104 Neb. 273 | Neb. | 1920
Lead Opinion
Mandamus to compel the secretary of state to file a referendum petition upon Senate File No. 2, enacted at the 1919 session of the legislature, and known as the “Code Bill,” which petition the secretary of state refused to file, on the ground that there was not attached to the Various sheets or sections of the petition a “full and correct copy” of the enacted law. . Relators appeal from a judgment sustaining the secretary.
Section 2335, Rev. St. 1913 (amended, Laws 1919, ch. 86), is in part as follows: “The following shall be substantially the form of petition for ordering'the referen
“Petition for Referendum.
“To tbe Honorable-, Secretary of State for the State of, Nebraska: "We, the undersigned citizens and legal voters of the state of Nebraska and the county of---, respectfully order that the Senate (or House.) Bill No.-entitled (title of act, and if the petition is against less than the whole act then set forth here the part or parts on which the referendum- is sought),” etc.
The petition in controversy complied in all respects with this provision of the law, showing title of the act, but did not have attached to it a copy of the law.
Section 2336 gives the form of petition for proposed legislation by initiative. This section requires the proposed law to be set forth in the petition, or attached to it.
Section 2337 provides in part as follows: “Every such sheet for petitioners’ signatures shall be attached to a full and correct copy of the title and text of the law or amendment to the Constitution so proposed by the initiative petition,- but such petition may be filed with the secretary of state in numbered sections for convenience in handling, and referendum petitions shall be attached to a full and correct copy of the measure on which the referendum is demanded and may be filed in numbered sections in like manner. Not 'more than twenty signatures on one sheet shall be counted. When any such initiative or referendum petition shall be offered for filing, the secretary of state, in the presence -of the governor and the person offering the same for filing, shall detach the sheets containing the signatures and affidavit and cause them all to be attached to one or more printed -copies of the measure so proposed by initiative petitions, or of the act or part of an act against which referendum petitions are filed.”
Relators cite our opinion in Bartling v. Wait, 96 Neb. 532, as decisive of the question in dispute. The respond
It is to be observed that to secure intelligent petitioning the need for an attached copy is not at all the same when referring legislation as when initiating it. In the one instance, the voter presumably knows the law and is informed, except in cases where only a portion of the law is being referred, and, if not, can get exact information. In the other, presumptions are to the contrary. This distinction is recognized in the constitutional amendment itself; the section providing for initiative requiring an attached copy of the proposed law, which requirement is omitted from the section providing for a referendum.
Bearing upon the question of the construction of the statute, we have to consider also the language of the initiative and referendum amendment to the Constitution as follows: “This amendment shall be self-executing, but legislation may be enacted especially to facilitate its operation.” Const., art. Ill, sec. ID. Under this provision, legislation permissible must be such as frees the operation of the constitutional provisions from obstruction or hindrance. Any legislation which would hamper
In view of the constitutional provisions and of our decision in Bartling v. Wait, supra, we have reached the conclusion that section 2337 is inapplicable to the form of the petition circulated; that it is unnecessary that each sheet for referendum petitioners’ signatures have attached to it a true copy of the act; that in this particular it is a sufficient compliance with section 2337 that the referendum petition, taken as a whole, which includes all of the various sheets, have attached to it, when offered for filing, a full and correct copy of the measure. This was done in the instant case.
Laws to facilitate the operation of the amendment must be reasonable, so as not to unnecessarily obstruct or impede the operation of the law. -Á law requiring a full copy of a 461-page act to be attached to each sheet would be unreasonable and unnecessarily obstructive. In practice it has never been thought necessary, in submitting a law to the voters, that a full copy of it should be attached to the voter’s ballot. Accordingly, section 2340 of the act requires the ballot title to contain only an impartial statement of the purpose of the measure to be prepared by the attorney general. Such legislation, for
The amendment under consideration reserves to the people the right to act in the capacity of legislators. The presumption should be in favor of the validity and legality of their act. The law should be construed, if possible, so as to prevent absurdity and hardship and so as to favor public convenience.
