State ex rel. Smyth v. Kennedy

• Decision Date: 07 June 1900
• Docket Number: 11,226
• Citation: 83 N.W. 87,60 Neb. 300
• Parties: STATE OF NEBRASKA, EX REL. CONSTANTINE J. SMYTH, ATTORNEY GENERAL, v. FRANK A. KENNEDY ET AL. RESPONDENTS, AND WILLIAM J. BROATCH ET AL. INTERVENERS
• Court: Nebraska Supreme Court

83 N.W. 87

60 Neb. 300

STATE OF NEBRASKA, EX REL. CONSTANTINE J. SMYTH, ATTORNEY GENERAL, v. FRANK A. KENNEDY ET AL. RESPONDENTS, AND WILLIAM J. BROATCH ET AL. INTERVENERS

No. 11,226

Supreme Court of Nebraska

June 7, 1900

ORIGINAL action in the nature of a quo warranto asking for judgment of ouster against the fire and police commissioners of the city of Omaha. Writ denied.

Application denied.

Constantine J. Smyth, Attorney General, and Willis D. Oldham, Deputy, for the state.

Frank T. Ransom, Wright & Stout and Ed P. Smith, for the interverners Broatch, Miller, Peabody and O'Connor:

The ordinary rules of res adjudicata do not apply; (a) Because res adjudicata and estoppel by judgment can not be pleaded against the state appearing in its sovereign capacity; (b) because the decision against the state in quo warranto actions is not final and conclusive. It is obnoxious to the very idea of sovereignty that estoppel or res adjudicata, or the statute of limitations can be applied. The court will find the rule stated in many cases, that the state can not be estopped; and it will find the contrary rule laid down, in general terms, that the state will be bound by adjudications as any other litigant. Neither rule, stated in its broad terms, is correct; but an examination of the cases which support either rule discloses the fact that those cases which have applied the doctrine of estoppel or res adjudicata to the state have been cases in which the state has been seeking to enforce its contract or property rights, rights growing out of or relating to its corporate capacity. So far as we are able to find, not a single case in the United States has ever held that the state could be estopped in matters relating to its sovereignty. In the case of United States v. State Bank, 96 U.S. 30, 36, Justice Swayne clearly points out the distinction. He says, in substance, in these cases (where negotiable paper was involved) the rules of law applicable to the individual were applied to the United States, and that the doctrine of estoppel was correctly applied in those cases, because the action related to matters pertaining to their corporate capacity. He then adds "Their sovereignty is in nowise involved." The same doctrine has been recognized in Fendall v. United States, 14 Court of Claims [U.S.], 247; Hunter v United States, 5 Pet. [U.S.], 173; Johnson v. United States, 5 Mason [U.S.], 425.

In all criminal actions, the state, of course, appears in its sovereign capacity. But there can be no plea of estoppel or res adjudicata. This is recognized by the common law and by nearly every constitution in the United States, because by the common law it is established that no man should be put in jeopardy twice; and like provision is found in all the constitutions, except those states in which a common law rule has been held to apply. If the ordinary doctrines of estoppel and res adjudicata had applied against the state in the criminal action, there was no need of the express provision of the English law that a man should not be twice put in jeopardy. If the doctrine of res adjudicata or estoppel had applied to the state appearing in its sovereign capacity, there would have been no need of the special provision in the constitution of this country which provides that no man shall be put in jeopardy twice for the same offense, but these provisions would have been meaningless and unless incumbrances to the constitution. This is a special limitation upon the rights of sovereignty, and it is contained in the special provision limiting the sovereignty. It is not, however, extended to actions in the nature of quo warranto.

W. J. Connell, for the respondents and for the mayor and city council of Omaha:

Res adjudicata rules the state the same as the citizen. No plea of res adjudicata in criminal actions? True, if you condescend to quibble. And it is also true that in civil actions there is no plea of former jeopardy or autrefois acquit. In the criminal court the judge discharges the prisoner because Nemo debet bis puniri pro uno delicto, ^[*] and in the civil court he bids the defendant go without day because Nemo debet bis vexari pro una et eadem causa. ^[+] Both the pleas and the maxims are one and the same thing in substance and principle, each being clothed in the language peculiar to the special tribunal in which it is used. State v. Behimer, 20 Ohio St. 576; Wharton, Pleading & Evidence, 574.

