hold and sustain such acts, provided they have been adopted by the legislature in the mode required by the constitution. Cooley, Const. Lim. 725-728; Black, Const. Prohib. § 61, et seq. This power and authority have been recognized and sanctioned by the courts of every state in the Union where the question has been presented, and sustained by the supreme court of the United States. * authorities cited in the latter case, 19 Nev. 389, 390, 12 Pac. Rep. 832. In examining the act under consideration, and reviewing the authorities cited by the respective counsel, and other decided cases, we are irresist ibly led to the conclusion that this act embraces but one subject, which subject is briefly and correctly expressed in the title. When the legislature had this matter under consideration it is apparent that the members, as a question of public policy, evidently believed it to be in the interest of public morals, and necessary for the protection of the and limit the time in which certain kinds of licensed business should be conducted and carried on in this state. The subject considered by them was that of closing certain kinds of business during certain hours. This is the subject, and the only subject, embraced by the act. The legislature had the power to declare what kinds of business should be closed, and how long they should be compelled to remain closed. All sorts of business coming within the class that can be regulated under the police power of the state could properly be embodied in one act, under an appropriate title. The title might be general, as "An act to protect public morals;" or it might, as the title of this act does, designate the different kinds of business to be restricted. If the title was general in its terms, then the body of the act could designate the kinds of business to be closed. If the title designated by name the kinds of business to be closed, then the act would necessarily be limited to the classes included in the title to the act. State v. Atherton, 19 Nev. 345, 10 Pac. Rep. 901. In either case the legislature could include different kinds of business, which bear no relation to each other, except that they all come within the power of the legislature to regulate, restrict, or abolish. It is argued by counsel for petitioner that the act in question was passed in violation of section 17, art. 4, of the constitution of this state, which provides that "each law enacted by the legislature shall embrace but one sub-people and good order of society, to restrict ject, and matter properly connected therewith, which subject shall be briefly expressed in the title;" and this argument is sought to be maintained upon the theory that the act embraces "two distinct subjects and matters, -the liquor business and gambling." Is this position correct? Is it sustained by any of the adjudicated cases? Does the act embrace more than one subject? Counsel cites and relies upon State v. Silver, 9 Nev. 227, and State v. Hallock, 19 Nev. 384, 12 Pac. Rep. 832. In State v. Silver, the legislature of this state, by an act entitled "An act to regulate marks and brands," inserted a provision for the punishment of the unlawful killing of stock. This court, in discussing the object of the constitutional provision, (section 17, art. 4,) said that "the subject of unlawful killing of stock * * bears no proper relation to that of the regulation of marks and brands; and a statute entitled An act to regulate marks and brands' gives no intimation by its title of a provision for the punishment of the unlawful killing of stock. So much of the statute, therefore, as relates to the killing of stock we consider unconstitutional." It will readily be seen by this quotation that the principal announced in that case does not support the theory contended for by petitioner. If the title to the act in question had been "An act fixing the The precise question relied upon and time of opening and closing gaming-houses, urged by petitioner was, among others, preand provisions had been inserted in the act sented to the supreme court of New Jersey fixing the time of opening and closing liquor in Grover v. Trustees, etc., where it was saloons, then the question, as presented in contended that the act there under consideraState v. Silver, would have been raised. In tion embraced two objects, viz., the licensState v. Hallock, the legislature sought to ing and regulation of boats, hacks, and other amend an act by adding to its title the sub- vehicles, and the licensing, regulating, and ject of another, independent act. We said, restraining of the manufacture and sale of among other things, that it might have been liquor; things having no relation to each within the power of the legislature, as an other. The court said that this contention original measure, to have adopted a title that "is wholly without support. The power to would have been broad enough to include license and regulate boats, hacks, and other both classes set forth in the title of the vehicles used in the transportation of passenamendatory act; "but, having adopted a lim-gers or merchandise, and the power to license, ited title for each, and passed separate acts, regulate, and prohibit the manufacture or it was not within the power of any subse- sale of liquor, are of the class of police powquent legislature to amend the title of either act so as to include the matters legitimately pertaining to the other." The facts in that case were entirely dissimilar from the facts in this case. The object of the constitutional provision was to avoid and prevent just such legislation as was attempted to be accomplished in the cases we have referred to. See ers usually granted to a municipal government. They are powers appropriate for the maintenance of order, and have relation to the same common subject,-the peace and good government of the municipality. We have no doubt that the legislature, under a title which shall conform to the constitutional requirement, may pass an act which shall embrace in it both these powers." 