Bell v. First Judicial District Court

28 Nev. 280 | Nev. | 1905

By the Court,

Noroross, J.:

This is an' original proceeding to obtain a writ of prohibition restraining and prohibiting respondent, the district court above named, and Hon. M. A. Murphy, judge thereof, from further proceeding, other than to make an order of dismissal, in a certain action in said court pending, entitled "A. Summerfleld, Complainant, v. William Bell, J. E. Davidson, and James Russell, Defendants. Accusation.” The issuance of the writ is demanded upon the grounds, first, "that said court has no jurisdiction of the parties, or the subject of said action”; second, "that said court has no jurisdiction of the parties, or of the subject of said action in the manner and form therein assumed to be exercised by said court.”

The defendants in said action, petitioners herein, are regularly elected, qualified, and acting officers of the said county of Esmeralda, as follows: The said William Bell and James Russell are the justice of the peace and constable, respectively, of Goldfield township, and the said J. E. Davidson is the district attorney of the county. The action sought to be ■prohibited by this proceeding was instituted by the complainant, A. Summerfield, a citizen and taxpayer of said county, for the purpose of removing said petitioners from office for alleged malfeasance. The proceeding was brought under the provisions of sections 59 to 62 of an act entitled "An act relating to elections,” approved March 12, 1873 (Stats. 1873, p. 209, c. 121; Comp. Laws, 1642-1645), which sections read as follows:

"Sec. 59. If any person now holding or who shall hereafter hold any office in this state, who shall refuse or neglect to perform any official act in the manner and form as now prescribed by law, or who shall be guilty of any malpractice or malfeasance in office, shall be removed therefrom as herein prescribed.

"Sec. 60. Whenever any complaint in writing, duly verified by the oath of any complainant, shall be presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office as prescribed by law, or has been .guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the party charged to appear before him on a certain day, not more than ten nor less than five days from the time when said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence offered by the party complained of, and if, on such hearing, it shall appear that the charge or charges of said complaint are sustained, the court shall enter a decree that said party complained of shall be deprived of his office, and shall enter a judgment for five hundred dollars in favor of the complainant and such costs as are allowed in civil cases.

" Sec. 61. It shall be the duty of the clerk of the court in which such proceedings are had to transmit, within three days thereafter, to the governor of the state, or board of county commissioners (as the ease may be) of the proper county, a copy of any decree or judgment declaring any officer deprived of any office under this act; and it shall be the duty of the governor or such board of county commissioners (as the case may be) to appoint some person to fill said office until a successor shall be selected or appointed and qualified; and it shall be the duty of the person so appointed to give such bond and security as are prescribed by law and pertaining to such office.

"Sec. 62. In case judgment of the district court, as herein provided, shall be against the officer complained of, and an appeal taken" from the judgment so rendered, the officer so appealing shall not hold the office during the pending of such appeal; but such office shall be filled as in case of a vacancy.”

It is contended by petitioners that the foregoing sections of the act, under which the said proceedings were instituted, are violative of the state constitution, and hence void, and that therefore the court had no jurisdiction in the premises. Upon the other hand, counsel for respondent takes the position that prohibition is not an appropriate remedy to- determine the constitutionality of an act or provisions thereof, and that therefore this proceeding should be dismissed, without passing upon the merits of the legal questions presented. Unquestionably this proceeding would be improper, if petitioners have a plain, speedy, and adequate remedy in the ordinary course of law; but no authorities are cited by counsel that go so far as to hold that an appellate court will refuse tq grant relief by prohibition simply because to do so would necessitate the passing upon a constitutional question.

In the case of Walcott v. Wells, 21 Nev. 51, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478, which was a proceeding in prohibition, it is manifest from the majority opinion of the court that a constitutional question would have been passed upon if necessary to a determination of the case, while the dissenting opinion of Belknap, J., was predicated upon his view of the unconstitutionality of the act therein brought in question.

The ease of Ex parte Roundtree, 51 Ala. 42, referred to in the Walcott v. Wells Case, supra, was a proceeding wherein a writ of prohibition was issued to the judge of the fourth judicial circuit of Alabama to prohibit him from proceeding in a case in the law and equity court of Morgan County; the issuance of the writ being based upon the unconstitutionality of the act creating the court.

Among other eases in which the constitutionality of statutes have been passed upon in proceedings in prohibition may be cited the following: Levy v. Superior Court, 105 Cal. 600, 38 Pac. 965, 29 L. R. A. 811; Connecticut River R. Co. v. Franklin Co., 127 Mass. 50, 34 Am. Rep. 338; McInerney v. Denver, 17 Colo. 302, 29 Pac. 516; Sweet v. Hulbert, 51 Barb. (N.Y.) 312.

