State ex rel. Smyth, Attorney General v. Magney

• Decision Date: 04 November 1897
• Docket Number: 9284
• Citation: 72 N.W. 1006,52 Neb. 508
• Parties: STATE OF NEBRASKA, EX REL. CONSTANTINE J. SMYTH, ATTORNEY GENERAL, v. GEORGE A. MAGNEY, JOHN D. WARE, HARRY E. BURNAM, AND FREDERICK H. COSGROVE
• Court: Nebraska Supreme Court

72 N.W. 1006

52 Neb. 508

STATE OF NEBRASKA, EX REL. CONSTANTINE J. SMYTH, ATTORNEY GENERAL, v. GEORGE A. MAGNEY, JOHN D. WARE, HARRY E. BURNAM, AND FREDERICK H. COSGROVE

No. 9284

Supreme Court of Nebraska

November 4, 1897

ORIGINAL action in the nature of quo warranto by the state on relation of the attorney general to oust respondents from offices to which they were appointed under the provisions of chapter 25, Session Laws of 1897, entitled "An act to create a municipal court in cities of the metropolitan class and to fix and define the organization, powers, and jurisdiction of the same." Act held unconstitutional and writ of ouster awarded.

WRIT AWARDED.

C. J Smyth, Attorney General, and Ed P. Smith, Deputy Attorney General, for relator.

J. J Boucher, also for relator:

The act is unconstitutional because it contains two subjects, only one of which is expressed in the title. (Constitution, sec. 11, art. 3; Ives v. Norris, 13 Neb. 252; State v. County Commissioners, 6 Neb. 474.)

The statute violates the constitutional requirement that all courts therein enumerated shall be in existence at all times in every part of the state. (Constitution, secs. 1, 18, art. 6; Bull v. Conroe, 13 Wis. 233; State v. Goldstucker, 40 Wis. 124; Commonwealth v. Green, 58 Pa. 226; State v. Leonard, 86 Tenn. 485.)

The act is void in attempting to take away the civil jurisdiction of justices of the peace, of the county court, and part of the jurisdiction of the district court, in metropolitan cities only. (Constitution, sec. 19, art. 6; State v. Shropshire, 4 Neb. 411; Board of Commissioners v. First Nat. Bank, 40 P. [Colo.], 894; Tissier v. Rhein, 130 Ill. 110; State v. Berka, 20 Neb. 375; Frantz v. Fleitz, 85 Ill. 367; State v. Stark, 18 Fla. 255; Myers v. People, 67 Ill. 503; Foxworthy v. City of Hastings, 23 Neb. 772.)

The act is void in attempting to make the judges of the municipal court justices of the peace. (State v. Brunst, 26 Wis. 412; Hoke v. Henderson, 4 Dev. Law [N. Car.], 1; State v. Wrightson, 32 A. [N. J.], 820; People v. Raymond, 37 N.Y. 428; Warner v. People, 2 Denio [N. Y.], 272; Atkins v. Fraker, 32 Wis. 510; Waters v. Langdon, 40 Barb. [N. Y.], 408; Commonwealth v. Conyngham, 65 Pa. 76; Wenzler v. People, 58 N.Y. 516.)

The act is void in making the term of the judges three years instead of two. (Constitution, sec. 20, art. 6; State v. Thoman, 10 Kan. 192.)

The act is void in providing for the election of judges in the spring. All judicial officers must be elected in November. (Constitution, sec. 13, art. 16; State v. Glenn, 54 Tenn. 472; People v. Hurlbut, 24 Mich. 44; Speed v. Crawford, 3 Met. [Ky.], 207; Geraty v. Reid, 78 N.Y. 64; People v. Schiellein, 95 N.Y. 124; State v. Wrightson, 32 A. [N. J.], 820; People v. Raymond, 37 N.Y. 428; Warner v. People, 2 Denio [N. Y.], 272; Opinion of Judges, 117 Mass. 603; People v. Albertson, 55 N.Y. 57.)

The act is void in attempting to confer territorial jurisdiction coextensive with the county limits. (Constitution, sec. 1, art. 6; Rockwell v. Raymond, 5 N. Y. Supp., 642; Brandon v. Avery, 22 N.Y. 469; Waters v. Langdon, 40 Barb. [N. Y.], 408; Sinkler v. Terry, 108 N.Y. 1; Curtin v. Barton, 139 N.Y. 505; People v. Upson, 79 Hun [N. Y.], 87.)

The act is void in providing that the governor shall appoint the first judges, one for nine years, one for six years, and one for three years. (Constitution, sec. 21, art. 6; People v. Hurlbut, 24 Mich. 113; Evansville v. State, 118 Ind. 426; State v. Lansing, 46 Neb. 514.)

The act is void in providing that the city shall furnish offices, furniture, and supplies for the court. This imposes a tax on the municipality. (Constitution, secs. 1, 6, 7, art. 9; Dorgan v. Boston, 12 Allen [Mass. ], 223; Hammett v. City of Philadelphia, 65 Pa. 146; State v. Wheeler, 33 Neb. 563; City of San Francisco v. Liverpool Ins. Co., 74 Cal. 113.)

