Torreyson Summerfield and F. H. Norcross,
for Relator:
I. Mandamus is the proper remedy to be invoked by relator. It was and is the specific legal duty of respondents to allow relator's claim, and they were not clothed with discretionary authority in the premises. (Stats. 1899, p. 60; Mau v. Liddle, 15 Nev. 271 ; Humboldt Co. v. Churchill Co., 6 Nev. 30 ; State v. Blossom., 22 Nev. 71 .)
II. That relator's cause is attainted by fraud is an unwarranted assumption of respondents. It is based upon undisputed evidentiary matters which brings the claim strictly within the scope of the act of March 9, 1899. "So far as the courts are concerned, the statute must be taken as expressing the free will and wish of the legislature, whatever may have been the means employed to secure its adoption, and irrespective of any agreements or understanding had between members. Such matters the courts have no power of reaching." ( Humboldt Co. v. Churchill Co., 6 Nev. 30 .)
III. The former decisions relating to the furnishing of the metallic furniture by relator to Washoe county cannot properly be considered in this case. They were rendered under the law as it then existed and upon facts, principally agreed upon, having applicability to the law at that time. The original contracts were held to be fraudulent simply because they were violative of the provision of law requiring advertisement in all cases where the consideration amounted to $500. The act of 1899 is not limited in its operation by the amount or the value of property furnished. The evidence before the appraisers shows clearly that relator was never guilty of actual fraud. The act of 1899 provides a procedure to compel counties to do justice and is in harmony with the general doctrine of the courts that municipalities must do justice. ( Norwood v. Baker, 172 U. S. 269 ; McConville v. St. Paul, 77 N. W. 993.)
IV. The act of 1899 is definitive of the nature and character of the claims which it affects and affords a remedy
for and the claim of relator is squarely embraced within the statutory definition.
V. The act of 1899 itself defines the class of claims which it embraces. It must be clearly apparent that if the act was intended to affect valid and existing claims at the time of its passage the act would have been superfluous and wholly unnecessary. It seems hardly probable that the court will ascribe to the legislature an intent to do a useless thing by enacting a superfluous law. The authority of the legislature by general law to provide for the adjustment and the allowance and payment of claims against counties which are not enforceable under existing law is practically unquestioned. These curative laws have many times received the sanction of the courts. ( Ritchie v. Franklin Co., 22 Wall, 67; Steines v. Franklin Co., 48 Mo. 175 .)
VI. Counsel state that the transaction out of which the furniture in question was delivered to Washoe county, has thrice been adjudged fraudulent. But we do not understand that this court or the lower court ever found actual fraud or corruption to have existed in the transaction. The facts, proven and admitted, warranted the court in declaring that the same constituted constructive fraud, further than this we do not understand that the court could, or did find, under the pleadings and the proofs. If actual fraud exists in this case it certainly then is not of the ordinary variety. Here was a very valuable lot of office furniture sold and delivered to Washoe county. The county needed and wanted it for the preservation of its public records. Prior to its sale and delivery to the county the grand jury had called the commissioners' attention to the need of such furniture, and recommended that such need be supplied. The commissioners carried out the suggestion of the grand jury and caused to be manufactured and delivered by relator the furniture now in the clerk's office of Washoe county, and no one has yet been found to come forward and say that the furniture was not what was wanted or was not worth every dollar that was ever asked for it.
VII. The power of the legislature is fixed by the constitution, and courts cannot enlarge or abridge that power. There
is nothing in the constitution of this state which says that the legislature may relieve one class of persons from the effect of certain acts, if occasioned in a certain way, and not in another. There is nothing in the constitution which gives the judicial branch of government the authority to determine what class of laws ought to be passed and what not, or to determine the justness or injustness of laws, or whether this law or that is up to the proper moral standard. This court, in a very able opinion by Chief Justice Lewis, found in 5 Nev. 283-314 , discusses the powers and prerogatives of the three coordinate branches of our state government. We quote from that opinion, beginning on page 293: "But, notwithstanding this very evident investment of the legislature with the sovereign and omnipotent political power of the people, it has been assumed by some judges, and so argued in this case, that the courts have the right to annul an act of the legislature upon the sole ground that it is unjust; or, as it is put in this case, opposed to natural justice; or, by some judges, as against the `great principles of eternal right.' We believe, however, that such doctrine cannot be reconciled with a correct view of our form of government and the distribution of its powers. Whence this power in the judiciary to pass upon the justice or injustice, the expediency or inexpediency of an act of a coordinate branch of the government? It is not given in the constitution. The legislative power is not limited in that instrument to the enactment of just laws, or such as may, in the opinion of judges, be deemed expedient. Nor did the people think it necessary in any way to guard themselves from laws incompatible with the uncertain thing called natural justice; or to hedge themselves about with what judges are pleased to call the principles of eternal justice. This question is simply one of power; the legislature either possesses it unlimited, or not at all. It cannot depend upon the extent or character of the injustice embodied in any particular law. The courts are no more authorized to annul a law of the legislature, because opposed to the principles of natural justice, than because it may violate the simplest natural right. * * * If the constitution has not limited the powers of the legislature to the enactment of just laws, or such as do not conflict with
the principles of natural justice, the courts have no more right to so restrict it than they have to test the validity of a law by the dogmas of the church, or the precepts of revealed religion. If the legislature may be held to have transcended its power in enacting a law opposed to the first principles of right, it may be held to do so at the pleasure and caprice of judges. The power is no more given in the one case than the other. Such was not the will of the people as expressed in the constitution, but rather that each of the three great departments should be supreme within its sphere. Surely, the power to make the law must necessarily carry with it the right to judge of its expediency and of its justice." ( Gibson v. Mason, 5 Nev. 291-314 .)
