State v. Board of County Commissioners

41 P. 145, 22 Nev. 399

• Court: Nevada Supreme Court
• Decided: July 5, 1895
• Docket: No. 1432.
• Status: Published

Opinions

By the Court,

Bigelow, C. J.:

Original application for a writ of certiorari. By Stats. 1895, p. 107, the legislature enacted a law entitled “An act to amend an act entitled ‘An act for the purchase and preservation of public newspapers printed and published in the several counties of this state,’ approved February 1, 1865.” The body of the act is as follows: “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 so 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.” Pursuant to this statute the county recorder of Washoe county, on the 3d day of May, 1895, subscribed for the Nevada State Journal, a newspaper coming within the terms of the act, and notified the board of his action. June 3, 1895, the respondents, as such board, made the following order: “It is hereby ordered that the county printing of Washoe county, Nevada, be and hereby is awarded to the Reno Evening Gazette until otherwise ordered by this board.” The relator, as district attorney of Washoe county, has applied for a writ to review this order, upon the ground that it is in conflict with the foregoing statute.

Although several interesting questions might be raised upon that statute, and as to whether the order of the board is in conflict with it, the point which has been principally argued, and to which we shall confine this opinion, is whether the act is in conflict with section 17 of article IV. of the constitution, which provides that .“each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which shall be briefly expressed in the title.” As originally enacted in 1865 (Gen. Stats., sec. 2197, et seq.), the law, the first section of which was amended as above stated, clearly embraced but one subject, which was correctly stated in the title to be “the purchase and preservation of public newspapers printed and published in the several counties in this state.” Section 1 requires the recorders to subscribe for not less than one nor more than three such county papers as the board of commissioners may select. Sections 2 and 3 direct how the papers shall be preserved and paid for, what the recorder shall be paid for his services, and the penalty for a failure to discharge his duties in that regard. Section 4 provides a punishment for abstracting or defacing the papers purchased under the act.

' Under the liberal construction of this clause of the constitution adopted by the courts {State v. Board of Commrs. of Humboldt Co., 21 Nev. 235), this was undoubtedly a homogeneous and valid law. While it contains many details, they are all of matters connected with the purchase and preservation of the newspapers, the subject stated in the title, and consequently are unobjectionable.

But into this comparatively unimportant act, involving an expenditure of probably not to exceed $30 or $40 a year, this amendment, without anything in the title to indicate the purpose to do so, injects the matter of legal advertising and printing, amounting to hundreds and perhaps thousands of dollars, whether we regard that term as applying to all legal advertising and printing or simply to that to be done for the counties. As so amended, it seems to us that the act clearly embraces two separate and independent subjects, only one of which is stated in the title; and that the one not stated is the real subject, while the other is merely the incident.

The object sought to be accomplished by the constitutional provision is not difficult to discover, and has been many times stated by the courts. It was to defeat “log-rolling5’ legislation, or the combining in one act of incongruous and distinct subjects, and to prevent fraud upon members of the legislature and the general public by covering up, under innocent titles, vicious and harmful provisions, of which the titles gave no hint, and of which, consequently, no knowledge might be obtained until they were enacted into laws. (State v. Silver, 9 Nev. 227; State v. Board of Comrs. of Humboldt Co., supra.) Among the great number of bills that are introduced every session, both members of the legislature and the people must necessarily largely depend for their knowledge of the purposes of the proposed measures upon the titles under which they are presented, and experience has amply demonstrated that the constitutional provision, if fairly and liberally construed, is a great aid to good legislation, and an embarrassment only to that which is not, or at least may not be, open and above board.

Certainly, prima facie, the subject of legal advertising and printing, and the subject of purchasing and preserving newspapers, are disconnected and independent matters. If they can be shown to be related in any manner it must be through some subtle reasoning that does not occur at first blush. The only argument seriously made in support of the law as amended is that the real purpose of the legislature in enacting it was that a record of current events, legal advertisements, etc., should be preserved, and that the better to accomplish that purpose it was germane to that object to provide that the paper to be preserved should contain all such advertisements. But that argument will not bear-examination.

