OMAHA DAILY BEE.
ESTABLISHED JUNE 19 , 1871. OMAIIA , THURSDAY MOllNITSTGr , JA trAHY 13 , ISOS-TWLEVE TAOES. SINGLE COPY JiTVE CENTS.
T J POLICE
Judge Scott Holds the Charter Provision to
Be Unconstitutional ,
GOVERNOR m 10 RIGHT TO APPOINT THE MEMBERS
Court Holds Tlmt the Board Which Hns Boon Acting Hns No Legal Existence -
once and That the Plain Duty of the City Council is to Proviclu
Forthwith for the Government of the Fire and Police
Departments Full Text of the Opinion.
Judge Scott dccUcd yesterday morning that the law providing for the appointment of
a fire and police commission for cities ot the metropolitan class la unconstitutional and
void , nml that therefore the men who are holding under Goveruor Holcomb arc acting
without authority of law. The opinion was handed down In the presence of e largo
number of clcy officials nnd citizens.
The suit which brought about the dec'slon rendered by Judge Scott was o mandamus
brought by Frank McCoy and Robert Olmstrad1 In behalf of the people. Application
for the writ was made some days ago , and was argued at the tlmo ami was taken under
advlsemont by the court. In their arguments the applicants centended that the law
passed by the legislature delegating to the governor authority to name officers for
thu city of Omaha was at variance with the constitution ot the state and was a usurpa
tion of the principles of the rights of self-government. In passing upon the case , Judge
Scott sustained this position end went oven farther , as the following opinion will show.
The- court holds that If the legislature codld IMSS a law delegating to the governor the
power to appoint members of the fire and police commission It could also delegate au
thority to the state executive to name the mayor nnd other municipal officers.
In denying the writ of mandamus Judso S.cott goes upon the theory that the city
Is without any legally appointed fire and police commission and that consequently theco
Is no reason why a writ should Issue In the premises.
Judge Scott in Ws opinion holds that the mayor , acting In conjunction with the
city council , has authority to provide for the government of the ( Ire nnd
police departments and that they will do so If they desire to uphold the laws as passed
by the legislature of the state and approved by the governor , the present existing
pretended law to the contrary notwlthstand Ing.
J TI3XT ( lie Till : - COUNT'S ( UM.VHI.V.
1,1 no 11 f Ui-Hsonlnn' HmiiloyiMl * nnd
AndtoritlcN Ili-iieniloi ! On.
The full text of Judge Scott's decision , with
his conclusions follows :
"lu the district court ot Douglas county ,
Nebraska. State of Nebraska , ex. rel. , Krauk
ii. McCoy an.1 Robert II. Olmstcd , rclators ,
against Frank E > , Moores , mayor of the city
ot Omaha , et. al. , respondents. Opinion of
the court :
"On the 4th day of January , A. D. , 1S9S ,
the relaters presented to this branch of the
district court their duly verlllcd application
for ft peremptory writ of mandamus against
the respondents , commanding the respondent
mayor to appoint four citizens ot said city to
the four vacancies existing In the offices ot
Fire and Police Commissioners of said city
In accordance with the provisions of section
107 of chapter xllA of the Complied Statutes
of 1SD7 of the State of Nebraska , and that
the other respondents as members of eald
council shall , at a council meeting , act upon
such appointments so to be made by said
mayor , and that they make due return to this
court ot their compliance with said perempt
ory writ of mandamus. The grounds upon
. which the writ Is prayed against respondents
among other things are :
" 1 Tlmt the city of Omaha Is a city within
enld county of Douglas , having more than
60,000 Inhabitants , organized nnd existing
Tinder nnd by virtue of chapter 12A o the
Compiled Statutes ot Nebraska for the
year lbU7.
" 2. Tlmt the rclntors , Kranl : L. McCoy nnd
Jlobert II. Olmsted , are each citizens ot
the said city of Omaha nnd uro taxpayers
" 3 Tlint the respondent , Frank E. Moores ,
tvnH , on the 20th day of April , 1S-J7 , duly
elected as mayor of the said city of Omaha ,
nnd , having duly qualified according to
law , entered Into the discharge of his du-
llea as such mayor and haa continued to
ct anil is now acting us such mayor , and
that the respondents , William W. Ulngliam ,
William F. Bcchcl , Louis JJurmester.
Charles O. Lobeck. Myron D. Karr , ISrnest
Blunt , David T. Mount. Frank J. Hurkley
nnd George \V. Mercer , were , each of them ,
on said 2uth dny of April , IS'Ji , duly elected
as councilman , for said city of Omaha , and
having qualified therefor , according to law ,
duly entered upon the discharge of their
duties as mich counellmen and have since
ithen continued to act -and are now acting
as such cDuncllmcn ,
COMPOSITION OP nOAUD.
" 4 * Tlmt there Is a department of the said
olty Of Omaha known and existing under
nnd by virtue of said chapter 12A of said
Compiled Statutes of Nebraska of 1837 , as
the Hoard of Fire and Police Commission-
era of said city , which said Hoard of Fire
and Police Commissioners , as now consti
tuted , IH composed of the respondent ,
Frank 13 , Moores , and of four persons pre
tending to be and acting as the other
members thereof , to-wlt : D. D. Uregory ,
/William / C. Uullnrd , James H. Peabody uml
31 13 L. llcrdman. Tlmt on or about the
39th day of March , 1S97. the Hon. Silas A.
Holcomb , as governor of the state of Nol -
l < rasKa , assumed the power and pretended
to appoint and commission the sold D. D.
Gregory , William C. Hullard , James H.
I'cahoily and U. 13. I. . . Herdmiin under theE
revisions ot said chapter 12A to be rnem-
E ers of said Fire and Police Hoard for tlia
respective terms stated In section 107 of said
chanter 12A , and thereupon the said D. D.
Gregory , William C. Hullard , James H.
Peabody and It , K. I * . Herdnmn , without
any other appointment or authority , and
claiming o other tight than nn appointees
of salil governor as nfoiesald , acting to-
KOther , entered Into the possession of the
olllecs and records of s.ild lioaid of Flro
and Police Commissioners , ninl assumed
thir powers , duties and functions of ds Jure
members of said board , and since about the
jath day of March , 1697 , the mid U. 1) .
Gregory , William C. Uullnrd , James II.
( Peabody and H , 13. L. Ilenlm.in have been
in exclusive poss ? slon of eald otllces of
j.'lro and Police Commissioners of the city
of Omaha , to which they wore making
claim , and continue today In possession of
said olllces without any other right , claim
nr niiOmrltv nnd without anv rk-ht In law
thereto.
