COUNTY OF PERSHING, W. C. PITT, J. T. GOODIN, H. J. MURRISH, JOHN A. JURGENSON, C. L. YOUNG, and J. H. CAUSTEN, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF HUMBOLDT, and HONORABLE T. C. HART, District Judge thereof, Presiding, Respondents; STATE OF NEVADA, Ex Rel. County of Pershing, Petitioner, v. T. P. EBERT, A. F. TROUSDALE, and J. I. PETERSON, as County Commissioners of the County of Humboldt, State of Nevada, Respondents; ZOE PALMER ODEN, Respondent, v. JOHN I. PETERSON, T. P. EBERT and A. F. TROUSDALE, as the Board of County Commissioners of Humboldt County, State of Nevada; J. W. DAVEY, as County Clerk of said Humboldt County; F. GERMAIN, as County Auditor of said Humboldt County; and F. G. HOENSTEIN, as County Treasurer of said Humboldt County, Appellants
County of Pershing v. Sixth Judicial District Court ex rel. County of Humboldt
COUNTY OF PERSHING, W. C. PITT, J. T. GOODIN, H. J. MURRISH, JOHN A. JURGENSON, C. L. YOUNG, and J. H. CAUSTEN, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF HUMBOLDT, and HONORABLE T. C. HART, District Judge thereof, Presiding, Respondents. STATE OF NEVADA, Ex Rel. County of Pershing, Petitioner, v. T. P. EBERT, A. F. TROUSDALE, and J. I. PETERSON, as County Commissioners of the County of Humboldt, State of Nevada, Respondents. ZOE PALMER ODEN, Respondent, v. JOHN I. PETERSON, T. P. EBERT and A. F. TROUSDALE, as the Board of County Commissioners of Humboldt County, State of Nevada; J. W. DAVEY, as County Clerk of said Humboldt County; F. GERMAIN, as County Auditor of said Humboldt County; and F. G. HOENSTEIN, as County Treasurer of said Humboldt County, Appellants.
[Nos. 2396, 2397, 2401]
COUNTY OF PERSHING, W. C. PITT, J. T. GOODIN, H. J. MURRISH, JOHN A. JURGENSON, C. L. YOUNG, and J. H. CAUSTEN, Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF HUMBOLDT, and HONORABLE T. C. HART, District Judge thereof, Presiding, Respondents. STATE OF NEVADA, Ex Rel. County of Pershing, Petitioner, v. T. P. EBERT, A. F. TROUSDALE, and J. I. PETERSON, as County Commissioners of the County of Humboldt, State of Nevada, Respondents. ZOE PALMER ODEN, Respondent, v. JOHN I. PETERSON, T. P. EBERT and A. F. TROUSDALE, as the Board of County Commissioners of Humboldt County, State of Nevada; J. W. DAVEY, as County Clerk of said Humboldt County; F. GERMAIN, as County Auditor of said Humboldt County; and F. G. HOENSTEIN, as County Treasurer of said Humboldt County, Appellants.
[181 Pac. 960; 183 Pac. 314]
1. Counties — Creation, Existence, and Change — Legislative Control.
Since a county is called into existence by the legislature, and therefore is its creature, its territory may be cut up in parcels by the legislature, and its common property and common burden apportioned in such manner as the legislature may deem reasonable and equitable, or its existence as a county may be blotted out, all even against the will of its inhabitants.
2. Statutes — Law to Take Effect on Contingency — Power of Legislature.
The legislature has power to pass a law to take effect on a contingency expressed in the body of the law; and may designate such contingency as a vote of the people of the territory affected by the law.
3. Counties — Formation of New Out of Old — Referendum—Constitution — “In and Foe.”
Stats. 1919, p. 75, creating and organizing the county of Pershing out of a portion of Humboldt County, is not a local law “in and for” Humboldt County, making necessary referendum to the voters of such latter county under Const, art. 19. sec. 3, providing the referendum powers -are reserved to the electors of each county as to all local legislation in and for the respective counties.
1.Statutes — Title — Organization oe County — Constitutionality.
Stats. 1919. p. 75, organizing the county of Pershing out of a portion of Humboldt County, and certain of its provisions, held not unconstitutional on the ground that such provisions are not embraced by the title, the disputed provisions being incident to the complete organization of the county, and germane to the main object of the act.
