State ex rel. Thompson v. Majors

• Decision Date: 15 November 1909
• Docket Number: 16,167
• Citation: State ex rel. Thompson v. Majors, 85 Neb. 375, 123 N.W. 429 (Neb. 1909)
• Parties: STATE OF NEBRASKA, EX REL. WILLIAM T. THOMPSON, RELATOR, v. THOMAS J. MAJORS ET AL., RESPONDENTS
• Court: Nebraska Supreme Court

123 N.W. 429

85 Neb. 375

STATE OF NEBRASKA, EX REL. WILLIAM T. THOMPSON, RELATOR, v. THOMAS J. MAJORS ET AL., RESPONDENTS

No. 16,167

Supreme Court of Nebraska

November 15, 1909

ORIGINAL action in quo warranto to determine the rights of respondents to office as members of the board of education of state normal schools. Writ allowed.

Demurrer of the respondents overruled, and the writ of quo warranto issued.

William T. Thompson, Attorney General, and E. C. Calkins, for relator.

W. D Oldham and Clark & Allen, contra.

BARNES J. ROSE, J., concurring. REESE, C. J., concurring in part and dissenting in part. DEAN, J., dissenting.

OPINION

BARNES, J.

This is an action in quo warranto, commenced in this court, attacking the validity of house roll No. 286, passed by the legislative assembly of 1909, approved by the governor on the 1st day of April of that year, and to oust the respondents from exercising the powers, rights, duties and franchises of members of the board of education of the state normal schools. The information sets forth the law as it existed before the passage of the amendments contained in the act above described, the statutes as amended thereby, the passage and approval of the amendatory act, the appointment of the respondents by the governor thereunder, and their confirmation by the senate, and challenges the constitutionality of the amendatory act for the alleged reason that it was passed in violation of section 11, art. III of the constitution of this state. It also sets forth the ineligibility of the respondent Majors to become a member of the board, because at the time of his appointment he was a member of the legislature which passed the amendatory act in question, and concludes with the usual prayer of ouster against all of the respondents. A demurrer was filed to the information on two grounds: First, that the facts stated therein are not sufficient to constitute a cause of action; and, second, that two causes of action are improperly joined. The cause has been submitted on the demurrer, and, it being the desire of the relator to test the validity of the amendatory act, that question will be first considered.

It appears that in 1881 the legislature passed an act (laws 1881, ch. 78) entitled "An act to establish a system of public instruction." This entire act was by the compiler carried into the successive Compiled Statutes as chapter 79. In 1903 there was passed an act to establish junior normal schools, and provide for the maintenance of the same. Laws 1903, ch. 91. In preparing the Compiled Statutes of 1907, section 3 of the last mentioned act was inserted therein by the compiler and designated as section 22, subd. XIII, ch. 79 of that publication. Section 1, subd. XIII of the act first mentioned, before the adoption of the amendments in question, read as follows: "The state normal school shall be under the direction of a board of education, consisting of seven members, five of whom shall be appointed by the governor for a term of five years each, and the state treasurer and the state superintendent of public instruction shall by virtue of their office be members of said board: Provided, that the present appointed members of the board shall continue to hold their several offices till the limit of the time for which they were appointed. All vacancies occurring in the board shall be filled by appointment by the governor." Section 22 of the subdivision of the chapter above mentioned, as found in the Compiled Statutes of 1907, reads as follows: "The organization and management of said junior normal schools shall be under the jurisdiction of the state superintendent of public instruction, and he shall select the principals and instructors for said schools, and shall make and complete all other arrangements for the successful operation of said schools." By the amendment to section 1 there was created a board to be known as the "Normal Board of Education," which, it is declared, shall have control and direction of the normal education of the state, including normal schools and junior normal schools, which board shall succeed to, and take the place of, and exercise the powers of the former board of education. It is further provided that the normal board of education shall be composed of seven members, five of whom shall be appointed by the governor, by and with the advice and consent of the senate, and that the state treasurer and state superintendent of public instruction shall by virtue of their office be members of said board. The amendatory act also provides for the details of such appointments, and the time of the expiration of the term of office of each of the appointees, together with their qualifications, which are as follows: "The persons to be appointed as members of such board shall be such as are known to be men of standing, education and integrity. They shall be so selected that the board shall not be composed wholly of persons who are members of or affiliated with the same political party or organization. No person appointed as a member of such board by the governor shall hold any office under the government of the United States or any other state. No member of said board shall serve on or under any committee of any political party." Section 22, as amended, reads as follows: "The organization and management of said junior normal schools shall be under the jurisdiction and direction of the Normal Board of Education and said board shall select the principals and instructors for such schools and shall make and complete all other arrangements for the successful operation of said school." The title to the amendatory act reads as follows: "An act to amend sections 1 and 22 of subdivision 13, chapter 79 of the Compiled Statutes of Nebraska for 1907, and to repeal the said original sections as they now exist, and to provide for an emergency."

The relator's first contention is that the title to the bill is insufficient; that it violates the provisions of section 11, art. III of the constitution, which reads as follows: "Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken upon its final passage. 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." It is argued that, where the title to the bill is to amend a particular section of an existing law, no amendment is permissible which is not germane to the subject matter of the original section. In Richards v. State, 65 Neb. 808, 91 N.W. 878, it was said: "Whatever might have been originally made a part of a law may at any time be ingrafted upon it by legislation professing to be amendatory." It will be observed that the title to the original act is a comprehensive one, and is broad enough to include any provisions relating to the subject matter of education. It will scarcely be contended that this title was so restricted that the legislature could not have created a normal board of education thereunder, defined the qualifications of its members, and, if thought advisable, cover the whole ground of legislation relating to the general subject of education. Therefore, under the rule above quoted, it seems clear that the legislature could by amendment to section 1 change the name of the board, provide for the manner of its appointment, and define the qualifications of its members. Again, the word "germane" means pertinent to, or related to, and it seems self-evident that in an act to create a board of officers there could properly be included provisions touching their qualifications. If these are not related subjects, then we fail to comprehend the meaning of that term. If provisions descriptive of persons eligible for appointment to an office are not germane to an act creating such office, then, as was said by counsel on the argument, "an adjective is not related to a noun." We are therefore of opinion that this contention cannot be sustained.

It is further insisted that the amendatory act contains two subjects; that it changes the name of the board, and places the junior normals under its control. It appears that the original act of 1881, in which no mention is made of junior normal schools, was supplemented by the act of 1903, which provides for schools of that kind, and makes them a part of our system of public instruction; and it would therefore seem to be not only competent, but entirely proper, for the legislature to place them under the supervision of the normal board of education by an amendment to the proper section of that act, for the junior normal course of instruction, as defined by the statute, is one of the regular normal courses, to wit, the elementary course, and is therefore related to the general subject of normal education.

The relator also insists that the act in question, in effect amends 16 other sections of subdivision XIII, ch. 79, as found in the Compiled Statutes of 1907; that the sections so amended are not included therein, and said sections are not repealed, and it is therefore violative of the clause of the section of the constitution above quoted. In Farrell v. State, 54 N.J.L. 421, 24 A. 725, it is said: "The effect of an amendment of a section of the law is not to sever it from its relation to other sections of the law, but to give it operation in its new form as if it had been so drawn originally, treating the whole act as a harmonious entirety, with its several sections and parts mutually acting upon each other." Now, it is apparent that sections 2 to 16 do not require, nor have they suffered,...