State ex rel. Harte v. Moorhead

156 N.W. 1067, 99 Neb. 527, 1916 Neb. LEXIS 54

• Court: Nebraska Supreme Court
• Decided: March 7, 1916
• Docket: No. 19510
• Status: Published

Opinions

Sedgwick, J.

By chapter 150, Laws 1913 (Rev. St. 1913, sec. 979), it was provided: “Counties having more than one hundred and twenty-five thousand inhabitants, shall be divided into five districts numbered respectively one, two, three, four and five, and shall consist of two or more voting precincts, comprising compact and contiguous territory and embracing, as near as.may be possible, an equal division of the population of the county, and not subject to alteration oftener than once in four years.”

In 1915 (Laws 1915, ch. 19) the legislature enacted a statute entitled “An act to amend section 979, Revise^ Statutes of Nebraska for 1913, relating to commissioner districts, and to repeal said original section.” The act provides: “Counties having more than one hundred and twenty-five thousand inhabitants, shall be divided into five districts numbered respectively one, two, three, four and five, and shall within the incorporated limits of any city of the metropolitan class or city of the first class in such county and within the territory comprised within two miles of such incorporated limits consist of two or more voting precincts comprising compact and contiguous territory and embracing, as near as may be possible, an equal division of the population of such cities and adjacent territory as hereinbefore provided and not subject to alteration oftener thdn once in four years: Provided, that all of the territory in such county outside the limits of such city of the metropolitan class and city of the first class and such adjacent territory as hereinbefore provided, shall comprise one commission district and the person representing such district shall be a resident therein and one commissioner shall be nominated by each of said districts, but shall be elected by the qualified electors of the entire county, as heretofore provided. The district lines shall be made to conform to the division herein made so that the commissioner to be elected at the next general election in 1916 shall be elected from the district outside of such metropolitan city and city of the first class and adjacent territory as hereinbefore provided for and after such division the district lines shall not be changed at any session of the board unless all of the commissioners are present at such session: Provided, in counties of one hundred and twenty-five thousand inhabitants or more, and in counties where a majority have voted for five commissioners it shall be the duty of the county board of such county, at their first meeting after the publication of the state or federal census, or after an election deciding to have five, to divide said county into five commissioner districts, as provided for.”

Douglas county is the only county in the state having the specified number of inhabitants, and therefore is alone interested in this Controversy. Under the former statute the county had been divided into commissioner districts, and relator resided within the two-mile limit of the city of Omaha and in the third commissioner district, which embraced also a part of the territory without the two-mile limit. The relator applied to this court for a writ of mandamus to require the respondent, who is election commissioner of Douglas county, to “receive and file the nomination papers of your relator, and place his name upon the official primary ballot for the primary election to be held April 18, 1916, as a candidate for the nomination of county commissioner in the third commissioner district in Douglas county, Nebraska, as defined July 9, 1906.” The respondent appeared and answered the application for the writ. In his brief it is conceded that “there is but one question at issue in this case: Is chapter 19, Laws of 1915, unconstitutional?” Later in the,brief it is suggested that “the only persons who could complain would be those who are in some way injured by such a division of the county. The relator is not injured and has no right to complain.” But this point is not seriously contested. The supreme court of Michigan- remarked in a similar case: “This court, as appears from the authorities above cited, has taken care to prevent officious inter-meddling by the use of this discretionary writ, and at the same time has swept away technicalities where public interests are involved and prompt action is necessary. We have quite uniformly overruled this objection in cases of the latter class.” Giddings v. Blacker, 93 Mich. 1.

