Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1912-02-24
SEEMS TO FAVOR COMMISSION
Questions Asked in Court Hearing
Indicate Attitude.
OMAHA CASE BEFORE JUDGE'
Test Case Filed at Lincoia and
Argued y city Attorney Rins and
Attorney Zeigier-Bestrice
Man Takes Fart.
(From a staff Correspondent }


LINCOLN. Feb. Z3.-(special Telegram)
w. 1. Baughn Of Omaha today filed
mandamus suit in the supreme court
which Is destined to test the Validity OF
the commission form Of government law
which has been adopted by Omaha The
writ is asked TO compel Treasurer ure to
accept the filing fee OF Baughn. who
wished to run as a candidate for city
clerk. The money was refused because
the commission charter does not provide
for such an office, though the charter
under which Omaha now operates does.
The court had promised speedy deter
mination OF the case that any opinion OF
the court might not interfere with the
spring election.
Two things were apparent I'm tho hear
ing Of the case this afternoon. One was
that some members OF the court at least
are inclined to sustain the law, II ques-
tons asked Of Isadore Zeigler. VINO ap-
pcared as attorney for Baughn. are any
criterion.
In regard to the argument the legisa-
ture had no right to delegate the power
OF accepting the provisions Of the law
to the voters OF city, but that the law
must apply To all. Justice Sedgwick called
attention to the Herd law in force in
Iowa under u similar constitutional pro-
vision and also suggested the decision OF
the federal supreme court In the Oregon
referendum case. that the law was a po-
litical question and beyond the Ju-isdic-
ton OF the courts? might be applicable.
Old Law Suspended.
When the point was made that the
law was invalid because II was broader
than its title because It pretended TO be
an act complete in itself and yet was
amendatory to and repealed other laws
Justice Barnes suggested IL 1t was not
a fact that It did not repeal the old laws
regarding cities but simply suspended
them so far as they related to cities
adopting the new form and left the old
law in effect for those which did not.
Several other questions seemed to tndi-
cate the trend Of the court.
KretsinEer May File New Case.
Another thing apparent was that o. E.
Kretsinger of Beatrice. who had intended
to argue against the validity of the law
was not satisfied that the plaintiff in
this case had raised all the points he
wished to urge against the law. When
he said that as a friend Of the court he
would file a brief instead Of making an
oral argument the court Informed him
that he must confine his argument TO the
pleadings as filed, Mr.. Kretsinger was
inclined to demur. He was told it was
the practice Of the court, when others
wished to adhere as friends of the court,
TO conflns the arguments to the points
raised by the actual litigants In the case.
From remarks made by Mr.. Kretsinger
1t is not improbable another action to
test the law may be brought from
Beatrice, which has also voted for the
commission form.
Zeigier's Attitude.
The contention OF Mr. Zelgler was that
the act Is unconstitutional because 1t is
not complete in itself, but amendatory,
because ii is an attempt on the part Of
the legislature to delegate TO cities q
power which the legislature cannot ex-
ercise, 1t delegating TO the oyters the
right TO say whether the law shall be
operative in one place and not In an
other; further that 1t violates the const-
tutional provision against special Iegis-
lation. In that It enables one city of
certain class TO have one form OF govern
ment and another Of the same class to
have another.
Act Itself Complete.
John a. Rine, city attorney OF Omaha,
and J. P. Breen. who argued for the
law, eontended that he act was com
plets with itself and that It was a well
settled principle that an independent or
original act may amend. modify or re-
peal by implication, prior legislation: that
the act is not rendered incompetent be-
cause resort must b. had to prior law to
permit the proposed city commissioners
fully to administer the powers conferred
upon them. and that courts In other tsates
having similar constitutional provisions
have ruled that similar acts are not spe-
ciaI legislation.