State ex rel. Attorney General v. Moores

• Decision Date: 23 June 1898
• Docket Number: 9855
• Citation: 76 N.W. 175,55 Neb. 480
• Parties: STATE OF NEBRASKA, EX REL. ATTORNEY GENERAL, v. FRANK E. MOORES ET AL
• Court: Nebraska Supreme Court

76 N.W. 175

55 Neb. 480

STATE OF NEBRASKA, EX REL. ATTORNEY GENERAL, v. FRANK E. MOORES ET AL

No. 9855

Supreme Court of Nebraska

June 23, 1898

ORIGINAL action in the nature of quo warranto presenting to the supreme court the constitutionality of legislative enactments conferring upon the governor power to appoint four members of the board of fire and police commissioners of the city of Omaha. Judgment of ouster against the governor's appointees.

Demurrer sustained, and a judgment of ouster entered against them.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for the state.

McCoy & Olmsted, for Peter W. Birkhauser and other appointees of the mayor of the city of Omaha:

The federal constitution guaranties to every state in the Union a republican form of government. A state with a different form of government could not be admitted. The right of local self-government is an essential element of republican government. Therefore it is not within the power of the legislature to prevent the people of the city of Omaha from selecting their own officers. (1 Curtis, History of Constitution pp. 183, 261; 2 Curtis, History of Constitution pp. 10, 470; Constitution 1866, art. 11, sec. 6; Texas v White, 7 Wall. [U. S.] 700; Penhallow v. Doane, 3 Dal. [U. S.] 54; Poindexter v. Greenhow, 114 U.S. 270; Hoke v. Henderson, 4 Dev. [N. Car.] 1; Allgeyer v. Louisiana, 165 U.S. 578; Ritchie v. People, 155 Ill. 98; Braceville Coal Co. v. People, 147 Ill 66; Frorer v. People, 141 Ill. 171; Low v. Rees Printing Co., 41 Neb. 127; State v. Julow, 129 Mo. 163; Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226; Luther v. Borden, 7 How. [U. S.] 42; Penn v. Tollison, 26 Ark. 545; Calhoun v. Calhoun, 2 S. Car. 283; Texas v. White, 7 Wall. [U. S.] 700; White v. Hart, 13 Wall. [U. S.] 649; Blair v. Ridgely, 41 Mo. 64; Brittle v. People, 2 Neb. 198.)

The statute interfering with the right of local self-government in the city of Omaha is a violation of the following provision of the federal constitution: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Calhoun v. Calhoun, 2 S. Car. 283; Strauder v. West Virginia, 100 U.S. 303.)

Local self-government is an inalienable right, whether wholly written, partly written, partly reserved, or wholly reserved. (Von Holst, Constitutional Law 331; 1 Barbour, Rights of Persons & Property 99; Texas v. White, 7 Wall. [U. S.] 700; Rathbone v. Wirth, 6 App.Div. [N. Y.] 277, 150 N.Y. 459; Burch v. Newbury, 10 N.Y. 374; People v. Porter, 90 N.Y. 68; People v. Albertson, 55 N.Y. 50; People v. Draper, 15 N.Y. 532; State v. Denny, 118 Ind. 382; People v. Hurlbut, 24 Mich. 44; City of Evansville v. State, 118 Ind. 427; State v. Mayor, 72 N.W. 639 [Ia.]; Attorney General v. City of Detroit, 58 Mich. 213; People v. Lynch, 51 Cal. 15; People v. Common Council of Detroit, 28 Mich. 228.)

Police commissioners are local or civil officers. (Pomeroy, Constitutional Law [Bennett's ed.] pp. 595-597; Ex parte Milligan, 4 Wall. [U. S.] 2, 127; Luther v. Borden, 7 How. [U. S.] 1; In re Debs, 158 U.S. 564; State v. Denny, 118 Ind. 449.)

The state cannot levy a tax for local police protection, but the city must do so. (Bradshaw v. City of Omaha, 1 Neb. 16; State v. Mayor, 72 N.W. 639 [Ia.]; People v. Hastings, 29 Cal. 449; Cornell v. People, 107 Ill. 372; Lovingston v. Wider, 53 Ill. 302.)

W. J. Connell, for the city of Omaha.

Points argued:

At the time of the Declaration of Independence the town and the county were the only municipalities known to our political history, and they possessed complete powers of government in all local matters, legislative as well as executive.

Any diminution of the original complete governmental powers of the towns or the counties arose solely from the voluntary surrender of their rights for the purpose of combining under a common government which should be so constituted as to act as an agent for all in all matters of common interest. Powers not surrendered in the written constitutions remain with the people.

The right of local self-government is the possession of the individual citizen. It does not belong to states, nor to towns, counties, nor cities, but to the men who inhabit them, in which respect it differs from the similar right exercised by European municipalities prior to the revolution.

It is an inherent right. It is conferred by no sovereign power, and no sovereign power can take it away.

It is a common and an equal right. It belongs to every American citizen; and a state constitution which should preserve it to some of its citizens and take it away from others would not in that respect conform to the requirements of a republican form of government.

It is a vital, substantial right, and no mere detail of government to be adopted or rejected at the will of the legislature.

