Wilcox v. Havekost
| Decision Date | 07 April 1944 |
| Docket Number | 31739. |
| Citation | 13 N.W.2d 889,144 Neb. 562 |
| Parties | WILCOX et al. v. HAVEKOST, State Treasurer, et al. (NEBRASKA WILDLIFE FEDERATION, Intervener). |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A demurrer to an answer searches the entire record and is applicable to the first pleading found to be defective.
2. The Constitution does not specifically forbid the imposition of a license fee to hunt and fish by the state at large hence the legislature is constitutionally free to provide by what authority such licenses shall be imposed and to direct the legal use to which the fees shall be appropriated.
Dryden & Jensen, of Kearney, and Ralph W. Slocum, of Lincoln for appellants.
Walter R. Johnson, Atty. Gen., Edwin Vail, Asst. Atty. Gen., for appellees.
C L. Clark, of Lincoln, for intervenor.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
This is an action in equity originally instituted by Malcolm B. Wilcox and Ralph W. Slocum, plaintiffs in their own behalf and in behalf of taxpayers of the state of Nebraska, against John Havekost, state treasurer, defendant. Since the commencement of the action there have been two changes in the office of state treasurer and therefore, by substitution of defendants the action now proceeds against Carl G. Swanson, the present state treasurer.
To the extent necessary to state the case here the plaintiffs filed a petition in the district court for Lancaster county, Nebraska, wherein it was set out that chapter 37 of the Compiled Statutes of Nebraska for 1929, as amended by the Session Laws of 1935, c. 82, and 1937, c. 89, provides for the obtaining of permits to hunt and fish in the state and for the exaction of fees for such permits which fees are payable to the state treasurer. They alleged that at the time of the commencement of the action there was an accumulation of fees in the hands of the treasurer of approximately $200,000, which sum of money was held by the treasurer as trustee.
They further allege that section 37-212, Comp.St.1929, section 1, ch. 82, Laws 1935, which section provides for the disposition of the fees, is unconstitutional and void for the reason that it makes provision for a disposition in violation of section 5, art. VII of the Constitution of the state of Nebraska.
The section of the statute referred to is the following: "The fund derived from the sale of permits as provided in this act or from State Park Concessions and permits and any unexpended balance now on hand from the sale of hunting, trapping and fishing permits and all moneys required by this act to be paid into the State Game Fund and all moneys from State Park Concessions and permits are hereby appropriated to the use of the Game, Forestation and Parks Commission and shall be used for the propagation, importation, protection, preservation and distribution of game and fish and necessary equipment therefor: Provided, that up to and including July first 1937 ten per cent of said fees received in any one year may be used 'and expended' for park purposes."
Section 5, art. VII of the Constitution is the following:
They allege that these fees are license fees within the meaning of the constitutional provision quoted and are distributable exclusively for the use and support of the common schools in the political subdivisions wherein they may accrue and may not be used for the purposes enumerated in said section 37-212 of the statutes. They contend, and that contention is the basis of the action, that the statutory diversion of these fees to purposes other than the support of the common schools, and particularly the common schools in the political subdivisions where they may accrue, is unconstitutional.
They pray for an accounting; that the state treasurer be required to pay the fees to the clerk of the district court for distribution for the support of the common schools; and that section 37-212, supra, be declared unconstitutional and void.
To the petition the defendant filed an answer, the allegations of which, in the light of subsequent proceedings, need not be set out here.
To the answer the plaintiffs interposed a general demurrer.
It may also be noted that in the case the Nebraska Wildlife Federation, with leave of court, filed a petition in intervention to which plaintiffs' general demurrer was also directed but in the view we take of the case, discussion of this petition is not required.
The court under the rule that a demurrer to an answer searches the entire record and is applicable to the first pleading found to be defective, found that the petition failed to state a cause of action, overruled the demurrer to the answer, in effect sustained it as to the petition and dismissed the action. See Hower v. Aultman, Miller & Co., 27 Neb. 251, 42 N.W. 1039; Oakley v. Valley County, 40 Neb. 900, 59 N.W. 368; City of Hastings v. Foxworthy, 45 Neb. 676, 63 N.W. 955, 34 L.R.A. 321; Hawthorne v. State, 45 Neb. 871, 64 N.W. 359; State v. Stuht, 52 Neb. 209, 71 N.W. 941; State v. Moores...
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