Washoe County Water Conservation Dist. v. Beemer

• Decision Date: 31 May 1935
• Docket Number: 3109.
• Citation: 45 P.2d 779,56 Nev. 104
• Parties: WASHOE COUNTY WATER CONSERVATION DIST. v. BEEMER, COUNTY CLERK, ET AL.
• Court: Nevada Supreme Court

45 P.2d 779

56 Nev. 104

WASHOE COUNTY WATER CONSERVATION DIST. v. BEEMER, COUNTY CLERK, ET AL.

No. 3109.

Supreme Court of Nevada

May 31, 1935

Original proceeding in mandamus by the Washoe County Water Conservation District against Elwood H. Beemer, as County Clerk and Ex Officio Clerk of the Board of County Commissioners of Washoe County, Nev.

Writ granted.

Price & Merrill, of Reno, for petitioner.

Ernest S. Brown, Dist. Atty., and Nash P. Morgan, Deputy Dist Atty., both of Reno, for respondent.

TABER Justice.

Original proceeding in mandamus.

Petitioner Washoe County Water Conservation District, was organized under the Nevada Irrigation District Act of March 19, 1919, N. C. L. §§ 8008-8097. Its chief purpose was to store and regulate the flood waters of the Truckee river. It is now proposed that $1,000,000 be spent in the acquisition and construction of reservoirs, waterworks, and improvements for upstream storage of the waters of the Truckee river stream system. The money is to be advanced by the United States and repaid, over a long term of years, by petitioner. In order to aid and participate in this project, it is proposed that Washoe county issue bonds in the aggregate amount of $500,000 which is alleged to be a reasonable, proper and equitable proportion of the cost for said county to bear, by reason of the benefits it will derive from such reservoirs and improvements.

In furtherance of said plan, the Legislature passed an act approved February 28, 1935, authorizing the board of county commissioners of Washoe county to aid in the acquisition and construction of such reservoirs, waterworks, and improvements by issuing noninterest-bearing bonds of said county, delivering such bonds to petitioner, and levying and collecting taxes for the payment thereof. Statutes of Nevada 1935, p. 22. After reciting the benefits to be derived by Washoe county from said proposed project, said act authorizes said board of county commissioners to issue bonds as aforesaid, but provides that such bonds shall not be delivered to petitioner until it shall have entered into a contract with the United States, an agency of the United States, or other corporation, public or private, for the acquisition and construction of such waterworks and improvements, or for the payment of moneys required to be paid in connection therewith. The act further provides that all moneys collected by or paid to petitioner under said bonds, and all proceeds thereof, shall be used by petitioner for the purposes aforesaid, and for no other purpose. It is further provided that, if within two years after the approval of said act of 1935, said contract with the United States shall not have been entered into nor delivery of said bonds requested by petitioner, the bonds shall be forthwith canceled by the county treasurer. The act next provides that an annual ad valorem tax be levied and collected for the payment and redemption of said bonds; such taxes to be levied and collected in the same manner as general county taxes. By the terms of the act, Washoe county is authorized to enter into contracts with petitioner, or such parties as may by said county or petitioner be deemed advisable, relating to the financial participation of said county in the costs of such work and improvements.

The United States has agreed to advance $1,000,000 to the petitioner for the acquisition and construction of the reservoirs and improvements aforesaid. This money, according to the allegations of the petition, is available to the petitioner only in the event it proceed immediately to enter into a contract with the United States for the repayment of said money. Petitioner further alleges that it cannot safely enter into such contract with the United States, unless Washoe county will assume its proportion of the cost of the Truckee river upstream project as provided in said act of 1935.

Pursuant to said act, the county commissioners passed a resolution prescribing the form and date of the proposed bonds, and directing the clerk of the board to cause said bonds to be printed and signed, and to do and perform the other acts and things which he is required to do under said act and said resolution. In March, 1935, petitioner demanded of respondent that he proceed to perform the acts required of him, as aforesaid, whereupon respondent declined so to do, upon the ground that he entertained serious doubts as to the constitutionality of said act of 1935, and as to whether bonds issued thereunder would be valid. Petitioner in this proceeding prays that respondent be commanded to do the things required of him by said act of 1935 and said resolution of the board of county commissioners, as aforesaid.

