State ex rel. School District No. 6 v. Board of County Commissioners

| Neb. | Jul 15, 1880

Lake, J.

This is a petition in error for the reversal of a judgment of the district court sustaining a general demurrer to an alternative writ of mandamus.

It appears that the alternative writ was awarded by the judge of the court upon an application made to him at his chambers in vacation. "We presume that the judge, in entertaining the application, supposed he was given jurisdiction to do so by sec. 39 of the act to amend chapter 13 of the revised statutes, approved February 27, 1879, as this is the only statute from which such jurisdiction could possibly have been inferred. [Laws 1879, 90.] The portion of that section to which we refer is in these words: “ A judge of the district court may sit at chambers anywhere within his district for the purpose of * * * hearing an application for mandamus,” etc. In the use of this language it is evident to ns that the legislature did not suppose they were conferring upon judges at chambers an enlarged or additional authority, but simply providing for the exercise of that which they already had.

But even if we are wrong in this construction, there is a still stronger reason for holding that this amendment gives no additional jurisdiction to the judges of the district courts. It is this, that by a mere amendment of the act in question the legislature had no power under our present constitution to bring into it a new subject, and one which is entirely foreign to its title. Sec. 11, art. HI. of the constitution, declares that: “ 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amended unless the new act contain the section or sections so amended, and the section or sections so amended shall be repealed.” The act of 1866, to which this amendment was made, has a very restrictive title, it being simply “ Courts,” and was passed when no such limitation upon the discretion of the legislature in the enactment of laws as the foregoing existed. In view of that limitation it would hardly be contended by the merest tyro in the law that, under this title, the legislature could, by an original enactment, confer upon judges of courts during vacation any jurisdiction whatever. And if the legislature could not do this directly by means of an original act, surely it could not be done by an amendment of this one, wherein, with the single exception of the district court judges being by sec. 13 made conservators of the peace, there is not a solitary provision investing them with judicial power.

By reference to the act of 1866, Revised Statutes, 48 (General Statutes, 252), it will be seen that it relates chiefly to the jurisdictions of the supreme and district courts, fixing and regulating them, and that, except in the one matter before stated, there is not so much as the semblance of judicial power thereby given to the judges as such. It is true that they are given certain authority outside of their respective courts, but it is not judicial. For instance, by sec. 5 the judges of the supreme court could report their own decisions, or they might appoint a reporter for that purpose. And by sec. 9 they could appoint special terms of court; and, in certain contingencies, order adjournments of their courts from time to time. So, too, the district coui’t judges were empowered by sec. 15 to order special terms, and by sec. 23 to direct an adjournment of the courts. From this summary it will readily be seen that this amendment is not only not embraced within the title of the act amended, but is wholly foreign to all of its former provisions, and consequently in direct conflict with the constitutional provision above quoted. City of Tecumseh v. Phillips, 5 Neb., 305" court="Neb." date_filed="1877-01-15" href="https://app.midpage.ai/document/city-of-tecumseh-v-phillips-6642172?utm_source=webapp" opinion_id="6642172">5 Neb., 305. White v. The City of Lincoln, Id., 505. The State, ex rel. Jones, v. Lancaster County, 6 Id., 474. B. & M. R. R. Co. v. Saunders County, 9 Id., 507.

With these views of the amendment in question, we must hold that the judge, in awarding the alternative writ, acted without authority, and that the writ furnished no warrant for the subsequent action of the court thereon. The judgment is thei;efore reversed, and the case dismissed for want of jurisdiction.

Reversed and dismissed.