150 P. 301 | Utah | 1915
(after stating the facts as above).
The first question presented relates to the “emergency clause” of the act in question, which provides that “this act shall take effect upon approval.” It is contended
“All acts shall be officially published, and no act shall take effect until so published, nor until sixty days after the adjournment of the session at which it passed, unless the Legislature by a vote of two-thirds of * * * each house shall otherwise direct.”
It is contended on behalf of defendants that the act containing the emergency clause, having been engrossed, approved, signed, enrolled, and deposited with the secretary of state, implies absolute verity and should be accepted as the very bill adopted by the Legislature, and that the journal of the Legislature cannot be looked to for the purpose of attacking the manner of its enactment. While a question is thus presented that is not free from doubt, it is nevertheless, so far as the issues here involved are concerned, academic only. One of the essential allegations of the peti-tition by which the action of this court is invoked in this proceeding is:
“That defendants will on and after the 11th day of May,
The prayer of the petition is in part as follows:
That the defendants “be absolutely and forever restrained and prohibited from taking any further proceedings in said * * * matter, or doing any of the acts or things herein-before complained of,” etc.
It will thus be observed that the action of this court is invoked to prohibit defendants from doing certain things set forth in the petition, and not for the purpose of reviewing and correcting some alleged error based on a past transaction.' The office and function of the writ of prohibition is to—
“arrest the proceedings of any tribunal, corporation, board or person * * * when such proceedings are without or in excess of the jurisdiction of such tribunal,” etc. Comp. Laws 1907, section 3654.
“The writ, * *' * as its name imparts, is one which commands the person to whom it is directed not to do something by’which, by the suggestion of the relator the court is informed he is about to do. If the thing he already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act.” Spelling, Ext. Relief, Sec. 1720.
In High’s Ext. Legal Rems, section 766, the author says:
“Another distinguishing feature of the writ is that it is a preventative rather than a corrective remedy and issues only to prevent the commission of a future act and not to undo an act already performed.”
See, also, 32 Cyc. 603.
Therefore the allegation in the petition that defendants, on the 14th day of April, A. D. 1915, in pursuance of the act in question, “did appoint one Brigham Clegg to the alleged office of justice of the peace * * * and one M. W. Earl to the alleged office of constable,” etc., can be considered as matters of inducement only. It appears that the act in question, regardless of the emergency clause, went into effect May 11, 1915. The case was presented to this
It is also contended that section 544x1 of the act providing that “all causes of criminal action, arising within the limits of cities of the first class of 40,000 or more inhabitants and over which justices of the peace have jurisdiction,
Another objection urged against the validity of the act in question is that it violates section 23 of article 6 of the
“Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject. * * * ”
We think the objection is unsound. Manifestly the purpose of this provision of the Constitution is to prevent the Legislature from intermingling in one act two or more separate and distinct propositions' — things which, in a legal sense, have no connection with, or proper relation to, each other. The reasons for, and the scope of, constitutional provisions of this character, are well illustrated in 26 A. & E. Ency. L. (2d Ed.) 575, in the following language:
“This requirement of singleness is not intended to embarrass honest legislation, hut only to prevent the vicious practice of joining in one act incongruous and unrelated matters; and if all the parts of a statute have a natural connection and reasonably relate, directly or indirectly to one general and legitimate subject of legislation, the act is not open to the objection of plurality, no matter how extensively or minutely it deals with the details looking to the accomplishment of the main legislative purpose.”
It will be noticed from a casual reading of the act that its purpose (general object) is to provide two justice of the peace courts in certain precincts that are made coextensive with cities having a population of 40,000 or more inhabitants and one justice of the peace court in precincts that are coextensive with cities having more than 15,000 and less than 40,000 inhabitants. All of the provisions of the act relate and are germane to its general purpose. They have a natural.connection with the subject, namely, providing for and establishing justice of the peace courts in the classes of precincts therein mentioned. The fact that the act provides for the election of two constables in precincts coextensive with cities of the first class of 40,000 or more inhabitants ana the appointment of a clerk and deputy clerks of “the court of the justice of the peace” of such precincts does not make it repugnant to the provision of the Constitution above set forth. These provisions are parts of, and are germane to, the subject of the act, namely, providing and establishing
“The law relating to and regulating the duties of justices and constables had been always considered, as one subject, and has been so treated in the Constitution of the state and the local law itself.”
The Supreme Court of Alabama, in applying a similar constitutional provision to a statute as broad, if not broader than our own, said, referring to the statute:
“Every provision of the act is so plainly germane and cognate to the general subject of establishing the court and defining its powers and jurisdiction that we will make no further comment. Hawkins v. Roberts, 122 Ala. 130, 144, 27 South. 327, and authorities there cited. We feel no hesitation in holding the act to be constitutional.” State v. Abernathy, 40 South. 353.
The Constitution of South Dakota contains the following provision:
“No law shall embrace more than one subject which shall be expressed in its title.”
