Omaha Daily Bee Newspaper, June 9, 1895, Page 5

e MANDANUS WILL NOT ISSUE|: ou in the Platte Oanal Caze by n Bane of District Judges. | UNANIMCU3 AS TO THE MAIN POIN Dec Differ as to Constitutionality of the Law nd Other Features—Opinions of the Three—Case Goes to the Supreme Court, The decision of the dstriet eourt denying the writ of mandamus against the county commissioners to compel them to call a spe ¢lal election for votiug bonds to ald in the construction of the Platte canal was ren dered yosterday by a banc of three judges Long before 10 o'clock, the hour set for rendering the court's opinion, the court room was crowded with prominent citizens the crowd of listeners extending out down into the hall, while every available space in the room was taken by the time Judges Am- brose, Duffie and Keysor had taken their seats. Each of the judges delivered care fully prepared opinfons, the decisions being | read | On Before th one order named point the court was smmencing the reading of his opin fon, Judge Ambrose stated that it was th unanimous view of the court that the manda mus should not issue. Judge Ambrose, before whom the case was orlginally brought, and who had Invited the other judges to sit with him, overruled th canal law in all particulars, holding it un constitutional as to the right of the judges to appoint canal trustees and holding that the trustees were county officers and should be elected, not appointed. Both of the other judges refused to hold that the iaw was unconstitutional, Judge Duffie taking the view that as the commis- sloners had a discretion as to the amount of bonds to be issued, it woull be useless to compel them to act, as they could by making the issue small, nullify the law, and Judge Keysor holding that the better practice would be to deny the writ and so get the con- stitutional questions squarely before the su- | preme court, as it might be a question, 1f the writ was allowed, as to steps could be taken to get the matter before the court OPINION OF JUDGE AMBROSE. Judge Ambrote's opinion was as follows. This is an application for the Issuance of a writ of mandamus to corhpel the respondent, the county of Douglas, to call an election and submit the question of voting bonds to ald In the construction of the Platte river | canal, under and by virtue of an act passed | and approved at the last sesson of the legis lature of this state. It is alleged In the application for the writ that a proper petition was presented to the | Board of County Commissioners, sizned by | the requisite number of legal voters, and | that the county commissioners refused to | call such election, alleging among other things that the act tutional. The respondent has fully answered and has | disclosed to the court the petition which was presented to the board, asking that an elec- tion be called, as provided for by the terms of said act. In addition to the answer of the respondent, | various taxpayers sought the permission of | the court to be allowed to intervene, and | were granted the privilege, and have filed | answers, or petitions of intervention, alleging various grounds as to why the writ should | not issue; the same grounds substantlaliy | being alleged and averred by the proper re- spondents, One taxpayer Intervened by way of de- murrer, and he, too, rases the same ques- | tions sought to be ralsea by the county at- | torney, and the proper county authorities as | to why the writ should not issue as prayed. | And, in the first instance, it may be well | to dispose of the question of intervention, ‘l n question was unconsti- INTERVENORS GO OUT OF COURT. The princ'pal ground by which it is sought upon the part of taxpayers to intervene is that the county commissioners collusively admit in their response to the application for | the writ that the petition signed by the 2,600 and more legal voters of the county ' was a proper petition. The taxpayers inter- vening allege that it was not a proper peti- | tion, for the reason that the petition itself | upon its face sought to locate the route and ostablish the termini of the proposed canal, | while by the terms of the act itself thal power rested with the trustees created un- | der the act. The petition, as presented to the county board is attachd to, and made a part of the answer of one of the respondent county commissioners and is fully before the court. Its effect, and whether or not it was a proper petition, is thus presented to the court for its determination; and it is not competent for taxpayers in an applica tion of this nature to intervene on the'r own behalf, unless they can allege and sub- stantiate by evidence that the respondents are colluding with the relator, so as to prevent a full hearing of each and every question that shall be presented. Each and | every question in this case, as presented or | attempted to be presented by elther one of the | intervenors is fully presented by the answer | of the several resvondents who are properly | before the court. While I have listened with great attent'on and have received very great aid and benefit by the argument of counsel | for and on bohalf of the several interven- ors, yet I am constrained to say that the | intervenors, as such, have no right to be | heard in actions of this kind under the plead- | ings as In this case; and the intervenors will | be dismissed. DEFECTS OF THE LAW. Proceeding now to a consideration of the questions involved In this application I | remark that the principles involved are of | very