Nevada Reports 1895-1897 (23 Nev.) PDF

23 Nev.
1, 1 (1895)
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; amended November 15, 1895
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RULE I.
1. Applicants for license to practice as attorneys and counselors will be examined in open
court on the first day of the term.
2. The supreme court, upon application of the district judge of any judicial district, will
appoint a committee to examine persons applying for admission to practice as attorneys and
counselors at law. Such committee will consist of the district judge and at least two attorneys
resident of the district.
The examination by the committee so appointed shall be conducted and certified according
to the following rules:
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any member
of the committee previous to the examination.
The examination shall embrace the following subjects:

1
The history of this state and of the United States;

2
The constitutional relations of the state and federal governments;

3
The jurisdiction of the various courts of this state and of the United States;

4
The various sources of our municipal law;

5
The general principles of the common law relating to property and personal rights and
obligations;
23 Nev. 1, 2 (1895) Rules of the Supreme Court

6
The general grounds of equity jurisdiction and principles of equity jurisprudence;

7
Rules and principles of pleadings and evidence;

8
Practice under the civil and criminal codes of Nevada;

9
Remedies in hypothetical cases;

10
The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of these
subjects, but only sufficiently so, fairly to test the extent of the applicant's knowledge and the
accuracy of his understanding of those subjects and books which he has studied.
4. When the examination is completed and reduced to writing, the examiners will return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character and has attained his majority, and is a bona fide resident of this State; such
certificate shall also contain the facts that the applicant was examined in the presence of the
committee; that he had no knowledge or intimation of the nature of any of the questions to be
propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of
the court before the application is made, to be returned to the applicant in case of rejection.
RULE II.
In all cases where an appeal has been perfected, and the statement settled (if there by one)
thirty days before the commencement of a term, the transcript of the record shall be filed on
or before the first day of such term.
RULE III.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and, unless so restored the dismissal shall be final, and a bar to any other
appeal from the same order or judgment.
2. On such motion, there shall be presented the certificate of the clerk below, under the
seal of the court, certifying the amount or character of the judgment; the date of its
rendition; the fact and date of the filing of the notice of appeal, together with the fact and
date of service thereof on the adverse party, and the character of the evidence by which
said service appears; the face and date of the filing of the undertaking on appeal; and the
same is in due form; the fact and time of the settlement of the statement, if there by one;
and also that the appellant has received a duly certified transcript, or that he has not
requested the clerk to certify to a correct transcript of the record; or, if he has made such
request, that he has not paid the fees therefor, if the same have been demanded.
of the clerk below, under the seal of the court, certifying the amount or character of the
judgment; the date of its rendition; the fact and date of the filing of the notice of appeal,
together with the fact and date of service thereof on the adverse party, and the character of the
evidence by which said service appears; the face and date of the filing of the undertaking on
appeal; and the same is in due form; the fact and time of the settlement of the statement, if
there by one; and also, that the appellant has received a duly certified transcript, or that he has
not requested the clerk to certify to a correct transcript of the record; or, if he has made such
request that he has not paid the fees therefor, if the same have been demanded.
RULE IV.
1. All transcripts of record in civil cases shall be printed on unruled white paper, ten
inches long by seven inches wide, with a margin, on the other edge, of not less than two
inches wide. The printed page, exclusive of any marginal note or reference, shall be seven
inches long and three and one-half inches wide. The folios, embracing ten inches each, shall
be numbered from the commencement to the end, and the numbering of the folios shall be
printed on the left margin of the page. Small pica solid is the smallest letter, and most
compact mode of composition allowed.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read. The transcript, if written,
shall be in a fair, legible hand, and each paper or order shall be separately inserted.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness; and
the transcript shall have at least one blank fly-sheet cover.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
1. The expense of printing or typewriting transcripts, affidavits, briefs or other papers on
appeal in civil causes and pleadings, affidavits, briefs or other papers constituting the record
in original proceedings upon which the case is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or stating the actual cost of such printing or
typewriting, and no greater amount than such actual cost shall be taxed as costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
tled thereto, they shall be taxed as claimed in his cost bill.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to re-taxation in such district court or
other tribunal.
RULE VII.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
required, or may produce the same duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of
appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term after
the transcript is filed, and must be noted in the written or the printed points of the respondent,
and filed at least one day before the argument, or they will not be regarded.
RULE IX.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
1. The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the
parties; provided, that all cases, both civil and criminal, in which the appeal has been
perfected and the statement settled, as provided in Rule II, and the transcript has not
been filed before the first day of the term, may be placed on the calendar, on motion of
either party, after ten days' written notice of such motion, and upon filing the transcript.
before the first day of the term, unless by written consent of the parties; provided, that all
cases, both civil and criminal, in which the appeal has been perfected and the statement
settled, as provided in Rule II, and the transcript has not been filed before the first day of the
term, may be placed on the calendar, on motion of either party, after ten days' written notice
of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
2. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities of brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the point made.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provided,
shall be deemed a waiver by such party of the right to orally argue the case, and such party
shall not recover cost for printing or typewriting any brief or points and authorities in the
case.
4. No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
5. In criminal cases it is left optional with counsel either to file written, printed or
type-written points and authorities or briefs.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
7. The times herein provided for may be shortened or extended by stipulation of parties
or order of court, or a justice thereof.
extended by stipulation of parties or order of court, or a justice thereof.
RULE XII.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Besides the original, there shall be filed ten copies of the transcript, briefs and points and
authorities, which copies shall be distributed by the clerk.
RULE XIV.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
All motions for a rehearing shall be upon petition in writing, and presented within fifteen
days after the final judgment is rendered, or order made by the court, and publication of its
opinion and decision and no argument will be heard thereon. No remittitur or mandate to the
court below shall be issued until the expiration of the fifteen days herein provided, and
decisions upon the petition, except upon special order.
RULE XVI.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No paper shall be taken from the court room or clerk's office, except by order of the court,
or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
RULE XVIII.
No writ of error or certiorari shall be issued, except upon order of the court, upon petition,
showing a proper case for issuing the same.
RULE XIX.
Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking
with the clerk of the court below, and upon giving notice thereof to the opposite party or
his attorney, and to the sheriff, it shall operate as a supersedeas.
below, and upon giving notice thereof to the opposite party or his attorney, and to the sheriff,
it shall operate as a supersedeas. The bond or undertaking shall be substantially the same as
required in cases on appeal.
RULE XX.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
The rules and practice of this court respecting appeals shall apply, so far as the same may
be applicable, to proceedings upon a writ of error.
RULE XXII.
The writ shall not be allowed after the lapse of one year from the date of the judgment,
order, or decree which is sought to be reviewed, except under special circumstances.
RULE XXIII.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles of Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
RULE XXIV.
In all cases where notice of a motion is necessary, unless for good cause shown, the time is
shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed, but, if printed, all the rules concerning the same
shall still apply thereto.
script, in the discretion of the party appealing, need not be printed; but if printed, all the rules
concerning the same shall still apply thereto.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authorities, viz.: the first impression and a copy thereof, shall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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23 Nev. 10, 10 (1895) Rules of the District Court
RULES
OF THE
District Court of the State of Nevada
___________
RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
The clerk of each county of the state shall make three calendars for the district court of his
county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another of which he shall place all civil causes at issue upon a
question of law, and all motions of every nature, except ex parte motions, as soon as the issue
is made, or as soon as notice of motion is filed; and upon the third of which he shall place all
criminal business of every kind. The names of the attorneys of the respective parties shall be
appropriately placed on such calendars. The clerk shall, on every Saturday, forward to the
presiding judge of the court, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
The judge who is to hold court in any county shall give the clerk of such county notice of
the time when court will sit. The clerk shall, immediately upon receiving such notice, give all
the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
court, in some newspaper printed and published at the county seat of his county, provided it
can be done without expense.
RULE IV.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be called
and disposed of. The trial calendar will then be called, and causes at issue upon questions of
fact disposed of. When the calendar is called the causes will be set for a time certain. Parties
are expected to be ready to try their causes, whether at issue upon questions of law or fact,
when the calendar is called, and in the order in which they are set. Parties may, prior to the
meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
RULE V.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, and be heard without previous setting or notice.
RULE VI.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such question of law, or motions, as the case may be, may
be submitted on briefs of such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is
to be complied with; and in all such cases the party who is required to act by such
decision shall receive due written notice thereof from the opposite party.
briefs of such judge, with his consent, and the decision may be filed thereafter at any time,
which decision shall fix the time when the decision of the court is to be complied with; and in
all such cases the party who is required to act by such decision shall receive due written
notice thereof from the opposite party. Time for complying with such decision, shall
commence to run from the time when service is made in the manner required by the statutes
for service of pleadings in a case; provided, that when the parties are present by their
respective attorneys when the decision is rendered, no notice shall be required.
RULE VIII.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the
court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and, upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit. In cases other than those above mentioned, ten days shall be allowed to amend or
plead, as the case may be, unless the court by its order fix a different time.
RULE IX.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion.
ing party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
RULE XI.
Upon reading and filing the notice of motion, with due proof of service of the same, and of
the papers mentioned therein, if no one appears to oppose the motion, the moving party shall
be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either
party shall be endorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
nesses than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII.
If the attorney or counsel of either party offers himself as a witness on behalf of his client,
and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the
jury, without the permission of the court.
RULE XIV.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
A party making application for a commission to take the deposition of a witness out of the
state, shall serve with the notice of such application, a copy of the direct interrogatories; and,
at least one day before the hearing of the application, the adverse party shall serve upon the
moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be
settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, that parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
RULE XVI.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and then shall file the deposition.
RULE XVII.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached, against damages, the court or judge may require an additional undertaking to be
filed, and if not filed, the attachment shall be dissolved. No attachment shall be dissolved by
reason of any defect in the attachment papers that can be amended without affecting the
substantial rights of the parties.
papers that can be amended without affecting the substantial rights of the parties.
RULE XXI.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elizor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made,
and to compute the amount due on the mortgage, preparatory to the application for
decree of foreclosure.
plaint, and to examine the plaintiff, or his agent, on oath, as to any payments which have been
made, and to compute the amount due on the mortgage, preparatory to the application for
decree of foreclosure.
RULE XXIV.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for new trial, the adverse party shall have the same number of days to propose amendments or
file counter affidavits as was allowed by such order to file such statement or affidavits.
RULE XXV.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elizor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings. The certificate shall state the title of the action, the order staying the execution
or other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
shall operate as a supersedeas of the execution or a vacation of the order.
RULE XXVII.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
the proceedings therein, will be regarded, unless the same shall be entered in the minutes in
the form of an order, by consent, or unless the same shall be in writing, subscribed by the
party against whom the same shall be alleged, or by his attorney or counsel.
RULE XXVIII.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
RULE XXX.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
RULE XXXI.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
The counsel obtaining any order, judgment or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
RULE XXXVI.
No motion once heard and disposed of shall be renewed in the same cause, nor shall the
same matters therein embraced be re-heard, unless by leave of the court granted upon motion
therefor, after notice of such motion to the adverse parties.
RULE XXXVII.
When an appeal from the justices court to this court has been perfected, and the papers are not
filed in this court within fifteen days from the day of filing the undertaking on appeal, this
court, on the production of a certificate from the justice to the effect that an appeal has been
taken and perfected, but the papers have not been ordered up, or the proper costs not paid, or
upon showing that any other necessary steps have not been taken, shall dismiss the appeal at
the cost of the appellant.
RULE XXXVIII.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that he has certified the papers as required by said section,
but that the same has not been ordered up, or the proper costs paid; or if it shall appear
that such papers are not filed in this court by reason of the neglect of the plaintiff to pay
the fees of the clerk for filing the same.
a certificate from the justice to the effect that he has certified the papers as required by said
section, but that the same has not been ordered up, or the proper costs paid; or if it shall
appear that such papers are not filed in this court by reason of the neglect of the plaintiff to
pay the fees of the clerk for filing the same.
RULE XXXIX.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Before the argument begins, counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
RULE XLI.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of said
cause, proceeding, demurrer or motion.
RULE XLII.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some
other cause is unable to act.
any act or thing required to be done in any cause or proceeding, unless it be shown by
affidavit that such judge is absent from the state, or from some other cause is unable to act.
RULE XLIV.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
____________
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court, submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
Attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby
adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be
in force in each county thirty days after the date of their filing in the clerk's office of such
counties.
that they be in force in each county thirty days after the date of their filing in the clerk's office
of such counties.
RICHARD RISING,
Presiding District Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
23 Nev. 23, 23 (1895)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
OCTOBER TERM, 1895.
____________
23 Nev. 23, 23 (1895) Holmes v. Iowa Mining Co.
[No. 1435.]
GEORGE M. HOLMES, Respondent, v. IOWA MINING
COMPANY, A Corporation, Appellant.
AppealTranscriptOriginal Papers.Where, instead of a regular transcript, the original papers are sent up on
the appeal, under Stats. 1895, 58, they must be certified to be such originals, and to constitute, in whole or
in part, the record on appeal. Where there is no certificate to that effect, the appeal will, upon motion, be
dismissed. (Syllabus by Bigelow, C. J.)
Appeal from the First Judicial District Court, Storey county; Richard Rising, District
Judge:
Action by George M. Holmes against the Iowa Mining Company. From the judgment
rendered, defendant appeals. Heard on motion to dismiss. Granted.
The facts appear in the opinion.
Henry K. Mitchell, for Appellant.
F. M. Huffaker, for Respondent.
By the Court, Bigelow, C. J.:
The respondent moves to dismiss the appeal upon the ground that the record is not
certified or authenticated as required by law.
23 Nev. 23, 24 (1895) Holmes v. Iowa Mining Co.
required by law. It consists of the original papers as authorized by Stats. 1895, 58. That act
provides that when the appellant desires to have the original papers sent to the supreme court,
they shall be certified by the clerk of the district court, or by the respective parties or their
attorneys, to be such originals, or to constitute in whole or in part the record on appeal.
Several of the papers in the case are not certified in any manner either as copies or
originals, and none of them are certified to constitute in whole or in part, the record on
appeal. The motion must, therefore, be granted. This is a defect that doubtless could have
been remedied; but, although the motion was made more than two months ago, and thereby
the appellant's attention particularly called to the matter, no attempt has been made to do so.
Objection is also made to the manner in which a question upon a motion to set aside a
sheriff's sale is sought to be presented, and although unnecessary to notice the point upon this
appeal, it is not improper to call attention to the fact that the statute mentioned has in no wise
altered the method of presenting questions to the supreme court. Wherever a motion for new
trial, or a statement on appeal, was previously necessary to their proper presentation, it is still
necessary. The only difference is that, instead of having to present a transcript of the papers to
be used on the appeal, the originals may now be certified up.
The appeal is dismissed.
____________
23 Nev. 25, 25 (1895) State v. LaGrave
[No. 1445.]
THE STATE OF NEVADA, ex rel. GEORGE D. PYNE, Relator, v. CHARLES A.
LaGRAVE, State Controller, Respondent.
Appropriation by Legislature, What Necessary to ConstituteState Money.To constitute an appropriation of
state moneys by legislative act, there must be money placed in the fund applicable to the designated
purpose. An appropriation, in the sense of the constitution, means the setting apart a portion of the public
funds for a specific public purpose. No particular form of words is necessary, if the intention to appropriate
is plainly manifest.
Original Proceeding. Application by the State, on the relation of George D. Pyne, against
C. A. LaGrave, State Controller, requiring him to draw his warrant in favor of relator, as
secretary of Company B, First Regiment, Nevada National Guard, for rent of an armory for
the company. Writ denied.
J. Poujade, for Relator:
I. Section 11, Statutes of 1895, p. 109, is, if anything, an appropriation. It shows the
intention of the legislature, that money shall be paid, for a certain purpose, within a certain
amount, when, how, by whom and, as far as requisite, the fund from which it shall be paid.
(McCauley v. Brooks. 16 Cal. 28; City v. Dunn, 69 Cal. 73; Yolo County v. Dunn, 77 Cal.
133; Proll v. Dunn, 80 Cal. 220; Humbert v. Dunn, 84 Cal. 57; Irelan v. Colgan, 96 Cal. 415;
Gilbert v. Moody, 25 Pac. 1093; Reynolds v. Taylor, 43 Ala. 420; Carr v. State, 127 Ind.
204.)
II. An appropriation to pay limited amounts periodically may be constitutional and legal
without specially setting apart moneys. (Nicholas v. Controller, 4 Stew. & Porter (Ala.) 157;
Gilbert v. Moody, 25 Pac. 1093.)
Robert M. Beatty, Attorney-General, for Respondent.
By the Court, Belknap, J.:
A former application for mandamus was dismissed upon the ground of insufficiency of the
petition (22 Nev. 417).
The application has been renewed upon a corrected statement.
The question now is whether an appropriation of the public funds has been made. It is
claimed that it is made by section 11 of the act of 1895, as follows:
Section 11. It shall be the duty of the board of county commissioners of any county in
which public arms, accouterments or military stores are now had, or shall hereafter be
received, for the use of any volunteer organized militia company, to provide a suitable and
safe armory for organized militia companies within said county. All claims for the expense of
procuring and maintaining armories shall be audited and approved by the board of military
auditors, and upon approval of such claims they shall be presented to the state controller, who
shall draw his warrant upon the state treasury for the amount so approved, and upon
presentation of said warrant the state treasurer shall pay the same out of the general fund.
Such expenses shall not exceed seventy-five dollars ($75) per month for any company, except
that each company regularly drilling with field pieces or machine guns, and using horses
therewith, may be allowed an additional sum not to exceed twelve and 50-100 dollars ($12
50) per month for each piece or gun. (Stat. 1895, 109.)
It is said that fixing the maximum amount to be paid each company and directing the
controller to draw his warrant for the amount and the treasurer to pay it constitutes an
appropriation.
These matters alone do not accomplish that end. To constitute an appropriation there must
be money placed in the fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in
the sense of the constitution means the setting apart a portion of the public funds for a public
purpose. No particular form of words is necessary for the purpose, if the intention to
appropriate is plainly manifested.
In Ristine v. State, 20 Ind. 339, the court said: An appropriation of money to a specific
object would be an authority to the proper officer to pay the money, because the auditor is
authorized to draw his warrant upon an appropriation and the treasurer is authorized to pay
such amount if he has appropriated money in the treasury. And such an appropriation may be
prospective, that is, it may be made in one year of the revenues to accrue in another or
future years, the law being so framed as to address itself to such future revenues."
appropriation may be prospective, that is, it may be made in one year of the revenues to
accrue in another or future years, the law being so framed as to address itself to such future
revenues.
In McCauley v. Brooks, 16 Cal. 28, the court said: To an appropriation within the
meaning of the constitution nothing more is requisite than a designation of the amount and
the fund out of which it shall be paid.
The authorities to which we are referred do not support the relator's contention. Except the
case of Reynolds v. Taylor, 43 Ala. 420, all are cases in which an appropriation of money had
been expressly made in terms. In Reynolds v. Taylor it was said that if the salary of a public
officer is fixed and the time of payment prescribed by law, no special annual appropriation is
necessary.
Under existing facts it is improbable that the provisions of the statute were intended as an
appropriation, because the number of military companies that could have received its benefits
was indefinite and uncertain. These facts are: The law permits one company in each of the
fourteen counties of the state, and excepts from this provision companies existing at the time
of the passage of the act. (Stats. 1893, 96.) We understand that at present there are eight
companies in the state, but that number may be increased up to the maximum at any time.
If an appropriation had been intended the act would conflict with the provisions of the law
of 1866 defining the duties of state controller. Among these duties he is forbidden to draw
any warrant on the treasury except there be an unexhausted specific appropriation to meet the
same. And it is made his duty, among other things, to keep an account of all warrants drawn
on the treasury, and a separate account under the head of each specific appropriation in such
form and manner as at all times to show the unexpended balance of each appropriation.
(Sections 1812-31, Gen. Stats.)
The foregoing requirements cannot be observed if the act of 1895 be construed as making
an appropriation because there is no specific appropriation upon which a warrant could be
drawn; and also the accounts cannot show the unexpended balance as required.
be drawn; and also the accounts cannot show the unexpended balance as required.
By a specific appropriation we understand an act by which a named sum of money has
been set apart in the treasury and devoted to the payment of a particular claim or demand. * *
* The fund upon which a warrant must be drawn must be one the amount of which is
designated by law, and therefore capable of definitive exhaustiona fund in which an
ascertained sum of money was originally placed, and a portion of that sum being drawn an
unexhausted balance remains, which balance cannot thereafter be increased except by further
legislative appropriation. (Stratton v. Green, 45 Cal. 149.)
The law of 1866 was intended to prescribe a uniform rule for the controller. That of 1895
to provide a method by which armory rent may be obtained when an appropriation shall have
been made. Thus construed there is no repugnancy between the two acts and both may well
subsist together.
Repeals by implication are not favored, said Judge Field, speaking for the court, in
Crosby v. Patch, 18 Cal. 438. Such is the universal doctrine of the authorities. Whenever
two acts,' says the supreme court of Pennsylvania, can be made to stand together, it is the
duty of a judge to give both of them full effect. Even when they are seemingly repugnant, they
must, if possible, have such a construction that one may not be a repeal of the other, unless
the latter one contain negative words, or the intention to repeal is made manifest by some
intelligible form of expression.' (Brown v. County Commissioners, 21 Pa. St. 43.) The
invariable rule of construction, says the supreme court of New York, in respect to the
repealing of statutes by implication is, that the earliest act remains in force, unless the two are
manifestly inconsistent with and repugnant to each other; or unless in the latest act express
notice is taken of the former, plainly indicating an intention to abrogate it. As laws are
presumed to be passed with deliberation, and with full knowledge of existing ones on the
same subject, it is but reasonable to conclude that the legislature, in passing a statute did not
intend to interfere with or abrogate any former law relating to the same matter, unless the
repugnancy between the two is irreconcilable."
former law relating to the same matter, unless the repugnancy between the two is
irreconcilable. (Bowen v. Lease, 5 Hill, 226.)
It is a rule,' says Sedgwick, that a general statute without negative words will not repeal
the particular provisions of a former one, unless the two acts are irreconcilably inconsistent.
The reason and philosophy of the rule, says the author, is, that when the mind of the legislator
has been turned to the details of a subject, and he has acted upon it, a subsequent statute in
general terms, or treating the subject in a general manner, and not expressly contradicting the
original act, shall not be considered as intended to affect the more particular or positive
previous provisions, unless it is absolutely necessary to give the latter act such a construction,
in order that its words shall have any meaning at all. So where an act of parliament had
authorized individuals to inclose and embank portions of the soil under the river Thames, and
had declared that such land should be free from all taxes and assessments whatsoever.' The
land tax act, subsequently passed, by general words embraced all the land in the kingdom; the
question came before the king's bench, whether the land mentioned in the former act had been
legally taxed, and it was held that the tax was illegal.
Mandamus denied.
____________
23 Nev. 29, 29 (1895) Ronnow v. Delmue
[No. 1439.]
C. P. RONNOW, CHARLES MATTHEWS, Sr., WILLIAM MATHEWS and PHILLIP
MATTHEWS, Respondents, v. JOSEPH DELMUE and MARCELLO DELMUE,
Appellants.
PracticeComplaintVerified After FilingAllegations Refer to Time of Commencement of Action.In an
action for the diversion of water, the complaint, filed April 11, 1894, was sworn to November 17, 1893,
and it was objected that it did not, for this reason, state a cause of action existing at the time of the
commencement of the action. Held, that the allegations of the complaint should be construed as referring to
the time of the commencement of the action, and that it was sufficient.
DecreeSufficiency Of.A decree is not void because it refers to the complaint for a description of the
property affected by it; does not contain the stipulation upon which it was based; does not strictly conform
to the stipulation, and was not entered against all the parties defendant in the action.
Water SuitWho May Unite In.Although parties who have separate interests in the water of a stream cannot
unite in an action for damages for its past diversion, they may unite in an action to restrain future
diversions.
FindingWhen Presumed in Support of Decree.Where there is no exception to the want of a finding, or
because the finding upon some issue is defective, a finding must be presumed in support of the decree, and
where the evidence upon the point is conflicting, the appellate court will not interfere.
Water SuitDecree Enjoining Wrongful Diversion.Where the title to water has been obtained by prior
appropriation, a decree enjoining one from wrongfully diverting it is not erroneous merely because the
party so enjoined owns the land through which the water naturally flows. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Lincoln county; A. E. Cheney,
District Judge:
Action by C. P. Ronnow, et al., against Joseph Delmue, et al. Judgment for complainants,
and defendants appeal. Affirmed.
George S. Sawyer, for Appellants:
I. The judgment and decree is not supported by the complaint. The complaint states no
cause of action, or any facts as existing at the time of the filing of the complaint, but as they
existed some five months previous. (Fairchild v. King, 36 Pac. Rep. 649.)
II. The court erred in admitting in evidence the judgment and judgment roll in the case of
Barron et al. v. Delmue et al. First: It is not a judgment; it contains no decision of any court,
and nothing can be determined from the judgment itself. (Gen. Stats. 3225; Perkins v. Sierra
U. S. M. Co., 10 Nev. 413.) Second: The stipulation on which it is based is not contained in it.
(Emeric v. Alvarado, 64 Cal. 621.) Third: It does not conform to the alleged stipulation.
Fourth: It does not determine the rights of all the parties. The rights of B. G. Wells, one of the
defendants, are entirely ignored. For aught that appears, the defendant, Wells, may have been
entitled to all of the water as against the plaintiffs and his co-defendant, Delmue. (Golding v.
Decker, 32 Pac. Rep. 835; Bissell v. Cushman, 5 Col. 76; 12 Am. & Eng. Ency., 77, and
notes.)
III. The decision and decree are against law and equity.
There are absolutely no grounds for an injunction shown. The only trespass which appears is
on the part of plaintiffs in going upon the lands of defendants, to which they had absolute
title, and interfering with ditches they had constructed and with which plaintiff had no
concern. It would be a peculiar stretch of the arm of equity to enjoin a person from preventing
a trespass upon his own land.
T. J. Osborne and Henry Rives, for Respondents:
I. All of the plaintiffs are entitled to join and seek and obtain the benefit of the injunction
sought, for any one of the plaintiffs might maintain the action for all of the remainder of
them. The case of Schultz v. Winter et al. is not in point. Our statute expressly permits the
joining of an action for waste, or for damages committed to real property, with one for the
recovery of the possession thereof. Actions respecting easements are treated in the same
manner as those respecting real estate. It was concluded that they would be entitled to join in
the action to obtain an injunction against the defendants but that they would be put to separate
actions for the recovery of their damages.
II. The contention: The judgment and decree is not supported by the complaint and
The complaint states no cause for action, or any facts as existing at the time of the filing of
the complaint, but as they existed some five months previous, is not well taken. The rule laid
down in Fairchild v. King, 36 Pac. Rep. 649, refers exclusively to money demands and the
rule there laid down proceeds upon the theory that a person pays his debts at or about the time
they are stated to be due. In respect to the alleged ownership of real property, and easements
growing out of the same, the rule is that the court will presume the ownership to have
remained as it existed at the date of the verification and until the contrary is proven.
Action to recover damages for the diversion of water to which the plaintiffs claim title by
virtue of prior appropriation, and for an injunction to restrain the future diversion thereof.
The complaint was filed April 11, 1894, but it was verified November 17, 1893, and for
this reason it is claimed that it does not state a cause of action existing at the time of the
commencement of the action. It would seem, however, that wherever the complaint alleges
the existence of a fact in the present tense, it should be construed as referring to the time of
the commencement of the action, and not to the time when it was sworn to. It was not
necessary that it should be verified at all, and if it had not been, that certainly would be the
proper construction to be put upon such an allegation. If the fact that it was verified so long
beforehand has any effect whatever it should be to nullify the verification, and leave the
complaint the same as though it had never been verified. Such a verification might be stricken
out on motion, or if treated as a nullity, the only consequences that would follow would be
that defendants would not be required to make specific denials, nor to verify their answer.
2. The complaint alleges the plaintiffs' prior appropriation of the water, which does not
appear to have been seriously questioned upon the trial except as to four acres, and then
pleads, by way of estoppel, the recovery by the plaintiffs' predecessors in interest, against the
defendants' predecessors in interest, of a decree for the possession of the water. Upon the trial
this decree was admitted in evidence, and several assignments of error are predicated upon
this ruling. The decree was rendered upon stipulation, and is defective in several respects, but
we do not think it is void. It appears from it that the right, title and right to the possession of
all the water in the stream, except enough to irrigate four acres, was decreed to be in the
plaintiffs in the action, and although it contains no description of the water so awarded, it
refers to the complaint for that purpose, where the description is ample. While this is bad
practice, for a decree should be complete in itself without reference to other documents or
records, such a decree is not void. (1 Freeman, Judg., sec. 50c; Kelly v. McKibbon, 54 Cal.
192.)
It is no more necessary that the decree should contain the stipulation upon which it was
based than that it should contain the pleadings or findings. It was clearly intended to conform
to the stipulation, and if it does not it is an error to be corrected in that case, and does not
render the decree void.
be corrected in that case, and does not render the decree void. Nor is it any objection that it
was rendered against but one of the defendants in the action. The action may have been
dismissed as to the others, but whether it was or not, it is not void as to the one against whom
it was entered. (Gen. Stats. 3170, 3171.)
3. Upon the trial the claim for damages was dismissed and the action continued simply
upon the equitable side for an injunction. The defendants then moved to dismiss the action
entirely upon the ground that the interests of the parties were not in commonthat they
owned separate interests. This motion was correctly overruled. The question of misjoinder
was not raised by either demurrer or answer, and consequently was waived. (Gen. Stats. 3062,
3066, 3067.) But really, there was no misjoinder. The plaintiffs owned separate tracts of land,
but they were joint owners of the ditch through which the water was diverted, and of the
water itself. Even had they owned separate ditches and separate water rights, though they
could not maintain a joint action for damages, they could maintain such an action for an
injunction against future diversion or obstruction of the stream. (Bliss Code Plead., sec. 76;
Foreman v. Boyle, 88 Cal. 290.)
4. As the decree was for the plaintiffs, we must presume that all the material issues upon
which there were no findings or upon which the findings were defective as being merely
conclusions of law, were found in the plaintiffs' favor, and consequently, there being no
exception to the findings upon these points, nor request for farther findings, that the court
found that the acts of the defendants did diminish the amount of water flowing to the
plaintiffs, and also that the defendants' use of the water had not been open, peaceable,
uninterrupted, under claim of right, etc., for the time necessary to create a prescriptive title in
them. The most that can be said in defendants' favor upon these points is that the evidence
was conflicting, that of the plaintiffs tending to prove that there had been no such user, and
that their acts had diminished the quantity of the water, and under these circumstances the
appellate court cannot disturb the findings, either express or implied, of the trial court.
5. If the plaintiffs have a right to the uninterrupted flow of the water except as to enough
to irrigate four acres of land, the defendants have no more right to interfere with it upon their
own land, except to take that quantity, than they have upon any other land, and the decree
enjoining them from so doing is unobjectionable. If the law were otherwise the right to the
use of water would rest upon a very frail foundation.
No prejudicial errors appearing, the judgment is affirmed.
____________
23 Nev. 34, 34 (1895) Laird v. Morris
[No. 1438.]
A. LAIRD, Appellant, v. MICHAEL MORRIS,
Respondent.
PracticeJudgment of Non-Suit No Bar to Another Action.Section 3173, Gen. Stats. (Civil Practice Act, sec.
151), does not change the inflexible rule that a judgment of non-suit is not a judgment on the merits, and
such judgment of non-suit is no bar to another suit upon the same cause of action
IdemNon-SuitStatute Construed.The only purpose of the statute (Civil Practice Act, sec. 151) was to
determine in what cases non-suits or dismissals should be entered. The statute is in affirmance of the
common law, and, though by consolidation of sections it is subject to criticism for uncertainty, the
presumption is that no change was intended in the law.
Appeal from the District Court of the State of Nevada, Eureka county; A. L. Fitzgerald,
District Judge:
Action by A. Laird against Michael Morris on an account stated and on an assigned
account for services rendered. Judgment for defendant. Plaintiff appeals. Reversed.
The facts sufficiently appear in the opinion.
Henry Rives, for Appellant:
The only question raised on this appeal is as to whether the court erred in deciding that the
dismissal of the first action amounted to a trial on the merits. All of the allegations of the
complaint in that action were fully denied by the answer, and thus distinct issues were
presented to the court for determination. Before the court could determine these issues, some
kind of proof must have been presented.
In this case, however, there is no pretense that any oral or documentary evidence whatever
in support of, or against, the issues involved were introduced.
the issues involved were introduced. The dismissal of that action was simply a non-suit
granted by the court at the request of the defendant, and, while it co-operated as a final
judgment and determination of that case, it was not under the circumstances a judgment
upon the merits. It simply operated as putting an end to that particular case, and in no way
operated as a bar to another suit on the same cause of action. (1 Nev. 495; Storey's Eq. Pl., 9th
ed., sec. 793; 42 Cal. 644; 21 Am. & Eng. Ency. of Law, 266, et seq. and note 1; 5 Id. 496; 16
Id. 747-48 and note 1; 18 Id. 730, note 2 and cases cited; Freeman on Judg., sec. 261; 1
Greenleaf on Ev., sec. 528; 36 Ill. 278; 88 Ind. 155; 34 Barber, 421; 2 Smith's Leading Cases,
887; 12 Ark. 369; 49 Iowa, 528; 113 Mass. 231; 108 Mass. 309; 7 Wall. U. S. 107; 117 Ill.
471; 101 U. S. 688.)
Thomas Wren and Peter Breen, for Respondent:
I. To understand the legal bearings of the dismissal of the first action it will be necessary
to give a brief history of these sections of our practice act providing for dismissals. The
sections of our act upon this subject were originally adopted bodily, word for word, from the
sections upon the same subject in the California practice act as they stood in 1861-2 and later,
Stats. of Cal., Practice Act, secs. 148-9, Stats. of Nev., 1861, p. 338, secs. 148-9. A number
of decisions were rendered by the supreme court of California upon these sections of the
California practice act, and in this state, in the case of Sherman v. Dilby, 3 Nev., a decision
was rendered by the supreme court of this state that, as the statute then stood, is a stronger
case in favor of appellant than the one cited by counsel for appellant in 1 Nev. It will be
observed that there were two sections of the statute of this state in regard to dismissals for a
number of years. In 1869 our present practice act was amended and materially changed in
many respects, and amongst others the two sections heretofore existing were repealed and the
provisions in regard to the dismissal of actions were embodied in one section, and the effect
of a dismissal, where a plaintiff fails to appear at the time set for the trial of an action, was
radically changed. (Gen. Stats. Nev., 3173.)
By this section as it now stands, the third subdivision of the same provides that an action
may be dismissed by the court when the plaintiff fails to appear on the trial and the
defendant appears and asks for the dismissal. * * * The dismissal mentioned in the first two
subdivisions shall be made by an entry on the clerk's register. Judgment may thereupon be
entered accordingly. In every other case the judgment shall be rendered on the merits.
II. What is obviously the purpose of the change in the statute? It could have no possible
object except to compel diligence on the part of plaintiffs in the prosecution of suits. It is to
prevent defendants from being harassed with a multude [multitude] of suits upon the same
cause of action.
Plaintiff sued defendant as surviving partner upon two counts: First, upon an account
stated; second, upon an assigned account for services rendered to the partnership.
Respondent, in his answer, among other things, plead in bar a former judgment between the
same parties and for the same cause of action.
The cause was tried by the court. It was shown by the judgment that neither the plaintiff
nor his counsel was present at the former trial and that thereupon the defendant asked for a
dismissal of the action. A judgment of dismissal was accordingly given and costs taxed to the
plaintiff. Upon this evidence the court found as a fact that the judgment was upon the merits,
and as a conclusion of law it was found that it constituted a bar to the plaintiff's recovery in
the present action.
The question upon the appeal is whether the ruling was correct.
The statute governing the subject is as follows:
3173. Sec. 151. An action may be dismissed, or a judgment of non-suit entered in the
following cases:
FirstBy the plaintiff himself at any time before trial, upon the payment of costs, if a
counter claim has not been made. If a provisional remedy has been allowed, the undertaking
shall thereupon be delivered by the clerk to the defendant, who may have his action thereon.
SecondBy either party upon the written consent of the other.
ThirdBy the court when the plaintiff fails to appear on the trial, and defendant appears
and asks for the dismissal.
FourthBy the court when upon trial, and before the final submission of the case the
plaintiff abandons it.
FifthBy the court upon motion of the defendant when upon the trial the plaintiff fails to
prove a sufficient case for the jury.
The dismissal mentioned in the first two subdivisions shall be made by an entry in the
clerk's register. Judgment may thereupon be entered accordingly. In every other case the
judgment shall be rendered on the merits.
In support of the ruling, it is said, that the practice act as originally adopted in 1861 (Stats.
1861, p. 338), was readopted in 1869 (Stats. 1869, p. 218), and upon its readoption was
materially changed. The two sections upon the subject of dismissal and judgments of non-suit
in the act of 1861 were consolidated and the effect of the change was, it is claimed, that all
cases falling under the third, fourth and fifth subdivisions of the statute became judgments on
the merits and not of dismissal or non-suit as theretofore; that the mention of the first two
subdivisions in connection with the concluding sentence of the section: In every other case
the judgment shall be rendered on the merits, excludes, by implication, all of the remaining
cases provided for.
A non-suit is the result of an abrupt termination of an action at law. It is the name of a
judgment given against the plaintiff when he is unable to prove his case or when he refuses or
neglects to proceed with the trial of a cause after it has been put on issue, without determining
such issue. Its origin can be easily traced to a very early period in the history of the common
law. (16 Am. and Eng. Ency. of Law, 721.)
The effect of a non-suit is to defeat the action, and give costs to the defendant, but the
plaintiff may commence a new action for the same cause. (3 Bl. Com. 377.)
It is a settled and inflexible rule that a judgment of non-suit is not a judgment on the
merits, and therefore is no bar to another suit upon the same cause of action."
to another suit upon the same cause of action. (Black on Judgments, sec. 699.)
The legislature is presumed to have used these terms in their accepted meaning.
The only purpose of the statute was to determine in what cases non-suits or dismissals
should be entered; and in construing it, this purpose should be kept in view. Five separate and
independent causes have been enumerated, and it is applicable to all cases to which these
conditions apply. Otherwise, only cases provided for in the first and second subdivisions
would be embraced within its provisions, and those in the third, fourth and fifth subdivisions
would be excluded. Such construction would do violence to the language of the statute and
defeat the manifest intent of the legislature. It would subordinate the principal purpose of the
statute to one of lesser importance.
The consolidation of the two sections into one worked no change in the purpose of the
law. The elder statute was free from ambiguity. The consolidation subjects it to the criticism
which has been urged. The statute is an affirmance of the common law. The presumption is
that no change was intended in that law. But if such were the intention, it would have been
made free from uncertainty.
The statute should be read as including all of the five classes of cases for which it
provides, and being so read its meaning is clear.
In Baker v. Baker, 13 Cal. 87, the court said: The statute of this state, being in affirmance
of the common law, is to be construed as was the rule of that law. This is a received
construction in such cases. Thus, in Miles v. Williams, 1 Peere Wms. 252, the court said: The
best rule of construing acts of parliament is by the common law, and by the course which that
observed in like cases of its own before the act.' And, in Arthur v. Bokenman, 11 Mod. 150,
the common pleas said: The general rule in exposition of all acts of parliament is this: That
in all doubtful matters, and when the expression is in general terms, they are to receive such a
construction as may be agreeable to the rules of the common law in cases of that nature; for
statutes are not presumed to make any alterations in the common law, further or otherwise
than the act does expressly declare; therefore, in all general matters, the law presumes
the act did not intend to make any alteration; for, if the parliament had had that design,
they would have expressed it in the act.'"
wise than the act does expressly declare; therefore, in all general matters, the law presumes
the act did not intend to make any alteration; for, if the parliament had had that design, they
would have expressed it in the act.'
Judgment is reversed and cause remanded.
____________
23 Nev. 39, 39 (1895) Wright v. Carson Water Co.
[No. 1420.]
JOHN M. WRIGHT and S. C. WRIGHT, Appellants, v. THE CARSON WATER
COMPANY, A Corporation, Respondent.
ON REHEARING.
Second AppealFacts Not Changed, Court Bound by Former Decision.Where, on the first trial of an action
against a corporation on a note, there was evidence that its execution was known to the majority of trustees
individually, and it was held on appeal that knowledge communicated to trustees as individuals, and not in
their capacity as a board, could not form the basis of an implied contract or of a ratification, the absence on
second trial of evidence of a payment of the note which was adduced on first trial, and evidence on second
trial that the execution of the note was known to the remaining member of the board individually, does not
set up a new state of facts, which would avoid the rule that the decision on first appeal becomes the law of
the case so far as applicable to facts developed on second trial. (Bigelow, C. J., dissenting.)
Appeal from the District Court of the State of Nevada, Ormsby county; Richard Rising,
District Judge.
For former opinion, see 22 Nev. 304.
Rives & Judge, and Wm. Woodburn, for Appellants.
Torreyson & Summerfield, for Respondent:
I. It is not a question in this appeal as to whether or not the decision of a majority of the
court in the former appeal (Edwards v. Carson Water Co., 21 Nev. 469) is good law, or as to
whether or not this court in subsequent cases involving the same legal questions and
principles will be bound by it, but we claim and insist that this court is bound by the decision
of the former court involving the same legal question and principle and that the same question
cannot now be litigated or decided in a different way than on the former appeal, and this in
res adjudicata.
II. A prior decision by the appellate court upon a point distinctly raised is more than
authority in the same case, being a final adjudication from which the court itself cannot
depart. (Chicago R. R. Co. v. Hull, 24 Neb. 730; Holley v. Holley, 96 N. C. 230; Warden v.
McKinnon, 99 N. C. 254; Phelan v. City and Co. San Fran., 20 Cal. 39; Heffner v. Bromnell,
75 Ia. 341; Adams Co. v. Burlington, 55 Ia. 342; Gould v. Sternberg, 128 Ill. 510, 15 Am.
Rep. 138; Fontenburg v. Fraser, 5 Ark. 200; Gwinn v. Hamilton, 75 Cal. 266; Applegate v.
Downe, 17 Or. 299; Stewart v. Preston, 80 Va. 625; Stewart v. Stebbins, 30 Miss. 66; Chand.
on Res Adjudicata, sec. 22, p. 31.)
III. The conclusiveness of a decision or decree of a court of last resort is not vitiated by
the fact that it is one of affirmance by a divided court. It forever settles the question decided
as to that case. (Durant v. Essex Co., 7 Wall. 107; People v. Circuit Judge, 37 Mich. 377;
Herman on Estoppel, vol. 1, sec. 116.)
By the Court, Bonnifield, J.:
A petition for rehearing was filed by the appellants in which it is claimed that they
introduced on the second trial testimony pertinent to the issue raised by the pleadings,
showing an entirely different state of facts from that shown at the first trial, by which they
contended that the case is taken out of the rule of res judicata, and they ask to be heard on the
matter in argument before the court.
The rehearing was granted. We held before, and still hold, that the legal questions and
principles which arose and were decided on the former appeal, whether they were correctly
decided or not, have become the law of this case so far as they are applicable to the facts
developed on the second trial. We so held upon the overwhelming weight of authorities then
cited. (39 Pac. Rep. 872.)
We also held that, substantially, the same state of facts was presented on the first trial and
first appeal as on the second, upon the vital question at issue by the pleadings and that this
court on the former appeal had decided against the validity of the note on which this action
was brought and had decided that it does not bind the respondent. We still so hold.
still so hold. It is claimed by counsel for appellant that the record discloses an entirely
different state of facts from that disclosed on the first appeal in two respects, to wit:
1. That on the first appeal the record contained evidence tending to show payment of said
note, but the record on this appeal does not contain such evidence.
2. That on the first appeal the record contained a denial of H. M. Yerington, one of the
trustees of the respondent, of all knowledge or information on his part of the existence of the
note, or indebtedness to Wright, prior to the time he became president of the company in
1889, and that the present record shows that he had such knowledge or information in 1888.
But we regard the alleged new state of facts as immaterial under the decision and ruling of
this court on the former appeal, and that the same does not take the case out of the rule of res
judicata. Let us inquire, then, what legal propositions or questions were then decided that are
decisive of this case on this appeal notwithstanding said alleged new state of facts. It was
conceded that there was no order or resolution of the board of trustees of the defendant
authorizing the execution of the note in suit and that it was not the note of the company and
that the note did not bind the company by reason of any express authority given the company
to execute it.
Then the question was, did it become the note or become binding on the company by
reason of its ratification? This question was argued and considered in all its phases by counsel
of the respective parties, and by the majority and minority of the court, as appears by their
respective opinions.
In concluding the argument and the opinion of the majority of the court on the question of
ratification, the court said: As we understand the law to be it is this: That before an
individual or corporation can be held to have ratified the unauthorized acts of his or its
agents, every detail of the transaction must have been made known to the principal. If, after
obtaining such knowledge, the principal fails to act, long and continued silence will be
deemed an approval of the act, and such ratification relates back and is equivalent to a prior
authority to make the contract.
As to the correctness of the rule as above stated there was no disagreement among the
members of the court. But as to whether the knowledge and acquiescence of the trustees
individually and not as a board would bind their principal, the corporation, there is a conflict
between the majority and minority opinions of the court given on the former appeal. In the
majority opinion the language used in the case of Yellow Jacket Company v. Stevenson, 5
Nev. 224, is quoted and adopted by the court as applicable to this case, to wit: "It cannot, we
think, be maintained that the knowledge obtained unofficially by three of the trustees, that
Stevenson was engaged in extracting ore from the mine is sufficient to charge the company
with such knowledge, as any number of trustees acting individually, and not as a board,
cannot act for the corporation, so any information obtained by individual trustees and not
communicated to the board, should not, it would seem, become the foundation of a contract
binding upon the company. The trustees represent the corporation only when assembled
together and acting as a board. Such being the law, how can it be claimed that information
communicated to them individually, not to the board, can be made the foundation of an
implied contract on the part of the corporation?"
As further authority on the same point and to strengthen its position on the question last
above named, the court cited the case of Hillyer v. Overman, 6 Nev. 55, in which case it is
held that: "The trustees can only bind the corporation, under our law, when they are together
as a board, acting as such."
It is manifest from the above quotations from the opinion of the court, that it intended to
hold and did hold in effect, that no knowledge derived by the trustees, and no information
communicated to them individually, but not to them in their capacity as a board, would be
sufficient to charge their principal, the corporation, with such knowledge or information
whereby, in law, the corporation would be deemed to have ratified the unauthorized acts of its
agents by its acquiescence, or its silence, or its delay, in repudiating such acts. That such was
the intent and the decision is apparent from the plain reading of the opinion above given
itself.
And it seems that it was so understood at the time by all the members of the court. The
correctness of the decision, however was denied by the dissenting member of the court. In the
dissenting opinion in the case on the above rulings of the court it is said: As to the case of
Yellow Jacket Mining Company v. Stevenson, 5 Nev. 224, while it was perhaps upon the
whole, correctly decided, that part of the language quoted by my associates from pages 231,
232 of the opinion is not law, nor was it so decided to be in that case. It is dictum, and the
opinion shows that the judge writing it had doubts of its correctness, for he immediately adds
(page 232): But, however this may be, it cannot possibly be maintained that a corporation
can be charged with acting upon or recognizing a fact which is known only to a minority of
its trustees.'
This is the real ground of the decisionthat is, that it had not been shown that a majority
of the board knew of the transaction, and if not, the decision is doubtless correct upon that
point, because, as the minority could not by formal resolution either authorize the act in the
first place or ratify it afterwards, knowledge and acquiescence upon their part could not have
that effect; but in the case at bar it is shown that a majority of the board knew all about the
whole situation, and that the company, by reason of its silence, acquiescence and laches of
both the board and stockholders, is estopped to deny its liability. Corporations should be held
to the same principles of honesty and fair dealing that individuals are. But as they can only act
through their agents, if acquiescence and laches upon the part of the agent will not constitute
ratification and estoppel by the corporation where it would in the case of individuals, then
they are exempt from the rules applying to others. That a corporation may ratify or estop itself
by the knowledge and acquiescence of its representatives in unauthorized acts, without the
knowledge being received or acted upon at a formal meeting of the board or stockholders.
See, in addition to the cases already cited, Scott v. Railroad Co., 86 N. Y. 200, and others.
It will be seen from the examination of the majority opinion itself that the decision on the
former appeal as to knowledge and ratification was and is that the knowledge derived by or
the information communicated to any number of trustees as individuals, and not to them
in their official capacity as a board of trustees, cannot be the foundation of an implied
contract on the part of the corporation or of the ratification by it of the unauthorized acts
of its agents.
derived by or the information communicated to any number of trustees as individuals, and not
to them in their official capacity as a board of trustees, cannot be the foundation of an implied
contract on the part of the corporation or of the ratification by it of the unauthorized acts of its
agents. That such is the decision is clear not only from the said opinion, but from the minority
opinion in the case. Hence the new alleged state of facts does not avoid the rule of res
judicata, for it relates to payment of the note and to knowledge received by and information
communicated to a trustee individually and not to the board.
The court also said in the same opinion that "the evidence in this case is conflicting and
obscure in many respects," but it is nowhere intimated that the evidence is conflicting in
relation to the fact that the board of trustees had no knowledge or information as a board of
the several matters communicated to the trustees individually. If it had found that such
conflict did exist in this respect it would have been unnecessary to have gone further.
We are of opinion that the judgment and order appealed from must be affirmed. It is so
ordered.
Belknap, J.: I concur.
Bigelow, C. J., dissenting:
Action upon a promissory note for $2,000 and interest. The answer denies its execution or
delivery. Upon this issue the plaintiff upon the trial before a jury proved that the note was
executed by the president and secretary of the defendant and delivered on the day it bears
date, in 1876; that in 1875 the plaintiff's testator had loaned the defendant $2,000, taking a
note therefor, which was renewed in 1879 by a note made in the same manner as the present
one, which was in turn renewed by the note in suit; that upon the execution of the new notes,
the former notes had been surrendered to the defendant; that the defendant had paid interest
on the notes up to 1889; that they appeared all that time as an outstanding indebtedness on the
company's books, and had been included as such in all reports by the secretary to the board of
trustees; that the president, who was also the general manager of defendant, and the secretary,
constituted a majority of the board, and, of course, knew of the execution of the notes, and
the notes had been several times particularly called to the attention of the third trustee;
that no claim had ever been made by any one that the company was not liable upon them,
or that they were not the company's notes, until 1SS9.
board, and, of course, knew of the execution of the notes, and the notes had been several
times particularly called to the attention of the third trustee; that no claim had ever been made
by any one that the company was not liable upon them, or that they were not the company's
notes, until 1889. Upon these, and similar facts the plaintiffs claimed, although they had not
proven any formal order of the board authorizing the execution of the note, that the defendant
was liable upon it, and was estopped from denying such liability.
Upon this evidence, which, of course, must at that time be taken as absolutely true, the
note was offered in evidence, but upon objection was excluded by the court on the ground
that it was not shown to be the defendant's note. This ruling was a virtual non-suit, and
necessarily resulted in a verdict for the defendant.
If the officers executing the note had implied authority to do so, or if its execution had
been ratified by the board, either expressly or by acquiescence and silence, the defendant was
as much bound by it as if authorized in the first instance. (Cook v. Tullis, 18 Wall. 332;
Morawetz Corp., sec. 618.) Ratification is a question of fact, to be decided by a jury (George
v. Nev. Cent. R. R. Co., 22 Nev. 228), and this ruling, whereby the court, in effect, decided
there was no evidence even tending to prove defendant's liability, is so clearly erroneous that
no one will attempt to defend it. The bare fact that it was signed by the defendant's president
and managing agent, and the secretary, made a prima facie case, at least, that entitled the
plaintiffs to go to the jury on the question. (Crowley v. Mining Company, 55 Cal. 273.) Upon
the ground of ratification such evidence would seem to make, not only a prima facie case, but
one that would, if the evidence were not contradicted, be absolutely conclusive.
But without contesting, or attempting to contest this fatal error, the majority of the court
are of the opinion that upon the former appeal of the case this court decided something that
justifies the ruling; that the decision so made, whether right or wrong, has become the law of
the case, and as such, binding upon both the trial court and this court. In this conclusion I
cannot concur.
In my judgment that decision is not decisive of the present appeal, for the reasons:
1. The questions presented upon the two appeals are entirely different.
2. The question now involved was not attempted to be then decided.
3. As it was not involved in that appeal, admitting that the court attempted to decide it, it
could not do so, and what is said concerning it is merely obiter.
I have already stated the question now involved, and I will now try to state what was then
presented to the court. Upon that appeal it appeared that the trial court had made findings in
favor of the plaintiffs, on which judgment had been entered against defendant for the amount
due upon the note. Then, upon the defendant's motion, made upon the ground that the
evidence did not support the findings, it had granted a new trial. From this order the plaintiffs
appealed. The one question presented upon that appeal was whether this order was erroneous.
When is an order granting a new trial on the ground that the findings are not supported by the
evidence erroneous? In Treadway v. Wilder, 9 Nev. 70, the rule is stated thus: The court
below ought not to grant a new trial when there is conflicting evidence, except the weight of
evidence clearly preponderates against the verdict. But when the court grants a new trial, the
appellate court will not interfere unless the weight of evidence clearly preponderates against
the ruling of the court.
In Hayne on New Trial, sec. 288, after a thorough summing up of the decisions, the author
says: Perhaps as good a statement of the rule as can be given (so far as motions for new trial
are concerned) is that a motion for new trial, on the ground of the insufficiency of the
evidence, is addressed to the discretion of the court below, and the ruling thereupon will not
be disturbed except for an abuse of discretion.
The particular finding which it was claimed on that appeal was not supported by the
evidence was the one in which it was found that the defendant had executed the note, and the
exact question then presented was whether there was such a preponderance of evidence in
favor of the finding that it had, as made the order granting a new trial an abuse of
discretion.
it had, as made the order granting a new trial an abuse of discretion. The dissenting judge was
of the opinion that there was, and that upon the undisputed and uncontradicted facts, the
defendant's liability was clearly established. He there said (21 Nev. 500): Rejecting the
plaintiffs' testimony wherever it conflicts with that of defendant, and taking the view of it
most favorable to the defendant, as under the circumstances we are required to do, it shows
both ratification of the note by the corporation, and such facts as should estop it from
contesting its liability." On the other hand, the majority of the court were of the opinion that
there was not such a preponderance against the ruling as required the court to reverse the
order. In their opinion it was said (p. 492): The evidence in this case is conflicting and
obscure in many particulars. The motion for new trial was made upon the ground, among
others, that the findings of fact were contrary to and not supported by the evidence, and that
the judgment was contrary to law. It does not appear on what ground the motion was granted.
The granting or refusal of a motion for a new trial on the ground of insufficiency of the
evidence to support the findings is addressed to the sound discretion of the judge who
presided at the trial of the case in the lower court, and on appeal from such order, where the
court below, in the exercise of a sound discretion, grants a new trial on conflicting evidence,
appellate courts have always refused to disturb the order.
These two extracts quite clearly indicate the question then before this court. Virtually it
was whether there was any evidence in the record then presented to show that the corporation
was not liable on the note. Now, the question is whether there is any evidence in the present
record to show that it is liable. These two questions are as wide apart as the poles, and the
decision of one should in no wise control the decision of the other. Upon the second trial had
judgment been again rendered in favor of the plaintiffs upon the same evidence, and then
another new trial been granted, upon appeal that decision would have been conclusive of the
point that granting such new trial was not an abuse of the discretion of the court, and that
there was some evidence to justify its being granted, but it ought to require no legal acumen
to see how different that question would be from that now presented.
acumen to see how different that question would be from that now presented.
In Klauber v. San Diego, etc., Co., 98 Cal. 105, the court said: As this rule is, however,
applicable only to matters which have been determined by the court, it is only where the same
matters that were determined on the first appeal are brought before it on a second appeal that
the rule can be invoked, and, being a rule that tends to prevent a judicial consideration of the
case, it is not to be extended beyond the exigencies which demand its application.
Moore v. Murdock, 25 Cal., is square upon the point that a decision upon a plaintiff's
appeal affirming an order granting a new trial is not a determination that there is no evidence
to support the plaintiff's case. Mahan v. Wood, 79 Cal. 258, also clearly points out the
difference that exists between an appeal from an order granting a new trial where the
evidence is conflicting and an appeal from a judgment in the case. Nor do I think that the
court upon the former appeal was guilty of the impropriety of attempting to decide that the
evidence then in the record did not make even a prima facie case against the defendant. There
is not one word in the record showing an intention to do so. Nowhere is it there said that there
was no evidence tending to establish the defendant's liability on the note, nor, as a matter of
law, that it was not the defendant's note. As I have already shown, there was no occasion to
consider that point. While the language used is not always clear as to just what was intended
to be expressed, a fair examination of it shows that the court was simply reviewing the
testimony for the purpose of showing that there was some evidence to support the ruling
granting the new trialthe question before itand with no thought of going on and usurping
the functions of a trial court and jury by deciding questions of fact not before it, and that it
had no jurisdiction to decide if they were.
I do not, however, deem it necessary to pursue this proposition further, for, admitting that
the attempt to forestall the question was made, the court did not have the power to do so.
I recognize the rule that what is decided upon a first appeal is not generally open to
reconsideration upon a second appeal, although there are exceptions to the rule, even as
thus stated. {U. S. v.
appeal, although there are exceptions to the rule, even as thus stated. (U. S. v. Elliott, 41 Pac.
Rep. 720.)
But this principle does not extend to all that may have been said in rendering the first
decision. It applies only to matters before the court for decision, and not to uncalled-for
expressions of opinion. Such expressions are obiter dicta, and not authority either in that case
or any other. To this effect the authorities are numerous and unanimous.
In Wixon v. Devine, 80 Cal. 385, the court said:
We have recently, in Sharon v. Sharon, 79 Cal. 633, had occasion to consider this
doctrine of the law of the case, which means, as we understand it, that the court having
erroneously decided some matter of law will always stand by the error in that case, although it
will not allow it to be a precedent in another, and we there determined that the doctrine had
nothing to commend it to the favor of the court, and that its application would not be
extended beyond the cases in which it had been held to apply. It has never, that we are aware,
been held to apply to expressions in an opinion which are merely obiter.
So, also, in State v. McGlynn, 20 Cal. 233, the court said: The law upon a question does
not become settled by the mere opinion of the judges unnecessarily expressed, but only by a
decision of the point, when being the ground, or at least one of the grounds, of a judgment.
The case of United States v. Bank of United States, 5 How. 395, is, so far as this point is
concerned, quite on all fours with this case. There, upon a first appeal, the majority of the
court had attempted to construe an instrument in writing, the construction of which was
unnecessary to the disposition of that appeal. Upon the second appeal the court said:
However high the regard of judges that did not concur may be for the views entertained and
expressed by other judges on a question of law not brought up for decision, still it is
impossible to recognize such views as binding authority consistently with the due
administration of justice, as by so doing the merits of the controversy might be forestalled
without due examination. We therefore feel ourselves at liberty to treat of the structure and
character of the instrument before us as an open question. In anology [analogy] to what was
there held I say that we should consider ourselves at liberty to consider and determine the
question now before us upon its merits, instead of following what was said on the first
appeal concerning matters not at all before the court at that time.
held I say that we should consider ourselves at liberty to consider and determine the question
now before us upon its merits, instead of following what was said on the first appeal
concerning matters not at all before the court at that time. Instead of straining to follow such a
decision, which results in the defeat of an apparently just and legal claim, the effort should
be, now that the error is admitted, to avoid following it, if possible, and thereby to do justice.
Luco v. DeToro (Cal.) 34 Pac. Rep. 516, is also quite in point here. In that case judgment
had gone against the plaintiff and he appealed. As error, he alleged that the finding of the
court as to whether he had performed the conditions of the contract upon which the action
was brought was ambiguous and uncertain. On appeal the supreme court sustained this
contention, but added that if, as contended by respondent, the finding was not uncertain, but
was a finding in favor of respondent on that issue, then it was not supported by the evidence,
which showed clearly that the plaintiff had performed. Upon the second trial, upon the same
evidence, the trial court found that he had not performed. Upon a second appeal the plaintiff
claimed that the point had been settled in his favor on the first appeal, and so far as the
language was concerned he was certainly right. In answer to this, however, the court said:
The ground upon which the former judgment of this court was rendered was the failure of
the trial court to make a finding upon the issue, and the statement in the opinion that the
finding which it had made was ambiguous and uncertain rendered what was subsequently said
about the insufficiency of the evidence to support the construction placed upon it by the
respondent in his argument merely obiter. Such a rule as the above would relieve us, just the
same as it did that court, from the consequences of a mistake made on the first appeal, and
leave us at liberty to decide this case upon its merits. People v. Skidmore, 27 Cal. 287;
Mulford v. Estudillo, 32 Cal. 131; Lathrop v. Knapp, 37 Wis. 307; Barney v. Winona, etc.,
Co., 117 U. S. 228, are to the same effect.
It is said that upon the first appeal the question of ratification was argued and considered at
great length. That is true, but it is no argument against what I have said above.
As the appellants then claimed that all the evidence showed ratification, it was necessary for
them to consider and argue it all. As the dissenting judge took the same view, it was
necessary for him to do the same. But this is quite a different thing from going to the extreme
on the other side, and holding that there was no evidence of ratification, as my associates now
claim was done. It made no difference, if the order was to be affirmed, whether there was or
not. If there was enough to support the order granting the new trial, that is, if the evidence
was substantially conflicting, that ended the matter, and the judgment must be affirmed.
Anything said farther than to show that there was some evidence to support it was pure
dictum.
As it seems to me, one other conclusive reason why that decision should not be treated as
conclusive upon this appeal may be mentioned. It cannot be denied that if anything was
decided in that case farther than that there was a conflict of evidence as to the defendant's
liability upon the note, it was a question of fact. Whether the defendant had authorized the
note, or had ratified its execution, were clearly questions for the jury. It is upon questions of
law, and not upon questions of fact, that the decision of the court becomes the law of the case.
(Sneed v. Osborn, 25 Cal. 619, 628.) In Mattingly v. Pennee, 105 Cal. 514, that court again
said: It is settled beyond controversy that a decision of this court on appeal, as to the
question of fact, does not become the law of the case.
My associates have not deemed it necessary to discuss these questions in their opinion.
The view there taken seems to be that if the material evidence of ratification is the same now
as on the first appeal, what was then said must control the present disposition of the case. In
my judgment, however, that consideration cuts but a comparatively small figure. The only
way that Mr. Yerington's knowledge or want of knowledge of the note in any way important
is that upon the first appeal the court seemed to be of the opinion that the evidence of
ratification was not conclusive, because it was not shown that he, being the third trustee and
also a large stockholder, had knowledge of it. If such were the law, it was material to show
that he did have such knowledge, and this was done by showing that the secretary's
reports containing it were particularly called to his attention in 1SS4 and again in 1SSS.
edge, and this was done by showing that the secretary's reports containing it were particularly
called to his attention in 1884 and again in 1888. In my judgment this does make quite a
material difference in the case, and is sufficient of itself to release it from the rule of res
adjudicata; especially is this the case if the question of ratification is to turn on whether all
the trustees had knowledge of, and acquiesced in, the execution of the note. But it is not by
any means the only reason why the former decision does not bind us now, nor even the most
important one.
It also seems to be their impression that the court then held that although the trustees, who
were also the principal stockholders of the corporation, knew of the existence of the note, that
such information would not be sufficient upon which to found ratification, although they
acquiesced in its execution, unless it was obtained in some official manner, or was
communicated to the board as such.
It is not asserted now that such is the law, but only that it was then so decided. In the view
I have taken of the case it is not very important whether it was or not, but I think nothing of
the kind was intended. The court held that the evidence showed that only two of the trustees
knew of the note, and the extract from the case of Yellow Jacket Co. v. Stevenson was
introduced for the purpose of showing that such knowledge of the part of a board was not
sufficient.
But admitting that it was so held and that it was a question before the court, it now appears
in the evidence that two of the trustees, who were also the president and secretary, executed
the note; that it was entered and carried as an outstanding indebtedness on the books of the
company; that it was contained in the reports of the officers, and that these reports were
examined and discussed by the trustees, and especially by the third trustee. If all this does not
constitute official information, or information to the board, it would be interesting to know
what would.
While I concurred in the first decision upon this appeal affirming the judgment, further
argument and consideration have thoroughly convinced me that it was wrong, and I therefore
dissent from the judgment.
____________
23 Nev. 53, 53 (1895) Livingston v. Wagner
[No. 1440.]
A. LIVINGSTON, Appellant, v. JOHN WAGNER,
Respondent.
SaleAction for Agreed PriceEvidence of True Value Competent.In an action for the price of goods, the
plaintiff having alleged an agreed price, it is competent for him to prove the value of the goods,
notwithstanding this allegation, and their reasonable value, not exceeding the price alleged, may be
recovered.
Findings Outside of Pleadings, Nugatory.Where a complaint alleges a sale and delivery of goods for an agreed
price of $2,000 and the answer denies that the value was greater than $500, but does not deny the sale and
delivery, a finding of no sale is outside of the pleadings and is nugatory.
Attorney and ClientCommunications When Not Privileged.Communications by parties to an attorney acting
professionally for all parties in the same transaction are not, as between them, privileged.
Appeal from the District Court of the State of Nevada, Ormsby county; C. E. Mack,
District Judge:
Action by A. Livingston against John Wagner for the purchase price of goods. From a
judgment for defendant and an order denying a new trial, plaintiff appeals. Reversed.
Trenmor Coffin, for Appellant:
I. Both complaint and answer alleged a sale of the goods from Stein Bros. to Wagner.
Each party to the suit was estopped by his pleading from proving a different state of facts
from what he has alleged. No finding or judgment can stand which is not within the issues
made by the pleadings.
II. A judgment must accord with and be sustained by the pleadings of the party in whose
favor it is rendered, and no court, jury or referee has any authority to find a fact or draw
therefrom a legal conclusion which is outside of the issues. (Marshall v. Golden Fleece Mg.
Co., 16 Nev. 136, 173, et seq., and authorities cited; Frevert v. Henry, 14 Nev. 1914; Swan
v. Smith, 13 Nev. 257-60; Bliss on Code Pl., secs. 135, 138; Boggs v. Merced Mg. Co., 14
Cal. 356; Backman v. Supelveda, 39 Cal. 688.)
III. Both complaint and answer having alleged a sale of the goods, the court's original
finding No. 3, and the latter part of the second additional finding, were and are nullities,
and should be disregarded.
part of the second additional finding, were and are nullities, and should be disregarded. (Swan
v. Smith, 13 Nev. 257-60; Backman v. Supelveda, 39 Cal. 688-9.)
IV. Plaintiff requested and the court made additional findings in which it was found that
$500 paid by Wagner was not in full for all the goods, and that the goods were worth $1,500.
The sale of the goods and the payment of $500 thereon is established by the pleadings; the
value of the goods is found by the court to be $1,500, which would leave $1,000 due. Upon
this record the judgment of dismissal should be reversed and the district court instructed to
enter a judgment in favor of plaintiff for $1,000 and costs.
V. The rulings of the court in allowing Mr. Torreyson to testify were error. (Gruber v.
Baker, 20 Nev. 453, 463, and authorities cited.)
I. Plaintiff proved a different state of facts from that alleged in his complaint; defendant
met this state of facts, and because the court found the facts as he proved them, he now
complains that the judgment of the court is not in accordance with the pleadings and is
therefore erroneous and void.
II. The rule of law is that it is the duty of the court in the absence of objections to the
sufficiency of the complaint to give the plaintiff the benefit of any cause of action established
by the evidence, and a refusal by it to direct the jury to find in accordance with the case made
by such evidence would be error. (Cowing v. Altman, 79 N. Y. 167; Knapp v. Simon, 98 N.
Y. 284; Fallon v. Lawlor, 102 N. Y. 228.)
III. The plaintiff himself proved there was no sale and that he had no cause of action under
the pleadings. A variance may require a dismissal of the action or in proper cases an
amendment may be allowed. When the plaintiff proves a contract essentially different from
the one declared on, the defendant is entitled to a non-suit on the ground of variance.
(Johnson v. Moss, 45 Cal. 515.)
IV. Variances are no longer to be determined upon the inconsistency between the
pleadings and the evidence, but solely by a proof by affidavit or otherwise that the party has
been actually misled to his prejudice in maintaining his action or defense upon the merits
by the incorrect version of the facts given in the pleading of his adversary.
been actually misled to his prejudice in maintaining his action or defense upon the merits by
the incorrect version of the facts given in the pleading of his adversary. (Bay. on Code
Pleading, 327.)
V. A variance between the proof on the trial and the allegations in the pleading shall be
disregarded as immaterial unless the court be satisfied that the adverse party has been misled,
to his prejudice thereby. (Boone on Code Pl., secs. 214, 215, and note; Dodd v. Denny, 6 Or.
153, 158; Short v. McRae, 4 Minn. 119; Bank v. Wills, 79 Mo. 275; Place v. Minister, 65 N.
Y. 104; Catlin v. Gunter, 11 N. Y. 372; Dunn v. Durant, 9 Daly (N. Y.), 339, 391.)
VI. The rule announced in Gruber v. Baker is not applicable to the facts in this case. The
witness Torreyson was only corroborating what Livingston and Stein said.
The plaintiff by his complaint alleges: * * * That on or about said May 17, 1894, said
Stein Bros. at the special instance and request of defendant, John Wagner, sold and delivered
to said defendant certain lot of goods, wares and merchandise (describing them) at the agreed
price of two thousand dollars; that said goods, wares and merchandise above mentioned were
reasonably worth the sum of two thousand dollars; that at the time said goods, wares and
merchandise were sold to defendant by said Stein Bros. said defendant paid therefor and on
account thereof the sum of five hundred dollars and no more, and plaintiff prays judgment
against said defendant for the sum of $1,500 and costs of suit.
The defendant by his answer denies and alleges as follows: * * * Defendant further
answering denies: That on or about the 17th of May, 1894, or at any other time or place, or at
all, said Stein Bros. at the special instance and request of defendant, or otherwise, sold and
delivered to defendant a certain lot of goods, wares and merchandise (describing the goods as
described in the complaint), at the agreed price of $2,000, or any other sum, except as
hereinafter specifically alleged. Denies that said goods, wares or merchandise were
reasonably worth the sum of $2,000, or any other or greater sum than the sum of $500; but
on the contrary defendant alleges that he purchased on the 17th day of May, 1S94, from
Stein Bros. a certain lot of goods, wares, and merchandise consisting of {describing the
goods), for the sum and price of $500, and that upon said last mentioned day said goods,
wares and merchandise * * * were sold and delivered to defendant by said Stein Bros.,
and defendant paid said Stein Bros. the said sum of $500 for said goods, wares and
merchandise, and upon said last mentioned day said property was delivered by said Stein
Bros.
any other or greater sum than the sum of $500; but on the contrary defendant alleges that he
purchased on the 17th day of May, 1894, from Stein Bros. a certain lot of goods, wares, and
merchandise consisting of (describing the goods), for the sum and price of $500, and that
upon said last mentioned day said goods, wares and merchandise * * * were sold and
delivered to defendant by said Stein Bros., and defendant paid said Stein Bros. the said sum
of $500 for said goods, wares and merchandise, and upon said last mentioned day said
property was delivered by said Stein Bros. to defendant, and defendant took actual possession
of the same, and ever since said date has been and now is the legal owner and holder thereof.
Defendant denies that at the time said goods, wares and merchandise were sold to defendant
by said Stein Bros. he paid to said Stein Bros. on account thereof the sum of $500, but on the
contrary avers that the said sum of $500 was paid to said Stein Bros. by defendant in full
payment and settlement for all of said goods, wares and merchandise as hereinbefore set out,
and sold by said Stein Bros. to said defendant, and he prays judgment for his costs and that
he be dismissed.
The court dismissed the action and gave the defendant judgment for his costs. The plaintiff
moved for a new trial on the grounds:
1. Insufficiency of the evidence to justify the decision and findings and judgment of the
court, and that said decision and judgment are against law.
2. Errors in law occurring at the trial and excepted to by the plaintiff.
The motion was denied, and this appeal is from the judgment and the order denying a new
trial.
The court, in its findings of fact, found:
3. That there was no sale of the property mentioned in said complaint by Stein Bros. to
the defendant for the sum of $2,000, or for any sum of money whatever. It also found: That
the value of the goods and property mentioned and described in the pleadings and in the bill
of sale was $1,500 at the date of said bill of sale, and is now of said value.
What the rights are of the respective parties under the original agreement and transaction
between Stein Bros. and the defendant concerning said goods, we are not called upon to
determine on this appeal.
the defendant concerning said goods, we are not called upon to determine on this appeal.
From the pleadings, as they now stand, we consider that the parties have mutually abandoned
or rescinded said agreement as to the objects or purposes of the transfer of the title and
possession of said goods to the defendant, and have elected to consider and treat the
transaction as an absolute sale and delivery of the goods. The action was brought by the
plaintiff upon such theory, and the defendant, by his answer, based his defense upon the same
theory. By the testimony of the parties themselves it was shown that no price was agreed on.
Then the case stood simply as an action to recover the value of the goods sold and delivered.
It is true the plaintiff alleged an agreed price; but notwithstanding this allegation it was
competent for him to prove the value of the goods.
Under an allegation of an agreed price, if there is a failure to prove the agreement as to
price, evidence of value is competent for the purpose of a recovery of what the article was
fairly worth, but not to sustain a recovery beyond the amount alleged. (Abbott's Trial
Evidence, 306; Sussdorff v. Smidt, 55 N. Y. 319; Trimble v. Stillwell, 4 E. D. Smith, 512.)
The complaint states a good cause of action to recover the reasonable value of goods sold
and delivered to the defendant at his special instance and request independently of the
allegation of an agreed price. This allegation cuts no figure in the case, except to prevent a
recovery for any greater sum than the price alleged.
The finding of the court that there was no sale of the goods made to the defendant is
finding against the pleadings; finding a fact not in issue and is therefore nugatory. The sale
and delivery of the goods are alleged in the complaint and not denied by the answer. The
value of the goods is alleged to be $2,000, a greater value than $500 is denied.
After it was shown that there was no agreed price the only question to be determined was
as to the value of the goods. On this issue the court found in favor of the plaintiff, that the
value was $1,500, but gave the defendant judgment for his costs. The judgment is manifestly
against law.
Counsel for plaintiff objected to General Torryeson's testifying to the negotiations
between Stein Bros. and the defendant in the matter of the transfer of the title and
possession of the goods in question by Stein Bros.
fying to the negotiations between Stein Bros. and the defendant in the matter of the transfer of
the title and possession of the goods in question by Stein Bros. to the defendant, on the
ground that Mr. Torreyson was employed by Stein Bros. in the transaction.
The court, after hearing evidence on the matter of employment, found that Mr. Torreyson
was acting as legal advisor of both parties in the transaction had between them, and overruled
the objection, to which ruling the plaintiff excepted. We are of opinion that the evidence fully
supports the conclusion of the court, and that Mr. Torreyson was a competent witness as to
the matters to which he testified.
The authorities are abundant and harmonious on the question, for it is agreed on every
hand that communications made to one who is acting (as attorney) for both parties are
competent and cannot be considered as privileged. (Hanlon v. Doherty, 109 Ind. 44, and
citations.)
Where an attorney at law acts in his professional capacity for several parties in the same
transaction, he can, as between the parties themselves, testify to all that was said and done.
(Michael v. Foil, 100 N. C. 178.)
When a lawyer acts as the common attorney of two parties their communications to him
are privileged as far as concerns strangers, but as to themselves they stand on the same
footing as to the lawyer and either can compel him to testify against the other as to their
negotiations. (In re Bauer, 79 Cal. 304.)
The judgment and order appealed from are reversed and new trial granted.
____________
23 Nev. 59, 59 (1895) Wills v. Bank of Nevada
[No. 1431.]
EDWARD WILLS, Appellant, v. THE BANK OF
NEVADA, A Corporation, Respondent.
Statute of FraudsOriginal Undertaking.Where there was an agreement between defendant bank and a dealer
in hay, whereby the bank was to collect for the sales of hay, and from the proceeds pay checks given by the
dealer for the purchase price thereof, and such agreement was communicated by the bank to plaintiff, who,
relying thereon, sold hay to said dealer, the transaction was not within the statute of frauds, as a verbal
promise to answer for the debt of another.
VarianceQuestions Raised for First Time in Appellate Court.Questions as to variance between the
allegations of the complaint and the proofs cannot be raised in the appellate court, when they were not
raised at the trial, if an amendment could have been properly made to meet the objections.
Appeal from the District Court of the State of Nevada, Washoe county; A. E. Cheney,
District Judge:
Action by Edward Wills against the Bank of Nevada for goods sold and delivered.
Defendant had judgment, and plaintiff appeals. Reversed.
Alfred Chartz, for Appellant:
I. This was an original promise, because the sole credit was given to the bank, and the
promisee had the right to give the sole credit to the bank instead of the bankrupt, and the
promise of the bank amounted to a virtual purchase, there being no pre-existing liability
between Mayberry and Wills, and Wills having refused to trust Mayberry, and being so poor
that he could not afford to trust him and having charged the account directly to respondent.
(Maubrey v. Cunningham, note 3, p. 202, Wood on Statute of Frauds.)
II. The attendant circumstances, the situation and general responsibility of the promisor
may be considered. (Anderson v. Hayman, 1 H. Bl. 120; Keate v. Temple, 1 B. & P. 158;
Wood on Frauds, secs. 98-100.)
III. An unconditional promise to pay for goods to be furnished to another is not within the
statute. (Morrison v. Baker, 81 N. C. 76; Wood on Frauds, sec. 128; Gordon v. Martin, Fitzg.
302; Mackay v. Smith, 28 Pac. 974.)
In Austen v. Baker, Lord Holt said that if B desired A to deliver goods to C, and promises
to see him paid, there assumpset lies against B. (Wood on Frauds, sec. 131; Talman v.
Rochester City Bank, 18 Barb. (N. Y.) 123; 13 John. (N. Y.) 175; Sinclair v. Bradley, 52 Mo.
180; Hodges v. Hall, 29 Vt. 209; 9 Ency. of Law, 72.)
IV. When the promisor makes the promise with an object of profit to himself, it is not
within the statute. (Nelson v. Boynton, 3 Metc. (Mass.) 396; Alger v. Scoville, 1 Gray (Mass.)
391; Belknap v. Bender, 75 N. Y. 446; Wood on Frauds, 264, note 2; 29 Vt. 23; 21 N. Y. 422,
418; 17 Pac. 887; 43 Mo. App. 139; 50 (Mich.) N. W. 305; 58 Am. Digest, 1892, sec. 36; 37
Am. Rep. 612; 33 Me. 368; 35 Mich. 320; Wood on Frauds, sec. 98; 56 N. Y. 334.)
V. If evidence is offered by plaintiff at variance with the allegations of the complaint, and
the counsel for the defense does not object to it at the time, nor move to strike it out upon the
grounds of variance, the error is waived. (Estee on Pl., 122; Bell v. Knowles, 45 Cal. 193; 25
Cal. 472; 25 Cal. 619.)
I. Neither the verdict of the jury nor the findings of fact of a judge, which in this case are
all implied, which are necessary to sustain the judgment, will be disturbed by the appellate
court if there is a material conflict in the evidence and there is substantial testimony to
support it or them. The same well-establishing doctrine applies to orders granting or
overruling motions for new trials when made upon the alleged insufficiency of evidence.
(Edwards v. Carson Water Co., 21 Nev. 492; Blackie v. Cooney, 8 Nev. 41; Klopper v. Levy,
98 Cal. 525.)
II. Appellant fails to distinguish between mere variance and the well-established rule of
law that the allegata and probata must correspond. While it is no doubt the law that a mere
variance between pleadings and proof will be disregarded unless objection was opportunely
made to the admission of the evidence or a motion for non-suit was seasonably made, yet this
rule of law has never been held to extend so far as to relieve a plaintiff from the necessity of
proving the essential allegations of his complaint when they are denied by the answer.
proving the essential allegations of his complaint when they are denied by the answer. To
hold otherwise would be to destroy the necessity of pleadings altogether. (Wheeler v. Schad,
7 Nev. 204; James v. Goodenough, 7 Nev. 324; Stout v. Coffin, 28 Cal. 65; Estee's Pleadings,
3d ed., vol. 1, par. 205.)
III. Appellant and Mayberry, his principal witness, both testified in effect that respondent
became security for the payment of the hay by Mayberry. It is not claimed that its promise
was in writing. If our statute of frauds means anything at all it precludes appellant from
recovering upon such testimony.
This action was brought by the appellant as plaintiff against the respondent as defendant in
the District Court of the Second Judicial District, in and for Washoe county, to recover the
sum of $642 50, balance due for hay sold by plaintiff to the defendant and delivered to James
Mayberry at the defendant's request, as alleged in the complaint. The answer consists of
specific denials of the allegations of the complaint. The case was tried by the court sitting
without a jury. The court dismissed the action and gave the defendant judgment for its costs.
The plaintiff moved for a new trial, designating in his notice of motion as one of the grounds
the insufficiency of the evidence to justify the decision made by said court and the judgment
entered in the action, and in his statement on motion for new trial he specifies several
particulars in which he claims the evidence is insufficient to justify the decision. His motion
was denied. This appeal is taken from the judgment and the order of the court denying a new
trial. The court filed no findings of fact. No question was raised by counsel for the defendant
in the court below as to any variance between the allegations of the complaint and the proofs,
and no variance was suggested by the court until the time of its oral decision of the case, and
then the case was not decided on that ground, but it was based on the ground, in effect, that
the promise of the defendant to the plaintiff was a verbal promise to answer for the debt of
Mayberry, and was within the statute of frauds. As we have come to a different conclusion
from the court below, from the evidence in the case, we here give the material portions of
the testimony of the plaintiff and James Mayberry and all the testimony of M. O. Ward,
taken from the record, to wit:
below, from the evidence in the case, we here give the material portions of the testimony of
the plaintiff and James Mayberry and all the testimony of M. O. Ward, taken from the record,
to wit:
The plaintiff testified that in November, 1891, James Mayberry came to him to purchase
his hay, and said he would buy the hay if it suited him; that he went, looked at the hay and
returned to plaintiff's house and plaintiff asked him about the pay: that Mayberry said that he
would give him a check on the Bank of Nevada, and the bank would pay it in thirty days; that
the plaintiff need not take his word for it, but he could go and see Mr. Ward; that the plaintiff
went and saw Mr. Ward, and told him what Mayberry said; that Ward said: Get Mayberry's
checks and in thirty days the bank would cash them; that the bank paid the first and second
checks; that the second check was paid before the time was up, but payment of the third and
last check was refused.
Mayberry testified, in substance, that he was indebted to the bank; that he went to the bank
primarily to make arrangements with it to enable him to buy hay, and did make such
arrangements; that his arrangements were: That as soon as the hay he purchased was
delivered on the cars he would give to his several vendors checks on the bank for the price of
the hay bought, payable in thirty days, and deliver to the bank the shipping receipts for the
hay he shipped for it, to collect for his sales and to pay his said several checks, the profits to
be applied on his debt to the bank; that he bought and sold hay from different parties and
deposited the shipping receipts with the bank; that all the returns for the sales of the hay were
made to the bank; that it collected for all the sales of the hay and collected for the sale of the
Wills hay and paid for all the hay except the last check presented by the plaintiff; that when
he went to buy the plaintiff's hay the plaintiff asked him What about the pay? that he told
the plaintiff to go to the bank and see if everything is all right; that he could not have
bought hay if the bank had not obligated itself to pay his checks; that he could not have
bought the plaintiff's hay if the bank had not promised to pay his checks for it, for the
plaintiff refused to let him have it.
had not promised to pay his checks for it, for the plaintiff refused to let him have it.
He also testified that the checks given on the bank payable in thirty days gave time for the
returns to come in for the hay, and also that the hay business was profitable, and the bank
made it all; that he owed the bank less at the end of his hay operations than he did at the
beginning.
Mr. Ward testified that he was vice-president of the corporation defendant.
By Summerfield: Q.Did Mayberry have but one agreement with the bank with regard to
the purchase of hay? A.Mayberry wanted the bank to guarantee the payment of his checks.
I was a director in the board and was vice-president also, and I was a worker in the bank.
Q.Do you know of any transactions between Mayberry and Wills, the plaintiff in this
case, and the bank relative to hay purchases from Wills? A.Yes, sir.
Q.State to the court what arrangements existed between the Bank of Nevada and Wills
and Mayberry with regard to such transactions. A.Mayberry wanted to purchase hay, and he
wanted the bank to guarantee his checks that he might be able to purchase hay.
Q.Did you have but one agreementdid the bank have but one agreement with
Mayberry about the purchase of hay? A.Only one.
Q.State what that agreement was. A.Osburn and myself, as cashier of the bank, acting
under the board of directors, upon the receipt of the shipping receipts, after the hay was baled
and on board of the cars to guarantee the payment of Mayberry's checks in thirty days from
the time the checks were accepted by us, under the expectation that the money from the sales
of the hay would be returned to the bank within thirty days' time after the receipt of the
shipping receipts, but we always credited all receipts of money to Mayberry's account.
Q.That was the agreement and that was the order that you worked under? A.Yes, sir.
The bank was to guarantee the payment of checks given by Mayberry when the shipping
receipts were in and the checks were accepted by us, within thirty days from that time.
Q.Do you remember the transaction with Wills? A.I remember it in a general way, on
account of the business at the time.
Q.State what you remember about the payment of the first check testified to here.
A.The check was presented and guaranteed and in thirty days it was paid.
Q.Did the shipping receipt accompany it? A.Wills came into the bank when the
second check was paid and the cashier was inside and I was outside, and I heard him say to
Osburn: I have a check from Mayberry for hay; when will it be paid? and Osburn said, we
will pay it now, and it was paid.
In this connection witness testified that Osburn acted contrary to the order of the board of
directors in paying that check before due. Direct examination resumed by Summerfield:
Q.Have you made a careful examination of the books of the bank with reference to that
payment in order to refresh your recollection? A.I have.
Q.Do you remember any further conversation with Wills about the hay? A.Yes, sir. I
remember that Wills informed me later on that his had all been paid for and that there was
more hay that he had on hand, and I said to him to be careful, that Mayberry's account was not
good at the bank, and I remember distinctly that he said he had got paid for the other, and he
would take chances on this. The bank had no account with Wills. The returns were credited to
Mayberry.
Q.Do you remember the conversation with Wills at the depot where he testified that you
told him not to let Mayberry have any more hay? A.I thought the conversation was at the
bank. I spoke to him a time or two. He had told me that part of the hay was still in his
possession, and I suggested to him he had better keep it, that Mayberry's account was not
good, and I said that a loaf was better than no bread, and he said he would take chances; and I
remember telling Wills that some hay in California had not been paid and that the money had
not been remitted.
On cross-examination Mr. Ward testified that his best recollection was that Wills came in
the bank and asked about the hay, and he told Wills when the hay was baled and on board the
cars and the shipping receipts were in, that Wills should bring in a check from Mayberry
for a corresponding amount and the bank would pay it in thirty days after it was accepted.
board the cars and the shipping receipts were in, that Wills should bring in a check from
Mayberry for a corresponding amount and the bank would pay it in thirty days after it was
accepted.
Q.Have you any independent recollection of the words you used to Wills and the words
used by Wills to you at the time Wills went to the bank first about selling his hay? Is not your
recollection a general recollection of the promises that you made different people?
This question was repeated many, many times, and witness finally answered as follows:
A.I simply reiterated to Wills the directions I had from the board. I tried to follow the
directions of the board as close as I could.
Q.Do you give your independent recollection of what you said to Wills at the time the
promise was made? A.That is my recollection that I told Wills those were my instructions
from the board, but I don't know that I used those words.
Q.My question is, have you any independent recollection of what you said to Wills at
that time? A.That is my recollection, because that was my instructions.
By Summerfield: Q.At the time that Wills first went to the bank was the conversation in
the presence of anyone? A.I think Mr. Osburn was there.
With regard to the payment of the second check Mr. Ward testified that if Mr. Osburn had
obeyed the order of the board of directors it would have been better for the bank.
Upon being recalled for further cross-examination, Mr. Ward was asked: Q.What
induced you to tell Wills at the railroad depot in Reno not to let Mayberry have any more
hay? A.I don't know as I told him not to let Mayberry have any more hay.
Q.What was your object in making Wills whatever promises you may have made to
him? Was it for your own personal aggrandizement, or was it to subserve the interests of the
bank? A.It was for the bank.
Counsel for appellant urges several grounds upon either of which he claims that the right
of the plaintiff to maintain this action may be based under the evidence. We do not deem it
necessary to pass on more than one of them, and thus we will avoid entering the labyrinth
of conflicting decisions on the statute of frauds, from which it seems no court and no law
writer ever emerged with satisfaction as to the rules therein laid down.
deem it necessary to pass on more than one of them, and thus we will avoid entering the
labyrinth of conflicting decisions on the statute of frauds, from which it seems no court and
no law writer ever emerged with satisfaction as to the rules therein laid down.
Taking the testimony of M. E. Ward, the principal actor for the bank, under the directions
of the board of directors, and considering the several agreements developed by his evidence
in a business light, and as transactions between business men, the fair and reasonable
construction of his evidence is, that the bank agreed with James Mayberry that when he
bought hay, and it was delivered to him on the cars, he should give the vendors his check on
the bank, payable in thirty days, for the amount of the price of the hay so delivered, and
deliver to the bank the shipping receipts for the hay shipped by him, and the bank would
collect for the sales of the hay, and pay Mayberry's vendors the several checks he issued to
them for the hay, out of the proceeds of the sales, under the expectation that the returns from
the sales of the hay would be made to the bank within thirty days from such shipment; and
that Ward informed the plaintiff, in substance, of said agreement of the bank with Mayberry,
and agreed with the plaintiff when his hay was baled and delivered on the cars he should
bring in a check from Mayberry for a corresponding amount and the bank would cash it in
thirty days.
Now, the substance of the agreement on the part of Mayberry with the plaintiff was, that
when the hay was delivered on the cars he would give the plaintiff a check, for the price of
the hay, on the Bank of Nevada, payable in thirty days, and that the bank would pay it when
due. Mayberry's promise was not that he would collect for the sales of the hay and pay the
checks out of the proceeds. This is what the bank agreed to do, according to the testimony of
both Mayberry and Ward. This was an original undertaking on the part of the bank, and not
collateral to the promise of Mayberry. Mayberry did not assume, nor was he liable in the first
instance, to do what the bank promised to do. His legal obligation which existed as a legal
incident to his agreement with the plaintiff was to pay the check if the bank made default in
its payment.
made default in its payment. In contemplation of law Mayberry was guarantor for the bank;
his obligation was to pay the check upon the bank's failure of payment. His legal obligation
was also to have funds in the hands of the bank to meet the payment of the check when due;
and his uncontradicted evidence, in this respect, is that he did so have the funds there. He
testified that he deposited the shipping receipts at the bank for them to collect for the hay, and
that the bank did collect for the hay, and collected for Wills' hay, and paid for all the hay,
except the check presented last by Wills. He also testified, that all the returns from the sales
of the hay were made to the bank.
R. S. Osburn, the cashier of the bank, testified that Mayberry ran the business in such
ambiguous way that nobody could tell head or tail where the money came from; that no
shipping receipts were ever left with the bank and the bank finally quit.
It is not denied, however, on the part of the defendant that the returns from the sales of the
hay were made to it, or that it collected the money, the bank having collected the money, we
regard the non-delivery of the shipping receipts as being immaterial, and we cannot perceive
how the ambiguous manner Mayberry ran the business could relieve the defendant of its
obligations to pay the money it received for the sale of the Wills hay to the plaintiff on his
check.
This case, under the above state of facts, comes within the third class of cases considered
by Browne in his work on the Statute of Frauds, and also by Wood on the same subject.
Browne, at page 258, says: To a third class belongs the cases in which the property of the
third party is put into the hands of the defendant for the purpose of paying out of the proceeds
thereof, the third party's debt to the plaintiff. These are cases of obligation by the defendant,
as a trustee, to make such payment, and it is that personal obligation which the plaintiff seeks
to enforce, and his right of action is not affected by the statute.
In note 1, p. 259, he cites Fullman v. Adams, 37 Vt. 397, as a case giving one of the most
intelligent and instructive opinions that have ever been delivered upon the sublect [subject] of
guaranties under the statute of frauds.
In the Vermont case the soundness of the rule is recognized, that a verbal promise to pay
the debt of another, where the promisor has received the funds or property of the debtor for
the purpose of being so applied, so that an obligation or duty rests upon him, as between
himself and the debtor to make such payment, though in form a promise to pay the debt of
another, it is in fact a promise to perform an obligation or duty of his own, and is not within
the statute.
Chief Justice Poland, in his opinion, says: And where a debtor transfers funds or property
to another for the purpose of paying his debt, and the person thus holding the funds or
property promises the creditor to pay his debt, such promise is held good, though not in
writing. And he says: We apprehend the true principle why the promise to the creditor is
valid without writing is the party making the promise holds the funds of the debtor for the
purpose of paying his debt, and as between him and the debtor it his duty to pay the debt, so
that when he promises the creditor to pay it, in substance he promises to pay his own debt,
and not that of another, and though the debtor still remains liable for his own debt, his
relation is rather that of a surety for the party whose duty it is and who has promised to pay
his debt, that of a principal for whom the other has become surety or guarantor. He holds a
fund in trust, under a duty to pay it to the creditor, and he makes an express promise to
perform it. In such case it is no violation of the spirit of the statute to hold such promise an
original one and not necessary to be in writing.
Wood on Statute of Frauds, sec. 144, says: Where the promisor has funds in his hands
belonging to the debtor, from which he has authority to pay a certain debt, the promise is not
within the statute, because it is a promise merely to pay to the creditor what he would
otherwise be bound to pay to the debtor in satisfaction of his own debt; and the same is true
where the promise is conditional, as to pay if he receives funds of the debtor to the amount of
the debt. In such case, while there is no obligation to pay unless the condition is fulfilled, yet,
if the condition is fulfilled, the promise is operative and not within the statute, because the
debtor's own funds are relied upon for payment. In support of the above rules the author
cites many authorities. "If one deliver money or personal property to another, under the
promise of the latter to deliver it over to a third person who has a beneficial interest
therein, or to convert it into money and pay him the proceeds, the third party can
maintain an action therefor against the promisor.
above rules the author cites many authorities. If one deliver money or personal property to
another, under the promise of the latter to deliver it over to a third person who has a
beneficial interest therein, or to convert it into money and pay him the proceeds, the third
party can maintain an action therefor against the promisor. A fortiori is this the case where the
person receiving the money or personalty subsequently promises the third party to deliver it to
him. (Wynn's Administrator v. Wood et al., 97 Pa. St. 216, and cases there cited.) Wood on
Statute of Frauds says the soundness of the doctrine in the above case cannot be questioned.
We have been unable to find an authority in conflict with the authorities herein cited.
In consideration of the above authorities, and the reason of the rules and legal principles
therein determined, and those rules and principles being applicable to the facts of the case at
bar, we hold that the defendant is liable in this action.
Counsel for respondent argues in support of the judgment that the proofs do not
correspond with the allegations of the complaint. The theory of the pleader was that under the
facts and circumstances of the case the defendant was the purchaser of the plaintiff's hay, and
the appellant by his counsel cites a great many authorities in support of that theory. As to the
correctness of this theory, it is not necessary and we do not pass upon it. During the progress
of the trial it was not considered that there was anything in the complaint restricting the field
of inquiry into the several agreements and transactions on the part of the three actors in
reference to the hay bought and sold and the liability or non-liability of the defendant
thereunder. If there be a variance between the allegations of the complaint and the proofs, it is
such that an amendment of the complaint could properly have been made if such objection
had been taken at the trial.
The judgment and order appealed from are reversed.
Bigelow, C. J., being disqualified under the statutes, did not participate in the decision.
____________
23 Nev. 70, 70 (1895) Crosby v. North Bonanza Silver Mining Co.
[No. 1448.]
JOHN J. CROSBY, Respondent v. THE NORTH BONANZA SILVER MINING
PracticeNew TrialPremature Ruling Upon.A motion for new trial, when made upon a statement, should
not be ruled upon until the statement has been settled and authenticated. If done, the ruling is irregular and
premature, and should be vacated upon motion.
IdemErrorsWhen Waived.A party cannot avail himself of an error to which he has consented, or which
has been induced by his own acts, when free from misapprehension or mistake.
IdemStatementStipulation.Where, before a statement has been settled, counsel stipulated that the motion
for new trial should be submitted for decision, and it is not shown that this was done through inadvertence
or mistake, a ruling on the motion does not constitute error of which the party can take advantage.
IdemNew TrialMotion for, Submitted, How Vacated.Where a motion for new trial has been regularly
submitted upon a sufficient statement, a ruling thereon cannot be subsequently vacated on motion, but the
only remedy is by appeal. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Storey county; A. E. Cheney,
District Judge:
Action by John J. Crosby against the North Bonanza Silver Mining Company. Judgment
for plaintiff. From an order overruling a motion for new trial, defendant appeals. Affirmed.
I. The party or attorney who seeks to avail himself of the want of written notice of the
presentation for settlement of a bill of exceptions and the amendments thereto, or of any
technicality not affecting his substantial rights, must be held to a prompt, consistent and exact
assertion of such technical right. (Hicks v. Masten, 101 Cal. 651; Hayne N. Tr. & A., 409 and
395; Young v. Rosenbaum, 39 Cal. 654; Shields v. Horback, 58 N. W. Neb. 793.)
II. If, however, the facts should appear to the appellate court in accidental or unusual
manner, such as by stipulation of the parties or by a recital in the order disposing of the
motion, there seems to have been no good reason why, under the old practice act, the
defect should not have been held to have been waived."
the motion, there seems to have been no good reason why, under the old practice act, the
defect should not have been held to have been waived. (Hayne on New Trials and Appeal, p.
469.) The old practice act above referred to is identical with ours, and remained so down to
1872, and decisions rendered upon this statute apply to the case at bar.
III. Where a party appears and argues a motion for a new trial, he cannot afterwards object
that the statement was not agreed to by him and that it was not settled by the judge.
(Dickenson v. Van Dorn, 9 Cal. 207; Williams v. Gregory, 9 Cal. 76; Morris v. Engle, 42 Cal.
236; Estee's Pleadings, vol. III, 478.)
IV. The court should not have decided the motion, or should have decided it as though
any objection had been waived. (Biaggi v. Howes, 63 Cal. 384; Matter of Wiertbitszky & Co.,
88 Cal. 333; Hayne, p. 499; sec. 134, p. 373; sec. 11, p. 51; Simpson v. Ogg, 18 Nev. 31, 34.)
V. An order granting or refusing a new trial, made after the regular submission of a
motion for that purpose, is reviewable only on appeal. But it is otherwise, where such an
order has been inadvertently or prematurely made. (O. F. Sv. Bank v. Duprey, 66 Cal. 170;
Morris v. DeCelis, 41 Cal. 331; Hall v. Pollack, 42 Cal. 218; Coombs v. Hibberd, 43 Cal.
453; Nichols v. Dunphy, 10 P. C. L. J. 193; Thomas v. Sullivan, 11 Nev. 280.)
VI. In the case at bar there was no argument upon the motion for new trial. It was
stipulated that the court might decide the motion without further argument, and comes within
the line and spirit of the case of Thomas v. Sullivan, 11 Nev. 280, and Morris v. DeCelis,
supra, and the case of O. F. Sv. Bank v. Duprey, 66 Cal. 170, and this court cannot say, as
was said in White v. White, 6 Nev. 23, and in McWilliams v. Hirshman, 5 Nev. 263, that the
party moving may have appeared simply to make his objections, and the record could not
show what he appeared for.
VII. Thomas v. Sullivan, 11 Nev. 280, is the only case in this state where the question
involved in this case is decided. The proceedings in this case are much more regular than they
were in Thomas v. Sullivan. In this case, as in Morris v. DeCelis, a motion was made to
vacate the order, and the motion was denied as in that case, and now an appeal is taken
from that last order, as in Morris v. DeCelis, which cause was "remanded for further
proceedings for the orderly determination of the motion for new trial."
VIII. An order denying a motion for new trial, when there is no statement settled on file,
is erroneous. {Hart v. Burnett, 10 Cal.
motion was denied as in that case, and now an appeal is taken from that last order, as in
Morris v. DeCelis, which cause was remanded for further proceedings for the orderly
determination of the motion for new trial.
VIII. An order denying a motion for new trial, when there is no statement settled on file, is
erroneous. (Hart v. Burnett, 10 Cal. 64.)
IX. The duty of the court in case a skeleton bill of exceptions is presented or a statement
on motion for a new trial improperly presented for settlement is illustrated by the following
authorities: Sampson v. Myers, 80 Cal. 485-487; Hicks v. Masten, 101 Cal. 651; Vischer v.
Smith, 92 Cal. 60; Hollom Parker, Petitioner, 131 U. S. 221; 97 Mo. 331; 131 U. S. 221.
F. M. Huffaker, for Respondent:
I. Rule 10 of the district court provides The notice of motion shall be in writing and shall
specify the papers to be used and the names of witnesses to be examined by the moving party,
etc. For a failure to comply with this rule the motion shall be denied. This rule is imperative
and counsel should have complied with it. Rules of court should be regarded and held to be
as binding and obligatory upon litigants as any other statute or rule of civil conduct. (Lightle
v. Ivancovich, 10 Nev. 41; Haley v. Eureka Co. Bank, 20 Nev. 410.)
II. The order appealed from was correct for another reason, to wit, the grounds set forth in
said notice are insufficient. The judge cannot certify anything presented or used on a motion
for new trial. The judge is not required to settle any statement where no amendments are
proposed. (Bordon v. Bender, 16 Nev. 49; Overman S. M. Co. v. Am. M. Co., 7 Nev. 312.)
III. The order of May 29th was made in the regular exercises of the jurisdiction of the
court, and therefore is not null and void. The inadvertence complained of is that of the court,
and not of counsel. This court cannot certainly say that the trial court was either inadvertent,
improvident or premature in making said order of May 29th, and counsel does not admit or
ask any relief against any inadvertence of his own, if any such there be.
his own, if any such there be. The presumption is, in the absence of a satisfactory showing,
there was none.
IV. Verbal agreements between counsel are not recognized in our practice. (Haley v.
Eureka Co. Bank, 20 Nev. 410.)
V. There appears to be no question of judicial discretion involved in this case, and if there
were, it is only a clear abuse of judicial discretion an appellate court will consider on appeal.
The 131 U. S. 221, referred to by counsel in closing his brief, is but stating in other language
the declaration of this court in Burbank v. Rivers, 20 Nev. 81, to the effect that the method of
taking appeals and the questions to be considered thereunder by the appellate court are
matters of purely statutory regulations.
Appeal from an order refusing to vacate and set aside an order overruling a motion for a
new trial, entered under the following circumstances: Judgment having been rendered against
defendant, his attorney gave notice of a motion for a new trial, and in due time filed and
served a statement thereon. No evidence, however, of this service was preserved in the
record, no amendments to the statement were made by the plaintiff, and no certificate was
made by the clerk that none had been filed.
Gen. Stats., sec. 3219, provide that when a statement has been agreed upon it shall be
authenticated by the certificate of the parties, or their attorneys, that the same has been agreed
upon and is correct. When settled by the judge it shall be accompanied by his certificate that
it has been allowed and is correct. When no amendments have been filed it shall be
accompanied by the certificate of the clerk to that effect, and this seems to be the only
certificate of the correctness of the statement then required.
In the case at bar no certificate of any kind was attached to the statement. While the record
was in this condition the parties stipulated "that defendant's motion for new trial is hereby
submitted to Hon. A. E. Cheney, who presided as judge in the trial of the above entitled
action, for his decision, without farther argument, and that the clerk of this court may forward
to said judge said statement on motion for new trial, at Reno, Nevada, and that said judge
may return the same to the above entitled court, to the clerk thereof, with his decision
thereon."
for new trial, at Reno, Nevada, and that said judge may return the same to the above entitled
court, to the clerk thereof, with his decision thereon."
Upon this submission, an order was made overruling the motion for new trial on the
ground that the statement on which the motion was made did not appear to have been served
on the plaintiff, and was in no manner authenticated.
Subsequently the motion to set aside this order was made on the ground that it had been
inadvertently and prematurely made, before the statement had been settled or authenticated.
No affidavit accompanied this notice, and when defendant offered to support the motion by
oral testimony the offer was objected to and overruled on the ground that the notice did not
give the name of any witness to be examined upon the hearing, as required by a rule of court.
The motion was then overruled and this appeal followed.
The above are not all the circumstances connected with the matter, but they are all that we
deem material to the decision of the appeal.
It will be noticed that there was no evidence given on the hearing that the motion for new
trial had been submitted inadvertently by counsel, nor that when he signed the stipulation
submitting it, he was under any misapprehension as to the condition of the statement, or the
requirements of the law, or that he expected the statement to be settled or authenticated
before the motion was ruled upon. Indeed, the motion was not based on any of the grounds
above suggested, but upon the ground alone that the order having been made before the
statement had been settled or authenticated, it was irregular and premature. We must
consequently presume that in submitting the motion counsel acted advisedly, and intended it
to be submitted in just the shape in which it was done.
Under these circumstances our attention must be confined to the point last suggested,
namely, that it was error for the court to rule upon the motion before the statement had been
certified by the clerk, or in some manner authenticated or settled.
That the order was not erroneous has been a number of times decided by this court.
(Lamburth v. Dalton, 9 Nev. 66; Dean v. Pritchard, 9 Nev. 232; Soloman v. Fuller, 13 Nev.
276; Simpson v. Ogg, 1S Nev. 2S
Dean v. Pritchard, 9 Nev. 232; Soloman v. Fuller, 13 Nev. 276; Simpson v. Ogg, 18 Nev.
28.)
But in none of these cases was the point made that the ruling was premature and irregular; we
do not, therefore consider them decisive of the question now presented, and to the end that
cases may, as far as possible, be decided upon their merits, and not upon procedure, and in
accordance with what seem a better and more just line of authorities (Thomas v. Sullivan, 11
Nev. 280; Morris v. DeCelis, 41 Cal. 331; Odd Fellows Savings Bank v. Duprey, 66 Cal. 168;
Stewart v. Taylor, 68 Cal. 5; Carpenter v. Superior Court, 75 Cal. 596), we are willing to
admit that ordinarily motions for new trial should not be ruled upon until there is a settled and
authenticated statement, where the motion is made upon a statement, and that such a ruling
would be premature and irregular, and should be vacated upon proper motion; but we do not
consider these admissions as decisive of this case.
The ordinary rule is that a party cannot avail himself of an error to which he has consented,
or which has been induced by his own acts when free from misapprehension or mistake. A
party who expressly asks that a designated ruling be made cannot avail himself of that ruling
on appeal, although it may be material and may be exhibited by the record. What a party
expressly asks cannot be made available as error without a violation of the plainest principles
of justice. (Elliott, App. Proc., sec. 626.) The error claimed here consisted of passing on the
motion for new trial before the statement had been duly authenticated. But this is precisely
what counsel stipulated should be done. That is, he stipulated that the motion should be
passed upon, and as the statement was then incomplete, and it is not shown, or suggested, that
he did not know of it, we must presume that he did, and intended it to be submitted in just the
shape in which it then was. Doubtless, if the judge had reason to believe that the stipulation
had been signed and submitted inadvertently he might have called counsel's attention to the
condition of the record, when probably it would have been corrected, but this was a matter in
his discretion, and we must not forget that it might have been the intention to submit the
motion in just the shape in which it was done. If such were the case, then the judge's only
duty was to pass upon it just as he did.
such were the case, then the judge's only duty was to pass upon it just as he did. At any rate,
having stipulated for the judge to rule upon the motion, so long as such stipulation stands
uncontroverted and unexplained, he cannot claim such ruling to constitute error. (Thompson
v. Connolly, 43 Cal. 636.) See also Hayne, New Trial and App., sec. 282.
If it be further said that by the stipulation plaintiff had waived the want of proof of service
upon him, and had waived the absence of authentication, while this may, perhaps, be true, it
simply amounts to this, that then the motion was not submitted inadvertently, and the ruling
thereon was upon a good statement, and not premature or improvident, although placed upon
a wrong ground, and the motion to vacate was not defendant's remedy, but an appeal directly
from the order. (Coombs v. Hibberd, 43 Cal. 452; Carpenter v. Superior Court, 75 Cal. 596.)
The order is affirmed.
____________
23 Nev. 76, 76 (1895) State v. Shearer
[No. 1449.]
THE STATE OF NEVADA, ex rel. F. H. NORCROSS, Relator and Appellant, v. B. C.
SHEARER, as Auditor of Washoe County, Respondent.
MandamusWill Not Lie, When.Mandamus will not lie to compel an auditor of a county to issue a warrant
on a county treasurer to pay an illegal claim against a town or city.
Board of County CommissionersPowers of, Under Town and City Government Act.All the powers and
jurisdiction exercised and all the duties performed by boards of county commissioners under the act
entitled An act providing for the government of the towns and cities of this state (Gen. Stats. 2024, et
seq.) are exercised and performed by the boards of county commissioners as such boards, and not as boards
of trustees or aldermen of the towns or cities.
