Ex parte Goddard

• Decision Date: 06 July 1920
• Docket Number: 2435.
• Citation: 190 P. 916,44 Nev. 128
• Parties: EX PARTE GODDARD.
• Court: Nevada Supreme Court

190 P. 916

44 Nev. 128

EX PARTE GODDARD.

No. 2435.

Supreme Court of Nevada

July 6, 1920

Original proceeding in habeas corpus by Lee Goddard. Proceeding dismissed, and petitioner remanded to custody.

Richard W. Young, Jr., of Salt Lake City, Utah, for petitioner.

Leonard B. Fowler, Atty. Gen., Robert Richards, Deputy Atty. Gen and Hoyt, Norcross, Thatcher, Woodburn & Henley, of Reno, for respondent.

COLEMAN C.J.

This is an original proceeding in habeas corpus, to procure the discharge of the petitioner from the custody of the sheriff of Elko county, who holds him pursuant to proceedings had upon three separate complaints charging him with violating what is commonly known as the Sheep Commission Law (Stats 1919, c. 82, p. 134). The statute in question creates the state board of sheep commissioners, which is empowered to make and enforce rules and regulations for the quarantining dipping, or other treatment of sheep. Section 11 of the act provides:

"All sheep which are kept or herded within the limits of the state of Nevada shall, between the fifteenth day of April and the first day of November of each year, be dipped under the supervision of an authorized sheep inspector in one of the dips which have been recommended by the board; the said dip to be specified by the board and to be of a strength sufficient to eradicate scabies, ticks or lice."

Section 12 reads, in part, as follows:

"Whenever the Governor of the state shall have good reason to believe that any disease covered by this enactment has become epidemic in a certain locality in any other state or territory, or that conditions exist that render sheep liable to convey disease, or whenever the board shall certify to the Governor that conditions exist that render sheep likely to convey disease, the Governor shall forthwith, by proclamation, schedule such locality or localities and prohibit the importation from them of any sheep into this state until such time as the said proclamation shall be raised or modified by the Governor. Any person, company, or corporation, or any agent, servant, or employé thereof, who after the publication of such proclamation shall knowingly receive in charge any sheep from any of the prohibited districts, or transport, convey, or drive the same within the boundaries of any county of this state, shall be deemed guilty of a misdemeanor, and shall be punished as provided in section 26 of this act."

Section 15 of the act provides:

"All sheep or bucks imported to Nevada from any state territory, or District of Columbia, or from any foreign country, shall, upon entering the state, irrespective of the time of such entry, be dipped twice under the supervision of an inspector of the board, the first dipping to be performed within ten days after the said sheep or bucks arrive in the state, and within a period of not less than ten days or more than fourteen days after the said first dipping the said sheep or bucks shall again be dipped; and after the second dipping, if the said sheep or

bucks are free of disease, they shall be released and shall thereupon become subject to the laws, rules, and regulations governing other sheep in the state; provided, however, that the board may make reasonable rules and regulations, under which sheep and bucks free from disease may enter the state without dipping, or by being dipped only once. The board is hereby authorized to take charge of and dip as soon as possible any sheep and bucks imported into the state of Nevada not previously dipped within the period required by this section, and the expenses for so doing shall be paid by the owner of said sheep or bucks and the same shall become a lien upon such sheep or bucks until paid. Any person, firm, or corporation, or any servant, agent, or employé thereof, who is the owner or in charge or control of any sheep or bucks imported into the state of Nevada, violating the provisions of this section, shall be deemed guilty of a misdemeanor and shall be punished as provided for in section 26 of this act."

Section 9a of the rules adopted by the state board of sheep commissioners, and in force during all times mentioned herein, reads:

"All sheep other than bucks imported or driven into the state of Nevada, from any other state, shall be accompanied by a health certificate not more than ten (10) days old, signed by a state veterinarian, deputy state veterinarian, inspector of bureau of animal industry or any authorized sheep inspector, stating the sheep are free of disease or exposure thereto, and have not been in any district infected with scabies for the period of six (6) months. Sheep accompanied by the above-described certificate may be admitted without dipping."

One of the complaints upon which the petitioner is held alleges that on or about April 12, 1919, the Governor of the state of Nevada did, by proclamation, schedule the state of Idaho as a locality where scabies, a contagious disease, was epidemic, and thereby prohibited the driving into or transporting of sheep from any part of Idaho into the state of Nevada, and that such proclamation was in force and effect at the time the petitioner is charged with driving the sheep in question from said state of Idaho into the state of Nevada.

Counsel for petitioner says in his brief that if the arrest and detention of the petitioner under either of the complaints in question is in violation of his constitutional rights he must be discharged, since the act in question must be considered as a whole, and if a part thereof is bad, it must all be held null and void. This court has repeatedly held that, even though a portion of a statute is null and void, no other portion thereof will be affected thereby unless it is dependent upon the portion which is null and void (State v. Commrs. Humboldt County, 21 Nev. 235, 29 P. 974; Ex parte Arascada, 44 Nev. 30, 189 P. 619); and it is also a well-established rule that if a party's rights are not affected by a statute, or a part thereof, its constitutionality will not be considered upon his application (State v. Beck, 25 Nev. 68, 56 P. 1008; 6 R. C. L. p. 89); and if the petitioner must be held for violating either of the sections of the act in question, even though there be a section which is void, but of which the section he violates is independent, we do not deem it our duty to consider the constitutionality of any other section thereof, for he certainly could be punished only once for the same act.

From a written stipulation entered into between counsel, and on file herein, it appears that the proclamation of the Governor of Nevada is a "lawful" one. This concession, taken broadly, it would seem, necessarily disposes of the matter; for if it is a lawful proclamation, we must assume that the law authorizing such action on the part of the Governor is constitutional, and that he had good reason to believe that the state of Idaho was an infected territory. But in view of the contention of counsel for petitioner, we are at a loss in reaching a conclusion as to just what is meant by the stipulation mentioned.

In the written brief, as well as in the oral argument, counsel bases petitioner's right to a discharge upon three grounds: (1) That the...