State v. Grey

• Decision Date: 08 February 1893
• Docket Number: 1.375.
• Citation: 32 P. 190,21 Nev. 378
• Parties: STATE ex rel. TORREYSON, Attorney General, v. GREY, Secretary of State.
• Court: Nevada Supreme Court

32 P. 190

21 Nev. 378

STATE ex rel. TORREYSON, Attorney General, v. GREY, Secretary of State.

No 1.375.

Supreme Court of Nevada

February 8, 1893

Application for mandamus on the relation of J. D. Torreyson, attorney general, against O. H. Grey, secretary of state, to compel the return to the legislature of certain proposed constitutional amendments. Writ granted.

J. D Torreyson, Atty. Gen., in pro. per. Thomas Wren and Trenmore Coffin, for relator.

Sardis Summerfield and R. M. Clark, for respondent.

MURPHY C.J.

At the session of the legislature of 1891 there were introduced and passed by the senate, and concurred in by the assembly, 26 and introduced and passed by the assembly, and concurred in by the senate, 2, (making 28 in all,) proposed amendments to the constitution of this state. Said proposed amendments were agreed to by a majority of all the members elected to each of the two houses, entered in their respective journals, with the yeas and nays taken thereon, and were published, in full with the statutes and the printed proceedings of the senate and assembly during the year 1891, and distributed generally throughout the state, more than three months next preceding the general election held in November, 1892. This was the only publication had of such proposed amendments. On the 3d day of February, 1893, the senate and assembly, being in session, through their proper officers, requested the secretary of state to return to each of the respective houses the proposed amendments acted upon at the fifteenth session of the legislature, for such further action as may seem to them proper and just, and as provided for in section 1 of article 16 of the constitution. But the secretary of state refused, and still refuses, to return said proposed amendments, or any of them, giving as his reason for such refusal that the said proposed amendments were not in a condition to be referred to the present legislature, for the reason that the same had not been published, "for three months next preceding the last general election;" he claiming that a publication in the statutes and journals was not a publication "for three months next preceding the general election," and was not such a publication as is required by the constitution. At the request of the senate and assembly, the attorney general applied for, and was granted, the alternative writ of mandamus.

Section 1 of article 16 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 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."

The only question we are required to pass upon is, what is meant by the sentence "and shall be published for three months next preceding the time of making such choice?" It is insisted by the attorneys for the respondent that a publication in the statute does not comply with the requirements of section 1 of article 16 of the constitution because, the statutes being printed and distributed as expeditiously as possible after the adjournment of the legislature, and therefore printed and published some 18 months before the election of members to the next legislature to be chosen, or, putting it in another form, the statutes being printed and distributed for more than 3 months preceding the general election, it was not a publication for 3 months next preceding the election. It is a well-established principle of law, and one that does not require the citation of authorities, "that the greater includes the lesser." Therefore the statutes being printed and published from 16 to 18 months before the election is publication for 3 months next preceding the election, for a statute is a continuous publication; it is the publication of edicts which the people in the state are bound to take notice of and act under. A "publication" is defined in the dictionaries: "The act of publishing or making known; notifying or printing; proclamation; divination; promulgation,--as the publication of the gospel; the publication of statutes or edicts." "Published" is defined by Worcester as the act of publishing or making public; by Webster, the act of publishing or making known; notification to the people at large, either by words, writing, or printing; by Bouvier, as the act by which a thing is made public. The design of publication prescribed by the constitution was to convey to the voters in this state the information that certain constitutional amendments had been proposed, and to afford them an opportunity to discuss the advisability of such proposed amendments, and to govern them in their choice for members of the next legislature; and that object was as well accomplished by a publication in the statutes as it could have been by any other course. It was not only sufficient to satisfy the requirements of the spirit of the constitution, but, in our opinion, the proceeding in the manner of publication was in conformity with the letter of the section under discussion. From the reading of the section it is evident that the framers of the constitution intended that the legislature should be the sole judges as to the manner in which such publication is to be made, there being no restraint on them whatever, except requiring the publication to commence at least three months before the holding of the election; and we cannot, from reason or authority, come to any other conclusion than that a publication for 18 months must be deemed a publication for 3 months, so long as that publication continued up to and including the date of the happening of the event for which the publication was intended to give the notice to the voters of the state.

The attorneys for the respondent admit that the legislative department is vested with this discretionary power, in so far as authorizing the method of publication of the amendments, so long as they were published for just three months next preceding the election. They admit that, by resolution, the legislature could authorize publication to be made in one weekly newspaper; or by printing posters, at the state printing office, and posting them in conspicuous places throughout the state; or by printing circulars, and distributing them generally to the voters; and, as we understand them, the publication might be made in any conceivable way, excepting in the statutes. This is an attempt to place a construction upon the section never intended by the framers of the instrument, nor the people when they ratified it. If we were to apply the rule of construction contended for,--then if the legislature should introduce a resolution that the notice of the proposed constitutional amendments should be published in one weekly newspaper, and the first issue of such paper, containing such notice, should be struck off 95 days before the election, then it would not be a good publication, because it was published for more than 3 months next preceding the election, --such a "narrow and technical reasoning would be misplaced when brought to bear on an instrument framed and adopted by the people themselves." In construing constitutional provisions, courts ought not, on the one hand, to indulge in ingenious speculations which may lead us wide from the sense and spirit of the instrument; nor should we apply to it such a narrow construction as would exclude the main object and intention of its framers. Therefore, where the words of a constitution are unambiguous, and, in their commonly received sense, lead to a reasonable conclusion, then such instrument should be read according to the natural and most obvious import of its framers, without resorting to subtle and forced construction, for the purpose of limiting or extending its operations.

The section under consideration contemplates a publication in the statutes or in the newspapers, as the legislature may determine, and that department has in one instance given to section 1 of article 16 of the constitution a construction which we think we are in duty bound to adopt. That was during the twelfth session. St. 1885, p. 150, "Senate joint and concurrent resolutions relative to the manner in which resolutions proposing constitutional amendments shall be treated." The fifth subdivision of that resolution reads: "Fifth. That said duplicate enrolled copies of said resolutions shall be published in the printed copies of the statutes and resolutions of the present session of the legislature, in the same order and manner as if they were the original enrolled resolutions." Showing conclusively that it was their understanding from the reading of the section under discussion that a publication in the statutes was all that was required under its provisions, and in this we think that they gave to the section the construction that was intended to be placed upon it by the framers of that instrument. From an examination of constitutions, in relation to proposed amendments of other states, we find that in...