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facto. By the provisions of an act to pro- , stitution, the said act of 1866 provided: vide for the publication and distribution of 'Sec. 12. At the general election in the year the Nevada Reports (St. 1883, p. 78, Comp. 1866, and at the general election every four Laws, $ 2599 et seq.), the clerk of the Su- years thereafter, the clerk of the Supreme preme Court was ex officio reporter of deci. Court shall be chosen by the qualified elec. sions, and for the duties imposed on the clerk tors of the state, and shall hold his office as such reporter, he was allowed a salary or for the term of four years from the first compensation of $600 per year. It was to Monday of January next after the election, compel the State Controller to issue to him and until his successor is qualified. The warrants for such salary or compensation as fact that the provision of the original section reporter of decisions, that proceedings in 32 of article 4, concerning the clerk of the mandamus were instituted by Howell. It Supreme Court, was left out of said section was the contention of the Attorney General as amended in 1889, in no manner affects the Yor the respondent in that case, that as the above provisions of the statute, and in no salary of the Secretary of State was fixed degree affects the constitutional character of by statute at $2,400 per annum, he could not the office of clerk of the Supreme Court." be paid any additional compensation, and to The question of the power of the Legisdo so would be in violation of section 9 of lature to consolidate, combine, or materially article 15 and of section 5 of article 17 of change or alter the conditions of constitu. the Constitution. Considering this contentional offices, in the absence of specific contion, after citing a number of authorities, the stitutional authority so to do, was not precourt said: “Under the above authorities, the sented, argued, or determined in the La offices of Secretary of State, of ex officio Grave Case, supra, nor was such question es. elerk of the Supreme Court, and the office of sential to a determination of that case. the reporter of the decisions of the Supreme Hence, that case is not conclusive of the Court are separate and distinct offices, and question presented in this case. It would their being vested in the same person does seem from a reading of the opinion in the not change their nature in this respect. If it La Grave Case, that the court in rende was permissible under the Constitution for | ing its opinion may have intended to be parthe Legislature to confer upon the Secretary ticular that the opinion should not be regardof State a separate and distinct office charg- ed as conclusive of any question of legislaed with separate and distinct duties, in no tive powers not presented or considered, for way naturally pertaining to the duties of the it said: "If it was permissible under the Secretary's office, and he performs these du- Constitution for the Legislature to confer ties, we are of opinion that there is no provi- | upon the Secretary of State a separate and sion of the Constitution that prohibits the distinct office charged with separate and disLegislature from providing for paying him tinct duties,

we are of opinion," for said services. Love v. Baehr, 47 Cal. etc. (See full quotation above.) 364."

It not infrequently happens that statutes In the opinion of the court on petition for are involved in cases considered by appel. a rehearing, was considered the further con- late courts and the provisions thereof are tention of the Attorney General that by the construed and enforced; no question being amendment of section 32, article 14, of the raised as to their validity. Subsequently, Constitution, supra, “the office of clerk of the when the same statutes are attacked, they Supreme Court, with all its attendant duties, may be, and often are, held to be void. It ceased to be a constitutional office, and, is a rule of almost universal application that without legislative creation then or thereaft- courts will presume statutes to be valid and er, ceased to exist as an office; that the Leg. will not consider a question affecting their islature has not attempted to create the office invalidity, unless essential to a determinaof clerk of the Supreme Court, or ex officio tion of the case. Such necessity did not apclerk of the Supreme Court since said pear in the La Grave Case. The Secretary amendment to the Constitution in 1889; that of State, Mr. Howell, was performing the there is not now any warrant or authority duties and exercising the functions of the of law for the existence of any such office or office of clerk of the Supreme Court and of officer under the Constitution or laws of this the ex officio office attached thereto, and state.” The court considered this contention was so recognized by the court and by the at length and called attention to other con- public. No one was contesting his right to stitutional provisions, especially those pro- hold the office, and, conceding the act to be viding that no judgment of the Supreme unconstitutional, it was sufficient color of Court should take effect and be operative authority to constitute him a de facto officer until the opinion of the court in such case and render his official acts valid. The same shall be filed with the clerk of said court situation has prevailed since the decision in (Const. § 8, art. 15); that the clerk of the the La Grave Case and still prevails. Supreme Court shall keep his office at the The La Grave Case is conclusive, however, seat of government (Const. § 12, art. 15), and upon one important point involved in the de. said: "In obedience to the requirements of termination of this case, to wit: The office said original section 32, article 4, of the Con-1 of clerk of the Supreme Court is & constitu.