45 N. J. Law, 401. See, also, State v. Hallcock, supra; Cherokee Co. v. State, 13 Pac. Rep. 558; State v. Town of Union, 33 N. J. Law, 354; Montclair v. Ramsdell, 107 U. S. 155, 2 Sup. Ct. Rep. 391; Blood v. Mercelliott, 53 Pa. St. 393; Block v. State, 66 Ala. 495. This must be true. To hold otherwise would lead to absurd results, and have a tendency to clog the wheels of necessary legislation. Under the title of "An act to provide revenue for the support of the government of the state," all classes of property, and all kinds of business bearing no proper relation to each other, are included under the power of taxation, because they are included within the subject embraced by the act, of raising revenue for the support of the state government. Acts incorporating cities by name are sufficient to authorize the legislature to put into the body of such acts everything necessary to carry out the objects of the incorporation. Under the general title of such incorporations, sections might be inserted in the body of the act prohibiting the sale of liquor and prohibiting gambling within the corporate limits. It seems to us that it might with just as much force be said in such cases that such acts embraced different subjects as in the case in hand; yet it is admitted that acts of the character mentioned have been universally sustained. So in regard to acts concerning public improvements. The legislature may put into one act the necessary provisions concerning the erection of a court-house and jail, and also the building of certain bridges and construction of highways, although there is no relation between a court-house and jail, and bridges and highways, save and except the necessity or propriety which exists in constructing such buildings, bridges, and highways, under the subject of internal improvements. The general appropriation acts furnish a forcible illustration of the principle we are discussing. Under one act, appropriations are made for the salaries of officers and for repairs to a state penitentiary, not because the salaries of the state officers bear any particular relation to the improvements to be made on the state penitentiary, but because both these appropriations are necessary to be provided for in order to carry on the affairs of the state government. The supreme court of South Carolina, in State v. Chester, in construing a similar constitutional provision with reference to a statute providing a "local option" for the incorporated towns of that state, said: "This section" of the constitution "no doubt contains a wise provision, and if properly observed would tend greatly to prevent confusion and doubt as to the exact meaning and intent of legislative enactments, and to this end it should be enforced by the courts in all proper cases, due care being exercised lest a too strict construction might defeat its very object and purpose by clogging legislation and loading down our statute books with numberless separate acts wholly unnecessary to the end designed. By such a construction few matters could become the subject of legislation in a single act. * * * Take, for example, the general appropriation act. Every section, in fact almost every line, in a strict sense, refers to a different subject, as different appropriations, and for different purposes, are certainly made, and if each of these had to be in a separate act it would entail infinite confusion in a matter of the highest importance to the state. It cannot be that the framers of the constitution ever intended that such a construction should be placed upon this section." 18 S. C. 466. The subject of the act being to fix the hours of opening and closing saloons and gaming houses, all the provisions of the act prohibiting the selling or giving away any spirituous liquors, and prohibiting the conducting of gambling and games of chance within the hours mentioned, as well as the penalty prescribed against peace officers in the third section of the act, being necessary to effect and enforce the object of the law, must be considered in their entirety, as a unit, as "matters properly connected with the enforcement of the law and the attainment of the contemplated object." State v. Silver, supra. "Where the subject of legislation is of a general character, all matters reasonably connected with it, which are appropriate to accomplish or facilitate the object of the act, may be embraced in it without infringing the constitutional interdict which prohibits the intermixing of such things as have no proper relation to each other." In re Report, etc., 10 Atl. Rep. 367; Klein v. Kinkead, 16 Nev. 202; People v. Briggs, 50 · N. Y. 564; Board v Dwight, 101 N. Y. 11, 3 N. E. Rep. 782; Bergen Co. v. Township of Union, 44 N. Law, 602; Potwin v. Johnson, 108 Ill. 77; Canal Co. v Bright, 8 Colo. 147, 6 Pac. Rep. 142, Carter Co. v. Sinton, 120 U. S. 522, 7 Sup. Ct. Rep. 650; Jonesboro v. Railroad Co., 110 U. S. 199, 4 Sup. Ct. Rep. 67; Cooley, Const. Lim. 175, and the authorities