Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1905-10-03
GATHERS LOSES HIS CASE
Fails 70 Make Claim Stick Against Mayor
and Council.
JUDGE SEARS HANDS DOWN OPINION
seIf-ProcIaimed RefOrmer VIII APP
peal Suit Against Payment of
Money for City Laborers
Last Year.

John T. Gathers, the self-appolnted watch
dog OF the city treasury, has lost out in his
EFFORTS 20 compel Mayor Moores and the
members Of the city council to refund to
the city some Sl5,oO0 which they had or
dered paid to a number of employees OF the
city in April and May Of 1908 Gathers
claimed that the list of employees had not
been selected by the Board Of Public
Works, defunct, as specified in the city
ordinance. and that they were employed
merely for political reasons by the mayor.
In his opinion in the case which he
handed down Monday morning, Judge
Sears OF the district court said Gathers
had failed TO prove mercenary or corrupt
motives for the employment OF the men.
He held also that the charter was vio-
lated by the manner in which the employees
were selected. but, as the city had secured
the services OF the men and their services
we're necessary. he dismissed the relief
prayed for by Gathers at the cost OF the
plaintiff. II is understood the case will be
appealed
Text of the Opinion.
The opinion Of Judge Sears in full fol-
lows:
1. That the laborers whose employment
/ Is complained Of by relator we're employed,
/ y
April and May, 1908, by the city engineer
In the same manner as they had been EN-
{sa ebar wqreeS gr Sn the s6
bases his action, and without due regard
TO- the said charter requirements.
2 There was seeming disregard for
those charter requirements, on the part
| Of the Board of Public Works on whose
iRtiatiye the employment depended that
bers except Westberg, although It may
have been partially due to the adoption OF
fetent from rom the re past mode known 70 the the
citys affairs. The fact remains, that al
tth4Hgh the the, city,s charter terms are man nan.
obeyed by those charged with their obedi-
| ence, and the further fact Of repeated de-
| mands for compliance were made by
Westberg. still nothing was done TO COM
| ply with the charter requirements during
the time of the employment complained OF,
legal employment in the premises.
In the opinion of the court the laborers
! in question never we're legally in the en-
! ployment of the city, and their employ
ment in their several capacities as had,
/ was contrary to the mandatory provisions
! of the charter, which says that unless such
| employees are contracted with according to
| the prescribed forms and requirements,
| there shall be no employment, and there
| shall be no compensation to unauthorized
employees, even for work performed.
2h, On the points of the laborers their
| A. That only about the average number
of laborers was employed as compared
B. That they rendered efficient service
in the usual and ordinary status Of laborers
in their several capacities, and
necessary to the city, and to the health
convenience and welfare thereof
II wf fSa be 10 ae pTSeF as ia
| question, had not been complied with
After the allowance Of the bills, It. the
fact of allowance, was personally known to
the relator, in time for an appeal, but none
was taken, and the time for tax payers
appeal expired without action. / take II
FOR granted without further investigation,
that the appeal in such cases Is from the
allowance, and not from the ordering of
No application was made to the courts to
require Of the officers charged with the
sneT Ties n M
was remedy, immediate In its nature and
of ample avail. ~ NO -,
with the charter dutySof the Initial steps OF
employment. The initial steps are upon the
mony / conclude that the allowance OF the
pay roll was considered by the mayor and
council as reverting back TO the time when
approval of appointment and liking the
compensation should have been duty had.
"A In my opinion many of the steps lead
nlngs were hurried through with a view OF
opinion those who took such steps believed
that they were paying claims that lacked
the charter requirements of full legality.
8. The fact Of the claimants not having
:. KBTlneQ
this proceeding cannot be considered as
6. Under these conditions should the man.
date OF the court require respondents to
make good to the city treasury the mount
of its depletion by reason OF the allowance
Of the April and May pay rolls in question:
While the equitable arm of the court is
ample in the premises and the form OF the
action is IN harmony with the end had in
view by the relator, still, as stated during
the conduct of the trial, 1t would only he
as a last resort, when could find no cx-
cyse for not, so doing. that would require
good the amount of the allowance IN salts
faction OF the labor claims in question,
when the city has had its full benefit in
the labor performed, and no mercenary or
corrupt motiye is proved TO have actuated
them, and when as to all these defendants
tions of the various places in the city serv-
ice and had not employed or controlled the
laborers In question themselves.
While I have no doubt but that equity
may be resorted to with effect TO compel
the making good of a treasury fund de-
geeS Sy ths tST sbSpRa SG ~ OF
cised unless the wrong is one against cen
science. of duty as well as against he let
Here II the list Of employees had been sent
| to the mayor and council by the Board Of
| Public Works on the second day of April
| pensation fixed as was finally allowed, then
| the same services would have been per-
formed by the same men as are known TO
| the record now and IL would have met the
full requirement of the law. II the list had
been so submitted II would have been un-
doubleday approved. Mandamus would have
the charter provisions IL seasonably in
voked
good faith or injury to the city that will
| admit the equitable order prayed for.
The ruling prayed for Is denied and the
petition OF the plaintih dismissed.