State v. Douglas
| Decision Date | 08 August 1910 |
| Docket Number | 1,926. |
| Parties | STATE ex rel. JOSEPHS v. DOUGLAS, Secretary of State. |
| Court | Nevada Supreme Court |
Mandamus by the State on the relation of Joe Josephs against W. G Douglas as Secretary of State of the State of Nevada. Writ granted.
Wm Woodburn and James R. Judge, for relator. R. C. Stoddard Atty. Gen., and Leonard B. Fowler, Deputy Atty. Gen., for respondent.
This is an original proceeding in mandamus, brought by the relator to require the respondent to file his nomination papers and affidavit as a candidate for the Democratic Party nomination for the office of clerk of the Supreme Court, to be voted for at the primary election to be held on the 6th day of September, 1910. The relator's petition alleges the necessary facts to entitle him, as matter of right, to have his nomination papers and affidavit filed and to have his name certified as a candidate for such nomination, providing such office is to be filled by election. The respondent has filed a general demurrer to the petition, and the proceeding has been submitted upon the petition and the demurrer thereto.
By an act of the Legislature entitled "An act to consolidate certain state offices in the state of Nevada," approved February, 20, 1893, it is provided: ***" St. 1893, p 32, c. 35.
It is the contention of relator that in so far as said act attempts to consolidate or combine the offices of Secretary of State and clerk of the Supreme Court, it is beyond the power of the Legislature and, hence, violative of the Constitution; that said act cannot and does not have the force of an amendment or repeal of the law existing at the time of its enactment, providing for the election of a clerk of the Supreme Court as other state officers are elected (Comp. Laws, §§ 1782, 1790, 1793), which provisions of the statute, so far as the office in question is concerned, are unaffected by other subsequent legislation. If the relator is right in this contention, the writ prayed for should issue, otherwise not.
Section 32 of article 4 of the state Constitution, as originally adopted, reads as follows: This section of the Constitution, as amended in 1889, now reads: Comp. Laws, § 86.
In considering the question presented by counsel in the briefs and in the oral argument, it will be well to advert first to the questions presented and determined in the decision of this court in the case of State ex rel. Howell v. La Grave, 23 Nev. 373, 48 P. 674, in which case the act now in question was also involved. Howell was then Secretary of State and, by virtue of said act, was the clerk of the Supreme Court, at least, de facto. By the provisions of an act to provide for the publication and distribution of the Nevada Reports (St. 1883, p. 78, Comp. Laws, § 2599 et seq.), the clerk of the Supreme Court was ex officio reporter of decisions, and for the duties imposed on the clerk as such reporter, he was allowed a salary or compensation of $600 per year. It was to compel the State Controller to issue to him warrants for such salary or compensation as reporter of decisions, that proceedings in mandamus were instituted by Howell. It was the contention of the Attorney General for the respondent in that case, that as the salary of the Secretary of State was fixed by statute at $2,400 per annum, he could not be paid any additional compensation, and to do so would be in violation of section 9 of article 15 and of section 5 of article 17 of the Constitution. Considering this contention, after citing a number of authorities, the court said:
In the opinion of the court on petition for a rehearing, was considered the further contention of the Attorney General that by the amendment of section 32, article 14, of the Constitution, supra, "the office of clerk of the Supreme Court, with all its attendant duties, ceased to be a constitutional office, and, without legislative creation then or thereafter, ceased to exist as an office; that the Legislature has not attempted to create the office of clerk of the Supreme Court, or ex officio clerk of the Supreme Court since said amendment to the Constitution in 1889; that there is not now any warrant or authority of law for the existence of any such office or officer under the Constitution or laws of this state." The court considered this contention at length and called attention to other constitutional provisions, especially those providing that no judgment of the Supreme Court should take effect and be operative until the opinion of the court in such case shall be filed with the clerk of said court (Const. § 8, art. 15); that the clerk of the Supreme Court shall keep his office at the seat of government (Const. § 12, art. 15), and said:
The question of the power of the Legislature to consolidate, combine, or materially change or alter the conditions of constitutional offices, in the absence of specific constitutional authority so to do, was not presented, argued, or determined in the La Grave Case, supra, nor was such question essential to a determination of that case. Hence, that case is not conclusive of the question presented in this case. It would seem from a reading of the opinion in the La Grave Case, that the court in rendering its opinion may have intended to be particular that the opinion should not be regarded as conclusive of any question of legislative powers not presented or considered, for it said: "If it was permissible under the Constitution for the Legislature to confer upon the Secretary of State a separate and distinct office charged with separate and distinct duties, *** we are of opinion," etc. (See full quotation above.)
It not infrequently happens that statutes are involved in cases considered by appellate courts and the provisions thereof are construed and enforced; no question being raised as to their validity. Subsequently, when the same statutes are attacked, they may be, and often are, held to be void. It is a rule of almost universal application that courts will presume statutes to be valid and will not consider a question affecting their invalidity, unless essential to a determination of the case. Such necessity did not appear in the La Grave Case. The Secretary of State, Mr. Howell, was performing the duties and exercising the functions of the office of clerk of the Supreme Court and of the ex officio office attached thereto, and was so recognized by the court and by the public. No one was contesting his right to hold the office, and, conceding the act to be unconstitutional, it was sufficient color of authority to constitute him a de facto officer and render his official acts valid. The same situation has prevailed since the decision in the La Grave Case and still prevails.
The La Grave Case is conclusive, however, upon one important point involved in the determination of this case, to wit: The office of clerk of the Supreme Court is a constitutional office. This point is so thoroughly covered by the opinion in that case that further consideration of it is unnecessary. This brings us to the question now presented for determination, Did the Legislature have the power to combine or consolidate the...
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