State ex rel. Wheeler v. Stuht

• Decision Date: 26 June 1897
• Docket Number: 9240
• Parties: STATE OF NEBRASKA, EX REL. D. H. WHEELER ET AL., v. ERNEST STUHT ET AL
• Court: Nebraska Supreme Court

71 N.W. 941

52 Neb. 209

STATE OF NEBRASKA, EX REL. D. H. WHEELER ET AL., v. ERNEST STUHT ET AL

No. 9240

Supreme Court of Nebraska

June 26, 1897

ORIGINAL action in the nature of quo warranto to oust respondents from the offices of councilmen of the city of Omaha, and to instate relators therein. Writ denied.

Demurrer overruled, writ denied, and action dismissed.

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

Relators' first position is that the office of police judge is a constitutional office, made elective, and for a fixed term of two years; that the provisions of the new charter, approved March 15, 1897, shorten the term of the incumbent and undertake to establish, instead of the constitutional term, a term of three years; that the act, in so far as it relates to the election and term of office and salary of police judge is unconstitutional and void; and that these invalid provisions are so interwoven with the other parts of the act and form so essential a part of the whole scheme of legislation, that the entire act must be declared invalid. (Constitution, secs. 1, 18, 20, art. 6; sec. 16, art. 3; Wenzler v. People, 58 N.Y. 516; McDermont v. Dinnie, 69 N.W. [N. Dak.], 294; State v. Thoman, 10 Kan. 197; Martin v. Tyler, 60 N.W. [N. Dak.], 392; Scagit County v. Stiles, 10 Wash. , 388; State v. Perry County, 5 Ohio St. 497; Jones v. Robbins, 8 Gray [Mass.], 329; Warren v. Mayor, 2 Gray [Mass.], 84; Trumble v. Trumble, 37 Neb. 340; State v. Moore, 48 Neb. 870; Poindexter v. Greenhow, 114 U.S. 270; Trade Marks Case, 100 U.S. 82; Copeland v. City of St. Joe, 126 Mo. 417; Slausen v. City of Racine, 13 Wis. 398; Commonwealth v. Potts, 79 Pa. 164; Meshmeier v. State, 11 Ind. 484; Allen v. Louisiana, 103 U.S. 80; Eckhart v. State, 5 W. Va., 515; Johnson v. State, 35 A. [N. J.], 787; Lathrop v. Mills, 19 Cal. 513; State v. Sinks, 42 Ohio St. 345; State v. Blend, 121 Ind. 514; Dells v. Kennedy, 49 Wis. 555; Black v. Trower, 79 Va. 123; People v. Porter, 90 N.Y. 68.)

The act in question is special, and therefore unconstitutional. (Clegg v. School District, 8 Neb. 178; Dundy v. Richardson County, 8 Neb. 518; State v. Pugh, 43 Ohio St. 98; State v. City of Cincinnati, 20 Ohio St. 18; State v. Constantine, 42 Ohio St. 437; State v. Mitchell, 31 Ohio St. 607; Devine v. County Commissioners, 84 Ill. 590; State v. Smith, 26 N.E. [O.], 1069; Commonwealth v. Patton, 88 Pa. 258; State v. Hammer, 42 N.J.L. 435; State v. Herrmann, 75 Mo. 340; City of Topeka v. Gillett, 32 Kan. 431.)

The act is broader than the title, and includes subjects not within the title. It is therefore invalid. (Blair v. State, 90 Ga. 326; City of Wahoo v. Dickinson, 23 Neb. 426; Village of Hartington v. Luge, 33 Neb. 623; City of Seward v. Conroy, 33 Neb. 430; Gottschalk v. Becher, 32 Neb. 653; County Commissioners v. Hiner, 54 Kan. 334; Cherokee County v. Chew, 44 Kan. 162; Finnegan v. Sale, 54 Kan. 420; State v. Deets, 54 Kan. 504; Wheeler v. Chubbuck, 16 Ill. 362; Supervisors v. Keady, 34 Ill. 293.)

