Omaha Daily Bee Newspaper, November 25, 1887, Page 8

THE APPLICATION IS DE) Nebraska's Supreme Court Dismisses the Cause to Oust Chief Seavey. THE COMMISSION VINDICATED. “The State the Unit of Political Power 1 Responsible For the Peace 1 Morals of its People’ Full Text of the Opin The following is the opinion in case of Simeral vs, Sc Seavey. Dismissed ction 14 g met pointed by the governor under s an act entitled “An act incorporat politan_cities and defining, regulating and nd govern- prescribing their dutics, powers ment,” approved March 1587, facts and swer, Held, A legal appointment within th scope and meaning of the said act 2, The provision of the above act, whereby it is made the duty ernor to appoint a board of fire and polic commissioners for each city of the metro under t mentione tan class, Held, not be repugnant to the con- ED. full in the Same | reumstances as set out in the an- of the gov ol ment of sald board of fire and police commis- sioners have been prescribed by an ordinance of said city. yet it is true that the said board of fire and poiice commissioners did, on the 16th day of May, 1887, prepare and adopt cer- tain rufes and regulations for the guidance of the officers and men of the fire and police departments of said city, and for the appoint- ment, promotion, removal, trial and disci pline of said officers and men, and such as said board considered proper and 1 which said ru and regul ore, b said board, duly submitted to said city coun- cil for its action on the 17 ay, 1887, but respec which the said city council has as yet taken no action, either of approval or rejection. 4. That defendant was appointed chief of police of said city by said board at or about the time alleged in” the petition, and before the members of said board had’ given their bouds as aforesaid, That at the time he was 80 appointed, he alleges there was no law re. quiring, us a requisite of qualification, that they should give bonds, nor was there any ordinance of said city to that effec d. | after said appointment of de made, And defendant also admits t 1 Jed ihe appointment of | said office of chief of poli duties of which he is now and by v ity, the sing under tue of the appointment made as aforesaid,” with a_general denial of all the other allegations of the petitions, 10 ‘here was no other pleading filed in the case, but the argucd at the bar as ie | upon demurrer to the answer. A general demurrer to the answer pre d [ the following question: Was the ap) ment of the respondent by the board of fire of the case as set up in the ax stitution. le The State ex-rel, Edward W. Simeral, | In discussing this question, T will premise county attorney, vs. Webber S. Seav by saying that at the time of the passage of Opinion filed November 23, 1585 —Cobb, and_approval of the act, entitled, **An act «ding in this cou unty This is an orig by Edward W. Simeral, Douglas county, relator, Seavey, resp t uplaint is, in substane natur n inform: nto. jt 1 attorney of wainst Webber S, rt | incorp ing, and government first class, organized and a- | having for its charter an_act, entitled, “An t to incorporate cities of the first class and rulating their powers, duties and_govern- ating metropolitan cities’and defin- bing their powers a was o city of the xisting under and the resy his right to execute the sroved M 1881, together with office of chief of palice of the city of Omaha, idments theveto, all constituting Tt alleges that the ity of Omahi is a city of 1 Statutes of 1885, the metropolitan elass; that under and” by 1 to was not virtue of the laws governi cities of the idment, but an independent statute d metropolitan class there was appointed by | signed to be perfect in itself, and by its 1 the governor a fire and police com- | s®tion, repealed the act last above referre mission, consisting of four persons, That | to, and all acts amendatory thereof, as well the members of the board of fire and pol asull ucts and parts of acts inconsistent commissioners i ui 1 was app 1 city, said commission nen and policenen at the times thereinafter set forth no ru and regulations governing said board of and_police commissioners had b cil of said city 1857, suid defondant was by said board « fire and police commissicners _appointe chief of police of said of , b that at the bonds of proved by suid nor rules and regulations by ordinance be adopted by said council “gove time of and that said commissioners, without liw authority, removed Thomas Cmumings, wh at that time wis acting ¢l police, and appointed in his ste has been ment wron :fully and unlawfully cx and usurping the functions of said of that said 8 HOVEr approy firmed the said