Shamberger v. Ferrari

• Decision Date: 06 August 1957
• Docket Number: No. 4048,4048
• Citation: Shamberger v. Ferrari, 73 Nev. 201, 314 P.2d 384 (Nev. 1957)
• Parties: Hugh A. SHAMBERGER, Director of the State Department of Conservation and Natural Resources, Petitioner, v. Louis D. FERRARI, Respondent.
• Court: Nevada Supreme Court

Page 384

314 P.2d 384

73 Nev. 201

Hugh A. SHAMBERGER, Director of the State Department of Conservation and Natural Resources, Petitioner, v.Louis D. FERRARI, Respondent.

No. 4048.

Supreme Court of Nevada.

Aug. 6, 1957.

Harvey Dickerson, Atty. Gen., William N. Dunseath, Chief Deputy Atty. Gen., for petitioner.

John E. Gabrielli, Reno, for respondent.

BADT, Chief Justice.

At the general election of November, 1954 the voters ratified a constitutional amendment initiated in 1951¹ which removed the office of surveyor general from the 'constitutional' officers required to be elected through statutory provisions to be enacted.At the same election they elected respondent as surveyor general for a four-year term ending December 31, 1958.The legislature of 1957 abolished the office of surveyor general and directed the surveyor general to turn over his files, etc. to the newly created State Department of Conservation and Natural Resources.The act was to become effective July 1, 1957.Respondent, contending that the statute was unconstitutional, refused to comply and this proceeding in mandamus was brought to compel such compliance.We have concluded that the statute is in all respects valid and that the writ should issue.

1.Respondent's chief contention is that on the date of his election in November, 1954, subsisting constitutional and statutory provisions provided for a term expiring December 31, 1958, and that no subsequent change of any constitutional or statutory provisions could alter or affect that situation.For the purposes of this opinion we deem it unnecessary to determine whether the constitutional change became effective at the date of the election under the provision quoted in footnote 1 or upon the canvassing of the vote by the justices of the supreme court on the first Wednesday of December following, N.R.S. 296.420 that is, whether it became effective coincidently with respondent's election or prior or subsequently thereto.

At the time of the election there were in effect Art. V, Sec. 19 of the constitution providing that '[a] secretary of state, a treasurer, a controller, a surveyor-general, and an attorney general, shall be elected at the same time and places, and in the same manner as the governor.The term of office of each shall be the same as is prescribed for the governor. * * *'; also Art. V, Sec. 22, again naming these officers and providing that they'shall perform such other duties as may be prescribed by law.'; also Art. V, Sec. 2, fixing the term of governor for four years; also Art. XV, Sec. 9, reading as follows: 'The Legislature may, at any time, provide by law for increasing or diminishing the salaries or compensation of any of the Officers, whose salaries or compensation is fixed in this Constitution; provided, no such change of Salary or compensation shall apply to any Officer during the term for which he may have been elected.'; also Art. IV, Sec. 32, reading in part as follows: 'The Legislature shall have power to increase, diminish, consolidate or abolish the following county officers: County Clerks, County Recorders, Auditors, Sheriffs, District Attorneys County Surveyors, Public Administrators and Superintendents of Schools.The Legislature shall provide for their election by the people, and fix by law their duties and compensation. * * *'; also N.R.S. 281.010, providing: 'The following officers shall be elected: * * * (m) A surveyor general'; also N.R.S. 229.010, defining qualifications for the office of surveyor general; also N.R.S. 229.020, providing that the surveyor general shall be elected for a four-year term and shall hold until his successor shall qualify.

