Omaha daily bee., 1909-11-16
NEW BOARD MAY NOT SERVE
Opinion in Case is Written by Judge
]. B. Barnes.
JUDGE DEAN DOES NOT AGREE
Question of Eligibility of 7. ].
Majors Not Passed Upon.
ACT AMENDS LAWS NOT IN BILL
Two Separate and Distinct Acts
Passed mt Different Sessions
Cannot be Amended in
This Way.
ct AMENDS LAWS NOT IN BILL
From a staff Correspondents

LINCOLN, Nov. 15.-(Specail.) THE law
enacted by the late legislature creating a |
new normal board and abolishing the old |
normal board has been declared uncon- |
stitutional by the supreme court
The decision was written by Judge John !
b. Barnes, Judge Rose concurrlng I'm a |
separate opinion; Judges Letton, Fawcett |
and Root concurring, but not writing an
opinion. Chief Justice Reese concurred in
part and dissented in part Judge Dean
dissented.
AS the new normal board was declared
unconstitutional the court did not pass
upon the eligibility of Thomas j, Majors,
a member Of the new board who was ap-
pointed by Governor Shallenberger while
still a member of the legislature which
created the new board.
The syllabus follows:
THE title to chapter Is of the laws Of
! 1854. establishing a system of public instruc-
ton for the state of Nebraska, is broad
enough to cover any and all necessary pro-
visions relating to that subject, and what
ever might have been originally made a
part of that law may, at any time, be en-
grated upon 1t by legislation processing
to be amendatory if germane to the section
or sections amended.
1.-THE provisions Of the amendatory act
Of 1909 relating to the qualification, and
the manner of appointing the members of
the normal Board of Education are
germane to the subject of section 1. as
contained in the act of 1884, establishing a
system of public instruction, and are
properly made a part thereof by amend
ment.
III. r. 2S6 of the laws of 1909, violates .he
provisions of section IL Of article of the
constitution in that, 1t amends by i'm
plication, section 21 subdivision Is Of
chapted 20 complied statutes 1907, and does
not contain the sections as amended or
purport to repeal the same.
1.-TWO separate and distinct acts adopted
at different sessions of the legislature can
not be amended by an act which purports
to amend only one of them"
The opinion says "The amendatory act
contains an attempt to amend and repeal
the governing statute of the eRarney Nor.
NAL school by amendment of an inde-
pendent statute relating to the State Nor
NAL school at Peru and for that reason
contravenes the constitutional provision
that no law shall be amended unless the
new act contains the section or sections
so amended and the section or sections 81
amended shall be repealed.
1T was suggested in consultation tha
the point last above ntioned was no
= presented on the argument or in the briei
t of the relator, and therefore should no
be considered. The answer to the sug.
gestion is that this is an action on behalf
Of the state brought by the attorney gen
eral to test and determine the question
Of the validity Of the statute In order tC
, further the educational interests of tn,
state, and II for any reason we are con
Itlv hat ~ 49,.
we ought to so determine; for If the courts
i can, under such pretext nulllfy the con
sttution we will soon find ourselve
openly defying the provisions of the funda
mental law which we have solemnll
sworn to uphold"
>. Chief Justice Reese says the act is eff
: fective insofar as 1t relates to the Per-
= Normal school, but not to the school a
!, Kearney. Judge Reese says: "Ther
: seems to have been no effort made [
= reach that institution or in any way [
= molest #, and therefore, 1t will be man
aged, controlled and governed as hereto
fore. This state of things, il true is t
Z be deplored, but we must accept the la,
and the constitution as we find them"
Judge Dean in a dissenting opinion ex
presses the view the new act does not con
travene section IL, article Ill., Of the const
tuition.
THE purpose, the intent and spirit {
the fundamental law is fulfilled wen IN
:. subject OF the section sought to be re
pealed is fairly and clearly identified an
referred to by the language Of the amenda
tory act even though the section numbe
ie may be omitted. The constitution is nC
ID to be construed so as TO destroy legislatio
n that is not clearly inhibited by its lar
~ guage. A great peril lies in the direcuo
I'd Of judicial annullment OF the legislatiy
es viii that is not clearly and beyond quei
a. ton warranted by reasonable interpreta
Id tlon OF that instrument It has been we
ry ,-