Trumble v. Trumble

• Decision Date: 29 June 1893
• Docket Number: 6120
• Citation: 55 N.W. 869,37 Neb. 340
• Parties: HENRY TRUMBLE ET AL. v. MARTHA TRUMBLE ET AL
• Court: Nebraska Supreme Court

55 N.W. 869

37 Neb. 340

HENRY TRUMBLE ET AL. v. MARTHA TRUMBLE ET AL

No. 6120

Supreme Court of Nebraska

June 29, 1893

ERROR from the district court of Lancaster county. Tried below before STRODE, J.

REVERSED AND REMANDED.

Reese & Gilkeson, for plaintiffs in error:

When an act is valid in part and invalid in part, and it appears that the invalid part was the inducement for the enactment of the valid part, the whole enactment must be treated as void. (Cooley, Constitutional Limitations, 147; State v Lancaster County, 6 Neb. 485; Ex parte Thomason, 16 Neb 238; State v. Lancaster County, 17 Neb. 85.) The act contains more than one subject, and is invalid under the constitutional provision that no bill shall contain more than one subject. (Constitution Nebraska, art. 3, sec. 11; White v. City of Lincoln, 5 Neb. 505; People v Mahaney, 13 Mich. 494.) Dower and estates derived by inheritance are each distinct subjects. (Sutherland v. Sutherland, 69 Ill. 481; Rawson v. Rawson, 52 Ill. 69.) The act is broader than its title, and is therefore invalid under the constitutional provision that the subject of every bill shall be clearly expressed in its title. (Constitution Nebraska, art. 3, sec. 11; State v. Lancaster County, 6 Neb. 485; Burlington & M. R. R. Co. v. Saunders County, 9 Neb. 511; City of Tecumseh v. Phillips, 5 Neb. 305; Miller v. Hurford, 11 Neb. 381; State v. Pierce County, 10 Neb. 477; State v. Lancaster County, 17 Neb. 87; Touzalin v. Omaha, 25 Neb. 817; Messenger v. State, 25 Neb. 676; Cooley, Constitutional Limitations, 147.) The act, both directly and by implication, amends several sections of the acts relating to wills, dower, curtesy, and married women, without repealing said sections and re-enacting them entire, and is therefore invalid under the constitutional provision "that no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed." (Constitution Nebraska, art. 3, sec. 11; People v. McCallum, 1 Neb. 182; Smails v. White, 4 Neb. 353; Hale v. Christy, 8 Neb. 264; Sovereign v. State, 7 Neb. 412; State v. Corner, 22 Neb. 266; Stricklett v. State, 31 Neb. 674).

J. E. Philpott, contra.

OPINION

IRVINE, C.

Martha Trumble filed her petition in the county court of Lancaster county setting forth that she was the widow of William Trumble, deceased, and that the other parties to this action were his children and grandchildren; that he died seized of certain real estate, one tract whereof was a homestead; that he left a will to the terms of which she never at any time consented, and praying that there might be set off to her one-third of all said real estate, and her homestead interest in the particular tract referred to. Upon the hearing of the case a decree was rendered in accordance with the prayer of the petition. An appeal was taken to the district court where a similar decree was rendered. To reverse this decree certain of the children bring these proceedings in error.

