County of Pershing v. Sixth Judicial District Court ex rel. County of Humboldt

By the Court, Sanders, J.: These cases were argued and submitted as a single case. For convenience we will refer to it as the case of Pershing County against Humboldt County, since it appears that the latter declines to recognize Pershing County as being a legally created and established county of the state. On March 18, 1919, an act of the legislature was approved entitled “An act creating and organizing the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.” Stats. 1919, p. 75. On the same day, to wit, March 18, 1919, the governor approved an act entitled “An act to amend sections 16 and 19 of an act entitled ‘An act creating and organizing' the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.’” Stats. 1919, p. 82. On the change from the territorial to a state government the several counties of the Territory of Nevada were recognized as legal subdivisions of the state. Since that time the legislature has, by special legislative enactments, changed the boundaries of some, consolidated and divided others, until there now exists seventeen organized counties in the state, including the alleged county of Pershing. Subject in a state only to constitutional limitation, a county is the merest creature of the legislature. It is recognized by the fundamental law of this state as a body corporate. Const. Nev. art. 17, sec. 1. 1. From the legislature a county derives its name, its extent of territory, its mode and manner of government, its power and rights. It is a creature of the legislature. Called into existence by it, and subject to the restric [85] tions named, its whole being may be changed by the same power which created it. Its territory may be cut up and parceled out to the other counties; its common property and common burden apportioned in such manner as to the legislature may seem reasonable and equitable ; its existencé as a county blotted out; and this all against the will of its inhabitants. Vincent v. County of Lincoln (C. C.) 30 Fed. 751; Comrs. of Laramie County v. Comrs. of Albany County, 92 U. S. 307, 23 L. Ed. 552; Board of Comrs. v. City of Osborne (Kan.) 180 Pac. 233; Cooley, Const. (2d ed.) 192; 11 Cyc. 341-345; 7 R. C. L. 923-926. 2, 3. But, if we clearly interpret the position taken by the learned counsel for Humboldt County in these original proceedings, it is their contention that since the enactment of the initiative and referendum by the legislature and its ratification by the people, the fundamental principle that a state through the legislative department of its government may divide the established territory of a county and give to a new county taken therefrom a corporate existence is “local legislation” within the meaning of the referendum clause of the constitution and the act passed in aid of its execution (Const. Nev. art. 19, sec. 3; Stats. 1915, p. 157), and therefore the act creating and organizing Pershing County out of a portion of Humboldt County is reserved by the referendum law to the people of Humboldt County to signify by their votes, at an election called for that purpose, their approval or rejection of the law, and that the referendum having been duly invoked with reference to the law in question, its operation is suspended until the qualified electors of Humboldt County have been given an opportunity to signify their approval of the law. We fully recognize the rule that the legislature has the power to pass a law to take effect on a contingency expressed in the body of the law, and that the legislature may designate that contingency as a vote of the people of the territory affected by the law. 26 Am. & Eng. Ency. Law, 567. This rule is recognized to ,a certain [86] extent by this court in the case of Hess v. Pegg, 7 Nev. 28, and was expressly applied by the Supreme Court of California to the division of a county in the case of People v. McFadden, 81 Cal. 489, 22 Pac. 851. But it is manifest from section 20 of the act that it was the intention of the legislature that the act creating and organizing the county of Pershing out of a portion of Humboldt County should become effective immediately, without regard to the will of the inhabitants of Humboldt County. This is a matter for the legislature, and it is not for this court to oppose its judgment to that of the legislature in this important particular. Unless the law be in “clear, palpable and direct conflict with the written constitution,” it must be sustained.” Sec. 3, art. 19, of the constitution provides, inter alia: “The initiative and referendum powers in this article provided for are further reserved to the qualified electors of each county and municipality as to all local, special and municipal legislation of every character in or for said respective counties or municipalities.” We concede, or it must be conceded, that an act creating a new county out of territory of an established county relates to and necessarily affects the latter, but we are unable to bring ourselves to the conclusion that such legislation is a local law “in or for” the county out of which the new county is created. But on the contrary, if it be local legislation, as the term is used in section 3, article 19, of the constitution, it is legislation for the new county of Pershing, and not for the old county of Humboldt. Counties are of purely a political character, constituting the machinery and essential agency by which free governments are upheld, and through which, for the most part, their powers are exercised. Their functions are purely of a public nature. 11 Cyc. 351. Whatever may be the literal import of the initiative and referendum amendment to the constitution, it must be construed with others of the organic law. It cannot be construed that the legislature and the people intended [87] by its enactment and adoption to surrender the sovereignty of the state over a particular portion of its territory to the people who inhabit it. Such interpretation would amount to a recognition of the' state’s independent right of dissolution. It would lead to sovereigntial suicide. It would result in the creation of states within the state, and eventually in the surrender of áll state sovereignty. Hedges, “Where the People Rule,” 15-16. In view of the essential character and nature of a county as it relates to and is connected with the sovereignty of the state, we are of the opinion that the power which the legislature possesses to divide counties and apportion their common burdens is not abridged, limited, restricted or affected by the initiative and referendum, and the law in question is not thereby suspended. 4. It is next insisted and strenuously urged that the special provisions of the act, incident to the organization of the county of Pershing, are within the constitutional prohibition against the enactment of special and local laws and void; as in section 9 of the act it is attempted to consolidate the offices of clerk and treasurer, and the offices of sheriff and assessor; that section 19 of the act is contrary to the general law regarding the apportionment of senators and representatives; that the act purports to divide townships, school districts and election precincts, and makes no provision for township government in that portion of territory falling within Pershing County; that the act contains provisions not embraced by its title, and attempts to amend specific statutes not referred to in the title and which are not reenacted. To discuss these disputed provisions separately would extend this opinion to an unreasonable length. The law concerning them is well settled and has been applied in numerous cases arising out of just such cases as this. By the very terms of the title of the act the disputed provisions are incident to the complete organization of Pershing County and are germane to the main object of the act. [88] 5. Unless the validity of the whole act depends upon the constitutionality of one or more of these provisions, or that they are so blended with the general scope and purpose of the act as a whole as to affect the validity of the whole act, or any other of its provisions, its validity, if it should be invalid, does not defeat the general scope and purpose of the act. People v. McFadden, supra. 6, 7. Conceding, but not deciding, that one or more of the provisions is against the general law for a uniform system of government for the counties of the state, we ought not in this action to express any opinion as to its constitutionality. “It will be time enough to pass upon it when some right dependent thereon is brought before the court for adjudication.” Furthermore, we are of the opinion that the parties respondent have not shown themselves to be in a position to attack the constitutionality of these separate provisions. The rule is well established that one who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality, or obtain a decision as to its invalidity, on the ground that it impairs the rights of others. 6 R. C. L. 89. This rule applies to the position of Humboldt County in this case. We are unable to perceive in what manner the designation of officers of Pershing County and the manner of its organization affects Humboldt County. Without regard to the constitutionality of the separate and distinct provisions of the act, we are clearly of the opinion that the act as a whole is constitutional. It is therefore ordered that the alternative writ of prohibition heretofore issued be and is hereby made permanent and peremptory; and it is further ordered that the writ of mandate, as demanded, do issue; and the injunctive order appealed from is affirmed.