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Chartz v. Carson City

April 1916

ALFRED CHARTZ, D. G. KITZMEYER, MRS. C. W. FRIEND, ANDREW ROBERT, W. H. KAISER, W. H. SWEETLAND, MRS. E. KITZMEYER, GEE HING, MRS. D. G. KITZMEYER, MRS. M. E. RINCKEL, MRS. D. CIRCE, GEO. E. KITZMEYER, GEO. E. KITZMEYER (AS ADMINISTRATOR OF THE ESTATE OF MRS. L. E. KITZMEYER, DECEASED); CARSON AERIE OF EAGLES, NO. 1006 (A CORPORATION), BY ITS TRUSTEES; MRS. S. J. KELSEY, J. S. SHAW, LUCY KLASS, MARIE TOUPIN, MRS. MARIE L. SUMMERFIELD, AND MRS. EMILY COFFIN-ROSS, APPELLANTS, V. CARSON CITY (A MUNICIPAL CORPORATION), AND A. MACDONALD, DENNIS HURLEY, PETER CROW, ROBERT L. FULSTONE, AND GEORGE GILLSON, THE DULY ELECTED, QUALIFIED, AND ACTING CITY TRUSTEES OF SAID CARSON CITY, RESPONDENTS.


Appeal from the First Judicial District Court, Ormsby County; T. C. Hart, Judge.

Alfred Chartz, for Appellants.

James G. Sweeney, for Respondents.

Geo. B. Thatcher, Attorney-General, amicus curiae.

By the Court, McCarran, J.:

This action was commenced in the district court of Ormsby County by certain citizens and taxpayers of Carson City, who prayed for a restraining order and an injunction against the respondents as the duly elected, qualified, and acting city trustees, the object of the injunction being to restrain the said city trustees from issuing the notes or other evidence of indebtedness of Carson City for the purpose of paying for the paving of

[39 Nev. 285, Page 288]

certain street intersections in Carson City, and also to restrain the said board of trustees from the passage of any ordinance ordering or commanding the plaintiffs, appellants herein, or any of them, to pave the section of Carson Street upon which their properties abut. It appears from the record that certain property owners and taxpayers on Carson Street in the city of Carson, thirteen in number, petitioned the city trustees to pave said Carson Street. After considering the matter, the board of city trustees passed a resolution, providing for the paving of Carson Street; and, in order to meet the expenses of the paving of the intersections of Carson Street with other streets of the town crossing the same, which space was chargeable to the city, the board of city trustees, by a unanimous vote, passed the following resolution:

“Whereas, it appearing to the board of trustees of Carson City, Nevada, that Carson Street, the main thoroughfare of said Carson City, is in a deplorable condition and in need of immediate repair; and whereas, the general fund of said city, from which is drawn the money necessary to make such repairs, is in such condition that no money can well be taken therefrom for making any repair whatever on said street; and whereas, Carson City can secure the pavement of said street from Washington Street on the north to Second Street on the south, by paving the intersections thereof, at a cost of $10,000: Now, therefore, by reason of the great necessity or emergency existing, be it resolved that Carson City, by the unanimous vote of its board of trustees, authorize, and by this resolution does authorize, a temporary loan of $10,000 for the purpose of paving the intersections of cross streets with said Carson Street from Washington Street on the north to Second Street on the south, all in Carson City, Nevada; that this loan be known as an ‘Emergency Loan'; that such emergency indebtedness be paid by a levy of an extra tax sufficient to pay the same at the next tax levy to be made on or about the first Monday in March, 1916;

[39 Nev. 285, Page 289]

that such extra tax be known as an ‘Emergency Tax'; that this resolution be spread upon the minutes of this board and that a certified copy thereof be sent forthwith to the State Board of Revenue asking for its approval by resolution.”

This resolution was submitted to the governor, state controller, and attorney-general, styling themselves the “State Board of Revenue,” and a resolution was passed by that body approving and authorizing a temporary loan of $10,000 to be made by Carson City for the purposes set forth in the resolution of the board of trustees of said city. It is to prevent the carrying out of this resolution on the part of the board of trustees and the creating of an indebtedness against the property of the city of Carson by said board that these proceedings were instituted. Judgment having been rendered against the plaintiffs in the court below, appeal is taken from the judgment to this court and a number of assignments of error are relied upon.

The city of Carson is an incorporated city, its charter having been passed by a special act of the legislature on March 25, 1875. A number of amendatory acts have been passed by successive legislatures, many of which are unimportant to the matter at bar.

By the legislative act of February 28, 1907, section 10 of the city charter was amended, and the section as amended reads in part as follows:

“The board of trustees shall have the following powers: * * * Third—To lay out, extend and change the streets and alleys in said city, and to provide for the grading, draining, cleansing, widening, lighting, or otherwise improving the same; also to provide for the construction, repair, preservation, grade, and width of sidewalks, bridges, drains and sewers, and for the prevention and removal of obstructions from the streets, alleys and sidewalks, drains and sewers of said city. * * *” (Stats. Nev. 1907, p. 53.)

By the legislative act of March 28, 1907, the act incorporating the city of Carson was amended; and

[39 Nev. 285, Page 290]

sections 33 and 34 of the act as amended are in part as follows:

“Sec. 33. The board of trustees shall have the power by ordinance to grant any franchise or create any city or municipal bonded indebtedness, and to levy and collect a special tax to pay the interest and principal of such bonded indebtedness. * * * But no ordinance for such purpose or purposes shall be valid or effective for any purpose unless the board of trustees shall first pass a resolution which shall set forth, fully and in detail, the purpose or purposes of the proposed bonded indebtedness, the terms, amount, the rate of interest and the time within which redeemable, and on what fund; or the applicant for, the purpose and character of, terms, * * *. Such resolution shall be published in full in some newspaper published in the city, for the period of at least four weeks. On the first regular or special meeting of the board of trustees after the expiration of the period of such publication, the board of trustees shall, unless a petition shall be received by it, as in the next section provided, proceed to pass an ordinance for the issuing of the bonds, * ...


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