great importance, and have been ably argued by counsel upon either side and have been presented after great research. The questions presented are: First—That the act in controversy is un- | constitutional becaus: it provides that the | judges of the district court shail appoint the | five trustees, and that such trustees, when ap- pointed, or as created by the act, are county officers, and that the constitution provides that such county officers shall be clected by the people. Second—That the title in that it to sald act is fective, contains more than one subject, and the subject of the act s not clearly expressed in its title; and that the | act undertakes to amend or' repeal, or, in | effect, amends or repeals previously existing laws, and does not contain the section or sec- tions so amended, and the section or sectlons 50 amended are not repealed Third—Because It is special legislation, in that it delegates to any one county having | a population of not less than 125000 in- habitants, the right of putting into opera- | . or of determining when shall be opera- a statute virtually affecting the rigits | privileges .of the entire people of the de- | and state; and that it grants to only one county In the state, or to a corporation created by | the act, special and exclusive privileges and | franchises. Fourth—RBecause it creates a corporation known as the Board of Canal Trustees of Deuglas county, Nebras! Fifth—That it makes party afliation a | qualification for office. | Sixth—That it gives the canal trustees named In the act a life tenure of office, in that there is no limitation on the term of those appointed or reappointed, after the ex- piration of the terms of those first ap- pointed. venth—Because it provides for taking private property under the guise of taxation for other than a public purpose. COUNTY NOTHING TO It will be seen that there is created by this act of the legislature a corporation which has unlimited power and control over all finances relating to this project, and that the county of Douglas, which it is confessed is the only county in which the project can be operative, has nothing to say in relation to the matler whatever, except that the county shall provide the nec'ssary funds in the first Instance within the taxable limit of the county for the carrying out of the purposes of this act. Every dollar expended, the way It shall be expendsd, for what pur- it shall be expended. at what prices shall be purchased, and where SAY. | ment unanimous. | i { fully THE OMAHA DAILY BEE—=SUNDAY, JUNE 9, 1805. o property shall be pu lusively within the control of this corpora tiop thus created Does this act then amend any of the usly existing laws relating to counties, y affairs or county revenues? e act und:r consideration an amend- of the sections to which reference has | jnst been made? They are not referred to In tho act. These sections are not changed by the terms of the act, nor the provisions confiicting with the act In_question are not repealed Is the county of Douglas a beneficlary inder the act In question? Is it, in fact, the owner of this canal, and of (he revenues derived from it; and responsible for its proper construction, maiutenance and con- duct If it s not, then it has no authority what. over to Issue bonds for its construction, 1f it 1s beneficlally interested in this project, then does not the provisions of the law In relation to the conduct, the purchase of property necessary for its construction, the payment or auditing of all the accounts con- cerning the recelpts and expenditures of this canal, serfously confiict with the provisions of the statutes to which reference has just been made? Does it not take out of the power of the county board, to make all con- tracts and to do all other acts in relation to the property and concerns of the county? If it does, and can in any measure be con- sidered an amendment of the provision re- ferred to, then it must fail, because the act in question does not comply with the pro- visions of the constitution in relation to the altering or amending of previously enacted The act fn question creates a new and in- dependent corporate body, carved out of a previously existing corporation. This new corporate body I8 a county agency, or it I8 nothing; and it Is invested with power over rovenues derived from the investment of county funds, and payment from such funds for property, which property belongs to the county of Douglas, and divests the prior corporation of all power of investment of such funds, or the control of such county property, without in the least degree seek- ing to amend existing statutes. This mode of legislation cannot in my judgment be up- held. POWER TAKEN FROM THE PEOPLE. The next question T wish to consider is: Have the judges of the district court the constitutional power to appoint the trustees named in this act, and who, when appointed become an organized body corporate, pos- sessed with the full powers of corporations as known to the law? These trustees, when they shall have been named, and shall have organized the corporation created by this act, stand in the relation of directors to any public corporation. The entity, the corporation itself, cannot act except through the legislative capacity and power of the individual members of the board of trustees. The people of the county of Douglas in relation to this corporate body thus created, stand in the relation of stock holders to an ordinary public or private cor. poration. This board Is possessed