George A. Day, Will H. Thompson, and W. H. Herdman, for respondents:

The bill contains but one subject which is expressed in the title. (Van Horn v. State, 46 Neb. 62; State v. Page, 12 Neb. 386; Paxton & Hershey Irrigating Co. v. Farmers & Merchants Irrigation Co., 45 Neb. 884; State v. Bemis, 45 Neb. 724; Bonorden v. Kriz, 13 Neb. 121; Poffenbarger v. Smith, 27 Neb. 788; Hopkins v. Scott, 38 Neb. 661; In re Greer, 48 P. [Kan.], 950; Gran v. Houston, 45 Neb. 813.)

References in reply to relator's second point: Burke v. St. Paul R. Co., 28 N.W. [Minn.], 190; McDermont v. Dinnie, 69 N.W. [N. Dak.], 294; Commonwealth v. Green, 58 Pa. 226.

The act is not void as destroying the uniformity of practice of the courts. (State v. Berka, 20 Neb. 375; Wales v. Belcher, 3 Pick [Mass.], 508; Gilowsky v. Connolly, 55 Wis. 445; Wales v. Belcher, 3 Pick. [Mass.], 508; Ex parte McCollum, 1 Cow. [N. Y.], 567; People v. Garey, 6 Cow. [N. Y.], 650; Board of Commissioners v. First Nat. Bank, 40 P. [Colo. ], 894; City of Lincoln v. Grant, 38 Neb. 372; Smith v. Judge, 17 Cal. 548.)

References in reply to the contention that the act is void in attempting to make municipal judges justices of the peace: Gran v. Houston, 45 Neb. 813; State v. Moore, 45 Neb. 12; State v. Bartley, 39 Neb. 353.

The statute is not void in making the term of office of the municipal judges three years instead of two. (County of Douglas v. Timme, 32 Neb. 272; Mathews v. Commissioners, 34 Kan. 606.)

The test as to whether an officer is a state, county or city official seems to be determined by the territory in which the functions of the office are performed, as well as the territory in which the officer is elected. (In re Carpenter, 7 Barb. [N. Y.], 30; People v. Bennett, 54 Barb. [N. Y.], 480; Gertum v. Supervisors, 109 N.Y. 174; People v. Morrell, 21 Wend. [N. Y.], 563; People v. Henry, 62 Cal. 557; People v. Garey, 6 Cow. [N. Y.], 647.)

The argument that the act is void in attempting to confer territorial jurisdiction coextensive with the county cannot be sustained. (Magneau v. City of Fremont, 30 Neb. 852; Bair v. People's Bank, 27 Neb. 577; Gertum v. Board of Supervisors, 109 N.Y. 174; Glade v. White, 42 Neb. 338.)

The act should not be held void because it provides that the governor shall appoint the first judges. (County of Douglas v. Timme, 32 Neb. 272; State v. Lansing, 46 Neb. 530.)

An entire statute should not be declared unconstitutional because a separable portion thereof is invalid. (State v. Van Duyn, 24 Neb. 586; Messenger v. State, 25 Neb. 674; In re Groff, 21 Neb. 647; State v. Hardy, 7 Neb. 377.)

NORVAL, J., RAGAN, C. IRVINE, C., concurs in the result.

OPINION

NORVAL, J.

The validity of chapter 25, Session Laws, 1897, an act creating a municipal court in each city of the metropolitan class, is assailed by the relator upon nine distinct grounds, of which one alone will be noticed, namely, that section 8 of said act contravenes section 19, article 6, of the constitution of the state, since said section 8, in its scope, purpose, and effect, attempts to curtail or abridge the jurisdiction and powers of justices of the peace, county and district courts in each county in which a metropolitan city is located. The section of the constitution invoked by relator requires: "All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction, powers, proceedings, and practice of all courts of the same class or grade, so far as regulated by law and the force and effect of the proceedings, judgments, and decrees of such courts, severally, shall be uniform." (Constitution, art. 6, sec. 19.)

The writer fully concurs in the interpretation given the foregoing provision by RAGAN, C., in his separate opinion herein (post, p. 527), namely, that the fundamental law classifies the courts of the state, which classification the legislature is powerless to alter or change, and that any enactment which defines or regulates the jurisdiction and powers of the courts infringes the constitution if such law is not uniform as to all courts of the same grade or class; in other words, that the jurisdiction and powers conferred upon a justice, county, or district court of one county can be neither more nor less than that given the court of the same class in any other county of the state. The term "class," or "grade," as employed in the constitution, evidently refers to the different kinds of courts established in the state,--that is, all justice courts constitute one class or grade with the same jurisdiction, and that the county and district courts, respectively, belong to a separate class or grade, possessing uniform jurisdiction and powers. Indeed, the section of the constitution already quoted is too plain to admit of any other or different construction being placed upon it. The provisions thereof are mandatory and peremptory in their requirements, binding alike upon the legislature and the courts. Counsel for respondents insist with much earnestness and ability that said section of the constitution has not been violated by the enactment of section 8 of the municipal court law, the argument advanced in support thereof being founded upon the proposition that there is no constitutional inhibition or limitation upon the law-making body from excluding the residents of a certain prescribed district from the jurisdiction of the district, county, and justice courts in civil cases; and that neither the jurisdiction, powers, nor organization of any of said courts has been disturbed, or in the least affected, by the act under review. Consideration will now be given to this contention.

What is meant by the "jurisdiction" as employed in section 19, article 6, of the constitution? The Standard dictionary defines the word thus: "1. Lawful power or right to exercise official authority, whether executive, legislative,...