State v. Donovan

• Citation: 15 P. 783,20 Nev. 75
• Decision Date: 22 November 1887
• Docket Number: 1,274.
• Parties: STATE ex rel. PATTERSON and others v. DONOVAN.
• Court: Supreme Court of Nevada

15 P. 783

20 Nev. 75

STATE ex rel. PATTERSON and others v. DONOVAN.

No. 1,274.

Supreme Court of Nevada

November 22, 1887

Application for mandamus.

W. E F. Deal and M. N. Stone, for relators.

F. M Huffaker, Dist. Atty., for respondent.

HAWLEY J.

This is an application for a writ of mandamus, to compel respondent, the sheriff of Storey county, to issue a license to relators to carry on a game of faro in a back room on the first floor of the International Hotel building in Virginia City. It is alleged in relators' petition, and admitted by respondent, "that Storey county is the only county in the state that cast fifteen hundred votes, or over, at the last general election." This proceeding was instituted for the purpose of testing the validity of section 7 of "An act to restrict gaming," approved March 8 1879, which reads as follows:

"Sec. 7. None of the above-mentioned games shall be carried on, nor shall any license issue to carry on the same, in any room of the first floor or story of any building; and when any building has two first floors or stories, the other being or fronting on another street, then, and in such case, no license shall issue to carry on any of said games in any room on or in either of said first floors or stories of such building: provided, that in any county in which, at the general election next preceding the time of application, were polled less than fifteen hundred votes, or in any county created after said general election, the licensee shall be entitled to carry on his game in any back room of the first or ground floor of any building; and if any person carrying on any of said games shall knowingly permit to enter or remain in any licensed room, any person under the age of twenty-one years, he shall be deemed guilty of a misdemeanor, and shall be punished by the same penalties for violation of its provisions as are prescribed in section 1 of this act." St. 1879, p. 116; Gen. St. 1263.

Section 1, to which section 7 refers, reads as follows: "Each and every person who shall deal, play, carry on, open, or cause to be opened, or who shall conduct, either as owner or employe, whether for hire or not, except under a license as hereinafter provided, any game of faro, *** shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than one thousand dollars, or by imprisonment in the county jail not less than three months, nor more than one year, or by both such fine and imprisonment."

Relators claim that the clause in section 7 which requires the withholding of a license to carry on the game in any room on the first floor or story of any building in counties polling 1,500 votes and over is local and special legislation, and is in conflict with the provision in section 20, art. 4, of the constitution, which prohibits the legislature from passing any local or special laws "for the punishment of crimes and misdemeanors," and that it also conflicts with section 21 of said article of the constitution.

The question as to what is and what is not local or special legislation has been so frequently and thoroughly discussed by this court as to render it unnecessary to again reiterate the general principles relating thereto. The facts presented in this case simply call in question the power of the legislature to make the classification specified in section 7. The general power to make a classification of counties, based upon a voting population, is expressly recognized in Youngs v. Hall, 9 Nev. 226; State v. Woodbury, 17 Nev. 355; and State v. Boyd, 19 Nev.--, 5 P. 735. The right of the legislature to exercise this power is subject to many limitations and restrictions, several of which are stated in the Boyd Case. All acts or parts of acts attempting to create a classification of counties or cities by a voting population, which are confined in their operation to the existing state of facts at the time of their passage, or to any fixed date prior thereto, or which by any device or subterfuge excludes the other counties or cities from ever coming within their provisions, or based upon any classification which, in relation to the subject embraced in the act, are purely illusory, or founded upon unreasonable, odious, or absurd distinctions, have always been held unconstitutional and void. The legislature has no power or authority to pass such acts. State v. Boyd, 19 Nev.--, 5 P. 735, and authorities there cited; State v. Hermann, 75 Mo. 340; State v. Mitchell, 31 Ohio St. 607; Woodard v. Brien, 14 Lea, 520; Heightstown v. Glenn, 47 N. J. Law, 106; Devine v. Commissioners, 84 Ill. 592; Davis v. Clark, 106 Pa. St. 384; Morrison v. Backert, 112 Pa. St. 322, 5 A. 739.

Does the classification as made in section 7 of the act under consideration come within any of the limitations above stated? Section 7 is based upon a voting population "at the general election next preceding the time of application" for a license. It is not limited to such counties only as may have been within the classification at the date of its enactment. It is not restricted in its operation to any particular county or counties. It is general in its terms and applies uniformly to all the counties in the state, and its operation and effect is to be determined by the increase or decrease of the voting population in the respective counties. At the time the act was passed there were four counties in the state that at the last general election had cast over 1,500 votes. The mere fact that at the present time there is but one county that at the last general election polled...