of most extraordinary power. It has the power of expenditure of more money than the Board of County Commissioners would have for twenty years to come. It has the control of a great scheme, if successful. It has the entire management and manipulation of the greatest political force and agency which the state of Nebraska has ever created, and it would seem as though stockholders, such as the legal voters and taxpayers of Douglas county are in relation to this scheme, ought to be possessed of sufficlent capacity and power to enable them to select the men to whose management, custody and control they are willing to entrust this vast expenditure of money, and this vast political machine and power. These canal trustees, acting in their capacity of directors of the corporation, have the entire control, power and dominion over this whole subject; and the judges of the district court of Douglas county alone are clothed with the power of setting in motion this mighty engine and force. The seven men occupying the position of judges of the district court of the Fourth judicial district of Nebraska are not the judges alone of Douglas county, but they are the judges owing thelr seats to the elective franchises of the legal voters of the four counties composing the district, some of whom are not residents of the county and have no financlal or personal interest other than the other citizens of the state at large have In the private concerns and interest of this county;. When we shall meet to ap- point them we are to examine and ses who are the most fitting men out of a number of applications, not alone according to their financial or business sagacity, but accord- ing to their political proclivities. The test must be with us: Who are the two best men who are republicans? Who are the two best men who label themselves democrats? Who is the one best man who is labeled a popu- list> We can appoint no more from each political party. The three political parties Just pamed, and in the order in which they are named, are recognized in this state as the controiling political force. No man has yet been heard to say that the exercise of this power thus conferred upon us, and which must necessarily be exercised in this fashion, is & judiclal power, but it is con- ceded to be a political power. WHY JUDGES WERE SELECTED, Irrespective of decisions, it being conceded, and rightfully so, that the power which tha judges are caled upon to exercise Is a politi- cal power, and not a judicial one, and con- ceding the full force of the argnment by counsel for the relators that political power is vested wholly within the legiclative body, and that they may delegate to any person or body the power of appointment, yet the per- son or body upon whom this delegated power is imposed ‘must be such a person or body as is competent and exercise the function which the act in question imposes upon them. The judges of this district are selected, not becausa of the individuals occupying the position as judges, but simply bscause they are judges, and are delegated to exercise as judges the political power of making the ap- pointments in question. The judges of this court exercise, It is true, in some instances legislative power, such as the making of rules and regulations for the government of the court, the appointment of bailiffs and reporter Upon the other hand the legislature in the allowance of a claim, in the punishment of those in con- tempt of its rightful orders and directions, exercises in a sense judicial power. The executive In granting letters of extradition of criminals, in the calling of an extraordinary session of the legislature, and in many like instances exerclses also judicial power, Yet such Judicial power thus exercised by the legislature, or the executive, as well as such legislative power exercised by the court in the way indicated, as only and solely exercised to such a limited extent as may be necessary for the purpose of carrying into effect their own individual powers, as expressly delegated to them by the very terms of the constitu- tion No man bas yet had the temerity to say that the executive may render a judicial judgment, or that the legislature may over- turn a final decree pronouncd by the highest court in the state. By the very genius of | the organization of these separate depart- ments, neither has the power to exercise th control“over the subject matter with which ach department is individually and separately endowed. LEGISLATURE WENT TOO FAR. As is sald by Alexander Hamilton, 81 Fed- | eralist, page 325, sixth edition. *“The mem- bers of the legislature will rarely be chosen with a view to those qualificatiyns which fit | men for the stations of judges, and as, on | this account, there will be great reason to | apprehend all the ill consequences of defective information, so on account of the natural propensity of such bodies to party divisions there will be no less reason to fear that the pestilential breath of faction may poison the fountain of justice. The habit of being mar- shalled on opposite sides will be too apt to stifle the volce, both of law and equity.” Apply this expression of the use of judiclal | power by a legislative body to the exercise of legislative power by a judiclal body, and the analogy will be compléte. The use of this language Is not saying as to what the judi- | clal body clothed with this power of political | appointment would probably do, but the only test is what might be done. Shall it be sald In time to come