State v. Howell

• Decision Date: 08 April 1901
• Citation: 64 P. 466,26 Nev. 93
• Parties: STATE ex rel. COFFIN v. HOWELL, Secretary of State.
• Court: Nevada Supreme Court

64 P. 466

26 Nev. 93

STATE ex rel. COFFIN v. HOWELL, Secretary of State.

Supreme Court of Nevada

April 8, 1901

Fitzgerald J., dissenting.

Original mandamus by the state, on relation of Trenmor Coffin, against Eugene Howell, as secretary of state, to require the latter to furnish him a copy of a certain act of the legislature and to include such act in the volume containing the published laws. Writ denied.

Trenmor Coffin, in pro. per. James R. Judge, for relator.

William Woodburn, Atty. Gen., A. E. Cheney, T. C. Coogan, and E. R Dodge, for respondent.

MASSEY C.J.

The relator by this action seeks to compel the respondent, as secretary of state, to furnish him a duly-certified copy of that certain act entitled "An act to regulate the payment of losses sustained by holders of full paid up fire insurance policies," deposited and filed in the respondent's office on the 12th day of February, 1901 and to further compel respondent to include said act in the volume containing the published laws enacted by the 20th session of the legislature of this state. The controlling facts set up in the petition, and which are admitted to be true, are that the above-entitled act was regularly passed by the legislature of this state at its 19th session, regularly signed by the proper officers of the two houses thereof, and presented to the governor of the state at a time less than five days before the final adjournment of said session; that within ten days after the adjournment the governor filed said act, with his objections thereto, in the office of the respondent; that thereafter and in due time the respondent regularly laid said act, together with the objections of the governor, before the 20th session of the legislature of Nevada, and the same was regularly reconsidered and passed by a vote of more than two-thirds of the members elected to each house thereof, notwithstanding the governor's objections, and was filed in the office of the respondent on the 12th day of February, 1901; that the act when so filed was not signed, and has not since been signed, by either of the presiding officers of the senate or assembly of the 20th session of the legislature, nor by the secretary of the senate or clerk of the assembly of said session.

The respondent contends that the act is not a law without the attestation of the proper officers of the 20th session of the legislature, and bases his refusal to comply with relator's demands upon that fact. The question presented by this contention is the only one to be considered, and it must be determined by the construction placed upon sections 18, 35, art. 4, of our constitution. While the question is a new one, and has come before this court in this proceeding for the first time, yet the construction of section 18 has been repeatedly before this court. In all the cases involving a construction of said section 18 it has been invariably held that the last clause of the section, requiring the signatures of the officers named therein, is mandatory, and that the enrolled bill so authenticated is the only and conclusive evidence that it has been legally enacted. State v. Swift, 10 Nev. 176; State v. Rogers, Id. 250; State v. Glenn, 18 Nev. 34, 1 P. 186; State v. Nye, 23 Nev. 99, 42 P. 866; State v. Beck (Nev.) 56 P. 1008. It is not necessary to discuss the reason of the rule, or quote from the opinions the reasons given. The question was exhaustively treated in State v. Swift, supra, in which the authorities from all sources were collected, analyzed, and explained, and approved or disapproved. In State v. Glenn the rule laid down in State v. Swift was approved, and Justice Hawley, speaking for the court, declared that "the signing of the bill by the officers designated in the constitution is absolutely essential to its existence as a law." So well settled is this rule in this state that the court as late as 1899, when asked to modify it in State v. Beck, declined to make any modification, and upon full consideration declared that the great weight of the decided cases, considered with reference to the reasoning and argument, supported the rule. Shall we, then, apply the mandatory requirement of section 18, relating to the attestation of bills, to acts which have been vetoed by the governor, and by the provision of said section 35 are required to be laid before the next legislature for reconsideration, and have passed over his veto? This is the precise question.

Section 35 reads as follows: "Every bill which may have passed the legislature, shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it with his objections to the house in which it originated, which house shall cause such objections to be entered upon its journal, and proceed to reconsider it. If, after such reconsideration, it again passes both houses by yeas and nays by a vote of two-thirds of the members elected to each house, it shall become a law not-withstanding the governor's objections. If any bill shall not be returned within five days after it shall have been presented to him (Sundays excepted) exclusive of the day on which he received it, the same shall be a law in like manner as if he had signed it, unless the legislature, by its final adjournment, prevents such return, in which case it shall be a law, unless the governor within ten days next after the adjournment (Sundays excepted) shall file such bill, with his objections thereto, in the office of the secretary of state, who shall lay the same before the legislature at its next session, in like manner as if it had been returned by the governor; and if the same shall receive the vote of two-thirds of the members elected to each branch of the legislature, upon a vote taken by the yeas and nays to be entered upon the journals of each house, it shall become a law." It will be observed that sections 18 and 35 are found in the same article,--the article devoted to the legislative department of the state government,--and, under the familiar and well-established rule, when construction is necessary should be read and construed together. It is claimed by the relator that notwithstanding the mandatory requirements of section 18, relating to the attestation by the officers of the respective houses as applied to bills which become laws with or without the governor's approval, such mandatory requirement can have no application to bills which are passed over the governor's objections at the next session of the legislature, for the reason that the provisions of section 35 authorize the court to go to the journals of the respective houses for the evidence of the constitutional requirements of its enactment and existence as a valid law. For the same reason and by the same logic it could be as well said that the requirement of section 18, relating to the signatures of the proper officers to bills which are laws with the governor's approval, or without his approval by lapse of time, is not mandatory, and therefore not essential to the existence of the law, as section 18 contains the provision that the "vote on every bill or joint resolution shall be taken by yeas and nays to be entered on the journals of each house, and a majority of all members elected to each house shall be necessary to pass every bill or joint resolution." If we so hold, we place the framers of our constitution in the anomalous position of requiring acts passed by a mere constitutional majority to be attested by the signatures of the chief officers of the legislature, as the only and conclusive evidence of their enactment, and in the same article, treating of the same subject, permitting the existence of another act...