In tbe case of Walcott v. Wells, supra, this court said: "The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings; by appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts and circumstances of each particular case. Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice, and securing order and regularity in judicial proceedings in cases where, none of the ordinary remedies provided by law are applicable. The writ should not be granted, except in cases of usurpation or abuse of power, and not then, unless the other remedies provided by law are inadequate to afford full relief. If the inferior court has jurisdiction of the subject-matter of the controversy, and only errs in the exercise of its jurisdiction, this will not justify a resort to the extraordinary remedy by prohibition.”

It appears from the petition herein that petitioners applied to the lower court for relief, and that the questions herein presented were urged upon that court upon motions to quash and to dismiss the proceedings. If the proceedings in the lower court would be void because of the unconstitutionality of the sections of the act under which it is instituted, I think it is a case for the proper interference of this court by prohibition, unless it appear that there is another plain, speedy, and adequate remedy. If decision is rendered against petitioners in the proceeding in the lower court, a decree is entered removing them from of6.ce, and judgment for $500 in favor of the complainant may be imposed, as well as costs, as in civil cases. If appeal is taken from such judgment, no matter how meritorious the appeal may be, there is no way by which the judgment, at least so far as the decree of removal is concerned, may be stayed pending the appeal; for the statute particularly provides that an appellant " shall not hold the office during the pending of such appeal.” Petitioners are charged with gross misconduct — acts which are cognizable as crimes and punishable as such; in fact, malfeasance in office itself has all the attributes of crime. These accusations, grave as they are, are not, under the sections quoted, required to be made under the solemnity of an investigation of a grand jury and presented by a body of that character, but may rest upon the accusation of "any complainant.” After summary hearing and á judgment and decree which may impose a great financial hardship, the accused is deprived of holding office and of receiving its emoluments pending the appeal, and the duties of the office are performed and the salary enjoyed by another person appointed as in the act provided. Not only this, but in a ease like that of the district attorney, his appointed successor may become his legal prosecutor.

If the entire proceedings are without authority in law, and void because of the unconstitutionality of the sections of the act providing for this mode of procedure, certainly tbe remedy to be obtained by the slow process of appeal, which could only follow a vain, fruitless, and perhaps expensive, trial, could not be considered an adequate remedy. But more injurious to the defendant than loss of office and money would be the obloquy fastened upon him by such a decree, which an appeal in such a case could not remedy. It is hard to conceive of a greater legal wrong which might be imposed upon a person charged with a grave and serious offense than to compel him to undergo trial by a court or under a procedure wholly void in law. Even if guilty, his conviction would not be a bar to further trial before a competent court and under a lawful proceeding. If innocent, he would be subject to possible conviction, against which he never could obtain adequate relief; for if the lower court had no jurisdiction to consider the merits of the case, the appellate court would not, and all that could properly be accomplished by an appeal in such a case would be a dismissal of the cause, with no opportunity for a new trial, or a further chance to overcome the effect of the wrongful conviction. For cases of this character, no other remedy could be adequate, and reason and justice dictate the restraining of such a trial by writ of prohibition. (Bruner v. Superior Court, 92 Cal. 267, 28 Pac. 341; People v. Spiers, 4 Utah, 395, 10 Pac. 609, 11 Pac. 509.)

Are the sections of the "act relating to elections” under which the proceeding was instituted unconstitutional? It is urged by counsel for petitioners that they are in several particulars, and the following specifications are made wherein the organic act' of the state is declared to be violated: The subject of the sections in question is not mentioned in the title of the act, and has no proper connection with the subject that is mentioned, "elections,” but, upon the contrary, is foreign thereto, in violation of article IV, section 17; that the proceeding, in reality being a prosecution criminal in its nature, can only be prosecuted in the name of and by the authority of the state, and the authorization of a prosecution in the name of an individual is violative of article VI, section 13; that the authorizing of such a proceeding otherwise than upon presentment or indictment of a grand jury is violative of article I, section 8; that the provision requiring a summary proceeding deprives the accused of the right of trial by jury, in violation of article I, section 3.

All of the constitutional questions specified have been very ably presented by counsel, but I shall only discuss the first mentioned, for I deem it clearly decisive of the case, making it unnecessary to pass upon the other interesting questions submitted.

