State v. McCullough
| Citation | 18 P. 756,20 Nev. 154 |
| Decision Date | 03 July 1888 |
| Docket Number | 1,285. |
| Parties | STATE ex rel. ATTORNEY GENERAL v. McCULLOUGH. |
| Court | Supreme Court of Nevada |
Information in the nature of quo warranto.
John F Alexander, Atty. Gen., for relator.
J. D Edwards, for respondent.
On the 23d day of April, 1888, an information in the nature of quo warranto was filed in this court, alleging, in substance, that the relator was the attorney general of the state, and ex officio a member of the board of the state prison commissioners; that among the powers of the board was that to appoint a warden of the state prison; that in the exercise of this power, the board had appointed the defendant; that upon the 18th day of April, 1888, it had removed him, but that he had refused, and still refuses, to obey the order of removal, and continues to exercise the functions of the office. Defendant, answering, denies the authority of the board in the premises, and claims title to the office by virtue of an election by the legislature upon the 12th day of January, 1887. No issue of fact is raised by the pleadings. The issue is one of law; the question being whether the power to appoint the warden rests in the legislature or in the board. The parties to the present proceeding endeavored to obtain a judicial determination of this question in a recent proceeding, under circumstances tending to show the object of the present suit. In that case the information, which was filed on the 2d day of April of the present year, alleged that the board was vested with the authority to appoint a warden, and that defendant had usurped the office. The answer expressly admitted the authority, and set up title to the office by virtue of an appointment by the board. Upon this state of the case, no issue was presented, and the case was therefore dismissed. Afterwards the board of state prison commissioners made the order of removal before mentioned, and instituted the present proceeding.
The fact that the opposing parties upon the record of the previous suit entirely agreed as to the law and facts of the case, and that it was dismissed because no issue was raised and because an issue was made immediately thereafter by the alleged dismissal of the warden, induced us to inquire of counsel in open court touching the purpose of this suit. The attorney general frankly admitted that defendant was removed for no other reason than to obtain a decision as to the power of the board in the premises; and we infer, from answers made to questions touching the course to be pursued by the board, that it will reappoint defendant, should its power to appoint a warden be affirmed in this proceeding. In other words, whatever may be the result of this litigation, defendant will remain the warden. It is plain that no real dispute exists between the parties. As admitted, the case has been made for the purpose of obtaining the decision of the court upon a question of constitutional law. These facts alone require the dismissal of the case. But the requirement is strengthened, and the proceeding further condemned, by the consideration that a decision upon the merits might be used as a precedent in litigation involving the same question, which may arise whenever the legislature and the board do not agree upon a warden. It would seem that this is the only practical purpose of this suit. If the question should ever arise in the regular course of litigation, the parties interested should have the opportunity of presenting their views unaffected by the...
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