District AttorneyAdviser of Board of CommissionersCompensation ofTown and City Government
Act.Under Gen. Stats., sec. 2116, providing for the district attorney at all times to give his advice, when
required, to said commissioners upon matters relating to their duties, it is the duty of the district attorney
to assist the board of commissioners in formulating and adopting ordinances, within the scope of their
authority, under the town and city government act (Gen. Stats. 2024, et seq.), and for such services he is
not entitled to additional compensation, even though he should draw such ordinances himself, instead of
telling the board how to draw them, or of dictating them to the clerk, it still being in the nature of advice in
a matter concerning the duties of the board of commissioners.
District Judge:
Petition for writ of mandamus by the State, upon the relation of F. H. Norcross, against B.
C. Shearer, as Auditor of Washoe county. The writ was denied and relator appeals. Affirmed.
Torreyson & Summerfield, for Appellant:
I. The district attorney, like all other county officers, derives no power or authority from
the constitution. He must seek for his powers and duties in the statutes alone, and he is
limited in his actions by the statute. (State v. Washoe Co., 14 Nev. 70.)
II. The duties required or authorized to be performed by the district attorney under and by
virtue of the provisions of this act (Stats. 1881, p. 68), are found in the following sections of
the Gen. Stats.: 2027, 2034. The only duties required to be performed by the district attorney
in matters relating to the government of towns and cities are those that are declared under and
by virtue of the provisions of the act, but nowhere does it state, either directly or by
implication, that it is his duty to draw town ordinances.
III. In every instance where duties are imposed on the district attorney by statute, they are
prescribed in express terms. See Gen. Stats. 461, 652, 673, 682, 694, 698, 774, 1082-3, 1099,
1105, 1114-17, 1157, 1180, 1183-6, 1244, 1219, 1571, 1586, 1595, 1695, 1960-61, 2034,
2037, 2064, 2087, 2104, 2118, 3712, 3735, 3930-31, 3952-66, 4088, 4093, 4099, 4115, 4405,
4465-66, 4538, 4830, 4864; Stats. 1887, pp. 52, 65, 84; 1889, pp. 54, 73; 1891, pp. 61,
135-139; 1895, p. 101.
IV. Under Gen. Stats. 2104, 2118, it is made the duty of the district attorney to act as
public prosecutor to draw all indictments when required. * * * He shall also perform such
other duties as may be required by law. He shall, without fee, give his opinion to any
assessor, * * * in any matter relating to the duties of their respective offices; * * * shall attend
the sittings of the board of county commissioners, * * * and shall at all times give his advice
when required to said commissioners upon matters relating to their duties.
advice when required to said commissioners upon matters relating to their duties.
The only provision of the general act, defining the duties of district attorney, that would by
any possibility relate to the point in question, is that which provides that he shall without
fee, give his opinion to any county or township officer, on matters relating to the duties of
their respective offices, and that he shall at all times give his advice to said commissioners
upon matters relating to their duties. But appellant contends that the law requiring the
district attorney to give his opinion or advice to the board of county commissioners, on
matters relating to their duties cannot be construed into making it his duty to prepare town
ordinances, whenever the board of county commissioners may desire. There is then no law
which in express terms makes it the duty of the district attorney of Washoe county to prepare
ordinances for the town of Reno at the request or order of the board of county commissioners.
There is no law, which by any reasonable construction, would imply that it was the duty of
the district attorney to prepare town ordinances.
V. The district attorney of Washoe county is paid a salary for performing certain specific
duties. If he performs services for the town of Reno or the county of Washoe that are
extra-official, such that the board of commissioners would have to pay some one for doing,
he is entitled to receive compensation over and above his salary in payment for the additional
services. An officer may be employed to discharge duties which are clearly extra-official and
outside the scope of his official duty, and which might be performed by one person as well as
another, and he will be entitled to additional compensation therefor. (Am. & Eng. Ency. of
Law, vol. 19, p. 530, and cases cited, especially Evans v. Trenton, 24 N. J. Law, 4 Zab. 764;
Love v. Bachr, 47 Cal. 364; Coller v. U. S., 22 Ct. Cl. 125; Am. Digest, 1890, p. 2859; U. S.
v. Evans, 4 Mackey (D. C.) 281.)
VI. In determining whether or not it is the duty of the district attorney to draw town
ordinances, appellant invokes the following rules of statutory construction: If a law is plain
and unambiguous, there is no room for construction or interpretation."
interpretation. (Brown v. Davis, 1. Nev. 409.) When the various sections of the statute are
clear, plain and unambiguous, the legislature must be understood to mean what it has
explicitly expressed. In such a case there is no room for construction. (Odd Fellows' Bank v.
Quillen, 11 Nev. 109.) When the language of a statute is plain, its intention must be deduced
from such language, and courts have no right to go beyond it. (State v. Washoe Co., 6 Nev.
409.) Where the interpretation of a statute in a certain way will result in manifest injustice,
courts will always scrutinize the statute closely, to see if it will not admit of some other
interpretation. (State v. Krutschnitt, 4 Nev. 178.)
T. V. Julien, for Respondent:
I. The official powers, duties, privileges and responsibilities of all county officers are
prescribed by the General Statutes of the state, including the town government act. Officers
performing services under the requirements of the town act, do so as county officers. This
relator admits. The statutes prescribe certain duties to be performed by the district attorney,
and such other duties as may be required by law, and among other duties required by law
are those mentioned in the town act. The district attorney is paid a salary for all official
services, and the town act, in express terms, prohibits that officer from demanding or
receiving compensation for services performed under the provision of that act. (Gen. Stats.
2037.)
II. The services performed by relator were not extra-official. It was as much a part of his
official duty to prepare an ordinance at the request of the board as it would be to prepare a
contract, deed or other instrument to which the town or county is a party.
III. A person accepting a public office with a fixed salary is bound to perform the duties of
the office for the salary, and cannot legally claim additional compensation for additional
incidental services, and an express promise to pay extra compensation or allowance of it is
void. (Am. & Eng. Ency. of Law, p. 529; Adams Co. v. Hunter, 78 Iowa, 328; Griffin v. Clay
Co., 63 Iowa, 413; 3 Saw. 473.)
The town government of the town of Reno, in Washoe county, was organized under an act
of the legislature entitled An act providing for the government of the towns and cities of this
state, approved February 26, 1881, and the acts amendatory thereof.
The machinery of the governments of towns and cities organized under the above named
acts is placed in the hands of the boards of county commissioners and other county officers of
their respective counties. The relator is the district attorney and the respondent is the county
auditor of Washoe county. From the record it appears that the relator drew up and presented
to the board of county commissioners of Washoe county an ordinance to regulate licenses in
the town of Reno, which the board adopted, and he presented his claim against said town to
said board in the sum of fifty dollars, the agreed price between him and said board for said
services; that the claim was allowed by the board and certified by the clerk of the board to
respondent as county auditor; that the auditor returned said claim to the board with his written
objections to its validity attached thereto; that the relator demanded of the auditor that he
issue and deliver to him a warrant upon the county treasurer, payable out of the general fund
of the town of Reno, and the auditor refused to do so; that the relator by regular proceedings
applied to the District Court of the Second Judicial District, in and for Washoe county, for a
writ of mandate to compel the respondent to issue such warrant, and that upon the hearing of
the application the court dismissed the proceedings. This appeal is from the order of
dismissal.
Mandamus will not lie to compel the auditor to issue a warrant on the county treasurer to
pay an illegal claim. The question then in this case is: Is the said claim of relator a legal claim
against the town of Reno?
The above named acts concerning the governments of the towns and cities provide: In
addition to the powers and jurisdiction conferred by other laws, the boards of county
commissioners of the counties of this state shall have the following: * * *
Fourteenth: To pass or adopt all ordinances, rules and regulations, and do and perform
all other acts and things necessary for the execution of the powers and jurisdiction by this
act conferred.
regulations, and do and perform all other acts and things necessary for the execution of the
powers and jurisdiction by this act conferred.
Fifteenth: To audit and allow all claims properly payable out of the funds of said towns
and cities.
It will be observed that all the powers and jurisdiction exercised and all duties performed
under the above provisions of the act are exercised and performed by the boards of county
commissioners as such boards, and not as boards of trustees or aldermen of the towns and
cities. The act concerning district attorneys (Sec. 2116, Gen. Stats.) requires the district
attorney to attend the sittings of the board of county commissioners when he is not engaged in
the criminal business of the district court, and at all times to give his advice, when required,
to said commissioners upon matters relating to their duties. Among the numerous powers
conferred on the boards of county commissioners by the town government act are the
following:
Ninth: To fix and collect a license tax, and regulate all places of business and amusement
so licensed. To exercise these powers and perform these duties, it is necessary for the boards
first to formulate and adopt appropriate ordinances therefore. In doing this they are entitled to
the assistance of their legal adviser, and if he, instead of telling them how to draw them, or of
dictating them to the clerk, saw fit to draw them himself, it was still in the nature of advice in
a matter it was their duty to perform; advice relating to their duties in legislating for the
town of Reno. It was a duty required or authorized by the board to be performed by him under
and by virtue of said town government act, and this act provides: No officer performing any
duty under this act shall demand or receive any compensation therefor. That act also
provides that the district attorney and other county officers named, not especially exempted
therefrom, shall perform the duties required or authorized to be performed by him or them
under and by virtue of the provisions of the act.
We find no provision specially or otherwise exempting the district attorney from advising
the board of county commissioners relating to any of their duties in matters pertaining to the
government of towns and cities; but, upon the contrary, we are of opinion that his duties
in this respect are the same as to his giving advice to the board concerning any other of
its official duties.
to the government of towns and cities; but, upon the contrary, we are of opinion that his
duties in this respect are the same as to his giving advice to the board concerning any other of
its official duties.
Counsel for appellant in his brief says: The boards of county commissioners have the
power to pass or adopt ordinances fixing and regulating licenses, but as boards of county
commissioners are generally composed of men not familiar with drafting ordinances, or the
language in which they should be couched in order that they may be in conformity with law
and without ambiguity, it is necessary as a general rule that they employ some one more
familiar with work of this nature.
We fully concur with counsel that these boards are not usually familiar with drafting
ordinances or the language in which they should be couched to avoid ambiguity. For this
reason the legislature has made it the duty of the district attorney to give them such advice
and aid in these matters as may be necessary, and whether such advice and assistance be oral
or in the form of an ordinance he is not entitled to extra compensation therefor.
It follows, therefore, that the relator's claim is not properly payable out of the funds of
the town of Reno, and is illegal. He is paid for all such services by his salary as district
attorney.
It is a well-settled rule that a person accepting a public office, with a fixed salary, is
bound to perform the duties of the office for the salary. He cannot legally claim additional
compensation for the discharge of his duties, even though the salary may be inadequate
remuneration for the service. Nor does it alter the case that by subsequent statutes or
ordinances his duties within the scope of the charter power pertaining to his office, are
increased and not his salary. Whenever he considers the compensation inadequate, he is at
liberty to resign. The rule is of importance to the public. To allow changes and additions in
the duties, properly belonging, or which may properly be attached to an office to lay the
foundation for extra compensation would introduce intolerable mischief. The rule, too, should
be rigidly enforced. The statutes of the legislature and the ordinances of our municipal
corporations seldom prescribe with much detail and particularity the duties annexed to
public offices; and it requires but little ingenuity to run nice distinctions between what
duties may and what may not, be considered strictly official; and if these distinctions are
much favored by courts of justice it may lead to great abuse.
municipal corporations seldom prescribe with much detail and particularity the duties
annexed to public offices; and it requires but little ingenuity to run nice distinctions between
what duties may and what may not, be considered strictly official; and if these distinctions are
much favored by courts of justice it may lead to great abuse. Not only has an officer under
such circumstances no legal claim for extra compensation, but a promise to pay him an extra
fee or sum beyond that fixed by law is not binding, though he renders services and exercises a
degree of diligence greater than could legally have been required of him. (1 Dillon's
Municipal Corporations, secs. 233, 234, and cases cited.)
The relator's claim being illegal the auditor had not only the legal authority, but it was his
duty to refuse to draw his said warrant on the county treasurer therefor. The question
discussed in the first briefs of the respective counsel as to whether or not the auditor has the
legal power to reject claims presented against the town of Reno, we do not pass upon, as that
question is not in this case.
The order appealed from is affirmed.
____________
23 Nev. 83, 83 (1895) Byrnes v. Douglass
[No. 1441.]
JAMES D. BYRNES and EDWARD MULVILLE, Appellants,
v. JOSEPH M. DOUGLASS, Respondent.
EjectmentDefense toCondemnation Proceedings.In an action of ejectment, where it is shown that,
subsequent to the commencement of the action, the defendant had begun proceedings for condemnation of
the premises in dispute, and that in these proceedings an order had been made authorizing him to retain
possession of the premises during the pendency of the proceedings, which were still pending, such order is
a defense to the action.
JurisdictionCollateral Attack.The petition for condemnation gave the court jurisdiction to make the order,
and, consequently, even if erroneous, it is not open to collateral attack.
IdemAverments of Petition, Not Proof of Them, Confers.It is the averments of the petition, and not proof of
them, that confers jurisdiction upon the courts.
EstoppelAssignee of Lessee.A party who takes a lease of a mine of which a tunnel is claimed and held as
part, and under that lease enters into possession of both mine and tunnel, is estopped to deny the title of his
lessors to the tunnel, and his assignee of the lease is equally estopped. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Storey county; Richard Rising,
District Judge:
Action by James D. Byrnes and others against J. M. Douglass. Judgment for defendant,
and plaintiffs appeal. Reversed.
Action of ejectment to recover possession of the Atlantic Consolidated Mining claim, and
of a tunnel known as the Atlantic Consolidated Tunnel, which begins some 300 feet from
said claim, and runs into and through the same. The complaint alleges plaintiffs' ownership of
the premises, ouster by the defendant, and that the tunnel was constructed by plaintiffs'
predecessors in interest in the mine, for the purpose of prospecting, developing, and working
the same, and that it is appurtenant to and a part of said mining claim. The answer admits
plaintiffs' ownership of the mine, but denies ouster therefrom. It admits that the tunnel was
constructed by plaintiffs' grantors, alleging that it began on what was known as the Cadiz
claim, then belonging to said grantors, and ran thence into the Atlantic claim, but that they
had abandoned and forfeited said Cadiz claim, and had abandoned the tunnel. It alleges that
the defendant's grantors had relocated the Cadiz, under the name of the Contact, and that
defendant had taken possession of the tunnel for the purpose of extending it into another
claim owned by him, and denies that it is appurtenant to or any part of the Atlantic claim.
Defendant also alleges that he has located the same as a tunnel right under the laws of
Congress, and he sets up a right to the possession of the part passing through the Atlantic
claim under an order made by the judge of the district court of Nevada, in and for Lyon
county, in condemnation proceedings commenced by him in said court against plaintiffs, for
the purpose of condemning a right of way through the claim, authorizing him to take
possession of the same during the pendency of the proceedings, which were still pending.
The evidence shows that the tunnel was originally partly constructed in 1862, for the
purpose of obtaining a supply of water for Silver City, and, after its use for that purpose was
abandoned, its owners used it for the purpose of prospecting and working the Atlantic claim,
then belonging to them; and that it has always since been in possession of the owners of
said claim until defendant took possession of it, and has always been claimed by them as
a part of said mine.
and working the Atlantic claim, then belonging to them; and that it has always since been in
possession of the owners of said claim until defendant took possession of it, and has always
been claimed by them as a part of said mine. The Atlantic claim has been patented, but no
mention of the tunnel is made in the patent. In 1876 the owners of the Atlantic located the
ground upon which the mouth of the tunnel was situated, under the name of the Cadiz. The
annual work not having been done on the Cadiz, it was relocated January 22, 1887, by T. P.
Mack, but he did no work on it, and it again became open to location. In March, 1890, the
then owners of the Atlantic leased the mine to W. H. Stanley, and placed him in possession of
the same, including the tunnel. In July, 1890, the Cadiz ground was again relocated by C. E.
Brown, under the name of the Contact, and he, in June, 1891, conveyed the same to Stanley
and one Millevich. In September, 1891, the defendant purchased from Stanley his interest in
the unexpired lease and his half interest in the Contact ground. Defendant then took
possession of both claims and of the tunnel. The court found that the tunnel was not
appurtenant to the mine, that the plaintiffs were not entitled to its possession, and gave
judgment for the defendant. Plaintiffs appeal.
W. E. F. Deal, for Appellants:
I. The respondent having taken possession as tenant of appellants was estopped from
denying appellants' tunnel right. (Rector v. Gibbon, 111 U. S. 276.)
II. One of the covenants of the lease, under which respondent held title to the tunnel, was
that he should, at its expiration, surrender the premises. He not only did not do this, but he
denied appellants' title and sought to acquire an adverse title to the land upon which the
mouth of the tunnel was situated. Respondent can only hold such title as trustee for
appellants.
F. M. Huffaker, for Respondent:
I. When respondent filed his supplementary answer, setting up the condemnation
proceedings, with a certified copy of the order of the district judge, giving him possession of
this very tunnel pending said proceedings, and also showing that appellants had removed
the proceedings into the U. S. Circuit Court, appellants could not maintain any action for
the recovery of the possession of the tunnel while said order remained in force, and all
questions as to title and compensation must be determined in the condemnation
proceedings.
this very tunnel pending said proceedings, and also showing that appellants had removed the
proceedings into the U. S. Circuit Court, appellants could not maintain any action for the
recovery of the possession of the tunnel while said order remained in force, and all questions
as to title and compensation must be determined in the condemnation proceedings. (Stats.
1875, 111.)
II. Appellants have no title to anything except what is contained in the sheriff's deed under
the Blackburn judgment. This did not include the Contact ground or any tunnel thereon.
By the Court, Bigelow, C. J. (after stating the facts):
The only part of the plaintiffs' mining claim which the defendant was detaining from them
at the commencement of the action is the tunnel above described. That, consequently, is all
there is in dispute. The order in the condemnation proceeding authorized the defendant,
during the pendency of those proceedings, to take possession of that part of the tunnel which
passed through the Atlantic mining claim. This order, if valid, would seem to be a complete
defense as to that part of the ground. Its validity is attacked only upon one point, and that is
that a tunnel constructed for the purpose of one mine cannot be condemned for the use of
another mine; and a long list of authorities are cited wherein that principle has been asserted.
We do not, however, deem it necessary to decide the point upon this appeal. As this is a
collateral attack upon the order, the question is not whether it is erroneous, but whether the
court had jurisdiction to make it. (Van Fleet, Coll. Attack, secs. 16, 17.) Condemnation
proceedings are commenced by the filing of a petition. (Gen. Stats., sec. 257.) Section 267
provides that at any stage of the proceedings the court may make an order placing the
petitioner in possession of the property upon his giving a sufficient bond. The petition filed
here alleged that the tunnel had been constructed by the defendant. If so, it probably would
not be contended that the right to maintain it was not subject to condemnation (Rand. Em.
Dom., sec. 118), and consequently subject to any order that might be lawfully made in the
proceedings. The evidence in this case tends to show that the allegation in the petition that
the defendant had constructed the tunnel is not true, but this is immaterial, as jurisdiction
to act comes from the averments of the petition, and not from proof of their truthfulness.
tends to show that the allegation in the petition that the defendant had constructed the tunnel
is not true, but this is immaterial, as jurisdiction to act comes from the averments of the
petition, and not from proof of their truthfulness. (Stuart v. Allen, 16 Cal. 474; Richardson v.
Butler, 82 Cal. 181; Van Fleet, Coll. Attack, sec. 60.) The proper procedure would, doubtless,
have been to have stayed this action until the application to condemn had been finally
disposed of, and probably that would have been done had either party asked it; but, as they
did not, we do not think the court erred in rendering judgment for the defendant as to that part
of the tunnel covered by the order. Should the defendant finally fail in the proceedings, this
judgment will probably be no bar to another action of ejectment.
As to that part of the tunnel outside the Atlantic claim it appears unnecessary to consider
the interesting question, argued at considerable length, of whether a tunnel run through the
public mineral lands of the United States by a mine owner, for the purpose of developing or
working his mine, can be taken from him by the subsequent location of the ground upon
which it is situated outside the boundaries of his claim. The evidence is clear that the tunnel
was constructed by the owners of the Atlantic mine, and was appropriated to and used for the
purposes of that mine for a number of years. Whenever the mine was conveyed, the
possession of the tunnel went with it. It was occupied and treated as a part of the mine, and, at
least as against all the world except such a subsequent locator, was part and parcel of it. The
evidence also shows, without contradiction, that, when Stanley took a lease of the property,
he was placed in possession of the tunnel as a part of his leasehold estate. Under these
circumstances, he was estopped to deny the title of his lessors. Having entered into possession
under the lease, the outstanding title purchased from Brown, whether good or bad, could not
have been asserted by him until after he had surrendered the possession to those from whom
he had obtained it. Such being the case, his assignee of the lease, the defendant, stands in no
better position, and is also estopped to deny that title; and, as no question is made that the
plaintiffs have succeeded to the title, he is equally estopped to deny their title. {Wood, Land
& Ten., sec.
estopped to deny their title. (Wood, Land & Ten., sec. 232; Tayl. Land. & Ten., sec. 91;
Bigelow, Estop. 396; Rector v. Gibbon, 111 U. S. 276.)
The fact that the defendant, at the same time that he obtained an assignment of the lease,
also purchased from the lessee, Stanley, a half interest in the Contact location, cuts no figure
in the case; for, having obtained the possession from him he is equally estopped, no matter
how many other titles he may have. The same principle will apply to the tunnel location. If it
has any validity in such a case as this, which is very doubtful, the defendant is estopped to
assert it.
Judgment reversed, and cause remanded for a new trial in accordance with this opinion.
____________
[No. 1452.]
THE STATE OF NEVADA, ex rel. H. C. CUTTING, Relator, v.
C. A. LaGRAVE, State Controller, Respondent.
Traveling ExpensesSuperintendent of Public InstructionHotel Bills Not Included.Hotel bills incurred by
the superintendent of public instruction while staying at a place for the purpose of visiting schools, are not
a part of the actual traveling expenses, which, under Gen. Stats., sec. 1292, are to be allowed and paid to
that officer. (Syllabus by Bigelow, C. J.)
Original Proceeding. Application by the State, on the relation of H. C. Cutting,
Superintendent of Public Instruction, for mandamus against C. A. LaGrave, State Controller.
Writ refused.
Alfred Chartz, for Relator:
I. The words actual traveling expenses have been construed by all of respondent's
predecessors in office and by every legislature since the passage of the law to mean and to
include necessary hotel bills. The legislature has passed relief bills and did pay such expenses
when previous legislatures omitted to make appropriations for the same. These facts are
admitted, but it is claimed that they do not bind. On this point of difference we cite:
Sutherland on Statutory Construction, par. 309, last part; Sedgwick on the Construction of
Statutory and Constitutional Law, p.
tion of Statutory and Constitutional Law, p. 227, note; also, Sutherland on Statutory
Construction, par. 419; State v. Gray, 21 Nev. 386, and cases cited.
II. An officer's salary is his private property, and the legislature could not have intended to
place duties upon a superintendent of public instruction which would compel him to expend
it in their performance, nor to limit his expenses in such manner as to make his personal
interests antagonistic to the proper performance of his duties.
Robt. M. Beatty, Attorney-General, for Respondent:
I. Every person, officer or not, must eat and sleep, and whether a state officer eats or
sleeps in one place or another is of no consequence to his employer, the state, for it pays him
his salary for his every official act, and it is reasonably supposed that out of his salary he
needs must pay his expenses of eating and sleeping. The law says it is his duty to leave home
on occasions, and what he would eat at home remains to his advantage uneaten so far as he is
individually concerned. But even say that it works a hardship, yet it is one of those hardships
imposed by law, and the officer should know the law's requirements before entering upon the
duties of the office, and if he does not and learns it only after being in office, if dissatisfied,
he can easily resign.
II. Relator is a salaried officer of the State. The statutes of Nevada allow certain officers
entitled to salaries or per diem traveling expenses or expenses in traveling, i. e., fare or
transportation, namely: District judges, superintendents of public instruction and officers
having in charge convicts or insane persons, but to officers who receive no salary or per diem,
such as regents and members of the board of visitors to the university, as follows: Regents, no
salary, but necessary expenses in attending meetings of their board (Stats. 1887, p. 44).
University visitors, no salary, no traveling expenses, but board and lodging while at the
university. (Stats. 1895, p. 41, sec. 5.) Officers with convicts or insane persons in charge
received mileage until 1875 and then per diem, eight dollars per day, and expenses in (not
while) traveling and necessary expenses of transportation of prisoners. This was amended
in 1891 to per diem, five dollars per day and the same expenses for traveling.
per day and the same expenses for traveling. (Stats. 1875, p. 64; 1891, p. 25.) District judges,
salary and necessary expenses paid for traveling by public conveyances. (Stats. 1885, p. 61.)
And last, superintendent of public instruction, salary and actual traveling expenses. (Gen.
Stats. 1292.) Hence it is readily seen that without any interpretation or construction of the
statute under consideration, save the plain ordinary meaning of its exact language, relator is
entitled to actual traveling expenses; not even actual expenses even while traveling, but
actual traveling (not any other of whatsoever kind or character) expenses.
Original application for a writ of mandamus to compel the respondent, as state controller,
to draw a warrant upon the treasury in favor of relator, for certain expenses claimed to be
payable to him under the following statute: It shall be the duty of the superintendent of
public instruction to visit each county in the state, at least once in each year, for the purpose
of visiting schools, of consulting county superintendents, of lecturing and addressing public
assemblies on subjects pertaining to public schools; and the actual traveling expenses
incurred by the superintendent in the discharge of his duty shall be allowed, audited and paid
out of the general fund, in the same manner as claims upon said fund are now allowed,
audited and paid; provided, that the sum so expended in any one year shall not exceed one
thousand dollars. (Gen. Stats. 1292.)
The affidavit for the writ states that the relator visited the schools at Wadsworth and
Virginia City, and while at those places necessarily incurred certain expenses at the hotels for
board and lodging. The statute permits the payment of actual traveling expenses. Do these
items come within the meaning of those words? It seems to us very clear that they do not.
Undoubtedly they are a part of the expenses of the trips which the legislature required the
relator to make, and which that body must have known would necessarily be incurred by him
in making his visits. It must also have known that if he addressed public assemblies expense
would necessarily be incurred in providing a hall for that purpose, for fuel, lights, etc.
for fuel, lights, etc. But it seems to have been the intention that none of these expenses should
be borne by the State. It is not the expense of the trip, or the expense incurred after the
superintendent arrives at his destination, that is to be paid, but his actual traveling
expenses. Travel, in visiting a school, is going to and returning from the place where the
school is situated. But, after he arrives there, he certainly is not, during his stay, traveling;
consequently his expenses, while there, are not incurred in traveling. But to make the matter
still more certain, and apparently for the purpose of insuring that no general expense of the
trips should be included, it is provided that the traveling expenses must be actual. There are
to be no constructive traveling expenses paid, but only such as are actual; that is, such as are
real, bona fide, genuine expenses of travel. Had it been the intention to pay all the legitimate
expenses of the superintendent's trips, these words of limitation would not have been used.
Whatever else may be included in the term actual traveling expenses, we think it was not
intended to include hotel expenses while staying at a place for the purpose of visiting the
schools or discharging the other duties of the office.
It was said in argument that it has been the custom for many years past to allow and pay
such items so incurred by the superintendents, and that such construction of the statute by the
officers having power to allow claims against the state is entitled to great weight in
determining its meaning.
Where property rights have been built up in reliance upon an erroneous construction of a
statute by public officers, or where overturning such a construction would unsettle many
important laws, and consequently cause loss and hardship to the community, these
considerations sometimes press quite heavily upon the courts, especially if the true
construction was really doubtful. But where such is not the case, and where the statute is as
clear as we deem this to be, to so hold would simply be to say that as the state has been, for a
long time, paying these illegal claims, it must continue to do so. Contemporaneous
construction, no matter how long continued, would never justify such a conclusion as that.
(Endlich, Inter. Stats., sec. 361; Albright v. Bedford County, 106 Pa. St. 5S2.)
Pa. St. 582.) This is said upon the assumption that the statement concerning the payment of
the claims is true, as seems to be admitted, or at least not denied, by the attorney-general; but
no proof has been made of it, and we can hardly be expected to take judicial notice of the fact.
This would also seem to be a case where it is the duty of the controller to audit the claim
before the owner is entitled to a warrant (Gen. Stats. 1811; State v. Doran, 5 Nev. 399), but
the point has not been raised, and we have not considered it.
Writ refused.
____________
23 Nev. 92, 92 (1895) Roeder v. Stein
[No. 1446.]
JOHN ROEDER, Appellant, v. CHARLES STEIN,
Respondent.
FindingsWithin the IssuesAppropriation, Diversion, Wasteful User of WaterDamages.In an action to
restrain the wrongful diversion of water, and for damages for past diversion, where the complaint alleges
plaintiff's prior appropriation, defendant's diversion, and the amount of damages thereby occasioned, and
the answer consists simply of denials and an allegation of appropriation by defendant, a finding that
plaintiff's manner of using the water has been wasteful, and that all or a part of his damage has been
occasioned thereby, is within the issues.
Use of WaterPower of Court to Regulate Future Use.In such a case, where it appears that the plaintiff made
the first appropriation, by means of a certain ditch, of enough water to irrigate 125 acres of land, and that,
subject thereto, the defendant has made an appropriation, the court has the power to direct that the plaintiff
must use the water through that ditch, or by other means that will not waste more than an ordinary ditch.
IdemRights of First AppropriatorSurplus Water.The first appropriator is only entitled to the water to the
extent that he has use for it when economically and reasonably used. When he has that, he cannot prevent
others from making use of the surplus.
IdemObligations of First Appropriator as to Subsequent Acquired Rights.After others have acquired rights
to the use of the water of a stream, the first appropriator for irrigation purposes cannot, to their detriment,
change the method by which he conveys it to his land, so as to increase the waste that naturally occurs in
such conveyance.
Findings of FactConclusions of LawWhat Should Cover.Findings of fact and conclusions of law should
cover the issues in the case, and be made separate from the opinion of the judge.
AnswerWhen Verified, Should Not Deny True Allegations.A verified answer should not deny facts
unquestionably true. Parties doing so lay themselves liable to the penalties of the criminal law. (Syllabus by
Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Lincoln county; G. F. Talbot,
District Judge:
Action by John Roeder against Charles Stein. Findings for defendant, and from an order
refusing a new trial plaintiff appeals. Affirmed.
George S. Sawyer, for Appellant:
I. The decision is against law. First: The original findings of fact are entirely outside of the
issues made by the pleadings, and, consequently, no judgment or decree based upon them
could be upheld. (Marshall v. Golden Fleece, 16 Nev. 173-177; Ortega v. Cordero, 88 Cal.
225.) Second: The additional findings are contradictory of the original findings, and, taken
together, they cannot support a judgment or decree. (Authors v. Bryant, 22 Nev. 242.)
II. The court below erred in admitting or considering any testimony in relation to water
rights and ditches other than the particular one in controversy by the pleadings.
III. The decision is not supported by, but is contrary to, the evidence. It is uncontradicted
that the plaintiff used the water, the diversion of which is complained of, for more than five
years prior to the conversion, which is also uncontradicted. The plaintiff testifies that the
diversion damaged him much more than the ad damnum clause of the complaint charges, and
this is uncontradicted. The nearest the defendant comes to contradicting it is that plaintiff
might have decreased the damage by getting water somewhere else. Under these facts, as
shown by the testimony, the plaintiff should have had a decision in his favor, in all respects as
prayed for in his complaint. The additional findings are entirely unsupported by the evidence,
and are contrary to the theory of either plaintiff or defendant. They would virtually entitle
plaintiff to the judgment and decree prayed for, for it is not contended that enough water
comes down from the Hiko Hill to water 145 acres of land, to which, according to the
additional findings, plaintiff is entitled by virtue of priority of appropriation. (Smith v. Logan,
18 Nev. 154; Jewett v. Mahan, 20 Nev. 89; Reno S. Works, v. Stevenson, 20 Nev. 269.)
Thomas J.
Thomas J. Osborne, for Respondent:
I. The findings of fact are not outside of the case made and embraced within the issue, and
the cases of Marshall v. Golden Fleece M. Co., in 16 Nev., and Ortega v. Cordero, 88 Cal.,
cited by appellant, do not sustain this objection.
II. The principle of equitable estoppel invoked in the latter case applies here. The case at
bar was tried throughout on the theory that plaintiff relied on water from the Hiko spring,
conveyed through the Ferguson ditch, the waters of which were composed, in part only, of the
water escaping from the mill ditch, and this issue, as shown by the record on appeal, was
actually and intentionally tried by the introduction of pertinent evidence, and that appellant
here consciously participated and induced the respondent to believe the issue had been
properly made.
III. In the absence of any objection thereto, the court did not err in admitting testimony
relating to other water ditches than that mentioned in the complaint, and no objection being
made to such testimony at the trial, appellant cannot raise it for the first time on appeal. The
consideration of the testimony was necessary, touching as it did on matters essential to the
cause of action and naturally following the allegations of the complaint. (Jones v.
Goodenough, 7 Nev. 324; Estis v. Simpson, 13 Nev. 472; Longabaugh v. V. & T. R. R. Co., 9
Nev. 271; Reese v. Kinkead, 20 Nev. 65.)
The complaint alleges prior appropriation of the water of a certain stream for irrigation
purposes, defendant's diversion of it, and that plaintiff has been damaged thereby in the sum
of $500. The answer denies the appropriation or damage, and alleges that defendant has
appropriated, and is entitled to use, enough of the water to irrigate forty acres of land.
The court found that the plaintiff had, through the Ferguson ditch, made the first
appropriation to the extent of irrigating one hundred and twenty-five acres; that subsequent
thereto, and in 1890, the defendant had appropriated enough to irrigate forty acres; that since
1890, and during the time the defendant has been using the water, the plaintiff has allowed a
larger amount than that diverted by defendant to run to waste, by running it into a large
pond or lake, from which he used it, instead of running it directly through the ditch to his
land.
allowed a larger amount than that diverted by defendant to run to waste, by running it into a
large pond or lake, from which he used it, instead of running it directly through the ditch to
his land. As conclusion of law (apparently, for the conclusion of fact, of law, and the court's
opinion are all thrown together, so that it is difficult, if not impossible, to separate one from
the other) the court found that the plaintiff had the first right to enough of the water to irrigate
one hundred and twenty-five acres, said water to be conveyed to the plaintiff's land through
the Ferguson ditch, or by other ditches or means that will not waste more than an ordinary
ditch. It also found that plaintiff having failed to keep his ditch in repair, or to prevent the
water from spreading over defendant's meadow and running into the lake, is not entitled to
any damages, and that subject to plaintiff's rights, the defendant is entitled to enough water
to irrigate forty acres.
No decree has been entered, and the appeal is from an order refusing the plaintiff a new
trial.
The appellant claims that the findings are not within the issues made by the pleadings, but
as there has been no oral argument, and in his brief he has not specified the particular finding
or findings to which he objects, it is not easy to determine to just what he refers; but probably
it is to the finding that he has wasted the water, and to the direction that he must thereafter
use it in a particular manner, as there can be no possible question of the pertinency of the
other findings.
But, although there is nothing said in the pleadings upon this matter, it seems to us that the
question as to the waste of the water, both past and future, was clearly in the case. In the first
place, the complaint alleges $500 damages, and the plaintiff testified to more than that
amount of loss to his crops caused by the want of water. But if he had permitted a portion of
the water that did come to him to run to waste, he could not hold the defendant responsible
for the damage thereby occasioned. The defendant is only responsible for the damage
occasioned by his own acts. The defendant denied that his acts had caused the plaintiff any
damage whatever, and in support of that denial it was proper to him to show, if he could,
that a portion or all of the plaintiff's loss was the result of his own uneconomical use of
the water, and consequently it was proper for the court to find whether such was the
case.
proper to him to show, if he could, that a portion or all of the plaintiff's loss was the result of
his own uneconomical use of the water, and consequently it was proper for the court to find
whether such was the case.
The learned trial judge seems to have been of the opinion that if the plaintiff wasted as
much water as the defendant had diverted, that that would be a complete answer to the
plaintiff's claim for damages. While we cannot agree with that view and are of the opinion
that if defendant's acts had caused the plaintiff damage in addition to that occasioned by his
own negligence, the defendant would be responsible for that part, still the finding, as far as it
goes, is within the issues. It covers at least the loss upon forty acres of the plaintiff's land, as
the finding is that defendant irrigated that amount, and that plaintiff wasted more than the
amount of water used by defendant, and it may have been intended to cover all of plaintiff's
loss.
Possibly the appellant's counsel is of the belief that the plaintiff, having made the first
appropriation, is entitled to have the water come down to him to the extent of his
appropriation, whether he has use for it or not. If so, he is mistaken. Water is too precious in
this arid climate to permit its being unnecessarily wasted. The findings do not show how
much water there is in the stream altogether, or whether there is more than enough to irrigate
the plaintiff's one hundred and twenty-five acres. If there is not, then when he is irrigating that
amount he is entitled to the use of it all. The same is the case when he is irrigating less than
one hundred and twenty-five acres, if he needs it all for what he does irrigate. But whatever
he may be irrigating he is only entitled to the amount he needs, economically and reasonably
used, and when he has that, he cannot prevent others from using the surplus. (Barrows v. Fox,
98 Cal. 63; Natoma Water & M. Co. v. Hancock, 101 Cal. 32.)
Nor do we think that there was any error in requiring the plaintiff to use the water in any
particular manner hereafter. The evidence shows that the original method of the plaintiff's use
during the irrigation season was through the Ferguson ditch, and that this is the most direct
and economical method of conveying it to the land during that time. (During the winter time
the plaintiff runs the water into the lake, which he uses as a reservoir.
winter time the plaintiff runs the water into the lake, which he uses as a reservoir. This use is
not in question here.) Running it through the ditch continued to be the principal method of
using it up to 1890, when defendant made his appropriation. Since then the system has been
changed so that the principal method is first to turn it into the lake and then use it from
thence, and this is what the court finds has caused the unnecessary waste. As already
remarked, water is too precious to permit it being wasted. Conveying it through a ditch even
will always cause some loss, and if the distance is great, or the soil loose or porous, the loss
will be considerable. This, within any reasonable expense, is generally unavoidable. But,
however this may be, if the appropriation had been made before others acquired rights in the
stream, after that no change can be made to their detriment. The first appropriator must
continue to use it in at least as economical a manner as before, and cannot change the method
of use so as to materially increase the waste. Such a change may be forbidden, and parties
may be compelled to keep their flumes and ditches in good repair, so as to prevent any
unnecessary waste. (Barrows v. Fox, supra.) This is all that has been done here.
There are two matters of practice involved in this case to which we desire to call the
attention of the district courts and of the profession. The first is a failure to make distinct
findings of fact and conclusions of law, separate from the opinion of the judge as to what the
decision should be upon those facts. The writer of this opinion confesses that such was very
largely his own custom when upon the district bench, and that he then saw no objection to it,
but experience in the appellate court has demonstrated that serious objections do exist. It not
only adds considerably to the labor of examining cases upon appeal, which may be deemed a
minor consideration, but it increases the liability that the facts will not be correctly
understood, and hence result in a miscarriage of justice.
The trial judge usually decides upon some one point which he considers controlling, and
this point is the only one that will generally be fully covered in an opinion. Then if the
appellate court takes a different view of that point, as to the other facts the court is left
entirely in the dark, or it must pick them out from the evidence, which can never be as
well understood as when heard in court, as given and illustrated by the witnesses.
other facts the court is left entirely in the dark, or it must pick them out from the evidence,
which can never be as well understood as when heard in court, as given and illustrated by the
witnesses. The findings should cover all the issues in the case, and should be quite separate
from the opinion. We do not say this to discourage the writing of opinions, as we often find
them of great assistance, and it is always satisfactory to know just what view was taken of the
case by the trial court.
The other is a feature that we think deserves particular censure from the courtsthe broad
and unqualified denials in the answer that the plaintiff and his grantors had been the owners
or in possession of the lands described in the complaint, or had appropriated any part of the
water in controversy. It seems to have been admitted upon the trial that he did own the land,
and had been in the possession thereof for many years, and it was proven beyond question
that he had appropriated a large portion, if not all the water. The fact that the answer was
made upon information and belief does not help the matter any, for the evidence shows that
the defendant must have known all about it, and could have had no such information or
belief. If the attorney knew of the facts, he is even more culpable than the client, for drawing
and permitting him to swear to such an answer. The reason for providing for verified
pleadings is that facts that are true shall be admitted, and thereby the parties saved the
expense of proving them, and the court and all connected with the case the loss of time
occasioned by it being done. Such practice as this, although unfortunately too common, is
utterly subversive of the principles of the reformed procedure, and really subjects the parties
to the penalties of the criminal law. The defense here could have been as well made under a
truthful answer, as under one so largely false.
The order appealed from is affirmed.
____________
23 Nev. 99, 99 (1895) State v. Nye
[No. 1453.]
THE STATE OF NEVADA, ex rel. J. H. SUTHERLAND, Relator, v. HENRY A. NYE,
County Auditor of Storey County, Respondent.
Constitutional LawSupport of State Militia.The act of March 6, 1893, sec. 41 (Stats. 1893, p. 96), provided
that the expense of maintaining an armory for militia companies should be paid out of the general fund of
the several counties on presentation of the auditor's certificate to the treasurer that such expenses had been
allowed by the board of county commissioners. The act of March 18, 1895, sec. 12 (Stats. 1895, p. 109,),
expressly repeals this section of the act of 1893, and provides (Sec. 11) that all claims for such expenses
shall be audited by the board of military auditors, and paid out of the general fund in the state treasury upon
warrants drawn therefor by the state controller. Held, that the repealing act of 1895 is not in violation of
article XII, sec. 1, of the state constitution, which requires that the legislature shall provide for the
organization and disciplining of the militia of this state and for the safe keeping of the public arms, and is
valid, though it makes no appropriation for the payment of these expenses out of the state treasury, as
provided for in section 11 of the said act of 1895.
Legislative ActEnrolled BillConclusive Evidence of Passage of Act.An enrolled bill, signed by the
presiding officers of the two houses, and by the secretary of the senate and clerk of the assembly, is, when
approved by the governor, and filed in the office of the secretary of state, conclusive evidence of the
passage of the act as enrolled.
Original Proceeding. Application by the State, on the relation of J. H. Sutherland, for a
writ of mandate to compel Henry A. Nye, as Auditor of Storey county, to draw his warrant for
a certain claim allowed by the Board of County Commissioners. Denied.
J. Poujade, for Relator.
Langan & Knight, for Respondent.
The relator applies to this court for a writ of mandamus to require the respondent to audit
and allow and draw his warrant therefor, upon the county treasurer of Storey county, a certain
claim allowed by the board of county commissioners of said county in favor of Company A,
First Regiment, Nevada National Guard, in the sum of seventy-five dollars, for the rent of an
armory for said company for the month of April, 1S95.
23 Nev. 99, 100 (1895) State v. Nye
for the rent of an armory for said company for the month of April, 1895.
The application is made upon the theory and contention that section 41 of an act entitled
An act relating to the national guard and enrolled militia, approved March 6, 1893, is a
valid and subsisting part of said act. If this theory be correct, then the showing made by
relator's affidavit is sufficient under the provisions of said section to require the writ to issue.
Said section 41 provided that the expenses within a specified limit, of procuring and
maintaining an armory for the organized militia companies, should be paid out of the general
fund of the several counties in which such organizations are maintained, on presentation of
the auditor's certificate to the treasurer that such expense has been allowed by the board of
county commissioners, and that such payments should be allowed the treasurer in his
settlement with the controller and state treasurer. But section 11 of an act amendatory of and
supplementary to the above-entitled act of 1893, approved March 18, 1895, provides that all
claims for such expenses shall be audited and approved by the board of military auditors and
paid out of the general fund in the state treasury, upon warrants drawn therefor by the state
controller. Section 12 of the act of 1895 in terms repeals said section 41 of the act of 1893.
Counsel for respondent interposes a general demurrer to relator's affidavit. Counsel for
relator argues, in effect, that the act of 1895 is unconstitutional, because: (1) It repeals said
section 41 which requires these expenses to be paid, in the first instance, out of the county
treasury and makes no appropriation for their payment out of the funds in the state treasury as
provided for by section 11 of the act, and thus contravenes section 1, art. XII, of the
constitution, which provides: The legislature shall provide by law for organizing and
disciplining the militia of this state, for the effectual encouragement of volunteer corps, and
the safe keeping of the public arms. (2) The memoranda, made by the secretary of the senate
and clerk of the assembly, on the enrolled act, do not show that the different steps were taken
by the legislature which the constitution requires in the consideration and passage of
bills.
23 Nev. 99, 101 (1895) State v. Nye
taken by the legislature which the constitution requires in the consideration and passage of
bills.
In answer to the first of the above grounds of objection, it may be simply said, that there is
certainly nothing in the constitution to prohibit the legislature from taking the matter of
auditing and paying these claims for rent of armories out of the hands of said county officers
and placing the same in the hands of the board of military auditors and the proper state
officers.
The legislature having failed to make the necessary appropriation for the payment of the
rent of armories the claimant will have to await the action of the legislative department, as all
others have to do who have claims against the state for the payment of which no
appropriation has been made, or for which the appropriation has been exhausted. The courts
are powerless to furnish relief in such cases, however much the delay in payment may cause
inconvenience or work a hardship to the claimants.
The second ground of objection is equally untenable. The memoranda referred to are
immaterial. They are not evidence of the existence or non-existence of any matter material to
be considered in this case. The constitution makes the signing of an enrolled bill by the
presiding officers of the two houses and by the secretary of the senate and clerk of the
assembly conclusive evidence of its passage by the legislature, and when passed and
approved by the governor and filed in the office of the secretary of state, it constitutes a
record which is conclusive evidence of the passage of the act as enrolled, and in accordance
with the rules prescribed by the constitution relating to legislative procedure.
The rule, that in testing the validity of a statute the courts will not look beyond the statute
roll, solemnly attested in accordance with the provisions of the constitution, is well settled in
this State by the following cases: State ex rel. George v. Swift, 10 Nev. 176; State ex rel.
Cardwell, 18 Nev. 34.
In determining that said section 41 has been repealed, and that the respondent has no
authority to audit the claim in question or to draw his warrant therefor, we are not to be
understood as recognizing that that section would be valid if it had not been repealed, for it is
a grave question whether its provisions do not conflict with two plain provisions of the
constitution.
23 Nev. 99, 102 (1895) State v. Nye
its provisions do not conflict with two plain provisions of the constitution. But as it is not
necessary to pass upon the question of their constitutionality in this case, we do not do so.
We are of opinion that the demurrer to the affidavit must be sustained, and the writ of
mandate prayed for denied.
It is so ordered.
____________
23 Nev. 103, 103 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JANUARY TERM, 1896.
____________
23 Nev. 103, 103 (1896) State v. Vaughan
[No. 1447.]
STATE OF NEVADA, Respondent, v. ALFRED
VAUGHAN, Appellant.
Criminal LawJuror Excused After Admission of Evidence.After a jury has been sworn, and evidence
admitted in a capital case, the court may, in its discretion, excuse a juror against defendant's objection, on
proof that he is disqualified, the fact of his disqualification having come to the knowledge of the
prosecution during the trial.
IdemJuryJuror Discharged After Evidence IntroducedError to Retain Balance Without Allowing
Defendant to Examine.When in a capital case a juror, because disqualified, is excused by the court
against defendant's objection, after evidence has been admitted, it is error to accept the other jurors without
first discharging them and giving the defendant the privilege asked for of re-examining them as to their
then state of mind before being re-sworn to try the case with the new juror.
Appeal from the District Court of the State of Nevada, Lander county; Charles E. Mack,
District Judge:
Alfred Vaughan was convicted of murder, and appeals. Reversed.
James F. Dennis and J. H. MacMillan, for Appellant:
I. The statement of the district attorney, in reference to the juror Flint, was contrary to law,
as there was an assumption of the guilt of the prisoner while stating a public offense against a
juror duly qualified and sworn to try the issues between the state and prisoner, which should
not have been permitted at that time in the trial of so important a case. (Grosse v. State, 11
Tex. App. 377-399.)
II. No challenge of the juror was made, and there was nothing before the court; no issue of
law or fact when witnesses were put upon the stand, and the testimony of the witnesses was
prejudicial and irrelevant to the issues between the state and appellant. (People v. Hamilton,
62 Cal. 383; People v. Reynolds, 16 Cal. 129.)
III. Could the court look into the juror's mind and say that it had not changed since the
declaration sworn to by witnesses Kassel and Moss? Was there anything to justify the court,
in the presence of a jury it had then decided to retain for the future trial of the accused, in
saying that the juror had perjured himself in order, if possible, to acquit the defendant?
IV. Take the entire proceedings against the juror Flint, his examination, the statement of
counsel in reference to him, the testimony of the witnesses against him, and it fails to show
any necessity for his discharge from the jury. He speaks of having had a different state of
mind when on his voir dire, but says he had got rid of it. The testimony and proceedings as to
his past declaration do not prove or tend to prove that his mind was not, at that time, equally
balanced between the state and defendant. There was not that imperative necessity for his
discharge that the law contemplates in such cases. (Rice on Evidence, vol. 4, sec. 616;
O'Brien v. Commonwealth, 9 Bush. 333; Pizana v. State, 20 Tex. Ct. App. 139.)
V. The discharge of juror Flint, against the objection of the defendant, terminated the
legal existence of the jury sworn to try the issues between the state and accused, a jury that
had heard the opening statement of counsel for the state and the testimony of all the witnesses
against the prisoner.
VI. What becomes of the constitutional guarantee of the right of trial by jury?
right of trial by jury? Can it be for a moment supposed that eleven men, who heard all the
state's testimony, were indifferent or impartial at the beginning of the trial which resulted in
the conviction of appellant, or will it be assumed that the instruction of the trial judge purged
and rendered the minds of the eleven jurors a blank as to what had transpired on the previous
presentation of the state's case. If these eleven jurors attended to their duty on the first
presentation of the case, they could not have been impartial at the beginning of the trial.
(Commonwealth v. Hussey, 13 Mass. 221; People v. Allen, 43 N. Y. 33; State v. McClear, 11
Nev. 50.)
VII. The trial court refused to allow defendant to examine the eleven old jurors as to their
state of mind after the discharge of the juror Flint, or the right to exercise any peremptory
challenges to the reconstructed jury or the new part of it.
VIII. The only safe way to prevent an injustice and to secure an impartial jury, such as is
guaranteed to us by the constitution of our country, is to discharge the entire twelve men,
under the circumstances of this case, and empanel a new jury, allowing to the defendant his
statutory right of challenge, peremptory and for cause. (State v. Allen, 46 Conn. 549.)
Robt. M. Beatty, Attorney-General, W. D. Jones, District Attorney, and D. S. Truman, for
Respondent:
I. The court was fully authorized to draw another juror to take Flint's place. (Gen. Stats.
4262; State v. Pritchard, 16 Nev. 101; State v. Vaughan, 22 Nev. 285.)
II. The eleven jurors had been passed by both the state and the defendant, and had been
sworn. No attempt was made to show that any one of them had been disqualified; the fact that
Flint had been shown to be disqualified raised no presumption that any of the other eleven
jurors were disqualified. No one had a right to examine any of those eleven jurors at that
stage of the trial without showing good cause, and no cause being shown, it was not error to
refuse the request. (Crim. Prac. Act, sec. 334; State v. Marks, 15 Nev. 33; State v. Pritchard,
16 Nev. 101.)
III. The eleven jurors had been sworn, and this court long ago, decided in State v.
Anderson, 4 Nev. 65
long ago, decided in State v. Anderson, 4 Nev. 65, that: The allowance of a peremptory
challenge to a juror who has been accepted and sworn is not a matter of right and a refusal on
the part of the court to allow it is not error. (People v. Reynolds, 16 Cal. 128; State v.
Hasledahl, 52 N. W. Rep. 315.)
IV. No cause was shown, or attempted to be shown, why any one or all of the eleven
jurors should be peremptorily challenged, and unless good cause be shown, says our statute
(Sec. 334, Crim. Prac. Act), it is not error to refuse it. (State v. Marks, 15 Nev. 33; State v.
Pritchard, 16 Nev. 101.)
V. It was unavoidable for the proof as to Flint's disqualification to be made to the court in
Flint's presence and in the presence of the other eleven jurors. At that time Flint was as much
a part of the jury as any of the other eleven, and there was no jury without him and each and
all of the other eleven jurors; they could not legally separate (Sec. 340, Crim. Prac. Act), until
the urgent necessity arose, was proven, and found by the court. (State v. Pritchard, 16 Nev.
101.)
Respondent was convicted of murder of the first degree.
At the trial, after a jury had been empaneled and sworn and the witnesses examined, the
district attorney called the attention of the court to the fact that one of the jurors was
disqualified and asked leave to present testimony in support of the charge. Upon permission
given, witnesses were examined whose testimony tended to show that A. A. Flint, the juror
against whom the investigation was directed, had said several months prior that the defendant
was guilty; that he had conscientious scruples against capital punishment and would never
vote for a conviction of murder of the first degree were he one of the jury. The court excused
him, another was substituted, the witnesses were re-examined, a verdict of murder of the first
degree returned, and judgment entered thereon. Various exceptions were taken in behalf of
the appellant to the rulings of the court in this particular.
First, as to the discharge of juror Flint.
Lord Coke lays down the rule that a jury sworn and charged in case of life or member
cannot be discharged by the court or any other, but they ought to give a verdict."
charged in case of life or member cannot be discharged by the court or any other, but they
ought to give a verdict. (1 Inst. 227b.) Following Coke, Hawkins, in his Pleas of the Crown,
2d vol. 568, says that no juror can be challenged either by the king or prisoner without
consent after he hath been sworn, * * * unless it be for some cause which happened since he
was sworn.
In Wharton's Case (Yelverton, 23) one of the jurors that had been accepted and sworn was
challenged for a cause that was in esse when he was sworn, but unknown at the time to the
queen's counsel. The challenge was denied.
But in the case of the two Kinlocks (Foster, 22) the power of the court to discharge jurors
underwent careful examination, and it was decided that the general rule as laid down by Lord
Coke had no authority to warrant it and could not be universally binding. In that case it was
determined that the court had power to withdraw a juror at the request of the prisoners for the
purpose of imparting to them a defense which they could not otherwise have taken.
The decisions in this country sustain the position that a juror may be excused when his
detention upon the jury would defeat the ends of public justice.
In U. S. v. Morris, 1 Curtis, 23, it was decided that after witnesses had been examined the
prosecuting officer could, in the discretion of the court, examine witnesses upon the question
of the bias of a juror.
In discussing the subject, after stating the common law rule, Judge Curtis said: But it by
no means follows that it is not in the power of the court, at the suggestion of one of the
parties, or upon its own motion, to interpose and withdraw from the panel a juror utterly unfit,
in the apprehension of every honest man, to remain there. Suppose a prisoner on trial for his
life should inform the court that a juror had been bribed to convict himthat the fact was
unknown to him when the juror was sworn and that he had just obtained plenary evidence of
it, which he was ready to lay before the court, is the court compelled to go on with the trial?
Suppose the judge, during the trial, obtains, by accident, personal knowledge that one of the
jurors is determined to acquit or convict without any regard to the law or the evidence, is he
bound to hold his peace?
dence, is he bound to hold his peace? In my judgment such a doctrine would be as wide of the
common law as it would be of common sense and common honesty. The truth is that this
rule, like a great many other rules, is for the orderly conduct of business. There must be some
prescribed order for the parties to make their challenges, as well as to do almost everything
else in the course of a trial. As matter of right, neither party can deviate from this order. And
it is the duty of the court to enforce these rules, which are for the general good, even if they
occasion inconvenience and loss in particular cases. But there goes along with all of them the
great principle that, being designated to promote the ends of justice, they shall not be used
utterly to subvert and defeat it; being intended as a fence against disorder, they shall not be
turned into a snare; they do not tie the hands of the court, so that when, in the sound
discretion of the court, the public justice plainly requires its interposition, it may not
interpose; and it would be as inconsistent with authority as with the great interests of the
community to hold the court restrained.
A very eminent English judge has treated this rule concerning challenges just as I believe
it should be treated. Chief Justice Abbot says: I have no doubt that if, from inadvertence, or
any other cause, the prisoner or his counsel should have omitted to make the challenge at the
proper moment, the strictness of the rule which confines him to make the challenge before the
officer begins to administer the oath, would not be insisted on by the attorney-general, or, if
insisted on by him, would not be allowed by the court.' (The Derby Case, Joy on Confessions,
etc., 220.) That is, like other rules of procedure in trials, it is in the power of the court to
dispense with it when justice requires.
In U. S. v. Coolidge, 2 Gall. 363, Lee, an indispensable witness to the government, refused
to be sworn. Judge Story said: The question is simply this. A party is on trial before a jury,
and a circumstance occurs, which will occasion a total failure of justice if the trial proceed;
have the court, in such an emergency, power to withdraw a juror? It has been stated from the
bar that, in capital cases, the court have not this power; but in a case in Foster's Crown Law,
and in several other cases, it has been held that they have.
and in several other cases, it has been held that they have. In misdemeanors, there is certainly
a larger discretion, and until the cases just mentioned, capital trials were generally supposed
to be excepted. It is now held, that the discretion exists in all cases, but is to be exercised only
in very extraordinary and striking circumstances. Were it otherwise the most unreasonable
consequences would follow. Suppose, that in the course of the trial the accused should be
reduced to such a situation as to be totally incapable of vindicating himselfshall the trial
proceed, and he be condemned? Suppose a juryman taken suddenly ill, and incapable of
attending to the cause; shall the prisoner be acquitted? Suppose that this were a capital case,
and that, in the course of the investigation, it had clearly appeared, that on Lee's testimony
depended a conviction or an acquittal; would it be reasonable that the cause should proceed?
Lee may, perhaps, during the term, be willing to testify. Under these circumstances, I am of
opinion that the government is not bound to proceed, but that the case be suspended until the
close of the term, that we may see whether the witness will not consent to an examination.
In State v. Allen, 46 Conn. 531, upon the trial, after witnesses had been examined, the
court heard evidence touching the disqualification of a juror, who had before being sworn
expressed the opinion that defendant was guilty. The disqualification was proven, the juror
excused, and the jury discharged.
In State v. Bell, 81 N. C. 591, it was held that the duty of courts to guard the
administration of justice against fraudulent practices was an exception to the rule that a jury
sworn in a capital case cannot be discharged without the prisoner's consent until they have
given a verdict. So when a juror had fraudulently procured himself to be selected for the
purpose of acquitting the prisoner the juror was properly excused.
In People v. Ollcott, 2 Johns. Cases, 301, Justice Kent stated his conclusions as follows: I
conclude, then, that as no general rule or decision that I have met with exists to the contrary
in a case of misdemeanor, and as the rule, even in capital cases, abounds with exceptions, and
is even questioned, if not denied, by the most respectable authority, that of nine of the judges
of England, it must from the reason and necessity of the thing belong to the court, on
trials for misdemeanors, to discharge the jury whenever the circumstances of the case
render such interference essential to the furtherance of justice.
of nine of the judges of England, it must from the reason and necessity of the thing belong to
the court, on trials for misdemeanors, to discharge the jury whenever the circumstances of the
case render such interference essential to the furtherance of justice. It is not for me here to say
whether the same power exists in the same degree (for to a certain degree it must inevitably
exist) on trials for capital crimes, because such a case is not the one before the court; and I
choose to confine my opinion strictly to the facts before me. With respect to misdemeanors,
we may, with perfect safety and propriety, adopt the language of Sir M. Foster (p. 29), which
he, however, applies even to capital crimes, that it is impossible to fix upon any single rule
which can be made to govern the infinite variety of cases that may come under the general
question touching the power of the court to discharge juries sworn and charged in criminal
cases.' If the court are satisfied that the jury have made long and unavailing efforts to agree;
that they are so far exhausted as to be incapable of further discussion and deliberation, this
becomes a case of necessity, and requires an interference. All the authorities admit that when
any juror becomes mentally disabled by sickness or intoxication, it is proper to discharge the
jury, and whether the mental inability be produced by sickness, fatigue or incurable prejudice,
the application of the principle must be the same. So it is admitted to be proper to discharge
the jury when there is good reason to conclude the witnesses are kept away, or the jury
tampered with, by means of the parties. Every question of this kind must rest with the court,
under all the particular or peculiar circumstances of the case. There is no alternative; either
the court must determine when it is requisite to discharge, or the rule must be inflexible that,
after the jury are once sworn and charged, no other jury can, in any event, be sworn and
charged in the same cause. The moment cases of necessity are admitted to form exceptions,
that moment a door is opened to the discretion of the court to judge of that necessity, and to
determine what combination of circumstances will create one.
In the inquiry touching the disqualification of the juror three witnesses were examined.
Two of them, Kassell and Moss, swore, among other things, that Flint had said some
months previous, in their presence, that he was opposed to capital punishment; and
Dunham, the third witness, said that he had often heard Flint say that the defendant was
guilty.
Moss, swore, among other things, that Flint had said some months previous, in their presence,
that he was opposed to capital punishment; and Dunham, the third witness, said that he had
often heard Flint say that the defendant was guilty.
The court excuse [excused] the juror for two reasons: First, that he had formed and
expressed an opinion that the defendant was guilty, and, second, that he was opposed to
capital punishment.
For either of these reasons the juror may have been excused. The subject was within the
sound discretion of the district court, and we cannot interfere with its exercise except in cases
of its abuse.
SecondWhether it was correct to empanel another juror in the place of Flint, or to
discharge the jury:
In People v. Damon, 13 Wend. 351, after a juror had been sworn in chief and taken his
seat, it was discovered that he was incompetent to serve. He was excused and another juror
substituted. In the opinion of the court, Chief Justice Savage said: I apprehend no authority
can be necessary to sustain the proposition that the court may and should in its discretion set
aside all the persons who are incompetent jurors at any time before evidence is given. The
inference to be drawn from this language is that, after evidence is given, no substitution
should be made. At the common law, if, during the trial, an incompetent juror was
discovered, the whole jury was discharged.
The rule has not been changed by the legislation of this state. It is as binding upon courts
as statutes adopted by the legislature.
Adhering to it, I conclude that a mistrial took place when Flint was excused. The
substitution of another juror in his stead was contrary to all precedent. The case illustrates the
evil of the course pursued. The jury had been occupied for upwards of three days in hearing
the testimony on the part of the prosecution when Flint was excused. Under these
circumstances it is not presumable that the jury was indifferent.
Defendant was entitled to a legal and impartial jury, and all the substantial requirements
of law should have been observed in its empanelment.
all the substantial requirements of law should have been observed in its empanelment.
The judgment should be reversed and a new trial granted, and it is so ordered.
Bonnifield, J., concurring:
In view of the character of the charges preferred against juror Flint, and of the examination
and proceedings had thereon and in connection therewith, all being made and had in the
presence of the jury and against the objection of the defendant, the vital question, in my
opinion, in this case is: Was the court vested with legal discretion to retain the eleven jurors
on the panel against defendant's objection? Or, in other words, was not fatal error committed
in empaneling juror Savage in place of juror Flint, who had been discharged, instead of
discharging the eleven jurors and empaneling a new jury?
In the first place, it was not necessary to have preferred said charges, or to have held said
examination or proceedings in the presence of said eleven jurors, but I am of opinion that it
was improper to have done so. It appears to me that it would have been proper and the right
course to have pursued for the court to have put said jurors in charge of the sheriff to be
retired from the court room, and the juror Flint retained during the examination of the charges
made against him; then it might have reasonably been said that the remaining jurors could not
have been prejudiced by anything which had occurred in the matter of the impeachment of
Flint; that, therefore, no error was committed to defendant's prejudice thereby, and, upon the
authority of the Pritchard case, the action of the court might be sustained, if, at all.
It is provided by statute, and is as binding on the courts as any other statutory provision,
that: The common law of England, so far as it is not repugnant to, or in conflict with the
constitution and laws of the United States, or the constitution and laws of this state, shall be
the rule of decision in all courts of this state. (General Stats. 3021.) And it seems to be
settled by the common law writers and by nearly, if not quite, all of the decided cases on the
subject, that under the common law, in all cases where a juror is discharged during the
progress of the trial from any cause of necessity, the balance of the jurors must be
discharged, or rather the discharge of the one by the court operates to the discharge of all
the balance, but the balance may be immediately recalled into the jury-box and their
examination be entered into as originally upon their voir dire, if either party so desires,
and the respective parties may have their challenges over.
that under the common law, in all cases where a juror is discharged during the progress of the
trial from any cause of necessity, the balance of the jurors must be discharged, or rather the
discharge of the one by the court operates to the discharge of all the balance, but the balance
may be immediately recalled into the jury-box and their examination be entered into as
originally upon their voir dire, if either party so desires, and the respective parties may have
their challenges over. By our statute the common law rule is abrogated to this extent and no
further, that is: If before the conclusion of the trial a juror becomes sick, so as to be unable
to perform his duty, the court may order him to be discharged. In that case a new juror may be
sworn and the trial begun anew, or the jury may be discharged and a new jury then or
afterwards empaneled. (General Stats. 4262.)
Only in the class of cases above named does our statute give the court discretion to either
empanel a new juror or to discharge the whole jury and empanel a new one at its option. In
the case at bar the juror was not discharged on account of sickness, and hence the above
statute is not applicable to it, and we have no other statute on the subject, but we have the
common law, with its mandate that in such cases the jury shall be discharged. At this point in
the procedure we come to the parting of the ways between the common law and the statute.
The statute plainly points out the course to be pursued in empaneling a new jury, which, of
course, must be followed, unless the parties consent to proceed under the common law rule of
immediately calling the remaining jurors back into the box for re-examination and challenges;
so, if there be any authority for retaining the eleven jurors, as was done in this case, we must
look elsewhere for it besides the statute or the common law.
No judicial authority has been cited in point, and in my opinion none can be found to
sustain the respondent's contention on the question under consideration, except in those states
where the statute authorizes such practice as was adopted by the trial court in this case. State
v. Pritchard, 16 Nev. 101, and People v. Stone, 2 Scam. (Ills.) 326, have been cited and seem
to be relied on as to such authority. But I am of opinion that they cannot be properly so
considered.
sidered. In the Pritchard case, upon the question whether the court below erred in empaneling
another juror in the place of the juror who had been discharged, instead of discharging the
remaining eleven jurors and empaneling a new jury, the supreme court said: In considering
the facts of this case, in connection with the authorities to which our attention has been
called, we have arrived at the conclusion that this action of the court was correct. The
remaining eleven jurors were competent. No objection was urged against them. They had
been selected, agreed upon and accepted in the mode provided by law. No testimony had been
offered. It seems to us that the discharge of an incompetent juror creates no necessity for the
discharge of the eleven remaining competent jurors.
Now, the facts in that case were these: The jury were empaneled and sworn to try the case;
thereupon the court took a recess till next morning. Upon the reconvening of the court
counsel for the defendant was permitted by the court to ask the jurors the following questions,
to wit: Since you were examined by me before, touching your qualifications to serve as
jurors, has anything happened or occurred to your recollections to render you improper jurors
to your knowledge? Thereupon one of the jurors informed the court and counsel, in
substance, that there had been some misapprehension or some mistake made in his
examination as to his qualifications as a juror, and stated that he could not find a verdict of
guilty on a charge of murder upon circumstantial evidence. Upon this statement and ground
he was discharged. It is apparent that in that proceeding nothing occurred so that it could
reasonably be said that it might have prejudiced the balance of the jurors against the
defendant. Indeed, it was admitted on the record by stipulation of the parties and confirmed
by the court: That neither the plaintiff, the defendant nor said juror had been guilty of any
intentional fraud or deception in procuring the swearing of said juror to try the case, except in
so far as the answers made by said juror on his voir dire may operate as such fraud.
But in the present case the record shows a materially different state of facts. Here the juror
was charged, in effect, with deception, fraud and the crime of perjury, with the view, on
his part, of getting on the jury to favor and acquit the defendant, and the court found, in
effect, that the charge was true.
with deception, fraud and the crime of perjury, with the view, on his part, of getting on the
jury to favor and acquit the defendant, and the court found, in effect, that the charge was true.
Here, also, by the strongest implication, the defendant and his family were charged with being
accomplices in the crime of said juror, and this imputation was left resting on them by the
district attorney and the court, instead of exonerating them therefrom.
During the progress of the examination of witnesses in support of these charges, the
district attorney put defendant's attorney on the stand as a witness, evidently for no other
purpose than to connect the defense with the alleged fraud and perfidy of said juror. He was
subjected to quite a lengthy examination, and all the questions put to him by the district
attorney appear to have been put with said view. The witness having stated that he had
received an intimation the evening before that there was one juror on the panel favorable to
the defendant, juror Flint asked him from whom he had received this intimation; the witness
declined to answer, on the ground that it was privileged. The district attorney then said to,
and asked, the witness as follows: Let us find out whether it is so or not: Was it from your
client, his father, or brother, or mother? The witness declined to answer. The court, in
passing upon the question of discharging Flint, expressed the opinion that the juror had
deceived both of the counsel and the court. This relieved defendant's attorney from all blame
in the matter, so far as the opinion of the court was concerned, but it did not remove the
imputation cast upon the defendant and his family of complicity.
After Flint had been discharged, and in explanation of the grounds of his discharge, the
court remarked in the presence of the eleven jurors, to wit: * * * I became convinced that he
came upon the jury to aid and assist the defendant in this case, for what inducement I do not
know. The remaining jurors might reasonably have inferred from that remark that, in the
opinion of the court, the juror had inducement, and that such inducement moved from the
defendant or from some one in his behalf.
Counsel for defendant asked that the remaining eleven jurors be discharged on the
ground, among others, "of the evidence adduced before them, tending to disqualify them,
and tending to bias and prejudice them against the defendant," and he asked "to be
allowed to examine them on their voir dire as to their qualifications," and asked to be
allowed a peremptory challenge to the new juror Savage.
jurors be discharged on the ground, among others, of the evidence adduced before them,
tending to disqualify them, and tending to bias and prejudice them against the defendant, and
he asked to be allowed to examine them on their voir dire as to their qualifications, and
asked to be allowed a peremptory challenge to the new juror Savage. The court replied: If I
thought your challenge was taken in good faith I should be induced to set aside them all.
By counselI assure your honor it is in good faith.
By the courtI will pass upon that; the law gives you eight; I am impressed with the fact
that you simply desire to obtain from the court that [which] is erroneous. The challenge is not
taken in good faith, and it will be denied. You may have the benefit of an exception.
By counselI will take it.
It seems to me that the above remarks impeaching the sincerity of counsel cast discredit on
the whole defense of the defendant, and would have a tendency to create fatal prejudice in the
minds of said jurors against the defendant.
The charges having been made and the examination thereof had before the jury against the
defendant's objection, and the above remarks made in their presence, can it be reasonably said
that the eleven jurors were not thereby prejudiced against the defendant and the theory of the
defense, and hence remained competent jurors? Under these facts and circumstances was the
court clothed with a discretion to retain said eleven jurors on the panel against the objection
of the defendant, and without giving him the privilege asked for of examining them as to the
state of their minds? Certainly the ruling in the Pritchard case does not go so far as to
sanction such practice or authorize such discretion as were adopted and exercised in this case
under the state of facts existing here, nor was it intended by the court that the rule adopted in
that case should have such effect as is clearly manifested by the language used in the above
quotation from the opinion of the court. It is equally clear to my mind that the case of People
v. Stone, supra, does not support the action of the court in the present case. In that case a juror
was discharged on the ground of alienage, and a new juror empaneled, and like the Pritchard
case there was nothing occurring in the proceedings relative to the juror discharged that
could reasonably have tended to prejudice the remaining jurors against the defendant or
his defense, so far as we can learn from the opinion there rendered.
ing occurring in the proceedings relative to the juror discharged that could reasonably have
tended to prejudice the remaining jurors against the defendant or his defense, so far as we can
learn from the opinion there rendered. The court held in that case, as in the Pritchard case,
that the discharge of the one juror did not necessitate the discharge of the eleven, for the
reason that no injustice had been done, that the rights of the prisoner had not been infringed,
and no law violated. The court then says: If a doubt could, however, remain on this point,
that is, on the point of empaneling a new juror, instead of a new jury, it is definitely and
conclusively settled by the statute relative to jurors. So it seems that the decision was finally
based on the statutes of Illinois, which give the courts discretion to fill one or more vacancies
on the jury, where one or more jurors are discharged from necessity, and to retain the other
jurors on the panel. But we have no such statute.
It seems to me further, that if, from what the court said in that case can be construed as
basing the decision on general principles, and not solely on the statute, it was done so on
the ground of the peculiar facts of that case, and is not authority in any other case containing
materially different facts. The court said: The case is sui generis. * * * We have been
referred to authorities which are admitted to be the rule in the British courts, and if the facts
in this case were of the nature which marked the cases that have been decided there, and in
like cases in our own courts, we should have no difficulty in coming to the same results on
the present occasion.
Can it be said no injustice was done in the present case, no law violated, no rights
infringed, and that the eleven jurors were not prejudiced on account of these proceedings had
in their presence on matters outside of the proper investigation of the charges contained in the
indictment? I am of opinion that we are not warranted in entertaining such presumption.
Can it be held with any reasonable plausibility that the action of the court, in the matters
under consideration, should be sustained because it is not shown here that these proceedings
prejudiced the eleven jurors against the defense when the only means by which defendant
might or could have shown it was denied him in the court below?
have shown it was denied him in the court below? This question is susceptible of but one
answer, and that in the negative. It is clear to my mind that to so hold would be denying the
accused in such cases the right to protect himself against such prejudice, however great in
degree it might be, created by such procedure.
It seems to me that it cannot reasonably be presumed that these charges against the
defendant, and the proceedings had, and imputations made of complicity of the defendant and
his family in procuring Flint to be placed on the jury through his alleged deception, fraud and
perjury, did not prejudice the eleven jurors against the defendant and the theory of his
defense, so as to render them incompetent.
I am of opinion that nothing scarcely is more potent to create such prejudice against a party
than arousing suspicion that such party has packed, or attempted to pack, a jury by which he
is to be tried, and that but few men are capable of resisting such prejudice and to rise above
its influence, in their deliberations as jurors.
Further, it is evident, to my mind, that to affirm the judgment of the trial court, in
consideration of the facts developed in this case, would be establishing a rule in this state
without law and without precedent, and which would operate, in many cases, in the practical
denial of the right of trial by jurysuch trial as is contemplated by the statute, the common
law and the constitution. It seems to me that such rule would be unwarrantable judicial
legislation, instead of proper adjudication.
In what has been said above, it is not intended as a criticism of any matters occuring
[occurring] on the impeachment of said juror Flint, or on the trial thereof, or of any remarks
made by the court in connection therewith, except in so far as the same occurred in the
presence of the eleven jurors.
In consideration of the facts above given, I am of opinion that the court was not clothed
with legal discretion to retain said eleven jurors on the panel without the consent of the
defendant, and against his objection, and without giving him the privilege asked for of
examining the said jurors as to the state of their minds before being sworn to try the case with
the new juror. Upon this ground, and for the reasons herein above given, I concur in
reversing the judgment and granting a new trial.
inabove given, I concur in reversing the judgment and granting a new trial.
Bigelow, C. J., concurring:
I am of the opinion that the discharge of the juror Flint was a matter in the discretion of the
court. He had sworn, upon voir dire, that he had not formed or expressed any opinion as to
the defendant's guilt or innocence, and that he had no conscientious scruples against the
infliction of capital punishment. But upon the examination held after the district attorney
moved to dismiss him from the panel it appeared quite clearly that he had several times
expressed the opinion that defendant was guilty, but that, if he were on the jury, he would not
vote to hang him, and when pressed for a reason why he would not had said that he was
opposed to capital punishment. It may be that these remarks were simply idle talk, and had
been forgotten by the juror, but if such were not the case, and especially if he did have such
conscientious scruples, then certainly he was not a fit juror.
The trial judge was in a better position to determine this fact than we are, and his
conclusion thereon is not unsupported by the evidence. It follows, the same as in any other
case where a point has to be determined upon conflicting evidence, that the discretion of the
trial court cannot be overruled upon appeal. As the juror was properly discharged, the
evidence was insufficient to support the plea of former jeopardy thereafter entered by
defendant.
I am also of the opinion that while perhaps the court did not commit reversible error in
refusing to discharge the entire jury, it should either have done so or have given the defendant
his challenges over again, as demanded by him. This would have been substantially in
accordance with the rule at common law, which, in the absence of a statute, must be our
guide.
State v. Pritchard, 16 Nev. 101, relied upon as justifying the action taken below, does not
cover these questions, because there no testimony had been taken, which is particularly
referred to as one of the grounds upon which the decision is placed, and because no question
was raised concerning the defendant's renewed right to his challenges, which were always
given him at common law.
always given him at common law. If that rule is unsatisfactory, and doubtless it can be
improved upon, it should be changed by statute, as has been done in many states.
I also agree with much that is said by Justice Bonnifield concerning the proceedings taken
against juror Flint, and which could not well have failed to have a prejudicial effect upon the
minds of the jurors retained in the case.
For these reasons I concur in the judgment.
____________
[No. 1458.]
THE STATE OF NEVADA, ex rel. H. C. CUTTING, Superintendent of Public Instruction,
Relator, v. C. A. LaGRAVE, State Controller, Respondent.
Superintendent of Public InstructionSalary of, For Ex Officio OfficesAct Fixing Salary for Several Offices
in Solido, Inoperative When Part of Offices Are Taken Away.Statutes of 1891, p. 104, provide that the
superintendent of public instruction shall receive a certain compensation as ex officio clerk of the supreme
court, ex officio state librarian, ex officio curator of the state museum, and secretary of the board of
directors of the orphans' home, in addition to his salary as superintendent. By Stats. 1893, p. 32, the act
making the superintendent ex officio librarian and clerk was repealed, and these positions were attached to
the office of secretary of state, but nothing was said in regard to the superintendent's salary as curator and
secretary. Held, that the superintendent was not entitled to receive any of the compensation attaching in
solido to the four ex officio offices.
IdemEffect of Appropriation by Legislature of Supposed Salary.That the legislature, in making the
appropriation for the salary of the superintendent for 1895 and 1896, appropriated a sum equal to his salary
as superintendent and that attached to his former ex officio offices, is immaterial. (Bonnifield, J.,
concurring upon the ground that the general appropriation bill of 1895, in so far as it appropriates more
than $1,000 annually out of the school fund, never became operative.)
Original Proceeding. Application by the State, on the relation of H. C. Cutting, as
Superintendent of Public Instruction and ex officio Curator of the State Museum, against C.
A. LaGrave, State Controller, for a writ of mandamus. Denied.
H. C. Cutting, in pro. per., for Relator:
I. What is the salary of the superintendent of public instruction, with his ex officio offices,
under the present statutes? This is a question of statutory construction. (Sutherland, Statutory
Construction, p. 290, sec. 219.) The intention of an act will prevail over the literal sense of
its terms. (State v. Kruttschnitt, 4 Nev. 178.)
II. The legislature of 1893 must surely have construed this salary act as attaching a salary
of $2,400 to the office of superintendent of public instruction, for when, by the act approved
February 20, 1893 (Stats. 1893, 32), they took from the superintendent the ex officio duties of
clerk of the supreme court and state librarian and gave them to the secretary of state, they said
nothing about a change in salary for either officer. If these ex officio duties added nothing to
the salary of secretary of state, why should they take anything from the superintendent of
public instruction? This arrangement of these ex officio duties was made two years before
either law was to go into effect, and the legislature of 1895 construed this salary act just at the
time that it took effect by making the following appropriations in the general appropriation
act (Stats. 1895, 69-70): Sec. 6. For salary of secretary of state and ex officio clerk of the
supreme court and ex officio state librarian, forty-eight hundred ($4800) dollars. Sec. 20.
For salary of superintendent of public instruction and ex officio curator of the state museum,
forty-eight hundred ($4800) dollars.
III. The contemporary and subsequent action of the legislature in reference to the subject
matter has been accepted as controlling evidence of the intention of a particular act.
(Sutherland, Statutory Construction, p. 394, sec. 311.)
IV. As this is a statute prescribing a salary to a public officer it should be liberally
construed. (Sutherland, Statutory Construction, p. 536, sec. 419.)
V. The legislature had a perfect and legal right to appropriate $2,400 per annum for the
salary of superintendent of public instruction and ex officio curator of the state museum, and
the expression of their will in the appropriation act is law, as it is the last expression of the
will of the legislature. (Riggs v. Brewer, 64 Ala. 282; Riggs v. Pfister, 21 Ala. 469; U. S. v.
Ashfield, 91 U. S. 31S; Meyers v. English, 9 Cal. 341; Sage v. Schuyler, 79 N. Y. 201.)
U. S. v. Ashfield, 91 U. S. 318; Meyers v. English, 9 Cal. 341; Sage v. Schuyler, 79 N. Y.
201.)
I. At present and at all times during the incumbency of relator the superintendent of public
instruction is and was, by law, ex officio curator, and perhaps secretary of the board of
directors of state orphans' home. As superintendent of public instruction, his salary has been
fixed by law at the sum of $1,000 per annum, payable out of the general school fund. (Stats.
1891, p. 104.)
II. There is no salary fixed by law for his ex officio duties as either curator or secretary of
the board of directors of the orphans' home, except that by the act approved March 21, 1891,
and that act fixes it only in conjunction with the salary fixed for the other ex officio duties of
clerk of the supreme court and state librarian, and at that time attached to his principal office,
and at that time he was in fact not secretary of said board of directors. When the present
appropriation was made, it was evidently based upon the salary as established for the
principal and all four ex officio offices of the superintendent of public instruction with,
however, but one of them named in the appropriation. Therefore, the appropriation in excess
of $1,000 per year for the principal office is void because the other $1,400 per year is
appropriated in solido, and no one can ascertain how much of it shall be paid for salary of
curator, the appropriation having been made in solido and not being specific, the salary
having been fixed at $1,400 per annum for four ex officio offices, when now but two of them
remain to relator, and but one of these is named in the appropriation. (19 Nev. 372, citing 65
Cal.)
III. The superintendent cannot receive any pay for the ex officio offices which have been
taken from him and nothing by reason of being secretary of the board of directors of the
orphans' home, because there is no salary fixed for that office (Stats. 1881, 31), nor is there an
appropriation made for it, and the salary of curator, having been abolished by repeal of the act
of 1877, there is no salary legally payable for services as curator, and that not being a
constitutional office, the salary thereof is under the control of the legislature.
office, the salary thereof is under the control of the legislature.
IV. Respondent cannot legally draw his warrant in favor of relator for more than at the rate
of $1,000 per year for salary as superintendent of public instruction. That is the maximum
salary allowed to that officer which can be legally paid out of the general school fund; and
any greater appropriation from that fund is absolutely void, for the reason that even the
legislature has no authority or power to appropriate any part of the school moneys for salary
of curator or for any other purpose than an educational one.
The relator, as state superintendent of public instruction, applies for a writ of mandamus to
compel the respondent, as state controller, to draw a warrant in his favor for the sum $200,
salary due him for the month of November, 1895. He contends that he is entitled to a salary of
$2,400 per year, while the respondent contends he is only entitled to $1,000. This contention
constitutes the question to be decided in this proceeding.
By Stats. 1891, 32, the legislature provided that after January 1, 1895, the superintendent
of public instruction shall be ex officio clerk of the supreme court, ex officio state librarian,
and ex officio curator of the state museum. At the same session, in a general act fixing the
salaries of state officials (Stats. 1891, 104), it was provided that after January 1, 1895, there
should be paid to the superintendent of public instruction one thousand dollars, payable out
of the general school fund; to the superintendent of public instruction, as ex officio clerk of
the supreme court, ex officio state librarian, ex officio curator of the state museum, and
secretary of the board of directors of the state orphans' home, fourteen hundred dollars.
At the next session (Stats. 1893, 32) the act above referred to, making the superintendent
ex officio clerk and ex officio librarian was repealed, and those positions were attached to the
office of secretary of state, but nothing was said concerning the superintendent's salary as ex
officio curator or ex officio secretary of the orphans' home board, offices conferred upon
him by other statutes.
secretary of the orphans' home board, offices conferred upon him by other statutes.
The office of superintendent and the various ex officio offices mentioned in these statutes
are each a separate and distinct office, and their being vested in the same person does not
change their nature in this respect. (State ex rel. Davenport v. Laughton, 19 Nev. 202; People
v. Durick, 20 Cal. 94; Kinsey v. Kellogg, 65 Cal. 111.)
It is very clear that the salary of $1,400, which, by the act of 1891, was to be paid to the
superintendent, was the salary attached to all four of those ex officio offices, and constitutes
the compensation for discharging the duties of all of them. It was to be paid in solido, and no
particular sum was fixed as the salary of any one of them. This, of course, did not matter so
long as all the offices were vested in one person, but now that that person is no longer clerk
and librarian, it becomes highly important, for he certainly is not now entitled to the salary
attached to those positions. The result is that the law fixing the salary has become inoperative.
The superintendent is no more entitled to the whole salary, because of the two positions that
he still holds, than is the secretary of state, because of the two now vested in him. But that,
under the circumstances, no part of the salary can be paid to the secretary, was, in principle,
decided in State ex rel. Gallup v. Hallock, 19 Nev. 371, and the same principle is applicable
here. In fact that case is virtually decisive of this.
There an appropriation had been made for the payment of the lieutenant-governor, as such,
and as ex officio librarian and adjutant-general, of which he had lost the two latter positions
by failing to give an official bond, and they had become vested in another person. The court
said: The sum appropriated was set apart in solido for the payment of all the services to be
rendered by that officer. Conditions have arisen which prevent the employment of the fund in
this manner, and the appropriation has become inoperative. In the case at bar, so far as the
present question is concerned, it is the statute fixing the salary that has become inoperative,
but the principle is the same.
Kinsey v. Kellogg, 65 Cal. 111, is a case squarely in support of the conclusion announced
here, and to the same effect is San Luis Obispo County v. Darke, 76 Cal. 92. In the latter
case the court said: "by the act of March 31, 1S76, it was provided that the county clerk
should receive a certain annual salary as his only compensation in all three capacities as
county clerk, county auditor, and county recorder.
San Luis Obispo County v. Darke, 76 Cal. 92. In the latter case the court said: By the act of
March 31, 1876, it was provided that the county clerk should receive a certain annual salary
as his only compensation in all three capacities as county clerk, county auditor, and county
recorder. After 1881, and while a different person was the incumbent of each of the three
offices, the county clerk was entitled to receive no portion of the salary fixed by the law of
1876. The law became inoperative because it was intended to be operative only while the
three offices were filled by one person.
The statute of 1891 fixing the relator's salary having become inoperative, so far as the ex
officio offices are concerned, there is no statute fixing any salary for the offices of curator and
secretary of the orphans' home board, and without statutory authority for its payment, no
compensation can be recovered by a public officer. (Mecham Pub. Off., sec. 856.)
In the appropriation act of 1895 (Stats. 1895, 70) the legislature appropriated the sum of
$4,800 from the general school fund for the payment of the relator's salary as superintendent
and ex officio curator of the state museum for the fiscal years of 1895 and 1896, and the
relator argues that this indicates the intention of that body that he should be paid a salary of
$2,400 per year. It probably does indicate that the legislature of 1895 supposed his salary to
be that amount, but if so, it was a misapprehension, and it does not follow from the
appropriation that the law becomes what they then supposed it was. (Sutherland, Stat. Const.,
sec. 402; Van Norman v. Jackson, 45 Mich. 204; Davis v. Delpit, 25 Miss. 445; Byrd v. State,
57 Miss. 243.) In the latter case the court said (p. 247): An enactment of the legislature
based on an evident misconception of what the law is will not have the effect, per se, of
changing the law so as to make it accord with the misconception.
The purpose of the general appropriation act is to provide funds for carrying on the state
government. The mere fact that money is appropriated for an officer's salary, or for any other
purpose, does not, of itself, make that money payable to any particular person. There must
still be some authority of law to justify the controller in drawing a warrant for it, or the
treasurer in paying it out.
or the treasurer in paying it out. (Gen. Stats. 1811.) If more is appropriated than is sufficient
for the particular purpose designated, it is to be covered back into the general fund at the end
of the fiscal years. (State ex rel. Wilkins v. Hallock, 20 Nev. 73.) If less, it does not repeal a
former act fixing an officer's salary, unless such clearly appears to have been the intention.
(Mecham, Pub. Off., sec. 857; State v. Steele, 57 Tex. 200; State v. Cook, 57 Tex. 205.)
It may be, and very likely is, that both the legislatures of 1893 and of 1895 supposed the
superintendent's salary was fixed at $2,400 per year, and that they intended him to have that
salary, but, if such is the case, they did not manifest that intention in such a manner that it has
become law, and consequently it cannot be taken notice of by officers or courts.
Application for the writ denied.
I concur in the above opinion that the writ prayed for in this case must be denied, not on
the ground that the fourteen-hundred-dollar provision of the salary act of 1891, relating to the
salary of the superintendent of public instruction, has become inoperative, for I do not
consider that it has become so, but upon the ground, in my opinion, that the general
appropriation bill of 1895, in so far as it appropriates more than $1,000 annually out of the
school fund towards the payment of the superintendent's salary, never became operative. That
part of the appropriation properly made out of the school fund having been exhausted, and no
appropriation having been made out of the general state fund for the payment of the balance
of his salary, he is subjected to the necessity of awaiting the proper action of the legislature
for the balance of his salary. Although this is unfortunate and to be regretted, it is true and
unavoidable.
____________
23 Nev. 127, 127 (1896) State v. O'Keefe
[No. 1455.]
STATE OF NEVADA, Respondent, v. JOHN O'KEEFE,
Appellant.
Criminal LawRobberyAccessory Before the Fact.The defendant, with other boys, invaded the
prosecutor's premises. Some of the boys drove prosecutor's companion to the rear of the house and
detained him there while two others robbed prosecutor. It was not definitely shown that defendant
participated in the robbery, other than he came with the robbers, and left when they left; was present at the
robbery, and apparently acquiesced therein. Held, that the evidence would have justified the jury in finding
him guilty of the robbery.
IdemArgument of Prosecuting AttorneyMisstatement of Law.Misstatements of law made by the
prosecuting attorney in his argument to the jury should be corrected by proper instructions and not by a
motion to strike out. A motion to strike out in such a case affords no adequate relief.
IdemVerdict of JuryLesser Offense.Where the evidence shows the defendant to be guilty of robbery, he
cannot complain that he was convicted of an attempt to commit the crime.
Criminal PracticeEvidenceExcepted to and Not Excepted To.Where certain testimony is received against
defendant's objection, and exception is taken thereto, and thereafter the same matter is testified to by
another witness without objection and no attempt is made to disprove it: Held, that under the circumstances
defendant is not prejudiced.
Appeal from the District Court of the State of Nevada, Storey county; Charles E. Mack,
District Judge:
John O'Keefe was convicted of an attempt to commit robbery, and appeals. Affirmed.
F. M. Huffaker and Geo. D. Pyne, for Appellant:
I. The gist of an attempt to rob is doing some act towards this and failing or being
prevented. If there is no overt act towards the accomplishment of the robbery resulting in
failure or interception, there can be no attempt to rob, any more than if no property is taken
from the person by violence there can be no robbery. In either event a conviction would be
against law. In appellant's case there is no evidence whatever to show that he did any act
toward robbing Lees, consequently he could not be legally convicted of this offense.
II. The crime of robbery may embrace larceny, or larceny from the person, or of grand
larceny, and perhaps of an assault with intent to commit robbery, but not an attempt to
rob.
larceny from the person, or of grand larceny, and perhaps of an assault with intent to commit
robbery, but not an attempt to rob. (Haley v. State, 49 Ark. 147; People v. Kennedy, 57 Hun.
(N. Y.) 532; State v. Graft, 66 Ia. 482; Com. v. Prewitt, 82 Ky. 240; People v. Jones, 53 Cal.
58; People v. Nelson, 56 Cal. 77; Hickey v. State, 23 Ind. 21; State v. Jenkins, 36 Mo. 372;
Tucker v. State, 3 Heish (Tenn.) 484; People v. O'Brien, 88 Cal. 483; Allen v. State, 58 Ala.
98; State v. Howard, 19 Kan. 507; Reg. v. Brich, 2 Cox C. C. 22; Howard v. State, 25 Ohio
St. 399; Com. v. Scheretto, 130 Pa. St. 272.)
III. Where several persons are indicted jointly for the crime of robbery, it is incumbent
upon the state to show that the several indicted persons acted in concert, and the recognition
of the assailants by the party robbed or others witnessing the robbery is a circumstance
bearing on the merits, and when the party robbed testified that one of such indicted persons
did not act in concert with the others, nor made any attempt to rob him, but was actually
robbed by the others, there is a total want of competent evidence to support a verdict of an
attempt to rob against such non-participant, in which case such a verdict should be set aside.
(State v. Ah Tom, 8 Nev. 213.)
IV. That the court erred in not striking out and instructing the jury in this case to disregard
certain improper statements made by the district attorney to the jury, including the following:
Gentlemen of the jury, if you think there is not sufficient evidence to justify the finding of
defendant guilty of the crime of robbery, you may find him guilty of the crime of an assault
with the intent to commit robbery, or of an attempt to commit robbery. If the district attorney
desired any such instructions, he should have prepared the same and submitted them to the
court and asked the court to instruct the jury on these points.
Robt. M. Beatty, Attorney-General, and Langan & Knight, for Respondent:
I. Appellant is charged in the indictment with having robbed one Jonathan Lees. He was
convicted of an attempt to rob Jonathan Lees. The evidence that appellant came to the scene
of the robberythe fact of the robbery being undisputedwith those positively shown to
have committed the assault and robbery, and that he left with them immediately after the
completion of the offense; that some of the party during a portion or all of the time of the
transaction engaged in putting Thomas McDonald out of the house; that appellant is
shown to have proceeded into the house, after the first assault, and with the robbers and
their victim, and into the rear of the house through which McDonald either fled or was
driven, is amply sufficient to have warranted the conclusion by the jury that the appellant
was actually present, aiding and abetting the commission of the robberyamply sufficient
to have warranted his conviction of the crime of robbery, hence more than sufficient to
warrant his conviction of an attempt to commit the crime charged.
undisputedwith those positively shown to have committed the assault and robbery, and that
he left with them immediately after the completion of the offense; that some of the party
during a portion or all of the time of the transaction engaged in putting Thomas McDonald
out of the house; that appellant is shown to have proceeded into the house, after the first
assault, and with the robbers and their victim, and into the rear of the house through which
McDonald either fled or was driven, is amply sufficient to have warranted the conclusion by
the jury that the appellant was actually present, aiding and abetting the commission of the
robberyamply sufficient to have warranted his conviction of the crime of robbery, hence
more than sufficient to warrant his conviction of an attempt to commit the crime charged.
II. Robbery includes the attempt to rob, and the statute permits conviction for an attempt
to commit the offense charged under every indictment for felony. Appellant cannot complain
of a verdict more in his favor than the law, the facts and the instructions warrant. (Ex parte
Curnow, 21 Nev. 33; State v. Lindsey, 19 Nev. 47.)
III. As to the legal right of the jury to find a verdict of guilty of attempt to rob under an
indictment for robbery, we have only to say that the section of the crimes and punishment act
cited by appellant, relative to robbery and larceny, and the many cases cited on the subject,
are excellent so far as they go, but appellant does not go far enough, or has lost sight of
section 4292, General Statutes of Nevada, and the decisions of this court under that section,
namely: State v. Watkins, 11 Nev. 34; State v. Pickett, 11 Nev. 259; and especially Ex parte
Curnow, 21 Nev. 34. For under that section and the case of State v. Pickett, 11 Nev. 259, the
crime of attempt to commit the offense charged can be found in any case where the facts
warrant such findings.
IV. At the time the statement of the district attorney, to wit: Gentlemen of the jury, if you
believe there is not sufficient evidence to justify finding the defendant guilty of the crime of
robbery, you may find him guilty of the crime of assault with intent to commit robbery, or of
an attempt to commit robbery, was made, the court had not instructed the jury. The court
might afterwards have given the same instruction, and it cannot be said, because the court
did not give such instruction, that the making of the statement was an attempt to do
anything contrary to, or notwithstanding the instructions of the court.
instruction, and it cannot be said, because the court did not give such instruction, that the
making of the statement was an attempt to do anything contrary to, or notwithstanding the
instructions of the court. It is not improper nor unusual in argument to state the law. Nothing
more was done here. It was within the discretion of the trial court to allow or disallow the
statement complained of. It was allowed by the court, and the statement of law being correct,
the appellant could not have been injured or prejudiced by it, and he cannot complain of the
refusal of the court to withdraw the statement from the jury. In this state (and in this case)
argument precedes the instructions. (Thompson on Trials, secs. 943, 946, 949, and cases
cited; State v. Pickett, 11 Nev. 255; Gen. Stats. 4292.)
V. In any event defendant was not injured by the admission of the testimony of Lees in
question, because McDonald himself testified to all the facts, as such, which Lees says
McDonald related to him, and the facts testified to by McDonald are admitted and
unquestioned.
Appellant was tried separately upon an indictment charging him jointly with Charles
Martin and Frank Conlan of the crime of robbery perpetrated upon the person of Jonathan
Lees.
It was shown that Lees and McDonald during the daytime were in the front portion of a
house occupied by McDonald, when a party of boys, among whom was the defendant,
invaded the premises, separated the men by driving McDonald to the rear and detaining him
there while the others robbed Lees of an inconsiderable sum of money. It was not definitely
shown that defendant participated in the robbery other than he came with the robbers and left
when they left, was present at the robbery and apparently acquiesced therein.
A verdict of attempt to rob one Jonathan Lees was returned. A motion for new trial was
made and denied, and upon the judgment and order this appeal is taken.
The exceptions will be considered seriatim.
1. It is urged that the verdict is not responsive to the indictment. It must be admitted that
the defendant could not be convicted of the offense charged unless he actually or
constructively committed it.
not be convicted of the offense charged unless he actually or constructively committed it. If
his liability arise from the act of another, it must appear that the act done was in furtherance
of a common purpose. The common purpose of robbery is shown by the acts of the defendant.
It was not necessary to have shown that the defendant took any money from the person of
Lees by his own hands, or that he actually participated in the assault. If he was present, under
the circumstances, the evidence would have justified the jury in finding him guilty of the
robbery.
Bishop states the law as follows: If persons combining in intent perform a criminal act
jointly, the guilt of each is the same as if he had done it alone; and it is the same if, the act
being divided into parts, each proceeds with his part unaided. Again: All who are present at
a riot, prize fight or any other crime, if lending it countenance and encouragement, and
especially if ready to help, should necessity require, are liable as principal actors. (Bishop's
New Criminal Law, 630, 632.)
There can be no doubt of the general rule of law, that a person engaged in the commission
of an unlawful act is legally responsible for all the consequences which may naturally or
necessarily flow from it, and that, if he combines and confederates with others to accomplish
an illegal purpose, he is liable criminaliter for the acts of each and all who participate with
him in the execution of the unlawful design. As they all act in concert for a common object,
each is the agent of all the others, and the acts done are, therefore, the acts of each and all.
(Com. v. Campbell, 7 Allen, 541.)
The doctrine, as applied to cases of homicide is stated in 1 Hale's Pleas of the Crown, p.
441, as follows: If divers persons come in one company to do any unlawful thing, as to kill,
rob, or beat a man, or to commit a riot, or do any other trespass, and one of them in doing
thereof kill a man, this shall be adjudged murder in them all that are present of that party
abetting him, and consenting to the act, or ready to aid him, although they did but look on.
The court instructed the jury, in effect, that under the circumstances if the defendant stood
by, and by his presence aided or abetted those who committed the robbery it was sufficient.
sufficient. The matter was properly submitted to the jury. It was not necessary to have shown
any other physical act. The statute (section 4292) provides that the jury may find the
defendant guilty of any offense the commission of which is necessarily included in that with
which he is charged, or an attempt to commit the offense. Upon the evidence, as we have
seen, the jury could have found the defendant guilty of the robbery. As they have found him
guilty of a lesser offense he cannot complain.
2. At the commencement of the trial counsel for appellant announced in open court that
they would introduce the co-defendants as witnesses. They were not sworn, and the district
attorney, in summing up, among other things, said: From the fact that the defense did not
place upon the witness stand the parties jointly indicted with this defendant, who were present
at the commission of this robbery, and whom they had announced in court as their witnesses,
and have had an opportunity to produce, the inference, I claim, is that this defendant either
aided, abetted, assisted or encouraged the commission of said robbery, and you are at liberty
to infer his guilt from this circumstance, and the failure of the defense, by such witnesses, to
explain the defendant's connection with the robbery.
Appellant moved to strike out the above statement, and, upon denial of the motion,
excepted to the ruling.
It will be observed that the inference drawn by the district attorney was one for which he
alone, and not the court, was responsible. The most that can be said against it is that it is a
misstatement of the law. If so, the error could have been corrected by an instruction, and not,
as in this case, by a motion to strike out. Such motion affords no adequate relief.
In Proctor v. DeCamp, 83 Ind. 559, a similar question arose. The court said: Errors in
logic, or in law, occurring in the address to the jury, cannot be made a cause for overturning
the verdict. If the error is of logic, if illogical conclusions are drawn or illicit inferences made,
the courts cannot correct these by directing counsel to reason logically. If, however, counsel
state the law incorrectly in their address to the jury, the adverse party can secure a correction.
The correction is not to be obtained by objecting to the statements of counsel during the
argument, but by asking the court to give the law to the jury in its instructions."
correction is not to be obtained by objecting to the statements of counsel during the argument,
but by asking the court to give the law to the jury in its instructions.
Again, if error were committed, it was corrected by the instructions. In charging the jury
the court, among other things, said: In determining questions of fact presented in the case,
you should be governed solely by the evidence introduced before you. * * * You have entered
upon your duties as jurors in this case by taking a solemn oath that you would render a true
verdict according to the evidence. That duty and obligation are performed only when a verdict
is rendered which is in accordance with the evidence. While you have a right to use your
knowledge and experience as men in arriving at a decision as to weight and credibility of
witnesses, yet your finding and decision must rest alone upon the evidence admitted in this
trial. You cannot act upon the opinions and statements of counsel as to the truth of any
evidence given, or as to the guilt or innocence of the defendant.
3. Exception was taken to the admission of evidence illustrating the manner in which
Martin committed his part of the robbery. At the time the exception was taken the complicity
between the defendants had not been as fully established as it afterwards was, but the witness
Lees then under examination, had testified to the assault made upon him by several persons in
whose company the defendant was. This was a sufficient foundation for the admission of the
evidence.
4. Exception was taken to evidence given by the witness Lees touching a colloquy
between himself and McDonald. After the exception had been taken McDonald testified, fully
corroborating Lees' statement, without objection, and no attempt was made to disprove the
fact.
Under the circumstances the defendant was not prejudiced.
The judgment and order denying a new trial are affirmed.
____________
23 Nev. 134, 134 (1896) Orr v. Ulyatt
[No. 1450.]
THOMAS ORR, Appellant, v. GEORGE C. ULYATT,
Respondent.
MortgageUnited States Homestead ActExemption Under.U. S. Revised Statutes, sec. 2296, providing
that no lands acquired under the homestead act shall in any event become liable to the satisfaction of any
debt contracted prior to the issuing of a patent therefor, does not render invalid a voluntary incumbrance
by mortgage, placed on said homestead prior to the issuance of a patent therefor.
IdemLien Not a Conveyance.Under the provision of General Statutes, sec. 3284, providing that a mortgage
shall not be deemed a conveyance, a mortgage is not an alienation, but is a mere security for a debt.
District Judge:
Suit by Thomas Orr against George C. Ulyatt and others to foreclose a mortgage. From a
judgment exempting a homestead from the operation of a mortgage lien, and from the order
denying a new trial plaintiff appeals. Reversed.
Robert M. Clarke, for Appellant:
I. It is defendant's contention that the mortgage of April 10, 1891, was void under section
2296 of the Revised Statutes of the United States concerning homesteads, which provides as
follows: No lands acquired under the provision of this chapter shall in any event become
liable to the satisfaction of any debt contracted prior to the issuing of the patent therefor.
(Rev. Statutes U. S., sec. 2296.)
II. It is plaintiff's contention that this section does not forbid a bona fide mortgage upon
the homestead premises made by the homestead claimant; that defendant is estopped by the
terms of the mortgage, which grants, bargains, sells, conveys and confirms the lands unto the
said Thomas Orr, his heirs and assigns forever.
III. The act of congress does not in terms forbid the mortgaging of homestead property.
The provision is that such lands shall not become liable to the satisfaction of any debt
contracted prior to the issuing of the patent. This provision is a simple exemption of the
lands from liability, and does not in any sense forbid the making of a bona fide and
voluntary pledge upon the land to secure a bona fide debt.
23 Nev. 134, 135 (1896) Orr v. Ulyatt
does not in any sense forbid the making of a bona fide and voluntary pledge upon the land to
secure a bona fide debt. The question has been many times decided according to the
contention of plaintiff. (Lang v. Morey, 40 Minn. 396; Townsend v. Fenton, 30 Minn. 528;
Red River R. Co. v. Sture, 32 Minn. 95; Lewis v. Witherill, 36 Minn. 386; Spiess v. Neuberg,
71 Wis. 279; Paige v. Pelais, 70 Wis. 78; Orr v. Stewart, 67 Cal. 275; Kirkaldie v. Larrabee,
31 Cal. 455; Nycum v. McAllister, 33 Iowa, 374; Fuller v. Hunt, 48 Iowa, 163; Cheney v.
White, 5 Neb. 261; Jones v. Yoakam, 5 Neb. 265; Boygan v. Reid, 20 Pac. R. 425; 40 Pac. R.
880; 12 Mont. 282.)
IV. It would be a great fraud upon the plaintiff to permit defendant to defeat the mortgage
by pleading his own perfidy. The defendant having solemnly declared in his deed of mortgage
that he was the owner of the land by title in fee, the court will not permit him to say he had
not the title at the time he declared himself to be the owner or hear him say that the title has
since been acquired. (Kirkaldie v. Larrabee, 31 Cal. 456; Pierson v. David, 1 Clarke (Iowa)
26; Camp v. Smith, 2 Minn. 173; Hope v. Stone, 10 Minn, 141; Bush v. Marshall, 6 How. (U.
S.) 288; Phelps v. Kellogg, 15 Ill. 135; 67 Cal. 275-278; Perkins v. Coleman, 90 Ky. 511;
Pendill v. The Marquette County Agricultural Society, 95 Mich. 491; Spiess v. Neuberg, 71
Wis. 279; Norris v. Heald, 12 Mont. 282; Herman, Estoppel and Res Adjudicata, vol. 2, p.
782, 783, sec. 647; Elder v. Armstrong, 87 Ind. 168; Thompson v. Justice, 88 N. C. 269.)
Thomas E. Haydon, for Respondent:
I. Under sections 2288, 2290 and 2296 of the Revised Statutes of the United States
(revision of 1878), and under the general policy of the homestead act, the mortgage in this
suit by all rules of construction is broadly and odiously contrary to the letter and spirit of said
sections and to that of the act itself, and is consequently and necessarily null and void as to
the west half of the southeast quarter of section two, township nineteen, range twenty east.
II. The law of congress in regard to the disposition of public lands is paramount. (Lechler
v. Chapin, 12 Nev. 71.)
III. A title by patent passes to the patentee the unincumbered fee of the soil and wipes
out all former titles.
23 Nev. 134, 136 (1896) Orr v. Ulyatt
bered fee of the soil and wipes out all former titles. (Vansickle v. Haines, 7 Nev. 249. This
case is only modified as to use of water by appropriation, by Jones v. Adams, 18 Nev. 88, and
Reno Smelting Works v. Stevenson, 20 Nev. 275.)
IV. The mortgage in suit was an alienation or conveyance forbidden, by implication, by
section 2288 under the maxim expressio unius exclusio alteriusthat is, the homestead
claimant may transfer portions of homestead for church, cemetery, school or right of way for
railroads without vitiating his homestead. Evidently not for any other purpose.
V. Respondent refers the court to the case of Barnard v. Boller, 105 Cal. 214, which is a
refreshingly logical and conclusive construction of section 2296 of the Rev. U. S. Statutes
relating to homesteads. This decision holds that the homestead claim, under section 2296, can
not be made liable for the payment of a debt contracted after proving up and delivery of the
duplicate receipts, but before the issuance of the patent, and adds: Congress has in plain and
direct terms exempted the homestead' land from the debts of its owner or claimant up to the
happening of a specific event, viz.: to the issuing of the patent therefor.
VI. The cases of Kirkaldie v. Larrabee, 31 Cal. 455, and Orr v. Stewart, 67 Cal. 275, are
in effect overruled by the case of Moffat v. Bulson, 96 Cal. 109, where it is held that a
contract to sell and convey lands, taken under the homestead laws before final proof, is
illegal, and in that case held void a mortgage on other lands because the mortgagee in the
same oral contract agreed to convey a homestead claim when he should prove up and obtain
title to such homestead claim.
VII. Section 3284, Gen. Laws of Nevada, only limits the operation of a mortgage as a
conveyance so that the mortgagee shall only recover possession of the real property by
foreclosure and sale.
VIII. It is against the policy of the U. S. homestead laws to permit a conveyance of any
part of the homestead, and any agreement to convey or conveyance by the homesteader is
therefore void. (Nichols v. Council, 51 Ark. 26; Cox v. Donnelly, 34 Ark. 762; Sorrells v.
