State ex rel. Rosenstock v. Swift

By the Court, Earll, J.: This is a complaint or information by the attorney-general of this state, in the nature of a quo warranto, instituted at the relation of Joseph Rosenstock, to determine the right of the respondent to hold and exercise the office of marshal of Carson city. The respondent demurred to the complaint — 134 — or information on the general ground that it does not state facts sufficient to constitute a cause of action; hence the facts stated therein are to be taken as admitted. The questions presented involve the validity of the act entitled “An act to incorporate Carson city,’’approved February 25, 1875. (Stats. 1875, 87.) It is contended by the relator that the act is in contravention of several provisions of the constitution of this state, and is, therefore, totally void. The first objection urged against the validity of the act is that the legislature had no power to appoint, in the act of incorporation, the board of trustees who were to organize the city government and to conduct the affairs thereof for the first year, as provided by section four of the act, which is as follows: “The board of trustees for the first year shall consist of Henry F. Eice and A. B. Driesbach, representing the first ward; David A. Bender and William IL Corbett, representing the second ward; and Jacob Klien, from the city at large, whose duty it shall be, upon the first Monday in March, eighteen hundred and seventy-five, to assemble at the court-house in Carson city, take the oath of office as such trustees, and hold their first meeting as a board of trustees. Before entering upon any other business, the trustees above named, representing the first ward, shall determine their several terms of office by lot; and as so determined, the one trustee shall continue in office until the first Monday in May, A. D. eighteen hundred and seventy-six, and until his successor is duly qualified; and the other of said trustees shall hold his office as such until the first Monday in May, eighteen hundred and seventy-seven, and until his successor is duly qualified; and the other two trustees, hereinbefore named as representing the second ward, shall then and there, in like manner, determine by lot, their several terms of office, and shall, as so determined, hold in all respects as the trustees of the first ward. The board shall then elect one of their number, who shall be tbe president of the board of trustees until the first annual election taking place under the provisions of this act, and the board — 135 — shall then proceed generally upon their duties.” (Stat. 1875, 88.) It is argued that the power of appointment to office is, in its nature, an executive function, and therefore the naming, in the above-quoted section of the act, the persons who were to constitute the trustees for the first .year, was in violation of article three, and sections one and eight of article five, and section ten of article fifteen of the constitution of this state, which are as follows: “Article 3. 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 cases herein expressly directed or permitted. • “Article 5, section 1. The supreme executive power of the state shall be vested in a chief magistrate, who shall be governor of the state of Nevada. “Sec. 8. When any office shall, from any cause, become vacant, and no mode is provided by the constitution and laws for filling such vacancy, the governor shall have the power to fill such vacancy by granting a commission, which shall expire at the next election and qualification of the person elected to such office.” “Article 15, section 10. All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.” Of these provisions of the constitution, section 8 of article 5, alone confers any appointing power upon the executive department of the government, and that only so far as to authorize the governor to temporarily fill vacancies occurring in existing offices, when no other mode for filling such vacancies has been provided by the constitution and laws. The constitution nowhere designates what officers shall be provided for incorporated cities, nor doés it declare whether municipal officers shall be elected or appointed, and if there is any restriction on the power of the legislature over such officers it must be found elsewhere than in — 136 — the provisions of the constitution above quoted. But there is nowhere in the constitution any express provision on the subject, hence if such limitation of the legislative power, as is here contended for exists, it must be found in some manifest implication. It is, however, argued on behalf of the relator, that the appointing power is in its nature and essence executive, and inherent in the executive department independent of any express provision of the constitution, and Marbury v. Madison, 1 Cranch, 137; Achley's Case, 4 Abbott’s Pr. 35, and The State ex rel. Attorney-General v. Kennon, 7 Ohio St. 546, are cited in support of this position. The only authority above cited which, in our opinion, tends to support the position of relator is the case cited from 4 Abbott’s Pr. 35. In that case Davies, J., says: “The exercise of the power of appointment