State ex rel. Horne v. Holcomb

Post, J. This is an application to this court in the exercise of its original jurisdiction for a writ of mandamus, requiring the respondent, as governor, to approve the relator’s bond as treasurer of the board of trustees of the institution for the blind at Nebraska City. It appears from the pleadings upon which the cause is submitted that the legislature, on the 5th day of April, 1895, elected trustees for the institution above named as follows : Webster Eaton and F. E. McICeeby, to serve until March 4,1897; and J. L. Fisk and D. W. Crane, to serve until March 4, 1899; and W. L. Wilson and the relator, O. Horne, to serve until March 4, — 90 — 1901. The relator, having been named as treasurer for the board so chosen, presented for approval his official bond which is conceded to be in all respects sufficient, but the respondent refuses, for reasons hereafter appearing, to approve said bond, or to take any action whatever with respect thereto. The relator’s claim is founded upon the provisions of sections 2 and 10 of the act of February 19,1875, entitled “An act to erect and maintain an institution for the blind,” as follows: “ Sec. 2. Such institution shall be under the supervision of a board of trustees, consisting of six persons, who shall be elected by the legislature of the state in joint convention as soon as practicable after the passage of this act. Two of said trustees shall be elected and serve until the fourth of March, A. D. 1877, and two shall be elected to serve until the fourth of March, A. D. 1879, and two shall be elected to serve until the fourth of March, A. D. 1881, and thereafter said trustees shall be elected by joint convention of the legislature and hold their office for six years.” “Sec. 10. The board of trustees shall elect one of their' number president and another treasurer of the institution, and the treasurer shall enter into bonds with security in the sum of not less than ten thousand dollars, to be approved by the governor and auditor of state, conditioned for the faithful performance of his duties and the honest disbursement of, and accountal for, all moneys belonging to the institution which may come into his hands, which bond shall be filed with the secretary of state.” Section 23 of an act approved February 28, 1881, entitled “An act concerning official bonds and oaths,” contains a provision expressly repealing section 10 above quoted, although that act is by both parties treated as void in so far as it relates to the subject of this proceeding, on the ground that the repealing clause thereof is not germane to the title. It is unnecessary in this connection to determine the — 91 — effect of the attempted repeal, since we prefer to rest our conclusions upon other and more satisfactory grounds. A question distinctly presented by this record, and which must be regarded as decisive of the controversy, is whether section 2 of the act of 1875 was abrogated by the provisions of section 10, article 5, of the constitution of 1875, which took effect November 1 of that year, and which reads as'follows: “Sec. 10. The governor shall nominate and by and with the advice and consent of the senate (expressed by a majority of all the senators elected, voting by yeas and nays) appoint all officers whose offices are established by this constitution, or which may be created by law, and whose appointment or election is not otherwise by law or herein provided for; and no such officer shall be appointed or elected by the legislature.” These provisions of the constitution, it must be confessed, are wanting in the clearness and precision which characterizes that instrument as a whole. However, a careful analysis of the above section discloses that power is thereby conferred upon the governor to appoint two classes of officers, viz., (1) those whose offices are established by the constitution itself, and (2) those whose offices are created by law and whose appointment or election is not otherwise provided for. The phrase, “ whose appointment or election is not otherwise * * * provided for,” is an apparent limitation upon the preceding general language, and read by itself impliedly authorizes the legislature to prescribe the manner of selecting all officers of its own creation. The words “by law or herein” add nothing to the force or effect of the provision, since the only officers known to our system are those established by the constitution, and such as are created by law in harmony therewith; but the last clause of the section is in the nature of a proviso, in turn limiting the power of the legislature over the subject, and upon the scope and effect of that limitation must our con — 92 — struction depend. The word “such” therein was not used inadvertently, and without doubt refers to one or both of the classes of officers contemplated by the first clause of the section. It cannot, it would seem, refer to the first class, since the governor is, as we have seen, expressly authorized to appoint all constitutional officers, and which authority is an obvious limitation upon the power of the legislature. It must, therefore, apply to offices created by.law, and be construed as expressly prohibiting the appointment or election of officers by the legislature. There are other considerations which should be mentioned, and which furnish the most satisfactory reasons for the conclusion above