State v. Commissioners Elko Co. , 21 Nev. 19 ( 1890 )

The facts sufficiently appear in the opinion. This is an application for mandamus to compel respondents to act upon relator's claim for fifty dollars for one month's compensation as county superintendent of schools. In 1885 the legislature passed "an act regulating the compensations of county officers in the several counties of this state, and other matters relating thereto" (approved March 11, 1885). Section 5 of this act fixed the compensation of all the county officers of Elko county, and, among other things, provided that the sheriff "shall receive such fees as are allowed under the provisions of an act * * * approved February 27, 1883," (Stat. 1883, 56); that "the district attorney shall receive two thousand dollars per annum," and that "the superintendent of schools shall receive six hundred dollars per annum." In 1887 the legislature passed "an act relating to and consolidating certain county offices in the state of Nevada" (approved February 23, 1887). This act reads as follows:

"Section 1. On and after the first Monday in January, A. D. 1889, the district attorneys, in addition to their respective duties, shall be ex-officio superintendent of schools within their respective counties, without additional compensation. Sec. 2. There shall be no county superintendent of schools elected in this state, except as provided in section one of this act. Sec. 3. All acts and parts of acts in conflict with the provisions of this act are hereby repealed." (Stat. 1887, 73.) At the same session the legislature, to-wit, March 5, 1887, amended section 5 of the act approved March 11, 1885, in so far as it fixed the compensation of sheriff, so as to read that "the sheriff of Elko county shall receive four thousand ($4,000) dollars per annum, which sum shall be compensation in full for all services rendered," and re-enacted the original clauses relating to the offices of district attorney, superintendent of schools and other offices. (Stat. 1887, 125.)

Relator was elected district attorney at the general election held in 1888. His term of office commenced on the first Monday in January, 1889, and he then became, under the provisions of the act approved February 23, 1887,ex-officio superintendent of schools of Elko county. He claims that under the provisions of the amendatory act approved March 5, 1887, he is entitled, in addition to his compensation as district attorney, to a salary of six hundred dollars per annum as superintendent of schools.

At the time of the passage of the original act of March 11, 1885, the office of superintendent of schools was an elective office, independent, separate, and distinct from the office of district attorney. There is no conflict between the two statutes passed in 1887. The act approved February 23 consolidated the offices of district attorney and superintendent of schools. It provided that they should, after the first Monday in January, 1889, be held by one person, to be elected as district attorney, and to receive the compensation allowed by law to that office, and, in addition to his duties as district attorney, to perform the additional duties of superintendent of schools, "without additional compensation." The subsequent amendatory act, approved March 5, has no reference whatever to the subject matter of the prior act of February 23, but relates exclusively to the act approved March 11, 1885, and was passed for the sole purpose of changing the compensation of the sheriff from fees to a salary.

Under the constitution of this state, no act of the legislature could be "amended by reference to its title only, but in such case the act as revised, or section as amended, shall be re-enacted and published at length." (Article IV, Sec. 17.) In order to make the desired change in the compensation of the sheriff, the legislature, in pursuance of this constitutional provision, re-enacted all the other provisions contained in section 5 of the act of March 11, 1885. The object and purpose of the act of March 5, 1887, being entirely foreign and distinct from that of the act of February 23, 1887, it necessarily follows that the claim of relator that the amendatory act of March 5th, being the later act, repealed the former act of February 23d, requiring the district attorney to perform the duties of superintendent of schools without compensation, by implication, is utterly devoid of any merit whatever. The intention of the legislature in the passage of these acts, is so clear, plain, positive and certain that a reference to the statutes is all that is needed to decide the question.Mandamus denied.