State ex rel. Churchill v. Bemis

• Decision Date: 17 September 1895
• Citation: 45 Neb. 724,64 N.W. 348
• Parties: STATE EX REL. CHURCHILL v. BEMIS ET AL.
• Court: Nebraska Supreme Court

45 Neb. 724

64 N.W. 348

STATE EX REL. CHURCHILL

v.BEMIS ET AL.

Supreme Court of Nebraska.

Sept. 17, 1895.

Syllabus by the Court.

1. Section 11, art. 3, of the constitution provides that “no law shall be amended unless the new act contains the section or sections so amended and the section or sections so amended shall be repealed.” Held, that the term “repeal” is therein employed in the sense in which it was understood when the constitution was adopted in 1875.

2. It had before that time been definitely settled as a rule of construction that the simultaneous repeal and re-enactment of a statute in terms or in substance is a mere reaffirmance of the original act, and not a repeal in the strict or constitutional sense of the term.

3. The great object to be attained by that provision of the constitution is certainty in legislation, hence all that is required is that the amendatory act shall be definite and certain as to the law amended, and germane to the original act. State v. Babcock, 26 N. W. 348, 23 Neb. 128.

4. In 1887 an act was passed entitled “An act incorporating cities of the metropolitan class and defining, regulating and prescribing their powers and government.” In 1889, section 145 of said act was amended by the addition thereto of a provision not affecting its general scope and purpose, and the original section was repealed; the title of the amendatory act being, “An act to amend section 145 of an act,” etc., “and to repeal said section as heretofore existing.” In 1891 said section was further amended by the addition of a provision not affecting its general object, and the section as amended was repealed, both acts preserving the number and language of the original section, except as affected by such amendment. In 1895 an act was passed entitled “An act to amend section 145 of ‘An act incorporating cities of the metropolitan class and defining, regulating and prescribing their powers and government,’ approved March 30, 1887, and as subsequently amended.” Held, that the act last mentioned is not inimical to the constitution on the ground that the original section was repealed by the act of 1889.

5. The provision of section 11, art. 3, of the constitution, viz. “No bill shall contain more than one subject and the same shall be clearly expressed in the title,” was intended to prevent surreptitious legislation, and not to prohibit comprehensive titles. The test is not whether the title chosen by the legislature is the most appropriate, but whether it fairly indicates the scope and purpose of the act.

6. An act which embraces the entire subject-matter of a prior act, and also additional provisions, will be construed as a repeal of the latter by implication.

7. The provision of the charter of the city of Omaha for a board of fire and police commissioners composed of three members, “at least one from each of the two political parties casting the largest number of votes at the last preceding general election,” does not conflict with the constitution of this state, or the constitution of the United States, in prescribing party affiliation as a qualification for office. If such provision be not mandatory in the sense that it is binding upon the appointing power (a question not decided), it is at least advisory, and will be accorded consideration consistent with the comity existing between different departments of government.

8. The act of 1895, amendatory of the act of 1887 (chapter 10, Laws 1895), was passed over the veto of the governor April 4th, but did not, under the provision of section 24, art. 3, of the constitution, take effect until three calendar months after the adjournment of the legislature for that session. Held, that the provision therein for the appointment of fire and police commissioners for cities of the metropolitan class within 30 days from its passage refers to the time when said act took effect as a law.

9. In the absence of a special provision to the contrary, the presence of all the members thereof is not indispensable to the transaction of business by a public body or board. Where members having reasonable notice neglect to attend the meetings of a board charged with duties to the public, the action of those present, if a majority of all, or a quorum authorizd by statute or by law, is the action of the board, and equally binding as if all had attended and expressly assented thereto.

Original proceedings in quo warranto on the relation of A. S. Churchill against George P. Bemis and others. Judgment for relator.

A. S. Churchill, Atty. Gen., pro se.

E. W. Simeral and Greene & Breckenridge, for respondents Bemis and others.

Hall, McCulloch & Clarkson, for respondents Broatch and others.

POST, J.

