People v. McCallum

1 Neb. 182 | Neb. | 1871

Crounse, J.

The grounds, mainly upon which the denial of McCallum’s right to exercise the duties and receive the emoluments of clerk of the District Court of Otoe county, is placed, are :

1. The alleged'unconstitutiouality of the act of February 9, 1869, which takes from the judges of the District Court the authority to appoint clerks of that county, and which makes the county clerks of the several counties, ex-officio, such clerks; and,

2. The failure of McCallum to give a bond for the faithful performance of his duties of clerk of the District Court, other than that given as county clerk.

The unconstitutionality complained of is that the act referred to, was enacted in violation of so much of section nineteen, article two of the State constitution, as declares that, “ No bill shall contain more than one subject, which shall be clearly expressed in its title ; and no law shall be revived or amended, unless the new act contain the entire act revived and the sections amended.”

With respect to its title : The act contains but one subject, which is, to provide clerks for the District Coúrt. By section one of the act which is amended, such clerks were appointed by the judges of the respective districts. The amendment makes county clerks ex-officio clerks of the District Court. This is quite well expressed in the title, “ An act to amend section 1 of an act entitled, An act to provide for the appointment of clerks of the District Court, approved June 22, 1867.” It is not required that the title should contain an abstract of the bill, nor set out the particulars of the amendment. Whether this requirement of the constitution is designed as a rule for the government of the legislature, an observance of which is enjoined by a sense of duty and the official oath of each member, and not subject to any supervisory power of the courts (3 Ohio State, 481 ; 6 Ib. 179), it is unnecessary to stop to inquire. The constitution not having fixed the degree of particularity with which a title is to express the subject, it is enough that the legislature, with this provision before them, have selected their own title ; and although we might not agree upon it as the most suitable or comprehensive, the act for that reason is not to be declared void.

The purpose of this provision is to prevent surprise in legislation, by leaving matter of one nature embraced in a bill whose title expresses another. — State v. County Judges of Davis Co. 2 Iowa, 282. There can be no suggestion of any such deception in the title of the act before us. It is only in cases clearly Involving the mischief provided against, that this court should be called upon to declare void the acts of the legislature. Chief Justice Oakley of the New York Superior Court, well remarked : “ It is not a light thing to set aside an act of the legislature, even when its objections are grave and weighty ; but when they touch, not the substance of the law, or the authority of the legislature to pass it, but are merely criticisms upon its form or phraseology, the exercise of such a power by the judiciary of the State would be prolific of evil, and would soon be universally condemned.” — The Sun Mutual Insurance Co. v. The City of New York, 5 Sand. 10.

The further question is presented under this section of the constitution, whether the new act shall contain the section as it stood before amendment, or simply set out the section as amended ? The able counsel for the relator contends that the new act must recite the old section and that literally. This construction is rested chiefly upon the case of Langdon v. Applegate, 5 Ind. 328, which, upon a clause of the constitution of Indiana, similar to this, adopt the interpretation insisted upon. The decision of that case was by a divided court, and the opinion published quite meagre and unsatisfactory. It seems never to have challenged respect, but having been announced by the highest court of that State was, tor a time, adhered to, not without protest however.

Judge Goodkin, in a case where he felt constrained to follow, remarked, “Were this an original question I would not so decide.” — Littler v. Smiley, 9 Ind. 118. At last, however, the Supreme Court boldly met and overturned Langdon v. Applegate, in the well considered case of Greencastle Southern Turnpike Co. v. The State ex rel. Malat, 28 Ind. 382. This was a somewhat recent case, and was not cited upon the argument before us.

If the case under consideration were, in my mind, a doubtful one, this action of tbe Supreme Court of Indiana would go far in resolving it against tbe plaintiff in error. The inconvenience must be great and the error quite obvious, which would induce the same court to overturn one of its own decisions. “When a rule has once been deliberately adopted and declared,” says Chancellor Kent, 1 Com. 476, 11 it ought never to be disturbed by the same court, except for very cogent reasons and upon a clear manifestation of error.” .

The only State, I believe, having a like constitutional provision, which has given it the interpretation here claimed, is Louisiana. Some early cases of that Slate are referred to, but I have been unable to possess myself of them, to see the reasoning upon which they proceeded. Neither have I been able to advise myself whether, like Indiana, the courts of that State have not reversed-these early cases, and relieved themselves from the annoyance and embarrassment attending them.

Judge Cooley, Constitutional Limitations, 152, after referring to the rule expressed in these early cases in Indiana and Louisiana, says : “It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published, as revised or amended, and that anything more only tends ho render the statute unnecessarily cumbrous.” The construction insisted on, in my judgment, is wanting in reason as well as authority to support it.

