85 Neb. 375 | Neb. | 1909
Lead Opinion
This is an action in quo warranto, commenced in this court, attacking the validity of house roll No. 286, passed by the legislative assembly of 1909, approved by the governor on the 1st day of April of that year, and to oust the respondents from exercising the powers, rights, duties and franchises of members of the board of education of the state normal schools. The information sets forth the law as it existed before the passage of the amendments contained in the act above described, the statutes as amended thereby, the passage and approval of the amendatory act, the appointment of the respondents by the governor thereunder, and their confirmation by the senate, and challenges the constitutionality of the amendatory act for the alleged reason that it w¿is passed in violation of section 11, art. Ill of the constitution of this state. It also sets forth the ineligibility of the respondent Majors to become a member of the board, because at the time of his appointment he was a member of the legislature which passed the amendatory act in question, and concludes with the usual prayer of ouster against all of the respondents. A demurrer was filed to the information on two grounds: First, that the facts stated therein are not sufficient to constitute a cause of action; and, second, that two causes of action are improperly joined. The cause has been submitted on the demurrer, and, it being the desire of the relator to test the validity of the amendatory act, that question will be first considered.
It appears that in 1881 the legislature passed an act (laws 1881, ch. 78) entitled “An act to establish a system of public instruction.” This entire act was by the compiler carried into the successive Compiled Statutes as
The relator’s first contention is that the title .to the bill is insufficient; that it violates the provisions of section 11, art. Ill of the constitution, which reads as follows: “Every bill and concurrent resolution shall be read at large on three different days in each house, and the bill and all amendments thereto shall be printed before the vote is taken upon its final passage. 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amended unless the new act contain the section or sections so amended and the section or sections so amended shall be repealed.” It is argued that, where the title to the bill is to amend a particular section of an existing law', no amendment is permissible which is not germane to the subject matter oí
It is further insisted that the amendatory act contains two subjects; that it changes the name of the board, and places the junior normals under its control. It appears that the original act of 1881., in which no mention is made of junior normal schools, was supplemented by the act of 1903, which provides for schools of that kind, and makes them a part of our system of public instruction; and it would therefore seem to be not only competent, but entirely proper, for the legislature to place them under the supervision of the normal board of education by an amendment to the proper section of that act, for the junior
The relator also insists that the act in question, in effect, amends 16 other sections of subdivision XIII, ch. 79, as found in the Compiled Statutes of 1907; that the sections so amended are not included therein, and said sections are not repealed, and it is therefore violative of the clause of the section of the constitution above quoted. In Farrell v. State, 54 N. J. Law, 421, it is said: “The effect of an amendment of a section of the law is not to sever it from its relation to other sections of the law, but to give it operation in its new form as if it had been so drawn originally, treating the whole act as a harmonious entirety, with its several sections and parts mutually acting upon each other.” Now, it is apparent that sections 2 to 16 do not require, nor have they suffered,- any change by the amendments. Now, as before the amendment, they refer to the board created by section 1. As the act amends the section which created an educátional board, and places the normal schools under its control, it must be presumed that the legislature merely intended to amend the name of the existing board.. The original section did not purport to give the existing board a specific name. It is merely referred to as the board of education. It would have been proper, as above stated, to give it the name of normal board of education in the original section, and the rule laid down in Richards v. State, supra, would allow the legislature to give it this name by the amendment. Had the original section conferred upon the board the name of “Normal Board of Education,” no change in the language of sections 2 to 16, inclusive, would have been required. Those sections do not purport to create' the board or give it a name. They merely enumerated the powers possessed by the board as created by the first section. Any language indicating that the board upon which the powers , were conferred is the board mentioned in the
It appears, hoAvever, that prior to 1909 it was the policy of the legislature to commit to the state superintendent of public instruction the location and complete management of the junior normal schools. To that end section 21 of the statute as it stood before the passage of the act in question located schools at Alliance, McCook and Valentine, respectively, and the state superintendent of public instruction was specifically authorized to. locate not to exceed five, nor less than two, additional schools at such places in the state as might seem proper to him. That section, preceding the amendment of 1909, also provided: “At each place where a junior normal school is established the public school buildings, text-books and apparatus of the public school district shall be placed at the serA’ice of the state, without cost, under the jurisdiction of the state superintendent of public instruction. In each county where a junior normal is established not less than three-fourths of the. entire institute fund shall be used by the state superintendent of public instruction toward defraying the expenses of such junior normal schools.” Section 22 provided: “The organization and management of said junior normal schools shall be under the jurisdiction of the state .superintendent of public instruction, and he shall select the principals and the instructors for said schools, and shall make and complete all other arrangements for the successful operation of said schools.” The legislation as originally enacted was harmonious and placed the state superintendent in complete control of every detail of the operation of junior normal schools. Now, the amendatory act of 1909 does
