State v. White

• Decision Date: 05 November 1913
• Docket Number: 2,088.
• Citation: 136 P. 110,36 Nev. 334
• Parties: STATE EX REL. DAVIES v. WHITE ET AL.
• Court: Nevada Supreme Court

136 P. 110

36 Nev. 334

STATE EX REL. DAVIES v. WHITE ET AL.

No. 2,088.

Supreme Court of Nevada

November 5, 1913

Proceeding for mandamus by the State, on the relation of C. O. Davies against Fred L. White and others, as the City Council of the City of Reno, County of Washoe, State of Nevada. Writ denied.

Dixon & Miller, of Reno, for relator.

E. F Lunsford, City Atty., of Reno, for respondents.

NORCROSS J.

This is an original proceeding, upon notice, for a peremptory writ of mandamus commanding respondents, as the city council of the city of Reno, to submit a certain proposed ordinance designated ordinance No. 184, to a vote of the electors of the said city of Reno at a special election to be called for that purpose, in accordance with the initiative and referendum provisions of the act incorporating the city of Reno. The character and purpose of the proposed ordinance sought to be submitted to the electorate of the city of Reno is sufficiently indicated by its title which reads: "An ordinance directing the issue of a license or licenses to C O. Davies for the keeping or conducting of a restaurant on the island in the Truckee river known as 'Belle Isle,' with the privilege, in connection therewith, of selling, furnishing, serving or otherwise disposing of wine, malt and spirituous liquors in sealed packages."

It is conceded that the petition for the submission of the ordinance is in due form and contains the requisite number of signatures of qualified electors to meet the requirements of the initiative and referendum provisions of the city charter, but it is the contention of respondents that nevertheless the writ ought not to issue for the reason that the subject-matter of the proposed ordinance is not such a subject-matter as could be enacted into a valid ordinance and for the further reason that the provisions of the city charter providing for the initiative and referendum of city ordinances are unconstitutional for the reason that they were enacted prior to the adoption of the amendment of the state Constitution relative to the initiative and the referendum. As it is unnecessary to consider the constitutional question raised, the same will not be determined.

The proposition that a writ of mandate will not issue to compel respondents to submit to the electors of the city a proposed ordinance that would be void even if approved by a majority of the electors is too clear for discussion or the citation of authorities. It remains only to consider whether the proposed ordinance would be valid if enacted. The proposed ordinance is special in character, designed to grant to a single individual a privilege in which the public at large has no interest or benefit.

By the provision of section 10 of article 12 of the city charter, the city council is invested with power "to fix, impose and collect a license tax on, regulate, prescribe the location of or suppress, * * * any and all places where intoxicating drinks are sold or given away." Stats. 1905, p. 121, c. 71.

It is admitted in this proceeding that general ordinances are in force in the city of Reno under the provisions of which the relator could have applied for a license such as is sought to be obtained through the enactment of the special ordinance under consideration, and that such application could be granted or refused by the city council. It is a serious question whether the proposed ordinance is not directly violative of the city charter which invests a certain discretion in the city council in the matter of granting or refusing liquor licenses.

If violative of the provisions of the charter, it would for that reason be void.

It is sufficient to hold the ordinance void upon the broad ground that it grants a special privilege to a single individual to conduct a private business of a character subject to general police regulations and in which no public interest can be said to be subserved.

"A by-law will be held bad when it appears to have been passed not to subserve the interests of the corporation (that is, the public) but those of some private person or class of persons." McQuillin on Municipal Ordinances, § 39. The same author says: "The general requisites of a valid municipal ordinance, one legally binding upon all whom it is designated to operate, may be thus briefly summarized: * * * (3) It must relate to a subject within the scope of the corporation. (4) It must be in harmony with the Constitution of the United States and the state, the laws of the United States and the state, the municipal charter and general principles of the common law in force in the state. * * * (10) It must be enacted in good faith, in the public interest alone, and designed to enable the corporation to perform its true functions as a local governmental organ." Section 14. Numerous authorities are cited by the author to support the text. See, also, Lewis v. Webb, 3 Me. (3 Greenl.) 326; City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312, 13 L. R. A. 587, 28 Am. St. Rep. 180.

The authorities cited by counsel for relator all go to the question of the right to the writ of mandamus, assuming that the proposed ordinance would be a valid municipal law if enacted. Neither in the brief nor the oral argument of counsel for relator has there been an authority cited that would support the validity of the proposed ordinance. In view of the fact that the city attorney had advised the city council in effect that the proposed ordinance would be void if enacted because it granted a special privilege, and that the city council had refused to submit the proposed ordinance to popular vote because of this...