State Ex Rel. MacK v. Torreyson , 21 Nev. 517 ( 1893 )

The facts sufficiently appear in the opinion. This was a proceeding begun in the district court, in the nature of a quo warranto, to try the validity of respondent's claim or right to act as a member of the board of regents of the state university.

It is set forth in the petition that the respondent is now and ever since the month of January, 1891, has been the duly elected, qualified and acting attorney general of the state of Nevada. That since the 19th day of March, 1891, said respondent as such attorney general, and by virtue of such office claims to be a regent of the state university, under and by virtue of an act of the legislature; that he has never been nominated, elected or appointed, to fill said office of regent. That Charles E. Mack, the petitioner, H. L. Fish and J. W. Haines, are the duly elected, qualified and acting regents of the state university.

To this petition respondent demurred, upon the ground that the complaint or information did not state facts sufficient to constitute a cause of action against the defendant, and that it appears from the complaint that the defendant is a duly qualified and legally acting regent of the state university. The demurrer was sustained and the relator failing to amend his pleading the action was dismissed, and from the order sustaining the demurrer and dismissing the action the relator appeals. As the matter was submitted to us on the question of the validity of the law of 1891, under which said respondent is acting, we shall pass upon that question alone. Objection was made in the course of the argument as to the propriety of allowing the relator to prosecute this action in his own name, but we think he can maintain the action in this form under section 3724, Gen. Stat., be being individually responsible for all costs. The contention of the relator is, that the act of the legislature of March 19, 1891, under which the respondent claims the right to act as one of the regents, is unconstitutional, because it is in conflict with section 7 of article XI of the constitution. The act under consideration reads as follows: "The board of regents of the state university shall consist of three elective members, as now provided by law, and of the governor and attorney general, who shall be ex-officio members of said board."

Immediately after the approval of the above act by the governor, the respondent, who then was and still is, the duly elected, qualified and acting attorney general of the state of Nevada, qualified as such member of the board of regents, since which time he has been meeting with and acting as a member of the board.

The section of the constitution referred to reads as follows: "See. 7. The governor, secretary of state and superintendent of public; instruction shall, for the first four years, and until their successors are elected and qualified, constitute a board of regents, to control and manage the affairs of the university and the funds of the same, under such regulations as may be provided by law. But the legislature shall, at its regular session next preceding the expiration of the term of office of said board of regents, provide for the election of a new board of regents and define their duties."

On the 5th of March, 1869, a law was approved by the governor providing for the election of regents, by the legislature in joint convention on the third Tuesday of the session; and they were so elected until 1887.

On the 7th day of February, 1887, an act of the legislature was approved by the governor, wherein it was provided that the governor, secretary of state and superintendent of public instruction should constitute the board of regents until the 1st of January, 1889, and until their successors were elected and qualified. The act then provided for the election of three qualified electors, at the next general election, to be voted for the same as other state officers, and when elected should constitute the board of regents, and fixed their term of office; under this act J. W. Haines is the hold-over regent, and at the general election held in November, 1892, Charles E. Mack, the relator, and H. L. Fish were elected as regents and qualified, and entered upon the discharge of their duties as required by law.

It is the duty of courts, whenever called upon to pass on the unconstitutionality of an act of the legislature to approach the question with great caution, and before the act should be declared void it should appear that there has been a clear and palpable violation of the constitution; for the presumption is that every statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional, and such presumption is not to be overcome unless the contrary is clearly made to appear. Shaw, C. J., in the case of Wellington v. Petitioners, 16 Pick. 95, in considering the question whether or not a certain act of the legislature was valid, said; "The delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of the legislature passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt"

Applying these principles laid down with so much care and adhered to by the courts of last resort of other states, and not forgetting that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority appear that the judicial power can or will refuse to execute it, for legislative acts are to be upheld unless there is a substantial departure from the organic law, yet in connection with the above principles there is another principle or rule that courts strictly adhere to, and that is to follow precedents and not to disturb that which has been accepted as a correct interpretation of a constitutional provision for a great number of years, without it is made to appear that the decision on the question then under consideration was erroneous and should not be followed. The rule ofstare decisis means that when a construction has been once placed upon a constitutional provision by a judicial decision, it forms a precedent for the guidance of courts in all similar cases. This rule should be strictly followed, for by a strict adherence to it, it preserves the certainty, the stability and symmetry of our jurisprudence. The supreme court of the United States, as a general rule, follows the decisions of the highest courts of the several states upon the construction of their constitutions and laws, unless they conflict with or impair the efficacy of some provision of the federal constitution or of a federal statute. (Louisville Railroad Co. v. Mississippi,133 U.S. 591; 27 American Decisions, 631.)

