THE STATE OF NEVADA, ex rel. F. H. NORCROSS, as District Attorney of Washoe County, Relator, v. THE BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Respondent
State v. Board of County Commissioners
Belknap, J.: I concur.
THE STATE OF NEVADA, ex rel. F. H. NORCROSS, as District Attorney of Washoe County, Relator, v. THE BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Respondent.
[No. 1432.]
THE STATE OF NEVADA, ex rel. F. H. NORCROSS, as District Attorney of Washoe County, Relator, v. THE BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Respondent.
(Syllabus by Bigelow, C. J.)
1 — Statutes 1895, 107, Unconstitutional. — The act of March 16, 1895 (Stats. 1895, 107), to amend an act concerning the purchase and preservation of newspapers, in so far as it attempts to regulate the matter of legal advertising and printing, is in conflict with, the provisions of the constitution (art. IV., sec. 17), requiring that each law shall embrace but one subject, which shall be briefly expressed in the title.
2 — Constitution—Art. IV., Seo. 17 of, Discussed, and Intent op Determined. — The purpose of that provision of the constitution was to prevent the combination in one act of incongruous and distinct subjects, and also imposition upon the members of the legislature and the public, by covering up, under innocent titles, vicious and harmful provisions.
3 — Legislative Act — Not Broader than Title — Where, by the title, the subject of an act is restricted to a certain purpose, the purview of the act cannot be extended to other purposes not indicated in the title. The act can be no broader than the subject expressed in the title.
4 — Constitution—Liberally Construed. — While this clause of the constitution should be liberally construed, to the end that there may be no unnecessary hampering of legislation, this liberal construction should not go to the extent of nullifying the constitution. Where an act clearly embraces two distinct and independent subjects, or the real subject of the act is not expressed in the title, it is the duty of the courts to declare the act void.
Original proceeding to obtain writ of certiorari.
The facts sufficiently appear in the opinion.
F. H. Norcross, in pro. per., and Alfred Qhartz, William Web'ster and Robert M. Clarke, for Relator:
The facts of this case were presented before the supreme court on oral argument. The question before the court is whether the act entitled “An act to amend an act entitled 'An act for the purchase and preservation of public newspapers printed and published in the several counties of this state,’ approved February 1, 1865,” is constitutional or not. Four objections are raised against the constitutionality of the amendatory act; that more than one subject is embraced in the amendatory act; that the title does not express the subject; that the amendatory act is not germane to the original act, and that it interferes with the duties of judicial officers. 'But the fact is this: Only one subject is embraced in the amendatory act, i. e., a means of giving the public better and more certain legal notice, and the only fault to be found (a purely technical fault) is that the recorder and the commissioners are used by the legislature to accomplish that single object, instead of either the recorder or the board of commissioners. Again, the mandatory wording of the act makes it the act of the legislature itself.
The amendatory act has a general purpose or object, a better use of the paper to be subscribed for and a better notice to the public of all legal advertising, and all matters fairly and reasonably connected with that object, and all necessary measures which will facilitate its accomplishment, are proper to be incorporated in the act, and are germane to its title, and the general purposes of sec. 17, art. IV. of the constitution is accomplished when the law has but one general object, which is fairly indicated by its title. (Klein v. Kinkead, 16 Nev. 194; Cooley’s Const Lim. 143, 146, and a long list of authorities quoted in Klein v. Kinkead, supra, 198.)
The truth is that neither the original nor the amendatory act fully expresses its object, but the real object is fairly implied and deducible from the title, and with absolute certainty. With the provisions of law and the common knowledge of the people that certain newspapers are the official newspapers of the counties wherein published, in which must appear all legal notices, how could the district judges obey the law by naming any other paper in which to publish legal notices? is a question which fully answers the objection raised on that point. This court will endeavor to uphold the act, if it can do so within the constitution. (State, ex rel. Lewis, v. Doran, 5 Nev. 399; State, ex rel. Ash v. Parkinson, 4 Nev. 17; State, ex. rel. Qlark, v. Irwin, 5 Nev. Ill; Humboldt Co. v. Churchill Co., 6 Nev. 30.) If the language of the act in question admits of two constructions, this court will adopt the construction which will save the act. (V. & T. R. R. Co. v. Henry, 8 Nev. 165.) The statute must be sustained if, after striking out any unconstitutional portions, there is enough left that can be executed wholly and independently of that which is rejected. (8 Nev. 322; 9 Nev. 325; 11 Nev. 128; 3 Nev. 173.) The court, in construing the amendatory act of 1895, will look at the mischief of the old law, and the object of the legislature in amending it, and the benefit sought, to be obtained. (Odd Fellows’ Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Dayton and V. & T. Ri R. Co., 10 Nev. 155; Brown v. Dams, 1 Nev. 409.)
