State Ex Rel. Fletcher v. Ruhe

The facts sufficiently appear in the opinion. This is an information in the nature of quo warranto for the purpose of determining the constitutionality of the act entitled "An act to incorporate the Town of Reno" (Stats. 1897, p. 50), under which respondents hold office.

Respondents demurred to the information upon the ground that it did not state facts sufficient to constitute a cause of action.

It is first claimed in behalf of relator that the act is violative of article IV, section 17 of the constitution, which requires "that each law enacted by the legislature shall embrace but one subject and the matter properly connected therewith, which subject shall be briefly expressed in the title." * * * It is said that the act not only embraces the incorporation of the City of Reno, but three or four other independent subjects not indicated by the title.

This restriction upon the legislature was considered in the case of State v. Silver, 9 Nev. 231. It was there said that the design of the constitution, in requiring that each enactment should contain but one subject and matter properly connected therewith, was to prevent improper combinations to secure the passage of laws having no necessary or proper relation, and which as independent measures could not be carried, and also that neither the members of the legislature nor the public should be misled by the title.

"The general purpose of these provisions is accomplished when a law has but one general object which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of this general object to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible." (Cooley, Const. Lim. 143.)

Accordingly, this court held that under an act entitled "An act to provide for the taking care of the insane of the State of Nevada," properly embraced not only the construction of an asylum, but the proceedings by which the money for its cost should be taken from the state school fund and in its place state bonds deposited, and a levy of a tax for the redemption of the bonds and interest. In that case it was said that the different steps to be accomplished are not different subjects, but minor parts of the same general subject, to wit: the care of the insane.

In Harris v. The People, the constitutionality of an act entitled "An act to revise the charter of Long Island City" was attacked upon the ground that it contained more than one subject and that the title did not express the subject of the creation of the court of Long Island City, whose jurisdiction was assailed. The court said: "We think it plain that an act creating a municipality, and giving to it the necessary legislative, taxing, judicial, and police powers, embraces but one subject. Every municipality, to be of benefit to its citizens, and to be efficient in its action, must have such powers to a greater or less extent. Any act which sets out to erect a municipality must give to it these powers or it is passed in vain. It follows, then, that the separate provisions of the act defining and granting these powers are but parts of a whole and essential to make a whole. The whole thing, the creation of the municipality, is the subject of the act, and the parts of it are not separate subjects, but separate parts of one subject. So that the act under which Long Island City was first incorporated embraced but one subject, to wit: the erection of that municipality. The title of that act, ``An act to incorporate Long Island City,' expressed clearly that subject." (59 N.Y. 601.)

The city council is authorized under certain restrictions to borrow a sum of money not to exceed $150,000 for the purpose of securing a supply of water for the city and the erection of water works, and also to establish an electric light plant or gas works for lighting the streets and houses. The charter provides that these matters shall be submitted to the electors of the city, and if a majority of the votes cast by the duly qualified electors residing within the corporate limits of the City of Reno, as shown by the last preceding official registration, are in the affirmative, the city council may borrow the money or issue the proposed bonds, etc. Accordingly certain questions framed to meet the issues were submitted to the people for their action. It is contended that the submission of these questions was unconstitutional. Section 1 of article II of the constitution provides that "Every male citizen of the United States (not laboring under the disabilities named in this constitution), of the age of twenty-one years and upwards, who shall have actually, and not constructively, resided in the state six months, and in the district or county thirty days next preceding any election, shall be entitled to vote for all officers that now are or hereafter may be elected by the people and upon all questions submitted to the electors at such election."

It is said that by adopting the last official registration as the test for the qualification of electors, those who had become electors between the general election of 1896 and the municipal election of October 7, 1897, were disfranchised because their names could not be on the registry list.

A question of the same nature arose in Weil v. Calhoun, 25 Fed. 865. It was charged among other things that the registration act made no provision for the registry of persons who, though not entitled to vote when the books were closed, yet became so during the ten days intervening after the closing of the books and the registration. After considering the objections made to the registry law, the court said: "It seems to me that such objections to the registration ought, for reasons of public policy, to conform to the rules applicable to objections to election not held in strict conformity to law, to wit: it should be made affirmatively to appear that the result would have been different had the illegality not existed. Perhaps the voter might have private redress for the wrong done him in refusing his vote, but that is a very different thing from making an election void on a mere abstraction not affecting the result."

In the American and English Encyclopedia of Law, vol. 6, p. 289, it is said: "If a registry is had under an unconstitutional law and an election held upon the basis of such registry, there can be little, if any, doubt that the election will be held valid unless it is shown that a sufficient number of legal voters to have changed the result were prevented by such law from casting their ballot."

