Sullivan, J.
When this case was before us at the last term (Scott v. Flowers, 60 Nebr., 675) we decided that the plaintiff, .Sarah Jane Flowers, was arrested and committed to the state industrial school at Geneva without any legal authority whatever, and that the judgment of the district court awarding her damages for false imprisonment should be, therefore, affirmed. This decision was rendered on the theory that section 5 of the act of 1887 (Session Laws, 1887, ch. 74), to the extent that it assumes to authorize the commitment of children of any age who are incorrigible, but who have not been convicted of crime, is unconstitutional and void. The correctness of this conclusion was promptly challenged by the learned counsel for the defendant. They now insist that the valid and invalid parts of the section are severable, and that the law should be upheld to the extent that it is in harmony with the constitution. Further investigation and reflection have convinced us that this view is reasonable, just, logically sound and well sustained by authority. The [623]*623general rule upon the subject is that where there is a conflict between an act of the legislature and the constitution of the state, the statute must yield to the extent of the repugnancy, but no further. State v. Stuht, 52 Nebr., 209; Town of East Kingston v. Towle, 48 N. H., 57; Chicago, B. & Q. R. Co. v. Jones, 149 Ill., 361; McPherson v. Blacker, 92 Mich., 377; Grimes v. Eddy, 126 Mo., 168; Cooley, Constitutional Limitations [6th ed.], pp. 210, 211; 23 Am. & Eng. Ency. Law [1st ed.], 225. If, after striking out the unconstitutional part of a statute, the residue is intelligible, complete, and capable of execution, it will be upheld and enforced, except, of course, in cases where it is apparent that the rejected part was an inducement to the adoption of .the remainder. In other words, the legislative will is, within constitutional limits, the law of the land, and when expressed in accordance with established procedure, must be ascertained by the courts and made effective. In section 5 of the reform school law the legislature has given a clear expression of its will and purpose. It has in plain terms. declared that all children under the age of eighteen years who shall be convicted in a court of record, of any crime, except murder or manslaughter, committed before the age of sixteen years, or who, for want of proper parental care, are growing up in mendicancy or vagrancy, or are incorrigible, may, in the discretion of the court, be sent to the state industrial school for education, reformation and safekeeping. The legislature did not,.as was shown in the former opinion, possess the power to authorize the commitment of children over the age of sixteen years who have not been convicted of crime, and consequently the courts are without jurisdiction in such cases. The legislature has here clearly expressed its will, but it has gone too far; it has transcended the limits of its authority. It has, in an unmistakable manner, signified its purpose not only to authorize the commitment to the reform school of certain children under the age of sixteen years, but, also, children beyond that age who, although guiltless of [624]*624crime, have evinced a criminal tendency and are without proper parental restraint. The legislature having de; dared its will, and its command to the courts being in part valid and in part void, the decisive question is, shall section 5 be given effect so far as it is in accord and agreement with the paramount law? It seems that both good sense and judicial authority require that the question should receive an affirmative answer.
In providing that certain children under the age of eighteen years should come under the control of the state as parens patriae, the supreme purpose of the legislature was to give protection, education and nurture to every child who for want of proper parental care should be exposed to evil influences and growing up in mendicancy and crime. The intention was not so much to reach all children under the age of eighteen years as to reach all who might need, and be lawfully required to accept, the beneficence and bounty of the state. In view of the fact that sections 6, 7, 8 and 9 of the act of 1887 provide another and different procedure for the commitment of children under the age of sixteen years, there can be no ground whatever for claiming that section 5 would not have been enacted with the age limit fixed in accordance with the requirement of the constitution. The following cases may be cited in support of the doctrine that the grant of a specific power by the legislature is valid and effective so far as it is in harmony with the fundamental law and void only to the extent that it clashes therewith: State v. Moore, 37 Nebr., 13; Dunn v. City of Great Falls, 13 Mont., 58; State v. Long, 21 Mont., 26; Clark v. Ellis, 2 Blackf. [Ind.], 8; State v. Towle, 48 N. H., 97; Tiernan v. Rinker, 102 U. S., 123.
