Van Horn v. State ex rel. Abbott
| Decision Date | 01 October 1895 |
| Docket Number | 7998 |
| Citation | 64 N.W. 365,46 Neb. 62 |
| Parties | S. S. VAN HORN ET AL. v. STATE OF NEBRASKA, EX REL. JOHN W. C. ABBOTT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dodge county. Tried below before MARSHALL, J.
AFFIRMED.
Samuel Maxwell and C. Hollenbeck, for plaintiffs in error:
The act under consideration is void because the title contains more than one subject. (Sutherland, Statutory Construction, secs 86-97; State v. Lancaster County, 6 Neb. 474; Trumble v. Trumble, 37 Neb. 340; Curch v. City of Detroit, 31 N.W. [Mich.], 447; Davies v. Board of Supervisors, 50 N.W. [Mich.], 862; Ives v Norris, 13 Neb. 252; Holmburg v. Hauck, 16 Neb 337; Touzalin v. City of Omaha, 25 Neb. 817; Weigel v. City of Hastings, 29 Neb. 379; Northwestern Mfg. Co. v. Chambers, 58 Mich. 381; People v. Congdon, 43 N.W. [Mich.], 386.)
The act is void, for the reason that it contains several subjects independent of each other which are not embraced within the title.
The constitutionality of the act is challenged upon the ground that it is ambiguous and indefinite to such an extent that it is incapable of enforcement.
The legislation is special, because the act provides five supervisors for some counties and seven for others.
The law repeals a large number of other laws without any reference to them in the title of the act and is therefore invalid.
The act is inoperative and void as to counties now under township organization, because it imposes upon such counties the system of local government provided for by the act without a vote of the people of the county, as provided in section 5, article 10, of the constitution.
The act under consideration practically, and in effect, amends the act of 1879 (Compiled Statutes, 1895, sec. 62, ch. 18), without any reference to it, and should therefore be declared invalid. (Trumble v. Trumble, 37 Neb. 340; State v. Lancaster County, 6 Neb. 474.)
The act is objectionable, because it provides for new county officers and provides for their selection by casting lots, thereby amending the laws in relation to appointment.
The board of county supervisors may resist an application for mandamus on the ground that the act of the legislature, requiring the performance of the duty sought to be enforced, is unconstitutional. (State v. Lancaster County, 6 Neb. 474.)
George L. Loomis, also for plaintiffs in error.
John W. C. Abbott and J. E. Frick, contra:
The law does not violate section 11, article 3, of the constitution, providing that "No bill shall contain more than one subject, and the same shall be clearly expressed in its title."
The contention of plaintiffs in error that the act repeals the law of 1879 without reference to the government of counties is not tenable. (Jones v. Davis, 6 Neb. 33; State v. Page, 12 Neb. 386; Brome v. Cuming County, 31 Neb. 362; Warren v. Crosby, 34 P. [Ore.], 661; People v. Mahaney, 13 Mich. 496; Cooley, Constitutional Limitations [5th ed.], 181.)
The following authorities are cited in reply to the contention that the act repeals a large number of different statutes without any reference to them: Brome v. Cuming County, 31 Neb. 362; Sutherland, Statutory Construction, secs. 154-156.
As to uniformity of laws, reference is made to the following cases: State v. Berka, 20 Neb. 375; Lancaster County v. Trimble, 33 Neb. 121.
In reply to the contention that the act is invalid because it effects a change in township organization without submitting the question to the legal voters, under section 5, article 10, of the constitution, the following authorities are cited: Board of Supervisors v. Heenan, 2 Minn. 330; Bank of the Republic v. Hamilton, 21 Ill. 53; People v. Brislin, 80 Ill. 423.
The law is not invalid because it provided for the casting, or drawing, of lots to determine which one of the several supervisors should temporarily represent any given district that might be established from two or more townships until the following general election.
The act is not void for indefiniteness. (In re Frey, 18 A. [Pa.], 478; Board of Supervisors v. Heenan, 2 Minn. 339.)
The plaintiffs in error have no such rights involved as entitle them to question the validity of the act. (People v. Salomon, 54 Ill. 39; Merrill, Mandamus, sec. 65.)
The case is stated by the commissioner.
Chapter 28 of the Session Laws of 1895, among other radical changes with regard to counties under township organization, fixes the number of supervisors in 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 it, 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 County, 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, 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, article 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, Session Laws, 1883, a scheme of township organization and government was finally enacted under the title of "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." This act, with some amendments, has remained in force until the present year. The act here...
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