It may be said that the new board and the superintendent can act in harmony under the law. But, if they do not, who will prevail? The law gives the superintendent possession and custody of all things other than money necessary for the operation of the junior normal schools, and he is responsible to the respective school districts for the buildings, books and apparatus. To properly discharge his duties he may make all reasonable rules for the use by the students and teachers of such property. If his
Again, in another material respect the act violates the constitutional provision that “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. Ill, sec. 11. The state normal school at Peru and the state normal school at Kearney were created and are governed by two separate and independent acts passed at different sessions of the legislature. By means of the act in question the legislature has attempted to amend both of these independent acts by the amendment of one of them alone. In other words, by a single bill purporting to amend only one section of the act creating and governing the state normal school at Peru, the legislature has attempted to amend the other independent act creating and governing the state normal school at Kearney. The statute demonstrates this prop
It thus appears that the Peru and Kearney normal schools are governed by independent acts, each containing the foregoing provision, and neither is dependent on the other. The legislature in passing the Kearney normal school act inserted bodily therein by reference the provisions governing the normal school at Peru. In other words, the foregoing section is the statute governing the Peru normal, and by reference or construction is also the independent, governing statute of the Kearney normal. The two statutes are separate and apply to different institutions, and the repeal or amendment of one does not repeal or amend the other. The law establishing this proposition is universal. This court in Shull v. Barton, 58 Neb. 741, approved the following language from Endlich, Interpretation of Statutes, sec. 492: “Where the provisions of a statute are incorporated, by reference, in another; where one statute refers to another for the powers given or rules of procedure prescribed by the former, the statute or provision referred to or incorporated becomes a part of the referring or incorporating^ statute; and if the earlier statute is afterwards repealed, the provisions so incorporated, the powers given, or rules of procedure prescribed by the incorporated statute obviously continue in force, so far as they form part of the second enactment.” When the legislature convened in 1909, therefore, the Kearney normal school, by an independent statute governing that institution, was controlled by a
The legislature of 1909 repealing the governing section of the Peru normal did not therefore repeal the independent, governing section of the Kearney normal. It is just as certain that the attempt'to amend the Kearney normal school act by an amendment of the Peru normal school act Avas equally futile. The rule applicable has been stated as follows: “An act which declares that the proAdsions of a special act shall apply to another city than that for which it Avas passed lias not the effect of making subsequent amendments, to the original act applicable to the second city. * * * Knapp v. City of Brooklyn, 97 N. Y. 520.” Black, Interpretation of LaAvs, ch. 13, sec. 132. For example, if the amendatory act of 1909 be sustained, it will be possible for the legislature in passing a charter for the city of Lincoln to insert therein by reference the governing provisions of the' Omaha charter and by a subsequent amendment of the last named charter change the form of government of the city of Lincoln and abolish its offices, without making any reference whatever to the Lincoln charter. Such amendments are surreptitious legislation, which the constitution condemns, and they cannot be sanctioned. The act in question is a plain, direct and unmistakable violation of the constitu
It was suggested in consultation that the point last above mentioned was not presented on the argument or in the brief of the relator, and therefore should not be considered. • The answer to the suggestion is that this is an action on behalf of the state brought by the attorney general to test and determine the question of the validity of the statute in order to further the educational interests of the state, and, if for any reason we are convinced that the statute is unconstitutional, we ought to so determine; for, if the courts can, under such a pretext, nullify the constitution, we will soon find ourselves openly defying the provisions of the fundamental law which we have solemnly sworn to uphold.
For the foregoing reasons, we are constrained to hold that the amendatory act in question is void; the demurrer of the respondents is therefore overruled, and the writ of quo warranto prayed for by the relator will issue.
Judgment accordingly.
Concurrence Opinion
concurring.
To my mind Judge Barnes demonstrates that the legislature could not change the provisions of the act governing the state normal school at Kearney by a bill limited to the sole purpose of amending the act governing the state normal school at Peru, without violating the constitutional provision that “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. Ill, sec. 11. That the legislature of 1909 attempted to change the management of the state normal school at Kearney in the manner stated is in my judgment shown in unmistakable terms on the face of the amendatory act itself. By amendment of a single section of the Peru normal school act there is an attempt to wrest from the present board of education and transfer to a newly created “Normal Board of Education” the entire control and management of the Kearney normal school. The -act purporting to amend only the Peru normal school act declares: “There is hereby created a board to be known as ‘The Normal Board of Education,’ which board shall lime control and direction of the normal education of the state, including normal schools and junior normals, and which board shall succeed to and taha the place of mid exercise the powers of the present ‘Board of Education” Comp. St. 1909, ch. 79, subd. XIII, sec. 1. It was therefore the intention of the lawmakers, as declared by their language, to change the management of the Kearney normal school by an amendment of the Peru normal school act. The members of the normal board of education appointed under that amendment of the Peru normal school act understand by it that they have authority under it to take charge of the school at Kearney, and are attempting to do so. One of the purposes of this suit is to prevent them from managing and controlling that school. The opinion prepared by Judge Barnes shows conclusively that the amendatory act is void in so
I am unable to discover in the amendment any valid provision, and I agree that the writ should issue. .