In the first place, the subject of the act must be the subject stated in the title; and, next, the constitution does not say that all matters connected with the purposes or objects of the act may be contained therein, but only matter connected with the subject so stated. For instance, in Ex parte Hewlett, 22 Nev. 333, the object of the legislature in enacting the amendment .then under consideration was to afford better protection to the fish of the state, and all the provisions of the amendment were properly connected with that purpose; but, as in the title its subject was stated to be the amendment of one particular section of the original act, the constitution did not permit its being extended to the amendment of other sections. -If the title is restricted to certain purposes, the purview or body of the act must also be restricted, to that subject. The act can be no broader than the subject expressed in the title. (Suth. St. Const., sec. 87.) The title here restricts the subject to the “purchase and preservation” of newspapers, and consequently the act cannot be extended to a regulation of what they shall contain. But the truth is the real subject of the amendment under consideration is not stated in the title at all. That subject is legal advertising and printing, or, as restricted to its narrowest limits, county advertising and printing. The statement that the purpose of the act is to amend the act concerning the purchase and preservation of newspapers is a mere cover. That this is the fact is easily shown by a consideration of the effect of the amendment. Previous to its enactment, the power to designate in what paper ordinary legal advertisements should be placed rested in the district judges and other officers, and county commissioners controlled the county printing. It was the duty of such commissioners, and certainly was within their power, where the possibility of competition existed, to let such contract to the lowest bidder. It may even be questionable whether the order of the board here is not in conflict with the statute, upon the ground that it constitutes the letting of a contract, without advertising, that amounts to more than $500. (Gen. Stats., sec. 1972; Sadler v. Board of Comrs. of Eureka Co., 15 Nev. 39.) At any rate, they could advertise and let it to the lowest bidder, and, where they have acted with an eye single to the interests of the taxpayers, we may suppose they have done so. They could at least have some understanding about the. prices to be charged, and if not satisfactory could go elsewhere. But by this simple amendment all this is changed. All power over legal advertising is taken from all the other officers, and vested .in the county recorder alone. That officer simply subscribes for a paper, and, following that, the commissioners must designate it as the official paper, and all legal advertising and printing must be done therein. This, too, without regard to the prices to be charged, or how poor an advertising medium it may be. We say without regard to price, for although the act provides that the “rate” shall not exceed the rates established by law, if that meads the prices to be charged for such work, we find no such rates established for the great mass of county printing or legal advertising. Every county, every newspaper, and every individual in the state is, or may be, affected by the provisions of the act upon that subject, and when, as compared with these important changes in the law, we remember that the only change made by the act as to the purchase and preservation of newspapers is that, instead of the recorder subscribing for from one to three papers, to be selected by the commissioners, he is to subscribe for but one to be chosen by himself — an immaterial change, made only to facilitate the changes in the matter of advertising and printing — the real subject of the act becomes clearly apparent, and the statement in the title that its subject is the purchase and preservation of newspapers, decidedly ironical. It well illustrates the wisdom of the constitutional provision, and the necessity of a reasonable adherence to its directions. The title was concerning a matter of but little importance, and well calculated to escape attention. The bill, in truth, passed the legislature under false colors that gave no notice of its real character to those to be affected by it.

We have often held, and still hold, that the constitution is to be liberally construed, to the end that there shall be no unnecessary hampering of legislation, but there is a wide difference between liberal construction and nullification, which would be the effect of decidirig that an act, passed under a title so misleading as this, is, notwithstanding, a valid law. The section might as well be stricken from the constitution at once as a dead letter. This distinction is well illustrated by cases heretofore decided by this court. Those of State v. Ah Sam, 15 Nev. 27; Ex parte Livingston, 20 Nev. 287, and State v. Board of Comrs. of Humboldt Co., supra, of which we entirely approve, and which, in our judgment, contain nothing in conflict with what is here held, were all cases in which, by liberal construction, the court was able to uphold the validity of the acts then under ’consideration; while, on the other hand, the cases of State v. Silver, supra, State v. Hallock, 19 Nev. 384, and State v. Hoadley, 20 Nev. 317, fell on the other side of the line, and, notwithstanding the rules of liberal construction, the acts then being reviewed were held to be unconstitutional.

Speaking of a similar provision in the constitution of New York, the supreme court of that state used language which we consider quite applicable here. It said: “The manifest intention of the constitutional provision was to require sufficient notice of the subject of proposed legislation of a private or local character to be so expressed in the title as to put not only interested parties, but also all persons concerned in the proposed legislation, upon their guard, and to inform all persons reading it of the general purpose and scope of the act. While this is not required to be done by pursuing any formula, or with much detail of specification, and great liberality of construction should be indulged in bjr the courts to uphold the constitutionality of legislation, yet a due regard to constitutional requirements demands that, when its plain and obvious purposes are disregarded or evaded, the judgment of the court should give effect to its provisions.” (Johnson v. Spicer, 107 N. Y. 185, 202.)

To our minds it is quite clear that this title not only gave no such notice as is required in that case of the intention to deal with the matter of legal advertising and printing, but that it was well calculated to actually mislead by inducing the belief that it did not refer to any such subject. It follows that, as passed, the act is evasive in both the letter and spirit of the section of the constitution under consideration. It embraces the very evil against which the provision was directed, and under such circumstances the court would fail in its most important function if it did not follow the mandates of the higher law.

The act being unconstitutional, and consequently no law, so far, at least, as the subject of legal advertising is concerned, the order of the board cannot be in conflict with it, and the writ will therefore be dismissed.

It is so ordered.

Belknap, J.: I concur.