State v. Commissioners Washoe Co. , 22 Nev. 203 ( 1894 )

The affidavit for the writ alleged that the respondents, as commissioners of Washoe county, were proceeding to let a contract for boarding the prisoners confined in the county jail, and to that end had made certain orders in relation thereto. This proceeding was brought to test their authority to make said orders. The respondents demurred to the affidavit. The question involved is the right of the board of commissioners of Washoe county to contract for the board of the prisoners confined in the jail of said county. It is claimed that the authority to purchase all necessary supplies for the prisoners is vested in the sheriff, and that the commissioners have nothing to do with it, except to allow the bill as contracted by that officer. By Stats. 1861, p. 41, as amended by Stats. 1866, p. 189 (Gen. Stats., sec. 2139), it was provided that the sheriff "shall furnish all necessary sustenance, bedding, clothing and fuel for the prisoners committed to his custody; and the commissioners are hereby required to allow him, out of the county treasury, all necessary costs, charges and expenses thereof." It is admitted that this act vested the disputed power in the sheriff, but it is contended that the law in this respect was changed by Stats. 1887, p. 108, which reads as follows: "No county officer in any county in this state, except the board of county commissioners, shall contract for the payment or expenditure of any county moneys for any purpose whatever, or shall purchase any stores or materials, goods, wares or merchandise, or contract for any labor or service whatever, except the board of county commissioners, or a majority of them, shall order such officer to do the same."

Does the latter act vest in the commissioners the authority previously existing in the sheriff?

Except as limited by the constitution, the legislature undoubtedly has full control over county affairs, and it is not suggested that it did not have the power to make the change indicated; but it is contended that it did not do so, upon the principle that a general statute does not repeal a special one, unless the intention so to do is clearly manifested; that, as the act of 1861 is nowhere mentioned in the act of 1887, the latter, at most, can only constitute a repeal of the former by implication, and, as the two acts can stand together — the one as constituting an exception to the general rule of the other that no county officer shall be permitted to contract for the county — no such repeal exists. This principle is illustrated by the case of State v. Beard, 21 Nev. 218.

The question is one of intention upon the part of the legislature, but of intention to be ascertained under the established rules for the interpretation of statutes. The courts are not permitted to speculate as to whether the legislature had a certain state of facts in view at the time of the enactment of a statute, or as to whether, if it had, the statute would not have been drawn differently; but, where the language is clear, we must suppose that the lawmakers intended just what they have said, in every aspect of the case that they ought to have had in mind. Where, as in the case of State v. Beard, supra, two affirmative statutes have been enacted — one special and the other general — and there is ample scope for the latter to operate without repealing the former, it may be presumed that the legislature did not intend to repeal the special act, although in the letter of the two acts there is a conflict. Especially is this the case in view of the rule of interpretation — which we must presume was known to the legislature — that one affirmative statute will not repeal another, unless there is an absolute conflict between them, or it can be ascertained in some manner that a repeal was intended. But where the later act is expressed in negative terms, the principle is different. Negative statutes are mandatory, and must be presumed to have been intended as a repeal of all conflicting provisions, unless the contrary can be clearly seen. "It would not, perhaps, be easy," said Sherwood, J., in Bladen v. Philadelphia, 60 Pa. St. 464, 466, "to lay down any general rule as to when the provisions of a statute are merely directory, or when mandatory or imperative. Where the words are affirmative, and relate to the manner in which power or jurisdiction vested in a public officer or body is to be exercised, and not to the limits of the power or jurisdiction itself, they may be, and often have been, construed to be directory; but negative words which go the power or jurisdiction have never, that I am aware of, been brought within the category." A negative statute, being mandatory, and in terms a negation, or denial, of the prior law, repeals it. (Bish. Writ. Law, sec. 153.) If a statute contrary to a former one be expressed in negative words, it operates to repeal the former. (Suth. St. Const., sec. 139.) Thus, an act providing that "no corporation" shall interpose the defense of usury repeals the laws against usury as to corporations. (Curtis v. Leavitt,15 N.Y. 135.) An act that "no beer" shall be sold without a license repeals a law previously authorizing such sale, under certain circumstances, without a license. (Read v.Storey, 6 Hurl. N. 423.) It is certainly the general rule that the negative words in a subsequent statute constitute a repeal of all previously enacted conflicting provisions, and we are unable to discover anything indicating a different intention in this case.

Under our statutes the commissioners are the only officers authorized generally to purchase supplies, or enter into contracts, on behalf of the county. (Gen. Stats., sec. 1949.) At the time of the enactment of the statute of 1887, but two or three instances existed where other officers had the power of so doing. Certainly, without a statute to that effect, no officer could bind the county, and, as we must suppose, that the last-mentioned act was intended to make some change in the law, and was not passed for a mere idle purpose, upon what else could it be intended to operate, if not in the instance mentioned? If intended for these few instances, why should it not as well have been intended to apply to the sheriff, in the matter of keeping of prisoners, as to the assessor in the publication of the list of taxpayers, or to the treasurer in the publication of the delinquent tax list?

It is suggested that other officers have been in the habit of purchasing supplies for the counties, and that it was to prevent their already illegal acts that the statute was passed. This is possible; but to construe the statute upon that theory would be to take our feet from the well-trodden path of recognized legal construction, to be relied upon by legislatures and courts in both enacting and construing laws, and resort to the miry bog of speculation, without chart or compass to guide our steps.

It is also argued that the difficulty of properly caring for the prisoners, if the sheriff must consult the commissioners every time he orders a meal or purchases a pair of shoes for them, proves that the legislature did not intend such a result. But to this it must he answered that, where the law is plain, this is a consideration with which the courts have nothing to do. Their duty is to ascertain and give effect to what the legislature, within the limits of the constitution, has declared. If the law works badly, it will probably be changed, but this is for the legislature to determine.

It may also be added that the act of 1887 permits the commissioners to authorize other officers to purchase all necessary supplies, etc., for the county; and we can no more suppose that they will neglect to either properly attended to county affairs themselves, or to authorize others to do so, than that the legislature would fail to enact laws necessary for that purpose in the first instance, or the sheriff fail to furnish necessary food and clothing for the prisoners in his charge while the duty of so doing rested upon him.

At any rate, it seems clear that, by the last-mentioned law, the legislature intended to place all expenditure of county funds under control of the board of commissioners; and this, under the circumstances, is conclusive of the controversy.

The application for the writ is denied.