THE STATE OF NEVADA, ex rel. J. G. KAUFMAN, M. E. LEAVITT, and E. R. LAM, Relators, v. C. T. MARTIN, BYRON GATES and I. A. STROSNIDER, Constituting the Board of County Commissioners of Lyon County, Nevada, Respondents
State ex rel. Kaufman v. Martin
THE STATE OF NEVADA, ex rel. J. G. KAUFMAN, M. E. LEAVITT, and E. R. LAM, Relators, v. C. T. MARTIN, BYRON GATES and I. A. STROSNIDER, Constituting the Board of County Commissioners of Lyon County, Nevada, Respondents.
JANUARY TERM, 1910
[No. 1846]
THE STATE OF NEVADA, ex rel. J. G. KAUFMAN, M. E. LEAVITT, and E. R. LAM, Relators, v. C. T. MARTIN, BYRON GATES and I. A. STROSNIDER, Constituting the Board of County Commissioners of Lyon County, Nevada, Respondents.
1. Counties — Change of County-Seat — Petition—Statutes.
Comp. Laws, 5007, requiring an election for the removal of the county-seat when three-fifths of the qualified electors of the county, each elector being a taxpayer thereof as appears by the last assessment roll, who have taken the oath for registration of electors, shall petition the county commissioners thereof, and section 5010, providing that every petition shall be accompanied by the certificate of the registry agent where the petitioners reside, showing that they are qualified electors, as appears by the registry list, or by affidavits filed in his office of persons not registered at the last general or special election, but who are qualified electors, require a petitioner to be a taxpayer whose name appears upon the last assessment roll and requires him to be a qualified elector, and the fact that one may have failed to register for a special election does not disqualify him where’ he possesses the substantial qualifications and is a taxpayer and voter as indicated.
2. Counties — Change of County-Seat — Petition—Statutes—"Taxpayeb.”
Persons who appear on the assessment roll as paying taxes only in a partnership capacity are taxpayers within Comp. Laws, 5007, providing for the removal of a county-seat on three-fifths of the qualified electors of the county, each elector being a taxpayer thereof, petitioning therefor.
On Rehearing
1. Statutes — Construction.
Where different meanings may reasonably be given to a statute, the one should be applied which will make it effective and not nullify it.
2. Counties — County-Seats—Elections—Petition.
Under Comp. Laws, 5007, providing that, when three-fifths of the qualified electors of a county petition for the removal of the location of the county-seat, the county commissioners shall order an election, and the place receiving the majority of votes cast shall be declared ' the county-seat, and, if no place receives a majority, a second election shall be held, etc., a petition for the removal of the county-seat which alleges every statutory requirement is not void because it also asks that an election be called to determine whether the county-seat shall be removed to a particular place, and the county commissioners may ignore the reference to the particular place and proceed to call an election without designating any place for which the votes are to be cast.
Original proceeding. Mandamus by the State, on the relation of J. G-. Kaufman and others, against C. T. Martin and others, constituting the Board of County Commissioners of Lyon County.
Application denied.
Huskey & Springer, for Relators:
I. In the present case we might say "the proposition, therefore, must go to this extent: That the county commissioners are clothed with absolute and despotic authority over the rights of the petitioners. If the determination of the county commissioners be not final, then the writ must issue; for under the law the failure to act on the petition brings the proceeding to a complete stop, and there is no n other remedy in law or equity.”
The case of People v. Alameda Qounty, 45 Cal. 395, involves the construction of the California law on the subject of removal of county-seats. That law, like our statute of March 2, 1867, • on the subject, provides no criterion for determining the sufficiency of the petition for an election, but leaves it to the discretion of the board of supervisors. That case, like the present one, was an application for a writ of mandamus, to compel the board to call the election. The answer alleged that the board was not satisfied from the proof offered that the petition was sufficient. The court considered this no defense and ordered a reference to a district court to try and determine the question of the sufficiency of the petition.
In Stockton Railroad Go. v. Stockton, 51 Cal. 328, a writ of mandamus was granted to compel the City of Stockton to deliver certain bonds.
This case also proceeds on the theory that by nonuser of his discretionary powers of investigation the discretion of the governor in the premises ceased and the duty became ministerial, the petition being in fact sufficient. In all of these cases the distinction between the discretion to determine preliminary facts and discretion in doing the act ordered by statute when the preliminary facts have been determined in favor of doing the act is continually kept in sight.
