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State v. Bonnifield

December 31, 1914

STATE OF NEVADA, EX REL. C. E. HAVILAND, WILLIAM H. COOPER, AND JAMES P. BYRNES, AS THE BOARD OF COUNTY COMMISSIONERS OF HUMBOLDT COUNTY, STATE OF NEVADA, APPELLANTS, V. S. J. BONNIFIELD, AS COUNTY AUDITOR OF HUMBOLDT COUNTY, STATE OF NEVADA, RESPONDENT.


Appeal from the Sixth Judicial District Court, Humboldt County; Peter Breen, Judge, presiding.

J. A. Callahan, for Appellant.

W. S. Bonnifield, for Respondent.

By the Court, Norcross, J.:

This is an appeal from a judgment of dismissal following the sustaining of a demurrer to a petition for a writ of mandate.

[1] A proceeding in mandamus was instituted in the

[37 Nev. 44, Page 45]

Sixth judicial district court in and for Humboldt County by the state, on the relation of the board of county commissioners of Humboldt County, against the respondent, as auditor of said county, to require respondent, in conjunction with the county treasurer of said county, to make certain quarterly reports, relative to the fiscal affairs of said county, as required by the provisions of Revised Laws, sec. 3746.

The petition or affidavit which was filed February 3, 1913, in support of the writ, alleged in substance that at all the times and dates mentioned in the petition the respondent was the duly elected, qualified, and acting county auditor of said Humboldt County; that ever since the 30th day of June, 1911, respondent had failed or neglected to either make or join with the county treasurer in making the joint statements required by said section 3746; that the county treasurer, during all said times, was and now is ready and willing to make such joint statements, but was and is unable to do so by reason of the failure and neglect of respondent to join with him; that by reason of such failure the relators were unable to perform their duties as required by law.

The petition prayed for the issuance of a writ of mandate directed to respondent, and requiring him to make and file, jointly with the said county treasurer, all statements and reports in arrear, within a time to be fixed by the court.

Respondent demurred to the petition upon two grounds: (1) That the petition or affidavit did not state facts sufficient to constitute a cause of action. (2) That there is a non-joinder of parties defendant.

Rev. Laws, sec. 3746, provides: “The county auditor and treasurer of each county in the state shall, on the first Mondays of April, July, October, and January, make a joint statement to the board of county commissioners, and forward a copy to the state controller, showing the whole amount of collections (stating particularly the source of each portion of the revenue) from all sources paid into the county treasury; the funds among which

[37 Nev. 44, Page 46]

the same was distributed and the amounts to each; the total amounts of warrants drawn and paid, and on what funds; the total amounts of warrants drawn and unpaid; the accounts or claims audited or allowed and unpaid, and the fund out of which they are to be paid, and, generally, make a full and specific showing of the financial condition of the county, which shall be published in some newspaper published in the county, if there be one; if not, then by posting the same in a conspicuous place on the courthouse of said county.”

Respondent failed to file any brief in this court, and we an only surmise what his position was in the court below from the record, and from statements contained in appellant's brief. From these we gather that it was respondent's contention that, as the statute required the fiscal statements to be made jointly by the treasurer and auditor, the treasurer was a necessary party to the proceeding, and that, as respondent had entered upon a new term of office on the first Monday in January, 1913, he could not be required to perform any official duties which he had failed to perform during his preceding term of office. We think both these contentions are without merit. If the official duty is a continuing one until performed, a writ will lie against the incumbent in office, regardless of the fact that his predecessor in office should primarily have performed the duty. A similar question was presented in the recent case of Stone v. Bell, Auditor, 35 Nev. 240, 129 Pac. 458, in which we said: “The question is one of original impression in this court, and we see no good reason not to adopt the view that ...


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