Omaha daily bee., 1909-08-19
Nebraska
OPINION ON JUDICIARY LAW
Judge Rose Hands Down Decision
Declaring it Invalid.
JUDGE DEAN FILES A DISSENT
TSTority 81 court Finds Law BAD ON
Several Fundamental Points. and
DIssenter says IL f.
4 Good.

LINCOLN, Aug. tS-(SpecialD-The opin-
Con in the non-partisan judiciary case
which was decided some weeks ago. was
filed today In the supreme court. IT was
written by Judge w. B. Rose. with all the
court ooncurring except Judge Dean. who
dissents. and Chief Justice NJ. 3. Reese,
who was out Of the city when the case
was heard Judge Dean filed a dissenting
opinion.
The suit was started by John NJ. Raglan
Of Hastings, who brought proceedings in
the district court Of Lancaster for a man
damus to compel the secretary OF state to
put his name on the primary ballot as a
republican candidate for supreme judge.
The district court held the law unconsti-
t]utionsl and the decision was affirmed by
the supreme court in the opinion filed
today.
In holding void hat portion Of the pri-
mary law which made it illegal for a po-
litical convention to endorse candidates
or in any way ~criticise candidates for
school or judicial offices, Judge Rose said
Published criticisms Of candidates. Of
ficers and policies are potent factors in
the struggle for civic virtue and Canno
he suppressed by legislative enactment.
The privilege Of speaking and publishing
the truth with good motives and for jus
tifiable ends was not inserted in the bill
Of rights by accident. The doctrine that
the truth as to mans conduct is no iusti-
ficatiOn for publishing II in the press
originated In the star chamber and was
in high favor in that tribunal when print
ing became as effective means Of dis.
seminatinR what honest men said about
abuses Of official powt and the conduct
and policies of public men. The hostility
TO such a restriction OF free speech and
Of a free press resulted i'm the adoption
of section 8 Of the bill Of rights.
syllabus of Opinion.
The eviIahue of The nutDiOD is.
l. The legislative enactment in sections
I and 10, chapter SO. session laws of 1909,
that candidates for judicial and educational
offices shall not be nominated, endorsed.
recommended, censured. criticised or re-
ferred to in any manner by any political
party, or any political convention or pri-
mary, or at any primary election is a
violation Of section of the bill of rights.
declaring that every person may freely
speak. write and publish on all subjects
being responsible for the abuse Of that
liberty; and IN all trials for libel, both civil
and criminal, the truth when published
with good motives. and for justifiable ends
shall be a sufficient defense" and Of sec.
ton 70 OF the bill of rights, declaring thai
the right Of the people. p~eaceably, &c
assemble to consult for the common good
and TO petition the government, or any de
partment thereof. shall never be abridged d
? A political convention is an assembling,
within the meaning OF the constitutional
provision that the rights of the people tc
assemble to consult for the common gooC
shall never be abridged.
2. In prescribing q form Of official ballo
which limits the printed names OF Caudi
dates for judicial and educational office
TO nominees by petitions containing 900
names each and in depriving all electors CN
cept 60O in each county of the right TO tax,
part in nominating a particular candidate
chapter %, session laws of 1909, violates sec
tion % of the bill OF rights, declaring tina
all elections shall be free, and there shall
be no hindrance or impediment to the RICH
OF q qualified voter TO exercise the eleCtiy,
franchise" r.H. r.r.. -a...
T. Where Il appears on the face of a legia
lative act that an inducement for Its pas
sage was a void provision, the entire &C
falls.
5. Where valid and invalid parts Of
legislative act are so intermingled that the!
cannot be separated in such a manner a
10 leave an enforceable statute expressing
the legislative will, no part of the enact
ment can be enforced.
BASIS for Dissent,
In his dissenting opinion Judge Dea.
holds The nonpartisan judiciary law to b
but an expansion of the statewide primar
law. and tina it does not come within IN
inhibitory provisions of the Fundamental
laws that have been invoked to destroy IT,