34 Nev. 283 | Nev. | 1911
By the Court,
The petitioner, Ah Pah, was convicted on the 26th day of May, 1911, in the justices’s court in Reno, Nevada, for keeping a house of ill-fame within 800 yards of a certain designated schoolhouse, situated in the city of Reno, and sentenced to pay a fine of $50, or, in the event he failed to pay said fine, to serve twenty-five days in the county jail. Failing to pay the fine, petitioner was arrested and taken into legal custody, and now seeks the aid of this court, through habeas corpus proceedings, to relieve him of the judgment, because, as maintained, the section of the law under which he was convicted (Stats. 1911, c. 133) was unconstitutional and void.
It is urged in support of petitioner’s contention that the sections in question are unconstitutional upon several grounds, which we will review in the order they are raised.
First, it is contended that the sections are unconstitutional, for the reason that the title of the act in question is in conflict with section 17, article 4, of the constitution of Nevada, which provides: "Each law enacted by the legislature shall embrace but one subject, and matters properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but, in such case, the act as revised or section as amended, shall be reenacted and published at length.”
Practically this same constitutional phase was recently before this court for consideration in the case of State ex rel. John Sparks et al. v. State Bank and Trust Company et al., 31 Nev. 456, and this court, in passing upon the question, used this language, which, we believe, analogously reasoning, disposes of this point contrary to the petitioner’s contention: "It is claimed that this act is in violation of section 17, article 4, of our state constitution,
The title of the act under consideration reads as follows: "An act concerning public schools, and repealing certain acts relating thereto.” Sections 217 and 218 (Rev. Laws, 3457, 3458) under which petitioner was convicted, read as follows:
" Sec. 217. It shall be unlawful for any owner or agent of any owner, or any person, to keep any house of ill-fame, or to let or rent to any person whomsoever, for any length of time whatever, to be kept or used as a house of ill-fame, or resort for the purpose of prostitution, any house, room, or structure situated within eight hundred yards of any schoolhouse or schoolroom used by any public or common school in the State of Nevada, or within eight hundred yards of any church edifice, building, or structure, erected and used for devotional services or religious worship in the State of Nevada.
" Sec. 218. Any person violating the provisions of section 217 of this act shall be deemed guilty of a misdemeanor, and on conviction shall be fined not less than twenty-five dollars nor more than three hundred dollars, or to be imprisoned in the county jail not less than five nor more than sixty days, or by both fine and imprisonment, in the discretion of the court. ”
The title of the act in question, we believe, sufficiently expresses the subject of the act, and is sufficiently general in its scope to make it illegal to conduct houses of ill-fame within 800 yards of a schoolhouse, and broad enough to avoid the constitutional inhibition invoked. (State ex rel. John Sparks et al. v. State Bank and Trust Company et al., 31 Nev. 456-475; State v. Gibson, 30 Nev. 353; Bell v. District Court, 28 Nev. 280, 1 L. R. A. (N. S.) 843, 113 Am. St. Rep. 854; State v. Ah Sam, 15 Nev. 27, 37 Am. Rep. 454; State v. Commissioners, 22 Nev. 399; Ex Parte Livingston, 20 Nev. 287; State v. Commissioners Humboldt County, 21 Nev. 235; People v. Bank of San Luis Obispo, 154 Cal. 194, 97 Pac. 307; People v. Superior Court, 100 Cal. 105, 34 Pac. 492; Abeel v. Clark, 84 Cal.
It is next contended by counsel for petitioner that the law under which petitioner was convicted is void for the reason: " That the justice court of Reno Township, County of Washoe, State of Nevada, acted wholly without jurisdiction in passing judgment upon the petitioner, and in sentencing and ordering petitioner to be kept in custody of the said C. P. Ferrell, as sheriff of the County of Washoe, State of Nevada, for the reason that, by virtue of a certain act of the legislature of the State of Nevada, approved March 16,1903 [Stats. 1903, c. 102], entitled 'An act to incorporate the town of Reno,' and to establish a city government therefor, ’ as amended by a certain act of the legislature of the State of Nevada, approved March 13,1905 [Stats. 1905, c. 71], entitled 'An act to amend the title of, and to amend an act entitled "An act to incorporate the town of Reno, and to establish a city government therefor,” approved March 16, 1903,’ the State of Nevada has and had, prior to the passing of the act under which petitioner was sentenced and committed, as aforesaid, delegated the right to regulate the location of houses of prostitution within the corporate limits of the city of Reno, and the right to regulate all such matters as are referred to in the complaint herein to the city of Reno; and for the reason that it appears that the city of Reno, and the city counsel of the said city of Reno, acting under and by authority of the acts of the legislature of the State of Nevada, hereinbefore referred to, have exercised the authority and power so delegated to the said city of Reno by the act of the legislature conferring such power and authority on the city of Reno, above referred to, in adopting City Ordinance No. 95 of the city of Reno, entitled 'An ordinance regulating the conduct and maintenance of houses of ill-fame and places of pros
After a careful review of the law and the authorities bearing upon this constitutional objection interposed by petitioner, we believe, contrary to petitioner’s contention in this respect, that the doctrine is overwhelmingly maintained that the legislative department of our government can never divest the government itself of the inherent right at all times under the police power vested in it under the constitutions, both federal and state, of enacting any legislation which it may deem wise and just for the betterment and preservation of the public health, safety, and morals. (Wallace v. Mayor of Reno, 27 Nev. 71-87, 63 L. R. A. 337, 103 Am. St. Rep. 747; New Orleans Coal Gas Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516; State v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798, affirmed 170 U. S. 78, 18 Sup. Ct. 78, 18 Sup. Ct. 505, 42 L. Ed. 955; Carthage v. Garner, 209 Mo. 688, 108 S. W. 521; People v. Squire, 107 N.Y. 593, 14 N. E. 820, 1 Am. St. Rep. 893; Chicago, M. & St. P. R. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118; State v. Winterrowd (Ind.) 91 N. E. 956, 30 L. R. A. (N. S.) 886; Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. Ed. 989; Fertilizing Co. v. Hyde Park, 97 U. S. 659, 24 L. Ed. 1036; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247; N. O. Gas L. Co. v. Drainage Commission of N. O., 197 U. S. 453, 25 Sup. Ct. 471, 49 L. Ed. 831; Berlin v. Gorham, 34 N. H. 266; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Yarmouth v. N. Yarmouth, 34 Me. 411, 56 Am. Dec. 666; Mobile v. Watson, 116 U. S. 489, 6 Sup. Ct. 398, 29 L. Ed. 620.)
