Hurford v. City of Omaha.

may, and often do imply a negative of what is not affirmed, as strongly as if expressed. So, also, if by the language used, a thing is limited to be done in a particular form or manner, it includes a negative that it shall not be done otherwise. Affirmative expressions that introduce a new rule, imply a negative of all that is not within the purview." But it is deemed unnecessary to enter into a review of the authorities upon this question.

It will be conceded that the powers of a city council are not derived from the common law; that its only power to act, in any case, is derived wholly from the statute; and therefore it possesses no power but such as is expressly granted by statute, or may be incidentally necessary to carry into execution the power expressly given by the statute. It may also be laid down as a general rule, that the power given must be exercised in the mode prescribed by the statute. Hence, when the statute prescribes a particular mode in which the corporation is to act, it can only act in the mode prescribed. To sanction a contrary doctrine, it seems to me, would place the corporation above the law, and would, to say the least, be fraught with dangerous consequences. If such a doctrine should prevail, is there not reason to fear that corporations might soon become intolerable nuisances? But however this may be, with all due deference to the authorities upon the question of construction, it seems to me, from the most replete examination I could give the subject, that the following rules may be laid down as a safe guide in the interpretation of statutes, relating to the question under consideration:

1. That when the particular provision of the statute relates to some immaterial matter, where compliance is a matter of convenience rather than substance, or where the directions of the statute are given with a view to the proper, orderly, and prompt conduct of business merely, the provision may generally be regarded as directory.

Hurford v. City of Omaha.

2. When a fair interpretation of the statute, which directs acts or proceedings to be done in a certain way, shows that the legislature intended a compliance with such provision to be essential to the validity of the act or proceeding, or when some antecedent and pre-requisite conditions must exist prior to the exercise of power, or must be performed before certain other powers can be exercised, then the statute must be regarded as mandatory. And under such statutory provisions, the corporation has no election in the matter as to how or when the duties shall be performed, and municipal officers have no option or authority to act differently from the mode particularly prescribed. And if there be manifest irregularity in the proceedings, presumptions are not indulged to sustain such proceedings, or to give new character to that which is seen to be defective, or to supply the place of that which is not apparent.

3. When the statutory provision relates to acts or proceedings immaterial in themselves, but contains negative terms, either expressed or implied, then such negative terms clearly show a legislative intent to impose a limitation, and therefore the statute becomes imperative, and requires strict performance in the mode or manner prescribed. People v. Schermerhorn, 19 Barb., 558; 1 Kent, 461, et seq.; Inhabitants of Veazie v. Inhabitants of China, 50 Maine, 526; People v. Supervisors, 11 Abbott, 104.

Now, according to these principles, it seems clear that the provisions of the statute are mandatory. They provide that when a grade has been established it shall not be changed until the damage to property owners which may be caused by such change shall have been assessed and determined; and that the amount of damages so assessed shall be tendered to the property owners or their agents, before any such change of grade shall be made.

The power conferred concerns both the public and

Hurford v. City of Omaha.

individuals, and the mode in which the exercise of it is prescribed, is accompanied with very strong negative terms. However the mayor and council, wholly disregarding the mode of procedure prescribed by the statute, and without having any data whatever, from which, under the circumstances and condition of things, at the time, they might decide whether it would be advisable for the city to incur the expense and liabilities of such an enterprise, have attempted to establish a change of grade, and to contract for the grading of the street. Is not such a

proceeding a plain violation of the statute? It is said that "no principle is more firmly established or rests on a more secure foundation, than the rule which declares, when a law is plain and unambiguous, whether it be expressed in general or limited terms, that the legislature shall be intended to mean what they have plainly expressed," and again that the intention of the legislature should control absolutely the action of the judiciary. Where that intention is clearly ascertained, the courts have no other duty to perform than to execute the legislative will, without any regard to their own views as to the wisdom or justice of the particular enactment." Sedg. on Stat. and Con. Law, 325. Do not these rules of law apply with much greater force to the action of a city council in the exercise of merely delegated powers? But the statute in question imposes a limitation on the exercise of the power delegated, requiring a condition precedent to be performed, and until this pre-requisite is complied with, it seems clear that the council acquires no jurisdiction of the subject matter. The restriction is absolute, and therefore the exercise of the power in any other way than that prescribed, renders the proceedings void. Swift v. City of Williamsburg, 24 Barb., 427.

And again, as hereinbefore stated, the action of the council from the first step taken in the matter, may

Smails v. White.

affect rights of property and result in divesting the title to property of one citizen, and transferring it to another. Hence the statute must be strictly construed, for it has been said that every statutory authority in derogation of the common law to divest the title of one, and transfer it to another must be strictly pursued, or the title will not pass.

In Creighton v. Mason, 27 Cal., 728, it is said that "when summary proceedings are authorized by statute, the effect of which is to divest or affect rights of property, the statute must be strictly construed, and the power conferred must be exercised precisely as given; any departure vitiates the whole proceeding." Stucker v. Kelly, 7 Hill, 25. This rule of law is so well established upon principle, and authority, that it is unnecessary to cite authorities in support of it.

For the reason given in the discussion of the second general proposition, we think the action of the council, at least so far as regards the plaintiffs, was without authority and absolutely void, and therefore the decree rendered in the district court should be affirmed.

DECREE ACCORDINGLY.

N. W. SMAILS, AND OTHERS, PLAINTIFFS IN ERROR, V. CHARLES F. WHITE, DEFENDANT IN ERROR.

1. Constitutional law: APPEAL ACT OF 1875. The act "regulating appeals from the judgments of probate judges and justices of the peace," Laws, 1875, p. 58, being in contravention of that clause of the constitution, that "no bill shall contain more than one subject, which shall be clearly expressed in its title; and no law shall be revived or amended, unless the new act contains the entire act revived, and the sections amended," etc., is void.

2.

: AMENDING STATUTES. Where an act is not complete in itself, but is clearly amendatory of some former statute, it is within the consti

Smails v. White.

tutional inhibition above cited. Nor would it make any difference in this respect, whether by its title, or in the body of the act, the new statute assume to be amendatory or not; it is enough if it clearly have that effect.

THIS was a petition in error from a final order of the district court of Lancaster county, dismissing an appeal, taken by the defendants from a judgment of the probate court in a civil action therein determined, in May, 1875.

Lamb, Billingsley & Lambertson, for plaintiffs in error, in contending that the appeal act of 1875 was unconstitutional, cited The People v. McCallum, 1 Neb., 199. Cooley Const. Lim., 151. State v. Silver, 9 Nevada, 227. Winona v. Waldron, 11 Minn., 515. People v. Mahaney, 13 Mich., 497. Draper v. Falley, 33 Ind., 470. The Mayor v. Trigg, 46 Mo., 288. City of Portland v. Stock, 2 Oregon, 69.

Groff & Ames, for defendant in error, cited Bird v. The County of Wasco, 3 Oregon, 282. Lehman v. McBride, 15 Ohio State, 601.

LAKE, CH. J.

This case calls for a construction of the act of the legis lature "regulating the taking of appeals from the judg ments of probate judges and justices of the peace," approved, February 24th, 1875. It is contended, on the part of the plaintiff in error, that it violates the provision of the constitution, then in force, which declares that "no bill shall contain more than one subject, which shall be clearly expressed in the title; and no law shall be revived or amended, unless the new act contain the entire act revived, and the sections amended; and the section or sections so amended shall be repealed." It is clear that if effect shall be given to the act in question, the appellant was in default in not causing the transcript, and undertaking, to be filed in the appellate court within