State ex rel. Comstock v. Stewart
| Decision Date | 26 June 1897 |
| Docket Number | 9180 |
| Citation | 71 N.W. 998,52 Neb. 243 |
| Parties | STATE OF NEBRASKA, EX REL WILMER B. COMSTOCK ET AL., v. ALEXANDER STEWART ET AL |
| Court | Nebraska Supreme Court |
ORIGINAL action in the nature of quo warranto to oust respondents from the offices of councilmen of the city of Lincoln, and to instate relators therein. Writ denied.
WRIT DENIED.
M. B Reese, for relators.
Webster Rose & Fisherdick and Clark & Allen, contra.
This is an original proceeding, in the nature of quo warranto, challenging the authority of the respondents to exercise the offices of councilmen of the city of Lincoln, and to oust them from said offices and to instate the relators therein. The relators, twelve in number, and the respondents Geisler and Guthrie, were councilmen of the city of Lincoln on and prior to April 1, 1897, seven of them,--Draper, Ewan, Geisler, Guthrie, Hutton, Young, and Jason D. Parker,--having been elected for a term of two years in April, 1895, and the remaining seven,--Comstock, Finley, Lawler, Spears, Webster, Woodward, and Barr Parker,--were elected for the period of two years in April, 1896. Respondents were regularly nominated prior to March 16, 1897, as candidates for election to the offices of councilmen of said city for their respective wards. After the nominations as aforesaid were made, and prior to the annual city election held on April 6, 1897, an act of the legislature was passed, known as Senate File 176 (Session Laws, 1897, ch. 14, p. 139), with an emergency clause attached, purporting to amend certain sections of the city charter of said city, whereby, among other things, the councilmen were reduced in numbers from two to one from each of the wards. At the city election last aforesaid the respondents were elected as members of the city council, receiving a majority of all the votes cast in the city, as well as in their respective wards, in which they resided, save the respondent Barth, who failed to carry his own ward,--the second,--although he received a majority of the votes in the entire city. Respondents were duly found and declared elected, and each severally qualified according to law. Prior to the passage of Senate File 176 said city had been duly divided into seven wards, with boundaries defined by ordinance passed and published, which has not been repealed, nor in anywise annulled. The foregoing matters are either alleged in the answer of the respondents or admitted by them therein to be true. To the answer a demurrer has been interposed alleging that facts sufficient are not alleged to constitute a defense, and that the act under which respondents claim to exercise the functions of said offices is unconstitutional and void. The submission is upon the demurrer.
Although the controversy is over the title to the offices named, the important question presented for consideration is the constitutionality and validity of the said Senate File No. 176, approved March 20, 1897 (Session Laws, ch. 14, p. 139), and entitled "A bill for an act to amend sections three (3), eight (8), nine (9), eleven (11), twelve (12), thirteen (13), fourteen (14), * * * ninety-one (91), and one hundred and fifteen (115), chapter 13a of article 1 of the Compiled Statutes of 1895, for the government of cities of the first class having more than twenty-five thousand inhabitants, and to repeal section 10 and said original sections and all amendments thereto, and all acts and parts of acts inconsistent with this act." Relators argue that this act was passed by the legislature in violation of section 11, article 3, of the constitution, and void, and "the whole act is so contaminated and filled with the virus of unconstitutionality that it must all fall." We shall, as briefly as may be, notice some of the most important objections brought forth in the briefs of counsel for relators against the validity of the law.
Both ends of the act are assailed, namely, the title and the repealing clause. The title to the act, it is claimed in argument, is vague and indefinite, because it does not with sufficient precision designate the chapter or the part of the chapter which it was the purpose of the legislature to alter or change. It will be observed the title specifies for the purpose of amendment thirty-three enumerated sections in "chapter 13a of article 1 of the Compiled Statutes of 1895," etc. The language just quoted is not technically accurate, and certainly is not the most apt or appropriate index which could have been selected by the law-makers for the purpose of indicating the subject-matter contained in the body of the bill, inasmuch as there is no "chapter 13a of article 1 of the Compiled Statutes of 1895." The compilation of the laws in that year contains numerous articles, but none of them embraces an entire chapter, while several chapters of the compilation mentioned,--among others, chapter 13a, --are subdivided into, or composed of, two or more articles. But this objection urged by counsel is technical merely, and without substantial merit. It is patent that the preposition "of" following "13a" and preceding the word "article" in the above quotation should be entirely disregarded or read "thereof,"--in either event, it would be plain to every one that the sections proposed to be amended would be found in article 1, chapter 13a, of the Compiled Statutes of 1895. That it should be so read, and this was the legislative intent, is manifest from the language of the entire title to the bill. It informs us that the chapter and article intended are devoted to "the government of cities of the first class having more than twenty-five thousand inhabitants." Turning to the Compiled Statutes for the year in question, it will be found that chapter 13a is designated "Cities of the First Class," and that article 1 thereof contains the charter, or law, governing cities of that class between 25,000 and 100,000 inhabitants. The title to the act before us, when considered as a whole, distinctly points out the article and chapter where the amendatory sections were intended to apply. It is suggested the title to this bill contains no reference to the title of the original act. To have done so was not essential to the validity of the law. This court has held, speaking through REESE, J., that "in amending an act it may be designated by its title or chapter in the Compiled Statutes." (State v. Berka, 20 Neb. 375; Dogge v. State, 17 Neb. 140, 22 N.W. 348; Ballou v. Black, 17 Neb. 389, 23 N.W. 3.)
The title to this Senate File 176, and some of the provisions of the act, were under consideration in State v. Tibbets, 52 Neb. 228, 71 N.W. 990, where it was ruled that the title selected by the legislature was not general and comprehensive, but restricted and limited, and that the courts have no power, by mere construction, to enlarge or amend it; that the title indicates a purpose to amend certain enumerated sections of a prior designated act, and that no amendment is allowable to a particular section which is not germane to the subject-matter of the original section proposed to be altered or changed; and that under such a limited title it will not meet the requirements of the constitution to engraft a new provision upon a section not germane thereto, although such new provision could properly have been proposed as an amendment of another section likewise mentioned in said title. Stated differently, the rule to be applied to the amendment of each particular section of the thirty-three designated in this act is precisely the same as where the amendatory act consists of a single section. With these general observations we pass to a consideration of some of the criticisms made upon this amendatory law.
Section 32 of said senate file is complained of. (Session Laws, 1897 ch. 14, p. 179.) It, in form, is amendatory of section 115 of the original act, which constituted the repealing clause of the old act, and provided "that an act entitled 'An act to incorporate cities of the first class having less than 60,000 inhabitants, and more than 25,000 inhabitants, and regulating their duties, powers, and government,' approved March 25, 1887, and all acts amendatory thereof, and all acts and parts of acts or laws in conflict herewith, be and the same are hereby repealed." This section 32 was amended so as to read: "That said original sections three (3), eight (8), nine (9), ten (10), eleven (11), twelve (12), thirteen (13), * * * and ninety-one (91) of said act as now existing, and all acts and parts of acts inconsistent with this act, be and the same are hereby repealed." The amendment of the repealing clause of a prior law which is the subject of amendment, for the purpose of effecting a repeal of the original sections sought to be amended, is indeed novel, but it does not for that reason contravene any constitutional provision. The framers of this law had a perfect right to indulge in originality of expression, so long as the language employed reflected the intention of the law-giver. As stated by counsel for respondents, ...
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