State ex rel. Douglas County v. Frank

• Decision Date: 07 June 1900
• Docket Number: 11,384
• Citation: State ex rel. Douglas County v. Frank, 60 Neb. 327, 83 N.W. 74 (Neb. 1900)
• Parties: STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. ALBYN L. FRANK
• Court: Nebraska Supreme Court

83 N.W. 74

60 Neb. 327

STATE OF NEBRASKA, EX REL. DOUGLAS COUNTY, v. ALBYN L. FRANK

No. 11,384

Supreme Court of Nebraska

June 7, 1900

ERROR to the district court for Douglas county.Tried below before ESTELLE, J. Reversed.

REVERSED AND REMANDED.

George W. Shields, for plaintiff in error:

Courts will not declare an act unconstitutional, unless it appears to be so beyond a reasonable doubt.Pleuler v State,11 Neb. 547.

But is it essential that there should be affirmative proof that the house journal ever did contain a record of concurrence?Hull v. Miller,4 Neb. 505;State v. Moore,37 Neb. 13;State v. Liedtke, 9 Neb. 490.

As to special legislation: State v. Stuht,52 Neb. 209;County of Douglas v. Timme, 32 Neb. 272.

The next point made by the respondent in the court below is that the law in question amends section 1 of chapter 28, and also amends section 43 of chapter 19, both of the Compiled Statutes of 1897; and, because the bill(House Roll 251) did not contain these two sections as amended, nor repeal them it is inimical to that part of section 11, article 3, of the constitution, providing 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amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed."I shall not claim that the bill is valid if it can be said that it amended either of the sections last above referred to, but I insist that it does not amend nor attempt to amend either of those sections.This court has said in deciding many cases that the object of the constitutional provision last above referred to was to give certainty to the law by removing all apparently conflicting provisions.State v. Wish,15 Neb. 448;State v. City of Kearney,49 Neb. 325;State v. Babcock,23 Neb. 128;Fenton v. Yule, 27 Neb. 758.

The bill is not broader than its title.State v. Lancaster County,6 Neb. 485;Boggs v. Washington County,10 Neb. 297;Bonorden v. Kriz,13 Neb. 121;Herold v. State,21 Neb. 50;Perry v. Gross,25 Neb. 826;Poffenbarger v. Smith,27 Neb. 788;Stoppert v. Nierle,45 Neb. 105;Affholder v. State,51 Neb. 91;State v. Cornell, 54 Neb. 72.

Ed P. Smith and Greene & Breckenridge, contra:

Was House RollNo. 251 passed by the legislature in the manner and form required by the constitution?Constitution, art. 3, sec. 10;Cooley, Constitutional Limitations[5th ed.], p. 169;Ryan v. Lynch,68 Ill. 160;Steckert v. East Saginaw,22 Mich. 104;People v. Commissioners,54 N.Y. 276;Cohn v. Kingsley,38 L. R. A. 74;Oakland Paving Co. v. Hilton,69 Cal. 479;Koehler v. Hill,60 Ia. 543;Hunt v. State,22 Tex.App. 396;State v. Buckley,54 Ala. 599;Town of South Ottawa v. Perkins,94 U.S. 260;Post v. Supervisors,105 U.S. 667;People v. Mahaney,13 Mich. 481;Rode v. Phelps,80 Mich. 598;Moody v. State, 48 Ala. 115.

The enrolled bill can be impeached by the house and senate journals, and can not be impeached by anything else.Such is the rule laid down with emphasis in the cases of In re Granger,56 Neb. 260;State v. Abbott,59 Neb. 106;Webster v. City of Hastings, 59 Neb. 563.

If the requirements of the constitution with respect to the enactment and passage of bills were observed in the case of House Roll 251, it is inherently unconstitutional and void.House RollNo. 251 is special legislation.Section 15 of article 3 of the constitution prohibits the "creating, increasing and decreasing fees, percentage or allowances of public officers during the term for which said officers are elected or appointed."Section 16 provides: "Nor shall the compensation of any public officer be increased or diminished during his term of office."It is held in County of Douglas v. Timme,32 Neb. 272, that the provision quoted from section 16"applies alone to those officers whose offices were created by the constitution."The office of the clerk of the district court is not created by the constitution, and if the construction given section 16 is followed, then section 15 applies to offices created by the legislature; and it is insisted that, so far as this respondent is concerned, this act is as absolutely a special law as though Albyn L. Frank had been named therein, because the legislature will be credited with knowing, not much it is true, but at least that there was but one county in the state of Nebraska having more than one hundred thousand inhabitants.

