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Wren v. Dixon

October 1916

MARY WREN, ADMINISTRATRIX OF THE ESTATE OF THOMAS WREN, DECEASED; MARY WREN, AND THOMAS WREN, JR., AND MARIE WREN, MINORS, BY THEIR GUARDIAN AD LITEM, L. F. THOMAS, APPELLANTS, V. THOMAS DIXON, RESPONDENT.


Appeal from Third Judicial District Court, Eureka County; Peter Breen, Judge.

Sweeney & Morehouse, for Appellants.

Chas. B. Henderson, Carey Van Fleet, and E. E. Caine, for Respondent.

By the Court, McCarran, J. (after stating the facts):

As we view the case at bar, it presents two questions of primary importance: First, in view of the provisions of section 1 of article 10 of the constitution of this state as amended in 1906 (Stats. 1907, p. 501), was the assessment made in 1909 by the assessor of Eureka County of $10 per acre on the patented mining claim of Thomas Wren, deceased, a valid assessment, and incidental to this, were the certificate of sale and deed made to the defendant Dixon valid instruments? Second, is the action barred by the statute of limitations? We shall approach these questions in the order stated.

1, 2. At the outset, let us bear in bind that it was not until after the constitutional amendment of 1902 that mining claims were at all assessable in this state. The amendment to the constitution adopted that year provided for the assessment of patented mining claims at a valuation of $10 per acre. Pursuant to that particular amendment, and only pursuant thereto, the legislature of 1905 (Stats. 1905, p. 81) passed the act authorizing assessors to assess patented mines; and the statute in that respect points for its authority directly and specifically to the constitutional amendment adopted at the general election held on November 4, 1902. This statute took its constitutional authority and its operative vitality, so to speak, directly from the constitutional amendment providing for the assessment of patented mines at a flat valuation of $10 per acre.

It will be unnecessary for us to comment on or even conjecture as to the reasons that impelled the legislature of 1903 to take the initial step in setting aside this particular amendment to section 1 of article 10 of the constitution; suffice it to say that it passed another amendment to that section and article of the constitution, which at its adoption at the general election of

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1906 struck completely, nullified, and set aside this former provision.

Section 1 of article 10 of the constitution (Rev. Laws, 352) after its adoption in 1906 provided:

“The legislature shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property real, personal, and possessory, except mines and mining claims, when not patented, the proceeds alone of which shall be assessed and taxed, and when patented, each patented mine shall be assessed at not less than five hundred dollars ($500) except when one hundred dollars ($100) in labor has been actually performed on such patented mine during the year [we italicize], in addition to the tax upon the net proceeds; and also exempting such property as may be exempted by law for municipal, educational, literary, scientific or other charitable purposes.”

It must be remembered that the assessment made by the assessor of Eureka County upon which taxes became delinquent and by reason of which certificate of sale and tax deed were ultimately issued to respondent was in 1909, some three years after the adoption of that amendment to section 1 of article 10 of the constitution last quoted. It is the contention of respondent here that inasmuch as no statute was enacted carrying out the provisions of this constitutional amendment until 1913, four years after the assessment of 1909, therefore the statute of 1905, enacted under the provisions of the former constitutional amendment providing for the assessment of patented mines on the basis of $10 per acre, was in full force and effect in 1909; and they support this contention by the assertion that the constitutional amendment of 1906, fixing the assessment of patented mines at not less than $500, was not self-executing and required some statute similar to that of 1913 to put the principle in operation.

Assuming the correctness of respondent's position as

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to the operative effect of the constitutional amendment of 1906, which question we deem unnecessary for determination, it does not to our mind strengthen their position as supporting the validity of the assessment made under the statute of 1905. It will not be contended that the statute of 1905 would have been operative or effective for any purpose under the constitution of this state before the adoption of the constitutional amendment of 1903. The statute of 1905 could only be effective under the authority of the amendment to the constitution of date last named. Moreover, the peculiar wording and phraseology of the statute of 1905 is not to be overlooked. This statute does not attempt in itself to direct by specified language the assessment of patented mines on the basis of $10 per acre. On the other hand, it studiously avoided such language and pointed directly to a section and an article of the constitution, naming the date of its adoption, as being the law upon which and by reason of which the statute itself would be mandatory on the several assessors requiring them to assess: “At the valuation placed upon them [patented mines] by section 1 of article 10 of the constitution of the State of Nevada as amended, etc.” Did this statute have operative vitality? Was it in force and effect after the section of the constitution upon which it rested for that vitality was by popular will abrogated and a new and irreconcilable policy thereby set up in its stead? Whatever might be said as to the force and effect of this statute up to the time of the adoption of the amendment of 1906, we are unable to find a rule that would give it operative force in the absence of a saving clause in the newly adopted constitutional provision or in some other clause of the constitution itself some three years after the adoption of the new constitutional provision, which was in itself inconsistent and irreconcilable with that statute.

