Nevada Reports 1890-1893 (21 Nev.) PDF

21 Nev.
13, 13 (1890)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
APRIL TERM, 1890.
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Volume 21
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21 Nev. 13, 13 (1890) State v. Sadler
[No. 1317.]
STATE OF NEVADA, Respondent, v. R. SADLER AND
CERTAIN REAL ESTATE, Appellants.
Assessor's DutyExcessive AssessmentProper Remedy.It is the duty of the assessor to assess all property
at its true cash value, but if he errs in this respect the taxpayer's proper remedy is that designated by law
(Gen. Stat. 1091), and he cannot avoid payment of his taxes on the ground that his property was valued at a
higher rate than that of other persons similarly situated.
Insufficiency of Allegation.An allegation that property was assessed in an amount greatly in excess of that
authorized by law is not sufficient to raise any issue as to the true cash value of the property, and to raise
such issue such value should be alleged.
Statutory ProvisionNecessary Averment.The statute expressly provides that where the person complaining
of the assessment has refused to give the assessor his list under oath, as required under this act, no
reduction shall be made by the board of equalization in the assessment made by the assessor. Held, that an
allegation that defendant made application to the board of equalization for a reduction of his assessment
must include the averment that the sworn statement was furnished to the assessor, or that no demand for it
was made, in order to constitute a defense to an action for the taxes.
Improperly Verified Tax RollDuty of Taxpayer.An objection to the introduction of the delinquent tax roll in
evidence, on the ground that it is not properly verified by the county treasurer is immaterial, when the
defendant, after his objection is overruled, cured the error, if any existed, by introducing the original
assessment roll, which gives the true assessment of his property. There is no necessity of proving a
delinquency, as it is the duty of the taxpayer, when his assessment is once properly made, to seek the
proper officer and pay his taxes.
Repetition of Dollar Mark Unnecessary.The dollar mark placed at the head of columns of figures is sufficient
and need not be repeated before each item.
Omission of Directory RequirementsTaxpayer Not Released.The acts required of officers between the
assessment and commencement of suit (Gen. Stat. 1108) are directory merely and their omission will not
release the taxpayer from his obligation to the state.
PracticeEvidence, When Not Reviewed.The supreme court will not review the evidence in the absence of a
regular statement on motion for a new trial.
Appeal from the District Court of the State of Nevada, Eureka county.
A. L. Fitzgerald, District Judge.
The facts sufficiently appear in the opinion.
Rives & Beatty, for Appellant:
I. By the portion of the answer stricken out the issue was properly raised as to whether an
equalization had ever been made; and hence that issue should have remained as made by the
pleadings, and the other parts of the answer were improperly stricken out, for the reason that
the same constitute a full, valid and legal defense to plaintiff's cause of action. (Hillard on
Taxation, Secs. 43-4 and 80; Cooley on Taxation, 157-8; Merrill v. Humphreys, 11 Am. L.
Reg. N. S. 208, et seq.)
II. There is no conflict of evidence on the subject that the wood ranch was not owned by
Sadler, to whom it was assessed, and it could be assessed only to the owner or to an unknown
owner (Sec. 12 Revenue Act); and when the wrong party, Sadler, is sued and it is proven that
some one else owns the property, the assessment is void. (Blackwell on Tax Tit., p. 173;
People v. Nelson, 36 Cal. 377; People v. Whipple, 47 Cal.
591; People v. Castro, 39 Cal. 65; City of Oakland v. Whipple, Id. 112; Chapman v. City of
Brooklyn, 40 N.Y. 372.)
III. It is within the power and is an incumbent duty of the trial court to correct its findings
in order that justice and right may prevail, and that the party against whom such finding is
should not be put to the trouble and expense of a motion for a new trial. A jury may correct or
amend its verdict while yet within its control, and findings, regarded in the same light, should
be under the control of the court and subject to correction or amendment.
J. F. Alexander, Attorney General, Peter Breen, District Attorney of Eureka county, and
A.E. Cheney, for Respondent.
I. The transcript contains the statement, as proposed by appellants, and the proposed
amendments of respondent, but there is nothing from which the court can determine what
amendments were allowed and how the amendments effect the original statement, and
consequently there is no statement on appeal which this court will consider. (People v.
Edwards, 9 Cal. 286; Marlow v. Marsh, 9 Cal. 259; Skillman v. Riley, 10 Cal. 300; Baldwin
v. Ferre, 23 Cal. 461; Kimball v. Semple, 31 Cal. 658).
II. A delinquent tax list makes a prima facie case, (State v. Eureka Con. Mg. Co., 8 Nev.
15, 29,) but it is not essential to the maintenance of the action. (State v. Northern Belle Mg.
Co., 15 Nev. 385.) Acts occurring between the assessment of the property and the
commencement of suit are merely directory. To constitute a defense the complaint must not
only show a failure to comply with the law but also that it has sustained an injury therefrom.
(Gen Stat. 1109; State v. C. P. R. R. Co., 10 Nev. 47, 60; State v. W. U. Tel. Co., 4 Nev. 347.)
III. If the facts found by the court are contrary to, or are unsupported by the evidence, the
remedy is by motion for new trial. (Warren v. Quill, 9 Nev. 264; Whitmore v. Shiverick, 3
Nev. 303; Beck v. Truckee Lodge, 18 Nev. 246.)
IV. It is no defense to a tax suit that property was not assessed at its true value (People v.
Whyler, 41 Cal. 351), nor that others do not pay their portion of taxes. (State v. Eastabrook, 3
Nev. 173.) The remedy is petition to the board of equalization (State v. Wright, 4 Nev. 251),
but the board is without jurisdiction until it is shown that the party has furnished the
assessor a statement of his property or that no demand was made for a statement.
without jurisdiction until it is shown that the party has furnished the assessor a statement of
his property or that no demand was made for a statement. (State v. Board of Com., 5 Nev.
317; State ex rel. Thompson v. Board of Equalization, 7 Nev. 83; State v. C.P.R.R. Co., 17
Nev. 259.)
V. The only effect of the court's sustaining defendant's objections to the delinquent tax list
would have been to cause plaintiff to produce the original assessment roll, but this was done
by defendant and defendant's rights were not prejudiced by the harmless ruling of the court.
(Sweeney v. Schultes, 19 Nev. 57; Lake v. Lake, 16 Nev. 366.)
By the Court, Hawley, C. J.:
This is an action to recover delinquent state and county taxes.
1. Appellants claim that the court erred in striking out certain portions of their answer,
alleging that the assessment was fraudulently and illegally made, in this: that it was not equal
in valuation with that of other property similarly situated and of the same value; that it was
assessed in an amount greatly in excess of that authorized by law, to-wit: its true cash
value; that the assessment was arbitrary, as appellant Sadler never signed, swore to, or made
any return of his property; that he appeared before the board of equalization, and protested
against the assessment, and demanded that it should be reduced and fixed at its true value;
and that said board refused and neglected to equalize the same, or any part thereof. This court
decided, in State v. Eastabrook, 3 Nev. 180, that it was no defense to a suit for taxes that
other property similarly situated was not assessed at all. It is the duty of the assessor to assess
all property at its true cash value. If he errs in this respect, the law provides a proper remedy.
(Gen Stat. Sec. 1091). The tax-payer cannot avoid the payment of his taxes on the ground that
his property was valued at a higher rate than the property of other persons similarly situated.
The allegation that the property of appellant Sadler was assessed in an amount greatly in
excess of that authorized by law, was not sufficient to raise any issue as to the true value of
the property, even if he was otherwise entitled to make such a defense, because it does not
state what the true cash value of the property was. Courts do not deal with trifles. To raise an
issue facts must be stated, showing that there are real questions involved.
issue facts must be stated, showing that there are real questions involved. The allegation,
treated as an ordinary pleading denying an indebtedness, amounts to an admission that the
true value of the property was only one mill less than the amount of the assessment. But he is
not in a position to complain that his property was not assessed at its true value. The statute
provides that the taxpayer who has any cause of complaint in this respect may make
application to the board of equalization to have his assessment reduced (Gen. Stat. Sec.
1091), and if he fails to do so his remedy is lost (State v. Wright, 4 Nev. 251).
Sadler alleges that he made such an application; but he does not aver that he complied with
other provisions of the statute, which it was necessary to do in order to entitle him to any
redress before the board of equalization. The statute expressly provides that where the
person complaining of the assessment has refused to give the assessor his list under oath, as
required under this act, no reduction shall be made by the board of equalization in the
assessment made by the assessor. In construing this provision it has uniformly been held by
this court that the board of equalization has no jurisdiction to act unless it is shown that the
complaining party furnished a statement to the assessor as provided by law, or that no
demand was made for such a statement; that the burden of proof is upon the defendant to
show that such statement was furnished, or that no demand therefor was made. (State v.
Commissioners of Washoe County, 5 Nev. 317; State ex rel. Thompson v. Board of
Equalization of Washoe County, 7 Nev. 83; State v. Central Pacific Railroad Co., 17 Nev.
260.) The allegations did not present any question of fraud in the assessment. The court did
not err in striking out the allegations, as they did not constitute any defense to the action.
2. The objections made to the introduction of the delinquent tax-roll in evidence, in so far
as the same relate to a want of proper verification by the county treasurer as required by law,
will not be considered. It is, of course, the duty of the officers to comply with the law; yet it
has never been held that it was absolutely essential, to enable the state to collect its taxes, that
a delinquent tax-roll should exist in strict conformity with the law. Any irregularity in this
respect is a defense in an action to recover taxes only to the extent that the party has been
injured thereby.
jured thereby. (State v. Central Pacific Railroad Co., 10 Nev. 61; State v. Northern Belle
Mining Co., 15 Nev. 386.) And in this case it affirmatively appears that there was no injury.
It is always an easy method, in making the proofs on the part of the state, to introduce the
delinquent roll, as it is made prima facie evidence to prove the assessment, property
assessed, the delinquency, the amount of taxes due and unpaid, and that all the forms of law
in relation to the assessment and levy of such taxes have been complied with. (Gen. State.
Sec. 1110.) But the facts may be proven in any other manner. The record shows that appellant
Sadler, after his objection was overruled, introduced the original assessment roll, which set
forth the assessment as made upon his property. This cured the error, if any existed, in the
delinquent roll, and obviates the necessity of determining whether, or not, the court erred in
admitting the exhibits taken from the delinquent roll. The failure of the plaintiff to introduce
the delinquent list could certainly do no more than throw on it the necessity of proving a
regular assessment. There was no necessity of proving a delinquency. When the assessment is
once properly made, it then becomes the duty of the tax-payer to seek the proper officer and
pay his taxes. (State v. Western Union Telegraph Co., 4 Nev. 346)
The objections to the assessment roll, to the effect that it did not show, or purport to show,
the amount of taxes in money which had been levied and assessed against the respective
pieces or parcels of property, and that the taxes had not been properly extended or carried out
according to law, are based principally upon the erroneous theory that it is necessary that the
dollar mark should be affixed to the value of each piece of property, and to the amount of the
tax in the respective columns where the amounts are carried out. The fact is that the dollar
mark appeared at the head of each column. This was sufficient to enable the court to
determine with certainty the amount of the tax, which is all that the law requires. (State v.
Eureka Con. Mining Co., 8 Nev. 16.) If the dollar mark is prefixed at the head of an item
column of figures, or to some, but not all of the items in the column, or to the totals at the
foot of the column, then all the figures standing in the same column must, necessarily, be
construed to be dollars without a repetition of the dollar mark before each.
All the objections to the delinquent and original assessment roll, relate to the acts of
officers required to be performed "between the assessment and commencement of suit,"
which are directory merely {Gen.
roll, relate to the acts of officers required to be performed between the assessment and
commencement of suit, which are directory merely (Gen. Stat Sec. 1108), and an omission
of any or all of them will not release the taxpayer from his obligation to the state. (State v.
Western Union Telegraph Co., supra; State v. Central Pacific Railroad Co., 10 Nev. 78.)
3. It is contended that there is no evidence to sustain the findings of the court that
appellant Sadler was the owner of the Duker Ranch, which was assessed to him. After the
findings were filed, appellants moved the court to correct its findings in this respect, which
the court refused. No motion for a new trial was made.
The question of practice relating to this point is too well settled to require discussion. It
has always been held that this court can not review the facts in order to ascertain whether the
findings are supported by the evidence, unless there has been a regular statement on motion
for a new trial. (Whitmore v. Shiverick, 3 Nev. 303; James v. Goodenough, 7 Nev. 324;
Conley v. Chedic, Id. 336; Beck v. Truckee Lodge, 18 Nev. 246; Burbank v. Rivers, 20 Nev.
81.)
The judgment of the district court is affirmed.
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21 Nev. 19, 19 (1890) State v. Commissioners Elko County
[No. 1320.]
THE STATE OF NEVADA, ex rel., W. C. LOVE, Realtor, v. COUNTY COMMISSIONERS
OF ELKO COUNTY, Respondents.
Statute ConstruedConstitutional Law.The act of February 23, 1887, entitled An act relating to and
consolidating certain county offices in the State of Nevada, provide that after the first Monday in January,
1889, district attorneys shall be ex-officio superintendents of schools in their counties without additional
compensation. The act of March 11, 1885, fixing the compensation of officers of Elko county, was
amended by the act of March 5, 1887, so far as it fixed the compensation of sheriff, so as to give him a
salary of $4,000 per annum in lieu of fees, and that portion of the act fixing the salary of the district
attorney at $2,000 per annum and the superintendent of schools at $600 per annum, was re-enacted. Held,
that the amendatory act was passed for the sole purpose of changing the compensation of the sheriff, and
did not repeal the act of February 23, 1887, as the constitution of Nevada (Art. IV, Sec. 17) requires that
no law shall be revised or amended by reference to its title only, but in such case, the act as
revised, or section as amended, shall be re-enacted and published at length."
such case, the act as revised, or section as amended, shall be re-enacted and published at length.
Original application for writ of mandate.
Robt. M. Clarke and W. C. Love, for Relator
I. Respondents being charged by law with the duty of acting upon relator's demand, and
having neglected and refused to do so may be compelled to act thereon by mandate of this
court.
II. The act of March 5, 1887, is irreconcilably repugnant to the act of February 23, 1887,
so far as Elko county is affected, and being a later statute must be given effect. (Sedgwick on
Const. and Stat. Law, p. 123, et seq.; Estate of Walley, 11 Nev. 260; United States v. Barr, 4
Saw. 254).
J. A. Plummer, for Respondents.
I. The act of March 5 has no relation to the act of February 23. One refers to and affects an
ex-officio person who, by virtue of holding one lucrative position, shall be required at a future
time to earn his salary by additional labor; the other to an individual regularly elected to a
separate and distinct office and who at the time was performing the duties thereof.
II. Statutes must be wholly irreconcilable, inconsistent and incapable of other reasonable
construction before a repeal by implication will be admitted to have taken place. (McCartee
v. Orphan Asylum Society, 9 Cowen 437; People v. Quigg, 59 N.Y. 83; State v. Severance,
55 Mo. 378; W. W. Co. v. Burkhart, 41 Ind. 364; Haynes v. Jenks, 2 Pick. 176; People v. S. F.
& S. J. R. Co., 28 Cal. 254).
This is an application for mandamus to compel respondents to act upon relator's claim for
fifty dollars for one month's compensation as county superintendent of schools. In 1885 the
legislature passed an act regulating the compensations of county officers in the several
counties of this state, and other matters relating thereto (approved March 11, 1885). Section
5 of this act fixed the compensation of all the county officers of Elko county, and, among
other things, provided that the sheriff "shall receive such fees as are allowed under the
provisions of an act * * * approved February 27, 1SS3," {Stat.
Elko county, and, among other things, provided that the sheriff shall receive such fees as are
allowed under the provisions of an act * * * approved February 27, 1883, (Stat. 1883, 56);
that the district attorney shall receive two thousand dollars per annum, and that the
superintendent of schools shall receive six hundred dollars per annum. In 1887 the
legislature passed an act relating to and consolidating certain county offices in the state of
Nevada (approved February 23, 1887). This act reads as follows:
Section 1. On and after the first Monday in January, A. D. 1889, the district attorneys, in
addition to their respective duties, shall be ex-officio superintendent of schools within their
respective counties, without additional compensation. Sec. 2. There shall be no county
superintendent of schools elected in this state, except as provided in section one of this act.
Sec. 3. All acts and parts of acts in conflict with the provisions of this act are hereby
repealed. (Stat. 1887, 73.) At the same session the legislature, to-wit, March 5, 1887,
amended section 5 of the act approved March 11, 1885, in so far as it fixed the compensation
of sheriff, so as to read that the sheriff of Elko county shall receive four thousand ($4,000)
dollars per annum, which sum shall be compensation in full for all services rendered, and
re-enacted the original clauses relating to the offices of district attorney, superintendent of
schools and other offices. (Stat. 1887, 125.)
Relator was elected district attorney at the general election held in 1888. His term of office
commenced on the first Monday in January, 1889, and he then became, under the provisions
of the act approved February 23, 1887, ex-officio superintendent of schools of Elko county.
He claims that under the provisions of the amendatory act approved March 5, 1887, he is
entitled, in addition to his compensation as district attorney, to a salary of six hundred dollars
per annum as superintendent of schools.
At the time of the passage of the original act of March 11, 1885, the office of
superintendent of schools was an elective office, independent, separate, and distinct from the
office of district attorney. There is no conflict between the two statutes passed in 1887. The
act approved February 23 consolidated the offices of district attorney and superintendent of
schools. It provided that they should, after the first Monday in January, 1SS9, be held by one
person, to be elected as district attorney, and to receive the compensation allowed by law
to that office, and, in addition to his duties as district attorney, to perform the additional
duties of superintendent of schools, "without additional compensation."
uary, 1889, be held by one person, to be elected as district attorney, and to receive the
compensation allowed by law to that office, and, in addition to his duties as district attorney,
to perform the additional duties of superintendent of schools, without additional
compensation. The subsequent amendatory act, approved March 5, has no reference
whatever to the subject matter of the prior act of February 23, but relates exclusively to the
act approved March 11, 1885, and was passed for the sole purpose of changing the
compensation of the sheriff from fees to a salary.
Under the constitution of this state, no act of the legislature could be amended by
reference to its title only, but in such case the act as revised, or section as amended, shall be
re-enacted and published at length. (Article IV, Sec. 17.) In order to make the desired change
in the compensation of the sheriff, the legislature, in pursuance of this constitutional
provision, re-enacted all the other provisions contained in section 5 of the act of March 11,
1885. The object and purpose of the act of March 5, 1887, being entirely foreign and distinct
from that of the act of February 23, 1887, it necessarily follows that the claim of relator that
the amendatory act of March 5th, being the later act, repealed the former act of February 23d,
requiring the district attorney to perform the duties of superintendent of schools without
compensation, by implication, is utterly devoid of any merit whatever. The intention of the
legislature in the passage of these acts, is so clear, plain, positive and certain that a reference
to the statutes is all that is needed to decide the question. Mandamus denied.
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21 Nev. 22, 22 (1890) Alexander v. Archer
[No. 1319.]
L. W. ALEXANDER, Petitioner, v. E. S. ARCHER, Justice
of the Peace, Respondent.
Constitutional Law.The statute (Gen. Stat. 3831) provides, that in all cases of attachment and writs of a similar
nature, any miner, mechanic, salesman, servant, clerk or laborer, may, at any time before actual sale, serve
upon the officer executing such writ a sworn notice of his claim, and shall also notify the creditor causing
such writ to be issued, as well as the debtor, if he be found in the county where the property is situate, and
if he be not there found, then service upon the officer shall be sufficient; and unless within five days after
receiving such notice, either the creditor or the debtor disputes the claim, if the
claimant has filed in the court where the action is pending an affidavit showing his
compliance with the law, the officer shall pay the claim as a first lien on the proceeds
of the sale.
ceiving such notice, either the creditor or the debtor disputes the claim, if the claimant has filed in the court
where the action is pending an affidavit showing his compliance with the law, the officer shall pay the
claim as a first lien on the proceeds of the sale. Held, the statute is constitutional and does not deprive a
person of his property without due process of law.
Duty and Liability of Officer.When a claimant complies with the law, and his claim has not been disputed
within five days, it becomes the duty of the officer selling the property and receiving the money to pay the
claim, and he is liable to the claimant for the amount without an additional action to recover the same.
Notice and Filing of ClaimNature and Effect.The service of notices, and the filing of a preferred claim is in
the nature of a petition in intervention, and if either the debtor or the creditor serve written objections
thereto, it becomes the duty of the claimant, within ten days, to commence an action in a court of
competent jurisdiction to establish his claim.
Failure of Sheriff to Pay Preferred ClaimRemedy.When, in a suit in a justice's court, such notices were
served upon the attaching creditor, and upon the sheriff who made the levy, the debtor not being found, and
although the claim was not disputed within five days, the sheriff failed to pay it, but applied the proceeds of
the sale to the satisfaction of the execution, the justice had jurisdiction upon showing by the claimant, to
enter an order requiring the sheriff to pay the claim. (Belknap, J., dissenting.)
Objection by Judgment CreditorEstoppel.A judgment creditor, who has obtained judgment and collected
the same by legal process, is estopped from objecting to the sufficiency of his own complaint, or to the
regularity or legality of any of the proceedings by virtue of which he collected his judgment.
Return to Writ of Certiorari Conclusive.No more of the facts are required to be returned to a writ of certiorari
than are necessary to determine jurisdiction and the return being deemed conclusive, no evidence, not
included therein, will be received and examined.
Original application for writ of certiorari.
J.H. Macmillan and W. E. F. Deal, for Petitioner.
I. The justice had no jurisdiction to make the order until Walsh had established his claim
and obtained a judgment therein by due process of law. (Coscia v. Kyle, 15 Nev. 397.)
II. No person can be deprived of his liberty or his property without due process of law.
(Const. Art. 1, Sec. 8; Cosica [Coscia] v. Kyle, 15 Nev. 397; Wright v. Cradlebaugh, 3 Nev.
349; Gibson v. Mason, 5 Nev. 302-3; Myer v. Berlandi, 40 N. W. Rep. 515, 517; People v.
O'Brien, 18 N. E. Rep. 707, 9, 10.)
III. Such summary proceeding is not due process of law as defined by the following out
of a host of authorities: (Cooley's Const. Stats. Sec. 353 and note I; Wright v. Cradlebaugh, 3
Nev. 349; People v. O'Brien, 18 N. E. Rep. 707, 9, 10; Gibson v. Mason, 5 Nev. 302;
Ex-parte Wall, 2 Sup. Ct. Rep. 569; Hagar v. Reclamation Dist. 108 Id. 667; Davidson v.
New Orleans, 96 U.S. 97; Murray's Heirs v. Hoboken L. & I. Co., 18 How. 272; Pearson v.
Jewdall, 5 Otto 294; Reis v. City of Watertown, 86 U.S. 72; Baker v. Kelly, 11 Minn. 480;
People v. Turner, 2 N.Y.S. 253; Martin v. C. V. Ry. Co., 3 N.Y.S. 862; Taylor v. Porter, 4
Hill 145; Dwight v. Williams, 4 McLean 586; Storey on Const. 661; Westervelt v. Gregg, 12
N. Y. 202; Rowan v. State, 30 Wis. 129; 2 Coke Inst. 455; Brady v. King, 53 Cal. 44; State v.
Becht, 23 Minn. 413; Wynchamer v. People, 13 N.Y. 394; Penoyer v. Neff, 95 U.S. 714.)
IV. Due process of law requires that a person be brought into court and have the
opportunity to prove any fact for his protection. (Parsons v. Russell, 11 Mich. 113; James v.
Reynolds, 2 Tex. 251; Norman v. Heist, 5 Watts 171; Newcomb v. Smith, 1 Chand. 71; Hoke
v. Henderson, 4 Dev. 15; Osborn v. Nicholson, 80 U.S. 689; Wilkinson v. Leland, 27 U.S.
658.)
V. Claimant must first ripen his lien into a judgment before he asks the court to order the
sheriff to pay over the money and even then the penal statute would not be applicable. (Nash
v. Muldoon, 16 Nev. 408; Egerly & Hinckley v. Buchanan and His Sureties, 5 Cal. 55;
Wilson v. Broder, 10 Id. 444; Giffan v. Smith, 2 Nev. 377; Coscia v. Kyle, 15 Id. 398.)
VI. There was actual notice that the claim was disputed, the party interested appearing and
opposing the granting of the motion. The officer is bound to treat all claims as disputed until
he is expressly authorized by the creditor and debtor to pay them. (Coscia v. Kyle, 15 Nev.
399.)
L. A. Buckner, for Respondent.
I. The writ of certiorari is issued only upon the application of the party beneficially
interested, and petitioner is not such party in this proceeding. The parties interested are
Walsh, the preferred claimant, and Fellows, the officer against whom the order was made.
Petitioner has been paid in full.
II. In determining whether the inferior court acted without jurisdiction only the record
which was before that court can be reviewed.
jurisdiction only the record which was before that court can be reviewed. Matters not in the
record can not be used here and certainly the record below can not be contradicted by
ex-parte affidavits in this court for the first time. (State ex rel. Thompson v. Board of
Equalization of Washoe County, 7 Nev. 83, 84, 90; New Jersey R. R. Co. v. Suydam, 2 Harris
25.)
III. Respondent had jurisdiction to make the order directing the officer executing the writ
to pay the preferred claim. Walsh made and gave notice of his claim in strict compliance with
the statute, and none of the parties interested serving objections thereto, it became the duty of
the officer to pay it.
IV. The justice had jurisdiction of the subject matter and Walsh had a right to intervene by
filing his notice of preferred claim, which is in effect, a complaint.
V. In Coscia v. Kyle on appeal it was decided that without service of notice on the
creditor and the debtor as well as upon the officer, a person might be deprived of his property
without due process of law, but since that decision the statute has been so amended, and now
remains, as to obviate such possible illegality.
VI. A court may pass on the question of its own jurisdiction. In this case the objection was
made by plaintiff and decided against him, and from which decision he appealed, as he had a
right to do. Having had and exercised such right he can not invoke this review. (Philips v.
Welch, 12 Nev. 158 and authorities there cited.)
By the Court, Murphy, J.:
The petition in this case is for a writ of certiorari to review the proceedings of the justice
of the peace of Union township, Humboldt county. It appears from the transcript from the
justice's docket that on the 7th day of March, 1889, the petitioner filed in the justice's court a
complaint on a promissory note against the Cliff Mining Company for the sum of two
hundred and seventy-six dollars and forty-seven cents signed by N. Frayer, Supt; that on the
same day a writ of attachment and summons were issued, placed in the hands of a deputy
sheriff, and service made on the superintendent and managing agent of the said mining
company, and certain personal property attached to satisfy whatever judgment that might be
obtained.
tained. On the 11th day of March, 1889, the petitioner appeared in court, and, there being no
appearance on the part of the Cliff Mining Company, judgment was entered in favor of the
plaintiff (petitioner here) for the amount claimed to be due. Execution issued, and on the 16th
day of March, 1889, the property was sold, and on the 29th day of March, 1889, said
execution was returned by the sheriff satisfied.
On the 15th day of March, 1889, one Lawrence Walsh made out, subscribed to, and had
filed in the justice's court a preferred claim against the Cliff Mining Company, under the
provisions of an act of the legislature to protect the wages of labor, approved February 23,
1881 (Stat. 1881, 56) and served a copy thereof on each of the parties to the action of
Alexander v. Cliff Mining Company, and on the officer executing the writs of attachment and
execution; and, the defendant whose property had been attached and levied upon not being in
the county, the said Walsh delivered, at the same time and place, one of the notices to the
officer serving the writs, in lieu of the Cliff Mining Company, and also one of said notices to
William S. Bonnifield, as attorney for the said Cliff Mining Company. On the 9th day of
October, 1889, Lawrence Walsh served a written notice on F. M. Fellows, sheriff of
Humboldt county, demanding of said sheriff the payment of the sum of one hundred and fifty
dollars and fifty cents, the amount alleged to be due Walsh on his preferred claim, and on the
same day a citation was issued out of the justice's court, directed to the said sheriff and his
sureties, requiring them to appear before the said justice on the 16th day of October, 1889,
and show cause, if any they had, why an order should not be made requiring the said sheriff to
pay to Walsh the said sum of one hundred and fifty dollars and fifty cents, realized from the
sale of property belonging to the Cliff Mining Company. Service of the papers were made on
the sheriff. On the 23d day of October, 1889, to which time the hearing had been continued,
the parties appeared before the justice of the peace. Walsh introduced his documentary
evidence, and F. M. Fellows, the sheriff, appeared and objected to the jurisdiction of the
court. The ground of the objection is not stated. Whereupon the justice made an order that F.
M. Fellows, as sheriff, pay to Lawrence Walsh one hundred and fifty dollars and fifty cents,
United States gold coin, of the money he made on attachment in the action of L. W. Alexander
v. Cliff Mining Company, the amount due on Walsh's preferred claim, and the sum of three
dollars and seventy-five cents costs.
v. Cliff Mining Company, the amount due on Walsh's preferred claim, and the sum of three
dollars and seventy-five cents costs.
Section 3 of the act under which the above proceedings were had, reads as follows: In all
cases of execution, attachments and writs of a similar nature against the property of any
person or persons, or chartered company or corporation, it shall be lawful for such miner,
mechanic, salesman, servant, clerk and laborer to give notice of their claim or claims, and the
amount thereof, duly certified and sworn to by the creditor or creditors making the claim to
the officer executing either of such writs, at any time before the actual sale of property levied
upon; the creditor or creditors making the claim shall at the same time give notice in writing
to the creditor or creditors at whose instance the property has been levied upon, or his or their
attorney, of their said claim or claims, and the amount thereof duly certified and sworn to by
such claimant or claimants; a copy of said notice shall also be served upon the debtor, if he be
found within the county where the property levied upon is situated; provided; that if the
debtor cannot be found within the county where the property levied upon is situated, then said
notice may be served upon the officer executing either of such writs in lieu of said debtor.
Upon the filing in the court where the action or actions against the debtor is or are pending, of
an affidavit of the claimant or claimants showing his or their compliance with the foregoing
provisions of this section, the officer executing either of said writs shall pay to such miners,
mechanics, salesmen, servants, clerks, or laborers, out of the proceeds of the sale, the amount
each is justly and legally entitled to receive for services rendered, within ninety days next
preceding the levy of the writ of execution, attachment or other writ, not exceeding two
hundred dollars, in gold coin of the United States; provided, that either the creditor or debtor
may dispute the claim of any person seeking and claiming preference under this section; and
in such case the party or parties disputing such claim shall serve a written notice that they
dispute such claim upon the claimant or claimants, and upon the officer executing such writs,
within five days from the time of service upon such creditor or debtor of the notice of the
claim by the claimant seeking preference as herein before provided for.
The petitioner contends that the act under consideration is unconstitutional, in that it is
an attempt to deprive a person of his property without due process of law, and they rely
upon the decision in case of Coscia v. Kyle, 15 Nev. 395
is unconstitutional, in that it is an attempt to deprive a person of his property without due
process of law, and they rely upon the decision in case of Coscia v. Kyle, 15 Nev. 395.
The court in that case did not hold the law to be unconstitutional. The record showed that
the plaintiff presented his claim, duly verified, to the sheriff, before the sale of the property.
But as no notice had ever been served upon the creditor or debtor, except as to Huntington,
Hopkins & Co., it was to be inferred that the sheriff notified them, and they denied the
preferred claims, and the sheriff notified the claimant that his claim was disputed. Upon those
facts the court below set aside the verdict of the jury, and granted a new trial on the ground
that the claims were disputed and no suit was ever brought to establish said claims. On appeal
the attorney for appellant contended that the notice to the sheriff was sufficient, and neither
the creditor nor debtor having disputed the claim by serving upon the claimant a written
notice of their objections, the sheriff was in duty bound to pay the preferred claim.
The majority of the court held that, if such was to be taken as the intention of the law, it
would be unconstitutional, as it would deprive the judgment creditor of his property to the
extent of his judgment lien, and the judgment debtor for whatever money might be in the
officer's hands after paying said judgment. The court then said: We do not think that in this
instance the legislature has attempted anything of the kind. As we construe the statute, it
clearly implies, although it does not expressly say so, that notice of the claims must not only
be given to the sheriff, but also to the debtor and creditor, for how otherwise can they dispute
the claims?
Intimating that if the claimant had served notices of his claim on the debtor and creditor,
the law would have been complied with, and, if the claim was not disputed, the claimant
would be entitled to his money. Since the decision in the case of Coscia v. Kyle was rendered,
the statute has been amended, removing all ambiguity.
In California, where they have a statute similar to our own, the supreme court said, in the
case of Mohle v. Tschirch, 63 Cal. 382: It is contended by appellant that section 1,206 of the
code of civil procedure is unconstitutional, in that it provides for taking private property
without due process of law, and that it is special legislation.
that it is special legislation. The section provides for notice to the attaching creditor, and the
latter knows that his attachment will hold the property for the benefit of the claims of the
preferred class which may be established. Our attention has not been called to any subdivision
of section 25 of article 4 of the state constitution which prohibits such legislation as is
enacted in section 1,206 of the code of civil procedure.
There are two points to be considered in the construction of all remedial statutesthe
mischief and the remedy; and it is the duty of courts so to construe acts of the legislature as to
suppress the mischief and advance the remedy. The object of the law under consideration
being to secure the claims of the miner, mechanic, salesman, servant, clerk and laborer, who
have by their labor contributed to enhance the value of their employers' property, should
receive the most liberal construction to give full effect to its provisions.
In the majority of cases the laborers are men of limited means, depending entirely upon
their daily wages for the support of themselves and families. The legislature, knowing this to
be the case, enacted the above law, as being the most expedient and least expensive, and to
secure to the class named their pay, which they could not do, if required to pursue the
ordinary course of law, as the first attachment or the first writ of execution would exhaust all
the property of the judgment debtor, leaving the man who by his labor created the property
without any redress whatever. Walsh, having made out his preferred claim, duly certified and
sworn to, filed the same in the justice's court, where the action of Alexander v. Cliff Mining
Company was instituted, served copies thereof on the parties to the suit, and the officer
serving the writs, as required by the statute, and, his claim not being disputed within five
days, as required by the law, it became and was the duty of the sheriff, after selling the
property and receiving the money, to pay Walsh's preferred claim. That officer not having
done so, is liable to Walsh for the amount found to be due. Walsh's claim not being disputed,
he is not required to bring an additional action for the recovery of the amount due him.
The filing of his preferred claim, and the service thereof on the judgment creditor,
judgment debtor, and the officer serving the writs, is in the nature of a petition of
intervention; it is a notice to the creditor and debtor that the claimant has an interest in the
action commenced as against both plaintiff and defendant, and claims a lien on the
money coming into the officer's hands from the sale of the property.
interest in the action commenced as against both plaintiff and defendant, and claims a lien on
the money coming into the officer's hands from the sale of the property. If either the debtor or
creditor objects to the claim, they must within five days serve written notices upon the
claimant and the officer executing the writs, that they, or either of them, dispute the claim, or
some part thereof. If such notice is served, then it becomes the duty of the claimant within ten
days to commence an action in a court having jurisdiction to establish his claim.
The notice served upon the officer serving the writs and receiving the money is in its
nature a garnishee. It is a notice to him that the claimant claims a portion of the money in his
hands. He has notice of the proceedings, and knows, or should know, what is required of him.
At the expiration of five days after the service of notice of the preferred claim upon him, if he
has not been notified in writing that the claim is disputed, he must pay the claim, for by the
silence of the judgment creditor and debtor they confess the justness of the claim. If he should
be notified within the time and in the manner, as required by the statute, that the claim is
disputed, he shall retain the money in his hands for ten days from the service of such notice. If
suit has not been commenced by the claimant within the ten days, it is an admission that his
claim is not a just one, and the officer will pay the money over to the judgment creditor. If the
suit has been commenced as required by the act, the officer should retain possession of the
money until the final termination of the suit, and pay it out in accordance with the orders of
the court. Money received by an officer by virtue of a writ of attachment or garnishee is in the
custody of the law, and the officer is in duty bound to pay it out as the law and the court
directs; and the law in this case said that the sheriff should have paid Walsh's claim, as the
same had not been disputed. The sheriff not having done so, the only course left for Walsh to
pursue was to petition the court, and the court had the power to make the order. This is the
only reasonable and logical construction that can be placed upon the act. The act is not
subject to the objection that it deprives a person of his property without due process of law.
The act provides for the serving of notices, and gives the judgment debtor and creditor an
opportunity to be heard in court; and if they do not avail themselves of that privilege, it is
their own fault, and not the fault of the law.
the fault of the law. The officer cannot complain, as he has no interest in the subject matter
whatever except to obey the law and the orders of the court out of which the writ issued, and
enforce their mandates.
In the case of McCauley v. Fulton, 44 Cal. 360, the court said: The form and mode of
service of process by which parties defendant are brought into court, whether it be an inferior
or superior court, so as to give the court jurisdiction of their persons, are matters of legislative
discretion. And in the case of Dent v. West Virginia, 129 U.S. 114, Mr. Justice Field, in
delivering the opinion of the court, said: Legislation must necessarily vary with the different
objects upon which it is designed to operate. It is sufficient, for the purpose of this case, to
say that legislation is not open to the charge of depriving one of his rights without due
process of law, if it be general in its operation upon the subjects to which it relates, and is
enforceable in the usual modes established in the administration of government with respect
to kindred matters; that is, by process or proceedings adapted to the nature of the cases.
Jurisdiction is the power to hear and determine causes between parties and to carry
judgments into effect. Petitioner also claims that Walsh cannot recover because there was no
suit pending; no writ of attachment issued in any action wherein the Cliff Mining Company
was a defendant; that there was no judgment against the Cliff Mining Company; and he bases
his objection on the ground that the note sued upon was not the note of the Cliff Mining
Company. These objections will not be considered. Petitioner, having obtained judgment
against the Cliff Mining Company, and, by legal process, collects the amount of the
judgment, is estopped from making any objections to the sufficiency of his complaint, or to
the regularity or legality of any of the proceedings by virtue of which he obtained the
judgment and succeeded in collecting the full amount of his claim.
The petition for the writ of certiorari was filed in this court on the 11th day of January,
1890. On the 3d day of March the writ issued, and was made returnable on the 15th day of
March. On the 13th day of March two ex-parte affidavits were made on behalf of petitioner,
and we are asked to consider them as part of the record before us. The court to which a writ
of certiorari is addressed is required to comply by returning and certifying the record of its
proceedings.
the record of its proceedings. No more of the facts of the case will be required to be returned,
than those which are necessary to determine the point of jurisdiction, and the return is treated
as conclusive. No evidence will be received and examined unless it is embodied in the record
received from the court against which the writ is issued. (State ex rel. Thompson v. Board of
Equalization of Washoe County, 7 Nev. 87.) The justice of the peace had jurisdiction of the
subject matter. The writ will therefore be dismissed.
Since writing the above, the case of Carter et al. v. Green Mountain Gold Mining Co., has
been reported in 23 Pac. Rep. 317, and it supports the views herein expressed.
Belknap, J., dissenting.
I dissent from the judgment of the court upon the ground that the court of the justice of the
peace had no jurisdiction to make the order requiring the sheriff to pay the claimant the
amount of his preferred claim. A court of record, out of which an execution has issued, may,
in the exercise of its common-law powers, determine the application of the proceeds of the
execution. But courts of justice of the peace possess no common-law powers. Their functions
are such, and only such, as the legislature has conferred upon them. The statutes of the state
make no mention of orders of the character of the one under review. Applying the
well-established principle that courts not of record, and not proceeding according to the
course of the common law, derive all their powers from the statute, and take nothing by
implication, I am of the opinion that the order of the justice is void.
This conclusion is strengthened by a consideration of the provisions of the practice act
relating to appeals. Section 3352 of the General Statutes provides, among other things, that an
appeal may be taken from any special order of the district court made after final judgment,
but the statutes make no provision for appeals from orders of a similar nature made by the
justices of the peace. If justices have the authority exercised in the present case their orders
are final, while those of the district court are reviewable by appeal. This result is contrary to
the general plan of procedure established by our laws, and tends to show that the exercise of
the authority was not contemplated by the legislature.
____________
21 Nev. 33, 33 (1890) Ex Parte Curnow
[No. 1323.]
Ex-Parte NICHOLAS CURNOW.
Indictment for HomicideVerdict of Assault with Intent to Kill.Under an indictment for murder a defendant
may be lawfully convicted of an assault with intent to kill, under the statute which provides that in all
cases the defendant may be found guilty of any offense, the commission of which is necessarily included in
that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense
charged.
Application for discharge on habeas corpus.
The facts are stated in the opinion.
Baker & Wines for Petitioner.
I. Even though a court be one of general jurisdiction, if it attempts to pronounce a
judgment not warranted by law is judgment is an absolute nullity, and the writ of habeas
corpus is a proper one to invoke. (Ex-parte Rosenblatt, 19 Nev. 440; Ex-parte Lange, 18
Wallace, 176; Ex-parte Reed, 100 U.S. 23; Ex-parte Yarbrough, 110 U.S. 653; Ex-parte
Hans Neilsen, 131 U.S. 176; In re Snow, 120 U.S. 285; Ex-parte Hollis, 59 Cal. 406; People
ex rel. Tweed v. Liscomb, 60 N.Y. 565; Ex-parte Sylvester, 81 Cal. 199.)
II. The crime of an assault with intent to kill is not necessarily included in the charge of
murder, for the reason that the crime of murder may be committed without any intention on
the part of the slayer to take life, but the very gist of the crime of assault with intent to kill is
the intent to take life, existing in the mind of the defendant. (State v. Lopez, 15 Nev. 413,
State v. Huber, 8 Kan. 450; Sweeden v. State, 19 Ark. 206; Commonwealth v. Roby, 12 Pick.
500; Bishop Crim. Law, Vol. 1, Sec. 795; Ex-parte Gibson, 31 Cal. 628.)
III. The judgment and conviction in this case, not being supported by any charge in the
indictment, is unwarranted by the constitution, is a conviction without due process of law,
and is therefore null and void. (Ex-parte Hans Neilsen, 131 U.S. 176.)
Peter Breen, District Attorney, for the State.
(No brief on file.)
By the Court, Hawley, C.J.:
Petitioner was jointly indicted with William Curnow for the crime of murder.
crime of murder. The charging portion of the indictment is as follows: That heretofore,
to-wit, on or about the 13th day of September, A.D. 1889, * * * in the county of Eureka, state
of Nevada, the said defendants, William Curnow and Nicholas Curnow, did then and there
feloniously, unlawfully, premeditatedly, and with malice aforethought, shoot and wound one
William Courtney and inflict upon the body of him, the said William Courtney, a mortal
wound, of which mortal wound the said William Courtney, * * * on or about the 18th day of
October, A. D. 1889, * * * died. They were jointly tried under this indictment and found
guilty of an assault with intent to kill, and upon this conviction the court sentenced this
petitioner to six years' imprisonment in the state penitentiary, where he is now confined.
Petitioner contends that his imprisonment is illegal, because, as he claims, the verdict is
absolutely void, and that the court had no jurisdiction to impose such a sentence.
Is the verdict rendered by the jury responsive to the issues raised by the indictment? Can a
defendant under an indictment for murder be convicted of any offense less than
manslaughter? The answer to these questions depends, to some extent, upon the evidence that
was submitted at the trial, and it is questionable, to say the least, whether under the writ of
habeas corpus they can be reviewed where the petition simply sets forth the indictment and
verdict. It may be that under the proofs in this case the verdict was contrary to law, wholly
unwarranted and unauthorized by the evidence. The only question, however, which we are
called upon to determine in this proceeding is whether in any conceivable case, under any
possible state of facts, such a verdict can be sustained upon a charge of murder in the form
mentioned in the indictment. If it can, then it is admitted that petitioner should be remanded
to the custody of the warden of the state prison. Our statute provides that in all cases the
defendant may be found guilty of any offense the commission of which is necessarily
included in that with which he is charged in the indictment, or may be found guilty of an
attempt to commit the offense charged. (Gen. Stat Sec. 4292). It must be admitted that there
are many cases where the crime of an assault with intent to kill is not necessarily included in
the crime of murder. A defendant may, in certain cases, be convicted of murder in the first
degree when the evidence clearly show that there was no intent whatever upon the part
of the defendant to kill the deceased.
when the evidence clearly shows that there was no intent whatever upon the part of the
defendant to kill the deceased. If a defendant sets fire to a house, without any knowledge that
it is inhabited by any human being, with the intent only to commit the crime of arson, and a
person therein was killed by the burning of the house, the defendant could be indicted and
found guilty of murder (Gen. Stat. Sec. 4620.) So in all the cases enumerated in section 17 of
the act concerning crimes and punishment where the killing is committed in the perpetration,
or attempt to perpetrate, any arson, rape, robbery, or burglary. (Gen. Stat. Sec. 4581.) This is
precisely what was meant, and all that was decided in State v. Lopez, 15 Nev. 413, cited by
petitioner, wherein it was said that under this statute there may be murder without any intent
to kill.
There are other cases, that need not be here enumerated, where a conviction for murder
could be sustained against a defendant without any direct proof of an intent on his part to kill,
murder being the natural result and consequence of his unlawful act. But the assault and the
intent with which the assault is committed by the defendant are, in a majority of cases,
essential links in the chain of evidence necessarily included, as material ingredients
constituting the crime of murder. These acts, being included as a part of the entire transaction,
must necessarily be considered in determining the crime, if any, committed by the defendant.
If the crime of which the defendant is convicted can be legally carved out of the crime of
which he is indicted, the verdict is not void. In all cases of murder, where the injury inflicted
by the defendant is the mediate or immediate cause of the death, the jury would only be
justified, under an indictment for murder, in finding the defendant guilty of murder in the first
degree, murder in the second degree, or manslaughter.
In People v. Adams, where the defendant was indicted for murder, and convicted of assault
and battery, the supreme court, upon appeal, said: It is certainly a little singular that an
assault which is followed by death as its result should be regarded as anything but homicide.
If a crime at all, it must have been murder or manslaughter, and a verdict clearing a party
from that guilt is not in accordance with common sense. (52 Mich. 25.) But let us suppose a
case where the deceased is assaulted by the defendant with intent to kill him and the
deceased dies within a year and a day, thereafter, and the defendant is indicted for the
murder upon the theory of the prosecution, that the death was the result of the injuries
inflicted by the assault; but upon the trial the evidence upon the part of the defendant
shows, to the satisfaction of the jury, that the deceased did not die from the effects of the
wound, but from other causes entirely independent of the effects of the assault.
deceased dies within a year and a day, thereafter, and the defendant is indicted for the murder
upon the theory of the prosecution, that the death was the result of the injuries inflicted by the
assault; but upon the trial the evidence upon the part of the defendant shows, to the
satisfaction of the jury, that the deceased did not die from the effects of the wound, but from
other causes entirely independent of the effects of the assault. Would not the jury, in such a
case, be authorized to find the defendant guilty of an assault with intent to kill? In such a
case, would not the crime of an assault with intent to kill be necessarily included in the higher
offense with which he was charged in the indictment? Should the defendant in such a case,
after his conviction of the lesser crime, be discharged or held in the custody of the sheriff, to
answer before another grand jury for the crime for which the jury, on his trial for murder,
found he was guilty? Could not the defendant, if he was subsequently indicted for the lesser
crime, plead that he had been placed in jeopardy for the same offense by his former trial upon
the indictment for murder?
The questions involved in this proceeding have never been decided in this state, and it is
only in rare and exceptional cases that they are liable to be raised. There are, however, cases
in this and other states where analogous principles have been either decided or discussed
which have a direct bearingmore or lessupon the subject. The principles involved are
not, therefore, entirely new, novel, startling, or monstrous in their character.
In State v. Robey, the defendant was indicted for an assault with intent to murder, and was
found guilty of an assault with a deadly weapon, with intent to inflict bodily injury. The
indictment charged that Robey, without authority of law and with malice aforethought did
shoot at William Newsom, with a shotgun loaded with powder and leaden bullets, with intent
to kill him. It was claimed that the indictment would not sustain the verdict because it did
not charge an intent to do bodily injury. This court, after reviewing several authorities, said:
After a careful consideration of this appeal we are of the opinion that the judgment is
sustained alike by reason and authority. The defendant was fully informed by the indictment
of the charge against him and of the means employed in committing it. He is accused of intent
to murder by shooting; murder by shooting cannot be effected without bodily injury.
ing; murder by shooting cannot be effected without bodily injury. The offense of which he
was convicted is therefore necessarily embraced in the one charged. By the indictment he is
charged with the particular act of which he was convicted, but in a higher grade of crime. (8
Nev. 321, and authorities cited.)
In People v. Prague, similar in all respects to the Robey case, recently decided by the
supreme court of Michigan, the court said: Where the offense embraces different degrees,
and the highest degree is charged, it has been held that the person charged may be convicted
of any of the lesser degrees. Thus, if charged with murder in the first degree, he may be
convicted of murder in the second degree, or of manslaughter, or of assault and battery. The
reasons are that the offense springs from the same transaction, and is supported by the same
class of testimony. (40 N.W. Rep. 243.) In State v. Smith, the court declined to pass upon the
question whether a defendant could, in any case, under an indictment for murder, be
convicted of a simple assault, as it was not involved in the case. It was, however, said that the
only theory upon which defendant could have been acquitted of the homicide and convicted
of assault is that the wound inflicted was not the cause, mediate or immediate, of the death, a
theory which derives no countenance from the testimony. (10 Nev. 124.)
In Wilson v. State, where it was held that the defendant could not, under the charge of
murder, be convicted of cruel and unusual treatment of a slave, the court said: if a case
shall arise in which a party has made an unlawful, felonious assault on another, inflicting a
wound, and death follows the wounding, but from the evidence the jury are unable to say that
the wounding caused the death, yet, if the evidence shall clearly satisfy them that the assault
was made with the intent of taking life, a case may be presented authorizing the courts to
punish for the assault with the intent to commit murder upon an indictment charging the
commission of the offense. The record, however, does not present such a case, and its
discussion would be premature at this time. (29 Tex. 245.) Bishop says that if the
indictment is for murder, the verdict, when the prisoner is found guilty, may be either for
murder or manslaughter. If the indictment charges an assault, as most indictments for murder
do, the verdict may even be for the simple assault, or for a simple assault and battery, if the
allegation includes also a battery, except where the common-law rule prevails, that there
can be no conviction of a misdemeanor on an indictment for a felony."
sault and battery, if the allegation includes also a battery, except where the common-law rule
prevails, that there can be no conviction of a misdemeanor on an indictment for a felony. (2
Bish. Crim. Proc. Sec. 639.)
In Com. v. Roby, 12 Pick. 504, cited and relied on by petitioner, Chief Justice Shaw was of
opinion that the rule of the common law, as stated in the last clause of the above section from
Bishop, did not result from considerations peculiar to the administration of justice in
England, but from the broader consideration, that the offenses are, in legal contemplation,
essentially distinct in their nature and character, and that this is manifest from an examination
of the authorities. Entertaining this view, he held that in no case could a party on trial for
the one, be convicted for the other. There are many cases which declare that the reason upon
which the qualification of the rule was founded was that, upon a trial for misdemeanor in
England, the defendant had the privilege of making a defense by counsel, to have a copy of
the charge against him, and a special jury, which were not allowed in cases of felony. In this
country the rights of the defendant to a fair and impartial trial are as full and complete, and in
some respects greater, on a trial for felony than in cases of misdemeanor. Hence, in many of
the states, the qualification, stated by Bishop, has been departed from, upon the ground that,
the reason for it ceasing, the qualification ceased with it. In other states the qualification has
been abolished by statute. It has also been abolished in England. There are, however, a few
states that still adhere to the old common-law rule upon the subject. Whatever the weight of
authority may have been at the time the Roby case in Massachusetts was decided, in 1832, we
are of opinion that the views expressed by Chief Justice Shaw are not sustained by the weight
of the authorities as they exist at the present time. (Hanna v. People, 19 Mich. 318; Stapp v.
State, 3 Tex. App. 144; 1 Bish. Crim. Law, Sec. 804 et seq., and authorities there cited.) But,
in any event, that question is not directly presented in this case, as the crime of which
petitioner was convicted is of the same generic class as that charged in the indictment, to-wit,
a felony.
In Wright v. State, the court said: Assault and battery, which is simply a misdemeanor, is
not included in any of the degrees of homicide. The misdemeanor is merged in the felony.
The assault * * * which results in death, must belong either to felonious homicide embraced
in murder or manslaughter; or to justifiable or excusable homicide, as the execution of a
felon by due course of law, or in a proper measure of self-defense.
long either to felonious homicide embraced in murder or manslaughter; or to justifiable or
excusable homicide, as the execution of a felon by due course of law, or in a proper measure
of self-defense. In either event, the simple assault and battery no longer remains as such to be
punished. It is either merged, justified or excused. (5 Ind. 528.) But, it must be noticed that
this Indiana caselike the case of People v. Adams, 52 Mich. 24, where it was held that an
indictment charging murder, in the abbreviated statutory form, would not sustain a verdict for
the offense of assault and batteryrelates to that class of cases, to which we have heretofore
referred, where death resulted from the injuries inflicted by the assault. It will, for this reason,
readily be seen, as before stated, that the decisions in this class of cases have no
applicationcertainly no binding forceto a case like the one we have supposed to exist,
where the death of the deceased was not the mediate or immediate result of the assault, etc.
It has frequently been decided that a defendant indicted for rape may be found guilty of an
assault with intent to commit rape, or a simple assault, upon the reason that these minor
offenses were necessarily included in the crime of rape. The question, however, does not
solely depend upon the averments in the indictment, but also upon the character of the
evidence at the trial, as cases have arisen where the facts showed that the assault was not a
necessary ingredient of the crime of rape, or attempted rape. (State v. Pickett, 11 Nev. 259.)
The reason why a defendant indicted in the ordinary form, for murder, may be convicted of
manslaughter is that, if the averment that the killing was with malice aforethought be
negatived, or stricken from the indictment, there still remains a sufficient charge of
manslaughter. To constitute the crime of an assault with intent to murder, every ingredient of
murder must be present except the death of the party assaulted. In an indictment for murder it
is not necessary that the assault with intent to kill should be expressly charged in formal
words. It is sufficient, in the case we have supposed, if the murder charged necessarily
includes the assault. In determining the question whether, under such an indictment, a verdict
for the lower offense can be sustained, courts should look at the evidence submitted at the
trial, as well as to the language of the charge contained in the indictment. It has been decided
that a defendant may be found guilty of murder in the first degree, upon the finding of the
jury that he killed the deceased in the perpetration of robbery, or rape, etc., without any
allegation of that fact in the indictment.
a defendant may be found guilty of murder in the first degree, upon the finding of the jury that
he killed the deceased in the perpetration of robbery, or rape, etc., without any allegation of
that fact in the indictment.
The indictment in the case of the State v. Gray simply charged that the defendant, without
authority of law and with malice aforethought, killed R. H. Scott, by shooting him with a
shotgun. No question was raised in that case as to the sufficiency of the indictment; but the
verdict, as well as certain instructions given by the court, was sustained upon the sole ground
that the murder was committed by the defendant while attempting to commit a robbery. (19
Nev. 213.) In State v. Johnson, the indictment contained two counts, each alleging
premeditation, deliberation and other necessary ingredients of murder in the first degree.
There was no averment in either count that the murder was committed in the perpetration of a
robbery. The trial court, as in the Gray case, instructed the jury that, if they found from the
evidence that the killing was done in the perpetration of a robbery, it was murder in the first
degree. Upon appeal it was argued that, in the absence of an allegation in the indictment that
the killing was done in the perpetration of a robbery, the finding of such fact would not
authorize a verdict for murder in the first degree. The supreme court said: We are of a
different opinion. The indictment sufficiently alleges that the killing amounted to murder in
the first degree. It was not necessary to allege the facts and circumstances attending the crime.
The indictment sufficiently supported the proof of facts which constituted the killing murder
in the first degree, and under it proof was competent to show that the crime was committed in
the perpetration of robbery. (72 Iowa, 400, see also, Graves v. State, 45 N. J. Law, 347;
Titus v. State, 49 N.J. Law, 39.) Now it being true that none of the rights or privileges of the
defendant, guaranteed by the provisions of the constitution are violated, or any recognized
rule of law disregarded, by convicting him of murder in the first degree upon proofs that the
crime was committed in an attempt to commit robbery, under an indictment which described
the crime in the abbreviated statutory form, how can it consistently be claimed that such
rights and privileges are violated when he is convicted of a lesser offense, the ingredients of
which are included in the charge of murder? If the indictment need not in formal terms state
the attempt to commit robbery in the one case, why should it be necessary to allege the
assault with intent to kill in the other?
in formal terms state the attempt to commit robbery in the one case, why should it be
necessary to allege the assault with intent to kill in the other? Is not the defendant, in either
case, under an indictment in proper statutory form, duly informed of the nature and cause of
the accusation against him? In Graves v. State, supra, the court said: When the legislature,
commendably simplifying the form of the indictment, provided that in charging the crime it
should not be necessary to set forth the manner in which or the means whereby the death was
caused, but that it should be sufficient to charge that the defendant willfully, feloniously and
of his malice aforethought, killed and murdered the deceased, it merely provided that in a
charge of murder, a crime well understood and defined in the law, it should be enough to
charge the crime in language sufficient to designate it. It also provided that if the jury should
find the accused guilty of murder, they should by their verdict say whether it was murder of
the first or second degree. * * * The statute did not make murder of the first degree a separate
and distinct crime from murder of the second, but murder of each grade, after the passage of
the statute, continued to be, as it had theretofore been, the crime of murder. The indictment in
the statutory form is for the crime of murder, without regard to the degree. Under such an
indictment, the defendant is not only informed of the nature and cause of the accusation, but
is apprised of what it is exactly. It is a charge of murder, and the cause the willful and
felonious killing, by him, of the deceased, of his malice aforethought. The offense for which
he is called to answer is charged in the indictment. It is murder. According as he shall or shall
not be proved to have committed the crime of murder, he will be convicted or acquitted; and
if convicted, according as it shall be proved that he committed it under circumstances which
characterize the one degree or the other, so it will be found or adjudged with a view to his
punishment, and he will be punished accordingly. (45 N. J. Law, 358.)
It was unnecessary, in the indictment for murder against petitioner, to allege an assault
with intent to kill, in formal and express terms, but, under the averments in the indictment, all
the facts and circumstances in relation to the shooting of the deceased could be given in
evidence at the trial. The real questions, therefore, are, as before stated, (1) whether the
proofs upon the trial showed that there was an assault with intent to kill the deceased;
and, {2) if there was such an assault, whether that offense is, upon the facts, necessarily
included in the charge set out in the indictment.
proofs upon the trial showed that there was an assault with intent to kill the deceased; and, (2)
if there was such an assault, whether that offense is, upon the facts, necessarily included in
the charge set out in the indictment.
Supposing, as we have, that the facts of the case tended to show that the death of Courtney
was not in any manner to be attributed to the wound inflicted by the shooting, we proceed to
consider the cases which are directly in point.
In State v. Scott, 24 Vt. 127, the evidence was considered insufficient to show that the
death of the deceased resulted from the beating and wounding by Scott, but might have
resulted from other causes. It was held that the defendant, who was indicted for manslaughter,
might probably be convicted of assault and battery, although the indictment did not contain
any count specially charging the less offense. In Stapp v. State, the defendant was indicted for
the murder of one Finley, and upon the trial was convicted of an assault with intent to murder.
The question whether such a conviction could be sustained was reviewed at considerable
length. The court said: After a careful examination and consideration of the briefs and oral
argument of counsel, and the authorities cited, we believe that an indictment for murder
includes an indictment for an assault with intent to murder. (3 Tex. App. 146.) This
conclusion was partly arrived at by reason of the language used in paragraphs 6, 7, art 3096,
Pasch. Dig., which is as follows: (6) Every offense against the person which includes within
its assault with intent to commit said offense, when such assault is a violation of the penal
law. (7) Every offense includes within it an attempt to commit the offense when such offense
is made penal by law. These paragraphs do not, in our opinion, furnish any greater support
for such a conviction than the provisions of our own statute, and all the reasoning of the
court, and the facts of the case, are directly applicable to the questions we are considering and
the case we are supposing. The question was raised by the evidence, at the trial, whether
Finley died from the wounds inflicted by Stapp, or whether his death was to be attributed
entirely to engorgement of the lungs, produced by intoxication and exposure, and the
antecedent predisposition to pneumonia. Upon this state of the testimony, under an
indictment for murder by stabbing with a knife, the court charged the jury that if they
acquitted the defendant of the three degrees of homicidemurder in the first degree, in
the second degree, and manslaughterthat then they could consider whether the
defendant was guilty of assault to murder."
defendant of the three degrees of homicidemurder in the first degree, in the second degree,
and manslaughterthat then they could consider whether the defendant was guilty of assault
to murder. After a definition of the several degrees of homicide the court further charged the
jury as follows: Should you not believe beyond a reasonable doubt that the defendant is
guilty of either murder in the first or the second degree, or of manslaughter, but should you
believe, beyond such a reasonable doubt, that he is guilty of an assault with intent to murder,
you should so find. The court, after declaring that the allegations in the indictment were
sufficiently comprehensive to charge an assault with intent to murder, said: In the case at bar
the injury appears to have been inflicted with deliberate design, and in a vital part, with a
knife, charged to be a deadly weapon, in a manner and under circumstances [as the jury
doubtless concluded] well calculated to induce the belief that the accused intended to take
life, and without any extenuating circumstances. We think that the charge of the court upon
the offense of an assault with intent to murder was sufficiently specific. Taking the charge as
a whole, it was a clear and able exposition of the law applicable to the case, and was not
calculated to mislead the jury. The verdict of the jury was fully authorized by the evidence. *
* * If the defendant was surprised by the charge of the court, we cannot relieve him. He was
called upon by the indictment to meet every offense included in it. If the interpretation given
to the statute, both by the district court and this court, is an interpretation against public
policy,' the legislative department of the government is the one to go to to have the evil
corrected. The legislature, desiring to place this question beyond all cavil, subsequently
amended the statute by providing, in express terms, that murder includes assault with intent to
murder, and that assaults with intent to commit any felony include all assaults of an inferior
degree. (Code Crim. Proc. Tex. Art. 714.)
In Bean v. State, the indictment, charged the defendant with murder in the second degree,
and he was convicted of an aggravated assault and battery, and, notwithstanding the express
provisions of the code, it was contended by counsel that the conviction could not be sustained
because the essential elements of the latter offense were not set out nor embraced in the
charge in the indictment.
the charge in the indictment. The court, in reviewing this question, said: Independently of
this article 714, we are further of opinion that the indictment in this case is sufficient, even in
setting forth the offense of an aggravated assault and battery, under the seventh subdivision of
article 488 of the Penal Code, which makes an assault aggravated when a serious bodily
injury is inflicted upon the person assaulted.' Now, the indictment charges that the appellant
killed and murdered the deceased, by striking, beating, bruising and wounding him with a
stick.' It is clear that he could not have done this without inflicting bodily injury upon him. It
is true, the exact statutory words which we have quoted are not used in the indictment, but the
substituted words are, if not equivalent, certainly of more extensive signification than the
statutory words, and this is all that is required. (25 Tex. App. 355.)
In Davis v. State the defendant was indicted for murder, charged to have been committed
by shooting the deceased with a gun, and was convicted of an assault with intent to kill. The
statute of Arkansas is not essentially different in substance from the statute of our state. The
court, upon the questions applicable to this case, said: An assault with intent to kill, though a
felony by our law, is not one of the degree of homicide; but it is an attempt to commit
murder, and is virtually included in every murder that is committed by violence. All the
elements of murder, except the actual killing, must conspire to constitute the crime. * * * We,
therefore, conclude that, following the analogies of the previous decisions of this court,
reinforced, as they are, by direct provisions of the criminal code, if the proof fails to establish
all the allegations of the indictment, so as to warrant a conviction of the offense presented,
but at the same time shows the defendant is guilty of a substantial crime, necessarily
contained in the terms of the indictment, he may be found guilty of the minor offense. Cases
may readily be supposed where any other rule would operate to defeat justice; as, if the proof
should show that the person alleged to have been murdered was not in reality dead, or that he
died after the lapse of more than a year and a day, or from other causes than the wounds
inflicted by the accused. * * * The present indictment is in the abbreviated code form, and
does not in terms charge an assault upon the person of Adams, as the common-law form does.
Yet, as it sufficiently charges murder in the second degree, and as the offense for which
the prisoner was convicted is necessarily included in that charged, it may suffice for the
purpose, though there be no words specifically designating the offense so included."
murder in the second degree, and as the offense for which the prisoner was convicted is
necessarily included in that charged, it may suffice for the purpose, though there be no words
specifically designating the offense so included. (45 Ark. 469.)
In Smith v. State, the defendant was indicted, with two other persons, for the murder of S.
B. Canthron. The indictment, as in this case, charged that the offense was committed by
shooting the deceased with a gun. There was testimony tending to show that Canthron may
have died from the effects of pneumonia instead of from the wound. There was also
testimony tending to show that the wound inflicted by the defendant was likely to bruise the
lung and cause pneumonia. The defendant was convicted of murder in the first degree. Upon
appeal he claimed that the court erred in refusing to give the following instruction: If the jury
believe from the evidence, beyond a reasonable doubt, that the defendant participated in the
shooting of deceased, but fail to find that death resulted from said wound, they may find
defendant guilty of an assault with intent to kill, but not of murder or manslaughter. The
court said: It is most probable from the testimony that Canthron died from pneumonia or
congestion of the lung caused by the wound inflicted by the appellant, or so aggravated by it
as to hasten death. In either event, the wound should be regarded as the juridical cause of
death, and the prisoner held to the consequences. * * * But, in determining whether the court
ought or ought not to have instructed the jury on the question of a lower offense included in
the greater charge, we look to the record only to see if there is any testimony to base it on.
(Fagg v. State, 50 Ark. 506.) We do not stop to weigh it, and thus try to ascertain what effect,
if any, it might have had with the jury. Where the defendant is shown to have inflicted a
malicious wound, and the proof shows that death ensues from it, and he seeks to evade the
consequences by showing that his act was not the cause, nor the cause of the cause, of death,
the evidence should be very plain to warrant the jury in agreeing to his version. But, if there is
any evidence to sustain his theory, it must be submitted to the jury under proper instructions
from the court. The court has no discretion to withhold instructions appropriate to any theory
of the cause sustained by competent evidence. * * * For the error indicated, the judgment is
reversed. (50 Ark. 549.)
In State v. Parker, the court said: It is urged by counsel for defendant that the verdict of
guilty of an assault with an intent to commit a great bodily injury, upon the indictment for
murder, is unauthorized by law. Code, Sec. 4466, provides that the defendant may be found
guilty of an offense, the commission of which is necessarily included in that with which he is
charged in the indictment.' It cannot be doubted that an assault is included in the crime of
murder. Usually an indictment, in express words, charges an assault with felonious intent. Of
necessity, an assault must have been literally committed in all cases of murder by direct
violence. The intent with which the assault is committed relates to its character, and indicates
its degree. It is discovered, not in the extent or nature of the violence, but in the animus of the
perpetrator. It follows that an assault, whether with an intent to murder, to maim, or to inflict
a great bodily injury, is included in the crime of murder. It is the settled doctrine of the law in
this state that an assault is included in the crime of murder; the intent with which the assault
is committed does not exclude it. This case illustrates the reasonableness of the rule we
recognize. The indictment alleges assault upon the deceased, who was a child, the failure and
refusal of defendant to furnish him with medical treatment and care, and the compelling of
the child to work while wounded and bruised. Now, if the jury found that death resulted, not
from the assaults and treatment received from defendant, but from disease, and also found
that defendant did assault the child with intent to inflict a great bodily injury, their verdict is
authorized by the law, the assault being included in the charge of murder. (66 Iowa, 589.)
From this review of the authorities it seems to us perfectly clear that petitioner should not
be either discharged, or remanded to the custody of the sheriff of Eureka county. Petitioner is
remanded to the custody of the warden of the state prison.
____________
21 Nev. 47, 47 (1890)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JULY TERM, 1890.
____________
Volume 21
____________
21 Nev. 47, 47 (1890) Walcott v. Wells
[No. 1322.]
JOSEPHINE WALCOTT, Petitioner, v. THOMAS H. WELLS, ACTING PRESIDING
JUDGE OF THE DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR
THE COUNTY OF WHITE PINE AND SAID DISTRICT COURT, Respondent.
Writ of ProhibitionImproperly Invoked.A writ of prohibition will not issue to prevent an inferior court from
trying an action once properly before it, but claimed to have been afterwards dismissed, as the question of
dismissal was a proper one for the inferior court to decide; nor will the writ issue upon the claim that the
action has been transferred to the circuit court of the United States, as that question is also a proper one for
the inferior court to decide, subject to appeal, and for the further reason that the decision of this court
would not be final should the United States court decide otherwise and remand the action to the state court
for trial, and in either event error in the inferior court is only reviewable on appeal or by petition to the
United States court.
District JudgeDe Facto Officer.By statute of 1885, p. 60, the state of Nevada was made one judicial district
with but one judicial office in connection therewith, to-wit, the office of district judge, and three district
judges, each having equal and co-extensive jurisdiction and powers throughout the state to hold
district court in any county and to exercise all duties pertaining to the office of
district judge.
and powers throughout the state to hold district court in any county and to exercise all duties pertaining to
the office of district judge. The constitutionality of this statute was affirmed by the supreme court in State
ex rel. Coffin v. Atherton et als. 19 Nev. 332. While this statute was in operation the legislature by
statute of 1889, p. 122, increased the number of district judges to four, and directed the governor to
immediately appoint an additional district judge to hold office until the next general election, when four
district judges should be elected. Under the latter statute the governor appointed respondent district judge,
who, at the time of the commencement of this proceeding, had held such office and exercised the functions
thereof for more than a year with the acquiescence and recognition of the state, county officers and the
people generally. Held, that irrespective of the question of the constitutionality of the statute of 1889,
respondent is a de facto district judge and that his official acts are valid so far as the rights of third persons
or the public are concerned. (Belknap, J., dissenting.)
Proper RemedyQuo WarrantoProhibition.The question of the constitutionality of the statute increasing
the number of district judges to four and the right of respondent to hold the office of district judge under
that statute, can only be raised by a direct proceeding of quo warranto and is not properly before the court
by a proceeding for a writ of prohibition. (Belknap, J., dissenting.)
Original application for the writ of prohibition.
A. C. Ellis, for Petitioner.
I. The action was dismissed. The plaintiff filed a proper precipe of dismissal with the
clerk on February 7, 1890, and the clerk did not demand fees until February 9, 1890, and not
then as a condition precedent to filing or entering the dismissal. As to the necessity of the
prepayment of costs and the consequence of non-payment, see Hancock Ditch Co. v.
Bradford, 13 Cal. 637; Tregambo v. Comanche M. & M. Co., 57 Cal. 501. It is admitted that
the defendants mailed a copy of the answer to plaintiff's attorney at Eureka, on the 6th day of
February before it was filed, and that it was filed three days thereafter and that this is the only
service ever made in the case. That this is no service is no longer an open question. (Lyon Co.
v. Washoe Co., 8 Nev. 177; Johnson v. Badger M. & M. Co., 12 Nev. 261; Reese G. & S. M.
Co. v. Rye Patch M. Co., 15 Nev. 341.)
II. If not dismissed, the suit was transferred to the U.S. circuit court by filing the petition
and bond in the court below on the 2d day of March, 1890. When the jurisdiction is in
another court, then the one threatening to try the case should be prohibited by the writ of
prohibition.
another court, then the one threatening to try the case should be prohibited by the writ of
prohibition. (Sheehy v. Holmes, Superior Court, 55 Cal. 486; Ex-parte Williams, 4 Ark.
(Pike,) 537; 8 S. E. Rep. 488; 4 S. E. Rep. 782; 3 Southern Rep. 380; 12 Am. Dec. 596; High
Ex. Legal Rem. Par. 775.)
III. The law of 1889 is unconstitutional and void as shown by oral argument in this case.
Being void, the fourth judge, as such, may be prohibited by the writ of prohibition from
proceeding to exercise judicial powers and functions in any given case when the writ is
invoked. (Ex-parte Roundtree, 51 Ala. 51; High Ex. Legal Rem. Sec. 775; State v. Com. of
Roads, 12 Am. Dec. 604; Kirby v. Superior Court, 68 Cal. 604.) When a law is
unconstitutional under which a person claims to exercise authority, such authority may be
attacked and disregarded in any form of proceeding.
Wren & Cheney and Henry Rives, for Respondent.
I. The object and purpose of a writ of prohibition is to enable superior courts to confine
inferior judicial tribunals within the limits of their rightful jurisdiction. (Note to 12 Am. Dec.
604, 607; Smith v. Whitney, 11 U.S. 176; Thompson v. Tracey, 60 N. Y. 31; Ex-parte
Brablacht, 2 Hill, 367.)
II. If the inferior tribunal has jurisdiction of the subject matter and parties to the action,
any action therein, however irregular or erroneous, does not authorize the issuance of the writ
of prohibition. The party aggrieved has a plain, adequate and speedy remedy at law, by
appeal, writ of error, etc., and must pursue that remedy. (High Ex. Legal Rem. Secs. 767, 770,
771 and 772; Note to 12 Am. Dec. 608; Low v. Crown Point Mg. Co., 2 Nev. 75; Ex-parte
Gordon, 104 U.S. 515; Ex-parte Ferry Co., 104 U.S. 519; Ex-parte Pennsylvania, 109 U.S.
174; Smith v. Whitney, 116 U.S. 176.)
III. Title to office can not be tried by a writ of prohibition. That question can only be
determined in a direct proceeding brought for that purpose, upon information in the nature of
quo warranto, or an action for usurpation of office under the statute. (High Ex. Legal Rem.
Sec. 49; Buckner v. Veuve, 63 Cal. 304; Hull v. Superior Court, 63 Cal. 174; People v.
Sassovich, 29 Cal. 480; Satterlee v. San Fran., 23 Cal. 314; People v. Scannell, 7 Cal. 438;
People ex rel. Smith v. Olds, 3 Cal.
Cal. 167; People v. Stevens, 5 Hill 616; Ex-parte Daugherty, 6 Ired. 155; Fitch v.
McDiarmid, 26 Ark. 482.) The question must first be presented in the lower court. (Note to
12 Am. Dec. 609; High Ex. Legal Rem. Sec. 765.) Proceedings to determine the title to office
must be prosecuted in the name of the people of the state. (Fraser v. Frelon, 53 Cal. 644;
Gen. Stats. of Nev. Secs. 3342, 3711.)
IV. Respondent still has jurisdiction of the case. The attempt to dismiss the action did not
divest the district court of jurisdiction. (Page v. Page, 77 Cal. 83; Page v. Superior Court, 76
Cal. 372.) The filing of the answer, whether served or not, prevented the clerk from
dismissing the action, and gave the court jurisdiction to determine its sufficiency. (Maples v.
Geller, 1 Nev. 233; Ah Goon v. Superior Court, 61 Cal. 555.) The filing of the petition and
bond for removal did not oust the court of jurisdiction so that its subsequent proceedings in
the action can be arrested by prohibition. (Ches. & O.R.R. Co. v. White, 111 U.S. 134;
Ex-parte Mobile & O.R.R. Co., 63 Ala. 349.) Notwithstanding the filing of the petition and
bond for removal of the cause it still remained for the district judge to determine from the
proceedings, petition and record of the case up to the time when the petition was filed,
whether or not the case was removable. (Burlington R. R. Co. v. Dunn, 122 U.S. 513; Stone v.
South Carolina, 117 U.S. 430.) The district court did not err in denying the motion to
remove. The plaintiff must abide by the decision of the tribunal which she voluntarily sought
in the first instance. (Wedekind v. Southern Pacific Co., 13 Saw. 139.)
This is an application by the petitioner for a writ of prohibition to prevent the trial of the
case of Walcott v. Watson et al. in the district court of White Pine county.
1. Petitioner claims that the court has no jurisdiction to try the case (1) because it has been
dismissed; (2) that if not dismissed, it has been transferred to the circuit court of the United
States.
The writ of prohibition is an extraordinary remedy, and should be issued only in cases of
extreme necessity. Before it should issue, it must appear that the petitioner has applied to the
inferior tribunal for relief.
the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting
without authority of law in cases where wrong, damage and injustice are likely to follow from
such action. It does not lie for grievances which may be redressed in the ordinary course of
judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion,
to be issued or refused according to the facts and circumstances of each particular case. Like
all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of
justice, and securing order and regularity in judicial proceedings in cases where none of the
ordinary remedies provided by law are applicable. The writ should not be granted except in
cases of a usurpation or abuse of power, and not then, unless the other remedies provided by
law are inadequate to afford full relief. If the inferior court has jurisdiction of the
subject-matter of the controversy and only errs in the exercise of its jurisdiction, this will not
justify a resort to the extraordinary remedy by prohibition.
The district court has unquestioned jurisdiction of the subject-matter of the action of
Walcott v. Walson et al. Petitioner, after submitting her cause to the jurisdiction of that court,
sought to dismiss the action. A controversy arose as to whether or not the action was
dismissed before the filing of defendant's answer setting up a counter-claim. This was a
question for the district court to decide. It may have erred in deciding it adversely to
petitioner; but if it did, the petitioner would have redress by an appeal to this court, if the final
judgment should be rendered against her. The same principle applies to the second ground
relied upon. It was within the jurisdiction of the court to determine whether or not the case
had been transferred. If the court erred in its ruling upon this question, petitioner could have
redress in the same manner, by appeal, or she might apply by petition to the circuit court of
the United States to have the case transferreda proceeding involving but little, if any,
greater expense or delay than will be incurred by this application. Moreover, that question
ought not to be raised by this extraordinary remedy in this court. The decision thereon would
not be final. If it was considered and decided by this court that the cause was transferred, the
circuit court might, when it came up in that court, decide otherwise, and send it back to the
state court for trial. It is a principle which lies at the very foundation of the law of
prohibition that the jurisdiction is strictly confined to cases where no other remedy exists;
and it has always been held to be a sufficient reason to refuse to issue the writ where it
clearly appears that the petitioner therefor has another plain, speedy and adequate
remedy at law.
which lies at the very foundation of the law of prohibition that the jurisdiction is strictly
confined to cases where no other remedy exists; and it has always been held to be a sufficient
reason to refuse to issue the writ where it clearly appears that the petitioner therefor has
another plain, speedy and adequate remedy at law.
In Martin v. Sloan, after a temporary injunction was dissolved in an action brought by an
administrator, the defendant therein moved for an assessment of damages on the injunction
bond. During the proceedings a new administrator was substituted. One of the sureties on the
injunction bond instituted this proceeding, and applied for a writ of prohibition to prevent the
court from proceeding any further upon the motion for damages, on the ground that the
original suit had abated, and the jurisdiction of the court terminated. The court said: This is
plainly no case for the issuance of a writ of prohibition. Should the trial court enter a finding
and judgment for damages against petitioner and the other sureties on the injunction bond,
any one of them aggrieved may review that result by appeal or writ of error, on taking proper
steps to that end. Any error that the court may make in determining the proper limits of its
jurisdiction in the premises can be effectively corrected by any of the usual modes of
reviewing judgments. The writ of prohibition should issue only in circumstances where the
ordinary remedies are inadequate to the ends of justice. Where, as here, an appeal or writ of
error furnishes a complete and effective remedy for an error of the court below prejudicial to
the rights of a party, this extraordinary remedy should be denied. (11 S. W. Rep. 558; see,
also: People ex rel. Loveland v. District Court, 11 Colo. 574; Buskirk v. Judge Circuit Court,
7 W. Va. 91; Fleming v. Commissioners, 31 W. Va. 619; Supervisors v. Wingfield, 27 Grat.
333; State ex rel. Patten v. Houston, Judge, 40 La. Ann. 393; State ex rel. Mayer v. Rightor,
Judge, 40 La. Ann. 839; Wilson v. Berkstresser, 45 Mo. 283; People ex rel Adams v.
Westbrook, 89 N. Y. 152; Turner v. Mayor, 78 Ga. 687; People v. Wayne Circuit Court, 11
Mich. 403; People ex rel. Marks v. Hills, 16 Pac. Rep. 405; Powelson v. Lockwood, 82 Cal.
615; High, Extr. Rem. Sec. 765 et seq.)
2. Petitioner next contends that the writ should be issued to prohibit respondent, Wells,
from acting as judge upon the trial of said cause, upon the ground that he is not one of the
district judges authorized to try cases in the district court of the state of Nevada; that he
is acting as a judge without any authority of law; that he has in defiance of law and
without any jurisdiction, "usurped the authority and power to try said cause, in that the
law under which he was appointed and commissioned by the governor is wholly void, and
of no effect."
district judges authorized to try cases in the district court of the state of Nevada; that he is
acting as a judge without any authority of law; that he has in defiance of law and without any
jurisdiction, usurped the authority and power to try said cause, in that the law under which
he was appointed and commissioned by the governor is wholly void, and of no effect. On the
other hand, it is claimed that the right of respondent, Wells, to exercise and perform the
functions of a district judge, and his title to the office of district judge, cannot be raised, tried
or determined in this proceeding; that the constitutionality of the act of the legislature under
which he was appointed to the office is not involved, and cannot be attacked, and should not
be considered or decided herein; that the validity of the act, in so far as it involves
respondent's title to the office, can only be considered and determined in proceedings in the
nature of quo warranto instituted, as provided by statute, for the purpose of determining his
right to hold said office; that until such a proceeding is instituted, and until it is decided
therein that he has no right or title to the office, he is, as to third persons and the public, at
least a de facto officer; and that all his acts as such are valid and binding, and that there is no
valid reason why he should not be permitted to try petitioner's case, as well as the cases of
other litigants pending in the court over which he presides. Which contention is correct? First,
let us consider the facts upon which the respective claims are based.
The act supplemental to and amendatory of an act entitled An act to redistrict the state,
etc., approved March 4, 1885, was approved March 12, 1889; and section 1 of said act reads
as follows: The number of district judges in the judicial district of the state of Nevada shall,
from and after the passage of this act, be four; and the governor of said state shall
immediately upon the passage of this act, appoint a district judge from said judicial district to
hold such office under such appointment until the next general election, when four district
judges from said judicial district shall be elected. (Stat. 1889, 122.) There was, at the time of
the passage of this act, a district court legally constituted, constitutionally organized and
existing by virtue of law, to be held in every county of the state. The office of district judge
also legally existed. There was but one judicial district for the entire state, but one district
court, and one judicial office in connection therewith to be filled, to-wit.: the office of
district judge of the district court of the state of Nevada.
filled, to-wit.: the office of district judge of the district court of the state of Nevada. This
office was then filled by three district judges, each having equal and co-extensive and
concurrent jurisdiction and power throughout the state to hold the district court in any county,
and to exercise and perform the powers, duties, and functions of the court, and all other duties
pertaining to the office of district judge. These judges were authorized to elect a presiding
judge, who had, among other things, the power to direct the district judges to hold court in the
several counties as the public business might require. (Stat. 1885, 60; State ex rel. Coffin v.
Atherton, 19 Nev. 332.)
The legislature, in 1889, deeming it to be necessary for the proper and speedy transaction
of judicial business in the district court, and believing that they were authorized to increase
the number of district judges, passed the act in question, authorizing the governor to appoint
another judge. This act did not create any new court or new officer. It simply provided for an
increase of judges. There were to be more officersan additional district judge to preside in
the district court, and perform the functions and exercise the powers of a district judge
throughout the state. The governor, pursuant to the provisions of the supplemental act,
appointed and commissioned the respondent as a district judge. There was no first, second,
third, or fourth judge. But there were four district judges, each commissioned to fill the one
office of district judge; each apparently at least, authorized to hold court, not in any particular
county, but in each and every county in the state. We are bound to take judicial notice of the
fact that, after respondent was commissioned and sworn into office, he was assigned by the
presiding judge of the judicial district to hold the district court in the county of White Pine,
and certain other counties; that immediately thereafter he commenced to discharge the duties
pertaining to the office of district judge; and that for more than a year past he has been
recognized by the state and county officers, and by the people of this state, as one of the
district judges, and that his right to perform the duties of the office of district judge, and
receive the salary pertaining thereto, has never been questioned until this proceeding was
instituted. It is a general rule, of universal application, that the acts of an officer de facto are
valid and binding as to third persons and the public, and cannot be questioned except in a
direct proceeding instituted for that purpose by quo warranto.
direct proceeding instituted for that purpose by quo warranto.
In Coyle v. Commonwealth, the defendant, on trial for murder, contended that the judge
was acting under an unconstitutional law, and that he had no jurisdiction to try the case. The
supreme court said: The question sought to be raised by the prisoner's special plea to the
jurisdiction is not properly before us. The rightful authority of a judge, in the full exercise of
his public judicial functions, cannot be questioned by any merely private suitor, nor by any
other, excepting in the form especially provided by law. A judge de facto assumes the
exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open
to the attack of the sovereign power alone. If the question may be raised by one private suitor,
it may be raised by all; and the administration of justice would, under such circumstances,
prove a failure. It is not denied that Judge McLean was a judge de facto, and if so he is a
judge de jure as to all parties except the commonwealth. The attorney general, representing
the sovereignty of the state, by a writ of quo warranto, might properly present this
constitutional question for our consideration, but it cannot come before us from any other
source, or in any other form. (104 Pa. St. 130; see, also, to same effect, Clark v.
Commonwealth, 29 Pa. St. 129; Commonwealth v. McCombs, 56 Pa. St. 436; People v.
Sassovich, 29 Cal. 485; Buckner v. Veuve, 63 Cal. 304; Carleton v. People, 10 Mich. 251;
People v. White, 24 Wend. 524; Fowler v. Bebee, 9 Mass. 231; Sheehan's Case, 122 Mass.
445; Commonwealth v. Taber, 123 Mass. 253; In re Boyle, 9 Wis. 264; State v. Bloom, 17
Wis. 521; Ex-parte Johnson, 15 Neb. 512; Trumbo v. People, 75 Ill. 565; State v. Meehan, 45
N. J. Law, 192; State v. Vickers, 51 N. J. Law, 180; Keith v. State, 49 Ark. 442; State v.
Fuller, 96 Mo. 167; In re Cleveland, Mayor, 17 Atl. Rep. 772; Jewell v. Gilbert, 64 N. H. 14;
Baker v. State, 69 Wis. 37; Hull v. Superior Court, 63 Cal. 177.)
But petitioner contends that respondent is not a de facto officer, that the conditions
necessary to constitute such an officer do not exist, that there is no office to be filled, that it is
a legal impossibility for a fourth judge to fill the office of district judge, because the office
has always been full, and that for these reasons the rule above stated has no application to
this case. We admit that there can be no officer, either de jure or de facto, if there be no office
to fill; that an office attempted to be created by an unconstitutional law has no legal
existence, is without any validity, and that any person attempting to fill such a pretended
office, whether by appointment or otherwise, is a usurper, whose acts would be
absolutely null and void, and could be questioned by any private suitor, in any kind of an
action or proceeding.
by an unconstitutional law has no legal existence, is without any validity, and that any person
attempting to fill such a pretended office, whether by appointment or otherwise, is a usurper,
whose acts would be absolutely null and void, and could be questioned by any private suitor,
in any kind of an action or proceeding. It would be a misnomer of terms to call a person an
officer who holds no office. A public office can not exist without authority of law. An
office can not be created by an unconstitutional act, for such an act is no law. It confers no
rights, imposes no duties, affords no protection, furnishes no shield, and gives no authority. It
is in legal contemplation to be regarded as never having been possessed of any legal force or
effect, and is always to be treated as though it never existed. (State ex rel. Stevenson v. Tufly,
20 Nev. 428; Norton v. Shelby Co., 118 U.S. 442.) If, therefore, the contention of counsel for
petitioner has any solid foundation for its support, the conclusions to be drawn therefrom
should be sustained. But, if the contention is wholly unsupported and unwarranted by the
facts, then the entire fabric upon which the claim is made must fall; it having nothing to
support it.
The case of Ex-parte Roundtree 51 Ala. 40, wherein a writ of prohibition was issued to a
circuit judge to prohibit him from proceeding in a case, is relied upon by petitioner's counsel
to sustain his position. That case, however, is wholly different in its facts, and is plainly
distinguishable from this. There the legislature of Alabama passed an act, by its terms
creating a new court, to be known as the law and equity court of Morgan county, and
provided that the judge of the fourth judicial circuit of Alabama shall be the judge of said
court of law and equity. This act was held to be unconstitutional because it took from the
qualified electors of Morgan county the power of electing a judge. The court attempted to be
created by an unconstitutional law, had no legal existence. Here the district court in which
respondent is presiding had a legal existence prior to and at the time of his appointment, and
was not created by virtue of the act authorizing his appointment. We refer to two other
decisions, similar to the Alabama case, for the purpose of illustrating the particular character
of cases to which the argument of petitioner's counsel would apply, and to show the
distinction in the facts between such cases and the one under consideration.
The legislature of Kentucky attempted, in an unconstitutional manner, to abolish the
constitutional court of appeals, and to create a new court of appeals, in direct violation of the
plain provisions of the constitution of the state. The constitutional court of appeals, in
Hildreth's Heirs v. McIntire's Devisee, 1 J. J. Marshall 206, held that there could be but one
court of appeals, and that such a thing as a de facto court of appeals could not exist under the
constitution, and as no such court existed the gentlemen appointed to preside over such a
court were not de facto officers. In Norton v. Shelby Co., 118 U.S. 426, on writ of error from
the supreme court of Tennessee to the supreme court of the United States, the legislature had
attempted, by an unconstitutional act, to abolish what was known as the Quarterly Court,
composed of the justices of the peace of Shelby county, and to create in its stead a board of
commissioners consisting of three members, it was held that, as this board of commissioners
never had a lawful existence the members thereof were not de facto officers, and that all the
acts of the pretended board were null and void. The distinction in the facts between the cases
referred to and the present one is so clear, plain and manifest, that no one ought to be misled
in applying the legal principles which control the respective class of cases. In each of the
cases referred to, no court or office known to the law existed, to be filled by any one. Here the
court and the office existed by virtue of the constitution and a valid law. There the right of the
pretended officers to perform the functions of the pretended office was not admitted by any
one, but, on the contrary, was directly disputed and drawn in question when the respective
persons attempted to act. In Norton v. Shelby Co. the members of the quarterly court not only
denied the right of the supervisors to act, but instituted proceedings by quo warranto to
remove them from office; and such proceedings were pending in the courts at the time the
acts under review in that case were performed. Here the right of respondent to act as district
judge was never disputed, and his authority to act was publicly recognized and acquiesced in.
What constitutes a de facto officer? This court in Mallett v. Uncle Sam G. & S. M. Co., 1
Nev. 197, said that an officer de facto is on the one hand distinguished from a mere usurper
of the office, and on the other hand from an officer de jure. In Meagher v. Storey Co., 5 Nev.
245, it was said that acts performed by a city recorder as a committing magistrate, though
the statute authorizing him to so act is unconstitutional and void, are to be regarded as
the acts of a de facto officer, and valid as to third persons and the public.
formed by a city recorder as a committing magistrate, though the statute authorizing him to so
act is unconstitutional and void, are to be regarded as the acts of a de facto officer, and valid
as to third persons and the public. In State ex rel Corey v. Curtis, 9 Nev. 338, we had
occasion to examine and discuss, to a limited extent, the question as to what constitutes an
officer de facto. The rules taken from the authorities were there announced as follows: (1)
One who has the reputation of being the officer he assumes to be, and yet is not a good officer
in point of law. (2) One who actually performs the duties of an office, with apparent right,
and under claim and color of an appointment or election. (3) One who has the color of right
or title to the office he exercises. (4) One who has the apparent title of an officer de jure.
In State v. Carroll, Chief Justice Butler gave the following complete definition of a de
facto officer: An officer de facto is one who acts, though not those of a lawful officer, the
law, upon principles of policy and justice, will hold valid so far as they involve the interests
of the public and third persons, where the duties of the office were exercised: First. Without a
known appointment or election, but under such circumstances of reputation or acquiescence
as were calculated to induce people, without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumed to be. Second. Under color of a known and valid
appointment or election, but where the officer had failed to conform to some precedent
requirement or condition, as to take an oath, give a bond, or the like. Third. Under color of a
known election or appointment, void because the officer was not eligible, or because there
was a want of power in the electing or appointing body, or by reason of some defect or
irregularity in its exercise; such ineligibility, want of power, or defect being unknown to the
public. Fourth. Under color of an election or appointment by or pursuant to a public
unconstitutional law, before the same is adjudged to be such. (38 Conn. 471.) This definition
has been accepted, approved, and followed, in its entirety, in all the numerous subsequent
cases where the question has been discussed, and was referred to with approbation by this
court in State ex rel. Harris v. Blossom, 19 Nev. 317.
In Taylor v. Skrine, decided in 1815, it was sought to set aside a decree on the ground
that it was made by a person who was not constitutionally qualified to preside as judge.
a decree on the ground that it was made by a person who was not constitutionally qualified to
preside as judge. There was an act in South Carolina authorizing the governor to appoint and
commission some fit and proper person to sit as judge in case any of the judges on the circuit
should happen to be sick or unable to hold the court in his circuit. The judge who made the
decree was appointed pursuant to the provisions of that act. After the rendition of the decree
the act was declared void by a decision of the supreme court. The question was whether all
the acts of the judge so appointed were necessarily void. The court, in answering this
question, said: The judge in this case acted under color of legal authority. He had a
commission under the seal of the state, signed by the governor, and authorized by an act of
the legislature. * * * The public acts of officers de facto are often valid although the authority
under which they act is void. Public convenience as well as public justice, requires that they
should be supported. It would lead to incalculable mischief if all the proceedings under the
several judges who have been thus appointed should be declared null and void. (3 Brev.
516.)
The cases of State v. Carroll, supra, and Ex-parte Strang, 21 Ohio Stat. 610, are similar in
their facts to that of Taylor v. Skrine; the difference being only that in the South Carolina case
the law authorizing the appointment of a temporary judge had been declared unconstitutional
before the decision in Taylor v. Skrine was rendered, and in the other cases the court declined
to pass upon the constitutional question, holding it to be unnecessary so to do, as the
temporary presiding judge was at least a de facto officer, and that his acts were valid and
binding as to the public and third persons. We are of opinion that the facts of the present case
bring respondent clearly within the definition of a de facto officer, as given in State ex rel.
Corey v. Curtis and State v. Carroll, even if the act authorizing his appointment is
unconstitutional, and that the case comes clearly within the principle of law as stated in the
three cases above quoted from or referred to. In those cases the office was full. There was no
vacancy. The law authorizing the appointment of a temporary judge had either been declared
unconstitutional, or, for the purpose of the decisions, admitted to be unconstitutional. The
temporary judge acted in the place of the judge de jure, under color of authority derived from
an unconstitutional statute by virtue of his commission, etc.
constitutional statute by virtue of his commission, etc. Here respondent did not take the place
of either of the three other judges, for there was no separate place for either to fill, except by
the assignment of the presiding judge. He was acting by virtue of his commission, in his own
right by the consent of the other judges, and was assigned to the place by the presiding judge,
and was the only judge presiding in the district court of the state in and for the county of
White Pine. He acted as a district judge, filled the office, and presided in court, under as
much color of authority as either of the temporary judges in the cases referred to. Why should
not the same shield of protection to the public be given to his acts?
The doctrine which gives validity to acts of officers de facto, whatever defects there may
be in the legality of their appointment or election, is founded upon considerations of policy
and necessity, for the protection of the public and individuals whose interests may be effected
thereby. Offices are created for the benefit of the public, and private parties are not permitted
to inquire into the title of persons clothed with the evidence of such offices, and in apparent
possession of their powers and functions. For the good order and peace of society, their
authority is to be respected and obeyed until, in some regular mode prescribed by law, their
title is investigated and determined. It is manifest that endless confusion would result if in
every proceeding before such officers, their title could be called in question. Norton v.
Shelby Co., 118 U.S. 441.
In Leach v. People ex rel. Patterson, 122 Ill. 420, the legislature having passed an act in
violation of the constitution of the state of Illinois, taking the management of county affairs
under township organizations from the supervisors of the several towns, consisting of fifteen
members, and vesting the same in a board of supervisors consisting of only five members, it
was contended, as it is contended here, that there was no de jure office for the supervisors to
fill; and Norton v. Shelby County, was relied upon to sustain this position. Chief Justice
Sheldon, speaking for a majority of the members of the supreme court, in answer to this
contention said: Whatever township organization prevails, there is in every county a board
of supervisors for the transaction of the affairs of the county. The act in question merely
changed the number of the members of the board from fifteen to five, and the mode of
election from towns singly to two or more unitedly, and the term of office.
singly to two or more unitedly, and the term of office. Nothing was added to or taken from
the powers or duties of the board. After the passage of the act there still remained the board of
supervisors of Wayne county, the official body for the management of the county's affairs,
and the persons elected as members under the act went on, under the sanction of the statute,
and exercised the powers and duties of the board of supervisors of Wayne county without
question. There was no rival board, but it was the sole acting board of supervisors in Wayne
county. There was all the while the legally established office or official body of the board of
supervisors. It appeared in that case that the new members of the board were elected in
pursuance of the act, and entered upon the duties of their office, and went on and exercised
the powers and duties of the board of supervisors of Wayne county for years, without
question of their right to do so. They had the sole management and transaction of the affairs
of the county, and did all the official legislative business of the county (just as respondent,
Wells, had the sole management of the affairs of the district court in White Pine county, and
did all the judicial business of the county that was done). There was no other official body
ready and willing to do it. Upon this state of facts, the court said: They were recognized and
acquiesced in by all the public as the board of supervisors of Wayne county; and to hold their
acts to be invalid would be most disastrous to the public interest, and that of individuals who
were justified in relying upon their acts as the acts of the board of supervisors of the county.
There are present here all the elements which, from considerations of public policy, and for
the avoiding of public inconvenience, have been recognized as going to make up the character
of de facto officers, whose acts should be held valid as officers by virtue of an election as
such, under an act of the legislature; reputation of being public officers, and public belief of
their being such; public recognition thereof, and public acquiescence therein; and action as
such unquestioned, during a series of years, with no other body ready and willing to act as the
board of supervisors. We are therefore of opinion that this act * * * in relation to the board of
supervisors of Wayne county, even if it be unconstitutional, was sufficient to give color of
title that the official board, elected and acting under the law, were officers de facto, and that
their acts should be held valid, so far as the public and third persons are concerned."
that their acts should be held valid, so far as the public and third persons are concerned.
In State ex rel. Derusha v. McMartin, 43 N. W. Rep. 572, there was an act of the
legislature establishing a justice's court in one of the wards of the city of St. Paul, and
providing for the election of such justice at the next general city election. There was a section
of the act authorizing the mayor of the city to appoint the first justice to hold the office until
the next election. Respondent, McMartin, was occupying the office, and performing its
duties, under appointment by the mayor, pursuant to the provisions of this act. A civil action
was commenced in the court, and the defendant therein applied for a writ of prohibition to
restrain McMartin from proceeding in the action, on the ground that he was not a justice of
the peace, and had no authority to act as such, for the reason that the provision of the act
assuming to confer the power on the mayor to fill the office by appointment is
unconstitutional. The court said: This part of the act is entirely separate and distinct from the
provisions creating the court or office; and hence, even assuming that the former is invalid,
the latter are valid. We have, then, a case where the court or office was legally created; and
the illegality if any, consists in an attempt to fill it by appointment for the period indicated in
a way not authorized by the constitution. On these facts, according to all the authorities, the
respondent is a justice de facto. That his title to the office cannot be tried on a writ of
prohibition, but only on information in the nature of quo warranto, is too well settled to
require discussion. Counsel in that case, as well as in the case under consideration, argued
that petitioner had no other available remedy for the wrong and injustice that was about to be
done him, and that, inasmuch as there must be a remedy for every wrong, therefore a writ of
prohibition ought to be issued. But, said the court: The fallacy consists in the assumption
that relator is threatened with any wrong. Respondent being a justice de facto, his acts are as
valid as if he was a justice de jure. In fact, as to everybody except the state, in proceedings by
quo warranto to test his right to the office, he is, in effect, a justice de jure.
In support of the views we have expressed we cite the following additional authorities,
(Rives v. Pettit, 4 Ark. 582; In re Ah Lee, 6 Sawy. 410; Campbell v. Commonwealth, 96 Pa.
St. 347; Brown v. Lunt, 37 Me. 429; Dugan v. Farrier, 47 N.J. Law, 3S5; Carli v.
Brown v. Lunt, 37 Me. 429; Dugan v. Farrier, 47 N.J. Law, 385; Carli v. Rhener, 27 Minn.
293; In re Parks, 3 Mont. 431; Fitchburg Railroad Co. v. Grand Junction Railroad and
Depot Co., 1 Allen. 557; Petersilea v. Stone, 119 Mass. 467; Clark v. Easton, 146 Mass. 45;
People, ex rel Norfleet v. Staton, 73 N. C. 546; Hamlin v. Kassafer, 15 Or. 458.)
The contention of petitioner's counsel that, when a law is unconstitutional under which a
person claims to exercise authority, that such authority may be attacked and disregarded in
any form of proceedings, is not sustained by reason or authority. The legal existence of the
district court of the state of Nevada, and of the office of district judge of said court, cannot be
questioned. Neither the court nor the office was created by the act which is claimed to be
unconstitutional. The question raised in this proceeding is not, therefore, one touching the
jurisdiction of the court; but it is an inquiry into the right of a particular person to hold the
office of district judge, which is a question absolutely distinct from that of the jurisdiction of
the court. The only question that is before us for consideration, is whether or not the reputed
or colorable authority required by law to constitute an officer de facto can be derived from an
unconstitutional statute.
From a review of the authorities bearing directly on the question, it clearly appears that it
is sufficient if the officer claims and holds the office under some power having color to
appoint, and that a statute, though it should be found repugnant to the constitution, will give
such color.
The question of the constitutionality of the act increasing the number of district judges to
four will not be considered. It is not properly before us for decision. It was not discussed by
counsel for respondent, and is simply assumed to be unconstitutional by petitioner's counsel.
This question, in so far as respondent's right to hold the office of district judge is concerned,
can only be raised in a direct proceeding, by quo warranto, to determine by what authority he
exercises the right.
The alternative writ of prohibition heretofore issued in this case is vacated, and the
temporary writ asked for denied.
Murphy, J., concurring:
I was not present, and did not hear the oral arguments made by the attorneys on the hearing
for the writ. But from an examination of the briefs filed, and all the authorities having any
bearing upon the subject, I am of the opinion that the application for the writ should be
denied.
amination of the briefs filed, and all the authorities having any bearing upon the subject, I am
of the opinion that the application for the writ should be denied.
I therefore concur in the opinion of Chief Justice Hawley.
Belknap, J., dissenting:
At the session of 1885 the legislature constituted the state one judicial district, and
provided that there should be three judges of the district court. Pursuant to this law, three
judges were elected at the general election of 1886 for the term of four years. Their terms will
not expire by limitation until the first Monday in January, 1891. At the session of 1889 the
legislature enacted that the number of district judges should be increased to four, and
authorized the governor of the state to forthwith appoint a fourth judge. Respondent was
commissioned under this authority in the month of March, 1889. This enactment, in so far as
it attempts to increase the number of district judges during the term of the judges elected in
1886, is in direct violation of the provisions of the constitution, which require that the number
shall not be increased or diminished except in case of a vacancy, or upon the expiration of
the term of an incumbent of the office. (Const. Art. 6, Sec. 5.) The enactment, being
unconstitutional and void in the respect stated, created no office or judgeship to be filled. It
was as inoperative as though it had never been passed. No de jure judge could be created by
virtue of its provisions; and, if there could be no de jure judge, there could be no de facto
judge, for the reason that the de facto doctrine pre-supposes provision by law for a de jure
officer. It is considered, however, by the majority of the court, that if the law of 1889 be
unconstitutional, the office of district judge created by the constitution and laws passed in
pursuance thereof remains; that respondent is an incumbent of this office, and therefore a de
facto officer. In my view the case does not admit of the application of the de facto doctrine.
At the time of respondent's appointment the office of district judge was, and continuously
since has been, filled by the three judges before mentioned. A de facto officer, as the term
implies, is one who is, in fact, the officer. It is evident that there is no room for such an
officer if the number of officers fixed by the law are in the actual possession of the office.
(McCahon v. Commissioners, S Kan.
Commissioners, 8 Kan. 437; Boardman v. Halliday, 10 Paige, 232; Morgan v. Quackenbush,
22 Barb. 80; Cohn v. Beal, 61 Miss. 399; State v. Blossom, 19 Nev. 312.)
The cases cited by the chief justice fall short, it seems to me, of establishing the conclusion
that respondent is a de facto officer. In State v. Carroll, Taylor v. Skrine and ex-parte Strang,
the legal incumbent was temporarily incapable of discharging the duties of the office, and had
surrendered it and its instrumentalities to the possession of the appointee. There was,
therefore, in each of these cases, a vancacy, [vacancy,] or that which was tantamount to one.
In State, ex rel Derusha v. McMartin, 43 N. W. Rep. 572, the office was vacant when the
appointment was made. In Leach v. People, 122 Ill. 420, the legislature had passed an
unconstitutional act, providing for the election of a board of supervisors for the management
of the affairs of Wayne county, consisting of five members only, instead of fifteen. The real
cause of complaint, said the court in its opinion, is that the office legally existing was
illegally filled. The question in all of these cases was whether an officer appointed or elected
under an unconstitutional act to a vacant office was a de facto officer. This question is not
involved in the present case, because there was no vacancy in the legal organization of the
court to be filled.
I think respondent should not be considered a judge de facto, and that the writ of
prohibition should issue.
____________
21 Nev. 65, 65 (1890) Dixon v. Ahern
[No. 1321.]
THOMAS DIXON, Appellant, v. JERRY AHERN, Respondent.
Relation of Landlord and TenantTrespasser.The adverse occupation of lands by a person without
recognizing the owner as his landlord, or without any agreement, express or implied, to hold under and in
subordination to him, is a mere trespass and is insufficient to establish the relation of landlord and tenant.
R. R. Bigelow, District Judge, presiding at trial.
21 Nev. 65, 66 (1890) Dixon v. Ahern
Thomas Wren, R. M. Beatty and Henry Rives, for Appellant.
I. The appellant proved his ownership and possession of the land at the time respondent's
wood was hauled upon it, and after such proof it was error for the court to grant a non-suit.
II. The proof shows that respondent, by his language and conduct, led appellant to believe,
and appellant had a right to believe, that respondent would be responsible for the use and
occupation of the premises.
Baker & Wines, for Respondent.
I. An action for use and occupation cannot be sustained in the absence of either an express
or implied contract creating the relation of landlord and tenant.
II. The rule is well settled, that if the court can see that a verdict for the plaintiff must be
set aside in a given case, then the proper practice is to grant a non-suit, if it is asked for by the
defendant. (Geary v. Simmons, 39 Cal. 224; Ensminger v. McIntire, 23 Cal. 593.)
III. At the time the statement on appeal was filed, served and settled, it could not, so far as
any examination of the evidence is concerned, be considered by this court. (Mandlebaum v.
Liebes, 17 Nev. 131; White Pine County v. Herrick, 19 Nev. 311.)
This case came before this court on appeal from the refusal of the judge of the district
court to give an instruction asked for by the appellant (respondent here) on that hearing, and
was remanded for a new trial. (19 Nev. 425.) The issues involved are the same. It is therefore
unnecessary to state the facts of the case for the purposes of this opinion.
This appeal is taken from a judgment of non-suit entered upon defendant's motion.
The only question for us to determine is, are the facts introduced by the plaintiff in this
case sufficient to establish the relationship of landlord and tenant. We think not. All the
elements requisite to create the relationship of landlord and tenant are lacking; that is, the
assent of the landlord on the one side, and the recognition of the landlord's title by the tenant.
The defendant in this case entered upon the premises without the knowledge or consent of
the plaintiff, and never did, by word or act, so far as the record shows, recognize the
plaintiff's title.
21 Nev. 65, 67 (1890) Dixon v. Ahern
knowledge or consent of the plaintiff, and never did, by word or act, so far as the record
shows, recognize the plaintiff's title. Defendant was a trespasser, and not a tenant; and the
mere fact that he said: If I owned the wood, I would pay the rent, does not create the
relationship of landlord and tenant. In order to have that effect, the defendant should have
recognized the plaintiff's title and agreed to hold under him and in subordination to it. (1
Wood, Landl. & Ten. Sec. 1; Tayl. Landl. & Ten. Sec. 21; Central Mills v. Hart, 124 Mass.
125; Leonard v. Kingman, 136 Mass. 124.) To create the relation of landlord and tenant, an
agreement, either express or implied, must exist. Neither appears from the facts in this case.
All the authorities establish the principle that where a person occupies the land of another, not
as a tenant but adversely, or where the circumstances under which he enters show that he does
not recognize the owner as his landlord, this form of action will not lie. (Pico v. Phelan, 77
Cal. 86.)
From the evidence introduced on the part of the plaintiff on the trial of this cause, he could
not recover; therefore the non-suit was properly granted. Judgment affirmed.
____________
21 Nev. 67, 67 (1890) State v. Board of Examiners
[No. 1334 1/2.]
THE STATE OF NEVADA ex rel. E. D. BOYLE, Relator,
v. THE STATE BOARD OF EXAMINERS, Respondent.
Electoral Qualifications.The qualifications of an elector are those prescribed by the constitution, and they
cannot be altered or impaired by the legislature. Registration is not an electoral qualification, but is only a
means for ascertaining and determining in a uniform mode whether the voter possesses the qualifications
required by the constitution, and to secure in an orderly and convenient manner the right of voting.
Constitutional AmendmentsConstitution Construed.The words voting thereon contained in Sec. 1 of Art.
XVI of the Nevada constitution, do not refer to the words members of the legislature in the same section
as their antecedent, and consequently do not limit the right to vote at a special election upon the question of
the ratification of proposed constitutional amendments to electors who were qualified to vote for members
of the legislature who voted upon the proposed amendments. All electors of the state are entitled to vote
upon the submission of a proposed constitutional amendment.
Adoption of Prior Registry List.The constitution has committed the subject of the registration of electors to
the legislature for the purpose of determining who are qualified voters, and laws of this description must be
calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to vote. The
adoption by the legislature of the registry lists of the general election of 1888 for the special election held
three months later in 1889 is not obnoxious to constitutional requirements, but on the contrary is
commendable as being calculated to facilitate, rather than to impede, the exercise of the right to vote.
Original application for the writ of mandate.
W. S. Wood, William Woodburn and T. Coffin, for Relator.
(Oral argument. No brief on file.)
The Attorney General, for Respondent.
(Oral argument. No brief on file.)
By the Court, Belknap, J.:
This is an application for a writ of mandamus requiring the board of examiners to order the
publication of certain proposed amendments to the constitution of the state, preliminary to
their submission to the people at the approaching general election. The proposed amendments
are fourteen in number, and are those which were submitted to a vote of the people at the
special election, held upon the 11th day of February, 1889, under the provisions of a law
providing for such election, approved January 19, 1889. (Stat. 1889, p. 14.)
The application is made upon the ground that the law authorizing the special election is
unconstitutional and void, and that the proposed amendments were not, therefore, legally
submitted to the voters of the state. The submission at the special election being invalid, it is
now the duty of the board, it is said, to order publication under a general law of the state
which provides that, whenever the conditions prescribed by the constitution for its
amendment have been complied with by the legislature, the board of examiners shall order
such proposed amendments to be published in a daily newspaper of general circulation for the
period of ninety days, preceding any general election.
tion. (Stat. 1887, p. 122.) It is contended that the statute under which the special election was
held is unconstitutional, in that it does not prescribe the qualifications imposed by the
constitution upon electors voting upon amendments to the constitution.
The constitution defines the course to be pursued by the legislature in the matter of
amendments, and requires that they shall be submitted to a vote of the people. And if the
people, the constitution proceeds to say, shall approve and ratify such amendment or
amendments by a majority of the electors qualified to vote for members of the legislature
voting thereon, such amendment or amendments shall become a part of the constitution.
(Article 16, Sec.1.)
The contention is that the voters registered under the act of January 19, 1889, were not
qualified to vote upon the proposed amendments, because they were not, at the day of the
special election, registered, so as to have entitled them to have voted for a member of the
legislature, if one were then to have been chosen. The error of the position lies in the
assumption that registration is an electoral qualification. The qualifications of an elector are
prescribed by the constitution (Sec. 1 Art. II) and cannot be altered or impaired by the
legislature. (State ex rel. Whitney v. Findley, 20 Nev. 198.) The registration laws of the state
do not attempt to add to these qualifications. These laws simply provide means for
ascertaining and determining, in a uniform mode, whether the voter possesses the necessary
qualifications, and are also intended to secure, in an orderly and convenient manner, the right
of voting. Upon this subject Chief Justice Dillon, speaking for the supreme court of Iowa, in
Edmonds v. Banbury, said: But the legislature, while it must leave the constitutional
qualifications intact, and cannot add new ones, may, nevertheless prescribe regulations to
determine whether a given person who proposes to vote possesses the required
qualifications. (28 Iowa, 272.) No registry law can be sustained, said the supreme court of
Wisconsin, which prescribes qualifications of an elector additional to those named in the
constitution, and a registry law can be sustained only, if at all, as providing a reasonable mode
or method by which the constitutional qualifications of an elector may be ascertained and
determined, or as regulating reasonably the exercise of the constitutional right to vote at an
election. (Dells v. Kennedy, 49 Wis.
49 Wis. 558.) It is now generally admitted that these laws do not add to the constitutional
qualifications of voters. (McCreary, Elect. Sec. 7.)
Another objection made to the law involves a different construction of the same
constitutional clause. It is claimed that the words voting thereon, contained in the quoted
clause, refer to the words members of the legislature, as their antecedent, and this view
leads to the result that only those were competent to vote at the special election who were
qualified to vote for the members of the legislature who voted upon the proposed
amendments. The construction contended for would lead to results which could not have been
contemplated. For instance, the right of an elector to vote would depend not alone upon his
qualification to vote for members of the legislature of the session at which the proposed
amendment was considered, but, also, upon the fact whether such member or members did
actually vote upon the proposed amendment. For if, from any cause, the member did not vote,
it would seem that the elector would be disqualified. Other results quite as surprising and
unreasonable, but not necessary to suggest or discuss, would proceed from the adoption of the
construction. Without pursuing the matter further, we consider that all of the electors of the
state are entitled to vote upon the submission of a proposed amendment. We are led to this
conclusion by a consideration of the provision under discussion in connection with the other
provisions of the constitution bearing upon the same subject, and the theory of our political
system.
