State v. Wheeler

44 P. 430, 23 Nev. 143

Opinion

By the Court,

Bigelow, C. J.

(after stating the facts):

The constitutionality of the act under which this action is brought has been quite ably argued before us, but as, in the view we take, the case can be disposed of without deciding that point, we do not consider it. (State ex rel. Guinan v. Meder, 22 Nev. 264.) Aside from that, the question presented is whether the defendants were required to procure the license provided for in the act of March 12, 1895. This turns upon whether, as lessees of certain land for a fixed term, they are the “ owners and holders ” of it, within the meaning of the proviso to section one of that act.

As used here, neither of these words has a defined legal meaning, nor is the sense in which the legislature intended to use at least one of them by any means clear. As defined by the law dictionaries, the word “ holder ” means one who is legally in possession of a negotiable instrument, but of course that is not the meaning intended here. Webster gives it also the legal meaning of one who holds land, etc., under another; a tenant. But its popular meaning is one who holds, and as used here it was probably intended to mean one who is in possession, actual or constructive, of land. One whose title vested in him the right to the immediate possession, and who could, at any time, without let or hindrance, take actual possession, would doubtless be deemed the holder of the land, although not then in its actual possession.

But the word “ owner ” is not so easily defined. Generally, as stated in 1 Hare, Const. Law, 355, it is nomen generalissimum, and may be applied to any defined interest in real estate. (Gitchell v. Kreidler, 84 Mo. 476.) As used in statutes providing that property shall be assessed to the owner, it has been held to mean the owner in fee, and not to include a lessee (Davis v. Cincinnati, 36 Ohio St. 24: 25 Am. and Eng. Ency. 120), while in other cases what seems to be exactly the opposite has been decided (25 Am. and Eng. Ency. 122). In homestead statutes it includes equitable, as well as legal, owners (Lozo v. Sutherland, 38 Mich. 170; Wilder v. Haughey, 21 Minn. 101), while in condemnation proceedings it embraces all having estates in the land, either in possession, reversion or remainder (Watson v. N. Y. Cen. R. R. Co., 47 N. Y. 162), and in statutes providing for redemption from forced sale, all who have a substantial interest in the premises (Cooley, Tax. 558). In Wellington v. State, 52 Ark. 266, a prosecution under a statute forbidding hunting within enclosures without the consent of the owner, the court said: “ One who has the control, use and possession of land, as against the real owner and all others, is, in law, the owner of such lands within the meaning of the act.”

In Moeller v. Harvey, 16 Phila. 66, and Schott v. Harvey, 105 Pa. St. 222, an act of the legislature requiring the owners of factories to provide fire escapes for the use of their employees came under review, and it was held that the statute applied to the lessee of a factory who was actually operating it, and not the owner in fee of the premises. In the former case the court said: “ In like manner he is an owner to whom the premises will revert on the expiration of the lease, while the lessee has a right of ownership which is equally real, whether the term is for one or a hundred years. In fine, they are owners who have a title that will or may be reduced to possession at a future period, and they who are in possession by virtue of an existing right, however brief.” And again in the latter case (105 Pa. St. 228): “The term ‘owner’ is undoubtedly broad enough to cover, either view of the case. A tenant for years, a tenant for life, and a remainder man in fee is each an owner. So there may be a legal and an equitable estate; the trustees and cestui que trust are both owners. When, therefore, the legislature used a term of such varied meaning, we must presume they intended such an owner as is in the possession and occupancy of the premises, who has the immediate dominion and control over it, and the manner of whose use makes a fire escape necessary. Had the owner in fee been intended, it was easy to have said so.” Where words of such uncertain meaning are used in a statute, the sense they were intended to bear must be determined from a consideration of the whole statute and its subject matter, aided by certain general rules of statutory construction, presumed to be known to lawmakers as 'well as courts, such as that some kinds of statutes are to be construed strictly and others liberally.

1. First, w'e will consider the statute and its subject matter. For some reason the legislature saw fit to require persons owning or controlling sheep to procure licenses, but exempted from the operation of the law the owners and holders of a certain amount of land. We must suppose that the purpose of the law was to obtain additional revenue, but, if so, what reason could there have been for the exemption? If it was proper to put this additional burden on those engaged in the sheep industry, why exempt the owners of land any more than the owners of watches or any other kind of property? It is difficult, indeed, to find a satisfactory answer to this inquiry. There seems but little, if any, logical connection between the two. The sheep do not have to be kept on the land, nor need the land be used in connection with them. Indeed, it need not even be in the same county. But we are bound to suppose there was some reason for it, some honorable reason for it, as in construing a law we are not permitted to indulge in the belief, if it can be avoided, that the legislature acted either for the purpose of favoring certain individuals, or to injure and destroy the business of others, or without reason of any kind. If this reason can be found, it may assist in elucidating the statute. It has been suggested that it was thereby intended to reach and subject to taxation wandering bands of sheep from other states that have heretofore been driven in for pasturage after one assessing season closes, and then driven out again before the next opens, thereby robbing our herds of pasturage, and yielding no revenue to our coffers. As is well known, some of these wandering shepherds are like the Arabs — here to-day and there to-morrow — without fixed places of habitation anywhere. They are the owners of no land by any sort of title, and, consequently, it only being intended to reach them, the exemption should be extended to all who are; for those holding land either by possessory title, by lease, by contract of purchase from the state, or by homestead or pre-emption claim, are generally, equally with those holding by title in fee, permanent residents of the state, and pay taxes on their property the same as other residents. Perhaps there is not much force in this reasoning, and the suggested purpose of the enactment of the law in its present shape may not be the true one, but it is at least a reason, and about the only one that can be offered that should have had any weight with the legislature.

