Caine v. Robbins

• Decision Date: 30 November 1942
• Docket Number: 3381.
• Citation: 131 P.2d 516,61 Nev. 416
• Parties: CAINE, County Clerk, v. ROBBINS.
• Court: Nevada Supreme Court

131 P.2d 516

61 Nev. 416

CAINE, County Clerk, v. ROBBINS.

No. 3381.

Supreme Court of Nevada

November 30, 1942

Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.

Suit by John E. Robbins, individually and as a resident, citizen taxpayer, and elector of the State of Nevada and of the County of Elko in said state, and on behalf of all persons similarly situated, against Mae E. Caine, as County Clerk of the County of Elko, State of Nevada, to enjoin the defendant from proceeding with any of the statutory steps looking toward the submission to the electors of Elko County at the next general election to be held on November 3, 1942, a certain initiative petition measure. From a judgment granting the injunction, the defendant appeals.

Affirmed.

C. B Tapscott, Dist. Atty., of Elko, Gray Mashburn, Atty. Gen and W. T. Mathews and Alan Bible, Deputy Attys. Gen., for appellant.

Milton B. Badt and John E. Robbins, both of Elko, for respondent.

DUCKER Chief Justice.

This suit was instituted by respondent on September 17, 1942 to enjoin the county clerk of Elko County, Nevada, from proceeding with any of the statutory steps looking toward the submission to the electors of said Elko County at the next general election to be held on November 3, 1942, a certain initiative petition measure entitled: "An Act relating to and providing for the protection, propogation restoration, domestication, introduction, purchase, and disposition of wild animals, wild birds and fish; creating certain offices, providing the method of selecting the officers therefor, defining the powers and duties of certain officers and other persons; defining certain terms; providing for the licensing of and regulating of hunting, trapping, game farming and game fishing; providing for a license for fur dealers; authorizing the establishment, control and regulation of private fish hatcheries, state recreation grounds, sanctuaries and refuges, and the closing, opening and shortening of hunting and fishing seasons; regulating the transportation and possession of wild animals, wild birds and game fish; providing for the acquisition of property for certain purposes; providing for instruction in the game laws of this state in the public schools of this state; establishing certain funds and regulating expenditures therefrom, providing penalties for violation thereof and other matters properly relating thereto."

The case is here on appeal by said clerk from a judgment and decision perpetually enjoining her from proceeding in any manner toward submitting the proposed measure to the electorate of said Elko County at the next general election or any subsequent election to be voted upon as to its adoption or rejection. The parties stipulated in the court below that the decision filed was the final judgment.

It appears from the allegations of the complaint that the initiative petition was filed with the secretary of state and by him presented to the legislature at its 1941 session but was not enacted by the legislature or passed upon by either the assembly or senate, and was returned by the legislature to the secretary of state, who caused the same to be certified to each county clerk of the state, including defendant, appellant here. In this connection it is alleged that said county clerks would be required to post three copies thereof in each of such counties, and cause the same to be published there times in each of such counties under penalty of fine and imprisonment, if any of such county clerks should fail to do so; and by reason thereof each county clerk would be required to provide printed ballots and to print therein the question as to whether the purported initiative petition should be voted for or against, with a brief statement of the purport of such question in plain ordinary language which might be readily understood by the ordinary lay person. On information and belief it is alleged that the cost of such posting, printing and publication within the County of Elko would be in excess of $2,000.

It is alleged, inter alia, that the said initiative petition is null and void and of no effect and is inoperative for any purpose whatsoever in that it contains no enacting clause as required by section 3 of Article XIX of the state constitution, and as required by section 2579, N.C.L.1929. It is further alleged that plaintiff, respondent here, and all persons similarly situated will suffer great and irreparable damage and injury unless said clerk is enjoined from proceeding with said steps and that plaintiff has no plain or speedy or adequate remedy at law, and no remedy save to invoke the equitable power of the court.

Appellant demurred to the complaint on the grounds (1) that it did not state facts sufficient to constitute a cause of action, and (2) that the court had no jurisdiction of the subject of the action. An answer was also filed. The court, in its judgment and decision, overruled the demurrer on both grounds. On the trial of the case it was stipulated that the original initiative petition on Question No. 2 to be voted on at the general election on November 3, 1942, wherein it is requested that a proposed law thereto attached and providing for centralized fish and game control in the state of Nevada, be adopted, shows on its face and in the contents thereof, that no enacting clause of any form or wording precedes, or anywhere appears in said petition, and that the first paragraph thereof reads as follows: "We, the undersigned qualified electors of the State of Nevada, by virtue of and in accordance with Section 3 of Article 19 of the Constitution of the State of Nevada, hereby propose by initiative petition the following measure, law or act; and we petition that it be by you transmitted to the Legislature at its next regular session, and if it be not enacted by said Legislature and approved by the Governor, that you submit it to the qualified electors for approval or rejection at the next ensuing general election."

On the hearing of the appeal in this court it was stipulated by attorneys for the parties that when the court had reached its conclusion, an order could be made in advance of a written opinion. Accordingly, on September 28, 1942, the court made and entered the following order: "It is ordered that the judgment of the court appealed from be and the same is hereby affirmed. Our reasons for the order follow."

The initiative measure proposed by the petition would, if enacted by the vote of the electors, be clearly unconstitutional for lack of enacting clause required by the state constitution in initiative proceedings. The negative of this proposition was very reluctantly and consequently feebly expoused by counsel for appellant, their principal objection to the judgment being levelled at the jurisdiction of the court. Section 3 of Article XIX of the state constitution provides: "The enacting clause of all bills proposed by the initiative shall be: 'The people of the State of Nevada do enact as follows."'

Pursuant to this constitutional mandate the legislature of 1921 enacted it in the same language. Section 2579, N.C.L.

It is quite generally held that a provision in a state constitution requiring an enacting clause in a statute is mandatory and that the omission thereof renders the statute void. Commonwealth v. Illinois Central R. Co., 160 Ky. 745, 170 S.W. 171, L.R.A.1915B, 1060, Ann.Cas.1916A, 515; see the cases cited in support of this view in note on pages 520, 521, of latter citation 59 C.J. sec. 149, p. 597 and additional cases in note 55. The reasons for this generally accepted rule are pointedly stated by Judge Cooley. He says: "It is a necessary attribute of sovereignty that the expressed will of the sovereign is law; and while we may question and cross-question the words employed, to make certain of the real meaning, and may hesitate and doubt concerning it, yet, when the intent is made out, it must govern, and it is idle to talk of forms that should have surrounded the expression, but do not. But when the legislative power of a state is to be exercised by a department composed of two branches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the lawmakers, and sometimes forms become of the last importance. For in such cases not only is it important that the will of the lawmakers be clearly expressed, but it is also essential that it be expressed in due form of law; since nothing becomes law simply and solely because men who possess the legislative power will that it shall be, unless they express their determination to that effect, in the mode pointed out by the instrument which invests them with the power, and under all the forms which that instrument has rendered essential." Cooley's Constitutional Limitations, 6th Ed., 155.

A declaration of the enacting authority in laws is a usage and custom of great antiquity and is required in some form or other in the constitutions of most of the states, and the compulsory observance of it is founded in sound reason. Sjoberg v. Security Savings & Loan Association, 73 Minn. 203, 75 N.W. 1116, 72 Am.St.Rep. 616.

But the question is not res integra in this jurisdiction. In State of Nevada v....