State v. Hallock

• Citation: 12 P. 832,19 Nev. 384
• Decision Date: 01 February 1887
• Docket Number: 1,258.
• Parties: STATE ex rel. DRURY v. HALLOCK
• Court: Nevada Supreme Court

12 P. 832

19 Nev. 384

STATE ex rel. DRURY v. HALLOCK

No. 1,258.

Supreme Court of Nevada

February 1, 1887

Application for mandamus.

H. F Bartine, for relator.

J. D Torreyson, for respondent.

HAWLEY J.

Relator is a member of the assembly of this state. He seeks, by the writ of mandamus, to compel respondent, as state comptroller, to draw a warrant in his favor at the rate of eight dollars per day for each day of service, as provided in section 7 of "An act reducing and regulating the salaries and compensation of certain state officers and attaches of the state government of Nevada," approved February 21, 1881. St. 1881, 43; Gen. St. § 2300. Respondent refuses to issue any warrant to relator, except for "seven dollars per day for each day of service," as provided in section 5 of "An act to amend an act entitled 'An act reducing and regulating the salaries and compensation of certain state officers justices of the supreme court, and attaches of the state government of Nevada,' approved February 21 1881," approved March 12, 1885. St. 1885, 99; Gen. St. 2308.

By a reference to the original act of 1881 it will be observed that certain state officers are named. The justices of the supreme court are not included or named therein. The legislature in 1885, after amending sections 1, 2, 3, 4, and 7 of the act of 1881, added a supplemental section reducing the salary of the justices of the supreme court, and injected the words "justices of the supreme court" into the title of the act of 1881 in such a manner that any person unacquainted with the facts would naturally suppose, upon examination of the amended act, that "justices of the supreme court" were included in the original act of 1881.

Is the amendatory act of 1885 constitutional? The constitution provides in plain, positive, and mandatory terms that "each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only, but, in such case, the act as revised, or section as amended, shall be re-enacted and published at length." Article 4, § 17.

In determining the question whether the amendatory act of 1885 violates any of the provisions in this section of the constitution, it is deemed advisable to call attention to the fact that the legislature of 1881 passed "An act fixing the salaries of the justices of the supreme court of the state of Nevada," approved February 19, 1881. St. 1881, 43; Gen. St. 2291. It therefore appears that the legislature deemed it proper and wise to legislate upon the subject of "fixing the salaries of the justices of the supreme court," independent of the subject of "reducing and regulating the salaries and compensation of certain state officers and attaches of the state government." Does it not necessarily follow, from the facts already stated, that the attempt of the legislature in 1885 to amend the title of the act of 1881 by inserting therein an additional subject was in direct violation of the first clause of the section of the constitution above quoted? It may have been within the power of the legislature in 1881, as an original measure, to have adopted a title that would have been broad enough to include both classes of state officers in one act; but, having adopted a limited title for each, and passed separate acts, it was not within the power of any subsequent legislature to amend the title of either act so as to include the matters legitimately pertaining to the other.

Under the provisions of the constitution, is it not made clear that the legislature of 1881, under the title "fixing the salaries of the justices of the supreme court," could not have embodied any provision in that act relating to the salaries of any other state officers, because the title was limited to the subject therein named? Is it not equally as plain that the legislature of 1881, in passing the act "reducing and regulating the salaries and compensation of certain state officers," did not intend to include justices of the supreme court or any state officers than those named in the body of the act? If this be true, then does it not logically follow that, in amending the act of 1881, the legislature would have no power to include any class of state officers not named in the original act?

"As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are vested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so." Cooley, Const. Lim. 149.

The manner and methods pursued in preparing the so-called amended act of 1885 are extremely reprehensible, and have always been universally condemned. The constitutional provisions were either overlooked or intentionally ignored. The legislature did not properly refer to the act "approved February 21, 1881." The title of that act is essentially different from the title of the act specified in the amended act. The constitution declares that "no law shall be revised or amended by reference to its title only." This provision does not authorize the legislature to dispense with a reference to the title of the act sought to be amended. It was intended by the framers of the constitution that, in the revision or amendment of a statute, "the title of the act to be amended should be referred to." Feibleman v. State, 98 Ind. 520.

The proper method of complying with this clause of the constitution would be to correctly copy the title of the act referred to. If any other course is pursued, it might lead to endless confusion and uncertainty, which, among other things, the constitutional provision intended to prevent. This is made plain by reading the entire section of the constitution. In order to comply with its provisions not only must the title of the act to be amended be referred to, but the sections "as amended shall be re-enacted and published at length."

If the title of the original act had been correctly copied, (leaving out "justices of the supreme court,") then section 8 of the amended act of 1885, which relates exclusively to the salary of the justices of the supreme court, would have to be declared unconstitutional, because the title of the original act only embraced certain state officers and attaches of the state government, and, as before stated, the justices of the supreme court were not named in the act. We have already shown that an amendatory act cannot include any other subject than that embraced in the act to be amended, and "matter properly connected therewith." Therefore, if the words "justices of the supreme court" could be treated as surplusage, and stricken out of the title of the amended act, it would be our duty to declare all of the provisions of the amended act relating to the salary and compensation of the state officers and attaches of the state government named in the act of 1881 valid, and section 8, relating to the salary of the justices of the supreme court, void. State v. Bankers, etc., Ass'n, 23 Kan. 501; Burlington & M. R. R. Co. v. Saunders Co., 9 Neb. 511; S. C. 4 N.W. 240; Wisner v. Mayor of Monroe, 25 La. Ann. 598; People v. Briggs, 50 N.Y. 565; Chiles v. Monroe, 4 Metc. (Ky.) 75; State v. Persinger, 76 Mo. 347; Stone v. Brown, 54 Tex. 340.

The substance of all the authorities which discuss the effect of the law in cases where the act is broader than the title is thus clearly stated by Judge Cooley: "But, if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated it must fail." Cooley, Const. Lim. 148.

If the provisions of the amendatory act of 1885 only related to matters that were included in the original act, then we would be authorized to treat the words "justices of the supreme court" as surplusage, and exclude them from the title; because in such a case it would clearly appear that no one had been, or could be, misled by...