This is an original proceeding in the nature of a quo warranto on the relation of the attorney general, under the provisions of section 714 of the Civil Code, to determine the rights of the respondents, who claim to be members of the board of fire and police commissioners for the city of Omaha. By section 145 of the act of 1887 entitled “An act incorporating metropolitan cities and defining, regulating and prescribing their powers and government,” hereafter referred to as the “charter of the city of Omaha,” provision is made for a board of fire and police commissioners, consisting of five members, to wit, the mayor and four electors of said city, to be appointed by the governor. In 1889 and 1891 said section was amended by the addition thereto of provisions to which reference will be hereafter made, but which do not call for notice in this connection. In 1895 an act was passed entitled “An act to amend section 145 of an act entitled ‘An act incorporating metropolitan cities and defining, regulating and prescribing their powers and government,’ approved March 30, 1887, and as subsequently amended and to repeal said section,” and which it is conceded took effect August 1st following, unless void for reasons hereafter considered. By the last-mentioned act provision is made for a board of fire and police commissioners, consisting of three members, to be appointed by the governor, attorney general, and commissioner of public lands and buildings. It is disclosed by the pleadings upon which the cause is submitted that on the day last named said board was composed of the following members, to wit, Howard B. Smith, Virgil O. Strickler, D. Clem Deaver, and Charles H. Brown, all of whom had been in due form appointed by the governor, and George P. Bemis, mayor of said city, and will for convenience be referred to as the “old board.” On the 2d day of August the respondents William J. Broatch, Paul Vandervoort, and Albert C. Foster were named as fire and police commissioners under the provisions of the act of 1895, the record of their appointment being as follows: “August 2, 1895, 10 o'clock a. m. Appointing board for the appointment of fire and police commission for cities of metropolitan class met pursuant to written notice heretofore given of said meeting. Present: H. C. Russell, Com. P. L. & B., and A. S. Churchill, Attorney General. Whereupon the following proceedings were had: Hon. H. C. Russell was chosen chairman pro tem., and A. S. Churchill, secretary. The meeting being called to appoint fire and police commissioners of the city of Omaha. Whereupon W. J. Broatch was appointed one of the said fire and police commissioners of said city for the term ending December 31, 1895; Paul Vandervoort for the term ending December 31, 1896; and A. C. Foster for the term ending December 31, 1897; and commissions instructed to be issued accordingly. There being no other business, after waiting until eleven o'clock a. m. of said date, the board adjourned. Record read and approved. H. C. Russell, Chairman pro tem. A. S. Churchill, Secretary.” Said respondents subsequently qualified in the manner prescribed by law, and will be referred to as the “new board.” Messrs. Strickler and Smith, upon the appointment and qualification of the new board, recognized the title of the latter, and refused to join in resisting their claims to the officers in controversy.

It should be remarked, as preliminary to an examination of the cause on its merits, that this court is not the keeper of the legislative conscience, and that the motives of members of the respective houses, or the wisdom and propriety of the act involved, present no question of judicial cognizance. That act is, we may assume, as are most, if not all, measures of like character, wholly indefensible; still the caustic arraignment of counsel should have been addressed to another department of the government, since it is not within our province to criticise or defend it as a matter of legislative policy. It should be remembered, too, that all presumptions are in favor of legislative acts, and that no act will be declared invalid unless plainly and irreconcilably in conflict with the constitution. With these general observations we will proceed to a consideration of the questions discussed, and which will, so far as practicable, be examined in the order presented by counsel for the old board.

It is, in the first place, claimed that section 145 of the act of 1887 was repealed by the act of 1889, amendatory thereof, and that the attempted amendment of 1895 is accordingly without force or effect. That argumentrenders necessary an examination of the several acts mentioned so far as they relate to the subject in hand. Section 145, as originally adopted, not only provides for a board of fire and police commissioners, not more than two of whom shall belong to one political party, but also in explicit terms defines their powers and duties. The act of 1889, entitled “An act to amend sections * * * 145 * * * and to repeal said sections as heretofore existing,” is a literal re-enactment of the section amended, except that it provides for the government and control of the police of the city in accordance with rules adopted by the board of fire and police, instead...