State ex rel. Wheeler v. Stuht

• Decision Date: 26 June 1897
• Citation: 52 Neb. 209,71 N.W. 941
• Parties: STATE EX REL. WHEELER ET AL. v. STUHT ET AL.
• Court: Nebraska Supreme Court

52 Neb. 209

71 N.W. 941

STATE EX REL. WHEELER ET AL.

v.STUHT ET AL.

Supreme Court of Nebraska.

June 26, 1897.

Syllabus by the Court.

1. If a portion of a legislative act is unconstitutional, and it can be separated from other portions of the act, and the latter enforced independent of the former, and it further appears that the unconstitutional part did not constitute such an inducement to the passage of the other parts of the law that they would not have been passed without it, the former may be rejected and the latter upheld.

2. The same rule obtains in relation to parts of the sections of a statute, and that which is unconstitutional may, under the operation of the foregoing rule, be rejected from a section or sections of a law, and what remains be sustained, unless they are inseparably connected in substance.

3. A legislature may create a municipality without providing in all particulars for its government, but that this has been done by a legislature is not alone sufficient to render such law of creation invalid. It will be presumed that a subsequent legislature will perform its duty and will remedy the defect.

4. In determining whether an act of the legislature is general or special in its character, the substance alone should be considered. Forms or particular words or turns of expression should be disregarded.

5. “The classification of the cities of the state into classes and subclasses, and the conferring upon them of corporate powers, by acts of the legislature of a general nature, yet the provisions of which are applicable to but one of such classes or subclasses, is not repugnant to any provision of the constitution.” State v. Graham, 19 N. W. 470, 16 Neb. 74, approved and followed.

6. If the provisions of a law establishing a class of cities on the basis of population are such that other cities may in the future, without additional legislation, enter the specified class, the law is general.

7. A demurrer searches the entire record, and is applicable and fatal to the first defective pleading.

8. Where relators in an action of quo warranto, to oust respondents from certain offices and obtain possession thereof, base their right to the relief on the unconstitutionality of a statute under which respondents claim to occupy the offices, and the arguments and reasons for declaring such law unconstitutional would be equally forcible and effective as against the law under which relators assert title to the offices, the relators have no standing, and cannot prevail in the litigation.

9. A law is not open to the criticism that separate provisions of it take effect at different dates, if, as an entirety, it becomes of effect and operative on a fixed date, notwithstanding, as to some persons or matters affected by it, the law is of full operation immediately upon its passing into effect, and as to others its operation is not so full and complete until in the future, or the happening of some stated contingency.

10. “The provision of section 11, art. 3, of the constitution, viz. ‘No bill shall contain more than one subject, and the same shall be clearly expressed in the title,’ was intended to prevent surreptitious legislation, and not to prohibit comprehensive titles. The test is not whether the title chosen by the legislature is the most appropriate, but whether it fairly indicates the scope and purpose of the act.” State v. Bemis, 64 N. W. 348, 45 Neb. 724, approved and followed.

11. Where the relief sought rests on the establishment of the unconstitutionality of an act of the legislature, objections to detached portions of the act, which, if declared unconstitutional, would not affect the validity of the other portions and remainder of the act, raise questions which are but collateral to the main issue, and which are not necessarily for discussion or definite determination.

Information in the nature of quo warranto by the state, on the relation of D. H. Wheeler and others, against Earnest Stuht and others. Writ denied.

Wright & Thomas, J. B. Sheean, and A. S. Churchill, for relators.

W. J. Connell, for respondents.

HARRISON, J.

