Mark Ferrario, Nevadans For Background Checks Letter To Sandoval On Question 1

6/2/2017 18 USCS 922
(D) notice that the transferee intends to obtain a handgun from the transferor. Exhibit A
(4) Any transferor of a handgun who, after such transfer, receives a report from a chief law enforcement officer containing information that receipt or
possession of the handgun by the transferee violates Federal, State, or local law shall, within 1 business day after receipt of such request,
communicate any information related to the transfer that the transferor has about the transfer and the transferee to--
(A) the chief law enforcement officer of the place of business of the transferor; and
(B) the chief law enforcement officer of the place of residence of the transferee.
(5) Any transferor who receives information, not otherwise available to the public, in a report under this subsection shall not disclose such information
except to the transferee, to law enforcement authorities, or pursuant to the direction of a court of law.
(6) (A) Any transferor who sells, delivers, or otherwise transfers a handgun to a transferee shall retain the copy of the statement of the transferee
with respect to the handgun transaction, and shall retain evidence that the transferor has complied with subclauses (III) and (IV) of paragraph (1)(A)
(i) with respect to the statement.
(B) Unless the chief law enforcement officer to whom a statement is transmitted under paragraph (1)(A)(i)(IV) determines that a transaction
would violate Federal, State, or local law--
(i) the officer shall, within 20 business days after the date the transferee made the statement on the basis of which the notice was provided,
destroy the statement, any record containing information derived from the statement, and any record created as a result of the notice required
by paragraph (1)(A)(i)(III);
(ii) the information contained in the statement shall not be conveyed to any person except a person who has a need to know in order to carry
out this subsection; and
(iii) the information contained in the statement shall not be used for any purpose other than to carry out this subsection.
(C) If a chief law enforcement officer determines that an individual is ineligible to receive a handgun and the individual requests the officer to
provide the reason for such determination, the officer shall provide such reasons to the individual in writing within 20 business days after receipt of
the request.
(7) A chief law enforcement officer or other person responsible for providing criminal history background information pursuant to this subsection shall
not be liable in an action at law for damages--
(A) for failure to prevent the sale or transfer of a handgun to a person whose receipt or possession of the handgun is unlawful under this section;
or
(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a handgun.
(8) For purposes of this subsection, the term "chief law enforcement officer" means the chief of police, the sheriff, or an equivalent officer or the
designee of any such individual.
(9) The Attorney General shall take necessary actions to ensure that the provisions of this subsection are published and disseminated to licensed
dealers, law enforcement officials, and the public.
(t) (1) Beginning on the date that is 30 days after the Attorney General notifies licensees under section 103(d) of the Brady Handgun Violence Prevention Act
[note to this section] that the national instant criminal background check system is established, a licensed importer, licensed manufacturer, or licensed dealer shall
not transfer a firearm to any other person who is not licensed under this chapter [18 USCS 921 et seq.], unless--
(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 103 of that
Act [note to this section];
(B)
(i) the system provides the licensee with a unique identification number; or
(ii) 3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system, and the system has not
notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section; and
(C) the transferor has verified the identity of the transferee by examining a valid identification document (as defined in section 1028(d) of this title [18 USCS
1028(d)]) of the transferee containing a photograph of the transferee.
(2) If receipt of a firearm would not violate section 922 (g) or (n) [18 USCS 922(g) or (n)] or State law, the system shall--
(A) assign a unique identification number to the transfer;
(B) provide the licensee with the number; and
(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all
records of the system relating to the person or the transfer.
(3) Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if--
(A) (i) such other person has presented to the licensee a permit that--
(I) allows such other person to possess or acquire a firearm; and
(II) was issued not more than 5 years earlier by the State in which the transfer is to take place; and
(ii) the law of the State provides that such a permit is to be issued only after an authorized government official has verified that the
information available to such official does not indicate that possession of a firearm by such other person would be in violation of law;
(B) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986 [26 USCS 5812]; or
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(C) on application of the transferor, the Attorney General has certified that compliance with paragraph (1)(A) is impracticable because--
(i) the ratio of the number of law enforcement officers of the State in which the transfer is to occur to the number of square miles of land area of
the State does not exceed 0.0025;
(ii) the business premises of the licensee at which the transfer is to occur are extremely remote in relation to the chief law enforcement officer (as
defined in subsection (s)(8)); and
(iii) there is an absence of telecommunications facilities in the geographical area in which the business premises are located.
(4) If the national instant criminal background check system notifies the licensee that the information available to the system does not demonstrate that
the receipt of a firearm by such other person would violate subsection (g) or (n) or State law, and the licensee transfers a firearm to such other person, the
licensee shall include in the record of the transfer the unique identification number provided by the system with respect to the transfer.
(5) If the licensee knowingly transfers a firearm to such other person and knowingly fails to comply with paragraph (1) of this subsection with respect to
the transfer and, at the time such other person most recently proposed the transfer, the national instant criminal background check system was operating
and information was available to the system demonstrating that receipt of a firearm by such other person would violate subsection (g) or (n) of this section
or State law, the Attorney General may, after notice and opportunity for a hearing, suspend for not more than 6 months or revoke any license issued to the
licensee under section 923 [18 USCS 923], and may impose on the licensee a civil fine of not more than $ 5,000.
(6) Neither a local government nor an employee of the Federal Government or of any State or local government, responsible for providing information to
the national instant criminal background check system shall be liable in an action at law for damages--
(A) for failure to prevent the sale or transfer of a firearm to a person whose receipt or possession of the firearm is unlawful under this section; or
(B) for preventing such a sale or transfer to a person who may lawfully receive or possess a firearm.
(u) It shall be unlawful for a person to steal or unlawfully take or carry away from the person or the premises of a person who is licensed to engage in the
business of importing, manufacturing, or dealing in firearms, any firearm in the licensee's business inventory that has been shipped or transported in interstate or
foreign commerce.
(v), (w) [Repealed]
(x) (1) It shall be unlawful for a person to sell, deliver, or otherwise transfer to a person who the transferor knows or has reasonable cause to believe is a
juvenile--
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.
(2) It shall be unlawful for any person who is a juvenile to knowingly possess--
(A) a handgun; or
(B) ammunition that is suitable for use only in a handgun.
(3) This subsection does not apply to--
(A) a temporary transfer of a handgun or ammunition to a juvenile or to the possession or use of a handgun or ammunition by a juvenile if the
handgun and ammunition are possessed and used by the juvenile--
(i) in the course of employment, in the course of ranching or farming related to activities at the residence of the juvenile (or on property used for
ranching or farming at which the juvenile, with the permission of the property owner or lessee, is performing activities related to the operation of
the farm or ranch), target practice, hunting, or a course of instruction in the safe and lawful use of a handgun;
(ii) with the prior written consent of the juvenile's parent or guardian who is not prohibited by Federal, State, or local law from possessing a
firearm, except--
(I) during transportation by the juvenile of an unloaded handgun in a locked container directly from the place of transfer to a place at which
an activity described in clause (i) is to take place and transportation by the juvenile of that handgun, unloaded and in a locked container,
directly from the place at which such an activity took place to the transferor; or
(II) with respect to ranching or farming activities as described in clause (i), a juvenile may possess and use a handgun or ammunition with
the prior written approval of the juvenile's parent or legal guardian and at the direction of an adult who is not prohibited by Federal, State or
local law from possessing a firearm;
(iii) the juvenile has the prior written consent in the juvenile's possession at all times when a handgun is in the possession of the juvenile; and
(iv) in accordance with State and local law;
(B) a juvenile who is a member of the Armed Forces of the United States or the National Guard who possesses or is armed with a handgun in the line
of duty;
(C) a transfer by inheritance of title (but not possession) of a handgun or ammunition to a juvenile; or
(D) the possession of a handgun or ammunition by a juvenile taken in defense of the juvenile or other persons against an intruder into the residence
of the juvenile or a residence in which the juvenile is an invited guest.
(4) A handgun or ammunition, the possession of which is transferred to a juvenile in circumstances in which the transferor is not in violation of this
subsection shall not be subject to permanent confiscation by the Government if its possession by the juvenile subsequently becomes unlawful because of
the conduct of the juvenile, but shall be returned to the lawful owner when such handgun or ammunition is no longer required by the Government for the
purposes of investigation or prosecution.
(5) For purposes of this subsection, the term "juvenile" means a person who is less than 18 years of age.
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Exhibit B
a firearm, and notify the FFL of the results of the check.
NICS Background Checks

The FFLs have the following three methods of performing background checks depending upon the state in which the
FFL is conducting business:
1. In states where the state government has agreed to serve as the POC for the system, the FFLs contact the NICS
through the state POC for all firearm transfers. The state POC conducts the NICS check and determines whether or
not the transfer would violate state or federal law.
2. In states where the state government has declined to serve as a POC, the FFLs initiate a NICS background check
by contacting the NICS Call Centers for all firearm transfers. The FBI conducts the NICS check and determines
whether or not the transfer would violate state or federal law.
3. Finally, in states where the state government has agreed to serve as a POC for handgun purchases but not for long
gun purchases, the FFLs contact the NICS through the designated state POC for handgun transfers and the NICS
Section for long gun transfers.
Each state decides whether the FFLs in its state call a state POC or the FBI to initiate firearm background checks.
NICS E-Check
This function enables FFLs to initiate an unassisted NICS background check for firearm transfers via the Internet. The
NICS Section ensured that security was a priority during the development and implementation of the NICS E-Check.
The NICS E-Check is monitored 24 hours a day, 7 days per week, for misuse and unauthorized access. In addition,
the NICS E-Check denies access to any individual whose identification is not known to the system.
When a firearm background check is initiated via the NICS E-Check if no matching records are returned by any of the
databases, the transaction is automatically proceeded. If it is determined that prohibitive criteria exists, the NICS
Examiner will deny the firearm transaction. If the NICS returns a match of the prospective firearm transferees
descriptive information to that of record information located in any of the databases that is potentially disqualifying, the
NICS Examiner delays the transaction. When the initial processing of the NICS E-Check transactions is completed,
the NICS E-Check generates the status to be relayed electronically to the requestor. If the transaction is determined to
be a delay, the pre-calculated date the requestor may transfer the firearm if no resolution is provided within three
business days is also relayed. The NICS Examiner begins extensive research on the potential prohibitors located on
firearm background checks delayed via the NICS E-Check. Upon completion of the research when a definitive status
is determined, an electronic message is generated to the requestor for a PROCEED or DENY decision. When
transactions are denied after the third business day, the requestor is contacted via telephone with the final status.
Privacy and Security of NICS Information

The privacy and security of the information in the NICS is of great importance. In October 1998, the Attorney General
published regulations on the privacy and security of NICS information, including the proper and official use of this
information. These regulations are available on the NICS website. Data stored in the NICS is documented federal data
https://www.fbi.gov/services/cjis/nics/about-nics Page 4 of 9
28 CFR 25.2
Exhibit C
5/11/17, 9(00 PM
service to local, state, and Federal criminal justice agencies.
NICS means the National Instant Criminal Background Check System, which an FFL must, with limited exceptions, contact for information on whether
receipt of a firearm by a person who is not licensed under 18 U.S.C. 923 would violate Federal or state law.
NICS Index means the database, to be managed by the FBI, containing information provided by Federal and state agencies about persons prohibited
under Federal law from receiving or possessing a firearm. The NICS Index is separate and apart from the NCIC and the Interstate Identification Index
(III).
NICS operational day means the period during which the NICS Operations Center has its daily regular business hours.
NICS Operations Center means the unit of the FBI that receives telephone or electronic inquiries from FFLs to perform background checks, makes a
determination based upon available information as to whether the receipt or transfer of a firearm would be in violation of Federal or state law, researches
criminal history records, tracks and finalizes appeals, and conducts audits of system use.
NICS Representative means a person who receives telephone inquiries to the NICS Operations Center from FFLs requesting background checks and
provides a response as to whether the receipt or transfer of a firearm may proceed or is delayed.
NRI (NICS Record Identifier) means the system-generated unique number associated with each record in the NICS Index.
NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its
primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.
Open means those non-canceled transactions where the FFL has not been notified of the final determination. In cases of "open" responses, the NICS
continues researching potentially prohibiting records regarding the transferee and, if definitive information is obtained, communicates to the FFL the final
determination that the check resulted in a proceed or a deny. An "open" response does not prohibit an FFL from transferring a firearm after three
business days have elapsed since the FFL provided to the system the identifying information about the prospective transferee.
ORI (Originating Agency Identifier) means a nine-character identifier assigned by the FBI to an agency that has met the established qualifying criteria for
ORI assignment to identify the agency in transactions on the NCIC System.
Originating Agency means an agency that provides a record to a database checked by the NICS.
POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by
the NICS. A POC will receive NICS background check requests from FFLs, check state or local record systems, perform NICS inquiries, determine
whether matching records provide information demonstrating that an individual is disqualified from possessing a firearm under Federal or state law, and
respond to FFLs with the results of a NICS background check. A POC will be an agency with express or implied authority to perform POC duties pursuant
to state statute, regulation, or executive order.
Proceed means a NICS response indicating that the information available to the system at the time of the response did not demonstrate that transfer of
the firearm would violate federal or state law. A "Proceed" response would not relieve an FFL from compliance with other provisions of Federal or state
law that may be applicable to firearms transfers. For example, under 18 U.S.C. 922(d), an FFL may not lawfully transfer a firearm if he or she knows or
has reasonable cause to believe that the prospective recipient is prohibited by law from receiving or possessing a firearm.
Record means any item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to
information that disqualifies the individual from receiving a firearm, and that contains his or her name or other personal identifiers.
STN (State-Assigned Transaction Number) means a unique number that may be assigned by a POC to a valid background check inquiry.
System means the National Instant Criminal Background Check System (NICS).
Statutory Authority
AUTHORITY NOTE APPLICABLE TO ENTIRE PART:
Public Law 103-159, 107 Stat. 1536, 49 U.S.C. 30501-30505; Public Law 101-410, 104 Stat. 890, as amended by Public Law 104-134, 110 Stat. 1321.
History
[63 FR 58303, 58307, Oct. 30, 1998; 69 FR 43892, 43900, July 23, 2004; 79 FR 69047, 69051, Nov. 20, 2014]
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CopyCitation
ThisdocumentiscurrentthroughtheMay10,2017issueoftheFederalRegister.Pursuantto82FR8346("RegulatoryFreezePendingReview"),certainregulationswillbe
delayedpendingfurtherreview.SeePublisher'sNoteunderaffectedrules.Title3iscurrentthroughMay5,2017.
CodeofFederalRegulations TITLE28JUDICIALADMINISTRATION CHAPTERIDEPARTMENTOFJUSTICE PART25DEPARTMENTOFJUSTICE

INFORMATIONSYSTEMS SUBPARTATHENATIONALINSTANTCRIMINALBACKGROUNDCHECKSYSTEM
25.6Accessingrecordsinthesystem.
(a)FFLsmayinitiateaNICSbackgroundcheckonlyinconnectionwithaproposedfirearmtransferasrequiredbytheBradyAct.FFLsarestrictlyprohibitedfrom
initiatingaNICSbackgroundcheckforanyotherpurpose.TheprocessofaccessingtheNICSforthepurposeofconductingaNICSbackgroundcheckisinitiatedbyan
FFL'scontactingtheFBINICSOperationsCenter(bytelephoneorelectronicdialupaccess)oraPOC.FFLsineachstatewillbeadvisedbytheATFwhethertheyare
requiredtoinitiateNICSbackgroundcheckswiththeNICSOperationsCenteroraPOCandhowtheyaretodoso.
(b)AccesstotheNICSthroughtheFBINICSOperationsCenter.FFLsmaycontacttheNICSOperationsCenterbyuseofatollfreetelephonenumber,onlyduringits
regularbusinesshours.Inadditiontotelephoneaccess,tollfreeelectronicdialupaccesstotheNICSwillbeprovidedtoFFLsafterthebeginningoftheNICS
operation.FFLswithelectronicdialupaccesswillbeabletocontacttheNICS24hourseachday,excludingscheduledandunscheduleddowntime.
(c)
(1)TheFBINICSOperationsCenter,uponreceivinganFFLtelephoneorelectronicdialuprequestforabackgroundcheck,will:
(i)VerifytheFFLNumberandcodeword
(ii)AssignaNICSTransactionNumber(NTN)toavalidinquiryandprovidetheNTNtotheFFL
(iii)Searchtherelevantdatabases(i.e.,NICSIndex,NCIC,III)foranymatchingrecordsand
(iv)ProvidethefollowingNICSresponsesbasedupontheconsolidatedNICSsearchresultstotheFFLthatrequestedthebackgroundcheck:
(A)"Proceed"response,ifnodisqualifyinginformationwasfoundintheNICSIndex,NCIC,orIII.
(B)"Delayed"response,iftheNICSsearchfindsarecordthatrequiresmoreresearchtodeterminewhethertheprospectivetransfereeisdisqualifiedfrom
possessingafirearmbyFederalorstatelaw.A"Delayed"responsetotheFFLindicatesthatthefirearmtransfershouldnotproceedpendingreceiptofa
followup"Proceed"responsefromtheNICSortheexpirationofthreebusinessdays(exclusiveofthedayonwhichthequeryismade),whicheveroccurs
first.(Example:AnFFLrequestsaNICScheckonaprospectivefirearmtransfereeat9:00a.m.onFridayandshortlythereafterreceivesa"Delayed"
responsefromtheNICS.IfstateofficesinthestateinwhichtheFFLislocatedareclosedonSaturdayandSundayandopenthefollowingMonday,
Tuesday,andWednesday,andtheNICShasnotyetrespondedwitha"Proceed"or"Denied"response,theFFLmaytransferthefirearmat12:01a.m.
Thursday.)
(C)"Denied"response,whenatleastonematchingrecordisfoundineithertheNICSIndex,NCIC,orIIIthatprovidesinformationdemonstratingthat
receiptofafirearmbytheprospectivetransfereewouldviolate18U.S.C.922orstatelaw.The"Denied"responsewillbeprovidedtotherequestingFFLby
theNICSOperationsCenterduringitsregularbusinesshours.
(2)NoneoftheresponsesprovidedtotheFFLunderparagraph(c)(1)ofthissectionwillcontainanyoftheunderlyinginformationintherecordscheckedbythe
system.
(d)AccesstotheNICSthroughPOCs.InstateswhereaPOCisdesignatedtoprocessbackgroundchecksfortheNICS,FFLswillcontactthePOCtoinitiateaNICS
backgroundcheck.BothATFandthePOCwillnotifyFFLsinthePOC'sstateofthemeansbywhichFFLscancontactthePOC.TheNICSwillprovidePOCswithelectronic
accesstothesystemvirtually24hourseachdaythroughtheNCICcommunicationnetwork.UponreceivingarequestforabackgroundcheckfromanFFL,aPOCwill:
(1)VerifytheeligibilityoftheFFLeitherbyverificationoftheFFLnumberoranalternativePOCverificationsystem
(2)EnterapurposecodeindicatingthatthequeryofthesystemisforthepurposeofperformingaNICSbackgroundcheckinconnectionwiththetransferofa
firearmand(3)TransmittherequestforabackgroundcheckviatheNCICinterfacetotheNICS.
(e)UponreceivingarequestforaNICSbackgroundcheck,POCsmayalsoconductasearchofavailablefilesinstateandlocallawenforcementandotherrelevant
recordsystems,andmayprovideauniqueStateAssignedTransactionNumber(STN)toavalidinquiryforabackgroundcheck.
(f)WhentheNICSreceivesaninquiryfromaPOC,itwillsearchtherelevantdatabases(i.e.,NICSIndex,NCIC,III)foranymatchingrecord(s)andwillprovidean
electronicresponsetothePOC.ThisresponsewillconsolidatethesearchresultsoftherelevantdatabasesandwillincludetheNTN.Thefollowingtypesofresponses
maybeprovidedbytheNICStoastateorlocalagencyconductingabackgroundcheck:
(1)Norecordresponse,iftheNICSdetermines,throughacompletesearch,thatnomatchingrecordexists.
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Permanent Brady State Lists | Bureau of Alcohol, Tobacco, Firearms and Explosives 5/17/17, 12(37 PM
Exhibit E1
Permanent Brady State Lists

