State ex rel. Hess v. County Commissioners

By the Court, WHITMAN, J.: This is an appeal from the judgment of the Third District Court dismissing a writ of certiorari, in the matter of the ordering a special election by the board of commissioners of Washoe County to decide the question of removal of the county seat of said county. Although the judgment of dismissal was perhaps not strictly regular, still it practically amounted to a judgment of affirmance of the ¿ction of the county commissioners, and so will be considered. The numerous objections made to such action will not be reviewed in detail, as the one upon which this decision will be rested is in itself vital. The commissioners acted under the statute of this State entitled “ An Act providing for the removal of county seats and the permanent location of the same,” as follows : Section 1. “ When any number of legal voters of any county in this State equal to three-fifths of the whole number of votes cast at the last general election in said county shall petition the board of .county commissioners of such county for the removal or location of the seat of justice, the county commissioners shall within fifty days thereafter cause an election to be held at the various places of voting in said county, said commissioners giving thirty days notice [107] in some newspaper published in the county, or by posting written or printed notices at the several voting precincts in the county. Such notice shall state the time and' place of holding and the purposes for which such election is held. And any.election provided for in this Act may be held on the day of any general election for either State or county officers in such county. The place receiving a majority of all the votes cast at such election shall be declared the county seat. * * * * * * * Sec. 4. “ The election provided for in this Act shall be conducted in all respects as provided for by the general election laws of this State.” (Stats. 1867, 78.) / The order for the election was made upon the fifth day of April, 1870, calling the election upon the fourteenth day of June following, a space of seventy days. The commissioners had the power upon the establishment of the fact that three-fifths of the legal voters of the county so petitioned, to order an election to decide the matter of the removal of the county seat from one point and its location at another; but such election they must cause to be held within fifty days from the establishment of such fact, and in time to afford thirty days notice of the election. The right to order being thus circumscribed, the board could only so proceed, unless as is suggested, the time prescribed was simply in the nature of a direction and not a mandate. As has been frequently decided by this Court, when the language of a statute is plain, its intention must be deduced from such language, and the Court has no right to go beyond it. (Virginia and Truckee Railroad Co. v. County Commissioners of Lyon County, ante, p. 68.) So here, the commissioners within fifty days thereafter shall cause an election to be held.” It would be straining the meaning of words to say that the natural, ordinary interpretation of such language was that sometime within fifty days the commissioners should order an election to be held at any future time their discretion or caprice might dictate ; and yet this is the conclusion urged by counsel for defendants, in substance: he claims that jurisdiction once acquired by the presentation of the petition, the subsequent order in the case at bar was what the statute contemplated, or at most an irregularity. [108] The first, it has been attempted to be shown, it is not under the proper rule of construction ; and the latter it cannot be; it is either right, or else an excess of jurisdiction; for a board of commissioners, being of special and limited powers, must always exercise their powers as prescribed, where such prescription is material. When the Legislature has said to this board of special limited powers, you shall cause an election to be held within a certain time, who shall say that the matter of time is immaterial ? The intention may have been to protect the petitioners; for if the construction urged be adopted, the board could place the election at such a distance of time as to render the order a practical nullity; and there would then be no redress, as that would be simply an error under the regular pursuit of authority, not subject to review by this or any other Court; or the intention may have been something other, or for multiple purposes; but there stands the plain language, and it should not be frittered away. It is said that under such construction the Act referred to is a nullity, as the election law prescribes.registry as a prerequisite to voting, and the registry law in all cases of special election allows forty days for registering, and ten days thereafter for objections to be heard and determined, and registry copies for officers of election to be made; so that fifty full days must elapse from the opening of the registry to the day of election, thus rendering it an impossibility to cause an election to be held within fifty days, as prescribed by the statute quoted. This would seem, unfortunately, to be the fact, and such result would be avoided by this Court if possible ; but the law is too clear and plain for such avoidance, and the consequence is simply another illustration of. the evil of too much legislation. When the Act quoted was passed, the Registry Act only required the books to be kept open ten days prior to any special election, such as the one in question. (Statutes of 1866, 83.) So there was coherence between the two statutes; but in 1869, the Act last cited was repealed, and the provision made that registration might be made “ for forty days prior to closing the register (which shall close ten days prior to the day of election) for any special or municipal election,” thus producing the existing conflict. The [109] action of the commissioners in endeavoring to reconcile the two statutes, as it is .evident was the desire, though it may have been through deference to the wishes of the people as expressed by petition, still was in excess of the jurisdiction of the board, and therefore void. The District Court erred in affirming such action, and its judgment is reversed, with directions to enter a judgment annulling the proceedings of the board of county commissioners of Washoe County, had upon the fifth day of April, a.d. 1870, touching the matter of the removal of the county seat. Lewis, C. J., did not participate in the foregoing decision.