In re Groff

• Decision Date: 09 June 1887
• Citation: 33 N.W. 426,21 Neb. 647
• Parties: IN RE GROFF AND OTHERS.
• Court: Nebraska Supreme Court

21 Neb. 647

33 N.W. 426

IN RE GROFF AND OTHERS.

Supreme Court of Nebraska.

June 9, 1887.

Syllabus by the Court.

A bill to reapportion the state into judicial districts, and to provide judges therefor, passed the legislature in due form, but, before being signed by the governor, was changed, reducing the number of judges to one in the Second judicial district. Held, that the act being complete in itself as to the First, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and Twelfth districts, and capable of being executed, was not affected by the invalidity of that part of the act relating to the Second district. State v. McLelland, 18 Neb. 243, 25 N. W. Rep. 77;State v. Robinson, 20 Neb. 96, 29 N. W. Rep. 246, distinguished, that the provision in regard to the Second district was null and void.

The act of 1885, providing for two judges in the Second district, is valid, and the number of such judges cannot, under the constitution, be changed oftener than every four years.

The appropriation made by the legislature of $95,000 for the payment of salaries of 19 judges of the district court is an appropriation in gross, to be applied, as far as necessary, to the payment of the salaries of all judges of the district courts.

Submission of controversy.William Marshall and John H. Ames, for the petitioners.

No appearance contra.

MAXWELL, C. J.

This case is submitted to the court, and, as the action is real, and the facts agreed upon appear to bring the case within the provisions of section 567 of the Code of Civil Procedure, it is our duty to consider it, and render a decision upon the questions involved. The agreed statement of facts is as follows:

“ To the Honorable, the Judges of the Supreme Court of the State of Nebraska:

Your petitioners, the undersigned, respectfully represent and show unto your honors that, pursuant to the annexed act of the legislature of this state, your petitioners, Lewis A. Groff and M. R. Hopewell, have been, by the governor of this state, duly appointed each as one of the judges of the district court for the Third judicial district of this state, and have duly qualified and entered upon the discharge of their duties as such; and that in like manner, and pursuant to the same authority, your petitioner William Marshall has been appointed, and has qualified and entered upon the discharge of his duties, as one of the judges of the district court for the Fourth judicial district; and that, in like manner your petitioner T. O. C. Harrison has, pursuant to the same authority, been appointed and has qualified and entered upon the discharge of his duties as one of the judges of the Ninth judicial district; that your petitioner Stephen B. Pound was duly elected judge of the district court of the Second judicial district at the general election in October, 1875, and has since been twice elected to said office upon the expiration of his term, so that he has held said office continuously from the date of his said first election down to the present time, and still does continue to occupy and enjoy the same; and that pursuant to an act passed and approved March 10, 1885, the Hon. Samuel M. Chapman was, at the general election in November, 1886, duly elected to the office of additional judge in said Second judicial district, and has since duly qualified and entered upon his duties as such, and still continues to hold and enjoy said office.

And your petitioners further show unto your honors that, at the twentieth session of the legislature of this state, the only appropriation made for the payment of salaries of judges of the district court was as follows:

‘H. R. NO. 446.

An act to provide for the payment of salaries of the officers of the state government.

District Court. Salaries of nineteen judges at $2,500, $47,500; $95,000. Salary of nineteen stenographers, at $1,500, $28,500; $57,000.'

And your petitioners further show that certain doubts and controversies have arisen as to the validity and construction of the above-mentioned acts of the legislature, insomuch that the titles of your said petitioners, and of said Chapman, to their respective offices, have been drawn in question, and as to the right of your petitioners to receive and draw their respective salaries as incumbents of said offices, and as to the duty and authority of your petitioner, H. A. Babcock, auditor of state, to draw and deliver his warrant upon the treasurer of the state for the payment of the same.

