Youngs v. Hall , 9 Nev. 212 ( 1874 )

By tbe Court,

Belknap, J.:

This is an application for a peremptory writ of mandamus requiring the treasurer of Esmeralda County to pay certain warrants drawn by its auditor in the years 1865, 1866 and 1867, out of the general fund of the county. At the time of the allowance of the indebtedness evidenced by these warrants it was payable out of the general fund, but payment was not made for want of funds. Subsequent legislation created a “ Redemption Fund ” for Esmeralda County and directed that all moneys should thereafter be paid into it, which theretofore bad been directed to be paid into the general fund. Certain county officers are authorized and required under specified conditions to invite and accept proposals for the surrender of outstanding warrants of indebtedness. Preference is directed to be given to the proposal that offers the largest amount of indebtedness for the least amount of money. Stats. 1867, 76; Stats. 1869, 58. The respondent justifies bis refusal under these laws. The petitioner contends that they are exposed to constitutional objection; first, because they are special, and local laws regulating county business, in violation of Art. 4, sec. 20 of the constitution; and, second, because they impair the obligation of contracts. The payment of the indebtedness of a county is a .part of the business of the county; and a law prescribing the manner in which that business shall be conducted is a regulation of its business. Assuming then, that these laws regulate county business, we are to ascertain whether they are special or local laws within the meaning of the constitution of this State.

Hirst. "Whatever definition may be given to the word “special” by lexicographers we must consider that it is employed in reference to statutes in the light of its received judicial construction. At common law statutes were classified as public or general, and private or special. 1. Bl. Com. 86. This was the principal classification of statutes, and the words “public or general” and “private or special ’’were used synonymously. “A general or public act,’-’ says Blackstone, “is an universal rule that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio without the statute being particularly pleaded or formally set forth by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns.” Book 1, 86. Mr. Sedgwick in his work upon statutory and constitutional law (p. 30) thus speaks of the division of statutes: “When we come to consider statutes not as to their origin, but with reference to their subject matter, we find the leading division to be into public or general and private or special. Public or general statutes are in England, those which relate to the kingdom at large. In this country they are those which relate to or bind all within the jurisdiction of the lawmaking power, limited as that power may be in its territorial operation or by constitutional restraints. Private or special statutes relate to certain individuals or particular classes of men.” In Smith’s Commentaries on statutes (sec. 802) Blackstone’s definition is adopted. That of Dwarris is of like effect: ‘ ‘ Public acts relate to the public at large, and private acts concern tbe particular interest or benefit of certain individuals, or of particular classes of men.” Again, “ a general or public act regards the whole community; special or private acts relate only to particular persons or to private concerns;” also, “general or public acts are to be noticed judicially without pleading, and special acts must be shown by pleading.” Potter’s Dwarris on Stats., pp. 53, 55. These illustrations from approved text writers we consider sufficient to establish the fact that “public or general” and “private or special ” as applied to statutes are convertible terms. See Clark v. City of Janesville, 10 Wis. 136. In distinguishing statutes the earlier decided cases in this country generally employ the words “public and private,” although “general and special” are frequently met with; and when the word special is used it is as much the antithesis of public as it is of general.

The question arose in New Hampshire whether a statute of that state regulating the mode of putting timber into the Connecticut river was a general law. The objection to the statute was that it did not embrace all rivers, but was confined to the Connecticut river. The court held that since the law extended to all persons it was a general law in relation to a particular place. Scott v. Willson, 3 N. H. 321. In Heridia v. Ayres the supreme judicial court of Massachusetts decided that an act regulating the pilotage of Boston harbor was a public act. The views of the court upon this point were thus expressed by Chief Justice Shaw: “The last objection is that the statute is a private act and ought to have been, recited in the declaration. Without going minutely into this subject, which sometimes involves distinctions of much nicety and difficulty, there is one consideration which renders it decisive that this is a public act, which is, that the first section in terms imposes a penalty upon every person who .shall violate its provisions. It is therefore binding upon every citizen of the commonwealth, and upon every stranger who, coming within its jurisdiction, owes a temporary allegiance and is bound by its laws.” 12 Pick. 334. In Pierce v. Kimball, 9 Greenl. 54, a statute forbidding the sale or purchase of lumber in Penobscot County not surveyed and marked in a particular manner was considered a public law. The court saw nothing in the act that was not intended as a public benefit, of which all of the citizens of the state as well as others might equally participate. In Burnham v. Webster the court was of opinion that a law regulating the taking of bass in Dunston river was a public law. Parsons, C. J., said: “It is obligatory on all the citizens, and they must notice it at their peril. We must, therefore, ex officio, take notice of it.” 5 Mass. 265.

