Statement of Facts.

incorporating Carson city, had the power to constitute the designated county officers city officers, and to impose upon them the executive or ministerial duties of the municipality, corresponding to their respective duties as county officers.

MUNICIPAL CORPORATION.--A municipal corporation, in this state, is but the creature of the legislature, and derives its powers, rights and franchises from legislative enactment or statutory implication.

OFFICERS OF MUNICIPAL CORPORATION.-The officers of a municipal corporation are created by the legislature, and are chosen or appointed in the mode prescribed by the law of its creation.

IDEM-CITY RECORDER.-The provision of the act creating the office of city recorder has no reference to the jurisdiction of justices of the peace. The offices are distinct, though under the act of incorporation both offices may be held by the same person. SECTION THREE OF ARTICLE ELEVEN OF THE CONSTITUTION CONSTRUED.-The provisions of section 3 of article XI of the constitution providing that all fines collected under the penal laws of the state shall be pledged to educational purposes, has no application to fines recoverable for violations of city ordinances, but applies to fines recoverable under the general laws of the state.

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SECTION TWENTY-ONE OF ARTICLE FOUR OF THE CONSTITUTION-The act incorporating Carson city is not in violation of the provisions of section twenty-one of article four of the Constitution, which declares, "Where a general law can be made applicable all laws shall be general, throughout the State." Evans v. Job (8 Nev. 323), affirmed. MUNICIPAL CORPORATION CREATED BY SPECIAL LAW.-Section one of article eight of the constitution clearly recognizes the authority of the legislature to create municipal corporations by special enactment. This interpretation is not inconsistent with the provisions of section eight of the same article. City of Virginia v. The Chollar-Potosi G. & S. M. Co. (2 Nev. 86), affirmed.

POWERS OF A MUNICIPAL CORPORATION.-A municipal corporation possesses and can exercise such powers only as are expressly conferred by the law of its creation, or such as are necessary to the exercise of its corporate powers, the performance of its corporate duties and the accomplishment of the purposes for which it was created.

PART OF A STATUTE UNCONSTITUTIONAL.-When part of a statute is unconstitutional it will not authorize the court to declare the remainder void unless all the provisions are connected in subject-matter depending on each other.

THIS was an original proceeding in the Supreme Court in the nature of a writ of quo warranto to determine the right of S. T. Swift, sheriff of Ormsby county, to hold and exercise the office of marshal of Carson city, under the act of the legislature approved February 25, 1875, incorporating said city.

VOL. XI.-9

Argument for Relator.

Robert M. Clarke, for Relator.

The power to ap(Const. art. 5, sec.

I. The act of the legislature to incorporate Carson city is unconstitutional for the reason that it appoints the officers of the city. (Stats. 1875, 88, sec. 4.) point to office is an executive power. 1-8; Const. art. 15, sec. 10; 4 Abbott's Pr. 35; 1 Cranch, 137; State v. Kennon et al., 7 Ohio State, 347.) Article III of the Constitution forbids the legislature to exercise it. (Art. III, Const. Nev.)

II. The act constitutes the county officers ex officio city officers, and thus permanently deprives the citizens of the state residing within the municipal subdivision of a fundamental right, to wit: the right of local self-government. (Const. art. 2, sec. 1; Const. art. 4, sec. 32; Cooley's Const. Lim. 34, 35; 55 New York, 55.) To permit the people of the entire county to choose the officers of Carson city, is as gross a denial of self-government as to permit the people of the entire state to choose the officers of Ormsby county.

III. The act is unconstitutional in this. It is a special law regulating the jurisdiction of justices of the peace. (Const. art. 4, sec. 20.) It confers additional and exceptional powers and duties upon the justice of Carson township.

IV. The act is unconstitutional in this: It diverts penal fines from the school fund. (Art. 11, Const., sec. 3.)

V. The act is unconstitutional in this: It is a special law in a case where a general law exists, and can be made applicable. (Act Feb. 21, 1873, laws 1873, 66–74, in Const. Nev., art. 4, sec. 21; Evans v. Job, 8 Nev. 322; Ex parte Pritz, 9 Iowa, 35, 36; Town of McGregor v. Baylis, 19 Id. 47-48.) The general law exists, and is in force. (Laws 1873, 66.) Carson city was organized under it when the act was passed.

VI. The act is unconstitutional in this: It imposes no restrictions upon the powers of taxation, assessment, borrowing money or loaning credit, whereas, the constitution, in terms, requires this to be done. (Const., art. 8, sec. 8; Stats. 1875, 90, 91, 96; Cooley Const. Lim. 39, 40; Dil

Argument for Relator.

lon Munic. Corp., sec. 27, 134; Foster v. City of Kenosha, 12 Wis. 616; Rogan v. City of Watertown, 30 Id. 264–65; Brunson v. Mayor of Albany, 24 Barb. 495; Bank of Rome v. Village of Mosell, 18 N. Y. 41.) The power to borrow money, etc., exists under art. 8, sec. 8, Const.; 30 Wisconsin, 264, 265.

VII. The act is unconstitutional in this: It is a special law for the organization of a city, the constitution requiring all such laws to be general. (Const. Nev., art. 8, sec. 8; Const. Ohio, art. 13, sec. 1-2-6; 20 Ohio St. R. 34-35, 36, 37; Const. Iowa, art. 8, sec. 1; 9 Iowa, 30, 32– 33; 19 Id. 43, 46; Const. Kansas, art. 12, sec. 5; 4 Kansas, 141-42-43-47-48; 9 Id. 695-96; City of Virginia v. Chollar-Potosi Co., 2 Nev. 86-89, 90-91.)

