STATE OF NEVADA, ON RELATION OF HARRY M. WATSON, PETITIONER, v. PETER MERIALDO, STATE CONTROLLER OF THE STATE OF NEVADA, RESPONDENT.
No. 3786
STATE OF NEVADA
March 29, 1954
April 12, 1954
268 P.2d 922
W. T. Mathews, Attorney General, George P. Annand, William N. Dunseath and John W. Barrett, Deputy Attorneys General, all of Carson City, for Respondent.
By the Court, BADT, J.:
This petition presents for determination the question of the constitutionality of sec. 8433, N.C.L.1929, as amended, requiring a district judge, before he may receive his monthly salary, to file an affidavit with the controller showing that no cases remain undecided which have been submitted to him for more than ninety days. We hold that the statute in question violates constitutional limitations.
Petitioner is the duly elected, qualified and acting judge of the Seventh judicial district court of the State of Nevada, in and for the counties of White Pine and Lincoln and the legislature heretofore fixed his salary at $7,200 per year, payable in monthly installments. He alleges that respondent state controller refuses to deliver his warrants for his salary for the past seven months, which refusal is based upon the petitioner‘s failure to execute the affidavit required by the statute, but that such statute is in violation of the constitution, is void and of no effect and is no justification for the controller‘s refusal to deliver the warrants.1
The act in question is sec. 8433, N.C.L.1929, as
“Section 1. Section 5 of the above-entitled act, being section 8433, N.C.L.1929, is hereby amended to read as follows:
“Section 5. Each district judge shall, before receiving any monthly salary, file with the clerk of each county within his district and with the state controller, an affidavit in which shall be set forth the number of cases, motions or other matters submitted to him as such district judge, regardless of the district in which he was sitting at the time of the submission of said cases, motions or other matters which remain undecided, and that no such case, motion or matter remains undecided which has been submitted for a period of more than ninety days.
“Sec. 2. This act shall be effective upon passage and approval.”
The section before the 1953 amendment, enacted in 1913, was restricted to cases submitted to the judge when sitting in his own district. The original act, Stats. 1891, ch. 25, p. 28, was entitled “An Act to prevent unnecessary delay in rendering judicial decisions by the Courts of this State.” It contained but two sections and required among other things that “No * * * Judge of the District Court * * * be allowed to draw or receive any monthly salary unless he shall take and subscribe an affidavit * * * that no cause in his court remains undecided that has been submitted for the period of ninety days.” Section 2 required the filing of the affidavit with the state controller. The 1913 act, amended in 1953, is entitled, in part, “to prevent unnecessary delay in rendering judicial decisions.” The constitutional provisions involved are section 15 of Article VI of the constitution, concerning the compensation of judicial officers and section 1 of Article III concerning the division of the powers of the government. The first of these reads, in part, as follows:
“COMPENSATION OF JUDICIAL OFFICERS. 15. The justices of the supreme court and district judges shall each
The second reads as follows:
“The powers of the government of the State of Nevada shall be divided into three separate departments—the legislative, the executive, and the judicial; and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”
In Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674, 675, a judgment was attacked as being coram non judice and void because in violation of sec. 5227, Revised Laws of 1912, reading in part: “Upon a trial of a question of fact by the court its decision must be given * * * within thirty days after the cause is submitted for decision.” This court held the statute to be directory merely.