States in which the FBI Conducts NICS Checks for All Firearms
Transactions
Alabama Alaska American Samoa
Arizona Arkansas Delaware
D.C. Georgia Idaho
Indiana Kansas Kentucky
Louisiana Maine Massachusetts
Minnesota Mississippi Missouri
Montana New Mexico New York
North Dakota N. Mariana Islands Ohio
Oklahoma Puerto Rico Rhode Island
South Carolina South Dakota Texas
Vermont West Virginia Wyoming
States that Act as the Point of Contact (POC) for All Firearms
Transactions
California Colorado Connecticut
Hawaii Illinois Nevada
New Jersey Oregon Pennsylvania
Tennessee Utah Virginia
States that Act as a Partial Point of Contact (POC) for NICS

Checks
Florida New Hampshire
Florida Dept. of Law Enforcement for all firearms, New Hampshire Department of Safety for handguns
except licensees may contact the FBI for certain FBI long guns
pawn transactions
North Carolina
Iowa
Permit POC for handguns
Permit POC for handguns FBI long guns
FBI long guns
Washington
Maryland
Chief law enforcement officer for handguns without
Maryland State Police handguns and assault CPL
weapons FBI - for handguns with CPL
FBI long guns and pawn redemptions FBI long guns
Michigan Wisconsin
Permit POC for handguns Department of Justice for handguns

FBI long guns FBI long guns
Nebraska Last Reviewed April 28, 2017
Permit POC for handguns

FBI long guns
https://www.atf.gov/rules-and-regulations/permanent-brady-state-lists Page 1 of 2
If the State is acting as a POC, does that mean that all NICS checks ger than the FBI? | Bureau of Alcohol, Tobacco, Firearms and Explosives 6/7/17, 6'49 PM
Exhibit E2
If the State is acting as a POC, does that mean

that all NICS checks go through the POC rather
than the FBI?
That depends on the State. In some States, the POC conducts background checks for all firearms
transactions. In other States, licensees must contact the POC for handgun transactions and the FBI for
long gun transactions. In some POC States, NICS checks for pawn redemptions are handled by the FBI.
Last Reviewed September 23, 2016
https://www.atf.gov/firearms/qa/if-state-acting-poc-does-mean-all-nics-checks-go-through-poc-rather-fbi Page 1 of 1
Exhibit F
180
181
Exhibit G
Exhibit H
Exhibit I
Exhibit J
Exhibit K
Exhibit L
Weve put together this guide to educate
Federal Firearms Licensees (FFLs) on how
to facilitate private party sales of firearms.
When individuals decide to use FFLs to
facilitate the private sale of their firearms,
it can enhance public safety, assist law
enforcement, and help ensure firearms
end up only in the hands of those who are
legally allowed to possess them.
Every day, many lawful transfers of firearms

take place between unlicensed individuals
who reside in the same state. These Facilitating private sales is purely voluntary
transfers take place at residences, at gun under federal law. Note that state laws may
shows, and through classified and online impose their own requirements, and you
ads. But these unlicensed sellers, who should ensure that you comply with the
are not FFLs, may not have the ability to requirements in your state.
conduct complete background checks on
When a private transaction is completed
potential buyers. This leaves these private
through a licensed dealer, both the
sellers with no way to confirm whether or
customers and the community have some
not the person to whom they are selling
assurance that the individual wishing to
the firearm is prohibited from possessing
purchase the firearm is not prohibited by
it. Indeed, many of these sellers may not
law from possessing or receiving a firearm.
even be aware of all the circumstances
When a private seller goes through an FFL
that prohibit someone from possessing a
to transfer his or her firearm, it can also
firearm.
improve the ability of law enforcement to
As an FFL, you play a key role in trace that firearm if it is later recovered
safeguarding the public from violent during a criminal investigation.
crime by maintaining accurate records,
This guide will cover the procedures to
instituting internal controls, and performing
follow when facilitating private sales, as
background checks on potential firearms
well as answer some frequently asked
purchasers. These practices help prevent
questions (FAQs). There is also a list
violent criminals from obtaining firearms
of resources that can provide further
and help reduce the possibility that
guidance.
firearms will be used in crimes.
FACILITATING PRIVATE SALES 2 A FEDERAL FIREARMS LICENSEE GUIDE

Federal law prohibits certain persons from shipping, transporting, possessing, or
receiving firearms or ammunition including any person who:
Has been convicted of a crime punishable by a term of imprisonment

exceeding one year;
Is a fugitive from justice;
Is an unlawful user of, or addicted to, any controlled substance;
Has been adjudicated as a mental defective or committed to a mental
institution;
Is an alien illegally or unlawfully in the United States;
Is an alien who has been admitted to the United States under a nonimmigrant
visa (with certain exceptions);
Has been discharged from the Armed Forces under dishonorable conditions;
Has renounced United States citizenship;
Is subject to a qualifying protective order;
Has been convicted of a misdemeanor crime of domestic violence.
Further, Federal law prohibits the shipment, transportation, or receipt of firearms

or ammunition by any person who is under indictment for a crime punishable by a
term of imprisonment exceeding one year. Federal law also prohibits, with certain
exceptions, the possession of handguns by any person under the age of 18.

1. The FFL receives an immediate
Proceed response from NICS:
The FFL enters the firearm into its

Acquisition and Disposition (A&D)
records as an acquisition from the
private party seller.
The FFL completes Section D of Form
4473 and transfers the firearm to the
buyer.
FFL-facilitated sales between private
The FFL records the disposition of
individuals are subject to the same
the firearm out of the A&D record to
rules and regulations as any other sale
the buyer, no later than seven days
conducted by the FFL. In all cases, the
following the transaction.
prospective buyer must complete Section
A of the Firearms Transaction Record, ATF 2. The FFL receives a Denied or
Form 4473. The FFL must complete section Cancelled response from NICS:
B of the ATF Form 4473. The FFL cannot transfer the firearm to
the prospective buyer.
When an FFL contacts the National Instant
If the private party seller has not left
Criminal Background Check System
the firearm in the exclusive possession
(NICS) (or the state point of contact) for
of the FFL, the private party seller can
a background check, there are several
leave the premises with the firearm.
responses that it may receive, and the
The FFL would not enter the firearm as
procedure for moving forward depends
an acquisition into the A&D record.
upon that response, as indicated below.
If the seller has left the firearm in
the exclusive possession of the FFL,
the FFL must record the firearm as
an acquisition in its A&D record as an
acquisition from the private party seller.
Prior to the FFL transferring the firearm
back to the private party seller, the FFL
must do the following:
- Complete a Form 4473 to return the
firearm to the private party seller.
- Conduct a NICS background check
on the private party seller. The FFL
may transfer the firearm to the
private party seller if it receives a
proceed response or a delayed
response with no response from
NICS after three business days (or the
appropriate state waiting period if
more than three business days).

- Record the return as a disposition in proceed response, or no response
the A&D records, no later than seven after three business days (or the
days following the transaction. appropriate state waiting period if
more than three business days) and
3. The FFL receives a Delayed response the FFL decides to go forward with
from NICS: the transfer, the seller does not need
to return to the premises to complete
The private party seller has two options: the transfer. The FFL will complete
- He or she can leave with the firearm, the transfer of the firearm to the
if the private party seller has not buyer and record the disposition
left the firearm in the exclusive to the buyer in its A&D record no
possession of the FFL. In this case, later than seven days following the
the FFL does not need to record the transaction.
firearm in its A&D record. However,
if the sale later occurs (because the Note that the FFL is not required to
FFL receives a proceed response proceed with the transfer after the
from NICS or three business three business days have passed with
days or the appropriate state no response from NICS; the decision to
waiting period have passed) the transfer is at the discretion of the FFL.
private party seller must return to
the business premises of the FFL to In the case of a later denied
complete the transfer to the buyer. At response, the firearm cannot be
that time, the FFL will need to record transferred to the prospective buyer:
the transaction as an acquisition from - If the private party seller has chosen
the private party seller in its A&D to allow the FFL to retain the firearm
records and record the disposition to pending a response from NICS, the
the buyer no later than seven days FFL and private party seller must
following the transaction. complete a Form 4473, and the FFL
- He or she can allow the FFL to keep must conduct a NICS check and
the firearm at the business pending receive a proceed response or a
a response from NICS or until three delayed response with no response
business days (or the appropriate from NICS after three business days
state waiting period if more than (or the appropriate state waiting
three business days) has passed with period) before transferring the
no response. In this case, the FFL firearm to the private party seller.
has to take the firearm into inventory - The FFL must also record the return
and record it as an acquisition as a disposition in the A&D record no
from the private party seller in its later than seven days following the
A&D records. If NICS later issues a transaction.

GUIDELINES FOR ALL FFL-FACILITATED TRANSFERS
The prospective transferee (buyer) must complete Section A of the ATF
Form 4473.
The FFL must complete Section B of the 4473, conduct a NICS check on
the buyer, and record the response.
The FFL must complete Section D of ATF Form 4473 prior to transfer, identify
the transaction as a private party transfer on the ATF Form 4473, and record
the disposition in its A&D record no later than seven days following the
transaction.
The FFL must maintain the Form 4473 in accordance with 27 CFR 478.129(b).
The transfer must be completed within 30 calendar days of the date NICS
was initially contacted If not, the FFL must conduct a new NICS check.
If the transfer takes place on a day different that the day the prospective
buyer signed Section A of ATF Form 4473, the FFL must check the buyers
photo ID again and buyer must complete the recertification in Section C
immediately prior to the transfer.
All other legal requirements (for example, providing secure gun storage or
safety devices with each transferred handgun, and any applicable multiple
sales reporting) apply equally to these transfers.
For a full description of the procedures applicable

when facilitating private party sales, please see
ATF Proc. 2013-1, https://www.atf.gov/file/88181/download

FFL-Facilitated Firearm Sales
GUIDELINES FOR ALL FFL-FACILITATED TRANSFERS
The prospective transferee (buyer) must complete Section A of the ATF Form 4473.
The FFL must complete Section B of the 4473, conduct a NICS check on the buyer, and record the response.
The FFL must complete Section D of ATF Form 4473 prior to transfer, identify the transaction as a private party transfer on the ATF
Form 4473, and record the disposition in its A&D record no later than seven days following the transaction.
The FFL must maintain the Form 4473 in accordance with 27 CFR 478.129(b).
The transfer must be completed within 30 calendar days of the date NICS was initially contacted If not, the FFL must conduct a new
NICS check.
If the transfer takes place on a day different that the day the prospective buyer signed Section A of ATF Form 4473, the FFL must
check the buyers photo ID again and buyer must complete the recertification in Section C immediately prior to the transfer.
All other legal requirements (for example, providing secure gun storage or safety devices with each transferred handgun, and any
applicable multiple sales reporting) apply equally to these transfers.
Gun Owner Buyer CANNOT PURCHASE A FIREARM IF:

(private seller) Complete Section A Federal law prohibits certain persons from shipping, transporting,
of ATF Form 4473 possessing, or receiving firearms or ammunition including any person who:
Has been convicted of a crime punishable by a term of imprisonment
exceeding one year;
Is a fugitive from justice;
Is an unlawful user of, or addicted to, any controlled substance;
Federal Firearm Licensee (FFL)
Has been adjudicated as a mental defective or committed to a mental
(facilitator of private sale) institution;
Complete Section B of ATF Form 4473 Is an alien illegally or unlawfully in the United States;
Contact NICS (or State Point of Contact) Is an alien who has been admitted to the United States under a
for a background check nonimmigrant visa (with certain exceptions);
Has been discharged from the Armed Forces under dishonorable conditions;
Has renounced United States citizenship;
Is subject to a qualifying protective order;
Has been convicted of a misdemeanor crime of domestic violence.
National Instant Criminal Further, Federal law prohibits the shipment, transportation, or receipt of
Background Check System firearms or ammunition by any person who is under indictment for a crime
punishable by a term of imprisonment exceeding one year. Federal law
(NICS) also prohibits, with certain exceptions, the possession of handguns by any
Response to request for background check person under the age of 18. States may have additional restrictions.
PROCEED DENIED DELAYED
The FFL enters the firearm into The FFL cannot transfer the In the case of a Delayed response or no response after three business
its Acquisition and Disposition firearm to the prospective buyer. days (or the appropriate state waiting period if more than three days),
(A&D) records. the FFL can proceed with the transfer to the buyer.
Note: The FFL is not required to proceed with the transfer.
If the seller has not relinquished
the firearm to the FFL, he or she
can leave the premises with it. The private seller has two options:
The FFL completes Section D of
ATF Form 4473 prior to transfer,
identifies the transaction as OR He or she can leave with the He or she can allow the FFL to
a private party transfer, and firearm. In this case, the FFL OR keep the firearm at the business
transfers the firearm to the If the seller has left the firearm does not need to record the pending a response from NICS or
buyer. in the exclusive possession of firearm in its A&D records. until three business days (or the
the FFL at the FFLs place of appropriate state waiting period
business, the FFL must do the if more than three days) has
following: passed with no response.
The FFL records the disposition However, if the sale later proceeds,
of the firearm out of the A&D the seller must return to the
record to the buyer, no later business premises of the FFL to
than seven days following the Record the firearm as an complete the transfer to the buyer. In this case, the FFL has to take the
transaction. acquisition in its A&D record as firearm into inventory and record
an acquisition from a private it as an acquisition from a private
party seller. party seller in its A&D records.
At that time, the FFL will need
to record the transaction as an
acquisition from a private party
Complete a Form 4473 to return seller in its A&D records. If NICS later issues a Proceed
the firearm to the seller. response or no response after
three business days (or the
appropriate state waiting period
if more than three days) the seller
does not need to return to the
Conduct a NICS background premises to complete the transfer.
check on the seller and receive
either a Proceed response or
no response after three business
days (or the appropriate state
waiting period if more than
three days) before returning the
firearm to the seller.
Record the return as a

disposition in the A&D records,
no later than seven days
following the transaction.
Is it legal for an FFL to facilitate
private sales?
Yes. Not only is it legal for an FFL to
facilitate private sales, it can help enhance
public safety by ensuring a background
check is run on the prospective purchaser.
Are FFLs required to facilitate private

sales under federal law?
No. Facilitating private sales is purely Whats the procedure for facilitating
voluntary under federal law. Note that state private sales?
laws may impose their own requirements, ATF has developed a proceedure to assist
and you should ensure that you comply with FFLs who choose to facilitate private sales.
the requirements in your state. See ATF Proc. 2013-1, https://www.atf.gov/
file/88181/download. The steps are also
Why should an FFL facilitate private sales? outlined in this guide on pages 4-5 and in
Although its legal under federal law for a the flow chart on page 7.
private seller to sell a firearm to a resident
of his or her own state, private sellers For more information, visit the Conduct of
have no way of checking to see if the Business section of www.atf.gov.
buyer is legally able to possess a firearm.
Is there anything different I should do
Private sellers generally do not have
access to complete background checks. on the ATF Form 4473?
The FFL must identify the transaction as
Note, however, that some states may
a Private Party Transfer in Section D of
require potential purchasers to undergo
the ATF form 4473 to ensure transaction
background checks, and have set up
records correspond with private party
systems to meet that requirement.
transfers in the FFLs Acquisition and
Can I charge a fee for facilitating Disposition record.
private sales?
Yes. An FFL can charge a fee as long as
it is consistent with the FFLs state law
requirements.

