Pershing County v. Sixth Judicial Dist. Court

• Decision Date: 06 August 1919
• Docket Number: 2396,2397,2401.
• Citation: 183 P. 314,43 Nev. 78
• Parties: PERSHING COUNTY et al. v. SIXTH JUDICIAL DIST. COURT et al. STATE ex rel. PERSHING COUNTY v. EBERT et al. ODEN v. PETERSON et al.
• Court: Nevada Supreme Court

183 P. 314

43 Nev. 78

PERSHING COUNTY et al. v. SIXTH JUDICIAL DIST. COURT et al.

STATE ex rel. PERSHING COUNTY v. EBERT et al.

ODEN v. PETERSON et al.

Nos. 2396, 2397, 2401.

Supreme Court of Nevada

August 6, 1919

On rehearing. Former opinion adhered to.

For former opinion, see 181 P. 960.

R. M Hardy, of Lovelock, and Moore & McIntosh and Norcross Thatcher & Woodburn, all of Reno, for petitioners.

Warren & Hawkins and Thomas A. Brandon, all of Winnemucca (Edward F Treadwell, of San Francisco, Cal., of counsel), for respondents.

SANDERS J.

Rehearings are not granted as a matter of right (Twaddle v Winters, 29 Nev. 108, 85 P. 280, 89 P. 289), and are not allowed for the purpose of reargument, unless there is reasonable probability that the court may have arrived at an erroneous conclusion. State v. Woodbury, 17 Nev. 337, 30 P. 1006.

In this case we are satisfied that the opinion answers satisfactorily all the points raised in opposition to its conclusions, but, as some question of doubt is raised as to the extent to which the decision goes, we take the liberty of summarizing for the benefit of counsel what is actually decided:

First. A county is a political subdivision of a state, through which, for the most part, its sovereign powers are exercised.

Second. The law creating Pershing county out of a part of Humboldt county is, as a whole, constitutional.

Third. That the said law is not abridged, limited, or restricted by the initiative or referendum clause of our Constitution, and that the taking effect of the said law is not thereby suspended.

Fourth. That the completed law is not local, special, and municipal legislation within the meaning of the referendum clause of the Constitution that reserves to the qualified electors of a specified county the power to approve or reject at the polls legislation of every character in or for such specified county.

In arriving at these conclusions we applied long-established principles:

First. Unless a limitation exists in the Constitution of a state, the power of the Legislature is absolute, by general or special statute, to provide the change of the boundaries, the division, addition, consolidation of existing counties, or the creation and organization of new counties. This doctrine finds its reason in the "essential nature of counties as political subdivisions of the state and as the creatures of its sovereign will."

Second. The whole matter of the division of counties and the creation of new ones is in its nature political, and not judicial, and belongs wholly to the legislative department of the government. Riverside Co. v. San Bernardino Co., 134 Cal. 520, 66 P. 788.

Third. In construing the referendum as applied to legislation for counties, we applied the usual rules of construction applicable to the construction of laws enacted in the usual way, keeping in mind that "the thing to be sought is the thought expressed" (State v. Doron, 5 Nev. 399), and that it was the duty of this court, if possible, to give to the language of the measure such a construction as to make effective the reservation of power on the part of the people, and not to presume anything from its language that would negative the material inferences that may be drawn from "the people's law" (McClure v. Nye, 22 Cal.App. 248, 133 P. 1145; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656).

From the application of these principles and rules of construction we concluded that the statute creating Pershing county out of the territory of Humboldt county was, as a whole, constitutional, and further held that such act was not of the class of legislation referred to and embraced by the referendum; hence the asserted right of the people of Humboldt county to veto the law creating Pershing county by their ballots became a political question, and this court was without authority to adjudge matters of this kind between the two counties.

Counsel insist that the broad and comprehensive language of the referendum reserves to the people of a county the right to determine whether the act creating a new out of the old should become operative. The principal argument so earnestly advanced in support of this proposition is that it is a "local law" within the meaning and contemplation of the provision of the referendum as applied to counties, and they further insist that the opinion so declared. We do not recede from the declaration that the law is "local" legislation, but not for Humboldt county within the meaning of the word "local" as used in the referendum. The act is "local" legislation, for the reason that a general law could not be made applicable to such cases. Evans v. Job, 8 Nev. 322.

"It is not denied that the Legislature has power to erect a county, that is, to define its territorial limits and boundaries by special act, and thereby to subdivide one or more old counties, because it is said such action is clearly a part of proper legislative power not prohibited, and no general law could in such case be made applicable." State v. Irwin, 5 Nev. 111.

Neither do we recede from the declaration that the creation of a new county necessarily affects the territory out of which it is carved; but it does not follow that such a law affects the corporate existence of the old, its government, or its status as a political subdivision of the state. Neither does it destroy or impair its usefulness as a component part of the scheme of state government. It retains all its power, right, duties, and privileges, and remains subject to all its duties and obligations to the state, and is in no sense affected, injured, or damaged, except that its dominion and control is reduced to a less area of territory than that formerly occupied, to which its inhabitants, it is conceded, or must be conceded, have no vested right.

Neither do we recede from the declaration made in the opinion (though not material to the issue) that, if any one be entitled to vote on the proposition whether the completed act should become operative, it should be the people of Pershing county. On them especially rest the privileges, responsibilities, and burdens of the new county. People v. Kennedy, 207 N.Y. 533, 101 N.E. 442, Ann. Cas. 1914 C, 616. But counsel argue that this reasoning is illogical, because Pershing county at the time the officers of Humboldt county called an election had not been created. If this be so, then why do counsel importune us to protect the political rights of the people of Humboldt county to determine whether the law that created Pershing county should become operative? But they assert that, conceding it to be a completed law, it is a law for Humboldt county. If this be true, we apprehend that the people of Pershing county would be here protesting...