been broad enough to include both classes of state officers in one act; but, having adopted a limited title for each, and passed separate acts, it was not within the power of any subsequent legislature to amend the title of either act so as to include the matters legitimately pertaining to the other.

Under the provisions of the constitution, is it not made clear that the legislature of 1881, under the title "fixing the salaries of the justices of the supreme court," could not have embodied any provision in that act relating to the salaries of any other state officers, because the title was limited to the subject therein named? Is it not equally as plain that the legislature of 1881, in passing the act "reducing and regulating the salaries and compensation of certain state officers," did not intend to include justices of the supreme court or any state officers than those named in the body of the act? If this be true, then does it not logically follow that, in amending the act of 1881, the legislature would have no power to include any class of state officers not named in the original act?

"As the legislature may make the title to an act as restrictive as they please, it is obvious that they may sometimes so frame it as to preclude many matters being included in the act which might with entire propriety have been embraced in one enactment with the matters indicated by the title, but which must now be excluded because the title has been made unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are vested with no dispensing power. The constitution has made the title the conclusive index to the legislative intent as to what shall have operation. It is no answer to say that the title might have been made more comprehensive, if in fact the legislature have not seen fit to make it so." Cooley, Const. Lim. 149.

The manner and methods pursued in preparing the so-called amended act of 1885 are extremely reprehensible, and have always been universally condemned. The constitutional provisions were either overlooked or intentionally ignored. The legislature did not properly refer to the act "approved February 21, 1881." The title of that act is essentially different from the title of the act specified in the amended act. The constitution declares that "no law shall be revised or amended by reference to its title only." This provision does not authorize the legislature to dispense with a reference to the title of the act sought to be amended. It was intended by the framers of the constitution that, in the revision or amendment of a statute, "the title of the act to be amended should be referred to." Feibleman v. State, 98 Ind. 520.

The proper method of complying with this clause of the constitution would be to correctly copy the title of the act referred to. If any other course is pursued, it might lead to endless confusion and uncertainty, which, among other things, the constitutional provision intended to prevent. This is made plain by reading the entire section of the constitution. In order to comply with its provisions not only must the title of the act to be amended be referred to, but the sections "as amended shall be re-enacted and published at length." If the title of the original act had been correctly copied, (leaving out “justices of the supreme court, ") then section 8 of the amended act of 1885, which relates exclusively to the salary of the justices of the supreme court, would have to be declared unconstitutional, because the title of the original act only embraced certain state officers and attaches of the state government, and, as before stated, the justices of the supreme court were not named in the act. We have already shown that an amendatory act cannot include any other subject than that embraced in the act to be amended, and "matter properly connected therewith." Therefore, if the words "justices of the supreme court" could be treated as surplusage, and stricken out of the title of the amended act, it would be our duty to declare all of the provisions of the amended act relating to the salary and compensation of the state officers and attaches of the state government named in the act of 1881 valid, and section 8, relating v.12p.no.17-53

to the salary of the justices of the supreme court, void. State v. Bankers, etc., Ass'n, 23 Kan. 501; Burlington & M. R. R. Co. v. Saunders Co., 9 Neb. 511; S. C. 4 N. W. Rep. 240; Wisner v. Mayor of Monroe, 25 La. Ann. 598; People v. Briggs, 50 N. Y. 565; Chiles v. Monroe, 4 Metc. (Ky.) 75; State v. Persinger, 76 Mo. 347; Stone v. Brown, 54 Tex. 340.

The substance of all the authorities which discuss the effect of the law in cases where the act is broader than the title is thus clearly stated by Judge Cooley: "But, if the act is broader than the title, it may happen that one part of it can stand because indicated by the title, while as to the object not indicated it must fail." Cooley, Const. Lim. 148.

If the provisions of the amendatory act of 1885 only related to matters that were included in the original act, then we would be authorized to treat the words "justices of the supreme court" as surplusage, and exclude them from the title; because in such a case it would clearly appear that no one had been, or could be, misled by the improper insertion of the words in the title. Mistakes and errors in the use of words, which are not calculated to mislead as to the subject of the act, will be regarded by the courts as mere clerical mistakes, in nowise impairing the validity of the law. School Directors Dist. No. 5 v. School Directors Dist. No. 10, 73 Ill. 249; Plummer v. People, 74 Ill. 363; City of Winona v. Whipple, 24 Minn. 65; State v. Lake City, 25 Minn. 404; State v. Elvins, 32 N. J. Law, 362; Comstock v. Judge of Superior Court, 39 Mich. 196; Wilson v. Spaulding, 19 Fed. Rep. 304; Walnut v. Wade, 103 U. S. 683.