to office is a purely executive act, and when the authority has been exercised, it is final, for the term of the appointee.” The authorities cited in support of this opinion are the ninth section of the amended charter of the city of New York in which it was provided, “that no committee or member of the common council shall perform any executive business whatever, except such as is or shall be especially imposed on them by the laws of this State, and except that the board of aldermen may'approve or reject the nominations made to them as hereafter provided;” from which the learned judge inferred that the legislature regarded the power to make appointments to office as the exercise of executive authority; and also, the following quoted from Marbury v. Madison, 1 Cranch, 137, supra: “When he (the president) has made an appointment, he has exercised his whole power, and his discretion has been completely applied to the case.' If, by- law the officer be removable at the will of the president, then a new appointment may be immediately made, and the rights of the officer are terminated. But, as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and, consequently, if the officer is by law not removable at the will of the president, the rights lie has acquired aré protected by law, and are not resumable — 137 — by tbe president. They cannot be extinguished by executive authority.” Judge Davies, alter quoting the above, says: “It is perfectly apparent, therefore, that the exercise of the-power of appointment to office is not a legislative act.” It may be conceded that the exercise of the power of appointment to office is not strictly a legislative act, yet it does not necessarily follow that it is the exercise of a purely executive function. It is very clear that there is nothing in the opinion of Chief Justice Marshall (from which the above was quoted by Judge Davies) from which it can be implied that the appointing power is inherent in the executive department of the government. The opinion was based upon the positive provisions of the Constitution of the United States conferring the power on the president; but the chief justice nowhere characterizes the appointment to office as the exercise of an executive power, but on the contrary, declares it to be a political power, which, under the Constitution of the United States is to be exercised by the President. (See opinion, 159, 167.) Cooley, under the head of “legislative encroachments upon executive power,” says: “If it is difficult to point out the precise boundary which separates legislative from judicial duties, it is still more difficult to discriminate, in particular cases, between what is properly legislative and what is properly executive duty. The authority that makes the laws has large discretion in determining the means through which they shall be executed, and the performance of many duties which they may provide by law, they may refer either to the chief executive of the state, or, at their option, to any other executive or ministerial officer, or even to a person specially named for the duty.” (Const. Lim. 114, 115.) It is true, the line of distinction between the legislative and executive powers of the government, in respect to appointments to office, is not always so clearly drawn as to be free from doubt. It depends upon the form of government to which it is to be applied. What would come within the legislative power, in our form of government, would fall within the executive in another, and vice versa. The question here presented is, whether, under the constitution of — 138 — this state, the naming in the act of incorporation of the persons who were to constitute the provisional or initiatory board of trustees, was the exercise of a power intrinsically executive. This precise question was presented, and, as we think, correctly decided by this court in the case of Clarke v. Irwin (5 Nev. 111). In that case, the court, by Whitman, J., referring to the case of The State ex rel. Attorney-General v. Kennon, supra (7 Ohio St. 456), (also cited by the relator in that case), say: “The decision in that case is probably correct; but it is based upon a constitutional provision unlike any to be found in the constitution of the state of Nevada. By such provision the appointing power was expressly taken away from the legislature and given to the governor, as the recital of the clause will clearly show;” * * * and that to use the language of one of the judges, “appointing power by the general assembly is thus cut up by the roots, except only in the special cases, in which it is expressly given by the constitution itself. In the constitution of the state of Nevada, the appointing power of the legislature is neither cut up by the roots, nor in any manner hampered, save where the constitution itself, or the federal constitution, provides for filling a vacancy. The former prescribes the mode of filling vacancies only as to state officers and members of the legislature; the latter, as to United States senators and representatives in congress. In every other case the power is in the legislature, to be by it regulated by law, as is evident from the fact that no provision is