99 Neb. 527 | Neb. | 1916
Lead Opinion
By chapter 150, Laws 1913 (Rev. St. 1913, sec. 979), it was provided: “Counties having more than one hundred and twenty-five thousand inhabitants, shall be divided into five districts numbered respectively one, two, three, four and five, and shall consist of two or more voting precincts, comprising compact and contiguous territory and embracing, as near as.may be possible, an equal division of the population of the county, and not subject to alteration oftener than once in four years.”
In 1915 (Laws 1915, ch. 19) the legislature enacted a statute entitled “An act to amend section 979, Revise^ Statutes of Nebraska for 1913, relating to commissioner districts, and to repeal said original section.” The act provides: “Counties having more than one hundred and twenty-five thousand inhabitants, shall be divided into five districts numbered respectively one, two, three, four and five, and shall within the incorporated limits of any city of the metropolitan class or city of the first class in such county and within the territory comprised within two miles of such incorporated limits consist of two or more voting precincts comprising compact and contiguous territory and embracing, as near as may be possible, an equal division of the population of such cities and adjacent territory as hereinbefore provided and not subject to alteration oftener thdn once in four years: Provided, that all of the territory in such county outside the limits of such
Douglas county is the only county in the state having the specified number of inhabitants, and therefore is alone interested in this Controversy. Under the former statute the county had been divided into commissioner districts, and relator resided within the two-mile limit of the city of Omaha and in the third commissioner district, which embraced also a part of the territory without the two-mile limit. The relator applied to this court for a writ of mandamus to require the respondent, who is election commissioner of Douglas county, to “receive and file the nomination papers of your relator, and place his name upon the official primary ballot for the primary election to be held April 18, 1916, as a candidate for the nomination of county commissioner in the third commissioner district in Douglas county, Nebraska, as defined July 9, 1906.” The respondent appeared and answered the appli
Is the act of 1915 unconstitutional? The result of that act as applied to Douglas county is that there are four districts comprising Omaha and the territory two miles in width around the city, which contains over 18,000 ■voters, and the remaining district is a narrow strip around the outside of the two-mile limit, and contains only about 1,700 voters. This district is in two parts not contiguous. The relator contends that the statute is unconstitutional because it violates section 4, art. IY of the federal Constitution, which guarantees to every state a republican form of government, and' that it violates the first section of the fourteenth amendment, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and that it violates both express and implied provisions of the Constitution of Nebraska. It is contended that a I statute which so divides a county into districts that an I elector in one district has as much voice in the control off the affairs of the county as do three or four electors in' another district is unconstitutional. “The fact that a statute is within the letter of the Constitution is not sufficient. * * * An act which violates the true meaning and intent of the Constitution and is an evasion of its
In Newport v. Horton, 22 R. I. 196, 50 L. R. A. 330, it is said that all of the authorities except State v. Moores, supra, seem to be that a statute authorizing the governor to appoint a board of police commissioners for a city is not unconstitutional as interfering with the right of local self-government; “with the exception stated, not one has denied the general power of the legislature to assume the control of the local police.” In an extensive note (50 L. R. A. 330) it is contended that the court was in error in its construction of the laws of Rhode Island. The opinion of the court, however, is instructive. It distinguishes between police officers and governmental officers of cities and other divisions of the state. The court said:
*533 “Obviously this must depend upon the status of a police officer. In Kelley v. Cook, 21 R. I. 29, this court has recently decided that he is an officer appointed to perform a public service, and in appointing him the mayor and aldermen of a city merely exercised one of the functions of government in which the city had no special interest and from which it derived no special benefit or advantage in its corporate capacity. A city, therefore, in preserving the public peace or enforcing the laws within its borders, is not acting for itself or for its own inhabitants merely, but for the whole people; in other words, the state. * * * People v. Common Council of Detroit, 28 Mich. 228, involved the creation of a park commission, and again distinguishing the case from People v. Mahaney, 13 Mich. 481, the court held that the people of other parts of the state had no right to dictate to the city of Detroit what fountains it should build or what land it should buy for a park or boulevard, at its expense, for the recreation of its citizens. People v. Mayor of Detroit, 29 Mich. 343, was on the same subject. Robertson v. Baxter, 57 Mich. 127, related to the authority of a drain commissioner to act outside of his township. Wilcox v. Paddock, 65 Mich. 23, held that the legislature had no power to authorize a judge of probate of one county to assess benefits upon lands outside of his county for a local improvement. Board of Metropolitan Police v. Board of Auditors, 68 Mich. 576, held that the police commission of Detroit, paid for by the city, could not be assigned to duty in other townships. The Michigan cases therefore draw a clear line between local and state service.”
