THE STATE OF NEVADA ex rel. W. E. COPELAND, Relator, v. J. P. WOODBURY et al., Respondents
State ex rel. Copeland v. Woodbury
THE STATE OF NEVADA ex rel. W. E. COPELAND, Relator, v. J. P. WOODBURY et al., Respondents.
[No. 1148.]
THE STATE OF NEVADA ex rel. W. E. COPELAND, Relator, v. J. P. WOODBURY et al., Respondents.
Boaed of County Commissioners May be Increased or Decreased — Constitution Consteued. — Section 26, art. IV., of the constitution, making it the duty of the legislature to “provide bylaw for the election of aboard of county commissioners,” does not prevent the legislature, after the board has been once created, from increasing or decreasing the number of commissioners that shall constitute the board.
Idem — Statute 1869, 92, Construed — Last General Election. — Held, that the words “ last general election,” as used in the statute, “creating a board of county commissioners in the several counties of this state” (Stat. 1869, 92), mean the last general election preceding the time when the commissioners are required by law to assume, the duties of their office. (Leonard, J.,. dissenting.)
Idem — Intention of Legislature — Number of Commissioners. — It was the intention of the legislature to classify the counties'by a voting population' at the general election, and to give to each county polling four thousand or more votes five commissioners, and all other counties three,-, for a. period of two years, commencing on the first Monday in January after the general election.
Rehearing — When Should Not be Granted: — A rehearing should not be-1 granted for the purpose of having a reargument, unless there is a reasons ble probability that the court may have arrived at an erroneous conclusion, or overlooked some important question which was necessary to be discussed, in order to arrive at a full and proper understanding of the case..
Application for writ of quo warranto..
The facts are stated in the opinion.
. R. B. Mitchell and W. É. F. Deal, for-Relator:
I. The object of the act was to regulate, in certain counties, the number of county commissioners by the number of votes, polled at the election at which such commissioners are voted for.'
II. The registration determines the maximum of votes that can be polled. It does, not follow that because four thousand votes or over are registered that a less number may not be polled; but where the registration is less than four thousand, no more can be polled, so that both candidates and officers whose duty is to call elections know before the election where the registration is less than four thousand that no more than the number registered can be polled.
III. The intention of the legislature in passing the act of 1869 was to keep down the burdens of government by limiting the number of officials to the ratio of the sustaining population, and to fix a certain test which was the number of votes cast at a general election held at recurring periods.
B. G. Whitman and F. M. Muff cúter, for Respondents:
I. The board of county commissioners is to be kept full by elections, and it is with reference to calling such elections that the words “last general” are used. The number of votes polled at the last is the basis of the case for the next election. To make that call, recourse must be had to the “ last general election” theretofore and-thé number of votes cast thereat. To adopt any other rule is to admit the apparent absurdity that the board of commissioners depends not upon its election upon legal call, but upon the number of votes polled at the election at which it is presumed to be filled, and that may or may not be as the count reaches, or fails to reach, the requisite numerical strength. '■ '
II. The legislature carefully provided for. an increase of the number of commissioners if the votes polled at the election therefor exceeded the minimum, and reached the maximum, of the statute, but there is no provision for any decrease. Ex-industria, this has been avoided, and the omission is evidently intentional.
III. The fact is that a board of five, once inaugurated, the number was to be permanent, for it would be nearly impracticable to reconcile the theory of the construction of a board of five, with the possibility of lessening that number by the results of an election not called in that view. Unless all three commissioners-were elected in Storey county at the last election, none were; and, further, the two remaining commissioners of the old board, being in office under the theory of a board of five, are illegally there. Either there is a board of five in Storey county or there is no board, and the governor must appoint.
IY. The boards, of either three or five commissioners, being once constituted, could not thereafter be abolished, except by constitutional amendment. (Const., sec. 26, art. IY.) The office being designated by the constitution, the only legislative duty was to- fix the number which was to constitute “the board.” This once fixed, the legislature became functus officio, and the office could not be abolished without a constitutional change. (State v. Tilford, 1 Nev. 240.) The legislature did utterly and entirely fail to provide for any diminution of the ■ number of the board of county commissioners under circumstances such as underlie the case at bar, and, it would seem, could not constitutionally do so under any circumstances, so it. follows that, as the court cannot make or alter the law,' but must decide it as written under the constitution, the respondents must hold their offices, no matter what suggestions be made on the part of the state as to the policy or, impolicy, wisdom or folly, of the statute.