The power of the great body of the people as an organized body politic to amend or revise
the constitution of their state is a fundamental principle of the governments of the states of
the Union. The power is expressly declared in the constitution of this state in these words:
All political power is inherent in the people. Government is instituted for the protection,
security and benefit of the people, and they have the right to alter or reform the same
whenever the public good may require it. (Article 1, Sec. 2.) And, in defining the
qualifications of electors, the constitution further declares that every elector shall be entitled
to vote for all officers that now are or may be elected by the people, and upon all questions
submitted to the electors at such election. (Section 1, Art. 2.) The clause under consideration
must be construed with reference to these provisions.
provisions. The conclusion reached is in harmony with them, and is supported by the
language of the clause itself.
Objection is also made to the provisions of the law adopting the registry lists of the general
election of 1888. The constitution has committed the subject of the registration of electors to
the legislature. The object of these laws, as before stated, is to determine the qualifications of
the voters. Laws of this description must be reasonable, uniform and impartial, and must be
calculated to facilitate and secure, rather than to subvert or impede, the exercise of the right to
vote. (Monroe v. Collins, 17 Ohio Stat. 685.) The provisions of the statute meet these
requirements. The special election was to be held about three months after the general
election of 1888, and electors registered for the general election, and continuing qualified
voters, were not required to make further registration. The adoption of the registry lists of the
then recent election, and dispensing with the burdensome requirement of a second
registration, commend themselves as reasonable regulations, calculated to facilitate, rather
than impede, the exercise of the right to vote.
Relator having failed to establish the invalidity of the special election law, or the
proceedings thereunder, it is ordered that the writ of mandamus be denied.
____________
21 Nev. 72, 72 (1890)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
OCTOBER TERM, 1890.
____________
Volume 21
____________
21 Nev. 72, 72 (1890) Lindsay v. Jones
[No. 1329.]
R. H. LINDSAY, Respondent, v. J. E. JONES, Appellant.
Construction of DeedEasementEstoppel.Where the owner of an alley and adjoining lots conveys part of
them, describing them as fronting on a certain street, and with a depth of eighty-five feet to an alley fifteen
feet in width, the deed carries title to the middle of the alley, with an easement of way over the other half,
the grantor having a like easement over the other half conveyed, and such grantor and his heirs are
estopped from asserting any claim or doing any acts inconsistent with the grantee's use of such easement.
Appeal from the District Court of the State of Nevada, Washoe county.
R. R. Bigelow, District Judge.
Clarke & Jones, for Appellant.
I. The deed, the construction of which is involved, does not, in terms, grant an easement
in the alley. It grants "eighty-five feet to the alley," not ninety-two and one-half feet to the
center of the alley, which necessarily excludes the inference that the alley, or any part of
it, was intended to be conveyed. {Railroad Co., v. Heisel, 3S Mich. 62, 72; Smith v.
Slocomb, 9 Gray; 36; Sibley v. Holden, 10 Pick, 249; Phillips v. Bowers, 7 Gray, 21; Hughes
v. R. R. Co., 2 R. I. 50S; Hoboken Land Co. v. Kerrigan, 31 N. J. 13; Anderson v. James, 4
Rob. Sr. Ct. {N. Y.)
eighty-five feet to the alley, not ninety-two and one-half feet to the center of the alley,
which necessarily excludes the inference that the alley, or any part of it, was intended to be
conveyed. (Railroad Co., v. Heisel, 38 Mich. 62, 72; Smith v. Slocomb, 9 Gray; 36; Sibley v.
Holden, 10 Pick, 249; Phillips v. Bowers, 7 Gray, 21; Hughes v. R. R. Co., 2 R. I. 508;
Hoboken Land Co. v. Kerrigan, 31 N. J. 13; Anderson v. James, 4 Rob. Sr. Ct. (N. Y.) 35;
Halsey v. McCormack, 13 N. Y. 296; Howard v. Ungersoll, 13 How. 381; Lough v. Machlin,
40 Ohio St. 332; Peabody Heights Co. v. Satler, 53 Md. 533; Tyler v. Hammond, 11 Pick.
193; Secconi v. Rodden, 147 Mass. 164; People v. Board of Supervisors, 125, 111, 9, 23, 24,
25.) The alley is a mere private way, in no sense public or belonging to the public. (Lough v.
Machlin, 40 Ohio St. 332.) The intentions of the parties as expressed in the deed must govern.
Mere presumptions must yield to this expressed intention. (Devlin on Deeds, Sec. 1025; 13
Pick. 261.)
R. H. Lindsay, in pro. per. for Respondent.
I. This is an appeal from the judgment. There is no statement on appeal or bill of
exceptions in the record. Besides the right acquired by grant, the complaint demands relief by
reason of a prescriptive right of easement, which cause of action appellant entirely ignores.
There being no findings before this court, it will imply them and presume that the court below
found for plaintiff on the question of prescription raised by the pleadings and such findings
would sustain the decree.
II. The rule announced in the lower court: If the alley existed then the plaintiff has a right
to have it remain; if it did not exist, he must have intended to give the purchaser to
understand that there should be one of that size. Such an alley added, doubtless, to the value
of the property, and was probably one of the inducements for the grantee to purchase. The
fact that the land conveyed is described as being eighty-five feet in width does not change the
rule, is sustained by innumerable authorities. (Stone v. Brooks, 35 Cal. 498-501; Kittle v.
Pfeiffer, 22 Cal. 489; O'Linda v. Lothrop, 21 Pick. 292; Cin. v. White's Lessees, 6 Pet. 431;
Irwin v. Dixon, 9 How. U.S. 31; U.S. v. Chicago, 7 How. U.S. 186; Rowan v. Town of
Portland, 8 B. Monr. 235; City of Logansport v. Dunn, 8 Ind.
378; Breed v. Cummingham, 2 Cal. 368; Harding v. Jasper, 14 Cal. 642.) By a well known
rule of construction measurements will yield to monuments, etc. (Newhall v. Irison, 8 Cush.
589; Colton v. Seavey, 22 Cal. 503, and authorities cited.)
By the Court, Belknap, C. J.:
This is an action to abate the obstruction of plaintiff's easement in an alley. Defendant was
the owner of the land upon which the alley is located, and of the adjoining land, and made a
deed of conveyance to plaintiff's grantor, describing the premises as follows: The east 85
feet of lots 4, 5 and 6 in block two in Lake's south addition to said town of Reno, county of
Washoe, state of Nevada, as known and designated in the map of said Lake's south addition
made from a survey by A. J. Hatch in 1872, each of the lots hereby conveyed fronting fifty
feet on the west line of Center street, with a depth of 85 feet to an alley fifteen feet in width.
The only question in the case is as to the construction of this language. The case of Lewis
v. Beattie, 105 Mass. 410, will serve to show the construction applied by the courts to similar
language in conveyances. There the deed described the land conveyed as running to and
bounding on a way forty feet wide. The grantors were the owners of the fee covered by the
way. The court said: Standing by itself, this deed would carry the title to the middle of the
strip described as a way, with an easement of way over the other half, and subject to a like
easement reserved to the grantors over the half conveyed, as well as to whatever rights of way
existed in others at the time.
Another principle equally well established and conclusive arises out of the doctrine of
estoppel. It is thus stated in Howe v. Alger: A grantor of land describing the same by a
boundary on a street or way, if he be the owner of such adjacent land, is estopped from setting
up any claim or doing any acts inconsistent with the grantee's use of the street or way; and
such estoppel will apply to his heirs, or those claiming under him. (4 Allen, 211.)
Judgment affirmed.
Bigelow, J., did not participate in the foregoing decision, having presided at the trial of the
case below.
____________
21 Nev. 75, 75 (1890) State v. Central Pacific R.R. Co.
[No. 1332.]
THE STATE OF NEVADA, Respondent, v. CENTRAL
PACIFIC R. R. CO., Appellant.
School TaxesSchool District OrganizationEstoppel.Where a school district has been in existence since
1871 and has continued during that time to receive public funds for its support and has had three special
taxes levied and collected for its benefit without its legal organization ever having been questioned, a
taxpayer on whose property such a tax is levied is precluded from attacking the legality of the organization
of the district
Assessment Of Railroads.Under the statute assessors are required to estimate the value of railroads with
reference to their position, connections and use, and 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.
Appeal from the District Court of the state of Nevada, Lander county.
Baker & Wines, for Appellant.
I. No sufficient or valid order of the board of county commissioners creating Argenta
school district was ever made. A board of county commissioners is a tribunal of special and
limited jurisdiction, and every jurisdictional fact necessary to the legal action of the board
must be affirmatively shown, nor can the facts showing jurisdiction be supplied by parol.
(Mallet v. U.S.M. Co., 1 Nev. 188, 198, 199; McDonald v. Prescott, 2 Nev. 109; State v.
Board, 5 Nev. 317, 319; State v. County Commissioners, 6 Nev. 95; State v. C. P. R. R., 9
Nev. 79, 89; Finch v. County, 29 Cal. 454; Appeal of Royston, 53 Wis. 612; People v.
Spencer, 55 N. Y. 1.) The complaint does not state the necessary jurisdictional facts which
must precede the levy and collection of a special school tax. (People v. Castro, 39 Cal. 65.)
The evidence did not even approach a showing of the extent or boundaries of Argenta school
district nor whether any of the property sought to be taxed was situate within, or without such
pretended district. Courts will not take judicial notice of the boundaries or extent of a
municipal corporation, unless it be one created by a public act of the legislature.
unless it be one created by a public act of the legislature. As school districts are created by the
board of county commissioners, and not by the legislature, their extent, and what property is
embraced in them, must always be shown, as any other fact, upon the trial. (Porter v. Waring,
69 N. Y. 250; Bragg v. Rush Co., 34 Ind. 406; 1 Greenleaf Ev. Sec. 6, sixth edition.)
II. The assessor determined the value of appellant's property by taking into account and
considering false quantities and estimates not recognized by law. Such assessment is a legal
fraud upon the taxpayer and the courts are justified in giving relief. (State v. C. P. R. R. Co., 7
Nev. 99; State v. C. P. R. R. Co., 10 Nev. 47; Spring Valley Water Case, 25 Pac. Rep. 420;
Chicago R. R. Co. v. Minnesota, 134 U.S. 418.) An intention upon the part of the assessor to
commit a wrong, or to injure the taxpayer, is not necessary. He may commit a fraud and yet
act in good faith. If, in determining values, he considers elements which do not properly enter
into, or make up, such values, it is a fraud which the courts will not permit to go unredressed.
(Durdee Mortgage Trust Co. v. Parrish, 24 Fed. Rep. 197, 202; Cummings v. National Bank,
101 U.S. 153.)
J. F. Alexander, Attorney General, W. D. Jones, District Attorney of Lander county, and
Henry Mayenbaum, for Respondent.
I. The motion for a new trial was too late. Defendant waived written notice and is stopped
from claiming that it had no written notice of the decision. (Corbett v. Swift, 6 Nev. 195;
Keane v. Murphy, 19 Nev. 96; Barron v. Deleval, 58 Cal. 98; Georgia Lumber Company v.
Strong, 3 How. Pr. 246.)
II. There is no evidence whatever showing any pretense of fraud. Fraud being a question
of fact the finding of the court is conclusive. Our statute providing for ascertaining, assessing
and fixing the value of any railroad for taxation is the rule everywhere. Any other rule is
absurd and would almost entirely exempt from taxation the enormous and constantly
increasing property in railroads. (Ohio & Mo. R. R. v. Weber, 96, 111, 443; State v. C. P. R.
R., 10 Nev. 71; Welty's Taxation, Sec. 142; State R. R. Tax Cases, 92 U.S. 580, 608, 611;
Western Union Tel. v. Massachusetts, 125 U.S. 530; Buffalo & State Line R. R. v. Board, 48
N. Y. 93; Tomlinson v. Board, Tenn.
Oct. 1889, 12 S. W. 414.) There being no fraud the assessment and equalization are
conclusive. (People v. Whyler, 41 Cal. 351; San Francisco v. Flood, 64 Cal. 504; People v.
State Board of Equalization, 102 N. Y. 630; Cooley's Taxation, 528-9 and note authorities
cited; Stanley v. Albany, 121 U.S. 535, 549, 551; Atlantic & P. R. R. Co. v. Yavapai Co., 21
Pac. Rep. 769; In re McLean, Receiver of Taxes, 6 N. Y. Sup. 230; Red River & C. Line v.
Parker, La. 6 Southern Rep. 896; Upshur County v. Rich, 10 U.S. S. C. Rep. 651.) The
findings are conclusive. There was no exception taken to them and defendant did not request
further findings. (McCluskey v. Gerhauser, 2 Nev. 47; State v. Manhattan, 4 Nev. 336;
Warren v. Quill, 9 Nev. 259; Young v. Clute, 12 Nev. 36.) The findings are not disturbed
when the evidence is conflicting and there is substantial evidence to support them. (State v.
C. P. R. R., 10 Nev. 87; State v. Yellow Jacket, 5 Nev. 415; Blackie v. Cooney, 8 Nev. 41;
McCoy v. Bateman, 8 Nev. 126; Bunting v. C. P. R. R., 16 Nev. 280.)
III. The order of the board of county commissioners in 1871, creating Argenta school
district is conclusive. The recital shows that a petition was filed praying for the creation of the
district. (Wharton's evidence, S. 639; Dillon's Municipal Corporations, p. 311, 3 Ed.; State v.
Board of Commissioners, 8 Nev. 309; Hetzel v. Board of Commissioners, 8 Nev. 359; Fall v.
Commissioners, 6 Nev. 103; Hagenmeyer v. Bd. of Equal., 23 Pac, Rep. 14; Humboldt Co. v.
Dinsmore, 75 Cal. 604.) The school district was recognized by the state. The school trustees
constitute a public corporation and their acts, whether de jure or de facto cannot be
collaterally questioned; nor can the existence of the district be collaterally attacked. (Walcott
v. Wells, 24 Pac. Rep. 367; People v. Hagar, 52 Cal. 172; Macon Co. v. Shores, 97 U.S. 277;
Borrough's Taxation, 399, 400; Dillon's Municipal Corporations, Vol. 1, 3 Ed. 43, 60, 311,
240; Lawson's Presumptive Evidence, 47, 49; Meagher v. Storey Co., 5 Nev. 245; 1 Taylor's
Evidence, 187; Mendenhall v. Burton, 22 Pac. Rep. 558; Abbott's Trial Evidence, 193.) The
statute of limitations has long since precluded any question of the existence of the school
district. It was organized in 1871, has been in operation ever since with the acquiescence of
the state, the county, the people and the defendant. It has for nineteen years received its
distributive share of the public funds and has had three special taxes, of which defendant paid
its proportion without objection.
without objection. (Ramsey v. People, 19 N. Y. 42; Sherry v. Gilmore, 17, N. W. Rep. 252,
255; Hunt v. Johnson, 19 N. Y. 279; Stewart v. Kalamazoo, 30 Mich. 69.)
In an action for the recovery of delinquent taxes, judgment was rendered against defendant
for the sum of twenty-four thousand two hundred and nine dollars and seventy-three cents for
taxes and penalties, together with the district attorney's fees, and costs of suit. Included in the
judgment is the sum of one thousand one hundred and six dollars and ninety-eight cents, with
penalties, the amount of a special school tax levied upon the property of the defendant in the
Argenta school district.
One of the objections is that this school district was not organized in conformity with the
provisions of the statutes of the state relating to the formation of school districts, and that the
levy of the school tax was, therefore, illegal. It was shown that the district had been in
existence since the year 1871; that, from that time down to the time of trial, it had received
from the school fund of the county, for its support, moneys aggregating the sum of
twenty-four thousand three hundred and seventy two dollars and ninety cents; that three
special taxes had been levied and collected for its benefit, and, apparently, no question of the
legality of its organization had ever been made. Upon these facts, defendant is precluded from
attacking the legality of the organization of the district. In support of this conclusion we rely
upon the principles announced in the case of Stuart v. School District, 30 Mich. 69. In that
case, complainants resisted the enforcement of a school district tax for the reason now urged
by defendant. The district had exercised the powers and privileges of a school district for
thirteen years, with the acquiescence of the public. The court said: Whether this particular
objection would have been worthy of serious consideration had it been made sooner, we
must, after this lapse of time, wholly decline to consider. This district existed de facto, and
we suppose de jure, also, for we are not informed to the contrary, when the legislation of
1859 was had, and from that time to the present it has assumed to possess and exercise all the
franchises which are now brought in question, and there has since been a steady
concurrence of action on the part of its people in the election of officers, in the levy of
large taxes, and in the employment of teachers for the support of a high school.
in question, and there has since been a steady concurrence of action on the part of its people
in the election of officers, in the levy of large taxes, and in the employment of teachers for the
support of a high school. The state had acquiesced in this assumption of authority, and it has
never, so far as we are advised, been questioned by any one until, after thirteen years use,
three individual taxpayers, out of some thousands, in a suit instituted on their own behalf, and
to which the public authorities give no countenance, come forward in this collateral manner
and ask us to annul the franchises. To require a municipal corporation, after so long an
acquiescence, to defend, in a merely private suit, the irregularity, not only of its own action,
but even of the legislation that permitted such action to be had, could not be justified by the
principles of law, much less by those of public policy. We may justly take cognizance in these
cases of the notorious fact that municipal action is often exceedingly informal and irregular,
when, after all, no wrong or illegality has been intended, and the real purpose of the law has
been had in view and been accomplished; so that it may be said the spirit of the law has been
kept, while the letter has been disregarded. We may also find in the statutes many instances of
careless legislation, under which municipalities have acted for many years, until important
interests have sprung up, which might be crippled or destroyed, if then for the first time,
matters of form in legislative action were suffered to be questioned. If every municipality
must be subject to be called into court at any time to defend its original organization and its
franchises at the will of any dissatisfied citizen who may feel disposed to question them, and
subject to dissolution, or to be crippled in authority and powers if defects appear, however
complete and formal may have been the recognition of its rights and privileges, on the part
alike of the state and its citizens, it may very justly be said that few of our municipalities can
be entirely certain of the ground they stand upon, and that any single person, however
honestly inclined, if disposed to be litigious, or over technical and precise, may have it in his
power in many cases to cause infinite trouble, embarrassment and mischief. (Pages 72, 73.)
The other objection arises out of an alleged overvaluation, and, therefore, fraudulent
valuation, of defendant's railroad in Lander county.
The line of railroad was assessed at fourteen thousand dollars per mile. The board of
equalization reduced the assessment to twelve thousand dollars. Defendant introduced
evidence tending to show that a similar line of road could be constructed in Lander county at
a cost not exceeding nine thousand dollars per mile. It is contended that the assessment
should not exceed this figure, and that the valuation should be reached by considering the
road as an isolated piece of property situated in Lander county, without reference to its
connections at either end. The statute, however, requires assessors to estimate the value of
railroads with reference to their position, connections and use, and 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. (Stat. 1875, p. 106.)
Tested by this rule, there is no evidence tending to show an overvaluation of the railroad.
The judgment and order of the district court are affirmed.
____________
21 Nev. 80, 80 (1890) West v. Humphrey
[No. 1326.]
W. E. WEST, Appellant, v. W. C. HUMPHREY et als.
Respondents.
SaleDeliveryPassing of Title.An agent bought for his principals all of the ores produced at a mine to be
delivered when loaded on the wagon at the mine. Ores were loaded and delivered to a carrier, consigned to
the agent, and a bill of lading in the agent's name was sent to him. Held, that the title passed to the
principals when the ores were delivered to the carrier.
CarrierFor Whom Bailee.Under such a state of facts as exist in this case the carrier is the bailee of the
consignee and not of the consignor.
ReplevinPractice.When the plaintiff in an action of replevin has introduced evidence showing that he had
purchased the property and became vested with the legal title thereto, the defendants cannot raise the
question of fraud in the sale, or of want of delivery, until they have shown some right or interest in the
property, or some lien upon it that entitles them to attack the sale. (Concurring opinion of Bigelow, J.)
Appeal from the District Court of the State of Nevada, Nye county.
Thomas H. Wells, District Judge.
David S. Truman, for Appellant.
I. The non-suit was improperly granted. Appellant had proved both his ownership of the
ores and his right to their immediate possession. (Minturn v. Burr, 16 Cal. 107; Frost v. Mott,
34 N. Y. 253.)
II. It can make no difference whether the bill of sale was made to West or to his
principals, as West testified that all of his acts were done as an agent for the party claiming to
be his principal. (McBeth and Bollen v. Vansickle, 6 Nev. 134; Western Devel. Co. v. Emery,
61 Cal. 611; Chin Kem You v. Ah Joan, 75 Cal. 124; Bayley v. Onondaga Mut. Ins. Co. 6
Hill, 476; Gilpin v. Howell, 45 Am. Dec. 720; Foster v. Smith, 88 Am. Dec. 604; Tainter v.
Lombard, 53 Me. 369; Ilsey v. Merriam, 44 Am. Dec. 721; Pitts v. Mower, 18 Me. 361;
Plano Mfg. Co. v. Burrows, 40 Kan. 361; Wilson v. Me-Ne-Chas, 20 Pac. Rep. 468.)
III. The delivery was sufficient and West's principals have the right to claim that the
delivery was for their benefit. (Wells, Fargo & Co. v. Robinson, 13 Cal. 134; George v.
Ransom, 14 Cal. 660; Simson v. Eckstein, 22 Cal. 593.)
IV. No right of property or lien existed in severance and the defendants were trespassers
in all of their acts. (Lawrence v. Burnham, 4 Nev. 366; Gray v. Sullivan, 10 Nev. 416;
Gaudette v. Travis, 11 Nev. 149; Wetzell v. Powers et al. 5 Mont. 214; Walsh v. Blakley, 6
Mont 194; Bailey v. Johnson, 9 Colo. 365; Allen v. Agee, 15 Or. 551; Bank v. McAndrews, 7
Mont. 150; Magruder v. Gage, 33 Md. 344; First Nat. Bank v. Dearborn, 115 Mass. 219;
Holbrook v. Wright, 24 Wend. 169; Nelson v. Chicago R.R. Co., 2 Ill. App. 180; Valle v.
Cerre's Administrators, 36 Mo. 575.)
J. T. Lamb and Benj. Curler, for Respondents.
(No brief on file.)
This action was brought to recover certain personal property, consisting of concentrates,
or their value.
consisting of concentrates, or their value. The defendants had judgment of non-suit.
It appears from the record that W. J. Chamberlain and Frank Dillingham, of Denver, Colo.,
were partners doing business in buying and smelting ores and concentrates in this state, under
the firm name of W. J. Chamberlain & Co.; that W. E. West was their agent in this state, and
that as such agent, in the month of September, 1889, he entered into an agreement with J. E.
Severance to purchase all the ores and concentrates for Chamberlain & Co. that Severance
could produce from the Barcelona mine, which mine Severance was working under a lease.
The ores and concentrates were to be delivered to Chamberlain & Co. when loaded on the
wagon at the Barcelona mine. Some ores and concentrates had been delivered under the
agreement to West. On or about the 20th day of November, 1889, Robert Scott, a teamster
and freighter, loaded seven or eight tons, more of less, of concentrates from the Barcelona
mine, at the request of Severance, to be by Scott delivered to West at Ledlie, West to pay the
freight charges. On the 23d day of November, 1889, West paid Severance $1,200 on the
concentrates. One the 25th of November, 1889, and after the said concentrates had been
loaded and in transit on Scott's wagons to West, and while Scott was at the town of Belmont,
seven miles from where the concentrates had been loaded, the defendant Brougher, as sheriff
of the county of Nye, under and by virtue of a writ of attachment sued out in the case of W. C.
Humphrey against J. E. Severance, seized the property in dispute as the property of J. E.
Severance. The following exhibits were put in evidence by plaintiff:
A. Belmont, Nevada, November 20, 1889. This certifies that I have this day sold to W.
E. West, manager of the Ledlie sampling works (11) eleven tons of concentrates and ore
(more or less), now being loaded on Scott's team; consideration ($1,200) twelve hundred
dollars. J. E. Severance.
Friend West: I think the above is all that is necessary, and all that you require as a bill of
sale. I shall leave for Austin on next stage, so you may hold money until my arrival. Yours,
truly, J. E. Severance.
B. Austin, Nevada, November 23, 1889. Received of W. E. West, manager, account
concentrates in transit, the sum of one thousand two hundred and seventy-five dollars for
eleven tons, more or less. J. E.
one thousand two hundred and seventy-five dollars for eleven tons, more or less. J. E.
Severance.
Exhibit C is a bill of sale and assignment from Chamberlain & Co. to West, the plaintiff.
We will not in this opinion consider the errors assigned by the counsel for plaintiff to the
refusal of the judge to sustain his objections to questions asked the several witnesses. We
shall confine ourselves, therefore, to the other error alleged, to-wit, the question of non-suit,
for the reason, as assigned by the judge, that the testimony of the plaintiff did not show that
Chamberlain & Co. were the owners of the property in controversy at the time of the levying
of the attachment. The bill of exceptions shows that the motion for non-suit, which the judge
sustained, was founded upon the theory that the sale of the property under the contract made
in the month of September, 1889, between West, acting as the agent for Chamberlain & Co.,
and Severance, was not a bona fide sale of the property, and the bill of sale in evidence,
marked Exhibit A,' shows that the property in dispute was sold by J. E. Severance to W. E.
West, November 20, 1889, and that the property was in transit at the time of the sale, and that
a portion of the concentrates were not in existence at the time of the pretended sale. We
think the non-suit should not have been granted.
The testimony of the plaintiff shows that there was an agreement between Severance and
the agent of Chamberlain & Co. in the month of September, 1889, whereby all the ore and
concentrates produced from the Barcelona mine was sold to Chamberlain & Co., and was to
be delivered to them when loaded on the teams at the Barcelona mines. There had been one or
more loads delivered under that agreement, and West testified that all his acts during the
entire transaction were for and on behalf of his principals, Chamberlain & Co., and not for
himself. Upon this state of facts, and no testimony in the record to contradict them, the mere
fact that Severance wrote upon a piece of paper what purported to be a bill of sale to West
could not change the original agreement without the consent of West or Chamberlain & Co.
The right to rescind was neither exercised nor claimed by either of the parties to the
agreement, nor is West's right to act as agent for Chamberlain & Co. questioned; and when he
received the paper purporting to be a bill of sale, made in his name, in law it was for the use
and benefit of Chamberlain & Co.
of sale, made in his name, in law it was for the use and benefit of Chamberlain & Co. A
person who agrees to act for another is not allowed to deal in the business of the agency for
his own benefit; and, if he takes a conveyance in his own name of property which he agrees to
purchase for another, he will be considered as holding the property in trust for his principal.
The fact that the property was in transit at the date of the paper purporting to be a bill of sale,
or that a portion of the property was not in existence at the date of the sale, is of no avail to
the respondents.
It appears from the evidence adduced at the hearing that the property was in the possession
of the carrier seven miles from the Barcelona mine, and that it had been paid for by West
before the levying of the attachment. Such being the case, Severance did not own the property
at the date of the levy, without it could be made to appear that he had parted with the property
to hinder, delay or defraud his creditors, which question is not before us. The ownership of
the property was to pass when loaded on the wagons at the Barcelona mine. The vesting of
the title to property always depends on the intention of the parties, to be derived from the
agreement and its circumstances. As long as the ore remained at the Barcelona mine,
Chamberlain & Co. had no interest in it; but when the ore was put into sacks, placed in the
wagon, delivered to the carrier, and he directed to deliver the property to West, what was up
to that time a mere executory contract of sale became an actual or executed sale, and the title
to whatever ore was placed in the wagon passed to Chamberlain & Co.
Where the buyer had purchased, in advance, all the crop of peppermint oil to be raised
and manufactured by a farmer, the property passed to the buyer in all the oil which had been
put by the farmer into the buyer's bottles and weighed, although never delivered to him.
(Langton v. Higgins, 4 Hurl. & N. 409.)
In the case of Aldridge v. Johnson, reported in 7 El. & Bl. 885, plaintiff agreed with K. to
purchase from K. 100 out of 200 quarters of barley, which plaintiff had seen in bulk and
approved of, and he paid part of the price. It was agreed that plaintiff should send sacks for
the barley, and that K. should fill the sacks with the barley, take them to a railway, place them
upon trucks free of charge, and send them to plaintiff. Plaintiff sent sacks enough for a part
only of the 100 quarters; these K. filled; and also endeavored to find trucks for them, but
was unable to do so. K. finally detained the barley, and emptied it from the sacks back
into the bulk. K. having become bankrupt after he had emptied the barley from the sacks
into the bulk, and the defendant, his assignee, having removed the whole together: Held,
by the whole court, that this was a conversion, by the assignee, as to the part put into the
sacks, and the plaintiff should recover that quantity."
tiff sent sacks enough for a part only of the 100 quarters; these K. filled; and also endeavored
to find trucks for them, but was unable to do so. K. finally detained the barley, and emptied it
from the sacks back into the bulk. K. having become bankrupt after he had emptied the barley
from the sacks into the bulk, and the defendant, his assignee, having removed the whole
together: Held, by the whole court, that this was a conversion, by the assignee, as to the part
put into the sacks, and the plaintiff should recover that quantity.
In cases like the one under consideration, the carrier is the bailee of the person to whom,
not by whom, the goods are sent; the latter, in employing the carrier, being considered as the
agent of the former for that purpose. (Benj. Sales, Secs. 181, 693; Burton et al. v. Baird, 44
Ark. 556; State v. Carl et al., 43 Ark. 353; Herron v. State, 10 S. W. Rep. 26; Kline v. Baker,
99 Mass. 254; Schmidt v. Nunan, 63, Cal. 373.)
The judgment will be reversed and cause remanded.
Bigelow, J., concurring.
I concur. The plaintiff's evidence shows that the sale of the concentrates was made to
Chamberlain & Co., and not to West. West was acting merely as their agent, and even if the
contract of sale had been made in his name, which it was not, it is always permissible to show
that it was for the use and benefit of his principals. This was shown here. (Ruiz v. Norton, 4
Cal. 355; Huntington v. Knox, 7 Cush. 371.)
As West is the plaintiff, and the one to whom the defendants claim the concentrates were
sold, it would make no difference whether sold directly to him, or first to Chamberlain & Co.,
and then by them to him, were it not that the complaint has specially alleged the deraignment
of title through them.
The plaintiff's evidence tended to prove that J. E. Severance had been the owner of the
concentrates; that before they were extracted from the mine he had made an agreement to sell
them to Chamberlain & Co.; that after they were extracted, he made a bill of sale to them, and
they had fully paid him for them. This was certainly sufficient to vest the title in them, and
authorize them to maintain an action for their possession as against a trespasser or stranger,
without regard to whether there was any fraud in the sale or had been any deliverywant of
delivery being also one on the grounds upon which the motion for non-suit was made, and
granted.
of delivery being also one on the grounds upon which the motion for non-suit was made, and
granted. These questions are only material when the contest is between a purchaser and a
creditor of the vendor having a lien by attachment or otherwise. (Thornburgh v. Hand, 7 Cal.
554; Bump, Fraud. Conv. 443, 511.) As the defendants had not yet come to their side of the
case, there was, of course, no proof that either of them was a creditor of the vendor, or that
any attachment had been issued, or any attempt made to levy the writ upon the property in
dispute. When the motion was made, it only appeared that the title to the property had vested
in the plaintiff; that he was consequently entitled to its possession; and that the defendants
detained it from him. This, certainly made a prima facie case. As the case then stood, the
defendants were merely strangers and trespassers. Until they had shown some right or interest
in the property, it was no concern of theirs whether there was fraud in the sale, or had been
any delivery, nor could the question be raised. (Packard v. Wood, 4 Gray, 307; Benj. Sales,
Sec. 675.)
____________
21 Nev. 86, 86 (1890) State v. Diamond Valley Live Stock & Land Co.
[No. 1327.]
THE STATE OF NEVADA, Respondent, v. THE DIAMOND VALLEY LIVE STOCK AND
LAND COMPANY et als., Appellants.
Assessment For TaxesName of Owner.A slight error in the name of the taxpayer made by the assessor,
when the property is correctly described and the owner is not misled by the name, will not avoid the
owner's liability for the taxes provided he can be identified by competent testimony.
IdemDuty of TaxpayerIt is the duty of a taxpayer to call the attention of the assessor to any error or mistake
appearing upon the face of the statement, which he observes, and if he fails to do so, he will not be
permitted to take advantage of his own wrong.
IdemExcessive ValuationIf a taxpayer, or his agent, fails or refuses to swear to the statement made by the
assessor of his taxable property, or to give to the assessor his list of taxable property under oath, the board
of equalization is prohibited by law from reducing the assessor's valuation and the taxpayer cannot question
such valuation in a court of law.
Interest on JudgmentsStatute ConstruedSection 4903 of the general statutes means that interest shall be
allowed at the legal rate on all moneys after they become due on any judgment recovered before any court
in this state.
Rives & Beatty and J. R. Judge, for Appellants.
I. There was no valid assessment of the taxes here sued for by the assessor of Eureka
county, for the year 1888. The Diamond Valley Live Stock and Land Company, or its
property can not be bound by the assessment in the name of the Diamond Valley Stock
Company. An assessment must be made in order to create a liability on the part of the
individual to pay the tax, and no person is a taxpayer until he has been so declared by the
proper officer. The assessment must be as certain in designating the person chargeable with
the tax at the commencement of the fiscal year, as it must be in designating the amount of the
charge, and the property to which reference is made for the purpose of ascertaining such
amount. (Kelsey v. Abbott, 13 Cal. 609; Moss v. Shear, 25 Cal. 38; People v. Sneath and
Arnold, 28 Cal. 615; Sharp v. Speir, 4 Hill, N. Y. 89; Blackwell on Tax Titles, 173, 4;
Crawford v. Schmidt, 47 Cal. 617; Grimm v. O'Connell, 54 Cal. 522; Hearst v. Eggleston, 55
Cal. 366; Brady v. Dowden, 59 Cal. 51; Pearson v. Creed, 78 Cal. 144.)
II. The assessment made in the name of the Diamond Valley Stock Company was the
deliberate and arbitrary act of the assessor, and this being the case, respondent is bound by the
acts of its authorized agent, and this agent having acted by assessing the property of appellant
to a corporation having no interest in the property so far as the record in this case shows, and
having no interest in, or claim to the property assessed to it, such assessment is absolutely
void and can not in any manner bind appellant or its property. (Kelsey v. Abbott, 13 Cal. 609;
Smith v. Board of Supervisors, 30 Iowa 536; Blatner v. Davis, 32 Cal. 328; People v.
Whipple, 47 Cal. 591; Crawford v. Schmidt, 47 Cal. 618.)
III. Whenever an attempt is made to charge or divest the estate of a citizen by statutory
modes, the proceedings required to be followed in that respect must be strictly pursued, and
any failure to do so makes the proceedings null. (Sedgwick on Stat. 319; Bensly v. Mountain
L. W. Co., 13 Cal. 306; Curran v. Shattuck, 24 Cal.
Shattuck, 24 Cal. 427; Stanford v. Worn, 27 Cal. 171; Smith v. Davis, 30 Cal. 537.)
IV. In assessing property, the name of the owner thereof should be ascertained and set
forth with equal certainty and correctness as the name of a grantee in a deed. (Hearst v.
Eggleston, 55 Cal. 365.)
V. In general the assessment must be certain in designating the person chargeable, the
amount of the charge, and the property upon which the assessment is made in order to create
a liability against either the owner of the property or the property itself to pay the taxes.
(Green v. Craft, 28 Miss. 70; Rayner v. Lee, 20 Mich. 384; Thompson v. Davidson, 15 Minn.
412; Coulson v. Harris, 43 Miss. 728; Cruger v. Dougherty, 43 N.Y. 107; People v.
Freeman, 3 Lansing 148; Westfall v. Gere, 3 Lansing 151; Clarke v. Norton, 3 Lansing 484;
Bechdle v. Lingle, 66 Pa. 38; Newman v. Wait, 43 Ver. 587; Wauwatosa v. Gunyon, 25 Wis.
271; Thompson v. Tinkcon, 15 Minn. 295; Zanesville v. Muskingum, 5 Ohio N. S. 589.)
VI. Appellant was entitled to prove, and its offer to prove that an excessive valuation was
placed upon the property described in the complaint by the assessor should have been allowed
by the trial court, and by it considered. (People v. Nelson, 36 Cal. 377.)
VII. The judgment allowing interest from its date upon the sum allowed and found, as the
additional penalty of twenty-five per centum, as well as the allowance of interest upon the
sum found due as delinquency of ten per cent. is erroneous.
The Attorney General, Peter Breen, District Attorney of Eureka county, and A. E. Cheney,
for Respondent.
I. It was the duty of defendant to furnish a statement of its taxable property in its true
name, and it ought not to be permitted to avail itself of an error which would have been
avoided if the defendant had performed its duty and given a correct statement, or called the
attention of the assessor to the error in the name, as written on the statement presented to its
agent.
II. The evidence clearly shows that the property was intended to be assessed to its true
owner, and that the defendant was generally known by the name by which it was assessed.
The identity of the true owner and the person to whom it was assessed was clearly
established.
assessed was clearly established. This is sufficient to bind the owner. (People v. Sierre Buttes
et al., 39 Cal. 511; Lake County v. S. B. Q. M. Co., 66 Cal. 17.)
III. The mistake having been caused by the neglect of the defendant to furnish a proper
statement, or correct the one made, the failure to allege the mistake would have been cured by
an amendment, which the court had full power to grant at any time, without terms, as there
could be no claim of surprise at the variance between the pleading and proof. (Bliss on Code
Plead. Sec. 427; Angell & Ames on Corp. Sec. 651.)
IV. The mistake in the name of a corporation, by adding or omitting words, is not fatal if
there be enough to distinguish the corporation, and the mistake may be either averred in the
pleading or shown in evidence under the general issue. (Culpeper A. & M. S. v. Digges, 18
Am. Dec. 708.)
V. In this state tax proceedings are not strictly construed, and the test of a valid defense is:
Has the defendant paid his tax or been injured by the acts of which he complains. (State v. W.
U. Tel. Co., 4 Nev. 347; State v. C. P. R. R. Co., 10 Nev. 47, 60; State v. Mining Co., 15 Nev.
386; State v. Sadler, 23 Pac. Rep. 800.)
VI. Every judgment should draw legal interest for the full amount which the party is
entitled to recover (except interest and costs) from the date of its rendition. If the interest on
the penalties is not properly allowable, the court can order the judgment modified, or
disregard the point under the maxim: De minimis non curat lex. (Wilson v. McEvoy, 25 Cal.
174; McConihe v. N. Y. & E. R. Co., 20 N. Y. 495.)
This is a suit against the above-named defendant and certain real estate and improvements,
described in the complaint, to recover state and county taxes, assessed against the corporation
in Eureka county for the year 1888, and to enforce against the property the lien created by
law. The plaintiff had judgment against the corporation, which appealed, and seeks a reversal
of the judgment upon two grounds.
The first defense set up is, that there was no valid assessment of the property described in
the complaint made against the defendant, The Diamond Valley Live Stock & Land
Company," but that the same was made and the property assessed against the "Diamond
Valley Stock Company, R.
pany, but that the same was made and the property assessed against the Diamond Valley
Stock Company, R. Sadler, agent, and that the true name of the corporation is The
Diamond Valley Live Stock & Land Company.
The question to be determined from the facts in this case is whether the defendant should
be required to pay the taxes, notwithstanding the mistake in the name of the corporation, or
whether the corporation was injured thereby, and the omitting of the words live and land
from the name of the company is such an error as vitiates the assessment as made by the
assessor, and relieves the corporation from the payment of its just proportion of taxes to the
support of the state and county governments for the year 1888. While on the one hand, it is
important to the security of the taxpayer that as much regularity and uniformity as is
practicable should be maintained in the naming of the owners of property, and the listing of
the same for the purpose of taxation; it is also important that, as far as practicable, all persons
and corporations liable to taxation should pay their or its just proportion of the public taxes,
and not be permitted to escape by means of slight mistakes or frivolous objections. We think
this is the plain intent of the law. Section 1080, Gen. Stat. reads: All property of every kind
and nature whatsoever within this state, shall be subject to taxation, except. And the property
of the defendant does not fall within the excepted class. Section 1082 reads: Between the
first Monday in March and the first Monday in September in each year, the county assessor *
* * shall ascertain, by diligent inquiry and examination, all property in his county, real or
personal, subject to taxation, and also the names of all persons, corporations, associations,
companies, or firms owning the same; * * * he shall then list and assess the same to the
person, firm, corporation, etc. He shall also demand from each person and firm, and from the
president, cashier, treasurer, or managing agent of each corporation, * * * a statement, under
oath or affirmation, of all property within his county owned or claimed by him, it or them. If
any person, officer or agent, shall refuse to furnish such list, or shall give a false name, or
shall refuse to give his or her name, or shall refuse to swear or affirm, he or she shall be guilty
of a misdemeanor. If the owner of the property shall fail or refuse to make out and swear to
the statement as required by the statute, the assessor shall make an estimate of the value of
such property and assess the same.
ute, the assessor shall make an estimate of the value of such property and assess the same. * *
* If the name of the owner be known, the property shall be assessed in his or her name. If
unknown to the assessor, the property shall be assessed to unknown owners.
From the foregoing, we are of the opinion that a slight error in the name of the person or
corporation taxed, when the property is correctly described, and the owners are not misled by
such name or description, the tax assessed to him or it may, notwithstanding such error, be
collected of the person or corporation intended to be taxed, provided the person or
corporation can be identified by competent evidence. In this case the omission of a part of the
name of the defendant was the fault of the vice president and managing agent of the
corporation.
On the trial in the district court, C. C. Wallace, assessor of Eureka county, testified: The
Diamond valley property, as I had always understood, belonged to Sadler before it was sold to
the company. I got my idea of the name of the company in 1888, of Sadler. He and I sat down
together. When we got through, he refused to sign the statement, and went away. I had
understood always that the name was Diamond Valley Stock Company.' The dispute
between Sadler and me was on the value of the land. I had never heard that this was the
property of any other than the Diamond Valley Stock Company, and never heard that it was
the property of the Diamond Valley Live Stock & Land Company, nor did I inquire until after
this action was commenced. Nine out of every ten persons that one would hear speak about
the property would speak of it as the property of the Diamond Valley Stock Company. I never
heard it called any other name. The company was commonly and generally known as the
Diamond Valley Stock Company.' I asked Sadler to come into my office and fix up the
statement of his property for 1888, including the property of this company. We sat down to
my desk together with the statement partially prepared before us. The name Diamond Valley
Stock Company' had been written in the statement in two places before he came inonce
near the top of the sheet, and the other near the middle of it. In each place the name is written
in large, plain letters, much larger than the rest of the writing, and the name is so conspicuous
that I do not see how it was possible that Sadler could help seeing it. We discussed the
amount of personal property of the company, and I wrote it in the statement.
the amount of personal property of the company, and I wrote it in the statement. We agreed as
to the value of the personal property, but not as to the value of some of the real estate. Mr.
Sadler refused to sign the statement, and the company never furnished me with any other
statement of their taxable property for that year. Defendant admitted that the statutory notice
of the commencement of the action had been published as required by law. It was also
admitted that the summons had been served upon the defendant corporation and upon the real
estate described in the complaint. Defendant called R. Sadler as a witness on its behalf, who
testified, that he was the agent and vice president of the Diamond Valley Live Stock & Land
Company, named as defendants in this action, and so was during all of the fiscal year 1888.
Knew Wallace as assessor of Eureka county for a number of years. In June, July, or August,
1888, Wallace made Exhibit A, and showed it to me; all the real estate made out as it is now;
valuation set down. He consulted me only as to the personal property. I never told him the
name, or talked to him at all about the name, of the corporation owning the property named in
the complaint, and sued in this action, in 1888. I went before the board of equalization in
1888 concerning this and other assessments against myself and companies, but the board
refused to act on my protests. I know that the personal property, and the description of the
real estate, were written in the statement before it was shown to me, because I saw it at the
time the statement was before Mr. Wallace and myself at his office. At this point the witness
was asked the following question: If you then saw that the description of the personal
property and real estate written in the statement, how is it that you did not also see the name
Diamond Valley Stock Company,' which was twice written in large letters on the same sheet
as that which you said you did see written there? Answer. I did not say that I did not see the
name. That was his lookout, and not mine. I did not go there to correct the assessor's
mistakes. I represented to the board that this assessment was too high. I signed no statement
or assessment of any property in which I was interested for the year 1888, because Mr.
Wallace had assessed it all to high. It was admitted that all the property described in the
complaint was owned by, and in the possession of, the corporation defendant herein, under
recorded deeds.
under recorded deeds. Here we have a corporation defendant, which, by its vice president and
managing agent, appeared before the assessor to give in the name, list, and statement of his
company's assessable property. He sees that there is a mistake in the name of the corporation
as written by the assessor, and he fails to correct the same, and upon the trial he says: I did
not go there to correct the mistakes of the assessor. That is just what he did go there for, and
it was his duty to have called the attention of the assessor to any error or mistake that might
have appeared upon the face of the statement. He not having done so, he will not now be
permitted to take advantage of his own wrong. For it is not to be overlooked that such errors
will, in most cases, arise from the default of the taxpayer himself, who fails to perform the
duty required of him by law, of giving in his name and list of property to the assessor.
The second error assigned by the appellant is, the refusal of the court to permit the
defendant to show that an excessive valuation was placed upon the property by the assessor.
An answer to that objection is that the agent of the defendant failed and refused to swear to
the statement as made by the assessor, and made no statement of his own listing the
company's property for the year 1888. Section 1091, Gen. Stat. Nev., reads: Where the
person complaining of the assessment has refused to give the assessor his list under oath, as
required by this act, no reduction shall be made by the board of equalization in the assessment
made by the assessor. And the same rule will be enforced in a court of law, and the answer
does not raise the issue. (See State v. Sadler, 21 Nev. 13.)
Section 1112, Gen. Stat., makes the civil practice act applicable in tax-suits. Section 4903
means that interest shall be allowed at the legal rate on all moneys after they become due, on
any judgment recovered before any court in this state. (Himmelman v. Oliver, 34 Cal. 247.)
The judgment of the district court is affirmed.
____________
[No. 1331.]
THE STATE OF NEVADA, Respondent, v. THE CENTRAL
PACIFIC RAILROAD COMPANY, Appellant.
TaxationUnsurveyed Public Lands.Unsurveyed public lands acquired by the appellant under the acts of
congress of July 1, 1862, and July 2, 1864, are exempted from taxation by the state.
IdemDescription of Unsurveyed Lands.A description of unsurveyed lands as certain odd numbered sections
as their designation will appear when the surveys of the government are extended over them is
insufficient for their identification for taxation and is not such a description as is required by the revenue
laws of Nevada. This principle applies equally when it is only the possessory claim to the land that is
assessed.
IdemTaxes Upon Subdivisions.The law permits and the taxpayer has a right to pay the tax on subdivisions
of his property without paying the taxes upon his entire property.
IdemSufficiency of Answer.In an action to recover delinquent taxes and penalties an answer denying a
possessory claim to the lands and stating facts showing that the rights claimed are untaxable, presents a
good defense, although it does not deny all claim, title or interest in the property assessed. (Concurring
opinion of Bigelow, J.)
IdemTenderDuty of Tax Receiver.It is the duty of the tax receiver to receive the full taxes on the least
subdivisions entered on the assessment roll, when properly tendered, and to give his receipt therefor. When
a public officer has been clothed by statute with power to do an act which concerns the rights of third
persons, the execution of the power may be insisted on, though the phraseology of the statute be permissive
merely, and not peremptory. (Concurring opinion of Bigelow, J.)
Appeal from the District Court of the State of Nevada, Lander county.
Baker & Wines, for Appellant.
I. The court erred in ordering judgment for respondent for the whole amount of the tax
together with all of the statutory penalties added thereto. The taxes alleged to be due from
appellant upon all of the property assessed, except upon the lands described upon the
assessment roll, were all unconditionally tendered prior to the time when penalties could have
been added, and were subsequently paid upon written demand of the tax collector.
added, and were subsequently paid upon written demand of the tax collector. A tender, if kept
good, and if in all respects sufficient, is the same as payment, and relieves a party making
such tender from the payment of interest or penalties upon the amount tendered. (Shields v.
Lozear, 22 N. J. Eq. 447.) A tender, so far as the computation of interest is concerned, must
be considered as payment. The same must be true as to statutory penalties for alleged
non-payment of taxes. (Hidden v. Jordan, 39 Cal. 61.) A tender will defeat a lien. (Tiffany v.
St. John, 65 N. Y. 314; Green v. Fry, 93 N. Y. 353.)
II. Prior to July 10, 1886, the supreme court of the United States had several times decided
that lands embraced in the grants to the Pacific railroads were not taxable by the state
authorities until the costs of making the surveys had been paid by the railroad company. (R.
R. Co. v. McShane, 22 Wallace, 444; R. R. Co. v. Trail County, 115 U.S. 600.) The act of
congress of July 10, 1886, in terms does not apply to lands unsurveyed. A want of power to
tax unsurveyed lands still exists. The lands cannot be identified, and the government grant
does not attach until such lands are identified. The purpose of congress was, no doubt, to
preserve the subject matter subject to the lien of the government. Therefore, we insist that
these lands are not taxable. There cannot be a legal identification until the lines dividing the
even from the odd numbered sections are run. (Bullock v. Rouse, 81 Cal. 590; United States
v. Curtner, 38 Fed. 1 and 9; Whitney v. Gunderson, 31 Wis. 359, 380, 381, 382.)
III. Every character of possession mentioned in the statute as being the subject of taxation,
must be an actual possession, and not the constructive possession, which follows the legal
title. A constructive possession is not the subject of taxation. To tax that is simply to tax the
title. A constructive possession can not exist in the absence of title. (Hersee v. Porter, 100 N.
Y. 403; Hale & Norcross G. & S. M. Co. v. Storey Co., 1 Nev. 104; State v. Moore, 12 Cal.
56; People v. Shearer, 30 Cal. 645; People v. Frisbie, 31 Cal. 146; People v. Cohen, 31 Cal.
210; People v. Crockett, 33 Cal. 150; People v. Castro, 39 Cal. 65, 69; Riley v. Lancaster, 39
Cal. 354; People v. Black Diamond, 37 Cal. 54; Barrett v. Amerein, 36 Cal. 322.)
IV. It was a palpable error for the court to deny the application of appellant to remove the
cause to the circuit court. If the title, or that which depends upon title, is sought to be
taxed, the power to do so depends upon a construction of the acts of congress, before
cited, and which clearly involves a federal question.
the title, or that which depends upon title, is sought to be taxed, the power to do so depends
upon a construction of the acts of congress, before cited, and which clearly involves a federal
question. (Speer on Removal, pp. 28-30; Dillon on Removal, p. 91, Sec. 76; R. R. Co. v.
Mississippi, 102 U.S. 135; Starin v. New York, 115 U.S. 248; Germany I. Co. v. Wisconsin,
119 U.S. 473.)
J. F. Alexander, Attorney General, W. D. Jones, District Attorney of Lander county, and
I. The amendment to the answer cannot be considered. It is no part of the judgment roll. It
was filed without leave of court, without motion or notice and without complying with rule
17 of the district court. (Winter v. Winter, 8 Nev. 134; Smith v. Yreka Water Co., 14 Cal. 201;
Haydon v. Haydon, 46 Cal. 337; Harney v. Corcoran, 60 Cal. 317; Martin v. Thompson, 62
Cal. 619; 3 Estee's Plead. 4447-4452.)
II. The court minutes cannot be brought here except by statement. (Corbett v. Job, 5 Nev.
205; Imperial v. Barstow, 5 Nev. 253-254; Caldwell v. Greely, 5 Nev. 262; Irwin v. Samson,
10 Nev. 282; Simpson v. Ogg, 18 Nev. 28.)
III. There is no federal question in the case. (Murdock v. Memphis City, 20 Wall. 638;
Insurance Co. v. Henderson, 92 U.S. 286; Theurkauf v. Ireland, 11 Saw. 514; Dowel v.
Griswold, 5 Saw. 39; Carson v. Dunham, 121 U.S. 422-429; Gold Washing Co. v. Keyes, 96
U.S. 199; Berger v. Douglas County, 5 Fed. 23; Davenport N. Bank v. Mittelbuscher, 15 Fed
225; Kirtland v. Hotchkiss, 100 U.S. 491; Memphis Gas Co. v. Shelby Co., 109 U.S. 398;
Manhatten R. Co. v. New York, 18 Fed. 195; Starin v. New York, 115 U.S. 248; Romie v.
Casanova, 91 U.S. 379; McStay v. Friedman, 92 U.S. 723; Trafton v. Nougues, 4 Saw. 180;
Hoadley v. San Francisco, 94 U.S. 4; Austin v. Gagan, 39 Fed. 626; San Francisco v. Itsel,
U.S. S. C. 1889, 33 L. R. 570; Beatty v. Benton, U.S. S. C., 10 S. C. Rep. 747.)
IV. This action is a case arising under the revenue laws of this state, and it does not matter
whether defendant has title. The assessment is under our statute requiring the assessment of
possessory claims to lands and the state has power to tax such possessory claims. (Gen. Stat.
of Nev. 1080, 1081 and 1088; People v. Shearer, 30 Cal. 645; Kirtland v. Hotchkiss, 100
U.S. 491; People v. Cohen, 31 Cal. 210; Gold Washing Co. v. Keyes, 96 U.S. 199; People v.
B. D. C. M. Co.,
People v. Shearer, 30 Cal. 645; Kirtland v. Hotchkiss, 100 U.S. 491; People v. Cohen, 31
Cal. 210; Gold Washing Co. v. Keyes, 96 U.S. 199; People v. B. D. C. M. Co., 37 Cal. 54;
Memphis Gas Co. v. Shelby Co., 109 U.S. 398; Berger v. Douglas Co., 5 Fed. 23; People v.
Crockett, 33 Cal. 150; Davenport N. Bank v. Mittelbuscher, 15 Fed 225; Wright v.
Cradelbough, 3 Nev. 346.)
V. The description of the lands in the complaint is sufficient. (Gen. Stat. 1088; People v.
Crockett, 33 Cal. 150; High v. Shoemaker, 22 Cal. 363; Bosworth v. Danzien, 25 Cal. 296;
Wright v. Roseberry, 121 U.S. 501; State v. C. P. R. R. Co., 10 Nev. 48, 62; State v. C. P. R.
R. Co., 22 Pac. Rep. 339.)
VI. The answer of defendant, and the amendment to the answer, are not sufficient to raise
an issue under 1108 Gen. Stat. There is no denial of all claim, title or interest in the property
assessed. (State v. C. P. R. R. Co., 9 Nev. 87-90; State v. Tel. Co., 4 Nev. 345-6; People v.
Pearis, 37 Cal. 259; People v. Frisbie, 31 Cal. 146; State v. C. P. R. R. Co., 22 Pac. Rep.
240; Robinson v. Gaar, 6 Cal. 273; State v. Sadler, 23 Pac. Rep. 799.)
VII. The tender was only on part of the property assessed against the company and is not
good, therefore the penalties attached. The whole of the taxes must be tendered. The action
for taxes on all of the property assessed against an individual is entire and the whole tax must
be paid or tendered. (State v. Cal. M. Co., 13 Nev. 293; State v. Yellow Jacket, 14 Nev. 247;
State v. Carson Sav. Bank, 17 Nev. 147, 165; State v. C. P. R. R. Co., 9 Nev. 87, 90; Wells,
Fargo & Co. v. Dayton, 11 Nev. 162; 2 Desty's Taxation, 815, 722; Cooley's Taxation, 323.)
VIII. The statute provides that no ex-officio tax receiver shall receive any taxes for any
portion less than the least subdivision entered upon the assessment roll. This implies that the
treasurer may demand all. (Endl Interp. of Stat. p. 557, n.; Hankins v. People, 106 Ill. 628;
Drake v. State, 5 Tex. App. 649; Chiles v. State, 2 Tex. App. 36.)
IX. Every mile of its road and every acre of its lands is separately liable for all of the taxes
assessed against the company. (1 Blackwell's Tax Titles, S. 479; Cooley's Taxation, 323; 2
Desty's Taxation, 815; Drigger v. Cassady, 71 Ala. 529; Rinard v. Nordyke, 76 Ind. 130;
Mesker v. Koch, 76 Ind. 68; Ludlow v. Ludlow, 109 Ind. 199; Cave v. Houston, 65 Tex. 619;
Yuba v. Adams, 7 Cal. 36; Cowell v. Washburn, 22 Cal. 522; Reeve v. Kennedy, 43 Cal. 653;
Trust Co. v. Young, 39 N. W. Rep.
Reeve v. Kennedy, 43 Cal. 653; Trust Co. v. Young, 39 N. W. Rep. 116; State v. C. P. R. R.
Co., 9 Nev. 87.)
This is an action for the recovery of delinquent taxes assessed against the real and personal
property of the defendant situated in Lander county. Included in the list of assessed property
is a large quantity of unsurveyed land. The principal question in the case is whether land of
this character is taxable or not. These lands were acquired by the railroad company under acts
of congress of July 1, 1862, and July 2, 1864. The act of July 2, 1864, provides as follows:
Sec. 21. That before any land granted by this act shall be conveyed to any company or party
entitled thereto under this act, there shall first be paid into the treasury of the United States
the cost of surveying, selecting, and conveying the same, by the said company or party in
interest as the title shall be required by said company, which amount shall, without any
further appropriation, stand to the credit of the proper account, to be used by the
commissioner of the general land office for the prosecution of the survey of the public lands
along the line of railroad, and so from year to year, until the whole shall be completed, as
provided under the provisions of this act. (13 U.S. Stat. at Large, 365.)
In the case of Railway Co. v. McShane, 22 Wall, 462, the court, in considering this
provision, said: That the payment of these costs of surveying the land is a condition
precedent to the right to receive the title from the government can admit of no doubt. Until
this is done, the equitable title of the company is incomplete. There remains a payment to be
made to perfect it. There is something to be done, without which the company is not entitled
to a patent. The case, clearly, is not within the rule which authorizes state taxation of lands,
the title of which is in the United States.
The reason of this rule is also fully applicable to this case. The United States retains the
legal title by withholding the patent, for the purpose of securing the payment of these
expenses, and it can not be permitted to the states to defeat or embarrass this right by a sale of
the lands for taxes. If such a sale could be made, it must be valid if the land is subject to
taxation, and the title would pass to the purchaser. If no such title could pass, then it is
because the land is not liable to the tax; and the treasurers of the counties have no right
to assess it for that purpose.
could pass, then it is because the land is not liable to the tax; and the treasurers of the counties
have no right to assess it for that purpose.
But when the United States parts with her title, she has parted with the only means which
that section of the statute gives for securing the payment of these costs. It is by retaining the
title that the payment of costs of survey is to be enforced. And, so far as the right of the state
to tax the land is concerned, we are of opinion that, where the original grant has been
perfected by the issuance of the patent, the right of the state to tax, like the right of the
company to sell, the lands, has become perfect.
Again, in the case of Railroad Co. v. Traill Co., 115 U.S. 607, these principles were
reaffirmed. Said the court : In the case of Railway Co. v. Prescott, which was a writ of error
to the supreme court of Kansas, this court held these lands could not be assessed and sold for
taxes under state laws until this cost of surveying them was paid to the United States, because
the government retained the legal title to the same to compel this payment. This case was
decided in 1872. In 1874, the case of Railway Co. v. McShane came before us, involving the
same question, and because it also involved some other points decided in Railway Co. v.
Prescott, which the court reconsidered and overruled, it necessarily received full
consideration, the result of which was to reaffirm the proposition that, until the United States
was reimbursed for the expenses of the survey of those lands, they were not subject to state
taxation.
Advantage was taken of this interpretation of the law to escape taxation by neglecting to
pay the costs of surveys. To obviate the difficulty, congress enacted that no lands granted to
any railroad corporation by any act of congress shall be exempt from taxation by states,
territories and municipal corporations, on account of the lien of the United States upon the
same for the costs of surveying, selecting and conveying the same, or because no patent has
been issued therefor; but this provision shall not apply to lands unsurveyed. (U.S. Stat. at
Large, 1886, p. 143.)
This is the only enactment of congress waiving the lien of the government upon railroad
lands for the purpose of state taxation. A reason for withholding the right to tax unsurveyed
lands may be found in the fact that it is impracticable to assess them. It is a well-established
principle of law that land assessed for the purpose of taxation must be so described that it
may be identified.
sessed for the purpose of taxation must be so described that it may be identified. The
purposes of this requirement, as stated by Judge Cooley, are: First, that the owner may have
information of the claim made upon him or his property; second, that the public, in case the
tax is not paid, may be notified what land is to be offered for sale for the non-payment; and,
third, that the purchaser may be enabled to obtain a sufficient conveyance. (Cooley, Tax'n
284.)
The lands granted to the railroad company were the odd-numbered sections within the
limits of twenty miles on each side of the railroad, except such as had been sold or otherwise
disposed of by the United States, or to which a homestead or pre-emption claim had attached,
or mineral lands. Until the surveys are made it cannot be known what parts of the lands are
within the enumerated exceptions, nor what sections or parts of sections will belong to the
company, nor until then, can the locality of the lands be determined so that a description may
identify them. The exemption enforces the principle that lands may not be assessed for
taxation unless described so that they may be found. It is said, however, that the possessory
interest of the defendant is taxable under the revenue laws of the state, independently of the
land itself, or the title to it. It must be borne in mind that the unsurveyed lands are not
described by metes and bounds, or by common designation or name, but as sections and parts
of sections, and, as alleged by the complaint, as their designation will appear when the
surveys of the United States are extended over them.
It is plain that this is not a description by which the identity of the lands can be established,
and it is equally plain that possession of lands so described cannot be established until the
surveys are made. The reasons suggested as having induced congress to exempt unsurveyed
lands from taxation will exclude a possessory interest in such lands from taxation when
described only as their designation will appear when the surveys of the government are
extended over them.
The answer of defendant alleges tender and payment of the tax imposed upon all of the
assessed property described in the complaint other than lands. Defendant had the right, under
the statute (Gen. Stat. Sec. 1096) to pay the taxes upon any subdivision of its property entered
upon the assessment roll. And no judgment for taxes or penalties should be entered against
defendant by reason of its ownership of property, the taxes upon which have been paid in
conformity with this provision of the statute.
defendant by reason of its ownership of property, the taxes upon which have been paid in
conformity with this provision of the statute.
A motion has been made in this court to amend the record by striking out a pleading
entitled Amendment to Answer. The motion is denied upon the authority of the following
cases: Satterlee v. Bliss, 36 Cal. 521; People v. Romero, 18 Cal. 93; Boston v. Haynes, 31
Cal. 107; Bonds v. Hickman, 29 Cal. 464; Boyd v. Burrel, 60 Cal. 280. A similar answer was
considered insufficient in the case of People v. Pearis, 37 Cal. 259. It is unnecessary for us,
however, to rule upon the point, as the complaint states the facts upon which our decision is
based.
Judgment reversed, and cause remanded.
I concur. The plaintiff obtained judgment in the court below, upon the pleadings. This
judgment must, of course, be reversed, if the complaint does not state facts sufficient to
support it, or if the answer presents any defense to the action. We are, therefore, confined,
upon this appeal, to a consideration of the pleadings.
1. Included in the property assessed to the defendant, is the possessory claim to certain
unsurveyed lands, which are not described further, than that they will, when the United States
surveys are extended over them, be designated as certain congressional subdivisions. A
possessory claim to land is to be assessed as real estate, and Gen. Stat. Sec. 1088, requires
that it shall be described by metes and bounds, or by common designation or name. If not so
described, the assessment is void. (People v. Mahoney, 55 Cal. 286; Keane v. Cannovan, 21
Id. 302.)
The description here, does not comply with this statute. The statement that land will, some
time in the future, be designated as a certain section, does not sufficiently describe it for the
purposes of taxation. It does not show its present location, nor identify it as it now exists. And
further, we know that it is impossible to tell, in advance of the official surveys, how any
particular piece of land will, finally, be designated. Says the court, in Robinson v. Forrest, 29
Cal. 325: Neither a private survey nor one made under the authority of the state, will answer
this purpose. And again: The lines are not ascertained by the survey, but they are created,
and although a surveyor may, in advance of the making of the subdivision of the
township, by the deputy of the United States surveyor general, run lines with the greatest
practicable exactness from the corners established on the exterior lines of the township,
to ascertain the bounds of any given quarter-quarter section, still, when the survey comes
to be made under the direction of the surveyor general, the difference between the two
surveys may be such that the forty-acre lot, which, under the private, and theoretically
the more accurate survey, appeared to fall within the lands listed to the state, will be
excluded from the list, or vice versa."
the survey, but they are created, and although a surveyor may, in advance of the making of the
subdivision of the township, by the deputy of the United States surveyor general, run lines
with the greatest practicable exactness from the corners established on the exterior lines of
the township, to ascertain the bounds of any given quarter-quarter section, still, when the
survey comes to be made under the direction of the surveyor general, the difference between
the two surveys may be such that the forty-acre lot, which, under the private, and theoretically
the more accurate survey, appeared to fall within the lands listed to the state, will be excluded
from the list, or vice versa.
In Middleton v. Low, 30 Cal. 605, it is again said: There is, in fact, no such tract of land
as that described in the petition, until it has been located within the congressional township
by an actual survey and establishment of the lines, under the authority of the United States,
and the survey has been approved by the proper United States surveyor general. (See, also,
Bullock v. Rouse, 81 Cal. 590; S. C. 22 Pac. Rep. 919.) It follows that the complaint does not
state facts sufficient to support the judgment, as to the taxes upon the land.
2. This is sufficient to dispose of the appeal, but as there are other important questions in
the case which have been fully argued, are fairly raised, and are likely to arise again, it is
proper to consider them.
The motion to strike out the amendment to the answer, upon the ground that it was filed
without leave, should be denied, because not made in the court below, where, had it been
sustained, the proper leave to file it might have been obtained. (Clarke v. Lyon Co., 7 Nev.
76; Longabaugh v. Railroad Co., 9 Nev. 271.)
3. It is claimed that the answer is insufficient, because it does not deny all claim, title, or
interest in the property assessed, at the time of the assessment, in the language of section
1108, Gen. Stat. It seems to me, however, that, taken altogether, it states a good defense. An
attempt was made to assess a possessory claim to lands which, it was alleged, would some
time be designated as certain odd sections, and which, we know, had been granted to the
defendant, by the United States. It could not, truthfully, deny all claim to the land, but it
denied any possessory claim thereto, and stated facts showing that the right which it did have,
was not subject to taxation.
This must be held sufficient, or else under the guise of regulating the pleadings, a party may
be debarred from stating facts which constitute a complete defense to an action, simply
because the truth will not permit him to state them in a particular form of words. This cannot
be done. (Wright v. Cradlebaugh, 3 Nev. 349; Bronson v. Kinzie, 1 How. 628; Green v.
Biddle, 8 Wheat. 1.)
4. Under the facts stated in the answer, the defendant had no taxable interest in the land,
nor was it subject to state taxation.
(a) It is therein alleged that the lands are unsurveyed; that the defendant has no possessory
claim to them; and that the only claim it has, is under the land grant acts of congress, of July
1, 1862, and July 2, 1864. Several attempts have been made to tax some of the lands granted
by these acts, after they were surveyed, but it was finally settled that this was not permissible
before patents had issued, upon the ground that congress had made the payment of the cost of
surveying a condition of the grant, and that, until the patents issued, the government held a
lien thereon as security therefor, which exempted them from state taxation. (Railroad Co. v.
Traill Co., 115 U.S. 607.) By the act of July 10, 1886, congress, however, authorized such
taxation, notwithstanding this lien, (State v. Railroad Co., 20 Nev. 373;) but it was specially
provided that this authorization should not apply to lands unsurveyed. (U.S. Sat. at Large,
1886, p. 143.) So, if the government ever had a lien upon those unsurveyedif the payment
of these costs was ever a condition precedent to the passage of the title, it still exists, and they
are consequently exempt from state taxation. It is argued, however, that there can be no cost
of surveying, and consequently no lien, until the surveys are made. This is ingenious, but I
think not tenable. The most of the land was unsurveyed at the time of the grant, and it was
certain that some time the United States would have to incur the expense of segregating it
from the mass of the public domain. The language of the act is, that none of the lands granted
shall be conveyed until after the cost of surveying is paid. This has been construed, so far as
surveyed lands are concerned, to mean that thereby congress intended to attach a condition to
the grantto hold a lien on the land for such costs. If so, why does it not also mean that it
intended to attach the same conditionto hold the same lien upon unsurveyed landsfor
the cost that must certainly some time accrue?
conditionto hold the same lien upon unsurveyed landsfor the cost that must certainly
some time accrue? Congress could attach any condition to the grant that it saw fit. Until
surveyed, and its character and status determined, no patents could be issued. When this was
done, then the cost would be incurred, and it seems clear that the land was to be all the time
holden for it; as well before, as after surveys.
(b) Upon another ground, unsurveyed lands are not subject to state taxation, although
granted in proesenti, where surveys are necessary to the issuance of the patents. Lands for
which no patent has issued, are sometimes subject to such taxation, but it is only under
peculiar circumstances, which are quite clearly stated in Railroad Co. v. Price Co., 133 U.S.
505. It is there said:
It follows that all the public domain of the United States within the state of Wisconsin
was, in 1883, exempt from state taxation. Usually the possession of the legal title by the
government determines both the fact and the right of ownership. There is, however, an
exception to this doctrine with respect to the public domain, which is as well settled as the
doctrine itself, and that is, that where congress has prescribed the conditions upon which
portions of that domain may be alienated, and provided that upon the performance of the
conditions a patent of the United States shall issue to the donee or purchaser, and all
conditions are complied with, the land alienated being distinctly defined, it only remaining for
the government to issue its patent, and until such issue holding the legal title in trust for him,
who, in the mean time is not excluded from the use of the propertyin other words, when the
government has ceased to hold any such right or interest in the property as to justify it in
withholding a patent from the donee or purchaser, and it does not exclude him from the use of
the propertythen the donee or purchaser will be treated as the beneficial owner of the land,
and the same be held subject to taxation as his property.
In several respects the case at bar does not come within the rules here laid down. The
donee is not entitled to the patent until the land is surveyed, and the fact also ascertained in
some manner, that it is not within some of the excepted tracts, that are not included in the
grant. This, certainly, cannot be done until its boundaries are clearly defined.
Again, under the act of congress, entitled An act to prevent the unlawful occupancy of
public lands, approved February 25, 1885, it seems that the donee is also excluded from the
beneficial use or possession of unsurveyed land, because, until surveyed, it is all a part of the
public domain, and the defendant, no more than any one else, has any right to the possession
of any particular tract or portion of it.
5. Tender. The complaint describes the property assessed in nine different subdivisions,
and then alleges that certain taxes were levied upon the whole thereof. It is in the statutory
form and is not required to state the details of the assessment. It, consequently, does not
follow from this, either that the property was, or was not, assessed in such subdivisions. But it
was the assessor's duty to enter it upon the assessment roll, in at least that number of parcels,
and value each division separately. In the absence of allegation of proof to the contrary, we
must presume that he did his duty. (Lawson Pres. Ev. 53.)
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. Such an assessment is void. (Cooley, Tax'n, 279; People v.
Hollister, 47 Cal. 408.)
The answer alleges, that prior to the time the taxes became delinquent, the defendant
unconditionally tendered to the tax receiver of Lander county, all the taxes due upon a
number of these subdivisions, or parcels of property, amounting, in all, to fifteen thousand six
hundred and forty-five dollars and sixty-six cents; that he refused to receive it, but
subsequently to the commencement of this action, it was demanded by the district attorney,
and paid to the county. The court held the plea of tender insufficient, and gave judgment for
the full amount of tax and penalties, less the sum paid. The question is: can a taxpayer pay the
taxes upon some subdivisions of his property, and not on all? It may be admitted, that, except
under statutory authority, he cannot. Several apparently conflicting provisions of our statutes
can be cited, which seem to indicate that the legislature did not understand it had authorized
it. And yet, the language of Gen. Stat. Sec. 1096, but no tax receiver shall receive any taxes
for any portion less than the least subdivision entered upon the assessment roll," seems to
clearly answer the question in the affirmative.
subdivision entered upon the assessment roll, seems to clearly answer the question in the
affirmative. If he is not to receive the tax on anything less than the least subdivision, then
certainly the manifest implication is, that he can receive it on anything more than that. Words
of a statute are never to be construed as unmeaning, if it is possible to avoid it; but if the tax
receiver must not receive the tax on anything less then the whole property, then certainly it is
meaningless to forbid him receiving it on less than a subdivision. As the defendant tendered
the taxes on what was certainly a subdivision of its property, it is unnecessary to consider
whether anything less would also have been a subdivisionfor instance, whether it could pay
on each forty acres of its lands, and demand a receipt therefor.
It is argued that it is a matter of discretion with the tax receiver, whether he will receive
the taxes so tendered or not. But this cannot be. Where a public officer has been clothed by
statute, with power to do an act which concerns the rights of third persons, the execution of
the power may be insisted on, though the phraseology of the statute be permissive merely,
and not peremptory. (Mayor v. Furze, 3 Hill, 614.)
Nor was the amendment to section 1111, Gen. Stat., made a year later, a repeal of this
provision, becauseFirst, There is no necessary conflict between them; and secondly, so far
as any bearing upon this question is concerned, the amendment was simply a re-enactment of
the section as it originally stood. It cannot be supposed that the legislature, in one section of a
statute, intended to repeal another section of the same act.
6. The question of removal to the United States circuit court, seems to have been virtually
abandoned by the appellant upon the argument, and therefore requires no particular
consideration.
____________
21 Nev. 107, 107 (1891)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JANUARY TERM, 1891.
____________
Volume 21
____________
21 Nev. 107, 107 (1891) State v. Depoister
[No. 1324.]
THE STATE OF NEVADA, Respondent, v. SAMUEL G.
DEPOISTER, Appellant.
Criminal LawRapeAttestation of Signature to Complaint.It is not necessary that a signature to a criminal
complaint, executed by the complainant's mark, should be attested by a subscribing witness, when the
magistrate certifies upon the complaint that it was subscribed and sworn to in his presence.
IdemProof of Evidence Taken at Preliminary Examination.At the trial on an indictment the parol testimony
of the committing magistrate and of the clerk who wrote the testimony at the preliminary examination is
admissible to show that the depositions were taken and the examination had in the mode and according to
the requirements of the law.
IdemSignature to DepositionsMere Informalities.The use of the word signature instead of the word
mark by the magistrate, and the misplacing of the words witness to the above signature by the
magistrate below his jurat, are mere informalities.
IdemImplied Waiver of Privileged Communications.Section 3406, Gen Stat. of Nev. provides, that a
licensed physician or surgeon shall not, without the consent of the patient, be examined as a witness as to
any information acquired in attending the patient which was necessary to enable him to
prescribe or act for the patient."
was necessary to enable him to prescribe or act for the patient. Held, that such consent may be either
express or implied, and that when the parents of a child institute criminal proceedings charging a defendant
with committing rape upon the child and are principal witnesses against him, testifying to the nature of the
injury and ailment for which the physician prescribed, a waiver of the protection which the law gives to the
confidential information acquired by the physician will be implied. (Bigelow, J., dissenting.)
IdemFailure to Record VerdictNot Prejudicial.The filing of the verdict by the clerk instead of recording
it before he reads it to the jury will not invalidate it, when it is not claimed that the defendant was injured
thereby or that the verdict is not the one upon which judgment was pronounced. Such irregularity comes
within the statute which provides, neither a departure from the form or mode prescribed by this act in
respect to any pleadings or proceedings, nor an error or mistake therein, shall render the same invalid,
unless it have actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.
Gen. Stat. 4469.
IdemRapePenetrationProof RequiredThe slightest proof of penetration will justify submitting the
question to the jury and such proof can be inferred from circumstances. In this case there was proof of
penetration. (Bigelow, J., dissenting.)
Appeal for the District Court of the State of Nevada, Humboldt County.
M. S. Bonnifield, for Appellant.
I. The depositions were neither signed nor authenticated as required by law, and their
admission in evidence was error prejudicial to defendant.
II. The court erred in admitting parol testimony to show that the depositions were
regularly taken. The record of the proceedings at the preliminary examination itself should
show compliance with the statutory requirements.
III. The verdict was not recorded as required by law, and until so recorded was without
force or validity. (2 Thompson on Trials, 2635; Bishop v. Mugler, 33 Kan. 145; Root v.
Sherwood, 6 Johns, N. Y. 68; Proff. Jury Trials, 460.)
IV. There was no proof of penetration. At most, the proof shows no more than an attempt
to commit rape. The authorities all agree that penetration is necessary to constitute rape. (2
Bishop Crim. Law, 6th. Ed. 1132.)
The Attorney General, for Respondent.
I. Defendant having questioned them, it was entirely competent to prove by parol
testimony the occurrence of facts at the examination which were not apparent of record. It
was proven by competent evidence that the depositions were properly taken and that
defendant was accorded every legal right.
II. The objection to the testimony of the physician is not well taken. The exemption of
physicians from testifying to privileged communications applies solely to civil procedure and
has no relation to criminal procedure.
The defendant was indicted, tried, and convicted for the crime of rape upon the person of
Bertha May Sadler, of the age of about seven years. The appellant contends that the judgment
should be set aside, and a new trial granted, on the following grounds: First, That the court
erred in permitting the prosecuting attorney to read to the jury the complaint upon which the
warrant of arrest was issued, and the depositions of Bertha May Sadler and Lou Alexander.
Because no complaint was laid before the magistrate of the commission of a public offense;
the magistrate did not examine, on oath, the complainant or prosecutor, nor any witness, and
did not require the deposition of any witness to be reduced to writing and subscribed by the
witness, or otherwise; it does not appear that any such examination was made or any such
deposition taken; the alleged complaint is not signed by the complainant; his alleged mark is
not witnessed as required by law, and is not witnessed at all. The complaint is sufficient in
form and substanceit states the title of the court, the name of the party accused, and the
nature of the offense charged in ordinary and concise language, and demands the issuing of a
warrant for the arrest of the party named therein.
The other objection to the complaint, is, that the party signing his name to the complaint
by making his mark, leaving the name itself to be written by another hand, must have his
signature attested by a subscribing witness. The complaint is made in the presence of and
filed with the magistrate for his information, and if he is satisfied that a crime has been
committed it is his duty to issue a warrant for the arrest of the party named therein, and to
notify the accused of the nature of the charge, and the name of the party making the
same.
therein, and to notify the accused of the nature of the charge, and the name of the party
making the same. The complaint appears to have been made out by or in the presence of the
magistrate, the complainant signing the same with his mark, some one else writing the full
name of complainant. He then swore to the same, and the magistrate certifies that the same
was subscribed and sworn to before him, etc. We think this is all that the law requires.
The case of Commonwealth v. Sullivan, 14 Gray 98, is directly in point, where in the court
said: But it by no means follows that the signature is not valid without such attesting witness
* * * and in reference to complaints to a justice of the peace, presented by the complainant
personally, and accompanied by taking the usual oath to the complaint before such justice,
that the same is true, there can be no such necessity. The party virtually acknowledges the
complaint as duly signed by him. This must clearly obviate all necessity of further proof of
the signature. (See, also, Commonwealth v. Quin, 5 Gray 478.) The magistrate is not
compelled to examine other witnesses than the complainant before issuing his warrant of
arrest. All that the statute requires is that the magistrate should be satisfied that a crime had
been committed within his jurisdiction.
The objections urged against the reading of the depositions of Bertha May Sadler and Lou
Alexander to the jury are as follows: That they were irrelevant, immaterial and incompetent,
and that the proper foundation had not been laid for their introduction, and particularly in
this: It does not appear that at the examination witness Bertha was examined in the presence
of the defendant, or that he had the privilege of cross-examination; it does not appear that the
testimony of said witness was read over to her, and corrected, or that she was given an
opportunity to correct the same as she might desire; it does not appear that said Bertha
subscribed her alleged deposition, or that she refused to sign it. No reason is assigned for such
refusal, if any. The alleged mark of said Bertha to said deposition is not witnessed as required
by law, or at all. Said alleged deposition is not duly authenticated, is not authenticated at all.
Neither of said papers have the slightest earmark of a preliminary examination, or of having
any connection therewith. They are not certified to be, nor do they purport to be, any part or
have any connection with a preliminary examination."
nary examination. The objections to the introduction of the deposition are without any real
merit.
Section 4036, Gen. Stat. reads: The witnesses shall be examined in the presence of the
defendant, and may be cross-examined in his behalf. If either party so desire, the examination
shall be by interrogatories, direct and cross; provided, by consent of parties, the testimony
may be reduced to writing in narrative form. The testimony so taken may be used by either
party on the trial of the cause, and in all proceedings therein, when the witness is sick, out of
the state, dead, or when his personal attendance can not be had in court. When the testimony
of each witness is all taken, the same shall be read over to the witness, and corrected, as may
be desired, and then subscribed by the witness; or, if he refuses to sign it, the fact of such
refusal, and any reason assigned therefor, must be stated, and the same shall be tested by the
magistrate. And such testimony, so reduced to writing, and authenticated according to the
provisions of this section, shall be filed by the examining magistrate with the clerk of the
district court of his county. * * * The caption of said deposition is as follows: In the justice
court, Union township, Humboldt county, Nev. The State of Nevada, plaintiff, vs. Samuel G.
Depoister, defendant. Bertha May Sadler, being duly sworn, deposes and says. Then follows
the testimony given by question and answer, concluding with the signature and jurat, as
follows. Bertha May Sadler, her X mark. Subscribed and sworn to before me this 6th day of
August, 1889. E. S. Archer, J. P., and witness to the above signature. The court, over the
objections of the defendant, permitted the prosecuting attorney to place on the stand E. S.
Archer, the committing magistrate, and W. C. Owens, who wrote down the testimony at the
preliminary examination, and they both testified to the fact that the complaint was read over
to the defendant; that the depositions were taken and reduced to writing in the presence of the
defendant, and that he was given an opportunity to cross-examine the witness Bertha May
Sadler; that the testimony was read over to her, and she was given an opportunity to correct
the same; and that she signed the same by making her mark in the presence of the witnesses,
and the same is attested by the committing magistrate as a witness to her signature, and the
mere fact that the magistrate wrote the word, signature, instead of mark, or that he has
written the words "witness to the above signature" below the jurat, is a mere informality.
ten the words witness to the above signature below the jurat, is a mere informality. (Webb
v. State, 21 Ind. 237.)
The same is true as to the deposition of Lou Alexander, with the addition, that it does
appear from the record that the defendant did cross-examine this witness while on the witness
stand at the preliminary examination.
At common law the certificate of a public officer was not receivable in evidence. The
provision making the certificate of the justice admissible is founded upon the reason of
statutes authorizing proof of public documents by copies certified by the officer having their
custody. The reason of admitting a copy to be evidence is the inconvenience to the public of
removing records which may be wanted in two places at the same time. (1 Starkie, Ev.
*251.) And so it may be said, as one of the reasons for making the certificate of the justice
admissible, that inconvenience to the public would result by compelling his attendance as a
witness at a time when the duties of his office required his attention. The purpose of the
statute is to afford a reasonable and convenient method of proof. The statute does not in terms
exclude other evidence, and we see no reason why the common-law method of proof should
not be admitted. Statutes containing provisions similar to those of section 4036 have existed
for the last three hundred years in England, and have been generally adopted by the states of
this Union, and we are not aware that the established rules of decision of any court construes
them as abolishing the common-law mode of proof.
In the case of People v. Carty, 77 Cal. 214, upon the trial, the prosecution offered in
evidence the short-hand reporter's transcript of his notes, of the testimony taken before the
committing magistrate. The certificate attached to this transcript was to the effect that it was a
full, true, and correct transcript of the short-hand notes taken by me herein. One of the
objections on the trial was that the document was not properly certified. The reporter was
then permitted to be examined as a witness, and he testified that the document was a correct
transcript of the notes taken by him of the testimony and proceedings at the examination
before the magistrate. The supreme court held that the document was not admissible, not
because the reporter was sworn as a witness to correct his certificate, but because, after he
was placed upon the stand, he did not refresh his memory from the writing, and then testify
as to what occurred at the examination, and that the notes as taken by him at such
examination were correct.
his memory from the writing, and then testify as to what occurred at the examination, and that
the notes as taken by him at such examination were correct. He having merely testified as to
the correctness of the transcribing, this was no sufficient.
In the case of People v. Dowdigan, 67 Mich. 96, where the reading of a deposition to the
jury was objected to on the grounds that the same had not been read over to the subscribing
witness, the defendant was permitted to place the justice on the stand as a witness to try and
establish the fact, but he could not swear whether it had been read over to her or not, yet the
deposition was admitted. In England it is the custom that when a party signs his name to a
deposition taken before a magistrate in a criminal prosecution the proof of the signature may
be given by any one that was present at the time of such examination; but when the party
signs the deposition with his mark, it must be proved that the deposition was correctly read to
the witness, which proof must be made by the magistrate or his clerk. (Rex v. Chappel, 1
Moody & Robinson 395.)
In the case of State v. Jones, 7 Nev. 415, the court said: When a deposition is offered, it is
true, the person offering it should accompany it with proof that it was taken in conformity
with the statute; and, if the proper objection be made, it should not be admitted until such
preliminary proof is made; meaning thereby that if the committing magistrate had not
attached his certificate to the deposition, that the state could have the same corrected, or the
prosecution might place witnesses upon the stand to show that the law had been complied
with.
In Texas, where the statute in relation to the taking of depositions on preliminary
examinations is similar to our own, in the case of Clark v. State, the supreme court said: In
our opinion there is no merit in defendant's third and fourth bills of exception relative to the
reproduction of the testimony of C. W. Churchwell, which had been reduced to writing upon
the examining trial, the witness having subsequently died. The justice of the peace was
properly permitted to state the circumstances attending upon the taking of the deceased
witness' testimony, and to identify the same. (28 Tex. App. 195.)
In the case of Farnsworth Co. v. Rand, 65 Me. 21, the defendant had levied on property of
the plaintiff. The statute of Maine required that the collector should take the oath of a
collector. There was no record evidence that the defendant had taken such oath, although he
had been sworn in as a constable.
taken such oath, although he had been sworn in as a constable. The court held that in the
absence of record evidence parol proof was competent, to prove that the oath had been taken
by defendant, before making the levy.
In the case of People v. Moore, 15 Wend. 421, the justice of the peace was permitted to go
upon the stand and testify as to statements made in his court, which statements had been
reduced to writing. The defendant then offered to introduce the deposition taken on the
examination. The district attorney objected to its introduction, for the reason that it did not
appear to have been correctly taken. The justice testified that the deposition was taken in
pursuance of the statute, but whether it was read to the witness or not he did not recollect.
The objection was sustained. On appeal to the supreme court the judgment was reversed, the
court saying: When the justice swears that the deposition was taken in pursuance of the
statute, the presumption is that it was regularly and properly taken. The law presumes every
public officer does his duty until the contrary appears. The deposition must therefore be
considered properly taken until some irregularity is shown. No particular form is prescribed
by law for the certificate of the magistrate to testimony taken before him on a preliminary
examination, and a substantial compliance with section 4036 is all that is required, and an
error or omission in the certificate can be cured by parol testimony. (Draper v. Snow, 20 N.
Y. 332.)
Objection is made to the admission in evidence of the testimony of Dr. Hanson, the
physician who attended the child during illness consequent upon the assault. The statute
provides that a licensed physician or surgeon shall not, without the consent of the patient, be
examined as a witness as to any information acquired in attending the patient which was
necessary to enable him to prescribe or act for the patient: (Section 3406, Gen. Stat. Nev.)
It is conceded, as shown by the record, that either the child or her mother could have given
the consent required by the statute. The consent may either be express or implied. Upon this
question the supreme court of the United States, in Blackburn v. Crawfords, 3 Wall. 194,
said: We think it [the consent] as effectual here by implication as the most explicit language
could have made it. It could have been no clearer if the client had expressly enjoined it upon
the attorney to give this testimony.
this testimony. * * * A different result would involve a perversion of the rule, inconsistent
with its object, and in direct conflict with the reason upon which it is founded. Applying
these principles, the facts of this case establish consent by implication.
In the present case the prosecution was inaugurated by the parents of the child. Her
stepfather laid the complaint before the justice. Her mother and herself were the principal
witnesses. The mother testified, among other things, to the statements of the child charging
the defendant with the commission of the offense, and to her physical condition, which led to
the calling of the physician. Her testimony was of a nature to make public all matters bearing
upon the injuries and sufferings of the child as affected by the defendant's acts. It practically
disclosed the general nature of the complaint for which the physician prescribed. If any injury
could be inflicted by testimony of this nature it was done by the mother's testimony, and, the
facts having once been exposed, it would seem that there was no reason why the physician's
knowledge should be treated as confidential. At all events, the facts stated show a disposition
on the part of the stepfather and the mother to prosecute the defendant, and in doing so to
waive the protection which the law gave to the confidential information acquired by the
physician. It is true, defendant's mother testified that the mother of the child declared she
would not again prosecute the defendant; but no other fact was disclosed tending to show
such a disposition. The testimony of the physician was introduced in evidence by the
prosecution before the defendant's mother testified in his behalf. The court, therefore, knew
nothing of the alleged disinclination to prosecute when the physician's testimony was
admitted, and no motion to strike it out was ever made.
In the case of McKinney v. Railroad Co., 104 N. Y. 354, on the first trial of the case, the
plaintiff called the physician who had attended her and treated her for the injuries received,
and he testified fully as to her injuries. On the second trial, after the plaintiff had closed her
case, not having placed the physician on the stand as a witness in her behalf, the defendant
called on Chapman, a physician, and proposed to prove by him the injuries claimed to have
been suffered by the plaintiff in consequence of the collision in question, as learned by him
upon a personal examination of the plaintiff when visiting her as a patient. "The plaintiff
objected, upon the grounds that the information acquired by a physician while attending
a patient was privileged, and could not, therefore, be admitted against the plaintiff
without her consent."
personal examination of the plaintiff when visiting her as a patient. The plaintiff objected,
upon the grounds that the information acquired by a physician while attending a patient was
privileged, and could not, therefore, be admitted against the plaintiff without her consent.
This objection was sustained, the evidence excluded, and the defendant excepted. Ruger, C.
J., speaking for the court, said: Such evidence is made incompetent at the option of the
patient only, and in case she neglects at any time to remove the seal from the lips of the
witness, the evidence may properly be received. * * * The patient cannot use this privilege
both as a sword and a shield, to waive when it inures to her advantage, and wield when it
does not. After its publication no further injury can be inflicted upon the rights and interests
which the statute was intended to protect, and there is no further reason for its enforcement.
The nature of the information is of such a character that when it is once divulged in legal
proceedings, it cannot be again hidden or concealed. It is then open to the consideration of the
entire public, and the privilege of forbidding its repetition is not conferred by the statute. The
consent having been once given and acted upon cannot be recalled, and the patient can never
be restored to the condition which the statute, from motives of public policy, has sought to
protect. * * * The object of the statute having been voluntarily defeated by the party for
whose benefit it was enacted, there can be no reason for its continued enforcement in such
cases. The judgment was reversed. (Johnson v. Johnson, 14 Wend. 641.)
In the case of Pierson v. People, 79 N. Y. 432, the defendant was charged with the crime
of murder, by poisoning one Withey. Dr. Coe, a practicing physician, was called to see him
by the prisoner; and he examined him and prescribed for him. On the trial the doctor was
called as a witness for the people, and the following question put to him: State the condition
in which you found Withey at that time, both from your own observation and from what he
told you. The prisoner's counsel objected to this question, on the ground that the information
which the witness obtained was obtained as a physician, and that he had no right to disclose
it; that the evidence offered was prohibited by the statute. The court overruled the objection,
and the witness testified as to the condition in which he found Withey from an examination
then openly made in the presence of Withey's wife and the prisoner, and as he also learned
it from Withey, his wife and the prisoner."
presence of Withey's wife and the prisoner, and as he also learned it from Withey, his wife
and the prisoner. (The court then quotes the statute of New York, which ours is copied
from.) Such evidence was not prohibited at common law. The design of the provision was to
place the information of the physician, obtained from his patient in a professional way,
substantially on the same footing with the information obtained by an attorney professionally
of his client's affair. The purpose was to enable a patient to make such disclosures to his
physician as to his ailments, under the seal of confidence, as would enable the physician
intelligently to prescribe for him, to invite confidence between physician and patient, and to
prevent a breach thereof. * * *
It could not have been designed to shut out such evidence as was here received, and thus to
protect the murderer rather than to shield the memory of his victim. If the construction of the
statute contended for by the prisoner's counsel must prevail it will be extremely difficult, if
not impossible, in most cases of murder by poisoning, to convict the murderer. Undoubtedly
such evidence has been generally received in this class of cases, and it has not been
understood among lawyers and judges to be within the prohibition of the statute. * * *
The plain purpose of this statute, as in substance before stated, was to enable a patient to
make known his condition to his physician without the danger of any disclosure by him,
which would annoy the feelings, damage the character, or impair the standing of the patient
while living, or disgrace his memory when dead * * * that the purpose for which the aid of
this statute is invoked, in this case, is so utterly foreign to the purposes and objects of the act,
and so diametrically opposed to any intention which the legislature can be supposed to have
had in the enactment, so contrary to and inconsistent with its spirit, which most clearly
intended to protect the patient, and not to shield one who is charged with his murder, that in
such a case the statute is not to be so construed as to be used as a weapon of defense to the
party so charged, instead of a protection to his victim. (1 Starkie, Ev. *40; Hewitt v. Prime,
21 Wend. 79; Renihan v. Dennin, 103 N. Y. 580.)
The objection of the defendant to the verdict of the jury is not tenable. It appears from the
record that when the jury returned into court, they were asked by the judge if they had
agreed upon a verdict."
agreed upon a verdict. They answered that they had, and at the same time the foreman
handed to the judge the paper upon which the verdict was written, who in turn handed it to
the clerk, with instructions to record the same, but instead thereof, the clerk filed the paper,
and read therefrom to the jury, and the clerk asked each of said jurors if that was their verdict
as read by him, and each of said jurors, answering for himself, said it was. Would a mere act
of making a copy of the verdict, in pencil writing, in the rough minutes of the court, make it
any more sacred? It is not claimed that the defendant was in any manner injured by the
receiving, filing, and reading of the verdict, and it is not claimed that the verdict as returned
by the jury is not the one upon which judgment has been pronounced by the court. (People v.
Gilbert, 57 Cal. 97.)
Section 4469, Gen. Stat., reads: Neither a departure from the form or mode prescribed by
this act, in respect to any pleadings or proceedings, nor an error or mistake therein, shall
render the same invalid, unless it have actually prejudiced the defendant, or tended to his
prejudice in respect to a substantial right.
The contention of appellant's counsel that the verdict is not sustained by the evidence, on
account of the absence of positive proof of penetration, is without merit.
Section 4244, Gen. Stat. reads: Proof of actual penetration into the body is sufficient to
sustain an indictment for rape. Under this statute we shall hold the slightest proof of the
commission of the offense will justify the judge in submitting the question of fact to the jury,
and no form of words are necessary to prove the commission of the crime. The proof,
therefore, can be inferred from circumstances, apart from the statements of the party injured.
The prosecuting witness testified as to the position occupied by the defendant at the time of
the commission of the offense, and it was such as to satisfy the minds of the jurors that the
crime of rape had been committed, and the physician by whom she was examined found
injuries upon her person which such an act might have occasioned. (Brauer v. State, 25 Wis.
415; People v. Crowley, 102 N. Y. 237; Taylor v. State, 111 Ind. 280; State v. Tarr, 28 Iowa
397; Bishop Stat. Crimes, Sec. 488.)
If the doctrines contended for by counsel for appellant should prevail, then the scoundrel
who attempted the chastity of a child or a young girl would escape punishment merely
because of her youth, preventing his fully consummating the crime, which appears to us,
as undesirable as it would be unjust.
of a child or a young girl would escape punishment merely because of her youth, preventing
his fully consummating the crime, which appears to us, as undesirable as it would be unjust.
In this case the circumstances prove the commission of the offense beyond a doubt; the
intent of the accused is fully proved by his acts; the jury so found. Judgment affirmed.
Bigelow, J., dissenting.
I am unable to agree with my learned associates in the conclusion reached by them in this
case.
If we are at liberty to consider the sufficiency of the evidence given upon the trial, it seems
open to grave question as to whether the defendant was proven guilty, beyond reasonable
doubt, of the crime of which he has been convicted. It seems to me that the evidence, as
reported, preponderates so greatly against the verdict, that it must have been the result of
passion or prejudice.
The defendant was charged with a most heinous offense; one that would naturally arouse
the indignant feelings of a community to such an extent as to render it quite probable that they
were communicated to the jury, and secured a conviction upon evidence that would have been
entirely insufficient in other cases. Lord Hale's remark, that such an accusation is one easily
made, hard to prove, and still harder to be defended by one ever so innocent, has been often
repeated, and acted upon, since, by courts all over the land. Iowa has found it necessary to
enact a law, forbidding a conviction for the crime of rape upon the testimony of the
prosecutrix alone. (State v. McLaughlin, 44 Iowa 82.) In Gazley v. State, 17 Tex. App. 267, a
conviction upon testimony strikingly like that given in this case, was reversed as against the
evidence. The opinion also shows how little reliance should be placed upon medical
testimony, such as was given in the case at bar. Other courts have often set aside verdicts in
rape cases upon similar grounds. (People v. Benson, 6 Cal. 22; People v. Hamilton, 46 Cal.
540; People v. Brown, 47 Id. 447; People v. Ardaga, 51 Id. 371; People v. Hulse, 3 Hill 309;
Mathews v. State, 19 Nev. 330; State v. Spidle, 22 Pac. Rep. 620; State v. Burgdorf, 53 Mo.
65, and numerous others.)
Judging from the evidence, the child's associations had not been such as were likely to
leave her mind as innocent of all knowledge of such things as we generally expect
children of her age to be.
been such as were likely to leave her mind as innocent of all knowledge of such things as we
generally expect children of her age to be. She testifies that the assault was committed in her
mother's home, on Thursday, the 20th day of June, 1889; and that before they had time to
adjust their clothing, the mother returned and was let in by the girl. There seems to have been
nothing, however, to arouse the mother's suspicions of anything wrong, and she had none.
The prosecutrix made no complaint, and showed no signs of injury, until two days thereafter,
when she complained of being chafed, which was attended to by the mother. The next day she
complained more, and walked in a peculiar manner, but did not know what was the matter
with her, and made no complaint of ill-usage. Ten days thereafter a physician was called, who
determined that she was suffering with the gonorrhea. Some time after this she charged this
offense upon the defendant, who was her mother's brother. No attempt, however, was made to
prosecute him, until August 4th, when her stepfather swore to a complaint in the justice court,
and he was arrested. Upon the preliminary examination her testimony was taken briefly, in
answer to the most leading questions by the district attorney. The defendant was
unrepresented by counsel, and there was no cross-examination; nor was any attempt made by
any one to ascertain her competency as a witness, within Gen. Stat. Sec. 3402. The only
evidence tending to corroborate her in the slightest degree was that of the physician, who
testified that he found the vagina unnaturally distended, and was of the opinion that she had
the gonorrhea; that this distension might happen from other causes than sexual connection;
and that he made no microscopic examination to determine whether she had the disease
mentioned.
The defendant's counsel contends that this, at most, shows only an attempt to commit rape,
and I feel justified in saying that this contention is fully borne out by the evidence. The girl
does not testify to anything more than an attempt, and the circumstances are conclusive that
this attempt, if made, was not successful. That a full-grown man could succeed in penetrating
the body of a child of that age, and there be no cries or tears, no complaints, and no signs of
distress, is, it seems to me, contrary to both reason and experience. It is incredible that she
would not cry out from the pain that would inevitably be inflicted by such violence, and
exhibit some signs of suffering that could not be concealed.
inflicted by such violence, and exhibit some signs of suffering that could not be concealed.
The medical authorities agree that in such a case there would be great laceration, a flow of
blood, and much pain and suffering produced upon the victim. (3 Whart. & S. Med. Jur. Secs.
219, 220.) The evidence in Burk v. State, 8 Tex. App. 336, shows what could be expected in
such a case. A full and complete connection between an adult male and a child under twelve
years of age is, on the first attempt, manifestly impossible, (3 Whart. & S. Med. Jur. Sec.
218,) and it must be still more impossible with a child only seven.
The testimony of the physician concerning the child's diseased condition, while doubtless
going very far with the jury, was really entitled to but very little weight, for the reasons: (1) It
was not shown that the defendant had the gonorrheaa most important consideration. (2)
The disease might have been communicated to her by some other person, or in some other
manner than by sexual intercourse. (3 Whart. & S. Med. Jur. Sec. 222.) (3) Other diseases
could easily be mistaken for gonorrhea. Upon this last point, in section 223 of the last quoted
authors, it is said: Leucorrhoea and gangrenous inflammation of the vulva are diseases
which often arise spontaneously in young children, especially of the poorer class, and are due
to bad diet, uncleanliness, scrofulous taint, and epidemic influences. In the minds of anxious
relatives they may awaken suspicions of violence with intent to commit rape, and sometimes
form the occasion for criminal prosecutions against innocent persons, for the sake of gain.
Leucorrhoea may be easily mistaken for gonorrhea, for the discharge in the two diseases is
nearly similar, and the local symptoms are so much alike as to render a positive opinion in
legal cases, rather hazardous. And again (section 227): Within the last few weeks a child of
nine years of age was brought to me, upon whom it was suspected that violence had been
inflicted. A careful examination afforded evidence that the case was simply one of vaginitis.
There was complete absence of any indication of violence, for, although it can scarcely be
believed to be possible that sexual entrance into the vagina of an infant, could, under any
circumstances, be perpetrated, yet in the attempt much contusion of the young and delicate
soft parts must have ensued, had it been made. Many instances of this kind are given in the
books, where the parents' erroneous suspicions have even been confirmed by the hasty
and ill-considered opinions of physicians, given without making a proper examination.
where the parents' erroneous suspicions have even been confirmed by the hasty and
ill-considered opinions of physicians, given without making a proper examination. Cases are
by no means rare, where the necessity of accounting for the contraction of what was supposed
to be venereal disease, has, under the persistent questioning and threats of anxious relatives,
led the child into accusing some wholly innocent person of tampering with her. (3 Whart. &
S. Med. Jur. Sec. 229.)
Quite possibly this was the case here. It was only after the physician was called, and he
had pronounced the disease gonorrhea, that the accusation was made against the defendant,
and, apparently, not for some days after this. The necessity then existed of accusing some
one, and it is quite evident that had it not been for this necessity, the assault, if it was really
made, would never have been made known by the child. The admission of the stepfather's
affidavit made in the justice court, showing that he believed the defendant guilty, was very
prejudicial to his case, although its admission, as against the objections urged, was probably
not error. The same may be said of the evidence concerning the particulars of the assault, as
related by Bertha to her mother, when she finally accused the defendant of the offense. Such
statements were mere hearsay, and their admission was considered sufficient to call for the
reversal of a conviction for the same kind of an offense in State v. Campbell, 20 Nev. 122,
and doubtless would have worked the same result here, had the testimony been particularly
objected to. But, although it was not, and consequently its admission was not error, it was
equally as prejudicial to him as though it had been admitted against his most strenuous
opposition, and probably goes far towards accounting for the verdict. For these reasons I think
the conviction should be set aside as contrary to the evidence.
I agree that under the great weight of authority construing statutes similar to our own, the
depositions taken upon the preliminary examination were sufficiently proven to admit them
as evidence in the case. The authentication required by Gen. Stat. Sec. 4036, seems to be the
signing by the witness and testing by the magistrate, as previously provided for in the section,
and which had been done here. For the same reason, the oral testimony showing that the
witnesses were examined in the presence of the defendant, etc., was properly admitted.
Dr. Hanson's testimony should not have been received.
Section 4576, Gen. Stat., makes the rules for determining the competency of witnesses in
civil cases applicable to criminal cases. Section 3406 provides: A licensed physician or
surgeon shall not, without the consent of his patient, be examined as a witness as to any
information acquired in attending the patient, which was necessary to enable him to prescribe
or act for the patient. The information concerning which he must not be examined, includes
not only knowledge received from the lips of the patient, but also from the statements of
others who surround him at the time, or from observation of his appearance or condition.
(Grattan v. Metropolitan Co., 80 N. Y. 297.)
The intent of the statute in making such information privileged, was to enable a patient to
make known his condition to his physician without the danger of any disclosure by him,
which would annoy the feelings, damage the character, or impair the standing of the patient
while living or disgrace his memory when dead. (Pierson v. People, 79 N. Y. 434.)
But notwithstanding the quotations made by my associates from the opinions in Pierson v.
People, supra, in which it was held that the New York statute, of which ours is a substantial
copy, did not apply to a case of murder by poisoning, and that consequently the physician's
testimony was admissible, I do not understand them to hold that the statute is not applicable
here, but that the ruling in admitting the testimony is sustained upon the ground that such
consent to the physician's testifying had been given, as made it competent.
The statute reads that the physician shall not without the consent of his patient, be
examined as a witness, etc.
There is no pretense here that the patient had given this consent, but its admissibility is
placed upon the ground that the patient's parents, stepfather and mother, have given implied
consent to his testifying, and this, of course, must necessarily assume that the parents have the
power to give the required consent, and to waive, for their children, the protection of the
statute.
But that they do not have this power seems to me reasonably clear from both the letter and
spirit of the statute. It does not say that the physician's testimony shall not be admitted
without the consent of the patient, or his parents or guardian, or executor or administrator, but
the patient alone is mentioned.
If it be objected that under such construction his testimony would always be lost where the
patient was too young to give consent or was insane or dead, it may be replied that this is just
what the statute was intended to do. It intended to place the information so obtained upon the
same footing as communications between husband and wife, communications to an attorney,
or confessions to a clergyman or priest. Such evidence is always to be incompetent, except in
the single instance of where the party in whose interest it is excluded, is able to, and does,
give his free consent to its divulgence.
In Westover v. Insurance Co., 99 N. Y. 56, the action was brought upon a life insurance
policy issued to the plaintiff's testator. Upon the trial the plaintiff called a physician who had
attended the deceased during his life-time, and asked him certain questions concerning the
condition in which he had found him. To this the defendant, the insurance company, objected
that the evidence was incompetent and privileged under the statute. This of course, raised the
question whether, the patient being dead, his executor could give the consent necessary to
authorize its admission, and it was held he could not. In the course of the opinion the court
says: There does not seem to be left any room for construction. The sections are absolute and
unqualified. These provisions of law are founded upon public policy, and in all cases where
they apply, the seal of the law must remain until it is removed by the person confessing, or the
patient or client. * * * Whenever the evidence comes within the purview of the statutes, it is
absolutely prohibited, and may be objected to by any one unless it be waived by the person
for whose benefit and protection the statutes were enacted.
Nor do I understand that it has been conceded by any one that the mother could have given
the consent required by the statute. Certainly, to my mind, it has not been done by the
defendant or his counsel.
But admitting that the parents could give the required consent, the next question is,
whether they have done so.
That there may be implied, as well as express, consent, there can be no doubt, but the
evidence of this implied consent or waiver, must be distinct and unequivocal. (1 Whart. Ev.
Sec. 584; Hageman Priv. Com. Sec. 151; Westover v. Insurance Co., 99 N. Y. 59.)
It is supposed that the evidence shows a determination by the parents of the child to
prosecute the defendant, and that consequently they intended to waive the protection of the
statute for the child. Admit the premises, and the conclusion does not by any means follow.
There is no logical connection between them. If this is to be the rule, then in a case where it is
supposed the evidence shows that the party to make the waiver does not desire the defendant
prosecuted, then it must be presumed that he has not consented. Before we can even speculate
upon such a state of facts, we must know how strong the desire for the defendant's conviction
or acquittal is, how much or how little they cared for the physician's knowledge being made
public, and all the other considerations that might influence them. It is sufficient to say that
this would be no rule at all for the admission or rejection of evidence, and is entirely
inadmissible. Nor does the fact that the mother appeared and testified upon the preliminary
examination to the daughter's ailments constitute any such waiver, or consent. She appeared
the same as other witnesses presumably in obedience to a subpoenaand it was not a matter
of choice with her whether she would testify or not. If asked the questions, she must answer.
It seems like going a good ways to hold that because she was compelled to testify, therefore
her testimony constitutes implied consent to the physician making public the information
obtained by him. Nothing ought to constitute implied consent that is not voluntary. But again,
the testimony of the mother did not make public the information of the physician. She did not
pretend to know what was the matter with the child, and the symptoms she described might
have come from a dozen other sources than venereal disease. She supposed for some time
that she was simply chafed. To my mind, even the assumption that, at the time of the trial in
the district court, when the physician's testimony was admitted, either the child or her parents
wished to prosecute the defendant, is not supported by the evidence. It is founded upon the
circumstances of the stepfather having made the complaint in the justice's court, and that the
mother and the child had appeared and testified upon the hearing. Weak as this foundation is,
it is further weakened by the uncontradicted evidence of two witnesses that before the trial
they had taken back much they had said against the defendant in the depositions, declared
they had only so testified because of the threats and promises of Joseph Alexander, the
stepfather, and that they would never testify against him again.
sitions, declared they had only so testified because of the threats and promises of Joseph
Alexander, the stepfather, and that they would never testify against him again. That this was
their feeling towards him, is further borne out by the fact that neither of them was present at
the trial. If the stepfather ever had any right to consent for the girl, it was certainly lost when
her own father appeared and took possession and control of her, as he had already done. But
in my judgment the whole theory of implying consent from any such premises is wrong.
While it may be implied as well as expressed, the implication should be based upon
substantial, clear and unequivocal grounds, such as do not exist here. (See People v. Murphy,
101 N. Y. 126; People v. Stout, 3 Park. Crim. R. 670.)
If the evidence of physicians ought to be received in rape cases or in criminal cases, the
remedy is with the legislature. As said in Renihan v. Dennin, 103 N. Y. 580: It is probably
true that the statute as we feel obliged to construe it, will work considerable mischief. In
testamentary cases, where the contest relates to the competency of the testator, it will exclude
the evidence of physicians, which is generally the most important and decisive. * * * But the
remedy is with the legislature, and not with the courts.
But the truth is, there is just as much reason for excluding such evidence in criminal cases
as in any other. The inevitable result of the statute is to exclude evidence that would often be
of the highest importance, but as a matter of public policy it is considered better that such
testimony should be lost, than that the confidence which ought to exist between priest and
penitent, lawyer and client, and physician and patient, should be destroyed by the knowledge
that they may be compelled to divulge the information so obtained from those who have
placed trust in them.
The minutes of the court show that after the jury was impaneled and sworn, the defendant's
plea of not guilty was entered, and they do not show that he had ever pleaded prior to that
time; but, believing that the conviction should be reversed for the foregoing reasons, I have
not considered this point, nor the one concerning the verdict.
____________
21 Nev. 127, 127 (1891) Haley v. Eureka County Bank
[No. 1325.]
THOMAS E. HALEY, Appellant, v. EUREKA COUNTY
BANK et als. Respondents.
PracticeDefaultProof may be Required Before Judgment.In all cases, other than those for the recovery of
money or damages only, when a default has been entered the plaintiff must apply to the court for the relief
prayed for in his complaint, and it is not error for the court to demand additional proof as a condition
precedent to giving judgment.
IdemNotice of Motion to DismissFictitious Controversy.No notice of motion is necessary before an
amicus curiae moves to dismiss an action on the ground that it is fictitious and collusive. Whenever facts
are placed before a court which cause any suspicion that there is any collusion between the parties, no
matter in what way or form the facts are brought to the knowledge of the court, it is the duty of the judge to
at once institute such an examination as will satisfy him of the truth or the falsity of the charge.
IdemFictitious SuitDismissal on Motion.Defendants purchased property and organized a company, of
which they elected plaintiff secretary. Afterwards, to settle their title to the property, they transferred the
title thereto to plaintiff, and had him to sue them for its conversion, agreeing in advance to submit to a
judgment against them by default, after which plaintiff was to re-transfer to them all of his legal rights to
the property. Defendants retained and paid plaintiff's attorney for bringing the suit and plaintiff paid
nothing for the property. Plaintiff in course of the suit claimed that it was not fictitious but was hostile to
the defendants. Held, that on motion of defendant's counsel acting as amicus curiae, and the motion being
supported by affidavits, the action was properly dismissed as fictitious.
IdemDismissal after Assignment of Judgment by Default.A fictitious suit may be dismissed after the
assignment of the judgment by default, since there could be no rights under such a judgment to assign.
IdemPrivileged Communications.Communications made to an attorney by parties, when he is acting for
them mutually, are not privileged in an action between such parties concerning the subject matter of the
communications.
IdemDismissal Without Jury Trial.A party cannot complain on appeal, that without a waiver on his part a
jury trial was not allowed him, when the record does not show that he demanded a jury.
Bigelow, J., dissenting.
The facts sufficiently appear in the opinion, taken in connection with the facts appearing in
Haley v. Eureka Bank et als., in 20 Nev. 410.
Wren & Cheney, for Appellant.
I. The court erred in denying plaintiff's application for judgment on the pleadings. This
action is not governed by the section of the statute relating to the entry of judgments upon
failure to answer. The respondents had filed a general demurrer, and within the meaning of
the statute, in reference to judgment by default, the demurrer was an answer. (Oliphant v.
Whitney, 34 Cal. 27; Winters v. Winters, 8 Nev. 129, 136.)
II. The motion for judgment should have been granted, even if the statute in relation to
entry of judgments by default is applicable. A default conclusively admits every material
allegation of the complaint and authorizes the court to render any judgment in accordance
with the admitted facts. (Ewing v. Jennings, 15 Nev. 382; Burling v. Goodman, 1 Nev. 317;
Hutchings v. Ebeler, 46 Cal. 557; Himmelmann v. Spanagel, 39 Cal. 401; Harding v.
Cowing, 28 Cal. 212; Curtis v. Herrick, 14 Cal. 117; Harlan v. Smith, 6 Cal. 173.) The
allegation of the value of personal property, in an action of conversion, is a material
allegation, and is admitted by failure to answer. (Hixon v. Pixley, 15 Nev. 475; Blackie v.
Cooney, 8 Nev. 41; Carlyon v. Lannon, 4 Nev. 156.) The common law rule that value of
property in an action for damages was not a material fact admitted by default has been
changed by the code definition of a material allegation. (Gen. Stat. of Nev. Secs. 3087, 3088;
Tucker v. Parks, 1 Pac. Rep. 427; Tucker v. Parks, 3 Pac. Rep. 486.) A finding of damages,
based upon an admission of the parties by their pleadings, is no less an assessment than if
made upon conflicting evidence. (Patterson v. Ely, 19 Cal. 28, 40; Carlyon v. Lannon, 4 Nev.
160.) The value of the property is the material fact; the allegation of damages is not essential.
(Ryan v. Hurley, 119 Ind. 115; Woods v. Berry, 14 Pac. Rep. 758.)
