Ex parte Shelor , 33 Nev. 361 ( 1910 )

Per Curiam:

This is an original proceeding in habeas corpus. The petitioner, Douglass Shelor, together with one J. W. Connella, were cited for contempt of court by Hon. W. H. A. Pike, one of the judges of the District Court of the Second Judicial District of Washoe County, State of Nevada, for having published a certain false and defamatory article impugning the honor and integrity of said court. After a regular hearing the petitioner was convicted and adjudged guilty of contempt of court and sentenced by said district court to be imprisoned in the county jail of Washoe County for the term of two days, and further penalizing Petitioner Shelor to pay a fine of $400, and Petitioner Connella a fine of $100, and for failure to pay said fines petitioners to remain in jail until such time as the fines were paid at the rate of $2 per day. On the 2d day of July, 1910, a warrant of commitment issued out of said district court directed the sheriff of Washoe County to arrest the petitioners. In compliance with said order the petitioners were duly arrested and committed to the county jail of Washoe County.

On the 2d day of July, 1910, Hon. D. S. Dickerson, lieutenant and acting governor of the State of Nevada, issued the following executive order: “State of Nevada, Executive Chamber. Whereas, a petition has been filed in the office of the Governor of the State of Nevada, praying for the suspension of the fine imposed upon Douglass Shelor, who, on the second day of July, A. D. 1910, under and by virtue of a judgment made and entered in the District Court of the Second Judicial District of the State of Nevada, in and for the County of Washoe, State of Nevada, was fined in the sum of four hundred ($400) dollars, after having been convicted of contempt of said court; and, whereas, it appears that justice will be subserved by the suspension of the collection of said fine: Now, therefore, in consideration of the premises, and by virtue of the power and authority vested in me, by and under the provisions contained in section 13 of article 5 of the Constitution of the State of Nevada, I, Denver S. Dickerson, Lieutenant and Acting Governor of the State of Nevada, do hereby suspend the collection of said fine, as aforesaid for an indefinite period. Signed and dated at Carson City, Nevada, this second day of July, A. D. 1910. D. S. Dickerson, Lieutenant and Acting Governor of Nevada. Attest: W. G. Douglass, Secretary of State. [Seal.]”

A similar executive order, in behalf of J. W. Connella, was also issued as of the same date and served on the sheriff of Washoe County, who refused to honor the same.

On the 3d day of July, 1910, the said executive orders were served upon the sheriff of Washoe County, who, upon the advice of his legal adviser, William Woodburn, Jr., district attorney of Washoe County, refused to pay any heed whatever to said executive orders, because of the advice of said district attorney to the effect that the lieutenant and acting governor of the state had no authority whatevér to issue said orders, and that said orders were void. Having served the two days’ imprisonment prescribed by the order- of the court, the petitioners, Connella and Shelor, failed and refused to pay the respective $400 and $100 fines in compliance with the orders of the court, and were retained in the county jail by the sheriff of Washoe County pursuant to the order of the court which provided that for the failure to pay the fines aforesaid the petitioners should be confined in the county jail at the rate of $2 per day for every dollar of the fine unpaid. On the 12th day of July, 1910, petitions for writs of habeas corpus, in behalf of Connella and Shelor, were regularly filed in this court praying for the release of petitioners on the ground that they were illegally restrained of their liberty, because of the failure of the sheriff of Washoe County to recognize the executive orders of the lieutenant and acting governor, above quoted, suspending the fines.

All of the questions involved in the present applications for writs of habeas corpus may, for the purposes of determination, be resolved into the query of whether or not the lieutenant and acting governor of the state had the authority to issue the executive orders suspending the collection of the fines imposed by the order of the court. Or, in other words, has the governor of the State of Nevada the authority to indefinitely suspend the collection of fines and forfeitures under the constitution or any law in this state ?

