*1 REA, Jr., HENRIKSON, FRANCIS C. KEITH WIL DAVIS, NEIL, LIAM F. R. JAMES ROBERT Appel CAVAKIS, McGINNIS, and LESLIE MAYOR, MANAGER, v. THE lants, CITY Governing Body COUNCIL, CITY RENO, NEVADA, BAKER, CITY OF and BUD BROWN, CARR, KENNETH GEORGE JOHN MARSHALL, MASTROIANNI, JOSEPH DICK Constituting DIMOND, COWEN, and CHARLES Governing Respond Body, Members of Said ents. No. 4382
December
OPINION Court, McNamee, By the C. J.: question necessary appeal The sole for decision in this b, 268.010, paragraph 1, is whether subsection NRS 19, 3, Art. violates sec. the Nevada Constitution. Art. provides sec. Constitution Nevada part and for the initiative reads as follows: “The power reserve themselves the * * * polls, and to or at enact same * * * independent legislature. The initiative powers provided and referendum this article for are qualified county further reserved to the electors of each local, special municipality municipal and to all and legislation every respective character in or for said legislature may municipalities. provide counties exercising and law for manner the initiative powers legis- county municipal referendum as to and lation, require but shall not than 10 of more per (10%) cent electors to order referendum, per (15%) pro- nor than cent more pose any municipal measure initiative.”
Although provisions are of said sec. 3 self- executing matters, they with reference to state are not self-executing municipal county with reference to and Koontz, matters. Beebe v. 72 Nev. b,
Paragraph 268.010, attempt by is an given to exercise the constitutional byit exercising said sec. 3 to for the manner of respect the initiative and referendum county municipal legislation. paragraph Said b reads as follows: *3 filing
“Upon petition bearing sig- the of verified the registered percent natures of not less than 60 of the city town, by voters of the or as certified the clerk of county city located, praying the wherein the or town is adoption any fully for the of amendment or amendments petition, set forth in such and exhibited to each of such signers prior signature being to the affixed thereto.
signatures appended paper, not all need be to one signer signature place each shall add to his his of resi- signers petition dence. One of the of each such shall that the swear statements therein made are true to the knowledge best of his and belief.
“Upon bearing any petition the of the required signatures, setting duly number of verified proposed, out therein the amendment or amendments governing body adopt city the shall of such or town such amendment or resolution without amendments proceeding.” further paragraph b,
Pursuant to said a verified con- taining required signatures in excess of 60 praying adoption for the of certain amendments to the City city charter of the filed Reno was with the clerk City respondents of Reno. Thereafter refused to adopt the said amendments. Action was in commenced compel the to for a of mandamus court below writ Upon court’s
adoption the lower amendments. said appeal for mandamus dismissal of the enacting opinion, In taken. our granted beyond to 268.010 went the said for constitution, it failed to therein because proposed to charter amendments the submission polls. decision of the voters at the power provided The initiative the constitution electors of each as aforesaid is reserved to power expressly “the municipality. defined as That is * * * reject power propose to enact laws and to or legislature.” polls, independent It the same at the power to reserved is clear us from definition quoted not constitution does contem- as above words, plate the In other initiative without a ballot. given municipality power initiative to the electors of legislation respect municipal no from with to is different given people power as a the initiative whole respect power state matters. This consists of power thereafter must be enacted which distinguished rejected polls power from a at which would effect a act election. without only constitutional This conclusion results not from our provisions but also from the definitions of “initiative” reputable publications. Dictionary Law found Black’s pro- defines “initiative” as “the pose bills and laws and to enact or them at the *4 polls, independent assembly.” of the The Statutes, C.J.S., same definition in 82 sec. 115. is found Revision, Dictionary, In Third 1 Bouvier’s Law Rawle’s right p. specified 1569 “initiative” a number “is the of legis- proposing to in to of the electorate unite laws the which, body, lative after due consideration must submit approval the same to vote of the their the for disapproval.” Frank, 56,
Appellants 56 contend that Caton v. Nev. controlling 521, is of the issues here submitted. paragraph In that a said b case statute similar to received the attention of this court in a a case where sought compel governing of writ mandamus was body City upon petition of the of Reno to act a to amend city charter. It was asserted that 2 of subdivision 1257, paragraph b, section (now NCL 1929 subsection 1, 268.010) was unconstitutional in that it was in conflict with section 8 of article 8 of the Constitution of permitting State of Nevada1 in an amendment of a city by signed only charter by of a a percentage qualified voters,2 of because said section 8 contemplates article 8 city the amendment of a char- only by ter purpose an election held for that at which all of permitted express the electors are their choice by agree vote. This court did not with said contention legislature may held “that under the granted by 8, provide the said any section 8 of article reasonable and whereby uniform method city may, voters of by majority, express a a desire to charter, amend proper petition signed sixty qualified voters, provided as is said 1257, subdivision 2 1929, of said section NCL which hold, we provision is not in conflict with said constitution.” writ was denied however because petitioners bring court concluded that had failed to themselves within terms of said subdivision 2. Although argued by respondents3 it was that said sub- 19, 3, division was violation of Art. Constitution, concluding paragraph
Nevada opinion unnecessary reveals felt “Municipal corporations general 1Art. see. 8: under formed organization laws. The and towns shall for the of cities by general shall restrict their of taxa tion, assessment, borrowing money, contracting loaning debts and credit, except procuring supplies water; provided, their hoio general c'.ver, legislature may, by laws, in the manner and permit provided, extent therein and authorize the electors of any city frame, adopt or town to and amend a charter for its own any existing government, city or to amend charter of such or town.” 2Subdivision of section NCL contains the words “qualified paragraph voters” while said b contains words “registered voters.” argument respondents appears only report 3This in the official Frank Caton v. found 56 Nev.