Self, 43 Ark. 451; Shorman v. Eakin, 47 Ark. 351; Marshall v. Cowles, 48 Ark. 362; McCue
v. Smith, 9 Minn. 252; Woodbury v. Dorman, 15 Minn.
23 Nev. 134, 137 (1896) Orr v. Ulyatt
McCue v. Smith, 9 Minn. 252; Woodbury v. Dorman, 15 Minn. 338.)
This is a suit of foreclosure.
The mortgaged property consists in part of a homestead entered March 26, 1885, under the
law of congress.
The mortgage was made April 10, 1891, and before final proof. Patent was issued January
30, 1892. Defenses were interposed by answer, but the court in its written findings found in
favor of appellant upon all issues, and ordered judgment in his favor except as to so much of
the mortgaged premises as are embraced by the homestead claim. The property was originally
mortgaged by respondent in the year 1883, and the present debt is a renewal of the former
debt. These transactions do not influence the matter. The question is whether the homestead
property is liable on this suit.
Section 2296, Rev. Stats. U. S., provides that no lands acquired under the provisions of
this chapter shall in any event become liable to the satisfaction of any debt contracted prior to
the issuing of a patent therefor.
This provision has frequently been a subject of judicial construction. Nycum v. McAllister,
33 Iowa, 374, was a suit to foreclose a mortgage given upon a homestead under the law of
congress. The defense was that under the provisions of section 2296 above quoted, the
mortgage could not be enforced. The court in that case said: The question presented for our
decision is, whether a homestead, taken under the act of congress, may be conveyed by
mortgage, executed by the homestead settler, to secure a debt contracted prior to the issuing
of the patent for the land. * * * Does the provision of the act of congress just referred to
render invalid a mortgage upon the homestead settler's interest, in case no patent has been
issued to him? The provision is clearly intended for the protection of the settler. It is not a
limit or restriction upon the right he acquires to the land, neither does it operate as a
disability, forbidding the sale or transfer of his interest in the land. This view is certainly
correct, in case the settler has done all the law requires him to do in order to obtain a patent,
when he has a right to the patent, and it has not been withheld through his fault.
23 Nev. 134, 138 (1896) Orr v. Ulyatt
and it has not been withheld through his fault. In such a case his right to the land would be
full and complete. Now, the provision in question is not a restriction upon his rightit is not
a limit upon his rightto dispose of the land in a manner recognized by the law. The law
recognizes his right to convey his land by mortgage. Such an instrument, when executed in a
valid form upon his homestead, must be enforced. The provision is intended as a shield for
his protection, and is not a weapon for the destruction of any of his rights.
Again, in Fuller v. Hunt, 48 Iowa, 163, the question was presented, whether one who had
entered a homestead claim could mortgage it prior to the time he was entitled to make final
proof. It was claimed that under the provisions of section 2296, above quoted, that the
homestead was not liable for a mortgage made prior to the issuance of the patent. Said the
court: If the land is liable at all, it is by notice of the act by which the debtor undertook to
create a special lien upon it, and we have to say that we think the debtor's act had that effect.
Mere exemptions from execution do not prevent the debtor from creating such lien.
Exemptions are provided merely for the debtor's protection. Such is the general rule, and
such, it appears to us, is the intention of the homestead act. The only reason suggested why
the claimant under the homestead act should not be allowed to mortgage his homestead is that
it would be against public interest. But the fact that the act provides against alienation by the
claimant, and does not provide against mortgaging, unless alienation includes mortgaging (a
point which will be hereafter considered), indicates that it was not deemed to be against the
public interest that the claimant should mortgage his homestead.
In Lang v. Morey, 40 Minn. 396, it was decided that a person making a homestead entry
may mortgage it prior to submitting final proof. In deciding the case the court called attention
to its previous decisions upon the same subjectTownsend v. Fenton, 30 Minn. 528; Red
River, etc. v. Sture, 32 Minn. 95, and Lewis v. Wetherell, 36 Minn. 386and said: In the
first of these cases it was held that an agreement made after the entry, but before final proof,
to convey lands held under the homestead act when the patent should be issued, is valid.
23 Nev. 134, 139 (1896) Orr v. Ulyatt
lands held under the homestead act when the patent should be issued, is valid. In the second it
was decided that the entry by the homesteader is a contract of purchase; that thereupon he has
an inchoate title to the land, which is property, a vested right, which can only be defeated by
his failure to perform the conditions affixed; that, if these are performed, he becomes invested
with full ownership, and an absolute right to a patent, which, when issued, relates back to the
time of the entry; while in the last it was determined that section 2296, Rev. Stats. U. S.,
which prescribes that no lands acquired under the provisions' of the homestead act shall, in
any event, become liable to the satisfaction of any debt contracted prior to the issuing of the
patent therefor,' upon which plaintiff seems to rest her case, was manifestly intended for the
protection of the entryman, to prevent the appropriation of the land in invitum to the
satisfaction of debts incurred anterior to the issuance of the patent, and that a mortgage given
upon a government homestead, so called, after a final certificate has been issued, but before
the reception of the patent, is efficacious. As the section depended upon, above quoted,
applies to proceedings against an unwilling party only, and there is no provision of the law
expressly prohibiting the act which the plaintiff seeks to avoid, we are unable, in view of the
effect attributed to the making and filing of the affidavit of entry in Townsend v. Fenton,
supra, to distinguish between mortgages executed prior and those executed subsequent to
final proof and delivery of the final certificate.
In Cheney v. White, 5 Neb. 261, and in Jones v. Yoakam, 5 Neb. 265, it was decided that a
homestead settler under United States laws after making final proof may mortgage the
homestead, notwithstanding the patent has not been issued.
In Jones v. Yoakam the court said: All that congress could have intended by this section
(2296) was, that the owner of such homestead should not be deprived of the land by virtue of
legal process founded on a debt contracted before the patent has issued. It is not intended to
do more than protect him against the compulsory payment of such a debt. Mark the language
employed: No land * * * shall be liable,' etc., that is, bound or answerable, in law or
equity.
23 Nev. 134, 140 (1896) Orr v. Ulyatt
liable,' etc., that is, bound or answerable, in law or equity. It was intended simply as a
protection and benefit to the owner of the homestead, and not as a prohibition upon his right
of alienation, by deed or mortgage, and for any valuable consideration which he may choose
to accept. It is a benefit which he may waive or claim at his own option. See, also, Spiess v.
Neuberg, 71 Wis. 279; Kirkaldie v. Larrabee, 31 Cal. 456; Orr v. Stewart, 67 Cal. 275.
In this state it is provided by statute that a mortgage of real property shall not be deemed a
conveyance, whatever its terms, so as to enable the owner of the mortgage to recover
possession of the land without a foreclosure and sale. (Sec. 3284, Gen. Stats.)
Under the provisions a mortgage is not an alienation, but a mere security for a debt.
In Fuller v. Hunt this objection was considered as follows: The giving of a mortgage may
result in alienation, but it is not such of itself, nor can it be said that the mortgage is given
with such purpose. Land is often mortgaged with the view of obviating the necessity of
alienation. The office of a mortgage is simply to create a lien. Under our statute the legal title
remains in the mortgagor, though the case would not probably be different if it passed to the
mortgagee. A conveyance made merely to create a lien lacks the essential element of
alienation.
The order of the district court denying a new trial must be reversed, and an order made
directing that court to enter a decree in conformity with the views herein expressed. And it is
so ordered.
____________
23 Nev. 141, 141 (1896) Sadler v. State
[No. 1462.]
REINHOLD SADLER, Respondent, v. STATE OF
NEVADA, Appellant.
Presumptions on AppealInsufficient Record.The plaintiff, as lieutenant-governor, sued to recover
compensation for seventeen days' services, during which time he alleged he had acted as governor of the
state. The answer denied that he had acted in that capacity for more than four days. Judgment was rendered
in the plaintiff's favor, and without statement on appeal, or motion for new trial, the defendant appealed:
Held, that the presumption is that the court found that he had acted as governor for the time alleged, and
that the evidence was sufficient to support the finding. (Syllabus by Bigelow, C. J.)
District Judge:
Action by Reinhold Sadler against the State of Nevada. Judgment for plaintiff, and the
State appeals. Affirmed.
Robert M. Beatty, Attorney-General, for Appellant.
James R. Judge, for Respondent.
The plaintiff, as lieutenant-governor, brought his action in the district court to recover
$136 as compensation due him for seventeen days' services rendered by him during the month
of November, 1895, as acting governor of the state of Nevada, and for mileage in connection
with those services.
The statute provides (Stats. 1891, 104), that the lieutenant-governor shall receive ten
dollars per day when acting as president of the senate, and eight dollars per day when acting
as governor, and such mileage as is paid to members of the legislature. As no objection has
been made to the complaint, we shall treat the allegation that he was acting governor during
the time mentioned, as it was treated in the court below, as equivalent to an allegation that he
was then acting as governor. The answer denies that the plaintiff acted as governor for
more than four days during the month of November, 1895, and contains an allegation that for
the four days he has been fully paid. It will thus be seen that a square issue of fact was made
by the pleadings as to the length of time he had acted as governor, for clearly he is only
entitled to compensation during the time he had so acted.
23 Nev. 141, 142 (1896) Sadler v. State
as to the length of time he had acted as governor, for clearly he is only entitled to
compensation during the time he had so acted. Judgment was rendered in the plaintiff's favor
for the full amount of his demand for services, less four days for which he had been paid, but
he was allowed no mileage. From this judgment the state appeals.
There was no motion for new trial, nor is there any statement on appeal. It follows that
there is nothing before this court except the judgment roll, which consists of only the
complaint, the answer and the judgment. (McCausland v. Lamb, 7 Nev. 238.) Under these
circumstances, we must presume that the court's findings were such as to support the
judgment (Welland v. Williams, 21 Nev. 230), and, consequently, that it was found that
plaintiff had acted as governor during the time alleged. In the absence of a motion for new
trial, the question of whether this finding was correct is not before us. (James v. Goodenough,
7 Nev. 324; Burbank v. Rivers, 20 Nev. 81.) We must presume the evidence was sufficient to
support it, or that otherwise the defendant would have moved for a new trial on that ground.
The question, therefore, principally argued, as to when the lieutenant-governor acts as
governor, is not so presented that it can be decided.
Judgment affirmed.
____________
23 Nev. 143, 143 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
APRIL TERM, 1896.
____________
23 Nev. 143, 143 (1896) State v. Wheeler
[No. 1454.]
STATE OF NEVADA, Appellant, v. JOHN T. WHEELER and SAMUEL WHEELER,
Partners Under Firm Name of Wheeler Brothers, Respondents.
LicenseLandholders.The word holder, as used in Statutes 1895, p. 53, requiring sheep owners who are
not the owners and holders of one acre of land for each two sheep to procure a license, means one who is in
possession, actual or constructive, of the land.
Lessee of the LandOwner.A lessee of land for a fixed term is an owner thereof, within the meaning of that
law.
Penal Statute, Construed Strictly.That statute, although a revenue measure, is a penal statute, and should be
construed strictly. A proviso in a penal statute exempting persons from the operation of the act should be
construed liberally in favor of the subject. (Syllabus by Bigelow, C. J.)
Appeal from the District Court of the State of Nevada, Elko county; A. E. Cheney, District
Judge:
Action by the State of Nevada against John T. Wheeler and Samuel Wheeler, partners
under the firm name of Wheeler Brothers. Judgment for defendants, and the State appeals.
Affirmed.
Action to recover $350 as license money due upon 7,000 head of sheep, and for $25, the
statutory penalty for failing to procure the license in advance, under Stats.
to procure the license in advance, under Stats. 1895, 53, the material portions of which act are
as follows: Section 1. Every person now engaged in, or who may hereafter engage in, the
business of owning, raising, grazing, herding or pasturing sheep, as either owner, lessee or
manager of said sheep, in any county in the state of Nevada, must annually procure a license
therefor from the sheriff, as collector of licenses of each of such counties, and make payment
therefor as follows, in advance, for each band, flock or bunch of sheep: [Then follow
provisions dividing such persons into seven classes, in proportion to the number of sheep
owned or controlled by them, and providing substantially that they must pay $50 per thousand
head thereof, after which the section proceeds:] provided, that the provisions of this act shall
not apply to any person, persons, company, association or corporation who shall be the owner
and holder of land in the state of Nevada equal to one acre for each two sheep so owned,
raised, grazed, herded or pastured. * * * Section 2 provides a punishment of fine and
imprisonment for failing to procure the license. Section 3 directs the district attorney to bring
suit for the license money due, and that there shall be entered up in the judgment the
additional sum of $25 as penalty for failing to procure the license. The facts are that the
defendants are the owners of 7,000 sheep, which, from May 3, 1895, to the bringing of this
action, August 27, 1895, they have been engaged in herding and pasturing in Elko county,
without having procured the license required by the above statute; that the Central Pacific
Railroad Company, a duly organized corporation, is the owner of 8,980 acres of land in Elko
county, which, prior to May 3, 1895, the company had leased to the defendants, said lease
commencing April 25, 1895, and running to January 1, 1896. Also, that defendants have
contracts with the state of Nevada for the purchase of 1,400 acres of land owned by said state,
the possessory title to 160 acres of unsurveyed government land, and a lease of 420 acres of
land in Eureka county, from the individual owner thereof.
W. A. Massey, for Appellant:
I. The decision of this appeal, under the assignment of errors, involves but one
question--the construction or interpretation of the phrase "owner and holder," as used in
section 1 of the act of 1S95.
errors, involves but one questionthe construction or interpretation of the phrase owner and
holder, as used in section 1 of the act of 1895. (Stats. 1895, p. 53-54.)
II. The appellant contends that it was the manifest intention of the legislature that the
exemption provided for in section 1 of said act should be enjoyed by those only who held the
title and the actual possession of lands in Nevada, and that a person who holds public lands
by a mere possessory right, or as lessee, is not entitled to the exemption.
III. In support of the contention on the part of appellant the following well-established and
settled rules on construction and interpretation are submitted to the court: In the interpretation
of any phrase of a statute, the first thing to be ascertained is the purpose the legislature had in
the enactment of the law, and, when that is known, every section should be interpreted with
reference to such purpose, and with a view to giving full and complete effect to it. (Rooney v.
Buckland, 4 Nev. 45.) It is an elementary rule of construction that words and phrases are used
in a statute in their popular and common acceptation. (State v. Payne, 29 Pac. Rep. 787;
Ormsby Co. v. State, 6 Nev. 283; Quigley v. Gorham, 5 Cal. 418; Jones v. Jones, 36 Am.
Dec. 723.) There can be no departure from the plain meaning of a statute on the ground of its
unwisdom or public policy. (Hadden v. Barrey, 5 Wall. 107; Flint River Steamboat Co. v.
Foster, 48 Am. Dec. 248; Adams v. Howe, 7 Am. Dec. 216.)
IV. Applying these rules of construction to the phrase owner and holder, as used in this
act, without regard to the hardship or impolicy of the law, the appellant insists that the
legislature clearly and manifestly intended that only those persons should be entitled to the
exemption allowed by the act who held the title and were in actual possession of lands in this
state. The popular meaning or common acceptation of the word owner implies something
more than the mere right of possessionsomething more than is implied by the word
holder. The lessee of lands is the holder of lands, but not, according to the common
meaning, the owner and holder. If the legislature had intended that the holder of lands should
be entitled to the exemption, that the lessee of lands or the one having a mere possessory
right to lands should enjoy the benefits of the exemption, the word "or" would have been
used in the law instead of the word "and."
possessory right to lands should enjoy the benefits of the exemption, the word or would
have been used in the law instead of the word and. Any other construction would do
violence to the intention of the legislature, and to the use of the English language as
understood in its popular meaning. (Black's Dict., Owner; Rapalje & Lawrence's Dict.,
Owner.)
V. It was contended that the word owner had no precise legal signification, and could be
applied to any defined interest in or to real estate, and, while admitting this contention to be
true, the appellant insists that the various defined meanings given to the word by the courts
have depended almost entirely upon its use in the particular statute, and upon the general
purpose and object of the statute. The legislature of this state, in the act under consideration,
did not intend that there should be any uncertainty in the meaning of the word as used in said
section, for it gave an exact and well-understood meaning by limiting the exemption not to
the owner, but to the owner and holder of lands. The meaning of the word is restricted
and limited by the phrase and holder to one who not only possesses, but to one who has the
legal title to the same.
VI. If the rule laid down in 4 Nev. 45, that phrases in a statute should be interpreted so as
to give complete effect to the statute, then the interpretation given by the trial court, and
insisted upon by respondents, is wrong, for the ownership and character of the major portion
of the lands of this state are such that the law is rendered inoperative as a police regulation or
a revenue measure.
VII. This act being a revenue measure, based upon the power above indicated, with an
exemption that is so discriminating as to render the clause containing such exemption
unconstitutional, this court will not declare the entire act void, unless the clause containing
the unconstitutional exemption enters so into the scope and design of the act that it would be
impossible to maintain it without the obnoxious provision. (Willis v. Austin, 53 Cal. 152;
State v. Eastbrook, 3 Nev. 180; Robinson v. Bidwell, 22 Cal. 386; Evans v. Job, 8 Nev. 342;
Cooley's Constitutional Limitations, 177.)
Thomas Wren, for Respondent:
I. Nothing appears upon the face of the act by which we can determine what the
legislature intended by the use of the term owner. We know what the popular meaning of
the word is in this state as applied to possessory titles of all kinds. The man who took
possession of a mining claim before the passage by congress of the laws regulating the
possession of mining claims was universally spoken of as the owner of the mining claim, and
in the courts he had precisely the same standing that the owner in fee would have had. From
the foundation of this state to the present time the person in possession of public lands, with
no better title than a mere naked possession, was popularly known as the owner of the land,
and in all legal proceedings he was treated as the owner of the land. In regard to the lessees of
land, it would be difficult to determine just what the popular idea was, but the lessee for the
time being was accorded all the rights of ownership, both by the people and the courts, that
the owners of land in fee simple possessed. Probably the true solution lies in the adoption of
the rule of statutory construction established by the courts, that a word or phrase used in a
statute that is ambiguous, unless they are words of restriction in the statute itself, must be
construed as having been used in the most extended sense in which the word or phrase is
used. The user of land in most of the states is held to be the owner for a great variety of
purposes. (Sankey v. Noyes, 1 Nev. 68; Anderson's Law Dictionary, Owner and Titles.
II. The decision in Sankey v. Noyes has been followed by an unbroken line of decisions by
this court down to the present time.
III. Another rule may be invoked to determine the proper construction to be placed upon
the phrase owner and holder, and that is that penal statutes will always be liberally
construed in favor of parties accused of violating them. (Ex parte Deidesheimer, 14 Nev. 311;
Bishop on Statutory Crimes, secs. 194, 216, 218, 220.)
IV. This statute is penal. It imposes penalties of both fine and imprisonment for its
violation, and following the above rule of construction, the phrase owner and holder should
be given its broadest definition.
should be given its broadest definition. There is one view of the case, though rather shadowy,
that may aid to a slight extent in ascertaining the intention of the legislature in using the
phrase. It is possible that the legislature intended that the sheep owner should hold at least
one acre of land for each two sheep in the state, by some sort of title, that quantity being
deemed sufficient to support the sheep he might own. It is more probable, however, that the
law was passed and the phrase used for the purpose of preventing sheep owners not residents
of the state from driving their sheep into the state during any portion of the year and pasturing
without owning or holding any landed property in the state. The fact, however, that the law
hampers the sheep owners who reside in the state, and who own no land by any title, militates
against this view.
V. Ownership is generally defined as one who has dominion of a thing, real, personal or
incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy
it, as far as the law permits, unless he be prevented by some agreement or covenant which
restrains his right.
VI. The word owner includes any person who has the usufruct control or occupation of
the land, whether his interest in it is an absolute fee or an estate less than a fee. (Am. and Eng.
Ency. of Law, vol. 17, 299-300.)
The constitutionality of the act under which this action is brought has been quite ably
argued before us, but as, in the view we take, the case can be disposed of without deciding
that point, we do not consider it. (State ex rel. Guinan v. Meder, 22 Nev. 264.) Aside from
that, the question presented is whether the defendants were required to procure the license
provided for in the act of March 12, 1895. This turns upon whether, as lessees of certain land
for a fixed term, they are the owners and holders of it, within the meaning of the proviso to
section one of that act.
As used here, neither of these words has a defined legal meaning, nor is the sense in which
the legislature intended to use at least one of them by any means clear. As defined by the law
dictionaries, the word holder means one who is legally in possession of a negotiable
instrument, but of course that is not the meaning intended here. Webster gives it also the
legal meaning of one who holds land, etc., under another; a tenant.
is legally in possession of a negotiable instrument, but of course that is not the meaning
intended here. Webster gives it also the legal meaning of one who holds land, etc., under
another; a tenant. But its popular meaning is one who holds, and as used here it was probably
intended to mean one who is in possession, actual or constructive, of land. One whose title
vested in him the right to the immediate possession, and who could, at any time, without let
or hindrance take actual possession, would doubtless be deemed the holder of the land,
although not then in its actual possession.
But the word owner is not so easily defined. Generally, as stated in 1 Hare, Const. Law,
355, it is nomen generalissimum, and may be applied to any defined interest in real estate.
(Gitchell v. Kreidler, 84 Mo. 476.) As used in statutes providing that property shall be
assessed to the owner, it has been held to mean the owner in fee, and not to include a lessee
(Davis v. Cincinnati, 36 Ohio St. 24; 25 Am. and Eng. Ency. 120), while in other cases what
seems to be exactly the opposite has been decided (25 Am. and Eng. Ency. 122). In
homestead statutes it includes equitable, as well as legal, owners (Lozo v. Sutherland, 38
Mich. 170; Wilder v. Haughey, 21 Minn. 101), while in condemnation proceedings it
embraces all having estates in the land, either in possession, reversion or remainder (Watson
v. N. Y. Cen. R. R. Co., 47 N. Y. 162), and in statutes providing for redemption from forced
sale, all who have a substantial interest in the premises (Cooley, Tax. 558). In Wellington v.
State, 52 Ark. 266, a prosecution under a statute forbidding hunting within enclosures without
the consent of the owner, the court said: One who has the control, use and possession of
land, as against the real owner and all others, is, in law, the owner of such lands within the
meaning of the act.
In Moeller v. Harvey, 16 Phila. 66, and Schott v. Harvey, 105 Pa. St. 222, an act of the
legislature requiring the owners of factories to provide fire escapes for the use of their
employees came under review, and it was held that the statute applied to the lessee of a
factory who was actually operating it, and not the owner in fee of the premises. In the former
case the court said: In like manner he is an owner to whom the premises will revert on the
expiration of the lease, while the lessee has a right of ownership which is equally real,
whether the term is for one or a hundred years.
the premises will revert on the expiration of the lease, while the lessee has a right of
ownership which is equally real, whether the term is for one or a hundred years. In fine, they
are owners who have a title that will or may be reduced to possession at a future period, and
they who are in possession by virtue of an existing right, however brief. And again in the
latter case (105 Pa. St. 228): The term owner' is undoubtedly broad enough to cover either
view of the case. A tenant for years, a tenant for life, and a remainder man in fee is each an
owner. So there may be a legal and an equitable estate; the trustees and cestui que trust are
both owners. When, therefore, the legislature used a term of such varied meaning, we must
presume they intended such an owner as is in the possession and occupancy of the premises,
who has the immediate dominion and control over it, and the manner of whose use makes a
fire escape necessary. Had the owner in fee been intended, it was easy to have said so.
Where words of such uncertain meaning are used in a statute, the sense they were intended to
bear must be determined from a consideration of the whole statute and its subject matter,
aided by certain general rules of statutory construction, presumed to be known to lawmakers
as well as courts, such as that some kinds of statutes are to be construed strictly and others
liberally.
1. First, we will consider the statute and its subject matter. For some reason the legislature
saw fit to require persons owning or controlling sheep to procure licenses, but exempted from
the operation of the law the owners and holders of a certain amount of land. We must suppose
that the purpose of the law was to obtain additional revenue, but, if so, what reason could
there have been for the exemption? If it was proper to put this additional burden on those
engaged in the sheep industry, why exempt the owners of land any more than the owners of
watches or any other kind of property? It is difficult, indeed, to find a satisfactory answer to
this inquiry. There seems but little, if any, logical connection between the two. The sheep do
not have to be kept on the land, nor need the land be used in connection with them. Indeed, it
need not even be in the same county. But we are bound to suppose there was some reason for
it, some honorable reason for it, as in construing a law we are not permitted to indulge in
the belief, if it can be avoided, that the legislature acted either for the purpose of favoring
certain individuals, or to injure and destroy the business of others, or without reason of
any kind.
for it, some honorable reason for it, as in construing a law we are not permitted to indulge in
the belief, if it can be avoided, that the legislature acted either for the purpose of favoring
certain individuals, or to injure and destroy the business of others, or without reason of any
kind. If this reason can be found, it may assist in elucidating the statute. It has been suggested
that it was thereby intended to reach and subject to taxation wandering bands of sheep from
other states that have heretofore been driven in for pasturage after one assessing season
closes, and then driven out again before the next opens, thereby robbing our herds of
pasturage, and yielding no revenue to our coffers. As is well known, some of these wandering
shepherds are like the Arabshere to-day and there to-morrowwithout fixed places of
habitation anywhere. They are the owners of no land by any sort of title, and, consequently, it
only being intended to reach them, the exemption should be extended to all who are; for those
holding land either by possessory title, by lease, by contract of purchase from the state, or by
homestead or pre-emption claim, are generally, equally with those holding by title in fee,
permanent residents of the state, and pay taxes on their property the same as other residents.
Perhaps there is not much force in this reasoning, and the suggested purpose of the enactment
of the law in its present shape may not be the true one, but it is at least a reason, and about the
only one that can be offered that should have had any weight with the legislature.
2. Another reason for the conclusion that it could not have been the intention to exempt
only owners in fee, is that the great mass of land held for stock purposes in this state is not
held by that title, but by contract of purchase from the state. Of this land, while having no
legal title, the vendees are the equitable owners, and they are generally considered and treated
as the full owners thereof. Such lands are mortgaged, conveyed, taxed, homesteaded and sold
under execution, substantially the same as land held under the most absolute title, and it
cannot have been the intention that such ownership, sufficient for all other purposes, should
be insufficient for this. The same may be said of possessory titles to the public domain.
Except as against the United States or its privies, the holders of such titles are treated, for
most purposes, as the absolute owners of the property.
States or its privies, the holders of such titles are treated, for most purposes, as the absolute
owners of the property. And yet, if all such titles are not sufficient under this law, then none
are; for the legislature must either have meant all of them, or none but title in fee.
3. But perhaps the strongest reason that can be given for the conclusion which we here
announce is that this is a penal statute, and as such requires a strict construction when against
a citizen, but a liberal one in his favor. A penal statute is one which imposes a forfeiture or
penalty for transgressing its provisions, or for doing a thing prohibited. (Dwarris, Stats. 74;
Woolverton v. Taylor, 132 Ill. 137; Bond v. Railroad Co., 67 Iowa, 716.) Penal statutes
include those that enforce a fine or pecuniary recovery. (Sutherland, Stat. Const., sec. 358.) It
has sometimes been said that revenue laws are not penal, but however that may be with
statutes imposing taxes generally, which are to be collected by the means ordinarily resorted
to for the collection of taxes, any statute which imposes pecuniary penalty, fine and
imprisonment for a failure to pay the tax, should certainly be classed as a penal statute, and
subjected to a strict construction. (Bishop, Writ. Laws, sec. 195; Sutherland, Stat. Const. 364;
Com. v. Standard Oil Co., 101 Pa. St. 150; Am. Net Twine Co. v. Worthington, 141 U. S. 468;
Rice v. United States, 53 Fed. Rep. 910; Endlich, Stat. Inter., sec. 346.) That is the case with
the law now under consideration. It imposes taxes not generally resting on members of the
community; it declares everyone engaging in the sheep business, without procuring the
license therein required, to be guilty of a misdemeanor, and subjects him to a fine of from $50
to $250 or to imprisonment from 25 to 90 days; and it makes him liable in a civil action to a
penalty of $25, in addition to the amount found due for the license. It seems clear that it
should be classed as a penal statute, and subjected to a strict interpretation.
Being penal, the proviso exempting persons from the operation of the law should, on the
other hand, receive a liberal interpretation. Mr. Bishop states the rule thus: While the parts
of a penal statute which subject to punishment or a penalty are, from their odious nature, to be
construed strictly, those which exempt from penal consequences will, because of their
opposite character, receive a liberal interpretation."
strictly, those which exempt from penal consequences will, because of their opposite
character, receive a liberal interpretation. (Bishop, Writ. Laws, secs. 196, 226.) To the same
effect are Sutherland, Stat. Const., sec. 227; Endlich, Stat. Int., sec. 332.
It remains but to apply these doctrines to the case. We have found that one meaning of the
word owner is the lessee or tenant of land; the word holder sometimes means the same
thing, or, as used here, the person in possession, actual or constructive, of real estate, which,
in the absence of a showing to the contrary, a tenant is always presumed to be. There is
nothing in the act to indicate that the legislature did not intend to use owner in this broad
sense, instead of the narrower one of him who has title in fee. As giving the statute the
broader construction will exempt persons from the penalties denounced by the act, the rules
above stated require us to give it this construction. The appellant contends that the tenant for
a fixed term is only the holder of property, and that the use of the term owner and holder
shows that the legislature meant more than that. But a tenant is more than a holder; he is, for
many purposes, an owner, so both words fit him. To our minds, the legislature intended by
the use of that term, just what it has said: That is, that for a person to be entitled to the
exemption he must be both an owner and holder. It was not to be sufficient for him to be the
owner of land which he had leased to another, or from the possession of which he was
excluded by the adverse holding of another; nor was the mere holding of land without color
of title to be sufficient. By this construction both words are given an appropriate meaning,
and neither are used tautologically.
In conclusion, it must, at least, be admitted that the meaning of the term owner and
holder is not clear, and is a matter of reasonable doubt. Such being the case, we cannot do
better than to quote from Endlich, Stat. Int., sec. 330, where the learned author says: The
effect of the rule of strict construction might almost be summed up in the remark that where
an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the
canons of interpretation fail to solve, the benefit of the doubt should be given to the subject,
and against the legislature which has failed to explain itself."
given to the subject, and against the legislature which has failed to explain itself. And again
from the opinion of the court in Hines v. Railroad Co., 95 N. C. 437, that the plain meaning
[of words and phraseology] must not be extended by inference, and when there is reasonable
doubt as to their true meaning, the court will not give them such interpretation as to impose
the penalty. Presumptively, the conclusion to which these principles lead us is in accordance
with the legislative intent, for we must suppose the lawmakers to have been in the possession
of such common rules of statutory construction as these, and that, had they not intended the
act to be thus construed, they would have used the term owners in fee, or some equivalent
term; and it may be added that if it is not in accordance with that intention, it will be very
easy to change the law so as to leave no doubt concerning it.
The judgment is affirmed.
____________
23 Nev. 154, 154 (1896) Watt v. Nev. Cent. R.R. Co.
[No. 1457.]
GEORGE WATT, Respondent, v. THE NEVADA CENTRAL RAILROAD COMPANY,
Appellant.
EvidenceIncompetent, Admitted at Trial, Entitled to Full Weight.Evidence may tend to prove the issues in a
case, and yet be incompetent; but, if such evidence be admitted at the trial of a case without objection, full
weight must be given it in considering the question whether or not the evidence is sufficient to sustain the
findings.
DamagesTestimony of Former Employee of Railroad Tending to Show Habit on the Road of Running
Engines, Pertinent.In an action to recover damages caused by a fire negligently set by a locomotive, the
testimony of a former engineer that he generally kept both dampers of the ash-pan open, except when going
over a bridge, and that other engineers for whom he had fired did the same, is admissible to show the habit
on defendant's road of running the engine with both dampers open.
NegligenceDuty of Railroad CompanyCharacter of Engines.It is the duty of a railroad company to supply
its road with such engines as will be least liable to set fire, and be reasonably safe from destroying property
of others along its line, and the failure to do so is want of ordinary care and prudence.
Facts Concerning Danger from Engines, Common Knowledge.It is common knowledge, based on common
observation, in this railway age, that railroad engines of the most approved construction, and with the best
known appliances, and managed by the most skillful engineers and firemen, are liable to, and do frequently,
from necessity or by accident, emit sparks and fire, capable of igniting dry rubbish or combustible matter
along their pathway.
Duty of Railroad CompanyTrack Reasonably Clear of Combustible Matter.A railroad company must be
diligent in keeping its track and right of way reasonably clear of all combustible matter as is liable to be
ignited by sparks or cinders from its engine, and thence communicated to the property of adjoining owners.
Evidence of Cause of FireSufficiency Of.Evidence of several persons that they had frequently seen fires
started immediately after defendant's train had passed; that the fire that destroyed plaintiff's property
occurred shortly after the passage of a train; that one of witnesses, on subsequent investigation, had seen
coals scattered along the track; and that the wind was blowing from the right of way towards plaintiff's
premises, was sufficient, especially in the absence of testimony pointing to any other probable agency, to
justify a finding that the fire was set by defendant's locomotive.
Verdict Contrary to EvidenceNo Substantial ConflictNew Trial.If there be no substantial conflict in the
evidence upon any material point, and the verdict or decision be against such evidence upon such point, or
where the verdict or decision strikes the mind, at first blush, as manifestly and palpably contrary to the
evidence, the supreme court will direct a new trial.
IdemFinding Based on Insufficient Evidence.Uncertain estimates, of plaintiff and his neighbors, of the
number of loads stacked, the weight of the loads, and the height of the stacks, cannot be considered as
reaching the rank of conflicting evidence sufficient to support a finding based thereon, in view of evidence
of the actual number of acres of hay land, as ascertained by a reliable survey of the ground, and the fair
average yield of two tons per acre, as admitted by the plaintiff.
DamagesPossibilities and Conjectures Not Considered in Estimating.Loss which may arise at some
indefinite future period through the destruction of hay which plaintiff had for several years been saving, to
feed his stock in case a severe winter should come, is too conjectural to be considered in estimating
damages.
Value of Hay DestroyedNearest Market Value Governs.As the hay had no value for present use, and no
ascertainable value for future use as food for plaintiff's stock, in the absence of a showing that it had any
greater market value where it was situated, its value in the nearest market, at the time it was destroyed, less
the cost of transportation, must control.
ValueFinding Not Supported by Evidence.The finding that the value of plaintiff's hay press was two
hundred dollars, the sum alleged in the complaint, is not supported by the evidence, there being no
evidence in the record tending to show any greater value of the press than it cost at plaintiff's ranch.
On Rehearing.
Measure of DamagesValue of Hay Destroyed by Fire.In an action against a railroad company for
destruction of hay by fire, it appearing that there was no market for the hay at the place where it was
destroyed, the measure of damages is the value of the hay at the nearest market, less the cost of
transportation there, and not such value plus the cost of transportation from such market to the place where
the hay was destroyed.
AppealAssignment of ErrorInsufficiency of EvidenceFindings of FactReview.Under Stats. 1893, p.
89, which provides that, when the motion for a new trial designates, as the ground thereof, the insufficiency
of evidence, it shall be a sufficient assignment of error to specify that the decision is not supported by, or is
contrary to, the evidence; and if the evidence, taken altogether, does not support the decision, on appeal,
the case shall be reversed, without regard to whether there are express findings upon all of the issues.
Where the assignment is that each and every part of each and every finding of fact by the court is wholly
unsupported by the evidence, and against the evidence, the appellate court is not bound by an express
finding of the lower court on a certain issue, unless supported by the evidence.
Appeal from the District Court of the State of Nevada, Lander county; A. L. Fitzgerald,
District Judge:
Action by George Watt against the Nevada Central Railroad to recover damages for loss of
property caused by fire from defendant's engine. From a judgment for plaintiff, and an order
denying a new trial, defendant appeals. Reversed.
O. A. Murdock, James F. Dennis, and Dickson, Ellis & Ellis, for Appellant:
I. It appears from the plaintiff's own testimony that he had no use whatever for his hay at
the time of its destruction; that up to the time of the trial he had had no use for it, nor would
he have made any use of it had it not been destroyed, and, furthermore, that he never would
have had any use for it in the future unless a winter of unusual severity should make it
necessary to use it in feeding his stock. How much stock he had nowhere appears in the
evidence. For aught that does appear, the hay that was destroyed was more than twice as
much, or, for that matter, five times as much as would be needed to carry all the stock that he
had through any winter, no matter how severe.
any winter, no matter how severe. The burden is upon the plaintiff to establish the damages
which he has sustained. If he would recover anything beyond nominal damages, he must
make it appear that he has suffered more than nominal damages. If in any case he may be
permitted to recover damages in excess of the market value of the property lost, and seek to
do so, he should be required to show clearly that the market value will not compensate him,
and clearly to what extent it would fall short of compensating him.
II. If this judgment were permited [permitted] to stand, the plaintiff would recover from
the defendant $9,760 for property, which, if we take the plaintiff's own word for it, would
never have had any value to him except upon the contingency of a winter of unusual severity,
and then such part of it only would have any value as might be required to feed such stock as
he might have. In the absence of such a winter the hay would have been suffered to stand and
rot upon the ground. Such a contingency is too remote and uncertain to be made the basis for
the allowance of prospective damages. It is too uncertain as the basis for a judgment for
damages in a court of justice. Compensation, just compensation only, in the light of the
evidence, is the object which the law seeks to attain.
III. In all cases of tort, as in an action founded upon a breach of contractunless the
defendant is chargeable with malice, or with willful or intentional wrong in respect of the act
complained of, such as would expose him to vindictive or punitive damagesjust and full
compensation for the plaintiff's loss is the measure of damages. This rule is sanctioned by the
principles of natural justice. It is the limit which the law also has set to the plaintiff's
recovery. (Baldwin v. Porter, 11 Conn. 483; Waters v. Stevenson, 13 Nev. 157; Sutherland on
Damages, vol. 1, p. 17; DeCosta v. Mass. Mining Co., 17 Cal. 613; Harvey v. The Sides S. M.
Co., 1 Nev. 539; Sedgwick on Damages, vol. 1, sec. 172; Strohm v. R. R. Co., 96 N. Y. 305;
Covert v. Gray, 34 How. Pr. Rep. 450; Clark v. The Land Mining Co., 6 Nev. 203.)
IV. In determining the value of an article in a case such as this, the market price is the test
usually applied, and if there is no market for the article at the place where the plaintiff would
be entitled to compensation, the value at the nearest market governs, adding thereto or
deducting therefrom the cost of transportation as the equity of the particular case may
require. {1 Sedgwick, Dam., secs.
plaintiff would be entitled to compensation, the value at the nearest market governs, adding
thereto or deducting therefrom the cost of transportation as the equity of the particular case
may require. (1 Sedgwick, Dam., secs. 244-246; 2 Sutherland, p. 375; 2 Sedgwick, sec. 495.)
V. What is meant by the market price or value of an article and how it is to be ascertained,
is well stated in the case of Lawrence v. Boston, 110 Mass. 126. (Railroad Co. v. Woodruff,
49 Ark. 390; Blydenburgh v. Walsh, Baldw. 331, being case No. 1583 of the Federal cases.)
VI. Before the plaintiff can recover at all in this action, it is incumbent upon him to
affirmatively establish by a satisfactory preponderance of proof: (1) That the defendant,
through its agents or employees, actually caused the fire to the damage of plaintiff. (2) That it
was due to some negligence of the defendant. The general theory is that a party is not
responsible for the reasonable exercise of a right unless upon proof of negligence,
unskillfulness or malice in the exercise of that right. (Burroughs v. Housatonic R. R. Co., 15
Conn. 124; R. R. Co. v. Yeiser, 8 Barr. 366.) We cite these cases in connection with both
propositions, for the sake of convenience, since evidence which would be competent on the
question of the cause of the fire, as well as on the question of the defendant's negligence, is so
blended that the cases are equally applicable upon both points, and, if plaintiff shall fail in
establishing either of the points as to the cause of the fire or as to defendant's negligence, he
must wholly fail in his case. This was held in the case of Longabaugh v. V. & T. R. R. Co., 9
Nev. 284, and we take it cannot be successfully denied by counsel for the plaintiff. Plaintiff
must prevail on both points or fail altogether.
VII. Negligence is an independent fact which must be established by proof, and the mere
proving that the engine started the fire (which is denied) would not be sufficient, under the
circumstances in the case, to show that there was negligence. When this railroad company
was incorporated under the laws of the state of Nevada, it had the right to operate its engine
by steam. It is a fact of common knowledge that the engine will emit sparks and drop some
coals, and in the exercise of its franchise it had a right, under the law, to use fire to generate
steam, and to emit sparks from its engine.
law, to use fire to generate steam, and to emit sparks from its engine. True, it had no right to
carelessly emit sparks in such a manner as to set fire to property along the line of its road, and
the mere emission of sparks, if any were emitted (which we deny), or the dropping of coal by
the engine, is not a per se negligence. (Denver T. & G. R. Co. v. DeGraff, 29 Pac. (Colo.)
665.)
Henry Mayenbaum, for Respondent:
I. This case is sustained on all points, not only by preponderance of evidence, but by
evidence beyond a reasonable doubt. On appeal, however, it is enough that the evidence tends
to prove the issues. This rule prevails everywhere, and has been insisted upon by this court in
numerous cases in the Nevada reports. There is no exception taken, as all the evidence was
admitted without objection under the stipulation. Without recurring to the numerous cases in
the Nevada reports, it is sufficient to cite the case of Vietti v. Nesbitt, 22 Nev. 390, where this
court tersely lays down the rules: (1) That where testimony is admitted without objection no
advantage of the fact of its incompetency can be taken afterwards. (2) Facts found by the
trial court upon conflicting evidence are conclusive on appeal. (Hayne New Trial and
Appeal, sec. 98.)
II. The cases bearing on the questions treated upon in this brief are very numerous. The
following will suffice to illustrate every point in the case at bar. Almost every one of these
authorities cited here has a number of points applicable to the case at bar: Billings v.
Fitchburg R. Co., 58 Hun, 605; Black v. Aberdeen & W. E. R. Co., 115 N. C. 667; Blue v.
Aberdeen & W. E. R. Co., 23 S. E. 275; Chicago, St. P., M. & O. Ry. Co. v. Gilbert, 52 Fed.
711; Chicago & E. R. Co. v. Zimmerman, 40 N. E. 703; Chicago, St. L. & P. R. Co. v.
Barnes, 2 Ind. App. 213; Collins v. N. Y. Central, 58 Hun, 601; Clune v. Milwaukee & N. Ry.
Co., 75 Wis. 532; Cantlon v. Eastern Ry. Co., 45 Minn. 481; Cole v. Lake Shore & M. S. Co.,
63 N. W. 647; Deane v. Chicago, M. & St. P. Ry. Co., 39 Minn. 413; Flinn v. S. F. & S. J. R.
R., 40 Cal. 14; Fort Scott Ry. Co. v. Tubbs, 47 Kan. 630; Fort Worth Ry. Co. v. Hogsett, 67
Tex. 685; Fort Worth Ry. Co. v. Wallace, 74 Tex. 581; G.
T. R. R. v. Richardson, 91 U. S. 454; G. C. & S. F. Ry. Co. v. Kluge, 17 S. W. 944; G. C. & S.
S. Ry. Co. v. Johnson, 54 Fed. 474; Greenfield v. Ry. Co., 83 Ia. 270; Gram v. Ry. Co., 1 Md.
252; Genung v. Ry. Co., 31 N. Y. Supp. 97; Gibbens v. R. R. Co., 66 Wis. 161; G. H. & S. A.
Ry. Co. v. Polk, 28 S. W. 353; G. R. Ry. Co. v. Brinkman, 64 Md. 52; Hagan v. Ry. Co., 86
Mich. 615; Haugen v. Ry. Co., 3 S. D. 394; Hockstedler v. R. R. Co., 88 Ia. 236; Hayes v. Ry.
Co., 45 Minn. 17; Ry. Co. v. Overman, 110 Ind. 538; Ry. Co. v. Searight, 28 S. W. 39; Ry.
Co. v. Peninsular Co., 27 Fla. 157; Knowlton v. Ry. Co., note 1, L. R. A. 625; Kelsey v. R. R.
Co., 45 N. W. 204; Kertz v. Ry. Co., 84 Wis. 171; Ry. Co. v. Hart, 119 Ind. 273; Ry. Co. v.
Nitsche, 126 Ind. 229; Longabaugh v. V. & T. R. R. Co., 9 Nev. 271; Martin v. Ry. Co., 62
Hun, 181; Miller v. Ry. Co., 90 Mo. 389; Ry. Co. v. Kellogg, 94 U. S. 469; Ry. Co. v. Goode,
26 S. W. 441; Moore v. Ry. Co., 78 Wis. 120; N. P. v. Lewis, 51 Fed. 658; O'Neil v. Ry. Co.,
115 N. Y. 579; Ry. Co. v. Trapp, 4 Ind. App. 69; Pattent v. R. R. Co., 87 Mo. 117; R. R. Co.
v. Hogsett, 87 Tex. 687; Smith v. Ry. Co., 55 N. W. 717; Stacy v. R. Co., 85 Wis. 225; R. Co.
v. Ransom, 33 Fla. 406; Sugarman v. R. Co., 42 N. Y. St. Rep. 30; R. Co. v. Walsh, 38 N. E.
535; Ry. Co. v. Gaines, 26 S. W. 433; Ry. Co. v. Keller, 36 Neb. 189; Ry. Co. v. Eddy, 41
Pac. 413; Yankton F. I. Co. v. Fremont, 64 N. W. 514.
III. The questions involved in this case are very simple: (1) Did defendant have, on its
right of way, dry grass capable of being ignited? (2) Did the engine of defendant set it afire
and burn plaintiff's property? (3) What was the value of the property burned?
IV. If there was an accumulation of dry grass on the right of way, and the defendant's
engine set it afire, by means whereof the plaintiff's property was burned, all the testimony in
regard to engines is of no avail. They may be the most perfect extant, yet the defendant is
liable for the property burned. (Longabaugh v. V. & T. R. R. Co., 9 Nev. 301.)
V. All the testimony of the defendant about their engines amounts to nothing, because it is
conceded, even by Mr. Slater, that all engines throw fire.
VI. Mr. Watt testified that the reason of accumulating a large quantity of hay was that
he had lost $100,000 of stock in the hard winter of 1SS9.
large quantity of hay was that he had lost $100,000 of stock in the hard winter of 1889. He
could have saved at least $50,000 worth of stock if he had the quantity of hay that defendant
burned; that this hay is worth to him $50,000. He piled up this hay to feed his stock and to
avoid the calamity of 1889 in the future. As his stock accumulated, so he kept pace with the
accumulation of hay. However, he only sued for the actual value of the hay. The hay was
red-top, and the best in the country. There was none for sale. The hay was worth $20 per ton
at least. He could not replace it for less. There was none for sale nearer than Carson valley.
He bought last year, at Battle Mountain, inferior hay at $18 per ton and it cost $10 freight
from Battle Mountain to Watt's Reese river ranch, which would make the value at the ranch
$28 per ton. Austin hay is not as good as the hay burned. In Austin the hay was, last year in
October, $10 to $12 per ton. The value of the hay burned is twice the value of Austin hay. He
would not sell, but if he were compelled he would not take less than $20 a ton.
VII. The compensation for the destruction of the hay is the sum of money which will
enable Mr. Watt to replace it. And that, a complete indemnity, requires that Mr. Watt should
receive the sum which would enable him to replace the hay. Sedgwick, sec. 246, says: If
there is no market for the article at the place where the plaintiff would be entitled to
compensation, the value at the nearest market governs. In addition to this the cost of the
transportation of the property to the place of compensation is usually to be added. There is
no market at Watt's, hence the value of the hay at the nearest market governs. In addition to
this the costs of transportation to Watt's ranch must be added. Otherwise he could not replace
it where he had it for his use and not for sale.
VIII. The statute of 1893, p. 88, was only intended, and so it appears by its express
language, to do away with the technicality of making specifications of error. But it does not
say that, where there is any substantial evidence proving, or tending to prove a fact, the
supreme court can reverse a case because there is opposing testimony contradicting the fact.
The statute has not abrogated the rule which universally prevails in all appellate courts.
versally prevails in all appellate courts. The supreme court has no such power. The
constitution guarantees the right of trial by jury, or by the court sitting as a jury, if the parties
so agree. Upon any issue their verdict or decision is conclusive if founded on any substantial
proof. However prone we may be to think ourselves competent to judge of testimony, by
merely reading the same, it is utterly impossible to judge of it as the jury and court who tried
the case, and who had the living witnesses before them, and therefore could see their
demeanor, hear their statement, weigh their candor, hesitation, faltering, prejudice, motive,
etc.
IX. Mr. Watt could only put himself in the same condition in which he would have been if
the hay was not destroyed by a sum of money which would enable him to buy the same
quantity of hay at the nearest market and ship it and place it at his ranch where his hay was
destroyed by the defendant. We must ever keep in mind that the court below did not allow the
transportation charges. The judgment is only for $10 per ton, the market value in all the Reese
river country. It surely cannot be that the rule which, according to all authorities, gives to Mr.
Watt the transportation charges, should be applied against Mr. Watt so as to deduct from the
market value at Austin what ought to have been added by the court below, and this to the
entire destruction of his right to recover anything. (Sutherland on Damages, 174.)
This action was commenced by the plaintiff in the district court of the state of Nevada, in
and for Lander county, to recover of the defendant damages for the destruction of a certain lot
of hay, a hay press and for injury to pasture land of the plaintiff alleged to be caused by fire
from the defendant's railroad engine. The case was tried by the court without a jury, and
judgment given in favor of the plaintiff for $10,060 damages, the value of the property
destroyed, as found by the court, with legal interest and $1289 70 costs. The defendant
appeals from the judgment and order of the court denying the motion for a new trial. One of
the grounds on which said motion was based is: Insufficiency of the evidence to justify the
decision of the court."
of the evidence to justify the decision of the court. The findings of fact on the issues made
by the pleadings are very full and voluminous, and to each material finding the defendant
excepted on the ground that the same is wholly unsupported by the evidence and contrary
thereto.
Appellant's counsel argues that the findings are not supported by competent evidence, and
this court is asked to exclude all incompetent evidence from its consideration in reviewing the
testimony to determine its sufficiency or insufficiency to support said findings. But evidence
may tend to prove the issues in a case and yet be incompetent. If such evidence be admitted at
the trial of a cause, full weight must be given it in considering the question whether or not the
evidence is sufficient to sustain the findings. (Vietti v. Nesbitt, 22 Nev. 390; Sherwood v.
Sissa, 5 Nev. 349; McCord v. O'Neall, 16 Cal. 397; Pierce v. Jackson, 21 Cal. 636; Hayne,
New Trial and Appeal, sec. 98.)
In the present case all evidence offered was admitted without objection, by stipulation of
the parties, except hearsay evidence. The argument of counsel is more pertinent to the
question as to the weight of the evidence than to the matter of its competency.
There is no contention as to the sufficiency of the findings of fact to support the judgment,
and we do not deem it necessary to consider but a few of the many findings and review but
portions of the evidence upon which they seem to be based. It is admitted by the defendant
that its railroad track and right of way pass through the meadow land of the plaintiff where it
is alleged the fire occurred and his property was destroyed. The court found that on the 11th
day of October, 1893, the defendant, while running its train of cars on said track and right of
way over and across said lands, carelessly and negligently used and operated a locomotive
engine defectively constructed and carelessly and negligently omitted to use proper
appliances to prevent the emission of sparks, burning coals and fire from said engine, and
carelessly and negligently omitted to keep the said right of way free and clear of dry and
combustible materials, but carelessly and negligently permitted the accumulation of large
quantities of dry grass and weeds on said right of way adjoining the said land of plaintiff,
and negligently and carelessly permitted its said engine to emit and drop sparks, burning
coals and fire into said dry grass and weeds on said right of way adjoining plaintiff's said
land, and thereby the defendant negligently and carelessly ignited and set on fire said
grass and weeds, and negligently and carelessly permitted the said fire to spread in a
continuous fire to said pasture lands, hay and hay press, and carelessly and negligently
permitted said pasture, hay and hay press to be wholly destroyed by said fire without any
fault of the plaintiff."
adjoining the said land of plaintiff, and negligently and carelessly permitted its said engine to
emit and drop sparks, burning coals and fire into said dry grass and weeds on said right of
way adjoining plaintiff's said land, and thereby the defendant negligently and carelessly
ignited and set on fire said grass and weeds, and negligently and carelessly permitted the said
fire to spread in a continuous fire to said pasture lands, hay and hay press, and carelessly and
negligently permitted said pasture, hay and hay press to be wholly destroyed by said fire
without any fault of the plaintiff.
Proper Appliances: Is the finding that the defendant negligently omitted to use proper
appliances to prevent the emission of sparks, burning coals and fire from the engine
supported by the evidence? It is admitted by the evidence on the part of the defendant that
there was no wire or iron netting or screen in the ash-pan of engine No. 1, the engine that
hauled the train on the day the fire occurred. There is evidence on the part of the plaintiff that
if there be no such netting in the back door of the ash-pan, that, when the back damper is
open and the engine is moving forward, hot cinders and coals of fire are liable to and do drop
out through the back door when the damper is up, and are liable to ignite the oil which leaks
more or less from the train and set fire to combustible material on and by the side of the track;
that there is naturaly [naturally] a certain amount of burning coals that drop into the ash-pan,
and, in the absence of such netting, the natural shaking of the engine in motion, when the
damper is raised, will roll these coals out on the ground, and, if there be combustible matter
on the ground, they will set it on fire; that when these coals drop out they may strike the end
of the ties and roll three or four feet from the track; that it is necessary to have the back
damper of the ash-pan open to get draft; that both dampers are nearly always open except
when crossing a bridge; that by some means said engine No. 1 set six fires in passing along
on a ranch adjoining the plaintiff's ranch about a month before the fire in question. Walter
Davis testified that he was engineer on this road about two and a half years; that he quit about
the middle of February, 1893; that he generally ran with both dampers open except when
going over a bridge; that he fired about two years and a half for seven different men on
this road before he became engineer; that these men always ran with both dampers open,
and made him run that way.
dampers open except when going over a bridge; that he fired about two years and a half for
seven different men on this road before he became engineer; that these men always ran with
both dampers open, and made him run that way. The testimony of Davis is pertinent as
tending to show the habit on this road of running the engines with both dampers open. (Grand
Trunk R. R. v. Richardson, 1 Otto, U. S. 454.) There is a great deal of other evidence tending
to show the necessity of such netting in the ash-pan to prevent fire escaping therefrom. On the
contrary there is evidence on the part of the defendant tending to prove that coals of fire or
hot cinders will not escape through the door of the ash-pan when the damper is up, even in
the absence of said netting; that there is no necessity of having such netting; that the engineer
who ran engine No. 1 on the day of the fire always kept the back damper of the ash-pan
closed, and that said engine was in good and safe condition, and had all the necessary
appliances to prevent the escape of fire.
We cannot say that the evidence is not sufficient to support the finding as to the want of
proper appliances. At least there is a substantial conflict of evidence with reference thereto,
and in such case the appellate court will not interfere. (Vietti v. Nesbitt, supra; State v. Yellow
Jacket, 5 Nev. 115; Clark v. Nevada L. & M. Co., 6 Nev. 203.)
The rule that the supreme court will not consider the weight of conflicting evidence has
been so often reiterated as to become somewhat monotonous. (McCoy v. Bateman and
Buell, 8 Nev. 126.)
That it is the duty of a railroad company to supply its road with such engines as will be
least liable to set fire and be reasonably safe from destroying property of others along its line,
is well settled. A railroad company is obliged to employ the best known appliances to
prevent injury to others from fire, and the failure to do so is want of ordinary care and
prudence. (Longabaugh v. V. & T. R. R. Co., 9 Nev. 271; Rogers v. Brighthope Ry. Co., 8
Am. & Eng. R. R. Cases, 710; Thompson on Negligence, 154-5.)
Rubbish on Right of Way: As to the finding that the defendant negligently omitted to keep
the said right of way free and clear of dry and combustible material along and adjoining said
land of plaintiff, and carelessly permitted the accumulation of large quantities of dry
grass and weeds on said right of way adjoining said land," we are of opinion it is
abundantly sustained by the evidence, which is without material conflict.
adjoining said land of plaintiff, and carelessly permitted the accumulation of large quantities
of dry grass and weeds on said right of way adjoining said land, we are of opinion it is
abundantly sustained by the evidence, which is without material conflict. The evidence is to
the effect that the rye grass grows right along the side of the track from eight inches to three
feet in height; that there was more or less dry stubble grass which had grown up in the center
and on the edges of the track on the right of way through plaintiff's said land; that there was
dry grass there all along the right of way; that it was not a foot from the end of the ties; that
the tall grass extended along the track the length of the field; that at the place of the fire there
was quite a bunch of rye grass more than at any other place along the line; that it was four or
five feet high; that when the fire occurred this grass was very dry, as dry as it could be, and
would easily take fire; that in the fall of the fire it had not been cut off any further than the
end of the ties; that there was dry grass all along the right of way there, fifty feet on each side
of the railroad, that was not cut, and that the dry grass they had cut between the rails was left
there and would easily ignite.
We are of opinion that we are justified in saying that it is common knowledge, based on
common observation in this railway age, that railroad engines of the most approved
construction and with the best known appliances, and managed by the most skillful engineers
and firemen, are liable to and do frequently, from necessity or by accident, emit sparks and
fire capable of igniting dry rubbish or combustible matter along their pathway, and thus place
the property of adjoining owners in imminent danger of destructive conflagrations and
frequently cause the destruction of such property.
A railroad company may be supplied with the best engines and most approved apparatus
for preventing the emission of sparks, and operated by the most skillful engineers; it may do
all that skill and science can suggest in the management of its locomotives; and still it may be
guilty of gross negligence in allowing the accumulation of dangerous combustible along the
track, easily to be ignited by its furnaces and thence communicated to the property of
adjoining owners."
owners. (Medley v. Richmond and Danville R. R. Co., 7 Am. & Eng. R. R. Cases, 493; 75
Va. Rep. 498.)
The general rule is that a railroad company must keep its track and right of way
reasonably clear of all such substances as are liable to be ignited by sparks or cinders from its
engines. (Eddy et al. v. Lafayette et al., 49 Fed. Rep. 807; 8 Am. & Eng. Ency. 14; Kellogg
v. Chicago R. R. Co., 26 Wis. 223; Jones v. Mich. Cent. R. R., 59 Mich. 437; Black v.
Railroad, 115 N. C. 667.) A railroad company must be diligent in keeping its track clear of
such combustible matter as is liable to be easily ignited. (Longabaugh Case, supra.)
What Caused the Fire? We are of opinion that the evidence reasonably supports the
finding that it was caused by fire from the defendant's engine. The testimony of the plaintiff is
to the effect that, in passing up and down the railroad, he frequently saw trains pass and
within an hour or so thereafter had seen the sagebrush and dry grass on fire, and he had seen
fires started immediately after the train had passed; that he saw it thus in September, about a
month before the fire in question; that he frequently saw ties burnt in the center along the
track; that he saw coals scattered along the railroad, etc. Watt, Jr., testified to the same effect
and that he was at the fire on the Watt ranch in about two hours after the train had passed;
that he went to where the fire started and investigated it; that in his opinion the fire started
right along the railroad track; that he could see coals on the edges of the rails in many places;
that the wind was blowing from the railroad towards the stacks of hay; that the fire widened
from the track across the meadow to the stacks; that in his opinion the engine set the fire, and
nothing else.
Fred Steiner, whose ranch adjoins the plaintiff's ranch, testified, in effect, that he had seen
many fires kindled by passing engines ever since the road was built; that he and his family
always kept watch for fires when the trains passed his place, and had put out many fires set by
the engines; that in the latter part of September, a short time before the Watt fire, the engine
(No. 1) set six fires on his ranch in passing along a distance of a mile or a mile and a half.
O'Donald testified that in December, after the fire at Watt's ranch, he put out two fires
that had been set by the engine on this ranch, near the track and near the place where
the fire occurred in on the 11th day of October, before.
Watt's ranch, he put out two fires that had been set by the engine on this ranch, near the track
and near the place where the fire occurred in on the 11th day of October, before.
Walter Davis testified, in substance, that he was engineer on this road for about two years
and a half, and up to February, 1893; that he ran engines No. 1 and No. 5 from the start, then
No. 1 and No. 2; that he frequently set fires by these engines along the road; that he had set as
many as twelve to fifteen in a trip; that about two years ago he set fire to Watts' meadow,
where the late fire occurred.
We are of opinion that the evidence affords reasonable presumption and inference that the
defendant's engine was the agent that set the fire that destroyed the plaintiff's property,
especially in the absence of evidence tending to point to any other agency or probable agency.
In Gibbons v. Wisconsin Valley Ry. Co., 25 Am. & Eng. R. R. Cases, 479, the circumstances
and evidence tending to show the origin of a fire are very much like these of the present case,
and the court held that they were sufficient to justify the finding of the jury that the fire was
set by the locomotive.
The Number of Tons of Hay: The court found that the number of tons of hay destroyed was
976. There were several modes adopted on the part of plaintiff at the trial in arriving at the
estimated amount of hay.
First: The plaintiff testified, substantially, that he should think he stacked in 1890, 250
tons; that in 1891 he thought he stacked in the neighborhood of the same amount; that in
1892 he thought it was over 300 tons, or in that neighborhood; in 1893 he thought perhaps he
stacked in the neighborhood of 200 tons; that he did not take any measurements only from
observation; that he did not handle the business himself; that he might have been there, off
and on, while the hay was being put up, but never stayed any length of time.
Second: That he should judge that there were some 150 to 175 acres of hay land,
somewhere along there; that he never measured it; that in a good year he thought you could
get two tons or over of hay to the acre; that in 1891 and 1893 the crops were not so good as
in 1890 and 1892; that two tons would be a fair average yield. Watt, Jr., who harvested the
hay each of the four years, estimated the number of acres of hay land at 150 to 165, and
the yield per acre at 1-3J4 to 2 tons.
harvested the hay each of the four years, estimated the number of acres of hay land at 150 to
165, and the yield per acre at 1-3/4 to 2 tons.
Third: Estimates were made by Watt, Jr., from his recollection of the number of loads of
hay hauled and stacked each year of the four years and from the estimated weight of each load
as guessed at by him and the boys who helped in the harvesting.
Fourth: Watt, Jr., testified to the measurements he made of the length and width of the
burned ground where the several stacks had been standing, and to his estimate of the height of
each stack; that he estimated that the stacks would each square 16 feet high, and from these
measurements and estimated heights he calculated 976 tons. Dennis Scully, a surveyor,
measured the height of the two stacks of Fred Steiner on an adjoining ranch, and found one to
be 10-1/2 feet and the other 11 feet. Fred Steiner testified that he had taken notice of Watt's
stacks a short time before they were burned; that a part of them probably was as high as his,
but that he did not think they would average as high as his. Watt, Jr., testified that he was
quite familiar with Steiner's stacks; that he thought some of Watt's were a little higher than
Steiner's; but that they were about the same, just about the same. And yet his calculation is
based partly on 16 feet as the height of the Watt stacks, although the accuracy of Scully's
measurements of the Steiner stacks was not questioned at the trial or in this court. If the
Scully measurements of these stacks and the observations of Steiner and Watt, Jr., as to the
relative height of the two sets of stacks can be relied on as being approximately correct, then
the calculation of 976 tons, based on the measurement of the burnt ground where the stacks
stood, and the estimated height of the stacks, 16 feet, gives a result too much by 5/16 of 976,
or by 305 tons. There is nothing in the record by which it may be inferred that either the
plaintiff or Watt, Jr., had any particular object in wishing to know the number of tons they put
up each year, until after the hay was destroyed, or that they had, or retained in mind, very
reliable data on which to base their several calculations, and it could not be expected that
their conclusions under such circumstances would be very accurate.
stances would be very accurate. Certain of their estimates, when tested by actual survey and
measurements, are found to be very wild. Taking all the testimony given, and estimates made,
on the part of the plaintiff, they would, doubtless, be sufficient to support the finding of 976
tons of hay as against other evidence of similar character and of no greater degree of
certainty. But Dennis Scully made a survey of the meadow land for the defendant, and, when
he was put on the witness stand, counsel for the plaintiff stated to the opposing counsel and to
the court as follows: Without going into an extensive examination, I will admit right here
that Mr. Scully is a first-rate surveyor and a faithful man. Mr. Scully produced a plat of his
survey of the hay land on Watt's Reese river ranch, and briefly testified in explanation
thereof and to its correctness. No suggestion was made that the survey as to the contents of
the hay land was not correct, until it came to the argument of the case by briefs. Then counsel
for plaintiff in the court below, and in argument in this court, claimed that Mr. Scully did not
know the boundaries of the meadow except as they were pointed out to him by Mr. Cox and
Mr. Murdock, and that there is no evidence that these lines were correctly pointed out to him.
But in this contention we cannot agree with plaintiff's counsel. It is clear from the testimony
of Mr. Scully that what were pointed out to him were the several designated places marked on
the plat, to wit: Fire first discovered, and Boundary line of fire, and End of hay stacks,
which are no part of the survey of the contents of the meadow land. Besides, we are of
opinion that a competent surveyor and reliable man could have no great difficulty in finding
and tracing the boundaries of a tract of hay land that produces two tons of red-top hay to the
acre. Mr. Scully found by his survey that the meadow or hay land contained 91.2 acres. The
evidence of Mr. Watt and Watt, Jr., shows, and the court found, that of the hay land four acres
were never cut. This leaves 87.2 acres from which the plaintiff's hay was harvested. Taking
the 87.2 acres as a basis in connection with two tons of hay to the acre as the annual product,
which the plaintiff testified would be a fair average yield, and which was corroborated by
Watt, Jr., and a nearer approach may be had and a more reliable result be obtained as to
the actual number of tons destroyed than by any of the uncertain methods adopted by the
plaintiff at the trial.
a nearer approach may be had and a more reliable result be obtained as to the actual number
of tons destroyed than by any of the uncertain methods adopted by the plaintiff at the trial.
Notwithstanding the well-established rule which has been so often announced by this and
other courts that, where there is a substantial conflict in the evidence the appellate court will
not disturb the decision of the court below, there is another rule as well established and of as
binding force, both in actions at law and in equity, addressed to the conscience and judgment
of the court of last resort, which cannot be ignored without doing violence to the plain
principles of common justice in many cases, to wit: If there be no substantial conflict in the
evidence upon any material point and the verdict or decision be against such evidence upon
such point, or where the verdict or decision strikes the mind, at first blush, as manifestly and
palpably contrary to the evidence, the supreme court will direct a new trial. (Hayne, New
Trial and Appeal, sec. 288, and citations; Barnes v. Sabron, 10 Nev. 217.)
The duty of the supreme court to look into the evidence and grant a new trial in cases
where it appears that the evidence taken all together does not support the verdict or decision
or judgment of the court, is made clear by Stats. 1893, p. 88, as authoritatively construed in
Beck v. Thompson, 22 Nev. 121. In that case the court, while recognizing the rule applicable
in case of conflict of evidence as given above, said: As already remarked, this statute (1893)
has worked an important and quite radical change, and in a proper case, without regard to
whether there are or are not findings, seems to impose upon this court the duty of reviewing
the evidence, and determining whether the final result is supported by it. This statute was
undoubtedly designed to cut through many technicalities that have so often prevented cases
from being considered upon their merits, and should be construed in the same broad spirit in
which it was enacted, but at the same time with such conversatism as will not result in the
reversal of a case where substantial justice has been done. * * * Where there is a substantial
conflict in the testimony, the appellate court should undoubtedly not substitute its judgment
for that of the trial court, and should only interfere where, upon all the evidence, it is
clear that a wrong conclusion has been reached."
not substitute its judgment for that of the trial court, and should only interfere where, upon all
the evidence, it is clear that a wrong conclusion has been reached.
We are of opinion that the uncertain estimates and calculations made on the part of the
plaintiff to ascertain the quantity of hay destroyed, on which the finding of the court was
based, cannot be considered as reaching the rank of conflicting evidence with the actual
number of acres of hay land, as ascertained by a reliable survey of the ground, and the fair
average yield of two tons per acre, as admitted by the plaintiff. A sense of justice impels us to
hold that the evidence given at the trial is insufficient to support the finding of 976 tons, or of
any greater number than 697.6 tons, and we are satisfied that the latter number is a very
liberal allowance in favor of the plaintiff.
The Value of the Hay: The court found that the value of the hay destroyed was $10 per ton,
and assessed the damages for its destruction at that sum. That the value of the hay at the time
and place when and where it was destroyed is the criterion of damages in this case is not
disputed by the parties, but there is a radical difference between them as to what that value
was, and as to the rules to be adopted in arriving at the value. It is claimed by plaintiff's
counsel that the value of a thing is that which it takes to replace the thing at the time and
place when and where it was to be delivered, or where and when it was taken or destroyed;
that the value of the hay in question was the sum of money that it would have required to
replace the same quantity and quality of hay in stack on the plaintiff's ranch; and, therefore,
that the plaintiff is entitled to recover the value in the nearest market and the cost of
transportation to his ranch with other necessary expenses to replace the hay. He cites several
authorities to sustain his contention. The counsel for defendant denies the correctness of these
propositions as applied to this case and also cites several authorities.
Doubtless, the rules adopted in the respective cases cited by plaintiff's counsel were
applicable to the facts and circumstances of those cases, but we fail to see their applicability
to the state of facts of the present case.
Evidence of the cost of an article may be an element of proof to be considered in arriving
at its value. In the case at bar, if the cost of producing the hay had been shown, it would have
been proper for the court to have considered it as evidence tending to show value; and if there
were no other facts incident to the condition of things involved calculated to affect the
question of value, or which would outweigh such cost in arriving at a valuation, the court
might have properly fixed the value at such cost. The cost of an article may be inconsiderable,
and yet its value great; and its value may be trivial, and its cost great. Because the cost of
substituting property is a certain sum, it does not necessarily follow that the value of the new
property is the same sum, nor that the value of the original property is the cost of substituting
other like property in its place.
How the cost of substitution of other property can add to or detract from the value of the
property for which the substitution is made, we are unable to perceive.
It is well settled that the cost of replacing other property for property destroyed is not the
criterion of damages, but it is the actual value of the property at the time and place it was
destroyed. (Burke v. Louisville, etc., 7 Heisk. 451; 17 L. A. R. 60; Wylie v. Smitherman, 7
Ired. 236; 1 Suth., 2d ed., 12, 105; Sedg., 40, 428.)
But where the value of the property destroyed is the criterion of the amount of damages to
be awarded, and the property had no market value at the place of its destruction, then all such
pertinent facts and circumstances as tend to establish its real and ordinary value at the time of
destruction are admissible in evidence; such facts as will furnish the jury or court with such
pertinent data as will enable them reasonably and intelligently to arrive at a fair valuation, and
are all elements of proof to be considered by them. (Jacksonville, Tampa and Key West
Railway Company v. Peninsular Land, Transportation and Manufacturing Company, 27 Fla.
1; 17 L. R. A. 33.)
If the article in question has no market value, its value may be shown by proof of such
elements or facts affecting the question as exist. Recourse may be had to the items of cost,
utility and use. (Suth. 654, 378.) If the property of which the owner is deprived is a
marketable commodity, its market price is the value he is entitled to recover. {Sedg., 433;
Sullivan v. Linn, 23 Fla. 473; Suth., 109S.)
of which the owner is deprived is a marketable commodity, its market price is the value he is
entitled to recover. (Sedg., 433; Sullivan v. Linn, 23 Fla. 473; Suth., 1098.) The market value
will govern rather than any special value to the owner. (Suth., 1113; Brown v. Allen, 35 Iowa,
306.)
In this case the value of the hay destroyed is the criterion of damages, and there was no
market at the ranch where it was destroyed. The hay was produced on the plaintiff's land. The
plaintiff testified to the effect that he stored the hay in stack each of the four preceding years
in order to have it in case of a recurrence of a severe winter, such as was experienced in
1889-90, in which he lost $100,000 worth of stock, of which he could have saved $50,000
worth if he had had on hand the hay in question; that he intended to continue to store hay for
that purpose for an indefinite number of years; that if a hard winter did not come in ten years
he would have ten years' accumulation of hay on hand; that if the hay had not been destroyed
he would have continued to keep it till a hard winter did come; that he had no other use for it
whatever; that if a hard winter did not come he might be compelled to use it, or some of it, at
some time in the indefinite future, on account of the increase of his stock; that this was a
possibility, as his stock was increasing rapidly; that he had not used any of the hay, and had
no need to use it since he commenced storing it in 1890, which was four years before.
According to the plaintiff's own showing it is manifest that the hay had no value for
present use as feed for his stock. What facts or circumstances are there disclosed that would
furnish such pertinent data to a court or jury as would enable them reasonably and
intelligently to arrive at a fair valuation for future use as feed for his stock? If there be any
element of proof of value for such future use, it is so hedged about with simple conjecture,
uncertainty and speculation, and so environed with matters problematic, as to be incapable of
making an intelligent impression upon the common judgment as to what that value would be.
There must be proof of value or evidence of such facts as will warrant a deduction of the
value with reasonable certainty. Neither courts nor juries are permitted to assess values on
conjecture.
values on conjecture. Value must be ascertained by a money standard and based on evidence,
not on conjecture. (Traloff v. New York Central, 10 Blachf. 16; Sedg., 172.) Compensation
cannot be based on mere conjectural probability of future loss. (Chicago Ry. Co. v. Henry,
142 Sedg. 244.) Prospective damages are allowed only on proof that they are reasonably
certain to occur. (Clarke v. The Nevada L. & M. Co., 6 Nev. 203.)
Where a plaintiff claims compensation for consequences of an injury which he has not yet
experienced, he must prove with reasonable certainty that such consequences are to happen.
(DeCosta v. Mass. M. Co., 17 Cal. 613; Fry v. Dubuque Ry. Co., 45 Iowa, 416; Lincoln v.
Saratoga R. R. Co., 23 Wend. 425; 6 Nev. supra.)
It is evident that the plaintiff in this case has sustained no damages, as yet, by reason of the
destruction of his hay, beyond the value of the hay in the market. To allow him other damages
would be giving him compensation for conjectural consequences, which is not allowable.
(Sedg., 888, 937.) It would be compensation for conjectural consequences based on
conjectural value. As the hay had no value for present use, and no ascertainable value for
future use, as feed for plaintiff's stock, its value was no more and no less than if it had been
the property of A., raised and stored at the same place, A. having no stock.
That the market at Austin must be looked to for a solution of the question of the value of
the hay, we understand, the counsel are agreed. At Austin, 37 miles distant by rail, there was a
market for baled hay. The plaintiff's counsel, however, claims that the cost of transportation
of the hay from Austin to the plaintiff's ranch, and other expenses such as unbaling and
stacking it, should be added to the Austin market price in assessing the damages, while the
defendant's counsel maintains that the cost of baling to put it into marketable shape, and the
cost of transportation from the ranch to Austin, must be deducted from the market value at
Austin. The contention of plaintiff's counsel is based on the theory that the plaintiff did not
want to sell the hay, but wanted to keep it for his own use, but it appears that he did not want
to purchase hay either to keep for his own use in the place of the hay destroyed, for he
made no effort to do so, evidently for the reason that the cost would have greatly
exceeded the value of the hay.
the place of the hay destroyed, for he made no effort to do so, evidently for the reason that the
cost would have greatly exceeded the value of the hay. If the plaintiff can recover the cost of
buying and replacing other hay on his ranch, it is evident that he would recover a sum greatly
in excess of his loss, and that the fire would be the source of great profit, instead of being the
cause of loss. It seems clear that the plaintiff has sustained no loss beyond the value of the
hay in the market as a commodity for sale. And that value was the market price, less the cost
of putting into market. A sense of common justice constrains us to hold that the evidence
insufficient to sustain the finding that the value of the hay destroyed was $10 per ton.
The plaintiff based his testimony of the value of the hay on the alleged facts, substantially,
that he had stored it for future use in the event of a hard winter; that it would cost at least $20
per ton to replace it with other hay; that it was worth $20 per ton to him; that he would not
have taken less for it; that it was not for sale, and that it was worth more than river hay such
as was sold in the Austin market. But it is quite immaterial what use he would have made of
the hay in the future. The measure of damages is the market value. (Berry v. Dwinel, 44 Me.
255; Washington Ice Co. v. Webster, 68 Me. 451; Stevens v. Springer, 23 Mo. App. 375;
Smith v. Griffin, 3 Hill, 333.) What the owner would take for his property cannot be shown
as proof of its value. (Sedg., 1294; Kiernan v. Chicago Ry. Co., 123 Ill. 188.)
The price at which property would sell under special and extraordinary circumstances is
not to be considered, but its fair cash market value if sold in the market under ordinary
circumstances, and assuming that the owner is willing to sell and the purchaser is willing to
buy. (Brown v. Calumet R. R. Co., 125 Ill. 606.) In an action against a railroad company to
recover damages for hay destroyed by fire set by defendant's locomotive, the measure of
damages is the market value of the hay where burned. In case there is no local market, the
value is properly fixed by the value at the nearest market, deducting the cost of
transportation. (Lafayette v. Eddy et al., Trustees Mo. Kan. & Tex. Ry. Co., 49 Fed. Rep.
807.)
As there is testimony tending to show that the hay destroyed was of better quality than the
river hay sold in the Austin market, this evidence should be considered, in connection with
the Austin market for river hay, in arriving at the value of the plaintiff's hay. This hay was a
marketable commodity, and therefore its market value at the time it was destroyed is the
measure of damages. If there was no market for it where it stood, there was one at Austin,
which was within reach, and to which hay had sometimes been shipped from this section. In
the absence of a showing that it had any greater market value where it was situated, its value
in the Austin market, less the cost of transportation, must control.
The Hay Press: The value of the hay press was fixed by the finding at $200, the sum
alleged in the complaint. We do not think this finding is supported by the evidence. We find
no evidence in the record tending to show any greater value of the press than its cost at
plaintiff's ranch.
The judgment and order appealed from are reversed and new trial granted.
ON PETITION FOR REHEARING.
By the Court, Bonnifield. J.:
The plaintiff has petitioned for rehearing on the ground that it is probable that the court in
its decision has arrived at an erroneous conclusion and overlooked important questions which
were necessary to be considered in order to arrive at a full and proper understanding of the
case; and on the ground that petitioner verily believes that the court upon such rehearing will
come to different conclusions from those announced in its former decision.
Counsel argues at great length that the court erred in its conclusions on all points wherein
the decision was adverse to plaintiff's contention. The matter of the quantity of hay destroyed
we will not further consider, but briefly notice counsel's contention as to measure of the value
of the hay.
The case is reported in 44 Pac. Rep. 423, in which, after thorough and deliberate
consideration, we held that: In the absence of a showing that it had any greater market value
where it was situated, its value in the Austin market, less the cost of transportation, must
control."
value where it was situated, its value in the Austin market, less the cost of transportation,
must control.
The plaintiff tried the case in the court below upon the theory, and his counsel contended
there and on appeal, and now contends in his petition, that, as the plaintiff had harvested and
stored the hay for use in the event of the occurrence of a hard winter like that of 1889-90, in
which he lost $100,000 worth of stock, and could have saved $50,000 worth with the amount
of hay defendant destroyed, the true measure of the value of the hay is such a sum of money
as it would require to place on plaintiff's ranch the same quantity and quality of hay as that
destroyed. He claimed on appeal from the evidence that no hay of the same quality as that
destroyed could be procured at any place nearer than Carson valley. There is no evidence in
the record of what the cost would have been to have bought and shipped hay from that place
to replace the hay destroyed. He argued that, taking Austin as the supply point, there must be
added to the Austin market price the cost of transportation from Austin to plaintiff's ranch,
and the difference between the value of the plaintiff's red-top hay and the common river hay
sold at Austin, and thus he figures the value of the hay destroyed at $32 50 per ton.
While we may admit that the sum of $32 50 per ton is a correct result of his theory, there is
not ingenuity of argument, however learnedly and lengthily it may be presented, that can
cover up from the ordinary mind the fallacy of the theory as applied to the facts and
circumstances of this case. The fact that the plaintiff only claimed $15 per ton in his
complaint or was allowed only $10, or now claims only the latter sum, does not relieve his
theory of its fallaciousness as a guide in arriving at the value of $10, or any other sum, per
ton.
If the value of the destroyed hay is to be based on what the value of like quantity and
quality would be for use in the contingency of such a winter as plaintiff claims, then $50,000
would not be an unreasonable valuation for it.
He testified and his counsel argues that he could have saved $50,000 worth of stock in the
hard winter named with the amount of hay the defendant destroyed. If that be so it is as
probable that such amount and quality of hay would be worth that sum in the event of
such another winter as that such winter will again occur.
it is as probable that such amount and quality of hay would be worth that sum in the event of
such another winter as that such winter will again occur. But as neither history nor tradition
furnishes any evidence of the occurrence in the past of such another winter as that of 1889-90
within the borders of this state outside of the Sierra Nevada mountains, we are of opinion that
such contingent value is not the criterion by which it is to be determined what the plaintiff's
hay was worth in 1893.
Counsel informs us that for the purpose of providing against future deep snows the stock
farmers commenced in 1889-90, and continued every year since, to store up all the hay they
could for such purpose. But we are not so informed by the record, or otherwise, except as to
the plaintiff. If the theory or contention be true that red-top hay is worth $32 50 per ton for the
purpose of storing for use in the event of the coming of a winter like that of 1889-90, and the
farmers find it out, there ought to be great revival in the hay business. That the value of the
hay destroyed was not $50,000 in the aggregate, or even $32 50 per ton, we think counsel will
not deny; if not, he must admit that any theory of which either sum is the logical result as to
the value must be erroneous, and should be discarded in this case.
Petitioner asks the court, in the event of its adhering to its conclusions heretofore arrived
at, to terminate this litigation by ordering such judgment as it deems proper with the usual
alternative that the plaintiff accept it or suffer a new trial. In view of the necessary costs and
expenses to which the parties would be subjected by a new trial, we are inclined to grant the
request.
Mr. Van Patton, defendant's witness and engaged in the livery business at Austin, testified
that the market value of hay in bale in Austin was $12 per ton in the fall of 1893. Other
witnesses gave the value at $10 to $12. Exhibit 6 in evidence, being a schedule of railroad
freight rates, gives the rate of $3 per ton for hay from Canyon and Vaughn's and points
between to Austin. Walter's, or plaintiff's ranch, is between Canyon and Vaughn's. There is
no siding at Walter's, hence hay at plaintiff's ranch would have to be hauled by wagon to
Canyon or Vaughn's, where there are sidings, for shipment by rail to Austin.
sidings, for shipment by rail to Austin. Canyon is the nearest station and distant three or four
miles from plaintiff's ranch, or Walter's station.
We find no evidence as to the cost of hauling hay from Walter's to either siding, but
plaintiff's counsel in his brief put it at $1 per ton from the siding to the ranch. So we will
consider $1 per ton reasonable cost for hauling from the ranch to the siding where it could
have been loaded on the cars. It is in evidence that the rate for hauling general merchandise
from the Austin depot into town is $2 50 per ton, and that the cost of baling hay was about $2
per ton. Taking the above items of cost as approximately correct for putting hay into the
Austin market from plaintiff's ranch the total cost would be $8 50 per ton. As there is
evidence tending to show that the plaintiff's hay was worth more than the common river hay
sold in Austin, we are of opinion that it is reasonable to conclude that his hay was worth the
highest market price, $12 per ton.
We are of the opinion that the evidence would sustain a finding for a net market value of
$3 50 per ton, and no more. The evidence is that the hay press cost $80 in Caleco, Lake
valley, and the value of the labor in hauling it to his ranch the plaintiff puts at $25 or $30. We
are of opinion that the evidence would support a finding of $110 as the value of the press, and
no more. The $100 damages assessed for injury to the meadow land we think the evidence
justifies.
We are of opinion that the plaintiff is entitled, under the evidence and the law applicable to
the case, to a judgment for the value of 697.6 tons of hay, at $3 50 a ton; for the value of the
hay press, $110, and for damages to the meadow land $100, amounting to $2,651 60, with
legal interest from date of original judgment, besides the cost of suit, taxed at $1,289 70 in
court below.
The judgment of this court herein is modified so as to read as follows:
It is therefore ordered that the plaintiff have twenty days from the filing hereof to file in
this court a release of all damages claimed in this action, except the sum of $2,651 60, with
legal interest thereon from April 10, 1895, till paid, and that upon filing such release in due
form within said twenty days, the judgment of the trial court be affirmed in said sum of
$2,651 60, with interest as aforesaid, and costs of the court below in the sum of $1,2S9
70; but in default of filing such release that the judgment of the district court and the
order denying a new trial be reversed and a new trial granted.
that upon filing such release in due form within said twenty days, the judgment of the trial
court be affirmed in said sum of $2,651 60, with interest as aforesaid, and costs of the court
below in the sum of $1,289 70; but in default of filing such release that the judgment of the
district court and the order denying a new trial be reversed and a new trial granted. And it is
further ordered that appellant recover its costs on appeal.
Ordered, that the remittitur be stayed fifteen days to give appellant time to petition for
rehearing if it desires to do so.
The appellant has petitioned for a rehearing in so far as the judgment of the court below
was affirmed in the sum of $2,651 60 (45 Pac. Rep.), claiming that said sum is too much by
$896 25.
Counsel say: The court below made its findings on the question of costs of transportation
from Watt's ranch to Austin, exclusive of the cost of baling as follows: The cost of
transportation from Watt's ranch to Austin was not less than $8 dollars per ton, and the cost of
transportation from Austin to Watt's ranch was not less than $8 per ton, and the market value
of baled hay at Austin at about the time of the burning of plaintiff's hay was $10 to $12 per
ton.'
Counsel further say: This finding has not been questioned as to its correctness, either by
plaintiff or defendant. It has not been assigned as error, nor has this finding been specified by
counsel for defendant as unsupported by the evidence. It has not been assailed in any way by
either side and is therefore binding, under the authorities, and upon sound reason, upon this
court for all purposes of the case. Whether it be invoked for the purpose of reversing the
judgment, or relied upon in case a modification of the judgment shall be determined upon by
this court, it is absolutely binding on the court and litigant, because it has not been pointed
out as not supported by the evidence, nor assailed as a finding of fact in any way.
We, however, find among the errors as assigned by appellant's counsel in the statement on
motion for new trial, the following alleged error: That each and every part of each and every
finding of fact by the court is wholly unsupported by the evidence and against the evidence.
We also find that the appellant's notice of motion for new trial designates, as one of the
grounds, the insufficiency of the evidence to justify the decision of the court.
Our statute (1893, p. 89) with reference to motions for new trials, among other things,
provides: When the notice designates, as the ground upon which the motion will be made,
the insufficiency of the evidence to justify the verdict or other decision, it shall be sufficient
assignment of error to specify that the verdict of the jury, or the decision, or judgment, or
decree of the court, is not supported by the evidence or is contrary to the evidence. In such
case where it appears that the evidence, taken altogether, does not support the verdict, or
decision or judgment, or decree of the court, a new trial shall be granted or, upon appeal, the
case shall be reversed without regard to whether there are express findings upon all the issues,
or whether the specifications particularly point out the finding or findings, either express or
implied, that are not supported by the evidence or are contrary thereto.
Under the above facts and the statute, this court is not bound by the finding of the lower
court with reference to the cost of transportation of the hay unless it finds that the evidence
supports such finding. The force of this finding is no greater than any other finding of fact in
the case, but is exactly the same.
The petition for rehearing is denied.
____________
23 Nev. 183, 183 (1896) Comm'rs Washoe County v. Griswold
[No. 1456.]
BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Acting for the Use
and Benefit of the Inhabitants of the Town of Reno, Appellant, v. A. W. GRISWOLD,
Respondent.
TownsIncorporated and UnincorporatedLicense Tax.The act entitled An act providing for the
government of the cities and towns in this state (Stats. 1881, p. 68) and the act amendatory thereof (Stats.
1889, p. 43) apply only to unincorporated towns, and the fact that the proviso introduced by the
amendment is in terms confined to that class of towns, does not make any part of the act applicable to any
other class of towns.
Appeal from the District Court of the State of Nevada, Washoe county; A.E. Cheney,
District Judge:
Action by the Board of Commissioners of Washoe county, for the use and benefit of the
inhabitants of the town of Reno, against A. W. Griswold, to recover a license tax on his
business of expressman. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
F. H. Norcross, District Attorney, for Appellant:
I. There can be no question that, after the act of March 5, 1887 (Stats. 1887, p. 117), the
board of county commissioners of Washoe county had the power and authority to levy a
license tax upon defendant's business in the town of Reno. Had not the ninth subdivision of
section 1 of the act of February 26, 1881 (Stats. 1881, p. 68), been amended as it was by the
act of February 25, 1889 (Stats. 1889, p. 45), there would still be no question of the right of
the board of county commissioners of Washoe county to make or enforce a license tax upon
defendant's occupation in the town of Reno.
II. The section was amended by inserting in the ninth subdivision the following:
Provided, that in all unincorporated cities and towns in this state the board of county
commissioners shall have power to fix and collect a tax upon the following places of business
and amusements, as follows, to wit: circus, caravan, etc., respondent's occupation not being
included in the amendment.
III. Towns and cities in this state are either incorporated or unincorporated, and a
disincorporated town or city is not different from an unincorporated town or city so far as
its status under the laws of this state is concerned.
or unincorporated, and a disincorporated town or city is not different from an unincorporated
town or city so far as its status under the laws of this state is concerned. (Sections 1 and 8, art.
VIII, of State Constitution; City of Virginia v. Chollar-Potosi M. Co., 2 Nev. 86; State v.
Rosenstock, 11 Nev. 128.)
IV. The ninth subdivision of section 1, as well as the entire act of February 26, 1881,
applied to unincorporated towns only. It could never have been the intention of the legislature
that the provisions of the ninth subdivision of section 1 of the act in question should apply to
other than unincorporated towns and cities, for all incorporated towns and cities had a similar
provision in their special acts of incorporation. This view of the case is supported by the
provisions of sections 1 and 8 of article VIII of the constitution; the circumstances
surrounding the passage of the act (it being concurrent with the passage of the acts repealing
the acts incorporating Virginia, Gold Hill and Austin); the subsequent acts of the legislature
of 1887 (Stats. 1887, p. 51, 117); the provisions of all the special acts of incorporation; also,
the rule of statutory construction that, when the language admits of two constructions, one of
which would render it constitutional and valid, and the other unconstitutional and void, that
construction should be adopted which will save it. (V. & T. R. R. Co. v. Henry, 8 Nev. 165.)
V. The ninth subdivision of section 1 of the general act of February 26, 1881, together
with the proviso contained in the amendatory act of February 25, 1889 (Stats. 1889, p. 45),
being re-enacted or passed at the same time, no portion has precedence over any other in
point of time, and one portion, because of its later enactment, cannot be said to repeal the
other. But it is claimed that the provision inserted in the ninth subdivision prohibits the
boards of county commissioners from levying or collecting a license tax in unincorporated
towns and cities upon any place of business and amusement other than those enumerated in
the proviso inserted by the amendment. If this is true, then the other portion of the ninth
subdivision, if it has any force at all, must refer to incorporated towns and cities, which, prior
to the amendment, referred to unincorporated towns. This view must be taken, or else the
legislature intended the former portion of the ninth subdivision to apply to
disincorporated cities.
view must be taken, or else the legislature intended the former portion of the ninth
subdivision to apply to disincorporated cities. But either way it would amount to special
legislation in an act that must be general,
VI. A careful consideration of the entire act, the circumstances of its passage, its evident
object, and the effect which a literal translation of the word unincorporated will have upon
the operation of that part of the act relating to the fixing and collecting of licenses, will force
the conclusion that the legislature fell into a very common error of using the word
unincorporated or incorporated out of the proper meaning.
VII. It is very probable that the legislature did not intend the word unincorporated, in
the act of February 25, 1889, to be used in its strict and proper sense; that it intended the
proviso inserted in the ninth subdivision of section 1, referring to unincorporated towns and
cities, to refer to those towns that were not governed either by special acts or had not availed
themselves of the provisions of the general act. If this view is correct, then the proviso in
question does not apply to the town of Reno.
Goodwin & Dodge and Thomas E. Haydon, for Respondent:
I. The powers of the board of commissioners of a county were expressly limited by the
proviso in the ninth clause of section 1 of an act to amend an act entitled An act providing
for the government of the towns and cities of this state, approved February 26, 1881,
approved February 25, 1889, which proviso is found on page 45 of acts of 1889.
II. Defendant's job or express wagon does not come within the class of occupations that
can be required to pay a license under the proviso, so the complaint against him does not state
and cannot be made to state any cause of action.
Plaintiff sued defendant to recover the amount of a license tax upon his business of
draying or expressing in the town of Reno, imposed by an ordinance alleged to have been
made under the provisions of an act entitled An act providing for the government of cities
and towns in this state (Stats. 1881, p.
p. 68), and the act amendatory thereof (Stats. 1889, p. 43). Defendant, answering, set up
several defenses.
Thereafter the cause was certified by the justice's court, in which it originated, to the
district court, upon the ground that a question touching the legality of a tax was involved.
Upon the trial the district court found as a conclusion of law that the board of commissioners
had no authority to enact the ordinance, and rendered its judgment dismissing the action.
Plaintiff appeals.
If the conclusion found by the district court is correct, the judgment must be affirmed
irrespective of other defenses which have been interposed.
The powers of the county commissioners as defined in the ninth subdivision of section 1
of the above-mentioned act are as follows (the amendment of 1889 being included in
brackets):
NinthTo fix and collect a license tax upon and regulate all places of business and
amusement so licensed, as follows, to wit: Artisans, artists, assayers, auctioneers, bakers,
bankers, barbers, billiard tables, boiler makers, boot and shoe makers, bowling alleys,
brokers, factors and general agents, commission merchants, circus, caravan or menagerie,
concerts and other exhibitions, dance houses, saloons or cellars, express and freight
companies, foundries, gaming, hawkers and peddlers, hay yards, wagon yards and corrals,
hotels, boarding houses and lodging houses, illuminating gas, electric light, insurance agents,
job wagons, carts and drays, laundries, livery and sale stables, lumber yards, manufacturing of
liquors and other beverages, manufacturers of soap, soda, borax or glue, markets, merchants
and traders, newspaper publishers, pawnbrokers, restaurants and refreshment saloons,
bar-rooms, shooting galleries, skating rinks, solicitors, drummers, mercantile agents, stage
and omnibuses, stock brokers, telegraph companies, theaters and melodeons, undertakers,
wood and coal dealers, having due regard to the amount of business done by each firm or
person so licensed; to license, tax and regulate, prohibit and suppress all tippling houses,
dram shops, public card tables, raffles, hawkers, peddlers and pawnbrokers, gambling houses,
disorderly houses and houses of ill-fame; [provided, that in all unincorporated cities and
towns in this state the boards of county commissioners shall have power to fix and collect
a tax upon the following places of business and amusements, and none other, as follows,
to wit: circus, caravan or menagerie, concerts, theatrical performances, melodeons and
other exhibitions, dance houses, wholesale liquor merchants, brewers, manufacturers of
liquors and beer, saloons, bars, bar-rooms or cellars, gaming and gambling houses,
hawkers and peddlers, junk shops, pawnbrokers, auctioneers, solicitors, drummers and
mercantile agents]; to levy and collect an annual tax on all dogs owned or kept within the
limits of said town or city, and to provide for the extermination of all dogs for which tax
shall not have been paid, and to prohibit the keeping of hogs or the running at large of
goats, cows or other animals within the limits of said town or city; to fix and collect a
license tax upon all professions, trades or business within said town or city not heretofore
specified."
cities and towns in this state the boards of county commissioners shall have power to fix and
collect a tax upon the following places of business and amusements, and none other, as
follows, to wit: circus, caravan or menagerie, concerts, theatrical performances, melodeons
and other exhibitions, dance houses, wholesale liquor merchants, brewers, manufacturers of
liquors and beer, saloons, bars, bar-rooms or cellars, gaming and gambling houses, hawkers
and peddlers, junk shops, pawnbrokers, auctioneers, solicitors, drummers and mercantile
agents]; to levy and collect an annual tax on all dogs owned or kept within the limits of said
town or city, and to provide for the extermination of all dogs for which tax shall not have
been paid, and to prohibit the keeping of hogs or the running at large of goats, cows or other
animals within the limits of said town or city; to fix and collect a license tax upon all
professions, trades or business within said town or city not heretofore specified.
There have been two general systems for the government of towns adopted by the
legislature. One was by separate charter incorporating the inhabitants of a designated locality
and authorizing the election of their own officers to administer local affairs. The other was by
general law empowering the boards of county commissioners of the county under specified
conditions to assume the management of the affairs and business of any town in their county.
At the session of 1879 the legislature provided a system of town government entitling the
act An act for the government of unincorporated towns in the state. Without stating its
details it is sufficient to say that it did not materially differ from the system that had been
established by the legislature in regularly chartered municipalities, except that the law did not
provide for the incorporation of the towns, and the officers were not selected by their own
citizens independently of the officials of the county.
This was followed by the act of 1881. (Stats. 1881, p. 68.) In it the same general plan was
adopted as in the act of 1879. No incorporation was provided for and it extended its
provisions to the towns that had been disincorporated.
This legislation shows that by the term unincorporated towns in the amendment was
meant such towns as had not been specially incorporated by separate charter.
been specially incorporated by separate charter. The entire act is intended to apply only to
unincorporated towns, and the fact that the proviso introduced by the amendment is in terms
confined to that class of towns does not make any part of the act applicable to any other class
of towns.
The proviso being the only change in the section as it originally stood, it is clear that this
was the sole purpose of the amendment, and that by it the legislature intended to restrict the
previously unlimited powers of the commissioners in the collection of licenses, to the kinds
of business enumerated in the clause added to the section.
As the defendant's business of draying or expressing is not enumerated in this clause, the
commissioners had no authority to impose a license tax thereon, and the judgment of the
district court must be, and hereby is, affirmed.
____________
23 Nev. 188, 188 (1896) Dennis v. Caughlin
[No. 1460.]
JOHN H. DENNIS, Appellant, v. W. H. CAUGHLIN,
Respondent.
ElectionsCanvass of BallotsBallots Tampered WithConflicting Evidence.In an election contest, the
finding of the trial court that the ballots in question have been tampered with after a canvass and return by
the election officers, will not be disturbed where the evidence is conflicting.
IdemBallots as EvidenceException to Rule.The rule that, as between the ballots and a canvass of them,
the ballots control, has no application where the ballots have been tampered with after they had been
deposited in the box.
Appeal from the District Court of the State of Nevada, Washoe county; George F. Talbot,
District Judge:
Action by John H. Dennis against W. H. Caughlin, to contest the latter's election to the
office of Sheriff of Washoe county. From a judgment in favor of defendant, plaintiff appeals.
Affirmed.
(Second appeal. For former opinion, see 22 Nev. 447.)
Thos. E. Haydon, for Appellant:
I. The well-established rule is that, where the ballots have been preserved in accordance
with law, the ballots themselves are the best evidence of the number of votes cast and for
whom cast.
themselves are the best evidence of the number of votes cast and for whom cast. (McCrary on
Elections, sec. 439, 3d ed., secs. 443, 445; Cooley on Constitutional Limitation, 6th ed., p.
788: Wheat v. Ragsdale, 27 Ind. 191; People v. Holden, 28 Cal. 123; Searle v. Clark, 34 Kan.
49; Ex parte Brown, 97 Cal. 89.)
II. The object of the law in preserving the ballots is to afford the means of impeaching the
returns of the election officers. (Ex parte Brown, 97 Cal. 89.) A ballot is to be construed as
any other writing. A ballot is the only expression of a voter's will, and it must be construed
according to its legal effect. (Rutledge v. Crawford, 91 Cal. 531.) In any election contest the
ballots are competent and material evidence of a very high order. (Gibson v. Board of
Supervisors, 80 Cal. 361.)
III. In an action to try the right to an office the list of ballots cast in any precinct, returned
with the poll list and tally paper, is better evidence of the number of votes cast at the precinct
and for whom cast than the tally list made from them by the officers of the election. (People
ex rel. Budd v. William Holden, 28 Cal. 132.)
IV. The presumption is that the clerk kept the ballots safely without change or mutilation.
If they were mutilated or changed, the burden of proof was on defendant to make proof of that
fact. (People v. Holden, 28 Cal. 133; Hartman v. Young, 11 Am. St. Rep. 797-798, and notes;
Coglan v. Beard, 65 Cal. 58; Ex parte Brown, 77 Cal. 90.)
I. The trial court did not err in ruling and deciding, under all of the evidence, direct,
circumstantial and otherwise, in the proceeding, that the ballots of Glendale precinct should
be discredited and that the certificate of the election board of the precinct constituted the best
and the controlling evidence of the number of votes cast for the different candidates for
sheriff in that precinct.
II. It seems to be the theory of appellant that it devolves upon respondent to prove that the
ballots have been tampered with in order to be permitted to rely upon the certificate of the
election board as the controlling evidence to the exclusion of the ballots.
the exclusion of the ballots. In this, the learned counsel is mistaken. The law recognizes the
fact that, in the very nature of things, it would generally be impossible to prove by direct or
positive evidence that ballots have been altered. Such work is always done secretly.
Therefore, the law has adopted the rule of presuming in the first instance that the election
officers have honestly performed their duties in certifying to the returns and it accepts such
returns prima facie as being correct. In order to lay the proper foundation for the admission of
the ballots as evidence superior to the election returns, or certificate of the election board, the
law requires that it be proved not only that the ballots have been continuously in the custody
of the proper officer, but also that they have not been so exposed as to afford an opportunity
for them to be tampered with by any one.
III. The danger that the ballots may be tampered with, after the count is made known,
especially if the vote is very close, is so great that no opportunity for such tampering can be
permitted. Such ballots, in order to be received in evidence, must have remained in the
custody of the proper officers of the law, from the time of the original official count until they
are produced before the proper court or officer, and if it appears that they have been handled
by unauthorized persons, or that they have been left in an exposed and improper place, they
cannot be offered to overcome the official count. (McCrary on Elections, 3d ed., 436; 6 Am.
and Eng. Ency. of Law, 425; People v. Livingston, 79 N. Y. 279; People v. Burden, 45 Cal.
241; Coglan v. Beard, 65 Cal. 58; Cooley's Const. Limitations, 625.) The governing rule was
well stated by Justice Brewer, now of the supreme court of the United States, while he was
upon the supreme bench of Kansas: (1) As to ballots cast at an election and a canvass of these
ballots by the election officers, the former are the primary and controlling evidence. (2) In
order to continue the ballots controlling as evidence, it must appear that they have been
preserved in the manner and by the officers prescribed by the statute, and that, while in such
custody, they have not been so exposed to the reach of unauthorized persons as to afford a
reasonable probability of their having been changed or tampered with.
having been changed or tampered with. (Hudson v. Solomon, 19 Kan. 177; Dorey v. Lynn, 31
Kan. 758; Kingery v. Berry, 94 Ill. 515.)
IV. Contestant's testimony certainly discloses an astounding negligence and insecurity in
the custody of the ballots, and upon such testimony alone the trial court would have been
amply justified in finding that abundant opportunity had been afforded for tampering with the
Glendale ballots, and that for such reason the certificate of the election board, made at the
time of their count, publicly, by the representatives of the various political parties, and in the
presence of the partisans of the different candidates, before it was known how close the
contest would be, constituted the best and the controlling evidence of the number of votes
cast in that precinct for the different candidates for the office of sheriff.
V. It is the function and province of the trial court or jury to determine, under all of the
evidence, whether the ballots or the certificate of the election board should be accepted as the
primary and controlling evidence, and the judgment thereof will not be disturbed by the
appellate court, if there is substantial evidence to support the judgment and decision. (Tebbe
v. Smith, 41 Pac. Rep. 455; McCrary on Elections, 3d ed., par. 437; People v. Livingstone, 79
N. Y. 279.)
This is the second appeal in this case (Dennis v. Caughlin, 22 Nev. 447). As stated in the
former opinion, the question is whether John Hayes or William H. Caughlin was elected
sheriff of Washoe county. The district court rendered judgment in favor of Caughlin. It was
admitted at the trial that Hayes had received 538 votes and Caughlin 527, exclusive of the
Glendale and Salt Marsh precinct returns, and 2 other ballots counted for defendant. The
errors assigned consist in these returns and the 2 ballots.
In our view it will be unnecessary to consider the rulings of the district court further than
the Glendale returns.
The count of the ballots of this precinct showed that Hayes received 35 votes, and
Caughlin 33. If these ballots be counted irrespective of other matters in the record Hayes
would be elected by 13 votes.
would be elected by 13 votes. On the other hand, the canvass by the election precinct officers
shows that Hayes received 24 votes and Caughlin 37 votes. This would elect Caughlin by 2
votes. The question then to be determined is whether the canvass by the election officers upon
the night of the election or the ballots themselves should have controlled the district court in
its decision.
It was shown at the trial that after the official canvass by the board of county
commissioners, and until the first trial, the ballots have been kept in a cupboard in the county
clerk's office. The cupboard had been selected by the clerk and his deputy as the most
secluded place for their keeping. They were enclosed in the envelope or package in which
they were originally received, and over this was sealed a slip or band of paper upon which the
name of the clerk was written. Old books and papers were placed over them for the purpose
of concealment. No one was supposed to have known where they were except the persons
mentioned, and apparently the package had not been disturbed when it was introduced in
evidence. The cupboard was unlocked, and persons connected with the office had keys to the
office door. On the other hand, evidence was adduced tending to show that there was some
feeling existing against the defendant at Glendale caused by his having been instrumental in
enforcing the law against fishing in that locality and arresting offenders against it. In counting
the votes by the board an unusual number of blank votes for the office of sheriff were noticed,
some witnesses placing the number from 10 to 12 and others at a less figure. During the
canvass, and when only a few ballots remained to be counted, a discrepancy of one vote was
noticed between the clerks in tallying the vote for sheriff. Thereupon the count for sheriff was
checked off from the commencement, and the mistake corrected. Upon this evidence the
court decided to accept the returns to the exclusion of the ballots.
The evidence being conflicting, we cannot disturb the ruling of the district court. In
support of the conclusion reached, it may be said that the checking off of the tally tended to
prove the correctness of the canvas and emphasized the fact of the large number of blank
votes for the office. It is significant that the ballots show but 3 blanks instead of the 10 or
12 to which witnesses had testified.
nificant that the ballots show but 3 blanks instead of the 10 or 12 to which witnesses had
testified. If this evidence was true, the inference is irresistible that the ballots had been
tampered with. In order to further satisfy ourselves in this court, we have compared the
ballots and the canvass upon nine other candidates, and our count substantially agrees with
the canvass. This fact lends additional support to the ruling of the district court.
In People v. Holden, 28 Cal. 123, the court said: Intrinsically considered, it must be
conceded by all that the ballots themselves are more reliable and therefore better evidence
than a mere summary made from them. Into the latter errors may find their way, but with the
former this cannot happen. The relation between the two is at least analogous to that of
primary and secondary evidence.
In Hudson v. Solomon, 19 Kan. 180, following the above case, the court said: As between
the ballots themselves, and a canvass of the ballots, the ballots are controlling. This, of
course, upon the supposition that we have before us the very ballots that were cast by the
voters.
Referring to this rule, Judge McCrary, in his treatise on Elections, says that it can have no
application to a case where the ballots have been tampered with after they were deposited in
the box. In such a case, the learned author says, the value of the ballots as evidence is
almost totally destroyed and the returns made by the officers of election presiding at the polls
may become better evidence than the ballots. (McCrary on Elections, sec. 439.)
It is unnecessary to consider the remaining errors assigned by appellant. Conceding they
should be decided in his favor, the result would not be changed.
Judgment affirmed.
____________
23 Nev. 194, 194 (1896) Streeter v. Johnson
[No. 1459.]
J. C. STREETER, Respondent, v. HIRAM JOHNSON, W. H. REMINGTON, W. H.
SWEENEY, and MINNIE D. FOLEY, Administratrix of the Estate of M. D. Foley,
Deceased, Appellants.
PracticeRecord on Appeal.Papers not properly in the record on appeal will be stricken out on motion. Stats.
1895, p. 58, permitting original papers to be certified upon appeal, have not changed the method of
presenting questions in the supreme court.
Chattel MortgageSufficiency of Description.A description in a chattel mortgage, that it covers all other
property of a personal nature belonging to said mortgagor which is situated in either Elko or Eureka
counties, is sufficient to cover all such property so situated then belonging to the mortgagor.
IdemAffidavit.An affidavit attached to a chattel mortgage, when made by some one in behalf of the parties,
need not state that fact.
TrespassSheriff and Judgment Creditors, When Jointly Liable for Wrongful Sale.Judgment creditors, who
attend an execution sale of property levied upon in that action by the sheriff, direct how the property shall
be sold, and buy in a portion of it themselves, thereby ratify the seizure by the sheriff, and, if it is wrongful,
they become jointly liable with him for the trespass.
EvidenceSufficiency ofWaiver.Admitting a mortgage in evidence without objection is a waiver of the
claim that its execution had not been sufficiently proven.
MortgageExecuted After Maturity of Note.Where it appears that a bona fide mortgage, although agreed
upon, was not executed until after the note it was given to secure fell due, but that such delay was not
fraudulent, and does not appear to have worked injury to any one, the mortgage does not, for that reason,
become invalid.