Our position in this respect, based upon the doctrine as we find it established, may be bluntly expressed thus:

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The constitutional amendment of 1906, fixing a minimum valuation of $500 upon patented mines, absolutely nullified the statute of 1905, which, taking its authority from an abrogated constitutional amendment, fixed the valuation at the arbitrary figure of $10 per acre.

Statutes may be nullified, in so far as their future operation is concerned, by a constitution as well as by statute. (Cass v. Dillon, 2 Ohio St. 608.) Indeed, it would be strange if it were otherwise. The constitution is the direct, positive, and limiting voice of the people. It may establish a policy, fix a limit to legislation on a given subject, or prohibit specified acts as being performed by public servants. As said by Mr. Justice Thornton, in the case of Oakland Paving Co. v. Hilton:

“In fact it is the solemn declaration of the paramount organic law operating on all departments of the government, expressed in the clearest and strongest language of prohibition. No act can be done by any department contrary to its provisions. It is a law absolutely controlling the legislative, executive, and judicial departments of the government. It takes effect on laws already passed as well as to those to be enacted in the future.” (Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 Pac. 3.)

Our position here is based upon the doctrine which we find eminently supported by authority, to the effect that in the absence of a saving clause the adoption of a new constitution or the amendment of an old constitution operates to supersede and revoke all previous inconsistent, and irreconcilable constitutional and statutory provision and rights exercise thereunder, at least so far as their future operation is concerned. (6 R. C. L.)

The Supreme Court of the United States, in dealing with the question of the effect of federal constitutional amendments on the existing constitutions and statutes of the several states, speaking through Mr. Justice Harlan, in the case of Neal v. State of Delaware, 103 U. S. 370, 26 L. E.d 567, held, in substance, that the legal

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effect of the adoption of amendments to the federal constitution and the laws passed for their enforcement was to annul so much of the state constitution as was inconsistent therewith.

The State of Pennsylvania, in adopting a new constitution, incorporated the provision that all pre-existing laws not inconsistent with itself should continue in force. Prior to the adoption of this constitution, and prior to the establishment or ratification of the federal constitution, the State of Pennsylvania had a constitutional provision prescribing the requisites for the establishment of citizenship. The new constitution of Pennsylvania, passed after the act of Congress of 1799, is entirely silent on the subject of citizenship, save and except as it retained, by specific provision, pre-existing laws not inconsistent with itself. In the case of United States v. Villato, 2 Dall. 370, 1 L. Ed. 419, the matter before the United States Circuit Court for the District of Pennsylvania turned upon the question whether the prisoner indicted for treason had become a citizen of the United States in consequence of the oath taken and subscribed by him on the 11th day of May, 1793, under the provisions of the former laws and constitution of Pennsylvania. The question was decided on the existence or nonexistence of the former law of citizenship of that state after the adoption of the new constitution, which, although it contained the provision that all pre-existing laws should continue in force, was silent on the question of citizenship. One of the justices of the circuit court indulged in this language:

“The act of assembly is obviously inconsistent with the existing constitution of the state, and therefore cannot be saved by the general provision of the schedule annexed to it.”

Another of the justices applied the same rule in different language, thus:

“The only act of naturalization suggested, depends upon the existence or nonexistence of a law of Pennsylvania; and it is plain that upon the abolition of the old

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constitution of the state, the law became inconsistent with the provisions of the new constitution, and, of course, ceased to exist long before the supposed act of naturalization was performed.”

Here was a case in which a given subject, namely, citizenship, was specifically dealt with by a provision of the former constitution of the State of Pennsylvania. At the time of the enactment of the new constitution of that state, what might be termed a saving clause was incorporated therein, which saving clause would seem to keep in force and effect pre-existing laws not inconsistent with the new constitution. On the subject of citizenship, however, the new constitution made no mention; it was absolutely silent. The circuit court, in deciding the matter, specifically referred to the fact that the circumstances of the case rendered it unnecessary to inquire into the relative jurisdiction of the state and federal governments on the subject of citizenship, but decided the question rather in the light of the rule asserted in the quotations above set forth, and which by analogy we deem applicable here.

In the case at bar we find a former constitutional provision levying an arbitrary assessment in the way of taxation upon a specific character of property, and under the provisions of that constitution we find a statute enacted, which statute points to that constitutional provision for its operative force and effect. Some years later another constitutional provision is adopted dealing with the same subject as that dealt with in the former. The latter constitutional provision, however, not only nullifies, but absolutely abrogates and sets aside, the former constitutional provision; an under such conditions we are asked to hold in force and effect, without even the pretense of a saving clause, a statute enacted under the former constitutional provision, inconsistent with the latter. But the rule of law interwoven into the best-considered decisions is otherwise, and this rule is so well asserted and by such eminent authority that we cannot hesitate to apply it where, as

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here, it appears so applicable. (6 R. C. L.) Again, referring to the contention that the newly amended section of the constitution was not self-executing, we may say that, even though such contention be conceded, the provision was, however, prohibitory in its character, inasmuch as it negatived the idea of the assessment of patented mines on a basis of less than $500 in valuation.

