In the Matter of the Application of HENRY J. JONES and JAMES G. GREGORY to Prohibit 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, from Proceeding with the Cause Entitled "The State of Nevada, Plaintiff, v. Henry J. Jones, Defendant (No. 2561)" and "The State of Nevada, Plaintiff, v. James G. Gregory, Defendant (No. 2562)" on Charges of Malfeasance in Office
Jones v. Jones
In the Matter of the Application of HENRY J. JONES and JAMES G. GREGORY to Prohibit 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, from Proceeding with the Cause Entitled "The State of Nevada, Plaintiff, v. Henry J. Jones, Defendant (No. 2561)” and "The State of Nevada, Plaintiff, v. James G. Gregory, Defendant (No. 2562)” on Charges of Malfeasance in Office.
[No. 2342]
In the Matter of the Application of HENRY J. JONES and JAMES G. GREGORY to Prohibit 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, from Proceeding with the Cause Entitled "The State of Nevada, Plaintiff, v. Henry J. Jones, Defendant (No. 2561)” and "The State of Nevada, Plaintiff, v. James G. Gregory, Defendant (No. 2562)” on Charges of Malfeasance in Office.
[173 Pac. 885]
1. Counties — Commissioner—Removal—Ci-iaeacteb oe PROCEEDINGS.
Complaint on bebalf of state for benefit of a county, stating that tbe complainant is a citizen, resident and taxpayer of tbe county, and is foreman of tbe grand jury and at tbe request of tbe grand jury petitions for removal of county commissioner, was a proper petition under Rev. Laws, 2S51, et seq., providing for removal, and not under section 6894, et seq., providing for removal after jury trial, since tbe allegations as to action on tbe grand jury’s request were surplusage; tbe complaint being sufficient without them.
Application for writ of prohibition by Henry J. Jones and another against the District Court of the Fourth Judicial District in and for the County of Elko and another.
Application denied.
Carey Van Fleet, for Petitioner:
The only proposition before the court is the construction of the complaints filed in the district court of the Fourth judicial district on the 24th day of April, 1918. These complaints are either accusations by the grand jury for malfeasance in office or private complaints for removal from office. They cannot constitute quo warranto proceedings, for the reason that they do not come under section 5656, et seq., of-the Revised Laws. The only proceedings in which the name of the state may be used are proceedings in quo warranto or criminal proceedings and accusations by the grand jury. In quo warranto proceedings in this state the party is entitled to a jury. (Rev. Laws, 5681.) Our constitution provides that all process shall be in the name of the State of Nevada, and all prosecutions shall be conducted in the name and by the authority thereof. {Ex Parte Clark, 141 Pac. 881.)
Inasmuch as the State of Névada has been invoked to prosecute the cases at bar, the defendants should be given all the rights which such prosecution entails. Both the people of the state and the defendants are adequately protected by continuing the prosecutions under section 6894, Revised Laws. (Kerr v. Superior Court, 62 Pac. 479.) It was the duty of the grand jury to investigate wilful misconduct in office. (Rev. Laws, 7028.)
From the testimony it appears that the grand jury by its action, amounting to a vote, determined that the defendants should be charged with malfeasance in office. It was then the duty of the grand jury to file accusations against the defendants, and not to proceed in any other way. (Pasten v. Railroad, 32 L. R. A. n. s. 785; Rector v. Smith, 11 L. R. A. 802; 20 Cyc. 1294, 1336; 12 R. C. L., sec. 20, p. 1036.)
It appears that the complaints were adopted by the grand jury. The grand jury could act only through its foreman in filing accusations, as appears to have been done. Counsel in charge of the prosecution, by injecting into the complaint words which might have some meaning of individual action, could not take away from the defendants their rights in any such manner or by any such device. {Thurston v. Clark, 40 Pac. 435; Boyd v. United States, 116 U. S. 616.) It was not necessary that the accusations be presented in the presence of the grand jury. {In Re Burleigh, 78 Pac. 242.)