III. The court erred in entertaining the motion and dismissing the cause without notice or
time being given. The rule of court was not complied with. The penalty for a violation of the
rule is provided in the rule, viz: For a failure to comply with this rule, the motion shall be
denied."
with this rule, the motion shall be denied. (District Court Rule X.)
IV. The court erred in permitting defendant's attorney to appear and make and argue the
motion to dismiss in the capacity of amicus curiae. It is not the function of an amicus curiae
to take upon himself the management of a cause. (Taft v. Trans. Co., 56 N. H. 416.)
V. The court erred in admitting evidence to establish that this action is false, fictitious and
fraudulent. It is the law of this case that it is neither false, fictitious nor fraudulent. This court
upon the former appeal, considering the appeal upon its merits, evidently determined that the
suit was not fictitious.
VI. The court erred in granting the motion to dismiss. The plaintiff has an adverse, older
and better title to the property than the defendants. This title is neither false, fictitious nor
simulated. It is actual, valid and paramount. Even if the plaintiff is the trustee of defendants,
the issue is none the less real, and the suit was certainly not collusive or feigned as to the
Eureka Bank. Even if the action in its inception was friendly, there can be no question that it
since became far from being collusive or feigned. Motions must be decided upon the case as
it exists when the motion is made. Motions to dismiss are no exception. (Cleveland v.
Chamberlain, 1 Black. 419.) What makes a case fictitious, within the meaning of the rule, is
that the parties are, by collusion, attempting in advance of any real litigation, to obtain the
opinion of the court upon a question of law, which will become a precedent, and thus
adjudicate the rights of other parties having interests depending upon the legal question thus
sought to be determined. (State v. McCullough, 20 Nev. 154; Lord v. Veazie, 8 How. 251;
Cleveland v. Chamberlain, 1 Black. 419; Bartemeyer v. Iowa, 18 Wall. 129.)
VII. From the testimony of all the parties interested in this action it plainly appears that
the only defense that the defendants could make, if the default had been set aside, is that the
plaintiff is not the owner of the property or entitled to recover by reason of the means and
manner by which he obtained title to the property. Upon that issue the plaintiff is entitled to a
trial by jury. We submit, there is neither principle nor precedent which justifies the dismissal
of an action as fictitious, when the facts, which it is claimed make the action fictitious, are
controverted by the adverse party to the action, and constitute the only defense which
could be made upon a trial of the action.
controverted by the adverse party to the action, and constitute the only defense which could
be made upon a trial of the action. The court below, in substance, set aside the default and
heard and determined the defendant's answer in their favor.
VIII. It is without precedent for a court to find facts and conclusions of law and enter a
judgment upon the merits, upon granting a motion of this nature. (Gilson Q. M. Co. v. Gilson,
47 Cal. 597; Wood v. Raymond, 42 Cal. 643.) The findings are against the facts admitted by
the pleadings, and are therefore findings against the evidence, and the judgment entered
thereon is erroneous. (Campe v. Lassen, 67 Cal. 139; Silvey v. Neary, 59 Cal. 97.)
Baker & Wines, for Respondents.
I. A clerk can enter a judgment by default where the allegations in the complaint must be
literally followed, and the exercise of no judgment or discretion is required. In other actions it
is the duty of the plaintiff to apply to the court for the relief demanded in his complaint, and
in such cases the court may hear the proof, or it may in its discretion order a reference for that
purpose. (Ballard v. Purcell, 1 Nev. 342.)
II. The court did not err in dismissing the action, for the reasons stated in its findings of
fact and conclusions of law. The authorities are numerous to the effect that it is always proper
for any person who is in possession of the facts, which show that an action, apparently bona
fide and contested in good faith, is simply colorable and simulated, and that the issues
involved are feigned issues, and prosecuted for some ulterior motives than those apparent
upon the facts of the proceedings. (Brewington v. Lowe, 1 Ind. 23; Smith v. Junction Railway
Co., 29 Ind. 550; Lord v. Veazie, 8 How. 255, 256; State v. McCullough, 20 Nev. 154;
Cleveland v. Chamberlain, 1 Blackf. 419; People v. Pratt, 30 Cal. 223.)
This case came before this court on appeal from an order of the district court, setting aside
the default of the defendants. The order was reversed and the cause remanded. (20 Nev. 410.)
It is unnecessary to repeat the history of the case here.
On the return of the case to the district court, the plaintiff, by his attorney, appeared in
court and asked for judgment on the pleadings, for the full amount prayed for in the
complaint, no answer having been filed; which motion was by the court denied, on the ground
that the plaintiff was not entitled to a judgment without proof of the value of the property
alleged to have been converted.
In an action arising upon contract, for the recovery of money or damages only, a default
and final judgment may be entered by the clerk. In all other cases the plaintiff must apply to
the court for the relief prayed for in his complaint, and when he does so the court may require
additional proof, and it is not error for the court to refuse to enter judgment on the pleadings
alone, and the proof must be made when demanded. (Parker v. Wardner, 13 Pac. Rep. 173.)
G. W. Baker, as an officer of the court, and as amicus curiae, submitted a written motion
to the court, to dismiss the action as to all the defendants, except the Eureka County Bank,
upon the ground and for the reason that the same was and is a sham action, colorably
instituted between the plaintiff and the defendants Sadler, Torre, Barbieri, and the Nevada
Stage & Transportation Company, without any intention of ever determining any dispute, or
litigating any question, or ever having any adversary trial, but simply to obtain the judgment
and decision of the court upon a feigned issue, which might affect other parties not
impleaded; and that said action between the parties last above mentioned was amicably
instituted, without any real dispute between them, and their interest in the question when the
said suit was brought was one and the same, and not adverse. That in these proceedings the
plaintiff and said defendants mentioned were seeking to secure such a judgment to be entered
as might result to the advantage of the defendants, with reference to the title of the property
mentioned in the complaint, and adversely to the interest of other parties not before the court,
and who had no knowledge of the suit, and no opportunity to be heard, and have any interest
they might have in the subject matter of the suit determined. That the attorney for the
plaintiff, who brought the action for the defendants last above mentioned, was employed and
paid by them, and such suit was simply a scheme to in some way obtain a judgment of the
court upon a feigned issue, which it was conceived might be of advantage to the
defendants, and for which purpose the plaintiff permitted his name to be used in
instituting the same."
be of advantage to the defendants, and for which purpose the plaintiff permitted his name to
be used in instituting the same. In support of this motion, the amicus curiae offered the
affidavits of Sadler and Rives, and it was stipulated between the parties that the testimony
taken on the hearing of the motion to open the default, should be considered admitted as
evidence on the hearing of this motion, in so far as the same was applicable.
The plaintiff objected to the consideration of the motion, upon the ground that the same
had not been noticed.
The court permitted the motion and affidavits to be filed, and informed the plaintiff that he
might have all the time he required to prepare counter-affidavits and argue said motion. The
plaintiff denied the right of counsel to make the motion, and excepted to the ruling of the
court.
The objection of the plaintiff to the filing and hearing of the motion to dismiss, on the
ground that the same was not noticed, is without merit: (1) Because upon the reading and
filing of the motion the court informed counsel for plaintiff, that they should have all the time
they desired to file counter-affidavits and argue the motion, which offer they declined to avail
themselves of, but stipulated that the affidavits, submitted to the court on the consideration of
the motion to open up the default, on the former hearing of this case, should be admitted as
the evidence on this motion, in so far as the same was pertinent to the question submitted for
decision. And (2) a motion of this character is in the nature of a suggestion to the court, that
the action then pending is not a real, but a fictitious one, to obtain a judgment of the court, not
upon any issue then involved between the parties to the action, but that might be used by
either the plaintiff or the defendants, against strangers to the action who might thereafter
come in and claim an interest in the property sued for.
When actions are brought in a court of law, a duty devolves upon the judge, and that is,
scrupulously to guard its proceedings from being used by the parties collusively, and not
suffer a judgment to be entered without being fully satisfied that a cause of action really
exists, as provided for by law.
Whenever facts are placed before a court, which cause any suspicion that there is any
collusion between the parties, no matter in what way or form, the facts are brought to the
knowledge of the court, it is the duty of the judge at once to institute such an
examination as will satisfy him of the truth or falsity of the charge.
edge of the court, it is the duty of the judge at once to institute such an examination as will
satisfy him of the truth or falsity of the charge.
There are many circumstances connected with this case, which certainly give a strange
appearance to the mode in which this action was commenced and has been prosecuted,
sufficient, in our opinion, to sustain the order of dismissal. It appears from the uncontradicted
testimony that one Townshend had a contract from the government of the United States for
the transportation of the United States mail from Eureka, in Eureka county, to Pioche, in
Lincoln county, all in this state. He was in possession of horses, wagons, and harness
sufficient to stock the route. R. Sadler and John Torre were his bondsmen. Townshend
became indebted to the Eureka County Bank in the sum of four thousand eight hundred
dollars, to Torre, Sadler, and Barbieri in the sum of two thousand dollars, and there was still
due to the Utah, Nevada & California Stage Company the sum of two thousand dollars,
balance of purchase money for the stock on the road; making a total indebtedness of eight
thousand eight hundred dollars. The Eureka County Bank, insisting upon the payment of its
claim, Townshend, on the 11th day of March, 1887, sold and delivered to the bank all the
property used in transporting said mail, and his interest in the said contract with the
government. That the said Sadler, Torre, and Barbieri, in order to protect themselves from
loss, upon the failure of the parties to carry said mail in accordance with the contract for
which they were bondsmen, with the knowledge and consent of Townshend, purchased the
property and contract from the Eureka County Bank, paying therefor the sum of four thousand
eight hundred dollars. They also assumed the indebtedness due from Townshend to the Utah,
Nevada & California Stage Company.
That after the purchase of said property by Sadler, Torre, and Barbieri, they organized the
Nevada Stage Transportation Company, and they subscribed for and owned all the stock. That
in order to qualify Thomas E. Haley, the parties above named gratuitously transferred to him
twenty-five shares of the capital stock of said company, and made him secretary thereof. The
Utah, Nevada & California Stage Company, setting up its claim to the property, R. Sadler
purchased all the right, title and interest of the said Utah, Nevada & California Stage
Company, for himself, Torre, Barbieri and the Nevada Stage and Transportation Company,
agreeing to give notes signed by himself, Torre and Barbieri for the sum of two thousand
dollars.
for himself, Torre, Barbieri and the Nevada Stage and Transportation Company, agreeing to
give notes signed by himself, Torre and Barbieri for the sum of two thousand dollars. When
the time came for the giving of said notes, Torre was absent from Eureka, and the notes of
Sadler, Haley and Jackson were offered in lieu thereof; but the same were not accepted by the
company, and they were returned to the makers thereof, and the notes of Sadler, Torre and
Barbieri were made, and accepted by the company, and, through the advice of Henry Rives,
the title of the Utah, Nevada & California Stage Company was taken in the name of Haley,
for the purpose of commencing a suit and clearing the title to the property, which was to be
done for the use and benefit of Sadler, Torre and Barbieri, and the Nevada Stage &
Transportation Company, but that the said Haley never bargained for, purchased, or paid one
dollar for said property, and only received the legal title to said property at the request of
Sadler, and with the express understanding and agreement, that he was in all things to be
governed by the advice of the said Henry Rives, and that, if a suit was to be instituted, it was
to be conducted in a friendly manner, and under the control of the defendants, and in their
interests, and, when the title thereto was settled, to convey all of said property to the said
Sadler, Torre and Barbieri, or to any person whom they might designate.
This suit was commenced by the plaintiff while he was acting as secretary of a
corporation, against the corporation and three of the stockholders. The defendants, Sadler,
Torre and Barbieri employed and paid the fees of the attorney for the plaintiff and all the
costs of court.
Haley testified, and denied that there was any agreement between himself, Sadler, Torre,
and Barbieri, that a judgment should not be taken against the defendants, Sadler, Torre, and
Barbieri and the Nevada Stage & Transportation Company; or that the suit should be a
friendly one, and should inure to the use and benefit of the defendants above named. He
admits that Sadler first spoke to him about purchasing the title of the Utah, Nevada &
California Stage Company; admits the giving of the notes of Sadler, his own and Jackson's,
and the return of them to him; admits that he never paid any money whatever for the property,
but says he expected to pay his notes. But they were returned to him, and Sadler, Torre, and
Barbieri gave notes, and paid them as they became due.
him, and Sadler, Torre, and Barbieri gave notes, and paid them as they became due. They had
prior thereto paid the Eureka County Bank the sum of four thousand eight hundred dollars,
and had been in possession of all the property.
The evidence was sufficient to satisfy the court that there was collusion between the
plaintiff and the three defendants named, and that the action was not commenced for the
purpose of settling any real controversy then existing between the parties.
In the case of Brewington v. Lowe, 1 Ind. 23, the supreme court said: We think these
proceedings were instituted under a mistaken apprehension of the proper functions of the
judiciary. Courts of justice are established to try questions pertaining to the rights of
individuals. An action is the form of a suit given by law for the recovery of that which is one's
due, or a legal demand of one's rights. * * * Indeed, it is well settled that courts will not take
cognizance of fictitious suits, instituted merely to obtain judicial opinions upon points of
law.
In the case of Loughead v. Bartholomew, reported in Wright, (Ohio) 91, Lane, J., said:
Courts are instituted to try questions pertaining to the real interests of individuals; to settle
substantial controversies; to preserve the peace of society, and where questions submitted to
their action are merely questions of speculation, and where their discussion is contra bonos
mores, or against public policy, or where the inquiry tends to cast ridicule upon the court, or
where the investigation is palpably injurious to the interests or feelings of third persons,
without affecting the substantial rights of the litigants, some means will be found to arrest the
inquiry.
In the case of Lord v. Veazie, 8 How. 255, Taney, C. J., said: It is the office of courts of
justice to decide the rights of persons and of property, when the persons interested cannot
adjust them by agreement between themselvesand to do this upon the full hearing of both
parties. And any attempt, by a mere colorable dispute, to obtain the opinion of the court upon
a question of law which a party desires to know for his own interest or his own purposes,
when there is no real and substantial controversy between those who appear as adverse parties
to the suit, is an abuse which courts of justice have always reprehended, and treated as
punishable contempt of court. * * * The objection in the case before us is, not that the
proceedings were amicable, but that there is no real conflict of interest between them;
and that the plaintiff and defendant have the same interest, and that interest adverse and
in conflict with the interest of third persons.
that the proceedings were amicable, but that there is no real conflict of interest between them;
and that the plaintiff and defendant have the same interest, and that interest adverse and in
conflict with the interest of third persons. * * * A judgment entered under such
circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt
of the court, and highly reprehensible, and the learned district judge, who was then holding
the court, undoubtedly suffered the judgment pro forma to be entered under the impression
that there was in fact a controversy between the plaintiff and defendant, and that they were
proceeding to obtain a decision upon a disputed question of law, in which they had adverse
interests. A judgment in form, thus procured, in the eye of the law is no judgment of the
court. It is a nullity, and no writ of error will lie upon it. This writ is therefore dismissed.
In Smith v. Railroad Co., 29 Ind. 546, a fictitious name was used for plaintiff in the action.
The testimony shows that the name of Smith, instead of Reeder, was more by accident than
intentional. But the court did not dismiss the appeal on that ground, but that the interests of
Reeder and the railroad company were not antagonistic, and the decision was intended to
affect third [s] persons. (See, also, Hotchkiss v. Jones, 4 Ind. 260.) The case of Cleveland v.
Chamberlain, 1 Black 425, was a real action. The plaintiff had judgment. Thereafter
defendant purchased the plaintiff's judgment, and perfected an appeal to the supreme court.
These facts were called to the attention of the court. Mr. Justice Grier said: This appeal must
be dismissed. Selah Chamberlain is, in fact, both appellant and appellee. By the intervention
of a friend, he has purchased the debt demanded by Cleveland in his bill, and now carries on a
pretended controversy by counsel, chosen and paid by himself, and on a record selected by
them, for the evident purpose of obtaining a decision injurious to the rights and interest of
third parties.
In the case of Berks Co. v. Jones, 21 Pa. St. 416, Black, C. J., speaking for the court, said:
Without a doubt, the object of the proceeding was not to settle a real dispute, but merely to
ascertain the law; in other words, to make the court act as counsel for the commissioners. But
they have no right to get advice in this way. Courts ought to encourage amicable submissions
of real disputes, but people have no right to propound abstract questions to them.
pound abstract questions to them. For this there is not only the clearest reason, but the highest
authority. * * * The judge of the common pleas, overindulgent to the parties, decided the law
for them, when he might have stricken the case from the record. With an easy good nature,
equally inexcusable, we have done the same thing. We have considered the subject with as
much care as if it had been regularly before us; and we unanimously agree in pronouncing the
opinion of the court below to be a perfectly sound exposition of the law. But because there
was nothing on which a judgment could be entered, the writ of error must be quashed.
(Pittsburg v. Allegheny, 1 Pitts, R. 99.)
In the case of Meeker v. Stratt, 38 Mo. App. 243, the supreme court said: This decree
cannot stand. Suits contemplate adversary parties, although amicable suits may be brought to
determine the respective rights of the party thereto. When a suit is brought with a view of
affecting the rights of third parties, and it is apparent that that is its sole object, the suit ceases
to be adversary, and becomes collusive. No court should lend its aid to such a proceeding,
least of all a court of equity. * * * All these considerations lead to the inevitable conclusion
that the decree in the present case was unwarranted by the law and the evidence, and that the
trial court instead of rendering a decree for plaintiff should have dismissed her bill. Judgment
reversed and bill dismissed.
Courts of justice are established for the purpose of deciding really existing questions of
right between parties who, in good faith, submit a case to the court for a decision, and the
court should not try an action upon a feigned issue, or an abstract question of law, or judicial
practice, not arising out of circumstances really existing, in which the parties have a legal
interest. An action is a legal prosecution by a party complainant, against a party defendant, to
obtain the judgment of the court in relation to some rights claimed to be secured, or some
remedy claimed to be given by law to the party complaining. It is given by law, for the
recovery of that which is one's due, or a legal demand of one's rights.
From the evidence in this case, we are satisfied that, at the time of commencing this
action, the plaintiff had no legal demand against the defendants, and they did not infringe
upon any of the plaintiff's rights in relation to the property in controversy;
troversy; that the action was commenced by the plaintiff as the agent and trustee of the
defendants, and his denial that there was no agreement between himself and Sadler that no
judgment should be taken against Sadler, Torre, and Barbieri, or the Nevada Stage &
Transportation Company, need occupy but little attention, as all the circumstances connected
with the purchase and possession of the property, as well as the affidavits of Rives, Sadler
and Torre, in support of the motion to dismiss, clearly show that plaintiff had agreed to and
was holding the bill of sale of the property in trust for the defendants named, and for their use
and benefit, and for the purpose of protecting their title to the property, and, as they supposed,
to prevent Townshend from asserting any claim to the property, under an agreement entered
into by Townshend on the one part, and Sadler, Torre and Barbieri on the second part,
wherein they covenanted and agreed, that immediately upon the receipt by us of all moneys
which we have agreed to pay said Eureka County Bank, and all money now due us from W. J.
Townshend, together with all which we may hereafter have to pay out in order to conduct said
stage line, and upon our being secured from loss by reason of our being sureties upon the mail
contract bonds of said W. J. Townshend, we will transfer and set over unto said Townshend,
or his order, all of said property connected with said lines which we may acquire in
connection with the conduct of said lines, and which we may charge as having been
necessarily purchased in the conducting of said lines and business. It is also understood and
agreed that, in case we have to pay interest, and any money, to the Utah, Nevada & California
Stage Company, in order to carry on said stage lines, or to retain possession of the property
hereinbefore mentioned as having been transferred to us, this agreement to reconvey shall
become operative until such interest and payment to said Utah, Nevada & California Stage
Company shall be repaid to us; and, as was said in the case of Lord v. Veazie, supra, any
judgment, entered under the above state of facts, would be a nullity; and a right of action
must be complete before the suit is brought, and no subsequent occurrence of a material fact
will avail the plaintiff in maintaining the suit. (Morre v. Maple, 25 Ill. 343.) Therefore the
assignment of the judgment by Haley to Ahern did not change the condition of things as to
the fictitiousness of the action when commenced.
when commenced. There could be no rights, under such a judgment, to assign.
The plaintiff also objected to the reading of the affidavit of Rives, for the reason that the
same was incompetent, irrelevant, and immaterial, and discloses information which was
obtained when he was acting as attorney for the plaintiff, and discloses privileged
communications between attorney and client, and that it attempts to prove facts contrary to
the admitted allegations of the complaint. It did not disclose privileged communications.
Some of the statements made by him were in the nature of communications received while
acting as the agent and attorney for the defendants in the purchase of the property from the
Eureka County Bank, Townshend, and the Utah, Nevada & California Stage Company, and
conversations had by Haley and Sadler, in the presence and hearing of Rives; and such
statements are not privileged, when the action is between the parties to the conversation.
(Michael v. Foil, 6 S. E. Rep. 264.) Where an attorney was acting for both plaintiff and
defendant in drawing a contract for them to sign, communications of the parties to such
attorney are not confidential. (Appeal of Goodwin Gas-Stove & M. Co., 12 Atl. Rep. 736;
Griffin v. Griffin, 17 N. E. Rep. 782; Hurlburt v. Hurlburt, 2 N. Y. Supp. 317.)
In the case of Bauer's Estate, reported in 21 Pac. Rep. 762, the supreme court of California
said: When two persons address a lawyer as their common agent, their communications to
the lawyer, as far as concerns strangers, will be privileged, 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. The appellant claims: That the court erred in granting said motion to
dismiss, and in entering said judgment, for the reason that no jury was ever waived in this
action. An answer to that objection is, that a jury was not demanded, and by the silence of
the plaintiff he waived his right thereto if any he had.
In the case of Sheets v. Bray, 24 N. E. Rep. 358, the supreme court of Indiana said: We
have been unable to find any bill of exceptions in the record showing a request on the part of
appellants for a jury trial, and a refusal and exception thereto, nor is any such bill referred to
by counsel in their brief. In the absence of such request, the right to a trial by jury, if such
right existed in this case, must be regarded as waived."
right existed in this case, must be regarded as waived. (Grant v. Hughes, 2 S. E. Rep. 345.)
The objection of the plaintiff to G. W. Baker, as amicus curiae, making the motion to
dismiss the action, is without merit. In the earlier English cases, we find that any stranger as
amicus curiae, may move the court of matters apparent in the writ, and the court ex-officio is
bound to abate the writ if it be vicious, for false Latin or default of form, or that the one plea
goes to the whole, and the court will discharge all others; or may move to quash an
indictment apparently vicious, be the crime what it will; and a party was permitted to state in
court that he was present at the making of the statute, and what was the intention of
parliament in enacting the law; and, if an action be abated, any one may move to have the
verdict set aside, even the defendant himself. (2 Vin. Abr. 175.) If a judge be doubtful, or
mistaken in a matter of law, a stander-by may inform the court, as amicus curiae. In some
cases, a thing is to be made apparent by suggestion; on the roll, by motion; sometimes by
pleadings, and sometimes as amicus curiae. (Tayl. L. Gl. 43, and 29 Ind., supra.)
In the case of Ex-parte Randolph, 2 Brock. 454, Mr. Nichols appeared as amicus curiae at
the request of the court, and argued the question therein pending. And in Ex-parte Yeager, 11
Grat. 656, where the petitioner had made application for a license to keep a public house, Fry,
who was counsel in a similar action, was permitted to appear as amicus curiae, and argue
against granting the same.
In the case of People v. Gibbs, reported in 38 N. W. Rep. 258, Thompson asked
permission of the court to assist in the prosecution of the case, he having theretofore had
something to do with the prosecution, but his request was denied. Thompson then suggested
to the court that the defendant be required to plead to the information. Counsel for the
defendant objected to Thompson addressing the court, the objection was overruled, and the
defendant required to plead. On appeal the supreme court said: The suggestion of
Thompson was one which might very properly have been made as amicus curiae, by any
member of the bar. The court may, and often does, of its own motion, ask of counsel
information upon a point in doubt, or in relation to the merits of the case on trial. (State v.
McCullough, 20 Nev. 154.)
It is not only the right, but the duty, of an attorney of the court, if he knows or has reason
to believe that the time of the court is being taken up by the trial of a feigned issue, to so
inform the judge thereof; and it is discretionary with the court to stay proceedings, make due
inquiry, and if the facts warrant the suggestion, then dismiss the case.
The judgment of dismissal is affirmed.
Bigelow, J., dissenting:
In the verified complaint filed in this action the plaintiff alleges that he is the owner and
entitled to the possession of certain personal property of the value of six thousand two
hundred dollars, which the defendants have unlawfully taken from him and converted to their
own use. The defendants demurred; their demurrer was overruled; and, all but the bank
failing to answer, their default was entered. Subsequently, upon their motion, the default was
set aside by the district court, but upon appeal to this court (20 Nev. 426), the order was
reversed. Upon the return of the case to the district court for further proceedings upon the
default, on motion of the defendants' attorney, G. W. Baker, acting as amicus curiae, the
action was dismissed, upon the ground that it was collusive and fictitious.
It is agreed that the property originally belonged to the Utah, Nevada & California Stage
Company. One Townshend was in possession of it under a contract of purchase, the company
retaining title until it was paid for. The defendants were sureties upon a certain bond for
Townshend, and he was also indebted to them. Becoming involved, he transferred the
property to the Eureka Bank, to which he was also indebted. The defendants paid the bank the
amount due it, and took possession of the property, under an agreement with Townshend that
when they were indemnified upon the bond, and repaid the money advanced upon the
property and the amount then owing them, it was to revert to him.
The defendants' evidence upon the motion tends further to prove that the stage company,
demanding payment of the balance due it, was also paid by the defendants, but the legal title
to the property was taken in the name of the plaintiff, under an agreement that he was to hold
it in trust for them; that it was further agreed that the plaintiff should bring this action, obtain
judgment against the defendants, and sell the property out in their interest.
their interest. This, of course, vested the legal title in him, but as a trustee for the defendants,
other than the bank. On the other hand, the plaintiff denies this, and upon the hearing of the
motion testified that he bought the property for his own purposes, paid for it with his notes,
and that there was no agreement or understanding that he should hold it in trust, or in any
manner, for the defendants.
Under these circumstances, I shall not investigate the evidence to determine whether the
plaintiff's or the defendants' contention is the better supported by it. In my judgment the
principles asserted in Lord v. Veazie, 8 How. 251, and similar cases concerning fictitious
actions, have no application here.
Taking the broadest and most charitable view of the defendants' case as presented upon the
motion, it appeared that the plaintiff alleged by his verified complaint that he was the owner
and entitled to the possession of the property; the defendants admit that he holds the legal
title, but claim that it is only in trust for them, and consequently that he is not, as against
them, entitled to its possession, nor to recover its value. The burden of showing this is, of
course, upon them.
This is the ordinary situation in a contested lawsuit: The plaintiff asserts a right which the
defendant denies. Under such circumstances, it has heretofore been supposed that the parties
are entitled to a regular trial, either with or without a jury, as they may elect, to determine
whether this right exists or not. This is perhaps the first time where, in advance of the trial,
against the protests of one of the parties, the case has been taken up, the evidence heard and
the merits of the action decided upon a simple motion, decided, too, against a plaintiff whose
evidence made at least a prima facie case, such a case as would have prevented a non-suit
upon a trial. Unquestionably, before it could be determined that the action was collusive, it
was necessary to decide the very point in dispute between the parties; that is, that the plaintiff
was holding the title to the property in trust for the defendants. If he was not, if, as he alleged
and testified, it was absolutely his, and they were wrongfully detaining it from him, then there
was no collusion in commencing the action, nor in maintaining it. In determining this point
against him, the court decided in the defendants' favor the only defense they could possibly
have made, had they been allowed to answer.
Usually, after a claim legal upon its face is sufficiently stated in a complaint, and the
defendant has lost the right to make any defense, judgment goes against him as a matter of
course. But here, after this right had been lost, the defendants were allowed upon a mere
motion to make their whole defense, and in a much more expeditious manner than they could
had they been permitted to answer. I say the defendants were allowed, because the
proposition that Mr. Baker, who had been their attorney through all these years of litigation,
made this motion, not in their interest, but as an amicus curiaea friend of the courtis too
transparent for sober consideration.
2. If the transaction was just what the defendants claim it to have been; if the plaintiff took
the title to the property in trust for the defendants, and commenced the action in their interest,
it also appears clearly enough that this was done for the purpose of obtaining some unfair
advantage of Townshend or his creditors. It is hard to determine just what their ideas were,
owing probably, to the fact that they themselves did not have a clear perception of them, but it
is safe to say that men do not resort to such crooked methods for honest purposes. The bill of
sale vesting the legal title to the property in the plaintiff, was, in my judgment, under the
circumstances, equivalent to the deed in Peterson v. Brown, 17 Nev. 175, and brings the case
directly within the principles there laid down. In the attempt to overreach some one else,
through the treachery of their confederate, they have been caught in their own trap, and
neither law nor justice calls upon the courts to interfere in their behalf. Why this should be
the rule has been so clearly and fully stated in the last-mentioned case, that I refrain from
saying more concerning it.
A fictitious case is one where, without there being any real litigation between the parties, a
pretended case is presented in which it is sought to obtain an authoritative decision of some
point of law that will, as a precedent, determine the rights of others, who may have a real
controversy with the parties to this collusive proceeding. This constitutes a fraud upon the
third persons as well as upon the court, because it is highly probable that only one side will be
properly presented or argued, and consequently that a biased decision will be rendered that
will affect their rights, without their being heard. This is not that kind of a case. There is no
question of law to be decided here, nor, whatever may have been the purpose in the
beginning, will the result affect any third person.
be decided here, nor, whatever may have been the purpose in the beginning, will the result
affect any third person. This is a case of attempted fraud, where the parties to the attempt,
after going a certain length, and after, perhaps, reaping all the benefits they expected from
their acts, have fallen out, the same as they did in Peterson v. Brown, and now the defendants
are trying to relieve themselves from a position which they have voluntarily assumed, by
showing that the bill of sale was not made, and the action based thereon was not brought,
bona fide, but for the purpose of deceiving and overreaching others. To permit them to do this
is to allow them to plead their own fraud in avoidance of the consequences of their acts.
Of course, the plaintiff did not demand a jury trial upon the hearing of the motion; he
would not have been entitled to it, if he had; for juries are not called to decide motions. Upon
this point the error of the court consists in hearing and deciding, upon a mere motion, the
entire merits of the action, without a trial of any kind, either with or without a jury. I think the
judgment should be reversed.
____________
21 Nev. 144, 144 (1891) Eureka County v. Lander County
[No. 1330.]
COUNTY OF EUREKA, Respondent, v. COUNTY OF
LANDER, Appellant.
CountiesEstablishment of Boundaries and Corners.In 1862 the county of Lander was created by legislative
enactment which designated the fortieth meridian as its western boundary, and the eastern boundary of
Humboldt county. In 1870, by virtue of law, and at the instance of the boards of county commissioners of
Lander and Humboldt counties, the county surveyors of the two counties jointly established this boundary
and subsequently established the northwest corner of Lander county. The results of these joint surveys were
generally recognized and acquiesced in. When the legislature subsequently created Eureka county from the
territory of Lander county, it designated the boundary between the two counties as a line running south
from a point on the north boundary line of Lander county and equi-distant from the northwest and northeast
corners of the latter county. In 1887 it was discovered that the Humboldt-Lander boundary of 1870 had
been erroneously fixed one and one-half miles east of the fortieth meridian. Held, that Eureka county was
created with reference to the fixity of the northwest corner of Lander county as then established, and that
the intention of the legislature must be ascertained from the facts existing at the time it created Eureka
county, and not from facts which arose afterwards.
Appeal from the District Court of the State of Nevada, Ormsby county.
Richard Rising, District Judge.
W. D. Jones, District Attorney of Lander county, Trenmor Coffin and Henry Mayenbaum,
for Appellant.
I. The tax was paid to Lander county by authority of the legislature, and it cannot be
recovered by Eureka county, unless by authority of the same power. It certainly will not be
contended that the legislature's power and control over all the revenues of the counties is not
unlimited. The courts have no jurisdiction over such matters. No matter what the
consequences of the exercise of such legislative power may be, the courts must say, and have
ever said: Lex Scripta est. (Welty's Law of Taxation, Sec. 51, p. 118; Dubuque v. Chicago D.
& M. Co., 47 Ia. 196; Cooley on Taxation, pp. 575, 168, 171; Com. of Laramie Co. v. Com.
of Albany Co., 92 U.S. 307; People v. Alameda Co., 26 Cal. 650; 1 Desty's Taxation, 269;
Hess v. Pegg, 7 Nev. 30; State v. Parkinson, 5 Nev. 28; Youngs v. Hall, 9 Nev. 212; R. R.
Co. v. Stockton City, 41 Cal. 147; Payne v. Treadwell, 16 Cal. 233; Pattison v. Yuba County,
13 Cal. 175.)
II. The Humboldt-Lander line and the Eureka-Lander line being established by the officers
authorized by law are conclusive. The court cannot interfere. (2 Dillon's Mun. Corp. p. 825;
Gaines v. Thompson, 7 Wall. 347; United States v. Wright, 11 Wall. 648; Johnson v.
Towsley, 13 Wall. 72; Somerset v. Town of Glastenbury, 17 Atlantic, 748; Wells Res
Adjudicata et Stare Decisis, p. 341; Stanford v. Taylor, 18 How. 409; Jenkins v. Trager, 40
Fed. 727; United States v. Supulveda, 1 Wall 104; Ellis v. Whan, 91 Ill. 77; Abbott's Practice
Ev. p. 829; Allen v. Blunt, 3 Storey 742; Bates v. Ill. C. R. Co., 1 Black. 204; Lindsey v.
Hawes, 2 Black. 554; United States v. Flint, 4 Saw. 43; Ringstorf v. Guth, 50 Cal. 89; San
Diego City v. Allison, 46 Cal. 168; Gallagher v. Riley, 49 Cal. 473; 1 Herman's Estoppel, p.
517; Shaffer v. Weech, 9 Pac. Rep. 205; Mather v. Hood, 8 Johns 45; 2 Phillip's Ev. 162;
Castro v. Hendricks, 23 How 438; Hoole v. Kinkead, 16 Nev. 222; In re Palagano, 38 Fed.
580; White v. Spreckels, 75 Cal. 610; Fall v. Humboldt Co., 6 Nev. 103; Howland v. Town of
Springport, 43 N. Y. 457.)
III. Edwards being authorized by law to establish the Eureka-Lander boundary line, his
determination can not be collaterally attacked in this action. (Wells Res Adjudicata, pp.
233-342; Bigelow's Estoppel, 1 Ed. 144; State ex rel. Hymer v. Nelson, 32 N. Y. Rep. 589; 1
Desty's Taxation, 510; Freeman on Judgments, Secs. 523-531; 1 Herman's Estoppel, 519,
526; Secombe v. Railroad Co., 23 Wall. 109, 119; McKean v. Taite, 1 Overton 199; Beard v.
Federy, 3 Wall. 489; Alviso v. United States, 8 Wall. 342; People v. Collins, 19 Wend. 56,
58.)
IV. This action is barred by the statute of limitations and by acquiescence. The statute of
limitations runs against counties. Section 3649 of the Gen. Stat. of Nev. makes the statute of
limitations apply to the state and abolishes the maxim: Nullum tempus occurrit regi.
Independent of the statute the maxim does not apply to counties and municipal corporations.
(Wood's Lim. of Actions, Sec. 53; St. Charles Co. v. Powell, 22 Mo. 525; Evan v. Erie Co.,
66 Pa. St. 222; Baker v. Johnson Co., 33 Ia. 151; Huston v. Travis Co., 62 Tex. 16; Ouchita
Co. v. Tufts, 43 Ark. 136.) The statute of limitations applies to boundary lines. (Cooper v.
Vierra, 59 Cal. 282; Reed v. Farr, 35 N. Y. 116.)
V. By its acquiescence for the period equal to that fixed by the statute of limitations for
gaining title by adverse possession, i. e. five years, Eureka county is forever estopped from
questioning these boundary lines. (2 Herman's Estoppel, pp. 1266, 1274, 1276; 1 Dillon's
Mun. Corp. Sec. 184, n.; Rockwell v. Adams, 6 Wend. 468; Baldwin v. Brown, 16 N. Y. 359;
Hunt v. Johnson, 19 N. Y. 279; Reed v. Farr, 35 N. Y. 113-116; Sneed v. Osborn, 25 Cal.
619; Columbet v. Pacheco, 48 Cal. 395; Biggins v. Champlin, 59 Cal. 113; White v.
Spreckles, 75 Cal. 610; Burris v. Fitch, 76 Cal. 395; Edward Co. v. White Co., 85 Ill.
390-401; Rhode Island v. Mass., 4 How. 591; Missouri v. Iowa, 7 How. 660; Gillespie v.
Cunningham, 2 Humph. 19; State v. Glenn, 18 Nev. 44; People v. Farnham, 35 Ill. 562;
Brown v. Leete, 6 Saw. 332.)
VI. Edward's survey can in nowise be impeached by the later surveys of Monroe and
Reed. (Tyler's Boundaries, 334; McKean v. Taite, 1 Overt. 199; Polk v. Gentry, 1 Overt. 269;
United States v. Hanson, 16 Pet. 196; Improvement Co. v. Munson, 14 Wall. 442; Lessee v.
Smith, 1 Yerg. 496; Lewen v. Smith, 7 Port. 428; Norris v. Hamilton, 7 Watt. 91; Bonney v.
McLeod, 38 Miss. 393; Stanford v. Taylor, 18 How. 409; Jenkins v. Trager, 40 Fed.
Trager, 40 Fed. 729.) The survey of Read is entirely out of the question. He acted under no
authority. It was a private survey, and a private survey can in no way be of any efficacy as
against a public survey by an authorized surveyor. (Tyler's Boundaries, pp. 286, 311, 313,
315; United States v. Hanson, 16 Pet. 197; Rose v. Davis, 11 Cal. 133.)
I. This form of action, being for money had and received, can always be maintained in
cases where one party or person has received money, which in equity, law, or good
conscience ought to have been paid to, received by, or belongs to another. (Pomeroy's
Remedies, 2 Ed. Sec. 544; Freer v. Denton, 61 N. Y. 492, 495; White Pine Co. Bank v.
Sadler, 19 Nev. 98; Mason v. Whaite, 17 Mass. 563; Cansidirre v. Beers, 2 Keyes 200;
Newman v. Supervisors, 45 N. Y. 676; Kreutz v. Livingston, 15 Cal. 346; Wells v. Am.
Express Co., 49 Wis. 229; Eagle Bank v. Smith, 5 Conn. 75; Tutt v. Ide, 3 Blatchf. 249.)
II. The court below finds, beyond question, that the property of Wenban, upon which
the tax in controversy was levied, is in Eureka county, and as this was a mooted question
upon the trial, with evidence pro and con., the findings of the court in that respect are
therefore conclusive upon appeal. (Smith v. Mayberry, 13 Nev. 427; Solen v. V. & T. R. R.
Co., 13 Nev. 107; Duquette v. Ouilmette, 13 Nev. 499; Treadway v. Wilder, 9 Nev. 67.)
III. Edwards, who was at the time the county surveyor of Eureka county, was a public
officer, and could not bind his county by making an erroneous survey, whether he made the
error by mistake or design. (Rossire v. City of Boston, 4 Allen 57; Farish v. Coon, 40 Cal. 35;
Board of Sup. v. Ellis, 59 N. Y. 620; Bigelow on Estoppel, pp. 586, 587; Hunter v. United
States, 5 Pet. 181.)
IV. There can be no estoppel founded upon ignorance of the true state of facts.
Knowledge of the true state of facts must be shown to be possessed by the party claimed to be
bound or estoppel cannot be sustained. (Brewer v. Boston & W. R. R. Co., 5 Metcalf 478;
Bigelow on Estoppel, 523, 524; Spring v. Huston, 52 Cal. 442; Chapman v. Crooks, 41 Mich.
595; Thayer v. Bacon, 3 Allen 163.)
V. The statute of limitations does not apply to the facts in this case. This action was
brought within ninety days after the receipt and appropriation of the money by the defendant.
Mr. Wenban, the owner of real estate lying near the boundary line of Eureka and Lander
counties, and assessed by each county as within its jurisdiction, paid his taxes to Lander
county, under the law authorizing a taxpayer to pay either county. (Gen. Stat. Sec. 1205.) The
county of Eureka, claiming that the assessed property is within its boundaries, brought this
action to recover back the amount of money paid.
The statute creating the county of Eureka describes the boundary line between Eureka and
Lander counties as follows: Beginning at a point on the north boundary line of Lander
county, equi-distant between the northeast and northwest corners of said Lander county;
thence running due south from said initial point to the south boundary line of said Lander
county. Eureka county was required to establish this line at its own expense. (Stat. 1873, p.
107.) The line was accordingly established by Mr. Edwards, the county surveyor of Eureka
county. His survey placed the disputed territory in Lander county.
At the time of the passage of the law creating Eureka county the north line of Lander
county and its northeast and northwest corners had been established. As the position of the
northwest corner is the principal matter of contention upon this appeal, the manner in which it
was established may be stated. The statute creating Lander county designates the fortieth
meridian as its western boundary. (Stat. 1862, p. 53.) The meridian is also the eastern
boundary of Humboldt county. In the year 1870 the position of this boundary line was
established by a joint survey of the county surveyors of the respective counties, made at the
instance of the county commissioners, in pursuance of a statute requiring the establishment of
boundary lines between counties by their surveyors whenever the positions of such lines are
disputed by reason of the settlement of persons or ownership of property thereon. (Stat. 1866,
p. 130.) Subsequently the northwest corner of Lander county was established by the county
surveyors of Humboldt and Lander counties.
ties. The point was accepted by the county surveyor of Elko county, and the south boundary
line of that county, which is the north line of Lander county, commences at this corner.
This line and corner were established in order that certainty could be attained in questions
touching the territorial extent of the jurisdiction of courts, of the right of taxation, and other
matters of a public nature; and, having been established for the information and guidance of
public officers and private citizens, their position was matter of public knowledge. When the
legislature created the county of Eureka from the territory embraced within Lander county,
and referred to the line and corners mentioned, it must be presumed to have acted with
knowledge of these public facts. There was in fact no other north line or northwest corner of
Lander county, nor was provision made for the ascertainment of any other. The position of
the line and corner was matter of interest to the counties of Elko, Humboldt and Lander, as
well as Eureka, and, if the legislature had intended any other, provision would probably have
been made for a joint survey by the counties interested. But at this time no one had
questioned the correctness of their position.
Another act, framed at the same session, illustrates the understanding of the members of
the legislature upon this subject. The act is entitled An act to define and establish the
boundary line between Humboldt and Lander counties, (Stat. 1873, p. 189,) and describes
the portion of the line under consideration as follows: Beginning at the northwest corner of
Lander county, and running due south on the present line between Humboldt and Lander
counties to a point due north of Battle Mountain station. * * * The present line here
mentioned was that made by the joint survey of 1870, because down to the time of the
passage of this law no other line had been run, and the northwest corner could have been no
other than that made by the intersection of the southerly boundary line of Elko county with
the Humboldt-Lander line in the year 1871.
In the year 1887 it was discovered that the Humboldt-Lander line as fixed by the joint
survey of 1870, was not at the fortieth meridian, but was one and a half miles east of it; and it
results that if the north line of Lander county were extended westward so as to intersect the
meridian, and the equi-distant point mentioned by the statute taken upon such extended line,
the disputed territory would fall in Eureka county.
disputed territory would fall in Eureka county. But the error in the survey was not known
until long after the enactment of the law creating Eureka county, and has no bearing upon the
question of the intention of the legislature. The intention must be ascertained from the facts
existing at the time of the passage of the law, and not from facts arising afterwards. At the
time the law was framed the impression was that the position of the line and corner had been
correctly ascertained, and they were, therefore, adopted by the legislature as fixed objects
from which the Eureka line could be established.
The judgment of the district court in favor of Eureka county is reversed, and the cause
remanded.
____________
21 Nev. 150, 150 (1891) Gage v. Phillips
(No. 1337.)
W. S. GAGE, AS SURVIVING PARTNER, Etc. Respondent,
v. M. A. PHILLIPS, Appellant.
Parol Evidence, When InadmissibleMerger.In the absence of fraud or mistake, proof of the contents of lost
letters is inadmissible to alter or vary the terms and effect of a mortgage subsequently executed between the
parties, and all previous oral negotiations and agreements concerning the subject matter are merged in the
mortgage.
Bill of SaleIgnorance of Contents.Ignorance of the contents of a bill of sale upon the part of one signing it,
when neither fraud in its procurement nor falsity of representations are alleged, will not excuse the signer
from its legal effect.
EvidenceWhen Excluded by Statute.Under the statute of Nevada, prohibiting a person from testifying when
the other party to the transaction is dead, or when the opposite party to the action is the representative of a
deceased person, as to the facts which transpired before the death of such deceased person, a defendant, in
a suit by a surviving partner to foreclose a mortgage, will not be allowed to testify that the deceased partner
accepted property under a verbal agreement in satisfaction of the mortgage.
Trenmor Coffin and William Woodburn, for Appellant.
I. Even if the court should refuse to consider the testimony of defendant on the ground
that the opposite party to the transaction is dead, the testimony of disinterested
witnesses, coupled with strong circumstances, make it clear that the bill of sale was given
as security for a sum of borrowed money not involved in this case.
of defendant on the ground that the opposite party to the transaction is dead, the testimony of
disinterested witnesses, coupled with strong circumstances, make it clear that the bill of sale
was given as security for a sum of borrowed money not involved in this case.
II. The court erred in excluding the offered testimony of defendant as to payment and
satisfaction on the ground that Hampton, of the firm of Hampton & Co., with whom she
negotiated, was dead. (Crane, Hastings & Co. v. Gloster, 13 Nev. 279; Vesey v. Benton, 13
Nev. 285.)
W. E. F. Deal, for Respondent.
I. The court did not err in sustaining respondents' objections to the testimony of appellant
as to the transactions between her and Hampton, deceased. The legislature has so amended
the statute since the decision in Crane v. Gloster and Vesey v. Benton that those decisions are
inapplicable to the facts in this case.
II. The rules of evidence do not permit appellant to show the bill of sale to have been
anything else except what it was, without some allegation of fraud or mistake, and counsel for
appellant claimed nothing of the kind. (Menzies v. Kennedy, 9 Nev. 159; Saunders v. Stewart,
7 Nev. 200; Feusier v. Sneath, 3 Nev. 120; Bingham v. Thompson, 4 Nev. 224; Berthold v.
Fox, 97 Am. Dec. 245; Adair v. Adair, 71 Am. Dec. 779.)
This action was brought by W. S. Gage, as surviving partner of the firm composed of
Clark P. Hubbell, J. C. Hampton and W. S. Gage, doing business under the firm name of J. C.
Hampton & Co., to foreclose a mortgage executed by M. A. Phillips, the defendant, to J. C.
Hampton & Co., of Virginia City, Nev., dated on the 16th day of May, 1887. The complaint
contains the usual allegations in actions of the kind.
In her answer the defendant avers: That on or about the
____
day of May, 1888, said
defendant was the owner of a certain lot of furniture, carpets, bedding, stoves, and all
necessary articles for the complete furnishing of a lodging-house, which was then in a
lodging-house situated on B street, in Virginia City, Nev., * * * and which said lot and
lodging house were then owned by said J. C. Hampton, now deceased, or by said firm of J.
C. Hampton & Co.
house were then owned by said J. C. Hampton, now deceased, or by said firm of J. C.
Hampton & Co. That on or about said
____
day of May, 1888, this defendant and said J. C.
Hampton, now deceased, agreed together that said J. C. Hampton should take said furniture,
bedding, carpets, stoves, and other articles then in said lodging-house, in full satisfaction of
the note and mortgage mentioned in plaintiff's complaint. That said J. C. Hampton, now
deceased, then, either for himself or for said J. C. Hampton & Co., did take said furniture and
property in full satisfaction of said note and mortgage. That said J. C. Hampton died without
satisfying said mortgage, or the record thereof. That said furniture and other property was of
the reasonable worth and value of three thousand dollars. The plaintiff introduced his note
and mortgage in evidence, and rested his case in chief.
It appears from the transcript that in the year 1881 the defendant borrowed a large sum of
money from J. C. Hampton & Co., giving as security for the payment thereof notes secured
by mortgages on property situated in Virginia City and Carson City, Nevada. That the
furniture now in controversy was in a house in Virginia City, and has never been removed
therefrom. That on the 16th day of May, 1887, J. C. Hampton, for the firm of J. C. Hampton
& Co., had a settlement of accounts with the defendant, and it appears that on such settlement
defendant owed the firm of J. C. Hampton & Co. about twelve thousand dollars. The
defendant gave to J. C. Hampton a deed to the Virginia City property; consideration, one
thousand dollars. She also executed and delivered to J. C. Hampton & Co., at the same time
and place, and as a part of the same transaction, the note and mortgage sued upon, and a bill
of sale of all the furniture in the Virginia City house. The defendant now swears, that, at the
time she signed the bill of sale, she did not know what she was signing, as she had no glasses
with her, and, as she had borrowed one hundred and fifty dollars from Hampton on the day
she signed the papers, she supposed she was signing a note for that amount.
The defendant also testified, or attempted to, that she had a conversation and some
correspondence with J. C. Hampton, in which he agreed to take the furniture in payment of
the two thousand dollars indebtedness, and enter satisfaction of the mortgage sued upon.
The letters claimed to have been received from Hampton could not be found, and the
defendant called a Mrs. C. H. Robinson as a witness, and offered to prove by her the contents
of the letters written by her for Mrs. Phillips to Hampton, and Hampton's letters in reply,
which it appears that Mrs. Robinson had read to the defendant; to all of which counsel for the
plaintiff objected, on the ground and for the reason that all the correspondence was had before
the note and mortgage were given. The court sustained the objection, and the defendant
excepted to the ruling.
The testimony was inadmissible for the purpose offered. When parties reduce their
contract to writing, all oral negotiations and agreements are merged in the writing, and the
instrument must be treated as containing the whole contract, and parol proof is not admissible
to alter its terms, or to show that, instead of being absolute, as it purports to be, it was in
reality conditional, unless the party attacking the instrument can establish fraud or mistake in
its execution.
The case of Stewart v. Babbs, 120 Ind. 571, is directly in point on this case. In that case the
defendants purchased land. They gave notes and mortgages to secure the payment of the
purchase money. On the trial of the case the defendants gave testimony changing the terms of
the deed and mortgage. On appeal, the supreme court said: It is well settled, by a long line of
decisions of this court, that, when the parties reduce their contract to writing, all oral
negotiations and stipulations are merged therein. (See, also, Wight v. Shelby Railroad Co.,
16 B. Mon. 4; Fairbanks v. Metcalf, 8 Mass. 238; Ward v. Lewis 4 Pick. 520; Worrall v.
Munn, 5 N. Y. 238; Clark v. Gifford, 10 Wend. 313; Gilbert v. Insurance Co., 23 Wend. 45;
De Witt v. Berry, 10 Sup. Ct. Rep. 536; Polhill v. Brown, 10 S. E. Rep. 921; Land Co. v.
Dromgoole, 7 South. Rep. 444; Bruns v. Schreiber, 45 N. W. Rep. 861; Northwestern Fuel
Co. v. Bruns, Id. 699; Hills v. Rix, 46 N. W. Rep. 297.)
There is neither fraud nor mistake charged in the answer, and the attorney for the
defendant stated in open court, that they did not claim that there was any fraud in the
transactions. The mere statement of the defendant that she did not know what she was
signing, when she signed the bill of sale, is no excuse in law. In order to be of any benefit to
her, she should have set out in her answer that the paper introduced in evidence was
obtained by misrepresentations of its contents,
dence was obtained by misrepresentations of its contents, and that the misrepresentations
were false, and that she had exercised due diligence to guard against fraud; and, to excuse a
want of due care and diligence in a case of this kind, the defendant should show that there
was a known trust and confidence between the parties to the instrument, and that the
relationship of the parties was such as to justify the existence of such trust and confidence.
Defendant attempted to prove that in the spring of 1888, and prior to the death of
Hampton, she had a conversation with him, wherein he agreed to take the furniture in full
payment of the amount due on the note and mortgage, to-wit, two thousand dollars, and enter
satisfaction of the same. To the introduction of this testimony plaintiff objected to the
defendant testifying to any conversation had between herself and Hampton in relation to their
business transaction, for the reason that the other party to the transaction was dead. The
defendant admitted that all her dealings and conversations were with J. C. Hampton.
The court sustained the objection, and this, defendant claims to be error, and in support
thereof rely upon the authority of the cases of Crane, Hastings & Co. v. Gloster, 13 Nev. 279;
and Vesey v. Benton, Id. 284.
In the statute of 1864, p. 77, we had an act of the legislature defining who should and who
should not be witnesses. Under that statute the decision in the case of Roney v. Buckland, 4
Nev. 45, was rendered, in which this court held: When a surviving partner is sued for a loan
for the use of the firm made to the deceased partner, and of the particulars of which the
deceased partner only was cognizant, the plaintiff is not a competent witness in his own
behalf. In 1869, at the time of the adoption of our civil practice act (either by mistake or
design), the following paragraph was omitted from the act: Except where the adverse party is
dead, or where the opposite party shall be the administrator or executor. Under the act of
1869, the cases in 13 Nev. were decided, and each of these opinions were written by the
judges under protest, and they did not hesitate to express their contempt of an act that
required of them to affirm judgments, when such judgments had been obtained on the
testimony of parties to a transaction, when the opposite parties, and the only persons who
could testify or contradict their statements, were dead.
In the case of Crane v. Gloster, Justice Beatty, at page 281, said: It appears, then, that the
old law recognized two reasons for excluding the testimony of a party interested, while the
present law recognizes but one. Of the two principles of exclusion, the sounder and better has
been rejected, and the more arbitrary and unreasonable retained. The result is, that our law on
this subject is about as bad as it could be made. The policy of sealing the lips of the surviving
party to any transaction, when the opposite party, whether principal or agent, is dead, is
sanctioned and approved by the statutes of several of the states. * * * We, however, have
retained this rule in its most arbitrary form, and have abolished altogether the other rule,
which invariably operated to the promotion of justice. Hawley, C. J., in Vesey v. Benton,
said: It seems proper, however, in view of the results reached in Crane, Hastings & Co. v.
Gloster, ante, and in this case, to call the attention of the legislature to the crude and
unsatisfactory provisions of the statute referred to. The only object of incorporating any
provision of exclusion is to prevent fraud and injustice. Then, after commenting upon the
facts in the two cases mentioned and the application of the statute, he says: Thus, as will
readily be seen, giving to the defendant in the former, and the plaintiff in the latter, case an
undue and unfair advantage. A statute that leads to such results is repugnant to every sense of
justice and of right, and ought to be amended. It was amended by an act of the legislature of
1881 (Stat. 1881, p. 80), and reads as follows: No person shall be allowed to testify * * *
when the other party to the transaction is dead, or when the opposite party to the action, or the
person for whose immediate benefit the action or proceeding is prosecuted or defended, is the
representative of a deceased person, when the facts to be proved transpired before the death
of such deceased person. Under the above statute, the defendant was not a competent
witness to prove the conversations had between herself and Hampton.
She is prohibited from testifying as to any statement made by the deceased to her, or to any
business transaction between herself and the deceased. The statute has in view transactions
between parties, one of whom had since died, and whose representative was engaged in a suit
with the survivor. As to such transaction neither party is allowed to testify. The survivor
should not, because the mouth of the other party to the transaction is forever closed.
because the mouth of the other party to the transaction is forever closed. Therefore the rule as
laid down in the case of Roney v. Buckland, 4 Nev. 55, is a clear exposition of the law as it
then existed, and re-enacted in 1881, while the cases in 13 Nevada were a correct
interpretation of the law at the time the decisions were rendered. The act of the legislature
governing the cases being repealed, they are no longer authorities in actions such as the one
under consideration. In support of the views herein expressed, we cite as authorities: Wilcox
v. Corwin, 117 N. Y. 502; Clift v. Moses, 112 N. Y. 431; Tuck v. Nelson, 62 N. H. 471; Parks
v. Andrews, 56 Hun. 393; Kimble v. Carothers, 81 Pa. St. 506; Koehler v. Adler, 91 N. Y.
657; Shain v. Forbes, 82 Cal. 583; Parks v. Caudle, 58 Tex. 221; Dolan v. Dolan, 7 South.
Rep. 425; Glover v. Thomas, 12 S. W. Rep. 685; Fulcher v. Mandell, 10 S. E. Rep. 582;
Nesbitt v. Parrott, Id. 590; Patterson v. Martin, Id. 820; Gunther v. Bennett, 19 Atl. Rep.
1048; Gavin v. Bischoff, 45 N. W. Rep. 306.
In the case of Simpson v. Simpson, 12 S. E. Rep. 450, plaintiff was permitted to testify that
the sum of fifty dollars had been paid on the note and mortgage. The mortgagor and maker of
the note was dead. The supreme court held that the plaintiff was not a competent witness to
prove what was, or was not paid; the proof necessarily concerned transactions with the
deceased about which he could testify, and might testify, differently, if living, and we think
he was rendered incompetent as a witness for any such purpose. Counsel for appellant, in
their oral argument, in this court claimed, that, the action being prosecuted by Gage as
surviving partner, the rule did not apply, and the defendant should have been permitted to
testify. The act of the legislature under consideration in this case accomplishes the very
purpose of its enactment, namely, it prevents living witnesses from establishing contracts, by
their own evidence, as to personal transactions and communications with parties whose lips
have been sealed by death.
The case of Green v. Edick, 56 N. Y. 613, was an action against the defendant, as
surviving partner of the firm of Edick & Son. Upon the trial, plaintiff, as a witness in his own
behalf, was allowed to testify to a conversation between himself and the deceased partner.
Held to be error, and judgment reversed. (Roney v. Buckland, 4 Nev. 45; Shain v. Forbes, 82
Cal. 583; Dolan v. Dolan, 7 South. Rep. 426.)
There was no error in the ruling of the court in refusing the defendant permission to amend
her answer: (1) The amendment was intended to vary the terms of a written contract, which
was not permissible, in the face of the admission of the defendant that she did not claim there
was any fraud in the transaction; and (2) the court stated that, if the defendant wanted to show
that the bill of sale was intended as a mortgage, she could do so. There was no error in the
court's refusal to make the finding asked for by the defendant. There is nothing in the case
that would justify the making of any such finding. It therefore follows, from the views we
have expressed, and from the authorities we have cited, that there was no error committed by
the court in its rulings, and the claim of the appellant that there is no evidence to sustain the
decree of the court is not well founded.
The judgment of the district court and the order refusing a new trial are affirmed.
____________
21 Nev. 158, 158 (1891)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
APRIL TERM, 1891.
____________
Volume 21
____________
21 Nev. 158, 158 (1891) Bowler v. Curler
[No. 1336.]
P. M. BOWLER, Jr., Respondent, v. BENJ. CURLER and
B. F. CURLER, his son, Appellants.
Constructive TrustsParol EvidenceStatute of Frauds.Where a grantor, without consideration, even though
the deed expresses a consideration, standing in a confidential relation with the grantee, conveys land with
the understanding that the grantee shall hold it for the benefit of the grantor, equity will raise a constructive
trust, which may be established by parol evidence, and in such case the statute of frauds, requiring trusts in
lands to be created either by act or operation of law or by written deed or conveyance, does not apply.
Appeal from the District Court of the State of Nevada, Esmeralda county.
Robt. M. Clarke, for Appellants.
I. If a trust exists, the daughter of plaintiff is the cestui que trust, and not the plaintiff.
trust, and not the plaintiff. Any other interpretation defeats the manifest intentions of the
parties and reduces the averments of the complaint to grotesque absurdity.
II. Considering the whole case and giving due credit to all of the evidence, both written
and parol, the evidence is not sufficient to establish a trust for either plaintiff or his daughter.
The deed is absolute and without condition. It contains no words of trust and expresses a
valuable consideration in money. The burden of proof to show a trust was upon respondent
and his claim is opposed by the deed. Parol evidence of any fact that will defeat the apparent
object and effect of a deed must be clear and attended with no uncertainty, and even then,
should be regarded with great caution. If the law were otherwise, the door would be opened
wide to fraud and perjury, and no man could rest in safety upon his title. (Dalton v. Dalton,
14 Nev. 419; Feusier v. Sneath, 3 Nev. 120.)
III. The court erred in admitting parol evidence to create an express trust in land. (Gen.
Laws of Nev. 2624; Perry on Trusts, 75-79.)
IV. When a deed on its face expresses a valuable consideration, parol evidence is not
admissible to show that it was made without consideration, unless in case of fraud or mistake.
(Perry on Trusts, Sec. 162; Pilbrook v. Delano, 29 Me. 410; Graves v. Graves, 29 N. H. 129;
Randall v. Phillips, 3 Mason, 388.) If land be conveyed by an absolute deed, no express trust
in favor of the grantor can be raised by proof of a parol agreement of the grantee to hold the
property in trust. (Barr v. O'Donnell, 76 Cal. 469; Feeney v. Howard, 79 Cal. 525; Wheeler v.
Reynolds, 66 N. Y. 227; Lawson v. Lawson, 117 Ill. 98; Bonham v. Craig, 80 N. C. 224;
Mescall v. Tully, 91 Ind. 96.)
A. W. Crocker, Trenmor Coffin, P. Reddy and P. M. Bowler, Jr., in propria personae, for
Respondent.
I. The confidential relations of the parties being admitted, the promise under which the
deed was executed, clearly established and found by the jury and court, the abuse of such
confidence, and the violation of the promise, constitute actual fraud. The provisions of the
civil code of California defining fraud, both actual and constructive, are declaratory of the
common law, as administered in courts of equity, and obtain in Nevada without the code, by
statutory adoption of the common law and the decisions of this court.
vada without the code, by statutory adoption of the common law and the decisions of this
court. (Vansickle v. Haines, 7 Nev. 249; Evans v. Cook, 11 Nev. 69; Clark v. Clark, 17 Nev.
124; Gruber v. Baker, 20 Nev. 453; Hunt v. Patchen, 13 Saw. 306.)
II. Where one takes advantage of a confidential relation, involving trust and good faith, to
impose upon another, and by imposition, deception or undue influence does an injury to
another, equity will lend its aid to remedy the wrong. (Shaffer v. Sleade, 7 Blackf. (Ind.), 178;
Harkeness v. Fraser, 12 Fla. 336; Calloway v. Witherspoon, 5 Ind. (N. C.), 128; Cook v.
Nathan, 16 Barb. 342; Wyche v. Greene, 11 Ga. 159; Birdsong v. Birdsong, 2 Head. (Tenn.),
289; Barnes v. Brown, 32 Mich. 146.)
III. It is immaterial whether appellant intended to perform his agreement at the time it was
made. Its violation, though subsequently conceived with a view to personal gain, or injury to
respondent, constitutes fraud. A breach of a parol promise to convey, or to appropriate
property for the use of the grantor, constitutes fraud, if the deed was obtained on the faith of
the promise. (Coger's Executors v. McGee, 2 Bibb. 321; Parks v. Chadwick, 8 Watts & Serg.
96; Renshaw v. Gaus, 7 Barr. 117; Taylor v. Gilman, 25 Vt. 412.)
IV. The statute of frauds does not preclude a party from establishing any implied,
resulting or constructive trust known or recognized by the common law. (White v. Sheldon, 4
Nev. 293; Brison v. Brison, 75 Cal. 533; Boskowitz v. Davis, 12 Nev. 446; Dalton v. Dalton,
14 Nev. 419; Pierce v. Robinson, 13 Cal. 116; Taylor v. Luther, 2 Sum. 233; Moyer v.
Moyer, 21 Hun. 67; Bohm v. Bohm, 10 Pac. Rep. 790.)
V. Having shown that the parties stood in a confidential relation, the burden of proof was
on appellants. (Walton v. Karnes, 67 Cal. 255; Kline v. Kline, 57 Penn. Stat. 120; Pairo v.
Vickery, 37 Md. 485; Smith v. Townshend, 92 Am. Dec. 637; Williams v. Hollingworth, 47
Am. Dec. 527; Neil v. Keeso, 51 Am. Dec. 746; Holida v. Shoop, 59 Am. Dec. 88; Garnsey
v. Mundy, 13 Am. L. R. 345; Ward v. Matthews, 14 Pac. Rep. 604.)
The plaintiff conveyed certain real property described in the complaint to his father-in-law,
the appellant. The deed of conveyance states that it was made in consideration of the sum
of one thousand two hundred dollars.
veyance states that it was made in consideration of the sum of one thousand two hundred
dollars. Plaintiff claimed, and the court and jury found, in substance, that the title to the
property was conveyed to the appellant, without consideration, upon his promise to hold it in
trust for the benefit of the plaintiff, and, in case of the plaintiff's death, for the benefit of his
infant daughter; and that the conveyance was made because of the confidential and influential
relation which existed between the parties. A decree was entered in favor of the plaintiff,
requiring the defendant's son, who was also a defendant in the case, and who received the title
to the property without consideration, to make a deed of conveyance thereof to the plaintiff.
Appellant claims that parol evidence was inadmissible to prove the trust. The claim is
based upon the statute of frauds. The statute provides: No estate or interest in lands * * * nor
any trust or power over or concerning lands or in any manner relating thereto, shall hereafter
be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or
by deed or conveyance in writing, subscribed by the party creating, granting, assigning,
surrendering or declaring the same. * * * (Sec. 2624, Gen. Stat.)
If the statute is applicable to the case, the trust is void, because it is an express trust,
established by parol evidence only. Nor is the trust one arising by act or operation of law,
within the meaning of the statute, for the law never implies a trust when there is an express
one declared by word or writing. (2 Washb. Real Prop. 470; Dennison v. Goehriny, 7 Pa. St.
175.) But the statute of frauds has no application.
The plaintiff conveyed the property to the defendant because of the confidence reposed in
him, without consideration other than he should hold it subject to the trust mentioned. If
defendant were permitted to retain it, plaintiff could be defrauded, and the statute, which was
intended to prevent frauds, would be the means for the accomplishment of a fraud. To prevent
such a result, equity raises a constructive trust in the grantee and in favor of the grantor.
In the case of Cox v. Arnsmann, 76 Ind. 212, a husband and wife conveyed land to a
person without other consideration than that he should immediately reconvey it to the wife. It
was held that the land was taken in trust for the wife. The court said: The trust in the present
case, being an express trust in relation to land, cannot be proved by parol without violating
the statute, unless there is some equitable rule of construction which takes such a case
out of the statute.
in relation to land, cannot be proved by parol without violating the statute, unless there is
some equitable rule of construction which takes such a case out of the statute. There are in
equity certain trusts called constructive trusts,' which do not arise by implication of law.
They are not resulting trusts, but are said to be in the nature of resulting trusts. (Perry, Trusts,
Secs. 240, 241.) Thus, equity will raise a constructive trust to prevent a fraud. (2 Washb. Real
Prop. 476.) And whenever property is acquired by fraud, or when, though originally acquired
without fraud, it is against equity that it should be retained by the party, then equity raises a
constructive trust, which is held to be not within the statute (Id. 482), and which may be
proved by parol. Thus, in the case of Hayden v. Denslow, 27 Conn. 335, there was an
agreement between father and son, by which the son was to convey land to the father, and the
latter was to hold it in trust for the son's wife. It was held that, when a deed is given and
received for such a purpose, a constructive trust arises, which will be enforced in equity, and
that the facts out of which such trust arises may be proved by parol. So, in the case of Hoge v.
Hoge, 1 Watts, 163, it was held that, if a testator be induced to make a devise, by the promise
of the devisee that it should be applied for the benefit of another, equity, upon these facts,
would create a constructive trust, which might be established by parol.
Another case similar in principle is that of Wood v. Rabe, 96 N. Y. 422. In that case, as in
this, the trust was oral. The court said: But, being oral, the trust was void, within the sixth
section of the statute, unless the transaction constituted a trust by implication or operation of
law, and was, therefore, within the exception in the seventh section. It is not easy to ascertain
from the adjudged cases the exact scope of the exception in the statute, Car. 11, of trusts
arising by implication or construction of law,' or of the equivalent exception in our statute of
trusts arising by implication or operation of law.' It is not difficult to name trusts which
unequivocally are trusts arising by implication or operation of law. Trusts arising from the
presumed intention of the parties, indicated by their acts, although not expressly declared, and
those arising from the application of some settled principle of equity to the situation, furnish
many instances of implied or constructive trusts. Resulting trusts at common law arising from
the payment of purchase money, or when the trust is not declared, or is declared only in
part, or for any reason fails, are illustrations of the former class, and those arising by
equitable construction, independently of intention, from dealings by trustees or quasi
trustees with trust property, furnish many examples of the latter.
chase money, or when the trust is not declared, or is declared only in part, or for any reason
fails, are illustrations of the former class, and those arising by equitable construction,
independently of intention, from dealings by trustees or quasi trustees with trust property,
furnish many examples of the latter.
But there is a large class of so-called constructive trusts,' or trusts ex maleficio, where
courts of equity treat the holder of the legal title to land as a trustee, and, through the medium
of an assumed trust, make that title subservient to the circumvention of fraud and the
attainments of justice. Trusts of this character are not, I assume, within the exception in the
statute. * * * (But see Davies v. Otty, 35 Beav. 208; Seichrist's Appeal, 60 Pa. St. 237.) So,
where a trust is sought to be established from the violation of an oral agreement purporting to
create a trust, and a court of equity upholds the trust, and enforces specific performance, the
trust is not an implied or constructive trust within the statute. (See Bellasis v. Compton, 2
Vern. 294.) The court in granting relief in case of an oral agreement proceeds upon the
ground of fraud, actual or constructive, and enforces the agreement notwithstanding the
statute, by reason of the special circumstances.
The two principles upon which equity proceeds in this character of case are thus stated:
One is that it will not permit the statute of frauds to be used as an instrument of fraud; and
the other that when a person, through the influence of a confidential relation, acquires title to
property, or obtain an advantage which he can not conscientiously retain, the court, to prevent
the abuse of confidence, will grant relief. (Page 425.)
Some of the decided cases hold that trusts arising out of facts similar to those of the
present case arise by implication or construction of law, and are, therefore, within the
exception in the statute of frauds; others, that such cases do not fall within the exception; but
all agree that either by the exception, or not notwithstanding the statute of frauds, relief may
be granted in a proper case. Appellant also claims that if any trust was established it was for
the benefit of plaintiff's daughter, and for himself. The complaint alleges a trust in favor of
the daughter; and also a trust for the benefit of plaintiff, and, in the event of his death, then
for the benefit of his daughter. The pleading is ambiguous in this respect, but the objection
was not taken, and the evidence was sufficient to support the finding of fact upon this
point.
not taken, and the evidence was sufficient to support the finding of fact upon this point. The
judgment and order are affirmed.
____________
21 Nev. 164, 164 (1891) Peers v. Deluchi
(No. 1333.)
J. V. PEERS, ADMINISTRATOR OF THE ESTATE OF P. MARTINONI, Appellant, v.
JOSEPH DELUCHI, et als., Respondents.
Public LandsEvidence of Title.The affidavits and declaratory statements of entrymen applying to pre-empt
public lands, filed in the proper land office, or copies thereof certified to by the register of the land office
wherein the originals are filed, are admissible in courts of justice as evidence of the facts therein stated.
IdemFunctions of Register of Land Office.Whether land applied for is in the register's district, is subject to
entry, has been reserved by act of congress or by the proper department, has been sold, and whether the
applicant possesses the necessary qualifications of an entryman and has made the settlement on the land
required by the pre-emption laws, are questions of fact for the register to decide, and when he has decided
his action is final until reversed or set aside by the commissioner of the general land office.
IdemRailroad GrantPrior Pre-emption.Congress granted to the Central Pacific Railroad Company
alternate sections of land, but reserved all lands in the grant to which homestead or pre-emption rights
might attach before the line of the railroad should be definitely fixed. Ten months before the line of the
road was definitely fixed, land within the limits of the grant was settled upon and improved, and ten days
before the line was fixed the settlers filed their affidavits and declaratory statements in the proper land
office. Held, that such lands were not included in the operation of the grant to the railroad company.
Clarke & Jones, for Appellant.
I. The declaratory statements and affidavits of Groten and Meyers were not competent
evidence against plaintiff to show that a pre-emption had attached to the land.
II. A pre-emption right does not attach by the mere filing of a pre-emption claim. There
must be a pre-emption and a bona fide settlement before "a pre-emption" attaches.
and a bona fide settlement before a pre-emption attaches.
III. The declaratory statements and accompanying affidavits did not prove and were not
intended to prove, even to the land department of the United States, much less to the court in
this case, that either Groten or Meyers were qualified pre-emptioners or had made, or ever
intended to make, a bona fide settlement on the land. (Page v. Hoffs, 27 Cal. 486; Brown v.
Carson, 16 Or. 388; Young v. Goss, 42 Kan. 502.)
R. H. Lindsay and Baker & Wines, for Respondents.
I. The land in controversy was excluded from the operation of the grant to the railroad
company. (Kan. Pacific R. R. Co. v. Dunmeyer, 113 U.S. 629; Hastings & Dakota R. R. Co.
v. Whitney, 132 U.S. 357.)
II. The cases cited by appellant are not in point, except the case of Brown v. Carson,
which is in direct conflict with the decisions of the supreme court of the United States. In
Young v. Goss, cited by appellant, the homestead entry had been abandoned before the grant
took effect.
It appears from the records of this court that the plaintiff, P. Martinoni, has died since the
rendition of the judgment and denial of the motion for a new trial in the district court, and by
order of this court J. V. Peers, public administrator of Washoe county, has been substituted as
plaintiff and appellant in place of deceased. This action was brought by P. Martinoni, now
deceased, to recover possession of a tract of land situate in Washoe county. James Murphy
and _______ Murphy were sued, but they having disclaimed any interest in or right of
possession to the land, it was stipulated that judgment might be rendered against them for the
land, but not for damages. The cause was tried before the court without a jury, and judgment
was given in favor of Joseph Deluchi and Angelo Deluchi. The plaintiff moved for a new
trial, and, the motion being denied, appeals from the judgment and order.
The land in controversy is situate within the limits of the grant to the Central Pacific
Railroad Company of California, by an act of congress passed July 1, 1862, entitled An act
to aid in the construction of a railroad and telegraph line from the Missouri river to the
Pacific ocean, to secure to the government the use of the same for postal, military, and
other purposes."
Missouri river to the Pacific ocean, to secure to the government the use of the same for postal,
military, and other purposes. (12 U.S. Stat. at Large, p. 489.) Section 3 of said act reads as
follows: And be it further enacted: That there be, and is hereby, granted to the said company,
for the purpose of aiding in the construction of said railroad and telegraph line, and to secure
the safe and speedy transportation of the mails, troops, munitions of war, and public stores
thereon, every alternate section of public land, designated by odd numbers, to the amount of
five alternate sections per mile on each side of said railroad, on the line thereof, and within
the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of
by the United States, and to which a pre-emption or homestead claim may not have attached,
at the time the line of said road is definitely fixed. * * * This act was amended by section 4
of the act of July 2, 1864 (13 U.S. Stat. at Large, 358), by inserting the word ten instead of
five, and twenty instead of ten, and then reads: And any lands granted by this act or
the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead,
swamp land, or other lawful claim, nor include any government reservation or mineral lands,
or the improvements of any bona fide settler. * * *
It is conceded that the land in controversy is a part of an odd section; that the line of the
road was definitely fixed on the 14th day of October, 1867, and that the plaintiff had obtained
a deed from the railroad company to the land prior to the commencement of this action; and
that the title of the railroad company was perfect when it made the deed to Martinoni under
the grant found in the above-mentioned act, unless it comes within some of the exceptions
mentioned in said grant. The attorney for appellant contends that the evidence introduced on
the part of the defendants was incompetent, irrelevant, immaterial, and did not tend to prove
the existence of a pre-emption claim to the land. The defendants in their answer denied the
plaintiff's ownership and right of possession to the land. They also introduced in evidence the
following exhibits: Martin Groten, being duly sworn, deposes and says: I reside in Storey
county, Nevada. I settled upon and commenced improving the southeast quarter of the
southwest quarter of section sixteen (16), and south half of southwest quarter, and northwest
quarter of southwest quarter of section fifteen {15), township nineteen {19) north, of
range 21 east, about the 15th of February, 1S64.
quarter of southwest quarter of section fifteen (15), township nineteen (19) north, of range 21
east, about the 15th of February, 1864. Said land was then unsurveyed. I have not seen any
notice of publication of the reception of the township plat at the land office at Carson City,
Nevada, and did not know that the plat was at the land office until a few days since, or I
should have filed on the land long ago, or within the time prescribed. I now ask to be allowed
to file my declaratory statement upon the above described land. Martin Groten. Subscribed
and sworn to before me, this 4th day of October, 1867. Warren T. Lockhardt, Register.
Declaratory statement:
I, Martin Groten, of Storey county, Nevada, being a married man, and a native-born
citizen of the United States, did, on or about the 15th day of February, A. D. 1864, settle and
improve the S. E. 1/4 of the S. W. 1/4 of section 16, and S. 1/2 of S. W. 1/4 and N. W. 1/4 of
S. W. 1/4 of section 15, in Tp. 19 N., of R. 21 E., in the district of lands subject to sale, at the
land office at Carson City, Nevada, and containing one hundred and sixty acres, which land
has not yet been offered at public sale, and thus rendered subject to private entry; and I do
hereby declare my intention to claim the said tract of land as a pre-emption right, under the
provisions of the act of congress, approved the 4th of September, A. D. 1841. Given under
my hand and seal this 4th day of October, A. D. 1867. Martin Groten.
[Seal.] In the presence of Warren T. Lockhardt, Register.
There were two similar papers made out and sworn to by John P. Myers, on the same day,
and before the same officers, the only difference being, Myers was a resident of Washoe
county, a single man over the age of twenty-one years, and had settled and commenced
improving the N. E. 1/4 of the S. W. 1/4, and S. E. 1/4 of the N. W. 1/4, and the W. 1/2 of the
N. E. 1/4 of section 15, in township 19 N., of range 21 E., on the 1st day of January, A. D.
1864, and had resided on the land and made it his home from the date of his settlement until
the time of filing his declaratory statement. All the papers are duly certified to by O. H.
Gallup, as register of the United States land office at Carson City, Nev., as being full, true,
and correct copies of the originals thereof filed in his office, and that he was the custodian of
the same.
Plaintiff objected to the introduction of said declaratory statements, and to said
affidavits, and to each of them, on the grounds following, to-wit: "That they were
incompetent, and not the best evidence; that the matters set out in said exhibits, and
each of them, could not be proved by such exhibits; that the evidence offered was
ex-parte that the facts recited therein could not be so established in this case; that it was
not competent to prove by said exhibits that the persons named therein were
pre-emptors, or were entitled to the rights of such, or that they had settled upon the land,
or otherwise complied with the law."
statements, and to said affidavits, and to each of them, on the grounds following, to-wit:
That they were incompetent, and not the best evidence; that the matters set out in said
exhibits, and each of them, could not be proved by such exhibits; that the evidence offered
was ex-parte that the facts recited therein could not be so established in this case; that it was
not competent to prove by said exhibits that the persons named therein were pre-emptors, or
were entitled to the rights of such, or that they had settled upon the land, or otherwise
complied with the law. The affidavits and declaratory statements are in the form as
prescribed by the commissioner of the general land office for the guidance of the local land
officers. Whenever a party makes application to pre-empt land, the register of the land office
must satisfy himself that the land is within his district; that it is subject to entry; that it has not
been reserved by any act of congress, or of the proper department, and that it has not been
sold. He must also be satisfied that the party making the application to pre-empt possesses the
necessary qualifications to entitle him to do so, and has made the settlement on the land as
required by the pre-emption laws. These are all questions of fact for the register to decide,
and in deciding them, he requires the exercise of judgment and discretion, and when he has
decided, his action is final until reversed or set aside by the commissioner of the general land
office.
When the proof establishes the facts to the satisfaction of the register, that the party is
entitled to enter the land, the declaratory statement, and all papers connected therewith, are
filed and become a part of the records of the land department. They are kept in the office so
as to show what lands are taken under the pre-emption, homestead, or other laws of the
general government. The records are in the custody and under the control of the register, and
are kept under the official sanction of the government; their contents have always been
considered, and always have been received in courts of justice as evidence of the facts stated.
In the case of Courchaine v. Mining Co., 4 Nev. 375, Lewis, J., said: The paramount
proprietor of the soil, having an unrestricted right of disposition, has established certain
regulations, by which persons producing the requisite proof are entitled to purchase. * * * The
decision of the proper officers is therefore evidence, not only of the fact that he in whose
favor it is rendered is entitled to the patent, but also that he has settled upon and
improved the premises claimed by him, and is certainly a direct acknowledgment that
such settlement and possession is lawful and in accordance with the will of the general
government.
whose favor it is rendered is entitled to the patent, but also that he has settled upon and
improved the premises claimed by him, and is certainly a direct acknowledgment that such
settlement and possession is lawful and in accordance with the will of the general
government. The register and receiver of the local land office are the officers appointed by the
government to take the proof; decide upon the merits of the application. The law requires the
proof in all cases to be made to their satisfaction. Where the proof is so made, and their
decision rendered, how can it be said that such decision is not evidence of right of possession
in him in whose favor it is given? It is a decision made by officers appointed by the
government to determine such rights. Their decision is the decision of the government itself,
and should therefore be accepted as evidence of superior rights. The conclusion arrived at by
the land officers, although not strictly a judicial decision, bears nevertheless a strong analogy
to it, and it seems to us should be received as evidence of the right to the possession, and
indeed, of all the facts which it is necessary for the pre-emptor to prove before the land
officers. And in the case of McFarland v. Culbertson, 2 Nev. 285, the same judge said: In
any event, if the defendants wished to derive any advantages from the filing of a declaratory
statement, they should have introduced the statement itself, or a certified copy of it, so that
the court below might judge of its effect.
In the case of Baldwin v. Stark, 107 U.S. 465, Mr. Justice Miller, speaking for the court,
said: It has been so repeatedly decided in this court, in cases of this character, that the land
department is a tribunal appointed by congress to decide questions like this, and when finally
decided by the officers of that department the decision is conclusive everywhere else as
regards all questions of fact, that it is useless to consider the point further. And the decision
of the supreme court of Nebraska was reversed, because they had re-examined the evidence
upon which the officers of the land department had acted, and held the same to be
insufficient.
Section 3618, Gen. Stat. Nev., reads: A copy of any record, document, or paper in the
custody of a public officer of this state, or of the United States, within this state, certified
under the official seal, or verified by the oath of such officer to be a true, full, and correct
copy of the original in his custody, may be read in evidence in any action or proceeding in
the courts of this state, in like manner and with the like effect as the original would be if
produced."
be read in evidence in any action or proceeding in the courts of this state, in like manner and
with the like effect as the original would be if produced.
The papers were admissible in evidence as tending to show that, at the time of the location
of the route of the Central Pacific railroad, there was a pre-emption claim to the land. It
appears from the record submitted to us, that on the 15th day of June, 1886, the railroad
company made application to the land department of the government for a patent to the lands
in question, which application was denied. If, now, we apply these doctrines which have been
established by repeated decisions of the supreme court of the United States, this case before
us will be readily disposed of. The plaintiff relies upon the title of the railroad company to the
lands under the grant mentioned in the act of congress. Defendants deny the title of the
railroad company to the lands under the grant, and have introduced testimony to show that at
the date of the definite location of the route, and the filing of the map with the secretary of the
interior, there was a pre-emption claim attached to said lands, and by reason thereof that the
lands in dispute were exempt from the operation of said grant. In this we think they are
correct.
From the testimony it appears that, ten months prior to the line of said road being
definitely fixed, Groten, for himself and Myers, on his own behalf, settled upon and improved
the lands in controversy, and ten days before the location of said line of road opposite said
lands, the said Groten and Myers presented themselves at the United States land office at
Carson City, and made the proofs to the satisfaction of the register and receiver, and made a
pre-emption claim to said lands, and, from the time of receiving and filing the declaratory
statements in the United States land office, the said lands no longer remained a part of the
public lands of the United States, and would never become a part of the public domain, until
such time as the officers of the land department should take action, and cancel the
applications of Groten and Myers; and to allow the conclusions of the officers of the land
department, on questions of fact, to be subject to review by the courts in cases of this kind,
would open the door to endless litigation.
As said by Justice Lamar in the case of Railroad Co. v. Whitney, 10 Sup. Ct. Rep. 115:
When these three requisites are complied with, and the certificate of entry is executed and
delivered to him, the entry is madethe land is entered.
complied with, and the certificate of entry is executed and delivered to him, the entry is
madethe land is entered. If either one of these integral parts of an entry is defectivethat
is, if the affidavit be insufficient in its showing, or if the application itself is informal, or if
the payment is not made in actual cashthe register and receiver are justified in rejecting the
application. But if, notwithstanding these defects, the application is allowed by the land
officers, and a certificate of entry is delivered to the applicant, and the entry is made of
record, such entry may be afterwards canceled on account of these defects by the
commissioner, or on appeal by the secretary of the interior; or, as is often the practice, the
entry may be suspended, a hearing ordered, and the party notified to show by supplemental
proof a full compliance with the requirements of the department, and, on failure to do so, the
entry may then be canceled. But these defects, whether they be of form or substance, by no
means render the entry absolutely a nullity. So long as it remains a subsisting entry of record,
whose legality has been passed upon by the land authorities, and their action remains
unreversed, it is such an appropriation of the tract as segregates it from the public domain,
and therefore precludes it from subsequent grants. In the case before us, at the time of the
location of the company's road, an examination of the tract-books and the plat filed in the
office of the register and receiver, or in the land office, would have disclosed an entry of
record, accepted by the proper officers, in the proper office. Such an entry attached to the land
a right which the road cannot dispute for any supposed failure of the entryman to comply with
all the provisions of the law under which he made his claim. Railway Co. v. Dunmeyer, 113
U.S. 629; Newhall v. Sanger, 92 U.S. 761; Railroad Co. v. Whitney, 10 Sup. Ct. Rep. 112;
(Whitney v. Taylor, 45 Fed. Rep. 616, U.S. Cir. Ct. Cal., opinion by Hawley, J.)
The judgment and order appealed from are affirmed.
cause below.
____________
[No. 1335.]
THE STATE OF NEVADA, Appellant, v. THE CENTRAL
PACIFIC RAILROAD COMPANY, Respondent.
PracticeCross AppealsAffirmance of One Without Affecting the Other.Where the plaintiff and the
defendant, in an action for delinquent taxes, both appeal, the plaintiff on the ground that the judgment
should have been for a greater amount, and the defendant on the ground that it should have been for a less
amount, the appeals being separate, distinct, and upon different questions, upon the judgment being
affirmed on defendant's appeal and its paying the amount of the judgment, plaintiff is not estopped by the
receipt of such payment from prosecuting its appeal for the recovery of the full amount claimed.
Payment of TaxesWhen a Defense.Under Gen. Stats. Sec. 1205, where property is claimed for taxation by
two different counties, its regular assessment by one of the counties, and the payment of the taxes to that
county prior to the commencement of the action for delinquent taxes in the other county, is a complete
defense to the latter action.
Board of EqualizationNo Jurisdiction to Reconsider.A board of equalization is of special and limited
jurisdiction, having only such powers as are specially conferred upon it. The statute confers upon it the
power to determine all complaints concerning the assessment of property, but after the determination of
such complaints its action is final and it has no power to reconsider and change its action.
on petition for rehearing.
Board of EqualizationAssessmentFraud.In the absence of fraud, the statute makes the action of a board of
equalization in equalizing the valuation of property final, and an allegation of fraud upon the part of the
assessor in fixing values, when it is not claimed that the board of equalization acted fraudulently in
confirming the assessor's valuation, is no ground for disturbing the valuation.
John F. Alexander and J. D. Torreyson, Attorney General, W. D. Jones, District Attorney
of Lander county, and Henry Mayenbaum, for Appellant.
I. The complaint of the railroad company and the action of the board of equalization
thereon, on the 24th day of September, are functus officio, and could not, two weeks
afterwards, or at any time afterwards, be reconsidered or disturbed by any action of the
board.
any time afterwards, be reconsidered or disturbed by any action of the board. The board is, in
this matter of equalization, of special and limited jurisdiction, and nothing in that regard is to
be presumed in its favor. (State v. Washoe, 5 Nev. 319; Swift v. Ormsby, 6 Nev. 95; Hess v.
Washoe, 6 Nev. 104; State v. C. P. R. R. Co., 9 Nev. 79; Sadler v. Eureka, 15 Nev. 39; State
v. Canavan, 17 Nev. 422; Mechem on Public Officers, Sec. 509; Freeman on Judgments, Sec.
531; Weltz's Assessments, Sec. 158; People v. Supervisors, 18 How. Pr. 463; People v.
Commissioners, 19 Wend. 58; Hadley v. Mayor, 33 N. Y. 603; Doke v. James, 4 N. Y. 575;
Bayne v. Morris, 1 Wall. 97; People v. Ames, 19 How. Pr. 551; People v. Supervisors, 35
Barb. 408; People v. Lynde, 8 Cow. 134; People v. Marine Court, 12 Wend 220.)
on petition for rehearing.
I. The cases cited by respondent are not in point. They all proceed upon the theory that the
full amount of the judgment was paid and satisfaction thereof entered. In the case at bar no
such facts appear and none such can appear. This appeal was pending in this court when the
other cross appeal was decided. That decision did not affect this appeal.
I. This appeal should be dismissed. The appellant, having subsequent to the rendition of
judgment, received and receipted for the full amount of the judgment, has waived an alleged
error committed by the court below, and has consented to and acknowledged that the
judgment appealed from is correct. A judgment is the end of the law, and is a termination of
all proceedings in the case after such judgment has been discharged and satisfied with the
consent and upon the application of the party in whose favor it has been obtained. (In re
Baby's Estate, Pac. Rep. Vol. 25, No. 7, p. 405; Morton v. Superior Court, 65 Cal. 496;
People v. Burns, 78 Cal. 645; Moore v. Flood, 4 Or. 260; Cassell v. Fagin, 11 Mo. 208;
Bennett v. Van Syckel, 18 N. Y. 481; Tabler v. Wiseman, 2 O. St. 208.)
II. The action of a board of equalization on an application to change the assessed value of
property is not res adjudicata. (Central Pacific R. R. Co. v. Placer County, 46 Cal. 667.) That
boards of this character have power to rescind their action whenever it is found to be
erroneous or unjust, and while they retain jurisdiction over the parties and the subject
matter, can admit of no doubt.
ever it is found to be erroneous or unjust, and while they retain jurisdiction over the parties
and the subject matter, can admit of no doubt. (Hough v. City of Bridgeport, 57 Conn. 294.)
By the Court, Bigelow, J.:
This action was brought to recover from the defendant the taxes due Lander county for the
year 1889. Included in the property assessed are twenty-nine and fifteen-hundredths miles of
road-bed and main track of the railroad, at a valuation of fourteen thousand dollars per mile.
Upon the trial, under proper allegations, the records of the board of equalization of Lander
county were offered in evidence by the defendant. They show that on September 24, 1889, the
defendant filed a complaint with the board asking that its assessment be reduced to nine
thousand dollars per mile; and at the same time one Dickson also filed a complaint asking
that it be raised to twenty thousand dollars per mile. The two complaints were heard together,
and on the same day the board made an order that the assessment remain, as fixed by the
assessor, at fourteen thousand dollars per mile. On October 7, 1889, the board met again, and
a motion to reconsider their former action was adopted; thereupon another motion was made,
and also adopted, to reduce the assessment to twelve thousand dollars per mile.
To the offer of these records the plaintiff objected, upon grounds that the action of the
board on September 24th was final and conclusive, and could not be reconsidered on October
7th; and that in making the last-named order the board acted without authority or jurisdiction.
The objection was overruled, and the records admitted.
The defendant also claimed that seventy-six one-hundredths miles of the road assessed
was in dispute between Lander and Eureka counties, and that under the statute authorizing
such payment it had paid the taxes thereon to Eureka county. Judgment was rendered for the
state for twenty-eight and thirty-nine one-hundredths miles of road at a valuation of twelve
thousand dollars per mile. Both parties appealed the defendant upon the ground that the
valuation of twelve thousand dollars per mile was excessive, and that a certain school tax was
improperly included in the judgment. Upon that appeal the judgment was affirmed
judgment was affirmed (21 Nev. 75), and upon the return of the remittitur to the court below,
it was paid in full to the district attorney. The plaintiff's appeal is founded upon the claim that
the judgment should have been for the full number of miles of road assessed, valued at
fourteen thousand dollars per mile.
1. The defendant now moves to dismiss this appeal upon the ground that the acceptance
by the district attorney of the money due upon the judgment as affirmed upon the former
appeal is a waiver by the state of the errors now assigned; that the state cannot both enforce
the judgment and appeal from it.
A party may appeal from the whole or any part of a judgment (Gen. Stat. Sec. 3353;
Hayne, New Trials & App. Sec. 185); and upon the hearing of an appeal, the supreme court
may reverse, affirm, or modify a judgment, or affirm it as to some issues and reverse as to
others (Gen. Stat. Sec. 3361; Hayne, New Trials & App. Sec. 295). Under these
circumstances, it would seem reasonable, where several independent issues are tried in a case,
and the appeal is only taken from the judgment upon some of them, that, if error is found, the
reversal should only be as to the issues appealed from, leaving it to stand upon the others.
Even where the appeal is from the whole judgment, in which several independent issues have
been determined, it would seem proper that it should only be reversed as to those in which
error is found. In this case the judgment was for the plaintiff upon some issues, and for the
defendant upon others. Each party has appealed from that which was against itself. The
appeals are separate and distinct, upon different questions, and the judgment upon one need
not in any manner affect the other. After the affirmance of the judgment upon the defendant's
appeal, there could be no further question that the plaintiff was entitled to the money thereby
awarded to it. That is settled; and the only question now is whether it is not entitled to more.
Why then should the acceptance of this money, which was unquestionably due it, and which
the reversal of the judgment upon this appeal will not require it to pay back, or in any manner
affect, work a waiver of the right to appeal upon other issues decided against the plaintiff?
Where a reversal upon the plaintiff's appeal would require him to refund to the defendant
money or property which he has obtained under the judgment, there is reason for holding that
the acceptance of the benefits of the judgment is a waiver of the right to appeal.
of the right to appeal. Having elected to receive the fruits of the judgment, he is estopped
from attempting to destroy the very foundation of his right to receive them. But where a
reversal would not work this resultwhere his right to what he has received would still
remain intactit is difficult to conceive why he should not be allowed to take what is now,
and always will be, his, and still prosecute his claim for more.
This distinction is quite clearly drawn in Embry v. Palmer, 107 U.S. 3; Bennett v. Van
Syckel, 18 N. Y. 481; Reynes v. Dumont, 130 U.S. 394, and other cases, which support the
conclusion to which we have come. There are decisions which seem to hold the contrary; but
if so, we decline to follow them, believing that they are not founded upon principle, and are
contrary to the weight of authority. The motion to dismiss must be overruled.
2. The court found that the seventy-six one-hundredths of a mile of the road upon which
no taxes were allowed in the judgment was claimed by both Lander and Eureka counties; that
it was duly assessed in Eureka county, and the taxes thereon paid to that county by the
defendant, prior to the commencement of the action. This finding is abundantly supported by
the evidence and the plaintiff's admissions, and constitutes a complete defense to that portion
of the action. (Gen. Stat. Sec. 1205.)
3. Did the court err in admitting in evidence the records of the board of equalization of
October 7, 1889, and in finding that the value of the road had been thereby duly equalized and
fixed at twelve thousand dollars per mile, instead of fourteen thousand dollars?
A board of equalization is of special and limited jurisdiction, and, like all inferior
tribunals, has only such powers as are specially conferred upon it. It is essential to the validity
of its actions that they should be authorized by some provision of the statute; otherwise they
are null and void. (State v. Commissioners, 5 Nev. 317; Swift v. Commissioners, 6 Nev. 95;
State v. Railroad Co., 9 Nev. 79.) Gen. Stat. Sec. 1091, provides that the board shall have
power to determine all complaints made in regard to the assessed value of any property.
Without a complaint is made, it has no jurisdiction to act in the premises (People v. Goldtree,
44 Cal. 323; State v. Northern Belle Co., 12 Nev. 89); and after a complaint is once heard and
determined, there is no provision for a new trial, a rehearing, or any further consideration
of the matter.
there is no provision for a new trial, a rehearing, or any further consideration of the matter.
It follows from the principles already stated that the power to reconsider, not being
expressly given, does not exist. This statement of the law is fully borne out by the adjudicated
cases. (People v. Supervisors, 35 Barb. 408; Hadley v. Mayor, 33 N. Y. 603; People v. Ames,
19 How. Pr. 551; Mechem, Pub. Off. Sec. 509.) In People v. Supervisors, 35 Barb. 408, the
board of supervisors of Schenectady county had met and legally apportioned and equalized
the assessment of property among the several towns and wards of the county. The next day
they reconsidered their action and again apportioned and equalized the assessment, but upon a
different basis. It was held, upon a very full review of the authorities that in common with all
other inferior jurisdictions they had by their first action exhausted their discretion over that
subject; that such act was in fact a judgment, and they had no power to reconsider, to review,
reverse or annul their own judicial action. In Hadley v. Mayor, 33 N. Y. 603, it was held that
the common council of the city of Albany having once legally canvassed the votes returned
for the election of mayor of said city, had exhausted their power over the subject, and could
not afterwards reverse their decision by making a different determination. The same rule
applies to justices of the peace (People v. Lynde, 8 Cow. 134); to courts established by statute
(People v. Marine Court, 12 Wend. 220), and to the district courts of this state, except in the
manner authorized by law (State v. District Court, 16 Nev. 372). There is, indeed, but one
case that we have found Hough v. Bridgeport, 57 Conn. 294, that even seems to hold the
contrary; and it is probable that the ruling there was based rather upon the view that the
common council had not by their first action finally disposed of the matter, than with any
intention of holding that they could reconsider and reverse themselves at their discretion. We
conclude that the court erred in its ruling admitting in evidence the records of the board of
October 7, 1889, and in deciding that the plaintiff was only entitled to recover upon a
valuation of the road at twelve thousand dollars per mile. All other defenses having been
heretofore decided against the defendant, it is therefore ordered that this case be reversed, and
remanded to the district court, with instructions to modify the judgment already entered
herein by adding thereto the taxes and penalties due upon twenty-eight and thirty-nine
one-hundred miles of the road-bed and main track of the railroad at a valuation of two
thousand dollars per mile.
instructions to modify the judgment already entered herein by adding thereto the taxes and
penalties due upon twenty-eight and thirty-nine one-hundred miles of the road-bed and main
track of the railroad at a valuation of two thousand dollars per mile.
response to petition for rehearing.
A re-hearing is asked in this case upon the ground that instead of judgment being ordered
in favor of the plaintiff, a new trial should have been granted, to enable the defendant to show
that notwithstanding the action of the board of equalization, fixing the valuation of the road at
fourteen thousand dollars per mile, it is not worth more than twelve thousand dollars. The
answer alleges that the assessor, with knowledge that the road was only of the value of ten
thousand dollars per mile, fraudulently assessed it at fourteen thousand dollars; but there is no
charge that the board of equalization acted fraudulently, or otherwise than in good faith, in
equalizing the value at the same amount. Under these circumstances we are of the opinion
that this defense is not open to the defendant. It was evidently the intention of the legislature
that, in the absence of fraud, the action of the board should be final. No review of, or appeal
from, their decision is provided for. That is the tribunal specially charged with the duty of
equalizing values. If any taxpayer is aggrieved by the action of the assessor, his remedy is by
appeal to this board; and if the members thereof act fairly and in good faith in the matter,
their judgment concerning the valuation of property is not to be revised by a court, which has
no better opportunity than the board for arriving at a correct conclusion.
Fraud in the assessment is one of the defenses allowed the taxpayer by Gen. Stat. Sec.
1108; but clearly this must be such fraud as works the defendant some damage. A fraudulent
overvaluation of property attempted by the assessor, can do him no harm if it is corrected by
the board. If the board bring their honest judgment to bear upon the matter, and determine
that the property has not been over-valued, this determination is conclusive that the assessor's
attempted fraud has done the defendant no damage.
Gen. Stat. Sec. 1091, in at least one instance by express language, makes the action of
the board final; and a review of the whole act shows that it was intended to be final in all
cases except where fraud intervenes.
language, makes the action of the board final; and a review of the whole act shows that it was
intended to be final in all cases except where fraud intervenes. No further appeal is given, and
no more delay contemplated.
In other states where statutes similar to ours have been construed, it has been invariably
held, so far as we have found the decisions, that the action of the board of equalization fixing
values is final and conclusive, where taken honestly and in good faith. This is the rule in
Michigan (Case v. Dean, 16 Mich. 12; McDonald v. City of Escanaba, 62 Mich. 556); in
Indiana (Rhoads v. Cushman, 45 Ind. 85); in Illinois (Insurance Co. v. Pollak, 75 Ill. 294); in
Wisconsin, Lefferts v. Calumet Co., 21 Wis. 688); in Pennsylvania (Hughes v. Kline, 30 Pa.
St. 227); in Maine (Gilpatrick v. Saco, 57 Me. 277); in Massachusetts (Lincoln v. Worcester,
8 Cush 55); in Texas (Texas & Pac. Ry. Co. v. Harrison Co., 54 Tex. 119); in Arizona
(Alantic & Pac. Ry. Co. v. Yavapai Co., 21 Pac. Rep. 768); and is laid down as correct by the
text-writers, (Cooley, Tax'n 528; 1 Desty, Tax'n 498.) The petition for a rehearing is denied.
____________
21 Nev. 180, 180 (1891)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JULY TERM, 1891.
____________
Volume 21
____________
21 Nev. 180, 180 (1891) Gonder v. Miller
[No. 1338.]
D. A. GONDER, Appellant, v. H. S. MILLER, Respondent.
Public LandsEjectmentPrima Facie CaseImproper Nonsuit.Appellant, in an action of ejectment, sued
to recover possession of an unsurveyed tract of government land and introduced evidence tending to prove
his prior possession, an ouster, and rested his case. Respondent moved for a nonsuit upon the ground that
appellant had not acquired, nor shown any intention of acquiring the government title to the land, which
motion was granted by the court. Held, that appellant's evidence established a prima facie case, and there
being no evidence that respondent's rights were better than appellants, the nonsuit was improperly granted.
Appeal from the District Court of the State of Nevada, White Pine county.
T. H. Wells, District Judge.
Rives & Judge, for Appellant.
I. No claim is made that defendant had acquired any right to the possession of the land in
question. Nor has it been shown that he was qualified to enter upon or acquire the title to
the same from the government of the United States or the state of Nevada, or that he is a
citizen of the United States.
shown that he was qualified to enter upon or acquire the title to the same from the
government of the United States or the state of Nevada, or that he is a citizen of the United
States. So far as the record shows, he was a mere naked trespasser, and plaintiff having been
in the undisputed prior possession of the land, inclosed and cultivated the same and made
improvements thereon, he is entitled to the possession thereof as against defendant.
(Staininger v. Andrews, 4 Nev. 59; Yount v. Howell, 14 Cal. 468; Morton v. Folger, 15 Cal.
275; Payne v. Treadwell, 16 Cal. 220; Grady v. Early, 18 Cal. 108; Hubbard v. Barry, 21
Cal. 321; Toland v. Mandell, 38 Cal. 30; Hughes v. Hazard, 42 Cal. 149.)
II. Respondent in support of his position, relies upon the act of congress of February 25,
1885, entitled An act to prevent the unlawful occupation of public lands. Section 6 of said
act reads as follows: That where the unlawful enclosure includes less than one hundred and
sixty acres of land, no suit shall be brought under the provisions of this act without authority
from the secretary of the interior. In construing this section of the act, the secretary of the
interior has decided that the act excepts small inclosures such as the one made by appellant.
(Dec. Dept. Interior, vol. 2, p. 460.)
F. X. Murphy and Thomas Wren, for Respondent.
I. Appellant's claim to the land and occupancy thereof being illegal and against public
policy, cannot be enforced through the courts. The non-suit was therefore properly granted.
(Kitts v. Austin, 23 Pac. Rep. 290; Whittaker v. Pendola, 20 Pac. Rep. 680; United States v.
Bird, 19 Pac. Rep. 251; Barkley v. United States, 19 Pac. Rep. 37; McGinnis v. Friedman, 17
Pac. Rep. 635; Whittaker v. Pendola, 78 Cal. 296.)
II. The evidence shows that the plaintiff, although in possession of the land for many
years, was not holding it under the timber culture act. He had taken none of the steps
necessary under that act to acquire title to the land. That act also has been repealed. If the case
was sent back for trial, plaintiff would not be entitled to maintain his possession of the land
upon the ground that he was in possession under the general laws of the United States, with a
view of entry.
This is an action of ejectment for the recovery of the possession of a tract of unsurveyed
government land containing about forty acres.
Plaintiff introduced testimony tending to prove prior possession of the demanded
premises, and an ouster, and rested his case. No evidence was introduced tending to show the
nature of defendant's claim. A motion for nonsuit was granted, upon the ground that plaintiff
had not acquired, nor shown any intention of acquiring, the government title to the land. In
support of the ruling, respondent relies upon the provisions of an act of congress entitled An
act to prevent the unlawful occupancy of public lands, approved February 25, 1885 (23 Stat.
at Large, 321). The provisions of the act upon which reliance is placed are those which
declare that the inclosure of any portion of the public domain to which the person making the
inclosure has no claim or color of title or asserted right, made in good faith, with a view to
entry under the land laws of the United States, or any fencing or inclosing of such lands
whereby others are prevented from settling thereon under the public land laws of the United
States, is unlawful.
Prior to the adoption of this statute, the supreme court of the United States, in Atherton v.
Fowler, 96 U.S. 513, and other cases, had held that a pre-emption right to public land could
not be initiated by intrusion upon the possession of another. In that case the court said: It is
not to be presumed that congress intended, in the remote regions where these settlements are
made, to invite forcible invasion of the premises of another, in order to confer the gratuitous
right of preference of purchase on the invaders. In the parts of the country where these
pre-emptions are usually made, the protection of the law to rights of persons and property is
generally but imperfect under the best of circumstances. It cannot, therefore, be believed,
without the strongest evidence, that congress has extended a standing invitation to the strong,
the daring, and the unscrupulous to dispossess by force the weak and the timid from actual
improvements on the public land, in order that the intentional trespasser may secure by these
means the preferred right to buy the land when it comes into market. (Pages 516, 517.)
Advantage was taken of this ruling to fence large bodies of public land by persons having
no claim of right thereto, to the exclusion of persons desiring to make bona fide settlements
thereon. To protect actual settlers in good faith against this wrongful interference, congress
declared the acts prohibited by the statute misdemeanors, punishable by fine and
imprisonment, and authorized the president to employ force to remove and destroy the
inclosures. The act does not, however, in terms, permit a private person to dispossess the
occupant of an unlawful inclosure, and the reasons given in Atherton v. Fowler, refute such a
construction.
The case of Laurendeau v. Fugelli (decided by the supreme court of Washington Territory
in the year 1889) is directly in point. In that case the plaintiff held by possession only.
Defendant, whom the court presumed to be a pre-emptor, broke down a portion of plaintiff's
fence, entered upon and took possession of the land. It was claimed that plaintiff was within
the prohibitions of the act of congress forbidding the fencing of public lands, and, therefore,
defendant could lawfully enter. Upon this point the court said: To invoke the act of 1885 as a
license to opposing claimants, pre-emptors, and the like, of a law unto themselves that either
may break down the inclosure of the other and lawfully enter, is to use a rule made for
desperate cases, requiring desperate remedy, and in itself exceptional; to overturn the law; to
bring chaos instead of social order; to make the court a useless formality, and the law an
object of contempt. (21 Pac. Rep. 30.)
It is unnecessary for us to go to the full extent of the Washington case, for the reason that
in the case at bar no evidence was introduced touching defendant's claim, and, for aught that
appears, he may have had no better right than the plaintiff. Upon the facts, we consider that
plaintiff established a prima facie case, and that the nonsuit ought not to have been granted.
The judgment of the district court is reversed, and cause remanded.
____________
21 Nev. 184, 184 (1891) Horton v. New Pass Co.
[No. 1340.]
R. L. HORTON, Respondent, v. THE NEW PASS GOLD
AND SILVER MINING COMPANY et als., Appellants.
PartnershipFacts Insufficient to Constitute.A recorded agreement between a mining corporation and private
parties in which it was agreed that the corporation should convey an undivided one-half of the mining
property to the private parties when they had expended ten thousand dollars in developing and improving
the property, but that the corporation should not be liable for any debts incurred in developing and
improving the property, taken in connection with the fact that the corporation never held itself out as a
partner of the private parties, does not constitute a partnership, even though the corporation was to share in
contingent profits with the private parties.
PracticeMotion to Set Aside DefaultAffidavit of Merits by Attorney.In support of a motion to set aside a
default and judgment thereon, an affidavit of merits, made by the attorney, is sufficient, when it shows that
he is familiar with all of the facts in the case.
IdemNegligence of Attorney.On a motion to open a default and judgment thereon against a company, the
affidavit of merits showed that the company had employed an attorney to defend the action, who had
interposed a demurrer, which being overruled, he was given time to answer; that at the same time he was
given fifteen days to answer in another action pending between the same parties; that he commenced
drawing the answers at once and was busily engaged until called away to another county to attend court,
where he was detained until after default was entered. Held, that it was manifest by the affidavit that both
the company and its attorney intended to contest the case, and that the neglect to file the answer, while
reprehensible, was not inexcusable, and that the motion to open the default should have been granted, upon
such terms as would be just. (Murphy, J., dissenting.)
IdemWhen Motion Should be Made.An application to open a default should be made immediately.
on rehearing.
PracticeNotice of Motion to Open DefaultLaches of Defendant.Judgment by default was entered on May
2, and defendant on May 21 gave notice that on June 25 he would move to open the default. Court was in
session from May 27 to May 31, at which time the motion could have been heard had the five days' notice
required by law been given. The court, however, had on April 19 adjourned to June 25, and on May 21
there was no reason to suppose it would be in session before June 25. Held, as the courts are always open,
and the sessions are held at the convenience of the judges and as the exigencies of business require, that the
adjournment to June 25 was a notice that a session of court would be held at that time, and it was not a
want of diligence for defendant to assume that none would be held before that time, and to give notice of
the motion accordingly.
David S. Truman, for Appellants.
I. The rule is that the lower court ought to have, in its sound legal discretion, opened the
default. (Howe v. Coldren, 4 Nev. 171; Johnson v. Eldred, 13 Wis. 482; Hill v. Crump, 24
Ind. 291; Chicago & N. W. R. R. Co. v. Gillett, 38 Iowa 434; Montgomery v. Ellis, 6 How. Pr.
326; Benedict v. Spendiff, 22 Pac. Rep. 500.)
II. The recorded agreement between the New Pass Company and its co-defendants defeats
the partnership theory and clearly shows that the company was not to be held liable for any
contractual debts incurred by its co-defendants.
I. Defendant's neglect in not answering in time was not excusable but was inexcusable.
Even excusable neglect must plainly appear to authorize the court to set aside judgment by
default. (Coleman v. Rankin, 37 Cal. 247; Reilly v. Ruddock, 41 Cal. 312; Bailey v. Taaffe, 29
Cal. 422; People v. Raines, 23 Cal. 127; Elliott v. Shaw, 16 Cal. 377; Mulholland v.
Heynemann, 19 Cal. 605; Harper v. Mallory, 4 Nev. 447; Haley v. Eureka Bank, 20 Nev.
410.)
II. These agreements cut no figure in this case. They are res inter alios acta. Indeed, they
show that there was a partnership between the corporation and the other defendants, because
the corporation were to get fifty per cent. of the proceeds of the mines.
The sharing of the profits, in any degree, constitutes a partnership, and though those
profits be designated by the parties as rents, and though they agreed that such sharing of
profits should be no partnership. Partnership is a conclusion of law from the facts, and the
parties cannot escape the consequence and liability as partners by calling a partnership
something else. (1 Lindley's Partnership, p. 33, et seq. 4 ed. Ewell's Am. ed., and the cases
cited in the notes; Manhattan v. Sears, 45 N. Y. 800, 801.)
III. The affidavit of merits should be by defendant and not by its attorney. (Bailey v.
Taaffe, 29 Cal. 425; Nickerson v. Cal. Raisin Co., 61 Cal. 268.)
This is an action brought to recover judgment for five thousand two hundred and
twenty-three dollars and thirty-seven cents, alleged to be due the plaintiff for goods sold and
delivered, for labor performed, and upon other contracts with the defendants.
On April 16, 1890, a demurrer previously interposed by the corporation defendant was
overruled, and it was given fifteen days in which to answer. No answer being filed, and the
other defendants having also failed to answer, default and judgment were entered against all
of them on May 2, 1890. On May 21, 1890, the corporation through its attorney served notice
of a motion supported by affidavit to set this default and judgment aside so far as it affected
the company, upon the ground, as therein stated, of surprise, inadvertence, mistake and
excusable neglect to file answer herein, and on the ground that default was taken before the
time for answering had expired. There is nothing in the last ground stated, and it will be
unnecessary to consider it further. On October 9th the motion was overruled, and from this
order the company appeals.
1. From the affidavit upon which the motion was based and the accompanying exhibits,
one of which is its proposed answer, it appears, prima facie, that this defendant has a good
and sufficient defense to the action upon the merits. It is shown that the company, being the
owner of certain mining property, entered into a contract with the other defendants by which
it was agreed that upon their expending ten thousand dollars in developing and improving the
property, they were to receive a conveyance of an undivided one-half thereof; but it was
expressly stipulated that the company should not become responsible for any debts incurred
by them in making such improvements, nor should any partnership be created between them.
This agreement was placed on record in the recorder's office of the proper county, and the
indebtedness upon which the action was brought appears to have been incurred while the
property was being worked under this arrangement.
It is contended by the plaintiff that as the defendant was in a certain contingency to share
some of the profits derived from the working of the mining property, it therefore became a
partner with the other defendants in such working, notwithstanding the stipulation to the
contrary, and consequently liable for the debts incurred therein. Waiving the question of
whether a corporation can form a partnership with an individual, it has been the recognized
rule of law in nearly all courts since the decision in 1860 of the case of Cox v. Hickman, 8 H.
L. Cas. 268, that mere participation in the profits of a business does not create a partnership.
The company had not held itself out as a partner, nor had it by contract or intention formed a
relation with the other defendants in which the elements of a partnership are to be found. It
was therefore not liable as a partner. (Beecher v. Bush, 45 Mich. 188; Heckert v. Fegely, 6
Watts & S. 139; Clinton v. Howard, 89 Mo. 192.) Thus it would seem that a heavy judgment
has been obtained against the company upon claims for which it is in no wise responsible.