Under these constitutional and statutory provisions, existing at the time respondent was elected, it is argued by respondent that he was elected as a constitutional officer and not as a statutory officer; that the legislature may not change the character of that office from a constitutional to a statutory office during the term for which he was elected; that no change of salary or compensation could apply to him during such term; and that the attempt of the legislature in 1957 to abolish the office, a constitutional office at the time of respondent's election to it, could not be validly effective during his term.In support of this he relies largely upon language used in the dissenting opinion in State ex rel. Miller v. Lani, 55 Nev. 123, 27 P.2d 537.That case, however, had to do with Art. XV, Sec. 9, above referred to, prohibiting a change of salry of an officer during his term, ² where such salary was fixed by the constitution.We are here concerned with the abolishment of the office, a distinction clearly recognized even in the dissenting opinion.³Respondent also relies upon Moore v. Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401.That case, however, clearly recites the principle that while the legislature may not abolish constitutional offices, it is free to abolish offices which are the creatures of legislatureenactment.The case held that the reduction of a constable's salary from $1,800 a year to $5 a year was an attempt to abolish the particular constableship of one county, contrary to the provisions of Art. IV, Sec. 25 of the constitution guaranteeing a uniform system of township government throughout the state.Respondent also relies upon State ex rel. Josephs v. Douglass, 33 Nev. 82, 110 P. 177, which had to do with an amendment of Sec. 32, Art. IV of the constitution.The main holding of that case was that, although a constitutional amendment deleted that portion of the section which required the election of a clerk of the supreme court, it did not deprive the office of its constitutional status because the constitution still was left with provisions having to do with important functions of that office, including the provision (Art. XV, Sec. 8) requiring the opinions of this court to be filed with the clerk.No such situation exists in the instant case.

State ex rel. Josephs v. Douglass, supra, State ex rel. Howell v. LaGrave, 23 Nev. 373, 48 P. 193, 674, King v. Board of Regents, 65 Nev. 533, 200 P.2d 221, and other decisions of this and other courts are cited by respondent in support of the general proposition that the legislature may not abolish a constitutional office.This is freely conceded by petitioner and the contention, is, of course, correct.The present situation is, however, entirely different.In the first place the constitutional amendment initiated in 1951 and ratified by the electors in 1954 eliminated all constitutional references, wherever appearing, to the office of surveyor general.The amendment was in effect in 1957, at which time the legislature had before it its own prior legislative acts requiring the election of the surveyor general and other officers, defining their qualifications and fixing their salaries and terms of office.At that time the rule against statutory abolishment of a constitutional office had no bearing, significance or influence with reference to the legislative will concerning the office of surveyor general.It thereupon enacted, and the governor approved, Chapter 364, 1957 Statutes, entitled 'An Act to amend Title 18 of N.R.S. relating to the state executive department by creating a new chapter establishing the state department of conservation and natural resources; providing for the appointment, qualifications, compensation, powers and duties of the director of such department; providing for the creation of divisions within the department and the appointment and powers and duties of the executive heads of such divisions, and * * * to repeal chapter 229 of N.R.S. relating to the surveyor general * * * to abolish the office of surveyor general and delete references thereto and to transfer the functions of the surveyor general, the state land register, the state forester fire warden and the state engineer to the state department of conservation and natural resources; * * *.'The act is a comprehensive one, comprising eleven printed pages.Subsection 2 of section 16 directs as follows: 'All personnel, records, papers, files, registers, property, equipment and funds of the surveyor general, the state land register, the state engineer, the state forester fire warden and the oil and gas conservation commission of Nevada shall be transferred to the state department of conservation and natural resources.'It should be noted that prior to the amendmentthe state land register and the state forester fire warden were offices held by the surveyor general ex officio.

2.This brings us to respondent's contention that, although by reason of the constitutional amendmentthe legislature was left free to act, such action could not affect respondent's status during the term for which he had been elected; that the constitutional amendment deleting the office of surveyor general as a constitutional office could operate only in futuro; that the legislative act of 1957 ordering the surveyor general, the state engineer and the oil and gas conservation commission to transfer their records, equipment etc. to the State Department of Conservation and Natural Resources gave retroactive effect to the constitutional amendment and that the amendment contained no language indicating that such retroactive or retrospective effect was intended.We think it clear, however, that the constitutional amendment instanter left the legislature free to act with reference to the office of surveyor general.That office became forthwith a statutory and not a constitutional office.Respondent's contention would write into the amendment a proviso to the effect that the amendment would not be operative until the expiration of the surveyor general's present term of office.We have no authority to write such proviso into the amendment, nor can we say that such proviso is implied.As a statutory office the office of surveyor general was subject to abolishment forthwith by ...