Nos. 2396, 2397, 2401 | Nev. | Jul 15, 1919
Lead Opinion
By the Court,
These cases were argued and submitted as a single case. For convenience we will refer to it as the case of Pershing County against Humboldt County, since it appears that the latter declines to recognize Pershing County as being a legally created and established county of the state.
On March 18, 1919, an act of the legislature was approved entitled “An act creating and organizing the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.” Stats. 1919, p. 75. On the same day, to wit, March 18, 1919, the governor approved an act entitled “An act to amend sections 16 and 19 of an act entitled ‘An act creating and organizing' the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.’” Stats. 1919, p. 82.
On the change from the territorial to a state government the several counties of the Territory of Nevada were recognized as legal subdivisions of the state. Since that time the legislature has, by special legislative enactments, changed the boundaries of some, consolidated and divided others, until there now exists seventeen organized counties in the state, including the alleged county of Pershing.
Subject in a state only to constitutional limitation, a county is the merest creature of the legislature. It is recognized by the fundamental law of this state as a body corporate. Const. Nev. art. 17, sec. 1.
Sec. 3, art. 19, of the constitution provides, inter alia:
“The initiative and referendum powers in this article provided for are further reserved to the qualified electors of each county and municipality as to all local, special and municipal legislation of every character in or for said respective counties or municipalities.”
We concede, or it must be conceded, that an act creating a new county out of territory of an established county relates to and necessarily affects the latter, but we are unable to bring ourselves to the conclusion that such legislation is a local law “in or for” the county out of which the new county is created. But on the contrary, if it be local legislation, as the term is used in section 3, article 19, of the constitution, it is legislation for the new county of Pershing, and not for the old county of Humboldt.
Counties are of purely a political character, constituting the machinery and essential agency by which free governments are upheld, and through which, for the most part, their powers are exercised. Their functions are purely of a public nature. 11 Cyc. 351.
Whatever may be the literal import of the initiative and referendum amendment to the constitution, it must be construed with others of the organic law. It cannot be construed that the legislature and the people intended
In view of the essential character and nature of a county as it relates to and is connected with the sovereignty of the state, we are of the opinion that the power which the legislature possesses to divide counties and apportion their common burdens is not abridged, limited, restricted or affected by the initiative and referendum, and the law in question is not thereby suspended.
By the very terms of the title of the act the disputed provisions are incident to the complete organization of Pershing County and are germane to the main object of the act.
Without regard to the constitutionality of the separate and distinct provisions of the act, we are clearly of the opinion that the act as a whole is constitutional. It is therefore ordered that the alternative writ of prohibition heretofore issued be and is hereby made permanent and peremptory; and it is further ordered that the writ of mandate, as demanded, do issue; and the injunctive order appealed from is affirmed.
Rehearing
On Petition for Rehearing
By the Court,
1. Rehearings are not granted as a matter of right (Twaddle v. Winters, 29 Nev. 108, 85 Pac. 280, 89 Pac.
In this case we are satisfied that the opinion answers satisfactorily all the points raised in opposition to its conclusions, but, as some question of doubt is raised as to the extent to which the decision goes, we take the liberty of summarizing for the benefit of counsel what is actually decided:
First — A county is a political subdivision of a state, through which, for the most part, its sovereign powers are exercised.
Second — The law creating Pershing County out of a part of Humboldt County is, as a whole, constitutional.
Third — That the said law is not abridged, limited, or restricted by the initiative or referendum clause of our constitution, and that the taking eifect of the said law is not thereby suspended.
Fourth — That the completed law is not local, special, and municipal legislation within the meaning of the referendum clause of the constitution that reserves to the qualified electors of a specified county the power to approve or reject at the polls legislation of every character in or for such specified county.
In arriving at these conclusions we applied long-established principles:
From the application of these principles and rules of construction we concluded that the statute creating Pershing County out of the territory of Humboldt County was, as a whole, constitutional, and further held that such act was not of the class of legislation referred to and embraced by the referendum; hence the asserted right of the people of Humboldt County to veto the law creating Pershing County by their ballots became a. political question, and this court was without authority to adjudge matters of this kind between the two counties.
Counsel insist that the broad and comprehensive language of the referendum reserves to the people of a county the right to determine whether the act creating a new out of the old should become operative. The principal argument so earnestly advanced in support of this proposition is- that it is a “local law” within the meaning and contemplation of the provision of the referendum as applied to counties, and they further insist that the opinion so declared. We do not recede from the declaration that the law is “local” legislation, but not for Humboldt County within the meaning of the word “local” as used in the referendum. The act is “local” legislation, for the reason that a general law could not be made applicable to such cases. Evans v. Job, 8 Nev. 322" court="Nev." date_filed="1873-04-15" href="https://app.midpage.ai/document/evans-v-job-6668416?utm_source=webapp" opinion_id="6668416">8 Nev. 322.