Additional references: Cooley, Constitutional Limitations 3; Robertson v. Baldwin, 17 S.Ct. 327; State v. Smith, 14 Wis. 541; State v. Van Beek, 87 Ia. 577; United States v. Ball, 163 U.S. 662; Brown v. Walker, 161 U.S. 591; Gandy v. State, 13 Neb. 445; Hanson v. Vernon, 27 Ia. 73; Police Commissioners v. Louisville, 3 Bush [Ky.] 602; Paducah v. Cully, 9 Bush [Ky.] 325; Buckner v. Gordon, 81 Ky. 671; Van Horn v. State, 46 Neb. 62; Henshaw v. Foster, 9 Pick. [Mass.] 317; People v. Draper, 15 N.Y. 532; Wilkinson v. Adam, 1 Ves. & Bea. [Eng.] 466; 1 Story, Constitution 408; Holmes v. Lansing, 3 Johns. Cas. [N. Y.] 75; Green v. Biddle, 8 Wheat. [U. S.] 1; Bronson v. Kinzie, 1 How. [U. S.] 311; Morse v. Goold, 1 Kern. [N. Y.] 281; 1 Dillon, Municipal Corporations [3d ed.] sec. 9; Cooley, Constitutional Limitations [5th ed.] 225; People v. Mayor, 51 Ill. 17.

M. B. Reese, for the mayor and council of the city of Omaha.

Points argued:

Legislative enactments attempting to confer upon the governor power to appoint members of the board of fire and police commissioners of the city of Omaha are unconstitutional and void.

It is not within the power of the legislature to take from the people of municipalities the right of local self-government.

Additional references: Black, Constitutional Law 8; Cooley, Constitutional Limitations [4th ed.] 44, 212, 228; People v. Lothrop, 24 Mich. 234; Regents of the University of Maryland v. Williams, 9 Gill & J. [Md.] 365; Attorney General v. Common Council of Detroit, 29 Mich. 108; Cooley, Principles of Constitutional Law 358; 1 Dillon, Municipal Corporations sec. 183.

Cases reviewed: State v. Lancaster County, 4 Neb. 537; State v. Dodge County, 10 Neb. 20; Hanscom v. City of Omaha, 11 Neb. 37; State v. Ream, 16 Neb. 681; Shaw v. State, 17 Neb. 334; Magneau v. City of Fremont, 30 Neb. 843; Commonwealth v. McCloskey, 2 Rawl. [Pa.] 368; State v. Irey, 42 Neb. 186; Gillespie v. City of Lincoln, 35 Neb. 34; State v. Seavey, 22 Neb. 454; People v. Mahaney, 13 Mich. 481; State v. Covington, 29 O. St. 102; State v. Hunter, 38 Kan. 578; Commonwealth v. Plaisted, 148 Mass. 375; State v. Kolsem, 29 N.E. 595 [Ind.]; Police Commissioners v. City of Louisville, 3 Bush [Ky.] 597; In Re Senate Bill, 21 P. 481 [Colo.].

E. R. Duffie, George A. Day, and I. J. Dunn, for J. H. Peabody and other appointees of the governor:

The constitution is not a grant, but a limitation upon the legislative power. The legislature may legislate upon any subject not inhibited by the constitution. (Magneau v. City of Fremont, 30 Neb. 843; State v. Lancaster County, 4 Neb. 537; State v. Dodge County, 8 Neb. 124; Hanscom v. City of Omaha, 11 Neb. 44; State v. Ream, 16 Neb. 685; Shaw v. State, 17 Neb. 334.)

A statute must stand or fall, as an expression of the will of the lawmaking power of the state, to whom the right to enact laws has been delegated by the people, and not upon the will or voice of any other body or power. (Santo v. State, 2 Ia. 165; Geebrick v. State, 5 Ia. 491; State v. Beneke, 9 Ia. 203; Commonwealth v. McCloskey, 2 Rawl. [Pa.] 368; Philadelphia v. Fox, 64 Pa. St. 169; State v. Denny, 118 Ind. 382; State v. Irey, 42 Neb. 189.)

Until some express provision of the constitution is claimed to be violated by legislative action there is nothing to call for judicial interpretation. (Cooley, Constitutional Limitations 153; Walker v. City of Cincinnati, 21 O. St. 14; State v. McCann, 21 O. St. 198; Adams v. Howe, 14 Mass. 340.)

Other references in an argument in favor of the constitutionality of the statute assailed: Mayor of Baltimore v State, 15 Md. 376; People v. Draper, 25 Barb. [N. Y.] 366; 1 Dillon, Municipal Corporations [4th ed.] sec. 68 and note pp. 112, 113; People v. Hurlbut, 24 Mich. 44; Burch v. Hardwicke, 30 Gratt. [Va.] 24; Gillespie v. City of Lincoln, 35 Neb. 34; Bryant v. City of St. Paul, 33 Minn. 289; 1 Beach, Public Corporations sec. 744; State v. Denny, 118 Ind. 382, 449; Bloomfield v. Charter Oak Bank, 121 U.S. 121; Town of Granby v. Thurston, 23 Conn. 416; Webster v. Town of Harwinton, 32 Conn. 131; Atwater v. Town of Woodbridge, 6 Conn. 223; McLoud v. Selby, 10 Conn. 390; Beardsley v. Smith, 16 Conn. 368; Chase v. Merrimack Bank, 19 Pick. [Mass.] 564; Gaskill v. Dudley, 6 Met. [Mass.] 546; Adams v. Wiscasset Bank, 1 Greenl. [Me.] 361; Fernald v. Lowis, 6 Greenl. [Me.] 264; Hopkins v. Town of Elmore, 49 Vt. 176; State v. Seavey, 22 Neb. 454; People v. Mahaney, 13 Mich. 841; Police Commissioners v. City of Louisville, 3 Bush [Ky.] 597; People v. Draper, 15 N.Y. 532; Daley v. City of St. Paul, 7 Minn. 390; Mayor of Baltimore v. State, 15 Md. 376; Diamond v. Cain, 21 La. Ann. 309; State v. Covington, 29 O. St. 102;...