King v. Board of Regents of the University of Nevada ( 1948 )

I regret that I am unable to concur in the conclusion reached by the majority opinion. Mindful of, and giving consideration to judicial precedents established by this court in numerous decisions, and being guided by law as thus announced, I am obliged to record my dissent.

A careful reading of the legislative act, the subject matter of this litigation, convinces me that by its provisions there is created an advisory board denuded of any right to vote on university affairs and possessing only the right to give counsel and advice to elected regents. The provisions of the act creating the advisory board do not usurp or transgress any authority or power vested in the elected board, nor do they confer any such authority upon the advisory board. Its provisions expressly disavow such intention. Nowhere within the four corners of this statute is there any provision making it the duty of the elected board of regents to accept or be bound by the counsel and advice offered by the advisory board. They are at liberty to accept or reject it at their pleasure and discretion.

If, as the majority opinion concludes, and upon this point alone I concur, the advisory board has no vote, then the law as I construe its provisions does not make it the mandatory duty of the elected board to request advice or counsel from the advisory board, or if advice is offered, no legal mandate requires its acceptance. This being true, wherein does the act encroach upon the domain vested in the elected board?

In my opinion, therefore, with this premise established as a correct construction of the act, how can one cogently conclude that any provision of the act "changes, alters or modifies" the constitutional powers and functions of the elected board of regents?

I am not unmindful that under the act the advisory board is "entitled to all rights and privileges of the elected board." Such rights and privileges are restricted, however, to acting in an advisory capacity. The act by its provisions plainly indicates what the legislature had in mind in drafting and enacting this law, to wit: furnishing the University of Nevada, by way of counsel and advice, the assistance obtainable from residents of the state "who have distinguished themselves in the business, professional, and cultural life of the State and nation." All residents of Nevada are justly proud of their University. It is the earnest desire of all citizens that it continue to maintain its high standard among the colleges and universities of the United States. The people of Nevada, through its legislature apparently felt the need of furnishing to the elected regents a source of knowledge and experience that would be available, and at their command if desired. To supply such assistance the instant act became a law.

That the board thus created is purely advisory to elected regents is clearly demonstrated by the provisions of the act. The title of the act indicates that the proposed legislation "creates an advisory board of regents."

The "whereas" clearly discloses in the qualifications required by those to be appointed, that the board thus to be created is purely advisory. Observe the language used, after stating the type of resident to be appointed, it concludes, "and whosecounsel may be sought," by the elected board of regents; not whose counsel shall be offered, not whose counsel must be followed, but whose counselmay be sought by the elected board of regents. (Emphasis added.)

Section 1 of the act creates the board and designates the board thus created "the board of advisory regents."

Section 2 prescribes the qualifications and manner of selection of members.

Section 3 enumerates the duties and specifically restricts the voting right of members of the advisory board. It is the provisions of this section, upon which is bottomed the legal conclusion that the legislature has thereby encroached upon the constitutional provisions vesting power in the elected board of regents. This because it is asserted the section grants to the advisory board "all the rights and privileges * * * of the elected regents."

To reach this pronouncement, emphasis is placed only on the isolated phrases "all the rights and privileges," and the related clauses are excluded. It is a cardinal rule of statutory construction that "courts have no authority to eliminate language used in a statute * * * but are bound to give effect, where possible, to all the language used." Heywood v. Nye County,36 Nev. 568, 137 P. 515.

Section 3 of the act as well as the title, the whereas, and other sections must be considered together to correctly gather the legislative intent.

Section 3 reads:

"The advisory board of regents so appointed shall act in an advisory capacity to the elected board of regents and shall be entitled to all the rights and privileges, including travel and incidental expenses, of the elected regents, but shall not have a determining vote on any matter properly under the control of the elected board of regents."

Section 4 reads:

"No provision of this act shall be construed to be in derogation of the constitutional authority of the elected board of regents to administer the affairs of the university."

