State v. Duyne

• Decision Date: 03 October 1888
• Citation: 39 N.W. 612,24 Neb. 586
• Parties: THE STATE OF NEBRASKA, EX REL. JOHN SINGLETON, v. JOHN N. VAN DUYN, COUNTY CLERK OF SALINE COUNTY
• Court: Nebraska Supreme Court

39 N.W. 612

24 Neb. 586

THE STATE OF NEBRASKA, EX REL. JOHN SINGLETON, v. JOHN N. VAN DUYN, COUNTY CLERK OF SALINE COUNTY

Supreme Court of Nebraska

October 3, 1888

ORIGINAL application for mandamus.

Demurrer to the petition sustained, the writ denied, and action dismissed.

Abbott & Abbott (E. A. Gilbert and N. V. Harlan with them), for relator.

George H. Hastings and F. I. Foss (N. K. Griggs and J. R. Webster with them), for respondent.

OPINION

MAXWELL, J.

This is an application for a mandamus to compel the defendant to post notices of the election for senator and representatives in Saline county under the act of 1881, instead of the apportionment law of 1887, upon the ground that the latter act is void, "for the reason that the same was not regularly passed by both houses of the legislature, in the manner provided therefor by sections 10 and 11, article three of the state constitution, in this: That the bill for said act originated in the house of representatives, and was passed by said house on the twenty-second day of March, 1887 and by it sent to the senate on the same day for its action thereon; that said bill, as so passed by the said house, among other things, made the ninth representative district of said state to consist of the counties of Douglas and Sarpy, and to be entitled to one representative; that the senate, among other things, so changed said bill by amendment as to change said representative district No. nine to No. eight, and by striking out of the same the words 'and Douglas,' thereby making the eighth representative district to consist of the county of Sarpy alone, and to be entitled to one representative; that the said bill so amended was returned to the house of representatives for its concurrence on the 30th day of March, 1887; that said house refused to concur in said amendments, but on that same day appointed a committee to confer with a like committee from the senate, as a joint committee of conference, to which said bill was referred; that said joint committee considered said bill and the senate amendments thereto, and reported the result of said consideration to the respective houses on the 31st day of March, 1887; that in said report given to the house of representatives was the following, among other amendments, to-wit: 'That representative district No. nine be amended by striking out the words "Douglas and Sarpy," and inserting the words "Cass and Otoe." District No. nine shall consist of the county of Sarpy, and be entitled to one representative,' which said report was, on the same day, adopted by the house of representatives, which was the final action taken on said bill, by said house. The report of said joint conference committee, sent to the senate, was the same as that sent to the house of representatives, except that the words 'district No. nine shall consist of the county of Sarpy, and be entitled to one representative,' was wholly omitted from said report, which said report was then and there adopted by the senate, and was the final action taken by the senate on said bill; whereby the county of Sarpy was entirely excluded from representation in the house of representatives, by said bill, as it was finally acted upon by the senate; and the bill passed, concurred in, and final action taken upon by the house of representatives, certified by the secretary of state, and published as the act of 1887, was never acted upon by the senate, as is required by the constitution; and thereby became and was and is void and of non-effect.

"And the plaintiff alleges that he is informed and believes that the words 'district No. nine shall consist of the county of Sarpy, and be entitled to one representative,' was not inserted in said committee's house report by the action or order of said committee, but was attached thereto by some member of said committee, after said report had been completed and signed by said committee. All of which actings and doings of said house, senate, and joint committee will fully appear by inspection of their proceedings.

"And the plaintiff alleges that, by reason of the premises, the apportionment act of February 28, 1881, being chapter five of the Compiled Statutes of 1883, is in full force and effect; that by said last named act said Saline county is entitled to elect three members for the house of representatives instead of two, as is provided by the pretended act of 1887."

Certified copies of the Journal of each house, so far as they relate to the question presented, are attached to and made a part of the petition.

The defendant demurred generally to the petition.

As the case is one affecting all portions of the state, the argument was postponed one week in order to give all parties interested an opportunity to be heard. The case is now submitted on the demurrer.

Section 2, article 3 of the constitution of 1875, declares that, "The legislature shall provide by law for an enumeration of the inhabitants of the state in the year eighteen hundred and eighty-five, and every ten years thereafter; and at its first regular session after each enumeration, and also after each enumeration made by the authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed, and soldiers and officers of the United States army and navy."

Section 3 also provides that, "The house of representatives shall consist of eighty-four members, and the senate shall consist of thirty members until the year eighteen hundred and eighty, after which time the number of members of each house shall be regulated by law; but the number of representatives shall never exceed one hundred nor that of senators thirty-three."

In 1881 the legislature increased the members of the senate to thirty-three, and of the house to one hundred.

The evident design of the framers of the constitution, in requiring an apportionment of senators and representatives to be made by the legislature at its next regular session after each census taken by the United States and the decennial census intervening taken by the state, and at no other time was to secure a fair apportionment based upon the population of the state. In a new...