State ex rel. Hensley v. Plasters

• Decision Date: 06 December 1905
• Citation: 74 Neb. 652,105 N.W. 1092
• Parties: STATE EX REL. HENSLEY v. PLASTERS, COUNTY CLERK.
• Court: Nebraska Supreme Court

74 Neb. 652

105 N.W. 1092

STATE EX REL. HENSLEY

v.PLASTERS, COUNTY CLERK.

Supreme Court of Nebraska.

Dec. 6, 1905.

Syllabus by the Court.

The Legislature cannot appoint county officers, nor by an act solely for that purpose extend the terms of such officers.

Chapter 47, p. 292, of the Laws of 1905, is unconstitutional and void.

Application by the state, on the relation of C. B. Hensley, for writ of mandamus to James Plasters, clerk of Gage county. Writ granted.

Barnes, J., dissenting.

E. N. Kauffman and M. B. Davis, for relator.

Fawcett & Abbott, amicus curiæ S. D. Killen, Co., Atty., Samuel Rinaker, Norris Brown, Atty. Gen., W. T. Thompson, Deputy Atty. Gen., and R. S. Bibb, for respondent.

SEDGWICK, J.

The last Legislature enacted what was known as the “biennial election law,” the purpose of which was to dispense with annual elections and to provide for the holding of a general election on each alternate year. The act in express terms provided for the filling of many offices by election in the year 1906, which elections would otherwise have been held in the year 1905. The office of register of deeds was expressly included in this provision. The statute was held to be unconstitutional in State v. Galusha (Neb.) 104 N. W. 197.There were also several independent acts of the Legislature making precisely the same provisions for various different offices, among them being chapter 47, p. 292, of the Laws of 1905, which provides for the office of register of deeds. This chapter purports to amend section 77a of article 1 of chapter 18 of the Compiled Statutes of Nebraska for the year 1903. This section was originally enacted in 1887, amended in 1889 (Laws 1889, p. 85, c. 12), and as so amended it provided that: “At the general election in the year 1889, and every four years thereafter, a register of deeds shall be elected in and for each county having a population of eighteen thousand and three (18,003) inhabitants or more, to be ascertained by the census of 1885, and each state and national census thereafter,” etc. It contains at length provisions in regard to the fees of the register of deeds, varying in different counties according to the number of inhabitants of the county. The only change made by the act of 1905 in question was the insertion of 1906 instead of 1889, so that the section should read: “At the general election in the year 1906, and every four years thereafter,” etc. By the act of 1887 the office was created, and it was provided that the election should be held at the general election of that year and every two years thereafter, so that the next election of the register of deeds would take place in the year 1889, which was not changed by the act of 1889. The term, however, by the latter act, was extended four years, and, by its provision that a register of deeds should be elected every four years thereafter, the election of the register of deeds would take place in 1905. If, then, this act of 1905 is valid, the effect would be to prevent the holding of an election for register of deeds in 1905 and to provide for the election of that officer in 1906, thereby extending the term of the officers now holding for the period of one year. The county clerk of Gage county refused to file the certificate of nomination of the relator as a candidate for the office of register of deeds, and refused to cause his name to be printed upon the official ballot as such candidate to be voted for at the election of 1905, and these proceedings were brought to obtain a writ of mandamus to compel him to do so. If the act in question is valid, the county clerk was right in his refusal, as there could be no election of register of deeds in the year 1905.

1. In the argument the constitutionality of the act was attacked upon several grounds. It was insisted that the sole purpose of this legislation was to provide for biennial elections; that this act was a part of the scheme of the Legislature mainly set forth in the more comprehensive act above referred to, but supplemented by several acts that manifestly had no purpose except to assist in the general object to do away with annual elections. From this premise it was argued that this act was unconstitutional, because the inducement for its enactment has failed with the failure of the more comprehensive act. To this it was objected that the court is never at liberty to look to one act of the Legislature for the inducement to another act. If the court could know that the sole inducement to the act was to assist in carrying out the provisions of a general act of the Legislature, enacted at the same time, that has been found to be unconstitutional and void, it would, of course, hold this act unconstitutional also. The argument is that the court cannot know this to be the case, but, on the other hand, must presume that the Legislature had some sufficient motive in enacting a law which is complete in itself. This seems to us somewhat like a relic of the earlier days, when courts continually presumed things to exist which they knew did not exist. We do not find it necessary to pass upon this curious question, since the statute must be held invalid for another reason.

