6 Neb. 474 | Neb. | 1877
The question of township organization was submitted to the vote of the legal voters of Lancaster county, at the general election held on the sixth of November, 1877, and a majority of the votes cast on that question were in favor of such organization. But the county commissioners refused to complete the township organization as required by the act of February 13, 1877, and in their answer to an alternative writ of mandamus against them they deny that the township organization was adopted by a majority of the legal voters of the county, voting at said general election, and aver that the act is unconstitutional, inoperative, and void. By stipulation of the parties it is admitted that 2,451 legal voters of the county voted at the general election; that 952 votes were cast in favor of township organization and 601 votes were cast against such organization. It there
It is the province of a written constitution to establish fundamental maxims and fix rules of proceeding which are usually looked upon as material to be done, and to be regarded in the light of limitation upon the powers to be exercised; and therefore it is said that in the construction of a constitution “ its terms must be taken in the ordinary and common acceptation, because they are supposed to have been so understood by the framers and by the people who adopted it.” In Oakley v. Aspinwall, 3 N. Y., 568, Bronson, J., in reference to the construction of a constitution, said his “ rule had been to follow the fundamental law as it is written regardless of consequences,” and that “if the legislature or the courts undertake to correct defects by forced and unnatural construction they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another' which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just whatever the authority pleases to call them.”
In the application of these principles to the above provision of the constitution, it may be remarked, in the language of Emmot, JT., in People v. Lawrence, 36 Barb., 186, that “ it would be found upon full examination to be difficult to treat any constitutional provisions as
In the case of The People v. Brown, 11 Ill., 479., in the construction of a similar constitutional provision, the court say that it “ is free from all doubt or uncertainty. The language is clear and explicit, and admits of but one meaning. It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters of the county,” and that the right to organize depends on an affirmative vote of such majority. People v. Wiant, 48 Ill., 266. State v. Winkelmeier, 35 Mo., 103. County Seat of Linn County, 15 Kansas, 530.
In Bayard v. Klinge, 16 Minn., 249, it is held that when the constitution provides that a question must be submitted to a vote of “ the electors of the county,” and requires “ a majority of such electors voting thereon,” it means a majority of the electors who vote at such election, and not merely of them voting on the particular question. It is, however, true that in California, Ohio, and Wisconsin a different rule of construction has been adopted; but when these courts attempt to apply to the construction of constitutions the rules which distinguish directory and mandatory statutes, they certainly tread on very dangerous ground, and as observed by an eminent jurist, although there may be “very strong motives for declaring the law to be what it is not,” yet “it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether
No doubt, as in the courts referred to, there will always be some plausible reason for latitudinarian construction. It may be urged on the ground that some real or supposed evil may be avoided, or some real or supposed good may be obtained. But will not yielding to such influences gradually undermine and finally overthrow the constitution? Indeed, if legislatures and courts may, under such rule of construction, “depart from what is plainly declared in the constitution, the people might well despair of ever being able to set any boundary to the powers of the government.”
I think that section five, article X, of the constitution must be construed according to the plain meaning of the words used, and that the language employed therein is mandatory; and therefore, as the affirmative vote on the question submitted was less than a majority of all the legal voters, voting at the general election, the proposition to adopt township organization was defeated.
The second question raised by the answer is, whether the act is unconstitutional, inoperative, and void. The constitution declares that “ no bill shall contain more than one subject, and the same shall be clearly expressed in the title.” This provision is mandatory; and according to the whole current of authorities, it seems clear that it not only requires the purpose of the act to be correctly indicated by the title, but that it must control the effect and operation of the law, and exclude every thing which is not within the purpose indicated by the
Another principle in the interpretaion of a constitution is, that presumptions will always be in favor of the constitutionality of the law, when its object and provisions are within the acknowledged powers of the legislature'; and therefore the power of the courts to declare a legislative act a nullity because it infringes on the constitution should be “ exercised with extreme caution, and never when a serious doubt exists as to the true interpretation of the provision alleged to be repugnant.” But the court is required to declare what the law is in the case which comes before it; and hence if the legislative department infringe the constitution in such case, the duty of the court, though it may be delicate and unpleasant,.is a plain one, regardless of consequences. It is the duty of the court to regard the constitution, which is the fundamental law and superior to the ordinary act, and the constitution, and not such ordinary legislative act, must govern the case to which both apply. These general rules are deduced from the authorities, and seem to be well-established principles in the construction of statutory law; and with these in view, the act in question will be examined.
The title to the act is “An act to provide for township organization.” This .title is very restrictive; it includes only township organization, and it will not be urged that the court can enlarge the scope of the title. On the contrary, it is said that “ the constitution has made the title the conclusive index to the legislative intentas to what shall have operation,” and as the legislature “ may
Now notwithstanding the very restrictive terms of the title to the act in question, yet it not only contains provisions in regard to township organization, but it also provides for county organization and defines its corporate powers; it determines the number of county officers, defines their duties, provides for their election, and limits the terms of their respective offices, and it also materially amends and changes the general revenue laws; and all these various subjects of legislation are contained in the body of the law, and are so intermixed and connected that all those portions of the act not embraced within or indicated by the title “ cannot be rejected and leave a complete and sensible enactment which is capable of being executed.” Indeed the second section of the act makes the whole law but one system, for it provides that the county voting in favor of township organization “shall be governed by and subject to the provisions of this act.” In Mewherter v. Price, 11 Ind., 200, the title to an act was, “ an act concerning promissory notes and bills of exchange,” and the court say: “We have seen that the title to the act under consideration is limited to promissory notes and bills of exchange. Its language is very explicit, and we know of no rule of construction by which it can be extended as to embrace instruments of writing other than those which it expressly names.” So in the case at bar, the title is limited merely to township organization, and there is no rule of construction by which it can be enlarged so as to embrace the other subjects contained in the law, and not expressed or fairly indicated in the title.
The writ of mandamus must be denied.
Writ Denied.