tional office. This point is so thoroughly cov-, such services, and he may decline to perered by the opinion in that case that further form them, without any breach of his official consideration of it is unnecessary. This duty as Attorney General. If, however, he brings us to the question now presented for voluntarily performs them, he does not theredetermination, Did the Legislature have the by enlarge the scope of his official duties as power to combine or consolidate the offices a constitutional officer. By no compact beof clerk of the Supreme Court and Secretary tween him and the Legislature can his ofof State, or impose the duties of the former ficial duties as Attorney General be extendupon the latter? If these two offices may be ed beyond the limits contemplated by the combined, where is the prohibition in the Constitution.

If, however, he has Constitution that any other two constitution-performed a service which, under the Conal offices may not be combined, unless it be stitution, is wholly foreign to his office, and the provision requiring their election? If which is not and cannot become a part of the Constitution were amended, merely strik- his official duty as Attorney General, and if ing out the provision providing for their elec- the Legislature has seen fit to compensate tion, would that mere fact give the Legisla- him for this unofficial service, there is no ture power to combine and consolidate them constitutional impediment to hinder them as it saw fit?

from so doing." In speaking of the implied powers and du In the case of Melone v. State, 51 Cal. 549, ties of certain constitutional officers, the Su- the case of Love v. Baehr, supra, was folpreme Court of California in Love v. Baehr, lowed in the case of the Secretary of State cited, supra, by this court in the La Grave as ex officio, a member of the State Board of Case, said: “It is admitted that the Consti- Examiners. In the case of Green v. State, tution contains no express limitation on the same volume, page 577, the same rule was appower of the Legislature in this particular. plied to the office of State Controller. See, But we think a limitation is necessarily im- also, Lewis v. Colgan, 115 Cal. 535, 47 Pac. plied from the definition of the office. From 357; State v. Weston, 4 Neb. 234; Cornell v. the earliest period of our history as a na- Irvine, 56 Neb. 665, 77 N. W. 114; State v. tion, almost every state in the Union had a Roddle, 12 S. D. 433, 81 N. W. 980; BradSecretary of State, Controller, Treasurer, ley v. Esmeralda Co., 32 Nev. 104 Pac. and Attorney General; and the general na- 1058. ture of the duties pertaining to each were It will be observed from a reading of the perfectly well known to the framers of the Baehr Case, supra, that when a constitutionConstitution. It is clear beyond controversy al officer is by statute made ex officio anthat in establishing similar offices here, the other officer, the ex officio office is subordiframers of that instrument had reference to nate to the constitutional office to which he the same general class of duties, which was was elected, and that, an exercise of the duwell known pertained to such offices else- ties and functions of the ex officio office is not where.

It is not usual in state essential to the right of holding the principal constitutions to define the particular duties office; but the converse is not the case. of subordinate officers; that being the par- Denver y. Hobart, 10 Nev. 28, 31; State v. ticular province of the Legislature.

Laughton, 19 Nev. 202, 205. In the performance of this duty, the Legisla This proposition is well illustrated by the ture may rightfully exercise a wide discre- opinion in the case of State v. Laughton, tion.

In cases of doubt, it would supra, in which this court said: “It is true, be the duty of the courts, in deference to the the Lieutenant Governor is required to give legislative authority, to solve the doubt in the bond, because the Lieutenant Governor favor of the power exercised; and they and Librarian are one person; but he gives ought to interfere only in a clear case, when it for the ex officio office, not the principal the Legislature has manifestly transcended one. The sureties are not, and were not inits authority by im ng upon ne of these tended to be, liable for any malfeasance outoffices duties which, in their nature are side of the ex officio office. We cannot say in wholly foreign to the office.

