OPINION
By the Court,
Batjer, J.:
Appellants own the only Chrysler-Plymouth retail automobile dealership in Clark County, Nevada. On June 8, 1977, respondent notified appellants of its intention to establish another dealership in Clark County; the proposed dealership to
be located several miles from appellants’ place of business. On August 1, 1977, appellants filed suit in district court seeking, among other things, to enjoin the establishment of the second dealership.
Pursuant to Chapter 295, 1977 Statutes of Nevada,
see
specifically NRS 482.36365 and 482.36415(1), when the existing dealer files for injunctive relief, the director of the Department of Motor Vehicles cannot issue a license for the additional dealership until the court determines if there is “good cause” for the establishment of that dealership.
In its motion for partial summary judgment, respondent argued, relying upon a number of different theories, that this legislation was unconstitutional. The district court agreed, granted the motion and certified the issue pursuant to NRCP 54(b).
This appeal followed.
During oral argument this court queried whether the statutory scheme was in violation of the separation of powers principle enumerated in Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution.
Further briefing was ordered on this issue.
Although we have on occasion declined to review constitutional issues not raised below,
e.g.,
Munoz v. State ex rel. Dep’t of Highways, 92 Nev. 441, 444, 552 P.2d 42, 43-44 (1976), we have done so not because of any jurisdictional limitation, but merely as a matter of practice.
See
Krause v. Sacramento Inn, 479 F.2d 988, 989 (9th Cir. 1973). Relaxation of this rule is occasionally appropriate.
Cf.
Krause v. Sacramento Inn,
supra;
Staton v. Mayes, 552 F.2d 908, 915 (10th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir. 1970); Ruth v. Indus. Comm’n, 490 P.2d 828 (Ariz. 1971); VanSickle v. Shanahan, 511 P.2d 223, 231 (Kan. 1973); Shavers v. Kelley, 267 N.W.2d 72, 84-85, n. 14 (Mich. 1978); Laufenberg v. Cosmetology Exam. Bd., 274 N.W.2d 618, 624 (Wisc. 1979). Furthermore, an appellate court may
sua sponte
raise a constitutional issue for the first time. Mountain States Tel. & Tel. Co. v. Animas Mosquito Control Dist., 380 P.2d 560 (Colo. 1963). In the case at hand it is appropriate for this court to raise the separation of powers issue; since the statutes were assailed on constitutional grounds, it would be paradoxical for us to uphold the statutes on the grounds raised by the parties, yet ignore a clear violation of the separation of powers doctrine.
In Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967), we held that a statute which delegated to the district courts the obligation of certifying licensed or ordained ministers to perform marriages was unconstitutional because the legislation imposed on the judiciary an administrative duty (licensing) which was not related to a judicial function.
See also
Cromwell v. Jackson, 52 A.2d 79 (Md. 1947). Although the licensing function of the court was more conspicuous in the
Galloway
statutory scheme than it is here, the statutes herein involved nonetheless require the district courts to determine if a license should issue. Since the director of the Department of Motor Vehicles cannot license the new dealership until the district court has ascertained if “good cause” mandates the additional dealer, the court is in reality the licensing entity. Under this scheme the court is performing a pre-licensing fact-finding function rather than resolving an actual case or controversy. The Legislature cannot, using the guise of permitting a party to seek “injunctive relief”, require the courts to perform such a non-judicial function.
In determining if good cause exists for the establishment of the additional dealership, the statutes mandate that the district court consider whether the additional dealership would be in the public interest. NRS 482.36365(4). Here the determination of “public interest” should not have been delegated to the courts. They are not equipped to independently investigate the facts in order to assure that the general public is protected. Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432 (Tex. 1963).
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OPINION
By the Court,
Batjer, J.:
Appellants own the only Chrysler-Plymouth retail automobile dealership in Clark County, Nevada. On June 8, 1977, respondent notified appellants of its intention to establish another dealership in Clark County; the proposed dealership to
be located several miles from appellants’ place of business. On August 1, 1977, appellants filed suit in district court seeking, among other things, to enjoin the establishment of the second dealership.
Pursuant to Chapter 295, 1977 Statutes of Nevada,
see
specifically NRS 482.36365 and 482.36415(1), when the existing dealer files for injunctive relief, the director of the Department of Motor Vehicles cannot issue a license for the additional dealership until the court determines if there is “good cause” for the establishment of that dealership.
In its motion for partial summary judgment, respondent argued, relying upon a number of different theories, that this legislation was unconstitutional. The district court agreed, granted the motion and certified the issue pursuant to NRCP 54(b).
This appeal followed.
During oral argument this court queried whether the statutory scheme was in violation of the separation of powers principle enumerated in Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution.
Further briefing was ordered on this issue.
Although we have on occasion declined to review constitutional issues not raised below,
e.g.,
Munoz v. State ex rel. Dep’t of Highways, 92 Nev. 441, 444, 552 P.2d 42, 43-44 (1976), we have done so not because of any jurisdictional limitation, but merely as a matter of practice.
