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About The independent. (Lincoln, Neb.) 1902-1907 | View Entire Issue (Oct. 15, 1903)
Sim 1 11 n .Ail! ill! II, I II! 1 1 ,11 I J II .1 II 1 II I www ww w? S3 V7 V Vol. XV. LINCOLN NEB., OCTOBER 15, 1903. - .,- N 2J V ; ' - 1 'CHIEF JUSTICE" SULLIVAN O ' sgtzsr, Feeling that some prominent mem ber of the legal profession in Nebras ka, thoroughly acquainted with the work of the Nebraska supreme court, . could, on short notice, give a better synopsis of the more important work performed by Chief Justice Sullivan than the editors could after weeks of reading the reports, The Independent; called upon Former Attorney General .C J. Smyth, of Omaha, and asked him for a brief statement of the prominent features of such cases as he believed to be of more than ordinary public con cern. V s Although a very busy man for the law firm of Smyth & Smith, at one time attorney general and deputy at torney general of Nebraska, is-counted one of the big firms of Omaha Mr, Smyth found time to dictate to his stenographer the statement below. The Independent had decided correctly: Mr. Smyth's thorough knowledge of what is contained in the Nebraska re ports enabled him to give in a half hour's dictation a succinct, clear state ment which the editors could not have . equaled in two weeks' digging among the records if at all. And this is what the stenographer transcribed from Mr. Smyth's dictation: In the case of State vs. Meserve, 58 Neb. 451-2 it. was contended by the treasurer of one of the counties that he should not be required to pay the express charges upon money conveyed by him to1 the state, but that it should bf paid by the state. , Judge Sullivan who wrote the opin ion said that the law required the county treasurer to pay the expressage and in answer to the argument that the law "was oppressive in that regard and required more of the county treas urer than should be required, he made . this characteristic reply: "Aperson accepting a public of fice takes it With its burdens and whenever those become insufferably oppressive he may resort to that ex cellent and adequate remedy which . a wise legislative foresight has pro vided, viz: a letter of resignation addressed to the proper authority." Blaco vs. State, 58 Neb. 557, 561, was what is popularly 'known as the State Oil Inspectors case. Hilton, the inspector, had embezzled something like ?6,000 of the state's money. The state sued him and his bondsmen. One of the contentions made was that the -law under which Hilton had been ap pointed and had acted was unconsti tutional. Judg: Sullivan answered this contention by saying: "Whether it is void or valid is al together immaterial. Under its au thority Hilton accepted a commas sion from the governor and for near ly two years performed the duties which theaw imposed and received and enjoyed the emoluments for which it provided. For the express purpose of securing to Hilton au thority from the state to perform ',, . those duties and to receive those emoluments th plaintiffs in error executed to the state the bond in suit. In that bond they affirmed that Hilton ha been duly appointed and they . therein undertook to an swer for any failure on his part to perform the duties imposed upon him by the act. . . . Having by their . voluntary acts secured to Hilton the fruits of the law which was in structively corporated in the bond, they are now by plain principle of justice forbidden to deny that the law was constitutionally enacted." Hilton and his bondsmen were held and the amount of the judgment against them was collected by the state. In Cornell vs. .Irvine. 5G Neb. 657, the supreme court said that Irvine could hold two offlce3 at ihe same time under the state and receive two salar ies. It will be remembered that he was one of the supreme court com missioners; that this commission was created because of the overcrowded condition' of the supreme court docket. It would seem, therefore, that he ought :- to have given all his time to the work of the commission, but no, he divided it and gave a part to the work of lec turing before the law. school of the university. He, however, drew the en tire salary of commissioner as well as the salary" attached to his ' lectures. Judge Sullivan dissented froni the judgment of the court. He saidr "I thinkj however, the contract which is based" on the action con travenes public policy and that the position will prove to be a mischiev ous precedent." In Nebraska Telephone Company vs. Cornell, 59 Neb. 733, the contention of the telephone company was that the state did not have any right to pre scribe the rates which it should charge and regulate its business in other par ticulars. This contention was met by Judge Sullivan in the very forceful opinion in which he pointed out very clearly the principles which gave the state the right to "regulate the great monopoly. The case of the State vs. Omaha Na tional Bank will be remembered as one of the cases which arose out of the Eartley embezzlement. The state sued the Omaha National bank for $200,000. Judge Baker tried the case in Douglas county and brushed aside all former decisions of the supreme court bear ing upon the question, and decided that neither the bank nor Millard was lia ble. His services in that regard were subsequently rewarded by an appoint ment to the supreme bench of New Mexico through the influence of Sen ator Millard. It was, in fact. Senator Miliard's first important ofllcial act. When the case came before the su preme court Judge Sullivan wrote the opinion in which was stated with re markable clearness" the reasons why Judge Baker was wrong and why the bank should be held. , Judge Norval for some reason took no part while flfjp nini " A C I"" Republican-Trying 1 rib DiDLb CAShi ?