" 5. That the relaters , Frank I > . McCoy nncl
Itobert II. Olmsted , after stating to the
respondent , Finnk B , Mooies , as mayor
of fnld city , and to a majority of the other
respondents , as members of the city council
of said city Hint under and by virtue of
our constitution and other supreme laws ,
nnd of HiiId chapter 12A , .1 vacancy exists
In each of the four olllcos of Fire nnd Po
lice Commissioners In sutd city of Omaha
> iow occupied by said 1) . D , Gregory , Wil
liam C. liullard , James II , Pcubody nnd
Jl. K , L. llerdmnn , for the re.inon that
under paid laws thu legislature hud no
power to authorize the governor to make
euch appointments or any appointments to
eald oltlecs , and that tha governor had and
linn no power whatsoever to luwfully 1111
eald olllccs , but that under said laws mien
power of appointment to said otllces of
Flro nnd Police Commissioners of the city
of Omaha Inhete-s , In accordance with the
lifiht or principle of local self-covermiiem ,
in the mayor of Omaha , bubjcet to thu
confirmation of hla appointees by the coun
cil of said city '
"This mat'e ws proicnttd 11 cp n o urt on
the 4th day of January , lA , D. , 1SOS. by the
relaters , the respondents not appearing , and
the case wan tukoa under advisement by the
court.
VITALi QUESTION.
"The vital question , shall the peremptory
writ of mandamus go ngalnst respondents an
prayed , Is ono of more than ordinary Im
portance , In that Jta tap root reaches Into the
very heart of local eelf-governmrnt for Its
tuatcnanco and support. If thin bo not BO ,
< hcn the writ should bo denied , because , as
the case la presented , rolators' right to the
. writ rests upon the ground that Its Issuance.
8 prayed , la demanded , as a means provided
i > y law , to uphold and perpetuate local non
government for the people of Omaha , and
I that a denial of the writ would jeopardize , If
'
, not In fact destroy , the right of local govcrn-
I mcnt to the citizens of Omaha. Hence It be
comes necessary to consider and pass upon all
the' questions Involved the name as It the
hearing was by quo warranto proceedings
against the present so-called members of the
i Fire nnd Police Commleslon upon the grounds
I relied upon for the writ In this case ; that is ,
' the court before granting the peremptory
wilt should bo satisfied that on a hearing In
quo warranto proceedings against those per
sons the court would , upon the grounds al
leged by rclators , oust the persons now
claiming to bo official members of the Fire
end Police Commission. Not only so , but the
act commanded by the writ to be done by
respondents should be such an act as It Is
their legal duty to do , and for the neglect
of which there Is no other lawful means of
redress.
"Section C45 , chapter HI , Compiled Statutes
of Nebraska , 1897. provides that :
"The writ of mandamus may he Issued
to any Inferior tribunal , corporation , boarder
or person to compel the performance of an
act which the law specially enjoins ns a
duty resulting- from an olllce , trust or sta
tion.
"Section C40 ot the same etatute provides
that : This writ may not bo Issued In any
case where there Is a plain and adequate
remedy In the ordinary course of the law , '
and section (548 ( provides that 'When the
right to require the performance ot the
act Is clear , and It Is apparent that no
valid excuse can 'bo ' given for not perform
ing It , a peremptory mandamus may be al
lowed in the first Instance. In all other
cases the altcrnattvo writ must first bo
Issued. '
"Keeping these sections of the statute In
mind , ao also the fact that originally It was
a prerogative writ which Issued from the
court of queen's bench and the pruning and
grafting It hap received In Its passage down
the long line of common law and various
state courts and statutory enactments wo
deduce the following essential pro-existing
facts to the granting of the peremptory writ ,
towlt :
"I. The net , the performance of which Is
sought to ho compelled by the writ , must
bo an act which the law specially enjoins
as a duty resulting from the olllce , trust
or station of the party mandamused.
" 2. That the neslect of the party mnn-
damused to perform th ? act which the
law specially enjoins ns a duty resulting
from such olllce. trust or station , would
leave the relaters without nny other way of
redress.
RIGHT TO RC.MROY.
" 3. That the right to the remedy by per
emptory mandamus to compel the perform
ance of the act must be clear , and It must
bo apparent to thu court that no valid ex
cuse can bo given by the. party man
damused for not performing It.
"Tho act sought to bo enforced by this
proceeding Is the appointment by respondents
of four Flro and Police Commissioners , but
this Is only seeking a moans by which to
accomplish an ultimate end the ousting of
the present Incumbents from those offices
and hence the court will not grant the
means sought for that purpose , unless such
means when so obtained will , as a matter of
right , and under the law , justly effectuate
fluch purpose. Therefore , It follows that
whatever lawful reasons might or could bo
urged by the present Incumbents In the odlco
of Flro and Police Commissioners , why they
should not bo removed therefrom , as well as
all lawful reasons which might or could bo
urged 'why they should bo removed there
from , should bo fjilly considered by the court
In determining whether the peremptory writ
of mandamus should go against respondents.
"Section 166 of the act known as the Omaha
charter , passed by the legislature In 1S97 ,
provides that : "In each city of the
metroplltan class there shall tic a board of
IKIro nmlPoco ) | Commissioners , to consist
of the mayor , who shall bo ex-officlo chair
man of the board , and four electors of the
city who shall bo appointed by tbo gov
ernor. "
"Section 1C7 provides , (1181 ( : 'Immediately
on the taking effect of tns act the governor
shall appoint for each , clty governed by this
act four commissioners , not more than two
of whom shall be of the same political faith
or party allegiance , ono ot whom shall bo
designated to servo until the first Monday of
April , 1SOS , and ono to serve until the first
Monday of Ajifli ; 1S99 , and ono to servo until
the first Monlny of April , 1900 , and ono to
servo until the first Monday of April , 1901 ,
and on thu last-Tuesday In March , In 1S9S ,
and on the same day In each year thereafter
the governor shall appoint ono commis
sioner in cacti city governed by this act , to
take the place of the commissioner whose
term of office expires on the first Monday In
April following such appointment , except
where appointments nro made to fill
vacancies , In which case those appointed
shall serve the remainder" the term of the
persons whose vacancies they are appointed
to till. Whenever a vacancy shall cccur In
any board of 'Fire and Police Commissioners ,
either by death , resignation , removal from
the city , or any other cause , the governor
shall appoint a commissioner to fill such
vacancy. '
"Suction 1C9 provides : 'All powers and
diUles connected with and Incident to the ap
pointment , removal , government and discipline
of the officers and members of the Ore and
police departments of the city , under such
rules and regulations as may be adopted by
the Board of Flro and Police Commissioners ,
shall be vested lu and exercised by Bald
board , A majority of eald board shall con
stitute a quorum for tuo Irantuctlro of busi
ness , LJeforo entering upon their duties each
of Mid officers shall take and subscribe an
oath , to bo filed with the city clerk , faith
fully , Impartially , honestly and to the bes
of his ability to discharge his duties us a
member of said beard , nnd that In making
cppolntmcnts or considering promotion or re
mo\nls ho will not be guided or actuated bj
political motives or Influences , but will con
sldcr only the Interest of the city , and the
success and effectiveness ot said department
The Hoard of Fire and Police Commissioners
shall have power , sad It Shall bo tuo duty o
eald beard , to n > polnt a chief ot the fire dc
ixirtment and such other officers of the fire
department ns may be deemed necessary fo
Its proper direction , management and rcgula
tlon , all ot whom shall be electors of such city
and under such rules and regulations as may
bo adopted by said board , Salil board may re
niovo such officers or any of them whcneve
said board shall consider and declare sue !