IdemPossession of Property Not TakenLien Good.The mortgagee of personal property does not, in the
absence of fraud, lose his lien thereon merely by failing to take possession of the property when the debt
falls due. (Syllabus by Bigelow, C. J.)
District Judge:
Action by J. C. Streeter against Hiram Johnson and others. Judgment for plaintiff, and
defendants appeal. Affirmed.
W. E. F. Deal and Thos. Wren, for Appellants:
I. Among the other safeguards provided in the chattel mortgage law of this state is a
requirement that the mortgage shall be recorded in each of the counties in which the property
is situated, otherwise the mortgage is declared invalid and void.
invalid and void. How is the phrase all property of a personal nature in either of said
counties to be construed? Manifestly it means all personal property of the company in each
of the counties. The mortgage was not recorded in Elko county, where a part of the property
was situated, and, under the provisions of the statute, is invalid and void. (Gen. Stats., sec.
2635.)
II. The allegation in the complaint is that the property described in the complaint was
situated at the town of Sherwood when the mortgage was executed. This, it is clear from the
language of the mortgage, did not embrace the property in Elko county when the mortgage
was executed. It therefore appears upon the face of the complaint that the mortgage is invalid
and void.
III. The affidavit annexed in the mortgage is insufficient. It does not show authority upon
the part of G. F. Talbot to make it, or that it was made on behalf of the mortgagee. The
mortgage is therefore invalid and void. (Gen. Stats., sec. 2635.)
IV. The act passed at the last session of the legislature allows an appellant to have the
original papers in a case in lieu of a statement on appeal certified to this court on appeal. No
doubt, under the statute, papers may be sent up that will not be considered by the court, but
the court can readily determine what papers should be considered, and what should not be
considered, without passing upon a motion to strike out.
V. No mortgage was given until the note had been overdue twenty-one days, and nearly
three months after the making of the note. In the meantime the company was enjoying a false
credit through the non-execution of the mortgage, and was able to obtain a credit that they
would not otherwise have been able to secure. Under the circumstances I submit that both the
mortgagor and mortgagee committed a constructive fraud that vitiated the mortgage as to
creditors. (Anderson's Dictionary of Law, p. 475; People v. Kelley, 35 Barb. 457.)
VI. The plaintiff lost his lien as against creditors by laches. He failed to take possession of
the mortgaged property or to assert his right as mortgagee until long after the note fell due.
note fell due. (Traverse v. McCormack, 1 Mont. 143; Burnham v. Muller, 61 Ill. 453; Argall
v. Seymour, 4 McCreary, U. S. C. C. 55.)
VII. It is clear that the trustees, whoever they were, never legally executed the note or
mortgage, and that, for want of authority in those who assumed to execute it, it is absolutely
null and void. (Hillyer v. Overman S. M. Co., 6 Nev. 51; Yellow Jacket Co. v. Stevenson, 5
Nev. 224.)
VIII. The description of all of the property, except the articles specifically described in the
so-called mortgage, is so indefinite and uncertain that the instrument is invalid and void as to
creditors. It reads as follows: Also all other property of a personal nature belonging to said
mortgagor situated in either of said counties. (Jones on Chattel Mortgages, sec. 55, 55a, and
authorities therein cited.)
E. S. Farrington, for Respondent:
I. In accordance with the motion filed herein, all of the papers and documents hereinafter
enumerated should be stricken from the records and files herein, on the ground that neither or
any of said papers or documents have been or are included in the statement on motion for a
new trial, or have been endorsed by the, or any, judge or clerk as having been read or referred
to on the hearing of the motion for new trial herein, or are designated by the, or any, judge in
his certificate, or otherwise, as having been read or referred to on the hearing of said motion.
II. The mortgage set out in the complaint was introduced in evidence without objection.
No motion for non-suit was made, nor was there any motion to strike out the mortgage or any
other testimony now of record. The defendants should have made their objections to the
mortgage at the time it was offered in evidence. The mortgage was offered as the mortgage of
the Star Mining and Smelting Company to the plaintiff, and it purports on its face to be such.
Permitting the mortgage to be introduced in evidence without making the objections that the
mortgage was executed without authority, that the mortgage had been altered in material
points after its execution, that the seal affixed to the mortgage was not the seal of the
corporation, and that no affidavits in behalf of the mortgagor or mortgagee were affixed to
the mortgage, is a waiver of such objections.
davits in behalf of the mortgagor or mortgagee were affixed to the mortgage, is a waiver of
such objections. The seal was admitted to be the seal of the Star Mining and Smelting
Company by defendant's failure to object to the admission of the mortgage. The seal being
thus proven, the presumption is that it was affixed by competent authority. All proofs of the
execution were waived by admitting the mortgage without objection. (Sharon v. Minnock, 6
Nev. 380; Langworthy v. Coleman, 18 Nev. 441; Burnett v. Lyford, 93 Cal. 114; Penn. Nat.
Gas Co. v Cook, 16 Atl. 762; Hamilton v. McLaughlin, 12 N. E. 424; Sherwood v. Sissa, 5
Nev. 355.)
III. The objection that the affidavit annexed to the mortgage is insufficient because it does
not show authority upon the part of G. F. Talbot to make it, or that it was made on behalf of
the mortgagee, is wholly without merit, as it is alleged in the complaint, and not denied in the
answer, that there was annexed to said chattel mortgage the affidavit of G. F. Talbot, on
behalf of this plaintiff, * * * setting forth that at the time of making the affidavit said Talbot
was the agent of this plaintiff and that this plaintiff was absent from the state of Nevada. The
statute of 1887, p. 66, requires that there shall be annexed to the mortgage the affidavits of
the mortgageor [mortgagor] or some person in their behalf.
IV. The fact that a mortgage has been antedated does not affect its validity. (Johnson v.
Stellwagen, 34 N. W. 252.)
V. The description, all other property of a personal nature belonging to said mortgagor
which is situated in either of said counties, means all property of the mortgagor which is
situated in Eureka county, and all property so owned which is situated in Elko county. This
description is neither indefinite nor uncertain. This description, aided by inquires, which the
instrument itself suggests, would enable any third person to identify the property. (Buck v.
Davenport, 26 Am. St. R. 392; Barrett v. Fisch, 14 Am. St. R. 239-247; Jones on Chattel
Mortgages, sec. 54; Crisfield v. Neal, 13 Pac. 272; Bank v. Bryan, 34 S. W. 451.)
VI. It is true that at the time the money was loaned there was an understanding between
Lindsey and Potter on the one hand, and Mr.
the one hand, and Mr. Streeter's agents on the other, that a mortgage should be given, and by
accepting and using the money, the corporation ratified the understanding. But it was
necessary thereafter to call a meeting of the directors to execute the mortgage. It is neither
alleged in the answer, or shown in the record, that there was any agreement or request that the
execution of the mortgage should be delayed, or that it was delayed, in order to give the
company a false credit. A creditor complaining of fraud must show that he has been
defrauded, and the burden of proving fraud is on him who alleges it.
VII. The plaintiff did not lose his lien by failing to take possession of the mortgaged
property when the notes became due. It is alleged in the complaint, and not denied in the
answer, that the debt has never been paid, and there can be no question but that the mortgage
was given in good faith. The possession of the mortgagor after the law day is neither
conclusive evidence of fraud, nor prima facie evidence of it, nor a circumstance to which the
law attaches the presumption of payment. (Jones on Chat. Mortgages, sec. 369, and cases
cited; Spraights v. Hawley, 39 N. Y. 441; Wescoat v. Crawford, 22 S. E. 792-801; Mitcham
v. Schuessler, 13 S. E. Rep. 617; Brown v. Campbell Co., 21 Am. St. R. 274; Peckinbaugh v.
Quillan, 12 N. W. 105; Pyeatt v. Powell, 51 Fed. 551; Williams v. Dobson, 1 S. E. 422.)
Action of replevin for certain personal property described in the complaint, or for its value
in the sum of $3,000, in case delivery cannot be had, to the possession of which the plaintiff
claims to be entitled as mortgagee, under the following circumstances:
July 21, 1887, the Star Mining and Smelting Company, a Nevada corporation, having its
principal place of business in the town of Sherwood, Eureka county, Nevada, borrowed from
the plaintiff $3,000, for which it executed and delivered its promissory note, due 60 days after
date. It was at the same time agreed that the company should secure the payment of the note
by a mortgage upon its property. October 12, 1887, the mortgage in question was executed
and delivered pursuant to that agreement, but it was dated July 21, 1SS7, to correspond
with the date of the note.
ered pursuant to that agreement, but it was dated July 21, 1887, to correspond with the date of
the note. It was filed for record with the county recorder of Eureka county on October 13,
1887.
Some time in December, 1887, the defendant Sweeney, as sheriff, and the other defendants
as creditors of the Star Mining Company, attached and took possession of a portion of the
property described in the complaint, and it was subsequently sold under an execution issued
upon a judgment obtained in that action.
In this action judgment was given for the plaintiff for a portion of the property, and
defendant's appeal from the judgment, and from an order overruling a motion for new trial.
There are a number of papers, including the findings, contained in the record which has
finally reached this court, which the respondent moves to strike out as not properly included
in the record of appeal. They are not contained in the statement on motion for new trial, nor
are they certified as having been used or referred to on the hearing of the motion, and most of
them are entirely immaterial.
It has been decided so many times that the findings are not before the court, unless
included in the statement for new trial, that there can now be no question upon the point,
unless, as contended by appellant, the rule has been changed by Stats. 1895, 58, in the act
regulating appeals. But in regard to that act, it seems only necessary to call attention to the
language used in Holmes v. Iowa Mining Co., 23 Nev. 24. We then said: It is not improper
to call attention to the fact that the statute mentioned has in no wise altered the method of
presenting questions to the supreme court. Wherever a motion for new trial or statement on
appeal was previously necessary to their proper presentation, it is still necessary. The only
difference is that, instead of having to present a transcript of the papers to be used on appeal,
the originals may now be certified up.
The motion to strike out will therefore be granted.
1. A copy of the mortgage is attached to and made part of the complaint, and appellants'
counsel contends that it is insufficient in several particulars, and that, therefore, the complaint
does not state facts sufficient to entitle the plaintiff to a judgment for the possession of
the property.
complaint does not state facts sufficient to entitle the plaintiff to a judgment for the
possession of the property. The first objection is that the property is insufficiently described.
Upon that point the mortgage reads as follows: That said mortgagor mortgages to the said
mortgagee all that certain personal property situated and described as follows, to wit: two
work mules, one gig, one two-horse wagon, etc. (Here follows an enumeration of a large
number of articles, after which the description concludes as follows:) All of said property is
at the town of Sherwood, or Union, in Union mining district, in either Elko county or Eureka
county, in the state of Nevada, and on or near the boundary line between said counties. Also
all other property of a personal nature belonging to said mortgagor which is situated in either
of said counties. It appears that some of the property for which the plaintiff recovered
judgment was not specifically described in the mortgage, and was only covered by the general
clause of all other property of a personal nature belonging to said mortgagor which is
situated in either of said counties. We think, however, that this was sufficient. It would often
be impossible to so describe personal property that a mere inspection of a mortgage would
indicate, to one unacquainted with the circumstances surrounding the parties, what was
covered by it, and, bowing to the necessity of the case, the rule has been established that it is
unnecessary to do so. The fact that the description was general, instead of specific, is no valid
objection of itself. (Veazie v. Somerby, 5 Allen, 280; Thurber v. Minturn, 62 How. Pr. 27.) If
a description is such as to enable third parties who have examined the records, and made such
inquiries as the instrument itself suggests, to identify the property covered thereby, it is
sufficient. (1 Cobby, Chat. Mort., sec. 161.) Tested by these rules, this mortgage is not
invalid. It covered all property of a personal nature then belonging to the company, in either
of those counties. This suggested the proper inquiry. The ascertainment of the facts
concerning the company's ownership of any particular article at once determined whether it
was covered by the mortgage. This was sufficient.
2. The mortgage was not invalid because not recorded in Elko county.
Elko county. If not recorded there, it would not affect property there situated, but this would
be no reason why it should also be invalid in Eureka county, where it was recorded.
3. The statute does not require that the affidavit attached to the mortgage, when made by
some one in behalf of the parties, shall state that fact. The complaint alleges, and the answer
does not deny, that the affidavit of G. F. Talbot was made in behalf of the mortgagee. That is
all that the law requires. Other objections are suggested to the complaint, but we are of the
opinion that they are not well taken, and it is unnecessary to notice them further.
4. There was no misjoinder of parties defendant, and the judgment against all of the
defendants was proper. Johnson, Remington and Foley were attaching creditors of the Star
Mining Company, and if they did not authorize the seizure of the property in the first
instance, it is perfectly clear that they subsequently ratified it. Their agent in the management
of the suit attended the execution sale, directed how the property should be sold, and bought
in a portion of it for those defendants. This made them jointly liable with the sheriff for the
trespass. (Freeman, Ex., 2d ed., sec. 273; Elder v. Frevert, 18 Nev. 446.)
5. There was no objection to the introduction of the mortgage in evidence. This
constituted a waiver of the claim that its execution by the company had not been sufficiently
proven. (Sharon v. Minnock, 6 Nev. 380; Langworthy v. Coleman, 18 Nev. 441.)
6. Nor do we think that the fact that the mortgage, although agreed upon when the note
was given and the money borrowed, was not executed until after the note fell due, renders it
invalid as to these defendants. It is not shown that the company's indebtedness to the
defendants was incurred between those dates, and, for aught that appears, it may have wholly
accrued prior to July 21, or subsequent to October 13, 1887. It is clear that the debt secured
by the mortgage was an honest one, and it is neither alleged nor proven that the delay was the
result of any agreement or arrangement to keep it from the knowledge of the public, and
thereby give the company a credit it would not otherwise have had, nor that it had this effect.
Although bearing an earlier date, and although previously agreed upon, it was not a valid
mortgage until acknowledged and sworn to and delivered, which the official certificates
and other evidence show was not done until October 12, the day before it was recorded.
earlier date, and although previously agreed upon, it was not a valid mortgage until
acknowledged and sworn to and delivered, which the official certificates and other evidence
show was not done until October 12, the day before it was recorded. Had other creditors
before that time obtained a mortgage or levied upon the property, their lien would certainly
have been prior to the plaintiff's mortgage. The delay simply gave them additional
opportunity to secure themselves, and we see no reason for holding that it invalidates the
mortgage.
The plaintiff did not lose his lien by his failure to take possession of the property before its
seizure by defendants. Our statute providing for chattel mortgages, as amended (Stats. 1887,
66), contains no requirement that the mortgagee must take possession of the property within
any particular time. In that respect such a mortgage does not seem to differ from one upon
real estate. In fact, the principal purpose of the amendment mentioned seems to have been to
abrogate the time limitation previously existing upon such mortgages, and to assimilate them
to real estate mortgages. Such a mortgage is merely security for the payment of a debt
(Shoecraft v. Beard, 20 Nev. 182), and, although under the principles applicable to them, the
mortgagee is entitled to the possession of the property upon default being made, there is
nothing that requires him to take it at any particular time, nor that, in the absence of fraud,
makes his delay in so doing fatal to his claim. Such is the conclusion announced by other
courts under similar statutes, and we see no reason to doubt its correctness. (Wescoat v.
Crawford, 22 S. E. Rep. 792, 801; Spraights v. Hawley, 39 N. Y. 441; Jones, Chat. Mort.,
sec. 369.) In Mitcham v. Schuessler, 98 Ala. 635, 638, the court said: Indulgence for an
unreasonable time after the law day of a mortgage is a circumstance which the jury may
consider, in connection with other facts, in determining the bona fides of a mortgage in its
inception, or as to whether the secured debt has been satisfied. But if the mortgage is bona
fide, and the debt secured has not been paid, no indulgence to the mortgagor, although the
effect of such indulgence be to protect the debtor in the possession and enjoyment of the
property, will affect the validity of the mortgage security. In such cases the only remedy of the
mortgagor is to redeem, and his creditors can secure no rights."
mortgagor is to redeem, and his creditors can secure no rights. Cases where the contrary has
been held, seem to have been decided under statutes differing from ours.
No errors appearing, the judgment will be affirmed. It is so ordered.
____________
23 Nev. 203, 203 (1896) Donlan v. Clark
[No. 1465.]
J. H. DONLAN, Respondent, v. A. J. CLARK, Appellant.
BailmentPresumption if Goods Are LostConversion.When a person is intrusted with the care and custody
of goods, it is his duty to return them at the end of the bailment, or account for their loss, and show that it
happened without legal negligence upon his part. If he fails to do either, the presumption is that he has
converted them, or that they have been lost through his negligence and he is responsible for them.
IdemOrdinary CareGross Negligence.This is equally true, whether, by the nature of the bailment, the
bailee is bound to exercise ordinary care and diligence, or is liable only for gross neglect.
IdemLoss Of GoodsBurden Of Proof.The burden of proving that they have been lost without the fault
being upon him, it is not sufficient for him simply to produce evidence to that effect. He must establish the
fact to the satisfaction of the court. (Syllabus by Bigelow, C. J.)
District Judge:
Action by J. H. Donlan against A. J. Clark. From a judgment for plaintiff, defendant
appeals. Affirmed.
In March, 1894, the plaintiff left with the defendant, a hotel keeper at Reno, Nevada, a
trunk full of masquerade costumes and masks, in pledge for the payment of a board bill of
$17, upon the agreement that, when the money was paid, they were to be sent to him, as he
might direct. The money was paid in January, 1895, and in the following October the trunk
was sent to the plaintiff at San Francisco, California, by express. Upon its arrival there it was
found to have been broken open, a part of the goods were missing, and the others had been
worn and damaged. A witness testified that in February, 1895, he saw a son of the defendant
and a companion upon the streets of Reno, in an intoxicated condition, and dressed in a
masquerade costume, and another witness that in October, 1895, she saw a cape, identified as
belonging to one of the costumes, in the possession of another woman, and that the
defendant's son was present when the cape was shown to her.
woman, and that the defendant's son was present when the cape was shown to her. On the
other hand, the defendant, his son and a clerk all testified that the trunk had been kept in a
trunk room in the basement of his hotel, which was kept securely locked, and that the trunk
had not been opened or its contents disturbed while in his possession; but the son did not
deny the testimony of the woman concerning the cape, nor was any explanation offered of it,
but he denied having been upon the streets in masquerade costume in February, 1895. The
findings and judgment were for the plaintiff, and the defendant appeals.
Robt. M. Clarke and T. V. Julien, for Appellant:
I. The property in question not being the ordinary baggage of the guest, there was no
innkeeper's lien upon it.
II. Conceding for this case that the goods were pledged for the payment of the $17 hotel
bill, that relationship ceased when the $17 was paid, and the defendant thereafter was a mere
gratuitous bailee and liable for gross negligence only. (Story on Bailment, 338; Petty v.
Overall, 42 Ala. 145; Murphy v. Bortsch, 23 Pac. 82; Jones on Pledges, 405; Scott v. Screws,
2 S. Car. 522; Erie Bank v. Smith, 3 Breus. (Pa.) 9; Bardsdale v. Richardson, 11 Wend. 25;
Platt v. Hibbord, 7 Cowen, N. Y. 497; 9 Wend. N. Y. 298; Foster v. Executors, 17 Mass.
498-507.)
III. The burden of proof is upon the plaintiff to show negligence upon the part of the
defendant. (2 Kent. Com. 4th ed., 587; Platt v. Hibbord, 7 Cowen, N. Y. 497; Bardsdale v.
Richardson, 11 Wend. N. Y. 25; 9 Wend. 268; Vose v. Valee, 4 Hun, N. Y. 628; Sellers v.
Jones, 22 Pa. St. 423; Gerard F. & M. In. Co. v. Marr, 46 Pa. St. 504.)
IV. As bailee, defendant was not a guarantor of the safety of the property, but was
required to exercise only reasonable and ordinary care. He could only be held for losses
which were the result of his negligence, and could not be made responsible for the negligence
of another. (Foster v. Executors, 17 Mass. 501-2.)
V. If defendant's employees, or some one, wrongfully and without the knowledge of
defendant, broke open the trunk and stole or damaged the goods, this could not create a
liability on the part of the defendant.
liability on the part of the defendant. (Green v. Birtchard, 27 Ind. 475; Davis v. Gray, 141
Mass. 531; Schermer v. Neurath, 54 Md. 497; 39 Am. Rep. 397.)
James F. Dennis, Chas. A. Jones and E. R. Dodge, for Respondent:
I. The law requires of the pledgee the exercise of ordinary diligence in the care and
custody of the goods pledged, and he is responsible for ordinary diligence. (Story on
Bailments, secs. 323-332. (St. Losky v. Davidson, 6 Cal. 644.)
II. Bailee liable only for gross negligence is still liable for actual conversion. (Graves v.
Smith, 80 Am. Dec. 762.)
III. The burden of proof in case of loss is on the bailor to prove the contract and the
delivery of the goods; then upon the bailee to show the loss and the manner of the loss; the
burden then shifts to the bailor to establish that the loss was due to negligence. (28 Am. &
Eng. Ency. 648, note 1, p. 650; Lancaster Mills v. Merchants' Cotton P. Co., 89 Tenn. 1; 24
Am. St. Rep. 536; Runyan v. Caldwell, 7 Hump. Tenn. 134.)
When a bailee, either for hire or gratuitous, is entrusted with the care and custody of
goods, it is his duty to return them at the end of the bailment or account for their loss, and
show that it happened without legal negligence upon his part. If he fails to do either, the
presumption is that they have been converted by him or lost through his negligence, and he is
responsible for them. (Beardslee v. Richardson, 11 Wend. 25; Logan v. Mathews, 6 Pa. St.
417; Wiser v. Chesley, 53 Mo. 547; Cumins v. Wood, 44 Ill. 416; Murray v. Clarke, 2 Daly,
102; Arent v. Squire, 1 Daly, 347.) We regard these principles as conclusive of the
defendant's liability in the case. The court found, upon sufficient evidence, that he received
the goods in good order, that he failed to return a part of them, and returned the balance in a
damaged condition. He failed to account for this state of affairs. His defense consisted of a
denial that any of the goods had been lost or damaged while in his possession, and his
evidence, if true, showed that such could not have been the case, but unfortunately for him
there was evidence to the contrary, and the court found the fact against him.
unfortunately for him there was evidence to the contrary, and the court found the fact against
him.
The very fact that they were so taken and used, is, under the circumstances, strong
evidence that it was either done with the defendant's consent, or through gross negligence
upon his part. (Boise v. H. & N. H. R. R. Co., 37 Conn. 272.) This finding makes that one of
the settled facts in the case, and leaves him in the predicament of a bailee in whose custody
goods have been lost or damaged, and for which he has wholly failed to account. This, at
least, threw upon him the burden of proving that they had not been lost or damaged through
any fault of his, and this means more than that he must produce evidence to that effect. He
must establish it to the satisfaction of the court, and if he does not, where there is a conflict in
the evidence, the case stands the same as though no evidence to that effect had been offered.
Had he been able to establish that the goods had been stolen, or used without his
connivance or negligence, this would have constituted a complete defense for him, even
though the wrongful act had been perpetrated by a servant or some one in his employ. (Jones
on Pledges, sec. 403; Story, Bailments, secs. 88, 338.) But no explanation whatever left him
responsible for the loss, and, as already stated, this is equally true whether, after payment of
the debt, he was bound to exercise ordinary care and diligence, or was liable only for gross
neglect.
We are of the opinion that there was some substantial evidence to support the finding that
the damage was done while the goods were in the defendant's possession, and not while in
charge of the express company.
The judgment is affirmed.
____________
23 Nev. 207, 207 (1896) Gardner v. Gardner
[No. 1461.]
IDA L. GARDNER, Respondent, v. JAMES H. GARD-
NER, Appellant.
DivorceExtreme CrueltySufficiency of Allegations in Compliant.In an action by a wife for divorce, the
complaint, after alleging several threats of defendant to kill plaintiff, set out that, on a certain date,
defendant falsely accused plaintiff of improper conduct in keeping company with other men without
defendant's consent, and that such accusation, reiterated almost daily for six weeks, in conjunction with the
said threats, and defendant's frequent drunkenness, and a habit of gambling, had caused plaintiff great
bodily pain and mental anguish which seriously affected her health, destroyed her happiness, and rendered
her life so unendurable that she was forced to cease living with defendant: Held, sufficient to constitute a
cause of action for divorce on the ground of extreme cruelty. (Belknap, J., dissenting.)
IdemEvidence Not Limited to Facts Charged.In an action for divorce upon the ground of extreme cruelty,
the evidence is not necessarily to be limited to the particular facts charged, but that evidence of other facts,
whether before or after suit brought, which serves to give character to the acts of cruelty alleged and
proved, is admissible.
IdemIncompetent Evidence.The admission of incompetent evidence in a divorce case is not ground for
reversal where it appears that the finding of the court was not based thereon.
IdemEvidenceConflict ofRule.The same as in any other case, coming before an appellate court, where
it is claimed that the evidence is insufficient to support the findings or verdict, the point before us is not
whether, upon the whole evidence, it is correct, but whether there is any substantial evidence to support it;
that is, whether, when the decree is in favor of the plaintiff, he has proved such a case as would have made
a non-suit improper.
PracticePleadingWaiver of Objections.An objection that the several causes of action set out in the
complaint are not separately stated, is waived by answering to the merits.
IdemWhen Assignment of Error Not Considered by Appellate Court.If appellant presents no argument or
authorities in support of an alleged error in the court below, this court will not consider the assignment
unless the error is so unmistakable that it reveals itself by a casual inspection of the record.
IdemDemurrerMotion to Make Pleading More Definite.The objection that two causes of action are not
separately stated in the complaint, but are mixed together in one count, is not a ground of demurrer, but
such a fault is to be corrected by a motion to make the pleading more definite and certain by separating and
distinctly stating the different causes of action. (Concurring opinion by Bigelow, C. J.)
District Judge: Action by Ida L.
Action by Ida L. Gardner against James H. Gardner for divorce. From a judgment for
plaintiff and from an order denying a new trial, defendant appeals. Affirmed.
Torreyson & Summerfield and M. A. Murphy, for Appellant:
I. The court erred in overruling the demurrer to the complaint in this: There are three
separate and distinct causes of action stated, to wit: Failure to provide, habitual gross
drunkenness and gambling, and extreme cruelty, jumbled together so that it cannot be
determined from the reading of the complaint where one count or cause of action leaves off,
and the other commences, and said complaint does not conform to the closing paragraph of
section 3086 of civil procedure, in that they are not separately stated.
II. The demurrer should have been sustained on the ground of ambiguity and for
uncertainty in the complaint. The complaint attempts to set up a cause of action for cruelty, in
a general way. Mere allegations of cruelty, in the terms of the statute, are not sufficient, since
that would be alleging a conclusion of law instead of the ultimate fact. (Callen v. Callen, 44
Kan. 370; White v. White, 84 N. C. 340; Smith v. Smith, 43 N. H. 334; Walton v. Walton, 32
Barb. 203.)
III. A divorce should never be granted upon evidence of conduct or conversation which
occurred after the filing of the complaint, and it was error in the court to permit counsel for
the plaintiff, and for the court, over the objections of the defendant, to ask and insist upon
answers being given to questions concerning the conduct and declarations of the defendant
occurring after the date of filing of the complaint. (Bennett v. Bennett, 2 Post. Mich. 484.)
IV. We are well aware that the appellate court will seldom set aside or reverse the
judgment of the nisi prius court, when the evidence is conflicting, but the position we take is:
Taking the testimony of the plaintiff and her witnesses, giving to it all the weight to which it
is entitled under the law of marriage and divorce; the duties of the wife towards her husband;
the powers and duties of the husband as the recognized head of the familyit is not sufficient
to justify the judgment and decree in this case, dissolving the bonds of matrimony
existing between these parties.
justify the judgment and decree in this case, dissolving the bonds of matrimony existing
between these parties.
V. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil
attention and accommodation, occasional sallies of passion, do not amount to legal cruelty;
threats of violence and words of menace are not alone cruelty; if the threats were meaningless
or made in such a manner as to evince no determination to carry them into execution, there is
no reasonable apprehension of harm. (Close v. Close, 9 C. E. Green, N. J. Chan. 338; Shell v.
Shell, 2 Sneed, 34 Tenn. 716; Adams v. Adams, 78 Tex. 827; Ruckman v. Ruckman, 58 How.
Pr. 278.)
VI. All the authorities go to the extent of saying that there must be reasonable
apprehension of bodily hurt, and such as prevents the complainant from properly performing
marital duties. (Vognos v. Vognos, 15 Ill. 186; Richards v. Richards, 1 Grant Pa. 389;
Coursey v. Coursey, 60 Ill. 186; Kennedy v. Kennedy, 23 Stickles, N. Y. 360; Davis v. Davis,
55 Barb. 130; Morris v. Morris, 14 Cal. 70.)
VII. In granting a divorce to the wife on the ground of cruelty, the law presumes her not to
be the authoress of her own sufferings; it is on the presumption that her own conduct has been
proper; if not, the remedy is in her own power; she has only to change her conduct; it is her
duty to reform, and promote peace, and the evil complained of may cease. (Johnson v.
Johnson, 14 Cal. 460; Reed v. Reed, 4 Nev. 395; Poor v. Poor, 29 Am. Dec. 668; Conant v.
Conant, 10 Cal. 257; Skinner v. Skinner, 5 Wis. 451; Knight v. Knight, 31 Iowa, 451; Molton
v. Molton, 2 Barb. Oh. 309; Richards v. Richards, 37 Pa. St. 227; Lelands v. Jore, 5 La. Ann.
32; Edgerton v. Edgerton, 75 Iowa, 68; Childs v. Childs, 49 Md. 509; Blurock v. Blurock, 4
Wash. 495; Trowbridge v. Carlin, 12 La. Ann. 882.)
VIII. A wife is not entitled to a divorce for cruelty where she has provoked the violence of
which she complains by associating with men against the husband's repeated protests. (26 N.
Y. Supp. 246, affirmed in Taylor v. Taylor, 74 Hun, 639; Evens v. Evens, 82 Iowa, 462.)
Alfred Chartz, for Respondent:
I. Where a demurrer to a complaint is put in, and overruled, and the defendant then
answers, the answer is a waiver of the demurrer.
ruled, and the defendant then answers, the answer is a waiver of the demurrer. (DeBoom v.
Priestly, 1 Cal. 206; Lonkey & Smith v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev.
225; Brown v. Saratoga R. R. Co., 18 N. Y. 495; 2 Wait's Pr. 456.)
II. The court did not err in allowing testimony with regard to the conduct of the defendant
after the filing of the amended complaint any more than any court errs in instructing juries in
arriving at their verdict they may take into consideration the conduct of the parties and
witnesses upon the stand, and judge of their interest in the matter to enable the jury to see
who is telling the truth and who is not.
III. The only question for the supreme court to decide is whether, taking the testimony of
the plaintiff as true, a divorce should be granted. The lower court has found the testimony of
the defendant untrue. The lower court had the best opportunities to judge of that matter, and
the supreme court will not disturb the opinion of the lower court in that matter, except in
matters in which the supreme court will have an equal opportunity of judgment.
IV. No court ought to wait until a threatened act of legal cruelty is committed. (1 Bish. on
Mar. and Div. 729.)
V. Counsel weaves around his argument the fact that there is no single act which amounts
to legal cruelty under his understanding of what constitutes legal cruelty. But the authorities
uniformly hold that the entire picture must be taken into view, and, if such a life would be
dangerous to health, legal cruelty is established.
VI. The court cannot enjoy the proper opportunities of judging the character of the parties.
This court can never know whether the plaintiff is beautiful, educated, refined, or the reverse.
This court has not heard the voice of the defendant, or witnessed his emotions and demeanor
in court; nor has it heard any of the witnesses testify. This court has nothing before it but the
printed words of the transcript. Now, I claim that particularly in an action for divorce, and
more particularly do I claim in an action for divorce upon the ground of legal cruelty, the
matters absent from this court are essential in the highest degree in judging whether a divorce
should be granted or refused. The lower court had all these opportunities, and decreed a
divorce, and it should not be disturbed, unless it very clearly appears to this court that the
plaintiff is not entitled thereto.
all these opportunities, and decreed a divorce, and it should not be disturbed, unless it very
clearly appears to this court that the plaintiff is not entitled thereto.
In this action the trial court granted a decree in favor of the plaintiff and against the
defendant, dissolving the bonds of matrimony then existing between them on the ground of
extreme cruelty on the part of the defendant towards the plaintiff, and awarded to her the care
and custody of their minor child. From this decree and the order of the court denying his
motion for new trial the defendant appeals.
The appeal is prosecuted on the alleged grounds: (1) Errors in law occurring at the trial and
excepted to by the defendant. (2) Insufficiency of the evidence to support the decision of the
court and that the same is against law.
The complaint is based on two of the statutory grounds for divorce: Neglect to provide,
etc., and extreme cruelty, but the causes of action are not separately stated, or rather they are
embraced in one count. The defendant demurred to the complaint upon the alleged grounds of
its ambiguity, uncertainty, etc., and the insufficiency of the facts stated to constitute a cause
of action. The court sustained the demurrer with respect to some of the specified grounds of
objection contained therein and overruled it in all other respects. The complaint was amended
to cure the defects with respect to which the demurrer had been sustained, the defendant
answered, and the case went to trial on issues of fact.
The overruling of the demurrer is assigned as error, and the alleged error is argued by
appellant's counsel. It is insisted that there are several causes of action united and jumbled
together," and do not conform to the closing paragraph of section 3086 of the General
Statutes in that they are not separately stated. Whether or not these objections can be taken
by demurrer we do not pass upon. If the demurrer was proper, the defendant waived the
objections by answering. All objections to a complaint are waived by answering and raising
issues of fact, except: (1) That the court has no jurisdiction of the person of the defendant or
the subject of the action."
the subject of the action. (2) That the complaint does not state facts sufficient to constitute a
cause of action. (Lonkey v. Wells, 16 Nev. 271; Hammersmith v. Avery, 18 Nev. 225; Bliss
on Code Pleadings, sec. 417.)
The allegations of jurisdiction and marriage being fully and sufficiently made by the
amendments, the only question to be considered concerning the complaint is: Are the facts
stated therein sufficient to constitute a cause of action for divorce on the ground of extreme
cruelty? By the complaint the plaintiff alleges: That since said marriage the defendant has
treated her in a cruel and inhuman manner, and in particular as follows: [After alleging
several threats of the defendant to take the life of the plaintiff, with the time, place and
circumstances, and other misconduct on his part, it is further alleged:] That on or about the
3d day of March, A. D. 1894, at Wellington, Lyon county, Nevada, the said defendant falsely
charged that plaintiff was guilty of improper conduct as a wife in keeping company and going
with other men without his consent, and from that date until the 17th of April, A. D. 1894,
has almost daily so charged her, which, in conjunction with the acts of cruelty hereinbefore
set forth, his frequent drunkenness and his habit of gambling as aforesaid, caused her great
bodily pain and mental anguish, which seriously impaired her health, destroyed her happiness
and rendered her life so miserable and unendurable that she was forced to cease cohabiting
and living with defendant on said 17th day of April, A. D. 1894.
We are of opinion that the facts stated are sufficient to constitute a cause of action, and, if
proven, entitle the plaintiff to the decree granted.
Certain testimony concerning the conduct of the defendant towards the plaintiff was
offered and objected to by the defendant's counsel, on the ground that the alleged conduct
occurred after the action was brought. The objection was overruled and the evidence
admitted, to which ruling the counsel excepted. The admission of this evidence is assigned as
error, and noticed in argument by counsel for appellant. The record shows that the findings of
fact on which the decree of divorce was granted were based on the evidence of the
defendant's conduct prior to the filing of the complaint, and that all the facts found antedate
the commencement of the action.
and that all the facts found antedate the commencement of the action.
The admission of incompetent evidence by the trial court is not reversible error on appeal
where it appears that the verdict or finding was not based upon it. (McDonald v. Jacobs, 85
Ala. 64; People v. Collins, 75 Cal. 411; Markell v. Mathews, 3 Colo. App. 49; 2 Ency.
Pleadings and Practice, 549, et seq.)
There are numerous decisions of this court running through many of the reports, from
Mitchell v. Bromberger, 2 Nev. 345, to State v. Lewis, 20 Nev. 333, which hold to the effect
that the judgment of an inferior court will not be set aside on appeal for errors committed on
the trial which it appears could not have prejudiced the appellant.
While the acts or conduct of a defendant after suit brought cannot be made the ground for
divorce, it seems to be well settled that specific acts of cruelty occurring during the period in
which it is alleged the misconduct took place, although not specifically alleged, may be
received in evidence as explanatory of those averred and as giving weight to them and color
to the acts alleged and proved. (2 Bishop on Marriage, Divorce and Separation, secs. 1442,
1443, and notes.) And Bishop, in same volume, sec. 1451, says: One cannot see why they
may not receive color as well from what occurred after the suit was brought as before.
In the case of Doughaday v. Crowell, 3 Stockton (N. J.) Rep. 210, the court said: It may
be said that the court must look at the case as the bill presents it, and must confine itself to
matters which occurred previous to the commencement of the suit. But the court may look at
the conduct of the husband towards the wife since the commencement of the suit for the
purpose of giving character to the acts which are relied upon as grounds for the divorce.
We are of opinion that the evidence is not necessarily to be limited to the particular facts
charged, but that evidence of other facts, whether before or after suit brought, which serves to
give character to the acts of cruelty alleged and proved, is admissible.
Several other alleged errors are assigned which will not be considered, as they have not
been noticed in argument.
If appellant presents no argument or authorities in support of an alleged error in the court
below, this court will not consider the assignment, unless the error is so unmistakable that it
reveals itself by a casual inspection of the record. (Allison v. Hagen, 12 Nev. 38.) And
alleged errors, argued but not embraced in the assignment will not be considered. (Sherman v.
Shaw, 9 Nev. 148; Boyington v. Longley, 19 Nev. 69.)
The Evidence: The evidence is conflicting, and while it does not make out a very strong case
against the defendant, it tends to prove the alleged acts of cruelty as found by the court.
Bishop, in commenting upon the degree of cruelty or what extent of harm must be
apprehended, says: There is no possibility of measuring the depth of woe or danger required,
except by the understandings of the men who occupy the bench and the jury box, enlightened
and strengthened by what has been heretofore deemed as adjudged.
Taking the testimony altogether, as to the specific acts of the defendant, and his general
conduct embraced within the period named in the complaint and as to the effect they had on
the plaintiff, we do not think we would be justified in disturbing the findings of the court.
The judgment and order denying a new trial are affirmed.
The objection that the two causes of action are not separately stated in the complaint, but
are mixed together in one count, is not a ground of demurrer, but such a fault is to be
corrected by a motion to make the pleading more definite and certain by separating and
distinctly stating the different causes of action. (Pomeroy, Rem. & Rem. Rights, sec. 447;
Bliss, Code Pleadings, sec. 412.)
Whether there is sufficient evidence to support the finding that the defendant has been
guilty of extreme cruelty, is a question upon which there has been considerable doubt in my
mind, and it is not without hesitation that I conclude there is. The same as in any other case
coming before an appellate court where it is claimed that the evidence is insufficient to
support the findings or verdict, the point before us is not whether, upon the whole evidence, it
is correct, but whether there is any substantial evidence to support it; that is, whether,
when the decree is in favor of the plaintiff, he has proved such a case as would have made
a non-suit improper.
whether there is any substantial evidence to support it; that is, whether, when the decree is in
favor of the plaintiff, he has proved such a case as would have made a non-suit improper. If
there isif there is a substantial conflict in the evidencethen the duty and responsibility of
finding the facts for the evidence devolve upon the trial court, and constitute a question
concerning which this court has nothing to do, even though we may feel that upon the whole
evidence we should have come to a different conclusion.
The evidence upon the plaintiff's part shows that she and defendant quite frequently had
disagreements and quarrels concerning his habits of drinking and gambling, of which she
accused him, and on account of which she threatened to leave him if he did not reform. At
such times, when angered, he often told her that if she did he would kill her, and sometimes
that he would kill her, their infant child and himself. He also became quite jealous of her, as
she claims, and, as the court presumptively found, without any clause, and he accused her
often of improper conduct with other men. According to her version, his conduct was
certainly very unjustifiable on the night when he refused to permit her to get their infant child
as they passed, on their way home, her mother's house, where it had been left earlier in the
evening, and compelled her to remain in the buggy and return home without the child, under
threats of blowing her brains out. Her evidence is that after getting home he pushed her into
the house, locked the door and searched for a pistol, certainly for the purpose of intimidating
her, if not of using it. That she was under some apprehension that he might use it some time
is shown by her having previously removed it beyond his reach. It may be that he would not
have used it, and that he never had any intention of doing so, but at the same time the contrary
is possible. At any rate, a husband indulging in such acts and language cannot complain very
much if he is taken seriously. Unless it is clear that they were mere idle threats, courts are
hardly justified in experimenting to ascertain whether they were or not, for the experiment
might be a disastrous one for the wife. In addition to this apprehended danger, she alleged,
and proved by her own and her mother's testimony, that his conduct had affected her health,
and the court found that it had rendered her life unendurable.
her health, and the court found that it had rendered her life unendurable.
Under these circumstances, while I consider the case, particularly in view of the
defendant's testimony, a weak one, I cannot say that there is not substantial evidence to
support it.
I therefore concur in affirming the judgment and order.
Belknap, J. dissenting:
The evidence is insufficient in my judgment to support the charge of extreme cruelty. I
therefore dissent.
____________
[No. 1470.]
STATE OF NEVADA, ex rel. REINHOLD SADLER, Relator, v. C. A. LaGRAVE, State
Controller, Respondent.
Constitutional LawGovernorLieutenant-Governor to Become Acting Governor, WhenSalary Of.Under
art. V, sec. 18, of the state constitution, providing that, upon the death of the governor, the powers and
duties of the office shall devolve upon the lieutenant-governor for the residue of the term, the
lieutenant-governor, upon the death of the governor, becomes acting governor, and entitled to receive the
salary attached to that office.
Original Proceeding. Application for writ of mandate on the relation of Reinhold Sadler,
against C. A. LaGrave, State Controller. Granted.
James R. Judge, for Relator:
I. The powers and duties of the office of governor of the state of Nevada having, by reason
of the death of Governor John E. Jones, on April 10, 1896, devolved upon relator, he is
entitled to receive the salary provided by law to be paid to the governor. (Baxter v. Brooks, 29
Ark. 173; Chadwick v. Earhart, 11 Or. 389.)
II. The identical question at issue here came twice before the comptroller of the state of
New York, under a section of the constitution of that state (Art. III, sec. 6, Const. N. Y.), of
which section 18 of article V of the constitution of the state of Nevada is a verbatim copy,
and in both instances it was held, by the comptroller, that the lieutenant-governor, upon
whom the powers and duties of the office of governor devolved, was entitled to the salary
given by law to that officer.
upon whom the powers and duties of the office of governor devolved, was entitled to the
salary given by law to that officer. These decisions of the comptroller were referred to with
approval by the court of appeals of New York, in the case of People v. Hopkins, 55 N. Y. 74.
To the same effect is: U. S. v. Bassett, 2 Story, 389; U. S. v. Morse, 3 Story, 87; Sleigh v. U.
S., 9 Ct. Claims, 369; Merriam v. Clinch, 6 Blatch. 5.
III. The powers and duties of the office of governor, which have devolved upon relator,
and with which he became clothed upon the death of Governor Jones, are not only such
powers as are necessary to enable him to discharge his duties properly, but the right and
power to demand and receive the salary attached by law to the office. (Merriam v. Clinch, 6
Blatch. 5.)
I. Respondent contends that relator, as lieutenant-governor, did, upon the death of
Governor Jones, remain lieutenant-governor, but then became and still is such
lieutenant-governor, with the powers and duties of governor devolving upon him. (Const. of
Nev., art. V, sec. 18.)
II. In addition to the provisions of the last-named section, our constitution contemplates
the existence of a vacancy in the office of governor (Const. Nev., art. V, sec. 17), and
provision is made in terms for such a contingency. Further, it is a noticeable fact that under
this constitution in no case can a vacancy in the office of lieutenant-governor occur, nor is
there any provision for a succession to the office of lieutenant-governor by it or our statutes in
the event of any succession by the incumbent of that office to the office of governor.
III. The cases cited by respondent under the constitution of the state of New York, adopted
in 1821, appear to be no authority for our guidance in this proceeding, for the reason that our
statutes provide a salary or, more properly speaking, a per diem for the lieutenant-governor
when acting as governor (Stats. 1891, p. 104) as exact and certain as the salary of the
governor; while in the state of New York, in the year 1829, when those cases decided that he
should receive the salary provided for the governor, there presumably was no salary or
per diem fixed by law for him when acting as governor when he was so acting, either
temporarily or permanently.
receive the salary provided for the governor, there presumably was no salary or per diem
fixed by law for him when acting as governor when he was so acting, either temporarily or
permanently.
At the general election held in the month of November, 1894, John E. Jones was elected
governor of the state and Reinhold Sadler was elected lieutenant-governor. Governor Jones
died on the 10th day of April, 1896. Thereafter the relator assumed the duties of the
gubernatorial office, and, before the institution of this proceeding, demanded of defendant, as
controller, a warrant upon the treasurer for the amount of his salary as the acting governor
from the 11th day of April, 1896, to the 30th day of the same month. Defendant declined to
draw the warrant as requested, although there is an unexpended balance in the treasury
appropriated for the payment of the salary of the governor.
The provision of the constitution bearing upon the subject is as follows: In case of the
impeachment of the governor, or his removal from office, death, inability to discharge the
duties of the said office, resignation or absence from the state, the powers and duties of the
office shall devolve upon the lieutenant-governor for the residue of the term, or until the
disability shall cease. * * *
It is claimed, on the part of respondent, that, when the contingency above mentioned
arises, by which the powers and duties of the office of governor devolve upon the
lieutenant-governor, no change occurs in the position of that officer. He remains
lieutenant-governor, exercising the powers and duties of the governor, but not entitled to the
salary attached to the office.
An analogous question was considered in the case of Church v. Hopkins, 55 N. Y. 74. The
laws of the state of New York require the superintendent of the insurance department to
appoint a deputy from among his clerks, who shall possess the powers and perform the duties
attached by law to the office of superintendent, during a vacancy in the office. Relator had
been appointed such deputy. His principal had resigned, and the powers and duties of the
office had devolved upon him under the statute.
upon him under the statute. He sought to compel the controller to issue a warrant for the
salary allowed by the statute to the superintendent. The court determined that he was entitled
to it. In its opinion the court said: The statute confers, in the case of a vacancy, upon the
deputy all the powers and imposes upon him all the duties of the office of the superintendent
during its continuance. In short it makes him to all intents and purposes acting superintendent
for that time during which there is no other superintendent. The act contemplates that there
shall at all times be a person clothed with all the powers and subject to all the duties of
superintendent, * * * and that there also shall be a clerk, designated as deputy, possessing the
powers and subject to the duties of the office during the absence and inability of the principal
to perform them. * * * This provision is carefully made to avoid inconvenience to the public
for want of a person so authorized. Upon a vacancy all the powers of the superintendent are
given to the deputy, and he is to perform all the duties. Among these powers and duties is the
designation of a clerk as his deputy, to the end that there may be no failure of a person to
discharge the duties by the absence or inability of the acting superintendent to discharge
them. This acting superintendent is as liable to be unable to discharge the duties of the office
from absence or inability as one appointed thereto by the governor, and there is the same
necessity for providing for such a contingency in case of the former as in that of the latter.
Such provision is made in the case of the former by conferring upon him the powers and
imposing upon him the duties of the superintendent. This language clearly includes the power
of designating a clerk to act as his deputy, etc. This power, being included in the language and
clearly necessary for the practical discharge of the duties of the office, we must assume that it
was the intention of the legislature to confer it upon the acting superintendent during a
vacancy.
Again at page 80: In case of a vacancy in the office, all its powers and duties at once
devolve upon the deputy. There remains no other vested with any of its functions. The deputy
at once becomes acting superintendent, and his acts are, to all intents and purposes, those of
superintendent.
He is entitled to the emoluments of the office, the same as though appointed thereto by the
governor, etc., as provided by statute. The duties and responsibilities are the same. His acts
thereafter are regarded as those of superintendent, and not those of deputy. He is entitled to
the salary of the former and not to that of the latter office. The statute precludes the idea that
the same person can hold both offices. This would be my conclusion in the absence of any
precedents sustaining it. But there are precedents which, though not judicial, I regard as
entitled to be considered as decisive of the question under consideration. In the constitution of
the state, adopted in 1822, will be found the following provision: In case of the impeachment
of the governor, or his removal from office, death, resignation or absence from the state, the
powers and duties of the office shall devolve upon the lieutenant-governor for the residue of
the term, or until the governorabsent or impeachedshall return or be acquitted.' (Const.
1822, art. III, sec. 6.) On the 11th of February, 1828, the office of governor became vacant by
the death of De Witt Clinton, the then incumbent of the office, and its powers and duties,
under the above provision of the constitution, devolved upon Nathaniel Pitcher, then
lieutenant-governor. The question arose whether he was to be regarded, in the exercise of the
powers and performance of the duties so vested in him, as acting governor, or in the
performance of the contingent duties of lieutenant-governor, and as a consequence, whether
he was entitled to the salary of the former office, or the compensation given to the
lieutenant-governor for his services as such. It was held by William L. Marcy, then
comptroller, that he was to be regarded as the acting governor, and entitled to the salary given
by law to that officer. The same questions, under the same provision, again arose in 1829,
upon the resignation of the office of governor by Martin Van Buren, and the powers and
duties of the office devolving upon Enos T. Throop, then lieutenant-governor, and were
decided in the same way by Silas Wright, then comptroller. It will be seen that these
questions were identical with that in the present case. We surely shall not go far astray in
following the precedents established by these able jurists, wise statesmen and rigid
economists.
Merriam v. Clinch, 6 Blatch. 5, was a contest for the emoluments of the office of collector
of the customs at the port of New York between the administrator of the estate of Preston
King, the late collector, and Mr. Clinch, a special deputy, appointed by Mr. King. The
twenty-second section of the act of congress of March 2, 1799, authorizes the collector to
appoint a special deputy upon whom, in case of the death of the collector, the duties and
authorities of the office of collector shall devolve, and for whose conduct the estate of the
deceased collector shall be answerable. The analogy between the provision of the constitution
of the United States upon the devolution of the powers of the presidential office and a similar
provision in the twenty-second section of the statute providing for the devolution of the
powers and authorities of the collector upon the deputy was noticed. The court said: The
constitution of the United States (art. II, sec. 6) provides that in case of the removal of the
president from office, or of his death, resignation or inability to discharge the powers and
duties of the said office, the same shall devolve upon the vice-president.' The provision, in
this section of the constitution, that the powers and duties of the office of president shall
devolve upon the vice-president, is identical, in legal effect, with the provision, in the
twenty-second section of the act of 1799, that the authorities and duties vested in the collector
shall devolve on his deputy. Three times since the adoption of the constitution the president
has died, and, under the provision referred to, the powers and duties of the office of president
have devolved upon the vice-president. All branches of the government have, under such
circumstances, recognized the vice-president as holding the office of president, as authorized
to assume its title, and as entitled to its emoluments.
In Chadwick v. Earhart, 11 Or. 389, one of the questions was whether under the
constitution of Oregon the secretary of state, upon whom the duties of the office of governor
devolve upon the death of the governor, had a right to the salary of the office. The
constitution of Oregon provides that in case of the removal of the governor from office, or of
his death, resignation, or inability to discharge the duties of the office, the same shall devolve
on the secretary of state; and in case of the removal from office, death, resignation or
inability both of the governor and secretary of state, the president of the senate shall act
as governor until the disability be removed or a governor be elected."
and in case of the removal from office, death, resignation or inability both of the governor
and secretary of state, the president of the senate shall act as governor until the disability be
removed or a governor be elected. It was claimed that the duties of the office of governor
became annexed to the office of secretary of state and were discharged as duties incident to
the latter office. The same contention, mutatis mutandis, is made here. The court said: This
position seems to require: (1) Either that the office of governor should continue vacant during
the time the secretary discharges its duties, and that such duties be in some way performed by
the secretary of state, as such, consistently with a condition of vacancy; or (2) that the office
be filled and yet he who fills it be in nowise governor, but continue to be merely secretary of
state. In the first place, it is not shown how an office can be vacant, and yet there be a person,
not the deputy, or locum tenans, of another, empowered by law to discharge the duties of the
office and who does in fact discharge them. It is not explained how, in such a case, the duties
can be separated from the office, so that he who discharges them does not become an
incumbent of the office. And, in the second place, how a person can fill the office of governor
without being governor. It is the function of a public officer to discharge public duties. Such
duties constitute his office. Hence, given a public office and one who, duly empowered,
discharges its duties, and we have an incumbent in that office. Such is the case here. The
secretary of state, by force of the function cast upon him, became governor, and,
consequently, entitled to the salary appertaining to the office.
In the statute of March 21, 1891, fixing the salaries of state officers (Stats. 1891, p. 104),
the pay of the lieutenant-governor when acting as governor is fixed at $8 per day. From the
fact that the legislature appropriated the sum of $1,000 only for this purpose, I am of opinion
that this was intended for compensation when the governor was temporarily absent from the
state, and not for the purpose of fixing the compensation when the duties of the office
devolve upon the lieutenant-governor upon the death of the governor.
Relator, as acting governor, is entitled to the salary attached to the office of governor.
Let the writ issue.
I concur in the judgment, but do not wish to be understood thereby as holding that, upon
the death of the governor, the lieutenant-governor becomes governor in the full sense of the
term. Justice Belknap's opinion might possibly be so construed, but it seems to me that
section 17 of article V of the constitution contemplates that, upon the governor's death, his
office is to remain vacant. It reads: If, during a vacancy of the office of governor, the
lieutenant-governor shall be impeached, displaced, resign, die, or become incapable of
performing the duties of the office, or be absent from the state, the president pro tempore of
the senate shall act as governor until the vacancy be filled or the disability cease.
If, upon the death of the governor, the lieutenant-governor, ipso facto, and instantly,
becomes governor, then there could never be a vacancy in the office of governor, the
lieutenant-governor could never be impeached, displaced, etc., during such vacancy, and the
conditions upon which the president pro tem. of the senate is to act as governor could never
occur.
But, in the view I take, it is unnecessary to decide the point, and I simply suggest it by way
of caution, for, however it may be, the powers of the office do undoubtedly devolve upon the
lieutenant-governor in every sense except as expressly or impliedly limited by the
constitution. As to everything else, he virtually becomes governor. He fills the office, not
temporarily, as he would in case of the governor's absence from the state, but permanently,
and he becomes, at least, permanent acting governor for the residue of the term. Whatever
those constitutional limitations may be, there is none upon his right to draw the salary of
governor, and, as there is not, and he has the power to do everything else that the governor
can do, there seems no good reason why he cannot also draw the salary. In my judgment,
there is but one serious question as to this view, and that is that, if he can draw the governor's
salary when the governor's office is permanently vacant, as it is the same section of the
constitution that provides for both permanent and temporary vacancies, why can he not
do the same in case of the governor's absence from the state, or his temporary disability
to discharge the duties of the office?
that provides for both permanent and temporary vacancies, why can he not do the same in
case of the governor's absence from the state, or his temporary disability to discharge the
duties of the office? To this it may, however, be answered that possibly he could draw it, but,
if not, that there is, in reason, a wide difference between a temporary vacancy and one that is
permanent. In the one case there is another person still living entitled to the salary, and both
cannot have it, while in the other there is not.
Another reason that may be offered for this conclusion is that it is a general principle of
justice and right that, where one legally performs the duties of an office, he should be entitled
to the emolments [emoluments] thereof. Admitting that there is some doubt, arising upon the
language of the constitution, whether that instrument intended the relator to have the salary of
the office under the circumstances existing here, this equitable principle, together with the
construction that has been put upon substantially similar language where the vice-president
has succeeded to the office of president, and where lieutenant-governors and other officers
have succeeded to the office of governor, by so many able statesmen and judges, would lead
me to feel, in the absence of a clear declaration to the contrary, that the doubt should be
resolved in his favor.
But it is said that, if the relator is only acting governor, then Stats. 1891, 104, which
provide that, when so acting, he shall receive $8 per day, instead of the governor's salary, is
applicable. At first blush, this seems to be the case, but I think a little closer examination will
show that that statute was not intended to provide for such a contingency as now exists. As is
perhaps the case everywhere, our governors have been in the habit of being absent from the
state more or less, at which times the lieutenant-governor, of course, becomes, for the few
days of his absence, the acting governor. By Stats. 1881, 43 (Gen. Stats., sec. 3295), it was
provided that the lieutenant-governor, when acting as governor, in the absence or incapacity
of the governor, shall receive $14 per day. By Stats. 1883, 41 (Gen. Stats. 1777), the
lieutenant-governor was made ex officio adjutant-general and state librarian, and it was
provided that "for the services he shall render as such, and while acting as governor in
the absence of the governor form the state, he shall receive an annual salary of $2,700."
librarian, and it was provided that for the services he shall render as such, and while acting
as governor in the absence of the governor from the state, he shall receive an annual salary of
$2,700. By Stats. 1891 these offices were again taken from him, and Stats. 1891, 104, above
mentioned, was enacted, fixing his pay at $8 per day. From this statement it will be seen that
when, by the act of 1881, he was to be paid a per diem, it was for acting as governor during
the absence or incapacity of the governor, both, presumably, temporary occasions, and when,
in 1883, he was given a salary, it was for his ex officio services and for acting as governor in
the absence of the governor from the state, which, of course, would always be temporary.
These acts are in pari materia with the act of 1891, and must all be construed together in
arriving at what was intended by the latter. As the others were clearly intended for only
temporary occasions, it is fair to presume the last was also. The same inference can be drawn
from the language of the act of 1891. Though not, like the others, expressly limited to
temporary occasions, it is only to those, the duration of which must naturally be uncertain
until after the event, that a per diem payment is appropriate, while it would be absurd to so
regulate the pay of a permanent officer. There is no other officer in the state who is paid by
the dayno other who is not paid a yearly salary, and I cannot suppose it was the intention to
make the permanent acting governor an exception.
I am of opinion that the relator is entitled to the salary provided for the governor, and
therefore concur in the opinion that the writ prayed for should be granted.
____________
23 Nev. 226, 226 (1896) Schweiss v. District Court
[No. 1469.]
R. SCHWEISS, Relator, v. THE FIRST JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA IN AND FOR STOREY COUNTY, Respondent.
CountyQuasi CorporationPowers.A county is not a municipal corporation, in the full sense of the term. It
is only a quasi corporation, and possesses such powers and is subject to such liabilities only as are specially
provided for by the law.
IdemConstitutional LawGovernment Uniform.Art. IV, sec. 25, Constitution of Nevada, which requires
the legislature to establish a system of county governments, which shall be uniform throughout the state,
means that all county governments must, in all essential particulars, be alike.
IdemStorey County.The act of the legislature of March 15, 1895 (Stat. 1895, p. 73), entitled "An act to
incorporate Storey county and provide for the government thereof," is void because in conflict with that
section (Sec. 25, art. IV) of the constitution in many particulars.
IdemLocal and Special Act.It is also a local and special act regulating county business, and consequently in
conflict with sec. 20 of art. IV, of the constitution, which forbids such legislation. (Syllabus by
Bigelow, C. J.)
Original Proceeding. Application for writ of prohibition by R. Schweiss against the First
Judicial District Court of the State of Nevada in and for Storey county. Writ refused.
Original application for a writ of prohibition. The petitioner was convicted in a justice's
court of the offense of keeping a saloon in the city of Virginia, wherein liquors were sold by
the glass, without having obtained the license therefor required by an ordinance of said city.
From this conviction he appealed to the district court of the first judicial district, Storey
county, where his demurrer to the complaint upon the grounds that it did not state facts
sufficient to constitute a cause of action against him, and that the court had no jurisdiction of
the offense charged, was overruled, and the case set for trial. Thereupon he filed his petition
herein, setting out the above facts and asking that the court be prohibited from proceeding
further in the trial thereof. The defendant demurs upon the ground, among others, that the
petition does not state facts sufficient to constitute a proper ground for the issuance of the
writ.
F. M. Huffaker, for Petitioner:
I. The only question to be determined by the court is the validity of the act of the
legislature of the state of Nevada entitled "An act to incorporate Storey county and provide
for the government thereof," approved March 15, 1895 (Stats. 1895, p. 73). If this act is
within the power of the legislature, the writ of prohibition herein must be made perpetual.
II. The legislature has complete control of the entire subject of counties, except where
limited by the constitution (Hess v. Pegg, 7 Nev. 23), and it has unlimited power, under the
constitution, to create municipal corporations, therefore the legislature alone is to say what
territory a municipal corporation shall occupy. In fact, it is now well settled that a municipal
corporation is such as the legislature may declare, whether a town, city, district, county or
parts of two or more counties, or even a state. (Matter of Bonds, M. Trg. Co., 92 Cal. 296;
Winbigler v. Los Angeles, 45 Cal. 36; 2 Kent, 275.)
III. If, as said in Hess v. Pegg, supra, the legislature has complete control of counties, then
there can be no constitutional objection as to what the legislature shall do with a county, so
long as it does not attempt to regulate the business common to all the counties differently in
one county from the others, or to provide a different system of county government in one
county from that of another.
IV. What may be within the constitutional inhibitions is explained by the court in
Williams v. Bidleman, 7 Nev. 68, to include an act auditing and allowing a claim against a
county, or an act directing the commissioners to allow a claim which they had rejected, as
being special acts regulating county business, while in Churchill Co. v. Humboldt, 6 Nev. 30,
it is held the legislature has the power to say what claims against the county shall have
preference in payment; and in Odd Fellows' Bank v. Quillan, 11 Nev. 109, that the act of
February 17, 1873 (Stats. 1873, 54), authorizing Lincoln county to fund its indebtedness, was
a legitimate exercise of legislative powers, and not a regulation of county business. Then,
when the act of 1895 leaves the business of Storey county to be as heretofore in all respects
and the system of county government untouched, how can it be claimed that an act creating a
municipal corporation of Storey county is either a regulation of county business or an
establishment of a system of county government?
act creating a municipal corporation of Storey county is either a regulation of county business
or an establishment of a system of county government? It would seem the two are so distinct
that any misconception of them should be impossible.
V. The system of county government, which the constitution declares shall be uniform, is
not touched by the act of 1895, which simply transfers the property and revenues of the city
of Virginia and town of Gold Hill to Storey county, which is neither regulating county
business nor establishing a system of county government.
Langan & Knight, for Respondent:
I. The legislature has the right to say all counties shall be municipal corporations, but it
cannot say one particular county shall be a municipal corporation, because, in making it such,
it gives it a government not uniform with the other counties of the state, which is the thing
inhibited by secs. 25 and 20 of art. IV of the Nevada constitution, for when the constitution
points out one mode of doing an act (filling an office), the legislature cannot substitute
another. (State v. Arrington, 18 Nev. 412.)
II. If the act of 1895 created within the boundaries of Storey county a municipal
corporation only, and did not seek to form a new and different county government from that
of other counties, or from that by which Storey county was theretofore governed, and
provided for the government of such municipal corporation and left the affairs of Storey
county to be administered under the general laws theretofore existing, but merely directing
that certain county officers should also perform certain duties for the municipality, there
would be no constitutional objections to the act as a whole except its defective and improper
title.
III. Under our constitution this court says that laws may be passed which do not affect
every county of the state alike, if they are so framed as to affect all such counties as may meet
the conditions of the laws, provided those conditions are based on a real and substantial
difference in the circumstances of the county, and upon a fair classification under which any
and all counties might come at some time. But, in so doing, the court also holds that no law
specifying a different governmental authority for one county from that of the other
counties of the state, and no local or special law regulating county or township business,
can be passed, and that a law designating one county within which it is to operate, or a
law affecting to classify counties but in which the classification is apparent and illusory
rather than actual and substantial, is such a local and special law establishing such a
difference, and is therefore unconstitutional.
in so doing, the court also holds that no law specifying a different governmental authority for
one county from that of the other counties of the state, and no local or special law regulating
county or township business, can be passed, and that a law designating one county within
which it is to operate, or a law affecting to classify counties but in which the classification is
apparent and illusory rather than actual and substantial, is such a local and special law
establishing such a difference, and is therefore unconstitutional. (State v. Boyd, 19 Nev. 43;
Williams v. Bidleman, 7 Nev. 68.)
IV. The purposes of the act of 1895 as expressed in the title are forbidden by the
constitution. Those purposes are: (1) To incorporate one particular countyStoreynot all
the counties of the state. Such special purpose of the Act is in conflict with art. IV of the
constitution, secs. 20, 21 and 25, also with sec. 1 of art. VIII of the constitution, which forbids
the passage of special or local acts relative to corporate powers or the creation of corporations
except for municipal purposes. A county is not a municipal corporation within the meaning of
the constitution, or in the general acceptation of the term. (2) To provide for the government
of Storey countynot the counties of the state of Nevada, but one individual countyis
directly contrary to sec. 25 of art. IV of the constitution, also to sec. 21 of said article, for the
subject of county governments is one to which, by its very nature, general laws may be made
applicable.
The question involved in this case is the validity of the act of the legislature entitled An
act to incorporate Storey county and provide for the government thereof, approved March
15, 1895 (Stats. 1895, 73). Its constitutionality is attacked upon several different grounds, of
which it will be necessary to notice but one or two.
Section 1 of the act describes Storey county, not by name, but by metes and bounds, and
then creates the territory so described into a municipal corporation by the name of Storey
county, with large and varied powersamong them that of having a common seal, of holding
and enjoying both real and personal property, either within or without the municipality, and
the same to buy, sell and mortgage, to receive bequests, gifts and donations of property,
either in fee simple or in trust for charitable or other purposes, with power to manage,
sell, lease or otherwise dispose of the same in accordance with the terms of the trust.
pality, and the same to buy, sell and mortgage, to receive bequests, gifts and donations of
property, either in fee simple or in trust for charitable or other purposes, with power to
manage, sell, lease or otherwise dispose of the same in accordance with the terms of the trust.
Section 2 provides that all buildings, lands and property, all rights of property and rights of
action, all moneys, revenues and incomes belonging or appertaining to Storey county,
evidently referring to the county as it now exists, to the city of Virginia or the town of Gold
Hill, shall be vested in Storey county, meaning by the name as now used, the new
municipality.
Section 3, that the new municipality shall succeed to all property rights, all books, records,
etc., of Storey county, Virginia City or Gold Hill, and shall become subject to all liabilities of
those organizations.
Section 4, that Storey county (evidently the municipality) may sue for and recover all
property, etc., belonging to either said county, city or town, and that all existing suits, actions
and proceedings to which "said county" or the city or town is a party, are to be continued by
or against "said county."
Section 7, that all county moneys are to be kept in one fund, to be known as the county
general fund.
Section 10, that the board of commissioners may levy a tax for county purposes, not
exceeding the sum of $3 50 on each $100 valuation of the property therein.
A comparison of this act with the existing laws governing all the other counties in the state
seems to demonstrate that it is in conflict with section 20 of article IV of the constitution,
which forbids local and special laws regulating county business; with section 25 of the same
article, which requires the legislature to establish a system of county governments which shall
be uniform throughout the state.
Clearly, a county is not a municipal corporation. If it were, there would have been no
occasion for this act changing Storey county into a municipality. It is, at the most, only a
quasi corporation, and possesses only such powers and is subjected to only such liabilities as
are specially provided for by law. Mr. Beach, in his work on Public Corporations, states the
distinction between them as follows: "Municipal corporations embrace incorporated
cities, villages and towns, which are full-fledged corporations, with all the powers, duties
and liabilities incident to such a status; while public quasi corporations possess only a
portion of the powers, duties and liabilities of corporations. As instances of the latter class
may be mentioned counties, hundreds, townships, overseers of the poor, town
supervisors, school districts and road districts." {Beach Pub. Corp., sec. 3.)
And again, in section 6, the same author says: "The preceding sections indicate the
essential differences between the municipal and the public quasi corporation.
states the distinction between them as follows: Municipal corporations embrace incorporated
cities, villages and towns, which are full-fledged corporations, with all the powers, duties and
liabilities incident to such a status; while public quasi corporations possess only a portion of
the powers, duties and liabilities of corporations. As instances of the latter class may be
mentioned counties, hundreds, townships, overseers of the poor, town supervisors, school
districts and road districts. (Beach Pub. Corp., sec. 3.)
And again, in section 6, the same author says: The preceding sections indicate the
essential differences between the municipal and the public quasi corporation. The latter may
be defined to be an involuntary political or civil division of the state, created by general laws
to aid in the administration of government. * * * Counties, townships, school districts, road
districts and like public quasi corporations do not usually possess corporate powers under
special charters; but they exist under general laws of the state, which apportion the territory of
the state into political divisions for convenience of government, and require of the people
residing within those divisions the performance of certain public duties as a part of the
machinery of the state, and, in order that they may be able to perform these duties, vests them
with certain corporate powers.
A county is certainly very far from being the complete corporation that is created by the
act in question, with all, and probably more than all, the powers that can be vested in a
municipal corporation. This of itself is sufficient to destroy the uniformity that the
constitution requires to exist in the several county governments.
In Singleton v. Eureka County, 22 Nev. 91, we had occasion to consider this clause of the
constitution at some length, and there concluded that it meant that such governments must, in
all essential particulars, be alike. State v. Boyd, 19 Nev. 43, is to the same effect. But Storey
county, as created into a municipal corporation by this act, is not like the other counties,
either in form or substance, and therefore the act is in conflict with the constitution.
With the law in question in force, it would be an interesting study to determine just what
position Storey county that used to be, the city of Virginia and the town of Gold Hill would
be in.
23 Nev. 226, 232 (1896) Schweiss v.District Court
used to be, the city of Virginia and the town of Gold Hill would be in. While there is no
provision for their disestablishment, there can be little doubt that the framers of the law
intended that they should practically cease to exist. If not totally destroyed, it was certainly
intended that the breath of life should be taken from them. All property, all rights of action,
all revenues and incomes, all books, records, claims, demands, etc., theretofore belonging to
Storey county, are transferred to the new municipality. Without property, without records,
without rights in anything, either in possession or in action, its bones are marrowless, and it
has nothing in common with the living organizations in the other counties.
It is no answer to say that the new municipal corporation has taken its place and has all the
powers, duties and liabilities that the county formerly had, for it is an entirely different system
of government, whereas the constitution requires them to be the same. Nor is this true merely
in matters of form. The municipality has different and additional powers from those
possessed by the counties. No county has common seal; nor can it hold property outside its
boundaries, or even inside, except for a few purposes, nor purchase, sell or mortgage property
generally; nor hold and manage it in trust for any purpose, while the municipality of Storey
county is authorized to hold it for all purposes. Other counties must have at least three funds
for county purposes: a general fund, an indigent fund and a contingent fund (Gen. Stats., sec.
2008), but this municipality is to have but one; other counties can under no circumstances
levy a tax for county purposes of more than $2 upon each $100 of property valuation (Stats.
1895, 22), while the new Storey county can levy $3 50. In fact, were it not that the
municipality has the same name and the same boundaries as Storey county, it would be fully
as difficult to point out wherein the two governments are uniform as that wherein they differ.
In addition, as the act is confined to Storey county, it is both local and special, and as it
unquestionably regulates the business of that county, it is also invalid for that reason.
Writ refused.
____________
23 Nev. 233, 233 (1896) Hayes v. Davis
[No. 1471.]
WILLIAM HAYES, Respondent, v. W. L. DAVIS and L. S. SCOTT, A. TRAVIS, W. C.
GALLAGHER, The Board of County Commissioners of White Pine County, Appellants.
PracticeAppealAuthentication of Statement.A statement of a case on appeal must be settled and
authenticated by the judge or referee hearing the case, or by agreement of the parties, under secs. 3354,
3355 and 3357 of General Statutes; and unless so authenticated thirty days prior to the commencement of a
term of the supreme court, the appellant is not in default for failure to file a transcript by the first day of the
term, though the statement may have been on file with the clerk of the trial court for a longer time, and no
amendments proposed thereto.
IdemAppeal Irregularly Dismissed.An appeal, found to have been irregularly dismissed, will be reinstated
upon motion.
Action by William Hayes against W. L. Davis and others. Appellant moves to restore an
appeal which was dismissed. Motion granted.
R. M. Clarke and Henry Rives, for Appellant.
Thos. Wren, J. Poujade and F. X. Murphy, for Respondent:
I. The statement was never presented to the judge who tried the cause, as required by
either sections 332, 333 or 335 of the practice act. (Gen. Stats., secs. 3354, 3355, 3357.)
II. After filing the notice of appeal in due time, the appellants filed the requisite
undertaking and perfected their appeal. Upon this state of facts on the 2d day of April, 1896,
counsel for appellants, according to his affidavit, directed the clerk of the district court in and
for White Pine county to certify the papers on appeal to the supreme court. The clerk certified
the papers as requested, and the papers were filed with the clerk of this court on the 8th of
April. In the meantime, however, the appeal had been dismissed upon motion of counsel for
respondent.
III. The appeal should not be reinstated. The affidavit of counsel for appellants shows
gross carelessness upon the part of counsel in moving to have the appeal reinstated.
23 Nev. 233, 234 (1896) Hayes v. Davis
On motion of counsel for respondents, based on the certificate of the clerk of the trial
court, the appeal in this case was dismissed. The clerk's certificate fully complies with the
requirements of section or part 2 of rule 3 of the supreme court, except the fact and time of
the settlement of the statement are not certified. It is certified that the defendant's statement
in said cause was filed on the 3d day of January, 1896; that no proposed amendments thereto
have ever been filed. When no amendments have been filed to a statement on motion for a
new trial, the statement shall be accompanied with the certificate of the clerk of that fact.
(Gen. Stats., sec. 3219.) And such certificate is sufficient authentication of the statement. But
not so in case of a statement simply on appeal. In such case, whether there be any proposed
amendments or not it seems that the judge or referee who tried the case may settle the
statement, and, when settled, shall be signed by him with his certificate that the same has
been allowed and is correct, or when the statement is agreed upon by the parties, they or
their attorneys shall sign the same, with their certificate that it has been agreed upon and is
correct. In either case, when settled or agreed upon, it shall be filed with the clerk. (Secs.
3354, 3355, 3357.)
It seems that statements on appeal must be authenticated by the judge or referee, or the
parties or their attorneys, in the manner provided by statute as above shown, and that it is not
sufficient, in such case, when no amendments have been filed, that the statement be
accompanied with the certificate of the clerk of that fact, as it would be in case of statement
on motion for new trial.
In dismissing the appeal, the court took it to be a fact that the statement was on motion for
new trial, the statement not being before it, and, the clerk's certificate showing that no
amendments had been filed thereto by respondents, no question as to the settlement of the
statement occurred to the court. But, on the motion of appellant to restore the appeal, it
appears that the statement is on appeal, and not on motion for new trial, and, under the
provisions of the statute, it being required that such statement must be signed and
certified as above shown, by the court or referee, or the parties or their attorneys, and it
appearing that the statement has not been thus or otherwise settled, the order dismissing
the appeal was improvidently granted under a mistake as to the facts of the case.
23 Nev. 233, 235 (1896) Hayes v. Davis
being required that such statement must be signed and certified as above shown, by the court
or referee, or the parties or their attorneys, and it appearing that the statement has not been
thus or otherwise settled, the order dismissing the appeal was improvidently granted under a
mistake as to the facts of the case.
Rule 2 of this court provides: In all cases where an appeal has been perfected and the
statement settled (if there be one) thirty days before the commencement of the term, the
transcript of the record shall be filed on or before the first day of such term.
Rule 3. If the transcript of the record be not filed within the time prescribed by rule 2, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party. * * *
It will be observed that only in case the appeal has been perfected, and the statement
settled (if there be one) thirty days before the commencement of the term, may the appeal be
dismissed on the ground that the transcript of the record has not been filed on or before the
first day of such term. The statement not having been settled, we are of opinion that, under
said rules, the appeal should not have been dismissed on the motion made by respondent's
counsel.
It is therefore ordered that the appeal be restored.
____________
23 Nev. 236, 236 (1896) McNamara v. Keating
[No. 1466.]
THOMAS McNAMARA, Jr., and MICHAEL McNAMARA, Surviving Partners of Thomas
McNamara, Jr., and Thomas McNamara, Sr., et al., Respondents, v. R. P. KEATING and
R. PENDERGAST, Appellants.
EstoppelAssignmentReceiving Benefit of Contract.Plaintiffs, at defendant Keating's request, assigned
their claims against certain mining companies to defendant Pendergast, defendant Keating promising to pay
plaintiffs the amount of their assignment upon recovery of judgment. Defendant Keating and one Watson
also assigned claims against the same mining companies to defendant Pendergast, said assignments being
made for the purpose of collecting the same in one suit against each of the said mining companies. Suits
were instituted by the said Pendergast and judgments for the full amounts recovered: Held, that in an action
by plaintiffs against defendants for the amount of their claims recovered, defendants are estopped to deny
the validity of plaintiffs' claims against the said mining companies, and that defendant Keating's request for
the assignment of the claims to Pendergast was sufficient consideration for the promise on his part.
Appeal from the District Court of the State of Nevada, Storey County; C. E. Mack, District
Judge:
Action by Thomas McNamara, Jr., Michael McNamara, et al., against R. P. Keating and
R. Pendergast. Judgment for plaintiffs, and defendants appeal. Affirmed.
Clayton Belknap and Robt. M. Clarke, for Appellants:
I. The plaintiffs, nor either of them, ever had a valid claim of any nature against the said
Bailey, Alabama and Humboldt Mining Companies, or either of them. They performed no
work or labor for those companies or either of them, nor did those companies, or either of
them, ever promise for or without a consideration to pay the plaintiffs or either of them any
sum of money whatever for work or labor or other cause or thing.
II. The claim assigned by Thomas McNamara, Sr., to defendant Pendergast was purely
fictitious, and in this claim neither the alleged copartnership, nor the plaintiffs, or either of
them, had any interest whatever; they were not parties to the claim or to the assignment, and
their names nowhere appear in the suits brought by Pendergast upon these assignments or in
the judgments obtained upon them.
ments or in the judgments obtained upon them. It is perfectly manifest that plaintiffs had no
interest in these claims or in the money, if any, realized from them. At least, it is evident that
these fictitious claims which arose after the alleged work was performed were not
copartnership claims and cannot be recovered except by the legal representatives of Thomas
McNamara, Sr.
III. There is no consideration to support said promise, if a promise be alleged, on the part
of Keating to pay plaintiffs, or either of them. Keating was not a party to the suit, and no legal
or equitable liability arises out of the suit against Keating in favor of plaintiffs, or either of
them. If there be any obligation on his part, it would be that Keating had received the money
or property which in equity belonged to the plaintiffs, but no such claim is made in the
pleadings, and the action is not based upon any such ground.
Denis H. Kehoe, for Respondents:
I. The claims having been assigned to defendants and having been set up as a cause of
action in the complaint and affidavits for attachment in the cases of Pendergast v. The Bailey
Mining Company, Pendergast v. The Humboldt Mining Company, and Pendergast v. The
Alabama Mining Company, the companies, having been legally served with notice of those
claims, did not deny the validity of the claims and allowed judgment to be entered against the
companies for the claims in full. Keating and Pendergast, having recovered the full amount of
the claims for their own use and benefit by selling the company's property on executions
issued on judgments in which the claims of plaintiffs were included, cannot now, for the first
time, deny the validity of the claims which they promised to pay plaintiffs for when collected,
and, having collected them, must pay plaintiffs the amount of the claims.
II. The making of the assignment of the claims plaintiffs held against the companies to
Pendergast was sufficient consideration to maintain this action against Keating and
Pendergast. The testimony of Thomas McNamara in this case shows that Keating promised to
pay plaintiffs the full amount of their claims at the time of making the assignments to
Pendergast; that he sent for the plaintiffs and brought them to the Savage office for that
purpose, and there and then agreed and promised to pay plaintiffs their portion when
collections were made from the companies on the suits which were afterwards brought in
the name of Pendergast.
ments to Pendergast; that he sent for the plaintiffs and brought them to the Savage office for
that purpose, and there and then agreed and promised to pay plaintiffs their portion when
collections were made from the companies on the suits which were afterwards brought in the
name of Pendergast. The testimony also shows that Keating many times afterwards admitted
the debt and promised to pay it as soon as he collected it; the testimony shows that it was
collected in June, 1895. Pendergast made the claims of plaintiffs cause of action in his
complaint against the Bailey, Humboldt and Alabama Mining Companies, and swore to their
correctness in his affidavits for attachment against said companies, thus using the property of
plaintiffs for his own use and benefit. The law will imply a promise on his part to pay
plaintiffs.
The plaintiffs, by their complaint, allege, in substance and in brief, that a partnership
existed between them and Thomas McNamara, Sr., in certain claims against the Bailey,
Humboldt and Alabama Mining Companies, corporations, in the sum of $300 against each of
said companies, for work and labor done by them in the year 1889, on said companies' mining
claims, located in Storey county, at the request of defendant, R. P. Keating, the then
superintendent of said companies; that said Keating at the same time had a claim for the sum
of $5,700 against each of said companies, for services as such superintendent; that the
plaintiffs and Keating, in August, 1889, assigned all of their said claims to defendant, R.
Pendergast, for the sole purpose of collecting the same in one suit against each of said
companies in the name of said Pendergast; that the claims of the plaintiffs for the sum of
$300, against each of said companies were assigned as aforesaid; that in consideration of such
assignments the defendants promised to pay plaintiffs $900, the full sum of their said claims
as soon as defendants realized and collected the same on judgments to be obtained against
said companies; that suits were brought on all of said claims in the name of said Pendergast,
in the district court of the state of Nevada, in and for Storey county, and judgments recovered
for the full amount thereof against said companies, with interest and costs of the suits; that
the defendants have, within one year prior to the bringing of this action, realized on said
claims and judgments and collected more than the whole of all of said claims assigned as
aforesaid by the plaintiffs and Keating to Pendergast; that no part thereof has been paid
to the plaintiffs; that no part thereof has been paid to the plaintiffs; that on the 16th day
of November, 1S93, said Thomas McNamara, Sr., died, leaving the plaintiffs herein the
sole surviving partners of said partnership, and plaintiffs prayed for judgment against the
defendants for the said sum of $900, with interest and costs.
with interest and costs of the suits; that the defendants have, within one year prior to the
bringing of this action, realized on said claims and judgments and collected more than the
whole of all of said claims assigned as aforesaid by the plaintiffs and Keating to Pendergast;
that no part thereof has been paid to the plaintiffs; that on the 16th day of November, 1893,
said Thomas McNamara, Sr., died, leaving the plaintiffs herein the sole surviving partners of
said partnership, and plaintiffs prayed for judgment against the defendants for the said sum of
$900, with interest and costs.
The defendants demurred to the complaint on several specific grounds. The demurrer was
overruled, and the defendants answered, their answers consisting only of denials. The case
was tried by the court sitting with a jury. The jury returned a verdict in favor of the plaintiffs
and against the defendants for the sum of $900. Judgment was entered accordingly, with
interests and costs of suit taxed at $135 40. The defendants appeal from said judgment and
the order of the court denying their motion for new trial.
There is evidence tending to show the following state of facts: That defendant Keating, in
1880, became the superintendent of the Bailey Mining Company, a corporation, the
Humboldt Mining Company, a corporation, and the Alabama Mining Company, a
corporation; that there is a mine known as the Bailey lode or mine, situated in Storey county;
that each of said mining companies owned segregated portions of said lode or mine; that
defendant Keating, as such superintendent, had employed Thomas McNamara, Sr., to do the
assessment work on this lode for said companies for several years, and had McNamara do all
the assessment work for these companies on the Humboldt claim on said lode; that in April or
May, 1889, Keating, as such superintendent, verbally leased to McNamara said mine; that by
the terms of said lease the lessee was to run a tunnel and tap the bottom of a certain shaft,
filled with water, situated on the Humboldt claim, and that the lessee was to have all the ore
he might take out for six months from the date of tapping said shaft; that the plaintiffs,
Thomas McNamara, Jr., and Michael McNamara, by agreement between the three, became
partners with Thomas McNamara, Sr., in said lease, each of the three to have an equal
interest therein; that as such partners they prosecuted work under said lease on said
mine; that during said work they struck some ore or rock, had it assayed; defendant
Keating saw the assay, and sent for McNamara, Sr., and proposed to allow him $900 for
the work that had been done, $300 to be paid by each company, if he would assign to R.
Pendergast a claim for work in the sum of $300 against each of said companies; that
McNamara, Sr., thinking that Keating wanted to break said lease, refused to make the
assignment; that Keating sent for Thomas McNamara, Jr., who went to said defendant's
office, and on inquiring of Keating if he wanted to break the lease, Keating informed him
that they had no lease, that a verbal lease was not good; that McNamara, Jr., reported the
same to McNamara, Sr., and they concluded that they had better take the $900 rather
than get nothing; that Thomas McNamara, Sr., and Jr., returned to the office of defendant
Keating, the superintendent, and that McNamara, Sr., executed the assignments as
requested by Keating, with the knowledge and consent of plaintiffs, he {Keating)
promising to pay therefor the $900 as soon as the same was realized on said claims and
the judgments to be recovered against said several mining companies; that defendant
Keating assigned to defendant R.
the three to have an equal interest therein; that as such partners they prosecuted work under
said lease on said mine; that during said work they struck some ore or rock, had it assayed;
defendant Keating saw the assay, and sent for McNamara, Sr., and proposed to allow him
$900 for the work that had been done, $300 to be paid by each company, if he would assign
to R. Pendergast a claim for work in the sum of $300 against each of said companies; that
McNamara, Sr., thinking that Keating wanted to break said lease, refused to make the
assignment; that Keating sent for Thomas McNamara, Jr., who went to said defendant's
office, and on inquiring of Keating if he wanted to break the lease, Keating informed him that
they had no lease, that a verbal lease was not good; that McNamara, Jr., reported the same to
McNamara, Sr., and they concluded that they had better take the $900 rather than get nothing;
that Thomas McNamara, Sr., and Jr., returned to the office of defendant Keating, the
superintendent, and that McNamara, Sr., executed the assignments as requested by Keating,
with the knowledge and consent of plaintiffs, he (Keating) promising to pay therefor the $900
as soon as the same was realized on said claims and the judgments to be recovered against
said several mining companies; that defendant Keating assigned to defendant R. Pendergast a
claim of $5,700 against each of said companies for services rendered as superintendent
thereof; that H. H. Watson assigned to said Pendergast a claim of $500 against each of said
companies for services as secretary thereof, the aggregate amount of the claims so assigned
being $6,500 against each company; that Pendergast brought suit in the district court of the
state of Nevada, in and for Storey county, on these several assigned claims, against each
company, and on the 5th day of December, 1889, recovered a judgment thereon, in each case,
for the sum $6,500; that subsequently, and in 1890, the sheriff of Storey county duly sold the
said several mining claims belonging to said several mining companies on executions issued
on said several judgments, on the bids and for the sum of $5,000, $4,500 and $4,500,
respectively; that the money derived from the sheriff's sales was paid to the sheriff by
defendant Keating; that the several mining claims sold at said sheriff's sales were bought in
the name of Charles Herschfeld, without his knowledge at the time; that he paid nothing
therefor; that Herschfeld assigned the sheriff's certificates of said sales to Joseph Marks,
without consideration; that Joseph Marks received the sheriff's deeds for said mining
claims; that Marks conveyed said mining claims to the Hearst Gold and Silver Mining
Company, a corporation, without consideration; that said Hearst Company sold and
conveyed 2,1S3-1J2 feet of said mining claims to certain of the Comstock mining
companies for $27,293 75, and conveyed to the California Title, Insurance and Trust
Company, a corporation, SS5 feet of said mining claims for an expressed consideration of
$10; that over $21,000 of the amount of said sales to the Comstock mining companies
have been received.
were bought in the name of Charles Herschfeld, without his knowledge at the time; that he
paid nothing therefor; that Herschfeld assigned the sheriff's certificates of said sales to Joseph
Marks, without consideration; that Joseph Marks received the sheriff's deeds for said mining
claims; that Marks conveyed said mining claims to the Hearst Gold and Silver Mining
Company, a corporation, without consideration; that said Hearst Company sold and conveyed
2,183-1/2 feet of said mining claims to certain of the Comstock mining companies for
$27,293 75, and conveyed to the California Title, Insurance and Trust Company, a
corporation, 885 feet of said mining claims for an expressed consideration of $10; that over
$21,000 of the amount of said sales to the Comstock mining companies have been received.
There are numerous objections made and points raised by counsel for appellants and urged
by them against the sufficiency of the evidence and the validity of the judgment, among
which are that the plaintiffs, nor either of them, ever had a valid claim of any nature against
the said Bailey, Alabama and Humboldt Companies, or either of them; that they performed
no work or labor for these corporations, or either of them, nor did these companies, or either
of them, ever promise for or without a consideration to pay the plaintiffs, or either of them,
any sum of money whatever for work or labor or other cause or thing, and that these claims
against said companies were purely fictitious.'
While these alleged facts, if true, might have been proper grounds for the said companies
to urge against the validity of these claims in the Pendergast suits, they certainly are not
available to the defendants in this case. Whether these claims against said companies were
valid or not is immaterial. But we discover nothing to impeach their validity, or the good faith
of the plaintiffs, or their deceased partner, with reference thereto. As the evidence tends to
show, they gave up whatever rights or privileges they had under the lease, which they
considered to be and which might have been very valuable, and agreed to take in lieu thereof
the sum of $900 for their work, and assigned these claims to Pendergast, at defendant
Keating's request, on his promise to pay them said sum when he should realize the same on
judgments to be obtained against said companies.
ments to be obtained against said companies. Instead of these claims being fraudulent as
against said companies, the record shows that their validity was admitted by said companies,
and the judgments of the district court in said suits affirmed it. Not only this, but the work
done under the lease, on the Humboldt ground, it would seem inured to the benefit of all three
of the companies, as the assessment work did which had been done for a series of years, at the
same place, by Thomas McNamara, Sr., at request of defendant Keating, the superintendent
of said companies.
We can see nothing but a plain business transaction between all the parties concerned in
leasing these claims and in annulling the lease by agreement, the plaintiffs agreeing to take
$900 for the work done, and said companies being made responsible therefor through their
superintendent, and defendant Keating agreeing to pay the same when realized as before
stated.
Counsel for appellants argue that there is no consideration to support said promise, if a
promise be alleged, on the part of Keating, to pay plaintiffs, or either of them. Certainly the
assignment of said claims to Pendergast at the request of Keating is sufficient consideration
for said promise on his part. It appears from Keating's testimony that said assignments were
of benefit and advantage, not only to him but to the said companies. His testimony is to the
effect that one Bell held a fraudulent promissory note or notes against said companies in the
sum of $15,000; that Bell was about to sue thereon; that in order the better to thwart the
unlawful designs of Bell and defeat the collection of his fraudulent notes, he (Keating)
assigned his claim, and procured those other assignments to be made to Pendergast in order
that suits might be brought thereon against each of said companies before Bell brought his
suit; that this was done to protect the stockholders of said companies against Bell's said
fraudulent demand, and that he (Keating) was at the time a stockholder in these companies to
the amount of 30,000 shares, and that he was acting in the matter to protect his own interests
as such stockholder. It clearly appears that the above-named objects and purposes were
accomplished by means of said assigned claims, said judgments and sales of said mines to
said Comstock mining companies, and that more than enough money was received from
said final sales to cover the whole amount of said judgments.
ments and sales of said mines to said Comstock mining companies, and that more than
enough money was received from said final sales to cover the whole amount of said
judgments. Defendant Keating in his testimony admits, in effect, that one of the $300 claims
assigned to Pendergast is correct, but claims that it is payable to the estate of McNamara,
deceased, and not to the plaintiffs, as he is advised by his attorney. It appears, however, that
each of the $300 claims grew out of the same transaction and is a part thereof, and that all of
them are based on the same facts and circumstances, and that said plaintiffs, as the surviving
partners of said deceased, are entitled by law to collect whatever is due thereon.
We regard all objections and points raised by appellant's counsel against the plaintiff's
right to recover as being merely technical and without merit.
We are of opinion that the judgment and order appealed from should be affirmed.
It is so ordered.
Bigelow, C. J.: I concur.
Belknap, J., did not participate in the above decision.
____________
23 Nev. 243, 243 (1896) State v. District Court
[No. 1463.]
STATE OF NEVADA, ex rel. WILLIAM THOMPSON, Petitioner, v. SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, COUNTY OF WASHOE, Hon. A.
E. Cheney, Judge, Respondent.
CertiorariWhen LiesJurisdiction of CourtCosts.Stats. 1869, p. 196, amended by Stats. 1873, p. 101
(Gen. Stats., sec. 582), declares that the district court may regulate the practice in cases appealed thereto in
all respects not provided for by statute, providing that appellant, unless he recover a judgment more
favorable to himself than that appealed from, shall pay the costs of respondent on appeal; but that,
whenever the appellate judge shall be satisfied that appellant had reasonable grounds for his appeal, he may
order costs to be taxed against respondent, or may apportion the same between the parties. Gen. Stats., sec.
3464, provides that the review in certiorari shall not be extended further than to determine whether the
inferior tribunal has regularly pursued its authority: Held, that since the district court has jurisdiction of the
question of costs under the former section, error in allowing any costs not properly taxable against a party
cannot be reviewed on certiorari.
Original proceeding. Application for writ of certiorari by William Thompson to the
Second Judicial District Court of the State of Nevada, in and for Washoe county; A. E.
Cheney, District Judge. Writ dismissed.
R. M. Clarke and T. V. Julien, for Petitioner.
Curler & Curler, for Respondent:
I. Certiorari will not be allowed to usurp the functions of a writ of error, but will be
restricted to inquires of jurisdiction. (Gen. Stats. 3464; 4 Ency. of Pleading and Practice, 127;
Phillips v. Welch, 12 Nev. 158; Fall v. Commissioners, 6 Nev. 100; Buckley v. Superior
Court, 96 Cal. 119.)
II. The court, respondent herein, had jurisdiction to hear and determine petitioner's
motion. (State ex rel. Quinn v. District Court, 16 Nev. 76; Petty v. County Court, 45 Cal.
245; Dezerille v. Superior Court, 59 Cal. 180.)
III. The court, respondent herein, having had jurisdiction to hear and decide the motion, it
is entirely immaterial, for the purposes of this proceeding, whether its decision is correct or
erroneous. (Phillips v. Welch, 12 Nev. 158; In re Wixom, 12 Nev. 219; State ex rel. Quinn v.
District Court, 16 Nev. 76; Sherer v. Superior Court, 96 Cal. 653; History Co. v. Light, 97
Cal. 56.)
IV. Had the two items of $50 each been stricken from the complaint, without any
qualification, any future action upon them against petitioner would have been barred and the
judgment of the district court would have been $100 more favorable to petitioner than was the
judgment of the justice court, but the items having been stricken out without prejudice, it
does not necessarily follow that petitioner's liability was diminished by the judgment of the
district court.
V. Respondent submits that both in terms and in spirit the statute is as follows: (1) If the
judgment is not reduced on appeal, the appellant loses his own costs and shall pay
respondent's costs. (2) If the judgment appealed from is reduced, the appellant may recover
his costs on appeal and respondent may lose his costs on appeal. (3) That in all cases where
the judge is satisfied from the evidence that the appeal was taken in good faith to promote
justice, the costs may be taxed against respondent or may be apportioned between the
parties.
appeal was taken in good faith to promote justice, the costs may be taxed against respondent
or may be apportioned between the parties.
Torreyson & Summerfield recovered judgment against William Thompson for $298 25 in
justice's court of Reno township. Thompson appealed to the district court.
Upon the appeal plaintiffs recovered judgment for the sum of $198 25. The district court
apportioned the costs between the parties. Relator claims that the action of the court in the
matter of costs was in excess of its jurisdiction, and at his instance a writ of certiorari has
been issued to review its action.
The section of the statute touching appeals from justice's courts is a follows:
Section 582. All causes appealed to the district court shall be tried anew in said court, and
said court may regulate by rule the practice in such cases in all respects not provided for by
statute; provided, that the appellant shall in no case recover from respondent the cost incurred
on appeal, unless he recover in the district court a judgment more favorable to himself than
the judgment appealed from, but shall, unless he recover in the district court a judgment more
favorable to himself than the judgment appealed from, pay the costs of respondent on appeal;
and if such judgment be a money judgment in favor of appellant, and of sufficient amount to
cover respondent's costs, such costs shall be deducted from said judgment; and in all other
cases respondent shall have judgment against the appellant for the amount of his costs so
incurred; provided, that whenever the judge of the appellate court shall be satisfied from the
evidence that the appellant had reasonable grounds for his appeal, and that such appeal was
taken in good faith for the sole purpose of promoting the ends of justice, such judge may then
order such costs to be taxed against the respondent, or may apportion the costs between the
parties in such manner as will be just. (Stats. 1873, p. 101.)
The statute relating to the writ of certiorari declares that the review upon this writ shall
not be extended further than to determine whether the inferior tribunal, board or officer
has regularly pursued the authority of such tribunal, board or officer."
than to determine whether the inferior tribunal, board or officer has regularly pursued the
authority of such tribunal, board or officer. (Gen. Stats., 3464.)
Following this statute, we have no power to determine any other question than the
jurisdictional one. It is plain that, under the provisions of section 582, above quoted, and
under which the court evidently acted, it had jurisdiction of the question of costs, and if it
erred in allowing any costs that were not taxable against the relator, it was not an excess of
jurisdiction, and its action cannot be reviewed upon certiorari. (In re Wixom, 12 Nev. 219;
State v. Dist. Court, 16 Nev. 76.)
The writ, therefore, should be dismissed, and it is so ordered.
____________
23 Nev. 247, 247 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JULY TERM, 1896.
____________
23 Nev. 247, 247 (1896) State v. Washoe County Comm'rs
[No. 1464.]
STATE OF NEVADA, ex rel. WILLIAM THOMPSON and H. H. BECK, Petitioners, v.
THE BOARD OF COUNTY COMMISSIONERS OF WASHOE COUNTY,
Respondent.
CertiorariWhen Lies to Board of County Commissioners.The writ of certiorari will only run to a board of
county commissioners as to matters in which they exercise judicial functions.
IdemEmployment of Attorneys by County Commissioners Not Exercise of Judicial Function.The making of
an order by such board, whereby it was ordered that a firm of attorneys be employed in a certain litigation
in which the county was interested, is not the exercise of judicial functions, and such order will not be
reviewed on a writ of certiorari.
IdemDefect of PartiesEffect on Judgment.Where, owing to a defect of parties before the court upon such
a writ, any judgment that might be entered would not be binding upon the real parties in interest, the writ
will be dismissed. (Syllabus by Bigelow, C. J., Bonnifield, J., dissenting.)
Original Proceeding. Application by the State, on the relation of William Thompson and
H. H. Beck, against the Board of County Commissioners of Washoe county, for a writ of
certiorari. Writ dismissed.
R. M. Clarke and T. V. Julien, for Petitioners.
F. H. Norcross, District Attorney, for Respondent:
I. The respondent, board of county commissioners, in employing attorneys to assist the
district attorney, did not exercise judicial functions. Its action therein was purely executive,
and is not subject to review upon certiorari. The writ of certiorari is only granted when an
inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of
such tribunal, board or officer. (Gen. Stats. 3458; State ex rel. Mason v. Commrs., 7 Nev.
392; In re Rourke, 13 Nev. 253; Townsend v. Copeland, 56 Cal. 612; People v. Park
Commrs., 97 N. Y. 37; 4 Ency. Pleading and Practice, 80; McCabe v. Commissioners, 46 Ind.
382.)
II. Boards of county commissioners have authority to employ attorneys to protect the
interests of their counties in any litigation affecting them and to bind their counties by
contracts for the payment of such attorneys' fees. (Clarke v. Washoe County, 7 Nev. 75; Ellis
v. Washoe County, 7 Nev. 291; Clarke v. Lyon County, 8 Nev. 181; Smith v. Mayer, 13 Cal.
531; Hornblower v. Duden, 35 Cal. 664.)
January 7, 1896, the defendant, by an order duly entered on its minutes, employed
Torreyson & Summerfield, attorneys, to assist the district attorney in certain tax litigation in
which the county was interested, and agreed to pay them therefor the sum of $1,000. The
relators, as taxpayers of said county, have applied to this court for a writ of certiorari to annul
and set aside that order and agreement, on the ground that the board had no authority to make
it.
The first question that arises is upon the respondent's objection that in making the order
the board did not exercise judicial functions. That it is only for the exercise of such functions
that a writ of certiorari will lie is the plain reading of the statute. (Gen. Stats. 3458), and has
been so often decided both by this and nearly all other courts that there is now no question
concerning it. (Esmeralda County v. Third District Court, 18 Nev. 438; In re Rourke, 13 Nev.
253; People v. Board of Education, 54 Cal. 377; People v. Bush, 40 Cal. 345; Spring Valley
Co. v. Bryant, 52 Cal. 138; People v. Park Commissioners, 97 N. Y. 37; People v. Walter, 68
N. Y. 403; People v. Supervisors, 43 Barb. 234; People v. Carr, 23 N. Y. Supp.
People v. Supervisors, 43 Barb. 234; People v. Carr, 23 N. Y. Supp. 112, and the numerous
authorities cited in 4 Ency. Plead. & Prac. 74, et seq.)
The only question there ever can be is as to whether the board or other tribunal was, in the
given instance, exercising judicial functions, or those that are ministerial, executive or
legislative.
In an early day in California, under a constitution and statutes from which ours were, upon
this matter, substantially copied, it was held that as the supervisors of a county were not
judicial officers or charged with the exercise of judicial duties, it results that a writ of
certiorari cannot properly be directed to them. (People v. Hester, 6 Cal. 649.) Subsequently,
however, this ruling was modified, it being recognized that the board did sometimes act in a
judicial capacity, and it followed that as to such actions the writ was proper. (People v. El
Dorado County, 8 Cal. 61.) Which of these capacities they are acting in, depends upon the
subject matter of their action.
Theoretically, the distinction between these powers is clearly defined. The legislative
branches of the government make laws and ordinances, and establish rules for the future
conduct of men; the executive and ministerial, which includes most of the state and county
officers, execute the laws; and the judiciary determines rights and controversies arising under
them; but in the practical application of these principles, difficulties arise.
The exercise of a judicial function is the doing of something in the nature of the action of a
court. In re Saline County Subscription, 45 Mo. 52, in considering this point the court said:
Judicial action is an ajudication upon the rights of the parties who in general appear or are
brought before the tribunal by notice or process, and upon whose claims some decision or
judgment is rendered.
Courts do not make contracts, and the making of a contract has none of the elements of
judicial action. It follows that the making of this contract for the employment of attorneys in a
lawsuit, was not an exercise of the judicial functions that are vested in the board, and
consequently the writ of certiorari cannot be sustained. It must be remembered in this
connection that whether the board had power and authority to make that contract cuts no
figure in the present consideration.
bered in this connection that whether the board had power and authority to make that contract
cuts no figure in the present consideration. If it did not, then the contract is invalid and cannot
be enforced, but, as already stated, whether its making was the exercise of a judicial function
depends upon the nature of the act, and not upon the authority of the board. A board would
not have power to enact a law for the punishment of felonies in the county, but if it should do
so, while its action would be a nullity, it would not constitute a judicial action, and it could
not be set aside by writ of certiorari.
Nor does the fact that the board was called upon to exercise judgment and discretion in the
execution of the contract make it a judicial action in the meaning of the statute, for judgment
and discretion must be exercised in almost every action in life, by boards as well as others,
and the application of this principle would make their action subject to review by this writ,
while it is clear that such was not intended to be the case.
In People v. Board of Education, 54 Cal. 377, the board had made a change in the
text-books to be used in the schools of Oakland. Upon certiorari to review their action upon
the ground that they had no authority to make the change, it was objected that the action was
not judicial, and therefore that the writ would not lie. In sustaining this point the court said:
It is conceded that the board exercised its judgment in the action which it took, but this it
was called to do in the exercise of its legislative functions. It is apparent that the exercise of
judgment is not the criterion by which this proceeding must be viewed to determine its
character. To render it the exercise of a judicial function, its judgment must act in a matter
which is judicial in the sense above indicated.
In People v. Carr, 23 N. Y. Supp. 112, the court held: The duties discharged were purely
ministerial, although requiring the exercise of judgment and discretion. In such cases
certiorari will not lie.
And again in People v. Supervisors, 43 Barb. 237: To sustain the writ there has been
quite a tendency to enlarge the sphere of judicial acts, and to regard almost every kind of
official act requiring or involving the exercise of judgment or discretion as a judicial act.
official act requiring or involving the exercise of judgment or discretion as a judicial act. But
this, I think, is a mistake. There is scarcely an act of any public officer or body, or of persons
clothed with special powers by or under the authority of law, which does not require and
involve more or less discretion. It is simply absurd to call all such acts judicial, and apply to
them the principles which govern the review of the proceedings of courts and of judicial
officers.
So, in the matter of Saline County Subscription, 45 Mo. 55, where the point under
consideration was whether a subscription to the stock of a railroad made by the county court
was a judicial action which could be reviewed by the court, it was said: And all the cases are
inconsistent with the idea that the exercise of a discretionary power, given by law to the
county court of Saline county, if it be given to make a subscription to the stock of a railroad,
can be in any sense a judicial proceeding. A court has no discretion, but must render
judgment according to the facts and the law, while this subscription might have been made or
refused. The judges were bound, it is true, to act with good judgment, judiciously; but
exercising a sound judgment is by no means synonymous with rendering judgment, and
acting judiciously is not always acting judicially.
That the making of a contract by a board of commissioners is not a judicial act is
supported by the reasoning or the direct decision of every well-considered case we have been
able to find. In People v. Carr, supra, already quoted from, a writ had been sued out for the
purpose of reviewing the action of the secretary of state, the comptroller, and the state
reporter, as a contracting board, in making a contract for the publication of the reports of the
court of appeals. In deciding the case the court used this language: The remarks already
made indicate quite clearly that the action of the defendants was in no sense judicial, and
hence not reviewable by certiorari. The defendants were the agents of the state to make a
contract. If they have kept within the power and authority granted them by statute, the
contract is valid; otherwise it is not binding.
In People v. Walter, 68 N. Y. 410, the court of appeals of that state said: It is well settled
that a certiorari does not lie to a ministerial officer, and the fact that a public agent
exercises judgment and discretion in the performance of his duties does not make his
action or powers judicial in their character.
lie to a ministerial officer, and the fact that a public agent exercises judgment and discretion
in the performance of his duties does not make his action or powers judicial in their character.
The superintendent of the new capitol exercises judgment in the making of contracts, and in
performing his many duties, but he does not exercise judicial powers. People v. Supervisors,
25 Hun, 131, is to the same effect.
We have found no cases where the contrary has been decided, although there are cases,
both in this court and others, where the point was not made by the attorneys, nor noticed by
the court, when, had it been made, it would doubtless have been conclusive. Sadler v. Eureka
County, 15 Nev. 39, comes under this head. Such cases are, of course, not decisions upon the
question, it not being jurisdictional, and cut no figure in determining it. But should we
overrule the objection now that it has been made, it would be, in effect, to decide that the
courts, through the writ of certiorari, have a superintending control over the action of every
officer in the state to the extent, at least, of determining whether they had authority to act, and
of setting aside their action if they did not. It would be a larger task than was intended the
courts should undertake.
Upon another ground the court should refuse to entertain the writ in the present case. The
necessary parties are not before us, and any decision we might render would really settle
nothing. It is a well-known principle that no man's rights can be concluded by a judgment
unless he is a party or privy to the action, and has been given his day in court. Neither
Torreyson & Summerfield nor Washoe county is a party to this proceeding, and the former
certainly would not be, and the latter probably would not be, concluded by the decision
rendered here. Should the decision here be against the validity of the order made by the board,
they could still sue the county upon its agreement, and litigate the whole question over again,
and should it be in their favor, it would not preclude the county from doing the same thing. A
writ of certiorari is not an absolute righta debt of justicebelonging to a petitioner. It only
issues in the discretion of the court, and where such a state of facts as these exist, it should be
refused. (People v. Supervisors, 34 N. Y. 516; People v. Board Commissioners, 97 N. Y. 37;
People v. Walter, 6S N. Y. 403, 407; Black v. Brinkley, 54 Ark.
People v. Board Commissioners, 97 N. Y. 37; People v. Walter, 68 N. Y. 403, 407; Black v.
Brinkley, 54 Ark. 372; 4 Ency. Plead. & Prac. 183.)
These considerations require the dismissal of the writ and rendered it neither necessary nor
proper to pass upon the question of the powers of the board to make the order complained of.
The writ of dismissed.
Bonnifield, J., dissenting:
The record in this case shows the following matters: The law firm of Torreyson &
Summerfield submitted to said board a communication in writing, dated January 7, 1896,
which is as follows: * * *
Gentlemen: We agree and undertake to conduct, in connection with the district attorney
of Washoe county, Nevada, all necessary litigation for the collection of the taxes for the year
1895 due or unpaid from the Virginia and Truckee Railroad Company, a corporation, to the
treasurer of Washoe county, Nevada, for the compensation of one thousand dollars ($1,000),
as full payment for such services in the matter of the said litigation. TORREYSON &
SUMMERFIELD.