appointment of ant as by law r By wiiy of am nt, said relation g alleg t before the passage of the act act 1o incorporate ete., approved March of Omaha was a city under the laws of the state in force with respect theret brask: the city of Omaba hud a poli city ma hal as then provided by a of the city of Omaha thereund Jegislature adjourued sine dic first duy of April, 1587, and has not been in ion sinces that the 3 that on the appointments muade by the governor as icies in said bourd by death. r aforesaid were made after the adjourn- be fillec the ment of said legislature, and the appoint- term, and all i ments were not made with the advice and oV hall be so filled, that consent of the senate. That the said appoin to which said ded to be made t the said pretended board or fi ave appointed a large number of rsiid time of the tended appointn ppointme: said defendant hercin, was acting as chiet of police, and poleeen continued in their oftice the time of the pretended appointmenigy re-appointment of said defendant and th all othe Tunds whateve council to pay th ary of said other since the jy the m lant or the sa and at provided by said def nany fund pay the of said polic | appointiment of the d policemen by said board, th ! vthe salaric at at the time of th the time there- inafter set forth nd refused to B Heient bond fo of their duties, L or and coun- | be I day of May, iad not been ap- 1 had_any ng the re- moval and uppointment of chiefof police, and of * of said de- fendant, whom petitiouer alleges is now and cver since his pretended appoint- | suid defend- hat when said act relating to metropolitan eities took effeet 3 with re- spect to cities of the first class and ordinances aid legislaturd aid | remove any of said » therefore unconstitutional and i appoint : were orl ginal offices and eriwinal appointments and not a vacancy or appointment to fll a va re and siald Cummings ap pointment of said policemen, there were no b respect to nd council to ntand of the other mayor and coun therewith, It contains an emergenc und therefore, took effect and became of v | foree immediately upon its pas 18 | By the terms of the first s v toall ation as v by tall cities *which have attained a pe s [ tants or upwards. vides in what hereafter b of inhaby 60,000 the state o shall he ulation of 60,000 inh, The second se manner such cities ve attained the necessa wts shall be brought ~within thabi tants the operation of said act. T There is no prov m torms td | continuing any o appointed it the forme under the ic | new one, but they would 'doubtless, so tinue upon general principles of law ynd necessity, until the el | of their successor But with this _qualification it is intent and witin the scope of the aet Or [ tablish a new government for the 10 | cities thereby established Section 145 is devoted 1o the establishment, L department of fire and police for the new 8 of metropolitan cities, and is i the fol- con- by ction or appointment under the new charter. el lowing words “Ineach ¢ of the metropolitan clas there shall be i board of fire and police, to consist of the mayor (who shall be ex-officio chairman of said board) and four electors of satid city to be appointed by the gove The zovernor shall appoint” as the e wbove, four citizens, not mor two of whom shall be of the puarty. Twoof them of differ party faith and allegiance sh in their appointment to serve and the other two, also of diffe party f: sione it political th, shall be designated to_serve f And thereafte Xpiri term, and each veriod of two or shall appoint two mem four years tion of suid iduct, the mmi ial misce governor may sioners: and all s than two of board shall be of the so reputed. ALl powe i | withand incident to the moval, government and ¢ members of the fire and ents of the city, under such ulations as may” he preseribed we, shall be vested in and said board. A majority of said constittue u quorum for the business, and in the ubs o | president of the commissioners of fi police, the mayor shall Befo entering — upon cach of said office subscribe an oath to be filed with the ity clerk, faithfully, impartially, honestly and to 1" | the bostof his ability to- discharge his duties t the appointment, re scipline of the ofti police de- rules and by « exercis hoard s and act as chairman their — dutics, shall take and no time | @8 & member of said board, und that in making appointments I [ sidering promotions o Is he be wuided or actuatd ifiucnces, but will 8 | ests of th bourd of fire and it shall be Gillof snid ofty nndort 'ould not. pro. futy of said board to appoint a_chicf of vide uny funds to pay such vies, as the | the fire’departnent, an assistant chief