there cited. The provisions of the act under consideration do not come within any of the evils intended to be remedied by the constitutional provision. The subject of the act is briefly and correctly expressed in the title. The title called the attention of the members of the legislature to the subject embraced in the act. It is not in any respect misleading. The subject of the act is not in any manner diguised or concealed by the title, as it was in State v. Silver and State v Hallock, supra. Neither the members of the legislature nor the people of the state could be misled thereby. All matters contained in the body of the act are germane to the subject expressed in the title. The criticism of counsel touching the various meanings applied to the word "saloon" has no application to the particular facts of this case. It is true that the word "saloon" has many different meanings. It might in * * * on counting votes at an election, they shall be re- certain cases be used to designate "a spacious and elegant apartment for the reception of company, or for works of art; to halls for public entertainments or amusements; also to apartments for specific public uses, as the saloon of a steam-boat," (Webst. Dict.;) but the meaning of the term or word as used by the legislature is well under-1282 provides that a ballot, with a designated headstood in this state. Its meaning is made plain and clear by reference to the provisions in the body of the act: "It shall be unlawful for any person or persons, firm or corporation, engaged in the business of selling any kind or kinds of spirituous or malt liquors by the glass or drink, or engaged in carrying on or conducting any kind or character of gambling or games of chance, to open such place of business for the sale of such liquors, or for the prosecution of such games, at an earlier hour than 6 o'clock in the morning of each or any day, and no such person or persons, firm or corporation, shall sell or give away any such liquors, or continue or allow the continuance of any such games, in or about their respective places of business after the hour of 12 o'clock P. M. of each or any day, and all such places of business, excepting hotels, shall be closed between the hours of midnight and the hour of 6 o'clock the next morning of each and every day." It is set forth in the complaint upon which petitioner was arrested that he was "engaged in the business of selling spirituous liquors by the drink," and that he did, at his place of business known as "Ozark Saloon," unlawfully sell spirituous liquors after the hour of 12 o'clock P. M. of the day therein named. Any one reading the provisions of the act will see at a glance that the business in which petitioner is engaged is one of the character intended to be reached by the legislature. The provisions of the act we have italicized show just what kind of saloons must be kept closed. It is therefore apparent that the word "saloon" in the title of this act is not misleading. The truth is that the character of the place to be closed, whether a saloon or gaming house, is to be determined by the kind of business transacted therein. In this respect we are of opinion that the act is not, and was not intended to be, any broader than the title. turns. of his residence, on the 6th day of the month, 3. Evidence that a voter arrived at S., the place bought a lot, and contracted for the building of a store-house on the 7th; that the house was built bought land for a home, and brought his family, soon after; that about seven weeks afterwards he -shows the residence of the voter to have been in 4. Another voter, an unmarried man, who sold 5. Where the evidence as to the residence of a voter shows that he was located on a pre-emption claim May 3d; that he boarded with a relative while building his house; that he had left his home in Missouri some time before, that his family arrived in Colorado in May, the exact date being uncertain; and that they continued to reside on the claim from that time,-it is error to hold his length of residence insufficient. 6. Under the statute mentioned a residence of but 10 days in the precinct is necessary to constitute a person a legal voter, and therefore the fact that such voter had resided in the precinct in which he registers less than six months will not of itself overthrow the presumption in favor of the legality of his vote. Commissioners' decision. Appeal from Bent county court. Henry Kellogg appeals from the decision of the county court declaring his competitor, T. J. Hickman, elected county treasurer of said county. J. C. Coad, Jas. M. John, E. O. Wolcott, and J. F. Vaile, for appellant. Patterson & Thomas, Way & Page, and J. F. Bostwick, for appellee. each name, on plain, white news printing paper, not more than two and one-half inches, nor less than two and three-eighths inches, wide, without any device or mark by which one ticket may be known or distinguished from another, except the words at the head of the tickets; and it shall be unlawful for STALLCUP, C. The appellant was declared any person to print for distribution at the elected to the office of county treasurer of polls, or distribute to any elector or voter, said county of Bent, at the election held No- any ballot printed or written contrary to the vember 8, 1887, by a majority of eight votes, provisions hereof; but this section shall not over his opponent, the said appellee. The be considered to prohibit the erasure, correccontestor alleged that illegal votes had