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Stone v. Bell

October 1912


Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers, Judge.

John F. Kunz, District Attorney, for Appellant.

Henry M. Hoyt and B. J. Henley, for Respondent.

By the Court, Norcross, J., after stating the facts as above:

[1] It is the contention of counsel for appellant that the court below erred in allowing the motion of plaintiff to substitute M. J. Bell as respondent in the proceeding after expiration of the term of office of George Brodigan, against whom the proceeding was originally instituted. Counsel contends that the proceeding abated upon the expiration of the term of office of the original respondent, and that it was improper to substitute his successor in office, and a number of cases are cited to support this view. The question is one of original impression in this court, and we see no good reason not to adopt the view that the successor in office in a case of this character may be substituted in place of the officer whose term has expired. Here an official duty is sought to be enforced, one which continues until performed, regardless of who may, for the time being, be the incumbent of the office. To hold that a proceeding of this character abates, simply because there is a change in the person occupying the office, is to impose needless expense and delay upon a litigant seeking to enforce what he deems to be a legal right. If the successor in office sees fit to adopt the course of his predecessor in refusing to perform what is

[35 Nev. 240, Page 245]

alleged to be an official duty, no good reason appears why a new proceeding should of necessity be instituted.

[2, 3] There is no statutory authority for a district judge to enter an order authorizing a grand jury to employ an accountant to audit the books of county officers. It is the contention of counsel for respondent on appeal that the district court had the inherent authority to make the order in question. Our attention has not been called to, nor have we been able to find, an authority directly in point.

By section 211 of the old criminal practice act, which is identical with section 178 of the act now in force (Rev. Laws, 7028), it is provided: “The grand jury must inquire into the case of every person imprisoned in the jail of the county, on a criminal charge, and not indicted; into the condition and management of the public prisons within the county; and into the wilful and corrupt misconduct in office of public officers of every description within the county.” The following section of the old and new acts is substantially the same in both, and reads: “The grand jury shall be entitled to free access, at all reasonable times, to all public prisons, and to the examination without charge of all public records within its district.” (Rev. Laws, 7029.) By an act approved February 12, 1879 (Rev. Laws, 4924), it is provided: “It shall be and it is hereby made the special duty of all district judges in this state to give in charge to the grand juries, at the commencement of each term of their respective courts the full text of the statutes of this state, in reference to the duties, conduct, responsibilities, and penalties of military, civil, and peace officers in this state.”

It is contended by counsel for respondent that “the court had the power to authorize the grand jury to employ auditors to audit the county books by universal and immemorial custom,” and further that the power is also given the court “by necessary implication” by the provisions of section 7028, Rev. Laws, supra.

[35 Nev. 240, Page 246]

We are not aware of the existence of any such custom, nor have we been able to find mention of the same in authorities or text-writers. There is a legal presumption that public officers perform the duties required of them by law, and, while grand juries are commanded to inquire into “wilful and corrupt misconduct of public officers,” such duty is to be performed in the light of such presumption. To perform the ordinary and usual duties of a grand jury does not require the employment by them of an expert accountant.

There are two specific provisions of statute providing for the auditing of the books of county officers. The board of county commissioners are given power “to examine and audit the accounts of all officers, having the care, management, collection, or disbursement of any money belonging to the county or appropriated by law, or otherwise, for its use and benefit.” (Rev. Laws, 1508.) The legislature by an act approved March 26, 1907, provided for the appointment by the governor of a state auditor, who “shall be thoroughly versed in the science of bookkeeping and accounts,” and whose duty it shall be at the direction of the governor “to examine the books and accounts of all county officials,” etc. (Rev. Laws, 4148-4153.) If the grand jury had reason to believe that the county books of Esmeralda County should be audited, it could have requested either the board of county commissioners or the governor to provide for such an audit.

That courts have certain inherent powers, which neither the legislature nor the executive branch of the government can take from them, is beyond question. We do not think, however, that a district court has the inherent power to make an order authorizing the grand jury to audit the county books. That is not a duty ...

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