It has been suggested by counsel for defendant that the county court had jurisdiction of the coinplaint under section 6 of the act of 1887; and there is in the brief of counsel for the plaintiff an intimation that the court did not have jurisdiction under section 5, even if that section be sustained except as to the age limit. Our view of the [625]*625matter is that the county court has jurisdiction of complaints filed under section 5, but has no original jurisdiction whatever under section 6 and subsequent sections. The county court, notwithstanding some dicta to the contrary, is always and under all circumstances a court of record; and the county judge, in whatever official capacity he may act, is a judge of a court of record; he is never a justice of the peace, although he is invested with the ordinary powers and jurisdiction of a justice. Under the constitution and laws of this state the only courts of record having authority to try and determine criminal cases are the district courts and the county courts. If the jurisdiction given by section 5 was intended to be limited to the district courts it is extremely improbable that they would be described as courts of record, this being an expression which in its ordinary and legal acceptation includes county courts. ■ But the intention of the legislature is distinctly revealed, and entirely freed from doubt, by section 10 of the act, which provides for a review of the proceedings had in the county court. This section also provides that the proceedings before the county judge may be brought to the district court for revision. There is, however, no provision for reviewing the proceedings before justices of the peace or other inferior courts. The conclusion to be deduced from section 10 is that the district court may review the proceedings resulting in an order of commitment made by the county court in the exercise of its original jurisdiction under section 5, and may also review the proceedings resulting in an order of commitment made by the county judge in the exercise of the revisory jurisdiction conferred upon him by sections 6, 7, 8 and 9. The county court having been invested with complete jurisdiction by section 5 of all the matters embraced in section 6, there can be no good reason for supposing that the legislature intended by the latter section to grant an authority which, in ampler measure, was given by the former. It is, of course, conceivable, but almost beyond belief, that the legislature, [626]
Free access — add to your briefcase to read the full text and ask questions with AI
Sullivan, J.
When this case was before us at the last term (Scott v. Flowers, 60 Nebr., 675) we decided that the plaintiff, .Sarah Jane Flowers, was arrested and committed to the state industrial school at Geneva without any legal authority whatever, and that the judgment of the district court awarding her damages for false imprisonment should be, therefore, affirmed. This decision was rendered on the theory that section 5 of the act of 1887 (Session Laws, 1887, ch. 74), to the extent that it assumes to authorize the commitment of children of any age who are incorrigible, but who have not been convicted of crime, is unconstitutional and void. The correctness of this conclusion was promptly challenged by the learned counsel for the defendant. They now insist that the valid and invalid parts of the section are severable, and that the law should be upheld to the extent that it is in harmony with the constitution. Further investigation and reflection have convinced us that this view is reasonable, just, logically sound and well sustained by authority. The [623]*623general rule upon the subject is that where there is a conflict between an act of the legislature and the constitution of the state, the statute must yield to the extent of the repugnancy, but no further. State v. Stuht, 52 Nebr., 209; Town of East Kingston v. Towle, 48 N. H., 57; Chicago, B. & Q. R. Co. v. Jones, 149 Ill., 361; McPherson v. Blacker, 92 Mich., 377; Grimes v. Eddy, 126 Mo., 168; Cooley, Constitutional Limitations [6th ed.], pp. 210, 211; 23 Am. & Eng. Ency. Law [1st ed.], 225. If, after striking out the unconstitutional part of a statute, the residue is intelligible, complete, and capable of execution, it will be upheld and enforced, except, of course, in cases where it is apparent that the rejected part was an inducement to the adoption of .the remainder. In other words, the legislative will is, within constitutional limits, the law of the land, and when expressed in accordance with established procedure, must be ascertained by the courts and made effective. In section 5 of the reform school law the legislature has given a clear expression of its will and purpose. It has in plain terms. declared that all children under the age of eighteen years who shall be convicted in a court of record, of any crime, except murder or manslaughter, committed before the age of sixteen years, or who, for want of proper parental care, are growing up in mendicancy or vagrancy, or are incorrigible, may, in the discretion of the court, be sent to the state industrial school for education, reformation and safekeeping. The legislature did not,.as was shown in the former opinion, possess the power to authorize the commitment of children over the age of sixteen years who have not been convicted of crime, and consequently the courts are without jurisdiction in such cases. The legislature has here clearly expressed its will, but it has gone too far; it has transcended the limits of its authority. It has, in an unmistakable manner, signified its purpose not only to authorize the commitment to the reform school of certain children under the age of sixteen years, but, also, children beyond that age who, although guiltless of [624]*624crime, have evinced a criminal tendency and are without proper parental restraint. The legislature having de; dared its will, and its command to the courts being in part valid and in part void, the decisive question is, shall section 5 be given effect so far as it is in accord and agreement with the paramount law? It seems that both good sense and judicial authority require that the question should receive an affirmative answer.