been tion, or insertion of any name by pencil or received and counted against him; also that with ink upon the face of the printed ballot." votes had been illegally received and counted And section 1282 provides as follows: against him, to his detriment. And the con- "When a ballot, with a certain designated testee alleged that illegal votes had been re-heading, contains printed thereon, in place ceived and counted against him. The case of another, a name not found on the regular was tried by the county judge of the said coun- ballot having such heading, such name shall ty under the provisions of the act approved be regarded by the judges as having been April 10, 1885. From the votes received and placed thereon for the purpose of fraud, and counted for appellant, who was the contestee, such ballot shail not be counted for the name deductions were made by the said county judge so found." By the statute it is unlawful to as follows: From the vote of Sheridan Lake print or distribute tickets other than the kind precinct, 48 votes, on account of color and prescribed in said section 1281. It is also width of ballot, 10 of the same being held ille- declared that in the case described in said gal onthe additional ground of insufficient res- sections 1199 and 1282, the judges of elecidence of the voters in the state; from the vote tion shall not count the votes. No other of Wilde precinct, 30 votes, on account of ir- cases are mentioned in which the judges of regularities of the judges of election there, 9 election are expressly authorized not to count of the same being held illegal, on the addi- the votes received. There is no claim that tional ground of insuflicient residence of the any fraud was intended or perpetrated in the voters in the state and precinct; and from premises. other precincts, three votes on the ground of insufficient residence of the voters,-in all 81 votes, deducted from those counted for appellant; and from the votes received and counted for appellee, 8 votes were deducted, on the ground of insufficient residence and other disqualifications of the voters. Whereupon judgment was given for the said appellee from which the case comes here on appeal. It is contended here for appellant that the court erred in all of the said deductions from the count for appellant. I see no warrant in the statute for deducting these votes from the count. The courts are without authority to declarė such penalty against the voter until the legislature shall have declared that the act of voting such ballot shall be unlawful, and that such ballot, if voted by the elector, and received by the judges, shall not be counted, and, in the absence of legislation to this effect, the courts may not declare as much. The right to vote under our constitution is a vested constitutional right, with no condition im1. Of the 48 votes of Sheridan Lake pre- posed as to the manner of exercising the cinct, it appears that from a mistake in the right, except that the vote be by ballot. That directions the regular party ticket, by which a right so vested and exercised—a vote so ofappellant was named for the office of county fered and received-may be defeated by force treasurer, failed to reach the voting place of of legislative enactment at all, may be doubtthat precinct. Whereupon the tickets for said ed. See Daggett v. Hudson, 54 Amer. Rep. party were there printed on pale yellow paper, 832, and note. However, conceding that an 34 inches wide, containing, along with the enactment expressly declaring against voting, other candidates of said party, the name of against counting, or knowingly receiving, appellant for said office of county treasurer, ballots other than those prescribed may be this paper being the nearest to the kind pre-sustained, still it seems clear that the exerscribed by the statute there obtainable upon which to print the tickets. Forty-eight of these tickets were accordingly voted, received, and counted at this precinct. The good faith of the transaction is not questioned. Section 1199 of our General Statutes provides that when it shall be found, on counting votes, that two or more tickets have been deceitfully folded together, such tickets shall be rejected. Section 1281 provides as follows: "All ballots shall be written on plain white paper, or printed with black ink, with a space of not less than one-fifth of an inch between cise of such right by the elector may not be nullified by force of a strained and doubtful construction of an enactment containing no such expressions. Such expressions are found in the enactments on this subject in California, Mississippi, and Texas, and the exclusion of the prohibited ballots in those states, therefore, rests upon such direct expressions. See Reynolds v. Snow, 67 Cal. 492, 8 Pac. Rep. 27; Steele v. Calhoun, 61 Miss. 556; Owens v. State, 64 Tex. 509. The California statute provides that no ticket shall be used at an election, or circulated on the day of elec tion, unless it is of a particular description | section 1281 is an almost literal rescript of prescribed, and it further provides that when the Ohio statute, it has been suggested that a ballot, contrary to such description, shall there has been error in transcribing. The be found in any ballot-box, it must be with Ohio statute declares that "it shall be unlawall its contents rejected. The enactment of ful for any person to * * * distribute 1880 of the state of Mississippi is like ours in to any elector, or vote, any ballot printed or this