Russell v. Esmeralda County

32 Nev. 304

• Court: Nevada Supreme Court
• Decided: January 15, 1910
• Docket: No. 1827
• Status: Published

Opinion

By the Court,

NorcRoss, C. J.:

This is an action brought by respondent, as plaintiff, against the appellant, Esmeralda County, to recover a judgment foils,954.70 alleged to be owing him on account of an unpaid balance for fees as constable of Goldfield Township, in said county, and accruing between the 1st day of March, 1905, and the 30th day of December, 1906, inclusive. The plaintiff had presented monthly bills to the county for fees and disbursements, covering the time mentioned, aggregating $13,815.75. The board of county commissioners, acting for the defendant county, allowed on account of these several claims the aggregate sum of $9,861.05 and refused to approve or allow the same in any greater amount. The case was tried upon an agreed statement of facts, and judgment awarded in favor of the plaintiff for the full amount sued for. From the judgment, the defendant county has appealed.-

By the provisions of the agreed statement of facts, appellant cannot recover, unless the provisions of Comp. Laws, 2460, 2462, are applicable to his case. These sections of the Compiled Laws are sections 5 and 7, respectively, of an act entitled "An act to regulate fees and compensation for official and other services in the State of Nevada? approved March 9, 1865, as amended, Stats. 1875, p. 147, 149. Section 5, supra, related to the fees allowed to sheriffs, and section 7, supra, the fees allowed to constables, by reference, constables were allowed for certain services in criminal cases "the same fees as are allowed sheriffs for similar services.”

By an act approved February 27, 1883, entitled "An act to regulate fees and compensation for official and other services in the State of Nevada, and to repeal all other acts in relation thereto” (Comp. Laws 2468-2507), another comprehensive act was passed regulating fees of officers in this state, including the offices of sheriff and constable. Sections 5 and 7 of this latter act corresponded with the same numbered sections of the act first mentioned, excepting that the fees allowable were lower. By section 41 of the act of 1883 (Comp. Laws, 2506), it is provided that "the.provisions of this act shall not apply to or affect the fees of the officers of any county in this state wherein tbe total vote of the last election did not exceed eight hundred, and the same shall apply to all future elections, and it is hereby provided that in such counties 'An act to regulate fees and compensation for official and other services in the State of Nevada,’ approved March 9, 1865 (see section 2457, et seq.), and the act amendatory thereto, shall remain in full force and effect.” Section 42 of the act (Comp. Laws, 2507) reads: "This act repeals all other acts and parts of acts now in force, relating to fees of officers, which fees are collectible by said officers from the.persons for whom said services are rendered.” It was agreed that at the general election in November, 1904, the total vote of Esmeralda County exceeded 800.

We think it was clearly the intention of the legislature that the provision of section 7 of the act of 1883 (Comp. Laws, 2474), reading, "for services and travel in criminal cases, the same fees as are allowed sheriffs for similar services,” referred to section 2472. In the lower1 court, it would appear that counsel for respondent contended that, under certain rules of statutory construction, this would not be the case, but as no such contention is urged in the brief upon appeal, that position, we think, may be regarded as abandoned for lack of merit.

Counsel for appellant makes the sole contention upon this appeal that the act of 1883, supra, is void, in that it violates certain sections of the state and federal constitutions. It is first contended that it is contrary to the provisions of section 17, article 4, which requires 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;’ We think this contention is without merit. The act deals exclusively with the subject of fees which public officers may charge for official services and compensation which they may receive for services rendered by virtue of their official position. The act contains but one general subject and matter properly connected therewith. No authorities whatever have been cited supporting counsel’s contention that this act violates the provision of the constitution in question. The following cases, we think, support the view that the act is within this particular constitutional requirement: State v. Ah Sam, 15 Nev. 27, 27 Am. Rep. 454; Esser v. Spalding, 17 Nev. 308; State v. Silver, 9 Nev. 231; State v. Atherton, 19 Nev. 344; Bell v. District Court, 28 Nev. 296; 1 L. R. A. (N. S) 843, 113 Am. St. Rep. 854; State v. State Bank and Trust Co., 31 Nev. 456; State v. Frazier, 59 Pac. 5. The contention that the act of 1883 is violative of sections 20, 21, article 4, in that it is not of general and uniform operation throughout the entire state, is answered, we think, by former decisions of this court.