The constitutional provision that each law shall embrace but one subject, wbicb shall be briefly expressed in the title, is mandatory, but should be liberally construed. (State v. Ah Sam, 15 Nev. 27.)
Torreyson & Summerfield, for Respondent:
The act of the legislature in controversy is an attempt of the legislative and executive departments by statute to confer a judicial function, to wit, the control of legal advertising, upon an executive and merely ministerial officer, to wit, the county recorder, and is violation of sec. 1, art. III. of the constitution of Nevada; also of sec. 17, art. IV., in the following particulars: (1) It contains three distinct and independent subjects, viz.: (a) the subscription for newspapers by county recorder; (5) the designation of such newspapers by boards of county commissioners as the official papers of counties; (c) the regulation and control of legal advertising. (2) The amendatory matter contained in the act is not matter properly connected with the subject expressed in its title, or in the title of the original act which it purports to amend. (3) The subject of said act is not briefly, or at all, expressed in its title.
This section of the constitution is mandatory. (State v. Halloclc, 19 Nev. 386; State v. Ah Sam, 15 Nev. 27; State v. Silver, 9 Nev. 227.)
Under the general title of “acts to amend” other acts, no matter can be incorporated by the amendment which would not have been properly connected with the subject of the original acts or would not have been germane to such subject. (19 Nev. 388; 10 Neb. 476; 11 Neb. 377; 9 Neb. 507; 6 Neb. 474; 17 Neb. 85; In re White, 33 Neb. 812; Trumble v. Trumble, 55 N. W. 869; 74 Cal. 553; 41 Mich. 67; 76 Mich. 579; 77 Mich. 203; 23 Am. & Eng. Ency. 268, and authorities cited.)
Where the title of an act is restrictive the courts will not seek to extend its scope so as to embrace subject matter in the body of the act which might be held to be germane to a general title. (Ex parte Hewlett, 22 Nev. 333; State v. Halloclc, 19 Nev. 384; Cooley’s Const. Lim. 149; Ex parte Livingston, 20 Nev. 282.)
An act will not be so construed as to extend its operations beyond the subject expressed in its title and matter properly connected therewith. In other words, the act must not be broader than the title. (9 Ney. 227; 19- Nev. 384; 49 Mich. 459; Sutherland on Stat. Constr., sec. 87.)
One of the principal objects of the mandatory provision of sec. 17, art. IV. Const. Nevada, was to prevent the perpetration of fraud, or surprise, upon the members of the legislature and the people by requiring the title of laws to be so worded as to impart some degree of notice as to the character of their contents. {State v. Commrs., 21 Nev. 235; State v. Hallock, 19 Nev. 389; Walclee v. Cummings, 86 Mich. 402; People v. Maheney, 13 Mich. 494; Scliool Dist. v. Hall, 113 TJ. S. 135.) [Here follows argument on the application of above authorities.]
By the Court,
Bigelow, C. J.:
Original application for a writ of certiorari. By Stats. 1895, p. 107, the legislature enacted a law entitled "An act to amend an act entitled 'An act for the purchase and preservation of public newspapers printed and published in the several counties of this state,' approved February 1, 1865." The body of the act is as follows: "Section 1.- The recorders of the several counties of this state are hereby authorized and required to subscribe for one newspaper printed and published at the county seat of each county of the state, and the board of county commissioners of the respective counties shall designate the paper so subscribed for as the official paper of the county, wherein all legal advertising and printing shall be done; provided, the rate for such work shall not exceed the rate now established by law. No paper shall be so subscribed for and designated unless it shall have been established for at least one year, and is printed and published in its entirety at its place of establishment." Pursuant to this statute the county recorder of Washoe county, on the 3d day of May, 1895, subscribed for the Nevada State Journal, a newspaper coming within the terms of the act, and notified the board of his action. June 3, 1895, the respondents, as such board, made the following order: "It is hereby ordered that the county printing of Washoe county, Nevada, be and hereby is awarded to the Reno Evening Gazette until otherwise ordered by this board." The relator, as district attorney of Washoe county, has applied for a writ to review this order, upon the ground that it is in conflict with the foregoing statute.