The principle to be applied here is aptly illustrated in the decision of the Supreme Court of the United States in the case of Norton v. Board of Commissioners, 129 U. S. 479, 9 Sup. Ct. 322, 32 L. Ed. 774. The constitution of the State of Tennessee, prior to March 26, 1870, contained this general provision:

“The general assembly shall have power to authorize the several counties and incorporated towns in this state to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation.” (Const. 1834-35, art. 2, sec. 29.)

On the 8th day of February, 1870, the assembly of the State of Tennessee enacted a statute, under this provision of the constitution, authorizing the city of Brownsville to issue corporate bonds to the amount of $200,000 for railroad purposes, and further authorizing the corporate authority of the city of Brownsville to levy annually an assessment upon all the taxable property within the limits of the corporation sufficient to pay the annual interest on the bonds, and also to establish a sinking fund for the ultimate redemption of the bonds. On the 5th day of May, 1870, this constitutional provision of the State of Tennessee was by public vote amended by the addition of other sections, one of which provided:

“But the credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three-fourths of the votes

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cast at said election. Nor shall any county, city, or town become a stockholder, with others, in any company, association, or corporation, except upon a like election, and the assent of a like majority.”

Another section of the amendment read:

“All laws and ordinances now in force and in use in this state, not inconsistent with this constitution, shall continue in force and use until they shall expire, or be altered or repealed by the legislature.”

The question before the Supreme Court of the United States was as to the effect of the constitutional amendment upon the act of the legislature passed prior to the adoption of that amendment. A consideration of the reasoning therein resorted to by the learned Chief Justice of the Supreme Court of the United States, keeping in mind its applicability to the point under consideration here, aids us in making our position more lucid. It was there pointed out, in the opinion written by Mr. Justice Fuller, that the inhibition contained in the constitutional amendment was self-executing as an inhibition, and although it might require a new and additional act of the legislature to put the full force and effect of the constitutional provision into operation, nevertheless the constitutional provision itself negatived the idea of the very thing provided for in the former legislative act, and hence prohibited the municipality from proceeding thereunder. The court there laid special emphasis upon the fact that, even though the new constitutional provision in its entirety was not self-executing, the inhibition set up by the amendment was self-executing. Thus the statute enacted on the 8th day of February, 1870, by the assembly of the State of Tennessee, conferring power, under a former constitutional provision, to a municipality to perform a specific act, although neither amended nor repealed, was made inoperative because the very thing which it authorized the municipality to do was prohibited by the constitutional amendment of May 5 of the same year. The court there refers to the principle laid down in the cases of Concord v.

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Portsmouth Savings Bank, 92 U. S. 625, and Railroad Company v. Falconer, 103 U. S. 821, and draws attention to the distinction between the operation of a constitutional limitation upon the power of the legislature and of a constitutional inhibition upon the municipality itself. “In the former case,” says the court, “past legislative action is not necessarily affected, while in the latter it is annulled. Of course, if an entirely new organic law is adopted, provision in the schedule or some other part of the instrument must be made for keeping in force all laws not inconsistent therewith. * * * But such a provision does not perpetuate any previous law enabling a municipality to do that which it is subsequently forbidden to do by the constitution.”

So in the case at bar we say, assuming that parts of the constitutional amendment of 1906 required future legislation to put them in operation, that phase of the constitutional amendment of 1906 which established a minimum valuation to be placed as an assessment against patented mining claims specifically negatived the idea of a lesser valuation, and hence prohibited assessment of patented mining claims on the basis of $10 per acre. This prohibition was immediately self-executing, and required no statute to either emphasize its inhibition or to place it in operation. So the statute of 1905, which provided for an assessment of patented mines on the basis of a lesser valuation than that fixed specifically as a minimum by the constitutional amendment of 1906, although neither repealed nor amended by legislative act until 1913, became a nullity after the adoption of this constitutional amendment, inasmuch as its operation would be in direct contravention to the inhibition established by the amendment. It was undoubtedly the intention of the people of this state, when they adopted this constitutional amendment, to foster and encourage the mining industry of this state and to promote development of mineralized ground; and to that end they declared that patented mines should be exempt where the development or prospect work was

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performed thereon, at least to the extent of $100, and, where no such labor was performed, the patented mine should be assessed for not less than $500.

