State ex rel. Harte v. Moorhead

■Morrissey,’ C. J.,

dissenting.

I dissent from the majority opinion because no provision of our ‘Constitution has been pointed out to which the act does violence, and it is the duty of the court to sustain *540every law which does not clearly violate the provisions of the Constitution. There is no provision in our Constitution directing that counties shall be divided into coxnmissioner districts, or determining that such an office as county commissioner shall be created. The whole field as to what county officers shall be elected, and how they shall be elected, and from what territorial divisions, is left entirely to the legislature. We have long recognized the wisdom of dividixig counties into districts, and ixi overthrowing this act the majority opixxion repudiates the very policy it purports to support. While the act requires the commissioners to be chosen from districts, they are elected by the entire electorate of tixe county.

A few general principles of constitutional law should be kept in mind in considering this question.

A fundamental pxfinciple announced in Hallenbeck v. Hahn, 2 Neb. 377, is: “The Constitution of this state confers plenary legislative power upon the general assembly; and, if axi act is withixi the legitimate exercise of that power, it is valid, unless soxne express restriction or limitation can be found in the Coxxstitution itself.”

In the same case it was said (p. 397) : “This doctrine is elementary, is cardixxal, and arises out of the very nature of our form of government. With us, sovereignty resides with the people. Were they acting as a whole for themselves, there can be no doubt but this, or any other law that should receive a majority saxxction, would be conclusive. But, parceling out the exercise of their sovereign power to the three departments of government — the legislative, the executive, and the judicial — to the first has been committed, except what has been abandoned to the congress of the United States, the exercise of the whole sovereign law-making power as coxnpletely and absolutely as possessed by the people, subject only to such limitations as the people may have chosen to ixnpose. These limitations are set out in the state Coxxstitution.” .

The constitutional provision quoted in the xnajority opinion that “all powers not herein delegated are reserved *541to the people,” instead of being, as indicated by the opinion, a limitation upon the legislature, is a positive affirmation that, unless restrained by constitutional limitations, the people, acting through their legislature, are free to enact any laAv they deem desirable.

Where no limitation is expressed in the Constitution, “The framers of the Constitution relied for protection in this regard upon the wisdom and justice of the representative body and the accountability of its members to the people, rather than the restraining power of the courts of law. It is said that The courts can enforce only those limitations which the Constitution imposes, and not those implied restrictions, which, resting on theory only, the people have been satisfied to leave to the judgment, patriotism, and sense of justice of their representatives.’ Cooley, Constitutional Limitations, 129. State v. McCann, 21 Ohio St. 198, 210.” State v. Board of County Commissioners, 4 Neb. 537.

It is also well settled that “A legislative act should not be declared unconstitutional, unless it is so clearly in conflict with some prosdsion of the fundamental laAv that it cannot stand.” State v. Nolan, 71 Neb. 136.

Has the act under consideration been shoAvn to be “so clearly in conflict with some provision of the fundamental laAv that it cannot stand?” Relator contends that the act Adolates section 4, art. IV of the United States Constitution, which provides that congress shall guarantee to-every state a republican form of government. The opinion discusses at some length the nature of a republican form of government. This is a political question, and is beyond the jurisdiction of the judiciary. Pacific States Telephone & Telegraph Co. v. Oregon, 223 U. S. 118. “There does not seem to be any case Avhicb is authority for the proposition that an act of the legislature of the state, ■with a republican form of government and so recognized by congress, can be held invalid under the provisions of article IY, sec. 4 of the Constitution.” Susman v. Board of Public Education, 228 Fed. 217.

*542In discussing the nature of a county, in Board of Commissioners v. Mighels, 7 Ohio St. 109, 119, it was said: “A municipal corporation proper is created mainly for the interest, advantage, and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, bnt a branch of the general administration of that policy.”

