10 Nev. 250 | Nev. | 1875
By the Court,
This is an application for a writ of mandamus to compel the respondent, the county recorder of Elko County, to transcribe and deliver to relator, the county recorder of Eureka County, certain records pursuant to the provisions
Respondent claims that said act is unconstitutional and void. First, because it embraces more than one subject and because the subject of said act is not expressed in the title, as required by Section 17, Article IY, of the Constitution, which provides that: “Eachlaw enacted by the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title.” Second, because said act has no enacting clause as required by Section 23, Article IV, of the Constitution, which provides that: “The enacting clause of every law shall be as-follows: ‘The People of the State of Nevada, represented in senate and assembly, do enact as follows,’ and no law shall be enacted except by bill.”
The enacting clause of the act in question leaves out the words “senate and” and reads: “The People of the State of Nevada, represented in assembly; do enact as follows.”
The first question to be determined is whether said provisions are directory or mandatory in their character.
In California, Ohio, Maryland and Mississippi, similar provisions of the Constitution have been held to be directory only. (Washington v. Page, 4 Cal. 388; Pierpont v. Crouch, 10 Cal. 315; Pim v. Nicholson, 6 Ohio State, 177; McPherson v. Leonard, 29 Md. 386; Swann v. Buck, 40 Miss. 292.) But in Alabama, Georgia, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Jersey, New York, Texas and Wisconsin, similar provisions have been recognized and enforced as mandatory by the courts, and in our judgment the whole current and weight of authority, as well as reason, is in accord with this view. The argument urged by relator, that we should follow the construction given by the Supreme Court of California prior to the adoption of our Constitution, has no force in its application to this case, from the fact that it cannot be said that we borrowed these provisions exclusively from the Constitution of the State of California, when similar provisions are to be found in the constitutions of other States, where
Judge Cooley, in his work on Constitutional Limitations, after mentioning the fact that many of the provisions of the statutes of the several States have been held to be directory, says: “But courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of a constitution. Constitutions do not usually undertake to prescribe mere rules of proceeding, except when such rules are looked upon as essential to the thing to be done; and they must then be regarded in the light of limitations upon the power to be exercised. It is the province of an instrument of this solemn and permanent character to establish those fundamental maxims, and fix those unvarying rules, by which all departments of the government must at all times shape their conduct; and if it descends to prescribing mere rules of order in unessential matters, it is lowering the proper dignity of such an instrument and usurping the proper province of ordinary legislation. We are not, therefore, to expect to find in a constitution provisions which the people in adopting it have not regarded as of high importance and worthy to be embraced in an instrument which, for a time at least, is to control alike the government and the governed, and to form a standard by which is to be measured the power which can be exercised as well by the delegate as by the sovereign people themselves. If directions are given respecting times or modes of proceeding in which a power should be exercised, there is at least a strong presumption that the people designed it should be exercised in that time and mode only; and we impute to the people a want of due appreciation of the purpose and proper province of such an instrument when we infer that such directions are given to any other end, especially when, as has been already said, it is but fair to presume that the people in their constitution have expressed themselves in careful and meas
The following authorities fully sustain the position, which we believe to be correct, that these and similar provisions of the Constitution are mandatory: Tuskaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsley, 43 Ala. 224; Prothro v. Orr, 12 Geo. 86; Wolcott v. Wigton, 7 Ind. 44; Rice v. The State, 7 Ind. 332; The Indiana Central Railway Co. v. Potts, 7 Ind. 682; Walker v. Caldwell, 4 La. Ann. 297; The Board of Supervisors of Ramsey Co. v. Heenan, 2 Minn. 331; State v. Miller, 45 Mo. 496; The People v. Lawrence, 36 Barb. 178; The People ex rel. McConvill v. Hills, 35 N. Y. 449; Cannon v. Hemphill et al., 7 Tex. 185; Antonio v. Gould, 34 Tex. 49; Durkee v. City of Janesville, 26 Wis. 700; Seat of Government determined, 1 Wash. Ter. 136.
In Tuskaloosa Bridge Co. v. Olmstead, the court had under consideration the constitutional provision of Alabama that “No law * * shall be * * amended by reference only to its title, * * but the law * * amended shall itself be set forth at full length.” It was there argued by eminent counsel that the provision was only directory, and was intended only as mere rules for the legislature, and that courts ought to “deviate a little from the received sense and literal meaning of the words, 'and interpret the instrument in accordance with what may appear to have been its reason and spirit.” Such is substantially the argument advanced by relator’s counsel here, and the decision is for that reason specially applicable to this case. Walker, C. J., in delivering the opinion of the court, said: “We have given careful attention to the argument that the clause of the Constitution under consideration is a mere rule of legis
These provisions being mandatory in their Character, it becomes our duty to consider whether they have been complied with.
Has this act an enacting clause, as required by the Constitution ?
