
    State, ex rel. Frank N. Prout, Attorney General, v. Thomas J. Nolan et al.
    Filed February 17, 1904.
    No. 13,327.
    1. Quo Warranto: Answer. An answer to a petition in quo warranto, which alleges that the respondent are holding the office in question by lawful appointment, under the provisions of a legislative act, and which sets forth the facts in. relation thereto, is sufficient to put the validity of such act in issue.
    2. Legislative Act: Constitutionality. A legislative act should not be declared unconstitutional, unless it is so clearly in conflict with some provision of the fundamental law that it can not stand.
    3. Police Commissioners: Appointment. "The legislature may, by statute, confer upon the governor the power to appoint the hoard of fire and police commissioners for cities of the first class:
    4. Statutes: Repeal. Where general and special provisions of a statute come in conflict, the general law yields to the special without regard to priority in dates, and a special law will not he repealed by general provisions, unless by express words or by necessary implication.
    5. -: Construction. The several sections and provisions of a legislative act should he construed together, and harmonized if possible; and, if there is a conflict in them, general expressions must give way to special and specific provisions.
    6. City Charter: Validity. That part of the charter of South Omaha, providing for the election and defining the jurisdiction of the police judge, is separable from the rest of the act, and, if necessary, may be rejected without affecting the validity of the charter.
    7. Fire and Police Board: Legality. Held, That the respondents are the lawfully constituted board of fire and police commissioners of the city of South Omaha.
    Original application in the nature of quo warranto to determine the rights of respondents to office as fire and police commissioners of a city of the first class.
    
      Writ denied.
    
    
      Frank N. Prout, Attorney General, Norris Brown, Smyth & Smith and A. JEL. Murdock, for relator.
    
      F. A. Brogan and James E. Van Dusen, contra.
    
   Barnes, J.

This original action in quo warranto was commenced by the attorney general for the purpose of testing the validity of chapter 17 of the laws of 1908, otherwise known as the South Omaha Charter, and more' particularly that part of the act which provides for the appointment of a hoard of fire and police commissioners. To that end a petition was filed against the respondents, Thomas J. Nolan, A. L. Bergquist, William B. Van Sant, Alfred A. Nixon and George W. Masson, praying that they he required to show by what Avarrant or authority they assumed to act as fire and police commissioners of the city of South Omaha, and claimed to hold such public office. To this petition the respondents filed an ansAver, Avhich was demurred to by the relator. Thereafter, by permission of the court, an amended ansAver Avas filed, in which respondents properly justified under the provisions of the act in question. The demurrer was not refiled but, it having been treated as though it applied to the amended an-sAA'er, we will consider it as refiled, and thus the validity of that part of the act under Avhich the respondents were appointed, and uoav hold their office, is put in issue. The act in question is chapter 17 of the laws of 1903 (Compiled Statutes, ch. 13, art. II), and will he hereinafter referred to as the charter.

It is stated in relator’s brief that the answer is insufficient in form and substance, but, the amended answer having been filed after that part of the brief was written, and the defects of the original answer, if any, having been cured thereby, it is unnecessary to devote any further time to the pleadings, so we come at once to the consideration of the question of the validity of the charter. It may be stated at the outset that we should not declare a laAV void for slight and trivial reasons, but, if possible, sustain the legislative will. So, in the examination of this question, we will be governed by the rule, that a legislative act will not be declared unconstitutional, unless it is so clearly in conflict with some provision of the fundamental law that it can not stand.

Section 63 of the act provides for a hoard of fire and police commissioners to consist of five electors of the city, appointed by the governor. It also makes specific provisions as to when and how the appointments shall he made, and term of office; it also defines the qualifications of members of the board, together with the powers and duties of that body; and the relator’s attacks are particularly directed to this part of the charter. The general question relating to the constitutionality of such legislation has been before us several times. .In the case of State v. Broatch, 68 Neb. 687, the validity of such a provision was the question before the court. The Omaha charter, Avhich was in question in that case, provides for the appointment of a board of fire and police commissioners by the governor, and its validity was attacked by a proceeding in quo warranto. It was held:

“The legislature may by statute confer upon the governor the power to appoint members of the board of fire and police commissioners of cities of the metropolitan class”; citing Redell v. Moores, 63 Neb. 219. These cases clearly overrule all of the prior decisions of this court holding a contrary doctrine, and so, it may be considered as the settled law of this state that the section in question is constitutional, so far as that phase of the controversy is concerned. Again, it is apparent, from an examination of the whole act, that it was the purpose of the legislature to substantially reenact the charter of 1901 under which the city was conducting its affairs at the time the new charter was passed, with only such changes and amendments as would place the fire and police department of the city under the control of a board to be appointed by the governor of the state, instead of a board appointed by the mayor, and confirmed by the city council. It is clearly the duty of the state, in the exercise of its police powers, to maintain peace and good order, and protect the welfare of its citizens wherever they may be found within its borders. And. whenever it appears that any of its municipalities are, for any reason, unable to maintain such conditions of security and good order, it is proper for the legislature to enact such laws as will accomplish that end. Of late, it lias been quite generally recognized that there are conditions existing in some of our cities, growing out of the appointment and management of their police departments, with which the local authorities are unable to successfully cope; and that an independent board, created by an authority entirely removed from, and in no way influenced by, local conditions, can best conserve the interests of the public in those matters- That policy first found expression in the Omaha charter of 1887, and was the subject of much litigation, and some conflicting decisions, until the principle was finally and firmly settled in the case of State v. Broatch, supra. And so, the legislature, in order to adopt this policy, reenacted the old charter with the changes above mentioned, and, in so doing, we are satisfied that it did not exceed its legitimate powers; if the legislature has attempted to go beyond its powers -in authorizing this commission to control matters purely local, such provision might be held invalid, without rendering the whole act unconstitutional.

