But one question is discussed in the prevailing opinion in this case, to wit, is an order changing the place of trial an *Page 264 appealable order? The majority of the court hold it is not. In said opinion it is stated: "Under our former practice act as amended in 1865 (Stats. 1865, p. 111), an order granting or refusing to change the place of trial of an action or proceeding was appealable to this court. (See Section 2513, Comp. Laws.)"
That is, I think, a mistake. The civil practice act passed November 29, 1861, was not "amended" in 1865. But in the last-named year the legislature of Nevada passed an independent act entitled "An act concerning the courts of justice of this state and judicial officers," approved January 26, 1865. (See page 110, Stats. 1865.)
In clause 2 of Section 6 of said last-named act, on page 111 of the Statutes of 1865, is the following: "The supreme court shall have jurisdiction to review upon appeal. First, * * *. Second, * * * an order granting or refusing to change the place of trial of an action or proceeding after motion is made therefor in the cases of which that court has appellate jurisdiction."
This enactment has remained upon the statute books of Nevada ever since, and has been published in every compilation of Nevada's laws: In the Bonnifield Healy compilation of 1873 (see 1 Comp. Laws 1873, p. 219, sec. 915); the Baily Hammond compilation (or General Statutes) of 1885 (see Gen. Stats. 1885, p. 648, sec. 2430); and the Cutting compilation of 1900 (see Comp. Laws Nev. 1900, p. 540, sec. 2513).
This was not an amendment to the practice act. It was, as stated above, an independent statute, giving a right that previous to that time had not been in the statutes of the state. Previous to that time, in the practice act of 1861 a right was given to appeal from an order refusing to change place of trial, but no such right from an order granting a change of the place of trial. See, in Stats. 1861, p. 363, sec. 285: "An appeal may be taken to the supreme court from the district court in the following cases: First, * * * Second, * * * an order refusing to change place of trial of an action or proceeding after motion is made therefor."
Thus it will be seen that if, as stated in the case ofState v. Shaw, 21 Nev. 224, 29 P. 321, it be true that "when Table *Page 265 Mountain Gold Silver Min. Co. v. Waller'sDefeat Silver Min. Co., 4 Nev. 218, was decided, the statute made such orders appealable," it was the independent statute of 1865, and not the practice act, that made it so. The practice act of 1861 made orders refusing to change venue appealable, but not orders granting such change; and in the Shaw case it was granting, and not refusing, to change place of trial that was under consideration by the court.
The prevailing opinion says: "When the present practice act was adopted in 1869, it was provided in the first section of title 9 upon the subject of appeals in civil actions that `a judgment or order in a civil action except when expressly made final by this act may be reviewed as prescribed by this act, and not otherwise. (Section 3422 Comp. Laws.)'" That was not then a new provision. This precise provision, in words identically the same, was in the practice act of 1861 (see Stats. 1861, p. 361, sec. 271), and has just remained in the statutes the same from the 29th of November, 1861, to the present time.
And while such provision was in the statutes, the legislature, by its enactment of 1865 — the independent statute above referred to — gave to the litigants the right to appeal from orders regarding venue whether such orders granted or refused change of venue. In 1868 the legislature of Nevada made a revision of the practice act, changing a number of things, but leaving the greater part as it was before. This act came as a new enactment, with the following title: "An act to regulate proceedings in civil cases in the courts of justice of this state and to repeal all other acts in relation thereto" (Stats. 1869, p. 196), and the repealing section at the end of the act expressly repealed the act of 1861.
Yet I do not believe that the legislature intended, or that it is a correct rule of interpretation to hold, that the sections and provisions of the act of 1861 that appear in the act of 1869 unchanged, but precisely in the identical words as they did in the act of 1861, were, simply by the force of so appearing, to have the force of later enactments of the legislature, and therefore to be the latest and true expression of the legislative will.
On the contrary, in my opinion, such sections gain no *Page 266 additional force by reason of their being so enacted. There never has been an instant of time in which such unchanged sections were not the law, including, of course, the section referred to.
Then how could a prior become a subsequent statute under such circumstances? No; such statute would take precedence in priority and rank in the order of time of their original enactment.
Therefore the statement in title 9 of the act of 1861, repeated in the act of 1869, that "a judgment or order in a civil action * * * may be reviewed as prescribed by this title and not otherwise," is a prior, and therefore subordinate, expression of the legislative will to the later and controlling expression of the legislative will in the independent act of 1865 that the supreme court does have jurisdiction to review on direct appeal therefrom an order either granting or refusing a change of venue.
The words "may be reviewed as prescribed in this titleand not otherwise" (italics are mine) have matter to which they aptly apply, independently of the matter contained in the act of 1865, to wit, giving notice of appeal, statement thereon, etc. Indeed, if necessary, it might probably be well claimed that reviewed "as prescribed" means the manner of the appeal — notice, statement, etc. — and not the things from which appeal may be taken, to wit, orders granting or refusing change of venue; and this especially as the things from which appeal may be taken are provided for in another statute. Though this view may be true, it is not necessary to this case, and is therefore merely suggested here.
