Haverly v. State ex rel. Halpin

• Citation: 88 N.W. 171,63 Neb. 83
• Parties: HAVERLY, COUNTY CLERK, v. STATE EX REL. HALPIN.
• Decision Date: 04 December 1901
• Court: Supreme Court of Nebraska

63 Neb. 83

88 N.W. 171

HAVERLY, COUNTY CLERK,

v.STATE EX REL. HALPIN.

Supreme Court of Nebraska.

Dec. 4, 1901.

Syllabus by the Court.

1. Legislation which is not within the scope of the title of the act is unconstitutional.

2. No law can be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed.

3. That portion of section 11, art. 2, c. 13, Comp. St., relating to the election of an assessor for county purposes in cities having more than 25,000 and less than 40,000 inhabitants, is inimical to section 11, art. 3, of the constitution, and is void.

Error to district court, Douglas county; Estelle, Judge.

Application by the state, on the relation of Ed. Halpin, for a writ of mandamus to David M. Haverly, county clerk. From a judgment granting the writ, defendant brings error. Affirmed.G. W. Shields, for plaintiff in error.

John C. Cowin, for defendant in error.

NORVAL, C. J.

The state, on the relation of Ed. Halpin, instituted a proceeding in mandamus in the court below to compel the respondent, as county clerk of Douglas county, to name in the notices of the general election in November, 1901, the office of county assessor for each of the six precincts of the city of South Omaha, to be filled at said election. At the hearing a peremptory mandamus was issued as prayed, and the respondent has prosecuted error therefrom.

Douglas county is under the commissioner system of government. The city of South Omaha has six wards, and the same number of voting precincts, and the sole question presented for consideration is whether one or six county assessors are to be elected from said city. Section 7, c. 26, Comp. St., entitled “Elections,” provides, inter alia, that “in counties not under township organization, one (1) county judge, one (1) sheriff, one (1) coroner, one (1) county treasurer, one (1) county superintendent of public instruction shall be elected in the year eighteen hundred and seventy nine (1879) and every second year thereafter, and in each precinct two (2) justices of the peace and two (2) constables shall be elected in the year eighteen hundred and seventy nine (1879) and every second year thereafter, except as hereinafter provided, and one assessor, and overseer of highways for each road district shall be elected in the year eighteen hundred and seventy nine (1879) and annually thereafter, and one county commissioner shall be elected annually who shall serve three (3) years.” It is plain enough that the foregoing requires the election annually of an assessor in each precinct. The statute is not susceptible of any other legitimate construction, which is conceded by respondent; but his counsel invokes the provisions of section 11, art. 2, Comp. St., relating to cities having populations between 25,000 and 40,000, within which class is the city of South Omaha. This section declares that “precinct lines in that part of any county, not under township organization, embraced within the corporate limits of any city governed under the provisions of this act shall correspond with the ward lines in such city, and such precinct shall correspond in number with the ward of the city and be coextensive with the same. Provided: that when a ward is divided into election districts, the precinct corresponding with such ward shall be divided so as to correspond with the election district. And provided further,...