The this proceeding that respondent's right to business of counting money in the treasury, hold the office of Lieutenant Governor, and examining books of account,

and enjoy the emoluments thereof, depends upon the investment of public money in bonds, is a faithful discharge of the duties of State wholly foreign to duties of an attorney, and Librarian, or upon his compliance with the is no more cognate to them than the manage- statute concerning the bond required of him ment of a state prison or lunatic asylum. as Librarian. We cannot pronounce the ofThe Legislature has no more power to com- fice of Lieutenant Governor vacant, unless repel the Attorney General to perform such spondent has done something, or failed to do service as a part of the duties of his of- something, which the law declares shall profice, than it has to compel the Superintend-duce a vacancy therein. The fault here ent of Public Instruction to take charge of charged is failure to give the bond required the state prison, or to perform the duties of as State Librarian. For that fault, if it State Gauger. The Attorney General is, exists, the only penalty that can follow in

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the office in which the bond is required was, | functions. People v. Bollam, 182 Ill. 528, by such failure, vacated and forfeited." 54 N. E. 1032; Koch v. Mayor, 152 N. Y.

Both the offices of Secretary of State and 72, 80, 46 N. E. 170; Lloyd v. Smith, 176 Pa. clerk of the Supreme Court have existed as 213, 35 Atl. 199; Massenburg v. Commissiona part of the framework of every state in ers, 96 Ga. 614, 23 S. E. 998; Thomas v. the Union, and the duties and functions are Owens, 4 Md. 189; State v. McDaniel, 19 S. well known. While the duties of the office of C. 114; Troy v. Wooten, 32 N. C. 377; State clerk of the Supreme Court are ministerial v. Covington, 29 Ohio St. 102; Ford v. Comin character, nevertheless, the office is an missioners, 81 Cal. 19, 22 Pac. 278; In re essential part of one of the co-ordinate de Bulger, 45 Cal. 553; Love v. Baehr, supra; partments of the state government, and with- Denver v. Hobart, 10 Nev. 28, 31; 29 Cyc. out such office that branch of the state gov- 1368; Cooley's Constitutional Limitations ernment could not perform its functions. (6th Ed.) pp. 78, 79. The office of Secretary of State holds an In People v. Bollam, supra, the court said: equally important position in the executive “It is a well-established rule of constitubranch of government. It has been urged tional construction that when the Constituthat as these two offices appertain to sepa- tion defines the circumstances under which rate and distinct co-ordinate departments of a right may be exercised, the specification is the state government, it would be in viola- an implied prohibition against the right of tion of article 3 of the Constitution to com- the Legislature to add to the condition, bine them, but as this contention is not clear

Section 24 of article 5 of the conly manifest, both offices being mainly minis- stitution of 1870 says, that 'an office is a terial in character, and as the question can public position created by the Constitution or be determined upon another view of the case, law,' etc. The Constitution thus recognizes we give this point no consideration further two classes of officers, one which is created than to observe that it emphasizes the fact by the Constitution itself, and the other that the two offices are distinct, and that the which is created by statute. Where an office duties of one do not pertain to the duties of is created by statute, it is wholly within the the other. As both of the offices are consti- control of the Legi ure creating it. But tutional in character and both distinct in when an office is created by the Constitution, having duties which appertain to each, but it cannot be enlarged or lessened in scope by which do not appertain to the other, the Leg- any statute, or be filled in any other manner islature is without power to compel either of- than the manner directed by the Constitution. ficer to perform the duties of the other. People v. Loeffler, 175 Ill. 585 [51 N. E. 785)." This point is brought out and sufficiently cov In Denver v. Hobart, supra, this court, by ered in the quotation from the case of Love Hawley, J., said: "The offices of Lieutenant v. Baehr, supra.

