State v. Houdley

• Decision Date: 05 August 1889
• Docket Number: 1,301.
• Parties: STATE v. HOUDLEY.
• Court: Nevada Supreme Court

22 P. 99

20 Nev. 317

STATE v. HOUDLEY.

NO. 1,301.

Supreme Court of Nevada

Aug 5, 1889

Appeal from district court, Ormsby county;

HAWLEY C.J., dissending.

RICHARD RISING, Judge.

Baker & Wines, for appellant.

The Attorney General, for respondent.

BELKNAP J.

Appellant was the treasurer of Eureka county during the times mentioned in the complaint, and as such officer collected to the treasurer of the state within the time required by law. This action was accordingly brought to enforce payment of the sum of $7,911.79, that being the amount he had received for the state, together with a penalty of 25 per. cent upon this sum amounting to the further sum of $1,977.94, and for interest and costs. The principal sum was paid before the trial of the action. Judgement was rendered for the amount of the penalty. The only question made is upon the correctness of this ruling.

The provisions of law relating to the penalty are contained in an act of the legislature approved February 24, 1886, entitled "An act defining the duties of state comptroller. "Gen. St.§§1807-1831. This stature at its eighth and ninth sections inter alia, requires the comptroller to state an account against any officer who has received moneys belonging to the state, and failed to make a settlement there of within the time prescribed by law, adding thereto 25 per cent as damages; and if such officer fail to settle, the comptroller shall direct the attorney general to institute an action at law for the recovery of the amount of the account. Appellant contends that so much of the statute as attempts to impose a penalty conflicts with section 17 of article 4 of the constitution, which provides: "Each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject, and matter properly connected therewith, which subject shall be briefly expressed in the title." The question is, does an act entitled "An act defining the duties of state comptroller" express, by its title the subject of the imposition of a penalty against other officers for delinquencies in making settlements? Judge Cooley, in his "Treatise on constitutional Limitations," discusses the subject of the evils intended to be remedied by similar constitutional provisions, and summarizes as follows "It may, therefore, be assumed as settled, that the purpose of these provisions was First to prevent hodge-podge or 'log-rolling' legislation second to prevent surprise or fraud upon the legislature by means of provision in bills of which might, therefore, be overlooked and carelessly and unintentionally adopted; and third to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise,if they shall so desire." Const. Lim. (4th Ed) 175. The purpose of a title is to give notice of the subject of the law. The title of the act in question sufficiently express its subject, so far as it recently expresses its subject, so far as it relates to the duties of the state comptroller, but it gives no intimation of an intention to impose a penalty or damages upon officers delinquent in their settlements. In this latter respect the act is obnoxious to the objection mentioned by Judge Cooley of misleading the legislature and the people by failing to express in its title the subject contained in the body of the bill. This is the character of legislation against which the constitutional provision is directed. Again, the act contains two subjects First that of the duties of state comptroller; and second the imposition of a penalty against others officers. In this respect it disregards the requirement that "each law shall embrace but one subject." For these reasons we are unconstitutional in so far as it undertakes to impose a penalty against the appellant. Judgement reversed, and cause remanded.

HAWLEY C.J., (dissenting)

If the act under consideration contains two distinct and separate subjects, having no connection with each other, then the conclusion arrived at by the court is correct. There can be no difference of opinion upon the point that a statute cannot have any force beyond the purpose expresses in the title. The vital question is whether there are two separate and distinct subjects specified in the car. To determine this question the whole act, its object and purpose,. must be considered. If upon such investigation the matters therein contained are found to have a reasonable or natural connection with the subject expressed in the title, and are appropriate to the object sought to be accomplished by the act, then such matters are "properly connected therewith" and should not be held to be in conflict with the provisions of the constitution. What is the object of the statute? Clearly to define the duties of the state comptroller. Now, without looking closely at the provisions of this act, and considering the full scope of his duties, it might be said that the imposition of a penalty upon county officers,l for a failure upon their part to perform their official duties, is a matter wholly foreign to the duties pertaining to the office of state comptroller. It is apparentwithout argument, that under an, "act defining the duties of state comptroller" no penalty could be imposed upon a county recorder for a failure upon his part to file and record a declaration of homestead or a notice of mechanic's lien presented to him by individuals for that purpose; because such matters bear no relation whatever to, and have no connection with, any of the duties properly pertaining to the office of state comptroller. Other illustrations could be given in reference to certain duties of every county officer. No such general question, however,is involved in this case. The question here is whether the particular penalty imposed in section 8 has any relation to, or is any manner properly connected with, any of the official duties of the state comptroller. In the order to correctly determine this question it must constantly be borne in mind that the provisions of the constitution under the review are to be liberally and not strictly constructed by the courts. Cooley, Const. Lim. 178, and numerous authorities there cited.

The state comptroller is the chief financial officer of the state, and as such should be, and he is, clothed by law with the authority and duty to take all necessary steps in order to secure the prompt payment of all moneys due and owing to the state. He is required to keep the accounts of all parties, whether public officers, private individuals, or corporations belonging to the money in their possession belonging to the state. In brief, his office, and duties pertaining thereto, are such, in their very nature, as to invest him with the responsibility of keeping at all times a watchful eye over all moves belonging to the state. His duties extended to the methods of collecting such moneys, as well as to the disbursement of money by the state. It therefore follows that all the parties having any money belonging to the state or bound to examine and castrating what his duties are, and especially to take cognizance of the power and authority given to him by law to enforce the collection of money due to or owing to the state. It was to secure the prompt collection of such money that the legislature deemed it necessary, or at least advisable, to impose a penalty upon all delinquents having money belonging to the state, who failed to pay the same within the same within the time prescribed by law. The penalties there is a punishment is not for a crime,. and is not solely penal in its character. The statute should be so constructed as to give effect to the intention of the legislature "without any reference to strictness upon one side, or favor upon the other.' State V. Mining Co., 13 Nev. 224 and authorities there cited. The legislature in imposing the penalties had a twofold object in view, viz., to prevent if possible, any delay of payment by imposing additional burdens, and if delay...