Dorrance v. Douglas County

• Decision Date: 07 May 1948
• Docket Number: 32373.
• Citation: 32 N.W.2d 202,149 Neb. 685
• Parties: DORRANCE v. DOUGLAS COUNTY et al.
• Court: Nebraska Supreme Court

32 N.W.2d 202

149 Neb. 685

DORRANCE v. DOUGLAS COUNTY et al.

No. 32373.

Supreme Court of Nebraska

May 7, 1948

Syllabus by the Court.

1. If a law is general and uniform throughout the state, acting alike upon all persons and localities of a class, it is not subject to objection as local or special legislation.

2. The power of classification rests with the Legislature and it will not be interfered with by the courts if real and substantial differences exist which afford a rational basis for classification.

3. The statutory allowance for boarding occupants of county jails is not salary within the meaning of section 23-1101 R.S.1943. A statutory requirement, therefore, that such service be provided at actual cost does not tend to fix sheriffs' salaries higher in counties of lesser population than in those with a greater population falling within the purview of the act.

4. Chapter 86, Laws 1943, is not a local or special law within the prohibition of article III, section 18, Constitution of Nebraska.

5. Chapter 86, Laws 1943, does not abridge the privileges and immunities of county sheriffs affected by the act, or deny them the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States.

6. Chapter 86, Laws 1943, relating to county jails and the fees of sheriffs with reference to the care of prisoners therein contains but one subject and is not within in the prohibition of article III, section 14 Constitution of Nebraska.

Fitzgerald & Smith, Seymour L. Smith and Robert L. Smith, all of Omaha, for appellant.

James J. Fitzgerald and Ephraim L. Marks, both of Omaha, Walter R. Johnson, Atty. Gen., and Homer L. Kyle, Asst. Atty. Gen., for appellees.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CARTER Justice.

This is an action for a declaratory judgment to have chapter 86, Laws 1943, declared unconstitutional. The act now appears as sections 33-117, 33-117.01, 47-112.01, 47-113, and 47-113.01, R.S.1943. The trial court held the act to be valid and plaintiff appeals.

On January 9, 1947, the plaintiff as sheriff of Douglas County commenced this action in which he alleged that the Douglas County jail houses federal, state, county, and city prisoners. The evidence shows that in the boarding of such prisoners the sheriff has made an average annual profit of approximately $11,000, the difference between the amounts allotted for the purpose by statute and the actual cost of so doing. The act in question became effective on January 9, 1947, by its terms, and provides that after said date counties having a population of 200,000 or more inhabitants shall provide quarters and equipment for preparing and serving meals to prisoners confined in the county jail, and that all statutory allowances for boarding prisoners shall be paid to the county. It further provides that the sheriff shall have full charge and control of the quarters and service, and shall furnish all meals, washing, fuel, lights, and clothing for prisoners at actual cost to the county. Other provisions are set forth which are not important here. Plaintiff contends that the act is unconstitutional because it is special legislation prohibited by article III, section 18, Constitution of Nebraska; that it violates the Fourteenth Amendment of the Constitution of the United States; and that it is violative of article III, section 14, Constitution of Nebraska.

It is conceded that Douglas County is the only county in Nebraska having a population in excess of 200,000 inhabitants. The plaintiff does not challenge the right of the Legislature to enact such legislation if made applicable to all counties. The objection is that it applies to one county alone and is therefore special legislation and not a general law.