The constitution of Indiana provides that special laws shall not be passed “ for the punishment of crimes and misdemeanors,” etc., and “regulating the practice in courts of justice;” and by statute the courts of common pleas are invested with original jurisdiction of all misdemeanors. An act was £>assed regulating the liquor traffic, declaring any infraction of the law a misdemeanor, and conferring concurrent original jurisdiction upon the circuit courts of cases prosecuted for its violation. It was objected that the act was special and, therefore, unconstitutional, because it conferred jurisdiction upon both courts to try offenses under this act only, without giving the like jurisdiction as to all other misdemeanors. Said the court: “ What is a special act? It is such as at common law the courts would not notice, unless it were pleaded and proved like any other fact. * * * * * The distinction between general and Special statutes was well known to the common law, though sometimes a question of great nicety, and it is in accordance with a well established principle to assume that the constitution in using the terms intended them to be understood in the sense which was at that time recognized by the courts. Now we apprehend that it will be impossible anywhere, to find a decision by any respectable court, to the effect that an act is required to be pleaded which confers jurisdiction for the punishment of a particular misdemeanor, in all cases, though the court thus empowered could not take cognizance of other misdemeanors.” Hingle v. The State, 24 Ind. 28. After-wards the same court resolved that an act of the legislature providing that judgments against railroad companies for stock killed should be enforced in a specified manner, different from .other judgments, was not a special act. Toledo, Logansport & Burlington Railway Co. v. Nordyke, 27 Ind. 95.

The question arose in Iowa whether a law was special which provided that “every railroad company shall be liable for all damages sustained by any person, including the employees of the company, in consequence of any neglect of the agents, or by any mismanagement of the engineer or other employees of the corporation, to any person sustaining such damage.” It was contended that the law was special because it did not impose the same liability upon stage companies, the proprietors of steamboats and other common carriers; to which the court replied: “These laws are general and uniform, not because they operate upon every person in the state, for they do not, but because every person who is brought within the relation and circumstances provided for, is affected by the law.” McAnnich v. M. & M. Co., 20 Iowa, 343. In the case of the U. S. Express Co. v. Elly son, 28 Iowa, 370, an act providing for the assessment of the property of express and telegraph companies in a particular manner was held to be a general law. Again, an act of the legislature establishing a court at the town of Mc-Gregor was adjudged a local but not a special act. Town of McGregor v. Baylies, 19 Iowa, 43. Under the Maryland constitution, prohibiting local and special legislation in certain cases, a law relating to roads in Baltimore County was declared to be a local but not a special law. The court considered that the special laws contemplated by the constitution were those that provide for individual cases. Webster v. County Comms., 29 Md. 516.

It is objected that the redemption acts are special, since they provide for the indebtedness of one county only; but under the decided cases it appears that a law operative alike upon all persons similarly situated is a general law. The recent case in 19th Iowa and that in 29th Md. supra, decided under similar constitutional clauses, show that a law to be general need not be applicable to all counties in the state. The statutes before us are applicable to all persons sustaining the relation of creditors to Esmeralda County, and thus meet the requirements of general, as contradistinguished from special laws. And see Clarke v. Irwin, 5 Nev. 111.

