State v. Scott

The following opinion on rehearing was filed September 22, 1904. Judgment of dismissal adhered to:

Letton, C.

At the former hearing of this case (ante, p. 681), we held that an information in the nature of quo warranto would not lie in the case. At that time our attention was mainly directed to the question of practice as to whether or not the remedy of quo warranto was a proper one to be applied under the circumstances. At this hearing, however, our attention has mainly been called to the question whether or not the law of 1903, chapter 32 ' (sec. 131a, art. 1, ch. 18, Compiled Statutes, Annotated Statutes, 9224), by which the county surveyor is.made, ex officio, county engineer, is in violation of the constitution. It seems clear to us that this act is a clear and palpable violation of section 15, article III of the constitution of Nebraska, which prohibits-the passage of local or special laws regulating county and township offices, and further provides that in all cases where a general law can be made applicable no special law shall be enacted. By the provisions of the act under consideration, it is provided that, in all counties of the state of Nebraska having over 50,000 inhabitants according to the census of 1900, the county surveyor shall be, ex officio, county engineer, etc. The operation of the act is limited to counties having over 50,000 inhabitants according to the census of 1900. The court takes judicial notice of the fact that there are only two counties in the state of Nebraska which had over 50,000 inhabitants according to the census of 1900. These are the counties of Douglas and Lancaster, and the act might as well have stated in express terms that in the counties of Douglas and Lancaster the county surveyor shall be, ex officio, county engineer, as to limit the class of counties to which it is applicable to a class which plainly and inevitably contains only the two counties named. The object of the law may be wise, and the reform sought to be accomplished *687may be salutary. It may be that the heavier burden placed upon the roads and bridges of .the counties named, by reason of the greater density of population and consequently increased amount of travel and intercourse carried on upon the public highways, renders it necessary that a skilled officer shall have the general charge and supervision of road work and of the selection of materials for, and the construction and repair of, bridges. But this end is as necessary to be attained in all counties which may in the future reach the population prescribed by this act, as in those which are now in the class. This act is so framed that it can not in the future apply to other counties which may attain the requisite population. The classification therefore is arbitrary and points out the two counties named as clearly and specifically as if they had been designated by their proper names. The effect of the statute is to.remove the counties of Douglas and Lancaster from the operation of general laws applying to all counties in the state. A general law can plainly be made applicable to all counties having the required population, without the limitation to those which had 50,000 population by the census of 1900. It is clear, therefore, that this is a local and special act applying only to these two counties, that a general law may be made applicable, and that the act therefore is in violation of the constitutional restrictions. State v. Mitchell, 31 Ohio St. 592, 607; State v. Anderson, 44 Ohio St. 247; City of Topeka v. Gillett, 32 Kan. 431; Woodard v. Brian, 14 Lea (Tenn.), 520.

The act which imposes the additional duties upon the county surveyor being void, he has acquired no duties or privileges other or further than those prescribed for the • office of county surveyor, and, so far as he may undertake to transcend those duties, he has no greater right than any other private citizen. This being the case, the relators have a full and adequate remedy at law. The former decision dismissing the case is right and should be adhered to.

Ames and Oldham, CC., concur. *688By the Court:

For the reasons stated in the foregoing opinion, it is ordered that the former decision dismissing the case be adhered to.

Dismissed.