Ex Parte MANTELL and RAIGEN
Ex parte Mantell
Ducker, C. J.: I concur.
Ex Parte MANTELL and RAIGEN
No. 2598
Ex Parte MANTELL and RAIGEN
July 2, 1923.
216 Pac. 509.
1. Statutes — “Whiteley Aot” Adopting Federal Prohibition Law Held Not to Express Subject in Title as Required.
The “Whiteley Act” (Stats. 1923, p. 43), entitled “An act to make the provisions of the National Prohibition Act of the United States of America the law' of the State 'of Nevada,” etc., does not express the subject in its title as required by Const, art. 4, see. 17, because It does not appear therefrom what the provisions are, and leaves it to he ascertained by looking to the act itself.
2. Statutes — “Subject” Defined as Respects Requirement of its Expression in Title.
As respects the requirement as to expressing the subject in the title, the “subject” of a statute is the matter of public or private concern in respect to which its provisions are enacted, or the matter or thiug forming the groundwork of the act, or the matter to which it relates and with which it deals.
Original proceeding. In the matter of the petition of L. Mantell and another for a writ of habeas corpus.
Petitioners discharged.
(SANDERS, J., dissenting.)
M. B. Moore, for Respondents:
The title of Assembly Bill No. 64 is insufficient under section' 17 of article 4 of our constitution.
If the legislature cannot revise or amend a law merely by reference to its title, it cannot adopt law of different sovereignty simply by referring to its title.
There is no such act in law as the “Volstead Act,” and eighteenth amendment is no part of national prohibition act. ■
What provisions of national act are adopted? Under what procedure would violations be prosecuted? How are officers to be guided, and how are people to be protected against unlawful search?
Section 3 of Nevada act is obviously unconstitutional. The regulations of the commissioners, as promulgated, become part of national act. These regulations are being issued from time to time. Does the Nevada act adopt those not yet conceived ? To say we adopt law of another sovereignty which is not yet thought of, is ridiculous.
Of recent cases, Ex Parte Burke, 212 Pac. 193, cannot' be held as decision supporting Nevada act, and shows lack of real search and reason, while case of In Re Opinion of Justices (Mass.), 133 N. E. 453, appears to expressly state the law, and should be adopted.
Were provisions of section 18, article 4, of our constitution complied with on passage of bill ? What knowledge did reading of “Whiteley Act” convey to legislators ? Probably not five members were conversant with one-half the provisions of national prohibition act, or knew its penalties.
Lester D. Summerfielcl, District Attorney of Washoe County:
Though having instituted this action under rule that statute is presumed to be constitutional until the courts declare it invalid, I have believed this act unconstitutional, and so publicly expressed myself while legislature was in session, and cannot now resist application for writ, for following reasons:
■The act is unconstitutional because title utterly fails to comply with section 17 of article 4 of our state constitution which provides that “ * * ' * the subject
shall be briefly expressed in the title.” In this act, the subject is not expressed at all. 25 R. C. L. 844; Lewis’s Sutherland Stat. Constr. (2d. ed.), sec. 116; Gunter v. Texas Land Co., 17 S. W. 840.
The title must show the subject in itself, without reference to body of act, and from its own contents. 25 R. C. L. 850, 864; State v. Nomland, 57 N. W. 85. A title referring to some extrinsic document for its subject is insufficient. 36 Cyc. 1032; People v. Hills, 35 N. Y. 449. The true and actual subject must be expressed. People v. Briggs, 50 N. Y. 553. Reference to where subject may be found is insufficient. People v. Flemming, 3 Pac. 70; Pennington v. Woolfolk, 79 Ky. 13.
The constitutional provision is mandatory that subject be expressed in title. If it is not, the inquiry is ended and the act must fall. Anything else would be nullification, not construction. Where no subject is expressed, there is nothing to construe. State v. Commissioners, 22 Nev. 399. The national act which is sought to be adopted did express its subject. Fed. Stats. Ann. (2d ed.) Suppl. 1919, 202, viz: “An act to prohibit intoxicating beverages,” etc.