By the Court,
HawSey, C, J.:
This is a proceeding by quo warranto to determine whether the respondents are entitled to hold the office of county comr missioner of Storey county,
The petition avers that at the general election held on the second day of Noveinber, 1880, there were elected in Storey county three .pounty commissioners; one commissioner to serve for the short teirm -of two, years, and two commissioners to serve for the long term of four years, from and after the first Monday of January, 1881.
That at said election there were polled-over four thousand votes — viz.: five thousand two hundred and forty-seven votes.-
That at the general election held on the seventh day of November, 1882, in pursuance of a proclamation made by the board of county commissioners, there .were elected three county commissioners in Storey county — viz.:- J. S. Werrin and J. P. Woodbury for the long term of four years, and John Yandewater for the short term of two years, from and after the first Monday of January, 1883,
That the total number of votes cast at said election was less than four thousand votes — viz.: two thousand nine hundred and thirty votes; that of that number Werrin received one thousand seven hundred and ten votes, Woodbury received one thousand six hundred and three votes, and Yandewater received one thousand six hundred and seven votes.
That at every general election held in Storey county, from and including the general election held on the third day of November, 1868, up to and including the general election held on the second day of November, 1880, there have been polled by the qualified electors of said county over four thousand votes.
Upon these facts the right of respondents to hold the office of county commissioner must, in our opinion, be determined by a construction of the act '£ creating a board of county com missioners in the several counties of this state." (Stat. 1865, 257; Stat. 1869, 92; 2 Comp. L. 3070.)
As amended in 1869 this statute reads as follows : "Section 1. At the general election of the several counties in this state in A. D. 1870, by the qualified electors of each county, a board of county commissioners, to consist of three members, shall be elected, to possess such qualifications, and to have such powers, as hereinafter provided; provided, that in any county where, at the last general election, there were polled four thousand or more votes, such board shall consist of five members. At the general election in A. D. 1870, and at such election held every two years thereafter, there shall be elected in such county one commissioner to serve upon the board of county commissioners for the term of four years; and a term of four years shall be knowm, both in this act and for the purpose of the election of county commissioners, as the long term; and the other commissioner or commissioners, as the case may be, necessary to fill the board, shall, at said election, be elected to serve upon the board for the term of two years; provided, that in any county or counties which are, or shall be, under the provisions of this act entitled to a board consisting of five county commissioners, two of the commissioners shall be elected to serve upon the board for the long term. In any county wherein at the last, or any future general election there were, or shall be, polled for the first time, four thousand or more votes, the board shall be increased to five members by appointment of the governor; and such appointees shall hold their offices until the first Monday of January following the then next general election; and at such next general election in such county or counties five county commissioners shall be elected, as provided in this section of this act."
The constitution of this state makes it the duty of the legislature to " provide by law for the election of a board of county commissioners in each county" (sec. 26, art. IV.), and, upon this provision, it is argued by respondents' counsel that after the board had once been created by the legislature so as to consist of five members, it could not thereafter be changed except by constitutional amendment. This view, if sustained, would give to Storey county five commissioners, although its popula tion might decrease to one thousand, or one hundred, or' less votes. This argument-cannot be sustained. The constitution does not, in our opinion, impose any such-limitation of power upon the -legislature. Having made provision for a board - df county commissioners in, the several counties, the legislature, has the power to^classify the- counties uncording- to the popu-? la tion, and provide the number that shall constitute the hoard; by the number of votes that may be cast ;at the election.Sueh classification may at any-time be changed and the number of .commissioners increased or decreased, as the legislature, in its wisdom, may see fit to direct. _
It is claimed by respondents that the -words 4 4 last general-election," as used in the statute,, are to be construed as a basi§; of the call to be made for. the next general election, and that Story county, having in- 1880 polled more than four .thousand votes, it was the. duty of the county commissioners, in 1882, to issue ú. proclamation for the election of three county commissioners, viz: one for the short and two for the long term ; and that respondents having been elected in pursuance .of such-a proclamation, and having received their certificates,¡were; and are, entitled to hold their offices. . ' ' )
If there was no office, under the statute, to be filled, then, the proclamation of the commissioners would be without authority of law, and the respondents cannot claim any right to the office from the mere fact that the forms of law for. the election had been complied with. There must be an office to fill, and their, right must be and is dependent upon the ques-. tion whether or not, under the provisions of the statute, the. board of county commissioners in Storey county is to consist of three or five members. , • ¡
If respondents' intrepretation of .the statute'is correct, then. Storey, county will be entitled to five county commissioners for the next.two years, although it did not at the last general: election cast four thousand votes. And it would be the duty, of the present board of county commissioners,, prior to the general, election in 1884, to accept, as a basis for the election of their successors, the vote cast in 1882, so as to reduce the; number of the board to three members, because there was not at such election four thousand votes cast; andthiswould.be their duty, although it might, at that time, be apparent that there would be more than four thousand votes cast at the general .election in 1884, and the county for two years thereafter would only be entitled to three commissioners, although its voting population might at 'the last general election have been more than four thousand.
