State ex rel. Watson v. Eskew

• Decision Date: 08 May 1902
• Citation: State ex rel. Watson v. Eskew, 64 Neb. 600, 90 N.W. 629 (Neb. 1902)
• Parties: STATE EX REL. WATSON, DEPUTY LABOR COMMISSIONER, v. ESKEW, ASSESSOR.
• Court: Nebraska Supreme Court

64 Neb. 600

90 N.W. 629

STATE EX REL. WATSON, DEPUTY LABOR COMMISSIONER,

v.ESKEW, ASSESSOR.

Supreme Court of Nebraska.

May 8, 1902.

Syllabus by the Court.

1. It is no objection to the validity of a statute imposing an additional duty on assessors that no special provision for their compensation is made.

2. The act of 1887 imposing the duties of labor commissioner on the governor of the state, and providing for the appointment of a special deputy to assist in discharging them, is not in violation of section 26, art. 5, of the state constitution.

3. The amendatory act of 1897 to sections 2066 and 2068 of Cobbey's Consolidated Statutes, requiring assessors to procure certain labor statistics, is germane to the provisions of the original act, and to the requirement of the original section 2066, that the deputy commissioner collect statistics, and is not in violation of section 2, art. 3, of the state constitution.

Commissioners' opinion. Department No. 1. Mandamus by the state, on the relation of Cyrus E. Watson, deputy labor commissioner, to compel Laurence N. Eskew, assessor, to furnish certain certificates. Writ granted.F. N. Prout, Atty. Gen., Norris Brown, Dep. Atty. Gen., W. B. Rose, Asst. Atty. Gen., for relator.

F. W. Boehmer, for respondent.

HASTINGS, C.

This is a mandamus to compel the collection of certain statistics by the assessor of Lancaster precinct of Lancaster county. By the act of April 13, 1897, entitled “An act to amend sections 2066 and 2068, and to create a new section to be numbered 2071, of Cobbey's Consolidated Statutes of Nebraska, 1893, and to repeal sections 2066 and 2068 as they now stand” (Laws 1897, p. 247), township and precinct assessors are required to enroll all persons over 21 years of age in their respective precincts, together with their occupation. Assessors are also required to return the products of farms or manufactories during the previous year, and the wages received by wage workers. The respondent refuses to perform this duty, for the reason that the act in question is, as he claims, unconstitutional and void. The grounds of this claim are that the original act of 1887 was and is unconstitutional and void because contrary to section 26 of article 5 of the state constitution, in that it creates an executive office, contrary to the inhibition of that article. It is further claimed that the amendatory act of 1897 is void for the reason that it not only attempts to amend a void act, but is not germane to the provisions sought to be amended, and hence its subject is not expressed in its title. It is further objected that the act of 1897 is unconstitutional, because no compensation is provided for the assessor's work.

This latter claim is not well founded. The compensation attached by law to an office is payment for all the services required of the incumbent. State v. Meserve, 58 Neb. 455, 78 N. W. 721. Moreover, the compensation provided for assessors is a per diem. The act of 1897 did not change the number of hours in a day, any more than it did the length of the hours. No reason is perceived why $3 per day is not just as adequate compensation for taking industrial statistics as it is for taking enumerations of property. If more days are required, the bill of the assessor will doubtless be that much larger. He would hardly need the encouragement of a special provision for compensation to induce him to claim it.

To the proposition that the act of 1887 established the office of labor commissioner in violation of section 26, art. 5, of the constitution, the cases of State v. Poynter (Neb.) 81 N. W. 431,State v. Burlington & M. R. R. Co., 60 Neb. 741, 84 N. W. 254, and State v. Fremont, E. & M. V. R. Co., 60 Neb. 749, 84 N. W. 257, are cited, together with Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct. 418, 42 L. Ed. 819, and 171 U. S. 361, 18 Sup. Ct. 888, 43 L. Ed. 197. The first of the above cases--State v. Poynter--holds chapter 47 of the Session Laws of 1899 to be unconstitutional for the reason that it provides, with reference to insurance companies, for a mode of taxation not in harmony with the state constitution. It holds that these provisions were the inducement to the passage of the rest of the bill, and therefore that the entire act falls with the provision relating to taxation. A somewhat careful examination of the opinion fails to disclose any suggestion that the act in question was void because providing for an insurance commissioner, and so in conflict with section 26 of article 5 of the state constitution. State v. Burlington & M. R. R. Co., above, finds that chapter 60 of the Laws of 1887 is void, because in the form in which it is finally enrolled and signed it was never passed by either branch of the legislature. The Elkhorn Case is simply a reaffirmance of the preceding one. The applicability of Smyth v. Ames to the case under consideration is not perceived. The only conclusion in it which seems to have relation to the matter in hand is the proposition that an unconstitutional act is void.

The form of the act of 1887, “To provide and continue a bureau of labor and industrial statistics and defining the duties of its officers” (Laws 1887, c. 47), was unquestionably adopted to avoid the provisions of the state constitution (section 26, art. 5) that no other executive state office should be continued or created, and that the duties devolving upon officers not provided for by the constitution should be performed by the officers therein created. The objection to the act is that it authorizes the governor, who is named as commissioner, to perform his duties, as set forth in the act, by deputy. It amounts to a contention that the authorization of deputies for the state officers named in the constitution is prohibited. The statement of the proposition seems to carry...