Governor and warden of the state prison Every constitutional officer derives his pow. were as distinct as though filled by different er and authority from the Constitution, the persons. The duties and obligations of the same as the Legislature does, and the Legis- one are entirely independent of the duties lature, in the absence of express constitution and obligations of the other. So far as the al authority, is as powerless to add to a office of ex officio warden existed in relator, constitutional office duties foreign to that of- it was an office created by legislative act. fice, as it is to take away duties that natur- The Legislature might at any time direct how ally belong to it. The Legislature may do as it should be filled, what compensation should it sees fit with offices of its own creation; be allowed, and provide the manner in which may consolidate or abolish them; or may its duties should be discharged. In such enact a statute making an office of its own cases, the length of the term of office is regucreation ex officio to some constitutional of- lated by considerations which affect the pubfice. In the latter case, the constitutional lic interest, without any regard to the interofficer may and usually does perform the du- ests of the office-holder." ties of the ex officio office, but no power exists In the case of State v. Rosenstock, 11 Nev. to compel him to so perform them, as a con- 139, this court said: “The duties imposed dition precedent to his holding the principal upon them as city officers are of the same office. It is upon this theory that courts have character as those which they are respecuniversally held that for such additional ex tively required to perform as county officers, officio duties, officers may receive an addition- and there is no constitutional inbibition al compensation or salary, although there be, against the exercise of the duties of a muas in the case of our own Constitution, a pro-nicipal office by a person holding a county vision that the salary of such constitutional office, when the duties of each are of the officers may not be increased or diminished same character.” Cyc., supra, says: “The during the term for which they were elected. authority of the government which possesses

It is well settled by the courts that the the power to create an office has, in the abLegislature, in the absence of special author- sence of some provision of law passed by a ization in the Constitution, is without power higher authority (that is, in the case of a to abolish a constitutional office or to change, municipal authority, some statutory or conalter, or modify its constitutional puters and stitutional provision; in the case of the

Legislature, some constitutional provision), , Clark, 21 Nev. 338, 31 Pac, 545, 18 L. R. A. the implied power to abolish the office it 313, 37 Am. St. Rep. 517. bas created, or to consolidate two or more In State v. Clark, supra, this court said : offices it has created. But if an office has “By the amendment of 1889, section 32 was been provided for by the Constitution, such changed so that the words 'other necessary an office may not be abolished by an act of officers,' no longer appear; but even as it the Legislature."

originally stood, they apply only to officers By a reference to the provisions of section similar to those previously enumerated in 32, art. 4, of the Constitution, as it read be the section, and not to legislative officers, fore its amendment, it will be observed that officers of the militia, and other officers bethe only change made in its provision by the longing to different classes from those menamendment was to eliminate all mention of tioned (Emd. Interp. Stat. $$ 405, 409; Edgethe office of clerk of the Supreme Court, and comb v. His Creditors, 19 Nev. 149, 152 [7 to add the provision that the county officers Pac. 533]).” mentioned in the section as originally en- The Legislature being without power to acted, could be, by the Legislature, increased, make one constitutional office subordinate to diminished, consolidated, or abolished. The another, or to consolidate or combine one amendment also added the office of Superin- with the other, hence, while the act entitled tendent of Schools to the list; otherwise "An act' to consolidate certain state officers there was no change in the offices originally in the state of Nevada," is sufficient to condesignated.

fer color of authority upon the Secretary of If the Legislature had power to consolidate State acting ex officio clerk of the Supreme or abolish county officers named in the Con- Court, it is without force as an amendment stitution, there was no necessity for the or repeal, by implication of the provisions of amendment jn so far as it affected such coun

the statute providing for the election of a ty oflicers. We think here was a clear recog- clerk of the Supreme Court in the manner nition of the established legal principle, that other state officers are elected. in the absence of such constitutional author- The relator having offered for filing his ity, the Legislature was without power to nomination papers and tendered the requisite deal with such offices in the manner provided fee within the time allowed by law therefor, in the amendment. In so far as the amend it is the duty of the respondent to file the ment affected the office of clerk of the Su- same as of the day offered for filing, and to preme Court, it only removed from the Con- certify his name as a candidate for the Demstitution the provision requiring bis election, ocratic nomination for the oflice of clerk of and left that subject in the power of the the Supreme Court, as candidate for other Legislature to deal with. As having some party nominations are certified. possible bearing upon the application of the The writ prayed for sball issue. principle of law deemed controlling in this case, it is proper, we think, to mention the SWEENEY and TALBOT, JJ., concur. fact that, so-far as we have been alle to ascertain, no Legislature of any state has ever before attempted to consolidate or combine two constitutional offices of the state

(48 Colo. 233) government.