In Good v. Common Council, 90 Pac. 45, an application was made for mandamus to compel the calling of an election. In this case, also, the statute provided that the election was to be called upon the presentation of a petition. The common council voted "to disregard said petition and to table and file the same Avithout action.” Evidently the California court did not consider the respondents’ poAver "exhausted” by this act, in conformity Avith the theory advanced by respondents in the present case, for it granted the Avrit and ordered the election to be called. In this case also the election was ordered called after the time fixed by statute therefor had expired.
We ask, Avhy, if a board of county commissioners, upon a mistaken view of the law, refuses to do an act enjoined upon it by law, should it be treated differently from a district court under the same circumstances?
Whether the Eureka County commissioners case has been overruled or not, it has no application in the present case. Whatever discretion as to the determination of preliminary fact Avas vested in the commissioners by the statute construed in the Eureka County commissioners case, certainly there can be no question that no discretion Avhatever is conferred upon respondents by the statute of March 2, 1877.
In Esmeralda County v. District Court, 18 Nev. 438, this court decided the specific proposition that the determination of a fact by reference to the assessment roll is a ministerial and not a judicial act.
Where an officer or board is under a clear ministerial duty to give notice of and order an election, mandamus lies to compel the performance of that duty. {Rizer v.People, 18 Colo. App. 40, 69 Pac. 315; McConihev.State, 17 Fla. 238; Peoplev. Fairbwry, 51 Ill. 149; Glencoe v. People, 78 Ill. 382; Statev. New Orleans, 52 La. Ann. 1604, 28 So. 116; Statev. St. Louis School Board, 131 Mo. 505, 33 S.W. 3; Morris v.Wrightson, 56 N. J. L. 126; Peoplev. Brooklyn, 77 N. Y. 503; State v. Young, 6 S. D. 406, 61 N. W. 165; Kimberly v. Morris, 87 Tex. 637, 31 S. W. 808; Jenney v. Alden, 64 Atl. 609; State v. Plinclde, 111 N. W. 217; State v. Crabtree, 35 Neb. 1Ó6, 52 N. W. 842.)
But if such board wrongfully fails, neglects or refuses to cause the election to be held within the statutory period, while the board has no further power, within itself, to cause the election to be held thereafter, the supreme court may, at the instance of the petitioners whose prayer for an election has been refused, compel such election to be held after the expiration of the statutory period. (Statev. Patterson, 207 Mo. 129; Good v. Common Council, 90 Pac. 45; Mann v. Mercer County Coiort, 52 S. E. 776; McConihe v. Florida, 17 Fla'. 238; Statev. Young, 6 S. D. 406; People v. Common Council of Brooklyn, 77 N. Y. 503, 33 Am. Rep. 659; People v. Town of Fairbwry, 51 Ill. 150; Statev. Board of Commissioners, 39 Kan. 293; Coleman v. People, 7 Colo. App. 243.)
II. The statute requires only three-fifths of the taxpaying-electors of the county, as shown by the assessment rolls, to sign the petition, not three-fifths of all of the electors.
The words "Whenever three-fifths of the qualified electors of any county, each elector being a taxpayer, * * * shall petition^’ etc. (Comp. Laws, 5007), are not ambiguous. They are susceptible to but one meaning, and that is: "Whenever three-fifths of the taxpaying electors shall petition.”
.The construction or composition is crude and cumbersome; but a little thought and the application of the ordinary rules of grammatical analysis will show that the meaning is unequivocal. "Whenever three-fifths of the qualified electors of any county” — what specific qualified electors of the county are referred to? The succeeding clause, inserted between commas, answers this question: "each elector being a tax payer.” That is, each of the qualified electors referred to, from which the three-fifths are to be selected, must belong to the taxpaying class. The meaning would have been the same had the foil owing construction been used: "Whenever three-fifths of the qualified electors of any county (such qualified electors being taxpayers) shall petition” etc. The words "each elector being a taxpayer” are inserted, not as a limitation on "three-fifths” but as a limitation on the words "qualified electors.” They serve merely to further limit and designate the class of electors meant and the class from which the three-fifths are to be chosen, viz: the electors who are "qualified” and who are also "taxpayers”
III. A statute is to be construed so as to carry out the intent of the legislature, though such construction may seem contrary to the letter of the statute. (Sutherland on Statutory Construction, 2d ed. secs. 517, 363, 364; Hoioes v. Abbot, 20 Pac. 572; Burton v. Todd, 9 Pac. 663; Smithy. Randall, 65 Am. Dec. 475; Calaveras Co. y. Brockway, 30 Cal, 325; Knowles v. Yates, 31 Cal. 82; Kinsey v. Kellogg, 3 Pac. 405; Stockton School Dist. v. Wright, 66 Pac. 34; Thompson v. State, 20 Ala. 54; Inhabitants of Gray v. Cumberland Co. Comrs., 22 Atl. 376; People v. Lacombe, 1 N. E. 599; Territory v. Clark, 35 Pac. 882; Baring v. Erdman, Fed. Cases No. 981; City of Evansville v. Summers, 9 N. E. 81.)
