Omaha daily bee., 1895-09-18

a. =.
being called to appoint fire and police commits
'i9ners OF the city of Omaha.
of the said fire and police commissioners of said |
city for the term ending December 81, 1896.
Der 81, 1895. and A. c. Foster for the term end |
ing December 81, 1897. and commissions in
There being no other business, after waiting |
until II o'clock a. IN. OF said date. the board |
II. e0fd C RussELh. ssia i"u Chairman sPn Pro Tenn.
n. s. CHURCHILL, Secretary.
referred to as leef the new " Board H." Messrs;
Strickler str ,,a and Smith, upon the appointment ae
nized the title OF the latter, and refused to
join In resisting their claims to the offices.
NOT KEEPER OF CONSCIENCE.
1t should be remarked as preliminary TO
n examination of the cause on its merits
legislative conscience and that the motives
of members of the respective houses or the
no and % f H act
That T act Is, we may assume, as are most.
of counsel should have been addressed to
another, another department Of the government; g,;i1
criticlse or defend it as a matter of legisla-
tive policy. 1t should be remembered, too,
that all presumptions are in favor of legis;,
invalid unless plainly and irreconcilably In
conflict With the constitution. With these m
consideration of the questions discussed and
which will, 50 far as practicable, be exi
for the old board.
IT iss in the first place claimed that section
act of 1882 amendatory thereof, and that
the attempted amendment of 1895 is accord
ingly without force or effect. That argu..
ment renders necessary an examination OF
the several acts mentioned, so far as they
relate to the subject in hand Section 1i5,
as originally adopted. not only provides for
a Board of Fire and Police Commissioners,
not more than two Of whom shall belong to
deGes Re ss and nes The
act of 1889, entitled, AN act to amend sec
9n las and to repeal said sections as here
of the section amended, except that 1t pro-
vides for the, government and control of the
Board of Fire and Police. instead CT by
ordinance; and the further provision therein
the board boa The act Of 1881 provides fer the
appointment, OF the members of the board
largest G number ' of Votes at the e last pre sae
cedng election, but is otherwise a re-enact-
ment of section las as previously amended. j..
The following paragraph from the brief of
counsel is the strongest possible presenta
tlon of the question from the standpoint
by section 49, chapter 3, laws of 1889, and
the section as originally enacted vas re-
ton as, act of 1889 was carried into the
compiled statutes as section l45, chapter l2
(a) entitled cities of the metropolitan class
chapter I, laws of 1891. in the title of which
It was designated as section las of chapter
amended was expressly repealed; so that
section 145. chapter II Of the compiled
that continued thereafter in force was
neither s. section TT l4S of the sSd act Of 1857 nor 9g
e Se S ae of of hG s of Ss ea ec9n M
the act ao Of 1887 had not 9to- been in existence
snS snf1 Is sS fhs act f 1895 touches nothing
The fallacy Of that argument lies in the
assumption that the effect of the mandatory
| acts is in proper sense a repeal of the orig
! inal section.
NOT STRICTLY A REPEAL
True, as provided by SECTION es H. article ill.,,
amended unless the new act contains the
| section or sections amended. and the sec
tion or sections amended shall be repealed"
| But the term repeal is therein evidently
-employed in the sense in which it was un-
derstood at the time the constitution was
adopted. 1t had before that time been
definitely settled rule of construction
| that the simultaneous repeal and re-enact-
ment of the same statute in terms or in
| substance is a mere afiirmance of the orig
constitutional sense Of the term: (hly vs.
n, Y; ss2; Fullerton vs. Spring 9 wis. s7l
Middleton sltlk ys r. r. Co., 2G & n : y e., 26s;;
rght co. VS. vs oaEsy 1e Vet Wa % & paoo aSa Mfl tbe
nized by this court. (see State VS. .McColl, 9
the following language: I'VE hold that
where the re -enact ctment is in the words of
| the old statute and was evidently intended
| to continue the uninterrupted operation of
such statute. the new act or amendment
and not In proper sense a repeal"
| The act of 1891 did not abolish section 145,
but on the contrary re-enacted 1t in terms
| with the exceptions above noted Nor is the
fact that the act of 1891 refers to the section
| as 1t appears in the compiled statutes at
| all material, since 1t was the original act
which was amended the reference to the
the cases to which we are referred by coun-
| sci for the old board, Coffin VS. Rch as
Me- 5o7 has been cited , as an apParent eS, so
| Am. Eng. Encycy of Law, 515) But the
later statute, as appears from a careful
stockhoders Of corporations liability 'dns- dif-
ferent from that of the former act, and was
as Of rePea' fb d Id'her thdn
| Louisville & Nashville r. r. Co. VS. East st.
Louis, 134 Ill. 656, the facts are not fully re-
| ported, but 1t appears from the opinion of
| the court that the legislature had attempted
| to amend section which had been pre-
Sompse seoton IT Cannot Se
| whether the act referred to was amenda-
| tory merely or whether 1t substituted new
ton. ton '''''''e' - '''''''' ''' '"' A' ''
In the State vs. Benton, 80 Neb.,, s2s. the
pealed by implication, leaving nothing to
which the amendatory act could apply. In
| han VS. CTdlS, lZo, lnu Olo, tne question OF
| the validity of the latter statute was not
determined the court preferring to. treat
| the acts as in part materia. Although
| tain the proposition here asserted and may
| be regarded as exceptions to the rule
| other cases cited deal with repeals proper
| rather than amendatory acts, and need not
| be examined at length. The great object
| to be attained by the constitutional re-
| quirement is certainly in legislation and tC
| avoid the doubt and perpeXity which would
| inevitably result from the amendment OF
| statutes by reference to sentences words
| AS said by this court In State VS. Babcock
% Neb.. lbs: "All that the law requires is
that the amendatory statute shall be definite
and certain as to the act amended, and
| When tested by that rule ii would seem
that the reference to the prior act as section
las of the act of 1887 'and as subsequently,
| amended" Is not appropriate merely, but Is
probably the most accurate that could have
been devised, since it satisfies the demand
| of the constitution and is consonant with
| reason.
ACT NOT BROADER THAN ITS TITLE
1t is next argued that the provision of the
law OF 1885, for the removal by the officers
designated as the appointing board, of fire
and police commissioners. for official mis-
conduct, is broader than its title and ac-
cordingly invaldates the entire act But
that law is, as we have seen. amenda tory
of the law of 1887. and not an independent
measure, hence We must look for its title
to the act last mentioned. We shall moi
examine the cases cited from other states
since every phase of the question presented
has been fully considered by this court