The court makes this distinction plain by quoting the following from Burch v. Hardwicke, 30 Grat. (Va.) 24, 38 (32 Am. Rep. 640): “The distinction recognized in all of them is between officers whose duties are exclusively of a local nature and officers appointed for a particular locality, but yet whose duties are of a public or general nature. When they are of the latter character they are state officers, whether the legislature itself makes the ap
In the case at bar we are dealing, not with' police officers of cities, but with counties and their government. County governments are local in their nature, and the Constitution protects them in their right of local self-government. “The legislature shall provide by law for the electioü of)| such county and township officers as may be necessary.” ' Const., art. X, sec. 4.
The Constitution makers had something definite in mind when they provided that county officers should be elected. If a statute should provide that the voters of one township should elect the county officers, that would noti; be the election that the Constitution intends. . If one block of the city with perhaps 20 or 30 votes was constituted a voting precinct and empowered to elect one of five members of the county board, and the remainder of the county divided equally into the four districts with power to elect the four remaining members, this, of course, would not be the election intended. Counties are by the Constitution and statutes given control of their own local matters. No one outside of the county is vitally interested in these matters, and every one in the county is interested equally with all others. To give them unequal powder in the local j government of the county violates the constitutional right of representation as plainly and in the same degree as un- ¡ equal representation in the state legislature or in.congress1 would violate the constitutional right of representation in public affairs. The first section of article I of our j Constitution declares that “all persons are by nature free j! and independent,” and have certain inherent and inalien- |1 able rights and that governments derive “their just powers from the consent of the governed.” The last section of
The courts have hesitated to attempt an exact definition of a republican form of government, but what constitutes equality before the law has been frequently considered. The supreme court of Kentucky said: “He has studied our Constitution in vain who has not discovered that the keystone of that great instrument is equality- — equality of men, equality of representation, equality of burden, and
In the same opinion the court said: “It is not insisted that the equality of representation is to be made mathematically exact. This is manifestly impossible.. All that the Constitution requires is that equality in the representation of the state which an ordinary knowledge of its population and a sense of common justice would suggest. We have not been referred to a more accurate or better description of the equality required by the Constitution
The supreme court of Michigan used similar language: “It was never contemplated that one elector should possess two or three times more influence, in the person of a representative or senator, than another-elector in another district. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in such matters lies at the basis of our free government.” Giddings v. Blacker, 93 Mich. 1.
It was suggested, on the one part, that the object of this legislation was to give the farmers in the outlying districts adequate representation on the board, and, on the other part, it was suggested that the motive was to remove this relator from the board where he had been a member, and to prevent the selection of a farmer residing within two miles of the city limits. This court will not inquire into nor consider the motives that may have actuated the legislature.
“There is no difficulty in making an apportionment which shall satisfy the demand of the Constitution. It is not the purpose or province of this court to inquire into the motives of the legislature. Courts will not discuss the motives of legislative bodies, except as they appear in the public acts or journals of such bodies. The validity of an act does not depend upon the motive for its passage. The duty of a court begins with the inquiry into the constitu
“In so far as a legislature keeps within the limits of powers in enacting laws its motives cannot be inquired into, and its discretion is not a subject for review in the courts; but whenever and to the extent that it transcends its powers, it is conclusively presumed that it intended to so transcend them, and parol evidence of good motives or other considerations are not allowed to obviate the effect of such unlawful intent. * * * Nor is evidence admissible, in support of such apportionment, to show that one district, with a less population than another, was given the same representation because of the excessive assessed valuation of property therein, and the nature and character of its population and business interests. The legislature has no power to disregard the standard of apportionment as fixed by the 'Constitution.” State v. Gunningham, 35 Am. St. Rep. 27 ( 83 Wis. 90).
All voters are equal before the law. The Constitution will not permit one class of voters to be given more power to determine the government than is given another class. If the purpose is to give adequate representation upon the board to the farming interests, no reason is perceived why it could not be done in this case without violating a fundamental principle of our form of government by giving one class of voters more power in the government than is given to another class. Since perfect equality is impracticable, there is no doubt that the legislature may exercise a.reasonable discretion in selecting the method of securing practical equality.
