State ex rel. Johnson v. Chase

• Decision Date: 22 November 1946
• Docket Number: 32160.
• Citation: 25 N.W.2d 1,147 Neb. 758
• Parties: STATE ex rel. JOHNSON, Attorney General, v. CHASE.
• Court: Nebraska Supreme Court

25 N.W.2d 1

147 Neb. 758

STATE ex rel. JOHNSON, Attorney General, v. CHASE.

No. 32160.

Supreme Court of Nebraska

November 22, 1946

Syllabus by the Court.

1. The language of the Constitution is to be interpreted with reference to the established laws, usages and customs of the country at the time of its adoption.

2. The Constitution must be read in connection with the facts of history and the development of a representative form of government.

3. The words and terms of a constitutional provision are to be interpreted and understood in their most natural and obvious meaning, unless the subject indicates or the text suggests that they have been used in a technical sense.

4. The Constitution as amended must be construed as a whole.

5. Legislative construction of a statutory or constitutional provision, although not conclusive upon the courts, when deliberately made is entitled to great weight.

6. The legislature has, over a long period of years, interpreted the Constitution as permitting the creation of boards commissions, and agencies that are not executive departments within the constitutional definition. Such a commission is the Liquor Control Commission, which does not conform to the constitutional requirements for an executive department.

7. The Nebraska Liquor Control Commission is a body created by the Legislature to carry into effect legislative policies embodied in the statute in accordance with the legislative standards therein prescribed.

8. The duties of the Nebraska Liquor Control Commission are performed without executive leave and, in the contemplation of the statute, free from executive control.

9. To the extent that the Liquor Control Commission exercises any executive function as distinguished from the executive power in the constitutional sense, it does so in the discharge and effectuation of the legislative powers conferred upon it and in its capacity in exercising quasi-judicial powers.

10. The 'heads of executive departments' as referred to in section 1, article IV, of the Constitution, means the actual heads of such departments, charged with the particular duties of the execution and enforcement of the laws pertinent to the department, and who in all other respects are required to conform to the constitutional requirements governing such office and to comply with legislative enactments with respect thereto.

Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for relator.

Davis Stubbs & Healey, of Lincoln, for respondent.

Heard before SIMMONS, C. J., PAINE, CARTER, MESSMORE, CHAPPELL, and WENKE JJ., and POLLOCK, District Judge.

MESSMORE Justice.

This is an original action which arises by the filing of an information in quo warranto for the purpose of having this court inquire into the matter and enter its judgment as to whether or not the respondent, a member of the Nebraska Liquor Control Commission, was eligible by appointment of the Governor, to accept the office of district judge of the Fourth Judicial District of Nebraska.

The Liquor Control Commission, when plausible to do so, will hereinafter be referred to as the Commission.

The parties stipulated in substance as follows: That the respondent was appointed to the office of Nebraska Liquor Control Commissioner on May 25, 1941, for the statutory term of six years terminating May 25, 1947, and took the statutory oath of office as required by section 53-109, R.S.1943; that the respondent filed a bond in the sum of $25,000, conditioned as required by section 53-109, R.S. 1943, which was approved by the required officials, and thereafter assumed and purported to act as a member of said Commission; that the appointment of the respondent was not submitted to the Legislature for confirmation nor confirmed by it; that the respondent, a Reserve officer in the United States Army, was called to active duty in March 1942, at which time he relinquished his duties on the Commission and another appointment was made pending his return from military service. He was released from military duty in June 1945, and resumed his place on the Commission again without confirmation by the Legislature or the giving of a new bond, or taking a new oath. On July 1, 1946, respondent was appointed by the Governor to the office of district judge of the Fourth Judicial District of the state of Nebraska, in which office a vacancy then existed, and that he accepted and qualified and is now serving as district judge.

The information alleges that during the term for which he, the respondent, was a duly appointed, qualified, and acting Nebraska Liquor Control Commissioner he by virtue thereof was the head of a constitutionally established executive department and as such was ineligible to any other state office during the period for which he had been appointed.

