173 P. 885 | Nev. | 1918
Lead Opinion
By the Court,
This is an application for a writ of prohibition made on the following state of facts:
Henry J. Jones and James G. Gregory, since the 1st day of January, 1916, are the duly qualified, commissioned,
*527 " In the District Court of the Fourth Judicial District of the State of Nevada, in and for the County of Elko. The State of Nevada, Plaintiff, on Relation of John H. Cazier, Complainant, v. Henry J. Jones, Defendant.
" Complaint.
"On behalf of the State of Nevada and pursuant to her laws, and for the benefit of Elko County, Nevada, hereinafter designated as the county, John H. Cazier, herein designated as complainant, for cause of removal from the office of county commissioner of Elko County, State of Nevada, of Henry J. Jones, incumbent of that office, hereinafter designated as the defendant, on oath complains and alleges: That complainant is a citizen of the United States, over the age of 21 years, is a resident and taxpayer of Elko County, in the State of Nevada, is foreman of the last called grand jury of Elko County, impaneled on the 18th day of September, 1917, in the above-entitled court, which grand jury has not yet been discharged; and this complaint is made at the request of the members of this grand jury; that defendant is, and ever since the first Monday in January, 1915, has been, a duly elected, qualified, and acting county commissioner and. as such county commissioner is, and ever since the first Monday in January, 1915, has been, a member of the board of county highway commissioners of Elko County, Nevada; that defendant is, and ever since the first Monday in January, 1917, has been, the chairman of the board of county highway commissioners of Elko County, Nevada; * * * that as such county commissioners and as such member of the board of county highway commissioners, the defendant has been guilty of malpractice and malfeasance in office and has refused and neglected to perform the official duties pertaining to his office, as prescribed by law, at various times, including the instances hereinafter stated. * * *”
Each of the defendants, by their attorney, moved to quash the citations issued on these complaints, upon the grounds that the citations were issued under section 2851,
On the 10th day of May, 1918, the defendants made a joint application to this court for an order restraining the district court of the Fourth judicial district of the State of Nevada, in and for the county of Elko, and E. J. L. Taber, the judge thereof, or any judge, from proceeding to try the said complaints, or take any steps in said causes under section 2851, et seq., upon the grounds that the proceedings are in fact written accusations duly made, presented, and filed by a grand jury of Elko County, and that unless restrained said court will proceed in a summary manner to hear the complaints without a jury and contrary to the proceedings prescribed by section 6894, et seq. In view of the positive averments contained in the petition, this court, for the purpose of inquiring into the jurisdiction of the said district court thus challenged, issued a show-cause order directed to the respondent, and staying the proceedings in said county until the further order of this court.
After a hearing of the issue joined upon the application for the writ, and the answer and traverse of the respondent, and upon due consideration of the testimony of John H. Cazier, the complainant in each of said actions, we are satisfied that the proceedings instituted against the defendants, and each of them, are commenced under section 2851, et seq., and not under section 6894, et seq., and that
The fact that it is made to appear from the complaints and the testimony that John H. Cazier made the complaints at the request of the grand jury of Elko County, and on behalf of the State of Nevada and for the benefit of Elko County, does not have the effect to change the procedure to that of formal accusations presented by the grand jury of Elko County against the defendants. We regard the language as being surplusage. It adds nothing in substance or form. The complaints are the complaints of John H. Cazier, duly verified by his oath, and duly presented to the said district court of Elko County, which is all that is required to set in motion the procedure prescribed by the statute. (Rev. Laws, 2851-2854.) Whether the state may be a complainant under said sections, or that a complainant is. authorized to use its name in bringing and carrying on a proceeding under said sections, it is not necessary to determiné.
The application for the writ is denied.
It is so ordered.
Concurrence Opinion
concurring:
I concur in the order.
In the case of Gay v. District Court, 41 Nev. 330, 171 Pac. 156, I took occasion to express my views on phases of the question here presented.
In this proceeding, petitioner contends that because the grand jury, as an inquisitorial body, investigated the acts and conduct of the board of county commissioners and recommended that proceedings be instituted against petitioners under the provisions of sections 2851-2854, Revised Laws, hence the complaint here in question is an accusation by that body. Regardless of whatever investigation the grand j ury may have entertained, regardless
It is contended that because the complaint is entitled “The State of Nevada, Plaintiff, on Relation of John H. Cazier, Complainant,” therefore it is a complaint filed by the state and is a criminal proceeding. In this respect our attention is directed to the provisions of our constitution (sec. 13, art. 6) to the effect that all process shall be in the name of the state and all proceedings shall be conducted in the name and by the authority of the state. In my concurring expression in the case of Gay v. District Court, supra, I took the position which I here reassert. Proceedings under sections 2851-2854, Revised Laws, are not criminal in nature. These code provisions permit and authorize a special proceeding for the sole purpose of removal from office. A determination by the district court that the charges in the complaint were well founded would entail no effect save removal. Such would not constitute a bar to' criminal prosecution. Section 13, article 6, of the constitution is specific as to the authority under which criminal actions may be instituted. Such are to be conducted in the name of the state only, and are to be instituted by the authority of the state only. But does this provision preclude the state from acting on relation of one of its citizens in a special proceeding for a special purpose other than criminal proceeding where a matter of public concern is raised under statutory authority? The commonwealth, and not the individual, is the interested party, and such proceedings are created not as an instrument for individual concern but as a public plan of expediency. As in proceedings for the prosecution of crime the individual must set the machinery of the law in motion,
In the matter at bar we have a complaint in writing, verified by the oath of a complainant, not for the purpose of instituting a prosecution, for removal from office is in no sense a prosecution for crime, but to institute a special inquiry provided for by statute to be conducted by a designated authority. One of two results can follow — not conviction of crime, not deprivation of property — removal from office, or dismissal of the proceedings.
Much of the argument of counsel would be most convincing were we dealing with a law that contemplated criminal proceedings, or a complaint instituting a criminal prosecution. The recent case of Ex Parte Clark, 24 Cal. App. 389, 141 Pac. 831, cited by counsel for petitioners, receives my unqualified concurrence. In Kilburn et al. v. Law, 111 Cal. 237, 43 Pac. 615, cited in Ex Parte Clark, supra, the court held that the proceedings to remove the bank examiners were intended by the legislature to be in the nature of a criminal prosecution. There the court laid as the major premise of the decision that the statute providing for the removal from office of the bank examiners was a proceeding for the punishment of an offense in its nature criminal. This conclusive assertion, which I deem wholly inapplicable to our procedure for removal from office (Rev. Laws, 2851-2854), furnishes the turning-point for the whole question as it is dealt with by the California courts. If by our removal statute here in question criminal proceedings were instituted, or if a judgment of conviction of crime were entailed, then the conclusions of the California courts in the many cases referred to would be most applicable.
Petitioners’ counsel dwells on the action of the grand jury as such was disclosed by the testimony taken here. In this respect he contends that it was the duty of that
The statute which gives rise to this proceeding is one for the removal of certain officers. It is a part of our law, made so by legislative will. The whole procedure is denominated as being summary; hence it precludes the right to jury trial. Into the hands of the district judge this statute lays one of the most- sacred duties, that of removing an individual from the enjoyment of public position of trust and honor. The law, in my judgment, contains nothing which recommends itself to the spirit of democracy. It • partakes of none of the progressive inspiration which gave rise to the historic scene at Runnymede. It is an extreme and extraordinary-measure, intended only for extreme and extraordinary occasions. It is fraught with seriousness and a demand for extreme caution both from the standpoint of him who prefers the