State ex rel. Smyth v. Kennedy
Nebraska Supreme Court
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. The ordinary rules of res adjudicata do not apply; (a) Becq-use 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.
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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. The ordinary rules of res adjudicata do not apply; (a) Becq-use 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 adjudicate., or the statute of limitations can be applied. The court will find the rule stated in many cases,…
1Opinion of the CourtSullivan, J.
This action was evidently instituted to secure a decision *303overruling the case of State v. Moores, 55 Nebr., 480. The Moores (Jase 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 criticised. If it is to be acquiesced in and accepted as a rule of construction, the…
2Cases cited7 opinions
- New Orleans v. Citizens' BankSupreme Court of the United States · 1897
- Painter v. PainterOhio Supreme Court · 1849
- People ex rel. Bryant v. HolladayCalifornia Supreme Court · 1892
- O'Connell v. Chicago Terminal Transfer RailroadIllinois Supreme Court · 1900
- McClesky v. State Ex Rel. CottrellCourt of Appeals of Texas · 1893
2 more not listed; retrieve them via the Exa API.
3Cited by21 opinions
- Superior Oil Co. v. Superior CourtCalifornia Supreme Court · 1936
- O'CONNOR v. SlakerCourt of Appeals for the Eighth Circuit · 1927
- State ex rel. Kennedy v. BroatchNebraska Supreme Court · 1903
- Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Muncie & Portland Traction Co.Indiana Supreme Court · 1906
- The Times-Mirror Co. v. Superior CourtCalifornia Supreme Court · 1940
16 more not listed; retrieve them via the Exa API.