State ex rel. Taylor v. Hall
| Decision Date | 26 September 1935 |
| Docket Number | No. 29549.,29549. |
| Parties | STATE EX REL. TAYLOR, SUPERINTENDENT, v. HALL, STATE TREASURER. |
| Court | Nebraska Supreme Court |
STATE EX REL. TAYLOR, SUPERINTENDENT,
v.
HALL, STATE TREASURER.
No. 29549.
Supreme Court of Nebraska.
Sept. 26, 1935.
[262 N.W. 836]
1. By section 19, art. 3 of the Constitution of this state, the Legislature is prohibited from increasing or diminishing the salary of any public officer during his term of office, whether such salary is fixed by the Constitution or by the Legislature subsequent to the adoption thereof.
2. By section 18, art. 3 of the Constitution, the Legislature is prohibited from passing any act granting to an individual any special or exclusive privileges or immunity, and provides that, in all cases where a general law can be made applicable, no special law shall be enacted. Held, to prohibit class legislation which does not operate equally and uniformly upon all members of the class brought within its operation.
3. The Legislature may make a reasonable classification of persons, corporation and property for purposes of legislation concerning them, but the classification must rest upon real differences in situation and circumstances surrounding the members of the class, relative to the subject of the legislation, which render appropriate its enactment; and to be valid the law must operate uniformly and alike upon every member of the class so designated.
4. Subject to the rules of proper classification, public offices and their incumbents may be divided into classes for purposes of legislation concerning them.
5. By section 2, art. 5 of the Constitution, the judges of the Supreme Court, and judges of the district court, and by section 19, art. 4, members of the board of control, and by section 20, art. 4, members of the state railway commission, are constituted separate classes respectively; and all except members of the board of control are classified specifically as to salaries by section 3, art. 17.
6. If portions of an act are unconstitutional, and the remainder is so connected with the invalid portions that it cannot be upheld without doing violence to the legislative intent as a whole, or putting into effect a law which the Legislature would not have passed had its attention been called to the invalid parts, the entire act must fall.
7. Where invalid portions of an act constitute a material part of the inducement for the enactment, the entire act must fall.
8. Ordinarily, a party may not be heard to assert the unconstitutionality of an act upon grounds which do not injure him in his personal or property rights; but where an act deals with a single subject and the party complaining is treated the same as all the others with relation to that subject, the provisions
[262 N.W. 837]
may be so interdependent that each must be considered as the inducement for the other.
9. Where by virtue of an emergency clause an act is to take effect immediately upon its approval, and no part can operate at that date because of constitutional inhibitions, the emergency clause is invalid; and in the absence of any declaration that any portion of the act shall take effect at a different date, the act will not be given a prospective operation, contrary to its express provision, and the invalid clause will drag down the entire act.
10. In construing a statute, the court will consider the history of its passage, the amendments offered and the action taken thereon by the Senate and House, as well as all matters of common knowledge respecting the subject of legislation, for the purpose of arriving at the legislative intent.
11. Chapter 63, Laws 1933 (Comp. St. Supp. 1933, § 84-726), also known as Senate File No. 52, is unconstitutional in its entirety for the following reasons:
(1) As to all officers mentioned including relator, except the heads of departments, as violative of section 19, art. 3 of the Constitution, prohibiting the reduction or increase of salaries of public officers during their term of office.
(2) As to judges of the Supreme Court, judges of the district court, members of the board of control and state railway commission, as class legislation prohibited by section 18, art. 3 of the Constitution.
(3) As to the heads of departments, for failure to comply with section 14, art. 3 of the Constitution, respecting amendments.
(4) Section 2 of the act (emergency clause) is invalid as in violation of section 19, art. 3 of the Constitution, and constituted the inducement for the passage of the act.
Original mandamus proceeding by the State, on the relation of Charles W. Taylor, as Superintendent of Public Instruction of Nebraska, against George E. Hall, as Treasurer of the State of Nebraska.
Writ granted.
SHEPHERD, District Judge, dissenting.
Peterson & Devoe, of Lincoln, for relator.
Wm. H. Wright, Atty. Gen., and Harvey Johnsen, of Omaha, Sp. Counsel, for respondent.
Heard before GOSS, C. J., ROSE and EBERLY, JJ., and FITZGERALD, MESSMORE, REDICK, and SHEPHERD, District Judges.
