Swanson v. State

Decision Date25 January 1937
Docket Number30064.
Citation271 N.W. 264,132 Neb. 82
PartiesSWANSON v. STATE ET AL.
CourtNebraska Supreme Court

Syllabus by the Court.

1. " The self-imposed limitations on the power of the people to amend their fundamental law should not be so construed as to defeat the will of the people, plainly expressed, on account of a slight and unimportant failure to comply literally with such limitations, if the requirements are substantially observed." State v. Winnett, 78 Neb. 379, 110 N.W. 1113, 10 L.R.A.(N.S.) 149, 15 Ann.Cas 781.

2. Where the Constitution prescribes certain procedure for the giving and publication of notice, in the submission to the electors of a proposed constitutional amendment, there must be a substantial compliance only with such requirements in order to effect either a valid submission or adoption of the proposal.

3. Under the provisions of section 1, art. 16, and section 4 art. 3 of the Constitution, the result of the vote upon a proposed constitutional amendment is to be determined by the state canvassing board, and, if it carries by the required majority, it becomes operative on the date of the governor's proclamation to that effect.

4. The proposed amendment to section 1, art. 4, of the Constitution as set out in chapter 188, Laws 1935, is held to have been properly submitted to and adopted by the electorate of the state and such amendment became effective on December 15, 1936, the date of the governor's proclamation.

5. A title is not necessary to an act providing for the submission of a proposed amendment to the Constitution, and if a title has been inserted it will be treated as null and void.

6. " A constitutional amendment becomes an integral part of the instrument and must be so construed. It must be harmonized, if possible, with all other provisions, and effect must be given to every section and clause as well as the whole instrument." Luikart v. Higgins, 130 Neb. 395, 264 N.W. 903.

7. In construing a constitutional amendment for the purpose of ascertaining the intent of the people in adopting it, the courts must find such intent in the language of the amendment itself and they are not to hold that the people intended anything different from what the language employed imports.

8. The intent of the people in adopting the amendment under consideration, as determined from the amendment itself, was to deprive the commissioner of public lands and buildings of his status as a constitutional officer and, to that extent, the amendment is self-executing.

9. The amendment adopted does not expressly or by implication abolish the office of commissioner of public lands and buildings as an executive office of this state.

10. The amendment under consideration does not expressly or by implication repeal existing statutes imposing duties and obligations upon the commissioner of public lands and buildings.

11. The language of the amendment adopted is wholly ineffective to in any manner affect the lawful discharge of the official duties imposed by law upon the office of commissioner of public lands and buildings.

12. All appropriations heretofore lawfully made for the support and maintenance of the office of commissioner of public lands and buildings remain as valid and subsisting appropriations after the adoption of the amendment in question.

Original proceeding by Leon N. Swanson against the State of Nebraska and others.

Judgment in accordance with opinion.

ROSE and EBERLY, JJ., dissenting.

A constitutional amendment becomes an integral part of the Constitution, and must be so construed, and must be harmonized, if possible, with all other provisions to give effect to every section and clause as well as the whole instrument.

Crofoot, Fraser, Connolly & Stryker, of Omaha, for petitioner.

Wm. H. Wright, Atty. Gen., and Milton C. Murphy, Asst. Atty. Gen., for respondents.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

CARTER Justice.

This is an action brought under our Declaratory Judgments Act (Comp.St.1929, § 20-21, 140 et seq.) by Leon N. Swanson for the purpose of determining his legal rights and official status after the purported adoption of an amendment to the Constitution of this state affecting the office of commissioner of public lands and buildings which he formerly held and to which he now claims to be entitled.

The record discloses that petitioner, at the general election held in November, 1934, was elected commissioner of public lands and buildings for a two-year term commencing the first Thursday after the first Tuesday in January, 1935, and, after qualifying, entered upon the discharge of the duties of that office. At the election held in November, 1936, petitioner was a candidate for reelection to the same office and received a majority of the votes cast for the candidates for the office.

