State ex rel. Flack v. Rogers

By tbe Court, EaRLL, J.: Tbe relator is tbe district judge of tbe ninth judicial district of this State, composed of tbe county of Elko, and tbe respondent is county recorder and ex officio auditor of said county, and tbis proceeding is instituted to compel tbe respondent as such auditor, to draw and deliver to tbe relator bis warrants upon tbe treasurer of said county, for the salary of .relator as such judge, for tbe months of January, February and March, 1875. Tbe petition of relator states that on the 29th day of April, 1875, relator, as such district judge, demanded of respondent, as such auditor, that be make out and deliver to relator bis warrants, at the rate of five thousand dollars per annum, which said warrants said auditor then and there refused, but offered and tendered to relator warrants upon the treasurer of said county for tbe pay and salary of relator for said months, as such district judge, at tbe rate of four thousand dollars per annum; and whether tbe salary incident to tbe office of judge of tbe ninth judicial district is five thousand dollars per annum, as claimed by tbe relator, or is four thousand dollars per annum, as claimed by respondent, is tbe question here presented. Tbe claim of the relator proceeds upon the theory that tbe two acts of the legislature, approved March 7, 1873, one of which being entitled “An act to amend an act entitled ‘An act to re-district tbe State of Nevada,’ approved Eeb321 ruary twenty-seventh, eighteen hundred and sixty-nine” (Stats. 1873, 170), and the other entitled “An act to redistrict the State of Nevada,” relate to the same judicial districts, and that the salary of the judge of the ninth judicial district provided in the respective acts, refer to, and were intended to apply to the judge of one and the same judicial district, and also, that both acts were designed to take effect and be in force concurrently; hence, it was argued, that the two acts were in conflict with and repugnant to each other. It is a well-settled rule that several statutes relating to the same subject-matter are to be taken together and comprised in the construction of them, and, if possible, they are to be so construed as to give to each a reasonable effect, agreeable to the intention of the legislature which passed them. Applying this rule to the construction of the two acts under consideration, we are unable to perceive any conflict between them; but on the contrary, are of opinion that they are clearly reconcilable with each other, and that effect may be given to each according to the obvious intention of the legislature. The first act referred to amends the third section of the general statute providing for the re-districting the State, passed February 27,1869 (Stat. 1869, 86-7), and re-enacted said section as amended, and when thus re-enacted, it took the place of the original section in said general statute. The provisions of the amended section, as well as those of the original, applied to the judges of the then existing judicial districts which were constituted by said general statute, and the supplementary and amendatory act thereto, of March 5, 1869 (Stat. 1869, 133). The salary provided for tho judge of the ninth judicial district by the amendatory act of March 7, 1873, was intended to apply to tho judge of said district, as constituted by said supplementary and amendatory act of March 5, 1869. This latter act declared that from and after the first Monday of January, 1871, the county of Elko should constitute the ninth judicial district, and that a judge thereof should be elected at the general [322] election of 1870; it also prescribed the terms of court to be held in said district, but failed to provide any salary for the judge thus to be elected; hence the object of providing the same by the amendatory act of March 7,1873. This amend-atory act, however, never had an independent operation, but existed only as a part of the general act of February 27, 1869, which, together with all amendments thereto, ceased to exist upon the taking effect of the subsequent act of March 7, 1873 (Stat. 1873, 145), providing for the redistricting the State. It is true, the latter act contains no express wordsmf repeal; but it is an established rule, “ that a revising statute which embraces all the provisions of antecedent laws relating to the same subject, virtually repeals the statutes revised, without any express provision to that effect.” (Smith’s Com. 904.) In the case of Bartlet et al. v. King, Ex'r (12 Mass. 545), the court stated the rule thus: “A subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must, on the principles of law as well as in reason and common sense, operate to repeal the former.” That the statute of March 7, 1873, re-districting the State, is within the rule thus stated cannot admit of a reasonable doubt. By the first section it is provided that: “From and after the first Monday in January, one thousand eight hundred and seventy-five, the State shall be divided into judicial districts as follows:” and after designating the several districts, and constituting the county of Elko the ninth judicial district, it proceeds: “For each of which districts a district judge shall be elected by the qualified electors thereof, at the general election in, the year A. D. one thousand eight hundred and seventy-four.” The terms of court in the respective districts thus constituted, are prescribed by the second section; and the salaries of the judges of the several districts are provided for by the third section thereof; the salary therein provided for the judge of the ninth judicial district being established at four thousand dollars per annum. It will thus be perceived that this statute em [323] braces tbe whole subject-matter of the statute of February 27, 1869, including all amendments thereto, and was evidently designed, upon taking effect, to be a substitute therefor. Besides, the relator was elected to the office of district judge under this act, and it therefore necessarily follows that his salary is governed by its provisions. It is therefore ordered that the petition of the relator be, and it is hereby dismissed.