Gay v. District Court of the Tenth Judicial District

171 P. 156, 41 Nev. 330

• Court: Nevada Supreme Court
• Decided: January 15, 1918
• Docket: No. 2317
• Status: Published

Opinions

By the Court,

Coleman, J.:

This is an original proceeding in certiorari to inquire into the jurisdiction of the Tenth judicial district court of the State of Nevada to enter a judgment removing the petitioner, Sam Gay, as sheriff of Clark County, Nevada, from office.

A complaint was filed in the district court of said county, wherein it was alleged that the defendant, Sam Gay, as sheriff, was guilty of nonfeasance in office, in that he neglected and refused to arrest one Joe Keate, his deputy, while the latter was making an assault with a pistol upon W. H. Harkins, a justice of the peace, in the presence of the defendant. Upon the filing of the complaint citation was issued and served upon the defendant. Defendant did not demur to the complaint, or in any way question the jurisdiction of the court, but filed an answer denying certain of the allegations of the complaint. The matter was heard upon the issue thus raised, and the court found the allegations of the complaint to be true and entered judgment removing the defendant from office.

The constitution of Nevada, as do the constitutions of the various states, divides the powers of the state into three branches, and provides that the judicial power of the state shall be'vested in a supreme court, district courts, and in justices of the peace, and authorizes the legislature to establish municipal courts. Section 6, art. 6, of the constitution, provides that the district courts shall have jurisdiction in certain cases, but does not say that they shall have jurisdiction in proceedings for the removal of any public officer; hence council for petitioner contend that the district court had no jurisdiction to hear and determine the charges filed with said court and to make the order for the removal of the petitioner from office.

1. Without determining as to the scope and effect of section 6, article 6, of the constitution, but conceding for the sake of this matter that the district court acquired no jurisdiction under the section of the constitution mentioned, we are nevertheless of the opinion that the court had jurisdiction to hear and determine the matter presented in the complaint filed in the district court charging the petitioner with nonfeasance in office. From time immemorial society has found it necessary to make some provision for the removal of venal, corrupt, faithless, and negligent public officers. The importance of this was realized when the constitution of the United States was drafted, and this policy has been carried into the constitution of every, state in the union. The impeachment of all of the state and judicial officers of Nevada, except justices of the peace, is provided for in article 7 of the constitution; and while no procedure is prescribed in the constitution for the removal of other officials, section 4 of article 7 reads:

“Provision shall be made by law for the removal from office of any civil officer other than those in this article previously specified, for malfeasance, or nonfeasance in the performance of his duty.”

It was pursuant to this provision of the constitution that the legislature passed “An act providing for the removal from office of public officers for malfeasance or nonfeasance in office, regulating the mode of procedure, and other matters properly connected therewith.” (Stats. 1909, p. 293; Rev. Laws, 2851, 2852.)

Sections 21 and 22 of the act read:

“Sec. 21. If any person now holding or who shall hereafter hold any office in this state, 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 may also be removed therefrom as hereinafter prescribed.

“Sec. 22. Whenever any complaint in writing duly verified by the oath of any complainant, shall be presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused of neglected to perform the official duties pertaining to his office as prescribed by law, or has been guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the party charged to appear before him on a certain day, not more than ten nor less than five days from the time when said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence offered by the party complained of, and if, on such hearing, it shall appear that the charge or. charges of said complaint are sustained, the court shall enter a decree that said party complained of shall be deprived of his office, and shall enter a judgment for five hundred dollars in favor of the complainant and such costs as are allowed in civil cases.”

