State v. Commrs. Washoe Co.

By following the logical course of reasoning adopted by this court heretofore in cases similar to this, and adhering to the well-established rules of interpretation for considering the question of the constitutionality of statutes, a proper solution of the matters in hand may be arrived at. In order to keep the subjects under consideration more clearly in view, the title of the amendatory act and the provisions of the act are here given: "An act to amend an act entitled `An act for the purchase and preservation of public newspapers, printed and published in the several counties in this state.' Approved February 1, 1865. Section 1. * * * The recorders of the several counties of this state are hereby authorized and required to subscribe for one newspaper printed and published at the county seat of each county of the state, and the board of county commissioners of the respective counties shall designate the paper so subscribed for as the official paper of the county wherein all legal advertising and printing shall be done; provided, the rate for such work shall not exceed the rate now established by law. No paper shall be subscribed for and designated unless it shall have been established for at least one year, and is printed and published in its entirety at its place of establishment."

It is claimed that this act is in conflict with the provisions of section 17, article IV., of the constitution, which are as follows: "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 there is more than one subject embraced in the act, to wit: (1) The subject of the purchase and preservation of public newspapers; (2) the subject of legal advertising and printing — and that the the second subject is not matter properly connected with the first subject which is expressed in the title. This is, as I understand it, the substance of the argument, and the essence of the contention raised against the validity of the law.

Before proceeding to the specific consideration of the act in question, and its title, it may be well to call attention to the substance of certain rules adopted and recognized by the courts in passing upon such questions as are involved in this case, and to other preliminary matters:

First — The presumption is that the legislature had an honest intent and had in view a meritorious object in passing the act.

Second — It will be presumed that the members had average intelligence, and understood the object of the act and the object expressed in the title.

Third — No legislative act will be annulled by the courts unless it clearly appears to be in conflict with the constitution; that every reasonable construction and intendment will be indulged to harmonize the two instruments, and, if there be a rational doubt as to the invalidity of the act, the doubt will be solved in favor of its validity.

Fourth — If the matters in the act are not independent, separate, incongruous, and disconnected matters from, and bear no proper connection with or relation to, the general subject of the act as indicated, or briefly expressed in the title, the act will stand the constitutional test of said section 17 of article IV., no difference how many separate matters it may contain. This latter rule is illustrated in the case of State v. Board of County Comrs.,17 Nev. 101, in which the court, by way of illustration, say: "An act concerning crimes and punishments is not unconstitutional for the reason that it treats of different crimes. Escape, larceny, robbery, and murder are different crimes; but they are upon the same subject, viz., crimes."

In Ex parte Livingston, 20 Nev. 287, in illustration of this rule, the court said: "Take, for example, the general appropriation act. Every section, in fact, most every line, in a strict sense, refers to a different subject, as different appropriations and for different purposes. * * * It is not designed to require the body of the act to be mere repetition of the title. Neither is it intended to prevent including in the bill such means as are reasonably adapted to secure the object indicated by the title. It is intended to prevent legislators from being entrapped into the careless passage of bills on matters foreign to the ostensible purpose of the statute as entitled."

In case of State v. Board of Comrs. of HumboldtCo., 21 Nev. 235, the title of the act is, "An act fixing the salaries of the officers of Humboldt county and consolidating certain offices." It was the contention on the part of the relator "that both the act and the title embrace more than one subject, to wit, the subject of salaries and the subject of consolidating offices, and is therefore in contravention of section 17 of article IV. of the constitution of Nevada." The court properly held that the act was valid. The rules of interpretation are so concisely stated, and the logical line of argument so clear, in the opinion, which is so pertinent and applicable to the case at bar, that large quotations are here given and adopted as a part of this opinion. After specifying the objects of section 17, art. IV., of the constitution, the court said: "This, then, being the mischief against which this clause of the constitution is directed, it should be so construed as to correct the evil, but at the same time not to needlessly thwart honest efforts at legislation. There is scarcely any subject of legislation that cannot be divided and subdivided into various heads, each of which might be made the basis of a separate act, and in which the connection between them may be made a matter of controversy. The reports show that seldom, indeed, has the validity of a law come seriously in question without its being claimed that it was in conflict with this clause of the constitution. This shows how necessary it is to adopt liberal rules of construction in order to sustain laws not coining within the spirit and meaning of the constitutional prohibition. If the provisions of a statute all relate directly or indirectly to the subject expressed in the title, it is permissible to unite them in the same act." Citing Coal Iron Works Co. v. Brown, 13 Bush. 685; Phillips v. Bridge Co., 2 Metc. (Ky.) 222; State v. Kinsella, 14 Minn. 524 (Gill. 395). "The insertion in a law of matters which may not be verbally indicated by the title, if suggested by it or connected with it, or proper to the fuller accomplishment of the object so indicated, is held to be in accordance with its spirit. All presumptions are in favor of the constitutionality of a statute, and it will be held valid until the mind of the court is clearly convinced to the contrary." Citing Evans v. Job,8 Nev. 322; Railroad Co. v. Morris,65 Ala. 193. "In all cases of doubt, every possible presumption and intendment will be made in favor of the constitutionality of the act in question. The courts will only interfere in cases of clear and unquestioned violation of the fundamental law." Citing State v. Irwin,5 Nev. 120; People v. Parks, 58 Cal. 635. "The objections should be grave, and the conflict between the constitution and statute palpable, before the judiciary should disregard a legislative enactment upon the sole ground that it embraces more than one subject." Citing Montclair v. Ramsdell,107 U. S. 155; Suth. St. Const. sec. 82. "It is only the subject of the act which must be stated in the title; matters properly connected with the subject need not be mentioned." Citing Humboldt Co. v. ChurchillCo., 6 Nev. 30. "If they are mentioned it simply makes the title unnecessarily prolix."

