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Worthington v. District Court

April 1914

ALFRED WORTHINGTON, RELATOR, V. THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE STATE OF NEVADA, AND HON. T. F. MORAN, JUDGE OF SAID COURT, RESPONDENTS.


Sweeney & Morehouse, W. D. Jones, and N. J. Barry, for Petitioner.

A. A. Heer, S. Summerfield, R. G. Withers, Prince A. Hawkins, George S. Brown, John S. Orr, and L. A. Gibbons, for Respondents.

H. D. Danforth, amicus curiae.

By the Court, Talbot, C. J.:

Petitioner applies for a writ of mandate commanding the Honorable T. F. Moran, judge of the Second judicial district court, to issue an order for the publication of summons in the action of Alfred Worthington, Plaintiff, v. Cecelia Worthington, Defendant, for divorce, which was brought in that court on the 11th day of February, 1914.

It is alleged that the petitioner filed his verified complaint in that case, stating two causes of action, in conformity with the laws of this state relating to marriage and divorce; that the summons and certified copy of complaint could not be served personally upon the defendant because she resides, and for along time has resided, in the city of Daly, San Mateo County, State of California, and is not now, and never has been, a resident of the State of Nevada. Petitioner made and presented to the district judge an affidavit setting forth these facts, and stating that on the 20th day of July, 1913, he became,

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and ever since has been, a resident of Washoe County, State of Nevada; that he needed an order in conformity with the laws of this state authorizing the publication of the summons and the deposit of a certified copy of the complaint and summons in the postoffice at Reno, addressed to the defendant at her place of residence, with the postage thereon prepaid, so that she might be notified of the action.

The district judge refused to make the order for publication and service of summons, upon the ground that the petitioner had not been a resident of the county of Washoe, State of Nevada, for the full period of one year before the commencement of the action, and based his refusal upon section 22 of the act relating to marriage and divorce, as amended at the last session of the legislature by an act approved February 20, 1913, under the title: “An act to amend an act entitled ‘An act to amend an act entitled “An act relating to marriage and divorce,” approved November 28, 1861,' as approved February 15, 1875.”

This act provides:

“Section 1. Section twenty-two of said act is amended so as to read as follow:

“Sec. 22. Divorce from the bonds of matrimony may be obtained, by complaint under oath, to the district court of the county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be either the county in which the parties last cohabited, or in which the plaintiff shall have resided six months before suit be brought, for the following causes: First—Impotency at the time of the marriage continuing to the time of the divorce. Second—Adultery since the marriage, remaining unforgiven. Third—Wilful desertion, at any time, of either party by the other, for the period of one year. Fourth—Conviction of felony or infamous crime. Fifth—Habitual gross drunkenness, contracted since marriage, of either party, which shall incapacitate

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such party from contributing his or her share to the support of the family. Sixth—Extreme cruelty in either party. Seventh—Neglect of the husband, for a period of one year, to provide the common necessaries of life, when such neglect is not the result of poverty on the part of the husband which he could not avoid by ordinary industry. Provided, that when at the time the cause of divorce accrues, the parties shall not both be bona fide residents of the state, no court shall have jurisdiction to grant a divorce, unless either the plaintiff or the defendant shall have been a bona fide resident of the state for a period of not less than one year next preceding the commencement of the action.

“Sec. 2. All acts or parts of acts in conflict with this act are hereby repealed.

“Sec. 3. This act shall be in effect from and after the first day of January, 1914.”

(Stats. 1913, c. 10.)

The only change made by this amendment is the addition of the last sentence quoted in section 22, which begins with the word “Provided.” Otherwise the section is the same as the amendment of 1875, which was the same as section 22 of the act as originally passed by the first territorial session of the legislature in 1861 (Stats. 1861, c. 33), excepting that the amendment of 1875 (Stats. 1875, c. 22) shortened from two years to one year the time required for desertion and failure to provide.

Petitioner makes no objection to the act of 1875, but directs his batteries against the last amendment. It is said that there was no section 22 to amend in 1913, and that the legislature cannot inject into the statutes by the last amendment the jurisdiction of the court, not germane to the title.

