State ex rel. Twaddle v. Board of County Commissioners

By the Court, Beatty, J.: This is an original proceeding upon certiorari instituted for the purpose of obtaining a review of the action of the [19] commissioners of "Washoe county in vacating a certain high-way. The petition filed in this court shows that the relator is injuriously affected by the closing of the road, and avers that the order was made upon the petition of only fourteen persons in a county containing more than one hundred legal voters. The return to the writ shows that the petition was signed by only fourteen persons, and is silent as to the number of legal voters in the county. As the jurisdiction of the board to make the order complained of must be affirmatively shown (6 Nev. 95; Id. 104; 5 Nev. 317; 9 Nev. 360), it must be presumed that the county of Washoe did contain more than one hundred legal voters, and, consequently, that the petition upon which the board assumed to act was insufficient to authorize their proceedings; for the only law in force at the date when the petition was filed and the order made, required the signatures of twenty-four freeholders, in counties containing one hundred or more legal voters, to any petition to vacate a highway. (Stat. 1866, 252, sec. 5.) That the action of the board was in excess of its powers and completely null and void, admits of no doubt. But the respondents contend that this proceeding is barred in this case by the judgment of the district court of Washoe county in a similar proceeding formerly commenced-in that court. The manner in which this point is raised does not entitle it to be considered upon its merits, if it had any. There is no plea of former judgment. But, waiving that objection to its consideration, it is clear that the evidence would not have supported such a plea. It appears that the district court refused to issue the writ, and dismissed the application. Nothing was adjudicated in the district court, so far as appears, except that the petition filed there was insufficient to authorize the issuance of the writ. But the petition filed in this case contains a material averment that was not contained in the petition to the district court. In this case, it is averred that the petition to the board of commissioners to vacate the highway was signed by no more than fourteen freeholders, while in the district court it was only alleged that the petition had been [20] signed by fourteen freeholders, without the addition of the words “and no more.” This difference is material, and consequently tlie judgment in the proceeding in the district court is no bar to tliis proceeding, in which the petition is conceded to be sufficient. (47 Cal. 32; 2 Metcalfe, Ky. 544; 1 A. K. Marshall, 237; 24 Ind. 156.) The order of the board of commissioners of Wasboe county, dated March 1, 1875, vacating a certain highway commencing at the Virginia and Truckee railroad, in Wasboe valley, and running through lands of E. Owens and Joseph Erey to the upper county road, is declared and adjudged to be null and void, and tbe relator will have judgment for bis costs herein expended.