Webster v. City of Hastings
| Decision Date | 03 January 1900 |
| Docket Number | 10,835 |
| Parties | JOSEPH R. WEBSTER, ADMINISTRATOR, v. CITY OF HASTINGS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Kearney county. Tried below before BEALL, J. Reversed.
REVERSED AND REMANDED.
Joseph R. Webster and Halleck F. Rose, for plaintiff in error:
The legislature has no power to change the scope or effect of prior legislation by amending the title of an act passed by a former legislative assembly. See People v. McCallum, 1 Neb. 182; State v. Stewart, 52 Neb. 243; Ballou v Black, 17 Neb. 391.
No act with the title "An act to amend the title and sections one (1), two (2), three (3), and four (4) [of chapter sixteen (16)] of an act entitled 'An act to provide for organization, government, and powers of cities of the second class having over ten [or two] thousand inhabitants,' approved March 1st, 1883," ever passed either house of the legislature, and therefore there is no such a law. See State v. McLelland, 18 Neb. 236; State v Robinson, 20 Neb. 96; State v. Liedtke, 9 Neb 462; In re Groff, 21 Neb. 647.
The purpose of the act of 1885 was to provide for organization of cities of population between 5,000 and 10,000--a subject not expressed by the title. The act is, therefore, void. See Sheasley v. Keens, 48 Neb. 64; State v. Board of County Commissioners, 47 Neb. 428; Weigel v. City of Hastings, 29 Neb. 384; Touzalin v. City of Omaha, 25 Neb. 817; State v. Tibbets, 52 Neb. 228; Douglas County v. Hayes, 52 Neb. 191.
The new matter introduced by amendment is not germane to the act amended, and is inconsistent with the title of the act. See State v. Lancaster County, 6 Neb. 484; Burlington & M. R. R. Co. v. Saunders County, 9 Neb. 511; Ex parte Thomason, 16 Neb. 238; Holmburg v. Hauck, 16 Neb. 340; State v. Pierce County, 10 Neb. 477; Miller v. Hurford, 11 Neb. 381.
The amending act of March 5, 1885, under which defendant claims its corporate powers, is not complete in itself, and is in conflict with the act of March 1, 1879, which is not amended or repealed. It is, therefore, unconstitutional. See State v. Board of Commissioners, 47 Neb. 438; State v. Cobb, 44 Neb. 438; In re House Roll 284, 31 Neb. 509; State v. Corner, 22 Neb. 272; Smails v. White, 4 Neb. 357; Sovereign v. State, 7 Neb. 413.
L. J. Capps and John C. Stevens, contra:
In arguing that the act is constitutional, reference was made to the following cases: Miller v. Hurford, 13 Neb. 14; State v. Ream, 16 Neb. 681; State v. Abbott, 80 N.W. 499; Lane v. Harris, 16 Ga. 217; Leland v. Wilkinson, 6 Pet. [U. S.], 317; Albrittin v. Huntsville, 60 Ala. 486; Payne v. Treadwell, 16 Cal. 221; Wetumpka v. Wetumpka Wharf Co. 63 Ala. 611; Montgomery v. Hughes, 65 Ala. 201; State v. Murfreesborough, 11 Humph. [Tenn.], 217; Beasley v. Beckley, 28 W.Va. 81; Sipe v. Holliday, 62 Ind. 4; Town of Albion v. Hetrick, 90 Ind. 545; Bellmont v. Morrill, 69 Me. 314; People v. Mahaney, 13 Mich. 481; Board of Commissioners v. Heenan, 2 Minn. 336; State v. Clare, 5 Ia. 509; Dawdee v. State, 58 Ind. 333; Girard v. Philadelphia, 7 Wall. [U. S.], 1.
Foxworthy's death abated the action. See Burlington & M. R. R. Co. v. Crockett, 17 Neb. 570; Mobile Life Ins. Co. v. Brame, 95 U.S. 759; Lawrence v. Martin, 22 Cal. 173; Comegys v. Vasse, 1 Pet. [U. S.], 193; Indianapolis & St. L. R. Co. v. Stout, 53 Ind. 143; McCurley v. McCurley, 60 Md. 185; Russell v. Sunbury, 37 O. St. 372.