As the best light in which to discover the true meaning of this provision of the constitution, let us briefly inquire into the purpose of its institution, and perhaps the mischief it was designed to correct may be as well illustrated by reference to the course of past legislation. Taking up a volume of Territorial Laws nearest me, I open at page 20, Laws of the Territory of Nebraska, 1867, upon “An Act to amend Section 34, Chapter 46, of the Revenue Law,” which does it in the following rather stenographic manner :

“ Section 1. Be it enacted by the Council and House of Representatives of the Territory of Nebraska, that line four, section thirty-four, be amended as follows : Strike out the word “ two,” and insert the word “ five : ” that after the word “ precinct ” in tenth line, insert the word “ voting.” Several serious objections to this character of legislation are obvious. With terms as blind as this, a bill may be read three different times, as required by the constitution, or a hundred times, and no one, from its reading alone, except he who drafted the bill, or those immediately interested in it, would comprehend its object. Inexperienced and inattentive members would consent to the passage of any bill concerning the object of which they know nothing, when to inform themselves would involve an examination of other laws not readily accessible. Designing men could effect material changes in the most important laws, by deceiving members into.the belief, that they were acting upon other and less important subjects. These objections are obviated, besides presenting the law when published in a complete and intelligent form, without necessitating recourse to other volumes as a key, by requiring the new act to contain the section amended, i. e., the section as amended. The act above cited, brought into conformity with this constitutonal requirement, would read, (the enacting clause being omitted), that section 34 of chapter 46, of the Revised Statutes be and hereby is amended so as to read : “ Section 34. No special, precinct or district school taxes hereafter levied pursuant to any existing law, for the purpose of building or repairing school houses, or for any other purpose, shall exceed in any one year the rate of five mills on the dollar,” &c. Here, it will be seen, that under the system allowed prior to the adoption of the constitution, an important act, which of itself is senseless, and liable to confound and deceive, is made by a compliance with the constitution, at once intelligible to the legislator, and complete and convenient for him who has' occasion to use it. With the purpose of this provision so fully satisfied by the publication of the law as amended, I can see no good object to be attained by the publication of, the old law, while I can discover much embarrassment and mischief likely to arise from it. The act under consideration is one of the few of the amendatory acts in which it is undertaken to set out the old sections amended. By the mistake or oversight of him who drafted the bill, or through the carelessness or design of an enrolling clerk, some few words are omitted from what purports to be the old section. A mis-recital, it is claimed, is equivalent to no recital. Therefore, under the construction contended for, the act must be declared void, and the will of the legislature defeated, not because they have transcended any authority affecting person or property, or because of any substantial defect in the act, but because of a simple clerical error which is of no importance to the law itself, nor which had the least influence upon its passage. With legislators intent upon what the law is to be when passed, and naturally indifferent as to what it may have been, such errors must occur frequently, and, under the rule urged here, would prove very damaging to legislation.

Add to this, the ■ appearance of these amendatory acts upon the pages of our statute book; particularly that of a section, which should unfortunately have undergone repeated amendments, and where old obsolete acts must be brought forward and spread out at length, making our laws unnecessarily cumbrous and confused, and imposing additional expense in their publication, and there remains little to induce a belief that such was ever designed to be the interpretation' of this constitutional provision.

I am clearly of the opinion, therefore, for the reasons I have mentioned, and for others that occur to me, that this section of the constituion does not require’ the recital of the old section in the amendatory act, but that it is satisfied by setting forth the section as amended.

McCallum' having been duly elected county clerk of Otoe county, taken the oath of office and given the bond required of him as such, it remains to be considered whether, under a law making county clerks ex officio clerks of the District Court, it was required of him to give another and additional bond for the discharge of his duties as clerk of the District Court. Before this act of 1869, the office of clerk of the District Court was a separate and distinct office, the judges of the several judicial districts appointing their own clerks. By section 38, page 52, Eevised Statutes, such clerks were' required, before entering upon their duties, to give a bond in the sum of three thousand dollars, conditioned for their faithful performance. But under the amended law I do not understand that this bond must be given in addition to that already given as county clerk. It has not been so understood in either of the other judicial districts. In fact, I believe no doubt upon this point ever was suggested Until this case arose. Even the relator must, in the first instance, have believed.no bond was required, by acting as clerk of the District Court, under a deputyship given him by McCallum. Similar laws have never been so understood. By laws of First General Assembly of the Territory, page 162, the office of register of deeds was created. His bond was fixed at five thousand dollars, page 178. By an act of January 11, 1861, county clerks were made ex officio registers of deeds, and empowered to keep the books and perform the duties heretofore belonging to that office, and I will venture to say there is not an instance where two distinct bonds were ever required, one for the office of county clerk and another for register of deeds. We are pointed to no authority or principle of law supporting the position assumed by the relator’s counsel; and in the absence of it, this general understanding had of this law, and of laws siniilar, by judges, officers and others interested, should go far in settling the interpretation to be given by this court. It is reasonable to suppose the Legislature, in enacting this law, did it in the light of the general construction given to like laws, and that they designed here that, the bond of county clerk should extend to his acts as clerk of the District Court. Upon examina.tion, this presumption is not affected by the case of the State Librarian referred to by counsel. Prior to June 22, 1867, the office of State Librarian was a separate office, filled by election at the time of choosing State officers. By act of the Legislature of that date, the Secretary of State was constituted ex officio State Librarian. ' By an act approved two days later, amending the law relating to the amount of bonds for certain State officers, the bond of State Librarian is fixed at five thousand dollars. This, it is urged, is evidence of the fact that the Legislature designed to exact this bond iu addition to that required for the discharge of duties as Secretary of State. It is certain that the bill to fix the amount of bond of State Librarian was introduced before the ’Secretary of State was made ex officio Librarian, and by those who know something of the wanderings of a bill through the two houses before its final passage, it will be easily believed that one bill may have been j>assed in ignorance of and without reference to the other. This is more evident when we see that the act of June 24, makes the Secretary of State the custodian of the bond of Librarian. It is hardly supposable that the Legislature would, knowingly, give the Secretary of State the custody of the bond which was designed as an indemnity against his acts as State Librarian, when by another act passed at the same session, page 129, they fix his bond as Secretary at ten thousand dollars, to be approved by and delivered to the Treasurer of the State. Then again, amid something of a confusion of laws relating to Librarian, beside the act of June 22, page 86, Laws of Special Session 1867, making the Secretary of State Librarian and defining his duties as such, we have by section 5 of another act, page 129, same volume, another law declaring that the Secretary of State shall be State Librarian ex officio, and by next section the amount of bond for Secretary of State is fixed. There is no doubt in my niind whatever but the Legislature designed but one bond to be given to cover his acts as Secretary of State proper, and also his duties as Librarian.

