State, ex rel. Cone v. Bauman

• Decision Date: 03 July 1930
• Docket Number: 27222
• Citation: 231 N.W. 693,120 Neb. 77
• Parties: STATE, EX REL. TRENMOR CONE, APPELLANT, v. OTTO BAUMAN, COUNTY TREASURER, APPELLEE
• Court: Nebraska Supreme Court

231 N.W. 693

120 Neb. 77

STATE, EX REL. TRENMOR CONE, APPELLANT, v. OTTO BAUMAN, COUNTY TREASURER, APPELLEE

No. 27222

Supreme Court of Nebraska

July 3, 1930

APPEAL from the district court for Douglas county: WILLIAM G HASTINGS, JUDGE. Reversed, with directions.

REVERSED.

Syllabus by the Court.

For the purpose of legislation, the Legislature may classify counties when such classification rests upon some difference of situation or circumstances which, in reason, calls for distinctive legislation for the class. The class must have a substantial quality or attribute which re quires legislation appropriate or necessary for the counties in the class and which would be inappropriate or unnecessary for those without the class.

The proviso in section 2, c. 166, Laws 1929, is invalid because it is special legislation and in violation of section 18 art. 3, of the Constitution.

Appeal from District Court, Douglas County; Hastings, Judge.

Mandamus by the State, on the relation of Trenmore Cone, against Otto Bauman, County Treasurer of Douglas County. Judgment of dismissal, and relator appeals.

Reversed and remanded, with directions.

Ziegler & Dunn, for appellant.

Henry J. Beal and W. W. Slabaugh, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, THOMPSON, EBERLY and DAY, JJ.

OPINION

GOOD, J.

This is a mandamus proceeding in which relator sought to compel the county treasurer of Douglas county to turn over or transfer to the county road fund the money by him received from the state treasurer, and which represented Douglas county's proportion of the motor vehicle fuel tax fund. In the trial court the action was disposed of on a general demurrer to relator's petition; the writ was denied and the action dismissed. Relator appeals.

The appeal involves the constitutionality of the proviso contained in section 2, ch. 166, Laws 1929. It is conceded that if the proviso is constitutional the writ was properly denied, and that if it is unconstitutional the writ should have issued.

Chapter 172, Laws 1925, imposes a tax upon the sale and distribution of motor vehicle fuels and provides for the disposition of the revenue derived therefrom. This legislative act was amended in some respects by chapter 151, Laws 1927, and again amended by the enactment of chapter 166, Laws 1929. Section 1 of the latter act provides for the collection by the state treasurer of a tax of four cents a gallon on motor vehicle fuels; and section 2 provides for the distribution of the fund so collected; one-fourth of the net proceeds of the tax collection is required to be transferred to the several county treasurers in certain proportions, and the amount thus transferred shall be credited to the county road fund. Then follows this proviso: "Provided, the money so transferred to the county treasurers in counties having a population of one hundred and fifty thousand or more shall be used by the county treasurer to pay the interest on and retire any present existing county highway construction bonds, and the balance, if any, shall be credited to the county road fund."

From the record it appears that Douglas county has issued $ 3,000,000 of highway construction bonds and that it is the only county in which such bonds have been issued. Demand was made upon the county treasurer to transfer to the county road fund of Douglas county the fund so received from the state treasurer. The demand was refused on the ground that, said county having a population of more than 150,000, the disposition of the fund is controlled by the proviso in section 2, ch. 166, Laws 1929. Relator contends that the proviso is invalid because it conflicts with several provisions of the state Constitution, but particularly in that it violates section 18, art. III, which inhibits the legislature from passing a special law where a general law can be made applicable. On the other hand, respondent urges that the proviso is susceptible of two constructions. By the one it might be construed to refer only to bonds existing at the time of the adoption of the legislative act; by the other, that it would apply to bonds existing at the time any of the tax collections were turned over to the county treasurer. Respondent advances the proposition that, where a legislative act is susceptible of two constructions, one of which would render it constitutional and the other unconstitutional, the former is to be preferred.

The legal proposition may be conceded to be sound, and, for argument's sake, it may be conceded that the proviso might be construed to relate to any bonds that might be in existence when the fund arising from the tax is paid over to the treasurer of Douglas county. We are still confronted, however, with the question as to whether the classification is arbitrary and unreasonable.

In Galloway v. Wolfe, 117 Neb. 824, 223 N.W. 1, this court had under consideration the validity of a statute making it unlawful for any person, of the age of 14 years and upward, to engage in public dancing on Sunday, except in cities of the metropolitan class having a public welfare board, with authority to regulate public dancing, and the court held the act to be in violation of section 18, art. III of the Constitution. Many of the decisions of this court, as well as those from other jurisdictions, were cited and quoted from in the opinion in that case.

We recognize that many statutes, dealing with governmental questions, have classified counties and cities according to their population, and that such classifications have been upheld, but in all of those cases some reason for the classification has been disclosed. We think the rule that should be applied is well stated in Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 560, 46 L.Ed. 679, 22 S.Ct. 431, wherein it is said: "The difficulty is not met by saying that, generally speaking, the state when enacting laws may, in its discretion, make a classification of persons, firms, corporations and associations, in order to subserve public objects. For this court has held that classification 'must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But arbitrary selection can never be justified by calling it classification.'"

The rule is also set forth in 26 R. C. L. 243, sec. 216, in the following language: "It must appear not only that a classification has been made, but also that it is one based upon some reasonable grounds--some difference which bears a just and proper relation to the attempted classification--and is not a mere arbitrary selection, and there can be no discrimination between subjects which properly belong to the same class."

In 1 Lewis' Sutherland Statutory Construction (2d ed.) 401 sec. 216, it is...