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Dotta v. Hesson

October 1914

IN THE MATTER OF EMILIO DOTTA, PETITIONER, V. A. W. HESSON, E. E. CAINE, JOHN CAZIER, AS THE COUNTY BOARD OF EDUCATION OF THE COUNTY OF ELKO, RESPONDENTS.


Otto T. Williams, for Petitioner.

Milton M. Badt, for Respondents.

By the Court, Norcross, J.:

This is an original proceeding in prohibition. The relator, a citizen and taxpayer of Elko County, seeks the order of this court prohibiting respondents, as the county board of education of Elko County, from further proceedings punder that certain act of the legislature entitled “An act to authorize the board of county commissioners of the county of Elko, State of Nevada, to issue bonds to provide for the construction, equipment, and furnishing of a high-school building, in the town of Wells, Nevada, and authorizing the county board of education of said county to construct, equip, and furnish said building,” approved March 22, 1913. (Stats. 1913, p. 240.)

It is contended by counsel for relator that the act in question is a special law, and hence violative of section 21 of article 4 of the state constitution; that the act was repealed by a subsequent act entitled “An act to provide for bonding counties for building and equipping county high schools and dormitories or for either one of these purposes, and other matters properly connected therewith,” approved March 25, 1913. (Stats. 1913, p. 368.)

That if not so repealed, it was amended by the last mentioned act so as to require the two acts to be read and construed together.

Section 1 of the act of March 25, supra, provides: “Whenever the county board of education in any county having a county high school shall certify to the board of county commissioners of such county that a new county high-school building or dormitory, or both of these are needed, or that it is necessary to enlarge one or both of the buildings in use, and that the cost of the same is such that

[38 Nev. 1, Page 3]

it is expedient to raise the necessary money therefor by direct levy and that a bond issue for the purpose is advisable, and shall furnish the board of county commissioners with a definite statement of the amount of money needed therefor, said board of county commissioners is hereby authorized and directed to submit the question of bonding the county for the amount named to the voters of the county at the next general election; or said board may, in its discretion, order a special election if so requested by the county board of education.”

The purpose of the act last mentioned is fully shown by the provisions of section 1, quoted supra. The act contains no provisions of express repeal. Section 10 provides: “All acts or parts of acts in conflict with this act are hereby repealed.”

If there is any repeal of the prior act of March 22, it is by implication.

[1] It is a well-established rule, repeatedly applied by this court, that repeals by implication are not favored. In State v. LaGrave, 23 Nev. 379, 48 Pac. 194, this court said:

“The rule that courts are bound to uphold the prior law if it and a subsequent one may subsist together, or if it be possible to reconcile the two together, is well settled. (McCool v. Smith, 1 Black, 470, 17 L. Ed. 218; Endlich on the Interpretation of Statutes, sec. 21; see the numerous authorities cited by note 1.) Unless the latter statute is manifestly inconsistent with and repugnant to the former, both remain in force. (Industrial School Dist. v. Whitehead, 13 N. J. Eq. 290, and cases cited.) A general statute without negative words will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent. (State, ex rel. Dunkle, v. Beard, 21 Nev. 218, 29 Pac. 531.) The repeal, total or partial, of statutes by implication is not favored. As to this rule there can be no difference of opinion, and further authorities need not be cited.”

[2] The act of March 25, supra. appears to apply only to cases where a county high ...


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