In this, an original action in this court, an information in the nature of a quo warranto was filed by the relators, in which it was averred that they had been elected and assumed the duties of councilmen in and for the city of Omaha under and by virtue of the provisions of the law then in force, which was an act entitled “An act incorporating metropolitan cities, and defining, regulating and prescribing their duties, powers, and government,” which was passed and became of effect March 30, 1887 (see Sess. Laws 1887, c. 10; Comp. St. 1895, note c. 12a); that their offices were being and had been unlawfully invaded and usurped, the powers and duties performed, and the emoluments and privileges thereof enjoyed, by the respondents. The relief sought is the ouster of the respondents, and the establishment of the title of relators to the offices involved. The respondents answered, pleading the passage by the legislature of 1897 of an act entitled “An act incorporating metropolitan cities and defining, prescribing and regulating their duties, powers and government, and to repeal an act entitled ‘An act incorporating metropolitan cities, and defining, prescribing and regulating their duties, powers and duties, powers and government,’ approved March 30, 1887, and all acts amendatory thereof, being chapter 12a of the 7th edition of the Compiled Statutes of the State of Nebraska [Ed. 1895], entitled ‘Cities of the Metropolitan Class' ”; that the act of 1897 was approved March 15, 1897; that, at an election held pursuant to the provisions and requirements of the act of 1897, the respondents were elected as councilmen in and for the city of Omaha, and had taken possession of the offices, and were performing the duties thereof. There were other and further allegations in the answer which put in issue the rights of relators to the offices which they claimed. To the answer a general demurrer was interposed, the general or broad question presented and discussed under the issue thus made being the constitutionality of the act of 1897; the rights of relators to the offices being predicated on its unconstitutionality and the continued existence of the act of 1887, and the rights of respondents to the offices being based on the validity of the act of 1897.

The first point discussed by counsel is in relation to the police judge, and the provisions of the new act fixing the time of the election of said officer and the duration of his term of office. The section of the act of 1897 to which our attention is particularly directed in this connection is as follows: “Sec. 13. The first city election in all cities governed by this act shall be held on the sixth Tuesday after this act goes into effect, and the next general city election on the first Tuesday in March, A. D. 1900, and all succeeding general city elections every three years thereafter. Such elections shall be held at the same place as was the general election for state and county officials last preceding such city election. The officers to be elected at such election shall be a mayor, police judge, city clerk, treasurer, comptroller, tax commissioner and nine (9) councilmen; they shall each and all be elected by a plurality of all votes cast at said election for such officials respectively, and shall, when properly qualified, hold their offices for the terms herein designated, viz. the terms of the officers first elected shall commence on the third Monday succeeding their election, and they shall hold office until the third Monday in March, A. D. 1900, and until their successors shall be elected and qualified, and all subsequently elected officers shall hold office for the term of three years, commencing on the third Monday succeeding their election, and shall hold their office until their successors shall be elected and qualified, except as in this act otherwise provided.” It will be noticed that by the provisions of the section quoted the terms of office of the police judge after the first one are fixed each at three years. Section 1 of article 6 of the constitution is as follows: “The judicial power of the state shall be vested in a supreme court, district courts, county courts, justices of the peace, police magistrates, and in such other courts inferior to the district courts as may be created by law for cities and incorporated towns.” By section 4, the terms of office of judges of the supreme court are fixed at six years; by section 10, terms of judges of the district courts at four years; and by section 15, county judges' terms at two years. Section 20 provides: “All officers provided for in this article shall hold their offices until their successors shall be qualified, and they shall respectively reside in the district, county or precinct for which they shall be elected or appointed. The terms of offices of all such officers, when not otherwise prescribed in this article, shall be two years. All officers, when not otherwise provided for in this article, shall perform such duties and receive such compensation as may be provided by law.” From which it is disclosed that police magistrates are constitutional officers, with a term of office prescribed by that instrument at two years. The term as fixed by the constitution cannot be extended by legislative act. Neither can the term of such an officer be shortened by legislative enactment. Under the act or charter of 1887, which the act of 1897 by its terms repealed, there had been elected a police judge, whose term of office fixed by the constitution will expire in January, 1898. This term could not be abridged by a statute. Hence the act of 1897, to the extent it purports to affect such term, is invalid. Also, such portion of it as makes the term of office of a police judge three years, instead of the constitutional term of two years, is of no effect. It being determined that...