Opinion of the Court--Earll, J.

heretofore considered, and it has been seen that there it cannot be clearly found, as applicable to a case similar to the present; wherefore the office could be properly filled by the legislature."

This seems to us to be a correct exposition of the constitutional provisions involved, and is fully sustained by judicial decisions of other states in whose constitutions similar provisions are found. (Davis v. The State, 7 Md., 151; Mayor &c. of Balt. v. State, ex. rel. The Board of Police of Balt., 15 Md., 376; People v. Bennett, 54 Barb., 481; The People v. Hurlbut, 24 Mich., 44.)

The next objection is that the act is unconstitutional because it constitutes certain county officers ex officio city officers. By the eleventh section of the act the treasurer of Ormsby county is constituted ex officio city treasurer; by the twelfth section the assessor of the county is constituted ex officio the city assessor; by the thirteenth section the district attorney of the county is constituted ex officio the city attorney; by the fourteenth section the sheriff is constituted ex officio the city marshal; and by the fifteenth section the county clerk is constituted ex officio the city clerk.

It is difficult to distinguish the principle involved in this objection from the one just considered, and if our conclusion is correct in respect to the power of the legislature to make the provisional or initiatory appointments therein referred to, it follows that it 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. The duties imposed upon them as city officers are of the same character as those which they are respectively required to perform as county officers, and there is no constitutional inhibition against the exercise of the duties of a municipal office by a person holding a county office, when the duties of each are of the same character. But it is claimed that the legislature, by conferring these city offices upon the county officers, have "permanently deprived the citizens of the state, residing within the municipal subdivision, of a fundamental right: the right of local self-government."

Opinion of the Court--Earll, J.

The existence of a fundamental right of municipal local self-government, is necessarily dependent upon some constitutional grant or manifest implication, neither of which can be found in the constitution of this state. Hence, a municipal corporation, in this state, is but the creature of the legislature, and derives all its powers, rights and franchises from legislative enactment or statutory implication. Its officers or agents, who administer its affairs, are created by the legislature, and chosen or appointed in the mode prescribed by the law of its creation. (People v. Coon et al., 25 Cal. 649; Giovanni Herzo v. San Francisco, 33 Cal. 134; Payne et al. v. Treadway, 16 Cal. 220.) Nevertheless, the principle of local self-government has always been recognized, to a certain extent, by the legislature of this state in the passage of statutes creating and providing for the government of municipal corporations, and the selection of officers and agents to administer the affairs of such corporations has generally been intrusted to the electors of the respective municipalities, or their appointment committed to the authorities thereof; and it cannot, with propriety, be said that the legislature have wholly disregarded this principle in the passage of the act under consideration, because by section 3 of the act the entire government of the city is vested in a board of trustees, to consist of five members, who are required to "be actual residents and owners of real estate in the city, and to be chosen by the qualified electors thereof."

The third objection to the constitutional validity of the act is: "It is a special law regulating the jurisdiction of justices of the peace.

This objection is directed to the sixteenth section of the act, by which a recorder's court is created for the city, and the justice of the peace of Carson township is constituted

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ex officio the city recorder, with the like jurisdiction as commonly conferred upon recorder's courts in municipal corporations, subject to appeals taken to the district court as from justices of the peace." It is quite apparent that this provision of the act has no reference whatever to the jurisdiction of justices of the peace. The offices of justice

Opinion of the Court-Earll, J.

of the peace and of city recorder are distinct offices, though, under the act of incorporation, both offices may be held by the same person; and there being no constitutional inhibition against the exercise of both by the same person, we are unable to perceive any force in the objection. (Merrill v. Gorham, 6 Cal. 41; People v. Edwards et al. 9 Cal. 286; People v. Durick, 20 Id. 94.)

The fourth objection urged against the validity of the act is: "It diverts penal fines from the school fund."