removal necessary for the proper manage
mcnt or discipline or for the more effective
working or service of said department. I
shall bo the duty or policemen to make o
dally report to tuo chief of police of the time
of lighting and extinguishing ot all publl
lights and lamps upon their beats and also
any lamp that may be broken or out of repair
They shall also report to the same office
any defects In nny sidewalk , street , alley o
other public highway , or the existence of Ice
or dangerous obstructions on the walks or
streets , or brcok In any sewer , or disagree
able odors emanating from Inlets to sewers
or any violation of the health lawa or ordl
ranees of the city. Suitable blanks for male
Ing such reports shall ho furnished to the
chief of police by the city electrician acii
health commissioner. Such reports shall be
by the chief of police transmitted to the
city electrician or health coramls
sloner as shall he proper , am
In case of violation of law or ordinance the
policemen making report shall report the
lacts to the city prosecutor. The Hoard o
Flro nnd Police Commissioners shall employ
such firemen and assistants , as may bo proper
and necessary for the effective service o
< hLi department , to the extent and llml
that the futida provided by the mayor am
council for that purpot-a shall allow. The
Beard of Flro cad Police Commissioners
shall have the- power aud It shall be the dutj
ot said board to appoint a chief of police
and such other officers and policemen , .ill o
whom shall be electors of such city , to the
extent ttat funds may bo provided by the
tr.ayor and councl1 to pay their salaries , am
as may be necessary for the proper pro
tection and efficient policing of the city , ant
as may be necessary to protect citizens am
property , and maintain peace and good or
der. The board may appoint euch number o
police matrons not to exceed two. whose
duties shall be defined .by the police board
The chief of police and nil other police
officers , policemen end police matron , shal
be subject to.removol by the Board of Fire
anj Police Commissioners , under such rules
and regulations as may be adopted by sail
beard , whenever said board shall consider
and declare such removal necessary for the
proper management or d'cclpllnc , or for the
more effective working or service of the
police department. No member or officer o
the police or fire department shall he dis
charged for political reasons , nor shall a
person be employed or taken Into cither o ;
will departments for political reasons. Be
fore a member of the police or fire depart
ment can bo discharged charges must bo
filed against him before the Board of Fire
and Police Commissioners and a hearing IwO
thereon , sad an opportunity given such mem
ber to defend against euch chargco , but this
provision shall not be construed to prevent
peremptory suspension of such.member V > >
his superiors In case of misconduct or neglecl
of duty or disobedience of orders. "Whenever
any such suspcinsloa Is made , charges nhal
be at once Hied before the Board of Flro and
Police Commissioners by the person orderIng -
Ing such suspension , and a trial had thereon
at the second meeting of the boird there
after. It shall be the duty of the cadi
Board of Flro and Police Commissioners to
adopt .such rules and regulations for the guid
ance of the officers and men of said depart
ment , for the appointment , promotion , re
moval , trill or discipline of said offlcera
men and matron as said board shall con-
cider proper and necessary. The board shal
have the power to enforce the attendance
of witnesses and the production of books ani
papers , and to administer oatlls to them In
the E.ime manner and with like effect and
under the same penalties , as In the car.'a
ot magistrates exercising civil end criminal
Jurisdiction under the * statutes of the state
of Nebraska. The board shall have such
other powera and perform such other duties
as may be authorized or defined by or
dinance. "
PROVISIONS OF THE STATUTE.
"Section 06 provides that each fire and po
lice commissioner shall receive a salary o
J400 per annum ; that the bonds of the com
mlsslcacra of fire and police shall be approvei
by the governor ; that each policeman eh
receive not exceeding $73 per month , am
not less than JG5 ; that each officer of po
lice and fee department or engineer of flro
engine under the rank of chief or nsslstan
chief stall receive not exceeding $90 per
month. T'JO salaries arc all paid out of thi
city treasury , as provided by the charter.
"Kceolng these provisions of the city charter
tor In view , as they are the bases of this
action. It will bo neon that , as before stated
the ultimate object to be attained by these
proceedings Involves a question most vita
and momentous , In that It Involves the rlgh
of local self-government by the Inhabitants
of the city.
"If the right of local municipal governmen
Is an Inherent right of the people , then It
Is a.s much of an inalienable right as l < 3 the
right of the people to lite , liberty and the
pursuit of happiness , and the state cannot
take that Inherent right of municipal self-
government from the people any more than
it can take from them their Inalienable
right to life , liberty and the pursuit of hap
piness. Nor could the people of the munici
pality by any means surrender that right
to tbo legislature of the state , or bind them
selves In that regard by a constitutional pro
vision alienating such right , because what Is
Inalienable cannot bo allocated ; to hold other
wise would bo an Inconsistency so glaring and
monstrous that It would not bo tolerated.
If the people of this state had declared In
their constitution 'that all men are' not 'cre
ated equal ; ' 'that they nro' not 'endowed by
their Creator with certain Inalienable rights ,
among which are life , liberty and the pur
suit of happlnevs , ' would the people or the
state be eatepped thereby from claiming their
rights ao American freomun , under the dec-
Is rat I cm of American Independence the
American' * ! Mugna Charta and Bill ol
Rights ?
CONSTITUTIONAL GUAKANTEE.
"The people of this state In 1S75 adopted
the present state constitution. Section 1 , ar-
tlclo'l , thereof , provider that : 'All 'persons '
are by nature free and Independent , have
certain Inherent. Inalienable rights ; among
these are lllo , liberty and the pursuit of
happiness. To secure these rights and the
proteoton of property , governments are In
stituted among the people , deriving their
just powera from the consent of the gov
erned. ' This provision of the constitution
did not create a new right In the people.