Is the act of 1915 unconstitutional? The result of that act as applied to Douglas county is that there are four districts comprising Omaha and the territory two miles in width around the city, which contains over 18,000 ■voters, and the remaining district is a narrow strip around the outside of the two-mile limit, and contains only about 1,700 voters. This district is in two parts not contiguous. The relator contends that the statute is unconstitutional because it violates section 4, art. IY of the federal Constitution, which guarantees to every state a republican form of government, and' that it violates the first section of the fourteenth amendment, which provides that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” and that it violates both express and implied provisions of the Constitution of Nebraska. It is contended that a I statute which so divides a county into districts that an I elector in one district has as much voice in the control off the affairs of the county as do three or four electors in' another district is unconstitutional. “The fact that a statute is within the letter of the Constitution is not sufficient. * * * An act which violates the true meaning and intent of the Constitution and is an evasion of its general express or plainly implied purpose is as clearly void as if in express terms prohibited.” State v. Bartley, 41 Neb. 277. That this statement of the law is substantially correct has never been controverted in this state. In State v. Seavey, 22 Neb. 454, it was decided that the provision of an act of the legislature “making it the duty of the governor to appoint a board of fire 'and police commissioners for cities of the metropolitan class is not repugnant to the Constitution.” In State v. Moores, 55 Neb. 480, a contrary view appears to have been taken, which was affirmed in State v. Kennedy, 60 Neb. 300. The discussion is at great length, occupying some 60 pages of the report. The opinion by Judge Norval, and concurred in by Judge Harrison, cites many authorities. The dissenting opinion prepared by Mr. 'Commissioner Ryan, and concurred in by Judge Sullivan and Commissioner Irvine, presents also a quite exhaustive discussion of the question with citation of many authorities. Afterwards, in Redell v. Moores, 63 Neb. 219, the personnel of the court having changed in the meantime, State v. Moores, supra, is expressly overruled, and the doctrine announced was: “The legislature may by statute confer upon the governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class.” These decisions are referred to in State v. Savage, 64 Neb. 684.

In Newport v. Horton, 22 R. I. 196, 50 L. R. A. 330, it is said that all of the authorities except State v. Moores, supra, seem to be that a statute authorizing the governor to appoint a board of police commissioners for a city is not unconstitutional as interfering with the right of local self-government; “with the exception stated, not one has denied the general power of the legislature to assume the control of the local police.” In an extensive note (50 L. R. A. 330) it is contended that the court was in error in its construction of the laws of Rhode Island. The opinion of the court, however, is instructive. It distinguishes between police officers and governmental officers of cities and other divisions of the state. The court said:

“Obviously this must depend upon the status of a police officer. In Kelley v. Cook, 21 R. I. 29, this court has recently decided that he is an officer appointed to perform a public service, and in appointing him the mayor and aldermen of a city merely exercised one of the functions of government in which the city had no special interest and from which it derived no special benefit or advantage in its corporate capacity. A city, therefore, in preserving the public peace or enforcing the laws within its borders, is not acting for itself or for its own inhabitants merely, but for the whole people; in other words, the state. * * * People v. Common Council of Detroit, 28 Mich. 228, involved the creation of a park commission, and again distinguishing the case from People v. Mahaney, 13 Mich. 481, the court held that the people of other parts of the state had no right to dictate to the city of Detroit what fountains it should build or what land it should buy for a park or boulevard, at its expense, for the recreation of its citizens. People v. Mayor of Detroit, 29 Mich. 343, was on the same subject. Robertson v. Baxter, 57 Mich. 127, related to the authority of a drain commissioner to act outside of his township. Wilcox v. Paddock, 65 Mich. 23, held that the legislature had no power to authorize a judge of probate of one county to assess benefits upon lands outside of his county for a local improvement. Board of Metropolitan Police v. Board of Auditors, 68 Mich. 576, held that the police commission of Detroit, paid for by the city, could not be assigned to duty in other townships. The Michigan cases therefore draw a clear line between local and state service.”

The court makes this distinction plain by quoting the following from Burch v. Hardwicke, 30 Grat. (Va.) 24, 38 (32 Am. Rep. 640): “The distinction recognized in all of them is between officers whose duties are exclusively of a local nature and officers appointed for a particular locality, but yet whose duties are of a public or general nature. When they are of the latter character they are state officers, whether the legislature itself makes the appointment or delegates its authority to the municipality. The state, as a political society, is interested in the suppression of crime and in the preservation of peace and good order, and in protecting the rights of persons and property. No duty is more general and all-pervading than this. It extends alike to towns and cities as to the country.”

In the case at bar we are dealing, not with' police officers of cities, but with counties and their government. County governments are local in their nature, and the Constitution protects them in their right of local self-government. “The legislature shall provide by law for the electioü of)| such county and township officers as may be necessary.” ' Const., art. X, sec. 4.