made save as to vacancies; and as to these, the following is .used:” * * * (Const. Nev., Art. V., Sec. 8.) “Two things must then concur: there must be a vacancy, and no provision made by the constitution, or no existent law for filling the same before the governor can exercise the' appointing power. Now if upon the creation of this new office, because it is such, as the office of sheriff of White Pine county had no existence until the passage of the law creating the county, nq vacancy occurred, the office remained to be filled by some power. The governor had not that power, and there was no prohibition upon the legislature, unless it exist in the constitutional provisions — 139 — heretofore considered, and it has been seen that there it cannot be clearly found, as applicable to a case similar to the present; wherefore the office could be properly filled by the legislature.” This seems to us to be a correct exposition of the constitutional provisions involved, and is fully sustained by judicial decisions of other states in whose constitutions similar provisions are found. (Davis v. The State, 7 Md., 151; Mayor &c. of Balt. v. State, ex. rel. The Board of Police of Balt., 15 Md., 376; People v. Bennett, 54 Barb., 481; The People v. Hurlbut, 24 Mich., 44.) The next objection is that the act is unconstitutional because it constitutes certain county officers ex officio city officers. By the eleventh section of the act the treasurer of Ormsby county is constituted ex officio city treasurer; by the twelfth section the assessor of the county is constituted ex officio the city assessor; by the thirteenth section the district attorney of the county is constituted ex officio the city attorney; by the fourteenth section the sheriff is constituted ex officio the city marshal; and by the fifteenth section the county clerk is constituted ex officio the city clerk. It is difficult to distinguish the principle involved in this objection from the one just considered, and if our conclusion is correct in respect to the power of the legislature to make the provisional or initiatory appointments therein referred to, it follows that it had the power to constitute the designated county officers city officers, and to impose upon them the executive or ministerial duties of the municipality corresponding to their respective duties as county officers. The duties imposed upon them as city officers are of the same character as those which they are respectively required to perform as county officers, and there is no constitutional inhibition against the exercise of the duties of a municipal office by a person holding a county office, when the duties of each are of the same character. But it is claimed that the legislature, by conferring these city offices upon the county officers, have “permanently deprived the citizens of the state, residing Avithin the municipal subdivision, of a fundamental right: the right of local self-government.” — 140 — Tlie existence of a fundamental right of municipal local •self-government, is necessarily dependent upon some constitutional grant or manifest implication, neith'er of which can be found in tl^e constitution of this state. Hence, a municipal corporation, in this state, is but the creature of the legislature, and derives all its powers, rights and franchises from legislative enactment or statutory implication. Its officers or agents, who administer its affairs, are created by the legislature, and chosen or appointed in the mode prescribed by the law of its creation. (People v. Coon et al., 25 Cal. 649; Giovanni Herzo v. San Francisco, 33 Cal. 134; Payne et al. v. Treadway, 16 Cal. 220.) Nevertheless, the principle of local self-government has always been recognized, to a certain extent, by the legislature of this state in the passage of statutes creating and providing for the government of municipal corporations, and the selection of officers and agents to administer the affairs of such corporations has generally been intrusted to the electors of the respective municipalities, or their appointment committed to the authorities thereof; and it cannot, with propriety, be said that the legislature have wholly disregarded this principle in the passage of the act under consideration, because by section 3 of the act the entire government of the city is vested in a board of trustees, to consist of five members, who are required to “be actual residents and owners of real estate in the city, and to be chosen by the qualified electors thereof.” The third objection to the constitutional validity of the act is: “It is a special law regulating the jurisdiction of justices of the peace.” This objection is directed to the sixteenth section of the act, by which a recorder’s court is created for the city, and the justice of the peace of Carson township is constituted “ ex officio the city recorder, with the like jurisdiction as commonly conferred upon recorder’s courts in municipal corporations, subject to appeals taken to the district court as from justices of the peace.” It is quite apparent that this provision of the act has no reference whatever to the jurisdiction of justices of the peace. The offices of justice — 141 — of tbe peace and of city recorder are distinct offices, though, under the act of incorporation, both offices may be held by the same person; and there being no constitutional inhibition against the exercise of both by the same person, we are unable to perceive any force in the objection. (Merrill v. Gorham, 6 Cal. 41; People v. Edwards et al. 9 Cal. 286; People v. Durick, 20 Id. 94.) The fourth objection urged against the validity of the act is: “ It diverts penal fines from the school fund.” By the eighteenth section of the act it is provided: “All taxes, fines, forfeitures, or other moneys collected or recovered. by any officer or person, under or by virtue of the provisions of this act, or of any valid ordinance of the city, shall be paid by the officer or person collecting of receiving the same to the city treasurer. * * * All such moneys shall be placed by the city treasurer in a fund to be known as the general fund, and shall be so kept except as paid out upon proper warrants. * * * ” It is argued on behalf of relator that the act in this respect is in violation of that part of section three of article eleven which declares: ‘ ‘ All fines collectedunderthepenallawsof thestate * * * shallbe, andthe same are, hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for-other uses.” The answer to this is, that this clause of the constitution has no application to fines recoverable for violations of city ordinances, but applies solely to fines recoverable under the general laws of the state. There is a broad distinction between the penal laws of the state and penalties prescribed by the ordinances of municipal corporations, and this provision of tlie constitution manifestly means such fines only as are collected under the penal laws prescribed by the lawmaking power of the state, and cannot, by any legal or constitutional rule of construction, extend to penalties incurred for violation of the ordinances of municipal corporations. The fifth objection is that the law is void because “it is a special law in a case where a general law exists and can be made applicable;” and it is therefore contended that the act was passed in violation of that clause of the twenty-first section of article 4 of the constitution, which declares: “"Where — 142 — a general law can be made applicable, all laws shall be general and of uniform operation throughout the State.” The argument in support of this proposition is that, inasmuch as a general law existed at the time of the passage of the act in question (Stat. 1873, 66) providing for the government of cities and towns, and the town of Carson having been organized under its provisions, it is, therefore, practically demonstrated that a general law can be made applicable. The principle involved in this proposition cannot be distinguished from that decided in Hess v. Pegg, 7 Nev. 23, and also in that of Evans v. Job, 8 Nev. 323. The same argument was urged against the validity of the acts respectively involved in those cases, and the same authorities cited in support thereof as are presented here; there was an elaborate opinion in each case in which all the authorities cited by counsel for the relator, as well as others bearing upon the subject, were fully reviewed, the result of which is 'an exposition of this provision of the constitution adverse to the position of relator, and the principle thus decided must now be regarded as the settled law of this state. There is, however, another clause of the constitution which, in our opinion, clearly recognizes the authority of the legislature to create municipal corporations by special enactment. We refer to section one of article eight, which provides that “the legislature shall pass no special act in any manner relating to corporate powers, except for municipal purposes; but corporations may be formed under general laws; and all such laws may, from time to time, be altered or repealed.” It is true, counsel for relator contends that this interpretation of the section is inconsistent with, and in violation of, section eight of the same article, which reads as follows: “The legislature shall provide for the organization of cities and towns by general laws, and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, except for procuring supplies of water.” It is argued that the two sections can be harmonized only upon the theory that section eight requires all towns and cities to be organized under general laws, while section one merely “permits — 143 — fpecial legislation relating to, or concerning the powers of municipal corporations which were organized and existing at the adoption of the constitution.” This interpretation of counsel for relator is opposed, not only by judicial decisions, but by the practice of the state ever since the adoption of the constitution, and in our opinion, cannot be sustained upon any established principle of constitutional interpretation. , In this country, the creation of corporations, whether private or municipal, is the exercise of legislative power, and until comparatively a recent period, both kinds of corporations were created singly, by special acts of legislation. It, therefore, follows that the authority of