that the judiclal de- partment of this state, récognizing the un- | limited control of the legislative department | over the passage of laws, as they must, that bocause the legisiature has seen fit to confer | political power upon the judicial department | that therefore we will exerclse it. If we bave the power to exercise political power at all we have the power to exercise entire | political power. There ean be no limit to | the power thus possessed by the judiciary. Can it be doubted that when the consti- tution clothed the semale and house of repre- | taxpayers should mak: the appolutment and | jud; N. B. FALCONER We now enter upon the second week of our GREAT JUNE CASH SALE. store every day last weck and you have heard them speak of the extraordinary bargains they got. Just as fast as one bargain is sold out we have another ready to take its place. will be sacrificed this week. We will offer even greater values than last, e a7 s e E————— Many new and choice goods You all know what crowds attended our Prices will be lower than they were ever know to be before and that too on the very choicest and most desirable goods to be found anywhere. Values such as these cannot be found elsewhere. e ————————————————————————————— —————. — Silks! Silks! Bengaline Silks at 25¢ Yard. In shades of drab, navy, myrtle, canary, heliotrope and black, actual value 65¢, Monday at 25c. Cheney Bros.' 24-inch Printed China Silks, worth $1.00, at 59c. Blick Armure Silk, the $1.00 qual- ity for 50¢ e Fancy striped Taffeta Silks, very desirable for waists, the $1.00 qual- ity for 69c¢ Colored figured Alma Satin Surah and Taffeta Silk, actually worth $1.00, at 59c¢ Colored, striped and figured Satin Surah Silks, in small, neat designs, regularly sold at $1.00, at 37%¢c Goods Imported Challies, 33¢c All our French Challis that sold at 45c and 50c on sale now at 33c. Silk finish Henrfetta, All our best Henriettas, 46 inches wide, that sold at 75c and $1.00, all shades, Monday at 50c. 50 pieces new Novelty Dre marked to sell at S0c and 250 yard, s Goods, , NOwW Wrappers at 68c Worth $1.25 and $1.50. Monday we place 50 dozen of our best plain and been selling at sale at G8c each. different patterns and ginghams, some plain and some trimmed with fancy braid and lace. This is a great s no figure in thi trimmed Wrappers, $1.25 and that have $1.50, on We have over 100 in challis, prints crifice, but cost cuts sale, Shirt Waists, 48¢ Worth up to §! All of our Shirt Walsts that sold up to §$1.50 eadh go on sale Monday at 48c each. Among these are white lawn walst checks, stripes gnd many new de- signs in percales and gingham. We expect to sell every waist in thiy lot Monday, as it Is the greates bargain we have ever offered. Colored Dress i Ladies’ and Gents’ Furnishings. - Suspenders, 19¢ Gents gilt trimmed elastic cord end summer weight suspenders, in black, blues, medium and light shades, at 19c per pair; regular price 35c. Four-in-Hand Wash Ties, 19¢c. Ladies’ and gents' new French al weave, also madras and zephyr cloth, Wash 4-in-hand Ties at 19¢ each; regular price 30c. Ladies’ Hose, 37 c. dies' 50c quality Hermsdort fast Kk Hose, double soles, heels and at 37%c per pair, 2 pairs for Misses’ Hose, Misses' 15¢ quality fine ribbed fast black Hose, in sizes 6 to 9%, at 8%c per pair, 3 pairs for 25c. Linings- Yard wide Percalines, for .walst and skirt linings, black and all col- ors, 10c yard for the 15c quality. Fancy waist linings, 10c yard for the 20c and 25c qualities. Bedspreads 100 extra heavy Marseilles pattern Bedspreads, regular price $1.25, for this sale 85c¢ Tablecloths 200 double damask pattern Table- cloths, 2 yards by 21, regular price $3.75, for this sale, $1.08 hemstitched Scarfs, 20x56 stamped in the latest 500 linen, regular price 7 all styles, , for this sale 20c¢. Millinery Dept Monday morning we will place on sale 100 choice Trimmed Hats for $1.98 each, worth from $5.00 up. These are the grandest bargains ever offered. We want to see our store jammed full of people all day tomorrow and these are the prices to do it. Black Goods At 37} All wool Storm Serge, All wool Albatross, all wool Imperial Twill, all wool Nuns' Velling, all wool fig- ured Tamise, all wool black Novelty Weavi ete,, ete, 36, 40 and 46 inches wide, sold at , 6c and all go Monday at 37%¢ a Yard. Sunbonuets, 29¢ A new novelty in Infants’ Sun Bone nets, just in, white and colors; make the little ones happy; It's a great fad. White Dresses, 48c. Tomorrow we close a line of in- fants’ White Dresses, a new, beautiful goods, nicely trimmed, actually worth to $1.00; we start them jor 4Sc. Sun Umbrellas, 98¢ 100 Sun Umbrellas, an extra qual- ity, good for sun or rain, regular price $1.50; we start them for 98c. New Laces New Veilings, New Ribbons ——————eee e e, sentatives with legislative power that it in- | one of them was a fudge; no one would con- vest el them with all legislative power? ( n | it be doubted that when the constitution pro- | vided that judicial powers should be vested in the supreme court and district courts, and such other inferior courts, etc., that thereby all sane there was the that Judiclal power was thus invested? person can for a moment doubt t an absolute prohibition ature exercising judiclal power, legls the judiciary No hat against or hould exercise legislative | power, for affirmative words vesting power | under’ a constitution are construed as pro- hibi other Marshall Cro the exercise of the by departments,’” s in Mabury against power ting $ Chief uch AF 