Relators in their brief devote an argument to the proposition that “under our Constitution and laws the secretary of state is a ministerial officer, without power to exercise judicial functions, and that his duties relative to referendum petitions are strictly defined by statute. Of course, this is true; but, holding as we do that the petition should have been filed, we deem it unnecessary to enter into a discussion of this question, as applied to the facts and circumstances of the ease in hand.
Respondent in his brief calls our attention to a provision in section 2339 of the statute,.as follows, “Either party may appeal to the supreme court within ten days after a decision is rendered,” and-suggests that the action should be dismissed for want of jurisdiction. ,It appears that judgment was entered August 2; motion for a new trial overruled August 5; and transcript filed in this court August 19. It appears further that on October 24 the parties stipulated in this court that the case should be advanced for hearing £ £ upon its merits. ’ ’ Afterwards, respondent procured time for preparing and filing briefs. We are of opinion that this suggestion, based upon a provision which is more or less in the nature of a statute of limitations, coming after stipulation for hearing upon the merits and after having subjected the opposing party to the costs incident to preparing briefs, may and should be disregarded. This' question might have been raised by plea or motion to dismiss for want of jurisdiction,
The judgment of the district court is reversed.. It is further ordered that a writ of mandamus issue out of this court, requiring respondent, as secretary of state,'to accept and file the referendum petition tendered, detaching sheets containing signatures, and otherwise proceeding in accordance with the statute and the law as laid down in this opinion.
Reversed.
Rehearing
The following opinion on motion for rehearing was filed June 29, 1920. Former judgment vacated, and appeal dismissed.
In our former opinion in this case, ante, p. 273, the facts are sufficiently set forth to an understanding of the controversy, and need not be repeated here.
Upon our initiative a reargument has been had addressed solely to the question of the jurisdiction of this court. The respondent contends that we are without jurisdiction of the subject-matter, for the reason that no transcript of the proceedings was filed with the clerk of this court within the time prescribed by law, and that the filing of such transcript within the time prescribed is a necessary precedent to our jurisdiction. The respondent relies upon the provisions of the statute affecting appeals in eases arising under the act for carrying into effect the initiative and referendum powers reserved by the people (Laws 1913, ch. 159), and particularly upon a portion of section 5 thereof. This provision of the law is referred to in the argument as section 2339, Rev. St. 1913, which has been repealed by chapter 86, Laws 1919, retaining, however, the exact language found in the original section, viz.: “Either party may appeal to the supreme court within ten days after a decision is rendered.” The order of the district court from which the appeal was taken was entered August 5, and the transcript of the proceedings filed with the clerk of this court on August 19. — some 14 days after the final order. In our former opinion we held that the question of jurisdiction might have been raised by a plea or motion to dismiss, but as this was not done, and the parties had stipulated to advance the case and try it “upon its merits,” and the parties had gone to the expense of printing briefs, that the objection to the jurisdiction would be deemed to have been waived. In support of this view, we cited Lloyd v. Reynolds, 26 Neb. 63, and Patterson v. Woodland, 28 Neb. 250. Upon a reconsideration of the question of our jurisdiction, we have become convinced that the position taken in our former opinion is wrong. Except in the class of cases mentioned
“The foregoing did not excuse the failure to file a certified transcript of the pleadings and judgment within the statutory period, since it only purported to waive the filing of the bill of exceptions out of time. Moreover, jurisdiction of the subject-matter cannot be con-' ferred by the stipulation or agreement of parties. The*282 statute is mandatory as regards the time of taking appeals and proceedings in error, and the time for doing so cannot be extended by agreement of the parties. # * * We are aware that this statement is opposed to Allis v. Newman, 29 Neb. 207, but the decision therein is in conflict with the numerous adjudications of this court in other cases. See Sturtevant v. Wineland, 22 Neb. 702; Schuyler v. Hanna, 28 Neb. 601; Omaha Loan & Trust Co. v. Ayer, 38 Neb. 891; Fitzgerald v. Brandt, 36 Neb. 683; Moore v. Waterman, 40 Neb. 498; Record v. Butters, 42 Neb. 786; Renard v. Thomas, 50 Neb. 398. The decisions in these cases are followed, and that in Allis v. Newman, supra, disapproved.”