If the legislature that passed the original act in 1865 could have, under the title given, properly incorporated the provisions contained in the act of 1895, certainly no one will deny that it was competent for the legislature of 1895 to do so, unless the title of the late act is restrictive, and this precludes it; that is, unless it specifies some particular part of the original act as the object of amendment, as was done in the title of the act considered inEx parte Hewlett, 22 Nev. 333. But the title of the act of 1895 is not restrictive. It does not specify any particular in which it is proposed to amend the old act, nor does not limit the amendment to any particular matter. The whole scope of legislation is left open to such matter as would have been proper to enact by the former legislature.

In State v. Ah Sam, 15 Nev. 31, and in several other cases, the subject of an act and the object of an act are treated as synonymous terms by this court, and they will be so regarded in this opinion.

Now, bearing the foregoing rules of interpretation in mind, let the vital questions in this case be examined. The title of the old act is the substance of the title of the amendatory act.

What, then, is the subject of the act, or, in other words, what was the object the legislature had in view in passing it, and what object is indicated by its title, to wit, "An act for the purchase and preservation of public newspapers?"

What is a newspaper? "A newspaper is a sheet of paper printed and circulated, at short intervals, for conveying intelligence of passing events; a public print that circulates news, advertisements, proceedings of legislative bodies, public documents, and the like." (Webst. Dic.) This definition accords with the general understanding of the public. There could have been no disagreement among the members of the legislature, and no member could have been forgetful as to what newspapers are while reading the title or considering the bill. It is manifest that the object the legislature had in view in passing it (the original as well as the amendatory act) was not simply to preserve printed sheets of paper, but to preserve, in newspaper form, intelligence of passing events, for public use. To subserve this object there could not have been any legislation more appropriate than to provide for the purchase and preservation of newspapers — the instruments containing the intelligence desired to be preserved. And what more appropriate title than the one adopted — expressive of, and clearly indicating, the general object of the act — could have been devised?

The general object of the act being clear, and the title of the act clearly indicating the object, it seems to me that no room is left for the assumption that any member of the legislative body or any member of the general community might have been misled by the title. The general object of the act being to preserve intelligence of passing events in newspaper form, and the title of the act clearly indicating that object in specifically giving the object to be "for the purchase and preservation of public newspapers" — the very instruments containing such intelligence — it follows that the provision of the act requiring that "all legal advertising and printing shall be done" in these newspapers is not legislating upon a matter that is not germane to and properly connected with the general object of the act, as clearly indicated by the title. Legal advertising or printing is intelligence of one class of passing events. The legislature having exclusive control of legal advertising and printing, it certainly is matter properly connected with the subject or object above named to require that this class of intelligence or current news shall be preserved in manner and form as the other classes. This class is not only matter properly connected with the general subject, but is a part of the general intelligence of passing events, the preservation of which is the object of the act. If the object of the act and the object as expressed in the title can be reasonably construed in two ways, one militating against the constitutionality of the act and the other sustaining the law, it is imperatively required of the court to adopt the latter construction.