Second. In expounding a constitutional provision such construction should be employed as will prevent any clause, sentence or word from being superfluous, void or insignificant. Smith’s Com. Sec. 276. Applying this rule to a similar constitutional clause,, the court of appeals of New York said: “We judge that they (the constitution framers) employed the word private as applicable to persons only ; and the word local as applicable to territory only; but both as signifying a narrowing or restricting of purpose. ” 43 N. Y. 18. This language is as apposite to the words “ special and local ” in the Nevada constitution, as it is to the words “ private and local ” in the New York constitution. A law may be special and not local, or it may be local and not special. The adoption of this view is necessary to give full meaning and significance to the words special and local; otherwise the terms become convertible, and the word local is unmeaning and useless in the constitution. The classification of statutes as local is of late origin and not mentioned by text writers, who designated laws restricted to particular localities as private or special. The subject, however, has been frequently discussed by the courts of New York under the following constitutional clause: ‘ ‘ No private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” N. Y. Const., Art. 3, Sec. 16. Unaided by the books, the courts resorted to the meaning with which the word local was charged by the constitutional convention and the definition given it by lexicographers. Burrill defines it as follows: “Eelating to place; belonging or confined to a particular place; distinguished from general, personal or transitory.” Adopting this definition a statute relating to the city of Rochester was declared a local act. In pronouncing the decision the court said: ‘ ‘ This act is purely local in its application. It has no force beyond a particular city or county, and is, therefore, confined to a particular locality. It is not general and has no application except to the common council of a particular city.” People v. Hill, 35 N. Y. 449. And afterwards, an act amending the charter of the city of New York, enabling the board of supervisors to raise money by taxation, was adjudged a local law because it had no force outside of the territory embraced in the corporation, nor any possible effect upon property not within the corporate limits, or upon any person not for the time being within such limits. People v. O’Brien, 38 N. Y. 193. The court of appeals of Maryland, after ascertaining the special laws contemplated by their constitution, considered that local laws were applicable to all persons, but distinguished from general laws because confined in their operation to certain prescribed or defined territorial limits. 29 Md. supra. See also People v. Supervisors, etc., 43 N. Y. 10; Huber v. People, 49 N. Y. 132.

The laws under consideration are not restricted by geographical lines; they have force without as well as within the boundaries of Esmeralda County. They provide as much for the relief of the creditors of the county as for the county itself; and are as applicable to the creditor who resides elsewhere in the State, or without it, as they are to the creditor resident in Esmeralda County. They embrace and operate uniformly upon all persons holding a certain species of property, irrespective of locality. We cannot, therefore, consider them local laws. It is true that but one locality in the State can have the advantage of these particular -laws. Their purpose is local, but a law having a local purpose is not necessarily a local law. Should the legislature appropriate funds of the State for a local improvement, as a bridge over a particular river, the law would be local in its purpose, but not a local law. This distmction is recognized in the constitution of the State of New York, which provides, in addition to art. 3, sec. 16, already quoted, that “the assent of two-thirds of the members of each branch of the legislature shall be requisite to every bill appropriating the public moneys or property for local or private purposes.” Art. 1, Sec. 9.

Third. The remaining objection is that the redemption acts impair the obligation of Contracts. The petitioner has not and never had any security for the performance of the county’s contract, but the good faith of the State. The legislature has permitted suits to be brought against counties, but has not provided for the enforcement of executions. The only effect of a judgment is to convert a disputed into a liquidated demand, and the creditor must still rely upon the revenue for payment. It is within the legitimate power of the legislature to raise revenue by taxation and to designate the purpose to which the funds shall be applied. In the exercise of this authority the legislature has directed that moneys which would otherwise have been paid into the general fund shall go into the redemption fund, to be from thence disbursed in a specified manner. The revenue is controlled by the legislature. It cannot be coerced to enact revenue laws, and has power to repeal laws for its collection and thus defeat the payment of the creditors of the State or counties. The good faith of the State is the only reliance of its creditors. It should be added that the legislative control of the revenue does not extend to depriving the creditor of funds raised for the payment of his demand, to which he has a vested right. Sharp v. Contra Costa County, 34 Cal. 284; Rose v. Estudillo, 39 Cal. 270; McCauley v. Brooks, 16 Cal. 11.

The application for a mandamus is denied.