State v. Second Judicial Dist. Court in and for Churchill County

• Decision Date: 02 March 1908
• Docket Number: 1,746.
• Citation: State v. Second Judicial Dist. Court in and for Churchill County, 94 P. 70, 30 Nev. 225 (Nev. 1908)
• Parties: STATE ex rel. WILLIAMS v. SECOND JUDICIAL DISTRICT COURT IN AND FOR CHURCHILL COUNTY et al.
• Court: Nevada Supreme Court

94 P. 70

30 Nev. 225

STATE ex rel. WILLIAMS v. SECOND JUDICIAL DISTRICT COURT IN AND FOR CHURCHILL COUNTY et al.

No. 1,746.

Supreme Court of Nevada

March 2, 1908

Application for writ of prohibition by the state of Nevada, on the relation of Warren Williams, against the Second judicial district court of Nevada in and for Churchill county and John S. Orr and W. H. A. Pike, judges of said court.Writ denied.

E. L Williams, for relator.

Wm. S Wall, for respondents.

TALBOT C.J.

This is an application for a writ of prohibition to restrain respondents from entering a decree declaring the town of Fallon duly incorporated, designating its classification, or appointing commissioners for calling an election of officers for the town under "An act providing for the incorporation of cities, their classification, the establishment and alteration of their boundaries, the government and disincorporation thereof, and repealing all acts and parts of acts in conflict therewith," approved March 27, 1907.St. 1907, p. 241, c. 125.It is admitted that compliance has been made with section 2 of the act, which provides: "Whenever a majority of the qualified electors who are taxpayers within the limits of the city or town proposed to be incorporated, as shown by the last official registration lists and assessment roll, not embraced within the limits of any city or incorporated town shall desire to be organized into a city or incorporated town, they may apply in writing to the district court of the proper county, which application shall describe the territory to be embraced in such city or incorporated town, and shall have annexed thereto an accurate map or plat thereof, duly surveyed and containing the streets and alleys, and state the name proposed for such city or incorporated town, and shall be accompanied with satisfactory proof of the number of inhabitants within the territory embraced in said limits, for purposes of classification under the provisions of this act."It is sought to prevent respondents from proceeding under section 3 of the act, the fore part of which directs: "When such application shall be made as aforesaid the court, being satisfied of its legal sufficiency, shall thereupon enter a decree declaring said city or town duly incorporated under the provisions of this act and shall designate its classification and shall forthwith appoint five commissioners, who shall at once call an election of all the qualified electors residing within the territory embraced within said limits, and shall give notice, for thirty days, of the time and place of holding the first election of officers for said city or town by publication in a newspaper, or, if none be published within the limits of such city or town, by posting in five public places within the limits of the same.At such election the qualified electors of such city or town residing within the limits of such city or town shall choose officers therefor, to hold until the first annual election of officers according to its grade, as hereafter in this act prescribed."

The facts are admitted, but it is claimed that the act is in contravention of the Constitution, in that it attempts to confer legislative power upon the district court, and that relator would be subjected to increased taxation on his lands within the boundaries of the proposed town, a part of which are platted and a part of which are not.Article 3 of the Constitution provides: "Section 1.The powers of the government of the state of Nevada shall be divided into three separate departments-the legislative, the executive and the judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted."Article 8, § 1: "The Legislature shall pass no special act in any manner relating to corporate powers, except for municipal purposes; but corporations may be formed under general laws; and all such laws may, from time to time, be altered or repealed."Section 8 of the same article directs that "the Legislature shall provide for the organization of cities and towns by general laws."

Is the part of the act quoted in conflict with the Constitution?Does it attempt to confer legislative powers upon the district court?The conflict in the numerous decisions bearing on these questions in various states is for the most part more apparent than real, owing to the fact that the constitutional and statutory provisions are usually different.We are not aware that legislation similar to our act has been held invalid under any Constitution as favorable to its support as ours.It will be observed that under section 1 of article 8the Legislature is authorized to pass special acts relating to municipalities, and it has accordingly by specific bills created a number of cities and towns in this state.To save the time and detail work required by separate acts for every town that might desire incorporation the Legislature at its last regular session passed the general law which is here challenged.It contains more than 100 sections, and provides at length for the government and disincorporation of cities, as well as for their establishment and alteration.Instead of being prohibited by the Constitution, it would seem to be specially authorized by the language of section 8 of article 8, directing that "the Legislature shall provide for the organization of cities and towns by general laws."A general law being so authorized and having been enacted, it is essential that some one be designated to ascertain and declare the facts which would bring any community under its provisions as an incorporation, and that necessary provision be made for its execution.The Legislature has seen fit to authorize a majority of the qualified electors and taxpayers as shown by the last official registration list and assessment roll to determine whether the town or city shall be incorporated, and, if they make proper application in writing to the district court of the county, the court, being satisfied of its legal sufficiency, shall enter a decree declaring the city or town duly incorporated and designate its classification.If there is compliance with the required conditions, the court has no discretion in regard to refusing or granting the petition or allowing or denying the right of incorporation.It is not authorized to pass any law regarding the incorporating, management, or government of the town, nor as a matter of expediency to determine whether incorporation ought to be allowed or refused.The court is empowered to ascertain whether the acts necessary to constitute incorporation under the law have been complied with, and, if they have, to declare as a result that the city or town is duly incorporated.Although it is often necessary for the Legislature and for executive officers to ascertain facts, the authority conferred on the district court to determine whether a majority of the qualified electors and taxpayers have made application sufficiently describing the territory to be embraced in the city or incorporated town and with a map or plat thereof duly surveyed and containing streets and alleys and the proposed name, and whether it is accompanied with satisfactory proof of the number of inhabitants, is a power more judicial than legislative in its nature, and more in line with the usual duties of courts.We are unable to see that the vesting of this power in the district court is unconstitutional or improper.Some of the decisions holding that the power to incorporate towns or cities cannot be delegated by the Legislature related to acts which attempted to confer discretion upon the court or designated officers in the allowance or rejection of the application for incorporation.Still other opinions have failed to distinguish between the delegation of legislative power and the mere determination or declaration of facts which would bring the town under the provisions of the law directly enacted by the Legislature.The weight of authority, and especially the later decisions, hold that powers such as are here conferred on the district court are judicial rather than legislative, and are properly delegated.

In a Tennessee case relied upon by relator (State v Armstrong, 3 Sneed, 634), decided in 1856, "An act to authorize the formation of companies, and regulate private and local affairs and to retrench the expenses of legislation"(Acts1855-56, p. 514, c. 254), which conferred upon the circuit courts the power to grant charters and corporations upon the conditions therein prescribed, except for banking purposes, was held unconstitutional as attempting to delegate legislative power which could not be conferred.It was said in the opinion that the act was designed, as manifested from the purposes avowed in the bill, as well as from the express terms of the first section, as an unqualified transfer of the exercise of the power to grant corporate privileges from the Legislature to the courts, and probably was intended to exhaust the power of the Legislature in respect at least to all such corporations as were within the purview of the act.That case is readily distinguishable from the one now before us and from the later one in that state (Mayor v. Shelton, 1 Head, 24), in which it was held not to apply to an act similar in principle to ours, and in which it was said: "This statute establishes a general and complete system of municipal government for towns, cities, and villages, and provides *** the mode by which the inhabitants of any particular town may adopt and organize under it.They shall apply by petition to the county court, setting forth their desire to avail themselves of its privileges,...