The charter seeks to clothe the city council with judicial power. It seeks to give the council, or a committee thereof, all the power of courts of justice to compel the giving of testimony. This is a violation of the constitution. (Langenberg v. Decker, 31 N.E. [Ind.], 190; Ex parte Doll, 7 Phila. [Pa.], 595; Kilbourn v. Thompson, 103 U.S. 168; In re Mason, 43 F. 510.)

The act contravenes the 14th amendment to the constitution of the United States, which declares: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction equal protection of the laws." (Missouri v. Lewis, 101 U.S. 22; People v. Hurlbut, 24 Mich. 93; Ward v. Maryland, 12 Wall. [U. S.], 418; Anderton v. City of Milwaukee, 52 N.W. [Wis], 96; Frorer v. People, 31 N.E. [Ill.], 395; State v. Seavey, 22 Neb. 467; Low v. Rees Printing Co., 41 Neb. 137.)

W. J. Connell, contra:

Where a statute contains provisions which are invalid or unconstitutional, if the valid and invalid portions are not so connected as to be incapable of separation, and the valid part is a complete act and not dependent upon the part that is void, the latter alone will be disregarded and the remainder upheld. (Bailey v. State, 30 Neb. 855; Singer Mfg. Co. v. Fleming, 39 Neb. 685; State v. Moore, 48 Neb. 870; State v. Hardy, 7 Neb. 377; State v. Board of Commissioners of Lancaster County, 7 Neb. 85; State v. Hurds 19 Neb. 316; In re Groff, 21 Neb. 647; State v. Van Duyn, 24 Neb. 586; Muldoon v. Levi, 25 Neb. 457; Messenger v. State, 25 Neb. 674; Magneau v. Fremont, 30 Neb. 843; State v. Stout, 33 A. [N. J.], 858; Lewis v. Lewelling, 36 P. [Kan.], 351; State v. Bailey, 42 P. [Kan.], 374; Dunn v. City of Great Falls, 31 P. [Mont.], 1017; Irvin v. Gregory, 13 S.E. [Ga.], 120; City of St. Paul v. Chicago, M. & St. P. R. Co., 68 N.W. [Minn.], 458; People v. Perry, 21 P. [Cal.], 423; State v. Stout, 33 A. [N. J.], 858; McPherson v. Blacker, 13 S.Ct. 3; Henderson v. State, 36 N.E. [Ind.], 257; State v. Blend, 23 N.E. [Ind.], 511; Hale v. McGettigan, 45 P. [Cal.], 1049; City of Westport v. McGee, 30 S.W. [Mo.], 523.)

The relators have no standing in court upon the ground of special legislation. If the present councilmen were unconstitutionally elected, so were the relators. If the new charter is unconstitutional the old one was. (19 Am. & Eng. Ency. Law, 677; Maxwell, Pleading and Practice, 724; State v. Stein, 13 Neb. 529.)

The act is not special legislation. (State v. Graham, 16 Neb. 74; State v. Berka, 20 Neb. 375; McClay v. City of Lincoln, 32 Neb. 412; State v. Robinson, 35 Neb. 402; Hunzinger v. State, 39 Neb. 653; State v. Hunter, 17 P. [Kan.], 184; State v. Bemis, 45 Neb. 735.)

The act contains but one subject, and the same is clearly expressed in its title. (City of Omaha v. City of South Omaha, 31 Neb. 379; State v. Bemis, 45 Neb. 724.)

The act takes effect at one time. (Hopkins v. Scott, 38 Neb. 661; State v. Newbold, 42 P. [Kan.], 345.)

HARRISON, J. NORVAL, J., had no part in the final determination of this case.

OPINION

The opinion contains a statement of the case.

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 Session Laws, 1887, ch. 10; Compiled Statutes, 1895, note ch. 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, regulating, and prescribing their duties, powers, and government,' approved March 30, 1887, and all acts amendatory thereof, being chapter 12a of the seventh edition of the Compiled Statutes of the state of Nebraska (edition of 1895), entitled 'Cities of the Metropolitan Class'" (Session Laws, 1897, ch. 10, p. 54); 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 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:

"Section 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...