9 Nev. 212 | Nev. | 1874
Lead Opinion
By tbe Court,
This is an application for a peremptory writ of mandamus requiring the treasurer of Esmeralda County to pay certain warrants drawn by its auditor in the years 1865, 1866 and 1867, out of the general fund of the county. At the time of the allowance of the indebtedness evidenced by these warrants it was payable out of the general fund, but payment was not made for want of funds. Subsequent legislation created a “ Redemption Fund ” for Esmeralda County and directed that all moneys should thereafter be paid into it, which theretofore bad been directed to be paid into the general fund. Certain county officers are authorized and required under specified conditions to invite and accept proposals for the surrender of outstanding warrants of indebtedness. Preference is directed to be given to the proposal that offers the largest amount of indebtedness for the least amount of money. Stats. 1867, 76; Stats. 1869, 58. The respondent justifies bis refusal under these laws. The petitioner contends that they are exposed to constitutional objection; first, because they are special, and local laws regulating county business, in violation of Art. 4, sec. 20 of the constitution; and, second, because they impair the obligation of contracts. The payment of the indebtedness of a county is a .part of the business
Hirst. "Whatever definition may be given to the word “special” by lexicographers we must consider that it is employed in reference to statutes in the light of its received judicial construction. At common law statutes were classified as public or general, and private or special. 1. Bl. Com. 86. This was the principal classification of statutes, and the words “public or general” and “private or special ’’were used synonymously. “A general or public act,’-’ says Blackstone, “is an universal rule that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio without the statute being particularly pleaded or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns.” Book 1, 86. Mr. Sedgwick in his work upon statutory and constitutional law (p. 30) thus speaks of the division of statutes: “When we come to consider statutes not as to their origin, but with reference to their subject matter, we find the leading division to be into public or general and private or special. Public or general statutes are in England, those which relate to the kingdom at large. In this country they are those which relate to or bind all within the jurisdiction of the lawmaking power, limited as that power may be in its territorial operation or by constitutional restraints. Private or special statutes relate to certain individuals or particular classes of men.” In Smith’s Commentaries on statutes (sec. 802) Blackstone’s definition is adopted. That of Dwarris is of like effect: ‘ ‘ Public acts relate to the public at large, and pri
The question arose in New Hampshire whether a statute of that state regulating the mode of putting timber into the Connecticut river was a general law. The objection to the statute was that it did not embrace all rivers, but was confined to the Connecticut river. The court held that since the law extended to all persons it was a general law in relation to a particular place. Scott v. Willson, 3 N. H. 321. In Heridia v. Ayres the supreme judicial court of Massachusetts decided that an act regulating the pilotage of Boston harbor was a public act. The views of the court upon this point were thus expressed by Chief Justice Shaw: “The last objection is that the statute is a private act and ought to have been, recited in the declaration. Without going minutely into this subject, which sometimes involves distinctions of much nicety and difficulty, there is one consideration which renders it decisive that this is a public act, which is, that the first section in terms imposes a penalty upon every person who .shall violate its provisions. It is therefore binding upon every citizen of the commonwealth,
The constitution of Indiana provides that special laws shall not be passed “ for the punishment of crimes and misdemeanors,” etc., and “regulating the practice in courts of justice;” and by statute the courts of common pleas are invested with original jurisdiction of all misdemeanors. An act was £>assed regulating the liquor traffic, declaring any infraction of the law a misdemeanor, and conferring concurrent original jurisdiction upon the circuit courts of cases prosecuted for its violation. It was objected that the act was special and, therefore, unconstitutional, because it conferred jurisdiction upon both courts to try offenses under this act only, without giving the like jurisdiction as to all other misdemeanors. Said the court: “ What is a special act? It is such as at common law the courts would not notice, unless it were pleaded and proved like any other fact. * * * * * The distinction between general and Special statutes was well known to the common law, though sometimes a question of great nicety, and it is in accordance with a well established principle to assume that the constitution in using the terms intended them to be understood in the sense which was at that time recognized by the courts. Now we apprehend that it will be impossible anywhere, to find
The question arose in Iowa whether a law was special which provided that “every railroad company shall be liable for all damages sustained by any person, including the employees of the company, in consequence of any neglect of the agents, or by any mismanagement of the engineer or other employees of the corporation, to any person sustaining such damage.” It was contended that the law was special because it did not impose the same liability upon stage companies, the proprietors of steamboats and other common carriers; to which the court replied: “These laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relation and circumstances provided for, is affected by the law.” McAnnich v. M. & M. Co., 20 Iowa, 343. In the case of the U. S. Express Co. v. Elly son, 28 Iowa, 370, an act providing for the assessment of the property of express and telegraph companies in a particular manner was held to be a general law. Again, an act of the legislature establishing a court at the town of Mc-Gregor was adjudged a local but not a special act. Town of McGregor v. Baylies, 19 Iowa, 43. Under the Maryland constitution, prohibiting local and special legislation in certain cases, a law relating to roads in Baltimore County was declared to be a local but not a special law. The court considered that the special laws contemplated by the constitu
It is objected that the redemption acts are special, since they provide for the indebtedness of one county only; but under the decided cases it appears that a law operative alike upon all persons similarly situated is a general law. The recent case in 19th Iowa and that in 29th Md. supra, decided under similar constitutional clauses, show that a law to be general need not be applicable to all counties in the state. The statutes before us are applicable to all persons sustaining the relation of creditors to Esmeralda County, and thus meet the requirements of general, as contradistinguished from special laws. And see Clarke v. Irwin, 5 Nev. 111.