By section 3 we have a statement in no ambiguous language that the advisory board "shall act in an advisory capacity to the elected board." Giving effect to this language which immediately precedes the words "shall be entitled to all rights and privileges" and being mindful of the court's duty to give the statute a fair and liberal construction, I am justified in concluding, that when their action in the first instance is restricted to acting in an "advisory capacity," that it is in such capacity they "shall be entitled to all rights and privileges" of elected regents.

The construction placed upon this section by the majority opinion recognizes that by its wording the board is to act in an advisory capacity, yet, by the language "shall be entitled to all rights and privileges" the legislature thereby changed the status of board members from "advisory capacity" to "regency" capacity. This construction would make the title of the act not sufficiently broad to give notice of the purpose of the proposed legislation and embracing matters not covered by the title, in violation of art. IV, sec. 17 of the constitution of the State of Nevada. The title of the act refers only to creating an "advisory board" and not a board with powers to actually function as regents, as determined by the majority opinion.

We have then a legislative act susceptible of two divergent constructions, one which invalidates the law; the other sustains it as valid. Under these conditions I apply the recognized rule of statutory construction, namely:

"In construing a statute to give effect to the intent or purpose of the legislature, the object of the statute must be kept in mind, and such construction placed upon it as will if possible, effect its purpose, and render it valid. * * * To this end it should be given a reasonable or liberal construction; and if susceptible of more than one construction, it must be given that which will best effect its purpose rather than one which would defeat it, even though such construction is not within the strict literal interpretation of the statute." 59 C.J. sec. 571, page 961, citing State v. Martin,31 Nev. 493, 103 P. 840; and State v. Eggers, 36 Nev. 372,136 P. 100.

It is also to be noted that this court in construing the act must examine the legislative intent in enacting the law. "The legislative intent in enacting statutes must control, and rules of construction are but aids in ascertaining such intent." State v. Ducker, 35 Nev. 214, 127 P. 990. The wording of the act establishes beyond cavil that the intent was to have available to the elected board of regents a committee, or board, members who have "distinguished themselves in the business, professional, and cultural life and therefore possessing the necessary qualifications to give counsel to the regents if same was sought."

The legislature, realizing the possible limitations on their legal right to act under the constitution, and out of an abundance of caution, added section 4 to the act. The wording of this section may be inapt and could have been more clearly and definitely stated, yet it is the court's duty to give to it the meaning intended, if the same can be ascertained to a reasonable certainty. I am impressed with the conclusion that section 4 contains a declaration by the legislature that in enacting the law and creating the advisory board, no constitutional authority of the elected board of regents was thereby intended to be, or was in any manner or to any degree invaded or impaired. That therefore in any court proceeding that might be instituted challenging its legality, the legislature declared by section 4 the intent to confine the activities of the created board within constitutional limits. The mere fact the board created under the law would have the right to attend all meetings and participate in all discussions, and this perchance in a "loud voice," or that the members might be increased to twenty or thirty, presents no constitutional objection, but purely one of legislative policy about which this court is not concerned. That the legislature might in future deem it advisable to provide an advisory board for the governor or other state officer is beside the question.

"The policy, wisdom, or expediency of a law is within the exclusive theater of legislative action. It is a forbidden sphere for the judiciary, which courts cannot invade, even under pressure of constant importunity." In re McKay's Estate, 43 Nev. 114,184 P. 305, 309.

Again in the case of Magee v. Whitacre, 60 Nev. 202, 208,96 P.2d 201, 106 P.2d 751, it is noted; "[The Supreme Court is] not authorized to enter into a determination of the constitutionality of a statute on a supposed or hypothetical case which might arise thereunder."

As I view this act I am unable to conclude that its provisions violate art. XI, sec. 4, or art. XI, sec. 7 of the constitution. Both sections recognize and direct legislative activity in connection with the duties of the board of regents. The constitutional provisions are not self-executing. For the last sixty years the legislature, acting under the constitutional mandate has enacted law regulating the details of control of the university by the board of regents.

By statutes 1887, c. 37, p. 42, the legislature defined the powers and duties of the board of regents. These included, among other things, the appointment of a president of the university. However, this power was expressly limited by prescribing the qualifications of the appointee. Section 12 of the act provides that all expenses incurred shall be passed upon by the state board of examiners. By statute 1913, c. 259, p. 402, the legislature again regulated the affairs of the university.