The supreme court of Illinois discussed at large the limits of legislative discretion in such cases in People v. Thompson, 155 Ill. 451, 481, and it was there held that, while the question whether the constitutional requirements have been applied at all is a question for the courts, the question “whether or not the' nearest practicable approximation to perfect compactness and equality has been attained is a question for the legislative discretion.”
From tliis it appears that that court was not considering a case in which one district had less than one-third of the population of any other district, and clearly that court Avould have considered that in such an apportionment “equality in population, above the minimum, had been disregarded and not applied at all by the legislature.” It is clear that in the statute we are considering the legis-' lature has arbitrarily divided this county into districts without any regard whatever to equality in population of; .; the district, and it must be considered that the controlling!:, . principle of equality before the laiv has not been applied1' at all. In this view of the case, the statute is unconstitutional and should be disregarded. The writ is
Allowed.
Dissenting Opinion
dissenting.
I dissent from the majority opinion because no provision of our ‘Constitution has been pointed out to which the act does violence, and it is the duty of the court to sustain
A few general principles of constitutional law should be kept in mind in considering this question.
A fundamental pxfinciple announced in Hallenbeck v. Hahn, 2 Neb. 377, is: “The Constitution of this state confers plenary legislative power upon the general assembly; and, if axi act is withixi the legitimate exercise of that power, it is valid, unless soxne express restriction or limitation can be found in the Coxxstitution itself.”
In the same case it was said (p. 397) : “This doctrine is elementary, is cardixxal, and arises out of the very nature of our form of government. With us, sovereignty resides with the people. Were they acting as a whole for themselves, there can be no doubt but this, or any other law that should receive a majority saxxction, would be conclusive. But, parceling out the exercise of their sovereign power to the three departments of government — the legislative, the executive, and the judicial — to the first has been committed, except what has been abandoned to the congress of the United States, the exercise of the whole sovereign law-making power as coxnpletely and absolutely as possessed by the people, subject only to such limitations as the people may have chosen to ixnpose. These limitations are set out in the state Coxxstitution.” .
The constitutional provision quoted in the xnajority opinion that “all powers not herein delegated are reserved
Where no limitation is expressed in the Constitution, “The framers of the Constitution relied for protection in this regard upon the wisdom and justice of the representative body and the accountability of its members to the people, rather than the restraining power of the courts of law. It is said that The courts can enforce only those limitations which the Constitution imposes, and not those implied restrictions, which, resting on theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.’ Cooley, Constitutional Limitations, 129. State v. McCann, 21 Ohio St. 198, 210.” State v. Board of County Commissioners, 4 Neb. 537.
It is also well settled that “A legislative act should not be declared unconstitutional, unless it is so clearly in conflict with some prosdsion of the fundamental laAv that it cannot stand.” State v. Nolan, 71 Neb. 136.
Has the act under consideration been shoAvn to be “so clearly in conflict with some provision of the fundamental laAv that it cannot stand?” Relator contends that the act Adolates section 4, art. IV of the United States Constitution, which provides that congress shall guarantee to-every state a republican form of government. The opinion discusses at some length the nature of a republican form of government. This is a political question, and is beyond the jurisdiction of the judiciary. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118. “There does not seem to be any case Avhicb is authority for the proposition that an act of the legislature of the state, ■with a republican form of government and so recognized by congress, can be held invalid under the provisions of article IY, sec. 4 of the Constitution.” Susman v. Board of Public Education, 228 Fed. 217.
