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constitutional provision, the enacting authority must, notwithstanding, be stated; and any words which do this to a common understanding are doubtless sufficient; or the words may be prescribed by rule. In this respect much must depend upon usage.

"III. Whether, where enacting words are prescribed in a resolve or joint resolution, can such resolution have the force of law without the use of those very words, is a question which depends upon each individual Constitution, and which we are not called upon at present to settle."

The question asked falls under the first subdivision discussed by Cushing.

In McPherson v. Leonard, supra, the majority of the justices of the court held that the words "by the General Assembly of Maryland," which were omitted from the enacting clause, were not of the essence and substance of a law, and that their use was directory only, and upon this ground refused to declare the act void. The statement that the words omitted are not of the essence and substance of a law is clearly erroneous, and the opinion is fallacious. How can it be said that these words are not of the essence and substance of a law when the Constitution declares that the enacting clause of every law shall contain them? Two justices dissented from the opinion of the court and held the provision of the Constitution to be mandatory. Justice Stewart, in his dissenting opinion, said, in alluding to the Constitution: "That instrument having expressly declared, in the twenty-ninth section of the third article, that "The style of all laws of the State shall be, "Be it enacted by the general assembly of Maryland," it is incumbent on the law-making department to pursue that mode. If a positive requirement of this character * can be disregarded, so may others of a different character, and where will the limit be affixed or practical discrimination made as to what parts of the organic law of the State are to be held as advisory, directory, or mandatory? Disregard of the requirements of the Constitution, although, perchance, in matters of mere form and style, in any part, in law, may es

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tablish dangerous examples, and should, in all proper ways, be discountenanced. The safer policy, I think, is to follow its plain mandates in matters that may appear not to be material, in order that the more substantial parts may be duly respected. If those who are delegated with the trust of making the laws, from the purest motives improvidently omit the observances of the Constitution under any circumstances, such oversight may be referred to in the future by others, with far different views, as precedents, and for the purpose of abuse. A higher responsibility is imposed upon those selected by the people for the discharge of legislative duty, and a greater obligation is demanded of them to exemplify, by their practice, a careful compliance with the Constitution. By a vigilant observance of its commands, the more reasonable is the probability that the best order will be secured. It is unnecessary to illustrate, by any argument, the soundness of this general consideration, which, I am sure, all will admit to be unquestionable, that a strict conformity is an axiom in the science of government. I certainly entertain such profound conviction of its truth, that I do not feel authorized to give my approval to this act as a valid law, but, on the contrary, am constrained to say, that the omission of the style required by the Constitution is fatal to its validity." (29 Md. 392.)

In Washington Territory, an act was passed without an enacting clause, to locate the seat of government, and although the "organic act" passed by Congress creating the Territory did not prescribe or require any enacting clause to be used in the passage of any law, the Supreme Court held the act to be unconstitutional and void for the want of an enacting clause. After quoting from Cushing, the court say: "The staring fact that the constitutions of so many States, made and perfected by the wisdom of their greatest legal lights, contain a statement of an enacting clause in which the power of the enacting authority is incorporated, is, to our minds, a strong and powerful argument of its necessity. It is fortified and strengthened by the further

Opinion of the Court-Hawley, C. J.

fact that Congress, and the other States, to say nothing of the English Parliament, have, by almost unbroken custom and usage, prefaced all their laws with some set form of words in which is contained the enacting authority." (1 Wash. Ter. 143.)

Wyche, J., dissented from the opinion of the court, and in his dissenting opinion said: "The constitutions of nearly all, if not every State, prescribe some form for an enacting style, that is to say, some description of the lawmaking power. In such States it is conceded the prescribed forms must be followed, perhaps literally, at all events substantially." He refers to Washington v. Page (4 Cal. 388), where a provision of the Constitution was declared to be directory, and says it "is unsatisfactory and is not cited with approbation." He bases his dissent upon the ground that the "organic act" did not require an enacting clause, and that if the legislature was compelled to use any "enacting style from the force of custom, that custom must be unbroken," and shows that no such custom existed in the Territory. In Swann v. Buck, supra, the court discussed questions which belong to the third subdivision mentioned by Cushing. As an authority it has no application to the facts of this case, except in so far as the court held the law to be directory, a position which, in our judgment, for reasons we have already stated, is wholly untenable. The Constitution of Mississippi provides that the style of laws shall be: "Be it enacted by the Legislature of the State of Mississippi." The legislature passed a joint resolution in the following words: "Resolved by the Legislature of the State of Mississippi." The court, after admitting that it is necessary that every law should show on its face the authority by which it is adopted, held that the word "resolved" was as potent to declare the legislative will as the word "enacted," and further sustained the validity of the law upon the ground that as a joint resolution it had the force and effect of law.