In addition to the foregoing consider the following:
1. The independent statute of 1865 providing for direct appeals from orders granting or refusing change of venue has been retained in every compilation of the laws of Nevada since its passage, notwithstanding the legislative revision of the practice act in 1869; thus showing that in the judgment of the gentlemen to whom the wisdom of the legislature intrusted the various compilations, to wit, Judge M. S. Bonnifield, Judge T. W. Healy, Hon. Dav. E. Baily, Rev. Dr. John D. Hammond, and Hon. H. C. Cutting, this statute was not repealed, but was the law of the land. *Page 267
2. Rule XXIII of this court being published in all the volumes of the reports from 3 to 25, and last inclusive, shows that in the opinion of the justices of this court for a period of more than thirty years said independent statute stands unrepealed and is the law, unless for some reason the said justices have permitted a misleading rule of their court to stand, and be published in each succeeding volume of the reports of their opinions for over thirty years. The said Rule XXIII is as follows: "Appeals from orders granting or denying a change of venue, or any other interlocutory order made before trial, will be heard at any regular or adjourned term, upon three days' notice being given by either appellant or respondent, when the parties live within twenty miles of Carson. When the party served resides more that twenty miles from Carson an additional day's notice will be required for each fifty miles, or fraction of fifty miles, from Carson." As may above be seen, this court adopted and published a rule that it would hear appeals from such orders on three days' notice in cases the parties to which live within twenty miles of Carson, and one day for each fifty miles in cases in which said parties live a greater distance than twenty miles; thus showing that such cases, in the opinion of the justices of this court, should have more than usually prompt and speedy hearing and determination.
3. This leads to the next and third consideration, to wit: If a statute authorizing direct appeals from such orders were a vicious and bad statute working injustice, harm, expense, trouble, and other evils, then, when courts are endeavoring to find the legislative intent — the pole star of statutory interpretation — they might well let such thought weigh much in determining that such a statute could not have been within the intention of an intelligent, patriotic, and benevolent legislature, a legislature seeking only the good of its constituents; and therefore, if the meaning were doubtful, to lean towards excluding the statute pro bono publico. On the contrary, if such a statute were remedial, working justice, benefit, speedy decisions of cases, economy in time and money, and good generally, that the court, in seeking its true interpretation, guided by the pole star of legislative intent, might well say, if the meaning were doubtful, that an intelligent, patriotic, *Page 268 and benevolent legislature — one seeking the good of its constituents — could not have intended to repeal such a statute, for, if such a legislature intended repeal, it would have plainly said so. That such a statute is good, salutary, remedial, working justice, economy, speedy determination of cases and beneficial results generally, is, in my judgment, undoubted. Therefore repeal of it by implication should not be favored.
I trust I shall not be misunderstood in the foregoing, and supposed to hold, or even to hint, that the judicial department of the government is not bound by the legislative. On the contrary, I hold without reservation of any kind that the legislative department, acting within its sphere under the federal and state constitutions, is supreme. Each other department of the government, executive and judicial, and all persons, are bound by their enactments. I claim only this: That the legislative intent should be carefully sought for, and that in the search for it the canons of legal hermeneutics, the sound rules of statutory interpretation, should be applied, and wherever these lead the judiciary should follow, even in cases in which, in their opinion, the law is vicious and bad; but when these canons and rules lead to what is remedial, beneficial, and good, then certainly they should be applied and upheld.
4. Two cases formerly decided by this court have upheld the views above stated, to wit, Table Mountain Gold SilverMin. Co. v. Waller's Defeat Silver Min. Co.,4 Nev. 218; and Elam v. Griffin, 19 Nev. 442,14 P. 582. One case heretofore decided has held to the contrary, to wit, State v. Shaw, 21 Nev. 222,29 P. 321; but I think the law always has been, and now is, contrary to the last-named case, and in accordance with the two first named. In the Shaw case the court not only treated the question involved as being destitute of merit, but disposed of it rather cavalierly. It simply said that when the Table Mountain case was decided the statute made such an order appealable, but at the time the Shaw case was decided the statute had been changed! There was no statement or reasoning by the court to show when and how changed. This was a complete petitio principii. The question under consideration was, had there been a change in the *Page 269 statute? Simply to say yes to such a question was to "beg the question," and prove nothing. To my mind it seems that there is not only sufficient in the question to merit discussion and solution and answer, but also that the truth is conclusively against the decision of the court in the Shaw case.
To my mind, when the legislature, in 1869, struck out from the practice act the fragmentary, lame, and inadequate provision of 1861 providing for appeals from orders only refusing to change venue, and leaving in the independent statute of 1865 the full and complete remedy on this subject, to wit, direct appeals from orders both granting and refusing to change venue, it is judicial legislation, rather than interpretation, that says such legislation repeals the act of 1865. If, when the legislature of 1869 took up the subject of revision of the practice act, it found two statutes, each providing for precisely the same thing, each giving a full and complete remedy, and it struck out only one of these statutes and left the other, even then, in my judgment, the reasonable interpretation of their act would be that they thought one statute on one subject was enough, and that the symmetry of the statutory law demanded that one of them be stricken out, rather than that they aimed at a change in the law. One of the laws was superfluous, and therefore useless and should have been stricken out. It would be merely a removal of superfluous matter. If the legislature of 1869 had aimed at the symmetry and regularity of the law, its action was perfectly and precisely adapted to accomplish that result. If it aimed at change and intended change in the law, its action was poorly adapted to accomplish it. It went only half way. It should have stricken out both enactments. Then its action would have been adapted to its object and aim. As it is, its action was adapted only to symmetry and harmony.
For the foregoing reasons, I dissent from the prevailing opinion in this case.