Buckingham v. Fifth Judicial Dist. Court in and for Mineral County

• Citation: 102 P.2d 632,60 Nev. 129
• Decision Date: 14 May 1940
• Docket Number: 3302.
• Parties: D. M. BUCKINGHAM v. FIFTH JUDICIAL DIST. COURT IN AND FOR MINERAL COUNTY et al.
• Court: Supreme Court of Nevada

102 P.2d 632

60 Nev. 129

D. M. BUCKINGHAM v. FIFTH JUDICIAL DIST. COURT IN AND FOR MINERAL COUNTY et al.

No. 3302.

Supreme Court of Nevada

May 14, 1940

Original proceeding by D. M. Buckingham against the Fifth Judicial District Court of the State of Nevada in and for the County of Mineral, and the Hon. William D. Hatton, the Presiding Judge thereof, for a writ of prohibition restraining the District Court and the Judge from taking any further steps in a pending proceeding to remove petitioner from the office of County Clerk and Treasurer.

Alternative writ of prohibition made permanent.

Thatcher & Woodburn, of Reno, for petitioner.

Martin G. Evansen, Dist. Atty., of Hawthorne, for respondents.

ORR Justice.

This is an application for a writ of prohibition.

D. M Buckingham is the duly elected and acting county clerk and ex officio treasurer of the County of Mineral, State of Nevada. On the 7th day of October, 1939, the State of Nevada, on the relation of Farrell Seevers, as complainant, filed in the district court of the Fifth Judicial District of the State of Nevada, in and for the County of Mineral, a certain amended complaint, the pertinent portions of which are as follows:

"1. That Defendant did, while acting as such County Clerk and County Treasurer of Mineral County, on or about the 9th day of May, 1939, have in his possession public moneys belonging to the County of Mineral;

2. That a check described as follows '11-84 Day & Night Branch 11-84 Bank of America National Trust & Savings Association No1014056 San Francisco, California, May 8 1939 19 Pay to the Order of Treasurer, Mineral County $150.00 Exactly $150-00 cts dollars Cashier's Check A. G. Volz Asst Cashier-Manager' was received on or about the 9th day of May, 1939 by D. M. Buckingham while acting in the capacity of County Clerk and Treasurer of Mineral County;

3. That said above described check was received by said D. M. Buckingham for the purpose of paying to the County of Mineral said money in return for certain road work;

4. That said check was endorsed by said D. M. Buckingham 'For deposit only Pay to the order of First National Bank in Reno 94-2 Reno, Nevada 94-2 D. M. Buckingham Treas. Mineral County';

5. That said above described check was deposited in the First National Bank of Nevada in Reno, Nevada to the credit of D. M. Buckingham, Treasurer of Mineral County;

6. That said D. M. Buckingham acting as County Treasurer of Mineral County failed and neglected to make any accounting of said moneys in the books of Mineral County provided for that purpose and within the period prescribed by law;

7. That the cash and cash items in the Treasurer's office and funds in the depository bank on the 7th day of September, 1939, amounted to a sum only of $11.66 in excess of the amounts shown by the books of Mineral County as chargeable to said Treasurer and did not show any other amount of overage that could be designated as being any part of the above $150.00;

8. That said D. M. Buckingham acting as Treasurer of Mineral County failed and neglected to issue a receipt in triplicate for all moneys received by him during the month of May, 1939 and failed and neglected to immediately file the duplicate with the County Auditor of Mineral County, and failed and neglected to submit to the Board of County Commissioners at its first regular meeting in May, 1939, and every regular meeting by said board thereafter, to the date of the filing of the original Complaint herein, a statement containing a complete record of the source and amount of all receipts, payments from, and balances in all funds, all of which is contrary to the statute so made and provided."

The amended complaint seeks the removal of said Buckingham from the office of clerk and treasurer of Mineral County, Nevada.

On the 13th of October, 1939, the said district court issued a citation requiring the said Buckingham to appear before the said court and the judge thereof to show cause why judgment should not be given and entered as prayed in the amended complaint. Thereafter said Buckingham filed a demurrer to the amended complaint, alleging that the said amended complaint failed to state facts sufficient to constitute a cause of action against said Buckingham, and asking that said proceeding be dismissed. The said demurrer was overruled, and the hearing of the removal proceeding set for January 29, 1940.

On the 18th day of January, 1940, said Buckingham filed herein a petition for a writ of prohibition restraining the said district court and the Honorable Wm. D. Hatton, judge thereof, from taking any further proceedings in said cause. On the same date the said petition was filed, an alternative writ of prohibition was issued by this Court, wherein the respondents were ordered to show cause why a peremptory writ should not issue. Respondents have filed herein a demurrer to the petition, alleging that it is insufficient to entitle the petitioner, D. M. Buckingham, to a writ of prohibition. An answer has also been filed, which admits all of the allegations of the petition except the allegations in paragraphs VI and VII thereof. Said answer raises only questions of law.

Respondents first contend that a writ of prohibition is not a proper remedy for petitioner herein to invoke, and assert that a writ of prohibition will not issue to determine whether or not the complaint states a cause of action, because the sections of the Nevada statute under which this proceeding is brought provide for an appeal, and that the petitioner has a plain, speedy and adequate remedy at law. In support of this contention of respondents many cases are cited, and, of course, the general rule is that ordinarily trial courts will not be required to pause in the hearing of matters under consideration while determination is made by appeal as to the correctness of intermediate orders. However, in a proceeding such as we now have before us, the propriety of such a writ has been sanctioned in the case of Bell v. District Court, 28 Nev. 280, 81 P. 875, 1 L.R.A.,N.S., 843, 113 Am.St.Rep. 854, 6 Ann. Cas. 982. Respondents attempt to distinguish this case upon the ground that in the Bell case the unconstitutionality of the statute in question was apparent, and that no such condition exists here. The finding of this Court as to the unconstitutionality of the statute in the Bell case was arrived at after a hearing. The hearing was granted to afford opportunity to arrive at a finding. The underlying purpose was to prevent possible injustice. It is recognized that courts, on occasion, fall into error in ruling on questions of law. When no occasion exists whereby injustice might result, the correctness of the ruling is tested by an appeal from a final judgment, and not from intermediate orders, thus avoiding delays and other clogging of the judicial machinery. But, as in the instant case, to await the final judgment before testing the correctness of the ruling on demurrer could (in the event the judgment was one of removal) result in irreparable damage to petitioner, in humiliation suffered, the loss of the respect and confidence of constituents, to say nothing of loss of salary and surrender of the office to another. These results are experienced even though the judgment be reversed. In viewing probable results we are not anticipating the judgment--merely recognizing existing opportunity for an injustice to result from unintentional error. Such is the reasoning that permeates the Bell case, supra, as we read it, and the holding therein settles the question adversely to respondents' contention. A final determination as to whether the complaint states a cause of action for removal is just as important on this hearing as was the determination of the constitutionality of the statute in the Bell case, and the propriety of prohibition proceedings rests upon the same principles in both.

Petitioner has advanced certain arguments relative to the unconstitutionality of the statute involved, but the contention is based solely upon the idea that the unconstitutionality would only appear if it be urged that malpractice as used in the statute means something different than malfeasance, appearing in Article VII, Section 4 of the Constitution of Nevada. Respondents concede that "malpractice" as used in the statute means no more and is not different from the word "malfeas...