State Ex Rel. Osburn v. Beck ( 1899 )

The facts sufficiently appear in the opinion. This is a proceeding by information, in the nature of aquo warranto, to determine the right of the respondents, composing the board of county commissioners of Washoe county, to manage the affairs and business of the town of Reno, which it appears they are now doing. The respondents demur to the information upon the ground that it does not state facts sufficient to constitute a cause of action.

An act entitled "An act to incorporate the town of Reno" was passed by the legislature (Stats. 1897, p. 50), by which act said town, with boundaries specified, was incorporated "on and after the second Monday in April, 1897, by the name and style of city of Reno." The corporate powers of the city were vested in a city council. On said last-named date the city government was organized, and thereafter the corporate powers were exercised by the city council. We find among the enrolled bills filed in the office of the secretary of state an act, duly signed by the proper officers of each house of the legislature, and approved by the governor, of date March 4, 1899, entitled "Substitute for senate bill No. 67 — An Act to disincorporate the city of Reno." (Stats. 1899, p. 84.) The body of the act is as follows:

"Section 1. An act entitled ``An act to incorporate the town of Reno,' approved March 8, 1897, is hereby repealed.

"Sec. 2. The land and territory now included in the city of Reno, with the boundaries as they now exist, shall be and constitute the town of Reno. All judicial proceedings by or against the city of Reno may be continued and prosecuted or defended by or against the town of Reno, and all ordinances now in force in the city of Reno shall continue in force in the town of Reno until changed as provided by law.

"Sec. 3. All claims or demands now due or owing, or which may hereafter become due or owing, from the city of Reno shall be valid claims or demands against the town of Reno, and all claims or demands against the town of Reno shall be presented to and allowed, audited and paid by the same officers, within the same time, and in the same manner as claims or demands against the county of Washoe are presented, allowed, audited and paid; and all money, property or effects of every kind and character now or hereafter possessed, belonging or owing to the city of Reno shall be immediately transferred and possessed, and belong to and be the money, property and effects of the town of Reno.

"Sec. 4. The board of commissioners of Washoe county, acting for the town of Reno, shall forthwith meet and levy taxes for the year 1899 for town purposes for the town of Reno, not exceeding the amount now authorized by law, and all levies of taxes made by the city council of the city of Reno for the year 1899 are hereby vacated and annulled.

"Sec. 5. All acts and parts of acts in conflict herewith are hereby repealed."

The respondents are charged with usurping the functions, powers, and duties of the city council of the city of Reno. The charge is based upon the theory and contention that the act disincorporating the city of Reno is unconstitutional and void. If this contention be not tenable, then there is no cause of complaint against the respondents. The contention of counsel for relator is, in substance: "(1) That the history of the bill, as disclosed by the memoranda indorsed on the back of the bill, and by the journals of the respective houses, affirmatively shows that the bill was attempted to be passed by both the assembly and the senate with all readings thereof had upon the same day, without any pretense of deeming it a case of emergency, and dispensing with the constitutional rule by a two-thirds vote or at all."

Counsel submit "that our supreme court cannot uphold the enactment of the bill in question without emasculating the requirements of section 18 of article IV of our organic law," which section provides: "Every bill shall be read by sections on three several days in each house, unless in case of emergency two-thirds of the house where such bill may be pending shall deem it expedient to dispense with this rule; but the reading of a bill by sections, on its final passage, shall, in no case be dispensed with, and the vote on the final passage of every bill or joint resolution shall be taken by yeas and nays, to be entered on the journal of each house; and a majority of all the members elected to each house shall be necessary to pass every bill or joint resolution, and all bills or joint resolutions so passed shall be signed by the presiding officers of the respective houses and by the secretary of the senate and clerk of the assembly."

Section 35 of article IV of the constitution provides: "Every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, which house shall cause such objections to be entered upon its journal and proceed to consider it," etc.

Upon the question as to how far courts must treat an enrolled bill, authenticated by the proper officers, as conclusive of the existence of the law, including the regularity and validity of its passage, there is great diversity of opinion found among the decisions of the courts of the several states where the question has been considered. There are numerous decisions holding to the effect that an enrolled bill, signed by the proper officers, and deposited with the secretary of state, must be accepted without question, by the courts, as conclusive evidence of the existence and contents, and as having been regularly enacted by the legislature.

There is another line of decisions, holding, substantially, that it is the duty of the court to determine, when the validity of an act of the legislature is brought in question before it, whether the legislature has, or not, complied with the constitutional provisions concerning the procedure to be followed in passing bills, and that for this purpose the court may go back of the enrolled bill, to see if the journals of both houses of the legislature show that the requirements of the constitution were obeyed in the passage of the act in question.

Counsel for relator rely upon this line of decisions. But we are of opinion that the great weight of the decided cases is against them, when the cases are considered with reference to the reasoning and logical arguments found in the opinions contained therein.

We do not consider it worth while to cite the many cases outside of the Nevada Reports which have adopted a rule contrary to that held by the courts on whose decisions the relator relies.

In Slate v. Swift, 10 Nev. 176, it is held: "Neither the journals kept by the legislature, nor the bill as originally introduced, nor the amendments attached to it, nor parol evidence, can be received in order to show that an act of the legislature, properly enrolled, authenticated, and deposited with the secretary of state, did not become a law." It was held further: "Where an act has been passed by the legislature, signed by the proper officers of each house, approved by the governor, and filed in the office of the secretary of state, it constitutes a record, which is conclusive evidence of the passage of the act as enrolled."

