Cirac v. Lander County, 11886

• Decision Date: 02 November 1979
• Docket Number: No. 11886,11886
• Parties: Don L. CIRAC, Appellant, v. LANDER COUNTY et al., Respondents, Andrea Burton, Intervenor.
• Court: Nevada Supreme Court

Page 1012

602 P.2d 1012

95 Nev. 723

Don L. CIRAC, Appellant, v. LANDER COUNTY et al., Respondents, Andrea Burton, Intervenor.

No. 11886.

Supreme Court of Nevada.

Nov. 2, 1979.

Rehearing Denied Dec. 10, 1979.

Woodburn, Wedge, Blakey & Jeppson, and Daniel J. Klaich, Reno, for appellant.

George G. Holden, Dist. Atty. of Lander County, Battle Mountain, and Thomas L. Belaustegui, Reno, for respondents.

OPINION

MANOUKIAN, Justice:

This is an appeal from an order of the district court granting summary judgment. The order had the effect of denying plaintiff-appellant's request for injunctive relief against respondents Lander County Board of Commissioners, and others, as a result of respondents' approval of a petition by taxpaying electors to place the question of the relocation of the county seat on a special election ballot.

Four questions confront us. They are: (1) Whether injunctive relief is the proper remedy; (2) Whether respondent board acted beyond the scope of its authority in validating signatures on the county seat removal petition of persons not listed on the tax assessment roll; (3) Whether the board's decision to allow the additional signatures was supported by sufficient evidence; and (4) Whether as a result of voter approval, this appeal is rendered moot.

On December 7, 1978, a petition was filed with Emma F. Gandolfo, then County Clerk of Lander County, seeking to have the question of moving the Lander County seat from Austin to Battle Mountain placed before the county electorate at a special election. The petition contained 949 signatures. At the direction of the Board of County Commissioners, an examination of the signatures on the petition was conducted by various county officers who were to report thereon to the board at a public meeting duly noticed and called for January 5, 1979.

At the meeting of January 5, 1979, the board heard reports from former County Clerk Emma F. Gandolfo, County Assessor Dorothy Estes, and County Treasurer Don Bruce. The County Assessor reported as to the number of signers who were listed on the real and personal property tax roll. The Treasurer gave a similar report as to real property taxpayers. The Clerk reported on miscellaneous irregularities such as duplicate signatures. No other evidence was received. The Board approved 882 of the signatures on the petition as meeting the statutory requirements. At the last general election in Lander County, 1410 legal votes were cast. Sixty percent of that number, or 846 signatures of qualified electors and taxpayers, are required for a county seat removal petition before the petition can be found sufficient and an election ordered on the removal question. NRS 243.465. Because the number of signatures approved by the Board exceeded the required 846 signatures, the petition was found sufficient and the board ordered the county seat removal proposition placed on a special election ballot. The special election was subsequently set for May 15, 1979.

Of the 882 signatures approved by the Board, seventy-one were of persons whose names did not appear on either of the Lander County tax rolls. Without the inclusion of these signatures, the removal petition would be insufficient as a matter of law. The seventy-one names approved by the commissioners were of persons married to taxpayers actually listed on the county rolls. For each of the unlisted spouses, an affidavit of community property interest was filed along with the petition. The commissioners determined that the seventy-one unlisted spouses had a community property interest in taxed property and were, therefore, within the intendment of NRS 243.465, even though their names could not be found on the tax rolls.

On April 4, 1979, appellant filed a complaint for injunctive relief to prohibit the Board of Commissioners from placing the county seat relocation question before the voters. Prior to the hearing, Andrea Burton, a respondent herein, was permitted to intervene. At a hearing on May 11, 1979, four days before the scheduled election, the lower court granted summary judgment for respondents and intervenor. On May 15, 1979, the voters of Lander County approved the move of the county seat from Austin to Battle Mountain by a vote of 748 to 417.

