60 Neb. 300 | Neb. | 1900
Lead Opinion
This action was evidently instituted to secure a decision
Briefly stated, the facts in the case of State v. Moores were these: Acting under the provisions of sections 166 and 167 of chapter 12a, Compiled Statutes of 1897, which conferred, or assumed to confer, upon him authority to appoint fire and police commissioners for cities of the metropolitan class, Governor Holcomb appointed James H. Peabody, D. D. Gregory, William C. Bullard and R. E. L. Herdman as fire and police commissioners for the city of Omaha. The persons so appointed duly qualified
One of the defenses interposed by the respondents is that the judgment in the Moores Case, whether right or wrong, is binding and conclusive upon the parties to this litigation. Counsel for the interveners, on the other hand, contend that while the doctrine of res adjudícala applies to ordinary suitors, it has no application to a sovereign state. The question thus raised is an important one and we have given it careful consideration, reaching the conclusion, after much reflection and thorough investigation of the authorities, that when a state invokes the judgment of a court for any purpose, it lays its sovereignty aside and consents to be bound by the decision, whether such decision be favorable or adverse. While the state as a political community is not obliged to submit to the jurisdiction of its own courts, it ought, in reason and justice, to be bound whenever it voluntarily appears in court and without reservation submits a matter in controversy for adjudication. The courts possess a portion of the sovereign power; they have authority to decide between litigants; and authority to decide implies, always, power to make their judgments effective. It is said by Mr. Justice White in New Orleans v. Citizens Banh, 167 U. S., 371, 399, that “the very essence of judicial power is- that when a matter is once ascertained and determined it is forever concluded when it arises again under the same circumstances and conditions
One other matter calls for a passing notice. The original brief of counsel for respondents conveyed quite plainly his apprehension that political considerations might be a factor in the decision of the case. No judge conscious of his own integrity will listen to such suggestion. -No self-respecting court will tolerate an argument which proceeds on the assumption that the goad and spur are necessary to compel it to discharge honestly its constitutional duty. We know, as well as counsel, that the supreme and inexorable obligation of a court to truly interpret the will of the lawgiver has no possible relation to questions of party expediency. It is surely not necessary to instruct us as to that. We believe thoroughly in the rectitude of our own intentions; we feel sure of the inflexibility of our purpose to administer justice uninfluenced by considerations of party advantage; and we ■ will not permit counsel to deal with us on the theory that we may perhaps be contemplating a betrayal of our trust. Whatever may be the effect of our decisions upon party interests, we shall still resolutely endeavor to act in obedience to the maxim, Fiat justitia ruat ecelum, and it will not be necessary for counsel to point out that it is the duty of the court to do its duty. The offensive brief has been stricken from the files. Kelley v. Boettcher, 27 C. C. A., 177, 82 Fed. Rep., 794. The application for a judgment of ouster against the respondents is denied.
- Judgment accordingly.
Upon the point last discussed Holcomb, J., concurs; upon the other questions considered bo expresses no opinion.
Concurrence Opinion
concurring.
I adhere to the conclusion reached by the majority of the court in State v. Moores, 55 Nebr., 480. In my view that decision rests upon sound legal principles, and that the arguments of the majority opinion have never been successfully answered, and are believed to be unansweráble. Believing as I do, that the act under which the governor’s appointees were named is violative of the constitution, the respondents should not be deprived of their offices. The writ should also be denied on the ground that the judgment in State v. Moores, supra, is conclusive against the parties to this record.