488 point. that the Catón therefore conclude decide We controlling here submitted. case not issues is that view of court In case the said the Catón justify to insufficient fact that unneces- prayed it be for would of the writ issuance rea- points For same sary other raised. decide the to unnecessary to decide for the court whether it was son 8, Art. under sec. unconstitutional the statute was 8, 8, opinion However, in our is not inconsis- sec. Art. 3, were, 19, 19, Art. Even if it sec. sec. 3. tent Art. controlling. adoption v. is Farrar later date awith Trustees, 572, 688; 243 Press- 150 Tex. S.W.2d Board 1011; Commission, 22, Ariz. ley v. Industrial Governor, A.2d 165. Opinion 78 R.I. to the failing adopt properly in respondents to acted petition, legislation in the contained resolution con- that such action would have concluded because we procedure of Art. of our violative stitute a court, therefore, properly dis- constitution. The lower of mandamus. for writ missed Affirmed. J.,
Pike, concurs. dissenting:
Badt, J.,
I dissent. my opinion presumption
It
that
is
constitu-
tionality
many
has not been overcome. Of the
cases
approving
presumption,
no case
this state seems
Pegg,
expressed
strongly
than
have
more
Hess v.
(5-6-7
721).
It Art. seems to me that sec. 8 of 8 of the constitu Frank, tion in v. 56 considered Caton Nev.
521, 522, just clearly contemplates as an election as does sec. 3 of Art. 19. At least it connoted that much to this court, for it that the initia referred to the contention tive there involved limited the constitu was a “vote” “the electors” “cast at an election” tion to legislature provide any and held that the could reason whereby qualified uniform “voters” able and method expressed their desire. fact, then, escape
I see from the that this court no required Frank that 8 of Art. 8 held in Caton v. sec. election; electors, voters, or that in such election language being so, there used is would vote. This just Art. in effective as that in sec. 3 of 19 used to themselves the which the reserved polls. the same at laws and to enact legislature provides: “The 3 of Art. 19 then Section exercising may provide by for the manner law county powers as to and and referendum initiative * * pursuant legislation, It municipal provision that the enacted that constitutional them- 268.010, the electors could under which percent a 60 initia- charter amend their selves v. Frank to have in Catón petition. This was held tive “whereby method and uniform provided a reasonable city may, by majority, express a voters of and which was held to charter” to amend such desire Art. 8 of not in conflict with be overruling that I
I no valid reason decision. see holding agree machinery of a 60 490
percent petition provided and uniform a reasonable express percent 60 of the voters method under which Koontz, in Beebe v. 72 Nev. their will. saidWe “* * * action in case the P.2d 489: the Catón drastic, sought by in that was far more electors, signed petition itself, actually species effected was a of election election, petition in amendment without an while proceedings. simply the instant case initiated election Quimby recognized ex rel. such a distinction State We Reno, City P.2d If that v. 71 Nev. 1071.” Koontz, v. I would declare here was dictum Beebe approval pronounce- the direct to be the law—our *7 legislature. ment of the just mentioned, involving Quimby annexa-
In the case by property city, tion of to the referred to action we council, city the action of does the “where board the simply proceedings initiate in itself not election species is a of election which effectuates the annexa- from other tion.” Reference was made to decisions jurisdictions expressions. which used similar that, majority appears of the court to feel although in Frank court held that sec. 8 Caton v. this by not violated a of Art. 8 of the constitution was city permitting charter statute the amendment of the filing signed “by petition by only percentage the of a voters,” qualified the there felt that it of the holding point unnecessary and that to decide the the controlling not in the instant case. is therefore With agree respect, I this conclusion. all am unable original proceeding an in manda Catón v. Frank was compel mayor city the council mus in this court to signed proceed upon petition a number of Reno to qualified Reno to amend the charter. of the voters of petition presented that first This court recited constitutionality question to the of the statute as upon per requiring amendment of a 60 noted, disposed petition. have above cent As we deciding question that the statute did not vio pro the constitution. It then 8 of Art. 8 of late sec. namely, point, whether the ceeded to second signed had been electors. It decided that it had not been so executed and denied the writ. opinion Then at the end of the the court stated, opinion: noted in the main “There are other questions by respondents’ demurrer, but, feel, raised we in view of reached, the conclusion namely, here that justify is insufficient to the issuance of the prayed for, writ as unnecessary it would be to decide points did, however, other definitely pass raised.” It upon question. the constitutional compelled
I am majority places conclude that emphasis too much on those words contained in sec. 3 of Art. people 19 under which the reserve to themselves * * * “to and to enact or polls, the same at independent legis- * * lature, my opinion The words italicized are in merely descriptive independent choice, of the exercise of emphasis placed and the upon should be the reservation right of initiative and referendum to the independent and to legislature. reserve it to them provided When the legisla- constitution itself ture should exercising the manner of the initia- tive and referendum and the in its wisdom felt it would be a waste of time and expense require polls election at when a majority already expressed voters had their *8 writing, view in I cannot conclude that “clear, palpable and direct conflict with the written constitution,” justifying the decision of this court that necessary it is “to undo act.” At [the] least complete I cannot so conclude in the face of absence of authority support I to' such action. would reverse the judgment of the district court.
Badt, J.