82 Neb. 267 | Neb. | 1908
These two actions arise out of the following facts: In the charter of cities of the metropolitan class (Comp. St. 1907, ch. 12») the authority is conferred upon the mayor of such cities, “by and with the consent of a majority of the entire council to appoint all officers that may be deemed necessary for the good government of the city, unless otherwise provided for in this act.” Section 26. By section 54 it is provided: “In each city of the metropolitan class there shall be a board of park commissioners who shall have charge of all the parks and public grounds belonging to the city, with power to establish rules for the management, care and use of public parks, parkways and boulevards, and * * * from time to time to devise, suggest and recommend to the mayor and council a system of public parks, parkways and boulevards or additions thereto within the city, or within three miles of the limits thereof, and to designate the lands, lots or grounds necessary to be used, purchased or appropriated for such purpose.” Section 55 is as follows: “Said board of park commissioners shall be composed of five members, who shall be resident freeholders • of such city and who shall be appointed by the judges of the district court of the judicial district in which such city shall be situated. It shall be the duty of said judges, a majority concurring, to appoint or reappoint one of said board each year on the second Tuesday of May, and to fill for the unexpired term any vacancies existing in the board. A majority of all the members of the board of . park commissioners shall constitute a quorum.” This section was enacted in 1889, and, in accordance with its provisions, the judges of the district court appointed the park commissioners, and continued to do so until the decision of this court of the case of State v. Moores, 55 Neb. 480, which occurred June
It is the contention of counsel for defendant Neble that that part of section 55, above quoted, which authorizes the judges of the district court to appoint the park commissioners, is unconstitutional and void as violative of section 1, art. II of the constitution of this state, for the reason that it imposes the duty of appointment upon the judicial department of the state, while the duty of appointment calls into action an executive or administrative function, which can, under the constitution, be exercised only by executive or administrative officers. It is the contention of counsel for defendant Latenser that the provision objected to is valid for the reason, first, that the section of the constitution can refer only to the de
In the investigation of this question we are confronted with the unusual and anomalous condition of meeting with many apparently well-considered cases sustaining every contention of either side, and it will be absolutely impossible for us to follow any line of decisions which w-ill not be antagonized by holdings in many other cases, for there is a sharp conflict of authority upon every conceivable feature and phase of the case. It could serve no good purpose for us to discuss and attempt to harmonize the views of Montesquieu, Jefferson, Madison, Hamilton, Stevens, Wilson, Goodnow and others upon the question here involved, for the reasons that it would be impossible to bring harmony out of the chaos produced by their divergent opinions, and that such discussion would extend this opinion to an unreasonable length, ending where we begin, and for the further reason that the time at our disposal is not adequate to the task. We will, therefore, be content with a brief reference to some of the later decisions, and an effort to arrive at the spirit and meaning of our own constitution as interpreted by the courts, the legislature and the judicial and administrative history of the state.
The provision of the constitution (art. II, sec. 1) that
It is unnecessary to cite the statutory provisions conferring this “quasi” authority, .which is, strictly speaking, an evasion of the rule, and Avhicli are sustained, for tin1 statutes of all the states, as well as of the general government, are full of them. An apt illustration of this may be found in the office of the state superintendent of public instruction. By section 1, art. Y of the constitution, it is declared: “The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor of public accounts, treasurer, superintendent of public instruction, attorney general, and commissioner of public lands and buildings”; thus clearly classing the superintendent of public instruction with the officers of the executive department. Yet it is within common knowledge that he is clothed not only Avith executive, but judicial, and- to some extent with legislative powers, the judicial to perhaps as full extent as the executive. His decisions (judicial) upon all subjects determinable by him within his department are binding upon county superintendents, teachers and school boards, unless reversed or overruled by a court having the required jurisdiction. Many other executive officers possess these same judicial poAvers, but in a less degree perhaps, among which might be mentioned the auditor of public accounts, sheriffs, coroners, county superintendents, and the various state, county and other boards. The conferring and exercising of the poAvers prescribed are seldom, if ever, questioned, and are recognized as legal. Were such not the case, it would be practically impossible to execute and enforce the laws applicable to the various departments. If there is a limitation upon the authority of the legislature to confer these powers, it must be found in the well-known
The question then arises: Is it competent for the legislature under the limitations of the constitution to confer the power of appointment alone upon the judges of the district court of the judicial district in which cities of the class named are located, some of whom reside within the city, and some who do not? It is contended by counsel representing the appointee of the judges that the appointment by them is not the exercise-of a judicial function; that no action is taken or to be taken as a court, but that a majority of the persons who are holding the offices join together in selecting the commissioners. There is nothing-requiring- any court record of the appointment to be made, and we think, if it be said that the term “judges” is nothing more than a description or method of designation of the persons who are to discharge that duty, it might occur that a majority or possibly all the persons designated might be not only nonresidents of the city, but of the county in which the city is situated; and a serious ques
As we view the case, the first question demanding our attention is:.“Is this power of appointment under these circumstances the exercise of a judicial function?” From the examination of the cases cited and others to which we have had access, we are led to the belief that it is not, but that it is executive or administrative in its essence. In the investigation of this question, as in all others arising in this case, we .encounter a sharp conflict in the authorities, although it is claimed by some writers that the weight of authority is in favor of the negative of the proposition. In State v. Brill, 100 Minn. 499, it is said: “Although there are some decisions to the contrary, it is generally conceded that the power to appoint to a public office is in its nature an executive function.” In State v. Washburn, 167 Mo. 680, 67 S. W. 592, it is said:
*276 “To provide by law the manner in which an appointment shall be made is one thing, to make the appointment is another; the one is in its nature legislative, the other is essentially executive. * * * The act of filling a public office by appointment is essentially an administrative or executive act, and, under the constitution, can be exercised only by an officer charged with the duty of executing the laws.”