On the same date the following proceedings were had by the board and entry thereof made
in their minutes: * * * A communication was received from Torreyson & Summerfield in
regard to assisting the district attorney in collecting the taxes due the county for the year
1895, from the Virginia and Truckee R. R. Co., which was read and placed on file. It is
hereby ordered that Torreyson & Summerfield be employed to assist the district attorney, in
all necessary litigation for the collection of the taxes for the year 1895, due and unpaid from
the Virginia and Truckee Railroad Company, a corporation. The said law firm of Torreyson &
Summerfield to be paid the sum of one thousand ($1,000) dollars as fee or compensation for
their said litigation. The said fee to be paid when the said litigation is finally completed.
The question to be determined in this case is: Did the said board of commissioners
exceed their jurisdiction in the premises?
said board of commissioners exceed their jurisdiction in the premises?
In 1865 the legislature passed An act to create a board of county commissioners in the
several counties of this state, and to define their duties and powers. (Gen. Stats., p. 529.) By
the eighth section of said act (Gen. Stats., sec. 1949) it is provided: The board of
commissioners shall have power and jurisdiction in their respective counties: * * *
EleventhTo cause to be erected and finished a court house, jail and such other public
buildings as may be necessary, and to keep the same in repair; provided, that the contract for
building the court house, jail and other buildings be let out after at least thirty days' previous
public notice * * * to the lowest responsible bidder, who will give good and sufficient
security for the completion of any contract which he may make respecting the same, but no
bid shall be accepted which the board may deem too high.
TwelfthTo control the prosecution or defense of all suits to which the county is a
party.
There is no provision in the above-named statute requiring any notice to be given for the
letting of any contract, or that any contract shall be let to the lowest bidder, whatever the
amount thereof may be, except contracts for building the court house, jail and other public
buildings. But an act supplementary to the above-named act (Gen. Stats., 538) provides: In
letting all contracts, of any and every kind, character and description whatever, where the
contract in the aggregate amounts to $500 or more, the county commissioners shall advertise
such contract or contracts to be let, stating the nature and character thereof; and when plans
and specifications are to constitute part of such contracts, it shall state in the notice where the
same may be seen. * * * All such contracts shall be let to the lowest responsible bidder.
Subject to the provisions of section 23 of the act to which this is supplementary.
It will be observed that said supplementary act provides that: All such contracts shall be
let to the lowest responsible bidder, subject to the provisions of the 23d section of the
original act. What contracts are referred to by the words all such contracts? Evidently to
all contracts of any and every kind, character and description whatever, where the
contract in the aggregate amounts to $500 or more."
any and every kind, character and description whatever, where the contract in the aggregate
amounts to $500 or more. What is meant by providing that these contracts shall be let
subject to the provisions of the 23d section of the original act? Simply that no member of
the board shall be eligible to put in a bid for, or receive any such contract, or be interested
therein. Said section 23 provides: No member of the board of county commissioners shall be
interested, directly or indirectly, in any property purchased for the use of the county, or in any
purchase or sale of property belonging to the county, nor in any contract made by the county
for the erection of public buildings, the opening or improvements of roads, or the building of
bridges, or for other purposes. And a violation of the above provisions is made a
misdemeanor.
Counsel for respondent contend that it was not the intent of the legislature to include such
contracts as the one under consideration by the passage of the supplementary act; that said
23d section refers to contracts for the purchase and sale of property for the county, for the
erection of public buildings, for the opening and improvement of roads, for the building of
bridges, and for other purposes, and that, under the familiar rule of ejusdem generis,
contracts for other purposes' will be limited to contracts of the same general character of the
preceding classification. That is, that the phrase for other purposes in said 23d section was
not intended to embrace contracts for the employment of attorneys. If their construction of
said 23d section be correct, it follows, as will be seen at once, that, by that section, the
legislature intended, simply, to prohibit the county commissioners from being interested in
the class of contracts specified therein and those of a similar character, and did not intend to
make it unlawful for them to be interested in the contracts for the employment of attorneys, or
to participate in the fees they may bind the county to pay.
Under such construction of the phrase for other purposes, a county commissioner, if he
should be a licensed attorney, would not be prohibited by that section from entering into a
contract with the board to prosecute or defend any and all suits to which the county might be
a party. Certainly such freedom of action on the part of commissioners is not within either
the letter or spirit of that section, nor of any act of the legislature.
tainly such freedom of action on the part of commissioners is not within either the letter or
spirit of that section, nor of any act of the legislature. Whether or not county commissioners
shall be empowered to employ attorneys to prosecute or defend suits in which the county may
have an interest, or to assist the district attorney therein, is a matter wholly in the discretion of
the legislature. When such power is conferred it must be exercised like every other power, if
at all, in the mode prescribed by the statute. If it be exercised otherwise than, substantially, in
the manner required, the commissioners exceed their jurisdiction. Whether the best or the
worst method, for the employment of attorneys for counties by the several boards, has been
provided or not, is not for the courts or the boards to determine.
It is said by counsel that the construction sought to be placed upon the statute by
petitioners is violative of its spirit and subversive of the general principles controlling the
relations of attorney and client. The construction that the petitioners, or relators, place on the
said supplementary act is, that it embraces contracts for the employment of attorneys when
the contract amounts to $500 or more. Why this construction is violative of the spirit of the
act is not made manifest. In Sadler v. Eureka County, 15 Nev. 39, the object of the legislature
in requiring certain contracts to be let out to the lowest responsible bidder, upon due notice
given, is declared to be for the protection and benefit of the public, and that these provisions
of the law were intended to guard against favoritism, extravagance or corruption in letting
such contracts. Such, evidently, was the intention of the legislature. It would seem, therefore,
that to subserve these purposes, contracts for the employment of attorneys are within the spirit
of the statute as well as its letter, the same as any other class of contracts; and that these
restrictive provisions were intended to apply to all contracts that amount to the sum named.
Why should the public not have the protection and benefit of these provisions of the
supplementary act, and why should favoritism, extravagance and corruption not be guarded
against as well in employing attorneys as in the making of any other class of contracts? If
there be any good reason therefor it has not been disclosed.
been disclosed. Nor does it appear how or why such construction contended for by relators is
subversive of the general principles controlling the relations of attorney and client. In
whatever mode attorneys may be employed, whether under the system of bids and the letting
of the contract to the lowest responsible bidder, or otherwise, the county is the client and not
the commissioners, and the general principles controlling the relations of attorney and
client remain precisely the same.
In the case at bar the attorneys employed by the board put in a bid to assist the district
attorney in said litigation for a specified fee of $1,000, and on that bid the contract was made.
Certainly there was not subversion of the general principles controlling the relations of
attorney and client, by entering into such contract, nor can we see how the matter, in that
respect, would have been different, if other bids had been made, and the contract awarded to
the lowest responsible bidder. Doubtless if some other competent and responsible attorney, or
firm of attorneys, had bid for the employment and named a less sum as a fee, the latter bid
would have been accepted instead of the former. At least no valid reason can be assigned why
the commissioners should not have done so. But the question in this case is not whether the
one or the other mode of employing attorneys for the county is the better policy, but what is
the mode intended to be adopted by the legislature.
The language of the supplementary act, all contracts of any and every kind, character and
description whatever, where the contract in the aggregate amounts to $500 or more, is
certainly broad and comprehensive enough to include contracts for the employment of
attorneys to prosecute or defend suits in which the county is a party, as well as every other
contract into which the board is authorized to enter when the same amounts to $500 or more.
The language of the statute excludes all exceptions as to contracts of the designated amounts.
It seems that the legislature took unusual care in selecting language with which to express its
will and intent, so that no one might be misled with reference thereto. It is said that,
notwithstanding the language and broad terms used, it was not intended to include contracts
for the employment of attorneys.
include contracts for the employment of attorneys. In answer it may be said that if it was the
intention to except these contracts, the exception could and would have been made in terms
not to be misunderstood, or the language quoted above would have been restricted so as to
include only certain classes of contracts, by which contracts for the employment of attorneys
would have been excluded. No one will deny that the language used is comprehensive enough
to embrace the class of contracts such as the one under consideration, and that it is plain and
free from ambiguity. Then if the rule of construction, laid down by this court and numerous
other authorities, be adhered to, the conclusion must be reached that contracts for
employment of attorneys are not excepted from the provisions of said supplementary act, but
were intended to be included therein.
Where the language of a statute is plain, its intention must be deduced from such
language, and courts have no right to go beyond it. (State ex rel. Lewis Hess et al. v. The
County Commissioners of Washoe County, 6 Nev. 104.)
The duty of every court in construing a statute is to seek the legislative intent to reach the
object sought to be expressed and accomplished; but in so doing a court is bound by rules; it
cannot go fishing in the minds of its members, or the legislative mind, to reach the desired
end; and the first step is, if possible, to ascertain the intent from the language of a statute, and
when that is clear and unambiguous, then inquiry stops, because the law says it shall stop.
(Virginia & Truckee Railroad Co. v. The Commissioners of Lyon County, 6 Nev. 69.)
A fundamental principle in all construction is that where the language used is plain and
free from ambiguity that must be the guide. We are not permitted to construe that which
requires no construction. (State v. Clarke, 21 Nev. 337.)
Under the provisions of that act every contractor is required to give security for the proper
performance of his contract. Attorneys may, from neglect or want of legal skill, fail to
properly prosecute or defend the suits for which they are employed, and the county suffer loss
thereby. Why the county should not be protected by proper security in such cases, as in all
other classes of contracts provided for by said act, and why it should not receive all the
benefits to be derived from the provisions of that act, and be protected from all the evils
that act attempts to guard against in the one class of contracts, as well as in all others,
we think cannot be shown with any degree of reason.
cases, as in all other classes of contracts provided for by said act, and why it should not
receive all the benefits to be derived from the provisions of that act, and be protected from all
the evils that act attempts to guard against in the one class of contracts, as well as in all
others, we think cannot be shown with any degree of reason. If not, it would seem to follow
that the legislature did not intend to make any distinction, in these respects, between the
classes of contracts the board might enter into for the county.
If we are in error in our conclusions it can be corrected by the legislature amending said
supplementary act or passing some other act. To do so it will not be necessary to use plainer,
broader and more comprehensive language than is used in the said act to express its intent, for
this perhaps could not be done, but in language in some degree ambiguous and uncertain,
when the real intent may be attempted to be arrived at by statutory construction. But, while
the language of the statute remains as it is, we see but one proper course to pursue, and that is
to adhere to rules set forth in the cases above cited, the language of which is as plain and
unambiguous as the language of the supplementary act itself.
The objection that the writ of certiorari will not lie in this case because the commissioners
in doing the act complained of were not exercising judicial functions, or that said act was not
of a judicial character, I think is not well taken. It is argued that entering into contracts by the
commissioners is not the exercise of judicial functions. But this court has heretofore decided
otherwise, and I see no valid reason why the rule should not be adhered to in this case.
In Sadler v. Eureka County, 15 Nev. 37, the district court on certiorari set aside an order
of the board by which it contracted with A. Boungard for widening and deepening the
foundation to the court house, then about to be built, at a cost not to exceed $500. On
appeal the judgment of the district court was affirmed. Under the supplementary act above
named it will be observed that when any contract amounts to $500 or more, it must be let to
the lowest responsible bidder. In the above-named case the contract was let to Boungard, and
not offered to be let under the provisions of said act of the legislature.
to Boungard, and not offered to be let under the provisions of said act of the legislature.
Hawley, J., in delivering the opinion of the court, said: It is apparent upon the face of said
order that the commissioners exceeded their jurisdiction in declaring that the cost of said
work should not exceed $500, instead of should not amount to $500. The judgment of the
district court could be sustained on this technical ground. Why? Because the commissioners
in entering into such contract were exercising judicial functions and exceeded their
jurisdiction in letting the contract otherwise than to the lowest responsible bidder. It is argued
that the letting of a contract by the board is an executive act and not the exercise of judicial
functions, or that such an act is not of a judicial character. But in the Sadler case, supra, the
court held to the contrary. It cannot be said with any degree of reason, that the question as to
the character of the board's act in that case was not considered or decided, and that, therefore,
the decision in that case is not in point. For this court has repeatedly held that certiorari will
not lie to review and set aside an act or proceeding of an inferior tribunal, board or officer,
unless the act complained of is of a judicial character, or the doing of the act was in the
exercise of judicial functions. This rule is so well settled by a concurrence of the authorities
that, in proceedings on certiorari, the first question that presents itself to the mind of the
reviewing court is: Is the act complained of an act done in the exercise of judicial functions,
or, in other words, is it of a judicial character? If it be considered that it is not, the court
issuing the writ or reviewing the matter complained of has no legal power to annul it. To hold
that this court did not pass upon the legal character of the act of the commissioners in the
Sadler case, supra, and did not determine that the commissioners in entering into the contract
were exercising judicial functions, it seems to me is imputing to the court gross dereliction of
duty in not passing upon that vital question in the case, and imputing to it a usurpation of
power, in setting aside the contract, more inexcusable than the power assumed by the Eureka
board in entering into the contract.
In Andrews v. Pratt, 44 Cal. 309, 318, the court holds that an order by the board of
supervisors of an allowance of a claim against the county stands as a judgment of a court
of competent jurisdiction.
an order by the board of supervisors of an allowance of a claim against the county stands as a
judgment of a court of competent jurisdiction. Then, certainly, allowing a claim against the
county is an act of a judicial character. I cannot see why entering into a contract to bind the
county to the payment of a certain claim is not of the same character. It is in effect and
practically the same thing.
Upon other and further grounds I am of opinion the proceedings of the board in question
should be set aside.
It seems to me that the county commissioners have no power to employ attorneys to
prosecute or defend any case at their mere discretion, but only when their judgment
pronounces, after an examination of the facts of the case, that there is a necessity for such
employment to protect the interests of the county; and that, in determining upon the necessity
of such employment, from the consideration of all the pertinent facts tending to enable them
to arrive at a conclusion, such as the nature and importance of the litigation, the amount
involved or the principles at stake, and the ability or lack of ability of the district attorney to
properly manage the litigation, etc., the commissioners exercise judicial functions; and that
the order entered employing attorneys is fatally defective in not stating the ground upon
which it is made. These legal propositions are fully sustained by the case of People v. The
Supervisors of Marin County, 10 Cal. 344, in the opinion of the supreme court delivered by
Field, J. In that case the board of supervisors passed an order requiring a constable to file
another bond, with two or more sureties, within fifteen days. This was done on the
assumption that the board had the power to do so as a mere matter of discretion, under the
provisions of a statute which empowered them to require new bonds of any county or
township officer with additional securities whenever they deemed the same necessary. The
court held that the exercise of the power to require new bonds was not left to the arbitrary
discretion of the supervisors, but that their action was to be governed by a consideration of
the form of the original bond and the responsibility of the obligors, and that in determining
upon the sufficiency of the bond they were exercising powers of a judicial character, and that
the order made was fatally defective in not stating the ground upon which it was based.
order made was fatally defective in not stating the ground upon which it was based.
Upon the grounds and authorities above cited, and the foregoing reasons, I cannot concur
in the decision in the case at bar, and therefore respectfully dissent.
____________
23 Nev. 262, 262 (1896) State v. Lincoln County Comm'rs
[No. 1468.]
STATE OF NEVADA, ex rel. SAMUEL DAVIS, Appellant, v. THE BOARD OF COUNTY
COMMISSIONERS OF LINCOLN COUNTY, Respondent.
Statute of LimitationsWhen Will Begin to Run.The act of February 17, 1873 (Stats. 1873, p. 54), sec. 8,
provided for the collection annually, until payment of certain county bonds, of a special tax to be applied to
payment of the interest on the bonds. The act of January 18, 1877 (Stats. 1877, p. 46), provided that if such
interest fund should be exhausted before all the interest was paid, the coupons could be presented to the
county treasurer, and a certificate of such presentation indorsed on them, after which they should be paid as
money came into the fund, in the order in which they had been presented: Held, that where coupons were
presented, and presentation indorsed thereon, the statute would not commence to run against an action to
compel levy and collection of the tax for payment till money came into the fund applicable to such
payment.
Appeal from the District Court of the State of Nevada, Lincoln county; G. F. Talbot,
District Judge:
Application of Samuel Davis for mandamus to the Board of County Commissioners of
Lincoln county. Application denied, and petitioner appeals. Reversed.
Petition for writ of mandate to compel the defendants to levy a tax for the payment of
interest upon the bonded indebtedness of Lincoln county, created by the act of February 17,
1873. (Stats. 1873, 54.) Section 8 of that act provides as follows: In addition to the ordinary
taxes for county purposes there shall be for the year 1873, and annually thereafter, until the
principal and interest of said bonds to be issued shall be fully provided for, as hereinafter
provided, to be levied and collected at the same time and in the same manner as other
revenues of said county, a special tax to be called the interest tax, of 45 cents on each $100 of
taxable property of said county, which tax shall be collected in United States gold and silver
coin, and paid over to the county treasurer.
lected in United States gold and silver coin, and paid over to the county treasurer. The fund
derived from this tax shall be applied only to the payment of the interest accruing upon said
bonds as herein provided. By a subsequent amendment (Stats. 1877, 46), it was further
provided that if the interest fund should be exhausted before all the interest was paid, the
coupons could be presented to the county treasurer and a certificate of such presentation
endorsed upon them, after which they were to be paid as money came into the fund, in the
order of their presentation. The interest coupons of the petitioner, upon which the proceeding
was founded, became due from 1880 to 1883, and were presented and the presentation
certified to in accordance with the above statute. The tax has not been levied since 1885. The
defense was the statute of limitations. The application for the writ was denied, and the
petitioner appeals.
Geo. S. Sawyer and Freeman & Bates, for Appellant:
I. The question as to whether the statute of limitations applied to these bonds and coupons
(bonds of Lincoln county) was expressly decided by the supreme court of the United States in
the case of Lincoln County v. Luning, 133 U.S. 532.
II. The trial judge admits the decision of the supreme court of the United States to be as
stated, but he seems to think the supreme court of the United States did not properly consider
that case, and that if it had been properly considered by them, they would have allowed the
plea of the statute of limitations, and he draws this conclusion from his construction of the
decision in the case of Freehill v. Chamberlain, 65 Cal. 603.
III. In this, and in subsequent cases, the supreme court of the state of California held that
the statute of limitations would begin to run as soon as the money was in the treasury of the
city of Sacramento applicable to the payment of coupons, but that a coupon holder had the
right to wait until the city levied and collected taxes, and that no duty was imposed upon him
to enforce their levy by writ of mandate. While the city of Sacramento could not be sued in a
direct action, any coupon holder had the same right by mandate to compel the levy of a tax at
any time after his coupons became due, as the holder of a Lincoln county coupon would
have to compel the levy of the tax in this case after his coupon became due.
became due, as the holder of a Lincoln county coupon would have to compel the levy of the
tax in this case after his coupon became due.
Robt. M. Beatty, Attorney-General, and T. J. Osborne, District Attorney, for Respondent:
I. A county warrant payable out of any money in the treasury appropriated for county
expenditures is a written acknowledgment of indebtedness, and, if not paid when presented,
may be sued on by the legal holder, although there is no money in the treasury. (15 Am. and
Eng. Ency. 1219, note 1, citing Clark v. Des Moines, 10 Iowa, 199; Bank v. Franklin Co., 65
Mo. 105; Terry v. Milwaukee, 15 Wis. 490; 10 Wis. 44, 76, 63; 24 Wis. 382; 19 Iowa, 450;
67 Iowa, 697; 11 Barb. 117; Lyall v. Saper Co., 6 McLean (U. S.) 446.)
II. But it can hardly be questioned that the right to sue accrued at maturity. The holders of
nearly all the Lincoln county bonds deemed it necessary or expedient to bring suit, and after a
contest they obtained judgments without the money being in the treasury to meet their
obligations. A civil action in the state can only be commenced within the period prescribed by
the statute after the cause of action shall have accrued. (Gen. Stats. 3629.)
III. It is a matter of regret that the cases of Luning and others against Lincoln county were
not more carefully considered in the circuit and supreme courts of the United States. They
both seem to have overlooked the fact that Sacramento could not be sued on its bonds, and
that no cause of action ran in favor of the holder. Judge Sabin said in his decision: I should
have little hesitancy in holding the coupons barred, did I not consider them, under the
authorities above cited (the cases in 17 and 65 Cal.), withdrawn from the operation of the
statute. The opinion of Justice Brewer, whose abilities as a jurist are of a high order,
followed in the same strain, and was based on the same authorities, and, paradoxical as it may
seem, the conclusion cannot be avoided that these courts held that the statute did not run
against certain coupons while suit could be brought, and gave judgment accordingly, because
the supreme court of California had decided that bonds did not outlaw while suit could not
be maintained on them.
suit could not be maintained on them. The distinction is a broad one, but apparently was
overlooked by inadvertence in the Luning decisions, which were based partly on Freehill v.
Chamberlain. These California cases are cited and affirmed in Sawyer v. Colgan, 36 Pac.
583, but the court there still bases its opinion on facts and reasons which do not exist here.
The bonds were to be paid when a surplus came into the treasury, and this contingency did
not happen until 1890. The court said: Prior to that time the petitioner never could have
maintained a mandate for the payment of his coupons, and, this being so, of course the statute
of limitations is no bar to the proceedings. * * * He could not sue the state because there
never was any act authorizing him to sue.
IV. If the time has expired for the institution of suit on these bonds, the right of
mandamus is barred beyond question, but there are further reasons for holding that this
proceeding is too late. The writ of mandate to enforce collection of a judgment against a
municipal corporation is in the nature of a legal equivalent to the statutory execution, and the
right to prosecute it for such purpose is limited to the same period of time within which
execution may be sued out on a judgment against an individual. (15 Am. & Eng. Ency. 1314;
U. S. v. Oswego Tp., 28 Fed. 55.)
V. The board of county commissioners has not levied or collected any tax for the payment
of these bonds or interest during the last eleven years, and though the petitioner did not have a
judgment, he was entitled to one, and without it he could have mandamused the board equally
as well from the time of their first failure to levy the tax, and there seems to be no good
reason why his right to the writ should not be barred in the same length of time it would have
been if he had held a judgment.
So long as the right of action upon the coupons upon which this application is founded is
not barred, the petitioner is entitled to the writ of mandate applied for. By the act of 1877 they
were to be paid as fast as the annual levy of 45 cents on each $100 of property in the county
would produce sufficient money therefor.
money therefor. How soon that would be would, of course, depend upon the amount of
property in the county, and the amount of coupons that might be presented under the act, and
the order of their presentation. They might be paid in one year and they might not all be paid
in twenty years. The creditor accepted this proposition when he presented his coupons and
had their presentation certified by the treasurer. This was in the nature of an agreement for an
extension of time for their payment. The creditor agreed to wait, no matter how long it might
take, for payment under that arrangement, and he has waited accordingly. As long as the tax
was being levied and collected there was no occasion for him to bring an action, and if he had
it seems very probable it could not have been maintained, had the proper defense been made.
But when the money was collected he would be entitled to it; then his cause of action would
be fully ripe, and if not prosecuted within the statutory period would doubtless be barred. If
not levied or collected, his remedy would be the one he is now pursuing to compel the
officers to do their duty in the premises.
This is in accordance with the view taken by the supreme court of the United States, upon
coupons in all respects identical with those involved here, in the case of Lincoln Co. v.
Luning, 133 U. S. 529. We quote from that decision as follows: The coupons, which by the
general limitation law would have been barred, were presented, as they fell due, to the
treasurer for payment, and payment demanded and refused, because the interest fund was
exhausted. Thereupon the treasurer registered them as presented, in accordance with the act of
1877, and from the time of their registration to the commencement of this suit there was no
money in the treasury applicable to their payment. This act, providing for registration and for
payment in a particular order, was a new provision for the payment of these bonds, which was
accepted by the creditor, and created a new right upon which he might rely. It provided, as it
were, a special trust fund, to which the coupon holder might, in the order of registration, look
for payment, and for payment through which he might safely wait. It amounted to a promise
on the part of the county to pay such coupons as were registered, as fast as money came
into the interest fund; and such promise was by the creditor accepted; and when payment
is provided for out of a particular fund, to be created by the act of the debtor, he cannot
plead the statute of limitations until he shows that that fund has been provided."
were registered, as fast as money came into the interest fund; and such promise was by the
creditor accepted; and when payment is provided for out of a particular fund, to be created by
the act of the debtor, he cannot plead the statute of limitations until he shows that that fund
has been provided.
That this has become the settled law applicable to such cases is further shown by the
decision of Sawyer v. Colgan, 102 Cal. 283, 292, where, in the course of its opinion, the court
remarked: It is a general rule that when payment is provided for out of a particular fund, or
in a particular way, the debtor cannot plead the statute of limitations without showing that the
particular fund has been provided, or the method pursued. See, also, 1 Wood, Lim., 2d ed.,
363; Underhill v. Sonora, 17 Cal. 172; Freehill v. Chamberlain, 65 Cal. 603.
Judgment reversed and cause remanded for further proceedings in accordance with this
opinion.
____________
23 Nev. 267, 267 (1896) Wilson v. Wilson
[No. 1467.]
DAVID WILSON, Respondent, v. WILLIAM WILSON,
Appellant.
EvidenceConflictImplied Findings.Where the evidence is conflicting and there is substantial testimony in
support of the contention of the prevailing party, in the absence of express findings, the law implies
findings in favor of the judgment.
JudgmentMistakePresumption of Findings.In an action to reform a deed for mutual mistake, the existence
of which is denied by defendant, it was the duty of the lower court to determine which contention was
correct; and, by giving judgment in favor of plaintiff, the presumption is that the issue was implicitly found
in his favor.
LachesStatute of LimitationsConfidential Relations.Failure of a grantee for seven years to bring suit for
the correction of a deed from which part of the land intended to be conveyed was, by mutual mistake,
omitted, does not show laches, where relations of mutual trust and confidence existed between the grantor
and grantee, and the grantee commenced suit as soon as he discovered the mistake.
RecordsNotice to Whom.The statute of this state concerning records (Gen. Stats. 2594) is not intended to
impart notice other than to subsequent purchasers and incumbrancers, and the record is not notice of
anything not contained in the deed.
Appeal from the District Court of the State of Nevada, Esmeralda county; C. E. Mack,
District Judge:
Action by David Wilson against William Wilson. From a judgment for plaintiff, and an
order denying a new trial, defendant appeals. Affirmed.
W. E. F. Deal, for Appellant:
I. It is well established that a court of equity will never decree the specific performance of
an agreement unless the plaintiff has no adequate remedy at law, and unless the agreement
which it is sought to enforce is clearly and positively proven, and unless the plaintiff has been
without fault on his part either in the first instance, or without laches thereafter, and unless
the mistake was mutual.
II. It is not claimed here that the mistake was a mutual one, and the reason given for the
acceptance of the deed as executed by plaintiff is that there existed between plaintiff and
defendant a confidence consistent with their fraternal relation, and that on account thereof and
of plaintiff's belief as to the competency of defendant to make and execute a proper deed
passing defendant's title to said property to plaintiff, plaintiff was induced thereby not to
examine and did not examine said deed to ascertain if it conformed to the agreement. This
excuse is totally insufficient; no fraud or misrepresentation of any kind on the part of
defendant is claimed.
III. Because a confidence existed between the parties consistent with their fraternal
relation, and because plaintiff believed defendant competent to draw a deed, is no excuse for
plaintiff's failure to examine it.
IV. The deed was dated November 28, 1876. It was acknowledged on March 20, 1877.
Whether the deed was delivered to plaintiff or not prior to the time it was recorded, he
certainly had constructive notice of its contents from the time of its record. In 1884 or 1885
plaintiff, according to his own testimony, had possession of the deed, and thus had additional
actual means of knowledge of its contents. This was ten years before the suit was brought.
The fact that it would take plaintiff some time to read the deed is no excuse for his failure
to do so.
would take plaintiff some time to read the deed is no excuse for his failure to do so. If it was
too much trouble for him to read it to himself, he could have others read it for him, as he did
in 1893. The circumstance that he all along supposed that the deed contained what he thought
it did does not justify or excuse his failure to ascertain the actual fact; nor does the confidence
which one man has in another, and which leads him to accept a document upon the
supposition that it contained what it ought to contain, justify him in remaining idle, and in
resting upon the supposition that it is as he supposed it was for sixteen or seventeen years
afterwards.
V. To reform a deed on the grounds of mistake, the evidence must be clear and
convincing, making out the case to the entire satisfaction of the court, and not loose,
equivocal or contradictory, leaving the mistake open to doubt. (Loomis v. Lazzarrovich, 55
Cal. 52; Pomeroy's Equity Jurisprudence, sec. 859, vol. 2, p. 325.)
VI. The law is well settled that, where the question of laches is in issue, plaintiff is
chargeable with such knowledge as he might have obtained upon inquiry, provided the facts
already known by him were such as to put upon a man of ordinary intelligence the duty of
inquiry. The duty of inquiry was all the more peremptory in this case, from the fact that the
property itself was of a uncertain character, and was liable, as in most mining property, to
suddenly develop an enormous increase of value. (Johnson v. Standard M. Co., 148 U. S.
360; Speidel v. Henrici, 120 U. S. 377.)
VII. In order to warrant a reformation of a deed for mistake, it must be a mistake common
to both parties, or through the mistake of the plaintiff, accompanied by the fraud, knowledge
and procurement of the defendant. (Pomeroy's Equity Jurisp., sec. 870; Ranney v. McMullen,
5 Abb. N. C. (N. Y.) 264; Lewis v. Lewis, 5 Or. 169; 26 Wend. 169; Stephens v. Murton, 6
Or. 193; Dimon v. Providence R. Co., 5 R. I. 130; Lamb v. Harris, 8 Ga. 546; Haddock v.
Williams, 10 Vt. 570.)
VIII. The statute of limitations provides that "an action for relief on the ground of fraud or
mistake shall be brought within three years after the discovery of the facts constituting the
fraud or mistake."
ing the fraud or mistake. The cause of action in this case accrued at the time of the execution
of this deed. As the testimony does not show that he did not have knowledge of all the facts at
that time, the respondent has been guilty of such laches in commencing this action that he
cannot now be heard to complain.
IX. The consequence of an actual discovery of a mistake will be imputed to a person who
might, by the exercise of reasonable diligence, have made the discovery. (Parker v. Kuhn, 21
Neb. 413; Penobscot v. Mayo, 67 Me. 470; Boyd v. Blankman, 29 Cal. 19; Gillet v. Wiley,
126 Ill. 310; Lane v. Lane, 87 Ga. 268; Kuhns v. Gates, 92 Ind. 70; Foster v. Mansfield, 146
U. S. 99; Wood v. Carpenter, 101 U. S. 135; Hardt v. Heidweyder, 152 U. S. 558.)
P. M. Bowler, Jr., for Respondent:
I. Plaintiff is not, in any case of a civil nature, required to prove his case beyond a
reasonable doubt. Satisfactory proof, proof which satisfies the mind, is sufficient. It is the
invariable rule that, where there is a conflict of evidence, the decision of the trial court will
not be disturbed.
II. Plaintiff was not guilty of laches; his claim is not stale. For the purpose of invoking the
statute of limitations, or the doctrine of laches or guilty knowledge, there must be a
concurrence of condition before one can be charged, to wit: (1) The means of knowledge
must exist. (2) The circumstances attending the transaction must be such as to excite the
inquiry of a man of ordinary prudence. Nothing short of the presence of those conditions will
constitute notice or knowledge. (Wade on Notice, secs. 10, 11, 13; Moore v. Boyd, 74 Dal.
171; Hecht v. Slaney, 72 Cal. 363; Latilatti v. Orena, 91 Cal. 577.)
III. The mistake alleged is the substantive cause of action; upon its occurrence the cause
of action arises, but the cause of action cannot be deemed to accrue until discovery of the
mistake. The statute will not be deemed to commence running until such time as a discovery
of the mistake is made. This in order that innocent parties may not suffer whilst in excusable
ignorance of their rights; hence our statute excepts them from the limitation prescribed until a
discovery of the mistake.
discovery of the mistake. (Gen. Stats. 3644; Lang Syne M. Co. v. Ross, 20 Nev. 204; Ward v.
Watterman, 85 Cal. 489.)
IV. The question in asserting a right may be materially affected by reference to the
relation which subsists between the parties, as, for instance, a transaction between brothers.
Considering their fraternal relation, the agreement of sale and purchase, the execution and
payment of the note, and there was nothing, even to the slightest circumstance attending the
whole transaction, to excite the inquiry of plaintiff to scrutinize the deed for the purpose of
determining if the instrument was in proper form and embraced the interest of defendant
agreed and intended to be conveyed, or to excite his inquiry to any extent whatever.
V. Counsel seem to rely upon the fact alleged, of the recordation of the deeds, as if the
record thereof constituted notice or knowledge of its contents. The evident intent and purpose
of the recordation acts, registry laws, is to furnish the best and most accessible evidence of
title to real estate, to the end that those desiring to purchase may be fully advised of
instruments of prior date affecting the subject of the contemplated purchase. The record of the
deed, which by this suit is sought to be reformed, could not and cannot be held to convey by
construction, or otherwise, any notice or information to plaintiff.
This is a suit for the purpose of correcting a mistake in a deed.
The evidence upon the part of plaintiff tended to show that in the month of November,
1876, defendant agreed to sell his entire interest in the Wilson mining district, in this state,
consisting of mines, milling property, water rights and wood lands, for the sum of $5,000.
Plaintiff agreed to purchase the same, and in the course of time a deed was executed by the
defendant. After the execution of the deed defendant declared in the presence of disinterested
persons that he had sold his entire interest in the district, and shortly thereafter left the locality
and remained away seven years or more. Upon his return he leased from the plaintiff a
portion of the property omitted in the deed of conveyance.
Afterwards others leased a portion of the same mining property omitted in the deed. A
controversy arose, resulting in a lawsuit between the lessees and defendant concerning the
ownership of ores extracted. It was then for the first time ascertained that defendant claimed
to be owner by location of the property. It was also discovered that the deed made no mention
of the omitted property. A few months thereafter the present suit was commenced.
It was also shown that the omitted property consisted of unpatented mining claims, which,
in default of the performance of annual work, were subject to location. Plaintiff has kept up
this work. The deed was in the handwriting of defendant. A memorandum containing a list of
the property of the defendant in the district, in which was included the omitted property, was
introduced. The evidence upon the part of defendant tended to contradict some of these facts.
A decree awarding plaintiff the relief prayed for was entered by the district court.
A motion for new trial was made and denied, and defendant has appealed. One of the
grounds of motion is insufficiency of the evidence to support the judgment.
The evidence was conflicting, but upon all material matters there was substantial
testimony in support of the contention of the prevailing party. No express findings were
made. In their absence the law implies findings in favor of the judgment.
Another point is that the mistake was not a mutual mistake. It must be conceded that a
mistake must be mutual to come in the cognizance of a court of equity.
In Botsford v. McLean, 45 Barb. 478, this question was considered. The court said: So far
as mistake constitutes the ground of jurisdiction in the courts of equity to give relief, it is, I
think, quite well settled that the contract will be reformed in all cases of clear mistake, or, as
some of the cases say, of mutual mistake. A little confusion and misconception, I think, has
crept into the cases from the inexact use of the word mutual,' as applied by way of
description or classification of the kind of mistakes which courts of equity would reform.
According to the real significance of the word 'mutual' in such connection, and the ordinary
acception and understanding of the term, mutual mistake would mean a mistake
reciprocal and common to both parties, when each alike labored under the same
misconception in respect to the terms of the written instrument.
mutual' in such connection, and the ordinary acception and understanding of the term,
mutual mistake would mean a mistake reciprocal and common to both parties, when each
alike labored under the same misconception in respect to the terms of the written instrument.
* * * When parties have entered into a written contract it must be presumed to express their
common intentions and to speak their actual agreement. But if it be clearly shown that such is
not the case, and that such written contract is untrue, and misrepresents or misstates their real
agreement and intentions as made and understood by both parties, in some essential
particular, then such contract is a mistaken one, and such mistake may be corected [corrected]
in a court of equity, in respect to such particular error.
In cases like the present, where one side claims that a mistake exists and the other denies
it, it was the duty of the court to determine which contention was correct, and, by giving
judgment in favor of plaintiff, the presumption is that the issue was implicitly found in his
favor.
Laches and the statute of limitations are interposed as a defense to the suit. The parties
were brothers. Their relations were of mutual trust and confidence. Plaintiff, up to the time
that he learned that the defendant had relocated the Midas mine and of the omission in the
deed, had implicit confidence in him. Nothing had occurred to interrupt these relations or
excite distrust or suspicion until this time, and the suit having been commenced shortly after
the discovery of the omission in the deed he is not chargeable with laches.
The deed was recorded March 20, 1877. It is said that the record was notice to the plaintiff
of its contents. It may be observed that the record is not notice of anything not contained in
the deed. We are satisfied, however, that the statute of this state concerning records (Gen.
Stats. 2594) is not intended to impart notice other than to subsequent purchasers and
mortgagees. (McCabe v. Grey, 20 Cal. 516.)
Judgment affirmed.
Bonnifield, J.: I concur.
____________
23 Nev. 274, 274 (1896) State v. Meyers
[No. 1474.]
STATE OF NEVADA, Respondent, v. GEORGE H.
MEYERS, Appellant.
TaxationBoard of EqualizationPersonal PropertyJurisdiction.Under Stats. 1893, p. 47, amending the
revenue law, and authorizing the board of equalization to equalize the assessed valuation of personal
property, it is not necessary that a complaint should be made to give the board jurisdiction of the subject.
IdemAssessment RollDuty of AssessorPresumption.Under the provisions of section 17 and 19 of the
amended revenue law (Stats. 1893, pp. 45, 46), it is the duty of the assessor, on or before the first Monday
of September of each year, to complete the assessment roll, which must contain a list of all the property in
the county, real and personal, subject to taxation. In the absence of a showing to the contrary, it will be
presumed that the assessor obeyed the law, in this respect, and that the property in question was properly
listed upon the assessment roll.
IdemAll Property to Be Equalized.Under section 23 of the revenue law, as amended (Stats. 1893, p. 47),
which provides that the board of equalization shall have power to determine the valuation of any property
assessed, the board has power and jurisdiction to equalize all property, without qualification or condition.
Idem-Uniform and Equal ValuationTrue Cash ValueInsufficient Showing.An agreed statement that the
assessor made a uniform and equal valuation of the kind, character, and species of merchandise to which
defendant's belonged, does not show that the valuation of defendant's property, as made by the assessor,
was uniform with other kinds of personal property on the assessment roll, or that it was not equalized by
the board at its true cash value, and is, therefore, insufficient to show that the raised valuation made by the
board was unjust.
District Judge:
Action by the State against George H. Meyers for the tax upon the difference between the
assessor's valuation and the valuation fixed by the board of equalization on defendant's stock
of merchandise. From a judgment in favor of plaintiff, and an order denying a new trial,
defendant appeals. Affirmed.
Torreyson & Summerfield, for Appellant:
I. The presumption is at all times that the assessor has performed his duty. He is required
to exercise his best judgment in determining the value of property to be assessed, and the
presumption is that official duty has been performed.
and the presumption is that official duty has been performed. (Ballerino v. Mason, 83 Cal.
449; 57 Cal. 614.)
II. The political code of California, sec. 3673, gives the board of supervisors, after giving
notice, power to increase or lower any assessment contained therein. But before this provision
of the code was adopted, the board of supervisors or equalization had no power to increase
the assessed value of property without a complaint either oral or written being made. These
cases have been followed by the supreme court of this state under a similar provision in our
revenue law. (Allison R. M. Co. v. Nevada County, 104 Cal. 161; People v. Reynolds, 28 Cal.
111; People v. Flint, 39 Cal. 670; People v. Goldtree, 44 Cal. 323; Duffy v. Moran, 12 Nev.
94; State v. Washoe County, 14 Nev. 142; State v. C. P. R. R. Co., 21 Nev. 176; Stats. 1893,
p. 47.)
III. The board of supervisors can equalize assessments, but they have no power to raise the
assessment of personal property beyond the amount returned by the assessor. (McConkey v.
Smith, 73 Ill. 314; Darling v. Given, 50 Ill. 428.)
IV. The board of equalization had no right or authority or power to raise or lower the
assessed value of appellant's personal property without a complaint being made to said board,
either oral or in writing. And, furthermore, it had no right to equalize any property except
such as by law they are authorized to equalize. It had no authority to equalize the personal
property of defendant, for the reason that, under the law, said personal property should not
have appeared upon the assessment roll when the same was before the board of equalization
as the law requires, and the same should not have appeared upon said assessment roll until the
same had been returned to the auditor. In other words, where a person does not own real
estate within the county, and the assessor collects his taxes upon the personal property, said
personal property should not, under the law, appear upon the assessment roll until after said
roll has been delivered to the auditor by the clerk of the board of equalization, and the auditor
then places upon the assessment roll all the personal property the taxes upon which have been
paid. The board of equalization has nothing to do with personal property where the amount
of the taxes has been paid by the individual.
the amount of the taxes has been paid by the individual. (Stats. 1891, 160.)
V. The assessor having made a uniform assessment upon this particular kind and character
of property within Ormsby county, Nevada, the board had no right to raise any particular
individual or individuals without raising every other individual who had or owned similar
kinds of property.
A. J. McGowan, District Attorney, and Robt. M. Beatty, Attorney-General, for Respondent:
I. Stats. 1893, p. 47, sec. 8, declare in positive terms that the county board of equalization
shall have power to determine the value of any property assessed, whether said valuation was
fixed by the assessor or owner thereof. If this is true, then appellant has no right to refuse to
pay the additional sum which resulted from the board's raising the valuation of his property.
Upon August 29, 1895, appellant, owning no real estate in Ormsby county, paid the taxes
assessed against him for personal property, amounting to the sum of $264 75. Afterwards the
board of equalization raised the assessed valuation of his stock of merchandise from $8,000
(upon which figure he had paid the tax) to $12,000. Judgment was entered against him in the
district court for the tax upon the difference between the assessor's valuation and the
valuation fixed by the board of equalization, and for costs, etc. From the judgment and an
order refusing a new trial defendant appeals.
The first objection interposed is that no complaint was made to the board touching the
assessment. The statute in this regard was amended at the session of 1893 (Stats. 1893, p. 47),
and, as amended, it is not necessary that a complaint should be made to give the board of
equalization jurisdiction of the subject.
2. It is objected that the board had no jurisdiction to equalize defendant's taxes, for the
reason that his property was not properly listed upon the assessment roll. This conclusion, it
is claimed, results from the construction of the provisions of section 6S of the revenue law,
by which the auditor is required to enter upon the assessment roll upon its receipt by him,
after the final adjournment of the board of equalization, all the original schedules of
personal property made by the assessor.
provisions of section 68 of the revenue law, by which the auditor is required to enter upon the
assessment roll upon its receipt by him, after the final adjournment of the board of
equalization, all the original schedules of personal property made by the assessor. Under the
provisions of sections 17 and 19 of the amended revenue law it is made the duty of the
assessor, on or before the first Monday in September of each year, to complete the assessment
roll, which must contain a list of all the property in the county subject to taxation, which list
shall be verified by his affidavit. This requirement of the statute is a sufficient answer, of
itself, to the contention, and we must assume, in the absence of a showing to the contrary, that
the assessor obeyed the law and that the property was properly listed upon the assessment
roll. But, aside from these provisions, other portions of the revenue law sustain the action of
the board. The official title of the board is the Board of Equalization. The received
construction of its duty is to equalize the taxes. It would seem unreasonable that a board thus
constituted would not have jurisdiction to equalize all property but such only as appears upon
the assessment roll. Section 23 of the law provides, among other things, that the board shall
have power to determine the valuation of any property assessed. These words, in the
connection with which they are used, include all property, and no qualification or condition
whatever is imposed. This was evidently the intention of the members of the legislature that
passed the bill. In the 66th section, touching personal property, it provides that the taxpayer
shall not be deprived of his right to have his assessment equalized, and if, upon equalization,
the value be reduced, the excess shall be refunded. In the present case the valuation was
raised and not reduced, but the word equalize, according to Webster, means to make
equal, to be like in amount or degree, as to equalize accounts, burdens, or taxes. By raising
the assessor's valuation, the board, in the exercise of its judgment, equalized the taxes of
defendant with those of the other taxpayers of the county.
3. In the agreed statement of facts it is stated that the assessor made a uniform and equal
valuation of this kind, character and species of merchandise.
character and species of merchandise. No mention is made of other kinds, character or species
of personal property. The statement is therefore insufficient to show that the raised valuation
made by the board was unjust. It does not show that the valuation of defendant's property, as
made by the assessor, was uniform with other personal property upon the assessment roll, and
further that it was not equalized by the board at its true cash value.
Judgment affirmed.
____________
23 Nev. 279, 279 (1896)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
OCTOBER TERM, 1896.
____________
23 Nev. 279, 279 (1896) Lutz v. Kinney
[No. 1476.]
MARTIN LUTZ, Appellant, v. WILLIAM KINNEY,
Sheriff of Ormsby County, Respondent.
Chattel MortgageAffidavit toNotice.In the absence of a statute requiring the affidavit annexed to a chattel
mortgage to be signed by the affiants, the mortgage is notice to and valid against third persons, though the
affidavit is not signed by the mortgagor or mortgagee.
IdemAffidavit Not SignedProper Certificate Sufficient.In the affidavit to the chattel mortgage in
question, the mortgagee wrote his name opposite the words State of Nevada, in the venue of the affidavit,
and underneath the name of the mortgagor as signed by him to the mortgage. The mortgagor did not sign
his name to the affidavit at all. The affidavit was certified to as being subscribed and sworn to before J. D.
Kersey, notary public: Held, that it was not necessary that the affidavit be signed, that the verification was
sufficient prima facie, and could only be overcome by evidence that the affidavit was not in fact sworn to.
District Judge:
Action by Martin Lutz against William Kinney, Sheriff of Ormsby county. Judgment for
defendant, and plaintiff appeals. Reversed.
23 Nev. 279, 280 (1896) Lutz v. Kinney
I. The subscription of Martin Lutz is not necessary in the affidavit of mortgagor and
mortgagee in the chattel mortgage in question. (3 Blackstone, 304, title, Affidavit;
Bouvier's, Kinney's, Burrill's and Tomlin's Law Dictionaries; Am. and Eng. Ency. Law, vol.
1, p. 909; Bates v. Robinson, 8 Iowa, 320; Hitsman v. Garrard, 1 Harr. 124; Ede v. Johnson,
15 Cal. 53; Am. and Eng. Ency. Law, 441; Cobbey, Chat. Mort., sec. 406; Martindale on
Conveyancing, 209; State v. Washoe County, 5 Nev. 320.)
II. If a signature is required, it makes no difference in what part of the affidavit it is
written. (6 S.W. 551.)
A. J. McGowan and C. A. Jones, for Respondent:
I. The mortgage is not sufficient under the law to bind creditors, and nowhere on its face
can a reasonable man find anything to show that Lutz ever saw the mortgage at all. His name
is nowhere attached to the affidavit.
II. The words Archer Baker and Martin Lutz were written by the person who drafted the
chattel mortgage, and not by the notary public at all. There is nothing to show upon the face
of the mortgage that Martin Lutz ever took the affidavit.
The defendant, as sheriff, and by virtue of an execution issued on a money judgment
recovered against Archer Baker, levied upon, seized and took from the possession of said
Baker a certain lot of his personal property on which Martin Lutz, the plaintiff herein, held a
chattel mortgage executed to him by said Archer Baker, said mortgage having been duly
recorded in the office of the county recorder. The defendant disregarded said mortgage and
complied with none of the provisions of the statute with reference to the seizure, under
attachment or execution, of mortgaged personal property; hence this suit by the plaintiff
against the defendant.
The question to be determined is as to the sufficiency of the affidavit annexed to the
mortgage. It is in part as follows: "State of Nevada, County of Ormsbyss: Archer Baker,
the mortgagor in the foregoing mortgage named, and Martin Lutz, the mortgagee in said
mortgage named, being duly sworn, each for himself, and not one for the other, doth
depose and say: * * *
23 Nev. 279, 281 (1896) Lutz v. Kinney
State of Nevada, County of Ormsbyss: Archer Baker, the mortgagor in the foregoing
mortgage named, and Martin Lutz, the mortgagee in said mortgage named, being duly sworn,
each for himself, and not one for the other, doth depose and say: * * *
Subscribed and sworn to before me this 18th day of March, 1896. J. D. Kersey, Notary
Public, Ormsby Co., Nevada. [Seal.]
The trial court found: (5) That Martin Lutz, the mortgagee in said mortgage named, while
it is evident that he intended to subscribe his name to the affidavit as required by the statute in
such case made and provided, in fact wrote his name opposite the words State of Nevada,' in
the venue of said affidavit, and underneath the name of the mortgagor as signed by him to the
mortgage, and that Martin Lutz did not subscribe his name to the affidavit, and therefore the
mortgage as executed was not a sufficient notice to bind creditors. (8) That defendant is
entitled to judgment dismissing this cause and for costs of suit expended by him. Judgment
was entered accordingly. The plaintiff appeals from the judgment and order of the court
denying his motion for new trial.
There is no statute or rule of court in this state requiring the affidavit annexed to a chattel
mortgage to be subscribed or signed by the affiants, and, in the absence thereof, we are of
opinion that it was not necessary for the affidavit in question to have been subscribed by
either the mortgagor or mortgagee to make the mortgage notice to or valid against third
parties.
Several legal definitions of an affidavit are given in the books, which, in the main, are
substantially the same. An affidavit is a voluntary, ex parte statement formally reduced to
writing and sworn to or affirmed before some officer authorized to take it. (1 Ency. of
Pleading and Practice, 309.)
The essential requisites are, apart from the title in some cases, that there shall be an oath
administered by an officer authorized by law to administer it, and that what the affiant states
under such oath shall be reduced to writing before such officer. The signing or subscribing of
the name of the affiant to the writing is not generally essential to its validity; it is not,
unless some statutory regulation requires it, as is sometimes the case.
23 Nev. 279, 282 (1896) Lutz v. Kinney
affiant to the writing is not generally essential to its validity; it is not, unless some statutory
regulation requires it, as is sometimes the case. It must be certified by the officer before
whom the oath was taken. * * * The certificate, usually called the jurat,' is essential, not as a
part of the affidavit, but as official evidence that the oath was taken before the proper officer.
The signature of an affiant can in no case add to or give force to what is sworn, and what is
sworn is made to appear authoritatively by the certificate of the officer. This seems to us to be
a reasonable view of the principal requisites of an affidavit, and, although there is some
contrariety of judicial decisions upon the subject, the weight of authority sustains it. (Alford
v. McCormac, 90 N. C. 151.)
An affidavit, as defined by Blackstone, is a voluntary oath before some judge or officer
of the court, to evince the truth of certain facts.' (3 Bl. Com. 304.) In practice it is said to be
an oath or affirmation reduced to writing, sworn or affirmed before some officer who has
authority to administer it.' (Bouv. Law Dic. 79, title, Affidavit.') It is not necessary that the
affiant should sign the affidavit. He must make it; that is, he must swear to the facts stated,
and they must be in writing. It is then his affidavit, and as evidence that it was sworn to by the
party, whose oath it purports to be, it must be certified by the officer before whom it was
taken; which certificate is commonly called the jurat,' and must be signed by such officer.
(Gill et al. v. Ward et al., 23 Ark. 16.)
An affidavit need not be signed by the affiant, unless such signature is required by some
statute or by a rule of court. (Hitsman v. Garrard, 1 Harr. (N.J.) 124; Norton v. Hague, 47
Minn. 405; Shelton v. Berry, 19 Tex. 154; Bloomingdale v. Chittenden, 75 Mich. 305.)
In reference to an affidavit attached to a chattel mortgage in Ede v. Johnson, 15 Cal. 53,
the court said: It is not necessary that the parties should sign the affidavit. This is too well
settled to require discussion. It sufficiently appears that the affidavit was taken by a
competent officer.
In the making of the statement of the mortgagee required on a chattel mortgage, the agent
of the corporation omitted to affix his name thereto. Underneath the statement was a
certificate by a notary public, duly signed and sealed, which in effect stated that the
statement was sworn to by the mortgagee before him: Held, that this verification is
sufficient prima facie and can only be overcome by evidence that the statement was not
in fact sworn to by a proper agent of the corporation.
23 Nev. 279, 283 (1896) Lutz v. Kinney
certificate by a notary public, duly signed and sealed, which in effect stated that the statement
was sworn to by the mortgagee before him: Held, that this verification is sufficient prima
facie and can only be overcome by evidence that the statement was not in fact sworn to by a
proper agent of the corporation. (Gambrinus Stock Co. v. Weber et al., 41 Ohio St. 689.)
In State of Nevada v. The Board of County Commissioners of Washoe County, 5 Nev. 320,
the court expressed the opinion that an affidavit need not necessarily be subscribed, and cited
15 Cal. 53, supra, and other cases in support thereof.
We are of opinion that the district court was mistaken in its conclusions of law and erred
in dismissing the action.
The judgment and order appealed from are, therefore, reversed.
____________
23 Nev. 283, 283 (1896) State v. Virginia & Truckee R. R. Co.
[No. 1473.]
THE STATE OF NEVADA, Respondent, v. THE VIRGINIA AND TRUCKEE RAILROAD
Defense to Suit For Delinquent TaxesEffect of Act of 1895.Prior to the amendment of section 52 of the
general revenue law (Stats. 1895, p. 35), the defense by a defendant, sued for delinquent taxes, that the
assessment is out of proportion to and above the actual cash value of the property assessed, could not have
been made.
TaxationValue of Railroad, How DeterminedNet Income, When Governs.The actual cost of a railroad is
prima facie its value; but if it appears that the actual cost was in excess of the necessary cost, the necessary
cost is its proper standard. If it further appears that the net income of the road does not amount to current
rates of interest on its necessary cost, and is not likely to do so, or if the business of the road is likely to be
destroyed or impaired, by competition or other cause, or, in short, if the utility of the road is not equal to its
cost, then its value is less than its cost, and must be determined by reference to its utility alone. (State v.
Central Pacific R. Co., 10 Nev. 47, affirmed.)
IdemMeaning of Term Cash Value as Applied to Railroads.Under Stats. 1891, pp. 137, 138, providing
that all property shall be assessed at its actual cash value, and that the term cash value means the amount
at which the property would be appraised if taken in payment of a just debt from a solvent debtor, the value
of a railroad for the purpose of taxation must be determined mainly by its net earnings, capitalized at the
current rate of interest, taking into consideration any immediate prospect of an increase or decrease in the
earning capacity or the road.
IdemAssessmentEvidence Insufficient to SupportNo Substantial Conflict Of.Evidence of an assessor,
who valued a railroad for taxation, that he took into consideration the business the road seemed to be
doing, certain mining developments which, at the time of the trial, proved to be worthless; the material in
the road and its condition; that he did not examine the reports of the road, filed in the office of the secretary
of state as required by law, nor make any inquiry as to the amount of its business, leaving both this and
prospective change in the value of business out of consideration, as well as the decrease in the earnings of
the road; that if he had known that the earnings had greatly decreased, it would not have made any
difference in his judgment of its value, etc., it appearing that he had no special knowledge of the value of a
railroad, is insufficient to create a substantial conflict in the evidence, where the undisputed facts show that,
according to the correct method of valuation, the assessment is too high.
IdemNet Earnings of RailroadExpense of Replacing Bridge Reduced.In estimating the net earnings of a
railroad as a basis for ascertaining the value of the road for the purpose of taxation, the cost of replacing a
bridge should be deducted as a part of the expense of that year.
EvidenceNo Substantial ConflictRule.The rule that a verdict on conflicting evidence will not be disturbed
relates only to a substantial conflict.
District Judge:
Action by the State against the Virginia and Truckee Railroad Company, et al., to recover
taxes assessed on the railroad for the year 1895. From a judgment for plaintiff, and an order
denying a new trial, defendants appeal. Reversed.
Action to recover taxes due for the year 1895, amounting to $5,369 10. The defendant
made the statement to the assessor, required by the statute, valuing its railroad in Washoe
county at $131,800. This the assessor refused to accept, but assessed it at the sum of
$254,325. Upon complaint by the defendant to the board of equalization of Washoe county,
this assessment was sustained. Upon the taxes becoming due the defendant tendered in full
payment thereof $3,173 86, which was refused by the tax collector. To the action the
defendant made answer that the actual cash value of its road in Washoe county was but
$131,800. The case was tried before a jury and a verdict rendered in favor of the state, finding
the value of the property to be the same as fixed by the assessor. From the judgment entered
upon this verdict, and an order refusing a new trial, the defendant appeals.
upon this verdict, and an order refusing a new trial, the defendant appeals.
I. The assessment made by the county assessor was an arbitrary one, made without any
knowledge or attempt on the part of the county assessor to obtain knowledge of the value of
the property in question. The county assessor testified that he was elected county assessor of
Washoe county in 1894. His term of office commenced in 1895, in January; he had been
deputy county assessor four years; he had been on the railroad frequently, and assessed it in
1895 at $9,500 per mile for the main track and $5,000 per mile for the side track; making the
sum of $254,325 for that portion of the railroad in Washoe county. He testified that to a
certain extent he took pains to ascertain the value of the road, and fixed the value of what the
property would bring if appraised and taken by a creditor from a solvent debtor for a just debt,
and that he assessed all the property in Washoe county for the actual cash value; that on
making the assessment he took into consideration the current rate of business the railroad was
doing; the prospects in the Pine Nut country, the developments that might be in the
Comstock, and the condition of the road. He further testified that he watched the business at
Reno, the travel over the road, and the improvements that had been made in 1894, and that he
concluded the road was not going down if they were making improvements; that the
improvements he had noticed were the steel bridge over the Truckee river, the repairs in
general, the ballasting, etc.; that he had an idea that the bridge cost from $10,000 to $14,000,
and that this idea had something to do in making up his judgment as to the value, and that the
cost of the bridge to some extent influenced him as to the value of the road. He made no
inquiries to ascertain what the business of the road was, nor did he examine the report of the
company of its receipts and expenditures. He could not say that if he had known that the net
earnings of the road amounted to $8,642 52 in the year 1894, that that would have had any
effect upon his judgment. If he had known what the gross receipts and gross expenditures
were for the year 1S94, he could not say that this would have any effect upon his
judgment.
year 1894, he could not say that this would have any effect upon his judgment. He did not
examine the company's report for the fiscal year 1893, and, if he had, it would have had no
influence upon his judgment, nor would it have made any difference in his judgment if he had
known that the net receipts of the company had fallen from $102,341 52 in 1893 to $8,642 52
in 1894. He further testified that he did not take into consideration any decrease in the
earnings, and that he did not go into the business of the company as shown by the reports at
all; that he made no inquiry of the officers of the company during any of the years he had
been assessor.
II. The whole testimony of this witness showed that he arbitrarily assessed this property,
without taking into consideration its receipts, its expenditures or its business, and without
making an inquiry to ascertain any elements of value of such property. He declared that he did
not take into consideration the depression in business in every place the appellant depended
upon for its business, and that he did not take into consideration the business of the company,
and that the prospects of the Pine Nut country and developments on the Comstock had proved
delusive.
III. The only other testimony on the part of the state as to the business of the company was
that of George E. Peckham, who testified that he noticed, while at work, the trains passing
over the road, and that there were a larger number of special trains in the last year or two than
formerly, but his observations were confined to the road near his place.
IV. The testimony on the part of the state adds nothing to the prima facie case made by
the introduction of the delinquent assessment roll.
V. The appellant's testimony amply sustained the correctness of the statement made to the
county assessor. It was shown that the cost of the railroad exceeded $3,000,000; that another
railroad, as good and as well adapted for the purpose, could have been built in 1895 for the
sum of $1,500,000, exclusive of the value of the right of way. It was shown that the current
rate of interest for the year 1895 was 8 per cent per annum. In the year here in question, 1895,
the net profits were $27,467 53, and from the 30th of January, 1895, to the time of the trial,
May, 1S96, the net profits were $16,962 17.
to the time of the trial, May, 1896, the net profits were $16,962 17. At the same rate for the
year ending the 30th of June, 1896, the net profits would have been about $20,000. So that
based upon the business of the road, the value of the road decreased after the fiscal year 1895.
The proof showed that the whole length of appellant's road was 77.89 miles, of which 51.75
was main track and 26.14 side track; that the portion of the road within the county of Washoe
constituted 29.20-77.89 of the whole road. Based upon the utility of the road (the earning
capacity) the whole road was not worth to exceed the sum of $344,120, and it had not been
worth to exceed that sum since June 30, 1893, and it was not likely to be worth more than
that. On the contrary, the evidence showed that, based upon its utility, the road would
decrease in value.
VI. To fix any such value as that placed by the assessor upon the road within Washoe
county, $254,325, the value of the whole road, based upon the net earnings of the company,
should amount to about $678,403, and the net income of the road should have been about
$54,272 24, nearly double what it actually was.
VII. The court has settled the law applicable to the assessment of railroads in this state for
the purpose of taxation. (State v. C. P. R. R. Co., 7 Nev. 781; State v. C. P. R. R. Co., 10 Nev.
47.)
VIII. The assessor must be governed by just rules when he values property for the purpose
of taxation. He must take into consideration the elements which constitute value. His
judgment, without any fact or reason to sustain it, cannot be allowed to stand when it is
affirmatively shown that his judgment was neither based upon the actual business of the road,
nor upon the prospective, nor upon its income, nor any other element of value. Upon his
showing the only thing that made him a competent witness was his official character; any
other witness would have been excluded from the stand upon such utter lack of knowledge as
was shown by the assessor.
IX. Applying these legal principles, in cases cited supra, 7 Nev. 781, 10 Nev. 47, which
are supported by sound reason in addition to their authority to this case, the court will see
that the assessment of which appellant complained was nearly double what it should
have been; there is no fact in the case that the finger can be laid upon to justify this
verdict, and it must be set aside.
that the assessment of which appellant complained was nearly double what it should have
been; there is no fact in the case that the finger can be laid upon to justify this verdict, and it
must be set aside. To allow it to stand against the overwhelming testimony would constitute
jury trials a farce, and would constitute county assessors absolute masters of every citizen's
property.
X. The contention of counsel for respondent that, upon the facts as established by the
evidence in the case, appellant would have had no remedy against the assessment as made by
the assessor prior to the act of 1895, cannot prevail. For every such injury, and for every such
deprivation of a right, there is, and always has been, a remedy under the constitution and laws
of Nevada. (Art. X, sec. 1, Const. Nev.; Stats. 1895, p. 169.)
XI. The words true cash value, just valuation, full cash value, actual cash value,
mean one and the same thing. If any of them mean that a citizen's property can be assessed for
more than it would sell for, then an unjust valuation could be made which would be contrary
to the constitution. It is very clear that the legislature, in giving the definition of the term full
cash value, intended to assist the assessor in making his assessment. In order to determine
what a given piece of property would be appraised at, if taken in payment of a just debt by a
solvent debtor, the elements that go to make its value must be ascertained.
XII. Whether dicta or not, the rule laid down in 10 Nev. 74, furnishes a just and, in fact,
the only, mode of ascertaining the value of railroads for the purposes of taxation, and is in
accordance with the laws of this state.
R. M. Beatty, Attorney-General, F. H. Norcross, District Attorney, and Torreyson &
Summerfield, for Respondent:
I. Under the various revenue acts of Nevada, previous to the year 1895, the action of the
board of equalization in reviewing the valuations of property by assessors, in the absence of
fraud, was final and conclusive.
II. The court will not weigh the evidence in this case and decide which party litigant in its
judgment adduced a preponderance of testimony. If there is a substantial conflict in the
testimony, this appellate court will not exclude the judgment of the jury and the trial
court by substituting its opinion therefor.
in the testimony, this appellate court will not exclude the judgment of the jury and the trial
court by substituting its opinion therefor. (Dennis v. Caughlin, 44 Pac. 818; Beck v.
Thompson, 36 Pac. 565; Pinschewer v. Hanks, 18 Nev. 103; Overman Co. v. Corcoran, 15
Nev. 151.)
III. There is substantial evidence to support the verdicts of the jury, and the trial court has
approved the verdicts by refusing a new trial. In such a case the appellate court will not
reverse the judgment on appeal. (St. Louis & S. F. Ry. Co. v. Brown, 45 Pac. 118; Ward v.
Christy, 38 N. E. 533; Davis v. Hilbourn, 59 N. W. 379; Jones v. Singer Mfg. Co., 18 S. E.
478.)
IV. It is entirely immaterial whether the assessment was arbitrary or considerate in its
determination by the assessor; whether the assessor was negligent or diligent in seeking
knowledge of the value of the property in dispute; and whether the assessor employed correct
or erroneous mental processes and principles in determining its value, provided that he did
not fix the valuation at more than the full cash value of the property. If a substantially correct
result is attained, the law is satisfied without analyzing the methods by which it was reached.
V. Appellant appears to rely in considerable confidence upon the opinion of this court in
the cases of State v. C. P. R. R. Co., 7 Nev. 99, and State v. C. P. R. R. Co., 10 Nev. 47. In the
first-mentioned case the court below had sustained demurrers to the original and to the
amended answer, each of which alleged a fraudulently excessive valuation of railroad
property. In the course of its decision the court expressed the language quoted by appellant. It
appears to be dicta, but at any rate it contains nothing to support appellant's theories or in
anywise militating against respondent's positions herein. There is no issue of fraud in this
case.
VI. The decision in 10 Nev. was rendered under the revenue laws of the state of Nevada
as they existed in 1870. At that time the statutes did not prescribe any subsidiary principles to
control or guide the valuation of property in general, or of railroad property in particular, for
the purpose of taxation. In the absence of any statute relating to the assessments of railroads
in particular, the court, by Justice Beatty, expressed the views quoted in appellant's brief.
expressed the views quoted in appellant's brief. That it is mere dicta is perfectly plain in view
of the fact that at that time the valuation of property, as equalized by the board of
equalization, in the absence of fraud upon the part of the assessor, or board of equalization,
was conclusive, and not a matter for review or determination by the courts. Having no
jurisdiction to determine the value of property for the purpose of taxation, it would seem clear
that the courts had no jurisdiction to decide methods to be employed in the determination of
values.
VII. Section 4 of the act of 1875, and section 3 of the act of 1893, expressly provide that
in ascertaining, assessing, and fixing the value of any railroad for taxation the assessor shall
assess it the same as other property. Either this provision is meaningless, or all non-exempt
property in Nevada should be valued by the same process of estimation, or the views
expressed in 10 Nev., as contended for by appellant, are not the law and are not applicable
under the present statutes.
VIII. Appellant claims the right to deduct all salaries, cost of operating, expenses, repairs,
taxes, and all expenses whatever, from the gross receipts in order to ascertain the net income,
and then to simply capitalize the net income at the current interest rate to fix the full cash
value of its railroad for taxation purposes. It is safe to assert that there is hardly a ranch, piece
of real estate, or stock of goods, wares and merchandise, which, valued under such a rule,
would have any value for taxation whatever.
IX. The evidence is amply sufficient to sustain the verdict of the jury. The annual report of
appellant, filed with the secretary of state under the requirements of the law, shows that the
net earnings of the Virginia and Truckee Railroad in the year 1895 was $33,467 53. Ignoring
the element of a prospective increase of net earnings, and applying the views contained in the
10 Nev. case with rigid exactness, and you reach a result as follows: $33,467 53 divided by
.08 equals $418, 344 13, as the value of the whole road. As assessed by the Washoe county
assessor at a valuation of $9,500 per mile of main track and $3,000 per mile of side track, we
have the following result, which includes the element of prospective value:
51.75X$9,500=$491,625; 26.14X$3,000=$7S,320, or $569,945 as the value of the road.
ment of prospective value: 51.75X$9,500=$491,625; 26.14X$3,000=$78,320, or $569,945 as
the value of the road. The difference between $418,344 and $569,945, which is $151,601,
therefore represents the prospective increase in value as determined from the evidence of the
assessor, the board of equalization, the jury and the trial court, and amounts to a little more
than one-third of the value insisted upon by appellant ignoring the element of prospective
value.
X. The evidence clearly established the fact that appellant's railroad had a prospective
value at the time it was assessed in 1895. In 1892, only three years before the assessment in
dispute, the net earnings were $202,225 68. Applying the same rule, its taxable value then
was $2,527,821, or $42,130 per mile. Taking the average net earnings for the ten years
immediately preceding the year 1895, and applying the same rule, the average value of the
road would be $3,167,250, or $52,787 per mile. The entire testimony showed that a large
proportion of the roadbed had been lately well ballasted, and that it, as well as the fences,
cattle guards, culverts, bridges, and other improvements, were in a good condition, and would
need very little repairing for several years.
XI. It being shown by appellant's annual report that, in 1895, its net earnings were
increasing at the rate of almost 400 per centum over those of the preceding year, and that fact
being fortified by the evidence above cited, and it being further a universally admitted fact as
well as principle of law that prospective values, when founded upon reasonable probabilities,
or even speculative probabilities, are and constitute one of the most important elements to be
considered in assessing property for the purpose of taxation, and especially and particularly in
the case of railroad property because of a sensitively fluctuating character, being likened by
appellant's leading expert witness, Mr. E. Black Ryan, to a thermometer, and registering the
most delicate variations in general business, it is submitted that the jury and the court were
amply justified in rendering their verdicts and in denying appellant a new trial.
XII. Appellant steadfastly maintains, in effect, that the valuation of its railroad in 1895,
for the purpose of taxation, should have been determined with reference to the earnings of
that year alone.
tion, should have been determined with reference to the earnings of that year alone. This is an
obviously erroneous principle. If such a principle should be sustained, it would amount to a
holding that, if such extensive repairs should have to be made all in one year as to absorb the
income of the railroad for that year, it would have no taxable value that year. And yet the
volume of business for that particular year might exceed that of any other, and the complete
repairs made during the year would increase the net earnings of the road for many years
thereafter by reason of the fact that few repairs would be required for the several ensuing
years.
By act of March 9, 1895 (Stats. 1895, 39), section 52 of the revenue law was amended so
as to permit a defendant sued for delinquent taxes to answer that the assessment is out of
proportion to and above the actual cash value of the property assessed. Prior to that
amendment this defense could not have been made. (State v. C. P. R. R. Co., 21 Nev. 172,
178.) The defendant answered under this amendment, but the jury found against it, and the
question presented upon the appeal is, what was the actual cash value of the defendant's road
in Washoe county?
The respondent first contends that the evidence as to value is conflicting, and that
consequently this court cannot interfere with the verdict. That is undoubtedly the general rule,
but for it to have this effect there must be a substantial conflict. It is not sufficient that there is
some evidence supporting the verdict, if it is so weak and inconclusive as not to raise a
substantial conflict with that produced against it. (Hayne, New Trial and Appeal, sec. 288;
Watt v. Nev. Cent. R. R. Co., 23 Nev. 155.) We think that is the case here. While there is
some evidence in support of the verdict, it is so weak and is so completely upset by the
undisputed facts that it does not raise a substantial conflict as to the true value of the road.
The constitution of Nevada, art. X, provides that all property, both real and personal, shall
be assessed and taxed at an equal and uniform rate, and shall receive a just valuation.
ation. By Stats. 1893, p. 110, sec. 4, it is provided: In ascertaining, assessing and fixing the
value of any railroad for taxation, the assessor shall assess it the same as other property, and
shall consider, treat and assess the portion thereof at its value within his county as an integral
part of a complete, continuous and operated line of railroad, and not as so much land covered
by the right of way merely, nor as so many miles of track consisting of iron rails, ties and
couplings. By Stats. 1891, 137, 138, it is directed that all property shall be assessed at its
actual cash value, and that the term full cash value' means the amount at which the property
would be appraised if taken in payment of a just debt due from a solvent debtor.
A railroad then, the same as every other class of property, is to be assessed at its true cash
valueat such an amount as it would be appraised if taken in payment of a just debt due from
a solvent debtorbut this does not necessarily mean that the same rules and principles are to
be applied to all the different kinds in determining what their true cash value is. The true
value of each class is to be determined by evidence applicable to that class. Wherever
property has a well-defined market value, which is usually the case with personal property,
with town and farm property, the market value is usually the best criterion of its value for
purposes of taxation. It is fair to presume that property to be taken in payment of a just debt
from a solvent debtor would be appraised at what it is reasonably worth in the marketat
what it would probably bring. So one rule is really the equivalent of the other.
But there are many other kinds of property to which this test would be entirely
inapplicable. It cannot be said, although sometimes bought and sold, that they have a market
value. Such, for instance, is a water ditch, a salt marsh, a borax field, or a mine of any kind. A
toll road is another instance. Take, for example, the famous Geiger grade, which must have
cost many thousands of dollars, and have been, at one time, a wonderfully productive piece of
property, but which now would probably not pay the wages of a toll-keeper. The market
cannot be appealed to to fix a value upon such property, but its value may be and must be
fixed by other obvious considerations.
fixed by other obvious considerations. A railroad comes within this class. Railroads are
bought and sold so seldom, and the value of each road depends so entirely upon its
surroundings, that in determining the amount at which such property would be appraised if
taken in payment of a debt, we must resort to other principles.
Railroads are usually constructed and operated for profit. They are not valued, as men
sometimes value a beautiful home, a horse or a diamond, for the pleasure that comes from
their ownership, but from the returns that can be obtained from them as a business
investment. Neither are they usually held for speculative purposes as much other
propertyparticularly unimproved lands, town and city propertyis so often held. The value
of a railroad is generally strictly prosaic and utilitarian.
To obtain any return from it, either present or prospective, a railroad must be operated. It
cannot lie idle and at the same time increase in value through the natural increase of
population and business. As it must be operated, expense must be constantly incurred, and the
result is that its true value as a railroad depends very largelyalmost entirelyupon what its
net income can be expected to be.
It is reasonable to suppose that the owners of a road will operate it to their own best
advantage; that they will obtain all the income possible, and keep the expense of operation as
low as possible. This should certainly be the presumption in the absence of a showing to the
contrary; and it follows, where a road has been operated for a number of years, that what it
has done in the past is a very good criterion of what it may be expected to do, under the same
conditions, in the future.
Then, after ascertaining this net return, it is necessary to take into consideration the
surrounding conditions, which also cut some figure in the problem, such as the condition of
the road, in order to determine whether the expense of keeping it in repair will be greater or
less than in the past, and the condition of the country tributary to the road, in order to form a
judgment of whether its business is likely to increase or decrease or remain stationary. In fact,
the true cash value of the propertyits value for taxationshould be determined by the
same matters that would be considered by one who wished to purchase and who was
simply endeavoring to ascertain what the road was worth.
be determined by the same matters that would be considered by one who wished to purchase
and who was simply endeavoring to ascertain what the road was worth.
In the case of State v. C. P. R. R. Co., 10 Nev. 47, this whole matter was very thoroughly
considered by as able a bench as it has ever been the good fortune of this state to have. From
the opinion by Beatty, J., we make the following short extract: To determine the value of a
railroad, then, the very first inquiry is as to its actual cost. That, prima facie, is its value. But
if it appears that the actual cost was in excess of the necessary cost, the necessary cost is its
proper standard. If it further appears that the net income of the road does not amount to
current rates of interest on its necessary cost, and is not likely to do so, or if the business of
the road is likely to be destroyed or impaired by competition or other cause, or, in short, if the
utility of the road is not equal to its cost, then its value is less than its cost, and must be
determined by reference to its utility alone.
It is claimed, however, that what was said in that case as to the correct rule for fixing the
valuation of a railroad was dictum.
We do not so regard it, as the defense in that case was that the road had been fraudulently
over-valued. In considering this defense the first point to be determined was whether there
had been any over-valuation at all. Upon its theory of how a road should be valued, the
defendant had established that there had, and this brought the question of what was a correct
theory squarely before the court. But no matter. Whether what was there said was necessary
to the decision of that case or not, we regard it as a substantially correct statement of the law,
and we find it supported by many other cases.
Thus, in People v. Keator, 67 How. Pr. 278, the court held as follows: In complying with
this provision of the law, as a railroad property cannot as a dwelling have any fancy value by
reason of its location or the expenditure thereon of large sums of money which would
conduce to the comfort of the owner, it is evident that the assessors, in fixing its value, must
be very largely controlled by its ability to earn money, and the productiveness of its use for
the purposes of a railroad.
and the productiveness of its use for the purposes of a railroad. As an original question it
would seem to be reasonably clear that the value of a railroad property must almost entirely
depend upon its capacity to earn money for its owners, and that therefore no creditor would
receive from a solvent debtor in payment of his debt railroad property at a greater price than
that which would be a fair one based upon its earning capacity. In People v. Weaver, 67
How. 479, a case involving the value of a bridge, the same court said: In determining the
value of the property of the relator in the mode which the statute directs, it is an evidently
sound proposition that the true criterion of such value must be its earning capacity.
In People v. Hicks, 40 Hun, 601, we find the following, which we adopt as a very careful
statement of the law: The estimate of value of any portion of the road cannot be intelligently
made without some knowledge or information of it as a whole, and its business, earnings and
ordinary expenses. Railroads are constructed with a view mainly to revenue and profit upon
investments. And hence the productive capacity and its earnings are matters for consideration
in the estimate of their value. And the extent to which actual net earnings of a road should
govern or aid such estimate is dependent upon circumstances. No arbitrary method can be
prescribed of ascertaining value. In some cases the earnings of a road may be entitled to much
more consideration than in others. The cost of the road is also usually to be taken into
account, and the value depends much upon relations present, and in reasonable
contemplation, because the value of property may considerably be dependent upon defined
unappropriated means and facilities for increased business connections and relations and the
importance of the consequences to follow. To the same effect are Trustees Cincinnati South.
Railway v. Guenther, 19 Fed. 395; People v. Pond, 6 Abb. New Cases, 1. See, also, People v.
Fredericks, 48 Barb. 173; State v. C. P. R. R. Co., 7 Nev. 99.
Perhaps, to avoid a misunderstanding of our decision, it should be stated in this connection
that the value of a portion of a road is not necessarily a fractional part of the whole. Owing to
local considerations, it may be greater or less.
less. But we find nothing in the evidence in this case indicating any difference, and it is only
mentioned to avoid a misconstruction of the opinion.
Without contradiction, the evidence in this case shows the following facts: That the cost of
construction of the road was $3,780,452 96; but that it could now be replaced, exclusive of
the right of way, for $1,500,000. That for the year ending June 30, 1894, the net earnings
were $8,642 52; for the year ending June 30, 1895, $27,449 53; and for the year ending June
30, 1896, of which the last three months were estimated upon the basis of the receipts for the
preceding nine months, $21,077 71, from which should be deducted, at least, $6,898 23, the
amount the defendant admitted to be due Storey and Washoe counties for taxes for the year
1895, and possibly more, depending upon the result of this, and a similar action in Storey
county, leaving net for that year $14,179 50, or less. It is not claimed that these figures are
incorrect, nor that the gross receipts of any year might have been increased by proper
management, or the amount of expense decreased.
It was also shown, without contradiction, that the current rate of interest in Washoe county
was 8 per cent per annum. Whether a broader view should not have been taken upon this
point, and the rate of interest fixed at a lower figure, we have no data upon which to form a
conclusion. There was no evidence that it was too high, and, for the purpose of this appeal, it
must consequently be accepted as correct.
It was also shown, again without contradiction, that there is no prospect in the near future
that the business of the road will increase. In fact, it seems quite probable that, if anything, for
some time to come, the receipts must decrease. In this connection it is argued that the jury had
a right to exercise their own judgment in determining whether there was a probability of
future improvement; that they could take judicial notice of the condition of the country, and
determine as well as an expert whether business was likely to increase, and that having done
so, their judgment cannot be revised by this court. Admitting, without deciding, that they
could take such notice of surrounding conditions, then this court has the same right and the
same knowledge that the jury had, and the same as a finding upon any other point, there
must be something substantial upon which to base it.
the jury had, and the same as a finding upon any other point, there must be something
substantial upon which to base it. If the jury can take judicial notice of a thing, it must be of
something that exists, not of something that does not, and there can be no question that there
is nothing now except pure speculation upon which to base such a belief. There are no
improvements contemplated and in process of construction, and no new mining camps
discovered and developed to such an extent in the region of country tributary to the
defendant's road as make it reasonably certain that they will add materially to the income of
the road in the near future. To affect the present value of the road such prospective
improvement must be more than a possibility. It must be so near and so certain that a business
man purchasing the road would take it into consideration. (People v. Weaver, 67 How. Pr.
477.) It is present, and not prospective, value that is in question. (People v. Roberts, 38 N. Y.
Supp. 724.)
It is very probable that in time new mining discoveries will be made, or present ones
further developed, and new enterprises opened up that will bring in an increased population
and add to the business of this road, and we certainly believe that such will be the case, and
when this happens it will add to its value, but this possibility does not, as a business
proposition, add materially to its present value.
From the foregoing data, which certainly, in the main, cover the elements to be taken into
consideration in determining the value of this road, there can be no question that the portion
of the road in Washoe county is not of the true cash value of $254,321, as fixed by the
verdict.
It does not seem reasonable that the value of a road should be fixed in view of the net
receipts for any one year, which, owing to abnormal conditions, may be greater or less than
the average, but we are not called upon to consider that point here. We should certainly not go
back beyond the railroad fiscal year 1893-4, because the evidence shows that the conditions
which produced a net profit the year before of $102,341 52 no longer exist, and if we should
put the years 1893-4, 1894-5, and 1895-6 together, the average would not be less than the
receipts of 1S94-5.
not be less than the receipts of 1894-5. So considering that year alone, the net receipts were
$27,449 53. That sum capitalized at 8 per cent represents $343,119 12, as the value of the
entire road, not taking into account the rolling stock and other personal property, consisting of
51.75 miles of main track and 26.14 miles of side track, of which amounts there are 25.65
miles of main track and 3.55 miles of side track in Washoe county. Several different ways of
figuring Washoe county's proportion of the entire valuation may be adopteddepending
upon the view taken of the side trackbut under none of them can it amount to near the sum
of $254,321, as fixed by the verdict.
In making the above estimate, and in basing it entirely upon the earning capacity of the
road, we do not wish to be understood, as we have stated before, as holding that there may
not be other considerations, which in some cases would cut quite a material figure. We
simply hold that the earning capacity is the main consideration, and that as shown in the
evidence in this case, as reported to us, we discover no others of sufficient importance to
affect the result.
The only evidence tending to support the verdict is that of the assessor. He testified that in
his judgment the road in Washoe county was worth what it was assessed for. It appeared,
however, that he had no special knowledge of the value of a railroad, nor was he any better
qualified to testify to the value of one than almost any other man in the community. He stated
that in making the assessment he had taken into consideration the business the road seemed to
be doing, certain mining developments which, at the time of the trial, had turned out to be
worthless, the material in the road and its condition; that he did not examine the reports of the
road, nor did he make any inquiry to ascertain what business it was or had been doing; that he
did not take into consideration any decrease in the earnings of the road, and that if he had
known they had greatly decreased, it would not have made any difference in his judgment of
its value; that in making up his judgment he did not take into consideration what the business
had been nor what it might be in the future.
In making the assessment he seems to have looked the property over, and to have come
to the general conclusion it was worth the value he placed upon it.
property over, and to have come to the general conclusion it was worth the value he placed
upon it. This would be all right so far as the assessment was concerned, if he hit it right,
because the law does not require the assessor to act upon any particular kind of evidence; but
when it comes to testifying as an expert, he must be able to give some reason for his
conclusions, or they are not entitled to much weight. Certainly he was able to give none here,
and we cannot consent to the claim that such evidence creates a substantial conflict with the
undisputed facts shown by the defendant.
There is also a question as to whether a part of the cost of a steel bridge across the Truckee
river, erected in the year 1894, should be deducted as a part of the expense of that year. As we
understand the facts relating to that matter, they are as follows: The old wooden bridge had
become decayed to such an extent that it was necessary to replace it with a new one. The cost
of a new wooden bridge would be $6,018; of a new steel bridge $7,812 79. The company
concluded to put in a steel bridge, and it now claims that what it would have cost to build a
wooden bridge should be deducted as a part of the annual expense of keeping up the road, and
that only the difference between the cost of the two should be charged to construction
account. We see no reason why this is not correct. Replacing a worn-out bridge would seem
to be as much an expense of keeping a road in repair as would replacing old ties, old rails or
old culverts, and in our statement of the net earnings of the road we have accordingly
deducted it. As this expense will not have to be incurred again, it is fair to suppose that the
future net earnings will be increased by that fact.
Judgment and order reversed, and cause remanded for a new trial.
____________
23 Nev. 301, 301 (1896) State v. Gray
[No. 1480.]
STATE OF NEVADA, Respondent, v. AUSTIN GRAY,
Appellant.
Criminal LawBurglarySufficiency of Evidence.In a case in which defendant was charged with burglary,
committed June 4th, by entering a barn in the night-time and stealing therefrom a saddle, a verdict of guilty
was not supported by evidence as to the time the saddle was taken, the evidence showing that it was last
seen in the barn at 6 o'clock in the evening and was discovered to be gone at 7 o'clock the next morning,
under a statute defining the night-time as the period between sunset and sunrise.
IdemTime, Essential Element of the Offense.Time is an essential element of the crime of burglary, and the
evidence, in order to support a conviction of that offense, must be of sufficient weight to convince an
impartial jury, beyond a reasonable doubt, that the defendant not only committed the larceny, but that it
was committed during the period between sunset and sunrise.
IdemLarcenyPossession of Stolen Property.The possession of stolen property alone is not sufficient to
justify a conviction for the larceny of that property.
Appeal from the Second Judicial District Court, Washoe county; A. E. Cheney, District
Judge:
Austin Gray and Frank McIntire were convicted of burglary, and Gray appeals. Reversed.
Curler & Curler, for Appellant:
I. The mere fact of the possession of stolen property is not sufficient to authorize a
conviction. (State v. Jones and Bryan, 19 Nev. 366; State v. Ah En, 10 Nev. 277; State v.
Clifford, 14 Nev. 72.)
II. The breaking or entering the stable, so far as the evidence discloses, might have been at
any time within a period of three hours and forty-nine minutes, viz: from 6 o'clock to eighteen
minutes past 7 p.m. on June 4, or from thirty-nine minutes past 4 to 7 o'clock p.m. on June 5,
1896, and not have been in the night-time, and therefore not have been burglary, and there is
no evidence to show that the stable was entered in the night-time.
III. Burglary, and breaking and entering a house in the daytime, are two separate and
distinct offenses, and they cannot be made to constitute one and the same offense. (People v.
Taggart, 43 Cal. 81.)
23 Nev. 301, 302 (1896) State v. Gray
Robt. M. Beatty, Attorney-General, and Frank H. Norcross, District Attorney, for
Respondent.
The defendant was convicted, with one McIntire, of the crime of burglary, alleged to have
been committed June 4, 1896, by entering a barn, in the night-time, in the town of Reno, and
stealing therefrom a saddle. One ground of the appeal is that the evidence is insufficient to
justify the verdict. In our opinion, this point is well taken. Burglary is the entering of a
building in the night-time, with or without force, for the purpose of committing certain crimes
therein. Night-time is defined by the statute as the period between sunset and sunrise. One
of the essential elements of the crime of burglary is that the felonious entry must have been in
the night-time, as above defined. The evidence showed that the saddle in question was in the
owner's barn before 6 o'clock in the evening, and that at 7 o'clock in the morning it was gone.
The door of the barn was left open during the night. That one Miss Moe lived in the same
block in which the barn was situated, but the defendants lived in another part of the town.
That early on the morning of June 5th, but how early does not appear, these three people left
the town, starting from Miss Moe's house. The next day the officers overtook them on a road
running from a place called the Cedars, about twelve miles from Reno, to the town of Reno,
traveling towards Reno, and found this saddle in the possession of the defendant Gray. When
asked where he got it, he said it belonged to McIntire; that the day before McIntire had traded
a little bay mare for it. McIntire spoke up and said that the day before a Spaniard whom he
did not know had met them near the Cedars and bantered them for a trade, and he had traded
his mare for the Spaniard's horse and saddlethat being the saddle in question.
Upon the part of the defense it was shown that, in company with Miss Moe, they left town,
as has been stated, somewhere about 6 o'clock in the morning for the Cedars, where they were
going for several purposes; that during the day McIntire traded for the saddle, as they told the
officers. They staid at a cabin at the Cedars over night, and started for Reno the next
morning, Gray having changed saddles with McIntire for the purpose of trying the new
saddle.
23 Nev. 301, 303 (1896) State v. Gray
for Reno the next morning, Gray having changed saddles with McIntire for the purpose of
trying the new saddle.
It is a well-settled rule of law that the possession of stolen property alone is not sufficient
to justify a conviction for the larceny of that property. (State v. Jones and Bryan, 19 Nev.
366; State v. Ah En, 10 Nev. 277.) Personal property passes so easily from hand to hand, that
it was found that reliance upon such evidence alone was too liable to result in the conviction
of innocent men for it to be depended upon. Generally, however, this evidence does not stand
alone. There are other circumstances usually surrounding the case having more or less
tendency to connect the possessor with the theft, if he be guilty, and where such evidence is
given, it is generally held sufficient to support the verdict. Whether such circumstances exist
here or not, we need not determine. The defendant was convicted of burglary, and, admitting
that the evidence was sufficient to support the conclusion that the defendants entered the barn
and stole the saddle therefrom, there was absolutely nothing to prove that it was done in the
night-time, and nothing from which that fact could be inferred. We may suspicion quite
strongly that it was, but suspicions, however strong, are not sufficient to convict men of
crimes. There must be evidence of every essential element of the crime, and it must be of
sufficient weight to convince an impartial jury beyond reasonable doubt.
It is evidence of the crime itself that is missing here. It is impossible to say that a burglary
was committed by anybody, and, as already stated, if we were to admit it was proven that the
defendants took the saddle, it is quite as possible that they took it after arriving at Miss Moe's
house, after sunrise, as before. We know that in June 6 o'clock in the evening is some time
before sundown, and 7 o'clock in the morning several hours after sunrise, and there is nothing
to show it was not taken during either period, instead of between them.
In State v. Watkins, 11 Nev. 30, it was shown that certain articles, which were in a room at
9 o'clock at night, were missing in the morning; that it was impossible for anyone to have
taken them without entering the room, and they were found in defendant's possession between
12 and 1 o'clock that night.
23 Nev. 301, 304 (1896) State v. Gray
o'clock that night. To the objection that the evidence did not establish the burglary, the court
said: It was necessary to show that the entry was effected in the night-time, and proof that
defendant had in his possession, outside of the house, between 12 and 1 o'clock, goods which
were in the house at 9 o'clock, and which could only have been obtained by entering the
house, was proof of an entry in the night-time, and, taken in connection with the other proof,
completely established the corpus delicti. That case illustrates what would be sufficient
proof upon this point, and, by contrast, tends to show the weakness of the evidence in this
case.
Judgment reversed and cause remanded.
____________
23 Nev. 304, 304 (1896) State v. Zichfeld
[No. 1479.]
STATE OF NEVADA, Respondent, v. C. H. ZICHFELD,
Appellant.
MarriageAt Common LawBy ContractStatutory Provisions, Directory.An act entitled An act relating
to marriage and divorce (Gen. Stats. 471, et seq.) provides that marriage is a civil contract, to which the
consent of parties, capable in law of contracting, is essential. The act contains provisions requiring a
license, directing how and by whom marriages may be celebrated, or by whom persons may be joined in
marriage, and prescribing other regulations in reference thereto, but contains no express clause of nullity,
making void marriages contracted by mutual consent per verba de praesenti, except a prior license is
obtained, or solemnization had, in accordance with its provisions: Held, that such provisions are formal and
directory, and do not render void a common-law marriage by contract per verba de praesenti.
Criminal LawBigamyCommon-Law Marriage.Defendant was married in 1893 to S. by written contract,
without the services of any of the persons authorized by the statutes to join persons in marriage.
Subsequently the parties separated by mutual consent, and thereafter the defendant, while he was so
married and knowing that the said S. was still alive, was formally married to L. by a justice of the peace of
Washoe county, this state: Held, that the marriage to S. was a valid marriage and that the subsequent
marriage to L. constituted bigamy in defendant.
IdemIntent, When Element of Crime.Where a specific intent is required by statute to constitute the crime,
such specific intent enters into the nature of the act itself, and must be alleged and proved beyond a
reasonable doubt.
IdemWhen Intent Not Element of Crime.When the statute forbids the doing of a certain thing, and is silent
concerning the intent with which it is done, a person who does the forbidden act is not guiltless because he
has no wrongful intent beyond that which is involved in the doing of the prohibited act. (State v. Gardner,
5 Nev. 377, overruled.)
IdemBigamyCriminal IntentEvidence.Section 127 of An act concerning crimes and punishments
(Gen. Stats. 4673) provides that bigamy consists in having two wives or two husbands at the same time,
knowing that the former husband or wife is still alive, and that nothing contained in the section shall extend
to any person or persons whose husband or wife shall have been continually absent from such person or
persons for five years prior to the second marriage, and he or she not knowing such husband or wife to be
living within that time, or to any lawfully divorced person, or to any person where the former marriage has
been by lawful authority declared void: Held, that, in a prosecution for bigamy, evidence was not
admissible to show that defendant, by his second marriage, had no criminal intent, he believing that the first
marriage had been annulled by agreement between him and his wife.
District Judge:
C. H. Zichfeld was convicted of bigamy, and appeals. Affirmed.
Curler & Curler, for Appellant:
I. Under our law no person, other than a minister of any religious society or congregation
within this state who has obtained a license for that purpose, or any judge of the district court
in his district, or justice of the peace in his county, is authorized to join persons together as
husband and wife. (Gen. Stats. 473, 481, 486.)
II. That the legislature of the state of Nevada did not intend to recognize what is known as
common-law marriages is manifested by the provision of the act relating to marriage and
divorce. Section 5 of said act (Gen. Stats. 474) provides that previous to persons being joined
in marriage a license shall be obtained for that purpose from the county clerk of the county
where the persons, or one of them intending to be married, reside; and further provides that
the clerk shall not issue a license to persons under age, without the consent of the parent or
guardian personally given before the clerk or certified to under the hand of said parent or
guardian, attested by two witnesses.
III. In the case at bar the defendant and Sophia Koser did not procure any license previous
to making the contract testified to by Mr. Julien, neither did the parties declare in the
presence of a judge, minister or magistrate and attending witnesses that they took each
other as husband and wife.
the presence of a judge, minister or magistrate and attending witnesses that they took each
other as husband and wife. These are formalities which defendant claims to be absolutely
necessary to constitute a valid marriage in the state of Nevada, (Gen. Stats. 474-476.)
IV. The provision of the statute, making the exception that all marriages shall be deemed
to be valid, although the ceremony is performed by a person not authorized to perform it, and
prescribing how marriages shall be solemnized, precludes the contracting of the relationship
in any other manner than as provided, the legislature, having made a provision specially
legalizing marriages in certain excepted cases, must be held to have contemplated all others
not entered into according to the manner provided for by statute, and not within the
exception, as void. (Gen. Stats. 482-486; Beverlin v. Beverlin, 29 W. Va. 732; Com. v.
Munson, 127 Mass. 466; Norcross v. Norcross, 29 N. E. Rep. 506; Dunbarten v. Franklin, 19
N. H. 257; In re McLaughlin's Estate, 30 Pac. Rep. 651; Follansbee v. Wilbur, 44 Pac. Rep.
262; Stans v. Bailey, 37 Pac. Rep. 316.)
V. The records of the case further disclose that upon the trial of the case the court
excluded a contract offered to be introduced in evidence by the defendant purporting to sever
all of the marital relations existing between defendant and Sophia Koser, which contract was
drawn by T. V. Julien, the party who drew the first contract prior to the marriage of the
defendant to Lauretta Bosford. The defendant contends that the court erred in refusing to
permit the introduction of that contract, for the reason that it was admissible for the purpose
of showing that there was no intent on the part of defendant to commit a crime.
F. H. Norcross, District Attorney, for Respondent:
I. The marriage by contract of the defendant C. H. Zichfeld and Sophia Koser, made in
May, 1893, and described in the evidence, was a valid and binding marriage. (Meister v.
Moore, 96 U. S. 76-83; Hutchens v. Kimmell, 31 Mich. 126; Am. & Eng. Ency., vol. 14, 514;
Graham v. Bennet, 2 Cal. 503; Sharon v. Sharon, 75 Cal. 1-25; Post v. Post, 70 Ill. 484;
Cartwright v. McGown, 121 Ill. 388; Blanchard v. Lambert, 43 Ia.
Ia. 228; State v. Worthington, 23 Minn. 528; Dyer v. Brannock, 66 Mo. 391; Tenton v. Reed,
4 Johns. (N. Y.) 52; Rose v. Clark, 8 Paige (N. Y.) 573; Carmichael v. State, 12 Ohio St. 553;
Mathews v. Phoenix, 23 Am. L. R. 401; Bishop on Marriage and Divorce, 5th ed., sec. 283,
218, 227, 229; Hayes v. People, 25 N. Y. 390.)
II. To support an indictment for bigamy, it is a sufficient marriage in fact that the parties
agree to be husband and wife and cohabit and recognize each other as such. (Hayes v. People,
25 N. Y. 390; Com. v. Mash, 7 Met. (Mass.) 472; Bishop, Statutory Crimes, secs. 592-593;
Carmichael v. State, 12 Ohio, 553.)
III. Where an act forbidden by law is intentionally done, the intent to do the act is the
criminal intent which imparts to it the character of an offense. (Am. and Eng. Ency. Law,
372; 4 Am. and Eng. Ency. Law, 673, 674, 690, 691; Hayes v. People, 25 N. Y. 390; Com v.
Crowley, 40 N. E. 862; Com. v. Mash, 7 Met. 472; Com. v. Thompson, 2 Allen, 23; Davis v.
Com., 13 Bush. (Ky.) 318; State v. Whitcomb, 52 Ia. 85; State v. Goodenow, 65 Me. 30; Hood
v. State, 56 Ind. 263; People v. Smith, 20 Hun (N. Y.) 414; Wharton's Crim. Evidence, secs.
723-725, and citations; Wharton's Crim. Law, 8th ed., sec. 88.)
IV. Ignorance of statutory law is criminal negligence. (State v. Goodenow, 65 Me. 30;
Culbreth v. Culbreth, 7 Ga. 64; Dickens v. State, 30 Ga. 383; U. S. v. Fourteen Packages,
Gilp. C. C. 235.)
The appellant was convicted in the district court of the second judicial district, in and for
Washoe county, of the crime of bigamy, and appeals from the judgment of the court and order
denying his motion for new trial. The following facts are not disputed: In the year 1893 in
said county the appellant was married to Sophia Koser by written contract, without the
services of any of the persons authorized by the statute to join persons in marriage, or to
solemnize marriage. Subsequently, and in 1895, the parties separated by mutual consent and
the appellant, while he was so married to Sophia Koser and knowing that said Sophia was
still alive, was formally married to Lauretta Bosford by J. J. Linn, a justice of the peace of
Washoe county.
Bosford by J. J. Linn, a justice of the peace of Washoe county.
There is no contention as to the sufficiency of said first marriage to constitute a valid
marriage at the common law; but counsel for appellant contend that our statute concerning
marriages has superseded the common law and that all marriages not entered into in
conformity to the provisions of the statute are null and void. It is well settled that under the
common law the marriage relation may be formed by words of present assent (per verba de
praesenti), and without the interposition of any person lawfully authorized to solemnize
marriages or to join persons in marriage.
The first act passed by our territorial legislature was an act entitled An act adopting the
common law. At the same session of the legislature it passed the act relating to marriages, of
which the following is section 1: That marriage, so far as its validity in law is concerned, is a
civil contract to which the consent of the parties, capable in law of contracting, is essential.
Although this act contains provisions requiring a license, directing how and by whom
marriages may be celebrated, or by whom persons may be joined in marriage, and prescribing
other regulations in reference thereto, the statute contains no express clause of nullity, making
void marriages contracted by mutual consent per verba de praesenti, except a prior license is
obtained, or solemnization had in accordance with its provisions.
Authorities: The supreme court of the United States in Meister v. Moore, 96 U. S. 76
(opinion by Justice Strong), in construing the Michigan statute, which is substantially the
same as ours, said: It [the instruction] certainly withdrew from the consideration of the jury
all evidence, if any there was, of informal marriage by contract, per verba de praesenti. That
such a contract constitutes a valid marriage at common law there can be no doubt, in view of
the adjudications made in this country from the earliest settlement to the present day.
Marriage is everywhere regarded as a civil contract. Statutes in many states, it is true, regulate
the mode of entering into the contract, but they do not confer the right. Hence they are not
within the principle that, where a statute creates a right and provides a remedy for its
enforcement, the remedy is exclusive.
the remedy is exclusive. No doubt a statute may take away a common-law right, but there is
always a presumption that the legislature has no such intention, unless it be plainly expressed.
A statute may declare that no marriages shall be valid unless they are solemnized in a
prescribed manner, but such an enactment is a very different thing from a law requiring all
marriages to be entered into in the presence of a magistrate or a clergyman, or that it be
preceded by license, or publication of bans, or attested by witnesses. Such formal provisions
may be construed as merely directory instead of being treated as destructive of a common-law
right to form the marriage by words of present assent.
And such, we think, has been the rule generally adopted in construing statutes regulating
marriage. Whatever directions they may give respecting its formation or solemnization, courts
have usually held a marriage good at common law to be good notwithstanding the statutes,
unless they contain express words of nullity. * * * In many of the states, enactments exist
very similar to the Michigan statute, but their object has manifestly been, not to declare what
shall be requisite to the validity of a marriage, but to provide a legitimate mode of
solemnizing it. They speak of the celebration of its right rather than of its validity, and they
address themselves principally to the functionaries they authorize to perform the ceremony. In
most cases the leading purpose is to secure a registration of marriage, and evidence by which
marriages may be proved; for example, by certificate of a clergyman or magistrate or by
exemplification of the registry. In a small number of the states, it must be admitted, such
statutes have been construed as denying validity to marriages not formed according to the
statutory directions. * * *
As before stated, the statutes are held merely directory, because marriage is a thing of
common-law right, because it is the policy of the state to encourage it, and because, as has
sometimes been said, any other construction would compel holding illegitimate the offspring
of many parents conscious of no violation of law.
The Michigan statute differs in no essential particular from those of other states, which
have generally been so construed.
from those of other states, which have generally been so construed. It does not declare
marriages void which have not been entered into in the presence of a minister or magistrate. It
does not deny validity to marriages which are good at common law. The most that can be said
of it is that it contains implications of an intention that all marriages, except some particularly
mentioned, should be celebrated in the manner mentioned. * * *
The sixth section declares how they may be solemnized. The seventh describes what shall
be required of justices of the peace and ministers of the gospel before they shall solemnize
any marriage. The eighth section declares that in every case, that is, whenever any marriage
shall be solemnized in the manner described in the act, there shall be at least two witnesses
present besides the minister or magistrate. The ninth, tenth, eleventh, sixteenth and
seventeenth sections provide for certificates, registers and exemplifications of records of
marriage solemnized by magistrates and ministers. The twelfth and thirteenth impose
penalties upon justices and ministers joining persons in marriage contrary to the provisions of
the act, and upon persons joining others in marriage, knowing that they are not lawfully
authorized so to do. The fourteenth and fifteenth sections are those upon which most reliance
is placed in support of the charge of the circuit court. The former declares that no marriage
solemnized before any person professing to be a justice of the peace or minister of the gospel
shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in
such minister or justice, provided the marriage be consummated with full belief on the part of
the persons so married, or either of them, that they have been lawfully joined in marriage.
This, it is argued, raises an implication that marriages not in the presence of a minister or
justice, or one professing to be such, were intended to be void. But the implication is not
necessarily so broad. It is satisfied if it reach not beyond marriages in the mode allowed by
the act of the legislature. The fifteenth section exempts people called Quakers' or Friends'
from the operation of the act. * * * As to them the act gives no directions. From this, also, an
inference is attempted to be drawn that lawful marriages of all other persons must be in the
mode directed or allowed [by the statute].
lawful marriages of all other persons must be in the mode directed or allowed [by the statute].
We think the inference is not a necessary one. Both these sections, the fourteenth and the
fifteenth, are to be found in the acts of other states, in which it has been decided that the
statutes do not make invalid common-law marriages.
We think that in the above opinion by Justice Strong a clear and proper construction of the
statute is given.
Bishop says: It is well observed by Lord Stowell that in a state of nature no forms need be
added to an agreement of present marriage to render it complete. In the opinion of the Scotch
people and of the people of a part of our states, marriage, emphatically a thing of nature, is
properly regulated by the law of nature. But in England, in other of our states, and largely in
Continental Europe, civilization has undertaken to refine and improve nature's law by denying
marriage except under specified forms and ceremonies. The consequence of which is that
shrewd rakes entrap simple girls into nature's marriage, then at their whim or exalted pleasure
cast them off, and leave a family of children under the disabilities and disgrace of bastardy.
(1 Bish. Mar., Div. and Sep., secs. 385-386.)
Bishop, after an extended review of the authorities on the subject which he cites, restates
the doctrine recognized by the courts of nearly all the states having statutes similar to ours, as
follows: Any required formal solemnization of marriage is an impediment to entering into it;
therefore, since marriage is favored in law, statutory provisions establishing forms are to be
strictly interpreted, not being encouraged by the courts. In the absence of any statute or local
usage controlling the question, only the consent treated of in our last two chapters is
indispensable to the constitution of marriage; and legislation commanding formalities, even
punishing those who celebrate marriage contrary to its provisions, or punishing the parties
themselves, will not render a marriage had in disregard of it void, unless the statute expressly
or by necessary implication declares this consequence. But it is otherwise of a statute which
authorizes the intermarriage of persons before incompetent, for in this case there is no
common law to fall back upon. And such parties must strictly conform to the legislative
direction to render their marriage valid.
conform to the legislative direction to render their marriage valid. In the ordinary case,
wherein the common law may be relied on except as excluded by the statute, only the
particular things which the statute declares to be nullifying if omitted need be observedall
the rest being directory, and non-compliance immaterial. (Id., sec. 449.)
In an elaborate review of the authorities and an exhaustive discussion of the question now
under consideration, the supreme court of Missouri, in Dyer v. Brannock, 66 Mo. 391, held
that a marriage by contract, without solemnization before a minister of the gospel or an
officer of the law was valid, the statute concerning marriages containing no positive
declarations that a marriage not so solemnized shall be void. Numerous other authorities
might be cited to the same effect as the above, but we deem it unnecessary.
In Fitzpatrick v. Fitzpatrick, 6 Nev. 63, this court has construed section 2 of our statute,
and the reasoning of the court is applicable to the construction of all the sections relied on by
counsel for appellant, and by the authorities holding that the statute nullifies common-law
marriages. In that case the plaintiff brought suit to have her marriage declared annulled on the
ground that she was under age and the consent of her parent or guardian had not first been
obtained. Section 2 provides that male persons of the age of eighteen years and female
persons of the age of sixteen years * * * may be joined in marriage; provided always, that
male persons under the age of twenty-one years and female persons under the age of eighteen
years shall first obtain the consent of their fathers or mothers or guardians, respectively, and
provided further, that nothing in this act shall be construed so as to make the issue of any
marriage illegitimate, if the person or persons shall not be of lawful age. The plaintiff's
counsel contended that the plaintiff, by reason of want of age, was incapable of contracting a
valid marriage, except with the consent of her parent or guardian. He argued: The statute
provides that marriage by females under the age of eighteen shall be contracted only with the
consent of their parents or guardian, and a penalty is imposed on the county clerk who shall
issue a license for the marriage of such minor without such consent. * * * Besides, the statute
of Nevada is peculiar in providing that nothing in it shall be construed to make the issue of
any marriage illegitimate, if the persons shall not be of lawful age.
is peculiar in providing that nothing in it shall be construed to make the issue of any marriage
illegitimate, if the persons shall not be of lawful age. Evidently the legislature intended by
this act that all marriages entered into except as provided in said act should be void. If this
was not their intention, then that portion of the act which provides against bastardizing the
issue of such marriage is mere surplusage and without meaning, for the reason that it would
be the merest folly to provide by statute that issue of a valid marriage shall not be
illegitimate.
The court held, however, that: That proviso did not indicate any such intent as claimed by
counsel, as it only relates to issue of persons not of lawful age, that is, eighteen and sixteen
years in males and females, respectively. * * * That by the common law, and the statute law
of this state, marriage is held to be a civil contract. To render the contract valid, the parties
must be able and willing to contract. At common law the age of capacity to make the contract
of marriage was fixed at fourteen years for males, and twelve years for females. * * *
Marriage before such age is voidable at the election of either party, on arriving at the age of
consent, if either of the parties be under age when the contract is made. (2 Kent, 44.) The
statute of this state does not alter the common law, save by substituting the ages therein
named for the common-law ages, and it has generally, if not universally, been held, in
construing similar statutes, that, in the absence of any provision declaring marriage made in
violation of the statutory proviso void, it was a binding and valid contract, upon the theory
that persons of the consenting or lawful age, voluntarily entering into a contract, should be
held thereto, precisely as they would be held to any other lawful contract voluntarily assumed
at the legal age or upon majority. It will be observed that the court held, in effect, that in the
absence of any provision of the statute declaring the marriage of a minor, without the consent
of parent or guardian, void, the marriage was valid, notwithstanding the explicit requirements
of the statute that such consent shall first be obtained.
