State ex rel. Sch. Dist. No. 6, of Pierce Cnty. v. Bd. of Cnty. Comm'rs of Pierce Cnty.

• Decision Date: 29 September 1880
• Citation: 10 Neb. 476,6 N.W. 763
• Parties: THE STATE EX REL. SCHOOL DISTRICT NO. 6, OF PIERCE COUNTY, v. THE BOARD OF COUNTY COMMISSIONERS OF PIERCE COUNTY.
• Court: Nebraska Supreme Court

10 Neb. 476

6 N.W. 763

THE STATE EX REL. SCHOOL DISTRICT NO. 6, OF PIERCE COUNTY,

v.THE BOARD OF COUNTY COMMISSIONERS OF PIERCE COUNTY.

Supreme Court of Nebraska.

Filed September 29, 1880.

Error to the district court of Pierce county.

George B. Fletcher, for plaintiff in error.

No appearance for defendant in error.

LAKE, J.

This is a petition in error for the reversal of a judgment of the district court sustaining a general demurrer to an alternative writ of mandamus. It appears that the alternative writ was awarded by the judge of the court upon an application made to him at his chambers in vaction. We suppose that the judge, in entertaining the application, supposed he was given jurisdiction to do so by section 30 of the act to amend chapter 13 of the Revised Statutes, approved February 27, 1879, as this is the only statute from which such jurisdiction could possibly have been inferred. Laws 1879, p. 90. The portion of that section to which we refer is in these words: “A judge of the district court may sit at chambers anywhere within his district for the purpose of * * * hearing an application for mandamus,” etc. In the use of this language it is evident to us that the legislature did not suppose they were conferring upon judges at chambers an enlarged or additional authority, but simply providing for the exercise of that which they already had.

But, even if we are wrong in this construction, there is still stronger reason for holding that this amendment gives no additional jurisdiction to the judges of the district courts. It is this: that by a mere amendment of the act in question, the legislature had no power under our present constitution to bring into it a new subject, and one which is entirely foreign to its title. Section 11, art. 3 of the constitution, 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amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed.” The act of 1866, to which this amendment was made, has a very restrictive title, it being simply “Courts,” and was passed when no such limitation upon the discretion of the legislature in the enactment of laws as the foregoing existed. In view of that limitation it would hardly be contended by the merest tyro in the law that under this title the legislature could, by an original enactment, confer upon judges of courts during vacation any jurisdiction whatever; and if the legislature could not do this directly by means of an original act, surely it could not be done by an amendment of this one, wherein, with the single exception of the district court...