Donahue v. State ex rel. Seieroe

• Citation: 96 N.W. 1038,70 Neb. 72
• Decision Date: 07 October 1903
• Docket Number: 13,070
• Parties: JOHN J. DONAHUE, CHIEF OF POLICE OF THE CITY OF OMAHA, v. STATE OF NEBRASKA, EX REL. NEILS SEIEROE
• Court: Nebraska Supreme Court

96 N.W. 1038

70 Neb. 72

JOHN J. DONAHUE, CHIEF OF POLICE OF THE CITY OF OMAHA, v. STATE OF NEBRASKA, EX REL. NEILS SEIEROE

No. 13,070

Supreme Court of Nebraska

October 7, 1903

ERROR to the district court for Douglas county: IRVING F. BAXTER JUDGE. Reversed.

REVERSED.

W. J Connell and Parke Godwin, for plaintiff in error.

Byron G. Burbank, contra.

DUFFIE C. POUND and KIRKPATRICK, CC., concur.

OPINION

DUFFIE, C.

This is a mandamus proceeding brought by the defendant in error against the chief of police of the city of Omaha, the purpose being to compel the chief of police to close certain houses of prostitution in said city. The district court awarded the writ, from which judgment the chief has taken a writ of error. By section 170, chapter 12a, Compiled Statutes, 1901 (Annotated Statutes, 7639), the chief of police of the city of Omaha is subject to the orders of the mayor and board of fire and police. Being subject to the orders of these officers by whom his appointment is made, there is no reason to suppose that he is not entirely ready to comply with the directions of the board, the mayor assenting thereto. Such being the case, it is certainly a serious objection to the petition that it seeks to deal alone with a subordinate officer and that those who govern and control his actions are not made parties to the suit. Alger v. Seaver, 138 Mass. 331.

There is another matter which in our opinion calls for a reversal of the case. The record discloses that the houses complained of and against which it is sought to direct the action of the chief of police, were built by Seieroe for one Slobodisky. These houses are located in what is known as the "burnt district" of Omaha and were, according to the evidence of the petitioner, kept as houses of prostitution for from five to seven years prior to the commencement of this action. A contract existed between relator and Slobodisky, the exact terms of which do not appear, but one of its conditions was to the effect that Slobodisky was to pay the relator $ 250 a month until the contract price for the erection of the buildings was fully paid. Some misunderstanding or disagreement arose between the parties and one Harris was appointed to collect the rents from the buildings and divide the same between them. We copy from the relator's cross-examination:

Q. What was done with that money after Harris collected it?

A. He was to keep the money until he has a certain amount collected, then he pays it over to Slobodisky.

Q. To whom?

A. To him just the same--he pay to me.

Q. You knew where it came from?

A. Yes, from Harris.

Q. You knew where it came from?

A. I knew he got it from those houses.

Q. And those women?

A. I suppose so.

Q. You knew what the women were doing--how they earned it--you knew that?

A. Yes, sir.

While the record is not entirely clear upon the question, we are satisfied from what does appear that Slobodisky, before paying in full for the erection of these buildings, refused further payments and that, in an action brought by relator to enforce payment, judgment went for the defendant and relator was denied the assistance of the court in attempting to collect his claim. Sometime thereafter he sent a written notification to the chief of police as follows:

"I Neils Seieroe, a resident, citizen and taxpayer of the city of Omaha in the state of Nebraska,...