This case, after having experienced more than the ordinary vicissitudes of litigation, has now practically reached the end of its changeful career. At the last trial in the district court the jury found that Foxworthy had been injured through the culpable omission of the city of Hastings to keep its streets free from obstructions and fit for use. There was a general verdict fixing the amount of plaintiff's recovery at the sum of $ 4,734.16, and a special finding to the effect that there was no legal excuse for Foxworthy's failure to file his claim for damages with the city clerk within six months from the date of the accident. The court denied plaintiff's motion for judgment on the verdict, and, on the assumption that the special finding was inconsistent with the general verdict, gave judgment for the defendant. It is alleged in the petition in error, and argued by counsel for plaintiff, that there was no law requiring Foxworthy to file his claim for damages with the city clerk, and that the special finding of the jury is, therefore, without controlling force and altogether immaterial. The question thus raised is the constitutionality of chapter 14 of the Session Laws of 1885. The legislature, in 1883, passed an act entitled "An act to provide for the organization, government and powers of cities of the second class having more than ten thousand inhabitants." The first section of the act declared (Session Laws. 1883, ch. 16): "That all cities in this state having more than ten thousand, and less than twenty-five thousand, inhabitants shall be governed by the provisions of this act." Section 34 of the act of 1883, as amended by chapter 15 of the Session Laws of 1885, required notice of claims for damages, resulting from personal injuries, to be filed with the city clerk within six months from the time such injuries were sustained. Chapter 14 of the Session Laws of 1885, as enrolled and signed by the governor, was entitled "An act to amend the title and sections 1, 2, 3, and 4 of an act entitled: 'An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants,' approved March 1st, 1883." The first section assumes to amend the title of the original act so as to read: "An act to provide for the organization, government, and powers of cities of the second class having more than five thousand inhabitants." The second section purports to amend section 1 of the original act so as to read: "That all cities of the second class having more than five (5,000) thousand inhabitants and less than twenty-five (25,000) thousand inhabitants shall be governed by the provisions of this act." Foxworthy was injured in 1886, so that, if the amendatory act last mentioned is valid, he can not recover; but if the act is void, there was no law requiring notice, and the finding of the jury upon that subject presents no legal obstacle to a judgment on the verdict.
One of the contentions of counsel for the plaintiff is that the act in question is void, because its present title is substantially different from the title under which it passed the legislature. Without giving in detail the history of the measure as disclosed by the legislative journals, and taking no account of an obvious, clerical mistake, it may be said that the bill, during its entire progress through the house and senate, and up to the time of its enrollment, was invariably designated and referred to as "A bill for an act to amend sections one (1), two (2), three (3), and four (4) of chapter sixteen (16) of 'an act entitled an act to provide for the organization, government and powers of cities of the second class having more than ten thousand inhabitants,' approved March 1, 1883." The present title of the act, namely, "An act to amend the title and sections one (1), two (2), three (3), and four (4) of an act entitled 'an act to provide for the organization, government and powers of cities of the second class having more than ten thousand inhabitants, approved March 1, 1883,'" is first mentioned in the report of the house committee on engrossed and enrolled bills announcing the enrollment of the measure. That the title was changed by inserting therein the words "the title and" after the bill had passed the legislature, and while it was being prepared for the signature of the executive, is a conclusion that can not be avoided without disregarding entirely the evidence of the legislative journals. This, under what is now the settled doctrine of this court, we can not do. The rule established by our former decisions is that the due authentication and enrollment of a statute affords only prima facie evidence of its passage; and that the legislative journals may be examined for the purpose of ascertaining whether the measure was enacted in the mode prescribed by the constitution. If the entries found in the journals explicitly and unequivocally contradict the evidence furnished by the enrolled bill, the former will prevail. The journals, being the records of legislative proceedings kept in obedience to the command of the constitution, are considered the best evidence of what affirmatively appears in them regarding the enactment of laws. See State v. McLelland, 18 Neb. 236, 25 N.W. 77; In re Granger, 56 Neb. 260, 76 N.W. 588; State v. Francis, 26 Kan. 724; Illinois C. R. Co. v. People, 143 Ill. 434, 33 N.E. 173; Meracle v. Down, 64 Wis. 323, 25 N.W. 412; State v. Platt, 2 S.C. 150; Osburn v. Staley, 5 W.Va. 85; People v. Mahaney, 13 Mich. 481; Spangler v. Jacoby, 14 Ill. 297; People v. Starne, 35 Ill. 121.
As the original and only legitimate title of chapter 14 of the Session Laws of 1885 was clearly not broad enough to cover legislation amending the title to chapter 16 of the Session Laws of 1883, we shall, in the further consideration of this case, deal with the former act under its proper title--the title by which it became known during its passage through both branches of the legislature. Leaving out of view, then, the spurious portion of the title, and the first section of the act, the question for determination is this, was it competent for the legislature to make the provisions of an act entitled "An act to provide for the organization, government and powers of cities of the second class having more than ten thousand...
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