of the full extent of thefr auth nexereised and such other oMeers of in behulf of raising a poli sonly a8 may be de a sufticient wmount to pay the salaries of thie | Sary for its proper direction, policomen then in office, and the number ap- | and regulatio; d under such pointed b suid bourd far exceed the resulations as may be prescribed by ordi of funds for salaries, which it is the mayor and city council to the law, et poss! provie a voluntary quote from the fMce the law of the state of metropolitan cities, th by the governor of saigt Comnissio { L M B G skin g0 Christian inett, in this behalf, thd defendant alleges th under said law, the mayor of the city omaha b and is ex-ofticio a membe irm id bourd. That sh heir said appointment to said board fte the 10th diy of May Hartman, Gilbert and Sn subseribed an oath to su tion of the United States, the « the state af Nebraska and faithfully partinlly perform the dutics of the commissioners of fire and | law, and to the best of that he would to the best of eharge his dutics as a me of fire and police commissioners of Omaha, and that it considering promotions ov would not be guided motives or influences only the interests of the city 187 of the e muking wnd the sucee with the mayor of said cit wd and entered upon 1 wreof, which they have ever sin continued to perform That at the time of the appointme and qualitication as aforesaid of the memb of said board, there was no lay of said eity rc ng of th that t ed as aforesaid, bonds in exact ¢ ments of said or said Bennett and Hart said city council on or aby August, 1557, while those Bwith were reje the names of 1l the bouds res s wen council August ), up 10 the preseht reject thim That while it ap. foundation of respondent’s claim dmits that under and by virtue of N rning of was duly uppointed | 48 y i ire and police | S four persons, viz. Hartman, prge 1. Gilbert and Howard B, Smith, Aud appointments, co- | the tiveness of said_department of i e, That said oaths were filed with the vk of said city, May 10, 1857, Wher said Beunett, 'H i, Gilebert nanee; said be or any of the consider and ( for the prop w- | for the more eff said departmed lice shall als sistants, or 1y remove such o E remen and _as- authorize the chief the fire tment 80 to do, may be proper and neces- ry for the effective service of sid rt ment to the extent and limit that the funds provided by the mayor and council for that purpose will allow.” The board of fire and at | police stall have powoer, und it shall be the of | duty of said board, to appoint & chief of po- tice, and such other officers and policeme to the extent that funds may be provided e and couneil to pay their may cssary to protect citizens iain peace and. good orde of potice and all other police officers and policemen shall bo subject to removal by the board of fire and police, <o | under * such rules vd regulations s | a8 m be prescribed by v | dinance,” whenever said board ty | consider and declare such removal ne for the proper wanagement or_ discipli for the more effective working o vice of the pol department e | shall be th duty of * said ss | board of fire and police to adopt such rules ve | and regulations for the guidance of the oft rsand men of said de uppointment, promotion, or discipline of said office nts, and for moval, trial s and men, as sad y, | board shall cousider proper and necessary, » | and when said rules und r lations shall be ce | approved by the mayor and council, they shall have the same foree and effect as ord nt | nauces, and can only be changed by and with s nsent of the ma, and council. The 1 tive ar e shall have such perform such other horized v defined by ct, mean il fin? of a8y i 1o means follows veglected in constru N toreject any of Le attached to . But we provisions with each other, W 145 mukes it the duty four commission Cmayor, shall e ieg, and it is A to wppoint a L. generally ard Pall powers and dutics ted With wnd ingidgpt 10 the appojit Ben ment, removal and discipline of the officers members of the police department.’ also find section 53 in the following lan- guage: “‘See. 5. The mayor and council shall have power to establish, regulate and support night watch and police, andto define the duties thereof, except as otherwise herein specially pr d Now, this is a general provision which, it i rsted, would furnish authority for a 1 police est ropolitan statute. s, I think, would b it by no means follows that with tions in the act, 145 does the more studied, clabor pression of the will of the legisluture, ov s0, and yet both sec not contain by far e and perfect ex- More- it is believed to be a sound rule of con- struction, in law and logic, that general pro- visions will give way to the enactment, when the latter is broad and clear enough to cover the whole ground, and express the undoubted intention of the legis- force of special lature It is urged that the appointment of fireand police commission and they acttng to. gother with the mayor, appointing a chief of police for the city, is the imposition by the state, upon the city, of tuxes for corporate purposes, and hence in violation of the cluuse of section stitution, which shall not impose tuxes upon municipal cor tions, or the inhabitants or proper thereof, for corporate purpose Section 19 of the act, among other things, empowers the mayor and council *'to le and collect on all such property for the sole and_exclusive { maintaining and ment of any such » mills on the dollar ny one year, taxes levied for such purpose to constitute a special fund for snid purpose.”” And it was stated by counsel at the argument, and not_denied, that the mayor and council of the city of Omaha have acted under sucii authority and levied taxes for the current half-year Sufficient to provide ample funds for the support of the police de- partment, valuation in ion 167 fixes the salavies of officers in ics of the metropolitan class, including the ! funds will doubtless nd disbursed, and the same id toa enief of police whether spondeént or any other appointee of the chief of polic board of fire and police commissioners tinues to fill the ofice or giv pointn con- way to the ap- ouncil. So far ris concerned, the tax nt of the mayor and irrent half ye ady been imposed by the city authori ties acting under the provisions of t u line of action which does not seem to huve been rendered either more or less neces by reason of the peculiar provisions of sec tion 145 or the action of the state or of uny of its officers or appointees thereunder. Section 145 ) provides that before ent ing unon their offieial duties, the said missioners of fire and police shall take seribe and file with the city elerk a cor and peculiar official oath therein The on does not provide that they shall give an official bond. Tn the answer it is ul 1 that at the time of the appointment of respondent by said board there was no ordi- nance of said city requiring the members of said bo: This alleg. stunding taken as tr It is r that th nt of the m i board of fire and police commi governor, is void for the reason that such ap- pointment was not made by and with the ad- vice and consent of the scnate, and to this point Seetion 10 of article 5 of ‘the constitu- tion is cited. Suid article is as follows: “See. 10.-The governor shall nominate and by and with the advice and consent of s semate (expressed by majority of all senators clected, voting by y nd ) appoint all officers whose offices arc es- <hed by this constitution, or which may ated by law, and whose appointment or election i not otherwise by law or he provided for; and no such oft pointed ed by the legislature of the section is, * gov ppoint,” ete., without the quali ation that such ‘appointment shall be de- pendent upon the advice sent of the senate. These ofticers are ereated by law.but ntment is otherwise provi ioners by the I¢ The langu their apy for, than in the mode pointed out i ion of the constitution quoted. The contention is, that it would be competent for the statute to have designated sowe other officer or person to malke these appointments, in which case the advice and _consent of the senate would not be required; but that it is incompetent for the statute to clothe the gov or with powerto make appointment of any offiecr without such qualification and r ction. | know of no reason, nor has any been sug. for this distinctio 1 while the Imis- e ideration is dv d practice in this st will not be denicd that throughout its history 1ot a session of this 1 2 has passed, without the passage of laws in terms similar to the one now unde sideration and their exeeution by the gov- without submitting his appointment to I necd only instance the cases of the military s whose appointuients have become necessary to sup- ply the new judicial - disiricts and the addi- tiona! judzes to old ones,as from time totime provided by law. 1t is further objected that the legisiature has no power to make party affiliation a qual- ification for office. King for myself alone, Tam quite inclined to agree with coun- sel in his objection, and yet I think that the Tanzuage of the act out of which this objec tion s merely, t overie him wh such appointecs « of them belong Int of the Peopie vs. Hurlbert, cited by counsel for the relator, Cooley n delivering his opinion, speake ing upon a branch of smd case involving a question