STATE OF NEVADA ON RELATION OF JAMES A. BRENNAN, JAMES G. RYAN, TOM WIESNER, ROBERT N. BROADBENT AND MYRON E. LEAVITT, MEMBERS OF THE BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA, PETITIONER, v. LORETTA BOWMAN, COUNTY CLERK OF CLARK COUNTY, STATE OF NEVADA, AND EX OFFICIO CLERK OF THE BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, STATE OF NEVADA, RESPONDENT.
No. 7097
Supreme Court of Nevada
August 10, 1973
512 P.2d 1321
OPINION
By the Court, THOMPSON, C. J.:
This original proceeding for a writ of mandamus tests the constitutionality of the County Economic Development Revenue Bond Law. Clark County proposes to issue revenue bonds
The ordinance followed a memorandum of agreement between the County and Flintkote. That agreement was made and executed pursuant to the authority of the County Economic Development Revenue Bond Law, as was the ordinance which followed. Capsulized, the agreement provides that Clark County shall hold title to the pollution control facilities to be acquired and constructed at the Flintkote plants, which facilities, Flintkote, in turn, shall lease from the County and remit as lease rental payments an amount sufficient to meet all monetary requirements of the bonds to be issued by the County. Upon full payment of the bonds and other expenses connected therewith, Flintkote may exercise an option to purchase the improvements and facilities from the County for the sum of $1.
It is evident that the method of financing contemplated by the Revenue Bond Law may, in proper circumstances, materially reduce the cost of financing essential industrial improvements since the interest on the bonds issued by the political subdivision may be exempt from taxation as well as from the registration requirements of securities acts.
The Revenue Bond Law is designed to, encourage industry to locate or remain in this State in order to relieve unemployment and to secure and maintain a stable economy.
1. Public funds may not be spent for private purposes. It is asserted that the Revenue Bond Law here in issue somehow violates that doctrine. Of course, if the County were to levy a tax to retire the bonds and if the purpose of the bond issue was private rather than public in nature, the law would be struck down.
The Revenue Bond Law, however, forbids pecuniary liability of the County, or a charge against its general credit or taxing
2. It is asserted that the Revenue Bond Law contravenes the prohibitions of
3.
The title of the Act: “An act relating to public securities and obligations; authorizing counties and cities to issue revenue bonds to finance industrial development projects and to lease
4.
5. The respondent asserts that the Revenue Bond Law unlawfully delegates legislative authority in contravention of
The same is true with respect to the contention that the Law impermissibly allows the counties to delegate authority. McLaughlin v. L.V.H.A., supra.
6. Next, it is contended that
Lands and other property owned by the county are exempt from taxation,
7. The remaining challenges to the Revenue Bond Law have been carefully examined and are without validity.
A peremptory writ of mandamus shall issue directing the respondent to publish Clark County Ordinance No. 396.
MOWBRAY, BATJER, and ZENOFF, JJ., concur.
GUNDERSON, J., concurring:
Assuming that a real controversy exists between the county commissioners and the county clerk—an assumption somewhat difficult to sustain—I can concur in the result of the majority opinion. However, I must note disapproval of this court larding its opinions with unnecessary constitutional dicta, discussing issues because attorneys desire it, and not because the case requires it.
I had misgivings about the excess language in State ex rel. Brennan v. Bowman, 88 Nev. 582, 503 P.2d 454 (1972). In that mandamus proceeding as in this one, it was unnecessary to decide any of the constitutional issues “raised” in the county clerk‘s name. Indeed, we might well have declined to entertain the proceeding at all, on the ground that it presented no actual, present controversy. Cf. Muskrat v. United States, 219 U.S. 346 (1910).1 At most, in that proceeding as in this one, assuming a bona fide controversy between the commissioners and the clerk, we should simply have summarily ordered the clerk to perform her ministerial duty, i.e., in that case, to attest the trust instrument. Cf. State v. Glass, 44 Nev. 234, 192 P. 472 (1920). We have frequently declared we will not decide
Although the opinion issued in the first Brennan v. Bowman case discussed issues not necessary to decide it, purporting to resolve constitutional challenges to Stats. Nev. 1971, ch. 502 (NRS 242B), we at least refrained from suggesting blanket approval of that law and of the trust indenture ostensibly drawn pursuant thereto. In the instant case, if this court does not refrain altogether from advisory dicta, I suggest we should confine ourselves, as in the first Brennan v. Bowman matter, to considering whether, under some tendered theory, the state statute in question necessarily contemplates unconstitutional governmental action. Surely, we should not intimate that some county ordinance will hereafter be deemed lawful, either in form or in ultimate application. (Although the majority may not intend such sweeping approval, their opinion might be so understood.)
It will be a very dangerous practice, I think, if county commissioners can impel our advisory review of any ordinance they enact simply by having their county clerk refuse to publish it. This court lacks the time and foresight to assess, in the abstract, the constitutional implications and ramifications of every financial scheme county commissioners throughout the state may be motivated to enter by laws like that before us and that concerned in State ex rel. Brennan v. Bowman, supra. Such an undertaking is both foreign to our office and beyond our capacity. Particularly this is so because a district attorney, when he nominally represents his county clerk by tendering us constitutional arguments against an ordinance, will often be presenting a view he does not want to prevail—perhaps arguing against an ordinance he helped to prepare. If we approve such procedures, how much real advocacy can we expect from counsel?
Candidly, although the district attorney‘s Points and Authorities in this case are responsibly prepared from the standpoint of scholarship, they reflect little desire for victory. I believe a taxpayer or a competitor of The Flintkote Company, truly interested in defeating the plan to buy pollution equipment for Flintkote, might prefer to retain other, truly interested counsel. And, as I now perceive it, the friendly litigation now before us has been concocted to obviate the danger that, at some later date, some interested party with interested counsel might persuade us that his constitutional rights were