State, ex rel. City of Omaha v. Board of County Commissioners of Douglas County

• Decision Date: 19 July 1922
• Docket Number: 22521
• Citation: 189 N.W. 639,109 Neb. 35
• Parties: STATE, EX REL. CITY OF OMAHA, APPELLEE, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

189 N.W. 639

109 Neb. 35

STATE, EX REL. CITY OF OMAHA, APPELLEE, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY ET AL., APPELLANTS

No. 22521

Supreme Court of Nebraska

July 19, 1922

APPEAL from the district court for Douglas county: ALEXANDER C TROUP, JUDGE. Affirmed.

AFFIRMED.

A. V Shotwell and W. W. Slabaugh, for appellants.

Dana B VanDusen and John F. Moriarty, contra.

Heard before MORRISSEY, C. J., DEAN, ALDRICH, DAY and FLANSBURG, JJ.

OPINION

FLANSBURG, J.

This is an action in mandamus, brought on the relation of the city of Omaha, to command the county commissioners of Douglas county to furnish office rooms for the use of the municipal courts of the city of Omaha in the county courthouse. The action is based upon certain acts of the legislature of 1921, which provide that the county commissioners of any county shall furnish rooms in the courthouse for the municipal courts of any city which is the county seat of that particular county. The district court allowed the writ of mandamus to issue, and from this order the respondents, county commissioners, appeal.

There are two acts of the legislature, passed at the session of 1921, pertaining to the duty of the county commissioners as to the furnishing of rooms in the courthouse for courts in the county. A controversy has arisen as to which law governs, since one provides for the payment of rental by the city and the other does not.

The history of one act is as follows: In 1879 the legislature, defining the duties of the county commissioners with respect to the housing of courts, declared that the commissioners should erect or otherwise provide county buildings and should furnish suitable rooms and offices for the accommodation of the "several courts of record." Laws 1879, p. 361, sec. 25. The courts of record referred to by this act were the county courts and district courts, there being then no other courts of record in the county. This provision, respecting the housing of courts, was carried throughout the statutes until in 1919, when, by chapter 66, Laws 1919, approved April 8, 1919, the same provision of that statute was reenacted.

Subsequent to the approval of that act, but at the same session of the legislature, the original law was again, by an entirely different and independent bill, amended, and without any reference whatsoever to chapter 66, just mentioned. The later statute was approved April 15, and appears as chapter 67, Laws 1919. It provided that the county commissioners should furnish suitable rooms for the accommodation of the several courts of record, and added the following provision: "Including suitable rooms and clerks' offices for the accommodation of any municipal court of record whenever the city having such court is the county seat of the county." Under our decisions, chapter 67, being the later enactment amending an identical section of the previous statutes, would be held to have repealed, by implication, chapter 66. Futscher v. City of Rulo, 107 Neb. 521, 186 N.W. 536; Morgan v. City of Falls City, 103 Neb. 795, 174 N.W. 421.

In 1921 the legislature again passed a law having to do with the identical section of the statute treated by these two laws of 1919. This statute (Laws 1921, ch. 144), however, purported to amend chapter 66, Laws 1919, instead of chapter 67, Laws 1919, ignoring that amendatory act, and again reenacted the provision which was originally found in the statute of 1879, providing that the county commissioners should furnish suitable rooms for the accommodation of the "several courts of record." It omitted entirely the provision of chapter 67, Laws 1919, expressly providing for the furnishing of rooms for municipal courts.

Though the 1921 act purports to amend chapter 66, Laws 1919, and ignores the amendatory act, chapter 67, Laws 1919, such mistaken reference to the former statute, without express mention of the subsequent amendatory act, does not invalidate the act, for there is sufficient identification of the previous existing law sought to be amended to make certain the legislative intention. State v. Babcock, 23 Neb. 128, 36 N.W. 348; Fenton v. Yule, 27 Neb. 758, 43 N.W. 1140; Richards v. State, 65 Neb. 808; notes, 5, 91 N.W. 878 A. L. R. 996, 1009.

The history of this 1921 enactment, then, shows that the original law of 1879 provided for the housing of the "courts of record" of the county; that in 1919 the legislature added a provision for the housing of "municipal courts," and, by a still later enactment, 1921, struck out the provision for the housing of the municipal courts. The legislature of 1879, in referring to "courts of record," had in mind those courts of record which were then known to the law, and those did not include municipal courts. The legislature evidently deemed it necessary in 1919, in order that municipal courts be brought within the law, that they be specifically mentioned. The legislature, when it again reenacted the law in 1921, striking out the specific mention, would seem to have intended to again eliminate from the law any provision with regard to housing the municipal courts.

This interpretation is further strengthened and confirmed when we consider the other enactment of the 1921 legislature, which it is claimed governs in this case. It is independent of the act which we have been discussing, and appears as chapter 120, Laws 1921. This act is more specific, in its mention that municipal courts shall be housed in the court house, than chapter 144, Laws 1921, and was approved and became a law at the same session and seven days later. The provisions of chapter 120 are as follows: Where a city having a municipal court is the county seat of the county, "it shall be the duty of the county board to provide suitable rooms and clerk's office for the accommodation of such court in the county courthouse, and in such case the city shall pay to the county a reasonable yearly rental for such rooms." This, being the clearer and more pronounced enunciation, as well as being the later expression of the legislative will, would govern as against the general provision found in chapter 144, which simply provided that county commissioners shall furnish rooms for the accommodation of the "several courts of record," even were we to believe that the legislature intended to include municipal courts within the term "courts of record." 36 Cyc. 1130; Omaha Real Estate & Trust Co. v. Kragscow, 47 Neb. 592, 66 N.W. 658.

But we believe the two acts can be harmonized by the interpretation which we have placed upon chapter 144, that the legislature, in speaking of courts of record, intended to refer to those courts of record in the county, other than municipal courts, the municipal courts having been only recently created by the law, and that chapter 120 was intended particularly to cover the matter of housing municipal courts. It is therefore our opinion that chapter 120, Laws 1921, is the statute applicable here.

In further defense the respondents contend that the statute (Laws 1921, ch. 120) is in violation of section 14, art. III of the Constitution. It is claimed that the provision, providing for the housing of municipal courts in the county courthouse, is not germane to the original act, of which the 1921 statute is an amendment, and that such provision is not within the scope of the title of that act. The title of the original act (Laws 1915, ch. 182), of which act the 1921 statute is an amendment, is as follows: "An act to create a municipal court in cities of certain classes, to fix and define the organization, powers, and jurisdiction of the same, and to repeal all acts and parts of acts in conflict herewith." The constitutional limitation, that no bill shall contain more than one subject, which shall be clearly expressed in the title, does not require an enumeration in the title of all the different matters which may properly be covered in the body of the act, all having to do with one general subject. The title of the act is not intended to serve as an index. It is manifest that, if a municipal court is to be organized and to operate, those things which are incidental to the carrying into effect of those ultimate objects may properly be provided in the law. The index indicates the general object sought to be attained, and the housing of the court is a provision plainly incidental to that general object. State v. Cox, 105 Neb. 75, 178 N.W. 913, and cases therein cited.

It is further contended that the statute takes the property of Douglas county and appropriates it to the use of the city of Omaha without due process of law, and that the statute denies the citizens of Douglas county the equal protection of the law, and for these reasons is violative both of the state and federal Constitutions.

It must be remembered that a county does not possess the double governmental and private character that cities do. It is governmental only, and in that capacity acts purely as an agent of the state. The funds raised by taxation in the county are subject to the direction and control of the legislature for public use in that county, and the property of the county, acquired by funds raised through taxation, is...