In Koch v. State, 73 Neb. 354, the transcript was not filed within the statutory time allowed for appeals. The question of jurisdiction was raised in the brief. In commenting upon the question of jurisdiction the court said:
“So it is clear that we are without any jurisdiction to review the proceedings and judgment of the trial court herein. This is to be regretted, for the reason that the sentence in- this case seems so excessive, considering the value of the property alleged to have been stolen, as to be almost unconscionable. If we were at liberty to assume jurisdiction of this case, we would, under the power given us by section 509a of the Code, reduce, the sentence .to a period of two years. Having no jurisdiction, we cannot grant the accused any relief, and he must resort to executive clemency.?’
In the case of Dirksen v. State, 86 Neb. 334, briefs were filed by both parties. The court of its own motion dismissed the proceedings in error because the transcript was filed after the time limited by law. It will thus be seen that we have uniformly held that jurisdiction of the subject-matter cannot be conferred by stipulation or consent of the parties, nor does the filing of briefs constitute a waiver. Nothing but the filing of a transcript in this court, within tJie time prescribed can vest this court with jurisdiction of the subject-matter.
Lloyd v. Reynolds, 26 Neb. 63, is readily distinguishable from the present case. In that case the transcript and petition in error were filed within the year (the time then prescribed), and the court would have jurisdiction of the subject-matter. After the year expired the parties stipulated waiving the issuance and service of summons. It was said: ‘ ‘ The transcript and petition in error were properly filed in the court within the year, and the defendant could lawfully enter his appearance herein after the expiration of that time.”
In Fromholz v. McGahey, 85 Neb. 205, it is said: “We have uniformly held that filing an unauthenticated transcript of a judgment of the district court did not give us jurisdiction of the controversy, but that the terms of the statute must be observed and a certified transcript of the judgment filed within the time limited by law. ’ ’ See, also, Snyder v. Lapp, 59 Neb. 243; McDonald v. Grabow, 46 Neb. 406; Moore v. Waterman, 40 Neb. 498. While it is a fact that in a few cases decided since the doctrine of Allis v. Newman was overruled it has been intimated that the default of an officer of the court might warrant an extension of time for filing an appeal, an examination of these cases discloses that such statements are merely inadvertent expressions and pure dictum, and it may further be said that since the decision in Stull v. Cass County, 51 Neb. 760, no appeal has ever been held in this court, unless the transcript was filed within the statutory time. To hold otherwise would be illogical. There is in this case no pretense that the relator was prevented from filing his transcript by the fault of any officer of the court.
The relators seek to avoid the effect of the provision of the statute, “Either party may appeal to the supreme court within ten days after a decision is rendered, ’ ’ by urging that the word “may,” as used therein, is permissive, and not mandatory. In view, however, that this provision relates t( matters for carrying out the provisions of the initiative and referendum laws — which of necessity must be voted upon at fixed dates — and the further fact that the act provides that . “all such suits shall be advanced on the court docket and heard and decided by the court as quickly as possible,” convinces us that it was the intention of the legislature that such suits should be speedily determined and to aid this purpose the time in which an appeal could be taken to the supreme court was limited to ten days. This legislative intent can best be carried out by construing the word “may” as “must,” and as imposing a duty rather than conferring a privilege. If it is to be construed in the sense of a permissive act, we can see no useful purpose which the clause quoted subserves. Under the general law pertaining to appeals, the party appealing has three months in which to file his transcript, but he may file it at any time after the judgment within the three months’ period. The legislature undoubtedly had some purpose in putting into the section the clause quoted, and we have no doubt that the purpose was to limit the time in which the appeal could be taken in case.s arising under the provisions of this chapter. In Kelly v. Morse, 3 Neb. 224, it is said: “The word ‘may’ in public statutes should be construed as ‘must’ whenever it becomes
The relators also contend that this court has jurisdiction of the subject-matter by virtue of its powers of original jurisdiction in cases of mandamus. While it is true that this court is given original jurisdiction in mandamus, it is also true that the district court has concurrent jurisdiction in that class of cases, and that from the judgment of the district court an appeal lies to this court. The real question here is whether this is an appeal from the judgment of the district court, or an original action in this court. All of the proceedings of the district court are set out in the transcript, including' the judgment, overruling of the motion for new trial, and the settling of a bill of exceptions. The case is docketed in this court as an appeal. There is no application for a writ to issue from this court, which would be the practice if this were an original case, and nowhere, except in the argument, is there any pretense of invoking the original jurisdictional powers of this court. As we view it, there is no question but that this action invokes the appellate jurisdiction of this court, as distinguished from its original jurisdiction.
