State v. Osburn

• Decision Date: 24 January 1898
• Docket Number: 1,519.
• Parties: STATE ex rel. FLETCHER v. OSBURN et al.
• Court: Nevada Supreme Court

51 P. 837

24 Nev. 187

STATE ex rel. FLETCHER v. OSBURN et al.

No. 1,519.

Supreme Court of Nevada

January 24, 1898

Application by the state, at the relation of A. G. Fletcher, against R S. Osburn and others, as the city council of Reno, for a writ of certiorari to review the proceedings of the city council in advertising for bids for the purchase of bonds, etc. Dismissed.

F. H Norcross, for relator. Torreyson & Summerfield, for respondents.

Curler & Curler, amici Curiæ.

MASSEY J.

The city of Reno is incorporated under the provisions of that certain act, entitled "An act to incorporate the town of Reno," approved March 8, 1897. The respondents were named in the act as constituting the city council for a certain term, at the expiration of which they should be succeeded by members chosen at the general election. Sections 34 and 35 of said act authorize the city council to borrow money or to issue bonds in a limited amount for the purpose of procuring water and the erection of water-works for the city, if, upon the submission of a proposition, "a majority of the votes cast of the duly-qualified electors residing within the corporate limits of the city of Reno, as shown by the last preceding official registration are in the affirmative." St. Nev. 1897, p. 59. In like manner, the city council was authorized to borrow money or issue bonds for the purpose of establishing an electric light plant or gas works. Id. p. 60. Under the provisions of said sections, an election was held on the 7th day of October 1897, and a canvass of the votes cast thereat showed a majority in favor of said propositions; and the city council under the authority of said provisions, and the said election, by resolution duly adopted, advertised for bids for the purchase of bonds for the purpose of constructing waterworks and an electric light plant, and for bids for plans and specifications for the same. The relator asks us, upon a review of the proceedings, to annual the action of the city council in the premises, assigning as reasons therefor the unconstitutionality of the act incorporating the city of Reno, and specifically citing 12 provisions of our constitution whereof the act is violative.

Proceedings in certiorari in this state have been regulated by statute. It has been denominated a "writ of review." "This writ will be granted on application by any court of this state, except a justice's, or recorder's, or mayor's court; the writ shall be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy." Gen. St. 1885, § 3458. "The review upon this writ shall not be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer." Id. § 3464. It will be seen from the above statutory provisions, that the power of the court in this proceeding is limited to a review of those acts only that are judicial in character, and that are in excess of jurisdiction, and then only in case there is no right of appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy. This court has repeatedly and uniformly held that the inquiry upon this writ would not be extended further than was necessary to determine whether the inferior tribunal, board, or officer has exceeded its jurisdiction, or has regularly pursued its authority. Phillips v. Welch, 12 Nev. 158. The supreme court of California, under similar statutes, has so held; and that court, in a recent case, in construing the two sections of statutes similar to the sections above quoted, held that "the clause in section 1074, Code Civ. Proc., 'whether the inferior tribunal had regularly pursued the authority of such tribunal,' is to be construed as the equivalent of the clause ' has exceeded the jurisdiction of such tribunal,' in section 1068." Quinchard v. Board of Trustees, 45 P. 856. That court, in the same case, say: "The character of the act or determination sought to be reviewed, rather than the tribunal or officers by which the act or determination is made, is the test for determining whether the writ should be issued."

If, then, we pass upon the constitutionality of the act incorporating the city of Reno, we are not determining whether the city council of that city exceeded its jurisdiction in ordering bonds to be sold for the purposes indicated, and advertising for bids to purchase such bonds, but we are passing upon the right of respondents to exercise the functions of city council, and upon the validity of the corporate existence of the city of Reno. This we do not believe we have the power or authority to do, under the limitations of the regulative statute above cited. Further, the questions involving the constitutionality of the act incorporating the city of Reno, and involving the corporate existence of that city, and the right of the respondents to exercise in any manner the functions of city council under the act incorporating the city, must and can be determined by another proceeding, plain, speedy, and adequate. Under the provisions of an act regulating proceedings in quo warrant, approved February 21, 1865, a private individual may file an information against any "person unlawfully holding or exercising any public office or franchise within this state, *** or when any persons act as a corporation within this state, without being authorized by law, *** or when they exercise powers not conferred by law." Gen. St. 1885, §§ 3711, 3724. By the provisions of the same act, the form of judgment in such proceedings is indicated, and precedence over all other proceedings, except criminal actions, in order and time of trial, is given. Id. §§ 3722, 3723, 3736. It seems clear to us that the language "or when any persons act as a corporation within this state without being authorized by law" is sufficiently broad to include persons acting as a city board of a municipal corporation without authority of law. If the act incorporating the city of Reno is unconstitutional, as claimed by the relator, then the respondents are acting as a corporation without authority of law; and, under the express provisions of the statute, quo warranto is the proper remedy under which to determine that question.

This position is amply supported by authorities. Under a private law of the state of Illinois, approved February 20, 1861 creating the board of education of the city of Quincy, the exclusive control and management of the public schools of that city were given to that board. The statute revising the law in relation to quo warranto provided "that in case any person shall usurp, intrude into or unlawfully hold, or execute any office or franchise, *** or any association or number of persons shall act within this state as a corporation without being legally incorporated, or any corporation does or omits any act which amounts to a surrender or forfeiture of its rights and privileges as a corporation, or exercises powers not conferred by law, *** the attorney general, or state's attorney of the proper county, either of his own accord or at the instance of an individual relator, may present a petition *** for leave to file an information in the nature of a quo warranto. *** Rev. St. Ill. 1874, p. 787. Action was commenced in quo warranto against the board of education of the city of Quincy,...