State ex rel. Aude v. Kinkead , 14 Nev. 117 ( 1879 )

By the Court,

Beatty, C. J.:

It is the official duty oí the respondent, as governor, to issue commissions to those who are elected to the office of district judge. The petitioner claims to have been elected a judge of the first district at the last general election, but the respondent refuses to grant him a commission, and this proceeding has been instituted for the purpose of compelling him to do so. Despondent demurs to the petition for mandamus, and the question is whether, upon the facts alleged, the petitioner is entitled to the writ.

It appears that at the general election, held on the fifth of Novenlber, 1878, the petitioner and the Hon. Diehard Dising were the only persons voted for for the office of district judge of the first district; that they were both eligible to the office; that Judge Dising received the highest number of votes and petitioner the next highest. The election of Judge Dising is conceded, but the petitioner contends that, under the Constitution of the State, the first district is entitled to three judges, and consequently that he also was elected. The respondent claims that the provision of the constitution giving three judges to the first district was intended to be a merely temporary arrangement; that it was within the power of the legislature to reduce the number, and that, since the passage of the act of February 27, 1866 (Stat. 1866, pp. 139, 140, sec. 1), the first district has been entitled to but ©ue judge. The petitioner insists that the act referred to is unconstitutional, and that, notwithstanding its passage by the legislature, the original provision of tlie constitution is still in force.

The question to be decided, therefore, resolves itself into this: Could the legislature reduce the number of judges in the first district ? This depends upon the proper construction of sec. 5 of art. YI. of the constitution, which is as follows:

“Sec. 5. The state is hereby divided into nine judicial districts, of which the county of Storey shall constitute the first, the county of Ormsby the second. * * * The legislature may, however, provide by law for an alteration in the boundaries or divisions of the districts herein prescribed and also for increasing or diminishing the number of the judicial districts and judges therein. But no such change shall take effect, except in case of a vacancy, or the expiration of the term of an incumbent of the office. At the first general election under this constitution there shall be elected in each of the respective districts (except as in this section hereafter otherwise provided), one district judge, who shall hold office from and including the first Monday of December, a. d. 1864, and uutil the first Monday of January, in the' year 1867; after the said first election there shall be elected at the general election which immediately precedes the expiration of the term of his predecessor, one district judge in each of the respective judicial districts (except in the first district, as in this section hereinafter provided). The district judges shall be elected by the qualified electors of their respective districts, and shall hold office for the te.vm of four years (excepting those elected at said first election) from and including the first Monday of January next succeeding their election and qualification: provided, that the first judicial district shall be entitled to, and shall have, three district judges, who shall possess coextensive and concurrent jurisdiction and who shall be elected at the same times, in the same manner, and shall hold office for the like terms, as herein prescribed in relation to the judges in other judicial districts. * * * ”

In accordance with the provisions of this section, three judges were elected for tbe first district at tbe first election under tbe constitution in November, 1864. Tbeir term expired on tbe first Monday of January, 1867. To succeed them but one judge was elected in November, 1866, and but one was elected in 1870 and in 1874, tbe general understanding being that tbe act of February, 1866, above cited, reducing tbe number of judges in that district to one, was entirely valid. Undoubtedly the same understanding prevailed at tbe recent election, and but one judge was really voted for.

There is a strong presumption in favor of the constitutionality of a law passed almost contemporaneously with tbe adoption of tbe constitution, and so long and so universally acquiesced in. No court would be justified in declaring such a law invalid unless forced to do so by tbe most cogent and conclusive reasoning. Tbe argument in behalf of petitioner, though elaborate and very ingenious, is still far from convincing. Its fundamental fault is that it attempts, by tbe application of narrow and technical rules of statutory construction, to wrest tbe provisions of tbe constitution above quoted from tbeir obvious meaning. "We shall not attempt to follow tbe argument in detail, or to notice particularly the various propositions upon which it is based. It will be sufficient to state our own construction of tbe clauses in question, and tbe reasons which we think are sufficient to sustain our conclusions,

In tbe first place, there can be ño doubt as to tbe fact that it was tbe intention of tbe framers of tbe constitution to empower tbe legislature to reduce tbe number of judges in tbe first district. This is sufficiently proved by tbe debates in tbe constitutional convention (650, 651, 713, passim). If further proof were necessary, it is afforded by tbe circumstances in view of which tbe convention acted. Tbe condition of tbe country at that time was such as to forbid any other than a provisional arrangement as to tbe number of judges to be assigned to the respective districts. In Storey county there was such an immense accumulation of old business as to require for a time an extra number of judges, but it was foreseen that as soon as the old docket was cleared off the number might be conveniently reduced. In no other county of the State was more than one judge required at that time, but it was natural to anticipate that at some future time the state of affairs prevailing along the Comstock might find its parallel in other localities and render it' necessary to increase the number of judges in other districts.

In view of these facts there is no reason for taking the following language in any other than a literal sense: “The legislature may, however, provide by law for an alteration in the boundaries or divisions of the districts herein prescribed, and also for increasing or diminishing the number of the judicial districts and judges therein.” This means that the legislature may increase or diminish the number of judges in the respective districts, and not, as petitioner contends, that the number of judges in the State may be incidentally increased or diminished by increasing or diminishing the number of districts. Besides being opposed to the natural import of the language of the constitution, this interpretation violates a cardinal rule of construction; it renders the words “and judges therein” meaningless and superfluous. For if the proposition upon which the whole argument of the petitioner rests is true — that is, that it has been established by the constitution, that, so long as it endures, the first district must have three judges, and every other district one, and only one judge — then the power to increase or diminish the number of the districts necessarily included the power to increase or diminish the number of judges in the state, and the sentence without the words “and judges therein” meant exactly as much as it is contended it means with them. We repeat, therefore, that the legislature was empowered to increase or diminish the number of the judges originally assigned to the respective districts, as provisionally organized by the constitutional convention; and we see no difficulty in answering any of the special reasons urged by the petitioner against this construction.

The proviso to section 7, article YI, which allows the legislature to designate other places than the county seat for bolding court in case a county should be divided into two or more districts, does not prove, it has no tendency io prove, that the convention intended to deprive the legislature of the power to assign more than one judge to a district. That was a provision for the benefit of counties of large area, with populations gathered about different centers. It could have no application to a small county with its whole population at the county seat.

Again, the power to “diminish” the number of judges in the respective districts is not a power to entirely deprive a district of any judge; it does not apply where a district has but one judge. To diminish means to make less, not to utterly wipe out.

It is true also that our conclusion involves the admission that the legislature might “in its caprice” (if it can be presumed ever to act from caprice) assign a hundred judges to one district; but the fact that a power is capable of abuse is no argument against its existence. Power must be reposed somewhere, and wherever it is lodged it may be abused. No people could live under a constitution which denied to its functionaries every power that could possibly be misemployed. ■

The petition for a mandamus is dismissed.