In its control over the governmental agencies of the state, known as counties, wherein is the legislature limited by the Constitution? The Constitution provides s “The legislature shall provide by law for the election of such county and township officers as may be necessary.” Const., art. X, sec. 4. Under this provision the legislature could-not provide for the appointment of county officers.' While the Constitution directs that the legislature shall provide by law for the election of county officers, it has seen fit not to restrain the legislative discretion as to the number of county officers, their duties, their terms of office, nor their qualifications. Wherein does an act providing for the election .of county commissioners from districts into which the county is divided violate any constitutional provision? If the legislature has the power to provide that county commissioners shall be chosen from districts, has not the 'Constitution left the legislature free to exercise its own discretion in the matter? While not denying the authority of the legislature to create commissioner districts, the majority opinion holds that , the legislature, in doing so, must not do violence to the principle of “equality of representation,” - and cites People v. Thompson, 155 Ill. 451, Slate v. Cunningham, 83 Wis. 90, *543Giddings v. Blacker, 93 Mich. 1, and Ragland v. Anderson, 125 Ky. 141. In these cases acts of the legislature dividing the state into legislative districts of unequal population were held unconstitutional, but an examination of these cases shows that in each state the Constitution provided that the districts should be divided “according to population,” or should contain, “as nearly as practicable, an equal number of inhabitants.” No such constitutional provision has been shown to limit the legislature in this case.

The majority opinion quotes the discussion of the Kentucky court in Raglan v. Anderson, supra, upon the principles of “equality.” The Kentucky Constitution expressly provided that the state should be divided into senatorial and representative districts “as nearly equal in population as may be.” Since that decision the Kentucky court has held that, where a city council has authority to divide the city into wards and provide for the election of councilmen, “there being no constitutional or statutory provision requiring that such division be so made as to provide equal representation, the courts cannot interfere with the exercise of the legislative power so conferred by invalidating an ordinance so dividing the city into wards as to cause unequal representation.” Moore v. City of Georgetown, 127 Ky. 409. In an opinion containing a full discussion of the question, the court, among other things, said:

“It is true that fair representation and equal apportionment is a valuable privilege, and one that should be adhered to; but, when the legislative department of the state that created these municipalities and provided an elaborate plan for their government failed to adopt either directly or by implication any scheme to regulate or control them in the selection of their legislative boards, we do not feel that the courts are warranted in interfering with the discretion lodged in the people of these cities and their representatives whose duty it is to divide the city into wards. So far as our examination extends, in every in*544stance in which the judiciary has undertaken to interfere with the legislative department of the state or its municipalities in the power of apportionment and representation authority direct or by implication has been found in the Constitution or the statutes. * * * Whilst the division of Georgetown into wards by the council and the allotment of representation is apparently unfair and unequal, we do not feel disposed to adjudge that it exceeded the power granted. Nor can we hold that it violates any fundamental principle of government.”

In Richardson v. McChesney, 128 Ky. 363, the Kentucky court also held: “A legislative apportionment of the state into congressional districts cannot be judicially reviewed, in the absence of a constitutional provision controlling-apportionment.” In the opinion the court said: “Except when limited by the Constitution of the state, the general assembly, especially in administrative and political affairs, is beyond the reach of the judiciary of the state. We have no authority to pass judgment upon its acts. In no case that has come under our notice have the courts undertaken to attempt to restrain the legislative departments, unless it violated some provision of the organic law of the state. * * * But in the matter of congressional districts we find nothing in our state Constitution to guide us. There is nowhere any limitation npon the power of the legislature, and it would be assuming authority this court does not possess if we undertook to control a coordinate department of the government in the performance of a power vested exclusively in it. It is not for the judiciary to question the policy, expediency, or propriety of laws enacted by the general assembly, unless they conflict with the Constitution.”