If I receive no response from NICS, or my it is legal for you to complete the
state point of contact (POC), within three transfer after three business days (or the
business days after initially receiving a appropriate state waiting period if more
delayed response, do I have to complete than three business days). However, the
the transfer? law does not require you to complete the
transfer.
If you initially receive a delayed response
from NICS (or your state point of contact)
and have not received a further response,
For answers to more of your questions, visit the ATFs FAQs:

https://www.atf.gov/questions-and-answers/firearms-qas

Website: www.atf.gov
The Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF) is a law enforcement
agency in the United States Department of
Justice that protects the public from crimes
involving firearms, explosives, arson, and the
diversion of alcohol and tobacco products;
regulates lawful commerce in firearms and
explosives; and provides worldwide support
to law enforcement, public safety, and
industry partners.
Website: www.fbi.gov
Federal Firearms Transaction Record:
https://www.atf.gov/firearms/docs/4473- As an intelligence-driven and a threat-
part-1-firearms-transaction-record-over- focused national security organization with
counter-atf-form-53009/download both intelligence and law enforcement
responsibilities, the mission of the FBI is
Federal Firearms Regulations Reference to protect and defend the United States
Guide: https://www.atf.gov/file/11241/ against terrorist and foreign intelligence
download threats, to uphold and enforce the criminal
The Gun Control Act of 1968: https://www. laws of the United States, and to provide
gpo.gov/fdsys/pkg/USCODE-2015-title18/ leadership and criminal justice services to
pdf/USCODE-2015-title18-partI-chap44. federal, state, municipal, and international
pdf agencies and partners.
Federal Firearms Licensee Quick National Instant Criminal Background

Reference and Best Practices Guide: Check System (NICS): https://www.fbi.
https://www.atf.gov/file/58681/download gov/services/cjis/nics
Firearms Industry Programs Branch,

202-648-7090

Exhibit M
Exhibit N
U.S. Department of Justice
Federal Bureau of Investigation
Criminal Justice Information Services Division
National Instant Criminal

Background Check System (NICS)
2000 Operations Report
E-mail: a_nics@leo.gov
________________________________________________________________________________________
NICS Operations Report April 2001
PART 9: 2000 LEGISLATIVE CHANGES
The NICS has obtained an impressive level of success over its first two years but the program
is still considered to be within an "infancy" stage. Changes in state and federal legislation and internal
policies are proposed on a regular basis. Recognizing the existence of these conditions and the impact
of these developments on the process for approving proposed firearms transactions, the NICS
Program Office established the State Statute team. This team provides the NICS management with
information regarding the details of, and the consequences of, any pending or approved state and
federal legislation. In addition, the team assists the NICS Examiners daily with statutory interpretation
and applicability when conducting research during background investigations.
The year 2000 brought two significant changes in state legislation regarding the issues of firearm
transfers at gun shows and state participation levels with the NICS. The two states involved in these
changes are Oregon and Colorado.
Oregon
In 2000, the state of Oregon opted to fund the establishment of a state POC18 to handle the
processing of all firearm transactions for their state. Prior to this initiative, the state of Oregon
processed their own transactions for the sale of handguns, while the FBI handled the processing of
background transactions for the sale of long guns. December 8, 2000, marked the first day of
operations for Oregon as a full POC for the NICS. Although regulated by federal POC guidelines,
some provisions allow for areas of variance when compared to the operation of the national program.
Some of those differences are discussed in the following table :
18
See Oregon Gun Firearms Transaction Law, O.R.S. 166.412, for additional information regarding the
establishment of Oregon as a NICS POC.
________________________________________________________________________________________
30
Table 5
Operational Differences Between State and National Background Check Programs
____________________________________________
National NICS Program Oregon NICS Program

NTN,19 provided after the completion of STN, provided after the completion of
a background check, is valid for 30 days a background check, is valid for 24
if transaction is approved hours if transaction is approved
Contact with the FFL regarding the status The state POC should respond to the
of a background check is required upon firearm transferor within 30 minutes of
the third business day 20 subsequent receiving the request providing an
to the date the check was initiated by the estimate of the time needed to
FFL determine a final status
The following databases are referenced in The following databases are

a NICS background check - referenced by the state of Oregon -
1) III 1) Oregon criminal history system
2) NCIC 2) Oregon Mental Health database
3) NICS Index 3) Oregon Stolen Guns system
4) The NICS
The NICS is prohibited from charging a The state POC is permitted to charge
fee for criminal background inquiries a fee, not to exceed authorized
amounts as set forth in the statute and
the fee is per individual and not per
firearm
19
STN represents "State Transaction Number" which is linked through the national system with an
assigned NTN.
20
According to federal regulation, the NICS has three business days after the date the check is requested
to issue a denial proceed. This is not a waiting period. However, NICS Examiners will continue to request and
research applicable information for an extended period to try and obtain needed information if the transaction is a
default proceed with no resolution after three days.
________________________________________________________________________________________
31
Along with the passage of the Oregon Firearms Transaction Law, Oregon created
provisions regulating the sale of firearms at Oregon gun shows.21 Adopted in 2000, Section 7 of the
Oregon gun show law states that transferors other than gun dealers may not transfer a firearm at a gun
show unless the transferor:
Requests a criminal background check prior to completing the transfer.

Receives notification that the recipient is qualified to complete the transfer.
Has the recipient complete the Oregon Firearms Transfer Record Form.
Completes the transfer through a gun dealer.
Colorado
The state of Colorado passed legislation in 2000 regulating the sale of firearms at gun shows.
The Colorado legislation:
Requires background inquiries on all gun purchases at gun shows with the exception of
antique guns, curios, and relics.
Requires a designated licensed gun dealer to obtain background inquiries, and to keep
records of purchases as if he or she would be selling, renting, or exchanging at retail.
Defines a gun show as any event or function where 25 or more guns are offered or
exhibited for sale, transfer, or exchange, or at least three gun owners exhibit, sell, offer
for sale, transfer, or exchange guns.
Creates misdemeanor penalties for violation of the provision punishable by jail, fines, or
both.
As referred to above, Colorado law now requires at least one designated licensed gun dealer to
obtain background inquiries on behalf of non-licensed sellers at gun shows. The licensed gun dealer is
permitted to charge a fee of up to ten dollars for this service. The licensed dealer is also required to
keep records of guns sold by non-licensed sellers at gun shows. Because of such record-keeping,
virtually every gun purchased at a Colorado gun show and subsequently used in a crime will be
traceable. The sponsors of the legislation hope these provisions will reduce the number of guns
purchased at gun shows by persons who are prohibited from possessing guns, such as criminals and
minors. This statute took effect on March 31, 2001.
21
Under Oregon law, a "Gun Show" is defined as an event where more than 25 firearms are on site and
available for transfer.
________________________________________________________________________________________
32
Exhibit O
Original Letter
On November 10, 1998, the Bureau of Alcohol, Tobacco and Firearms (ATF) sent an open
letter to all Oregon Federal Firearms licensees advising you of your responsibilities under
the permanent provisions of the Brady law. The permanent provisions of the Brady law
provide for the establishment of a National Instant Criminal Background Check System
(NICS) that licensees must contact before transferring a firearm to unlicensed individuals.
In this letter, ATF advised you that the State of Oregon would act as the point of contact for
NICS checks for handgun transactions and the Federal Bureau of Investigation would
conduct NICS background checks for all long gun transactions.
The provision of Oregon State law regarding all firearms background checks was recently
amended. Effective December 8, 2000, the Oregon State Police will act as the point of
contact for all firearms background checks (handguns and long guns). To request a NICS
check for any firearm transaction you now must contact the Oregon State Police at 1-800-
432-5059.
As a reminder, you must comply with the following steps prior to transferring a firearm to
anyone who is not a licensee:
1. Have the transferee complete and sign ATF Form 4473, Firearms Transaction Record.
2. Verify the identity of the transferee through a government-issued photo identification
(for example, a drivers license).
3. Contact NICS through the Oregon State Police. You will get a response from the
system advising you whether to proceed with the sale or to delay or deny the
transaction. If you get a "delayed" response and there is no additional response from
the system, you may transfer the firearm after three business days have lapsed. Of
course, you must still comply with any waiting periods under State law.
4. If you have initiated a NICS check for a proposed firearms transaction, but the
transfer of the firearm is not completed, you must retain the Form 4473 in your
records for a period of not less than 5 years. If the transfer is completed, the Form
4473 must be retained for at least 20 years.
Questions
If you have any questions, please contact your local ATF office. Questions regarding
operational issues for all firearm transactions should be directed to the Oregon State Police
at (503) 378-3070.
John P. Malone
Assistant Director
Firearms, Explosives and Arson
Exhibit P
Federal Bureau of Investigation
Criminal Justice Information Services Division
National Instant
Criminal Background
Check System
(NICS)
Operations 2005
-------------------------------------------------------------------------------------------------------------------
NICS Operations 2005 January 2006
As a result of legislation passed on April 6, 2005, the state of Georgia ceased operations as
a Full POC for the NICS effective July 1, 2005. As such, the NICS Section initiated a transition
plan which included the enrollment of Georgia's FFLs to conduct business with the NICS Section.
The NICS Section received its first Georgia firearm check on June 20, 2005, via the NICS
E-Check. As a result of Georgia's change in NICS participation status, the NICS Section has
assumed the processing of all background check inquiries submitted via Georgia's FFLs. This
change in participation marked the most recent of many state-initiated modifications to state
participation with the NICS (reference Figure 3).
Figure 3
Historical Changes in NICS State Participation as of December 31, 2005
AK
WA NH
MT VT ME
ND MN
OR
ID WI
SD NY MA
WY MI
PA RI
NE IA
NV OH CT
UT IL IN
CA CO WV NJ
KS VA
MO KY DE
TN NC MD
HI AZ NM OK AR SC DC
MS
N. Mariana Islands LA AL GA
TX Puerto Rico
Guam
American Samoa Virgin Islands
FL
Colorado: Ceased operations as a Partial POC in March 1999 and subsequently

resumed operations as a Full POC in August 1999.
South Carolina: Ceased operations as a Full POC in October 1999.
Oregon: Implemented Full-POC operations in December 2000.
Vermont: Ceased operations as a Full POC in February 2002.
Arizona: Ceased operations as a Full POC in August 2002.
Indiana: Ceased operations as a Partial POC in October 2003.
New York: Reclassified as Non-POC in September 2004.
Georgia: Ceased operations as a Full POC in July 2005.
-------------------------------------------------------------------------------------------------------------------
NICS Operations 2005 6 January 2006
Exhibit Q
Original Letter
On November, 13, 1998, the Bureau of Alcohol, Tobacco and Firearms (ATF) sent an open
letter to all South Carolina Federal Firearms licensees advising you of your responsibilities
under the permanent provisions of the Brady law. This letter advised you that the State of
South Carolina would act as the point of contact for background checks through the National
Instant Criminal Background Check System (NICS) for all firearms transactions. The South
Carolina Law Enforcement Division has now notified ATF and the Federal Bureau of
Investigation (FBI) that they will cease operations as the NICS point of contact on
September 30, 1999.
Therefore, beginning October 1, 1999, in order to initiate a NICS check for any firearm,
South Carolina licensees must contact the FBIs NICS Operations Center by dialing 1-877-
FBI-NICS (1-877-324-6427). Your call will be answered by an automated menu that will
allow you to select from several customer services, including initiating a NICS background
check.
Licensees must be enrolled with the FBI before they can initiate NICS checks through the
FBIs NICS Operations Center. Licensees who are not currently enrolled are advised to do so
upon receipt of this letter. To enroll, call the NICS Operations Center at 1-877-444-NICS. In
addition, you are reminded that you should continue to contact the South Carolina Law
Enforcement Division for background checks through September 30, 1999.
Also as a reminder, you must comply with the following steps prior to transferring a firearm:
(for example, a drivers license).
3. Contact NICS. You will get either a proceed, denied, or delayed response from
the system. If you get a delayed response, and there is no additional response
from the system, you may transfer the firearm after three business days have
elapsed. Of course, you must still comply with any waiting period requirements
under State law.
All other information contained in the November 13, 1998, letter is correct. We apologize for
any inconvenience this change may have caused.
Jimmy Wooten
Assistant Director
Exhibit R
Original Letter
On October 26, 1998, the Bureau of Alcohol, Tobacco and Firearms (ATF) sent an open
letter to all Vermont Federal firearms licensees advising you of your responsibilities under
the permanent provisions of the Brady law. This letter advised you that the State of
Vermont would act as the point of contact for background checks through the National
Instant Criminal Background Check System (NICS) for all firearms transactions.
The State of Vermont has advised us that effective February 1, 2002, it will no longer act as
a point of contact for NICS checks. We understand that there is a possibility that the
Vermont Legislature may extend that date. If so, we will advise you of any changes.
However, in the absence of any further legislation, the Federal Bureau of Investigation (FBI)
will assume responsibility for conducting NICS checks for firearms transactions in Vermont
on February 1, 2002.
Therefore, beginning February 1, 2002, in order to initiate a NICS check for any firearm,
Vermont licensees must contact the NICS Operations Center of the FBI by dialing 1-877-
FBI-NICS (1-877-324-6427). Your call will be answered by an automated menu that will
allow you to select from several customer services including initiating a NICS background
check.
Licensees must be enrolled with the FBI before they can initiate NICS checks through the
FBIs NICS Operations Center. Licensees who are not currently enrolled are advised to do so
upon receipt of this letter. To enroll, call the NICS Operations Center at 1-877-444-NICS.
Also, as a reminder, you must comply with the following steps prior to transferring a
firearm:
document (for example, a drivers license).
3. Contact NICS. You will get either a proceed, denied, or delayed response from
the system. If you get a delayed response and there is no additional response from
the system, you may transfer the firearm after three business days have elapsed. Of
course, you must still comply with any waiting period requirements under State law.
All other information contained in the October 26, 1998, letter is correct. If you have any
questions, please contact the ATF Brady Operations Branch at (866) 360-3418 and select
Brady Operations Branch from the voice mail menu.
John P. Malone
Assistant Director
Exhibit S
Bureau of Alcohol, Tobacco,

