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In Re Dixon

December 31, 1916

IN THE MATTER OF THE APPLICATION OF J. B. DIXON FOR A WRIT OF HABEAS CORPUS.


J. B. Dixon and Frame, Humphrey & Harcomb, for Petitioner.

L. D. Summerfield, City Attorney, for Respondent.

By the Court, McCarran, J.:

This is an original proceeding in habeas corpus.

By the return of J. D. Hillhouse, chief of police of the city of Reno, it appears that petitioner, J. B. Dixon, was on the 5th day of June, 1916, arrested under and by virtue of a warrant of arrest issued by the municipal court of the city of Reno, Washoe County; that the warrant of arrest was issued in accordance with the prayer of a complaint filed with the municipal court of that city; that, upon petitioner's plea of not guilty to the complaint, the action proceeded to trial forthwith; and that on July 5, 1916, the petitioner was by the municipal court of the city of Reno found guilty and a commitment duly issued, under which said commitment the respondent detains petitioner and deprives him of his liberty.

The complaint, under which warrant was issued for the arrest of petitioner and upon which the trial was conducted, is in part as follows:

“That on or about the 28th day of April, A. D. 1916, in the city of Reno, county of Washoe, State of Nevada, the crime of misdemeanor was committed, to wit, by J. B. Dixon, who then and there was wilfully and unlawfully practicing, and did then and there wilfully and unlawfully practice, his profession as an attorney without having first taken out and procured the municipal license required by ordinance of the city council of the said city of Reno; all of which is contrary to the form, force, and effect, and in violation of section 21 of City Ordinance No. 82, as amended, revised, and reenacted by City Ordinance No. 195 of said city of Reno.”

[40 Nev. 228, Page 232]

Petitioner filed a motion to set aside the complaint, and argued the following grounds:

“(1) That said complaint does not allege facts sufficient to constitute a public offense.

“(2) That this court has no jurisdiction or power to consider said complaint or to issue any warrant of arrest thereunder or thereupon.

“(3) That the ordinance referred to in said complaint, and sections 4, 20, and 21 thereof, are ultra vires and beyond the power of the city of Reno to enact.

“(4) That said ordinance and said sections are repugnant to the constitution of the United States.

“(5) That said ordinance and said sections thereof are repugnant to the constitution of the State of Nevada.

“(6) That said ordinance and said sections thereof are repugnant to the charter of the city of Reno.”

The city of Reno is a duly incorporated municipality, its incorporation was founded upon special acts of the legislature of this state, and the legislature of 1915 passed an act amending certain specifically named sections of an act entitled “An act to incorporate the town of Reno, and to establish a city government therefor,” approved March 16, 1903, etc. (Stats. 1915, c. 38.)

City Ordinance No. 195 is entitled “An ordinance to amend, revise, and re-enact the title of, and to amend, revise, and re-enact, city ordinance number 82, entitled ‘An ordinance to fix, impose, and collect a license tax on certain trades, business, occupations, callings and amusements in the city of Reno; to regulate and classify the same, to fix a penalty for the violation thereof; to define the duties of certain officers in connection therewith, and to repeal all ordinances and parts of ordinances in conflict therewith,' passed and adopted October 28, 1907; and to repeal all ordinances and part of ordinances in conflict therewith.”

Section 1 of the ordinance provides:

“Every person, firm, association, or corporation engaged in carrying on, maintaining, pursuing, conducting, or transacting, or that hereafter engages in, carries on, maintains,

[40 Nev. 228, Page 233]

pursues, conducts, or transacts, in the city of Reno the trade, business, occupation, calling, or pursuit hereinafter named, shall obtain from said city and shall pay therefor the license herein specified.”

Section 4 of the ordinance provides:

“Any person, firm, association, or corporation opening, conducting, maintaining, transacting, engaging in, carrying on, or pursuing any business, trade, occupation, calling, or pursuit hereinafter named without first having obtained from said city the license herein required shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than twenty-five ($25.00) dollars and not exceeding one hundred ($100.00) dollars, or by imprisonment in the city jail ...


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