stated, some of which will be briefly noticed. It is a notorious fact, well authenticated by history and the public records of the state, that the practice of the legislature under the former constitution in appointing officers and members of boards charged with the government and control of public institutions had resulted in great abuse and public scandal, and that the constitutional restriction under consideration was designed as a remedy for that evil. Our conclusion is also strongly supported by contemporaneous constructions of the executive and legislative departments of the government. As illustrative of the foregoing proposition may be mentioned the fact that upon the adoption of the present constitution the executive officers of the state assumed control of the public institutions, including the institution for the blind, the trustees thereof, who held by appointment of the legislature, voluntarily retiring; and at no time thereafter, until the year 1895, has the legislature assumed the power to appoint or elect officers not essential to the business of its own department. In more than one instance has the legislature determined the question at issue adversely to the claim now urged in its behalf. For instance, during the session of 1893 a communication was by the governor addressed to the com — 93 — mittee in charge of House Roll No. 81, being a bill for “An act for the issuing of state bonds for the purpose of providing supplies for citizens suffering from loss of crops,” etc., calling attention to the fact that said measure was in conflict with the constitution by reason of a provision naming commissioners to distribute the proceeds of the bonds thereby authorized. Thereupon, on motion of the distinguished attorney for the relator, then a member of the house, the objectionable provision was stricken out and the bill so amended as to authorize the appointment by the governor of the proposed commission, and in which form it subsequently became a law. To pursue the subject in this connection would be without profit, since none will controvert the proposition that this section of the constitution was understood by its framers and the people by whom it was ratified as an express limitation upon the power of the legislature, and that the popular construction thereof was by all departments of the state government adhered to without question for more than nineteen years. Such a practical exposition, if not indeed conclusive, should at this late day be accorded the highest consideration by the courts in giving effect to its provision involved. It is said by Marcy, J., in People v. Green, 2 Wend. [N. Y.], 274: “ Great deference is certainly due to a legislative exposition of a constitutional provision, and especially when it is made almost contemporaneously with such provision, and may be supposed to result from the same views of policy and modes of reasoning which prevailed among the framers of the instrument expounded.” And in a recent work on the subject it is said: “A construction of a constitution, if nearly contemporaneous with its adoption, and followed and acquiesced in for a long period of years afterwards, is never to be lightly disregarded, and is often conclusive.” (Sutherland, Constitutional & Statutory Construction, 307. See, also, Endlich, Interpretation of Statutes, 357, et seq Sedgwick, Construction of Statutory & Constitutional Law, — 94 — 552 ; Scanlan v. Childs, 33 Wis., 663; Cohens v. Virginia, 6 Wheat. [U. S.], 265; Packard v. Richardson, 17 Mass., 143; Opinion of Judges, 126 Mass., 551; Chesnutv. Shane, 16 O., 599; Jackson v. Washington County, 34 Neb., 680; State v. Smith, 35 Neb., 13; United States v. Union P. R. Co., 148 U. S., 562.) But we are fortunately not without adjudications in point. In State v. Stanley, 66 N. Car., 59, a statute authorizing the appointment of certain public officers by the speaker of the house of representatives and president of the senate was held to have been abrogated by the constitution of that state which provides : “ The governor shall nominate and by and with the advice and consent of a majority of the senators elect, appoint, all officers whose offices are established by this constitution, or which shall be created by law, and whose appointments are not otherwise provided for; and no such officer shall be appointed or elected by the general assembly.” (Constitution, N. Car., sec. 10, art. 3.) We are unable to perceive wherein the foregoing differs essentially from the provision of our constitution above quoted. Indeed, the only difference observable is the use in ours of the words “by law or herein,” which, as we have seen, add nothing to the force of the section in which they are employed. The court in the case cited say, referring to the last clause of the section quoted, that the words thereof “ are superadded as an express veto upon the power of the general assembly to appoint or to elect an officer, whether the office is established by the constitution or shall be created by an act of the general assembly.” To the same effect see People v. McKee, 68 N. Car., 429, and People v. McGowan, 68 N. Car., 520. It follows that section 2 of the act of 1875, authorizing the election by the legislature of trustees for the institution for the blind, is repugnant to the present constitution and was thereby repealed. The writ is accordingly Denied. Norval, C. J., concurs.