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Pershing Co. v. Humboldt Co.

December 31, 1919

COUNTY OF PERSHING, W.C. PITT, J.T. GOODEN, H.J. MURRISH, JOHN A. JURGENSON, C.L. YOUNG, AND J.H. CAUSTEN, PEITIONERS, V.THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF HUMBOLDT, AND HONORABLE T.C. HART, DISTRICT JUDGE THEREOF, PRESIDING, RESPONDENTS. STATE OF NEVADA, EX REL. COUNTY OF PERSHING, PETITIONER, V. T.P. EBERT, A.F. TROUSDALE, AND J.I. PETERSON, AS COUNTY COMMISSIONERS OF THE COUNTY OF HUMBOLDT, STATE OF NEVADA, RESPONDENTS. ZOE PALMER ODEN, RESPONDENT, V. JOHN I. PETERSON, T.P. EBERT, AND A.F. TROUSDALE, AS THE BOARD OF COUNTY COMMISSIONERS OF HUMBOLDT COUNTY, STATE OF NEVADA; J.W. DAVEY, AS COUNTY CLERK OF SAID HUMBOLDT COUNTY, F. GERMAIN, AS COUNTY AUDITOR OF SAID HUMBOLDT COUNTY; AND F.G. HOENSTEIN, AS COUNTY TREASURER OF SAID HUMBOLDT COUNTY, APPELLANTS.


Appeal from Sixth Judicial District Court, Humboldt County; E. F. Lunsford, Judge.

Moore & McIntosh and Norcross, Thatcher & Woodburn, for Petitioners.

R. M. Hardy, District Attorney of Pershing County, for Petitioners.

Warren & Hawkins and Thos. A. Brandon (Edward F. Treadwell, of Counsel), for Respondents.

By the Court, Sanders, J.:

These cases were argued and submitted as a single case. For convenience we will refer to it as the case of Pershing County against Humboldt County, since it appears that the latter declines to recognize Pershing County as being a legally created and established county of the state.

On March 18, 1919, an act of the legislature was approved entitled “An act creating and organizing the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.” Stats. 1919, p. 75. On the same day, to wit, March 18, 1919, the governor approved an act entitled “An act to amend sections 16 and 19 of an act entitled ‘An act creating and organizing the county of Pershing out of a portion of Humboldt County, and providing for its government, and to regulate the affairs of Humboldt County and Pershing County.'“ Stats. 1919, p. 82.

On the change from the territorial to a state government the several counties of the Territory of Nevada were recognized as legal subdivisions of the state. Since that time the legislature has, by special legislative enactments, changed the boundaries of some, consolidated and divided others, until there now exists seventeen organized counties in the state, including the alleged county of Pershing.

Subject in a state only to constitutional limitation, a county is the merest creature of the legislature. It is recognized by the fundamental law of this state as a body corporate. Const. Nev. art. 17, sec. 1.

1. From the legislature a county derives its name, its extent of territory, its mode and manner of government, its power and rights. It is a creature of the legislature. Called into existence by it, and subject to the restric

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tions named, its whole being may be changed by the same power which created it. Its territory may be cut up and parceled out to the other counties; its common property and common burden apportioned in such manner as to the legislature may seem reasonable and equitable; its existence as a county blotted out; and this all against the will of its inhabitants. Vincent v. County of Lincoln (C. C.) 30 Fed. 751; Comrs. of Laramie County v. Comrs. of Albany County, 92 U. S. 307, 23 L. Ed. 552; Board of Comrs. v. City of Osborne (Kan.) 180 Pac. 233; Cooley, Const. (2d ed.) 192; 11 Cyc. 341-345; 7 R. C. L. 923-926.

2, 3. But, if we clearly interpret the position taken by the learned counsel for Humboldt County in these original proceedings, it is their contention that since the enactment of the initiative and referendum by the legislature and its ratification by the people, the fundamental principle that a state through the legislative department of its government may divide the established territory of a county and give to a new county taken therefrom a corporate existence is “local legislation” within the meaning of the referendum clause of the constitution and the act passed in aid of its execution (Const. Nev. art. 19, sec. 3; Stats. 1915, p. 157), and therefore the act creating and organizing Pershing County out of a portion of Humboldt County is reserved by the referendum law to the people of Humboldt County to signify by their votes, at an election called for that purpose, their approval or rejection of the law, and that the referendum having been duly invoked with reference to the law in question, its operation is suspended until the qualified electors of Humboldt County have been given an opportunity to signify their approval of the law. We fully recognize the rule that the legislature has the power to pass a law to take effect on a contingency expressed in the body of the law, and that the legislature may designate that contingency as a vote of the people of the territory affected by the law. 26 Am. & Eng. Ency. Law, 567. This rule is recognized to a certain

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extent by this court in the case of Hess v. Pegg, 7 Nev. 28, and was expressly applied by the Supreme Court of California to the division of a county in the case of People v. McFadden, 81 Cal. 489, 22 Pac. 851. But it is manifest from section 20 of the act that it was the intention of the legislature that the act creating and organizing the county of Pershing out of a portion of Humboldt County should become effective immediately, without regard to the will of the inhabitants of Humboldt County. This is a matter for the legislature, and it is not for this court to oppose its judgment to that of the legislature in this important particular. Unless the law be in “clear, palpable and direct conflict with the written constitution,” it must be sustained.”

Sec. 3. art. 19, of the constitution provides, inter alia:

“The initiative and referendum powers in this article provided for are further reserved to the qualified electors of each county and municipality as to all local, special and municipal legislation of every character in or for said respective counties or municipalities.”

We concede, or it must be conceded, that an act creating a new county out of territory of an established county relates to and necessarily affects the latter, but we are unable to bring ourselves to the conclusion that such legislation is a local law “in or for” the county out of which the new county is created. But on the contrary, if it be local legislation, as the term is used in section 3, article 19, of the constitution, it is legislation for the new county of Pershing, and not for the old county of Humboldt.

Counties are of purely a political character, constituting the machinery and essential agency by which free governments are upheld, and through which, for the most part, their powers are exercised. Their functions are purely of a public nature. 11 Cyc. 351.

Whatever may be the literal import of the initiative and referendum amendment to the constitution, it must be construed with others of the organic law. It cannot be construed ...


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