the legislature to create corporations by special laws is limited only by the express or necessarily implied restrictions of the constitution. We are, therefore, of opinion that it was not the design of the framers of the constitution, by these provisions, to restrict the porer of the legislature, except in respect to corporations other than municipal. “The people, in framing the constitution, committed to the legislature the whole law-making power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden.” (People v. Draper, 15 N. Y. 543; see also Bank of Chenango v. Brown, 26 N. Y. 469.) There is nothing in all this in anywise in conflict with the authorities cited in support of the position of relator. The decisions cited from the reports of Ohio, Kansas, and Iowa, are all based upon constitutional provisions, which in this respect are entirely unlike the constitution of this state. The decisions of Ohio and Kansas rest upon the same constitutional provisions, which are as follows: “The general assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed.” (Const. Ohio, article 13, sections 1 and 2; Const. Kansas, article 12, section 5.) The courts of those states — 144 — hold that the restriction in these provisions apply to public as well as private corporations, and there can be no question as to the correctness of those decisions as applied by the courts of those states, but they are not applicable to the constitution of this state because municipal corporations are expressly excepted from the operation of the restriction. Also by the thirtieth section of the third article of the constitution of Iowa, the legislature of that state is expressly prohibited from passing “local or special laws. * * For the incorporation of cities and towns; ” and by section one of article eight of the same constitution, it is provided as follows: “No corporation shall be created by special laws, but the general assembly shall provide, by general laws, for the organization of all corporations hereafter to be created, except as hereinafter provided.” The exception in this clause refers to the establishment of a $tate bank and its branches. It will thus be seen that the legislatures of those states are, by the positive provisions of their respective constitutions expressly prohibited from creating either municipal or private corporations except by general laws. The only other authority cited by counsel in support of this proposition is the case, of the City of Virginia v. The Chollar Potosi G. & S. M. Co., 2 Nev. 86, decided by this court in 1866, and in which the precise question under consideration was presented and decided, but instead of sustaining the argument urged on behalf of relator is, in our opinion, a complete answer thereto. The action 'was brought to recover municipal taxes alleged to be due from the defendant to the city of Virginia for taxes on the products of mines. The defense was that the act of 1865, granting to the city a new charter under which the tax in question was levied, was in conflict with section 8, of article 8, of the constitution, and was, therefore, void. Beatty, J., in delivering the opinion of the court, after some general observations in respect to the object and meaning of section 8, says: “But there is another section of the constitution, to-wit: section . 1, of article 8, which we think settles this question. That section reads as follows: ‘The legislature shall pass no special act in any manner relating to corporate powers, ex — 145 — cept for municipal purposes, but corporations may be formed under general laws, and all such laws may, from time to time be altered or repealed.’ The expression ‘in any manner relating to corporate powers ’ is a rather ambiguous phrase, but we think the framers of the constitution meant by that language to prohibit the formation of corporations by special acts. The subsequent language, ‘but incorporations may be formed under general laws,’ shows that was the meaning intended to be conveyed. Then to use more appropriate language the section would read in this way: ‘The legislature shall pass general laws for the formation of corporations, but no corporations (except corporations for municipal purposes) shall be created by special act.’ This we think is what the constitution meant to express.” We entertain no doubt of the correctness of this exposition of these constitutional provisions. Both sections originated in the constitution of the state of New York, adopted in 1846, and have since been substantially incorpor rated into the constitutions of Wisconsin, Michigan and California, and perhaps some other states, in all of which, so far as we have been able to ascertain, the power of the legislature to create municipal corporations by special acts is conceded, and only denied in those states where the provisions of section 8 have been adopted in connection with a clause expressly inhibiting the legislature from passing such special acts. This disposes of every objection urged against the constitutional validity of the act except that which arises upon the clause of section 8, of article 8 of the constitution, which requires the legislature to impose restrictions upon