Ex Parte Wonacott , 27 Nev. 102 ( 1903 )

Petitioner applies for a writ of mandate requiring respondents, as commissioners of Nye county, to carry out the provisions of an act passed by our last legislature (Stats. 1903, p. 198, c. 104) which directs that sittings of the district court shall be held at the town of Tonopah whenever the people of that portion of the county lying nearer or more conveniently situated to that town than to Belmont, the county seat, shall be accommodated thereby, or when such sittings, in the opinion of the district judge, shall be more economical to the litigants. We quote:

"SEC. 4. The sittings of the district court, or session thereof, held in the town of Tonopah, shall be the same in validity and effect as if held in the town of Belmont, and shall be so held for the accommodation of the people, for the accommodation and convenience of litigants, witnesses and jurors, and for the purpose of giving greater publicity to the proceedings of such court than if held in the town of Belmont.

"SEC. 5. The county commissioners of Nye county shall provide the proper rooms for the use of the court and the clerk."

Respondents have failed to provide the rooms designated. Petitioner asserts, and it is conceded, that the town of Belmont, the county seat, is distant from the town of Tonopah 50 miles, and 85 miles from Austin, in Lander county, the nearest and most convenient railroad station; that there is no telegraphic or telephone service between Belmont and the world at large, and especially with Tonopah; that the only communication between the latter place and Belmont is by United States mail, which is forwarded by the way c and from there through several counties by rail to Austin, and thence by stage to Belmont, requiring several days in transit; that the population of Nye county is about 5,000 inhabitants, and, of these, that about 4,000 reside in or nearer to Tonopah than to Belmont; that all sittings of the district court are held at Belmont; and that if a part of them are held at Tonopah, as provided for in the act mentioned, a great saving will be made to the county in the payment of fees and mileage to jurors, and a large number of litigants and persons having business with the district court will be accommodated.

The question involved is controlled by article VI, sec. 7, of our state constitution, which requires that "the terms of the Supreme Court shall be held at the seat of government, and the terms of the district court shall be held at the county seats of their respective counties; provided, that in case any county shall hereafter be divided into two or more districts, the legislature may, by law. designate the place of holding court in such districts." As shown by reference to the constitutional debates, the opponents of this section failed in a strong effort to prevent its insertion, and after objection, discussion, and due consideration it was inserted by the trainers, and adopted by the people in their sovereign capacity, and became the supreme law of the state, binding our legislatures and courts until abrogated or modified by the same august power by which it had been created. This statute does not attempt to create or name a new district, nor to divide the county, nor to fix by any definite boundary the part of the county from which judicial business would be heard and determined at Tonopah.

Although there are other towns in the state, not connected with the outer world by rail or wire, much more distant from the county seat than Tonopah, and for the people in which attendance upon court entails even greater inconvenience, we are not unmindful of the hardships to which a large portion of the citizens of Nye county are subject, and which the act was intended to relieve; and, although we appreciate the purpose for which the statute was passed, questions regarding the expediency and wisdom of the constitution were settled by its adoption, and we must not be led by our sympathies to set aside any of its requirements.

We see no escape from the conclusion that the proceedings of the court during its session away from the county seat would be void, and consequently that it would be vain and useless for the respondents to provide a courtroom and clerk's office elsewhere. It has frequently been held that courts have no power to act away from the place fixed for their terms, and that even consent cannot confer jurisdiction in such cases. (Ex parte Gardner, 22 Nev. 284, 39 P. 370. citing State v. Roberts, 8 Nev. 239, and other cases.)

That a constitutional clause designating the county seat for the session of the district court cannot be controlled or avoided by a statute naming another place is elementary.

The application for the writ is denied, and the costs are taxed against the petitioner.