Carville v. McBride

• Decision Date: 05 January 1922
• Docket Number: 2510.
• Citation: Carville v. McBride, 45 Nev. 305, 202 P. 802 (Nev. 1922)
• Parties: CARVILLE v. MCBRIDE, MAYOR, ET AL.
• Court: Nevada Supreme Court

202 P. 802

45 Nev. 305

CARVILLE v. MCBRIDE, MAYOR, ET AL.

No. 2510.

Supreme Court of Nevada

January 5, 1922

Appeal from District Court, Elko County; James A. Callahan, Judge.

Suit by Ed. Carville against J. A. McBride, Mayor of the City of Elko, T. F. Brennen and others, Supervisors of the City of Elko, and the City of Elko and the Board of Supervisors thereof. From judgment sustaining defendants' demurrer to the complaint, and for defendants upon the merits, and denying a motion for a new trial, plaintiff appeals. Affirmed.

E. P Carville, of Elko, and Hoyt, Norcross, Thatcher, Woodburn & Henley, of Reno, for appellant.

Milton B. Badt and James Dysart, both of Elko, and Brown & Belford of Reno, for respondents.

COLEMAN J.

Appellant having been plaintiff in the court below, the parties will be referred to in this opinion as plaintiff and defendants.

On August 20, 1920, W. T. Smith, the owner of the Elko waterworks, offered to sell the same to the city of Elko for the sum of $150,000. On September 30, 1920, a petition signed by the necessary number of property owners, was filed with the board of supervisors of the city, praying that the board negotiate for the purchase of said water system. Thereafter the mayor and board of supervisors took action leading to the acquisition of said water works, and for the issuance and sale of the bonds of said city in the sum of $180,000, the proceeds of which were to be used in the payment of the waterworks and in improving the same.

At a regular meeting of the board of supervisors, held on November 3, a petition was filed by 20 per cent. of the qualified electors of the city of Elko as shown by the last-preceding registration list, and representing more than 10 per cent. of the taxable property in the city, as shown by the last-preceding tax list or assessment roll, asking for a special election upon the question as to whether or not the proposed ordinance should become a law. The clerk of the board certified to the sufficiency of the petition and the signatures thereto attached. Upon information and belief the city board accepted the petition, and resolved to call an election on the proposition for the 4th of January, 1921. This date was later changed by resolution of the board to the 11th day of January, 1921, on which date the election was held. At such election a majority of 25 votes was cast in favor of the issuance and sale of the bonds. Thereafter the board of supervisors declared the ordinance an emergency ordinance, and passed the same.

Prior to the election, the county clerk, acting as the registry officer for the city election, registered for the election only those electors within the city of Elko who were qualitied taxpayers, and whose names appeared upon the tax roll for the year 1920 or 1921. No person was permitted to register or vote at the election except qualified electors who were taxpayers within the city, and whose names appeared upon the tax rolls thereof for the year 1920 or 1921.

This action was commenced in the Fourth judicial district court in and for the county of Elko, by plaintiff, on behalf of himself and all other persons similarly situated, to obtain an injunction restraining the defendants from proceeding to acquire a certain public utility known as the Elko Waterworks, and from issuing bonds for the purpose of purchasing said waterworks for the city of Elko and enlarging and maintaining the same.

The defendants filed both a demurrer and answer to the complaint, and the case was heard upon both the demurrer and the merits at the same time. The court sustained the demurrer, and also made findings of fact, and decided the case upon the merits in favor of the defendants. A motion for a new trial having been denied, plaintiff appealed, and urges four propositions as reasons for reversal of the judgment.

The city of Elko was incorporated by a special act of the Legislature (Stats. 1917, c. 84), and its authority to issue bonds exists in pursuance thereof.

