State ex rel. Scott v. Bowen

• Decision Date: 17 March 1898
• Citation: 54 Neb. 211,74 N.W. 615
• Parties: STATE EX REL. SCOTT v. BOWEN.
• Court: Nebraska Supreme Court

54 Neb. 211

74 N.W. 615

STATE EX REL. SCOTT

v.BOWEN.

Supreme Court of Nebraska.

March 17, 1898.

Syllabus by the Court.

1. Where the title to a bill is to amend a designated section of a law, no amendment is permissible which is not germane to the subject-matter of the particular original section proposed to be changed.

2. When the invalid part of an act was the consideration or inducement for the passage of the residue, the valid and invalid portions will fall together.

3. Section 31, c. 14, Laws 1897, purporting to amend section 91, art. 1, c. 13a, Comp. St. 1895, contravenes section 11, art. 3, of the constitution, since said amended section contains new matter of legislation not germane to the original.

4. Said section 31, c. 14, was the motive inducement to the passage of sections 6 and 7 of the same chapter, purporting to amend sections 13, 14, art. 1, c. 13a, Comp. St. 1895, and the unconstitutionality of said section 31 invalidates said sections 6 and 7, leaving the original sections in full force and effect.

Error to district court, Lancaster county; Cornish, Judge.

Mandamus by the state, on the relation of Alfred W. Scott, against John W. Bowen, as city clerk of the city of Lincoln. From a judgment for defendant, relator brings error. Reversed.

G. M. Lambertson, Roscoe Pound, and J. R. Webster, for plaintiff in error.

N. C. Abbott, for defendant in error.

NORVAL, J.

This was an application for mandamus to compel the respondent, as city clerk of the city of Lincoln, to receive and file in his office the certificate of nomination of relator as candidate by petition for the office of city attorney of said city, and to place relator's name upon the ballots to be used at the general election to be held in said city on April 5, 1898, as a candidate by petition for said office. A demurrer to the alternative writ was sustained upon the hearing in the court below, and the cause dismissed. The relator prosecutes error from that judgment.

This proceeding involves the validity of sections 6, 7, c. 14, Sess. Laws 1897, by which sections 13, 14, art. 1, c. 13a, Comp. St. 1895, were attempted to be amended. If the amendatory sections are valid, the city attorney of the city of Lincoln is an appointive, and not an elective, officer, and the decision below was right, but, if said amendatory sections are inoperative and void, a peremptory writ should issue. The provisions of said article 1, c. 13a, Comp. St. 1895, and the subsequent valid amendments thereof, constitute the charter of the city of Lincoln. The legislature of 1897 passed an act purporting to amend certain sections of said charter, among other sections 13, 14, 67, and 91 thereof (sections 6, 7, 24, 31, c. 14, Sess. Laws 1897). The original section 13 provided, inter alia, for the election biennially, by a plurality of votes, of a water commissioner, city attorney, and city engineer; that there should be in each city governed by the act an excise board, consisting of the mayor, who was constituted ex officio member and chairman thereof, and two members elected by the city at large for the term of two years, and also that there should be elected in each ward annually a councilman to serve for two years. Section 6 of the act of 1897, among other changes of the original section 13, so amended it as to eliminate therefrom all provisions for the election of water commissioner, city attorney, city engineer, and exciseman, and reduced the number of councilmen from each ward one-half. The original section 91 of said article 1, c. 13a, related to the duties of the excise board; but the legislature, by section 31, c. 14, Sess. Laws 1897, sought to amend said section 91 by ingrafting thereon a clause providing for the appointment by the governor of three fire and police commissioners for each city of the class to which the city of Lincoln belongs, and conferred upon them the power to license and regulate the liquor traffic within their respective cities, and to appoint a chief of the fire department. This amendatory section 31 was assailed in State v. Tibbets, 52 Neb. 228, 71 N. W. 990, as being unconstitutional, on the ground that the amendment was not covered by the title of the act, and was not germane to the subject-matter of the original section proposed to be changed. This contention was sustained by the court, and the amendatory section was declared to be inimical to the constitution and void.

In State v. Stewart, 52 Neb. 243, 71 N. W. 998, upon a review of the authorities bearing upon the question, it was ruled that the adoption by the legislature of the said amendment to section 91 was the consideration or inducement for the passage of said amended section 13, art. 1, c. 13a, and that the unconstitutionality of the former section vitiated the latter. In the opinion in that case it is said: “It is very evident that the said amendatory sections 13 and 91 must fall together, since the latter was the consideration for the passage of the former, and hence the original sections have not been superseded, but remained in full force.” With this conclusion we are still content. It follows that the original section 13 was in no respect modified or changed by section 6 of the act of 1897, and that the water commissioner, city attorney, and city engineer are not appointive, but elective, officers, unless the provision in said section 13 relating to their election was repealed or superseded by section 7, c. 14, Sess. Laws 1897, which purports to amend section 14, art. 1, c. 13a, Comp. St. 1895. This proposition will now receive attention.

Said section 14 authorizes the mayor, by and with the consent of the council, to appoint a chief of the fire department and certain other enumerated officers, and all other officers as were provided for in the act, and not elective, except the marshal and police. The right to appoint and remove the latter two was devolved upon the excise board. This section was sought to be amended by section 7 of the said act of 1897, so as to read as follows:

“Sec. 14. The mayor, with the consent of the majority of the council, shall appoint a city attorney, a water commissioner, a street and sidewalk commissioner, a city engineer, who shall be superintendent of public works, and perform the duties of the board of public works, and such other officers, whose appointment or election are not provided for in this act, that are necessary for the good government and management of the city, who shall hold their office for the term of two years unless sooner removed,” etc.

We are therefore confronted in this case with these conflicting statutory provisions. The original section 13, art. 1, c. 13a, provides for the election of a water commissioner, city attorney, and city engineer by the electors of the city at large, while the above-quoted amendatory section 14 requires that all of said officers shall be appointed by the mayor, with the consent and approval of the council. It is manifest the legislature never contemplated that a city of the first class should be supplied with, and be put to the expense of maintaining, two sets of said officers, one chosen by the electors, and the other bearing appointive commissions. That no such result was intended by the lawgivers is disclosed by the fact that at the same time the...