Omaha daily bee., 1909-02-02
Runs Afoul of Long Standing Rule of
the Supreme Court.
DEAN NOW HOLDING THE EDGE
Must Waive Rights in Order to Per-
nit Oldham to File.
OF THE PETITION
Legislature and Not Board
of CRnNRssers Has Authority to
Canvass Vote and ShcIdon's
Appointments Illegal.
CFrom a staff Correspondent

CFrom a staff Corrcspondent)
LINCOLN, Neb., Feb. 1,-Cspocial Teic-
gram.)-Joel ~ West OF Omaha i'm behalf
of w. ID. Oldham, Governor Shalcnbergcr
latest appointee supreme Judge this
afternoon filed a request with the supreme
court for permission TO begin quo warranto
proceedings to oust Judge Dean and seat
his client
The supreme court took the request under
consideration.
The reason for the court taking the
question under advisement is the practice
of the court heretofore in permitting the
| filing Of quo warranto proceedings directly
in the supreme court only when the action
| is taken by the attorney general 1t has
| been the practice in all except these cases
to require the original filing in the dis
trict court Oldham filed with the supreme
court a waiver of his right to hearing
| in the district court and Judge Dean was
also asked to do He has this matter
| under consideration, but has not indicated
when he will return am answer.
| Inasmuch as the case involves the su-
| preme court, it would seem rather peculiar
for district court to assume jurisdiction.
The suit which Mr.. West will file if
| the court grants him its permission is
entitled Oldham VS.. Dean, and the petition
asserts the state board OF canvassers acted
without authority when It canvassed the
vote on the supreme iudgeship. 1t contends
the legislature has the sole right to con-
vass the vote and that therefore Governor
Sheldon's appointees without right to
the office. 1t also asserts the law OF
1877 giving the legislature the right to can
vass was never repealed. In conclusion it
asks that Judge Dean be ousted and Old
! ham seated.
The action of the supreme court In taking
the application under consideration is taken
to mean the application is not considered
mere formality.
| Text of the Petition.
| Following is the text of the petition:
| The relator, however shows TO the court
that the said board of canvassers lin can
vassing the vote on the said constitutional
amendments acted unlawfully end without
authority and that their acts with respect
! the vote were utterly void and with M
| effect, for that secvtion of chapter oi
| the compiled statutes OF Nebraska OF 1881
! as enacted in 1871 expressed provided:
! Public notice that the proposed amendment
| or amenments is, or are to be voted upon
shall be given in each county I'm the same
manner as is may be required by law
regulating general elections, and the re-
| turns shall be made and the books can
vassed in the same manner and by the
| same officers is or may be required by
law in the case of electing the executive
| officers of the state"
While II is true there was contained IN
| the compiled statute of Nebraska of 1896
| which purports to be a law enacted by
! the legislature of 1895, whereby It, the law
| of 1877 above referred to, Durports to have
been repealed. and by which act of 1895,
! tn power to right to canvass upon The con
| stitutional amendments purports to be con-
| ferred upon\the state board of canvassers.
yet in that behalf the relator shows to the
| court that the said act of 1895 never was
| in fact legally and consttutonally adopted
because of the following defects and ouis-
| sons, towit
The bill for said act OF 1895 originated in
and was passed by the senate as an act
! entitled "An act to amend section 4 of
chapter\3 of the compiled statutes of Mel
! braska" and as so passed by the senate
| contained no words or language whatever
| repeating purporting to repeal or at
| tempting to repeal said section so at
! tempted to be amended by said act. and
was thereupon sent to the house where
the said bill was amended by adding there
to another section in the following words
and figures, towit: Section .: That said
| original section OF chapter as heretofore
| existing is hereby repealed" That there
upon the said bill. as amended In the house
as aforesaid was passed by the house and
sent to the senate for It's concurrence but
relator shows to the court that said bill
as amended was never voted upon by INC
senate nor passed by the senate, but the
bill. amended as it came from the house.
| without being voted upon by the senate or
! In any manner passed by the senate was
the governor and appeared in the COM
piled statutes of 1895 as the purported law;
| whereas. in truth and fact the same is ut
terly null and void because not passed In
the manner and form required by the con-
sctitution of the state of Nebraska.
History of LegisIation.
Your relator further shows to the court
that after the publication OF the compiled
statutes of 1895 in which the said section
A of chapter 3 as dassed In 1877 did not
appear, and in which in lieu Of said sec
tion OF said chapter 3 as enacted $50;
there did appear the alleged and pretended
amendment OF said section as said amend
ment was attempte TO be made by the ac-
tion OF the legislature OF 1895 as herein
above reeted and thereupon the said legis-
lature of 1897 passed and adopted an act
as chapter OF the laws of 1897 entitled,
IAN act to amend sections 4, IL and is OF
chapter of the compiled statutes OF 1895
and to repeal said section as now existing"
That thereafter in the compiled statutes
Of 1897 and thenceforWard 10 ana including
the compiled statutes of 1906, the said Sec
tion of chapter enacted I'm 1871 and
hereinabove alleged. did not appear, but
In lieu thereof there appeared in an alleged
section 4 of chapter 3 as the same was
passed at the session OF tine said legislature
of 1897 being a purported amendment not
OF the said section as adopted In 1877. but
! an amendment OF the said section as at
tempted and pretended TO have been
adopted I'm 1905 Said act OF 1897 did not
attempt or puTport to amend or repeal said
section 4 OF the law OF 1871.
That therefore the legislature of 1917
| assed and adopted act known as chap
ter Of the laws OF 1907 and entitled, AN
act to amend section 4 OF chapter III OF
I the compiled statutes OF Nebraska of the
year 1906 &C.. A. S. 6954j. and TO repeal said
, section and also To repeal section II Of
chapter III &C.. A. s. 6962l, and thereafter
there appeared in the complied statutes Of
1907 as section OF chapter iii thereof the
I said section as attempted TO be amended
by the said legislature OF 1907 that by
said act Of 1897 the right and authority OF
the state canvassing board to canvass the
votes upon constitutional amendments, if
Il ever existed, was repealed and thereupon
the right TO canvass the said vote upon
constitutional amendments and 10 ascer-
tain the result Of the said vote and election
thereafter inhered In the legislature and
was properly and legally exercised by the
. legislature I'm the manner herelnbefore re-
lated
| First. because Of the said Law OF 1871
, which has never been repealed or amended,
and.
| Second Because OF the Inherent right
and power OF the legislature to make such
a and aEnnrl ain the EaaIlll nf - 4