'ER A CAREFUL RESEARCH. all Justice Madison, 1 As is said in the case of Taylor against Place, | that by of the government are tou powerless to suc- cess legislative body of a state 1s powerful both in numbers and influence of members; because it h tution from these sources of power similes of Madison, its ambition becomes en- terprising, sphere of its activity and draws all power into its impetuous vortex; in fine, it is only because it so much needs constitutional con- trol that the doubt arises whether the con- supr We should never the assumption of the legislative pow the judiciary or the executive could itutional simply because these branc ully usurp them. It is only because under our con ap pays; beca to borrow holds the purse, and appoints as well ) that 1t everywhere extends stitution does control it.” Shall we by reason of our ambition, which has become enterprising, extend the “‘sphere | of our activity until it hall be thrown into | the ‘impetuous vortex' of political contention s0 graphically described by Madison, and droy | the robes of judicial ermine for the political | only answer, | istitution with scal we are not endowed by the c any such functions. Upon the contrary we are pel? As for myself I can prohibited.” 1 have thus carefully and fully gone over the principles as well as authorities which seem to b and tous " that one upon the questions of legislat power, being at all times sol upon o important a subject which 1s asserted Judicla in thus expressed should be made as plain possible. the pressed by the legislative will in the act be- fore is this 1 should be equally unworthy of the post o duty in which I am placed by the constitution if I swerved from the duty which that post placed upon me either from a want of attention to or a just sense of the rights before me or oppressed by a false delicacy in passing upon a question so full of importance to us as a part of the judicial power of this use. Judi No authority unconsidered, but the conclusions arrived alone, the Judge Duffie read an opinion, stating that tion that existing stat- utes were amended in th he bein the canal trustees were created as a corpora tion then the law did not amend any statute affecting the ownership of county property. If county property was placed under the custody of trustees then no statute was amended, He did not think that the fact It is a matter of great delicacy government contrary to the views us. But In a case so clear from doubt cial district; or from any other argument has been overlooked, ut_are based upon as 1 have been led writ will be denled. SOME DEFECTS NOT FATAL. the constitut! to see it deemed the obje canal law with was without merit. ig referred to, and the constitutional power of our own departments, that the view and dream ers be | hes the sti- use th the ive | i~ te assert the jurisdiction of this department of ex- as no ion out 1t | that money was to be expended outside of the county for the construction of the canal | was impi money Walker against Cincinnati, was bonds for a a fatal objection, rovement required outside of the Works of municl the expenditure municipality. 21 Ohio, municipality might railroad. The farther it 15, held that a tssue was pal | of | In | it | built the more beneficial it became, and so | of t he canal. he judge said that he recognized the fo of Judge pointing power of the judges. Ambrose' objections to the ree | ap- | It was a ques- tion of not whether the law was wise or not but had the judges the power to appoint under a simi- such “Illinois, lar added the judge, constitutional provision holds that appointive power exists, the constitution giving | the law “and chancery jurisdiction such ofher judges the power in addition to com jurisdiction as the law may provide, T appointive power may be enjolned by the | legislature upon the judges as a duty, and how evil ever unpleasant the duty may effects must be placed on the legi be, on his the ature. | The other argument advanced s that If this constitutional clause d s not authorize the | legislature to give the judges such a power, then the act relating to the canal commis- sloners may be construed to designate cer- taln individuals, offietal position make the appointment. S pose the legislature sald the seven largest up- | | legal or equitable | termine the amoun! tend that this wouldl invalidate his act “The words In odr constitution conferring powers on the courts, together with such other Jurisdiction as (he leglslature may provide, if they are, to have any meaning at all, must be applied to something other than powers, which are fully covered in the opening words of the clause In support of this interpretation of the law the court read from the case of People vs. Morgan, 90 Ill, 558, in which the validity of an act authorizing the district judges of Cook county to appoint park commissioners for a park district created by the towns of South Chicago, Hyde Park and Lake was called in question. The court in that case held that the act merely referred to the judges as individuals. COURTS SHOULD GO SLOW. Judge Duffie concludes that the designation of the seven district juiges in the act called on them to perform no judicial or official function. They occupled the same position as any other citizen who was offered a trust and the power not being delegated to them as an official duty they could accept or re ject it, and no coercive power could compel them to act. “But the failing of the appoint- ing power,” he continued, “‘would not make