regard, except that it provides that a written contrary to the provisions hereof." ticket different froin that prescribed shall not Section 2948. Section 1281 provides that "it be received nor counted. And the enactment shall be unlawful for any person to * * * of 1879, of the state of Texas, is also similar distribute to any elector or voter any ballot to our statute in this regard, with the excep- printed or written contrary to the kind pretion that it provides that any ticket not in scribed." An examination of the enrolled act conformity with the act shall not be counted. shows no error by the printer or publisher. I find no case, and I think none can be found, The printing and punctuation are correct. where the deduction of such votes from the No one can say that section 1281 is not as count is allowed in the absence of legislative complete and grammatical as the Ohio act. expression against counting or receiving the If the change was unintentional, it is cersame. It will be seen that the enactment tainly not apparent on its face. It appears under consideration does not in terms pro- to be the deliberate act of the general assemhibit the elector from voting a ticket printed bly, and it would be a most dangerous precon paper different from that prescribed; nor edent for the courts to assume to change the does it declare against the counting or re- express terms or language of a perfectly conceiving of any such ticket. The parties vot-structed statute, as changing a noun to a ing at an election are considered by soine verb, and altering the punctuation, in order courts as parties to a contest of this kind. to correct the supposed errors of the lawHopkins v. Olin, 23 Wis. 319; People v. making power. Such corrections must be Pease, 27 N. Y. 45. However this may be, made by legislative, and not by judicial, it will be conceded that the rights of the authority. Bishop, on Statutory Crimes, electors voting are necessarily involved in § 199, says: "The circumstances will be rare contests of this kind; that their rights in the in which any court will so extend an enactpremises may not be ignored; that, to war- ment by construction as to involve penal conrant the courts in depriving them of their sequences not within the express words." votes as a result or penalty for having voted To attempt to correct section 1281, or give it ballots printed upon paper different from that the construction proposed, would be to deprescribed, there must be legislative expres- clare the voting, as well as the distribution sion to that effect. It is contended that it of such ballots, to be unlawful, and would at was the intention of the legislature, by the least involve the penal consequences of disenactment under consideration, to deprive franchisement to the voter, and the loss of them of their votes when so cast, and that lawful votes to the candidate. The courts such intention is apparent from the act, not- are inclined to restrict the exceptions which withstanding the want of expression in this expressly exclude the ballot, rather than to regard, and that such intention should gov- extend them, and to admit the ballot if the ern, in order to give effect to this provision spirit and intention of the law is not vioof the act. It was stated in the oral argu-lated, although a literal construction would ment that this section 1281 was taken from vitiate it. State v. Phillips, 63 Tex. 393; the Ohio act upon the same subject. Upon examination of that act, I find that it declares that it shall be unlawful to publish, distribute, or vote a ticket different from the ticket prescribed. The prohibition against the voter, being omitted in the act here, is significant in that it tends to show that the legisislature here did not intend to defeat the vote of an honest voter honestly voted, even if his ticket was of different paper from that prescribed, but did intend the provision in this regard for his protection in the premises; that is to say, the legislative intention to be gathered from the language used seems to be that no ballot except the kind prescribed 2. As to the votes of Wilde precinct. should be printed or furnished to the voter, There were 30 of them, and all for appellant. to the end that his ballot might be secret, and The judges had duly counted and tallied the that he might be clear of restraint or imposi- votes, and had put the ballots into the ballottion of any kind in the exercise of his right box, and sealed up the box, but had failed to of suffrage. Upon a fair consideration of the sign the tally-lists or poll-books until the statute it is not apparent that the legislative next day after the election, when one of the intent was to nullify such votes. See Gille-judges had departed; whereupon a messen land v. Schuyler, 9 Kan. 587; McCrary, ger was sent with the said tally-lists or pollElect. (3d Ed.) §§ 190-193. Inasmuch as books after said judge, who was overtaken Druliner v. State, 29 Ind. 308; Stanley v. Manly, 35 Ind. 275; Kirk v. Rhoads, 46 Cal. 399. Courts should not extend an enactment by construction beyond the expression of the act, so as to deprive an elector of his right of suffrage. When such consequences are involved, the courts go not beyond the expression of the act. To deprive legal voters of their votes, after they have been in good faith by ballot cast and counted, without express statutory mandate therefor, would be an advance beyond all precedent, and, as I think, in violation of correct principles. 2 Bouv. Law Dict. 318. |