The affidavit of merits is sufficient, although made only by the attorney. (State v. Mining
Co., 13 Nev. 194; Jean v. Hennessy, 74 Iowa 348.) The defendant being a corporation it was
necessarily made by some agent, and as the attorney swears he is familiar with all the facts of
the case, both of plaintiff's claim and the defendant's defense, no reason is perceived why he
could not make it as well as another.
2. Having prima facie a food defense to the action, the next inquiry is whether the
company has been guilty of such negligence in making its answer that it has been justly
refused the opportunity of defending itself. While opening a default is said to be much in the
discretion of the lower court, the cases show that this means a legal discretion which has been
unhesitatingly supervised by appellate tribunals wherever it appears to have been so exercised
as to result in injustice. In this regard it is said in Bailey v. Taaffe, 29 Cal. 424: The
discretion intended, however, is not a capricious or arbitrary discretion, but an impartial
discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental
discretion, to be exercised ex gratia, but a legal discretion to be exercised in conformity with
the spirit of the law, and in a manner to sub-serve, and not to impede or defeat the ends of
substantial justice.
tice. In a plain case this discretion has no office to perform, and its exercise is limited to
doubtful cases, where an impartial mind hesitates. If it be doubted whether the excuse offered
is sufficient or not, or whether the defense set up is with or without merit in foro legis, when
examined under these rules of law by which judges are guided to a conclusion, the judgment
of the court below will not be disturbed. If, on the contrary, we are satisfied beyond a
reasonable doubt that the court below has come to an erroneous conclusion, the party
complaining of the error is as much entitled to a reversal in a case like the present as in any
other.
It is difficult to lay down any general rule for determining when a default should be
opened. As said in State v. Mining Co., 13 Nev. 202, each case must necessarily be
determined upon its own peculiar facts. It is safe, however, to say that courts should be liberal
in such matters, where a meritorious defense is shown to the whole or a substantial part of an
action, and it is apparent that the failure to answer is the result of a mistake or of negligence
which is not so gross as to be inexcusable, or to indicate trifling with the court, to the end that
cases may be determined upon their merits and not upon some inadvertence or slip or
aberration of the opposing party or counsel. Such terms can always be imposed as will
compensate the plaintiff for any loss occasioned him by the delay and as will make it
unprofitable to a defendant to willfully neglect to answer.
Courts are established not only to arbitrate and settle the legal controversies of men, but
also to settle them, so far as the inherent imperfections of human tribunals will permit, upon a
just and equitable basis. This can only be arrived at after a full and patient hearing of both
sides. Of course there must be rules of procedure for doing this, which must not be trifled
with. Still they are but means to an end; and whenever they have so operated, or have been so
administered, that the action has been determined with reference to them, instead of the great
principles of right and justice, it can not be denied that therein the tribunal has failed to reach
the end for which it was created. Admittedly, this may be the necessary consequence of the
operation of rules indispensable to the transaction of business, but the result is the samethe
form has triumphed over the substance. All will agree that whenever this can be avoided with
justice to the opposing party, it should be done.
the opposing party, it should be done. In this connection the language of Justice Baldwin in
Roland v. Kreyenhagen, seems quite appropriate: The power of the court should be freely
and liberally exercised under this and other sections of the act to mould and direct its
proceedings so as to dispose of cases upon their substantial merits, and without unreasonable
delay, regarding mere technicalities as obstacles to be avoided, rather than as principles to
which effect is to be given in derogation of substantial right. While formal requirements of
pleading and practice can not be dispensed with by the court, it can usually make such orders,
or grant such amendments in the progress of the cause as will avoid the effect of petty
exceptions, and dispose of the case upon its legal merits. It can also usually prevent unjust or
unfair advantages, or serious injury arising from casualties or inadvertences. The design of
the act was to call into requisition its equitable powers in this respect. (18 Cal. 457.) A
finding that a defendant has negligently failed to answer in the proper time does not cover the
case; the question still remains, is the negligence excusable? Where the circumstances are
such as to lead the court to hesitate in answering this query, the doubt should be resolved in
favor of the application. (Watson v. Railroad Co., 41 Cal. 20.)
Two cases in this court are relied upon by opposing counselHowe v. Coldren, 4 Nev.
171, and Harper v. Mallory, Id. 447the former as requiring the opening of the default and
the latter as justifying the refusal to do so. Each is perhaps a fair sample of its class; the one
enforcing all the strictness of the common law system of pleading and practice, and the other
recognizing the more liberal principles of the reformed procedure, which has endeavored to
wipe away much of the technicality and foolish adherence to form of the former. Harper v.
Mallory was decided by a divided court, and it seems difficult to say of it, as is said in the
prevailing opinion therein concerning the case of Howe v. Coldren: In the decision we
concur. On the other hand, the remarks in the opinion in Howe v. Coldren, dicta though they
be, are, to our comprehension, founded in both justice and good sense. The court there says
(page 175): Certainly there are strong reasons why an appellate court should interfere in the
one case and not in the other. If there is a refusal to set aside a default, a ruinous judgment
may be sustained against a party who, upon hearing, might have interposed a perfectly good
defense.
have interposed a perfectly good defense. By sustaining the default, he would forever be
debarred the right of a hearing. If, then, a nisi prius court refuse to set aside a default when a
party shows with reasonable certainty that he has a good defense, and he has only been guilty
of carelessness and inattention to his business, but no willful or fraudulent delay, it would be
highly proper even for an appellate court to come to his relief if the lower court refused it. But
when the default has been set aside the case is far different.
In the case at bar, it appears that after the action was brought the defendant employed an
attorney to defend it, and placed the matter in his hands. Certainly this was all the client was
called upon to do. The attorney interposed a demurrer to the complaint, and when this was
overruled, obtained time to answer. At the same time, in another action pending between the
same parties he was given fifteen days to answer after the service upon him of a bill of items.
The showing is that he commenced drawing the answers at once, and in this, and other
matters, was quite busily engaged until April 26th, when he left Austin for Belmont, where he
was employed in the trial of an action before the district court of Nye county, and was
detained there longer then he expected to be, and until after default was entered. He claims to
have been under the impression that he also had fifteen days to answer in this case, after the
service upon him of the bill of items, but it clearly appears that his failure to file the answer in
time was not owing to this. Taken altogether it sufficiently appears from the affidavit, while
not as explicit as it might have been, that the defendant intended, in good faith, to contest its
liability in the case; that the attorney in like good faith intended to file the answer in time, and
had it prepared for this purpose, but he appears to have negligently forgotten when the time
for answering would expire, or believing that he would be able to return from Belmont earlier
than he could reasonably hope to do, he neglected to file it before leaving Austin, but left it in
his office. While at Belmont it occurred to him that the time for answering might be about to
expire, and he immediately made arrangements for having it filed, which was done on May
2d, but after the default had been entered.
Bearing in mind that the statute provides for relieving a party from a default taken against
him through his negligence when the negligence is not inexcusable, does it not appear at once
that a judgment for over five thousand dollars is a rather heavy penalty to pay for such
carelessness as is shown here?
once that a judgment for over five thousand dollars is a rather heavy penalty to pay for such
carelessness as is shown here? While it was negligence, such as is properly punished by the
infliction of terms, it does not seem to be of the kind that should be deemed inexcusable, and
the defendant, consequently, denied any opportunity of making a defense. It was the severest
penalty that could be invoked for the grossest misconduct, and in imposing it in this case we
are of the opinion that the court erred in the exercise of its discretion to such an extent as to
require a judgment of reversal. As presented, the denials of the answer are insufficient, but
are, of course, subject to amendment.
3. Application to open a default should be made immediately. There was apparently an
unnecessary delay in making the motion in this case, and had it appeared that the result of this
would be to defer the trial of the case if the motion was granted, it might have justified the
ruling of the court, but it is affirmatively shown that it did not, as court was not in session
during the time. The order and judgment appealed from are reversed and cause remanded.
Murphy J., dissenting.
While the nisi prius court might, under the circumstances of this case, have set aside the
default, and permitted the defendant to answer, yet I can not say there has been such abuse of
that discretion with which the court is clothed as would justify a judgment of reversal.
The granting or refusal of a motion to set aside defaults has always been held to be a
matter within the sound legal discretion of the lower court, and unless there has been an abuse
of that discretion, it has not been the practice in this court to reverse such decisions. (Howe v.
Coldren, 4 Nev. 172; Harper v. Mallory, Id. 449; State v. Mining Co., 13 Nev. 194; Ewing v.
Jennings, 15 Nev. 381; Garner v. Erlanger, 86 Cal. 60; Underwood v. Underwood, 87 Cal.
523.) The complaint was filed March 1, 1890. On the 5th day of March, 1890, summons was
served on the defendant. On the 14th day of April, 1890, a demurrer was filed, and on the
16th day of April, 1890, the question as to the sufficiency of the complaint was argued and
submitted to the court for its decision, the demurrer was overruled, and the defendant given
fifteen days in which to file its answer.
On the 2d day of May, 1890, the defendant not having filed its answer, the plaintiff by his
attorney had the default of the defendant entered by the clerk and judgment rendered thereon.
On the 21st day of May, 1890, the attorney for the defendant filed and served a notice on the
plaintiff, setting forth that he would on the 25th day of June, 1890, move the court to set
aside the judgment entered by default, on the ground of surprise, inadvertence, mistake and
excusable neglect to file answer herein, and on the ground that the default was taken before
the time for answering had expired. On the 9th day of October, 1890, the motion to open up
the default was argued and submitted, on the affidavit of the attorney for the defendant,
wherein he alleges that the minutes of the court were not in conformity with the order, as
made by the judge thereof, and that he was called away to Belmont, Nye county, where he
was detained in attendance on court longer than he expected to be, and did not return to
Austin until after the default of the defendant had been entered. After argument, the court
denied the motion.
There is no merit whatever in the first point raised by the affidavit, as to the second ground
the absence of the attorney. It appears from the affidavit that he left Austin on the 26th day of
April, 1890, to go to Belmont for the purpose of attending court at that place; that he had
prepared the answer in this case, and left it in his office. There is no reason given why he did
not file the answer before leaving for Belmont.
If the judgment in this case is set aside, it will be on the sole ground of neglect,
carelessness, or mistake of the attorney, and courts have steadily refused to vacate judgments
under such circumstances. In the case of Smith v. Tunstead, 56 Cal. 177, the supreme court
said: An examination of the affidavits impresses us with the conviction that the plaintiffs
were not negligent. But their attorneys were, and parties in this state have in such cases as this
been held not entitled to relief on account of the negligence of their attorneys. Section 68 of
our practice act is copied from the California statute. In the case of People v. Rains, 23 Cal.
128, the attorney for the defendants had prepared a demurrer to file to the amended
complaint, but failed to file it in time, in consequence of a mistake on their part as to the day
on which the time for filing would expire. They, by a miscalculation of time, supposed that
the time would not expire until the day after it did; default was taken, and the court
refused on application to set it aside.
the day after it did; default was taken, and the court refused on application to set it aside. The
rule as above announced is supported by the following cases: Ekel v. Swift, 47 Cal. 619;
Elliott v. Shaw, 16 Cal. 377; Haight v. Green, 19 Cal. 117; Mulholland v. Heyneman, Id. 605;
Babcock v. Brown, 25 Vt. 552; Davison v. Heffron, 31 Vt. 688; Kerby v. Chadwell, 10 Mo.
393; Bosbyshell v. Summers, 40 Mo. 172; Gehrke v. Jod, 59 Mo. 522; Matthis v. Town of
Cameron, 62 Mo. 504; Foster v. Jones, 1 McCord, S. C. 116; Burke v. Stokely, 65 N. C. 569;
Phillips v. Collier, 13 S. E. Rep. 260; Merritt v. Putnam, 7 Minn. 493; Tarrant Co. v. Lively,
25 Tex Supp. 399; Smith v. Watson, 28 Iowa, 218; Jones v. Leech, 46 Iowa, 186; Spaulding
v. Thompson, 12 Ind. 477; Phelps v. Osgood, 34 Ind. 150; Brumbaugh v. Stockman, 83 Ind.
583; Kreite v. Kreite, 93 Ind. 583; Hoag v. Society, 27 N. E. Rep. 438; Parker v. Bank, Id.
650; Welch v. Challen, 31 Kan. 696; Green v. Bulkley, 23 Kan. 130; Kyle v. Chase, 14 Nev.
531; White v. Ryan, 31 Ala. 400; Holloway v. Holloway, 11 S. W. Rep. 233; Fowler v.
Colyer, 2 E. D. Smith 125; Mulhern v. Hyde, 3 E. D. Smith 177; Burger v. Baker, 4 Abb. Pr.
12; Thielman v. Burg, 73 Ill. 293; Shroer v. Wessell, 89 Ill. 114; Gray v. Sabin, 87 Cal. 211;
O'Connor v. Ellmaker, 83 Cal. 452. The reason for the strict enforcement of this rule is, that
the law regards the neglect of the attorney as the client's own neglect, and will give no relief
from the consequences thereof. As said in the case of Foster v. Jones, supra. It is difficult to
foresee all the consequences which might result from permitting a party, after judgment and
execution, to set aside the proceedings against him on the ground of negligence or ignorance
of his attorney. It would very much tend to destroy all the rules of pleadings and produce
endless litigation. In my opinion, the judgment of the district court ought to be affirmed.
By the Court, Bigelow, J., on rehearing.
A rehearing was granted in this case for the purpose of considering whether the defendant
had been guilty of such laches in giving notice of the motion to open the default and
judgment as justified its being overruled.
The default was entered May 2, 1890. On May 21st the notice was given that on June 25,
1890, the motion would be made. The affidavit upon which it was based states that up to that
time no court had been held, and it consequently appeared that the nineteen days' delay
in giving the notice had not caused the loss of any opportunity for the motion to be heard,
or the case to be tried, had it been granted.
that time no court had been held, and it consequently appeared that the nineteen days' delay in
giving the notice had not caused the loss of any opportunity for the motion to be heard, or the
case to be tried, had it been granted. It was in view of this showing that we said that it
affirmatively appeared that the delay in giving the notice had not caused the loss of any
opportunity for the case to be tried. It is now, however, shown by certified copies of the
minutes, that court was in session from May 27th to May 31st, and, presumptively, the
motion could have been heard then had only five days' notice been given. This made a prima
facie showing of such want of diligence as justified the refusal to open the default.
But it is now shown in the same manner that on April 19, 1890, the court adjourned to
June 25, 1890, and apparently, on May 21st, when the notice was given, there was no reason
to suppose it would be in session until then. No objection has been made to these records or
to the time or manner of their production, and we consequently prefer to consider them as
being competent for the purpose for which they have been offered, and to determine the
matter upon its merits.
Under the system prevailing in this state there are no terms of the district court; the courts
are always open, and the sessions are held at the convenience of the judges, and as the
business may require. There is consequently no way in which it can be absolutely determined
when court will be held. As in this instance, although an adjournment had been had to June
25th, there was nothing to prevent an earlier session should anything unexpectedly arise to
require it. But when it has been adjourned to a certain time, this is a notice that a session will
be held then, and, it is fair to presume not until then. Certainly we cannot say that it is want of
due diligence for an attorney to assume that it will not be, and to give notice of the hearing at
that time of any matter he may wish to bring before the court.
The judgment is reversed, with directions to the district court to open the default upon
such terms as may be just and proper in the premises.
Murphy, J., dissenting:
In my opinion the judgment of the district court should be affirmed.
____________
21 Nev. 195, 195 (1891)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
OCTOBER TERM, 1891.
____________
Volume 21
____________
21 Nev. 195, 195 (1891) County of Esmeralda v. State
[No. 1342.]
THE COUNTY OF ESMERALDA, Respondent, v. THE
STATE OF NEVADA, Appellant.
Claims Against CountiesPresentationReimbursement by State.The legislature appropriated money with
which to reimburse the counties for the expenses of a special election on constitutional amendments. A
portion of respondent's claims for such expenses were disallowed by the state board of examiners and suit
was brought to recover the amount. The claims against the county were never submitted to the auditor and
were never paid by the county. Held, that since the county had never paid the claims nor allowed them so
as to make a legal charge of them it could not recover them from the state.
Trenmor Coffin and J. D. Torreyson, Attorney-General, for Appellant.
I. The count commissioners erroneously certified claims for mileage to the full amount
named in the various statutes, both going and coming.
for mileage to the full amount named in the various statutes, both going and coming. The
board of examiners allowed for going only, which was clearly correct.
II. Respondent is not the real party in interest in this case and has no standing in court.
She has not paid any of the claims rejected by the board of examiners. She has not guaranteed
their payment to the claimants. She is in no way liable for their payment.
III. The act of January 19, 1889, under which the expenses were incurred, is in
contravention of section 6, article II, of the constitution, in this that it does not provide for the
proper registration of electors, and the expenses incurred under the act cannot be a proper
charge against either the state or the county.
P. M. Bowler, Jr., District Attorney of Esmeralda county, for Respondent.
I. The general election laws were made applicable to the holding of the special election.
(Bragg v. State, 20 Nev. 443; Stats. of 1889, p. 17, Sec. 12.) If the legislative intent was to
limit the mileage in going only, as did the board of examiners, why were the words and
returning added? It was clearly to provide the payment of mileage both ways.
II. Esmeralda county has the right to maintain this action. The individuals who performed
the services have no such right, because nowhere in the law can be found a fund appropriated
for the payment to individuals, while the appropriations are made for the purpose of paying
the various counties.
III. The act of January 19, 1889, was decided constitutional by this court in State ex rel.
Boyle v. Board of Examiners, in opinion filed August 1, 1890.
By the Court, Belknap, C. J. :
The legislature appropriated the sum of nineteen thousand six hundred and eight-seven
[eighty-seven] dollars and fifteen cents for the purpose of paying the expenses of the various
counties in holding the special election of February 11, 1889, at which certain proposed
amendments to the constitution of the state were submitted. (Stat. 1889, pp. 21, 94.) The
counties were primarily liable for these expenses, but the legislature, for the purpose of
reimbursing them, appropriated, in the first instance, the sum of fifteen thousand dollars.
the sum of fifteen thousand dollars. This appropriation was made before the election was
held. After the election it was found that the sum of fifteen thousand dollars was insufficient,
and the further sum of four thousand six hundred and eighty-seven dollars and fifteen cents
was appropriated. From the fund created by these appropriations the plaintiff was allowed by
the board of examiners and received the sum of one thousand three hundred and fifty-one
dollars and fifteen cents, and has brought this action to recover the further sum of five
hundred and ninety-two dollars and forty cents, which amount was disallowed by the board.
We deem it unnecessary to consider whether the several claims constituting the demand
were allowed for the amounts fixed by the statutes regulating compensation for public
services. The record affirmatively shows that the claims were not submitted to the auditor of
the county for allowance. The failure to so submit them is by the terms of the statutes relating
to the allowance of claims against counties an insuperable obstacle to recovery in this action.
These statutes provide that no demand against a county requiring action by the board of
county commissioners shall be paid until submitted to the county auditor (sections 1950,
1951, Gen. Stat.), and that no suit may be maintained against a county upon a claim unless
such claim shall have been presented to the board of county commissioners and county
auditor for allowance (section 1964). Thus it appears that the steps required by the statutes to
be taken in the allowance of claims were not pursued. The claims were not submitted to the
auditor and were not, therefore, liquidated claims. Not having been so submitted, their
payment by the county was by the express terms of the statute forbidden, and no suit against
the county could be maintained upon them. Upon these facts the county was not liable for
their payment, and, it may be added, has not paid them. The statute under which the claims
are sought to be made a charge against the state was, as before said, adopted for the purpose
of reimbursing the counties their expenses at the special election. But since the county has
neither paid these claims, nor allowed them so as to make them a legal charge against it, it is
clear that no expense has been incurred by the county concerning them, and it cannot,
therefore, recover.
Judgment reversed and cause remanded.
____________
21 Nev. 198, 198 (1891) Higley v. Pollock
[No. 1341.]
CHARLES R. HIGLEY and MARY JANE HIGLEY, Respondents, v.
WILLIAM POLLACK, Appellant.
PracticeMotion to Quash Summons.Appellant moved to quash the summons, on the ground that the copy
served did not show on its face that it was a copy of the original summons. On appeal from an order
denying the motion to quash, the copy complained of was omitted from the record. Held, that its
sufficiency could not be considered on appeal.
IdemReturn on Summons.The mere statement of defendant's attorney that no copy of the summons was
served, will not be allowed to contradict the sheriff's return on the original summons certifying that a true
copy had been served on defendant.
IdemNotice in Summons.The statute provides that in actions arising on contracts for the recovery only of
money or damages, the summons shall contain a notice that on failure to answer, judgment will be taken
against defendant for a specified sum. The summons served on defendant stated that the action was for the
recovery of one thousand eight hundred dollars, for services and for certain property sold to him, which
would more fully appear in the complaint on file, a copy of which would be served with the summons, and
that if he failed to answer, judgment would be taken in accordance with the prayer in the complaint. The
summons did not in itself specify what amount judgment would be taken for on failure to answer. A
certified copy of the complaint was served with the summons and prayed for a judgment for one thousand
eight hundred dollars, for interest, and for costs. Held, that defendant's notice was sufficient.
IdemDefect Not Affecting Substantial Rights.The omission in the notice in the summons of the amount for
which plaintiff will take judgment on failure to answer, when a certified copy of the complaint served with
the summons, states the amount, if it be an error, is not one affecting any substantial right, and the court
should, in every stage of the proceedings, disregard it.
IdemStay of Proceedings on Motion to Quash Summons.A motion to quash summons does not stay
proceedings, or deprive the clerk of the power to enter judgment on a money demand against defendant on
his default.
Appeal from the District Court of the state of Nevada, Lander county.
A. E. Cheney, District Judge.
David S. Truman, for Appellant.
I. After an appearance, either general or special, and answer, demurrer or motion is filed,
it is improper to enter default until after its disposition.
answer, demurrer or motion is filed, it is improper to enter default until after its disposition.
The legal effect of appellant's motion to quash the summons, or notice thereof, was to put the
case in such shape that appellant was entitled to be heard and the plaintiffs to no default.
(Lung Chung v. N. P. Railway Co., 2 W. C. Rep. 88.)
II. The failure of the summons to state in itself the amount for which plaintiffs would take
judgment in the event of defendant's failure to answer, is a failure to substantially comply
with the requirements of the statute. (Sweeney v. Schultes, 19 Nev. 53; Smith v. Aurich, 6
Col. 388.)
Henry Mayenbaum, for Respondents.
I. The notice of motion to quash summons does not specify the papers to be used. (District
Court Rule No. 10.) The district court rules have the force of statutes. (Haley v. Bank, 20
Nev. 410.)
II. A motion does not stay proceedings. The only means to stay proceedings pending a
motion is by order of the court or judge. (Shinn v. Cummins, 65 Cal. 97; Bryan v. Berry, 8
Cal. 134; People v. Loucks, 28 Cal. 68; Jones v. Spears, 56 Cal. 164; Maynard v. Chapin, 7
Wend. 520; Oakley v. Aspinwall, 1 Sanford 694; Goodrich v. Downs, 5 Hill 510; Benedict v.
Lord, 2 How. Pr. 82; Bacon v. Reading, 1 Duer 622; Young v. Brehe, 19 Nev. 383.)
III. A special appearance can only be made for the purpose of objecting to the jurisdiction.
Appellant's motion to continue and stay proceedings is a waiver of the alleged objection to
the summons. The law decides what is an appearance, not the defendant. (St. Louis v.
McBride, 11 U.S.; S. C. Rep. 982; Jones v. Andrews, 10 Wall. 327; Elliott v. Lawhead, 43
Ohio St. 171; Gage v. Maryatt, 9 Mont. 265; Franse v. Armbuster, 28 Nev. 467; Curtis v.
McCullough, 3 Nev. 202; Lake v. Lake, 16 Nev. 363; Sweeney v. Schultes, 19 Nev. 57.)
IV. Appellant's objection to the sufficiency of the notice in the summons is purely
technical and does not affect any substantial right of the parties, and therefore if an error is
one which the court under the statute would disregard at any stage of the proceedings. The
summons in connection with the certified copy of the complaint served on appellant gives
him the full statutory notice. The summons without the aid of the complaint fully notifies
appellant of the amount sued for and for which judgment will be taken. All that the
statute requires is that the summons should state whether judgment for the sum claimed
would be taken by default, i.e., entered by the clerk in contract cases, or whether it would
be taken by application to the court in other cases.
complaint fully notifies appellant of the amount sued for and for which judgment will be
taken. All that the statute requires is that the summons should state whether judgment for the
sum claimed would be taken by default, i.e., entered by the clerk in contract cases, or whether
it would be taken by application to the court in other cases. (3 Estee's Plead. & Forms, S.
3900; 1 Tillinghast & Sherman's N. Y. Practice, 356; People v. Bennett, 6 Abb. Pr. 343;
Albany County v. Classon, 17 How. Pr. 193; King v. Blood, 41 Cal. 314; Shinn v. Commins,
65 Cal. 97; Baxter v. Arnold, 9 How. Pr. 445; Willamette etc. v. Riley, 1 Or. 183; Heinrich v.
Englund, 34 Minn. 395; Kimball v. Castagnio, 8 Colo. 525; Sweeney v. Schultes, 19 Nev.
57.)
This action was brought by the plaintiffs to recover the sum of one thousand eight hundred
dollars, alleged to be due from the defendant for work, labor and services as housekeeper
rendered by Mary Jane Higley, and for two horses sold and delivered by the said Mary Jane
Higley to the defendant. Summons was issued and served with a certified copy of the
complaint on the defendant, by the sheriff of Lander county, in said county, on the 23d day of
June, 1890. On the 2d day of July, 1890, the defendant, by his attorney, appeared and filed the
following notice of motion: Now comes the defendant above named and moves this
honorable court to quash the summons and service thereof on the defendant (and appears for
this purpose only) on the grounds: First. That the copy of the summons, if such it is, fails to
show that it is a copy of the original summons herein issued, and that said copy of summons
which is served on this defendant does not appear on its face to be a copy of the said original
summons issued in this cause by any proper authentication. That said summons issued in this
cause fails to give this defendant any legal or proper notice required according to law.
We cannot consider the first objection raised, because the copy of the summons
complained of is not embodied in the transcript; and the certificate of the sheriff's return
indorsed upon the original summons, which is set out in full in the record, sets forth the facts
that the sheriff did serve the defendant, by delivering to said defendant a true copy of the
summons, attached to a certified copy of the complaint in this action.
The mere statement of an attorney will not be taken to contradict such a return.
The second objection, in our opinion, is not well taken. It is argued by the attorney for the
appellant that the summons is defective, in that it does not conform to the first subdivision of
Sec. 3048, Gen. Stat. Nev., which reads as follows: First. In actions arising on contract for
the recovery only of money or damages, that the plaintiff will take judgment for a sum
specified therein if the defendant fails to answer the complaint. The summons in this case
gives correctly the title of the court, the names of the parties to the action, and notifies the
defendant of the time and place in which he was to appear and answer; or, if he failed to
appear within the time specified in said summons, judgment by default would be taken
against him according to the prayer of the complaint.
The cause of action is stated in the summons as follows: The said action is brought to
recover judgment against you [the defendant], for the sum of eighteen hundred dollars,
alleged to be due from you [said defendant], to said plaintiff, as follows, to-wit: One thousand
five hundred dollars for labor and services and three hundred dollars, the value of two horses
sold and delivered to you at your special instance and requestall of which will more fully
and at large appear in the complaint on file herein, a certified copy of which will be served on
you with this summons. And you are hereby notified that if you fail to appear and answer the
said complaint as above required, the said plaintiff will take default and judgment against you
in accordance with the prayer of said complaint, and for costs of this suit.
The contention of the attorney for the appellant is that the failure to specify the amount for
which judgment would be taken after the word you and before the italicized words, the
summons is defective and should have been quashed, because it did not give the defendant
legal or proper notice as required by law. A proceeding for the price of goods or chattels, and
the price or value of labor is a proceeding to enforce a contract, either express or implied, by
which the defendant is bound to pay for the goods or labor a sum certain by the agreement, or
capable of being reduced to certainty by mere calculation from the elements which the
agreements contain.
This action is therefore on contract and brought for its performance by the payment of a
sum of money which, by its terms, is required of the defendant, and is such a case as falls
within the first subdivision of the statute in relation to what the summons shall contain. The
section of the statute under consideration is a copy of the New York and California statutes.
In New York, civil actions were commenced by the service of summons. A copy of the
complaint was not required to be served with the summons; and the courts in that state have
held that when the summons was served before a copy of the complaint, it was essential for
the pleader to be particularly careful to state in his summons the nature of the relief that he
should demand of the court; or, in other words the pleader would not be permitted to state in
his summons that he would apply to the court for the relief granted under the second
subdivision of section 129 of the New York statute, and when the defendant would examine
the complaint he would find that the prayer thereof asked for the relief granted under the first
subdivision of said section. Under such circumstances, the pleader was required to amend the
prayer of his complaint to conform to the summons, or amend the summons to conform to the
complaint. But we fail to find any well-considered case where the summons and complaint
were served at the same time, and the prayer of the complaint asked for the relief granted
under the proper subdivision of the statute, and the summons set forth that upon the failure of
the defendant to answer, the plaintiff would take judgment in accordance with the prayer of
the complaint, holding such summons to be insufficient.
In the case of Brown v. Eaton, before the supreme court of New York, 37 How. Pr. 325,
Morgan, J., speaking for the court, said: When the summons is served before the complaint,
and contains a notice under the first subdivision of section 129, and the complaint sets out a
cause of action under the second subdivision, it is held by several authorities to be such an
irregularity as to require the court to set aside the complaint on motion of the defendant; and
it seems to be pretty well established that such an irregularity is not cured or waived by a
general appearance in the action. It has been doubted, however, whether the same rule will be
applied when the notice in the summons is under the second subdivision, and the cause of
action in the complaint authorizes judgment, without such application, under the first
subdivision.
application, under the first subdivision. * * * The decisions cited by the counsel are mostly
the individual views of judges at special term, and are by no means uniform or consistent
with each other. If the defendant may be prejudiced by the supposed irregularity, I see no
reason why he may not appear and move to set aside the complaint. If he cannot be prejudiced
by it, there is no reason why he should be heard at all.
It is evident that the defendant cannot be misled by the form of notice in the summons,
when the summons and complaint are served together. The form of the notice in the
summons confers no right upon the plaintiff to enter judgment without an application to the
court, when such application is necessary by the form of the complaint; and when it is regular
to take judgment without such application, it is not irregular to apply for and obtain an order
for judgment. The most that can be said is that it is unnecessary to apply for judgment in such
a case. The defendant is in no way prejudiced by it. But when the summons precedes the
complaint, the defendant may be misled to his prejudice. * * * But as the code expressly
authorizes the summons and complaint to be served together, I do not think the defendant can
rightfully claim that he can appear and say he has been prejudiced, because in contemplation
of law the summons precedes the complaint. The principal object of the summons is to bring
the defendant into court. If the defendant should appear without service of summons it may
be dispensed with altogether. After the defendant has appeared there is an end of the process.
It has become functus officio. All subsequent proceedings are based upon the complaint, and
when they are served together it is a mere fiction to suppose that the summons precedes the
complaint. It is, however, very questionable whether it can be supported as a fiction, for by
the very terms of the notice in the summons the plaintiff refers to the complaint. In the case at
bar the notice is that the plaintiff will apply to the court for the relief demanded in the
complaint; but without attempting to criticize the decisions which maintain such a fiction, or
to deny that it may have some truth to support it, it is quite too harmless to justify the
defendant in resorting to a motion for the purpose of annoying the plaintiff and subjecting
him to costs.
If the correction of the supposed irregularity or variance could be of any benefit to the
defendant, or if he had been misled by it to his prejudice, there would be some ground for
sustaining a motion to set aside the complaint.
could be of any benefit to the defendant, or if he had been misled by it to his prejudice, there
would be some ground for sustaining a motion to set aside the complaint. In my opinion, no
such motion ought to prevail where the summons and complaint are served at the same time,
for the reason that in such a case the complaint alone furnishes the cause or ground of action,
and is the only foundation upon which the action can proceed. All the subsequent proceedings
and pleadings are governed by the form of the action as stated in the complaint, and in no way
by the form of notice contained in the summons. To allow the defendant to overlook the
complaint and resort to the summons for the cause of action, for no purpose except to make a
dilatory and fruitless motion, is to encourage a practice which has already become very
troublesome to parties and very annoying to the courts. Why increase the difficulty by
favoring motions to set aside either the summons or complaint, except in case where it is
apparent that the defendant has been, or may have been, misled to his prejudice by the form
of the summons. The order of the lower court in denying the motion to set aside the
complaint was affirmed, with ten dollars costs.
In the case of McCoun v. Railroad Co., 50 N. Y. 176, there were several hundred actions
before the supreme court, wherein the same question was involved, and the decision in the
above-entitled case was to control in all the others. In each of the summonses the plaintiffs
asked for the relief as granted by the first subdivision of section 129, while the cause of action
stated in the complaints was such as required the relief granted by the second subdivision of
the said section. Allen, J., speaking for the court, said: It is necessarily wholly immaterial,
and cannot, in the nature of things, affect a substantial right of the defendant, whether a
summons is under the first or second subdivision of section 129, when a copy of the
complaint, as was in all the cases before us except six, is served with the summons. The
office of the summons is to bring the defendant into court, to give the court jurisdiction of the
person. * * * This is the effective process to subject the defendant to the jurisdiction of the
court. The subsequent section129directs the insertion of a notice in the summons, in
actions on contract for the recovery of money only, that judgment will be taken for a specified
sum on failure of the defendant to answer; and in other actions, that application will be made
to the court for the relief demanded.
relief demanded. * * * The purpose of the notice required by section 129 is to inform the
defendant of the character of the action and the consequences of a default, that he may
understandingly determine whether the protection and preservation of his rights call for an
appearance and answer. But if the complaint is served with the summons, the defendant has
more full and perfect knowledge of the cause of action and the consequences of a default than
he could get from the summons alone, and if there is an error or defect in the summons it
carries with it the remedy and correction, and an effectual preventive against error by any one.
The objection is, that the notice is that the plaintiff will take judgment for a specified sum,
instead of notice of an application to the court for the relief demanded, or vice versa. It would
be trifling with the rights of suitors, sacrificing substance to the merest form, to hold that the
denial of a motion to set aside the summons and complaint under such circumstances affected
a substantial right of a defendant; and that he was or could be prejudiced by the particular
form of the notice. Upon the merits, so far as it can be said to have merits, the motion was
frivolous. The service of summons with the notice in the form challenged * * * is no cause
for setting aside the summons. The question whether a party in court, by the regular service of
a summons, irregular it may be in form, shall litigate in that suit or upon the service of
another summons, slightly different in form, when he has not been misled, and does not lose
the benefit of any defense he may have had, and when the defenses in the action must be
precisely the same, does not affect any substantial right. I am for a dismissal of the appeal.
Such a disposal of this appeal disposes of over five hundred appeals by this defendant from
orders made refusing applications to set aside the summons and complaint, because the notice
inserted in the summons was not under the right subdivision of section 129, the plaintiffs
being different, but the attorneys in many of the cases the same. To the same effect is the
decision in the case of King v. Blood, 41 Cal. 316, wherein the court said: The error or
defect claimed to exist in the summons is more technical than real. I am unable to discover
that any substantial right of defendants could be affected thereby, or that the judgment should
be reversed on account thereof.
In the case of Kimball v. Castagnio, 8 Colo. 526, it is said: This court has held that the
statute relating to this subjectsections 35 and 37 of the civil codeare mandatory, and that
the process issued must comply therewith; but we do not feel justified in declaring that the
exact language of these statutes must be used. It is, in our judgment, sufficient if there be a
substantial compliance therewith. The purpose of these provisions is to inform the defendant
of the nature of the action, the time for answering, the result in case of failure to answer, etc.;
and if all of these material objects are clearly accomplished by the process, although other
language be used than that of the statute, it would be unreasonable to say that the defendant
might be heard to complain.
Dixon, C. J., speaking for the court in the case of Warren v. Gordon, 10 Wis. 500, said:
There can be no doubt that the summons was irregular. The action was upon a contract for
the recovery of money only. The judgment is also irregular in not having been taken for the
penalty. * * * However, as neither of these irregularities affect the substantial rights of the
appellants, the judgment of the county court must be affirmed. The errors assigned in the
above case were similar to the one under consideration.
Actions are commenced in this state by the filing of a complaint with the clerk of the court
and the issuance of a summons thereon. After the filing of the complaint the defendant may
appear and answer, or demur, thereby waiving the service of summons; but, if the summons is
served, a certified copy of the complaint must be served with it. From the reading of this
section it is clear that the complaint is the foundation upon which the plaintiff bases his cause
of action. The summons is served merely for the purpose of notifying the defendant of the
time, place and court in which he is required to appear, answer or demur, and informs him of
the nature of the cause of action.
In our opinion, the complaint and summons in this case answered all the requirements of
the statute. They contained all the information the defendant could ask for to apprise him of
the precise cause of action which he was called upon to defend, and all the facts a clerk of the
court would require to enable him to enter the judgment in case of a default for the exact
amount; and there is no reason given in this case why the court should be annoyed by the
mere farce of a special appearance of an attorney asking to have the summons set aside,
because in the notice of the relief prayed for in the summons the figures $1,S00 were
omitted, when the attorney then held in his hands a certified copy of the complaint
attached to that summons wherein it was stated: "Wherefore plaintiff demands judgment
against said defendant for the sum of eighteen hundred dollars, U.S. gold coin, and
interest at the rate of seven percent. from date of judgment until paid, and costs of suit."
pearance of an attorney asking to have the summons set aside, because in the notice of the
relief prayed for in the summons the figures $1,800 were omitted, when the attorney then held
in his hands a certified copy of the complaint attached to that summons wherein it was stated:
Wherefore plaintiff demands judgment against said defendant for the sum of eighteen
hundred dollars, U.S. gold coin, and interest at the rate of seven percent. from date of
judgment until paid, and costs of suit. And the summons notified the defendant that, upon
his failure to answer as required by the summons, default and judgment would be taken
against him in accordance with the prayer of the complaint. Besides, we cannot see how the
case fails to come completely within section 3093, Gen. Stat., which reads: The court shall
in every stage of an action disregard any error or defect in the pleadings or proceedings which
shall not affect the substantial rights of the parties, and no judgment shall be reversed or
effected by reason of such error or defect.
If there was a defect in the summons, as claimed by the appellant, it could not affect a
substantial right, and the court must in every stage of proceedings disregard such errors or
defects. The defendant could not suffer nor be in any wise injured by the omission of the
figures 1,800 in the closing part of the summons. In the body of the summons there was a
statement of the cause of action, and the amount claimed to be due. The complaint contains a
cause of action, and the defendant was informed thereby of every fact necessary for him to
know in order to protect himself against an unfounded claim, if it be such.
While it is advisable in the issuance of the summons that the statute should be literally
complied with, nothing short of a substantial departure therefrom can properly be held to be
fatal to a proceeding under it. The provisions of a statute are to be construed with a view to
carry into effect its object, and to promote justice, and not to harass and annoy litigants and
courts by entertaining frivolous or technical objections, when the same do not in any manner
affect the substantial rights of the parties. The recent decisions are to the effect that a
substantial compliance with this particular statute is all that is required. (Bewick v. Muir, 23
Pac. Rep. 389; Clark v. Gunn, 27 Pac. Rep. 375; Bucklin v. Strickler, 49 N. W. Rep. 371;
McPherson v. Bank, 12 Neb. 202; Keybers v. McComber, 67 Cal.
399; Shinn v. Cummins, 65 Cal. 98; White v. Iltis, 24 Minn. 46; Kimball v. Castagnio, 8
Colo. 525; Warren v. Gordon, 10 Wis. 499; Barndollar v. Patton, 5 Colo. 49.)
Since writing the above, the decision in the case of Behlow v. Shorb, 27 Pac. Rep. 546,
from California, has been received, and is in all respects identical with the question we have
passed upon. In that case the court said: The first point made for reversal is that the court
erred in refusing to quash the summons. It is said the notice in the summons was insufficient
because it did not state the amount for which judgment would be taken in case the defendants
failed to appear and answer, as required by section 407, subd. 4, of the code of civil
procedure. We think the summons in effect complies with the requirements of the statute.
The motion to quash the summons is without merit.
On the 2d day of July, 1890, the attorney for the defendant filed a notice of motion to set
aside the attachment. It appears that he abandoned the motion, as no action has been taken
upon it. On the same day he filed his notice of motion to quash the summons. On the 4th day
of October, 1890, the default of the defendant was entered by the clerk of the court. On the
10th day of October, 1890, court was in session in Lander county, and the court made the
following order, as appears from the minutes thereof: On motion it was ordered that all
proceedings in this cause be stayed until further order of this court. There is a dispute
between the attorneys in the case as to who made the motion for a continuance; but from the
views we take of the questions involved it is immaterial at whose request the order was made,
any further than to say that we think that it would be much more to the credit of the attorneys
if they would confine themselves to presenting the merits of the case and not branch off into
side issues. On the 6th day of March, 1891, the defendant, by his attorney, filed a notice of
motion to open the default, on the ground and for the reason that the default had been entered
while the motion to quash the summons was pending and undisposed of. Upon the hearing of
the motion the court refused to open said default, and denied the motion to quash the
summons. We think the notice of motion to quash the summons on the ground stated did not
stay proceedings or deprive the clerk of the court of the power to enter the default of the
defendant when the time for answering had expired.
of the defendant when the time for answering had expired. Our statute reads: If the defendant
fails to answer within the time required by the summons, the clerk of the court, upon request
of the plaintiff, shall enter his default; and, if it is a money demand, he can enter a judgment
for the amount, showing conclusively that the only appearance that can prevent a default from
being entered is by demurrer or answer, or by an order of court, or the agreement of parties
staying proceedings. In some states the statute reads. Answer, demurrer or motion. Such is
the Colorado statute.
Our statute is copied from the California practice act. In that state the supreme court, in the
case of Shinn v. Cummins, 65 Cal. 98, said: The pendency of the defendant's motion to
dismiss, vacate, and set aside the pretended service of summons and copy of complaint did
not extend the time specified in the summons for answering the complaint. When the default
was entered there had been no appearance in the case by the defendants. In the case of
McDonald v. Swett, 76 Cal. 258, it is said: It was not sufficient ground for setting aside the
default that it was entered pending the hearing of the motion to dismiss, and we cannot hold
that the facts presented to the court below were of such a character as to make the denial of
the motion to set it aside an abuse of discretion. The motion to dismiss the action did not
extend the time to answer.
The action of the judge of which the appellant complains was right. There having been no
such appearance as the statute requires on the part of the defendant in the action, his default
was properly taken, and he made no showing of merit on the hearing of the motion to vacate
and set aside the proceedings. The judgment of the district court is therefore affirmed.
Bigelow, J., I concur in the judgment.
____________
21 Nev. 209, 209 (1891) State v. Charley Lung
[No. 1343.]
THE STATE OF NEVADA, Respondent, v. CHARLEY LUNG,
Appellant.
Criminal LawRapeConstructive Force.In the crime of rape, the force necessary to complete the offense
may be constructive. Such constructive force exists where sexual intercourse is had with a woman who is
unconscious or mentally unable to fairly comprehend the nature and consequences of the sexual act.
IdemConsent Induced by FraudWhen the woman's consent to the sexual act is induced by fraud it is not
rape.
IdemAttempt to Commit Rape by Constructive ForceElements of Such Crime.To constitute the crime of
attempt to commit rape by the use of constructive force, the defendant must have intended to either destroy
the woman's power of resistance by the administration of liquors or drugs, or else to take advantage of the
fact that she was already in a condition in which either the mental or physical ability to resist is wanting.
IdemCharacter of an Act to Constitute an Attempt to Commit a Crime.An act to constitute an attempt must
go further than mere preparation. It must be a direct movement towards the commission of the offense after
the preparation is made and must be adequate to its commission.
IdemAct, When Insufficient to Constitute an Attempt to Commit Rape.The attempted administration of
cantharides to a woman for the purpose of having sexual intercourse with her, but without any offer or
effort at sexual connection, is mere preparation, is not an act adequate to the commission of the crime, and
does constitute an attempt to commit a rape upon her.
IdemArgumentative Charges in Indictment.A charge in an indictment that the defendant attempted to
commit a crime only argumentatively charges that he intended to commit it, and is sufficient. (Syllabus by
Bigelow, J.)
Appeal from the District Court of the state of Nevada, Humboldt county.
M. S. Bonnifield, for Appellant.
I. In an indictment for an attempt to commit a crime it is essential to aver that the
defendant did some act which directed by a particular intent, to be averred, would have
apparently resulted in the ordinary and likely course of things in a particular crime.
(Wharton's Crim. Law, 9th Ed., Vol. 1, p. 192.)
II. The indictment does not charge that the alleged mingling and mixing of a certain
quantity of cantharides with certain coffee was done with intent to ravish or carnally know the
complainant, forcibly and against her will. The essence of a criminal offense is the wrongful
intent, without which it can not exist. (State v. Gardner, 5 Nev. 378.) The crime must be
directly and positively charged. (People v. Logan, 1 Nev. 110.)
III. In attempts the intent must be specific to do some act which, if it were fully
performed, would constitute a substantive crime.
which, if it were fully performed, would constitute a substantive crime. (1 Bishop Crim. Law,
6th Ed. 731.) An attempt is committed only when there is a specific intent to do a particular
crime. It can not be founded on general malevolence.
IV. In attempts the evil intent and the act must be simultaneous. There is no allegation in
the indictment of intent to ravish or carnally know connected with the act of mixing the
cantharides with the coffee, or otherwise. (1 Bishop Crim. Law, 771.)
V. No court can say that the act alleged in the indictment would have even apparently
resulted in the crime of rape in the ordinary and likely course of events, but for collateral
intervention. The indictment is fatally defective in the view of those authorities which hold
most strongly against the accused in cases of attempt. The act charged is not apparently
adapted to result in the crime of rape.
VI. There is a wide difference between the preparation for an attempt to commit a crime
and the attempt itself. The preparation consists in devising or arranging the means or
measures necessary for the commission of the offense. The attempt is the direct movement
towards the commission of the offense after the preparations are made. The attempt
contemplated by the statute must be manifested by an act or acts which would end in the
consummation of the particular substantive offense, but for the intervention of circumstances
independent of the will of the defendant. (People v. Murray, 14 Cal. 160.) If the first act be
merely attempted, it will not constitute an offense. (Commonwealth v. Gratton, 3 Crim.
Defenses 675.)
James D. Torreyson, Attorney General, and E. L. Williams, District Attorney of Humboldt
county, for Respondent.
I. In crimes which require force as an element in their commission, there is no substantial
difference between an assault with intent and an assault with attempt to perpetrate the
offense. (Johnson v. State, 14 Ga. 59.) The word attempt signifies both the act and the
intent with which the act is done. (Cunningham v. State, 49 Miss. 685, 701; Bullock v. State,
13 Ala. 416; Hart v. State, 38 Tex. 382.) It is sufficient if the means employed are apparently
sufficient to accomplish the act intended. If the act was in the direction of the commission of
the offense, it is criminal, although insufficient to accomplish the purpose.
the offense, it is criminal, although insufficient to accomplish the purpose. (People v. Lawton,
56 Barb. 126; Com. v. Jacobs, 9 Allen (Mass.) 274; Com. v. McDonald, 5 Cush. 365.)
II. The indictment taken as a whole alleges clearly that defendant attempted to commit the
crime of rape by administering cantharides to the complaining witness, and that he was
intercepted and prevented in the accomplishment. The offense with which the defendant is
charged is complete. If the act when completed would have constituted the crime of rape, then
the attempt is complete.
The defendant is charged with an attempt to commit rape. Rape is defined by our statute to
be the carnal knowledge of a woman forcibly and against her will. Force is a necessary
ingredient in the commission of the offense, except where committed upon a child under the
age of consent. (State v. Pickett, 11 Nev. 255.) The only qualification to this rule is that the
force may be constructive. (Lewis v. State, 30 Ala. 54.) This constructive force has been held
to exist where the defendant had violated the woman's person after she became insensible
from intoxicating liquors given her by him, for the purpose of exciting her and then having
sexual connection with her (Queen v. Camplin, 1 Cox, Crim. Cas. 220; 1 Car. & K. 746; 1
Denison, Crim. Cas. 89); where the woman was so drunk as to be insensible, although the
liquor was not given her by the defendant (Com. v. Burke, 105 Mass. 376); where she was in
such deep slumber as to be unconscious of the act (Reg. v. Mayers, 12 Cox, Crim. Cas. 311);
and where her powers of resistance had been overcome by the administration of ether or
chloroform. (2 Whart. & S. Med. Jur., 3d Ed. Sects. 245, 267.) In McQuirk v. State, 84 Ala.
435, it is said: It is true that the element of force need not be actual, but may be constructive
or implied. If the woman is mentally unconscious from drink or sleep, or from other cause is
in a state of stupefaction, so that the act of the unlawful carnal knowledge on the part of the
man was committed without her conscious and voluntary permission, the idea of force is
necessarily involved in the wrongful act itselfthe act of penetration. But even in cases of
this kind the intent to use force, if necessary to accomplish the offense, is essential to
criminality.
Whether intercourse with a non-resisting or consenting idiotic or insane woman is rape
depends upon her capacity to understand the nature of the act (People v. Cornwell, 13 Mich.
433); or, as stated in Reg. v. Barrett, 12 Cox, Crim. Cas. 498; upon the possession by her of
will-power with which to either consent or refuse. Fraud, as by personating the woman's
husband (Rex v. Jackson, Russ. & R. 487; State v. Brooks, 76 N. C. 1), or where she consents
to the act under the belief, fraudulently induced by the defendant, that it is necessary medical
treatment (Don Moran v. People, 25 Mich. 356), does not supply the want of force. The sum
of the cases seems to be that to constitute rape, where there is no force used, the woman must
have been unconscious, or unable to fairly comprehend the nature and consequence of the
sexual act. It must necessarily go this far, or else there is no distinction between rape, where
the force used is constructive, and seduction. Anything which merely excites the woman's
passions, leaving her at the same time in the full possession of her mental and physical
powers, capable of comprehending the nature of the act, and of exercising her own volition in
the matter, is classed rather among the arts of the seducer than the weapons of him who
would destroy female virtue by force.
In Queen v. Camplin, supra, the prisoner had given the woman intoxicating liquors for the
purpose of exciting her, and thereby inducing her to consent to his advances. Failing in this,
she finally became insensible, and he then violated her person. This was held to be rape; but
only because he had taken advantage of her unconscious condition. A careful study of the
case shows that had he succeeded in inducing her to consent, although the consent was
obtained through the liquors given her, it would not have been so held. In People v. Royal, 53
Cal. 62, the defendant had practiced manipulations upon a girl of sixteen, until she was, as
she testified, so dull and stupid as to be unconscious of the nature of the act of sexual
intercourse. This was held not to be rape.
As an attempt to commit a crime can only be made under circumstances which, had the
attempt succeeded, would have constituted the entire substantive offense (1 Bish. Crim. Law,
Secs. 731, 736; State v. Brooks, 76 N. C. 1), the result which we gather from these principles
is, that for a man to be guilty of the crime of an attempt to commit rape, he must have
intended to use the force necessary to accomplish his purpose, notwithstanding the
woman's resistance, or in the case of constructive force, to either destroy her power to
resist him by the administration of liquors or drugs, or to take advantage of the fact that
she was already in a condition in which either the mental or physical ability to resist is
wanting.
intended to use the force necessary to accomplish his purpose, notwithstanding the woman's
resistance, or in the case of constructive force, to either destroy her power to resist him by the
administration of liquors or drugs, or to take advantage of the fact that she was already in a
condition in which either the mental or physical ability to resist is wanting.
In addition to this, there must have been some act done which, in connection with this
intent, constitutes the attempt. There is a distinction, sometimes difficult to draw, between
this act and mere acts of preparation, or acts which are not so closely connected with the
substantive crime intended as to constitute an attempt. (1 Whart. Crim. Law, Sec. 180.) For
instance, in People v. Murray, 14 Cal. 159, it was held that declarations of an intent to enter
into an incestuous marriage, followed by elopement for the purpose and sending for a
magistrate to solemnize the ceremony, were mere acts of preparation, and did not constitute
an attempt to commit the crime. The court says: Between preparation for the attempt and the
attempt itself, there is a wide difference. The preparation consists in devising or arranging the
means or measures necessary for the commission of the offense; the attempt is the direct
movement towards the commission, after the preparations are made. In U.S. v. Stephens, 8
Sawy. 116, the defendant had attempted to purchase liquors in San Francisco for the purpose
of introducing them into Alaska. This was held mere preparation, and not an attempt to
introduce them into Alaska. In State v. Colvin, 90 N. C. 717, it is said: It is essential that the
defendant should have done some acts intended, adapted, approximating, and in the ordinary
and likely course of things, would result in the commission of the particular crime; and this
must be averred in the indictment, and proved. In Kelly v. Com., 1 Grant, Cas. 484, the
defendant had been convicted of murder, charged to have been perpetrated in an attempt to
commit rape. The defendant and others had unlawfully entered a house, in the night time, in
which a woman of loose character lived, and in a fight which ensued the father of the woman
was killed. In reversing the conviction the court held that entering a house with intent to
commit a rape therein did not constitute an attempt to do so. That the attempt at rape had not
yet been made. It is there said: The court should have instructed the jury that acts are
necessary to constitute an attempt, and that an attempt to commit a rape is an ineffectual
offer, by force, with intent to have carnal connection."
a rape is an ineffectual offer, by force, with intent to have carnal connection. The overt act
which constitutes an attempt must be one which manifests an intention to commit the crime.
(Cunningham v. State, 49 Miss. 685.) A man's intentions must be judged by his acts. In
attempts his act must have been one which, under all the circumstances, manifests an
intention to commit that particular offense. (1 Whart. Crim. Law, Sec. 176.) It is essential,
too, that the act of endeavor should be intrinsically adapted to effect the purpose, and that the
court and the accused may see that it is so adapted, it should be specifically stated in the
indictment. (State v. Wilson, 30 Conn. 504.)
The specific act charged against the defendant in the indictment in the case at bar, is that
of mixing cantharides in some coffee which he knew a certain woman was about to drink.
There is no direct allegation that this was done with intent to commit rape. It is argued,
however, that as it is alleged that it was done in an attempt to commit rape, and an attempt
necessarily includes an intent to commit the crime, it follows that the intent is sufficiently
stated. At the best, this is merely an argumentative statement of the fact, which is not
permissible in an indictment. (People v. Logan, 1 Nev. 110.) Whether certain facts constitute
an attempt to commit crime is not only a question of law, but one that is often intricate and
difficult of solution. These facts must be stated in the indictment, so that the court may
determine whether or not they constitute an offense. In State v. Wilson, in construing a similar
indictment, the court uses this language: If it be said that the words attempt to steal' imply it
[the intent] sufficiently, the conclusive answer is that they equally imply an overt act of
endeavor, for that is equally an element of an attempt; and if either element of the offense
may be left to implication, both may be, and a general averment of an attempt to steal or to
rob, or other attempt, would in such cases be sufficient. (30 Comm. 504.)
In Randolph v. Com., 6 Serg. & R. 397, it is said: This mode of charging a thing by way
of argument, and not directly, will not do. To say that a man made an attempt is very
uncertain language. We cannot pretend to say what it is that the defendant is charged with
doing; and without knowing that, we cannot determine whether what he did was an indictable
offense. For like rulings upon indictments for an assault with intent to commit crime, see
State v. Ross, 25 Mo. 426; State v. Martin, 3 Dev. 329;
with intent to commit crime, see State v. Ross, 25 Mo. 426; State v. Martin, 3 Dev. 329;
People v. Marshall, 14 Ala. 411.
The indictment is also insufficient in that it does not appear that the act was adequate,
approximate and sufficient to constitute the offense of which he was convicted.
Cantharides, or Spanish fly, is classed with the irritant poisons, such as arsenic, the acids,
corrosive sublimate, etc., and is capable of producing fatal results. The first symptoms are
nausea, vertigo, and a burning sensation in the mouth and throat, followed sometimes by
irritation in the genital organs. There is nothing about it in the nature of a narcotic or an
anaesthetic. (2 Whart. & S. Med. Jur. Secs. 523, 524; Tayl. Pois. 576.) Except as an effect of
the sickness produced, it leaves a person in the full possession of his faculties. It can produce
no such condition of mind or body as we have seen is necessary to constitute the constructive
force in rape. While the act was dastardly, and well deserves punishment, it cannot, as an
attempt to commit rape, be distinguished, in principle, from that of giving the liquor in Queen
v. Camplin, or the manipulation in People v. Royal. It was not adequate to bring about that
state of affairs which, had he succeeded in having carnal intercourse with the woman, would
have constituted rape. There was no offer or attempt to have connection with her, either by
force or otherwise, nor is it logically inferable from the act that he then and there intended to
violate her person. Possibly he intended to have connection with her subsequently, and
believed that the operation of the drug would materially assist him in accomplishing his
purpose, by inducing her to consent; but this, if successful, would fall far short of rape. So far
the only attempt was to administer the cantharides. The attempt to rape, even if intended, had
not yet begun.
Much that has been already said applies also to the evidence, which, in addition to that
concerning the attempted administration of the cantharides, which she did not take, is simply
that some time before he had said he would have carnal intercourse with her. There is still no
logical connection between the act and the ultimate intent sought to be charged. It does not
indicate that he then and there intended to carnally know her by force, or was then engaged in
an attempt to so know her by first destroying her power to resist such an attempt. Whether if
there was a drug which, while leaving a woman in the full possession of all her other
faculties, would create in her an uncontrollable sexual appetite, its administration by one
who intended to have intercourse with her, while under its influence, would constitute an
attempt to rape, need not be considered.
possession of all her other faculties, would create in her an uncontrollable sexual appetite, its
administration by one who intended to have intercourse with her, while under its influence,
would constitute an attempt to rape, need not be considered. Such a case has never arisen.
Probably there is no such drug. At any rate, cantharides will not produce such a condition.
While, from a knowledge that it will irritate the genital organs, and in ignorance of its
dangerous properties, it has frequently been employed for the purpose of exciting the sexual
propensities in females, in no case that we have found has it been held, or even suggested,
that his administration constituted an attempt at rape. In Reg. v. Hanson, 2 Car. & K. 912, and
Queen v. Walkden, 1 Cox, Crim. Cas. 282, its administration was held to be no offense; in
Reg. v. Button, 8 Car. & P. 573, and Com v. Stratton, 114 Mass. 303, to be an assault; and in
People v. Carmichael, 5 Mich. 10, under a statute against the administration of poison with
intent to injure another, to be a felony. In the latter case the defense was that the cantharides
had been given for the purpose of exciting the woman's passions so that the defendant could
the more easily persuade her to have sexual intercourse with him (which would constitute
seduction, another statutory offense in Michigan), and not with intent to injure her. But the
court held that as seduction would be one kind of injury, the mere fact that the drug had
caused an injury different from that intended, was no defense. In California, where the
statutory definition of rape has been considerably enlarged, it still only includes cases where
resistance is prevented by the administration of intoxicating, narcotic or anaesthetic
substances. Judgment reversed.
____________
21 Nev. 218, 218 (1892)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
APRIL TERM, 1892.
____________
Volume 21
____________
21 Nev. 218, 218 (1892) State v. Beard
[No. 1350.]
THE STATE OF NEVADA ex rel. L. A. DUNKLE,
Appellant, v. W. S. BEARD, Respondent.
Statutory Construction-General and Special Statutes. In 1891 the legislature enacted a general statute,
revising, codifying, and repealing the previous revenue laws of the state. Section 133, providing that
sheriffs may retain six per cent. of the proceeds of each license sold, is substantially an amendment of
section 85 of the revenue law of 1885, which also provided for sheriffs' compensation. In 1889 the
legislature passed a special and local act limiting the compensation of the sheriff of Eureka county to an
annual salary of four thousand dollars, for any and all services and ex-officio services of every kind and
character by him rendered. Held, that the general act of 1891 did not repeal or modify the special and local
act of 1889.
Application by the State ex rel. L. A. Dunkle, as sheriff of Eureka county, for a writ of
mandate to compel W. S. Beard, as auditor of said county, to draw a warrant in favor of
the relator for three hundred and thirty-three dollars and thirty-three cents, as salary due
him for October, 1S91.
21 Nev. 218, 219 (1892) State v. Beard
as auditor of said county, to draw a warrant in favor of the relator for three hundred and
thirty-three dollars and thirty-three cents, as salary due him for October, 1891.
The relator as license collector of said county had collected licenses amounting to two
thousand seven hundred and eighty-one dollars and ninety-nine cents, of which he had failed
to pay into the treasury one hundred and sixty-six dollars and ninety-two cents, which he
claimed to retain as commissions for collection.
The auditor refused to draw a warrant except for the sum due after deducting said
commission.
Thomas Wren, for Appellant.
I. Section 133 of the act of 1891 repeals so much of sections one and two of the act of
1889 as relates to the compensation of the sheriff of Eureka county as ex-officio license tax
collector. Under section 133 of the act of 1891 appellant is entitled to deduct from the gross
amount collected by him six per cent. as compensation. A statute is repealed by the enactment
of another in conflict with or repugnant to it. (U.S. v. Barr, 4 Saw. 254.) When a statute is
plain and unambiguous the legislature must be understood to mean just what it has expressed.
In such a case there is no room for construction. (Brown v. Davis, 1 Nev. 409; Fitch v. Elko
County, 8 Nev. 271; Lewis v. Doron, 5 Nev. 411.)It is the duty of courts to ascertain what the
legislature had in view in enacting statutes. (Odd Fellows Bank v. Quillen, 11 Nev. 109; V. &
T. R. R. Co. v. Lyon County, 6 Nev. 68; Heydenfeldt v. Daney G. & S. M. Co., 10 Nev. 313;
Thorpe v. Schooling, 7 Nev. 15.)
II. There is no analogy between the case of State ex rel. Love and the case at bar.
Peter Breen, for Respondent.
I. The general scope of the revenue act of 1891 was to provide revenue for the state of
Nevada, etc., and section 133 of that act (section 1161 of the old revenue act) was retained to
comply with article 4, section 17 of the constitution of this state. (State ex. rel. Love v.
Commissioners of Elko County, Pac. Rep. June 12, 1890.)
II. When there are two acts, the one relating exclusively to a certain object, and the other
but incidentally touching on that object, the former act must govern.
21 Nev. 218, 220 (1892) State v. Beard
that object, the former act must govern. (Dobbins v. Supervisors of Yuba County, 5 Cal. 414.)
A general enactment providing for a certain sum to an officer in full for his official services is
not repealed or changed by a subsequent enactment imposing additional duties upon the
officer and providing for a percentage on certain funds. (La Grange v. Cutler, 6 Ind. 354; St.
Martin v. New Orleans, 14 La. Ann. 113.)
The question involved in this appeal is whether the relator, as sheriff of Eureka county, is
entitled to retain the commissions provided for in section 133 of the revenue law of 1891 for
the collection of licenses. (Stats. 1891, 182.)
In 1889 (Stats. 1889, 80) the legislature provided that the sheriff of that county should
receive for his services to the county an annual salary of four thousand dollars. Section 2 of
the act provides that this salary shall be the only compensation allowed or paid for any and all
services and ex-officio services of every kind and character rendered by said officer. This act
applies only to Eureka county, and in its application is a special and local act. The act of 1891
is a general statute revising, codifying and repealing the revenue laws previously in force in
the state. Section 133 of the act, which provides in general terms that the sheriff may retain as
compensation for the collection of licenses six per cent. of each license sold, is substantially
an amendment of section 85 of the previous revenue law (Gen. Stats. Sec. 1161), which also
provided for the sheriff's compensation, and which was in force when the Eureka salary law
of 1889 was enacted. That after the passage of the latter act, and until the re-enactment of the
revenue law in 1891, the sheriff of Eureka county was not entitled to this commission is
admitted, and is absolutely clear. Did the legislature intend by this re-enactment to restore it
to him? To our minds it is plain that they did not, and this intention, if discoverable under the
rules established for the interpretation of statutes, must control.
One of these rules is that a general statute, without negative words, will not repeal the
particular provisions of a former one, unless the two acts are irreconcilably inconsistent. In
considering this rule in Sedg. on Stat. Const. 98, the author says: The reason and philosophy
of this rule 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."
21 Nev. 218, 221 (1892) State v. Beard
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.
Mr. Bishop states it thus: Ordinarily, if there are a general statute and one local or special
on the same subject in conflicting terms neither abrogates the other, but both stand together,
the former furnishing the rule for the particular locality or case, the latter for the unexpected
place and instances. And it is immaterial which is the later in date. (Bish. Writ. Laws, Sec.
112b.) The cases in which this principle has been applied are numberless.
In Williams v. Pritchard, 4 T. R. 2 (decided in 1790), an act of parliament had authorized
persons to embank portions of the soil under the river Thames, and had declared that such
land should be exempt from taxation. Afterwards the land tax act by general terms provided
that all the land in the kingdom should be taxed, but it was held that this did not include the
land which had been previously exempted.
In Blain v. Bailey, 25 Ind. 165, it was held that an act exempting a certain class of property
from municipal taxation is not repealed by a subsequent statute giving cities the power to tax
all property within their limits. The two acts are to be construed together; the former as
creating an exception to the general terms of the latter.
In Board v. Cutler, 6 Ind. 354, it appeared that the legislature had passed an act allowing
the auditor of Lagrange county a salary of seven hundred dollars a year, which was to be in
full satisfaction for all services which he might perform as such officer. Subsequently new
duties in connection with the school fund were placed upon the auditors, and as compensation
for these a commission was allowed. It was held that these acts evinced no intention that the
auditor of Lagrange county should have these commissions in addition to his salary, but that
they were payable generally to the other auditors in the state.
In People v. Quigg, 59 N. Y. 88, it is said: Laws, special and local in their application, are
not deemed repealed by general legislation, except upon the clearest manifestation of an
intent by the legislature to effect such repeal, and ordinarily an express repeal by some
intelligible reference to the special act is necessary to accomplish that end."
21 Nev. 218, 222 (1892) State v. Beard
eral legislation, except upon the clearest manifestation of an intent by the legislature to effect
such repeal, and ordinarily an express repeal by some intelligible reference to the special act
is necessary to accomplish that end. State ex rel. Love v. Elko Co., 21 Nev. 19, is also in
point, as holding that an amendatory act passed for one purpose, but which upon the point in
question merely repeats the language of the amended act, will not be held to repeal or
override another act which was intended to establish a different rule from that contained in
the original act. That the same principle is applicable to acts which revise and repeal former
acts, as does the revenue law of 1891, as well as acts which in terms amend former ones, see
Bain v. Bailey, supra; Dutcher v. Crowell, 5 Gilman 445. In the former case it is said: Now,
we cannot suppose that the legislature, by re-enacting a provision in the same language which
was employed in a repealed statute, intended to impart to it a wider scope, or other meaning
than that which the same words were previously intended to import, especially when the
effect would be to accomplish what is not favored in lawthe repeal of another statute by
implication. It is unnecessary, however, to multiply authorities further. It is sufficient to say
that it clearly appears that the legislature of 1891, in revising and repealing the former
revenue laws, did not have in mind and did not intend in any way to repeal or modify the act
specially applicable to the salaries of the officers of Eureka county. Abundant scope is left for
the operation of section 133 of the revenue law, when it is held to apply only to the sheriffs of
other counties who are not paid salaries in lieu of all other compensation.
The judgment is affirmed.
____________
21 Nev. 222, 222 (1892) State v. Shaw
[No. 1344.]
THE STATE OF NEVADA, Appellant, v. D. S. SHAW et
als., Respondents.
PracticeOrder Changing Venue not Appealable.An order changing the place of trial is not appealable but is
properly brought before the court on an appeal from the judgment as an intermediate order involving the
merits and necessarily affecting the judgment.
IdemChange of VenueDelinquent Tax Suits.The provisions of the practice act governing change of place
of trial are not applicable to actions to recover delinquent taxes.
21 Nev. 222, 223 (1892) State v. Shaw
AssessmentSitus of Taxable Property.Where cattle are bred, born, branded and raised in a certain county,
their habitat is in such county, and they are assessable there, notwithstanding some of them occasionally
wander into other counties, or are driven temporarily into other counties, and also notwithstanding the
home ranch of their owner is situate in another county and they are managed and controlled from such
home ranch.
Rives & Judge, and Thomas H. Wells, for Appellant.
I. The court erred in not remanding the cause from Eureka county to Nye county, the
county in which the real estate defendant is situated, for trial upon appellant's motion, the
latter being the county in which the cause was properly triable. (Gen. Stats. 1105.)
II. An order of court changing or refusing to change the place of trial is not an appealable
order under the statute.
III. The situs of personal property for the purposes of taxation is not in all cases governed
and controlled by the domicile of the owner, as was decided in the lower court. (Barnes v.
Woodbury, 17 Nev. 385; People v. Niles, 35 Cal. 286; National Bank v. Smith, 65 Ill. 54;
State v. Falkinburge, N. J. L. 3 Green's 327.)
Peter Breen and Thos. Wren, for Respondent.
I. The appeal should have been from the order changing the venue from Nye county to
Eureka county as such order is an appealable one. (Gen. Stats. 3353; Williams v. Glasgow, 1
Nev. 533; Table Mountain Co. v. Waller's Defeat Co., 4 Nev. 218.)
II. The statute provides that suits for taxes may be commenced in the county where the
assessment is made. It however does not deprive defendants in tax cases of the right to have
the venue changed upon the ground that an impartial trial cannot be had in the county in
which the action is commenced, nor upon the further ground that the convenience of
witnesses and the ends of justice would be promoted by the change.
III. The judgment of the court below is amply sustained by the evidence, and this case is
similar to that of Barnes v. Woodbury, the decision in which sustains respondent's
position in the case at bar.
21 Nev. 222, 224 (1892) State v. Shaw
the evidence, and this case is similar to that of Barnes v. Woodbury, the decision in which
sustains respondent's position in the case at bar.
The respondent objects to the consideration of the order changing the place of trial from
Nye county to Eureka county, upon the ground that such an order can only be reviewed upon
a direct appeal therefrom. Under our present practice act, however, such an order is not
appealable. (Gen. Stat. Sec. 3352.) It is properly brought before the court upon an appeal from
the judgment, under section 3360, as an intermediate order involving the merits and
necessarily affecting the judgment. When Table Mountain G. & S. Min. Co. v. Waller's
Defeat S. Min. Co., 4 Nev. 218, was decided, the statute made such orders appealable. The
objection is therefore untenable.
2. After careful consideration, we are of the opinion that the sections of the practice act
providing for a change of the place of trial are not applicable to actions to recover delinquent
taxes. Such an action is against both the personal defendant and the real estate assessed. As to
the latter, it is an action in rem to enforce a lien for the taxes. Summons is served upon it, and
all persons having any interest in it must without further notice come in and make defense, or
they will be precluded from so doing. For the venue for such an action, title 2 of the practice
act makes no provision except the general one in section 20, that all other cases not
previously enumerated shall be tried in the county where the defendant resides. In tax actions
one of the defendantsthe real estatemust always be situated where the assessment is
made, and where Gen. Stats. Sec. 1105, provides that the action may be brought. The same
section further provides that the jurisdiction of the court shall be determined solely by the
amount of delinquent taxes, without regard to the location of the property or the residence of
the persons to whom the property was assessed. While not clear or happily expressed, this
indicates an intention to exclude, in tax cases, the ordinary rules concerning venue. We are
further strengthened in this view by the fact that there can seldom or never be any sufficient
cause for changing the place of trial of such an action. It is essentially local in its nature. The
property and the books and records upon which the validity of the tax depends are in that
county, and generally the witnesses will be found there.
21 Nev. 222, 225 (1892) State v. Shaw
erty and the books and records upon which the validity of the tax depends are in that county,
and generally the witnesses will be found there. A change of the place of trial must
necessarily involve the county in considerable additional expense, which would often be
greater than the amount of tax involved, and of which expense much could never be
recovered from the defendants. Contemporaneous construction is also entitled to weight. Our
revenue law, copied from a California statute, has been in force here over thirty years, and
yet, so far as our knowledge goes, no attempt has ever been made, either here or in California,
to change the venue of such an action.
While the record on appeal is very defective upon this point, it sufficiently appears that the
place of trial was changed over the plaintiff's objections, and its motion to remand the case
was overruled. Under the circumstances, this motion should have been granted. (Rogers v.
Watrous, 8 Tex. 62.)
3. The evidence in the case shows that the defendant Shaw, in 1889, owned and resided
upon a ranch in Eureka county, about twelve miles north of the Nye county line. He was the
possessory owner of several pieces of real estate in Nye county, known as ranches, upon
which were situated cabins and corrals, used in the care and management of a band of cattle
running in their vicinity. No one, however, lived upon these places, and the cattle were cared
for and managed from the ranch in Eureka county. That year the defendant was assessed in
Nye county upon his possessory claims to the ranches, valued at six hundred dollars, and for
one thousand head of cattle valued at eleven thousand dollars. This action is brought to
recover the taxes due thereon. The cattle were also assessed and taxes paid in Eureka county.
The defendant admitted that the sum of twenty-one dollars was due and owing upon the real
estate, but notwithstanding this admission judgment was rendered in his favor. No reason is
stated, and we are unable to conjecture, why the state was not entitled to judgment for that
amount in any event.
The principal contention, however, is concerning the cattle; the defendant claiming that as
his home ranch, from which the cattle were cared for and managed, was in Eureka county,
they were, under the law as held in Barnes v. Woodbury, 17 Nev. 383, and Ford v.
McGregor, 20 Nev. 446, only subject to taxation in the latter county. But we are of the
opinion that there is a broad and plain distinction between these cases and the one at bar.
21 Nev. 222, 226 (1892) State v. Shaw
there is a broad and plain distinction between these cases and the one at bar.
Subject to the constitutional requirement that the rate shall be uniform and equal, the
legislature has full control over the assessment and taxation of property. It may be assessed
and taxed in the county where it is situated or elsewhere, and the taxes made payable where
the assessment is made, where the property is situated, or such other place as the legislative
will may have directed. (Welty's Law of Assessm. Sec. 51; Dubuque v. Railroad Co., 47
Iowa 196.) The power of the legislature to separate the situs of personal property from the
owner's domicile for purposes of taxation is undoubted. (Tappan v. Bank, 19 Wall. 490;
Swallow v. Thomas, 15 Kan. 68.)
Generally, in other revenue systems, it is provided that personal property shall be taxed
where the owner resides, if he be a resident of the state. But in pursuance or this authority to
regulate the matter as it may please, our legislature has adopted the more equitable rule of
taxing it where it is located, where it receives the protection of the law, and where the
expense of such protection must be incurred.
With the exception of money, gold dust and bullion, which may, at the owner's option, be
assessed where he resides, the assessor, without regard to the owner's residence, is to
ascertain and assess all the property in his county subject to taxation. (Gen. Stat. Sec.
1082-1084.) This being the system of assessment and taxation established by the legislature,
it must be followed, without regard to whether we consider it the best that could be adopted.
The only duty of the court is to ascertain and declare the legislative will, whatever it may be.
(St. Louis v. Ferry Co. 11 Wall. 429.)
It being, then, the legislative will that personal property shall be assessed in the county
where it is situated, without regard to the owner's residence or any other consideration, the
only question that is left in any case is to determine where it is so situated. This is the
question that was involved in Barnes v. Woodbury, and the only one. The court had no
authority, and did not attempt, to say that, as the owner's home ranch was in Eureka county,
the cattle belonging to him were consequently taxable there, without regard to where they
were found, but only that, under the peculiar circumstances there alleged, they were situated
and belonged in that county, and the right to tax them there necessarily followed.
21 Nev. 222, 227 (1892) State v. Shaw
them there necessarily followed. Where personal property is used in different counties during
the year, or stock is driven from one to the other, or in pursuit of food naturally wanders
across the lines, there is often difficulty in determining where, for the purpose of taxation, its
home or situs is, but as it certainly may have a situs or locality of its own as well as real estate
(People v. Niles, 35 Cal. 286), this difficulty does not relieve us from the duty of endeavoring
to ascertain where it is. Like all disputed questions of fact, it must be determined by the
evidence, in which, fortunately, in the case at bar, there is but little conflict. It sufficiently
appears that the cattle assessed, or at least a portion of them, were habitually kept upon the
range in Nye county. They were bred, born, branded and raised there. Evidently the most of
them had never been out of that county. They apparently had very little to do with the home
ranch where their owner resided. Nothing more than the beef cattle, when gathered for sale,
were taken there, and sometimes the poor ones were driven in for feed for a short time, after
which they were either driven or turned back upon the range. The latter, however, was only
done occasionally, and for a mere temporary purpose while grass was scarce, and did not
change the situs of the cattle, whose home or habitat was in Nye county.
Nor does the fact that some of the same band of cattle ranged also in other counties, or
sometimes wandered back and forth across the line, while perhaps making it difficult to
determine how many of them properly belonged in the different counties, justify the
conclusion that none of them were assessable in Nye county. This difficulty might be a cogent
reason with the legislature for providing that all such cattle should be assessed in the county
where the home ranch is situated, but, as already stated, so far it has not done so, and courts
and officers are not authorized to make the change.
A brief examination of the cases already decided in this court will show that it was not
because the home ranch was situated in Eureka county that the stock were held to be
assessable there, but because that was their home or habitat. Barnes v. Woodbury, was
decided upon demurrer to the complaint. All know that under these circumstances the courts
must decide the case upon the facts stated in the complaint, no matter whether they are true or
false. In determining what was decided in that case, we must keep constantly in mind that it
was these facts, and not what were, perhaps, the real facts of the case, that governed the
decision; for, as understood by the majority of the court, it is quite probable that the
complaint did not state the circumstances surrounding the stock exactly as they existed.
21 Nev. 222, 228 (1892) State v. Shaw
case, we must keep constantly in mind that it was these facts, and not what were, perhaps, the
real facts of the case, that governed the decision; for, as understood by the majority of the
court, it is quite probable that the complaint did not state the circumstances surrounding the
stock exactly as they existed. In their view, the complaint alleged that the owner of the cattle
owned no land in White Pine county, but did own and reside upon land in Eureka county, and
upon this land, during the winter months, his cattle were herded and cared for. When turned
out in the spring they were permitted to graze upon the public domain in both those counties,
and at various times during the summer did graze in White Pine county.
As stated by Hawley, J., the ranch in Eureka county was where his cattle were cared for
and his business conducted. This was his home ranch for the purpose of herding, caring for
and managing said cattle.' This was where his cattle belonged. They were not abiding within,
nor did they belong in, White Pine county, in such a sense as to become incorporated with the
wealth of that county, or to make them a part of its personal property. The property was, in
the eye of the law, within Eureka county for the purpose of taxation, because it belonged
there.
If these were the facts, it is difficult to see how any other conclusion could be reached than
that held by the majority of the court, that the cattle were subject to taxation in Eureka county.
That was their home, and if they were found in White Pine county it was only because, in the
search for food, they had temporarily wandered away from that home.
Justice Leonard, however, understood from the complaint that, after being turned out in
the spring the cattle went into White Pine county, and remained there during the entire
assessing period, and upon this basis he concluded they were properly assessed there, even
though the home ranch upon which they were kept and herded up to April 1st, and where they
belonged, was in Eureka county.
But whether we view the complaint as understood by him, or by the majority of the court,
there is so wide a difference between that case and this that it is almost unnecessary to call
attention to it, but we will simply say that here the evidence shows that the great bulk of the
cattle have never been within Eureka county, and in no sense of the word did they belong
there.
21 Nev. 222, 229 (1892) State v. Shaw
there. Their home, their habitat, the place where they belonged, and where one would expect
to find them, was in Nye county.
The usual meaning of the words home ranch, as used in the range country, is that it is the
headquarters of the range. It is the place from which the riders start upon their rounds to
rodeo and brand the stock, and to which they return when through; for the time being it is
their home. But this does not necessarily make it the home of the cattle. If gathered and
herded and cared for there regularly each year, it would doubtless become such; and it was in
connection with these circumstances that this home ranch was held to cut some figure in
Barnes v. Woodbury.
As already stated, the fiction that personal property follows the person of the owner has no
place in our revenue law, except as to money, gold dust and bullion. All other property is to
be assessed in the county where it belongs. Where it remains permanently in a county, or only
leaves it for a temporary purpose, this fact is conclusive, and it must be taxed there, and
cannot be taxed anywhere else. The principle is well illustrated in Ford v. McGregor, supra.
There the sheep, which were claimed to be taxable in Nye county, were controlled, cared for,
and managed at the home ranch in Eureka county, where the owners resided for ten months
in the year. The owners had no real estate in Nye county, and the sheep were only kept there
about two months in the spring, grazing upon the public domain, after which they were again
returned to Eureka county. There would seem to be here no reasonable question that the situs,
the home, of the sheep was in Eureka county, and as they could not be taxed in both counties
and the legislature has made no provision under such circumstances for an equitable division
of the tax between the counties, it followed that they were not subject to assessment in Nye
county. We do not understand this situs to be determined by the residence of the owner, nor
by the fact that he does or does not own real estate in one county or the other, although, under
some circumstances, these facts may have an important bearing upon the question of where
they belong, and tend to its elucidation.
Under the evidence in this case it is certain that at least some of the defendant's cattle had
their situs in Nye county, and were subject to assessment there. It follows that the court erred
in not finding the facts as requested by the plaintiff, and in rendering judgment for the
defendants.
21 Nev. 222, 230 (1892) State v. Shaw
not finding the facts as requested by the plaintiff, and in rendering judgment for the
defendants.
Judgment reversed, and cause remanded to the district court of Eureka county, with
directions to remand the case to Nye county for a new trial.
____________
21 Nev. 230, 230 (1892) Welland v. Williams
[No. 1347.]
HENRY WELLAND, Appellant, v. WESLEY WILLIAMS
and MARY WILLIAMS, Respondents.
PracticeConflicting Evidence.Where there is a substantial conflict in the evidence, this court will not
reverse the findings of the trial court.
IdemSuccessor of Trial Judge Passing on Motion For New Trial.This rule is not changed by the fact that the
judge that passed upon the motion for new trial did not preside at the trial of the case.
Co-TenantsLiability Relations With Each Other.One co-tenant is not responsible to his co-tenant for the
cost of improvements put upon the common property unless he so agreed, or afterwards ratified the act of
making them.
IdemCorroborative Evidence.Where there is a direct conflict in the evidence as to whether he so agreed, a
notice which merely tends to corroborate the witnesses by showing the relations which existed between the
parties, is admissible in evidence.
PracticeImplied Findings.All facts not expressly found are presumed to have been found in support of the
judgment.
IdemImplied Findings, When Available as Error.To constitute error upon an implied finding there must
have been a request for an express finding upon the point, or it must be assigned as error that the implied
finding is not supported by the evidence.
(Syllabus by Bigelow, J.)
Appeal from the District Court of the State of Nevada, Lincoln county.
Thomas H. Wells and G. F. Talbot, District Judges.
Geo. S. Sawyer and J. Poujade, for Appellant.
I. This court in determining the question as to whether the order appealed from should be
reversed should proceed as though hearing the motion for a new trial in the first instance.
The judge who made the order appealed from was not the judge who tried the case. The
reason for the rule that appellate courts will not reverse the decisions of nisi prius courts upon
motions for new trials, unless there is a great preponderance of evidence against them, ceases
in this case and with it ceases the rule.
II. The theory of the action for money paid out and expended is eminently an equitable
one, and if any one voluntarily receives and enjoys the benefits of money so laid out and
expended for him, the law implies the request and promise to pay his share. (2 Greenleaf Ev.
14 Ed. Sec. 114, n. 17; Curtis v. Fiedler, 2 Black 461; 1 Estee Plead. Sec. 319; Davis v.
Thompson, 1 Nev. 17).
III. The testimony of appellant and of a disinterested witness shows conclusively that
appellant expended the money for the hoisting works and machinery with the distinct
understanding that he was to receive it back from the proceeds of the mine. The testimony of
respondents can only be considered as that of one witness. It follows that there is a conclusive
preponderance of evidence against the decision of the court below.
IV. All relations of co-tenancy, or mining partnership, had ceased prior to the
commencement of this action and there was no accounting amongst the parties. (Wicks v.
Lippman, 13 Nev. 499.)
T. J. Osborne and Rives & Judge, for Respondents.
I. It is well settled by both principle and authority that where the moving party on motion
for new trial intends to rely on the point that a finding of fact is not supported by or is
contrary to the evidence, he should specify in his statement wherein such finding is not
justified or supported by the evidence. (Smith v. Logan, 18 Nev. 149; Langworthy v.
Coleman, 18 Nev. 440; Cowing v. Rogers, 34 Cal. 648; Beans v. Emanuelli, 36 Cal. 117.)
II. A tenant in common cannot charge either lands or co-tenants for improvements on the
common property. (Rico R. & M. Co. v. Musgrove, 23 Pac. Rep. 458; Thurston v. Dickinson,
46 Am. Dec. 56; Calvert v. Aldrich, 99 Mass. 74.) In the absence of a showing of express
authority no contribution, even for necessary repairs, can be recovered by one co-tenant from
another.
from another. (Stackpole v. Stackpole, 32 N. W. Rep. (Mich.) 808; Wiggins v. Wiggins, 43 N.
H. 561.)
The plaintiff owned one-third of a certain mine, H. W. Turner one-third and the
defendants, who are husband and wife, the other third. The plaintiff, at his own expense,
erected hoisting works upon the property at a cost of about five thousand dollars, of which, in
June, 1890, he had been repaid from the proceeds of the mine about two thousand dollars, at
which time the co-owners separately sold their entire interest in the mine to a third party.
This action is brought to recover from the defendants one-third of the balance of the
expense so incurred by the plaintiff in the erection of the hoisting works. He bases his right to
recover upon the grounds: First, that at the time the works were constructed the defendant's
agreed that the plaintiff should be repaid from the proceeds of the ore to be taken from the
mine; secondly, that the defendants were bound under the circumstances, even without such
an agreement, to repay him one-third of his outlay.
1. The court found that the defendants did not agree to the erection of the works, nor to
the plaintiff's retaining from the proceeds of the mine the expense of so doing. There was a
substantial conflict in the evidence upon this point, and, even if not satisfied with the finding,
this prevents us from looking into the evidence for the purpose of determining where its
weight lies. All that need be said is, that there is not such a clear preponderance against the
finding as convinces us that the court erred, or as would justify us in substituting our
judgment for that of the judge who heard the case.
While admitting this to be the rule, it is contended that it does not apply here, because the
judge who passed upon the motion for new trial did not hear the evidence and knew nothing
about it except as reported in the statement; but we do not understand that this makes any
difference. The judge who presided at the trial did hear it, and it is his discretion and
judgment, as well as that of the judge who heard the motion, that we have no right to
overrule. Whether this should be so held in cases tried by a jury, where the presiding judge
has had no opportunity of expressing his opinion concerning the evidence, we need not
consider.
we need not consider. The authorities are that even this makes no difference. (Altschul v.
Doyle, 48 Cal. 536; Macy v. Darila, Id. 648; Rice v. Cunningham, 29 Cal. 494; Hawkins v.
Reichert, 28 Cal. 538, See Hayne, New Trials & App. Sec. 288.)
2. In 1886, while the defendant, Wesley Williams, was the owner of the defendant's
interest, the co-owners entered into an agreement to work the mine as the majority might
deem for their best interest. He, however, soon became dissatisfied, objected to the manner in
which the mine was being worked, and apparently to avoid the effect of this agreement,
conveyed his interest to his wife, who placed a notice on the property that she would not be
responsible for any indebtedness incurred upon the mine. This notice was kept posted during
all the time of the construction of the works and up to the sale in 1890. The court admitted
this notice in evidence, over the plaintiff's objection that it was immaterial and irrelevant, and
this ruling is assigned as error.
As already stated, there was a serious conflict in the evidence as to whether the defendants
agreed to the construction of the worksTurner testifying for the plaintiff that they had, and
the defendants denying it. As tending to corroborate their version of the matter, they stated
that they had frequently and continuously objected to the manner in which the property was
being managed by their cotenants, and in connection with this testimony, offered this notice
in evidence.
It must be admitted that the notice had no direct bearing upon the question of whether they
had or had not made the agreement but it tended to illustrate the situation and relation of the
parties, and in the conflict of direct evidence, would naturally assist the court in determining
whether it was probable that they had consented to the doing of something to which they had
all along been objecting. As such corroborating testimony, we think no error was committed
in admitting it. (Freeman v. Fogg, 82 Me. 408; Carpenter v. Wilmot, 24 Mo. App. 589;
Richardson v. McGoldrick, 43 Mich. 476; Pennsylvania, etc., Co. v. Dandridge, 8 Gill. & J.
248; Dryer v. Brown, 52 Hun. 321.)
3. In the absence of an express or implied agreement between cotenants that the expense
of improvements made by one of them upon the common property is to be repaid, or such
ratification as amounts to such an agreement, it is clear, under the authorities, that neither
can maintain an action against the other to recover any portion of such expense.
the authorities, that neither can maintain an action against the other to recover any portion of
such expense. (Freem. Coten. Sec. 262; Calvert v. Aldrich, 99 Mass. 74; Alleman v. Hawley,
117 Ind. 532.) If we admit, as we certainly do, that circumstances may exist which amount to
a ratification of such expenditure, and which would make the cotenant liable for them
(Pickering v. Pickering, 63 N. H. 468; Alden v. Carleton, 81 Me. 358), the answer is that the
facts necessary to support such a case were not found by the court, and in the absence of an
express finding, it must be presumed, without regard to the evidence, that the findings were
such as to support the judgment; and, further, if it be said that such an implied finding is
contrary to the evidence, that this is not assigned as an error in the case.
As already stated, the mere fact of the making of the improvements upon the common
property is not sufficient to sustain the plaintiff's action. In addition, he must show either that
it was understood that he was to be repaid the expense of making them, or such a voluntary
appropriation by his co-tenant of the benefits derived from them as, in equity and good
conscience, amounts to a ratification and adoption of the act of making them.
The findings here do not show that the hoisting works were of any value to the mine, or
that when the defendants sold, the works were included in the sale, or that they received any
greater price for their interest in the mine by reason of the works being there. Whether, if
these facts, or some of them, had been found, they would have been sufficient to enable the
plaintiff to recover, we need not consider, because if so, we must, in support of the judgment,
presume that they were found not to exist.
The statute has established an orderly method whereby a losing party may have a case
reviewed and his rights determined. If it is claimed that the judgment is contrary to the
findings, this may be assigned as error. If all the issues in the case have not been covered,
findings upon the omitted points may be requested, when it will become the duty of the court
to supply them. (Hathaway v. Ryan, 35 Cal. 191.) If not so requested, the judgment will not
be reviewed upon that point (Warren v. Quill, 9 Nev. 259), unless it be upon an assignment of
error that the evidence does not support, or is contrary to, the implied finding (More v. Lott,
13 Nev. 377).
Whether these two cases are in conflict, or what should be the correct practice where it is
claimed that the implied findings are not supported by the evidence, need not be
considered here, because the plaintiff has brought himself within neither of them.
correct practice where it is claimed that the implied findings are not supported by the
evidence, need not be considered here, because the plaintiff has brought himself within
neither of them. One or the other course must be pursued, for it is not sufficient to justify a
reversal that the evidence shows generally that the case should have been decided in favor of
the other party. (Caldwell v. Greely, 5 Nev. 260; Martin v. Matfield, 49 Cal. 42; Hayne New
Trials & App. Sec. 150.)
The only assignment of error upon the findings is concerning those expressly found against
the plaintiff, and we are consequently not called upon nor permitted to review others that
must be implied in support of the judgment.
____________
21 Nev. 235, 235 (1892) State v. Comm'rs Humboldt County
[No. 1352.]
THE STATE OF NEVADA ex rel. L. F. DUNN, Relator, v. THE BOARD OF
COMMISSIONERS OF HUMBOLDT COUNTY, Respondent.
Constitutional LawPresumptions Favor Constitutionality of Laws.All presumptions are in favor of the
validity of an act of the legislature. The courts will only declare them unconstitutional in cases of clear and
unquestioned violation of the fundamental law.
IdemScope of Title of an Act.An act does not embrace more than one subject, because while fixing the
salaries and compensation of the officers of a county, it also provides for the consolidation of the offices of
superintendent of schools and district attorney, and provides that the latter officer shall, for the salary
provided, also discharge the duties formerly appertaining to the superintendent's office.
IdemTitle and Subject Matter of Act.The act of March 9, 1891 (Stats. 1891, 30), embraces but one subject
and matter properly connected therewith.
IdemComplete Portions of ActExtent of Consideration by Court.Where a portion of a statute is complete
in itself and capable of being executed wholly independent of that which may be rejected, and there is no
reason to suppose that the legislature would not have passed the act except as a whole. Held, that the courts
will affirm the validity of such independent part, without considering whether the other is or is not
unconstitutional.
Original application for a writ of mandamus requiring the board of commissioners of
Humboldt county to allow the relator's salary as clerk at the rate of two hundred dollars per
month.
month. The board refused to act upon the claim for the reason that the law of March 9, 1891,
had taken all jurisdiction in the matter away from them, and had provided that his salary
should be paid by a warrant drawn by the auditor upon the salary fund for only the sum of one
hundred dollars per month.
M. S. Bonnifield and J. A. Plummer, for Relator.
I. The act of the legislature, approved March 9, 1891, is unconstitutional and void in that
both the act and the title embrace more than one subject, to-wit: The subject of salaries and
the subject of consolidating offices, and is therefore in contravention of section 17, article 4
of the constitution of Nevada.
II. Where the title of the act actually indicates and the act actually embraces two distinct
subjects, the whole act is void. (Cooley's Const. Lim. 6th ed. 178.)
III. Mandamus is the proper remedy to enforce the payment of an official salary where the
amount is fixed. (14 Am. & Eng. Ency. of Law 180; People v. Supervisors, 32 N.Y. 473;
Thurston v. Elmira Auditors, 82 N.Y. 80.)
E. S. Farrington, Amicus Curiae.
I. The law of 1891 restores to Humboldt county the uniform system of county government
established by the laws of 1866 and 1887. The law of 1889 was manifestly unconstitutional.
II. The act of 1891 and its title embrace but one subject, to-wit.: the fixing of salaries and
compensation of the officers of Humboldt county.
The relator, as clerk of Humboldt county, was, prior to 1892, entitled to a salary of two
thousand four hundred dollars per annum, to be allowed by the board of commissioners of
that county. This was, however, by the act of March 9, 1891 (Stat. 1891, p. 30), reduced to
one thousand two hundred dollars per annum, to be paid by a warrant drawn by the auditor
upon the salary fund. He claims that this act is unconstitutional, and this is the question
involved in this action.
1. The first ground upon which this claim is made is that both the act and its title embrace
more than one subject, to-wit: the subject of salaries and the subject of consolidating
offices.
the subject of salaries and the subject of consolidating offices. The title of the act is An act
fixing the salaries and compensation of the officers of Humboldt county and consolidating
certain offices in said county, and to repeal all acts in relation thereto. Section 1 fixes the
salary of the sheriff of that county; sections 2 and 3, the salaries of other officers; and in
section 2 it is further provided that the district attorney shall act as ex-officio superintendent
of schools. Section 4 provides that the office of superintendent shall be consolidated with the
office of district attorney.
Section 17, art. 4 of the constitution directs that each law enacted by the legislature shall
embrace but one subject, and matter properly connected therewith, which subject shall be
briefly expressed in the title. As frequently stated by the courts, the object of this provision
was twofold: First, to prevent the uniting in one act of several independent and disconnected
matters, good, bad and indifferent, many of which could not be carried upon their own merits,
but by uniting them together in the same bill, thereby obtaining the support of all interested in
each measure, enough strength could be mustered to push it through; secondly, to prevent
fraud and surprise upon both the members of the legislature and the people, as under the old
system it was often found that some of the most vicious acts had been smuggled through the
legislature under innocent titles that gave no hint of their real nature, and of which all except
those directly interested were ignorant. (State v. Silver, 9 Nev. 227; School Dist. v. Hall, 113
U.S. 135.)
The evil can be well understood from what is said in Yeager v. Weaver, 64 Pa. St. 425,
where Sharswood, J., speaking for the court, used this language: The people did not mean by
the amendment of 1864 to require that the title should be a full index to all the contents of the
law, but by declaring that each bill shall be confined to one subject, which shall be clearly
expressed in the title, to prohibit the vicious practice of rolling together what were termed
Omnibus Bills,' including sometimes more than a hundred sections on entirely different
subjects, with the title of the enactment of the first section', and for other purposes.'
This, then, being the mischief against which this clause of the constitution is directed, it
should be so construed as to correct the evil, but at the same time not to needlessly thwart
honest efforts at legislation.
honest efforts at legislation. There is scarcely any subject of legislation that cannot be divided
and subdivided into various heads, each of which might be made the basis of a separate act,
and in which the connection between them may be made a matter of controversy. The reports
show that seldom, indeed, has the validity of a law come seriously in question without its
being claimed that it was in conflict with this clause of the constitution. This shows how
necessary it is to adopt liberal rules of construction in order to sustain laws not coming within
the spirit and meaning of the constitutional prohibition. If the provisions of a statute all relate,
directly or indirectly, to the same subject, have a natural connection, and are not foreign to the
subject expressed in the title, it is permissible to unite them in the same act. (Iron Works v.
Brown, 13 Bush. 685; Philips v. Bridge Co., 2 Metc. (Ky.) 222.) In State v. Kinsella, 14
Minn. 524, it is said: The insertion in a law of matters which may not be verbally indicated
by the title, if suggested by it, or connected with, or proper to the more full accomplishment
of the object so indicated, is held to be in accordance with its spirit.
All presumptions are in favor of the constitutionality of a statute, and it will be held valid
until the mind of the court is clearly convinced to the contrary. (Evans v. Job, 8 Nev. 322;
Railroad Co. v. Morris, 65 Ala. 193. In cases of doubt, every possible presumption and
intendment will be made in favor of the constitutionality of the act in question. The courts
will only interfere in cases of clear and unquestioned violation of the fundamental law. (State
v. Irwin, 5 Nev. 120; People v. Parks, 58 Cal. 635.) The objections should be grave, and the
conflict between the constitution and statute palpable, before the judiciary should disregard a
legislative enactment upon the sole ground that it embraces more than one object. (Montclair
v. Ramsdell, 107 U.S. 155, Suth. Stat. Const. Sec. 82.) It is only the subject of the act which
must be stated in the title; matters properly connected with that subject need not be
mentioned. (Humboldt Co. v. Churchill Co., 6 Nev. 30.) If they are mentioned it simply
makes the title unnecessary prolix, but does not constitute the connected matter a separate
subject nor otherwise invalidate the law. (Plummer v. People, 74 Ill. 361; Hronek v. People,
134 Ill. 139.)
From an examination of the act in question and comparing it with the law previously in
force, it is clear that the general purpose of the legislature in enacting it was to make a
reduction in the expenses of Humboldt county.
with the law previously in force, it is clear that the general purpose of the legislature in
enacting it was to make a reduction in the expenses of Humboldt county. The method adopted
for doing this was to fix the salaries and compensation of the officers of the county at a lower
figure than they had previously been. Therefore, salaries and compensation of the officers
became the immediate subject of this act. The superintendent of schools was one of the
officers of the county; as such it was necessary to fix his salary or to say that he should not
have a salary, or else leave the act unfinished and incomplete. It is obviously also a matter
properly connected with the fixing of salaries and compensation to say for what that
compensation shall be had. Therefore, as it was intended that, for the compensation granted,
additional duties should be required from the district attorney, this was the proper place to so
state, and to define what those additional duties were to be. It would seem that connection
between the subject matter of the actthe regulation of the salaries and compensation of
officersand the consolidation of the duties of the two officers mentioned, is so clear as to
be unmistakable. This much, at least, is certain: they are not separate and distinct and
independent propositions, having no connection with each other, which have been thrown
together in the same bill, and therefor the act does not come within the mischief against
which the constitutional provision is directed. Even if the connection is not so clear as we
consider it, there can be no question that the departure is not so plain and manifest as to
justify us in holding that the law is unconstitutional, as covering two subjects. The
consolidation of the offices being matter properly connected with the subject of the act, as
already stated, its being enumerated in the title is mere surplusage and does no injury. (State
v. Atherton, 19 Nev. 332; see also Esser v. Spaulding, 17 Nev. 289; State v. Ah Sam, 15 Nev.
27; Klein v. Kindead, 16 Nev. 194.)
2. It is also claimed that the act is in conflict with section 25 of article 4 of the
constitution, because it destroys the uniform system of county government therein required to
be established, but we deem it unnecessary to consider this point. The question involved in
this case is the validity of that part of the act of 1891 which fixes the salary of the clerk of
Humboldt county. The part which it is claimed is unconstitutional, upon this ground, is that
which consolidates the offices of superintendent of schools and district attorney.
of schools and district attorney. Conceding it to be so, and striking it out as null and void, that
which remains is still an act complete in itself, and capable of being executed in accordance
with the apparent legislative intent, wholly independent of that which is rejected. Being so
distinct and separate, there is no reason to suppose the legislature would not have passed the
one without the other. Certainly, the clerk's salary should not have been reduced unless the
legislature believed that it was proper and just, under all the circumstances surrounding his
office, to pay him a smaller compensation; and the determination of this question does not
depend in the slightest degree upon whether it is also proper to consolidate the two offices
mentioned, and we cannot presume that one measure in any manner influenced that body in
its action concerning the other.
We find the principles that should govern this question stated in Cooley's Constitutional
Limitations as follows: Where 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. (Page 177. State v. Estabrook, 3 Nev. 173; Turner v.
Fish, 19 Nev. 295.)
It does not follow because the legislature does not have the power to legislate concerning a
particular matter, which otherwise would be properly connected with the subject matter of an
act, that the act embraces two subjects, or that the whole act is void. The same rules apply
that apply in any other case where a part of an act is invalid.
Our conclusion is that the act in question embraces but one subject and matter properly
connected therewith, and admitting, without at all deciding, that the connected matter is in
conflict with another part of the constitution, this does not affect the validity of the part fixing
the relator's salary.
Mandamus denied.
____________
21 Nev. 241, 241 (1892) Maynard v. Ivey
[No. 1346.]
H. G. MAYNARD, Appellant, v. W. H. IVEY, Respondent.
Mechanics LiensNon-Lienable Charges in Statement.The mere fact that a lien claimant has included in his
statement charges for which the law allows no lien will not defeat that portion for which he is entitled to a
lien, when the charges are separately stated.
IdemSufficiency of Statement.A statement claiming a mechanics lien is sufficient which describes the
property sought to be charged, gives the name of the owner, the names of the persons by whom claimant
was employed, and the total amount due after deducting all credits and offsets. A lien claimant is not
required to particularize the number of days he has labored upon different parts of the property sought to be
charged.
Robt. M. Clarke, for Appellant.
I. The statute to secure liens to mechanics and others should be liberally construed so as to
give to lien claimants the benefits intended by the legislature. (Skyrme v. Occidental Co., 8
Nev. 220, 239; Putnam v. Ross, 46 Mo. 337; Hunter v. Truckee Lodge, 14 Nev. 24; Malone
v. Gravel M. Co., 76 Cal. 578; West Coast L. Co. v. Newkirk, 80 Cal. 275; McDonald v.
Backus, 45 Cal. 262; Lonkey v. Wells, 16 Nev. 274; Malter v. Falcon M. Co., 18 Nev. 212.)
II. A substantial compliance with the statute is all that is required. (Hunter v. Truckee
Lodge, 14 Nev. 24, 28; Jewell v. McKay, 82 Cal. 144, 151; Russ v. Garretson, 87 Cal. 589;
Hagman v. Williams, 88 Cal. 146; Towner v. Rennick, 19 Mo. Appeals 205; Cornell v.
Mathews, 27 N. J. Law 522; McFee v. Litchfield, 145 Mass. 565; Cleverly v. Moseley, 148
Mass. 280.)
on re-argument.
I. The lien of mechanics is a creation of statute and was unknown to the common law or
in equity. (McNeil v. Borland, 23 Cal. 144; Canal Co. v. Gordon, 6 Wall. 561.) It is
exclusively the creature of statute deriving its existence only from positive enactment. There
can be no lien independent of statute.
statute. (Phillips on Mechanics Liens, Sec. 9; Childs v. Anderson, 128 Mass. 108.)
II. The mechanics lien being a creature of statute, a compliance with the statute is all that
is required to create the lien. (Phillips on Mechanics Liens, Secs. 337-340.)
III. The statute of Nevada which creates the right of lien does not require the statement or
claim of lien to set forth the nature or character of labor for which the lien is claimed. (Gen.
Laws Nev., Sec. 3812.) How the labor was performed, where performed and when performed,
is matter of proof to be established at the trial and need not appear in the statement. (Phillips
on Mechanics Liens, Sec. 353; Patrick v. Smith, 120 Mass. 510; Lonkey v. Wells, 16 Nev.
271; Ricker v. Joy, 72 Me. 106; Simonds v. Buford, 18 Ind. 176; Graves v. Pierce, 53 Mo.
428.)
W. Webster, for Respondent.
I. The question is one of notice. There is no direct statement showing ownership of the
property in any one. The name of the owner must be ascertained, if at all, by inference. Such
ascertainment does not equal the requirements of the statute.
on re-argument.
I. The notice should have been made more specific. It should show the labor expended
upon each part or division of the property mentioned in the notice.
II. Under the statute a lien may be made upon a structure that may not extend to the land
upon which it is made, but in no instance will land become subject to a lien without a
structure upon it, unless by special provision. It does not appear that any structure was made
on the mill site or upon the grounds of the Willow Creek Mining Company, for which reason
no lien could attach upon the lands. (Kneeland on Mechanics Liens, Sec. 128; Mechanics
Lien Act of Nev. Secs. 1, 3.)
This action was commenced to foreclose a mechanic's and laborer's lien against the
property of the Willow Creek Mining Company, a corporation doing business in Washoe
county, Nevada. W. H. Ivey was made a party defendant, as having or claiming to have an
interest in the property by judgment and execution, alleged to be subsequent to plaintiff's
lien.
or claiming to have an interest in the property by judgment and execution, alleged to be
subsequent to plaintiff's lien. Ivey demurred to the complaint, upon the ground that it did not
state facts sufficient to constitute a cause of action against him. The demurrer was sustained,
and this appeal is taken from the order sustaining the demurrer and dismissing the action as to
Ivey. We are left in doubt as to which portion of the complaint the demurrer was sustained,
and it will necessitate an examination of the entire pleadings to determine there-from if it is a
compliance with our lien law.
The plaintiff filed with the county recorder of Washoe county, within the time required by
law, a statement of his account, in which is set forth the number of days' work performed, the
price per day that had been agreed upon, the dates between which the work and labor were
performed, together with the amount received by him, and by whom paid. The statement of
the plaintiff's account is a sufficient compliance with the statute. The mere fact that he has
included in his statement charges for which the law allows no lien, will not defeat that portion
of his claim for which he is entitled to a lien, when the charges are separately stated. (Allen v.
Smelting Co., 73 Mo. 692; Dennis v. Smith, 38 N.W. Rep. 695; Johnson v. Building Co., 23
Mo. App. 548; Hubbard v. Brown, 8 Allen, 590; Harmon v. Railroad Co., 22 Pac. Rep. 407;
Albrecht v. Lumber Co., 26 N.E. Rep. 157; Gaskell v. Beard, 11 N.Y. Supp. 399.)
The name of the owner of the property is set out in the notice of lien as follows: Know all
men by these presents, that H. G. Maynard, of the county of Washoe and state of Nevada, has
performed labor in and upon the mining claim and mill site and grounds of the Willow Creek
Mining Company, a corporation of the state of Nevada, situate in the said county of Washoe,
as more particularly hereinafter described. That the following is a just and true statement of
the demand due H. G. Maynard, after deducting all just credits and offsets, and that it is his
intention to claim and hold a lien upon the said mining claim, mill site and grounds of the
said Willow Creek Mining Company, and upon the improvements, appliances, machinery and
appurtenances, mill and water rights belonging to or claimed by said corporation, described as
follows: Lot No. 37, containing 20.66 acres, in sections 12 and 13, in township 17 north,
range 19 east, as shown by the record of the patent of the United States to said mining
company at page 303, in Book A of Patents, records of said Washoe county, to which
record reference is hereby made; and that certain tract of land commencing at the
southwest corner of section 7, in said township and range 20 east;.
township 17 north, range 19 east, as shown by the record of the patent of the United States to
said mining company at page 303, in Book A of Patents, records of said Washoe county, to
which record reference is hereby made; and that certain tract of land commencing at the
southwest corner of section 7, in said township and range 20 east; thence running 254 feet
east, thence north along Virginia & Truckee railroad fence, 1,122 feet; thence west 600 feet;
thence south to place of beginningall of which land, improvements, superstructures and
appurtenances are charged with this lien. That said work was performed at the special
instance and request of C. C. Stevenson, president of said corporation, and of D. H. Bisbe,
then superintendent of said corporation, thereto duly authorized by the trustees thereof.
The right to liens given to mechanics and laborers is introduced into the statutory law of
the states by positive statutes. These statutes were at first looked upon by the courts to be in
derogation of the common law, and hence they were strictly construed. They have now,
however, become an integral part of our law, and their justice and beneficence have become
so apparent that it was not intended by the legislature that laborers' lien statements should be
strangled by technicalities, but being remedial in their nature they were to receive a broad and
liberal construction. (Skyrme v. Mining Co., 8 Nev. 221; Hunter v. Truckee Lodge, 14 Nev.
28; Lonkey v. Wells, 16 Nev. 274; Malter v. Mining Co., 18 Nev. 212.) The purpose of
section 3812, Gen. Stats. Nev., is to secure to owners and others, who are about to advance
money or purchase the property, notice of the amount and nature of the lien to which the
property is subject, and in whose favor the lien has accrued, and if that notice is fairly given
under the claimant's signature and affidavit, it is a substantial compliance with the statute,
which is all the law requires.
It would be too rigorous to insist upon formal and technical accuracy from a laborer in
filing his statement of lien with the county recorder. We think that the statement filed by the
plaintiff in this case meets the requirements of the statute. The stockholders, lien claimants,
or a prospective purchaser of the Willow Creek Mining Company property, by an inspection
of the statement of lien recorded in the office of the county recorder, would be notified that
Maynard claimed to have performed labor on property owned by the Willow Creek Mining
Company.
performed labor on property owned by the Willow Creek Mining Company. The total amount
earned is stated. All credits and offsets are deducted therefrom, and the intention of Maynard
to claim a lien against the property for the balance due, the names of the parties by whom he
was employed, terms and time given, with a description of the property sought to be charged
by the lien, sufficient for identification. In the complaint it is alleged that at the date of said
employment, and at the time said work and labor was performed, the defendant Willow Creek
Mining Company was, ever since has been, and now is, the owner of the said Willow Creek
mine, mining ground, and the improvements thereon; describing them as in the notice.
The allegation that he has performed labor in and upon the mining claim and mill site and
grounds of the Willow Creek Mining Company, is sufficient. We do not think he is required,
under the lien law, to say that he was employed a certain number of days working in the face
of a drift, tunnel, or in the bottom of a winze or shaft, as a miner, or that he was running a car
or tramway, or turning a windlass to carry rock from the mine, or that he was employed in the
mill, feeding batteries or attending pans, or mention any particular kind of work that he was
called upon to do by his foreman or superintendent. As was said by the supreme court of
California in the case of Malone v. Mining Co., 76 Cal. 586: It is sufficient to say that the
character of the work should not be scrutinized too strictly. If the labor had a legitimate
connection with the working of the mine, it is sufficient, within the meaning of the law.
A substantial compliance with the statute is sufficient, and this is shown to exist wherever
enough appears on the face of the statement to point out the way to a successful inquiry, but
should not be carried to such extremes as serve only to perplex and embarrass, a remedy
intended to be simple and summary without adding anything to the security of the parties
having an interest in the property sought to be charged with the lien. The question as to how
much labor was performed upon the property, and what portion shall be subject to the
plaintiff's lien, is one for the court to determine, after hearing all the evidence in the case. A
notice of intention to claim a lien may include more property than is subject to the lien, or of
greater value than is required to pay the same. (Northwestern, etc., Co.
v. Norwegian, etc., Seminary, 45 N. W. Rep. 868.) The plaintiff's employment may have been
such that he is entitled to a lien on all the property mentioned in his statement filed. (Wescott
v. Bunker, 22 Atl. Rep. 388; Silvester v. Mine Co., 22 Pac. Rep. 217; Tenny v. Sly, 14 S. W.
Rep. 1091; Sergeant v. Denby, 12 S. E. Rep. 402; Phillips v. Gilbert, 101 U.S. 721.)
The case of Malter v. Mining Co., 18 Nev. 212, is not analogous to the case now under
consideration. In that case there was no attempted allegation of ownership; no such a
description of the property sought to be charged by the lien whereby the same could be
indentified.
From the record before us it appears that the complaint and the matters therein stated are
sufficient. The judgment will be reversed, with instructions to the court below to overrule the
demurrer.
cause below.
____________
21 Nev. 247, 247 (1892)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JULY TERM, 1892.
____________
Volume 21
____________
[Nos. 1353 and 1356.]
THE STATE OF NEVADA, Respondent, v. THE CENTRAL PACIFIC RAILROAD
COMPANY, Appellant (No. 1353); and THE STATE OF NEVADA, Appellant, v. THE
CENTRAL PACIFIC RAILROAD COMPANY, Respondent (No. 1356).
Railroad CompaniesTaxation of Surveyed, Unpatented Lands.Since the act of congress of July 10, 1886,
the surveyed but unpatented lands within the grant to the Central Pacific railroad are no longer exempt
from taxation by reason of the government lien thereon for the costs of surveying, etc. The conditions
contained in that act to the effect that the lien shall continue, and that the United States may become a
preferred purchaser at any tax sale of such land, control such sales, and there is no necessity for a
legislative acceptance by the states of the conditions of the act.
Public DomainTaxation Subject to Conditions Imposed by Congress.Congress having full control over the
public domain, may make it subject to state taxation upon such conditions as are deemed proper, and then
if so taxed, it must be done subject to those conditions.
TaxationRight Granted to StatesAcceptance Presumed.The act of July 10, 1886, is a grant to the states of
the right to tax lands in which the United States still has such an interest as renders
them exempt, and being beneficial, its acceptance by the grantee will be presumed.
lands in which the United States still has such an interest as renders them exempt, and being beneficial, its
acceptance by the grantee will be presumed.
