In re Arascada for a Writ of Habeas Corpus

189 P. 619 | Nev. | 1920

By the Court,

Coleman, C. J.:

Petitioner has applied for á writ of habeas corpus, to be discharged from the custody of the sheriff of Humboldt County under a commitment issued out of the district court upon a conviction and sentence to the county jail for violating the prohibition statute (Stats. 1919, p. 1).

By the act in question it is provided that a person shall be deemed guilty of a misdemeanor for a first offense. It is conceded by the state that the offense charged against the petitioner, and under which he was convicted, is his first offense.

Three grounds are urged as reasons for petitioner’s discharge: First, that the district court has no jurisdiction over misdemeanors generally; second, that the-act in question is in violation of the fourteenth amendment to the constitution of the United States; and, third, that so much of section 28 of the act as purports to confer concurrent jurisdiction upon justices of the peace and the district court is void.

As to the first two grounds stated, the questions raised have been this day decided adversely to petitioner's contention (In Re McGee, 44 Nev. 23), and we do not deem it necessary to restate our views as to them.

1. As to the third ground urged in behalf of petitioner, it is said that the general spirit of the act is that justice courts shall have jurisdiction over first offenses, and that the portion of section 28 which purports to confer concurrent jurisdiction upon justice and district courts is in violation of section 8, article 6, of our constitution, and null and void, and hence the proceeding in the district court wherein petitioner was convicted is a nullity. Section 3 of the act in question, after providing that first offenders shall be deemed guilty of a misdemeanor, provides that persons convicted of such crime may.be fined .not less than $100 nor more than $1,000, and imprisoned in jail not less than two nor more than twelve months. While the first offense is designated as a misdemeanor by the statute, the justice court does not acquire jurisdiction under the section mentioned, because the penalty may be in excess of that provided in the general statute (Rev. Laws, 4851), as pointed out in the McGee case, supra, and hence the district court has jurisdiction under that section. The only other section of the act which purports to confer jurisdiction upon the justice court of first offenders is. the portion of section 28 which is assailed as being unconstitutional, null, and void.

2. Section 8 of article 6 of the constitution provides that the legislature many confer upon the justice courts and the district courts concurrent jurisdiction over certain enumerated cases, but a misdemeanor is not one of them, and it is urged that the enumeration of certain cases over which the legislature may confer concurrent jurisdiction upon the courts mentioned is an exclusion of all cases not mentioned, in harmony with the maxim, “Expressio unius est exclusio altefius.” This is a well-recognized rule of statutory construction and one based upon the very soundest of reasoning; for it is fair to assume that, when the legislature enumerates certain instances in which an act or thing may be done, or when certain privileges may be enjoyed, it names all that it contemplates; otherwise what- is the necessity of specifying any? The rule invoked is'so thoroughly recognized, not only by the courts generally, but by our own court, that it would be puerile to dwell upon the question presented, further than to quote from the decisions of our own court. The identical question before us was determined by this court in Lake v. Lake, 17 Nev. 230, 30 Pac. 880, when it said:

“It is settled that affirmative words in a constitution, that courts shall have the jurisdiction stated, naturally include a negative that they shall have no other.”

The language of Beatty, C. J., in State v. Hallock, 14 Nev. 202, 33 Am. Rep. 559, might have been used with propriety had the question now before us been under consideration by the court. He said:

“It is true that the constitution does not expressly inhibit the power which the legislature has assumed to exercise, but an express inhibition is not necessary. The affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power in the legislature to establish a different policy. ‘Every positive direction contains an implication against anything contrary to it which would frustrate or disappoint the purpose of that provision. The frame of the government, the grant of legislative power itself, the organization of the executive authority, the erection of the principal courts of justice, create implied limitations upon the lawmaking authority as strong as though a negative was expressed in each instance.’ People v. Draper, 15 N. Y. 544. The presumption is always that positive provisions of a constitution are mandatory and not merely directory (Cooley’s Const. Lim. 78, 79), and there is nothing to overthrow this presumption with respect to the provisions under discussion.”

In State v. Arrington, 18 Nev. 412, 4 Pac. 735, the court said:

“But, in seeking for limitations and restrictions, we must not confine ourselves to express prohibitions. Negative words are not indispensable in the creation of limitations to legislative power, and, if the constitution prescribes one method of filling an office, the legislature cannot adopt another.”

To the same effect: In Re Bailey’s Estate, 31 Nev. 377, 103 Pac. 232, Ann. Cas. 1912a, 743; Leake v. Blasdel, 6 Nev. 40; 25 R. C. L. 981; 26 Cyc. 1122.

3. Applying this rule of construction to the portion of section 28 in question, it is very clear that the lawmaking power of the state cannot confer concurrent jurisdiction upon the justice courts and the district courts over misdemeanors, and that so much of the statute as purports to do so is null and void, as contended.

4, 5. But the declaring of the portion of the act in question void does not entitle the petitioner to the writ sought, because the adjudging of a certain portion of a statute to be unconstitutional does not affect any other portion, save and except so much thereof as is dependent upon that portion which is declared null and void, and the effect of our holding is simply to abrogate that portion of the statute whereby it was sought to give offenders the benefit of a trial before the tribunal which is closest to the people, but in no way affects section 3 of the statute, which primarily confers j urisdiction upon the district court, nor sections 9 and 10 thereof, which provide for a preliminary hearing before a justice of the peace, such as the petitioner had.

Holding the views expressed, it follows that the petition must be dismissed, and petitioner remanded to the custody of the sheriff.

It is so ordered.