But I confess I mistake the purport of the term ex officio ,-f McCallum, by virtue of his office, by his election, taking the oath of office, and giving the bond required as county clerk, is not entirely competent and entitled to discharge the duties as clerk of the District Court for Otoe county. Those duties are added to and imposed upon those who hold the office of county clerk. There is no loss of security arising from it. The bond required of county clerks is not to be less than throe thousand dollars, and may extend to ten thousand. In this case it was placed at six thousand, and the presumption is that it will be always fixed with reference to all the duties to be discharged. The bond heretofore required was but three thousand of the District Court clerk. It cannot be, as contended, that the bond given for the faithful performance of his duties as county clerk, will not extend to acts done as clerk of the District Court. That he may sign himself in one cáse as county clerk, and in another as clerk of the District Court, is an immaterial circumstance. His acts are all done under his election and qualification as county clerk, and his bond is given to cover any of them. As well might it be contended that the official bond of any officer is no security for the ■ want of faithful discharge of any additional duty which may from time to time be imposed upon such officer by law.

To settle any point which might again arise under this law, I have considered the broad question whether county clerks can be required to give any other bond than that given as county clerks before they can demand the right to exercise the duties of clerk of the District Court. This question is not fairly presented by the record in this case, and this point might have been dismissed, in my opinion, with that suggestion. It is alleged simply that McCallum, “failed and neglected,” to give the bond contended for; not that he refused so to do. For reasons, some of which I have already alluded to, it may have never occurred to McCallum, that any other bond than that given was required. The very conduct of the relator in accepting and acting for a time under a deputyship given him by the defendant, was calculated to induce that ignorance of such requirement; and before the court undertook to exercise the inherent right of supplying itself with a clerk when, none is provided, or before the relator can ask that McCallum be dismissed and himself be instated, it should appear, that by order of court or otherwise, McCallum was required to present his bond for approval, and that he refused so to do. I could not consent to see one driven from an office, in which the partiality of his fellow citizens had placed him, for innocently neglecting to meet a requirement of the law which, perhaps upon the sligthest intimation, would have been cheerfully complied with.

Some further point, if I understood counsel, was sought to be made, that the defendant has not alleged in his answer the making of a proper bond, as county clerk even. After setting out his election in October, 1869, as County Clerk of Otoe county, the defendants answer recites, the making of a bond signed by several persons named, “conditioned for the faithful performance, of all the duties required by law of said George R McCallum, in’ consequence of his said election.” This condition, I understand, is complained of as not being for the faithful performance of .his duties as County-Clerk, &c. As is the usual phraseology, I can hardly believe this point was urged with any confidence. If it were necessary to recite the giving of a bond at all, there can be no mistaking what is there set forth for any other effort to aver that fact. It would seem that none, but the wilfully blind, could fail to discover, that “the duties required by law in consequence of his said election” immediately following the averment of his election as county clerk, means the duties of county clerk. If it is susceptible of any other intei’pretation, it may be said to be ambiguous. That is not a cause for demurrer. The court may, in such cases, be asked to order the pleadings to be made more certain. — Olcott v. Carroll, 39 N. Y. 436.

The judgment of the court below overruling the demurrer, must be sustained.

Judgment affirmed.

Mason, Ch. J. dissented to that part of the above opin ion in regard to the bond of McCallum.