Cauble v. Beemer

Decision Date17 February 1947
Docket Number3475.
PartiesCAUBLE et al. v. BEEMER.
CourtNevada Supreme Court

Original proceeding in mandamus by A. E. Cauble and others constituting the Board of Trustees of Washoe General Hospital, against Elwood H. Beemer, as county clerk and ex-offico clerk of the Board of County Commissioners of Washoe County, Nevada, to compel respondent to issue county bonds for reconstruction of the hospital.

Peremptory writ of mandamus issued.

Springmeyer & Thompson, of Reno, for petitioners.

Harold O. Taber, Grant L. Bowen, Gordon R. Thompson and John C Bartlett, all of Reno, for respondent.

HORSEY Justice.

This is a proceeding in mandamus. The petitioners are A. E. Cauble Leo Corvino, Curtis Farr, A. E. Landers and O. C. Moulton, as and constituting the Board of Trustees of Washoe General Hospital.

In brief, the petitioners, in their petition that a writ of mandamus issue, among other things, allege, in substance:

That by a legislative act approved March 27, 1945, St.1945, c. 243 the Board of County Commissioners of Washoe County, Nevada, were authorized to issue the bonds of said Washoe County, not to exceed $750,000, for the construction and reconstruction of said hospital;

That on November 4, 1946, petitioners duly requested said County Commissioners to direct respondent, Elwood H. Beemer, as the County Clerk and ex officio clerk of the said County Commissioners of Washoe County, to issue such bonds, in the form and manner provided by the said statute of March 27, 1945;

That on November 20, 1946, pursuant to said request, the said Board of County Commissioners of said county, by an appropriate resolution, duly directed the said clerk, the respondent herein, to issue said bonds, in the form and manner provided by the said statute of March 27, 1945;

That on November 21, 1946, the petitioners made written demand upon the respondent, that he issue said bonds in accordance with such resolution and said statute;

That on November 22, 1946, the respondent refused, in writing, and still refuses, to issue said bonds, for the reason that he doubts the constitutionality of the said statute of March 27, 1945.

In paragraph 8 of said petition, the petitioners further allege that:

'The public health, safety and general welfare require the issuance of the Writ herein for the reason that an emergency exists in that the physical facilities of the Washoe General Hospital are insufficient and inadequate in the following particulars:
'a. Said hospital because of a large increase in community and transient population is not large enough to accommodate people entitled to hospitalization therein;
'b. Said hospital was constructed many years ago; it is poorly ventilated, its lavatories are overtaxed, and there are general unsanitary conditions.
'c. Because of lack of space, indigent and semi-indigent patients are housed together; the building is without proper isolation wards to segregate patients suffering from contagious or infectious diseases.
'd. The heating plant and the boilers are outmoded and are incapable of properly heating the premises.
'e. The construction of the building is such that a serious fire hazard exists.
'f. Several Washoe County grand jury reports have directed attention to the inadequate, dangerous and unsanitary conditions existing at the hospital. The Washoe County Planning Commission, by resolution in form and manner provided by law, has approved plans for the re-construction of the hospital.'

The petitioners prayed for the issuance of an alternative writ of mandate, and this court, on December 17, 1946, duly issued such an alternative writ, requiring the respondent either to issue said bonds or to appear and show cause, on January 17, 1947, why he had not done so. The respondent failed to issue said bonds, but on December 19, 1946, filed an answer and return, in which he admitted the facts alleged in the above-quoted paragraph 8 of said petition, as well as paragraphs numbered 1, 2, 3, 4, 5, 6 and 7 thereof, and denied the allegations of paragraph 9, in which the petitioners alleged they 'have no plain, speedy and adequate remedy in the ordinary course of law'.

The respondent, in his answer and return, alleges four grounds upon the basis of which he claims the said statute of March 27, 1945, to be unconstitutional. These grounds will be hereinafter stated.

The respondent, in his brief, has presented an additional ground upon the basis of which he claims the said statute of March 27, 1945, is unconstitutional, said additional ground being that the said statute, 'is a local and special law regulating county business'.

The hearing upon the petition and the answer and return was set for, and held on, January 22, 1947, the matter was argued by the respective attorneys, and thereupon duly submitted.

