State ex rel. Graham v. Tibbets

Decision Date26 June 1897
Citation52 Neb. 228,71 N.W. 990
PartiesSTATE EX REL. GRAHAM ET AL. v. TIBBETS ET AL.
CourtNebraska Supreme Court
OPINION TEXT STARTS HERE
Syllabus by the Court.

1. Under the provisions of section 11 of article 3 of the constitution, the title to an act must fairly express the subject of legislation.

2. Where the title to a bill is to amend an existing act, or a section thereof, no amendment is permissible which is not germane to the subject-matter of the original act or section indicated.

3. An act not complete in itself, but which is clearly amendatory in its nature and scope, must set forth the section or sections as amended, and repeal the original section or sections.

4. The title to an act entitled “An act to amend sections 3, 8, 9, 11, 13, * * * 91 and 115 of a prior act, is a restricted and limited one, which it is not the province of the courts to enlarge or amend. Under such a title, the amendment of any section must be germane to the particular original section proposed to be changed.

5. Section 31 of Senate File 176 of the legislature of 1897 (Laws 1897), purporting to amend section 91, art. 11, c. 13a, Comp. St. 1895, is unconstitutional and void, because, in conflict with section 11 of article 3 of the constitution of this state, it contains a subject-matter not expressed in the title to the act, nor germane to the original section, and is amendatory of prior laws.

Application by the state, on the relation of Frank A. Graham and others, for a writ of quo warranto against Addison S. Tibbets and others, to quiet title to office. Writ allowed.M. B. Reese, Burr & Burr, and Hiland H. Wheeler, for relators.

Tibbets Bros., Morey & Ferris, and Morning & Berge, for respondents.

NORVAL, J.

This was an original action of quo warranto, brought by the state, on the relation of Frank A. Graham, Richard S. Grimes, and Harry B. Vaill, against Addison S. Tibbets, John H. McClay, and Fred A. Miller, to test the right of the respondents to discharge the duties of the office of the excise board of the city of Lincoln. The information alleges, in effect, that the relator Graham is now, and for more than two years last past has been, the duly elected, qualified, and acting mayor of said city, and, by virtue of his office, is a member and chairman of the excise board of the city of Lincoln; that the relators Grimes and Vaill are the other members of such board, each having been elected in April, 1895, for the term of two years, and until the election and qualification of his successor in office, and duly qualified and entered upon the discharge of the duties and functions of such office, and no successors ever having been elected and qualified; and that the respondents, since the 19th day of April, 1897, have usurped and used and exercised the office of the excise board of the city of Lincoln, and excluded relators therefrom. The answer of the respondents substantially admits the averments contained in the information, and alleges, in effect, that the respondents, on the 23d day of March, 1897, were appointed and commissioned by Gov. Holcomb as members of the board of fire and police commissioners in and for the city of Lincoln; that each respondent accepted such appointment, and duly qualified as such commissioner, and that, since the act of the legislature of 1897 went into force, relators had no right or authority to perform the duties of the excise board of the city of Lincoln. To the answer relators demurred, and the cause has been submitted for determination.

The state legislature of 1889 passed a law, which received executive approval, entitled “An act to incorporate cities of the first class, and regulating their duties, powers, government and remedies.” Laws 1889, c. 14. The provisions of this act, with the subsequent acts amendatory thereto, govern cities of the class to which the city of Lincoln belongs. Section 13 of said act was amended in 1891 (chapter 8, Laws 1891; article 1, c. 13a, Comp. St. 1895). As thus amended, it provided that “a mayor, treasurer, clerk, water commissioner, city attorney, city engineer and police judge shall be elected by a plurality of votes for the term of two years, and biennially thereafter. * * * There shall also be in each city governed by this act an excise and police board, consisting of the mayor, who shall be ex officio member and chairman thereof, and two members elected by the city at large, who shall hold their offices for two years. The terms of all elective officers shall commence on the Tuesday next after their election, and continue until their successors are elected and qualified,” etc. It is under and by virtue of the foregoing piece of legislation that relators claim the right to discharge the duties and functions of the excise and police board of the city of Lincoln.