McCoy & Ohmsted, as amici curiae, filed a brief against the granting of the writ.

SULLIVAN J. HOLCOMB, J. NORVAL, C. J. concurring.

OPINION

SULLIVAN, J.

This action was evidently instituted to secure a decision overruling the case of State v. Moores, 55 Neb. 480, 76 N.W. 175. The Moores Case lays down the doctrine that whatever the court may conceive to be the spirit of the constitution is to be regarded as part of the paramount law. While the decision, by recognizing and enforcing the asserted right of local self-government, is conceded to rest upon a sound political principle, it was rendered by a divided bench and, as a judicial pronouncement, has been much criticized. If it is to be acquiesced in and accepted as a rule of construction, the constitution of the state is to be fully known, only, by studying the theories of the judges who are chosen to expound it; it will expand or contract with every fluctuation of the popular will which produces a change in the personnel of the court; and the limitations upon legislative power will be as unknown and unknowable as were the rules of equity in the days when the chancellor's conscience was the law of the land. It is the opinion of the writer that the decision is thoroughly vicious; that it strikes a lethal blow at a co-ordinate branch of the government and ought to be repudiated and condemned. But since the members of the court who participate in this decision are not in accord upon the question of constitutional law here involved, further discussion of that question is unnecessary, and would be unprofitable. There is another point in the case upon which we are agreed and which is decisive of the controversy. The judgment must be in favor of the respondents whether the ordinance under which they claim is valid or void.

Briefly stated, the facts in the case of State v. Moores were these: Acting under the provisions of section 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 and entered at once upon the discharge of their official duties. Afterwards there was filed in this court by the state, on the relation of the attorney general, an application for a writ of quo warranto against the governor's appointees, the purpose of the action being to obtain an adjudication upon the validity of the sections of the statute under which they had been commissioned. While this action was pending the mayor and council of Omaha provided by ordinance for a board of fire and police commissioners and appointed respondents herein, Matthew H. Collins and Victor H. Coffman, together with two other persons, namely, Peter W. Birkhauser and Charles J. Karbach, to act as members of such board. The persons so appointed by the city authorities intervened in the action and asserted their claims. They contended that the ordinance under which they had been commissioned was valid, and that the statute under which Peabody, Gregory, Bullard and Herdman had been appointed was void. The cause was regularly submitted for decision, and the court, upon due consideration, decided that the ordinance was valid and that sections 166 and 167 of the city charter, so far as they assumed to confer upon the governor authority to appoint fire and police commissioners, were contrary to the scope and purpose of the constitution and, therefore, void. By the judgment rendered the appointees of the governor were declared to be intruders and were ousted from the offices which they held, and the appointees of the mayor and council were installed in their places. This judgment was executed, and it is still in force. The case now before us was commenced during the present term of the court. It also is an information in the nature of a quo warranto, whereby the state, on the relation of the attorney general, demands of the respondents, who are members of the board of fire and police commissioners of Omaha, holding under the authority of the mayor and council, an exhibition of the authority under which they are assuming to act. After the cause was pending, Governor Poynter, acting on the assumption that sections 166 and 167, aforesaid, are not in any respect violative of the supreme law, appointed James H. Peabody, William J. Broatch, Harry C. Miller and John J. O'Connor as members of the board of fire and police commissioners for the city of Omaha. Those persons have intervened in the action and filed a pleading in which they assert their claims to the offices held by the respondents. So it appears that we are again called upon to adjudicate between the appointees of the governor and the appointees of the mayor and council the identical matters which were adjudicated in the first case.

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 adjudicata applies to ordinary suitors, it has no application to a sovereign state....