City of Omaha v. Union Pac. Ry. Co.

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court. [1017] The question which arises on this appeal is whether the above-quoted provisions of the acts of April 9, 1891, and April 7, 1893, which empower the clerks of metropolitan cities to add to the city assessment roll certain railroad property therein specified, and to assess the same for city purposes, are valid or otherwise. The plaintiff below contended, and the circuit court so decided, that the aforesaid provisions of the acts of 1891 and 1893 were void, and of no effect, because they were incorporated into the acts in which they are found in violation of that clause of section 11, art. 3, of the constitution of Nebraska, which declares that: “No bill shall contain more than one subject and the same shall be clearly expressed in its title. And no law shall he amended unless the new act contains the section or sections so amended and, the section or sections so amended shall he repealed.” Constitutional provisions of the same or very similar import are now found in the organic law of several states, and it has been generally agreed that one of the leading objects intended to be accomplished by placing such restrictions upon legislative action was to prevent surreptitious legislation. Another object was to prevent the union in the same act of incongruous matters or subjects of legislation that had no necessary or proper relation. Cooley, Const. Lim. (5th Ed.) pp. 170-173, and cases there cited. It is also very generally held that the constitutional inhibition in question ought not to be so construed as to embarrass legislation “by making laws unnecessarily restrictive in their scope and operation,” or by requiring all the objects of a law to be slated with great fullness and detail in the title thereof. Travelers’ Ins. Co. v. Oswego Tp., 19 U. S. App. 321, 322, 7 C. C. A. 669, and 59 Fed. 58; Tabor v. Bank. 27 U. S. App. 111, 10 C. C. A. 429, 434, and 62 Fed. 383. At the same time the courts have endeavored on all occasions to so interpret the provision as to put an end to the vicious practice of working into a statute, under a misleading title, important and radical changes in existing laws. In other words, they have so construed the organic law as to make it serve the purpose which it was plainly intended to accomplish. In no state, perhaps, has the effort: in this direction been more pronounced than in the g/tate of Nebraska. Thus in one of the early cases which arose in Nebraska involving a construction of the constitutional provision now in question (City of Tecumseh v. Phillips, 5 Neb. 305) it appeared that the legislature had passed an act entitled, in substance, “An act to amend the general incorporation law for cities of the second class, and to legalize certain taxes.” One section of the act contained a provision that “in all cases in which cities of the second class had collected and expended moneys collected from licenses for the sale of intoxicating liquors, such expenditures are hereby declared to be legal, and the same are ratified, and such cities are exonerated from any liability therefor.” It was held that this section of the law was void, because it did not amend the general incorporation law of cities of the second class in any respect, nor make any allusion to the legalization of taxes, for which reason the subject of the act vias not disclosed by the title. In the case of Holmberg v. Hauck, 16 Neb. 337, 20 [1018] N. W. 279, it was held that under an act entitled “An act to provide for the organization, government, and powers of cities of the second class having more than ten thousand inhabitants” the legislature could not invest the police judge of the city with “concurrent and eo-extensive jurisdiction with the county courts of all ordinary actions,” because the power and jurisdiction thereby attempted to be conferred upon the police judge were not fairly comprehended by the title of the act. In the case of State v. Lancaster Co., 6 Neb. 474, it was held that the legislature could not lawfully insert in a law entitled “An act to provide for township organization” provisions whereby the number of county officers vrere determined, and their duties defined, or other provisions which materially changed the general revenue law of the state, because the title of the act was too restricted to embrace provisions of the latter character. In Ives v. Norris, 13 Neb. 252, 13 N. W. 276, it was held that the following title, to wit, “An act regulating the herding and driving of stock,” was not comprehensive enough to authorize a provision, found in one section of the act, allowing damages for the castration of animals in certain cases. So, in Touzalin v. City of Omaha, 25 Neb. 817, 41 N. W. 796, it was held that in an act entitled “An act to incorporate cities of the first class and regulating their duties, powers and government,” it was unlawful to insert a provision declaring that “no court or judge shall grant any injunction to restrain the levy, enforcement or collection of any special tax or assessment or any part thereof, made or contemplated being made to pay the cost of any improvement.” See, also, Ex parte Thomason, 16 Neb. 238, 20 N. W. 312; Burlington & M. R. R. Co. v. Saunders Co., 9 Neb. 507, 4 N. W. 240; Smails v. White, 4 Neb. 357; Sovereign v. State, 7 Neb. 409; White v. City of Lincoln, 5 Neb. 505, 510. In the light of these principles, we proceed to consider whether the provisions complained of in the acts of 1891 and 1893 were adopted by the legislature in such manner as will satisfy the constitutional mandate. It is to be observed, in the first place, that neither of said acts is a complete law in itself, but that each act professes to amend an existing statute. The act of 1891 purports to be an amendment of certain sections of chapter 12 A of the Compiled Statutes of 1889, entitled “Cities of the Metropolitan Class,” while the act of 1893 refers to the original act of March 30, 1887, as it stood before it was incorporated into the Compiled Statutes of 1889, and purports to amend certain sections of that act. It is obvious, therefore, that if these amendatory acts contain provisions relative to a subject not dealt with by the original act which they respectively profess to amend, the new or additional subject-matter should have been referred to in the title of these acts, as otherwise it would be easy to ingraft upon an existing law any new provision, no matter how important or foreign to its original purpose. The constitution contemplates that the subject of every act shall be clearly expressed in its title, so that the members