Nor did the declaration of Independence In
that regard , These rights toeing Inherent
In the people are the endowments of Al
mighty Oed ; the people nro and have been ,
since the first man , Adam , was created ,
endowed by their Creator with these rights ,
ami hcnco they arc Inalienable ; and hcnco
they are greater than all constitutions' , , all
legislature ) ; and hence any act of any legis
lature abridging or taking away these In
alienable rights Is absolutely null and void ,
no matter what the constitutional provi
sion may or may not be. These rights need
nu constitutional recognition or declaration ;
they enforce themselves , ' 'because ' they are
the fundamental and unchangeable founda
tion of a republican form of government
an Inheritance of a free people from the
foundation of the world to the end of time.
A legislature may do a great many things ,
but It cannot repeal God's endowments upon
man with those Inalienable rights. Jt can
not repeal , the declaration of American In-
dependence.
"Is not a municipal government one of
the 'governments Instituted junong the people
ple to recuro these rlghtw ? ' Are they not
essential to that end ?
BASIS OP FKEB GOVERNMENT.
"In Draper's Civil Policy of America we
are < old thit the early settlers of this coun
try first formed villages for the better protection -
toction ot their liberties ; then towns , then1
cltlc , then colonies , thcfn 'atntes , and then
the republic , and' that ( ho fundamental Idea
of a frco government IJke cure , and to pcr-
pctuato such ! government , If and always has
been the right of the people to looil mu
nicipal government. i
"M. IjcToequcvlllp , In hW Democracy In
America , says : 'Local assemblies ot citizens
constitute the strength lot ttco nations. Mu
nicipal Institutions are. to liberty what pri
mary pchools are to stlencjcj they bring It
within the people's reachjlhcy ; teach men
how to ueo and how snjoy It. A nation may
establish n system of frco government , but
without the spirit of municipal Institutions
It cannot have the spirit ot liberty. '
"Speaking of this noted author , Chancellor
Kent eays : 'That DoTe < ; nuevllle , one of the
most philosophical nnd fair ot foreign ob-
scrvcrt > , was much struck with the Institu
tions of New England towns ; and considered
them as small independent republics In all
matterl of local concern and as forming the
principle of the Ufa ot American liberty
existing at this day. '
"Judgo Dillon , at page 1C , volume I , third
trillion ot his Municipal Corporations , pays ;
'Thn policy ot creating local public and mu
nicipal corporations for the management of
matters of local concern runs back to on
early period ot our colonial history , Is ex
hibited In all our legislation , and expressly
or Impllcdly guaranteed In our state consti
tutions. The elective franchise In these
local republics Is not as was the case until
recently In England a privilege dependent
Upon custom or usage , or confined to cef-
tnln claraes , but Is uniform and universal ,
extending to all of the adult male citizens.
The effect of thU policy of establishing
cities , towns nnd districts of country Into
bodlea politic , and Investing the citizens
thereof with the power of self-government ,
has , upon the whole , bqen most happy. '
SMALLEST DIVISION SACKED.
"In Pcoplo against Albcrtuon , C5 N. Y. ,
at page 57 , the court ray'The ! ' right of eelf-
government lies at the foundation of our In
stitutions and cannot bo disturbed or In
terfered with , even In respect to the small
est of the divisions Into which the ctnto
Is divided for governmental purposes , with
out weakening the cntlr6 foundation ; and
hcnco It Is a right not- only to be carefully
guarded by every department of the govern
ment , but every Infraction or Invasion ot It
to bo promptly met and condemned , espe
cially by the courts , when such acts become
the subject of judicial Investigation. '
"Mr. Jefferson , In volume v , page 525 , of
his workd , epeaklng of municipal govern
ment , says : 'These | lttle republics would
bo the mala strength of the great one. Wo
owe to them the vigor given to our revolu
tion in Its commencement In the eastern
statoa * could I. once see this I
should consider It the dawn of the salva
tion of the republic. '
"Pomcroy , In his Constitutional Law , sec
tion inn. Dennett's cdltloil.i sneaking of the
contending forces for the supremacy In this
country , says : 'The whole civil polity Is
thus based ! upon two grand Idcaa as Its foun
dation and supports ; the Idea of local self-
government , aiui the Idea ot centralization.
The first was borrowed from the tribal cus
toms of the Saxons and other Germanic
tribes who Invaded western Europe. The
second Is the heritage of Home. The one
Is the safeguard of liberty ; -tho other the
source of power * * * The history of the
world le the history of struggles between
these contending forces. '
"Respecting local municipal self-govern
ment In thly country and the centralized gov
ernment In France , Judge Dillon , In his work
O'bovo referred to , section 10 , says : 'Franco
Is a highly centralized government. The
state there Is everything ; the people , noth
ing. Municipal Institutions , -with a demo
cratic element , or with the power of Inde
pendent local Bolt-government,1 belong , then ,
to the past. The central power governs and
rcgulatey everything. ' 1'Kli" centralization
of power In France , of which Judge Dillon
speaks , ibrought on the communistic revo
lution which .drove Napoleon III from the
throne.
ESSENTIAL TO GOOD GOVERNMENT.
" 'How different , ' says Dillon , supra , 'with
tha decentralized system of government In
the United States , where each local constit
uency chooses Its own officers ; each road
district , school district , Village , town , city
and county administers Its own affairs by
the people and for the peorlle , ' citing Barrett
ngalnst Brooks , 21 Iowa , 141 , 151. Continu
ing , Judge Dillon , In section 11 , say. ? : 'The
civil territorial divisions erected Into cor
porations with definite powers of local ad
ministration , and the cxtciiblon of the right
to vote for officers , to all who are to tic
affected by their action , arc due that famil
iarity with public affairs and 'that love of
liberty and regard for private rights and
property , which are characteristic of the
be.3t government In Europe , Great Britain
and the best In America , the United
State. ' . ' '
"A municipal corporation ( Is defined to be
'an Investing the people of\a placn with the
local government thereof. ' This definition and
description of a municipal' corporation , sajs
Justlco Nelson , lu People against Morris , 13
Wend. , 325 , 334 : 'Is the' most appropriate ,
and Is Justified by the history of these In
stitutions and the nature of- the powers with
which they were and are Inverted. '
' Oaco more : Pomeroy , In speaking of the
forced irotoratlon to the people of local
municipal self-government from the Eng
lish nobility , says , at section 1C4 : 'As these
lo nl dlvlslonc , with their gatherings of the
people , and their territorial Jurisdiction ,
preserved the boedp of liberty In England ,
and finally triumphed over tha crown In
tno progress of their development Into a
complete representative form of government ,
so are the same am ? similar local communi
ties among us necessary to the preserva
tion of liberty and the maintenance ot that
duo balance which ehall ht once prevent
anarchy and absolutism. '
WOULD DC BOLD MOCKERY.
