Ex Rel. Whalen v. Welliver , 60 Nev. 154 ( 1940 )

ON PETITION FOR REHEARING August 28, 1940. 104 P.2d 1016. OPINION In presenting this petition, respondents urge that by our decision we in effect overruled a former decision of this court, viz, Leeper v. Jamison, 32 Nev. 327, 108 P. 1.

At the time of rendering the decision we were familiar with that case, it having been cited by respondents in support of their contention that certain sections of the Reno civil service law are unconstitutional.

Counsel for respondents in his brief in the main case called attention to the fact that prior to the enactment of the civil service law, sections 1 and 2 of article IX of the charter of the city of Reno governed the appointment and removal of police officers. Petitioners raised the question of the legality of the dismissal under said sections. It was apparent that should respondents prevail in their contention as to the unconstitutionality of certain sections of the civil service law we would be confronted with a determination of the legality of the dismissal under the said sections of the charter, and it appearing that the dismissal under the terms of the charter was illegal, respondents could gain nothing by a decision on the constitutionality of the civil service law.

1. The situation resolved itself into this: First, if we should find the civil service law constitutional, then the writ should issue, because its terms were not complied with; second, if we should find the Reno civil service law unconstitutional, then, again, the writ should issue because the discharge was not in conformity with the provisions of the Reno charter. And, following the well-established rule that courts will not pass upon the constitutionality of a statute unless absolutely necessary, we declined to do so.

We think it will be conceded that before we would be justified in considering the controlling effect of the case of Leeper v. Jamison, supra, the question of the constitutionality of sections 1 and 2 of article IX should have been challenged and presented for consideration. This was not done. We did not feel justified in going outside the issues presented in order to bring that question into the case. We will be disposed to give such force and effect to the Leeper case as we then think proper if and when a question is presented to us, necessary to be determined, involving the principles therein decided. We most certainly have not, as yet, overruled that case.

2. Another well-recognized rule is that questions presented for the first time on petition for rehearing will not be decided.

Rehearing denied.