State v. Tufly

• Decision Date: 03 February 1887
• Docket Number: 1,260.
• Parties: STATE ex rel. STEVENSON v. TUFLY.
• Court: Nevada Supreme Court

12 P. 835

19 Nev. 391

STATE ex rel. STEVENSON v. TUFLY.

No. 1,260.

Supreme Court of Nevada

February 3, 1887

Application for mandamus.

Wm. M Stewart, for respondent.

BELKNAP J.

This is an amicable proceeding brought for the purpose of testing the validity of an amendment to the constitution authorizing the investment of moneys pledged to educational purposes, in the bonds of any of the states of the United States.

Section 1 of article 16 of the constitution prescribes how amendments may be made without calling a convention. It 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 sháll be entered on their respective journals, with the yeas and nays taken thereon, and referred to the legislature then 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 may 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."

At the eleventh session of the legislature, the following proposed amendment was agreed to:

"Resolved by the assembly, the senate concurring, that section three of article 11 of the constitution of the state of Nevada be amended so as to read as follows:

"Sec. 3. All lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of public schools in the act of the thirty-eighth congress to enable the people of the territory of Nevada to form a state government; the thirty thousand acres of public lands granted by an act of congress approved July 2, A. D. 1862, for each senator and representative in congress; and all proceeds of lands that have been or may hereafter be granted or appropriated by the United States to this state, and also the five hundred thousand acres of land granted to the new states under the act of congress distributing the proceeds of the public lands among the several states of the Union, approved A. D. 1849, provided that congress make provisions for or authorize such diversion to be made for the purpose herein contained; all estates that may escheat to the state; all of such per cent. as may be granted by congress on the sale of lands; all fines collected under the penal laws of this state; all property given or bequeathed to the state for educational purposes; and all proceeds derived from any or all said sources,--shall be, and the same are hereby, solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses, and the interest thereon shall from time to time be apportioned among the several counties in proportion to the ascertained number of the persons between the ages of six and eighteen years in the different counties, and the legislature shall provide for the sale of floating land-warrants to cover the aforesaid lands, and for the investment of all proceeds derived from any of the above-mentioned sources, in United States bonds or bonds of this state, or the bonds of such other state or states as may be selected by the boards authorized by law to make such investments: provided, that the interest only of the aforesaid proceeds shall be used for educational purposes, and any surplus interest shall be added to the principal sum: and provided, further, that such portions of said interest as may be necessary may be appropriated for the support of the state university."

No entry of the proposed amendment was made upon the journal of either house, and the question presented is whether or not this omission was fatal to the adoption of the amendment.

An inquiry based upon similar facts and constitutional provisions was recently presented to the supreme court of Iowa. In pronouncing the amendment invalid, the court employed the following language, which we adopt: "The object of the provision [entering the amendment upon the journals] cannot be doubted or misunderstood. It is to preserve, in the manner indicated, the identical amendment proposed, and in an authentic form, which, under the constitution, is to come before the succeeding general assembly. No better mode could have been adopted, when it is considered that, to be effective, the proposed amendment must be agreed to by the succeeding general assembly. This thought is much strengthened by the consideration that the proposed amendment is only required to be entered on the journals of the first general assembly which acts thereon. This distinction, to our minds, is significant, and enhances the importance of the constitutional injunction that the proposed amendment shall be entered on the journals of both houses of the...