Upon behalf of petitioners, it is contended such authority is vested in the governor by section 13 of. article 5 of the constitution of Nevada,- which reads as follows: “Sec. 13. The governor shall have the power to suspend the collection of fines and forfeitures, and grant reprieves for a period not exceeding sixty days, dating from the time of conviction, for all offenses, except in cases of impeachment. Upon conviction for treason, he shall have power to suspend the execution of the sentence until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, direct the execution of the sentence, or grant a further reprieve. And if the legislature should fail or refuse to make final disposition of such case, the sentence shall be enforced at such time and place as the governor, by his order, may direct. The governor shall communicate to the legislature, at the beginning of every session, every case of fine or forfeiture remitted, or reprieve, pardon, or commutation granted, stating the name of the convict, the crime for which he was convicted, the sentence, its date, and the date of the remission, commutation, pardon, or reprieve.” In short, it is contended by petitioners that the words in line 3 of section 13, namely, “for a period not exceeding sixty days dating from the time of conviction,” do not qualify the first clause of the section, viz: “The governor shall have the power to suspend the collection of fines and forfeitures.”

Before proceeding to a determination of these questions, it will be profitable to refer to a few of the cardinal and recognized rules applicable to an interpretation or construction which should guide a court in determining the true intent and meaning to be expressed on the subject in controversy by the framers of our constitution.

The Supreme Court of Nevada, in the case of State v. Doron, said: “In construing a constitution the thing to be sought is the thought expressed.” (State v. Doron, 5 Nev. 399; Newell v. People, 7 N. Y. 97.)

It is also a cardinal rule, where it is necessary to interpret or construe parts of a constitution, wherein a conflict of opinion has arisen as to the true intent and thought expressed as desired to be understood and conveyed by the framers of the constitution, to read the clauses in question in the light of the whole constitution.

The Supreme Court of New York, in the case of New-ell v. People, said: “Whether we consider an agreement between parties a statute, or a constitution, with a view to its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the instrument have placed them. If, thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare is the meaning of the instrument, and neither courts nor legislatures have a right to add or to take away from that meaning.” (Newell v. People, 7 N. Y. 9-97.)

The Supreme Court of the United States, in Prigg v. Pennsylvania, 16 Pet. (U. S.) 539, 10 L. Ed. 1060, said: “No court of justice can be authorized so to construe any clause of the constitution as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.” (Prigg v. Pennsylvania, 16 Pet. (U. S.) 612, 10 L. Ed. 1060.)

Cooley on Constitutional Limitations states: “It is not to be supposed that any words have been employed without occasion, or without intent that they should have effect as part of the law. Effect is to be given, if possible, to the whole instrument, and to every section and clause. If different portions seem to conflict, the court must harmonize them, if practicable, and must lean in favor of a construction that will render every word operative, rather than one which may make some words idle and nugatory.” (Cooley, Const. Lim., 6th ed. 72.)

The Supreme Court of the United States, in laying down a cardinal rule which should guide courts in a proper construction of constitutional provisions, said: “If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it.” (Legal Tender Cases, 12 Wall. (U. S.) 531, 20 L.Ed. 287.)

In the light of these cardinal principles of construction, let us review section 13 of our constitution, claimed by petitioners to give the governor power to indefinitely suspend the collection of fines and forfeitures, and in the light of the succeeding section of our constitution, entitled “Who may remit fines and grant pardons,” which reads as follows:

“Sec. 14. The governor, justices of the supreme court, and attorney-general, or a major part of them, of whom the governor shall be one, may, upon such conditions and with such limitations and restrictions as they may think proper, remit fines and forfeitures, commute punishments, and grant pardons, after convictions in all cases, except treason and impeachments, subject to such regulations as may be provided by law relative to the manner of applying for pardons.”

To our minds a simple reading of these two sections together, which are the only sections in the constitution of Nevada which refer to the power to remit fines or grant pardons, we are unquestionably led to the conclusion that the governor has no authority whatever to suspend a fine for a greater period than sixty days. The power to remit a fine absolutely and to grant pardons is vested, by the constitution of this state, in a board of pardons, consisting of the governor, the justices of the supreme court, and the attorney-general, and a majority of these designated officers, of whom the governor shall be one, is the only power by which a fine or forfeiture can absolutely be suspended, punishment commuted, or absolute pardon granted. It will be observed, section 13 of the constitution of Nevada simply gives the governor “the power to suspend the collection of fines and forfeitures and grant reprieves for a period not exceeding sixty days, dating from the time of conviction in all cases except cases of impeachment.”- To give to the contention of petitioners the construction that the governor has authority to remit a fine indefinitely would, in our judgment, be in variance with the plain words of the constitution and in total conflict with the succeeding section, which vests the power positively and unequivocally to remit fines and grant pardons, etc., in the board of pardons, which was specifically created for these purposes.

