State ex rel. Thompson v. Majors , 85 Neb. 375 ( 1909 )

Rose, J.,

concurring.

To my mind Judge Barnes demonstrates that the legislature could not change the provisions of the act governing the state normal school at Kearney by a bill limited to the sole purpose of amending the act governing the state normal school at Peru, without violating the constitutional provision that “no law shall be amended unless the new act contain the section or sections so amended and the section or sections so amended shall be repealed.” Const., art. Ill, sec. 11. That the legislature of 1909 attempted to change the management of the state normal school at Kearney in the manner stated is in my judgment shown in unmistakable terms on the face of the amendatory act itself. By amendment of a single section of the Peru normal school act there is an attempt to wrest from the present board of education and transfer to a newly created “Normal Board of Education” the entire control and management of the Kearney normal school. The -act purporting to amend only the Peru normal school act declares: “There is hereby created a board to be known as ‘The Normal Board of Education,’ which board shall lime control and direction of the normal education of the state, including normal schools and junior normals, and which board shall succeed to and taha the place of mid exercise the powers of the present ‘Board of Education” Comp. St. 1909, ch. 79, subd. XIII, sec. 1. It was therefore the intention of the lawmakers, as declared by their language, to change the management of the Kearney normal school by an amendment of the Peru normal school act. The members of the normal board of education appointed under that amendment of the Peru normal school act understand by it that they have authority under it to take charge of the school at Kearney, and are attempting to do so. One of the purposes of this suit is to prevent them from managing and controlling that school. The opinion prepared by Judge Barnes shows conclusively that the amendatory act is void in so far as it attempts to confer on defendants the power to manage the Kearney normal school, and I concur in his conclusion that the entire amendatory act is condemned by the constitution. The language which confers on the new board the power to control the school at Kearney is the identical language giving it control of the Peru normal school. How can the language be separated? When the unlawful provision is smitten by the constitution, nothing remains. The words employed to amend the Peru normal school act are the words which contain the unlawful amendment of the Kearney normal school act. How is it possible to strike out the words forbidden by the supreme law and leave any expression of legislative will? When the void part is eliminated, nothing remains. The intention to amend the Peru normal school act is found in the language which discloses the intention to amend the Kearney normal school act. With the void provision eliminated, where is the expression of an intention on the part of the legislature to amend the Peru normal school act? It has no existence. These questions are all answered by the following language of Chief Justice Holcomb: “Where a part of an act is unconstitutional, because contravening some provision of the fundamental law, the language found in the invalid portion of the act can have no legal force or efficacy for any purpose whatever.” State v. Insurance Co., 71 Neb. 335.

I am unable to discover in the amendment any valid provision, and I agree that the writ should issue. .