Humboldt County v. County Commissioners

6 Nev. 30

Opinion

By the Court,

Lewis, C. J. :

The second section of an Act entitled “An Act to amend an Act of the Legislative Assembly of the Territory of Nevada, entitled An Act to create Counties and establish the Boundaries thereof,” (Statutes of 1869, p. 88) directs the county commissioners of Churchill County “ to set apart annually for five years the sum of three thousand dollars, out of revenues of said county, which sum shall be paid to Humboldt County each year until the sum of fifteen thousand dollars shall be paid.” It also provides that “on or before the first day of January in each year the auditor of Churchill County shall draw his warrant on the treasurer of Churchill County, in favor of the treasurer of Humboldt County, for the sum of three thousand dollars in coin, and the' treasurer of Churchill County shall pay such warrant on presentation, out of the moneys set apart for the purpose as provided by this section. The treasurer of Humboldt County shall place the same into the redemption fund of Humboldt County.”

By this law it was clearly made the duty of the commissioners to set apart the sum of three thousand dollars out of the treasury of Churchill County, for the benefit of Humboldt, prior to the first day of January, a. d. 1870. This was not done, and the latter county prays a writ ,of mandate to compel the performance of the duty thus enjoined.

It is not denied that so far as the language of the law is concerned, the setting apart of the money is unequivocally required; but several defenses are ■ interposed on the part of the commissioners of Churchill County, founded on matters outside of the language of the law itself, which it will be necessary to notice seri-atim. And first: it is argued the law does not conform to or rather is in conflict with section seventeen of article four of the State Constitution, which reads: “ Each law enacted by the Legislature shall embrace but one subject, and matter properly connected therewith, which subject shall be briefly expressed in the title,”-and is therefore void.

Whilst this section restricts the scope of each law to “ one subject, and matters properly connected therewith,” it is only necessary in the title to express the principal subject embodied in the law, while the matters properly connected therewith are not required to be mentioned.

I. Thus, the only question involved in the first point made by counsel is, whether the subject of the second section of the Act is properly connected with the matter mentioned in the title. The title of the Act is “An Act to amend an Act of the Legislative Assembly of the Territory of Nevada, entitled An Act to Create Counties and establish the Boundaries thereof.” The first section changes the old boundaries of Churchill County, extending them so as to include a portion of the county of Humboldt; then follows the second section above quoted. It does not perhaps distinctly appear from the Act itself that the-setting apart and payment of fifteen' thousand dollars by Churchill County to Humboldt is connected with the change of the boundaries of the former, but it is well known that when a new county is created from the territory belonging to another, it is usual to apportion the indebtedness, if there be any, of the old between it and the new. If in the law under consideration the Legislature had provided that Churchill County should assume and be required to pay the sum of fifteen thousand dollars of the indebtedness of Humboldt, there could be no doubt but that would be a matter properly connected with the subject mentioned in the title, for an apportionment of the indebtedness would be a matter necessarily growing out of and induced by the extension of the boundaries of Churchill County. If, instead of thus apportioning the indebtedness in express terms, it be provided that a gross sum shall be paid by one county to another, in lieu of assuming indebtedness, is it less a matter connected with the change of boundaries of old or creation of new counties ? Certainly not. Suppose this Act should declare that in consideration of territory taken from Humboldt and transferred to Churchill, the latter should pay a sum of money in installments; it certainly would not be claimed 'to be a matter foreign to the subject mentioned in the title, if, as is the case here, the Act did change the boundaries of counties. True, this is not expressed in the law; but we judicially know that a change is effected in the boundaries of Churchill County, by the first section depriving Humboldt of a portion of its territory. Can it not, then, be presumed that the payment was induced by such transfer of territory from one county to another ? Nay, is it not quite evident that that was the moving cause for it ? It is certainly sáfe to say that it is not clear that it was not; and in such case the law must be upheld, upon the rule that no Act will be annulled unless it be clearly in conflict with the Constitution.

Can it be said that the setting apart of the money mentioned in the second section of the Act in question is not connected with the changing of the boundaries of the two counties, Humboldt and Churchill ? We think not; and hence must sustain the law and hold the first ground taken by counsel untenable.