5. Statutes — Partial Invalidity — Eeeect.
Unless the validity of a whole statute depends on the constitutionality of one or more provisions not germane to the title, or are so blended with the scope and purpose of the act . as a whole as to affect Its validity or any other of its provisions, the invalidity of one or more of such provisions does not defeat the general scope and purpose of the act.
0. Constitutional Law — Determination oe Constitutional Questions.
The constitutionality of statutory provisions should not be passed upon until some right dependent on the particular provision is brought before the court for adjudication.
7. Constitutional Law — Rigi-it to Question Statute.
One not prejudiced by the enforcement of a statute cannot question its constitutionality or obtain decision as to its validity on the ground it impairs the rights of others, so that a county from whose territory another is formed by the legislature cannot question the validity of the formative statute in its provisions designating officers of the new county, etc.
ON PETITION EOR REHEARING
1. Appeal and Error — Rei-iearings.
Rehearings in the supreme court are not granted as a matter of right, and are not allowed for the purpose of reargument, unless there is reasonable xirobability that the court may have arrived at an erroneous conclusion.
2. Counties — Change oe Boundaries — Consolidation or Creation.
Unless a limitation exists in the constitution, the power of the legislature Is absolute, by general or special statutes, to provide change of boundaries, division, addition, consolidation of existing counties, or the creation and organization of new counties.
3. Constitutional Law — Division or Creation oe New County.
The whole matter of the division of counties and the creation of new ones is in its nature political, and not judicial, and belongs wholly to the legislative department of the government.
4. Statutes — Referendum—Construction.
In construing tlie referendum as applied to legislation for counties, the usual rules of construction are applicable; the the thing to he sought being the thought expressed.
5. Constitutional Law — Counties—Vested Rights — Boundaries of Counties — Rights of Inhabitants.
The inhabitants of a county have no vested rights as far as the boundaries of the count.!' or the extent of its territory are concerned, and the same may be changed without their consent.
Appeal from Sixth Judicial District Court, Humboldt County; E. F. Lunsford, Judge.
Petition for writ of prohibition by the County of Pershing and others against the Sixth Judicial District Court and others, and petition for mandamus by the State of Nevada, on the relation, etc., against Tom P. Ebert and others and suit by Zoe Palmer Oden against John I. Peterson and others, resulting in an injunctive order, from which defendants appeal.
Alternative writ of prohibition made permanent and peremptory, writ of mandate directed to issue, and injunctive order affirmed.
On petition for rehearing,
former opinion adhered to.
Moore & McIntosh and Norcross, Thatcher & Wood-burn, for Petitioners:
The district court of one county has no jurisdiction to enjoin the officers of another county from performing their official functions. Such an assumption of power would be an unlawful interference with both the legislative and executive branches of the government. Const. Nev. arts. 3, 6; State v. Dickerson, 33 Nev. 540; Wallace v. Reno, 27 Nev. 71; Gibson v. Mason, 5 Nev. 284; Osborn v. Bank, 22 U. S. 866; In Re Estate of Sticknoth, 7 Nev. 236; State v. Ormsby County, 7 Nev. 392; Ex Parte Blanchard, 9 Nev. 101; Ex Parte Darling, 16 Nev. 98; Esmeralda County v. District Court, 18 Nev. 438; State v. Wildes, 116 Pac. 595; State v. Arrington, 18 Nev. 412. A court cannot assume allegations of the unconstitutionality of a statute to be true. Rev. Laws, 5142. The right of public officials to perform the duties of their several offices cannot be attacked collaterally. 29 Cyc. 1416.
Only such laws or resolutions as pertain “to such county only” can be submitted to a referendum vote. The act in question pertains to Pershing County as well as to Humboldt County. Immediately upon the approval of the act creating the county of 'Pershing, it became a county as much as any other county in the state. Leake v. Blaisdel, 6 Nev. 43; Clark v. Irwin, 5 Nev. Ill; Hooten v. McKinney, 5 Nev. 194. Such an act as the one in question can be submitted to the electors of the' entire state only. State v. Brodigan, 37 Nev. 37. The legislature only has power to enact legislation authorizing the submission of “local, special and municipal legislation” to counties or municipalities. Const. Nev. sec. 3, art. 19.
