valid; in whatever light II is viewed
it clashed with the constitution; there was
/
| beginning to the end it was absolutely and
| utterly null.
! lature did attempt by the act of 1899 to add
| to the number of executive officers created
J by the constitution, there is, we think in
/ the act itself clear and unmistakable evil
! dence that the legislative purpose was to
| impose new duties on the secretary of state
/ and not to create for him a new office.
| Thus far II has not been found necessary
| in this state to provide for the filling of
| remuneratiye offices by conscription. When
| 10 ta hon hf hat hn Of ma
! ticular individual are indispensable to the
/ public his friends may appeal to his
| fsting laws coerce him. Acceptance of office
\ by taking the constitutional oath is, THd in
its very nature must be voluntary act.
| Porter having no authority in any case
| to receive fees paid to him for services rem
| dered as secretary of state, and the fees in
! question having been paid and received for
| the use and benefit Of the brand and marx
! committee and not for the use or benefit of
the state, it is entirely. clear under the
| defendant sureties are not liable and that
the Judgment in their favor is right
e oRe Rsgds n BY vrge uf of hs e
| under color of his office; he had no legal
right to receive it, as secretary Of state
terms of his official bond, Besides the
! sureties have done nothing to preclude
truth is that the state had no legal title
40 any part of the fees received under
the provisions Of the act of 1889
Why Porter II Held.
But while the state is not entitled to a
Judgment against the sureties. its claim
! ing In receiving the money which the
state is now seeking to recover Porter as
! sumed to act in an official capacity; by
his conduct he asserted that he was OK
/ ercising a power derived from the state,
and this assertion he cannot now repudiate;
considered having been received lor
! services rendered by him as secretary of
must account for them. The Judgment in
! favor of the sureties Is affirmed but the
'uTSSn claim that the state is entitled to
recover the sum of $595.05 paid to $. r.
Starrett for keeping the records OF the
brand and mark committee is grounded on
the fact that Starrett was a clerk in the
office Of secretary of state and was re-
sgtI," sgcb Clerk a salary Of siOO per month As
a clerk in the office of secretary OF state
starrett was not eat1ied is 70 b,eS e6tra a com com
temptation of the Legislature were within
the scope OF his employment But very
tbe records of the brand and mark COM
cords he earned the money which he re-
ceiVed and is entitled 10 IL
Decision on Tax Case.
The supreme court has adhered to its
former decision in the case Of Logan County
AGAINST Carnahan This was on a rehear-
ing. The decision was written by Judge
Holcomb and the former one by Chief JUS
tice Sullivan. In the former opinion II IL
held that a county cannot maintain an ac-
ton for the closure OF tax lien unless
based upon an antecedent tax sale certih-
cate or tax deed. and the petition in this
case. failing TO show there had been issued
, a tax sale certificate for delinquent taxes
was deemed defective In substance, and
therefore a general demurrer interposed tC
the petition praying for foreclosure of the
tax lien should have been sustained.
Amrms Omaha Cases.
The supreme court has affirmed the de.
cisions OF the lower court in two tax cases
entitled The Omaha Savings Bank, Ap.
pellant, and John H. Caulheld against the
city OF Omaha. Appellee" and "'Th'
Eauitable Trust Company, Appellant
r against the City Of Omaha, Appellee"
7 The lower court dismissed injunction
t suits instituted TO prevent the city from
! collecting special assessments and the su
% preme court afirms these decisions Tn,
. syllabus in the Omaha Savings bank cas-,
is as follows:
4 While a purchaser at an execution sa',
> takes the real interest OF the debtor, ant
Is not necessarily concluded by the ap
. praisement. yet where the amount or tai
G lien, which has nci been mentioned or in
= cluded In the deCSee, has been deducte,
] from the gross appraised value OF the prom