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State v. Moran

December 31, 1919

THE STATE OF NEVADA, EX REL. LESTER D. SUMMERFIELD, AS DISTRICT ATTORNEY OF WASHOE COUNTY, NEVADA, PETITIONER, V. THOMAS F. MORAN, AS ONE OF THE JUDGES OF THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, RESPONDENT.


Lester D. Summerfield, District Attorney (in pro. per.), and W. M. Kearney, Deputy District Attorney, for Petitioner.

W. M. Kennedy, E. W. Cheney, and LeRoy F. Pike, Amici Curiae, for Respondent.

By the Court, Coleman, C. J.:

This is an original proceeding in mandamus.

The facts out of which the proceeding grows are these: In the year 1915 one Adrian C. Wheeler was convicted of a crime in the district court of Washoe County, Nevada; the respondent presiding. Thereafter the respondent, as such judge, pronounced judgment and sentence upon said Wheeler, whereby it was ordered, adjudged, and decreed that he pay a fine, and that upon default in the payment of said fine he be confined in the county jail; and as a part of said judgment it was ordered that such sentence and judgment be stayed and suspended during good behavior, and until a further order of the court. The said Wheeler has paid no part of said fine nor served any part of said sentence. The purpose of this proceeding is to compel the respondent judge to enforce the payment of the fine, and in default of such payment to commit the said Wheeler to jail in pursuance of the sentence and judgment of the court.

The court in suspending the judgment and sentence acted in pursuance of section 7259 of the Revised Laws of 1912, which provides:

“Whenever any person shall be convicted of any crime except murder, burglary in the first degree, arson in the first degree, robbery, carnal knowledge of a female child under the age of ten years, or rape, the court may

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in its discretion, at the time of imposing sentence upon such person, direct that such sentence be stayed and suspended and that the defendant be released from custody on such conditions as the court may impose until otherwise ordered by such court.”

It is the contention of the petitioner that the court was without authority to suspend the sentence and judgment of the court, for the reason that the statute in question is unconstitutional, null, and void.

1. The writer of this opinion, while district judge, on several occasions suspended sentence, no objection having been raised as to the constitutionality of the statute in question; but on careful examination of the question here presented he is convinced that such action was without authority of law. Article 5, section 13, of the Constitution of Nevada, authorizes the governor “to suspend the collection of fines and forfeitures, and grant reprieves for a period of sixty days”; and section 14 of the same article of our constitution provides:

“The governor, justices of the supreme court and attorney-general, or a major part of them, of whom the governor shall be one, may upon such conditions and with such limitations and restrictions as they may think proper, remit fines and forfeitures, commute punishments and grant pardons after convictions, in all cases, except treason and impeachments, subject to such regulations as may be provided by law, relative to the manner of applying for pardons.”

2. We see no way to escape the conclusion that the authority to suspend the collection of a fine can be exercised only in the manner provided in the constitution. To hold, in the face of the provisions mentioned, that the courts also can suspend the collection of a fine would be to override our constitution; for, while there is nothing in the constitution which expressly provides that the legislature may not confer this authority upon the courts, it must necessarily follow that where the constitution enumerates certain cases in which the collection of a fine may be suspended, or certain methods

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whereby it may be done, or confers upon a certain official or officials such power, the power so conferred must be held to be exclusive. This view is not open to debate. In State v. ...


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