Wren v. Dixon

• Decision Date: 15 December 1916
• Docket Number: 2259.
• Citation: 161 P. 722,40 Nev. 170
• Parties: WREN ET AL. v. DIXON.
• Court: Nevada Supreme Court

161 P. 722

40 Nev. 170

WREN ET AL. v. DIXON.

No. 2259.

Supreme Court of Nevada

December 15, 1916

Appeal from District Court, Eureka County; Peter Breen, Judge.

Action to quiet title by Mary Wren, administratrix of the estate of Thomas Wren, deceased, and by Mary Wren individually and Thomas Wren, Jr., and Marie Wren, minors, by their guardian ad litem, L. F. Thomas, against Thomas Dixon. Judgment for defendant, and plaintiffs appeal. Affirmed as to appellant Mary Wren, and reversed as to appellants Thomas Wren, Jr. and Marie Wren, and judgment ordered to be entered in accordance with the prayer of their complaint to the extent of their interest as heirs of Thomas Wren, deceased.

Sweeney & Morehouse, of Reno, for appellants.

C. B Henderson and Carey Van Fleete, both of Elko, for respondent.

McCARRAN J. (after stating the facts as above).

As we view the case at bar, it presents two questions of primary importance: First, in view of the provisions of section 1 of article 10 of the Constitution of this state as amended in 1906 (St. 1907, p. 501), was the assessment made in 1909 by the assessor of Eureka county of $10 per acre on the patented mining claim of Thomas Wren, deceased, a valid assessment and incidental to this, were the certificate of sale and deed made to the defendant Dixon valid instruments? Second, is the action barred by the statute of limitations? We shall approach these questions in the order stated.

At the outset, let us bear in mind that it was not until after the constitutional amendment of 1902 that mining claims were at all assessable in this state. The amendment to the Constitution adopted that year provided for the assessment of patented mining claims at a valuation of $10 per acre. Pursuant to that particular amendment, and only pursuant thereto, the Legislature of 1905 (St. 1905, p. 81) passed the Act authorizing assessors to assess patented mines; and the statute in that respect points for its authority directly and specifically to the constitutional amendment adopted at the general election in November, 1902. This statute took its constitutional authority and its operative vitality, so to speak, directly from the constitutional amendment providing for the assessment of patented mines at a flat valuation of $10 per acre.

It will be unnecessary for us to comment on or even conjecture as to the reasons that impelled the Legislature of 1903 to take the initial step in setting aside this particular amendment to section 1 of article 10 of the Constitution; suffice it to say that it passed another amendment to that section and article of the Constitution, which at its adoption at the general election of 1906 struck completely, nullified, and set aside this former provision. Section 1 of article 10 of the Constitution (Rev. Laws,§ 352) after its adoption in 1906 provided:

"The Legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal and possessory, except mines and mining claims, when not patented, the proceeds alone of which shall be assessed and taxed, and, when patented, each patented mine shall be assessed at not less than five hundred dollars ($500) except when one hundred dollars ($100) in labor has been actually performed on such patented mine during the year [we italicize], in addition to the tax upon the net proceeds; and, also excepting such property as may be exempted by law for municipal, educational, literary, scientific or other charitable purposes."

It must be remembered that the assessment made by the assessor of Eureka county upon which taxes became delinquent and by reason of which certificate of sale and tax deed were ultimately issued to respondent was in 1909, some three years after the adoption of that amendment to section 1 of article 10 of the Constitution last quoted. It is the contention of respondent here that, inasmuch as no statute was enacted carrying out the provisions of this Constitutional amendment until 1913, four years after the assessment of 1909, therefore the statute of 1905, enacted under the provisions of the former constitutional amendment providing for the assessment of patented mines on the basis of $10 per acre, was in full force and effect in 1909; and they support this contention by the assertion that the Constitutional amendment of 1906, fixing the assessment of patented mines at not less than $500, was not self-executing and required some statute similar to that of 1913 to put the principle in operation.