The Supreme Court of that state, in a well considered opinion (State v. Morgan, 2 S. D. 32, 48 N. W. 314), says:
“Whatever may be the scope of (an) act, it can embrace but one subject, and all its provisions must relate to that subject. They must be parts of it, incident to it, or in some reasonable sense auxiliary to the object in view. This constitutional requirement is addressed to the subject, not to the details, of the act. That subject must be expressed in the title. The subject must be single. The provisions to accomplish the object involved in that subject may be multifarious. * * * The Constitution authorizes one, subject, and any number of matters, provided they have any natural or logical connection with each other in legislation.”
And again:
“There is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act.”
In the case of Marioneaux v. Cutler, 32 Utah 475, 91 Pac. 355, it was contended that salary and mileage of a judge were different subjects, and hence could not be joined in the same act. This court, speaking through Mr. Justice Frick, said:
*338 “We need not discuss at length the reasons why salary or compensation and mileage may be one subject within the purview of the Constitution. That, as abstract propositions, they may be two subjects, cannot well be questioned. It is equally apparent that for legislative purposes, in fixing the compensation of officers, they may quite as naturally form but one subject.”
Edler v. Edward, 34 Utah 13, 95 Pac. 367; Salt Lake City v. Wilson, 46 Utah 60, 148 Pac. 1104; Messenger v. Teagan, 106 Mich. 654, 64 N. W. 499; Clark v. Black, 136 Ga. 812, 72 S. E. 251; Conner v. Mayor, etc., of New York, 5 N. Y. 297; 7 Words and Phrases, 6708-6710, and volume 4, New Series, 731; State v. Fontenot, 132 La. 481, 61 South 534, Ann. Cas. 1915A, 76.
We also invite attention to an elaborate note to the last cited case, commencing on page 79, Ann. Cas., in which decisions are cited bearing on practically every question raised in the case at bar.
The validity of the act is also challenged on the ground that it is in contravention of the following provisions
“The Legislature is prohibited from enacting any private or special laws in the following cases: * * * (4) Regulating the jurisdiction and duties of justices of the peace. * * * (6) Regulating the practice of courts of justice. * * * (11) Regulating county and township affairs. * * * (18) Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed. * * * In all cases where a general law can be applicable, no special law shall be enacted.”
The concluding paragraph of this section provides that:
“Nothing in this section shall be construed to deny or restrict the power of the Legislature to establish and regulate the compensation and fees of county and township officers. ’ ’
We are clearly of the opinion that justices of the peace are, in the meaning of the law, county officers (18 A. & E. Ency. L. [2d Ed.] 10; Ballantyne v. Bower, 17 Wyo. 356, 99 Pac.
It is contended that the act violates the provisions of article 21 of the Constitution.
Section 1 is as follows:
“All state, district, city, county, town and school officers, excepting notaries public, boards of arbitration, court commissioners, justices of the peace and constables, shall be paid fixed and definite salaries; Provided, that
Section 2, so far as material here, provides that:
“The Legislature shall provide by law the fees which shall be collected by all officers within the state. Notaries public, boards of arbitration, court commissioners, justices of the peace, and constables paid by fees, shall accept said fees as their full compensation. But all other state, district, county, city, town and school officers, shall be required by law to keep a true and correct account of all fees collected by them, and to pay the same into the proper treasury.”
These provisions should be read and construed in connection with the provisions of section 26, art. 6, herein set forth, and particularly with the concluding paragraph thereof, which provides that nothing in that section “shall be con-, strued to deny or restrict the power of the Legislature to establish and regulate the compensation and fees of county and township officers.” We do not think the provisions, when so read and construed, prohibit the Legislature from establishing and regulating the “compensation and fees” of justices of the peace and other county officers. The act, therefore, cannot be successfully assailed on the ground last mentioned.
Another objection urged against the validity of the act is that it provides that persons who have not been admitted by this court to practice as attorneys at law in the courts
‘ ‘ In all cases where a general law can be applied no special law shall be enacted.”
There is much force to plaintiff’s contention that, in prescribing the qualifications of justices of the peace, a general law on the subject would be applicable, and that an act fixing a different standard of qualification's for justices of the peacé in precincts coextensive with cities of the first class from that required of justices of the peace in other precincts is in derogation of this provision of the Constitution. Conceding, without deciding, that the act in that regard is void, it does not necessarily follow that the entire act must be so declared. The board of county commissioners may nevertheless appoint some person to the office who, in its judgment, is.suitable for the position, and, if perchance it should appoint some person who has not been regularly admitted by this court to practice in the courts of this state, the right of such person to hold the office might, in a proper proceeding, be challenged. It must be conceded that, if the law were silent respecting the qualifications a person must possess in order to be eligible to hold the office, the board of county commissioners might very properly appoint a person who has been regularly admitted to practice before the courts of this state. We therefore deem is unnecessary on this occasion to decide or further consider the question.
It is also contended that the appointment of a clerk and deputy clerks, as provided in section 544x4 of the act, regulates the duties of justices of the peace in precincts coextensive with cities of the first class containing
The writ is denied. Costs to defendants.