"Judgo Cooley , In People against Hulburt ,
24 Mich. , 44 , said : 'It would bo the boldest
mockery to speak of a city as possessing
municipal liberty where the state not only
shaped Ha government , ibut at discretion
sent In Its agents to administer It. '
"Tho foregoing principles are not only rec
ognized , "but emphasized by the supreme
court o.1 Indiana , volume 118. 382 , In a meat
ably considered case 'by Judge Coffey.
"That eminent writer. Prof , Llcbcr , rays :
'Self-government , general a/3 / well as local ,
Is Indispensable to our. liberties. ' Thomas
Jefferson , speaking of the local governments
in New England , Baysf'Thesp wards , called
townships In New England , are the votal
principle of their government , and have
proved thomselvco the wisest Invention over
dovlscd by the wit of ttfaii for the perfect
exerclso of self-government , [ and for Its pres
ervation , As Cato then boncluded every
speech with the words { "Carthago delenda
est , " FO do I every oplnlqu , divide the county
Into wards. ' J
"Elliott. C. J , , In State ei rel Jameson ct
al against Denny , mayor , yolumo 118 , page
402 , Michigan teporta , dommentlug on these
wonli of Jefferson , wild ; { These words of
wisdom Influenced our people and the from-
ors of our organic lai' , dud they should
eo Influence our courts ( thai they may not
depart from the fundamental principle of
self-government. The Ighj of local self-
government le. Indeed , oao of the strongest
and most efficient chocks In our system of
chocks and 'balances ' which Jqhi > Adainw and
the other great stitoicicn .of his time so
earnestly labored to pfrfpq and establish. '
'Municipal corporations' ' mejins the right of
a freeman the right ( o vote ,
"J have said that the Declaration of Amer
ican Independence , under * which tbo Inallen.
able right of the ' people to life ,
liberty and property Is guarantee , ! , and
under which the right to local municipal
tclf-government Is an Inherent and -therefore
an Inalienable right , U a fundamental law
of the atato without a constitutional rec
ognition ; In fact , that tbo people are in
hibited from making a constitution abridg
ing or abrogating tbp .fight of the cltUcnn
to such local inunlcjpal self-government ;
that If such a provision was In the conntltu.
tlon U would bo absolutely void , anil of no
effect.
REQUIRED OK NEDRASKA.
"Congress , on Iho 19-rh day ot April , 1801 ,
gassed an act to 'enable the people of No-
jrat'Ua to form a conetlfutlon and state
government , ' etc. , In eeqHon 4 , of which wo
find 4bo following : 'Providing , that { be con-
otltutlc-n , whod formed , sMlf bo republican ,
J and not repugnant to the constitution o
the United States and tbo principles of the
Declaration ot Independences'
"Judge Cooley , In his Constitutional Llm
Itatlct 8 , epeaklng of the right ot local mu
nlclpaselfgovernment anil the constitution
of the states respecting that right , says
'If not cxprcsrly recognized , It Is still to
bo understood that all thcso Instruments
are framed with Its present existence am
anticipated continuance In view. " Opinion
per Gray , J. , Itnthbono against Wlrth , 160
N. Y. , 4G7.
"In Rathbono against Wlrth , 0 Hun. ( N
Y. ) , the court says : 'In Interpreting the pow
era of the legislature under the constltu
tlon , courts arc not confined to the strlc
letter of that Instrument , nor are they compelled
polled to point out the exact article , eec
tlon , clause or phrase , which grants or dc
nlcs the particular power ; for there nr -
some things so contrary to the entire pur
pose and spirit of the constitution that the }
must bo said to conflict with It. ' And ngaln
that court says : 'The living spirit of the
constitution , that which gives It force am
attraction , that which makes It valuable
and draw ? to It the affections of the people
may also supply nn Interpretation of Its
words , and Its political tendency , co-called
may ho considered In Interpreting It ; ' tha
the legislature cannot toke from the people
by the passage of a statute , the power o
the majority to govern , nnd this because o
the principle ot local self-government which
Is recognized 'by ' iho constitution , nnd generally
orally , as a fundamental principle In Amor
lean political institution ? ; ' that 'local self
government means that local affairs shall be
decided and regulated by local authorities
nnd that the citizens of the different polltl
Ml divisions of the state shall have the
right to control their own civic affairs am
select their own local officials , frco fron
control by the general public or the state
at large. ' This case was affirmed by the
New York court of appeals In nn elaborate
opinion by Gray , J. , as also In an able nnc
exhaustive opinion 'by ' O'Drlcn , J. , volume
cl , pigo 149. Tula same fundamental doc
trlno was also , In a pronounced form , re
Iterated by the supreme court of Connect !
cut , volume Ixv , page 47S , In an opinion bj
Hamerslcy , J. , who uses thla significant Ian
guago : 'No legislative act is valid that Is
clearly rtbnoxlons to the principle1 of cqualltj
In rights guaranteed by the Bill of Rights.
And , 'tho rights protected 'by ' the Bill o
Rights are thooo that Inhere In the groi
and essential principles of liberty and free
government , lecognlzed In the course o
events that resulted In our Independence
nnd established by the adoption of our con
ntltutlon ; ' and that 'equality Is a protectci
right equality under the law In the rights
to life , liberty and the pursuit ot happl
ness. '
STATE IS NOT SUPREME.
"Tho supreme court of Iowa , In State ox
rel Howe nualnst Mavor. ptc. . Rltv of DPS
Molncs ct al , October 9 , 1S97 , at page C39
eeq. No. 5 , volume 72 , N. W. Rep. , In a
learned opinion by Klnne , C. J . quoting with
pronounced approval Hanson against Vcr
non , 27 Jowa , 73 , says : 'It cannot Jjo main
talned that the constitution confers upon the
state government absolute and unlimltct
legislative power , authorizing all laws af
fecting the righta of property of the people
ple , not expressly prohibited 'by .that Instru
ment. * * There is , as it were , bad
of the written constitution an unwritten
constitution which guarantees and well pro
tects nil absolute rights of the pee
ple. Kio government can exercise
no power fo Impair or deny them.
Many ot them may not be enumerated In the
constitution , nor propervod by express pro
visions thereof , notwithstanding they exist
anil arc possessed by the people , free fron
governmental Interference.1 'We say then ,
eays the court , 'thatthere Is an Impllci
limitation upon the power of the legis
lature to delegate the power of taxation. '
SETTLE TWO PROBLEMS.
