State ex rel. Jones v. County Commissioners

Gantt, J.

The question of township organization was submitted to the vote of the legal voters of Lancaster county, at the general election held on the sixth of November, 1877, and a majority of the votes cast on that question were in favor of such organization. But the county commissioners refused to complete the township organization as required by the act of February 13, 1877, and in their answer to an alternative writ of mandamus against them they deny that the township organization was adopted by a majority of the legal voters of the county, voting at said general election, and aver that the act is unconstitutional, inoperative, and void. By stipulation of the parties it is admitted that 2,451 legal voters of the county voted at the general election; that 952 votes were cast in favor of township organization and 601 votes were cast against such organization. It there *482 fore required 1,226 votes to constitute a majority of all the voters who voted at such election. The decision of the first question raised by the answer depends on the construction which must be given to section five, article X, of the constitution, which declares that: “ The legislature shall provide by general law for township organization, under which any county may organize whenever a majority of the legal voters of such county, voting at any general election, shall so determine.”

It is the province of a written constitution to establish fundamental maxims and fix rules of proceeding which are usually looked upon as material to be done, and to be regarded in the light of limitation upon the powers to be exercised; and therefore it is said that in the construction of a constitution “ its terms must be taken in the ordinary and common acceptation, because they are supposed to have been so understood by the framers and by the people who adopted it.” In Oakley v. Aspinwall, 3 N. Y., 568 , Bronson, J., in reference to the construction of a constitution, said his “ rule had been to follow the fundamental law as it is written regardless of consequences,” and that “if the legislature or the courts undertake to correct defects by forced and unnatural construction they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary, in enlarging the powers of the government, opens the door for another' which will be sure to follow; and so the process goes on until all respect for the fundamental law is lost, and the powers of the government are just whatever the authority pleases to call them.”

In the application of these principles to the above provision of the constitution, it may be remarked, in the language of Emmot, JT., in People v. Lawrence, 36 Barb., 186 , that “ it would be found upon full examination to be difficult to treat any constitutional provisions as *483 merely directory and not imperative;” and certainly when the words are not used in a strictly technical sense, the only safe rule is to follow the fundamental law as it is written. In the. section quoted, the language admits of but one meaning, and that is imperative in its operation, and therefore it seems to me quite clear that to adopt the township organization there must be an affirmative vote of a majority of all the legal voters, voting at the general election.

In the case of The People v. Brown, 11 Ill., 479 ., in the construction of a similar constitutional provision, the court say that it “ is free from all doubt or uncertainty. The language is clear and explicit, and admits of but one meaning. It does not mean a majority of those voting on the question to be submitted, but a majority of all the legal voters of the county,” and that the right to organize depends on an affirmative vote of such majority. People v. Wiant, 48 Ill., 266 . State v. Winkelmeier, 35 Mo., 103 . County Seat of Linn County, 15 Kansas, 530.

In Bayard v. Klinge, 16 Minn., 249 , it is held that when the constitution provides that a question must be submitted to a vote of “ the electors of the county,” and requires “ a majority of such electors voting thereon,” it means a majority of the electors who vote at such election, and not merely of them voting on the particular question. It is, however, true that in California, Ohio, and Wisconsin a different rule of construction has been adopted; but when these courts attempt to apply to the construction of constitutions the rules which distinguish directory and mandatory statutes, they certainly tread on very dangerous ground, and as observed by an eminent jurist, although there may be “very strong motives for declaring the law to be what it is not,” yet “it would have been interesting and useful if either of these learned courts had enumerated the evils that must be placed in the opposite scale when the question is whether *484 a constitutional rule shall be disregarded, not the least of which is the encouragement of a disposition on the part of legislative bodies to set aside constitutional restrictions, in the belief that if the unconstitutional law can once be put in force, and large interests enlisted under it, the courts will not venture to declare it void, but will submit to the usurpation, no matter how gross and daring.” Cooley’s Const. Lim., 73, note.

No doubt, as in the courts referred to, there will always be some plausible reason for latitudinarian construction. It may be urged on the ground that some real or supposed evil may be avoided, or some real or supposed good may be obtained. But will not yielding to such influences gradually undermine and finally overthrow the constitution? Indeed, if legislatures and courts may, under such rule of construction, “depart from what is plainly declared in the constitution, the people might well despair of ever being able to set any boundary to the powers of the government.”

I think that section five, article X, of the constitution must be construed according to the plain meaning of the words used, and that the language employed therein is mandatory; and therefore, as the affirmative vote on the question submitted was less than a majority of all the legal voters, voting at the general election, the proposition to adopt township organization was defeated.

The second question raised by the answer is, whether the act is unconstitutional, inoperative, and void. The constitution declares that “ no bill shall contain more than one subject, and the same shall be clearly expressed in the title.” This provision is mandatory; and according to the whole current of authorities, it seems clear that it not only requires the purpose of the act to be correctly indicated by the title, but that it must control the effect and operation of the law, and exclude every thing which is not within the purpose indicated by the *485 title. It is, however, not the intent of the constitution that each subject of legislation shall be divided into separate acts so far as the subject is capable of division, but that the subject matter of each part or section of the law must be germane to the primary object of the bill, which is denominated by the constitution as the subject of the act.