Assuming the correctness of respondent's position as to the operative effect of the constitutional amendment of 1906, which question we deem unnecessary for determination, it does not to our mind strengthen their position as supporting the validity of the assessment made under the statute of 1905. It will not be contended that the statute of 1905 would have been operative or effective for any purpose under the Constitution of this state before the adoption of the constitutional amendment of 1903. The statute of 1905 could only be effective under the authority of the amendment to the Constitution of date last named. Moreover, the peculiar wording and phraseology of the statute of 1905 is not to be overlooked. This statute does not attempt in itself to direct by specific language the assessment of patented mines on the basis of $10 per acre. On the other hand, it studiously avoided such language and pointed directly to a section and an article of the Constitution, naming the date of its adoption as being the law upon which and by reason of which the statute itself would be mandatory on the several assessors requiring them to assess "at the valuation placed upon them [patented mines] by section 1 of article 10 of the Constitution of the state of Nevada as amended," etc. Did this statute have operative vitality? Was it in force and effect after the section of the Constitution upon which it rested for that vitality was by popular will abrogated and a new and irreconcilable policy thereby set up in its stead? Whatever might be said as to the force and effect of this statute up to the time of the adoption of the amendment of 1906, we are unable to find a rule that would give it operative force in the absence of a saving clause in the newly adopted constitutional provision or in some other clause of the Constitution itself some three years after the adoption of the new constitutional provision, which was in itself inconsistent and irreconcilable with that statute. Our position in this respect, based upon the doctrine as we find it established, may be bluntly expressed thus: The constitutional amendment of 1906, fixing a minimum valuation of $500 upon patented mines, absolutely nullified the statute of 1905, which, taking its authority from an abrogated constitutional amendment, fixed the valuation at the arbitrary figure of $10 per acre.

Statutes may be nullified, in so far as future operation is concerned, by a Constitution as well as by statute. Cass v. Dillon, 2 Ohio St. 608. Indeed, it would be strange if it were otherwise. The Constitution is the direct, positive, and limiting voice of the people. It may establish a policy, fix a limit to legislation on a given subject, or prohibit specified acts as being performed by public servants. As said by Mr. Justice Thornton, in the case of Oakland Paving Co. v. Hilton:

"In fact it is the solemn declaration of the paramount organic law operating on all departments of the government, expressed in the clearest and strongest language of prohibition. No act can be done by any department contrary to its provisions. It is a law absolutely controlling the legislative, executive, and judicial departments of the government. It takes effect on laws already passed as well as to those to be enacted in the future." Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3.

Our position here is based upon the doctrine which we find eminently supported by authority, to the effect that, in the absence of a saving clause, the adoption of a new Constitution or the amendment of an old Constitution operates to supersede and revoke all previous, inconsistent, and irreconcilable constitutional and statutory provisions and rights exercised thereunder, at least so far as their future operation is concerned. 6 R. C. L.

The Supreme Court of the United States, in dealing with the question of the effect of federal constitutional amendments on the existing Constitutions and statutes of the several states, speaking through Mr. Justice Harlin, in the case of Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567, held, in substance, that the legal effect of the adoption of amendments to the federal Constitution and the laws passed for their enforcement was to annul so much of the state Constitution as was inconsistent therewith.

The state of Pennsylvania, in adopting a new Constitution incorporated the provision that all pre-existing laws not inconsistent with itself should continue in force. Prior to the adoption of this Constitution, and prior to the establishment or ratification of the federal Constitution, the state of Pennsylvania had a constitutional provision prescribing the requisites for the establishment of citizenship. The new Constitution of Pennsylvania, passed after the act of Congress of 1799, is entirely silent on the subject of citizenship, save and except as it retained, by specific provision, pre-existing laws not inconsistent with itself. In the case of United States v. Villato, 2 Dall. 370, 1 L.Ed. 419, the matter before the United States Circuit Court for the District of Pennsylvania turned upon the question whether the prisoner indicted for treason had become a citizen...