State Ex Rel. Torreyson v. Grey

32 P. 190, 21 Nev. 378

• Court: Nevada Supreme Court
• Decided: January 5, 1893
• Docket: No. 1375.
• Status: Published

Opinions

By the Court,

Mtjrphx, C. J.:

At the session of the legislature of 1891 there were introduced and passed by the senate, and concurred in by the assembly, twenty-six, and introduced and passed by the assembly, and concurred in by the senate, two, making twenty-eight in all, proposed amendments to the constitution of this state. Said proposed amendments were agreed to by a majority of all the members elected to each of the two houses, entered in their respective journals, with the yeas and nays taken thereon, and were published in full, with the statutes and the printed proceedings of the senate and assembly during the year 1891, and distributed generally throughout the state more than three months next preceding the general election held in November, 1892. This was the only publication had of such proposed amendments. On the 3d day of February, 1893, the senate and assembly being- in session, through their proper officers, requested the secretary of state to return to each of the respective houses the proposed amendments acted upon at the fifteenth session of the legislature, for such further action as may seem to them proper and just, and as provided for in section 1 of article 16 of the constitution. But the secretary of state refused, and still refuses to return said proposed amendments, or any' of them, giving as his reason for such refusal that the said proposed amendments were not in a condition to be referred to the present legislature, for the reason that the same had not been published “ for three months next preceding the last general election;” he claiming that a publication in the statutes and journals was not a publication ‘ ‘ for three months next preceding the general election,” and was not such a publication as is required by the constitution. At the request of the senate and assembly, the attorney g-eneral applied for and was granted the alternative writ of mandamus.

Section 1 of article 16 reads as follows: “Any amendment or amendments to this constitution may be proposed in the senate or assembly, and if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their x’espective journals, with the yeas and nays taken thereon, and referred to the legislature next to be chosen, and shall be published for three months next preceding the time of making such choice. And if in the legislature next chosen as aforesaid, such proposed ¡unendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall bo the duty of the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments, by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendinents shall become a part of the constitution.” -

The only question we are required to pass upon is what is meant by the sentence “ and shall be published for three months next preceding- the time of making such choice ? ” It is insisted by the attorneys for the respondent that a publication in the statute does not comply with the requirements of section 1 of article 16 of the constitution, because, the statutes being printed and distributed as expeditiously as possibly after the adjournment of the legislature, and therefore printed and published some eighteen months before the election of members to the next legislature to be chosen; or putting it in another form, the statutes being printed and distributed for more than three months preceding the general election, it was not a publication for three months next preceding the election. It is a well established principle of law, and one that does not require the citation of authorities, “ that the greater includes the lesser.” Therefore the statutes being printed and published from sixteen to eighteen months before the election, is a publication for three months next preceding the election, for a statute is a continuous publication; it is the publication of edicts which the people in the state are bound to take notice of and act under.

A publication is defined in the dictionaries: “ the act of publishing or making known; notifying or printing; proclamation; divulgation; promulgation — as the publication of the gospel; the publication of statutes or edicts. Published is defined by Worcester as the act of publishing or making public; by Webster, the act of publishing or making known; notification to the people at large, either by words, writing, or printing; by Bouvier, as the act by which a tiling is made public. The design of publication prescribed by the constitution was to convey to the voters in this state the information that certain constitutional amendments had been proposed, and to afford them an opportunity to discuss the advisability of such proposed amendments, and to govern them in their choice for members of the next legislature; and that object was as well accomplished by a publication in the statutes as it could have been by any other course. It was not only sufficient to satisfy the requirements of the spirit of the constitution, but in our opinion the proceeding in the manner of publication was in conformity with the letter of the section under discussion.

From the reading of the section it is evident that the framers of the constitution intended that the legislature should be the sole judges as to the manner in which such publication is to be made, there being no restraint on them whatever, except requiring the publication to commence at least three months before the holding- of the election; and we cannot, from reason or authority, come to any other conclusion than that a publication for eighteen months must be deemed a publication for three months, so long as that publication continued up to and including tlie date of the happening of the event for which the publication was intended to give the notice to the voters of the state.

