State Ex Rel. Torreyson v. Grey ( 1893 )

This case turns upon a determination of the question whether the constitutional amendments proposed by the legislature of 1891 have been published in accordance with the requirements of section 1 of article 16 of the constitution of this state. No other point has been discussed or presented, and in view of the great importance of this matter we propose to consider it without raising any other question ourselves.

These amendments were proposed as joint resolutions of the two houses at the fifteenth session, and it is admitted were regularly entered upon the legislative journals, with the yeas and nays of those voting upon them, were properly referred to the succeeding legislature, and were published according to law in the printed journals and statutes of that session; but there has been no official publication in any other manner, and it is claimed that this publication is insufficient, under the constitution.

Section 1 of article 16 reads as follows: "Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the legislature next chosen as aforesaid such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shrill become a part of the constitution."

It must be admitted that this provision concerning publication is not self-executing, except, perhaps, in the sense that anything done contrary to its provisions would be null and void but it does not place the duty of making the publication upon any officer or board, nor does it prescribe what shall constitute the publication required. To this extent, at least, it must have been intended that the legislature proposing the amendments should exercise its discretion. If it be conceded that the provision means some kind of a publication extending through the three months preceding the election, as is contended by respondent's counsel, it does not follow that it must be made in a newspaper. A regular publication and distribution of the amendments during that time, either daily, weekly, or monthly, by the state printing office or other instrumentality, would comply with its language, and doubtless result in as wide a dissemination among the people of knowledge concerning the amendments as would their publication in any one newspaper. If we concede that the clause requires a publication in a newspaper, it is still for the legislature to say how often it must be published, and whether in one newspaper in the state, or one in each county, or more or less than those numbers. So, in any view, within lines more or less circumscribed, it is a matter for the legislature to deal with. I think it must also be admitted that the construction to be placed upon this language is to some extent a matter of doubt. Whether the publication in the journals and statutes is a compliance with its requirements is a question concerning which men may reasonably differ. This is shown by the fact that since the adoption of the constitution sixty-four amendments have been proposed by nine different legislatures, and no provision has ever been, made for any other publication than this. Some courts have held that similar language was satisfied by one publication made the necessary time before the event, and that such publication constituted a continuous publication for the required time. (Mayor, etc., v.Gear, 27 N. J. Law 265; opinion of Beck, J., inKoehler v. Hill, 60 Iowa 579.)

Heretofore in this state there has been no question made, either in the courts or before the people, that the publication in the journals and statutes was not sufficient; many able attorneys are now of the opinion that such publication is in strict accordance with the constitution, and that is the judgment of my honorable associate upon the bench. Chief Justice Murphy. Under these circumstances, it is safe to say that if such publication is not sufficient, there has been at least reasonable grounds for believing that it was. Such being the case, although if the question were now res integra, I should perhaps come to a different conclusion, I feel constrained to follow the practical construction that has been so long placed upon this clause. Since the adoption of the constitution, commencing within ten years thereafter, some sixty-four amendments have been proposed by the different legislatures. A large number of these have been agreed to by the succeeding legislatures, and submitted to the people; they have acted upon them, and some having received a majority of all the votes cast, have been incorporated into the fundamental law, and been recognized as apart of the constitution by the people, the legislatures and the courts The legislature of 1877 proposed what is now known as section 10 of article 11, prohibiting the use of public funds for sectarian purposes. It was agreed to by the legislature of 1879, and adopted by the people at the election of 1880.

In 1881 (Stat. 1881, p. 122) the legislature directed the payment by the state to the several orphan asylums therein of the sum of seventy-five dollars per annum for each orphan. Under this act the Nevada orphan asylum presented a claim for a sum of money, but the controller refused to draw a warrant for it, upon the ground that the act was in conflict with the section of the constitution just mentioned. In the case of State ex rel. Nevada Orphan Asylum v.Hallock, 16 Nev. 373, this contention was sustained, and the law declared unconstitutional by this court. The orphan asylum was there represented by as able counsel as were to be found in the state, including two who had ornamented the supreme bench, but no suggestion was made either by them or the court that the amendment had not been constitutionally adopted. Seven other amendments have also been made in the same manner, which are now recognized as being a part of the state constitution, and have been treated as such for years past by the legislature, the courts and the people. No argument has been made that the amendments could be valid if not published as required by the constitution, and doubtless under the decisions, particularly of this court (State v. Tufly, 19 New 391; State v. Davis, 20 Nev. 221), they would not be. I know of no principle upon which those amendments can be held to be a part of our constitution if the publication now under consideration is held insufficient.

All of these acts constitute such a practical construction of a doubtful clause of the constitution as should now, in my judgment, conclude the court from placing any other upon it. This principle is laid down by all the text writers and has often been recognized and adopted by the courts. Judge Cooley states it thus: "But where there has been a practical construction which has been acquiesced in for a considerable period, considerations in favor of adhering to this construction sometimes present themselves to the courts with a plausibility and force which it is not easy to resist. Indeed, where a particular construction has been generally accepted as correct, and especially when this has occurred contemporaneously with the adoption of the constitution, and by those who had opportunity to understand the intention of the instrument, it is not to be denied that a strong presumption exists that the construction rightly interprets the intention. And where this has been given by officers in the discharge of their official duty, and rights have accrued in reliance upon it, which would be divested by a decision that the construction was erroneous, the argumentab inconvenienti is sometimes allowed to have very great weight." (Cooley, Const. Lim. 82.)