"Thcce citations , somewhat expended by me
bccaupo of the Importance of the questions
Involved , and which could bo extended al
most without limit , would seem to put nt
rest In this country two pivotal legal prob
lems pervading our complex system of gov
ernment , to-wlt : That local municipal self-
government Is an Inherent and Inalienable
right of the people that lies at the founda
tion of frco government ot the states and
nation , and that courts are charged with
the duty of so Interpreting and construing
otato and national constitutions PO as to
keep said rights Inviolate krep legislatures
and congresses from attempting to , directly
or Indirectly , subvert , Impair or abro
gate those sacred rights and that to this
end courts should , to 'avoid the very ap-
poarnnco of evil' In that regard , read the
constitution between the lines when neces
sary , no determined in Rathbono against
Wlrth , nnd the Iowa ceaes supra , even
though /between / lines , which , read alone ,
would , ox vltormlni , drny the right of the
peop'e ' to municipal self-government , for It
must be remembered that 'nn art violating
the true Intent and meaning of the Inatru-
ment. ' ( constitution ) , 'though within the let
ter. Is as much within the purview and effect
of a constitutional prohibition as If within
Its strict letter. ' Rathbono vs. Wlrth , and
other cases cited cupra.
"When courts read the constitution.
In determining thco Inherent rights
of the people to local self-government , and ,
Indeed , In determining their political
and governmental rights , no other
llgltf. should guide their investigations or ap
prove their conclusions , respecting those In
herent rights , than the all-pervading truths
embodied In the great Bill of Rights the
Declaration of Independence.
"Constitutions , when the Inherent rights of
the people arc Involved , should bo read under
and through that Dill of Rights , By the un
written law of the land , that charter Is to
bo read between every word , syllable , line
and sentence of the constitution , and any
word , syllable , line or sentence thereof that
Is In conflict with the principles of that char
ter must give way to the charter , as If those
words , syllables , lines or sentences were not
In the constitution.
"All doubta , when construing the cctistltu-
tlon rcBpec"lng tiicso Inherent rights of the
people , must be resolved against the author
ity of any branch of the government to Im
pair , weaken or abrogate those Inherent
rights , In favor of the pecplo In favor of
local , municipal pjlf-government , because
that U ono of the Inherent rights of tiie
people. Go } propcecd and established three
'Inherent ' rights , so ays the Declaration of
Independence , and section 1 , article I , of our
cons'ltutlon. Can the government dispose of
this Inalienable gift of the Deity ?
QUESTION OK SOVEREIGNTY.
"There hao been mucJi said about the uov-
crelgnty of the nation an1 of the otato. This'
claim Is misleading. In that It Is true caly
in a quallfed sense. As between the nation
and all foreign governments , the national
government Is absolutely sovereign , but as
between the national government and the
tate governments It Is only sovereign whllo
exercising Its functions within Its delegated
powers , and euch Implied powers as are nec
essary to effectuate ltd delegated powers. '
Nebraska l sovereign as between Itself and
other states In the union , but It Is not sov
ereign as between Itself and the people. The
people In 'Iho nation and under st > ito gov
ernments arc the cnly boverelgn power In a
republican form of government. Webster de
fines sovereignty to bo 'Tho excrcl. o of , or
rlg'H to exerclso , oupremo power ; dominion ;
sway , ' The sovereignty of the national and
state governments of this republic , cs and for
the purposes above Indicated , were ur-
renlered by the people , but for all other
purprses sovereignty still remains with ttiem
as the ticurco and embodiment of all politi
cal and governmental power. 'Wo the people
ple , ' a } the preamble to our constitution ,
'gmtcful to Almlghtv God for our freedom ,
do ordain and establish the following declar
ation of righto and frame of government , as
the constitution of the State of Nebras
ka , ' Can the creature be sovereign
eign over Its creator ? If go ,
then the creature once created , could pro-
> ent the creator from over changing the
creature. The people have the Inherent
right to change their form of government ,
eo long as they do not Impair , weaken ,
abridge or abrogate the Inherent lights of
any of the people. There Is u line beyond
which that sovereignty cannot go. As to
these Inherent rights , every Individual citi
zen Is himself a sovereign , eo uro the pco-
plo of every municipality In the state , and
one of these inherent rights la Bolt-Eovcrn-
mcnt. 'Governments arc Instituted among
the people' to protect , not to destroy , or
Impair these inherent right * . Whou a
government state or national falls to come
up to this standard , tkcy fall to fulfill the
purposes of their creation nnd existence ; when
they go bejond this standard they usurp
authority not delegated to them , become a
menace to human liberty a despotism founded
on a centralization of political and govern
mental power ,
REPUGNANT TO A REPUBLIC.
"Ttio right of an elector to vote for those
who arc to represent him Is a right recog
nized by the Declaration of Independence
and is an Inherent right which cannot betaken
taken away from hint. There can ba no re
publican form of government anywhere as
long as tic Is denied this right or where the
frco use ot that right Is abridged. The
right of tuo American freeman to east his
ballot without let or hindrance for ttmsc who
represent him In the national , state or mu
nicipal governments and have tlmt ballot
honestly counted Is ono ot the cardinal , vital
principles ot this government nnd n denial
ot that right Is not only a usurpation , but
the Inevitable forerunner ot n despotism. It
not only sounds the death knell of a free
government , It Is the keynote ot the requiem
over Us grave.
"No American Is n freeman ; no munici
pality whoso people are denied the right to
csst that vote Is n free municipality , and the
end Is despotism or revolution , ns was the
case with our forefathers.
"Tho ballot Is the frccimtn's weapon of defense -
fenso and protection In thle country.
"Tho constitution of the state guarantees
to every elector that right ; It would not bo
republican In form If It did not do so. See
sections 1 and G , article vll , state constitu
tion.
tion."Tho
"Tho frnmcrs of the Declaration of Inde
pendence , had this vital right ot the pcoplo
In mind when they recorded In that document
this Indictment against King George HI : j I
'Ho has erected a multitude of new offices , I
nnd sent hither swarms of officers to hnracs ;
our people nnd cat out their i ubstance. '
"There Is a reciprocal duty or obligation
between the state and the citizen. The cltl.
zcn Is bound to pay tnxes , the amount of
which cuts no figure , to support the state ,
and the state In turn Is bound to protect the
citizen's life , liberty nnd property to pro
tect him In the enjoyment ot all his Inherent
rights , and when this reciprocal duty Is
abrogated by the citizen the state govern
ment must starve and die ; when abrogated
by the sMto the door to lawless anarchy la
opened.
TWO SALIENT POINTS.
"Taxatlira and representation go hand In
hand In a republican government like oura.
Taxation without the right of representation
Is despotism , pure and simple.