IV. We invite the attention of the court to the general rule of statutory construction that "where a question of construction is before the court, words and phrases may be transposed and grammatical sense does not always control.” (Idem, sec. 367.)
C. H. Miller and Mack & Gi'een, for Respondents:
I. It has repeatedly and uniformly been held by this court that mandamus does not lie to review or control the exercise of judicial functions. {State, ex rel. Office Specialty Co.,y. Curler, 26 Nev. 347; State v. Commissioners, 8 Nev. 309; Hardin v. Guthrie, 26 Nev. 246; State v. Wright, 4 Nev. 119; Hoole v. Kinkead, 16 Nev. 217; State v. Murphy, 18 Nev. 89; State v. Green Co. Commissioners, 119 Ind. 444.) An examination of the authorities cited by relators will disclose that in all of the cases cited the board, officers or inferior tribunal either refused to act at all, or acted upon an erroneous construction of the law, against the consequences of which error the petitioner has no plain, speedy and adequate remedy. In this case none of these prerequisites are present, and the writ of mandamus would not be an appropriate remedy, even in the states where the cases cited by relators were decided.
II. Assuming for the sake of argument that the relators’ construction of the statute is correct, and the construction ■applied by the board is incorrect, equity would grant ample relief, whether the decision of the board resulted from fraud or mistake. • An erroneous construction of the law, entirely independent of any motives that may have prompted it, would constitute constructive fraud, or fraud in law, against the consequence of which equity will relieve.
"To entitle a relator to a writ of mandamus, his right must be a clear legal one. Mandamus will never issue to enforce an equitable right” (13 Ency. PI. & Pr. 496; and cases cited; 26 Cyc. 151.)
III. The writ of mandamus was never designed to displace or supersede other legal or equitable remedies. In an application for a writ of mandamus the relator must show a clear legal right to the relief demanded. (State v. Noyes, 25 Nev. 32; Slate v. Stoddard, 25 Nev. 452; Pyne v. LaGrave, 22 Nev. 417; State v. Boerlin, 98 Pac. 402.)
The petition presented to the board was not sufficient to invoke the authority of the board to call a special election. The petition prayed for a special election to move the county-seat of Lyon County from the Town of Dayton to the City of Yerington. Under the law, no election could be held for such purpose, and the board was perfectly right in denying the petition. The law authorizes the filing of a petition to move the county-seat merely — not to move it to a particular place, for that is a question to be determined by the voters; and was it not right for the board of county commissioners to deny the petition under these circumstances, regardless of whether it contained the requisite number of names or not? For there can be no presumption indulged by the board of county commissioners that the signers of the petition could have been induced to sign the petition under any other condition than that the election would be held for the purpose of moving the county.-seat from the Town of Dayton to the City of Yerington. Relators affirm that the prayer for a removal to the City of Yerington is but a surplusage; and could it be said that it would have been fair for the board of county commissioners of Lyon County to call a special election on the petition of qualified electors and taxpayers of said county who had been induced to sign it under the guise that the City of Yerington would become the county-seat and under no other consideration? Obviously, the relators have petitioned for one thing and are asking this court to mandamus the board to do another and different thing than that sought to be accomplished by the signers of the petition, which alone gives the board jurisdiction to act.
