State v. Scott

• Decision Date: 22 September 1904
• Citation: 100 N.W. 812,70 Neb. 685
• Parties: STATE v. SCOTT.
• Court: Nebraska Supreme Court

70 Neb. 685

100 N.W. 812

STATE

v.SCOTT.

Supreme Court of Nebraska.

Sept. 22, 1904.

Syllabus by the Court.

1. An act of the Legislature which regulates a county office, and which by its terms limits its operation to counties having a population of 50,000 “according to the census of 1900,” is local and special in its application, since it can never apply to any other counties than the two which were in the class at the time of the passage of the act.

2. Chapter 32, p. 280, Sess. Laws 1903, entitled, “An act to constitute the county surveyor ex officio county engineer in addition to his powers and duties of county surveyor,” etc., is in violation of section 15, art. 3, of the Constitution, which prohibits the passage of local or special laws regulating county or township offices, and further provides that in all cases where a general law can be made applicable no special law shall be enacted, and is void.

On rehearing. For former opinion, see 97 N. W. 1021. Case dismissed.F. N. Prout, Atty. Gen., Norris Brown, Dep. Atty. Gen., and J. B. Strode, for the State.

A. C. Ricketts, for respondent.

LETTON, C.

At the former hearing of this case, reported in 97 N. W. 1021, we held that an information in the nature of quo warranto would not lie in the case. At that time our attention was mainly directed to the question of practice as to whether or not the remedy of quo warranto was a proper one to be applied under the circumstances. At this hearing, however, our attention has mainly been called to the question whether or not the law of 1903 (chapter 32, p. 280, Sess. Laws 1903, § 9224, Cobbey's Ann. St. 1903), by which the county surveyor is made ex officio county engineer, is in violation of the Constitution. It seems clear to us that this act is a clear and palpable violation of section 15, art. 3, of the Constitution of Nebraska, which prohibits the passage of local or special laws regulating county and township offices, and further provides that in all cases where a general law can be made applicable no special law shall be enacted. By the provisions of the act under consideration, it is provided that in all counties of the state of Nebraska having over 50,000 inhabitants according to the census of 1900, the county surveyor shall be ex officio county engineer, etc. The operation of the act is limited to counties having over 50,000 inhabitants according to the census of 1900. The court takes judicial notice of the fact that there are only two counties in the state of Nebraska which had over 50,000 inhabitants according to the census of 1900. These are the counties of Douglas and Lancaster, and the act might as well have stated in express terms that in the counties of Douglas and Lancaster the county surveyor shall be ex officio county engineer as to limit the class of counties to which it is applicable to a class which plainly and inevitably contains only the two counties named. The object of the...