In this case it is not contended that any equivalent words for those missing have been used, and there is no pretense

Opinion of the Court-Hawley, C. J.

that the act has the force or effect of law as a resolution. It is not necessary for us to hold, as laid down by Cushing, that nothing can be a law which is not introduced by the very words prescribed by the Constitution, for here there has not been a substantial compliance with the plain provision of that instrument. It is true, as was argued by relator's counsel, that all political power is inherent in the people. It is "the people" that enact all laws; but the laws, under the provisions of our Constitution, can only be enacted by the people when "represented in Senate and Assembly." These words, expressive of the authority which passed the law, are as necessary as the words, "the people," or any other words of the enacting clause. On its face the act purports to have been enacted by the people when represented in the assembly only. Without the concurrence of the senate the people have no power to enact any law. Every person at all familiar with the practice of legislative bodies is aware that one of the most common methods adopted to kill a bill and prevent its becoming a law, is for a member to move to strike out the enacting clause. If such motion is carried, the bill is lost. Can it be seriously contended that such a bill, with its head cut off, could thereafter by any legislative action become a law? Certainly not. The certificates of the proper officers of the senate and assembly, that such an act was passed in their respective houses, do not, and could not, impart vitality to any act which, upon its face, failed to express the authority by which it was enacted.

It was suggested by counsel for relator in his oral argument that when the bill was presented to the legislature, the enacting clause contained the identical words required by the Constitution, and that, after its passage, through the mistake of the enrolling clerk, the words "senate and” were omitted. We decided in The State ex rel. George v. Swift, ante, that we could not look beyond the enrolled bill in the office of the secretary of state in order to ascertain the terms of a law. The correctness of that decision has not been questioned, and under the rules therein established we

Points decided.

must take the act as we find it certified to by the officers whose duty it is to certify to the correctness of all laws that have been enacted. Our Constitution expressly provides that the enacting clause of every law shall be "The people of the State of Nevada, represented in senate and assembly, do enact as follows." This language is susceptible of but one interpretation. There is no doubtful meaning as to the intention. It is, in our judgment, an imperative mandate of the people in their sovereign capacity to the legislature, requiring that all laws to be binding upon them shall, upon their face, express the authority by which they were enacted, and as this act comes to us without such authority appearing upon its face, it is not a law.

The conclusion here arrived at renders it unnecessary to decide whether the act in question is subject to the further objections, urged by respondent's counsel, that the subject of the law is not expressed in the title, and upon that point we express no opinion.

The writ of mandamus is denied.

EARLL, J., did not participate in the foregoing decision.

[No. 742.]

EX PARTE THOMAS RYAN.

HABEAS CORPUS-TERM OF COURT.-Whether in proceedings by habeas corpus this Court could declare the conviction of petitioner void, for the reason that he was tried and found guilty at a term of court not authorized by statute, referred to but not decided.

VALIDITY OF CONVICTION, WHEN IMMATERIAL.--Where it appears that petitioner is legally held by the warden of the State prison, under three valid convictions, the legality or illegality of another conviction is immaterial, and need not be considered until his terms of service under the valid convictions have expired.

PRISONER WHEN MAY BE TRIEd for Offenses.—A prisoner confined in the State prison may, under the provisions of the act of March 1, 1866 (Stat. 1866, 166), be lawfully tried for an offense during his term of imprisonment for another offense.

TIME OF SENTENCE, WHEN CERTAIN.-As the time of the expiration of petitioner's first sentence was certain: Held, that the subsequent sentences to commence at the expiration of any and all terms of imprisonment he was then undergoing in the State prison, were equally certain.