MELCHER et al. v. BEELER et al. Again adverting to the provisions of sec- (Supreme Court of Colorado. May 2, 1910. On tion 32 of article 4, of the Constitution as Petition for Rehearing July 5, 1910.) amended, we find it specially enumerates 1. APPEAL AND ERROR ($ 218*)-QUESTIONS certain offices which may be consolidated or REVIEWABLE-OBJECTIONS NOT URGED BEabolished, increased or diminished, and that all of the offices so named are county offices. sented to the trial court will not be considered

Under the rule that a question not preWe think the maxim, "Expressio unius est for the first time on appeal, the objection that exclusio alterius," clearly applicable, and a verdict did not show what amount of damthat the Constitution by specifically desig- ages was assessed on each of two canses of nating certain particular officers of a par- court, would not be considered on appeal.

action separately, not being urged in the trial ticular class which may be consolidated, etc., intended to exclude from such provisions all Error, Cent. Dig. $$ 1315-1324; Dec. Dig. $

[Ed. Note.-For other cases, see Appeal and other constitutional officers. Broom, in his 218;* Trial, Cent. Dig. 88 818, 875.] Legal Maxims, says that no maxim of the

2. LIBEL AND SLANDER ($ 104*)-MALICElaw is of more general and uniform applica- EVIDENCE-OTHER PUBLICATIONS. tion and is never more applicable than in the In a libel action, prior and contemporaneconstruction and interpretation of statutes. ous publications of similar import to those for 19 Cyc. 23. This maxim is alike applicable which damages are claimed are competent to

show malice. to the construction of constitutional provisions. 8 Cyc. 729; Spier v. Baker, 120 Cal.

[Ed. Note.-For other cases, see Libel and

Slander, Cent. Dig. $$ 281-291; Dec. Dig. $ 376, 52 Pac, 659, 41 L. R. A. 196; State v. 104.* ]

LOW.

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3. TRIAL ($ 207*)-RECEPTION OF EVIDENCE- raise the inference that they were maliciously INSTRUCTIONS.

inspired. While, where testimony is competent only. [Ed. Note. For other cases, see Libel and for some particular purpose, it is the better slander, Cent. Dig. 88 325–341; Dec. Dig. 9 practice to so advise the jury at the time of 112.*] its introduction, it is pot error for the court to 11. LIBEL AND SLANDER ( 104*)—MALICEfail to do so when objecting counsel do not re

EVIDENCE. quest a direction limiting its competency.

That one was actuated by malice in making [Ed. Note.-For other cases, see Trial, Cent.

a defamatory communication which is priviDig. 88 498-501; Dec. Dig. 8 207.*]

leged cannot be established alone by introducing 4. TRIAL ($ 207*) – INSTRUCTIONS LIMITING other privileged communications, nor are the EFFECT OF EVIDENCE.

latter admissible for such purpose, until there In a libel action, an instruction, permitting is some other testimony tending to prove the the jury to base the damages awarded on all malice. the evidence, without excluding evidence admit [Ed. Note.-For other cases, see Libel and ted solely to show malice, and on which no dam- Slander, Cent. Dig. 88 284–291; Dec. Dig. j ages could be founded, was erroneous.

104.*) (Ed. Note. For other cases, see Trial, Dec. 12. LIBEL AND SLANDER (88 33, 123*)_WORDS Dig. § 207.*]

ACTIONABLE PER SE-DAMAGES EVIDENCE. 5. TRIAL (S 281*) INSTRUCTIONS · ExcEP Where words charged as libelous are acTIONS,

tionable per se, the law presumes damages and The rule that where an instruction embraces no special evidence concerning them is requir. several distinct propositions of law,' some of ed; the amount being for the jury. which are correct, a general exception to the [Ed. Note.-For other cases, see Libel and whole instruction is not good, does not apply slander, Cent. Dig. 88 112, 277, 364; Dec. Dig. where the instruction authorizes the wrong ap- 88 33, 123.*] plication of that which is correct. [Ed. Note.-For other cases, see Trial, Cent. 13. LIBEL AND SLANDER ($ 73*)–PARTIES EN.