The attorneys for the respondent admit that the legislative department is vested with this discretionary power, in so far as authorizing the method of publication of the amendments, so long- as they were published for just three months next preceding the election. They admit that, by resolution the legislature could authorize publication to be made in one weekly newspaper; or by printing posters at the state printing office and posting them in conspicuous places throughout the state; or by printing circulars and distributing them generally to the voters; and as we understand thorn, the publication might be made in any conceivable way excepting in the statutes. This is an attempt to place a construction upon- the section never intended by the framers of the instrument, nor the people when they ratified it. If we were to apply the rule of construction contended for — then if the legislature should introduce a resolution that the notice of the proposed constitutional amendments should be published in one weekly newspaper, and the first issue of such paper containing- such notice should be struck off ninety-five days before the election, then it would not be a good publication, because it was published for more than three months next preceding the election — such a “narrow and technical reasoning would be misplaced when brought to bear on an instrument framed and adopted by the people themselves for themselves.” In construing constitutional provisions, courts ought not on the one hand to indulge in ingenious speculations which may lead us wide from the sense and spirit of the instrument; nor should we apply to it such a narrow construction as would exclude the main object and intention of its framers. Therefore, where the words of a constitution are unambiguous and in their commonly received sense lead to a reasonable conclusion, then such instrument should be read according to the natural and most obvious import of its framers, without resorting to subtle and forced construction for the purpose of limiting or extending its operations.

The section under consideration contemplates a publication in the statutes or in the newspapers, as the legislature may determine, and that department has in one instance given to section 1 of article 16 of the constitution a construction which we think we are in duty bound to adopt. That was during the twelfth session. Stat. 1885, p. 150, “ Senate joint and concurrent resolutions relative to the manner in which resolutions proposing constitutional amendments shall be treated.” The fifth subdivision of that resolution reads: “Fifth. That said duplicate enrolled copies of said resolutions shall be published in the printed copies of the statutes and resolutions of the present session of the legislature in the same order and manner as if they were the original enrolled resolutions.” Showing conclusively that it was their understanding from the reading of the section under discussion that a publication in the statutes was all that was required under its provisions, and in this we think that they gave to the section the construction that was intended to be placed upon it by the framers of that instrument. From an examination of constitutions, in relation to proposed amendments of other states, we find that in quite a number no publication is required. In others publication is made in the statutes; and in others publication is required from three to twelve months, and the manner of publication is provided for in the constitutions or by a general law.

Section 8 of article 15 of the constitution provides: “ That the legislature shall provide for the speedy publication of all statute laws of a general nature.” On the 14th day of February, 1865, the legislature did enact a law, which law is still in force, requiring the printing, free distribution and sale of all laws, resolutions and memorials passed at each session of the legislature. That course having been pursued for such a length of time by the legislature, and acquiesced in by the people, it is fair to presume that they deemed the 'publication in the statutes a compliance with the constitutional requirements. For “ frequent exercises of power uniform and long acquiescence of the people in it, constitute a fundamental law, as binding as though it had been formulated expressly in the constitution.” (James. Const. Con. 574h; Cooley, Const. Lirn. 82; Sedg. St. Const./ 412.) Our constitution having been adopted in the month of October, 1864, and numerous mendments having been proposed and acted upon by the people, and some of them having-been ratified, they are now a part of the constitution, under which laws have been enacted and property rights acquired. The executive department of the state government has in many ways recognized them, and this court having sustained the constitutionality of laws enacted to carry into effect the provisions of the amendments so proposed and ratified by the people, publication in the statutes having the sanction of long and general approval, were there ever a doubt existing as to the legality of the publication, the people having acted under the construction placed upon the section by the legislature, under such circumstances it is our duty to hold that a publication in the statutes is a compliance with section 1 of article 16 of the constitution, and the proposed amendments should be referred to the present session of the legislature for such further action as to them may seem just. It is therefore ordered that the peremptory writ of mandamus issue forthwith.