In its control over the governmental agencies of the state, known as counties, wherein is the legislature limited by the Constitution? The Constitution provides s “The legislature shall provide by law for the election of such county and township officers as may be necessary.” Const., art. X, sec. 4. Under this provision the legislature could-not provide for the appointment of county officers.' While the Constitution directs that the legislature shall provide by law for the election of county officers, it has seen fit not to restrain the legislative discretion as to the number of county officers, their duties, their terms of office, nor their qualifications. Wherein does an act providing for the election .of county commissioners from districts into which the county is divided violate any constitutional provision? If the legislature has the power to provide that county commissioners shall be chosen from districts, has not the 'Constitution left the legislature free to exercise its own discretion in the matter? While not denying the authority of the legislature to create commissioner districts, the majority opinion holds that , the legislature, in doing so, must not do violence to the principle of “equality of representation,” - and cites People v. Thompson, 155 Ill. 451, Slate v. Cunningham, 83 Wis. 90,
The majority opinion quotes the discussion of the Kentucky court in Raglan v. Anderson, supra, upon the principles of “equality.” The Kentucky Constitution expressly provided that the state should be divided into senatorial and representative districts “as nearly equal in population as may be.” Since that decision the Kentucky court has held that, where a city council has authority to divide the city into wards and provide for the election of councilmen, “there being no constitutional or statutory provision requiring that such division be so made as to provide equal representation, the courts cannot interfere with the exercise of the legislative power so conferred by invalidating an ordinance so dividing the city into wards as to cause unequal representation.” Moore v. City of Georgetown, 127 Ky. 409. In an opinion containing a full discussion of the question, the court, among other things, said:
“It is true that fair representation and equal apportionment is a valuable privilege, and one that should be adhered to; but, when the legislative department of the state that created these municipalities and provided an elaborate plan for their government failed to adopt either directly or by implication any scheme to regulate or control them in the selection of their legislative boards, we do not feel that the courts are warranted in interfering with the discretion lodged in the people of these cities and their representatives whose duty it is to divide the city into wards. So far as our examination extends, in every in*544 stance in which the judiciary has undertaken to interfere with the legislative department of the state or its municipalities in the power of apportionment and representation authority direct or by implication has been found in the Constitution or the statutes. * * * Whilst the division of Georgetown into wards by the council and the allotment of representation is apparently unfair and unequal, we do not feel disposed to adjudge that it exceeded the power granted. Nor can we hold that it violates any fundamental principle of government.”
In Richardson v. McChesney, 128 Ky. 363, the Kentucky court also held: “A legislative apportionment of the state into congressional districts cannot be judicially reviewed, in the absence of a constitutional provision controlling-apportionment.” In the opinion the court said: “Except when limited by the Constitution of the state, the general assembly, especially in administrative and political affairs, is beyond the reach of the judiciary of the state. We have no authority to pass judgment upon its acts. In no case that has come under our notice have the courts undertaken to attempt to restrain the legislative departments, unless it violated some provision of the organic law of the state. * * * But in the matter of congressional districts we find nothing in our state Constitution to guide us. There is nowhere any limitation npon the power of the legislature, and it would be assuming authority this court does not possess if we undertook to control a coordinate department of the government in the performance of a power vested exclusively in it. It is not for the judiciary to question the policy, expediency, or propriety of laws enacted by the general assembly, unless they conflict with the Constitution.”
In Tennessee, where the Constitution provides for the election of justices of the peace in districts of the comities who shall constitute the county board, it was held that the court would not interfere with the action of the legislature in redistricting a county, “though the districts as laid off in- the statute are disproportionate in area, wealth, and
The Constitution of Michigan provides: “A board of supervisors, consisting of one from each organized township, shall' be established in each county. * * * Cities shall have such representation in the board of supervisors of the counties in which they are situated as the legislature may direct.” The legislature provided that the president of the village of Mackinac should be a member of the board of supervisors. This was claimed to violate the quoted provisions of the Constitution. It was argued that this act allowed a village to have the same representation on. the board as a city, and, further, that the act pro- • vided for more than one supervisor from each township. The court held the act valid, and said: “The necessity for the enactment of the statute becomes most apparent in the case of this village, when we take into consideration its geographical position with reference to other portions of
In Redell v. Moores, 63 Neb. 219, the doctrine on which the majority opinion is based, previously announced by this court in State v. Moores, 55 Neb. 480, that afi act might be unconstitutional as being in violation of the spirit of the Constitution, was definitely set aside. Speaking of the decision in State v. Moores, supra, it was said by Judge Sullivan, in State v. Kennedy, 60 Neb. 300, that, if the view that the spirit of the Constitution may be invoked to declare a law invalid ‘fis to be acquiesced in and accepted as a rule of construction, the Constitution of the state is to be fully known only by studying the theories of the judges who are chosen to expound it; it will expand or contract with every fluctuation of the popular will which produces a change in the personnel of the court; and the limitations upon legislative power will be as unknown and unknowable as were the rules of equity in the days when the chancellor’s conscience was the law of the land.”
The wisdom of the act is not for the court to determine, illalthough it clearly appears that there is good reason for ¡its enactment. The policy of dividing the county into districts is based on the supposition that members of the board ought to be familiar with the local needs of their constituents; that they ought to be in close touch with
The majority opinion is an unwarranted invasion of the power vested exclusively in the legislature, and cannot be reconciled with the provisions of our Constitution.