Firearms and Explosives
Washington, DC 20226
April 29, 2005
Open Letter to All Georgia Federal Firearms Licensees
The purpose of this letter is to inform you that on July 1, 2005, the Georgia Crime Information Center
(GCIC) will cease to operate as the point of contact (POC) for the National Instant Background Check
(NICS) program, and to further advise you of the affect these changes may have on firearms transactions
conducted under your Federal firearms license.
In recent letters from the GCIC and FBI NICS you were advised that you would be receiving an
enrollment packet from NICS. You are required to enroll in order to request NICS background checks for
firearms sales. As with all Federal laws and regulations that govern your firearms business, you need to
comply with the regulations set forth in the packet provided to you by NICS. You should know that if the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) discovers violations upon inspection, there
can be a number of possible consequences, including recommendations for warning letters, warning
conferences, and in instances of willful offenses, license revocation or criminal prosecution. In order to
achieve our shared goal of ensuring proper and accurate business practices, ATF must take appropriate
administrative or criminal action when voluntary compliance is not achieved. This is critical to carrying
out our mission to ensure that criminals and terrorists do not gain access to firearms and to protect the
public.
We would like to emphasize the importance of the partnerships that have been established between ATF,
the FBI NICS and the firearms industry, and to reinforce our joint responsibilities under the Gun Control
Act. Your compliance with these obligations is critical to the prevention of terrorism, firearms trafficking,
and other related criminal activities. In turn, ATF is dedicated to helping you fulfill these duties, thereby
making our communities safer.
Should you have any questions concerning this letter and your conversion to the FBI NICS program,
please contact your local ATF office or NICS Customer Service at (877) 444-6427.
Lewis P. Raden
Assistant Director
Enforcement Programs and Services
Exhibit T
Original Letter
On March 2, 1999, the Bureau of Alcohol, Tobacco and Firearms (ATF) sent an open letter to
all Colorado Federal firearms licensees advising you that the State of Colorado would no
longer act as the point of contact for background checks through the National Instant
Criminal Background Check System (NICS) for firearms transactions. The Colorado
Department of Public Safety recently notified ATF that the State of Colorado will again act as
the point of contact for NICS checks for all firearms transactions.
Therefore, beginning August 1, 1999, in order to request a NICS check for any firearm
transaction, you must contact the Colorado Bureau of Investigation by dialing 1-800-486-
2023. Licensees in the Denver area should dial 303-239-4681.
As a reminder, you must comply with the following steps, in addition to any State
requirements, prior to transferring a firearm:
2. Verify the identity of the transferee through a Government-issued photo
identification (for example, a drivers license).
3. Contact NICS through the Colorado Bureau of Investigation. You will get a response
from the system advising you whether to proceed with the sale or to delay or deny
the transaction. If you get a delayed response, and there is no additional response
from the system, you may transfer the firearm after three business days have
elapsed. Of course, you must still comply with any waiting period requirements
under State law.
If you have any questions, please contact your local ATF office or the Colorado Bureau of
Investigation.
Jimmy Wooten
Assistant Director
Exhibit U
Exhibit V
51
Exhibit W
Exhibit X
FINANCIAL IMPACT OF QUESTION 1
FINANCIAL IMPACT CANNOT BE DETERMINED
OVERVIEW
Question 1 proposes to amend various sections of the Nevada Revised Statutes to require that a
background check be conducted by a licensed dealer before a firearm is transferred from one
unlicensed person to another unlicensed person (private-party sales) under certain circumstances.
Question 1 also establishes criminal penalties for violations of these provisions by unlicensed
persons who sell or transfer firearms.
FINANCIAL IMPACT OF QUESTION 1
Pursuant to the provisions of the federal Brady Handgun Violence Prevention Act (Public Law 103-
159), federally licensed firearm dealers are required to obtain a background check on an individual
before a firearm may be purchased by that person. The law requires that the background check be
conducted either directly through the National Instant Criminal Background Check System (NICS)
maintained by the Federal Bureau of Investigation (FBI), or through a point of contact (POC)
established within each state.
The Department of Public Safety has indicated that the Departments Criminal History Repository
(CHR) serves as Nevadas POC based on the provisions of the Brady Act. As a result of this POC
status, licensed firearm dealers contact the CHR to initiate background checks on retail firearm
sales instead of contacting NICS directly. Currently, the CHR assesses a $25 fee for each
background check that is conducted for this purpose.
The Department of Public Safety has indicated that passage of Question 1 would require a
renegotiation of POC status or the development of an alternative agreement with the FBI in order to
accommodate the provisions of the question. Based on this requirement, the Fiscal Analysis
Division has identified three potential scenarios that could occur due to the implementation of
Question 1:
1. If the agreement between the State and the FBI required the CHR to perform all background
checks, it would result in additional expenditures of approximately $650,000 per year.
However, the Department has estimated that the additional revenue that would be generated
from the $25 fee imposed on the private-party background checks would be sufficient to
defray these expenditures, which would result in no financial impact upon state government.
2. If the agreement between the State and the FBI allows licensed firearms dealers to contact
NICS directly to conduct federal background checks for private-party sales, but allows the
State to maintain POC status and continue to conduct background checks through the CHR
for all other sales by licensed firearm dealers as is currently required by federal law, there
would be no financial impact upon state government.
3. If the agreement between the State and the FBI removes Nevadas POC status under the
Brady Act, licensed firearms dealers would be required to contact NICS directly to obtain
background check information for retail and private-party sales rather than contacting the
CHR. The Department has indicated that, if licensed dealers are required to access NICS
directly for background checks on all gun sales, this would result in the elimination of
approximately 13 positions and a loss in revenue of approximately $2.7 million per year,
which is used to support the current operations of the CHR. This loss in revenue would
result in a negative financial impact upon state government, as additional revenue would be
required from the State General Fund or other sources to supplant revenues used to support
the CHRs functions.
Because the Fiscal Analysis Division cannot determine what agreement may be reached between
the Department and the FBI with respect to Nevadas status as a POC state under the Brady Act,
the resultant financial impact upon state government cannot be determined with any reasonable
degree of certainty.
The provisions creating misdemeanor and felony provisions for violations of the requirements of
Question 1 may increase the workload of various state and local government agencies with respect
to enforcement, investigation, incarceration, probation, and parole. The Department of Corrections,
the Department of Public Safety, and the Fiscal Analysis Division are unable to determine the
number of persons who may be investigated, prosecuted, or incarcerated as a result of violations of
these provisions. Thus, the resultant financial effect upon state and local government cannot be
determined with any reasonable degree of certainty.
The provisions creating misdemeanor and felony provisions for violations of the requirements of
Question 1 will require two changes to the Nevada Offense Codes used in the CHR. The
Department of Public Safety has indicated that these changes can be accommodated with existing
staff, and that no additional financial impact would be incurred by the Department.
Prepared by the Fiscal Analysis Division of the Legislative Counsel Bureau August 12, 2016
6/2/17, 7(43 PM

Exhibit Y
Lexis Advance
Research
Document:State Employees Ass'n v. Daines, 108 Nev. 15
State Employees Ass'n v. Daines, 108 Nev. 15
Copy Citation
Supreme Court of Nevada
January 2, 1992 ; January 2, 1992, FILED
No. 22590
Reporter
108 Nev. 15 * | 824 P.2d 276 ** | 1992 Nev. LEXIS 8 ***
STATE OF NEVADA EMPLOYEES ASSOCIATION, INC., A NEVADA CORPORATION, JEANINE ELLIOTT,
BONNIE ALLEC, CARL BARBEE, HARRY GAMMIE, PAULA TLACHAC, NOVELLA WATSON-LEE AND FRED
SUWE, Petitioners, v. DARREL DAINES, IN HIS OFFICIAL CAPACITY AS CONTROLLER OF THE STATE
OF NEVADA, Respondent
Prior History: [***1] Original petition for a writ of mandamus.
Disposition: Petition granted.
Core Terms
appropriated, salary increase, salaries, board of examiners, funds, state board of examiners, pay
raise, employees, agencies, disburse, provides, classified, increases, warrants, amounts, defer,
appropriation of money, state controller, executive power, Budget
https://advance.lexis.com/documentprint/documentprintclick/?pdmf7ff25bae3e&ecomp=fgk_k&prid=8596d913-0953-481f-8302-c5d2a5801b7a Page 1 of 8
6/2/17, 7(43 PM
Case Summary
Procedural Posture
Petitioners, state employees and employee association, sought a writ of mandamus compelling
respondent state controller to issue warrants for the employees' salaries, including a four
percent pay raise.
Overview
The state legislature passed and the governor signed a bill appropriating funds for a four percent
salary increase for classified state employees. The board of examiners deferred allocation and
disbursement of the funds appropriated for the salary adjustments because of a projected
budget shortfall. Consequently, the controller refused to issue warrants sufficient to pay the
salary increases on the date specified in the bill. The employees filed this action to compel
issuance of the warrants. The court concluded that pursuant to Nev. Rev. Stat. 227.160 the
controller had a non-discretionary duty resulting from his office to pay the salary increases
enacted by the legislature. The executive branch, represented by the board of examiners whose
membership included the governor, was not empowered to disregard the mandate of the
legislature that certain salaries be paid. There was no constitutional or statutory authority for
the actions of the board of examiners. A writ of mandamus was issued to compel the controller
to issue the warrants.
Outcome
The court granted a writ of mandamus as requested by the employees and the employee
association.
LexisNexis Headnotes
Counsel: Norah Ann McCoy , Carson City, for Petitioners.
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Frankie Sue Del Papa , Attorney General and Kateri Cavin and James T. Spencer , Deputy
Attorneys General, Carson City, for Respondent.
Judges: Mowbray , C. J., Springer , Steffen and Young , JJ., and Kosach , D. J., 6 concur.
Opinion by: PER CURIAM
Opinion
[*17] [**277] Petitioners in this original action seek a writ of mandamus compelling respondent
Darrel Daines, Controller of the State of Nevada, to issue warrants for petitioners' salaries, including
the four percent pay raise appropriated by the 1991 Nevada State Legislature to become effective
October 1, 1991. 1991 Nev. Stat. ch. 496 at 1515 (approved June 30, 1991).
On December 13, 1991, following the oral arguments in this matter, this court directed the clerk of
this court to issue a writ of mandamus compelling respondent forthwith to issue warrants sufficient to
pay the salary increases provided to the classified employees of the state by the legislature. We
specifically directed such salary increases to be paid retroactively from October 1, 1991, and we
indicated that a formal opinion setting forth the grounds for our decision would be forthcoming. This
opinion constitutes our [***2] final resolution of this proceeding.
FACTS
On June 30, 1991, the Nevada State Legislature passed a bill appropriating funds for a four percent
salary increase for classified state employees. The salary increase was to become effective October 1,
1991. 1991 Nev. Stat. ch. 496 at 1515 (Assembly Bill 815). The governor signed the bill (hereinafter
"the act") into law.
On September 26, 1991, at a meeting of the Nevada State Board of Examiners, the clerk of the board
of examiners, based on projected revenue shortfalls, recommended that "the Board of Examiners
defer allocation and disbursement of the funds appropriated for salary adjustments for up to three
months from the time the legislature contemplated their enactment." The board of examiners
unanimously adopted the clerk's recommendation.
As a result of the action of the board of examiners, the respondent state controller refused to issue
warrants sufficient to pay the authorized salary increases in the paychecks delivered to state
employees beginning on October 11, 1991. This petition followed.
DISCUSSION
Petitioners contend that, pursuant to NRS 227.160, the state controller has a non-discretionary duty
resulting from his [***3] office to [*18] pay the salary increases enacted by the legislature. 1
We agree. This court has held that "[a]n appropriation of money to a specific object would be an
authority to the proper officers to pay the money, because the auditor is authorized to draw his
6/2/17, 7(43 PM
warrant upon an appropriation, and the treasurer is authorized to pay such warrant if he has
appropriated money in the treasury." State v. Eggers, 29 Nev. 469, 481, 91 P. 819, 823 (1907)
(quoting Ristine v. State, 20 Ind. 339). Thus, unless the act itself allows the board or the governor
discretion in the payment of the salary increases, or the board or the governor are empowered by the
constitution or by statute to defer payment of legislatively authorized [**278] salary increases, the
controller has an absolute duty pursuant to NRS 227.160 to issue his warrants according to the
legislative will.
[***4] Respondent essentially concedes this point and argues correctly that "the proper analysis of
this matter begins and ends with the classified pay bill." HN2 Section 1(2) of the act provides:
2. The state board of examiners, upon recommendation of the director of the

