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Gay v. District Court

December 31, 1918


Richard Busteed, Thomas & Ham, and Charles E. Barrett, for Petitioner.

Geo. B. Thatcher, Attorney-General; E. T. Patrick, Deputy Attorney-General; A. S. Henderson, District Attorney, and F. A. Stevens, Deputy District Attorney, for Respondents.

McNamara & Van Fleet, Amici Curiae.

By the Court, Coleman, J.:

This is an original proceeding in certiorari to inquire into the jurisdiction of the Tenth judicial district court of the State of Nevada to enter a judgment removing the petitioner, Sam Gay, as sheriff of Clark County, Nevada, from office.

A complaint was filed in the district court of said county, wherein it was alleged that the defendant, Sam Gay, as sheriff, was guilty of nonfeasance in office, in that he neglected and refused to arrest one Joe Keate, his deputy, while the latter was making an assault with a pistol upon W. H. Harkins, a justice of the peace, in the presence of the defendant. Upon the filing of the complaint citation was issued and served upon the defendant. Defendant did not demur to the complaint, or in any way question the jurisdiction of the court, but filed an answer denying certain of the allegations of the complaint. The matter was heard upon the issue thus raised, and the court found the allegations of the complaint to be true and entered judgment removing the defendant from office.

The constitution of Nevada, as do the constitutions of the various states, divides the powers of the state into three branches, and provides that the judicial power of the state shall be vested in a supreme court, district courts, and in justices of the peace, and authorizes the legislature to establish municipal courts. Section 6, art. 6, of the constitution, provides that the district courts shall have jurisdiction in certain cases, but does not say that they shall have jurisdiction in proceedings for the removal of any public officer; hence council for petitioner contend that the district court had no jurisdiction to hear and determine the charges filed with said court

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and to make the order for the removal of the petitioner from office.

1. Without determining as to the scope and effect of section 6, article 6, of the constitution, but conceding for the sake of this matter that the district court acquired no jurisdiction under the section of the constitution mentioned, we are nevertheless of the opinion that the court had jurisdiction to hear and determine the matter presented in the complaint filed in the district court charging the petitioner with nonfeasance in office. From time immemorial society has found it necessary to make some provision for the removal of venal, corrupt, faithless, and negligent public officers. The importance of this was realized when the constitution of the United States was drafted, and this policy has been carried into the constitution of every state in the union. The impeachment of all of the state and judicial officers of Nevada, except justices of the peace, is provided for in article 7 of the constitution; and while no procedure is prescribed in the constitution for the removal of other officials, section 4 of article 7 reads:

“Provision shall be made by law for the removal from office of any civil officer other than those in this article previously specified, for malfeasance, or nonfeasance in the performance of his duty.”

It was pursuant to this provision of the constitution that the legislature passed “An act providing for the removal from office of public officers for malfeasance or nonfeasance in office, regulating the mode of procedure, and other matters properly connected therewith.” (Stats. 1909, p. 293; Rev. Laws, 2851, 2852.)

Sections 21 and 22 of the act read:

“Sec. 21. If any person now holding or who shall hereafter hold any office in this state, who shall refuse or neglect to perform any official act in the manner and form as now prescribed by law, or who shall be guilty of any malpractice or malfeasance in office may also be removed therefrom as hereinafter prescribed.

“Sec. 22. Whenever any complaint in writing duly

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verified by the oath of any complainant, shall be presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused or neglected to perform the official duties pertaining to his office as prescribed by law, or has been guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the party charged to appear before him on a certain day, not more than ten nor less than five days from the time when said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence offered by the party complained of, and if, on such hearing, it shall appear that the charge or charges of said complaint are sustained, the court shall enter a decree that said party complained of shall be deprived of his office, and shall enter a judgment for five hundred dollars in favor of the complainant and such costs as are allowed in civil cases.”

The constitutional convention, in adopting section 4 of article 7 of the constitution, realized, no doubt, that to confer upon legislative bodies the duty of impeaching, trying, and removing district, county, township, and municipal officers would be to place an undue burden upon the legislature, and furthermore might, in some instances, unreasonably delay the removal of vicious officials, and in many cases would afford no relief whatever, in view of the fact that a majority of the officers contemplated by section 4, article 7, of the constitution, are elected for only two years, and since the legislature convenes during the month in which the public officers referred to take office, and adjourns at the end of sixty days, not to reconvene until after the term of all county officers shall have expired, and therefore conferred plenary power upon the legislature to provide a special and summary proceeding for the removal of certain officers. (State v. Borstad, 27 N. D. 533, 147 N. W. 380,

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Ann. Cas. 1916b, 1014; State v. District Court, 53 Mont. 350, 165 Pac. 294.)

Numerous objections are made to the act under which the proceedings in the district court were had, but, as we view the authority conferred by the section of the constitution mentioned, they may be all brushed aside, save and except such objections only as go to the title of the act. We say this for the reason that the power of the legislature is plenary so far as providing for the method of procedure is concerned. We do not think there is any authority which questions this view. The Supreme Court of California, in Re Marks, 45 Cal. 199, had under consideration a statute substantially the same as ours, and one which was enacted pursuant to a constitutional provision to all intents and purposes the same as ours. The court in that case said:

“The act of 1853 does provide how, in what manner, upon what procedure, in what court, officers, not of the first class, shall be tried for that misdemeanor in office known at common law, and recognized in this statute as neglect of official duty. The power of the legislature to enact such a statute (under the latter clause of section 18) is plain—as obvious as is the power of the assembly to prefer and that of the senate to try articles of impeachment under the first clause of the same section. The power to remove certain officers for misdemeanor in office is exercised only by the assembly and senate under the name of impeachment—the like power to remove all other officers under like circumstances and for like causes is to be exercised ‘in such manner as the legislature may provide.' (Section 19.) The power to provide the manner in which a delinquent is to be tried in the second case is on a footing with the power to directly remove the delinquent by the judgment of the senate in the first case.”

In a comparatively recent case, in an opinion by Beatty, C. J., and concurred in by the full court, the Supreme Court of California said:

“This is a summary proceeding regulated, as far as it

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is regulated at all, by a statute (Pen. Code, sec. 758, et seq.) which the legislature has plenary power to pass under the authority of section 18 of article 4 of the constitution, providing for the trial of public officers for misdemeanor in office otherwise than by impeachment. It is exempt from merely technical rules of procedure. (Case of Burleigh, 145 Cal. 36, 78 Pac. 242.)” (In Re Shepard, 161 Cal. 171, 118 Pac. 513.)

The Supreme Court of Minnesota, in considering the authority of the legislature under a similar constitutional provision in the case of State v. Peterson, 50 Minn. 239, ...

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