A county is an integral part of the state for govern-, mental purposes. Const. Nev. arts. 4, 8, 15, 18; 15 C. J. 388; 7 C. J. 923; Sacramento County v. Chambers, 164 Pac. 613; Hersey v. Milson, 47 Mont. 132; News Co. y. Grady County, 161 Pac. 207; Madden v. Lancaster County, 65 Fed. 188; People v. Johnson, 34 Colo. 143; Laramie County v. Albany County, 92 U. S. 307; Cons. Ice Co. v. City, 49 N. E. 713; Schweiss v. District Court, 23 Nev. 226. The creation of new counties is not among the powers of a board of county commissioners. Ann. Cas. 1916b, 820; Hopping v. Richmond, 150 Pac. 977.
R. M. Hardy, District Attorney of Pershing County, for Petitioners:
The power to create counties, to alter the boundaries of those in existence, to provide for their government and for the general regulation of their affairs, is inherently and exclusively in the legislature. Const. Nev. sec. 1, art. 4.
The creation of new counties, the changing of county boundaries, and the making of all provisions germane and pertinent thereto, by legislative enactment, is not only by virtue of the authority of the constitution, but it has become the established and recognized system. This system should not be disturbed by the judiciary, except upon the strongest showing of abuse or usurpation of power. State v. Stoddard, 25 Nev. 452; Clarke v. Irwin, 5 Nev. Ill; Hooten v. McKinney, 5 Nev. 194; Gibson v. Mason, 5 Nev. 284; Hess v. Pegg, 7 Nev. 23; Evans v. Job, 8 Nev. 322; Youngs v. Hall, 9 Nev. 212; State v. Swift, 11 Nev. 128; Tilden v. Esmeralda County, 32 Nev. 320; State v. Lytton, 31 Nev. 67.
Warren & Haiokins and Thos. A. Brandon (Edward F. Treadioell, of Counsel), for Respondents:
The people of each county have a right to a referendum with respect to any local, special or municipal act of the legislature applicable only to such county. Const. Nev. sec. 1, art. 9; State v. Brodigan, 37 Nev. 37; Rose v. Port of Portland, 82 Or. 541.
While the constitutional provision granting the referendum to counties and municipalities in regard to local, special and municipal legislation is not self-executing, it was put into effect and operation by the act of 1915, and the legislature, irrespective of any such provision in the constitution, had power to confer the right of referendum upon the people of the county affected with respect to such legislation. Stats. 1915, p. 157.
The legislature has power to pass a law to take effect on a contingency, and it may designate that contingency as a vote of the people of the certain territory affected. 26 Am. & Eng. Ency. 567; People v. McFadden, 81 Cal. 489; In Re Pfahler, 150 Cal. 71; Van Dusen v. Fridley, 6 Dak. 622; People v. Raynolds, 10 111. 1; Jasper County v. Spittler, 13 Ind. 235. It is customary for the legislature to refer the question of county division to a vote of the people of the county. Trinity County v. Polk County, 58 Tex. 321; Duncombe v. Prindle, 12 Iowa, 2; Reynolds v. Holland, 35 Ark. 56; State v. Nelson, 34 Neb. 162; Wayne Co. v. Cobb, 35 Neb. 231.
The act in question is local, special and municipal, and applies only to one county. Const. Nev. sec. 3, art. 19; Stats. 1915, p. 157. Even after the act was passed Pershing County did not become an organized county until all its officers were installed. State v. Blasdel, 6 Nev. 40; People v. McGuire, 32 Cal. 140.
The act having been, by the constitution and the statute, passed subject to the referendum, and the referendum having been duly invoked with reference thereto, the operation of the act is suspended thereby. Rigdon v. Common Council, 30 Cal. App. 107; Norris v. Cross, 25 Okl. 287; Stetson v. City of Seattle, 74 Wash. 606; Sears v. Multnomah County, 49 Or. 42; State v. Moore, 103 Ark. 48; Kemper v. Carter, 165 S. W. 773; Commonwealth v. Day, 23 S. W. 193; Akin v. State, 14 Tex. Cr. App. 142.
The act in question is unconstitutional, because it attempts to consolidate the offices of clerk and treasurer and the offices of sheriff and assessor. Const. Nev. sec. 32, art. 4; State v. Douglas, 33 Nev. 82.