AssessmentInterest Affected.The title or interest of the United States in the public lands will not be affected
where only the possessory claim to the land is assessed. Such assessment will only reach the taxpayer's
interest in the land.
IdemPlea of Exemption from Taxation.Under Sec. 1108 Gen. Stats. it is a good answer for a defendant
when assessed for a possessory claim to land to deny such claim, and plead that whatever claim it has is
exempt from taxation.
Public LandsNature of Possessory Claim Subject to Taxation.The possessory claim to public land which
may be taxed as something separate and distinct from the title in fee, is an actual possession, and not a
constructive possession or a mere claim to the land. Mortgaging and leasing public land do not constitute
actual possession thereof.
Payment of TaxesTenderDemand for Receipt.Where upon payment of taxes the statute requires the tax
receiver to give a receipt, a tender of taxes is not rendered invalid because such receipt is demanded.
Cross appeals from the District Court of the State of Nevada, Lander county.
G. F. Talbot, District Judge.
J. D. Torreyson, Attorney General, J. B. Egan, District Attorney of Lander county and
Henry Mayenbaum, for the State.
I. Upon the admitted facts there can be no question that the state is entitled to recover the
taxes on the surveyed and patented lands, and also forty per cent. thereon in penalties and
district attorney's fees. (State v. C. P. R. R. Co., 20 Nev. 373; State v. C. P. R. R. Co., 25 Pac.
Rep. 442.) Bearing in mind that it is stipulated that the lands now under consideration are
surveyed, and under the decision of the State v. C. P. R. R. Co., 20 Nev. 373, are taxable, the
answer of the defendant does not raise an issue and is insufficient under section 32 of the
revenue act, because it does not deny all claim, title or interest in the property assessed at the
time of the assessment. (State v. C. P. R. R. Co., 9 Nev. 87-89; State v. Western Union Tel.
Co., 4 Nev. 345-6; People v. Pearis, 37 Cal. 259; People v. Frisbie, 31 Cal.
31 Cal. 146; Robinson v. Gaar, 6 Cal. 273; State v. Sadler, 23 Pac. Rep. 799.)
II. It will be seen by the amended complaint that the possessory claim to the unsurveyed
lands alone is taxed and that these lands are described by common designation without
reference to any United States surveys. The defendant did not prove the truth of the allegation
in the answer that it claimed no possession, but on the contrary by stipulation it conclusively
admitted that the defendant claimed and possessed these unsurveyed lands. The stipulation on
this point is: That said defendant has heretofore mortgaged said lands described in said
complaint, and has at divers times leased various portions thereof. Leaving out the question
of grant entirely and admitting that the defendant had no grant at all, this claim, this
possession, this claim to, or this possession of, admitted by the stipulation, is assessable.
(Gen. Stats. 1081, 1084, 1088; Wright v. Cradlebaugh, 3 Nev. 346; Hale & Norcross v.
Storey Co., 1 Nev. 104; People v. Shearer, 30 Cal. 645; People v. Frisbie, 31 Cal. 147;
People v. Cohen, 31 Cal. 210; People v. Crockett, 33 Cal. 150; People v. Donnelly, 58 Cal.
146.)
III. The contention of defendant's counsel that there must be actual possession of land to
make a possessory claim taxable is sustained by none of the authorities which they cite. In the
case at bar, the claim, or right of possession is not a mere assertion. The defendant shows by
the most conclusive indicia its claim, or right of possession to these lands, by conveyancing
the same by mortgage and leases. That is a taxable claim to, or right of possession of these
lands.
IV. The description of the lands is sufficient. All of the authorities show that a description
by common name, as by sections, townships, etc., is the best. As to the description of the
surveyed lands, that is absolute. As the case now stands upon the amended complaint, the
description is certain as to the unserveyed [unsurveyed] lands, because it is shown by the
stipulation that the defendant has, and claims possession and right of possession, by having
mortgaged and leased the same. Our statute covers the whole subject as to the sufficiency of
the description. (Gen. Laws, 1088; People v. Crockett, 33 Cal. 150; High v. Shoemaker, 22
Cal. 363; Bosworth v. Danzien, 25 Cal. 296; State v. C. P. R. R. Co., 10 Nev. 48, 62; State v.
C. P. R. R. Co., 20 Nev. 373.)
V. The answer of defendant raises no issue, except that of tender. It does not conform to
the requirements of section 52 of the revenue act, which it should do in order to be availing.
(State v. C. P. R. R. Co., 9 Nev. 79, 87, 90; State v. Western Union, 4 Nev. 338, 345; People
v. Pearis, 37 Cal. 260-262; State v. Sadler, 23 Pac. Rep. 800; State v. C. P. R. R. Co., 10
Nev. 61; State v. C. P. R. R. Co., 20 Nev. 383; San Francisco v. Phelan, 61 Cal. 619.)
VI. The admitted facts do not show that there was a sufficient tender. The first condition
that the tender of fifteen thousand six hundred and forty-five dollars and sixty-six cents was
in payment of the assessed taxes of the defendant of eighteen thousand seven hundred and
seven dollars and seventy cents, clearly vitiates it, for a tender must be unconditional.
(Rooswelt v. Bank, 45 Barb. 579; Cashman v. Martin, 50 How. Pr. 337; Shotwell v. Denman,
1 Coxe 174; Wagenblast v. McKean, 2 Grant's Cas. Pa. 393; Shaw v. Sears, 3 Kans. 242;
Pulsifer v. Shepard, 36 Ill. 513; Perkins v. Beck, 4 Cranch C. C. 68; Barker v. Parkenhorn, 2
Wash. C. C. 142; Strong v. Harvey, 3 Bing. 304; Richardson v. Boston, etc., 9 Met. 42;
Langford v. Buckley, 30 Conn. 344; Draper v. Hitt, 43 Vt. 439; Wood v. Hitchcock, 20
Wend. 47; Nye v. Chase, 50 Vt. 306; Cheminaut v. Thornton, 2 Car. & P. 50; Clark v. New
York, 1 Keyes N. Y. 9; Holton v. Brown, 18 Vt. 224; Higham v. Baddly, Gow. 213; Thayer v.
Brackett, 12 Mass. 450; Finch v. Miller, 5 C. B. 428; Laing v. Meder, 1 Car & P. 257;
Mitchell v. King, 25 Eng. Com. Law 412; Griffith v. Hodges, 1 Car. & P. 419; Jenning v.
Turner, 24 Eng. C. L. 610; Gordon v. Cox, 32 Eng. C. L. 557; Sutten v. Hawkins, 34 Eng. C.
L. 380; Hastings v. Thorley, 34 Eng. C. L. 573; Appeal of Forest Oil Co. 118 Pa. 138.)
VII. According to law of tender, it was necessary for the defendant to prove that it kept the
tender good, and was all of the time, from said tender to said payment, ready to pay the
money. (Miller v. McGehee, 60 Miss 903; Barber v. Brink, 5 Clark, 401; Turner v. Goodman,
Fort 150; Brikhead v. Wilson, 1 Dyer 154; Craine v. McGoon, 86 Ill. 431; Aulger v. Clay,
109 Ill. 487; Bryan v. Maume, 28, Cal. 238.)
Baker, Wines & Dorsey, for the Railroad Company.
I. A tender was clearly shown. The company had a legal right to pay the tax upon any
separate subdivision of its property.
right to pay the tax upon any separate subdivision of its property. If the company had a right
to pay, it had an equal right to offer to pay; in other words to make a tender. (State v. C. P. R.
R. Co., 25 Pac. Rep. 442.) The amount placed in the hands of the express agent to be retained
by him as county treasurer was the full sum due, or claimed by the state for taxes, as shown
by the assessment roll, upon all its property in Lander county for the year 1888, save and
except lands. Where the amount tendered is the full amount demanded by the creditor and
admitted by the debtor, a request for a receipt in full for the particular claim which the parties
then had in mind, does not defeat the tender. (Halpin v. Phoenix Ins. Co., 118 N. Y. 165,
176.)
II. The company had no such possessory claim to the lands in controversy as is the
subject of taxation. If the claim be based upon possession, it must be an actual possession,
and actual possession cannot be inferred from the facts and conditions shown in these actions.
(Hersee v. Porter, 100 N. Y. 403; Hale & Norcross G. & S. M. Co. v. Storey Co., 1 Nev. 104;
State v. Moore, 12 Cal. 56; People v. Shearer, 30 Cal. 645; People v. Cohen, 31 Cal. 210;
People v. Frisbie, 31 Cal. 146; People v. Crockett, 33 Cal. 150; People v. Castro, 39 Cal. 65,
69; Riley v. Lancaster, 39 Cal. 354; People v. Black Diamond, 37 Cal. 54; Barrett v.
Amerein, 36 Cal. 322; People v. Morrison, 22 Cal. 74; Hall v. Dowling, 18 Cal. 619.)
III. Prior to July 10, 1886, surveyed unpatented lands, embraced within the grants to the
Pacific railroads, were not taxable by the state authorities so long as the lien of the
government for the costs of surveying, selecting and conveying such lands remained an
existing lien.
IV. Congress does not possess the power, nor has it ever asserted, nor attempted to
exercise the right to, in any way, regulate tax sales made by the constituted authorities of the
states, nor to prescribe what shall be the status of purchasers, nor to say who may, or who
may not become purchasers at such sales.
V. The lien of the United States for the costs of surveying, selecting and conveying is still
a present, existing lien upon these surveyed unpatented lands, and will remain so until such
costs are paid, or the lien waived in some positive manner by the general government, or by
the state acceding to the terms imposed by the act of 1SS6.
the general government, or by the state acceding to the terms imposed by the act of 1886.
VI. The intention of congress to strictly maintain the lien of the government, without
becoming involved in complications with the states, is clearly shown in the act of July 10,
1886.
VII. Congress only consented to waive the right to insist upon this lien to the extent of
defeating a state tax, upon condition that the state would grant to the general government a
right or privilege which it could not otherwise possess in common with the power in the state
to tax, to-wit: The right and privilege to become and be recognized as a preferred purchaser at
state tax sales.
VIII. Prior to the passage of the act of 1886, the United States could not have been a
preferred purchaser at a state tax sale; that it is not such a preferred purchaser at this time, and
cannot become such without the consent of the state.
IX. The consent to the exercise of the taxing power by the state was conditional, and until
the terms and conditions upon which such consent was given, have been accepted or
complied with, and thus, the lien of the United States protected, and its superiority recognized
by the state, the power of taxation does not exist.
X. A lien in favor of the United States paramount to the lien of the state for taxes, cannot
be created by the sole act of the party assessing and maintaining such lien, and such
paramount lien can only exist by, or be created with the consent of the state, and congress has
imposed this condition precedent upon the exercise of the taxing power by the state.
XI. The state of Nevada has not seen proper to declare by its legislature, that a purchaser
at a tax sale made by it, shall take such tax title, subject to the lien of the United States, nor
that the United States may, if it so desire, become a preferred purchaser at such sale, and
therefore the government is not concluded, and the company may make this defense, under
the decision of the supreme court reported in 115 U.S., pages 600 and 610.
XII. The intention of congress is clearly shown by the provisos in the first section of the
act of July 10, 1886, and these provisors restrict, limit, modify and control the enacting or
granting clause of the section.
XIII. There was included in the judgment the tax upon one hundred and twenty-two
thousand eight hundred and twenty-four acres of surveyed unpatented lands, and to that
extent the judgment is erroneous.
hundred and twenty-two thousand eight hundred and twenty-four acres of surveyed
unpatented lands, and to that extent the judgment is erroneous.
In this case there are cross appeals, but for convenience they will be considered together.
In the year 1888 the defendant was assessed in Lander county upon its railroad and a large
amount of other property, including the possessory claim to both surveyed and unsurveyed
lands embraced within the United States land grants of 1862 and 1864 to the Pacific railroads.
Upon all the property, except land, the defendant tendered the taxes due before they became
delinquent, and subsequent to the commencement of the action, upon demand of the district
attorney, the amount so tendered was paid to him. The action was then continued for the
purpose of recovering the taxes due upon the lands, and the penalties upon the other taxes
assessed, upon the theory that the tender was not sufficient. The state recovered for the taxes
and penalties upon the surveyed lands, and from this part of the judgment the defendant
appeals. But the court held that the unsurveyed lands were not subject to taxation, and that the
tender and payment of the other taxes were sufficient to avoid the penalties, and from these
rulings the state appeals.
In our judgment the questions presented concerning the taxability of the surveyed and
unsurveyed lands have been substantially settled by this court in the cases of State v. Central
Pac. R. Co., 20 Nev. 372, and State v. Central Pac. R. Co., 21 Nev. 94, which were followed
by the court below; but notwithstanding, as new points are urged upon these appeals, we have
given the matter a careful reconsideration.
Taxation of surveyed, but unpatented, lands within the Pacific grants.
A part of the lands assessed were patented to the defendant, and as to these it seems to be
admitted that the judgment is correct. But as is well known, the supreme court of the United
States, in the cases of Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22
Wall. 444, and Northern Pac. R. Co. v. Traill Co., 115 U.S. 600, held that the United States
still retained a lien upon the unpatented lands for the cost of surveying, selecting and
conveying them, and that until such costs were paid the lands were not subject to state
taxation for the reason, as stated, that to permit a sale of them for taxes would destroy
that lien, or at least embarrass the government in the assertion of its right to recover such
costs.
surveying, selecting and conveying them, and that until such costs were paid the lands were
not subject to state taxation for the reason, as stated, that to permit a sale of them for taxes
would destroy that lien, or at least embarrass the government in the assertion of its right to
recover such costs. As it was also held that the grants were grants in proesenti, conveying to
the companies the full beneficial ownership of the lands, including the right of possession,
there was no occasion for them to pay such costs, and the result was that for years the Pacific
railroads substantially escaped all taxation upon the grants. To remedy this, congress by act of
July 10, 1886 (Stat. U.S. 1885-87, p. 143), enacted that no such lands, except unsurveyed
lands, should be exempt from taxation by reason of that lien; provided that at any sale for
taxes the purchaser must take the land sold subject to the lien; and further, that at such sale
the United States may become a preferred purchaser, in which case the lands sold shall be
restored to the public domain.
As we understand the defendant's contention, it is now urged that congress did not intend
by this act to entirely waive this lien and make the land absolutely subject to state taxation,
but only upon the condition that the lien of the government for such costs should still subsist,
and that at any sale for taxes the United States may be a preferred purchaser. Upon this
postulate it is then argued that as it was held in the cases mentioned that a sale by the state for
taxes would destroy the lien, in the absence of a legislative act accepting the conditions
mentioned, a sale by the state would still have the same effect, and consequently the right to
tax does not yet exist; also, that in the absence of a legislative act authorizing it, the United
States has no right to become a preferred purchaser at a tax sale, and consequently this
condition has not been fulfilled.
Whatever difficulty there may be in rendering a decision that will be entirely in harmony
with the principles asserted in Railway Co. v. Prescott and cases following it, we think that
several satisfactory answers may be made to this argument.
1. As the sovereign proprietor, congress has full power to dispose of the public lands upon
such terms and under such conditions as it may deem proper. (Irvine v. Marshall, 20 How.
561; Vansickle v. Haines, 7 Nev. 261.) Thus in Gibson v. Chouteau, 13 Wall. 99, it is said:
With respect to the public domain, the constitution vests in congress the power of
disposition and of making all needful rules and regulations.
of making all needful rules and regulations. That power is subject to no limitations. Congress
has the absolute right to prescribe the times, the conditions, and the mode of transferring this
property, or any part of it, and to designate the persons to whom the transfer shall be made.
It will scarcely be denied that the right which the United States still has in this land is an
interest in the public domain, as such, and over which it has such full authority. Having such
authority no reason is perceived why the provisos in the act of July 10, 1886, do not become
the supreme law of the land, so far as the taxation of these grants is concerned. Admittedly,
congress has no right to enact laws regulating generally the assessment, the taxation, or the
sale for taxes of property in the different states. But as to these lands, the United States is
both a proprietor and a sovereign. The act of congress disposing of them become general laws
binding upon all, because all such acts are specially within the powers conferred upon it by
the constitution. There is nothing in the act of July 10th indicating that congress expected a
legislative acceptance by the states of the terms proposed, and in our judgment there is no
occasion for such acceptance. The act is a grant, or in the nature of a grant, to the states and
territories, in which the conditions become the controlling law. That act and the state statutes
concerning revenue must be construed together. All the state laws apply to the taxation of
these lands until they come in conflict with the conditions prescribed by congress, and then
they must give way. Thus construed, we perceive no reason why they may not, without
further legislation, work harmoniously together.
2. As just stated, the act of July 10, 1886, is a grant to the state, granting it the privilege,
so far as the United States is concerned, of taxing a large amount of property which
previously had not been subject to taxation. It conferred a benefit upon the state, to the
acceptance of which there can be no possible objection. Under these circumstances,
conceding it to be necessary that the state should have accepted the conditions of the grant, in
the absence of a showing that it has refused to do so, such acceptance is to be presumed.
(Railroad Co. v. Lowe, 114 U.S. 525, and 27 Kan. 749.)
Again, it would seem that the fact that these lands have been assessed by the state, and that
the state is now in court endeavoring to enforce that assessment, which without this act it
clearly had no right to assess, should, of itself, be considered an acceptance of the
conditions therein contained.
oring to enforce that assessment, which without this act it clearly had no right to assess,
should, of itself, be considered an acceptance of the conditions therein contained.
3. It will be noticed that it is only the possessory claim to this land that is assessed.
Whatever may be the meaning of this term possessory claim, and we shall consider it more
at length hereafter, it is evident that the thing attempted to be taxed is something less than the
fee. While, in view of the fact that any sale of government land for taxes is simply null and
void (McGoon v. Scales, 9 Wall. 23; Black, Tax Titles, Sec. 129), it is difficult to understand
how any such sale could ever affect the government title or its lien upon the land; it is clear,
under the decisions, that it would not do so here. Against such an assessment, whatever may
be said of its validity otherwise, no objection could ever have been made upon the ground
that it was an attempt to subject the property of the United States to taxation. Nothing but the
defendant's interest in the land can be reached by such an assessment. It cannot possibly affect
the government title or lien any more than a voluntary sale by the defendant would do so.
(Wright v. Cradlebaugh, 3 Nev. 341; Forbes v. Gracey, 94 U.S. 762.) We conclude that the
surveyed lands were properly held to be subject to taxation.
Possessory claim to unsurveyed lands.
The answer denies that the defendant had any possession, possessory claim, or possessory
interest, in the land assessed, or any right or interest therein, except such as it derived under
the land grants already mentioned. It is contended that this is insufficient because it does not
comply with Gen. Stat. Sec. 1108, and deny all claim, title or interest in the property
assessed.
All real estate, whether it is the title in fee or the possessory claim that is assessed, is to be
assessed to the owner; if it is not, the assessment is void. Sometimes, however, there is more
than one person claiming to be the owner, and justice does not require that the rule stated
shall be extended further than is necessary for the protection of the parties interested in the
property. It is often difficult to determine among several claimants who the true owner is, and
the statute has consequently provided that the one to whom it is assessed must, to avoid the
assessment, not only plead that he is not the owner, but also deny all claim, title or interest in
the property.
all claim, title or interest in the property. But section 1108 provides for several defenses,
besides this denial; among others, that the property is exempt from taxation. The defendant
may plead any or all of these defenses, or set up one as to part of the property, and others as to
the rest. If he is assessed for the land itself, instead of the possessory claim, and the title is
still in the government, under the plea of exemption of United States property, he may escape
all taxation. (Wright v. Cradlebaugh, 3 Nev. 341.) Land held under the pre-emption or
homestead law is exempt from taxation until the issuance of the final certificate, and this is a
defense available to the pre-emption or homestead claimant. (Carroll v. Safford, 3 How. 441;
Witherspoon v. Duncan, 4 Wall 210.) But here we have a case where there may be two estates
in the same landtitle in fee and title in possessionof which one is subject to taxation and
the other is not. What possible reason can there be for refusing to allow the taxpayer to deny,
under one clause of the statute, the claim or ownership which is subject to assessment, and
plead that the other is exempt? The facts are what constitute the defense, and not the technical
manner in which they are stated. To illustrate, in this very case, although the answer denies
possession or possessory claim to the surveyed land, it does not state facts showing that the
defendant has not such an interest in that land as is subject to taxation, and consequently the
answer as to such land is insufficient. But as to the unsurveyed land, the title is still in the
government, and we held upon the former appeal of the case (21 Nev. 94) that whatever claim
the defendant had by virtue of its grant alone, is exempt from taxation. Then if it has no
possessory claim thereto, it has nothing that can be taxed. The defenses set up are certainly
within the spirit and meaning of the act, and we conclude that the answer is sufficient.
Do the facts show that the defendant has a possessory claim to this land, within the
meaning of the revenue law?
Gen. Stats. Sec. 1088, directs that all real estate including the ownership, or claim to, or
possession of, or right of possession of any land or improvements. shall be subject to
assessment. Upon this point it is stipulated that said defendant has heretofore mortgaged said
lands described in the complaint and has at divers times leased various portions of it. That
said defendant has never had any other possession of any part of said lands than such as may
be inferred from executing said mortgages and leases and by virtue of the land grants to
it of 1S62 and 1S64."
of said lands than such as may be inferred from executing said mortgages and leases and by
virtue of the land grants to it of 1862 and 1864.
Generally, it is the full ownershipthe title in fee of lands, or what is equivalent to
itthat is assessed. In the absence of a showing to the contrary, it is presumed that the
assessment is based upon this title. (Wright v. Cradlebaugh, supra.) It is believed that the
case of possessory claims to the public lands is the only exception to this rule.
But in the new states and territories, where the settlements were generally in advance of
the public surveys, it was found that often large and valuable properties were situated upon
land to which no title could be obtained. Under such circumstances it became a necessity that
some rule should be found for determining in whom the right to this property lay, and the
most natural as well as equitable, was that it belonged to the first possessor or his grantees.
Accordingly, such possession has been treated as title sufficient to maintain trespass,
ejectment, and many other actions. Such possessory interests have been subject to contract
and sale almost as freely as title in fee. They descend to the heir and constitute assets of the
estate in the hands of the executor or administrator. But such possession, to be of any validity,
must be actual and substantial. It must be an actual occupation, a complete subjugation to
the will and control, a pedis possessio. The mere assertion of title, the casual or occasional
doing of some act upon the premises, have never been held sufficient. * * * By actual
possession is meant a subjection to the will and dominion of the claimant, and is usually
evidenced by occupation, by a substantial inclosure, by cultivation, or by appropriate use,
according to the particular locality and quality of the property. (Robinson v. Mining Co., 5
Nev. 44, 66, 67; Coryell v. Cain, 16 Cal. 573.) Unable to tax the land itself, by reason of the
title being in the United States, the plan was evolved of taxing this possession and possessory
right, as something separate and distinct from the title, and which was, in all other ways,
treated as property. There were then two titles which subjected land to state taxation: First,
title in fee; secondly, where the title was still in the government, but the person taxed was the
owner of the right to the actual possession. This possession is something entirely separate and
distinct from the title and in no wise dependent upon it. It is not the possession that is
presumed to follow the title.
session that is presumed to follow the title. The very situation which induced the legislature
to adopt the scheme of taxing possessory claims shows that it was actual possession that was
meant. If the title was in the individual, the land was what was taxed. If it was public land,
and unoccupied, there was nothing subject to taxation. If occupied, it was the actual
possession of the land, with the improvements placed thereon, that constituted the property to
be assessed.
While the language of the statute is quite broad, it must be remembered that it is always
property, and not a mere claim to it, that is to be assessed. The terms used must be considered
as largely convertible and synonymous. This is the view that seems to have been taken by the
courts. Thus, in People v. Frisbie, 31 Cal. 146, it is said: The term claim,' as used in this
provision means something more than the mere assertion of the party assessed that he owns
the property described in the list. While the word carries with it the idea of such assertion, it
involves also the idea of an actual possession of the land claimed. It is possession claiming
the land that is liable to be taxed. (Barrett v. Amerein, 36 Cal. 322.) State v. Moore, 12 Cal.
56; People v. Shearer, 30 Cal. 645; Hale & Norcross Co. v. Storey Co., 1 Nev. 104, are to the
same effect.
As appears from the stipulation, the defendant here has never had any actual possession of
the land. So far as shown there is no actual possession in any one to which it can make any
claim, nor does it make any. The fact that the defendant has mortgaged the land or leased it,
neither constitutes actual possession or claim to such possession, nor do those instruments
confer upon the mortgagee or lessee any right to the possession. Under these circumstances
the title to the land not being subject to taxation, there is nothing else to tax.
Tender. In our judgment the tender of the taxes to the treasurer, as ex-officio tax receiver,
and their subsequent payment to the district attorney, were sufficient to avoid the penalties.
The defendant, at the proper time, tendered all the taxes due upon all its property, except land.
We held upon the former appeal that it had a right to make such payment, and need not tender
the full amount due upon the entire assessment, which included other subdivisions of
property. The tender was doubtless refused upon the theory that the defendant must pay upon
all or none. The receipt demanded seems to have been in proper form, and was one that the
statute {Gen.
been in proper form, and was one that the statute (Gen. Stat. Sec. 1096) requires the tax
receiver to give upon payment of the taxes. Whatever may be the general rule as to the
validity of a tender accompanied by a demand for a receipt for the debt, we are clearly of the
opinion that where the statute requires such a receipt to be given, it is a right that the debtor
may insist upon. (2 Benj. Sales, Sec. 1078; Cole v. Blake, Peake, 239; Saunders v. Frost, 5
Pick. 270.) Again, the only objection seems to have been to the amount of money tendered,
and not to the demand for a receipt. Under such circumstances, it seems just to hold that any
objection to the receipt or its form was waived. (2 Whart. Cont. Sec. 977; Richardson v.
Jackson, 8 Mees. & W. 298.) The money being promptly paid to the district attorney when
demanded by him, it must be presumed that the tender was kept good.
The judgment and orders overruling motions for new trial are affirmed.
____________
[Nos. 1354 and 1357.]
THE STATE OF NEVADA, Appellant, v. THE CENTRAL PACIFIC RAILROAD
COMPANY, Respondent (No. 1354); and THE STATE OF NEVADA, Respondent, v. THE
CENTRAL PACIFIC RAILROAD COMPANY, Appellant (1357).
Railroad CompaniesTaxation of Lands.Former cases to the effect that surveyed lands within the Pacific
railroad grants are subject to taxation, and that unsurveyed lands are not, followed.
Splitting Single Causes of ActionTax CasesDefenses.Ordinarily a single cause of action cannot be split
up, and several actions brought upon it. This is a rule, however, of the common law, which may be changed
by statute. In tax cases this change was made when the legislature provided that only certain defenses can
be made to such actions, among which this defense is not included.
Right of TaxationPowers of Legislature.The right of taxation, inherent in every form of government, is
vested in the legislature, and is unlimited in that body, except as restrained by constitutional provisions.
The legislature may fix the amount, the time, and the manner of imposing taxes, and may regulate the
processes and methods by which they are to be collected.
Constitutional ProvisionCollection of Delinquent TaxesImproper Defenses.The constitutional provision
that no person shall be deprived of property without due process of law does not require that delinquent
taxes shall be collected by an action in court nor under the forms of legal procedure.
nor under the forms of legal procedure. If that method is adopted, the procedure is very much in the
discretion of the legislature. All that is required, under any system, is that the substantial and fundamental
rights of the taxpayer shall be protected. All defenses that savor of technicality only, or that do not show
that he is being unjustly subjected to taxation, may be excluded.
Power of LegislatureFormer Recovery.The legislature has the power to provide that a former recovery shall
not constitute a defense to an action to recover taxes.
Cross appeals from the District Court of the state of Nevada, Lander county.
J. D. Torreyson, Attorney General, J. B. Egan, District Attorney of Lander county, and
I. Our brief in appeals Nos. 1353 and 1356 are equally applicable here, and are referred to
and made a part of this brief.
II. The state can not be estopped from collecting its taxes or revenues. There can be no
estoppel by judgment except judgment on the merits. There has been no such judgment here.
It is only where the point in issue has been determined that the judgment is a bar. (Herman's
Estoppel & Res Judicata, 332; Andrews v. School District, 35 Minn. 70; Philpott v. Brown,
16 Nev. 387; Wheeler v. Ruckman, 51 N. Y. 391; Wells Res. Adjudicata and Stare Decises,
375; How v. Austin, 35 Ill. 396; Manhattan v. Broughton, 109 U.S. 121; Bigelow's Estoppel,
3d Ed. 30.)
I. The attention of the court is called to our briefs in appeals Nos. 1353 and 1356.
II. A cause of action for the taxes due Lander county was one obligation or duty on the
part of defendant, and an entire demand on the part of the county, and the rule is of general
application that a recovery of a part of such demand is a bar to a suit for the remainder. As the
liability of the defendant sprung from a single act, viz: the non-payment of the tax, it follows
that there was but a single cause of action.
follows that there was but a single cause of action. The general rule as to when an action is
entire is well illustrated in the following cases: Bendernagle v. Cocks, 19 Wend. 207; Secor
v. Sturgis, 16 N. Y. 548; Trask v. H. & N. R. R. Co., 2 Allen 332; Cunningham v. Harris, 5
Cal. 81; Wetmore v. San Francisco, 44 Cal. 302; Ewing v. McNairy, 20 Oh. St. 321; Gould v.
Evansville, 1 Otto 532; Warren v. Comings, 6 Cush. 103; Baird v. United States, 96 U.S.
432; Herriter v. Porter, 23 Cal. 388; Bigelow v. Winsor, 1 Gray 301; Bartels v. Schell, 16
Fed. Rep. 34; Stein v. Steamboat, 17 Oh. St. 471; Borngesser v. Harrison, 12 Wis. 544;
Nightengale v. Scannel, 6 Cal. 516; Skyes v. Gerber, 98 Pa. St. 179; Smith v. Jones, 15 Johns
229; Willard v. Sperry, 16 Johns 121; Hughes v. Dundee Mortgage Co., 26 Fed. Rep. 831;
Black on Judgments, Sec. 735.
III. It is stipulated as a fact that the costs of surveying, selecting and conveying one
hundred and twenty-two thousand eight hundred and twenty-four acres of the unpatented land
described in the amended complaint have not been paid. By the first section of the act of
congress of July 10, 1886, the United States government agrees that its lien for surveying,
selecting and conveying shall not prevent enforcing payment of taxes due upon surveyed,
unpatented lands included within the land grants of congress; provided, the United States may
become a preferred purchaser at any sale of such lands under the act referred to. The state of
Nevada, however, has failed to provide that the United States may become such preferred
purchaser. Where a statute confers a new right or privilege the grant is strictly construed, and
the mode prescribed for its acquisition, enforcement and enjoyment is mandatory. (Sutherland
on Stat. Con. Sec. 458; 8 Nev. 257; 111 Mass. 308.)
In this case there are cross appeals which will be considered together. The action was
brought to recover taxes for the year 1889 upon the same lands as those under consideration
in the cases of State v. Central Pac. R. Co., 21 Nev. 247. The questions presented concerning
the taxability of a possessory claim to surveyed and unsurveyed lands, within the defendant's
land grant, are the same as those presented in the cases mentioned, which will be followed
here.
The only other question involved is that concerning a plea of estoppel by a former
judgment, set up by the defendant.
By this plea, and the proofs, it appeared that an action had been commenced against the
defendant to recover the taxes due upon this land, as well as a large amount of other property
assessed to it in the same year; that upon the trial of that action the district attorney dismissed
as to all of said lands, no evidence was offered concerning them, and the case then went to
judgment upon the issues raised concerning the taxes due upon the other property. Does this
constitute a bar to the maintenance of this action?
In actions between individuals, a single cause of action, either upon contract or for a tort,
will support but one action. If a single cause is split up, and two or more actions brought upon
it, a judgment entered in one of them is held to be res adjudicata as to the whole cause of
action, and will be a bar to the maintenance of the others. (Freem. Judgm. Sec. 238; Black,
Judgm. Sec. 734.) This is the general rule, not by reason of any statutory provision to that
effect, but as a general principle of the common law, which, subject to certain exceptions
unnecessary to be noticed here, is usually recognized and enforced.
This principle, however, like all common law rights which have not been perpetuated by
our constitution or the constitution of the United States, is subject to legislative control and
direction, and may be annulled, or certain cases excepted from its operation, at the pleasure of
that body. It is claimed that this has been done by Gen. Stat. Sec. 1108 (re-enacted, Stat.
1891, p. 135), which after enumerating certain defenses which a defendant in an action to
recover taxes may make by answer, and which do not include that of a former recovery,
further provides that no other answer shall be permitted.
On the other hand it is contended that the legislature has no power under the constitution
to exclude anything in a tax action that would be available as a defense in other actions, and
although there has never been any direct decision upon the point in this court, it must be
admitted that it has several times been intimated that the legislature has no such power, and
that the defense of a former recovery is as valid in such actions as in any other. We are of the
opinion, however, that a careful consideration of the principles governing the assessment and
collection of taxes will show that in regard to some defenses it does have this right, while
perhaps as to others it does not.
collection of taxes will show that in regard to some defenses it does have this right, while
perhaps as to others it does not.
The right to collect revenue for the support of the government is one of the highest
attributes of sovereignty, and belongs inherently to every political community. The
legislature of every free state will possess it under the general grant of the legislative power,
whether particularly specified in the constitution among the powers to be exercised by it or
not. (Cooley Const. Lim. 6 ed. 587.) Chief Justice Marshall, in the celebrated case of
McCulloch v. Maryland, 4 Wheat. 428, uses this language: The power of taxing the people
and their property is essential to the very existence of government, and may be legitimately
exercised on the objects to which it is applicable to the utmost extent which the government
may choose to carry it. This right to tax, which from necessity is inherent in every form of
government, is vested with us in the legislature; and is unlimited, except as restricted by the
constitution of our state or that of the United States. (Gibson v. Mason, 5 Nev. 283, 305;
People v. Seymour, 16 Cal. 332, 342; Wisconsin Cent. R. Co. v. Taylor Co. 52 Wis. 37, 86.)
It is for the legislature to decide what persons and property shall be reached by the exercise
of this function, and in what proportions and by what processes and instrumentalities taxes
shall be assessed and collected. (St. Louis v. Ferry Co., 11 Wall. 423, 429.)
These principles being admitted, or established, we may direct our attention at once to the
constitution, to ascertain whether any provision therein contained requires that the defense set
up in this action shall be permitted, or forbids the legislature from excluding it.
It will be observed that the plea we are considering does not allege that the taxes sued for
were not properly levied or assessed or a proper charge against the defendantin fact we
have determined that a part of them are propernor does it assert that they have been paid.
The defense is one purely technical, and founded on what was clearly an irregularity upon the
part of the district attorney in the management of the former case. The only suggestion made
is that the statute excluding it is in conflict with section 8, art. 1, of the constitution of this
state, which declares that no person shall * * * be deprived of life, liberty, or property,
without due process of law.
But it may be confidently asserted that this provision is only applicable to a limited extent
to a proceeding to collect taxes. It certainly does not mean that there must necessarily be a
decree or judgment or any action of a court whatever, to authorize the legal taking of property
for taxes. (State v. Allen, 2 McCord, 55, 60; McMillen v. Anderson, 95 U.S. 37, 41; Davidson
v. New Orleans, 96 U.S. 97, 102.) If such were the case, the summary proceedings for their
collection in such general vogue throughout the states, and now by our statute applicable to
all cases where the taxes due amount to less than three hundred dollars, would not be
admissible. But such summary methods are sanctioned by both precedent and practice, and
are held not to conflict with the constitution. (McCarroll v. Weeks, 5 Hayw. 246, 253;
Cooley, Const. Lim. 639; Cooley, Tax'n, 302; Black, Tax Titles, Sec. 44; 1 Blackw. Tax
Titles, Secs. 75-100.) The only limitation that seems to be placed upon the power of the
legislature to provide for such a system, is that the legislature cannot direct that the purchaser
at such a sale shall be put in possession forcibly, and without a judicial hearing. (Calhoun v.
Fletcher, 63 Ala. 574, 582; Black, Tax Titles, Sec. 226; Blackw. Tax Titles, Sec. 75.) While
the cases are not all in harmony as to just how far the legislature may go in dispensing with
all action of the courts in the collection of taxes, it may be confidently asserted that such
statutes will be held constitutional if by any means the taxpayer is still left the privilege of
appealing to the courts for the protection of his substantial rights in the premises. All
technicality may be disregarded, and only the most meritorious objections allowed to
constitute a defense to the titles transferred by such proceedings. Upon this point Mr.
Blackwell in his treatise on Tax Titles, Sec. 75, makes this summary: Practically, the result
of the cases is as follows: (1) Proper provision for notice to the taxpayer must be made. It is
not within the power of the legislature to dispense with that, nor to cure its absence. (2) If the
taxes are paid before sale the proceedings are void, and no legislature can give title by, or
cure title founded on a sale, after the taxes for which the land was ostensibly sold were paid.
(3) In other respects the legislature may enact the conditions of sale, and may provide as to
the manner of all proceedings. Perhaps this statement of the law is not sufficiently guarded
in some respects, but a review of the cases will show that the legislature is vested with a
large amount of discretion in determining what shall or shall not constitute a defense to a
proceeding to collect taxes.
but a review of the cases will show that the legislature is vested with a large amount of
discretion in determining what shall or shall not constitute a defense to a proceeding to collect
taxes.
A statute of the United States, providing for the imposition and collection of direct taxes,
authorized the officer selling under summary process to issue a certificate to the purchaser
which was to be prima facie evidence of the regularity and validity of the tax sale, and of the
title of the purchaser under it, and enacted that it should only be affected by proof that the
lands were not subject to the tax, or that it had been paid previous to the sale, or the land
redeemed subsequently. This statute was reviewed in De Treville v. Smalls, 98 U.S. 517, and
strictly upheld. It is there said (page 525): Besides, all possible attack upon the prima facies
of the certificate was limited by the express provisions of the act, which enacted, as before
stated, that it should only be affected as evidence of the regularity and validity of the sale, by
establishing the fact that the property was not subject to taxes, or that the taxes had been paid
previous to the sale, or that the property had been redeemed. This left to the owner of lands
subject to the tax every substantial right. It was his duty to pay the tax when it was due. His
land was charged with it by act of congress, not by the commissioners; and the proceeding
ending in a sale was simply a mode of compelling the discharge of his duty. All his
substantial rights were assured to him by the permission to show that he owed no tax, that his
land was not taxable; that he had paid what was due, or that he had redeemed his land after
sale. He was thus permitted to assert everything of substanceeverything except mere
irregularities. We do not feel at liberty to disregard the plain intention of the acts of congress.
We are not unmindful of the numerous decisions of state courts which have construed away
the plain meaning of statutes providing for the collection of taxes, disregarding the spirit and
often the letter of the enactments, until of late years the astuteness of judicial refinement had
rendered almost inoperative all legislative provisions for the sale of land for taxes. The
consequence was that bidders at tax sales, if obtained at all, were mere speculators. * * * To
meet this tendency of judicial refinement very many states have of late adopted very rigid
legislation. The acts of congress we are considering must have had it in view. Hence the
stringent provisions they contain.
contain. They declare, in effect, that the certificate of the commissioner's sale shall be
evidence of compliance with the preliminary requisites of the sale, and that this evidence
shall be rebutted only by proof of one or the other of three specified things. There is no
possible excuse for not enforcing such statutes according to their letter and spirit. This ruling
was again affirmed in Keeley v. Sanders, 99 U.S. 441.
In Iowa, a statute providing for summary sales of land for taxes enacted that the deed
issued upon such sale should be prima facie evidence of certain facts, and conclusive
evidence of others, which, of course, had the effect of declaring that the latter facts should not
constitute any defense in an action between the owner of the land and the purchaser at a tax
sale. In passing upon the validity of such legislation, the court, in Allen v. Armstrong, 16
Iowa, 508, 512, says: There are minor matters in regard to the mode or manner of exercising
the power, which may be dispensed with, and, consequently, whose observance it is within
the power of the legislature to provide, may be presumed from certain evidence, or certain
other facts. * * * After a careful examination of the provisions of the section under
consideration (section 784), in the light of the general principles of the law applicable to such
subjects, we must say that there are some matters so vital and essential to any valid exercise
of the taxing power, and in relation to which the deed is by our law made conclusive
evidence, that the law is, as to these of questionable validity. In McCready v. Sexton, 29
Iowa, 356, 389, in an attempt to sum up the law a little more definitely, it is said that the
assessment, the tax levy, the tax warrant authorizing the sale, the sale itself, were essential to
the exercise of the taxing power; that the legislature cannot dispense with an observance of
these essential and jurisdictional steps, but that every other provision of every revenue law
may safely be said to be directory only, and not essential to the exercise of the taxing power;
and that consequently the legislature may dispense with them altogether, or provide that their
non-observance shall not constitute any defense.
In Abbott v. Lindenbower, 42 Mo. 162; Id. 46 Mo. 291, a similar statute came under
consideration. For the purpose of invalidating the tax deed, which the plaintiff had placed in
evidence, the defendant there offered to prove (1) that the land had not been duly assessed for
the year 1863 at the time and in the manner required by law;
in the manner required by law; (2) that the land was not assessed in the name of the real
owner, or any former owner, or any tenant or occupant of said land; (3) that all the land in the
county had not been assessed, but much of it omitted from the assessment of that year; (4)
that the tax book was not made out nor delivered to the collector in the manner or at the time
prescribed by law; (5) that the collector did not proceed with collection of such tax book, nor
give notice of the time and place where he would receive the taxes assessed for said year, as
required by law; (6) that the delinquent list was not made out and returned by the collector at
the time or in the manner prescribed by law; (7) that the collector did not give, nor was the
judgment rendered upon, proper notice of his application for judgment against said land for
the taxes and costs due thereon; (8) that no precept for the sale of said land had been issued
by the clerk; (9) that the land was not sold at the court house door, nor in the smallest
subdivision into which it could be divided, but was sold in gross. All these offers were
excluded and the court held properly so, except as to the second and seventh, which it was
said were essential and jurisdictional, and such as the legislature could not dispense with.
With regard to the other matters of evidence above enumerated [except those two] we are
inclined to think they were not essential pre-requisites to the lawful taxing power in the state,
and that the act cannot be declared unconstitutional for the reason that it makes the deed
conclusive evidence that all those things had been rightly done. They were matters of form
which might be taken against him by default. (42 Mo. 168.) Upon the second appeal, in
reply to the objection that the statute was altogether void, the court said (46 Mo. 296):
Counsel insist that we should require the same amount of evidence to sustain the sale as if
there were no statutory provision concerning the effect of the deed, and pronounce tax sales
to be against common justice and right, and unworthy of favor. It is against common justice
and right for a portion of the people to shirk the payment of taxes, and thus throw an
additional burden upon the better disposed; and courts should give effect to all just legislative
provisions for the subjection of all property to an equal burden.
In Gibbs v. Dortch, 62 Miss. 671, a statute which directed that no such conveyance or list
[to be made by the officer selling for delinquent taxes] shall be invalidated, nor shall any
defense be available against the title thus conveyed in any court of this state, except by
proof that the taxes for which said lands were sold had been paid or tendered to the
proper officer before sale," was upheld, except that it might also be shown in defense that
there had been no assessment of the property, which was required by the constitution.
selling for delinquent taxes] shall be invalidated, nor shall any defense be available against
the title thus conveyed in any court of this state, except by proof that the taxes for which said
lands were sold had been paid or tendered to the proper officer before sale, was upheld,
except that it might also be shown in defense that there had been no assessment of the
property, which was required by the constitution. (See also, People v. Wilkerson, 1 Idaho,
619; People v. Mayor, etc., 4 N. Y. 419, and note, 55 Amer. Dec. 266, 286.) If the legislature
has the power within certain limits to prescribe what shall not be a defense as against a title
transferred by a sale for delinquent taxes, where the taxpayer has had no previous opportunity
for contesting the tax or the proceedings under it, it is perhaps hardly necessary to add that it
may certainly do so under such a system as the one we are considering, where the defense is
to be made prior to the judgment or sale.
In the cases of State v. Min. Co., 13 Nev. 289; 15 Nev. 234, it was conceded by counsel,
and assumed by the court, that taking judgment for a part of the taxes due from a taxpayer
under circumstances similar to those existing here, would be a bar to the maintenance of
another action for the balance due; but the mind of the court was not directed to the statute
which we have been considering, and the cases do not determine the point involved here.
Still, in view of those cases, and of certain expressions to be found in other cases as to the
authority of the legislature to exclude any defense in tax cases, we have examined the matter
at greater length than we should otherwise have done. It may be added that by our
constitution, by the enabling act, and without these by paramount law (Van Brocklin v.
Tennessee, 117 U.S. 151), the state has no right to tax property of the United States, and if
this statute could be so construed as to prohibit setting up the defense that such property is
exempt, it would, to that extent, be null and void. (See State v. Central Pac. Ry. Co., 21 Nev.
94, and State v. Same, 21 Id. 247.) But this sufficiently appears from the principles of
constitutional law already referred to.
Revenuemoney is what the state needs and must have to maintain its credit and keep the
machinery of government in motion. Taxes are assessed upon the property of the people for
the purpose of obtaining it. While the constitution requires that property shall not be taken
from the owner, either for taxes or anything else without due process of law, that
provision, as applied to the collection of taxes, requires the observance only of the most
essential and fundamental steps.
or anything else without due process of law, that provision, as applied to the collection of
taxes, requires the observance only of the most essential and fundamental steps. While the
rights of the individual must be protected, the government should not be unnecessarily
hampered in its efforts to make collections, and certainly a law should not be declared to be
beyond the power of the legislature, unless it appears without reasonable doubt that that body
has exceeded the authority conferred upon it by the constitution. We know of no reason why a
judgment entered for a part of a cause of action should not be a bar to another action, in tax
cases as well as in others, except that the legislature has ordained otherwise, and in that
respect the will of that body is supreme. Certainly it is to the interest of all that tax
proceedings should be as simple, as inexpensive and as certain as possible, but as stated in De
Treville v. Smalls, supra, and admitted by Judge Cooley (Cooley, Tax'n, 354), the history of
legislation upon this subject exhibits a continual struggle between the legislatures and the
courtsthe former endeavoring to clear the matter from technicalities, and the latter hedging
it about by judicial refinement. Our own state is no exception to this tendency, but we do not
think it should be carried further in that direction. We think the power of that body to exclude
the defense offered in this case is clear and unmistakable, and that it is the duty of the court to
follow the law as so established.
The judgment and the orders overruling the motions for new trial are affirmed.
____________
[Nos. 1355 and 1358.]
THE STATE OF NEVADA, Appellant, v. THE CENTRAL PACIFIC RAILROAD
COMPANY, Respondent (No. 1355); And THE STATE OF NEVADA, Respondent, v. THE
CENTRAL PACIFIC RAILROAD COMPANY, Appellant (No. 1358).
Boards of EqualizationJurisdiction and Powers.Boards of equalization can only exercise such powers as are
expressly granted, and when the law prescribes the mode which they must pursue in the exercise of those
powers, it excludes all other modes of procedure.
IdemContinuance of Sessions.Boards of equalization are not required to remain in continuous session
during the time fixed by law for hearing complaints against the assessor's valuation of property, unless
there is business before them to transact.
IdemCessation of Powers After Adjournment.When a board of equalization meets on the day fixed by law
and, there being no business before it, adjourns until a day subsequent to the last day fixed by law for
hearing complaints, its powers cease for the remainder of the year, except to examine the particular cases
designated by the statute.
Cross Appeals from the District Court of the State of Nevada, Lander county.
J. D. Torreyson, Attorney General, J. B. Egan, District Attorney of Lander county, and
I. The complaint stands admitted as to everything except the reduction, and no proof was
made or stipulated as to any other defense set up in the answer. The tax therefore on the land
is admitted. The defendant failed to show that it was unsurveyed.
II. The board of county commissioners and the board of equalization are bodies of limited
jurisdiction, and every step required by statute conferring jurisdiction must affirmatively
appear, otherwise their action is void. The meeting of the two commissioners and their order
of reduction was therefore absolutely void and of no more force than if any other two persons
had met and made such order. (State v. C. P. R. R. Co., Appeal No. 1335, 26 Pac. Rep.; State
v. Washoe, 5 Nev. 319; Hess v. Washoe, 6 Nev. 104; Swift v. Ormsby, 6 Nev. 95; State v. C.
P. R. R. Co., 9 Nev. 79; Sadler v. Eureka, 15 Nev. 39; State v. Canavan, 17 Nev. 422.)
III. The omission of officers to perform the duties required of them between the
assessment and commencement of suit constitutes no defense to a suit. (State v. C. P. R. R.
Co., 9 Nev. 90; State v. Western Union, 4 Nev. 345; State v. C. P. R. R. Co., 10 Nev. 47;
State v. Cal. M. Co., 13 Nev. 289; (State v. C. P. R. R. Co., 20 Nev. 373; State v. Sadler, 23
Pac. Rep. 800.)
I. The law enjoined upon the board the duty to meet upon the third Monday in September,
and continue in session from time to time until the first Monday in October. The order of
adjournment made upon the first day of its session, over the whole equalization period,
and to a date later than the law would permit them to meet as such board, was an act in
excess of their jurisdiction, contrary to law and void.
adjournment made upon the first day of its session, over the whole equalization period, and to
a date later than the law would permit them to meet as such board, was an act in excess of
their jurisdiction, contrary to law and void. The board and everybody else were at liberty to
disregard such adjournment, and it could not be invoked to prevent the board from meeting
on Friday, the 2d day of October, and hearing the complaint of defendant relative to its
assessment, and granting the relief prayed for.
II. It is the policy of the law to afford every person an opportunity to be heard before
depriving him of his property. This is guaranteed by the provisions of our state constitution,
which declare that no person shall be deprived of liberty or property, without due process of
law, which is construed to mean, in accordance with the law of the land, that hears before it
condemns. In the collection of the revenues, these and similar boards have been established in
the various states of the union as tribunals to which the taxpayer may appeal for a redress of
grievances in case he has cause for complaint against the action of the assessor, or of
assessment boards, and have been held by the courts to constitute due process of law under
the federal and state constitutions. (Murray's Lessees v. Hoboken Land Co., 18 Howard 278;
Davidson v. New Orleans, 96 U.S. 97.)
The question as to the right of the state to assess the lands granted to the Central Pacific
Railroad Company by the government was passed upon in the appeals Nos. 1353 and 1356
(21 Nev. 247), and upon the authority of these cases the judgment and orders appealed from
are affirmed.
It appears from the agreed statement of facts, that the assessor assessed the railroad for the
year 1890 at fourteen thousand dollars per mile, and the surveyed lands at fifty cents per acre.
That the board of equalization met on the 15th day of September. There being no business
before them, they adjourned over to the 20th day of October. On the 2d day of October two
members of the board met, set aside the order of adjournment made and entered in the
minutes of the proceedings of the board of the 15th of September, and reduced the valuation
placed upon said railroad from fourteen thousand dollars per mile to twelve thousand
dollars per mile, and from fifty cents per acre to twelve and a half cents per acre on the
land.
railroad from fourteen thousand dollars per mile to twelve thousand dollars per mile, and
from fifty cents per acre to twelve and a half cents per acre on the land. Upon this valuation
the company paid its taxes upon the railroad, but refused to pay on the land, claiming that the
said land was exempt from taxation.
The state claims that the board of equalization having met on the 15th day of September,
which was the third Monday and the day fixed by the statute for said board to meet, and no
business coming before them, and they adjourned over until the 20th day of October, that the
meeting held on the 2d day of October by two members of said board was unauthorized and
illegal, and their acts null and void. The railroad company contends that the board had the
power to meet and act upon any complaint made at any time or any day between the third
Monday in September and the first Monday in October.
Section 1091, Gen. Stat. Nev., reads: The board of equalization shall meet on the third
Monday of September in each year, and shall continue in session from time to time until the
business of equalization presented to them is disposed of; provided, however, that they shall
not sit after the first Monday in October, except as in this section provided. Boards of
equalization act judicially in equalizing property, and while acting within the scope of their
authority, their decisions are conclusive; but when the acts of officers who exercise judicial
functions of limited jurisdiction are questioned, the rule is well settled that they must not only
show they acted within the authority granted, but it must also appear of record that they had
jurisdiction; for the grant of power to such officers must be strictly construed, because when
acting under such special authority they must act strictly on the condition under which the
authority is given. They can only exercise such powers as are especially granted, and when
the law prescribes the mode which they must pursue in the exercise of these powers, it
excludes all other modes of procedure.
By section 1091, Gen. Stat., the board of equalization is required to meet on the third
Monday in September annually, for the purpose of hearing the complaints of persons feeling
themselves aggrieved by the valuation placed upon their property by the assessor, and all
parties are bound to take notice of the day of meeting of said board, as appointed by law, for
that purpose. We cannot agree in the views expressed by the appellant, that the board was
required to remain in session from the third Monday in September until the first Monday
in October.
pellant, that the board was required to remain in session from the third Monday in September
until the first Monday in October. Our understanding of that section is that they shall meet on
the third Monday in September, and if there is any business presented to them, they shall
remain in session, adjourning over from day to day, until all complaints presented are
disposed of, when they may adjourn for the term, or to some future day in the term fixed by
law. It was not the intention of the framers of the law that the board should remain in session
sixteen or twenty days, if there is no business for them to transact; and if a taxpayer has a
grievance to bring before the board, he should be present on the first day of their meeting, and
state his grievance, or notify them that he has a complaint to present, and request them to set a
day during the term in which he can be heard.
It is a salutary principle of law that every person is bound to take care of and protect his
own rights and interests, and to vindicate them in due season, in the proper time, place and
manner pointed out by law, and if a party having the proper means of defense in his power
fails to use them, he will not be aided by the courts.
The term of the board of equalization is fixed by law, and its duration limited. When they
meet at the proper time, they may adjourn from day to day, or to any day during the time fixed
by law for them to transact business, but when they did meet on the 15th day of September,
1890, and adjourned to the 20th day of October, there ceased to be any board of equalization
after that day for that year, as their powers ceased on the first Monday in October as a board
of equalization, except to examine the cases mentioned in the statute, and this does not fall
within that class of cases. Therefore when the two members of the board of equalization met
on the 2d day of October, 1890, not having given notice of such meeting, and proceeded to
hear the complaint of the Central Pacific Railroad Company, and reduced the assessor's
valuation of the railroad from fourteen thousand dollars to twelve thousand dollars per mile,
their acts were unauthorized and illegal, and therefore void.
The judgment and orders appealed from are affirmed.
____________
21 Nev. 275, 275 (1892) Borden v. Clow
[No. 1349.]
R. V. BORDEN, Appellant, v. B. G. CLOW, Respondent.
MortgageAdverse Possession Under Claim of Title.Section 3284, Gen Stat. providing that a mortgage of
real property shall not be deemed a conveyance, whatever its term, so as to enable the owner of the
mortgage to recover possession of the real property without a foreclosure and sale, applies to mortgages
out of possession and does not prevent the running of the statute of limitations, before foreclosure, in favor
of a mortgagee in adverse possession under claim of title.
IdemStatute of Limitations.When a deed to real estate, absolute upon its face, is given to secure a debt, and
there is no agreement when such debt shall become due, the statute of limitations begins to run in favor of
the grantee in possession immediately on the delivery of the deed.
Operation of the Statute of LimitationsPayment of Taxes by the Mortgageor.In an action to redeem
mortgaged real estate the payment of taxes on the land by either the mortgageor or the mortgagee after the
mortgage debt was due will not arrest the operation of the statute of limitations in favor of the mortgagee in
possession, and such action is barred when not brought within six years after the maturity of the debt.
Thos. E. Haydon, and Baker, Wines & Dorsey, for Appellant.
I. The action is not barred by the statute of limitations. The court finds that the deed was a
security and was a mortgage. Appellant paid the taxes on the property for 1880-83.
Respondent paid the taxes in 1884 and each year thereafter to the date of the commencement
of this suit and since. These taxes must all be repaid in all cases of redemption, whether
agreed by the mortgageor to be repaid by him or not, whether paid before or after the
mortgagee took possession. (Jones on Mortgages, Vol. 2, Sec. 1134; Cook v. Kraft, 3 Lan.
(N. Y.) 512; Davis v. Bean, 114 Mass. 360; Dale v. McEvers, 2 Cow. 118; Rapelye v. Prince,
4 Hill 119.) Each payment of such tax was a last transaction, a last item charged or last
credit given within the meaning of the statute of limitations.
21 Nev. 275, 276 (1892) Borden v. Clow
II. Whether the loan by respondent to appellant was barred by the statute of limitations at
the time of the commencement of this suit or not this action to redeem can be maintained,
because under the statute no title could be obtained under the deed given as a mortgage
except by foreclosure. (Hall v. Arnott, 80 Cal. 355-56.)
T. V. Julien and S. D. King, for Respondent.
I. Respondent's demand, debt of appellant to respondent, being barred at the time of
bringing this action, the reciprocal right of appellant to redeem was likewise barred.
(Cunningham v. Hawkins, 24 Cal. 403; Espinosa v. Gregory, 40 Cal. 58; Montgomery v.
Noyes, 11 S. W. Rep. 138; 2 Hillard on Mortgages, Sec. 2; 3 Pomeroy's Eq. Jur. Sec. 1219.)
II. Appellant for years saw respondent treating the property, both land and stock, and
making expenditures thereon, as if the same were his own, and never lisped a syllable of
objection or protest, and is now estopped to assert any contrary right. Appellant by his delay
has lost whatever right he had, if he ever had any, in the premises. (Becker v. Howard, 44 N.
W. Rep. 755; Speidell v. Henrici, 120 U.S. 377.)
This was a bill in equity, to have a deed absolute upon its face decreed to be a mortgage,
asking for an accounting, and that the plaintiff be permitted to redeem. The facts are
substantially that plaintiff, being indebted to the defendant in the sum of seven hundred and
fifty dollars, executed to him a deed absolute in form, conveying eighty acres of land situate
in Washoe county. This deed was executed by the plaintiff and one O. H. Perry on the 29th
day of March, 1880. After the making of the deed, the plaintiff, holding stock of the Highland
Ditch & Water Company, a corporation on which there was an assessment due, borrowed
money from the defendant to pay the same, and assigned the stock to the defendant. Some
time thereafter, another assessment becoming delinquent, defendant paid it, and the plaintiff
surrendered his certificate of stock to the company, and had a certificate issue in the name of
the defendant. This change was made, as claimed by the plaintiff, to secure the defendant in
the payment of the money advanced on assessments.
21 Nev. 275, 277 (1892) Borden v. Clow
advanced on assessments. The defense set up was that both transactions were absolute sales,
and not intended as security for money advanced. The cause was tried by the court without a
jury, and the court found, as facts: That the giving of the deed and the transfer of the stock
were separate transactions; that the stock transaction was a sale or gift, but the giving of the
deed was intended as a mortgage, to secure the payment of the sum of seven hundred and fifty
dollars; denied the prayer of the plaintiff for an accounting, as well as his right to redeem, for
the reason that his right of redemption was barred by the statute of limitation.
Appellant claims that the giving of the deed, and the assignment and transfer of the stock,
was one and the same transaction, and should be considered as such. The court found against
him, and the finding is supported by the evidence. The deed was executed on the 29th day of
March, 1880; the transfer of the stock to the defendant was made on the books of the
company on the 25th day of May, 1883. No conversation was had or agreement entered into
at the time of the delivery of the deed as to indicate any further loans by the defendant. Such
an interval of time had elapsed after the delivery of the deed and the transfer of the stock, that
it could not with propriety have been called one transaction; they were two or more
agreements, and two separate contracts. The evidence is conflicting, the plaintiff and his
step-son testifying as to their understanding of the transaction, which was neither clear nor
convincing. The defendant contradicts them in so far as the assignment and transfer of the
stock, being intended as security for the money advanced, taken in connection with the fact
that stock in the corporation was selling for assessments levied thereon, and the amount of
money paid on assessment by the defendant, supports the finding; and under the well-settled
rule as to conflict, it must be assumed that the transfer of the stock to the defendant was
absolute. The court having found as a fact that the deed given was intended as a mortgage, to
secure the payment of the sum of seven hundred and fifty dollars, the plaintiff argues that no
title could be obtained except by foreclosure and sale; and in support of this view he relies on
sections 3270 and 3284 of the civil practice act. Section 3270 provides for the form of action
for the foreclosure of mortgages, and has no application to this case whatever. Section 3284
reads as follows: A mortgage of real property shall not be deemed a conveyance,
whatever its term, so as to enable the owner of the mortgage to recover possession of the
real property without a foreclosure and sale."
21 Nev. 275, 278 (1892) Borden v. Clow
gage of real property shall not be deemed a conveyance, whatever its term, so as to enable the
owner of the mortgage to recover possession of the real property without a foreclosure and
sale.
It will not be denied that a mortgagee out of possession cannot maintain an action to
recover real property from one in possession until such time as he has obtained the right so to
do by foreclosure proceedings. But this is not an action of that kind, and from aught that
appears in the transcript, the defendant entered into possession of the land in controversy in
March, 1880, claiming to own the same under his deed, and remained in the quiet and
undisturbed possession of the same, until the demand for an accounting was made upon him
in 1889; that during said time the defendant improved said premises in building houses,
fences, clearing the land, and seeding a small portion of it to alfalfa, costing him three
thousand one hundred dollars, and from the testimony given on the hearing, the plaintiff knew
of the improvements being made, never objected to the same in any manner, and in fact
worked in making said improvements for the defendant; showing conclusively that if the
defendant was not holding by virtue of his deed, he was holding adversely to the plaintiff.
Section 3636 Gen. Stat. (Civil Procedure) reads: Whenever it shall appear that the
occupant, or those under whom he claims, entered into the possession of premises, under
claim of title, exclusive of any other right, founding such claim upon a written instrument, as
being a conveyance of the premises in question * * * and that there has been continued
occupation and possession of the premises included in such instrument * * * or of some part
of such premises, under such claim, for five years, the premises so included shall be deemed
to have been held adversely.
It is a rule in regard to the statute of limitations, applicable in all cases, that the statute
begins to run when the debt is due, and an action can be instituted upon it. There was no
agreement between the parties as to when this indebtedness should be paid; therefore the
statute began to run immediately upon the delivery of the deed to the defendant. But it is
claimed by the plaintiff that, he having paid the taxes on the land for the years 1881, 1882 and
1883, he has a right to have the payments considered as a part of the same transaction, which
would in effect bring the case within the provisions of sections 3644, 3645 Gen.
21 Nev. 275, 279 (1892) Borden v. Clow
effect bring the case within the provisions of sections 3644, 3645 Gen. Stat. Nev. Section
3644 reads: Actions can only be commenced within six years upon a contract, obligation or
liability, founded upon an instrument in writing. Section 3645: The time shall be deemed to
date from the last transaction, or the last item charged, or the last credit given. A payment
made by the mortgageor on the mortgage debt would bring the case within the provisions of
section 3645, and the limitation only commences to run from the time of such payment.
We cannot regard the payment of taxes by the plaintiff as the kind of payment
contemplated by the statute. Payment on a debt is equivalent to a new promise to pay the
debt. Such payment, however, must be directly applied in the reduction of the amount due on
the indebtedness. A payment by a debtor upon some outside matter, which the creditor has
never recognized or credited upon the indebtedness, cannot be regarded as a payment on the
account. An application of such matter of payment by the debtor, without the assent of the
creditor, will not prevent the running of the statute of limitation. A mortgageor cannot
manufacture evidence for himself, by making payments upon an indebtedness for which the
mortgagee was not bound to pay. It was the duty of the plaintiff to prove that the payment of
the taxes was such a payment as entitled him to be credited with the amount on the
indebtedness which was the foundation of the transaction. Had the facts been that the
mortgagee entered into possession of the premises under an agreement with the mortgagor
that he should occupy the same, and that the rents should be applied in the payment of the
taxes and extinguishment of the debt, the agreement could readily be enforced; but under the
circumstances in this case there has been no mutualityno meeting of minds of the parties.
The mere fact that the plaintiff paid the taxes was not an extinguishment of the indebtedness
secured by the deed or mortgage. He could not have gone to the defendant, producing his tax
receipt, and demanded that he be given credit upon the mortgage debt. The conveyance being
held to be a mortgage, the plaintiff was paying his own debt due the state and county for
taxes. He had no claim against the defendant for the amount so paid. Payment within the
meaning of the statute must be the actual payment of money, or its equivalent, upon the
principle and interest of the debt. Neither can the plaintiff claim any rights by reason of the
defendant's paying the taxes on the land, because the defendant claimed to be the owner
of the property, and the payment of the taxes by either party would not stay the running
of the statute of limitation against the indebtedness.
21 Nev. 275, 280 (1892) Borden v. Clow
plaintiff claim any rights by reason of the defendant's paying the taxes on the land, because
the defendant claimed to be the owner of the property, and the payment of the taxes by either
party would not stay the running of the statute of limitation against the indebtedness.
The payment of the taxes on the land in this case stands in the same light as the payment of
taxes on property mortgaged. In such cases it is usual to embody in the mortgage that the
mortgageor shall pay the taxes on the land. If he fails to do so, the mortgagee may pay them
and has his lien against the property for the amount of money so paid; but the payment of
such taxes does not become merged in the original indebtedness; it is but an incident thereof.
If paid by the mortgageor, he does so merely to keep his right of redemption good; if paid by
the mortgagee, it is to preserve his lien and keep his security from being encumbered by a
superior lien. It has also been held that when the instrument itself was silent as to who should
pay the taxes, and the party having the equity of redemption fails to pay them, the party
holding the paper title may do so; and, upon a proper showing, a court of equity will, in its
decree of foreclosure, include the amounts paid on taxes as a lien against the property.
But in no event will the payment of the taxes be enforced after the debt is discharged. The
amount due for taxes paid expires with the mortgage. (Hitchcock v. Merrick, 18 Wis. 360.)
The case of Hill v. Townley, 47 N. W. Rep. 653, was an action to foreclose a mortgage. The
statute of limitation had run against the claim. The plaintiff claimed that, by reason of his
having paid the taxes on the property, the action was not barred. The court, in passing upon
this question, said: Taxes paid by the mortgagee upon the mortgaged premises may be
collected with it as a part of and in the same manner as the amount secured by the original
lien. If the mortgage is barred, the claim for taxes, which is merely incidental, must fall with
it. The mortgagee can not extend the time of limitation by his own act, on paying the taxes,
for the protection of the original lien. The plaintiff not having made any payments on the
indebtedness due the defendant for more than six years after the same became due, the right
to redeem was barred by the statute, and the payment of taxes by the defendant could not
inure to the benefit of the plaintiff, because the defendant could not recover them from the
plaintiff. They were a lien against the property.
21 Nev. 275, 281 (1892) Borden v. Clow
The payment had no connection with the original transaction, and could not prolong the life
of the mortgage, and was not such a payment as the defendant could have charged against the
plaintiff as part of the original transaction.
The right to foreclose and the right to redeem are reciprocal and commensurable, and if
one cannot be enforced, that is regarded as sufficient to preclude a claim for the other. If the
right to forclose [foreclose] is barred by the lapse of time, the right to redeem is barred also.
(2 Hil. Mortg. p. 2, Sec. 2; 2 Jones, Mortg. Sec. 1141.)
The doctrine allowing a conveyance to absorb an interest in land which the conveyance
alone did not convey, in order to prevent injury being done to one without fault, is of frequent
application; as where a party had executed an absolute deed, to have effect only as a
mortgage, and had remained in possession of the land which he conveyed, he was denied the
aid of equity to assert his title against an innocent purchaser from the holder of the legal title,
because the proof showed that he was silent when he should have asserted his right of
redemption. Therefore he was not in position to ask equity. The plaintiff's equitable interest
was divested, not by way of transfer, nor by way of release working upon the estate, but rather
by way of estoppel arising from his voluntary act, by having delayed too long, and until his
right to legal remedies had been lost by the remediless lapse of time.
The judgment and order appealed from must be affirmed, and it is so ordered.
case below.
____________
21 Nev. 281, 281 (1892) Bowman v. Boyd
[No. 1348.]
S. W. BOWMAN, Appellant, v. D. B. BOYD, TREASURER AND EX-OFFICIO TAX
RECEIVER OF WASHOE COUNTY, Respondent.
TaxationEvidence of Non-payment of Taxes.On an issue as to appellant's liability to assessment for taxes
on personal property in Nevada, which liability he seeks to avoid by a claim that he is a resident of another
state, evidence that he escaped taxation in the latter state by declaring that his property was situated in
Nevada is admissible as rebutting the presumption that he paid taxes on his personal property at the place
of his claimed residence.
21 Nev. 281, 282 (1892) Bowman v. Boyd
IdemResidence of Taxpayer.Appellant had no fixed place of residence but spent the greater portion of his
time in Nevada attending to mortgage investments made by him there. He claimed to be a resident of
California, but had little property and no business there, and all of his securities were in Nevada. He
escaped taxation in California by stating that his property was situated in Nevada. Held, that appellant
would not be allowed to entirely escape taxation on his personal property, and that as his only business was
conducted in Nevada, the securities on his investments, in the making of which his business consisted, were
properly taxable in Nevada.
Thos. E. Haydon, for Appellant.
I. The law of this state is well settled that money at interest of a non-resident of this state,
secured by mortgage or otherwise, is a chose in action and that such choses in action follow
him to his abode and are not taxable in this state. Therefore the tax on appellant's choses in
action was illegal and void and should have been returned to him by judgment of the lower
court. (State v. Earl, 1 Nev. 397; Drexler v. Tyrell, 15 Nev. 127; State v. Carson Sav. Bank,
17 Nev. 162; Barnes v. Woodbury, 17 Nev. 385; Robinson v. Longley, 18 Nev. 72; Ford v.
McGregor, 20 Nev. 450; Whitmore v. McGregor, 20 Nev. 452; Story on Con. of Laws, Sec.
381; People v. Niles, 35 Cal. 286.)
II. Plaintiff had the right to pay his entire tax to prevent a cloud upon the title to his real
estate, or to remove the same. That the entire tax could be paid under protest and the illegal
part of it recovered back to prevent or to remove such doubt on the title of plaintiff is settled
by the law of this state. (Wells, Fargo & Co. v. Dayton, 11 Nev. 166; Conley v. Chedic, 7
Nev. 336; Ritter v. Patch, 12 Cal. 299; Dodd v. City of Hartford, 25 Conn, 238; Weyse v.
Crawford, 85 Cal. 197.)
T. V. Julien, for Respondent.
I. The record clearly shows that appellant paid the tax voluntarily and without the least
semblance of duress or coercion. When, as in this case, no seizure of the property could have
taken place except by judicial process in which the party would have had his day in court, it
comes clearly within the established rule that "payment of taxes in the absence of legal
duress will be deemed voluntarily, and the money cannot be recovered back."
21 Nev. 281, 283 (1892) Bowman v. Boyd
would have had his day in court, it comes clearly within the established rule that payment of
taxes in the absence of legal duress will be deemed voluntarily, and the money cannot be
recovered back. (Mayor v. Lefferman, 4 Gill. 425; Cook v. Boston, 9 Allen, 393; Mills v.
Austin, 53 Cal. 152; Merrill v. Austin, 53 Cal. 379; Preston v. Boston, 12 Pick. 14; Flower v.
Lane, 59 N. Y. 603; Dillon's Mun. Corp. Secs. 940, 942; Cahaba v. Burnett, 34 Ala. 400;
Tailor v. Board of Health, 31 Pa. St. 73; Mays v. Cincinnatti, 1 Oh. St. 268.)
Plaintiff brought suit in the district court of Washoe county to recover from the defendant,
as treasurer and ex-officio tax receiver of said county, the sum of nine hundred and forty-eight
dollars and seventy cents taxes paid under protest. It is alleged in the complaint that the
plaintiff is, and has been for ten years and more, a resident and citizen of Placer county, state
of California. That during all of said time he has been engaged in loaning money on
mortgages upon real estate and other securities in Washoe county, state of Nevada. That on
the 27th day of March, 1889, the plaintiff being then in Washoe county, the assessor of said
county demanded of him a statement of his taxable property situate within said county. In
compliance with said request the plaintiff furnished said assessor the following list:
Watch, valued at.............................................................................................. $125 00
Money on hand................................................................................................ 1,300 00
Real estate........................................................................................................ 5,500 00

_________

Total $6,925 00
Tax on same.................................................................................................... 165 38
That thereafter the assessor added to said list the following amounts:
Money on hand or in bank.............................................................................. $1,300 00
Money secured by liens or loaned on mortgage, bond, or other securities .... 34,500 00

_________

Added by assessor $35,800 00
Tax on same.................................................................................................... 948 70
Which amount was paid treasurer under protest, November 21, 1SS9.
21 Nev. 281, 284 (1892) Bowman v. Boyd
vember 21, 1889. The cause was tried before the court without a jury, and judgment rendered
in favor of defendant for his costs. From this judgment and the order overruling his motion
for a new trial plaintiff appeals.
The only claim against the validity of the assessment and in support of his protest is that
the plaintiff was a citizen and resident of the state of California. The court found as facts in
the case that the plaintiff was, and had been since 1855, a resident of the state of California.
That for the past two years he had no place of business in that state, and for nine months of
each of the years 1888 and 1889 he was in Washoe county, Nev. The plaintiff testified that
since the year 1855 he had resided at Yankee Jim's, Placer county, Cal. He had a house and
lot and mining claims. From 1855 to 1867 he was engaged in mining. About the latter year
mining was suspended at that place, since which time he had no business there or anywhere
except loaning out money, which he could do and did do wherever he was stopping at the
time, and kept no place for that purpose anywhere. That for about twelve years he has been
loaning out money in Washoe county, Nev., by himself and through his agent. During said
time he would visit Reno, and remain a week or a few weeks at a time. He had given A. H.
Manning, a resident of Reno, a general power of attorney to act for him. In the month of
December, 1888, or early in January, 1889, he came to Nevada on business and remained
until August; then went to San Francisco, remained a month, went to Placer county, remained
about a month, and in November returned to Nevada, where he remained until the trial of this
case, which was in April, 1890. Against his will he has been kept in Washoe county from
temporary calls of business three-fourths of his time during the years 1888 and 1889, during
all his stay in Reno. During those years he occupied a room in his own house and paid rent
for it. The notes and mortgages taken for money loaned in Washoe county and assessed to
him, were in his possession in Washoe county from January until November, 1889.
On the part of the defendant the assessor of Washoe county testified that during the years
1888 and 1889 he had seen the plaintiff almost daily in Reno, with short intervals of absence;
that he was certain that the plaintiff had been in the county eight or nine months in each year.
A. W. Kinley, assessor of Placer county, Cal., testified that he knew the house or residence
of the plaintiff at Yankee Jim's.
21 Nev. 281, 285 (1892) Bowman v. Boyd
Placer county, Cal., testified that he knew the house or residence of the plaintiff at Yankee
Jim's. That it was assessed at one hundred dollars. Had not seen or known of the plaintiff
being in Placer county more than a month or two during the years 1888 and 1889. This
witness was then asked what property had been assessed to plaintiff in Placer county for the
year 1889. Plaintiff objected to such evidence, that it was immaterial and irrelevant to this
controversy, what property was or was not assessed to plaintiff in Placer county, California,
in 1889; that plaintiff is only liable in this state for such property as is lawfully taxable in this
state, whether taxed in another state or not. The objection was overruled, and the plaintiff
took an exception. The witness then answered that no personal property was assessed to the
plaintiff in Placer county, California, in 1889. The witness was then asked what plaintiff
stated to him about where his property was situated when he assessed him. Plaintiff objected
that his statements as to the situs of his property to said assessor were immaterial, as the only
question in this action is whether the property described in his complaint was lawfully subject
to tax in the state of Nevada. Objection overruled. Plaintiff excepted. Witness answered that
plaintiff told him that all his property was situate in the state of Nevada. This evidence was
admissible.
The contention of the plaintiff was that, claiming to be a resident of the state of California,
and the property assessed in Washoe county, being of such character as necessarily follows
the person of the owner, it should be assessed at the residence of such owner. The
presumption would be that such assessment had been made, because every person is
presumed to comply with and obey the law; but such presumption can be overcome by
positive proof. There are no two principles better established in law than those which provide
that a person intends the ordinary consequences of his own voluntary act, and that no man
will be permitted to take advantage of his own wrong. Whenever a party has by his own
declaration, act or omission, intentionally and deliberately misled another, the party making
such misstatements can not in any litigation arising out of such declaration, act, or omission
be permitted to falsify it. Therefore when the plaintiff made the statement to the assessor of
Placer county, California, that the situs of his securities were in Washoe county, Nevada,
and by such declaration he avoided the payment of taxes on such securities in the state of
California for the year 1SS9, he cannot be permitted to say now: Washoe county cannot
assess and collect taxes on my securities, because I am a resident of California.
21 Nev. 281, 286 (1892) Bowman v. Boyd
securities were in Washoe county, Nevada, and by such declaration he avoided the payment
of taxes on such securities in the state of California for the year 1889, he cannot be permitted
to say now: Washoe county can not assess and collect taxes on my securities, because I am a
resident of California. Our statute provides: All property of every kind and nature
whatsoever within this state shall be subject to taxation.
It will not be disputed that money at interest, secured by mortgage or otherwise, follows
the person of the owner, and is taxable to him at his place of residence. But when we speak of
residence for the purposes of taxation, we mean a fixed, permanent place, where a person
transacts his business; the place where the property is located and the taxes paid. A court will
not relieve a party from the payment of taxes until such time as he has shown that he has
contributed his just proportion to the support of the government. The owner of property is
bound to contribute his just share for carrying on the expenses of the government, and he
ought not to be permitted to throw the burden which he should bear on others. Before the
plaintiff could have legally asked for the return of the amount paid as taxes he should have
been in a position to show that the property has been assessed by some other assessor, and he
would be required to pay the taxes.
The case of Hurlbut v. Green, 42 Vt. 318, was for the value of a horse that had been taken
and sold for taxes. The plea was that the party was not a resident of the town in which he was
assessed, but was a resident of the town of Danville. On the trial of the case the defendant
offered to prove that the plaintiff returned no list of his property in the town of Danville in
1866, and was not taxed in that town. The evidence on the plaintiff's objection was excluded.
Passing on the admissibility of the testimony, the supreme court said: The question upon
which the parties were at issue is one of domicile, or whether on the 1st of April, 1866, the
plaintiff was an inhabitant of Waterford for purposes of taxation, or whether at that time he
was an inhabitant of Danville. This question involves not only the fact of an actual residence
of the party, but the intent with which it began and was continued. * * * This is to be
ascertained by the duration of the residence, by what the party said, by his conduct, and by
facts and circumstances which tend to disclose or show how he regarded it; and under some
circumstances, by what he omits or neglects to do.
21 Nev. 281, 287 (1892) Bowman v. Boyd
what he omits or neglects to do. In this case we cannot presume that the plaintiff abandoned
his domicile, and took up a temporary residence in Danville, for the purpose of evading the
payment of his just and proportionate share of taxes, which is a common duty and burden
resting upon all, and hence the requirement that all taxable inhabitants shall give in all their
lists. The plaintiff's acts and conduct are to be considered in the light of, and as affected by,
this requirement. * * * This claim of residence in Danville and the facts are to be considered
in connection and as involved in the issue. Consequently any evidence that had a tendency to
show the falsity of either was admissible. Proof that the plaintiff had given in a list in
Danville would have been admissible in support of his claim, and so would the circumstance,
so to call it, that he did not, as affording an inference that it was unfounded, and that he so
regarded it.
In the case of Meserve v. Folsom, 62 Vt. 508, the same court said: The evidence that
plaintiff paid no taxes in 1880 and 1881 was properly admitted. The plaintiff complains that
this evidence created a prejudice against him, indicating that he was a tax dodger. But that
prejudice is one that his own conduct inspired, if it was created at all. The evidence drawn out
of plaintiff in cross-examination indicated that he had led a roving life, so far as his domicile
for taxation purposes was concerned. The defendants claimed that the plaintiff resided in
Wheelock in 1883. The plaintiff claimed that he did not. He claimed that he resided either in
Sutton or Lyndon. It was the duty of the plaintiff to have a taxable residence somewhere.
Though it is true that a tax assessment is a proceeding in invitum, and the law which operates
to take from a citizen his property for public purposes is to be strictly construed, nevertheless
the taxpayer is under a duty in view of the protection afforded him by the law, to contribute
his just proportion to support of the government under which he lives, and the question of his
liability to taxation in a given locality is to be tried in the light of this fact.
As evidence that he did not reside in Sutton in 1882 it was proper to show among other
things, that he paid no taxes there in 1882; the payment of taxes being one of the indicia of
residence. * * * Whatever unfavorable inferences these facts gave rise to were the outgrowth
of the plaintiff's neglect of his public duty.
21 Nev. 281, 288 (1892) Bowman v. Boyd
public duty. Residence for purposes of taxation is made up of actual domicile, coupled with a
voluntary and concurring intent. The intent to reside, in many cases, is decisive. It is equally
true that the intent to reside, but in such a manner as to avoid taxation, will not be controlling.
To shed light upon the true nature of this intent in the concrete case, it is competent to show
other domiciles, near the time and having similar features, and disclosing a characterizing
intent. Did the plaintiff have a domicile in fact in Wheelock in 1883, and was it intended by
him to be of a fixed and permanent character for all purpose except taxation. If it be this, the
law will not permit the fact of actual domicile to be controlled by the unlawful intent.
We are of the opinion that for the purposes of taxation the assessment of the persons and
property whose locality can be readily changed must of necessity refer to the situs of the
property at some particular time or day, as, for instance, our statute provides that the lien for
taxes shall attach on all property within the state on the first Monday in March in each year.
From the plaintiff's own testimony he has had no fixed residence or place of business. Since
the year 1867 he has led a roving life. During the years 1888 and 1889 three-fourths of his
time was spent in Washoe county, attending to his business of loaning and collecting his
money. All his securities were there, and in fact from the evidence we should infer that they
were always kept in Washoe county. He owned real estate in Washoe county of the value of
five thousand dollars. Had a room in his own house rented during those two years. The total
value of property assessed to him at Yankee Jim's, Placer county, Cal., was but one hundred
dollars, and consisted of his house and lot. When the assessor of Placer county asked plaintiff
for a statement of his personal property for the year 1889 he gave in this house, and when
asked if he had no other property subject to taxation in California plaintiff answered: No; all
my property is situated in the state of Nevada. He tells the officers of Washoe county,
Nevada, Yes, I have thirty-five thousand eight hundred dollars in collaterals more than I
have given a list of, but you cannot assess them to me, because I reside in California.
Under this state of the case it was proper for the judge to take into consideration the
character of the plaintiff's residence during the assessing period of the year 1SS9, if he had
any; and if he used such claim of residence merely as a pretext to escape the payment of
taxes the inference would be in view of the fact that he owed a public duty to pay taxes
somewhere, and as from his own statements he did not have a fixed permanent residence
or place of business, and as every man is presumed to intend the natural consequences of
his own voluntary acts and declarations, it follows that the plaintiff's claim of residence in
California was to escape taxation in Nevada.
21 Nev. 281, 289 (1892) Bowman v. Boyd
during the assessing period of the year 1889, if he had any; and if he used such claim of
residence merely as a pretext to escape the payment of taxes the inference would be in view
of the fact that he owed a public duty to pay taxes somewhere, and as from his own
statements he did not have a fixed permanent residence or place of business, and as every
man is presumed to intend the natural consequences of his own voluntary acts and
declarations, it follows that the plaintiff's claim of residence in California was to escape
taxation in Nevada. And his statement to the assessor of Placer county, Cal., was true,
because all his securities were in Nevada, but such statement was made to said assessor to
avoid the payment of taxes on his collaterals in the state of California. Therefore his said
claim of residence and his statement to the assessor in Placer county, was claimed and made
to escape taxation in both states, and to avoid the performance of a public duty by
contributing his just proportion to the support of the government. He will not be permitted to
take advantage of his own wrong. The books are full of cases defining residence and
non-residence. But we fail to find any, where the question of taxation has arisen, but what the
courts hold that it must be a fixed and definite one, not roaming from place to place, and the
party must show that he pays his taxes in that place.
The case of Board of Supervisors v. Davenport, 40 Ill. 202, is a case in every way similar
to the one under consideration. There the plaintiff had loaned two hundred and fifty thousand
dollars in the state of Illinois, taking notes and mortgages to secure its payment. He was
assessed upon money at interest secured by mortgages, and brought his action to enjoin the
officers from the collection of the tax on the ground that he was a resident of the state of New
York. The circuit court sustained the plea, holding that the securities could not be assessed in
Illinois so long as the plaintiff claimed to be a resident of the state of New York. On appeal
the supreme court said: He [meaning the plaintiff] now insists, although doing this profitable
and extensive business under the protection of the laws of this state, he is not amenable to the
revenue laws of the state; that he was a mere visitor and temporary sojourner, having his
residence in the state of New York, to whose authority he was liable for these taxes and not to
this state. There is no allegation in the bill of complaint that the taxes have been paid on
those moneys to the state in which he claims to be a resident.
21 Nev. 281, 290 (1892) Bowman v. Boyd
those moneys to the state in which he claims to be a resident. It is not necessary that a person,
to be amenable to the taxing powers of the state, should be a citizen of the state or domiciled
within it. The question is narrowed down to this on the proofs: Did he have a regular and
permanent business here, and did he remain here, and continuously, for a time sufficiently
extended to enable him to transact that business? Where were his business operations
conducted? Had he a fixed and known place of business? The judgment of the circuit court
was reversed, and the bill ordered to be dismissed. From the facts in this case we are
convinced that the plaintiff and his collaterals were amenable to the revenue laws of this state
at the time the assessment was made in March, 1889.
After the taxes became due, but before they became delinquent, the plaintiff appeared at
the treasurer's and ex-officio tax receiver's office, and paid his taxes under written protest,
giving as his reasons for so doing, to prevent the accruing of any penalties for non-payment
thereof, and to prevent any liens attaching on his real estate for the taxes. An answer to this
protest is that if the assessment was illegal, penalties could not be added, and the plaintiff
could by paying or tendering the amount that he admitted to be a legal charge against his
property, prevent any liens from attaching on his real estate. The payment in this case by the
plaintiff with a full knowledge of all the facts, although under protest, was a voluntary
payment, and cannot be recovered back. (Wabaunsee Co. v. Walker, 8 Kan. 433; Lamborn v.
County Com'rs, 97 U.S. 181; Railroad Co. v. Commissioners, 98 U.S. 542; Richardson v.
City of Denver, 30 Pac. Rep. 333.) The judgment of the district court is affirmed.
case below.
____________
21 Nev. 291, 291 (1892) Dazet v. Landry
[No. 1360.]
J. B. DAZET and F. S. LACROUTS, Respondents, v. JAMES LANDRY, NAPOLEON
LANDRY, ANGELLE LANDRY and DENNIS KEHOE, Appellants.
Judicial SaleFailure to Pay Bid.In a suit for partition, the sheriff was ordered to sell property at public
auction for the highest cash price, and as property is sold under execution. At the sale the property was
struck off to defendant J. as the highest bidder, but on his failure to pay the amount of his bid, the sheriff
becoming satisfied that the bid was not made in good faith, re-advertised the property, and it was bid in by
defendant N. who asked for and was granted fifteen minutes in which to pay his bid, and was told at the
time that it was not a sale unless the money was paid down. The sheriff waited thirty minutes, and failing to
receive the money, sold the property to L. Held, that as the property was ordered to be sold for cash, and as
property is sold under execution, the sheriff acted rightly in re-selling on failure of J. and N. to pay the
amounts of their bids in cash, and that the sale to L. should be confirmed.
IdemNext Highest Bidder.If the highest bidder at a sheriff's sale fails to pay the amount of his bid, the next
highest bidder is not bound by his bid.
IdemInadequacy of Price in Absence of Fraud.A sheriff's sale of property will not be set aside for
inadequacy of price, in the absence of fraud.
Appeal from the District Court of the State of Nevada, Lyon county.
Robert M. Clarke, for Appellants.
I. The proceedings of the sheriff were not final until confirmed by the court. (Gen. Stat.
3301, 3302, 3320, 3321, 3341; Freeman on Coten. 545; In re Bost, 3 Jones Eq. 483.)
II. After selling the property to Landry, the sheriff could not re-offer it without giving
notice again. (Gen. Stat. 3311, 3248.)
III. A sale for a grossly inadequate price should be vacated. (Freeman on Coten. 544;
Allen's Estate, 11 Phila. 48.)
W. E. F. Deal, for Respondents.
I. The sheriff had the right to re-sell the property without further notice, on failure of the
bidder to make good his bid.
(Freeman on Executions, Secs. 300, 301; Askew v. Ebberts, 22 Cal. 265; Croacher v.
Oesting, 9 N. E. Rep. 533; People v. Hays, 5 Cal. 66; Maher v. Insurance Co., 19 N. E. Rep.
305.)
II. Even if there had been no proper notice the sale would have been valid after
confirmation by the court (Bank v. Huntoon, 11 Pac. Rep. 375; Smith v. Randall, 6 Cal. 47;
Simson v. Eckstein, 22 Cal. 590; Freeman on Executions, Sec. 339.)
III. It was the duty of the sheriff to re-sell immediately on failure of bidder to pay.
(Camden v. Mayhew, 129 U.S. 84; Freeman on Executions, Sec. 300 and authorities cited in
note 2; Isler v. Colgrove, 75 N. C. 341; Ruckle v. Barbour, 48 Ind. 274; Michel v. Kaiser, 25
La. Ann. 57; Isler v. Andrews, 66 N. C. 552; Jones v. Null, 9 Neb. 254; Humphrey v. McGill,
59 Ga. 649; Rorer on Judicial Sales, Sec. 599; Sedgwick v. Fish, 1 Hopk. Ch. 594; Russell v.
Gibbs, 5 Cow. 396; Swope v. Ardery, 5 Ind. 213; Walworth v. Readsboro, 24 Vt. 252;
Thompson v. McNanama, 2 Disn. 213; Roberts v. Westbrook, 1 Cold. 115; Illingworth v.
Miltenberger, 11 Mo. 80; Williamson v. Berry, 8 How. 544.)
IV. There was no sale to Landry. (Rorer on Judicial Sales, Sec. 91; Veazie v. Williams, 8
How. 153; 2 Kent Com. 12th ed. 138.)
V. All bids at public sale are subject to the right of the bidder to withdraw it at any time
before the property is knocked off to him. (Fisher v. Seltzer, 62 Am. Dec. 335; Blossom v.
Railroad Co., 3 Wall. 206.)
VI. Every bid made by Landry was fraudulent, and no one could be bound by any bid
made over him. (2 Kent Com. 12th ed. 538; Veazie v. Williams, 8 How. 153; Freeman on
Executions, 298 and note 4; Freeman on Coten. 2d ed. Sec. 544.)
VII. Inadequacy of price is not a ground for setting aside a sale. (Railroad Co. v. Creed,
11 Pac. Rep. 772; Bank v. Huntoon, 35 Kan. 577; Studebaker v. Johnson, 21 Pac. Rep. 271;
Weaver v. Lyon, 5 At. Rep. 782 and note on 784.)
VIII. The sheriff acted merely as the organ of the court, and not as a ministerial officer.
(Rorer on Judicial Sales, Sec. 46 et seq.)
IX. The decree of confirmation cured all defects. (Rorer on Judicial Sales, Secs. 53, 122,
126-128; Smith v. Simpson, 60 Pa. St. 169; McBain v. McBain, 15 Oh. St. 337; Thompson v.
Phillips, 1 Bald. 272; Kellam v. Richards, 56 Ala. 240; 12 Am.
& Eng. Ency. of Law 219; Harrison v. Harrison, 1 Md. Ch. 332.)
The respondents and Angelle Landry were the owners of, and tenants in common of a
mining claim, situate in the Devil's Gate & Chinatown mining district, at Silver City, Lyon
county, Nevada. The plaintiffs commenced an action for the dissolution of the mining
copartnership and a sale of the mining property. Defendants James Landry, Napoleon Landry
and Dennis Kehoe were made defendants as having some interest in or claim upon said
property. The defendants answered, and on the 1st day of December, 1890 the parties, with
their attorneys, appeared in court, when it was stipulated and agreed by and between them
that, after certain work should be done in the mine, a decree of sale should be entered by the
court, as prayed for in the complaint. On the 30th day of December, 1890, the parties again
appeared in court, when it was made to appear to the satisfaction of the court, that the work
ordered to be done was completed, whereupon a decree of sale and distribution of the
proceeds were ordered. Said sale was to be made by the sheriff, at public auction, for the
highest cash price, the same as property is sold under execution, after thirty days' notice had
been given by publication in a newspaper and posting of notices.
In compliance with the decree the sheriff, after having advertised said property for sale,
did on the 16th day of February, 1891, offer the said premises for sale at public auction to the
highest and best bidder for cash. James Landry, one of the defendants, bid for said property
the sum of eleven thousand dollars, which was the highest bid offered, and the property was
struck off to him for that sum; but he did not at said sale or at any time since said sale, pay or
offer to pay the amount bid by him, nor any part thereof. Several days after said sale to James
Landry the sheriff becoming satisfied that the bid was not made in good faith, re-advertised
said property, and on the 30th day of March, 1891, exposed the property for sale for cash,
when Napoleon Landry, another of the defendants, bid eight thousand five hundred dollars,
which was the highest bid offered, and the property was struck off to him, whereupon
Napoleon Landry asked the sheriff for fifteen minutes' time to get the money to make his bid
good.
get the money to make his bid good. The sheriff granted his request, and at the same time
notified Landry that it would not be considered a sale without the money was paid down, and
at the same time the sheriff requested the bystanders to remain, as it would not be considered
a sale until the money was paid. The sheriff waited thirty minutes. Landry not returning to
make his bid good, the property was re-sold by the sheriff to F. S. Lacrouts for the sum of six
thousand one hundred dollars, that being the highest sum bid at such sale.
On the 9th day of April, 1891, the time of the hearing for confirmation of said sale, all
parties being present in court, Angelle Landry objected to the confirmation of the sale to
Lacrouts. After hearing all the testimony offered in favor of and against the confirmation of
the sale, the court made an order that Napoleon Landry have ten days thereafter to pay to the
sheriff the sum bid by him, to-wit, eight thousand five hundred dollars, and, upon the
payment of said sum of money to the sheriff, the sale of the property would be confirmed to
him. On the 21st day of April, 1891, the court being in session, and Napoleon Landry not
having paid to the sheriff the sum bid by him for the premises, the court stated to the attorney
for contestant that if he (the attorney) would give the court any assurance that the property
would bring more than six thousand one hundred dollars, the court would set the sale aside
and order the property re-sold. The counsel stated to the court that they would give no such
assurance, whereupon the court made an order confirming the sale to Lacrouts. From this
order the defendant Angelle Landry appeals on the following grounds:
1. That the sheriff should have reported his proceedings of the sale to James Landry to
the court, and James Landry should have been given an opportunity to pay on confirmation of
the sale to him. The answer to this objection is that the order of the court was that the
property should be sold for cash. Section 3311, Gen Stat. Nev., reads: The sale of real
property made by referee under this chapter shall be made by public auction to the highest
bidder, upon notice published in the manner required for the sale of real property on
execution. The notice shall state terms of sale. Section 3312 requires that in the order of sale
the court shall direct the terms of credit which may be allowed for the purchase money.
Section 331S provides that in all cases of sale of property, the terms shall be made known
at the time.
3318 provides that in all cases of sale of property, the terms shall be made known at the time.
Section 3334 provides that, instead of ordering a sale of a mining claim for cash, the court
may direct the referee to divide the claim as provided by statute. The court complied strictly
with the provisions of the statute, and ordered the premises sold for cash, which meant that
the moment that the bid was accepted, the bidder should be prepared then and there to make
his bid good, by depositing the sum bid in the hands of the sheriff.
It would be inconsistent to say that a sale for cash meant a sale on credit for thirty days or
until the confirmation of the sale by the court. If such had been the intention, the court would
have said so in its decree, and provided for the purchaser depositing a certain per cent. of the
purchase money, or the bond that should be given to secure the payment of the money, upon
the confirmation of the sale. A sale for cash is a sale for the money in hand. (Steward v.
Scudder, 24 N. J. Law, 98; Bliss v. Arnold, 8 Vt. 255.) Cash is money at command; ready
money. (Worcester; Whart. Law Dict.) The sheriff was not required, under the order of sale,
to report his proceedings to the court before re-advertising and re-sale. Section 3248, Gen.
Stat., provides that, if a purchaser refuses to pay the amount bid by him for property struck off
to him at a sale under execution, the officer may again sell the property to the highest bidder,
after again giving the notice hereinbefore provided. The order of the court, that the property
be sold in one parcel as real property is sold under execution, makes this section applicable,
and when the sheriff became satisfied that James Landry was not or could not pay the amount
of his bid, it was the duty of the sheriff to re-advertise and re-sell the property.
2. The action of the sheriff, in stating to the proposed bidders the terms of the sale, and
that it was to be a cash sale, and nothing would be received but money, was strictly in
compliance with the order of sale as made by the court, and section 3318 of the act, in
relation to the partition of real property. The highest bidder acquires no title to the thing
purchased but by payment of the purchase money, and if he fails to do this within a
reasonable time, a re-sale may lawfully be made. (Hardesty v. Wilson, 2 Gill. 486.)
3. Appellant contends that at the second sale had on the 30th day of March, 1891,
Napoleon Landry was the highest and best bidder, and when the property was struck off to
him by the sheriff it was an absolute sale."
best bidder, and when the property was struck off to him by the sheriff it was an absolute
sale. At that sale there were several bidders. Landry bid eight thousand five hundred dollars;
Lacrouts, eight thousand four hundred dollars. Landry's bid being the highest, the sheriff
accepted his bid, with the understanding that it was a cash sale, and that it should not be
considered a sale until the money was paid. Landry, understanding the terms of sale, asked for
fifteen minutes' time to get the money. The sheriff granted his request, and at the same time,
and in the presence and hearing of Landry, requested all the bidders and bystanders to remain,
as it would be no sale without Landry should return within the time mentioned with the
money to make his offer good. The people there assembled did remain, and after the sheriff
waited thirty minutes, and Landry not returning, and the officer being informed that Landry
claimed that he had thirty days in which to make his bid good, the sheriff proceeded to re-sell
the property, and did sell it to F. S. Lacrouts for six thousand one hundred dollars, and the
money was paid.
The sheriff as referee is vested with discretionary powers in the sale of property in
partition. If he had reason to believe that Landry was an irresponsible bidder, he could and
should have refused to entertain any offer made by him; but having conditionally accepted the
bid, it was nothing but justice to all parties that Landry be granted the time he asked for to
give him an opportunity to make his bid good; and he not having returned within the thirty
minutes, it was the duty of the sheriff to consider Landry an irresponsible bidder and proceed
as he did and re-sell the premises without unnecessary delay and the additional expense of
re-advertising.
The order of sale emanated from the court. It became the law in this case, to which the
referee had to yield unquestioning obedience. The bid was to be an unconditional cash bid.
Neither the officer nor the bidders could impose or vary the terms of sale. (2 Freem. Judg.
Sec. 300.)
In the case of Wortman v. Conyngham, 1 Pet. C. C. 243, Washington, J., said: When a
purchaser has neglected and refused to comply with the terms of sale, it is the duty of the
marshal to offer the property at sale again, if he had time to do so. (See, also, Illingworth v.
Miltenberger, 11 Mo. 86.) In Thompson v. McManama, 2 Disn. 214, Storer, J., speaking for
the court, said: "The duty of the sheriff, whenever he is required to sell real estate upon
execution, is plain.
the court, said: The duty of the sheriff, whenever he is required to sell real estate upon
execution, is plain. First. He must demand and receive the purchase money from the
purchaser before he makes his return. Second. He must sell to the highest and best bidder.
Third. If the purchaser neglects or refuses to pay the purchase money, or if he is not a real
bidder, and it is evident that he has made his bid to postpone the sale or delay the creditor in
the collection of his debt, it is the duty of the sheriff to disregard his bid and offer the
property again for sale, as if no previous bid had been made. The sheriff did have the right to
re-sell on the same day, without further advertisement, it being within lawful hours of sale.
(Humphrey v. McGill, 59 Ga. 652.)
4. Appellant claims that if the bid of Napoleon Landry for the sum of eight thousand five
hundred dollars was rejected because made in bad faith, or by reason of his not having paid
the purchase money, and the bid of F. S. Lacrouts, for eight thousand four hundred dollars,
was made in good faith, then it was the duty of the sheriff, after the rejection of the Landry
bid, to have accepted the Lacrouts bid of eight thousand four hundred dollars, and the
property should have been struck off to him at that price without a re-sale. An answer to this
complaint is that, at an auction sale of real property, the sale is not complete until the hammer
drops; at any time before the property is struck off, the bidder may recall his bid. After the
property is struck off to a bidder it is a complete contract; and on the party making the bid
failing to comply with his part of the contract, and pay the sum bid, the sheriff is required to
re-sell the property. The party aggrieved may have his action against the bidder for any loss
that he may have sustained by reason of the failure of the bidder to make his bid good.
In this case, when the sheriff called out the bid of Landry, it being greater in amount than
that of Lacrouts, that moment Lacrouts was released from any obligation to make his bid
good, or any part thereof.
In the case of Thompson v. McManama, 3 Disn. 215, the highest bidder made a payment
of twenty-five dollars on his bid of eight hundred and seventy-five dollars, and entered into
an agreement with the sheriff that the balance, to-wit: eight hundred and fifty dollars, should
be paid by a certain day; if not paid at the time, then the sheriff was to return the property
sold to the next highest bidder, whose bid was eight hundred and sixty dollars, and the
twenty-five dollars paid was to be forfeited.
erty sold to the next highest bidder, whose bid was eight hundred and sixty dollars, and the
twenty-five dollars paid was to be forfeited. Upon an application by the sheriff for
confirmation of the sale to the next highest bidder for eight hundred and sixty dollars, and to
determine what disposition should be made of the twenty-five dollars, the court refused to
confirm the sale and ordered the property re-sold. (Swortzell v. Martin, 16 Iowa, 522; U.S. v.
Vestal, 4 Hughes, 467; Hil. Sales, p. 250, Sec. 4.)
5. Appellant contends that the sale ought not to be confirmed, because and for the reason
that the property sold for a grossly inadequate price. True it is that the sum of eleven
thousand dollars was bid for the property at the first sale and eight thousand five hundred
dollars at the second sale; but subsequent events go to prove that they were irresponsible
bidders; that neither of the parties had any means of their own, but expected to receive aid
from other parties that did not come to their relief. It is also true that the sum of ten thousand
nine hundred dollars and eight thousand four hundred dollars were the next highest bids at
each of said sales, and that the parties making such bids were responsible bidders, but their
bids were not accepted, and they were released from their offer to purchase. If the bids of the
Landreys [Landrys] were made in good faith, they were given ample opportunity to make
them good; they being sons of appellant, it is fair to presume that the bids were made to delay
the sale merely. On the second hearing for confirmation, J. E. Gignoux testified that six
thousand one hundred dollars was all that he would give for the property. After this evidence
was admitted, the court offered to set the sale aside if the appellant would asure [assure] it
that a greater sum than six thousand one hundred dollars could be realized from another sale,
but such assurance was not given. As a rule, something more than mere inadequacy of price
must appear before a sale will be set aside, unless the inadequacy be so great as to shock the
conscience.
In the cases of Mining Co. v. Mason and Marcus v. Same, 12 Sup. Ct. Rep. 887, under an
order of sale, the master in chancery received a telegram asking to have the sale postponed
for a few days, Marcus offering to pay all expenses of postponement. The master refused to
comply with the request, and sold the property for seven hundred and ten thousand dollars.
The day after the sale Marcus telegraphed that he would give seven hundred and twenty
thousand dollars.
day after the sale Marcus telegraphed that he would give seven hundred and twenty thousand
dollars. The sale was confirmed to the parties giving seven hundred and ten thousand dollars
on the day after the confirmation of the sale Marcus filed his petition setting up all these facts,
and asking to have the sale set aside, offering to pay all expenses of another sale and gave a
bond to the effect that he would pay nine hundred thousand dollars for the property. Upon the
hearing it was held that the master in chancery properly ignored the telegrams; that it was
Marcus' duty to intervene before confirmation, and as the selling price was not grossly
inadequate, the sale should not be set aside. The fact that land was sold under a decree for an
inadequate price is not ground for a re-sale in the absence of fraud. (Nix v. Draughan, 19 S.
W. Rep. 669.)
Sales made by order of the court in partition are judicial sales, and when so ordered they
are made in the same manner as property is sold under execution, at public auction, for
money in hand, to the highest unconditional bidder. The referee is the ministerial officer of
the law. He acts independently of the parties. They have no control over him, and so long as
he confines his acts within the scope of his authority, doing as he is required to do by the
mandate of the decree under which he acts, his acts will be upheld. We do not deem it
necessary to review all the authorities which bear more or less upon each and every point
involved in this appeal.
The principal cases are cited in the briefs of counsel. It is sufficient to say that we have not
met with a case which, in our judgment, sustains the position of appellant. Nor have the very
learned and industrious counsel who so ably represents the appellant, referred us to a case
which sustains the views expressed by him in his argument. It is clear that if a party bids at an
auction sale, knowing that he is not in a position to comply with the terms of sale, the sale is
absolutely void and no title passes, and the bidder is not in a position to claim any rights
under his bid. Neither is the appellant in a position to claim that the sheriff exceeded his
instructions, by refusing to make returns of the sales to James and Napoleon Landry, and not
tendering a deed to James Landry. If the sheriff was required to make returns of such bids and
tender deeds, it is not easy to see how often such returns would have to be made, or the
intervention of such bidders might delay the sale, if a bid unaccompanied with the money
could not be rejected.
bid unaccompanied with the money could not be rejected.
The court having gone fully into the merits of the sale, and the proceedings had
thereunder, upon the hearing for confirmation, and giving the Landrys every opportunity to
make their bids good, and offering to set the sale aside provided the appellants would give
assurance that a sum greater than six thousand one hundred dollars could be obtained upon a
re-sale of the property, and such assurance was not given, and no fraud or collusion being
shown to exist between the officer and bidders, the judgment of the court confirming the sale
to Lacrouts is affirmed, and it is so ordered.
____________
21 Nev. 300, 300 (1892) State v. Horton
[No. 1359.]
THE STATE OF NEVADA ex rel. J. A. BLOSSOM, Relator,
v. R. L. HORTON, STATE CONTROLLER, Respondent.
Artesian WellsBountyAmendment of Statute.The act of March 5, 1887, Sec. 1, provided for the payment
of bounties by the state for the sinking of artesian wells of a given capacity. The act of March 7, 1889,
amended the former act by fixing different bounties to be graduated according to the depths of wells, and
providing that no two wells shall receive a bounty if located in the same county, and further providing
that where two or more wells within the prescribed limit apply for a bounty, the well which first furnished
the amount of water required by this act shall be entitled to the bounty. The amendment was made by
enacting that the former act is hereby amended so as to read as follows, setting forth section 1 of the act
of 1887, as amended, without any words or repeal. Held, that the effect of re-enacting the section of the
former act with amendments incorporated therein was not to repeal and re-enact it, but that it continued
uninterruptedly in force, and that the amendatory act was to be construed in connection with it, so that
where a well was sunk and a bounty granted for it under the original act, another bounty would not be
granted under the amendatory act for a well sunk within the prescribed limit.
IdemIntention of the Legislature.The purpose of the legislature in providing for the payment of bounties by
the state for sinking artesian wells was to encourage experiments in places where it was uncertain whether
water could be obtained, and it did not contemplate the payment of bounties for wells sunk in places where
it had been practically demonstrated by bounties paid by the state that artesian water could be obtained.
(Concurring opinion of Bigelow, J.)
Original application for a writ mandate.
Sardis Summerfield, for Relator.
I. The amendatory act of March 7, 1889, by implication repeals sections one and six of the
original act. (Ely v. Holton, 15 N. Y. 595; C. P. R. R. Co. v. Shackelford, 63 Cal. 261.)
II. The amendatory act contemplates the payment of bounties for an entirely different class
of wells from those provided for in the original act. Neither the purpose for which they were
sunk nor the depth of wells was material under the original act, but bounty wells under the
amendatory act must be sunk for stock or agricultural purposes, and must be at least two
hundred feet deep.
III. The appropriation has not lapsed. An appropriation by the legislature is the dedication
of a specific portion of the state funds for a specific purpose. There is no suggestion in the
amendatory act of March 7, 1889, that the legislature intended to limit the appropriation to
any particular time, and unless such intention is apparent in the act it should be held to be a
continuous appropriation. The intention of the legislature controls. (State ex rel. Wilkins v.
Hallock, 20 Nev. 73.)
J. D. Torreyson, Attorney General, for Respondent.
I. The appropriation for the years 1889-90 has lapsed. The intention of the legislature was
that it should only be an appropriation for the fiscal years. This is shown by the re-enactment
of section six. Had the legislature intended the appropriation of 1887 to be a permanent
appropriation it would never have re-enacted section six, as there would have been no
necessity for so doing. (State ex rel. Wilkins v. Hallock, 20 Nev. 73; 20 Ind. 328.)
II. Relator could not get a bounty under the act of 1887 because the two wells are within
ten miles of each other. Relator knew of the existence of the Dusang well, and knew that
artesian water could be obtained upon this quarter section of land, and with this knowledge
sinks his well and claims bounty. The Dusang well having received bounty, relator is not
entitled to bounty under the amendatory act of 1889, because his well is situated in the same
county as the Dusang well, which had already received bounty.
An act of the legislature was approved March 5, 1887 (Stat.
1887, p. 119), entitled An act to encourage the sinking of artesian wells. The first section
reads as follows: Every person, firm, company, corporation or association that shall, after the
passage of this act, commence the sinking of artesian wells, shall be entitled for sinking such
artesian well, where flowing water is obtained, the sum of one dollar and twenty-five cents
per foot, to be paid in the manner provided for in section 4 of this act; provided, that no
bounty shall be paid on any well which does not furnish seven thousand gallons of water each
twenty-four hours, flowing continuously for thirty days; and provided, further, that bounties
shall not be paid in more than three wells in each county within this state; and provided,
further, that no two wells shall receive a bounty if located within ten miles of each other.
Sections 2, 3, 4 and 5 relate to the manner of proceeding and drawing the money from the
treasury after the flow of water is obtained. Section 6 appropriates ten thousand dollars from
the general fund to pay bounties.
On the 7th day of March, 1889, the legislature amended section 1 of the act of 1887 (Stats.
1889, p. 84): Section 1. Every person, firm, company, corporation or association that shall,
after the passage of this act, commence the sinking of artesian wells, for stock or agricultural
purposes, shall be entitled for sinking such artesian well, where flowing water is obtained, the
following specified sums: For the first two hundred feet, one dollar and twenty-five cents per
foot; for the third one hundred feet, one dollar and fifty cents per foot; for the fourth one
hundred feet, two dollars per foot; for the fifth one hundred feet, two dollars and twenty-five
cents per foot; for the sixth one hundred feet, two dollars and fifty cents per foot; for the
seventh one hundred feet, three dollars per foot; for the eighth one hundred feet, three dollars
and fifty cents per foot; for the ninth one hundred feet, four dollars per foot; for the tenth one
hundred feet, four dollars and fifty cents per foot; for all depths exceeding one thousand feet,
five dollars per foot for each and every foot below the said one thousand feet, and an
additional bounty of one thousand dollars for every well sunk to the depth of one thousand
feet or more; provided, that such well shall furnish twenty thousand gallons of water each
twenty-four hours, flowing continuously for thirty days; said sums to be paid in the manner
provided for in sections four and five of this act; provided, that no bounty shall be paid on
any well which does not furnish seven thousand gallons of water in each twenty-four
hours, flowing continuously for thirty days; and provided, further, that no two wells shall
receive a bounty if located within the same county.
paid on any well which does not furnish seven thousand gallons of water in each twenty-four
hours, flowing continuously for thirty days; and provided, further, that no two wells shall
receive a bounty if located within the same county. Where two or more wells within the
prescribed limits apply for a bounty, the well which first furnished the amount of water
required by this act shall be entitled to the bounty allowed by this act. Section 6
re-appropriates the sum of ten thousand dollars from the general fund to pay bounties.
Sections 2, 3, 4 and five of the act of 1887 are not copied into the statute of 1889, but are
merely referred to by the sections, nor is there any repealing clause in the act of 1889.
The admitted facts are, that on or about the 24th day of May, 1890, the relator and one S.
L. Cahoon made and subscribed to the affidavit, as required by section 2 of the act of 1887,
and proceeded to sink a well; that said well was sunk to a depth of eight hundred and ten feet,
was five inches in diameter and flowed one hundred thousand gallons of water in each
twenty-four hours for thirty days continuously; that relator made his report to the board of
county commissioners of Lander county, as required by section 3, and received a certificate
from said board, as provided for in section 4 of the act of 1887; that a claim for one thousand
seven hundred and sixty-five dollars, as bounty, was presented to the state board of
examiners, and was on the 9th day of July, 1891, approved and allowed by said board. On the
10th day of July, 1891, said claim, with the indorsements thereon, was presented to the state
controller with the request that he should draw his warrant on the treasurer for the amount
therein specified, but to draw the said warrant the controller refused and still refuses to do so,
giving as his reasons for such refusal that the appropriation had lapsed, and that there was
another well sunk on the same quarter section of land, for which a bounty had been paid prior
to the sinking of the well by the relator. Whereupon the relator sued out the alternative writ of
mandamus herein.
The attorney for relator argues that the amendatory act of 1889 repealed section one of the
act of 1887, and that when the relator commenced sinking his well in 1890, the law under
which he proceeded should be read and construed as if no law on the subject had existed prior
to the 7th day of March, 1889; and the fact that a well had been sunk on the same quarter
section of land, and a bounty paid thereon, could not and did not operate to defeat the
right of the relator to collect the bounty for the sinking of his well.
section of land, and a bounty paid thereon, could not and did not operate to defeat the right of
the relator to collect the bounty for the sinking of his well.
We cannot agree with him in any such conclusion. The act of 1887 was passed to
encourage and aid if possible in developing the resources of the state, and to encourage the
expenditure of labor and money in seeking to discover water for domestic, agricultural, and
grazing purposes; and as an incentive for such expenditures, the state agreed by said act to aid
in such developments by the payment of bounties. In 1889 the legislature must have become
satisfied that the act of 1887 was too liberal in its provisions and not sufficiently restrictive.
They therefore amended section one, and the said amendment is, in its terms, more guarded,
definite and restrictive. But the provisions of the act of 1887 are not repealed. The effect of an
amendment of a statute made by enacting that the act is hereby amended so as to read as
follows, and then incorporating the changes or additions with that portion of the former act
that is retained, is not that the portions of the amended act which are merely copied from the
original act are to be considered as having been repealed and again re-enacted. The part which
remains unchanged is to be considered as having continued to be the law from the time of its
first enactment. (Holbrook v. Nichol, 36 Ill. 167; Kamerick v. Castleman, 21 Mo. App. 590;
Parsons v. Circuit Judge, 37 Mich. 290; Walker v. State, 7 Tex. App. 256; Suth. St. Const.