almost identical with the one we are now considering, said: — “Nor can the whole act be void because of the provision that the appointees under it shall be members of two certain political part That provision so far as it was designed to control ap- pointments for the future, is simply nega- tory, because the legislature, on general ' e no power to make party af- qualification for off But so » regarded as o appointees named have selected use they sustained the specified party tions, we can only say that where a fight of choice exists, an_clec tion cannot be held void because of the reason assigned for the choice made,” ete, ore come to the conclusion that the s raised by the demurrer. ‘mative raised cor stions to the right of the re- * siid ofice, which may be re following proposition: Is the act in question, making it the duty of the governor to appoint the com- missioners of fire and police for metropolitan cities, repugnant to the constitution On this point, counsel in the brief say: “It is contrary to t stitution with reg (question, of a street t the con sent of tha the constituticn, taken together with the fact that they make 'no other therefrom, would indicate, even had they not so stated at the bar, that this point is predicated upon the spirit of the constitution, and not upon the letter of any specific provision. It is no doubt the general spirit of our coustitn and _institutions, and in habits and traditions of our sof every subdivision of an equal share and re sponsibility in | \Mairs, 80 fur as the same shall have been found conducive to the public safety, the preservation of the pnblic peace and ihe conservation of the public morals, and in every case of doubt of const ing u statute where such construction mi turn upon the recognition and fostering of such spiv court would be blind in its duty in that behalf. And yet, it is the boast of the they live unc not look for n g erty, to any intangible o the opinions or constyuctions of st of men Municipal cities, are several constitutior to them, but ot coming subscribers d or private o Americun people in” every state, thut v o written constitution.and do vauty of their rights or lib de of traditions, or uny mun, or the seuso of L the ations, in nes mentioned le, the IX, is devoted oration; 4 el | IX n six of article Jogistature . is . limited i its 10 vest them with the power to mak improvements, ete,, and in the section cited by cou wey are guirantecd the vight'ta Vote upon’ e subject of street ruliways THE OMAHA DAILY BEE: FRIDAY were busy from morning till late at night, to wait on the t our store, and we regret that we were no men was not sufficient to attend to all. a made big holes in our overcoat piles, but suits and overcoats from our daill}‘r. and we propose to get rid ofthem as ast week we have convinced thousands of customers that t so cheap as we offered real value. WE EXPECTED Our big special sale of overcoats would cause a commotion, ticipated such a rush but we must confess we neyer an as we had all last week, and esgecially Saturday. Our 35 salesme them. are especially big bargains: $4.7 $6.5 $9l7 price is $9.75. 813.50 $10 to $12. diagonals. slaughter price is 8 Several large lots of Pea Jackets and Vex goods, which are usually sold for $10, 12 and # ported astrachans with elegant and trimmed, every one worth $15.00, and that 13.50. reat New tin lining, and fully worth ¢ f t better prepare nd a good many h we are not through York This week we will show how low that were made by one of the best houses in the co men of moderate means ever had to procure We cannot describe them all, bu This lot contains about 250 plain, doublg and twist, and silk mixed cas the price wh Nearly 400 fine tailor made Suits, the choicest of the gr yet. fast as they come in. h other deale 300 good heavy Cassimere Suits, warranted strictly all wool, lined with good heavy serge. guality and such make was ever offered for less than 7 to #8. Our slaughter price is §4.75. meres, some fine cheviots, ele; s would ask for them. chinchillag, plush and astrachan, lined with fine ca: 8. Our slaughter priceis §4.25, $4.75, #0.00 and 1175, S to £30, we offer at £16.90, rongs of customers that crowde d, as even that large torce of sales« ad to go away. Saturday’s busines . Over one hundred cases o purchase, are still on the way and coming in hey never bought oyvercoats W good suits can besold. Suits untry. This is the greatest opportunity ood first class garments at about one half th we mention afew of thelarger lots and which No all wool =uit of such This is the price we have placed on about 200 fine black, warranted real worsted, Corkscrew Suits, some lined with