All reasonable doubts must be resolved in favor of constitutionality in construing a legislative act. Sommerville v. Johnson, 149 Neb. 167, 30 N.W.2d 577. For purposes of legislation the Legislature may classify counties when the classification rests upon reasonable differences of situation or circumstances which call for distinctive legislation for the class. State ex rel. Cone v. Bauman, 120 Neb. 77, 231 N.W. 693. Where a class of counties is established on the basis of population in such a manner that other counties may in the future enter the class without additional legislation, the law is considered to be general in its nature. State v. Frank, 61 Neb. 679, 85 N.W. 956. The present act is not unconstitutional because of the fact that it is presently applicable to Douglas County alone. Where reasons exist for a legislative classification, which are not superficial or baseless, the courts may not properly interfere. Such classifications do not violate constitutional provisions, against local and special legislation. Allan v. Kennard, 81 Neb. 289, 116 N.W. 63. While such classifications are necessarily somewhat arbitrary, they have been uniformly upheld by the courts. The care and feeding of prisoners in the various counties of the state is a matter which is affected by the population of the county. The evidence shows different conditions existing in the various counties of the state. The number of prisoners to be fed varies, generally in proportion to the population of the county. The facilities provided are not uniform and the labor contributed by the sheriffs and their families is a variable factor. The record shows that the classification of counties on a population basis is reasonable under the existing situation and that the Legislature was warranted in making such a classification for the purposes of the act. Under these circumstances it is not the province of the court to reexamine the evidence upon which the Legislature acted. If the legislative classification is upon a rational basis, and consequently not unreasonable or arbitrary, it meets the requirements of the Constitution.

It has been a common legislative practice to classify counties and cities on a population basis in prescribing the manner of conducting their functions. In sustaining such classifications it has been recognized that problems of administration have a direct relation to population. It is possible that an occasional exception might exist or that one might by speculation create a possible exception, but this cannot operate to change the rule. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330.

It is argued that the classification of counties for the purpose of fixing salaries carries with it the fact that the larger the population the greater is the responsibility of county officers and that the salaries of public officials cannot properly be made greater in the less populous counties than in the more populous ones. This is generally true and the Legislature has complied with the rule in fixing such salaries. S. 23-1101 to s. 23-1110, R.S.1943. It is then contended that the statute before us makes it possible for a sheriff in a county of lesser population to receive greater emoluments from his office than does the sheriff of Douglas County. The difficulty with this contention is that the allowances made for the boarding of prisoners is not salary within the meaning of the statute fixing the salaries of sheriffs, and no complaint can properly be made, based on a salary differential. This being so, the act is not unconstitutional for that reason. It does not tend to fix sheriffs' salaries higher in counties of lesser population than Douglas County.

It is next argued that the act abridges the privileges and immunities of plaintiff and denies him the equal protection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. This contention is based on the claim that the act denies one within a class the privileges and immunities of others in the same class, a question we have discussed in relation to the Nebraska Constitution. The Supreme Court of the United States has reached no different conclusion in cases similar in principle. In Budd v. People of State of New York, 143 U.S. 517, 12 S.Ct. 468, 36 L.Ed. 247, it was held that a statute which applies to elevator owners in places having a population of 130,000 or more does not deprive the owners of the equal protection of the laws within the meaning of the Fourteenth Amendment. In Mason v. Missouri, 179 U.S. 328, 21 S.Ct. 125, 45 L.Ed. 214, it was held that a registration law based on population, when there is in fact but one city in the class, does not deny to the citizens of such city the equal protection of the laws within the meaning of the Fourteenth Amendment. See, also, Ft. Smith Light & Traction Co. v. Board of Improvement of Paving District No. 16, 274 U.S. 387, 47 S.Ct. 595, 71 L.Ed. 1112; Phelps v. Board of Education, 300 U.S. 319, 57 S.Ct. 483, 81 L.Ed. 674. We hold that chapter 86, Laws 1943, is not violative of the Fourteenth Amendment to the Constitution of the United States.

Plaintiff next urges that the act contravenes article III, section 14 of the Nebraska Constitution in that it contains more than one subject. We think this objection is controlled by the case of Endres v. McDonald, 115 Neb. 827, 215 N.W. 114. There we west dealing with chapter 86, Laws 1925. The act was intended as an amendment to section 3006, Comp.St.1922. This section as amended became section 47-111, Comp.St.Supp.1941, which in turn is one of the sections amended by chapter 86, Laws 1943, presently before us. It was plaintiff's contention in the Endres case that chapter 86, Laws 1925, did not operate to amend or repeal section 2381, Comp.St.1922, which later became section 33-120, Comp.St.Supp.1941, and in turn one of the sections amended by the act now before us...