Malin v. Housel

• Decision Date: 11 March 1921
• Docket Number: 21399
• Citation: 181 N.W. 934,105 Neb. 784
• Parties: JOSEPH MALIN ET AL., APPELLANTS, v. NEWTON A. HOUSEL ET AL., APPELLEES
• Court: Nebraska Supreme Court

181 N.W. 934

105 Neb. 784

JOSEPH MALIN ET AL., APPELLANTS, v. NEWTON A. HOUSEL ET AL., APPELLEES

No. 21399

Supreme Court of Nebraska

March 11, 1921

APPEAL from the district court for Madison county:

WILLIAM V. ALLEN, JUDGE.

AFFIRMED.

M. S McDuffee, for appellants.

Clarence A. Davis, Attorney General, J. B. Barnes and M. D. Tyler contra.

TIBBETS C. ROSE, J., dissents.

OPINION

TIBBETS, C.

This action was commenced by Joseph Malin and other residents, taxpayers and electors of school district No. 6 of Madison county, on their own behalf, and on behalf of all other similarly situated, against Newton A. Housel, superintendent of public instruction of said Madison county, and other defendants, commissioners, as provided for under section 2, ch. 243, Laws 1919. The petition alleges, among other things, that defendants are threatening to redistrict all of the territory of said Madison county, including school district No. 6, without authority of law, and prays that defendants be restrained and enjoined from so doing. Plaintiffs' right to the remedy sought depends upon the alleged fact that section 2, ch. 243, Laws 1919, is unconstitutional. The defendants demurred to the petition, and, the demurrer having been sustained and judgment rendered accordingly, plaintiffs appeal.

Since the filing of this case herein, this court has declared in the case of State v. Cox, ante, p. 75, in passing upon the constitutionality of the chapter under discussion "Held constitutional, as not defective in title, and not shown invalidated through failure of proper procedure in enacting." This court also held, in the same case: "The enactment is not in violation of section 11, art. III of the Constitution, providing that "no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended be repealed." This is a recent and last conclusion of this court, and while the constitutionality of the act was attacked on grounds of failure to comply with the proper procedure in procuring its enactment, yet the writer of the opinion, from his investigation, research, and deduction, came to the conclusion he did, which we are not prepared to say is not correct, and by which we are willing to be governed. We were impressed with the logic, force and authorities in the written and oral argument of attorney for plaintiffs, but we cannot agree with him that the decisive question involved was not decided in the case of State v. Cox, supra. The syllabus to the effect that the act is constitutional is only a logical deduction from the language used in the opinion, wherein the court say: "It is argued that the bill did not contain the section or sections sought to be amended, nor repeal the sections of the statute so amended. The bill does not purport to be an amendment of the former sections, but enacts entirely new legislation upon the same subject-matter, and repeals the former sections covering that matter. Such enactments are not in violation of the constitutional requirement that 'no law shall be amended unless the new act contains the...