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Galloway v. Truesdell

January 5, 1967

WILLIAM W. GALLOWAY, DULY ELECTED AND ACTING TREASURER OF CLARK COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA, APPELLANT,
v.
ROBERT I. TRUESDELL, RESPONDENT



The opinion of the court was delivered by: Craven, District Judge.

OPINION

The question presented for determination on this appeal is the constitutionality of Section 122.070 of the Nevada Revised Statutes, which provides as follows:

'122.070 Licensed, ordained ministers may solemnize marriages; certificates of permission to perform marriages; issuance, revocation; temporary replacements.

'1. Any licensed or ordained minister in good standing within his denomination, whose denomination, governing body and church, or any of them, are incorporated or organized and established in the State of Nevada, may join together as husband and wife persons who present a marriage license obtained from any county clerk of the state, if such minister first obtains a certificate of permission to perform marriages as provided in this section. The fact that a minister is retired shall not disqualify him from obtaining a certificate of permission to perform marriages if, prior to such retirement, he had active charge of a congregation within this state for a period of at least 3 years.

'2. Any application for such certificate shall be filed by the minister with the judge of the district court of the county in which such minister resides, and shall contain information showing the date of licensure or ordination, or both, of the minister, the name of the denomination, governing body and church, or any of them, with which he is affiliated. Each application shall be accompanied by a copy of the denominational standing of such minister, a copy of which the district judge shall file with the secretary of state.

'3. For the purpose of determining the qualifications of any minister who has filed an application for a certificate, the district judge with whom such application has been filed may request that:

'(a) The congregation of such minister furnish any evidence which the judge considers necessary or helpful, and the congregation shall furnish such evidence.

'(b) The district attorney and the sheriff conduct an investigation of the background and present activities of such minister.

'4. If the judge of the district court approves an application, he shall notify the secretary of state of such approval within 10 days thereafter. After receipt of such notification, the secretary of state shall immediately certify the name of such minister to each county clerk and county recorder in the state.

'5. A certificate of permission shall be issued only for the period of July 1 to June 30, inclusive, and if issued after July 1 shall be valid only until the following June 30. All certificates may be renewed annually.

'6. If any minister to whom a certificate of permission has been issued severs ties with his congregation or moves from the county in which his certificate was issued, the certificate shall expire immediately upon such severance or move, and the trustee, warden or other officer of the congregation authorized to speak for it shall, within 5 days following the severance or move, give written notice of the fact of such severance or move to the district judge who issued the certificate.

'7. Any district judge who has issued a certificate of permission to a minister may revoke such certificate for good cause shown after hearing.

'8. If the certificate of any minister is revoked as provided in subsections 6 and 7, the district judge shall inform the secretary of state of such fact, and the secretary of state shall immediately remove the name of such minister from the list and shall notify each county clerk and county recorder of such fact.

'9. A temporary replacement for a licensed or ordained minister certified pursuant to this section may solemnize marriages pursuant to subsection 1 during such time as he may be authorized to do so by a district judge in the county in which he is a temporary replacement, for a period not to exceed 90 days. The minister whom he temporarily replaces shall provide him with a written authorization which shall state the period of time during which it is effective.'

More particularly the question is whether or not N.R.S. 122.070 grants powers to, and imposes duties upon, District Judges that are non-judicial in character, not incidental to the Judicial function, and are therefore unconstitutional and invalid delegations of ministerial powers and duties.

In the Court below appellant sought a Declaratory Judgment, Injunction and Recovery of Fine and Forfeiture pursuant to Sections 122.070, 122.260*fn1 and 122.270*fn2 of the Nevada Revised Statutes. Appellant alleged the Respondent had represented himself to be an ordained Minister of the Nevada Mission Fellowship; that he actually performed civil marriage ceremonies in the 'Chapel of the Bells' located at 2233 Las Vegas Boulevard South, Las Vegas, Nevada, without any legal authority because he had failed to obtain a certificate of permission to perform marriages as required by, and in violation of, the statute (N.R.S. 122.070).

Respondent admitted performing marriage ceremonies without following the statutory steps outlined to obtain a certificate of permission to perform marriages. An Order to Show Cause was issued, ordering the Respondent to appear before the District Court, and show cause why he should not be enjoined from performing civil marriages in Clark County, Nevada; why he should not be adjudged guilty of violating the statutes relating to the performance of civil marriage ceremonies and fined in the sum of $500.00 for every unauthorized ceremony; and why he should not be jailed until he paid such fine and forfeiture.

In its decision the Court below held that the statutory regulations and directives to be followed to secure a certificate of permission to perform marriages were contrary to the provisions of the Nevada Constitution defining the jurisdiction and judicial functions of the District Courts.

This appeal is taken from the order holding the statute unconstitutional, and refusing to grant an injunction.

I.

The division of powers is probably the most important single principle of government declaring and guaranteeing the liberties of the people. This subject is thoroughly and comprehensively explored by the late Honorable Arthur T. Vanderbilt in his book, 'The Doctrine of the Separation of Powers' (Pub. 1953 by University of Nebraska Press).

A more worthwhile recomendation to judges and lawyers alike cannot be made to convince all who will read the book than that the division of powers is the most important principle of government. The booklet embodies three lectures given by the late Honorable Arthur T. Vanderbilt, former Chief Justice of the Supreme Court of New Jersey.

In the Foreword of the booklet it is stated: '* * * The extent to which a country can successfully resolve the conflict between the three branches of government is to a very great extent the measure of that country's capacity for self-government.'

In the Introduction the author states: 'In recent decades it has been fashionable in certain quarters to pronounce funeral orations over the remains of the doctrine (of separation of powers), but despite these attempts at burial it retains a remarkable vitality that tends to increase the more it is threatened. Instinctively people seem to sense in its violation, even in hours of danger, a threat to much that they hold dear in their daily life and they recognize in its observance the possibility of attaining the reign of law which alone can insure the freedom so essential to both the individual and to our civilization. * * *

'* * * Individual freedom and the progress of civilization are attainable, but only if each of the three branches of government conforms to the constitutional principles of the separation of powers. This they will do only if the people so will. The problem in the first instance thus becomes one of popular education in the fundamental principles of free government. Among these principles there is none more significant today than the doctrine of the separation of powers.' (Bracketing added.)

The Constitution of the State of Nevada distributes governmental powers into the Legislative, Executive and Judicial departments; and each department is separate from the others. Article 3, Section 1, of the Nevada Constitution provides: 'The powers of the Government of the State of Nevada shall be divided into three separate departments,-the Legislative,-the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases herein expressly directed or permitted.' (Emphasis supplied.)

This section establishes the concept of tripartite government. The Constitution confirms and firmly fixes this principle of separation of governmental powers by creating, in Article 4, Article 5 and Article 6, a legislature, an executive and a judiciary. In the opening words of each Article's first section the whole power there granted is lodged in that branch, e.g., Article 6, Section 1, states, 'The Judicial power of this State shall be vested in a Supreme Court, District Courts, and in Justices of the Peace. * * *'

The separation of powers; the independence of one branch from the others; the requirement that on department cannot exercise the powers of the other two is fundamental in our system of government.

Montesquieu has recited the reasons for the desirability of having the governmental powers separate. In City of Enterprise v. State, 156 Or. 623, 69 P.2d 953 (Oregon 1937), he is quoted: '* * * there can be no liberty * * * if the power of judging be not separated from the legislative and executive powers. * * * Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would ...


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