Under the pleadings and proof the decrees of the county and district courts were right if the act of the legislature approved March 29, 1889, Session Laws of 1889, chapter 57, is a valid legislative enactment. The plaintiffs in error urge that the act in question violates article 3, section 11, of the constitution, which provides that "No bill shall contain more than one subject and the same shall be clearly expressed in its title, and no law shall be amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed." They further contend that the act violates section 3 of the bill of rights, providing that "No person shall be deprived of life, liberty, or property without due process of law." The title of the act is as follows: "An act to amend section thirty (30) and one hundred and seventy-six (176) of chapter twenty-three (23) of the Compiled Statutes of the state of Nebraska of 1887, entitled 'Decedents,' and to repeal said original sections, and to repeal sections one (1), two (2), three (3), four (4), five (5), six (6), seven (7), eight (8), nine (9), ten (10), eleven (11), twelve (12), thirteen (13), fourteen (14), fifteen (15), sixteen (16), seventeen (17), eighteen (18), nineteen (19), twenty (20), twenty-one (21), twenty-two (22), twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26), twenty-seven (27), twenty-eight (28), twenty-nine (29) of chapter twenty-three (23) of the Complied Statutes of Nebraska of 1887, and section seventeen (17) of chapter thirty-six (36) of the Compiled Statutes of Nebraska of 1887, entitled 'Homesteads,' and all acts and parts of acts in conflict herewith." The third section of the act repeals the sections named in the title. Of these, sections 1 to 28 inclusive of chapter 23 provided for dower, the barring and assignment thereof, and various details connected therewith; section 29 provided for estates by curtesy; section 30 provided for the descent of real estate of intestates; section 176 provided for the distribution of personal property; while section 17 of chapter 36 related to the succession of homesteads, providing that on the death of the person from whose property it was selected it should vest in the survivor for life with remainder to the heirs of the decedent, subject to his power of disposing of such remainder by will, and further exempted such homestead from the payment of debts contracted by the decedent. The first section of the act of 1889 provides that section 30 shall be "Amended to read as follows." Then follows section 30, as amended, which in its first portion enacts a new order of descent of real estate of intestates. It then proceeds to provide an entirely new law for the disposition of homesteads, containing among other things provisions whereby the homestead shall be appraised upon proceedings instituted by the county judge, and that after deducting incumbrances, if the residue do not exceed one thousand dollars, the homestead shall descend to the widow subject to the incumbrances. If there be a residue after deducting incumbrances and the one thousand dollars it shall descend as provided in the act. The widow may elect to retain the homestead by paying the shares descending to other heirs, and if she do not so elect, the property shall be sold in a peculiar manner provided by the act, and the proceeds of the sale distributed. The section then proceeds to declare that the widow's share cannot be affected by any will of her husband unless she consent thereto in writing within thirty days after his will has been left with the county judge for probate, and she advised of its contents by a certified copy served on her by personal service and her consent filed with the county judge. The section next provides that all provisions made in the act in regard to a widow of a deceased husband shall be applicable to the surviving husband of a deceased wife; then that the widow shall be entitled to her "distributive shares" of all lands whereof the husband was seized of an estate of inheritance at any time during the marriage, unless she join in a deed of conveyance or is otherwise lawfully barred. Next follows a provision that if the wife be insane she may be barred of her interest in her husband's real estate at any time during the life of the husband by deed of her guardian. The section concludes with a sentence abolishing the estates of dower and curtesy.

Section 2 of the act amends section 176 of chapter 23, Compiled Statutes, by providing a new order of distribution of personal property.

Is this act within the inhibition of that clause of the constitution providing that no bill shall contain more than one subject? This question is in most cases surrounded with difficulty. As was said in Kansas City & O. R. Co. v. Frey, 30 Neb 790, 47 N.W. 87, this clause of the constitution "was never designed to place the legislature in a straight jacket and prevent it from passing laws having but one object under an appropriate title." Provided the object of the law be single the whole law may be embraced in a single enactment, although it may require any number of details to accomplish the object. The purpose of the constitutional inhibition upon the other hand was to require each proposed measure to stand upon its own merits, and to apprise the members of the legislature of the purpose of the act when called upon to support or oppose it, and perhaps a still stronger purpose was to prohibit the joining of several measures in one act in order to combine the friends of each measure and pass the bill as a whole, where probably a majority could not be procured in favor of any one of its different objects. (Kansas City & O. R. Co. v. Frey, supra.) Examining the act in the light of this purpose we think that it is within the constitutional inhibition. While all of its provisions are connected in some sense with one another, the connection is in some cases very remote. The descent of real property and the distribution of personalty of an intestate might perhaps well be provided for by a single statute under an appropriate title. The disposition of an intestate's homestead might, in the same way, be connected with the descent of his other realty. Perhaps even the subjects of dower and curtesy might fall within the same legislative object as the descent of lands. By a somewhat chain-like process it might be argued that provisions for barring dower during the lifetime of the husband might be embraced in any act relating to dower, and that in an act relating to barring dower the guardian of an insane wife might be authorized to convey such wife's inchoate estate of dower. But the affairs of mankind are so interwoven that by similar reasoning a...