State, ex rel. Baughn v. Ure

• Decision Date: 12 March 1912
• Docket Number: 17,501
• Citation: 135 N.W. 224,91 Neb. 31
• Parties: STATE, EX REL. WILMOT L. BAUGHN, JR., RELATOR, v. WILLIAM G. URE, CITY TREASURER, RESPONDENT
• Court: Nebraska Supreme Court

135 N.W. 224

91 Neb. 31

STATE, EX REL. WILMOT L. BAUGHN, JR., RELATOR, v. WILLIAM G. URE, CITY TREASURER, RESPONDENT

No. 17,501

Supreme Court of Nebraska

March 12, 1912

ORIGINAL application for a writ of mandamus to compel respondent to accept filing fee, to enable relator to become a candidate for city clerk of the city of Omaha. Writ denied.

Writ of mandamus REFUSED.

Isidore Zeigler, for relator.

John P Breen and John A. Rine, contra.

E. O Kretsinger, A. M. Morrissey and Meier & Meier, amici curiae.

LETTON J. REESE, C. J., not sitting.

OPINION

LETTON, J.

This is a proceeding in mandamus to compel William G. Ure, as city treasurer of the city of Omaha, to receive from the relator the filing fee of $ 5 provided by law to enable him to file his application to have his name placed upon the ballot at the primary election in 1912 as a candidate for the office of city clerk provided for in chapter 12a, Comp. St. 1909, governing cities of the metropolitan class.

Relator alleges his tender and the refusal by respondent of the lawful fee; the reason given being that the office of city clerk is no longer an elective office in said city, and that he as such treasurer had no authority or power to receive said fee because of the provisions of chapter 24, laws 1911, commonly known as the "Commission Plan of City Government," which act it is alleged was regularly and legally adopted by the electors of that city at a special election and so declared by the duly authorized officers of said city.

Relator in substance alleges that the statute last referred to is in violation of the constitution and void for the following reasons:

(1) Because, although the act purports to be an act complete in itself, it modifies and repeals various prior laws and sections thereof, without naming the same, or in express terms repealing or re-enacting such prior laws and sections. Certain sections in chapter 12a, Comp. St. 1909, being the general law governing cities of the metropolitan class, and also several sections of the general primary election laws of the state are alleged to be amended and repealed by the act, without naming them, which is said to be in violation of section 11, art. III of the constitution.

(2) Because it becomes operative and goes into effect only upon, and not until, the electors of any city desiring to come under its operation and be governed by it vote upon its adoption, and that the legislature thereby has unlawfully attempted to delegate its powers of legislation to that portion of the people of the state adopting said act.

(3) Because whenever the provisions of the law are adopted by any city, then the act becomes special legislation as to the city adopting the same, in that such city is not thereafter governed by the same law as cities of the same class not adopting the act, which result is prohibited by section 15, art. III of the constitution.

The cause is now before us for hearing upon a demurrer to the petition, which, of course, admits all the foregoing facts well pleaded. If the act is void, then it was the duty of respondent to receive the filing fee tendered, and the relator is entitled to the writ; but, if valid, the writ must be refused.

The title of the act under consideration is "An act for the government of all cities having, according to the last preceding state or national census, five thousand or more population, and to enable such cities to adopt the provisions of this act called the 'Commission Plan of City Government.'" Laws 1911, ch. 24.

The relator concedes that, so far as its title is concerned, this may be deemed an act complete in itself, but it is said that the officers whose election is provided for in the act have to resort to other and prior laws governing the cities in the state adopting the plan to ascertain the powers and duties of the government of such cities, and that for that reason the act is not complete in itself but amendatory; that it does not clothe the officers with power sufficient to govern a city by its own terms, and that consequently, it cannot be said to be an act complete in itself, although the title so indicates. In support of this contention relator cites Smails v. White, 4 Neb. 353; Sovereign v. State, 7 Neb. 409; In re House Roll 284, 31 Neb. 505, 48 N.W. 275; Stricklett v. State, 31 Neb. 674, 48 N.W. 820; Haverly v. State, 63 Neb. 83, 88 N.W. 171; German-American Fire Ins. Co. v. City of Minden, 51 Neb. 870, 71 N.W. 995; Van Horn v. State, 46 Neb. 62, 64 N.W. 365; City of South Omaha v. Taxpayers' League, 42 Neb. 671, 60 N.W. 957; Trumble v. Trumble, 37 Neb. 340, 55 N.W. 869; Board of Education v. Moses, 51 Neb. 288, 70 N.W. 946.