The answer of the respondent denies specifically the foregoing allegation of the information. It affirmatively alleges that the Nebraska Liquor Control Commission is not mentioned as an executive department of the state of Nebraska as enumerated in the state Constitution; also alleges that the Nebraska Liquor Control Commission is an independent and quasi-judicial administrative commission set up by special act of the Legislature, and that the Legislature in its creation followed none of the constitutional requirements for the creation of a new executive department. It alleges also that the Legislature of the state has interpreted the constitutional provisions relating to the creation of 'heads of executive departments' and by the passage of the act creating the Nebraska Liquor Control Commission did not create or intend to create an 'executive department' having a 'head' within the meaning of the Constitution. The answer further alleges that the statute creating the Commission was further interpreted by the chief executive of the state in office at the time of the passage of the bill, and by all chief executives thereafter, and the fact is that no names or appointments to the Commission were ever submitted to the Legislature for confirmation for eight years after the passage of the Act, despite clear constitutional provisions requiring confirmation of heads of executive departments.

The respondent alleges that he is not, in any event, the 'head of an executive department' mentioned in the Constitution, and was not required to, nor did he, give the bond required of the heads of executive offices under the Constitution, nor did he ever exercise executive authority as the head of an executive department.

Facts pleaded in the answer with reference to the foregoing allegations will appear in the opinion as occasion requires.

The two questions of importance presented by the relator are as follows:

(1) Is the division of state government known as the Nebraska Liquor Control Commission, created by Laws 1935, ch. 116, p. 373, now ch. 53, sections 53-101 through and including section 53-1,118, R.S.1943, an executive department of the state within the meaning of section 1, article IV, of the Constitution adopted in 1920, which insofar as applicable reads: 'The executive officers of the state shall be the Governor, Lieutenant Governor, Secretary of the State, Auditor of Public Accounts, Treasurer, Attorney General, Superintendent of Public Instruction and the heads of such other executive departments as may be established by law. * * *'?

(2) Is a duly appointed, qualified, and acting Commissioner of the Nebraska Liquor Control Commission a head of an executive department of the state and therefore ineligible for appointment to any other state office during the term of office in which he is serving as such commissioner within the contemplation of that part of section 2, article IV, of the Constitution, insofar as applicable, reading as follows: 'None of the officers mentioned in this article shall be eligible to any other state office during the period for which they have been elected or appointed.'?

The Nebraska Liquor Control Act was passed by the Legislature of 1935. Laws 1935, ch. 116, p. 373. While the act received two-thirds majority of the members elected to the Legislature, as is provided by section 27, article IV, of the Constitution, as amended in 1920, to create an executive state office, such fact is not a criterion that the Legislature intended to, or purposed to, create a new executive department of government within the contemplation of section 1, article IV, of the Constitution. The Legislature might have voted unanimously for the act and still not have intended to create an executive department of government within the contemplation of the Constitution. It will therefore become necessary to analyze the act to determine the intention and purpose of the Legislature in passing it.

In approaching a determination of the two questions thus presented, it is well to remember that there are well defined rules of law governing the interpretation of a constitution, the provisions thereof and the amendments thereto.

'The language of the Constitution is to be interpreted with reference to the established laws, usages, and customs of the country at the time of its adoption, * * *.' In re Hammond, 83 Neb. 636, 120 N.W. 203, 23 L.R.A.,N.S., 1173, followed in State v. McMullen, 119 Neb. 739, 230 N.W. 677, 679. The latter case cites with approval from Hinz v. Musselshell County, 82 Mont. 502, 267 P. 1113. 'Our state Constitution must be construed in the light of the history of the commonwealth, the surrounding circumstances, the subject-matter under consideration, the object sought to be attained, as well as the system of laws which were in force in the territory at the time of its adoption.'

'The Constitution must be read in connection with the facts of history and the development of...