Turner v. Fish

• Decision Date: 05 March 1886
• Citation: 9 P. 884,19 Nev. 295
• Parties: TURNER v. FISH.
• Court: Nevada Supreme Court

9 P. 884

19 Nev. 295

TURNER v. FISH.

Supreme Court of Nevada

March 5, 1886

Appeal from an order of the Sixth district court, Lincoln county denying plaintiff's application for a writ of mandamus.

Geo. S Sawyer and T. Coffin, for appellant.

W. H Davenport and H. F. Bartine, for respondent.

HAWLEY J.

Appellant is the sheriff of Lincoln county. He claims that the "Act fixing the salaries of the various county officers in the several counties of this state" (St. 1879, 133) has never been repealed or superseded by any valid law; and that under the provisions of section 9 of said act he is entitled to a salary of $250 per month. He applied to the district court for a writ of mandamus to compel the county auditor to issue a warrant for said monthly salary. The district court denied the writ.

The salary act of 1879, and all other acts amendatory thereof and supplementary thereto, were repealed by the provisions of section 1 of the "Act to repeal the 'Act fixing the salaries of the various county officers of this state,"' approved March 1, 1883. St. 1883,78. The third section provides when the act should take effect. The second section reads as follows: "Nothing contained in this act shall be of effect in any county having at the time of the approval of this act a duly-chartered city government." Conceding that this section is unconstitutional for the reason that the exception stated is not based upon any reasonable classification, ( State v. Boyd, 5 P. 735,) it does not necessarily follow that the other sections of the act are void. It is manifest, upon an examination of this statute, that the legislature intended to repeal the salary act of 1879 in every county except Ormsby, as that was the only county in the state having, at the time mentioned, "a duly-chartered city government." If the exception sought to be made by section 2 is unconstitutional, the effect would be to make this section invalid, and no county in the state would be excepted from the provisions of section 1.

The provisions of sections 1 and 2 are not so mutually connected with and dependent on each other, as conditions or compensations for each other, as to warrant the belief that the legislature intended them as a whole. It must therefore be presumed that the legislature intended, notwithstanding the invalidity of section 2, that section 1 should stand. As section 2 is entirely independent of and disconnected from the other sections, its unconstitutionality does not affect the other portions of the act which are...