"The state has the undeniable right to
tax the citizens for state purposes , but this |
right In the state Is not nn arbitrary right to
bo exercised without any restrictions. In
this regard the state has no authority to
enlarge or abridge the letter 'and spirit of
the constitution than has the humblest
citizen. This right of the state Is limited
In that power , which limitations are as sac.oa
and binding upon the state as is the express
grant of specific authority upon the state
sacred nnd binding upon the citizen ; otherwise -
wise the limited delegated authority to the
state becomes an engine ot destruction of
the reserved Inherent rights of the people.
"Among these limitations , which arc
absolutely essential to free government as a '
check upon state domination me , as wo have ,
shown , the- right to local municipal self-gov- i I
eminent by the people ; the right of the i
people to have representation ; the right to
veto for their representative municipal
officials as well as state officials.
"There Is still another limitation upon the
right of the state to tax the people , and
that Is that the taxes must be uniform.
This principle of government Is fundamental
and cannot .be abridged or abrogated with
Impunity , If the taMs levied upon the people
by the state arc not uniform , then a vital
protection to the people of the state Is
jeopardized. An act .of the legislature which
Imposes a non-uniform taxation upon the
people of any or all parts of the state Is
unconstitutional , or else the people have | I
framed a constitution under which the j
legislature may relieve the people In ono part j i
of the state from the burthen of taxation
for state purposes , and throw the whole I
burther thereof upon another part of the I
people In another part of the state. Everyone - I i
ono knows what such a power. If lodged In
the state , would lead to an utter overthrow
of civil liberty.
"Nor has the state any right to Impose a
debt or Obligation upon a municipality for
state purposes unless U Is made uniform
throughout the state , affecting the people
of the whole state alike , any more tha.i It
has the right to Impose non-uniform 'taxa
tion upon the peoplo. The principle Is the
fame whether the power Is exercised by the
state In the one case or thu other.
"Nor can the state tax a people of a
municipality ; nor can the 'legislature ' pro-
vldo by n constitutional enactment In any
case for such taxation without the consent
of the 'taxpayers ' of such municipality.
CASES DIRECTLY IN POINT.
"In Livingston vs. Wider , ct al. . 60 111. ,
was a case where the legislature of Illinois
In 1SG7 passed nn act to establish
a police eommlfslon for the city
ot East St. Louis , providing for
the appointment by the governor ,
with the consent of the senate , of
three commissioners who -were to control
the police department of the city , and In
of a failure of the city
council to appropriate money of
the amount required according to
the annual estimate of such commissioners ,
then such commlrslonen ? were given the
power to Issue certificates of Indebtedness In
the name of the city which should bo re
ceivable In payment of taxes , etc. The
court held the act unconstitutional and
that 'Whllo the aot creating thcso com
missioners docs not , In terms , give them
the right to Impose a direct tax , yet It
iioo ) give them the power to create a debt
ngulnst the city nnd the power to crcato
a debt to he discharged by the levy of a
tax are substantially the same thing , '
"Other authorities are not wanting In sup
port of this principle.
"In Wider ot al against East St. Louis ,
65 III. , 133 , the court says : 'The legislature
ordinarily has no power to Impose a debt
or levy a tax upon a municipal corporation
without Its assent , or to authorize persons
net corporate officers to create a debt against
he corporation , or to levy a tax thereon ,
cither directly or Indlractly , without the con
sent of UICHO to bo affected thereby , or of
.ho municipal authorities. ' The court ox-
nesbly adheicd to the ruling In the case of
jlvlnuoton ncalnst Wider et al. 63 III. , sunra.
"Tho court. In 55 III. , supra , holds that 'tho
locU'lne In reference to the possible existence
of caccs In which the legislature may Im-
jciso a local tax without the conbcnt of the
corporate authorities , an In case of the fall-
ire of ( ho police department of n city to
irovldo reasonable security for life and prop
erty , and the state should undertake to supply
Fticli deficiency , and a aecs thu expense
thereat upon the city has no arpllcatlcn in
a race where It Is attempted to confer I'le
cower o ! creating a debt against the city ,
without Its consent , upon police commission
ers appointed under a law which was never
submitted to nor approved by the people of
the city or Its corporate authorities , '
"In line with these principles the court , In
18 , Now York , supra , says : 'Tho right to
: h00.70 officers Is primarily and Inherently
n If 10 people. ' If It Is an Inherent right In
he people , by what rlsW e > - authority can
ho legislature take It away In whole or In
part ?
"Also , Attorney General against Board of
Counellmen , City of Detroit , 68 Mich. , 213.
vhcreln the couvt says : 'All officers and
unctlonarlcs rxerclelng powers of govern-
nt.n',1 and control over political action , must
Icrlvn their powers and office , either from
ho people directly or from the agents or
representatives of the people. '
SRTTLED PRINCIPLE ,
"It U well to note that It la a fettled
> rlnclpo ! of constitutional construction re-
npoctng ! the righto of tbo people to lo-.il
nunlclral self-government that courts must
ook to the existing coiidltlon.s In that re
gard , at the time of the adoption of the
onatltutlon. The adjudications mipportlag
his principle are BO uniform , as w ll 'aa
numerous , that the cllatlen of ono case 'will
ufficc. Kespcctlng that matter , the court ,
In CS Mich , eupr.i , says ! 'It Is also well
settled that our sMtp policy recognizes anj
perpetuates local government through varloua
classes of municipal bodies whoso essential
character must bo respected , ns flxcJ ! by
usage and recognition when the constitution
was adopted. And any legislation , for any
purpose which disregards nny of the funds ,
mental and essential requisites ot such
bodies , has nl\\A > s been regarded as Invalid
and unconstitutional. ' It may not bo too
much to say that the custom nnd usage ot
municipalities respecting their local gov
ernment < iml political functions cannot bs
iibrogatcd without their express consent , and
that Is the well nigh universally recognized
doctrine of this country ; In Nebraska find
other elates , ns well a Michigan. Custom
nnd usage In that regard becomes a law
controlling constitutional conventions , legls.
Mturcs and courts beyond the power of
either to disregard or question as fully anil
absolutely binding upon all as If written la
the constitution. This essentially vital ami
understood Inherent unwritten constitutional
right ot the people of n municipality must
never bo lost sight of when dealing with
the legislative authority , or the authority
of cither or nil the co-onllmtu branches ot
the government respecting munlclpil rights.
"When the constitution of 1S76 was
adopted ( November 1 , 1875 , ) It was and had
been the universal usage and custom ot the
people of the municipalities and all other
political subdivisions of the state to elect
all their municipal end other IOM ! officers
from the mil of their territorial government
May 1 , 1SC7 , when the state \\iu admitted
Into the union by the proclamation ot Presi
dent Johnson under the conctltutlon formed
by the people February S , IStG. If them
was nn exception to this , the- exception
proved the rule.
