Van Horn v. State ex rel. Abbott

• Decision Date: 01 October 1895
• Parties: VAN HORN ET AL. v. STATE EX REL. ABBOTT.
• Court: Nebraska Supreme Court

46 Neb. 62

64 N.W. 365

VAN HORN ET AL.

v.STATE EX REL. ABBOTT.

Supreme Court of Nebraska.

Oct. 1, 1895.

Syllabus by the Court.

1. The distinguishing feature of township organization lies in the application of the principle of local self-government. It is the regulation of purely local affairs by the townships and local officers thereof, and not the constitution of the county board, which distinguishes the township system.

2. Where supervisors are local officers, their number and the manner of their election are subjects connected with township organization, and not solely related to county government.

3. The object of section 11, art. 3, of the constitution, providing that no bill shall contain more than one subject, and the same shall be clearly expressed in its title, is to prevent surreptitious legislation. If a bill has but one general object, no matter how broad that object may be, and contains no matter not germane thereto, and the title fairly expresses the subject of the bill, it does not violate this provision of the constitution.

4. Whether or not a bill contains more than one subject is to be determined by examining the substance of the bill. Apparent duplicity in the title alone does not invalidate the act.

5. Chapter 28, Sess. Laws 1895, providing for township organization, etc., has but one subject, which is clearly expressed in its title.

6. Where different parts of the same statute are in irreconcilable conflict, the last words stand, and those in conflict therewith are disregarded. Albertson v. State, 2 N. W. 742, 892, 9 Neb. 429. Sess. Laws 1895, c. 28, construed, and held to provide for seven supervisors in all counties under township organization.

7. That portion of section 11, art. 3, of the constitution, providing that no law shall be amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed, has no application to acts complete in themselves, and not, in their effect, simply amendatory. Such complete acts are valid, although they may modify or destroy the effect of previous legislation.

8. Section 5, art. 10, of the constitution, confers upon the people, by vote, the power of adopting and discontinuing township organization. But it leaves to the legislature the power of providing the details of such organization.

9. The legislature may therefore amend or change the law in regard to township organization without referring such change to a vote of the people.

10. Section 4, art. 10, of the constitution, enacting that the legislature shall provide by law for the election of such county and township officers as may be necessary, does not prevent the legislature, when it reduces the number of officers, from providing that those already elected shall cast lots to determine whose terms of office shall be discontinued. Nor does it prevent the legislature from providing for the filling of vacancies provisionally by appointment.

11. If a law is general and uniform throughout the state, acting alike upon all persons and localities of a class, or who are brought within the relations and circumstances provided for, it is not objectionable as wanting uniformity of operation. State v. Berka, 30 N. W. 267, 20 Neb. 375.

12. Ministerial officers, upon whom the legislature has sought to impose a duty by statute, may assert the unconstitutionality of that statute as a defense to an application for a mandamus to require them to perform the supposed duty.

Error to district court, Dodge county; Marshall, Judge.

Application by the state of Nebraska, on the relation of John W. C. Abbott, for a writ of mandamus against S. S. Van Horn and others, board of supervisors of Dodge county. Writ granted, and defendants bring error. Affirmed.

Samuel Maxwell and C. Hollenbeck, for plaintiffs in error.

J. W. C. Abbott and J. E. Frick, for defendant in error.

IRVINE, C.

Chapter 28 of the Session Laws of 1895, among other radical changes with regard to counties under township organization, fixes the number of supervisors of such counties at seven, and, in counties now having township organization, requires the county clerk to call a special meeting of the supervisors for the purpose of dividing the county into suitable supervisor districts, and choosing supervisors for such districts. After making such division, the supervisors are required, if there be more than one supervisor in any district so formed, to cast lots among themselves, and so select one to remain supervisor for such district; and, if there are any vacancies, the board appoints supervisors to fill them. The county clerk of Dodge county called a meeting of the board, in pursuance of the act; and the board, when assembled, refused to perform the duties imposed upon them, on the ground that the act was in violation of the constitution, and void. The board at the same time instructed the county attorney to take the proper steps to have the constitutionality of the act determined; and the county attorney therefore applied to the district court for a writ of mandamus to compel the board of supervisors to meet, and divide the county into seven supervisor districts, as required by the act in question. The supervisors demurred to the petition for the writ. The district court overruled the demurrer, and allowed the writ. From this judgment the respondents prosecute error. The record presents only one general question,--the constitutionality of the act of 1895.

In order to an understanding of the case, a brief review of the legislation on the subject is necessary. Section 5 of article 10 of the constitution requires that: “The legislature shall provide by general law for township organization under which any county may organize whenever a majority of the legal voters of such county voting at any general election, shall so determine; and in any county that shall have adopted a township organization, the question of continuing the same may be submitted to a vote of the electors of such county at a general election, in the manner that shall be provided by law.” Attempting to perform the duty imposed upon the legislature by this provision, there was passed in 1877 “An act to provide for township organization.” This act, outside of its professed object, contained many provisions in regard to county government in general, and in regard to taxation and revenue, and was declared unconstitutional in State v. Lancaster Co., 6 Neb. 474, for the reason that the act embraced subjects not indicated by the title, and that its various provisions were so interdependent that the portion indicated by the title could not be given separate effect. In 1879 there was passed “An act concerning counties and county officers.” This act presented a complete scheme of county government, and contained special provisions for the government, not of townships, but of counties under township organization, although there was at that time, by reason of the failure of the act of 1877, no means of accomplishing township organization. The validity of the act of 1879 was presented to the court in the case of State v. Page, 12 Neb. 386, 11 N. W. 495; and the court held that the act embraced but one general object, which was fairly expressed by the title, and that the act was therefore not in conflict with that portion of section 11, art. 3, of the constitution, providing that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title.” So the law rested until 1883, providing for county government in counties under township organization, but being ineffective, as to that portion of the law, for want of a law authorizing and providing for township organization. By chapter 36, Sess. Laws 1883, a scheme of township organization and government was finally enacted under the title of “An act to provide for township organization, to define the rights, powers and liabilities of towns, and the duties, powers and compensation of the officers thereof.” This act, with some amendments, has remained in force until the present year. The act here in question (Sess. Laws 1895, c. 28) has for its manifest object to supersede the act of 1883, by providing a new and complete plan of township organization and government, and by expressly repealing the act of 1883. Further statements in regard to the nature of these various acts can more conveniently be made in connection with the several arguments advanced.

It is urged that the title to the act of 1895 is double; that it contains more than one subject; that the bill relates to both township and county government,--two entirely separate and distinct subjects; and that both the title and the act indicate this duplicity. The title of the act is as follows: “An act to provide for township organization, to divide counties under township organization into supervisor districts, to define the rights, powers and liabilities of towns, the duties and compensation of the officers thereof, and to provide for the election of town officers, and for the election of supervisors and the term of office of supervisors to be elected and chosen in the several supervisor districts into which the county is to be divided when governed by township organization, and to repeal section one (1) to sixty-two (62) both inclusive, of article four (4) chapter eighteen (18) Compiled Statutes of Nebraska 1893.” And analysis of the act discloses that it embraces the whole subject of township organization and government, but that it does not affect in any manner the government of the county, as such, except by changing the law in regard to the constitution of the board of supervisors. County government, and the duties of the board of supervisors in county affairs, remain as they were provided by the act of 1879. In connection with, and incidental to, the main provisions of the act, we do, however, find certain provisions which, it may be said, affect the county as a whole. Under the law of 1...