Bartling v. Wait
| Decision Date | 11 July 1914 |
| Docket Number | No. 18611.,18611. |
| Citation | 96 Neb. 532,148 N.W. 507 |
| Parties | BARTLING v. WAIT, SECRETARY OF STATE. |
| Court | Nebraska Supreme Court |
Under the provisions of section 2335, Rev. St. 1913, it is not required that the full text of an act of the Legislature which it is desired to submit to the people for a referendum vote shall be printed on the face of the referendum petition if the referendum is sought as to the entire act, but if it is desired upon a portion of the act only, that portion which the petitioners desire submitted must be printed upon the petition.
The court will take judicial notice that certain cities and villages named in the petition are situated within this state.
Under the provisions of section 1c, art. 3, of the Constitution a referendum cannot be ordered upon acts of the Legislature “making appropriations for the expenses of the state government and state institutions existing at the time such act is passed.” The expense of maintaining the national guard of Nebraska, which is a part of the state government, and, in one sense, a state institution, may not be made the subject of a referendum, but an appropriation to erect a building for a memorial armory is not an “expense” under the meaning of this clause, is not within the exception, and may be made the subject of a referendum.
The words “state institution” may have two meanings; one, the corporate, or in some instances the associated body which carries on the activities for which it is organized, the other meaning the building or buildings in which that body exercises its proper functions and activities.
Appeal from District Court, Lancaster County; Stewart, Judge.
Injunction by Henry H. Bartling against Addison Wait, as Secretary of State. From judgment for defendant, plaintiff appeals. Affirmed.Paul Jessen, Wm. H. Pitzer, and Edwin Zimmerer, all of Nebraska City, for appellant.
Grant G. Martin, Geo. W. Ayres, and Arthur W. Richardson, all of Lincoln, for appellee.
Action for an injunction, which was denied. Plaintiff appeals.
On April 16, 1913, an act was passed and approved entitled:
“An act to establish a memorial armory at Nebraska City, and to provide for the payment of the construction thereof.” Laws 1913, ch. 128.
This act provided, in substance, for the establishment in Nebraska City of an armory building to be known as the “Fort Kearney Memorial Armory” to be located on the ground originally occupied by old Ft. Kearney, and that when so constructed it should be used and occupied as an armory building by that company of the regular state militia then or afterwards located at Nebraska City; that the building should be constructed under the supervision of the commissioner of public lands and buildings after the land on which it was to be built should be conveyed to the state in fee simple without cost or expense. By section 5, $20,000 was appropriated from the general fund of the state for the purpose named.
The petition alleges that the plaintiff is a citizen of the state and a resident of Nebraska City; that there is now in plaintiff's hands a deed conveying the fee-simple title to the site of old Ft. Kearney, with an abstract of the record title thereto with instructions from the grantor to deliver the same to the state of Nebraska for the purpose contemplated by the act; that he has tendered the conveyance and abstract to the Governor of the state, but acceptance has been refused for the reason that there has been filed in the office of defendant secretary of the state of Nebraska, a petition under the provisions of article 19, c. 20, Rev. St. 1913, demanding that the act be submitted to the legal voters of the state at the general election to be held in November, 1913. It is also alleged that the Secretary of State, notwithstanding the insufficiency of the petition in fact and law, as defendant, is preparing to submit the act to the voters of the state for approval or rejection at the next general election, and to print the title of the act and a statement of its provisions upon the ballot to be submitted to the voters. It is alleged that the defendant has no power so to do, for the reason that by section 1c, art. 3, of the Constitution, it is provided that the referendum cannot be ordered upon acts of the Legislature “making appropriations for the expenses of the state government, and state institutions existing at the time such act is passed,” and that such act is within the exception; that there is and has been continually for 25 years past a regular company of the state militia enlisted and organized and having its headquarters in Nebraska City, which is a part of the national guard of the state; that the regularly organized state militia is a part of the government of the state of Nebraska, and an appropriation for its maintenance is an appropriation for the expenses of the state government, and that the national guard is a state institution which was in existence at the time of the passage of the act.
A large number of irregularities in the petitions filed are also alleged, and it is alleged that the signers do not equal 10 per cent. of the legal voters of the state at the last regular election, and that when illegal signatures are deducted there would be less than 5 per cent. of the legal voters in each of two-fifths of the counties of the state. An injunction is prayed to prevent defendant from printing the title and numbers of the act upon the ballot, and from proceeding with the submission of the question of the approval or rejection of the act. The Attorney General answers, admitting the passage of the act as alleged, the facts alleged with reference to the site of old Ft. Kearney, the tender of the deed to the Governor and its refusal, and that the defendant intends to submit the question to the people. The other allegations in the petition are denied. After a hearing, the court found in favor of defendant, and denied the injunction.
At the trial the allegations as to the continuous existence of a company of the national guard at Nebraska City, and that the names upon the petitions represented more than 10 per cent. of the votes cast for Governor at the preceding election, and more than 5 per cent. in each of more than two-fifths of the counties of the state were admitted. It is also stipulated that of the 26,891 names 1,852 are signed, and their post office address is shown only by the city or village in which the signer purports to live, but neither the county nor state in which they live appears upon the face of the petition, except that which appears upon the other side of the face of the petition, and that each of the 1,852 names was subscribed to the petition under the printed form; copies of this and of the back of the petition were in evidence.
[1] It is first argued that the petition is insufficient because while the statute requires a full and correct copy of the act proposed to be submitted to the vote of the people to be printed upon each petition circulated, the record shows that the word “originally” in the second section was omitted. The act...
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State ex rel. Boyer v. Grady
...court has already had occasion to consider the meaning of exemptions from the referendum contained in the Constitution. Bartling v. Waite, 96 Neb. 532, 148 N.W. 507. We held an appropriation for a "memorial armory" was not an expense of government, but, as an illustration, that the cost of ......
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Quigley v. Lebsack
...voters without street or number addresses cannot sign a recall petition. We have previously addressed this problem in Bartling v. Wait, 96 Neb. 532, 148 N.W. 507 (1914). In that case we held at 536, 148 N.W. at It is claimed that the petition is defective because 1,852 signers of the petiti......
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Lawrence v. Beermann
...different scheme for the revenue raising and financing of state delegated and created local units of self-government. See Bartling v. Wait, 96 Neb. 532, 148 N.W. 507. The referral of Legislative Bill 772 to a vote of the people will in no way jeopardize the state's continuous compliance wit......