The constitutional convention, in adopting section 4 of article 7 of the constitution, realized, no doubt, that to confer upon legislative bodies the duty of impeaching, trying, and removing district, county, township, and municipal officers would be to place an undue burden upon the legislature, and furthermore might, in some instances, unreasonably delay the removal of vicious officials, and in many cases would afford no relief whatever, in view of the fact that a majority of the officers contemplated by section 4, article 7, of the constitution, are elected for only two years, and since the legislature convenes during the month in which the public officers referred to take office, and adjourns at the end.of sixty days, not to reconvene until after the term of all county officers shall have expired, and therefore conferred plenary power upon the legislature to provide a special and summary proceeding for the removal of certain officers. (State v. Borstacl, 27 N. D. 533, 147 N. W. 380, Ann. Cas. 1916b, 1014; State v. District Court, 53 Mont. 350, 165 Pac. 294.)

Numerous objections are made to the act under which the proceedings in the district court were had, but, as we view the authority conferred by the section of the constitution mentioned, they may be all brushed aside, save and except such objections only as go to the title of the act. We say this for the reason that the power of the legislature is plenary so far as providing for the method of procedure is concerned. We do not think there is any authority which questions this view. The Supreme Court of California, in Re Marks, 45 Cal. 199, had under consideration a statute substantially the same as ours, and one which was enacted pursuant to a constitutional provision to all intents and purposes the same as ours. The court in that case said:

“The act of 1853 does provide how, in what manner, upon what procedure, in what court, officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the legislature to enact such a statute (under the latter clause of section 18) is plain — as obvious as is the power of the assembly to prefer and that of the senate to try articles of impeachment under the first clause of the same section. The power to remove certain officers for misdemeanor in office is- exercised only by the assembly and senate under the name of impeachment — the like power to remove all other officers under like circumstances and for like causes is to be exercised in such manner as the legislature may provide.’ (Section 19.) The power to provide the manner in which a delinquent is to be tried in the second case is on a footing with the power to directly remove the delinquent by the judgment of the senate in the first case.”

In a comparatively recent case, in an opinion by Beatty, C. J., and concurred in by the full court, the Supreme Court of California said:

“This is a summary proceeding regulated, as far as it is regulated at all, by a statute (Pen. Code, sec. 758, et seq.) which the legislature has plenary power to pass under the authority of section 18 of article 4 of the constitution, providing for the trial of public officers for misdemeanor in office otherwise than by impeachment. It is exempt from merely technical rules of procedure. (Case of Burleigh, 145 Cal. 36, 78 Pac. 242.)” (In Re Shepard, 161 Cal. 171, 118 Pac. 513.)

The Supreme Court of Minnesota, in considering the authority of the legislature under a similar constitutional provision in the case of State v. Peterson, 50 Minn. 239, 52 N. W. 655, expressed the following views:

“Article 13 of the constitution, after providing in section 1 for ‘the removal of state officers and judges of the supreme and district courts by impeachment,’ then provides in section 2 that ‘the legislature of the state may provide for the removal of inferior officers from office for malfeasance or nonfeasance in the performance of their duties.’ The power thus conferred is plenary, and confers authority upon the legislature to vest the power of removal, and the determination of the question whether cause for removal exists, in any department of the government, or in any officer or official body, it may deem expedient. There is no requirement that this power shall be conferred only on the courts. Indeed, the very purpose of this provision was to provide a more summary and less cumbersome method of removing inferior officers than by impeachment or by indictment, according to the course of the common law, for malfeasance or nonfeasance in office. If, then, the power of removal vested in the governor by this act be judicial, we have here the constitutional authority for it.”

The Supreme Court of Montana, in State ex rel. Payne v. District Court, 53 Mont. 350, 165 Pac. 296, in speaking of the authority conferred by a section of the constitution of that state similar to section 4, article 7, of our constitution, used the following language:

“Proceedings for the removal of a public officer do not necessarily partake of the nature of a criminal prosecution. Indeed, the power to remove an unfaithful or negligent public official is not essentially a judicial power. Under our constitution, its exercise is left to the legislature itself or to such other authority as the legislature may designate. This is the plain import of section 18, above, and is the general rule in the absence of any constitutional declaration upon the subject. (29 Cyc. 1370; State v. Doherty, 25 La. Ann. 119, 13 Am. Rep. 131; Territory v. Cox, 6 Dak. 501.) The power may be conferred upon the governor (Cameron v. Parker, 2 Okl. 277, 38 Pac. 14), or upon a board (Donohue v. Will Co., 110 Ill. 94). It may be conferred upon a court of general or limited jurisdiction to be exercised in the mode provided by law, and consequently, if the legislature sees fit to require a jury trial, a jury trial must be had; but, if it sees fit to provide for a summary hearing without a jury, no constitutional right of the accused is infringed.”