In the case of State v. Fogus, 19 Nev. 247, this court by Hawley, J., said: "From this” (referring to extracts from Constitutional Debates) "it will be seen that the question Avhether the legislature should be prohibited from passing local or special laws in relation to this subject was fully discussed and fairly presented. The fact that all clauses relating to this subject were excluded in expressing the will of the convention is significant. The adoption of the amendments furnish very strong evidence, and, considered in connection with the reason given therefor, it becomes conclusive that the members did not intend to place any restrictions upon the power of the legislature in regulating the fees and compensation of county officers by any of the provisions enumerated in section 20. Section 21 provides that 'in all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the state.’ Could a general law be enacted which would be applicable to every county in the state? Any effort to draft such a law would be liable to result in making the compensation of officers wholly inadequate in the small and sparsely populated counties, or exorbitant in the larger and more populous ones. Some of the counties have much more legal and public business than others, and the compensation of officers, to secure the ends of justice and meet the requirements of the public service, should be regulated with reference to the condition of the respective counties, and the amount and character of the business transacted therein. A fee bill that would satisfy the people of Churchill County would not be apt to answer the requirements of the people in Eureka or Washoe Counties.

"In the present conditions of affairs in this state it would, at least, be difficult, if not impossible, to fix and graduate the compensation by population, or the amount of fees collected, so as to make a general law that would be applicable to every county in the state. We had occasion to refer to this subject in Evans v. Job, 8 Nev. 334, to show 'that it was the intention of the framers of the constitution to allow the legislature to pass some local and special laws/ and we then stated that local legislation had always been exercised by the legislature, and acquiesced in by the people, in regulating the salaries of certain county and district officers, and pointed out the difficulties that were liable to be encountered by attempting to make such laws of uniform operation throughout the state. In People v. C. P. R. R. Co., 43 Cal. 398, the court said: 'It is obvious that every law upon a general subject is not per se, nor by constitutional intendment, necessarily a law of a general nature. The subject may be general, but the law, and the rule it prescribes, may be special. .Fees of office, for instance, constitute a general subject — one which pervades the length and breadth of the state, and extends into every political subdivision of which it is composed — yet a statute may prescribe what these fees of office shall be in a particular county, and may declare that they shall differ from fees established for the same official duties performed in another county. Such a law would not be a law of a general nature, involving the constitutional necessity of uniform operation, but it would be a special law upon a general subject; and at an early period in our judicial history the constitutionality of such a law was unhesitatingly sustained by this court. (Ryan v. Johnson, 5 Cal. 86.)’ The case of Miller v. Kister, 68 Cal. 142, 8 Pac. 813, has no application to the case at bar, as it was decided under the new constitution of California, which expressly prohibits the legislature from passing local or special laws 'affecting the fees or salary of any officer.’ ”

In the case of Comstock M. & M. Co. v. Allen, 21 Nev. 325, 330, this court, by Bigelow, J., said: "It is first contended that this act is unconstitutional, upon the ground that it is special legislation, applicable only to Ormsby County; and, as such, in conflict with section 20 of article 4 of the. constitution as it stood prior to the amendment adopted in 1889. It becomes necessary to pass upon this question, because that act allows larger fees for these services than are allowed by the general statutes, which, if this act is unconstitutional, would govern their amount. If the statute was in conflict with the constitution as it stood at the time of the passage of the law, the subsequent change in the constitution authorizing such legislation would not validate it. (State v. Tufly, 20 Nev. 427, 19 Am. St. Rep. 374.) We are of the opinion, however, that in the case of State v. Fogus, 19 Nev. 247, the question of the constitutionality of such a statute was settled adversely to the appellant, and, as the reasoning of the case seems clear and satisfactory, we see no grounds for refusing to follow it here.” (See, also, State v. Spinner, 22 Nev. 213.)

We are unable to see any force in the contention that this act (1883) is violative of section 1, article 14, of the amendments to the federal constitution. The law operates alike on all persons similarly situated, and hence it cannot be said to deny to any citizen the equal protection of the law or abridge the privileges or immunities thereof within the purview of this section of the constitution. (Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192, 32 L. Ed. 544; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Hayes v. State, 120 U. S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A. 183.) Similar statutes exist in many states, and we are not aware of their ever having been successfully attacked on this ground. It is our conclusion that the act of 1883, supra, is constitutional, and, as respondent was allowed his fees in accordance with its provisions, it follows that he is not entitled to recover in the action.

It was contended by counsel for appellant that, as the respondent accepted and was paid the allowance upon his claims made by the county commissioners, he is not entitled to sue for the amount disallowed. As this contention is raised for the first time upon the appeal, and there is a question of its waiver under the stipulation, we have not given it any consideration.

The judgment is reversed, and the cause remanded.