The Constitution makers had something definite in mind when they provided that county officers should be elected. If a statute should provide that the voters of one township should elect the county officers, that would noti; be the election that the Constitution intends. . If one block of the city with perhaps 20 or 30 votes was constituted a voting precinct and empowered to elect one of five members of the county board, and the remainder of the county divided equally into the four districts with power to elect the four remaining members, this, of course, would not be the election intended. Counties are by the Constitution and statutes given control of their own local matters. No one outside of the county is vitally interested in these matters, and every one in the county is interested equally with all others. To give them unequal powder in the local j government of the county violates the constitutional right of representation as plainly and in the same degree as un- ¡ equal representation in the state legislature or in.congress1 would violate the constitutional right of representation in public affairs. The first section of article I of our j Constitution declares that “all persons are by nature free j! and independent,” and have certain inherent and inalien- |1 able rights and that governments derive “their just powers from the consent of the governed.” The last section of tlie same article declares that “all powers not herein delegated remain with the people.” These provisions are characteristic of a republican form of government. ■ If all power rests in the first instance with the people, and they delegate certain powers to certain of their representatives and retain all other powers, this distinguishes such a government from a monarchy or oligarchy. When the present Constitution was adopted county government had been established and the counties had been given a right to legislate upon certain local matters. This condition was assumed in our present Constitution, and, pursuant thereto, has been continued in elaborate legislative provisions. The principal of our Constitution of absolute equality in governmental matters-is recognized in the legislation which requires that the great seal of the state shall contain the words “Equality before the law.” It must follow that the legislature has no absolute and un- \ limited power to so distribute the control of county affairs ff that the voters in one of five districts of the county can control the affairs of the county. There appears to be no ]] necessity in this case for unequal representation. There can be such number of districts in the county and those districts can be so appointed as to meet every legislative purpose, and at the same time give practically equal representation to all of the people. It is conceded that, if this smaller district had been divided into two districts, giving each of these two districts the power to select a member of the county board, and the remainder of the county divided into three districts with power to select only three members of the county board, the statute would be unconstitutional.

The courts have hesitated to attempt an exact definition of a republican form of government, but what constitutes equality before the law has been frequently considered. The supreme court of Kentucky said: “He has studied our Constitution in vain who has not discovered that the keystone of that great instrument is equality- — equality of men, equality of representation, equality of burden, and equality of benefits. Section 1 of the Bill of Rights provides: ‘All men are by nature free and equal.’ * * * Section 3: ‘All men, when they form a social compact are equal.’ * * * Section 33 provides for equality of representation. Sections 171, 172, 173 and 174 provide for equality of taxation (uniformity). Section 39 provides for equality (general) of laws. Indeed, it could not be otherwise, for, when our forefathers emigrated from their European home, it was in the main to escape from the oppression of inequality. They brought with them a burning love for this great democratic principle, and imbedded it deep in the foundation of the empire they were destined to erect, and which they will preserve so long as the love of liberty is more than a name. When they threw off the supervising government of the mother country, it was because they were denied equality of representation; or, as they then expressed the evil, they had imposed upon them taxation without representation. Equality of representation is a vital principle of democracy. In proportion as this is denied or withheld, the government becomes oligarchical or monarchical. Without equality republican institutions are impossible. Inequality of representation is .a tyranny to which no people worthy of freedom will tamely submit. To say that a man in Spencer county shall have seven times as.much influence in the government of the state as a man in Ohio, Butler, or Edmonson, is to say that six men out of every seven in those counties are not represented in the government at all.” Ragland v. Anderson, 125 Ky. 141, 160 (128 Am. St. Rep. 242).