Our statute does not expressly, nor by necessary implication, as we view it, render a
marriage had in disregard of its prescribed formalities void.
tion, as we view it, render a marriage had in disregard of its prescribed formalities void. We
are to presume that the legislature knew that marriages by contract are valid at common law;
that they have thus been entered into from time immemorial, and are liable to continue to be
so contracted, and if the legislature intended to prohibit such marriages and render them void,
and thus entail upon the parties conscious of no wrong-doing, and their children, such evil
consequences as must necessarily result therefrom, it would have expressed such intent in
such terms as need no construction, and about which even laymen could have no doubt, and
would thus have given due notice to all of the invalidity of informal marriages entered into
simply by contract.
It seems to us clearly that the legislature, by the terms used in the first section of the
marriage act, intended to specifically recognize the common law in respect to marriages. It
therein declares that marriage, so far as its validity in law is concerned, is a civil contract to
which the consent of the parties capable in law of contracting is essential. If the legislature
had intended that compliance with any of the provisions of the succeeding section should also
be essential to its validity in law, we are of opinion it would have so expressed itself, and not
left the definition of a valid marriage in law a civil contract to which the consent of the
parties capable in law of contracting is essential.
We are of opinion that the subsequent sections were enacted for the purposes named above
in the opinion delivered by Justice Strong, and for the additional purpose of accommodating
the views of those who do not believe in marriages by contract simply, and would not be
satisfied with entering into the marriage relation except by some mode prescribed by the
statute, and for the purpose of giving to the forms and ceremonies in practice among many
classes statutory recognition.
While any form or ceremony the parties interested may choose is recognized by the statute,
no particular form is required. The elements essential to a common-law marriage are
requireda contract per verba praesenti. In the language of the statute, the parties shall
declare that they take each other as husband and wife," not necessarily by word of mouth,
but in some manner to declare such assent.
other as husband and wife, not necessarily by word of mouth, but in some manner to declare
such assent. From the great preponderating weight of authority and reason, we are of opinion
that all other provisions of the statute are directory, so far as the validity of the marriage is
concerned, and that a marriage by contract between parties competent to enter into that
relation with each other is valid under our statute.
We, therefore, hold that the said marriage of the appellant to Sophia Koser is valid.
Errors Assigned: On the 14th day of September, 1895, about three weeks before the
alleged second marriage of the defendant, he and his first wife, Sophia, entered into a written
agreement between themselves in settlement of their property rights and agreed to then and
there separate, and further agreed in terms as follows: The parties hereto, each with the
other, covenant and agree to sever their marital relations, and by these presents do sever their
marital relations. Counsel for defendant offered to introduce this agreement in evidence, to
which the district attorney objected on the ground that it was incompetent, irrelevant and
immaterial. The court sustained the objection. This ruling is assigned as error. Counsel
argues, in substance, under the authority of State v. Gardner, 5 Nev. 377, that the agreement
was proper evidence to go to the jury, as tending to show that there was no criminal intent on
the part of the defendant in entering into the second marriage, he believing that the agreement
had annulled the first marriage.
Criminal Intent: The rule adopted by the majority of the court in the said Gardner case, to
the effect that where a statute forbids the doing of a certain thing, and is silent concerning the
intent with which it is done, a person commits no offense, in law, though he does the
forbidden thing, within all the words of the statute, if he had no evil or wrongful intent
beyond that which is involved in the doing of the prohibited act, is disapproved, and the
decision to that effect is hereby overruled. We recognize the well-settled rule that, where a
specific intent is required by statute to constitute the crime, such specific intent enters into the
nature of the act itself, and must be alleged and proved beyond a reasonable doubt.
itself, and must be alleged and proved beyond a reasonable doubt.
The statute under which the defendant was indicted, tried and convicted provides:
Bigamy consists in the having of two wives or two husbands at one and the same time,
knowing that the former husband or wife is still alive. If any person or persons within this
state, being married, or who shall hereafter marry, do at any time marry any person or
persons, the former husband or wife being alive, the person so offending shall be punished. *
* * Nothing herein contained shall extend to any person or persons whose husband or wife
shall have been continually absent from such person or persons for the space of five years
prior to the said second marriage, and he or she not knowing such husband or wife to be
living within that time. Also, nothing herein contained shall extend to any person that is, or
shall be, at the time of such marriage, divorced by lawful authority from the bonds of such
former marriage, or to any person where the former marriage hath been by lawful authority
declared void. There is no intent involved in this case except the doing of the thing
forbidden to be done by the statute.
Whatever one voluntarily does, he, of course, intends to do. If the statute has made it
criminal to do any act under peculiar circumstances, the party voluntarily doing that act is
chargeable with the criminal intent of doing it. (Commonwealth v. Mash, 7 Metcalf, 472.)
There was the intent to marry a second time, not knowing the husband to be dead, and
who had been absent for about one year only, and this is the criminal intent which is of the
essence of the offense. (67 Ala. 84.)
Upon indictment for selling intoxicating liquor to a minor, without authority from his
parents or guardian, it does not matter that the defendant did not know that such person was a
minor. He is bound to know whether such person is a minor or not. (Farmer v. People, 77
Ill. 322.)
A statute of North Carolina authorized the sheriff to issue a license to sell liquor by retail,
only on an order of the board of commissioners, upon application of the person seeking the
license, and made it a criminal offense to retail liquor without a license. On the 1st day of
January, 1883, the board, upon application of Voight, ordered the license to issue, and on
the same day revoked the order.
the board, upon application of Voight, ordered the license to issue, and on the same day
revoked the order. Notwithstanding this revocation, the sheriff afterwards, and on the last day
of said January, issued the license, Voight knowing when he received the license that the
order for its issuance had been revoked. Voight was prosecuted criminally for retailing liquor
without a license. The trial court charged the jury that if the jury were fully satisfied that the
license was issued after the 1st of January, 1883, and defendant knew it was subsequent to the
revoking order, and thereafter sold liquor as charged, * * * they should convict,
notwithstanding, at the time of the act, he had possession of the license. The supreme court
approved the instruction, and said: * * * Nor is it a defense to a criminal accusation that the
defendant did not intend to violate or evade the law, or supposed he had a right to sell, when
he intended to do, and did do, the criminal and forbidden act. The criminal intent is
inseparably involved in the intent to do the act which the law pronounces criminal. (State v.
Voight, 90 N. C. 741.)
The provisions of a statute in Massachusetts are as follows: Whoever falsely makes * * *
any certificate of nomination or nomination paper, or any part thereof, or files any certificate
of nomination or nomination paper knowing the same, or any part thereof, to be falsely made
* * * shall be punished, etc. Connelly was convicted under this statute, first, for falsely
making nomination papers; second, for filing the same. On appeal, the supreme judicial court
held: No fraudulent intent is necessary to constitute the offense. It is immaterial that the
defendant did not intend to break the law. It is enough that he did the things made offenses by
the statute. (Commonwealth v. Connelly, 40 N. E. 862.)
We cite the following additional authorities on the question of intent, which are in line
with the ones given above: State v. Walls, 7 Blackf. 572; The Brig Ann, 1 Gall. 62; Regina v.
Woodrow, 15 Mees. & W. 404; Myers v. State, 1 Conn. 502; State v. Goodenow, 65 Me. 30;
52 Iowa, 85; Hood v. State, 56 Iowa, 263; Davis v. Commonwealth, 13 Bush. 318; Wharton's
Crim. Ev., 8th ed., sec. 725, and cases there cited.
We, therefore, hold that the court did not err in excluding said agreement of the appellant
and Sophia Zichfeld.
This opinion disposes of all the alleged errors; and, finding no error of the court in the
record, the judgment and order appealed from are affirmed.
____________
23 Nev. 318, 318 (1896) Hayes v. Davis
[No. 1471.]
WILLIAM HAYES, Respondent, v. W. L. DAVIS and L. S. SCOTT, A. TRAVIS, W. C.
GALLAGHER, The Board of County Commissioners of White Pine County, Appellants.
CountiesLost Certificate of IndebtednessIssuance of DuplicateInjunction.Where an act of the
legislature authorizes and requires the county commissioners to instruct the auditor of the county to issue to
the owner of the original a certificate of indebtedness similar in amount and in lieu of one that has been
lost, the issuance of the certificate cannot be restrained upon the ground that it is the creation of an unjust
indebtedness against the county, or, in any just sense, an injury to taxpayers.
EquityWhen Court Will Not Exercise Its Equitable Powers.A court of equity will not exercise its equitable
powers to restrain a county from doing what any honest debtor should do, thereby relieving the county
from the burden of having to pay a debt honestly owing by the county.
Appeal from the District Court of the State of Nevada, White Pine county; G. F. Talbot,
District Judge:
Bill by William Hayes against W. L. Davis and the Board of County Commissioners of
White Pine county, to restrain the issuance of a duplicate certificate of indebtedness. From a
judgment in favor of plaintiff, defendants appeal. Reversed.
Thomas Wren and Frank X. Murphy, for Respondent.
Henry Rives, Robt. M. Clarke and J. Poujade, for Appellants.
By the act relating to boards of county commissioners, as amended at the session of 1893,
it is provided that any resident and taxpayer of the county may file written objections to the
allowance of any claim or demand pending before the board of county commissioners.
23 Nev. 318, 319 (1896) Hayes v. Davis
board of county commissioners. It is then made the duty of the board to lay such claim or
demand upon the table for a definite period, not less than ten days, and at the expiration of
such time it may be considered, unless proceedings be instituted in a court of competent
jurisdiction to determine the validity of such claim or demand. (Stats. 1893, p. 120.)
The plaintiff being a resident and taxpayer of the county brought this suit, under the
provisions of the foregoing law, for the purpose of restraining the board of county
commissioners from acting in accordance with the provisions of an act entitled An act for
the relief of W. L. Davis. (Stats. 1893, pp. 22, 23.)
The facts are contained in an agreed statement hereinafter mentioned, filed at the trial, and
upon which the case was tried and decided.
In addition to those facts plaintiff alleged that the issuance of said scrip to said W. L.
Davis, as aforesaid, would cause said plaintiff irreparable damage, and plaintiff is informed
and believes would be illegal and void and lead to vexatious, expensive and protracted
litigation.
The agreed statement of facts is substantially as follows: The plaintiff being indebted to
the defendant in the sum of $2,000, executed two promissory notes for $1,000 each in his
favor, and pledged, among other securities for their payment, a certificate of indebtedness
issued by the county of White Pine for $3,421 25. The certificate while in the possession of
defendant was lost, mislaid or stolen. Thereafter suit was commenced by defendant Davis as
plaintiff against the plaintiff in the present action as defendant to recover the amount of one
of the notes. The suit was compromised and dismissed upon the terms set forth in an
agreement, a copy of which is referred to as an exhibit in this case. By this agreement
defendant Davis was to surrender one of the promissory notes to the plaintiff, and credit the
other with the payment of $464, provided that the lost certificate be not found and restored to
appellant or reissued to him, but if the certificate be subsequently found or reissued, it was to
be redeemed by plaintiff upon payment of $1,539 60.
Appellant further agreed to use due diligence in finding the lost certificate, or, failing to
find it, present the matter to the consideration of the legislature of the state with the view
that a statute be enacted authorizing the issuance of a certificate in lieu thereof.
23 Nev. 318, 320 (1896) Hayes v. Davis
the consideration of the legislature of the state with the view that a statute be enacted
authorizing the issuance of a certificate in lieu thereof. The certificate was not found, and at
the session of the legislature of 1893 a law was enacted entitled An act for the relief of W. L.
Davis, by which the county commissioners of the county of White Pine were authorized and
required to instruct the auditor of the county to issue to defendant a certificate of indebtedness
similar in amount and in lieu of the one that had been lost. (Stats. 1893, pp. 22, 23.)
At the trial the district court enjoined the board of county commissioners from proceeding
under the statute. This ruling is assigned as error.
In State v. Gallagher, 22 Nev. 80, we took occasion to state that a resident taxpayer could
invoke the interposition of a court of equity in a proper case, quoting from the opinion of the
supreme court in Crampton v. Zabriskie, 101 U. S. 601, as follows: Of the right of resident
taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of
the moneys of the county, or the illegal creation of a debt, which they, in common with other
property owners of the county, may otherwise be compelled to pay, there is, at this day, no
serious question. The right has been recognized by state courts in numerous cases; and from
the nature of the powers exercised by municipal corporations, the great danger of their abuse,
and the necessity of prompt action to prevent irremediable injury, it would seem eminently
proper for courts of equity to interfere, upon the application of the taxpayers of a county, to
prevent the consummation of a wrong, when the officers of these corporations assume, in
excess of their powers, to create burdens upon property holders.
In such cases, says Beach, this equity jurisdiction usually rests upon fraud, breach of
trust, multiplicity of suits, or the inadequacy of the ordinary remedies of law. (2 Law of Inj.,
p. 1300.)
None of these grounds are applicable here. No fraud is alleged, nor illegal debt
contemplated. There is no question that, both legally and equitably, the county owes some
one this money; neither is there any question, under the agreed facts, that it is owing to the
plaintiff, Davis, or, at least, that he is the present legal owner of the claim.
23 Nev. 318, 321 (1896) Hayes v. Davis
facts, that it is owing to the plaintiff, Davis, or, at least, that he is the present legal owner of
the claim.
Issuing the duplicate certificate, whether legal or illegal, creates no additional burden upon
the taxpayers further than what justly exists now. If the law under which the board proposes
to act is unconstitutional, and that body has no authority to issue a duplicate certificate where
the original has been lost, then their action will be a nullity, and there is no occasion for a
court to interfere with an injunction. (McCoy v. Briant, 53 Cal. 247.)
But if, on the other hand, the certificate will have some validity, and will, in Davis' hands,
constitute evidence of the county's indebtedness to him, which certainly exists, then it is
simply doing what any honest debtor should do, and such action is not the creation of an
unjust indebtedness against the county, to prevent which a court of equity should exercise its
equitable powers. The plaintiff's demand is an unconscionable one, which such a court should
not assist him in effectuating. (Scranton's Appeals, 122 Pa. St. 175.)
Neither will such action constitute, in any just sense, any injury to the plaintiff or any other
taxpayer. Of course, if Davis cannot collect the money which seems due him without a
certificate or warrant, then preventing the issuance of a duplicate certificate will, under the
circumstances, relieve the county, and consequently the taxpayers, from the burden of having
to pay it, even though honestly owing by the county, but this again is a result that the plaintiff
can hardly expect a court of equity to assist him in consummating.
Judgment reversed, and cause remanded.
____________
23 Nev. 322, 322 (1896) Manning v. Gignoux
[No. 1482.]
FLORENCE M. MANNING, Respondent, v. J. E.
GIGNOUX, Appellant.
PracticeNew TrialNewly-Discovered EvidenceDiligence.In an action for plaintiff's care and support of
defendant's two minor sons under a contract therefor, defendant claimed that at a certain time the contract
was canceled. One of the sons, who had returned to his father, testified to statements of plaintiff, made in
the presence of both sons, that the contract was canceled, as claimed by defendant; and defendant's wife
testified to seeing letters containing statements which showed the same fact. On the production of such
evidence, plaintiff's counsel moved to continue the case, so that the evidence of plaintiff and defendant's
other son, who resided in New York, could be produced to controvert such evidence. A motion by plaintiff,
on the ground of newly-discovered evidence, for a new trial, was supported by affidavits showing that
plaintiff and the son residing with her would testify to the facts disclosed in the motion and affidavit for
continuance, and legal excuse for their absence from the trial was shown. The record disclosed great
diligence on the part of the plaintiff in preparing her case for trial, and in producing all the evidence known
to her, or which could have been known to her, with respect to the alleged facts testified to by defendant's
wife and son, prior to the giving of said testimony by them, unless the said alleged facts are true, the truth
of which the plaintiff denies by affidavits on motion for new trial: Held, that a new trial was properly
granted.
Appeal from the District Court of the State of Nevada, Lyon county; C. E. Mack, District
Judge:
Action by Florence M. Manning against J. E. Gignoux to recover a balance alleged to be
due plaintiff for the care and support of defendant's two minor sons, in which there was a
judgment dismissing the action, and in favor of defendant for costs. From an order granting a
new trial on the ground of newly-discovered evidence, defendant appeals. Affirmed.
Robt. M. Clarke, for Appellant:
I. To warrant the granting of a new trial upon the ground of newly-discovered evidence,
the evidence must be new; it must be newly discovered; it must be material and controlling; it
must not be cumulative; it must not be impeaching merely; and diligence must be shown on
the part of the moving party. (Gen. Stats. 3217; Hayne on New Trials, secs. 88-92; Bartlett v.
Hoyden, 3 Cal. 57; Meyer v. Mowrey, 34 Cal. 516; Hobler v. Cole, 49 Cal. 251; Stokes v.
Monroe, 36 Cal.
Cal. 388; State v. Ray, 53 Mo. 345; Berry v. State, 10 Ga. 511; Goff v. Milholland, 33 Mo.
203; Heintz v. Mertz, 58 Mo. App. 405; 67 Mo. 59; Mayor of Liberty v. Burns, 114 Mo. 43.)
II. A motion for a new trial, on the ground of newly-discovered evidence, is viewed with
distrust. (Hobler v. Cole, 49 Cal. 250; Arnold v. Skaggs, 35 Cal. 684; People v. Demasters,
109 Cal. 607.)
III. The order granting a new trial cannot be supported upon the ground that the court
denied plaintiff a continuance: (1) Because the new trial was not granted upon that ground
(Hayne on New Trials, sec. 167, 284); (2) because the affidavit for continuance upon the
ground of surprise was insufficient; the court did not err in denying the continuance. (6 Cal.
228; 24 Cal. 85; 41 Cal. 494; 21 Ind. 344.)
Langan & Knight, for Respondent:
I. That the evidence sought to be presented by plaintiff is newly discovered, is clearly
shown by the affidavits. Her diligence also appears therefrom and from the record. The new
evidence which respondent would produce is clearly material; and, while it is in part
impeaching testimony, in its nature it also has a direct bearing upon the issues in the case, and
it is not merely cumulative. This new evidence is also controling [controlling]at least, it is
such that it must be admitted that a trial court or jury might deem it so, which is all that need
be said of it in order to render it imperative that this court sustain the order appealed from.
II. Applications for a new trial on the ground of newly-discovered evidence, etc., are
addressed to the discretion of the court, and its order granting or refusing the motion will not
be disturbed except for a plain abuse of discretion. (Hayne on New Trial, 87, 289; Spottswood
v. Wier, 22 Pac. 289; 16 Am. and Eng. Ency. Law, 516, 692, and notes and citations; Wood v.
Donville R. Co., 1 App. D. C. 165; Seegers v. McCreery, 19 S. E. 696; Cleveland C. C. & St.
L. Ry. Co. v. Davis, 36 N. E. 778; Slater v. Drescher, 25 N. Y. 153; 72 Hun, 425.)
III. We would direct the court's attention to the ground stated on motion for a new trial
accident and surprise which ordinary prudence could not have guarded againstand we
maintain that for the reasons set forth above in presenting the matter of
newly-discovered evidence, the order appealed from is also sustained on this ground.
and we maintain that for the reasons set forth above in presenting the matter of
newly-discovered evidence, the order appealed from is also sustained on this ground. The
evidence of defendant, his wife and son was a decided surprise to plaintiff, and because of the
materially different testimony of defendant in his deposition taken before the trial. It was also
such in its nature that no amount of prudence before trial could have guarded against it, and it
could have been met at the trial only upon the continuance asked for and which the court
refused to grant. Applications to courts for new trials on this ground are addressed to
discretion, and orders made thereon will not be disturbed except for plain abuse of discretion.
(Authorities cited, supra.)
IV. Reasonable diligence only need be shown to discover and produce evidence at the
trial. (Hayne on New Trial, 92.)
V. Upon principle and authority an order granting a new trial will not be so readily
disturbed as one refusing to do so. In the one case a mere privilege to determine a dispute is
granted: in the other case the dispute is settled, whether correctly or not, forever. (16 Am. and
Eng. Ency. Law, 516, 683, note 2, and cases cited; Alt v. Chicago & N. W. Ry. Co., 57 N. W.
1126; Hodges v. Bierlein, 56 N. W. 811.)
The plaintiff brought this action to recover the sum of $3,320 of the defendant, balance
due on contract between the parties for plaintiff's care and support of defendant's two minor
sons, as alleged in the complaint.
The following facts are not disputed: That on or about the 4th day of January, 1885, the
parties entered into a contract with each other by the terms of which the plaintiff agreed to
take, care for and maintain the minor sons of the defendant, Fred and John, for the monthly
sum of $80, exclusive of doctor bills; that the defendant agreed on his part to pay the plaintiff
for said care, etc., the said sum of $80 per month, exclusive of doctor bills; that the plaintiff
took said children under said contract on or about _____ day of January, 1885; and from that
date up to the 1st day of August, 1893, cared for and supported them both; that Fred, on the
lst day of August, 1S93, went to the defendant in Nevada on a visit, and did not return to
the plaintiff; that John remained with plaintiff, and had her care and support till the 1st
day of September, 1S94, and not since; that prior to June 1, 1SS7, the defendant paid the
plaintiff for all of her said services rendered up to that date; that for the plaintiff's said
services rendered after June 1, 1SS7, the defendant has paid her $3,200 and no more.
day of August, 1893, went to the defendant in Nevada on a visit, and did not return to the
plaintiff; that John remained with plaintiff, and had her care and support till the 1st day of
September, 1894, and not since; that prior to June 1, 1887, the defendant paid the plaintiff for
all of her said services rendered up to that date; that for the plaintiff's said services rendered
after June 1, 1887, the defendant has paid her $3,200 and no more.
Alleged Facts Denied: The plaintiff alleges in her complaint, in substance, and her
contention is, that all of her said services in the care and support of said children were
rendered under and in pursuance of the terms of said contract of date January 4, 1885, and not
otherwise. The defendant denies that she rendered any services under said contract after
September, 1890, and in his answer he alleges: That on or about the _____ day of
September, 1890, said defendant, having made preparations and arrangements to take,
educate and care for and support the said minor children, terminated said arrangement, and
gave said plaintiff notice thereof, and then demanded the custody and to have the said minor
children, which demand plaintiff refused, and ever since has refused. And defendant avers
that said plaintiff then terminated of her own will, the said arrangement, and insisted on
keeping, caring for and maintaining and supporting the said minor children, contrary to
defendant's desire, and detained and kept them away from defendant, the said Fred Gignoux
until the 1st day of August, 1893, and the said John Gignoux until the present timeto his
great disappointment, injury and damage, and to the injury of said children.
The main contest in the trial of the case was as to the termination of the contract.
The case was tried by the court without a jury. The court found as follows: I find from the
evidence that in the year 1885 plaintiff and defendant entered into an express contract,
whereby defendant was to pay plaintiff the sum of $80 per month for the care and support of
his two sons; that under said express contract plaintiff supported and cared for the two sons of
defendant until September, 1890, at which time said express contract was terminated; that
defendant paid plaintiff in full under said express contract to October 1, 1S90.
paid plaintiff in full under said express contract to October 1, 1890. I further believe from the
evidence that plaintiff cared for and supported the said sons of defendant for some time after
October 1, 1890, for which defendant is liable on an implied contract for what the same is
reasonably worth. As a conclusion from the foregoing, let judgment be entered in favor of the
defendant for his costs in defending this action. Judgment was entered dismissing the action
and in favor of the defendant for his costs. The plaintiff moved for a new trial, and the court
granted the motion. The defendant appeals from the order granting a new trial.
Plaintiff's motion for a new trial was based on the following grounds: (1)
Newly-discovered evidence, material for the plaintiff, which she could not with reasonable
diligence have produced at the trial. (2) Insufficiency of the evidence to justify the decision of
the court. (3) That the decision of the court is against law. (4) Errors of law occurring at the
trial and excepted to by the plaintiff. (5) Accident and surprise which ordinary prudence could
not have guarded against. The application for new trial for the causes named in the first and
fifth subdivisions above was made upon affidavits, and for the other of said causes it was
made on plaintiff's statement on said motion. No counter affidavit was filed.
The court in ruling upon the motion stated and ruled as follows: I have examined and
considered the evidence submitted at the trial of this case and the affidavits offered in support
of the motion for a new trial. In my judgment the affidavits disclose evidence material to the
issue of this case on the part of plaintiff which she could not with reasonable diligence have
discovered and produced on the trial. It is therefore ordered that the judgment herein entered
be set aside and a new trial granted.
From said affidavits it appears that, in support of the allegations of his answer to the effect
that said agreement on which this action was brought had been terminated by both parties, the
defendant introduced as a witness at the trial Fred Gignoux, one of his said sons, who
testified, in substance: That about four or five years ago the plaintiff, in the presence of and in
connection with witness and his brother, John Gignoux, at Albany, New York, and in
plaintiff's residence, stated to them that the defendant in this action had written to her
demanding that said witness and his brother be sent to him; that plaintiff then and there
asked the witness and his brother if they desired to go to said defendant, and they
answered that they did not, and that plaintiff thereupon said that they need not; that they
might remain with her so long as she had anything with which to maintain them, and that
she would resist any effort to take them from her; that she was their guardian in the state
of New York, and would fight in the courts, if necessary; and that the plaintiff further
stated in said conversation to witness and his said brother that she had written to the
defendant and told him that she would not give said John Gignoux and Fred Gignoux up,
and was prepared to go to law.
brother, John Gignoux, at Albany, New York, and in plaintiff's residence, stated to them that
the defendant in this action had written to her demanding that said witness and his brother be
sent to him; that plaintiff then and there asked the witness and his brother if they desired to go
to said defendant, and they answered that they did not, and that plaintiff thereupon said that
they need not; that they might remain with her so long as she had anything with which to
maintain them, and that she would resist any effort to take them from her; that she was their
guardian in the state of New York, and would fight in the courts, if necessary; and that the
plaintiff further stated in said conversation to witness and his said brother that she had written
to the defendant and told him that she would not give said John Gignoux and Fred Gignoux
up, and was prepared to go to law.
It likewise appears from said affidavits that the defendant introduced Mary L. Gignoux,
defendant's wife, as a witness at the trial, who testified, among other things, in substance, that
she saw a letter in the hands of the defendant written by him to the plaintiff in the month of
September, 1890, wherein defendant stated to plaintiff that he wanted his boys out here; that
he would not and could not pay for them any longer, to which plaintiff replied in a letter
received in or about October, 1890, and shown to witness by defendant, that she could not
part with the dear boys, that money was no object to her, and while she had a dollar she
would not give them up.
The alleged newly-discovered evidence disclosed by said affidavits with respect to the
alleged facts testified to by Fred and Mary L. Gignoux, respectively, is the proposed evidence
of John Gignoux, the brother named in Fred's said testimony, and the proposed evidence of
the plaintiff.
The said proposed testimony of John Gignoux, if produced, will tend to show that at or
about the time and place named in Fred's said testimony, the plaintiff did state and say to said
Fred and John that their father wrote of his intention to send for them, or that he was about to
send for them to come to Nevada, but that the plaintiff did not state or say to them at any time
that defendant had sent for them or demanded their custody or control; that the plaintiff
did not state at said time, or at any time, to them or either of them, in the presence or
hearing of John, that she had refused or that she would refuse by letter or otherwise to
comply with the said or any demand of the defendant for the care, custody, control or
removal of said John and Fred, or either of them, or at all; that the plaintiff did not in any
conversation that ever occurred, in the presence or hearing of John, with himself and his
said brother, or at all, state or say that she was their guardian, or of either of them, in
New York or elsewhere, or that she would contest or fight at law, or in any way, any
attempt or effort of the defendant or any one else to take them, or either of them, from
the plaintiff.
them or demanded their custody or control; that the plaintiff did not state at said time, or at
any time, to them or either of them, in the presence or hearing of John, that she had refused or
that she would refuse by letter or otherwise to comply with the said or any demand of the
defendant for the care, custody, control or removal of said John and Fred, or either of them, or
at all; that the plaintiff did not in any conversation that ever occurred, in the presence or
hearing of John, with himself and his said brother, or at all, state or say that she was their
guardian, or of either of them, in New York or elsewhere, or that she would contest or fight at
law, or in any way, any attempt or effort of the defendant or any one else to take them, or
either of them, from the plaintiff.
The proposed testimony of the plaintiff, if produced, would tend to prove that she never
was the guardian at any place of said John and Fred Gignoux, or either of them; that she did
not at the time or place alleged by Fred Gignoux in his said testimony, or at any other time or
place, or at all, state that she would fight, oppose or contest it at law, or otherwise, if any one
attempted to take said boys, or either of them, from her; that plaintiff did not at any time, in
any manner, state to Fred and John, or either of them, that she had refused, or that she would
refuse, by letter, or otherwise, to comply with defendant's said demand, or any demand of his,
for the surrender and delivery or sending of said boys, or either of them, to defendant, or to
any one else; that the plaintiff never received any letter from the defendant described by Mary
L. Gignoux as being written by the defendant to the plaintiff, and never saw such letter in
which the defendant stated that he would not and could not pay for themthe boysany
longer, or any letter containing any such declaration in form, substance or effect; that the
plaintiff did not reply to any such letter as testified to by said Mary L. Gignoux, or to any
other letter, that she could not part with the dear boys, or that money was no object to her, or
that while she had a dollar she would not give them up; that the plaintiff did not write or
send, or cause to be written or sent, to or for the defendant, or any one else, any letter at any
time, or at all, in words or substance, to the effect that she could not or would not part with
or give up said boys, John and Fred, or either of them, or that money was no object to her,
or that while she had a dollar she would not give them up.
could not or would not part with or give up said boys, John and Fred, or either of them, or
that money was no object to her, or that while she had a dollar she would not give them up.
We agree with the trial court in its expressed opinion that the affidavits disclose evidence
material to the issue on the part of the plaintiff in this case which she could not with
reasonable diligence have discovered and produced on the trial. We are of opinion that the
said proposed evidence hereinabove named is new, was newly discovered, is not merely
cumulative, is not merely impeaching evidence, and that it is such as to render a different
result probable on a retrial.
The plaintiff, before the case was finally submitted, and at the first practicable moment
after the witnesses Fred and Mary L. Gignoux had testified to the alleged facts named by
them, moved the court for a continuance of the further trial of the case for a period of six
weeks, upon affidavit, and upon substantially the same grounds and showing as appear in her
affidavits for new trial, which motion was denied. The record discloses great diligence on the
part of the plaintiff and her attorneys in preparing the case for trial, and in producing all the
evidence known to them, or which could have been known to them, with respect to the
alleged facts testified to by Fred and Mary L. Gignoux, prior to the giving of said testimony
by them, unless the said alleged facts are true, the truth of which the plaintiff and John
Gignoux deny by their affidavits on motion for new trial.
The plaintiff and John Gignoux are residents of the state of New York, and were absent
from Nevada during all the time of the pendency of this action and the trial thereof in the
court below, and good and legal excuse for such absence appears in the record.
We are of opinion that the order granting a new trial should be affirmed on the ground and
for the reason stated by the trial court in its opinion granting the same, which appears
hereinabove. We do not deem it necessary to pass upon or consider any of the other grounds
upon which plaintiff based her motion for new trial, and do not do so. The errors, if any, will
not likely be repeated.
The order granting a new trial is affirmed.
____________
23 Nev. 330, 330 (1896) Robinson v. Kind
[No. 1472.]
IRENE M. ROBINSON, Respondent, v. HENRY KIND
and EUGENE HOWELL, Appellants.
Defect of PartiesTrust DeedAction to Set Aside.Where several owners of property convey it to a trustee
upon specified terms and conditions, and one of them brings an action against the trustee to have the trust
deed annulled and the trustee enjoined from acting or claiming thereunder, the other owners are necessary
parties.
IdemEquitable DoctrineBeneficiaries of Trust Who Refuse to Join as Plaintiffs, to Be Made
DefendantsMultiplicity of Suits.In an action by a beneficiary against the trustee, when the right
asserted, if it exists at all, is also held by all other parties similarly situated with the one who sues, and the
decision would in fact determine all their rights, the equitable doctrine primarily requires that the
beneficiaries should unite as plaintiffs; but if any refuse to join, they should be made defendants, in order
that the trustee may not be subject to a multiplicity of suits when the whole controversy could be decided in
one.
IdemParties in InterestMultiplicity of Suits.Plaintiff sued defendants, among other things, to have
canceled a certain deed or instrument of trust, executed by plaintiff and two other persons as parties of the
first part to one of the defendants as party of the second part, and to have defendants and each of them
perpetually enjoined from asserting or acting or claiming under the same. The complaint was demurred to,
one of the grounds of demurrer being that there was a defect of parties plaintiff: Held, that a complete and
binding decree cannot be made as to all the parties directly interested, without the said two other
beneficiaries being brought into court by being made parties, and that otherwise a multiplicity of suits
cannot be avoided. The demurrer should therefore have been sustained.
IdemWaiverJudicial Duty.Under Gen. Stats., sec. 3039, which provides, among other things, that when
a complete determination of the controversy cannot be had without the presence of other parties, the court
must order them to be brought in, it is not a matter of discretion but of judicial duty, and if the parties to
the record neglect to raise the question, the court, upon its own motion, will supply the omission; hence, the
contention that by answering the complaint and going to trial, the demurrer of defendants upon the ground
of defect of parties was waived, is not tenable.
ON REHEARING.
PracticeProcessService by PublicationNon-Resident Defendant.An action to cancel a deed of real and
personal property located in part in the county in which the action is brought, is an action, in part, for the
recovery of real property, or an estate or interest therein, under Gen. Stats., sec. 3040, and, being
substantially a proceeding in rem, may be prosecuted against a non-resident by publication.
District Judge: Action by Irene M.
Action by Irene M. Robinson against Henry Kind and Eugene Howell to set aside a trust
deed and for an injunction. From a judgment in favor of plaintiff, defendants appeal.
Reversed.
Thomas Wren, for Appellants:
I. This action was brought to set aside a so-called trust deed, executed by the plaintiff and
James A. Church and E. D. Church to the defendant, H. Kind. The Churches were not made
parties to the action. To the complaint, the defendants, Howell and Kind, demurred upon the
ground that the complaint did not state facts sufficient to constitute a cause of action, and
upon the ground that there was a defect of parties defendant. The demurrer was overruled,
and the court proceeded to try the case, and in due time rendered a decree in favor of plaintiff
and against the defendants, Kind and Howell.
II. There was clearly a defect of parties defendant. The Churches were the principal parties
in interest, and the demurrer should have been sustained upon the ground that there was a
defect of parties defendant. (Gen. Stats. 3036, 3039; Settembre v. Putnam, 30 Cal. 490;
Wilson v. Lassen, 5 Cal. 114.)
III. Power was vested in Howell to manage, preserve and sell the joint property of the
plaintiff and the Churches with a view to the payment of the expenses of caring for and
preserving the property, a matter in which the Churches were vitally interested and over
which Kind had no control and no interest. The agreement constituted Howell the agent of
plaintiff and the Churches to manage, preserve and sell the property. The court had no
jurisdiction to cancel and set aside this agreement, and enjoin Howell, the agent of the
Churches, from managing and preserving the property for the Churches without bringing the
Churches into court.
IV. It appeared upon the face of the complaint that the Churches were parties absolutely
necessary to a full and final determination of the rights of the parties to the agreement or trust
deed. The agreement was made a part of the complaint, and it was the duty of the court to
order the Churches to be brought in upon an inspection of the complaint and error to fail
to do so without demurrer.
Churches to be brought in upon an inspection of the complaint and error to fail to do so
without demurrer.
Robt. M. Clarke, for Respondent:
I. The action being to revoke a trust; the cestui que trusts, or beneficiaries, were not
necessary parties. They were represented by the defendants, who were their trustees and who
defended the trust for them. (Pomeroy's Rem. and Rem. Rights, sec. 357; Foster's Fed. Pr.,
117; Kerrison v. Stewart, 92 U. S. 155; Storey's Equity Pl. 150, note a; 61 Geo. 599; 10 Saw.
415; 39 Ark. 70; 4 Minn. 313; 113 U. S. 340; Vetterlein v. Barnes, 124 U. S. 169.)
II. By answering the complaint and going to trial, the demurrer for defect of parties was
waived. (Bliss, Code Pleading, 417; Lonkey v. Wells, 16 Nev. 27, 275; 1 Cal. 206, 470, 481;
47 Mo. 459; 10 Ohio, 409; 30 Iowa, 222; 23 Ark. 530.)
This action was brought to have a certain instrument and deed of trust annulled and
canceled, and the defendants and each of them perpetually enjoined from asserting or acting
or claiming under the same, from leasing, operating, encumbering or in any manner disposing
of, using or selling the property mentioned in said instrument or any part thereof. The deed or
instrument was executed on August 2, 1892, by James A. Church and E. D. Church and Irene
M. Robinson, parties of the first part, to Henry Kind, party of the second part, and conveyed
to him, and to his heirs and assigns, certain real estate and personal property therein
described, and by its terms in trust for the said parties of the first part upon the terms and
conditions herein specified; * * * to have and to hold all and singular the said hereinbefore
granted and described premises unto the said Henry Kind, his heirs and assigns, upon the
trust, nevertheless, and to and for the uses and purposes hereinafter limited, described and
declared, that is to say: Upon the sale of any or all of said property, the proceeds thereof shall
be applied: first, to the payment of the mining expenses incurred upon said property, the
wages of a watchman and taxes, and upon the claim of Eugene Howell against said parties
of the first part for services and salary up to May 31, 1S92, as the same appears charged
upon the books of Robinson, Church & Co., but the amount not to exceed $4,100; said
Eugene Howell to have charge of the property as manager as heretofore, and to work, sell
or lease all or any of said property, as he may deem best, and for the best interests of the
respective parties, but to receive no compensation for his services.
claim of Eugene Howell against said parties of the first part for services and salary up to May
31, 1892, as the same appears charged upon the books of Robinson, Church & Co., but the
amount not to exceed $4,100; said Eugene Howell to have charge of the property as manager
as heretofore, and to work, sell or lease all or any of said property, as he may deem best, and
for the best interests of the respective parties, but to receive no compensation for his services.
Said Eugene Howell to keep a correct set of books of all receipts from said property and all
expenditures thereon, and to furnish said party of the second part vouchers for all moneys
expended upon said property. Whenever said Eugene Howell shall be paid in full and all
other payments shall be made as hereinbefore described and provided, said party of the
second part shall reconvey unto said parties of the first part all or any of said properties that
remain unsold, one-half to said Irene M. Robinson and one-half to said James A. and E. D.
Church, said Irene M. Robinson hereby releasing any and all claims she may have against
said James A. and E. D. Church in consideration of the conveyance of one-half of said
property to her as aforesaid.
Complaint: The plaintiff by her complaint alleges, in substance and in brief, that at the
time she executed said deed and instrument, she was the owner of the property therein
described; that she was then sick in both body and mind and was non compos mentis and had
not the capacity to manage said property or to transact any business concerning the same; and
that particularly she was mentally incapacitated to make and execute or comprehend the
meaning of said instrument; that said defendants, and each of them, well knowing the
premises and fully advised concerning the plaintiff's said physical and mental ailments and
her inability to take care of said property, and well knowing that plaintiff did not understand
or comprehend and had not mental capacity to legally execute the deed of trust and power
annexed thereto, did, on the 2d day of August, 1892, knowingly, falsely and fraudulently and
without consideration and with intent, etc., cause and procure the plaintiff to make, execute
and deliver the said conveyance of her aforesaid real and personal property mentioned and
described in said deed of trust, etc., and caused and procured the plaintiff by the deed and
instrument aforesaid falsely, fraudulently and knowingly, etc., to appoint said defendant,
Eugene Howell, to have charge of said property as manager to work, sell and lease all or
any part thereof as he might deem best and apply the proceeds, etc., and when said
Howell should be paid and all other payments provided for in said instrument should be
made, to convey the said property or the portion thereof remaining, one-half to the
plaintiff, Irene M.
of trust, etc., and caused and procured the plaintiff by the deed and instrument aforesaid
falsely, fraudulently and knowingly, etc., to appoint said defendant, Eugene Howell, to have
charge of said property as manager to work, sell and lease all or any part thereof as he might
deem best and apply the proceeds, etc., and when said Howell should be paid and all other
payments provided for in said instrument should be made, to convey the said property or the
portion thereof remaining, one-half to the plaintiff, Irene M. Robinson, and one-half to James
A. Church and E. D. Church. It is also alleged in the complaint that the defendants are
proceeding to execute the terms and provisions of said false and fraudulent instrument; that
they have taken possession and now have possession and control of the said property under
said instrument and have advertised for sale at public auction said property, etc. The said
deed of trust or instrument is annexed to the complaint and made part thereof.
Demurrer and Answer: The defendants demurred to the complaint, one of the grounds of
which was that it appears upon the face of said complaint that there is a defect of parties
defendant, in that James A. Church and E. D. Church are necessary parties defendant. The
demurrer was over-ruled, and the defendants answered, denying each material allegation of
the complaint specifically and denied that the plaintiff was the sole owner of the property
described, and alleged that she was the joint owner of said property with James A. Church
and E. D. Church, and that at the time the trust deed was executed by the plaintiff she well
knew that said Churches were the joint owners of said property with said plaintiff. And they
alleged that there is a defect of parties defendant to said action; that said James A. Church
and E. D. Church are necessary parties defendants in said action.
Judgment and Decree: The case was tried by the court without a jury, and resulted in a
judgment and decree in favor of the plaintiff to the effect that the said deed of trust
mentioned and described in the complaint in this action is fraudulent and void and set aside as
against the said plaintiff, Irene M. Robinson. And the said defendants, Eugene Howell and
Henry Kind, and each of them, are hereby perpetually enjoined from claiming, holding or
asserting any title or right or in exercising any power or authority over or concerning the
said property mentioned and described in said deed, and from making, executing or
delivering any conveyance of said property, or any portion thereof, and from selling,
delivering or otherwise disposing of said property, or any part thereof, and from in any
manner interfering with said property or with the use and enjoyment thereof."
hereby perpetually enjoined from claiming, holding or asserting any title or right or in
exercising any power or authority over or concerning the said property mentioned and
described in said deed, and from making, executing or delivering any conveyance of said
property, or any portion thereof, and from selling, delivering or otherwise disposing of said
property, or any part thereof, and from in any manner interfering with said property or with
the use and enjoyment thereof. Judgment was given against the defendants for plaintiff's
costs, taxed at $77 35. The defendants appeal from the decree and judgment.
Contention: Counsel for appellants contends that James A. Church and E. D. Church are
necessary parties defendant; that they are the principal parties in interest, and contends in
substance that the court erred in overruling the demurrer and in proceeding with the trial of
the case and rendering the judgment and decree therein without acquiring jurisdiction over
said necessary parties defendant.
Authorities: It seems to be well established by the authorities as a general rule in equity,
subject to certain exceptions, that all persons materially interested, either legally or
beneficially, in the subject matter of a suit, are to be made parties to it, either as plaintiffs or
as defendants, however numerous they may be, so that there may be a complete decree which
shall bind them all. (Story, Equity Plead., 9th ed., sec. 72, and note 4; secs. 75, 76.) Where
a person has a direct interest in the subject matter of the suit, his rights will be affected by the
final decree, and he is a necessary party. (Richards v. Richards, 9 Gray, 313, 315.) A
person is a necessary party to a suit when no decree in relation to the subject matter of the
litigation can be made until he is properly before the court as a party; or where the defendants
in the suit have such interest in having such person before the court as would enable them to
make the objection if he were not a party. (Baily v. Inglee, 2 Paige, 278.) If the interest of
the absent parties may be affected or bound by the decree, they must be brought before the
court, or it will not proceed to a decree. (Story, Equity Plead., 9th ed., sec. 137.) If the
defendants actually before the court may be subjected to undue inconvenience, or to danger of
loss, or to future litigation or to a liability, under the decree, more extensive and direct,
than if the absent parties were before the court, that of itself will, in many cases, furnish
a sufficient ground to enforce the rule of making the absent persons parties." {Id., sec.
gation or to a liability, under the decree, more extensive and direct, than if the absent parties
were before the court, that of itself will, in many cases, furnish a sufficient ground to enforce
the rule of making the absent persons parties. (Id., sec. 338.)
The defendants Kind and Howell, and each of them, may be subjected to future litigation
by said James A. and E. D. Church, to enforce the trust and to account for said property and
their stewardship thereof, and the said Howell may be defeated in the collection of his said
claim as against said Church & Church if he fail to use all reasonable diligence to collect the
same out of the proceeds of said property. In any such suits between the defendants and the
Churches the judgment and decree in this case could not avail them for any purpose. It
appears by the complaint that the said James A. and E. D. Church have a direct interest in the
subject matter of the suit, that their interest under the said instrument is identical with that of
the plaintiff, with the additional interest therein of having the release, made by the plaintiff of
all and any claim she may have against them, completed and made effective by a conveyance
to her by defendant Kind of one-half of all or any of said property that remains unsold, as
provided in said instrument, after the payments therein named are made, out of the proceeds
of said property.
Effect of Decree: The decree annuls said instrument as to the plaintiff; takes the property
out of the hands and control of the trustee, Henry Kind, and the agent, Eugene Howell, who
are made by said instrument the trustee and agent, respectively, of the said James A. and E.
D. Church and the plaintiff, the beneficiaries of said trust, and it puts the same into the hands
and control of the plaintiff; it perpetually restrains the defendants, as such trustee and agent,
or otherwise, from in any manner interfering with said property or with the use and enjoyment
thereof. It in effect ousts said James A. and E. D. Church of said property, and strips them of
all their rights and interests therein. It seems that it was intended that the decree should have
such effect. The plaintiff claims in her complaint to be the owner of said property, and her
counsel argues and contends as matter of law that the action, being to revoke a trust, the
cestuis que trust or beneficiaries were not necessary parties; that they were represented
by the defendants, who were their trustees, and who defended the trust for them.
the action, being to revoke a trust, the cestuis que trust or beneficiaries were not necessary
parties; that they were represented by the defendants, who were their trustees, and who
defended the trust for them. The contention is to the effect that in law James A. and E. D.
Church, being beneficiaries, the defendants as trustees defended for them; that this being an
action to revoke the trust, they represented said Churches and bound them in the action, and
that their interest in the said deed and instrument and property is concluded by said decree.
But we cannot agree with counsel in his theory of the law. The said trustees do not represent
the said two beneficiaries, Church, in any greater degree or for any other purpose than they
represent the other beneficiary, the plaintiff, and cannot bind the former any more than the
latter by anything they may or can do by virtue of their powers or relations as trustees.
In Cases of Trusts: Story, in his Equity Pleadings (9th ed., sec. 207), gives the general rule
as to parties in cases of trusts as follows: The general rule in cases of this sort is, that in suits
respecting the trust properly brought by or against the trustees, the cestuis que trust, or
beneficiaries, as well as the trustees, are necessary parties. The trustees have the legal interest,
and, therefore, they are necessary parties. The cestuis que trust, or beneficiaries, have the
equitable and ultimate interest to be affected by the decree, and, therefore, they are necessary
parties. If there are divers cestuis que trust all of them should be made parties to a bill
touching the common interest. (Id. sec. 210, note 2.) In contests respecting property held in
trust, where the interests of the cestuis que trust stand opposed to the right set up by the
complainant, the cestuis que trust are necessary parties. (Prokaw v. Prokaw, 41 N. J. Eq.
216; Tyson v. Applegate, 13 Stev. Eq. 305.) It is undoubtedly a general rule that in suits
respecting trust property, brought either by or against trustees, the cestuis que trust are
necessary parties. (Boyden v. Partridge, 2 Gray, 194; Northampton National Bank v. Crafts,
145 Mass. 447.) In an action by a beneficiary against the trustee when the right asserted, if it
exists at all, is also held by all other parties similarly situated with the one who sues, and the
decision would in fact determine all their rights, the equitable doctrine primarily requires
that the beneficiaries should unit as plaintiffs, but if any refuse to join they should be
made defendants, in order that the trustee may not be subjected to a multiplicity of suits
when the whole controversy could be decided in one.
equitable doctrine primarily requires that the beneficiaries should unite as plaintiffs, but if any
refuse to join they should be made defendants, in order that the trustee may not be subjected
to a multiplicity of suits when the whole controversy could be decided in one. (Pomeroy,
Rem. and Rem. Rights, sec. 355.) In harmony with the above rule, it was held in Dillon v.
Bates, 39 Mo. 292, that, in a suit in equity brought by one distributee of an estate against the
administrator to set aside a settlement on the ground of fraud, all the distributees must be
made parties either as plaintiffs or defendants to avoid a multiplicity of suits and to enable the
court to make a complete and binding decree. In the case at bar we are of opinion that a
multiplicity of suits cannot be avoided, and that a complete and binding decree cannot be
made as to all the parties directly interested without the said two other beneficiaries being
brought into court by being made parties.
Statute Provision: By Gen. Stats., sec. 3039, it is provided: The court may determine any
controversy between parties before it, when it can be done without prejudice to the rights of
others or by saving their rights; but when a complete determination of the controversy cannot
be had without the presence of other parties, the court must order them to be brought in. * *
* In Pomeroy's Remedies and Remedial Rights (2d ed., sec. 419), the author, in commenting
upon the above provision, found, perhaps, in all the codes, says: If there are other persons,
not parties, whose rights must be ascertained and settled before the rights of the parties to the
suit can be determined, then the statute is peremptory; the court must cause such persons to
be brought in; it is not a matter of discretion, but of absolute judicial duty. The enforcement
of this duty does not rest entirely upon the parties to the record. If they should neglect to raise
the question and to apply for the proper order, the court, upon its own motion, will supply the
omission, and will either directly being in the new parties, or remand the cause in order that
the plaintiff may bring them in. Where, then, a case comes under the above rule as to parties,
the defect is not waived by the defendant answering to the merits. The contention of counsel
that, by answering the complaint and going to trial, the demurrer of the defendants on the
ground of defect of parties was waived, is not tenable. "Under some circumstances a
trustee may represent his beneficiaries in all things relating to their common interests in
the trust property.
complaint and going to trial, the demurrer of the defendants on the ground of defect of parties
was waived, is not tenable. Under some circumstances a trustee may represent his
beneficiaries in all things relating to their common interests in the trust property. He may be
invested with such powers and subjected to such obligations that those for whom he holds
will be bound by what is done against him as what is done by him. If he has been made such a
representative, it is well settled that his beneficiaries are not necessary parties to a suit by him
against strangers to enforce the trust, or to one by a stranger against him to defeat it in whole
or in part. (Kerrison v. Stewart, 93 U. S. 155; see p. 160.) And so it is held in effect in other
cases cited by counsel for respondent.
But these authorities are not applicable to this case; this is not a suit by the trustee against
a stranger to enforce the trust, nor is it a suit by a stranger against the trustee to defend the
trust, besides defendant Kind, the trustee, was not invested with such powers and subjected to
such obligations that the beneficiaries Church will be bound by what was done against him in
this action. His powers and obligations under the deed are very limited.
The judgment and decree of the trial court must be reversed, and it is so ordered.
The respondent has petitioned for rehearing. The opinion given on appeal will be found
above. The statement of the case or the authorities heretofore cited need not be repeated here.
Counsel for petitioner admits the correctness of the general rules noted in that opinion as to
necessary parties, but strenuously urges that the case at bar comes within the exceptions to the
general rules, and as an exception he cites Story's Eq. Plead., sec. 78, wherein the author says:
Hence it is a common rule of the court, that when a person who ought to be made a party is
out of the jurisdiction of the court, if the fact is stated in the bill, and admitted by the answer,
or proved (if denied) at the hearing, that of itself constitutes a sufficient ground for dispensing
with his being made a party, and the court will proceed to a decree without him."
made a party, and the court will proceed to a decree without him. Counsel contends that the
suit at bar is not a proceeding in rem, but in personam; that it is not a suit against the
property, but a suit against the person. That the suit being in equity and in personam and
the Churches being absent from the state and residents of the state of New York, they could
not be brought in because beyond the reach of the state's process and without its jurisdiction.
Counsel cites Pennoyer v. Neff, 95 U. S. 714; Hart v. Sansom, 110 U. S. 151, and several
other cases.
We might dispose of this point by simply noting the fact that it does not appear by the bill
or complaint, or otherwise by the record, that the Churches are out of the jurisdiction, of the
court. Where the party is out of the jurisdiction, that fact should be positively averred in the
bill, and not left to mere inference. (Penfold v. Nunn, 5 Sim. 408; Story, sec. 78.) But the
residence of a person out of the state who ought to be joined in a suit does not justify the
omission to make him a party.
Gen. Stats., sec. 3052, provide for service of the summons by publication on a
non-resident person who is a necessary or proper party to the action. (Barbour on Parties,
333.) In the cases of Hart v. Sansom and Pennoyer v. Neff, supra, it is held in effect that if the
court which enters the decree or judgment in a given case is authorized to act therein in
personam only, it acquires no jurisdiction by publication to grant relief. That rule is well
settled, and that is the full extent to which it can be said the authority of these decisions go.
In Arndt v. Griggs, 134 U. S. 316, Mr. Justice Brewer delivered the opinion of the court,
and in an elaborate review of the authorities says: A state may provide by statute that the
title to real estate within its limits shall be settled and determined by a suit in which the
defendant being a non-resident is brought into court by publication. The well-settled rules that
an action to quiet title is a suit in equity; that equity acts upon the person, and that the person
is not brought into court by service by publication, do not apply when a state has provided by
statute for the adjudication of titles to real estate within its limits as against non-residents
who are brought into court only by publication."
against non-residents who are brought into court only by publication.
In the case of Pennoyer v. Neff, supra, on which case counsel for petitioner seems to rely
with confidence as authority for his contention that the Churches cannot be reached by
publication, the court, by Mr. Justice Field, says: Such service may answer in all actions
which are substantially proceedings in rem. * * * It is true that, in a strict sense, a proceeding
in rem is one taken directly against the property, and has for its object the disposition of the
property, without reference to the title of individual claimants, but in a larger and more
general sense the terms are applied to actions between parties, where the direct object is to
reach and dispose of property owned by them or of some interest therein. * * * So far as they
affect property in the state, they are substantially proceedings in rem in the broader sense
which we have mentioned.
In Hart v. Sansom, cited by counsel, the court said: It would doubtless be within the
power of the state in which the land lies to provide by statute that if the defendant is not
found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in
his behalf by a trustee appointed by the court for that purpose.
In Arndt v. Griggs, supra, the court, after quoting the above from Hart v. Sansom, says:
And, of course, it follows that if a state has power to bring in a non-resident by publication
for the purpose of appointing a trustee, it can, in like manner, bring him in and subject him to
a direct decree.
There are numerous decisions, both of the federal and state courts, to the effect that the
state has power through its legislature and courts to dispose of or control property in the state
belonging to non-resident owners out of the state where such non-resident owners will not
voluntarily surrender jurisdiction of their person to the state, or the courts of the state, and
that the owners thereby may be totally deprived of their property, although no notice is ever
given to such owners, except notice by publication. (Arndt v. Griggs, supra, and cases therein
cited.)
Section 3040, Gen. Stats., provides that actions for the recovery of real property, or of an
estate or interest therein, or for the determination in any form of such right or interest,"
shall be tried in the county in which the subject of the action or some part thereof is
situated, subject to the power of the court to change the place of trial.
or for the determination in any form of such right or interest, shall be tried in the county in
which the subject of the action or some part thereof is situated, subject to the power of the
court to change the place of trial.
Actions to set aside fraudulent conveyances of real estate are held to belong to the above
class and may be prosecuted against a non-resident by publication. (Adams v. Cowles, 85 Mo.
501; 8 S. W. Rep. 711; Chicago and A. Bridge Co. v. The Anglo-American Packing Co., 46
Fed. 584; McLaughlin v. McCrory, 55 Ark. 442; 18 S. W. Rep. 762; Works on Courts and
Their Jurisdiotion [Jurisdiction], 270; Jones, McDowell & Co. v. Fletcher, 42 Ark. 422.)
The suit at bar is brought to cancel a deed of conveyance of real and personal property
situated in Eureka and White Pine counties, Nevada, and revest the title in the plaintiff, and is
an action in part under the above authorities, for the recovery of real property, or of an estate
or interest therein, and necessary parties defendant may be brought in by publication. The
court has like power as to the personal property. If the state court has such power with
reference to title to real estate held by non-residents, how much the more will it have the
same with reference to personal property situate within its jurisdiction? (Loaiza v. Superior
Court, 85 Cal. 11.)
Where a court of equity is empowered to cancel a deed and establish title to land within its
jurisdiction by mere force of its decree, to that extent its action is in rem. (55 Ark. 442,
supra.)
In Galpin v. Page, 3 Saw. 124, the court held that proceedings which are in form personal
suits, but which seek to subject property brought by existing lien, or by attachment, under the
control of the court, and those who seek to dispose of property or relate to some interest
therein, but which touch the property or interest only through the judgment recovered, while
not strictly proceedings in rem, so far as they affect property in the state, are treated
substantially as such proceedings.
In Pennoyer v. Neff, supra, the court says that substituted service by publication may
answer in all actions which are substantially proceedings in rem.
The case at bar is substantially a proceeding in rem. Its direct object is to reach and dispose
of the property of the parties described in the complaint. The decree of the trial court is
substantially a decree in rem. The court, by mere force of its decree, annulled the deed of
conveyance and vested the title to the property in the plaintiff.
Having heretofore fully considered and passed upon the other questions presented by the
petition for rehearing, and finding no reason or authority to induce us to change our former
opinion, the petition is denied.
____________
[No. 1484.]
STATE OF NEVADA, ex rel. GUSTAVE A. KOPPE, Relator, v. THE SECOND JUDICIAL
DISTRICT OF THE STATE OF NEVADA IN AND FOR WASHOE COUNTY,
Respondent.
New TrialAppeal from Justice CourtJurisdiction of District Court.After a verdict rendered in the district
court upon the trial of a case appealed from a justice's court, the district court has jurisdiction, when a
proper showing is made, to grant a new trial. (Syllabus by Bigelow, C. J.)
Original Proceeding. Application by the State on the relation of Gustave A. Koppe, for a
writ of certiorari to A. E. Cheney, Judge of the Second Judicial District Court of the State of
Nevada, in and for Washoe county. Writ denied.
Curler & Curler, for Relator:
I. The court of common pleas (district court), in cases appealed from the justice court, acts
strictly in an appellate capacity with powers limited and controlled by the statute. They have
no common-law jurisdiction of discretion. Such powers as are given by the statute they can
exercise, and, as a general thing, no others. (Schuyler v. Mills, 28 N. J. Law, 137.)
II. A judgment of non-suit, or upon the merits, is effectually, equally and finally an end of
the case. There can be revival of the case, or reinstatement or opening of the judgment, or
setting aside a verdict for retrial. It has been really tried in the meaning of the act.
III. It has been repeatedly held in this state that the district court, on appeal, has no greater
jurisdiction than the justice of the peace from whose court the appeal is taken. (Peacock v.
Leonard, 8 Nev, 84; State ex rel. Hardin v. Moore, 9 Nev. 355; Martin v. District Court, 13
Nev. 91.)
IV. While section 3601 of the General Statutes provides that justice courts may grant new
trials in certain cases, still section 3602 provides that the application must be made upon
affidavit and notice, and that the affidavit must be filed with the justice with a statement of
the grounds upon which the party intends to rely. If these provisions are claimed to give the
district court the right to grant a new trial, which proposition relator denies, still it is manifest
that the justice could not act in the absence of the affidavit, and if the justice could not act,
neither could the district court.
Thos. E. Haydon, for Respondent:
I. When an appeal from a justice court is regularly taken to the superior court, it has entire
and complete jurisdiction of the cause for all purposes, and its action in regard to such,
though erroneous, is not subject to certiorari. (Buckley v. Superior Court, 96 Cal. 121; Sherer
v. Superior Court, 96 Cal. 654; Curtis v. Superior Court, 63 Cal. 435, cited 68 Cal. 100; 77
Cal. 307.)
II. The court can, in some cases, grant a new trial of its own motion. (Hayne on New
Trial, sec. 10; Duff v. Fisher, 15 Cal. 380.)
III. If the district court could grant a new trial of its own motion, undeniably it could do so
on an application regularly made; and if it has jurisdiction of its own motion, or on a motion
regularly made, then no certiorari lies to interfere with such discretion and jurisdiction.
The action of Haydon v. Koppe, was appealed from the justice's court of Reno township to
the district court, and upon a trial there, before a jury, the defendant obtained a verdict and
judgment in his favor. Thereupon the plaintiff, in accordance with the provisions of the
statute, moved for a new trial, which was regularly granted by the court.
new trial, which was regularly granted by the court. The relator, the defendant in said action,
has applied for a writ of certiorari to set aside the order granting a new trial upon the ground
that, in cases appealed from a justice's court, the district court has no jurisdiction to grant a
new trial.
This contention is founded upon the language of section 3604, Gen. Stats., which directs
that: All cases appealed to the district court shall be tried anew in said court, but said court
may regulate by rule the practice in such cases in all respects not provided for by statute.
The relator contends that in the trial of appealed cases the district court has only such
jurisdiction as is specially conferred upon it by statute; that it has no common-law
jurisdiction, and, as the right to try anew does not include the right to grant a new trial, no
such power exists. We do not, however, feel justified in taking so restricted a view of the
powers of the district courts. Nothing is said in the statutes as to what the procedure in
appealed cases shall be, except that the court may regulate it by rule, which, so far as we
know, has never been done, except in some few points immaterial to this question, but the
legislature must have expected those courts to pursue the course they generally do pursue, and
that is to try such cases in substantially the same manner that cases originally begun in the
courts are tried. Believing this to be correct practice, we see no occasion to make an
exception of the right to grant a new trial.
Generally, the district courts have the power to grant new trials where a proper showing is
made. The statute seems to make no restriction upon it. The provisions of article II, chapter 7,
of the practice act, which treats of new trials, are in no wise limited to actions originally
begun in the district courts. They are apparently applicable to all cases where there has been a
trial and a decision by a jury, court or referee. To hold that they do not apply to cases
appealed from a justice's court would be to construe into the statute an exception that does not
exist there now.
The case of Schuyler v. Mills, 28 N. J. Law, 137, relied upon by relator, is not in point, for
the reason that the statute of New Jersey in force when that decision was rendered provided
that after the trial of an appeal in the court of common pleas no new trial shall be granted
by the said court."
pleas no new trial shall be granted by the said court. The only question in that case was
whether a non-suit constituted a trial of the case. Having held that it did, there could, of
course, under that statute, be no new trial.
Application for the writ denied.
____________
23 Nev. 346, 346 (1896) State v. Buster
[No. 1475.]
THE STATE OF NEVADA, Respondent, v. JOHN BUS-
TER, a Piute [Paiute] Indian, Appellant.
Criminal LawEvidenceConfessions.The fact that portions of a voluntary confession made by an accused
out of court were not understood by the person to whom they were made, because made in a language with
which he was unacquainted, renders the entire confession inadmissible.
IdemErroneous Admission, When Harmless.Error in admitting the evidence of one witness of a confession
by an accused is harmless where the same confession is proved by other witnesses.
Appeal from the District Court of the State of Nevada, Humboldt county; A. E. Cheney,
District Judge:
John Buster was convicted of murder, and appeals. Affirmed.
S. J. Bonnifield, for Appellant:
I. Defendant's motion to strike out all of the testimony of the witness Eugene Cozzens, as
to the alleged confession, should have been granted. The defendant is an Indian, speaking and
understanding but little of the English language. The witness Cozzens speaks English, but
does not understand the Indian language. The alleged confession was obtained by the witness
through an Indian interpreter, immediately after the arrest of the defendant, and while he was
in the custody of the witness. This state of facts was not disclosed until the cross-examination
of the witness.
II. The order of the court, made after denying defendant's motion, striking out all the
testimony that witness understood through the interpreter, in no way modified the ruling on
the motion, or mitigated its evil effect. The jury could not tell what portion of the testimony
the witness understood through the interpreter; the witness himself could not do this, and
so states.
understood through the interpreter; the witness himself could not do this, and so states.
III. The witness was not competent to testify to any declarations of defendant made
through an interpreter, and as these could not be segregated, his entire testimony as to the
confession should have been stricken out. (Sharpe v. McIntire, 46 Pac. 115.)
IV. It may be argued that there is other evidence in the case sufficient to sustain a
conviction, and therefore the ruling of the court, though erroneous, was harmless. There
might be some force to this argument if the testimony asked to be stricken out was of a
character calculated to prejudice the appellant. But being of such character, the argument
fails. It was calculated to prejudice the appellant, undoubtedly influenced the jury in their
consideration of the other testimony in the case, and, in fact, may have been the particular
evidence upon which the verdict was based. It should have been stricken out in its entirety
whenever it became apparent that it was prejudicial, and that which was incompetent could
not be separated from that which was competent and legal evidence in the case.
L. A. Buckner, District Attorney, and Robt. M. Beatty, Attorney-General, for Respondent.
Appellant was convicted of the crime of murder in the first degree in killing Frank Messa.
The only exception urged in this court is upon a motion to strike out the testimony of Eugene
Cozzens, a witness introduced by the prosecution to prove a confession made by the
defendant, upon the ground that a portion of it was hearsay. The defendant is an Indian. The
confession was spoken in the jargon formed by the mixture of the language of his tribe with
English words. Cozzens did not understand that portion of it which was spoken in the native
language of the Indian, and an interpreter translated it. The court allowed the motion to strike
out all of Cozzens' testimony that he understood by the aid of the interpreter, but all the
testimony that Cozzens understood without the aid of an interpreter was allowed to stand.
Some of the reasons given why extrajudicial confessions should be received with great
caution are that there is danger of mistake from the misapprehension of the witness, the
misuse of words, the failure of the party to express his own meaning, the infirmity of
memory. (People v. Gelabert, 39 Cal. 663.)
In the proof of confessions, as in the case of admissions in civil cases, the whole of what
the prisoner said on the subject, at the time of making the confession, should be taken
together. This rule is the dictate of reason, as well as of humanity. The prisoner is supposed to
have stated a proposition respecting his own connection with the crime, but it is not
reasonable to assume that the entire proposition, with all its limitations, was contained in one
sentence, or in any particular number of sentences, excluding all other parts of the
conversation. As in other cases, the meaning and intent of the parties are collected from the
whole writing taken together, and all the instruments, executed at one time by the parties, and
relating to the same matter, are equally resorted to for that purpose; so here, if one part of the
conversation is relied on, as a confession of the crime, the prisoner has a right to lay before
the court the whole of what was said in that conversation; not being confined to so much only
as is explanatory of the part already proved against him, but being permitted to give evidence
of all that was said upon that occasion relative to the subject matter in issue. (1 Greenleaf on
Ev., 218.)
The court should have granted appellant's motion and have stricken out all of the
testimony of the witness concerning the confession. But the failure to make the proper order
will not result in reversing the judgment as the same confession was conclusively established
by several other witnesses who were familiar with the Indian language and whose testimony
was not attempted to be contradicted, therefore the error was harmless. (State v. Murphy, 9
Nev. 394; Perrin v. State, 50 N. W. 516; Torris v. People, 36 Pac. 153; Mayor of N. Y. v.
National Broadway Bank, 27 N. E. 555; Brown v. Kloch, 5 N. Y. 245; Crim. Pr. Act, sec.
487.)
Judgment affirmed.
____________
23 Nev. 349, 349 (1897)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
JANUARY TERM, 1897.
____________
23 Nev. 349, 349 (1897) Shields v. Orr Ditch Co.
[No. 1478.]
M. SHIELDS, Respondent, v. ORR EXTENSION DITCH
Instructions, Properly DeniedEvidence.Instructions as to the law under a certain state of facts are properly
denied when the uncontroverted evidence shows such facts do not exist.
Contributory NegligenceLiability For DamageEscaping Water From Irrigating Ditch.The doctrine of
contributory negligence does not apply in case of injury to land from the escape of water from a ditch, the
owner of the ditch knowing of the defects therein, and being able to prevent the injury. Under such
circumstances, no duty rests upon the injured party to avoid the consequences of the owner's acts.
DamageSeepage From DitchLiability of Owner.The owner of an irrigating ditch is bound to keep it in
good repair, and is liable for damage caused by seepage of water from it.
PracticeAmendment of ComplaintDiscretion of Trial Court.An amendment of the ad damnum clause of
the complaint, by increasing the amount claimed, is a matter within the discretion of the trial judge, and
may be allowed during the trial.
IdemRecord on AppealError When Cannot be Determined.The appellate court cannot determine whether
or not error was committed by the trial court in excluding questions propounded to a witness, when there is
nothing in the record to indicate what the proposed testimony would be.
InjunctionEscaping WaterPrescriptive Right.Where, in an action against the owner of a ditch, for escape
of water therefrom onto the plaintiff's land, defendants claim a prescriptive right, which would in time ripen
into an adverse right, plaintiff prevailing is entitled to an injunction.
District Judge:
Action for damages and an injunction against the Orr Extension Ditch Company.
Judgment for plaintiff, and defendant appeals. Affirmed.
Torreyson & Summerfield and Thos. E. Haydon, for Appellant:
I. The refused instructions may be summarized as follows: In the construction, operation
and repair of ditches the owners are required to exercise no greater degree of care and skill
than is exercised by ordinary prudent men when the risks are entirely their own, and such care
and skill is relative to all the affecting conditions and attending circumstances of each
particular case.
II. The rulings of the court in refusing to give these requested instructions are equivalent
to holding that it is the absolute legal duty of ditch owners and operators to prevent any water
escaping from their ditches to the injury of others, regardless of conditions and circumstances,
except, possibly, when such injuries are purely accidental results, and the owners are without
blame.
III. That the requested instructions correctly state the law, seems to be clearly established
by leading text writers and by numerous decisions of able appellate courts. (Kinney on
Irrigation, 314, 315, 324, 325; Gould on Waters, 232; Pomeroy on Riparian Rights, 72-3:
Hoffman v. Tuolumne Water Co., 10 Cal. 413; Wolf v. St. Louis Water Co., 10 Cal., 541;
Gibson v. Puchta, 33 Cal. 310; Richardson v. Kier, 34 Cal. 63; Campbell v. Bear River Co.,
35 Cal. 679; Greely Irr. Co., v. House, 14 Colo. 549; McCarty v. Boise Co., 10 Pac. 623;
Hopkins v. Butte Co., 33 Pac. 817.)
IV. It may be admitted that the prevailing doctrine of the English courts is that the owner
or operator of ditches or artificial watercourses becomes an insurer of the owners or
occupants of adjacent lands against all possible injury resulting therefrom. Such, however, in
appellant's judgment, is not the law in America, and certainly not in the arid portions of the
United States where irrigation is regarded by the courts as a natural want and a
necessary right.
arid portions of the United States where irrigation is regarded by the courts as a natural want
and a necessary right. (Reno S. Works v. Stevenson, 20 Nev. 282; Coffin v. Ditch Co., 6 Colo.
443.)
V. Appellant respectfully submits that the refusal of the trial court to give the jury
defendant's requested instruction 3, the same having been properly and aptly plead and legal
evidence having been admitted tending to sustain the plea of plaintiff's contributory
negligence, operated to deprive appellant of the benefit of a meritorious defense.
VI. Appellant plead a prescriptive right, or easement, to permit the water to escape from
its ditch and flow upon the lands of plaintiff in the quantities and manner complained of by
plaintiff in his complaint. Appellant's ditch had been operated by appellant at least nine years
before respondent acquired title to or occupied his ranch. The testimony of appellant's
witnesses was of the general effect that the escape of water from the ditch had gradually
decreased since its construction, and that appellant's claimed right to permit the water to
escape was never denied by plaintiff's predecessors in interest.
VII. Water passing through and beneath the soil by seepage or percolation becomes and is
a part of the soil in which it is found, and an upper proprietor may wholly deprive the lands
lying below of the usual benefits thereof, without incurring any liability for the injury caused
by so doing. (Pomeroy on Riparian Rights, 63; Mosier v. Caldwell, 7 Nev. 363; Strait v.
Brown, 16 Nev. 317; Hanson v. McCue, 42 Cal. 303; Village of Delhi v. Youmare, 45 N. Y.
362.) While it is true that there are decisions holding that the above rule of law does not apply
to water percolating through the banks of impounding structures, yet appellant submits that in
arid countries like Nevada, where irrigation is a natural want and necessity, it should be held
applicable. In Gibson v. Puchta, 33 Cal. 310, it was held that the owner of land is not liable
for annoyance or injury resulting from percolating water resultant from irrigation.
VIII. The trial court erred and exceeded its legal discretion in the premises in granting the
injunction. The escape of the comparatively insignificant quantities of water from appellant's
ditch, and its flow upon the lands of respondent, were not the result of any wanton or
malicious negligence or act of appellant, but, on the contrary, the evidence clearly shows
that it occurred, notwithstanding the strenuous efforts of appellant to prevent it.
from appellant's ditch, and its flow upon the lands of respondent, were not the result of any
wanton or malicious negligence or act of appellant, but, on the contrary, the evidence clearly
shows that it occurred, notwithstanding the strenuous efforts of appellant to prevent it. The
damage as found by the jury was hardly more than nominal, being only $10 per year.
IX. It is earnestly urged by appellant that, in view of the clear and convincing exposition
of the law governing the granting of injunctions contained in the case of Thorn v. Sweeney,
12 Nev. 251, and in the numerous authorities therein cited, an injunction should not have
been granted.
Curler & Curler, for Respondent:
I. It is the duty of ditch owners to so construct, maintain and manage their ditches as that
the property of others lying below their ditches shall not be injured by water escaping
therefrom, and if, from any neglect of the owners of the ditch in not properly constructing,
maintaining, managing and repairing the ditch, water escapes therefrom upon the lands of
others to his damage, the ditch owner is liable. (Kinney on Irrigation, sec. 314.)
II. The uncontradicted evidence in the case shows that during all of the time complained
of, and long before, the defendant (appellant herein) had knowledge that water was escaping
from the ditch upon the lands of plaintiff.
III. The uncontradicted evidence further shows that with this knowledge the defendant
continued, year after year, to use its ditch in identically the same way that it had the years
previous, without any change in its construction, and with the full knowledge that water
would escape therefrom. This of itself shows negligence per se. (Catlin Land and Canal Co.
v. Best, 31 Pac. Rep. 391; Greely Irr. Co. v. House, 24 Pac. Rep. 329.)
IV. The duty of a ditch owner to so use his own property as not to injure the property of
others is absolute, and he is relieved from liability only when the damage is caused by
fortuitous or unlooked-for occurrences that ordinary prudence could not guard against.
V. A person owning a ditch from which water escapes upon the premises of another,
and allows such water to escape after notice, cannot escape liability on the ground that
the land owner, at slight expense, might have prevented any damage by digging a ditch
that would have conducted the water off from his premises.
upon the premises of another, and allows such water to escape after notice, cannot escape
liability on the ground that the land owner, at slight expense, might have prevented any
damage by digging a ditch that would have conducted the water off from his premises.
(McCarty v. Boise City Canal Co., 10 Pac. Rep. 623.)
VI. Water breaking or seeping through the banks of a ditch is in no sense percolating
water, and cannot be considered as part of the soil of the ditch, and defendant's authorities
cited upon that proposition are not applicable to the case at bar. (Pixley v. Clark, 35 N. Y.
520.)
VII. There was no error in permitting plaintiff to file an amendment to his complaint
pending the trial. The right to grant permission to file such an amendment was in the sound
discretion of the court, and courts will always liberally exercise their powers to permit such
an act.
VIII. The granting of the injunction was entirely proper. The gravamen is a trespass upon
land, and it would be continued unless the defendant was restrained. The injury is irreparable
in itself. (Richards v. Dower, 64 Cal. 62; Merced Min. Co. v. Fremont, 7 Cal. 322; Hicks v.
Michel, 15 Cal. 116; Leach v. Day, 27 Cal. 646; Daubenspeck v. Grear, 18 Cal. 444;
Courtright v. B. R. & A. W. & N. Co., 30 Cal. 573.)
IX. In an action where plaintiff complains of continuous wrongful act and consequent
infringement of his rights, an injunction will be granted, although there is no allegation or
proof of actual damage. (Moore v. Clear Lake Water Works, 68 Cal. 148.)
Respondent brought this action to recover damages to his land and crops by water escaping
from appellant's ditch, and for an injunction restraining a repetition of the wrongs complained
of. A trial was had before a jury, which resulted in a verdict for respondent, assessing his
damages in the sum of $50 36, and for costs. Thereupon the court ordered judgment to be
entered upon the verdict, and granted an injunction, restraining defendant from permitting
water to escape from its ditch upon a portion of the described premises and denying it as to
another portion used by respondent as pasture land.
respondent as pasture land. It was shown at the trial that the ditch of defendant was upon a
hillside sloping towards the lands where the damage complained of occurred. The ground
through which the ditch ran was rocky and porous, and water constantly escaped with the
knowledge of the defendant during the irrigating season when the ditch was full, not by
means of overflow, but by seepage and leakage through its banks. These facts were
uncontroverted at the trial.
Several of the instructions asked for by the defendant were refused by the court upon the
ground that they were not applicable to the facts of the case as presented by the testimony.
One of these was in effect that defendant was not liable for a mere accidental injury when no
negligence was shown.
There was no testimony tending to show that the escape of water was the result of
accident; on the contrary, the uncontradicted testimony showed a constant escape of water
during the irrigating season with defendant's knowledge.
Another of the refused instructions was, in effect, that defendant claimed a prescriptive
right to have the escaping water flow upon plaintiff's land; but, in fact, there was no testimony
tending to show such claim. On the contrary, the testimony introduced by defendant itself was
inconsistent with the instruction. Again, two proposed instructions, numbered 1 and 2,
respectively, in the transcript, were refused by the court. Each of them is drawn upon the
theory that defendant might recover if it has not been guilty of negligence. But, as the
uncontradicted testimony showed negligence of defendant in permitting water to escape from
its ditch, the issue of negligence was eliminated from the case. They were, therefore,
inapplicable and misleading.
An instruction also was asked to the effect that the plaintiff himself should have exercised
ordinary care to have avoided the consequences of defendant's acts, and failing to do so the
parties were in mutual fault.
The doctrine of contributory negligence is not applicable to cases of this nature where the
defendant had knowledge of the defects of its ditch and could have prevented the injury.
Under these circumstances, no duty rested upon plaintiff to have avoided the consequences
of defendant's acts.
plaintiff to have avoided the consequences of defendant's acts.
In a case from Idaho, the supreme court of that state said: A person owning a ditch from
which water escapes upon the premises of an adjoining land owner, cannot escape liability on
the ground that such land owner might, at a small expense, have prevented any damage by
digging a ditch on his own land that would have carried off the waste water. (McCarty v.
Boise City Can. Co., 10 Pac. 623; and cases there cited; Black's Pom. Water Rights, sec. 197.)
The court was asked to instruct the jury that, if the injury was caused solely by seepage,
filtering or percolation, defendant was not liable. All of the testimony showed that the
seepage of water from defendant's ditch was the cause of the damage. In such case defendant's
liability is well settled.
In Richardson v. Kier, 34 Cal. 63, the court said: He [the ditch owner] is bound to keep it
[the ditch] in good repair, so that the water will not overflow or break through its banks, or
destroy or damage the lands of other parties; and if, through any fault or neglect of his in not
properly managing and keeping it in repair, the water does overflow or break through the
banks of the ditch and injure the lands of others, either by washing away the soil, or covering
the soil with sand, the law holds him responsible. See, also, Parker v. Larsen, 86 Cal. 236;
Pixley v. Clark, 35, N. Y. 520; Angell on Watercourses, sec. 330.
At the trial the court allowed plaintiff to amend the ad damnum claim. Plaintiff originally
claimed $1,000 damages. By the amendment $1,400 was claimed. This was a matter within
the discretion of the trial judge. If the amendment operated as a surprise to defendant, that
fact could have been stated, and a continuance asked for. The verdict, however, being for only
$50, when $1,400 was claimed by the complaint, no prejudice could have resulted to
defendant by the ruling. (Miaghan v. Hartford Fire Ins. Co., 24 Hun, 58; Johnson v. Brown,
57 Barb. 118; Vibbard v. Roderick, 51 Barb. 616; Currie v. N. J. & C. R. R. Co., 61 Minn.
725.)
An objection was made to a ruling of the court in excluding one or two questions
propounded to the witness Bryant by the defendant. There is nothing in the record to indicate
what the proposed testimony would be.
what the proposed testimony would be. It was incumbent upon appellant to have shown the
substance of his testimony, so that its materiality could be determined by this court. As the
record now is, we cannot determine whether the court erred or not. (Marshall v. Hancock, 80
Cal. 82; Dainese v. Allen, 36 N. Y. Sup. Ct. 98; Berry v. Mayhew, 1 Daley, 54; Girard Fire
Ins. Co. v. Boulden, 11 So. 773.)
Error is also claimed to have been committed by granting an injunction. It is said that the
damages sustained by the plaintiff were trivial, and the inconvenience to the defendant
disproportionate to the loss sustained. In its answer, defendant claimed a prescriptive right
which would in time ripen into an adverse right. In such cases the party prevailing is entitled
to have an injunction for the vindication of his right and its preservation. (Brown v. Ashley,
16 Nev. 316, and cases cited.)
Judgment affirmed.
____________
23 Nev. 356, 356 (1897) State v. Sadler
[No. 1488.]
STATE OF NEVADA, ex rel. C. H. E. HARDIN, Relator, v. REINHOLD SADLER,
Governor of the State of Nevada, Respondent.
Constitutional LawUpon Death of Governor, Lieutenant-Governor Becomes Acting GovernorNo
Vacancy.Under the provisions of article V, sections 17 and 18 of the constitution, if a vacancy occurs in
the office of governor, the powers and duties of the office devolve upon the lieutenant-governor, but there
is no vacancy created in the office of lieutenant-governor thereby. The officer remains lieutenant-governor,
but invested with the powers and duties of governor.
IdemVacancies in Offices of Both Governor and Lieutenant-Governor.If a vacancy exists in both the offices
of governor and lieutenant-governor, the president pro tempore of the senate becomes acting governor until
the vacancy be filled or the disability cease.
Original Proceeding. Application by the State, on the relation of C. H. E. Hardin, for
mandamus to Reinhold Sadler, Lieutenant and Acting Governor of the State of Nevada. Writ
dismissed.
James F. Dennis, for Relator.
James R. Judge, Attorney-General, for Respondent:
I. The fact that the powers and duties of the office of governor, under the constitution,
devolved upon respondent at the time of Governor Jones' death, on April 10, 1896, did not
thereby create or tend to create any vacancy in the office of lieutenant-governor. The vacancy
created by the death of Governor Jones was in the office of governor, not in that of
lieutenant-governor, and this vacancy exists to-day, and has at all times since April 10, 1896.
(Const., sec. 17, art. V; State v. LaGrave, 23 Nev. 216; People ex rel. Lynch v. Budd, 45 Pac.
Rep. 1060.)
By the Court, Belknap, C. J.:
This is an application for a writ of mandamus requiring respondent to commission relator
as lieutenant-governor of the state. The petition, among other things, alleges that the
Honorable John E. Jones, the duly elected governor of the state, died upon the 10th day of
April, 1896; that thereupon the powers and duties of the office of governor devolved upon
respondent, the lieutenant-governor, who is now the acting governor of the state; that at the
last general election relator was the candidate of the Silver party and of the Democratic party
for the office of lieutenant-governor, and received the highest number of votes cast for any
candidate for that office and was elected. A demand upon and refusal by respondent to issue a
certificate of election are alleged, and this court is asked to issue a writ of mandamus
requiring him to do so. The attorney-general has demurred to the petition upon the ground
that it does not state facts sufficient to entitle relator to the relief prayed for.
The provisions of the constitution bearing upon the subject are as follows (article V):
Sec. 17. A lieutenant-governor shall be elected at the same time and places, and in the
same manner, as the governor, and his term of office and eligibility shall also be the same. He
shall be president of the senate, but shall have only a casting vote therein. If during a vacancy
in the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die,
or become incapable of performing the duties of the office, or be absent from the state, the
president pro tempore of the senate shall act as governor until the vacancy be filled or the
disability cease.
pro tempore of the senate shall act as governor until the vacancy be filled or the disability
cease.
Sec. 18. In case of the impeachment of the governor, or his removal from office, death,
inability to discharge the duties of the said office, resignation, or absence from the state, the
powers and duties of the office shall devolve upon the lieutenant-governor for the residue of
the term, or until the disability shall cease.
The gubernatorial succession is covered by the foregoing provisions. If a vacancy occurs in
the office of governor, the powers and duties of the office devolve upon the
lieutenant-governor, but there is no vacancy created thereby in the office of
lieutenant-governor. The officer remains lieutenant-governor, but invested with the powers
and duties of governor.
Again, if, during a vacancy of the office of governor, the lieutenant-governor becomes
incapable of discharging the duties of the office of governor from any of the causes
enumerated in the constitutionin other words, if a vacancy exists in both the offices of
governor and lieutenant-governor, the president pro tempore of the senate acts as governor
until the vacancy be filled or the disability cease. (People ex rel. Lynch v. Budd, 45 Pac.
1060.)
There being no vacancy in the office of lieutenant-governor, the demurrer must be
sustained, and the writ dismissed.
It is so ordered.
____________
23 Nev. 359, 359 (1897) State v. Mack
[No. 1487.]
STATE OF NEVADA, ex rel. CHARLES A. JONES,
Petitioner, v. CHARLES E. MACK, Judge of the First Judicial District Court
of the State of Nevada, in and for Ormsby County, Respondent.
Constitution of the United StatesLand Ceded by StateJurisdiction.Under the constitution of the United
States, article I, section 8, providing that congress shall have power to exercise exclusive legislation over
the seat of government, and to exercise a like authority over all places purchased by consent of the
legislature of the state in which the same shall be, for erection of forts * * * and other needful buildings,
land so purchased ipso facto falls within the exclusive jurisdiction of the United States.
IdemPostofficesFederal Court HousesNeedful Buildings.Postoffices and federal court houses are
needful buildings, under the provisions of article I, section 8, of the constitution of the United States.
JurisdictionLand Ceded by State to Federal GovernmentRight to Execute Criminal Process Upon.Where
a state cedes to the United States exclusive jurisdiction over land purchased as a site for a public building,
for all purposes except the administration of the criminal laws of this state, the state has no jurisdiction
for the punishment of crimes committed on the purchased land, but only the right to execute criminal
process thereon for the violation of the laws of the sate committed elsewhere within the state.
Original Proceeding. Application for a writ of certiorari, by the State, on the relation of
Charles A. Jones, against Charles E. Mack, Judge of the First Judicial District Court of the
State of Nevada, in and for Ormsby county. Proceedings annulled.
James F. Dennis, Wm. Woodburn and R. M. Clarke, for Relator:
I. The offense charged in the indictment found by the state grand jury is an offense which
is punishable under the laws of the United States. (U. S. Rev. Stats. 5319; Sharon v. Hill, 24
Fed. R. 726.)
II. The land in question was acquired by the United States by purchase, with the consent
of the legislature of the state of Nevada.
III. The United States of America has exclusive jurisdiction of all crimes committed upon
territory purchased by the United States, by the consent of the legislature of the state, for
the erection of forts, magazines, arsenals, dockyards and other needful buildings.
23 Nev. 359, 360 (1897) State v. Mack
the United States, by the consent of the legislature of the state, for the erection of forts,
magazines, arsenals, dockyards and other needful buildings. (Const. U. S., art. I, sec. 1, par.
17; Sharon v. Hill, 24 Fed. R. 726; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; 37
Fed. R. 887; Storey on Const., sec. 1216, 1224-7; Hare, Const. Legislation, vol. 2, 1142;
Ordronaux, Const. Legislation, 516.)
IV. As to places purchased by consent of the legislature of the state, etc., no cession of
jurisdiction or authority is needed. The exclusive jurisdiction of the government in all places
purchased by the consent of the legislature of the state follows from the mere consent of the
legislature of the state that the purchase may be made. And as to such places the authority of
the federal government, under the constitution, is as supreme and exclusive as it is over the
territory ceded by the states to become the seat of government of the United States.
V. By other needful buildings is not meant other forts, magazines, arsenals and dockyards,
but buildings in addition to those specified which may be found needful in carrying on the
operations of the government, such as custom houses, mints, postoffices, court houses,
United States land offices, etc. (Ordronaux, Const. Legislation, 516; Hare, Const. Legislation,
142; Sharon v. Hill, 24 Fed. R. 726; Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525; 4
Dillon, C. C. 380; 105 Cal. 509.)
VI. In 1885, by act of February 24th, the legislature of Nevada provided: Section 1. The
jurisdiction of this state is hereby ceded to the United States of America over all pieces or
parcels of land within the limits of this state that may be selected or acquired by the United
States, for the purpose of erecting thereon a public building or public buildings, for the
accommodation of the United States courts, the postoffice and other government offices, and
the United States shall have exclusive jurisdiction over the same during the time the said
United States shall be or remain the owner thereof for all purposes except the administration
of the criminal laws of this state and the service of any civil process therein or thereon. (Gen.
Stats. 350.)
VII. To hold that the words the administration of the criminal laws of this state" mean
that the state retains jurisdiction to legislate for the place purchased for the erection of
needful buildings, with the state's consent, is to contravene the provisions of the
constitution of the United States, and defeat the plain object which the legislature had in
view in passing the statute in question.
23 Nev. 359, 361 (1897) State v. Mack
criminal laws of this state mean that the state retains jurisdiction to legislate for the place
purchased for the erection of needful buildings, with the state's consent, is to contravene the
provisions of the constitution of the United States, and defeat the plain object which the
legislature had in view in passing the statute in question. The words the administration of the
criminal laws of this state must, therefore, mean not the making of laws, but the execution of
them; not legislating for the ceded territory, but enforcing the laws of the state applicable to
that portion of its territory, concerning which it has not ceded its jurisdiction, within the
limits of the territory, concerning which its jurisdiction had been surrendered.
James R. Judge, Attorney-General, and A. J. McGowan, District Attorney, for Respondent.
By the Court, Massey, J.:
This is an original application to the supreme court for a writ of certiorari.
It appears, from the petition and affidavit filed herein, and from the records and
proceedings of the district court certified to this court, that the petitioner was indicted by the
grand jury of Ormsby county on the 11th day of December, 1896, for the crime of assault
with a deadly instrument, with intent to inflict upon the person of another bodily injury; that
the petitioner was duly arrested for the said offense and taken before said district court; that,
when required to plead to said indictment, he interposed a special plea to the jurisdiction of
the court, in which it was alleged that the offense charged in said indictment was committed
upon certain lands in Carson City, Ormsby county, state of Nevada, purchased by the United
States, by consent of the legislature of the state, for the erection of a court house, postoffice
and other needful public buildings, and that upon which lands there had been erected, and the
same were then used by the United States, the said needful public buildings. To this plea the
district attorney demurred, alleging that the facts set up in the plea did not oust the
jurisdiction of the state, and the district court sustained the demurrer, and required the
petitioner to plead to the merits of the indictment, and proceeded to set the action for
trial for a certain day.
23 Nev. 359, 362 (1897) State v. Mack
the petitioner to plead to the merits of the indictment, and proceeded to set the action for trial
for a certain day. It also appears, from the record of the district court, that the district attorney
admitted that the alleged offense was committed upon lands purchased by the United States
with the consent of the legislature of the state of Nevada, and that the United States had
erected a postoffice and court house thereon. Counsel for respondent concede that the special
plea to the jurisdiction of the district court, and the proceedings thereon, are regular and
proper, and that the proceedings in this court upon certiorari are proper and regular, therefore
no opinion is given on these questions.
From the facts above stated, the petitioner contends that the said district court has no
jurisdiction over the alleged offense for the reason that the same was committed upon lands
over which, under the provision of article I, section 8, of the federal constitution, the United
States has the right to exercise exclusive jurisdiction.
Article I, section 8, of the federal constitution provides that congress shall have power * *
* to exercise exclusive legislation, in all cases whatsoever, over such district, * * * and to
exercise a like authority over all places purchased by consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other
needful buildings.
By act of congress, approved January 13, 1885 (U. S. Stats. 1885, chap. 19, p. 181), the
secretary of the treasury was authorized and directed to purchase a site for, and cause to be
erected thereon, at the city of Carson City, in the state of Nevada, a suitable building, * * *
for the accommodation of the United States courts, postoffice; * * * provided, that no money
to be appropriated for said building shall be available * * * until the state of Nevada shall
cede to the United States exclusive jurisdiction over the same * * * for all purposes except
the administration of the criminal laws of said state and the service of any civil process
therein.
By an act of the legislature of the state of Nevada, approved February 24, 1885 (Stats.
1885 p. 40), the jurisdiction of the state was ceded to the United States, over all lands
selected or acquired by the United States, "for the purpose of erecting thereon a public
building or public buildings for the accommodation of the United States courts, * * * and
the United States shall have exclusive jurisdiction over the same * * * for all purposes
except the administration of the criminal laws of this state, and the service of any civil
process therein or thereon."
23 Nev. 359, 363 (1897) State v. Mack
lands selected or acquired by the United States, for the purpose of erecting thereon a public
building or public buildings for the accommodation of the United States courts, * * * and the
United States shall have exclusive jurisdiction over the same * * * for all purposes except the
administration of the criminal laws of this state, and the service of any civil process therein or
thereon.
Section 5391 of the Revised Statutes of the United States makes the offense, charged in
the indictment found by the state grand jury, punishable under the laws of the United States,
when committed in any place ceded to and under the jurisdiction of the United States.
The above are express provisions of state and federal law bearing directly upon the
question to be determined in this action.
It has been held that when a purchase of land has been made by the United States with the
consent of the legislature of the state, for any of the purposes enumerated in section 8, of
article I, of the federal constitution, the land so purchased, by the very terms of the
constitution, ipso facto, falls within the exclusive jurisdiction of the United States. (U. S. v.
Cornell, 2 Mason, C. C. 60; Sharon v. Hill, 27 Fed. R. 726; Fort Leavenworth R. R. Co. v.
Lowe, 114 U. S. 525; Story on Constitution, secs. 1224-1227; Hare, Const. Law, pp.
1142-1145; Ordronaux, Const. Legislation, pp. 516, 517.)
The supreme court of the United States in the case of Fort Leavenworth R. R. Co. v. Lowe,
supra, uses the following language: When the title is acquired by purchase by the consent of
the legislatures of the states, the federal jurisdiction is exclusive of all state authority. This
follows from the declaration of the constitution that congress shall have like authority' over
such places as it has over the district which is the seat of government; that is, the power of
exclusive legislation in all cases whatsoever.' Broader or clearer language could not be used
to exclude all other authority than that of congress; and that no other authority can be
exercised over them has been the uniform opinion of federal and state tribunals, and of the
attorneys-general.
Counsel for respondent vigorously contend that the purchase of the land in Carson City by
the United States for the purposes designated in the act of congress, approved January 13,
1SS5, above cited, does not come within the specific purposes named in section S of
article I of the federal constitution; that the purchase of land for the erection of court
houses and postoffices by the United States, with the consent of the legislature of the
state, does not, ipso facto, vest exclusive jurisdiction in the United States over such lands.
23 Nev. 359, 364 (1897) State v. Mack
the purposes designated in the act of congress, approved January 13, 1885, above cited, does
not come within the specific purposes named in section 8 of article I of the federal
constitution; that the purchase of land for the erection of court houses and postoffices by the
United States, with the consent of the legislature of the state, does not, ipso facto, vest
exclusive jurisdiction in the United States over such lands. This contention is not tenable.
The federal constitution provides for a judicial department; for the establishment of
postoffices and post roads, and buildings are needful for the administration of justice, and
for postoffices. It is too narrow construction of section 8, article I, of the constitution to limit
the exercise of exclusive jurisdiction by the United States over lands purchased for the
specific purposes enumerated therein. Under such construction the use of the words and
other needful buildings adds nothing to that section.
Ordronaux, in his work on Constitutional Legislation, supra, says: The functions of the
general government demanding the establishment of forts, magazines and dock-yards, and the
erection of postoffices, court houses, mints and other buildings in various parts of the United
States, the framers of the constitution made provisions accordingly for acquiring the
necessary sites. It was contemplated that such places should be purchased either from states
or individuals, and as it was necessary for their better government that congress should have
exclusive legislation over them, the clause requiring the legislature of the state making the
cession was introduced in order to avoid conflicts of jurisdiction. See, also, Sinks v. Reese,
19 Ohio St. 306; Sharon v. Hill, supra; Foley v. Shriver, 81 Va. 568; People v. Collins, 105
Cal. 504; Hare, Const. Law, pp. 1141-1143.
Counsel for respondent cite In re Kelly, 71 Fed. R. 545, as strongly supporting their
position. That was a case wherein the state of Wisconsin, by legislative enactment, ceded to
the United States jurisdiction over certain lands purchased by the United States for the
purpose of locating a National Asylum for Disabled Volunteer Soldiers. The legal title to
said lands was not vested in the United States, but was vested in a corporation created by an
act of congress for the purpose.
23 Nev. 359, 365 (1897) State v. Mack
vested in a corporation created by an act of congress for the purpose.
The court (In re Kelly, supra), in discussing the right of the United States to exercise
exclusive jurisdiction over lands purchased by the United States with the consent of the
legislature for the purposes enumerated in section 8, article I, says: The rule thus stated,
whereby legislative consent operates as a complete cession, is applicable only to objects
which are specified in the above provision, and cannot be held to so operate, ipso facto, for
objects not expressly included therein. Whether it rests in the discretion of congress to extend
the provisions not specifically enumerated, although for national purposes, upon declaration
as needful buildings,' and thereby secure exclusive jurisdiction, is an inquiry not presented
by this legislation.
The court then argues that the purchase of lands by the United States with the consent of
the legislature of the state, irrespective of its use, does not vest in the United States exclusive
jurisdiction over the same; and that in determining the question of jurisdiction, under
purchases not made for the specific purposes enumerated in the federal constitution, the
courts must ascertain from the enactments whether it was intended that the United States
should exercise exclusive jurisdiction over such lands because of any need or requirement of
the exercise of the same. Applying this rule to the Kelly case, above cited, the court therein
properly held that the United States did not have the right to exercise exclusive jurisdiction
over the land purchased for the establishment of the National Asylum for Disabled
Volunteer Soldiers, for the reason there was a want of affirmative showing of any
congressional intention to secure exclusive jurisdiction, and the provisions of the law tended
to show that such jurisdiction was neither intended nor wanted, otherwise the legal title to the
lands would have been taken in the United States.
The case at bar is clearly distinguishable from the Kelly case, supra. The lands purchased
under the act of January 13, 1885, in Carson City, for the purposes specified therein, were so
purchased for the erection of needful buildings, within the meaning of section 8 of article I
of the federal constitution. This is clearly manifest from the necessity of the proper exercise
of the rights, powers and duties, under the constitution, of congress to establish
postoffices and post roads, and to create and maintain federal courts.
23 Nev. 359, 366 (1897) State v. Mack
the proper exercise of the rights, powers and duties, under the constitution, of congress to
establish postoffices and post roads, and to create and maintain federal courts. The legislative
intention that such purchase was made under said section 8 is also clearly manifest from the
condition of the act of January 13, 1885, prohibiting the expenditure of any portion of the
money appropriated thereunder, until the state of Nevada had ceded to the United States
exclusive jurisdiction over such lands, and from the act, and the title thereof, of the
legislature of Nevada, approved February 24, 1885, above cited, ceding to the United States
exclusive jurisdiction over such lands. Also, the legislature of Nevada, by an act thereof,
approved January 18, 1883, consenting to the purchase of lands within said state by the
United States, ceded jurisdiction (not exclusive) to the United States over such lands, and
attempted by an express proviso therein to retain concurrent jurisdiction. (Stats. 1883, 13.)
Considering this act with act of congress of January 13, 1885, and with the act of the
legislature of Nevada of February 24, 1885, above cited, it is also clearly manifest that the
attempt, under the act of 1883, to retain concurrent jurisdiction in the state was regarded by
congress as in contravention of the provisions of article I, section 8, of the federal
constitution, as no purchase or appropriation for the purposes of the act was made thereunder,
and until after the act of February 24, 1885, became operative.
Counsel for respondent further contend that the proviso of the act of February 24, 1885,
ceding exclusive jurisdiction of the state to the United States, except the administration of
the criminal laws of the state, reserves to the state all criminal jurisdiction. This is also not
tenable. If the purchase was made, as has been held in this opinion, under the provisions of
article I, section 8, of the federal constitution, any attempt on the part of the legislature to
retain jurisdiction in the state over the lands so purchased would be in contravention of said
section, and therefore void. Considering the legislative intention manifested in the various
acts, above cited, and that congress and the legislature must have had in view the provisions
of article I, section 8, of the federal constitution in the passage of said acts, a reasonable and
fair construction to be placed upon the provision reserving to the state the
"administration of the criminal laws" thereof, is simply the reservation to the state of the
right to execute criminal process upon the lands purchased for violation of the laws of the
state, committed within the state, and without the purchased lands.
23 Nev. 359, 367 (1897) State v. Mack
and fair construction to be placed upon the provision reserving to the state the administration
of the criminal laws thereof, is simply the reservation to the state of the right to execute
criminal process upon the lands purchased for violation of the laws of the state, committed
within the state, and without the purchased lands. Giving the construction contended for
would, in effect, destroy the purpose of the act.
It is a well-settled rule of construction that, when a statute is of doubtful meaning, the first
thing is to ascertain the intention of the legislature that passed the act, and that intention must
be found, if possible, within the act itself; outside the statute, courts will consider the
mischief it was intended to suppress, or, as the case may be, the objects or benefits thereby to
be obtained. (Maynard v. Johnson, 2 Nev. 25.)
From the act itself it is clear that the legislature intended to consent to the purchase of lands
within the state by the United States for the purpose of erecting needful public buildings,
and to cede exclusive jurisdiction over the same to the federal government, under the terms
of article I, section 8, of the federal constitution. Going outside of the statute, what object was
thereby to be attained? That the legislature intended to consent to the purchase of lands within
the state by the United States for the purpose of erecting thereon needful public buildings,
and thereby vest in the United States exclusive jurisdiction over the same. No other object
could be attained, for the United States has the right to acquire lands within the state for
needful buildings by other methods than the one provided in the constitution. The United
States may purchase lands within the state, without the consent of the legislature thereof, but
when so purchased, the possession is simply that of an ordinary proprietor, and the state
retains jurisdiction over the same, within the limits of its authority. (Fort Leavenworth R. R.
Co. v. Lowe, supra; United States v. Connell, supra.)
Therefore the act of the legislature approved February 24, 1885, considered in the light of
well-established rules of constructionfrom the language of the act itself and from the object
to be obtained therebyis simply the consent of the state to the purchase of lands within its
limits, by the United States for the purposes enumerated in said article I, section S, of the
constitution, and such purchase vested exclusive jurisdiction over said lands in the United
States.
23 Nev. 359, 368 (1897) State v. Mack
state to the purchase of lands within its limits, by the United States for the purposes
enumerated in said article I, section 8, of the constitution, and such purchase vested exclusive
jurisdiction over said lands in the United States.
The condition in the act of cession cannot be construed to mean that the state should
reserve jurisdiction for the punishment of crime committed upon the purchased land. The
apparent object of the condition was to prevent these lands from becoming the sanctuary for
fugitives from justice for acts done within the jurisdiction of the state.
In Fort Leavenworth R. R. Co. v. Lowe, supra, the supreme court of the United States, in
commenting upon such provisions, uses the following language: Now, there is nothing
incompatible with the exclusive sovereignty or jurisdiction of one state that it should permit
another state in such cases to execute its process within its limits. And a cession of exclusive
jurisdiction may well be made with a reservation of this nature, which then operates only as a
condition annexed to the cession, and as an agreement of the new sovereign to permit its free
exercise as quoad hoc his own process.
For these reasons, the proceedings of the district court must be and are annulled.
No opinion is given upon the sufficiency of the indictment, as that question is not properly
before this court.
____________
23 Nev. 369, 369 (1897) Reinhart v. Company D
[No. 1483.]
E. REINHART & CO., Respondents, v. COMPANY D, First Brigade, Nevada National
Guard, et al., Appellants.
PracticeAppealTime of Taking.If an appeal lies from an order refusing to open a default, under the
provisions of section 330 of the civil practice act (Gen. Stats. 3352), it must be taken within sixty days or
the right of appeal therefrom is lost.
IdemRecord Deficient.If the order refusing to open a default may be reviewed on appeal from the judgment,
under the provisions of section 338 of the civil practice act (Gen. Stats. 3360), it cannot be done where no
statement is attached to the judgment roll, and all the facts upon which the lower court based its order do
not appear in the judgment roll.
AppealMotion to Strike From RecordImperfect Certificate.A motion to strike out and discharge from the
record an alleged answer of appellants, which could only have been used for the purpose of an affidavit in
support of a motion to set aside a default, and which was so used in the lower court by express stipulation,
must be sustained, it not being properly certified to this court, and not constituting a part of the judgment
roll.
JudgmentNo Error in Record.Where there is nothing before the court but the pleadings and papers
constituting the judgment roll, and no error is disclosed therein, the judgment will be affirmed.
Appeal from the District Court of the State of Nevada, Humboldt county; A. E. Cheney,
District Judge:
Action by E. Reinhart & Co. against Company D, First Brigade, Nevada National Guard,
and others. From an order refusing to set aside a default, and from a judgment in favor of
plaintiffs, defendants appeal. Appeal from the order dismissed. Judgment affirmed.
L. A. Buckner, for Appellants:
I. The court erred in refusing to set aside and annul the default entered in this action.
There was an answer on file in the action, and consequently an issue to be triedan issue of
fact. (Gen. Stats. 3177; Maples v. Galler, 1 Nev. 233.)
II. The judgment roll shows that if there was any default on the part of defendant, which is
not conceded, it was only of a few hours.
III. In relation to opening default, this court, in the case of Howe v. Coldren, 4 Nev. 171
of Howe v. Coldren, 4 Nev. 171, said: The court should be liberal in setting aside defaults
when it appears that the party defaulted has a good defense, and has been guilty of
carelessness and inattention without wilful or fraudulent delay.
Harry Warren and R. M. Clarke, for Respondents:
I. An order granting or refusing a motion to set aside a default is a matter within the sound
legal discretion of the trial court, and, except where there is apparent abuse of that discretion,
this court will not interfere. (Howe v. Coldren, 4 Nev. 172; State v. Mining Co., 13 Nev. 194;
Ewing v. Jennings, 15 Nev. 81; Garner v. Earlanger, 86 Cal. 60; Underwood v. Underwood,
87 Cal. 523.)
II. The appeal from the order refusing to set aside default is not taken within the time
prescribed by law and cannot be considered. (Practic [Practice] Act, sec. 330; Winter v.
Winter, 8 Nev. 261; Weinrich v. Porteous, 12 Nev. 104.)
III. On a judgment by default the answer constitutes no part of the judgment roll, and will be
disregarded. (Practice Act, sec. 205; Sharp v. Daughney, 33 Cal. 505; Iriven v. Davy, 26 Pac.
506.)
IV. There being no statement or bill of exceptions, nothing but the judgment roll can be
considered on the appeal from the judgment, and if the judgment roll be regular and
sufficient, the judgment must be affirmed. (Gen. Stats. 3358-3362; Howard v. Richards, 2
Nev. 128; Klein v. Allenbach, 6 Nev. 159; Hayne on New Trial, sec. 229; 10 Cal. 192; 27 Cal.
109; 28 Cal. 296; 33 Cal. 553.)
V. An order refusing to set aside a default is not appealable. (Gen. Stats. 3352; Hayne on
New Trial, sec. 188, and cases cited.)
VI. The default was entered July 10, 1896; the order refusing to set aside the default was
made July 28, 1896; the judgment was entered September 21, 1896; the appeal was taken
October 9, 1896, more than sixty days after the order appealed from was made. The appeal
was made too late, and the right to appeal (if it ever existed) is lost. (Gen. Stats. 3352; Winter
v. Winter, 8 Nev. 129; Weinrich v. Porteous, 12 Nev. 102; 42 Cal. 27; 23 Cal. 283; 22 Cal.
651.)
This is an appeal from an order refusing to set aside a default, and from a judgment made
and entered in the district court of the second judicial district of the state of Nevada, in and
for Humboldt county.
The respondents commenced an action to foreclose a mortgage in said court on the 21st
day of May, 1896, and the summons, with the proof of service, was returned and filed on the
22d day of May, 1896. On the 26th day of May, 1896, the appellants filed a demurrer to the
complaint, alleging as cause therefor misjoinder of parties plaintiff and defendant, and that
the facts stated were not sufficient to constitute a cause of action. On the 19th day of June,
1896, the demurrer was overruled, after argument, by the court, and the appellants were
allowed twenty days in which to answer. On the 10th day of July, 1896, default was entered
against all the appellants for failure to answer within the time allowed. On the 27th day of
July, 1896, the appellants filed a notice of motion to set aside the default, and, by stipulation
of counsel of the respective parties, the hearing of the said motion was set for July 28, 1896.
The minutes of the court disclose the fact that, on the last-named date, the said motion was
made, oral testimony was offered in support of the same, and, after consideration by the court,
the motion was denied. No objection was made and no exception was saved to the order of
the court denying said motion; neither does the record, in any manner, disclose all the facts
upon which the court based its action. Thereupon the court appointed a commissioner to take
testimony on the amount due on the mortgage sued on, and on the 21st day of September,
1896, upon the report of said commissioner, rendered judgment and decree of foreclosure in
favor of the respondents.