It also appears that the 1935 session of the legislature passed an act, known as House Roll No. 404, providing for the submission of a proposed amendment to section 1, art 4 of the Constitution, to the electorate of this state. Laws 1935, c. 188. That part of section 1, art. 4 of the Constitution, that is material in the consideration of this case is as follows: " The executive officers of the state shall be the Governor, Lieutenant Governor, Secretary of the State, Auditor of Public Accounts, Commissioner of Public Lands and Buildings, Treasurer, Attorney General, Superintendent of Public Instruction and the heads of such other executive departments as may be established by law." The effect of the proposed amendment to the above section of the Constitution was to remove therefrom the words " Commissioner of Public Lands and Buildings." The proposal thus submitted was voted upon by the electorate of Nebraska at the general election held in November, 1936, and, after a tabulation and canvass of the votes cast thereon, the governor, on December 15, 1936, by proclamation formally declared that " said proposed amendment is now in full force and effect as a law of the state and as a part of the Constitution of the state of Nebraska from the date of this proclamation." Pursuant to this proclamation, the petitioner, so far as possible, was deprived of the exercise of the powers incident to the office of commissioner of public lands and buildings, all compensation denied him from and after November 3, 1936, the date of the general election, and all of his official acts performed subsequent to that date refused and denied as legal and official acts by other officials charged with the administration of the governmental affairs of the state.

The first contention made by petitioner is that provisions for the amendment of the Constitution are mandatory and must be complied with, and that there was no substantial compliance with the requirements of section 1, art. 16 of the state Constitution, which provides that " such proposed amendments shall be entered on the journals, with the yeas and nays." The stipulation of facts shows that the title of the bill appears in the journal of each house of the legislature. The journals of each house further show that the yeas and nays were noted therein and that the constitutional requirement of a three-fifths vote in each house had been obtained. In State v. Winnett, 78 Neb. 379, 110 N.W. 1113, 10 L.R.A.(N.S.) 149, 15 Ann.Cas. 781, a case involving the point being considered, the court said: " The self-imposed limitations on the power of the people to amend their fundamental law should not be so construed as to defeat the will of the people, plainly expressed, on account of a slight and unimportant failure to comply literally with such limitations, if the requirements are substantially observed." Under the authority of this case, the journals of the two houses of the legislature show a substantial compliance with section 1, art. 16 of the Constitution, in so far as they affect House Roll No. 404.

It appears that there was not a strict compliance with that part of section 1, art. 16 of the Constitution, which provides that the proposed amendment shall be " published once each week for four weeks, in at least one newspaper in each county, where a newspaper is published, immediately preceding the next election of members of the Legislature." The record shows that in one county of the state publications of the notice were not made on the correct dates; in three others, publications were not run the required number of times. In State v. Cline, 118 Neb. 150, 224 N.W. 6, this court said: " Nevertheless, where the Constitution itself prescribes certain procedure relative to an important element, as the giving and publication of notice, in the submission to the electors of a proposed amendment, there must be a substantial compliance with such requirements in order to effect either a valid submission or adop tion of the proposal." See, also, In re Senate File 31, 25 Neb. 864, 41 N.W. 981; Weston v. Ryan, 70 Neb. 211, 97 N.W. 347, 6 Ann.Cas. 922; State v. Winnett, supra. We therefore conclude that, under the authorities cited, the requirements of section 1, art. 16 of the Constitution, as to publication and notice of the amendment to the electorate of Nebraska, were substantially complied with and the petitioner's contentions to the contrary are without merit.

The petitioner next contends that the official canvass of the votes cast for and against the proposed constitutional amendment must be made by the legislature when it convenes in 1937, and that until such canvass is made and the result determined the amendment cannot become effective.

The respondents insist that an amendment to a constitutional provision takes effect as of the date of the election at which it was submitted, regardless of the method, time or means of...

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