Fenton v. Yule

• Decision Date: 30 October 1889
• Citation: Fenton v. Yule, 27 Neb. 758, 43 N. W. 1140 (Neb. 1889)
• Parties: FENTON ET AL. v. YULE, CHAIRMAN, ET AL.
• Court: Nebraska Supreme Court

27 Neb. 758

43 N.W. 1140

FENTON ET AL.

v.YULE, CHAIRMAN, ET AL.

Supreme Court of Nebraska.

Oct. 30, 1889.

Syllabus by the Court.

1. An act was approved February 26, 1889, to amend the second division of section 25 of chapter 18 of the Compiled Statutes of 1887, relating to county buildings and offices, as amended by act approved March 31, 1887. Held, that the act of 1889 is valid and in force from its passage, and is not obnoxious to sections 11 and 15 of article 3 of the constitution of this state. State v. Babcock, 23 Neb. 128, 36 N. W. Rep. 348.

2. Although there be apparent confusion in the application of an amendatory act of the legislature to provisions sought to be amended or repealed, held, that where the intention of the legislature, within constitutional limits, is not doubtful, and the amendatory act not incongruous with the title and purview of the amended statute, the amendment is valid. Comstock v. Judge, 39 Mich. 195.

3. An act passed, enrolled, approved, and deposited with the secretary of state is an act in force, competent of amendment, though by error, inadvertency, or misconception it may not have been compiled and published in the same manner with all other laws of the state. The work alone of the editor and compiler of general statutes will not invalidate an act of the legislature.

Appeal from district court, Gage county; BROADY, Judge.A. D. McCandless and O. P. Mason, for appellants.

Hugh J. Dobbs and G. M. Lambertson, for respondents.

COBB, J.

On July 8, 1889, Robert Fenton, A. Perkins, John Mordhorst, Michael Keckley, Patrick Murphy, and J. W. Briden, the plaintiffs, filed their petition for an injunction in the district court of said county, against Thomas Yule, as chairman of the county board of supervisors, and George E. Emery, county clerk, alleging that the plaintiffs are citizens and tax-payers and duly-qualified electors of said county, which is duly organized under the laws for the government and administration of counties. That the defendants are duly elected and qualified officers of the county, as designated, and that on May 7, 1889, said chairman and the board of county supervisors called a special election to be held in said county on June 18th following, to submit to the legal voters, for their acceptance or rejection, the proposition of issuing bonds of the county to the amount of $100,000, of the denomination of $1,000 each, for the purposes of building and completing a court-house on block 24 of Cropsey's addition to the city of Beatrice, at the county-seat of said county, the entire proceeds, or so much as required, to be devoted to that purpose; said bonds to be payable to the bearer at the state's fiscal agency in New York city, at the expiration of 20 years from date, with interest at 5 per cent. per annum, to be redeemable at the option of the county, after 10 years from date, with interest to be paid annually, on interest coupons attached, at said fiscal agency,--the bonds to bear date August 1, 1889, and the coupons to be payable August 1st of each year thereafter; with the proposition to levy according to law, in addition to the usual taxes, annually, a sufficient tax to pay said interest, and, after the expiration of nine years from the date of the bonds, a sufficient tax to pay 10 per cent. of the principal annually thereafter, and for the year preceding the maturity of the bonds a tax sufficient to discharge the residue of principal and interest. That notice of the election was duly given, and it was held, returned, and canvassed in the same time and manner, and by the same officers, as required by law, at a general election in this state, by which it appears there were cast 5,059 votes, of which 2,589 were in favor of the proposition, and 2,470 against it. This election was called under an act entitled “An act to amend the second subdivision of section 25, article 1, chapter 18, of the Compiled Statutes,” approved February 26, 1889, the defendants claiming authority under said law to issue said bonds. The plaintiffs aver that the proposition was not carried, and that the statute under which the same is claimed to be authorized is unconstitutional and invalid, for the reasons: (1) That the statute does not set out the entire section amended. (2) The substance amended, so far as it attempts to grant a power to borrow money and issue bonds, is not germane to the subject-matter of the second subdivision of the section amended. (3) The subject of the amendment--the power to borrow money and issue bonds--is not within the title of the amendatory act. (4) The amendatory act could not be valid unless it be held by implication to amend and repeal sections 27-30, art. 1, c. 18, Comp. St., which require that two-thirds of the votes cast shall be given for the adoption of the proposition; no reference or amendment to said sections being made in said amendatory act. That the defendants, in violation of law, claim that, insomuch as the proposition received a majority of the votes, it is carried, and they have the power to levy and collect the special tax provided for in the call for said election, and by law to issue, dispose of, and redeem said bonds, and the interest thereon, notwithstanding such power is derived solely from the provisions of section 30, art. 1. c. 18, Comp. St., which require that said proposition must have received two-thirds of all the votes cast. Wherefore the plaintiffs pray for an injunction against the defendants, restraining and enjoining them from proceeding in any respect to carry out the proposition submitted at said special election, etc. Whereupon, on July 8, 1889, the following order was made: “The petition having been presented to the district judge of the first judicial district of Nebraska, and deeming it proper that the defendants should be heard before granting the temporary injunction within prayed, in the presence of attorneys for both parties, the 13th July, 1889, at 2 P. M., at the court-house, in Beatrice, is appointed as the time and place for the hearing of the application therefor. In the mean time defendants are restrained as prayed within, and until such hearing and ruling thereon, on giving bonds according to law in the sum of $1,000. J. H. BROADY, Judge.” On July 15th following, the defendants demurred to the petition, that it does not state facts sufficient to constitute a cause of action. On July 17th following, it was ordered by the court that the demurrer be sustained, the injunction be dissolved, and the bill dismissed, at costs of plaintiffs, and the cause brought to this court by appeal.

The first point presented by appellants in the brief of counsel is that the act of the legislature approved February 26, 1889, entitled “An act to amend the second division of section 25 of chapter 18 of the Compiled Statutes of Nebraska of 1887,” in relation to county buildings and offices, and to repeal said second division, is invalid, and without the force of law; and in support of this proposition attention is called to the fact that that part of chapter 18 of the Compiled Statutes of 1887 embracing section 25 was passed by the legislature and approved on the 30th day of March, 1887, and that on the day following, to-wit, March 31, 1887, an act was passed and approved amending said act, which act of March 31st was not carried into the Compilation of 1887, other than as a foot-note to the page containing said section 25, with a query whether it was in force; and the conclusion is drawn that the act of 1889 was directed to, as well in the title as the purview, and sought to amend a repealed and superseded section. This question was before the court substantially, if not precisely, in the case of State v. Babcock, 23 Neb. 128, 36 N. W. Rep. 348. That case was submitted upon a stipulation, from which I extract the following: “It is hereby stipulated and agreed, by and between the parties hereto, that the annexed transcript, * * * which is incorporated into and made a part of this stipulation, is a true and accurate history and transcript of all things connected with and pertaining to the voting of $5,000 of bonds of the county of Logan, state of Nebraska, on the 1st day of October, 1887; said bonds having been presented to the auditor of state for registration, and he having refused to register said bonds solely on the...