The only portion of the complaint which would at all seem to point to a prosecution by a private citizen is the prayer, or rather that part of the prayer which waives the fine of five hundred dollars. The prayer is no part of the complaint. The portions which bring the complaint within the provisions of section 6894, Revised Laws, are the substantial portions of the complaint. The complaint being brought by the State of Nevada, presented at the request of the grand jury, signed by the foreman, as appears from the face of the complaint itself, charges the defendants with malfeasance in office. There should be little doubt as to the meaning of the complaint, but if there is any doubt it should be resolved in favor of the defendants. (Fitch v. Board of Supervisors, 54 Pac. 902.)
Geo. B. Thatcher, Attorney-General, Edw. T. Patrick, Deputy Attorney-General, and» George F. Talbot, for Respondent:
Any complainant is authorized to institute the proceedings for removal in the name of the state. (Rev. Laws, 2852.) Analagous proceedings for removal from and to determine the right to office have been sustained when brought in the name of the state on the relation of an official or citizen. (State ex rel. McMillan v. Sadler, 25 Nev. 165.) Quo warranto and actions for removal from office are civil proceedings. (Ames v. Kansas, 111 U. S. 449.)
The proceedings are not in conflict with the fourteenth amendment to the constitution of the United States. If effort were being made to convict these county officers of any crime, it'is conceded they would be entitled to a jury trial under the state constitution, but the proceedings for removal are not for the purpose of convicting of crime, and do not involve any question of life, liberty, or right of property. The guaranty of right of trial by jury in the federal constitution secures that right in the federal cóurts; it does not prevent the restriction of trial by jury in the state courts. (Walker v. Savoinet, 92 U. S. 90; In Re King, 51 Fed. 434; Kansas v. Bradley, 26 Fed. 289; Ex Parte McNealy, 36 W. Ya. 84.)
By the Court,
Sanders, J.:
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, and acting members of the board of'county commissioners of Elko County. As the result of investigations made by the grand jury of said county selected for the year 1917, John H. Cazier, the foreman thereof, with the knowledge and approval of its members, and upon the advice and direction of the attorneys acting for the county of Elko and the State of Nevada, on the 26th day of October, 1917, filed two separate complaints in the district court of the Fourth judicial district of the State of Nevada, in and for the county of Elko, under sections 2851 to 2854, inclusive, of Revised Laws, which provide for the summary removal from office of any person who shall refuse or neglect to perform any official act in the manner and form as now prescribed by law, or who shall be guilty of any malpractice or malfeasance in office. One complaint is entitled "The State of Nevada, Plaintiff, against Henry J. Jones, Defendant, " and the other "The State of Nevada against James G. Gregory, Defendant." The complaints make general charges for the removal of the defendants from office for malfeasance in office, and demand that the defendants be cited to appear before the said court on a day certain and that the court proceed to hear, in a summary manner, the complaints and the evidence, and if on the hearing it shall appear that the charges are sustained, that the court enter a decree that the defendants be deprived of their office. Thereafter the complaints, on motion of the attorneys for the plaintiff, were dismissed without prejudice. Thereupon, with the leave of court, two separate complaints were filed, one entitled "The State of Nevada, Plaintiff, on the Relation of John H. Cazier, Complainant, against Henry J. Jones, Defendant," and the other against James G. Gregory, defendant. The complaint against Jones specifies 134 charges of alleged misconduct in office, and that against Gregory specifies 136 alleged charges of misconduct, and demand that the defendants be removed from office in the summary manner as prescribed by section 2851, et seq., Revised Laws. The caption of each complaint is in part as follows:
" 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, et seq., and that the plaintiff was attempting to proceed under said sections, whereas the alleged charges therein made are based upon written accusations presented by the grand jury of the county of Elko and filed in said court, and that the court is without jurisdiction to proceed against the defendants under section 2851, et seq., and that the proceedings, if any be had, should be under section 6894, et seq., of Revised Laws, which provide for the removal of civil officers otherwise than by impeachment, and provide for a trial by jury, and that the trial be conducted in the same manner as a trial upon an indictment. (Rev. Laws, 6903.) The motions to quash were denied, and the causes set for trial in said court on the 13th day of May, 1918.
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 upon the authority of the case of Gay v. District Court, recently decided in this court (41 Nev. 330), the said district court has jurisdiction and is vested with' full power and authority to hear the complaints and the evidence and render a decree. The application for the writ of prohibition must therefore be denied.
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.