department of administration, may allocate and disburse to the various departments,
commissions and agencies of the State of Nevada, out of the money appropriated by this
section such sums of money as may from time to time be required, which when added
to the money otherwise appropriated or available equals the amount of [*19] money
required to pay the salaries of the classified employees of the respective departments,
commissions and agencies under the adjusted pay plan.
1991 Nev. Stat. ch. 496, 1, at 1515 (emphasis added). 2
[***5] Respondent argues that the legislature's use of the word "may" rather than "shall" in
sections 1(2), 2(2) and 3(3) indicates that allocation and disbursement of the appropriated amounts
to pay salary increases is discretionary with the board of examiners and the Director of the
Department of Administration. We disagree.
This court has stated that in statutes, "may" is permissive and "shall" is mandatory unless the statute
demands a different construction to carry out the clear intent of the legislature. Givens v. State, 99
Nev. 50, 54, 657 P.2d 97, 100 (1983). This court has also held, however, that the term "may" in a
statute is conditional rather than permissive if the purpose of the statute requires that construction.
Nev. Real Est. Comm. v. Ressel, 72 Nev. 79, 82, 294 P.2d 1115, 1116 (1956) ("may" in a statute was
not permissive; the statute created a duty to act upon the occurrence of a specified condition, leaving
"no area for the exercise of discretion"). This construction of the word "may" has been recognized in
numerous cases, especially where used to define the duties of a public officer. Id.
Close examination of [***6] the language of the act in this case reveals that "may" in the act is
conditional rather than permissive. HN3 Section 2(3) of the act provides that the state board of
examiners "may allocate and disburse . . . out of the money appropriated" such sums of money as
"may from time to time be required" to "pay the salaries of the classified employees . . . under the
adjusted pay plan."
The "pay plan" is the grade and step salary schedule for classified employees created by the
Department of Personnel pursuant to NRS 284.175. Clearly, the legislature intended that the
Department of Personnel would adjust the pay plan by approximately four percent. 3 The language
of the act requires the [*20] board of examiners to allocate additional funds to state agencies to
meet these pay increases upon the conditions set forth, i.e., when the funds previously appropriated
for salaries are insufficient to pay the salaries required under the revised grade and step pay plan.
4 [**279] We conclude, therefore, that the governor and the board's decision to defer the
legislatively enacted salary increases cannot be justified under the language of the act.
[***7] Respondent asserts, nevertheless, that an appropriation creates no duty that the
appropriated money actually be spent. Respondent argues that because public officials are specifically
prohibited [***8] from spending more than the amount appropriated but not specifically enjoined
from spending less, it is permissible to spend less. See NRS 353.260(1). The instant case is not,
however, a case of a public official spending less than the amount appropriated by the legislature. In
this case, the legislature enacted a pay raise, designated a date on which the raise would become
effective, and appropriated funds to accomplish its purpose. The executive branch has attempted to
impound the funds specifically appropriated for this salary increase in a manner that would defeat the
legislative purpose and essentially rewrite the act. The executive is not empowered to disregard the
mandate of the legislature that certain salaries be paid. See Ellis v. City of Valdez, 686 P.2d 700, 705
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(Alaska 1984) (recognizing a distinction between cases where the executive has attempted to
impound funds and cases in which an agency has exercised discretion with respect to the expenditure
of funds authorized for particular purposes within the expertise of the agency).
Respondent contends that the governor could order deferral of disbursement of the salary increases
pursuant to the "supreme [***9] executive power" vested in him by Article 5, Section 1 of the
[*21] Nevada Constitution. 5 Respondent has failed to cite any authority, however, for the
proposition that the supreme executive power of the State of Nevada includes the power to disregard
acts of the legislature. Indeed, HN4 the governor has a constitutional duty to see that the laws
enacted by the legislature are faithfully executed. Nev. Const. art. 5, 7; Galloway v. Truesdell, 83
Nev. 13, 20, 422 P.2d 237, 242 (1967) (executive power extends to carrying out and enforcing laws
enacted by the legislature).
Further, it is well established that HN5 the power of controlling the public purse lies within
legislative, not executive authority. See, e.g., State v. Fairbanks North Star Borough, 736 P.2d 1140
(Alaska 1987) (a statute [***10] purporting to give the governor the power to withhold or reduce
the budget of state agencies was struck down as an unconstitutional delegation of legislative power);
State v. State Board of Finance, 367 P.2d 925 (N.M. 1961) (statute purporting to permit state board
of finance to reduce annual operating budgets struck down as violative of separation of powers
doctrine); County of Oneida v. Berle, 404 N.E.2d 133 (N.Y. 1980) (governor could not reduce a
lawfully enacted appropriation); see also House of Representatives v. Martinez, 555 So.2d 839, 845
(Fla. 1990) (governor may not veto one of several funding sources; he must veto all or none). Thus,
the action of the governor was not authorized by his "supreme executive power."
Similarly, the board of examiners had no constitutional authority to defer salary increases enacted by
the legislature and signed into law by the governor. HN6 Article 5, Section 21 of the Nevada
Constitution provides:
The Governor, Secretary of State and Attorney General . . . shall also constitute a Board
of Examiners, with power to examine all claims against the State (except salaries or
compensation of Officers [***11] fixed by law) and perform such other duties as may
be prescribed by law, and no claim against the State (except salaries or compensation of
Officers fixed by law) shall be passed upon by the Legislature without having been
considered and acted upon by said "Board of Examiners."
[**280] This provision empowers the board of examiners to examine claims (except salaries or
compensation of officers) against the state before the legislature passes upon such claims; there are
no [*22] provisions in this section allowing the board to defer payment of a legislatively enacted
salary increase after the act has been signed into law by the governor. Therefore, we conclude that
there is no constitutional authority for the action of the board.
Respondent contends that the board's action was authorized by NRS 353.225, which provides for a
reserve to meet emergencies. HN7 NRS 353.225 (emphasis added) provides:
1. In order to provide some degree of flexibility to meet emergencies arising during each
fiscal year in the expenditures for the state distributive school account in the state
general fund and for operation and maintenance of the various departments, institutions
and agencies of the executive department [***12] of the state government, the chief,
with the approval in writing of the governor, may require the state controller or the head
of each such department, institution or agency to set aside a reserve in such amount as
the chief may determine, out of the total amount appropriated or out of other funds
available from any source whatever to the department, institution or agency.
2. At any time during the fiscal year this reserve or any portion of it may be returned to
the appropriation or other fund to which it belongs and may be added to any one or
more of the allotments, if the chief so orders in writing.
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This statute authorizes "the chief" of the Budget Division of the Department of Administration, with
the approval of the governor, to require the controller of the heads of various agencies within the
executive branch of government to set aside reserves to meet emergencies. We cannot conclude,
however, that the legislature intended, when it enacted this statute, to endow the chief of the Budget
Division of the Department of Administration or the governor with power to invalidate the acts of the
legislature. Nor did the legislature intend NRS 353.225(2) to be construed as an [***13]
authorization for a blanket executive repeal of a pay raise enacted by it. The provision was instead
intended to provide a means for the executive and the individual agencies to provide flexibility to
meet emergencies by utilizing available monies from the various budgets to fund a reserve for use at
a later date. We conclude that this statute, at best, is irrelevant to this case. Accordingly, we decline
to consider the constitutional challenges to the statute.
CONCLUSION
The governor and the board of examiners have no constitutional or statutory authority to defer the
salary increases enacted [*23] by the legislature. Thus, the action of the board taken on
September 26, 1991, was a nullity, and the state controller has an absolute duty to issue his warrants
pursuant to the legislative mandate. A writ of mandamus may issue to compel the performance of an
act which the law especially enjoins as a duty resulting from an office, trust or station and where
there is no plain, speedy and adequate remedy at law. See NRS 34.160; Choose Life Campaign '90' v.
Del Papa, 106 Nev. 802, 801 P.2d 1384 (1990). Accordingly, we grant this petition. [***14]
Footnotes
6
The Honorable Steven R. Kosach , Judge of the Second Judicial District Court, was
designated by the Governor to sit in place of The Honorable Robert E. Rose , Justice. Nev.
Const. art. 6, 4.
1
HN1 NRS 227.160 (emphasis added) provides, in pertinent part:
1. The state controller shall:
(a) Audit all claims against the state, for the payment of which an appropriation
or authorization has been made but of which the amount has not been definitely
fixed by law, which have been examined and passed upon by the state board of
examiners, or which have been presented to the board and not examined and
passed upon by it within 30 days from their presentation.
(b) Allow of those claims mentioned in paragraph (a) as not having been passed
upon by the state board of examiners within 30 days after presentation the
whole, or such portion thereof as he deems just and legal; and of claims
examined and passed upon by the state board of examiners, such an amount as
he decrees just and legal not exceeding the amount allowed by the board.
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....
3. For the purpose of satisfying himself of the justness and legality of any claim,
he may examine witnesses under oath and receive and consider documentary
evidence in addition to that furnished him by the state board of examiners. He
shall draw warrants on the state treasurer for such amounts as he allows of the
character above described, and also for all claims of which the amount has been
definitely fixed by law and for the payment of which an appropriation or
authorization has been made.
2
The language of sections 2(2) and 3(3) is identical to that of section 1(2) except that
section 2(2) applies to employees of the department of motor vehicles and public safety, the
public service commission, and the attorney general's office, and section 3(3) applies to the
University of Nevada System.
3
The act refers to a raise of approximately four percent, rather than four percent, because
the grade and step pay schedule created by the Department of Personnel contains specific
dollar figures derived by multiplying present amounts by 1.04. The resulting figures must be
rounded to the nearest whole dollar amounts.
4
In sections 6 and 7 of the act, dealing with potential pay raises in the second biennium,
the act sets forth certain amounts that are "contingently appropriated" to provide additional
salary increases depending on the projected balance. These provisions do not purport to give
the board of examiners discretion to disburse or not disburse the amounts needed. Rather,
they direct the board to implement certain pay raises if the projected balances support the
increases. Notably, the legislature did not make the payment of the October 1, 1991, pay
raises dependent on any revenue or state general fund projections. This supports our
conclusion that the legislature enacted salary increases and provided a fund from which to
pay the increases; the legislature did not, as contended by respondent, simply appropriate
funds for discretionary distribution by the executive if it determined a pay raise was
warranted.
5
Article 5, Section 1 of the Nevada Constitution provides that "[t]he supreme executive
power of this State, shall be vested in a Chief Magistrate who shall be Governor of the State
of Nevada."
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Content Type: Cases
Terms: State Employees Assn v. Daines, 108 Nev. 15
Narrow By: -None-
Date and Time: Jun 02, 2017 07:43:21 p.m. EDT
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Exhibit Z
Lexis Advance
Research
Document:State ex rel. White v. Dickerson, 33 Nev. 540
State ex rel. White v. Dickerson, 33 Nev. 540
Copy Citation
Supreme Court of Nevada
October, 1910, Decided
No. 1892
Reporter
33 Nev. 540 * | 113 P. 105 ** | 1910 Nev. LEXIS 39 ***
THE STATE OF NEVADA, EX REL. L. F. WHITE, RELATOR, v. D. S. DICKERSON, LIEUTENANT-
GOVERNOR AND ACTING GOVERNOR OF THE STATE OF NEVADA, RESPONDENT.
Prior History: [***1] ORIGINAL PROCEEDING. Mandamus by the State, on the relation of L. F.
White, against D. S. Dickerson, Lieutenant-Governor and Acting Governor of Nevada. Writ granted,
and service and execution thereof suspended.
STATEMENT OF FACTS
Relator alleges that he is a citizen and taxpayer of the State of Nevada, and that he brings and
prosecutes this proceeding in his own behalf and for and on behalf of all other taxpayers of the state;
that the owners and holders of 145 bonds of the State of North Carolina, of the par value of $
401,170, donated and tendered them to respondent, as acting governor, for and on behalf of the
state, pursuant to the terms and requirements of an act of the legislature entitled "An act to require
the acceptance and collection of grants, devises, bequests, donations and assignments to the State of
Nevada," approved February 26, 1901 (Stats. 1901, c. 19), and that the respondent failed and
refused to accept or receive the bonds as required by the terms of this act.
In his answer respondent admits that the bonds were tendered to him as lieutenant and acting
governor, pursuant to this act of the legislature, and that he refused to accept or receive
them [***2] on behalf of the state as a donation or otherwise. He alleges in the answer, upon
information and belief, that the bonds are a part of several bond issues of the State of North Carolina
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made in the years 1868, 1869, and 1870, in aid of certain railroad companies, aggregating $
11,407,000, and that these bond issues were authorized and made as a result of a conspiracy to
defraud the State of North Carolina, and without any valuable consideration.
He further alleges that the bonds were declared invalid and uncollectible by an act of the legislature of
the State of North Carolina, ratified November 23, 1874, and by a constitutional amendment adopted
by the people of that state in 1880; that the 145 bonds tendered are a part of 11,407 bonds
authorized and issued, leaving 11,262 bonds of the par value of $ 11,262,000, owned by individuals
residing out of the State of Nevada, who are without any legal right or remedy for the enforcement of
the payment thereof, and which bonds remain unpaid by reason of the inhibition of the eleventh
amendment of the constitution of the United States, which provides: "The judicial power of the United
States shall not be construed to extend to any suit [***3] in law or equity commenced or prosecuted
against one of the United States by citizens of another state or by citizens or subjects of any foreign
state."
Respondent has further answered that the 145 bonds tendered are barred by the statute of
limitations of the State of North Carolina; that by reason of the declaration of invalidity of these
bonds by the legislature of that state, and by the people as expressed in the constitutional
amendment of 1880, and because of the fact that the owners or holders of these bonds are without
legal remedy or right to enforce collection owing to the eleventh amendment to the federal
constitution, and because the bonds are barred by the statute of limitations of the State of North
Carolina, they are without any real value in fact, unless it be a small speculative value arising out of
the possibility of an adjudication of their validity in the federal courts as a result of their acceptance
by the respondent, and the institution of suit by the State of Nevada or some other state under
similar circumstances to recover thereon; that the acceptance of the bonds would not benefit the
State of Nevada, or its university or public schools or charities, [***4] for the reason that the bonds
are of no value; that the acceptance of them would impose upon this state a heavy burden of
expense incident to the litigation necessary to their enforcement; that their acceptance and
attempted enforcement would tend to disturb the friendly relations now existing between the people
of the State of North Carolina and the people of the State of Nevada; that the tender of the bonds is
not made in good faith or for the purpose of donating to or bestowing upon the State of Nevada or its
university or schools or charities any valuable thing, but on the contrary for the sole purpose of
insuring the bringing of a suit in the federal courts by the State of Nevada against the State of North
Carolina for the enforcement of the payment of the bonds and interest coupons thereto attached, with
the desire and expectation on the part of the owners and holders of the bonds, over and above the
145 bonds tendered, the balance of the issues of bonds before mentioned, amounting to 11,262
bonds of the par value of $ 11,262,000, and of obtaining from the State of North Carolina, by reason
of such suit and adjudication, a compromise and settlement as to the other bonds so issued; [***5]
that the Nevada statute referred to before is violative of section 20, article 4, of our state
constitution, which provides: "The legislature shall not pass local or special laws in any of the
following enumerated cases, that is to say: * * * giving effect to any invalid deeds, will or other
instruments."
It is alleged in a supplemental answer that the holders of the bonds are without litigable right or
lawful forum or any remedy for their enforcement: First, because there is no law, either constitutional
or statutory, in the State of North Carolina permitting suit to be brought in the courts of that state
against the State of North Carolina, other than section 9, article 4, of the North Carolina constitution,
which provides: "The supreme court shall have original jurisdiction to hear claims against the state,
but its decisions shall be merely recommendatory; no process in the nature of an execution shall
issue thereon; they shall be reported to the next session of the general assembly for its action."
Second, that it has been held by the Supreme Court of North Carolina in the cases of William Horne v.
State, 84 N. C. 362, and Baltzer v. State, 104 N. C. 265, 10 S.E. 153, that [***6] even the
recommendatory jurisdiction given the supreme court by the constitutional provision above recited is
abrogated in respect to claims based upon any bonds issued by the State of North Carolina in the
years 1868, 1869, and 1870, by the provisions of section 6, article 1, of the constitution of that state,
being the amendment adopted in 1880 as before stated.
It is also alleged in the supplemental answer that the issuance of a writ of mandate against the
respondent requiring him to accept the bonds for the State of Nevada would be violative of article 3 of
the constitution, which provides that the powers of the state government shall be divided into
legislative, executive, and judicial departments, and that no person charged with the exercise of the
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powers properly belonging to one of these departments shall exercise any functions pertaining to
either of the others except in case therein expressly directed and permitted. And finally, that the
Nevada statute before mentioned, by its terms, vests in the governor of the state a discretionary
power in respect to the acceptance of any property that may be tendered him for the state, and that
he is not required to accept property [***7] under its provisions until after he has reported its tender
to the legislature.
Disposition: Writ granted.
Core Terms
bonds, courts, gift, mandamus, repudiated, holders, repeal, collection, donations, statute of
limitations, ministerial, statutes, questions, bequests, enjoined, duties, powers, vested, ministerial
act, assignments, provisions, enforcing, devises, usurp, executive officer, par value, the will,
individuals, conferred, declare
Case Summary
Procedural Posture
Petitioners, taxpayer and state of Nevada, filed for a writ to mandate that respondent governor
be required to accept 145 bonds on behalf of the state pursuant to a state statute.
Overview
The owners and holders of 145 bonds donated the bonds to the governor for acceptance on
behalf of his state pursuant to a state statute. The governor refused to accept the bonds from
the owners alleging that the bonds were issued as s result of a conspiracy to defraud the state
and did not hold any value. Petitioners brought suit requesting a writ to mandate the governor's
acceptance of the bonds. The court issued the writ. The court held that there was no evidence to
support the governor's claim that the bonds were the result of a conspiracy and had no real
value. The court further held that the statute that required the governor's acceptance of the
bonds did not require proof that the bonds had value. The court found that the bonds were
regular on their face and presumed to be of par value. The court held that the governor's
objections to his duties under the statute and whether or not he should be compelled to perform
them was question that the legislature should have decided. The court stayed execution of the
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writ to enable the legislature to hear the objections.
Outcome
The court issued the writ requiring the governor to accept the bonds but stayed the execution of
the writ pending the legislature's review of the statute.
LexisNexis Headnotes
Headnotes/Syllabus
Counsel: Campbell, Metson, Drew, Oatman & Mackenzie, for Petitioner:
This is a case involving purely public right.
The cases recited by respondent are not authorities to the point that in a case involving a matter
publici juris the court has any discretion to deny relief.
On the contrary there is an abundance of unquestioned authority on the proposition that in a case
involving a matter public juris the discretion which the court may exercise in a matter involving
private right does not exist.
In 19 Am. & Eng. Ency. Law, p. 753, it is said: "Public and Private Rights--Courts have discretion as to
issuing the writ in aid of private rights, but when it is invoked in matters of public right there is no
discretion." Citing State v. Lehre, 7 S. C. 270; State v. Doyle, 40 Wis. 220; New Haven Company v.
State, 44 Conn. 390.
In 26 Cyc., p. 146, it is said: "State Cases--Where the writ is applied for by the state for the public
benefit it has been held that the court has no discretion to refuse it."
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In 19 Am. & Eng. Ency. Law, p. 753, it is said: "Mandamus and injunction [***8] are upon the same
footing as regards the question of discretion." Citing Savanah Canal Co. v. Shuman, 91 Ga. 402.
In reference to this distinction between matters of private right and public right in so far as the
discretion of the court is concerned, in vol. 1, Spelling, Injunctions and Extraordinary Remedies, sec.
22, in reference to the writ of injunction, it is said: "A distinction has been drawn between cases
where it is sought in aid of private right, and where it is asked in some matter publici juris. In the
latter class of cases, it is held that the remedy being in the nature of a prerogative remedy, when
sought by the attorney-general in behalf of the people, courts have no judicial discretion in the matter
of granting the writ, but an absolute duty devolves upon them to exercise their jurisdiction to
accomplish the public object."
The case of State v. Doyle, supra, was an application for a writ of mandate to the secretary of state.
The court says: "It is true that courts have discretion in issuing writs of mandamus merely in aid of
private right. But when the writ is invoked on behalf of the state, as a pure prerogative writ, in
matters publici juris, there is no [***9] discretion. The writ goes ex debit justiciae, without
discretion."
In Attorney-General v. Railroad Companies, supra, the court says: "It is true that it is said that the
granting or withholding of an injunction rests in the sound discretion of the court. But that is judicial
discretion, not wilful choice. And the rule is applied to injunctions in aid of private remedies. The
same rule applies to mandamus in cases of private right. But it does not apply to the application of a
writ to things publici juris. There the writ goes ex debito justiciae. The court has no discretion to
withhold."
The case of New Haven Company v. State, 44 Conn. 376, was proceeding to compel a railroad
corporation to perform a public duty imposed upon it by law. Referring to the question of the
discretion of the court sought to be invoked by the respondent therein, the court says: "No doubt can
exist that in a case like the one in the court below, where the writ is applied for to enforce an act of
the legislature for the public benefit and there is no other adequate remedy for its enforcement, the
state or its attorney is entitled to the writ as of right, and there is no discretion in the court to
refuse [***10] it. (Tapping on Mandamus, 54, 56, 288; 2 Dil. on Mun. Corp., sec. 695.)"
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Admittedly the taxpayer, petitioner in the case at bar, sues in a purely representative capacity,
declaring upon purely public rights, the state being the petitioner on the relation only of the taxpayer.
The distinction which is made in the matter of discretion as applied to public right as distinguished
from private right beyond question renders inapplicable to the case at bar all the general authorities
cited by counsel. And we have been unable to discover any cases which militate against the doctrine
laid down in the authorities cited above as to the want of discretion where the subject-matter is
purely a matter publici juris.
But the case at bar, in addition to its not coming within the authorities cited as to discretion in
matters of private right, because involving purely public right, does not present any features which
would render such authorities applicable. The discretion which may be exercised in certain cases
involving private rights is not arbitrary discretion or one that may be exercised in accordance with the
will or inclination of the court, as distinguished from the will of the law. [***11] It must be a sound
legal discretion to be exercised in accordance with established rules of law. And if the petitioner's
right is clear the writ must issue, unless facts are presented which upon some well-established rule
would authorize the court to deny the writ. The authorities unanimously negative the proposition that
the court may refuse to issue the writ where the petitioner's rights are based upon statute upon any
theory that there is any impolicy or inexpediency in the provisions of the law or that the law violates
any principle of natural justice. There is no case which holds that the court has any discretion in
construing a statute.
In the famous case of Osborn v. United States Bank, 22 U.S. 738, 866, Chief Justice Marshall,
speaking for the court says: "Judicial power, as contradistinguished from the power of the laws, has
no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to
exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course
prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is
never exercised for the purpose [***12] of giving effect to the will of the judge; always for the
purpose of giving effect to the will of the legislature; or, in other words, to the will of the law."
In Spelling, vol. 2, sec. 1371, referring to the discretion vested in courts to deny the mandate where
private rights are involved, it is said: "When it is said that granting or refusing the writ rests in the
discretion of the court, it is not meant that the court's discretion is absolute, because where a clear
legal right to a writ of mandate is shown the court has no discretion about granting the writ."
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In Words and Phrases Judicially Defined, vol. 5, p. 4327, referring to cases involving private right, it is
said concerning the question of discretion in cases of mandate: "This discretion is a legal, not an
arbitrary, one and is to be exercised in accordance with the established rules of law. There is no
power to deny the writ arbitrarily where a case comes squarely within such rules."
In 19 Am. & Eng. Ency. Law, p. 753, it is said: "But in all cases where there is a clear legal right and
no other adequate remedy the writ ought to be granted in order to prevent failure of justice."
It is admitted that the [***13] statute involved in the case at bar is mandatory in its terms. If this
case comes within the terms of the statute, and we cannot conceive that it will be otherwise
determined, then the only matter that would appear to present itself for determination by this court
would be, What is the will of the law? The act being mandatory, and this case coming within its
provisions, there necessarily follows that the governor has a clear legal duty to accept the bonds in
question. That being so, and there being no other remedy at law, we take it that this court cannot
properly deny the writ upon any disinclination to interfere with the action of the governor. To do so
would appear to us to deny the writ upon the theory that this court should not seek to control the
discretion of the governor, and this would involve a finding that the governor was given discretion
under the statute.
If the will of the law be, as expressed by the legislature in the statute, that the duty shall be
mandatory, then we take it that the confidence which this court may have in the good judgment of
