State ex rel. Davies v. White

36 Nev. 334

• Court: Nevada Supreme Court
• Decided: October 15, 1913
• Docket: No. 2088
• Status: Published

Opinions

By the Court,

Norcross, J.:

This is an original proceeding, upon notice, for a peremptory writ of mandamus commanding respondents, as the City Council of the City of Reno, to submit a certain proposed ordinance designated Ordinance No. 184, to a vote of the electors of the said city of Reno, at a special election to be called for that purpose, in accordance with the initiative and referendum provisions of the act incorporating the city of Reno.

The character and purpose of the proposed ordinance sought to be submitted to the electorate of the city of Reno is sufficiently indicated by its title, which reads: "An ordinance directing the issue of a license or licenses to C. 0. Davies for the keeping or conducting of a restaurant on the island in the Truckee River known as ' Belle Isle, ’ with the privilege, in connection therewith, of selling, furnishing, • serving or otherwise disposing of wine, malt and spirituous liquors in sealed packages. ”

It is conceded that the petition for the submission of the ordinance is in due form and contains the requisite number of signatures of qualified electors to meet the requirements of the initiative and referendum provisions of the city charter, but it is the contention of respondents that, nevertheless, the writ ought not to issue, for the reason that the subject-matter of the proposed ordinance is not such a subject-matter as could be enacted into a valid ordinance, and for the further reason that the provisions of the city charter providing for the initiative and referendum of city ordinances are unconstitutional, for the reason that they were enacted prior to the adoption of the amendment to the state constitution relative to the initiative and the referendum.

As it is unnecessary to consider the constitutional question raised, the same will not be determined.

1. The proposition that a writ of mandate will not issue to compel respondents to submit to the electors of the city a proposed ordinance that would be void even if approved by a majority of the electors, is too clear for discussion or the citation of authorities.

It remains only to consider whether the proposed ordinance would be valid if enacted.

2,3. The proposed ordinance is special in character as it is designed to grant to a single individual a privilege in which the public at large has no interest or benefit.

By the provisions of section 10 of article 12 of the city charter, the city council is invested with power "to fix, impose and collect a license tax on, regulate, prescribe the location of, or suppress, * * * any and all places where intoxicating drinks are sold or given away.” (Stats. 1905, p. 121.)

It is admitted in this proceeding that general ordinances are in force in the city of Reno under the provisions of which the relator could have applied for a license such as is sought to be obtained through the enactment of the special ordinance under consideration, and that such application could be granted or refused by the city council.

It is a serious question whether the proposed ordinance is not directly violative of the city charter which invests a certain discretion in the city council in the matter of granting or refusing liquor licenses. If violative of the provisions of the charter, it would, for that reason, be void.

It is sufficient to hold the ordinance void upon the broad ground that it grants a special privilege to a single individual to conduct a private business of a character subject to general police regulations, and in which no public interest can be said to be subserved.

"A by-law will be held bad when it appears to have been passed not to subserve the interests of the corporation, that is, the public, but those of some private person or class of persons.” (McQuillin on Municipal Ordinances, sec. 39.)

The same author, in section 14, says: "The general requisites of a valid municipal ordinance, one legally binding upon all whom it is designed to operate, may be thus briefly summarized: * * * 3. It must relate to a subject within the scope of the corporation. 4. It must be in harmony with the constitution of the United States and the state, the laws of the United States, and the state, the municipal charter and general principles of the common law in force in the state. * * * 10. It must be enacted in good faith, in the public interest alone and designed to enable the corporation to perform its true functions as a local governmental organ.”

Numerous authorities supporting the text are cited by the author. See, also, Lewis v. Webb, 3 Me. 326; City of Richmond v. Dudley, 129 Ind. 112, 28 Am. St. Rep. 180.

The authorities cited by counsel for relator all go to the question of the right to the writ of mandamus, assuming that the proposed ordinance would be a valid municipal law if enacted. Neither in the brief nor in the oral argument of counsel for relator has there been an authority cited that would support the validity of the proposed ordinance. In view of the facts that the city attorney had advised the city council, in effect, that the proposed ordinance would be void if enacted, because it granted a special privilege, and that the city council had refused to submit the proposed ordinance to popular vote because of this reason, and that no serious attempt appears to have been made to controvert this contention, we are justified in assuming that counsel for relator were unable to find authority to the contrary.

4. Counsel for relator dwell upon the fact that the provisions of the charter relative to the initiative and referendum of city ordinances have been complied with, and, if we understand their position correctly, it is their contention that that is decisive of the case. But a so-called proposed ordinance in proper form, -that could never be an ordinance in substance, is not’a proposed ordinance any more than, an act of a legislature in violation of the constitution would be a statute. The initiative and referendum provisions of the city charter provide an additional method for the adoption of ordinances, but the fact that such method is pursued adds no additional validity to the ordinance. If the ordinance would be void if adopted by the city council, the infirmity would not be cured by its adoption by a vote of the electors of the city. (Long v. City of Portland, 53 Or. 92, 98 Pac. 1111; Brazell v. Ziegler, 26 Okl. 826, 110 Pac. 1052; Giddings v. Trustees, 133 Pac. 479.)

The writ prayed for is denied..

McCarran, J.: I concur.