And your petitioners further show that said doubts and controversies have arisen from the following facts appearing upon the legislative records of this state, to-wit: First. That said act first herein mentioned was introduced into the senate at said twentieth session as a measure entitled ‘Senate File No. 174. A bill for an act to apportion the state into judicial districts, and for the appointment and election of officers thereof;’ that, by the bill so introduced, the county of Lancaster being a part of the territory theretofore comprised in the Second judicial district, was constituted a district by itself, bearing that number, and the counties of Cass and Otoe, being the remainder of said territory, were constituted a district by themselves and numbered the Eleventh, and by a proviso it was declared that in each of said districts there should be one judge, and that in the First, Fourth, Ninth, and Seventh districts each there should be two judges; that afterwards, by amendment, the clause creating said Eleventh district was stricken out, and the counties of Cass and Otoe restored to the Second district; that thereafter the bill was by the house so amended as to strike the said First district from the clause, providing that in each of certain districts there should be two judges; that thereafter the bill was so amended by the house that the Second district was inserted in the clause of the bill providing that in each of certain districts there should be two judges; and that thereafter a further amendment was made by the house by which the First district was also inserted in said clause; and that, as so amended, the bill was passed by the house and concurred in by the senate, and ordered to be enrolled so as to incorporate both of said amendments, but that by some fault or oversight, the amendment including the Second district in said clause was omitted by the person or persons intrusted with the enrollment thereof, so that the same was by inadvertence presented to the governor, and signed by him, without said omission having been discovered. Second. That said first-mentioned act does not, in express terms, repeal or refer to said act of March 10, 1885.

Your petitioners therefore respectfully pray that your honors will take into due consideration, and advise your petitioners upon, the following matters touching this present inquiry, and necessary for your petitioners to be informed upon, in order that grave and important interests, both of the public and of individuals, may not be put in jeopardy: (1) Is the said first-named act valid for any purpose or to any extent? (2) Is said act, on account of said amendment being omitted in enrollment, invalid as respects the Second judicial district alone? (3) If said act is not invalidated, either as a whole or as respects said Second judicial district, on account of the omission of said amendment, does the same amend, repeal, or supersede the provisions of the act of March 10, 1885, creating an additional judge in the Second judicial district? Smails v. White, 4 Neb. 353. (4) The object of this act being to increase the number of district judges in the state, was it competent for the legislature by that measure to ‘vacate the office of any judge?’ Section 11, art. 6, Const. (5) The constitution having made appropriation to pay the salaries of all the judges whose offices were created by that instrument, should not the legislative appropriation be treated as in addition thereto, and intended to provide for the payment of the salaries of judges whose offices are created by law? State v. Weston, 4 Neb. 216. (6) The office of the district judge being created by law, does not the constitution appropriate the salary therefor, in the same manner as that for the six judges whose offices were created by the constitution? (7) Should not the legislative appropriation for salaries of district judges and stenographers be treated as an appropriation in gross, to be drawn upon without reference to apportionment to particular district?

LEWIS A. GROFF,

M. R. HOPEWELL.

WILLIAM MARSHALL,

T. O. C. HARRISON,

S. B. POUND.

By JOHN H. AMES and

G. M. LAMBERTSON, Attys.

S. M. CHAPMAN,

By G. W. COVELL and

J. B. STRODE, Attys.

H. A. BABCOCK, Auditor, P. A.”

The statute to apportion the state into judicial districts is as follows:

“S. F. 174.

An act to apportion the state into judicial districts, and for the appointment and election of officers thereof.

Be it enacted by the legislature of the state of Nebraska:

Section 1. The state of Nebraska shall be divided into twelve judicial districts, as follows: First district: Richardson, Nemaha, Johnson, Pawnee, and Gage counties. Second district: Lancaster, Otoe, and Cass counties. Third district: Douglas, Sarpy, Washington, and Burt counties. Fourth district: Saunders, Butler, Colfax, Dodge, Platte, Merrick, and Nance counties. Fifth district: Saline, Jefferson, Fillmore, Thayer, Nuckolls, and Clay counties. Sixth district: Seward, York, Hamilton, and Polk counties. Seventh district: Cuming, Stanton, Wayne, Dixon, Dakota, Madison, Antelope, Pierce, Cedar, and Knox counties, Winnebago and Omaha reservations, and the unorganized territory north of Knox county. Eighth district: Adams, Webster,Kearney, Franklin, Harlan, and Phelps counties. Ninth district: Boone, Hall, Wheeler, Greeley, Garfield, Loup, Valley, Howard, Blaine counties, and the unorganized territory west of Blaine county. Tenth district: Buffalo, Dawson, Custer, Lincoln,...