City of Beatrice v. Masslich

• Citation: 108 F. 743
• Decision Date: 22 April 1901
• Docket Number: 1,438.
• Parties: CITY OF BEATRICE v. MASSLICH.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

108 F. 743

CITY OF BEATRICE v. MASSLICH.

No. 1,438.

United States Court of Appeals, Eighth Circuit.

April 22, 1901

George A. Murphy (Mr. Swain and Alburtus H. Kidd, on the brief), for plaintiff in error.

Chester B. Masslich and C. C. Flansburg (R. O. Williams, on the brief), for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and ADAMS, District judge.

CALDWELL Circuit Judge.

Chester B. Masslich, the defendant in error, brought this action against the city of Beatrice, Neb., the plaintiff in error on certain bonds and interest coupons cut from bonds issued by the city of Beatrice for the purpose of defraying the cost of curbing, guttering, and paving the streets in certain paving districts in that city. The assignments of error challenge the constitutionality of the act under which the bonds were issued, because of alleged defects in the title of the act. The bonds recite that they were issued 'under and by virtue of an act of the legislature of the state of Nebraska, being subdivision LVIII. of section 52 of article 2, chapter 14, of the Compiled Statutes of 1887 of the State of Nebraska. ' The act which became subdivision 58 of section 52 is contained in the Session Laws of 1887, and its full title is as follows:

'An act to amend sections 27 and 58 and to add subdivisions LVIII and LIX to section 52 of article 2, of chapter 14, of the Compiled Statutes relating to 'cities of the second class' having more than five thousand (5,000) inhabitants, and to repeal said original sections 27 and 58 and all acts and parts of acts in conflict with this act.'

Section 11 of article 3 of the state constitution provides that:

'No bill shall contain more than one subject, and the same shall be clearly expressed in its title. And no law shall be amended unless the new act contains the section or sections so amended and the section or sections so amended shall be repealed.

It is contended that the title of the act does not express its subject with sufficient accuracy and precision. There is apparent duplicity in the title, and it is probably needlessly prolix. In terms it both amends and repeals sections 27 and 58, 'and all acts and parts of acts in conflict with this act. ' All this was mere surplusage in the title. What the act did and what it plainly expressed in its title was to add subdivisions 58 and 59 'to section 52 of article 2 of chapter 14 of the Compiled Statutes,' regulating the powers of certain municipal corporations. The added subdivisions were new and original enactments. They were entirely germane to the statute of which they were made a part. The subdivisions and statutes of which they were made a part all related to the powers of certain municipal corporations, and sections 27 and 58 and all other acts in conflict with these new enactments were repealed by implication, and all reference to this fact was mere surplusage. Probably a more concise title would have been:

'An act to add subdivisions 58 and 59 to section 52 of article 2 of chapter 14 of the Compiled Statutes relating to cities of the second class having over five thousand inhabitants.' In legal effect, the act does this, and nothing more, and this is plainly expressed in the title. In Read v. City of Plattsmouth, 107 U.S. 568, 2 Sup.Ct. 208, 27 L.Ed. 414, the supreme court of the United States held that an act entitled 'an act to amend the act to incorporate cities of the second class and to define their powers, approved March 1, 1871, and to legalize certain taxes therein mentioned,' was not in violation of the constitutional provision of the state of Nebraska now under consideration. The court said, 'The act, therefore, may be considered as if its title were simply that of 'An act to legalize certain taxes therein mentioned.''

The duplicity and prolixity in the title do not render it obnoxious to the constitution, because there is no constitutional inhibition against duplicity and prolixity in the title of an act. In a headnote to the case of Van Horn v. State, 46 Neb. 62, 64 N.W. 365, it is said:

'Whether or not a bill contains more than one subject is to be determined by examining the substance of the bill. Apparent duplicity in the title alone does not invalidate the act.'

In discussing this question, Judge Cooley says:

'The legislature must determine for itself how broad and comprehensive shall be the subject of a statute, and how much particularity shall be implied in the title defining i.' Cooley, Const. Lim. 144.

It is enough that the subject of the act is clearly expressed in its title. The subject of this act was to add two subdivisions to a specified section of a specified article of the specified chapter of the Compiled Statutes of the state, and this object is clearly expressed in the title. The subject-matter of section 52 was known to all, and the only inquiry is, were the added subdivisions germane to the existing statute of which they were to become a part? Unquestionably, they were, and, that being so, the subject of the act was sufficiently expressed in the title. In Re White, 33 Neb. 812, 51 N.W. 287, the supreme court say:

'The first objection to this act is that it is amendatory of chapter 50, Comp. St., and is not complete in itself, and does not repeal chapter 50. The act in question does not purport to change any part of chapter 50 of the Compiled Statutes, but simply adds thereto additional provisions which are to be incorporated in chapter 50 as sections 21 and 22. This is not prohibited of law, and were supposed to contain a correct compilation of the laws in force in the state when the book was published. Being a standard book, the legislature, in amending a statute, may refer to a particular part of the statute set forth in such work. All that is required in such case is a reasonable degree of certainty as to the statute to be amended.'

The subject of a statute is one thing, and its detailed provisions quite another; one is the topic, the other its treatment; one is required to be stated in the title, the other is not. The reference to the section and chapter to which the subdivisions are to be added sufficiently indicates the subject of the act. The supreme court of Nebraska has uniformly held that acts with titles like this, 'An act to amend section 4 of chapter 55 of the Compiled Statutes of Nebraska,' are valid, and that such a title is a sufficient compliance with the requirements of the constitution. Dogge v. State, 17 Neb. 140, 22 N.W. 348; Muldoon v. Levi, 25 Neb. 457, 41 N.W. 280.

This is the general holding of the courts on the subject. Steel Co. v. Erskine, ...