the governor in refusing the tender and the natural disinclination this court may feel to force the
governor to act contrary [***14] to his judgment cannot be proper matters upon which may be
based any "discretion" warranting the denial of the writ; and this is assuming, for the purpose of
argument, that the court would have any discretion in a matter of public right. If this court predicated
the refusal of the writ upon the above considerations, we submit that it would in effect be directly
subverting the purpose of the legislature to render the duty of the governor mandatory.
We are at a loss to see what features the case at bar presents which bring the case within any of the
well-established rules of law upon which a discretion to deny the writ may be predicated.
In State v. Cummings, 36 Mo. 263, 278, it is said: "It is not for the judiciary to inquire whether laws
violate the general principles of liberty or natural justice, or whether they are wise and expedient or
not. They can only declare whether they are repugnant to constitutional provisions and limitations. It
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would be a violation of well-established and safe principles for courts to resort to any other test.
There is no higher law by which we can be governed. An attempt by judicial construction to obstruct a
law, or a failure to enforce it, [***15] would be monstrous usurpation. We cannot make or repeal a
law; we are not entrusted with any such power. If it is wrong, unjust or oppressive, an appeal must
be made to the people in their political capacity at the poll, to apply the remedy. We will not attempt
to exercise judicial legislation. We can scarcely conceive of anything that would be a compensation for
introducing into our jurisprudence such a pernicious doctrine. The most odious and dangerous of all
laws would be those depending upon the discretion of judges. Lord Camden, one of the greatest and
purest of English judges, says 'that the discretion of a judge is the law of tyrants; it is always
unknown; it is different in different men; it is casual, and depends upon constitutions, temper and
passion. In the best it is oftentimes caprice, in the worst it is every vice, folly and passion to which
human nature can be liable.'"
Horatio Alling, for Respondent:
The granting of the writ of mandate is dependent upon the exercise of a wise judicial discretion and is
not a matter of absolute right. (19 Am. & Eng. Ency. 751; 26 Cyc. 143; Merrill on Mandamus, sec. 62;
People v. Little Rock, 215 Ill. 488; People v. Board of [***16] Supervisors Adams Co., 185 Ill. 288;
People v. Ketchum, 72 Ill. 212; High, Ex. Leg. Rem., 3d ed., sec. 6.)
In exercising such discretion the court will consider all the circumstances, reviewing the whole case,
with due regard to the consequences of its action. (Merrill on Mandamus, sec. 63.)
As to consideration, affecting the exercise of the court's discretion, see 19 Am. & Eng. Ency. 753.
The interest of the general public may be considered. (19 Am. & Eng. Ency. 754, note 3; 2 Spelling,
Ex. Relief, sec. 1372.)
The granting of a writ of mandamus to enforce merely private rights is a matter of sound legal
discretion, and, notwithstanding the clear legal right and the absence of a legal remedy, it may be
refused if circumstances make it unwise or inexpedient to grant it. (Effingham, Maynard & Co. v.
Hamilton, 68 Miss. 523; State ex rel. Phelan v. Board of Education of Fon du Lac, 24 Wis. 683.)
The writ of mandate will not issue to compel the performance of an act which will work a public or
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private mischief, or to compel a compliance with the strict letter of a law in disregard of its spirit and
in aid of a palpable fraud. (People ex rel. Wood v. Board of Assessors, [***17] 137 N. Y. 201.)
The granting of the writ of mandate, even when the right thereto is clear, lies in the sound discretion
of the court; and where the court can see, upon a review of the whole case, that public interest and
business will be thereby prejudiced and hindered, or the rights of third parties injuriously affected,
without reasonable expectation of compensation benefits, the writ will be denied. (Harris v. State, 96
Tenn. 496, 516.)
The writ of mandate is not wholly a writ of right, but lies to a considerable extent within the sound
discretion of the court where the application is made, and should not issue to compel a technical
compliance with the letter of the law in violation of its plain intent and spirit, nor to wrest a statute
from its true purpose. (Wiedwald v. Dodson, 95 Cal. 450; State v. U. S. Express Co., 95 Minn. 442.)
Judges: TALBOT, J. SWEENEY, J., concurring. NORCROSS , C. J., dissenting.
Opinion by: TALBOT.
Opinion
[**108] [*553] By the Court, TALBOT, J. (after stating the facts as above):
This proceeding is based upon a petition for a writ of mandate, asking that the lieutenant-governor,
who, under a provision in the constitution, has been the acting governor [***18] since the death of
Governor Sparks, be required to accept, on behalf of the state, 145 bonds of the State of North
Carolina, which, with their unpaid interest coupons, are of the par value of $ 401,170, under an act of
our legislature approved February 26, 1901, entitled "An act to require the acceptance and collection
of grants, devises, bequests, donations and assignments to the State of Nevada," which reads as
follows:
"SECTION 1. That whenever any grant, devise, bequest, donation or gift or assignment of money,
bonds or choses in action or of any property, real or personal, shall be made to this state, the
governor is hereby directed to receive and accept the same, so that the right and title to the same
shall pass to the state; and all such bonds, notes or choses in action or the proceeds thereof when
collected, and all other property or thing of value, so received by the state as aforesaid, shall be
reported by the governor to the legislature, to the end that the same may be covered into the public
treasury, or appropriated to the state university or to the public schools, or to state charities as may
hereafter be directed by law.
"SEC. 2. That whenever it shall be necessary [***19] to protect or assert the right or title of the
state to any property so received or derived as aforesaid, or to collect or reduce into possession any
bond, note, bill or chose in action, the attorney-general is directed to take the necessary and proper
proceedings, and to bring suit in the name of the state in any court of competent jurisdiction, state or
federal, and to prosecute all such suits, and is authorized to employ counsel to be associated with him
in such suits and actions who, with him, shall fully represent [*554] the state and shall be entitled
to reasonable compensation out of the recoveries or collections in such suits and actions." (Stats.
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1901, c. 19.)
As reasons for respondent's refusal to accept the bonds, and against the issuance of a writ requiring
their acceptance, numerous objections are made, as detailed in the foregoing statement of facts and
issues. Among the more important of these, and illustrative of others, are the ones that the bonds
were issued as the result of a conspiracy to defraud the State of North Carolina; that they were
declared invalid by an act of the legislature and by a constitutional amendment in that state; that the
bonds of the par [***20] value of $ 11,262,000, in addition to the ones of the par value of $
401,170, are owned by individuals who are without remedy for the enforcement of their payment,
because under the eleventh amendment to the federal constitution the persons holding them cannot
maintain a suit against the State of North Carolina; that the bonds are barred by the statute of
limitations of that state; that by reason of the declaration of invalidity expressed by the legislature in
the constitutional amendment, the holders of the bonds are without remedy to enforce their
collection, and that they are therefore without any real value, and that the acceptance of them would
impose upon the state expensive litigation for their enforcement and would tend to disturb the
friendly relations existing between the people of North Carolina and this state. The most of these
objections and others raised, such as those which relate to the validity of the bonds, are grave judicial
questions which might be determined in an action between the State of Nevada and the State of
North Carolina, in which the latter would be entitled to appear and defend. These, and other serious
questions, judicial in their nature, are for the [***21] courts, and not properly for the executive to
determine. Whether North Carolina, acting as her own judge, and denying the holders of the bonds
the right to enforce them, even in her own courts, can make such a constitutional and legislative
repudiation of them, in [*555] the nature of a declaration of a party in his own favor, as will
prevent their enforcement in a disinterested tribunal such as the Supreme Court of the United States,
and whether the statute of limitations would run after that state had abrogated any provision in its
laws [**109] by which the holders of the bonds might bring suit and recover judgment, are not
questions essential to be determined in this proceeding. The statute itself does not provide that the
bonds must be of any value, but directs the governor to accept them, without specifying that he may
decline to receive them if he believes they are without value or cannot be collected, or that the
acceptance of them will not be for the best interests of the state. Courts may decline to consider
matters which are trivial and regarding which there is no real controversy. Ordinarily the district court
and the supreme court have jurisdiction where the amount [***22] is over $ 300, but the
constitution confers upon this court the right to issue writs of mandamus without mentioning any
amount as being necessary to give the court jurisdiction to grant the writ. State and federal statutes
generally fix the jurisdiction of courts according to the demand or amount in controversy, which in
this proceeding, incidental to a suit for recovery on the bonds, may be considered their face value,
the same as in a suit directly upon them. Neither this court nor any officer is greater than the organic
act under which the state and the court and officers are created. We ought not to usurp the rights of
the people by amending into the constitution nor the powers of the legislature by judicially legislating
into the statute a requirement that the value of the bonds must be proven before a suit can be
maintained to recover upon them, when neither the constitution nor the act requires such value to be
shown before this court can issue the writ of mandate. It is not necessary or usual in suing upon
bonds or other negotiable instruments to allege or prove that they are of value. If it be conceded that
unless they are of some value the lieutenant and acting governor [***23] is not required to accept
them, being regular upon their [*556] face and issued under a statute of North Carolina, they are
presumed to be of par value; but whether of any value the holder, the same as the holder of other
obligations or claims, is entitled to maintain an action to determine whether they are legally due, and
if they are to judgment, even though the judgment may be valueless by reason of the inability of the
defendant to pay.
No proof was submitted on behalf of respondent to support the allegation in his answer that the
bonds are of no value. The statement of counsel for petitioner that the bonds were of the market
value of 25 per cent of the face value, which is not directly denied, does not indicate that they may
not be of greater value, or par value, when owned by the state, which, differently from individuals,
can maintain an action to recover upon them. The value of the bonds to the state would be dependent
largely upon the result of a suit. If litigants had to allege and prove the value of bonds and negotiable
instruments in advance of maintaining a suit upon them, the burdens of litigation, already too great,
might be doubled or greatly increased. The determination [***24] of whether the state shall accept
the bonds may be safely left where it belongs and to the people's representatives in the senate and
assembly; and, if the state does not accept them, the question of whether the State of North Carolina
is legally liable to pay them is one which may be properly submitted to the Supreme Court of the
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United States, where it belongs. The prevention of the determination of these matters by the
legislature and by the Supreme Court of the United States is not within the executive powers which
the lieutenant and acting governor is authorized to exercise, nor is it the duty of this court to deprive
the legislature of its right to determine whether the bonds shall be accepted, nor to prevent the
questions relating to their validity, the decision of which pertains to judicial powers, from being
submitted to the Supreme Court of the United States if the legislature desires that they be accepted.
No reason is apparent [*557] why this court should, in this special and preliminary proceeding,
adjudicate and uphold the statutory and constitutional acts of North Carolina in repudiating the
bonds, and denying to individual holders thereof the right to have the [***25] question of whether
she is liable for the payment of them determined in her courts, as an excuse for nullifying the act of
our own legislature. If the determination of the questions relating to the liability upon the bonds were
necessary in this proceeding, as well as in a future action against North Carolina to collect them, it
might appear that the principal objections made against their enforcement have already been
considered adversely to the contentions of respondent by the Supreme Court of the United States, in
cases other than the one in which South Dakota recovered on donated bonds of North Carolina; and
that in order to sustain the claim made on behalf of the lieutenant and acting governor that a
judgment could not be recovered upon the bonds, we would have to undertake to reverse the
opinions of the Supreme Courts of the United States and of North Carolina.
In consonance with the general principle established by numerous decisions, it was held in Kneeland
v. Lawrence Bros. & Co., 140 U.S. 209, 11 S. Ct. 786, 35 L. Ed. 492, that coupon bonds payable to
bearer passed by delivery, and a bona fide purchaser of them before maturity takes them free
from [***26] any equities that might have been set up by the original holders, and that the burden
of proof is on the one who assails the bona fides of such purchase. It would be incumbent upon the
defendant in a suit upon the bonds to plead and show that the action was barred by the statute of
limitations, or this objection might be waived.
In Wilcox v. Williams, 5 Nev. 206, it was said: "No party is compelled to plead the statute of
limitations; no court can infer from lapse of time apparent [**110] on the face of pleadings, that the
statute has run."
In Moore v. Smith, 29 S.C. 254, 7 S.E. 485, the court [*558] stated: "Where a just demand is
presented, and the statute of limitations is interposed, that is new matter, and must be established by
him who relies upon it."
In consonance with numerous decisions in other jurisdictions, HN1 the Supreme Court of North
Carolina has often held that the statute of limitations is an affirmative defense, and must be pleaded
and established by the party who relies upon it. ( Hooker v. Worthington, 134 N.C. 283, 46 S.E. 726;
Bond v. Wilson, 129 N.C. 387, 40 S.E. 182; [***27] Gupton v. Hawkins, 126 N.C. 81, 35 S.E. 229;
Parker v. Harden, 121 N.C. 57, 28 S.E. 20; Wood v. Barber, 90 N.C. 76; Hobbs v. Barefoot, 104 N.C.
224, 10 S.E. 170; Nunnery v. Averitt, 111 N.C. 394, 16 S.E. 683; Moore v. Garner, 101 N.C. 374, 7
S.E. 732; Graham v. O'Bryan, 120 N.C. 463, 27 S.E. 122; White v. Century Gold M. Co., 28 Utah 331,
78 P. 868; Borland v. Haven (C. C.) 13 Sawy. 551, 37 F. 394; Pierce v. S. P. R. R. Co., 120 Cal. 156,
52 P. 874, 52 P. 302, 40 L. R. A. 350; Cann v. Cann, 40 W. Va. 138, 20 S.E. 910; Vail v. Halton, 14
Ind. 344; Lewis v. Mason, 84 Va. 731, 10 S.E. 529; Green v. Dodge, 79 Vt. 73, 64 A. 499; Hunter v.
Hunter, 63 S.C. 78, 41 S.E. 33, 90 Am. St. Rep. 663; Barnett v. Houston, 18 Tex. Civ. App. 134, 44
S.W. 689; McDowell v. Potter, 8 Pa. 189, 49 Am. Dec 503; Kilbourne v. Sullivan Co., 137 N.Y. 170, 33
N.E. 159; [***28] Moffet v. Farwell, 222 Ill. 543, 78 N.E. 925.)
It seems also to be the rule in North Carolina, in the Supreme Court of the United States, and
everywhere, HN2 that the time within which actions may be brought may be shortened if a
reasonable time thereafter is allowed for the institution of suit, but that a litigant or claimant cannot
be deprived entirely of his right to bring an action by an act of the state or legislature, as this would
amount to a denial of justice. ( Wheeler v. Jackson, 137 U.S. 245, 11 S. Ct. 76, 34 L. Ed. 659,
affirming 105 N.Y. 681, 13 N.E. 931; Saranac v. N. Y. Comptroller, 177 U.S. 318, 20 S. Ct. 642, 44 L.
Ed. 786; Mitchell v. Clark, 110 U.S. 633, 4 S. Ct. 170, 312, 28 L. Ed. 279; Vance v. Vance, 108 U.S.
514, 2 S. Ct. 854, 27 L. Ed. 808; Sohn [*559] v. Waterson, 84 U.S. 596, 17 Wall. 596, 21 L. Ed.
737; Terry v. Anderson, 95 U.S. 628, 24 L. Ed. 365; Culbreth v. Downing, 121 N.C. 205, 28 S.E. 294,
61 Am. St. Rep. 661; Nichols v. Norfolk R. R. Co., 120 N.C. 495, 26 S.E. 643; [***29] Wilcox v.
Williams, 5 Nev. 206; People v. Turner, 117 N.Y. 227, 22 N.E. 1022, 15 Am. St. Rep. 498; Fiske v.
Briggs, 6 R.I. 557; Rodebaugh v. Phila. Traction Co., 190 Pa. 358, 42 A. 953; King v. Belcher, 30 S.C.
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381, 9 S.E. 359; Boon v. Chamberlain, 82 Tex. 480, 18 S.W. 655; Smith v. Packard, 12 Wis. 371;
Willard v. Harvey, 24 N.H. 344; Guiterman v. Wishon, 21 Mont. 458, 54 P. 566; Cranor v. School
Dist., 151 Mo. 119, 52 S.W. 232; Garrett v. Beaumont, 24 Miss. 377; Billings v. Hall, 7 Cal. 1; Hart v.
Bostwick, 14 Fla. 162; Central Bank v. Solomon, 20 Ga. 408; Edelstein v. Carlile, 33 Colo. 54, 78 P.
680; Hill v. Gregory, 64 Ark. 317, 42 S.W. 408; Bradley v. Lightcap, 201 Ill. 511, 66 N.E. 546;
Macnichol v. Spence, 83 Me. 87, 21 A. 748; Wooster v. Bateman, 126 Iowa 552, 102 N.W. 521;
Baumeister v. Silver, 98 Md. 418, 56 A. 825; [***30] Krone v. Krone, 37 Mich. 308; Russell v.
Lumber Co., 45 Minn. 376, 48 N.W. 3; Loring v. Alline, 9 Cush. 68.)
HN3 Where it is provided that the payment of bonds is to be made in a particular way or out of a
particular fund, the statute of limitations does not begin to run until the fund has been provided. (
Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L. Ed. 766; State v. Lincoln County, 23 Nev.
262, 45 P. 982; Freehill v. Chamberlain, 65 Cal. 603, 4 P. 646; Robertson v. Blaine Co., 90 F. 63, 32
C. C. A. 512, 61 U.S. App. 242, 47 L. R. A. 459.)
That pursuant to an act of the legislature the courts will compel the levying of a tax for the purpose of
paying a judgment recovered upon bonds has often been held. ( Supervisors v. U. S., 71 U.S. 435, 4
Wall. 435, 18 L. Ed. 419; City of Galena v. Amy, 72 U.S. 705, 18 L. Ed. 560; City of Davenport v. U.
S., 76 U.S. 409, 19 L. Ed. 704; County of Greene v. Daniel, 102 U.S. 187, 26 L. Ed. 99; Lowell v.
Boston, 111 Mass. 454, 15 Am. Rep. 39; [***31] U. S. v. New Orleans, 98 U.S. 381, 25 L. Ed. 225;
State v. Clay, 46 Mo. 231; [*560] Shinbone v. Randolph, 56 Ala. 183; State v. Milwaukee, 20 Wis.
87; Stevenson v. Summit, 35 Iowa 462; Com. v. Com. of Alleg. Co., 37 Pa. 277; Cass Co. v.
Johnston, 95 U.S. 360, 24 L. Ed. 416; Pegram v. County Com., 64 N.C. 557; Dillon on Municipal
Bonds, 58; Jones on R. R. Securities, sec. 300.)
The objection that the acceptance of the bonds directed by the statute would tend to disturb the
friendly and harmonious relations existing between the two states, and other questions relating to the
wisdom or propriety of the statute, are for the legislature, and not for the executive or the courts to
determine. It may be conceded that the courts could not, under any statute passed by the legislature,
compel the governor to perform acts which would be in conflict with the powers conferred upon him
by the constitution, and that he is absolute in all the prerogatives conferred upon him by that
instrument. Neither the courts nor the legislature [***32] can deprive him of any authority conferred
upon him by the constitution. The act in question is clear and positive in its direction that the bonds
be accepted. It contains no qualification or condition that he may refuse to receive them for any
reason. By its terms no discretion or judgment is vested in him. It does not relate to or infringe any
of his constitutional prerogatives. The statute merely directs him to perform a ministerial act, and the
legislature could have directed equally as well that bonds as a gift to the state should be [**111]
accepted by the state treasurer or other officer or person. The constitution defines the powers of the
governor, and provides clearly for the enactment of laws and the jurisdiction of courts.
If it be admitted that certain powers are vested in the governor by the constitution, which neither the
legislature nor the courts can control, this act in no way relates to such powers, and is not governed
or limited by any provision of the constitution, unless it be section 7, article 5, which states that "he
shall see that the laws are faithfully executed," and the one giving him the right to recommend to the
legislature that this or any other [***33] act [*561] be repealed. HN4 When an act, not in
conflict with the constitution, passes both houses of the legislature, and is approved by the governor
or passed over his veto, it is binding, and no person is above a law so enacted. As he cannot prevent
its passage over his veto, he is powerless to set aside a statute after it has become the law. Section
4, article 6, provides that this "court shall also have power to issue writs of mandamus." HN5
Section 3542 of the Compiled Laws, passed by the legislature under its constitutional powers, directs
that the writ may be issued to any person "to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station." Although the opinions of the
lieutenant and acting governor, coming from the highest executive officer of the state, are entitled to
great respect, there is nothing under our system of government which places him upon a pedestal
above the laws enacted in accordance with the provisions of the constitution by the people's
representatives in the legislature assembled. He, similarly with other public officers, is the chosen
servant of the people. The members of this court, as well [***34] as the executive, are under an
oath provided by the constitution itself to support its provisions. The one that "he shall see that the
laws are faithfully executed" makes it even more incumbent upon him than upon ordinary citizens to
yield obedience to the statute. The fact that with the best of motives, and on the highest of moral
grounds, he may disagree with the will of the legislature as expressed in the statute cannot justify his
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failure or refusal to perform an act clearly required by its terms.
Notwithstanding that we may agree with his conclusions as to the policy or expediency of the statute,
and as citizens or legislators would favor its amendment, we, as well as the lieutenant and acting
governor, are bound to observe the constitution and the statutes, including the provisions for the
issuance of writs of mandamus when any person refuses to perform an act "which the law especially
enjoins as a duty resulting from his office or station." He may recommend the passage of laws and
[*562] approve or veto bills after they have been passed by the senate and assembly; he may
recommend the repeal of statutes which have become the law with or without the governor's
approval; [***35] but after they become the law, with or without his approval, he is as powerless to
set them aside as other officers or individuals, and is, as we have seen, especially enjoined by the
constitution and more obligated than ordinary citizens to have them enforced. In the exercise of the
powers conferred upon him by the constitution which carry or imply any discretion, such as those
relating to the approval or vetoing of bills or certain appointments of persons to office, his will is
absolute and his action beyond the control of the courts. The constitution on which our government
stands, and without which it would fall, nowhere exempts the governor from being required, the same
as other officers, to perform ministerial acts such as are required by this statute, which in no way
conflict with or pertain to his constitutional prerogatives. If the chief executive may, upon the ground
that in his judgment it is not for the best interests of the state, set aside this statute, he may also for
the same reason, and contrary to the constitutional requirement that he enforce the laws, ignore
other statutes; and other officers and citizens, not specially enjoined by the constitution to enforce
the [***36] laws, would have quite as much right as he to ignore statutes which they did not deem
wise or expedient.
In Ex Parte Boyce, 27 Nev. 299, 65 L. R. A. 47, 75 P. 1, adopting the language of Justice Harlan and
the Supreme Court of the United States in the Kansas case, we said: "So, also, if it be said that a
statute like the one before us is mischievous in its tendencies, the answer is that the responsibility
therefor rests upon the legislature, not upon the courts. No evils arising from such legislation could be
more far-reaching than those that might come to our system of government if the judiciary,
abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation,
and, upon grounds merely of justice or reason and wisdom, annul statutes [*563] that had
received the sanction of the people's representatives. We are reminded by counsel that it is the
solemn duty of the courts, in cases before them, to regard the constitutional rights of the citizen
against merely arbitrary power. This is unquestionably true. But it is equally true--indeed, the public
interests imperatively demand--that legislative enactments be recognized and enforced [***37] by
the courts, as embodying the will of the people, unless they are plainly and palpably, and beyond all
question, in violation of the fundamental law of the constitution. In Wallace v. City of Reno, 27 Nev.
71, 63 L. R. A. 337, 103 Am. St. Rep. 747, 73 P. 528, we held that the people, and through them the
legislature, had supreme power in all matters of government, [**112] where not restricted by
constitutional limitations." These principles are applicable to the executive, and he is as void of power
as the courts to set aside statutes because he may deem them unwise or inexpedient.
It may not tend to promote the best feeling for one state or neighbor or individual to acquire by gift
or purchase, or otherwise, an indebtedness against another for the purpose of enforcing its collection;
but to do so is not prohibited by any provision of the constitution. Individuals are daily acquiring, by
gift, descent or purchase, indebtedness against others and bringing suits for the enforcement of the
demands, and the courts provided by the constitution are open for the enforcement of these
demands. There is nothing in the constitution which in the remotest degree inhibits [***38] one
state from enforcing against another any demand, whether acquired by gift or otherwise, and the
state is as free as an individual to accept evidences of indebtedness and to collect the amount due.
The claim that the bonds may not be accepted because the friendly relations existing between the two
states would be destroyed is at variance with the decision of the Supreme Court of the United States
in the case of South Dakota v. North Carolina. In that case repudiated bonds issued by North Carolina
to aid railroads in the [*564] years 1847, 1855, and 1866 were donated to South Dakota under a
statute similar to ours. Suit was brought upon them, and judgment obtained by South Dakota against
North Carolina in the Supreme Court of the United States in the year 1903. (192 U.S. 286, 24 S. Ct.
269, 48 L. Ed. 448.) Contrary to the contention made here, the supreme court held that South
Dakota could recover notwithstanding the bonds had been donated to that state by holders who were
seeking to collect other similar bonds, and that these holders were not necessary parties to the suit.
Whether the State of North Carolina is legally liable for the payment of these bonds [***39] is not a
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question which can be properly determined in this proceeding. The fact that their market value is far
in excess of the amount necessary to give this court jurisdiction, that grave doubt exists as to
whether they may be enforced against North Carolina, and that the legislature has provided for their
acceptance, is sufficient for the purposes of this action. If the State of North Carolina does not legally
owe them, that will be a defense to be established in a suit if one is brought by this state against
North Carolina. If the State of North Carolina legally owes the amount due upon them, there is
nothing in the constitution which prevents this state from recovering if it accepts the bonds. If, on the
other hand, the State of North Carolina does not legally owe the amount of the bonds, she would not
have to pay them at the end of the suit. It can hardly be said that in passing our statute in question
the legislature did not understand that it was for the purpose of accepting state bonds and enforcing
their collection by litigation when the language of the act so plainly indicates that it was drawn for this
purpose. Unless by future action the legislature deems, as a matter of [***40] policy or propriety,
that it is better to amend the act or provide that the bonds shall not be accepted or enforced, it is the
duty of the chief executive under the statute to accept them for the state. In one view the court is in
the same position as the executive. It is the duty of the governor to enforce the law as he finds it,
[*565] and for the court to declare the law as it finds it, regardless of whether as citizens or
legislators they would favor the repeal of the statute.
The cases are not uniform as to when or the circumstances under which mandamus will issue to
control the action of the governor. That the writ will issue to compel the chief executive to perform a
ministerial act is in accordance with the best authorities, and has been the law of this state for more
than forty years, and since the issuance of the mandate of this court under a decision written by Chief
Justice Beatty directing Governor Blasdel to sign and issue a patent for land. ( State ex rel. Wall v.
Blasdel, 4 Nev. 241.) It was said in the opinion that "if the law as passed is valid it must be enforced."