of the legislature, and the public as well, may be advised, by reading the title, to what it relates. If it was permissible, therefore, to insert in the body of an act entitled an act to amend a certain section or sections of an existing law a subject1019 matter of legislation that was not dealt with by the original act, the object sought to be attained by the constitutional provision heretofore quoted could, iu many cases, be easily defeated. Now section 79 of the act of March 30, 1887, which provided for the incorporation of metropolitan cities, simply authorized the city clerk to add to the assessment roll all storehouses, warehouses, shops, and other buildings within the right of way, or along, adjoining, or adjacent to any side track, of a railroad, used for purpose of rent by said company, or purposes other than the ordinary operations of said company. It was probably assumed by the legislature that the class of properly therein described, such as buildings used for purposes of rent, and not for the operation of a railroad, was in no proper sense railroad property, and that under the general revenue law it formed no part of the properly that was returned to or assessed by the state board of equalization. For that reason the city clerk was authorized to add that class of property to the city assessment roll. But the act of 1887 left all other property that was distinctively railroad property — such as the right of way and superstructures (hereon, main and side (racks, depot buildings and depot grounds, section and tool houses — to be assessed for city purposes, as provided in the general revenue law, by (he state board of equalization. It did not pretend to interfere with the general scheme for the assessment of railroad property that was established by the general revenue law, .and had been in force for several years. The act of 1891, however, marks a radical change in the method of assessing railroad property for the purpose of taxation by metropolitan cities that bad been pursued under existing laws, and no informa (ion or intimation of the proposed change in the method of assessment was given by the title of the act. The act. declared, in effect, that the right of way of a railroad within the limits of metropolitan cities should only include 50 feet of lands or lots abutting on each side of its main tracks, and that the city clerks of such cities should assume the functions of assessors, and assess all lots and. lands belonging to a railroad company which lay outside of the prescribed limits. This provision fixed an arbitrary limit to the right of way of every railroad within the boundaries of metropolitan dries, without reference to existing laws on that subject. Moreover, it withdrew from the jurisdiction of the state board of equalization a large amount of property that had previously been assessed by the board, and devolved upon city clerks (ho duty of assessing it for city purposes. The act of 1893 was even more far-reaching and radical in its operation, in that it directed the city clerk, after he had copied the county assessment roll or boob; to add thereto all (lie property of every railroad within the city, including its roadbed, right of way, and superstructures thereon, main and sidetracks, depot buildings and depot grounds, etc., and to assess the same for the purpose of taxation for city purposes. This was directed to be done without reference to the fact that under the provisions of the general revenue law the same property was required to be returned to the state board of equalization, to be by it assessed for taxation for all purposes, wheth [1020] er general or local. The title of this act, like the former, conveyed no information of the important changes that would thereby be effected in existing laws. In view of the premises, we conclude that so much of the acts of 1891 and 1893 as attempted to confer on the clerks of metropolitan cities the enlarged authority heretofore described cannot be sustained as a valid exercise of legislative power. These acts contained provisions relative to a subject-matter that was not dealt with by the act which they professed to amend. They conferred a new power on city clerks of metropolitan cities, to wit, a power to assess for city taxation certain railroad property which, under the law as it stood, could only be assessed for such purpose by the state board of equalization. One of the acts also undertook to define the limits of a railroad’s right of way within the limits of metropolitan cities, without reference to the manner in which such rights of way had previously been fixed or defined, which, beyond all question, was a subject not touched by the act of March 30, 1887. Changes such as these in existing statutes could not be lawfully made unless the titles of the acts conveyed more specific information of what the several acts contained. This conclusion, in our judgment, is well warranted by the construction heretofore placed by the supreme court of Nebraska upon that clause of the constitution of the state to which the present discussion relates. Indeed, considering the manner in which provisions of “great pith and moment” were worked into the body of an existing statute by legislative enactments whose titles gave no intimation of the real purpose of the acts, it is evident, we think, that the case at bar is ruled by the principles enunciated in the cases heretofore cited. A further point is made by counsel for the city of Omaha to the effect that the injunction awarded by the circuit court in its final decree is, in any event, too broad. The contention in this respect, as we understand it, is as follows: That if the acts of 1891 and 1893, which are the only ones complained of in the bill of complaint, are void, then section 79 of the original act of March 30,1887, remains in full force; and that by the terms of that act the city clerk is authorized to add certain buildings to the assessment roll, which he is precluded from doing by the terms of the present decree. With respect to this contention we only deem it necessary to say that the injunction as entered by the circuit court only relates to certain lots or parcels of land which are specifically described in certain exhibits attached to the bill of complaint, and it does not appear that the city clerk would have the power, under section 79 of the act of March 30, 1887, to add any of the property thus described to the city assessment roll, even if we were disposed to concede that that section of the law is still in force. No occasion exists, therefore, to modify the provisions of the decree as originally entered, and it is hereby affirmed.