Also, it is claimed that this act is in violation of the following provisions of the state constitution:

“All men are, by nature free and equal and have certain inalienable rights among which are those of enjoying

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and defending life and liberty; acquiring, possessing, and protecting property and pursuing and obtaining safety and happiness.” (Section 1, art. 1.)

“Each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title; and no law shall be revised or amended by reference to its title only; but, in such case, the act as revised, or section as amended, shall be reenacted and published at length.” (Section 17, art. 4.)

“The legislature shall not pass local or special laws * * * granting divorce.” (Section 20, art. 4.)

“In all cases enumerated in the preceding section, and in all other cases, where a general law can be made applicable, all laws shall be made general and of uniform operation throughout the state.” (Section 21, art. 4.)

It is further contended that the statute is in conflict with section 2, article 4, of the constitution of the United States, which provides that:

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states” —and of the fourteenth amendment, which specified that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[1] The objection that the amendment requiring one year's residence in certain cases to give the court jurisdiction in an action for divorce is not germane to the title is untenable. To sustain such a contention would be in effect saying that the provision of the act originally passed requiring six months' residence under certain circumstances was unconstitutional because under a similar title, and that divorces granted since the organization of the territory and state are void, resulting in

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many cases of bigamy, illegitimacy, and failure of inheritance.

We had occasion to examine similar objections to the sufficiency of titles to legislative acts in the cases of State v. State Bank and Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac. 567, and Ex Parte Ah Pah, 34 Nev. 283, 119 Pac. 770. In the former case we said:

“The main principles controlling these questions have been well-nigh settled by this and other courts. That section 17, article 4, of the constitution, providing that ‘each law enacted by the legislature shall embrace but one subject and matters properly connected therewith,' is mandatory must be conceded. In regard to this objection, we need only determine whether this action and the decree of the district court relate to matters germane to the subject expressed in the title of the act, or to what is properly connected therewith.”

In that case we held that “An act creating a board of bank commissioners, defining their duties, providing for the appointment of a bank examiner, prescribing his duties, fixing his compensation, providing penalties for the violation of the provisions of this act, and other matters relating thereto” (Stats. 1907, c. 119), although providing by section 10 for an action by the attorney-general against a banking corporation on the decision by the bank examiner and commissioners that it is unsafe for it to continue business, and that, if the court shall find it unsafe, it shall appoint a receiver, does not contravene the above constitutional provision.

[2] The title of the original and the two amendatory acts relate to marriage and divorce. Divorce, being the dissolution of the marriage relation, necessarily relates to marriage. The length of residence required before parties apply for a divorce, whether it be six months, or one year, or a longer or shorter period, necessarily pertains to divorce, and is a matter connected with the title of the act. The amendment is as free from constitutional objection as if it had been entitled an act relating to divorce, or an act relating to the jurisdiction of the

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district court. Many acts, such as the ones relating to crimes, punishments, civil practice, and criminal practice relate to numerous matters. It is sufficient if they relate to the subject briefly expressed in the title and anything properly connected therewith.

[3] The constitution of the state, adopted in 1864, provided that all territorial laws not repugnant to its provisions shall remain in force until altered or repealed. (Rev. Laws, sec. 386.) For nearly half a century the marriage and divorce act has been recognized by all the courts of this state as a valid existing law, and the marital rights of numerous parties have been settled according to its provisions. Where an act of the legislature has for a long period of years been enforced by the courts of a state, without its constitutionality being challenged, that fact may be considered a virtual recognition of its constitutionality. Courts seldom entertain questions of the constitutionality of an act so long and repeatedly recognized as valid in the adjudication of the most important relations and rights, and when the interpretation of the statute would lead to consequences most serious.

In the Tiedemann case, 36 Nev. 494, 500, 137 Pac. 824, this court treated the amendment of 1875 of section 22 of the marriage and divorce act as a part of the act of 1861, and not as a separate act, and referred to the act of 1913 as amendatory of section 22 of the original act. While the question was not specifically presented for consideration in that case, this view of considering amendatory statutes is well supported by the authorities.