Another principle in the interpretaion of a constitution is, that presumptions will always be in favor of the constitutionality of the law, when its object and provisions are within the acknowledged powers of the legislature'; and therefore the power of the courts to declare a legislative act a nullity because it infringes on the constitution should be “ exercised with extreme caution, and never when a serious doubt exists as to the true interpretation of the provision alleged to be repugnant.” But the court is required to declare what the law is in the case which comes before it; and hence if the legislative department infringe the constitution in such case, the duty of the court, though it may be delicate and unpleasant,.is a plain one, regardless of consequences. It is the duty of the court to regard the constitution, which is the fundamental law and superior to the ordinary act, and the constitution, and not such ordinary legislative act, must govern the case to which both apply. These general rules are deduced from the authorities, and seem to be well-established principles in the construction of statutory law; and with these in view, the act in question will be examined.

The title to the act is “An act to provide for township organization.” This .title is very restrictive; it includes only township organization, and it will not be urged that the court can enlarge the scope of the title. On the contrary, it is said that “ the constitution has made the title the conclusive index to the legislative intentas to what shall have operation,” and as the legislature “ may *486 make the title to an act as restrictive as they please, it is obvious that they may sometimes frame it as to preclude many matters from being included in the act which might with entire propriety have been embraced in one enactment with the matter indicated by the title, but which must be excluded because the title has been made unnecessarily restrictive.” Cooley, Const. Lim., 149.

Now notwithstanding the very restrictive terms of the title to the act in question, yet it not only contains provisions in regard to township organization, but it also provides for county organization and defines its corporate powers; it determines the number of county officers, defines their duties, provides for their election, and limits the terms of their respective offices, and it also materially amends and changes the general revenue laws; and all these various subjects of legislation are contained in the body of the law, and are so intermixed and connected that all those portions of the act not embraced within or indicated by the title “ cannot be rejected and leave a complete and sensible enactment which is capable of being executed.” Indeed the second section of the act makes the whole law but one system, for it provides that the county voting in favor of township organization “shall be governed by and subject to the provisions of this act.” In Mewherter v. Price, 11 Ind., 200 , the title to an act was, “ an act concerning promissory notes and bills of exchange,” and the court say: “We have seen that the title to the act under consideration is limited to promissory notes and bills of exchange. Its language is very explicit, and we know of no rule of construction by which it can be extended as to embrace instruments of writing other than those which it expressly names.” So in the case at bar, the title is limited merely to township organization, and there is no rule of construction by which it can be enlarged so as to embrace the other subjects contained in the law, and not expressed or fairly indicated in the title.

*487 In The State v. Perry Co., 5 Ohio St., 507 , the law-submitted the removal of the county seat to a vote of the electors of the county, but the act contained another subject, making the two dependent on each other. The court said in substance that the second subject, not indicated in the title, was such as would naturally influence the vote upon the adoption or rejection of the first, and would be a fraud upon the electors of the county to procure the adoption of the first by means of the second subject, and then declare it void. This would be allowing the second to accomplish its purpose, giving vitality and effect to the first, which without it would never have been adopted. The provisions of both áre made equally to depend upon the result of the election; they were submitted by the legislature collectively to the voters of the county, and could only be passed upon as a whole, and they must stand or fall together, and therefore both parts of the act must be held to be unconstitutional. So in the case at bar, township and county organizations and a change in the general revenue laws are submitted by the legislature collectively to the voters of the county, and could only be passed upon as a whole, and therefore they must all fall together. However, the rule is not to be questioned, that when the part of an act which is clearly expressed by the title is not dependent on that which is unconstitutional, and is complete in itself and capable of being executed, it will be maintained; but where the different portions of the act form inseparable parts of the same-system, and some portions are unconstitutional, the whole law is invalidated by the unconstitutionality of such parts. Campan v. Detroit, 14 Mich., 276 . Lathrop v. Mills, 19 Cal., 513 . State v. Perry Co., 5 Ohio St., 497 . Oatman v. Bond, 15 Wis., 20 . Reed v. Omnibus, 33 Cal., 212 . The act under consideration clearly comes ydthin the latter rule, and therefore it must be held inoperative and void.

*488 The case of The Board of Supervisors v. Heenan, 2 Minn., 339 , which was very much relied on by counsel for relator, cannot be approved for several reasons. It is, however, only necessary to state that the decision of that case seems to rest mainly upon popular understanding ” and “ custom; ” and also upon the theory that a “ segment ” of each township government will “ aggregate and form the county government.” ■ This latter result certainly cannot follow in our state, for the county organization is separate from that of township, and none of the county officers constitute a “segment” of the township organization except the supervisors, in case township organization should be adopted as indicated by the act in question.

The writ of mandamus must be denied.

Writ Denied.