Contrary to the constitution, the act embraces more than one subject, and attempts to amend acts which are not referred to in the title. Const. Nev. sec. 17, art. 4; Philbin v. McCarty, 24 Kan. 393; Ballentyn v. Wicker-sham, 75 Ala. 533. The constitution is mandatory in this particular. State v. Silver, 9 Nev. 226; State v. Rogers, 10 Nev. 250; State ex rel. Drury v.'Hallock, 19 Nev. 384.
Where constitutional and unconstitutional provisions of a statute are so inseparably blended as to make it clear that either would not have been enacted without the other, the whole act is void. San Francisco v. S. V. W. W., 48 Cal. 493; Read v. Railroad, 32 Cal. 212; Orange County v. Harris, 97 Cal. 600; Lathrop v. Mills, 19 Cal. 513.
If the provisions of the act regarding the consolidation of officers are unconstitutional, it results that the proper officers of the county have never been appointed, the county never organized, and that these proceedings must be dismissed. State v. Blasdel, 6 Nev. 40; People v. McGuire, 32 Cal. 140; Commissioners v. Perkins, 38 Pac. 915; Commissioners v. Woods, 106 Pac. 923; Mile v. Kent, 60 Ind. 231; Buckinghouse v. Gregg, 19 Ind. 401.
By the Court,
Sanders, J.:
These cases were argued and submitted as a single case. For convenience we will refer to it as the case of Pershing County against Humboldt County, since it appears that the latter declines to recognize Pershing County as being a legally created and established county of the state.
On March 18, 1919, an act of the legislature was approved entitled "An act creating and organizing the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County." Stats. 1919, p. 75. On the same day, to wit, March 18, 1919, the governor approved an act entitled "An act to amend sections 16 and 19 of an act entitled 'An act creating and organizing' the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.'" Stats. 1919, p. 82.
On the change from the territorial to a state government the several counties of the Territory of Nevada were recognized as legal subdivisions of the state. Since that time the legislature has, by special legislative enactments, changed the boundaries of some, consolidated and divided others, until there now exists seventeen organized counties in the state, including the alleged county of Pershing.
Subject in a state only to constitutional limitation, a county is the merest creature of the legislature. It is recognized by the fundamental law of this state as a body corporate. Const. Nev. art. 17, sec. 1.
From the legislature a county derives its name, its extent of territory, its mode and manner of government, its power and rights. It is a creature of the legislature. Called into existence by it, and subject to the restric tions named, its whole being may be changed by the same power which created it. Its territory may be cut up and parceled out to the other counties; its common property and common burden apportioned in such manner as to the legislature may seem reasonable and equitable ; its existencé as a county blotted out; and this all against the will of its inhabitants. Vincent v. County of Lincoln (C. C.) 30 Fed. 751; Comrs. of Laramie County v. Comrs. of Albany County, 92 U. S. 307, 23 L. Ed. 552; Board of Comrs. v. City of Osborne (Kan.) 180 Pac. 233; Cooley, Const. (2d ed.) 192; 11 Cyc. 341-345; 7 R. C. L. 923-926.
But, if we clearly interpret the position taken by the learned counsel for Humboldt County in these original proceedings, it is their contention that since the enactment of the initiative and referendum by the legislature and its ratification by the people, the fundamental principle that a state through the legislative department of its government may divide the established territory of a county and give to a new county taken therefrom a corporate existence is "local legislation" within the meaning of the referendum clause of the constitution and the act passed in aid of its execution (Const. Nev. art. 19, sec. 3; Stats. 1915, p. 157), and therefore the act creating and organizing Pershing County out of a portion of Humboldt County is reserved by the referendum law to the people of Humboldt County to signify by their votes, at an election called for that purpose, their approval or rejection of the law, and that the referendum having been duly invoked with reference to the law in question, its operation is suspended until the qualified electors of Humboldt County have been given an opportunity to signify their approval of the law. We fully recognize the rule that the legislature has the power to pass a law to take effect on a contingency expressed in the body of the law, and that the legislature may designate that contingency as a vote of the people of the territory affected by the law. 26 Am. & Eng. Ency. Law, 567. This rule is recognized to ,a certain extent by this court in the case of Hess v. Pegg, 7 Nev. 28, and was expressly applied by the Supreme Court of California to the division of a county in the case of People v. McFadden, 81 Cal. 489, 22 Pac. 851. But it is manifest from section 20 of the act that it was the intention of the legislature that the act creating and organizing the county of Pershing out of a portion of Humboldt County should become effective immediately, without regard to the will of the inhabitants of Humboldt County. This is a matter for the legislature, and it is not for this court to oppose its judgment to that of the legislature in this important particular. Unless the law be in "clear, palpable and direct conflict with the written constitution," it must be sustained."
