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State v. Brodigan

December 31, 1914

STATE OF NEVADA, EX REL. GEORGE A. BARTLETT, PETITIONER, V. GEORGE BRODIGAN, AS SECRETARY OF STATE, RESPONDENT.


George A. Bartlett, in pro. per.

Geo. B. Thatcher, Attorney-General, for Respondent.

By the Court, McCarran, J.:

This is an original proceeding in prohibition wherein the petitioner, as a taxpayer of the State of Nevada, seeks to prohibit the secretary of state from issuing official certificates of nomination for the office of district judge to more than one person for each political party in any of the judicial districts in the State of Nevada, except the Second judicial district.

The legislature of 1913 (Stats. 1913, c. 144) seeking to redistrict the State of Nevada, and to increase the number of judicial districts, and to provide judges therefor, passed an act, the title of which is: “An act to create judicial districts in the State of Nevada, provide for the election of district judges therein, and to fix their salary, and to repeal all other acts in relation thereto.”

Section 1 of the act is as follows: “The State of Nevada is hereby divided into ten judicial districts. The counties of Storey, Douglas, and Ormsby shall constitute the First judicial district; the county of Washoe shall constitute the Second judicial district; the counties of Eureka and

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Lander shall constitute the Third judicial district; the county of Elko shall constitute the Fourth judicial district; the county of Nye shall constitute the Fifth judicial district; the county of Humboldt shall constitute the Sixth judicial district; the counties of Esmeralda and Mineral shall constitute the Seventh judicial district; the counties of Lyon and Churchill shall constitute the Eighth judicial district; the county of White Pine shall constitute the Ninth judicial district; and the counties of Lincoln and Clark shall constitute the Tenth judicial district. For each of said districts judges shall be elected by the qualified electors thereof at the general election in the year 1914, and every four years thereafter, except as otherwise provided in this act, as follows: For each of said districts, except the Second judicial district, there shall be [elected one judge. For the Second judicial district there shall be] two judges elected.”

The words enclosed in the brackets in the foregoing section, it is admitted, were placed there by the compiler of the Statutes of 1913. The section in the enrolled bill as signed by the governor did not contain the words enclosed in the brackets. The last sentence of section 1 of the enrolled bill, which received the signature of the governor, was as follows: “For each of said districts, except the Second judicial district, there shall be two judges elected.”

The words enclosed in brackets were undoubtedly omitted from the enrolled bill by mistake.

Section 3 of the act is as follows: “The salary of each judge herein elected, or appointed to fill vacancies whenever such vacancies shall occur, shall be four thousand dollars per annum, except the judge of the Fourth judicial district whose salary shall be four thousand five hundred dollars per annum, and the judge of the Fifth judicial district whose salary shall be six thousand dollars per annum, and the judge of the Seventh judicial district whose salary shall be four thousand five hundred dollars per annum, and the judge of the First judicial district, whose salary shall be three thousand dollars per

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annum; all of said salaries to be paid in equal monthly installments out of the district judges' salary fund, hereby created in the state treasury, which fund shall be supplied in the manner following, to wit: * * *”

Section 4 of the act is as follows: “The Second judicial district shall be entitled to and shall have two district judges; they shall have concurrent and coextensive jurisdiction within said district, under such rules and regulations as may be prescribed by law, and they shall have power to make such rules and regulations as will enable them to transact judicial business of said district in a convenient and lawful manner.”

[1] It is the desire of the petitioner, as well as that of respondent secretary of state, that a construction be placed upon this act by this court. By a line of decisions this court has established the rule that we will not look beyond the enrolled bill in the office of the secretary of state in order to ascertain the terms of the law. (State of Nevada, ex rel. Chase, Relator, v. Rogers, 10 Nev. 250, 21 Am. Rep. 738; State v. Swift, 10 Nev. 176, 21 Am. Rep. 721; State v. Glenn, 18 Nev. 34, 1 Pac. 186; State v. Nye, 23 Nev. 99, 42 Pac. 866; State v. Beck, 25 Nev. 68, 56 Pac. 1008; State v. Howell, 26 Nev. 93, 64 Pac. 466.)

[2] Were we inclined to modify the rule heretofore laid down and followed by this court, limiting our inquiry to the enrolled bill, the matter would present little or no difficulty, but, even were we inclined to modify that rule, such would be unnecessary in this instance. It is the province of the courts to give effect and construction to legislative enactments at least to the extent to which the legislative intent may be made operative by a fair and liberal construction of the language used in the act. It is not within the province of the courts to assume the powers or functions which properly belong to the legislature to the extent of either enacting laws or supplying defective enactments with language sufficient to make them operative for a presumed purpose, unless, from the reading of the entire act, the purpose and intent is made manifest, in which instance courts are warranted in

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supplying sufficient language to carry out the purpose and intent of the legislature to the end that the law may be made operative for the purpose for which it was intended by the legislative body.

From the reading of sections 3 and 4 of the act under consideration, the error in section 1, made by way of omission, is manifest. Moreover, from sections 3 and 4 the purpose and intention of the legislature is made clear. In this statute, as appears from the enrolled bill, there is an apparent conflict or ambiguity, as between the provisions of the last sentence of section 1 and the provisions of sections 3 and 4. As from the enrolled bill now on file in the office of the secretary of state conflicting provisions appear, it is necessary to construe the entire act together to ascertain, if possible, the true legislative intent.

[3-5] Under the rules of statutory construction the court may consider prior existing law upon the subject under consideration and may consider the purpose of the changes sought to be effected, as the same may be deduced from a consideration of the whole subject-matter. Courts take judicial notice of the general conditions in a state, and, where the legislature has adopted a statute, the several provisions of which present an ambiguity, in endeavoring to arrive at the true legislative intent, courts will consider that the legislature in changing a prior law did so in view of conditions existing in the state that are within the common knowledge of all. Unless the language used in a statute was so clear as to leave no room for construction, this court would not be warranted in attributing to the legislature an intent to double the number of district judges in the state, thereby entailing a great additional expense upon the people for the next four years, where no possible condition existed warranting such an ...


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