The independent. (Lincoln, Neb.) 1902-1907, October 15, 1903, Image 1

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Vol. XV. LINCOLN NEB., OCTOBER 15, 1903. - .,- N 2J
V ; ' -
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
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
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
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
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