In Endlich's Interp. Stat. Sec. 527, it is said: "The greatest deference is shown by the courts to the interpretation put upon the constitution by the legislature in the enactment of laws and other practical application of constitutional provision to the legislative business, when that interpretation has had the silent acquiescence of the people, including the legal profession and the judiciary, and especially when injurious results would follow the disturbing of it." Sutherland says: "A construction of a constitution, if nearly contemporaneous with its adoption, and followed and acquiesced in for a long period of years afterwards, is never to be lightly disregarded, and is often conclusive." (Stat. Const. Sec. 307.) "The uniform legislative interpretation of doubtful constitutional provisions, running through many years, and a similar construction of statutes, has great weight.' (Id. Sec. 311.) To the same effect are Sedgwick, Stat. Const, 412, and Story, Const. Secs. 404, 1093

In Bingham v. Miller, 17 Ohio, 415, the authority of the legislature to grant divorces came before the supreme court, and although the court was unhesitatingly of the opinion that the legislature had no constitutional right to grant them, yet the early assumption and long continued exercise by that body of the power to do so was held to have established their validity. A similar ruling was made in Cronise v. Cronise, 54 Pa. St. 260, where the court, speaking by Agnew, J., said: "I repeat a common thought when I say that a constitution is not to be interpreted as a private writing by rules of art which the law gives to ascertain its meaning, but is to be studied in the light of ordinary language, the circumstances attending its formation, and the construction placed upon it by the people whose bond it is. Judged by these tests, special divorce laws are legislative acts. * * * Communis errorfacit jus would be sufficient to support it, but it stands upon the higher ground of contemporaneous and continued construction by the people of their own instrument." So in Miuing Co. v. Seawell,11 Nev. 399, Hawley, C. J., delivering the opinion, said: "But in this connection it must, as we think, be admitted that although the action of the legislature is not final, its decision upon this point is to be treated by the courts with the consideration which is due to a co-ordinate department of the state government, and in case of a reasonable doubt as to the meaning of the words, the construction given to them by the legislature ought to prevail." The supreme court of Illinois, in considering the construction to be placed upon a constitutional provision, used this language: "Again this question is purely political. No private rights are involved. It is a rule of law, well established, that where questions involved are purely political, and depend upon the construction to be given to provisions of doubtful interpretation, the court will not only give great consideration to a construction given by the political departments of the state, but will generally follow such construction implicitly." (People v. La SalleCo., 100 Ill. 495.) The supreme court of the United States has given the principle the weighty sanction of their authority, by declaring that a contemporary exposition of the constitution, practiced and acquiesced in for only about twelve years, fixes its construction (Stuart v. Laird, 1 Cranch 299); and in pronouncing the practical construction of a statute to be the one that must be enforced, although clearly not authorized by the terms of the law itself. (McKeen v. Delancy's Lessee, 5 Cranch 22.)

It would be unprofitable to make further extracts from the decisions; suffice it to say that the cases wherein the doctrine has been recognized and applied are both numerous and well considered. (Mayor v. Board,15 Md. 458; Scanlan v. Childs, 33 Wis. 666;Johnson v. Railroad Co., 23 Ill. 202;Harrington v. Smith, 28 Wis. 43;Packard v. Richardson, 17 Mass. 144;Rogers v. Goodwin, 2 Mass. 477;Moers v. Reading, 21 Pa. St. 188;State Line, etc., R. Co.'s Appeal, 77 Pa. St. 429;Holmes v. Hunt, 122 Mass. 505, 516; Opinion of the Judges, 126 Mass. 594.)

Perhaps a word should be added in explanation of the language used in the opinion in State v. Davis,20 Nev. 220, to the effect that the amendments then under consideration had been published in a newspaper according to the requirements of the constitution. The point was not involved in that case. The record shows neither pleading nor proof concerning it, nor was it referred to in the briefs of counsel. The judges must have obtained the knowledge asserted by them extraneously. Inquiry at the bar, upon the argument here, developed the fact that while those amendments were pending they were published by a proprietor of a newspaper in Carson, who was of the opinion that they should be so published; but this was done without the sanction of any law, or the direction or order of any board or officer. This is probably what was referred to, but such an unauthorized publication could, of course, have no validity (Clark v. Janesville, 10 Wis. 136, 181), and amounted to no more than the publication that is always made by the newspapers of the state, as a matter of interest to their readers. This, consequently, is no variation of the constant practice to publish only in the journals and statutes, of which I have spoken.

While the principle of following a contemporaneous and practical construction of a statute or constitution should never be applied except in cases of reasonable doubt, and perhaps not where it is calculated to work wrong or injury to any class or interest, yet within these lines where it has been so uniformly followed, as has been the case here, and a different construction would be fraught with such serious consequences, it should be held to have fixed the meaning of the language, although without this it might be held to mean something different. For this reason I concur in the order directing the writ to issue.