the act unconstitutional, though some other steps on the part of the legis- lature may be necessary Dbefore the act of the legislature will become ef fectual. The appointment of trustees by the Judges would either be a duty imposed on the Judges under the constitution or the creation of a board, and in either event would be con- stitutional. ~ The large and independent powers of the trustees, to which objection iz made, would only be exercised by the con- sent of th® people. Objections along this line lack force. While the people may well weigh the wisdom of investing five men with a power and influence never before extended to public officials in this state, it is not for the court to step between them and choice.” Referring to the provision that not more than two trustees could be selected from one political party the court called at- tention to the constitutional clause that no religious test should be made for office as being the only inhibition as to qualifications for office in Nebraska. Political qualifica- tions were required respecting the Board of Iire and Police Commissioners and the su- preme court commission, The canal trus tees are public officers in a certain sense,” added the judge. ‘It is argued that they are mere trustees or agents of a corporation cre- ated by the legislature for the purpose of taking and holding the title, for public use, of certain lands to be used for canal pur poses; that they are a quasi public authority belonging to the municipality of Douglas county. The legislature seems to have been particular in wording this act to divest the canal trustees of all political and govern- mental authority, They are restricted to the maintenance, repair, management and construction of the canal. The only defini- tion applicable to show that they are public officers s that they ate paid from the public treasury.”” The judge held, therefore, that they do not fali” within the constitutional meaning of county ‘offigers. The court in explaining his views o1f these questions said he believed it the duty’of the judiclary to glve any reasonable act of the legislativ department of full foree. Further, he doubtec the wisdom of the district court In declaring an act unconstitutional, except In cases of emergency where the personal or property rights of an individyal, would be invaded Hence, the constitutional question should be referred to the supreme court. While be- lieving the act constifutiona. he was of the opinion that the writ.shpuld not issue. H iid not think a court/ghould make an order it could not enforce.. The act left to the unty commissioners full authority to de- of bonds to be voted on and their diseretion ¥olt be governed by the courts. They could ninlify the whole act by issuing a small ¥rfdgnt of bonds, KEYSOR'S VERSION OF THE LAW. Judge Keysor stated that after an ex- amination of the authorities he also had con cluded that the petition should be d simissed for the reasons stated by Judge Ambrose. He dld not coincide with Judge Ambrose in the view that the law was unconstitutivnal because it sought to amend former acts r. lating to the powers of the county comiiis- sloners over the public funds of the county. He agreed with Judge Duffie in his constriy ton on thie point and also in his opinion that the extraordinary writ prayed for should no be granted for the remson that the discre- tion reposed in the counry commlssion would enable them It they saw fit, to practi cally uullify the writ and set the powers of the court at naught, Were this the only reason, he would hesitate to deny the writ ’tur such matters of publc interest should so who by virtue of their | far as possible be left to the judgment of the people. He concurred in the proposition that the of the district court had no power to their | | appoint canat commissioners, ana under the state constitution were incapable of receiv- | ing such a grant of power. He further added that if the judges were competent un- | dor the”constitution, their acts would still | be void, as the canal commissoners would be public officers and under the constitution must be elected. In this he dissents from | Judge Duffie’s views. If both these proposi- | tions were true, he did not think it neces- sarily made the law unconstitutional nor did he desire to be understood as expressng that opinfon. “Whether the law is constitutional or unconstitutional, the fact of the incapabil- ity of the judges to appoint and that the com- missi rs are public officers who should b elected by the people are sufficient reasons for not granting the writ and for protecting the people from the expense of an election until the legislature amends the law,” he added. Judge Keysor agreed with Judge Duifie that a court should not declare a law ur coustitutional unless the exigencies of the case were such as to make it necessary in order to save the rights of a litigant before the court. If this were the only considera- tion he would declare the law const:tutional and leave the supreme court to decide the potnt. He concurred with Judge Duffie in the opinion that the expenditure of money outside the county for the puliding of the canal did not invalidate the act. He con- curred in the opinfon that if the judges had the rght to appoint commissioners and such commissioners were not public officers it would not be depriving the people of the right of self-government for the reason that the people, if they saw fit to vote the bonds, thereby approved the act of the legis- lature and by their vote