County of Ormsby v. State

•By the Court, Whitman, J.: This action was for the recovery of a balance claimed to be due for the rent of certain premises, the property 'of Ormsby County, occupied by the State of Nevada. The authority for the suit is said by respondent to be found in the Act entitled “ An Act to enable a certain class of claimants against the State to appeal to the Courts,” which provides: Sec. 1. Any officer or person who has presented a claim against the State, for services or advances authorized by law, and for which an appropriation has been made, but of which the amount has not been fixed by law, to the Board of Examiners, which claim said Board or the State Controller has refused to audit -and allow in whole or in part, may commence an action in any Court of Ormsby County having jurisdiction of the amount, for the recovery of such portion of the claim as shall have been rejected. In such action the State of Nevada shall be named as defendant, and the summons shall be served upon the State Controller, and the action shall proceed as other civil actions to final judgment. (Stats. 1869,104.) To the complaint a general demurrer was interposed, and also a motion to dismiss for want of jurisdiction; both were overruled, and defendant declining to answer, judgment went as prayed. The only point made upon demurrer or motion was, that respondent was not of the class specified in the statute, because rent could not be included in either of the terms used, i. e., “ services ” or “ advances.” It is conceded that it cannot come within the meaning of the former word, but respondent contended that it may, and does, clearly come within the meaning of the latter. The special point of dispute is as to the proper meaning in -the Act of the word “ advances ” ; appellant seeking to confine its signification to the strict legal definition, and respondent claiming its more proper usage. [286] The rule of construction, as laid down by Mr. Sedgwick, is as follows: “ When technical words occur in a statute, they are to be taken in a technical sense, unless it appears that they were intended to be applied differently from their ordinary or legal acceptation.” (Sedgwick, Stat. and Const. Law, 261.) So, Mr. Kent: “ The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense, unless it clearly appears from the context, or other parts of the instrument, that tKe words were intended to be applied differently from their ordinary or their legal acceptation.” (1 Kent’s Com., Sec. 462. See also Clark vs. City of Utica, 18 Barb. 451; Mallan vs. May. 13 M. and W. 511.) It is possible that the statute in question, upon close investigation, might fall within the general rule as quoted; but that rule, although supported by the highest authority, is, as experience has proved, of dangerous application. The cases where a Court should exercise the right given under it, should be of the clearest; as when a Court takes one step outside the literal wording of a statute, to declare what otherwise or otherwhere appears, there arises at once the possibility, if not the probability, of that assumption of power — -judicial legislation — a thing to be most cautiously avoided under the true theory of our Government — National and State. There is, though, always this distinction to be observed in settling the meaning of technical words, or words having a peculiar legal signification, when they occur in a statute. Such words, when used with reference 'to the particular subject as to which they have a special meaning, should receive that and no other; but if used generally, the natural conclusion is, that the popular meaning is the one intended. As for instance, a statute touching Courts and legal process is to be held to speak technically when using legal phrases; so one relating to military matters and using words having a received military sense; so in matters of art and science; and so the present statute, had it treated of principal and agent, would necessarily have used the word “ advances ” in a legal sense; but when it is remembered that in law, advances are only recognized as matters running between principals and agents, and when it is [287] seen that the statute is not treating of these, then it follows that this special and peculiar meaning is not to be adopted, but the ordinary popular meaning is to be taken not only as correct, but as the only one which could have been intended. Now, if under such signification the claim of respondent could be included, then it follows that its judgment should be sustained. Popularly, almost numberless advances are spoken of by general good use. There are those hostile, friendly, social, amatory, business, pecuniary; and, now specially touching this case, Webster gives the definition: “ A furnishing of money or goods for others, in expectation of reimbursements ; or the property so furnished.” So, Mr. Worcester gives as one meaning of the verb “ to advance,” “ to furnish on credit.” Within these definitions the claim of respondent clearly falls. It was advanced to the appellant upon a contract, and upon a credit, and with the expectation of reimbursement ; a something of legal and commercial value; the use and occupation of certain .premises. The right, then, to use and occupy, and the actual use and occupation, created the relation of landlord and tenant, and imposed upon the latter an obligation to pay the former the agreed rent; or in absence of any express agreement, what the use and occupation enjoyed might be reasonably worth. The judgment-of the District Court is affirmed.