- The Independent has many times called attention to the fact that the real issue in this campaign, after all immaterial and i ide issues are brushed aside, is this: The People against the Railroads. But astute railroad railroad managers early in the cam paign saw that it would not do to al low tne real issue to be met squarely because there are 55 farmers to ev ery 15 or 16 railroad men, including those who are classed as "in trade." So about a month ago one John Rush. rushed into print in the Omaha Bee with a column letter of criticism and " denunciation of Judge Sullivan, because the Tatter irarwtittenainjpTnt ion id the Freeman Bible-reading case, overruling the motion for a "new trial and adhering to the fprmer, judgment.)! To thi3 Hon. T." J. Mahoney made an swer through the columns of the Wrorld-Herald, and an anonymous writer, "Alpha," replied to Mahoney through the Bee; and to this Ma honey rejoined in another World-Herald article. Not only are these letters much too long for reproduction in The Independent, but also it seems clear that, under the circumstances, there is no need , for publishing Judge Sul livan's opinion in full. The issue in this campaign is not the question of reading the Bible in the public schools but whether the -railroad corpora tions now owning the republican lead ers body and soul shall be permitted to continue their double game of fleecing the farmers, through exorbit ant freight rates on the one hand and through expert tax-shirking on the other. But there is some reason for calling attention to this Bible case, because, after the four letters mentioned were published, the republican managers suddenly changed their tactics and be gan a systematic "still hunt" among the Catholic voters, with the view of prejudicing them against Judge Sul livan, yet keeping the matter very quiet because they were afraid an open discussion of the question might align some republican Protestants on Judge Sullivan's side. In this, the re publican managers have shown the same skill as they did last fall when they united the brewers and anti saloon league in the effort to elect Mickey. Section ir, article 8, of the constitu tion of Nebraska, provides that "No sectarian instruction shall" be allowed in any school or institution supported in whole or in part by the public funds set apart for educational purposes." ' Hence, the question of whether a given act constitutes "sectarian " in struction," is the one to be deter mined in the light of surrounding cir cumstances. In the case decided, the teacher had opened school with pray-ei-, reading the Bible, and singing of hymns. In the light of her own testi mony, her acts constituted "sectarian instruction," and the court could do nothing less than grant the writ prayed for. Chief Justice ' Sullivan, and Judges Holcomb and Sedgwick, have no power to change a plain provision-of the constitution. If the pro vision is bad then the burden falls upon the constitutional convention of 1875, and not upon the court. But in refusing to grant a rehearing, Judge Sullivan said: "The. decision doe i not, however, go to the extent of entirely excluding the Eible from the public schools. It goes only to the extent of denying the right to use it for the purpose of im parting sectarian instruction. The pith of the opinion is in the syllabus, which declares that 'exercises by a teacher in a public school in" a school building in ' school hours, and in the presence of the pupils, consisting "of the reading of-passages from the Bi ble and in the singing of songs and hymns and offering prayer to the Deity, in accordance with the .doc trines, beliefs, customs or usages -of sectarian churches or religious organ izations, are forbidden by theconsti tutlon of , this state. Certainly the Iliad . may be read, in the schools without inculcating a belief in the Olympic divinities, and the Koran may be read without teaching the Moslem . faith. Why may not. the Bi ble be also read without indoctrining children in the creed or dogma of any sect? Its contents are largely histori cal and moral. Its language is tin equaled in purity 'and elegance. Its style has never been . surpassed. Among the classics of our literature it stands pre-eminent." Catholics urge, however, that the King James version is a "sectarian book," , and that, therefore, the mere reading of it constitutes "sectarian in struction!.' within the meaning of the quoted constitutional provision. This was not the vjtal point at" issue in the case at bar, but Judge Sullivan said by way of dictum: "The law does not forbid the use of the Bible in either version in the public schools It