It is a rule of construction, that the whole constitution may be examined with a view to arriving at the true meaning of any part. (Cooley's Const. Lim. 57-58; Broom's Maxims, 521.) It is also a rule of construction, that effect is to be given, if possible, to the whole instrument and to every section and clause. If different portions seem to conflict, the court must harmonize them. (Cooley Const. Lim. 57-58; 24 Cal. 539.) To apply the foregoing rules of construction to the case in hand. As we have seen the neces'sary effect of section 8, article 8, of the state constitution is to forbid the incorporation of towns and cities by special laws. To require a thing to be done by general laws, is to forbid it to be done by special law. (See cases cited in support of point VII.) To hold that section one authorizes the organization of cities and towns by special laws, is to give to the section an interpretation inconsistent with, and destructive of section eight; is in effect to say, that section eight requires towns and cities to be organized by "general' laws, and that section one permits them to be organized by "special" laws, which is contradictory and absurd.

To harmonize sections one and eight, and give to each effect, it is only necessary to interpret each according to the ordinary import of the words employed, and the manifest spirit of the whole instrument.

Section eight requires towns and cities to be organized

Argument for Respondent.

under general laws, section one permits special legislation relating to, or concerning the powers of, municipal corporations which were organized and existing at the adoption of the constitution.

Ellis & King, for Respondent.

I. The doctrine of local self-government, as applied to a municipal corporation created under our state constitution, cannot be found in our state constitution. The people have no natural right of voting. A legislative office may be created and filled.

The constitution must in terms, or by necessary implication at least, limit the power of the legislature in this, as well as in all other matters, otherwise the legislature has the power to do that which has been done in this case. (Smith's Com. secs. 179–80; 5 Nev. 125–7; Id 293–4; Bull v. Snodgrass, 4 Nev. 524; Const. N. Y. 162.)

II. The constitution of Nevada only provides a general system of filling vacancies, giving to the governor special powers in certain cases, and recognizing that the laws may provide also for filling certain vacancies. Here if there was a vacancy it was provided for by law (Clark v. Irwin, 5 Nev. 111), and the filling of such vacancy was only temporary and provisional. (Smith's Com. secs. 179-80.) The legislature has unlimited power in any matter of legislation unless specifically limited. (Gibson v. Mason, 5 Nev. 286, 293, 299, 300; Ash v. Parkinson, 5 Id. 15; Evans v. Job, 8 Nev. 337-9; 7 Nev. 30.)

III. The act does not confer jurisdiction upon any justice of the peace; that remains intact under the general laws, but is mere descriptio persona, and simply designates who shall be recorder.

IV. The provisions of art. 2, sec. 3, of the constitution of Nevada, apply solely to fines recoverable under general laws, regulating fines for misdemeanors, and apply uniformly to the whole state, and not to fines for the violation of city ordinances.

V. Under art. 8, secs. 1 and 8 of the constitution of this state, a corporation for municipal purposes may be created by special act. (Cal. Const.; 5 Nev. 124; Chollar

Opinion of the Court-Earll, J.

Potosi v. Virginia City, 2 Nev. 87; Hess v. Pegg, 7 Id. 23; Evans v. Job, 8 Id. 322; Clarke v. Irwin, 5 Id. 111.) But this is a general law as contra-distinguished from a special law. Smith's Com., secs. 802-4; People v. Potter, 35 Cal. 115; 3 N. H. 321; 17 Id. 547; 12 Pick. 344; 9 Greenl. 56; 5 Id. 511; 5 Mass. 268; 29 Ind. 409; Young v. Hall, 9 Nev.; Const. N. Y.; U. S. Trust Co. v. Brady, 20 Barb. 119; People v. Bowen, 21 N. Y. 517.)

VI. An assessment for grading a street in the town is not a tax within the meaning of article 8, section 8, and restricted by the act. (Laws 1875, p. 90, sec. 10, clause 2; 28 Cal. 355, et seq., and pp. 361, 367, 372.) And limitation is omitted from the act; the responsibility is upon the legislature, and is not a matter for judicial correction. (Id. 367; 18 N. Y. 42; Bank of Rome v. Village of Rome, 26 N. Y. 69-70.) A license is not a tax, and the imposition of a license is not taxation within the meaning of article 8, section 8, of the Const. (34 Cal. 448-9; 4 Cal. 46; 1 Cal. 252-54; Anderson v. Doll, 27 Cal. 607; Attorney-General v. Squires, 14 Cal. 12.) But there is a limitation upon the power of taxation, properly so called, and upon the powers of the board contracting indebtedness, borrowing money or loaning credit. (Laws 1875, 90, secs. 10 and 31.) Money cannot be borrowed nor credit loaned without incurring indebtedness. (Mason v. Gibson, 5 Nev. 300.)

VII. But if there is no limitation, as claimed, and there is no power to levy assessments, still the act is valid and complete, and useful in other respects, and must stand so far as the information is concerned. (34 Cal. 457; 17 Id. 554; 18 Id. 68; 22 Id. 663; 5 Nev. 131; 8 Id. 342, and cases cited; 3 Id. 180; 32 Md. 369; 31 How. Pr. 289, 343; People v. Rochester, 50 N.Y. 553.)

By the Court, EARLL, J.:

This is a complaint or information by the attorney-general of this state, in the nature of a quo warranto, instituted at the relation of Joseph Rosenstock, to determine the right of the respondent to hold and exercise the office of marshal of Carson city. The respondent demurred to the complaint