Sec. 134.)
It is a fundamental rule that repeals of statutes by implication are not favored in law. To
constitute the repeal of an act of the legislature by implication, the new statute must cover the
whole subject matter of the old one. There must be an irreconcilable repugnancy between the
two acts, and the repugnancy must be plain and unavoidable. Under the act of 1887, where a
well was sunk from which was obtained a flow equaling seven thousand gallons of water in
each twenty-four hours for thirty days continuously, the party sinking such a well was entitled
to receive, as bounty, one dollar and twenty-five cents per foot, regardless as to the depth of
such well. The provision was enacted in this manner to induce, if possible, parties to sink
wells, and to demonstrate the fact that there was water flowing beneath the surface of the soil
that could be brought to the surface by the boring of artesian wells. That fact having been
established, the legislature of 1SS9, wishing to encourage the sinking of deep wells, fixed
the bounty, "for the first two hundred feet, one dollar and twenty-five cents per foot," and
increased the bounty for each and every hundred feet thereafter sunk, until the well
reached the depth of one thousand feet; and in case the well was sunk below one
thousand feet, and flow of water to exceed twenty thousand gallons in each twenty-four
hours was obtained, the person sinking such well was entitled to receive an additional
bounty of one thousand dollars.
been established, the legislature of 1889, wishing to encourage the sinking of deep wells,
fixed the bounty, for the first two hundred feet, one dollar and twenty-five cents per foot,
and increased the bounty for each and every hundred feet thereafter sunk, until the well
reached the depth of one thousand feet; and in case the well was sunk below one thousand
feet, and flow of water to exceed twenty thousand gallons in each twenty-four hours was
obtained, the person sinking such well was entitled to receive an additional bounty of one
thousand dollars.
Under the act of 1887, bounties could be obtained on three wells in one county, provided
their locations were more than ten miles apart. Under the act of 1889, but one well in each
county could receive a bounty. We are satisfied that, where a party had sunk a well and
obtained a bounty under and by virtue of the act of 1887, that it was not the understanding nor
intention of the legislature that another person could have entered upon the same quarter
section of land, sink a well and obtain the bounty under the provisions of the act of 1889. We
are supported in this conclusion from the reading of the closing paragraph of section one of
the act of 1889, which reads: Where two or more wells within the prescribed limit apply for
a bounty, the well which first furnished the amount of water required by this act shall be
entitled to the bounty allowed by this act. The prescribed limits, under the act of 1887; ten
miles; under the act of 1889, one in each county; amount of water, seven thousand gallons.
The relator having sunk his well on a quarter section of land where one had been sunk by
other parties, and the bounty as provided for under the act of 1887 paid, he cannot recover a
bounty for sinking his well. From the view we have taken of this case, it is unnecessary to
pass upon the question raised as to whether the appropriation of ten thousand dollars reverted
to the general fund on the 31st day of December, 1890, or not. Mandamus denied.
Bigelow, J., concurring:
By the amendatory act of 1889, amending section one of the act of 1887, it is directed that
every person * * * that shall after the passage of this act, sink an artesian well under certain
circumstances, shall be entitled to the bounty therein provided for. Counsel contends that as
the relator's well was the first one sunk in the county after the passage of the amendatory
act, he is by its express language entitled to the bounty, notwithstanding the admitted
fact that there had previously been another well sunk upon the same quarter section of
land, for which a bounty has been claimed and paid under the law as it stood previous to
the amendment.
the first one sunk in the county after the passage of the amendatory act, he is by its express
language entitled to the bounty, notwithstanding the admitted fact that there had previously
been another well sunk upon the same quarter section of land, for which a bounty has been
claimed and paid under the law as it stood previous to the amendment.
All laws are to be so construed as to arrive, if possible, at the intention of the legislature;
and the question here is whether that body intended by the amendatory act to wipe out all that
had been done under the original actto begin anew as it wereand pay a bounty upon the
first well that might be sunk in each county after its passage.
1. As to the time when the well was to be sunk, the amendment merely repeats the
language of the original act. Under our constitution, where a section of an act is amended the
section must be re-enacted and published at length. The effect of this is that all in the original
section which is not repeated in the amendment is repealed; the new provisions in the
amendment take effect from the time of its passage and approval, and the provisions which
are repeated stand the same as though there had been no amendment or change. (Railroad Co.
v. Shackelford, 63 Cal. 261; Ely v. Holton, 15 N. Y. 598.)
This being the rule of statutory construction, it would seem clear that the words, after the
passage of this act, being so repeated, must be held to refer to the original act, and any well
sunk after the date of that actMarch 5, 1887, upon which a bounty had been paid, must be
counted as being within the law, and to that extent excluding the payment of bounty on any
other. As, under the amendatory act, bounty can only be paid on one well in each county, the
previous payment excludes the claim made for the relator's well.
2. As is well known, the sinking of an artesian well, where no other has been sunk, is
always in the nature of an experiment. They are expensive, and private parties hesitate about
sinking them until some one has demonstrated that water can be obtained. It is clear that the
purpose of the legislature in offering the bounty was to encourage the making of these
experiments in places where it was uncertain whether water could be obtained. The wells
upon which bounty was to be paid were for the purpose of prospecting the country and
finding, if possible, a belt of artesian water. If such a belt was found, others would then sink
wells, and thereby extensive tracts of land might be reclaimed and rendered fertile.
others would then sink wells, and thereby extensive tracts of land might be reclaimed and
rendered fertile.
That this was the purpose of the legislature is evident from the manner in which the act is
guarded. If it was once determined that artesian water could be obtained in a section of
country, the purpose of the legislature was secured, and there was no occasion to pay for
sinking another well. Consequently, we see under the original act, that the wells must be at
least ten miles apart, and under the amendment that bounty can be paid upon but one well in a
county. In this case it appears that it had already been practically determined by an
experiment, for which the state had paid, that artesian water could be obtained upon the same
quarter section of land in which the relator's well was sunk. Sinking another well there does
not come within either the letter or the spirit of either act. It would be strange indeed, if
bounty could be drawn which is not payable under the terms of either the original or the
amended act.
3. There is nothing in the suggestion that the first well should be excluded from
consideration because the purpose of the law was changed by the amendment. It is true that
under the amendments wells must be sunk for stock or agricultural purposes, while the
original act did not limit the purpose, but the limitation does not exclude the counting of the
first well.
Nor is it true that, under the amendment, bounty could not have been drawn upon the first
well, because it was only one hundred and fifty-three feet in depth. It is not necessary under
the latter act that the well should be sunk at least two hundred feet before bounty can be
obtained upon it. I concur in the judgment denying the mandamus.
____________
21 Nev. 307, 307 (1892) Kreig v. Fellows
[No. 1361.]
GEORGE KREIG, Appellant, v. F. M. FELLOWS, Respondent.
ExemptionsStallions and Work HorsesStatutory Construction.A stallion kept for breeding purposes, and
not used as a work horse, is not exempt from execution under the third paragraph of Sec. 3243, Gen. Stat.
of Nevada. The legislature intended by that paragraph to exempt to the debtor such animals as would be
useful in assisting him to gain a livelihood by farming, etc., as ordinarily conducted.
Appeal from the District Court of the State of Nevada, Humboldt county
Robert M. Clarke, for Appellant.
I. The statute exempts two horses, not two work horses, or plow horses, as is contended
for by respondent. Not two horses of any particular gender, or age, or size, or value, but two
horses without qualification. It is not the kind of horses but the calling of the person
claiming the exemption, and the use to which the horses are put or can be put, that must
determine the contention.
II. Manifestly only persons engaged in the business of husbandry are entitled to the
exemption. Appellant is a husbandman. Husbandry comprehends agriculture, raising,
managing and fattening of cattle and other domestic animals. (Simmons v. Lovell, 7 Heiskell,
515-16.)
III. Exemption laws are not in derogation of the common law and should be liberally and
beneficially construed. (Thompson on Home. and Ex., Secs. 4, 7, 731; Elder v. Williams, 16
Nev. 416.) Appellant being engaged in the business of husbandry, and the two horses being
used and being necessary in appellant's said business, they are exempt from execution.
M. S. Bonnifield, for Respondent.
I. Appellant is not a farmer, and the horses in question were not used in husbandry within
the sense of the statute. The provisions of the statute relate exclusively to exemptions in favor
of farmers. (Brusie v. Griffith, 34 Cal. 302.) The statute is intended to apply only to domestic
animals suitable and intended for ordinary work on a farm. (Robert v. Adams, 38 Cal. 383; In
re Baldwin, 12 Pac. Rep. 44.)
The question involved in this action is whether two stallions are exempt from execution.
The plaintiff claims that they are, under the third paragraph of section 3243, Gen. Stat., upon
the ground that he is engaged in the business of husbandry, and uses them in that
business.
the ground that he is engaged in the business of husbandry, and uses them in that business.
The facts as found by the court are as follows: The court finds from the testimony that
plaintiff, George Kreig, was on the 1st day of November, 1891, and since the year 1889 had
been, the owner in possession of a large ranch on the Humboldt river, near Winnemucca, in
said county, and during said time has been engaged in raising live stock, horses and cattle
thereon; that no grain or vegetables are grown or cultivated upon said ranch, and no hay or
grass, except natural hay and grasses, is grown or cut thereon; that the said two stallions were
kept and used for breeding purposes solely for stock raised on said ranch, and owned by
plaintiff, but were not kept nor used for working upon or about said ranch, or in connection
therewith, otherwise than for breeding purposes, although one of said stallions was, on two or
three occasions, driven in a cart from said ranch to said town of Winnemucca by members of
plaintiff's family. * * *
While not entirely clear, it seems to be admitted that this language amounts to a finding
that the horses were not at all used as work animals, either on the ranch or otherwise, but
were kept for breeding purposes alone. The case has been argued upon that assumption, and
we shall consider it to be the fact. As we are of the opinion that they do not come within the
class of animals exempted by the statute, it is unnecessary to consider any other question in
the case.
The subdivision of section 3243, under which this exemption is claimed, is neither happily
drawn nor clearly expressed, and requires considerable piecing out by judicial construction to
make it fit in harmoniously with the rest of the section, and to carry out the real purpose of
the legislature in its adoption; but notwithstanding, we do not think there is much difficulty in
determining what the purpose was.
The general policy of all exemption laws is that the unfortunate debtor shall not be left
without the means of supporting himself and his family in the vocation usually pursued by
him. To that end the tools of a mechanic or artisan, necessary to carry on his trade; the
instruments of a surgeon, physician, surveyor, and dentist, necessary to the exercise of their
professions, with their scientific and professional libraries; the law library of a lawyer; the
libraries of ministers; the tools, implement and appliances of a miner; the horses of a
teamster, by the use of which he earns his living, and so on, are exempted from execution.
the use of which he earns his living, and so on, are exempted from execution. These all
illustrate the intention of the legislative body in enacting the law, and show that it was
adopted to secure to the debtor the necessary means of gaining livelihood, while doing as
little injury as possible to the creditor. In no part of the statute are farmers, gardeners, stock
raisers, and people engaged in similar occupations, specially mentioned, but there seems no
doubt that this third subdivision was intended to apply to them alone, and to exempt to them
and their families, as had been done to others, the means necessary to enable them to earn a
living in their chosen vocation. For this purpose, two oxen or two horses or two mules, and
their harness, two cows, and one cart or wagon, with food for one month, are included
among the exempt articles. The kind of oxen, horses, or mules is not mentioned, but looking
at the whole scope and purpose of the statute, as illustrated in its various provisions, it does
not seem doubtful that the intention was that they should be work animalsthe kind that
would best assist the debtor to obtain a living at farming, as that business is ordinarily
conducted, while not generally enabling him to cover and hold from his creditors a large
amount of valuable property. Wherever horses are mentioned elsewhere throughout the
section, some language is used showing that what is intended to be exempted is the animals
used in the debtor's business, and the fact that it was not so expressed in this paragraph, where
certainly the same reasons apply, must be considered simply an oversight, and the omission
can and must be supplied by the courts, in order that the evident intention of the law-makers
shall not be defeated. Work horses would enable the debtor to carry on his business, and
however valuable could not generally be worth more than a few hundred dollars; but if the
exemption is not confined to that class, then there is no limitation, and animals worth many
thousands of dollars may be beyond the reach of an execution.
We are supported in this view of the statute by the case of Robert v. Adams, 38 Cal. 383,
where the supreme court of that state, in a well-considered opinion, came to the same
conclusion that we have expressed. Probably, no matter how valuable a horse may be, he
would, if a work horse, be exempt from execution, and the fact that he is also a stallion, and
used for breeding purposes, would make no difference. This was so held in McCue v.
Tunstead,
held in McCue v. Tunstead, 65 Cal. 506. But where the horse is not a work horse, nor
intended to be such, and is used solely for breeding purposes, we feel confident that he does
not come within the class that the legislature intended to exempt from execution, and as that
is the case here, it follows that the judgment must be affirmed, and it is so ordered.
____________
21 Nev. 312, 312 (1892)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
OCTOBER TERM, 1892.
____________
Volume 21
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21 Nev. 312, 312 (1892) Lonkey v. Keyes S. M. Co.
[No. 1364.]
OLIVER LONKEY et als, Respondents, v. KEYES SILVER
MINING COMPANY, A CORPORATION, Appellant.
Service of SummonsConstructive Service, when Insufficient.The act of February 25, 1889, provides that
foreign corporations owning property or doing business in this state shall appoint a resident agent, on
whom service of process can be made within this state, and that on failure to make such appointment,
service may be made by delivering a copy to the secretary of state. Held, that service on the deputy
secretary of state was not a compliance with the law and that the court acquired no jurisdiction by such
attempted service.
IdemSupplemental Service by Mail.Section 3051 Gen. Stat. of Nevada provides that in a suit against a
corporation organized under the laws of California, a copy of the summons and complaint shall be mailed
to the president and trustees of such corporation at their place of business in California, in addition to the
personal service required by the same section. Held, that in the absence of the personal service required by
the law, the mailing of a copy of the summons and complaint to the president and trustees added no force to
the officer's return on the summons.
IdemEffect of Officer's Return.After defective service of summons, the court gave judgment against
appellant by default, reciting in the judgment that summons was issued and served as by law
provided, and that all parties were properly before the court. Held, on appeal from the judgment, that such
recital in the judgment was not conclusive where the record before the appellate court contained all of the
evidence on which the lower court assumed to acquire jurisdiction.
Liens on Mining ClaimsNon-effect of Notice.Section 3822, Gen. Stat. of Nevada, relating to the
enforcement of liens against mining claims for material and labor, provides that at the time of filing
complaint and issuing the summons the plaintiff shall publish notice for three successive weeks in a
newspaper, notifying all persons claiming liens to appear on a day specified therein, and during a regular
term of court, and to exhibit then and there the proof of said liens. Held, in an action to foreclose a number
of liens against a mining claim of a non-resident corporation, that the statutory notice, as published to
lienholders, was no notice to defendant of the pendency of the action.
Appeal from the District Court of the State of Nevada, Storey county.
The fact sufficiently appear in the opinion.
A. C. Ellis, for Appellant.
I. Proceedings to impose and enforce mechanic's and labor's liens have no foundation in
the common law, but rest and must find support entirely upon statutes authorizing them.
(Benton v. Wickwire, 54 N. Y. 226; Grant v. Vandercook, 57 Barb. 165; Huxford v.
Bogardus, 40 How. Pr. N. Y. 94; 8 Abb. Pr. N. S. 455; Skyrme v. Occidental Co., 8 Nev.
228.)
II. There was no service of the summons in this action, either personally upon any officer
of the corporation defendant or by publication of the summons. The return of service by the
officer shows upon its face that there was no service at all.
III. There is no such officer as deputy secretary of state and even if there was, service
upon him is not service upon the secretary of state, which the act of 1889 requires in certain
contingencies.
IV. Constructive service of summons being purely the creation of statute the law must be
strictly and fully complied with in every requirement. Jurisdiction in cases of such service of
summons, both as to the subject matter of the judgment, and as to the persons to be affected
by it, must appear by the record, and everything will be presumed to be without the
jurisdiction, which does not distinctly appear" to be within it.
which does not distinctly appear to be within it. (Morse v. Presby, 5 Foster, 302; Galpin v.
Page, 18 Wall. 370-71.)
F. M. Huffaker, for Respondents.
I. This appeal is from the judgment and the judgment roll only is before the court. In such
cases all presumptions are in favor of the regularity of the proceedings in the court below.
(Champion v. Sessions, 2 Nev. 271; Nosler v. Haynes, 2 Nev. 52; Lady Bryan G. & S. Mining
Co. v. Lady Bryan Mining Co., 4 Nev. 414; Nesbit v. Chisholm, 16 Nev. 39.)
II. The judgment having been rendered on default of appellant the presumption is that all
things necessary to be proved, to support the findings and the judgment, were proved. (Kelly
v. Kelly, 18 Nev. 49.)
III. The court below finds that the summons was issued and served as by law provided;
that all parties were properly before the court, and the court further adjudged that appellant
was duly served. This is conclusive of any objection to the service of the summons. (Blasdel
v. Kean, 8 Nev. 308, and authorities cited.)
IV. The act of 1889 was complied with as the court below found and decreed. The
legislature can provide any mode of serving a non-resident, when the suit is in the nature of a
proceeding in rem and the defendant is a non-resident corporation. A non-resident having
property in this state is bound to take notice of all our laws affecting such property. (Phillips
on Mechanics' Liens, 2d. Ed. Sec. 321; Pennoyer v. Neff, 95 U.S. 719.)
This was an action to foreclose a number of liens against a mining claim and its
appurtenances for material furnished and labor performed in and upon said mining claim, the
property of the Keyes Silver Mining Company. Oliver Lonkey filed his complaint, and had
summons issued thereon, and a notice to lien holders and claimants published, as required by
the provisions of section 3822, Gen. Stat. Nev. On the day appointed for the hearing, James
Cook, Daniel Reidy, Maurice Sheehan and John Kelly, having filed their notices of lien,
intervened. The default of the defendant, the Keyes Silver Mining Company, was ordered to
be entered by the court. After the hearing of the testimony, the court entered its decree and
judgment in favor of plaintiff and interveners for the several amounts claimed to be due,
and ordered the property sold to satisfy said demands.
ing of the testimony, the court entered its decree and judgment in favor of plaintiff and
interveners for the several amounts claimed to be due, and ordered the property sold to satisfy
said demands. The defendant appeals from the judgment, and asks for a reversal of the same,
on the ground that no service of summons had been made on the defendant, either personally
or constructively. Prior to the 25th day of February, 1889, service of process on foreign
corporations doing business within this state was made by personal service upon an agent,
cashier, secretary, president, or other head thereof, or by publication of summons as
provided by section 3052 Gen. Stat.
On the last-mentioned date the governor approved an act of the legislature requiring
foreign corporations doing business in this state to appoint and keep in this state an agent,
upon whom all legal process may be served for such corporation. Such corporation shall file a
certificate, properly authenticated by the proper officers of such company, with the secretary
of state, specifying the full name and residence of such agent, which certificate shall be
renewed by such company as often as a change may be made in such appointment, or vacancy
shall occur in such agency. Any and all legal process may be served upon such company by
delivering to such agent personally a copy of such process, which shall be legal and valid. If
any such company shall fail to appoint such agent, then it shall be lawful to serve such
company with any and all legal process by delivering a copy to the secretary of state, and such
service shall be valid to all intents and purposes. This act was intended as an additional mode
and manner of serving process.
Upon the issuance of the summons in the case at bar it was placed in the hands of the
sheriff of Ormsby county, who made the following return thereon: I hereby certify that I
received the within summons on the 13th day of August, A. D. 1891, at 9:15 o'clock a. m.,
and duly served the same on the defendant named therein, by personally delivering a true
copy thereof, attached to a certified copy of the complaint, to deputy secretary of state A.
Helm (the secretary being out of the state), in Ormsby county, on the 13th day of August,
1891, and that I served personally the within summons upon A. Helm, deputy secretary of
state (but find upon examination of record that no such corporation existed or ever did exist),
defendant in the above entitled case, by delivering to A. Helm, etc., in the county of Ormsby,
state of Nevada, on the 13th day of August, A. D. 1S91, a true copy thereof, and by
showing him this original."
county of Ormsby, state of Nevada, on the 13th day of August, A. D. 1891, a true copy
thereof, and by showing him this original.
The attorney for the appellant contends that the service of process upon the deputy
secretary of state was not a service upon the secretary, and was not a compliance with the
statute under consideration. The law in relation to the service of process on foreign
corporations must receive a strict construction, and the service must be made upon the officer
or person mentioned in the act of the legislature. The cases are numerous which hold that,
where a particular method of serving process is pointed out by the statute, that method must
be followed, and the rule is especially exacting in reference to corporations. Was the service
upon A. Helm, deputy secretary of state (the secretary being absent from the state), a
compliance with the act of 1889?
The service upon the deputy was certainly not sufficient, unless we can disregard the plain
reading of the statute, which says: If any such company shall fail to appoint such * * * agent,
then it shall be lawful to serve such company with any and all legal process by delivering a
copy to the secretary of state. The statute does not require the copies to be filed, nor does it
make them a part of the records of the secretary's office, nor require of that officer the
performance of any duty in connection therewith whatever. It merely, for the time being,
makes that particular individual occupying the office of secretary of state the agent of the
corporation for the particular purpose of receiving service of all processes issued against a
foreign corporation, where it has failed to appoint an agent as required by the act. Section
1799, Gen. Stat. Nev., defines the duties of the deputy secretary of state during the absence of
the secretary of state to be of a ministerial nature, belonging to the office. In the case of
City of Watertown v. Robinson, 69 Wis. 233, the supreme court of that state said: When the
statute prescribes a particular mode of service, that mode must be followed. Ita lex scripta
est. There is no chance to speculate whether some other mode will not answer as well. This
has been too often held by courts to require further citations.
When the statute designates a particular officer to whom the process may be delivered, and
with whom it may be left, as service upon the corporation, no other officer or person can be
substituted in his place.
substituted in his place. The designation of one particular officer upon whom service may be
made excludes all others. This language was afterwards approved and adopted by the
supreme court of the United States in the case of Amy v. Watertown, 130 U. S. 317. (2 Beach
Corp. Sec. 859; Tallman v. Railroad Co., 45 Fed Rep. 156.) In Chambers v. Manufactory, 16
Kan. 276, the court said: But service of summons on a corporation cannot be made on every
person who may, in some remote sense, be styled a clerk of the corporation. It could not be
made on a deputy or under clerk. It must be made on the clerkthe principal clerkof the
corporation, if made on a clerk at all. It must be made on a person who holds the office of
clerk or secretary, although such person might not in fact perform any of the clerical duties
for the corporation.
In Winslow v. Railroad Co., 2 N. Y. Supp. 682, service of summons on the assistant
treasurer was held to be void for the reason that he was not the president or other head of the
corporation, the secretary or clerk to the corporation, the cashier or treasurer, or a director or
managing agent. (See, also, City of Watertown v. Robinson, 59 Wis. 515; Mariner v. Town
of Waterloo, 75 Wis. 440; Alexandria v. Fairfax, 95 U.S. 779; Kennedy v. Hibernia S. & L.
Soc., 38 Cal. 154; Aiken v. Mining Co., 6 Cal. 186; Cloud v. Inhabitants, 86 Mo. 362;
Willamette F. C. M. & T. Co. v. Williams, 1 Or. 112, 113; Mining Co. v. Marsano, 10 Nev.
376; Blanc v. Mining Co., 30 Pac. Rep. 765; Jepson v. Cable Co., 20 N. Y. Supp. 300; Kibbe
v. Benson, 17 Wall. 627; Reinhart v. Lugo, 86 Cal. 395.) It was not designed by the
legislature that a service of process upon the deputy secretary of state should be deemed
sufficient to bring a corporation into court. We are therefore compelled to hold that the
service in this case gave the court no jurisdiction of the defendant. Whether before service
can be made upon the secretary of state, it must appear that the company has none of the
officers mentioned in section 3051, Gen. Stat., within the state, or as to how that fact, and the
further fact that the company has not appointed the agent required by the law of 1889, are to
be made to appear, are questions that have not been argued, and concerning which we express
no opinion.
In addition to the return as made by the sheriff on the summons, there is an affidavit of one
William H. Tully, who deposes that on the 12th day of August, 1891, he deposited in the
postoffice a copy of the summons attached to a certified copy of the complaint in this
action, addressed to the president and board of trustees of the Keyes Silver Mining
Company at it's office in San Francisco, California.
office a copy of the summons attached to a certified copy of the complaint in this action,
addressed to the president and board of trustees of the Keyes Silver Mining Company at its
office in San Francisco, California. This affidavit was made in compliance with the first
proviso of the second subdivision of section 3051, Gen. Stat., which requires that if the suit
be against a corporation organized under the laws of the state of California, in addition to
such personal service, a copy of the summons, attached to a certified copy of the complaint,
shall be deposited in the postoffice, addressed to the president and trustees of said
corporation, at their place of business in the state of California, if the same is known, or can,
after due diligence, be ascertained. In this case no personal service was made on any agent,
cashier or secretary, president or other head thereof, of such corporation. The affidavit
therefore adds no force to the return as made by the officer on the summons.
The attorney for respondents argues that, the appeal being from the judgment, all
presumptions are in favor of the regularity of the proceedings, and being a judgment by
default, the presumption is that all things necessary to be proved to support the finding and
judgment were proved; that the court having found and so recited in its judgment, that
summons was issued and served as by law provided, and that all parties were properly before
the court, such statement is conclusive as to any objection to the service of summons; and he
relies upon the decision of this court in the case of Blasdel v. Kean, 8 Nev. 308, in support of
the above. That the judgment in this case, it being an adjudication by a court of general
jurisdiction, is evidence of its own validity, will not be disputed. That such a judgment is
sufficient to sustain an action or defense, without other proof, will also be conceded. But is
such judgment so conclusive; is the presumption in its favor so great as to preclude the
appellate court from inquiring into the facts of such jurisdiction in a direct attack to set aside
such judgment, when the record upon which the nisi prius court acted is before us, and
contains all the evidence upon which the court acquired jurisdiction of the defendant? The
summons, with the affidavit or proof of service, is as much a part of the record as the
judgment. Section 3227, Gen. Stat., in stating what papers shall constitute the judgment roll,
reads: First, In case the complaint be not answered by any defendant, the summons shall be
the affidavit or proof of service, and the complaint with the memorandum indorsed on the
complaint that the default of the defendant in not answering was entered and a copy of
the judgment."
summons shall be the affidavit or proof of service, and the complaint with the memorandum
indorsed on the complaint that the default of the defendant in not answering was entered and
a copy of the judgment.
Therefore the question for us to decide is, did the court in fact have jurisdiction of the
defendant by the service of summons personally or constructively, not did the court decide
that it had jurisdiction? If it did not have jurisdiction, then its decision should be set aside;
and it matters not what facts it may have found or what questions it may have decided, unless
there was jurisdiction the entire proceeding is void, for on appeal, presumptions in regard to
the regular acquisition of jurisdiction over the defendant in the court below do not exist. If the
record fails to show that jurisdiction has been obtained the judgment will be reversed.
(Freem. Judgm. 4th ed. Sec. 537.) And in Black, Judgm. Sec. 93, it is said: On appeal from a
judgment by default nothing will be presumed in its favor. The record must show
affirmatively the existence of every material fact to give the court jurisdiction, and that all the
proceedings were in accordance with law. It is a well-settled rule of practice that where a
judgment is taken by default against a defendant in an action, the record must affirmatively
show that process had been duly served the required length of time before default was taken.
And at section 95 he says: An appeal will lie from a judgment entered upon the default of
the defendant, in a proper case, as well as from any other judgment.
In the case at bar, as the return of the sheriff shows that the service of process was made
upon the deputy secretary of state, we can not presume that it was also made upon the
secretary, or that it was made upon an agent or officer of the corporation, or that the service of
summons was had by publication, the statute requiring that the judgment roll shall contain the
affidavit or return of service. We can not presume that the court acted on other or additional
evidence, outside of the record; and as held by all the courts, when the return contradicts the
finding in the judgment as to service of process, the finding must be disregarded, and we are
to be controlled by the return of the officer in the record. (Pollard v. Wegener, 13 Wis. 575;
Shea v. Railroad Co., 6 Baxt. 277; Hobby v. Bunch, 83 Ga. 11; Railroad Co. v. Ashby's
Trustees, 86 Va. 235; Coan v. Clow, 83 Ind.
419; Cloud v. Inhabitants, 86 Mo. 366; Adams v. Cowles, 95 Mo. 506; Odell v. Campbell, 9
Or. 300; Settlemier v. Sullivan, 97 U.S. 448; Cheely v. Clayton, 110 U.S. 708; Galpin v.
Page, 18 Wall. 365; Belcher v. Chambers, 53 Cal. 639.) As to the case of Blasdel v. Kean,
supra, we are of the opinion that while it was, perhaps, under the peculiar circumstances there
existing, correctly decided, the opinion is wrong in applying the presumption which supports
a judgment where it is collaterally attacked to a case where the attack is direct. The cases
cited to support the presumption statedHahn v. Kelly, 34 Cal. 391, and Alderson v. Bell, 9
Cal. 315were both cases of collateral attack, and it is clear that the court failed to note the
broad distinction which exists between that and a direct attack. Upon an appeal from a
judgment by default we are of the opinion that the record must affirmatively show jurisdiction
of the defendant, either by his appearance or by a proper service of process, and no
presumption can be indulged that there was some other and different service made from that
which appears in the record. (Schloss v. White, 16 Cal. 68; People v. Bernal, 43 Cal. 387.) So
far as the case of Blasdel v. Kean is in conflict with the law as here stated, it is overruled.
It is argued by respondents that the action being in its nature a proceeding in rem, the
notice as published to lien holders was of itself sufficient to give the defendant notice of the
pendency of this action, and supports the finding of the court that the defendant had been
served as required by law. We cannot agree with them in any such conclusion. Section 3822,
Gen. Stat., reads: Said liens may be enforced by an action in any court of competent
jurisdiction on setting out in the complaint the particulars of the demand, with a description
of the premises to be charged with the lien, and at the time of filing the complaint and issuing
the summons, the plaintiff shall cause a notice to be published at least once a week for three
successive weeks in a newspaper published in the county, * * * notifying all persons holding
or claiming liens under the provisions of this act, on said premises, to be and appear before
said court on a day specified therein, and during a regular term of such court, and to exhibit
then and there the proof of said liens. From the reading of the above, the plaintiff must file a
complaint stating a cause of action; second, he must have a summons issue thereon, and he
ought to cause notice to other lien claimants to be published in a newspaper.
notice to other lien claimants to be published in a newspaper.
The complaint is for the information of the court and the defendant, to satisfy it and him
that the plaintiff has a good cause of action against the defendant, and that it is properly
stated. The summons is for the sole benefit of the defendant, notifying him that an action has
been commenced, and ordering him to appear at a time and place therein mentioned, and
demur or answer to the complaint, or the relief therein demanded will be taken against him.
This summons must be served upon him, either personally or constructively, and in the
manner pointed out by the statute; for it is only by such service or personal appearance that
the court obtains jurisdiction of the defendant. The notice published is for the benefit of all
persons who have performed labor upon or furnished material to improve the property against
which the lien is sought to be enforced. They are not required to have summons issue upon
their claims, for the issuance of the summons in the first instance, when served upon the
defendant, is deemed sufficient to put him upon his defense against all lien claimants, but the
entire proceedings will be governed by the nature of the service made in the first instance.
Our constitution guarantees that no person shall be deprived of his property without due
process of law; and although public policy demands that credence should be given to the
findings and judgments of courts of general jurisdiction; yet it must not be carried to the
extent of establishing conclusive presumptions which would have a tendency to deprive a
citizen of these rights. It is a principle that lies at the foundation of all jurisprudence in
civilized countries that a person must have an opportunity of being heard before a court can
deprive him of his rights. Any other doctrine would be antagonistic to our form of
government and to the provisions of our constitution. It would work great wrong, and render
the administration of justice a mere form. Until a defendant in an action is served with
process in one of the modes pointed out by the statute, and given a reasonable opportunity of
being heard in defense of his rights, a court has no power to divest him of his property. The
defendant not having been served with process, the judgment is reversed, and the cause
remanded.
____________
21 Nev. 322, 322 (1892) Haydon v. Brown
[No. 1363.]
THOMAS E. HAYDON, Respondent, v. SAMUEL BROWN
et al., Appellant.
Nuisance, Abatement ofDam.In an action to abate a nuisance caused by a dam across a river, appellant, who
owned the land on the opposite side of the river from respondent, admitted that he had constructed the dam
to the center of the stream, but disclaimed any ownership in, or participation in the erection of the part on
plaintiff's side, but alleged that it had been done by his lessee without his authority. Held, that appellant had
no cause to complain of a decree that his lessee abate the part of the dam on respondent's side of the river.
Action by Thomas E. Hayden [Haydon] against Samuel Brown and the Reno Electric
Light and Power Company to abate a nuisance caused by the construction of a dam across a
stream. Judgment against the light and power company. Brown appeals.
The plaintiff and defendant Brown owned land on either side of the Truckee river. The
plaintiff alleged that his land extended to the middle thread of the stream. This was not
denied in the answer. The action was brought to abate a dam constructed by the defendants
across the river at that point, and which plaintiff alleged had damaged him by causing his land
to be overflowed and washed away. The defendant Brown admitted that he had constructed a
dam on his side of the stream to the middle thread thereof, as he claimed the right to do, but
denied that it had caused the plaintiff any damage, and denied that he had constructed it or
authorized its construction on the plaintiff's side, but alleged that this had been done by his
lessee, the light company, without his authority or consent. No judgment was entered against
defendant Brown, but it was decreed that the light company should abate that part of the dam
which it had constructed on the plaintiff's side of the stream.
Robert M. Clarke and Charles A. Jones, for Appellant.
I. The Truckee river is not a non-navigable but is a navigable water course. It is used for
transporting wood, logs and lumber to market.
lumber to market. (Rev. Stats. U.S. Sec. 2395; Shoemaker v. Hatch, 13 Nev. 261, 267; Gould
on Waters, Secs. 7, 8, 9.) It is meandered, and thus reserved for public use. (Rev. Stats. U.S.
Sec. 2395 and 2476; Shoemaker v. Hatch, 13 Nev. 267.)
II. The center, or middle thread of the stream, is not a fixed and immovable point, but is a
varying, movable point depending upon the stage of the water, flow of the current and
shifting of the true bed of the stream. (Black's Law Dic. 773; Anderson's Law Dic. 460;
Abbott's Law Dic. 497.)
III. Whether the Truckee river be a navigable or non-navigable stream, respondent by
virtue merely of his ownership of land washed by the stream, or over which the stream flows
in its bed, is not the owner of any valuable water power as decreed by the court below. In this
state such ownership can only be acquired by the appropriation of the water and the
application of it to some useful or beneficial purpose. (Barnes v. Sabron, 10 Nev. 217;
Straight v. Brown, 16 Nev. 317; Hobart v. Wicks, 15 Nev. 418; Smith v. Logan, 18 Nev. 149;
Schultz v. Sweeny, 19 Nev. 359; Reduction Works v. Stevenson, 20 Nev. 269.)
Thos. E. Haydon, in pro. per. for Respondent.
I. None of the questions made in appellant's brief were made in the court below in the
pleadings, evidence or argument and cannot therefore be considered in this court. (Dalton v.
Libby, 9 Nev. 192; Grant v. Hunsacker, 55 Am. Dec. 411; Amidown v. Osgood, 58 Am. Dec.
172; Western Stage Co. v. Walker, 65 Am. Dec. 797; Bassett v. Carleton, 54 Am Dec. 606.)
II. Appellant has no interest in the questions he seeks to raise on appeal. The court below
decreed in his favor every interest he claimed in his answer and he has no pecuniary interest
in any question he makes on this appeal. (Wiggins v. Swett, 39 Am. Dec. 719; Smith v.
Bradstreet, 16 Pick. 264; Marr v. Hanna, 23 Am. Dec. 449; Black v. Kirgan, 28 Am. Dec.
394; Ringold v. Barley, 59 Am. Dec. 111; Sanford v. Howard, 68 Am. Dec. 106.)
This action was brought to abate a nuisance caused by a dam constructed across the
Truckee river, to enjoin its future maintenance, and for damages.
constructed across the Truckee river, to enjoin its future maintenance, and for damages.
Samuel Brown and the Reno Electric Light & Power Company, a corporation, were made
defendants. Brown answered for himself alone, and the company failing to answer, its default
was duly entered. The cause was tried by the court and jury. Special issues were submitted
and found in favor of defendant Brown, and he alone appeals from the judgment.
The points in this decree to which the appellant objects are: First, the establishment of
the Truckee river as a non-navigable water course; second, the establishment of a fixed,
arbitrary and immovable center or middle thread of the stream; third, the extension of
respondent Haydon's land to such fixed, permanent and immovable center or middle thread;
fourth, the recognition and establishment of a valuable water right in respondent Haydon, by
virtue of his ownership of land extending to the center or middle thread of the Truckee river.
In our opinion, the decree is entirely in favor of the defendant Brown. No injunction is
entered nor are any damages awarded against him. The decree directs that as against him the
plaintiff shall take nothing. The finding that the plaintiff's land extends to the middle thread
of the stream is in accordance with the admissions in the pleadings, and was really invited by
the defendant, who claimed in his answer to own on the other side of the river, to the same
middle thread, and to have the right to maintain his dam to that point. As no injunction was
granted against his so doing, this right must have been found in his favor. As the navigability
or non-navigability of the river could only affect the parties as to their ownership of the bed
of the stream, these allegations and admissions make the finding that the river is
non-navigable entirely immaterial.
As Brown disclaims in his answer all ownership or title to that part of the dam erected on
the plaintiff's side of the stream and decreed to be a nuisance, and all right to maintain the
same, and denies that he constructed it or authorized its construction, he is not prejudicially
affected by that part of the decree directing the other defendant to abate it. As upon every
issue in the pleadings the decree is in appellant's favor he has no cause to complain of it.
The judgment appealed from is affirmed.
____________
21 Nev. 325, 325 (1892) Comstock Mill & Mining Co. v. Allen
[No. 1345.]
THE COMSTOCK MILL AND MINING COMPANY, Appellant, v. L. ALLEN et als.,
Respondents.
Jurisdiction on AppealOrder Re-taxing Costs.Where the case as made in the court below is one of which
this court might have appellate jurisdiction, it has jurisdiction of an appeal from an order retaxing costs,
made subsequent to judgment, although the case was dismissed by the plaintiff in the court below, and
although the amount involved is less than three hundred dollars.
Constitutional LawSubsequent Changes in Constitution.An act of the legislature, which was
unconstitutional at the time of its enactment, will not obtain validity by a subsequent change in the
constitution, authorizing such legislation.
IdemOrmsby County Fee and Salary Act.The act of the legislature (Stat. 1887, p. 126) regulating the fees
and compensation of the officers of Ormsby county is not unconstitutional as being local or special
legislation.
Statutory ConstructionJuratCertificates.A jurat is not a certificate, within the meaning of the fee bills,
and, as the statute does not provide any fee for a jurat, where the oath is administered either by a notary
public or the county clerk of Ormsby county, those officers are not entitled to charge anything therefor.
Trenmor Coffin, for Appellant.
I. The Ormsby county fee bill of 1887 is special legislation, being made for one county
alone when a general fee bill was in force, and is in direct contravention of section 20 of
article IV of the constitution, as that section stood when the act was passed. (State v. Boyd, 19
Nev. 43; State v. California M. Co., 15 Nev. 234; Evans v. Job, 8 Nev. 322.)
II. The court below erred in allowing as costs a charge of one dollar and twenty-five cents
for the jurat of the clerk upon the theory that such jurat is a certificate. The word certificate,
as used in the fee bill, and as commonly and everywhere understood, and as defined in the
books, refers to quite a different thing from the jurat of an affidavit (Bouvier's Law Dic.
Vol. 1, 250; Anderson's Law Dic. 160; Burrell's Law Dic. Vol. 1, p. 266; Rapalje & Lawrence
Law Dic. Vol. 1, 185.)
III. The jurat is a part of the affidavit and the clerk is not entitled to charge twenty-five
cents for taking the verification to a complaint, answer or cost bill, until he has placed his
jurat upon it. (Wharton's Law Dic. 407; Bouvier's Law Dic. 14th Ed., Vol. 1, 97, 768;
Wharton's Law Lex. 441; Rapalje & Lawrence Law Dic. 191; Brown's Law Dic. 191;
Burrell's Law Dic. Vol. 2, 110; Morris v. State, 2 Tex. App. 503.)
IV. This court has jurisdiction to determine the appeal. If the district court has original
jurisdiction to determine or pass upon a question involving less than three hundred dollars,
the supreme court must have jurisdiction to review it. Every reason in favor of the
jurisdiction of the district court to try, applies with equal force to the jurisdiction of this court
to review. (Klein v. Allenbach, 6 Nev. 162; Gallagher v. Holland, 20 Nev. 167; Peacock v.
Leonard, 8 Nev. 84.) All civil cases which the district court have jurisdiction to try, this
court has jurisdiction to review, no matter what the judgment of the district court may have
been. (Solomon v. Reese, 34 Cal. 28-33; Dashiell v. Slingerland, 60 Cal. 655; Baily v.
Sloan, 65 Cal. 388; Lord v. Goldberg, 22 Pac. Rep. 1126.)
in reply.
V. While the position of counsel for respondents that the order of the court below is not
appealable and that the appeal could only have been taken from the judgment, appears to be
supported by the earlier California decisions, yet those decisions have been overruled by later
decisions of the California supreme court, and it is now well settled in that state, under
statutes identical with ours, that an order re-taxing costs made after final judgment is an
appealable order. (Dooly v. Norton, 41 Cal. 441; Calderwood v. Peyser, 42 Cal. 112; Clarke
v. Crane, 57 Cal. 633; Empire Co. v. Bonanza Co., 67 Cal. 410; Muir v. Meredith, 82 Cal.
23.)
Sardis Summerfield and J. D. Torreyson, for Respondents.
I. The appeal should be dismissed for the reason that the order is not appealable. It is not a
special order made after final judgment, for although made subsequent to the entry of the
judgment in mere point of time, yet in legal effect it relates back to and became a part of the
judgment.
back to and became a part of the judgment. The appeal should have been taken from the
judgment and have been accompanied by a statement. (Flubacher v. Kelly, 49 Cal. 116; Lasky
v. Davis, 33 Cal. 677; Levy v. Getleson, 27 Cal. 688.)
II. The Ormsby county fee and salary act of 1887 is not inimical to Sec. 20 of Art. IV. of
the constitution. It is neither special nor local legislation within the meaning of the
constitution. (Evans v. Job, 8 Nev. 322.)
III. Even should that portion of the act fixing a schedule of fees be held to be
unconstitutional, the entire act will not be declared to be void if the unconstitutional features
can be eliminated without defeating the whole object and scope of the act. (Rosenstock v.
Swift, 11 Nev. 129; Evans v. Job, 8 Nev. 322; State v. Eastabrook, 3 Nev. 173.)
IV. The act of 1887 (Stats. of 1887, p. 126) expressly distinguishes between a simple
certificate and a certificate under seal, and provides for a separate charge for each. A jurat
is a simple certificate and is so defined. (Burrill's Law Dic. 646; 1 Barbour's Ch. Pr. 44 and
144.) The derivation of the word certificate (from certus, certain, and facere, to make)
shows that any authenticated record exhibiting to a certainty that some particular thing has
been done, is a certificate.
This action was brought under the statute of 1889, p. 107, to determine the priority of
rights to the use of the water of the Carson river. A motion by some of the defendants to set
aside the notice of the action was sustained by the court, whereupon the petitioner moved to
dismiss the cause; this motion was granted, and judgment entered for the defendants for costs
of suit, amounting to two hundred dollars and twenty-five cents. A motion by the petitioner to
retax the costs was partly overruled, and from this order the appeal is taken.
The first question which presents itself is whether this court has jurisdiction of the appeal,
the amount involved being less than three hundred dollars.
It is admitted that the case, as brought in the district court, is one that this court could have
had jurisdiction of upon appeal, had it not been dismissed by the petitioner; but it is
contended, as we understand the matter, that this dismissal ended the case as such; that if
before such dismissal it had been a case in equity, after, it became a mere money demand
for less than three hundred dollars.
the case as such; that if before such dismissal it had been a case in equity, after, it became a
mere money demand for less than three hundred dollars. But there does not seem to be any
sufficient reason for supposing that the dismissal had the effect of so entirely separating the
proceedings. The case still existed for all proper and necessary purposes; if an execution
were issued, it would certainly be in that case, and the motion to retax the costs was as much
a part of the case as was the filing of the complaint or the order for judgment.
A case is defined to be an action, suit, or proceeding. It embraces everything from the
filing of the complaint to the entry of satisfaction of the judgment. They are all steps in, or
parts of, the same case. It being admitted that this court has jurisdiction of the case, this
necessarily means that it has jurisdiction of every part of it, in so far at least as the legislature
has made provision for the parts being brought up on appeal. The statute provides that there
may be an appeal from certain preliminary orders, from the final judgment, or from any
special order made after judgment. The right to appeal from such special order is of equal
rank and dignity with the right to appeal from the judgment. One right in no manner depends
upon the other. It is the case as made in the district court, and not the amount involved in the
appeal, that gives the right to appeal. This was so held in regard to a judgment in Klein v.
Allenbach, 6 Nev. 159, and in Solomon v. Reese, 34 Cal. 28.
The case being a proper one, the time and manner of taking the appeal become a mere
matter of statutory regulation. Whether the appeal may be from a part of the case at a time, or
only from the whole of it at once, is for the legislature alone to determine. (Burbank v. Rivers,
20 Nev. 81.) The statute provides for an appeal from any special order made after
judgment. The right is given without limitation or restriction. Why then attach to it the
condition that the order must not have been made in a case in which the party has consented
to the judgment, or in which he has lost the right to appeal from the judgment? He has never
consented to the order, and his consent to the judgment will not make the order any the less
injurious to him, nor in any way affect its legality when made. Its correctness in no wise
depends upon the judgment, but upon entirely extraneous matters.
Wilde v. Wilde, 2 Nev. 306, seems squarely in point. There, in an action for divorce,
judgment had gone in favor of the defendant. Subsequently the court made an order for him to
pay the plaintiff one hundred and ninety-three dollars and twenty-five cents as alimony
pendente lite, and as expenses of suit. From this order the defendant appealed, and in
considering the question of jurisdiction, the court said: It is urged that this court has no
jurisdiction in this case, because the amount ordered to be paid is less than three hundred
dollars. This court has jurisdiction in all chancery cases, whatever may be the amount in
controversy. This comes within the jurisdiction of this court. The order complained of was
made after judgment, and is therefore an appealable order under the statute. In line with this,
it was held that where the case was not one which could be appealed, no appeal could be
maintained from an order made subsequent to judgment. (Gorton v. Ferdinando, 64 Cal. 11;
Hayne, New Trials & App. pp. 524, 589.)
In California it was at one time held that there could be no appeal from an order striking
out a statement on motion for a new trial, but this was overruled in Calderwood v. Peyser, 42
Cal. 110, where Wallace, J., in pronouncing the opinion of the court, used this language: The
case at bar is one involving the title of certain real estate, and, as a case, is therefore clearly
embraced within the appellate jurisdiction of this court. A case is a state of facts which
furnishes occasion for the exercise of the jurisdiction of a court of justice. To the existence of
such a case parties are necessary; also pleadings and proceedings. Trials, orders, judgments,
etc., usually follow. These together constitute the case, and when, as here, that case is itself
one within the appellate jurisdiction of this court, any order made therein by the court below
becomes a part of it, and must consequently be subject to the power of this court to review it.
* * * Accordingly the statute allows an appeal to be taken directly from any special order
made after final judgment, as the only safe and convenient method for its review. The statute
declares such an order made subsequently in point of time to the rendition of the judgment, to
be the subject of a distinct appeal, and we are not at liberty to add that it must also be an order
made in the direct line of the procedure. That an appeal will lie from any such subsequent
order has now become the settled doctrine in California (Stonesifer v. Kilburn, 29 Pac. Rep.
332), as well as in our own state (Marshall v. Golden Fleece, etc., Co., 16 Nev. 156).
Mr. Hayne, in his work on New Trials (page 584), says: It results that any order which is
subsequent in point of time to the judgment is a special order made after final judgment,' and
is appealable. * * * So that the rule is that any order subsequent in point of time to the entry
of judgment is appealable. This, indeed, is the plain language of the statute, and there seems
to be no reason for attaching to the right of appeal conditions that are not found therein.
What we have already said will sufficiently indicate our views upon the objection that
there can be no appeal from the order re-taxing the costs of an action, and that the question of
costs can only be considered upon an appeal from the judgment. This was at one time the rule
in California, under a similar statute, but it is now held there, as we think correctly, that
where the question of costs arises subsequently to the entry of judgment, an appeal from the
order is the correct and only remedy. (Hayne, New Trials & App. Sec. 197.)
In the matter of costs, the only question presented upon the appeal is that concerning the
amount properly chargeable for verifying the answers and cost bills in the case, of which a
number were filed by the different defendants. The charge made is one dollar and twenty-five
cents in each instancetwenty-five cents for administering the oath and one dollar for
attaching a jurat to the affidavit, upon the theory that the jurat constitutes a certificate, for
which that amount is allowed by the statute of 1887 (page 126), regulating the fees and
compensation of the officers of Ormsby county.
It is first contended that this act is unconstitutional, upon the ground that it is special
legislation, applicable only to Ormsby county, and, as such, in conflict with section 20 of
article 4 of the constitution as it stood prior to the amendment adopted in 1889. It becomes
necessary to pass upon this question, because that act allows larger fees for these services
than are allowed by the general statutes, which, if this act is unconstitutional, would govern
their amount. If the statute was in conflict with the constitution as it stood at the time of the
passage of the law, the subsequent change in the constitution authorizing such legislation
would not validate it. (State v. Tufly, 20 Nev. 427.) We are of the opinion, however, that in
the case of State v. Fogus, 19 Nev. 247
the case of State v. Fogus, 19 Nev. 247, the question of the constitutionality of such a statute
was settled adversely to the appellant, and as the reasoning of the case seems clear and
satisfactory, we see no grounds for refusing to follow it here.
We are also of the opinion that a jurat is not a certificate within the meaning of the law
fixing the fees of officers. What the legislature meant by the word certificate, as used in this
act, is, of course, the real point for decision here. It is not sufficient that in some senses a jurat
may be a certificate, if that is not the sense in which it is used here. So far as that is
concerned, it may be said that any writing attesting a fact is a certificate of that factfor
instance, filing a paper is usually defined as the placing of it in its proper place among the
files, and the indorsement made upon it is but the evidencethe certificatethat it has been
so placed. But while the indorsement certifies to the fact of the filing, it certainly would not
be called a certificate, within the meaning of this act. In the same sense the jurat attests or
certifies to the fact that the oath has been administered. But this is not the usual meaning of
the word certificate. We are of the opinion that as used in this act, the legislature intended a
formal certification of some fact, such as the certificate attached to a judgment roll, to a
certified copy of a record or paper, and similar instances. This is the usual meaning of the
word, and in the absence of any reason to the contrary, must be presumed to be the sense in
which it is used here. In the construction of statutes a word which has two significations
should ordinarily receive that meaning which is generally given to it in the community.
(Suth. Stat. Const. Sec. 248.) Where words are used generally, the natural conclusion is that
the popular meaning is the one intended. (Ormsby Co. v. State, 6 Nev. 283.)
No fee being provided for the jurat, where the oath is administered by a notary public or
the county clerk of Ormsby county, these officers are required to perform that service without
compensation; and it follows that one dollar of the charge made for the administration and
certification of each oath should have been struck out of the cost bills and disallowed.
The order appealed from is reversed.
Murphy, J., expresses no opinion.
____________
21 Nev. 332, 332 (1892) State v. Murphy
[No. 1365.]
THE STATE OF NEVADA, Appellant, v. THOMAS MURPHY, Respondent.
Criminal LawAppeal by StateBill of Exceptions Required.Where there is no statute directing what the
record shall be upon an appeal by the state in a criminal case, the alleged errors must be presented by
means of a bill of exceptions. If not so presented the appeal will be dismissed.
J. D. Torreyson, Attorney General, and C. E. Mack, District Attorney of Storey county, for
Appellant.
(No brief on file.)
William Woodburn, for Respondent.
(No brief on file.)
Appeal by the state from an order overruling a demurrer to a plea of former conviction
interposed by the defendant, and directing that the defendant be thereupon discharged from
custody. The appeal is taken upon a record simply setting out what purports to be a copy of
the indictment, the plea, the demurrer and the order of the court thereon. The defendant
moves to dismiss the appeal upon the ground that there is no bill of exceptions or statement in
the case. This, of course, is based upon the theory that without such bill of exceptions or
statement there is nothing for this court to consider. Being of the opinion that this motion
must be granted, we have not found it necessary to determine whether the case, as it now
stands, is an appealable one.
There seems to be no provision of the statute directing what the record in a criminal case
shall be, except where the defendant has been convicted (Gen. Stat. Sec. 4330), or where an
appeal is taken by the state from an order sustaining a demurrer to an indictment.
21 Nev. 332, 333 (1892) State v. Murphy
peal is taken by the state from an order sustaining a demurrer to an indictment. (Stat. 1889, p.
24.)
Prior to the passage of the latter statute, it was twice held by this court that the only
manner in which the action of the district court in sustaining a demurrer to an indictment
could be presented for review was by means of a bill of exceptions. (State v. Fellows, 8 Nev.
311; State v. Lamb, 20 Nev. 181.) It was probably in view of these decisions that the statute
was passed, but it goes no further than to cover the single case of where a demurrer to an
indictment has been sustained. With this exception, there is no method provided by which the
state may bring up cases from which it is entitled to an appeal. As, where there is no
conviction, the statute does not direct what the record shall be, and there is nothing in the
nature of a judgment roll by which errors might be presented, it would seem, as stated in State
v. Fellows, supra, that the most favorable view to the state would be to allow the appeal on
bill of exceptions, in analogy to other provisions of the statute. At any rate, there must in
some manner be presented upon the appeal an authentic record of the action of the court
below, before we can proceed to pass upon its correctness. (State v. Ah Mook, 12 Nev. 369;
State v. Baker, 8 Nev. 141.)
It was suggested upon the argument that a bill of exceptions had been presented to the
district judge, which was then in process of settlement, but we do not conceive that this fact
can change the status of the case as it now stands in this court.
Appeal dismissed.
____________
21 Nev. 333, 333 (1892) State v. Clarke
[No. 1367.]
THE STATE OF NEVADA ex rel. S. SUMMERFIELD, DISTRICT ATTORNEY,
Respondent, v. WILLIS G. CLARKE, Appellant.
Constitutional LawNotary Public.The office of notary public is a civil office of profit under this state,
within the meaning of section 9 of article 4 of the constitution.
IdemReceiver in United States Land OfficeUnder that section the receiver of public money in a United
States land office is ineligible to the office of notary.
IdemAppointive Officers.That section applies to appointive as well as to elective officers.
IdemOfficers Ejusdem GenerisSection 32 of article 4 of the constitution, as it formerly stood,
requiring the legislature to provide for the election of certain state and county officers, and other
necessary officers, referred by the words quoted to officers ejusdem generis with those enumerated, and
not to other classes of officers.
Richard Rising, District Judge
Robert M. Clarke, for Appellant.
I. Appellant is not an officer within the meaning of the constitutional provision. The
position of notary public is not a civil office. The constitution was intended to prevent the
holding of inconsistent offices, the duties of which are incompatible. The duties of notary
public and receiver of public money are not incompatible.
II. The position of notary public is not within the letter of the constitutional inhibition. It
is not a civil office within the definition of that term, according to the courts or law
dictionaries. (Anderson's Law Dic. 728; 99 U.S. 24; 124 U.S. 313.) A civil office is one that
involves the exercise of some public function or power of government. (Anderson's Law Dic.
185; 99 U.S. 24.)
III. The constitution includes only elective offices and has no application to an appointive
office, such as notary public. This view is strengthened by the etymology of the word
eligible, which strictly defined means fit to be chosen, capable of being chosen.
(Webster's Dic. 385; 6 Am. & Eng. Ency. of Law, 447.)
IV. If the position of notary public is a civil office, under the government of this state,
within the meaning of art. 4, sec. 9 of the constitution, it must be filled by election, and
cannot be filled by appointment. (Sec. 32, Art IV. Const. of Nev., State v. Arrington, 18 Nev.
412.)
Sardis Summerfield, in pro. per., for Respondent.
I. Notaries public are amongst the most ancient of civil officers, and have always been
recognized and regarded as such by the "Law Merchant" branch of the common law.
cers, and have always been recognized and regarded as such by the Law Merchant branch
of the common law.
II. Not only are notaries civil officers within the spirit and meaning of our constitution,
but they are such by the express terms of our various statutes. They are civil officers by
appointment. (Gen. Stats. 1636.) They receive a commission from the secretary of state, file
official bonds and take an official oath. (Gen. Stats. 2236.) They are required to keep public
records. (Gen. Stats. 2248.)
III. The term civil office of profit under this state was intended to confine the class of
offices, from which a party was to be excluded, to offices of profit as distinguished from
offices of honor only, and to civil offices as distinguished from military offices. The
words civil offices as used in constitutions are meant to contradistinguish from the words
military offices. (Anderson's Law Dic. 185, Sec. 6.)
IV. The argument of appellant that the constitution includes only elective offices and has
no application to appointive offices, is in direct contravention to the decision of this court,
which has extended the meaning of the word eligible to capable of legally holding.
(Nourse v. Clarke, 3 Nev. 570; Marshall v. Leonard, 73 Cal. 230.)
V. The decision of this court in State v. Arrington, 18 Nev. 412, is not even suggestive in
this case. The office of notary public is not ejusdem generis to the offices named in article IV
of the constitution and therefore cannot be held to be included in the phrase and other
necessary officers. Language, however general in its form, when used in connection with a
particular subject matter, must be presumed to be used in subordination to that matter and
limited accordingly. (Edgcomb v. Creditors, 19 Nev. 152.)
While the appellant was legally exercising the office of notary public in this state, he was
appointed receiver of public money in the United States land office at Carson City. The court
below held that those two offices were incompatible, under the provisions of section 9 of
article 4 of the constitution of Nevada, which reads as follows: No person holding any
lucrative office under the government of the United States or any other power, shall be
eligible to any civil office of profit under this state; provided, that postmasters whose
compensation does not exceed five hundred dollars per annum, or commissioners of
deeds, shall not be deemed as holding a lucrative office."
power, shall be eligible to any civil office of profit under this state; provided, that postmasters
whose compensation does not exceed five hundred dollars per annum, or commissioners of
deeds, shall not be deemed as holding a lucrative office.
The appellant, however, contends that the office of notary is not a civil office of profit
under this state, within the meaning of this section, and this is the only question presented in
the case. The words office and civil office have several meanings. The sense in which they
are used in any particular place can usually be determined by a reference to the context and
the subject matter of the instrument. Sometimes they would include the president and trustees
of a corporation, executors, deputies, etc., but no such meaning can be attached to them here.
They only refer to such officers as are connected with the civil administration of the
government, and were doubtless intended to include all such, to the exclusion of military
officers. In construing the words civil officers, as used in the constitution of the United
States, Judge Story says: The sense in which the term is used in the constitution seems to be
in contradistinction to military. (1 Story, Const. Sec. 791.) Again, in the next section, he
says: All officers of the United States, therefore, who hold their appointments under the
national government, whether their duties are executive or judicial, in the highest or in the
lowest departments of the government, with the exception of officers in the army or navy, are
properly civil officers, within the meaning of the constitution.
It has been frequently held that a notary is a public officer. (Kirksey v. Bates, 7 Port. (Ala.)
529; Governor v. Gordon, 15 Ala. 72; Smith v. Meador, 74 Ga. 416; Keeney v. Leas, 14 Iowa
464.) He is also recognized and called an officer in our statutes, is to be appointed for a
definite term, is required to take the official oath, to give a bond the same as other officers, to
keep a record of his official acts, and for his services may charge certain fees, which are
regulated by law. Clearly he is an officer.
Then is he a civil officer? As there are but two principal divisions of officerscivil and
militaryknown to our system of state government, it must be that all that do not come
within one class are included in the other. As a notary is not a military officer, he must be a
civil one. By statute, he occupies a position in the civil administration of the government, and
one that is quite important.
and one that is quite important. He is charged with duties to the public at large that constitute
him a public or state officer. (State v. Kirk, 44 Ind. 401; Howard v. Shoemaker, 35 Ind. 111.)
The opinion of the judges in re House Bill No. 166, 9 Colo. 628, is, upon this point, on all
fours with the case in hand. It was there held that the office of notary was a civil office within
the meaning of that term as used in the constitution, and that consequently a bill authorizing
the appointment of one to that position who was not a qualified elector was unconstitutional.
(See also, Mechem, Pub. Off. Sec. 1, et seq.; Id. Sec. 24; Shelby v. Alcorn, 36 Miss. 273.) In
fact, we do not understand it to be particularly contended that a notary is not a public officer,
nor even that he is not a civil officer, but rather, notwithstanding he may be such, that it was
not the intention of the makers of the constitution to include that office in the prohibition
contained in this section.
This position is based, first, upon the proposition that the office of notary does not come
within the mischief intended to be guarded against, and consequently should not be held to be
within its terms. In construing a constitution, the same as any other instrument, we are not
always to be guided by the letter of the act. We are to seek for the meaning that the words
were intended to convey, and endeavor to carry out the intention of those adopting it. But a
fundamental principle in all construction is that where the language used is plain and free
from ambiguity, that must be our guide. We are not permitted to construe that which requires
no construction. It is possible that when the convention adopted this section they did not have
the office of notary in mind, and that if they had, it would have been excluded; but on the
other hand, it is also possible that it would not have been excluded, for there is really as much
reason for including this office as that of many other minor positions, which are admittedly
covered by the section. At any rate, it was within the power of the constitution-makers,
whether sufficient reason did or did not exist for their doing so, to include this office; the
language they have used clearly does include it, and, under the circumstances, that is the end
of the controversy. We are not permitted to speculate further as to what their real intentions
were. (Cooley Const. Lim. 69; End. Interp. Stat. Sec. 6; Sturges v. Crowninshield, 4 Wheat.
204; Gibbons v. Ogden, 9 Wheat. 217.)
It is also contended that the word eligible only refers to elective officers, and consequently
does not include those who hold by appointment; but we are of the opinion that it was
intended, as used here, to include both. It has been several times decided that the word
includes capacity to hold, as well as to be elected to an office, and if such is the case no
distinction can be drawn between elective and appointive officers. If the incumbent is
ineligible to hold an office, it can make no difference whether he obtained it in the first
instance by election or appointment. If the constitution read that certain persons shall not hold
any civil office of profit, instead of shall not be eligible to such office, it would be clear that
this point was untenable, and as it appears that that is what it really means, the same result
follows. (State v. Clarke, 3 Nev. 566, 570; State v. Murray, 28 Wis. 96, 99; Carson v.
McPhetridge, 15 Ind. 327, 331; People v. Leonard, 73 Cal. 230, 233.)
As a further reason for the belief that notaries public were not intended to be included in
this section of the constitution, it is urged that if so, they must under section 32 of article 4 of
the constitution, which requires the legislature to provide for the election of certain state and
county officers and other necessary officers, be elected, instead of being appointed; and the
case of State v. Arrington, 18 Nev. 412, is referred to as sustaining this position. This result
might be conceded without militating particularly against the view we have taken, but we do
not think it follows that such must be the case. By the amendment of 1889, section 32 was
changed so that the words other necessary officers, no longer appear; but even as it
originally stood, they apply only to officers similar to those previously enumerated in the
section, and not to legislative officers, officers of the militia, and other officers belonging to
different classes from those mentioned. (End. Interp. Stat. Sec. 405, 409; Edgecomb v. His
Creditors, 19 Nev. 149, 152.)
No error appearing in the judgment, it must be affirmed, and it is so ordered.
____________
21 Nev. 339, 339 (1892) Jones v. Prospect Mountain Tunnel Co.
[No. 1362.]
JOHN E. JONES et als., Respondents, v. THE PROSPECT
MOUNTAIN TUNNEL COMPANY, Appellant.
Trespass-Construction of Pleadings.Where the complaint alleges that the plaintiffs are the owners and in
possession of a mine, an answer which denies that they are the owners or in possession of a certain part of
the mine, describing it, does not admit plaintiffs' ownership of that part. Nor do the facts that the answer
also alleges that the defendant is the owner of that part of the mine, and that a certain ledge therein found
apexes outside the plaintiffs' boundary lines, constitute such an admission.
Mining PatentsVeins or Ledges Not Conveyed.A patent from the United States for mining ground does not
convey to the patentee the veins or ledges which apex outside the boundary lines of the mine, extended
downward vertically, and the mine owner is not necessarily the owner of such veins.
Mining ClaimExtent of OwnershipBurden of Proof.The presumption, in the first instance, is that the
owner of the mine owns all the veins found within his boundary lines, but when there is evidence tending to
prove that the vein in controversy apexes outside those lines, this, if sufficient, will rebut that presumption;
and as the burden of proving ownership is, when denied, always upon the party alleging it, he must also
meet and overcome this evidence, or he will fail in establishing his title.
Statutory ConstructionRock in Place.By rock in place, as used in the mining statutes, is meant rock that is
enclosed and embraced in the general mass of the mountain, as distinguished from the float, soil and debris
of the surface; and it is not material where the rock or mineral was originally formed or deposited, or that
the vein matter is loose, or broken, or disintegrated.
Title by Adverse PossessionEvidence.Where a defendant pleads title by virtue of adverse possession of a
mine, evidence which tends to prove that such possession has been under a claim of ownership, and in
hostility to the true owner, is admissible.
The facts fully appear in the following statement by the justice delivering the opinion.
Action brought to recover fifty thousand dollars damages, as the value of one thousand
tons of ore unlawfully extracted from the Colorado mine, and for an injunction restraining
defendant from entering upon or further extracting any ore therefrom. The complaint alleged
the plaintiff's ownership and possession, the defendant's trespass, and set up facts looking
to equitable relief.
the defendant's trespass, and set up facts looking to equitable relief. The material parts of the
answer are as follows: The defendant denies that at the time mentioned in said complaint or
at any other time, it wrongfully or unlawfully entered into or upon the mining claim described
in the plaintiffs' complaint, or that at said time or at any other time it excavated or removed
from said mining claim any ore or mineral-bearing rock, or that at said time or at any other
time it converted any ore or mineral-bearing rock excavated or removed from said mining
claim to its own use; or that the ore plaintiffs allege defendant excavated and removed from
said mining claim was of any value whatever, or that plaintiffs have been damaged by the
entry into or upon said mining claim by defendant, or by the excavation or removal of any ore
therefrom, or by the conversion of any ore excavated or removed therefrom by the defendant,
in any sum whatever.
And for a further defense defendant admits that plaintiffs are the owners of all that portion
of the Colorado mining claim described in their complaint except that portion hereinafter
described. And for a further defense defendant alleges that on the
___
day of
___
, 1875, it
was the owner of, in the possession of and entitled to the possession of a certain tunnel
situated upon the public mineral lands of the United States, on and under the western slope of
Prospect mountain, in Eureka mining district, Eureka county and state of Nevada, run for the
purpose of developing veins and lodes of rock bearing valuable mineral and for the discovery
of mines, and to fifteen hundred linear feet of all veins or lodes within three thousand feet
from the face of said tunnel, discovered in said tunnel, on the line thereof, not discovered
previously to the commencement of said tunnel, on the
___
day of
___
, 1875, and said
defendant ever since said date has been, and now is, the owner of, in the possession of and
entitled to the possession of said tunnel, and of all the veins and lodes discovered within three
thousand feet of the face of said tunnel, discovered in said tunnel not discovered previously to
the commencement of said tunnel to the extent of fifteen hundred feet; that said tunnel in its
course enters into and under and crosses the said Colorado mining claim, and one of said
veins or lodes, discovered in said tunnel on the line thereof, about eighteen hundred and fifty
feet from the face thereof, having its top or apex outside of the exterior limits of said
Colorado mining claim on its course downwards, dips under and through said Colorado
mining claim, and certain excavations made upon said vein or lode as above described are
under and within the surface limits of said Colorado mining claim, extended downward
vertically.
limits of said Colorado mining claim on its course downwards, dips under and through said
Colorado mining claim, and certain excavations made upon said vein or lode last above
described are under and within the surface limits of said Colorado mining claim, extended
downward vertically.
And defendant denies that plaintiffs are the owners of or in the possession of, or entitled to
the possession of said tunnel, or any portion thereof or of said vein, or any portion thereof or
of the excavations thereon, or of any portion thereof. The answer then sets up five years
quiet, peaceable, actual and exclusive possession of all of said tunnel and of said vein or
lode and of the excavations thereon above described, by the defendant, and follows with
denials of the equitable cause of action.
The evidence shows that the Colorado had been worked downward from the surface a
distance of about one hundred and sixty-six feet. The ledge in controversy was struck in
defendant's tunnel nine hundred feet below the surface and had been worked upward a
distance of three hundred and ninety-four feet. The two workings were separated by between
three hundred and four hundred feet of unexplored ground.
At the plaintiffs' request, the court gave the following instructions: No. 2. It is admitted
by the pleadings that the plaintiffs were, when the alleged wrongs were committed, and now
are, the owners in fee and in possession of the Colorado mine. It is also admitted that the
defendant entered beneath the surface of said Colorado mine, and extracted ore from a lode
and converted the ore to its use, which lode at the point of entry is within the boundary lines
of said Colorado mine, extended vertically downwards. These admissions are conclusively
upon the defendant. No. 4. A vein, lode, ledge or deposit within the meaning of the law, is
a crack, cavity or fissure in the earth crust, filled with rock in place, bearing gold, silver or
other valuable mineral. The mineral or rock containing the mineral must be in place; that is to
say, in the place where it was originally formed or deposited. Loose, broken rock, or wash,
sand or gravel, float or soil is not sufficient; the rock containing the mineral must be in place
between walls or defined boundaries. The rock must also contain valuable mineral. No. 9. *
* * You are instructed that under the admission and averments of defendant, the burden of
proof rests upon the Prospect Mountain Tunnel Company to prove to you that the lode or
deposit so admitted to be within the limits of the Colorado mine has its top or apex
outside of the exterior lines of the Colorado mine extended vertically downward."
Prospect Mountain Tunnel Company to prove to you that the lode or deposit so admitted to
be within the limits of the Colorado mine has its top or apex outside of the exterior lines of
the Colorado mine extended vertically downward.
Defendant's instruction No. 3, refused, was as follows: The court instructs the jury that in
order to entitle plaintiffs to recover they must show by a preponderance of evidence that they
were the owners of the lode, vein or ore body out of which the ore in controversy was taken at
the time it was taken, and to do this it was necessary for them to establish by a preponderance
of evidence that the top or apex of said lode was within the exterior limits of the Colorado
mining claim, extended downward vertically; and if they have failed to do this the jury should
find a verdict in favor of the defendant, the Prospect Mountain Tunnel Company.
The jury found a verdict in favor of the plaintiffs for five thousand dollars, for which
amount judgment was entered in their favor, and an injunction granted restraining the
defendant from entering upon the Colorado. The injunction was subsequently modified so as
to exclude the tunnel from its operation.
Thomas Wren, for Appellant.
I. The admissions of counsel for respondents, and the testimony, shows that the adverse
possession of that portion of the lode out of which the ore came had been as open, notorious,
and continuous as the adverse possession of the tunnel.
II. The evidence is insufficient to support the verdict. It is admitted that the lode disclosed
in the workings from the Prospect Mountain Tunnel extends upward from the lower workings
to the foot of raise nine. Taking that for granted, all of the testimony, both for respondents
and appellant, shows that the top or apex of all that portion of the lode out of which the ore
came lies east of the east line of the Colorado. (Evidence reviewed.)
III. The title of the respondents to the lode and the quantity of ore taken out and its value
having been denied by appellant, it was incumbent upon the respondents to establish by a
preponderance of testimony that they owned the lode or that portion of it out of which the ore
was taken, the quantity that was taken out of that portion and its value.
IV. The evidence of the plaintiffs' own witnesses shows that the apex of that portion of the
lode out of which the ore came lies east of the east line of the Colorado. The plaintiffs' own
maps show that the general inclination of the lode is eastward.
V. The court erred in excluding the notice of the location of the Prospect Mountain
Tunnel. The notice tended to show, in connection with the other evidence offered, that the
defendants were acting in good faith in extracting the ore under appellant's claim and color of
title to the lode out of which the ore was taken.
VI. The court erred in striking out the testimony of Wren. It tended to show the good faith
of the appellant.
VII. The court erred in instructing the jury that it is admitted by the pleadings that the
plaintiffs were, when the alleged wrongs were committed, and now are, the owners in fee and
in possession of the Colorado mine. The pleadings do not admit that the plaintiffs, when the
alleged wrongs were committed, were or now are the owners of the Colorado mine.
Appellant's answer explicitly denies that the plaintiff at such time, or now are the owners of
or in the possession of that part of the Colorado embraced by the tunnel, or of the lode out of
which the ore came, or the excavations thereon.
VIII. The court erred in instructing the jury in effect that the plaintiffs are the owners of
the Colorado mine. This was equivalent to an instruction that the plaintiffs owned the tunnel,
and entirely ignored the plea of the statute of limitations in regard to the ownership of the
lode and the excavations thereon.
IX. The court erred in instructing the jury that: A vein, lode, ledge or deposit within the
meaning of the law, is a crack, cavity, or fissure in the earth's crust filled with rock in place,
bearing gold, silver and other valuable mineral; the mineral or rock containing the mineral,
must be in place; that is to say, in the place where it was originally formed or deposited.
Loose, broken rock, or wash, sand or gravel, float or soil, is not sufficient. The rock
containing the mineral must be in place between walls or defined boundaries. The rock must
also contain valuable mineral. The instruction is entirely too narrow. The error in the
instruction is in the attempt made to define what is meant by rock in place in the United
States statutes, and in the statement that loose, broken rock, or wash, sand or gravel, float or
soil, is not sufficient. The accepted and universal theory in regard to the formation of
lodes like the one in controversy is that the crack, cavity or fissure, is first formed by
natural forces and subsequently filled with the mineral matter that constitutes the lode.
universal theory in regard to the formation of lodes like the one in controversy is that the
crack, cavity or fissure, is first formed by natural forces and subsequently filled with the
mineral matter that constitutes the lode.
X. The court erred in instructing the jury that under the admission and averment of
defendant the burden of proof rests upon the tunnel company to prove that the lode or deposit
so admitted to be within the limits of the Colorado mine has its apex outside of the exterior
lines of the Colorado mine, extended downward vertically. If appellant had admitted in its
answer that the ore had all been taken from within the limits of the Colorado, the instruction
might possibly have been correct. But the answer of appellant denies that appellant ever
entered into or upon the Colorado or any portion thereof and broke down, excavated or
removed from the said mining claim or any portion thereof any mineral-bearing rock or ore.
This cast the burden of proof upon the plaintiff to show that defendant had extracted and
removed ore from the Colorado.
Robert M. Clarke and R. M. Beatty, for Respondent.
I. The verdict being a general verdict, it covers every issue in the case, and being for
respondents, finds every material fact in respondent's favor. The ownership of the vein from
which the ore was extracted was a material issue. The jury, therefore, found upon this issue in
favor of respondents, and that the vein from which the ores were extracted was respondents'
vein. Since the vein is respondents' it is not material where it apexed.
II. It is of no consequence that appellant entered into and passed through the Colorado
mining claim more than ten years prior to the commencement of this action and has been in
the actual and exclusive possession of said tunnel, using the same across and through said
Colorado mining claim, during all of said period, and said defendant made the excavations
from said tunnel within the vertical side lines of said Colorado mining claim, extended
downward vertically, except those made by said defendants, Kitchen and Dunkle, more than
five years prior to the commencement of this action. These facts, if true, would not
constitute appellant the owner of the Colorado mine, or vein, or any part thereof, nor would
they justify or excuse the wrongs and trespasses complained of.
III. The evidence is ample to sustain the verdict. It is admitted by the pleadings that the
vein and excavations from which the ore came "are under and within the surface limits of
said Colorado mining claim extended downward vertically."
mitted by the pleadings that the vein and excavations from which the ore came are under and
within the surface limits of said Colorado mining claim extended downward vertically. The
proof without contradiction shows that the workings from which the ore came are all upon
one and the same vein.
IV. There is positively nothing to support the claim that the verdict is excessive.
Appellant's secretary testified that there was shipped during the time laid in the complaint
four hundred and ninety-five tons of ore, for which appellant received thirteen thousand nine
hundred and eighty-five dollars. Of this amount apellant [appellant] received its royalty and
its lessees the balance.
V. The court did not err in refusing to admit the notice of location of the Prospect
Mountain Tunnel. Appellant's ownership of the tunnel was not involved, indeed it was
distinctly admitted. The notice, as a tunnel site location, was incurably bad, and conferred no
lode rights. No tunnel site notice of location could vest in appellant the right to run its tunnel
into respondent's patented ground, or give appellant the right to mine upon veins found
therein. (Laws U.S. Sec. 2323; Wade's Am. Mining Law, 15.) A tunnel location creates no
right in the vein discovered, except the right to locate the vein included in a piece of public
mineral land. The vein when discovered must be located and the location must be made under
and in conformity with the mining laws, national, state and local. (Wade's Am. Mining Laws,
68; Corning Tunnel Co. v. Pell, 4 Colo. 507; Wade's Am. Mining Laws, 151-152; Laws U.S.
Secs. 2323, 2325, 2320, 2324; Copp's Mineral Lands, 2d ed. 35, 36, 90, 220, 221, 231, 232;
Sickels' Mining Laws, 24; Weeks' Mineral Lands, 417, 418; Hope Mg. Co. v. Brown, 28 Pac.
Rep. 732.)
VI. No testimony given by Wren supporting the good faith of appellant was stricken out.
On the contrary, all evidence offered and tending to prove defendant's good faith was
admitted.
VII. The definition given of a vein by the court in its instruction is correct, viewed either
from a scientific or legal standpoint.
By the Court, Bigelow, J. (after stating the facts as above):
One of the leading questions involved in this case is whether the answer admits the
plaintiffs' ownership of the Colorado mining claim.
the answer admits the plaintiffs' ownership of the Colorado mining claim. In their complaint
the plaintiffs allege that they are the owners and in the possession of that certain mine and
mining location and premises known as and called the Colorado mine. This the evidence
shows to be a parallelogram one thousand feet in length by two hundred feet in width, and we
shall construe the complaint as amounting to an allegation that they also own all beneath the
surface of such parallelogram, as the same may be extended downward indefinitely.
In answer to this the defendant admits the plaintiffs' ownership of the Colorado mining
claim as described in the complaint, except that portion hereinafter described. It then
alleges that the defendant is the owner of a certain tunnel, and that said tunnel in its course
enters into and under and crosses the said Colorado mining claim, and one of said veins or
lodes discovered in said tunnel, on the line thereof, about one thousand eight hundred and
fifty feet from the face thereof, having its top or apex outside of the exterior limits of said
Colorado mining claim, on its course downwards dips under and through said Colorado
mining claim, and certain excavations made upon said vein or lode last described are under
and within the surface limits of said Colorado mining claim extended downward vertically.
And defendant denis [denies] that plaintiffs are the owners of, or in the possession of, or
entitled to the possession of said tunnel, or any portion thereof, or of said vein, or any portion
thereof, or of the excavations thereon, or of any portion thereof. The defendant then attempts
to plead ownership of the portion above described, by virtue of five years' peaceable adverse
possession.
That this is a square and explicit denial of the plaintiffs' ownership of the portion of the
Colorado referred to is too clear for argument or question. If it is not, it may be safely said
that no language can be used that will constitute a denial of the ownership of a portion of a
mine, while at the same time admitting ownership of some other portion. It seems to us that
the only way in which a contrary construction can be placed upon the answer is by absolutely
shutting one's eyes to the language above quoted, and therefore we shall not pursue it further.
It may be remarked, too, that at the opening of the trial the plaintiffs did not see fit to rely
upon what they now claim to have been the very serious admission of the answer, but
introduced evidence to establish their titlea proceeding altogether unnecessary if title
was admittedand whereby the plaintiffs waived all objection to the sufficiency of the
denials.
have been the very serious admission of the answer, but introduced evidence to establish their
titlea proceeding altogether unnecessary if title was admittedand whereby the plaintiffs
waived all objection to the sufficiency of the denials. (Tynan v. Walker, 35 Cal. 645.) Under
these circumstances, it was error for the court to instruct the jury, as it did repeatedly both in
the plaintiffs' instructions and its own, that the plaintiffs' ownership of the Colorado was
admitted.
It is argued, however, that the proofs established the plaintiffs' ownership of the Colorado;
that this ownership was not contested upon the trial, and that consequently the error, if such it
were, was harmless to the defendant. At the opening of the trial the plaintiffs introduced in
evidence a patent from the United States for the Colorado mine, which was in no manner
attacked by the defendant, and it is claimed that this so indubitably established the plaintiffs'
title as to be equivalent to an admission of ownership in the pleadings. To properly
understand this contention it is necessary to add that the plaintiffs' theory of the issues in the
case, which seems to have been adopted by the court below, is that the answer had admitted
the plaintiffs' ownership of the Colorado, but set up an independent fact, to wit: that the ledge
in controversy apexed outside of the plaintiffs' ground, which, if established, would rebut the
effects of that admission and constitute a defense; but that as to this fact the burden of proof
was upon the defendant. Having concluded that the basis of this theorythe supposed
admissionis untrue, we shall not pause to consider it further than to determine whether the
proof of a patent to the mine would throw upon the defendant the burden of proving that the
ledge in controversy apexed outside the boundaries of the patented ground, which the court
instructed the jury was the effect of the supposed admission. If it would not, then, even to this
extent, it was not equivalent to such an admission.
A patent for a mining claim is quite a different thing from a patent for agricultural land.
The latter conveys the surface of the ground and all that lies beneath it. (Amador Medean
Gold Min. Co. v. South Spring Hill Gold Min. Co., 13 Sawy 523.) The former does not
necessarily do so. The patent in this case, which seems to be drawn in accordance with the
statutes, expressly provides that it is subject nevertheless to the following conditions and
stipulations: First, that the grant hereby made is restricted to the land hereinbefore
described as Lot No.
made is restricted to the land hereinbefore described as Lot No. 79, with one thousand linear
feet of the Colorado mine, vein, lode, ledge or deposit, for the length aforesaid throughout its
entire depth as aforesaid, together with all other veins, lodes, ledges or deposits throughout
their entire depth as aforesaid, the tops or apexes of which lie inside the exterior lines of said
survey. It follows that ledges which apex outside the boundaries of the land conveyed do not
belong to the patentees. (Montana Co. v. Clark, 42 Fed. Rep. 626; Mining Co. v. Cheesman,
116 U.S. 533; Reynolds v. Mining Co., 116 U.S. 687; Iron Silver Min. Co. v. Mike & Starr
Gold & Silver Min. Co. 143 U.S. 394.)
Doubtless, the production of a patent to the ground in which the ledge is found makes out
a prima facie case for the plaintiffs; that is, in the absence of any evidence tending to prove
that the ledge apexes outside of the exterior lines of the plaintiffs' patented ground, it would
be presumed to apex inside those lines. (Mining Co. v. Campbell, 17 Colo. 207; Cheesman v.
Shreve, 37 Fed. Rep. 36.) But when evidence is produced tending to show that the ledge
apexes outside those lines, this simply tends to prove that the plaintiffs, notwithstanding their
patent, do not own that ledge, and they must now meet this evidence and overcome it, or they
will fail in establishing their title. As the plaintiffs' ownership is denied, the burden of
proving it is all along upon them. If the ownership depends upon whether the ledge apexes
inside the exterior lines of the mine, then this fact, the same as any other fact upon which title
depends, must be established by the party asserting it. The plaintiffs must recover upon the
strength of their own title; if they do not own the ledge from which the ore was extracted, it
matters not who does own it. (Reynolds v. Mining Co., supra.) Evidence showing that the
ledge apexes outside the plaintiffs' ground is not offered to establish a fact by way of
confession and avoidance of the plaintiffs' case, as to which the burden would be upon the
defendant, but to show that they never had any case, because they never owned that ledge.
The burden of showing ownership being placed by the pleadings upon the plaintiffs, it never
shifts to the defendant, except in the limited sense already spoken of. This is a universal rule,
applicable to all cases and one that is supported by both reason and the great weight of
authority. The distinction between the two burdens is clearly pointed out in Scott v. Wood,
where it is said: "The term 'burden of proof' is used in different senses.
between the two burdens is clearly pointed out in Scott v. Wood, where it is said: The term
burden of proof' is used in different senses. Sometimes it is used to signify the burden of
making or meeting a prima facie case, and sometimes the burden of producing a
preponderance of evidence. * * * The two burdens are distinct things. One may shift back and
forth with the ebb and flow of the testimony. The other remains with the party upon whom it
is cast by the pleadings, that is to say, with the party who has the affirmative of the issue. (81
Cal. 398, 400.)
In Heinemann v. Heard, the court of appeals of New York said: During the progress of a
trial it often happens that a party gives evidence tending to establish his allegation, sufficient
it may be to establish it prima facie, and it is sometimes said the burden of proof is then
shifted. All that is meant by this is, that there is a necessity of evidence to answer the prima
facie case, or it will prevail, but the burden of maintaining the affirmative of the issue
involved in the action is upon the party alleging the fact which constitutes the issue, and this
burden remains throughout the trial. (62 N. Y. 448, 455.)
In Heilman v. Lazarus, it was again said: The issue as to which the burden of proof was
on the plaintiff was that of title, of right of possession of the land, and that burden remained
with him to the end. (90 N. Y. 672, 673.)
In Clark v. Hills, an instructive case, the court uses this language: Much less does the fact
that a defendant is forced to maintain the affirmative of some fact, in disproving the plaintiffs'
case, shift upon him the burden of proof. Hence the onus probandi in this case was not
affected by the fact that, in showing the land to have been vacant at the date of the plaintiffs'
location, he had to prove that it was not within the lines of the Ponce grant, and that the
defendant met the issue by proof that it was embraced within the lines of that grant. That a
party does not shift to his adversary the burden of proof by making out a prima facie case is
clear from what we have said, and is a well settled principle. His case must be disproved; but
when proof having this tendency is produced, it then becomes a question whether upon the
whole evidence the prima facie case has been successfully met by the adverse party. If it
appears that the preponderance of testimony is not in favor of the party having the onus, the
verdict should be against him.
If the testimony is evenly balanced, he has failed to establish the issue, but has left it doubtful
whether he has sustained it or not, and that doubt must inure to the benefit of his adversary.
(67 Tex. 141, 149.) And so are other cases. (Lamb v. Railroad Co., 46 N. Y. 271; Blunt v.
Barrett, 124 N. Y. 119; Claflin v. Meyer, 75 N. Y. 260; Willett v. Rich, 142 Mass. 357;
Nichols v. Munsel, 115 Mass. 567; Wilder v. Cowles, 100 Mass. 490; Tarbox v. Steamboat
Co., 50 Me. 345; Small v. Clewley, 62 Me. 157; Insurance Co. v. Schwing, 87 Ky. 410;
Powers v. Russell, 13 Pick. 76; Shepardson v. Perkins, 60 N. H. 77; Blodgett v. Cummings,
Id. 116; Wall v. Hill's Heirs, 1 B. Mon. 290; Atkinson v. Transportation Co., 69 Wis. 5; Bank
v. Seymour, 64 Mich. 72; Bank v. Doyle, 9 R. I. 78; Blanchard v. Young, 11 Cush. 345.)
We have been cited to the case of Bell v. Skillicorn, 28 Pac. Rep. 768, as sustaining a
contrary view; but with all due respect to the court rendering that decision, we must decline to
follow it. It is in conflict with the almost unanimous conclusions of other courts, and in our
judgment is not supported by any of the authorities there cited, except the case of Cheesman
v. Hart, 42 Fed. Rep. 98, decided by a single judge. If we were permitted to make the
suggestion, we would say that the error in Bell v. Skillicorn arises from assuming that the
issue in the case was upon the defendant's ownership, whereas, as we have endeavored to
show, it is entirely immaterial whether the defendant has any title whatever if the ledge does
not belong to the plaintiff; and that it does not belong to him, unless it apexes inside his
boundaries.
We are therefore of the opinion that the instructions that the defendant had admitted the
plaintiff's title to the Colorado were not only erroneous but prejudicial to the defense.
It follows also, from what has been said, that the ruling that the burden of proving that the
ledge apexed outside of the plaintiffs' boundaries was upon the defendant was also error. As
here used, the phrase burden of proof meant the preponderance of the evidence and must
have been so understood by the jury, and in that sense it was erroneous. Upon this point
defendant's instruction No. 3 stated the law correctly, and should have been given.
The jury were also instructed that the answer admitted that the ore extracted and in
question, had been taken by the defendant from a lode which at the point of entry was within
the exterior lines of the Colorado.
exterior lines of the Colorado. It is perhaps sufficient to say that the answer contains no
admission that the defendant had extracted or taken ore from any place whatever, nor that the
point of entry to the lode, whatever that may mean, was within the plaintiffs' boundaries.
We are also of the opinion that the definition of what constitutes a lode was erroneous, and
while in many cases the error might be harmless, it was, under the circumstances existing
here, prejudicial to the defendant. A certain formation, which the defendant claimed to be the
ledge, had been traced upward, outside the plaintiffs' boundaries, and a large amount of work
there done upon it. If this was the ledge, as the defendant claimed, it tended to show that its
apex was outside those boundaries. According to the witnesses, it consisted of broken
limestone, boulders, low-grade ore, gravel and sand, which appeared to have been subjected
to the action of water. This was found at a depth of several hundred feet, and where there
seems to have been no question that it was within the original and unbroken mass of the
mountain. So far as was shown, the rock on either side was fixed, solid and immovable.
Mineral matter so situated, no matter where it was originally formed or deposited, is in
place within the meaning of the law. The manner in which mineral was deposited in the
places where it is found is, at the best, but little more than a matter of mere speculation, and
to attempt to draw a distinction based upon the mode or manner or time of its deposit would
be utterly impracticable and useless. The question was long ago settled by the courts. In
Stevens v. Williams, 1 Morr. Min. R. 557, Hallett, J., said: And, when this act speaks of
veins or lodes in place, it means such as lie in a fixed position in the general mass of country
rock, or in the general mass of the mountain. As distinguished from the country rock, this
superficial deposit may have been brought into its present position by the elements; may have
been washed down from above, or may have come there as aluvium or diluvium, from a
considerable distance. Now whenever we find a vein or lode in this general mass of country
rock, we may be permitted to say that it is in place, as distinguished from the superficial
deposit, and that is true whatever the character of the deposit may be. * * * It is in place if it
is held in the embrace, is inclosed by the general mass of the country.
Upon the second trial of the same case (Id. 569), Justice Miller said: And there I want to
say that by rock in place I do not mean merely hard rock, merely quartz rock, but any
combination of rock, broken up, mixed up with minerals and other things, is rock, within the
meaning of the statute. And again, in Mining Co. v. Cheesman, 116 U.S. 529, 537, the court
said: Excluding the waste, slide or debris on the surface of the mountain, all things in the
mass of the mountain are in place. (See also, the same case in the circuit court, 2 McCrary,
191; Hyman v. Wheeler, 29 Fed. Rep. 353; Cheesman v. Shreeve, 40 Fed. Rep. 787.)
Other errors have been assigned upon the instructions, and in some respects they are open
to the criticisms, but as they are concerning matters that will, in the light of this decision, be
readily perceived and corrected upon another trial, we do not notice them further.
The ruling striking out Mr. Wren's testimony seems to have been correct, but the notice of
the tunnel location was admissible in evidence for one purpose, at least. The defendant
claimed ownership of the tunnel by virtue of adverse possession. Possession alone for the
term of the statute is not sufficient to divest the title of the true owner; it must be possession
under claim of a title in hostility to that owner. (McDonald v. Fox, 20 Nev. 364.) This claim
of exclusive and hostile ownership the notice tended to establish, without regard to whether it
was sufficient under the mining statute, and it should therefore have been admitted.
Judgment and order refusing a new trial reversed, and cause remanded.
____________
21 Nev. 353, 353 (1893)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JANUARY TERM, 1893.
____________
Volume 21
____________
21 Nev. 353, 353 (1893) Simpson v. Harris
[No. 1366.]
D. C. SIMPSON, Appellant, v. A. E. HARRIS, THE LANGLEY & MICHAELS
COMPANY, A CORPORATION, and W. H. CHEDIC, INTERVENER, Respondents.
GiftEvidence Insufficient to Establish.Defendant H. purchased of the intervener his stock of goods, gave his
note and a chattel mortgage in part payment, and paid four thousand dollars, by a check of plaintiff, his
father-in-law. Subsequently plaintiff also took a chattel mortgage on the stock, to secure payment of the
four thousand dollars, and it was filed for record before intervener's mortgage. In plaintiff's action to
foreclose his mortgage, the intervener claimed that his delay in recording his mortgage was occasioned by
plaintiff' representations to him that he had advanced the money to defendant H. as a gift, and the request of
plaintiff to intervener not to record his mortgage because it would injure defendant H.'s credit, and the
further representation of plaintiff that the advancement was a family matter, and that defendant H. would
not have to re-pay it. Another witness testified that plaintiff told him that he had advanced four thousand
dollars for defendant H., and he would have time to work the debt out. On the other hand, it was shown that
at the time defendant H. took the check, he gave plaintiff his note for four thousand dollars, and shortly
afterwards he had the stock insured, making the loss, if any, payable to plaintiff.
Held, that the evidence was insufficient to establish a gift of the four thousand dollars from plaintiff to
defendant H.
Statute of FraudsPromise to Pay Debt of AnotherA promise by plaintiff to intervener to take up the debt due
him from defendant, if intervener would not record his mortgage, was void under the statute of frauds, there
being no evidence of the promise in writing, and it also appearing that the intervener did not, in
consideration of the promise, release any of his security against defendant, but continued to press him for
payment.
Chattel MortgageFailure to RecordActual Notice.Under Stat. of 1887, p. 66, providing that no chattel
mortgage shall be valid, except as to the parties thereto, unless the mortgagee takes possession of the
mortgaged property, or the mortgage be recorded, an unrecorded mortgage, where there is no delivery of
the property, is void as to all creditors of the mortgageor, even though they have actual notice of the
existence of such mortgage.
Agreement to Execute MortgageEquitable Estoppel.Plaintiff read the agreement between defendant and
intervener for the sale of the property, and he drew his check for four thousand dollars, to be paid on the
consummation of the agreement, which was that defendant was to deposit the four thousand dollars in bank
as a guaranty of good faith, to be applied on the purchase price of the stock, on the completion of the
inventory, and that defendant should give his notes, secured by a valid mortgage on the stock, for the
remainder of the purchase price. Held, that plaintiff participated in the agreement to such an extent that he
must have known that the mortgage to intervener was to be the prior lien on the stock, and that he was
estopped from asserting his subsequent mortgage as a prior lien, though it was first recorded.
Delay in RecordingCreditor's Rights.As plaintiff waited several months after the consummation of the
agreement before he had his mortgage executed and recorded, and in the meantime others had given
defendant credit for goodsa credit to which he was not entitled, and would not have obtained but for the
negligence of plaintiff, which amounted to a violation of a legal dutythe mortgage of such creditors will
be preferred to plaintiff's, though it was subsequently executed and recorded.
Trial of Equity CasesSubmission of Special IssuesEffect of General Verdict.Only special issues should
be submitted to a jury in an equity case and a general verdict alone in such a case is improper, but when a
party to such an action makes no objection to a general verdict and does not ask the court to supply omitted
findings, every material fact necessary to support it will be presumed to have been found in the general
verdict. (Concurring opinion of Bigelow, J.)
Sardis Summerfield and W. E. F. Deal, for Appellant.
I. It was clearly error on the part of the court below to subordinate the lien of appellant to
that of the Langley & Michaels Company as to the property embraced in appellant's
mortgage.
II. Appellant's mortgage was not only recorded before intervener's, but appellant had taken
possession of the mortgaged property and had brought action to foreclose his mortgage before
intervener filed his mortgage for record. Intervener's mortgage was void as to appellant until
recorded, even though appellant had actual notice of it. (Stat. of Nev. 1887, p. 66; Gassner v.
Patterson, 23 Cal. 299; Harms v. Silva, 91 Cal. 636; Chenyworth v. Daly, 7 Ind. 284;
Lockwood v. Slevin, 26 Ind. 124; Kennedy v. Shaw, 38 Ind. 474; Ross v. Menefee, 25 N. E.
Rep. 545; McDowell v. Stewart, 83 Ill. 539; Bevans v. Bolton, 31 Mo. 437; Travis v. Bishop,
13 Met. 304; Rich v. Roberts, 48 Me. 550; Milburn Manf. Co. v. Johnson, 24 Pac. Rep. 17.)
III. The court erred in admitting evidence tending to prove declarations of appellant to the
effect that he would pay the debt owing from defendant Harris to intervener. Such evidence
was mere hearsay. Its admission was in direct contravention of the statute of frauds. (Gen.
Stat. Sec. 2630.) The testimony all shows that intervener did not rely on any promise of
appellant to pay the debt of defendant Harris but that he continued to press Harris for
payment of the debt. In an action at law against appellant upon the promises testified to by
intervener and his witnesses, intervener would have been non-suited, as he should have been
in this case. (Mallory v. Gillette, 21 N. Y. 412.)
Robert M. Clarke, for Intervener and Respondent.
I. The mortgage from defendant Harris to intervener, as between them, vested the legal
title to the property mortgaged in the intervener. (3 Nev. 313; 14 Cal. 85; 35 Cal. 404; 63 Cal.
550.)
II. As between intervenor and defendant Harris, it was not necessary to record the
mortgage. It was valid without record. This being true, it follows that recording the mortgage
could have no other effect than imparting notice. The language of the act concerning
conveyances, against any other person than the parties thereto, was intended to meet the
decision of Clute v. Steele, and to bring general creditors within the provisions of the
statute.
Clute v. Steele, and to bring general creditors within the provisions of the statute.
III. Counsel for appellant mistake the issue. It is not concerning the validity of intervener's
mortgage, but concerning the validity of appellant's mortgage. The jury said that appellant's
mortgage was given and received to defraud intervener.
IV. The general principles laid down in the books with reference to fraud are inapplicable
to this case, as are also decisions upon statutes relating to the conveyance of land. The chattel
mortgage act alone must control this case. (Herman on Chattel Mortgages, 75; Gassner v.
Patterson, 23 Cal. 299; Jones on Chattel Mortgages, Sec. 314.)
IV. The facts and circumstances in evidence establish a clear case of actual fraud. It is
established with us, both in law and equity, that our recording acts only apply in favor of
parties who have acted in good faith, and cannot be made the means of fraud and oppression.
It is therefore held in this country in general, that a conveyance duly registered passes no title
whatever when taken with a knowledge of the existence of a prior unregistered conveyance.
(2 Lead. Cases in Eq. 183; 9 Johnson 163; 19 Wend. 339; 4 Mass. 637; 1 Brevard 331; 8 B.
Monroe 442; 4 Me. 20; 4 Scammon 117; 15 Ill. 542; 1 Dev. Eq. 110; 28 Me. 255; 11 Forter
332; 25 Ala. 272; 2 Cal. 203; 2 Iowa 420; 16 Am. & Eng. Ency. 828, 829 and note 2; 7 Cal.
450; 21 Cal. 167; 22 Cal. 143, 200; 34 Cal. 563, 612; 36 Cal. 390; 49 Cal. 124; 63 Cal. 564;
91 Cal. 639, 640; 32 N. J. Eq. 652; 11 Nev. 431; 124 N. Y. 376; 126 N. Y. 187; 127 N. Y. 53;
Read v. Horner, 51 N. W. Rep. 207.)
V. It is agreed in the contract of sale that intervener's demand for the balance of the
purchase money should be secured by a valid chattel mortgage upon the stock of goods and
fixtures. Appellant had knowledge of this agreement, dictated its terms, advanced his money
in pursuance of it and agreed that intervener should have the very security of which he now
seeks to deprive him. Appellant having assented to the contract of sale is bound by it.
J. D. Torreyson, for Langley & Michaels Company, Respondent.
I. The court did not err in preferring the mortgage of Langley & Michaels Company to
that of appellant notwithstanding the pleadings.
the pleadings. Had the court done otherwise the mortgage of Langley & Michaels Company
would have been subordinated to that of intervener, which was never intended and which
intervener does not claim. (Sayre v. Howes, 32 N. J. Eq. 659; Clement v. Kaighn, 2 McCart.
47; Jones on Chattel Mortgages, Sec. 318.)
By the Court, Murphy, C. J.:
This is an action commenced by D. C. Simpson, in the district court of Ormsby county, to
foreclose a chattel mortgage, made, executed and delivered to him by A. E. Harris. The
Langley & Michaels Company was made a party defendant, it claiming an interest in the
property as subsequent mortgagees to Simpson. Walter H. Chedic, by leave of the court first
had, filed his complaint of intervention. A. E. Harris failing to answer, his default was duly
entered. D. C. Simpson answered the complaint of intervention. We glean from the record the
following facts:
On the 12th day of May, 1891, Walter H. Chedic was engaged in the drug business in
Carson City, Nevada; on that day he entered into an agreement with A. E. Harris to sell the
stock of goods at wholesale catalogue price, freight added, the actual cost of fixtures in the
store occupied by him, and five hundred dollars to be paid for the good will of the business.
The goods were invoiced, and on the 4th day of June, 1891, the sale and delivery of the
personal property were completed by delivering possession of the same to A. E. Harris; he
paying therefor eight thousand three hundred and sixty-three dollars and fifty cents, of which
sum Harris paid four thousand dollars in cash, and gave his note for the sum of four thousand
three hundred and sixty three dollars and fifty cents, payable in installments of three hundred
dollars each, with interest at the rate of ten per cent. per annum; the first payment to be made
on the 4th of September, 1891, and each subsequent payment should become due at intervals
of three months apart from the said 4th day of September; and, to secure the payment of this
note, A. E. Harris made, executed and delivered to Walter H. Chedic a mortgage on the
merchandise then in the store and store room. This mortgage was not recorded until the 3d
day of February, 1892.
On the 12th day of May, 1891, D. C. Simpson drew his check in favor of A. E. Harris for
the sum of four thousand dollars, to make the first payment on the goods, when the
invoice should be completed and the agreement closed, which said sum of money was
paid to Chedic on the 4th day of June, when the property was placed in Harris' possession.
in favor of A. E. Harris for the sum of four thousand dollars, to make the first payment on the
goods, when the invoice should be completed and the agreement closed, which said sum of
money was paid to Chedic on the 4th day of June, when the property was placed in Harris'
possession. At the time that Simpson drew his check, Harris made, executed and delivered to
Simpson his promissory note for the sum of four thousand dollars, payable one day after date,
with interest thereon at the rate of ten per cent. per annum. On the 14th day of November,
1891, Harris, not having paid the amount due Simpson, gave him a new note for the said sum
of four thousand dollars, and to secure the payment thereof made, executed and delivered to
Simpson a mortgage on all the goods and personal property in the store, which mortgage was
recorded on the day of its execution.
On the 25th day of January, 1892, A. E. Harris, being indebted to the Langley & Michaels
Company for goods, wares and merchandise sold and delivered to him after he had taken
possession of the store, made, executed and delivered to said company his promissory note
for the sum of seven hundred and ninety-one dollars and nineteen cents, and to secure the
payment of the said note gave a mortgage on the stock of goods then in the store. This
mortgage was filed for record on the date of its execution. On the 2d day of February, 1892,
Harris not having paid the Simpson note, Simpson demanded of and received possession
from A. E. Harris of all the personal property then in the store, and on the same day
commenced this action to foreclose his mortgage.
The cause was tried by the court with a jury on the complaint of Simpson, who made the
Langley & Michaels Company a party defendant, it claiming to have an interest in and claim
upon the mortgaged property, subordinate and subsequent to the mortgage lien of plaintiff
Simpson.
The Langley & Michaels Company answered this complaint, setting out its note and
mortgage from Harris to it, and admitting that its mortgage lien, claim and interest was and is
a junior lien and subordinate to the mortgage lien of plaintiff Simpson, upon the property
described in Simpson's mortgage, but claimed that the mortgage lien of Chedic was and is
subsequent and subordinate to the mortgage lien of plaintiff Simpson, and of the defendant
the Langley & Michaels Company. Walter H.
ter H. Chedic, by leave of the court first had and received, filed his complaint of intervention,
claiming a prior lien on all the property as against Simpson, or the Langley & Michaels
Company mortgage.
In the complaint of intervener, Chedic, he alleges, upon information and belief, that the
note as set out in Simpson's complaint was not made until the 14th day of November, 1891.
Chedic also alleges that after his mortgage was made, acknowledged, sworn to and delivered,
and after the payment to him of the sum of four thousand dollars on account of the purchase
of said personal property, and said Chedic well knowing that unless said chattel mortgage was
recorded in the office of the recorder of the county where said personal property was situated,
and in the county where said mortgageor resided, the same would be invalid as to all persons
except the parties thereto intended, and was proceeding to have the same recorded; and the
said D. C. Simpson requested and prevailed upon said Chedic not to record the same, and
requested and induced the said Chedic to withhold the same from the record of said county,
declaring, among other things, that the purchase of said personal property and advancing and
payment of the sum of four thousand dollars was a family matter, and that Harris would not
be called upon or required to secure or pay the sum of four thousand dollars, or any part
thereof, and that the whole of said property would be and remain the property of said Harris
and security of said indebtedness of four thousand three hundred and sixty-three dollars and
fifty cents, the balance of said purchase money. And said Chedic alleges that, relying upon
the statements, declarations, promises and assurances of the said plaintiff Simpson, and at the
instance and request of said Simpson, the said Chedic withheld said mortgage from record,
and did not record the same until the 3d day of February, 1892. Simpson answered this
complaint and denied every allegation thereof charging deceit, collusion or fraud on his part.
The jury returned a general verdict in favor of intervener Chedic, upon which the court
rendered its findings as follows:
First: That the mortgage of Langley & Michaels Company was a valid lien upon the
goods, drugs and personal property described therein, and as to all of said property was a
prior and superior lien to the lien of intervener Chedic, and to all of said property not
described in the mortgage of D. C. Simpson, was prior and superior to the mortgage of the
said Simpson.
said property not described in the mortgage of D. C. Simpson, was prior and superior to the
mortgage of the said Simpson.
Second: That the mortgage of W. H. Chedic was a good and valid mortgage as against A.
E. Harris, from the date of its execution and delivery thereof, and as against all persons from
the date of the record thereof, to-wit: the 3d day of February, 1892, and under and in
conformity with the verdict of the jury in this action, was and is a valid and subsisting lien
upon the goods, drugs and personal property described therein, as against the said D. C.
Simpson, and as against said plaintiff D. C. Simpson is a prior and superior lien to the
mortgage and lien of said D. C. Simpson, but is subordinate to the mortgage of said Langley
& Michaels Company.
Third: That the mortgage of D. C. Simpson is a valid lien as against A. E. Harris upon the
goods described therein, but upon the verdict of the jury is subordinate to the lien of the said
intervener, W. H. Chedic, and to the mortgage lien of Langley & Michaels Company.
The court ordered the property to be sold by the sheriff, and the proceeds of such sale to be
applied as follows: (1) Payment of all costs and expenses of the sale; (2) payment of the
Langley & Michaels Company claim; (3) payment of the Walter H. Chedic demand; (4)
payment of Simpson's claim.
The appeal is taken from the judgment and order of the court denying plaintiff Simpson's
motion for a new trial, and the errors assigned are as follows: (1) That the evidence is
insufficient to justify the verdict, judgment or decree; (2) said verdict, judgment and decree
are against law; (3) errors of law occurring at the trial and excepted to by plaintiff Simpson.
In the complaint of intervener Chedic, it is alleged, and upon the trial it was sought to be
established, that the four thousand dollars advanced by Simpson to A. E. Harris on the 12th
day of May, 1891, was a matter of favor, or in other words, a gift, and not a loan.
In support of this position, Chedic testified that Harris was Simpson's son-in-law. In a
conversation he had with Simpson, Simpson said: Harris being a young man, it would
impair his credit to have the mortgage recorded against him, and he (Simpson) said that I had
the only mortgage against the store, and the money he had put up for Harris was a family
matter, and that Harris would not have to pay him back, and if he did pay him it was all
right, and if he did not pay it was all right." Dr. Guion testified that he had a conversation
with Simpson, in which Simpson said that he had put up or advanced the sum of four
thousand dollars for Harris to purchase the business, and Harris would have time to work
the debt out.
if he did pay him it was all right, and if he did not pay it was all right. Dr. Guion testified
that he had a conversation with Simpson, in which Simpson said that he had put up or
advanced the sum of four thousand dollars for Harris to purchase the business, and Harris
would have time to work the debt out. Simpson in his answer denies that the money was a
gift. In his testimony he denies that it was advanced as a matter of favor or a gift, but that it
was a loan to Harris, and Harris was to repay the same. Harris testified that the money
advanced by Simpson was a loan, and they both testified that the day that Simpson drew his
check for the sum of four thousand dollars, Harris made, executed and delivered to Simpson
his promissory note for the amount of money, payable one day after date; and that note was
introduced in evidence without objection.
The circumstances surrounding this transaction do not indicate to our minds that the
money advanced by Simpson was intended as a gift. Harris testifies that, after his first talk
with Chedic in relation to purchasing the property, he went to Dayton to get the money from
Mr. Gignoux. Gignoux informed him that he could not let him have the money for a month.
Harris then saw Simpson about indorsing his note to Gignoux, offering to give Simpson a
mortgage on the stock of goods to protect him against loss. Simpson refused, giving as his
reason for such refusal that he would not indorse for any one, but told Harris to wait until he
came to town and if he had the money in bank he would loan it to him. Harris also testified
that it was the understanding between Simpson and himself on the 12th day of May, 1891, at
the time of the drawing of the check and the giving of the note, that Simpson should have a
mortgage on the stock of goods to secure the payment of the four thousand dollar note. On the
5th day of June, 1891, the property was insured for the sum of five thousand dollars against
fire, loss, if any, payable to D. C. Simpson. In our opinion the testimony introduced on the
part of the intervener is not sufficient in law or equity to establish a gift of money. Such
evidence should be clear and unmistakable of the intent to give.
In Ide v. Pierce, 134 Mass. 264, the court said: Future interests in money, if they can be
established by oral testimony, must be established by clear and satisfactory testimony.
Simpson's conduct and dealing with the subject-matter all go irresistibly to show that he did
not intend the advancement as a gift.
irresistibly to show that he did not intend the advancement as a gift. A gift is the voluntary
transfer of money or property by one to another, without any consideration or compensation
therefor. To make a gift inter vivos valid, the transfer must be executed; for the reason that,
there being no consideration therefor, it falls under the ban of the statute of frauds, and no
action will lie to enforce it. To consummate a gift there must be such a delivery by the donor
to the donee as places the property under the dominion and control of the donee, with the
intent and purpose on the part of the donor to transfer the title absolutely, never reclaiming or
expecting repayment of the thing transferred. Was there such a transfer of the money by
Simpson to Harris, or what was equivalent thereto? We think not. If such was Simpson's
intention, he would not have taken the note on the 12th day of May, 1891, when he drew his
check in favor of Harris for the four thousand dollars, nor would he have required the policy
of insurance to read, Loss, if any, payable to D. C. Simpson; and each of these transactions
had taken place long before this litigation could have been thought of.
In the case of Johnson v. Spies, 5 Hun. 471, it is said: A gift by words, without a delivery
or something equivalent thereto will not suffice, according to the loosest statement of the rule
of law upon this subject.
In Zimmerman v. Steeper, 75 Pa. St. 149, the judge said: To determine the validity of a
gift, its subject-matter must be considered. If capable of delivery, it must be actually or
constructively delivered. If it be not, then it is still executory, and being without
consideration, is bad either as a gift inter vivos or a donatio causa mortis. The gift of a bond,
note or any other chattel, therefore, cannot be made by words in futuro, or by words in
praesenti, unaccompanied by such delivery of possession as makes the disposal of the thing
irrevocable. (Morse v. Low, 44 Vt. 564; Williams v. Forbes, 114 Ill. 167; 2 Kent Comm.
438; Taylor v. Henry, 48 Md. 557; Northrop v. Hale, 73 Me. 68; Robinson v. Ring, 72 Me.
144; Taylor v. Fire Department, 1 Edw. Ch. 296; Rockwood v. Wiggin, 16 Gray, 402.) A
transfer by gift contemplates a transfer of the entire ownership, both legal and equitable. Any
reservation of a right of control or dominion will therefore defeat the operation of the
intended gift. (Young v. Young, 80 N. Y. 430; Curry v. Powers.
70 N. Y. 214.) The intent to give is a necessary element of the transaction. Delivery without
intent to vest the title in the donee could pass no title to him. (Jackson v. Railway Co., 88 N.
Y. 524; Beaver v. Beaver, 117 N. Y. 421; Id., 16 N. Y. Supp. 746; Bish. Cont. Sec. 434; 1
Pars. Cont. 234; Ide v. Pierce, 134 Mass. 260; Nutt v. Morse, 142 Mass. 3; Hayden v.
Hayden, 142 Mass. 448; Thompson v. Dorsey, 4 Md. Ch. 149; Brewer v. Harvy, 72 N. C.
177; Shoonmaker v. Plummer, 29 N. E. Rep. 1114; Justice v. Justice's Ex'rs., 18 Atl. Rep.
674; Seminary v. Robbins, 27 N. E. Rep 341.) A debt is not extinguished by a mere statement
by the creditor that he does not intend to enforce it, or that he forgives it, or even by a receipt
for the whole, when in fact a part only has been paid. (Irwin v. Johnson, 36 N. J. Eq. 348;
Snowden v. Reid, 10 Atl. Rep. 175; Flanders v. Blandy, 12 N. E. Rep. 321.)