The first contention made is that the election is void, for the reason that qualified electors were deprived of the right to vote thereat. To sustain this position it is said that to have been a qualified elector at said election one did not have to be a taxpayer and have his name appear upon the tax roll. The determination of this question turns upon the construction of section 77 of the charter of the city of Elko (Stats. 1917, p. 171), which reads:

" ' Taxpayer' Defined.--A 'taxpayer,' within the meaning of this charter, shall be construed to be and include all persons whose names appear on the official tax roll for the current or the year preceding that in which the elector offers to vote. The judges or officers of election shall have power, and it is hereby made their duty in all cases of special elections on bonds or franchises, to require of each person offering to vote thereat to show by the affidavit of such person that he possesses the qualifications prescribed; provided, that such judges or election officials may require further proofs for, as well as against, the right of any person to vote, when such right is challenged by a duly qualified elector."

What is the purpose of that portion of section 77 defining a taxpayer, if the term "qualifications prescribed," as used in the last sentence, does not refer to the qualifications mentioned in the preceding sentence? Counsel for appellant say that this question is easily answered; that its purpose was to fix the qualifications of a taxpayer, because section 6, c. 2, of the charter (Stats. 1917, p. 132) provides that the mayor and each of the four supervisors of the city, in addition to other qualifications, shall be property owners and taxpayers in the city. We are satisfied that such could not have been the intention of the Legislature. Pursuant to section 6, to qualify candidates for mayor and supervisors they shall be "for at least two years immediately preceding their election residents of the city of Elko, qualified voters who are property owners and taxpayers."

Under section 77, it is essential that one offer to vote to determine the year in which his name must appear on the tax roll. If the view urged by counsel in behalf of plaintiff be correct, it is necessary that the mayor and supervisors offer to vote at the election at which they are chosen; otherwise they are not taxpayers, and hence not qualified to hold office. If through sickness, or other unavoidable cause, the officers mentioned, or any of them, fail to offer to vote at the election at which they are chosen, they would be liable to be ousted from office, if plaintiff's contention is sound, notwithstanding they had in fact been owners of extensive property interests in the city for years, upon which they had annually paid taxes, and were otherwise qualified. This we say would be the logical result of the contention presented in the circumstances mentioned.

That the interpretation contended for might lead to absurd results is obvious. This of itself is sufficient to warrant the court in looking with disfavor upon the suggested interpretation, if a logical one can be found. The sentence of section 77, alluding to "qualifications prescribed," deals with persons offering to vote, just as does the preceding sentence of the section; and to construe the words "qualifications prescribed" as applying to those qualifications in the sentence immediately preceding would not only be reasonable, but natural, in view of the fact that those qualifications appear in the same section of the act. In fact, if the words "qualifications prescribed" do not refer to the qualifications mentioned in the sentence immediately preceding, it is impossible to ascertain to what they do refer. Hence, not only by a process of exclusion, but by one of inclusion, as well, we are inevitably led to the view that the only logical solution of the question is to hold that the words "qualifications prescribed" refer to those mentioned in section 77.

But we do not deem it necessary to confine ourselves to the view expressed in reaching the conclusion that the judgment should be affirmed. This court, in State v. Ruhe, 24 Nev. 251-260, 52 P. 276, quoted approvingly the following:

"In the American and English Encyclopedia of Law, vol. 6, p. 289, it is said: 'If a registry is had under an unconstitutional law and an election held upon the basis of such registry, there can be little, if any, doubt that the election will be held valid unless it is shown that a sufficient number of legal voters to have changed the result were prevented by such law from casting their ballot.' "

It does not appear from the pleadings, or from the findings of the trial court, that a sufficient number of legal voters, not being taxpayers, offered to vote and were denied that privilege because they were not taxpayers to change the result of the election.

Though the same principle is not involved as in those cases wherein the rule is asserted that one who is not affected by a statute cannot question its constitutionality (State v Beck, 25 Nev. 69, 56 P. 1008), the same line of reasoning sustains the principle we have invoked. In the one case a person cannot attack the constitutionality of a law when his rights are not affected by it, whether it be constitutional or unconstitutional; in the other, though his primary right to vote may...