Is this interpretation of the' statute correct ?
- If this interpretation is within the letter of the statute, and is supported by a strict grammatical construction, as is claimed by respondents, is it within the spirit of the act ?
' What was the intention of the legislature ?
Where a statute is clear, plain and unambiguous, we have repeatedly declared that there is no room for construction and the law must he followed regardless of results. But in all other cases where there is any doubt as to the meaning of the words employed-in a statute, it is the duty of courts to consider the object, scope and extent of the act in order to arrive at the intent which the legislature had in view in passing it. The intention of the legislature must, in such cases, control the courts. (Thorpe v. Schooling, 7 Nev. 17; Odd Fellows' Bank v. Quillen, 11 Nev. 114; State v. California Mining Co., 13 Nev. 224; Ex parte Siebenhauer, 14 Nev. 368; State ex rel. Flanningham v. Board of County Commissioners, 16 Nev. 94.)
In order to get at the intention of the legislature, courts have never hesitated to sacrifice the letter of the statute to the purpose and object of the legislature, whenever it could be done without violence to the language of the statute.
In ex parte Siebenhauer, supra, we said: " In order fo reach the intention of the legislature, courts are not bound to always take the words, of a statute- — either in their literal or ordinary sense — if by so doing it would lead to any absurdity or manifest injustice, but may, in such cases, modify, restrict or extend the meaning of the words so as to meet the plain, evident policy and purview of the act and bring it within the intention which the legislature had in view at the time it was enacted."
Numerous authorities are cited in support of this doctrine. (See, also, State v. King, 44 Mo. 285; People v. Utica, Insu rance Co., 15 Johns. 358; 8 Am. Dec. 251; Smith v. People, 47 N. Y. 337.)
We do not think there is any difficulty in ascertaining the intention of the legislature.
When the entire section of the act is read and carefully considered, it is evident — -to our minds — -that it was the intention of the legislature to give to every county in the state, at every general election wherein less than four thousand votes are cast, a board of three county commissioners, and to every county in the state wherein, at the general election, more than four thousand votes are cast, a board of five county commissioners, thus making the enforcement of the statute uniform throughout the state in pursuance- of the provisions of the constitution, that "the legislature shall establish a system of county and township government, which shall be uniform throughout the state." (Art. IV., section 25.)
The words "last general election" must be construed to mean*, and do mean, the last general election preceding the time when the commissioners are required by law to assume the.duties of their office. (Flanninghain's case, 16 Nev. 92.)
The statute does not establish any basis upon which a call for the election of county commissioners can always be definitely made in counties entitled, under its provisions, to five commissioners, and there may arise some inconvenience in determining in advance whether the county is entitled to three or five commissioners. It.is in many respects crude and imperfect. The draftsman in preparing it did not stop to consider whether any county in this state, having once cast four thousand votes, would ever decrease in population to less than four thousand votes. He was, to quote the language of the court in Lane v. Schomp, 20 N. J. Eq., 85, "a bad grammarian, or lacked clearness of conception sufficient to enable him to carry out the idea with which he began a sentence until he got to the end of it." But it is apparent that, with all its deficiencies as to the method of carrying it into effect, the real object of the section is absolutely clear and unmistakable, and hence, notwithstanding the inconvenience or uncertainty that may arise in determining before the election the number of votes that maybe cast, it is our duty to carry out the spirit of the act and give force and effect to the intention of the legislature. (O'Neale v. McClinton, 5 Nev. 336.)
As the respondents' right to hold the offices to which they were elected is, by the provisions of the statute, made to depend upon the number of votes cast at the time of their election, and less than four thousand votes having been cast, it follows that they are not lawfully entitled to the offices, and a judgment of ouster must be entered against them, with costs.
It is so ordered.