By the eighteenth section of the act it is provided: "All taxes, fines, forfeitures, or other moneys collected or recovered by any officer or person, under or by virtue of the provisions of this act, or of any valid ordinance of the city, shall be paid by the officer or person collecting or receiving the same to the city treasurer. *** All such moneys shall be placed by the city treasurer in a fund to be known as the general fund, and shall be so kept except as paid out upon proper warrants. It is argued on behalf of relator that the act in this respect is in violation of that part of section three of article eleven which declares: "All fines collected under the penal laws of the state*** shall be, and the same are, hereby solemnly pledged for educational purposes, and shall not be transferred to any other fund for other uses. The answer to this is, that this clause of the constitution has no application to fines recoverable for violations of city ordinances, but applies solely to fines recoverable under the general laws of the state. There is a broad distinction between the penal laws of the state and penalties prescribed by the ordinances of municipal corporations, and this provision of the constitution manifestly means such fines only as are collected under the penal laws prescribed by the lawmaking power of the state, and cannot, by any legal or constitutional rule of construction, extend to penalties incurred for violation of the ordinances of municipal corporations.

The fifth objection is that the law is void because “it is a special law in a case where a general law exists and can be made applicable;" and it is therefore contended that the act was passed in violation of that clause of the twenty-first section of article 4 of the constitution, which declares: "Where

Opinion of the Court--Earll, J.

a general law can be made applicable, all laws shall be general and of uniform operation throughout the State." The argument in support of this proposition is that, inasmuch as a general law existed at the time of the passage of the act in question (Stat. 1873, 66) providing for the government of cities and towns, and the town of Carson having been organized under its provisions, it is, therefore, practically demonstrated that a general law can be made applicable. The principle involved in this proposition cannot be distinguished from that decided in Hess v. Pegg, 7 Nev. 23, and also in that of Evans v. Job, 8 Nev. 323. The same argument was urged against the validity of the acts respectively involved in those cases, and the same authorities cited in support thereof as are presented here; there was an elaborate opinion in each case in which all the authorities cited by counsel for the relator, as well as others bearing upon the subject, were fully reviewed, the result of which is an exposition of this provision of the constitution adverse to the position of relator, and the principle thus decided must now be regarded as the settled law of this state.

There is, however, another clause of the constitution which, in our opinion, clearly recognizes the authority of the legislature to create municipal corporations by special enactment. We refer to section one of article eight, which provides that "the legislature shall pass no special act in any manner relating to corporate powers, except for municipal purposes; but corporations may be formed under general laws; and all such laws may, from time to time, be altered or repealed." It is true, counsel for relator contends that this interpretation of the section is inconsistent with, and in violation of, section eight of the same article, which reads as follows: "The legislature shall provide for the organization of cities and towns by general laws, and restrict their powers of taxation, assessment, borrowing money, contracting debts, and loaning their credit, except for procuring supplies of water." It is argued that the two sections can be harmonized only upon the theory that section eight requires all towns and cities to be organized under general laws, while section one merely "permits

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special legislation relating to, or concerning the powers of municipal corporations which were organized and existing at the adoption of the constitution." This interpretation of counsel for relator is opposed, not only by judicial decisions, but by the practice of the state ever since the adoption of the constitution, and in our opinion, cannot be sustained upon any established principle of constitutional interpretation. In this country, the creation of corporations, whether private or municipal, is the exercise of legislative power, and until comparatively a recent period, both kinds of corporations were created singly, by special acts of legislation. It, therefore, follows that the authority of the legislature to create corporations by special laws is limited only by the express or necessarily implied restrictions of the constitution. We are, therefore, of opinion that it was not the design of the framers of the constitution, by these provisions, to restrict the power of the legislature, except in respect to corporations other than municipal. "The people, in framing the constitution, committed to the legislature the whole law-making power of the state, which they did not expressly or impliedly withhold. Plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden." (People v. Draper, 15 N. Y. 543; see also Bank of Chenango v. Brown, 26 N. Y. 469.) There is nothing in all this in anywise in conflict with the authorities cited in support of the position of relator. The decisions cited from the reports of Ohio, Kansas, and Iowa, are all based upon constitutional provisions, which in this respect are entirely unlike the constitution of this state.

The decisions of Ohio and Kansas rest upon the same constitutional provisions, which are as follows: "The general assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws, but all such laws may, from time to time, be altered or repealed." (Const. Ohio, article 13, sections 1 and 2; Const. Kansas, article 12, section 5.) The courts of those states.