The California supreme court, in Ex Parte Burke, 212 Pac. 193, stands alone in approving adoption of statute passed by independent legislative body by reference only. Not one authority cited in that opinion in fact sustains it.
M. A. Diskin, Attorney-General; L. D. Summerfielcl, District Attorney of Washoe County, and Frank H. Norcross, Amici Curise:
Query — Is proposition • that title does not express subject answered by argument that every one is presumed to know the law ?
This does not meet constitutional objection.
The constitution requires that subject be expressed. It is plain that it is not expressed when it is only-implied or presumed. Nor does such presumption prevail against clear constitutional provision, to which all other laws must yield. 12 C. J. 699.
Nor is there any inference that the law, as matter of fact, is known. The presumption merely expresses rule that ignorance of law is not excuse for its violation. 22 C. J. 149, 151.
The subject is not expressed in title. The constitution requires that it should be.
Query — When a constitution provides that an act shall be read section by section, and the act adopting law of another legislative body is so read, is this not sufficient compliance, irrespective of other constitutional provisions ?
This is not correct.
The various parts of a constitution should be construed together. 12 C. J. 707. The real purpose must prevail over literal meaning. 12 C. J. 702.
By the Court,
Coleman, J.:
This is an original proceeding in habeas corpus whereby the petitioners seek to be discharged from custody pursuant to a warrant of arrest issued upon a complaint charging them with a violation of the Whiteley act (Stats. 1923, p. 43). Several grounds are urged in support of the contention that the act mentioned is unconstitutional and void. In view of the conclusion which we have reached, though it would be interesting and instructive to pursue the other course, we will consider but one of the grounds urged, since a determination of that must result in the discharge of the petitioners, namely, Is the title of the act violative of section 17, article 4, of the Constitution of Nevada? The title of the act reads as follows:
"An act to make the provisions of the National Prohibition Act of the United States of America the law of the State of Nevada; and to repeal an act entitled 'An act to prohibit the manufacture, sale, keeping for sale, and gift, of malt, vinous and spirituous liquors, and other intoxicating drinks, mixtures or preparations, making the superintendent of the Nevada state police ex officio commissioner of prohibition, and defining his duties; and providing for the enforcement of this act, and prescribing penalties for the violation thereof,' enacted pursuant to direct vote of the people, general election, November 5, 1918; and to repeal all acts, in conflict herewith; and other matters connected therewith."
Section 17 of article 4 of the constitution, so far as pertinent, provides:
"Each law enacted by the legislature shall embrace but one subject, which subject shall be briefly expressed in the title. "
The specific question to be determined is: Does the title of the act express the subject thereof? The only attempt, if any at all was made, to express the subject of the act in the title, was by the words:
"An act to make the provisions of the National Prohibition Act of the United States of America the law of the State of Nevada."
To intelligently dispose of the point urged upon us we should first determine what the purpose of the provision of the constitution in question is. This was done by us in Ex Parte Cerfoglio, 44 Nev. 343, 195 Pac. 96, at some length, and we will content ourselves here in saying, briefly, that the purpose of the act, so far as it applies to the situation in hand, is to require the title of an act to set forth the subject sought to be legislated upon in such a manner as to fairly give notice of the actual enactment without imposing upon the members of the legislature and the public the burden of looking elsewhere to ascertain just what is the subject sought to be legislated upon. With this brief statement in mind, and alive to the well-recognized rule that constitutional provisions should be liberally construed, let us inquire if the provision in question was violated in the act mentioned.
This naturally brings us to an inquiry as to what is meant by the term "subject" of the act, as used in the constitution. We do not think there is any misunderstanding on that point. Lewis's Sutherland, Stat. Constr. (2d ed.), sec. 116, says:
"The subject of a statute is the matter of public or private concern in respect to which its provisions are enacted."
In 25 R. C. L., p. 844, it is stated:
"The 'subj ect' of an act is the matter or thing forming the groundwork of the act."
"The 'object' of an act is the aim or purpose of the enactment, while the 'subject' is the matter to which it relates and with which it deals." McNeeley v. Oil Co., 52 W. Va. 616, 44 S. E. 508, 62 L. R. A. 562.
