Merrill v. State

• Citation: 91 N.W. 418,65 Neb. 509
• Parties: MERRILL v. STATE.
• Decision Date: 10 July 1902
• Court: Supreme Court of Nebraska

65 Neb. 509

91 N.W. 418

MERRILL

v.STATE.

Supreme Court of Nebraska.

July 10, 1902.

Syllabus by the Court.

1. The provisions of the act of the legislature of 1899, being chapter 35 thereof (chapter 33, Comp. St. 1901), creating a food commission, making the governor the food commissioner, providing for the appointment of a deputy food commissioner, and defining the duties of the officers so provided for, do not contravene the provisions of section 26, art. 5, of the constitution, wherein it is declared: “No other executive state office shall be continued or created and the duties now devolving upon officers not provided for by this constitution shall be performed by the officers herein created.”

2. Nor does said act conflict with section 11, art. 3, of the constitution, declaring “that no bill shall contain more than one subject.”

3. Where a part of an act has been declared invalid, and the remainder is complete and perfect in all its parts, and is capable of execution, it will be upheld and enforced unless it is apparent that the invalid part was an inducement to the adoption of the remainder.

4. Held, that the part of the act under consideration, relating to an attempted appropriation for the salary of the deputy food commissioner, which has been declared invalid, was not an inducing element to the passage of the remainder of the act.

Error to district court, Clay county; Stubbs, Judge.

John C. Merrill was convicted of operating a creamery without permit, and brings error. Affirmed.Hainer & Smith, for plaintiff in error.

F. N. Prout, Atty. Gen., and Norris Brown, Dep. Atty. Gen., for the State.

HOLCOMB, J.

Plaintiff in error, defendant below, was convicted of the offense of operating a creamery without having first procured from the food commissioner of the state an annual permit therefor, as provided by section 7, c. 33, Comp. St. 1901, entitled “Food Commission.” He prosecutes error proceedings in this court, contending that his conviction is unlawful for the reason that the statute under which the conviction was had is unconstitutional. No other question is presented by the petition in error or in briefs of counsel.

While it is contended that the statute violates different provisions of the fundamental law, chief reliance as to its unconstitutionality is grounded on the contention that the act violates section 26, art. 5, of the constitution, wherein it is provided that “no other executive state office shall be continued or created, and the duties now devolving upon officers not provided for by this constitution shall be performed by the officers herein created.” It is argued that an executive office called a “food commission” is created, and an executive state officer designated as a “deputy food commissioner” is provided for, contrary to the fundamental law quoted. An examination of the act in question, in the light of the provisions of the constitution referred to, compels us to admit there is some merit for the contention of the defendant, and in doing so we are not to be understood as casting any doubt on the soundness of the prior utterances of this court, holding that new and additional duties may be laid on one or more of the present state officers, and that, for the purpose of efficiently discharging such additional duties, valid legislation may be enacted, providing for deputies or other assistants to aid in the performance of the duties thus imposed, without trenching on the provisions of the constitution heretofore quoted. It is not competent for the legislature to create any other executive state offices than those mentioned in the constitution, or to provide for other state executive officers than those recognized by that instrument. It is competent for that body to enact all needful and necessary laws for the government and welfare of the people not prohibited by that instrument, and to provide especially for the administration and enforcement of such laws by one or more officers of the executive department, and also to provide for such deputies or assistants as seem to be necessary for the discharge of such additional duties if such necessity there be. With these preliminary observations, we will consider briefly the act under consideration, for the purpose of determining whether its alleged unconstitutionality is manifest to and beyond that degree of doubt which is required before we are justified in annulling an act of the legislature on the ground that it conflicts with the paramount law; such consideration to be had with special reference to the construction heretofore placed on this same section of the constitution in the many different prior decisions of this court in relation to the subject.

The act in question is a part of the laws of the legislative session of 1899, being chapter 35 thereof, regulating the manufacturing and sale of foods, providing for a system of reports, inspection, and permits, fixing fees for the same, and providing penalties for violations of the act. We have had occasion once before to consider the act in question, and there held that that part thereof which attempted to appropriate from the state treasury a certain amount as annual salary for the deputy food commissioner was unconstitutional and void. State v. Cornell, 60 Neb. 276, 83 N. W. 72. It is there said, speaking of the act: “The act purports, inter alia, to create a food commission; to make the governor the food commissioner, with authority to appoint a deputy food commissioner at a salary of $1,500 per annum, payable monthly, together with his expenses actually and necessarily incurred in discharging the duties of his office; to authorize such deputy to employ a clerk at a salary not to exceed $75 a month; to define the duties of the food commission and its commissioners; to require dealers in imitation butter and imitation cheese to make reports; to provide for permits for dealers and manufacturers of certain articles and for the inspection thereof; to prescribe fees and to provide for their payment into the state treasury and penalties for the violation of the provisions of the act.” It is especially urged against the validity of this act that it in terms and in fact makes the deputy food commissioner the executive officer of the commission created by the act, and charges him with the discharge of the duties therein imposed, rather than the governor, who is designated as food commissioner, and who is an executive officer recognized by the constitution. While, as heretofore intimated, there is some ground for this contention, we are of the opinion that a careful consideration of the entire act must lead to the conclusion that the legislation is of the same general character, and involves the same exercise of power, as that of the enactments creating a state board of transportation and a state labor bureau, each of which has been declared a valid exercise of legislative power, and not in contravention of the section of the constitution appealed to as forbidding such legislation. Much other legislation of the same kind might also be referred to, but the above will suffice for all present purposes. While the deputy food commissioner is given authority almost coextensive with the governor as food commissioner, a critical analysis of the act discloses that he acts only in the capacity of a deputy, controlled by and under the direction of the governor, who is primarily charged with the duties of enforcing the provisions of the act, and who is the responsible officer mentioned and recognized as the one upon whom the duty devolves of carrying out the provisions of the act. The deputy is appointed by the governor; holds his office during the pleasure of the appointing power; and when acting for and instead of the governor,--that is, as deputy of the food commissioner,--he is given and may exercise equal power and authority, subject, however, to the approval of the food commissioner. He is required to give bond, make a report to the governor at stated times, and is authorized to appoint a clerk; but these circumstances alone would not make him an executive officer. The legislature may, we apprehend, prescribe what are the duties of a deputy officer as well as the principal. The other provisions of the act provide in substance that the law shall be enforced by the food commission through its duly accredited...