Daly v. Beery
| Decision Date | 20 April 1920 |
| Court | North Dakota Supreme Court |
Appeal fro the District Court of Grant County, Crawford, J.
From an order sustaining a demurrer to the complaint, defendants appeal.
Reversed.
Order reversed. Neither party recovered any costs.
E. R Lanterman, for appellant.
No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated thereby only, as to so much thereof as shall not be expressed. Section 61 of the state Constitution.
If the title expresses a general purpose, all matters fairly reasonably connected with that purpose and all measures which would facilitate its accomplishment, would not be in conflict with the above position of the Constitution. Van Hasen v Heames (Mich.) 56 N.W. 22; People v. Linda Vista Irrig. Dist. (Cal.) 61 P. 86, 89; Re HegneHendrum Ditch 82 N.W. 1096.
Any provision of the statute incidentally connected with or leading to the subject or object expressed in the title will be included by it. State v. Hass, 2 N.D. 202; State v. Woodmanse, 1 N.D. 246; State v. Barnes, 3 N.D. 319.
The mandate of the Constitution is observed if the legislation in the body of a statute is germane to the general object expressed in the title of the act in which it appears. The test is whether such legislation is relevant or appropriate to such subject. El Paso Co. v. Teller County (Colo.) 76 P. 368; Pioneer Irrig. Dist. v. Bradburg (Idaho) 68 P. 295; Diana Shooting Club v. Lamore (Wis.) 89 N.W. 880.
W. A Anderson and Foster & Baker, as amici curiae
A county is merely a governmental subdivision of the state, and as such is but an agency of the state, subject to legislative control. Great Northern R. Co. v. Stevens County (Wash.) 183 P. 65; Miller v. Henry, 60 Ore. 4, 124 P. 197; Yellowstone County v. First Trust & Sav. Bank, 46 Mont. 439, 128 P. 596; Cumberland County v. Harnett County, 157 N.C. 514, 73 S.E. 195; Burgin v. Smith, 151 N.C. 561, 66 S.E. 607; State v. Board of Comrs. 36 S.D. 606, 156 N.W. 101; 15 C. J. p. 388, § 1, p. 420, § 53, p. 632, § 347.
Rules and regulations for local county government and control, except as otherwise provided for in the Constitution, are as much within the control of the state as those matters which are more general and statewide. Meehan v. Shields, 57 Wash. 619, 107 P. 835; Williams v. Morehouse Parish Police Jury, 135 La. 445, 65 So. 604; Burleigh County v. Kidder County, 20 N.D. 27, 125 N.W. 1063; 15 C. J. 632, § 347g 1; 7 R. C. L. 923, 926, note 3,938, § 15, 943, note 9, citing Pierson v. Minnehaha County, 28 S.D. 534, 124 N.W. 212, 38 L.R.A. (N.S.) 261, 267 and note; note in 27 L.R.A. (N.S.) 1128; Storey v. Murphy, 9 N.D. 115, 81 N.W. 23.
The Constitution does not limit the supervision by the state of fiscal affairs of counties. The state also has the power to say what the duties of county officers shall be. State v. Board of Comrs. 36 S.D. 621, 156 N.W. 101; State v. Lewis, 18 N.D. 133, 119 N.W. 1037.
Section 61 of the Constitution of North Dakota, providing that no bill shall embrace more than one subject, does not require an act creating the commission and a separate act for each duty of the commission. Great Northern R. Co. v. Duncan (N.D.); State ex rel. Gaulke v. Turner, 37 N.D. 635, 164 N.W. 924; 36 Cyc. 951 (II.) and note 6 with case cited therein; 32 Ark. 414, 420, 421, citing Cooley, Const. Lim. 142; Arbuckle v. Pflaeging (Wyo.) 123 P. 918.
Sullivan & Sullivan and T. F. Murtha, for respondents.
The Constitution is mandatory upon the court and the legislature. State v. Nomland, 3 N.D. 427; Re Corliss, 16 N.D. 427; Cooley, Const. Lim. 36, 6th ed. pp. 88-98, 168, 179, 180; 12 C. J. 470, § 145; State v. Schultz (N.D.) 174 N.W. 81.
The courts take judicial notice of the history of bills on their passage through the legislature. State v. Schultz (N.D.) 174 N.W. 81; Somers v. State (S.D.) 58 N.W. 804; 16 Cyc. 907; Cooley, Const. Lim. 6th ed. p. 162.