[4] Under the title and language of the act of 1875, before mentioned, considered with the provision in section 19, article 4, of the constitution, that “no law shall be revised or amended by reference to its title only, but, in such case, the act as revised, or section as amended, shall be reenacted and published at length,” it is apparent that the legislature intended to amend section 22 of the original act relating to marriage and divorce. It is contended that the act of 1875 repealed section 22 of the original act, and that the act of 1913 is void, because it

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attempts to amend that section after it has been repealed. The unchanged part of a section amended is deemed to continue in force. From the title stating so and the language used, it is apparent that by the act of 1913 the legislature intended to amend the act of 1875. No language could have more definitely indicated this purpose. The “act as revised and section as amended” was “reenacted and published at length.” Each of the later acts is entitled “An act to amend,” and not “An Act to repeal.” The statement in section 2 of the act of 1913 that “all acts and parts of acts in conflict with this act are hereby repealed” is a stereotyped form, often unnecessarily used in bills. It has no effect, and may be regarded as surplusage. We think the act of 1875 should be considered as an amendment, as defined by lexicographers and scholars, and as it was intended, the same as such acts have been considered by legislatures and compilers of laws in this state, instead of a repeal, as ordinarily understood, of section 22 as originally passed. Sections 2 and 4 of our act relating to marriage and divorce were amended by an act approved March 5, 1867 (Stats. Sp. Sess. 1867, c. 51, p. 88), and in the subsequent amendment of these sections by the acts approved February 5, 1891 (Stats. 1891, c. 5), and March 6, 1899 (Stats. 1899, c. 35), the legislature, similarly as in other second amendatory acts, treated them as numbered sections of the original act, without reference to them as sections of the first amendatory act.

[5] As the act of 1913 reenacts at length, in compliance with section 17, article 4, the language designated as section 22 in the act of 1875, it must have been the intention to amend that section, and no other. But if it be conceded for the argument that the act of 1875 was a new act which repealed section 22, and that the act of 1913 ought to have specified that section 1, instead of section 22, was amended, it would still be clearly apparent that there was only a mistake in this reference to the section, and that the one reenacted at length, and none other, was intended to be amended. As often held, the

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intention of the legislature should govern, and clerical mistakes should be disregarded.

In New York, an act of 1883 (Laws 1883, c. 414) purported to amend section 16 of the act of 1856 (Laws 1856, c. 179), which, it was claimed, had been repealed by an act of 1864 (Laws 1864, c. 555). The court in People v. Canvassers, 143 N. Y. 84, 37 N. E. 649, held a different opinion as to the repeal, but concluded that, even if the act of 1856 was repealed as claimed, the amendatory act of 1883 was nevertheless valid. The court said:

“The enactment of this law is put into the form of an amendment of a law, which was standing upon the statute books, and whether that earlier law, by force of subsequent legislation, had become inoperative is wholly immaterial. The only question is: Has the legislature, in the enactment complained of, expressed its purpose intelligently and provided fully upon the subject? If it has, then its act is valid and must be upheld. That is the case here. The act of 1883 contains all that is provided for in the particular section of the act of 1856, and gives full power to the boards of supervisors with respect to the formation of school commissioners' districts. A law thus explicit and complete may not be disregarded or invalidated because of a possible mistake of the legislature with respect to the existence of the statute in amendment of which the act is passed. It is an enactment of a law, in any view.”

The Supreme Court of Massachusetts, in Commonwealth v. Kenneson, 143 Mass. 419, 9 N. E. 763, said:

“The defendant contends that Stats. 1886, c. 318, sec. 2, is inoperative, because it purports to be an amendment of the Pub. Stats. c. 57, secs. 5, 9, and he says that said section 9 was repealed by Stats. 1885, c. 352, sec. 6. The argument is that an amendment of a repealed statute is a nullity. * * * The intention of the legislature is plain that, after Stats. 1885, c. 352, took effect, instead of Pub. Stats. ...


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