ratified the ap- pointment and made the act their own, as | though they had elected the commission The judge did not think that this act was validated by the proviston that the ap- pointment of commissioners from different political partie { the reasoning of Judge Dufi ticular hould be made 1 He adopt in this pa “It is apparent,” sald Judge Keysor, that the questions raised in this case arc very important to the people of th's county and the court is fully advised from the "argu ments, that whatever may be the conclusions reached, this cause will be taken to th | supreme court for final decision. I am of the opinion that if there were no other reasons why this writ should be denied, it ought to be denied by this court as a formal matter, in order that this case might go to the supreme court upon the issues presented to relieve any doubts that might arise as to the power to supersede a writ of mandamu or to delay the election until the case disposed of. The writ should be denied D. C. Patterson, the relator who asked for the mandamus said scision had been to be issued, after the handed down: ‘‘This de- ision places our case really in a better con- dition than if the court had granted the mandamus. We shall appeal at once to the supreme court and intend pushing the suit vigorously. ~ Being the appealing party we will see that the case is not delayed. The de- cision is really two to one In our favor. e BE BIT THE BOY'3S FINGER Mr, Goldsteln Vigorously Resents a Criti- clsm of His Clothing Stoek, a pair of pants. A number of the articles Qisplayed by the proprietor, but the did not suit the prospective cuss tomers, and they plainly stated that would not give one-tenth of what was asked were | prices for them. This enraged Goldstein, and he picked up a hammer, with which he appar ently intended to resent the slur cast on his clothing. The boys, however, did not remain inactive, and soon they and Gold stein and his wife, who was present, were engaged in a fight. It is clalmed by one of the boys, C. H. Bishop, that Goldstein seized one of his fingers between his teeth and attempted to bite it off. This put an cffectual stop to the The boys started to run, but were pursued by Officers Mitehell, Russell and McCarty. The latter officer suc ceeded in capturing Bishop, but the other two got away. He was arrested and charged with disturbing the peace. Goldstein was also put behind the bars, with the charge He denles that h the boy's finger, but the finger bear nce of having been between someone's f mayhem against him bit ————— Su en nie pon, \is year the annual pienic of the Switch- men's union will be held at Coftman, the date having been fixed for June 30. The train bearing the switchmen and their gu:sts will leave the Broadway depot at Councll Bluffs at 9:30 In the morning and thirty minutes later it will depart from the Wehiter street depot in this city. At 11:30 in the morning a large number of bicycle riders will leave Omaha for the picalc grounds, the winuer to Yesterday afternoon three boys entered tha second-hand store of H. Goldstein, on Douglas street, near Eleventh, in search of | they | be presented with a prize immediately upon his arrival. The entire day will be devoted to sports. There will be 2 ball game, a tug of war, a three-legged race, 100-yard race, and any number of athletic contests, with prizes to all of the winners. The prizes are now being exhibited in the Sixteenth street windows of Hayden Bros'. store, B L HARMON’S CLASSMATE | | | WAS Stone Tells Somo Ahout the New Attorney Goneral. Judge Judson Harmon of Cincinnati, O., over whose shoulders President Cleveland has dropped the mantle of United States attor- Dr. les Ouat of School | ney general, was a college classmate and chum of Dr. R. M. Stope of this city. This was some thirty years ago, but ever since | that time the [ est friends two men have been the warm- €0 much so that whenever Dr. tone goes east, fe calls on Judge Harmon, and whenever Judge Harmon comes west, he stops in this city and visits Dr. Stone. Last night in speaking of the appointment of Judge Harmon, Dr. Stone stated that he remembered well the time when Judge Har mon was a poor boy, teaching an Ohio dis- tri school, trying to earn money enough to take Tim through coilege. This was In 1864 | and 1865, The doctor and Judge Harmon | raduated from Denison college, a Baptist school at Granville. The day before the graduation exerclses were to be held a mock | program was circulated through the college. | The next morning ¢1e names of the graduates were read at the chapel services. The name | of Harmon was not upon the list, members o/ the faculty having an idea that e had a part in preparing and circulating the mock | program. Everyboly was indignant, the stu- | | dents feeling hard toward the officers of th school and the members of the faculty feel- ing uone too friendly toward the students. | Harmon was not expelled, but he was told | to be at the college at 6 o'clock the next morning and receive his diploma. He was | there on time, and with him there was a brass band. —_—— SYMPATHY FOR DIBS, Omaha Workmen Pass cent Decinon In His Case, A mass meeting of the workingmen ot Omaha held at Knights of Labor hall last evening to take action on the recent re- fusal of the supreme court to grant a writ of habeas corpus in the case of Eugene V. Debs, The hall was packed with workmen. J. B. Schupp, president of the Central Labor union, presided. Speeches were made by August Blerman, Rev. Alex. F. Irvine