These quotations clearly and concisely state the rule as recognized by all authorities.
Reverting to the title of the act in question, if such it can be called, does it anywhere even suggest the subject sought to be legislated upon? From a perusal of the title of the federal statute it will be seen that the subject of that act was therein referred to, but the title of the Whiteley act merely refers to or designates the "provisions of the National Prohibition Act" as a law which is sought to be enacted into a state statute.
Is there anything in the title in question to enable the people or the legislators to grasp the purpose and scope of the bill without reference to any other document? We think not. The so-called title merely declares that it is an act to make the "provisions" of an act of Congress the law of the State of Nevada. It is true that it undertakes to designate the act of Congress, the provisions of which it purports to incorporate into a law. Nowhere in the title of the statute does it appear what the provisions of the act of Congress are. To ascertain what they are, one must look to the act of Congress itself. That this will not suffice we do not think any one could be so bold as to contend.
The national prohibition act cannot be the "subject" of legislation in the sense in which that term is used in the constitution. The act mentioned is itself legislation upon a subject. By what manner of legerdemain can an act of Congress which legislates upon a recognized subject itself become a subject of legislation? If the "National Prohibition Act" (41 Stat. 305) can be a subject of legislation, why might not our legislature pass an act entitled "An act providing for the enactment into law of House Bill No. 5000, as passed by the Congress of the United States" ? The mere fact that it is designated House Bill No. 5000 matters not if the act is or can be the subject of legislation. Surely no one would say that a statute with such a title could become a law in the face of the constitutional inhibition invoked in this case. Yet, what is the difference between the so-called statute before us and the supposed one? In either case all that the title does is to point out where the subject-matter sought to be legislated upon may be ascertained. This does not measure up to the requirement of the constitution. Such a title is no nearer a compliance with the requirement of the constitution than a title reading, "An act to amend chapter three hundred and eighty-nine of the laws of eighteen hundred and fifty-one," concerning which the Court of Appeals of New York, in People v. Hills, 35 N. Y. 449, said:
"No human ingenuity would ever discover that subject [the one covered in the body of the act]. The true and actual subject or object' must be thus expressed, or the evil and mischief which the framers of the constitution sought to avert and prevent will not have been effectually guarded against."
Equally appropriate are the words of the Supreme Court of Texas in Gunter v. Texas Land Co., 82 Tex. 496, 17 S. W. 840:
"The mischiefs intended to be avoided by section 35 of article 3 of the constitution have been so often stated that it is not now necessary to restate them, and it must be deemed settled that such a law is mandatory, and hence binding upon every department of the government. While this is so, such provisions have been liberally construed, and it has been steadily held that a title which in substance is a compliance with the requirement of the constitution is sufficient; but can it be claimed that the title in question is sufficient even under this liberal rule? The constitution declares that the 'subject shall be expressed in the title,' and it cannot be said that this has been done where the title does no more than to furnish a reference to some other writing, document, or law from which by search the true purpose of a title may be ascertained."
In Pennington v. Woolfolk, 79 Ky. 13, the court had under consideration the sufficiency of a title to a statute reading:
"An act to amend article three of chapter five of the General Statutes." Laws 1873-74, c. 524.
The court, in holding the act unconstitutional because the subject was not expressed in the title, said :
"The title of the act under consideration can only be regarded as sufficient, even for the purpose of an amendment germane to the article mentioned in the title, by supposing the members were so well acquainted with the several chapters, and the subject of each, that they could, from the simple mention of the number of the article and chapter, know the subject of that particular article."
In accord with the authorities mentioned are the following: State v. Nomland, 3 N. D. 427, 57 N. W. 85, 44 Am. St. Rep. 572; Lewis's Sutherland, Stat. Constr. (2d ed.), sec. 132; 36 Cyc. 1032; 25 E. C. L. 850.
We are clearly of the opinion that the title of the statute in question fails to express a subject, and is therefore fatally defective.
It is ordered that the petitioners be discharged from custody by the sheriff.
We desire to express our gratitude to counsel appearing amici curias for their generous assistance in this matter.
Ducker, C. J.: I concur.