In State v. Grant 14 Wyo. 41, 81 Pac. 798, 1 L. R. A. n. s. 588, 116 Am. St. Rep. 982, the Supreme Court of Wyoming, in passing upon the power of the legislature under a similar constitutional provision, said:

“The legislature, however, under the provisions of section 19, article 3, of the constitution, did have express warrant for the passage of an act for the removal of officers not subject to impeachment, and the method of procedure in effecting such removal is not limited by any other constitutional provision. (Attorney-General v. Jochim, 99 Mich. 358, 58 N. W. 611, L. R. A. 699, 41 Am. St. Rep. 606.)”

In Skeen v. Paine, 32 Utah, 295, 90 Pac. 440, it is said:

“Section 21, article 6, of the constitution, among other things, provides that such removals may be made ‘in such manner as may be provided by law.’ Here a plenary power is conferred upon the legislature. This provision of the constitution is special, and the mere fact that in another part of the same instrument (sec. 18, art. 8) it is provided that prosecutions shall be in the name of ‘The State of Utah’ does not necessarily prevent a proceeding civil in its consequences from being conducted in the name of a private person.”

The Supreme Court of Michigan, in People ex rel. Clay v. Stuart, 74 Mich. 411, 41 N. W. 1091, 16 Am. St. Rep. 644, in passing upon a similar constitutional provision, observed:

“It will be noticed that the power conferred by this section of the constitution is plenary. The legislature is to provide by law for the removal of county officers, etc., in such manner as to them shall seem just and proper. The power conferred is in its nature political, and has reference exclusively to the polity of government, which would be inherently defective if no remedy of a summary nature could be had to remove from office a person who, after his election, had been convicted of crime, or who neglected his duty, or who was guilty of malversation in the administration of his office. Every person elected to a county, township, or school district office holds it subject to removal, in the manner provided by law under this section of the constitution, which commits to the legislature the whole subject of removal. They are to prescribe the mode in which it shall be done, and this includes everything necessary for the accomplishment of the object. The causes, the charges, the notice, the investigation, and the determination, and by whom these shall be conducted and the removal adjudgéd, are all in the discretion of the legislature.”

In State v. Henderson, 145 Iowa, 657, 124 N. W. 767, Ann. Cas. 1912a, 1286, in passing upon a case growing out of constitutional and statutory provisions similar to ours, we find the following:

“Section 5 of the act under which this proceeding is prosecuted expressly provides that the ‘proceeding shall be summary in its nature and triable as an equitable action.’ We think, therefore,’that no constitutional right of the defendant was invaded.”'

See, also, Moore v. Strickling, 46 W. Va. 515, 33 S. E. 274, 50 L. R. A. 279; Woods v. Varnum, 85 Cal. 639, 24 ; People v. Stuart, 74 Mich. 411, 41 N. W. 1093, 16 Am. St. Rep. 644; State v. Seawell, 64 Ala. 225; State v. Savage, 89 Ala. 1, 7 South. 7, 7 L. R. A. 426.

2. In this connection we incidentally call attention to section 1, article 3, of our constitution, which reads:

“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 persons 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.”

Thus we see that the constitutional convention made it plain that other powers than 'those expressly mentioned in section 6, article 6,- of the constitution, might be delegated to the district court.

The language of Norcross J., in Bell v. District Court, 28 Nev. 280, 81 Pac. 875, 1 L. R. A. n. s. 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982, is not opposed to the view we have expressed. What was said in that case was directed to an entirely different question from the one here presented, as will be readily seen from a reading of the opinion.

