State ex rel. Sparks v. State Bank & Trust Co.

On Petition for Rehearing

Pmt QxmiAM:

Counsel for appellants have filed a petition for a rehearing, in which it is contended that our former decision in this case is at variance with two recent decisions of this court, viz., Bell v. District Court, 28 Nev. 280, and State v. Gibson, 30 Nev. 353.

To hold that the act involved in this case is constitutional, we do not think has made necessary any different construction of the provisions of section 17 of article IV of the Constitution than that applied in former decisions of this court. Sometimes expressions may occur in an opinion not essentially necessary to its determination, and, taken alone, might be susceptible of too broad or too restricted a construction, but, viewed in the light of the entire decision, cannot be said to modify an established rule. The two cases, swpra, we think are clearly distinguishable from the case at bar.

The gist of the opinion in Bell v. District Court, supra, is *473contained in the following extract: "The subject of the act in question is elections. Its purpose and object is the orderly electing of public officers by the qualified voters of the state. The trial of an officer, after he has been so elected, for malfeasance in office, his removal, and the appointment of his successor because of such removal has no proper connection whatever with the subject of elections.”

The case of State v. Gibson involved the constitutionality of section 2 of an act entitled "An act to provide for the appointment of stenographers upon the hearing of preliminary examinations before committing magistrates in this state, and to regulate the compensation therefor” (Stats. 1907, p. 59, c. 32),.which reads: "When such report is made, the same, when transcribed and sworn to as aforesaid, shall be deemed a correct statement of the evidence and proceedings given and had therein, and shall be admissible in evidence on the trial of the case, as prescribed in section 151 of the criminal practice act of the State of Nevada.” In that case we said:- "An examination of the title to the act in question reveals that it has reference only to the appointment of a stenographer and fixing the compensation therefor. Nowhere in the title of the act is there any reference to the testimony being thereafter used as evidence, or at all. Section 2 of said act, therefore, clearly violates section 17 of article IV of the Constitution of our state, because the subject-matter is not embraced in the title of the act, nor can it be said that the subject-matter of section 2 is germane to the subject-matter defined in the title of the act;’ The above section was held, also, to violate other provisions of the Constitution not in question in the case at bar.

The contention of counsel for appellants that in this case we have departed from established precedents is clearly without merit. A few extracts from former decisions of this court will be sufficient answer to this contention.

In the case of State v. Ah Sam, 15 Nev. 27, 27 Am. Rep. 454, this court, by Beatty, C. J., said: "But in dealing with this particular objection to parts of statutes, which, as a whole, embrace but one subject of legislation, the courts of the different states have adopted an exceedingly liberal rule of *474construction in favor of their validity. The decisions on this point are very numerous, but it would be unnecessary and unprofitable to attempt a review of them; for in scarcely a single instance is an attempt made to lay down any rule or principle more definite than is to be gathered from the remark of Judge Cooley (Con. Lim. 146) that 'there has been a general disposition to construe the constitutional provision liberally, rather than to embarrass legislation by a construction, whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it has been adopted.’ The 'beneficial purposes’ designed to be accomplished by the provision in question are said to have been the prevention of 'surprise or fraud upon the legislature - by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted,’ and to fairly apprise the public of the subjects of legislation under consideration by their representatives, in order that they might have an opportunity of being heard thereon by petition, or otherwise. (Cooley’s Con. Lim. 142,143.) It is not inconsistent with these purposes to give some slight enlargement to the literal meaning of the title of a law, and there are numerous precedents that will justify us in saying that the title of this act, 'to prohibit the keeping of places of resort,’ etc., is substantially equivalent to 'for the suppression of places of resort,’ etc. (Cooley’s Con. Lim. 141-150, and notes.)”

In the case of State v. Commissioners, 22 Nev. 399, 407, this court, by Bigelow, C. J., said: "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 deciding 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, 27 Am. Rep. 454; Ex Parte Livingston, 20 Nev. 287, and State v. Board, of Commissioners of Humboldt County, supra, 21 Nev. 235, of which *475we 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 unable to uphold the validity of the acts then under consideration; while, on the other hand, the cases of State v. Silver, supra, 9 Nev. 227, 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.”

See, also, State v. Commissioners, 17 Nev. 96, 102; State v. Atherton, 19 Nev. 332, 345; State v. Commissioners, 21 Nev. 235, 239.

The case of Brooks v. People, 14 Colo. 413, 24 Pac. 553, cited and quoted from in State v. Gibson, supra, may, and we think does, give a too restricted construction to the constitutional provision in question, and is not in entire harmony with the uniform liberal construction adopted by this and other courts generally. The rule laid down by the Colorado court in the Brooks case supported our contention, but went further and to an extreme which was not necessary to a determination of the G-ibson case, the opinion in which, taken as a whole, is in line with the uniform views expressed by this court. The question presented in the G-ibson case was practically identical with that in State v. Commissioners, 22 Nev. 399, supra.

The petition for rehearing is denied.