The Nevada journal., 1856-01-11

repeating act, Isaac Williamson, ESQ. wa,
appointed commissioner in the premises. anf
reported the city Indebtedness as beipe
$S05l.17, the relator being creditor to the
g amount of $406, for services as a policeman
which Indebtedness was established by the tes.
timony OF witnesses, no scrip having been is
sued to him by the city authoriti. :.
j Upon the coming in of the commissioners
report it is admitted that the Court of Ses.
sions proceeded to and did levy and assess a
poll and property tax sufficient to nav all of
said Indebtedness, only per centum of
which was ever collec' aud paid over to the
creditors. " '-'
by the 10Th section of the act of 1855. ere.
ating board OF supervisors in the counties of
this state, and defining their powers and du-
ties, it is provided that .the board of super.
vlsors shall have and exercise in its county all
jurisdiction and powers other than criminal
conferred by any law on the Court of Sessions
or heretofore exercised by said court under
any statute, or by any statute provided to be
exercised by said court when the same does
not conflict with the provisions of this act.a
Yet compliance by the board of superyi-
sors with the prayer Of the petitioner should
not, 1t seems to me, be had for the following
reasons.
That portion Of the repeating act -eouirine
the appointment of commissioner by the
county judge, is unconstitutional and void
The appointment of commissioner is not a
judicial act and embraces power not con.
ferred by the constitution upon county Judges.
Article Sd of the constitution provides that
the powers of the state government "shall be
divided into three separate departments-the
legislative, the executive and the judicial. and
no person 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 here
ina er expressly directed or permitted"
The county judge is judicial officer ard as
such vested with portion of the powers of the
judicial department of the government. and it
only remains to determine whether powers not
properly belonging to lat department can be
conferred upon him. Section 8th of article 9th
of the constitution provides that the county
judge shall hold the county court, &C., and
'he shall perform such other duties as shall be
required by law," and under this last provision
it is contended that the statute requiring the
county Judge to appoint commissioner is
regular and constitutional. 1t must be borne
In mind that the trainers of the constitution in
the section last above named were defining the
powers OF the county judge as judicial off,
Ger, as a representative of one of the three de-
partmonts OF government, and it is fair to pre-
sumo that IN saying "he shall perform such
other duties as shall be required bv law du-
ties OF aJudlclal character, duties appertaining
to his peculiar department were intended, ANY
other construction would destroy the barrier
which has been thrown around the DOW ers of
tie judiciary by the constitution, and so far as
the county judge is concerned, limit his duties |
only by the will of the legislature
But admitting the power of the county
judge to appoint commissioner, it does
not follow that the 10 ud of supervisors is
clothed with a like power it succe eds only to
the jurisdiction of a civil nature heretofore
conferred upon the Court of Sessions and to
require the board Of supervisors of this county
to exercise power thus specially deIega ed to
the county judge, would be to transcend both
the letter and the spirit of the law
Again 1t has been urged that without the
power OF appointing commissioner The board
can take jurisdiction, audit demands and levy
tax under the statute. The answer is, that
1t Is made the duty of the commissioner to col. /
lect the tax, and even to him thore is no au-
thorlty gwen to enforce payment by coercive
measures. a statute may no doubt be uncoa- |
stitntioual In part and void pro tdnto, and yet
'iAN w. w OLuCl pIUNlSlOuS, DuL WHICH as IN !
the present instance, that portion which is un-
constitutional tends to render and does rem.
DER all the other provisions Intellectual and in. /
operative for the object had in view by the |
Legislature, no good result can follow from an
attempt on the part Of the courts to enforce
It's naked provisions, and it will not be made.
Again. the board of supervisors is created /
for the purpose Of controlling and managing
the aifAirs OF the coanty, as is clearly evinced /
by the nature of the powers conferred by stat
ute as well us by the provision of the const-
tuition authorizing the law creating it, and it |
may we'll be doubted whether IN giving to the
board the civil jurisdiction heretofore conferred
on the Court Of Sessions anything more was
intended than the general jurisdiction relating
to county affairs / incline to the opinion that !
the jurisdiction conferred upon the county
Judge and Court of Sessions, admitting its va
lidlty, was in the nature of personal trust,
and will not pass by a provision of a general
nature. Smiths Commentaries, page 7l3.
1t is unnecessary for me to discuss the other
objection raised by respondents answer and
the agreed statement, for if l am correct in
the above positions, they control the whole
case.
Motion for percmptcry mandamus denied