Laverty v. Cochran

• Decision Date: 30 January 1937
• Docket Number: 30029.
• Citation: 271 N.W. 354,132 Neb. 118
• Parties: LAVERTY v. COCHRAN, GOVERNOR, ET AL.
• Court: Nebraska Supreme Court

271 N.W. 354

132 Neb. 118

LAVERTY v. COCHRAN, GOVERNOR, ET AL.

No. 30029.

Supreme Court of Nebraska.

January 30, 1937

Syllabus by the Court.

1. The legislature may not impose judicial power upon the executive officers or delegate to them legislative power.

2. Generally, judicial power is the authority to hear and determine a controversy as to rights and upon such determination to render a judgment binding upon the disputants.

3. The authority to hear and determine controversies between public officers, the state, counties, cities and other municipal corporations, subdivisions of the state and the state bonding board is a judicial power.

4. The board of the state bonding fund is the board of educational lands and funds, composed of the governor, the treasurer, the secretary of state, the attorney general, and the commissioner of public lands and buildings, all executive officers of the state, and is purely administrative in character.

5. A constitutional officer can only be removed by impeachment as provided in the Constitution (Const. art. 3, § 17).

6. It is beyond the power of the legislature to provide for the removal or suspension of a constitutional officer, where the Constitution creates the office, fixes its terms, and the grounds and manner of removal.

7. The bond required of public officers by the Constitution may be defined as a contractual obligation that such officer will faithfully discharge the duties of his office.

8. An official bond is an obligation to pay upon a breach of the conditions thereof.

9. The Constitution requires all constitutional state officers to give a bond for the faithful performance of official duties, and the legislature is without power to nullify this plain mandatory provision of the Constitution.

10. Although a statute may be invalid or unconstitutional in part, the other part will be sustained where it can be separated from the part which is void.

11. The parts of the statute which are valid must be capable of being executed independently of the invalid parts in order to be operative.

12. The statutory provision expressing legislative intent as to the separability of the various parts of a statute is merely an aid to judicial interpretation.

13. Where sections constituting an inducement for the passage of an act are invalid, the entire act must fall, notwithstanding the saving clause.

14. Where the connection between the invalid parts and the other parts of a statute is such as to warrant the belief that the legislature would not have passed the act without the invalid parts, the whole act must be held inoperative.

15. The state bonding act was a scheme of legislation to accomplish a particular purpose, and when said purpose fails because of invalid provisions, the entire act is unconstitutional.

16. Questions presented on appeal but not necessary to a decision need not be determined.

Appeal from District Court, Lancaster County; Shepherd, Judge.

Suit by Alexander Laverty against Robert L. Cochran and others. From the judgment the plaintiff appeals, and the defendants file a cross-appeal.

Reversed.

Peterson & Devoe, of Lincoln, for appellant.

John J. Ledwith and Ginsburg & Ginsburg, all of Lincoln, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

DAY Justice.

In 1935 the legislature enacted what is commonly known as the state bonding act (Laws 1935, c. 23 [Comp.St.Supp.1935, §§ 12-201 to 12-225]) for the purpose of bonding public officials and employees of the state and its subdivisions. The validity of this act is challenged by a taxpayer of Lancaster county in this suit to enjoin the proper state officials from putting its provisions into operation. Although the trial court held that certain pro visions contravened constitutional provisions, it also held that they were separable and did not constitute an inducement to the passage of the remainder of the act. It sustained most of the provisions of the law. From this judgment, the plaintiff appeals.

The trial court properly determined that section 12 of the act (Comp.St.Supp.1935, § 12-213), in so far as it undertook to vest the governor of the state with power to remove or suspend constitutional state officers without trial, was unconstitutional for the reason that it attempts to delegate judicial power to the governor of the state. A brief consideration of the fundamental and basic law of the state confirms this judgment. Section 1, art. 2 of the Constitution, states:

" The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted."

This section, common to the state Constitutions of the United States, has an historical background. Governments without this division of powers had been generally oppressive. The political philosophy of Montesquieu in his Spirit of Laws probably influenced early framers of American Constitution. " There is no liberty," he wrote " if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislature, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor."

Nebraska's Constitution contains an absolute prohibition upon the exercise of the executive, legislative and judicial powers by the same person or the same group of persons. It has remained a part of the Constitution unchanged since 1875. It is more certain and positive than the provisions of the federal Constitution and those of some of the states, which merely definitely divided the three powers of government.

Not only does the foregoing constitutional provision require the separation, but another section, section 1, art. 5 of the Constitution, places the judicial power in the courts:

" The judicial power of the state shall be vested in a supreme court, district courts, county courts, justices of the peace, and such other courts inferior to the supreme court as may be created by law; but other courts may be substituted by law for justices of the peace within such districts, and with such additional civil and criminal jurisdiction as may be provided by law."

The question presented here is of vital importance and challenges our serious consideration. There is, of course, a very strong presumption that a legislative act is valid. There is also a strong inclination of a court not to criticize or interfere with the acts of another department. However, the Constitution is still recognized as the supreme law of the state and as a limitation of power of all departments and all officials. At present, it is the recognized function of the court to trace the line which marks the limits of power. Otherwise, there would be a conflict and overlapping of the various powers of government. This question frequently has been before the court. It is the law of this state that the legislature may not impose either upon the executive or the judiciary duties which do not properly belong to it. Searle v. Yensen, 118 Neb. 835, 226 N.W. 464, 69 A.L.R. 257.See, also, In re Opinion of the Justices (1935) 87 N.H. 492, 179 A. 357; Fugate v. Weston, 156 Va. 107, 157 S.E. 736; State v. Taylor, 27 N.D. 77, 145 N.W. 425.As applicable to the case at bar, the rule is that the legislature may not impose judicial power upon the executive officers or delegate to them legislative power.

It has been stated that the phrase " judicial power" is not capable of precise definition applicable to all cases and all circumstances. 34 C.J. 1183. An examination of the cases demonstrates the difficulty of judicial definition. A sufficient definition for the purposes of this case is that generally judicial power is the authority to hear and determine a controversy as to rights and upon such determination to render a judgment binding upon the disputants. Horbach v. Tyrrell, 48 Neb. 514, 67 N.W. 485, 489, 37 L.R.A. 434; State v. Blaisdell, 22 N.D. 86, 132 N.W. 769, Ann.Cas. 1913E, 1089.

The judicial power which this act seeks to confer upon administrative officers is mentioned in sections 12-213 and 12-214, Comp.St.Supp. 1935. Section 12-213 provides that the board may bring an action against a bonded official where it " shall be of the opinion that the interests of the state bonding fund are jeopardized by the misconduct or inefficiency of any public employee. * * * During the pending of such proceedings, such public employee may by the Governor be suspended from performing the duties of his office."

Section 12-214 provides: " The Board may after due investigation at any time, if in its judgment the interests of the state bonding fund require such action, cancel the liability of the bonding fund for the acts of any public employee, to take effect thirty days after written notice of such cancellation. In such case the official whose insurance is cancelled shall be deemed temporarily suspended, as provided in the preceding section, until such time, if any, as the order of cancellation shall be rescinded by the Board, or by order of court as hereinafter provided."

The authority to hear and determine controversies between public officers, the state, counties, cities and other municipal corporations, subdivisions of the state and the state bonding fund is a judicial power.

The administrative board of the state bonding fund is the board of educational lands and funds, composed of the governor, the treasurer, the secretary of state, the...