2. Another objection urged against the constitutionality of the act was that the Legislature has no power to extend the terms of the present incumbents of the office of register of deeds by such legislation. The office is not mentioned in the Constitution. It is a creature of the statute, and there can, of course, be no doubt that the power that created the office may abolish it, or may change it, including the lengthening of the term of the office itself. There is no doubt of the validity of the act of 1889, the sole and manifest purpose of which was to extend the length of the term from two to four years; and likewise there can be no doubt that the term might be again reduced by the Legislature to two years, or that the office might be abolished entirely, and its duties imposed upon other officers. County of Douglas v. Timme, 32 Neb. 272, 49 N. W. 266. Again there can be no doubt that the Legislature, after it has established an office, or in the act of establishing it, may provide for filling the office either by election by the people or in a proper case by appointment by some designated authority. The Legislature, however, cannot itself fill the office. It cannot elect or appoint the officer (Const. art. 5, § 10; Clark v. Stanley, 66 N. C. 59, 8 Am. Rep. 488;State v. Holcomb, 46 Neb. 88, 64 N. W. 437), and it seems to us to follow that it cannot by direct legislation for that sole purpose cause an office to be held for the term, or any period of the term, by any particular individual.

The Supreme Court of California, in Christy v. B. S. Sacramento Co., 39 Cal. 3, held as stated in the syllabus: “But when office has been filled by an election, the Legislature may extend the term of the incumbent; provided the whole term, when extended, does not exceed the time limited by the Constitution.” The court said in the opinion: “If we had any doubt on this point, we should be very reluctant to arrive at a different conclusion, in view of the serious complications which might arise, growing out out of past legislation on this subject. The Legislature has so often exercised, unquestioned, the power to prolong the terms of the incumbents of elective officers, that it might result in the most embarrassing perplexities, if all these acts, at this late day, were pronounced to be void. They have repeatedly extended terms of supervisors, tax collectors, assessors, and all county officers. [Citing many acts of their Legislature.] Nothing but an imperious sense of duty, founded on the plainest principles of constitutional construction, would justify us in holding all these acts to be void after this lapse of time.” To our minds the reason for their holding set forth in this quotation is more satisfactory than the other reasons which the court attempted to give. It does not appear from the opinion that their Constitution contains an equivalent of our provision in section 13 of article 18 (Laws 1905, p. 43), to the effect that elective officers must be elected “at the general election next preceding the time of the termination of their respective terms of office.” We find no suggestion in their opinion as to what force or meaning should be given to such a constitutional provision. They say: “The people select the incumbent of the office, but the Legislature has the power to define the duration of the term”--that is, the people by election shall designate the person who shall hold the office, and the Legislature shall then provide for how long a time he shall hold. Again they say: “It cannot be denied that he was elected to the office, and that he would not be the incumbent of it, except for his election. The people have exercised their constitutional right in selecting him for the office,” etc. Such language as this does not satisfy our idea of the meaning and force of our constitutional provision. We think the idea of our Constitution is that the people shall choose a man to fit the established term, and not that the Legislature shall establish a term to fit the man who has been chosen. In the argument it was stated by counsel for the respondent that the inducement to this legislation was not to assist in carrying out the general idea of the more comprehensive biennial law, but the sole object of this legislation was to extend the terms of the various registers of deeds for one year; that is, by an act for that sole purpose the Legislature has declared that A., who is now occupying the office of register of deeds, and whose term for which the people elected him will expire in January next, shall hold that office for another year. This is nothing else than providing by legislative enactment who shall be register of deeds in the respective counties of the state from January, 1906, to January, 1907. This we think the...