We will now consider, and pass upon, each of the questions presented by the respondent, upon the basis of which he claims the said act of 1945 to be unconstitutional, but shall not follow, precisely, the order in which respondent has presented them.

The respondent claims, in effect, that the tax levy to redeem the proposed hospital bonds provided, by said act of March 27, 1945, to be made by the County Commissioners of Washoe County, is a tax for a private, and not a public, purpose.

The respondent, as the basis of his contention that the purpose of the proposed bond issue is private, has cited, and relied upon, a portion of Sec. 8 of Art. I of the Constitution of the State of Nevada, said portion being as follows: '* * * No person shall * * * be deprived of life, liberty, or property, without due process of law.'

This constitutional provision would be applicable to defeat the constitutionality of said act, if its purpose were private, rather than public. State v. Board of Com'rs of Churchill County, 43 Nev. 290, at page 295, 185 P. 459 (cited by respondent).

The respondent has cited, in support of his contention that the hospital is private, Sec. 2233, Vol. 1, N.C.L.1929, which is as follows: 'Every hospital established under this act shall be for the benefit of the inhabitants of such county or counties, and of any person falling sick or being injured or maimed within its limits, but the board of hospital trustees may extend the privileges and use of such hospital to persons residing outside of such county or counties upon such terms and conditions as said board may from time to time by its rules and regulations prescribe. Every such inhabitant or person who is not a pauper shall pay to the said board, or such officer as it shall designate, a reasonable compensation for occupancy, nursing, care, medicine, and attendance, other than medical or surgical attendance, according to the rules and regulations prescribed by said board; such hospital always being subject to such reasonable rules and regulations of said board may adopt in order to render the use of said hospital of the greatest benefit to the greatest number; and the said board may exclude from the use of such hospital any and all inhabitants, and persons, who shall wilfully violate such rules and regulations.'

Said Section 2233, Vol. 1, N.C.L.1929, is, also, Section 9 of the certain act approved March 27, 1929, and which is entitled: 'An Act to enable counties to establish and maintain public hospitals, levy a tax and issue bonds therefor, elect hospital trustees, maintain a training school for nurses, and provide suitable means for the care of such hospitals and of disabled persons, and repealing a certain act.'

From the title of the act, it is apparent that the Legislature intended, by the act, to confer authority upon, and to enable, counties to establish and maintain public hospitals only, and said Section 9 expressly refers, and applies only, to 'every hospital established under this act', that is to say, when considered in conjunction with the title of the act, every 'public' hospital. So it is clear that the Legislature, in stating, in said Section 9, Sec. 2233, Vol. 1, N.C.L.1929, the purpose of the hospital, intended to state what the members of the Legislature considered to be the appropriate purposes of a public, rather than a private, institution of that nature.

Respondent contends, in his brief, on pages 4 and 5, as follows: 'In the light of the above quoted statute, it is readily apparent that the fundamental difference between the Washoe General Hospital and any so-called 'private' hospital is the free service afforded by the former to paupers. To uphold the Act in question, this Court must determine that that difference alone, places the tax for the benefit of Washoe General Hospital well within the public purpose doctrine. Respondent contends this difference to be insignificant.'

The broad scope of the first sentence of said Section 9 providing, in effect, that 'every hospital established under the act shall be for the benefit of the inhabitants (meaning all of the inhabitants) of such county * * * and of any person falling sick or being injured or maimed within its limits,' far transcends the usual scope of the purposes and duties of a private hospital, not only because it is made the duty of the county hospital to receive, and extend its facilities to, all the inhabitants of the county, as they may have need for them, and to any person falling sick or being injured or maimed within its limits, regardless of the financial ability to pay, of such inhabitants, or of such persons so falling sick or being injured or maimed within the county limits, but, also, because such inhabitants and such persons are absolutely, and without restrictive limitations, required to be received and extended the benefits of the hospital. For instance, the county hospital, under the broad...

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    ...been made applicable. Nev. Const. art. 4, § 21; see Anthony v. State of Nevada, 94 Nev. 338, 580 P.2d 939 (1978); Cauble v. Beemer, 64 Nev. 77, 96, 177 P.2d 677, 686 (1947); Conservation District v. Beemer, 56 Nev. 104, 45 P.2d 779 (1935). For the reasons explained below, A.B. 6, section 18......
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