In State v. Glenn, 18 Nev. 34,1 P. 186, the court said: "This court will not look beyond the enrolled bill in order to ascertain the terms of a law. The fact that it is signed by the proper officers of each house, approved by the governor, and filed in the office of the secretary of state, is conclusive as to the passage of the act as enrolled, and is the only evidence thereof."

In State v. Nye, 23 Nev. 99, 42 P. 866, the court said that the memoranda made by the secretary of the senate and clerk of the assembly on the enrolled act are immaterial; that "they are not evidence of the existence or nonexistence of any matter material to be considered in this case. The constitution makes the signing of an enrolled bill by the presiding officers of the two houses, and by the secretary of the senate and clerk of the assembly, conclusive evidence of the passage by the legislature; and when passed, and approved by the governor, and filed in the office of the secretary of state, it constitutes a record which is conclusive evidence of the passage of the act as enrolled, and in accordance with the rules prescribed by the constitution relating to legislative procedure." In addition to the above cases, we simply note two important cases found among many other like cases in line with the Nevada decisions.

In Field v. Clark, 143 U.S. 649, 12 Sup. Ct. 495 — a case involving questions of the greatest magnitude, and elaborately argued by counsel of national reputation — the court, upon a thorough consideration of the case, an extended review of authorities, and giving the most cogent reasons therefor, held: "The signing by the speaker of the house of representatives and by the president of the senate, in open session, of an enrolled bill, is an official attestation by the two houses of such bill as one that has passed congress; and when the bill, thus attested, receives the approval of the president, and is deposited in the department of state according to law, its authentication as a bill that has passed congress is complete and unimpeachable."

In State v. Jones, 6 Wash. 452,34 P. 201, the court, in a clear and learned opinion, and fortified by the soundest reasoning, held: "An enrolled bill on file in the office of the secretary of state must be accepted without question by the courts as having been regularly enacted by the legislature." In the Jones case, above, the respondents' contention was that the act involved in the case was not passed in conformity to certain mandatory rules of procedure prescribed by the constitution.

The second contention is that the act is obnoxious to section 17, art. IV, of the constitution, which provides that "each law enacted by the legislature shall embrace but one subject and matter properly connected therewith, which subject shall be briefly expressed in the title." It is argued that the object of the act, as expressed by the title, was accomplished by the enactment of the first section, provided it was constitutionally passed, and that the additional sections are not germane to the subject of the act as expressed in the title. Upon the authorities above cited, section 1 was constitutionally passed. Then the object of the act, the disincorporation of the town of Reno, was affected, and we have a complete act, independent of the additional sections.

It is contended that the act is special legislation, and therefore unconstitutional, in that section 2 establishes the boundaries of the disincorporated town, "when the general act for the government of unincorporated and disincorporated towns provides that the board of county commissioners shall fix such boundaries," and in that "it provides that suits shall be continued by or against the town of Reno, while section 1 of said general act provides that all suits shall be by or against the board of county commissioners acting for the use and benefit of the inhabitants of the town." So far as fixing the boundaries is concerned, if they can be fixed only by the board of county commissioners, then said provision of section 2 is simply useless, and not essential to the validity or efficiency of the provision disincorporating the town. As to the provisions continuing suits by or against the town, there is nothing therein prohibiting such suits being continued "by or against the board of county commissioners acting for the use and benefit of the inhabitants of the town," by proper substitution.

It is contended that the act is special legislation, unconstitutional and void, in that section 3 provides that the claims and demands named therein against the town of Reno shall be presented, allowed, audited, and paid by the same officers, within the same time, and in the same manner as claims or demands against the county of Washoe are presented, allowed, audited, and paid.

The particular contention is that the general act for the government of unincorporated and disincorporated towns does not limit the time in which claims or demands may be presented after they become due, while the time for presenting claims against the county is limited to six months after becoming due, and that, therefore, the act is special, as it limits said time, while the said general act does not, said time being limited only by the general statute of limitations, under which the limitation for the presentation of claims against towns is extended two years, instead of six months, as in case of claims against the county; and, further, that under said general town government act the county auditor is not vested with authority to audit claims that have been allowed by the board of county commissioners against the town, and that the act in question for this reason is special and unconstitutional, and unconstitutional for the further reason that section 3 impairs the obligation of contracts.

But it does not appear by the complaint, or otherwise, that the relator is a creditor of either the town or city of Reno; that he has any claim or demand against either, to be allowed by said board, or to be audited by said county auditor. Courts will not consider an objection made to the constitutionality of an act of the legislature by a party whose rights it does not affect, and who has, therefore, no interest in defeating it. It is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property, or his rights, that the objection to the unconstitutionality of a legislative act can be presented and sustained. (Cooley, Const. Lim. 196, 197.)

"Courts will not declare a statute void, as infringing vested rights, except at the instance of a party whose rights are violated or impaired." (In re Sticknoth'sEstate, 7 Nev. 223.)

The contention that the act is special legislation, and therefore void upon certain grounds specified, relating to other provisions of section 2 and 4, we think is without merit, and need not be further considered.

Finally, counsel for relator say, "the irresistible conclusion is that all after the first section constituted the controlling motive in passing the act," and upon this alleged conclusion they base an argument against the constitutionality of the act. But the legislature has declared that the disincorporation of the town of Reno was its object, its purpose, its controlling motive, in passing the act, which is emphasized by the first section repealing the act of 1897 incorporating the town. That act being repealed, and it not appearing that the respondents are exercising any powers not vested in them by law, the demurrer must be sustained, and the proceeding dismissed.

Judgment is given and ordered to be entered accordingly.