State ex rel. Churchill v. Bemis
| Decision Date | 17 September 1895 |
| Docket Number | 7947 |
| Citation | 64 N.W. 348,45 Neb. 724 |
| Parties | STATE OF NEBRASKA, EX REL. ARTHUR S. CHURCHILL, ATTORNEY GENERAL, v. GEORGE P. BEMIS, CHARLES H. BROWN, D. CLEM DEAVER, WILLIAM J. BROATCH, PAUL VANDERVOORT, AND ALBERT C. FOSTER |
| Court | Nebraska Supreme Court |
ORIGINAL action in the nature of quo warranto, on the relation of the attorney general, to determine the rights of rival claimants to the offices of fire and police commissioners of the city of Omaha. Judgment in favor of William J. Broatch, Paul Vandervoort, and Albert C. Foster.
Judgment in favor of William J. Broatch, Paul Vandervoort and Albert C. Foster.
A. S Churchill, Attorney General, for the state.
E. W. Simeral and Greene & Breckenridge, for respondents George P. Bemis, Charles H. Brown, and D. Clem Deaver:
The act of 1895, chapter 10, Session Laws, is void because the section of the act it purports to amend and repeal did not exist, and it therefore has nothing to rest on. (
The act is void as being in violation of the constitutional provision that no bill shall contain more than one subject, and the same shall be clearly expressed in its title. (White v. City of Lincoln, 5 Neb. 516; Ives v. Norris, 13 Neb. 252; Wall v. Garrison, 11 Col. 515.)
The act is broader than its title and is therefore void. (Trumble v. Trumble, 37 Neb. 340; People v. Denahy, 20 Mich. 349; Weigel v. City of Hastings, 29 Neb. 379; Wolf v. Taylor, 98 Ala. 254; State v. Nomland, 3 N. Dak., 427; Elliott v. State, 91 Ga. 694; Clark v. Board of Commissioners of Wallace County, 39 P. [Kan.], 225; Commonwealth v. Samuels, 14 Pa. C. C. Rep., 423; Perkins v. City of Philadelphia, 156 Pa. 539; People v. Fleming, 7 Col., 230; City of Grand Rapids v. Burlingame, 93 Mich. 469; Gatling v. Lane, 17 Neb. 84; In re White, 33 Neb. 819.)
The act is unconstitutional for the reason that it is in conflict with other sections of the city charter. (Trumble v. Trumble, 37 Neb. 347; City of South Omaha v. Taxpayers' League, 42 Neb. 671; Ex parte Hewlett, 40 P. [Nev.], 96.)
Two members of the old board were appointed for four years from May 7, 1895. They are not legislated out by any express provision of the act. They have never been tried and removed. At the time of their appointment their term of office was fixed by law. They should be permitted to serve out their term. (State v. Board of Public Lands and Buildings, 7 Neb. 42; State v. McColl, 9 Neb. 203; State v. Seay, 64 Mo. 89.)
The provision of the act making party affiliation a test of eligibility to office is in conflict with section 1 of the fourteenth amendment of the constitution of the United States providing, "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." The provision violates section 3 of the state bill of rights. It also violates section 15 of article 3 of the state constitution providing that the legislature shall not pass local or special laws "granting to any corporation, association, or individual any special or exclusive privilege, immunity, or franchise whatever." (Attorney General v. City of Detroit, 58 Mich. 213; City of Evansville v. State, 118 Ind. 426; Rogers v. City of Buffalo, 123 N.Y. 173.)
The law is incapable of execution, and therefore void. (Sutherland, Statutory Construction, secs. 237, 238.)
The new board was not legally appointed. Where a power is conferred upon three or more persons in a matter of public concern, requiring the exercise of discretion and judgment, and contains no directions respecting the number of those who may exercise the power, such exercise will not be valid unless all act, or unless all meet for consultation. After a legal meeting has taken place a majority may govern. .)
In absence of an emergency clause the act in providing that the commissioners shall be appointed within thirty days after its passage violates the following provision of the constitution: "No act shall take effect until three calendar months after the adjournment of the session at which it was passed, unless in case of emergency. " (Harding v. People, 10 Col. 387.)
Courts should not hesitate to declare legislative acts invalid when they are found to be in substantial conflict with the fundamental law of the state. (State v. Bartley, 41 Neb. 277.)
Hall, McCulloch & Clarkson, for respondents William J. Broatch, Paul Vandervoort, and Albert C. Foster:
The appointment by a majority of the board is valid. (
In support of an argument in favor of the constitutionality of the act the following cases were cited: (State v. Seavey, 22 Neb. 454; State v. Smith, 35 Neb. 13; Perry v. Gross, 25 Neb. 826; In re White, 33 Neb. 812; Miller v. Hurford, 13 Neb. 13; Gatling v. Lane, 17 Neb. 81; State v. Ream, 16 Neb. 681; State v. Mayor of Kearney, 28 Neb. 110; State v. McColl, 9 Neb. 203; Taylor v. Courtnay, 15 Neb. 190; Lawson v. Gibson, 18 Neb. 137; State v. Babcock, 21 Neb. 599; Brome v. Cuming County, 31 Neb. 362; State v. Maccuaig, 8 Neb. 215; State v. Howe, 28 Neb. 618.)
The provision for the appointment of officers of different political affiliations does not invalidate the act. (State v. Seavey, 22 Neb. 454; State v. Smith, 35 Neb. 13; People v. Hurlbut, 24 Mich. 93.)
The expression in the law referring to the time the appointment should be made was intended to mean thirty days after the act took effect. (Hardin v. People, 10 Col. 387.)
OPINIONThe facts are stated in the opinion.
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 duties, 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 duties, powers and government,' approved March 30, 1887, and as subsequently amended, and to repeal said section," and which it is conceded took effect not later than August 1 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 Geo. 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:
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