In the recent case of Waite v. Burgess, 69 Nev. 230, 245 P.2d 994, 996, a motion was made to dismiss the appeal by reason of the statute providing that unless sureties on an appeal bond, after exception to their sufficiency, justify before the judge within five days, on notice, the appeal shall be regarded as if no such undertaking had been given. The filing of the undertaking being a jurisdictional requirement, such failure would then have invalidated the attempted appeal. The appellant had appeared with his sureties, within time, for such justification but the matter was set down by the judge for a later date beyond the five-day period. This court held that the statute “should be construed as demanding diligence on the part of the litigants rather than as an oppression upon the judge‘s duties of deliberation and of orderly administration of justice * * * [and] should be regarded as directory only,” when relating to judicial functions. Of special importance to the present case is this language used by the court:
The Indiana, Oklahoma and Ohio cases cited in Waite v. Burgess, supra, all hold firmly, under constitutional provisions similar to our own, that the legislative branch of the government may not constitutionally limit the judicial branch in respect to the time within which it shall determine cases within its jurisdiction. They held, under similar but not precisely the same conditions, that old and well-established principles were involved—the separation and independence of the three branches of government. Nothing can be clearer than that, under our constitutional provision, our courts “possess the entire body of the intrinsic judicial power of the state.” [224 Ind. 540, 69 N.E.2d 594.] This being so, neither the legislative nor the executive branches of the government may assume to exercise any part of that judicial power, and the district court cannot be directed or controlled or impeded in its functions “by either of those branches.” State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P. 689. See also Ex Parte Tully, 4 Ark. 220, 38 Am.Dec. 33.
Respondent seeks to distinguish the cases above
Respondent contends that sec. 8433, N.C.L.1929, as amended, Stats. 1953, 49, imposes no forfeiture for failure of a judge to decide a case within ninety days after submission, deducts nothing from his salary and subjects him only to a delay until such time as he may bring himself within the statute. We do not find this convincing. The withholding of a judge‘s salary for weeks or months might indeed be just as embarrassing and detrimental as an actual forfeiture of a part of such salary. Records submitted on appeal to this court sometimes contain thousands of pages of testimony and exhibits. A jury case recently tried in one of our district courts occupied some fifty court days. Consideration of a motion for new trial in that case might have required a study of that entire record and a decision could not conceivably have been expected within ninety days of the submission of the motion. Respondent suggests that in
Respondent refers us to several California cases but, as we have noted, the California provision appears in its constitution. Respondent concedes that if the statute commanded the judge to render his decision within ninety days, such situation would come within the condemnatory language found in the cases cited. The coercive means employed by the statute approach so closely to the actual command, however, that we do not consider the distinction important.
Respondent relies on State v. Atherton, 19 Nev. 332, 10 P. 901, upholding the provisions of section 6 of the Act of March 4, 1885, Stats. 1885, 60, General Stats. 1885, sec. 2490, providing for payment of salaries monthly to the district judges out of the special fund created by the quarterly payments into said fund by the treasurers of the respective counties of the sums fixed by the redistricting act. This court there contented itself with the simple statement that there was no constitutional objection to such method of payment, and that the provision for payment in monthly installments did not violate the provisions of section 15 of Article VI of the constitution. We do not find in the Atherton case any support for the present act.
We conclude that under the act in question the limitations placed by the legislature upon the right of a district judge to be paid his compensation exceeded the grant of power provided in
EATHER, C. J., and MERRILL, J., concur.
April 12, 1954. 268 P.2d 922, 926.
George E. Marshall, of Las Vegas, for Petitioner.
W. T. Mathews, Attorney General, George P. Annand, William N. Dunseath and John W. Barrett, all of Carson City, Deputy Attorneys General, for Respondent.
ON PETITION FOR REHEARING
Per Curiam:
Respondent, conceding that the original petition attacked only sec. 8433, N.C.L.1929, as amended, being sec. 5 of “An Act in relation to courts of record, to prevent unnecessary delay in rendering judicial decisions,” etc., now asserts that our order granting the precise relief prayed for, leaves in doubt the validity of the remaining seven sections of the entire act. He calls our attention to the fact that sec. 2 of the act, being sec. 8430, N.C.L.1929, requires, among other things, that each of the supreme court justices, before receiving any monthly salary, shall file in his office an affidavit reciting
We think it clear from our opinion that sec. 2 of the act, being sec. 8430, N.C.L.1929, is subject to the same infirmities as sec. 5 (sec. 8433, N.C.L.1929) and we so hold. No official duties of the state controller are affected by any of the remaining six sections, and further consideration of such sections would be unwarranted in this proceeding.
Rehearing denied.