Dunker v. Chedic

| Nev. | Jul 1, 1868

By the Court,

Whitman, J.

In March, 1865, the Legislature of the State of Nevada passed an Act entitled “ An Act to exempt the homestead, and other property, from forced sale in certain cases.”

Section second of the Act contains among other matter the following language: * * * * “ But no mortgage or alienation of any kind, made for the purpose of securing a loan or indebtedness upon the homestead property, shall be valid for any purpose whatsoever. * * * * * ”

The State Constitution, in Section 30 of Article IV, headed “ Legislative Department,” reads thus: “ A homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempted from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon; provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife; and laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated.”

The only question presented by the record in this case is as to ’ the power of the Legislature, under the Constitution, to exempt the homestead from forced sale upon a lien created by husband and wife for a loan or other indebtedness.

Save that the Legislature must obey the direct commands of the Constitution, and submit to its express or necessarily implied prohibitions, it has unlimited law-making power, and would, unless otherwise clearly commanded, or prohibited, have the right to enact the law under review; and while on the one hand Courts should strive to preserve intact the landmarks of the Constitution, on the other, they should be chary of interference with legislative power. The section of the Constitution cited opens with the proposition that the homestead “ shall be exempt from forced sale under any process of law.” This is general, clear, and distinct, and were there no exception thereto the law must stand. Next follows the declaration that it “ shall not be alienated without the joint consent of husband and wife, when that relation exists.”, It might at first sight seem that the idea necessarily conveyed by that language would have been more forcibly expressed had the section said : husband and wife may by joint consent alienate the homestead; but not so, the language used expresses the precise meaning desired. Of coui’se, no constitutional provision or statute to the contrary, every possible interest in the homestead could be alienated by joint consent. To say this was to pronounce a truism; but to say it “ shall not be alienated without the joint consent of husband and wife, when that relation exists,” was to prevent any legislative vacillation, and to settle not only .what a temporary enactment might provide, but what the law should be while that Constitution lasted.

Here, then, the double general proposition of exemption; no forced sale under any process of law, and no alienation save by joint consent of husband and wife. Then follow the exceptions, Avhich it is unnecessary to notice here. If-the word “alienation” includes within its meaning a mortgage, there can be no doubt as to the express mandate of the Constitution; and it follows that husband and wife may mortgage, and that no legislation can prevent them. The' Legislature understood that a mortgage was an alienation of some kind ; for the language’ of the statute is, “ no mortgage or alienation of any kind;” but it is unnecessary to accept a construction upon which the slightest doubt could rest; for as if, after providing generally for exemptions, and specially for exceptions, it had been suggested that the word “alienation” might not cover a “mortgage,” which might be considered only a lien created; or that there might be failure of remedy because the words “ process of law ” had been used in the first general exemption, and there was no exception thereto; in fullness of caution this language is added, to meet either or both anticipated objections: “ Provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.”

What are the “provisions of this section” ? They are: First— “ A homestead, as provided by law, shall be exempt from forced sale under any process of law.” Second — the homestead “ shall not be alienated -without the joint consent of husband and wife, when that relation exists.” These are the only provisions preceding the proviso, and to which it can refer; the other language containing only exceptions to the provisions.

This perhaps was not so elegant a mode of expression as might have been selected, but it possesses the merit of force ; better a little repetition than a chance • for doubt. Is there such chance here ? The language is found in a section of an article, the whole object of which is to direct, command, or prohibit certain legislative acts. It attempts to express some idea; thus found, and thus attempting, the natural conclusion is, that it means that the general provisions of exemption of homestead property shall not apply to such lien as is mentioned, nor to forced sale under any process of law for the enforcement thereof. If these provisions may not apply, then no legislative action can make application.

The Legislature exceeded its powers in passing the law in question, for it has said therein that these provisions of exemption should apply to a lien created by husband and wife, which the Constitution has expressly said shall not.

The District Court therefore properly ordered a decree for plaintiff. Its judgment is affirmed.

Lewis, J., dissented.