The purpose of section 17 of article IV of the state constitution, which provides that "each law enacted by the legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title,” etc., has been so frequently considered by this court and so well settled that it would accomplish no useful purpose to enter upon a further discussion of a matter so thoroughly covered by former opinions. As was said in the ease of State v. Stone, 24 Nev. 310, 53 Pac. 497, "that a compliance with this provision of the constitution is essential to the validity of every law enacted by the legislature has been so often decided by this court that it is not worth while to cite the eases.” The subject of the act. in question is "elections.” Its purpose and object is the orderly electing of public officials by the qualified voters of the state. The trial of an officer, after he has been so elected, for malfeasance in office, his removal, and the appointment of his successor because of such removal, has no proper connection whatever' with the subject of elections. But counsel for respondent says: "Sections 59 and 60 are no more 'incongruous’ to the title of the act than sections 52 to 57, inclusive, and they have been the settled law of this state for many years.” Sections 52 to 57, inclusive, relate to contests for members of the legislature. A comparison of sections 59 to 62, inclusive, with sections 52 to 57, inclusive, of the act in question, only serves to show more clearly the distinction between what matters have a proper connection with the general subject of the act and what have not. It is manifest that the purpose of an election contest is to determine who has been legally elected in case of controversy. Such contest necessarily relates to the election. Its ultimate object is to determine which of the contesting parties has been duly elected. While it may result in determining that the person holding the office has not been elected thereto and should be ousted therefrom, and that the contestant, or person for whom the contest is instituted, should be invested with the office, such ouster upon the one hand and investiture upon the other is based primarily upon the true result of the election. The removal of an officer for. malfeasance in office has no necessary relationship to the question of his election. Probably in the great majority of cases the malfeasance in office, like the malfeasance charged against petitioners, has not even the remotest relationship to the election of the officer. If the office is an elective one, the election at which the officer became entitled to hold the office is a thing of the past before the malfeasance is committed. An officer appointed to fill a vacancy existing in an elective office may as readily commit a malfeasance in office as he could had he been elected to the office, and so an officer holding an office that is only appointive may be just as liable to commit such an offense. The object of legislation like that attempted to be accomplished by the sections of the "act relating to elections,” herein in question, is to protect the public from corrupt and neglectful officials by removing them from office. (Thurston v. Clark, 107 Cal. 288, 40 Pac. 435; Ponting v. Isaman (Idaho) 62 Pac. 680.) That this purpose has no proper relationship to that of elections, is too clearly manifest to require any extended discussion.

Counsel for respondent argues, however, that by reason of the provisions of section 4 of article VII of the state constitution, the legislature has power to enact legislation for removal of officers guilty of malfeasance or nonfeasance in office in whatever manner it sees fit, and that therefore the sections of the "act relating to elections,” herein in question, having been enacted in pursuance of this provision of the constitution, are valid. The constitutional provision referred to is as follows: "Provision shall be made by law for the removal from office of any civil officer, other than those in this article previously specified, for malfeasance or nonfeasance in the performance of his duties.” While the framers of the constitution recognized the importance of specifying in the organic law of the state a provision requiring the legislature to enact laws for the removal of all officers guilty of malfeasance or nonfeasance in office, other than those whose removal was specified in the constitution to be accomplished by impeachment, it was never intended that such law or laws could be enacted differently from the method prescribed for the enactment of laws generally. Under the constitutional provision mentioned, the legislature is free to provide whatever proceedings for the removal of guilty public officers it deems most advantageous for the public good, so long as it does not in such enactment violate other constitutional provisions. There is nothing in the constitution itself indicating any other purpose, and reason does not dictate why there should be any exception in the case of this character of a law.

While the conclusion reached is that the sections of the act under which the proceedings sought to be prohibited were instituted relate-to a subject foreign to that expressed in the title of the act in which they are found, and that hence they are void, it is proper to note that the effect of this decision is not to hold invalid all provisions of law enacted for the trial of those charged with, and the punishment of those found guilty of, malfeasance or nonfeasance in office. Some of the acts relating to particular county officers contain provisions for the indictment and removal from office of the official who may be found guilty of a misdemeanor in office. (State v. Borowsky, 11 Nev. 119.) The act relating to officers generally contains many provisions definitive of offenses thereunder and providing punishments therefor. The general criminal practice act of this state provides' in its first section that "a crime or public offense is an act or omission forbidden by law, and to which is annexed on conviction: * * * Fourth, Removal from office.” (Comp. Laws, 3986.) Section 63 of the act last mentioned provides that "an accusation in writing against any district, county, or township officer, for wilful or corrupt misconduct in office, may be presented by the grand jury of the county for which the officer accused is elected or appointed.” The sections immediately following (Comp. Laws, 4038-4051, inclusive) provide for the hearing of objections to the sufficiency of the indictment, for a trial by jury, for judgment upon conviction of removal from office, and the right of appeal to the supreme court. Should these various provisions of law to which attention has been directed be deemed inadequate by the legislature to provide a sufficient remedy for the public against unworthy or corrupt officials, additional legislation upon the subject will doubtless be enacted.

The writ will issue as prayed for.