37 Neb. 340 | Neb. | 1893
Martha Trumble filed her petition in the county court of Lancaster county setting forth that she was the widow of
Under the pleadings and proof the decrees of the county and district courts were right if the act of the legislature approved March 29, 1889, Session Laws of 1889, chapter 57, is a valid legislative enactment. The plaintiffs in error urge that the act in question violates article 3, section 11, of the constitution, which provides 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amended unless the new act contains the section or sections so amended, and the section or sections so amended shall be repealed.” They further contend that the act violates section 3 of the bill of rights, .providing that “No person shall be deprived of life, liberty, or property without due process of law.” The title of the act is as follows: “An act to amend section thirty (30) and one hundred and seventy-six (176) of chapter twenty-three (23) of the Compiled Statutes of. the state of Nebraska of 1887, entitled ‘Decedents/ and to repeal said original sections, and to repeal sections one (1), two (2), three (3), four (4), five (5), six (6), seven (7), eight (8), nine (9), ten (10), eleven (1«1), twelve (12), thirteen (13), fourteen (14), fifteen (15), sixteen (16), seventeen (17), eighteen (18), nineteen (19), twenty (20), twenty-one (21), twenty-two (22), twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26), twenty-seven (27), twenty-eight (28), twenty-nine (29)
Section 2 of the act amends section 176 o.f chapter 23, Compiled Statutes, by providing a new order of distribution of personal property.
Is this act within the inhibition of that clause of the constitution providing that no bill shall contain more than one subject? This question is in most cases surrounded with difficulty. As was said in Kansas City & O. R. Co. v. Frey, 30 Neb., 790, this clause of the constitution “was never designed to place the legislature in a straight jacket and prevent it from passing laws having but one object under an appropriate title.” Provided the object of the law be single the whole law may be embraced in a single enactment, although it may require any number of details-to accomplish the object. The purpose of the constitutional inhibition upon the other hand was to require each proposed measure to stand upon its own merits, and to-apprise the members of the legislature of the purpose of the act when called upon to support or oppose it, and perhaps a still stronger purpose was to prohibit the joining of several measures in one act in order to combine the friends
In Smails v. White, 4 Neb., 353, it is plainly intimated that the court considered a law fixing the time of taking appeals and also providing for the filing of pleadings in the appellate court as embracing two subjects. So in State, ex
We are even more clearly convinced that the subject, or rather subjects, of the act are not clearly expressed in its title as the constitution requires. So far as that portion of the title which designates the sections repealed is concerned it simply indicates the intention of the legislature to repeal the existing laws upon the subjects treated in those sections and not to enact new laws in their stead. So far as the title designates sections amended it indicates merely an intention to amend the law relating to the descent of real ■estate, and the distribution of personal estate of intestates, those being the only subjects treated in the amended sections.
In City of Tecumseh v. Phillips, 5 Neb., 305, and in White v. Lincoln, 5 Neb., 505, an act was declared unconstitutional which by its title purported to amend the law incorporating cities of the second class and also to legalize certain taxes. The offensive provision purported to legalize and confirm the expenditure of certain license moneys already collected. This was held not to be within the title.
In Burlington & M. R. R. Co. v. Saunders County, 9 Neb., 507, this court held unconstitutional a provision in an act making it the duty of commissioners to levy taxes to pay certain bonds because the title to the act was “An act to amend an act to provide for the registration of precinct or township, and school district bonds.” The act amended contained nothing in regard to the payment of the bonds, and the provision on that subject in the amending act was declared void because not germane to the act amended, and so not within the title.
The law being unconstitutional for the reasons above stated, the next question presented is whether it must be declared void altogether, or whether, by eliminating the objectionable provisions, it may be allowed to stand, in so far as.it is single in its purpose and germane to its title. The rule upon this subject is stated in State v. Lancaster County, 6 Neb., 474, and in a case of the same title, 17 Neb., 85. In the latter case the court says, in an opinion by the present chief justice, that where the act itself includes two dis--, tinct subjects the whole act must be treated as void, .from the manifest impossibility of choosing between the two; but that this rule applies only in those cases where it is impossible from an inspection of the act itself to determine which part is void and which valid. When this can be) done the rule does not apply, unless it shall appear that the
We are fully conscious of the importance of the principle which forbids the courts to declare a statute unconstitutional where any substantial doubt exists; but we have no doubts in this case. The act is upon its face clearly violative of several constitutional provisions. To sustain-it would be to invite their disregard in the future, if not to countenance the practice suggestively designated as “logrolling.” In such a case the duty of the court to set aside an act is as clear as its duty generally to presume the validity of statutes, and no considerations based upon the importance of interests affected can discharge the courts from performing such duty. In this connection, however, it may be well to call attention to the fact that this is a direct proceeding to administer an open estate, and that we are not deciding that titles heretofore derived under decrees made in pursuance of the act in question can be disturbed by any collateral proceedings.
A learned and able argument was máde upon the proposition that the act provided for a taking of property without due process of law, first, because of its provisions au
The judgment of the district court is reversed and the case remanded with directions to proceed in accordance with the law as it existed prior to the passage of the act of 1889."
Reversed and remanded.