II. Is it shown that the setting aside of the sum of three thousand dollars out of the revenues of the year 1869 impairs the obligation of contracts ? If so, the law must undoubtedly be held inoperative. But clearly that result is not shown in this case. It might be that the appropriation of the sum here specified might interfere with and postpone the payment of warrants drawn upon the treasury of Churchill County, and registered at the time of the passage of the law. In that event, the law might be held an unwarrantable interference with the obligation of contracts; as in the case of Lafarge v. Magee, 6 Cal. 650. Here, however, the answer shows no such state of facts as will bring it within the rule there laid down. It is not alleged, nor in any way shown, that there were any warrants outstanding against the treasury at the time of the passage of the Act, which would be delayed in payment by reason of the appropriation required to be set apart for payment to Humboldt County. It is simply presented in the answer in this wise: “ Respondent denies that at the time of the making of the alleged demand, to wit, on the-day of February, A.D. 1870, or at any time prior or subsequent thereto', or at the time, there was, has been, or now is, the sum of three thousand dollars, or any other sum, derived from the revenues of Churchill County for the fiscal year ending the thirty-first day of December, A.D. 1869, or from any other source, for any other time, in the county treasury of Churchill County, over and above the sums specifically appropriated to pay the salaries of the county officers of Churchill County, and claims audited and allowed long prior to the passage of the Act hereinbefore mentioned, on the twenty-seventh of February, A.D. 1869.” Here is an averment showing no impairing of the obligation of contracts. The auditing and allowing of a claim gives the holder no lien upon or right to any money in the treasury, or which may come into it. It is the order or warrant of the auditor which gives that right; no claim against a county being allowed to be paid except upon such order or warrant, and the law declaring that warrants shall be paid in the order of their presentation and registration. But no where in the answer is it alleged or shown that the payment of any warrant or order would be delayed or deferred by reason of the appropriation made by this law. And it is quite probable no creditor acquires any vested right until the money has actually come into the treasury, and thereby become subject to the payment of his order. However, should it be admitted that the holders of such claims against the county become vested with any rights to money in or to come into the treasury, still, even that would be of no avail here, for it is not charged or in any wise made to appear that there is not a surplus of three thousand dollars after the payment of all such claims; the form of the denial in the answer being, that there is not that sum of money in the treasury “ over and above the sums specifically appropriated to pay the salaries of the county officers of Churchill County, and claims audited and allowed ” prior to the passage of the Act. Now we have been unable to find any law making the setting apart of this three thousand dollars dependent upon prior payment of the county officers. The commissioners are absolutely required to set the money aside for the benefit of Humboldt County. The sum of three thousand dollars is unconditionally required to be set apart. It is in no way made subject to the payment of the salaries of county officers. Of course, the payment of all salaries accruing subsequent to the passage of the law must be deferred, and made subject to the appropriation under this law. Nothing is clearer than that the payment of all ordinary claims against a county is subject to any specific appropriation and setting apart of the revenues of the county for any designated purpose, unless such appropriation interfere with some prior vested right to the revenues or money in the treasury. It certainly cannot be claimed that the county officers of Churchill had any vested right to its revenues for salaries at the time this Act was adopted, for salaries subsequently to accrue. The Legislature undoubtedly has the power to direct that certain claims against the county shall have a preference over all others which are not so situated as to give the holder a vested right to money in or to come into the treasury at the time of legislative action. It is not shown that the county officers had any such vested right to the money required by this law to be set aside on the twenty-seventh day of February, when the Act in question was adopted. The appropriation and setting apart of the three thousand dollars to be paid to Humboldt was not therefore subject to the payment of the county officers, and, non constat, that there is not the sum of three thousand dollars in the treasury in excess of that which may be required to pay’all claims against the county except their salaries. If, then, sufficient money was realized from the revenues over such as might be required to pay such vested demands as might be existing against the county when the Act of the Legislature was adopted, there is no force in this objection. The affidavit upon which the alternative writ was issued avers, that of the revenue of said county of Churchill for the fiscal year ending December 31st, A.D. 1869, there was a sufficient sum paid into the treasury of Churchill County, over and above all sums otherwise specifically appropriated, to pay the claim and demand of Humboldt County. All revenues not so specifically appropriated being subject to the appropriation made by this Act, the averment was clearly all that could be required. It is in effect an averment that there was three thousand dollars in the treasury subject to the appropriation made by the Legislature.

III. The commissioners have no discretion respecting the duties imposed by the law. They are unqualifiedly and unconditionally required to do a specific act, to appropriate three thousand dollars for a designated purpose. In such case, undoubtedly, the writ may and should command the performance of such duty as required by law. Where any discretion is to be exercised by an officer as to the manner in which an act may be done, or rather when the thing desired to be done depends upon the judgment of the officer, in such case the writ will not control his discretion, but only command him to act, without in any way interfering with the manner of his action. When, however, as in this case, a specific act is absolutely required to be done, with no discretion given to the person or persons required to do it, the writ may command the doing of the very act itself. (24 N. Y. 121.)

IV. Was a demand upon the commissioners of Churchill County to set apart the money necessary to be made before the writ could properly issue ? Clearly not. The duty imposed upon them is clear and specific. When they failed to perform it as required, the relator became entitled to the writ. There are cases, it is true, where a demand may be indispensable. If, for example, the performance of the duty sought to be enforced is of a character that could not be expected to be performed until demanded, the writ should not isssue until demand made. Such are the cases re ferred to from California. In a case of this kind, however, where the law unconditionally requires of public officers the doing of a specific act, it is held that no demand is necessary. (Commonwealth ex rel. Middleton v. The Commissioners of Alleghany County, 37 Penn. State R. 237.)

V. Nor do we see how an ordinary action at law will afford the •relator the full, speedy and adequate remedy to which it is entitled. This is the only plain, speedy and adequate remedy known to us whereby the Commissioners can be compelled to perform the duty imposed upon them, and in similar cases it has been held the proper remedy.

VI. No Court has the right to annul or set aside a law, except upon constitutional grounds. (See Gibson v. The Board of County Commissioners of Ormshy County, 5 Nev. 283.) Hence, any misunderstanding between members of the Legislature respecting its adoption, or even fraud in procuring its passage, cannot be inquired into by the Courts. So far as the Courts are concerned, the statute must be taken as expressing the free will and wish of the Legislature, whatever may have been the means employed to secure its adoption, and irrespective of any agreements or understanding had between members. Such matters the Courts have no power of reaching.

The peremptory writ must issue in accordance with the prayer of the relator.

JOHNSON, J., did not participate in the foregoing decision.