The respondents were appointed by the governor as members of the board of fire and police commissioners of said city, under the provisions of section 31 of the act of the legislature of 1897, known as “Senate File 176,” entitled “A bill for an act to amend sections three (3), eight (8), nine (9), eleven (11), twelve (12), thirteen (13), fourteen (14), fifteen (15), sixteen (16), seventeen (17), eighteen (18), twenty (20), twenty-one (21), twenty-six (26), twenty-eight (28), twenty-nine (29), thirty (30), thirty-one (31), thirty-three (33), thirty-seven (37), thirty-eight (38), fifty (50), sixty-four (64), sixty-five (65), sixty-seven (67), sixty-nine (69), seventy (70), seventy-one (71), seventy-eight (78), eighty (80), eighty-three (83), 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 and less than one hundred thousand inhabitants, and to repeal section ten (10), and repeal said original sections and all amendments thereto, and all acts and parts of acts inconsistent with this act.” Section 31 of the act reads thus: Sec. 31. That section 91 shall be amended to read as follows: Sec. 91. In a city of the first class there shall be a board of fire and police commissioners; who shall consist of three residents and electors of such city, who shall be appointed by the governor of the state. The governor shall within thirty days from and after the passage of this act, appoint as the commissioners above named, three citizens, not more than two of whom shall be from one political party; one of them shall be designated in said appointment to serve until May 1, 1898, the second to serve until May 1, 1899, and the third to serve until May 1, 1900. And thereafter at the expiration of said several terms, the governor shall appoint one member of said board for the term of three years. For official misconduct the governor may remove any of said commissioners; and persons aggrieved by any act of said commissioners may file written charges against such commissioner or commissioners with the governor, who shall within a reasonable time investigate the same upon testimony produced before him, and shall make a finding as to the truth or falsity of such charges, and any and all vacancies of said board by reason of death, resignation or removal shall be filled by said governor for the unexpired term, and all vacancies from whatever cause shall be so filled that not more than two of said board shall be of the same political party.’ The remainder of the section is too lengthy to reproduce here. For present purposes it is sufficient to state that it provides substantially that a majority of the board should constitute a quorum; that each commissioner, before entering upon his duties, should take and subscribe a prescribed oath of office, and give a bond in the sum of $1,000; that all the powers and duties connected with and incident to the appointment, removal, government, and discipline of the officers and members of the fire and police department of the city should be vested in and exercised by the board of fire and police commissioners; and that such board should have the exclusive control of the licensing and regulating of the sale of intoxicating liquors in such city, with a referendum clause reserving the right to have submitted, under certain conditions, the question of the licensing of the liquor traffic in such city to the qualified electors thereof. It is under the foregoing section that respondents claim to be officers, and which section relators insist is invalid and void, under section 11 of article 3 of the constitution, which declares that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title. And 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.” The constitutionality of said section 31 of the said act of 1897 is the important question presented for consideration. If said section is repugnant to the constitutional provision quoted, the demurrer to the answer of the respondents is well taken, and the writ prayed for in the relators' petition should be granted.

The eleventh section of article 3 of the state constitution has been often before the court for consideration, and the intent, scope, and object to be attained by its adoption as a part of the fundamental law has been so well and clearly stated in numerous decisions in this and other states as to render unnecessary a general discussion of the subject anew at this time. It has been uniformly decided that the provision of the constitution is mandatory, and that the courts will not declare a statute unconstitutional unless it is clearly so; furthermore,that the object of this provision concerning title to bills is to prevent obnoxious and surreptitious legislation, and not to prohibit comprehensive titles. White v. City of Lincoln, 5 Neb. 505;Paxton & Hershey Irrigating Canal & Land Co. v. Farmers' & Merchants' Irrigating & Land Co., 45 Neb. 884, 64 N. W. 343;Van...

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    ... ... of plurality of subjects." ( State v. Doherty, 3 ... Idaho 384, 29 P. 855; State v. Dolan, 13 Idaho 693, ... Board of Supervisors, 128 Mich. 552, 87 ... N.W. 789; State ex rel. Olson v. Board of ... Commissioners, 83 Minn. 65, 85 N.W. 830; Gage v ... constitutional requirement is met. ( State v ... Tibbets, 52 Neb. 228, 66 Am. St. 492, 71 N.W. 990; ... State ex rel. Comstock ... ...
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