Again, it is claimed that none of the questions submitted to the voters were carried by the vote of the majority of the 1303 electors of the City of Reno, as shown by the official registration of 1896. The portion of the statute affecting the subject is as follows:

"Sec. 34. * * * If a majority of the votes cast of the duly qualified electors residing within the corporate limits of the City of Reno as shown by the last preceding official registration are in the affirmative, the city council may borrow the money or issue the proposed bonds in such denominations or sums that they may deem proper and sell the same." * * *

Under relator's interpretation the statute would read thus: "If a majority of the votes of duly qualified electors * * * are in the affirmative, * * * the city council may borrow the money." * * * It will be observed that this interpretation ignores the word "cast" in the statute. The object of the interpretation of statutes is to ascertain and enforce the intention of the legislature.

"No sentence, clause, or word should be construed as unmeaning and surplusage if a construction can be found legitimately which will give force and preserve all the words of the statute." "It is a canon of construction that, if it be possible, effect must be given to every word of an act of parliament." * * * (Black on Int. of Laws, 83.)

It is a matter of common experience that special elections submitting issues to be voted for by the electors of a town or city do not bring out a full vote. In the present case the vote did not reach forty-two per cent of the registered votes at the general election of 1896. It may be that the legislature, aided by the experience of similar elections, intended that this election should be determined by a majority of the votes cast, and not by a majority of all the electors of the City of Reno. Whether this was the reason or not for the use of the word "cast" in the sentence, the fact remains that it is superfluous under any other view. Under the rule that no word should be rejected as superfluous if it can be avoided, we conclude that a majority of the votes cast, and not a majority of the votes of the electors of the City of Reno as shown by the official registration of 1896, could rightfully determine the questions presented.

It is objected that the provisions of section 12 of the act providing that the trial in all cases for the infraction of city ordinances of a police nature shall be summary in character before the police judge, without a jury, are in violation of the provisions of the constitution, which declare that the right of trial by jury shall be secured to all and remain inviolate forever. This constitutional provision has not been considered as extending the right of jury trial, but as confirming and securing it as it was understood at common law.

A jury cannot be claimed as of right in an equity case, or upon an issue of law, for that is a matter purely for the court. Sedgwick says that "extensive and summary police powers are constantly exercised in all of the states of the Union for the repression of breaches of the peace and petty offenses; and these statutes are not supposed to conflict with the constitutional provisions securing to the citizens a trial by jury." * * * (Sedg. St. Const. Law, p. 497.) See, also, Dillon on Mun. Corp. sec. 432;McGear v. Woodriff, 33 N. J. L. 217;Johnson v. Barkley, 1 Har. 1; Byers v. Commonwealth, 42 Penn. St. 89.

It is claimed that section 3 of the act, which provides that the members of the city council shall be owners of real estate in the city as a qualification of membership, is in violation of the constitution. We do not understand which particular provision of the constitution is relied upon, but we may say generally that there is nothing in the constitution upon the subject of the property qualifications of councilmen or other officers. The legislature, not being restricted, had the power to impose the qualification, and the provision, being reasonable and intended as a safeguard to the owners of property, should be enforced. (Mechem on Pub. Officers, sec. 81.)

It is also objected that section 34 of the act which provides that the city may borrow not to exceed $150,000, for the purpose of procuring water and the erection of water works, is unconstitutional as being contrary to section 8 of article VIII, which provides that the legislature shall provide for the organization of cities and towns by general laws and restrict the powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, except for procuring supplies of water. The fact appears to have been overlooked that the City of Reno was incorporated under a special law enacted in conformity with section 1 of article I, which authorizes the creation of municipal corporations by special enactment.

Objection is made that section 2 of the act divides the city into five wards, and it is claimed that such division ignores the provision of the constitution, which requires that representation shall be apportioned according to population (Art. I, sec. 13).

Waiving the question whether the provision is applicable to municipalities, it is sufficient answer to say that it is impracticable to apportion representation by any other method than by geographical lines, and it will be presumed that the lines have been fixed in conformity with the requirements of the constitution in the absence of a showing to the contrary.

The objections that the statute names therein the first members of the city council; that it constitutes county officers ex officio city officers; that it diverts fines from the school fund; that it is a special law, are all answered adversely to relator's contention inState v. Rosenstock, 11 Nev. 128.

A judgment will be entered dismissing the information and taxing the costs to relator.