It is urged by relators that the provision of the statute above quoted, limiting the time in which an appeal should be taken, is unconstitutional, for the reason that the title of the act was not broad enough to cover that provision.
The title is as follows: “An Act to provide for carrying into effect the initiative and referendum powers reserved by the people in sections 1,, 1A, IB, 1C, and ID of article III of the Constitution of the state of Nebraska; to regulate elections thereunder; to provide for a publicity pamphlet; to make it a felony to violate certain provisions of this act and to provide penalties therefor. ’ ’
procedure provided is incidental and germane to the general object sought to be attained. Cathers v. Hennings. 76 Neb. 295; State v. Power, 63 Neb. 496; Stewart v. Barton, 91 Neb. 96; State v. Ure, 91 Neb. 31; Robinson v. Kerrigan, 151 Cal. 40; Gay v. District Court, 41 Nev. 330, 3 A. L. R. 224; People v. Crissman, 41 Colo. 450; Adams v. Iten Biscuit Co., 162 Pac. (Okla.) 938; 36 Cyc 1017.
It follows from what has been said that our former judgment should be vacated, and the appeal dismissed for want of jurisdiction. .
Former judgment vacated, and appeal dismissed.
Dissenting Opinion
dissenting.
The sole question before us now is whether a constitutional amendment that was adopted in 1913, and that made the initiative and referendum principle of govern
This is a proceeding in mandamus in which the district court and the supreme court are by the Constitution clothed with concurrent jurisdiction. Hence, under' the facts in the present case, the question of jurisdiction may not be of so supreme and controlling importance, except in a technical sense, as may perhaps be made to appear in the opinion of the majority. This dissent is not based on the ground of concurrent jurisdiction. There seems to he controlling force, however, in the suggestion that the ten-day provision for appeal in chapter 159, Laws 1913, as amended by chapter 86, Laws 1919, is not exclusive, but is merely, cumulative. Section 8186, Rev. St. 1913, as amended by chapter 140, Laws 1917, provides generally that an action may be appealed in three months, but it does not of course prevent an appeal from being perfected in ten days or in any number of days within three months. Except on the clearest ground, the court should not dismiss an action for want of jurisdiction of the subject-matter, and especially when a constitutional question is involved wherein the people have reserved the “power at their own option to approve or reject at the polls any act, item, section, or part of anv act passed by the legislature.” Const., art. Ill, sec. 1. ’
Subsequent to the adoption of the present Constitution, and from time to time as need arose, amendments were added which contain no language that is not clear
Subjects that are undisclosed in the title of a legislative act are called “jokers.” There are no “jokers” in a Constitution. It obeys the scriptural injunction. Its language is: “Yea, yea; and nay, nay.” A “joker” is sometimes the offspring of a careless or a trustful legislature, and therefore it at times finds its way into an act by chance or by accident. Plainly speaking, there are two “jokers” in the act here in question. Both are referred to in this dissent, though but one is directly involved here, merely to show “a continuing course of conduct.” One reads: “The district court of Lancaster county shall have jurisdiction in all cases of laws, parts of laws or initiative amendments to the Constitution with amendments to be submitted to the electors of the state at large.” Laws 1913, ch. 159, sec. 5 (Rev. St. 1913, sec. 2339). With respect to the above-quoted language, it may be observed that it does not clearly appear by what constitutional right or authority the legislature presumes at all to confer jurisdiction of the subject-matter herein upon one district court to the apparent exclusion of all other district courts. It is obvious that the.intention was to confer exclusive jurisdiction; otherwise the act would have been silent on this point. But, altogether aside from that, the question respecting jurisdiction is an independent “subject.” Will it be contended that it is “clearly expressed in the title” or that it is at all referred to therein? If the right so to confer jurisdiction and so to legislate can be found in any Ian
The other reads: ‘ ‘ Either party may appeal to the supreme court within ten days after a decision is rendered.” That sentence covers the subject in the act that is directly involved here, and, unless it may be held to be “cumulative,” the statute in which it occurs seems clearly to violate this language of the Constitution, namely: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title. And no law shall be amended unless the new act contain the section or sections so amended and the section or sections so amended shall be repealed.” Const., art. TTT, sec. 11.