The respondents ask this court to dismiss the appeal taken from the order refusing to set
aside the default. This motion must prevail. If the order is one from which an appeal can be
taken, under the provisions of section 330 of the civil practice act, the right of appeal
therefrom was lost, as the appeal was not taken until the 9th day of October, 1896, or more
than sixty days after the order was made and entered. (Gen. Stats. 3352; Weinrich v.
Porteous, 12 Nev. 102.) If it should be contended that the order is subject to review on
appeal from the judgment under the provisions of section 33S of the civil practice act,
such contention is answered by the fact that no statement is attached to the judgment
roll, and all the facts upon which the lower court based its order do not appear in the
judgment roll.
If it should be contended that the order is subject to review on appeal from the judgment
under the provisions of section 338 of the civil practice act, such contention is answered by
the fact that no statement is attached to the judgment roll, and all the facts upon which the
lower court based its order do not appear in the judgment roll. (Gen. Stats. 3362; McCausland
v. Lamb, 7 Nev. 238; Karth v. Orth, 10 Cal. 192; Harper v. Minor, 27 Cal. 107; Abbott v.
Douglas, 28 Cal. 295; N. & S. C. Co. v. Kidd, 43 Cal.180; Stone v. Stone, 17 Cal. 513; Poole
v. Caulfield, 45 Cal. 107; McAbee v. Randall, 41 Cal. 136; Dooley v. Norton, 41 Cal. 439;
Caulfield v. Doe, 45 Cal. 221.)
Counsel for respondents asks this court to strike out and discharge from the record the
alleged answer of the appellants. This motion must also be sustained. The only purpose for
which it could be used was as an affidavit in support of the motion to set aside the default. It
was so used in the lower court by express stipulation. See record, pp. 11 and 12. It is not a
part of the judgment roll and cannot be so considered. Neither is it properly certified to this
court as an affidavit in support of the motion to set aside the default. (Gen. Stats. 3362;
Weinrich v. Porteous, supra.)
The only remaining matter for consideration is the appeal from the judgment. An
examination of the judgment roll fails to disclose any error. The judgment is sustained by the
pleadings and papers constituting the judgment roll, and must therefore be affirmed.
____________
[No. 1491.]
STATE OF NEVADA, ex rel. EUGENE HOWELL, Petitioner, v. C. A. LaGRAVE,
Controller, Respondent.
Statutory ConstructionLaws Upheld if Possible.Courts are bound to uphold the prior law, if it and a
subsequent one may subsist together, or if it be possible to reconcile the two together, and unless the latter
statute is manifestly inconsistent with and repugnant to the former, both remain in force.
IdemGeneral StatuteNegative WordsRepeal by Implication.The repeal of statutes by implication is not
favored. A general statute without negative words will not repeal the particular provisions of a former law,
unless the two acts are irreconcilably inconsistent.
IdemRepealClerk of Supreme CourtCompensation.Sections 2 and 5 of Stats. 1883, page 78, providing
that the clerk of the supreme court shall prepare the decisions of the court for publication, and shall receive
for his compensation as reporter of such decisions $600 a year, was not repealed, in so far as it provides
compensation for the clerk's services as reporter, by Stats. 1891, page 104, fixing the salary of the secretary
of state at $2,400 a year, and Stats. 1893, page 32, providing that the secretary of state shall be ex officio
clerk of the supreme court.
Constitutional LawIncrease of Salary of State Officer During Term of OfficeClerk of Supreme
Court.Petitioner's term of office as secretary of state and ex officio clerk of the supreme court began
January, 1895, hence the act of 1891 (Stats. 1891, p. 104), fixing the salary of the secretary of state, the act
of 1883 (Stats. 1883, p. 78), fixing the compensation allowed the clerk of the supreme court as reporter of
decisions, and the act of 1893 (Stats. 1893, p. 32), making the secretary of state ex officio clerk of the
supreme court, were all passed prior to the term for which he was elected. Therefore, section 9 of article
XV of the constitution, which provides that The legislature may at any time provide by law for increasing
or diminishing the salaries or compensation of any of the officers whose salary or compensation is fixed in
this constitution; provided, no such change of salary or compensation shall apply to any officer during the
term for which he may be elected, is not applicable to such state of facts.
Secretary of StateClerk of Supreme CourtReporter of DecisionsSeparate Offices.The office of
secretary of state, of ex officio clerk of the supreme court, and the office of reporter of decisions of the
supreme court, are separate and distinct offices, and their being vested in the same person does not change
their nature in this respect.
IdemCompensation as Reporter of DecisionsConstitutional Law.Petitioner's several offices being distinct,
the annual compensation of $600, allowed him as reporter of the supreme court decisions, is not a fee or
perquisite, within the provisions of article XVII, section 5, of the constitution, which provides that no state
officer shall receive any fee or perquisite to his own use for the performance of any duty connected with
his office.
ON REHEARING.
Constitutional LawClerk of Supreme Court, Constitutional Office.Article IV, section 32, of the state
constitution, prior to the amendment of 1889, provided that the legislature should provide for the election
of a clerk of the supreme court and certain county offices. Provision for the election of such clerk was
made by Gen. Stats. 1636. The above-mentioned section of the constitution, as amended in 1889, requires
that the legislature shall provide for the election of certain county officers, omitting mention of the clerk.
Sections 8 and 12 of article XV of the constitution provide that the clerk shall have his office at the seat of
government, and that opinions of the supreme court must be filed therein before its judgments become
operative: Held, that the office of clerk of the supreme court was not abolished by its omission from the
amendment of 1889 and the failure of the legislature to re-establish it, but continued as a constitutional
office under the provision made pursuant to the original constitution; and hence Stats. 1893, p. 32,
providing that the secretary of state shall be ex officio clerk of the supreme court, was effective.
Original Proceeding. Application for writ of mandamus, on the relation of Eugene Howell,
to compel C. A. LaGrave, State Controller, to draw a warrant in petitioner's favor for his
salary as Reporter of Decisions of the Supreme Court. Writ issued.
Torreyson & Summerfield, for Relator:
I. Under the provisions of the act of March 1, 1883, the clerk of the supreme court, as
reporter of decisions, is allowed a compensation of $600 per year, and such amount is made
payable out of the same fund and in the same manner that the salaries of the other state
officers are paid. In the same section he is empowered, in his discretion, to employ a
competent attorney to assist him, who shall also be allowed a reasonable compensation for his
services, not to exceed $700. (Gen. Stats. 2560.)
II. In 1891 the salary of the clerk of the supreme court was fixed at $2,400 annually from
and after the 1st day of January, 1895. (Stats. 1891, p. 104.) By an act approved twelve days
previous to the approval of the last-mentioned act, the superintendent of public instruction
was made ex officio clerk of the supreme court from and after the year 1895. (Stats. 1891, p.
32.) In 1893 an act was passed and approved making the secretary of state ex officio clerk
of the supreme court and repealing the act of March 9, 1S91.
approved making the secretary of state ex officio clerk of the supreme court and repealing the
act of March 9, 1891. (Stats. 1893, p. 32.)
III. No act can be found which in terms repeals any part of the general act of March 1,
1883. If section 5 of the said last-mentioned act is repealed at all, it has been done so only by
necessary implication. But the law looks with particular disfavor upon repeals by implication
and will sustain such repeals only when the repugnancy is irreconcilable, plain and
unavoidable. (State v. Horton, 21 Nev. 304; Thompson v. Supervisors, 111 Cal. 553; People
v. St. Lawrence Co., 103 N. Y. 541; People v. Gustin, 57 Mich. 407; Robinson v. Rippey, 111
Ind. 112; Red Rock v. Henry, 106 U. S. 596.)
IV. A general statute, without negative words, will not repeal the particular provisions of
a former one, unless the two acts are irreconcilably inconsistent.
V. The act of March 1, 1883, is a special act, having in view the subject only of the
publication and the distribution of the Nevada Reports and the incidental instrumentalities
necessary to accomplish the purposes of the act. One of the particular instrumentalities is the
compensation of the reporter of the decisions and that of a competent attorney to assist him.
The legislature did not have in view the subject of salaries at all, and the word salaries is
used only once in the entire act, and then only by way of illustration in section 5 of the act.
VI. Under the terms of the law the clerk of the supreme court receives a salary for his
official services as such officer. As reporter of decisions he receives a compensation only.
The distinction between salary and compensation is plainly obvious as used in both the
constitution and the statutes.
VII. The clerk of the supreme court receives a salary for the performance of the entire
general duties of that office, but the reporter of decisions receives a fixed compensation for
the performance of specific duties. An act fixing the salary of the clerk of the supreme court
cannot fairly be so construed as to affect the compensation of the reporter of decisions in the
absence of such manifest legislative intention.
VIII. If the latter acts deprive the reporter of decisions of his compensation of $600 a
year, it would seem clear that they also deprive his assistant of his compensation of not to
exceed $700 per volume of reports, as specified in the same section of the law of 1SS3.
of his compensation of $600 a year, it would seem clear that they also deprive his assistant of
his compensation of not to exceed $700 per volume of reports, as specified in the same
section of the law of 1883. If section 5 of the said act is repealed or superseded, it necessarily
follows that relator is deprived of the assistance of an attorney as well as of his own
compensation. The attorney-general will hardly contend that relator is not authorized to
employ a competent attorney to assist him in the preparation of the decisions, and yet, failing
to make such contention, he virtually concedes away his case at bar.
IX. The preparation of the decisions of the supreme court for publication has no necessary
nor germane connection with the duties of either the secretary of state or of the clerk of the
supreme court. They are duties that are imposed upon him by the statute alone, and can hardly
be said to be official in character. For the performance of such services he is entitled to the
statutory compensation besides his official salary. (Love v. Baer, 47 Cal. 364; Malone v.
State, 51 Cal. 549; Green v. State, 51 Cal. 577; Niles v. Muzzy, 33 Mich. 61.)
I. At the time the duties of the clerk of the supreme court were imposed upon the seeretary
[secretary] of state, the salary of that officer was by law fixed at $2,400 per year, which law
was in force and effect at all times during which relator claims compensation for services as
reporter of supreme court decisions. Had it been the intention of the legislature to allow
additional salary to relator for these added duties, it could very readily have had its intention
made manifest in apt and unmistakable language. Having failed to do so, it is beyond
question that the salary of $2,400 fixed by the legislature of 1891 as the salary of the secretary
of state was intended to be in full payment and the only salary to be paid him for all duties
and ex officio duties which he should perform.
II. Relator is only reporter of the supreme court decisions, if at all, by virtue of his office
of secretary of state and ex officio clerk of the supreme court, and is only entitled to demand
and receive the salary of $2,400 per year fixed by the act of 1S91 as salary of secretary of
state by reason of his qualification and performance of the duties of these offices.
the act of 1891 as salary of secretary of state by reason of his qualification and performance
of the duties of these offices. This being the case, can it be successfully denied or maintained
that the acts of 1891 and 1893 do not in effect repeal the act of 1883, in so far, at least, as the
salary of clerk of the supreme court for reporting the decisions of that court is concerned,
which is the question in the case?
III. While it may be conceded that the repeal of a law by implication is not favored, still a
statute may be repealed by express words or by necessary implication. Repeal by implication
takes place whenever, by subsequent legislation, it becomes apparent that the legislation did
not intend the former act to remain in force. (Christy v. Board of Supervisors, 39 Cal. 3; Ex
parte Henshaw, 73 Cal. 506; Pennie v. Rois, 80 Cal. 270; Capron v. Hitchcock, 98 Cal. 432.)
IV. The salary of the secretary of state after January 1, 1895, was by the act of the
legislature of the state of Nevada, approved March 21, 1891, fixed at $2,400, and it was not
within the power of the legislature to increase or diminish the amount thus provided to be
paid that officer during the term for which relator was elected, as is sought to be done in the
case at bar. Such a course is in direct violation of the plain provisions of the constitution of
this state. (Art. XV, sec. 9, Const. Nev.)
V. Again, it is provided by article XVII, section 5, of the constitution, that no officer
mentioned in this section shall receive any fee or perquisites to his own use for the
performance of any duty connected with his office, or for the performance of any additional
duty imposed upon him by law. (Crosman v. Nightingill, 1 Nev. 323.)
VI. At the time the act of the legislature above cited (Stats. 1883, p. 78) was approved, to
wit: March 1, 1883, it was provided by section 32, article IV, of the constitution of the state
of Nevada, as follows: The legislature shall provide for the election by the people of a clerk
of the supreme court, county clerks, county recorders, who shall be ex officio county auditors,
district attorneys, sheriffs, county surveyors, public administrators and other necessary
officers, and fix by law their duties and compensation. This section of the constitution was
thereafter amended, which amendment was submitted to the people of the state and
approved at the special election held February 11, 1SS7.
submitted to the people of the state and approved at the special election held February 11,
1887.
VII. This amendment became a part of the constitution when it was adopted by the people,
and was in force at the date relator entered upon the discharge of the office of secretary of
state, ever since has been, and now is, a part of the constitution of this state. From and after
the time this amendment became a part of the constitution of Nevada, the office of clerk of
the supreme court, with all its attendant duties, ceased to be a constitutional office, and
without legislative creation then or thereafter ceased to exist as an office. Without an office
there can be no officer to fill it, and it will not be seriously contended that there is any such
office in this state to-day, existing under the constitution or created by legislative enactment,
as the one which the relator claims to perform the duties of in his capacity of secretary of state
and ex officio clerk of the supreme court, under which latter office he claims to be entitled to
the compensation prayed for in his petition; and if there be no such office, there certainly
cannot be any authority for payment to him of compensation for services in performance of
the duties of an office which does not exist.
The relator petitions this court for a peremptory writ of mandamus to compel the
respondent, as state controller, to draw his warrant on the state treasurer, in favor of relator,
for the sum of $1,200, the sum appropriated for him by an act of the legislature entitled An
act to pay the deficiencies in the appropriations for the years 1895 and 1896, approved
February 16, 1897. The relator is secretary of state and his term of office commenced on the
8th day of January, 1895. His salary was fixed at $2,400 per annum by an act entitled An act
reducing and regulating the salaries of certain state officers of the state of Nevada. (Stats.
1891, 104.) By an act entitled An act to consolidate certain state offices in the state of
Nevada (Stats. 1893, 32), it is provided: The secretary of state shall be ex officio clerk of
the supreme court and ex officio state librarian. By its terms this act took effect on the 8th
day of January, 1895, and by virtue of said act the relator has been ex officio clerk of
supreme court from said date and has been performing the duties of that office.
act the relator has been ex officio clerk of supreme court from said date and has been
performing the duties of that office.
An act to provide for the publication and distribution of the Nevada Reports (Stats. 1883,
78) provides:
Sec. 2. The clerk of the supreme court shall prepare such decisions for publication, by
giving the title of each case, a syllabus of the points decided, a brief statement of the facts
bearing on the points decided (when the same are not sufficiently stated in the opinion), the
names of counsel and a reference to such authorities as are cited and have a special bearing on
the case, and it shall be the further duty of said clerk to prepare a full and comprehensive
index to each volume of said decisions. * * *
Sec. 5. Said clerk of the supreme court shall receive for his compensation as reporter of
said decisions the sum of $600 per year, payable out of the same fund and in the same manner
that the salaries of other state officers are paid; and he may, in his discretion, employ a
competent attorney to assist him in the preparation of said decisions, who shall be allowed a
reasonable compensation for his services not to exceed $700 for each volume.
The relator, during each of the years 1895 and 1896, prepared for publication, in
accordance with the requirements of said act of 1883, all the decisions of the supreme court
rendered during said two years, and to pay for said services said appropriation of $1,200 was
made by said act of 1897. Counsel for relator contends that said act of 1883 and every part
thereof remains in force. If this contention be correct, the writ prayed for must be granted.
The attorney-general contends, for respondent, that the above-named acts of 1891 and
1893, in effect, repealed the said act of 1883 in so far as it provides compensation for the
clerk's services as reporter of the decisions of the supreme court.
The rule that courts are bound to uphold the prior law if it and a subsequent one may
subsist together, or if it be possible to reconcile the two together, is well settled. (McCool v.
Smith, 1 Black, 470; Endlich on the Interpretation of Statutes, sec. 210; see the numerous
authorities cited by note 1.)
1.) Unless the latter statute is manifestly inconsistent with and repugnant to the former, both
remain in force. (13 N. J. Ch. Rep. 290, and cases cited.) A general statute without negative
words will not repeal the particular provisions of a former one unless the two acts are
irreconcilably inconsistent. (State ex rel. Dunkle v. Beard, 21 Nev. 218.) The repeal, total or
partial, of statutes by implication is not favored. As to this rule there can be no difference of
opinion, and further authorities need not be cited.
Under the well-established rules for the construction of statutes has the provision of
section 5 of the act of 1883, which allows the clerk compensation as reporter of the decisions
of the supreme court, been repealed? This is the vital question in this case.
From the organization of the state government up to 1875 the office of the clerk of the
supreme court was on the fee system. For certain specified acts to be performed he was
allowed certain specified fees. By the statutes of 1875, 84, he was provided with a salary, and
it was provided that the fees collected by the clerk thereafter shall be paid into the state
treasury. By an act (Stats. 1881, 43), his salary was reduced and fixed at $2,400 a year on
and after the 1st day of January, 1883, and thus the salary remained up to January, 1895. By
the act entitled An act to provide for the publication and distribution of Nevada Reports,
approved March 1, 1883, 78, supra, in addition to his salary of $2,400 he was allowed for
compensation as reporter of the decisions of the supreme court the sum of $600 per year. It is
evident that the salary was given him as compensation for performing the specific duties for
which he had formerly been allowed certain fees, and that the compensation as said reporter
was allowed him for the specific work of preparing the decisions of the supreme court for
publication, which work does not come within or belong to the class of duties properly
pertaining to the office of clerk of the supreme court. It requires particular skill and legal
ability, which the class of duties belonging to the clerk's office does not require, and evidently
for this reason the legislature authorized the clerk to employ a competent attorney to assist
him in this work, which he did, and to pay for such assistance the legislature made an
appropriation for each volume published since the work was placed in the hands of the
clerk.
appropriation for each volume published since the work was placed in the hands of the clerk.
The act of 1893, supra, which makes the secretary of state ex officio clerk of the supreme
court, in effect abolished the $2,400 salary of the clerk. That result was evidently intended by
the legislature.
We are of opinion that that result was the only result intended to be accomplished, so far
as reducing the expenses or compensation incident to the clerk's office was concerned. We do
not think that it can be reasonably inferred that the legislature, by abolishing a salary which
had been provided in lieu of former fees for performing certain specific duties imposed upon
the clerk by law, intended thereby to also abolish the compensation allowed him for
performing certain other specified duties imposed upon him by another law, the latter duties
being no part of the duties for the performance of which the salary had been given. We fail to
find any conflict between the provision in question of said section 5 of the act of 1883 and
any provision of any other act.
It is argued by the attorney-general that: The salary of the secretary of state after January
1, 1895, was by the act of the legislature of the state of Nevada, approved March 21, 1891,
fixed at $2,400, and it was not within the power of the legislature to increase or diminish the
amount thus provided to be paid that officer during the term for which relator was elected, as
is sought to be done in the case at bar. Such a course is in direct violation of the plain
provisions of the constitution of this state. And he cites section 9, article XV, of the
constitution, which provides: The legislature may at any time provide by law for increasing
or diminishing the salaries or compensation of any of the officers whose salary or
compensation is fixed in this constitution; provided, no such change of salary of
compensation shall apply to any officer during the term for which he may have been elected.
The salary of the secretary of state of $2,400 was fixed by said act of 1891 long prior to the
commencement of the relator's term of office. The compensation allowed the clerk as reporter
of said decisions was fixed by said act of 1883. The act of 1893, in making the secretary of
state ex officio clerk of the supreme court, fixed the relator's compensation as reporter of
said decisions two years prior to relator's term of office.
of the supreme court, fixed the relator's compensation as reporter of said decisions two years
prior to relator's term of office. The said salary or said compensation fixed for the term of
office to which relator has been elected has in no manner been changed; hence, section 9,
article XV, of the constitution does not justify the respondent's refusal to draw said warrant.
It is further contended for respondent that the action of the legislature in appropriating the
sum of $1,200, for relator's services as reporter of the decisions of the supreme court during
the years 1895 and 1896, was in direct violation of the constitution. And section 5, article
XVII, of the constitution is cited, which provides certain salaries for the several state officers
for the first term of office succeeding the formation of the state government, among which
officers the secretary of state is named, and said section provides: No officer mentioned in
this section shall receive any fee or perquisites to his own use for the performance of any duty
connected with his office, or for the performance of any additional duty imposed upon him by
law.
In State, ex rel. H. C. Cutting, Superintendent of Public Instruction, v. C. A. LaGrave,
State Controller, 23 Nev. 120, the court said: The office of superintendent and the various ex
officio offices mentioned in these statutes are each a separate and distinct office, and their
being vested in the same person does not change their nature in this respect. The court cited
State v. Laughton, 19 Nev. 202; People v. Durick, 20 Cal. 94; Kinsey v. Kellogg, 65 Cal. 111.
Under the above authorities the offices of secretary of state, of ex officio clerk of the
supreme court and the office of reporter of the decisions of the supreme court are separate and
distinct offices, and their being vested in the same person does to change their nature in this
respect.
If it was permissible under the constitution for the legislature to confer upon the secretary
of state a separate and distinct office charged with separate and distinct duties, in no way
naturally pertaining to the duties of the secretary's office, and he performs these duties, we are
of opinion that there is no provision of the constitution that prohibits the legislature from
providing for paying him for said services.
legislature from providing for paying him for said services. (Love v. Baehr, 47 Cal. 364.)
In Crossman v. Nightingill, 1 Nev. 323, Lewis, C. J., speaking for the court, said: The
constitutional restriction imposed by section 9, article XV, and section 33, article IV, is
doubtless intended only to prevent the increase of salary or compensation of officers, as such
officers, or for duties naturally belonging to their positions, and can scarcely be extended to
prevent the allowance of a compensation to officers upon whom duties or responsibilities in
no wise connected with their offices are imposed. * * * It would be putting a construction too
restricted upon the constitutional limitation to hold that the provision which prohibits the
increase of salary or compensation would prevent the holding of two offices by the same
person, or the receipt of the salary of both by the same individual. We think the limitation in
article XV, section 9, and article IV, section 33, should be confined to the increase of salary
or compensation for the discharge of duties naturally belonging to a certain office and should
not prohibit compensation for the performance of other and independent duties in no wise
belonging to it.
The annual compensation of $600, allowed the relator as reporter of the decisions of the
supreme court, is certainly not a fee or perquisite, in the meaning of section 5, article XVII,
supra. Said section 5 of the act of 1883 not having been repealed, and not being in conflict
with any provisions of the constitution, the writ of mandate prayed for must issue.
It is so ordered.
The respondent, by the attorney-general, has filed a petition for rehearing upon the
grounds, stated in brief and in substance, that at the time of the passage of the legislative act
of 1883 under which the relator claims his compensation as reporter of the decisions of the
supreme court as ex officio clerk of said court, it was provided by section 32, article IV, of the
constitution that the legislature shall provide for the election by the people of a clerk of the
supreme court," and the several county officers named in said section; that on the 11th
day of February, 1SS7, said section was amended, and as amended provides: "The
legislature shall have power to increase, diminish, consolidate or abolish the following
county officers," naming them, "and the legislature shall provide for their election by the
people"; that, at the time this amendment was adopted, the office of clerk of the supreme
court, with all its attendant duties, ceased to be a constitutional office, and, without
legislative creation then or thereafter, ceased to exist as an office; that the legislature has
not attempted to create the office of clerk of the supreme court, or ex officio clerk of the
supreme court, since said amendment of the constitution in 1SS7; that there is not now
any warrant or authority of law for the existence of any such office or officer under the
constitution or laws of this state.
court, and the several county officers named in said section; that on the 11th day of
February, 1887, said section was amended, and as amended provides: The legislature shall
have power to increase, diminish, consolidate or abolish the following county officers,
naming them, and the legislature shall provide for their election by the people; that, at the
time this amendment was adopted, the office of clerk of the supreme court, with all its
attendant duties, ceased to be a constitutional office, and, without legislative creation then or
thereafter, ceased to exist as an office; that the legislature has not attempted to create the
office of clerk of the supreme court, or ex officio clerk of the supreme court, since said
amendment of the constitution in 1887; that there is not now any warrant or authority of law
for the existence of any such office or officer under the constitution or laws of this state. And
he adds: Without an office there can be no officer to fill it, and it will not be seriously
contended that there is any such office in this state to-day existing under the constitution, or
created by legislative enactment, as the one which the relator claims to perform the duties of
in his capacity of secretary of state and ex officio clerk of the supreme court, under which
latter office he claims to be entitled to the compensation prayed for in his petition, and if there
be no such office, there certainly cannot be any authority for payment to him of compensation
for services in performance of the duties of an office which does not exist.
If the contention of the attorney-general be true that, since the adoption of the amendment
of the 11th of February, 1887, we have had no constitutional office of clerk of the supreme
court, and that since that time the legislature has failed to create a legislative office of clerk of
the supreme court, or an office of ex officio clerk of the supreme court, and that no such office
or officer has existed under the constitution or the laws since that date, then the people by the
adoption of said amendment and the legislature by non-action have practically abolished the
supreme court for the last ten years. For it is provided, in section 8, article XV, that no
judgment of the supreme court shall take effect and be operative until the opinion of the court
in such case shall be filed with the clerk of said court.
It will be observed that said original section 32 required the legislature to provide for the
election of the clerk of the supreme court by the people, and that section 32, as amended in
1887, omits mention of said clerk, and it seems to be the theory of counsel for respondent that
this omission had the effect of causing the office of clerk of the supreme court to cease to
exist as a constitutional office.
The clerk of the supreme court was elected at the general election in 1864, and other state
officers, under the provisions of section 18, article XVII, of the constitution, to hold his office
till the first Tuesday after the first Monday of January, 1867, and until his successor was
qualified. On March 9, 1866 (Gen. Stats. 459), the legislature provided for the election of all
state and county officers at the general election thereafter to be held in November of that year
and at subsequent general elections. In obedience to the requirements of said original section
32, article IV, of the constitution, the said act of 1866 provided: Sec. 12. At the general
election in the year eighteen hundred and sixty-six, and at the general election every four
years thereafter, the clerk of the supreme court shall be chosen by the qualified electors of the
state, and shall hold his office for the term of four years from the first Monday of January
next after the election, and until his successor is qualified.
The fact that the provision of the original section 32 of article IV, concerning the clerk of
the supreme court, was left out of said section as amended in 1887, in no manner affects the
above provisions of the statute, and in no degree affects the constitutional character of the
office of clerk of the supreme court. The legislature having fully complied with the terms of
the original provisions of said section as to the clerk, by providing for his election at the
general election in 1866, and at the general election every four years thereafter, there was no
particular necessity for incorporating the omitted provisions in the amended section, and there
would have been no great propriety in doing so. The constitution not only requires the
opinions of the supreme court to be filed with its clerk before its judgments shall take effect
or be operative, but requires the clerk of the supreme court to keep his office at the seat of
government.
keep his office at the seat of government. (Secs. 8, 12, art. XV.)
We conclude that we still have an office of clerk of the supreme court, and that it is a
constitutional office; that by virtue of the statute (1893, 32) which provides: The secretary of
state shall be ex officio clerk of the supreme court, the secretary of state is ex officio such
clerk, or is the clerk of the supreme court by virtue of his office of secretary of state.
The contention of counsel for the respondent being without merit, the petition for
rehearing is denied.
____________
23 Nev. 387, 387 (1897)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
____________
APRIL TERM, 1897.
____________
[No. 1490.]
THE STATE OF NEVADA, ex rel. H. C. CUTTING, ex officio Curator of the State
Museum, Relator, v. C. A. LaGRAVE, State Controller, Respondent.
Constitutional LawClaims Against StateWhen Should Be Presented to Board of ExaminersCompensation
For Office Fixed by Law.An act to provide relief for H. C. Cutting (Stats. 1897, p. 21) appropriated a
sum of money to the said H. C. Cutting for services rendered to the state as ex officio curator of the state
museum. It was contended that, as the claim for services was not presented to the board of examiners prior
to the passage of the enactment by the legislature, it was in violation of article V, section 21, of the
constitution, which provides that the governor, secretary of state and attorney-general shall * * * constitute
a board of examiners, with power to examine all claims against the state (except salaries or compensation
of officers fixed 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: Held, that the act appropriates the sum of money for services rendered as ex
officio curator of the state museum and is, therefore, compensation of an officer fixed by law and is
expressly exempted by the terms of the constitution.
Original Proceeding. Application by the state, on the relation of H. C. Cutting, ex officio
Curator of the State Museum, for writ of mandamus to compel C. A. LaGrave, State
Controller, to draw a warrant in relator's favor for his salary as Curator of the State
Museum.
Museum, for writ of mandamus to compel C. A. LaGrave, State Controller, to draw a warrant
in relator's favor for his salary as Curator of the State Museum. Writ issued.
H. C. Cutting, in pro per., for Relator:
I. Relator had no such claim against the state as should have been passed upon by the
board of examiners. The law of 1891, fixing relator's salary for his ex officio offices, had
become inoperative, and no salary can be recovered by a public officer unless fixed by law.
(Cutting v. LaGrave 43 Pac. 471.) Therefore, if relator could recover nothing for these ex
officio services rendered, he had no claim against the state, such as is contemplated by section
21, article V, of our constitution, for had he such claim, he could sue the state and recover.
I. Article V, section 21, constitution of Nevada, provides: The governor, secretary of
state and attorney-general shall * * * constitute a board of examiners, with power to examine
all claims against the state (except salaries or compensation of officers 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 the board of examiners.
II. The act of the legislature appropriating said sum of $2,800 for the relief of relator is for
payment for services rendered to the state of Nevada as ex officio curator of the state museum.
III. Relator does not set forth or allege in his petition that any claim against the state of
Nevada for said sum of $2,800, or any other sum of money, for services rendered by him, was
presented to, considered or acted upon by the board of examiners before said claim was
passed upon by the legislature.
IV. Under section 21, article V, constitution of Nevada, and section 1895, Gen. Stats., it is
the duty of the board of examiners to consider and act upon all claims against the state
{except salaries or compensation of officers fixed by law), for which no appropriation has
been made, before such claims shall be passed upon by the legislature, and, being thus
required, it is necessary for relator to allege in his petition that the claim for the recovery
of which this proceeding was commenced was presented to the board of examiners to be
considered and acted upon, prior to being passed upon by the legislature, as there is no
claim or pretense that it is for salary or compensation fixed by law.
examiners to consider and act upon all claims against the state (except salaries or
compensation of officers fixed by law), for which no appropriation has been made, before
such claims shall be passed upon by the legislature, and, being thus required, it is necessary
for relator to allege in his petition that the claim for the recovery of which this proceeding
was commenced was presented to the board of examiners to be considered and acted upon,
prior to being passed upon by the legislature, as there is no claim or pretense that it is for
salary or compensation fixed by law. It is a fact, which, if controverted, relator must prove to
maintain his action, and being so it should have been alleged in his petition. (Jerome v.
Stebbins, 14 Cal. 457; Green v. Palmer, 15 Cal. 411; O'Connor v. Dingley, 26 Cal. 21;
Johnson v. Santa Clara Co., 28 Cal. 547; Daly v. Russ, 86 Cal. 117.)
Relator applied for a writ of mandamus requiring the state controller to draw his warrant
for the sum of $2,800 in accordance with the provisions of an act entitled An act to provide
for the relief of H. C. Cutting, approved February 18, 1897. (Stats. 1897, 21.) Respondent
demurs to the petition upon the ground that it does not state facts sufficient to constitute a
cause of action. The point relied upon is that the claim was not presented to the board of
examiners prior to the passage of the enactment by the legislature.
The constitution (art. V, sec. 21) provides that the governor, secretary of state and
attorney-general shall * * * constitute a board of examiners, with power to examine all claims
against the state (except salaries or compensation fixed 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.
The act appropriates the sum of money mentioned to Mr. Cutting for services rendered as
ex officio curator of the state museum; it is, therefore, clearly compensation, and is expressly
exempted by the terms of the constitution.
It is said that the salaries and compensation exempted by the conseitution [constitution]
must be those that have been settled by preexisting law.
existing law. Had such been the intention, apt words would have been employed. For
instance: In section 28 of article IV, it is provided that no money shall be drawn from the
state treasury as salary or compensation to any officer or employee of the legislature, or either
branch thereof, except in cases where such salary or compensation has been fixed by a law in
force prior to the election or appointment of such officer or employee. This illustration from
the constitution shows that its framers intended that no question should arise touching the
meaning that should be attached to its language in that case, and it is probable that if any
restriction or qualification had been intended to apply to section 28 of article IV it would have
been fairly expressed, and not left to implication or conjecture. We find no reason for giving
to the sentence an interpretation other than the natural import of the language used.
Let the writ issue.
____________
23 Nev. 390, 390 (1897) State v. Murphy
[No. 1489.]
THE STATE OF NEVADA, Respondent, v. CHARLES MURPHY, JOHN CHIATOVICH
and WILLIAM A. INGALLS, Appellants.
Criminal LawCourts Judicially Know Whisky to Be a Spirituous LiquorStatute Complied With.The
designation of an offense in a complaint and recognizance as selling whisky to an Indian sufficiently
complies with the statute which makes it an offense to sell, barter, give or in any way dispose of any
spirituous or malt liquor, wine or cider of any description to an Indian within this state (Stats. 1887, 37), it
being within the judicial knowledge of courts that whisky is a spirituous liquor.
Statute of LimitationsBail Bond, an Instrument in WritingAction on Barred in Six Years.An action upon
a bail bond is an action upon an obligation founded upon an instrument in writing, and is not an action
upon a statute for a forfeiture or penalty to the state which must be commenced within two years after the
right of action has accrued. The right of action is, therefore, barred by the six-year clause of our statute.
RecognizanceBail BondTimePlace and Court, Fixed by Law.A contention that a recognizance is void
for the reason that no time, place or court is named therein is not tenable, as the law designates the time,
place and court in which the defendant must appear and surrender himself in execution of the judgment.
Filing of RecognizanceRecord of Court.Where the transcript on appeal shows that the recognizance was
made a record by order of the court, and the complaint avers that it was filed, a contention that the
recognizance is void, for the reason that it was never filed or became a record in the cause or court, is not
tenable.
Criminal LawPracticeRecognizance or Bail Bond, How and When Forfeited.Section 523 of the criminal
practice act (Gen. Stats. 4403) provides when and in what manner a forfeiture of a recognizance shall be
taken. It provides that if, without sufficient excuse, the defendant neglect to appear for arraignment, or for
trial or judgment, or upon any other occasion, when his presence in court may be lawfully required, or to
surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its
minutes, and the recognizance * * * shall thereupon be declared forfeited. This provision of the statute is
mandatory. It does not require that the record must show that the defendant was called, neither is it
necessary thereunder that the defendant should be called.
IdemDefective RecordForfeiture of Bail Bond.A record reading as follows: Now, on motion of the
district attorney, it is ordered that the bonds of Charles Murphy be and they are hereby declared forfeited,
is fatally defective in not showing the fact that the defendant neglected to appear upon some one of the
occasions designated in said section 523 of the criminal practice act.
IdemPracticeStay of ExecutionRecognizance Given Before Appeal Taken.The trial court has no
authority to make an order staying the execution of a judgment of imprisonment, and no authority to release
or order the release of a defendant, under recognizance, or otherwise, after judgment of imprisonment has
been rendered against him, except after an appeal therefrom has been taken, and any recognizance given
for that purpose at such a time is void.
IdemAppealStay of Execution.An appeal from a judgment of imprisonment does not operate as a stay of
execution thereof, and the defendant, if in custody, must so continue, unless admitted to bail.
Appeal from the District Court of the State of Nevada, Esmeralda county; C. E. Mack,
District Judge:
Action by the State against Charles Murphy, John Chiatovich and William A. Ingalls on a
recognizance of bail forfeited by Murphy. From a judgment in favor of plaintiff, defendants
Chiatovich and Ingalls appeal. Reversed.
Action on a bail bond in the following words: In the District Court of the State of
Nevada, in and for the County of Esmeralda. The State of Nevada, Plaintiff v. Charles
Murphy, Defendant. An indictment having been found in the above-named court on the
day of , 1891, and filed in the above-named court, charging the defendant above
named with the crime of selling whisky to an Indian, and thereafter, he, the above-named
defendant, was presented to said court, and entered his plea of not guilty of said offense
charged in said indictment, and thereafter a jury was regularly impaneled, and the trial of
said issue was had on the - day of June, 1S91.
filed in the above-named court, charging the defendant above named with the crime of selling
whisky to an Indian, and thereafter, he, the above-named defendant, was presented to said
court, and entered his plea of not guilty of said offense charged in said indictment, and
thereafter a jury was regularly impaneled, and the trial of said issue was had on the - day
of June, 1891. Said jury impaneled as aforesaid returned a verdict of guilty of the offense
charged in the indictment and as therein charged, and, whereas, the judgment of said court
was regularly pronounced upon defendant, and a judgment of imprisonment was given, and
the said defendant desiring to appeal said cause to the supreme court of the state of Nevada,
and an order having been heretofore made admitting said defendant to bail in the sum of
$3,000: Therefore, know all men by these presents, that we, Charles Murphy, defendant
above named as principal, and John Chiatovich and W. A. Ingalls as sureties, are jointly,
severally and firmly held to the state of Nevada, in the penal sum of $3,000. Sealed with our
own seals and dated this 1st day of July, 1891. The condition of the above obligation is such
that, whereas, the said defendant and principal herein has been indicted, convicted and the
judgment of imprisonment given as aforesaid, and said defendant is about to appeal said
cause as aforesaid, that the said defendant will surrender himself in execution of the judgment
so as aforesaid entered upon its being affirmed, modified, or upon appeal being dismissed,
and that defendant herein and principal will in all respects abide the order and judgment of
the appellate court upon the appeal. Charles Murphy. In the sum of $3,000: John Chiatovich
(Seal). In the sum of $3,000: W. A. Ingalls (Seal). [Here follows the qualifications of the
sureties.] Endorsed: (after the entitlement of the court and cause) Bail Bond on Appeal.
Approved this 3d day of July, 1891, and filed as a record of said court and cause. Richard
Rising, district judge, presiding.
The additional facts appear in the opinion.
M. A. Murphy, Reddy, Campbell & Metson, for Appellants:
I. This action, being founded on a liability created by statute, is a statutory proceeding,
and the plaintiff wishing to avail itself of the statutory privilege, or right given by
particular facts, it must show the facts; those facts which the statute requires as the
foundation of the right must be stated in the complaint.
statute, is a statutory proceeding, and the plaintiff wishing to avail itself of the statutory
privilege, or right given by particular facts, it must show the facts; those facts which the
statute requires as the foundation of the right must be stated in the complaint. (Rhoda v.
Alameda Co., 52 Cal. 352; Dye v. Dye, 11 Cal. 168.)
II. The court erred in overruling the demurrer to the complaint. The complaint alleges that
the defendant, Charles Murphy, was found guilty of selling whisky to an Indian, and upon
such conviction was sentenced to two years in the state prison. The plaintiff cannot prevail
in this action, by reason of the fact that there is no such offense known to the state of Nevada
as that of selling whisky to an Indian. The crime intended to be charged is to be found on
page 37, Statutes of 1887, and the word whisky is not mentioned in the act.
III. The complaint must allege, and the recognizance must state, the offense for which the
accused is held. We do not claim that either one must state the circumstances under which the
offense was committed, or need it state all the facts necessary to constitute the offense, but it
must describe the charge accurately and with reasonable certainty; the mere words selling
whisky to an Indian is not the statement of a cause of action, or the designation of any
offense known to our laws. (Hunt v. State, 34 S. W. 750; Couch v. State, 34 S. W. 942;
Draughan v. State, 35 S. W. 667; Shoomaker v. State, 35 S. W. 969; Lech v. State, 34 S. W.
124; Whitehead v. State, 34 S. W. 115; State v. Jones, 3 La. Ann. 15; Foster et al. v. State, 27
Tex. 336; Baixey v. State, 30 S. W. 358; Loven v. State, 30 S. W. 358; West v.
Commonwealth, 3 J. J. Marshall's Rep. 641.)
IV. The recognizance or complaint does not state any public offense for which Murphy
could be legally tried and convicted, and the recognizance is therefore void. (Com. v.
Daggett, 16 Mass. 446; Nicholson v. State, 2 Ga. 363; Waters et al. v. People, 35 Pac. 56;
People v. Sloper, 1 Idaho, 158.)
V. The recognizance does not conform to sections 4384 or 4391, Gen. Stats., or is it a
substantial compliance with said sections. It has never been filed or become a record in said
cause or court. The mere indorsement on the recognizance by the judge, of the words
"approved this Sth day of July, 1S91, and filed as a record of said court and cause,"
without the signature of the clerk of the court, does not make a record of the court, and
the signature of the judge is merely evidence of the fact that the recognizance has been
approved by him.
by the judge, of the words approved this 8th day of July, 1891, and filed as a record of said
court and cause, without the signature of the clerk of the court, does not make a record of the
court, and the signature of the judge is merely evidence of the fact that the recognizance has
been approved by him. A recognizance derives its validity and effect from the fact that it is a
judicial record, must be filed or recorded; it then becomes an obligation of record. (People v.
Kane, 4 Denio, 535.)
VI. It is also defective in not mentioning any court, time or place for Murphy to appear
and deliver himself to the custody of the court or officer thereof. (Williams et al. v. State, 12
Tex. 169; State v. Stephens, 2 Swan. (Tenn.) 308; State v. The Meltons, Busbee's N. C. 426;
State v. Houston, 74 N. C. 174; Wilson v. State, 7 Tex. 38.)
VII. Neither the court or any officer thereof was authorized to take bail at the time, or in
the manner of its taking, by reason of the fact that the statute in no instance provides for the
taking of bail after conviction and before an appeal is taken.
VIII. The recognizance under consideration was taken without authority of law. The
judgment was not arrested or a new trial granted. Judgment had been pronounced, and the
court had no power to stay the execution of the judgment until after the appeal had been
taken. No notice of appeal had ever been served on the clerk of the court or the district
attorney, and it was the duty of the district attorney to have called the attention of the judge to
the fact that no appeal had been taken. The recognizance was therefore taken when the court
had no authority to act; and when taken by the judge or court without jurisdiction, or by any
officer without authority, it is utterly void, and no subsequent act of the court or officer can
validate it. (State v. Clark et al., 15 Ohio, 595; Powell v. State, 15 Ohio, 580; Deer Lodge
County v. At, 3 Mont. 171; State v. Winnenger, 81 Ind. 53; Griffin v. State, 48 Ind. 258;
Williams v. Shelby, 2 Or. 144; Dickinson et al. v. State, 29 N. W. Rep. 184; Bridge v. Ford, 4
Mass. 641; Com. v. Loveridge, 11 Mass. 336; People v. Koeber, 7 Hill. 39; Solomon v.
People, 15 Ill. 291; Gachenheimer v. State, 28 Ind. 91; Blackman v. State, 12 Ind. 556.)
IX. To be valid a recognizance must be authorized, and must be taken in the mode
prescribed by law. If a justice of the peace, judge or court assumes, without jurisdiction, to
admit a prisoner to bail, or if, though authorized to admit to bail, he exceeds his powers, or
fails to comply with the requirements of law, the bond or recognizance is void, and neither
the accused or sureties are liable thereon. It has no force or effect whatever. (Com. v.
Loveridge, 11 Mass. 336; State v. McCoy, 57 Tenn. 111; Com. v. Fisher, 2 Duvall's Ky. 376;
Dickenson v. State, 20 Neb. 72; State v. Kruise, 32 N. J. Law, 313; Bramham v. Com., 2
Bush. Ky. 3; State v. Nelson, 28 Mo. 13; Copper v. State, 23 Ark. 278; State v. Berry, 8
Greenl. Me. 179; Powell v. State, 15 Ohio, 579; Solomon v. State, 15 Ill. 291; Williams v.
Shelby, 2 Or. 144.)
X. It is essential to the breach of the condition upon which the forfeiture is to arise that the
party who is recognized to appear should be solemnly called before his default is entered, at
the time and place, when and where he was bound to appear, and it must appear upon the
record of the court that he was called and failed to answer; and it must be plead and set forth
in the complaint. It is not sufficient to aver and prove, aliunde, that the cognizor had in fact
absconded, and did not intend to appear, and could not appear if he had been called; such
evidence is not admissible to establish the fact of calling; it must be established by the record.
(Dillingham v. U. S., 2 Wash. 427; State v. Chesley, 4 N. H. 363; Park v. State, 4 Ga. 329;
Brown v. People, 24 Ill. App. 74; U. S. v. Rundlett, 2 Curtis R. 45; Bicknell's Crim. Prac. 63;
Urton v. State, 37 Ind. 339; Grigsly v. State, 3 Yerger's R. Tenn. 280; 1 Chitty, Crim. Law,
106; Lingley v. State, 1 Blatchf. 559; White v. State, 5 Yerger's R. Tenn. 183; Com. v.
Downey, 9 Mass. 520.)
XI. This action cannot be maintained by plaintiff by reason of the fact that it is barred by
the statute of limitations (Gen. Stats. 3644, 3648). The fourth paragraph of the fourth
subdivision of section 3644 reads as follows: An action upon a statute for a forfeiture or
penalty to the state. (Johnson v. Eskins, 9 Tex. 1; Williams v. Shelby, 2 Or. 145; County
Commissioners v. Slyck et al., 52 Kan. 622; Commissioners v. Pogg, 31 Kan. 767; Roe v.
Commissioners, 40 Pac.
Commissioners v. Pogg, 31 Kan. 767; Roe v. Commissioners, 40 Pac. 1082.)
Geo. S. Green, District Attorney, and James R. Judge, Attorney-General, for Respondent:
I. A judgment of a court of competent jurisdiction, until reversed or in some manner set
aside and annulled, cannot be attacked collaterally by evidence tending to show that it was
irregularly or improperly obtained, and especially is this true as to strangers to the particular
action or proceeding in which the judgment was rendered. (Atkinson v. Allen, 12 Vt. 619;
Eureka Iron Works v. Bresnahan, 32 N. W. Rep. 834; Vose v. Morton, 50 Am. Dec. 750;
Rollins v. Henry, 78 N. C. 342.)
II. Appellants contend that the judgment from which the appeal herein is taken is against
law, for the reason that the cause of action is barred by the statute of limitations of the state of
Nevada. We are unable to agree with counsel on this point. Section 3644, Gen. Stats.,
provides: Actions, other than those for the recovery of real property, can only be commenced
as follows: Within six years: FirstAn action upon a judgment or decree of any court of the
United States, or of any state or territory of the United States. SecondAn action upon a
contract, obligation or liability founded upon an instrument in writing, except those
mentioned in the preceding section. Clearly the bond here sued on is an obligation and
designated in the subdivision of section 3644 above quoted, entered into by appellants with
the state of Nevada, for the payment to it of the amount therein named, to wit: $3,000 in case
the conditions therein provided to be performed on the part of the principal Murphy are not
complied with, and being so, the judgment of the lower court is in all respects correct. (Placer
Co. v. Dickinson, 45 Cal. 12; Clark v. Smith et al., 66 Cal. 645.)
The respondent recovered a judgment against the appellants, Chiatovich and Ingalls, for
$3,000, upon a forfeited recognizance, on the 21st day of December, 1896, in the district
court of the first judicial district, state of Nevada, in and for Esmeralda county.
and for Esmeralda county. From that judgment an appeal has been taken. A number of errors
have been assigned, based upon the rulings of the lower court, nearly all of which involve the
construction of the criminal practice act, relating to the taking and forfeiture of bail
thereunder.
The complaint avers that one Charles Murphy was tried and convicted of the crime of
selling whisky to an Indian, in said district court, on the 23d day of June, 1891, and a
judgment of imprisonment in the state prison for a term of two years was rendered against
him therefor; that thereupon the said Murphy, expressing his intention to appeal from said
judgment, moved the court for a stay of execution thereof and to admit him to bail; that the
court granted a stay of execution of the said judgment for ten days, and ordered that he be
admitted to bail in the sum of $3,000; that on the 3d day of July, 1891, the appellants made
and delivered, and caused the same to be filed in said district court, the recognizance sued on,
whereupon the said Murphy was released from custody; that at no time had the said Murphy
obtained an order on appeal, or otherwise in any manner affecting said judgment; that the said
Murphy had not surrendered himself to the custody of the said court or the officers thereof;
that on the 7th day of December, 1891, said court had duly made and entered an order
declaring said bail forfeited, and that the same had not been paid.
A copy of the recognizance is attached to the complaint and made a part thereof, and
recites the trial and conviction of said Murphy of the crime of selling whisky to an Indian,
and the judgment of imprisonment therefor; that the said Murphy had, before the making
thereof, been ordered admitted to bail. It is conditioned that, as the said defendant is about to
appeal said cause, he will surrender himself in execution of the judgment, upon its being
affirmed, modified, or upon appeal being dismissed, and that he will in all respects abide the
order and judgment of the appellate court. The recognizance was, in part, endorsed;
Approved this 3d day of July, 1891, and filed as a record of said court and cause. Richard
Rising, district judge, presiding.
The errors assigned, which will be considered by this court, arise from the rulings of the
district court on the demurrers to the complaint and answer.
arise from the rulings of the district court on the demurrers to the complaint and answer.
Appellants contend that the complaint shows that Murphy was indicted, tried and
convicted of an offense unknown to the laws of this statethat the designation of the offense
in the complaint and recognizance as selling whisky to an Indian is not a statement of a
cause of action or a designation of any offense punishable under our laws, therefore no cause
of action exists or is averred and the recognizance is void. We cannot so hold.
Under the provisions of a statute of this state, in force at the time of the trial and
conviction of the defendant, it was an offense to sell, barter, give, or in any manner dispose
of any spirituous or malt liquors, wine or cider of any description to an Indian within this
state. (Stats. 1887, 37.) By direct terms it was an offense to sell spirituous liquor to an
Indian. It is well settled that courts will take judicial notice of the meaning of words which,
from continuous use, have acquired a definite signification generally, if not universally,
known. (Alder v. State, 55 Ala. 16; Watson v. State, 55 Ala. 158; Schlicht v. State, 56 Ind.
173.) The courts judicially know that whisky is a spirituous liquor. Section 504, criminal
practice act (Gen. Stats. 4384), gives substantially the form of recognizance required, and this
court, in State v. Birchim, discussing the same question, say that section 4968 of the laws of
Iowa contains a form for recognizances similar to our section 504. It was held in the State v.
Marshall, 21 Iowa, 143, where the principal was held to answer upon a charge of seduction,
that the use of the word seduction' in a bail bond was a sufficient compliance with the
requirement of the statute to state briefly the nature of the offense.' The word nature' is
defined by Webster as meaning sort, kind, character or species,' and we think this is the
sense in which it is here used. (State v. Birchim, 9 Nev. 100.)
In the case at bar, the requirements of the statute are sufficiently complied with in briefly
stating the nature of the offense as selling whisky to an Indian, and the averments of the
complaint to the same effect are also sufficient.
It is further contended that the complaint shows that the right of action is barred by the
statute of limitations, under the provisions of the clause therein requiring actions upon a
statute for a forfeiture or penalty to the state to be commenced within two years after the
right of action has accrued.
right of action is barred by the statute of limitations, under the provisions of the clause therein
requiring actions upon a statute for a forfeiture or penalty to the state to be commenced within
two years after the right of action has accrued. Counsel for appellants have exhaustively and
ably argued this question, but we cannot so hold. This is an action upon an obligation
founded upon an instrument in writing, and the right of action thereon is barred by the
six-year clause of our statute. (Gen. Stats. 3644.)
It is true that the obligation is authorized by statute, that it provides a penalty for its
violation, and the right of action arises only upon a forfeiture thereof, yet without and apart
from the written obligation, there is and could be no liability whatever on the part of the
appellants. Their liability is founded upon and fixed by the obligation and, as upon other
obligations, the right of the state to sue arises under a breach thereof. Counsel for the
appellants cite Ryus v. Gruble, 31 Kan. 767, and Commissioners v. Van Slyck, 52 Kan. 625,
in support of their contention.
These causes involve the same question, and a careful examination clearly shows wherein
they are distinguishable from the case at bar. The case of Ryus v. Gruble, supra, was an
action upon a sheriff's bond. The alleged breach of duty, under which the sureties upon his
bond became liable, was the levy of a void execution upon certain property, and making a
sale thereunder. Under the Kansas statute action for this wrong was barred after two years,
but it was there contended that the action being upon the sheriff's bond, it was not barred until
five years had elapsed. The supreme court of Kansas, in passing upon this question, very
correctly held that the wrongs committed by the sheriff in making the levy and sale were the
real and substantial foundation of the plaintiff's cause of action, and that the bond was only a
collateral security for the enforcement of such cause of action. The bond did not give the
cause of action; the wrongs did. That court announces the same rule in Commissioners v. Van
Slyck, supra.
In the case at bar, the real and substantial foundation of the respondent's cause of action is
the written obligation, and without that obligation no cause of action exists, and could not
be maintained against the appellants.
and without that obligation no cause of action exists, and could not be maintained against the
appellants.
It is further contended, on behalf of appellants, that the complaint is not sufficient and the
recognizance is void for the reason that no time, place or court is named therein, in which the
defendant is required to appear.
This contention is not tenable. Section 502 of the criminal practice act provides that after
conviction, and upon an appeal, the defendant may be admitted to bail. * * * SecondIf
judgment of imprisonment have been given, that he will surrender himself in execution of the
judgment, upon its being affirmed or modified, or upon the appeal being dismissed. (Gen.
Stats. 4382.) Section 515 of the same act provides that the further conditions of the
recognizance shall be to the effect that the defendant will, in all respects, abide the order and
judgment of the appellate court upon the appeal. (Gen. Stats. 4395.) The recognizance is
conditioned in nearly the exact language of the law, and the law designates the time, place
and court in which the defendant must appear and surrender himself in execution of the
judgment. See, also, sections 4368 to 4374 inclusive, Gen. Stats.; People v. Carpenter, 7 Cal.
402.
It is also argued that the recognizance is void for the reason that it was never filed or
became a record of said cause or court. The complaint avers that it was filed. This averment
was sufficient. (U. S. v. Eldredge, 5 Utah, 161.) It was made a record by the order of the
court. (Trans., p. 28.)
Two important questions are presented by the ruling of the district court whereby the
respondent's demurrer to the answer to the second amended complaint was sustained. The
answer, among other things, alleges that, at the time the order was made staying the execution
of the judgment, no appeal had been taken from the judgment, and no appeal therefrom was
pending; that at the time said recognizance was delivered, approved and accepted, no appeal
was pending from said judgment, and no appeal therefrom has ever been taken. It further
alleges that the defendant was never notified or requested to appear in said district court, on
the 7th day of December, 1891, or at any other time; that he was never called at the court
house door, or at any other place, to appear in said court.
place, to appear in said court. It also affirmatively alleges that the only record made of the
forfeiture of the recognizance was as follows: Now, on motion of the district attorney, it is
ordered that the bonds of Charles Murphy be and they are hereby declared forfeited.
It is contended on behalf of the appellants that, before the recognizance could legally be
declared forfeited, the defendant should have been called at the court house door, and the
record of the proceedings should so show. This position cannot be sustained. Section 523 of
the criminal practice act provides when and in what manner such forfeitures shall be taken. It
provides that if, without sufficient excuse, the defendant neglect to appear for arraignment, or
for trial or judgment, or upon any other occasion, when his presence in court may be lawfully
required, or to surrender himself in execution of the judgment, the court shall direct the fact
to be entered upon its minutes, and the recognizance shall therefore be declared forfeited.
(Gen. Stats. 4403.)
This provision of the statute is mandatory. It does not require that the record show that the
defendant was called, neither is it necessary thereunder that the defendant should be called.
If the averments of the answer are true, and they must be so considered for the purpose of
the demurrer, then it was error for the district court to hold the same insufficient, as it
affirmatively is shown thereby that the only record of forfeiture made by the district court is
the one above set out, and that record is fatally defective in not showing the fact that the
defendant neglected to appear upon some one of the occasions designated in said section 523.
It is further contended, on the part of the appellants, that the averments of the said answer
that, at the time of the entry of the order staying the execution of the said judgment, no appeal
therefrom had been taken or was pending, and that, at the time of the delivery, acceptance and
approval of the recognizance, no appeal had been taken from said judgment or was pending
therefrom, and that no appeal had ever been taken from the same, were a complete defense to
the action, and that it was error of the district court in holding otherwise.
In brief, the contention is, that the trial court had no authority to make an order staying the
execution of a judgment of imprisonment and no authority to release or order the release of a
defendant, under recognizance, or otherwise, after judgment of imprisonment had been
rendered against him, except after an appeal therefrom had been taken, and, therefore, any
recognizance given for that purpose and at such time is void.
This contention also involves a construction of our criminal practice act and must be
sustained.
Section 451 of the criminal practice act provides that, when a judgment has been
pronounced, a certified copy of the entry thereof in the minutes shall be forthwith furnished
the officer whose duty it is to execute the judgment, and no other warrant or authority is
necessary to justify or require the execution thereof, except when judgment of death is
rendered. (Gen. Stats. 4331.)
Section 453 of the same act expressly provides that, if the judgment be imprisonment, the
defendant shall forthwith be committed to the custody of the proper officer, and by him
detained until the judgment be complied with. (Gen. Stats. 4333.) We are unable to find any
other provisions of the law bearing directly upon the time and manner of enforcing the
judgment of the district court in cases of this character, or in any manner modifying the same,
excepting such provisions as direct the enforcement of such judgment by order of the
appellate court on appeal. No discretion is reposed in the district court as to the time its
judgment shall become operative and enforcible, and any order thereof in contravention of the
direct provisions of the statute above cited is without authority and void, and the release of
the defendant, with or without bond, pursuant to such order is unwarranted, and any bond,
recognizance or bail given for such release for the purpose of such order is without authority
and void.
If the recognizance was given for the purpose of appeal, as it evidently was, then, under
the averments of the answer, would it be void? We must so hold.
Briefly, the provisions of the criminal practice act permit an appeal by the defendant in a
criminal action to the supreme court from a final judgment of the district court within three
months after the judgment is rendered, by the service of notice on the clerk of the court
and the district attorney stating, in effect, that the appellant appeals therefrom.
within three months after the judgment is rendered, by the service of notice on the clerk of the
court and the district attorney stating, in effect, that the appellant appeals therefrom. (Gen.
Stats. 43494356.)
It is also provided that, upon the appeal being taken, the clerk with whom the notice of
appeal is filed must, within ten days thereafter, without charge, prepare and transmit to the
clerk of the supreme court a copy of such notice and of the record of such action. (Stats. 1889,
24.)
Section 479 of the criminal practice act provides that no appeal from a judgment of
conviction, unless it be one imposing a fine only, shall stay the execution of the judgment, but
the defendant, if in custody, shall remain in custody, unless admitted to bail as prescribed in
section 502. (Gen. Stats. 4359.)
Section 500 of the same act provides that, after conviction of an offense not punishable
with death, a defendant who has appealed may be admitted to bail. (Gen. Stats. 4380.)
It is very clear, from these statutes, that an appeal from a judgment of imprisonment would
not operate as a stay of the execution thereof, and the defendant, if in custody, must so
continue unless admitted to bail.
In the case at bar, the complaint avers that the defendant was released from custody upon
the execution and acceptance of the bail bond. The court had no right, no authority and no
power to order a stay of execution of the judgment of imprisonment for any length of time;
nor had it any authority to release the defendant from custody, under bail, until he had
appealed.
An appeal is taken by the service of the notice required in section 4354 above cited.
(Lambert v. Moore, 1 Nev. 344.)
It is well settled that bail, taken in criminal action, to be valid, must be authorized by law.
(Dickinson v. State, 20 Neb. 72; Powell v. State, 15 Ohio, 579; State v. Clarke, 15 Ohio 595;
Williams v. Shelby, 2 Or. 144; State v. Winnenger, 81 Ind. 53; Harris v. Simpson, 14 Am.
Dec. 101.)
For these reasons the court erred in sustaining respondent's demurrer to the appellants'
answer to the amended complaint. The judgment will be reversed, and cause remanded for
further proceedings in accordance with this opinion.
____________
23 Nev. 404, 404 (1897) Peers v. Reed
[No. 1497.]
J. V. PEERS, as Administrator of the Estate of Felix Monet, Deceased, Respondent, v. T. A.
REED, Appellant.
AppealIn Absence of Statement or Bill of Exceptions, Judgment Roll Only Considered.When an appeal is
taken from the judgment alone, and there is no statement or bill of exceptions in the record, the appellate
court can only consider the record constituting the judgment roll.
IdemJudgment RollFindings of Fact and Conclusions of Law When Not Part of Record.Findings of fact
and conclusions of law are no part of the judgment roll, and are no part of the record on appeal when not
made so by a statement of the case or bill of exceptions.
IdemEffect of Act of 1895.Matters or questions that could be properly presented to the supreme court on
appeal before the act of 1895 (Stats. 1895, p. 58) only by a statement of the case on motion for a new trial,
or by a statement of the case on appeal, or by bill of exceptions, can now be presented alone in the same
manner, with the sole exception that maps and exhibits, under the conditions named in the statute, may be
sent separately.
IdemAllegations of Complaint Sufficient to Support JudgmentPresumption.Where an appeal is taken by
the defendant from the judgment alone and no statement on appeal or bill of exceptions is filed, if the
complaint contains a state of facts sufficient to warrant the judgment rendered, it will be presumed that the
trial court found these facts.
TaxationAssessmentSeparate and Distinct Parcels of Land.Separate and distinct parcels of land must be
valued and assessed separately or the assessment will be void.
District Judge:
Action by J. V. Peers, as administrator of the estate of Felix Monet, deceased, against T.
A. Reed. From a judgment for plaintiff, defendant appeals. Affirmed.
T. V. Julien, for Appellant:
I. There is no law by which a taxpayer can redeem a portion of his property and not the
whole; he is bound for the whole tax lawfully assessed to him. (Wright v. Cradlebaugh, 3
Nev. 348.)
II. There is no law in this state requiring a separate valuation to be given to property assessed
to the same owner, or requiring the assessor to designate on the tax roll lands held as
"owned in fee" and those held by right of possession.
23 Nev. 404, 405 (1897) Peers v. Reed
requiring the assessor to designate on the tax roll lands held as owned in fee and those held
by right of possession.
III. The taxpayer being bound to contribute his pro rata share of the expenses of government,
no irregularity on the part of any one or all of the revenue officers will relieve him from that
obligation. (10 Nev. 346.)
Thos. E. Haydon, for Respondent:
I. The findings of fact and conclusions of law of the judge of the court is no part of the
judgment roll in any case. That they cannot be considered on an appeal unless they are
embodied in a statement on new trial or on appeal, is too well settled in the state to admit of
an argument. (2 Nev. 133; Corbett v. Job, 5 Nev. 205; Imperial M. Co. v. Barstow, 5 Nev.
253; Bowker v. Goodwin, 7 Nev. 137; Alderson v. Gilmore, 13 Nev. 85; Hauson v.
Chatovich, 13 Nev. 396; Nesbitt v. Chisholm, 16 Nev. 40; Simpson v. Ogg, 18 Nev. 30; Beck
v. Truckee Lodge, 18 Nev. 246; Boyd v. Anderson, 16 Nev. 349; Jones v. Adams, 19 Nev. 80;
Poujade v. Ryan, 21 Nev. 449.)
II. When nothing is shown to the contrary, the court will presume that the judgment is
sustained by the findings and the findings justified by the evidence. (Nesbitt v. Chisholm, 16
Nev. 39; Kelly v. Kelly, 18 Nev. 59.)
III. The court below decided correctly in this case that several different and separate tracts of
land in three different sections, none of which, except ten or fifteen acres, had ever been
cultivated or enclosed by a fence or made one undivided whole farm, all assessed in one lump
sum or assessment. It is a well-established principle of law that land assessed for taxes must
be so described that it may be identified. How can it be identified except by U. S. survey
division, or by metes and bounds? (State v. C. P. R. R. Co., 21 Nev. 99.)
IV. The provisions in our statute (Gen. Stats. 1096; Stats. 1891, sec. 33, p. 146) passed after
the decision of State v. C. P. R. R. Co., are conclusive that any taxpayer can pay on the least
subdivision of his land, and are conclusive that, to make a valid assessment, the assessor must
place a separate tax on the least subdivision. If he does not, his assessment is void, for how
can a taxpayer pay on the least subdivision or redeem from a sale of it, if no tax is placed or
value placed on such least subdivision?
23 Nev. 404, 406 (1897) Peers v. Reed
subdivision or redeem from a sale of it, if no tax is placed or value placed on such least
subdivision?
The plaintiff recovered judgment in the trial court against the defendant, and the defendant
appeals from the judgment alone. There is no statement of the case and no bill of exceptions
in the record. There is a paper purporting to be the findings of fact and conclusions of law by
the court among the papers certified to this court. Counsel for respondent moved this court to
strike from the record and to disregard said paper upon the ground that it is not embraced in
any statement of the case or bill of exceptions, and cannot, for that reason, be considered on
this appeal. The motion must be granted. When an appeal is taken from the judgment alone,
and there is no statement or bill of exceptions in the record, the rule that the appellate court
can only consider the record constituting the judgment roll is too well settled to need citation
of authorities. The findings are no part of the judgment roll. (Gen. Stats. 3227.) And they are
no part of the record on appeal when not made so by a statement of the case or bill of
exceptions. There seems to be some misconception as to the effect of the act entitled An act
regulating appeals to the supreme court. (Stats. 1895, 58.)
The evident object of this act was simply to save litigants the labor and expense of
transcribing the record on appeal and the expense of printing the transcript. The law as it
stood prior to the act of 1895 required in all cases of appeal that a transcript of the record on
appeal should be certified to the supreme court, and by a rule of this court all such transcripts
were required to be printed. The General Statutes provide what the record shall consist of in
the several appealable cases. The statute of 1895 provides that the original papers in the
district courtthat is, papers constituting the record on appeal, including documentary
evidence, maps and exhibitsmay be certified to this court instead of certifying a transcript
thereof, or the appellant may furnish a transcript of a portion of the record on appeal and have
the original of the remaining portion of the record certified to this court, otherwise it does not
affect the provisions of the General Statutes except it provides "that where it would not be
convenient to attach maps or exhibits to the other papers, they may be sent separately,
properly identified and certified."
23 Nev. 404, 407 (1897) Peers v. Reed
General Statutes except it provides that where it would not be convenient to attach maps or
exhibits to the other papers, they may be sent separately, properly identified and certified.
Matters or questions that could be properly presented to the supreme court on appeal
before the act of 1895 only by a statement of the case on motion for new trial, or by a
statement of the case on appeal, or by bill of exceptions, can now be presented alone in the
same manner, with the sole exception that maps and exhibits, under the conditions named,
may be sent separately.
The contention of counsel for appellant, is that the judgment is not sustained by the
admitted facts and findings of the court and is contrary to law.
Although the alleged findings must be disregarded because they are not properly before the
court, the question of the correctness of the judgment may be determined from the judgment
roll.
If the complaint contains a state of facts sufficient to warrant the judgment rendered, we
must presume that the trial court found these facts.
There is, however, no dispute as to the facts. The facts alleged and admitted material to be
considered in determining the validity of the judgment, are, in brief, that, in the year 1894, the
assessor of Washoe county, not finding said Felix Monet, made no demand upon him for a
statement of his taxable property, and received none, but listed and assessed certain described
lands to him as owner thereof; that the lands as described on the assessment roll, and in fact,
were separate and distinct pieces of land; that the assessor valued and assessed said lands as a
whole, as one body or tract of land; that the tax amounted to $5 50; that said tax was not paid;
was entered on the delinquent list and all of said lands were sold by the treasurer of said
county to the defendant at the delinquent tax sale in 1895 for the taxes, penalties and costs,
amounting to $10 05; that the defendant received from the county treasurer a certificate of
sale and deed of conveyance of said lands and had the same recorded in the office of the
county recorder of said county.
Judgment: The judgment of the court below in effect annuls said assessment, sale,
certificate of sale and deed of conveyance; adjudged the tax title to said lands claimed by
the defendant to be null and void; decrees that the plaintiff, as the administrator of the
estate of Felix Monet, deceased, is entitled to the exclusive possession and control of said
lands and perpetually enjoins the defendant, his heirs and assigns, from claiming or
asserting any right, title or interest in or to said lands under or by virtue of said deed or
tax title.
23 Nev. 404, 408 (1897) Peers v. Reed
annuls said assessment, sale, certificate of sale and deed of conveyance; adjudged the tax title
to said lands claimed by the defendant to be null and void; decrees that the plaintiff, as the
administrator of the estate of Felix Monet, deceased, is entitled to the exclusive possession
and control of said lands and perpetually enjoins the defendant, his heirs and assigns, from
claiming or asserting any right, title or interest in or to said lands under or by virtue of said
deed or tax title.
The lands, being separate and distinct parcels, should have been valued and assessed
separately; not being so valued and assessed, the assessment under the authorities is void.
In State of Nevada v. The Central Pacific Railroad Company, 21 Nev. 105, this court held
that a taxpayer can, under our statutes, pay the taxes upon some subdivisions of his property
entered upon the assessment roll, and not on all, and that it is the duty of the assessor to value
each subdivision separately. Evidently the requirement that separate and distinct pieces of
land shall be valued and assessed separately is for the benefit of the taxpayer.
In Cooley on Taxation, 280, the author says: When the two parcels are owned by the
same person, if the statute requires a separate assessment, obedience to the requirement is
essential to the validity of the proceedings. It cannot be held in any case that it is unimportant
to the taxpayer whether this requirement is complied with or not. Indeed, it is made solely for
his benefit. It would be wholly immaterial, so far as the interest of the state is concerned,
whether separate estates are or are not separately assessed. And where a requirement has for
its sole object the benefit of the taxpayer, the necessity for a compliance with it cannot be
made to depend upon the circumstances of a particular case, and the opinion of a court or jury
regarding the importance of obedience to it in that instance. That method of construing
statutes would abolish all certainty.
In People v. Hollister, 47 Cal. 408, the court held that, when several parcels of land are
assessed to the same person, they must be separately valued.
In 21 Nev., above, the court said: It has been decided that adjoining town lots, owned by
the same person, may be assessed as one tract; but never, under any statute similar to
ours, that entirely separate and distinct pieces of real estate and personalty can be
thrown together in one general statement and valued as one piece of property.
23 Nev. 404, 409 (1897) Peers v. Reed
assessed as one tract; but never, under any statute similar to ours, that entirely separate and
distinct pieces of real estate and personalty can be thrown together in one general statement
and valued as one piece of property. Such an assessment is void.
The judgment appealed from is affirmed.
____________
23 Nev. 409, 409 (1897) Sweeney v. Hjul
[No. 1493.]
W. H. SWEENEY, Respondent, v. P. H. HJUL,
Appellant.
StatementObjections to, When WaivedOral Argument.When counsel appear and orally argue a case upon
its merits, and afterwards, by leave of court, file a brief and therein rely upon objections to the statement:
Held, that the oral argument upon the merits amounted to a waiver of the objections to the statement.
Reopening of CaseDiscretion of Court.After a case has been closed and submitted, it is in the discretion of
the court to reopen the same and permit additional evidence to be taken or not, and, if such discretion is not
abused, there is no error.
IdemEvidence Reviewed and Held Insufficient.After the case had been closed and submitted appellant
moved the court for leave to examine and count the ballots in two certain precincts and to compare them
with the poll books used in said precincts. No showing was made that any fraud had been committed upon
the part of any one in said precincts. It further appeared that, during the trial of this action, the registry lists
of these precincts had not been offered or received in evidence. The ballots from these precincts had all
been presented to the court and carefully examined by the court and counsel. From the reading of counsel's
motion, the only purpose thereof was to ascertain whether evidence might exist favorable to appellant:
Held, that a stronger showing must be made before it can be held error in the trial court in refusing to
reopen a case after the same has been submitted and the court has announced its decision.
Illegal BallotsDistinguishing Marks.The ballots of all the voting precincts of Eureka county contained the
names of the township officers to be elected in Palisade and Eureka townships: Held, that a ballot,
containing a cross placed opposite the name of a candidate for one of said township offices, cast in a
precinct where the said candidate was not to be voted for, was illegal and should be rejected, the said cross
constituting a distinguishing mark.
BallotsMarks Made by Accident, Effect Of.A ballot containing a mark which was clearly made
accidentally, and not deliberately, will not be rejected as containing a distinguishing mark.
IdemDistinguishing MarksExamples Of.The following marks upon ballots, held to be distinguishing
marks, rendering the ballot illegal: A cross deliberately made by the voter upon the ballot in the blank
space for presidential electors under the words Vote for three, and not opposite the name of any
candidate; crosses after the names of two of the candidates for presidential electors, placed
within a square made deliberately by the voter; crosses made with a purple, instead
of a black, lead pencil; a ballot containing a cross made with a lead pencil near the
center and top thereof and immediately under the cross printed thereon, another
cross with lead pencil in the blank space beneath the name of a candidate, another
cross with lead pencil near the middle of the said ticket and immediately following
the words "For members of the assembly"; a ballot disfigured by a partially erased
cross after the name of a candidate; a cross opposite the name of a candidate which
the voter has deliberately and intentionally attempted to scratch out and obliterate
with a pencil, thereby disfiguring the ballot; a cross made with a pencil in the vacant
space below and to the right of the name of a candidate for office; an erasure of a
cross opposite the name of a candidate for office and a perpendicular mark with
horizontal marks crossing the same at top and bottom opposite the name of another
candidate; three straight lines crossing each other so as to distinctly make a star
opposite the name of a candidate, the color, direction, course and uniformity of which
said lines composing the star, making it clearly apparent that the person voting the
ballot deliberately and intentionally made them; a horizontal line made opposite the
name of a candidate for office and two crosses made in the square opposite the name
of another candidate; a cross made with a lead pencil in the vacant space near the
center of the first column and the left-hand side of the ticket between the words "For
presidential electors" and the words "Vote for three"; a cross in the vacant space
beneath the name of a candidate; crosses made beneath or above the names of
candidates for president and vice-president; marks of impossible description after the
name of a candidate; marks opposite the name of a candidate that more nearly
resemble a spider than anything else; crosses made with a pencil indiscriminately
placed in various parts of the ballot; a perpendicular mark made with a lead pencil
opposite the name of a candidate; two crosses opposite the name of a candidate; a
cross not opposite the name of any candidate.
two of the candidates for presidential electors, placed within a square made deliberately by the voter;
crosses made with a purple, instead of a black, lead pencil; a ballot containing a cross made with a lead
pencil near the center and top thereof and immediately under the cross printed thereon, another cross with
lead pencil in the blank space beneath the name of a candidate, another cross with lead pencil near the
middle of the said ticket and immediately following the words For members of the assembly; a ballot
disfigured by a partially erased cross after the name of a candidate; a cross opposite the name of a
candidate which the voter has deliberately and intentionally attempted to scratch out and obliterate with a
pencil, thereby disfiguring the ballot; a cross made with a pencil in the vacant space below and to the right
of the name of a candidate for office; an erasure of a cross opposite the name of a candidate for office and a
perpendicular mark with horizontal marks crossing the same at top and bottom opposite the name of
another candidate; three straight lines crossing each other so as to distinctly make a star opposite the name
of a candidate, the color, direction, course and uniformity of which said lines composing the star, making it
clearly apparent that the person voting the ballot deliberately and intentionally made them; a horizontal line
made opposite the name of a candidate for office and two crosses made in the square opposite the name of
another candidate; a cross made with a lead pencil in the vacant space near the center of the first column
and the left-hand side of the ticket between the words For presidential electors and the words Vote for
three; a cross in the vacant space beneath the name of a candidate; crosses made beneath or above the
names of candidates for president and vice-president; marks of impossible description after the name of a
candidate; marks opposite the name of a candidate that more nearly resemble a spider than anything else;
crosses made with a pencil indiscriminately placed in various parts of the ballot; a perpendicular mark
made with a lead pencil opposite the name of a candidate; two crosses opposite the name of a candidate; a
cross not opposite the name of any candidate.
IdemStrip With Number Not Torn Off, Marked Canceled.A ballot rejected in the count by the lower court
has the strip on the right-hand side thereof bearing the number attached, and written in ink on the back of
the same is the word canceled: Held, that without further explanation, which the record does not give, as
to when and by whom the word was written thereon, the appellate court cannot say the lower court erred in
refusing to count such ballot.
IdemDistinguishing MarksBallot With Stub and Number AttachedResponsibility of Voter.In a certain
precinct there were cast twenty-two ballots, to each of which there was attached the stub bearing the printed
number. The record discloses no facts, other than these, in relation to the said ballots: Held, that where a
voter blindly accepts a ballot from an election officer bearing marks that will destroy the secrecy of the
ballot, he should be held to know that fact. It will not do to cast all responsibility upon the election officers
except in those matters where the officer has the exclusive right to act, and where his acting or non-acting
would destroy the validity of the ballot.
District Judge:
Action by W. H. Sweeney against P. H. Hjul to contest the latter's election to the office of
Sheriff of Eureka county. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Thos. Wren, for Appellant:
I. The consideration of this case, so far as the legality or illegality of the ballots is
concerned, has been made very simple and plain, and easy to determine if this court adheres
to the construction adopted in the cases of Lynip v. Buckner and Dennis v. Caughlin.
II. In one respect this case presents a novel feature. Upon the evidence, oral and
documentary, it is certain that mistakes or fraud occurred in at least two precincts of the
county. In Beowawe five ballots not strung upon a string with the other ballots were returned
either in the envelope containing the ballots that were used, or the ballots that were unused, to
the office of the county clerk. Witnesses were called to prove that those ballots had been cast
at the election in that precinct, but had not been counted by the election board for contestant
on account of some supposed defects. The witnesses testified to nothing tending to identify
the ballots found in the envelope containing the ballots, but not strung with the other ballots
that had been counted, as the ones that had been voted at Beowawe, and not counted by the
election board for contestant. This testimony was given before the court counted the ballots to
which objection had been made. When the ballots were counted, it appeared upon the closest
scrutiny that two of the ballots were absolutely perfect, and, upon comparison, it appeared
that both of them had been marked by the same person. The court will find upon an
inspection of those two ballots that they are so perfect that no man not a congenital idiot
could have possibly refused to count them on account of any defect supposed or real. Counsel
for contestee, in view of these suspicious circumstances, and the further circumstance
testified to by the county clerk that the envelope containing the unused ballots had been
broken open, asked leave of the court to count the ballots and compare them with the poll
book for the purpose of ascertaining whether two ballots unused had not been abstracted
from the envelope containing the unused ballots, and either added to the ballots that had
been voted or substituted for two defective ballots that had been voted and abstracted.
unused ballots had been broken open, asked leave of the court to count the ballots and
compare them with the poll book for the purpose of ascertaining whether two ballots unused
had not been abstracted from the envelope containing the unused ballots, and either added to
the ballots that had been voted or substituted for two defective ballots that had been voted and
abstracted. Under the law it is almost impossible to commit a fraud of this character without
detection if counsel is permitted to count the ballots used and unused and compare them with
the poll book. (Gen. Stats. 1549, 1552; Stats. 1891, sec. 22, p. 45.) No efforts should be
spared by our courts in probing possible election frauds, but notwithstanding this plain duty
of the court, and the fact that days were spent in the trial of the case that should have
occupied one or two days at most, and notwithstanding the fact that our court is not overrun
with business, the court would not devote even an hour of its time to the investigation of
these suspicious circumstances with a view to reopening the case should it appear that a fraud
had been practiced.
III. It further appeared that in Eureka precinct No. 2 either the election board had made a
mistake, or the court had, in counting the vote for respondent. The court found that three
more votes had been cast in that precinct for respondent than the election board had found.
Counsel for contestee announced to the court that, upon the count of the votes of that precinct
that were not objected to by either party, he had noticed, after the count by the court, that
there was one ballot amongst those that had been counted with a cross opposite the name of
the respondent and also opposite the name of one Burdick, another candidate for sheriff, and
that probably inadvertently other votes had been counted for respondent without objections
that were equally defective, or that possibly a fraud might have been committed as in the case
of Beowawe, but the court was equally firm in its refusal to grant leave to counsel to examine
and count the ballots for the purpose of correcting a mistake or showing fraud, the only
reason given being that counsel had been admonished, when the count of the vote was
commenced, to be very careful in the conduct of the count.
IV. If, upon an examination of the ballots and a comparison with the poll book, it had
appeared that fraud had been committed or a mistake made changing the result of the
election, would it not have been the duty of the court to have reopened the case for the
purpose of correcting the mistake or permitting the introduction of evidence showing the
fraud? I think there can be but one answer to that question. It would have been the duty of the
court, and a failure to reopen the case under such circumstances would have been cause for
reversal. Why, then, is it not good cause for reversal when the court absolutely refuses to
permit counsel to examine the evidence that has been offered and admitted in the case in
connection with documentary evidence that counsel had a right to examine under the law?
V. Upon a considerable number of ballots, both for contestant and contestee, in Eureka
precinct No. 2, the voter was given a ballot with the stubs attached; when the ballot was
returned by the voter to the inspector he tore off the number on the right-hand side of the
ballot, but did not tear off the number on the stubs before depositing the ballot. These, under
the ruling in Lynip v. Buckner, should be counted.
Robt. M. Clarke, and Peter Breen, for Respondent:
I. The failure of the election officers to remove the stubs from twenty-two of the ballots
polled in Precinct No. 2 was fatal to the validity of such ballots. The stubs and numbers upon
them were distinguishing marks, and rendered the ballots capable of identification. (Stats.
1891, secs. 26, 30, p. 46.) Permitting the stubs and numbers to remain on the said ballots
destroyed the secrecy of the ballot guaranteed by the constitution. (Art. II, sec. 5, Const. Nev.;
Ritchie v. Richards, 47 Pac. Rep. 670-681; Williams v. Stein, 38 Ind. 89; People v. Pease, 27
N. Y. 45-81; Buckner v. Lynip, 22 Nev. 426.)
II. The case of Rebel Creek precinct in Buckner v. Lynip, referred to, is parallel. In that case
there was clear and uncontradicted evidence that the failure to tear off the strip containing the
number of the ballot was the result of a mistake upon the part of the election officers. In the
case of the stub ballots polled and counted in Eureka precinct No.
No. 2, there is no such evidence. (Buckner v. Lynip, 22 Nev. 426.)
III. If such ballots as those denominated stub ballots be deemed valid, the Australian ballot
law is a dead letter, the main object of the law, to-wit: secrecy, being entirely done away with.
Corruption and intimidation under such a construction must become the order of the day, and
it will be fully as easy, if not more so, to bribe the evil minded than under the old system.
IV. The court was entirely justified in refusing to reopen the case and re-examine the
ballots of Precinct No. 2, or any other precinct, as the case had been closed by both parties
and submitted for judgment, and, furthermore, the ballots were not in the same condition as
when first examined and counted, there having been the aforesaid recount of the same. After
a case has been closed and submitted, it is in the discretion of the court to permit additional
evidence or not, and if such discretion be not abused, there is no error. (Lamance v. Byrnes,
17 Nev. 197; McLeod v. Lee, 17 Nev. 103.)
V. It would have been an unpardonable injustice to respondent to permit a reopening of
the case and re-examination of the ballots under the circumstances, and more especially as
there had been a recount by the county commissioners eight or nine days previous. The
ballots could not possibly have been in the same condition, as they had been handled and
thumbed over by the commissioners and others in the meantime.
The respondent and appellant were rival candidates for the office of sheriff of Eureka
county, at the general election held therein, on the 3d day of November, 1896; the canvass of
the returns of the various election precincts made by the board of county commissioners of
said county on the 10th day of November, 1896, gave the respondent 164 votes, and the
appellant 168 votes, and an order was thereupon made by said board declaring the appellant
duly elected to the said office, and a certificate of election was issued to him as such. On the
11th day of December, 1896, the respondent commenced this action to contest the election of
appellant to said office, and in the statement or complaint alleged, as grounds therefor,
malconduct on the part of the election officers of precincts numbered 1, 2, 3, 5, 6, 10 and
11 in failing to count legal ballots cast for respondent at said election, and in counting
illegal and void ballots for the appellant.
to said office, and in the statement or complaint alleged, as grounds therefor, malconduct on
the part of the election officers of precincts numbered 1, 2, 3, 5, 6, 10 and 11 in failing to
count legal ballots cast for respondent at said election, and in counting illegal and void ballots
for the appellant. The appellant answered denying the allegations and averred malconduct on
the part of the election officers in each and all of the precincts of said county in failing to
count therein certain legal ballots cast for the appellant and counting certain illegal and void
ballots for the respondent.
Under these issues trial was commenced on the 23d day of December, 1896, before the
court without a jury. During said trial all the ballots cast at said election in the various
precincts of said county were offered in evidence, and the appellants objected to the counting
of 70 thereof for the contestant upon the ground that each of said ballots had marks and words
made and written thereon by which it could be identified. The respondent objected, during
said trial, to the admission of 67 or 68 of said ballots, for the same reasons. The cause was
then continued for further hearing, until the 11th day of January, 1897, when testimony was
offered on the part of the respondent relating to certain votes cast at Beowawe precinct.
Thereafter, the court heard the argument of the counsel upon the objections to the admission
of the ballots and, after considering the same, overruled the objections of the appellant to all
of the ballots for contestant, except 14, to which rulings exceptions were taken; the court also
overruled the objections of the respondent to the various ballots for appellant, except 13
thereof, to which rulings exceptions were taken. Thereupon the court announced that the
respondent had received 158 votes for said office, and the appellant 156 votes therefor.
The appellant then moved the court for leave to compare the number of votes cast in the
Beowawe precinct at said election, as shown by the registry list used by the inspectors and
clerks of election at said precinct with the number of ballots returned to the county assessor as
having been voted in said precinct, for the purpose of ascertaining whether more ballots were
returned than the number of voters who voted in said precinct.
Appellant further moved the court for leave to examine the ballots returned by the election
officers of Eureka precinct No. 2 as having been voted at said election, and to examine the
registry list used by the election officers of said precinct, and to count the number of voters
who voted at said election as shown by said registry list of said precinct for the purpose of
ascertaining whether a larger number of ballots were returned than voters who voted at said
precinct, and for leave to examine said ballots for the purpose of ascertaining whether any
mistake or mistakes had been made by the court in counting said ballots. Objections to said
motion were made by the respondent, and on the 16th day of January, 1897, the court
overruled said motion, to which ruling the appellant excepted.
Judgment was entered on the 21st day of January, 1897, in favor of the respondent, and
from that judgment both parties have appealed.
The contention of the respondent that the statement should not be considered by this court
for certain reasons cannot be sustained. This action was argued orally upon its merits on the
19th day of March, 1897, on which date the respondent filed a brief. No objections were
made to the statement during said argument, nor were any objections noted to the same in the
brief filed at that time. Permission was granted to respondent to file a further brief in the case,
and in that brief the objections to the statement were for the first time made. It has been held
by this court that, when counsel appear and orally argue a case upon its merits, and
afterwards, by leave of the court, file a brief and therein rely upon objections to the statement,
that the oral argument upon the merits amounts to a waiver of the objections to the statement.
(Truckee Lodge v. Wood, 14 Nev. 293.)
Appellant contends that the court erred in refusing appellant leave to examine and count the
ballots returned from Beowawe and to compare them with the poll books used in said
precinct, and also to pursue the same course with reference to ballots of Eureka precinct No.
2. The reasons urged upon the court for the granting of said motion were that it appeared in
evidence that the ballot box at Beowawe precinct was not sealed when delivered to the county
clerk of Eureka county, and the envelope containing the unused ballots returned by the
inspectors of said precinct had been partially broken open before a canvass of the returns
was made; that two of the ballots returned by the election officers of said precinct as
having been voted and not counted by said officers were perfect ballots containing no
word or mark that could possibly render them void; that it appeared from the returns of
Eureka precinct No.
county, and the envelope containing the unused ballots returned by the inspectors of said
precinct had been partially broken open before a canvass of the returns was made; that two of
the ballots returned by the election officers of said precinct as having been voted and not
counted by said officers were perfect ballots containing no word or mark that could possibly
render them void; that it appeared from the returns of Eureka precinct No. 2 that 59 votes had
been cast for respondent, and that, from the count made by the court of the votes of said
precinct, it appeared that 62 votes had been cast for said respondent. It further appears from
the testimony of Charles A. Jones and J. H. Murphy, two of the election officers of Beowawe
precinct, that there were five ballots regularly voted and polled in said precinct which the
inspectors had refused to count for some supposed defect; that these ballots were returned
with the other ballots to be counted or not by the board of county commissioners; that all the
ballots counted in said precinct were strung, and the five ballots cast but not counted were not
strung. It further appears that the ballots in these precincts, together with all the other ballots
of the other precincts of the county, had been used and handled by the board of county
commissioners of said county on the 5th day of January, 1897, upon a recount upon the
application of another candidate for the office of assemblyman. It further appears that during
the trial of this action that the registry lists of these precincts had not been offered in
evidence, and were not in evidence.
Upon these facts the appellant insists the court erred in denying his motion. We cannot so
hold. No showing whatever is made on the part of the appellant that any fraud had been
committed by any person or persons in Beowawe precinct. It seems that the ballots from that
precinct, including these ballots not counted, had all been presented to the court, carefully
examined by court and counsel, and counted. The same is true of the ballots cast in Eureka
precinct No. 2. Fraud was not charged against the election officers of said precinct in
counting these ballots. From the reading of the counsel's motion, the only purpose thereof was
to ascertain whether evidence might exist favorable to appellant. A stronger showing than this
must be made before it can be held to be error of the trial court in refusing to reopen a case
after the same has been submitted and the court has announced its decision.
held to be error of the trial court in refusing to reopen a case after the same has been
submitted and the court has announced its decision. After a case has been closed and
submitted, it is in the discretion of the court to reopen the same and permit additional
evidence to be taken or not, and if such discretion is not abused, there is no error. (McLeod v.
Lee, 17 Nev. 119; Lamance v. Byrnes, 17 Nev. 202.)
The ballots to which objections were made have been transmitted to this court under the
terms of stipulations. These stipulations provide that, in determining what ballots shall be
rejected on account of the markings thereon, the court shall inspect said ballots, instead of the
statements, and shall count or reject said ballots as they may appear to be legal or illegal,
valid or invalid, in determining the right of either of said parties to said office. A large
number of these ballots are before us, and it is hardly possible to particularly describe the
markings on each, hence we will describe only such as are deemed to have been erroneously
counted or rejected by the trial court.
It appears that the ballots for all the precincts in Eureka county contained the names of the
township officers to be elected in Palisade and Eureka townships. The appellant objected to
five ballots cast in Diamond precinct No. 10 for the respondent and counted by the court.
They are marked Defendant's Exhibits 70, 71, 72, 73 and 74. An inspection of these ballots
fails to disclose any markings thereon that in any manner affect their validity, and they were
properly counted by the court. The respondent objected to three ballots cast in the same
precinct for the appellant and counted by the court, which are marked Plaintiff's Exhibits
LLL, MMM, NNN. These ballots are also clean, and were properly counted by the court. The
same may be said of the two ballots cast in Keystone precinct No. 11 for the appellant and
counted by the court, marked Exhibits PPP, OOO. The appellant also objected to two ballots
cast in Mineral Hill precinct No. 7 for the respondent, but a careful inspection of these ballots
fails to disclose any mark whatever upon either that would render it void. The ballots are
marked Defendant's Exhibits 67 and 68. On the one marked Exhibit 67 there is an irregular
mark of a pencil over the names of the candidates for justice of the peace of Eureka
township, which was clearly made accidentally and not deliberately.
names of the candidates for justice of the peace of Eureka township, which was clearly made
accidentally and not deliberately. The court properly counted these ballots for the respondent.
One ballot cast in precinct No. 9 for the appellant and counted by the lower court was
objected to by the respondent and marked Plaintiff's Exhibit KKK. This ballot, upon
inspection, is not in any manner defective, and was properly counted.
In precinct No. 8, a ballot marked Defendant's Exhibit 69 was counted for the respondent
over the objection of the appellant. This was error. A cross deliberately made by the voter
appears upon said ballot in the blank space for presidential electors under the words Vote for
three, and not opposite the name of any candidate whatever. This ballot should have been
rejected. Also, a ballot was cast in said last-named precinct for the appellant, and counted by
the court for him, over the objection of the respondent, which was marked Plaintiff's Exhibit
JJJ. This ballot is clean, and was properly counted.
In Palisade precinct ballots marked Defendant's Exhibits 63, 64, 65 and 66 were cast for
the respondent Sweeney. The court refused to count Exhibit 66. This was proper, as the
crosses after the names of two of the candidates for presidential electors were placed within a
square made deliberately by the voter. The said Exhibits 63, 64 and 65 were counted by the
court. Exhibits 63 and 64 were properly counted, as these ballots are clean. Exhibit No. 65
should not have been counted, as the person voting the same placed a cross after the name of
M. P. Murphy, a candidate for justice of the peace of Eureka township, and a cross after the
name of John J. Lucey, a candidate for constable of the same township. The person who
voted this ballot must have been a qualified elector of Palisade precinct or township. As such
he had no right whatever to vote for the township officers of Eureka township, as the law
provides that justices of the peace and constables shall be elected by the qualified electors of
their respective precincts or townships. (Gen. Stats. 1644.) The voter not only placed upon his
ballot a distinguishing mark when he attempted to vote for township officers residing in
another township, but did so in direct violation of the provisions of the above-cited section.
direct violation of the provisions of the above-cited section. It might be urged that the officer
who prepared these ballots was at fault in causing to be printed thereon the names of the
township officers of Eureka township. Our Australian ballot law is silent as to this matter,
and we think that the voter is more at fault in attempting to elect officers for which he has no
right to vote, and, in making this attempt, deliberately places upon his ballot a mark that
destroys its secrecy and could be used for the corruption and fraud that the law intended to
prevent. For these reasons Exhibit No. 65 should not have been counted for the respondent.
Three ballots were also cast in said precinct for the appellant Hjul, marked, respectively,
Exhibits CCC, HHH and FFF, which are subject to the same objections as are noted against
Exhibit No. 65. The voters who cast the three last-named exhibits also voted for some or all
of the officers to be elected in Eureka township, and thereby rendered these ballots void.
There was also cast at said precinct one ballot for the appellant, which the court refused to
count, marked Plaintiff's Exhibit GGG. This refusal was correct, as this ballot was marked
with a purple, instead of a black, pencil. There were also cast at said precinct three other
ballots for the appellant, marked Exhibits DDD, EEE and BBB, which were counted by the
court for the said appellant over the objections of the respondent. These ballots are clean and
properly marked, and were properly counted.
There were cast in Ruby Hill precinct 17 ballots to which objections were taken. Ballots
marked Exhibits 44 and 41, cast for the respondent, were not counted by the lower court.
Exhibit No. 41 is void for the reason that the elector voting the same made a cross with a lead
pencil near the center and top thereof and immediately under the cross printed thereon; also,
another cross with lead pencil in the blank space beneath the name of H. S. Starrett, a
candidate for short-term regent; also, another cross with lead pencil near the middle of said
ticket and immediately following the words For members of Assembly. The ballot marked
Exhibit No. 44 was also rejected by the lower court. This, also, was correct, as the elector
voting said ballot had attempted to vote for the township officers of Eureka and Palisade
townships by making the proper crosses after the names of the candidates for whom he
desired to vote.
the proper crosses after the names of the candidates for whom he desired to vote. Under the
rulings herein this ballot is also void.
There was also cast at said last-named precinct a ballot for the respondent, marked Exhibit
No. 43, which was counted for the said respondent over the objection of the appellant. The
court did not err in so counting this ballot. The crosses thereon are not perfect, but they are
sufficient, and the ballot is valid. Ballot marked Exhibit GG, and cast at said precinct for the
appellant Hjul, and counted by the court for the appellant over the objection of the
respondent, is void, for the reason that the person voting the same attempted to vote for the
township officers of Eureka and Palisade townships by placing a cross after the names of the
township officers for whom he desired to vote. This ballot should have been rejected by the
court. Ballot marked Exhibit XX, and cast for the appellant at said precinct, and not counted
by the court, over the objection of the appellant, was properly rejected, for the reason that the
same was disfigured by a partially erased cross after the name of A. P. Anderson, a candidate
for long-term county commissioner.
Ballot marked Exhibit TT, cast for the appellant at said precinct, was not counted by the
lower court over the objection of the appellant. There is no apparent reason for this refusal on
the part of the court from an inspection of this ballot, and it should have been counted for the
appellant. It is clean, and the crosses thereon are above the average. The same may be said of
ballot marked Exhibit ZZ, cast at said precinct for the appellant, which the court refused to
count. Ballots marked Exhibits WW, RR, QQ, PP, YY, NN, VV, and AAA, cast at said
precinct for the appellant Hjul, and counted for him by the court over the objection of the
respondent, are clean ballots, and were so properly counted. Ballots marked Exhibits 42 and
45, cast at said election precinct for the respondent Sweeney, and counted for him by the
court over the objection of the appellant, are clean ballots, and were so properly counted.
In Beowawe precinct No. 5 ballots marked Exhibits 49, 50, 51, 52, 55, 56, 57, 58, 60, 61
and 62 were voted for the respondent Sweeney, and so counted by the court over the
objection of the appellant.
of the appellant. An examination of these ballots fails to disclose any marks thereon that
would render them illegal or void, therefore there was no error in counting the same. In the
same precinct ballots marked Exhibits 53 and 59 were cast for the respondent, and counted
for him over the objection of the appellant. This was error. The electors who voted these
ballots attempted to vote for the township officers of the townships of Eureka and Palisade by
placing the cross opposite the names of the candidates for the respective township offices for
whom they desired to vote. In the same precinct ballot marked Exhibit 54 was voted for said
respondent, and rejected by the court in the count, over the objection of the respondent. This
ballot is marked with a cross opposite the name of C. L. Broy, a candidate for long-term
county commissioner, which the voter has deliberately and intentionally attempted to scratch
out and obliterate with a pencil, thereby disfiguring the ballot to an extent that justified the
court in refusing to count the same.
We now come to the consideration of the three ballots cast at said Beowawe precinct,
alleged to have been cast for the respondent, but were not counted by the election board of
said precinct for him. We think it clearly appears from the testimony of C. A. Jones and J. H.
Murphy, two of the election officers of said precinct, that five ballots were voted at said
precinct at said election, and, for some reason or reasons not apparent in the record, were not
counted by the election officers of said precinct. These ballots are marked Exhibits 46, 47 and
48, and were counted by the district court for the respondent, over the objection of the
appellant. It appears from the testimony of the witnesses that there were five ballots voted at
said precinct which were not counted, but only three thereof, for some reason, have been
transmitted to this court. Of said ballots, Nos. 46 and 48 were properly counted for the
respondent. No. 47 should not have been counted by the court for the respondent, for the
reason that the person who voted the same attempted to vote for John McKernan, a candidate
for justice of the peace of Eureka township, and for T. R. Jewell, a candidate for constable of
Palisade township, by placing the cross required by law opposite their names.
There were cast at said election, in Eureka precinct No. 1, 12 ballots for the respondent,
marked Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12. Exhibits 1 and 2 thereof were rejected
by the court in the count thereof, over the objection of the respondent. This ruling of the court
was clearly correct. The said Exhibit No. 1 has a cross made with a pencil in the vacant space
below and to the right of Peter Breen, a candidate for district attorney at said election. Said
Exhibit No. 2 has an erasure of a cross opposite the name of A. P. Anderson, a candidate for
long-term county commissioner, and a perpendicular mark with horizontal marks crossing the
same at the top and bottom opposite the name of Joseph R. Ryan, a candidate for presidential
elector. Said Exhibit No. 12, being a ballot cast for the respondent and rejected in the count
by the court over the objection of the respondent, has the strip on the right-hand side thereof,
bearing the number thereof, attached, and written in ink on the back of the same is the word
Canceled. Without further explanation, which the record does not give, as to when and by
whom the word was written thereon, we cannot say the court erred in refusing to count this
ballot. Said Exhibit No. 3, which was counted by the court for the respondent over the
objection of the appellant, should have been rejected for the reason that opposite the name of
W. A. Massey, a candidate for justice of the supreme court, there were placed three straight
lines crossing each other so as to distinctly make a star. From the course and direction, the
color and uniformity of the three lines composing this star, it is clearly apparent that the
person voting said ballot deliberately and intentionally made the same. Said Exhibits 6, 7 and
9, being ballots cast in said precinct at said election for the respondent, and counted by the
court for him over the objection of the appellant, should have been rejected and not counted
by the court, for the reason that the person voting these ballots had attempted to vote for the
township officers of Eureka and Palisade townships. Said Exhibits 4, 5, 8, 10 and 11, being
ballots voted at said precinct for the respondent and counted for him by the court over the
objection of the appellant, were properly counted, for the reason that said ballots do not
disclose any marks thereon that would render them illegal or void under our law.
them illegal or void under our law. Ballots marked Exhibits A, B, C, D, E, F, G, H, I, J and K
were voted at said election precinct at said election for the appellant. Said Exhibit B was
rejected and not counted for the appellant over his objection. The action of the court was
correct. A horizontal line opposite the name of John Pardy, a candidate for county surveyor,
was made thereon by the person who voted said ballot. Two crosses also were made in the
square opposite the name of George Russell, a candidate for presidential elector. Said Exhibit
J, being a ballot cast for the appellant and rejected by the court in its count over the objection
of the appellant, is clearly void and illegal. It bears a cross made with a lead pencil in the
vacant space near the center of the first column on the left-hand side of said ticket, between
the words For presidential electors and the words Vote for three. Exhibit G, cast for the
appellant at said precinct and rejected by the court in its count, is clearly illegal and void. It
bears a cross in the vacant space beneath the name of H. S. Starrett, a candidate for short-term
regent of the state university. The person who cast said ballot also attempted to vote for the
candidates for township officers of the townships of Eureka and Palisade. Exhibit H, being a
ballot cast in said precinct at said election for the appellant and not counted by the court, is
also clearly void. The person who voted the same made distinct crosses with a lead pencil
immediately beneath the names of William J. Bryan and Arthur Sewall. Said Exhibits E, I and
K, being ballots cast for the appellant in said precinct at said election and counted for him by
the court over the objection of the respondent, are clearly illegal and void, for the reason that
the persons who voted said ballots attempted to vote for the township officers of the
townships of Eureka and Palisade by placing crosses opposite the names of the candidates of
their choice on said ballots, and, under the rulings heretofore made, said ballots should not
have been counted. Exhibits A, C, D and F, being ballots cast in said precinct at said election
for the appellant and counted by the court for him over the objection of the respondent, are
legal ballots, no marks or words appearing thereon that would affect their validity under our
law.
Exhibits 13, 21, 22, 26, 28 and 39 are ballots cast in Eureka precinct No. 2 for the
respondent Sweeney, each of which the court refused to count for said respondent over his
objection. Said Exhibit No. 13 was correctly rejected by the court, for the reason that the
person voting the same made two distinct crosses thereon immediately under the names of
William J. Bryan and Thomas E. Watson. Exhibit No. 21 was also properly rejected by the
court, for the reason that opposite the name of Benjamin F. Leete, a candidate for presidential
elector, there had been placed marks of impossible description that could not be called a
cross. Said Exhibit No. 26 was also properly rejected by the court, notwithstanding the
objection of the respondent, for the reason that the person casting said ballot placed in the
square opposite the name of the respondent marks with a pencil that more nearly resemble a
spider than anything else. No other marks were made upon this ballot. Said Exhibit No. 28
was also properly rejected by the court, for the reason that the party voting the same had
indiscriminately placed crosses with a pencil on various parts thereof; he also had attempted
to vote for the township officers of Eureka and Palisade townships. Exhibit No. 39 aforesaid
was also properly rejected by the court, for the reason that the person voting the same had
placed crosses immediately beneath the names of Bryan and Sewall thereon. Said Exhibit No.
22 should have been counted by the court for the respondent, as a careful examination thereof
fails to disclose any marking thereon not authorized by law. Exhibits 14, 17, 24, 30, 31, 32,
33, 38 and 40 are ballots voted in said last-named precinct for the respondent and counted by
the court over the objection of the appellant. These ballots are all legal and valid, nothing
appearing thereon prohibited by the law.
Exhibits 23, 25, 29 and 34 are ballots cast in said precinct at said election for the
respondent, and counted for him by the court over the objection of the appellant. This action
of the court cannot be sustained, as each of said ballots bears crosses made by the voter
thereof after the names of the candidates for township offices in Eureka and Palisade
townships, and, for that reason, is void. Exhibit 27 is a ballot cast also at said precinct for the
respondent, and counted for him by the court over the objection of the said appellant.
him by the court over the objection of the said appellant. This ballot must also be held to be
void, as it bears a perpendicular mark made by a lead pencil opposite the name of John Pardy,
a candidate for county surveyor. Exhibits N, O, OO, X and Y are ballots cast at said
last-named precinct for the appellant, and rejected by the court in its count, over the objection
of said appellant. Said Exhibit N was properly rejected, as there is appearing thereon a cross
immediately beneath the name of William J. Bryan. Said Exhibit O was also properly rejected
by the court, as thereupon are crosses immediately beneath the names of William J. Bryan
and Arthur Sewall. Said Exhibit OO was also properly rejected, for the reason that two
crosses were marked on said ballot by the voter thereof opposite the name of Joseph R. Ryan,
a candidate for presidential elector herein. Said Exhibit X was also properly rejected by the
lower court because the voter thereof had placed crosses immediately above the names of
Bryan and Sewall. Said Exhibit Y was also properly excluded by the court, for the reason that
the elector has placed a cross thereon in the vacant space on the extreme lower right-hand
corner thereof, not opposite the name of any candidate. Exhibit W is also a ballot cast in said
precinct at said election, and counted by the court for the appellant over the objection of the
respondent. This was error. The cross is directly upon the line between the names of the
appellant and one J. C. Ravell, who was also a candidate for sheriff at said election, and it is
impossible from the position of the cross to determine whether the voter intended to vote for
the appellant or the said Ravell, therefore, said vote should have been rejected. Exhibits P,
BB, CC, EE and GG are ballots voted in said precinct at said election for said respondent, and
counted by the court for him over the objection of the appellant. Each of these ballots should
have been rejected by the court, as there are marked thereon by the voter with a lead pencil
crosses opposite the names of the candidates for township officers in Eureka and Palisade
townships. Exhibits AA, FF, V and Z are ballots voted in said precinct for said appellant, and
counted for him by the court over the objection of respondent. The action of the court in so
counting these ballots was correct, as there is nothing on the face of the same that would
render them illegal and void under the law.
court in so counting these ballots was correct, as there is nothing on the face of the same that
would render them illegal and void under the law.
There were cast at said precinct 22 ballots which the respondent contends are void.
Fourteen of these ballots were cast for the appellant, and 8 were cast for the respondent. To
each is attached the stub bearing the printed number. The record discloses no facts, other than
these, in relation to these ballots. The respondent contends that the failure of the election
officers to remove the stubs from these 22 ballots rendered each and all void, for the reason
that the stubs with the numbers thereon were distinguishing marks, rendering the ballots
capable of identification, and thereby destroying the secrecy of the ballots.
Section 12 of the Australian ballot law provides that on each ballot a perforated line shall
extend from the top to the bottom one-half inch from the right-hand side of such ballot, and
upon the strip thus formed there shall be no writing or printing except the number of the
ballot, which shall be upon the back of the strip in such position that it shall appear on the
outside when the ballot is folded; that the number on each ballot shall be the same as that on
the corresponding stub, and the ballots and stubs shall be numbered consecutively in each
county. Section 13 of the same act provides that all ballots, when printed, shall be bound in
stub books of fifty and one hundred ballots each. Section 19 provides that a person desiring to
vote shall give his name and address to one of the clerks of election, who shall announce the
same, and, if the other clerk shall find the name upon the registry list, he shall repeat the
name and address; a ballot shall then be given to the voter, and the number of said ballot shall
be written by one of the clerks of election upon the registry list opposite the name of the voter
receiving it.
Section 20 provides, in effect, where and in what manner the voter shall mark his ballot,
how the same shall be folded, and after folded to whom it shall be delivered. It also requires
the inspector receiving the ballot, and before depositing the same in the box, to separate or
detach the strip on the right-hand side thereof.
Section 24 provides that no ballot shall be deposited in the ballot box unless the water
mark appears thereon, and unless the slip containing the number of the ballot has been
removed by the inspector.
Section 26 provides that, in counting the votes, any ballot not bearing the water mark shall
not be counted; that when a voter marks more names than there are persons to be elected to an
office, or if, for any reason, it is impossible to determine the voter's choice for any office, his
vote for such office shall not be counted, and that any ballot upon which appears words,
names or marks, written or printed, except as provided in the act, shall not be counted. (Stats.
1891, 40, et seq.)
The failure of the election officers to detach the stub bearing the number of the ballot
destroys its secrecy; but whether such failure shall render the ballot void, and thereby
disfranchise the voter, is a new and important question.
The case of Buckner v. Lynip, 22 Nev. 426, is cited by the appellant as being directly in
point and decisive of this question. In that case the election officers failed to remove the
perforated strip on the right of each ballot. It was not charged in that case that the failure of
the election officers in this matter was fraudulent or intentional. Section 26, above cited, does
not expressly direct that a ballot upon which this stub has been left shall not be counted. The
law required the stub to be attached to the ballot when printed, and it also inferentially
required that the ballot should be detached from the stub before it was delivered to the voter.