But this is a different case. In the amended act under consideration, it is manifest that the words "justices of the supreme court" did not creep into the title innocently, or by any mere clerical mistake or inadvertency. They were inserted purposely and designedly. It was a premeditated attempt to embody in one act amendments to two different and distinct acts, relating to different subjects, by adding to the title of one act the subject-matter of the other, so that one might be used as an inducement for the passage of the other. Its tendency and evident design was to impose upon the members of the legislature by injecting the words "justices of the supreme court" into the middle of the title in such a manner as to lead them to believe that the words were embodied in the title of the original act, and was a part of the statute sought to be amended; whereas, the truth was that the act fixing the salary of justices of the supreme court had no connection whatever with it. One of the objects of the constitutional provision was to avoid and prevent just such legislation as was attempted to be accomplished in this case.

"The practice of bringing together into one bill subjects diverse in their nature, and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the state. * * * The framers of the constitution meant to put an end to legislation of the vicious character referred to, which was little less than fraud upon the public, and to require that in every case the proposed measure should stand upon its own merits, and that the legislature should be fairly satisfied of its design when required to pass upon it." People v. Mahaney, 13 Mich. 494.

"The object of this constitutional provision is obvious and highly commendable. A practice had crept into our system of legislation, of ingrafting upon subjects of great public benefit and importance, for local or selfish purposes, foreign and often pernicious matters; and rather than endanger the main subject, or for the purpose of securing new strength for it, members were often induced to sanction and actually vote for such provisions, which, if they were offered as independent subjects, would never have received their support. In this way, the people of our state have been frequently inflicted with evil and injurious legislation. * * To remedy such and similar evils was this

*

provision inserted into the constitution, and we think wisely inserted." Davis v. State, 7 Md. 160.

All the authorities upon this subject are substantially to the same effect. State v Silver, 9 Nev. 231; State v. County Com'rs, 19 Nev. --; S. C. 10 Pac. Rep. 901; Sun Mut. Ins. Co. v. Mayor of New York, 8 N. Y. 253; Stewart v. Father Matthew Soc., 41 Mich. 72; State v. McCracken, 42 Tex. 385; Walker v. Caldwell, 4 La. Ann. 297; State v. Town of Union, 33 N. J. Law, 352; State v. Ranson, 73 Mo. 78; Cooley, Const. Lim. 142, and authorities there cited.

In State v. Lancaster Co., 17 Neb. 85, S, C. 22 N. W. Rep. 228, where the legislature in the title of an amended act, also inserted an additional object to repeal other provisions of the statute having no relation to subjects embraced in the original act, the court declared that the attempted repeal was a nullity, but held the other portions of the act valid upon the ground "that the invalid portion did not have, and could not have had, the effect to induce the legislature to pass the amendment in question;" but, in this connection, the court expressly declared that the rule would be different in cases "where it is impossible, from an inspection of the act itself, to determine which part of the act is void and which valid.

In the present case it is evident that one portion of the act was specially designed as an inducement to pass the other, and it is impossible for us to determine, from an inspection of the act itself, which portion, if either, would have passed without the other. It therefore becomes our plain and imperative duty to declare the entire amendatory act of 1885 absolutely null and void.

"If the title to the act actually indicates, and the act itself actually embraces, two distinct objects, when the constitution says it shall embrace but one, the whole act must be treated as void, from the manifest impossibility in the court choosing between the two, and holding the act valid as to the one and void as to the other." Cooley, Const. Lim. 148. See, also, Davis v. State, supra; People v. Hills, 35 N. Y. 452.

Let the writ issue as prayed for in relator's petition.

(19 Nev. 391)

STATE ex rel. STEVENSON v. TUFLY.

(No. 1,260.

(Supreme Court of Nevada. February 3, 1887.)

CONSTITUTIONAL LAW-AMENDMENT-ENTRY ON JOURNALS OF LEGISLATURE.

Where an amendment was proposed to the constitution of Nevada, authorizing the investment of moneys pledged to educational purposes in the bonds of any of the states of the United States, and no entry of the same was made upon the journal of either house of the legislature, the omission was held fatal to the adoption of the amendment.

Application for mandamus.

The Attorney General, for relators. Wm. M. Stewart, for respondent.

BELKNAP, J. This is an amicable proceeding brought for the purpose of testing the validity of an amendment to the constitution authorizing the investment of moneys pledged to educational purposes, in the bonds of any of the states of the United States.

Section 1 of article 16 of the constitution prescribes how amendments may be made without calling a convention. It reads as follows: "Any amendment or amendments to this constitution may be proposed in the senate or assembly; and, if the same shall be agreed to by a majority of all the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their respective journals, with the yeas and nays taken thereon, and referred to the legislature then next to be chosen, and shall be published for three months next preceding the time of making such

choice. And if, in the legislature next chosen as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people in such manner, and at such time, as the legislature may prescribe; and, if the people shall approve and ratify such amendment or amendments by a majority of the electors qualified to vote for members of the legislature voting thereon, such amendment or amendments shall become a part of the constitution."

