Senate Chamber, Lincoln, Nebraska,
Friday, October 17, 1919.
The Senate was called to order by the President at 10 o'clock a. m.
The roll was called, and the following Senators were present:
Messrs. Ainlay, Barr, Bushee, Brooks, Cooper, Chappell, Cronin, Cordeal, Erickson, Hammond, Hoagland, Harriss, Hall, Houston, Johnson, Neal, Peterson, Randall, Robbins, Reed, Sears, Saunders, Siman, Swanson, Tanner, Taylor, Warner, Watson.
Absent, Excused: Bradstreet, Good, Sturm, Weaverling, Weston.
Prayer was offered by the Chaplain.
Pending the reading of the Journal for the third day, Senator Hammond moved that further reading of the Journal be dispensed with, and that the Journal as prepared by the Secretary be approved.
The motion prevailed.
Mr. Robbins offered the following motion:
Mr. President: I move that the Secretary of the Senate be, and he is hereby authorized and directed to arrange with the Chief Clerk of the House of Representatives for the printing of the Journals of the Senate and House in one volume.
The motion prevailed.
The following bills were read the second time and referred to appropriate committees:
Bills on Second Reading
House Roll No. 1--By Harry A. Foster, George B. Dyball, James Allan, Louis Berka, Victor D. Reynolds, Robt. C. Druesedow, A. C. Harte, Jerry Howard.
A Bill for an Act to amend Section 1, 3 and 4 of Chapter 184, Session Laws of Nebraska for the year 1919, and to amend Section
4199 of the Revised Statutes of Nebraska for the year 1913, and to amend Section 4200 of Revised Statutes of Nebraska for the year 1913, and to repeal said original sections, and declare an emergency.
House Roll No. 2--By Committee on Finance, Ways and Means.
A Bill for an Act to provide for the payment of the incidental expenses incurred during the Thirty-ninth Session (Extraordinary Session) of the Legislature of the State of Nebraska, and to declare an emergency.
House Roll No. 3--By Committee on Finance, Ways and Means.
A Bill for an Act to provide for the payment of members, officers and employees of the Thirty-ninth Session (Extraordinary Session) of the Legislature of the State of Nebraska and appropriating the sum of ten thousand six hundred dollars therefor, and to declare an emergency.
The following communication from the Attorney General was received and read at large and referred to Committee on Judiciary:
Communication From Attorney General
Lincoln, Nebraska, October 16, 1919.
To the Honorable Harry A. Foster,
State House, Lincoln, Nebraska.
Dear Sir: I am writing this in reply to your informal verbal request for some information relative to the enactment of a proposed amendment to House Roll No. 1 of the present session, which amendment purports to amend Section 4200 of the Revised Statutes of Nebraska for 1913, and which amendment is an attempt to abolish the civil service provisions from the Omaha Police Department.
You desired information as to the following questions:
1--Whether, under the terms of the executive proclamation which convened the present extraordinary session of the legislature, such a bill could legally be passed.
2--Whether, if such a bill were passed as an amendment to the present House Roll Number 1, it would endanger the constitutionality of the entire House Roll Number 1.
In answer to your first question, let me point out the following condition. At a general legislative session the legislature is without restriction except as to certain fundamentals in regard to the subjects about which it may legislate. But in the case of extraordinary or special sessions, our state, in common with practically all other commonwealths, has a constitutional provision which forbids the legislature in special session to deal with general subjects, and, quoting the words of our provision, "the legislature shall enter upon no business except that for which they were called together."
From this constitutional provision it is therefore apparent that the subject of your legislative enactments is confined to the matter set forth in the execuive (sic) call. Besides providing for certain bond issues, the legislative call provides for the consideration of the following subjects:
1--Increasing the pay of city police;
2--Permitting the city to borrow to pay increased police;
3--Changing the taxation levy;
4--Removing restriction in regard to the offices of chief of police and inspector of police.
It is my opinion, and, I am glad to say, it is the unanimous opinion of the lawyers attached to my department, that the proposed amendment which undertakes to abolish the civil service requirements in the Omaha police department is not within the scope of the legislative call, and that for that reason the proposed amendment, if enacted, would not be a valid statute.
Our attention has been called to the case of C. B. & Q. Railroad v. Wolfe, 61 Neb. 503, in which case our supreme court said that the legislature could enter upon such business "as is included in the objects of legislation stated in the proclamation by the executive." This case is apparently in conflict with the opinion which we set forth above, but this case arose under the old state constitution of 1865, in which constitution the provision differed from the present constitutional provision. In that case the constitution allowed the legislature "to prosecute such business as relates to the object for which they were convened." It is apparent that at that time the legislature in special session had the power to take up any subject which was germain to the proposition set forth in the executive call. Under the present constitution our opinion is that the legislature is not entitled to take up any subject merely because it may have some possible bearing on the legislative call, but that at present the legislature must confine itself to the distinct legislative program or business "for which they were called together." At the same time, this department is well aware that there are many excellent attorneys in both branches of the legislature who do not agree with the conclusions hereon set forth. This department has no desire to set itself up as a final court of adjudication of these matters, which it is not. The question raised by the proposed amendment to House Roll Number 1 has not been passed upon by our supreme court; it is therefore impossible for this department, or any other lawyer, to give a definite answer to the proposition.
Second. In regard to your second question, as to whether the enactment of this proposed amendment might defeat the validity of the entire House Roll Number One: Our conclusion is that there is grave danger of this being the case. We feel that if the proposed amendment to House Roll Number 1 is not valid as a separate bill or is invalid as an amendment, that it is apt to defeat the entire purpose of House Roll Number 1.
May I therefore suggest to your Honorable Body that if it is the sentiment of the legislature that the proposed amendment to House Roll Number 1 be adoped (sic), that a further amendment, being Section 3, be made to House Roll Number 1, which might be drawn in the following form:
"Section 3. If any clause, provision, paragraph or section of this act be held invalid or unconstitutional for any reason whatsoever, that holding shall not affect the validity of other portions of this Act which might be otherwise valid."
It is the opinion of this department that with such a saving clause appended to the proposed amendment to House Roll Number 1 that the first section of House Roll Number 1 would be held valid.
The solution of adding a saving clause to this amendment which I have herein suggested I think will settle the difficulty about the proposed amendment without it being necessary for me or any one else to take any definite stand on the constitutionality of the proposed section itself. Respectfully submitted,
CLARENCE A. DAVIS,
Mr. Cordeal offered the following motion:
Mr. President: I move that the Senate now recess until 11 o'clock a. m.
The motion prevailed.
The senate convened after recess, and was called to order by the President.
Senator Taylor called up the resolution which was laid over under the rules yesterday, and, by unanimous consent, the resolution was again laid over for one day.
WHEREAS, The Governor has, during recess, made appointments of secretaries of departments under Section 7 of Chapter 190 of the Session Laws of 1919, and that such nominations can only be temporary, and that the next meeting of the Senate is now in session, and the Governor should now transmit to the Senate nominations for permanent appointments to such offices for action of the Senate thereon. Therefore, be it
RESOLVED, That the Governor be, and he is hereby requested to comply with Section 7 of Chapter 190 of the 1919 Session Laws, and transmit his appointments for such offices to this Senate.
|W. V. HOAGLAND,
W. H. HAMMOND,
H. E. SIMAN,
The resolution was laid over under the rules for one day.
At 11:45 Mr. Cordeal offered the following motion:
Mr. President: I move that we do now adjourn until nine o'clock tomorrow.
The motion prevailed.
CLYDE H. BARNARD, Secretary of Senate.