Omaha daily bee., 1909-08-07
Alberts for the
New Banking Law
Attorney for the State Files His Brief
with the Federal Court at
Lincoln.
Trom a staff correspondent.l

$3.50
LINCOLN, Aug. 6~-(Special .)Judge L Z.
Albert, attorney for the state in the de-
Tense of the banking law enacted by the
late democratic legislature, has filed in
the federal court his brief in reply to the
brief of John 1. Webster and William V.
Allen. It is believed an early decision will
Cbe handed down.
In discussing the right OF the state to
limit the banking business to incorpora-
lions and me right to issue notes for cir
puIation, Judge Albert said:
Counsel concede that the right to issue
such paper is no longer a common law
the citizen, but one that rests on grant
from the state. Now we b" nready
shown that it is one o. zdcidentsl
gage IN banking generally; that II is SO
essentially a part Of banking that an IN
stitution without the power to issue such
judicial notice OF the fact that there is
nothing in the federal constitution which
prohibits the issuance of such paper and
that It is prohibited by no act of congress.
1 II II be true, then, as counsel concede, that
the right TO issue such paper must rest on
a grant from the state, and, that the right
to engage In banking generally carries
with II the right to Issue such paper, does
IL not follow that the right to engage IN
banking generally is no longer a common
law right, but one lawfully exercisable
only under a franchise from the stateE
Does IL not also follow that the leRlslAs
tive act under consideration, which deals
with banking generally, is TO be regarded
as one designed, not to regulate the exer-
else Of a common law right. but to Fix
the terms and conditions upon which a
franchise may be obtained and enjoyed?
In a discussion of the guaranty provisions
of the law, Judge Albert takes a little elbow
punch at counsel on the other side. He
said:
We come now to the guaranty feature OF
NhA laug lHpttngal call aiIRntiOn to the
brevity of our argument on this branch OF
the case. SpeakIng for himself, the writer
would say that one of his excuses is that
his argument was prepared exclusively for
this cou.., and not for distribution among
laymen, For that reason he assumed that
elementary principles, matters or history
and Of common knowledge would be noticed
without an elaborate rgument or citation
OF authorities. For like reason he refraine'l
from any attempt to answer the arguments
BASED on the Dartmouth college case, never
doubling that the court would take judicial
notice of our constitutional provisions which
render them wholly inapplicable. Another
and stronger reason influenced him IN TINS
respect, and that is, that when he felt that
he had SHOWN that the right to do a general
: banking business is no longer a common
right, but a right dependant on a grant
from the state. the validity Of the guaranty
established that proposition. The validity
of his conclusion can be tested by any
standard history OF banking.
In conclusion the brief said;
In conclusion, let IL be said that the
right OF the state to restrict the right to
engage in banking Ia, corporations Ia sus-
"a ned by the decided weight OF author
ttS that the only direct adjudication on
the guaranty feature of the law is that
order 10 override the will of the people,
as expressed by this act, the court must
not only hold against the presumption or
I. regularity which attends the acts of a
coordinate branch OF the government,
but against the clear weight OF direct
AnNhnFitV That IL a FaEnOnE1hilIV which
is generally assumed only by a court of
last resort.