The question of whether or not an amendment is such as to change the original purpose of a bill is a question of law for the court. Re House Bill No. 250 Colo. 57 P. 49; Re House Bill, No. 321 Colo. 21 P. 472; Sackrider v. Saginaw Co. (Mich.) 44 N.W. 165; Weis v. Ashley (Neb.) 81 N.W. 318; Pottawatomic Co. v. Alexander (Okla.) 172 P. 436; State v. Chong Ben (Ore.) 173 P. 258; 36 Cyc. 951 (11).
The title to the act is not broad enough to cover the designation of official newspapers. Railroad v. Smythe, 103 F. 376; Simpson v. Union Stock Yards Co. (Kan.) 110 F. 799; Sockrider v. Supervisors (Mich.) 44 N.W. 165; Weis v. Ashley (Neb.) 81 N.W. 318; State v. Chong Ben (Ore.) 173 P. 258.
Sutherland, Stat. Constr. p. 87; Astors v. Railroad Co. (N.Y.) 30 N.E. 594; Boom Co. v. Prince, 34 Minn. 79, 24 N.W. 361; State v. Kinsella, 14 Minn. 524, Gil. 305; State v. Smith, 35 Minn. 257, 28 N.W. 241; Brown v. State, 79 Ga. 324, 4 S.E. 861; State v. Everage, 33 La.Ann. 120; Brooks v. People (Colo.) 24 P. 553; Montgomery v. State, 88 Ala. 141, 7 So. 51; Igoe v. State, 14 Ind. 239; Sanilac County v. Auditor General, 68 Mich. 659, 36 N.W. 794; Crubbs v. State, 24 Ind. 205.
GRACE, J. ROBINSON, J., concurs. BRONSON, J., did not participate. BIRDZELL, J., CHRISTIANSON, Ch. J., concurring in part and dissenting in part.
The plaintiff, a taxpayer, resident, and elector of Grant county, brings this action against the defendants, to restrain and enjoin them from causing the official printing and publications of the county of Grant to be published or printed in any newspaper of Grant county, other than the Grant County Leader; and from paying, or causing to be paid, any of the money of Grant county, for any county and official printing or publication, to other than the Grant County Leader.
The complaint, in substance, sets forth: That the plaintiff is a resident, elector, and taxpayer of Grant county; that Beery is the duly elected, qualified, and acting county auditor of Grant county, and that the other defendants above named are the duly qualified and acting county commissioners thereof; that the Grant County Leader is printed and published in that county, and was, about the 1st day of August, 1919, by the state publication and printing commission, under the provisions of chap. 188 of the Session Laws of 1919, designated as the official newspaper in and for that county; that the county commissioners above mentioned, in disregard of the provisions of chap. 188, at the first meeting of the board, held in Carson, the county seat of Grant county, did, on the 5th day of January, 1920, by resolution, designate three newspapers, other than the Grant County Leader, as the official papers in and for Grant county; namely, Carson Press, New Leipzig Sentinel, and Shield Enterprise; that none of said papers last mentioned were designated as official newspapers by the state publication and printing commission, though they have complied with the requirements of article 82 of chap. 38, of the Political Code of the state of North Dakota, as contained in the Comp. Laws 1913; that the defendants, at their January, 1920, meeting, awarded to the said three newspapers official reports of the board of county commissioners, for publication, and that they have printed and published the same; and that, unless the defendants are restrained, they will continue to cause the publication of all subsequent proceedings of said board of county commissioners, and all legal and official printing and publication of Grant county, to be published and printed in the three newspapers above mentioned; and, unless restrained and enjoined, will cause the money of Grant county to be expended, for said publication and printing at legal rates.
The defendants demurred to the complaint, on the grounds that it does not state facts sufficient to constitute a cause of action.
The demurrer, in further allegations, challenges the constitutionality of chap. 188, claiming it is unconstitutional on the ground that it is in conflict with chapters 58 and 61, and what is commonly designated as the home-rule provisions of the Constitution, which are §§ 166 to 173, inclusive; and further claim that it contravenes the 14th Amendment to the Constitution of the United States; and maintain that it abridges their privileges and immunities, as citizens of the United States, and deprives them, as such, of due process of law; and maintain that the law in question confers an arbitrary and unreasonable power upon the state publication and printing commission, by conferring upon them the authority to name the official newspapers of the various counties of the state, in which the publication of process and notices, and other matters, the publication of which is required or authorized by law, must be published. The demurrer was heard before W. C. Crawford, Judge, who entered an order sustaining it.
We may consider the sections of the Constitution involved, in the order in which they are above set forth. Section 58 thereof is as follows: "No law shall be passed except by a bill adopted by both houses, and no bill shall be so altered and amended on its passage through either house as to change its original purpose."
Section 61 is as follows: "No bill shall embrace more than one subject, which shall be expressed in...
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