172 P. 367 | Nev. | 1918
Lead Opinion
By the Court,
A prosecution was commenced in the police court of the city of Reno against the appellant, Dixon, by a complaint under oath. In that complaint the appellant was charged with having unlawfully practiced the profession of law at and within the city of Reno without having first obtained and paid for a license from the city clerk of the city of Reno. The prosecution was instituted under a city ordinance. Appellant was arraigned in the police court upon the complaint. On arraignment, appellant filed a motion to set aside the complaint, alleging, among other things, that the ordinance under which the license tax was imposed was invalid. Upon the filing of the motion by the appellant, the police court made an order transferring the cause to the Second judicial district court in and for the county of Washoe, upon the
The prosecution in this case was conducted against the defendant for a violation of a municipal ordinance. Viewing the matter as of the first instance, the municipal court had, without doubt, j urisdiction of the offense charged against petitioner, and that court might with propriety have tried and determined the matter. ' It was on the motion of appellant, in which motion he raised the question of the legality of an ordinance imposing a tax, that the matter was transferred to the district court. In the case of Ex Parte Dixon, supra, following the doctrine of the case of State v. Rising, 10 Nev. 97, we held that it was in obedience to the statute that the judge of the municipal court was required to transfer the proceedings to the district court.
By statutory declaration the legislature of this state has declared what is to be regarded as a misdemeanor and what is to be regarded as a felony. Section 6266, Rev. Laws, provides:
“A crime is an act or omission forbidden by law and punishable upon conviction by death, imprisonment, fine, or other penal discipline. * * * Every crime punishable by a fine of not more than five hundred dollars, or by imprisonment in a county jail for not more than six months, is a misdemeanor.”
The offense charged against the appellant was not raised to the dignity of a felony by being transferred to the district court. It was in the first instance, and
“No penalty shall exceed the sum of $500 or six months imprisonment, or both such fine and imprisonment.” Stats. 1915, p. 273; Stats. 1917, p. 119.
The right of appeal to this court in such matters has been definitely and positively negatived by the case of Town of Gold Hill v. Brisacher, 14 Nev. 52, and as said there by Mr. Chief Justice Beatty, after referring to the case of State v. Rising, supra, so we say here:
“This is clearly a criminal case, and cannot therefore be one of the ‘cases at law’ in which this court has appellate jurisdiction; and, since the offense charged does not amount to a felony, we have no jurisdiction ofv it as a criminal case. Const, art. 6, sec. 4.”'
The appeal is dismissed.
It is so ordered.
Rehearing
On Rehearing
By the Court,
A rehearing of this case was granted on petition of appellant. In our former opinion we held that the offense charged against petitioner was a misdemeanor, and, being such, did not come within the appellate, jurisdiction of this court. It was our judgment then .that the former decision of' this court in the case of Town of Gold Hill v. Brisacher, 14 Nev. 52, was controlling. The petition for rehearing and an argument of counsel on the rehearing sought to distinguish that case from the matter at bar.
We are not in accord with the theory of differentiation. To differentiate would be to set aside the whole theory of the law as laid down by Mr. Chief Justice Beatty in the Brisacher case. It is our judgment that
Our former opinion will prevail, and the order therein made is hereby reaffirmed.
It is so ordered.