3. But it is urged, and with apparent earnestness, that the complaint in removal proceedings in the district court charged the defendant with a crime, and that he was entitled to a jury trial under that section of the constitution which provides that the right of trial by jury shall remain inviolate forever. We think we have disposed of this question by showing that the legislature had plenary power under the terms of the constitution to pass an act authorizing the removal of officers, and pursuant to that authority had passed a law which provided a summary and special proceeding for such cases. In this connection we wish to say that the case of Kilburn v. Law, 111 Cal. 237, 43 Pac. 615, is not in conflict with this view; for, while it is true that the court in that case, as in other cases, held that the proceeding to remove a public officer was criminal in its nature, the court said: “The intent to make it a criniinal prosecution is to my mind clear.” The opinion then proceeds to give the reasons which induced the court to take that view, and it is apparent that its conclusion was reached because it was the evident intent of the legislature that the proceeding should be criminal in its nature, and not because the constitution contemplated a proceeding inherently criminal in its character. In fact, strange as it may seem, the reply brief of the petitioner practically concedes as much; for, in answering the contention of respondent on this point, wherein it was sought to show why different proceedings had existed in California in removal cases, counsel say:

“The case — In Re Marks, 45 Cal. 199 — is relied upon by respondent, but it will be noted that the opinion in that case was prior to the adoption of the codes and was had under a provision of law which ceased to exist upon the adoption of the codes.”

But the Supreme Court of California has held that though the proceeding is criminal in nature, under certain statutes, the defendant was not entitled to a jury. (People v. McKamy, 168 Cal. 533, 143 Pac. 752.)

4. The contention that the proceeding should have been instituted in the name of the State of Nevada is entirely without merit. As we have shown, the inquiry was had under a special proceeding, provided pursuant to plenary power conferred by the constitution. Even in California, after the adoption of the codes, and under statutes which the supreme court of that state held showed a clear intent upon the part of the legislature to make the proceedings criminal in their nature, it was decided that the accusation did not have to be made in the name of the people. (Woods v. Varnum, 85 Cal. 639, 24 Pac. 843.)

5. Objection is made to that part of the act which provides that the court in making the order of removal shall enter a judgment in favor of the complainant for $500. The complainant and the defendant in the removal proceedings expressly agreed that this requirement of the statute might be waived, and accordingly no such judgment was rendered by the court; hence we are of the opinion that it is not necessary that we determine this question, as it is a well-established rule of law that no one can urge that an act or part of an act is unconstitutional if his rights are in no way infringed by it. (6 R. C. L. p. 89; 8 Cyc. 789.)

6. The objection made to the title of the act of 1909 is without merit. The title of the act relates to one subject only, and that is to the removal of public officers. It is true that the act deals with three methods of removal —one by accusation made by the grand jury, one by impeachment by the assembly, and one by accusation by a private citizen. That part of the act relating to impeachment by the assembly prescribes the method of procedure to be followed in the trial by the senate. The act also provides for the summary method by accusation of a private individual, and makes provision for the proceedings after the accusation is filed. And, apparently realizing that individuals are reluctant to file charges against a public official as the basis for his removal, the legislature also made provision for the initiation of proceedings for the removal of a public officer by accusation on the part of the grand jury. In other words, this act not only supplements the constitutional provisions for the removal of state officials, but creates two separate, distinct, and independent methods of removal of county officers. Just why the legislature thought it necessary to create two methods of removal of county officials is not clear, but since one method is more drastic than the other, it may be that the legislature anticipated that there might be occasions when a drastic measure would be.needed; but whatever the reason, or lack of reason, the statute, which was enacted pursuant to plenary authority by clear and unmistakable language, creates the two methods, and beyond that we cannot inquire.

For the reasons given, it is ordered that the writ of certiorari heretofore issued be, and the same is hereby, dismissed.