State ex rel. Smyth v. Moores

• Citation: 76 N.W. 175,55 Neb. 480
• Parties: STATE EX REL. SMYTH, ATTY. GEN., v. MOORES, MAYOR, ET AL.
• Decision Date: 23 June 1898
• Court: Supreme Court of Nebraska

55 Neb. 480

76 N.W. 175

STATE EX REL. SMYTH, ATTY. GEN.,

v.MOORES, MAYOR, ET AL.

Supreme Court of Nebraska.

June 23, 1898.

Syllabus by the Court.

1. To justify the courts in declaring a statute invalid, it is not essential that it should contravene some express provision of the constitution. If the act is inhibited by the general scope and purpose of the fundamental law, it is invalid, as though forbidden by the letter of that instrument.

2. The bill of rights of our constitution is not an enumeration of all the powers reserved to the people of this state. A statute is unconstitutional and void which is repugnant to the rights, expressed or implied, retained by the people.

3. The right of local self-government in cities and towns (i. e. the power of the citizens thereof to govern themselves, as to matters purely local in their nature, through officers of their own selection) existed in this state at the time the present constitution was framed, and was not surrendered upon the adoption of that instrument, but is vested in the people of the respective municipalities, and the legislature is powerless to take it away.

4. The right to maintain a fire department in a city or town is one of the rights vested in the people of municipalities, and is to be exercised by them without legislative interference, except to the extent the lawmaking body may prescribe rules to aid the people of the municipalities in the exercise of such right.

5. The act of the legislature of 1897 (Laws 1897, c. 10, Comp. St. c. 12a), in so far as it assumesto confer authority upon the governor to appoint fire and police commissioners in cities of the metropolitan class, is void, as being an unlawful attempt to deprive the people of such cities of the right of local self-government.

6. State v. Seavey, 35 N. W. 228, 22 Neb. 455, overruled.

Application for quo warranto by the state, on the relation of Constantine J. Smyth, attorney general, against Frank E. Moores, mayor of Omaha, and the common council of Omaha, and J. H. Peabody and others, members of the board of fire and police commissioners of the city, under appointment from the governor of the state, to try title to office. Peter W. Birkhouser and others, appointees of the mayor to the board, intervene. Heard on demurrer of the attorney general to the answer of the respondents, and to the answer and cross application of the interveners, and on demurrer of the interveners to the answer of the governor's appointees. Demurrers of the attorney general overruled; of the interveners, sustained.

Sullivan, J., and Ryan and Irvine, CC., dissenting.

Constantine J. Smyth, Atty. Gen., pro se. W. J. Connell, M. B. Reese, E. R. Duffie, J. J. Dunn, Geo. A. Day, and Ed. P. Smith, for respondents.

McCoy & Olmsted, for interveners.

NORVAL, J., and RAGAN, C.

The legislature of this state at its session held in 1897 passed an act incorporating metropolitan cities, and defining, prescribing, and regulating their duties, powers, and government. Laws 1897, c. 10, Comp. St. c. 12a. Sections 166 and 167 of said act follow:

“Sec. 166. In each city of the metropolitan class, there shall be a board of fire and police commissioners, to consist of the mayor, who shall be ex officio chairman of the board, and four electors of the city who shall be appointed by the governor.

Sec. 167. Immediately on the taking effect of this act, the governor shall appoint for each city governed by this act four commissioners, not more than two of whom shall be of the same political faith or party allegiance, one of whom shall be designated to serve until the first Monday of April, 1898, and one to serve until the first Monday of April, 1899, and one to serve until the first Monday of April, 1900, and one to serve until the first Monday of April, 1901, and on the last Tuesday in March in 1898, and on the same day in each year thereafter the governor shall appoint one commissioner in each city governed by this act, to take the place of the commissioner whose term of office expires on the first Monday in April following such appointment, and those so appointed to succeed others shall serve for the term of four years following the first Monday in April after their appointment, except where appointments are made to fill vacancies in which cases those appointed shall serve the remainder of term of the persons whose vacancies they are appointed to fill. Wherever a vacancy shall occur in any board of fire and police commissioners either by death, resignation, removal from the city or any other cause, the governor shall appoint a commissioner to fill such vacancy.”