The title of the act under discussion follows: “An act to provide for carrying into effect the initiative and referendum powers reserved by the people in sections 1, 1A, IB, 1C, and ID of article III of the Constitution of the state of Nebraska; to regulate elections thereunder ; to provide for a publicity pamphlet;. to make it a felony to violate certain provisions of this act and to provide penalties therefor.” The title refers to the regulation of elections; to the provision for the issuance of publicity pamphlets; to the provision that makes a violation of the act a felony and that a penalty is provided. But no reference is made in the title, by number or otherwise, to chapter 140, Laws 1917, that being the general law regulating appeals, and which the act in question purports to amend. The latter act provides that an appeal may be prosecuted to the supreme court in three months. The act in question provides for a reduction in time, for an appeal in this class of cases, to a period of ten days, and this it does without at all referring to chapter 140, Laws 1917'. A new “statute of limitations” by the amendment of an important “practice act” is created without any reference thereto in the title and without any reference thereto in the body of the act. There is nothing in the title to
In view of the waiver of jurisdiction, entered into by the parties hereto prior to the former decision, it is doubtful if the distinguished counsel on either side knew of or were advised of the ten-day amendment until after, the appeal was well along and was about to be argued. I do not agree with the statement in the opinion of the majority, namely:- “It is apparent that the law proposed had one general subject, and that subject is clearly expressed in the title.”
As pointed out in the former opinion, the case was advanced for hearing upon the merits. Afterwards, respondent procured time for preparing and filing briefs. In that state of the record we held that, the relator having been subjected by the respondent to the costs incident to preparing briefs and the like, the motion to dismiss should be disregarded. State v. Amsberry, ante, p. 273. Our conclusion and the opinion then adopted were right, and even if not based strictly on all of the grounds therein stated, as now held by a majority of the court, then on other grounds that cover the issues involved and that appear to be sound.
. The Constitution provides: “This amendment shall be self-executing, but legislation may be enacted especially to faciliate its operation.” Const., art. Ill, sec. ID. The imperative “shall” and the permissive “may” as used in the same sentence are significant. They appear to have been used in their ordinary and popular sense, and, as though by the foresight of a seer, with the view of hedging about with safeguards the vital principle of the “initiative and referendum” and of preserving its “self-executing” feature, to the end that the principle itself be not destroyed. Until that supreme law, so adopted, is modified by its masters, its command is supreme, and of course must be obeyed by all persons alike. The Constitution of a state is the composite voice and the supreme law of its people. From time immemorial
The application of the principle of the initiative and referendum to the affairs of government is comparatively new. There are those who say it is only an experiment in self-government that has not yet been tried out, and that not all are agreed as to its merits. Even so, that question cannot be decided- here. Except on the clearest ground there should be no. deprivation of the people’s right to the constitutional “power” that they “reserve to themselves * * * at their own option to approve or reject at the polls any act, item, section, or part of any act passed by the legislature.” Const., art. Ill, sec. 1. They were not so deprived in the former opinion. Hence, I dissent from the present opinion of the majority.