When a word or paragraph used in a constitution has been interpreted, and its meaning determined by deliberate judicial decision, a ad has been in operation for twenty-three years, as is the fact in relation to the word "elected," used in our constitution, and the meaning of the word has been followed and acquiesced in by the courts and people of the state, we should not disturb such decision.

In the case of Clarke v. Irwin, 5 Nev. 121, Whitman, J., speaking for the court said: "When words are used in a constitution, unless so qualified by accompanying language as to alter their ordinary and usual meaning, they must be received in such meaning. The word ``elected,' in its ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held the synonym of any other mode of filling a position."

That case was decided in 1869, and although the court held that the constitution provided that the county officers should be elected by the people, yet the legislature having created the county of White Pine an emergency existed, and that that body had the power to name the county officers for the purpose of putting the new system in motion and providing for the election of their successors at the nest general election.

Without such power was vested in the legislature no new county could be organized, for officers must be appointed to make the necessary arrangements for holding the election within the boundaries of the newly created county. In the case of the State v. Arrington, 18 Nev. 412, the question before the court was as to the power of the legislature to extend the terms of offices of the then incumbents of the county assessor's office from two to four years; in passing upon the question the court adhered to the meaning of the word "elected" as defined by the court inClark v. Irwin, but the court held that "there was no emergency or special occasion calling for extraordinary action on the part of the legislature;" and that portion of the act extending the terms of the incumbents to four years was held to be unconstitutional.

The respondent admits that" under the constitution the office of regent must be filled by an election by the people, but contends that the act in question created two new offices of regent, which as soon as created were vacant and proper to be filled provisionally by the legislative appointment, in order to set the new system of the state university government and discipline in operation."

By his admission that the constitution requires that the regents shall be elected by the people, it seems to us that the respondent virtually admits that he is not entitled to discharge the duties of regent; because by such admission he takes himself without the rule as laid down in the case ofClark v. Irwin, and falls within the rule as announced in State v. Arrington; in this by increasing the number of regents from three to five the legislature was not inaugurating a new system of government for the university, but merely increasing the number of regents who were to administer the affairs of an institution which had theretofore been controlled by three; and there is nothing contained in the act of 1891 that would indicate or lead us to the conclusion that there was any emergency existing at the date of the passage of the act, whereby it became necessary that the increased number should be inducted into office prior to their election by the people.

The same rule does not apply in the case under consideration that should be invoked in cases where the legislature had created new counties, new judicial districts or new state institutions. The act of 1891 did not create a new system, it merely created two new officers to assist three others who had been elected the people to conduct the affairs of an institution which had been established and the system inaugurated years prior to 1891.

When new counties or judicial districts are created, or new state institution established, it becomes necessary that officers should be appointed to organize and put in motion the county government, the judge to preside in the district, and the officers to control the affairs of the institution under such laws as may be enacted for the government of the same; under these conditions an emergency exists and the legislature possesses the power to make provisional appointments to put the new system in motion.

We conclude therefore that the respondent is not entitled to discharge the duties of regent of the state university, by reason of the fact that he has not been elected to that position in the manner provided for by the constitution, or under the act of 1887, and the judgment of ouster must be entered.

As to whether the persons who shall be elected governor and attorney general, at the general election to be held in the month of November, 1894, will be entitled to act as regents of the state university, it is unnecessary for us to decide. All that we are called upon to decide is whether the respondent is legally entitled to discharge the duties of regent at this time, and we say he is not.

It follows that the court erred in sustaining the demurrer to the petition, for which the judgment of the district court is reversed, with instruction to said court to overrule the demurrer, and for such, further proceedings not inconsistent with this opinion.