There was further recognition of the right to have the writ of mandate [***41] issue against the
chief executive, when the conditions warrant, in the case of Lieutenant-Governor Laughton v.
Governor Adams, 19 Nev. 370, 12 P. 488.
In the case of Waterman we discharged the petitioner from arrest under an executive order issued by
the governor of this state upon the requisition of the governor of Iowa because the indictment did not
state facts constituting a crime. (29 Nev. 288, 89 P. 291, 11 L. R. A. (N. S.) 424.)
In the case of Gray v. State, 72 Ind. 567, the court held that the writ of mandate will lie against the
governor to enforce the performance of a ministerial duty not resting in his discretion, and that a
ministerial act is one which a person performs under a given state of facts and in a prescribed manner
in obedience to legal authority, without regard to his own judgment upon the propriety of the act
being done.
In Middleton v. Low, 30 Cal. 596, it was held that when a ministerial duty is specially devolved upon
the governor by law, which the legislature might have conferred upon any other state officer, the
governor may be compelled to perform the same.
In Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, [***42] a writ was issued commanding the
governor to cause to [*566] be authenticated as a statute a bill in his possession which had passed
both houses of the legislature.
In State v. Salmon P. Chase, 5 Ohio St. 528, it was held that although the governor, in the exercise of
the supreme executive power of the state, may, from the nature of his authority, [**113] have a
discretion which cannot be controlled by the courts, yet in regard to a ministerial act which might
have devolved upon any other officer of the state, and affecting any specific private right, he may be
made amenable to the compulsory mandate of the court by mandamus.
In Chumasero v. Potts, 2 Mont. 242, a writ was issued commanding the governor, with other officers,
to canvass the vote.
In Magruder v. Swann, 25 Md. 173, it was held that the governor, like other officers, in the discharge
of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor
without acknowledging an authority higher than the law.
In State v. Martin, Governor, 38 Kan. 641, 17 P. 162, it was held that where purely [***43]
ministerial duties are by statute imposed upon the governor, and these duties are only such as might
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be devolved upon any other officer or agent, their performance may be compelled by mandamus or
injunction. The court said: "In the case of Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60,
Chief Justice Marshall uses the following language: "The very essence of civil liberty consists in the
right of every individual to claim the protection of the laws, whenever he receives an injury. One of
the first duties of government is to afford that protection.' And further on in the same case, page 166
(5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60), after stating that the courts cannot control executive
discretion, the great chief justice uses the following language: 'But when the legislature proceeds to
impose on that officer (the secretary of state of the United States) other duties; when he is directed
peremptorily to perform certain acts; when the rights of the individuals are dependent on the
performance of [*567] those acts, he is, so far, the officer of the law; is amenable to the laws for
his conduct, and, cannot at his discretion sport away [***44] the vested rights of others.' In the
case of Tenn. R. Co. v. Moore, 36 Ala. 371, the following language is used: 'All this is but the result of
the just and wholesome principle that no public functionary, whatever his official rank, is above the
law, or will be permitted to violate its express command with impunity. While, therefore, it is true
that, in regard to many of the duties which belong to his office the governor has, from the very
nature of the authority, a discretion which the courts cannot control, yet, in reference to mere
ministerial duties imposed upon him by statute, which might have been devolved upon another officer
if the legislature had seen fit, and on the performance of which some specific private right depends,
he may be made amenable to the compulsory process of the proper court by mandamus.' * * * Of
course we should always presume that the governor intends to do his duty, but he may be mistaken
as to the law, or he may not be sufficiently advised as to the facts upon which the applicant for relief
founds his right thereto, and there is no way prescribed by law by which issues can be made up and
tried before the governor as issues are [***45] made up and tried before the courts. The courts are
created for the express purpose of trying controversies, while the other departments and ministerial
officers are not. It is also claimed that if the courts may control the ministerial acts of the governor,
and may also determine which are ministerial acts and which are not, then that the courts may
determine everything, and obtain complete control over the entire executive department, including
the governor. It must be remembered, however, that all controversies must be determined
somewhere, and that the courts are the only tribunals created by the constitution and the laws for the
special purpose of construing the constitution and the laws, and of determining controversies between
parties, and the power to determine whether a given power is a truly ministerial power, or not, and
whether an [*568] applicant for relief in any particular case has a right to such relief under the law
creating such power, or not, comes particularly within the province of the courts. And a determination
in such a case is purely judicial, and is one of the things for which courts were created, and they
could not refuse their aid in such cases without [***46] so far wholly abandoning their duties and
abdicating their jurisdiction."
The United States Supreme Court, speaking through Chief Justice Marshall , in the case of Osborn v.
United States Bank, 22 U.S. 738, 6 L. Ed. 204, said: "Judicial power, as contradistinguished from the
power of the laws, has no existence. Courts are the mere instruments of the law, and can will
nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be
exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the
court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the
will of the law."
In State v. Cummings, 36 Mo. 263, 278, it is said: "It is not for the judiciary to inquire whether laws
violate the general principles of liberty or natural justice, or whether they are wise or expedient or
not. They can only declare whether they are repugnant to constitutional provisions and limitations. It
would be a violation of well-established [***47] and safe principles for courts to resort to any other
test. There is no higher law by which we can be governed. An attempt by judicial construction to
obstruct a law, or a failure to enforce it, would be monstrous usurpation. We cannot make or repeal a
law; we are not intrusted with any such power. If it is wrong, unjust, or oppressive, an appeal must
be made to the people in their political capacity at the polls to apply [**114] the remedy. We will
not attempt to exercise judicial legislation. We can scarcely conceive of anything that would be a
compensation for introducing into [*569] our jurisprudence such a pernicious doctrine. The most
odious and dangerous of all laws would be those depending upon the discretion of judges."
The petitioner has filed a special reply brief, citing extracts from numerous authorities holding that
the courts have discretion as to the issuing of the writ of mandate in aid of private rights, but no such
discretion when it is invoked in matters of public right. Among these authorities are: Tapping on
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Mandamus, 54, 56, 287, 288; 2 Dillon on Municipal Corporations, sec. 695; New Haven Co. v. State,
44 Conn. 376; State v. Doyle, 40 Wis. 220; [***48] Spelling on Injunctions and Extraordinary
Remedies, sec. 22; Savannah Canal Co. v. Shuman, 91 Ga. 400, 17 S.E. 937, 44 Am. St. Rep. 43; 19
Am. & Eng. Ency. Law, 753. If the court has any discretion in a case like this one, it ought not to
exercise it by denying the writ, which would result in a judicial repeal, the usurpation of the powers of
the legislature, and a dangerous precedent. If the plain terms of this act may be thus set aside, no
statute would be certain, no litigant or counsel would be sure of the law until finally announced
according to the varying moods of the court, and no person would be secure in his rights. In Russia,
the czar at pleasure sets aside the acts of the duma, passed by the people's delegates. The highest
officers in this government, as well as kings and emperors in the leading constitutional monarchies of
the world, are without power to set aside the laws of the country. The Young Turks deposed a sultan
for his failure to observe the requirements of the constitution. For the purpose of giving soundness
and stability to our laws, the people have wisely provided in the organic act of the state that bills,
whether for proposed statutes [***49] or repeals, must pass both branches of the legislature, and
have given the governor the power to veto or approve before they become effective. If this and other
statutes, when their language and meaning are clear, could be set aside or ignored at the discretion
or changing will of succeeding governors or courts, the laws might become nearly as uncertain and
[*570] unstable as the clouds that float above our mountain peaks. It cannot be implied that the
governor has power to set aside the laws when he is specially enjoined by the constitution to enforce
them.
For us to hold contrary to the plain meaning, that the constitutional provision that the governor shall
faithfully execute the laws allows him to set them aside at will, would be a misconception, sarcasm,
and travesty upon the organic act upon which the state stands.
If the members of the legislature agree with the views of the lieutenant and acting governor, they,
and not he nor the courts, have the power to repeal or amend the law for the reasons he advances.
We cannot assume that the new executive, who will take office on the first of the year, will fail to
follow the law as construed by the court, or refuse to obey [***50] the statute if it is not repealed or
amended, or if the requirement of the act remain unabrogated.
The writ will issue as demanded in the petition; but in order to give the legislature, which is about to
convene, and which is the only branch of our government having power to change a statute, an
opportunity to consider the objections which have been made to the acceptance of the bonds, and to
repeal or amend the act if it desires, the service and execution of the order will be stayed until the
close of the sixty-day session of that body and the further order of the court.
Concur by: SWEENEY
Concur
SWEENEY, J., concurring:
I concur in the judgment of Justice TALBOT. I served in the legislature of Nevada in 1901 which
enacted this measure, as a member of the assembly from Ormsby County. At the request of the then
governor of Nevada, Governor R. Sadler, I introduced the bill in question "by request," which the
legislative records disclose, authorizing the state to accept and collect grants, devises, bequests,
donations, and assignments. The bill passed both houses of the legislature unanimously, and was
signed by the governor. This statute is the only one of [*571] its nature in our statute [***51]
books which places this state in a position to officially accept gifts, grants, devises, bequests,
donations, and assignments. Under this act, and by virtue of its terms, the officer designated in this
act to officially receive, so that the title might become vested in the state, accepted, and the state
received, from Clarence H. Mackay the gift of $ 200,000 and other monetary donations for our state
university.
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These North Carolina bonds, involved in the present case, are the second gift offered to the state
since the passage of this act about ten years ago. At the time of the passage of this act before the
legislature, no question of policy or expediency as to the acceptance of state bonds, such as are
involved in the present case, was debated or considered, and knowing personally that if such a
proposal of bonds was made as is involved in the present proposed gift that I would not have voted
as a legislator for this bill, unless amended so as to avoid such a necessity of enforcing the collection
of bonds of the character offered in the present case, by reason of conditions existing at the time of
their issuance and the alleged questionable original indebtedness they were issued [***52] to
redeem, I would be pleased to see the incoming legislature amend the law to cover this situation so
as to avoid this necessity.
As a judge of this tribunal, however, the law, as enacted by the legislature, until amended or repealed
by the legislative department, [**115] must take its course, any personal sentiment to the contrary
notwithstanding. Under the constitution of the United States, which is the supreme law of the land,
and the constitution of Nevada, which we are obligated to obey under oath, we must order enforced
any valid law irrespective of sentiment, and against any executive officer enjoined by law to a
performance of a ministerial duty if he fails to execute the law. In this great country of ours, as it
should be, under a constitution which was ordained to make all men equal under the law, no man is
above the law whether he be the President of the United States or its lowliest citizen-- [*572]
millionaire or pauper; and while in the British and other governments that have not as yet advanced
to a republic like ours the people are satisfied with the doctrine that prevails that the king or ruling
head is above the law and can do no wrong, yet in this country [***53] every American citizen is
legally equal before the law, and it is the plain duty of all officers to obey the law which they by oath
promise to do, and a writ of mandate should issue to enforce such performance.
I especially desire to emphasize my approval and concurrence in the opinion of Justice TALBOT to the
effect that mandamus lies to enforce the nonperformance of a legal duty ministerially enjoined by law
on the acting governor or any other executive officer, in view of the position taken so decidedly by the
attorneys for the acting governor that mandamus will not lie against a chief executive of the state,
and to check as far as lies in my power the constant and widespread attempt throughout the land to
usurp the powers, which the framers of our constitution especially delegated and vested separately in
the three coordinate branches of our government.
The present case typifies to a nicety the position I desire impressed, and the evil I desire checked, in
the tendency of one department of our government to usurp the powers of the other, and which are
expressly delegated by the framers of our government to the three coordinate branches, and
discloses how courts and judges [***54] and executive officers, swayed consciously or unconsciously
by sentiment, may usurp or encroach on the powers vested in other departments, and violate the
spirit of our constitution, and which, if unchecked, will ultimately nullify the grandest scheme of
government ever proposed by man.
The act in question was passed by the legislature, which has the sole power, subject to the veto
power of the governor, to pass the measure. The act in plain terms states that the state shall accept
state bonds, devises, bequests, and assignments. The question of [*573] whether or not the
legislature intended to place the state in its present position of enforcing the collection of state bonds
of the character given them was not considered or debated by the legislature; but the fact remains
that the act states in plain, unambiguous, mandatory terms "that whenever any grant, devise,
bequest, donation or gift or assignment of money, bonds or choses in action or of any property, real
or personal, shall be made to this state, the governor is hereby directed to receive and accept the
same, so that the right and title to the same shall pass to the state. * * *"
While personally we might wish that the [***55] act reposed a discretion in the governor for the
purpose of refusing to accept the bonds proffered in the present case, yet, as judges interpreting the
law, we have no alternative legally than to declare the law as we find it. Personally, I believe the state
and its business should be conducted on the same business plane as that of any private citizen, and
in so far as the acceptance of gifts is concerned, the state ought to be in the same position to accept
or decline a gift, when the state's prestige or standing might be injured in so accepting, and where it
is necessary to sue to enforce a voluntary gift. It should also be in a position to consider any strings
attached to the proposed gift, from whom, and the character and nature of the gift; but these are
matters to be remedied solely by the legislative department, and not within the province of the
executive or judicial departments.
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As to the discretion reposed in this court to refuse to issue the writ of mandate, because of the
alleged want of value in the bonds, and on the principle that courts will not deal with frivolous or
valueless things, we are legally precluded from so acting, because the bonds on their face show a
value [***56] of over $ 401,000, and a market value of over $ 100,000, and the Supreme Court of
the United States and other courts, even including the Supreme Courts of North Carolina and Nevada,
have held that bonds of a sovereign state are presumed to be valid until otherwise shown, and the
statute of limitations [*574] does not run against the right of a sovereign state to sue another
sovereign state on bonds regularly passed by the legislature of a sovereign state, even though a
legislature might later try to repudiate them. This latter point was directly passed on in a case which
went to the United States Supreme Court, where the bonds in question were issued by Lincoln
County, Nevada, and attempted to be repudiated by Lincoln County because of the fraudulent or
extravagant nature of their incurrence. These Lincoln County bonds at the time of their issuance in
1882 only amounted to $ 180,000, and in the year 1900 the interest had accumulated to over $
420,000; that the bonded indebtedness of Lincoln County on these same bonds was in excess of $
600,000; yet the Supreme Court of the United States set aside the attempted repudiation of Lincoln
County, and held that the statute of limitations [***57] did not run against the holders of the bonds
because of the failure of Lincoln County to keep paid the accrued interest thereon. These Lincoln
County bonds, or the [**116] greater portion of them, were later bought by the railroad companies
running through Lincoln County for their own protection, and later compromised at about 50 cents on
the dollar with 4 per cent interest, but the fact remains that there was found to be no legal way
whereby Lincoln County could repudiate their payment.
The law in question is conceded by all to be constitutional, and it is the legal duty of the executive
officer, designated in the act, to perform the duty enjoined on him as ordained by the legislative
department, and it is our judicial duty to declare the law, and order its enforcement. If an executive
officer can set aside one valid law, he can set aside any other valid law and place himself above the
law.
To deny the writ we would have to usurp a power and right vested solely in the legislative
department, and take a contrary view to the United States Supreme Court and the Supreme Courts of
Nevada and North Carolina [*575] which have passed practically upon every point presented in
this [***58] case adversely to the respondent.
Under the judgment and power vested in this court by the constitution, the writ must issue in
pursuance to the law, but its execution will be temporarily stayed for a period of time to extend until
the close of the legislature, which is about to convene, so that an opportunity may be had to consider
whether the legislature is desirous of amending the law as above indicated to meet the objections
interposed to the acceptance of the proposed bonds or to repeal the act.
If the language remains unchanged, the writ, which will now issue, will become operative; in the
interim, for the reasons above assigned, the execution of the writ will be temporarily suspended, and
until the further order of this court.
Dissent by: NORCROSS
Dissent
NORCROSS , C. J., dissenting:
I am unable to concur in the conclusions reached by my learned associates in this proceeding. I think
the writ should be denied.
Conceding that the act of 1901 is mandatory, and that the governor has no discretion to refuse any
gifts, bequests, assignments, etc., motioned in the statute, nevertheless, I think it is clear from the
language of the statute that such duty is only imposed where the grant, [***59] devise, bequest,
donation, gift, or assignment is as to a thing of value. There is no allegation in the petition that the
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145 bonds of the State of North Carolina tendered to the governor for the benefit of the State of
Nevada are of any value whatever. The respondent has alleged in his answer, as a reason for his
refusal, that the said bonds are of no value whatever; that they were fraudulently issued, and have
been repudiated by the state issuing the same. These bonds, upon their face, would naturally arouse
some suspicion as to whether they were of value. They were all more than ten years past due when
offered. The face value of the bonds was $ 1,000 each, a total of $ 145,000, upon which unpaid
interest [*576] coupons were attached amounting to over $ 256,000. Upon most, if not all of these
bonds, no interest has been paid for over forty years. They were all issued in pursuance of acts of the
legislature of the State of North Carolina, passed during the years 1868 and 1869. In so far as the
State of North Carolina had power to do, it had repudiated these bonds. The answer of the
respondent in this case contains the following allegation: "That the said bonds referred to in [***60]
the petition of relator, and so authorized and issued as aforesaid, were in true legal effect declared
invalid and uncollectable by a constitutional amendment adopted by the people of the State of North
Carolina in 1880, which said constitutional amendment is in words and figures following, to wit: 'The
state shall never assume or pay or authorize the collection of any debt or obligation express or
implied, incurred in aid of insurrection or rebellion against the United States or any claim for the loss
or emancipation of any slave; nor shall the general assembly assume or pay or authorize the
collection of any tax to pay, either directly or indirectly, express or implied, any debt or bond incurred
or issued by the authority of the convention of the year 1868, nor any debt or bond incurred or issued
by the legislature of the year 1868 either at its special session of the year 1868 or at its regular
sessions of the years 1868-1869 and 1869-1870, except the bonds issued to fund the interest on the
old debt of the state, unless the proposing to pay the same shall have first been submitted to the
people and by them ratified by a vote of a majority of all the qualified voters of the state [***61] at
a regular election held for that purpose.'"
The bonds in question tendered to the State of Nevada are apparently in a very different situation
than the bonds given to the State of South Dakota under the provisions of a similar act to that
involved in this action, and which were sued upon by the State of South Dakota in the case of South
Dakota v. North Carolina, 192 U.S. 286, 24 S. Ct. 269, 48 L. Ed. 448. The bonds given to the State of
South Dakota were never directly repudiated [*577] by the State of North Carolina, and were
secured by stock of the North Carolina Railroad Company. The judgment in that case went no further
than to say that in the event said bonds were not paid by the first Monday of January, 1905, that an
order of sale be issued to the marshal of the supreme court directing him to sell at public auction all
the interest of the State of North Carolina in and to the said shares of the capital stock of the North
Carolina Railroad Company held as security for the payment of said bonds. Any further relief was left
for future consideration upon application to the court.
It does not appear that the bonds in question [**117] in this proceeding [***62] are secured by
any mortgage or other collateral security as in the North Dakota case. Even if we are to indulge in the
presumption that these bonds were issued in pursuance of law, and were untainted by any fraudulent
proceeding, nevertheless a grave question is presented as to the means of enforcing any judgment
which might possibly be obtained in the Supreme Court of the United States.
During the progress of the argument in this case one of the counsel for the petitioner stated that he
believed these bonds, in their present form, had some market value, and was of the opinion that it
was about 25 cents on the dollar of the par value of the bonds. I do not think that this statement
should be considered as establishing that the bonds have any value whatever in the face of a failure
to make any allegation in the petition that they were of any value and an absolute denial that they
were of value made by the answer. It is conceded that in the hands of individuals they are absolutely
uncollectible. When the property of the state, the most that can be said is that the state might
institute a suit for recovery upon these bonds against the State of North Carolina in the Supreme
Court of the [***63] United States. In such action the State of North Carolina could, if such were the
fact, show that the bonds were never legally issued or were fraudulently issued. If these questions
should be resolved in favor of the bonds, there would [*578] then remain the question whether the
provision of the constitution of the State of North Carolina was violative of the provisions of the
federal constitution, and, if this question was also determined in favor of the State of Nevada as
holder of the bonds, there would still be presented the very grave question of enforcing the judgment
against the State of North Carolina, should that state not voluntarily make provisions for the
payment. In this proceeding, we ought not, in my judgment, to indulge the presumption that the
State of North Carolina, without valid and sufficient reason therefor, embodied in its organic law a
repudiation of these bonds. For these reasons, I am of the opinion that this court is amply justified in
6/2/17, 7(47 PM
holding that there is a failure upon the part of the petitioner to make any showing that the bonds in
question are of any value. The statute of 1901, quoted in the prevailing opinion as before stated, is
only intended [***64] to apply to some "property or thing of value." It will hardly be contended, I
think, that the legislature, in passing the act of 1901, contemplated that the governor should be
required to accept bonds of the character involved in this proceeding.
This court, to refuse the writ in this case, would not have to go any further, in my judgment, than it
went in the case of State v. Beck, 25 Nev. 105, 57 P. 935. In that case this court, by Bonnifield, C. J.,
said: "Whatever may have been the legislative object in passing the act, we presume it was a good
one, but we cannot indulge such violent presumption as that the object was to compel a county to
pay a claim which has been finally adjudicated by the courts to be fraudulent on the part of the
claimant. 'Mandamus should not be be granted to compel a technical compliance with the strict letter
of the law, in disregard of its spirit.' ( Wiedwald v. Dodson, 95 Cal. 450, 30 P. 580; State v. Board
Comrs. Phillips Co., 26 Kan. 419; High, Extra. Rem., 3d. ed., sec. 9.) The writ is denied."
In the case of People v. Board of Assessors, 137 N.Y. 201, 33 N.E. 145, [***65] the court said: "The
writ of mandamus [*579] is not always demandable as an absolute right, and whether it shall be
granted or not frequently rests in the discretion of the court. ( State ex rel. v. Comrs. Phillips Co., 26
Kan. 419; People v. Hatch, 33 Ill. 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N.Y.
360, 29 N.E. 345, 14 L. R. A. 646.) The writ will be granted to prevent a failure of justice, but never
to promote manifest injustice. It is a remedial process, and may be issued to remedy a wrong, not to
promote one, to compel the discharge of a duty which ought to be performed, but not to compel the
performance of an act which will work a public and private mischief, or to compel a compliance with
the strict letter of the law in disregard of its spirit or in aid of a palpable fraud." See, also, 26 Cyc.
143-155.
Without considering any of the other questions argued in this proceeding, I am of the opinion that the
failure to allege in the petition, or otherwise establish, that the bonds offered were of any value is
conclusive of this case. The burden was on the petitioner to allege, and, if [***66] denied, to
establish upon the hearing, that the bonds were of some substantial value. The petition only alleged
that certain bonds were tendered to the respondent as acting governor, for the benefit of the state,
without any allegation whatever that they were of any value. Upon their face they appeared to be
long past due, and as having never been acknowledged as being valid subsequent to their issue by
the payment of interest thereon.
The refusal of the respondent to receive the bonds in question was based, among other grounds,
upon the ground that they were valueless. If the respondent was correct in his conclusions in this
regard, he was, in my judgment, acting within the law in refusing to accept the bonds. It was
incumbent upon the petitioner in this proceeding to allege and prove that the bonds tendered to the
governor for the state were of some material value, and, there being a failure to make such an
allegation, the petition did not state facts sufficient to entitle the petitioner to any relief. The mere
assertion by counsel [*580] for petitioner that in his judgment the bonds did possess some value
ought not to be considered in the absence of an agreement or stipulation [***67] by the respondent
or his counsel [**118] that the assertion of petitioner's counsel was a fact to be considered in the
case.
From the entire case, and particularly upon the ground of failure to allege or prove value in the bonds
tendered, it is my judgment that the writ should be denied.
Content Type: Cases
Terms: State ex rel. White v. Dickerson, 33 Nev. 540
Narrow By: -None-
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6/2/2017 18 USCS 922