In Buckner v. Lynip, supra, the court say that a study of this statute leaves no doubt that its
purpose is to secure a fair expression of the will of the electors of the state, by secret ballot,
uninfluenced by bribery, corruption or fraud. This being the object of the law, it should be so
construed as to remedy the evil against which its provisions are directed, and at the same time
not to disfranchise the voter further than is necessary to obtain that object.
The case at bar is clearly distinguishable from the case of Buckner v. Lynip, supra. In that
case all the ballots cast in Rebel Creek precinct were so cast without first having the strip
detached by the accidental blunder of the election officers, and without the knowledge of
the voters.
cers, and without the knowledge of the voters. It was shown that not a voter knew that the law
was not being complied with, and a fair inference from the testimony was that it was not
known until after the polls had closed. Considering the fact with the provisions of the law
bearing upon the matter, the court correctly held there was a reason in the law itself for not
holding those ballots void, and upon that point the court say: If a citizen votes a ballot not
bearing the water mark, he is somewhat in fault himself. * * * On the other hand, the slip is to
be removed by the inspector after the ticket is surrendered to him, and with this the voter has
nothing to do; and very often, as in this case, it might be left on the ballot by oversight or
accident.
It was the duty of the election officers to deliver to the elector a proper ballotone bearing
the water mark with the strip bearing the number attached to the right thereof, detached from
the stub. It was equally the duty of the voter to know the stub was detached, that the ballot
bore the water mark, and had attached thereto the strip on the right-hand side bearing the
number. He had the means of knowing these facts, and should be held to exercise some
intelligence and some diligence in casting his ballot. Where he blindly accepts a ballot from
an election officer bearing marks that will destroy the secrecy of the ballot, he should be held
to know that fact. It will not do to cast all responsibility upon the officer except in those
matters where the officer has the exclusive right to act, and where his acting would destroy
the validity of the ballot.
The case of Buckner v. Lynip is thus distinguished from the case at bar, and was decided
upon the peculiar facts surrounding it. We must hold, therefore, that the court erred in
counting the ballots voted in Eureka precinct No. 2 having the stubs attached.
It appears from the record that the appellant received 103 votes for said office to which no
objections were made, to which add the number allowed by this court under the stipulations
and it will give him a total vote of 131.
It also appears from the record that the respondent received 98 votes to which no
objections were made, to which add the number found under the stipulations and it will give
him a total vote of 13S.
total vote of 138. The 22 votes cast in Eureka precinct No. 2 with the stub attached, and
rejected by this court, are not considered in the above count. If considered they would not
change the result.
The judgment will, therefore, be affirmed.
The appellant urges that a rehearing be granted in this action, for the reason that this court
has assumed that there are only two civil townships in Eureka county, when, in fact, there are
four; and that in the count made by this court ballots were counted for respondent upon which
crosses were made opposite the names of wrong township officers, other than those indicated
in the opinion.
The record in the case fails to disclose other townships than Eureka and Palisade. The
ballots in all the precincts have printed thereon the names of the township officers for Eureka
and Palisade townships only. If it is, then, a fact that there are two other townships, to wit:
Ruby Hill township and Beowawe township, then the count made by this court of the
contested ballots should be slightly changed. This court counted for the appellant ballots cast
in Ruby Hill precinct marked Exhibits VN, NN, TT, RR and PP, each of which ballots was
marked with a cross opposite the names of the candidates for township officers of either
Eureka or Palisade townships. These ballots, under the showing made by the petition, should
have been rejected by this court. In the same precinct we counted one vote, marked Exhibit
45, for the respondent, which, for the reason above indicated, should also have been rejected.
Only two ballots were brought up to this court under the stipulation which were cast at
Mineral Hill precinct No. 7, and neither of said ballots was cast for any township officer. Of
the two ballots before the court, cast in Keystone precinct No. 11, both of which were voted
and counted for Hjul, the one marked Exhibit PPP was also voted for the township officers of
Eureka township, and the one marked Exhibit OOO was not voted for any township officer.
Ballots marked Exhibits LLL and MMM, cast in Diamond precinct No. 10, were counted by
the court for appellant, and each of said ballots was cast for the township officers of
Eureka township.
appellant, and each of said ballots was cast for the township officers of Eureka township. The
ballot marked Exhibit NNN, cast in said precinct, and counted in this court for the appellant,
was voted for the township officers of both Eureka and Palisade townships, and should, for
the reason above given, be rejected. Ballot marked Exhibit 70, and voted in said precinct for
the respondent, was also voted for the township officers of Eureka township. Ballots marked
Exhibits 71, 72, 73 and 74 of said precinct were voted and counted for the respondent, and for
the township officers of both Eureka and Palisade townships. These ballots should have been
rejected. Only one ballot from precinct No. 9 is before this court. It was cast and counted for
the appellant. The elector voting the same made the proper cross opposite the names of the
township officers for Eureka township. Only two ballots have been brought before the court
having been cast in precinct No. 8. The one marked Exhibit JJJ was counted by the court for
the appellant. This ballot was marked with a cross opposite the names of the candidates for
township officers of Eureka township. Ballot marked Exhibit No. 69, and cast at said precinct
for the respondent, was rejected by this court. Of the ballots counted in Beowawe precinct
No. 5 for the respondent by this court, Exhibits 49 and 61 bear the proper cross opposite the
names of the township officers of Palisade township, and should have been rejected under the
averments of the petition for rehearing. The other ballots cast in this precinct and before this
court are correct. The ballots from the other precincts, not considered herein, were passed
upon by this court in its opinion. Under the allegations of the petition for a rehearing, and by
giving the appellant the benefit of the ballot counted for him in precinct No. 9, and the one
counted for him in precinct No. 8, marked Exhibit JJJ, and the one counted for him in
Keystone precinct No. 11, marked Exhibit PPP, and without considering the 22 ballots cast in
Eureka precinct No. 2 and rejected by this court in its opinion, the count will stand as follows:
Sweeney, 131 votes; and Hjul, 125 votes.
A rehearing is therefore denied.
____________
[No. 1485.]
THE STATE OF NEVADA, Respondent, v. THE VIRGINIA AND TRUCKEE RAILROAD
COMPANY, A Corporation, et al., Appellants.
TaxationAssessment of Railroad PropertyNet Income to Govern.The value of this railroad, for the
purpose of taxation for the year 1895, must be determined mainly by its net earnings capitalized at current
rates of interest, taking into consideration any immediate prospect for an increase or decrease in the earning
capacity of the road. (State v. V. & T. R. R. Co., 23 Nev. 283, affirmed.)
IdemEvidenceNo Substantial Conflict ofNot Sufficient to Support Verdict.Where the only evidence in
support of a verdict is that of the deputy assessor, and it is shown that he has no knowledge of the business
of the road, had not examined the reports of the company filed in accordance with law, and that, if he had
known of a decrease in the earnings of the road, it would not have influenced his valuation upon it, such
evidence is insufficient to create a substantial conflict in the evidence where the undisputed facts were that,
according to the correct method of valuation, the assessment was too high.
IdemTax SuitDefense of Over-ValuationCompetent and Incompetent EvidenceVerdict When Will Be
Set Aside.Under the act of 1895 (Stats. 1895, p. 39), amending the revenue act, allowing defendants to
plead as a defense that the assessment is out of proportion to, and above the actual cash value of the
property assessed, where the defendant introduces competent evidence showing an over-valuation and the
jury by their verdict find the value as fixed by the officers, without evidence to support it other than the
delinquent list or equalized assessment roll, or the testimony of a witness or witnesses not qualified to
testify under the well-established rules of evidence as to the value, this court must set aside such verdict.
(Concurring opinion of Bonnifield, J.)
Appeal from the District Court of the State of Nevada, Storey county; C. E. Mack, District
Judge:
Action by the State against the Virginia and Truckee Railroad Company to recover the
taxes as assessed on its property in Storey county for the year 1895. From a judgment for
plaintiff and an order denying a new trial, defendant appeals. Reversed.
I. It is the established law in this state, so far as the assessment of railroad property for the
purpose of taxation is concerned, as laid down by the supreme court again and again, that "to
determine the value of a railroad then, the very first inquiry is as to its actual cost.
again, that to determine the value of a railroad then, the very first inquiry is as to its actual
cost. The prima facie is its value. But if it appears that the actual cost was in excess of the
necessary cost, the necessary cost is its proper standard. If it further appears that the net
income of the road does not amount to current rates of interest on its necessary cost, and is
not likely to do so, or if the business of the road is likely to be destroyed or impaired by
competition, or other cause, or, in short, if the utility of the road is not equal to its cost, then
its value is less than its cost and must be determined by reference to its utility alone. (State v.
C. P. R. R. Co., 10 Nev. 47; State v. V. & T. R. R. Co., 23 Nev. 283.)
II. The assessment was made by the deputy county assessor. He was without any actual
knowledge of the value of railroads, and was neither a railroad man, mechanic or engineer,
and without any actual experience with railroads. He neither knew nor made any inquiry
about the business of the company in making the assessment for the year 1895, and did not
know what the receipts or expenditures of the defendant were in its business in that year, nor
in previous years, and swears that it would not have made any difference in his assessment if
he had known these matters, and that he fixed the value of the road upon what it had done and
what it might do. His testimony showed that business was so bad in Storey county that no
one's business was profitable, and that he knew of no business he would recommend any one
to go into, and finally admitted that his beliefs as to the business of the county were founded
upon speculation. It is upon such evidence as this that respondent seeks to sustain the verdict
and judgment in this case.
James R. Judge, Attorney-General, F. P. Langan, ex-District Attorney, Langan & Knight,
Geo. N. Noel, District Attorney, and F. M. Huffaker, for Respondent:
I. In the case of State v. V. & T. R. R. Co., 23 Nev. 283, recently decided in this court, it is
said that, while the general rule is that, where there is a conflict in the evidence and a jury
rendered a verdict thereon, this court will not disturb such verdict, but that this rule demands
that such conflict must be material, and in that case, for the reason there was no material
conflict in the evidence concerning the cash value of the Virginia and Truckee Railroad
Company, and further that, from all the evidence, it appeared the valuation placed upon
the road by the assessor was excessive, the verdict was set aside.
no material conflict in the evidence concerning the cash value of the Virginia and Truckee
Railroad Company, and further that, from all the evidence, it appeared the valuation placed
upon the road by the assessor was excessive, the verdict was set aside. In this particular we
distinguish the case at bar from the Washoe county case.
II. We contend there is a substantial and material conflict in the evidence in the case at bar
as to the cash value of the property in controversy. The evidence on the part of appellants as
to the cash value of the railroad given by D. A. Bender, general passenger and freight agent of
appellant, who therefore may be considered an interested witness, is directly controverted by
W. G. Thompson, a disinterested witness, whose long acquaintance with the property and
business affairs of Storey county gave him at least an equal opportunity with Mr. Bender of
acquiring a knowledge that would render him competent to correctly value the railroad.
III. Counsel contends that the admission of evidence as to an arrangement between the
superintendent and assessor, fixing the value of the road in 1893, was error. He objected that
such evidence is inadmissible for any purpose, and asserts that this witness could not have
testified at all had he not been the officer making the assessment, and relies upon the
language of this court in the Washoe county case, to wit: It appeared, however, that he had
no special knowledge of the value of a railroad, nor was he any better qualified to testify to
the value of one than almost any other man in the community. Counsel evidently intends this
to go to the extent that none but a railroad man can have any idea of the value of a railroad;
that the interested railroad men only are competent witnesses in matters of this kind. We
submit that this court never intended such construction should be put upon the language.
IV. Such statements from the superintendent of a railroad justify the assessor to adopt
them, if he deems them correct and the corporation is bound. (People v. Stockton R. R. Co.,
49 Cal. 414.)
V. If the deputy assessor had prosecuted an investigation or inquiry as to the change of
conditions between 1894 and 1895, he would have discovered that the earnings of the
railroad for the year 1S95 were $27,449 53 greater than the earnings of 1S94, and,
according to appellant's principal contention in this casethe fact that the earnings were
nearly 400 per cent greater in 1S95 than in 1S94the deputy assessor would have been
justified in increasing the valuation of said property in 1S95 proportionately to the
increase of the earnings.
road for the year 1895 were $27,449 53 greater than the earnings of 1894, and, according to
appellant's principal contention in this casethe fact that the earnings were nearly 400 per
cent greater in 1895 than in 1894the deputy assessor would have been justified in
increasing the valuation of said property in 1895 proportionately to the increase of the
earnings. Counsel, in objecting to the alleged failure of the deputy assessor to prosecute an
investigation and inquiry in 1895 as to the change of conditions, is objecting to an act which
could only benefit appellants.
This is an action to recover taxes due for the year 1895, amounting to the sum of $6,353
50, together with penalties and costs.
Defendant valued its railroad in Storey county at $70,787, and delivered to the assessor the
statutory statement to that effect. The officer declined to accept the valuation, but assessed it
at the sum of $127,070. The board of equalization sustained the officer, and in due time this
action was commenced. At the trial a verdict was rendered in favor of the state for $6,353 50,
together with penalties and costs. From the judgment and an order refusing a new trial, the
defendant appeals.
In the case of State v. V. & T. R. R. Co. et al., 23 Nev. 283, it was decided that the value of
this railroad for the purposes of taxation for the year 1895 must be determined mainly by its
net earnings capitalized at the current rates of interest, taking into consideration any
immediate prospect for an increase or decrease in the earning capacity of the road.
In that case the only evidence to support the verdict was that of the assessor. He testified
that in his judgment the railroad in Washoe county was worth the amount assessed. It was
shown that he had no knowledge of the business of the road; that he had not examined the
reports of the company filed in compliance with law in the office of the secretary of state, and
that if he had known of any decrease of its earnings, that fact would not have influenced his
valuation of the property. It was held that this evidence was insufficient to create a
substantial conflict in the evidence when the undisputed facts were that, according to the
correct method of valuation, the assessment was too high.
insufficient to create a substantial conflict in the evidence when the undisputed facts were
that, according to the correct method of valuation, the assessment was too high.
That case is sought to be distinguished from this, upon the ground that in this case there is
a substantial conflict in the testimony, and therefore this judgment should be affirmed.
In this case the only witness upon the part of the state touching valuation was the deputy
assessor. His testimony was substantially the same as that of the assessor in the case from
Washoe county.
Some testimony was introduced tending to show that the superintendent of defendant had
admitted the correctness of an assessment made in the year 1893, but it was also shown that
in that year the business of the road was exceptionally prosperous, the yearly statement made
June 30th showing $102,341 50 as net earnings.
We are unable to make any distinction in principle in the respect mentioned between the
cases. The remaining portion of the testimony is substantially the same in each case.
It was shown that the net earnings for the year 1895 were $27,449 53. That sum capitalized
at 8 per cent, the rate of interest fixed by the undisputed testimony, represents $343,119 12 as
the value of the entire road.
The valuation fixed by the assessor cannot be upheld, and the case must be reversed for the
reasons given in State v. V. & T. R. R. Co., 23 Nev. 283.
It is so ordered.
Massey, J.: I concur.
I concur in the opinion of the court, as expressed by Chief Justice Belknap, that the
judgment of the court below must be reversed for the reasons given and under the authority
cited. The statute of 1895, 39, amends the general revenue law, and by the amendment
defendants in tax suits are allowed to plead as a defense, among others, that the assessment
is out of proportion to, and above the actual cash value of the property assessed. Before this
amendment such defense could not be pleaded and the value of the assessed property, as fixed
by the assessor and board of equalization, could not be set aside, except upon the plea and
proof of fraud in the assessment, and the delinquent list was sufficient evidence to
sustain the valuation so fixed.
equalization, could not be set aside, except upon the plea and proof of fraud in the
assessment, and the delinquent list was sufficient evidence to sustain the valuation so fixed.
Under the statute of 1895, when the defendant introduces competent evidence showing an
over-valuation, and the jury by their verdict find the value as fixed by the officers without
evidence to support it, other than the delinquent list, or equalized assessment roll, or the
testimony of a witness or witnesses not qualified to testify under the well-established rules of
evidence as to the value, this court must set aside such verdict, or ignore such defense and the
statute which authorizes it. This court has no right to disregard an act of the legislature except
upon constitutional grounds.
____________
23 Nev. 437, 437 (1897) State v. Cronan
[No. 1494.]
THE STATE OF NEVADA, ex rel. JOSEPH R. RYAN,
Relator, v. JAMES CRONAN, Respondent.
Quo WarrantoCharacter of OfficeWhen Will LieCommon LawUnder the common law an information
in the nature of quo warranto will lie only for usurping a public office, and is never exercised in the case of
a mere agency or employment determinable at the will of the employer.
IdemRemedy Extended by Statute.The provisions of section 3711 of the General Statutes, which provides:
An information may be filed against any person unlawfully holding or exercising any public office or
franchise within this state, or any office in any corporation created by the laws of this state or the laws of
the territory of Nevada, while it extends the remedy to any office in a corporation created under the laws
of this state, the question of what constitutes an office within the settled rule is not affected by the statute.
IdemRight to Position of Superintendent of Mining Company.Quo warranto will not lie to determine
conflicting claims of appointment to a position as superintendent of a mining company.
MandamusRemedy to Put One in Possession of His Company.Mandamus is the only speedy and adequate
means by which a person entitled to the position of superintendent of a mining company, which he is
unlawfully precluded from, may be placed in the enjoyment of the right which he claims.
Jurisdiction Over Parties to ActionWhen Necessary, Right to Review Acts of Foreign Corporation.This
court having jurisdiction over the parties to this proceeding so far as necessary to determine the
controversies arising in this case between them, it has the right to and will inquire into the power of the
corporation and its officers and stockholders under the laws of the state of California, and review their acts
and pass upon the question of their validity, although the court has no jurisdiction over the corporation
itself, it being a corporation organized and existing under and by virtue of the laws of the state of
California.
Corporation (California)Power of President to Adjourn Meeting.The president of a California corporation
at his will alone has no authority to adjourn without day a stockholders' meeting against the expressed will
of the stockholders there assembled.
IdemStockholdersRight to Elect Directors.The statutes of California vest in the stockholders the right to
annually elect a board of directors of said company. This right cannot be divested by any act of the
directors themselves, much less by the president.
IdemStockholders' MeetingIllegal Acts of President.Where, at a stockholders' meeting of a California
corporation, the president attempts to adjourn the same without the consent of the stockholders and refuses
to preside, or to permit the meeting to be continued in the office of the company, the stockholders may
adjourn, without him, to another room and there hold their meeting.
IdemAdjourned Meeting.Stockholders may transact any business at any adjourned meeting that might
lawfully have been transacted at the original meeting.
IdemStockholdersElection of DirectorsStock in Name of Trustee.Stockholders of California mining
corporations may elect directors, where the shares of stock stand in the names of trustees on the books of
the company without the names of the cestuis que trustent being indicated, notwithstanding statute of
California (1880, p. 131, sec. 2) provides that the names of the cestuis que trustent of stock shall be upon
the books of the corporation.
IdemBoard of DirectorsElection of, Valid Until Annulled.The civil code of California (sec. 312) having
provided that an invalid election of a board of directors may be set aside by petition of stockholders in the
superior court, the supreme court of this state will regard the election of directors by a California mining
corporation as valid until annulled by the courts of California.
Original Proceeding. Application for mandamus by the State, on the relation of Joseph
Ryan, against James Cronan. Writ issued.
W. E. F. Deal, for Relator:
I. The evidence shows, without any conflict, that at all of the meetings of the stockholders
mentioned there was a majority of stock present, answering at the roll call.
II. There is no provision in the laws of California, or in the by-laws of the company,
giving the chairman of the stockholders' meeting any power whatever except to preside, and,
in case of a tie, to give the casting vote.
III. The by-laws, having prescribed the duties and powers of the chairman, are prohibitory
of the exercise of any other power upon the principle Expressio unius exclusio alterius.
(Am. and Eng. Ency. Law, vol. 17, p. 87-9.)
IV. No case can be found in which any such power as was exercised at the meetings of
March 10th and 17th, by Mr. Fox, has been sanctioned.
V. Section 312 of the civil code of the state of California is itself conclusive of the powers
of the chairman. That section provides in very clear language that a stockholders' meeting,
called for the purpose of electing a board of directors, shall not adjourn for any cause, except
from day to day or from time to time, and then only when for any reason there is not present a
majority of the subscribed stock or members, or no election had. The stockholders themselves
were by this provision of the code prohibited from adjourning, there being a quorum present.
VI. The chairman of the meeting having by his action ceased to be chairman of the
meeting, the stockholders had it in their power, which they exercised, to organize and proceed
with the business for which they were called together.
VII. It will be seen, from the civil code and the by-laws of the Hale and Norcross Silver
Mining Company, that the powers of the president of the Hale and Norcross Silver Mining
Company, as chairman of a stockholders' meeting, called for the purpose of electing a board
of trustees, are limited to presiding at the meeting, and that he has no power other or greater
than any other stockholder at such meeting, except in case of a tie, to give the casting vote.
Neither the board of trustees, nor the president, nor the stockholders themselves, have any
power to postpone an annual election of a board of trustees, their term being fixed by law.
VIII. Notwithstanding the laws of the state of California, and directly contrary to the
by-laws of the company, the president of the Hale and Norcross Silver Mining Company,
without any motion being made to that effect, without any action or proposed action of the
stockholders, and against their desire, arrogated to himself the power of adjourning the
stockholders' meeting on March 10th, upon the pretense that it was by an order of court,
which order, the evidence shows, was made by his procurement.
IX. This order of court was dissolved on March 17th, and the stockholders again met on
that day at the hour to which that meeting had been adjourned by the stockholders
themselves, it being the same time as fixed by the court, and a quorum being present, as
ascertained by calling the roll, the president of the company, in defiance of the law, the
decision of the court, and the by-laws of the company, again adjourned the meeting
without day, refusing to entertain any motion or to allow the stockholders any voice
whatever in the meeting.
selves, it being the same time as fixed by the court, and a quorum being present, as
ascertained by calling the roll, the president of the company, in defiance of the law, the
decision of the court, and the by-laws of the company, again adjourned the meeting without
day, refusing to entertain any motion or to allow the stockholders any voice whatever in the
meeting. He assumed the power to try and decide for himself the right of the legally
appointed proxies of the stockholders to represent their principals, and did decide without any
proof being made of any fact upon which a decision could be based. No contest was made by
any one claiming the right to represent any of the stock. No protest was made by any one
against the right of those present to vote. No proofs were made, but the president, of his own
motion, instituted an inquisition as to the rights of property.
X. Section 312 of the civil code was enacted for the very purpose of preventing such
inquiries at an election, leaving to the parties aggrieved the right to petition the courts, as
provided in section 315, and to right any wrong suffered by any stockholder whether present
or absent.
XI. The answer of the defendant in this case rests upon the alleged power of the chairman
to rule as he did, and if, as I have shown, he had not such power, the relator is entitled to the
enjoyment of his rights as superintendent of the company. The defendant has no color of right
to the position which he holds, for the reason that the term of office of the board which
elected him has expired, and a new board has been elected, which elected relator to that
position.
XII. The laws of California having provided a remedy for any stockholder aggrieved at
any vote cast at an annual election for a board of directors, no attack can be made upon any
vote cast at the election held on March 18, 1897, except in a proceeding under section 315.
This special remedy, being provided for this special purpose, is prohibitory of any other, and
an election cannot be attacked in any collateral proceeding.
XIII. In the Market-street Railway case, 109 Cal. 571, it was settled that stock may be
voted by trustees who not only appear upon the books as such, but are really and in fact
trustees for other persons, and that the trustee is the legal owner of the stock, and as against
the corporation and all the world, except his cestui que trust, no inquiry may be had
touching his action in the premises.
owner of the stock, and as against the corporation and all the world, except his cestui que
trust, no inquiry may be had touching his action in the premises.
Wm. Woodburn and W. T. Baggett, for Respondent:
I. Mr. Fox, as chairman of the meeting, under our advice as attorneys for him and
attorneys for the corporation, ruled and decided that no stock issued in the name of trustees
without designating for whom the party held the stock in trust, both upon the certificate and
upon the books of the corporation, could be recognized as stock votable at said or any
election held by the corporation. Mr. Fox unquestionably, under the laws of this state, as
determined by the supreme court of California, in the case of Smith v. S. F. & N. P. R. R. Co.,
47 Pac. Rep. 583, had the right, in the first instance, to determine whether or not the stock
which was offered to be voted was such stock as could or should be voted at that election.
II. If the stock presented by Mr. Grayson should not have been voted, as we contend, then
it was the duty of Mr. Fox to declare the meeting adjourned, since it is evident that all the
stock of the corporation, with the exception of about 2,800 shares out of 112,000 shares,
could not be voted at all.
III. We now ask the question: Could the stock of this corporation stand in the names of
persons as trustees, when neither from the face of the certificate nor from the books of the
corporation did it appear for what particular person or persons the stock was so held in trust?
We assert that, by the laws of this state concerning its own corporations, stock so issued
could not be voted at an election held for the purpose of electing directors for a corporation.
IV. The sections of the code referred to by counsel for petitioner relate to corporations
generally, and can have no application to this case, because, by a law subsequently passed
referring specially to mining corporations, the matter of the issuance of stock and voting the
same is particularly declared, and the rule established to be other and different from that of
corporations generally.
V. By the very words of this section (sec. 2, act approved April 23, 1880) it is evident that
in all cases stock in mining corporations shall stand in the books of the company in the
name of the real owners of such stock, but if issued in the name of trustees, then the
party for whom he holds such stock in trust must be designated upon the books and also
in the body of the certificate of said stock.
corporations shall stand in the books of the company in the name of the real owners of such
stock, but if issued in the name of trustees, then the party for whom he holds such stock in
trust must be designated upon the books and also in the body of the certificate of said stock. It
is admitted that the majority of the stock of this corporation has been issued contrary to the
requirements of this section of the statute which we have quoted, but it is contended that
notwithstanding the stock has been so issued in disobedience to the requirements of the law,
yet the persons in whose names that stock stands upon the books of the company as trustees
have the right to either vote the same or give proxies to others to vote the same; in other
words, that this section of the law can be made, by the parties themselves having this stock so
unlawfully issued, a dead letter, they claiming all the rights that they would have had the
stock been lawfully issued in accordance with this section.
VI. The supreme court of the state of California has not to our knowledge passed upon or
construed this section of the statute. If, however, the construction given to this statute by
Superior Judges Seawell and Belcher is a correct one, then Mr. Fox's action in declining to
receive the votes or proxies tendered by Mr. Grayson is fully sustained by the law, and it was
his duty to declare that no election could be held, and to declare the right of himself and his
associates to continue to perform the duties of directors of the Hale and Norcross Silver
Mining Company.
VII. If they continued rightfully to perform such duties, then, of course, it was within their
power to retain Mr. Cronan as superintendent of the corporation, and the action of Mr.
Grayson and his associates in appointing Mr. Ryan was without authority of law, and gave to
him no rights whatever as superintendent of the Hale and Norcross Mining Company.
VIII. Under the decision of the supreme court of Nevada in the Curtis case (3 Nev.) this
proceeding cannot be maintained, for it appears that the defendant Cronan has a color of right
to the position which he holds. If the facts of this case, and the law to which we have called
attention, do not show a color of right, then it is difficult to understand the meaning of that
term.
meaning of that term. The facts of this case, and the law to which we have called the attention
of the court, go far beyond establishing a mere color of right; they, in our judgment, establish
an unquestioned right in the defendant to hold the position which he holds as superintendent
of the company, by virtue of his appointment during the year 1896.
IX. The proceedings should be dismissed for want of jurisdiction, and, if not dismissed,
then judgment upon the merits should go in favor of the defendants.
This is an application by relator, Joseph R. Ryan, upon due notice given, for a peremptory
writ of mandamus to compel the respondent, James Cronan, to surrender and deliver to
relator all the property in his possession belonging to the Hale and Norcross Silver Mining
Company, situated in Virginia City, Storey county, Nevada, and to compel said James Cronan
to admit said Joseph R. Ryan to the use and enjoyment of his right and office as
superintendent of said company, from which relator alleges he is unlawfully precluded by
said Cronan.
From the pleadings its appears, among other things, that the Hale and Norcross Silver
Mining Company is a corporation, organized and existing under and by virtue of the laws of
the state of California, and organized for the purpose of mining on its certain mining claim on
the Comstock lode in Virginia City, Storey county, Nevada, and ever since its organization it
has been and now is engaged in such mining; that each party claims to be the superintendent
of said corporation, and claims the right to exercise the functions of said office, and to carry
on said business of mining for said company, and that he is entitled to all the emoluments of
said position; that on the 11th day of March, 1896, a board of directors of said company was
elected for the then ensuing year, and on the - day of May, 1896, the respondent was
appointed the superintendent of said company by said board, and he immediately entered
upon the discharge of his duties as such superintendent in conducting the said mining
business of said corporation in said Storey county, and so continued till the 24th day of
March, 1897; that on the 24th day of March, 1S97, the relator served upon the respondent
notice of relator's appointment as superintendent of said company and notice of the
respondent's removal therefrom, and demanded that respondent admit relator to the use
and enjoyment of said office, and that he deliver to relator said property, which
respondent refused to do; and that he continues to hold said office of superintendent, and
as superintendent continues to carry on said mining business; that the relator bases his
claim to the office of superintendent on an appointment made by the board of directors of
said corporation duly elected, as he alleges, on the 1Sth day of March, 1S97; that the
respondent, in his answer, denies the validity of the election of said board on certain
grounds named, and denies the validity of the appointment of the relator as such
superintendent; and that the superintendent is at all times subject to the direction of the
board of directors or the president of the company, and holds his office or position only at
the will of the board of directors.
day of March, 1897, the relator served upon the respondent notice of relator's appointment as
superintendent of said company and notice of the respondent's removal therefrom, and
demanded that respondent admit relator to the use and enjoyment of said office, and that he
deliver to relator said property, which respondent refused to do; and that he continues to hold
said office of superintendent, and as superintendent continues to carry on said mining
business; that the relator bases his claim to the office of superintendent on an appointment
made by the board of directors of said corporation duly elected, as he alleges, on the 18th day
of March, 1897; that the respondent, in his answer, denies the validity of the election of said
board on certain grounds named, and denies the validity of the appointment of the relator as
such superintendent; and that the superintendent is at all times subject to the direction of the
board of directors or the president of the company, and holds his office or position only at the
will of the board of directors.
Upon filing the answer of respondent his counsel moved the court to dismiss the
application of relator upon substantially the following grounds: That it is apparent on the face
of the pleadings that the issue presented involves a determination as to the person properly
elected to an office or entitled to exercise its functions, and that it likewise appears that the
office is already filled by an actual incumbent, exercising the functions of the office de facto
and under color of right; that mandamus will not lie to compel the admission of another
claimant, nor to determine the disputed question of title, and that in such case the party
aggrieved, who seeks an adjudication upon his alleged title and right of possession to the
office, will be left to assert his rights by the aid of an information in the nature of quo
warranto, which is the only efficacious and specific remedy to determine the question in
dispute between the parties.
Quo Warranto: It seems that under the common law an information in the nature of quo
warranto will lie only for usurping a public officea substantive officeand not merely the
function or employment of a deputy or servant held at the will and pleasure of another.
In Darley v. The Queen, 12 Cl. and Fin. 541, Tindal, C. J., delivering the opinion of the
judges, said: "After the consideration of all the cases and dicta on this subject, the result
appears to be that this proceeding by information in the nature of quo warranto will lie
for usurping any office, whether created by charter alone or by the crown with consent of
parliament, provided the office be of a public nature, and a substantive office, not merely
the function or employment of a deputy or servant held at the will and pleasure of others;
for with respect to such an employment, the court certainly will not interfere, and the
information will not properly lie."
delivering the opinion of the judges, said: After the consideration of all the cases and dicta
on this subject, the result appears to be that this proceeding by information in the nature of
quo warranto will lie for usurping any office, whether created by charter alone or by the
crown with consent of parliament, provided the office be of a public nature, and a substantive
office, not merely the function or employment of a deputy or servant held at the will and
pleasure of others; for with respect to such an employment, the court certainly will not
interfere, and the information will not properly lie.
In Queen v. Fox, 8 Ellis and Blackburn, 938, a rule was obtained calling on the defendant
to show cause why an information in the nature of a quo warranto should not be exhibited
against him to show cause by what authority he claimed to exercise the office of clerk to the
justices of Newport. Lord Campbell, C. J., said: The rule must be discharged. First, the
office is held during pleasure. * * * The justices may remove their clerk * * * merely for the
purpose of replacing him by a person whom they think fitter for the office. The principles laid
down in Darley v. The Queen govern this case. Wightman, J., said: I am entirely of the
same opinion. * * * The clerk holds only during pleasure. Crompton, J., said: I am of the
same opinion. The clerk is removable at pleasure, and quo warranto will not lie for an office
of such a tenure.
High, in his treatise on Extraordinary Legal Remedies (sec. 632), says: In determining
upon the propriety of a quo warranto information as a corrective of the usurpation of an
office or franchise, an important distinction is to be drawn between the case of a public office
proper, affecting public rights and interests, and that of a mere employment or agency, having
no certain tenure, but determinable at the will of the employer. And while, in a generic sense,
it is true that every office is an employment, yet the converse of the proposition by no means
follows, and there are many employments, even of a public nature, which are not offices.
While, therefore, the jurisdiction under discussion is well established as regards the
usurpation of offices of a public nature, it is never exercised in the case of a mere agency or
employment determinable at the pleasure of the employer."
employment determinable at the pleasure of the employer. Spelling's Extraordinary Relief,
sec. 1832, is to the same effect.
An act regulating proceedings upon quo warranto and information in the nature thereof
(Gen. Stats. 3711) provides: An information may be filed against any person unlawfully
holding or exercising any public office or franchise within this state, or any office in any
corporation created by the laws of this state, or the laws of the late territory of Nevada.
Although the above act extends the remedy to any office in a corporation created under the
laws of this state, the question, what constitutes an office within the rule laid down by the
authorities above cited? is not affected by the statute.
High (sec. 332), supra, says: And the doctrine holds good, even under a statute extending
the remedy to offices in corporations created by the state, since the question of what
constitutes an officer is not affected by such a statute, and must be determined by the
common law.
Even if the Hale and Norcross Silver Mining Company was a Nevada corporation, the
facts being otherwise the same as in this case, an information in the nature of quo warranto
would not lie, the position of the superintendent of the corporation not being such an office as
is contemplated by the above act. In People v. Hills, 1 Lansing, 202, the supreme court of
New York held, under a statute extending the remedy to any office in a corporation created by
the authority of that state, that an action in the nature of quo warranto does not lie against
the secretary and treasurer of a railroad company holding his office as a mere servant thereof,
and at the will of its directors.
Mandamus: Under section 3469 of the General Statutes of Nevada, the writ of mandamus
may issue to any inferior tribunal, corporation, board or person to compel the performance of
an act which the law specially enjoins as a duty resulting from an office, trust or station; or to
compel the admission of a party to the use and enjoyment of a right or office to which he is
entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation,
board or person. Section 3470 of said statute provides: This writ shall be issued in all cases
where there is not a plain, speedy and adequate remedy in the ordinary course of law."
speedy and adequate remedy in the ordinary course of law.
The case of State ex rel. Curtis v. McCullough, 3 Nev. 202, was an original application to
this court for a writ of mandamus to compel McCullough to deliver to Curtis certain property
belonging to the office of superintendent of the Overman Silver Mining Company, a
California corporation, carrying on the business of mining in Storey county, Nevada, and to
admit Curtis to all the rights incident to the position of such superintendent, both parties
claiming to be the superintendent of said corporation.
This court in that case said: The remedy by this writ, under the statutes of this state,
seems much more extensive than it was at common law, and this case seems clearly to be
embraced within its provisions. If the relator be the agent of the corporation, and the
defendant is depriving him of the enjoyment of the right to act for his principal, that would
seem to be precluding him from the enjoyment of a right to which he is entitled. The court
has complete jurisdiction of the parties, and the power to determine which of them has the
right to the position claimed by the relator. Why may it not afford the relator the relief to
which he shows himself entitled? Admitted that the court has no jurisdiction of the
corporation, but it has of the relator, who claims the enjoyment of certain rights acquired
from the corporation. No judgment can be rendered here which will bind the corporation; this
proceeding is simply between individuals, over which the courts of this state have
jurisdiction, but who claim their rights from a foreign corporation; the source from which
they derive their rights is a matter of no consequence if the court has jurisdiction of the
individuals.
In that case the court further said: We know of no other speedy and adequate means by
which he [relator] may be placed in the enjoyment of the right which he claims, all of which
may properly be said of the case at bar, and are applicable thereto.
On the above authorities, and for the foregoing reasons, we denied the motion of
respondent to dismiss this proceeding.
The case was continued to the 18th day of May, at 10 o'clock A.M., for the purpose of
hearing any competent evidence either party might offer, and for argument by counsel.
On that day, the evidence being closed, and oral arguments made by counsel of the respective
parties, the case was submitted to the court, and time was given for the filing of briefs.
The principal questions to be determined are:
FirstHas the relator, Joseph R. Ryan, the legal right to the position of superintendent of
the Hale and Norcross Silver Mining Company?
SecondAnd if he has, is the respondent unlawfully precluding him from the enjoyment
of such right?
Although this court has no jurisdiction over the said corporation in this case, it has
jurisdiction over the parties herein, and, so far as necessary to determine the controversies
arising in this case between said parties, it has the right to and will inquire into the power of
said corporation and of its officers and stockholders, under the laws of the state of California,
and review their act and pass upon the question of their validity.
On the 10th and 17th days of March, 1897, meetings of stockholders of said company
were held at the office of said company in Room 3 of the San Francisco Stock Exchange
building, 331 Pine street, in the city and county of San Francisco, state of California, for the
purpose of electing seven directors of said company for the ensuing year, as successors of the
directors who had been elected on the 10th day of March, 1896. On the day next before the
meeting of the 10th day of March, Mr. Lynch, then a director and president of the company,
resigned both offices, and M. W. Fox was elected in his stead by the board of directors as a
director and as president of the company.
The by-laws of said company provide: The president shall preside at all meetings of the
trustees and of the stockholders. He shall have the casting vote at all meetings of the
stockholders and trustees. The by-laws do not specify any other powers of the president
respecting the meetings of the trustees or of the stockholders.
The Meeting of the 10th Day of March: At that meeting of stockholders M. W. Fox, the
president, took the chair, called the meeting to order, and directed the secretary of the
company, R. U. Collins, to call the roll, and let it be known how much stock and proxies are
here on the roll call. The roll was called, and the secretary announced the result, to wit:
"Total representation, S5,27S-3JS shares; 14,765 claimed by Mr.
roll was called, and the secretary announced the result, to wit: Total representation,
85,278-3/8 shares; 14,765 claimed by Mr. Grayson in person; 68,853-3/8 by proxy; 1830
shares of stock. Upon the said announcement by the secretary, W. T. Baggett, Esq., acting as
the attorney of the president, Mr. Fox, and the corporation, asked R. R. Grayson several
questions as to his ownership of the stock he represented. W. E. F. Deal, Esq., acting as the
attorney of R. R. Grayson and the greater portion of the stockholders, advised Mr. Grayson
not to answer said questions, upon the theory that it was not competent to go behind the
books of the company in an inquiry as to the ownership of stock at a stockholders' meeting.
Mr. Grayson refused to answer said questions.
Thereupon an order to show cause and an injunction were served upon R. R. Grayson,
which had been issued on the said 10th day of March by Superior Judge Charles W. Slack in
an action then pending in the superior court of the city and county of San Francisco, state of
California, wherein M. W. Fox was plaintiff, and R. R. Grayson and forty-five other persons
named were defendants.
As to the injunction the court's order was, to wit: And pending the hearing and
determination of this order to show cause, the defendants, their agent, servants and employees
be, and each of them is, hereby restrained and enjoined from voting any of the stock of the
Hale and Norcross Mining Company, a corporation, now standing in their names as trustees
on the books of said corporation, at the election of officers of said corporation, to be held on
the 10th day of March, 1897, or at any other time, and that they, and each of them, are hereby
enjoined and restrained from giving to any person or persons power of attorneys or proxies to
vote said shares of stock standing in their names as trustees; and that they, and each of them,
are enjoined and restrained from voting any of said stock as proxy or representative of any
other person or persons in whose names or name the said stock stands as trustee on the books
of said corporation.
Upon the service of the injunction the president declared, to wit: I declare this meeting
adjourned by order of the court. To this announcement of the president objections were
made, and an appeal taken therefrom by members of the meeting, all of which the president
ignored, and again declared the meeting adjourned by order of the court.
the meeting, all of which the president ignored, and again declared the meeting adjourned by
order of the court. Then R. R. Grayson, a stockholder of the company, nominated A. J.
McDonell, a stockholder, as chairman of the meeting, and William Bowers as secretary, who
were elected as chairman and secretary respectively, by the meeting, the president not
participating therein.
The president again announced that the meeting was adjourned, and requested those
present to go somewhere else to hold a meeting, and told them to get out of the room, and that
he wanted them to understand that they would have to hold a meeting at some other place,
and he refused to allow them the office of the company in which to continue further to hold
the meeting of the stockholders. The meeting was then adjourned by the stockholders to meet
immediately in Room 11 of the same building. Immediately after said adjournment from
Room 3, the stockholders met in said Room 11, and, upon the roll being called, stockholders
representing 86,516-7/8 shares of the capital stock answered present. All of said stock, except
2,754-1/2 shares, stood on the books of said company in the names of trustees, and it was
determined by the meeting that, by reason of said injunction having enjoined the voting of the
stock standing in the names of the trustees, no election of directors could then be held, and
the meeting adjourned to meet on the 17th day of March, 1897, at 1 o'clock P. M., in said
Room 11.
Injunction Dissolved: In the forenoon of said 17th day of March, upon due proceedings
had in said superior court in said action, said injunction was dissolved by said court, and the
court ordered, to wit: That the meeting for the election of officers of the corporation
defendant be fixed for this day, at 1 o'clock P. M., at the office of said corporation.
Adjourned Meeting of the 17th Day of March: Pursuant to the adjournment of
stockholders' meeting made by the meeting on the 10th day of March, aforesaid, the
stockholders met in said Room 11, on the 17th day of March, at 1 o'clock P. M. A. J.
McDonell, who was elected chairman of the meeting as aforesaid, being absent, G. W.
Grayson, was elected by the stockholders present as chairman of that meeting. The roll was
called, and stockholders representing S2,000 shares of said stock were present.
82,000 shares of said stock were present. The meeting then immediately adjourned to said
Room 3, the place designated by the order of the court last aforesaid as the place of meeting
to elect said directors.
At Room 3: At Room 3, on the 17th day of March, at the hour of 1 o'clock P. M., M. W.
Fox, the president, called the meeting to order, and, the roll being called, there were found to
be present stockholders, as appeared by the books of the company, representing 86,326 shares
of stock. Of this number of shares answering to the roll call, 42,890 were represented by
proxies by R. R. Grayson, and 23,436 shares were represented by holders of certificates of
stock, which certificates were duly endorsed. Upon the announcement of the result of the roll
call by the secretary, R. R. Grayson moved that the meeting do adjourn till March 18th, at 1
o'clock P. M. G. W. Grayson, a stockholder, seconded the motion. The president refused to
put said motion to the meeting, and ruled it out of order. R. R. Grayson appealed from the
ruling of the president; the appeal was seconded by G. W. Grayson; the president refused to
entertain the appeal. The motion was renewed and seconded several times by the same
parties, and the president made the same ruling, and several appeals were taken from the
rulings, which the president ignored. The president finally announced as follows: There
seems to be by the roll call 23,436-1/3 shares of stock, and also it appears from that that there
has been 62,890-3/4 by proxy. I find that the stock so presented has not been issued in
accordance with the law of 1880; also, that the proxies of 62,890 shares are not in conformity
with that law, and, as there is not a quorum of bona fide stockholders present, I now
announce this meeting now stands adjourned. R. R. Grayson then appealed from the decision
of the chair, of which the president took no notice. R. R. Grayson then moved that the
meeting adjourn to meet at Room 11 in the same building immediately. The motion was
seconded, and, being put to the meeting by Mr. Grayson, it was carried by a vote of the
stockholders representing 82,000 shares of stock. We will, further along in this opinion, note
and consider the proceedings of the stockholders' meetings held on the 17th and 1Sth days of
March at said Room 11 pursuant to said adjournment.
and 18th days of March at said Room 11 pursuant to said adjournment.
The Powers of the President: Had the president legal authority to adjourn without day
either of the meetings held on the 10th and 17th days of March, at his will alone, and against
the expressed will of the stockholders there assembled? If he had such authority to adjourn
the meeting held on the 17th day of March at said Room 3, then the subsequent meetings and
proceedings of the stockholders, had in said Room 11, are illegal. It is argued by counsel for
respondent that the president had the right to determine whether or not the stock which was
offered to be voted was such stock as could or should be voted, and that his rulings in that
respect are subject to review only by the courts in a proper proceeding brought for that
purpose, and that, at the meetings in question, the stock presented not being issued as
required by the act of the legislature of California (Stats. 1880, 131), it was the duty of the
president to adjourn said meetings. In support of the above contention counsel cites Smith v.
S. F. & N. P. Ry. Co., 47 Pac. Rep. 583. But that case is not in point or authority upon the
question of the power of the president to adjourn stockholders' meetings at his will, as that
question was not raised and was in no manner involved in that case.
Section 312 of Deering's Civil Code of California provides: * * * Any regular or called
meeting of the stockholders or members may adjourn from day to day, or from time to time,
if, for any reason, there is not present a majority of the subscribed stock, or members, or no
election had. * * * But no statute and no by-law has been cited which authorizes the
president to adjourn a stockholders' meeting without day, or to a day, against the expressed
will of the stockholders when in meeting assembled. We hold that the acts of the president in
adjourning or attempting to adjourn said meetings were illegal; that, when he refused to
preside further at said meetings, the stockholders had the right to proceed with the business of
the meetings without him; that, when the president refused to permit the meetings to be
continued in the office of the company, the meetings had the right to adjourn from Room 3 to
Room 11, and conduct their business in the latter room.
business in the latter room. To hold otherwise would be recognizing in the president of the
stockholders' meetings a right to prevent the annual election of the directors of the company,
and a right to perpetuate in office, indefinitely, at his pleasure, himself and the board of
directors of which he was chosen a member. He has no such right under any rule of law, or
under any decision of the courts. The statutes of California vest in the stockholders the right
to annually elect a board of directors of said company. This right cannot be divested by any
act of the directors themselves, much less by the president. (Elkins v. Camden and Atlantic
Railroad Co., 36 N. J. Eq. 467.)
No elective officer has a right to do any act which would prevent the election of his
successor at the time fixed by law for such election. (Curtis v. McCullough, 3 Nev., supra.)
Further citation of authority in this connection need not be made.
We find nothing in the opinion of the court in said case in 47 Pac. Rep. that supports the
contention of counsel to the effect that the president, M. W. Fox, was the sole judge, so far as
the stockholders' meetings were concerned, of the validity of the issue of the stock, of the
ownership of the stock, and of the right of persons presenting or representing it to vote the
same. In that opinion it is shown that a protest was made in the meeting of stockholders by
some member or members against receiving certain votes representing certain stock, upon the
ground that the persons in whose names the stock stood on the books of the company were
not bona fide stockholders. The chairman sustained the protest, and the proffered votes were
excluded at the election of the board of directors. No objection was taken at the meeting to
the ruling of the chairman on said protest, and his ruling must be considered as the ruling of
the meeting. An election of directors having been held, the aggrieved stockholders brought
their action under the provisions of section 315 of the code. Evidently their contention in that
case was not based on the ground that the votes were rejected by the chairman, but upon the
ground that they should not have been rejected at all by any body. The superior court certainly
did not hold that the votes were illegally excluded because they were rejected by the
chairman, but because, in the opinion of that court, the persons in whose names the stock
stood on the books were bona fide stockholders.
because they were rejected by the chairman, but because, in the opinion of that court, the
persons in whose names the stock stood on the books were bona fide stockholders. And to
our mind it clearly appears that the supreme court did not reverse the judgment of the superior
court on the ground that the chairman had the right to exclude the votes, but on the ground
that, in the opinion of the court, the persons in whose names the stock stood were not bona
fide stockholders. The question as to the power of the chairman to determine the legality of
stock, or the ownership of stock, or the right to vote it, is not discussed or considered in the
opinion of the court. No other case is cited in support of this contention.
In State ex rel. Martin v. Chute et al., 34 Minn. 135, there was involved the question of the
right of the president of a corporation, or chairman of the stockholders' meeting, to determine
the right to vote for directors of the company at the stockholders' meeting. The president had
determined that certain stock offered should not be voted, and the chairman excluded the
votes offered. The court said: We find nothing in the charter or by-laws authorizing the
president of the corporation or chairman of the meeting to determine such questions. No
other provision being made, it was for the meeting, by a vote of the stockholders, to
determine, until revised by the courts, the right claimed. The court held that the opinion
expressed by the president as to the right to vote the stock was of no more effect or binding
force than would have been a similar opinion expressed by any stockholder, and that the
person claiming the right to vote should have presented his claim to the meeting of
stockholders. We find no statute of the state of California and no by-law of the company
vesting in the president any such power as counsel claims for him.
Adjourned Meetings: Pursuant to the adjournment made from Room 3 to Room 11 on the
17th day of March, the stockholders met. G. W. Grayson presided at the meeting, and
William Bowers acted as secretary. On the roll being called stockholders representing
86,307-1/8 shares, as the same appeared on the books of the company, were present, and the
meeting adjourned to meet on the 18th day of March, at 1 o'clock P. M., at said Room 11.
at 1 o'clock P. M., at said Room 11. Pursuant to said last-named adjournment, the
stockholders met at the time and place named. G. W. Grayson acted as chairman, and
William Bowers as secretary, of the meeting. The chairman announced the adjourned meeting
to be for the purpose of electing a board of directors of the Hale and Norcross Silver Mining
Company for the then ensuing year. The roll of stockholders was called, and 88,311-7/8
shares of stock were present, of which 60,937-7/8 shares were represented by proxies, 20,949
in person, and 6,425 in stock. Thomas Cole, A. Herman, William Bowers, A. W. Moore, G.
W. Grayson, F. S. Butler, and R. R. Grayson, all being stockholders, were placed in
nomination for directors of said corporation, and elected by the unanimous votes representing
the 88,311-7/8 shares of stock. Of the said shares voted, certificates of stock representing
56,236 shares were present duly endorsed and voted by the holders thereof. This meeting, as
well as all of the others named, was attended by a large number of stockholders, and the right
of any person to vote, who answered the roll calls at the several meetings, as the
representative of any stock in person, or by proxy, as the stock appeared on the books of the
company, was not questioned by any other person claiming to be the owner of, or claiming
the right to represent the same; and, so far as we have been able to find from the evidence, no
such right was questioned by any stockholder, except the president, M. W. Fox, who
represented 210 shares of his own stock, and Frank Mahon, who had 5 shares of his own.
Legal Methods: We are of opinion that the stockholders pursued legal methods in all of
their said meetings, under the facts and circumstances disclosed by the evidence, that they
regularly convened and regularly adjourned said meetings, and that they had the legal
authority to transact any business at the adjourned meeting, held on the 18th day of March,
that they might lawfully have transacted at the original meeting, held on the 10th day of
March, in Room 3, had not the injunction been served, or that they might so have transacted
in Room 3, at the meeting held on the 17th day March, after said injunction had been
dissolved by the court, and the court had ordered the election of directors to be held on
that day at the office of the company.
and the court had ordered the election of directors to be held on that day at the office of the
company.
An adjourned meeting is but a continuation of the meeting which has been adjourned; and
when that meeting was regularly called and convened and duly adjourned, the stockholders
may, at the adjourned meeting, consider and transact any business that might lawfully have
been transacted at the original meeting. (Cook on Stock, etc., 3d ed., sec. 601, and cases
cited.)
Provisions Concerning Elections: With reference to stockholders' elections, counsel for
relator cites sections 12 and 14 of article XII of the constitution of California, and several
sections of the civil code. Said section 12 provides: In all elections for directors or managers
of corporations every stockholder shall have the right to vote, in person or by proxy, the
number of shares owned by him for as many persons as there are directors or managers to be
elected. Said section 14 provides: Every corporation, other than religious, educational or
benevolent, organized or doing business in this state, shall have and maintain an office * * *
where transfers of stock shall be made and in which shall be kept * * * books in which shall
be recorded * * * the names of the owners of its stock and the amounts owned by them
respectively. Of the sections of the code cited, section 307 provides: All elections must be
by ballot, and every stockholder shall have the right to vote in person or by proxy the number
of shares standing in his name as provided in section three hundred and twelve of this code
for as many persons as there are directors to be elected. Section 312 provides: At all
elections, or votes had for any purpose, there must be a majority of the subscribed capital
stock, or of the members represented either in person or by proxy in writing. Every person
acting therein, in person or by proxy or representative, must be a member thereof, or a bona
fide stockholder, having stock in his own name on the books of the corporation at least ten
days prior to the election. Any vote or election had other than in accordance with the
provisions of this article is voidable at the instance of absent, or any, stockholders, or
members, and may be set aside by petition to the district court of the county where the same
is held."
held. * * * Section 315 provides: Upon the application of any person, or body corporate,
aggrieved by any election held by any corporate body, the district court of the district in
which such election is held must proceed forthwith to hear the allegations and proofs of the
parties, or otherwise inquire into matters of complaint, and thereupon confirm the election,
order a new one, or direct such other relief in the premises as accords with right and justice.
The Right to Vote: Counsel for relator contends, in substance, that, under the above
provisions of the constitution and code, every person, whose name appears upon the books of
the corporation as a stockholder, must be allowed to vote by the stockholders' meetings at all
elections, when present in person or by proxy in writing, and offering to vote, and that if there
is a claim that such person is not the real owner of the stock which he has voted, or is not a
bona fide stockholder, any party aggrieved by such vote must assert such claim and seek his
remedy in the mode prescribed by section 315 of the code, and that he cannot do so
otherwise. Counsel cites several authorities to support his contention.
Counsel for respondent argues that the sections of the code and cases cited by relator's
counsel have no application to the case at bar, for the reason that a statute passed since the
adoption of the code (Stats. 1880, 131) has special reference to mining corporations, while
the code has reference only to other character of corporations, and that the statute has
established a different rule with respect to the former class of corporations from that of the
code, which has reference to corporations other than those organized for mining purposes. Of
that statute, section 2 provides: All stock in each and every mining corporation in this state
shall stand in the books of the company in all cases in the names of the real owners of such
stock, or in the name of the trustees of such real owners, but in every case where such stock
shall stand in the name of a trustee, the party for whom he holds such stock in trust shall be
designated upon the books and also in the body of the certificate of such stock.
It is admitted in this case that all of the capital stock of the Hale and Norcross Silver
Mining Company, 112,000 shares, except about 2,800 shares, stood in the names of trustees
upon the books of the company, without the names of the persons for whom the parties
were trustees being indicated in any manner, either upon the said books or upon the
certificates of stock.
tees upon the books of the company, without the names of the persons for whom the parties
were trustees being indicated in any manner, either upon the said books or upon the
certificates of stock. Counsel further argues and contends that because the stock of said
company stood as above named, and was not issued by the company as required by said
statute, there was no valid election of directors as the successors of the board from which the
respondent received his appointment as superintendent, and under which he claims the right
to the office. We cannot agree with counsel in his conclusion.
The statute of 1880 does not declare the elections void in case the stock voted for directors
does not stand on the books in the names of the real owners, or in case it stands in the names
of trustees and the names of the real owners are not designated on the books and in the
certificates. It does not provide any remedy to the aggrieved party in case a vote or election is
had other than in accordance with the provisions of that act. Then, in case such vote or
election is had, where must the aggrieved party look for a remedy? Counsel for respondent
says, in effect, that when the president rejected the stock offered to be voted at the said
meetings of the stockholders, if he was in error the remedy must be sought by an appeal to the
courts under the provisions of section 315 of the code. But the remedy provided by that
section is only available when a vote or an election has been had. He admits by his argument
that section 315 is applicable to mining corporations to correct the rulings of the president, if
any party is aggrieved thereby. We are of opinion that sections 312, 315, and other sections of
the code, are also applicable to mining companies, and to elections held by them.
If we are correct in this opinion, what must be the correct conclusion as to the validity of
the election had on the 18th day of March, 1897? Under section 312 a vote or election had
other than in accordance with the provisions of law is not void, but voidable only at the
instance of stockholders or members, and may be set aside only by petition to the district
court of the county where the election is held, and by the supreme court on appeal, under
other provisions of the code.
the code. Until that election is declared to be void by the courts of the state of California, we
must hold it to be valid.
A number of points and questions were raised and discussed by respective counsel which
we do not think are necessary to be considered, under our view of the case. The affidavit of
the relator being sufficient in averment, and the material averments being sustained by the
proofs, we are of opinion, in consideration of the law applicable to this case, the facts and
circumstances disclosed, and for the reasons above given, that the relator, Joseph R. Ryan,
has the legal right to the position of superintendent of said company, and that he is unlawfully
precluded from the enjoyment of such right by the respondent.
The writ of mandamus must issue as prayed for, and it is hereby so ordered.
____________
23 Nev. 459, 459 (1897) Folsom v. Marlette
[No. 1481.]
G. N. FOLSOM, Respondent, v. S. H. MARLETTE,
Appellant.
PartnershipAccountingBookkeepingLiability of Partner.On an accounting between partners the mere
fact that certain checks drawn by one of them were never entered on the books, does not charge him with
the amount, where the firm had an employee whose duty it was to correctly keep the books and accounts.
One member of a firm cannot be charged with mistakes which may have been made in bookkeeping.
IdemLiability of PartnersConflict of EvidencePresumptions.Appellant contends that respondent, in
violation of an agreement between them as partners, sold goods to a certain party without a guarantee of a
third party for the payment of the account, and that thereby the firm sustained a loss, which loss the
respondent should be held liable for: Held, that the testimony being directly conflicting, the district judge,
by disallowing the claim, must impliedly have found in favor of respondent upon this point.
IdemAdvancement for Benefit of FirmInterest.A trading firm had no capital, and had been in the habit of
paying interest at its banker's on overdrafts for a long time. After it had discontinued business, and just
before dissolution, one of the partners paid a certain amount to the firm's creditors. On an accounting
between the partners, it did not appear that the money was not paid with the knowledge and acquiescence
of the other member: Held, that it was an advancement for the benefit of the firm, and hence drew interest.
IdemUnder Stipulation, Right to Show True Value of Property Charged.It appeared that respondent, with
the consent of appellant, had appropriated firm property, and charged himself for it upon the books of the
firm. It was stipulated that a transcript of the books should be treated as correct, except as to those items
designated disputed, and such charge was disputed by appellant as being too small: Held, that by reason
of appellant disputing the value of the items, the question of the value of the property was reopened, and
respondent had the same right to establish a lesser value that appellant had to establish a greater.
IdemProperty Appropriated by One Member of FirmInterest.In an accounting between partners, where it
is shown that one of the firm, prior to the dissolution of the partnership, is allowed to take firm property,
the other partner is allowed interest upon the value of the property from the date of its appropriation by the
other.
IdemCompensation for Services of Partner.One partner cannot charge the other compensation for his
services, without special agreement.
District Judge:
Suit by G. N. Folsom against S. H. Marlette. From a judgment in favor of plaintiff, and
from an order denying a new trial, defendant appeals. Modified and affirmed.
Robt. M. Clarke and T. W. Healey, for Appellant:
I. The action is for an accounting of the copartnership business of Marlette & Folsom. The
pleadings and the evidence show that plaintiff and defendant entered into copartnership in the
wood and logging business and general merchandising, at Incline, Washoe county, Nevada, in
September, 1880, and continued in such copartnership and business until May 27, 1890, when
the copartnership was dissolved. The partners were to share equally the profits, and bear
equally the losses. There was no agreement or understanding as to who should manage the
business; both gave it personal attention.
II. There was no agreement or understanding that either should be paid wages for services
rendered the company. The partnership agreement makes no provision for wages.
III. The charges for services were entered on the books, but Marlette had no knowledge of
such charges, or any claim for wages, till 1887, when he promptly denied the claim.
Marlette makes no charge or claim for compensation for his services.
IV. For services rendered by the copartners in the business of the copartnership no
compensation can be charged unless specially agreed upon. Each partner owes it to the firm,
as a duty incident to and resulting from the partnership agreement, to give his attention and
services to the business of the firm. (Parsons on Part., 4th ed., sec. 155, p. 200; Hanks v.
Barber, 53 Ill. 292; 1 Johns. Ch. 157, 165; 7 Paige, 483, 493-4; 16 Ill. 37; Legarie v.
Peacock, 109 Ill. 94, 102, 103; 118 Mass. 239; McBride v. Stradley, 103 Ind. 465; Lindley on
Part., vol. 1, 2d ed., p. 380; 34 Conn. 366; 19 Pa. St. 516; 41 Pa. St. 133; Story on Part., 7th
ed., sec. 182, p. 304; Collyer on Part., sec. 183; Heath v. Waters, 42 Mich. 457-465; Phillips
v. Turner, 2 Dev. & Bat. Eq. 123; Cunliff v. Dyerville Co., 7 R. I. 325; Burgess v. Badger,
124 Ill. 288-301.)
V. Folsom, for Marlette & Folsom, having trusted Valenzuela for merchandise, contrary
to the express understanding that Valenzuela should not be trusted, except upon Captain
Overton's promise to see this bill first paid, and a loss having been made, Folsom should be
charged with the loss. The law is well settled that where one partner sells the goods of the
firm, contrary to the agreement, or against the objection, of the other partner, and a loss is
made, the loss must be borne by the partner whose conduct occasioned the loss. (Fox's Digest
of Part., p. 252; Parsons on Part., 4th ed., sec. 151; Story on Part., 7th ed., sec. 171; Lindley
on Part., pp. 783-784, and cases cited; Foster v. Goddard, 1 Black, 510; Bidwell v. Madison,
10 Minn. 14; 6 N. J. Law, 434; 27 Ala. 245.)
VI. In July, 1889, after the partnership was dissolved, Folsom took and appropriated to his
separate use certain stock and other personal property of the firm. Marlette consented to this
appropriation, but the price was not agreed upon. The property was charged to Folsom on the
books of the company at $7,717 17; the charge was made at Folsom's instance by Ernest
Folsom, his son. In November, 1888, the stock and other property taken by plaintiff Folsom,
not including the Yandell team, was inventoried and valued by E. B. Folsom and G. N.
Folsom at $9,558 85, $1,841 68 more than the price at which the same is charged in the
books and statement rendered.
than the price at which the same is charged in the books and statement rendered.
VII. The court, in its decision, disregards the charge made by plaintiff against himself, and
the statement made and rendered by him fixing the amount at $7,717 17, and debits plaintiff
with $5,000 only, thus reducing the item $2,717 17 below the sum which plaintiff had
charged himself with, and which he had rendered in a statement rendered and put in evidence
in this case.
VIII. The plaintiff, having appropriated the stock, etc., fixed the price thereof, charged
himself with it, and rendered an account of the amount and value to defendant, cannot, now
that the stock has disappeared and can no longer be seen and valued, be permitted to question
the price so fixed and accounted for by him.
IX. Plaintiff claims large sums of money for interest, both simple and compound, on
money claimed to have been paid by him for the use and benefit of the company, and on
balances claimed to be due him from the company, but interest is not chargeable for balances
due members of the copartnership unless expressly agreed to. (Parsons on Part., 156, 229; 8
Dana, 214; 24 Conn. 185; Desha v. Smith, 20 Ala. 747; 1 Lindley on Part., pp. 389-390, sec.
391, p. 925; Moss v. McCall, 75 Ill. 190; 80 Pa. St. 139; 39 Cal. 655; Gillman v. Vaugh, 44
Wis. 646; Gage v. Parmalee, 87 Ill, 330; Brown Estate, 11 Phil. 127; McKay v. Overton, 65
Tex. 82; McCall v. Moss, 112 Ill. 493; Sweeney v. Neely, 53 Mich. 421.)
X. There was no ascertainment of balance in this case, and no agreement to pay interest,
either written or oral. For this reason the claim of interest should have been disallowed. (Moss
v. McCabe, 75 Ill. 190; 89 Pa. St. 139; Tyrrell v. Jones, 39 Cal. 655; Lindley on Part., pp.
389-90.)
I. If an agreement for wages can be implied from the course of dealing among partners, or
from the nature of the services performed, the partner is entitled to compensation. (1 Lindley,
sec. 380; Mann v. Flanagan, 9 Or. 429; Cramer v. Bachman, 68 Mo. 310; Morris v. Griffin,
49 N. W. 846; 3 S. W. 5S9; Adams v. Warren, 11 So.
S. W. 589; Adams v. Warren, 11 So. Rep. 754; 64 Wis. 118; 7 Paige, 483.)
II. There is no established rule as to the allowance of interest between partners. The
circumstances of each particular case must determine. (Gyger's Appeal, 62 Pa. St. 73; Parsons
on Part., 4th ed., p. 203; Morris v. Allen, 14 N. J. Ch. Rep. 44; 1 Lindley, 389; Beck v.
Thompson, 36 Pac. Rep. 562.)
III. A partner is entitled to interest on moneys advanced by him to pay the debts due by the
firm after its dissolution. (Callander v. Phelan, 79 N. Y. 369.)
IV. The largest item in dispute between plaintiff and defendant is that referred to all
through the testimony as goods, second-hand tools, live stock, etc., taken from Incline to
Hobart, by G. N. Folsom in the year 1889, which property belonged to the copartnership. G.
N. Folsom, plaintiff in this action, took said property, charged himself with the same in the
sum of $7,717 17 on the books of Marlette & Folsom, and also credited Marlette & Folsom
upon said copartnership books with the amount, he believing and considering this to be a fair
and reasonable price for the property so taken. The defendant, however, claims that this
identical property was worth the sum of $4,664 36 more than the amount allowed for it by the
plaintiff, and in his testimony states that he never agreed to accept this price, and that as yet
no agreement has ever been arrived at between himself and plaintiff as to the value of this
stock, second-hand tools, etc.
V. If, as defendant testifies, he did not accept plaintiff's valuation, and there was no
aggregatio mentium between plaintiff and defendant, then the true valuation would be what
was the reasonable value of the property at the time it was taken by plaintiff from Incline to
Hobart in the year 1889.
VI. The plaintiff claims that the sum of $2,100 is due him as wages, compensation
charged the company by him in the years 1885, 1887 and 1888. The testimony in this case
shows that there was no express agreement between the partners that plaintiff should receive
compensation for his services in the management and control of the business, but the
testimony does show that there was an implied agreement that plaintiff should receive
monthly compensation.
testimony does show that there was an implied agreement that plaintiff should receive
monthly compensation.
This is a suit for an accounting between partners, in which each demands a balance due
from the other. The partnership was formed on the 29th day of September, 1880, and
continued until the 27th day of May, 1890, when it was dissolved. Its business was that of
contracting for the cutting of cord wood and logs, and the sawing of timber, to which the
business of merchandising was subsequently added. They were equal partners. The district
court ordered judgment in favor of respondent for the sum of $6,540 49. From the judgment
and an order refusing a new trial, defendant has appealed.
The assignment of errors will be considered seriatim.
1. Wells, Fargo & Co. Account: Between February 24, 1885, and the month of October
following checks aggregating the sum of $1,300 were drawn upon and paid by the banking
house of Wells, Fargo & Co. of San Francisco, of which the books of the firm made no
mention. Appellant contends that respondent is chargeable with this amount upon the theory
that he drew the checks. Conceding, for the purpose of the case, that respondent drew the
checksalthough the district court expressly failed to find the factit does not follow that
he is responsible to appellant for the amount. During the business season of each year the
firm employed a bookkeeper, whose duty it was to correctly keep the books and accounts.
This person was not the servant of the respondent only, but of the firm, and any errors or
mistakes made by him were not chargeable to one member of the firm only, unless under
special circumstances not existing here.
2. Herbert Account: In the month of August, 1889, appellant received the sum of $550 in
part payment of an account against one Herbert. The amount was credited to the account, and
cash debited on the journal and petty ledger. Appellant contends that respondent should be
charged with the sum. The failure to properly charge these payments may be attributable to
some innocent cause, as no suggestion of improper conduct has been hinted at.
of improper conduct has been hinted at. Respondent, as before said, cannot be charged with
mistakes which may have been made in bookkeeping.
3. Valenzuela Account: The firm sold goods to Valenzuela and sustained a loss of about
$1,250 upon the account. It is claimed by appellant that Folsom agreed with Marlette that the
goods should not be sold to the debtor without a guarantee of a third party for the payment of
the account, and that afterwards the goods were sold without such guarantee, and a loss
occurred in consequence. This contention is answered by the fact that the testimony is directly
conflicting, and the district judge, by disallowing the claim, must impliedly have found in
favor of respondent upon this point.
4. Respondent paid to the creditors of the firm, after it had discontinued business, a short
time prior to its dissolution, the sum of $16,747 72. The district court allowed interest upon
this sum amounting to the sum of $7,224 06. The money thus paid is properly treated as an
advancement for the benefit of the firm. Lindley, in his work upon Partnership, says: An
advance by a partner to a firm is not treated as an increase of his capital, but rather as a loan,
on which interest ought to be paid; and, by usage, interest is payable on money bona fide
advanced by one partner for partnership purposes, at least when the advance is made with the
knowledge of the other partners. (Vol. 1, p. 390.) The propriety of this charge admits of no
question. The firm had no capital. It had been in the habit of paying interest at its banker's
upon overdrafts for a long time. Appellant has not suggested in his testimony that this money
was not advanced with his knowledge and acquiescence. Under these circumstances the
charge of interest is equitable. (Baker v. Mayo, 129 Mass. 517; Morris v. Allen, 14 N. J. Cl.
44; Berry v. Folkes, 60 Mass. 576; Collender v. Phelan, 79 N. Y. 366.)
5. On or about the 29th day of July, 1889, respondent, with consent of appellant,
appropriated certain personal property belonging to the firm to his own use, charging himself
therefor with the sum of $7,717 17 upon the books of the firm. There had been no agreement
touching the valuation to be fixed on the property, and, upon the trial, under the terms of a
stipulation filed in the case by counsel, appellant objected to the price so fixed by
respondent.
terms of a stipulation filed in the case by counsel, appellant objected to the price so fixed by
respondent. This stipulation, among other things, provided that a transcription of the firm
books, that had been introduced in evidence, should be treated as a correct transcription, and
as to all items and all balances appearing in said transcription, opposite to which is a red
cross, such items and balances are disputed by defendant, S. H. Marlette. Accordingly,
appellant, Marlette, did cause an X in red ink to be set opposite this item, thus indicating
that he contested the valuation placed upon the property by the respondent, Folsom. Evidence
was introduced touching the value of the property, and the fact was also shown that
respondent had charged himself with $7,717 17 for it. Upon all of the testimony introduced
the court found as a fact that the value of the property was $5,000, and charged the
respondent with that sum in the adjustment of the accounts. Appellant claims that respondent
should be concluded by the value fixed by himself upon the books of the firm, and therefore
respondent should have been charged with $2,717 17 more than the value fixed by the
findings. It must be stated, as a matter of fact, that there was no objection to the introduction
of testimony tending to establish a lower valuation than the charge made by the respondent.
Appellant must have expected that the district court would have placed a greater valuation
than that which the respondent had charged himself, otherwise there was no reason for the
objection being taken. When the contest upon the charge was inaugurated by the appellant,
under the peculiar circumstances of the case, the question of the value of the property was
reopened, and respondent had the right to establish a lesser value as the appellant to establish
a greater value. He took the risk and must abide the result. As the respondent has been
allowed interest upon the advance he made for the benefit of the firm, it is only equitable that
the appellant should be allowed interest upon the value of this property, fixed at $5,000, from
the date of its appropriation by respondent.
6. Wages: Appellant absented himself from the locality where the firm operated a
considerable portion of the time. Respondent charged him for his services for a portion of the
time.
time. The first item of this nature was charged during the winter of 1882-3, and amounted to
the sum of $300. No contention is made touching this charge. During the year 1885, $1,050
was charged. The court allowed this charge, after having deducted the charge for wages
during the month of July of that year. The general rule undoubtedly is that one partner is not
entitled to charge the other compensation for his services without special agreement. There
was no special agreement in this case, and the majority of the court are in favor of the
enforcement of this rule. One member of the court, however, dissents from this view, holding
that as these charges were made during the course of business, that as the books were
accessible to appellant, and that a statement containing these charges was delivered to him
upwards of two years prior to the dissolution of the firm, and no objection having been made
then, or afterwards, until this proceeding was commenced, he should be deemed to have
acquiesced in the charge. The charge will be stricken out.
The case will be remanded to the district court, with instructions to modify its judgment by
disallowing respondent the $1,050 allowed as wages, and to allow him simple interest at the
rate of 7 per cent per annum, instead of 10 per cent per annum, upon the advances made by
him after they had ceased to do business together, and also allow appellant the same interest
on the $5,000, the value of the property, from July 29, 1889. Under the circumstances of the
case, the costs in the district court should not be allowed respondent; and that court will also
correct its judgment by ordering each party to pay his own costs; the judgment, as corrected,
to bear legal interest from date of original entry.
The judgment thus modified and corrected is affirmed; each party to pay his own costs
upon this appeal.
____________
23 Nev. 468, 468 (1897) State v. Westerfield
[No. 1501.]
STATE OF NEVADA, ex rel. FLORENCE M. KEITH, Relator, v. W. J. WESTERFIELD,
State Treasurer, Respondent.
Constitutional LawGeneral School FundPay of Teachers in State Orphans' Home.Sections 2 to 6 of
article XI of the constitution provide that the legislature shall provide for a uniform system of common
schools, by which a school shall be established and maintained in each school district six months in each
year; that the proceeds derived from designated sources are pledged for educational purposes, and shall
not be transferred to any other fund for other uses, and shall be, from time to time, apportioned among the
counties; that the legislature shall provide for the investment of all proceeds derived from said sources in
certain kinds of bonds; that the interest only shall be used for educational purposes, and any surplus shall
be added to the principal sum; provided, that such portion of said interest, as may be necessary, may be
appropriated for the support of the state university; that the legislature shall establish such university, and
may establish normal schools and such different grade of schools, from the primary department to the state
university, as it deems necessary; and that it shall provide a special tax, not exceeding two mills, in addition
to the other means provided, for the support of said university and common schools: Held, that the wards of
the state at the orphans' home are not included in the general school system of the state, and that no part of
the general school fund can be appropriated to pay teachers at the state orphans' home, and that section 34
of the statutes of 1897 (page 82), in so far as it attempts such appropriation, is void.
IdemStatute, Unconstitutional in Part, Not Entirely Void.A law passed by the legislature, constitutional in
part, but unconstitutional as to some of its provisions, will be sustained so far as it is constitutional, unless
the whole scope and object of the law is defeated by rejecting the objectionable features.
IdemPay of Teachers at Orphans' HomeGeneral Fund of State.Section 1 of the statutes of 1897 (page 82)
provides that the following sums are appropriated for the purposes hereinafter named, and for the support
of the state government for the fiscal years 1897 and 1898: For the salary of the governor, $8,000. Forty
other sums are named for as many purposes, without designing any fund. Section 34 reads: For the salary
of one teacher and one assistant teacher at the state orphans' home, $2,400, payable out of the general
school fund: Held, that, though the last clause of section 34 is in conflict with the constitution and void,
the remainder of the section is not affected by such fact, and makes a valid appropriation out of the
general fund in the state treasury.
Original Proceeding. Application by the State, on the relation of Florence M. Kieth, for a
writ of mandamus to compel W. J. Westerfield, State Treasurer, to pay a warrant in relator's
favor, drawn by the State Controller.
J. Poujade and G. W. Keith, for Relator:
I. The primary object of our constitution in regard to education is to provide an education
for all the children of the state. It excludes no class. The very foundation of our system of
government is the equal treatment of all.
II. The children may be divided into classes, as for age, sex, color or other conditions. No
class can be excluded. Necessarily the orphans have been separated into a class, and a class in
which they cannot receive their portion of the school funds in the ordinary way. (Stoutmeyer
v. Duffy, 7 Nev. 342; State v. Dovey, 19 Nev. 396.)
III. The school at the orphans' home is a common school in the constitutional sense. If the
convention failed to specify it by name, it was merely in order that the legislature might
provide for it as the exigencies of the case might require, or else it was such an omission as
the legislature should supply.
IV. Section 5 of article XI of the constitution provides for every kind of school in whose
benefits the whole people participate. This is such a school.
Wm. Woodburn, A. J. McGowan and James R. Judge, Attorney-General, for Respondent.
I. No part of the money of the general school fund of the state treasury can be used for the
payment of salaries of teachers in the state orphans' home. (State v. Dovey, 19 Nev. 396.)
II. The money in the general school fund can only be used for purposes connected with the
educational system of the state. (Const. Nev., sec. 3, art. XI; State v. Dovey, 19 Nev. 396.)
III. The school at the state orphans' home is no part of the educational system of the state, nor
was it intended to be. The management provided therefor is distinct and separate from the
educational department of the state. It is not under the control of the superintendent of public
instruction, the superintendent of public schools in the county in which it is situated, nor is it
subject to control or supervision other than that provided by the legislature in placing it in
charge of the board of directors of the state orphans' home, which board is in no manner
or way connected with the educational system of the state.
charge of the board of directors of the state orphans' home, which board is in no manner or
way connected with the educational system of the state. (In re Malone's Estate, 21 S. C. 451;
People v. Board Education Brooklyn, 13 Barb. 410; Atkin v. Lamkin, 56 Miss. 764.)
The relator brings this action to compel, by writ of mandamus, the respondent, as state
treasurer, to pay a certain warrant drawn in her favor by the state controller for the sum of $45
in payment of her salary for the month of April last, as assistant teacher at the state orphans'
home. The warrant was drawn on, or made payable out of, the general school fund, pursuant
to the terms of the act making an appropriation for the payment of the salaries of the teachers
at said home, passed at the last session of the legislature. (Stats. 1897, 82.)
The question of the constitutionality of said appropriation is raised by the pleadings. The
contention of counsel for respondent is, in effect, that the moneys belonging to the general
school fund, in contemplation of the constitution, can be used only for the support of the
common schools and the state university, and not for any purposes of the state orphans' home.
Counsel for relator argues to the effect that, as the constitution pledges these moneys for
educational purposes for the benefit of all the children of the state, the appropriation of a due
proportion of it for the payment of the teachers at the state orphans' home is permissible under
the terms of the constitution; that such use of it is applying it to educational purposes, and
that no child can be properly deprived of the benefits of said moneys by reason of its being
placed in said home, and that the educational department of said home may properly be
considered a part of the common school system.
As we view the terms of the constitution, and the former decisions of this court, we do not
think the above contention is tenable, on the part of relator.
Article XI of the constitution provides that the legislature shall provide for a uniform
system of common schools, by which a school shall be established and maintained in each
school district at least six months in every year"; that the proceeds derived from certain
designated sources "shall be, and the same are hereby, solemnly pledged for educational
purposes, and shall not be transferred to any other fund for other uses, and shall be, from
time to time, apportioned among the counties"; that the legislature shall provide for the
investment of all proceeds derived from any of said sources in certain kinds of bonds;
"that the interest only of the aforesaid proceeds shall be used for educational purposes,
and any surplus interest shall be added to the principal sum; provided, that such portion
of said interest as may be necessary may be appropriated for the support of the state
university"; that the legislature shall provide for the establishment of a state university,
which shall embrace departments for agriculture, mechanical arts and mining; that the
legislature shall have power to establish normal schools and such different grades of
schools, from the primary department to the university, as in their discretion they may
deem necessary, and that the legislature shall provide a special tax, which shall not
exceed two mills on the dollar of all taxable property in the state, in addition to the other
means provided for the support and maintenance of said university and common schools.
each school district at least six months in every year; that the proceeds derived from certain
designated sources shall be, and the same are hereby, solemnly pledged for educational
purposes, and shall not be transferred to any other fund for other uses, and shall be, from time
to time, apportioned among the counties; that the legislature shall provide for the investment
of all proceeds derived from any of said sources in certain kinds of bonds; that the interest
only of the aforesaid proceeds shall be used for educational purposes, and any surplus interest
shall be added to the principal sum; provided, that such portion of said interest as may be
necessary may be appropriated for the support of the state university; that the legislature
shall provide for the establishment of a state university, which shall embrace departments for
agriculture, mechanical arts and mining; that the legislature shall have power to establish
normal schools and such different grades of schools, from the primary department to the
university, as in their discretion they may deem necessary, and that the legislature shall
provide a special tax, which shall not exceed two mills on the dollar of all taxable property in
the state, in addition to the other means provided for the support and maintenance of said
university and common schools.
The educational system of this state consists of the above-named departments of
education, and the above provisions are made for the support of this system, or these
departments.
In State v. Rhoades, 4 Nev. 312, the court held that section 3 of article XI of the
constitution prohibits the legislature from using the funds arising from the sale of the public
lands, which were granted for educational purposes, for any other branch of state expenditure,
except that immediately connected with the educational system, but (that) it does not prohibit
the use of a part of the trust estate for the purpose of making the rest available.
The above construction of said section 3, that the legislature is prohibited from using the
funds arising from the sale of lands which were granted for educational purposes for any
other branch of state expenditures, except that immediately connected with the educational
system, except, etc., is applicable to all moneys arising from the proceeds from the several
sources named in said section, whether it be principal or interest, as all such moneys or
funds are, by the same terms, included in the prohibition.
several sources named in said section, whether it be principal or interest, as all such moneys
or funds are, by the same terms, included in the prohibition.
In State v. Dovey, 19 Nev. 396, the court held: In the apportionment of the school fund as
required by the constitution (art. XI, sec. 3) the wards of the state at the orphans' home should
not be counted as a part of the children of Ormsby county, as their education is provided for
by the state orphans' home, and they have not the right to attend the public school.
It was clearly the opinion of the court in that case that the educational department of the
state orphans' home was foreign to the educational system of the state, as provided for by said
article XI; that the apportionment of the school moneys required by the constitution to be
made among the several counties could in no manner be affected by anything pertaining to
said home, and that the wards of the state in said home had no interest in said moneys, and
that they could not be considered in connection therewith. The court said: The controlling
thought was to give to each county an equal sum for each child in the county entitled to attend
and enjoy the public schools; that the children in the orphans' home were not entitled to
attend the public schools; that they are no tax upon the public school fund; that the school is
not affected by them. It would be the same if they did not exist, or if they resided in a foreign
country.
It is true that if a portion, or all, of these moneys were appropriated to the education of the
children in said home, it would be applying them to educational purposes; but the constitution
does not include the education of these children in the term educational purposes. The
constitution requires the interest derived from the said several sources to be apportioned
among the counties, except such part as the legislature may deem necessary for the support of
the state university. The special tax required to be levied as above named is for the support of
said university and common schools. The said interest, and the proceeds of said tax,
constitute the general school fund. Then, certainly, no part of this fund can be used to pay the
warrant of relator in question, without disregarding the mandates of the constitution.
question, without disregarding the mandates of the constitution.
We are of opinion, upon reason and the above authorities, that the appropriation made by
the legislature for the payment of the salaries of the teachers at the state orphans' home, in so
far as the same is made payable out of the general school fund, is unconstitutional, null and
void, and it follows that the warrant in question, in so far as it is made payable out of said
fund, by the terms thereof, is null and void. But it does not follow that said appropriation or
said warrant, or either of them, is otherwise null and void. We hold that the legislature has
made a valid appropriation for the payment of the salary in question, and that the same is
payable out of the general fund in the state treasury the same as the salary of the governor and
most of the other state officers, and the same as other appropriations in which no specific
fund is named. Section 19 of article IV of the constitution provides: No money shall be
drawn from the treasury but in consequence of appropriations made by law. It will be
observed that it is not required that the fund out of which the appropriations are to be made
shall be named in the appropriation act. Usually, if not always, other acts, or the constitution,
show what fund the money appropriated is to be drawn from.
Section 1 of the said act of 1897 appropriates various sums for different purposes. It reads:
The following sums of money are hereby appropriated for the purposes hereinafter named,
and for the support of the government of the state of Nevada for the fiscal years of 1897 and
1898, and then follows: For the salary of the governor, eight thousand dollars, and forty
other sums are named for as many different purposes without designating any fund.
Sec. 34. For salary of one teacher and one assistant teacher at the state orphans' home,
twenty-four hundred dollars ($2,400), payable out of the general school fund.
The last clause of this section is null and void, for the reasons hereinbefore given. But it
does not invalidate said section 1, nor the balance of said section 34.
Cooley, in his Constitutional Limitations, says: It will sometimes be found that an act of
the legislature is opposed in some of its provisions to the constitution, while others,
standing by themselves, would be unobjectionable.
in some of its provisions to the constitution, while others, standing by themselves, would be
unobjectionable. * * * Where, therefore, a part of a statute is unconstitutional, that fact does
not authorize the courts to declare the remainder void also, unless all the provisions are
connected in subject-matter, depending on each other, operating together for the same
purpose, or otherwise so connected together in meaning, that it cannot be presumed the
legislature would have passed the one without the other. The constitutional and
unconstitutional provisions may even be contained in the same section, and yet be perfectly
distinct and separable, so that the first may stand, though the last fall. See cases cited by
Cooley. If a law be passed by the legislature, constitutional in part, but unconstitutional as to
some of its provisions, that which is constitutional will be sustained, unless the whole scope
and object of the law is defeated by rejecting the objectionable features. (State v.
Eastabrook, 3 Nev. 173; Evans v. Job, 8 Nev. 322; Rosenstock v. Swift, 11 Nev. 129.) The
numerous other authorities which hold to the same effect need not be cited.
It seems to us that it cannot be reasonably inferred that the appropriation for said salaries,
and the designation of the fund out of which the same should be paid, are so dependent on
each other that the legislature would not have made the appropriation without making the
salary payable out of said fund. The main object of the legislature was to provide for the
payment of said salary, and, for some reason, they thought it advisable to have the payment
made out of that fund. It is evident to our mind that the legislature would have as readily
made the appropriation out of the proper fund if it had occurred to the members that it could
not properly be made out of the general school fund.
We therefore conclude that there is a valid appropriation made for the payment of said
salary out of what is known as the general fund in the state treasury, and that it is the duty
of the state treasurer, the respondent, to so pay said salary and said warrant.
We understand that the respondent objects to paying said warrant out of the general school
fund, and was not aware that he could pay it out of any other fund under the terms of said
appropriation.
of said appropriation. We do not deem it necessary to make any order in this case at this time,
as the respondent will undoubtedly pay said warrant as indicated in this opinion.
____________
23 Nev. 475, 475 (1897) Alexander v. Winters
[No. 1496.]
E. L. ALEXANDER, Appellant, v. THEODORE WIN-
TERS, et al., Respondents.
CorporationContract of PromotersRatification.The responsibility of a contract, made by promoters of a
corporation, if it be within the corporate powers of the corporation, may, when the corporation is
organized, be expressly or impliedly assumed or ratified, and thus made a valid obligation of the
corporation.
Estoppel.A person cannot accept and reject the same instrument, or, having availed himself of it as to part,
defeat its provisions in any other part.
DamagesWater and WatercoursesReservoirFlooding LandsRight of Owner to Redress for Injury to
PropertyEstoppel.In an action for damages caused by defendants opening the gates of a dam, thereby
causing a creek to flood plaintiff's land, it appeared that the dam was built by a ditch company, under an
agreement between the promoters and one of the defendants that the dam should not raise the waters above
the level of the lake at high-water mark, and that he should have the absolute control of the flood-gates and
waterways at all times, and also control of the flood-gates and waste ways of said dam at any time after the
1st of July in each year; that plaintiff, acting as the agent of her immediate grantor, was one of such
promoters, and had knowledge of such agreement, and participated in the proceedings of such corporation;
that, at the time of the injury complained of, she was a stockholder of the company; that the corporation
ratified such contract, and such defendant exercised the rights given him by it from the time the dam was
constructeda period of seven years; and that the flooding of plaintiff's lands was caused by his opening
the gates of the dam, as he had a right to do under such contract: Held, that plaintiff could not recover.
District Judge:
Action by E. L. Alexander against Theodore Winters and others. From a judgment in favor
of defendants, plaintiff appeals. Affirmed.
Trenmor Coffin and Curler & Curler, for Appellant:
I. The court found that defendants' dam was completed in 1889, and before plaintiff
acquired the lands where the injury occurred. The court must have overlooked the facts that,
by the testimony of the witnesses on both sides of the case, plaintiff and her grantors
have owned, occupied and irrigated the land upon which the injury occurred ever since
the year 1S60; that plaintiff has resided upon or near the land and had charge and control
of it, either as owner, or as agent of her immediate grantor, Wm. M. Candler, her
brother-in-law, for more than ten years; that whatever rights her grantors had plaintiff
succeeded to by her purchase of the land; that both plaintiff and her grantor, W. M.
Candler, by and through plaintiff as his agent always, since soon after the completion of
the dam of defendants, have protested against the discharging of the stored waters from
the dam in such quantities as to cause injury to the land in question.
that, by the testimony of the witnesses on both sides of the case, plaintiff and her grantors
have owned, occupied and irrigated the land upon which the injury occurred ever since the
year 1860; that plaintiff has resided upon or near the land and had charge and control of it,
either as owner, or as agent of her immediate grantor, Wm. M. Candler, her brother-in-law,
for more than ten years; that whatever rights her grantors had plaintiff succeeded to by her
purchase of the land; that both plaintiff and her grantor, W. M. Candler, by and through
plaintiff as his agent always, since soon after the completion of the dam of defendants, have
protested against the discharging of the stored waters from the dam in such quantities as to
cause injury to the land in question.
II. The court also found that by contract between the reservoir company and Theodore
Winters, made and recorded in 1889, the reservoir company, in order to secure certain
necessary rights of overflows, obligated itself to reduce the water in the lake to a certain level
in the fore part of July of each year. This finding is against all the record and oral testimony
introduced by either side. The contract referred to is set out in the separate answer of
defendant, Theodore Winters. It was executed by certain individuals on May 18, 1889, more
than four months before the defendant reservoir company was in existence. The reservoir
company was incorporated September 5, 1889.
III. Neither plaintiff, nor her grantors, nor the defendant reservoir company, was ever a
party to this contract, and neither ever ratified it. Neither plaintiff, nor her grantors, had notice
of this written contract, or of its contents, until about July, 1896, when it was made an excuse
for the damage that was being inflicted upon her.
IV. The corporation defendant never acquired, by conveyance or otherwise, any of the
rights of any of the parties to that contract. On the contrary, it appears that all of the
incorporators and stockholders and officers of the corporation intended to free it absolutely
from all connection with, and entanglements under, that contract. This appears from the
contract, and from the records offered in evidence, and from the testimony of John Wright,
the secretary of the company.
This contract shows that Winters agreed to give the other parties to it certain rights to dig a
ditch across his land and build a dam across the outlet of Little Washoe Lake for the purpose
of storing water. The contract is dated May 18, 1889. On May 25, 1889, all the signers of the
contract, except Winters, filed and had recorded a notice of location of a water right and
ditch. On August 17, 1889, the same parties filed and had recorded a notice of location of
Washoe Lake as reservoir site, and also a claim of all unappropriated waters of streams
emptying into the lake, and also the waters of Brown's Creek and Galena Creek mentioned in
the prior location and in their contract with Winters. On September 5, 1889, the day the
incorporation was formed, these locators, and the signers of the Winters contract, deeded
back to Winters all of their rights acquired under their prior locations, leaving Winters the
owner of all the rights which it might have been supposed would have been conveyed to the
corporation. No one has ever conveyed anything to the corporation, and it has never in any
way connected itself with the Winters contract, nor bought any of its stockholders in any way
in privity with the contract.
V. The only documents or writings plaintiff was bound by were the articles of
incorporation and the by-laws of the company. The only object of the corporation, as
disclosed by these documents, was the storage of water for irrigation. They contained no
reference to any intention to discharge the water from the reservoir at any other time, or in
any other manner, or in any other quantities, than were necessary for the proper irrigation of
the lands below the dam. If plaintiff was a stockholder of the company, or an officer of it, and
the company violated or exceeded any of its rights or its duties, to her damage, it became
liable to her, and she can maintain an action against it for such damage. (O'Connor v. North
Truckee Ditch Co., 17 Nev. 245; Perry v. City of Worcester, 72 Mass. 544; Barnstead v.
Empire Mfg. Co., 5 Cal. 229; Henderson v. San A. R. R. Co., 17 Tex. 560; 67 Am. Dec. 675,
and numerous cases cited.)
VI. If the contract had been between the defendant reservoir company and defendant
Winters, it would simply have made them joint tortfeasors, and both equally liable to plaintiff
for damages caused by reason of acts done in pursuance of the contract.
plaintiff for damages caused by reason of acts done in pursuance of the contract. (Richardson
v. Kier, 34 Cal. 63.)
R. M. Clarke and Wm. Webster, for Respondents:
I. Appellant was a promoter and organizer of the project to construct the dam at Washoe
Lake for the purpose of storing water for irrigating purposes. She contributed to building the
dam; she subscribed for shares of stock; she paid assessments; and used the stored water to
irrigate her land and crops during the dry months of the year, and cannot, for these reasons, be
heard to complain of these acts. She was cognizant of the agreement with Winters, knew that
the dam was being constructed, and is estopped to question these acts, or to complain of the
consequences naturally flowing therefrom.
II. The corporation ratified the agreement made by the promoters with Winters. It
accepted the deed from Winters. It constructed the dam under the contract. It used the dam
and waters stored thereby. It regulated the flow of the water under the contract as requested
by Winters. These acts abundantly prove ratification. (Cook on Stock, etc., sec. 707, p. 1045,
note 1, 2.)
III. Granting, for the argument, that plaintiff was not a stockholder prior to 1893, she had
knowledge of the contract and construction of the dam, and the purpose for which it was
constructed, and the use to be made of the dam and water, and acquired and held ten shares of
the stock in her own name in 1893 and thereafter, and as the transferee of that stock, and as
the holder thereof, is bound by the act of the incorporation, and is estopped, as well as the
original stockholder who transferred the stock to her. (Cook on Stock, etc., sec. 40, note 3.)
IV. As a stockholder, Mrs. Alexander, appellant herein, participated in and is bound by all
the acts of the corporation performed within the scope of its authority under the contract with
Winters, and, for this reason, she is barred of her remedy. (Cook on Stock, etc., sec. 730, note
7; 7 Kan. 311.)
V. The appellant was stockholder at all times. She requested, and it was understood, she
would be interested in the enterprise before the dam was constructed, and before the
corporation was formed.
the enterprise before the dam was constructed, and before the corporation was formed. She
was the owner of the land described in the complaint, which is situated on Steamboat Creek,
and this land was benefited, and was intended to be benefited, by the construction of the dam
and the storing of the water. She used the dam and water for irrigating purposes, and was
benefited thereby; she subscribed for the stock (using Candler's name); paid assessments,
attended stockholder's meetings, represented the stock and acted as a true owner thereof.
(Thompson on Liability of Stockholders, secs. 163-5.)
The appellant brought this action to recover a judgment for damages against the
respondents, caused by flooding water. From the judgment in favor of the respondents, and
from an order denying appellant's motion for a new trial, this appeal has been taken.
The complaint charges that in May, 1896, the respondent opened the gates of the dam used
for storing water in Washoe Lake, and discharged large quantities of water therefrom in
excess of what was necessary to irrigate lands, thereby increasing the flow in Steamboat
Creek and causing the creek to overflow its banks and to flood the appellant's land, and to
wash sand and gravel on the said land, and to wash out the head gates and irrigating boxes,
and to fill up her irrigating ditches, making it impossible for her to save her hay crop. It is
further charged in said complaint that on the 12th day of July, 1896, respondent again opened
the gates of said dam, and discharged into said Steamboat Creek large quantities of water in
excess of what was necessary to irrigate the land lying below said lake, thereby causing said
creek to overflow its banks, and to wash sand and gravel upon the appellant's meadow,
making it impossible for the appellant to cut and save her crops of hay.
The respondents filed separate answers denying the averments of the complaint, and by
way of new matter alleged, in substance, that the Washoe Lake Reservoir and Galena Ditch
Company had constructed a dam at the outlet of Washoe Lake for the purpose of holding
back the waters to irrigate lands, and that the appellant was a member of said corporation,
and, as such, assisted in the construction and maintenance of said dam, and used the
waters thereby restrained to irrigate her lands and the crops growing thereon.
irrigate lands, and that the appellant was a member of said corporation, and, as such, assisted
in the construction and maintenance of said dam, and used the waters thereby restrained to
irrigate her lands and the crops growing thereon.
The facts disclosed by the record, in brief, are: That in the summer of 1896, and before that
time, the appellant owned and occupied certain lands in the lower end of Steamboat Valley,
which were irrigated by the waters of Steamboat Creek. She and her grantors have claimed
and owned said land since about 1860, and have raised and harvested crops of hay thereon
since that date. Steamboat Creek is a natural watercourse, with its principal source in Washoe
Lake, flowing over and through the lands of appellant. Brown's Creek and Galena Creek are
tributaries of Steamboat Creek, the waters thereof flowing into Steamboat Creek above the
appellant's land. Huffaker's Creek is also tributary to Steamboat Creek, and flows therein on
the appellant's lands. Many gulches and ravines discharge their waters into Washoe Lake and
Steamboat Creek and its tributaries above appellant's lands during the spring season and times
of freshet. The volume of water flowing into Steamboat Creek is variable, at times being very
large, and at other times not sufficient to irrigate the lands of the farmers residing thereon,
and exercising the right to use the waters for that purpose.
Ordinarily three or four thousand inches of water flow naturally out of Washoe Lake into
Steamboat Creek, and in flood times that creek carries about ten thousand inches. The lands
of the appellant are in the lowest portion of Steamboat Valley, and during the times of high
water are flooded. In 1860, the parties claiming to own these lands, and certain other parties,
constructed a ditch from a point in Steamboat Creek about one mile above the appellant's said
land, and over a part thereof, to Huffaker's Creek. This ditch was constructed for the purpose
of turning the waters of Steamboat Creek out of its natural channel below the head of said
ditch, thereby drying and making available for hay and grazing the lands adjacent to the said
channel, and for the further purpose of irrigating the lands of the parties constructing said
ditch. This ditch was constructed upon grounds higher than those through which the natural
channel passed.
nel passed. The action of the water flowing through this ditch had gradually deepened and
widened the same from the point where it connected with the creek to and partially across the
appellant's land. This ditch for a considerable distance above Huffaker's Creek is shallow and
narrow. Since the waters of Steamboat Creek were turned into this ditch in 1860 the old
channel has filled with sediment and become nearly obliterated. The appellant and her
immediate grantor, for whom the appellant was agent, had constructed and maintained dams
in this ditch above appellant's lands, thereby retarding the flow and holding back the waters
so that the same overflowed the banks thereof, spread over said lands, and irrigated the same.
These dams caused a sediment to settle in the ditch and fill the same, and in 1895 the
appellant caused to be constructed upon her own land in said ditch a dam for this purpose.
She also caused ditches to be constructed at right angles with the channel from this dam, and
caused bulkheads to be put in each. These ditches have less fall than the channel which was
obstructed, and were not sufficient in size to carry the water in times of high water, and
thereby caused the channels both below and above to fill up with sediment, in consequence
whereof the water overflowed appellant's land.
The waters of Steamboat Creek being insufficient to irrigate the lands thereon during
seasons of scarcity, it was determined by the farmers residing thereon to build a dam at the
outlet of Washoe Lake for the purpose of storing the waters therein during the winter and
spring months, and at times when there was more water than was needed for irrigation. In
pursuance of this purpose notice was posted by a portion of the farmers claiming the surplus
water of Galena Creek, and an easement or ditch to conduct the same into Little Washoe
Lake, and the right to construct and maintain a dam at the outlet of Little Washoe Lake, for
the purpose of storing the waters therein. The respondent Winters owned the land where the
dam was to be built and the land on the border of the lake, which would be flooded by the
building of the dam, and he objected to the construction of the dam, unless upon condition
and subject to his control. These conditions were accepted by the ranchers and were
contained in a written agreement between the parties, whereby Winters granted to the
farmers the right to make a dam of solid masonry across the outlet of Washoe Lake of
such dimensions in height as the farmers may deem proper for the purpose of flowing
water back upon said lake for storage purposes.
contained in a written agreement between the parties, whereby Winters granted to the farmers
the right to make a dam of solid masonry across the outlet of Washoe Lake of such
dimensions in height as the farmers may deem proper for the purpose of flowing water back
upon said lake for storage purposes. He also granted the right to make and construct a ditch
over his land for the purpose of carrying the waters from Galena Creek into said lake to be
stored for use in irrigation. It was further provided that the dam should not raise the waters
above the level of the lake at high-water mark. It was also further provided that Winters
should have the absolute control over the flood-gates and waterways at all times, and also
control over the flood-gates and waste-ways of said dam at any time after the 1st of July in
each year. This agreement was made on the 18th day of May, 1889. On the 5th day of
September, 1889, the farmers locating and claiming the right to construct the dam and ditches
above referred to, conveyed their rights to the respondent Winters, which conveyance was
duly recorded.
On the same date certain of the farmers locating and claiming the rights above referred to
made and filed articles incorporating the respondent, the Washoe Lake Reservoir and Galena
Ditch Company. The purpose of said incorporation, as expressed in the certificate thereof,
was to construct a dam at the outlet of lower Washoe Lake, and to construct and maintain a
ditch to divert water from Galena Creek to Lower Washoe Lake, and there store the same for
stock, domestic, irrigation and mechanical uses. Certain farmers owning land upon Washoe
and Steamboat Creeks were the promoters of this corporation, and the appellant, acting as the
agent of her immediate grantor, was also one of the promoters of the same. It also appears
that, at the time of the injury complained of, and for some time previous thereto, that
appellant was an owner of the stock of said corporation; that for a long time previous, acting
as agent for her immediate grantor, she had participated in the proceedings of said
corporation, and had claimed the benefits thereof. She admits that she had knowledge of this
agreement between Winters and the farmers. In 1889 the corporation constructed the dam at
the outlet of Little Washoe Lake, since which time said corporation has exercised the right
for which it was created under the agreement with the said Winters.
since which time said corporation has exercised the right for which it was created under the
agreement with the said Winters. The appellant has participated in the meetings of the
corporation, either as agent of her immediate grantor, or as a stockholder thereof, during these
years, and has paid the assessments levied upon the stock by herself and her grantor.
The year 1896, respecting the water supply about Washoe Lake and its vicinity, was
unusual. The snows upon the adjacent mountains remained longer than usual; unusual and
heavy storms prevailed in May, and Steamboat Creek and its tributaries were full and at times
overflowed their banks during the months of May, June and July of that year. On the 29th day
of May a great storm filled the banks of those streams, overflowed the same, carried away
dams, bridges and bulkheads, and washed sediment and debris over the flooded lands. On the
5th day of May, 1896, the gates of the dam at the outlet of Washoe Lake were raised by the
agent of the corporation upon the direction of the respondent Winters, and were kept open
until the 15th of June, at which time they were closed. It seems that the lands flooded by the
dam on the borders of Washoe Lake belonging to Winters were meadow lands, and the hay
growing thereon is usually harvested during July. On the 12th day of July of that year the
gates of the dam were again raised by the company, at the request of Winters, pursuant to said
agreement, and there were discharged therefrom for some time about 3,500 inches of water
into Steamboat Creek. At this time the lands of the appellant were partially flooded, and the
waters discharged from the lake ran down upon and spread over a part of appellant's meadow,
and prevented her from harvesting the same.
The natural channel of Steamboat Creek above the ranch of the appellant is sufficient to
carry within its banks all the water turned therein during July and August, 1896, and has been
since 1889, except a small part thereof. The part not sufficient to carry the water has been
obstructed and filled with sediment and debris, which has settled therein by reason of the
dams and bulkheads maintained by the appellant and her grantor. It further appears that, in the
latter part of June, or early in July, the bulkhead and dam on appellant's ranch were out of
repair; that the water was running under the bulkhead and over her lands, and could not
be controlled under the conditions of the channel.
June, or early in July, the bulkhead and dam on appellant's ranch were out of repair; that the
water was running under the bulkhead and over her lands, and could not be controlled under
the conditions of the channel. Prior to 1896 the quantity of water which came down
Steamboat Creek was not sufficient to do appellant much, if any, injury, and was often
insufficient to irrigate her lands. It further appears that the very large quantity of water stored
in 1896 in Washoe Lake, and that the very large quantity of water flowing into Steamboat
Creek from said lake, and from streams and ravines tributary to Steamboat Creek, was due to
the causes above set out.
The record also discloses that the appellant, before the commencement of this action, had
commenced an action against certain other parties for damages growing out of flooding
waters during this season, but, as the facts connected with this suit will not in any manner
affect the decision of this case, they are omitted.
Upon the facts above set out, the court found that the appellant had been damaged by not
being able to harvest her crop in the sum of $500, but gave judgment for the respondents.
The errors assigned are: First, that the findings, conclusions, judgments, decisions and
decrees of the court are not supported by the evidence, and are contrary to the evidence.
Second, error of the court in rendering a decision, judgment and decree in favor of the
respondents.
Without passing upon all the contentions presented by the briefs, we find in the record
reason for affirming this judgment. The appellant was a promoter of the project to construct a
dam at the outlet of Washoe Lake for the purpose of storing water for irrigation, either as
owner of some interest in said land, or as the agent of her immediate grantor. She was in
control of the land as the owner of some interest therein, or as the agent of her immediate
grantor, before and at the time of the construction of the dam. She was present at the meeting
when the corporation was formed. Before the formation of the corporation she was anxious to
have an interest in the project and was then informed of its purpose and objects. She
requested the witness Crane to obtain such an interest; she discussed the height of the
proposed dam.
an interest; she discussed the height of the proposed dam. She subscribed for stock in the
name of her immediate grantor; she paid assessments upon this stock for the purpose of
constructing the dam. The dam was discussed by her during its construction; she attended
some of the meetings of the stockholders, and took part therein; she accepted the benefits of
the stored waters to irrigate the land during the dry months of the year; she was cognizant of
the agreement with Winters. The dam could not have been constructed without obtaining a
concession from the defendant Winters, and she must have known this fact. It is also
apparent, from all the facts, that the dam was constructed by the corporation under the
contract with Winters; that the waters so stored were used thereunder and the flow of the
water was regulated thereby. It is a well-settled proposition of law that a corporation may
ratify an agreement made by its promoters. Such ratification may be implied from the acts of
the corporation without an express acceptance.
The liability of the corporation under these circumstances does not rest upon a supposed
agency of the promoters, but upon the immediate and voluntary act of the company. If the
contract is within the corporate powers of the corporation, it may, when organized, expressly
or impliedly assume the responsibility of the same, and thus make it a valid obligation of the
corporation. This is especially true if the agreement appears to be a reasonable means of
carrying out any of the corporate powers or authorized purposes. (Pratt v. Oshkosh Match
Co., 62 N. W. Rep. (Wis.) 84; Huron Printing Co. v. Kittleson, 57 N. W. Rep. (Dakota) 233;
Weatherford R. Co. v. Granger, 28 S. W. Rep. (Tex.) 425; Colorado Water Co. v. Adams, 37
Pac. Rep. 39; Bruener v. Brown, 38 N. E. Rep. (Ind.) 318; Cook on Stock and Stockholders,
vol. 2, sec. 707.)
The respondent, the Washoe Lake Reservoir and Galena Creek Ditch Company, ratified by
its acts the Winters contract. This contract is clearly within the powers of this corporation.
The purposes of the corporation could not have been accomplished without the concessions
contained in this contract. The conditions of the contract, whereby Winters reserved the right
to control the head gates of the dam, for the purpose of protecting his own property, are
reasonable, and the corporation, having accepted the benefits of this agreement, cannot
repudiate its burdens.
reserved the right to control the head gates of the dam, for the purpose of protecting his own
property, are reasonable, and the corporation, having accepted the benefits of this agreement,
cannot repudiate its burdens. Those rights were exercised by Winters from the date of the
construction of the dam up to the time of the alleged injury. The appellant during all these
times, either as agent of her immediate grantor, who was a stockholder of said corporation, or
as a stockholder of said corporation, accepted the benefits arising under this contract in the
irrigation of said land, and acquiesced in the exercise by Winters of those rights reserved in
the contract.
It is well settled that a person cannot accept and reject the same instrument, or, having
availed himself of it as to part, defeat its provisions in any other part. (Hermann on Estoppel,
vol. 2, sec. 1028, citations in note.) The same doctrine is forcibly stated by this author in
section 1049 and section 1050 of the same volume, wherein he says: A person shall not be
allowed at once to benefit by and repudiate an instrument, but, if he choose to take the benefit
which it confers, he shall likewise take the obligations or bear the onus which it imposes; no
person can accept and reject the same instrument. * * * He who accepts a benefit under a
deed, a will, or other instrument, must confirm the whole instrument, conforming to all its
provisions, and renouncing every right inconsistent with them.
The appellant and her grantor considered it necessary that this dam should be constructed
for the purpose of storing water to irrigate said lands. The dam was constructed under the
Winters contract. She and her grantor accepted the benefits of this contract, and she must now
accept the burden imposed by it. Whatever damages she sustained in May and July, by reason
of the acts of the respondents, arise from the exercise of the rights under this contract, and the
appellant, as a stockholder, under the peculiar circumstances of this case, cannot complain of
these acts.
For these reasons the judgment of the district court will be affirmed.
____________

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