The legislature, in plain, unambiguous, and unmistakable terms, vested the power to pardon and remit fines in a board of pardons, consisting of the governor, justices of the supreme court, and attorney-general. Had they wished to have vested this power in the governor alone, or to have vested this power of remitting fines absolutely in the governor, they would have so stated. The construction placed upon section 13 of article 5, by the petitioners, giving the governor the power of suspending the collection of fines and forfeitures for an indefinite period, if allowed to prevail, would create a direct conflict of authority with the board specially created and endowed with this same power in the succeeding section of our constitution, quoted heretofore in this opinion, and is violative of the following cardinal rule of constitutional construction and interpretation: “A construction which raises a conflict between parts of a constitution is not admissible, when by any reasonable construction they may be made to harmonize.” (Am. & Eng. Ency. Law, 926.)

An indefinite suspension of a fine, such as made in the executive orders of the lieutenant and acting governor in the present cases, is substantially in effect a remission of the fines. (State v. Strauss, 49 Md. 288; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69 Am. St. Rep. 175; In re Flint, 25 Utah, 338, 71 Pac. 531, 95 Am. St. Rep. 853; United States v. Wilson (C. C.) 46 Fed. 748; In re Strickler, 51 Kan. 700, 33 Pac. 620; Ex Parte Clendenning, 22 Okl. 108; 1 Okl. Cr. 227, 97 Pac. 650, 19 L. R. A. (N.S.) 1041, 132 Am. St. Rep. 628; Gray v. State, 107 Ind. 177, 8 N. E. 16; State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767; In re Markuson, 5 N. D. 180, 64 N. W. 939; Commonwealth v. Maloney, 145 Mass. 205, 13 N. E. 482.)

■ The only construction to be placed on these clauses in the constitution, as the plain, unambiguous words of that instrument indicate, and as the framers of our constitution desired, is to limit the power of the governor to suspend a fine for a period of sixty days, and by this construction so limiting the power of the governor we find section 13 in complete harmony with the succeeding section, which expressly confers upon the board of pardons the power to remit fines and forfeitures, etc. To construe the section otherwise would be to construe the intention of the framers of our constitution to give the governor the identically same power with regard to the remission of fines as it in clear and unmistakable language gave to the board of pardons, thereby creating a conflict between the powers as to who should have the right to grant a remission of fines.

While it is true that the proceedings and debates of the constitutional convention are not binding authority on courts in interpreting or construing the terms of a written constitution, yet we are of the opinion they are a valuable aid in determining the purposes and true meaning of the provisions of the constitution as intended by its framers. (Moore v. District Court, 30 Nev. 458-471; Chesapeake R. Co. v. Miller, 19 W. Va. 420; Wisconsin Central R. Co. v. Taylor County, 52 Wis. 37, 8 N. W. 833; Clark v. People, 26 Wend. (N. Y.) 599; People v. New York Cent. R. Co., 24 N. Y. 485; State v. Barnes, 24 Fla. 153, 4 South. 560; People v. Harding, 53 Mich, 481, 19 N. W. 155; People v. Coleman, 4 Cal. 54, 60 Am. Dec. 581; Springfield v. Edwards, 84 111. 643; Higgins v. Prater, 91 Ky. 6, 14 S. W. 910; State v. Doron, 5 Nev. 399.) To this end, let us momentarily refer to the constitutional debates, where this very question now at issue arose during the discussion before this clause of the constitution was adopted, and it will be seen that our construction is borne out by the expressions of opinion made on the floor of the constitutional convention, and completely harmonizes these two sections of the constitution, which, if otherwise construed, as contended by petitioners, would be in conflict with each other.

In the constitutional • convention, section 13-being under consideration, the following debate was had:

“Mr. Brosnan: I move to amend this section by striking out the words, ‘to suspend the collection of fines and forfeitures.’ I do not like to give that power to any single man.