VIII. The legislature has power to relieve a person or a corporation from the effect of a statute under the provisions of which a forfeiture of money or valuable property has occurred. ( Connor v. Bent, 1 Mo. 235 ; People v. Crennon, 141 N.Y. 239 ; Dennis v. Maynard, 15 Ill. 477 .)
E. L. Williams, District Attorney, and A. E. Cheney, for Respondents:
I. The relator does not come with a cause free from fraud, or which justifies the exercise of the courts discretionary power over this writ. (High, Extr. Leg. Rem., 3d ed., sec. 26; Com. v. Henry, 49 Pa. St. 530, 538.)
II. "All the decisions agree that the writ will not lie unless the applicant shows a clear, legal right to the relief demanded." ( State v. LaGrave, 22 Nev. 419 .)
III. It is not clear and undoubted that the relator has any valid claim against Washoe county to justify the finding of the appraisers or which comes within the purview of the act of March 9, 1899. That act only relates to valid subsisting claims.
IV. The act of March 9, 1899, does not purport to give a right of action. It does not manifest any intention on the part of the legislature to legalize any invalid or unlawful claim against any county. Even if it were admitted that it had the power so to do, the exercise of a power of that doubtful nature is not to be inferred, nor raised by contention. The presumption is that the law relates to valid and existing
claims. As to those it probably was intended to give a new remedy. The act in question does not attempt to do any more. Whether the relator claims that it does more is yet unknown. It is plain from the record that the relator had no cause of action when this act was passed. The judgment, on demurrer in one action and on appeal in another, established that there was no right of recovery in its behalf. The statute of limitation was a prohibition against its allowance or payment by the county, and a complete extinguishment of the cause of action. ( 37 Cal. 196 .) Having no claim against Washoe county at the time of the passage of this act, and the act failing to give a right of action to any one, simply enumerating the conditions necessary to enable one to avail himself of the new remedy, it should be construed, even if held constitutional, as only intended to give a new remedy for those who have valid claims of a certain character against a county. The title of this act, "to regulate the allowance and payment of certain claims against counties," manifests its whole scope and purpose. Its express and only purpose is to regulate the allowance and payment of certain claims. There is not a word indicative of a purpose or intent to relieve any person from any default or penalty, not a phrase which manifests a desire to raise the bar of the statute of limitations, or avoid the force and effect of judgments of unquestioned validity, nor a sentence which authorizes the inference that any unlawful, fraudulent or illegal contract was to be legalized. On the contrary, the title, the limitation of time, the designation of the class of claims, and the persons who may avail themselves of it, the method of procedure therein set forth, and the final consummation of the act — an award — demonstrates that this act is wholly remedial. It is confidently submitted that the record shows that the relator is not entitled to the benefits of the act of March 9, 1899, even if it is a valid legislative act.
V. Where a person acting in good faith has innocently sold and delivered to a municipal corporation personal property, which it retains without making fair recompense, and the seller is denied relief in the ordinary course of law because of a failure to comply with some statute provision regulating the sale, many considerations of equity and justice
plead in his behalf, and if the case at bar were of that character, no fault could be found with the court if it resolved every doubtful question in behalf of the claimant. But such is not this case. It has been thrice adjudicated that this relator attempted to enter into an illegal and fraudulent contract with the board of commissioners of Washoe county, for the sale and purchase of the property in question. Under these circumstances it comes before the court with unclean hands, presenting a claim, illegal in its inception and thoroughly tainted with the original frauds. As was said in Santa Cruz Rock Paving Co. v. Broderick, 113 Cal. 635 , the performance of a contract, knowingly made in violation of the law, raises no equitable consideration in behalf of the violator, and the county of Washoe, which these respondents represent, owe the relator no more obligation to indemnify it for loss which it has justly sustained by reason of its fraudulent and illegal assault upon its public treasury. "Ex dolo malo non oritur actio." (Broom's Legal Maxims, p. 728.)