In State v. Ah Sam, 15 Nev. 27, the title of the amended act is "An act to regulate the sale or disposal of opium and to prohibit the keeping of places of resort for smoking or otherwise using opium." The act prohibits the sale of opium, unless upon the prescription of a physician, and in that case only allows druggists and apothecaries to sell it. It prohibits the keeping of places of resort for smoking opium, prohibits the leasing of houses for such purposes, and finally it prohibits all persons from resorting to places kept for such purposes, and provides severe penalties for resorting thereto. It will be observed that the subject of resorting to such places is not expressed in the title in terms. Ah Sam was convicted under this act, not for selling opium, not for keeping a place of resort for smoking it or otherwise using it, but for simply resorting to such a place. On appeal to this court his counsel claimed and urged that the act embraced two or more subjects: (1) The regulation of the sale of opium; (2) the prohibition of keeping places of resort for smoking opium; (3) makes it criminal for any one to resort to a place kept for smoking opium — and that the latter subject is not embraced in the title. The court held the act to be constitutional, and the conviction of Ah Sam proper. It said: "Clearly it does not embrace more than one subject, and if its title had been `An act for the suppression of opium dens' we think no one could be found to question its constitutionality. It is apparent that the legislature, in passing the act in question, had but one object in view,viz., the suppression of places commonly known as opium dens, and nothing is contained in the law that is not conducive to that end." So it may be said with equal force in this case, on the same line of argument, and by the same logical course of reasoning, that clearly the act does not embrace more than one subject, and if the title had been "An act to preserve intelligence of passing events or current news contained in newspapers" we think no one would have been found to question its constitutionality. It is apparent that the legislature in passing the act in question had but one object in view, viz., to preserve intelligence of passing events or current news, found in newspapers, and nothing is contained in the law that is not conducive to that end. The court in that case further said: "The title of the act does not profess in explicit terms to aim at the suppression of opium dens by every legitimate means, but merely to prohibit the keeping of such places, and upon strict rules of interpretation it would be difficult to maintain that the latter expression is as broad as the former, or that it will cover anything besides provisions for punishing the keepers of such resorts." That is, upon strict rules of interpretation, the title embraces the prohibition of keeping such places of resort, and the punishment of the owners and keepers thereof, and does not embrace the matter of making it a criminal offense for any one to resort to such places. And the court said: "In dealing with this particular objection to parts of statutes, which, as a whole, embrace but one subject of legislation, the courts of the different states have adopted an exceedingly liberal rule of construction in favor of their validity. * * * It is not inconsistent with these provisions [of the constitution] to give some slight enlargement to the literal meaning of the title of a law." So, applying what the court said in that case to this one, it may be said here that the title of the act does not profess in explicit terms to aim at the preservation of intelligence of passing events or current news by every legitimate means, but merely to preserve newspapers containing such intelligence or news, and it is not inconsistent with the provisions of the constitution to give some slight enlargement to the literal meaning of the title of the law, and the said liberal rules adopted by the courts of the several states should be adopted in this case.

"The constitution does not require that the title of an act shall be the most exact expression of the subject which could be invented. The general purpose of section 17, article IV., of the constitution, is accomplished when the law has but one general object, which is fairly indicated by its title. The different steps by which the result is to be accomplished are not different subjects, but minor parts of the same subject." (Kline v. Kinkead,16 Nev. 194.) It is submitted that in this case there is but one general object of the act, which has been pointed out herein, and which is fairly indicated in the title; that the step of publishing legal advertising and printing in the designated paper is a step by which the result is to be accomplished, and is not a different subject, but a minor part of the same subject.

If the cases of Esser v. Spaulding, 17 Nev. 289;State v. Atherton, 19 Nev. 332; and Ex parteLivingston, 20 Nev. 282, be examined and the interpretations there given and the reasoning therein contained be applied in this case, the constitutionality of the act of 1895 will further clearly appear. The objection that the act regulates legal advertising and printing is not a valid objection to its constitutionality. This is simply an incident to and not the object of the act. Notice by publication is required to be given in the following matters: Delinquent tax suits, sale of property for delinquent taxes, notice to creditors of deceased persons, notice of elections, expiration of time of registration, meeting of the board of equalization, and in many other matters. These notices are legal advertisements or legal printing, and are simply incidents to and not the subject of the several acts wherein their publication is required. The objections that the act requires legal advertising and printing to be done in these papers without regard to the price to be charged, and that no rates are fixed by law, are not well taken. There are rates fixed by law for some legal advertisements.

If the paper should refuse to do any given work at the rate fixed for similar work, it certainly would leave the matter open for competition, and to the lowest bidder; for the act provides that legal advertising and printing shall be done in the designated papers; "provided, the rate for such work shall not exceed the rate established by law." If there be no rate established for the particular work, certainly it is not required that such work shall be done in these papers, unless terms can be agreed on by the officers and the proprietors of the papers, otherwise they would have to do the work without compensation, if at all. The matter of rates, in all cases where rates are not fixed by law, is left exactly where it was before the law was passed. The county recorder only designates the paper; he has nothing to do with the rates, nor with legal advertising and printing, but they are left in the hands of the respective officers as before. It is not probable that the respondents, or any officer having such printing to be done, would agree with the designated paper for higher rates than those asked by a competitive paper.

From the foregoing views it follows, not only that the public interest cannot be injured by the law, but that the act is clearly constitutional, and upon the latter ground the proceedings of the respondents in the premises should be annulled.

I therefore respectfully dissent from the judgment of the court.