14 Nev. 202 | Nev. | 1879
By the Court,
This is a petition for a writ of mandamus to compel the respondent, who is state controller, to draw his warrant in favor of the petitioners for the amount of a duly allowed claim on the fund created by an act of the last legislature, approved March 17, 1879, and entitled “an act' to establish and maintain a state asylum for the indigent poor and maimed of this State.”
The case has been submitted upon demurrer to the petition and upon a stipulation as to the facts which present but one question for decision, and that is as to the constitutionality of the act referred to. If the act is held valid the writ is to issue, if not the proceeding is to be dismissed.
Bespondent does not question the correctness of petitioners’ proposition that “ when an act of the legislature is assailed as unconstitutional the objector assumes the burden of showing either that it is an exercise of authority not legislative in its nature, or that it is inconsistent with some provision of the federal or state constitutions.” He admits also that all presumptions a,re in favor of legislative enactments, and that the act in question must stand unless, as he undertakes to show, it is in plain and palpable conflict with section 3 of article
The nature of the act under which petitioners claim is very clearly indicated by its title. It creates a state asylum for paupers, and repeals the law under which hitherto the respective counties of the state have been compelled to relieve their own poor. The trustees of the state asylum are required to receive and support any person who is certified by the chairman of the board of county commissioners and the county physician to be a bona fide resident of their county, and from the infirmities of age or other sufficient cause, unable to support himself, and without the means of support. (Sec. 7.) This is the substance of the act, and its scope and operation are manifest. It deprives respective counties of the means of providing for their own poor, and transfers all the paupers in the state to one establishment, where they are to be maintained at the charge of the -whole people. The repugnance of such provisions to the policy declared in the section of the constitution above quoted is too obvious to require comment, for the meaning of that section, whether read by itself or in connection with other sections which are supposed by counsel for petitioners to control or modify it, is perfectly clear. “Those inhabitants who, by reason of age, etc., may have claim upon the sympathy and aid of society” is merely an euphemism for “paupers,” and to “provide for” paupers is to feed and clothe and house them. This is what the people in framing our constitution have said that the respective counties shall do, and this is exactly what the legislature has undertaken to say the state shall and the counties shall not do. This being so, there can be no doubt that the act is void. 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
But counsel for petitioner contend that section 1 of Article 13, controls or modifies the construction and operation of section 3. Section 1 reads as follows: “Institutions for the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by law.”
The substance of the argument on this point, if we have correctly apprehended it, isas follows: The passage of the act in question is equivalent to a solemn declaration by the legislature that a state asylum for the poor of the state is a benevolent institution which the public good requires; such declaration by the legislature is conclusive upon the
It is a mistake, however, to assume that the judgment of the legislature, no matter how deliberately or solemnly expressed, that a state asylum for the poor is an institution required by the public good, is conclusive upon any one, if it is true that the people have declared in the constitution that the public good requires paupers to be supported by their respective counties. And since it is clear that such a declaration has been incorporated into the fundamental law, the whole argument, based upon the conclusiveness of the legislative declaration, falls to the ground. In this view the two sections have a perfectly harmonious operation. The state is enjoined by section 1 to foster and support institutions for the public good. By section 3 it is declared that the public good requires paupers to be supported by their respective counties; the case of paupers is specifically excepted from the rule in relation to other classes of unfortunates.
There is also another view in. which the two sections may be perfectly reconciled. Institutions for the insane, deaf and dumb, and blind are required by the public good in a sense wholly different from any in which asylums for paupers can be said to be for the public good. Society looks to no ulterior or contingent advantage from the support of the poor. They are supported for their own good exclusively, and simply because humanity' impels us to relieve their necessities. It is different with respect to the insane, the deaf and dumb, and blind. If an insane man is restored to his reason by treatment in an asylum, there is a positive gain to the community; if he is incurable, there is a negative advantage to the public in keeping him under restraint, and so preventing him from doing mischief. The blind and deaf and dumb may be educated' and trained in institutions specially adapted for the purpose into useful and
It thus appears that there are two distinct views in which sections 1 and 3 of article 13 are perfectly harmonious; but there is no possible interpretation of the latter which will harmonize with this act.
There is still another argument of counsel to be noticed. They say the legislature undoubtedly had the power to repeal the “act relating to the support of the poor,” approved November 29, 1861 (C. L., secs. 3749 to 3759), and they have done so (sec. 11 of this act). It is the same, therefore, as if there never -had been any act prescribing the mode by which the respective counties should provide for their poor, and they ask: “If the act of 1861 had never existed, would not the legislature have had a right under section 1 of article 13 to pass the law of 1879?’ We answer unhesitating that they could not. It would be a strange doctrine that the legislature, by neglecting to do what the constitution positively enjoins, could thereby gain the right to do what it impliedly forbids.
We wish to add in this connnection that in our opinion the act of 18C1 is not repealed. The power of the legislature to repeal a law enacted for the purpose of carrying into effect a provision of the constitution, without at the same time passing some other law to make it effective, is a question that need not be discussed. It is sufficient for the purposes of this case-to say that it cannot be presumed the legislature would have repealed the law of 1861 without
The petition for mandamus is dismissed.