In providing that certain children under the age of eighteen years should come under the control of the state as parens patriae, the supreme purpose of the legislature was to give protection, education and nurture to every child who for want of proper parental care should be exposed to evil influences and growing up in mendicancy and crime. The intention was not so much to reach all children under the age of eighteen years as to reach all who might need, and be lawfully required to accept, the beneficence and bounty of the state. In view of the fact that sections 6, 7, 8 and 9 of the act of 1887 provide another and different procedure for the commitment of children under the age of sixteen years, there can be no ground whatever for claiming that section 5 would not have been enacted with the age limit fixed in accordance with the requirement of the constitution. The following cases may be cited in support of the doctrine that the grant of a specific power by the legislature is valid and effective so far as it is in harmony with the fundamental law and void only to the extent that it clashes therewith: State v. Moore, 37 Nebr., 13; Dunn v. City of Great Falls, 13 Mont., 58; State v. Long, 21 Mont., 26; Clark v. Ellis, 2 Blackf. [Ind.], 8; State v. Towle, 48 N. H., 97; Tiernan v. Rinker, 102 U. S., 123.
It has been suggested by counsel for defendant that the county court had jurisdiction of the coinplaint under section 6 of the act of 1887; and there is in the brief of counsel for the plaintiff an intimation that the court did not have jurisdiction under section 5, even if that section be sustained except as to the age limit. Our view of the [625]*625matter is that the county court has jurisdiction of complaints filed under section 5, but has no original jurisdiction whatever under section 6 and subsequent sections. The county court, notwithstanding some dicta to the contrary, is always and under all circumstances a court of record; and the county judge, in whatever official capacity he may act, is a judge of a court of record; he is never a justice of the peace, although he is invested with the ordinary powers and jurisdiction of a justice. Under the constitution and laws of this state the only courts of record having authority to try and determine criminal cases are the district courts and the county courts. If the jurisdiction given by section 5 was intended to be limited to the district courts it is extremely improbable that they would be described as courts of record, this being an expression which in its ordinary and legal acceptation includes county courts. ■ But the intention of the legislature is distinctly revealed, and entirely freed from doubt, by section 10 of the act, which provides for a review of the proceedings had in the county court. This section also provides that the proceedings before the county judge may be brought to the district court for revision. There is, however, no provision for reviewing the proceedings before justices of the peace or other inferior courts. The conclusion to be deduced from section 10 is that the district court may review the proceedings resulting in an order of commitment made by the county court in the exercise of its original jurisdiction under section 5, and may also review the proceedings resulting in an order of commitment made by the county judge in the exercise of the revisory jurisdiction conferred upon him by sections 6, 7, 8 and 9. The county court having been invested with complete jurisdiction by section 5 of all the matters embraced in section 6, there can be no good reason for supposing that the legislature intended by the latter section to grant an authority which, in ampler measure, was given by the former. It is, of course, conceivable, but almost beyond belief, that the legislature, [626]*626having a definite object in view, should, in the adjustment of means to ends, confer upon the county courts complete authority over a certain class of cases and in the very next section confer upon the same courts a limited authority over the same class of cases. How could the court ever know whether it was acting under one section or the other? The provision of section 6 to the effect that the child named in the complaint, together with the papers in the case, shall be sent under the control of an'officer, to a judge of a court of record, indicates with reasonable certainty that the legislature did not have in contemplation a case arising in the county court under that section.
In the seventh point of the syllabus to the former opinion it is said: “Error can not be successfully predicated upon the admission of testimony where the same line of testimony has been received in the cause without objection.” This, we think, is stating the rule too broadly, and the statement is now recalled and condemned. The point is not at all discussed by counsel, and as it has no material bearing upon the decision, it will not be further considered.
Having reached the conclusion that section 5 of the act of 1887 is valid .to the extent that it authorizes the commitment to the reform school of children under the age of sixteen years who are either incorrigible, or, for want of proper parental care, growing up in mendicancy or crime, it follows that the instructions of the trial court can not be approved, and that its judgment- must be reversed." The judgment of affirmance heretofore rendered by this court is set aside, and the judgment of the district court is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Holcomb, J., concurs.