5 Nev. 244 | Nev. | 1869
By the Court,
Plaintiff, who was the only qualified and acting Recorder for the City of Virginia, performed certain duties as a Committing Magistrate, imposed upon him by an Act of the Legislature, entitled “ An Act concerning the Courts of Justice of this State and Judicial Officers,” (Stats. 1864-5, 116) and now brings this action to recover the sum of five hundred and eighty dollars, claimed to be due for the services so imposed upon and performed by him. The law imposing,these duties fixes no compensation for their performance, but the same fees are claimed by plaintiff that are allowed to Committing Magistrates for the like services.
Whilst not disputing the correctness of the charges thus made, the defendant contends that the law authorizing the plaintiff to perform the services is unconstitutional and void, and consequently that no compensation can be received.
The law in question, after conferring jurisdiction upon Recorders to hear and determine certain cases, declares in section thirty-eight, that: “ The Recorder shall possess the powers and exercise the duties of Committing Magistrate in the criminal eases in which the Courts held by them have no jurisdiction,'by this Act; and as such Magistrates, they may examine, commit, or discharge all persons brought before them, as the justice and law of the case may require.” The services for which judgment is here sought were performed under this section. There can be no question that the power thus conferred upon the Recorder is as much and completely judicial in its character as the full hearing and determination of any cause of
These are the only sections of the Constitution bearing upon this question, and it will be observed that whilst the Legislature is authorized by the first section to establish Courts other than those established by the Constitution itself, still the jurisdiction to be conferred upon them is emphatically limited to municipal affairs. “ For municipal purposes only” clearly restricts the jurisdiction to be exercised by them, when created, to such matters as relate to the affairs of the incorporated cities or towns where alone they are authorized to be established.
Municipal purposes as here used can have no other signification. But section thirty-eight of the law referred to unmistakably gives to the several Recorders of the State all the authority of a Committing Magistrate; the jurisdiction and right to examine and hold to answer all offenders upon charges for the violation of the general criminal laws of the State — a jurisdiction entirely beyond that which the Constitution authorizes the Legislature to confer upon them.
Such being the case, it follows that he can derive no advantage froip such law, for an unconstitutional law is no law at all. It is, so far as he is concerned, as if it had never been adopted by the Legislature.
The plaintiff then had no legal authority to perform the services for which this action is brought, and without it, his services must be held to be simply gratuitous, for which no compensation can be recovered ; for the right to the salary or compensation of an office depends upon the title to such office, and cannot be recovered by one who is simply an officer de facto. (Stratton v. Oulton, 28 Cal. 44.)
That the constitutionality of the Act under which the services were performed cannot be inquired into in a proceeding of this kind, because indirectly trying the plaintiff’s right to the office held by him, is a proposition utterly untenable. He is a party to this proceeding, claiming the right to recover fees for services rendered under a certain law, which he invokes as the authority under which they were performed. If there were no such law, unquestionably the defendant could rely upon that fact as a defense. Such is virtually the defense now relied on; for although it is admitted the Legislature passed an Act authorizing the performance of the services, still it is shown that such Act is null and void, which is tantamount to the entire absence of law or action on the part of the Legislature. A law which is in conflict with the fundamental law of the State is no4aw, and therefore that it is so in conflict is as available in defense as that no law whatever had been adopted. The nullity of the law is a complete defense to the recovery of the fees, and the only manner in which it can be interposed is that assumed in this case. To hold that the constitutionality of the Act cannot be inquired into would be to deny the right of defense to
Counsel is doubtless correct in the position that the plaintiff.is an officer de facto,, and that as such his acts are valid. They are valid, however, only as to third persons and the public. This is a rule founded upon considerations of public interest. (Mallett v. Uncle Sam S. M. Co., 1 Nev. 188.) But the public interest does not require that the officer acting without authority should reap benefit from his position. The considerations which support and validate the acts of an officer de facto do not go so far as to require the payment of fees to such officer for services so performed. No Court has ever gone farther in this direction than to hold that acts performed by public officers are valid as to. the public ; they have not held that they themselves may in a direct proceeding of this kind recover any benefits from them.
The People v. Morris, (3 Denio, 382) referred to is not a parallel case, for the Legislature made provision for the payment of Lynch after the unauthorized services were performed, which, the Court held, it had the right to do. Hence, the question of the legality or illegality of Lynch’s services could not regularly be raised in that case. His payment was provided for, notwithstanding the services were unauthorized when performed. Such is not the case here. The plaintiff is suing to recover the services rendered under a void law, with no subsequent Act of the Legislature authorizing his payment for services so rendered; and thus he is left with nothing but an unconstitutional law upon which to rest his claim for the money sought to be recovered.
The judgment, which was in his favor, must be reversed; and it is so ordered.