At the eleventh session of the legislature, the following proposed amendment was agreed to:

"Resolved by the assembly, the senate concurring, that section three of article 11 of the constitution of the state of Nevada be amended so as to read as follows:

"Sec. 3. All lands, including the sixteenth and thirty-sixth sections in every township, donated for the benefit of public schools in the act of the thirtyeighth congress to enable the people of the territory of Nevada to form a state government; the thirty thousand acres of public lands granted by an act of congress approved July 2, A. D. 1862, for each senator and representative in congress; and all proceeds of lands that have been or may hereafter be granted or appropriated by the United States to this state, and also the five hundred thousand acres of land granted to the new states under the act of congress distributing the proceeds of the public lands among the several states of the Union, approved A. D. 1849, provided that congress make provisions for or authorize such diversion to be made for the purpose herein contained; all estates that may escheat to the state; all of such per cent. as may be granted by congress on the sale of lands; all fines collected under the penal laws of this state; all property given or bequeathed to the state for educational purposes; and all proceeds derived from any or all said sources,-shall be, and the same are hereby, solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses, and the interest thereon shall from time to time be apportioned among the several counties in proportion to the ascertained number of the persons between the ages of six and eighteen years in the different counties, and the legislature shall provide for the sale of floating land-warrants to cover the aforesaid lands, and for the investment of all proceeds derived from any of the above-mentioned sources, in United States bonds or bonds of this state, or the bonds of such other state or states as may be selected by the boards authorized by law to make such investments: provided, that the interest only of the aforesaid proceeds shall be used for educational purposes, and any surplus interest shall be added to the principal sum: and provided, further, that such portions of said interest as may be necessary may be appropriated for the support of the state university."

No entry of the proposed amendment was made upon the journal of either house, and the question presented is whether or not this omission was fatal to the adoption of the amendment.

An inquiry based upon similar facts and constitutional provisions was recently presented to the supreme court of Iowa. In pronouncing the amendment invalid, the court employed the following language, which we adopt: "The object of the provision [entering the amendment upon the journals] cannot be doubted or misunderstood. It is to preserve, in the manner indicated, the identical amendment proposed, and in an authentic form, which, under the constitution, is to come before the succeeding general assembly. No better mode could have been adopted, when it is considered that, to be effective, the proposed amendment must be agreed to by the succeeding general assembly. This thought is much strengthened by the consideration that the proposed amendment is only required to be entered on the journals of the first general assembly which acts thereon. This distinction, to our minds, is significant, and enhances the importance of the constitutional injunction that

the proposed amendment shall be entered on the journals of both houses of the general assembly which first agrees thereto." Koehler v. Hill, 60 Iowa, 543; S. C. 14 N. W. Rep. 738, and 15 N. W. Rep. 609.

The court considered the omission fatal, notwithstanding a vote of the people had approved the proposed amendment, and declared that, if any provision of the constitution should be regarded as mandatory, it is when it provides for its own amendment.

* * *

The remarks of Judge Cooley made in considering the construction to be placed upon constitutional provisions are pertinent and instructive. He says: "In all we have said upon this subject, we have assumed the constitutional provision to be mandatory. The fact is this: That whatever constitutional provision can be looked upon as directory merely, is very likely to be treated by the legislature as if it were devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And, if the legislature habitually disregarded it, it seems to us that there is the more urgent necessity that the courts should enforce it. And it also seems to us that there are few evils which can be inflicted by a strict adherence to the law so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed." Cooley, Const. Lim. 183.

"In Collier v. Frierson, 24 Ala. 108, it appeared that the legislature had proposed eight different amendments to be submitted to the people at the same time. The people had approved them, and all the requisite proceedings to make them a part of the constitution had been had, except that, in the subsequent legislature, the resolution for their ratification had by mistake omitted to recite one of them. On the question whether this one had been adopted, we quote from the opinion of the court: The constitution can be amended in but two ways,-either by the people, who originally framed it, or in the mode prescribed by the instrument itself. If the last mode is pursued, the amendments must be proposed by two-thirds of each house of the general assembly; they must be published in print at least three months before the next general election for representatives; it must appear from the returns made to the secretary of state that a majority of those voting for representatives have voted in favor of the proposed amendments; and they must be ratified by two-thirds of each house of the next assembly after such election, voting by yeas and nays, the proposed amendments having been read at each session three times on three several days in each house. We entertain no doubt that, to change the constitution in any other mode than by a convention, every requisition which is demanded by the instrument itself must be observed, and the omission of any one is fatal to the amendment. We scarcely deem any argument necessary to enforce this proposition. The constitution is the supreme and paramount law. The mode by which amendments are to be made under it is clearly defined. It has been said that certain acts are to be done, certain requisitions are to observed, before a change can be effected. But to what purpose are those acts required, or those requisitions enjoined, if the legislature or any department of the government can dispense with them? To do so would be to violate the instrument which they are sworn to support, and every principle of public law and sound constitutional policy requires the courts to pronounce against any amendment which is not shown to have been made in accordance with the rules prescribed by the fundamental law.'" Cooley, Const. Lim. 40.

At the last general election a majority of the electors of the state ratified