(A) assign a unique identification number to the transfer;

(B) provide the licensee with the number; and

(I) allows such other person to possess or acquire a firearm; and

(v), (w) [Repealed]

(B) ammunition that is suitable for use only in a handgun.

(B) ammunition that is suitable for use only in a handgun.

(3) This subsection does not apply to--

(iv) in accordance with State and local law;

NICS Background Checks

Privacy and Security of NICS Information

service to local, state, and Federal criminal justice agencies.

Document:28 CFR 25.6 Actions

CodeofFederalRegulations TITLE28JUDICIALADMINISTRATION CHAPTERIDEPARTMENTOFJUSTICE PART25DEPARTMENTOFJUSTICE

Permanent Brady State Lists

Arizona Arkansas Delaware

D.C. Georgia Idaho

Indiana Kansas Kentucky

Louisiana Maine Massachusetts

Minnesota Mississippi Missouri

Montana New Mexico New York

North Dakota N. Mariana Islands Ohio

Oklahoma Puerto Rico Rhode Island

South Carolina South Dakota Texas

Vermont West Virginia Wyoming

Hawaii Illinois Nevada

New Jersey Oregon Pennsylvania

Tennessee Utah Virginia

States that Act as a Partial Point of Contact (POC) for NICS

Florida New Hampshire

Permit POC for handguns Department of Justice for handguns

Nebraska Last Reviewed April 28, 2017

Permit POC for handguns

If the State is acting as a POC, does that mean

Last Reviewed September 23, 2016

Every day, many lawful transfers of firearms

FACILITATING PRIVATE SALES 2 A FEDERAL FIREARMS LICENSEE GUIDE

Has been convicted of a crime punishable by a term of imprisonment

Further, Federal law prohibits the shipment, transportation, or receipt of firearms

FACILITATING PRIVATE SALES 3 A FEDERAL FIREARMS LICENSEE GUIDE

The FFL enters the firearm into its

FACILITATING PRIVATE SALES 4 A FEDERAL FIREARMS LICENSEE GUIDE

FACILITATING PRIVATE SALES 5 A FEDERAL FIREARMS LICENSEE GUIDE

For a full description of the procedures applicable

FACILITATING PRIVATE SALES 6 A FEDERAL FIREARMS LICENSEE GUIDE

Gun Owner Buyer CANNOT PURCHASE A FIREARM IF:

PROCEED DENIED DELAYED

Record the return as a

Are FFLs required to facilitate private

FACILITATING PRIVATE SALES 8 A FEDERAL FIREARMS LICENSEE GUIDE

For answers to more of your questions, visit the ATFs FAQs:

FACILITATING PRIVATE SALES 9 A FEDERAL FIREARMS LICENSEE GUIDE

Federal Firearms Licensee Quick National Instant Criminal Background

Firearms Industry Programs Branch,

FACILITATING PRIVATE SALES 10 A FEDERAL FIREARMS LICENSEE GUIDE

National Instant Criminal

2000 Operations Report

National NICS Program Oregon NICS Program

The following databases are referenced in The following databases are

Requests a criminal background check prior to completing the transfer.

Colorado: Ceased operations as a Partial POC in March 1999 and subsequently

South Carolina: Ceased operations as a Full POC in October 1999.

Oregon: Implemented Full-POC operations in December 2000.

108 Nev. 15 * | 824 P.2d 276 | 1992 Nev. LEXIS 8 *

33 Nev. 540 * | 113 P. 105 | 1910 Nev. LEXIS 39 *