State, ex rel. Prout v. Nolan

• Decision Date: 17 February 1904
• Docket Number: 13,327
• Citation: 98 N.W. 657,71 Neb. 136
• Parties: STATE, EX REL. FRANK N. PROUT, ATTORNEY GENERAL, v. THOMAS J. NOLAN ET AL
• Court: Nebraska Supreme Court

98 N.W. 657

71 Neb. 136

STATE, EX REL. FRANK N. PROUT, ATTORNEY GENERAL, v. THOMAS J. NOLAN ET AL

No. 13,327

Supreme Court of Nebraska

February 17, 1904

ORIGINAL application in the nature of quo warranto to determine the rights of respondents to office as fire and police commissioners of a city of the first class.Writ denied.

WRIT DENIED.

Frank N. Prout, Attorney General, Norris Brown, Smyth & Smith and A. H. Murdock, for relator.

F. A Brogan and James H. Van Dusen, contra.

OPINION

BARNES, J.

This original action in quo warranto was commenced by the attorney general for the purpose of testing the validity of chapter 17 of the laws of 1903, otherwise known as the South Omaha Charter, and more particularly that part of the act which provides for the appointment of a board of fire and police commissioners.To that end a petition was filed against the respondents, Thomas J. Nolan, A. L. Bergquist, William B. Van Sant, Alfred A. Nixon and George W. Masson, praying that they be required to show by what warrant or authority they assumed to act as fire and police commissioners of the city of South Omaha, and claimed to hold such public office.To this petition the respondents filed an answer, which was demurred to by the relator.Thereafter, by permission of the court, an amended answer was filed, in which respondents properly justified under the provisions of the act in question.The demurrer was not refiled but, it having been treated as though it applied to the amended answer, we will consider it as refiled, and thus the validity of that part of the act under which the respondents were appointed, and now hold their office, is put in issue.The act in question is chapter 17 of the laws of 1903(Compiled Statutes, ch. 13, art. II), and will be hereinafter referred to as the charter.

It is stated in relator's brief that the answer is insufficient in form and substance, but, the amended answer having been filed after that part of the brief was written, and the defects of the original answer, if any, having been cured thereby, it is unnecessary to devote any further time to the pleadings, so we come at once to the consideration of the question of the validity of the charter.It may be stated at the outset that we should not declare a law void for slight and trivial reasons, but, if possible, sustain the legislative will.So, in the examination of this question, we will be governed by the rule, that a legislative act will not be declared unconstitutional, unless it is so clearly in conflict with some provision of the fundamental law that it can not stand.

Section 63 of the act provides for a board of fire and police commissioners to consist of five electors of the city appointed by the governor.It also makes specific provisions as to when and how the appointments shall be made, and term of office; it also defines the qualifications of members of the board, together with the powers and duties of that body; and the relator's attacks are particularly directed to this part of the charter.The general question relating to the constitutionality of such legislation has been before us several times.In the case of State v. Broatch,68 Neb. 687, 94 N.W. 1016, the validity of such a provision was the question before the court.The Omaha charter, which was in question in that case, provides for the appointment of a board of fire and police commissioners by the governor, and its validity was attacked by a proceeding in quo warranto.It was held:

"The legislature may by statute confer upon the governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class" citing Redell v. Moores,63 Neb. 219, 88 N.W. 243.These cases clearly overrule all of the prior decisions of this court holding a contrary doctrine, and so, it may be considered as the settled law of this state that the section in question is constitutional, so far as that phase of the controversy is concerned.Again, it is apparent, from an examination of the whole act, that it was the purpose of the legislature to substantially reenact the charter of 1901 under which the city was conducting its affairs at the time the new charter was passed, with only such changes and amendments as would place the fire and police department of the city under the control of a board to be appointed by the governor of the state, instead of a board appointed by the mayor, and confirmed by the city council.It is clearly the duty of the state, in the exercise of its police powers, to maintain peace and good order, and protect the welfare of its citizens wherever they may be found within its borders.And whenever it appears that any of its municipalities are, for any reason, unable to maintain such conditions of security and good order, it is proper for the legislature to enact such laws as will accomplish that end.Of late, it has been quite generally recognized that there are conditions existing in some of our cities, growing out of the appointment and management of their police departments, with which the local authorities are unable to successfully cope; and that an independent board, created by an authority entirely removed from, and in no way influenced by, local conditions, can best conserve the interests of the public in those matters.That policy first found expression in the Omaha charter of 1887, and was the subject of much litigation, and some conflicting decisions, until the principle was finally and firmly settled in the case of State v. Broatch, supra.And so, the legislature, in order to adopt this policy, reenacted the old charter with the changes above mentioned, and, in so doing, we are satisfied that it did not exceed its legitimate...