3. Mr. Cooley, in his work on Constitutional Limitations, says:

“The object of construction, as applied to a written constitution, is to give effect to the intent of the people in adopting it. In the case of all written laws, it is the intent of the law-giver that is to be enforced. But this intent is to be found in the instrument itself. It is to be presumed that language has been employed with sufficient precision to convey it, and, unless examination demonstrates that the presumption does not hold good in the particular case, nothing will remain but to enforce it.” (Cooley, Const. Lim. 6th ed. 69.)

The same principle may be found in application in the cases of People ex rel. Decatur & State Line Ry. Co. v. McRoberts, 62 Ill. 38, and Mitchell v. I. & St. L. R. R. & C. Co., 68 Ill. 286.

4. This court in the case of Goldfield Consolidated Mines Co. v. State, 35 Nev. 178, 127 Pac. 77, had under consideration the construction and application of section 1 of article 10 of the constitution as amended in 1906, and there held that, where $100 worth or more of labor has been expended on a patented mining claim during any one year and prior to the time of assessment, the mine is exempt from taxation except on the proceeds thereof.

Following the decision in that case, it may be said that this section of the constitution sets up two distinct negatives, i. e., first, a patented mine cannot be assessed at less that $500 if the labor has not been performed; second, a patented mine on which the labor has been performed cannot be assessed at either more or less than $500—”is exempt from taxation except on the proceeds thereof.” (Goldfield Consolidated Mines Co. v. State, supra.)

Counsel for respondent asks the question:

“Does this section of the constitution contain within

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its own terms a complete rule of conduct protecting the right of exemption for $100 worth of work done upon a patented mining claim?”

We may answer this by saying that in this respect it makes no difference, because, if the labor was performed, assessment for any sum was prohibited; hence the assessment in this case would be void. If labor was not performed, the assessment for a sum less than $500 was prohibited; hence, the assessment in this case would be void. The case presented here emphasizes the rule that prohibitory provisions in a constitution are usually self-executing.

It is apparent that in either event above referred to a patented mine cannot, under the provisions of this section of the constitution and in the light of the rule of this court in the Goldfield case, supra, be assessed for less than $500. Here was a new provision in the organic law of the state, one that set up a prohibition which in itself required no legislation to execute; one that negatived future legislation as to the matter covered by the prohibition; one that nullified, repealed, and set aside the future efficacy of then existing legislation, provisions of which were in contravention to this prohibition. Here was a constitutional provision which with no uncertainty limited the assessment of patented mines by fixing a minimum less than which no assessment was to be valid. It requires no further citation of authorities than those we have herein set forth to support the proposition that any act which came within the prohibition was void, and any statute which sought to continue a policy expressly prohibited by this constitutional provision, whether enacted prior or subsequent to the adoption of the constitutional amendment, was, in the absence of a saving clause in the constitution itself, nullified. There can be no question, as we view the situation, that the statute of 1905 providing for the assessment of patented mines on a basis which fell within the specific prohibition of the constitutional amendment of 1906 was after the adoption of that

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constitutional amendment nullified, repealed, and set aside as much so as though it had never existed.

5. The rule is stated and supported by authority that prohibitory provisions in a constitution are usually self-executing to the extent that anything done in violation of them is void. (6 R. C. L. 62; State ex rel. Delgado v. Romero, 17 N. M. 81, 124 Pac. 649, Ann. Cas. 1914c; 1114.) This doctrine was applied by the Supreme Court of California in a series of cases arising after the adoption of the new constitution of that state in 1879. The case of Oakland Paving Co. v. Hilton, supra, presents a question very much like that at bar, and it will be noted that in that case the court held that, when a constitutional provision is prohibitory in its language, no legislation is required to execute such provision; for it is then self-executing.

“Every constitutional provision,” says the court, “is self-executing to this extent, that everything done in violation of it is void.”

To the same effect we find the cases of McDonald v. Patterson, 54 Cal. 245; Donahue v. Graham, 61 Cal. 276; Ewing v. Oroville Min. Co., 56 Cal. 649.

Counsel for respondent, in a masterful presentation by way of exhaustive brief, cite us to many eminent authorities relative to the subject at hand: Griffin v. Rhoton et al., 85 Ark. 89, 107 S. W. 380; Marshall v. Sherman, 148 N. Y. 9, 42 N. E. 419, 34 L. R. A. 757, 51 Am. St. Rep. 654; Southern Express Co. v. Patterson, 122 Tenn. 279, 123 S. W. 353; Davis v. Burke, 179 U. S. 399, 21 Sup. Ct. 210, 45 L. Ed. 249; Willis v. Mabon, 48 Minn. 140, 50 N. W. 1110, 16 L. R. A. 281, 31 Am. St. Rep. 626: Model Heating Co. v. Magarity, 12 Boyce (Del.) 459, 81 Atl. 394, L. R. A. 1915b, 665; French v. Teschemaker, 24 Cal. 518. These authorities, as well as many ...


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