State ex rel. Pearman v. Liedtke

Decision Date10 January 1880
Citation4 N.W. 75,9 Neb. 490
PartiesTHE STATE OF NEBRASKA EX REL. J. W. PEARMAN v. F. W. LIEDTKE, AUDITOR, ETC.
CourtNebraska Supreme Court

OPINION TEXT STARTS HERE

COBB, J.

The act under which the relator claims is entitled “An act making appropriations for the payment of miscellaneous items of indebtedness owing by the state of Nebraska,” and was approved February 27, 1879. It contains 92 distinct appropriations to as many separate persons and firms, for as many different causes of indebtedness on the part of the state, divided under seven heads: penitentiary, capitol building, blind asylum, insane asylum, stationery, sheriffs' fees, and miscellaneous. The relator's claim is the eightyseventh item, and is in the following words: “16. J. W. Pearman, for military services, $3,000. [That said $3,000 remain in the treasury of the state, and not to be paid or drawn out until the general government shall reimburse the said amount to this state.]

The constitution of the state contains the following provision:

Section 2. Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken on the final passage.”

The relator states in his affidavit accompanying his motion for a writ of mandamus that the “said clause (the clause in brackets above) is unconstitutional and void, because it is and was an amendment to the original bill, proposed on the last night of the session of the leglslature of the state of Nebraska, at which said act was passed, which said amendment was not printed before the vote was taken on the final passage of the bill,” etc.

This allegation is not denied by the respondent, and for that reason the relator claims judgment upon the pleadings. Ordinarily, where a material fact is alleged in a petition, or paper which stands in the place of a petition, and is not denied by the defendant in his answer, such fact will be taken and considered as true, the same as though proved by the amplest evidence. But this question is not within the ordinary rule. This is not an allegation of fact involving the merits of the plaintiff's claim to be paid $3,000 by the state. It is an allegation that a certain clause of the statute, approved by the executive, and published by the state, for the guidance and government of the courts as well as all the people of the state, is or is not the law of the land. It, therefore, becomes the duty of the court to avail itself of all the means within its reach to ascertain the truth or falsity of such allegation--a duty which it cannot shirk because of the failure of the respondent to deny the truth of such allegation.

Upon a thorough examination of the journals of the two houses for the last session I find that it is probably true that the clause in question was not printed. But I also come to the conclusion that the letter of the constitution did not require that it should be printed in limine. And while such requirement is probably within the spirit of the constitutional provision referred to, I have met with no authority which has gone so far as to reject a provision of a statute because of its conflict with the spirit only of a constitutional provision.

The act in question originated in the house and constituted House roll 190. Said bill having been reported to the house from the committee of claims on the fifteenth day of February, 1879, was read on two different days, considered in committee of the whole, amended, engrossed for a third reading, read a third time on a day different from that of its first or second reading, and on the twentieth day of February the said bill was declared by the speaker to have been read at large on three different days, and the same, with all its amendments, having been printed, whereupon it was put upon its final passage by yeas and nays, and having received a constitutional majority was declared passed.

This bill as it passed the house contained no appropriation to the relator. It went to the senate on the same day of its passage by the house, and on the following day received its first reading in that body; its second reading on the twenty-second February. On the 24th the bill was amended in the senate and referred to the committee of claims with instructions. On the same day it was reported to the senate from the said committee with sundry amendments, among which is the item of $3,000 to the relator for military services, but without the other words constituting the said clause as it now stands. On the same day the bill with the amendments reported from the committee of claims was considered in committee of the whole, and upon the report of the committee of the whole was adopted by the senate. On the 25th the bill was read the third time, whereupon the president of the senate declared that the said bill had been read at large on three different days, and the same, with all its amendments, having been printed, he put the same upon its passage and the bill passed the senate by a constitutional majority.

It will thus be seen that the constitutional provision requiring the bill and all amendments thereto to be “printed before the vote is taken upon its final passage,” had spent its entire force upon the bill in question before the clause limiting or qualifying the appropriation to the relator had been proposed.

The words “final passage,” as applied to matters of legislation, were well known to the framers of the constitution, and presumably so to the people who adopted it; and it is a part of the legislative and political history of the country that a large per cent. of the most important legislation of the state, as well as of the national government, consists of measures proposed as amendments to bills by...

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2 cases
  • Scott v. State Bd. of Assessment and Review
    • United States
    • Iowa Supreme Court
    • 5 May 1936
    ...the cases are not in entire accord, we think the weight of authority in other jurisdictions sustains our conclusion. State v. Liedtke, 9 Neb. 490, 4 N.W. 75; v. Anderson, 66 Neb. 252, 92 N.W. 306, 96 N.W. 212, 98 N.W. 1075, 5 L.R.A.(N.S.) 136; State v. Dillon (1900) 42 Fla. 95, 28 So. 781; ......
  • State ex rel. Pearman v. Liedtke
    • United States
    • Nebraska Supreme Court
    • 10 January 1880

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