In the same opinion the court said: “It is not insisted that the equality of representation is to be made mathematically exact. This is manifestly impossible.. All that the Constitution requires is that equality in the representation of the state which an ordinary knowledge of its population and a sense of common justice would suggest. We have not been referred to a more accurate or better description of the equality required by the Constitution than that contained in the report of Daniel Webster, as chairman of a senatorial committee engaged in a duty similar to that involved in the act under discussion: ‘The Constitution, therefore, must be understood, not as enjoining an absolute relative equality, because that would be demanding an impossibility, but as requiring congress to make an apportionment of representatives among the several states, according to their respective numbers, as' nearly as may be. That which cannot be done perfectly must be done in a manner as near perfection as can be. If exactness cannot, from the nature of things, be attained, then the nearest practicable approach to exactness ought to be made.’ ”

The supreme court of Michigan used similar language: “It was never contemplated that one elector should possess two or three times more influence, in the person of a representative or senator, than another-elector in another district. Each, in so far as it is practicable, is, under the Constitution, possessed of equal power and influence. Equality in such matters lies at the basis of our free government.” Giddings v. Blacker, 93 Mich. 1.

It was suggested, on the one part, that the object of this legislation was to give the farmers in the outlying districts adequate representation on the board, and, on the other part, it was suggested that the motive was to remove this relator from the board where he had been a member, and to prevent the selection of a farmer residing within two miles of the city limits. This court will not inquire into nor consider the motives that may have actuated the legislature.

“There is no difficulty in making an apportionment which shall satisfy the demand of the Constitution. It is not the purpose or province of this court to inquire into the motives of the legislature. Courts will not discuss the motives of legislative bodies, except as they appear in the public acts or journals of such bodies. The validity of an act does not depend upon the motive for its passage. The duty of a court begins with the inquiry into the constitutionality of the law, and ends with the determination of that question.” Giddings v. Blacker, supra.

“In so far as a legislature keeps within the limits of powers in enacting laws its motives cannot be inquired into, and its discretion is not a subject for review in the courts; but whenever and to the extent that it transcends its powers, it is conclusively presumed that it intended to so transcend them, and parol evidence of good motives or other considerations are not allowed to obviate the effect of such unlawful intent. * * * Nor is evidence admissible, in support of such apportionment, to show that one district, with a less population than another, was given the same representation because of the excessive assessed valuation of property therein, and the nature and character of its population and business interests. The legislature has no power to disregard the standard of apportionment as fixed by the 'Constitution.” State v. Gunningham, 35 Am. St. Rep. 27 ( 83 Wis. 90).

All voters are equal before the law. The Constitution will not permit one class of voters to be given more power to determine the government than is given another class. If the purpose is to give adequate representation upon the board to the farming interests, no reason is perceived why it could not be done in this case without violating a fundamental principle of our form of government by giving one class of voters more power in the government than is given to another class. Since perfect equality is impracticable, there is no doubt that the legislature may exercise a.reasonable discretion in selecting the method of securing practical equality.

The supreme court of Illinois discussed at large the limits of legislative discretion in such cases in People v. Thompson, 155 Ill. 451, 481, and it was there held that, while the question whether the constitutional requirements have been applied at all is a question for the courts, the question “whether or not the' nearest practicable approximation to perfect compactness and equality has been attained is a question for the legislative discretion.” It was also said:' “Only a reasonable approximation toward equality is essential, under the requirements of the Constitution that senatorial districts shall contain, as nearly as practicable, an equal number of inhabitants.” The court said: “The apportionment as made by the act of 1893 does not make the districts vary as much in population as from a fifth below to a fifth above the ratio. Here is a wide latitude, in a populous state, for inequality, it must be admitted; and we do not mean to say that the legislature could have arbitrarily formed a district containing simply the constitutional minimum of four-fifths, . and another district adjoining with one-fifth or more above the ratio, when, by taking a county from the larger and adding it to the smaller district, greater equality in population and compactness of territory could have been secured, for in such case it might perhaps be said that the principles of compactness of territory and approximate equality in population, above the minimum, had been disregarded and not applied at all by the legislature.”

From tliis it appears that that court was not considering a case in which one district had less than one-third of the population of any other district, and clearly that court Avould have considered that in such an apportionment “equality in population, above the minimum, had been disregarded and not applied at all by the legislature.” It is clear that in the statute we are considering the legis-' lature has arbitrarily divided this county into districts without any regard whatever to equality in population of; .; the district, and it must be considered that the controlling!:, . principle of equality before the laiv has not been applied1' at all. In this view of the case, the statute is unconstitutional and should be disregarded. The writ is

Allowed.