2. Another reason for the conclusion that it could not have been the intention to exempt only owners in fee, is that the great mass of land held for stock purposes in this state is not held by that title, but by contract of purchase from the state. Of this land, while having no legal title, the vendees are the equitable owners, and they are generally considered and treated as the full Owners thereof. Such lands are mortgaged, conveyed, taxed, homesteaded and sold under execution, substantially the same as land held under the most absolute title, and it cannot have been the intention that such ownership, sufficient for all other purposes, should be insufficient for this. The same may be said of possessory titles to the public domain. Except as against the United States or its privies, the holders of such titles are treated, for most purposes, as the absolute owners of the property. And yet, if all such titles are not sufficient under this law, then none are; for the legislature must either have meant all of them, or none but title in fee.

3. But perhaps the strongest reason that can be given for the conclusion which we here announce is that this is a penal statute, and as such requires a strict construction when against a citizen, but a liberal one in his favor. “A penal statute is one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing prohibited.” (Dwarris, Stats. 74; Woolverton v. Taylor, 132 Ill. 137; Bond v. Railroad Co., 67 Iowa, 716.) Benal statutes include those that enforce a fine or pecuniary recovery. (Sutherland, Stat. Const., sec. 358.) It has sometimes been said that revenue laws are not penal, but however that may be with statutes imposing taxes generally, which are to be collected by the means ordinarily resorted to for the collection of taxes, any statute which imposes pecuniary penalty, fine and imprisonment for a failure to pay the tax, should certainly be classed as a penal statute, and subjected to a strict construction. (Bishop, Writ. Laws, sec. 195; Sutherland, Stat. Const. 364; Com. v. Standard Oil Co., 101 Pa. St. 150; Am. Net Twine Co. v. Worthington, 141 U. S. 468; Rice v. United States, 53 Fed. Rep. 910; Endlich, Stat. Inter., sec. 346.) That is the case" with the law now under consideration. It imposes taxes not generally resting on members of the community; it declares every one engaging in the sheep business, without procuring the license therein required, to be guilty of a misdemeanor, and subjects him to a fine of from $50 to $250, or to imprisonment from 25 to 90 days; and. it makes him liable in a civil action to a penalty of' $25, in addition to the amount found due for the license. It seems clear that it should be classed as a penal statute, and subjected to a strict interpretation.

Being penal, the proviso exempting persons from the operation of the law should, on the other hand, receive a liberal interpretation. Mr. Bishop states the rule thus: “While the parts of a penal statute which subject to punishment or a penalty are, from their odious nature, to be construed strictly, those which exempt from penal consequences will, because of their opposite character, receive a liberal interpretation.” (Bishop, Writ. Laws, secs. 196, 226.) To the same effect are Sutherland, Stat. Const., sec. 227; Endlich, Stat. Int.,- sec. 332.

It remains but to apply these doctrines to the case. ■ We have found that one meaning of the word “ owner ” is the lessee or tenant of land; the word “holder” sometimes means the same thing, or, as used here, the person in possession, actual or constructive, of real estate, which, in the absence of a showing to the contrary, a tenant is always presumed to be. There is nothing in the act to indicate that the legislature did not intend to use “ owner ” in this broad sense, instead of the narrower one of him who has title in fee. As giving the statute the broader construction will exempt persons from the penalties denounced by the act, the rules above stated require us to give it this construction. The appellant contends that the tenant for a fixed term is only the holder of property, and that the use of the term “ owner and holder” shows that the legislature meant more than that. But a tenant is more than a holder; he is, for many purposes, an owner, so both words fit him. To our minds, the legislature intended by the use of that term, just what it has said: That is, that for a person to be entitled to the exemption he must be both an owner and holder. It was not to be sufficient for him to be the owner of land which he had leased to another, or from the possession of which he was excluded by the adverse holding of another; nor was the mere holding of land without color of title to be sufficient. By this construction both words are given an appropriate meaning, and neither are used tautologically.

In conclusion, it must, at least, be admitted that the meaning of the term “ owner and holder ” is not clear, and is a matter of reasonable doubt. Such being the case, we cannot do better than to quote from Endlich, Stat. Int., sec. 330, where the learned author says: “The effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject, and against the legislature which bas failed to explain itself.” And again from the opinion of the the court in Hines v. Railroad Co., 95 N. C. 437, that the “ plain meaning [of words and phraseology] must not be extended by inference, and when there is reasonable doubt as to their true meaning, the court will not give them such interpretation as to impose the penalty.” Presumptively, the conclusion to which these principles lead us is in accordance with the legislative intent, for we must suppose the lawmakers to have been in the possession of such common rules of statutory construction as these, and that, had they not intended the act to be thus construed, they would have used the term owners in fee; or some equivalent term; and it may be added that if it is not in accordance with that intention, it will be very easy to change the law so as to leave no doubt concerning it.

The judgment is affirmed.