Although several interesting questions might be raised upon that statute, and as to whether the order of the board is in conflict with it, the point which has been principally argued, and to which we shall confine this opinion, is whether the act is in conflict with section 17 of article IV. of the constitution, which provides that ."each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which shall be briefly expressed in the title." As originally enacted in 1865 (Gen. Stats., sec. 2197, et seq.), the law, the first section of which was amended as above stated, clearly embraced but one subject, which was correctly stated in the title to be "the purchase and preservation of public newspapers printed and published in the several counties in this state." Section 1 requires the recorders to subscribe for not less than one nor more than three such county papers as the board of commissioners may select. Sections 2 and 3 direct how the papers shall be preserved and paid for, what the recorder shall be paid for his services, and the penalty for a failure to discharge his duties in that regard. Section 4 provides a punishment for abstracting or defacing the papers purchased under the act.
' Under the liberal construction of this clause of the constitution adopted by the courts {State v. Board of Commrs. of Humboldt Co., 21 Nev. 235), this was undoubtedly a homogeneous and valid law. While it contains many details, they are all of matters connected with the purchase and preservation of the newspapers, the subject stated in the title, and consequently are unobjectionable.
But into this comparatively unimportant act, involving an expenditure of probably not to exceed $30 or $40 a year, this amendment, without anything in the title to indicate the purpose to do so, injects the matter of legal advertising and printing, amounting to hundreds and perhaps thousands of dollars, whether we regard that term as applying to all legal advertising and printing or simply to that to be done for the counties. As so amended, it seems to us that the act clearly embraces two separate and independent subjects, only one of which is stated in the title; and that the one not stated is the real subject, while the other is merely the incident.
The object sought to be accomplished by the constitutional provision is not difficult to discover, and has been many times stated by the courts. It was to defeat "log-rolling5' legislation, or the combining in one act of incongruous and distinct subjects, and to prevent fraud upon members of the legislature and the general public by covering up, under innocent titles, vicious and harmful provisions, of which the titles gave no hint, and of which, consequently, no knowledge might be obtained until they were enacted into laws. (State v. Silver, 9 Nev. 227; State v. Board of Comrs. of Humboldt Co., supra.) Among the great number of bills that are introduced every session, both members of the legislature and the people must necessarily largely depend for their knowledge of the purposes of the proposed measures upon the titles under which they are presented, and experience has amply demonstrated that the constitutional provision, if fairly and liberally construed, is a great aid to good legislation, and an embarrassment only to that which is not, or at least may not be, open and above board.
Certainly, prima facie, the subject of legal advertising and printing, and the subject of purchasing and preserving newspapers, are disconnected and independent matters. If they can be shown to be related in any manner it must be through some subtle reasoning that does not occur at first blush. The only argument seriously made in support of the law as amended is that the real purpose of the legislature in enacting it was that a record of current events, legal advertisements, etc., should be preserved, and that the better to accomplish that purpose it was germane to that object to provide that the paper to be preserved should contain all such advertisements. But that argument will not bear-examination.