Section 168 provides, inter alia: “No person shall be appointed a police commissioner who is engaged in the sale of malt, spirituous or vinous liquors, or who is engaged in the business of dealing in tobacco or articles manufactured therefrom, or who is an agent for any fire insurance company or companies or interested therein, or in the business of soliciting fire insurance, or who shall have been engaged in any of such callings or business within one year previous to the date of appointment.” Section 169 confers upon such board “all powers and duties connected with and incident to the appointment, removal, government and discipline of the officers and members of the fire and police departments of the city.” The board is empowered and required to appoint a chief of the fire department, and such other officers of said department as may be deemed necessary, and to remove such officers, or any of them, whenever the board shall consider and declare such removal necessary for the proper management or discipline, or for the more effective working or service, of said department. The board is given power to employ all necessary firemen and assistants, and it is made its duty to appoint a chief of police, police matron, and such other officers and policemen as may be necessary, to the extent that funds may be provided therefor by the mayor and council. All officers and police of the police department are subject to removal by the board of fire and police commissioners, under such rules and regulations as may be adopted by said board, whenever such removal becomes necessary for the proper management or discipline, or for the more effective working or service, of the police department.

The respondents J. H. Peabody, D. D. Gregory, William C. Bullard, and R. E. L. Herdman were appointed by the governor, under the provisions of said sections 166 and 167, as members of the board of fire and police commissioners for the city of Omaha; and the respondent Frank E. Moores is the mayor of said city, and by virtue of said act is made a member of said board, and its chairman. The mayor and a majority of the councilmen of the city of Omaha, having assumed to exercise, control, and manage the fire and police departments of said city to the exclusion of any and all acts of the board appointed by the governor, an application by the state, on the relation of the attorney general, was filed in this court for a writ of quo warranto against the respondents named above, and the members of the city council of Omaha, to test the constitutionality of the sections of the said act of 1897 which attempt to conferupon the governor the power to appoint four members of the board of fire and police commissioners for each city of the metropolitan class. To this application the appointees of the executive answered, setting up their respective appointments as members of said board, and their subsequent qualifications; and the mayor and council also filed an answer alleging their right, power, and authority to provide for the appointment of the members of the board of fire and police commissioners of said city of Omaha, to exercise, control, and manage the fire and police departments of said city, and control and direct in all respects said departments, and that Peter W. Birkhouser, Charles J. Karbach, Mathew H. Collins, and Victor H. Coffman have been, under and in pursuance of an ordinance of the city of Omaha, appointed by the mayor of said city, and confirmed by a majority of the council thereof, as members of said board of fire and police commissioners of said city, and have qualified as such. The said appointees of the mayor and council have intervened, and filed an answer and cross application of information, setting up their respective claims to the office in question, and that the said act of 1897 is unconstitutional and void. The attorney general has filed a general demurrer to the answer of the respondents, as well as to the answer and cross application of the interveners, and the interveners have demurred to the answer of the governor's appointees. The cause has been submitted for judgment on said demurrers.

The validity of the law is assailed on the ground that it is violative of the inherent right of local self-government, by depriving the people of the cities of the metropolitan class from choosing their own officers. There is no express provision in the constitution of this state which gives municipal corporations the power to select their officers, or to manage their own affairs; nor is there any clause to be found in that instrument which in express terms inhibits the legislature from conferring upon the governor the power to appoint municipal officers to manage and control purely local affairs. If this act is invalid on the ground that the appointing power was placed in the hands of the governor, it is because the law is repugnant to some rights retained by the people at the time of the adoption of the organic law. It is true, the state constitution is not a grant of legislative power, and the lawmaking body may legislate upon any subject not inhibited by the fundamental law; and it has been so held in Magneau v. City of Fremont, 30 Neb. 843, 47 N. W. 280, and numerous other decisions of this court. But it by no means follows from this that the legislature is free to pass laws upon...