Sec. 3, art. 19, of the constitution provides, inter alia:
"The initiative and referendum powers in this article provided for are further reserved to the qualified electors of each county and municipality as to all local, special and municipal legislation of every character in or for said respective counties or municipalities."
We concede, or it must be conceded, that an act creating a new county out of territory of an established county relates to and necessarily affects the latter, but we are unable to bring ourselves to the conclusion that such legislation is a local law "in or for" the county out of which the new county is created. But on the contrary, if it be local legislation, as the term is used in section 3, article 19, of the constitution, it is legislation for the new county of Pershing, and not for the old county of Humboldt.
Counties are of purely a political character, constituting the machinery and essential agency by which free governments are upheld, and through which, for the most part, their powers are exercised. Their functions are purely of a public nature. 11 Cyc. 351.
Whatever may be the literal import of the initiative and referendum amendment to the constitution, it must be construed with others of the organic law. It cannot be construed that the legislature and the people intended by its enactment and adoption to surrender the sovereignty of the state over a particular portion of its territory to the people who inhabit it. Such interpretation would amount to a recognition of the' state's independent right of dissolution. It would lead to sovereigntial suicide. It would result in the creation of states within the state, and eventually in the surrender of áll state sovereignty. Hedges, "Where the People Rule," 15-16.
In view of the essential character and nature of a county as it relates to and is connected with the sovereignty of the state, we are of the opinion that the power which the legislature possesses to divide counties and apportion their common burdens is not abridged, limited, restricted or affected by the initiative and referendum, and the law in question is not thereby suspended.
It is next insisted and strenuously urged that the special provisions of the act, incident to the organization of the county of Pershing, are within the constitutional prohibition against the enactment of special and local laws and void; as in section 9 of the act it is attempted to consolidate the offices of clerk and treasurer, and the offices of sheriff and assessor; that section 19 of the act is contrary to the general law regarding the apportionment of senators and representatives; that the act purports to divide townships, school districts and election precincts, and makes no provision for township government in that portion of territory falling within Pershing County; that the act contains provisions not embraced by its title, and attempts to amend specific statutes not referred to in the title and which are not reenacted. To discuss these disputed provisions separately would extend this opinion to an unreasonable length. The law concerning them is well settled and has been applied in numerous cases arising out of just such cases as this.
By the very terms of the title of the act the disputed provisions are incident to the complete organization of Pershing County and are germane to the main object of the act.
Unless the validity of the whole act depends upon the constitutionality of one or more of these provisions, or that they are so blended with the general scope and purpose of the act as a whole as to affect the validity of the whole act, or any other of its provisions, its validity, if it should be invalid, does not defeat the general scope and purpose of the act. People v. McFadden, supra.
Conceding, but not deciding, that one or more of the provisions is against the general law for a uniform system of government for the counties of the state, we ought not in this action to express any opinion as to its constitutionality. "It will be time enough to pass upon it when some right dependent thereon is brought before the court for adjudication." Furthermore, we are of the opinion that the parties respondent have not shown themselves to be in a position to attack the constitutionality of these separate provisions. The rule is well established that one who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality, or obtain a decision as to its invalidity, on the ground that it impairs the rights of others. 6 R. C. L. 89. This rule applies to the position of Humboldt County in this case. We are unable to perceive in what manner the designation of officers of Pershing County and the manner of its organization affects Humboldt County.
Without regard to the constitutionality of the separate and distinct provisions of the act, we are clearly of the opinion that the act as a whole is constitutional. It is therefore ordered that the alternative writ of prohibition heretofore issued be and is hereby made permanent and peremptory; and it is further ordered that the writ of mandate, as demanded, do issue; and the injunctive order appealed from is affirmed.