Concurrence in Part
concurring in part, and dissenting in part.
In most respects I agree with the holdings in the opinion of the majority of the court. While I think the act of 1909 is defective, and in some respects vicious and reprehensible legislation, I am not fully convinced that the legislature has gone beyond its power under the constitution. I agree that under the authorities cited in Shull v. Barton, 58 Neb. 741, and in Sika v. Chicago &
This rule being the established and well-recognized law of this country and of this state, it remains for us to inquire as to its applicability to the acts of the legislature under consideration. The act creating the state normal school at Peru was passed in 1867, and took effect June 20 of that year. The title of the act was “An act to locate, establish, and endow a state normal school.” The first section provides: “That a state normal school be established at Peru, in Nemaha county, Nebraska, the exclusive purpose of which shall be the instruction of persons, both male and female, in the arts of teaching,” etc. Further provisions of this section need not be here noticed. Section 2 is as follows: “The said normal school shall be under the direction of a board of education, and shall be governed and supported as hereinafter provided.” The third section provides for appointment of the board of education, and, together with subsequent sections, the
The question now arises: Is any part of the act of 1909 valid? It must be conceded that the matter of the existence, government and control of the normal schools is in the first instance with the lawmaking power, the legislature, subject only to the provisions of the constitution. As the Peru normal is a creature of the legislature by the one act establishing it, that act may be amended,
In this discussion I have not deemed it necessary to refer to any acts of the legislature passed subsequent to the act under consideration, for the reason that none of them could have any effect or bearing upon the question involved in this case.
dissenting separately.
I dissent from the majority opinion. The importance of the subject under consideration and the high esteem in which my associates are held impel me to submit at some length the reasons for this dissent. On some features of the present case the views set forth in the dissenting opinion in State v. Junkin, ante, p. 1, with the authorities there cited, so far as applicable to the present case, are here reaffirmed. The majority opinion holds that the amendatory act in question violates that part of section' 11, art. Ill of the constitution, which reads: “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.” This language seems to embrace two closely related subjects, the first relating to the contents of a bill and its title as related thereto, the second relating to the amendment of an existing law. What is the purpose of the constitutional provision relating to an amendment of an existing law? What is the reason for the rule? Clearly its purpose is that an amendment to an existing statute may not be given the form and the force of law
The normal schools and the normal training schools of the state in their origin and development and in practical operation and in contemplation of the law governing them comprise a complete and harmonious normal school system. In this sense they have heretofore been treated by the legislature and in this sense they are contemplated by the amendatory act in question. In pursuance of this policy the act authorizing the creation of the Kearney normal school in 1903 appears in the Compiled Statutes as sections 17, 18, 19, subd. XIII, ch. 79, in the compilations of 1903, 1905, 1907 and 1909. The act creating the
Black, Interpretation of Laws, sec. 86, says: “In the course of the entire legislative dealing with the subject we are to discover the progressive development of a uniform and consistent design, or else the continued modification and adaptation of the original design to apply it to changing conditions or circumstances. In the passage of each act, the legislative body must be supposed to have had in mind and in contemplation the existing legislation on the same subject, and to have shaped its new enactment with reference thereto.” See, also, Cooley, Constitutional Limitations (7th ed.), p. 241, and note 1; People v. Mahaney, 13 Mich. 481; Mok v. Detroit Building & Savings Ass’n, 30 Mich. 511; Bush v. City of Indianapolis, 120 Ind. 476; Fenton v. Yule, 27 Neb. 758; People v. Judge, 39 Mich. 195.
Referring to the provisions relating to junior normal schools, the majority opinion holds, in substance, that the act as amended is not only repugnant to the constitution but that it may lead to a conflict of authority between the newly created board and the state superintendent, and, while this is not assigned as a reason for holding the act invalid, the inference is that it probably has some bearing upon and is perhaps in part one of the reasons that lead to the conclusion reached in the opinion. A conflict of authority that exists only in anticipation should not be thrown into the balance to weigh against the validity of a legislative act. Until the conflict impends or until it appears full fledged, clothed with destructive force, it is not ordinarily a proper subject for judicial inquiry.
The normal school system is a creature of the legislature and that branch of government alone is charged with the responsibility of enacting legislation for its government. The judiciary is not called upon to share this responsibility. Entertaining the views herein announced, it is my judgment the writ prayed for by the relator