See
Krause v. Sacramento Inn, 479 F.2d 988, 989 (9th Cir. 1973). Relaxation of this rule is occasionally appropriate.
Cf.
Krause v. Sacramento Inn,
supra;
Staton v. Mayes, 552 F.2d 908, 915 (10th Cir. 1977); Gomes v. Williams, 420 F.2d 1364, 1367 (10th Cir. 1970); Ruth v. Indus. Comm’n, 490 P.2d 828 (Ariz. 1971); VanSickle v. Shanahan, 511 P.2d 223, 231 (Kan. 1973); Shavers v. Kelley, 267 N.W.2d 72, 84-85, n. 14 (Mich. 1978); Laufenberg v. Cosmetology Exam. Bd., 274 N.W.2d 618, 624 (Wisc. 1979). Furthermore, an appellate court may
sua sponte
raise a constitutional issue for the first time. Mountain States Tel. & Tel. Co. v. Animas Mosquito Control Dist., 380 P.2d 560 (Colo. 1963). In the case at hand it is appropriate for this court to raise the separation of powers issue; since the statutes were assailed on constitutional grounds, it would be paradoxical for us to uphold the statutes on the grounds raised by the parties, yet ignore a clear violation of the separation of powers doctrine.
In Galloway v. Truesdell, 83 Nev. 13, 422 P.2d 237 (1967), we held that a statute which delegated to the district courts the obligation of certifying licensed or ordained ministers to perform marriages was unconstitutional because the legislation imposed on the judiciary an administrative duty (licensing) which was not related to a judicial function.
See also
Cromwell v. Jackson, 52 A.2d 79 (Md. 1947). Although the licensing function of the court was more conspicuous in the
Galloway
statutory scheme than it is here, the statutes herein involved nonetheless require the district courts to determine if a license should issue. Since the director of the Department of Motor Vehicles cannot license the new dealership until the district court has ascertained if “good cause” mandates the additional dealer, the court is in reality the licensing entity. Under this scheme the court is performing a pre-licensing fact-finding function rather than resolving an actual case or controversy. The Legislature cannot, using the guise of permitting a party to seek “injunctive relief”, require the courts to perform such a non-judicial function.
In determining if good cause exists for the establishment of the additional dealership, the statutes mandate that the district court consider whether the additional dealership would be in the public interest. NRS 482.36365(4). Here the determination of “public interest” should not have been delegated to the courts. They are not equipped to independently investigate the facts in order to assure that the general public is protected. Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427, 432 (Tex. 1963).
Other states have enacted legislation dealing with the establishment of new automobile franchises. In most of those states the legislatures assigned the task of administering the legislation to an administrative board or agency.
In others the legis
latures enacted legislation which made the arbitrary or unfair establishment of additional dealerships unlawful.
The Nevada statutes do not contain similar provisions. In testimony before the Senate Committee on Commerce and Labor the executive director of the Nevada Franchised Automobile Dealers Association explained to the Committee that the reason the courts, rather than the Department of Motor Vehicles, were being obligated to administer this legislation was because the director of that agency objected to the additional workload. Such a reason is hardly justification for imposing an unconstitutional function on the courts. For the reasons stated in Galloway v. Truesdell,
supra,
we find that sections 11, 12, 20 and 21 of Chapter 295, 1977 Statutes of Nevada,
see
NRS 482.3636, 482.36365, 482.36415 and 482.3642 are unconstitutional because they are in violation of Article 3, Section 1, and Article 6, Section 6, of the Nevada Constitution.
We now must determine if the remaining sections of Chapter 295 are severable from the parts herein held invalid. Despite the wording of NRS 0.020,
which is the general severability clause, it is a function of this court to consider whether the remainder of the statute can stand independently and whether the Legislature would have intended it to do so. County of Clark v. City of Las Vegas, 92 Nev. 323, 335-337, 550 P.2d 779, 787-788 (1976). In this case it is clear that the legislation is separable and that the Legislature would have intended severance. The remaining sections of Chapter 295 define unfair business practices and provide for civil penalties when these laws are violated.
See
NRS 482.36425. Such legislation is divisible from that which imposes a licensing function on the district court. Furthermore, since it was the intent of the Legislature to enact a law that regulated motor vehicle franchises, it must be presumed that the Legislature would have intended that the
remaining portion of the act be severable from the invalid provisions.
See
NRS 482.318.
Anthony v. State, 94 Nev. 337, 580 P.2d 939 (1978).
Because of our determination here we need not consider the constitutional issues raised by the parties.
Affirmed on other grounds.
Mowbray, C. J., and Thompson, Gunderson, and Manoukian, JJ., concur.
“The legislature finds and declares that the distribution and sale of motor vehicles in the State of Nevada vitally affects the general economy of the state and the public interest and the public welfare, and in the exercise of its police power, it is necessary to regulate and to license motor vehicle manufacturers, distributors, new and used vehicle dealers, rebuilders, leasing companies, salesmen, and their representatives doing business in the State of Nevada in order to prevent frauds, impositions and other abuse upon its citizens.”