In In re Supervisors of Election, 114 Mass. 247, the statute provided that, “whenever, prior to an election, five legal voters of any ward of a city shall make known in writing to a justice of the supreme judicial court, in term time or vacation, their desire to have such election guarded and scrutinized, it shall be the duty of such justice * * * to appoint and commission two legal voters of such ward, who shall be of different political parties, and who shall be known and designated as supervisors of election.” A petition was duly presented to Chief Justice Gray, asking that the appointments be made for a certain ward in the city of Boston. Instead of taking action upon the petition, the chief justice gave notice of a hearing, and assembled four of the seven members of the court, when the subject was presented by able counsel. The result of the hearing was a unanimous opinion that the law imposing the duty of appointment upon the judges was unconstitutional and void. • In the opinion it is said: “These supervisors, although entrusted with certain discretion in the performance of their duties, are strictly executive officers. They make no report or return to the court or to any judge thereof. Their duties relate to no judicial suit or proceeding, but solely to the exercise by the citizens of political rights and privileges. We are unanimously of opinion that the power of appointing such officers cannot be conferred upon the justice of this court without violating the constitution of the commonwealth. We cannot exercise this power as judges, because it is not a judicial function; nor as commissioners, because the constitution does not allow us to hold any such office.”
This being true, we next inquire whether under the constitution, it is competent for the legislature to impose the burden of appointing executive officers upon judicial officers. Our attention has been called to a number of cases, which are thought to be in point upon the question, and which we will briefly notice. It is insisted by counsel for the mayor’s appointee that the case of Tyson v. Washington County, 78 Neb. 211, is directly in point as sustaining the contention that the provision requiring the judges to make the appointment is violative of the constitution. We cannot see that such is the case, as the question there Avas whether the district court could take jurisdiction of and entertain an appeal from the action of the county board in directing the construction of a drainage ditch. It was held that, as the order of the board was purely administrative in its character, the power to review their action could not be conferred upon the courts. While the logic and argument of the Avriter of the opinion seems to sustain the contention, yet the case itself is not similar to this, nor are the principles to be applied applicable to the question here. State v. Barker, 116 Ia. 96, is more clearly in line with this case, but in that case the act under consideration required the appointment of AvaterAA'orks trustees by the district court, instead of the judges thereof. The holding was that such power could not be conferred upon the courts. The logic of the case is in support of the contention here that the power cannot be conferred upon officers of the judicial department of the government. But, in vieAV of the contention of the state, the case is to some extent dissimilar. In State v. Brill, supra, the legislature of Minnesota passed an act requiring the judges of the district court, or a majority of them, to appoint the members of the board of control of the
The constitution of the state of Ohio contains no provision similar to that contained in the constitution of this state, dividing the powers of government into three distinct departments, and prohibiting persons of one of the departments from exercising the powers properly belonging to either of the others. The case of Village of Fairview v. Giffee, 73 Ohio St. 183, was where an act authorizing the court of common pleas to detach unplatted farm lands from the corporate limits of cities or villages was called in question as being unconstitutional, for the reason that it imposed legislative power upon the judiciary. The court held that, as the powers were not divided and distributed by the constitution, it was left for the legislature to do so, and for that and other reasons the act was held valid. We cannot see that that case is to be considered as authority in this one. It was also held that the act called into action no other than judicial functions and powers. The case of People v. Morgan, 90 Ill. 558, is in many respects similar to the one under consideration, and in which an act authorized the judge of the circuit court to appoint the south park commissioners was held valid. This is perhaps one of the leading cases in support of the constitutionality of the law, and yet it is based to a considerable extent upon the legislative and judicial history of the state on the subject of appointments of subordinate officers or agencies. It is cited and followed, generally
It is contended that the separation of the powers of government into the three departments, as provided for in the constitution, relates to the state government alone, and is not applicable to municipal or other local bodies whose governments are created and whose offices are established by the legislature, and a number' of cases are cited in support of the contention. This is undoubtedly true in theory, and in many cases in practice, and such is the real purpose of state constitutions. But there is no
The judgment will be in favor of the defendant Neble in case No. 15,715, and in favor of the state in No. 15,716.
Judgment accordingly.