In the first place, the subject of the act must be the subject stated in the title; and, next, the constitution does not say that all matters connected with the purposes or objects of the act may be contained therein, but only matter connected with the subject so stated. For instance, in Ex parte Hewlett, 22 Nev. 333, the object of the legislature in enacting the amendment .then under consideration was to afford better protection to the fish of the state, and all the provisions of the amendment were properly connected with that purpose; but, as in the title its subject was stated to be the amendment of one particular section of the original act, the constitution did not permit its being extended to the amendment of other sections. -If the title is restricted to certain purposes, the purview or body of the act must also be restricted, to that subject. The act can be no broader than the subject expressed in the title. (Suth. St. Const., sec. 87.) The title here restricts the subject to the "purchase and preservation" of newspapers, and consequently the act cannot be extended to a regulation of what they shall contain. But the truth is the real subject of the amendment under consideration is not stated in the title at all. That subject is legal advertising and printing, or, as restricted to its narrowest limits, county advertising and printing. The statement that the purpose of the act is to amend the act concerning the purchase and preservation of newspapers is a mere cover. That this is the fact is easily shown by a consideration of the effect of the amendment. Previous to its enactment, the power to designate in what paper ordinary legal advertisements should be placed rested in the district judges and other officers, and county commissioners controlled the county printing. It was the duty of such commissioners, and certainly was within their power, where the possibility of competition existed, to let such contract to the lowest bidder. It may even be questionable whether the order of the board here is not in conflict with the statute, upon the ground that it constitutes the letting of a contract, without advertising, that amounts to more than $500. (Gen. Stats., sec. 1972; Sadler v. Board of Comrs. of Eureka Co., 15 Nev. 39.) At any rate, they could advertise and let it to the lowest bidder, and, where they have acted with an eye single to the interests of the taxpayers, we may suppose they have done so. They could at least have some understanding about the. prices to be charged, and if not satisfactory could go elsewhere. But by this simple amendment all this is changed. All power over legal advertising is taken from all the other officers, and vested .in the county recorder alone. That officer simply subscribes for a paper, and, following that, the commissioners must designate it as the official paper, and all legal advertising and printing must be done therein. This, too, without regard to the prices to be charged, or how poor an advertising medium it may be. We say without regard to price, for although the act provides that the "rate" shall not exceed the rates established by law, if that meads the prices to be charged for such work, we find no such rates established for the great mass of county printing or legal advertising. Every county, every newspaper, and every individual in the state is, or may be, affected by the provisions of the act upon that subject, and when, as compared with these important changes in the law, we remember that the only change made by the act as to the purchase and preservation of newspapers is that, instead of the recorder subscribing for from one to three papers, to be selected by the commissioners, he is to subscribe for but one to be chosen by himself — an immaterial change, made only to facilitate the changes in the matter of advertising and printing — the real subject of the act becomes clearly apparent, and the statement in the title that its subject is the purchase and preservation of newspapers, decidedly ironical. It well illustrates the wisdom of the constitutional provision, and the necessity of a reasonable adherence to its directions. The title was concerning a matter of but little importance, and well calculated to escape attention. The bill, in truth, passed the legislature under false colors that gave no notice of its real character to those to be affected by it.
We have often held, and still hold, that the constitution is to be liberally construed, to the end that there shall be no unnecessary hampering of legislation, but there is a wide difference between liberal construction and nullification, which would be the effect of decidirig that an act, passed under a title so misleading as this, is, notwithstanding, a valid law. The section might as well be stricken from the constitution at once as a dead letter. This distinction is well illustrated by cases heretofore decided by this court. Those of State v. Ah Sam, 15 Nev. 27; Ex parte Livingston, 20 Nev. 287, and State v. Board of Comrs. of Humboldt Co., supra, of which we entirely approve, and which, in our judgment, contain nothing in conflict with what is here held, were all cases in which, by liberal construction, the court was able to uphold the validity of the acts then under 'consideration; while, on the other hand, the cases of State v. Silver, supra, State v. Hallock, 19 Nev. 384, and State v. Hoadley, 20 Nev. 317, fell on the other side of the line, and, notwithstanding the rules of liberal construction, the acts then being reviewed were held to be unconstitutional.
Speaking of a similar provision in the constitution of New York, the supreme court of that state used language which we consider quite applicable here. It said: "The manifest intention of the constitutional provision was to require sufficient notice of the subject of proposed legislation of a private or local character to be so expressed in the title as to put not only interested parties, but also all persons concerned in the proposed legislation, upon their guard, and to inform all persons reading it of the general purpose and scope of the act. While this is not required to be done by pursuing any formula, or with much detail of specification, and great liberality of construction should be indulged in bjr the courts to uphold the constitutionality of legislation, yet a due regard to constitutional requirements demands that, when its plain and obvious purposes are disregarded or evaded, the judgment of the court should give effect to its provisions." (Johnson v. Spicer, 107 N. Y. 185, 202.)
To our minds it is quite clear that this title not only gave no such notice as is required in that case of the intention to deal with the matter of legal advertising and printing, but that it was well calculated to actually mislead by inducing the belief that it did not refer to any such subject. It follows that, as passed, the act is evasive in both the letter and spirit of the section of the constitution under consideration. It embraces the very evil against which the provision was directed, and under such circumstances the court would fail in its most important function if it did not follow the mandates of the higher law.
The act being unconstitutional, and consequently no law, so far, at least, as the subject of legal advertising is concerned, the order of the board cannot be in conflict with it, and the writ will therefore be dismissed.
It is so ordered.
Belknap, J.: I concur.