Judge Dillon, in his admirable work on Municipal Cor
The Supreme Court of the United States, speaking through Chief Justice Fuller, in the case of New York and New England Railroad Company v. Bristol, 151 U. S. 556, 567, 14 Sup. Ct. 437, 440 (38 L. Ed. 269), voicing the principle which we contend to be the law, contrary to the document announced by the petitioner, says: "It is likewise thoroughly established in this court that the inhibition of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process, or of the equal protection of the laws, by the states, are not violated by the legitimate exercise of legislative power in securing the public safety, health, and morals. The governmental power of self-protection cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied liability to governmental regulations in particulars essential to the preservation of the community from injury.”
The Supreme Court of the United States again speak
We come now to a consideration of the point as to whether or not the new crimes and punishment act, which goes into effect January 1, 1912, containing the 400-yard limit, supersedes the school law, which contains the 800-yard limit. The new crimes and punishment act, which goes into effect January 1,1912, deals directly with the general police laws and acts which are malum pro-hibitum, and contains a provision which places a limit of 400 yards to schoolhouses within which houses of ill-fame may be conducted. (Revised Laws'of Nevada, 6510.) In 1887 (Stats. 1887, c. 81) the legislature of this state enacted a general law regarding houses of ill-fame, which provided that they shall not be kept within 400 yards of a schoolhouse. It appears that the law under which petitioner was convicted and the new crimes and punishment act were both passed by the legislature on the 15th day of March, 1911. The enrolled bills, when properly authenticated, are deemed conclusive evidence as to the existence of their valid enactment, and their contents, which, when questioned, should always be examined, disclose this to be the fact. (State ex rel. Coffin v. Howell, 26 Nev. 93; State v. Swift, 10 Nev. 176, 21 Am. Rep. 721; State v. Rogers, 10 Nev. 250, 21 Am. Rep. 738; State v. Glenn, 18 Nev. 34; State v. Nye, 23 Nev. 99; State v. Beck, 25 Nev. 68, Am. & Eng. Ency. Law, vol 26, 2d ed. pp. 554, 555, 556; 36 Cyc. 966, 967.)
In consequence, in so far as the legislative intent proper is concerned, to which we must look and be guided in construing statutes, we have that body enacting two measures covering the same subject-matter on the same date, but, providing in the school law that the limit shall be 800
The legislature, in the absence of constitutional restrictions, is free to fix in each act the time it is to take effect, and an examination of our constitution reveals no such prohibition. (Matter of Kenna, 91 Hun, 178, 36 N. Y. Supp. 280; Thomas v. Scott, 32 La. Ann. 689; Price v. Hopkins, 13 Mich. 318; Honeycutt v. St. Louis, 40 Mo. App. 674; Penn. Co. v. State, 142 Ind. 428, 41 N. E. 937; 36 Cyc. 1192, 1193; Am. & Eng. Ency. Law, vol. 36, pp. 563-565.)
Courts, in construing the legislative intent where acts cover the same subject-matter, should so construe the acts, where it is possible, as to allow both to stand, where the language is consistent, plain, and unambiguous, and the legislative intent clear. (Flack v. Rogers, 10 Nev. 319; Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614; 36 Cyc. 1077, 1147.) A careful review of the statute of these two laws in question, dealing with the same subject-matter, we believe compels us to hold the law regarding the limit of 800 yards, as fixed in the school law, as valid from the time of its enactment to January 1, 1912. In consequence of which the conviction of the petitioner was valid. On and after January 1, 1912, however, the limit of 400 yards, fixed in the crimes and punishment act (section 6510, Revised Laws of Nevada), will be the law in this respect until altered or repealed by future legislative enactment. (State v. Lee, 28 Nev. 380.)
As to the policy, wisdom, or expediency of changing the limit within which houses of ill-fame may be located from schoolhouses, it is a matter solely within the power
For the foregoing reasons, the application of the petitioner for the writ is denied, and he is forthwith remanded to the custody of the sheriff of Washoe County until the judgment under which he was convicted is satisfied.
It is so ordered.