State v. Dickerson

Decision Date31 December 1910
Docket Number1,892.
Citation113 P. 105,33 Nev. 540
PartiesSTATE ex rel. WHITE v. DICKERSON, Lieutenant Governor.
CourtNevada Supreme Court

Syllabus by the Court.

The Legislature, representing the people of the state, has the sole authority to enact and repeal statutes, and in this regard its power is supreme in all matters of government where not prohibited by constitutional limitations, state or federal.

Questions relating to the wisdom, policy, and expediency of statutes are for the people's representatives in Legislature assembled, and not for the Governor or the courts to determine.

Each of the three departments of government, the legislative executive, and judicial, is supreme in the powers conferred upon it by the Constitution, and no department has the right to control or interfere with the powers delegated to another department.

Neither the Legislature nor the courts can compel the Governor to perform acts which would be in conflict with the powers and prerogatives conferred upon him by the Constitution. As to these he is absolute.

The Governor may recommend the passage of laws, and may veto bills passed by the Senate and Assembly; but when an act not in conflict with the Constitution passes both houses of the Legislature, and is approved by him or passes over his veto it becomes binding, and no person is above a law so enacted. As he cannot prevent its passage over his veto, he is powerless to set aside a statute after it has become a law.

The Governor may be required to comply with an act of the Legislature, approved by the chief executive at the time of its passage, which directs him to perform a ministerial duty which could have been enjoined upon any other officer or agent of the state, and which in no way is limited by or relates to the gubernatorial powers or privileges specified in the Constitution.

The provision in the act entitled "An act to require the acceptance and collection of grants, devises, bequests, donations, and assignments to the state of Nevada," approved February 26, 1901 (Laws 1901, c. 19), that "whenever any grant, devise, bequest, donation, or gift or assignment of money, bonds, or choses in action shall be made to this state, the Governor is directed to receive and accept the same, so that the right and title to the same shall pass to the state," imposes a ministerial duty upon the Governor which could have been conferred as well upon any other officer or person, and which in no way conflicts with or pertains to the constitutional powers or prerogatives of the Governor, excepting that it is his duty to enforce this and other statutes under section 7 of article 5 of the Constitution, which provides that "he shall see that the laws are faithfully executed." He is nowhere empowered to set aside the law because he may not agree with its policy. He is as much unauthorized to prevent the reception of the bonds as if the Legislature had directed the State Treasurer instead of the Governor to accept them for the state.

As the Supreme Court is authorized to finally construe the laws, and is empowered by the Constitution and statute to issue writs of mandamus "to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station," and as the Lieutenant and Acting Governor is in no way excepted from these provisions or empowered to abrogate the statute, a writ of mandamus will issue directing him to comply with the requirement of the act of the Legislature and accept the bonds, the same as a writ would issue requiring any other officer or person to perform in compliance with the statute, a ministerial act, where no discretion is imposed and no constitutional provision is infringed. Otherwise, he could refuse, contrary to the statute, and merely for reasons of his own, to accept cash, or United States or other bonds, of the value of hundreds of thousands or millions of dollars, tendered for the benefit of the university, or schools, or charities of the state, or could decline to observe or obey any other act of the Legislature, notwithstanding he is especially obligated by his oath and by the Constitution to faithfully execute the laws.

As the Constitution authorizes the issuance of writs of mandamus regardless of the value involved, and the bonds tendered with their coupons are of the face value of over $400,000, and the respondent introduced no proof to support the allegations in his answer that the bonds are of no value, their value, which depends upon the result of a suit, need not be proven in advance by the petitioner in order to entitle him to a writ of mandate requiring their acceptance preliminary to a suit to determine their validity, and which would also establish their value. As with other negotiable instruments their value is presumed.

If any amount is required to authorize the issuance of a writ of mandate when there is a real contest, the amount in controversy, which ordinarily controls in determining the jurisdiction of the courts, may be considered to be the same in a mandamus proceeding preliminary and incidental to an action on the bonds that it would be in a suit to recover judgment upon them, which is their face value. In suits upon notes and bonds and in actions for damages, it is not necessary to prove the value of the claim in advance of the trial.

