State v. Curler

• Decision Date: 13 March 1902
• Citation: 67 P. 1075,26 Nev. 347
• Parties: STATE ex rel. OFFICE SPECIALITY MFG. CO. v. CURLER, Judge.
• Court: Nevada Supreme Court

67 P. 1075

26 Nev. 347

STATE ex rel. OFFICE SPECIALITY MFG. CO. v. CURLER, Judge.

Supreme Court of Nevada

March 13, 1902

Application by the state, on the relation of the Office Specialty Manufacturing Company, for mandamus against B. F. Curler judge, to compel respondent to appoint appraisers under St 1900, p. 93. Writ denied.

Torreyson & Summerfield, for relator. W. H. A. Pike, Dist. Atty., of Washoe Co., for respondent.

MASSEY C.J.

In 1901 the legislature passed an act entitled "An act authorizing the adjustment and payment of certain claims against counties of this state" (St. 1901, p. 93), by which, briefly stated, it was provided that whenever any county had within five years prior to the passage of the act acquired any property of the value of $500 or more, for which no compensation had been received and retained by the person firm, or corporation furnishing the same, by reason of the contract for furnishing the same being adjudged void for not having been entered into in accordance with the provisions of the act of the legislature entitled "An act supplementary to an act entitled 'An act to create a board of county commissioners in the several counties of this state and to define their duties and powers,' approved March 8, 1865," approved February 19, 1867 (St. 1867, p 59), the person, firm, or corporation furnishing such property shall have the right at any time within 60 days after the approval of the act to petition the district judge of the district including the county retaining such property for the appointment of three disinterested persons as appraisers of such property, and the district judge shall hear such petition, and upon the hearing of such petition shall appoint three disinterested persons to appraise such property, and said appraisers shall within 15 days thereafter meet and appraise such property for its reasonable value, and shall, upon such determination, certify to the district judge the amount for which they, or a majority of them, have appraised such property, and thereupon the district judge shall certify to the county auditor the amount which the appraisers have placed upon said property, and, upon the county auditor receiving the certificate of the judge, he shall draw his warrant upon the general fund of the county for the amount so certified to him, and shall deliver the same to the person entitled to it, provided that said property shall not be appraised for an amount in excess of that stipulated in the void contract. The relator claimed the benefit of the provisions of this act, by petitioning the respondent, the district judge of the district including Washoe county, for the appointment of the appraisers named in the act. The matter was heard by the respondent upon various matters and objections raised by Washoe county, represented at the hearing by its district attorney; and upon such hearing the respondent refused to appoint the appraisers, basing his refusal upon the unconstitutionality of the act cited. Thereupon the relator brings mandamus in this court to compel respondent to appoint the appraisers provided for in this act, and to certify the amount of any appraisement made to the county auditor, as thereby required.

The preliminary motion of the respondent to quash the alternative writ and dismiss the proceeding, based upon the fact, appearing upon the face of the relator's petition herein, that the writ was not issued upon the application of the person beneficially interested, but was issued upon the unauthorized application of the state, will be first considered and determined herein. While it is true that proceedings in mandamus, under our statute, are of a civil nature, yet an examination of the cases brought in this court shows that it has been almost the universal rule of practice, when private interests only have been involved, to entitle the action in the name of the state on the relation of the person beneficially interested; and we are not disposed at this late day to disturb this settled rule of practice concerning a mere matter of formal title, the continuation of which does not in the least affect injuriously the rights of the state or of parties seeking the enforcement of the remedy. In reaching this conclusion we are not without ample support in the statutes and decisions of the court. In the case of State v. Gracey, 11 Nev. 227, this court recognized this rule, and it has since been acted upon by both bench and bar. The statute prescribing the method of procedure also justifies and supports the rule. It does not prescribe in what form the proceeding shall be entitled (Comp. Laws 1900, § 3543); neither does it require that the writ shall be issued upon complaint provided for in ordinary civil actions. On the contrary, that section authorizes the issuance of the writ upon affidavit and application of the party beneficially interested, which, to say the least, partakes very much of the character of a motion upon affidavit under our civil practice act; and while it is the practice to consider the affidavit for the purpose of determining whether the showing made is sufficient upon which to base the issuance of the writ, or to entitle the party to the relief demanded, yet it may well be doubted, under the provisions of another section of the civil practice act ( Id. § 3602), relating to informalities and defective titles in affidavits, whether any title whatever is necessary to make it sufficient as a basis, where it appears from the affidavit that the remedy is sought by the party beneficially interested. The fact is sufficiently shown by the affidavit in this proceeding, and the motion to quash and dismiss will therefore be denied.

Many objections have...