It is claimed, however, that section G3, in so far as it defines the powers and duties of the board, is in direct conflict with subdivision 78 of section 128 of the charter. This is one of the subdivisions of the section conferring general powers upon the municipality, and is as follows:

“In addition to the powers herein granted, cities governed under the provisions of this act shall have power by ordinance: To provide for the organization and support of a fire department; to procure fire engines, hooks, ladders, buckets, and other apparatus, and to organize fire engine, .hook and ladder, and bucket companies, and prescribe rules of duty and the government thereof, Avith such penalties as the council may deem proper, not exceeding one hundred ($100) dollars, and to make all necessary appropriation therefor, and to establish regulations for the prevention and extinguishment of fires.” And it is contended that this subdivision must prevail because it was passed last in point of time, or, in other words, appears last in position in the charter. This, it is insisted, works a repeal of section 68, by implication. Repeals by implication a.re not favored, and the courts will not declare them unless compelled to do so. And where there is a conflict between two sections of an act, one being a reenactment of a former provision, and the other a new provision inserted in the law as reenacted, the latter will stand because it is the latest expression of the legislative will. Sutherland, Statutory Construction (1st ed.), p. 210, sec. 156; p. 216, sec. 161; Endlich, Interpretation of Statutes, sec. 183; Graetz v. McKenzie, 3 Wash. 194; Winn v. Jones, 6 Leigh (Va.), 74; Congdon v. Butte Consolidated R. Co., 17 Mont. 481; Powell v. King, 78 Minn. 83. But it is by no means certain that there is an irreconcilable conflict between the provisions of section 63 and the subdivisions and sections pointed out by the relator. Section 8 of the charter, which declares in a general Avay by whom tin» corporate powers shall be exercised, reads as follows:
“Each city governed by the provisions of this act shall be a body corporate and politic, and shall have power: First, to sue and be sued; second, to purchase and hold real and personal property for the use of the city, and real (‘state sold for taxes; third, to sell and convey any real and personal estate owned by the city, and make such order respecting the same as may be deemed conducive to the interests of the city; fourth, to make all contracts and do all other acts in relation to the property and concerns of the city necessary to the exercise of its corporate and administrative; powers; fifth, to exercise such other and further power as may be conferred by law. The powers hereby granted shall be -exercised by the mayor and city council of such city, as hereinafter set forth, except when otherwise specially provided.” Bearing in mind the exception above quoted, the rule that the several sections of the charter must be construed together and harmonized, if possible, and tbe further rule that, where there is a seeming conflict between the several provisions of a legislative act, general expressions must give way to special and specific provisions, it is quite possible that the board and council may properly conduct the government of the city without serious conflict of authority.

It is also contended that the provision giving power to the governor to remove members of the board for misconduct in office is in conflict with section 84, which apparently gives the same power to the district court. If this be true it is not sufficient ground for declaring the whole act void, for that provision can be expunged from the charter, and it will still be so complete as to furnish ample authority for the proper government of the city.

It is further contended that the charter must be declared unconstitutional and void, because of its provisions relating to the election of the police judge and his jurisdiction. This contention can not be maintained. This question was under consideration and was settled in Moores v. State, 63 Neb. 345, and State v. Moores, 70 Neb. 48, where it Avas held that the provisions of the constitution creating a police judge in municipalities were self-operating, and that, in the absence of valid enactments in the charter providing for their election, they could properly be elected at the regular biennial elections.

Lastly, it is claimed that there are many other conflict-, ing provisions in the various sections and subdivisions of the charter. Under the rules above stated nearly, if not quite, all of these apparent conflicts can be reconciled, and the irreconcilable ones, if any, are not of sufficient importance to invalidate the act. But none of these matters require our consideration. The only question involved in this action, in its present form, is the validity and the constitutionality of that part of the charter under which the respondents hold their office, and, as we have seen, that part of the act is valid. This action only tests the right of respondents to hold the office in question, and can not be used for the purpose of restraining a public officer, or person exercising a public franchise, from doing any particular act or thing, the right of doing which is claimed by virtue of such office or franchise, and which constitutes a portion, only, or an integral part, of the rights, powers and privileges incident thereto. High, Extraordinary Legal Remedies (3d ed.), sec. 636; State v. Evans, 3 Ark. 585, 36 Am. Dec. 468; People v. Whitcomb, 55 Ill. 172.

The charter being valid, and the respondents having shoAvn by their answer that they are holding the office in question by legal appointment thereunder, that they have qualified and are exercising the functions of their office, it folloAvs that the relator is not entitled to the Avrit of ouster. The demurrer to the answer is overruled, the writ denied, and the action dismissed at the costs of the relator.

WRIT DENIED.  