State v. Davis

• Decision Date: 22 December 1888
• Docket Number: 1,297.
• Parties: STATE ex rel. GALUSHA v. DAVIS, Lieutenant Governor.
• Court: Nevada Supreme Court

19 P. 894

20 Nev. 220

STATE ex rel. GALUSHA v. DAVIS, Lieutenant Governor.

No. 1,297.

Supreme Court of Nevada

December 22, 1888

Application for quo warranto.

Thos H. Wells, for respondent.

BELKNAP J.

At the general election of November, 1888, the people ratified a proposed amendment to the constitution of the state abolishing the office of lieutenant governor. At the same election other proposed amendments were ratified, and, among them, one changing the time for the meeting of the legislature from the first to the third Monday in January next ensuing the election of members of the assembly. A question arose in the public mind whether these amendments were regularly adopted and became part of the fundamental law, and the governor of the state, for the purpose of placing the matter in such position that a judicial determination of the question could be obtained, appointed relator to the office of state librarian. A statute of the state constitutes the lieutenant governor, as such, the state librarian. If the office of lieutenant governor was abolished by the adoption of the proposed amendment, it necessarily follows that he is no longer entitled, by virtue of that office, to exercise the functions of state librarian, and the governor's appointee should be installed. The question then, is whether this proposed amendment to the constitution has been legally adopted. The objection urged against the adoption of the amendment is equaily applicable to the proposed amendment changing the time for the meeting of the legislature, and the conclusion to be reached must be common to each of the proposed amendments. Section 1, art. 16, of the constitution, prescribes how amendments may be made without calling a convention. It reads as follows: "Any amendment or amendments to this constitution may be proposed in the senate or assembly, and, if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice; and if, in the legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people, in such manner, and at such time as the legislature shall prescribe; and, if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shall become a part of the constitution." It is the mandate of the constitution contained in the italicized portion of the above section, that the legislature, having agreed to an amendment proposed and agreed to at a preceding session, shall prescribe the time and manner for the submission of the proposed amendment to the people. In obedience to this requirement, the legislature, at the session of 1887, enacted a law entitled "An act providing for the manner of submitting constitutional amendments to the voters of the state of Nevada." St. 1887, p. 122. The portions of this law bearing upon the question in hand are as follows: "Section 1. Whenever the conditions prescribed by the constitution of the state of Nevada for amending the same have been complied with by the legislature, the state board of examiners shall order such proposed amendments to the constitution published in one daily newspaper of general circulation, published in the state of Nevada, for a period of ninety days next preceding any general election held in this state, when any proposed amendments are pending. Sec. 2. The publisher of the newspaper publishing the proposed amendments, as required by this act, shall print, and send to the county clerk of each county in this state, as many copies of said newspaper containing the publication of said proposed amendments as there were registered voters for the general election of 1886, and the printing and mailing of said extra copies required under this act shall be done by the publishers without expense to the state. It is hereby made the duty of the clerk of each county to mail to every registered voter within his county a copy of the newspaper containing the proposed amendments. Sec. 3. The several boards of county commissioners in this state, before the next general election after final agreement by the legislature to any proposed amendments to the constitution, shall in their proclamation order that there be printed upon the ballots: 'Amendment No.--. Yes,' or 'Amendment No.--. No."' The publication herein required was not made of either of the proposed amendments, nor of any proposed amendment voted upon by the people at the last general election. The purpose of the act and the intent of the legislature are expressed in the title, to-wit: "An act providing for the manner of submitting constitutional amendments to the voters of the state of Nevada." The law was adopted in view of the fact that at the general election of 1888 no less than 11 different proposed amendments were to be submitted to the people for their approval. With 11 different separate questions to vote upon, numbered upon the ballots, respectively, amendment No. 1, No. 2, No. 3, No. 5, No. 8, No. 9, No. 20, No. 23, No. 24, No. 25, No. 27, as provided by the third section of the law above set forth, and with no convenient means generally at hand suggesting the contents or purposes of these different propositions, confusion and uncertainty would naturally arise in the mind of the voter concerning the questions upon which he was called upon to act. To remove this uncertainty, and enable the elector to vote understandingly upon the propositions presented, the legislature ordained that the proposed amendments should be published. The wisdom of the requirement is apparent, but, whatever may be said of the policy of the law, the conditions imposed are within the proper province of the legislature, and, being imposed, were indispensable to a valid adoption of the proposed amendments.

It is claimed that the matter of publication is regulated by the constitution, and that the requirement of the statute in this regard is not essential to the adoption of the proposed amendments, and was not contemplated by the constitution. The constitution does require that an amendment proposed and agreed to at a session of the legislature shall be published for 90 days next preceding the succeeding election of members of the legislature, so that the people may, if they desire, elect members specially to consider it. But the constitution having unconditionally referred to the legislature the subject-matter of the manner of submitting proposed amendments, by declaring that they shall be submitted "in such manner and at such time as the legislature shall prescribe," such reasonable requirements may be imposed by the legislature as its discretion may suggest. A publication two years prior was made in obedience to the constitution, but if, in submitting the proposed amendments to the people, the legislature required another and further publication, the power to impose the requirement is expressly conferred by the language of the constitution heretofore quoted, and is as follows: "It shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." In view of the fact that no extra compensation is allowed the publisher for the extra copies of the newspaper, it has been suggested that the legislature did not consider publication and distribution essential to the submission of the amendments, and that, if these conditions had been considered essential, compensation would have been allowed. If such inference can be drawn, it would seem that it should be restricted to the extra copies for distribution; for compensation for the printing is provided for under another law. Upon the question of the reasonableness of the compensation for the services to be performed by the publisher, we are not informed further than by the law fixing the rates allowed for printing. In the absence of any showing in this regard, it is reasonable to assume, from the length and number of the amendments, and the unusual length of time during which they were to be published, and from other considerations unnecessary to mention, that the legislature considered the compensation reasonable. It results from the views stated that the proposed amendment to the constitution abolishing the office of lieutenant governor, and the one changing the time for the meeting of the legislature, were not legally submitted to the electors of the state, and have therefore failed. It is ordered that judgment be entered in favor of defendant, with costs.

HAWLEY, J., (disenting.)

The methods of proposing and adopting amendments to the constitution are clearly defined. The provisions of the constitution in this respect are plain, simple, and explicit. The language used in the constitution is too clear to admit of doubt. "It needs no interpretation. It is so clear that interpretation could not make it clearer. It would only confuse and mystify, instead of making it plainer and more perspicuous. Its meaning is so plain that there is no room or necessity for interpretation." Paving Co. v. Hilton, 69 Cal. 490. ^[1] If the legislature would do just what the constitution, in plain and unmistakable language, requires,--nothing less,--and not attempt to do anything more, then the validity of the adoption of the...