Doubtful questions relating to the legality or validity of, or right of recovery upon, bonds, or to their repudiation, or the statute of limitations, and which may be properly tried and adjudicated in an action between the holder and the obligor, need not be determined in the absence of the obligor in a proceeding for a writ of mandate requiring their acceptance by the chief executive preliminary to the bringing of a suit for the recovery of a judgment upon them against the obligor. It is not the duty of the chief executive nor of the courts upon application for writ of mandate to determine these questions in advance and possibly adversely to the acceptance of the bonds by the state and to their validity so as to set aside the statute and will of the Legislature, prevent a suit, and deprive the proper tribunal, the Supreme Court of the United States, passing upon the objections made to the legality of the bonds.

If the court has any discretion to refuse the writ of mandate relating to a matter concerning the public interest, where a party is clearly entitled to it, it ought not to exercise that discretion by refusing the writ when such refusal would abrogate the plain language of the statute.

The contention of the Lieutenant and Acting Governor that the acceptance as directed by the statute of repudiated bonds of a sister state, tendered to this state as a donation, would disturb the harmonious relations existing between the two states, and that for certain legal reasons the bonds cannot be collected, raises a question for the Legislature in the first instance and for the judiciary in the second, neither of which is within the functions of the executive or justifies his refusal to accept the bonds.

The Lieutenant and Acting Governor having refused to accept, pursuant to the terms of the statute, repudiated bonds of the state of North Carolina, of the face value of over $400,000, upon the ground, among others, that their acceptance would tend to disturb the friendly relations existing between the states, and a writ of mandate requiring such acceptance having been ordered upon the eve of the convening of the Legislature, the execution of the writ will be stayed in order to give that body, which has sole control of the legislative policy of the state regarding matters of such public interest, an opportunity to determine whether it will, for the reasons advanced by the executive, or for other considerations, amend the law so that the acceptance of the bonds by the state will not be required.

Mandamus by the State, on the relation of L. F. White, against D. S. Dickerson, Lieutenant Governor and Acting Governor of Nevada. Writ granted, and service and execution thereof suspended.

Norcross C.J., dissenting.

Campbell, Metson, Drew, Oatman & Mackenzie, for petitioner. Horatio Alling, for respondent.

TALBOT, J. (after stating the facts as above).

This proceeding is based upon a petition for a writ of mandate, asking that the Lieutenant Governor, who, under a provision in the Constitution, has been the Acting Governor since the death of Gov. Sparks, be required to accept, on behalf of the state, 145 bonds of the state of North Carolina, which, with their unpaid interest coupons, are of the par value of $401,170, under an act of our Legislature approved February 26, 1901, entitled "An act to require the acceptance and collection of grants, devises, bequests, donations and assignments to the state of Nevada," which reads as follows:

"Section 1. That whenever any grant, devise, bequest, donation or gift or assignment of money, bonds or choses in action or of any property, real or personal, shall be made to this state, the Governor is hereby directed to receive and accept the same, so that the right and title to the same shall pass to the state; and all such bonds, notes or choses in action or the proceeds thereof when collected, and all other property or thing of value, so received by the state as aforesaid, shall be reported by the Governor to the Legislature, to the end that the same may be covered into the public treasury, or appropriated to the State University or to the public schools, or to state charities as may be hereafter directed by law.
"Sec. 2. That whenever it shall be necessary to protect or assert the right or title of the state to any property so received or derived as aforesaid, or to collect or reduce into possession any bond, note, bill or
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    • West Virginia Supreme Court
    • 24 Noviembre 2020
    ...Miller , 52 Mont. 562, 160 P. 513 (1916) ; State ex rel. Wright v. Savage , 64 Neb. 684, 90 N.W. 898 (1902) ; State ex rel. White v. Dickerson , 33 Nev. 540, 113 P. 105 (1910) ; Cotten v. Ellis , 52 N.C. 545 (1860) ; State ex rel. Watkins v. Donahey , 110 Ohio St. 494, 144 N.E. 125 (1924) ;......
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    ...compelling legislature to affix on a bill a different date of passage). 34. Nev. Const. art. 3, § 1(1). 35. See State v. Dickerson, 33 Nev. 540, 562, 113 P. 105, 111 (1910). 36. Id. 37. I recognize the majority's concern that failure to provide immediate appropriations to fund the DSA will ......
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