is not prescribed either by. the constitution or the stat utes, and the courts have no right to declare its use to be unlawful because it is possible or probable that those who are privileged to use it will mis use the privilege by attempting to propagate their own peculiar theol ogical or ecclesiastical views and opin ions.' The point where the courts may rightfully intervene, and .where they should intervene without hesitation, is where legitimate use has degen erated into abuse where a teacher employed to give secular instruction has violated the constitution by be coming a sectarian propagandist." In short, as The Independent has always held, to forbid the mere read ing of the Bible in the public schools, is to tacitly admit that it is an in spired book, and, therefore, to break down the contention of atheists who would debar it. If it is not the Word of God, then there can be no more constitutional reason for debarring it than for excluding Webster's diction ary, because some patron of the school prefers Worster's or the Standard or Century. And here Judge Sullivan says: - - , "The question whether its legitimate use shall be continued or discontinued U an administrative, and not a judi cial question. It belongs to the school authorities, not to the courts." Judge Harrison placed his vote for reversal upon a very immaterial ground. The action of Judges Harri son and Norval is generally regarded ' as a dodge. Judge Sullivan never dodges. , ' ' "" Wheu the case went back to the dis trict court Judge Baker, true to his friends, the Omaha National bank and Senator Millard, affected to misunder stand the order of reversal and in stead of granting a new trial to the state entered up another judgment in favor of the bank. The supreme court was applied to for a writ of mandamus to compel the judge to obey its man date. Again Judge Sullivan wrote the opinion of the court in which he showed his utter rearlessness of the great influences which stood "behind the bank. Speaking of Judge Baker's action in rendering a judgment against the state, he said: "In rendering judgment on the verdict which had been discredited and condemned the district court failed to execute the mandate of this court, it becomes our duty to en force obedience by mandamus, (p. 235.) . . . In disregarding our deci sion and dealiug with the verdict as valid and binding on the parties, the lower court violated an implied command which was clear, definite, certain and intelligible, as though it had been formally expressed in precise terms. A peremptory writ will issue directing the district court of Douglas county forthwith to va : . cate the judgment rendered by it in i favor of the defendants, the Omaha . National Bank and J. H. Millard. ; and to forthwith award a new trial of the action." (p. 236.) This was the language of the fear less judge' who wariibTTKqWmrwr caring who, the losing party was. Judge Norval, of course, dissented. .. ' This case- came before ,the supreme court again. It is reported in the 93 N. W. 334. The court relieves Senator Millard and the bank, but in order to do it it was necessary to overrule prior decisions, disregard principles as old as the hills, and to create a new fule with respect to embezzlement of pub lie funds. Many lawyers of different political faiths regarded this decision as one of the dark spots in the judi cial history of Nebraska, but Judge Sullivan contributed nothing to it. On . u.e contrary, he stood like an oak for what he conceived to be right. His dissenting opinion is a marvel of clear ness of expression. , : Speaking of the action of the bank and Millard Le used this language: "Surely defendants cannot, with , any show of reason, insist tnat the unauthorized payment of the war rant, the wrongful act which they themselves obeyed and participated in, operated as a practical enlarge ment of the treasurer's authority. As well might a parricide ground an appeal for compassion or clemency on the fact that he was an orphan. Bartley's real authority was to dis burse the public funds upon valid warrants and not otherwise. He had no semblance of authority to pay an invalid warrant and yet this is precisely what he did. He not only paid out the state's money up on a warrant which proclaimed its " own illegitimacy, but he paid it out directly to the defendants, the hold ers of the warrant How they could be legally innocent in receiving money which they knew belonged to the state, and which was turned over to them without the actual or apparent consent of the state, is somehing which I have never been quite able to understand." Neither have the people. But, the state lost the money. JHad the bench been cfnposed of Sullivans the state would have won, and the taxpayers would have receive! their own." in tne case or aiaie vs. u., u. i. Pacific, 61 Neb. 545, the question was presented as to whether or not the federal court could restrain the state from suing in its own courts. Attor ney General Trout thought it could and consequently asked the court to dismiss a case pending in behalf of the State vs. tho R. I. road on the. ground that the state was enjoined by the federal court from prosecuting the case. The supreme court refused to do