POWER UNREC03NIXED.
"Them was absolutely no constitutional
provision In the organic act of 1SCC which
contravened the right of tin * people to rogu-
late their own local and damestlo affairs na
sovereigns In that regard In their munici
pal governments. The light of the governor
to make the appointment of local municipal
officew under what Is called the police power
of 'the ftntc. or otherwise , was neither pro
vided for nor recognized by the coni'Utiulon
of 1SCG ; and 1 may bay vrry sparingly , if
over , exercised by the executive. It la
quite true that the organic net of M-y 30 ,
1S5I , for the territorial go\eniment of the
territory of Nebraska nnd Kansas did pro-
vlilo In section 7 thereof that 'the gov
ernor shall nominate , mid by and with the
consent of the legislative council , appoint
nil officers not herein otherwise provided
for , hut that and the whole of said eectlon
7 of the organic act was cntlicly left out
of the constitution of ISfiG.
"If It 'ho conceded that the people couM
by the constitution of 1S7B surrender their
[ > their municipal affnlis , It will not ho contended -
tended that such surrender can b ? maln-
I ' tallied by Implication. Those customs nnd
I u.iageo by 'tho people of the municipalities.
| under the authorities , become vested gov-
c crmncntal lights anil cannot bo divested
| i except by the unmistakable express giant ot
1 tlio municipalities cxpt CBS constitutional
surrender In such terms .1.3 leave no room
; i for doubt o" conjecture , otherwise the doubt
1 or conjecture must be resolved In favor of
tha established usages and customs
, of the people of the munlrl-
1 pallly. I have been unable to
i find a single respectable authority coutra-
venlug this propo'ltlsn. There may be de-
clslona the other way ; there may ho dc-
clslons the other way upon any great ques
tions affecting the Inalienable right ot the
people to life , liberty and the pursuit of hap
pl Ei > sl ; adjudging women to bo burned ns
witches , for inotancc , or upholding the in
famous 'blue laws' of Connecticut.
INHERENT AND INALIENABLE.
" .Nor la there nny constitutional authority
In the constitution of 1S75 which expressly
or by nny Just and fair construction of that
Instrument can be fairly said to constitute
a surrender ot , or which delegates to the
state the right of municipal self-government
ns It had been oxsrcleed. nnd to which the
people were accustomed as a usage when
the constitution of 187/5 / was adopted. Hut
let me not bo misunderstood In this matter :
What I contend Is , that usngo and custom
respecting local municipal self-government ,
existing nt the time the constitution of 1S75
was ndoptcd , cnnnot. If nt nil , IIP taken away
other than by an express constitutional grant ;
also that the right to such local self - government
ment Is an Inherent right In the people ,
which , In order to become and remain Ml
Inalienable right , need not first ripen Into a
usage or custom. It Is a right Inherent , ever
lasting and unchangeable , bccaubc it Is In
herent , Inalienable.
"It should , In this connection , bo remem
bered , that all laws , all constitutions , nil gov-
mcnt , municipal , state and national , are
formed for the solo and only purpose of securing -
curing the greatest possible liberty to the
people ; the people nro not made for thcfo
governments , but these governments are
made for the people , for them , and the pro
tection of their Inalienable '
rights , 'govern
ments are Instituted among the people. '
The people have other inn'leiiablo ' rights than
the right to life , llbcity nnd the pursuit of
happiness. The people nro 'endowed by
their creator with certain Inalienable rights ,
among which are life , liberty and the pur
suit of happlncra , ' says the Declaration of
Independence , and one of these rights 'among
which , ' h the right of local municipal self-
government. The provisions of the consti
tution of 1875 and the only provisions that
nny c'alrn Is or can bo made for the net of
the legislature authorizing , nnd theonlv
ones permitting or empowering the governor
to make the appointments of the so-called
present members of the Flro nnd Police Com
mission of this city , nnd the only ones giving
the so-called Flro and Police Commlssloncia
the right to hold said offices or exercise the
functions ( hereof , are sections 10 , 11 and 12 ,
of article v of the constitution ot 1875.
There are none other.
IN NEBRASKA'S CONSTITUTION.
"Said section 10 provides : 'The governor
tihalt nominate , and by and with the ndvlco
and consent of the senate ( expressed by a
majority of all the sr-miioiti elected , voting
by yean and nays ) , appoint nil officers whoso
offices are established by this constitution
or which may ho created by law , uml whoso
appointment or election IH not otherwise by
law or herein provided for ; nnd no such offi
cer shall be appointed or elected by the legis
lature. '
"Section 11 provides : 'In case of a va
cancy during the recess of the ncr : tc , In any
office which Is not nlcctlvo , the governor
Khali make a temporary appointment until
the next meeting of the senate , when ho
feliall nominate some person to fill such
office , and any peraoa so nominated , who Is
confirmed by the noaato ( a majority of all
the senators t-lcctcd , concurring by voting
yc.io and nnjE ) , shall hold hli olllce during
the remainder of the term , and until his
successor shall bo appointed nnd qualified.
No person , after being rejected by the sen
ate , can bo appointed for the same ofllco
at the omo scBSkn unlots at request of the
senate , cr bo appointed to the i > imo ofllco
during the recesi of th senate. '
"Section 12 provides : 'Tho governor shall
have power to remove nny officer whom ho
ir.ay appoint , In case of Incompctency , neg
lect of duty , or malfeasance In office ; and
ho may decMro his office vac-Tit and (111 ( the
eama as herein provided In other cases of
vacancy. '
"It must bo apparent to every lawyer , that
the provisIotiH of ald ueulormof the constitu
tion apply only to appo niive otato officers
or appointed officer , ! , the exercise of whoso
duties pertain particularly to the otato In
contradistinction to municipal government ,
hcnco It follows that the members of the
Flru and Police lioard being , as I am con
vinced they are , local municipal officers with
Incidental and only Incidental duties to per
form for the public generally for the Htato
If otherwise , the act of the legislature ,
conferring authority upon the governor to
make the appointment Is constitutional , the
appointments could legally he made by the
governor without the 'advice and consent of
the eunate,1
' -tA'ijofficer : whose gcncal : rluilBU are to lh
statcrpnjt , who r Incidental dutlea to per-
formTforT'in.rrjIclpalltle'i cr other political
Pubiilvlilogs/Sfjrthc Htatf in a ntnte officer ,
and If hls-ofllcajU an appointive one by the
governor , thuTjIWRiny consideration Is given
to the constitution" by the governor , he muit
join with the Biaafo ID making the appoint
ment , to the extent of having the 'udvlca