“Mr. Johnson: I think it will not be found that this section invests the executive with that extraordinary power. It will be seen by a close examination of the section that it does not propose to invest the executive with the power of pardoning at all, but he is to constitute one of a board which is invested with that power. Now, the object of this and the succeeding sections, and the extent to which they go, is merely this: That until such time as the pardoning board can meet to consider any given case, it shall be within the power of the executive to suspend the enforcement of sentence — ‘to suspend the collection of fines and forfeitures, and to grant reprieves, for a period not exceeding sixty days.’ Then, after such suspension, the pardoning power is lodged in this pardoning board. I had the honor of submitting this section to the former convention, and I then conceived it quite improper that the executive should have the extraordinary power of absolutely pardoning any one, and for the strong reason that the responsibility should not rest upon one man alone. This 'portion of the section only operates to confer a power of suspension until such time as the pardoning board can pass upon the case, and I think the gentleman from Storey (Mr. Brosnan) will see the propriety of that provision.

“Mr. Nourse: Was it intended that the sixty days’ limitation should apply also to the matter of fines and forfeitures ?

“Mr. Johnson: I think the language can bear no other construction.

“Mr. Nourse: Then I think the word ‘to’ should be stricken out where it occurs before the word ‘grant,’ so as to read, ‘and grant reprieves,’ etc.

“Mr. Brosnan: Upon examination of the section, I see that the gentleman from Ormsby is right — that the power here granted is merely to postpone sentence. I, therefore, withdraw my amendment. But I am not satisfied with the section yet. It says: ‘The governor shall communicate to the legislature, at the beginning of every session, every case of fine or forfeiture remitted, or reprieve, pardon or commutation granted.’ Now, if a forfeiture is remitted, it is blotted out forever. If these things are to be done by the governor, there is no use, it seems to me, in applying to any ultimate power, stating the name of the offender, the character of the offense, and what is to be, or has been done, in regard to such offense.

“Mr. Hovey: I would suggest that the gentleman refer to the next section, by which the pardoning board is to be established.

“Mr. Brosnan: Well, the language here is, nevertheless, inappropriate. For I hold that the word ‘remit’ implies to blot out entirely. It says ‘the governor shall communicate every case of fine or forfeiture remitted,’ etc.

“The Chairman: The chair begs leave to suggest that the pardoning power is exercised by the board, and the governor is merely required to report their action to the legislature.

“Mr. Johnson: That is it, exactly. And I think the recollection of the gentleman from Storey (Mr. Bros-nan) will serve him in that particular. We thought, in the last convention, that the governor would be the proper person upon whom to devolve the duty of reporting to the legislature the official action of the board of pardons, of which he is ex officio a member.

“Mr. Nourse: I think a careful examination of the first few lines of the section will show that, as it at present stands, the power of the governor is unlimited, for the suspension of fines and forfeitures, at all events. In order to make sure of this matter, I suggest that we strike out the word ‘to’ after ‘forfeiture, and.’

“Mr. Banks: I hope that will be done, and that we shall strike out the comma after the word ‘forfeitures’ also.

“Mr. Nourse: No, I think that is not necessary. The meaning is plain, if we take out the word ‘to.’ I move to strike out the word ‘to.’

“The question was taken on Mr. Nourse’s amendment, and it was agreed to. No further amendment being offered, the section was adopted.”

The gentlemen taking part in this debate were among the most able and prominent members of the constitutional convention; Messrs. Johnson and Brosnan later serving as justices of the Supreme Court of Nevada, and Mr. Nourse as attorney-general of this state.

The governor not having the power to indefinitely suspend the payment of a fine, the order of the lieutenant and acting governor, attempting to make an indefinite suspension of the fine imposed on petitioner by a court of justice in the solemn and sacred administration of its affairs, was unwarranted, and is totally void and of no effect. The order, being in excess of the power of the governor under the constitution, was void ab initio, and cannot be considered as valid for a period of sixty days, the time which a fine may be suspended under certain conditions by an executive order, as contended for by counsel for petitioner.

No contention having been made that the confinement of the petitioner was unlawful, for any reason other than that heretofore considered, and no valid reason having been shown why the petitioner should be discharged, the application for such discharge is denied, and the petitioner is ordered forthwith into the custody of the sheriff of said Washoe County to be by him confined in the county jail until the judgment and sentence of said district court is fully complied with, and that upon his so being placed in custody that his bondsmen in this proceeding be relieved of any further liability.

It is so ordered.