State Ex Rel. Miller v. Lani , 55 Nev. 123 ( 1933 )

Petitioners claim that the act of March 28, 1933, is unconstitutional for the reason that it was an attempt by the legislature to change, by diminishing, their salaries during the term of office for which they were elected, and that the same is in conflict with the provisions of the constitution of the State of Nevada, and particularly sec. 9 of art. XV, being sec. 170 N.C.L., in which the proviso: "no such change of salary or compensation shall apply to any officer during the term for which he may have been elected" is decidedly broad and sweeping, and under the rule of construction as laid down in State v. Arrington, 18 Nev. 412,4 P. 735, it is our contention that this provision of the constitution would include any elective officer during the term for which he may have been elected, and should not be construed as applying to any particular class of officers named in the constitution. The salaries of officers fixed in the constitution at the time of its adoption were the salaries of state officers only. Sec. 5, art. XVII. No constitutional provision has ever been adopted writing into the constitution any salaries for county officers; and we know of no case in this state holding that the provision in sec. 9, art. XV of the Nevada constitution relates to county officers. We think that the language of the provision means that no officer whose salary is fixed in the constitution is to be subjected to a change in salary during the term for which he may have been elected, and no other; and, so far as this constitutional provision is concerned, other officers, even though they may be named and provided for in the constitution, are not protected thereby unless their salaries are or were fixed in the constitution.

OPINION 1. This is an original proceeding in mandamus. Each of the relators was elected to a county office in Elko County in November 1932, for a term of four years, and qualified in January 1933. At the session of the legislature held in 1933, an act was passed and duly approved (Stats. 1933, c. 191), effective April 1, 1933, reducing the salary of each of the relators. The only question involved is the constitutionality of such an act; that is, can the salary of a county officer be reduced to take effect during his term of office?

It is conceded that the legislature has plenary power to pass an act diminishing the salary of a county officer effective during his term unless inhibited by the constitution. 46 C.J. 1020.

Article 17, sec. 5, of the constitution, as originally adopted, fixed the salary of all state officers, but not of county officers.

The provision of the constitution which it is claimed by relators inhibits the legislature from enacting a law changing the salary of a county officer during his term is article 15, section 9, as originally adopted, which reads: "The legislature may, at any time, provide by law for increasing or diminishing the salaries or compensation of any of the officers whose salaries or compensation is fixed in this constitution; provided, no such change of salary or compensation shall apply to any officer during the term for which he may have been elected."

As we have shown, one article of the constitution fixed the salaries of all state officers, whereas article 15, sec. 9, down to the proviso, admittedly deals solely with the question of increasing and diminishing the salary of a state official, and none other. Petitioners rely upon the words "any officer" in the proviso to sustain their contention, asserting that by the use of these words the constitutional convention intended to include all officers mentioned in the constitution, whether county or state.

2. We cannot accept this contention. The rule which we think here applicable is stated as follows: "The operation of a proviso is usually and properly confined to the clause or distinct portion of the enactment which immediately precedes it, and does not extend to or qualify other sections, unless the legislative intent that it shall so operate is clearly disclosed." 59 C.J. 1090; In Re McKay's Estate, 43 Nev. 114, 184 P. 305; State v. Beemer, 51 Nev. 192, 272 P. 656.

There is nothing to indicate that it was intended that the proviso should refer to any other section of the constitution; hence it must follow that the writ sought must be denied.

There is another reason why we should deny the writ, which is that the constitution was construed at sessions of the legislature immediately following its adoption, contrary to the contention of petitioner, and continually down to the present time.

The legislature of this state in 1865 (Stats. 1865, c. 125, p. 386) enacted that at the general election in 1866, and every two years thereafter, a district attorney should be elected in each county of the state, and fixed the annual salary of such official for each of the counties.

At its session in 1867 (Stats. 1867, c. 54, p. 96), the legislature amended the act of 1865 so as to change the salary of some of the district attorneys, to take effect during their terms.

Many amendments, changing the salaries of county officials, during their terms, have been made by the legislature from that time to this, and particular attention may be directed to the Statutes of 1913, c. 45, Stats. 1917, c. 161, and Stats. 1929, cc. 142 and 146, increasing the salaries of certain officers of Elko County during their terms of office.

The conclusion of this court as expressed by HAWLEY, C.J., in State v. Glenn, 18 Nev. 34, 1 P. 186, is not only appropriate, but controlling upon the question, in view of the action of the legislature in 1867 changing the salary of certain district attorneys during their terms. The court in that case points out that in the legislatures of 1866, 1873, 1879, and 1881 were men who were members of the constitutional convention, and that their construction of the constitution was entitled to great deference. The court, in the opinion mentioned, pointed out that the construction by the legislature had been acquiesced in for nineteen years. The construction of the constitutional provision in question by the legislature of 1867 has been acquiesced in for over sixty years.

To the same effect see Dwarris on Statutes (2d ed.) 1848, p. 652; Labadie v. Smith, 41 Okla. 779, 140 P. 427, 430; Logan v. Davis, 233 U.S. 613, 34 S. Ct. 685, 58 L. Ed. 1121; State v. Brodigan, 35 Nev. 39, 126 P. 680, 682; 6 R.C.L. p. 63.

It is a significant fact that in State ex rel. Scott v. Trousdale, 16 Nev. 357, a similar state of facts to those here presented was involved, yet no such point as that now made was urged or considered. It can be accounted for upon only one theory, and that is that no one considered it tenable.

The application is without merit.

The writ sought is denied.