These cases to some extent give countenance to this argument. The law is firmly settled by the later decisions in this state, however, that, where an act is passed as original and independent legislation and is complete in itself so far as applies to the subject matter properly embraced within its title, the constitutional provision respecting the manner of amendment and repeal of former statutes has no application. It is pointed out in 1 Sutherland (Lewis) Statutory Construction (2d ed.) sec. 239, that the later cases in this state are in harmony with the current of authority in other jurisdictions. We deem it unnecessary to do more than refer to the following decisions: Allan v. Kennard, 81 Neb. 289, 116 N.W. 63; Zimmerman v. Trude, 80 Neb. 503, 114 N.W. 641; State v. Moore, 50 Neb. 526, 70 N.W. 56; Affholder v. State, 51 Neb. 91; Van Horn v. State, 46 Neb. 62, 64 N.W. 365; De France v. Harmer, 66 Neb. 14, 92 N.W. 159; Wenham v. State, 65 Neb. 394, 91 N.W. 421; Nebraska Loan & Building Ass'n v. Perkins, 61 Neb. 254, 85 N.W. 67; State v. Moore, 48 Neb. 870, 67 N.W. 876.

In Smails v. White, supra, the opinion seems to indicate that because the act denounced changed the time in which to file an undertaking on appeal and left the manner of taking the appeal as it was, so that reference was necessary to the former act to ascertain the manner of appealing, this made the law obnoxious to the constitution. This point is considered in Pacific Express Co. v. Cornell, 59 Neb. 364, 377, 81 N.W. 377, where it is said of the new law: "It but placed the companies, to which it was made applicable, under the supervision of certain officers, cast further duties upon the latter, and for the extent of their jurisdiction or power, and the manner of procedure in its exercise, refers to another law of prior existence. This was not fatally objectionable legislation." Also, in Nebraska Loan & Building Ass'n v. Perkins, 61 Neb. 254, 85 N.W. 67, where discussing it, this court said: "Nor is the fact that it refers to another law, making it requisite to follow the requirements of the latter in forming these corporations, a reason why the rule should not prevail. This does not constitute the act so uncertain as to render it difficult to ascertain just what the law is intended to be. The object of the constitution in requiring the portion of the law amended to be included in the new legislation is to preclude the amendment of laws in so blind a manner as to render it difficult to ascertain just what law is intended to be amended." The mere fact that the act requires reference to the existing laws governing cities of the class embraced within this act for matters of detail and administration does not operate to change the character of the act as a complete act. State v. Junkin, 87 Neb. 801, 128 N.W. 630.

In People v. Knopf, 183 Ill. 410, 415, 56 N.E. 155, where the validity of a new revenue law was assailed on the ground that the act was amendatory and violated the provisions of the constitution with reference to amendment of statutes, the court say: "Under all the circumstances the act should be sustained, if possible, as independent legislation, and not as amendatory in character. The mere fact that portions of the old law are left in force, so that the statutes present the aspect of what has been called patch-work legislation, as they undeniably do, should not render the act void, if it can be said that the act is reasonably complete and sufficient in itself upon distinct branches of the general subject." See, also, People v. Lorillard, 135 N.Y. 285, 31 N.E. 1011; Fornia v. Wayne Circuit Judge, 140 Mich. 631, 104 N.W. 147; People v. Mahaney, 13 Mich. 481.

The case last referred to has been repeatedly cited and approved in this court, and we are satisfied with the principles of law therein announced. We think the act under consideration does not violate the constitutional provision respecting the amendment of statutes.

Relator's next contention is that the act in question violates section 1, art. II of the constitution, providing for the distribution of powers for the government of the state into legislative, executive, and judicial. He argues that, since the provisions of the law do not become effective with reference to cities of over 5,000 inhabitants, except on an affirmative vote of the electors thereof, the act is an attempt on the part of the legislature to delegate legislative powers to a municipality; and that, since the legislature is not authorized to submit to a popular vote of the state the question whether or not an act proposed by it shall become a law, it cannot submit such a question to the electors of a municipality; that by the act the choice of selecting two different forms of government is left to the electors of each city, which choice the legislature has not the power or the right to delegate to the electors of a municipality.

The provision of the constitution referred to by its express terms is concerned only with the government of the state, and does not attempt to limit the legislature as to its power to...