In the case at bar there is no evidence in the record which would warrant the jury in
finding that the money advanced by Simpson to Harris was a gift. There is no evidence that
Simpson ever told Harris, nor any one else, that the money was a gift, and so long as Simpson
held Harris' note in his possession, it would negative the gift theory. The finding of the court
in which it recites that there is due and owing from A. E. Harris to D. C. Simpson the sum of
four thousand dollars, principal debt, and three hundred and sixty-six dollars and sixty-six
cents interest, shows conclusively that the court did not adopt the verdict of the jury on the
gift theory; for if the court had so found, it would have decreed that Harris was not indebted
to Simpson in any sum of money whatever upon the note, on the ground that a gift is attended
with delivery and possession, and takes effect immediately. It is then a gift executed and can
not be retracted. Therefore, there being no delivery of the note to Harris, he could not in an
action as between himself and Simpson claim the money advanced to be a gift under the facts
of this case, and the contention of the intervener can not be maintained either at law or in
equity. (Daniel v. Smith, 30 Pac. Rep. 575.)
It is alleged in the complaint of intervention that the Simpson note and mortgage were
made, executed and delivered by Harris, and received by Simpson, to hinder, delay and
defraud the creditors of A. E. Harris, and to hinder, delay and defraud the intervener Walter
H. Chedic; and in support of this charge Chedic testified as follows: That Simpson
participated in the making of the agreement with Harris and himself on the 12th day of
May, 1S91.
Chedic testified as follows: That Simpson participated in the making of the agreement with
Harris and himself on the 12th day of May, 1891. That on the 4th day of June, 1891, after
Chedic had received Harris' note and mortgage, Harris went across the street to Rail's store, as
he said he was going, and when I came out of the bank I met Harris, and he said to me:
Before you record that mortgage, Mr. Simpson would like to see you. The mortgage was in
my hand at the time. I was on my way to the recorder's office to have it recorded. It was
several days after I got the mortgage. I don't know how many after. I waited and waited to see
Simpson, and he finally met me; and he said he would rather I would not record that
mortgage, because if I did it would handicap Mr. Harris in business, and if I did not record it
he said he would take it up himself; and I said I would see about it. I went and saw mother
about it, and it was all right; and I went right back and met Mr. Simpson and told him that if
he would take it up I wouldn't record it; and it went on in that way for some time. Simpson
said that Harris being a young man it would impair his credit to have the mortgage recorded
against him, and he (Simpson) said that I had the only mortgage against the store, and the
money he had put up for Harris was a family matter, and that Harris wouldn't have to pay him
back, and if he did pay him it was all right, and if he didn't pay it was all right. This is what
influenced me not to put my mortgage on record. In the month of October, 1891, I met
Simpson coming up the street, and asked him if it was not about time for him to take up that
mortgage, and he said: Yes, I will in a short time. He said: Wait a short time, and I will take it
up. I told him I would record the mortgage if he didn't take it up soon. I did not see Simpson
again after October, until after this suit was commenced in February, 1892.
Tracey Chedic testified that he had overheard the conversation between his brother and
Simpson in October, 1891, in which his brother asked Simpson about that money that was
due. Simpson said that it would be all right, he would pay it in a few days. Brother said: If
you don't pay in a few days I will put it on record. And Simpson said: Don't put it on record,
for the money will be paid in a few days.
Owen Jones testified that he overheard the conversation in October, 1891, in which Chedic
asked Simpson if he was not going to take up that mortgage; and Chedic said: If you don't
I will place it on record.
going to take up that mortgage; and Chedic said: If you don't I will place it on record. And
Simpson replied: I will take it up soon.
Simpson, by his testimony, denies that he ever asked or requested Chedic not to record his
mortgage. He denies that he ever promised Chedic to take up the Harris note and mortgage.
He admits that Chedic did at one time ask him to take it up, but he inferred from Chedic's
conversation that he wanted to discount it to him.
Harris in his testimony denies that he ever requested Chedic not to record his mortgage
until Simpson saw him.
The evidence is very conflicting, and it is well settled that the appellate court will not
substitute its own judgment for that of the jury as to a matter of fact dependent upon
conflicting evidence, unless where, upon the whole record, it should appear that the jury acted
so unreasonably in weighing the testimony as to justify a strong presumption that their minds
were swayed by passion or prejudice, or that they were governed by some motive, the
inferences of which could not be drawn from the testimony; and section 2641, Gen. Stat.,
provides that the question of fraudulent intent, in all cases arising under the provisions of this
act, shall be deemed a question of fact and not of law. Therefore, under the above section, and
the decided cases by this court, if there is any testimony in the record which tends to support
the verdict of the jury, the same must be sustained.
Is Simpson's alleged promise or agreement to take up the note and mortgage given by
Harris to intervener Chedic, as testified to by Chedic and the witnesses, within the statute of
frauds? It is provided in section 2630, Gen. Stat., Nevada: In the following cases, every
agreement shall be void, unless such agreement, or some note or memorandum thereof,
expressing the consideration, be in writing and subscribed by the parties charged therewith. *
* * Second. Every special promise to answer for the debt, default, or miscarriage of another.
It is evident that the promise or agreement of Simpson, if he ever made such, is within the
letter of the statute; and the authorities are uniform that the promise to pay the debt of another
cannot be enforced unless it be in writing, and when so reduced to writing it becomes of itself
a distinct contract and must rest upon its own consideration.
and must rest upon its own consideration. Courts have in the interest of equity and fair
dealings so construed statutes similar to the above as to hold that many cases which were
apparently within the letter of the law were in fact without the statute and not controlled by
the requirements thereof, such as a promise to pay the debt of another is not within the statute
if its consideration was the abandonment to the promisor of a security for the payment of the
debt, consisting of a lien upon or interest in property to which the promisor then had a
subordinate title or lien. (Throop, Verb. Arg. Sec. 592 et seq.; Wills v. Brown, 118 Mass. 138;
Spooner v. Dunn, 7 Ind. 81; Power v. Rankin, 114 Ill. 54.) But the above rule cannot be
invoked in Chedic's behalf, because, from his own testimony, he collected the September
payment from Harris, and was urging him to make the December payment, and by so doing
manifested a design not to rely upon Simpson's promise to pay the Harris note. Whether a
promise comes within the statute does not depend so much upon the consideration of the
promise, but upon the fact as to whether the original party remained liable. Therefore, if
Simpson made the alleged promise, and Chedic wished to rely upon it, and did not seek to
enforce his claim as against Harris, it would be regarded in law as an original promise and a
distinct contract, and would be enforceable as against Simpson; but not having released
Harris, nor surrendered his lien to Simpson, he cannot enforce the same as against Simpson.
Under our statute, is a mortgage of personal property, not recorded, valid as against
creditors who had knowledge of the existence of the mortgage and the transactions that led up
to the giving of the same?
By the rule of the common law, on a transfer of goods or chattels, absolute or conditional
as against third persons, there must be a delivery and a continued change of possession of the
thing sold or assigned. By section 66 of an act of the legislature of 1861 (Stat. 1861, p. 20), it
is declared that no mortgage of personal property, hereafter made, shall be valid against any
other person than the parties thereto, unless possession of the mortgaged property be
delivered to and retained by the mortgagee. This act was amended by Stat. 1869, p. 55, also
by Stat. 1885, p. 53, and again by Stat. 1887, p. 66; and it now reads: No mortgage of
personal property shall be valid for any purpose against any other person than the parties
thereto, unless possession of the mortgaged property be delivered to and retained by the
mortgagee, or unless the mortgage shall be recorded in the office of the county recorder
of the county where the property is situated."
any purpose against any other person than the parties thereto, unless possession of the
mortgaged property be delivered to and retained by the mortgagee, or unless the mortgage
shall be recorded in the office of the county recorder of the county where the property is
situated. Independent of any statutory provision, and in compliance with the act of the
legislature of 1861, a delivery of the mortgaged property to the mortgagee would be necessary
to the validity of the instrument. But it seems to have been the intention of the legislature to
enact a law to enable the owners of personal property to make a valid transfer by way of
mortgage, as security, and yet permitting such mortgageor to retain possession and have the
control and use of the goods or chattels until the conditions as set forth in the mortgage were
broken, presuming that the recording of the mortgage would give equal or perhaps greater
notoriety to the transaction than the bare possession of the mortgagee.
The language of the statute is plain and unambiguous, and the plain implication is that if
possession is not taken, or the mortgage not recorded, it is absolutely void as against all
persons except the parties thereto. With this construction, the statute is a protection against
fraud, quite as effectual as that given by the common law or the act of 1861; but if we should
hold that an unrecorded mortgage may be enforced as against a creditor who has acquired a
lien upon the property by mortgage or otherwise, it seems to us that the door for fraud is left
wide open.
The statute under consideration is unlike statutes in relation to the recording of deeds and
mortgages of real estate, and chattel mortgages in other states, wherein it is enacted that
unless recorded they are fraudulent and void as against any subsequent purchaser or
mortgagee in good faith, and for a valuable consideration. The words, good faith and
valuable consideration, are omitted from our statute. In statutes where the words good
faith are used, the courts have held that a purchaser or subsequent mortgagee, knowing of
the existence of a mortgage on goods or chattels, was not a purchaser or mortgagee in good
faith; therefore they acquired no title to nor lien upon the property. But in statutes having
statutes similar to our own, the courts have universally held that a subsequent purchaser,
mortgagee or creditor could acquire a title to, or lien upon, the property notwithstanding they
knew of the outstanding lien, if the same was not recorded in strict compliance with the
statute.
ing lien, if the same was not recorded in strict compliance with the statute.
The statute under consideration is similar to the Indiana statute, with the addition to the
last named, requiring the mortgage to be recorded within ten days after the execution thereof.
In the case of Chenyworth v. Daily, 7 Ind. 285; Davisson, J., speaking for the court, said:
This enactment is clear, direct and positive. It admits of but one construction. Between the
parties to this suit, the mortgage under consideration, unless recorded within the time limited,
had no validity. * * * As the case stands, the mortgage must be considered a nullity; and the
claimant, having rested his title to the property upon that instrument, was not entitled to
recover. It was not sufficient for him to prove merely that the mortgage was recorded; but, in
addition, he was bound to show that, in accordance with the statute, such recording took place
within ten days after its execution.
In Lockwood v. Slevin, 26 Ind. 125, it is said: The language is so plain that no room is
allowed for construction.* The fact that the appellees had notice of the mortgage can make
no difference as to the question of the validity thereof. By the plain provisions of the statute,
such an unrecorded mortgage is only good as between the parties thereto. In the case of
Granger v. Adams, 90 Ind. 88, the court held: It is settled that a mortgage of goods, where
possession is retained by the mortgageor, is not valid as against creditors unless executed and
recorded in strict accordance with the statute. The common law did not recognize the validity
of such instruments against creditors, and the cases are well agreed that one who asserts a
right, under such an instrument paramount to the claims of creditors, must show that all has
been done that the statute requires. At common law possession was essential to the validity of
the mortgage, as against creditors of the mortgageor. Registration is made by law the
substitute for possession, and in order that registration shall have this effect, it must be such
as the statute prescribes. (Scarry v. Bennett, 28 N. E. Rep. 231.)
In construing the chattel mortgage act in California, from which we have reason to believe
ours was copied, in the case of Gassner v. Patterson, 23 Cal. 299, the court said: The
evidence shows that Timson, before and after the time of his purchase, had full
knowledge of the mortgage.
____________________
* Dissenting opinion of Gregory, C. J., p. 132.
dence shows that Timson, before and after the time of his purchase, had full knowledge of the
mortgage. * * * These provisions are plain, simple and most imperative in their terms. The
privilege of holding a lien upon certain kinds of personal property in the possession of the
mortgageor is accorded to the mortgagee, in certain cases, upon the performance of certain
conditions. These conditions are few, and easily performed, and there need be no difficulty,
with ordinary care, in fully complying with them. But they are made essential to the validity
of the mortgage. The courts have no right, no power, to extend the statute by construction so
as to include property not mentioned in it, or to dispense with any of the conditions the
legislature has seen fit to impose. If we should once begin and attempt to relieve parties in
cases of hardship, the law would be in danger of being frittered away and its benefits entirely
lost to the community. The present case is perhaps one of hardship upon the plaintiff, but it is
a consequence of his own oversight and neglect. But the respondent insists that the defendant
Timson is not a purchaser in good faith, and therefore he can not hold the property free of the
mortgage, and refers to section 15 of the statute of frauds. That section, however, does not
apply to this case, which is governed, as we have shown, by section 17 of the statute of
frauds, and the chattel mortgage act, which make no exception of that kind. They declare the
mortgage void as against any other person than the parties thereto.
In the case of Travis v. Bishop, 13 Metc. (Mass.) 304, Shaw, C. J., held that when
personal property is mortgaged, without a delivery thereof to the mortgagee, and the mortgage
is not recorded, a party who buys the property of the mortgageor, and takes possession of it,
though he has knowledge of the mortgage, will hold the property against the mortgagee. And
in Bingham v. Jordan, 1 Allen, 373, Hoar, J., said: An unrecorded mortgage of personal
property, which is not delivered to and retained by the mortgagee, is not valid against the
assignee in insolvency of the mortgageor. In Drew v. Streeter, 137 Mass. 460, the plaintiff
claimed under a mortgage executed on the 8th day of June, 1882, and recorded on the 9th day
of June, 1882. The defendant claimed under an attachment made on the same day, but after in
point of time the giving of the mortgage. The only question in the case was which took
priority.
which took priority. The public statutes of Massachusetts allowed fifteen days in which to file
and record chattel mortgages. The plaintiff contended that, if recorded within the fifteen days,
it would take effect from the date of its delivery, and would be entitled to priority over any
intervening title or lien. In passing upon this question, Morton, C. J., said: The general
statutes provided that unless a mortgage is recorded it shall not be valid against any person
other than the parties. By implication, when recorded, it was valid; but it was uniformly held
under this and preceding similar statutes that the registration did not relate back to the date,
and that the mortgage must yield to any intervening attachment or other liens.
In Rich v. Roberts, 48 Me. 551, the plaintiff offered to prove that the attaching creditor had
notice of the existence of the chattel mortgage before the attachment was made. This
testimony was objected to, and the objection sustained. In passing upon the objection, the
court said: The revised statutes touching the recording of deeds of real estate have changed
the former law, so that actual notice of an unrecorded deed, to persons making claim to the
estate subsequently to its delivery from the same source, alone will postpone the latter to the
former. In the statutes requiring the record of mortgages of personal property in order to make
them effectual, there is no such qualification; and it cannot be properly inferred that one was
intended against the imperative language used. And in Sheldon v. Connor, Id. 585, it is said:
Statutes requiring a mortgage of personal property to be recorded, to render it valid, makes
no exception; and one subsequently purchasing or attaching the property will not be affected
by an unrecorded mortgage, notwithstanding he had actual notice of it. (See, also, Selking v.
Hebel, 1 Mo. App. 340; Bevans v. Bolton, 31 Mo. 437; Parroski v. Goldberg, 50 N. W. Rep.
191.)
Without the citation of further authorities on this point, of which there are many, we shall
hold that an unrecorded mortgage where the goods or chattels are not delivered to and
possession retained by the mortgagee or the mortgage recorded in strict compliance with the
statute, is absolutely void as to all creditors of the mortgageor, even though they have notice
of the existence of the mortgage. To hold otherwise would be to place a construction upon the
statute never intended by the legislature, and would aid in the perpetration of, instead of
preventing, frauds.
legislature, and would aid in the perpetration of, instead of preventing, frauds.
The question for us to determine is, was Simpson a party to this transaction; true it is that
his name does not appear in the Chedic note or mortgage, and in that view of the case he is
not a party thereto. The parties thereto are the mortgageor and mortgagee. But Simpson
admits that he had knowledge of and read the agreement entered into between Chedic and
Harris on the 12th day of May, 1891, and that he drew his check for the sum of four thousand
dollars in favor of Harris, to be paid to Chedic on the consummation of that agreement. In
substance that agreement was, that Harris was to deposit the sum of four thousand dollars in
the bank of Wells, Fargo & Co., at Carson City, Nevada, as a guaranty of good faith, and that
sum should be applied as a payment on the purchase of the property, on the completion of the
inventory, and that Harris should give his notes of three hundred dollars each, secured by a
valid mortgage upon the stock of goods and fixtures in the store, for the sum of four thousand
dollars.
It must have been the intention and understanding of all the parties that the agreement and
giving of the notes and mortgage to Chedic would be one and the same transactionthe
making of the agreement, the initiatory step, the giving of the notes and mortgage on
completion of the inventory, the consummation of the same. Simpson must have known and
understood when he read that agreement that the mortgage to Chedic was to be the prior lien,
as against the property, and if he required a mortgage to secure him in the payment of the
money he advanced, such lien was to be subordinate to the Chedic mortgage; and although
Simpson was not an actual party to the agreement, and in the sense in which that term is used,
yet he participated and aided in the agreement and purchase to such an extent that it would be
wrong to hold that he could acquire a subsequent mortgage which would or could constitute a
prior lien to Chedic's. Such would be an act of fraud and injustice, and Simpson is bound by
an equitable estoppel, for he remained silent when he should have spoken, and we have a
right to presume that he acquiesced in the agreement; and, without a doubt, the part he took in
the making of the agreement formed a material inducement to Chedic in parting with his
property and led him to that Simpson was a party to the transaction, or if not such, any
lien that Simpson might acquire on the property to secure the four thousand dollars then
advanced by him would be subordinate to his own.
believe that Simpson was a party to the transaction, or if not such, any lien that Simpson
might acquire on the property to secure the four thousand dollars then advanced by him
would be subordinate to his own. Where two mortgages are executed by the same
mortgageor, parol evidence is admissible to prove that they are so connected with each other
that they may be regarded as one and the same transaction, and placed in such order of
priority and succession as will carry out the intention, and secure the rights of the parties; and
it is a question of fact, for the jury to determine, which is to have priority, by showing the acts
and declarations of the parties had at the time of the giving of the mortgages or the entering
into the compact that led up to the giving of the same. (Walker v. Vaughn, 33 Conn. 584;
Pomeroy v. Latting, 15 Gray, 436; Gilman v. Moody, 43 N. H. 243; Stafford v. Van
Rensselaer, 9 Cow. 317; Bigelow, Estop. p. 492 et seq.; Bigelow, Frauds, p. 31; Herm. Estop.
Secs. 934, 935.) We must, then, conclude that Simpson's mortgage was taken with a full
knowledge of all the attending circumstances. He participated and aided in the making of the
agreement, and by its terms Chedic's mortgage was intended to be a prior lien to any acquired
by Simpson for the money advanced on the 12th of May, 1891; and with such knowledge as
he had of the transaction, on the ground of public policy, he cannot now be permitted to
controvert the facts which that agreement must have suggested to his mind.
There was no contest in the lower court between D. C. Simpson, as plaintiff, and the
Langley & Michaels Company for position. The priority of the Simpson mortgage lien was
admitted by the answer of the company. There is no testimony in the record changing the
position as made by the pleading. The verdict of the jury was in favor of intervener Chedic.
The court disregarded the verdict, in so far as it affected the Langley & Michaels
Company's claim, and placed its lien prior in order of payment to the Chedic lien, which,
under the pleadings of the company, the complaint of intervention, and the law and facts in
the case, was the proper thing to do. But was the court authorized, on the issues raised by the
complaint of Simpson and answer of the company, to disregard the pleadings and prayer in
the answer, and place the Langley & Michaels Company's mortgage lien prior, in order of
payment thereof, to Simpson's?
thereof, to Simpson's? Such an issue has never been tried in the case. In its findings the court
substitutes a new issue. The judgment and decree appear to be entirely independent of the
allegations and admissions which constituted the basis upon which the complaint and answer
were framed.
It is a rule in courts of equity as well as courts of law, that judgments and decrees should
follow the pleadings and the evidence. But this rule is not universal. It is subject to
modifications. Courts of equity will exercise their jurisdiction, and relieve a party from a
mistake of law, when such mistake was induced by facts and circumstances giving rise to an
independent equity on behalf of the party liable to be injured by the strict enforcement of
what would appear to be the terms of the contract or agreement. When the conduct of the
other parties is inequitable, courts of equity will interpose and rectify the wrong. Applying the
above principle to this case, we find that, as between the Langley & Michaels Company and
Chedic, Chedic has no standing in court whatever, neither legal nor equitable. His mortgage
is an absolute nullity, as against that company's mortgage. But Simpson's mortgage is not
void, but merely voidable as to the Langley & Michaels Company, by reason of his own
laches in not insisting upon the execution and recording of his mortgage lien within a
reasonable length of time after the agreement had been entered into between Harris and
himself. Harris took possession of the store on the 4th day of June, 1891; he was permitted to
deal with the property as the absolute owner thereof; there was nothing said or done to
indicate to the outsiders that there were any liens against the property. Under these
circumstances the Langley & Michaels Company furnished Harris with goods to run his
business. The conduct of Simpson and Chedic gave to Harris a credit which he was not
entitled to, and their negligence amounted to a violation of a legal duty, and they will not be
permitted to take advantage of their own wrong. Under these circumstances no good could be
accomplished by sending the case back and allowing the Langley & Michaels Company to
amend its answer. Therefore the judgment will stand affirmed as to that company.
Numerous errors are assigned as to the admission and rejection of testimony, and giving
and refusal of instructions as between Chedic and Simpson. While in some instances the
rulings may not have been strictly accurate, but under the issues of fraud raised by the
pleadings large latitude of inquiry is permissible; and all the facts and circumstances
tending to throw light upon the transaction, as between the parties implicated, may be
given in evidence.
issues of fraud raised by the pleadings large latitude of inquiry is permissible; and all the facts
and circumstances tending to throw light upon the transaction, as between the parties
implicated, may be given in evidence. But the admitting, giving, or refusal, in this case, could
not have misled the jury; and as justice has manifestly been done, we do not feel disposed to
disturb the verdict or judgment.
I concur in the conclusion announced by Chief Justice Murphy, but upon grounds
somewhat different from those stated by him. There can be no question that under our statute,
where there is no change of possession of the property, a chattel mortgage which is not
recorded until a second mortgage has been honestly and in good faith taken and recorded,
must be postponed to the second mortgage, although the latter was taken with notice of the
existence of the first. The statute itself is clear, and the numerous cases cited by appellant's
counsel show that the question has been too often decided to be now open to further
controversy. It is admitted by the pleadings that the intervener Chedic's mortgage was taken
first, but not recorded until after the plaintiff Simpson's was made and placed on record.
Simpson had notice of the first mortgage, but this alone is not sufficient to postpone his
mortgage to the other. In my judgment, however, there are other grounds sufficient to support
the decree. They areFirst, that Simpson persuaded and induced Chedic not to record his
mortgage, and afterwards took advantage of the fact that he had not done so, to get his own
recorded first; second, that Simpson took his mortgage with intent to hinder, delay and
defraud Chedic in the collection of his mortgage. Without recapitulating the allegations of the
complaint of intervention, it is enough to say that the facts constituting these defenses are
sufficiently set forth.
There can be no question that Chedic's mortgage, although not recorded, was good as
between the parties. The fact that it was not recorded would only make it void as to others,
who did not occupy the position of a party. It would be good as against Harris' heirs, legatees,
donees or assignees, and, except as required to pay debts, good also against his executors and
administrators.
administrators. (Jones, Chat. Mortg. Secs. 237, 238, 239; Herm. Chat. Mortg. Sec. 70; Waite,
Fraud. Conv. Secs. 112-122.)
The only reason that can be urged why it is not good as against Simpson is that it was not
recorded. But upon this point it is alleged that when Chedic was about to place it upon the
records, he was requested and induced by Simpson not to do so. If so, Simpson is estopped
from raising this objection. In Bigelow on Estoppel (page 507), speaking of a case which had
been under discussion, it is said: This, it may be proper to observe, is only an illustration of
the familiar principle that if A induce B to omit taking certain steps, he cannot afterwards
object that B did not take them. Ashworth v. Brown, 15 Phila. 207, is to the same effect. So,
where one has requested or induced another to take certain steps, he cannot afterwards object
that the other had no authority or right to take them, or that he should not have done so.
(Johnson v. Allen, 62 Ind. 57; Gebhardt v. Reeves, 75 Ill, 301; Burlington v. Gilbert, 31 Iowa,
356; 2 Herm. Estop. Sec. 1221.)
Again, the intervener alleges that Simpson's mortgage was made and taken for the benefit
of the mortgageor, Harris, and to hinder, delay and defraud Harris' creditors, and particularly
to hinder, delay and defraud the said Chedic, by preventing him from recovering the amount
due upon his mortgage. This, also, constitutes a full and complete defense to Simpson's
mortgage, although the sum for which it was taken was actually and honestly due him from
Harris. If his mortgage was taken, not to secure himself, but to protect Harris, and to prevent
Harris' other creditors from obtaining their just demands, then it was void as against those
creditors. (Herm. Chat. Mort. Secs. 151, 170; Fuller v. Paige, 26 Ill. 358; Billings v. Russell,
101 N. Y. 232; Bradley v. Ragsdale, 64 Ala. 559; Boyd v. Turpin, 94 N. C. 137;
Blennerhassett v. Sherman, 105 U.S. 107; Mechanics' Nat. Bank v. Burnet Manuf'g. Co., 33
N. J. Eq. 486.)
So here we find at least two defenses set up in the intervener's complaint, either of which,
if true, is sufficient to postpone it to Chedic's mortgage, even though it was made for an
honest debt and was recorded before Chedic's was. There may be others, but these are
sufficient for the purposes of this decision.
The next point that naturally arises is, were either of these defenses established? The
manner in which this case was tried is not to be commended. A jury was called, but no special
issues were submitted to them, and they only found a general verdict in favor of the
intervener.
issues were submitted to them, and they only found a general verdict in favor of the
intervener. Where a jury is called in an equity case, only special issues should be submitted to
them, and when found, their verdict is only advisory of the court. (Duffy v. Moran, 12 Nev.
94, 97; Haynes, New Trials & App. Sec. 234.)
A general verdict in such a case is improper and should be disregarded. (Wingate v. Ferris,
50 Cal. 105; Brandt v. Wheaton, 52 Cal. 434; Warring v. Freear, 64 Cal. 54; Learned v.
Castle, 67 Cal. 41.) If it could possibly have any weight with the court in deciding the case, it
would only be where it was submitted to them under instructions clearly defining the
questions upon which they were to pass, so that it might be known what had been determined
by them and what had not. Even this was not done here, so far as can be judged from the
instructions as presented in the transcript. The result is that the verdict is valuless [valueless],
but as the plaintiff made no objection to the course taken, he can not now take advantage of
the error. As the verdict in an equity case has no value until adopted and sanctioned by the
court, and then only as a part of the findings, a motion for new trial should be made upon the
findings and not upon the verdict. (Duffy v. Moran, 12 Nev. 94; Stockman v. Irrigation Co.,
64 Cal. 57; Bates v. Gage, 49 Cal. 126.) The same as in any other case, if the findings do not
cover the issues made by the pleadings, every material fact not found must be presumed in
favor of the judgment. (Jones v. Adams, 19 Nev. 78, 80, 82; More v. Lott, 13 Nev. 381.) This
principle applies here.
The findings do not cover the real issues in the case. They are only upon matters
concerning which there was no controversy, such as the making of the mortgages, the order in
which they were made and recorded, etc. We are forced, then, under the doctrine of implied
findings, to adopt the presumption that all the issues in the case necessary to support the
judgment were found in favor of the intervener. The case is not so presented to us that we are
called upon or permitted to review the evidence to determine whether it supports these
implied findings. No request was made to the court to supply the omitted findings, nor is it
assigned as error that the implied findings are contrary to the evidence. The proper practice,
where a party wishes such questions reviewed in the appellate court, was pointed out in
Welland v. Williams, 21 Nev. 230
pointed out in Welland v. Williams, 21 Nev. 230. We have seen that the intervener's
complaint stated some good defenses. Had the plaintiff asked for findings upon these issues,
and the court refused them, it would have been error; had it found them in favor of the
plaintiff, it would have left the decree without support; had it found them against him, he
could have assigned as error that the findings were against the evidence, and perhaps he could
have done this upon the implied findings. (More v. Lott, 13 Nev. 381.)
I have looked into the assignments of error. The most of them are, under this view,
directed to immaterial matters, or are otherwise insufficient to raise any question. (Haynes,
New Trials & App. Sec. 150.)
The plaintiff's answer to the complaint of intervention alleges that the intervener is not the
owner of the mortgage claimed by him. No finding was made upon the point, so we must
presume that it was found that he was the owner, as otherwise the judgment would not
perhaps have gone in his favor. Possibly the tenth assignment of the insufficiency of the
evidence, raises the point that the evidence does not support such a finding. But in my
judgment the evidence is sufficient. It shows that although the intervener had assigned the
mortgage, it was only done by way of security and had been reassigned to him before he
intervened in the action. The evidence also supports the implied finding attacked in the
fourteenth assignment. No error was committed in the admission of testimony. One of the
issues being fraud, all of the surrounding circumstances, including the conversation of the
parties concerning the matter, were properly admitted as reflecting upon the question.
Conceding that in a case tried as this was, a party is entitled to ask instructions to the jury, no
error was committed in refusing the two instructions asked by the plaintiff nor in modifying
the others.
It remains to consider the order in which the decree directs the mortgages to be paid.
Subsequent to the making and recording of the plaintiff's mortgage, but before the intervener's
was recorded, a mortgage was made and recorded to the Langley & Michaels Company, a
corporation. In their answer the company concede that the plaintiff's mortgage is entitled to
payment before theirs, but as their mortgage was taken in good faith, and recorded before the
intervener's, they are undoubtedly entitled to payment before the intervener. Upon this state of
fact the Langley & Michaels mortgage should be paid before Chedic's, Chedic's before
Simpson's and Simpson's before Langley & Michael's.
of fact the Langley & Michaels mortgage should be paid before Chedic's, Chedic's before
Simpson's and Simpson's before Langley & Michael's. This presents what may be properly
called a mathematical impossibility. The decree directs that Langley & Michaels shall be paid
first, Chedic second, and Simpson third. As the nearest approach to justice possible under the
circumstances, this was, in my judgment, correct, and is supported by the only precedents
found upon the question. In Sayre v. Hughes, 32 N. J. Eq. 652, 659, it is said: Where a third
incumbrancer acquires a right of priority as against the first, but the act or omission from
which such right flows does not change his relative position towards the second, yet, as it is
impossible to put him in advance of the first without also advancing him over the second, his
lien must of necessity be advanced to the first position, as against both the first and second
incumbrances.
For these reasons I concur in affirming the judgment and order appealed from.
____________
21 Nev. 378, 378 (1893) State v. Grey
[No. 1375.]
THE STATE OF NEVADA ex rel. JAMES D. TORREYSON, ATTORNEY GENERAL,
Relator, v. O. H. GREY, SECRETARY OF STATE, Respondent.
Constitutional ConstructionPublication of Amendments.Section 1 of article XVI of the constitution of
Nevada, requiring proposed amendments to the constitution, which are to be acted on by the next
legislature, to be published for three months next preceding the time for electing such legislature, is
complied with by the publication of the proposed amendments in the statutes issued and distributed sixteen
to eighteen months prior to the election, especially where this mode of publication has been sanctioned by
the legislature and followed.
Original application for a writ of mandate.
J. D. Torreyson, in pro. per., Thomas Wren and Trenmor Coffin, for Relator.
I. The mode of publishing proposed amendments in vested in the discretion of the
legislature. This section of our constitution is taken from that of California, which provided
for the publication of proposed amendments in a newspaper. The omission of such provision
in our constitution shows that the mode of publication was left to the legislature.
21 Nev. 378, 379 (1893) State v. Grey
mode of publication was left to the legislature. Our constitution provides for the publication
of the statutes and journals, and therefore a publication of the proposed amendments in the
statutes and journals is a compliance with the constitution. (Const. Art. XV, Sec. 8; Const.
Art. IV, Sec. 14; 92 Am. Dec. 520, notes and authorities cited; 85 Am. Dec. 360, notes and
authorities cited; Anderson's Law Dic. 843, title, publication.) Whenever the interpretation
of a statute or a constitution in a certain way will result in manifest injustice, courts will
always scrutinize the act or constitution closely to see if it will not admit of some other
interpretation. (4 Nev. 201; 25 N. E. Rep. 365.) The publication of the statutes and journals
is a continuous publication from the time of their distribution to the present time and such
publication includes the three months required by the constitution.
Sardis Summerfield and Robert M. Clarke, for Respondent.
I. The publication of proposed amendments contemplated by the constitution is a
publication in some popular channel of information and for the actual three months next
preceding the election. The object of such publication was to impart notice to electors in
general of the nature of proposed amendments to the organic law of the state, and to impart
such notice at the particular time when the electors of the state nominate members of the
legislature, who will vote for or against the submission of the amendments to the people
according to the choice of their constituents.
At the session of the legislature of 1891 there were introduced and passed by the senate,
and concurred in by the assembly, twenty-six, and introduced and passed by the assembly,
and concurred in by the senate, two, making twenty-eight in all, proposed amendments to the
constitution of this state. Said proposed amendments were agreed to by a majority of all the
members elected to each of the two houses, entered in their respective journals, with the yeas
and nays taken thereon, and were published in full, with the statutes and the printed
proceedings of the senate and assembly during the year 1891, and distributed generally
throughout the state more than three months next preceding the general election held in
November, 1S92.
21 Nev. 378, 380 (1893) State v. Grey
months next preceding the general election held in November, 1892. This was the only
publication had of such proposed amendments. On the 3d day of February, 1892, the senate
and assembly being in session, through their proper officers, requested the secretary of state
to return to each of the respective houses the proposed amendments acted upon at the
fifteenth session of the legislature, for such further action as may seem to them proper and
just, and as provided for in section 1 of article 16 of the constitution. But the secretary of state
refused, and still refuses to return said proposed amendments, or any of them, giving as his
reason for such refusal that the said proposed amendments were not in a condition to be
referred to the present legislature, for the reason that the same had not been published for
three months next preceding the last general election; he claiming that a publication in the
statutes and journals was not a publication for three months next preceding the general
election, and was not such a publication as is required by the constitution. At the request of
the senate and assembly, the attorney general applied for and was granted the alternative writ
of mandamus.
Section 1 of article 16 reads as follows: Any amendment or amendments to this
constitution may be proposed in the senate or assembly, and if the same shall be agreed to by
a majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the yeas and nays taken
thereon, and referred to the legislature next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if in the legislature next chosen
as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all
the members elected to each house, then it shall be the duty of the legislature to submit such
proposed amendment or amendments to the people in such manner and at such time as the
legislature shall prescribe; and if the people shall approve and ratify such amendment or
amendments, by a majority of the electors qualified to vote for members of the legislature
voting thereon, such amendment or amendments shall become a part of the constitution.
The only question we are required to pass upon is what is meant by the sentence and shall
be published for three months next preceding the time of making such choice? It is insisted
by the attorneys for the respondent that a publication in the statute does not comply with
the requirements of section 1 of article 16 of the constitution, because, the statutes being
printed and distributed as expeditiously as possibly [possible] after the adjournment of
the legislature, and therefore printed and published some eighteen months before the
election of members to the next legislature to be chosen; or putting it in another form, the
statutes being printed and distributed for more than three months preceding the general
election, it was not a publication for three months next preceding the election.
21 Nev. 378, 381 (1893) State v. Grey
by the attorneys for the respondent that a publication in the statute does not comply with the
requirements of section 1 of article 16 of the constitution, because, the statutes being printed
and distributed as expeditiously as possibly [possible] after the adjournment of the legislature,
and therefore printed and published some eighteen months before the election of members to
the next legislature to be chosen; or putting it in another form, the statutes being printed and
distributed for more than three months preceding the general election, it was not a publication
for three months next preceding the election. It is a well established principle of law, and one
that does not require the citation of authorities, that the greater includes the lesser.
Therefore the statutes being printed and published from sixteen to eighteen months before the
election, is a publication for three months next preceding the election, for a statute is a
continuous publication; it is the publication of edicts which the people in the state are bound
to take notice of and act under.
A publication is defined in the dictionaries: the act of publishing or making known;
notifying or printing; proclamation; divulgation; promulgationas the publication of the
gospel; the publication of statutes or edicts. Published is defined by Worcester as the act of
publishing or making public; by Webster, the act of publishing or making known; notification
to the people at large, either by words, writing, or printing; by Bouvier, as the act by which a
thing is made public. The design of publication prescribed by the constitution was to convey
to the voters in this state the information that certain constitutional amendments had been
proposed, and to afford them an opportunity to discuss the advisability of such proposed
amendments, and to govern them in their choice for members of the next legislature; and that
object was as well accomplished by a publication in the statutes as it could have been by any
other course. It was not only sufficient to satisfy the requirements of the spirit of the
constitution, but in our opinion the proceeding in the manner of publication was in
conformity with the letter of the section under discussion.
From the reading of the section it is evident that the framers of the constitution intended
that the legislature should be the sole judges as to the manner in which such publication is to
be made, there being no restraint on them whatever, except requiring the publication to
commence at least three months before the holding of the election; and we cannot, from
reason or authority, come to any other conclusion than that a publication for eighteen
months must be deemed a publication for three months, so long as that publication
continued up to and including the date of the happening of the event for which the
publication was intended to give the notice to the voters of the state.
21 Nev. 378, 382 (1893) State v. Grey
before the holding of the election; and we cannot, from reason or authority, come to any other
conclusion than that a publication for eighteen months must be deemed a publication for three
months, so long as that publication continued up to and including the date of the happening of
the event for which the publication was intended to give the notice to the voters of the state.
The attorneys for the respondent admit that the legislative department is vested with this
discretionary power, in so far as authorizing the method of publication of the amendments, so
long as they were published for just three months next preceding the election. They admit
that, by resolution the legislature could authorize publication to be made in one weekly
newspaper; or by printing posters at the state printing office and posting them in conspicuous
places throughout the state; or by printing circulars and distributing them generally to the
voters; and as we understand them, the publication might be made in any conceivable way
excepting in the statutes. This is an attempt to place a construction upon the section never
intended by the framers of the instrument, nor the people when they ratified it. If we were to
apply the rule of construction contended forthen if the legislature should introduce a
resolution that the notice of the proposed constitutional amendments should be published in
one weekly newspaper, and the first issue of such paper containing such notice should be
struck off ninety-five days before the election, then it would not be a good publication,
because it was published for more than three months next preceding the electionsuch a
narrow and technical reasoning would be misplaced when brought to bear on an instrument
framed and adopted by the people themselves for themselves. In construing constitutional
provisions, courts ought not on the one hand to indulge in ingenious speculations which may
lead us wide from the sense and spirit of the instrument; nor should we apply to it such a
narrow construction as would exclude the main object and intention of its framers. Therefore,
where the words of a constitution are unambiguous and in their commonly received sense
lead to a reasonable conclusion, then such instrument should be read according to the natural
and most obvious import of its framers, without resorting to subtle and forced construction
for the purpose of limiting or extending its operations.
The section under consideration contemplates a publication in the statutes or in the
newspapers, as the legislature may determine, and that department has in one instance
given to section 1 of article 16 of the constitution a construction which we think we are in
duty bound to adopt.
21 Nev. 378, 383 (1893) State v. Grey
in the statutes or in the newspapers, as the legislature may determine, and that department has
in one instance given to section 1 of article 16 of the constitution a construction which we
think we are in duty bound to adopt. That was during the twelfth session. Stat. 1885, p. 150,
Senate joint and concurrent resolutions relative to the manner in which resolutions
proposing constitutional amendments shall be treated. The fifth subdivision of that
resolution reads: Fifth. That said duplicate enrolled copies of said resolutions shall be
published in the printed copies of the statutes and resolutions of the present session of the
legislature in the same order and manner as if they were the original enrolled resolutions.
Showing conclusively that it was their understanding from the reading of the section under
discussion that a publication in the statutes was all that was required under its provisions, and
in this we think that they gave to the section the construction that was intended to be placed
upon it by the framers of that instrument. From an examination of constitutions, in relation to
proposed amendments of other states, we find that in quite a number no publication is
required. In others publication is made in the statutes; and in others publication is required
from three to twelve months, and the manner of publication is provided for in the
constitutions or by a general law.
Section 8 of article 15 of the constitution provides: That the legislature shall provide for
the speedy publication of all statute laws of a general nature. On the 14th day of February,
1865, the legislature did enact a law, which law is still in force, requiring the printing, free
distribution and sale of all laws, resolutions and memorials passed at each session of the
legislature. That course having been pursued for such a length of time by the legislature, and
acquiesced in by the people, it is fair to presume that they deemed the publication in the
statutes a compliance with the constitutional requirements. For frequent exercises of power
uniform and long acquiescence of the people in it, constitute a fundamental law, as binding as
though it had been formulated expressly in the constitution. (James. Const. Con. 574h;
Cooley, Const. Lim. 82; Sedg. St. Const. 412.) Our constitution having been adopted in the
month of October, 1864, and numerous amendments having been proposed and acted upon by
the people, and some of them having been ratified, they are now a part of the constitution,
under which laws have been enacted and property rights acquired.
21 Nev. 378, 384 (1893) State v. Grey
which laws have been enacted and property rights acquired. The executive department of the
state government has in many ways recognized them, and this court having sustained the
constitutionality of laws enacted to carry into effect the provisions of the amendments so
proposed and ratified by the people, publication in the statutes having the sanction of long
and general approval, were there ever a doubt existing as to the legality of the publication, the
people having acted under the construction placed upon the section by the legislature, under
such circumstances it is our duty to hold that a publication in the statutes is a compliance with
section 1 of article 16 of the constitution, and the proposed amendments should be referred to
the present session of the legislature for such further action as to them may seem just. It is
therefore ordered that the peremptory writ of mandamus issue forthwith.
This case turns upon a determination of the question whether the constitutional
amendments proposed by the legislature of 1891 have been published in accordance with the
requirements of section 1 of article 16 of the constitution of this state. No other point has
been discussed or presented, and in view of the great importance of this matter we propose to
consider it without raising any other question ourselves.
These amendments were proposed as joint resolutions of the two houses at the fifteenth
session, and it is admitted were regularly entered upon the legislative journals, with the yeas
and nays of those voting upon them, were properly referred to the succeeding legislature, and
were published according to law in the printed journals and statutes of that session; but there
has been no official publication in any other manner, and it is claimed that this publication is
insufficient, under the constitution.
Section 1 of article 16 reads as follows: Any amendment or amendments to this
constitution may be proposed in the senate or assembly, and if the same shall be agreed to by
a majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the yeas and nays taken
thereon, and referred to the legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice.
21 Nev. 378, 385 (1893) State v. Grey
such choice. And if in the legislature next chosen as aforesaid such proposed amendment or
amendments shall be agreed to by a majority of all the members elected to each house, then it
shall be the duty of the legislature to submit such proposed amendment or amendments to the
people in such manner and at such time as the legislature shall prescribe; and if the people
shall approve and ratify such amendment or amendments, by a majority of the electors
qualified to vote for members of the legislature voting thereon, such amendment or
amendments shall become a part of the constitution.
It must be admitted that this provision concerning publication is not self-executing, except,
perhaps, in the sense that anything done contrary to its provisions would be null and void; but
it does not place the duty of making the publication upon any officer or board, nor does it
prescribe what shall constitute the publication required. To this extent, at least, it must have
been intended that the legislature proposing the amendments should exercise its discretion. If
it be conceded that the provision means some kind of a publication extending through the
three months preceding the election, as is contended by respondent's counsel, it does not
follow that it must be made in a newspaper. A regular publication and distribution of the
amendments during that time, either daily, weekly, or monthly, by the state printing office or
other instrumentality, would comply with its language, and doubtless result in as wide a
dissemination among the people of knowledge concerning the amendments as would their
publication in any one newspaper. If we concede that the clause requires a publication in a
newspaper, it is still for the legislature to say how often it must be published, and whether in
one newspaper in the state, or one in each county, or more or less than those numbers. So, in
any view, within lines more or less circumscribed, it is a matter for the legislature to deal
with. I think it must also be admitted that the construction to be placed upon this language is
to some extent a matter of doubt. Whether the publication in the journals and statutes is a
compliance with its requirements is a question concerning which men may reasonably differ.
This is shown by the fact that since the adoption of the constitution sixty-four amendments
have been proposed by nine different legislatures, and no provision has ever been made for
any other publication than this. Some courts have held that similar language was satisfied
by one publication made the necessary time before the event, and that such publication
constituted a publication for the required time.
21 Nev. 378, 386 (1893) State v. Grey
Some courts have held that similar language was satisfied by one publication made the
necessary time before the event, and that such publication constituted a publication for the
required time. (Mayor, etc., v. Gear, 27 N. J. Law 265; opinion of Beck, J., in Koehler v.
Hill, 60 Iowa 579.)
Heretofore in this state there has been no question made, either in the courts or before the
people, that the publication in the journals and statutes was not sufficient; many able
attorneys are now of the opinion that such publication is in strict accordance with the
constitution, and that is the judgment of my honorable associate upon the bench, Chief Justice
Murphy. Under these circumstances, it is safe to say that if such publication is not sufficient,
there has been at least reasonable grounds for believing that it was. Such being the case,
although if the question were now res integra, I should perhaps come to a different
conclusion, I feel constrained to follow the practical construction that has been so long placed
upon this clause. Since the adoption of the constitution, commencing within ten years
thereafter, some sixty-four amendments have been proposed by the different legislatures. A
large number of these have been agreed to by the succeeding legislatures, and submitted to
the people; they have acted upon them, and some having received a majority of all the votes
cast, have been incorporated into the fundamental law, and been recognized as a part of the
constitution by the people, the legislatures and the courts. The legislature of 1877 proposed
what is now known as section 10 of article 11, prohibiting the use of public funds for
sectarian purposes. It was agreed to by the legislature of 1879, and adopted by the people at
the election of 1880.
In 1881 (Stat. 1881, p. 122) the legislature directed the payment by the state to the several
orphan asylums therein of the sum of seventy-five dollars per annum for each orphan. Under
this act the Nevada orphan asylum presented a claim for a sum of money, but the controller
refused to draw a warrant for it, upon the ground that the act was in conflict with the section
of the constitution just mentioned. In the case of State ex rel. Nevada Orphan Asylum v.
Hallock, 16 Nev. 373, this contention was sustained, and the law declared unconstitutional by
this court. The orphan asylum was there represented by as able counsel as were to be found in
the state, including two who had ornamented the supreme bench, but no suggestion was
made either by them or the court that the amendment had not been constitutionally
adopted.
21 Nev. 378, 387 (1893) State v. Grey
was made either by them or the court that the amendment had not been constitutionally
adopted. Seven other amendments have also been made in the same manner, which are now
recognized as being a part of the state constitution, and have been treated as such for years
past by the legislature, the courts and the people. No argument has been made that the
amendments could be valid if not published as required by the constitution, and doubtless
under the decisions, particularly of this court (State v. Tufly, 19 Nev. 391; State v. Davis, 20
Nev. 221), they would not be. I know of no principle upon which those amendments can be
held to be a part of our constitution if the publication now under consideration is held
insufficient.
All of these acts constitute such a practical construction of a doubtful clause of the
constitution as should now, in my judgment, conclude the court from placing any other upon
it. This principle is laid down by all the text writers and has often been recognized and
adopted by the courts. Judge Cooley states it thus: But where there has been a practical
construction which has been acquiesced in for a considerable period, considerations in favor
of adhering to this construction sometimes present themselves to the courts with a plausibility
and force which it is not easy to resist. Indeed, where a particular construction has been
generally accepted as correct, and especially when this has occurred contemporaneously with
the adoption of the constitution, and by those who had opportunity to understand the intention
of the instrument, it is not to be denied that a strong presumption exists that the construction
rightly interprets the intention. And where this has been given by officers in the discharge of
their official duty, and rights have accrued in reliance upon it, which would be divested by a
decision that the construction was erroneous, the argument ab inconvenienti is sometimes
allowed to have very great weight. (Cooley, Const. Lim. 82.)
In Endlich's Interp. Stat. Sec. 527, it is said: The greatest deference is shown by the courts
to the interpretation put upon the constitution by the legislature in the enactment of laws and
other practical application of constitutional provision to the legislative business, when that
interpretation has had the silent acquiescence of the people, including the legal profession and
the judiciary, and especially when injurious results would follow the disturbing of it.
Sutherland says: A construction of a constitution, if nearly contemporaneous with its
adoption, and followed and acquiesced in for a long period of years afterwards, is never to
be lightly disregarded, and is often conclusive."
21 Nev. 378, 388 (1893) State v. Grey
of a constitution, if nearly contemporaneous with its adoption, and followed and acquiesced
in for a long period of years afterwards, is never to be lightly disregarded, and is often
conclusive. (Stat. Const. Sec. 307.) The uniform legislative interpretation of doubtful
constitutional provisions, running through many years, and a similar construction of statutes,
has great weight. (Id. Sec. 311.) To the same effect are Sedgwick, Stat. Const. 412, and
Story, Const. Secs. 404, 1093.
In Bingham v. Miller, 17 Ohio, 445, the authority of the legislature to grant divorces came
before the supreme court, and although the court was unhesitatingly of the opinion that the
legislature had no constitutional right to grant them, yet the early assumption and long
continued exercise by that body of the power to do so was held to have established their
validity. A similar ruling was made in Cronise v. Cronise, 54 Pa. St. 260, where the court,
speaking by Agnew, J., said: I repeat a common thought when I say that a constitution is not
to be interpreted as a private writing by rules of art which the law gives to ascertain its
meaning, but is to be studied in the light of ordinary language, the circumstances attending its
formation, and the construction placed upon it by the people whose bond it is. Judged by
these tests, special divorce laws are legislative acts. * * * Communis error facit jus would be
sufficient to support it, but it stands upon the higher ground of contemporaneous and
continued construction by the people of their own instrument. So in Mining Co. v. Seawell,
11 Nev. 399, Hawley, C. J., delivering the opinion, said: But in this connection it must, as
we think, be admitted that although the action of the legislature is not final, its decision upon
this point is to be treated by the courts with the consideration which is due to a co-ordinate
department of the state government, and in case of a reasonable doubt as to the meaning of
the words, the construction given to them by the legislature ought to prevail. The supreme
court of Illinois, in considering the construction to be placed upon a constitutional provision,
used this language: Again this question is purely political. No private rights are involved. It
is a rule of law, well established, that where questions involved are purely political, and
depend upon the construction to be given to provisions of doubtful interpretation, the court
will not only give great consideration to a construction given by the political departments of
the state, but will generally follow such construction implicitly."
21 Nev. 378, 389 (1893) State v. Grey
partments of the state, but will generally follow such construction implicitly. (People v. La
Salle Co., 100 Ill. 495.) The supreme court of the United States has given the principle the
weighty sanction of their authority, by declaring that a contemporary exposition of the
constitution, practiced and acquiesced in for only about twelve years, fixes its construction
(Stuart v. Laird, 1 Cranch 299); and in pronouncing the practical construction of a statute to
be the one that must be enforced, although clearly not authorized by the terms of the law
itself. (McKeen v. Delancy's Lessee, 5 Cranch 22.)
It would be unprofitable to make further extracts from the decisions; suffice it to say that
the cases wherein the doctrine has been recognized and applied are both numerous and well
considered. (Mayor v. Board, 15 Md. 458; Scanlan v. Childs, 33 Wis. 666; Johnson v.
Railroad Co., 23 Ill. 202; Harrington v. Smith, 28 Wis. 43; Packard v. Richardson, 17 Mass.
144; Rogers v. Goodwin, 2 Mass. 477; Moers v. Reading, 21 Pa. St. 188; State Line, etc., R.
Co.'s Appeal, 77 Pa. St. 429; Holmes v. Hunt, 122 Mass. 505, 516; Opinion of the Judges,
126 Mass. 594.)
Perhaps a word should be added in explanation of the language used in the opinion in State
v. Davis, 20 Nev. 220, to the effect that the amendments then under consideration had been
published in a newspaper according to the requirements of the constitution. The point was not
involved in that case. The record shows neither pleading nor proof concerning it, nor was it
referred to in the briefs of counsel. The judges must have obtained the knowledge asserted by
them extraneously. Inquiry at the bar, upon the argument here, developed the fact that while
those amendments were pending they were published by a proprietor of a newspaper in
Carson, who was of the opinion that they should be so published; but this was done without
the sanction of any law, or the direction or order of any board or officer. This is probably
what was referred to, but such an unauthorized publication could, of course, have no validity
(Clark v. Janesville, 10 Wis. 136, 181), and amounted to no more than the publication that is
always made by the newspapers of the state, as a matter of interest to their readers. This,
consequently, is no variation of the constant practice to publish only in the journals and
statutes, of which I have spoken.
21 Nev. 378, 390 (1893) State v. Grey
While the principle of following a contemporaneous and practical construction of a statute
or constitution should never be applied except in cases of reasonable doubt, and perhaps not
where it is calculated to work wrong or injury to any class or interest, yet within these lines
where it has been so uniformly followed, as has been the case here, and a different
construction would be fraught with such serious consequences, it should be held to have fixed
the meaning of the language, although without this it might be held to mean something
different. For this reason I concur in the order directing the writ to issue.
____________
21 Nev. 390, 390 (1893) Sawyer v. Dooley
[No. 1371.]
GEORGE S. SAWYER, Appellant, v. W. J. DOOLEY,
Respondent.
Delinquent TaxesSummary Process for Collection.The summary process provided by statute for the sale of
property for delinquent taxes amounting to less than three hundred dollars does not deprive a person of
property without due process of law.
IdemDue Process of LawClassification of Taxpayers.Such summary proceedings do not deprive a person
owing less than three hundred dollars of the equal protection of the laws; although, where the amount is
more than that sum, there must be a regular action in court for its collection. This is only a reasonable
exercise by the legislature of the right to classify the taxpayers.
Constitutional LawSpecific Constitutional Restrictions.A statute can only be declared unconstitutional
where specific restrictions upon the power of the legislature can be pointed out, and the case shown to
come within them, and not upon any general theory that the statute is unjust, or oppressive, or impolitic, or
conflicts with a spirit supposed to pervade the constitution, but not expressed in words.
Constitutional ConstructionAssessment and Equalization of Property.There is nothing in the constitution of
Nevada which indicates that it was intended to confer upon county assessors the sole right to assess
property, or upon county commissioners the sole right to equalize its valuation.
IdemDepartments of State GovernmentDelegation of Powers.Article III. of the constitution, dividing
the state government into three great departments, does not prohibit one department from exercising
powers of the nature of those belonging to one of the other departments, unless that power is either
expressly or impliedly conferred upon the other department by the constitution. That article only refers to
the state government as created by the constitution.
State Board of Assessors and EqualizationDe Facto Member. Collateral Attack.The right of a de facto
member of the board of assessors and equalization to exercise the duties of his office can not be collaterally
questioned.
Constitutional ConstructionAssessment of Property.As all property is to be assessed at its actual cash value,
the fact that the act (Stat. 1891, p. 56) provides that different kinds of property shall be assessed by
different assessors, does not make it conflict with article X of the constitution of Nevada, requiring a
uniform and equal rate of taxation. The cash value may be as well and accurately determined by several
men and boards as by one.
Statutory ConstructionProperty of Corporations and Individuals.As the act provides that all railroads,
however owned, are to be assessed by the state board, and all other property by the county assessors, it is
not in conflict with Sec. 2, Art. VIII of the constitution, requiring corporations to be taxed the same as
individuals. It makes no improper discrimination between corporations and individuals.
Delegation of Powers of GovernmentPossible Abuse of Power.In all systems of government power must be
lodged somewhere, and the fact that the power given to the state board may be abused is not a sufficient
argument against the authority of the legislature to place it there, nor against the right of the board to
exercise it.
Statutory ConstructionConstitutional Law.The act is simply an exercise of the right of the legislature to
classify property for the purposes of taxation, and as in authorizing the board to assess property it applies
to all railroads in the state, it is a general law, and not in conflict with Sec. 20 of Article IV, forbidding
special laws for the assessment and collection of taxes.
Authority of the State Board of Assessors and EqualizationEqualization of Property.The act authorizes the
board to equalize the value of railroads, as well as other property, and to raise the assessed value of the
same, without regard to whether the owner applies for a reduction of the valuation.
Action brought to restrain defendant, as tax collector of Lincoln county, from selling
certain property of the plaintiff for taxes delinquent for the year 1891, amounting to fifty
dollars and five cents. The agreed facts are that the plaintiff was the owner of certain
property which was duly assessed by the assessor of that county for the year 1S91.
owner of certain property which was duly assessed by the assessor of that county for the year
1891. That the county board of equalization made no change in the valuation, but the state
board of assessors and equalization raised it, in common with all other property in the county,
ten per cent. The plaintiff duly tendered the amount of the tax due from him upon the original
assessment, but the tender was refused.
At the commencement of the action the court granted a temporary restraining order, but
upon the final hearing it was dissolved, and judgment rendered for the defendant for the sum
of fifty-seven dollars and five cents, the amount of the tax and penalties, together with costs
of suit. The plaintiff appeals.
The act of 1891 (Stat. 1891, p. 56) creates the state board of assessors and equalization, to
consist of the governor, state controller, secretary of state, attorney general, and state
treasurer.
This board is to assess all railroads, and the rolling stock and side tracks of all railroads in
the state. The value of all side tracks is to be apportioned to the county where situated, and
also a part of the total assessment of main track and rolling stock, in proportion to the number
of miles of railroad in the county. All other railroad property, and all other property, is to be
assessed by the several county assessors. The state board is to act as a board of equalization,
and may increase or lower the entire assessment roll of any county, or any class of property or
individual assessment contained therein.
Section 12 of the act reads: If the owner of a railroad assessed by the state board be
dissatisfied with the assessment made by the said board, such owner may * * * apply to the
board to have the same corrected in any particular, and the board may correct and increase or
lower the assessment made by it, so as to equalize the same with the assessment of other
property in the state. If the board shall increase or lower any assessment previously made by
it, a statement of the change is to be made to the county auditor.
George S. Sawyer, in pro. per., for Appellant.
I. Section 39 et seq. of the revenue law is contrary to the constitution of this state and to
that of the United States. It authorizes a person to be deprived of his property without due
process of law. (Amendment V, Const. of the United States:
Sec. 8, Art. 1, Const. of Nevada.) The discriminating mode of procedure where delinquent
taxes amount to more than three hundred dollars as compared with the mode where they
amount to only that sum, or less, does not afford to owners of property the equal protection
of the laws.
II. The statute creating and defining the powers of the state board of assessors and
equalization is not warranted by our constitution and the principles of government. It attempts
to create offices and a board which is not authorized by the constitution, but is impliedly
prohibited by it. It delegates legislative powers to the board by giving it authority to prescribe
rules and regulations to govern boards of county commissioners, contrary to Art. III of the
constitution. It violates the constitution in providing different modes of assessing different
classes of property. It violates Art. X of the constitution in giving the board arbitrary power to
raise or lower the whole assessment roll of counties. It violates the constitution in giving to
the board judicial powers, while every member of the board belongs to the executive
department of the state.
J. D Torreyson, Attorney General, and Trenmor Coffin, for Respondent.
I. Every act is presumed to be constitutional, and courts will not declare an act
unconstitutional and void unless it clearly appears so after mature deliberation and earnest
consideration.
II. If the legislature had the power to create such a board, and if the law is uniform, then it
is constitutional.
III. The general power over the question of taxation is given by the constitution to the
legislative department, and it has by implication the power to determine the value of the
property to be assessed, and the power of discrimination in selecting the agents through which
it may fix the taxable values of the state and can delegate this power to others. (Van De Griff
v. Haynie, 28 Ark. 270.)
IV. The act is a general law and operates uniformly upon all property of like class or kind
throughout the state. Such classification is not prohibited by the federal constitution. (St. L.
M. & S. Ry. v. Worthen, 52 Ark. 529; Railroad Tax Cases, 92 U.S. 575; Cummings v. Bank,
101 U.S. 153; Kentucky Ry. Cases, 115 U.S. 321; Ottawa Gas Co. v. Downey, 127 Ill. 201;
People v. Henderson, 12 Colo. 369.)
1. Where the amount of a delinquent tax is less than three hundred dollars, the statute
(Stat. 1891, p. 147 et seq.) authorizes the county treasurer to sell the property upon which the
tax is a lien by simply giving certain notices, instead of there being an action brought in a
court, and judgment obtained, as must be done where the tax is more than that amount. It is
first claimed that this law is unconstitutional, because it deprives a person of property without
due process of law. This point has, however, been too often decided adversely to the appellant
to be now open to further controversy. So far as we know, it has been uniformly held from the
time when the objection was first made, upon grounds that seem entirely satisfactory, that the
clause of the constitution under consideration does not prohibit the collection of taxes by
summary process instead of by regular proceedings in court. (State v. Central Pac. R. Co., 21
Nev. 260; Gibson v. Mason, 5 Nev. 283; Davidson v. New Orleans, 96 U.S. 97; Kelly v.
Pittsburgh, 104 U.S. 78; High v. Shoemaker, 22 Cal. 363.)
2. The appellant further claims that the provision of the statute for a summary collection
of taxes denies to him an equal protection of the laws, and hence is in conflict with the
fourteenth amendment of the constitution of the United States. This is based upon the fact
already stated, that where the tax amounts to over three hundred dollars there must be a
regular action in court for its collection. He is, however, given the same protection that all
other persons that owe less than three hundred dollars are given, and we think that this,
instead of being an unlawful discrimination against the appellant, is simply the exercise of the
right to make a classification of taxpayers, which, within reasonable limits, we believe the
legislature has full power to adopt. Good and sufficient reasons appear why, in cases where
the tax is only for a small amount, neither the state nor the taxpayer should be burdened with
the additional labor and expense of an action at law. But as in these summary proceedings the
statute must be more or less strictly complied with, they are often defective, and do not result
in the collection of the delinquent tax; this being so, where the amount is large, the legislature
has doubtless wisely provided that there shall be a regular action at law, as being more likely
to result in compelling the payment of the tax.
This classification is governed by the same principle which, as we shall see, we think
authorizes the legislature to provide different assessors and different methods of equalizing
the valuation of different classes of property.
3. State boards of assessment and equalization are so generally established throughout the
various states of the union, and their validity has been so often passed upon and sustained by
the highest courts in the land, that there is scarcely a question presented in this appeal that has
not been already presented and overruled in some other case.
Perhaps it would be a sufficient answer to the principal argument made by the appellant, to
say that the courts cannot declare a statute unconstitutional and void solely on the ground of
unjust and oppressive provisions, or because it is supposed to violate the natural, social or
political rights of the citizen, unless it can be shown that such injustice is prohibited, or such
rights granted or protected by the constitution. (Cooley, Const. Lim. 197.)
Nor can this be done because of the apparent injustice or impolicy of the law, nor because
it is opposed to a spirit supposed to pervade the constitution, but not expressed in words, nor
upon any loose and vague interpretation of the instrument. (Id. 202, 204.) The presumption is
that an act of the legislature is valid, and it must be enforced unless restrictions upon the
legislative authority can be pointed out in the constitution, and the case shown to come within
them. (State v. Humboldt Co., 21 Nev. 235.) So, even if we agreed with the plaintiff
concerning the oppressive character of this law (which we do not), we should be powerless to
give him a remedy upon any such grounds.
4. But coming to such specific objections to the law as we think it necessary to notice, we
find nothing in the constitution which indicates to our minds that it was intended by that
instrument to confer upon county assessors the sole power to assess property, nor upon
county commissioners the sole right to equalize the valuation thereof. Neither do we find any
implied prohibitions in that instrument against the creation by the legislature of the board
provided for in this act. As at present advised, we are of the opinion that these matters are
proper subjects for the regulation and control of the lawmaking body.
5. A number of the points made by the appellant are founded upon a misapprehension of
the scope and meaning of article 3 of the constitution. That article divides the state
government into three great departments, and directs that no person charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted. As will be noticed, it is the state government as created by the constitution which
is divided into departments. These departments are each charged by other parts of the
constitution with certain duties and functions, and it is to these that the prohibition just
quoted refers. For instance, the governor or the judiciary shall not be members of the
legislature, nor shall they make the laws under which we must live. But this is quite a
different thing from saying that no member of the executive or judicial departments shall
exercise powers in their nature legislative, but which are not particularly charged by the
constitution upon the legislative department; such as where the board of commissioners for
the insane makes rules for the management for the asylum, or a court establishes rules for the
transaction of the business coming before it. It would be impossible to administer the state
government were the officers not permitted and required, in many instances, to discharge
duties in their nature judicial, in that they must exercise judgment and discretion in
determining the facts concerning which they are called upon to act, and in construing the laws
applicable to them. Hence we see no constitutional objection to members of the executive
branch being charged with the duty of assessing property, or of acting upon the board of
equalization, for neither of these functions have been, either expressly or impliedly, placed by
the constitution upon either of the other departments; for certainly, although in equalizing
valuations a board may act in a judicial capacity, the constitution nowhere contemplates that
the judicial department, as organized by article 6, shall discharge that duty. This construction
is supported by two well-considered cases decided by the supreme court of California (People
v. Provines, 34 Cal. 520; Staude v. Commissioners, 61 Id. 313), where the matter will be
found elaborately discussed. (See also, Story, Const. Sec. 525, and Mayor, etc., v. State, 15
Md. 376, 455.)
6. We need not inquire whether the governor can be constitutionally required to act as a
member of the board. Among several reasons for this a sufficient one is that he is at least a de
facto member, and his title to the office cannot be collaterally questioned. As to the public,
his acts are valid. (Mecham, Pub. Off. Sec. 330; Walcott v. Wells, 21 Nev. 47.)
7. The act does not violate article 10 of the constitution, which requires a uniform and
equal rate of assessment and taxation. All property, whether assessed by the board or by the
county assessors, must be assessed at its actual cash value, and there is no reason why this
value may not be as accurately determined by several different men and boards as by one. In
fact, it might sometimes be done much better, as one man, although an expert upon the value
of horses and farms, might know but little of railroads or other property. If not, this would be
an equally good argument against the system of separate county assessors and boards, and
require all the property in the state to be assessed and equalized by one man or one board. All
that is required is a uniformity of taxes, and not a uniformity in the manner of assessing or
collecting them. (San Francisco & N. P. R. Co. v. Board of Equalization, 60 Cal. 12, 30.)
8. Under the act the property of corporations is taxed the same as the property of
individuals, so it is not in conflict with section 2 of article 8 of the constitution. The act
provides that all railroads shall be assessed by the state board, and all other property by the
county assessors, and this applies, of course, without regard to whether the railroad or other
property is owned by corporations or individuals. The fact that railroads are generally owned
by corporations cuts no figure in the argument, for they may be, and in one quite notable
instance in this state have been, owned by individuals. All that this section of the constitution
probably means is that the property of corporations shall be subject to the same taxation as
the property of individuals, and no one can claim that this act either exempts them from their
share of the public burdens or unfairly discriminates against them. They pay the same rate of
taxation that individuals pay upon what is, theoretically at least, the same valuationthe cash
value of their property. Perhaps if the act applied only to corporations, it might still be valid,
but it is unnecessary to consider this.
9. This brings us to the further objection that the act places arbitrary power in the hands
of the board, and thus enables them to show favoritism.
arbitrary power in the hands of the board, and thus enables them to show favoritism. Any
assessor or board of equalization may do this, and it is consequently no sufficient argument
against the constitutionality of this law. There is no more probability that this board will do so
than that it would be done by county boards of equalization. In all systems of government
power must be lodged somewhere. Wherever it is placed it may be abused, and consequently
this is no sufficient reason for denying its existence in a particular instance. Such abuse, if
sufficiently gross, might subject the offenders to removal from office, and they are
answerable politically to their constituents.
10. It is next said that this is a special law for the assessment and collection of taxes, and
consequently in conflict with section 20 of article 4 of the constitution, forbidding such
legislation. This has been, perhaps, the most serious objection made to the validity of
legislative acts creating state boards of assessors and equalization, but it has now been so
often raised and overruled that there is but little more to be said about it. It is founded upon a
misapprehension of what is meant by the term special law, as used in the constitution. That
is well defined, by Mr. Justice Paxson in Wheeler v. Philadelphia, 77 Pa. St., 338, 348, where
he said: Without entering at large upon the discussion of what is here meant by a local or
special law,' it is sufficient to say that a statute which relates to persons or things as a class is
a general law, while a statute which relates to particular persons or things of a class is special
and comes within the constitutional prohibition. * * * For the purpose of taxation real estate
may be classified. Thus, timber lands, arable lands, mineral lands, urban and rural, may be
divided into distinct classes and subject to different rates. In like manner other subjects,
trades, occupations and professions may be classified, and not only things, but persons, may
be so divided.
The question of what constitutes a special law within the meaning of the constitution has
often been before this court, and the principles laid down in the various decisions show
clearly that this act is not open to that objection. It is general because it applies to all railroads
within the state, which constitute a distinct class or species of property, concerning which it
was proper to adopt a different plan of assessment from that applicable to other kinds.
applicable to other kinds. (Youngs v. Hall, 9 Nev. 212, 218, 225; State v. Irwin, 5 Nev. 111,
120; ex parte Spinney, 10 Nev. 323; State v. California M. Co., 15 Nev. 234, 248, 256; State
v. Boyd, 19 Nev. 43.) Railroads now constitute a large and important part of the property of
our state, entirely distinct from other kinds, and requiring many laws and regulations for their
management and control, specially applicable to them. Good reasons for a change existed in
the abuse of the former methods of assessment, whereby, although there was no possible
difference of value, a road was sometimes assessed at twice the figure in one county that it
was in an adjoining county. Such glaring injustice, either to the road or to the people, called
for a remedy, and in providing for its assessment by the state board the legislature has simply
applied the same principle of classification that it might apply to any other distinct species of
property. To be sure, the same end might have been reached by simply creating a state board
of equalization with power to raise or lower individual assessments, but it would have
amounted to the same thing, and it was for the legislature to choose between the two systems,
either of which would be equally valid and efficacious. So long as classification is not based
upon an individious or unreasonable distinction with reference to the same kinds of property,
the courts cannot interfere. (People v. Henderson, 12 Colo. 369.)
In Kentucky Railroad Tax Cases, 115 U.S. 321, where the validity of a quite similar law
was under consideration, the court said: But there is nothing in the constitution of Kentucky
that requires taxes to be levied by a uniform method upon all descriptions of property. The
whole matter is left to the discretion of the legislative power, and there is nothing to forbid
the classification of property for purposes of taxation and the valuation of different classes by
different methods. The rule of equality, in respect to the subject, only requires the same
means and methods to be applied impartially to all the constituents of each class, so that the
law shall operate equally and uniformly upon all persons in similar circumstances. There is no
objection therefore to the discrimination made as between railroad companies and other
corporations in the methods and instrumentalities by which the value of their property is
ascertained. The different nature and uses of their property justify the discrimination in this
respect which the discretion of the legislature has seen fit to impose.
islature has seen fit to impose. * * * The right to classify railroad property, as a separate class,
for purposes of taxation, grows out of the inherent nature of the property, and the discretion
vested by the constitution of the state in the legislature, and necessarily involves the right, on
its part, to devise and carry into effect a distinct scheme, with different tribunals in the
proceeding to value it. We deem this language entirely in point in this case, although in
some respects there is a difference between the constitution of Kentucky and our own. The
following cases are also more or less applicable and support our conclusions: Franklin Co. v.
Railroad Co., 12 Lea, 521, 534; St. Louis, etc., Ry. Co. v. Worthen, 52 Ark. 529, 535; State
Railroad Tax Cases, 92 U.S. 575; Cummings v. Bank, 101 U.S. 153; Spaulding v. Hill, 86
Ky. 656; Dubuque v. Railroad Co., 47 Iowa 196.
11. It is also said that the act is special because it authorizes the board to equalize the
assessment of all other classes of property except railroads, but denies that right as to them.
Perhaps this could be admitted and yet the constitutionality of the act successfully
maintained, but we deem it unnecessary to do so. A careful examination of the law convinces
us that it was the intention of the legislature that the board should equalize the valuation of
railroads, as well as other property. The argument to the contrary is based upon the reading of
section 12 of the act, which, it is contended, only authorizes the board to equalize railroad
assessments where the owner is dissatisfied. As, where the valuation is too low, he would not
be likely to apply for any change, this construction supports the contention. The wording of
the section gives some color to this view, but taken altogether, we think it clear that such was
not the intention of the act. Such a construction would be absurd, and hence should, if
possible, be avoided. The power to increase the assessment is expressly given, but it is a lame
and impotent conclusion to suppose that this was intended only to be done where the owner
made complaint, which it is reasonably certain he never would do. Boards of equalization are
created to correct injustice and inequalities in the assessment of property, and where they
have jurisdiction of property, and in some cases may lower the valuation thereon, it should
require very clear language to lead us to the conclusion that it was not intended, no matter
what mistake had been made, that they should also increase it.
should also increase it. The very fact of the creation of the board signifies something broader
than this. There never was much reason for holding, even under the general revenue law, that
there must be a complaint to authorize a board to review an assessment, but there is less
under this act. The common-sense view of the matter seems to have been taken by the
supreme court of Arkansas in Pulaski County Board of Equalization Cases, 49 Ark. 518, 527.
We are of the opinion that the act of 1891, creating this board, is in all respects constitutional
and valid.
But the only decree that should have been entered in the case was one of dismissal, and in
favor of defendant for his costs of suit. Instead of that, judgment was rendered in his favor for
the entire tax and penalties. For this error the judgment must be reversed, with instructions to
the lower court to proceed in accordance with this opinion.
____________
21 Nev. 401, 401 (1893) Ranft v. Young
[No. 1368.]
C. C. RANFT, Appellant, v. GEORGE YOUNG, Respondent.
Attachment ProceedingsDissolution of AttachmentVoid and Non-Appealable Order.Under Sec. 3160
(Gen. Stats.), providing that if a defendant in attachment recover judgment against the plaintiff, all property
attached remaining in the sheriff's hands, shall be delivered to the defendant, the order of attachment
dissolved and the property released therefrom, a judgment for defendant vacates the attachment, and an
order of the court refusing to vacate and dismiss such attachment is a nullity and is not appealable.
IdemPending of New Trial.The fact that there was a new trial pending did not tend to keep the attachment
in force.
IdemRemedy of DefendantIn such case defendant's remedy was a proceeding against the sheriff, on his
refusal to deliver the property to recover it or its value.
Peter Breen and Rives & Judge, for Appellant.
I. The language of the statute (Gen. Stats. Sec. 3160) made it imperative upon the court to
grant the order asked for vacating and discharging the attachment. In California, under an
identical statute, the supreme court has held that a judgment in favor of defendant
operates as a dissolution of the attachment and gives the defendant the absolute control
and right to dispose of the property relieved of any claim or lien.
21 Nev. 401, 402 (1893) Ranft v. Young
identical statute, the supreme court has held that a judgment in favor of defendant operates as
a dissolution of the attachment and gives the defendant the absolute control and right to
dispose of the property relieved of any claim or lien. (O'Connor v. Blake, 29 Cal. 312;
Loveland v. Mining Co., 76 Cal. 562.)
R. M. Beatty and Thos. Wren, for Respondent.
(No brief on file.)
We learn from the record in this case that on the 6th day of May, 1892, the respondent
commenced her action, and caused a writ of attachment to be issued, under and by virtue of
which the sheriff of Eureka county levied upon and took into his possession property of the
defendant of the value of one thousand eight hundred dollars. That on the 13th day of August,
1892, the said cause was tried, and judgment rendered that the plaintiff take nothing by her
action, and that the defendant have judgment for his costs. On the 23d day of August, 1892,
the defendant, after giving notice, moved the court to dismiss, discharge and vacate said
attachment; but this the court refused to do, holding that the said writ was a valid and
subsisting writ and still in full force and effect. From this order the defendant appeals.
Is this an appealable order? We think not. Appeals from orders dissolving or refusing to
dissolve an attachment are provided for by Stat. 1887, p. 91; but, from the view we take of the
case, there was no attachment in existance [existence] in this case on the 23d day of August,
1892. The attachment had been discharged by virtue of the judgment of the court in the case
in which the writ issued.
Section 3160, Gen. Stat. reads: If the defendant recover judgment against the plaintiff,
any undertaking received in the action, all the proceeds of sales and money collected by the
sheriff, and all the property attached, remaining in the sheriff's hands, shall be delivered to the
defendant or his agent, the order of attachment shall be discharged and the property released
therefrom. Attachment proceedings are purely statutory, and must throughout conform to the
statutory requirements. As we have already seen, the judgment in favor of the defendant by
operation of the statute dissolved the attachment without any order of court.
21 Nev. 401, 403 (1893) Ranft v. Young
defendant by operation of the statute dissolved the attachment without any order of court.
(Drake, Attachm. Sec. 413; Wap. Attachm. p. 438; Wade Attachm. p. 562, Sec. 294; Brown
v. Harris, 2 G. Greene, 507; O'Connor v. Blake, 29 Cal. 315; Suydam v. Huggeford, 23 Pick.
470; Clap v. Bell, 4 Mass. 100; Loveland v. Mining Co., 76 Cal. 564; Harrow v. Lyon, 3 G.
Greene, 157; Higgins, Cobb & Co. v. Grace, 59 Md. 374; Johnson v. Edson, 2 Aiken, 302;
York v. Sanborn, 47 N. H. 404; Littlefield v. Davis, 62 N. H. 492; Blynn v. Smith, 4 N. Y.
Supp. 306.)
From the moment the judgment was rendered the attachment was dissolved, the lien
created by it was vacated, and the property released from the custody of the law; and upon the
refusal of the sheriff to surrender the property, the defendant's remedy was by proceedings
against the sheriff for the property, or the value thereof.
When property is attached to secure the judgment which the plaintiff may recover, the
sheriff acquires a special property in the chattels, defeasible by the plaintiff failing in his
action. The general property remains in the defendant, and if judgment is rendered for him in
the suit, the attachment is ipso facto dissolved. The special property acquired by the sheriff
ceases, and if he detains the chattels after demand he is answerable in an action of trover.
(Anderson v. Land, 32 Pac. Rep. 107; Clap v. Bell, Johnson v. Edson, York v. Sanborn and
Littlefield v. Davis, supra; and Drake, Attachm., Sec. 426.)
The fact that there was a motion for a new trial pending did not tend to keep the
attachment in force. There is no provision in our statute authorizing the sheriff to retain the
property after judgment in favor of the defendant was enter. (Loveland v. Mining Co., 76 Cal.
564; Drug Co. v. Peacock, 42 N. W. Rep. 298; McReady v. Rogers, 1 Neb. 129; Drake,
Attachm. Sec. 426; Brown v. Harris, 2 G. Greene, 506; Clap v. Bell, 4 Mass. 100.)
The writ of attachment was functus officio on the 23d day of August, 1892. Therefore, the
order of the court made and entered on that day was irregular and absolutely void, and the
defendant has mistaken his remedy.
The appeal is dismissed, and it is so ordered.
____________
21 Nev. 404, 404 (1893)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
APRIL TERM, 1893.
____________
Volume 21
____________
21 Nev. 404, 404 (1893) National Bank v. Kreig
[No. 1374.]
FIRST NATIONAL BANK OF WINNEMUCCA, Respondent, v. GEORGE KREIG,
ISABELLA SLOAN and MARY S. KREIG, Appellants.
National BanksTaxation.National banks are only subject to taxation upon the shares of stock owned by the
shareholders therein, and upon their real estate. Mortgages held by such banks are not subject to taxation.
Absolute Deed, When a Mortgage.An absolute deed made by the owner of property for the purpose of
securing money due to third persons, in connection with a written acknowledgment by the grantee that he
holds it for that purpose, is a mortgage.
MortgageReconveyance.Where property so held is deeded back to the grantor, with the consent of the
beneficiaries, the lien of the mortgage is lost, and such consent need not be in writing.
Appeal from the District Court of the State of Nevada, Humboldt county.
The facts deemed material to the decision of the case are as follows: The property in
controversy, together with a large number of cattle and horses, was originally owned by
Isabella Sloan and her two children, James Sloan and Mary S. Kreig, wife of George Kreig,
but prior to July 25, 1889, with unimportant exceptions, it had all been conveyed to James,
who then owed his mother thereon about twenty-three thousand dollars, and his sister about
eleven thousand dollars, and was largely indebted to the First National Bank, plaintiff herein.
On that date defendant George Kreig purchased the property for eighty thousand dollars,
assumed James' indebtedness to the parties mentioned, and borrowed more money from the
bank, so that he owed the latter about forty thousand dollars. To secure these various sums,
for which he had given notes, Kreig made an absolute deed of the property to George S.
Nixon, cashier and managing agent of the plaintiff, who gave back to Kreig a writing
certifying that the deed was executed simply as security for the payment, first, of the money
due the bank; next, that due Mrs. Sloan; and then, that due Mrs. Kreig. The notes to the bank
became due that fall, but Kreig was unable to raise the money to pay them, and applied to
Nixon to help him do so, as did Mrs. Sloan. Nixon ascertained that twenty-five thousand
dollars could be borrowed upon a mortgage to be made by Kreig and wife upon the whole
property, provided the title was found to be perfect in them. Nixon testified that he explained
this to all the parties, and told them that the title would have to be placed back in Kreig; that
all consented to its being done, and upon this understanding the money was obtained, the
mortgage given and he made a deed of all the property back to Kreig, who promised to return
the defeasance made by Nixon July 25, 1889, but failed to do so, and Nixon forgot about it.
Kreig still owed the bank upon his note a balance of two thousand four hundred dollars, but
the note was surrendered and it was charged to his open account. By July 28, 1890, this had
increased to seven thousand six hundred and forty-six dollars, for which the bank took a
mortgage upon the property. On August 14, 1891, the mortgage was renewed, and this action
is brought to foreclose the last-named mortgage. Over fifty thousand dollars worth of the
cattle and horses perished during the winter of 1SS9-90.
thousand dollars worth of the cattle and horses perished during the winter of 1889-90. Mrs.
Sloan was made a party, as claiming some interest in the property, and Mary Kreig became a
party at her own request. Mrs. Sloan's and Mrs. Kreig's answers set out the various
transactions between the parties, alleged that the plaintiff's mortgage was fraudulent and void
as to them, that Nixon's deed to Kreig was made without their consent, and asked that it be
decreed that they still held a lien upon the property to secure the sums due them from Kreig,
and that the lien be foreclosed and the property sold. The court rendered a decree in favor of
the plaintiff, and directed a sale of the property to pay the plaintiff's mortgage.
Robert M. Clarke, for Appellants.
I. The money at interest secured by plaintiff's mortgage was subject to taxation (Gen.
Stats. of Nev. Sec. 1081) unless plaintiff was exempt from the payment of such tax because
of being a national bank. The decision of this court in State v. National Bank, 4 Nev. 348,
should not be followed, as it is clearly in conflict with the decisions of the supreme court of
the United States. (McCullough v. Maryland, 4 Wheat. 316; Osburn v. Bank of United States,
9 Wheat. 738; Railroad Co. v. Peniston, 18 Wall. 5; National Bank v. Commonwealth, 9
Wall. 353; National Bank v. City of Newark, 39 N. J. L. 380, State v. C. P. R. R. Co., 10 Nev.
47.)
II. Plaintiff's mortgage was made and received with intent and for the purpose of
defrauding the revenue and avoiding taxation, and for this reason it is illegal and cannot be
enforced. (Drexler v. Tyrrell, 15 Nev. 114; Lowery v. Erskine, 113 N. Y. 52; Coolie on
Taxation, 299, note 4; 2 Parsons on Contracts, 260.)
III. The deeds, though absolute in form, were in fact deeds of trust, and were given and
received with the understanding that they were security for debt.
I. If the evidence and all of the facts and circumstances show that any trust was ever
created under either of the trust deeds in favor of Isabella Sloan and Mary S. Kreig, it was
waived and destroyed by their own acts.
II. Both Isabella Sloan and Mary S. Kreig are estopped from claiming anything in this
action because of their affirmative acts, acquiescence and their silence.
from claiming anything in this action because of their affirmative acts, acquiescence and their
silence.
III. Money at interest secured by mortgage, held by national banks, is not subject to state
taxation. (State v. National Bank, 4 Nev. 338.)
The defendants plead that the mortgage to the plaintiff of July 28, 1890, was canceled,
marked satisfied upon the records, and the new mortgage of August 14, 1891, taken for the
purpose of escaping taxation thereon, and for this reason it is claimed that the latter mortgage
is void, under the authority of Drexler v. Tyrrell, 15 Nev. 114, upon the ground that it was
taken and made for the purpose of defrauding the revenues of the state of Nevada. To this it is
replied that the mortgage, being the property of a national bank, was not subject to state
taxation, and it seems admitted that if not, there could be no fraud in attempting to escape
such taxation, which would be sufficient to defeat the mortgage.
In State v. First National Bank of Nevada, 4 Nev. 348, it was held that such mortgages
were not subject to state taxation. The defendants, however, contend that this decision was
erroneous, and ask us to overrule the doctrine there announced. But we are of the opinion,
aside from that case, that it is now well settled by the decisions of the supreme court of the
United States, which in such matters is the final arbiter, that national banks are only subject to
state taxation upon their real estate, and upon the shares of stock in the bank owned by the
stockholders. (Talbot v. Silver Bow County, 139 U.S. 438; People v. Weaver, 100 U.S. 539;
Rosenblatt v. Johnston, 104 U.S. 462; Covington City Nat. Bank v. City of Covington, 21
Fed. Rep. 484; City of Carthage v. National Bank, 71 Mo. 508; National Bank v. The Mayor,
62 Ala. 284; Pittsburg v. National Bank, 55 Pa. St. 45.) Such being the case, the matter is not
now open for discussion in the state courts, and it would be useless for us to consider it
further.
2. The deed made by Kreig to Nixon was merely to secure the money due the bank, to
Mrs. Sloan and to Mrs. Kreig, and amounted simply to a mortgage. Taking the deed and the
defeasance made by Nixon together, this is perfectly clear. If the money was paid, the
property would revert to Kreig; if not paid the only remedy of the parties would be an
action for foreclosure, the same as upon any other mortgage.
the money was paid, the property would revert to Kreig; if not paid the only remedy of the
parties would be an action for foreclosure, the same as upon any other mortgage. (Danzeisen's
Appeal, 73 Pa. St. 65; Harper's Appeal, 64 Pa. St. 315; Steinruck's Appeal, 70 Pa. St. 289;
Stephens v. Allen, 11 Or. 188; Brumfield v. Boutall, 24 Hun. 451; 2 Perry, Trusts, Sec. 602;
Pom. Eq. Jur. Secs. 1192, 1196.) It is immaterial that it was made to a third person, instead of
to the beneficiaries, and this fact does not change the nature of the security. (2 Perry, Trusts,
Sec. 602, et seq.) The transaction was quite different from that of a deed of trust authorizing
the trustee to dispose of the property, either to raise a fund or to pay a particular debt, which
in California has been held to be a trust and not a mortgage (Koch v. Briggs, 14 Cal. 256);
although the weight of authority is the other way. (Jones, Mortg. Sec. 1769.)
Being simply a mortgage, which in this state amounts merely to an equitable lien upon the
property, it could be released by parol. (Ackla v. Ackla, 6 Pa. St. 228; Howard v. Gresham, 27
Ga. 347; Griswold v. Griswold, 7 Lans. 72; Southerin v. Mendum, 5 N. H. 420; Leavitt v.
Pratt, 53 Me. 147; Wallis v. Long, 16 Ala. 738; 2 Reed. Stat. of Frauds, Sec. 453; 3 Pom. Eq.
Jur. Sec. 1183.) It follows that, if Mrs. Sloan and Mrs. Kreig consented to Nixon's deeding
back to Kreig, the mortgage was so released, for Kreig thereby became the holder in his own
right, of both the legal and equitable title to the property, free from any incumbrance. They
thereby waived any lien which they had held upon it, and thereafter Kreig owned it, the same
as he owned any other property that had never been incumbered, and could sell or mortgage
to others at his pleasure.
The substance of the findings in the case is that they did so consent. This is supported by
Nixon's testimony and by the conduct and declarations of the parties, which are also
competent evidence, and from which alone, if sufficient, it might be inferred that the
agreement was made. (Ackla v. Ackla, 6 Pa. St. 228.) Nor are we able to say that the
testimony supporting this finding is not clear and satisfactory. Taking it altogether, it seems
reasonably certain that they did understand that Nixon was about to convey the property back
to Kreig, that the effect of this would be to leave them without security upon the property, and
that with this knowledge they consented to its being done.
done. There is no evidence of any fraud, deception, or over-reaching upon the part of the
representatives of the bank. The most that can be said is that they drove some rather hard
bargains upon the necessities of these people, whose misfortunes came about through no fault
of their own, but there is very little to show that all the transactions were not open, well
understood and freely consented to by the defendants. Kreig owed money which was a first
lien upon his property, and which had to be paid. If not paid, and the property was sacrificed,
there would be nothing with which to pay what he owed his wife and her mother, and nothing
left for him. They were as much interested in obtaining this money as Kreig was himself, and
the situation forced them to do whatever was necessary to be done in order to raise it. A full
statement of the testimony would serve no useful purpose, and it is therefore omitted.
Kreig being the absolute owner of the property on August 14, 1891, was, of course, at
liberty to mortgage it, and we can see no reason why the mortgage then made by him is not
legal and binding.
The judgment and order refusing a new trial are affirmed.
____________
21 Nev. 409, 409 (1893) Nev. Central v. District Court
[No. 1370.]
THE NEVADA CENTRAL RAILROAD COMPANY, Petitioner, v. THE DISTRICT
COURT OF LANDER COUNTY, Respondent.
PracticeJustice CourtAdjournment.Where by consent of parties a case in a justice's court is adjourned for
more than ten days, the undertaking provided for by section 3565, Gen. Stats., is not required, and a
dismissal of the action for the reason that such undertaking has not been given, is error.
IdemNotice of Appeal.Where the notice of appeal properly describes the judgment from which the appeal is
taken, the addition of other words indicating that the appeal is taken from the order dismissing the action,
on which order the judgment is founded, should be treated as surplusage, and they do not invalidate the
appeal.
(Murphy, C. J., dissenting.)
IdemMandamusDismissal of Action.Where a justice has dismissed an action, a writ of mandamus will
not lie to compel him to proceed and try the action, although such dismissal was error.
IdemCertiorari, When Will Not Lie.A writ of certiorari will not lie where there is an appeal.
IdemAppeal from Improper Judgment of Dismissal.An appeal will lie from a judgment rendered in a
justice's court on an order improperly dismissing the action. Especially is that the case where both issues of
law and issues of fact had been made in the justice's court.
Application for a writ of prohibition.
D. S. Truman, for Petitioner.
I. The district court never had any jurisdiction in the matter by appeal, but if the dismissal
was erroneous it was an excess of jurisdiction and either a writ of certiorari or mandamus was
the proper remedy for plaintiff to employ.
II. An appeal from a justice's court will not lie until a case has been tried upon its merits.
(Martin v. District Court, 13 Nev. 91.)
James F. Dennis, for Respondent.
I. The appeal to the district court was properly taken. Issues had been joined in the
justice's court. The justice had dismissed the action and an order dismissing an action is a
final judgment. (Dowling v. Polack, 18 Cal. 625; Leese v. Sherwood, 21 Cal. 164; Zoller v.
McDonald, 23 Cal. 136; McLeran v. McNamara, 55 Cal. 510; People v. Pfeiffer, 59 Cal. 89;
Hayne on New Trials and Appeals, 555.)
II. Mandamus would not lie to the justice court to compel it to try the case after dismissal
because there was a plain, speedy and adequate remedy at law, that of appeal, which was
invoked. Certiorari would not lie, because every court has a right to pass upon its jurisdiction
and to hear and determine a motion to dismiss. Error in judgment in respect to a question
which a court is authorized to determine does not constitute an excess of jurisdiction.
(Phillips v. Welch, 12 Nev. 158.)
In the action of J. F. Dennis v. The Nevada Central Railroad Company, pending in the
justice's court of Austin township, Lander county, the justice being of the opinion that he had
lost jurisdiction of the case by reason of having granted, although by consent of both
parties, a continuance for more than ten days without requiring the undertaking provided
for in Gen. Stat., Sec.
jurisdiction of the case by reason of having granted, although by consent of both parties, a
continuance for more than ten days without requiring the undertaking provided for in Gen.
Stat., Sec. 3565, dismissed it, and rendered judgment against the plaintiff for costs. It is
sufficient upon this point to say that this was error, because when both parties consent to an
adjournment of the trial no undertaking is required. A motion by the plaintiff to retax the
costs was overruled by the justice, and the plaintiff appealed to the district court of Lander
county. The notice of appeal stated that the appeal was taken from the judgment, properly
describing it, and then added: This appeal is taken on the order dismissing the action on the
motion of defendant that the said court had lost jurisdiction of the same, on questions of both
law and fact. An appeal can only be taken in a justice's court from a final judgment, and as
this was properly done here, the words quoted should be treated as surplusage, and they do
not invalidate the appeal.
In the district court a motion to dismiss the appeal was overruled, and the petitioner asks in
this proceeding that that court be prohibited from trying the case upon the appeal. The
application is based upon the ground that there can be no appeal from a case in a justice's
court until it has been tried upon the merits, and it is said that if the justice improperly
dismissed the action, the plaintiff should apply for a writ of mandamus to compel him to go
on and try it. But the justice having acted in the matter by dismissing the action, no matter
how erroneous the order, mandamus will not lie to compel him to proceed with the trial.
(State v. Wright, 4 Nev. 119; Floral Springs Water Co. v. Rives, 14 Nev. 431.)
It is also contended that the plaintiff's remedy is to apply for a writ of certiorari to annul
the order of the justice dismissing the action. But, under our statute, certiorari will not lie
where there is an appeal, so if there is an appeal permitted in this case, certiorari would be no
remedy. (Connery v. Swift, 9 Nev. 39.) To affirm one is to negative the other. In all the cases
cited from California where the writ was issued to annul orders improperly dismissing actions
or appeals, there could have been no appeal from the judgment of dismissal. Then, was an
appeal authorized in this case? Gen. Stat. Sec. 3603, provides that any party dissatisfied with
a judgment rendered in a justice's court may appeal therefrom to the district court of that
county.
county. No limitation is placed upon this right of appeal, and it cannot be denied that under
this section the right existed here; the only condition is that a judgment shall have been
rendered with which the party is dissatisfied, and that was the case with the plaintiff. That the
dismissal of a case is a final judgment from which an appeal will lie, has so often been
decided that a citation of authorities seems almost superfluous. (Zoller v. McDonald, 23 Cal.
136; Dowling v. Polack, 18 Cal. 625; Bowie v. Kansas City, 51 Mo. 454; Gill v. Jones, 57
Miss. 367.)
But in Sec. 3604, Gen. Stat. it is provided that upon the appeal the case shall be tried
anew; and, upon the theory that this case was not tried in the justice's court, it is said that it
cannot be tried anew, and as that is the only method of disposing of an appeal, it follows that,
notwithstanding the broad language of section 3603, there can be no appeal here. I am of the
opinion, however, that no such narrow and technical construction should be placed upon this
section. To do so is not only to override the language of the preceding section, but is to upset
a whole harmonious system, by placing too much stress upon the strict literal meaning of the
one word anewa meaning that it is apparent the legislature never intended to have. This,
it seems to me, an examination of the whole statute makes clear. After granting, by section
3603, the unlimited right of appeal already mentioned, it, of course, became necessary to
determine how the appeal should be disposed of in the district court. Should that court be
given the power to affirm or modify the judgment, or if errors were found, to reverse it for a
new trial in the justice's court, or without regard to whether errors had or had not been
committed in the lower court, should it be tried anew in the district court? The latter course
was decided upon. No matter how just the judgment of the justice may be, or how free from
errors, the case is to be tried anew in the appellate court. It was clearly the intention of the
lawmakers that after the appeal the case should be entirely disposed of in the district court,
without returning it again to the justice's court, and without regard to how the previous
judgment had been reached. Section 3604 was intended to deal alone with the mode of
procedure upon the appeal, and it seems unreasonable to suppose that it was intended therein
to place a limitation upon the right of appeal so freely given by the preceding section.
of appeal so freely given by the preceding section. So far as the justice's court is concerned,
although the merits of the action have not been passed upon, this cause has been tried; the
justice has tried all that in his judgment there was to be tried; he has disposed of it by
rendering judgment for the defendant; that is the end of the case in his court. After that the
right of appeal exists, and if exercised, the cause is then entirely in the district court. By this
method of procedure one appeal disposes of the whole controversy, when if we were to adopt
the petitioner's views, a writ of certiorari would first be necessary to annul the erroneous
order of the justice, after which would follow a trial in that court, and then without regard to
the result there an appeal to the district court would still be in order. If a correct and proper
judgment will not bar an appeal, to be followed by another trial, common sense requires that
an erroneous one should not have that effect. In my judgment the view that an appeal will lie
in such a case is not only supported by the statute, but is required by every consideration of
expediency and economy.
Owing to the difference between the California statute and ours, the cases from that state
are but little in point, but as far as they are, they support the views here expressed. In that
state appeals from a justice's court are allowed either upon questions of law or questions of
fact. If taken upon questions of law, the appellate court can affirm or modify the judgment, or
reverse the case for a new trial in the justice's court; but if taken upon questions of fact, the
only method of disposing of the appeal is to try the case anew. Under this statute it is held
that there can be no appeal upon questions of fact until they have first been tried in the
justice's court. This is perhaps in accordance with the intention of their statute, for until a
question of fact has been tried, there can be no occasion to appeal from it, and all errors of
law are to be corrected by an appeal upon questions of law. But not so with us. Our statute
allows but one appeal, and by that one appeal both questions of law and questions of fact are
to be taken to the higher court, and then all errors are to be disposed of by retrying the case.
Under the California statute, in such a case as the one in hand, the error would be corrected
by an appeal upon a question of law. The courts of that state have never held, as petitioner's
counsel seems to suppose, that there can be no appeal in such cases; but only that there can
be no appeal upon questions of fact.
that there can be no appeal upon questions of fact. (Ketchum v. Superior Court, 65 Cal. 494;
Myrick v. Superior Court, 68 Cal. 98.)
Nothing contrary to the conclusion here announced was decided in Martin v. District
Court, 13 Nev. 85. It was there held that where the defendant had made defaultwhere no
issue either of law or fact was made in the justice's courtthere could be no appeal, because
there was nothing to try upon the appeal. But here an answer was filed and issues of fact
made in the justice's court, besides the issue of law as to whether the action was properly
dismissed. In fact, to some extent that case is against the position of the petitioner that there
can be no appeal until after the merits have been tried in the justice's court, for it was
expressly stated that a party could appeal upon issues of law, and those issues would be
triable in the district court. While for these reasons it is unnecessary to consider the case
further, it may well be doubted as to whether a too contracted view of the statute was not
there taken. An appeal is the most direct, expeditious and simple remedy for any errors in the
justice's court that can be suggested, and, unless the statute clearly prohibits it, such a
construction should be adopted as will advance that remedy instead of unnecessarily
hampering it, to the end that cases may be disposed of upon their merits instead of upon
technicalities. These considerations have compelled the California courts, contrary to their
first rulings (People v. County Court, 10 Cal. 19), to hold that other issues than those made in
the justice's court may be made and tried in the appellate court. (Kitts v. Superior Court, 62
Cal. 203; Ketchum v. Superior Court, 65 Cal. 494.)
If our statute will not permit of such construction, it should be so amended that it will, for
frequently, without this right, the merits of a case can never be reached or determined. The
writ must be dismissed. It is so ordered.
Murphy, C. J., concurring.
I concur in the judgment of dismissal. The fact that a court might act irregularly in matters
in which it has jurisdiction over some of the questions involved in the appeal will not warrant
the issuance of the writ of prohibition. Such a writ cannot be used to prescribe what a court
shall or shall not consider in a matter before it. To do so would be to interfere with the
judicial functions of the court.
judicial functions of the court. (High, Extr. Rem. Sec. 772.)
I cannot concur in the conclusion reached by Justice Bigelow that certain words written in
the printed form of the notice of appeal should be disregardedthe court acquires its
jurisdiction through the notice of appealnor that the district court can proceed and try the
case on any other issues except such as were passed upon in the justice's court.
For the foregoing reasons, I concur in the judgment of dismissal, but dissent from the
views expressed on the other points.
____________
21 Nev. 415, 415 (1893) Lander County v. Humboldt County
[No. 1377.]
LANDER COUNTY, Appellant, v. HUMBOLDT COUNTY,
Respondent.
Indigent PoorLiabilities Between Counties for Support.The liability of a county for the relief and support of
its indigent poor is purely statutory, and to render one county liable for such relief granted by another
county to one of the former's indigent residents, the case must come fairly within the statute.
IdemNature of County's Liability.There are none of the elements of a contract, express or implied, in a
demand for the relief or support of the poor. The liability exists only in pursuance of the positive provisions
of the statute.
IdemPauper.A county in this state is only liable for relief furnished by another county to one of its indigent
residents where such indigent is a pauper.
IdemWho Not a Pauper.A laboring man who has always been able to make a living, and who, until his last
sickness, had never had occasion to ask or receive charity, is not a pauper, although without money or
property with which to pay the expenses of that sickness.
Appeal from the District Court of the State of Nevada, Elko county.
D. S. Truman, for Appellant.
I. Respondent is clearly liable to appellant, under the terms of the statute, for the relief
furnished by appellant to the indigent.
II. The court erred in finding that the indigent was not a pauper.
pauper. The evidence all showed that he was unable to earn a livelihood on account of bodily
infirmity, that he had no relatives to support him, that he was without means and required
relief. Under such evidence he was clearly a pauper or indigent. (Gen. Stat. Sec. 1982;
Blodgett v. Lowell, 33 Vt. 174; Charleston v. Groveland, 15 Gray 15; Goodale v. Lawrence,
88 N. Y. 513; Wallingford v. Southington, 16 Conn. 431; Poplin v. Hawk, 8 N. H. 305.)
III. There is an implied contract created by reason of the relief furnished the indigent by
appellant which entitles appellant to recover the value thereof from respondent.
I. The obligation or duty of a county to relieve and support its paupers is purely statutory,
and to make a county liable the case must fall within the liability created, pursuant to and in
the manner prescribed by the statute. (45 N. W. Rep. 331; 24 Iowa 211; 12 Mass. 333; 14
Mass. 396; 28 Mo. 255; 8 Vt. 224.) There are none of the elements of a contract, express or
implied, in a demand for the support or relief of the poor; the liability, if any, originates solely
in the positive provisions of the statute. (47 Me. 367.)
II. The indigent was not a pauper. A person may be poor, an indigent, without money or
property, yet this does not make or constitute him a pauper. It is a duty of counties in addition
to supporting its own paupers, to furnish relief to any non-resident or any other person not a
pauper, falling sick and being without means, on complaint of any one, to give necessary aid
at the expense of the county where the indigent is taken sick.
Action by the plaintiff county to recover from the defendant county expenses claimed to
have been incurred in the care and treatment of a pauper resident of the latter county.
In Secs. 1981-1991, Gen Stat., the legislature seems to have had in mind two classes of
indigent persons who might be entitled to county aidFirst, paupers; in which class it was
apparently the intention to include poor persons who are unable to earn a livelihood in
consequence of bodily infirmity, idiocy, lunacy, or other cause, and whose disability is
likely to be more or less permanent; and, secondly, those mentioned in section 19S6 as
non-residents, or other persons not coming within the definition of paupers, who may fall
sick in any county in this state, not having money or property with which to pay for their
necessary board, nursing or medical aid.
lunacy, or other cause, and whose disability is likely to be more or less permanent; and,
secondly, those mentioned in section 1986 as non-residents, or other persons not coming
within the definition of paupers, who may fall sick in any county in this state, not having
money or property with which to pay for their necessary board, nursing or medical aid.
Section 1988 provides that for relief furnished to a pauper who is a resident of another
county, the relieving county may, under certain circumstances, recover from the county of
which the pauper was a resident, but no provision is made for a recovery for relief furnished
the class mentioned in section 1986. Then, for this kind of relief, no recovery can be had, for
the liability of a county for the relief and support of its indigent poor is purely statutory, and
to render the county liable the case must come fairly within the terms of the statute. (Hamlin
Co. v. Clark Co., 45 N. W. Rep. 329; Cooledge v. Mahaska Co., 24 Iowa 211; Mitchell v.
Inhabitants of Cornville, 12 Mass. 333; Miller v. Inhabitants of Somerset, 14 Mass. 396.)
There are none of the elements of an implied contract in such a case; the liability exists only
in pursuance of the positive provisions of the statute. (City of Augusta v. Chelsea, 47 Me.
367; Hamlin Co. v. Clark Co., supra.) The whole matter is entirely within the control of the
legislature, and the duty of aiding and supporting poor people, or of relieving those
temporarily in need of assistance, may be imposed by that body upon counties or towns in
such manner as it may deem proper.
The district court found that the indigent on whose account this claim is made was not a
pauper. The appellant assigns as error that this finding is not supported by the evidence. The
facts proven were that he was a man without a family, who for a number of years had made a
living by laboring upon ranches for others. He had no property, but seems to have earned the
ordinary wages of a laboring man, and, so far as the evidence shows, had always been able to
make a living, and had never asked for or received charity. In the fall of 1889 he came to
Battle Mountain, and while there was treated for an affection of the foot. From this place he
went to Golconda, in Humboldt county. When he arrived there he had about one hundred
dollars in money, a part of which he paid on a debt and a part for board. He remained here
some weeks, until his money was exhausted, and a friend became security for another month's
board.
board. Shortly, however, the trouble with his foot increasing, he returned to Battle Mountain
to the same physician that had formerly treated him, for further treatment, but he got no
better, and after several months died. In the beginning of this last sickness, necessary care and
treatment seem to have been furnished him upon his own credit; but subsequently, when it
was found that the case was likely to prove quite serious, those about him called upon the
county for assistance, and it is the expense then incurred by Lander county that forms the
basis of this action.
Certainly this evidence falls short of proving that this man was a pauper. He was rather of
the class mentioned in section 1986a non-resident who had fallen sick in Lander county,
not having money or property with which to pay for necessary care and medical aid. In such a
case the legislature has placed the duty of relieving the unfortunate person upon the county in
which he may be found. Under the statute it was as much the duty of Lander county to care
for him as for one of their own poor, and for such care it has no recourse against the county of
his residence. It may be supposed that in the long run the account will be equalized by
Humboldt county doing the same for one of Lander's unfortunates.
It is said, and there is some evidence to support the contention, that he did not fall sick in
Lander county but in Humboldt county, and afterwards came to Lander county, but this is
immaterial. As we have seen, the only liability that exists between the counties under our
statute is where relief is granted to a pauper; and as the indigent in this case does not come
within that class, no liability exists, no matter where he may have fallen sick or under what
circumstances the relief was furnished him.
Our statute was doubtless substantially copied from a statute of Illinois which was
construed in the case of Supervisors of La Salle Co. v. Reynolds, 49 Ill. 186, and the
distinction we have suggested as existing between paupers and persons falling sick within a
county, not having money or property with which to support themselves, fully recognized and
sustained. In Lee Co. v. Lackie, 30 Ark. 764, that court, also, held that a strong, able-bodied
young man, who hired as a laborer was not a pauper, although unable to pay for his medical
attendance while sick.
As these considerations lead us to the conclusion that the action cannot be maintained by
Lander county, it is unnecessary to consider the other assignments of error made in the record.
____________
21 Nev. 419, 419 (1893) State v. Trolson
[No. 1382.]
THE STATE OF NEVADA, Respondent, v. JOHN TROLSON,
Appellant.
Criminal LawSufficiency of Indictment.Under Stat. of 1887, p. 81, providing that any person to whom any
money, property or effects shall have been intrusted, who shall appropriate the same, or any part thereof, in
any manner, or for any other purpose than that for which the same was intrusted, shall be guilty of
embezzlement, an indictment need not allege that defendant appropriated the property willfully,
feloniously, or with intent to steal, as the offense is complete when the appropriation is made, though he
intended to afterwards replace the property taken.
IdemCriminal Intent, How Determined.The intent with which an accused person appropriates money or
property to his own use is a question of fact to be determined from the evidence in the particular case.
IdemStatutory ConstructionConstitutional Law.The Stat. of 1887, p. 81, is entitled an act to further
define and publish embezzlement. Section one defines embezzlement, and section two fixes the penalty
for a violation of section one. Held, that as the act is complete within itself, and does not conflict with the
other existing statutes relating to embezzlement and its punishment, it does not amend such statutes, and
therefore does not violate Sec. 17 of Art. IV. of the constitution, requiring each law to embrace but one
subject, which shall be expressed in the title, and that no law shall be revived or amended by reference to
its title only.
IdemImproper Defense.On the trial of an indictment charging defendant with the embezzlement of certain
money received by him as agent of an express company for transmission, the fact that the money so
received was in the safe, constitutes no defense, where defendant was short in his accounts with the
company in an amount larger than that alleged to have been embezzled.
IdemObjection to Indictment in Appellate Court.An objection to an indictment on the grounds that it does
not state facts sufficient to constitute a public offense may be taken for the first time in the appellate court,
and is not waived by a failure in the district court to make the point on demurrer or on motion in arrest of
judgment.
(Concurring opinion of Bigelow, J.)
P. Reddy, for Appellant.
I. The indictment is insufficient. The facts averred do not constitute a public offense. The
court had no jurisdiction of the subject matter. The act of 1887, under which the indictment
was drawn, is entirely silent as to intent and there is no intent alleged in the indictment. The
act of 1887 was intended to amend the Gen. Stats. on the subject of embezzlement in which
an intent is essential. In statutory offenses there must be an evil intent, though the statute is
silent on the subject. (1 Bishop's Crim. Law Sec. 290.) Criminal intent is necessary to
constitute a crime, and without it crime can not exist. (State v. Gardner, 5 Nev. 377; State v.
O'Reilly, 4 Mo. App. 392.)
II. The act of 1887 violates Sec. 17 of Art. IV of the constitution. It is not an independent
act and does not purport to repeal any part of an existing law. It was in every sense
amendatory of the then existing definition of embezzlement, but it does not re-enact and
publish at length the law it seeks to amend. (Smales v. White, 4 Neb. 357; Earle v. Board of
Education, 55 Cal. 489; Gillispie v. City of Pittsburg, 21 Atl. Rep. 759.)
III. The objections here made to the indictment were not waived by the failure to demur or
to take the objection at the trial or in arrest of judgment. (Lemmons v. State, 4 W. Va. 755.) It
may be taken advantage of for the first time on appeal. (Mathew's and Garner's Case, 18
Gratt. 989; State v. Simms. 43 Tex. 521; Wharton on Crim. Prac. and Plead. Sec. 777; Powell
on Appellate Proced. 316, 331, 332, 335, 336.)
J. D. Torreyson, Attorney General, and William Woodburn, for Respondent.
I. A judgment in a criminal case will not be disturbed on the ground of the insufficiency
of the evidence if there is any evidence to support it. (State v. McGinniss, 6 Nev. 109; State v.
Glovery, 10 Nev. 24; State v. Huff, 11 Nev. 17; State v. Raymond, 11 Nev. 99; State v.
Crozier, 12 Nev. 300
v. Glovery, 10 Nev. 24; State v. Huff, 11 Nev. 17; State v. Raymond, 11 Nev. 99; State v.
Crozier, 12 Nev. 300.)
II. Property may be alleged in an indictment to belong to one who has a special property in
it at the time it is stolen or embezzled. (Mosely v. State, 42 Tex. 78; Langford v. State, 8 Tex.
116; State v. Nelson, 11 Nev. 337; Ex parte Ricord, 11 Nev. 287; Riley v. State, 32 Tex.
763.)
III. The act of 1887 is not an amendatory but is an independent act. Embezzlement was
not a crime at the common law, but it is purely statutory and just what the legislature sees fit
to enact. Every intendment is in favor of the constitutionality of a law.
IV. The objections that an indictment does not state facts sufficient to constitute a public
offense, and that the court had no jurisdiction to try the same, cannot be taken for the first
time on appeal. (People v. Dick, 37 Cal. 277; People v. Shotwell, 27 Cal. 401; Fleet v. State,
22 Atl. Rep. 624; State v. Moueton, 42 La. Ann. 1160; State v. Arthur, 10 La. Ann. 265.)
The defendant was indicted and charged with having embezzled the sum of one thousand
eight hundred and seventy-seven dollars and fifty-five cents, money he had received as agent
of Wells, Fargo & Co. at Virginia City, Storey county, Nevada, from one John McGrath, to be
by the said John Trolson, as such agent of Wells, Fargo & Co., forwarded to Richard Mercer,
at Los Angeles, state of California; that instead of forwarding the same, as was his duty so to
do, by the nature of his employment, he appropriated the said sum of money to his own use.
He was tried, convicted and sentenced to imprisonment in the state prison for five years.
Errors are alleged in this court, for the first time, on motion in arrest of judgment. It is
contended that the indictment is deficient in matters of substance in not charging that the
defendant appropriated the money wilfully, feloniously and with intent to steal the same.
Neither one of these words are used in the indictment. It is not disputed but what the agency
is sufficiently alleged, and that he received the money as such agent of Wells, Fargo & Co.,
and in the regular course of his employment, and that it had never been sent by Trolson to the
party for whom it was intended.
The charging portion of the indictment complained of reads as follows: That on or about
the said first day of December, A. D. 1892, and before the finding of this indictment, the said
John Trolson, having said money, and coins, and each of them in his possession as such agent
of said corporation as aforesaid, and being then and there intrusted therewith as aforesaid, for
the purpose aforesaid and for no other purpose, did appropriate the said sum of money and
the said coins and each of them to his own use, for his own benefit, and did appropriate the
same and the whole thereof in a manner and for purposes other than that for which the same
were intrusted; and then and there did use the said sum of money, and the said coins, and the
whole thereof, and each of said coins for his own benefit, and did use the same, and the whole
thereof in a manner and for purposes other than that for which the same were intrusted as
aforesaid; and thereby did embezzle said sum of money, and said coins, and each of
themall of which is contrary to the form of the statute. The indictment shows who placed
the money in the defendant's hands, the purposes for which it was intrusted to him and that,
instead of carrying out said trust, he did embezzle the same.
Embezzlement is not an offense at common law, but was created by statute; therefore, in
deciding the question submitted, we must be governed by the statute of our own state. The
statute under consideration reads as follows: Any person, or any agent, manager or clerk of
any person, corporation, association or partnership, with whom any money, property or
effects shall have been deposited or intrusted, who shall use or appropriate such money,
property or effects, or any part thereof, in any manner or for any other purpose than that for
which the same was deposited or intrusted, shall be guilty of embezzlement.
In setting out a statutory offense it is sufficient to describe it in the words of the statute,
with a statement of the acts constituting the offense, in ordinary and concise language, and in
such a manner as to show that the statutory offense has been committed by the part therein
named, and to inform him as to what is intended. (State v. Logan, 1 Nev. 510; U.S. v.
Gooding, 12 Wheat. 472; People v. Gray, 66 Cal. 271; People v. Tomlinson, 66 Cal. 345;
Com. v. Bennett, 118 Mass. 451; Golden v. State, 22 Tex. App. 2; Crump v. State, 23 Tex.