and “General’ Kelsey of Industrial army renown. The fol- lowing resolutions, introduced by Kelsey, were adopted osolutions on Re- was Whereas, The supreme court of the Unite | States has denied Eugene V. Debs, president of the American Rallway union, a writ of | habeas ‘corpus, thus denying of an impa and, W him th right il trial by a jury of his peers, Such ereas, denial has swept away | every safeguard that protects the liberty of | the citizen; therefore it Resolved, That we, *the workingmen of Omaha in mass meeting assembled, de nounce the action of said court as arbitrary and unjust and calculated to destroy the fidenice of the masses in the integrity of judiclary of the United States; and, be further we call upon all liberty- | loving citizc the United States to di nounce the action of sald court Resolutions were also adopted expressing it | a5 the sense of the union that the attempt of | the money power to secure control of the mil- | itary was an alarming fact | ‘ Dish Watenman A 3 | H. Myer was arrested late yesterday after- noon by Detectives Hayes and Hudson for aling goods valued at $125 from the Kil atrick-Koch Dry Goods company. Myer has | been employed by the firm as a night watch man, and it seems that during the last two | or thres months he has been systematically robbing the ctore, carrying off a few articles | each night. The firm has had a watch on him for several weeks and finally succoeded in getting evidence of his guilt. A larg quantity of different kinds of dry goods w diecovered In his home at 1410 South Four- teenth street. Myer acknowledged his gullt - Jacksonlans Meard Sitver A meeting of the Jacksonlan club was held last evening at the club rooms in the Patter son block The silver question was the sub Ject of discussion. Judge | chalrman pro tem. W, | James Sheean were the opposing debaters, angdon was made Shoemaker and | that th | the former for and the latter agalnst free | silver. The main arguments on each side of | the money question were presentedc HARPER ~ HAS ~ CONFESSED Owns Up at Last that He Has Dono a Ter= rible Deed. ADMITS THAT HE RUINED MAUD VEST Tells His Friends nt Cheyenno Everything and at Onee the Train tor California to Joln s Wife, Takes CHEYENNE, Wyo., June 7.—(Special Tele- gram.)—John 8. Harper, chief clerk in the surveyor general's office here, confessed to his friends this morning that he was the seducer of Maud Vest, who committed sui- cide In Omaba on Wednesday while recover- ing from an unsuccessful attempt to commit abortion. Letters in the dead girl's effects signed John Sharpe led to Mr. Harper's being im- plicated. The girl was a domestic in Attor- ney General Fowler's house, where Harper, who is Mrs, Fowler's brother, boarded. After making his confession Harper left on an early morning southbound Union Pacific train for Denver, from which place it 18 thought he will go to California. Mrs. Har- per, an estimable lady who has just returned from a California health resort where she has the spent past seven months, accompanied her husband, CORUNER HOLDING AN AUTOPSY, Doctors Investigating the Cnuse of Maud Vest's Death, An autopsy on the remains of Maud Vest, who committed suicide at the Presbyterian lospital the other day, was begun at the morgue at 2 o'clock yesterday afternoon. The physicians in charge are Drs. Somers, Towne and Davis. The inquest will be held as soon as the post mortem is concluded. The jury found that the deceased had come to her death from a dose of polson which had been adminisiered by some unknown person or persons. There were indications to show that a criminal operation had been performed on the woman, but the physicians stated that sho had recovered from the effects of it at the time she died. Senator Hansen of Wyoming, who is be- hind the investigation, is of the opinion that the woman's death was caused by an over dose of some medicine which she had taken. Some color Is given to this by the peculiar symptoms which accompanled the poisoning. Dr. B. B. Davis, who attended Miss Vest, sald general appearances were such as to indicate aconite poisouing, but the symptoms were so pecullar that he was unable to tell exactly what drug was used. —~——— FIGHTING OVER A PILE OF GOLD Coin Found in th ossession of Alleged Crooks Provokes Litigatic There 1s likely to be a fight over the $158 that were found on the persons of John How- ard and Fritz Frank, the two men who are charged with cracking the safe in the offica of the Anheuser-Busch Brewing company and also of robbing the South Omaha saloon keeper, Brosnihan. Of the money $150 was in gold. As the larger amount of the money that was stolon from Drosnihan was gold, he thinks he is the first man who is entitled to the money that is now in the hands of the police and conscquently his attorneys made a demand for It yesterday. Jallor Havey refused to give it up come up for hearing June 14 Tho Anheuser-Busda company make an effort to get the money, and the at- torney for the prisoners says that neither will get it, but that it will remaln the prop= erty of his client The matter wiil will also i — “STRAIGHT” DEMOCRATS, ing of State Central Co for June 21 Chalrman Euclid Martin and 8 Sheean of th central commit Mee wittee Called cretary J. B, democratic state o have called a meeting of e committee at the Merchants hotel June 27. At this meeting the date for holding the state convention will be fixed and measures taken for the organization of ‘“‘straight" county central committees lu all countica, “stralght’