Statutes 1945 change the qualifications required of an appointee to the post of president, and made other changes authorizing regents to sell or lease university property, subject to approval of the governor (who is not a regent). Chapter 167, Statutes 1945, the legislature asserted authority over the regents as to free tuitions. By statutes approved March 5, 1869, page 134, the legislature prohibited members of the board from being interested in contracts or expenditures created by the board. Statutes 1915, c. 204, p. 314, empowered the board of regents to establish emeritus positions at the university. Statutes 1915, c. 9, p. 10, authorized the regents to receive grants from the United States.

Statutes 1895, c. 43, p. 40, created an honorary board of visitors of Nevada state university. This board was required to meet annually at the university, inspect the buildings and equipment, inquire into the actual state of the discipline, instruction, police administration, and report same to the governor.

By sec. 7736, N.C.L. 1929, the state superintendent of public instruction must visit the university every three months, inquire into its condition and management and report to the board of regents, with such suggestions as he may deem proper.

Are not these several legislative enactments but legislative construction of the constitutional mandate given to them under art. XI, sec. 4, and art. XI, sec. 7? And as a practical construction are they to be set aside unless clearly incompatible with the provisions thereof?

"Where a doubt may exist as to the proper construction to be placed on a constitutional or statutory provision, courts will give weight to the construction placed thereon by other co-ordinate branches of government." State v. Brodigan, 35 Nev. 35,126 P. 680, 682; Seaborn v. Wingfield, 56 Nev. 260,48 P.2d 881.

Again in the case of United States v. Curtis-Wright Export Corporation, 299 U.S. 304, 328, 57 S. Ct. 216, 225, 81 L. Ed. 255 the supreme court stated: "In Field v. Clark, 143 U.S. 649, 691,12 S. Ct. 495, 504, 36 L. Ed. 294, this court declared that `thepractical construction of the constitution, as given by so many acts of congress, andembracing almost the entire period of our national existence,should not be overruled, unless upon a conviction that suchlegislation was clearly incompatible with the supreme law of theland.' The rule is one which has been stated and applied many times by this court. As examples, see Ames v. State of Kansas,111 U.S. 449, 469, 4 S. Ct. 437, 28 L. Ed. 482; McCullouch v. Maryland, 4 Wheat. 316, 401, 4 L. Ed. 579; Downes v. Bidwell,182 U.S. 244, 286, 21 S. Ct. 770, 45 L. Ed. 1088."

These several statutes by which the legislature has construed and enacted laws under the constitutional mandate pertaining to the university and board of regents have never been challenged, but acquiesced in by all. The legislative act under consideration no more offends the constitution, than the act creating a board of visitors for the university, or the act directing the superintendent of public instruction to visit the university and submit recommendations to the board of regents.

While the validity of these several statutes has not been challenged by court action, their provisions have been obeyed by those required to function thereunder for more than sixty years. A strict construction of the applicable constitutional provisions and the legislative authority thereby conferred, would lead to serious consequences.

The language of this court in the case of Worthington v. District Court, 37 Nev. 212, 142 P. 230, L.R.A. 1916A, 696, Ann.Cas. 1916E, 1097, seems appropriate to this subject matter. The court stated:

"That a statute has for years been enforced by the courts, without its constitutionality being challenged, may be considered as a recognition of its constitutionality, and courts will seldom entertain questions of the constitutionality of a statute recognized as valid in the jurisdiction of rights, and when the invalidity of the statute would lead to serious consequences."

For the reasons above set forth it is my opinion that the judgment of the lower court dismissing the action should be affirmed. In reaching this conclusion I am actuated for the above reasons and by the rule of statutory construction announced and adhered to by this court on many occasions, to-wit:

"Every presumption is in favor of the validity of a statute, and a statute will always be sustained if there be any reasonable doubt of its unconstitutionality." State v. Lincoln County,60 Nev. 401, 111 P.2d 528.