Ex Parte McMahon , 26 Nev. 243 ( 1901 )

The facts sufficiently appear in the opinion. The petitioner was convicted in the justice's court of Ormsby county, Nevada, of violating Section 5 of the act protecting wild game (Stats. 1901, p. 121), and sentenced to pay a fine of $25, and in default to be confined in the county jail at the rate of one day for each $2 thereof until paid.

By the sentence one-half of the fine was ordered paid to one Robinson, the informer.

The petitioner brings habeas corpus for his discharge from the custody of the Sheriff of Ormsby county.

He contends that the act under which he was convicted is unconstitutional, and points out many provisions which he claims contravene our constitution.

Many of the points made against the law are not involved in the case, and it is only necessary to consider the objection to Section 19, under which authority is given for the judgment directing that one-half of the fine be paid the informer, and therefore directly involving the validity of the judgment under-which he is held.

Our constitution provides, among other matters (sec. 3, art. 1), that "all fines collected under the penal laws of the state * * * and all proceeds derived from any or all of said sources shall be and the same are hereby solemnly pledged for educational purposes and shall not be transferred to any other fund for other uses. * * *"

The language used is plain, clear, and unambiguous, and does not require construction, and it seems to us that said Section 19 of the act, supra, clearly contravenes this constitutional provision.

The case decided by the Supreme Court of Wisconsin (State v. De Lano, 80 Wis. 259), cited in support of the constitutionality of this section of our statute, was based upon a constitutional provision very different from ours, and is therefore easily distinguished.

While it is true the language of the constitution of Virginia is similar to the language used in our constitution, we cannot adopt the construction placed by the supreme court of that state in the case of SouthernExp. Co. v. Com., 92 Va. 59. So to do would result in a construction both unwarranted and unwise, and might justify legislation which would impair our school fund. It also appears that much that was said by the court in the Virginia case was not necessary to a decision of the question involved, and is therefore mere dicta.

It appearing, therefore, that the section authorizing the judgment given in this particular case is unconstitutional, the judgment is therefore void, and an order will be made discharging the petitioner from custody.