The additions in House RollNo. 251, to section 3 of chapter 28 of the Compiled Statutes of 1897, are not germane to the section amended.House RollNo. 251 is amendatory of other sections besides section 3 of chapter 28, not contained or referred to therein.Trumble v. Trumble,37 Neb. 340.

OPINION

SULLIVAN, J.

This proceeding in error brings before us for review a judgment of the district court denying the application of the relator for a writ of mandamus requiring the respondent, Albyn L. Frank, as clerk of the district court for Douglas county, to make a report, under oath, of the fees received by him as such clerk during the quarter ending on the first Tuesday of January, 1900.The question for decision is the validity of an act of the last legislature amending section 3 of chapter 28, Compiled Statutes of 1897.The original act on the subject of fees was adopted in 1865 under the title "An act to regulate the salaries and fees of certain officers in the territory of Nebraska."The first section declared then, as it declares now, that "The salaries and fees of the several officers hereinafter named shall be as follows."Originally the third section did nothing more than fix the charges and compensation of the clerk of the district court for official services.But in 1899 there was grafted upon this section the following amendment: "If the fees of said clerk shall exceed sixteen hundred ($ 1600) dollars per annum in counties having less than twenty-five thousand inhabitants or if the fees shall exceed three thousand ($ 3,000) dollars per annum in counties having more than twenty-five thousand inhabitants and less than fifty thousand inhabitants, or if the fees shall exceed thirty-five hundred ($ 3500) dollars per annum, in counties having more than fifty thousand inhabitants and less than one hundred thousand inhabitants, or if the fees shall exceed five thousand ($ 5,000) dollars per annum in counties having more than one hundred thousand inhabitants, said clerk shall pay such excess into the treasury of the county in which he holds his office.Provided also that the clerk of the district court of each county shall on the first Tuesday of January, April, July, and October of each year make a report to the board of county commissioners under oath showing the different items of fees received, from whom, at what time, and for what service, and the total amount of fees received by such officer since the last report, and also the amount received for the current year.Provided further that if the county board of commissioners think necessary, said clerk may be allowed one deputy at a compensation not to exceed one half that allowed his principal; and such other assistants at such a compensation and for such time as aforesaid board may allow, and that none of said clerks, deputies or assistants shall receive any other compensation than that accruing to their office."Counsel for respondent concede that their client is within the provisions of the foregoing amendment, and that he must, if the act is valid, render to the county board of Douglas county a sworn statement of the fees which he received during the last quarter of 1899.It is, however, insisted with great earnestness and confidence that the act is of no validity because, in its adoption, the legislature disregarded certain mandatory provisions of the organic law.

The first two objections to the statute may be considered together.They are (1) that the journal of the house of representatives does not show the concurrence of that body in a certain senate amendment which became a part of the enrolled bill; and (2) that upon the final passage of the bill in the house the yeas and nays were not entered upon the journal, as required by section 10, article 3, of the constitution.There is some contrariety of judicial opinion touching the power of the courts to annul a statute for a failure on the part of the legislature to evidence its proceedings in the manner prescribed by the constitution; and the adjudged cases are almost evenly divided as to what constitutes the best evidence of the statutory law.Some courts, among them the supreme court of the United States, hold that the enrolled bill on file in the office of the secretary of state, bearing the certificate of the presiding officers of the two branches of the legislature and the approval of the governor, imports absolute verity and precludes any inquiry into the procedure by which it was adopted.Field v. Clark, 143 U.S. 649;Standard Under-Ground Cable Co. v. Attorney General, 46 N.J.Eq. 270, 19 A. 733;Sherman v. Story, 30 Cal. 253, 256;Weeks v. Smith, 81 Me. 538, 18 A. 325;Ex parte Wren, 63 Miss. 512;State v. Glenn, 18 Nev. 34, 1 P. 186;People v. Marlborough Commissioners, 54 N.Y. 276;Williams v. Taylor, 83 Tex. 667, 19 S.W. 156.The rule in other jurisdictions is that the enrollment, authentication and approval of a bill, found in the proper repository, are only prima facie evidence of its due enactment; and that the legislative journals, if properly kept, contain the authentic history of the measure.Henderson v. State, 94 Ala. 95, 10 So. 332;People v. Loewenthal, 93 Ill. 191;State v. Francis, 26 Kan. 724;People v. Mahaney, 13 Mich. 481;Osburn v. Staley, 5 W.Va. 85;Meracle v. Down, 64 Wis. 323, 25 N.W. 412;State v. Platt, 2 S.C. 150.While there is much reason for holding that a...