1. Respondent first attacks the constitutionality of said act of 1935 upon the ground that it violates section 10 of article 8 of the Constitution of Nevada. This provision reads as follows: "No county, city, town, or other municipal corporation shall become a stockholder in any joint-stock company, corporation, or association whatever, or loan its credit in aid of any such company, corporation, or association, except railroad corporations, companies, or associations."

We do not find it necessary to decide whether petitioner is a joint stock company, corporation, or association within the meaning of the foregoing provision, because it is not clear that the proposed bond issue would constitute a loan of the credit of Washoe county. Grout v. Kendall, 195 Iowa, 467, 192 N.W. 529; Martens v. Brady,

264 Ill. 178, 106 N.E. 266; Kinney v. City of Astoria, 108 Or. 514, 217 P. 840; Veterans' Welfare Board v. Riley, 188 Cal. 607, 206 P. 631; Bush v. Martineau, 174 Ark. 214, 295 S.W. 9; Ruff v. Womack, 174 Ark. 971, 298 S.W. 222.

The Legislature, by the Act of February 28, 1935, has not authorized Washoe county to become surety for petitioner. The United States, as a part of its national recovery program, is willing to advance the $1,000,000 required for the Truckee river upstream storage project; an enterprise which the Legislature, as well as petitioner and the board of county commissioners of Washoe county, believe will bring about much needed benefits, consisting not only in direct material assistance to petitioner, but also in numerous advantages tending directly and very substantially to the public welfare of Washoe county as a whole. Petitioner, naturally, is chiefly interested in the benefits accruing to it from the proposed project, while Washoe county as a whole is primarily interested in the direct benefits which said project will bring to it through prevention of flood damage, the improvement of sanitary conditions, increase of property values, enhancement of scenic beauties, stimulation of tourist travel, improvement of conditions for fish culture, and other advantages. Petitioner, besides assuming a full half of the cost of this project, must also bear its proportion of the taxes which will be assessed and collected for the redemption of the county bonds. The Legislature has authorized Washoe county, not to lend or give either its money or its credit, but to bond itself for the purpose of taking advantage of an opportunity to participate in a project which it is believed will redound in full measure to the material and lasting prosperity of said county.

Respondent further contends that the act in question violates the due process provisions of the Federal and State Constitutions, the Fourteenth Amendment to the Constitution of the United States, and section 8 of article 1 of the Constitution of Nevada. The only authority cited in support of this position is State v. Churchill County, 43 Nev. 290, 185 P. 459. It is claimed that the purpose of the 1935 act is private, not public; that the taxing of property owners outside the boundaries of the conservation district is for the benefit of those having irrigable lands within said district; and that this is depriving the former of property without due process of law. But the situation here is very different from that presented in the Churchill County Case. It is true that the county bond issue would operate to help petitioner; but it is just as true that the assumption by petitioner of half the cost of the project, in addition to the proportion of county taxes which would have to be paid by owners of irrigable lands within the boundaries of the district, would in turn operate to help the county as a whole. The primary purpose of the proposed bond issue is to enable Washoe county, by co-operating with petitioner and the United States to seize the opportunity to gain for itself lasting benefits of great value; an opportunity which may not again be available, either to petitioner or Washoe county. The act of 1935 is free from the ineffective and unenforceable loaning enterprise which was found to be objectionable by a majority of the members of this court in the Churchill County Case. Whenever the United States, in its recovery program, lends money to aid in the carrying out of such enterprises as the Truckee river upstream storage project, it takes an active interest in them at all stages, supervising and inspecting the work, insisting upon compliance with the terms of carefully prepared contracts, and keeping in close touch with the projects at all times; realizing that upon the success of the project depends the full repayment of the government loan. Assurance is thus not wanting that the project in question here would be completed, with inestimable benefit to Washoe county and petitioner, not to mention an appreciable amount of benefit to the whole state; for that which benefits, substantially and permanently, one portion of the state contributes to the prosperity and well-being of its other portions also.

We are unable to agree with respondent...