municipal corporations in respect to their “powers of taxation, assessment, borrowing money, or loaning their credit.” This provision of the constitution evidently imposes a duty upon the legislature in respect to the subjects specified, but it does not direct when or how it shall be exercised; nor does it prescribe the character or measure of the restriction which shall be imposed. It therefore follows, that the legislature alone has the power to determine the — 146 — mode and measiere of the restriction. Judge Dillon, referring to this constitutional provision, says: “This obviously enjoins upon the legislature the duty of providing suitable and proper restrictions upon the enumerated powers, but in what the restrictions shall consist, and how they shall be imposed, are subjects left to the discretion or sense of duty of the legislative departments, with the exercise of which the courts cannot interfere.” (1 Dillon on Municipal Corporations, section 27.) Judge Cooly, referring to the same subject, says: “Whether, in any case, a charter of incorporation could be held void on the ground that it conferred unlimited powers of taxation, is a question that could not well arise, as a charter is probably never granted which does not impose some restrictions; and when that is the case, it must be inferred that those were all the restrictions the legislature deemed important, and that therefore' the constitutional duty of the legislature has been performed.” (Cooly on Const. Lim. 518. See also Hill v. Higdon, 5 Ohio St. 248; Maloy v. Marietta, 11 Id. 636-8; 13 Mich. 481; Bank of Rome v. Rome, 18 N. Y. 38; Benson v. Mayor, etc., of Albany, 24 Barb. 248; Clark v. Rochester, Id. 446.) But whether the proposition last above quoted is a correct exposition of this provision of the constitution or not, we do not feel called upon to decide in this case, since it is clear that a limitation is imposed in respect to each of the enumerated subjects by the act in question. By the second subdivision of section 10, it is provided: “They (the board of trustees) shall annually levy a tax of not less than one-quarter of one per cent., nor exceeding one per cent., upon the assessed value of all real and personal property situate in the city and made taxable by law for state and county purposes.” And by the third subdivision of the same section, the power of assessment conferred for the improvement and repair of streets and sidewalks is limited to the cost of such improvements and repairs, and required to be assessed against the owner or owners of the property in front of which the improvement or repair is made; and by the thirty-first section it is provided that “No debt shall be created directly or indirectly against the city beyond the. — 147 — amount of current revenues of the city; nor shall any contract for supplies of water or gas, or other supplies for the city, or any other contract whatever made on behalf of the city, be of any validity for any period exceeding one year.” It' will thus be seen that the legislature was not unmindful of the-duty enjoined by the constitutional provision referred to, nor did they evade its performance by the passage of the act in question. It is true, there is no express restriction upon the power of the corporation to loan its credit; but no such restriction was required, because the power is nowhere granted by the act. It is a well-settled principle of law that a municipal corporation possesses and can exercise such powers only as are expressly conferred by the law of its creation, or such as are necessary to the exercise of its corporate powers, the performance of its corporate duties, and the accomplishment of the purposes for which it was created. (1 Dill, on Mun. Corp., section 55, and authorities cited.) The question whether the failure on the part of the legislature to impose restrictions upon the power of the corporation in respect to fixing and collecting a license tax, conferred by the eighth subdivision of the tenth section, is not necessarily involved in the decision of this case, and it is, therefore, wholly unnecessary to discuss it. If that provision of the act is entirely invalid, it in no respect impairs the general operation and effect of the act. It is not sufficient for the relator to show that some particular provision of the act is not warranted by the constitution. “It is well settled that when a part of a statute is unconstitutional, that will not authorize the court to declare the remainder of the statute void, unless all the provisions are connected in subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected in meaning that it cannot be presumed that the legislature would have passed one without the other.” (Evans v. Job, supra, 342.) It is apparent that the main general purposes of the act are not dependentupon the validity of the provision referred — 148 — to, nor is the right of respondent to exercise the office of city marshal in any manner affected thereby. "We are, therefore, of opinion that the act in question is constitutional, and that respondent is entitled to exercise the office of marshal of said city. It is, therefore, ordered that the information be dismissed.