McDonald v. Beemer

• Decision Date: 27 June 1950
• Docket Number: No. 3628,3628
• Citation: 67 Nev. 419,220 P.2d 217
• Parties: McDONALD v. BEEMER.
• Court: Nevada Supreme Court

Page 217

220 P.2d 217

67 Nev. 419

McDONALD v. BEEMER.

No. 3628.

Supreme Court of Nevada.

June 27, 1950.

Echeverria & Young, of Reno, for petitioner.

Harold O. Taber, District Attorney, Washoe County, of Reno, for respondent.

EATHER, Justice.

This application for a writ of mandamus presents squarely for determination the constitutionality of an act of the legislature applying to Washoe County alone, and dividing that county into two commissioner districts.

Petitioner alleges that he is a citizen, taxpayer and legally qualified voter of Washoe County; that respondent is the county clerk and ex-officio clerk of the board of county commissioners of said county and is charged with the duty of accepting and filing a declaration of candidacy from any qualified individual who desires to be a candidate for district office voted for wholly within one county, and that a declaration of candidacy for the office of county commissioner of Washoe County, Nevada, may be properly filed with respondent; that petitioner has attempted to file with respondent such declaration of candidacy, properly executed and acknowledged, together with the statutory filing fee, and complying in all respects with the requirements for such filing; that respondent refuses to accept such filing unless petitioner registers as a resident of a particular district of said county; that in addition to his interest in being a candidate, petitioner, as a taxpayer, desires to have said county properly and validly governed and to exercise his franchise in a valid election and that the matters involved are of public and general interest to the people of said county and that the determination thereof is necessary to prevent serious embarrassment in regard to the elections of said county; that the closing date for filing declarations of candidacy is rapidly drawing near (July 17, 1950), and that a prompt determination of the matter is vital to the interests of the public and the taxpayers and electors of Washoe County. That mandamus is the proper remedy under such circumstances has heretofore been held by this court. State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P. 424. Respondent's answer to the petition admits all of the allegations thereof, but recites that respondent is prohibited from accepting petitioner's declaration of candidacy for the office of county commissioner, absent the statement therein that the petitioner is a qualified elector and resident of the district for which he is a candidate, by the provisions of Chapter 30, Statutes of Nevada, 1933, p. 25, entitled 'An Act to establish commissioner districts in the county of Washoe, and providing for the election of members of the board of county commissioners thereof,' and reading as follows:

'Section 1. Within ninety days after the passage and approval of this act the board of county commissioners of Washoe County shall divide said county into two commissioner districts, with the following boundaries for each of said commissioner districts:

'(a) All that portion of Washoe County known as the voting precincts of Reno and Verdi, and all that portion of the county of Washoe south of the city of Reno shall be known as commissioner district No. 1.

'(b) All the remaining portion of Washoe County not included within the boundaries of district No. 1 as described in subdivision (a) of this section, shall be known as commissioner district No. 2.

'Sec. 2. At the general election in 1934 and at each general election thereafter there shall be elected in district 2 a commissioner who shall serve for two years. At the general election in 1934 and at each general election thereafter there shall be elected in district 1 a commissioner who shall serve for four years.

'Sec. 3. The board of county commissioners of said Washoe County shall establish election precincts within such county in such manner that each and every election precinct shall be wholly within some one of said commissioner districts.

'Sec. 4. Candidates for the office of county commissioner for the respective districts shall be qualified electors and residents of the districts for which they are candidates.' (Italics supplied.)

Petitioner's reply asserts that this act is unconstitutional and reiterates his prayer for the writ commanding respondent to accept petitioner's declaration of candidacy without the requirement insisted upon by respondent.

Our attention is first directed to 'An Act to create a Board of County Commissioners in the several counties of this State and to define their Duties and Powers,' Statutes 1865, p. 257, as amended, being sections 1935 et seq. N.C.L., which act provides for the election of county commissioners by the qualified electors of each county and definitely requires that such commissioners be themselves qualified electors of their respective counties. It is the contention of petitioner that this general act must govern the matter of the election of county commissioners for Washoe County unless the commissioners, acting under the authority and in the manner provided in a later general act of the legislature proceed to divide the county into commissioner districts.

Such later general act is that enacted by Statutes 1893, p. 33, being 'An Act to define the manner of electing County Commissioners,' sections 1 and 4 of which, being respectively sections 1964 and 1967, N.C.L.1929, read as follows:

'Commissioner Districts. § 1. Whenever twenty per cent or more of the qualified electors of any county in this state shall petition the board of county commissioners of their county to that effect, it shall be the duty of the county commissioners of such county, on or before the first Monday in July preceding any general election, to divide the county into three districts to be known as 'commissioner districts.' Such division shall be made to conform to the established boundaries of election precincts or wards, and each and every election precinct or ward shall be wholly within one of the commissioner districts herein provided for. Each commissioner district shall embrace, as near as may be, one-third of the voting population of the county, to be determined by the vote cast at the last general election, and shall consist of adjoining precincts; provided, that in case not more than three election precincts or wards exist in the county, then each election precinct or ward shall constitute a commissioner district.'

'Electors. § 4. County commissioners shall be elected by the qualified electors of the county wherein they reside as other county officers are now elected.'

It first becomes necessary to lay the 1933 act alongside the constitutional provisions having to do with the legislative powers. Section 20 of Article IV of the state constitution, N.C.L., sec. 71, reads in part: 'Legislative Powers Restricted. § 20. The legislature shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * regulating county and township business; regulating the election of county and township officers * * *.'

Section 21 of said Article being sec. 72, N.C.L., reads as follows: 'Laws General And Uniform. § 21. In all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform operation throughout the state.'

Section 25...