State ex rel. Thompson v. Donahue

Reese, C. J.,

concurring in the conclusion.

It may he that the conclusion arrived at in the foregoing opinion is the only one which can he justified under the facts, hut I cannot agree to all that is said. From the facts detailed, it may fairly be assumed that the mayor should have been included in the order of the governor to the attorney general. It is a part of the public history of Omaha that the officers have been inexcusably derelict in the discharge of the duties imposed upon them by law, their oaths, and the necessity for the protection of property and law-abiding citizens. It must be conceded that the chief of police is in some respect subject to the control of the mayor and police board, but, as pointed out in the opinion, the fact that those officers failed and refused to discharge their sworn duty, and might have removed respondent for no other cause than that he did discharge his, ought not to furnish any justification for his failure. He knew that the law was being violated within the city by day and by night continuously. True, he perhaps did not see those violations, but his officers reported them to him, and the law said it was his duty to enforce its observance. That law was of higher authority than the direction of the mayor or police board. The obligation of his oath of office could not be diminished by their directions or commands. He failed to do his duty. But, if he, acting in good faith, understood and believed that the mayor, whom the statute provides shall direct him in the discharge of his duties, had the right in connection with the police commissioners to control his actions, notwithstanding the mandatory provisions of the statute, it mew/ be that it ought not to be held that he had “wilfully failed or refused to enforce any law which it is bis duty as such officer to enforce.” Questions of this kind must be solved *330by a consideration of the facts in each particular case. If the mayor and police board, admittedly the superiors of the chief of police, knowingly and wilfully stand in the way of the enforcement of the law by their subordinate officers, it seems clear that they should not escape, and the whole of the penalties of the law inflicted upon their subordinates. Neither the attorney general nor the court are accountable for these discriminations.