REDICK, District Judge.
This is an original action instituted in this court by the state, on the relation of Charles W. Taylor, as superintendent of public instruction of Nebraska, against George E. Hall, as treasurer of the state of Nebraska, respondent, praying that a peremptory writ of mandamus issue to said respondent requiring him to countersign and pay a warrant dated April 1, 1935, regularly issued by the auditor of public accounts of the state of Nebraska on the state treasury in the sum of $1,250 for payment of the salary of the relator as superintendent of public instruction for services rendered by him in his official capacity for the quarter ending March 31, 1935. By the amended petition relator alleges that, at a general election in November, 1934, he was elected superintendent of public instruction for a term of four years commencing January 3, 1935, and duly qualified and entered upon his official duties; that respondent is state treasurer and, upon presentation of a warrant duly issued by the auditor of public accounts in the sum of $1,250 for payment of relator's salary for the quarter ending March 31, 1935, refused to countersign and pay the same solely because of and on account of the provisions of sections 84-726, Comp. St. Supp. 1933, known as Senate File No. 52, and found at page 297, Laws 1933 (chapter 63), a copy of which will be hereinafter set forth. The petition further alleges:
“That on May 1, 1933, the stated and purported effective date of said section 84-726, Comp. St. Supp. 1933, your relator as superintendent of public instruction and the governor, attorney general, secretary of state, auditor of public accounts, commissioner of public lands and buildings and the treasurer of the state of Nebraska were holding their offices, respectively, for and during a tenure or term which commenced prior to the stated and purported effective date of said act, to wit, May 1, 1933, and ending at midnight of January 2, 1935; that the chief justice, the judges of the supreme court, the judges of the district court, the members of the board of control and the members of the state railway commission were holding their offices, respectively, for and during a tenure or term which commenced prior to the stated and purported effective date of said act; the term or tenure of the chief justice ending in January, 1939, and the tenure or
[262 N.W. 838]
term of the judges of the supreme court ending, respectively, three in January of 1937, and three in January of 1935; the term or tenure of the judges of the district court ending in January, 1937; the term or tenure of the members of the state railway commission ending, respectively, one in 1939, one in 1937, and one in 1935; the term or tenure of the members of the board of control ending, respectively, one in July of 1939, one in July of 1937, and one in July of 1935.”
The petition further alleges that under section 3, art. 17 of the Constitution, relator's salary is, and has been at all times since the adoption of the Constitution in 1920, the sum of $5,000 per annum; and sets forth a number of grounds upon which it is claimed that said section 84-726, Comp. St. Supp. 1933, which will be hereinafter set out, is unconstitutional, and prays for a peremptory writ of mandamus.
Respondent answered and admitted the material allegations of the petition, and admits that he refused to countersign and pay said warrant for the sole reason that by section 84-726, for a term of four years commencing January 3, 1935, relator's salary was fixed at $3,400 per annum, whereby he was only entitled to the sum of $850, which respondent has always been ready to pay.
Relator filed a motion for judgment on the pleadings and it was stipulated that the cause be submitted to the court on said motion, the only question involved being the constitutionality of said section 84-726.
We set out in full the act under attack:
“An Act relating to fees and salaries; to provide a schedule of salaries for certain state officers mentioned in the Constitution; and the heads of various departments mentioned in the laws of Nebraska, and to declare an emergency.
Be it Enacted by the People of the State of Nebraska:
Section 1. It is hereby provided by law that salaries as follows shall be paid to certain state officers mentioned in the Constitution: Governor $6000 per annum; Chief Justice and Judges of the Supreme Court, each $5200 per annum; Tax Commissioner, $4000 per annum; Judges of the District Court, and Attorney General $4000 per annum; Secretary of State, Auditor of Public Accounts, Commissioner of Public Lands and Buildings, Treasurer, Superintendent of Public Instruction, each $3400 per annum; Members of the Board of Control, each $3200 per annum; Members of the State Railway Commission, each $3400 per annum; Director of the Department of Agriculture and Inspection, $3800 per annum; Commissioner of Labor, $3000 per annum; Director of Health, $3600 per annum; State Engineer, $4800 per annum; Director of Banking, $4500 per annum; Director of Insurance, $3600 per annum.
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