Second. In expounding a constitutional provision such construction should be employed as will prevent any clause, sentence or word from being superfluous, void or insignificant. Smith’s Com. Sec. 276. Applying this rule to a similar constitutional clause,, the court of appeals of New York said: “We judge that they (the constitution framers) employed the word private as applicable to persons only ; and the word local as applicable to territory only; but both as signifying a narrowing or restricting of purpose. ” 43 N. Y. 18. This language is as apposite to the words “ special and local ” in the Nevada constitution, as it is to the words “ private and local ” in the New York constitution. A law may be special and not local, or it may be local and not special. The adoption of this view is necessary to give full meaning and significance to the words special and local; otherwise the terms become convertible, and the word local is unmeaning and useless in the constitution. The classification of statutes as local is of late origin and not mentioned by text writers, who designated laws restricted to particular localities as private or special. The subject, however, has been frequently discussed by the courts of New York under the following constitutional clause: ‘ ‘ No private or local
The laws under consideration are not restricted by geographical lines; they have force without as well as within the boundaries of Esmeralda County. They provide as much for the relief of the creditors of the county as for the county itself; and are as applicable to the creditor who resides elsewhere in the State, or without it, as they are to the creditor
Third. The remaining objection is that the redemption acts impair the obligation of Contracts. The petitioner has not and never had any security for the performance of the county’s contract, but the good faith of the State. The legislature has permitted suits to be brought against counties, but has not provided for the enforcement of executions. The only effect of a judgment is to convert a disputed into a liquidated demand, and the creditor must still rely upon the revenue for payment. It is within the legitimate power of the legislature to raise revenue by taxation and to designate the purpose to which the funds shall be applied. In the exercise of this authority the legislature has directed that moneys which would otherwise have been paid into the general fund shall go into the redemption fund, to be from thence disbursed in a specified manner. The revenue is controlled by the legislature. It cannot be coerced to enact revenue laws, and has power to repeal laws for its collection and thus defeat the payment of the creditors of the State or counties. The good faith of the State is the only reliance of
The application for a mandamus is denied.
Dissenting Opinion
dissenting:
To my mind the acts, creating a “ Eedemption Fund ” for Esmeralda County are clearly within the prohibitions of sec. 20, art. IV.", of the constitution, that “the legislature shall not pass * * special laws * * regulating county * * business.” In examining the authorities, we find that public or general acts are those “whichrelate to or concern the interest of the public at large, or relate to a general genus in relation to things,” while private or special acts are those which concern only a particular species, thing, or person, such as “ acts relating to any particular place, or to divers particular towns, or to one or more particular counties.” This is the general definition found in all authorities both in England and in the United States. Holland's Case, Coke’s Rep. Vol. 2, Part IV. 76, p. 473; Smith’s Comm. Secs. 795, 796; Sedgwick on Const. Law, p. 32; Potter’s Dwarris on Stat. p. 53; The People v. Supervisors of Chautauqua, 43 N. Y. 17; State of Mo. ex rel. Dome v. Wilcox, 45 Mo. 465. See also reference to English cases in 9 Petersdorff’s Ab. 191, note.
A distinction to this rule is sometimes made in certain cases where the laws in their operation are limited or local, but they are treated as public, because, although limited to a particular locality, yet ‘ ‘ they affect the public at large when acting within that locality in reference to matters within the purview of the act.” Smith’s Comm. Sec. 797. Acting upon this principle, courts have usually declared as general, all acts relating to highways or navigable waters,
The laws under consideration are not, in my judgment, of like character. They are limited in their application to the County of Esmeralda and its individual creditors, and do not affect strangers or the public at large. They are special within the meaning- of that word as used in the constitution, because the subject matter relates to one county and its individual creditors; to a portion of the people of the State and to their property, and do not either in their subject, operation or immediate and necessary results, affect the people of the State or their property in general. Nor do I think these acts come within that other class of cases that. have been held to be general, because of uniform operation throughout the State and affecting all persons similarly situated alike. Under this distinction, laws which applied to all railroads without mentioning other corporations, have been upheld as general, because applying to all railroads in the State. But the laws regulating the indebtedness of Esmeralda County are not made applicable to other counties similarly situated. Nor to the creditors of other counties. Within the principle of this latter class of cases, the legis-’ lature might pass an act dividing the counties of the State into one or more classes, and a law would be general which conferred upon counties of one class certain rights, powers and privileges, not conferred upon counties of another class. But a law would be special which conferred upon one county special powers and privileges not conferred upon all counties
It will be observed that I do not differ so much with the general principles announced in the opinion of the Court as in the application of the law. Here- it is that our paths diverge. I think the laws are special, because they are limited in their application, by the subject matter, to a particular county, and to particular individuals. The fact that these laws affect all the creditors of Esmeralda County may take from them their local character, but -does not, in my opinion, avoid their being special. There is no discretion in regard to the passage of such laws. If special or local, they are inhibited by the strict letter of the constitution; and entertaining the opinion that the laws are special, I am compelled to dissent from the judgment of the Court.