TITLED TO SUE-NAMES. Dig. $ 694; Dec. Dig. § 281.*)

Laws 1897, c. 65, $ 1 (Mills' Ann. St. Rev. 6. APPEAL AND ERROR ($ 216*) — PRESERVA-Supp. § 3387a; Rev. St. 1908, § 4778), mak

TION OF GROUNDS FOR REVIEW-REQUESTS ing it the duty of any person or persons doing FOR INSTRUCTIONS.

business under the name of manager or in any Where the court gives an erroneous instruc- other representative dame, etc., to file for ree tion, that counsel fail to tender a correct one ord with the clerk and recorder of the county does not preclude them from assigning error on an affidavit setting forth the full names and the incorrect one.

addresses of all the parties so represented, and [Ed. Note.-For other cases, see Appeal and providing that persons, partnerships, etc., failError, Dec. Dig. § 216.*]

ing to file the affidavit may not prosecute any 7. LIBEL AND SLANDER (8 44*)—"PRIVILEGED suit for the collection of their debts until such COMMUNICATIONS.

affidavit is filed, applies only to suits for the Where one to whom an inquiry is addressed collection of debts, and does not apply to an ac

tion for libel. regarding another communicates bona fide without malice to the inquirer facts regarding the

[Ed. Note.-For other cases, see Libel and one inquired about, the communication is "priv- Slander, Dec. Dig. § 73.*] ileged"; and hence one is justified in giving in 14. LIBEL AND SLANDER ($ 73*)-PARTIES Ex. good faith his opinion of the integrity and stand TITLED TO SUE-PARTNERS. ing of a tradesman in response to an inquiry Partners may maintain a joint action for concerning him.

libel or slander which tends to injure the busi[Ed. Note.-For other cases, see Libel and ness of the firm, though the defamatory words Slander, Cent. Dig. $$ 133-137; Dec. Dig. 8 refer to or concern but one of its members.

[Ed. Note.-For other cases, see Libel and For other definitions, see Words and Phrases, Slander, Cent. Dig. & 174; Dec. Dig. $ 73.*] vol. 6, pp. 5591-5598; vol. 8, p. 7761.)

15. LIBEL AND SLANDER (8 47*) - INVITED 8. LIBEL AND SLANDER (8 123*)--QUESTIONS

STATEMENTS. FOR COURT AND JURY.

Alleged defamatory statements, invited or In a libel action, where the testimony bear-procured by plaintiff or a person acting for him ing on the issue of whether or not a communica- in response to a request regarding him, will tion is privileged is not conflicting, the question not support an action for libel. of its character is one of law for the court; [Ed. Note.-For other cases, see Libel and but otherwise it is for the jury.

Slander, Cent. Dig. 88 131, 132, 154; Dec. (Ed. Note.-For other cases, see Libel and Dig. $ 47.*] Slander, Cent. Dig. $$ 356-364; Dec. Dig. 8 123.*)

Appeal from District Court, City and Coun9. LIBEL AND SLANDER (88 101, 123*)-PRIVI. ty of Denver; F. T. Johnson, Judge.

LEGED COMMUNICATION QUESTIONS FOR Action by John F. Beeler and another JURY-BURDEN OF PROOF.

against L. L. Melcher and another. Judg. Though a communication be privileged, the question of good faith, belief in the truth of ment for plaintiffs, and defendants appeal. the statements made, and the existence of actual | Reversed and remanded. malice remain for the jury, and the burden of establishing the facts rendering the privileged w. Helbig and R. D. Rees, for appellees.

Stokes & Sherman, for appellants. John communication actionable is on plaintiff.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. $$ 273-280, 356-364; Dec.

GABBERT, J. Appellees, as plaintiffs, Dig. 88 101, 123.* ]

brought an action against the appellants, as 10. LIBEL AND SLANDER ($ 112*)—MALICE-defendants, to recover damages resulting EVIDENCE.

The falsity of the statements of a privi- from alleged libelous letters and publications leged communication is not of itself sufficient to which, it was charged, the defendants had *For other cases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

44.*

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