IV. It has been repeatedly held by this court that mandamus would issue to compel an inferior officer, board or tribunal to act, but never would be issued to direct them how to act or to compel them to act in any particular way. (Hardin v. Guthrie, 26 Nev. 225; State v. Wright, 4 Nev. 123; Hoole v. Kinkead, 16 Nev. 222; State v. Boerlin, 98 Pac. 402.) How then may this court direct the board to act, and how may it act without such direction? In other words, what date would or could this court fix for such election? And how could the board, not being directed to call an election, fix a date for the holding of such election? And what law enjoins upon them a duty to notice an election for a particular date, the time provided by law for the holding of such election having expired? Where the language is plain, clear and unambiguous, there is no room for construction■ or interpretation. (Brown v. Davis, 1 Nev. 409; Wall v. Blaisdell, 4 Nev. 241; Fitch v. Elko Co., 8 Nev. 271; Hess v. Commissioners, 6 Nev. 104; V. & T. R. R. Co. v. Lyon County, 6 Nev. 68; Lewis v. Dor on, 5 Nev. 400; Odd Fellows Bank v. Quillen, 11 Nev. 109; Sutherland, sec. 408.)
Per Curiam:
The question presented is whether the petition presented to the board of county commissioners of Lyon County is signed by a sufficient number of qualified taxpaying electors to require the calling of an election to determine whether the county-seat shall be moved.
Section 5007 of the Compiled Laws provides: "SectioN 1. Whenever three-fifths of the qualified electors of any county of this state, each elector being a taxpayer of said county, as appears by the last assessment roll, who have taken and subscribed to the oath or affirmation prescribed by law for the registration of electors in this state, shall petition the board of county commissioners of such county for the removal or location of the seat of justice of said county, the said county commissioners shall, within sixty days thereafter, cause an election to be held. The place receiving a majority of all the votes cast at such election shall be declared the county-seat."
Arid section 5010 provides: "Sec. 4. Every petition for the purpose mentioned in section one of this act shall be accompanied by the certificate of the registry agent of the district where the persons signing such petition reside, showing that all the persons whose names are signed to said petition are qualified electors of said county, as appears by the registry list of said district, or the affidavits on file in his office of persons not registered at the last general or special election, but who are qualified electors of said county."
It is admitted that the signers of the petition who were on the last assessment roll numbered less than three-fifths of the taxpaying electors whose names appear on both the registry list of the last general election, held in 1908, and on the registry list of the last special election, held in February, 1909; but the number of these petitioners is more than three-fifths of the taxpaying electors registered at the special election, and on behalf of the relators it is contended that this is sufficient, that the lists at the special election being the latest and only ones for the election of 1907 are the lists for that year, and control and supersede the lists of the general election held- in the previous fall. After a careful reading of the statute, we are not inclined to adopt this view, and we think the language quoted should be given a broader construction, as evidently intended by the legislature. It will be noticed that the language in section 1 of the act that "whenever three-fifths of the qualified electors, each elector being a taxpayer of said county, as appears by the last assessment roll, who have taken or subscribed to the oath or affirmation prescribed by law for the registration of electors in this state, shall petition" and section 4, do not make a limitation to the lists of a special election, nor does any other language in the statute. The construction for which relators contend would be equivalent to interpolating, after the words "last assessment roll," in section 1, or in section 4, "and as appears by the registry list of the last election, whether general or special." By a fair construction of the language in section 4, "as appears by the registry list of said district, or the affidavits on file in his office of persons not registered at the general or special election, but who are qualified electors" it was evidently intended to include the names appearing on the lists of both the general and special election and of persons making and filing the affidavit required for registration. The qualifications of a petitioner are that he be a taxpayer whose name appears on the last assessment roll, and that it be shown by the lists of the last general or special election or by affidavit 'that he is a qualified elector. We do not think the fact that he may have failed for any reason to register for a special election, as in effect claimed by relators, should disqualify him if he possesses the substantial qualifications and is a taxpayer and voter as indicated.
The question has been raised regarding the forty-two persons who appear on the roll as paying taxes only in a partnership capacity. Under the language and purpose of the statute their names should be included, for it provides for all taxpaying electors whose names appear on the last assessment roll, without any limitation as to whether they pay taxes individually or as partners. In either instance their names appear, and we see no good reason why one whose name appears as a member of a large merchandising, farming, stock-raising, or other business firm should not be considered and included as well as one who may be taxed only on a town lot valued at a trifling amount.
Extensive argument has been made regarding the right of twenty-one of the petitioners to withdraw their names and of thirteen of these to rescind their withdrawal and allow their names to stand on the original petition, and a number of cases have been cited sustaining sucli right; but it is not necessary for us to consider at length or determine this question, for, regardless of any such right of withdrawal or rescission, the petition lacks the support of the necessary three-fifths of the taxpaying electors appearing on the last assessment roll.
Application for the writ is denied.