Carey Van Fleet, for Petitioner.
Geo. B. Thatcher, Attorney-General, Edw. T. Patrick, Deputy Attorney-General, and George F. Talbot, for Respondent.
By the Court, Sanders, J.:
This is an application for a writ of prohibition made on the following state of facts:
Henry J. Jones and James G. Gregory, since the 1st day of January, 1916, are the duly qualified, commissioned,
and acting members of the board of county commissioners of Elko County. As the result of investigations made by the grand jury of said county selected for the year 1917, John H. Cazier, the foreman thereof, with the knowledge and approval of its members, and upon the advice and direction of the attorneys acting for the county of Elko and the State of Nevada, on the 26th day of October, 1917, filed two separate complaints in the district court of the Fourth judicial district of the State of Nevada, in and for the county of Elko, under sections 2851 to 2854, inclusive, of Revised Laws, which provide for the summary removal from office of any person 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. One complaint is entitled The State of Nevada, Plaintiff, against Henry J. Jones, Defendant, and the other The State of Nevada against James G. Gregory, Defendant. The complaints make general charges for the removal of the defendants from office for malfeasance in office, and demand that the defendants be cited to appear before the said court on a day certain and that the court proceed to hear, in a summary manner, the complaints and the evidence, and if on the hearing it shall appear that the charges are sustained, that the court enter a decree that the defendants be deprived of their office. Thereafter the complaints, on motion of the attorneys for the plaintiff, were dismissed without prejudice. Thereupon, with the leave of court, two separate complaints were filed, one entitled The State of Nevada, Plaintiff, on the Relation of John H. Cazier, Complainant, against Henry J. Jones, Defendant, and the other against James G. Gregory, defendant. The complaint against Jones specifies 134 charges of alleged misconduct in office, and that against Gregory specifies 136 alleged charges of misconduct, and demand that the defendants be removed from office in the summary manner as prescribed by section 2851, et seq., Revised Laws. The caption of each complaint is in part as follows:
In the District Court of the Fourth Judicial District of the State of Nevada, in and for the County of Elko. The State of Nevada, Plaintiff, on Relation of John H. Cazier, Complainant, v. Henry J. Jones, Defendant. Complaint.
On behalf of the State of Nevada and pursuant to her laws, and for the benefit of Elko County, Nevada, hereinafter designated as the county, John H. Cazier, herein designated as complainant, for cause of removal from the office of county commissioner of Elko County, State of Nevada, of Henry J. Jones, incumbent of that office, hereinafter designated as the defendant, on oath complains and alleges: That complainant is a citizen of the United States, over the age of 21 years, is a resident and taxpayer of Elko County, in the State of Nevada, is foreman of the last called grand jury of Elko county, impaneled on the 18th day of September, 1917, in the above-entitled court, which grand jury has not yet been discharged; and this complaint is made at the request of the members of this grand jury; that defendant is, and ever since the first Monday in January, 1915, has been, a duly elected, qualified, and acting county commissioner and as such county commissioner is, and ever since the first Monday in January, 1915, has been, a member of the board of county highway commissioners of Elko County, Nevada; that defendant is, and ever since the first Monday in January, 1917, has been, the chairman of the board of county highway commissioners of Elko County, Nevada; * * * that as such county commissioners and as such member of the board of county highway commissioners, the defendant has been guilty of malpractice and malfeasance in office and has refused and neglected to perform the official duties pertaining to his office, as prescribed by law, at various times, including the instances hereinafter stated. * * *
Each of the defendants, by their attorney, moved to quash the citations issued on these complaints, upon the grounds that the citations were issued under section 2851,
et seq., and that the plaintiff was attempting to proceed under said sections, whereas the alleged charges therein made are based upon written accusations presented by the grand jury of the county of Elko and filed in said court, and that the court is without jurisdiction to proceed against the defendants under section 2851, et seq., and that the proceedings, if any be had, should be under section 6894, et seq., of Revised Laws, which provide for the removal of civil officers otherwise than by impeachment, and provide for a trial by jury, and that the trial be conducted in the same manner as a trial upon an indictment. (Rev. Laws, 6903.) The motions to quash were denied, and the causes set for trial in said court on the 13th day of May, 1918.
On the 10th day of May, 1918, the defendants made a joint application to this court for an order restraining the district court of the Fourth judicial district of the State of Nevada, in and for the county of Elko, and E. J. L. Taber, the judge thereof, or any judge, from proceeding to try the said complaints, or take any steps in said causes under section 2851, et seq., upon the grounds that the proceedings are in fact written accusations duly made, presented, and filed by a grand jury of Elko County, and that unless restrained said court will proceed in a summary manner to hear the complaints without a jury and contrary to the proceedings prescribed by section 6894, et seq. In view of the positive averments contained in the petition, this court, for the purpose of inquiring into the jurisdiction of the said district court thus challenged, issued a show-cause order directed to the respondent, and staying the proceedings in said county until the further order of this court.
After a hearing of the issue joined upon the application for the writ, and the answer and traverse of the respondent, and upon due consideration of the testimony of John H. Cazier, the complainant in each of said actions, we are satisfied that the proceedings instituted against the defendants, and each of them, are ...