
    [No. 902.]
    STATE OF NEVADA, ex rel. R. E. ARICK, Respondent, v. JOHN C. HAMPTON, Treasurer of Virginia City, Appellant.
    Legislature Carnot Exercise Judicial Powers — Claims'Against Municipal Corporations. — In construing the provisions of the act providing for the payment of outstanding indebtedness of Virginia City (Stat. 1844, 5, 325): Held, that said act, in so far as it undertakes to definitely fix the amount due to the persons therein named, is an attempt upon the part of the legislature to exercise judicial powers, and is repugnant to section 1 of article III of the state constitution.
    Appeal from the District Court of tbe First Judicial District, Storey County.
    Tbe facts are stated in tbe opinion.
    
      S. P. Scanilcer, City Attorney of Virginia, for Appellant.
    I. Tbe proviso in tbe act evidently governs tbe whole act relative to Arick’s claim, tbat be must surrender or offer to surrender bis evidence of indebtedness, etc., before be could get bis demand. (Potter’s Dwarris on Stat. & Const, p. 118, notes; Minis v. U. S., 15 Peters, 423; Voorhees v. Bank of U. S., 10 Id. 471.) Tbe legislature cannot make contracts for municipal corporations. (1 Dill. sec. 43; Mayor and City Council of Baltimore v. Horn et al., 30 Md. 218; 33 Penn. St.'495; McDaniel v. Correll, 19 111. 226; Reiser v. Tell Savings Fund, 39 Penn. St. 144.)
    
      B. H. Taylor, for Eespondent.
    I. Tbe legislature bad authority to .pass tbe act of January 27, 1865. (Stat. 1864-65, 121, and tbat of March 9, 1865; Stat. 1864-65, 325; United States v. B. B. Co., 17 Wall. 329; Police Jury v. Shreveport, 5 Lou. An. 661; Gutzweller v. People, 14 111. 142; County y. State, 11 Id. 202; Dennis'v. Maynard, 15 Id. 477; Town of Guilford-v. Sup. Chen. Co., 13 N. Y. 143; Brewster v. City of. Syracuse, 19 Id. 116; Darlington v. Mayer, 31 Id. 190, 203; State exrel. St. Louis Police Comm. v. St. Louis County Court, 34 Mo. 546; 1 Dillon Mun. Corp., sec. 47; Standing v. Burr, 13 Cal. 343.)
    II. The claim of respondent is ascertained and definitely fixed by the act of March 9, 1865, and the payment thereof by the city treasurer, being a purely ministerial act, he can be compelled by mandamus to perform it. (Moses on Mand., 142, 208; Case v. Wresler, 4 Ohio St. 561; State v. Lynch, 8 Id. 347; State v. Slaven, 11 Wis. 153; High Ex. Leg. Bern., secs. 36, 104, 111, 112, 115,116.)
   By the Court,

Hawley, C. J.:

The district court, upon the petition of respondent, issued a writ of mandamus to compel the appellant to pay respondent the sum of three hundred dollars, with interest, as provided in the act of the legislature approved March ’9, 1865. (Stat. 1864-65, 325.)

It is argued by appellant that the court erred in refusing to sustain a demurrer interposed upon the ground that the petition did not state facts sufficient to constitute a cause of action.

The act of the legislature, after authorizing the treasurer to set apart certain moneys as a special fund and out of said fund to pay the indebtedness therein described (including the claim of respondent) provides: “that all the evidences of indebtedness held therefor, together with all warrants or other legal evidences of indebtedness, held as collateral security for the-payment of the same, shall be surrendered to the city treasurer at the time of the payment thereof.”

The petition is defective in failing to state that this provision of the law was complied with.

The respondent contends that his claim is ascertained and definitely fixed by the act in question and that it was the duty of the city treasurer to pay over the money whenever there was a sufficient amount in the special fund to pay the same without having the amount thereof ascertained by the courts, or by the municipal authorities of Virginia city. “The cases on this subject,” says Dillon, “when carefully examined, go no further probably, than to assert the doctrine that it is competent for the legislature to compel municipal corporations to recognize and pay debts not binding in law, and which, for technical reasons, could not be enforced in equity, but which, nevertheless, are just and equitable in their character, and involve a moral obligation.” (1 Dillon on Municipal Corporations, sec. 44, and authorities there cited.)

Dennis v. Maynard, 15 Ill. 477, is the only authority cited by respondent that goes to the extent that the legislature may ascertain and definitely fix the amount due and compel the municipal corporation to pay the same. In that case the money raised by taxation was to be applied to a public object, and several authorities hold that in cases where the public interests are alone involved the power of the legislature is greater than in cases which only concern private interests. It is unnecessary in this case to decide whether such a distinction is founded upon any substantial reason.

In The People v. The Mayor of Chicago, 51 Ill. 30, it was held that the legislature could not compel a municipal corporation, against its will, to incur a debt by the issue of its bonds for any local improvement.

By an examination of the authorities, which are quite numerous, it will be observed that in the discussion of this and kindred questions the courts are not entirely harmonious; We are, however, satisfied that in a case like the one under consideration, where, only private interests are involved, it may be considered as, settled, by the weight of authority, that the legislature cannot adjudicate upon disputed claims.

Cooley, after stating the general rule substantially as quoted from Dillon, and declaring that the legislature has no power, against the will of a municipal corporation, to compel it to contract debts for local purposes in which the state has no concern, says:

“And there is much good reason for assenting also to what several respectable authorities have held, that where a demand is asserted against a municipality, though of a nature that the legislature would have a right to require it to incur and discharge, yet if its legal and equitable obligation is disputed, the corporation has the right to have the dispute settled by the courts, and cannot be bound by a legislative allowance of the claim.” (Cooley, Const. Lim. 238.)

In a note reviewing the authorities upon this subject he says: “It is one thing to determine that the nature of a claim is such as to make it proper to satisfy it by taxation, and another to adjudge how much is justly due upon it. The one is the exercise of legislative power, the other of judicial.”

The act in question, in so far as it undertakes to definitely fix the amount due to the several persons therein named, is an attempt upon the part of the legislature to exercise judicial powers, and is repugnant to section 1 of article iii. of the sta.te constitution.

The demurrer ought to have been sustained.

The judgment and order appealed from are reversed and cause remanded.  