“It is not denied that the legislature has power to erect*91 a coiinty, that isr to define its territorial limits and boundaries by special act, and thereby to subdivide one or more old counties, because it is said such action is clearly a part of proper legislative power not prohibited, and no general law could in such case be made applicable.” State v. Irwin, 5 Nev. 111" court="Nev." date_filed="1869-04-15" href="https://app.midpage.ai/document/state-ex-rel-clarke-v-irwin-6668081?utm_source=webapp" opinion_id="6668081">5 Nev. 111.
Neither do we recede from the declaration made in the opinion (though not material to the issue) that, if any one be entitled to vote on the proposition whether the completed act should become operative, it should be the people of Pershing County. On them especially rest the privileges, responsibilities, and burdens of the new county. People v. Kennedy, 207 N.Y. 533" court="NY" date_filed="1913-03-14" href="https://app.midpage.ai/document/people-ex-rel-unger-v--kennedy-3592016?utm_source=webapp" opinion_id="3592016">207 N. Y. 533, 101 N. E. 442, Ann. Cas. 1914c, 616. But counsel argue that this reasoning is illogical, because Pershing County at the time the officers of Humboldt County called an election had not been created. If this be so, then why do counsel importune us to protest the political rights of the people of Humboldt County to determine whether the law that created Pershing County should become operative? But they assert that, conceding it to be a completed law,, it is a law for Humboldt County. If this be true, we apprehend that the people of Pershing County would be here protesting with equal earnestness and vigor against a judicial recognition of such a law.
The word “for” defines and limits the character of such legislation, whether it emanates from within or without the county. Clearly it must in either case be legislation “for” the county; that is, “with respect to,” with “regard to,” legislation for its government and exercise. This limitation of power furnishes a strong argument of its existence, and involves necessarily the exclusion of things not expressed. The people themselves having limited their power to affirm or reject legislation “for” a county, it is impossible for us to extend its meaning to include legislation of a strictly political nature and character that concerns the status of the county as a political subdivision of the state, through which the state, for the most part, exercises its governmental powers, legislation of an entirely different character from that of “local” legislation as used in the referendum. It is fair to presume that the people adopted this particular measure, in its limited form, with full knowledge of the inherent power of the state over its territory and the recognized mode and manner followed and pursued by the state with reference to the division and creation of counties from the date of its
In the absence • of clear, explicit, and unmistakable language to show that the people reserved to themselves the power to divide counties and establish new ones, together with the power to veto such laws when duly enacted by the legislature, we decline to announce a principle that would tend to undermine what we consider to be a power inherent in a state.
In the case of Gibson v. Mason, 5 Nev. 283" court="Nev." date_filed="1869-10-15" href="https://app.midpage.ai/document/gibson-v-mason-6668120?utm_source=webapp" opinion_id="6668120">5 Nev. 283, there is an exhaustive and able discussion of the sovereignty of the state as against the sovereignty of the people. It is therein announced that an act of the legislature made dependent upon the people’s votes or approval is utterly void. This doctrine has been superseded by the referendum clause of the constitution. It is now held, and the law is so familiar as to render any review unnecessary, that the legislature may delegate to municipalities and restricted localities the right to determine whether they will act under or take advantage of statutes pertaining to such subjects as municipal government and excise. People v. Kennedy, supra.
As stated in the opinion, we are not concerned with the wisdom or policy of the legislative act in question. The legislature had the power to give to electors of the entire county of Humboldt the right of referendum. And the people themselves, when they adopted the initiative and referendum, had they so desired, could have reserved to themselves the option to adopt or reject legislation of the character here in question. But these are matters for the legislature and the people to deal with, and not courts.
The petition for rehearing is denied.
Concurrence Opinion
concurring:
I concur in the opinion of Mr. Justice Sanders.
Two purposes were sought to be accomplished by the act attacked in these proceedings. The first was to create Pershing County, and the second to provide the necessary organization for the government thereof. Had an independent act been passed creating Pershing County, which might have been done, as was held in Leake v. Blasdel, 6 Nev. 40" court="Nev." date_filed="1870-04-15" href="https://app.midpage.ai/document/state-ex-rel-leake-v-blasdel-6668151?utm_source=webapp" opinion_id="6668151">6 Nev. 40, and leaving to a separate and distinct bill the providing for its government, I am unable to see how it could be contended that such an act creating Pershing County would be such “local, special and municipal legislation * * * in and for” Humboldt County as was contemplated by the constitutional amendment in question. In fact, the very argument made by counsel for respondent is inconsistent with any other conclusion. They insist that the act creating Pershing County is within itself a dismemberment of Humboldt County. How, then, can it be said on the other hand that it is an act “in and for” Humboldt County? Their argument is not only inconsistent with the conclusions they seek to have us arrive at, but shows conclusively the weakness of their position. There is a great difference between the creation of a new county and legislating for one already in existence, and such is the chief distinction between the case before us and the one contended for by counsel for Humboldt County. This being true, the mere fact that the act in question contains provisions creating Pershing County, and also provisions incident to the creation of that county and providing for the government thereof, does not change the situation in the least.