Cushing, in his work on Law and Practice of Legislative Assemblies (819, Sec. 2102), says: “The Constitutions of all the States in the Union, except those of Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, Louisiana, Kentucky, and Arkansas, contain a statement, under the name of the enacting style, of the words with which every act of legislation in those States, respectively, must be introduced, sometimes with and sometimes without the use of negative words, or other equivalent language. The Constitutions of the States above named, and of the United States, contain no statement of an enacting clause. Under those Constitutions, therefore, an enacting clause, though equally requisite to the validity of a law, must depend mainly upon custom. The foregoing considerations seem to call for three remarks:
“I. Where enacting words are prescribed, nothing can be a law which is not introduced by those very words, even though others which are equivalent are at the same time used.
“II. Where the enacting words are not prescribed by a*257 constitutional provision, the enacting authority must, notwithstanding, be stated; and any words which do this to a common understanding are doubtless sufficient; or the words may be prescribed by rule. In this respect much must depend upon usage.
“III. Whether, where enacting words are prescribed in a resolve or joint resolution, can such resolution have the force of law without the use of those very words, is a question which depends upon each individual Constitution, and which we are not called upon at present to settle.”
The question asked falls under the first subdivision discussed by Cushing. ■
In McPherson v. Leonard, supra, the majority of the justices of the court held that the words “by the General Assembly of Maryland,” which were omitted from the enacting clause, were not of the essence and substance of a law, and that their use was directory only, and upon this ground refused to declare the act void. The statement that the words omitted are not of the essence and substance of a law is clearly erroneous, and the opinion is fallacious. How can it be said that these words are not of the' essence and substance of a law when the Constitution declares that the enacting clause of every law shall contain them? Two justices dissented from the opinion of the court and held the provision of the Constitution to be mandatory. Justice Stewart, in his dissenting opinion, said, in alluding to the Constitution: “That instrument having expressly declared, in the twenty-ninth section of the third article, that ‘The style of all laws of the State shall be, “Be it enacted by the general assembly of Maryland,”’ it is incumbent on the law-making department to pursue that mode. If a positive requirement of this character * * * can be disregarded, so may others of a different character, and where will the limit be affixed or practical discrimination made as to what parts of the organic law of the State are to be held as advisory, directory, or mandatory? Disregard of the requirements of the Constitution, although, perchance, in matters of mere form and style, in any part, in law, es-
In Washington Territory, an act was passed without an enacting clause, to locate the seat of government, and although the “organic act” passed by Congress creating the Territory did not prescribe or require any enacting clause to bo used in the passage of any law, the Supreme Court held the act to be unconstitutional and void for the want of an enacting clause. After quoting from Cushing, the court say: “The staring fact’that the constitutions of so many States, made and perfected by the wisdom of their greatest legal lights, contain a statement of an enacting clause in which the power of the enacting authority is incorporated, is, to our minds, a strong and powerful argument of its necessity. It is fortified and strengthened by the further
Wyche, J., dissented from the opinion of the court, and in his dissenting opinion said: “The constitutions of nearly all, if not every State, prescribe some form for an enacting style, that is to say, some description of the lawmaking power. In such States it is conceded the prescribed forms must be followed, perhaps literally, at all events substantially.” He refers to Washington v. Page (4 Cal. 388), where a provision of the Constitution was declared to be directory, and says it “is unsatisfactory and is not cited with approbation.” Ho bases his dissent upon the ground that the “organic act” did not require an enacting clause, and that if the legislature was compelled to use any “ enacting style from the force of custom, that custom must be unbroken,” and shows that no such custom existed in the Territory. In Swann v. Buck, supra, the court discussed questions which belong to the third subdivision mentioned by Cushing. As an authority it has no application to the facts of this case, except in so far as the court held the law to be directory, a position which, in our judgment, for reasons we have already stated, is -wholly untenable. The Constitution of Mississippi provides that the style of laws shall be: “Beit enacted by the Legislature of the State of Mississippi.” The legislature passed a joint resolution in the following words: “Resolved by the Legislature of the State of Mississippi.” The court, after admitting that it is necessary that every law should show on its face the authority by which it is adopted, held that the word “resolved” was as potent to declare the legislative will as the word “enacted,” and further sustained the validity of the law upon the ground that as a joint resolution it had the force and effect of law.
In this case it is not contended that any equivalent words for those missing have been used, and there is no pretense
It was suggested by counsel for relator in his oral argument that when the bill was presented to the legislature, the enacting clause contained the identical words required by the Constitution, and that, after its passage, through the mistake of the enrolling clerk, the words “senate and” were omitted. We decided in The State ex rel. George v. Swift, ante, that we could not look beyond the enrolled bill in the office of the secretary of state in order to ascertain the terms of a law. The correctness of that decision has not been questioned, and under the rules therein established we
The conclusion here arrived at renders it unnecessary to decide whether the act in question is subject to the further objections, urged by respondent’s counsel, that the subject of the law is not expressed in the title, and upon that point we express no opinion.
The writ of mandamus is denied.