Porch v. Patterson

• Decision Date: 30 March 1916
• Docket Number: 2161.
• Citation: 156 P. 439,39 Nev. 251
• Parties: PORCH v. PATTERSON ET AL.
• Court: Nevada Supreme Court

156 P. 439

39 Nev. 251

PORCH v. PATTERSON ET AL.

No. 2161.

Supreme Court of Nevada

March 30, 1916

Appeal from District Court, Elko County; E. J. L. Taber, Judge.

Action by H. H. Porch against J. C. Patterson and others. From a judgment for the defendants, plaintiff appeals. Affirmed on conditions.

Coleman J., dissenting.

E. A Klein, of San Francisco, for appellant.

B. F Curler and F. S. Gedney, both of Elko, for respondents.

McCARRAN J.

This case presents the precise question involved in the case of First National Bank v. Meyers, 150 P. 308. Upon authority of that case the judgment will be affirmed.

We appreciate that the question involved in these two cases is of the greatest importance, not only to the parties to these two suits, but to the bar and the people generally. The learned Junior Justice, who files a dissenting opinion in this case, did not participate in the decision by this court in the Meyers Case, supra. In the latter case there is now pending a petition for a rehearing. We have concluded not to determine the petition for a rehearing in the Meyers Case until after the publication of the opinions filed in this case and opportunity afforded for any member of the bar to be heard amicus curiæ upon the question involved. We are advised that counsel for appellant in the case at bar has left the state, and whether he or other counsel for appellant appears further by way of petition for a rehearing in this case, the judgment now entered will be subject to further order dependent upon the final disposition of the petition for rehearing in the Meyers Case, so that the final disposition of the two cases by this court will be the same.

The two points of view, relative to the proper construction to be placed on our constitutional and statutory provisions concerning homesteads and community property, are presented in the opinion heretofore rendered in the Meyers Case and in the dissenting opinion in this case. The divergent views are worthy of the most careful consideration, not only by the members of the court, but by the bar in general.

Subject to the conditions, heretofore stated, the judgment is affirmed.

NORCROSS, C.J., concurs.

COLEMAN J.

I dissent from the judgment in this case and from the views expressed in the Meyers Case, which is the basis of the judgment in the case at bar, and because of the great importance of the question involved, shall undertake to give the reasons which seem to me to fully justify my action.

While the opinion in the Meyers Case correctly quotes the Homestead Act of 1879 (St. 1879, c. 131), we call attention at the outset to the fact that the act of 1879 was an amendment to section 1 of the Homestead Act of 1864-65. The original act of 1864-65 reads in part as follows:

"Section 1. The homestead, consisting of a quantity of land, together with the dwelling house thereon, and its appurtenances, not exceeding in value the sum of five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any court, for any debt or liability contracted or incurred after November thirteenth, in the year of our Lord one thousand eight hundred and sixty-one. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention, in writing, to claim the same as a homestead. Said declaration shall state that they, or either of them, are married, or if not married, that he or she is the head of a family, that they, or either of them, as the case may be, are at the time of making such declaration, residing with their family or with the persons under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead, which declaration shall be signed by the party making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded, and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants.

Sec. 2. * * * nor shall said homestead property be deemed to be abandoned without a declaration thereof in writing, signed and acknowledged by both the husband and wife, or other head of a family, and recorded in the same office, and in the same manner, as the declaration of claim to the same is required to be recorded. * * *"

Stats. 1864-65, pp. 225, 226.

It will be seen that the amendment of 1879 in no way affects the question involved in the case at bar. The amendatory act of 1879 did not amend section 2, quoted.

In territorial days, before the adoption of our Constitution, there was what may be said to have been a de facto homestead; that is, the filing and recording of a statement claiming certain premises as a homestead was not necessary. Stats. 1861, p. 24; Child v. Singleton, 15 Nev. 463.

It is conceded that were it not for the act of 1897, amending section 6 of the act of 1873 (St. 1873, c. 119), defining the rights of husband and wife, the mortgage in question in the present case would be valid. It is the contention of appellant, as it was in the Meyers Case, that section 30, art. 4, of our Constitution, which provides:

"* * * Laws shall be enacted providing for the recording of such homestead within the county in which the same shall be situated"

--is mandatory, and that, the Legislature having passed an act in pursuance thereof, no subsequent Legislature could repeal or amend the same so as to dispense with the filing of such homestead statement, so long as the constitutional provision quoted is in force. While in considering this case we must discuss several questions pertaining to the rules relative to the construction of statutory and constitutional provisions, it will all be solely for the purpose of an intelligent consideration and determination of the contention of appellant, as just stated.

Is section 30, art. 4, of the Constitution mandatory? Without discussing the question at all, the court in the Meyers Case says: "Pursuant to the directory provision. * * *" With all due respect for the learning and judgment of my Associates, I must take issue with the statement just quoted. That constitutional provisions may be mandatory is clear. A most excellent work which is now being presented to the bench and bar of the country says:

"In the interpretation of Constitutions questions frequently arise as to whether particular sections are mandatory or directory. The courts usually hesitate to declare that a constitutional provision is directory merely in view of the tendency of the Legislature to disregard provisions which are not said to be mandatory. Accordingly it is the general rule to regard constitutional provisions as mandatory, and not to leave it to the will of a legislature to obey or disregard them. This presumption as to mandatory quality is usually followed, unless it is unmistakably manifest that the provisions were intended to be directory merely. The analogous rules distinguishing mandatory and directory statutes are of little value in this connection, and are rarely applied in passing upon the provisions of a constitution. So strong is the inclination in favor of giving obligatory force to the terms of the organic law that it has even been said that neither by the courts nor by any other department of the government may any provision of the Constitution be regarded as merely directory, but that each and every one of its provisions should be treated as imperative and mandatory, without reference to the rules distinguishing between directory and mandatory statutes. Occasionally in the body of a state constitution there is inserted a declaration that its provisions are mandatory and prohibitory, unless by express words declared to be otherwise. The use of the word 'shall' is generally considered as an indication of the mandatory character of the provision." 6 R. C. L. p. 50.

See, also, 8 Cyc. p. 762.

But we need not look further than our own court for authority to sustain the contention, for it was said, in Dunker v. Chedic, 4 Nev. on page 382, "Save that the Legislature must obey the direct commands of the Constitution. * * *" In the opinion of the writer, it is not an open question in this state whether or not the constitutional provision under consideration is mandatory. In an opinion written by Chief Justice Beatty, concurred in by Justices Hawley and Leonard, conceded to have been the very ablest court the state has ever had, it is said:

"But by section 30, art. 4, of the Constitution, the Legislature of the state was enjoined to pass laws providing for the recording of homesteads, and in pursuance of this injunction, the law of 1865 (requiring recording) * * * was passed." Child v. Singleton, 15 New. 463.

This court, consisting of the same able jurists, speaking through the same judge, again says:

"That section is an enlargement and adaptation of section 9 of the Homestead Act of 1861, of which the whole act is simply a re-enactment with some trifling alterations, and the addition of provisions for recording homesteads and declarations of abandonment, made, no doubt, for the purpose of carrying out the apparent purpose of the framers of the Constitution to make registration of the homestead a condition precedent to its exemption, and to the disability of the owner to alienate or incumber it." Estate of Walley, 11 Nev. at page 265.

What plainer language could have been used? The court says that it was the apparent purpose of the framers of the Constitution to make registration of the homestead a condition precedent to its...