In Tennessee, where the Constitution provides for the election of justices of the peace in districts of the comities who shall constitute the county board, it was held that the court would not interfere with the action of the legislature in redistricting a county, “though the districts as laid off in- the statute are disproportionate in area, wealth, and *545population, and of shape inconvenient to their inhabitants.” Maxey v. Powers, 117 Tenn. 381. In the opinion the court said (p. 392) : “The general rule is that where one of the departments of the state is vested with a power, to be exercised when and in such manner as those charged with its exercise may consider expedient and proper in its discretion, the action of the department cannot be inter- • fered with by any other department. This is especially so in matters of a political character. * * * (p. 393) The general assembly had the exclusive and absolute power to lay off Knox county into civil districts. How it should execute this power was for it to determine. It must be assumed that it had the proper data and information before it to do so intelligently, and that the districts created by it are of convenient size for their primary purpose, the efficient administration of the law in the county, and also in the interest and for the good of the people affected. The courts have no jurisdiction to inquire into these matters, and the civil districts must stand as laid off by the act, until it is repealed or amended by the legislature.”

The Constitution of Michigan provides: “A board of supervisors, consisting of one from each organized township, shall' be established in each county. * * * Cities shall have such representation in the board of supervisors of the counties in which they are situated as the legislature may direct.” The legislature provided that the president of the village of Mackinac should be a member of the board of supervisors. This was claimed to violate the quoted provisions of the Constitution. It was argued that this act allowed a village to have the same representation on. the board as a city, and, further, that the act pro- • vided for more than one supervisor from each township. The court held the act valid, and said: “The necessity for the enactment of the statute becomes most apparent in the case of this village, when we take into consideration its geographical position with reference to other portions of *546the county in which it is located. It is situated on two islands about five miles from the other portions of the territory of the county, and for several months in the year access with the mainland becomes exceedingly difficult. Its business interests, to a great extent, are such as have but little connection with those of the other portions of the county; and its property depends largely for its value on considerations which do not affect the remainder of the county. It seems to be entirely proper that its interests should be specially represented on the board which apportions the taxes to be paid, on its property holders, and whose action continually, more or less, involves its local interests.” Attorney General v. Preston, 56 Mich. 177.

In Redell v. Moores, 63 Neb. 219, the doctrine on which the majority opinion is based, previously announced by this court in State v. Moores, 55 Neb. 480, that afi act might be unconstitutional as being in violation of the spirit of the Constitution, was definitely set aside. Speaking of the decision in State v. Moores, supra, it was said by Judge Sullivan, in State v. Kennedy, 60 Neb. 300, that, if the view that the spirit of the Constitution may be invoked to declare a law invalid ‘fis to be acquiesced in and accepted as a rule of construction, the Constitution of the state is to be fully known only by studying the theories of the judges who are chosen to expound it; it will expand or contract with every fluctuation of the popular will which produces a change in the personnel of the court; and the limitations upon legislative power will be as unknown and unknowable as were the rules of equity in the days when the chancellor’s conscience was the law of the land.”

The wisdom of the act is not for the court to determine, illalthough it clearly appears that there is good reason for ¡its enactment. The policy of dividing the county into districts is based on the supposition that members of the board ought to be familiar with the local needs of their constituents; that they ought to be in close touch with *547those they are elected to serve and whose business they ¡administer. This act is designed to provide representation 5'for the rural district, where the avocations of the people are different from those within the metropolitan city. While there are fewer voters in the rural district, they are scattered over a much wider territory, and their interests are more diversified. There are many miles of road within this district, and there are many bridges. These roads and bridges come within the jurisdiction of the board. Members of the board living within the metropolitan city, enjoying the advantages of paved streets, strangers to the vicissitudes of country life, may not be so ready to respond to the needs of this particular class as one who maintains his home among them. Then again, per capita, this district may represent a much greater proportion of the taxable property of the county than a district of greater population within the metropolitan city, where large numbers of voters possess no property and contribute nothing to the support of .the county.

The majority opinion is an unwarranted invasion of the power vested exclusively in the legislature, and cannot be reconciled with the provisions of our Constitution.

Letton and Bose, JJ., concur in this dissent.