silk serge, some with good double warp Italian, well gotten up. erate means, and will give good satisfaction. Our slaughter price is $6.50. This will make a good dress suit for men of mod- It is in every respect as good a suit as is sold by other houses fop intly made Our slanghter it purchase; cassimeres, beautiful fancy worsteds and The material is the product of some of the best mills in the country, and some imported, were manufactured for the finest city trade, and have been made up to sell at retail for from $18 to §25. These suite Our simere and Italian A few extia fine im- . .. We wish to call the attention of ladies to a small but especially attractive assortment of fine children’s overcoats, which fell into our hands with this great purchase. 3 best of material in Cassimere, Chinchilla and Astrachan, elegantly trimmed with fur and plush, and of exquisite designs. every respect first class. broken we have marked them at about one third their real value, ] g We are daily in receiptof numerous mail orders from out of town parties, and wish to say that we cheerfully send goods b to pay express charges. bot¥x Theseare made of the These garments were manufactured for the cream of city trade, and in There are only a few small lots of them, and as the sizes are somewhat express C. O. D., with privilege of examining when partiesare willing ways in case goods are returned, and we require a deposit to cover such charges. We sell goods with such asmall margin of profit that we cannot afford to puy ex- pressage. All goods maxked in plain figures and at strictly one price. Nebraska Clothing Gompany, Corner Douglas and 14th, Streets, Omaha. running through their respective streets But in none of these provisions, nor an has enabled me to find, is there ‘any ind tion of the mind of the framers of the cons tution, or the people who ratified it, to guar- antee the votes of cities of any class, the right to a voice in choosing their municipal on 7 of anticle 12, of the constitution, des for the time of holding the general ction for cach year except the one at which said constitution was to be submitted for rat n, and that t ,county, pi cers by the constitution ¢ » by the people, excey cers and municipal officer and towns, “Shall be clected at a general election to' be hield as aforesaid.” This pro vision recognizes the fact that all municipal ofticers which were eloctive were made so by the legislature, und in my view is to some extent a recognition of ‘the framers of the constitution of the plenary power of the leg- made hool district ofti- in cities, villuges er the subject. urn to the subject of the general institu and of our that it tions, 1 have gencral spirit of ow tutions, and in accord with the habits and traditions of gur people, that the inhabitants of every subdivision of the an equal share and responsibility in affa found conducive to the public safety, the preservation of the public peace und the con- servation of the public morals. Tt is doubt less the duty of the courts in ull prope g to give full waight und due consideration ce of construction, but courts lition of als in any cities, of the state. These are politi for the considera- tion of the legislature and executive depart- ments, The state is the unit of political power and responsible, through its legislature and exe utive, for the preservation of the pe morals, education and al welfure of the people, and in the dischas the duties scessary for 3 1 only by the suprem t, the laws s public .80 fur as the same shall have been | class, is not repugnant to the consti tution “The application is, therefore, denied and the cause dismissed Judgment accordingly The other judges concur. POWDER Absolutely Pure. s A wmardel ss. More kinds, and cann L the multitude X ordinary s0ld in competition w cost, rt welght i or_ phos Sold only 1ncans. - Royal Baking P 120 Wali Bt., New Y ork, powders, wder Coyy | Omaha Medical and Surgicéflnslftute. other which the limited time at my command | And TRUSSE ey onert BOoK on 1 Omaha Medi Or. McMenamy, Cor, 1 Owlng to the rapia comn ot farie that the oha \ v Easy P Instrumen and Surg e, could. 1 13th and Dodge Streets L CHRONIC 3th and Dodge Sts., Om growth of Omaha and armed lod physicinns disenses treated 1 the wo for Deformitie r trenting d Pianos, CHICKERING, KNABE, Vose&Sons Instruments exchanged, rented and cld on ayments, below FACTORY PRICES. ts slightly used at LINCO The A public ga LN., NEB. most pupuiar Hotel | appointments O dreint men and all E.P ROGUEN Proprietor, DRS, S, & D, DAVIESON, cal Lnstitute, or iha, le? GREAT BARGAINS Max Meyer & Bro., Omaha, Neb. 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