1. Jurisdiction.

The threshold issue is that of jurisdiction. We must determine whether or not an injunction is a proper vehicle with which to resolve a question concerning the propriety of the acts of a county commission in conducting an inquiry into the sufficiency of the removal petition. ¹ It is suggested here, as it was in Lauritzen v. Casady, 70 Nev. 136, 140, 261 P.2d 145, 146 (1953), and Caine v. Robbins, 61 Nev. 416, 426-27, 131 P.2d 516, 520 (1942), that an injunction is not the proper remedy because no irreparable injury is shown and because the purpose of the election is wholly political as distinguished from elections involving proprietary or pecuniary interests. Although this court has held that we will not interrupt an election process by preventing an issue from being presented to the voters, Beebe v. Koontz, 72 Nev. 247, 252-53, 302 P.2d 486, 489 (1956); See Brown v. Georgetta, 70 Nev. 500, 275 P.2d 376 (1954), it is well settled that an injunction will lie in the lower court to prohibit an election when the ballot question, if passed, would involve election expenditures as well as the considerable expense of relocating the county seat and obvious irreparable injury. Lauritzen v. Casady, 70 Nev. at 140, 261 P.2d at 146; Caine v. Robbins, 61 Nev. at 426-27, 131 P.2d at 520. See NRCP 65. This is particularly so where, as here, the challenge to the qualifying petition was timely filed below and the election has now been concluded so that the election itself is not interrupted with our consideration. Compare Beebe v. Koontz, 72 Nev. at 252-53, 302 P.2d at 489 (no good cause shown for belated challenge) And Harrison v. Board of County Commissioners, 68 Idaho 463, 198 P.2d 1013 (1948) (improper suit in equity after election) With Lauritzen v. Casady, 70 Nev. at 137-38, 261 P.2d at 145 (sufficiency of petition properly challenged prior to election).

If respondent board transcended its statutory authority in conducting the inquiry of the qualifying petition, then the board itself was without jurisdiction to call an election. Thus, the question of the board's jurisdiction is the substantive issue required to be decided. A resolution of this issue, to which we now turn for consideration, will necessarily be dispositive of this appeal.

2. The Unlisted Names.

Nevada law specifically provides for the removal of a county seat and requires a petition be signed by taxpayers "as appears by the last real or personal property assessment roll . . . ." NRS 243.465. ² This petition must be signed by persons equal in number to those casting sixty percent of the legal votes at the last general election. Id. When such petition is filed, the board of county commissioners must "meet and inquire into and determine the sufficiency of the petition and the validity of the signatures . . . ." NRS 243.470. If there is a sufficient number of signatures, an election must be held.

In the instant case, the board validated seventy-one signatures of persons whose names did not appear on the tax rolls but who allegedly held a community property interest in property listed on the rolls under the name of a spouse. Without these signatures the qualifying petition would have been insufficient.

In a previous case, this court held, under a predecessor of the present statute, that a person who does appear on the tax assessment roll is qualified to sign a petition. State ex rel. Kaufman v. Martin, 32 Nev. 197, 205, 106 P. 318, 319-20 (1910), Construing 1900 Nev.Comp. Laws § 5007. There, the board of county commissioners removed the signatures of forty-two persons whose names actually appeared on the assessment rolls but only in a partnership capacity. We held the action of removal of signatures to be error but did not address the issue whether names could be added. The court in Kaufman also held that a petitioner would not be disqualified if he possessed "the substantial qualifications and (was) a taxpayer and voter as indicated." Id. at 205, 106 P. at 320. Some signers had not registered for the previous special election but had registered for the general election. Such was sufficient compliance with the statute requiring signatures of "qualified electors."

The standard of construction to be used in the present case is crucial. We query whether there must be strict compliance with the language requiring a person to be a taxpayer "as appears by the last real or personal property assessment roll" or a liberal construction which allows signatures of those who are taxpayers but do not appear as such?

A. Application of Strict Construction. This court has previously demanded "strict adherence to the authentication requirements of the Constitution governing an initiative petition." Lundberg v. Koontz, 82 Nev. 360, 366, 418 P.2d 808, 811 (1966). And "when the language of a statute is plain, its intention must be deduced from such language, and the court has no right to go beyond it." State ex rel. Hess v. Washoe County, 6 Nev. 104, 107 (1870).

In an early Montana case, it was determined that the board of county commissioners could not disregard names which were actually on the poll books and assessment rolls. In order to find that number on the county seat removal petition to be the percentage required, the board removed from the rolls names of those who had ceased to be legal voters or taxpayers since the last records were made. Ainsworth v. McKay, 55 Mont. 270, 175 P. 887, 887-88 (1918). There the statute provided the board "shall compare such petition with the poll books . . . (and) the listed assessment roll . . . ." Id. at 887. The court held that when there are no constitutional restrictions, the legislature can prescribe the chosen test.

If ...