App. 616; Wood v. State, 47 Ark. 492; Lowenthal v. State, 32 Ala. 5S9; State v. Wolff, 34
La.
v. State, 47 Ark. 492; Lowenthal v. State, 32 Ala. 589; State v. Wolff, 34 La. Ann. 1153;
Huffman v. State, 8 South. Rep. 28; People v. Hennessey, 15 Wend. 150; 1 Whart. Crim.
Law, 1061.) The cases are few and exceptional, said Foster, J., in Com. v. Raymond, 97
Mass. 569, in which an indictment which follows the words of the statute will be held to be
insufficient.
The word embezzle has a well defined meaning. In the Century Dictionary embezzle
is defined as the act to steal slyly; purloin; filch; make off with; to appropriate fraudulently
to one's own use, as what is intrusted to one's care; apply to one's private use by a breach of
trust, as a clerk or servant who misapplies his master's money or valuables. Webster's: To
appropriate fraudulently to one's own use, as property intrusted to one's care; to apply to one's
private use by a breach of trust, as to embezzle public money. Wharton's Law Dictionary:
Larceny by clerk, or servant, or agent; the act of appropriating to himself that which he
receives in trust for another. Anderson's Law Dictionary: Appropriation to one's own use of
anything belonging to another, whether rightfully or wrongfully in the possession of the taker;
theft. Embezzlement is a sort of a statutory larceny committed by servants and other like
persons where there is a trust reposed, and therefore no trespass, so that the act would not be
larceny at the common law. (1 Bish. Crim. Law. Sec. 567.)
As hereinbefore stated, embezzlement is a crime defined by statute, and it will not be
disputed but what it is within the power of the legislature to declare what acts would
constitute the crime and fix the punishment thereof. One of the elements that enters into the
statutory definition of embezzlement is the fiduciary or confidential relation existing between
the employer and the employee; and this is especially true with regard to agents of such
corporations as Wells, Fargo & Co., which was organized for the purpose of and is doing a
large express business, in transmitting money and other valuables to different parts of the
country, and the work connected therewith must necessarily be done by and through
confidential clerks and agents, who are intrusted with the duties of receiving, forwarding, and
the care and custody of large sums of money, valuables and property so deposited and
intrusted to said corporation, through its clerks and agents, for shipment, and in which said
corporation has a special ownership and is held responsible for the loss or miscarriage
thereof after it is once received and receipted for by its authorized agents.
ble for the loss or miscarriage thereof after it is once received and receipted for by its
authorized agents.
The legislature of 1887 had in view the nature of the business transacted by corporations
organized for banking and express companies, milling and mining companies, companies and
individuals engaged in stock brokerage. All, or nearly all, of the business had to be done by
and through agents, clerks and employees, who necessarily from the nature of their
employment were intrusted with large sums of money, valuable shares of stock and bullion.
The legislature was also aware that large sums of money and valuable shares of stock, that
had been intrusted to agents for certain purposes, were appropriated and used by such agents,
not with the intention of stealing the same, and depriving the owner of the use thereof for all
times, but with the hope and expectation of being able to save themselves from financial ruin.
If prices in the stock board turned their way, they were all right, and the money and stocks
were replaced and the owners thereof knew nothing of the matter; but, if the reverse should
happen, they were bankrupt and defaulters.
Take the case under consideration for an example. The defendant testified that he had been
in the employment of Wells, Fargo & Co. some sixteen years; that after he became a married
man, on account of sickness in his family the wages he received were not sufficient to meet
his expenses; that he commenced to use money intrusted to him in small sums; that he
speculated in stocks; that he borrowed money at different times to replace the amounts he had
taken; that his employer knew nothing of these appropriations; finally, on the 1st day of
December, 1892, he was some two thousand dollars short in his accounts. When he received
the commission mentioned in the indictment he failed to enter it on the book of the office, or
to forward the same to the party for whom it was intended, and the company knew nothing of
the matter until it was called upon to pay, and did pay, the sum charged in the indictment. He
also testified that he never intended to steal the money, but always intended to repay the same
and would have done so if he had been given time. (State v. Pratt, 11 S. W. Rep. 978.) It was
to cover cases of this kind that the legislature left out the words wilfully, unlawfully and
with intent to steal, and the word embezzled contains within itself the charge that the
defendant appropriated the money to his own use, and sufficiently designates the crime
intended to be charged.
propriated the money to his own use, and sufficiently designates the crime intended to be
charged. (State v. Wolff, 34 La. Ann. 1153.)
The counsel for appellant contends that in every crime or public offense there must be a
joint operation of act and intent, or criminal negligence; and that the words with intent to
steal should have been set forth in the indictment. The statute under consideration does not
make the criminal intent an element of the offense further than is necessarily included in the
words who shall use or appropriate such money, property or effects or any part thereof, in
any manner or for any other purpose than that for which the same was deposited or intrusted
shall be guilty of embezzlement. The language of the statute which is copied into the
indictment, is clear and plainly imports that the defendant did appropriate the money to his
own use with the intention of depriving the owner of the use thereof; and it is also clear to our
minds that neither the defendant nor his counsel could have been misled as to the offense
charged. The intent which is mentioned in the text books on criminal law as essential to
constitute a crime is not necessarily an evil or wrongful intent, beyond that which is involved
in the prohibited act. Whatever one voluntarily does he of course intends; and whenever the
statute has made that act criminal, the party voluntarily doing the prohibited act is chargeable
with the criminal intent, and the statute of 1887 does not make it necessary to allege that the
act was knowingly done, as a constituent part of the crime. (Com. v. Elwell, 2 Metc. 190;
Bish. Stat. Crimes, Sec. 250.) Bishop on Criminal Procedure (volume 1, Sec. 523) says: It is
perhaps safe to say that in all cases where a statute creates an offense, and mentions some
intent as an element therein, the indictment must follow these statutes in this particular, and
specify the intent. On the other hand, as a general proposition, if the statute is silent
concerning the intent there need be no intent alleged in the indictment. So in regard to
frequent attempts which have been made to exonerate individuals charged with disobedience
to penal laws, on the ground of good faith or error of judgment; it has been held that no
excuse of this kind will avail against the peremptory words of a statute imposing a penalty. If
the prohibited act has been done, the penalty must be paid. The offense consists in the
violation of the law, not in the intent or motive by which the party was actuated.
the law, not in the intent or motive by which the party was actuated. (Sedg. St. Const. 80, and
authorities there cited.)
In the case of State v. Combs, 27 Pac. Rep. 818, it is said: The second objectionthat the
information contains no allegation of intentcannot be sustained. The charge as stated
includes the evil intent of wrongfully appropriating money intrusted to him by Fearn for a
special purpose to his own use, and sufficiently characterizes the intent with which the
offense was committed. In State v. Noland, 19 S. W. Rep. 717, the court said: It is next
objected that the indictment is insufficient for failure to aver the intent with which the
defendant converted the money to his own use. * * * It has generally been ruled under similar
statutes that an indictment substantially charging the crime in the terms of the statute is
sufficient.
In the case of Leonard v. State, 7 Tex. App. 435, it is said: It is no part of the description
of the offense of embezzlement, as in theft, that it was taken with the intent to deprive the
owners of the property or its value, or to appropriate it to the benefit of the taker. The
indictment alleges the property to have been in the possession of the defendant, which would
to some extent excuse the pleader from a more minute description; still we are of the opinion
it was sufficiently described, for the purpose of this prosecution, to apprise the defendant as
to what he was charged with. In Halsted v. State, 41 N. J. Law, 589, Beasley, C. J., speaking
for the court, said: Nothing in law is more incontestible [incontestable] than that, with
respect to statutory offenses, the maxim that crime proceeds only from a criminal mind does
not universally apply. The cases are almost without number that vouch for this. The case of
State v. Hopkins, 56 Vt. 260, was an indictment for embezzlement, and in passing upon the
question of intent the court said: The remaining question in respect to the charge is the one
relating to the intent of the respondent in doing the alleged act. Was it necessary that he
should have acted fraudulently and feloniously, that he should have the intent to steal, that he
should have a heart void of social duty and been fatally bent on mischief? We think not.
Without the citation of further authorities, which are numerous, we are of the opinion that
there is no defect in the indictment. It is drawn in such a manner as to bring the defendant
within the provisions of the statute; the nature of his employment is set out in ordinary
and concise language;
fendant within the provisions of the statute; the nature of his employment is set out in
ordinary and concise language; that he received the money in the course of his employment;
the ownership of the money, together with his duty in relation thereto; and that he
appropriated the same to his own use, and embezzled the sameis fully, directly and
expressly alleged, without uncertainty or ambiguity; and courts will not interpolate into a
statute a corrupt motive as an ingredient of the offense of embezzlement, for when an act is
prohibited in express terms by the statute, such prohibition cannot be contracted so as to
embrace only such persons as do such act with intent to steal the money or property; nor is it
in the province of the court to say whether this law is too rigorous or not; that is for the
legislative department to determine; courts must declare the law as they find it.
The intent with which the party appropriates the money or property to his own use is a
question of fact, to be determined from the evidence in the particular case. (People v. De Lay,
22 Pac. Rep. 90; People v. Galland, 55 Mich. 628.) In the case under consideration the
question of intent was submitted to the jury in the instructions of the court, which read as
follows: The next question is that it must appear from the evidence that the defendant
appropriated this money or some portion of it to his own purpose, with the intent to deprive
Wells, Fargo & Co. of it; and that fact must be shown beyond a reasonable doubt. Therefore,
if you believe from the evidence that the defendant, John Trolson, received this sum of
money, and that he received it as the agent of Wells, Fargo & Co., for the purpose of
transmission to Richard Mercer at Los Angeles, and that instead of transmitting it as he
should have done, that he diverted it and appropriated it to his own use, and did use, and did
so with the purpose and intent of using it, that fact would constitute the crime of
embezzlement as defined by the statute, and you should convict the defendant. If, on the other
hand, you should believe the statement made by the defendant, that when he received this
money he deposited it in the safe, and although the facts be that he did not transmit it as was
his duty to do, but that he left it in the safe, and did not use it, he can not be held guilty. The
offense of embezzlement consists of two thingsthe act of taking the money, and the
intention with which it is taken. If you believe his statement that he received this money and
did not take or use it for his own purpose, or for any other purpose whatever, or any part
of it, he must be acquitted."
this money and did not take or use it for his own purpose, or for any other purpose whatever,
or any part of it, he must be acquitted. From the foregoing it is seen that the question of
intent with which the defendant appropriated the money to his own use was submitted to the
jury with the evidence in the case, and the law has been complied with.
Counsel for appellant contends that the statute of 1887, under which the defendant was
indicted, is unconstitutional, by reason of its non-conformity to section 17, art. 4, of the
constitution, which reads: Each law enacted by the legislature shall embrace but one subject,
and matter properly connected therewith, which subject shall be briefly expressed in the title;
and no law shall be revised or amended by reference to its title only, but in such case the act
as revised, or section as amended, shall be re-enacted and published at length. The law
embraces but one subject, and matter properly connected therewith, to-wit: Defining the acts
which shall constitute the crime of embezzlement, and fixing the punishment. He further
argues that it cannot be determined from the reading of the title whether it was intended as an
amendment to sections 4634 and 4635, Gen. Stat., or a supplemental act; that there is no
repealing clause.
We agree with the counsel that if the act of 1887 was an attempted amendment of the
above sections, as such it is an absolute failure; and we are confident it was not intended as a
supplemental act. Nor is it repugnant to, or in conflict with, either one of the
above-mentioned sections, and does not repeal directly or by implication the former statute
defining the crime of embezzlement, but is an independent statute complete within itself. The
legislature has, in section 1, in clear and unmistakable language set forth fully what acts shall
constitute the crime. Section 2 fixes the punishment for violation of the provisions of section
1. It is a familiar doctrine that repeals of statutes by implication are not favored. (People v.
Gustin, 57 Mich. 408, and authorities therein cited.) The court said that the question of
repeal is largely one of intent; and if the two statutes can stand, and both have effect, they
must be allowed to do so. Cooley on Constitutional Limitations (page 182) says: But
repeals by implication are not favored; and the repugnancy between two statutes should be
very clear to warrant a court in holding that the latter in time repeals the other, when it does
not in terms purport to do so."
other, when it does not in terms purport to do so. Sedgwick on Construction of Statutory and
Constitutional Law (page 354) says: But it is only in case of irreconcilable repugnancy that
this rule applies; it gives way to the fundamental principle, that the intent of the legislature is
to govern. * * * The general rule is conceded to be that where the two statutes contain
repugnant provisions, the one last signed by the governor is a repeal of one previously signed;
but this is so merely because it is presumed to be so intended by the law-making power.
Where the intention is otherwise, and that intention is manifest upon the face of either
enactment, the plain meaning of the legislative power thus manifested is the paramount rule
of construction. It is no part of the duty of the judiciary to resort to technical subtleties to
defeat the obvious purposes of the legislative power in a matter over which that power has a
constitutional right to control. Where there are two acts on the same subject, the rule is to
give effect to both if possible. (State v. Archibald, 45 N. W. Rep. 607; Bish. St. Crimes, Sec.
155, 156.)
The act of 1887 is in no wise repugnant to nor conflicts with the former laws in relation to
embezzlement. In our opinion the prosecuting officer may draw the indictment under the act
of 1887 or 1879, as the facts in the case might seem to require, and was so intended by the
legislature. The title of the act of 1887 reads: An act to further define and punish
embezzlement. We think the title is sufficient, and not misleading. The word further can
be omitted, and yet the act will have a good title. It is a well-established rule of construction
that if the act is broader than the title, that part of the act indicated by the title will stand,
while that portion of the act not indicated by the title must be rejected. Such being the case
the reverse must follow, and where the title is broader than the act, that portion of the title
which has no legitimate connection with the body of the act must be held to be surplusage
and disregarded.
It is argued that the instructions given by the court were inconsistent with one another and
misleading. The whole charge to a jury must be taken together and considered as an entirety,
and all that is required is that the law be clearly stated in accordance with the facts in the case,
that the jury may not be misled; and when the instructions state the law they must be
sustained.
must be sustained. We have carefully examined the instructions in the case, and considered
together, they are a full, clear and correct exposition of the law applicable to the facts in the
case, and the defendant was not prejudiced thereby.
The verdict of the jury is supported by the evidence. True, it is that the defendant testified
that he put the money in the safe, and that amount and more was found therein. He admitted
that he had taken and used money for speculative purposes which had been intrusted to him
as agent of Wells, Fargo & Co.; that it had been going on for three years; that on the date the
money was paid by McGrath to him to be forwarded to Mercer he was in the neighborhood of
two thousand dollars short in his accounts with Wells, Fargo & Co. It was shown at the trial
that he failed to make an entry on the books of the company of the receipt of the money, and
it was conceded that it had never been sent to Mercer by Trolson. Therefore, when the
defendant received that money, and failed to enter an account thereof in the books of the
company, and placed the money in the safe to make up his deficits in other accounts, he
diverted the said sum of money from the uses and purposes for which it was intended, and
converted the same to his own use, and by so doing he violated the law. The mere fact that
there was a large amount of money in the safe, and that the money the defendant received
from McGrath was a part of the larger amount, constituted no defense when it was shown that
he was two thousand dollars short in his accounts; that he made no entry in the books, and
failed to send the money to Mercer, as was his duty to do, were all facts and circumstances to
be submitted to the jury, from which they could determine the intent of the defendant in
appropriating the money in the manner in which he did.
We cannot close this opinion in more apt language than that used by the supreme court of
Missouri in the case of State v. Manley, 17 S. W. Rep. 801, wherein it is said: The object
and purpose of the statute was to prohibit by severe punishment the conversion of money
received by virtue of official positions and certain fiduciary relations named therein. It was
enacted with a view to prevent the growing tendency of those intrusted with public moneys
and trust funds to speculate for their own personal aggrandizement. To accomplish this
purpose it was deemed best to say to officers and trustees: You shall not convert to your own
use in any manner whatever the moneys you have received by virtue of your public trust.
vert to your own use in any manner whatever the moneys you have received by virtue of your
public trust. Your good intentions will not restore these moneys after your investment has
proved disastrous. It matters not that in many cases you honestly think you can safely invest
the public funds, and will be able to restore them when called for. They were not placed in
your hands for such a purpose. To save you from dishonor, your sureties from bankruptcy and
loss, we will deter you from attempting such a proceeding. Experience justified the legislature
in coming to this conclusion. Observation had taught that many well-meaning men had been
lured to their own disgrace and ruin by converting the trust funds in their hands to their own
private ends, and having lost, attempted to cover up their property and make good the trust
funds by false charges and vouchers.
How aptly the above covers the case under consideration may be summed up in a very few
words. The defendant was compelled to pay the sum of one hundred and seventy-five dollars
by reason of his having delivered a package of books to a party who was not entitled to
receive them. He says: I was unable to make this payment out of my salary and meet my
other expenses. I used money coming into my hands to speculate on in hopes to make my loss
good. He took the money that had been given to him by Peter for a certain purpose, to pay
the amount he had heretofore used for his own benefit, out of the money he had received from
Paul. The long looked for profits on his investments did not come to hand. On or about the
1st day of December, 1892, he had appropriated to his own use the sum of two thousand
dollars; he says, taken at different times and in small amounts. About this time he received
the Mercer money from McGrath, and instead of sending it to Mercer, as was his duty so to
do, he placed it in the safe to cover his former peculations, and with the hope that he might be
able to raise money from some source to meet the Mercer demand before he would be called
upon for the money; but such was not to be the case. Mercer, not receiving his money, made a
demand on the home office and the amount was paid and the defendant exposed. The offense
committed by the defendant comes within the words of the statute; also within its reason and
spirit, and the mischief it was intended to remedy.
To what has been said by the chief justice, I desire to add:
1. The objection to the indictment that it does not state facts sufficient to constitute a
public offense is not waived by a failure to make the point in the district court either by
demurrer or upon motion in arrest of judgment. Such an objection may be taken for the first
time in the appellate court. (State v. Mack, 20 Or. 234; Lemons v. State, 4 W. Va. 755; State
v. Sims, 43 Tex. 521.)
2. The indictment follows the language of the statute of 1887, p. 81, and under that statute
is certainly sufficient, as is abundantly shown by the preceding opinion. The only question
then, is whether that is a valid and constitutional law. It is objected that it is not, because it is
virtually an amendment of sections 4634, 4635, Gen Stat., which under the constitution can
only be amended by re-enacting them in full, and a number of Nebraska cases (Smails v.
White, 4 Neb. 357; Sovereign v. State, 7 Neb. 410; Stricklett v. State, 48 N. W. Rep. 820; and
Smith v. State, 52 N. W. Rep. 572) are cited as supporting that view. It seems, however, that
the courts of that state stand alone upon that question, and while their position may be the
more correct viewed from a theoretical and philosophical standpoint, in my judgment the
weight of authority and the more practical reason is with those that hold the general rule that
the clause of the constitution under consideration does not apply unless the subsequent statute
is, in terms as well as in effect, an amendment of the preceding statute. Speaking of the
constitutional provision that an amended section of a statute must be re-enacted and
published at length, Judge Cooley says: It should be observed that statutes which amend
others by implication are not within this provision; and it is not essential that they even refer
to the acts or sections which by implication they amend. (Const. Lim. 182.) This statement is
well supported by the adjudged cases of many states.
A statute is frequently so interwoven with others, and directly or indirectly modifies or
amends so many others, and the rule contended for is itself so uncertain and indefinite, and in
its nature incapable of reasonably fixed limits of application, that, as it seems to me, its
adoption would lead to more uncertainty and confusion in the law than it would eliminate.
Therefore, if we admit the position of counsel that the act of 1887 is an amendment of the
previous statutes concerning embezzlement, it does not follow that the act is unconstitutional.
I concur in the affirmance of the judgment, and of the order refusing a new trial.
____________
21 Nev. 433, 433 (1893) Egan v. Jones
[No. 1380.]
JAMES B. EGAN, Appellant, v. W. D. JONES, Respondent.
Election ContestSufficiency of Complaint.Section 10 of art. 4 of the constitution declares that any
person who may be convicted of having given or offered a bribe to secure his election or appointment to
office shall be disqualified to hold any office of profit or trust in the state. Section 1560 of the general
statutes authorizes a contest of election when the person whose right to the office is contested was not, at
the time of election, eligible to such office. Held, that a complaint to contest the election of a district
attorney which alleged that the contestee offered before election to make a bond conditioned that, if
elected, he would return to the county treasury each month a portion of his salary, but does not allege that
the contestee had been convicted of offering such bribe, does not show that the contestee was
disqualified to hold the office, and is fatally defective on demurrer.
James B. Egan, in pro. per., for Appellant.
I. A reasonable construction of the constitutional provision shows that a criminal
conviction was not intended to be necessarily precedent to disqualification to hold office. The
words, may be convicted are used after the words shall be convicted occurring in the
same section and are used advisedly. It is the history of all legislation and constitutional
provisions on this subject that it is intended that the people shall not have to wait the delays
of criminal courts before a person will be declared to be ineligible to hold office. (Com. v.
Walter, 83 Pa. St. 105; Royal v. Thomas, 28 Grat. 130.)
J. F. Dennis, for Respondent.
I. To render a person ineligible to hold office because of bribery or an offer to bribe, he
must have first been convicted in a regular criminal proceeding.
21 Nev. 433, 434 (1893) Egan v. Jones
bribery or an offer to bribe, he must have first been convicted in a regular criminal
proceeding. (1 Wheat. 461; 82 Kentucky, 88; 76 N. C. 231; 53 Barb. 152; 40 How. Pr. 97.)
The words may be, may be convicted, as used in our constitution, mean shall be
convicted, or has been convicted. (End. Interp. of Stats. 307; 4 Wall. 435; 5 Wall. 705.) There
can be no proof of bribery or an offer to bribe, under the laws of this state, except the record
of conviction. (Bush v. Thornton, 25 Hun. 457.)
This is what purports to be an election contest, brought under section 1560, Gen Stat.
Nev., which reads: Any elector, of the proper county, may contest the right of any person
declared duly elected to an office exercised in and for such county; and also any elector of a
township may contest the right of any person declared duly elected to any office in and for
such township, for any of the following causes: First, for malconduct on the part of the board
of inspectors or any member thereof; second, when the person whose right to the office is
contested was not at the time of election eligible to such office. It appears from the
complaint that at the general election held in the month of November, 1892, the contestant,
Egan, and the contestee, Jones, were opposing candidates for the office of district attorney in
and for Lander county, Nevada; that Egan received two hundred and fifty-three votes, and
Jones two hundred and sixty-nine votes; and thereafter the board of county commissioners
met and canvassed the vote, finding the result as above stated declared Jones elected, and
ordered a certificate of election to issue to him. The contestant filed his complaint, and
assigns as the grounds of Jones' ineligibility that at divers and sundry times during the
political campaign of 1892, Jones, in his public speeches, declared that the sum of one
thousand eight hundred dollars per annum, which is the salary fixed by law to be paid to the
district attorney of Lander county, was more than the services required of that officer were
worth, and that if the people would elect him (Jones) to the office he would return to the
county treasury fifty dollars per month out of said salary; and the said Jones offered to give a
bond as a guaranty of good faith and return of the money as aforesaid.
21 Nev. 433, 435 (1893) Egan v. Jones
A demurrer was interposed to this complaint, on the ground that it did not state facts
sufficient to constitute a cause of action against the defendant. The demurrer was sustained.
The contestant failing to amend, judgment was entered in favor of the contestee for his costs.
This ruling of the court is assigned as error, and appellant argues that he was not required
to allege in his complaint that the contestee had been tried and convicted of the crime of
bribery; and he relies on section 10, art. 4, of the constitution to support his position. Said
section reads as follows: Any person who shall be convicted of the embezzlement or
defalcation of the public funds of this state, or who may be convicted of having given or
offered a bribe to procure his election or appointment to office, or received a bribe to aid in
the procurement of office for any other person, shall be disqualified from holding any office
of profit or trust in this state; and the legislature shall, as soon as practicable, provide by law
for the punishment of such defalcation, bribery or embezzlement as a felony.
Contestant argues that, under the words or who may be convicted of having given or
offered a bribe to procure his election or appointment to office, it was not necessary for him
to allege in his complaint that the contestee had been convicted of the crime of bribery in
order to sustain his action. We think differently. The conviction is the foundation upon which
the cause of action must be based on a charge of bribery, and without such a conviction no
ouster can be adjudged. The word convicted has a well-defined meaning, and he who reads
ought not to be misled thereby. Webster's dictionary defines the word as the past participle
of the verb to convict. To prove or find guilty of an offense or crime charged; to pronounce
guilty, as by legal decision. Black's Law Dictionary: Convicted. This term has a definite
signification in law, and means that a judgment of final condemnation has been pronounced
against the accused. Anderson's Law Dictionary: Convicted. Found guilty of the crime
whereof one stands indicted. Rap. & L. Law Dictionary: The finding of a person guilty of
an offense. Bouvier: Conviction. A condemnation. In its most extensive sense this word
signifies the giving judgment against a defendant, whether criminal or civil. In a more limited
sense it means the judgment given against the criminal. (See, also, Blaufus v. People, 69 N.
Y.
21 Nev. 433, 436 (1893) Egan v. Jones
109; Faunce v. People, 51 Ill. 312; Ritter v. Press Co., 68 Mo. 460.)
Under our system of government and the statute of this state, and the constitutional
provision referred to, convicted means when a person has been indicted by a grand jury,
tried by a court and jury, and found guilty of the offense charged in the indictment; and it was
the intention of the framers of the constitution that no person should be ousted from an office,
when charged with the crime of bribery, until after such trial and conviction upon a verdict of
guilty.
By the section of the constitution referred to, bribery is made a felony under article 1,
section 8. No person shall be tried for a capital or other infamous crime * * * except on
presentment or indictment of a grand jury. Section 1 Crim. Proc., reads: A crime or public
offense is an act or omission forbidden by law, and to which is annexed, on conviction: * * *
Fourth, removal from office; fifth, disqualification to hold or enjoy any office of honor, trust,
or profit under this territory. Sec. 5. No person can be punished for a public offense except
upon legal conviction in a court having jurisdiction. Sec. 6. Every public offense must be
prosecuted by indictment, exceptFirst, where proceedings are had for the removal of a civil
officer of the territory. The exception merely refers to proceedings by impeachment. This is
seen by reading section 3952: If the offense for which the defendant is impeached be the
subject of an indictment, the indictment shall not be barred by the impeachment. The court
did not err in sustaining the demurrer, and the judgment is affirmed.
____________
21 Nev. 437, 437 (1893)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
JULY TERM, 1893.
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Volume 21
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21 Nev. 437, 437 (1893) Brown v. Killabrew
[No. 1384.]
J. R. BROWN, Respondent, v. H. A. KILLABREW,
Appellant.
EjectmentPermissive Occupancy of Lands.One who has purchased and received a conveyance of the
improvements and possessory right of a settler on unsurveyed public lands, is entitled to recover in
ejectment against one who entered by his permission and afterwards refused to surrender possession.
IdemPossession by Tenants.A person may purchase and take a conveyance of the improvements and
possessory right of a settler on unsurveyed public lands, and occupy the lands through tenants; and proof of
such possession is sufficient in ejectment against a trespasser.
IdemDispute of Possession by Lessee.Where a person enters on unsurveyed public land and works the same
on shares with one who has purchased the improvements and possessory right of the original settler, he
cannot dispute the latter's possession.
IdemRight of PossessionApplication for Homestead.Where one enters on inclosed and improved
unsurveyed public land and occupies it with the consent of the owner of the inclosures and possessory
right, he cannot refuse to surrender and claim a right of possession on the ground that the title is in the
United States; and it is immaterial that by making an application for the land as a homestead he intends to
connect himself with the government title.
IdemPriority of Possession.When no better right than possession is shown, he who is prior in time is prior
in right.
L. A. Buckner, for Appellant.
I. The complaint failed to allege that respondent was entitled to the possession of the land.
The possessor of land is not necessarily entitled to the possession.
II. The district court had no jurisdiction. Public lands cannot be entered in the state of
Nevada until the quota of the state is full, except under the homestead laws. (U.S. Stat. at
Large, Vol. 14, p. 85; Gen. Stats. of Nev. Sec. 29, title, Grants of Land.)
I. The courts zealously enforce the law made to protect men in their rights against those
who unlawfully attempt to appropriate the property of others. (Nickals v. Winn, 17 Nev. 188;
Gondar v. Miller, 27 Pac. Rep. 333.)
Action of ejectment for the recovery of the possession of one hundred and sixty acres of
unsurveyed land. The court found in favor of the plaintiff and against the defendant. A
motion for a new trial was overruled and defendant appeals.
The plaintiff bases his right to recover upon prior possession and the fact that the
defendant moved onto the land and occupied the house thereon with the consent of the
plaintiff. The answer denies the plaintiff's possession and his right thereto; alleged that in the
month of April, 1891, the defendant made a peaceable entry on the land described in the
complaint; that he has had peaceable possession of said land ever since, with the bona fide
intention of claiming the same as and for a homestead.
The evidence in this case establishes the fact that the plaintiff purchased the possessory
right of one Metcalf in 1SS9.
purchased the possessory right of one Metcalf in 1889. At the date of said purchase the land
was inclosed with a fence of posts and barbed wire. There was a dwelling house, stable and
cross fences on the land. During the year 1890 the plaintiff leased the land to the son of his
grantor. In the spring of 1891 the defendant asked permission of the lessee of the plaintiff to
move into the house on the land in controversy, giving as a reason that if the water would
continue to rise it would drive him out of his own house, and after obtaining the consent of
the plaintiff, Metcalf, the lessee, told the defendant where he could find the key to the door of
the house and to move in, as he (Metcalf) was going away.
It also appears that the plaintiff and defendant cultivated a portion of the land in dispute;
the plaintiff furnishing teams, seed and farming implements against the defendant's labor. All
other expenses were to be borne equally between them; the crops, when gathered, to be
divided, share and share alike. This agreement continued during the years 1891 and 1892. In
January, 1893, the plaintiff was informed that the defendant was claiming the land as a
homestead, demanded possession of the same and was refused; hence this action. The
plaintiff never lived upon the land in person; after he purchased the possessory right and the
improvements from Metcalf, Sr., he leased the same to Metcalf, Jr., who remained in
possession as the tenant of the plaintiff until the spring of 1891, when he allowed the
defendant to enter as above stated.
The principal question presented by the record in this case is the same as decided by this
court in Nickals v. Winn, 17 Nev. 192, and Gondar v. Miller, 21 Nev. 180. We satisfied with
the conclusions reached in each of the decisions, and they must be held conclusive of such
questions. (See, also, Rourke v. McNally, 33 Pac. Rep. 62, and authorities therein cited.)
The appellant contends that the court erred in denying his motion to strike out the deed
from Metcalf to plaintiff, which had been admitted in evidence; the grounds of objection
being that, if the plaintiff claimed either under the federal law or intended to apply to the state
to purchase the land, he would have to show occupancy in person, not by another.
We know of no law, federal or state, forbidding the sale of possessory rights to the
unsurveyed public lands and the improvements thereon, and the deed was admissible in
evidence to show from whence the plaintiff derived his right of possession, and to
establish his ownership of the fences, houses, barns, water rights and ditches.
to show from whence the plaintiff derived his right of possession, and to establish his
ownership of the fences, houses, barns, water rights and ditches. Possession is defined to be a
subjection to the will and dominion of the claimant, and is usually evidenced by occupation,
by a substantial inclosure, by cultivation or by appropriate use. We think that the plaintiff was
in actual possession of the premises in dispute by his right of possession through his deed
from Metcalf, Sr., his inclosures, improvements and through his tenant George Metcalf, Jr.,
who testified that he was living with his father on the land in dispute when father sold to
Brown. Father left for California. I looked after the place for Mr. Brown until May, 1891. In
October, 1889, I leased the place of Mr. Brown. I paid him two dollars and fifty cents for the
first month, and plowed about twelve acres of land for the balance of the rent. I left the place
in May, 1891.
In the spring of 1891 the appellant entered upon the land with the consent of Metcalf, Jr.,
or Brown, or both, as testified to by Brown; whichever way it was it is immaterial, as the
defendant himself admits that the plaintiff and himself worked the land together during the
years 1891 and 1892, which constituted them tenants in common as to the crops at least, and
the possession of the defendant was for the benefit of the plaintiff as well as for himself.
(Reinhart v. Bradshaw, 19 Nev. 258.) Under the above facts the defendant is estopped to
dispute the possession of the plaintiff to the premises in controversy, and when he refused to
surrender possession to the plaintiff after the division of the crops in 1892 he became a naked
trespasser, claiming an unwarranted entry upon the inclosure of the plaintiff; and it has been
held by all courts since the decision in the case of Atherton v. Fowler, 96 U.S. 513, that a
person cannot forcibly or surreptitiously enter upon the actual inclosure of another on the
ground that the title is in the United States, and thereby acquire a right or possession to the
land within the inclosure. And the mere fact that the defendant alleged that at some future
time he intended to connect himself with the government title by making application for the
land as a homestead did not give him any right as against the plaintiff, who was rightfully in
possession of the land at the date of the alleged ouster; for when no better title than
possession is shown, he who is prior in time is prior in right.
____________
21 Nev. 441, 441 (1893) Douglass v. Folsom
[No. 1381.]
J. M. DOUGLASS, Respondent, v. L. D. FOLSOM, ADMINISTRATOR OF THE ESTATE
OF C. C. STEVENSON, DECEASED, Appellant.
Decedent's EstatesNotice to Creditors.It is unnecessary that the notice to be given by an executor or an
administrator to the creditors of an estate should specify whether the place where the claims are to be
presented is his place of residence or his place of business.
IdemPresentation of Claims.Claims against an estate may be legally presented at the place where the notice
directs them to be presented, without regard to whether the executor or administrator is there to receive
them. His absence from the state makes no difference in this rule.
IdemDelivery of Claim to Attorney of Estate.Under the statutes of Nevada it is not a sufficient presentation
of such a claim to hand it to the attorney for the estate; at least not without showing that it actually
reached the administratrix within the proper time for the presentation of claims.
IdemAttorney for Estate.There is no such officer as an attorney of record, or attorney generally for an
estate. An attorney's employment with reference to an estate must always be in a particular matter, and with
that matter his legal connection with the estate ends.
J. L. Wines and Trenmor Coffin, for Appellant.
I. If the presentation of the claim to the attorney of the estate be held to be a presentation
authorized by law, it was barred before suit was commenced. It was handed to the attorney on
August 14, 1891, and ten days expired on August 24, 1891, without the claim having been
acted upon and it became rejected under the statute. Suit was brought on January 5, 1892,
more than three months after the claim was rejected. The suit cannot be maintained because
not brought within time. (Benedict v. Hoggin, 2 Cal. 386.)
II. Claims against an estate must be presented at the place designated in the notice to
creditors unless such presentation is waived by the personal representative of the estate. The
claim in question was never presented at such place and the administratrix never waived
such presentation.
claim in question was never presented at such place and the administratrix never waived such
presentation. The requirements of the statute governing the presentations of claims are
mandatory. (Zackary v. Chambers, 1 Oregon 321.)
III. A claim against an estate cannot be legally presented to an attorney for the estate or an
attorney for the executor. (Redfield's Surrogate Prac. 524; McClellan's Probate Prac. 228;
Whitmoore v. Foose, 1 Denio 159; Hardy v. Ames, 47 Barb 413.) The claim must be
presented to the personal representative of the estate. In the presentation of claims against an
estate the statute must in all cases be strictly pursued. (Pico v. De La Guerra, 18 Cal. 422;
Perkins v. Onyett, 86 Cal. 349; McWhorter v. Donald, 39 Miss. 779; Redfield's Surrogate
Prac. 531; Elliott v. Cronks, Adm., 13 Wend. 39; Hoyt v. Bonnett, 50 N. Y. 538.) Proper
presentation is a condition precedent to the right to maintain an action upon a claim. (Dodson
v. Nevitt, 5 Mont. 518; Eustace v. Jahns, 38 Cal. 3.)
F. M. Huffaker, for Respondent.
I. The object of all legislation on the subject of presentation of claims against an estate is
to have the claims brought to the attention of the executor or administrator. The
administratrix being absent from the state the presentation of the claim to the attorney of the
estate to be delivered to her was a sufficient presentation. The administratrix had knowledge
of the claim and the source of such knowledge is immaterial. (Perry v. Administrator, 40
Miss. 233; Ward v. Durham, 134 Ill. 201.)
II. The notice to creditors failed to specify either the residence or the place of business of
the administratrix as required by the statute. It did show that Mr. Coffin was the attorney of
the estate and represented the administratrix. The presentation of the claim to him while at
Virginia City transacting business of the estate was sufficient, especially so because of her
absence from the state. (Bollinger v. Manning, 79 Cal. 12; Roddan v. Doane, 92 Cal. 556.)
III. The claim was not barred. Plaintiff did not elect to treat failure to act upon the claim
as a rejection. To consider a claim as rejected by reason of failure to act upon it is an option
of the creditor and not a limitation in favor of the estate. (Steward v. Hinkel, 72 Cal. 189.)
The only question necessary to be considered in this case is that concerning the
presentation of the plaintiff's claim to the executrix. The record shows that on April 20, 1891,
she duly published a notice requiring all persons having claims against the said deceased to
exhibit them, with the necessary vouchers, within four months after the first publication of
this notice, to the said executrix, at the residence of John G. Fox, in Carson City, Ormsby
county, Nevada. Dated April 20, 1891. [Signed] Ellen M. Stevenson, Executrix of the
estate of C. C. Stevenson, deceased. T. Coffin, Attorney for the Estate.
This notice was sufficient. The statute (Stats. 1891, p. 105) does not require that the notice
shall specify whether the place where the claims are to be exhibited is the place of the
executor's residence, or the place for the transaction of his business, but only that the
designated place shall in fact be one or the other. The only purpose of this provision was to
fix some convenient place for the presentation of the claims, where the executor or
administrator would be most likely to be found, or if not found there, where the claims could
be left for him. Neither the letter nor the spirit of the act requires that the notice shall state
which character the designated place bears. (Hoyt v. Bonnett, 58 Barb. 529; S. C. 50, N. Y.
542.)
The plaintiff's claim was not in fact presented to the executrix nor was it presented at the
place designated in the notice, but was handed to Trenmor Coffin, as the attorney for the
estate, in Virginia City, where he was temporarily upon business. The plaintiff's attorney
testified that when he presented the claim to Coffin he told him that if it was paid without
delay the plaintiff would deduct two thousand five hundred dollars therefrom. Coffin gave a
slightly different version of this conversation, but not differing in any point material to this
decision. He also testified that soon after this he was taken sick, and did not communicate
with or see the executrix until the 15th or 20th of December of that yearlong after the
period for presentation of claims had expiredwhen he told her of the offer made by the
plaintiff, which she refused to accept. That the claim was never presented or shown by him to
the executrix, but upon her refusal to accept the plaintiff's offer he returned it to the plaintiff's
attorney, with a statement to that effect. If we reject this testimony as untrue, then there is
nothing to show that the executrix ever knew anything about the claim until the
commencement of the action; so this would not help the plaintiff's case any.
that the executrix ever knew anything about the claim until the commencement of the action;
so this would not help the plaintiff's case any.
The plaintiff's attorney argues that presentation to Coffin should be held sufficient,
because before the four months for the presentation of claims had expired, the executrix left
the state and remained absent until the 24th day of December, 1891; that it was impossible to
present it to her during the time of her absence, and consequently presentation to the attorney
was sufficient.
Gen. Stats., Sec. 2797, as amended in 1891, requires the executor or administrator to give
notice to the creditors of the deceased to exhibit their claims within four months after the first
publication of the notice, to such executor or administrator.
Sec. 2798 provides that if not so presented, with certain exceptions inapplicable here, the
claim shall be barred forever.
Sec. 2799, that every claim presented to the administrator shall be supported by the
affidavit of the claimant.
Sec. 2800, that the probate judge may present a claim to the executor or administrator.
Sec. 2801, that when a claim has been presented to the executor or administrator, he
shall indorse thereon his allowance or rejection, with the day and date thereof; that if the
executor or administrator refuses or neglects to indorse his action on the claim for ten days
after it is presented to him, such neglect or refusal may be deemed equivalent to a rejection;
that if presented to the executor or administrator before the expiration of the time for the
presentation of claims, he may act upon it afterwards.
Sec. 2803, that when a claim is rejected by the executor or administrator, suit shall be
brought upon it within three months, or it shall be barred forever.
Sec. 2805, that no action shall be maintained upon any claim, unless it shall have been first
presented to the executor or administrator.
Sec. 2806, that the time during which there shall be a vacancy in the administration, shall
not be included within any limitations prescribed in the act.
Many other parts of the probate act contain expressions similar to the above, but it is
believed that the foregoing are the only ones bearing directly upon the matter in hand.
only ones bearing directly upon the matter in hand. Such being the case, can there be any
possible doubt that the legislature intended to require the claims to be presented to the
executor or administrator, in person, and not to any one else? Has it not been said in the
plainest and most unequivocal language, with iteration and reiteration, that they must be
presented to the executor or administrator? This is a matter entirely within the power of
regulation by the legislature, and the only duty of the courts is to carry out the law as fixed by
that body. There is here no room for construction; the language is absolutely plain, and there
is nothing in the context, or in the application of the law, to lead the mind to the conclusion
that the law-making body did not mean just what it has said.
The only reason suggested for adopting any other construction is that as the executrix had
left the state, so that claims could not be presented to her in person, presentation to the
attorney should be held equivalent thereto. But not only, as we shall see, did her absence not
prevent the proper presentation of the claim, but to so hold would be not to construe the law,
but to make it in the first instance. Were we, in such a case as is presented here, authorized in
any particular to add to or take from the statutory provisions, the most reasonable view would
be that such absence from the state, instead of authorizing the presentation of claims to any
one else than the executrix, would, during its continuance, suspend the running of the period
for their presentation, but under a similar statute the supreme court of Alabama held that it
had no power to vary its plain terms, and that absence from the state could not have even that
effect. (Bank v. Donelson, 12 Ala. 741; Lowe v. Jones, 15 Ala. 545.)
Nor does the hardship of the case press upon the court the necessity of stretching the law
in order to afford a remedy in such a situation, if, indeed, this consideration should ever be
given any weight. Notwithstanding the executrix's absence, there was still an easy and
sufficient mode of presentation left. When the legislature provided for the notice to creditors,
it must have had in view the fact that it could not be expected that the executor would remain
in any one place during the entire four months, nor was there any necessity that he should, or
for requiring the creditor to follow him about through the state, or out of it in order to present
the claim to him in person.
Some fixed and common place could easily be provided, greatly to the convenience of both,
where the creditor could present the claim and the executor could expect to find it. This was
done when it was provided that the executor should notify the claimants to present their
claims at the place of his residence or transaction of business, and in view of this provision,
it is evident that the legislature intended that presentation at that place should constitute
presentation to the executor or administrator, even though he was not personally there to
receive it. This is the view taken by the California courts of the statute from which our is
copied (Roddan v. Doane, 92 Cal. 556), and the construction is justified by the language and
purposes of the act. But this is a very different thing from holding that the legislature intended
that in such a case presentation to an attorney should also be sufficient; in support of which
contention not a clause or word of the statute can be cited. In this case the administratrix had
notified the claim holders to present their claims to her at the residence of John G. Fox, in
Carson City, and it follows that, under the statute, it was her duty to be there to receive them,
or else to make arrangements for any that were presented there being brought to her notice.
There is no showing but that she did this, and in its absence, if it cut any figure in the case, we
should presume that she did. At any rate, there was the place where the statute authorized the
claims to be presented, and consequently her absence was no injury to the claim holders.
A brief view of the relation which an attorney bears to an estate is also quite convincing
that the legislature never intended to authorize the presentation of claims to him. Under our
statute there is no such thing as a general attorney or attorney of record of an estate. No
provision is made for his retainer or employment, and there is nothing from the beginning to
the end of the probate act which contemplates the existence of such an agent. Twice at least
has this court already held that if the estate is not involved in litigation, and there are no
complicated legal questions for solution, there is no occasion for the employment of an
attorney, and that it is the duty of the executor to keep the accounts himself and make the
proper reports to the court; that if he is incapable of doing this and has to employ assistance in
the discharge of his duties, he must pay for it out of his own pocket. (Estate of Olaf
Nicholson, 1 Nev. 51S; Lucich v.
[1] Nev. 518; Lucich v. Medin, 3 Nev. 104; 2 Woerner Adm'n, Secs. 515, 516.)
If the exceptional circumstances exist, and it becomes necessary to employ an attorney in
any particular matter or case, then, as to that matter or case the attorney occupies to the estate
the usual relation of attorney and client. If the matter is the prosecution or defense of an
action, papers in that case can be served upon the attorney, wherever the practice act has
authorized its being done. This would not, of course, extend to anything outside of that
particular employment, and would end with that proceeding. If the representative should
consult an attorney upon some question of law, the usual relation would again be formed, but
would end with that consultation. With the next question or action the representative could
employ the same attorney, or any other, as he deemed best. Or, if instead of doing this way,
the representative should prefer to employ the same attorney in all matters in which it is
necessary to have an attorney, this would not change the situation, or make him the general
attorney, or attorney of record, of the estate. He would still be simply the attorney to whom
the representative always went for advice and assistance, but his relation to the estate would
not be any greater, and contrary to the usual rule (Gen. Stat. Sec. 2539, 2540), without his
consent, without leave of the court, and without notice to any one, the representative could
change this employment at any time, and end all relation with the attorney. (Hoes v. Halsey, 2
Dem. Sur. 577; 1 Woerner, Adm'n, Sec. 144.) Although district courts are now vested with
jurisdiction of probate matters, this jurisdiction, with some exceptions, immaterial here, is to
be administered under the same principles that formerly applied to the probate court, and
under the same rules of practicein fact, under the same act. The jurisdiction is just as
distinct and separate from other powers as though vested in a different court (Lucich v.
Medin, 3 Nev. 93, 99), and therefore the fact that attorneys of record are recognized in other
matters in those courts does not affect the question here.
An attorney at law is merely an agent of the client, and a special agent at that, in the sense
that his authority only extends to the particular matter in which he has been employed. An
executor or administrator occupies very much the same position towards the estate that the
deceased did himself. If in course of the settlement some occasion arises in which he
requires the assistance of an attorney, he can employ him at the expense of the estate,
and in that matter he would doubtless become the attorney of the estate.
in course of the settlement some occasion arises in which he requires the assistance of an
attorney, he can employ him at the expense of the estate, and in that matter he would
doubtless become the attorney of the estate. But no one would suggest in case of an
individual, that an attorney's employment in one action give him authority to represent the
client in another, or to represent him generally. No more does it in case of an estate.
Attaching Coffin's name to the notice to creditors as the attorney for the estate amounted to
nothing. It was a mere advertisement of the fact that he was the attorney who had probably
drawn the notice, and whom the administratrix then probably expected to employ about the
business of the estate, when it was necessary to employ any one. But when claims were
presented under the notice, she could, without discharging him, without paying him, without
his consent, go to any other attorney and employ him to advise or assist her in defending
against the claim, and Coffin's connection with the estate would be ended. Therefore, when
this claim was presented or handed to him, not only was it not authorized by the statute, but
he was not the attorney for the estate in that matter. His connection with the estate had
ended, unless he was further employed. As well might the claim be presented to any other
attorney or agent who had once been employed by the administratrix in some other matter.
Owing to the diversity of the statutes, the decisions of other courts do not have much
bearing upon the question in hand, but the following cases are somewhat related to it, and as
far as they go, support the conclusions here announced: Hardy v. Ames, 47 Barb. 413;
Whitmore v. Foose, 1 Denio, 159; Spaulding v. Suss, 4 Mo. App. 541; Hicks v. Jamison, 10
Mo. App. 35; Pfeiffer v. Suss, 73 Mo. 245; Farris v. Stoutz, 78 Ala. 130; Jones v. Lightfoot,
10 Ala. 17.
Experience proves that the speedy settlement of estates is most desirable. All of our
legislation tends as much as possible to hasten that result. To that end vigilance is required
from those having claims against an estate, and a substantial compliance with the provisions
of the statute concerning their presentation is demanded. Thus, in Woerner, Adm'n, Sec. 387,
it is said: A literal compliance with the terms of the statute is the only course to secure
absolute safety to the creditor, and to relieve the administrator from the perplexing doubt, and
even personal hazard, which may arise if the sufficiency of the exhibition is not clearly
apparent.
even personal hazard, which may arise if the sufficiency of the exhibition is not clearly
apparent. For, however liberally disposed he may be to waive technical defenses and to deal
with creditors on the basis of substantial justice, he stands as the representative of all
creditors, as well as of heirs, legatees, and distributees, whose technical rights he is not at
liberty to disregard. In Zachary v. Chambers, 1 Or. 324, the court used this language: The
term presentment, under this statute, as elsewhere, in legal nomenclature, has a technical
signification, and necessarily includes every ingredient which the law has fixed to it in the
particular connection in which it stands. An executor or administrator is the representative of
an interest which the legislature has guarded with a careful solicitude; and in so doing has
clearly vindicated the terms upon which a claim may be preferred against an estate, and the
test by which an administrator shall be justified in allowing it. And again, in Perkins v.
Onyett, 86 Cal. 348, it was said: In such a case the plaintiff must show at least a substantial
compliance with each requirement of the statute on the subject of the presentation of claims.
To avoid misunderstanding, we wish to add that we do not intend to hold that claims must,
under all circumstances, be presented at the designated place. If handed to the executor
elsewhere, it might be held to be sufficient; or, in this case had it been shown that Coffin had
actually handed the claim to the executrix within the proper time this might have constituted a
good presentationpoints that we do not need to pass upon.
For the error in admitting the plaintiff's claim in evidence, and holding that it had been
sufficiently presented, a new trial should be granted, and it is so ordered. The judgment and
order overruling the motion for new trial reversed.
____________
21 Nev. 449, 449 (1893) Poujade v. Ryan
[No. 1372.]
J. POUJADE and C. W. RODEN, Appellants, v. P. RYAN
and JAMES RYAN, Respondents.
PracticeFindings, When Not Considered on Appeal.Where the findings are not included in the statement
they can not be considered upon an appeal from an order overruling a motion for new trial.
IdemStatute Construed.The statute of 1889, p. 22, requiring the court to presume that the statement contains
all the matters pertinent to the proper presentation of the appeal, does not require that we should so
presume when the contrary appears from the statement itself.
IdemIdem.The amendment to the practice act (Stats. 1893, p. 88), is not retroactive, and does not apply to a
case where the motion for a new trial had been heard and disposed of by the lower court before its
enactment.
Mining LawNotice of Location and Record.The mining law does not require that a notice of location of a
mine shall contain a reference to a natural object or permanent monument. It is the record of the location
that must contain such reference, and only then when the district laws require the record to be so made.
Judicial NoticeLocal Mining Rule.The court can not take judicial notice of the existence in a particular
district of a rule requiring claims to be recorded. Such rule, if it exists, must be proven the same as any
other fact in the case.
T. J. Osborne and J. Poujade, for Appellants.
I. The court erred in admitting as testimony to prove a legal location by respondents, a
recorded duplicate of an invalid notice of location. Respondent's location was insufficiently
marked. No court has yet construed the U.S. statute so as to evade or nullify the meaning of
the words distinctly marked so that the boundaries may be readily traced. (Gelcich v.
Moriarity, 53 Cal. 217; Holland v. Auburn, 53 Cal. 149.)
Geo. S. Sawyer and Trenmor Coffin, for Respondents.
I. The appeal should be dismissed. The findings of fact and conclusions of law are not
embraced in the statement on motion for new trial, although in the transcript on appeal they
are no part of it and cannot be considered by the court. (Bowker v. Goodwin, 7 Nev. 135;
Alderson v. Gilmore, 13 Nev. 84; Nesbitt v. Chisholm, 16 Nev. 39; Boyd v. Anderson, 18
Nev. 348.)
II. It is the record and not the notice of location that must contain reference to natural
objects or permanent monuments. {U.S.
contain reference to natural objects or permanent monuments. (U.S. Rev. Stats. Sec. 2324.) In
this case there were no district rules requiring a record to be made, and in their absence none
is required. (Golden Fleece Co. v. Cable Con. Co., 12 Nev. 323; Southern Cross Co. v.
Europa Co., 15 Nev. 383.)
Appeal from an order overruling a motion for new trial. The findings of fact are not
included in the statement on the motion, nor are they in any manner identified, and for this
reason the objection is made that we cannot consider them upon this appeal. Such has been
many times the decision of this court. (Boyd v. Anderson, 18 Nev. 348; Nesbitt v. Chisholm,
16 Nev. 39; Alderson v. Gilmore, 13 Nev. 84; Bowker v. Goodwin, 7 Nev. 137; Mining Co.
v. Barstow, 5 Nev. 254; Corbett v. Job, Id. 204.) The objection must consequently be
sustained.
The appellants urge that under the statute of 1889, p. 22, we are to presume that the
statement contains all the matters pertinent to the proper presentation of the appeal, and
consequently, we suppose that we must either presume that the statement does contain the
findings or that they are not pertinent to the presentation of the case in this court. But the
statute only requires us to so presume when the contrary does not appear from the statement
itself. That is the case here. An examination of the statement demonstrates that it does not
contain the findings, and as the only assignments of insufficiency of the evidence are that
certain findings are not supported by it, they are certainly pertinent, as without them it is
impossible to understand what the assignments refer to.
It is further argued that the amendment to the practice act (Stat. 1893, p. 88) has changed
this rule, but without pausing to determine whether that is or is not the case, it is sufficient
here to say that the amendment is not retroactive, and does not apply where the motion for
new trial had been made and disposed of before its passage. (Hancock v. Thom, 46 Cal. 643;
Caulfield v. Doe, 45 Cal. 222.)
The only other error assigned is that upon the admission in evidence of the notice of
location of the defendants' mine. Upon this point the statement contains the following:
James Ryan, one of the defendants, sworn on behalf of the defendants, testifies
substantially as follows: * * * The notice of location of the Hope mine is shown the
witness and he says: 'This is a duplicate of the notice we posted.
testifies substantially as follows: * * * The notice of location of the Hope mine is shown the
witness and he says: This is a duplicate of the notice we posted. We posted ours on a
monument on the claim, and had this one recorded.' * * * Defendants here offered in evidence
a recorded duplicate of the notice of location of the Hope mine, to which plaintiffs objected
on the ground that it was insufficient, irrelevant and incompetent and immaterial, in that,
being a recorded notice it is insufficient for lack of description and that it does not identify
the claim by reference to a permanent monument or natural object.
We know of no law requiring a notice of location to contain a reference to a permanent
monument or natural object. It is the record of the location that must contain this reference,
and only then when the district laws require such record to be made. (Golden Fleece, etc., Co.
v. Cable Consolidated, etc., Co., 12 Nev. 312, 323; Gleeson v. Mining Co., 13 Nev. 442,
465.) There was no evidence offered concerning the local laws of this district, nor indeed
does the recorded notice seem to have been offered for the purpose of proving compliance
with any rule requiring recordation, but rather as the notice which was posted upon the mine,
as a part of the location thereof. As such, there was no error in admitting it. Without proof of
a law requiring recordation, the fact that it had been recorded made it no better nor worse than
if it had not.
The appellants assert that it is a universal custom, applicable to all mining districts, to
require the recordation of mining locations, and, as we understand the argument, that we
should consequently take judicial notice of its existence. We are of the opinion, however, that
it has been too often decided that the existence of rules and customs governing the manner of
locating and holding claims in each district is to be established by the evidence in the case,
the same as any other question of fact, to be now open to controversy. (Golden Fleece, etc.,
Co. v. Cable Consolidated, etc., Co., 12 Nev. 312, 322; King v. Edwards, 1 Mont. 235;
Sullivan v. Hense, 2 Colo. 424; Harvey v. Ryan, 42 Cal. 626.)
The order appealed from is affirmed.
____________
21 Nev. 453, 453 (1893) Brady v. Husby
[No. 1383.]
PATRICK BRADY and JAMES BRADY, Appellants, v.
JOHN HUSBY, Respondent.
EjectmentPleading Equitable Defense.A party that relies upon an equitable defense to an action of
ejectment must set up in his answer the facts constituting the same or it will not be considered.
Mining LawNotice of Location and Record.It is the record of a mining claim, and not the notice of location,
that must contain such reference to a natural object or permanent monument as will identify the claim, and
only then when the local laws require a record to be made.
IdemIdentifying Claim.Where the record of a mining claim contains such reference to a natural object or
permanent monument as might under any circumstances identify the claim, the record is admissible in
evidence, and it becomes a question of fact as to whether such reference is sufficient.
IdemPresumption in Absence of Evidence.In the absence of all evidence upon the point it will be presumed
that the reference is sufficient for identification.
Action in ejectment to recover possession of the Eagle Pass mine, situated in Cortez
mining district, Eureka county, Nev. The plaintiff located the claim August 5, 1885, by
plainly marking the boundaries, and placing thereon the following notice of location: Notice.
I, the undersigned have this day located this vein, ledge or claim on the Cortez mountain. I
claim seven hundred and fifty feet northeasterly and seven hundred and fifty feet in a
southwesterly direction, and also four hundred feet on the southeast side and two hundred feet
on the northwest side of each side of the claim. This mine to be known as the Eagle Pass
mine. Cortez mining district, August 10, 1885, Pat. Brady, locator.
This notice was recorded in the records of Eureka county on August 21st, and in the
district records on August 24th of that year, which was the only record made of the claim.
There was evidence tending to show that by agreement of the parties the defendant was
to be half owner in the location, and that it was located in the plaintiff's name alone,
because the defendant was then an alien and unable to locate mining claims.
21 Nev. 453, 454 (1893) Brady v. Husby
parties the defendant was to be half owner in the location, and that it was located in the
plaintiff's name alone, because the defendant was then an alien and unable to locate mining
claims.
On March 2, 1890, the defendant having become a citizen, located the same ground under
the name of the Ontario mine, and thereafter ejected the plaintiff from the claim.
F. M. Huffaker, for Appellants.
I. The court erred in excluding appellant's notice of location because it did not refer to any
natural object. Such objection can only be made to the introduction in evidence of the record
of the notice and not to the notice itself. (Golden Fleece Mining Co. v. Cable Con. Mining
Co., 12 Nev. 323.) The fact of a location can be proved by any competent evidence.
(Campbell v. Rankin, 99 U.S. 261.)
II. There were no local mining rules providing for any forfeiture by reason of any
defective notice or record, and none can be declared of a location actually marked on the
ground and continuously held and worked in good faith. To constitute a forfeiture of a mining
claim because of failure to comply with local mining regulations, such regulations must
expressly declare forfeiture to be the effect of non-compliance. (McGarrity v. Byington, 12
Cal. 426; Bell v. Bed Bock Co., 36 Cal. 214; Donoghue v. Meister, 88 Cal. 130.)
R. M. Beatty, for Respondent.
I. If such a right to a mining claim as one resting on possession only can exist, then
appellants cannot maintain this action because they held possession as joint tenants with
respondent, and the possession of one was the possession of all.
II. The local rules required a record of locations. In this case the notice and record are
identical. The notice was recorded and it constitutes the only record of appellant's claim.
Neither the notice nor the record refer to any natural object or permanent monument, as at
least the record must do, and for such reason appellant's location is void. (9 Mor. Mg. Repts.
515.)
In view of the state of the pleadings in this case it is unnecessary to pass upon the
question of cotenancy, argued by counsel.
21 Nev. 453, 455 (1893) Brady v. Husby
essary to pass upon the question of cotenancy, argued by counsel. If the plaintiff's location of
the Eagle Pass mine was valid, he became the owner of the legal title to the whole claim. If
the defendant is the equitable owner of one-half of that location, and for that reason entitled
to retain possession thereof, this would constitute an equitable defense to the action to that
extent, but he should have set up in his answer the facts showing that such is the case. Not
having done so, the action must be tried and determined upon the issues made by the
pleadings, which simply involve the validity of the conflicting locations. (Pom. Rem. Rights,
Secs. 95, 679, 706; Arguello v. Bours, 67 Cal. 447; Bruck v. Tucker, 42 Cal. 346.)
As this court has frequently decided, it is the record of the mining claim, and not the notice
of location, that must contain such reference to some natural object or permanent monument
as will identify the claim, and only then when the local laws require a record to be made.
(Poujade v. Ryan, 21 Nev. 449; Southern Cross G. & S. Min. Co. v. Europa Min. Co. 15 Nev.
383.) It was therefore error to strike out the plaintiff's notice of location because it did not
contain such reference. At the time this ruling was made the court had no judicial knowledge
of the existence of any local laws in the mining district, providing either for the form of a
notice of location or for any record of the claim. The plaintiff had testified to posting the
notice upon the claim as a part of the act of location. As such it was admissible in evidence,
as we know of no general law requiring such notice to be in any particular form.
Subsequently, however, the defendant offered the recorded notice in evidence, as stated, for
the sole purpose of showing that the said notice does not comply with any law or custom,
but thereafter the court seems to have treated it as being in evidence for all purposes, as the
sufficiency of the notice and record was passed upon in the findings. Under these
circumstances it seems doubtful, at least, whether the original error of striking out the notice
was not cured, and we shall consider the case as though it was.
With the exception of the notice of location, or the record of the claim, or perhaps both,
there was no contention that the plaintiff's location of the Eagle Pass mine was not strictly in
accordance with the law, nor that the annual assessment work had not been duly performed.
So, to dispose of the appeal we need only consider the sufficiency of that notice and record.
21 Nev. 453, 456 (1893) Brady v. Husby
need only consider the sufficiency of that notice and record.
The defendant introduced in evidence a few sections of the local mining laws of the
district, of which one required the notice of location to state certain things, but the notice here
seems to have complied with those requirements, and as the defendant does not contend that
it did not, we pass it by.
The court found that the local mining laws required the notice of location to be recorded,
or at least filed for record, in the records of the district within thirty days after the discovery
of a claim, in order to be respected. This finding the appellant claims to be contrary to the
evidence, but without deciding the point we shall assume the finding to be correct, for the
reason that the evidence is not sufficiently before us to enable us to determine the question
satisfactorily. The finding is in accordance with the first rule adopted by the miners in 1863,
and which does not appear to have been expressly repealed, nor, so far as the rules
subsequently adopted are before us, does it seem to have been repealed by reason of necessary
conflict with them. At the same time, with all the laws before us, it might clearly appear that
it had been repealed, or at least dropped out of the code of laws in force in the district. For
instance, if at a subsequent meeting the miners had adopted an entire new code or set of laws,
it might appear therefrom that they intended to repeal or drop all previously in existence, and
be governed alone by those then adopted, which would annul the former as effectually as
would an express repeal. This principle has been frequently applied where a legislative body
has made a complete revision of all the laws upon a given subject; under such circumstances
it is reasonable to presume that they intended to repeal all those not re-enacted, although no
words were used to that effect. Other reasons might exist for concluding that the rule in
question had become obsolete. It is a question of intention, to be determined by a
consideration of all the laws, regulations and customs subsequently adopted or in force in the
district. (Thorpe v. Schooling, 7 Nev. 15; Tracy v. Tuffly, 134 U.S. 206; Suth. St. Const. Sec.
154.)
Assuming, then, that the local laws of the district required a record of the claim, and
provided for a forfeiture of it if not made, we are of the opinion that the record of the Eagle
Pass mine is, upon its face, and as a matter of law, sufficient, and that the court erred in
holding that it was not. The record makes one reference to what must be presumed to be a
natural objectthe Cortez mountainand such a reference as might under some
circumstances be sufficient to identify the claim.
21 Nev. 453, 457 (1893) Brady v. Husby
makes one reference to what must be presumed to be a natural objectthe Cortez
mountainand such a reference as might under some circumstances be sufficient to identify
the claim. For instance, if the mountain was so small that there could be but one claim upon
it, the reference would seem to be perfect, or if it was the only claim there, it would also seem
to be sufficient to identify it. It is hardly necessary to say that we cannot take judicial notice
of what the Cortez mountain is, or of its shape, size or extent.
A brief examination of the decisions will show that the courts have usually construed the
statute requiring this record with a good deal of liberality. In determining the sufficiency of
such a reference, it must also be remembered that the purpose of the notice is to direct the
inquirer to the place where the claim is located, and not to show its precise boundaries as
marked upon the ground. It must contain enough, taken with these boundaries, to enable a
person of reasonable intelligence to find the claim and trace its boundaries. (Gamer v.
Glenn, 8 Mont. 371, 378.)
In Flavin v. Matingly, 8 Mont. 242, the same court held the following reference to be
sufficient: The mining claim hereby located is situated in Summit valley mining district,
Silver Bow county, Montana territory, and is situated on the northerly side, about one-fourth
of a mile from Park Canyon. It was there said: The objection evidently went to the effect,
instead of the admissibility of the evidence. If there was no description contained in the
notice, or attempt to describe the locality or vicinity of the mining claim by reference to some
natural object or permanent monument, it might have been excluded by the court. But where
the description contained in the notice is merely defective, it should be left to the jury with
the other evidence in the case. * * * Now, a natural object is any prominent feature of the
landscape; and certainly a canyon is as much a natural object in the landscape as the
mountains which lie on either side of it, or a river or a plain. Whether or not a reference to it
will be sufficient must often depend on parol evidence; for its length may render a reference
to it indefinite, while it might possibly be shorter than a mining claim. The object of the law
in requiring the location to be made with reference to some natural object or permanent
monument is not very apparent, unless it was for the main purpose of directing attention, in
a general way, to the vicinity or locality in which the location was to be found; for the
boundaries, distances and courses are to be particularly marked and permanently fixed in
such a way as to give notice that the land has been claimed.
21 Nev. 453, 458 (1893) Brady v. Husby
of directing attention, in a general way, to the vicinity or locality in which the location was to
be found; for the boundaries, distances and courses are to be particularly marked and
permanently fixed in such a way as to give notice that the land has been claimed. How much
accuracy is acquired in this reference to natural objects and permanent monuments is not set
forth in the statute, and we are not inclined to hold that there must be a strict compliance with
the act, where there is a bona fide effort made to comply with the laws as in this case.
In Hammer v. Mining Co., 130 U.S. 291, 299, Justice Field, in delivering the opinion of
the court used this language: A reference to some natural object or permanent monument is
named for this purpose. Of course the section means when such reference can be made.
Mining lode claims are frequently found where there are no permanent monuments or natural
objects other than rocks or neighboring hills. Stakes driven into the ground are in such cases
the most certain means of identification.
In O'Donnell v. Glenn, 8 Mont. 248, it was accordingly held that a reference to a stake at
one corner of the claim was a sufficient compliance with the law, and whether sufficient to
identify the claim was a question for the jury. (See also, North Noonday Min. Co. v. Orient
Min. Co., 6 Sawy. 299; Metcalf v. Prescott, 10 Mont. 292; Campbell v. Rankin, 99 U.S. 261.)
No evidence was offered for or against the sufficiency of the reference in the notice, and in its
absence the court should have presumed that it was sufficient to identify the claim. (Gleeson
v. Mining Co., 13 Nev. 442; Hammer v. Mining Co., 130 U.S. 291.)
The evidence shows that in the case at bar the boundaries were clearly marked, and a large
amount of work had been done upon the claim before the defendant made his location. The
defendant had written the notice for the plaintiff, which he now claims to be insufficient, had
assisted in marking the boundaries, and had helped perform some of the work of
development. He knew all about the location, and was in no wise deceived or misled by the
defective record. His only claim of right to relocate the ground is based upon this technical
failure of the notice and record to comply with the law. Under such circumstances, while to
the extent that the statute is imperative it must be complied with, justice requires that the
record shall be construed as liberally as the law will reasonably permit.
The judgment and order appealed from are reversed.
____________
21 Nev. 459, 459 (1893) Colquhoun v. Wells, Fargo & Co.
[No. 1387.]
E. COLQUHOUN, Respondent, v. WELLS, FARGO & CO.,
Appellant.
PracticeEvidence, When Not Reviewable.Where there is no motion for a new trial the appellate court
cannot review the evidence in the case to ascertain whether it supports the verdict.
IdemUnintelligible Instruction.An unintelligible instruction is properly refused.
Certificate of DepositPayment to Wrong Person.Where the plaintiff had placed an indorsed certificate of
deposit with the defendant for safe keeping, which defendant agreed to safely keep and deliver to him, or to
pay him the money due thereon, the fact of the indorsement and the subsequent payment of the certificate
to one who had wrongfully, and without plaintiff's authority, possessed himself of it, does not constitute a
compliance with this agreement.
The facts fully appear in the following statement by the justice delivering the opinion:
Action to recover one thousand and eleven dollars and ninety cents alleged to be due on a
certificate of deposit issued by defendant, and for one hundred and fifty dollars, subsequently
deposited with it. Verdict and judgment for the plaintiff.
The following are the instructions refused by the court: (1) The party dealing with an
agent is bound to know at his peril whether the power of an agent is, and to understand its
legal effect. (2) If the jury believe that the signature of the plaintiff on the back of the
certificate of deposit is genuine, and the agency of the Bank of Nevada, for defendant, paid it
on presentation in due course of business, the defendant is not liable.
William Woodburn, for Appellant.
I. The evidence shows that beyond doubt respondent indorsed the certificate of deposit.
Such being the case, it was the duty of the bank to pay the amount it called for to whoever
presented it, and when paid the bank's responsibility ceased.
II. The evidence shows beyond doubt that Trolson was not authorized to receive deposits
for appellant. Appellant cannot be bound by the unauthorized acts of its agents unless they are
within the scope of their authority. (Yellow Jacket S. M. Co. v. Stevenson, 5 Nev. 229;
Dougherty v. Wells, Fargo & Co., 7 Nev. 368; Lonkey v. Succor M. & M. Co., 10 Nev. 18.)
C. E. Mack, for Respondent.
I. (Evidence reviewed and claimed to fully support the verdict.)
II. It is impossible for a party dealing with a general agent to know the extent of his
power, and in a case like this such knowledge is not required. (Anderson Law Dic. 42; Story
on Agency, Sec. 17; 1 Am. & Eng. Ency. 348; Lobdell v. Baker, 35 Am. Dec. 358; Walker v.
Skipwith, 33 Am. Dec. 161; Chouteaux v. Leech, 18 Pa. St. 224.)
III. Appellant will not be allowed to maintain that the verdict and judgment is not
supported by the evidence, because he failed to move for a new trial and this court cannot
review the evidence. (Burbank v. Rivers, 20 Nev. 81; Boyd v. Anderson, 18 Nev. 348; State
v. Northern Belle, 15 Nev. 386; Williams v. Rice, 13 Nev. 234; City of Stockton v. Creanor,
45 Cal. 247; Reed v. Bernal, 40 Cal. 628; Hihn v. Peck, 30 Cal. 287; Harper v. Miner, 27
Cal. 107.)
There being no motion for new trial, we are not permitted to review the evidence to
ascertain whether it supports the verdict. The only points open for consideration here are
those concerning the refusal of the court to give two instructions asked by the defendant.
1. We must suppose that the first instruction is correctly set forth in the transcript (State v.
McGinnis, 5 Nev. 337), and if so, it was properly refused as being unintelligible.
2. So far as the action is based on the certificate of deposit, the material facts as alleged in
the complaint are that while the defendant, a corporation, was doing a banking business at the
city of Virginia, Nevada, the plaintiff deposited in the bank one thousand and eleven dollars
and ninety cents, for which he received a certificate of deposit; that he then also placed this
certificate with the defendant for safe-keeping, and that "the defendant then and there
promised and agreed to safely keep and surrender and deliver to defendant [plaintiff] the
said certificate of deposit, or pay him the sum of one thousand and eleven dollars and
ninety cents," and that defendant had failed and refused to do either.
tificate with the defendant for safe-keeping, and that the defendant then and there promised
and agreed to safely keep and surrender and deliver to defendant [plaintiff] the said certificate
of deposit, or pay him the sum of one thousand and eleven dollars and ninety cents, and that
defendant had failed and refused to do either.
None of these allegations were denied by the answer, except the one that defendant had
failed or refused to comply with its agreement; on the other hand it alleged that defendant had
returned the certificate to the plaintiff, that he had indorsed it and the money had been paid
thereon. These constituted then, as to this certificate, the only issues in the case.
From the evidence it appeared that one Trolson, an agent of the defendant, without
defendant's authority, had by some means possessed himself of the certificate, and had drawn
the money upon it from the agency of the Nevada Bank, which had succeeded to the
defendant's business, and had converted it to his own use. The plaintiff, however, testified
that he had never seen the certificate after he deposited it with the defendant, and had never
authorized Trolson or any one else to draw the money upon it; that if the indorsement which
appeared upon the back of the certificate was his, of which he was not certain, it was placed
there at the time he left the certificate in the bank. If this evidence was true, and it was
entirely uncontradicted, it certainly cannot be said as a matter of law that this indorsement,
and the subsequent payment by the Nevada Bank to one who had wrongfully possessed
himself of the certificate, proved either a delivery of the certificate to the plaintiff or that he
had received payment thereof; and yet this is in effect what the court was asked by the second
instruction to tell the jury was the law. Under the pleadings and evidence in the case we are of
the opinion that this instruction was properly refused. Judgment affirmed.
____________
21 Nev. 462, 462 (1893)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
OCTOBER TERM, 1893.
____________
Volume 21
____________
21 Nev. 462, 462 (1893) In re Nickals
[No. 1385.]
IN THE MATTER OF THE ESTATE OF W. W. NICKALS,
DECEASED.
Probate LawAdministrator, Who Preferred.Where all parties applying for letters of administration are
equally qualified and competent the court has no discretion, but must appoint the applicant that, under the
statute, has the prior right.
IdemNon-Resident Guardians.Except as a matter of comity, in exceptional cases, a guardian of a minor
appointed in one state is not recognized as such in another state.
IdemStatutes Construed.Section 2724 Gen. Stats. of Nevada, providing that letters of administration shall
issue to the guardian of a minor, instead of to the minor himself, refers to a guardian appointed in this state
and not to one appointed in some other state.
21 Nev. 462, 463 (1893) In re Nickals
The testator, a resident of Eureka county, in this state, died October 25, 1892, leaving a
wife and six minor children, his mother, and a sister, Mrs. Isabella M. Loucks. By his will,
executed in 1889, the widow was appointed executrix, but it is alleged that she left this
country for Germany in September, 1892, and has never since been heard of. The children
and the testator's mother are residents of Oakland, Cal., and Mrs Loucks is a resident of
Eureka county, Nevada. The widow having failed to take out letters testamentary, Mrs.
Loucks, on March 20, 1893, made application that letters of administration with the will
annexed issued to herself and one Marshall Rich, who she asked to be joined with her in the
administration. The testator's mother also asked that they be appointed. G. W. Flick, a
resident of Oakland, Cal., who had been appointed by the courts of California guardian of the
minor children, opposed this application, and asked that letters be issued to himself, upon the
ground that as such guardian he had the preferred right thereto. Upon the hearing it was
ordered that letters issue to him, and Mrs. Loucks and Rich appeal.
Rives & Judge, for Petitioner.
I. The appointment of Flick was not requested by the minor children, and his sole claim
rests upon the fact that he is the guardian of the persons of the minor heirs of the deceased
and of their estate in California. He cannot be recognized in this state as having the slightest
authority as guardian over any property distributable to the minor heirs. He has never been
appointed, nor has he ever given bonds, or otherwise qualified in this state.
II. A sister and another whose appointment is requested by both the sister and the mother
of a deceased person, are entitled to preference as administrators of the decedent's estate over
a non-resident guardian, appointed by a foreign court, of the persons of the deceased's minor
children. (In re. Woods Estate, 32 Pac. Rep. 516; In re. Bedell Estate, 32 Pac. Rep. 323; In re.
Bauquier's Estate, 26 Pac. Rep. 178; In re. Dorris Estate, 29 Pac. Rep. 244; In re. Hyde's
Estate, 30 Pac. Rep. 804.)
R. M. Beatty, and Baker, Wines & Dorsey, for Respondent.
I. Respondent is the legally appointed guardian of the six minor children of the deceased,
and as such he is entitled to letters of administration under our statute, in preference to
every person whomsoever, save and except the widow alone.
21 Nev. 462, 464 (1893) In re Nickals
minor children of the deceased, and as such he is entitled to letters of administration under
our statute, in preference to every person whomsoever, save and except the widow alone.
(Sec. 57, Probate Act.)
The only question involved in this appeal is, who has the preferred right to letters of
administration upon the estate of the deceased. There is no dispute concerning the facts, and
there is neither allegation nor proof that either of the applicants is not duly qualified to
discharge the duties of the trust. It consequently becomes simply a matter of statutory
construction, as the right to the appointment is given by law, and the court has under these
circumstances no discretion concerning it. (Coope v. Lowerre, 1 Barb. Ch. 45; Estate of
Pacheco, 23 Cal. 480; Estate of Bauquier, 88 Cal. 302, 310; Hayes v. Hayes, 75 Ind. 395,
398; 1 Woerner's Law of Adm'n. Sec. 242.)
Gen. Stats. Sec. 2719, provides the following order for the appointment of administrators:
First. The surviving husband or wife, or some person as he or she may request to have
appointed. Second. The children. Third. The father or mother. Fourth. The brothers. Fifth.
The sisters[.] Sixth. The grandchildren. Seventh. Any other of the kindred entitled to share in
the distribution of the estate. Eighth. The public administrator. Ninth. The creditors. Tenth.
Any of the kindred, not above enumerated, within the fourth degree of consanguinity.
Eleventh. Any person or persons legally competent.
Section 2722: No person shall be entitled to letters of administration who shall be: First,
under the age of majority.
Section 2724: If any person entitled to letters of administration shall be a minor,
administration shall be granted to his or her guardian.
Section 2733: Administration may be granted to one or more competent persons,
although not entitled to the same, at the request of the person entitled to be joined with such
person.
Section 2734: When letters of administration have been granted to any other person than
the surviving husband or wife, the child, the father, mother, or the brother of the intestate, any
one of them may obtain the revocation of the letters by presenting to the probate court a
petition praying the revocation and that letters of administration be issued to him or her."
21 Nev. 462, 465 (1893) In re Nickals
revocation and that letters of administration be issued to him or her.
As suggested in Estate of Woods, 97 Cal. 428, concerning a similar statute, there is
doubtless some difficulty in construing and harmonizing these somewhat conflicting sections
so as to determine when the guardian of a minor will have a preferred right to letters of
administration over other applicants, but we do not find it necessary to consider the matter
here. It is admitted that the respondent has no right to the letters except under his appointment
as guardian by the California court, and as such, we are of the opinion that he does not come
within the meaning of section 2724. Except as a matter of comity, and to a very limited
extent, guardians appointed in one state are not recognized as such, or as having any power or
authority in any other state. Speaking of an English decision holding the authority of an
English guardian sufficient to institute a suit for the personal property of his ward in Scotland,
Judge Story says: It has certainly not received any sanction in America in the states acting
under the jurisprudence of the common law. The rights and powers of guardians are
considered as strictly local, and as not entitling them to exercise any authority over the person
or personal property of their wards in other states, and upon the same general reasoning and
policy which have circumscribed the rights and authorities of executors and administrators.
(Story, Confl. Law, Sec. 499.) The same rule applies to real estate. (Id. Sec. 504.) This
language is repeated and approved in Whart. Confl. Laws, Sec. 261, and in Hoyt v. Sprague,
103 U.S. 613, 631, and is certainly the law as understood and administered in the United
States. (Cooley, Const. Lim. 414; Schouler, Dom. Rel. 445; Leonard v. Putnam, 51 N. H.
247.) In other words, as to any other state than the one of the appointment, except as a matter
of comity, he is no guardian and has no rights as such. On the other hand, we have in Gen.
Stats. Sec. 548, et seq., a complete system for the appointment of guardians of minors by our
own courts, who would in this state be vested with all the authority that a guardian could have
anywhere, and to our minds it is very clear that it was this kind of a guardian, instead of one
that has no authority or responsibility, that the legislature had in mind in the enactment of
section 2724, regulating the settlement of the estates of deceased persons.
21 Nev. 462, 466 (1893) In re Nickals
The statute of 1887, p. 58, authorizing the payment of money in certain cases to guardians
appointed in other jurisdictions, rather strengthens than otherwise this view, as it tends to
prove that without such statutory authority the guardian appointed in another state has no
standing before our courts.
It follows that the appellants have the preferred right to the letters of administration in this
case, and should have been appointed.
The order is reversed, with directions to the district court to issue letters to the appellants,
upon their taking the oath of office and giving the necessary bonds.
____________
[No. 1390.]
THE STATE OF NEVADA ex rel. TRENMOR COFFIN, Relator, v. R. L. HORTON,
STATE CONTROLLER, Respondent.
Collection of Public RevenuesBoard of ExaminersState Controller.The state board of examiners has no
authority to employ counsel to assist the attorney general in the prosecution or the defense of actions for
the collection of public revenues. The state controller alone has authority to institute and prosecute such
actions and to direct and superintend the collection of all moneys due to the state.
Specific AppropriationsClaims Against the State.A claim against the state for services rendered, not
authorized by law and allowed by the state board of examiners, cannot be paid out of the contingent
expense fund, which is an appropriation for particular purposes designated in the act making the
appropriation, and the payment of such claim is forbidden by sec. 1811, Gen. Stats. of Nevada.
Original application for a writ of mandate.
Trenmor Coffin, in pro. per. for Relator.
(No brief on file. Case argued orally.)
J. D. Torreyson, Attorney General, for Respondent.
(No brief on file. Case argued orally.)
This was an original application to this court for a peremptory writ of mandamus.
writ of mandamus. The petitioner, Trenmor Coffin, seeks to compel R. L. Horton, the state
controller, to draw his warrant on the state treasurer in favor of relator for the sum of two
hundred and fifty dollars, alleged to be due and owing from the state of Nevada to relator. By
the affidavit upon which this application is based, it appears that on the 16th day of January,
1893, there was pending in and on the calendar of this supreme court a cause on appeal from
the district court of Lincoln county, Nevada, entitled Sawyer v. Dooley;' that said action was
brought and prosecuted for the purpose of having the law creating the state board of
equalization declared unconstitutional, and the assessment made by order of said board
declared to be illegal and void; that the relator was employed by the state of Nevada to assist
the attorney general in the argument and presentation of the said cause in the supreme court;
that it was agreed that the relator should receive the sum of two hundred and fifty dollars for
his labor and services; that on the 5th day of May, 1893, the board of examiners allowed said
claim; that the said claim, together with the indorsement of the board of examiners allowing
the same, was presented to the controller in the month of May, 1893, and said controller
requested to draw his warrant on the treasurer in favor of the relator for the sum of two
hundred and fifty dollars, but said controller refused, and still refuses, to draw said warrant;
that there is, in the treasury of the state unexpended appropriation of public money sufficient
in amount to pay said claim. It is admitted by the attorney general that the relator did assist
in arguing and presenting the case of Sawyer v. Dooley before the supreme court, and that the
services rendered by the relator were reasonably worth the sum claimed. The respondent, in
answering the affidavit, denies that the relator was employed by the state of Nevada, by any
one who had authority so to act or bind said state in actions of this character; denies that it
was agreed that the relator should have the sum of two hundred and fifty dollars for his said
services, or any sum of money; denies that there is any money in the state treasury applicable
to the payment of the claim of relator. From the testimony introduced on the hearing of the
application it could be inferred that the relator was led to believe, from conversations had
between the board of examiners and himself, that his services would be acceptable, and with
that impression on his mind he did assist the attorney general in presenting the case
before this court; yet we know of no law authorizing the board of examiners to employ
counsel to assist the attorney general in the prosecution or defense in actions for the
collection of the public revenue.
and with that impression on his mind he did assist the attorney general in presenting the case
before this court; yet we know of no law authorizing the board of examiners to employ
counsel to assist the attorney general in the prosecution or defense in actions for the
collection of the public revenue.
Section 1779, Gen. Stats., makes it the duty of the attorney general to attend each of the
terms of the supreme court, and there prosecute or defend, as the case may be, on the part of
the state, all causes to which the state may be a party.
Section 1813 makes it the duty of the state controller to institute and prosecute, in the
name of the state, all proper suits for the recovery of any debts, moneys or property of the
state, or for the ascertainment of any right or liability concerning the same. He shall direct and
superintend the collection of all moneys due to the state. And in order that the controller may
be in a position to carry out the provisions of the above act, the legislature has, at each and
every session since the organization of our state government made appropriations, and placed
the same under the immediate control of that officer. The appropriation for 1891 reads as
follows: For enforcing the collection of revenue and prosecuting delinquents by the state
controller, one thousand dollars. The act of 1893 reads: The sum of five hundred dollars is
hereby appropriated out of any moneys in the general fund, not otherwise appropriated, for
enforcing the collection of revenue of this state and prosecuting delinquents. Said sum of five
hundred dollars shall, at all times, be under the direction and control of the state controller of
this state for the purpose of carrying out the provisions of this act. No money can be drawn
from that appropriation without the services rendered have been performed at the request of
the controller.
The relator contends that, notwithstanding he was not employed nor requested by the
controller to assist the attorney general, yet having done so, and the board of examiners
having approved of said act and allowed his claim, it was the duty of the controller to have
drawn his warrant, and made it payable out of the contingent expense fund. We cannot agree
with the relator. That appropriation is made for particular purposes designed by the act
making the appropriation, and it would be in clear violation of the second subdivision of
section 1811, Gen. Stat., which reads: And no claim for services rendered or advances
made to the state or any officer thereof, shall be audited or allowed unless such services
or advancement shall have been specially authorized by law, and an appropriation made
for its payment."
or advances made to the state or any officer thereof, shall be audited or allowed unless such
services or advancement shall have been specially authorized by law, and an appropriation
made for its payment. The services rendered in this case were not authorized by law, because
the employment was not authorized nor made by the party having authority to bind the state,
and there is no appropriation from which the amount claimed to be due can be paid.
The board of examiners have unlimited power to investigate the merits of all claims
presented for allowance and may act upon facts within the knowledge of its members, as well
as upon evidence obtained from other sources (Gen. Stat. Sec. 1898); and its duty in relation
to claims for services rendered to or on behalf of the state, where the same has not been
authorized by law, and no appropriation has been made upon which the controller can draw
his warrant, similar to the one under consideration, is pointed out by section 1895, Gen. Stat.
of this state. Application for the peremptory writ must be denied and it is so ordered.
____________
21 Nev. 469, 469 (1893) Edwards v. Carson Water Co.
[No. 1378.]
T. J. EDWARDS and J. M. WRIGHT, EXECUTORS OF THE ESTATE OF S. C. WRIGHT,
DECEASED, Appellants, v. THE CARSON WATER COMPANY, A CORPORATION,
Respondent.
CorporationsContracts of OfficersWhen Not Responsible for.A corporation cannot be held responsible
for a contract of its officers, or agents, unless it affirmatively appears that such officers or agents were
authorized to make the contract, or that the corporation received the benefits derived from the contract.
IdemEvidence of Powers of Officers.Evidence reviewed and held to indicate that respondent did not, by its
course of dealing, hold out its officers as possessing the power to make contracts for it without express
authority to do so.
IdemImplied PowersAuthority of Officers.When the powers of a corporation to borrow money and to
execute and put into circulation its negotiable paper are only implied and incidental, such powers are not to
be lightly inferred as existing in its officers, nor are such officers justified in exceeding their instructions
from the board of trustees, or those contained in the by-laws.
IdemEvidenceUnauthorized NoteFailure of Consideration. Evidence reviewed and held that the note in
suit does not bind respondent because it was executed without authority from
respondent's board of trustees, and also because it was executed without any
consideration being received by respondent.
spondent because it was executed without authority from respondent's board of trustees, and also because it
was executed without any consideration being received by respondent.
IdemExecution of NoteAgency.Evidence reviewed and held that the note in suit, purporting to be
respondent's note, was given and received to secure a personal debt of respondent's president for money
intrusted to him by respondent with which to discharge its debts and which he retained with the knowledge
and consent of the payee of the note and without the knowledge or consent of respondent. Further held, that
under such circumstances, respondent's president did not act as an agent but for himself and that respondent
is not bound by his acts or chargeable with his knowledge.
IdemAuthority of Officers to Renew a Note.When affirmative authority from the board of trustees of a
corporation is necessary to authorize its officers to execute its promissory note, the same character of
authority is required to enable them to legally renew such note.
IdemTrusteesUnauthorized Execution of Note Under Misapprehension of FactsRatification.When two
of the three trustees of a corporation sign an unauthorized note without the knowledge or consent of the
third, and one of them signs under a misapprehension of the facts, the note being for the individual benefit
of one of the signers and not for that of the corporation, the property of the third trustee will not be bound
by such note, unless, after full information of all of the material facts and an opportunity to act, he ratified
the acts of the other two.
RatificationUnauthorized Note.Evidence reviewed and held to be insufficient to establish ratification, either
express or implied, by respondent of the unauthorized execution of the note in suit.
IdemKnowledge Necessary to Raise Presumption of.To constitute ratification, by either an individual or a
corporation of the unauthorized acts of agents, every detail of the transaction must be made known to the
principal. Statements rendered by the secretary of a corporation, showing only its indebtedness in gross, do
not impart such information of a particular item of the indebtedness as will raise the presumption that the
corporation, by its silence and acquiescence, ratified the unauthorized acts of its officers in incurring such
item of debt.
PracticeGranting or Refusing New TrialSound Discretion of Trial Judge Not Disturbed by Appellate
Courts.The granting or the refusal of a motion for a new trial on the ground that the evidence does not
support the findings rests in the sound discretion of the trial judge, and such order will not be disturbed by
appellate courts when based upon conflicting evidence, and made in the exercise of a sound discretion.
(Bigelow, J., dissenting.)
The action was begun by S. C. Wright, but upon his death his executors were substituted
as parties plaintiff. The other facts sufficiently appear in the opinion.
Rives & Judge, for Appellants.
I. The note sued upon was executed by the president and the secretary of respondent, as
had been the custom of respondent, commencing with the note of 1875. The president and the
secretary were not only officers of respondent but were also members of and constituted a
majority of respondent's board of trustees. Under such circumstances appellant's testator had
the right to assume that respondent's president and secretary were acting within the scope of
their authority when they executed the note. (Credit Co. Limited v. How. Machine Co., 54
Conn. 357; Fidelity Co. v. Shenandoah V. R. Co., 32 W. Va. 244; Beach on Private
Corporations, Sec. 186.)
II. Respondent having had the use of the money represented by the note since 1875, and
having had the benefit of the acts of its officers in postponing the time of payment by renewal
of the note, cannot now complain of the acts of its officers respecting the note. (Dexter,
Horton & Co. v. Long, 2 Wash. 439.)
III. Even though the act of respondent's president and secretary in executing and
delivering the note, without a resolution of the board of trustees, was in excess of their
authority, yet the evidence proves ratification of their act by respondent. The monthly
payment of interest on the note by respondent without objection constituted a complete
ratification. (Daniel on Nego. Insts. Vol. I, Sec. 317; Beach on Private Corporations, Vol. I,
Secs. 196, 202, 205; Morawetz on Private Corporations, Secs. 78, 79, 252.)
IV. The note, in renewal of which the one sued upon was given, was not barred by the
statute of limitations at the time of the renewal. The interest payments by respondent kept it
from outlawing. (Stat. of 1877, p. 114.) The evidence clearly shows the monthly payments of
interest by respondent. (Evidence reviewed.)
V. Respondent under its certificate of incorporation is authorized to purchase property.
This authority pre-supposes the power and authority to contract debts when necessary for the
purposes of paying for property purchased. Whenever a corporation has the right to contract a
debt it may draw a bill or give a note in payment of it, or borrow money to pay it, and such
has been the well established custom of respondent from the time of its incorporation.
or give a note in payment of it, or borrow money to pay it, and such has been the well
established custom of respondent from the time of its incorporation. (1 Parson's Notes and
Bills, 164; Moss v. Averill, 10 N. Y. 449; Barry v. Merchants' Exchange Co., 1 Sand. Ch.
280; Partridge v. Badger, 25 Barb. 146; Stratton v. Allen, 16 N. J. Eq. 229; Barnes v.
Ontario Bank, 19 N. Y. 152; Leavitt v. Blatchford, 17 N. Y. 521; Smith v. Eureka Flour
Mills, 6 Cal. 1; Came v. Brigham, 39 Me. 35; Com. Bk. v. Newport Man. Co., 1 B. Mon. 13;
1 Daniel Nego. Instr. 381.)
J. D. Torreyson, for Respondent.
I. Respondent's by-laws do not authorize its president and secretary to execute the
corporation's notes. The note of 1879, of which the note in suit was an attempted renewal,
was executed by respondent's president and secretary without authority from or knowledge of
respondent. The note in suit was executed by the president and the secretary of respondent
without respondent's authority or knowledge, and was given without consideration, because
the note which it attempted to renew had outlawed seventeen months before, which was
equivalent in law to payment.
II. The execution of the note in suit was never authorized by respondent's board of
trustees. Its execution was the unauthorized individual acts of respondent's president and
secretary. The management of respondent's affairs is intrusted to a board of three trustees,
whose powers and duties are defined under by-laws. The trustees have no authority to act
except when assembled at a board meeting. They must meet and act as a board and all must
be notified of the meeting or the acts of those meeting will be null and void. (Edgerly v.
Emerson, 23 N. H. 555; Simon v. Sevier Co., 14 S. W. Rep. 1101; Baldwin v. Canfield, 26
Minn. 43; 5 Nev. 224, 229; 6 Nev. 51; Vol. 17 Am. & Eng. Ency. of Law, 83.)
III. An agent having general authority to manage his principal's business, has by virtue of
his employment no implied authority to bind his principal by making, accepting or indorsing
negotiable paper. (Mechem on Agency, Sec. 398; N. Y. Iron Mine v. Bank, 39 Mich. 644.) A
resolution by two directors, in the absence of a third director not sufficiently notified, will not
authorize the execution of a mortgage. (Doyle v. Mizner, 42 Mich. 332.) To render a note
valid signed by an agent of a corporation the power of the agent must be shown.
agent of a corporation the power of the agent must be shown. (Lawrence v. Gebhard, 41 Barb
575; Benedict v. Lansing, 5 Denio, 284; Dobbins v. Etowah Mg. Co., 75 Ga. 238.) The
secretary has no power to bind the company. (Bank v. Hogan, 47 Mo. 472; Gregory v. Lamb,
16 Nev. 205.)
IV. The president and secretary of respondent had no authority to contract debts or make
notes in the name of respondent. That power under the charter and by-laws belonged solely to
the board of trustees assembled and acting as such. The authority of an officer of a
corporation to execute its note depends upon the by-laws, custom or resolution of the board
specifying the particular officers to execute the note. (Vol. 1 Beach on Corp. Sec. 187; Foster
v. Ohio-Colo. Red. & Mg. Co., 17 Fed. Rep. 130.) Persons dealing with corporations are
bound to take notice of their constitutions, by-laws and ways of doing business. (Bocock v.
Alleghany C. & I., 82 Va. 913; Relfe v. Rundle, 103 U.S. 223; First Nat. Bank v. Gifford, 47
Iowa 575; De Bost v. Albert Palmer Co., 35 Hun. 386; Alexander v. Cauldwell, 83 N. Y. 480;
Rossiter v. Rossiter, 8 Wend. 494.)
V. The execution of the note being an unauthorized act it could only be ratified by the
unanimous consent of the shareholders. (Morawetz on Corporations, Secs. 76, 77.)
Ratification to be valid must be with the full knowledge of all of the facts, and the burden of
proof and all its essentials rests upon the person asserting it. (Storey on Agency, Sec. 239;
Wharton's Agency, Sec. 614; 7 Nev. 76; 4 Cal. 481.) When the adoption of any particular
form or mode is necessary to confer the authority in the first instance, there can be no valid
ratification except in the same manner. (Wharton on Agency, Secs. 65, 83 and note 7;
Despatch Line v. Bellamy, 12 N. H. 232; Blood v. Goodrich, 12 Wend. 525; Mechem on
Agency, Sec. 136; McCracken v. City of San Francisco, 16 Cal. 591.)
This is an appeal from an order of the district court granting the respondent's motion for a
new trial. The action was commenced to recover the sum of two thousand dollars alleged to
be due on a promissory note, which is in words and figures as follows:
$2,000.00. Carson City, Nev., December 8. 1886
One day after date we, or either of us, promise to pay to the order of Sam C. Wright two
thousand dollars in gold coin of the United States of America, at their office in Carson, for
value received, with interest payable monthly in like gold coin at the rate of one and
one-fourth per cent. per month from date until paid. Protest as evidence of presentment and
non-payment is hereby waived.
[Signed] Carson Water Company.
By Alfred Helm, Pres. Carson Water Co.
By G. W. Richard, Secy.
We gather from the record the following facts: Some time prior to the incorporation of the
Carson Water Company, Alfred Helm and Henry R. Rice purchased the land upon which the
company's reservoir is constructed and the water right connected therewith, from W. P.
Warren, and gave their promissory note in payment therefor in the sum of two thousand
dollars. On the 29th day of December, 1874, the company was incorporated and has been in
existence ever since. The affairs of the company are controlled by a board of three trustees.
Some time prior to August, 1875, the Warren note becoming due, or Warren wanting his
money, Mr. Rice induced Sam C. Wright to take up the note, which he did at a discount of
one hundred and fifty dollars. On the 2d day of August, 1875, at a meeting of the board of
trustees of said company, the president of the Carson Water Company was empowered and
instructed to make, execute and deliver on behalf of the company and as its act and deed, a
promissory note to S. C. Wright, at ten days' sight, for the sum of two thousand dollars to
retire the note of W. P. Warren. In compliance with said resolution, on the 2d day of August,
1875, the following note was delivered to S. C. Wright:
$2,000.00. Carson City, August 2, 1875.
At ten days' sight we promise to pay S. C. Wright or order the sum of two thousand dollars
in gold coin of the United States, and interest at the rate of one and one-fourth per cent. per
month for value received.
(The signatures have been torn off.)
On the 1st day of July, 1879, the note of August 2, 1875, not having been paid, a new
note was given in figures and words as follows: "$2,000.00.
$2,000.00. Carson City, July 1, 1879.
One day after date, without grace, we promise to pay to Sam C. Wright, or order, the sum
of two thousand dollars, payable only in gold coin of the government of the United States, for
value received, with interest thereon in like gold coin at the rate of one and one-half per cent.
per month from date until paid.
T. C. Pickney, Secretary.
(Other signature torn off.)
There does not appear to have been any order or resolution of the board of trustees
authorizing the making or giving of the above note. In 1881 the Carson Water Company
being indebted to a number of parties, borrowed money to pay them off.
The following is the testimony of Alfred Helm, who was then the president of the
company, drew the money and was authorized to pay off the indebtedness: On or about the
10th or 12th or 15th of Marchearly in March anywaywe borrowed some money in San
Francisco to take up some notes of the company outstanding in San Jose, and also to take up
this note of Mr. Wright's. I went to San Jose and paid off the notes there and took a check in
my own name, I think, to come up here to settle this note up. After I got homeI got home
Sundayand on Monday following I met Mr. Wright and I told him I had the money to take
up that note. We went to Wells-Fargo, where he has got a tin box. He went into the vault, got
the box and brought it on the counter, opened the box, took out the note, held it in his hand. I
said to him that I was in a tight place at that time myself, and I said to him, Sam, you don't
need this money and I need it awful;' and I said, I will give you my third of the water
company's stock as security and let me keep this money.' I had three hundred and thirty-three
shares and I said, Give me this two thousand dollars and you can have the stock,' and he
asked me about the stock, and how much there was of it, and finally he said, I don't believe I
want your stock, but let it run as it stands and you can pay it in a few months, and you can pay
the interest and let it be as it is and not make any change.' I objected to it, but he said, Let it
be as it is.' Afterwards I went to the secretary, Mr. Richard, and told him I used the money
represented by the check. I paid my debts with some and bought stock with the rest. I ordered
the interest paid at the office charged to me."
the office charged to me. This conversation referred to the note of July 1, 1879.
Question by the court: Was there two thousand dollars due from the company to Mr.
Wright at the time of the execution of this note of December, 1886?
Answer. No, sir; I suppose it was due from me. But at the same time he met me, and said I
must either pay the moneyI think he spoke to me a day or two before, and wanted to know
if I could pay up the money and I said, No,' and he said that note was about run out, and he
said he would have to have a new note. He had a note, written by himself, and he told me to
sign it as the president of the company, and he asked me to take it to Mr. Richard and get him
to sign it, and I think I copied the note. Anyway, that is the way that note was signedas you
see it there.
The shareholders of the company did not know anything about the note of 1886, but I
knew about it. There was nothing in the books of the company, that I know of, about the note
of 1886 the interest was charged to me every month, and that was done under my
instructions. In reply to a question asked Mr. Helm as to how the rate of interest happened to
be reduced in the note of 1886 from that charged in the note of 1879, he answered, I don't
recollect just the time it was done, but I went to him and told him that I wanted him to reduce
it, because I thought we were paying too much interest. I told him, You know that I have to
pay that interest myself, and I can't afford it;' and he said to me, Let the interest go at one and
one-fourth per cent.' That is the way the note of 1886 came to be drawn with interest at the
rate of one and one-fourth per cent. I think that was the reason that I rewrote the note that he
had written himself, and I changed the rate from one and one-half to one and one-fourth per
cent. per month. I had a check of the Carson Water Company in my possession in the month
of March, 1881, for the purpose of paying the note then outstanding in the name of Mr.
Wright, and for the purpose of paying it to Mr. Wright.
Mr. Wright denied that he ever had any such conversation as testified to by Mr. Helm in
relation to the note of 1879. It appears from the books of the company that the interest paid
upon the note given in 1879, as well as that paid on the one given in 1SS6, was charged to
Mr.
given in 1886, was charged to Mr. Helm from May 31, 1881, to and including the month of
August, 1889.
Mr. Richard, the secretary, testified to a question asked, How did the interest come to be
charged to Mr. Helm? and answered: Mr. Helm said, That Wright note is mine, and in
paying interest charge it to me.' He said, I will protect that note at all hazard.' Mr. Richard
also testified that there was no order of the board of trustees authorizing the renewal of the
note of 1879 or 1886 by the president and secretary; that he had never notified the
stockholders of the signing of the note of 1886, or that such a note was in existence; that so
far as he knew, Helm and himself were the only stockholders that knew of the existence of
the note of 1886, and Mr. Helm and himself had never met as a board of trustees to issue the
note of 1886. The circumstances under which I signed the note of 1886Mr. Helm brought
that note to me, saying he wished to take up the other note, and saying that he had secured a
reduction in the interest from one and one-half to one and one-fourth per cent. He wished to
take up the note that Mr. Wright held, because he had secured a reduction in the interest. It
was at the request of Mr. Helm that I signed that note.
H. M. Yerington testified that he was now and had been since 1889 president of the
Carson Water Company; that he first became acquainted with and interested in said company
in 1877; that he owned two thirds of the stock; that he had been a trustee of the company
since 1877; that it has always been the custom of the company, when it wished to borrow
money, to do so by resolution of the board of trustees, introduced and passed at a meeting
thereof; that the corporation never authorized the renewal of the note of 1875 with the note of
1879 and the note of 1886, and he never knew nor heard of the renewal of the notes, nor the
giving of the notes of 1779 [1879] and 1886, until after he was elected president in 1889. The
following is the manner in which Mr. Yerington says he found out about this transaction:
About two and a half or three years ago I asked the secretary of the company to give me a
balance sheet showing the affairs of the company in full. I had not had any and I was not
posted with regard to the affairs of the company, and I wanted to see what we were doing.
Mr. Richard then came to my office, I think, and he told me about the existence of this note of
1886, and I was very much surprised about it, as I didn't think we owed anybody anything.
didn't think we owed anybody anything. We had borrowed a large amount from the Firemen's
Fund in San Francisco in 1881, I think, and paid off the debts of the company. We had paid
the Bank of San Jose a large sum and we also paid some debts in town here, and the current
receipts of the company were sufficient to pay the interest on the debt and any other
indebtedness. So I was surprised to find a note against us in favor of Mr. Wright; but Mr.
Richard said that was the way it stood. I then found out that the interest had been paid to Mr.
Wright by the secretary, and charged to Mr. Helm, for a number of years, and of course I was
very much surprised to see that, but I finally got to the bottom of the affair. A few days after
that I met Mr. Wright, and I found that he owed the company for water six or seven hundred
dollars, and Helm had explained to me that Wright's water bill had not been collected because
Wright insisted that he had a note against him personally. However, when I met Mr. Wright, I
said to him, You owe this money to the company, and I want you to pay it;' and he said that
Helm owed him, and I said that I could not help that, that the company did not owe him
anything, and I told him he must pay his water bill. I said, You must pay us this bill, as we
owe money ourselves.' Then the conversation returned to the two thousand dollar note, and I
said to him, You loaned that money to Helm, and we will not pay it, as we don't owe it.' I
went to the secretary and told him not to pay any more money to Mr. Wright for Mr. Helm or
for anybody else.
To repeat in part, Mr. Wright emphatically denies that he ever had any such conversation
as testified to by Mr. Helm in relation to the note of 1879. He also denies that Mr. Yerington,
in his conversation with him, denied but what the company owed the money to him, but
Yerington complained about the amount of interest the company had paid on the note. In this
respect the testimony is conflicting. It is conceded that there was no order or resolution made
or entered at any time authorizing the officers of the company, or any one of them, to execute
the notes of 1879 or 1886 in renewal of the note of 1875.
The appellants contend and take the position that it was not necessary for the trustees of
the corporation to have met and passed a resolution or order authorizing the president and
secretary, or either of them, to execute and deliver the notes of 1S79 and 1SS6 in renewal of
the note of 1S75 or that of 1S79 in order to make them corporation notes and binding
upon the corporation; and in support of their position they argue {1) that the president
and secretary were a majority of the board of trustees, therefore it would be useless for
them to call a meeting of the trustees merely for the purpose of adopting a resolution and
spreading it upon the minutes, authorizing themselves to renew the notes; {2) that the
corporation, having the use of the money, is now estopped to deny the indebtedness; and
{3) that the stockholders, having an opportunity to inform themselves as to the liabilities
of the company from the balance sheets, they cannot now be heard to say that they had
not been informed as to this particular note.
1879 and 1886 in renewal of the note of 1875 or that of 1879 in order to make them
corporation notes and binding upon the corporation; and in support of their position they
argue (1) that the president and secretary were a majority of the board of trustees, therefore it
would be useless for them to call a meeting of the trustees merely for the purpose of adopting
a resolution and spreading it upon the minutes, authorizing themselves to renew the notes; (2)
that the corporation, having the use of the money, is now estopped to deny the indebtedness;
and (3) that the stockholders, having an opportunity to inform themselves as to the liabilities
of the company from the balance sheets, they cannot now be heard to say that they had not
been informed as to this particular note.
A corporation is an artificial person created by the statutes of the different states, and is
vested with the power and capacity to make contracts within the scope of the powers
conferred upon it by the act of incorporation and the by-laws which the organizers thereof
may see fit to adopt for the government of the corporation and its officers. (Darmouth
[Dartmouth] College v. Woodward, 4 Wheat. 636; Providence Bank v. Billings, 4 Pet. 561.)
Angell & Ames, treating of private corporations and of what acts are necessary to create and
constitute a corporation, and of its actions, powers, etc., at section 110 say, among other
things: (5) To make by-laws, which are considered as private statutes for the government of
the corporate body. In 2 Kent, Comm. (13th ed.) p. 300, it is said: Where a corporation was
created for the purposes of trade, it resulted necessarily that they must have power to accept
bills and issue notes. But if a company be formed, not for the purpose of trade, but for other
purposes, as, for instance, to supply water, the nature of their business does not raise a
necessary implication that they should have power to make notes and issue bills; and it seems
to be doubted whether there must not be an express authority to enable them to do it. The acts
of corporation agents are construed with equal strictness, and it is the doctrine that though a
deed be signed by the president and cashier of a corporation, and be sealed with its corporate
seal, yet the courts may look beyond the seal, and if it be affixed without the authority of the
directors, and that fact be made affirmatively to appear, the instrument is null and void. It
was the rule of decisions in years gone by that corporations could only be held responsible for
their contracts and agreements made under seal.
their contracts and agreements made under seal. This was before the modern era of trade and
commerce, which has given birth to corporations organized for the purposes of carrying on
and engaging in all branches of business, trades and speculations, and as a rule are
incorporated under a general law of the state, and if not prohibited by statute or by its
by-laws, and the nature of its business is such as to render the borrowing of money necessary
for the purpose of accomplishing the object for which it was incorporated, courts have usually
held that they would imply in the corporation, and those who had control of its affairs, who
were, according to the provisions of its charter carrying on the corporate concerns, an
authority to borrow money for the use of the corporation to carry into effect the purposes for
which it was organized, and without which it could not subsist. (Ketchum v. City of Buffalo,
14 N. Y. 363, and cases cited; Rockwell v. Elkhorn Bank, 13 Wis. 655.)
The Carson Water Company was organized for the purpose of purchasing and laying in
place water pipe, and keeping and maintaining such pipes, leading to and through the town of
Carson City, and elsewhere in the county of Ormsby, state of Nevada, for the purpose of
supplying the people of the aforesaid town and others with water, and for the purpose of
acquiring such real and personal property as might be necessary for the purposes above
mentioned. The affairs of the company were to be managed by three trustees, and its principal
place of business was to be Carson City, Nev. There is no provision in the articles of
incorporation nor in the by-laws that would indicate that the corporation, or any officer
thereof, was authorized to borrow money or execute notes, nor is there anything therein
contained from which we could infer that such a power is vested in the president and
secretary of the company, without first being authorized so to do by the board of trustees. The
president of the Carson Water Company is to preside at all meetings of the board of trustees,
and call special meetings at such times as he may deem necessary for the interest of the
company. The secretary of the company shall keep a record book, in which he shall transcribe
the proceedings of all meetings, and issue stock, and keep a list of the names of persons from
and to whom stock is transferred. Before a corporation can be held responsible for the
contracts of its officers or its agents, it must affirmatively appear that the officer or agent was
authorized to enter into the contract by the company, or that the company received the
benefits derived from the transaction; nor is there anything in the record to indicate that
there was a recognized course of dealings whereby these officers were held out as
possessing any such power; but, upon the contrary, Mr.
ized to enter into the contract by the company, or that the company received the benefits
derived from the transaction; nor is there anything in the record to indicate that there was a
recognized course of dealings whereby these officers were held out as possessing any such
power; but, upon the contrary, Mr. Yerington testified that when the company had to borrow
money they always held a meeting and discussed the advisability of doing so, and, if agreed
upon, would then authorize the officers to execute the papers. When it is within the implied
powers of a corporation to borrow money, execute and put in circulation negotiable paper,
and where there is evidence that in the course of its business it has been in the habit of
executing and circulating its note made by its officers, and this mode of raising money has
been recognized by the corporation, in such case a note, so indorsed by the proper officers,
would be held binding upon it when in the hands of a bona fide holder; but these incidental
powers are not to be lightly inferred, nor are the officers authorized to go beyond the
instructions given them by the board of trustees or those contained in the by-laws.
In the view we take of the case, it is unnecessary for us to review the facts in relation to the
giving of the note of 1875. If Wright purchased the Warren note, he did so at the earnest
solicitation of Mr. Rice, one of the trustees; and if he advanced the money of the company to
retire the Warren note, the company had the use of the money, and the transaction, whichever
way it may have been, was afterwards ratified by the board of trustees. (Seeley v. Lumber Co.,
59 Cal. 23.) The renewal of the note of 1875 by the note given in 1879 stands on a different
footing. There is nothing in the records of the proceedings of the board of trustees showing or
tending to show that the officers of the company were authorized or instructed to renew the
note. But it is not denied but what the company owed the money at the date of the renewal in
1879, and courts have usually held that a contract entered into by a corporation or its officers
may not be within the scope of the powers conferred upon it by its charter or by-laws, yet if
the corporation receives the benefit therefrom in money it will not be allowed to deny the
indebtedness on the ground that its officers were not empowered to make the contract. (Union
Gold Min. Co. v. Rocky Mt. Nat. Bank, 2 Colo. 260; Bradley v. Ballard, 55 Ill. 413, 419;
Whitney Arms Co. v. Barlow, 63 N. Y. 69.)
ney Arms Co. v. Barlow, 63 N. Y. 69.) There is also an increase in the rate of interest
mentioned in the note of 1879 over that of 1875. In the resolution passed by the board of
trustees on the 2d day of August, 1875, authorizing the executing of the note of that date, the
rate of interest was fixed at one and one-fourth per cent per month. By the one made in 1879,
without any authority whatever, interest was provided to be paid at the rate of one and
one-half per cent per month.
The renewal of the note of 1886 does not come within either of the above mentioned rules
in this: there was no order or resolution of the board of trustees, nor a majority thereof,
authorizing the president and secretary to execute the note. The renewal of the note must be
considered in connection with the powers and duties of the officers who renewed the same,
the circumstances under which it was renewed and the benefits derived therefrom by the
corporation. The evidence in the case, as it now stands, is such as to show that the president
of the company has made use of his official position to secure to himself the use of money, by
issuing what purported to be the company's note, without the knowledge or consent of the
board of trustees or the stockholders of the Carson Water Company.
Mr. Helm and Mr. Yerington testified that in 1881 the corporation borrowed a large sum
of money to pay off the outstanding indebtedness of the company, including the two thousand
dollars due Mr. Wright on the 1879 note. Mr. Helm testified that he had the check to pay the
Wright note, and went to the bank of Wells, Fargo & Co. with Mr. Wright to pay it, and while
there had the conversation with Mr. Wright as testified to above; and if the same is to be
taken as true, Helm induced Wright to let him retain the money that had been intrusted to
Helm by the company to pay off the Wright note of 1879, which Helm says he did use for his
individual benefit in paying off his own debts with some and purchased stock with the
balance. The corporation not owing Wright at the time of the renewal of the note of 1886, and
Mr. Helm instructing the secretary to charge the interest thereafter paid on the Wright note to
his individual account, supports the statement of Helm; and the fact that the secretary drew
the checks thereafter payable to the order of S. C. Wright on account of A. Helm was a
notice to Wright, and he should have inquired into the cause of the change of payment of
interest from the name of the company to that of A.
est from the name of the company to that of A. Helm if the statement of A. Helm was not
correct. In answer to a question asked Helm, Who was present when this conversation took
place between yourself and Mr. Wright in the bank? he answered: Nobody was present. I
took pains not to say anything when anybody was around, as I didn't care to expose my
condition at that time. The invalidity of the note of 1886 springs: First, from issuing the
same without being authorized so to do by the board of trustees; second, the corporation was
not indebted to Wright at the time of the giving of the note, and the same was given without
any consideration being received by the corporation. It was not sufficient in this action for the
plaintiff to say: I supposed it was all right and the officers had authority to renew the note.
Persons dealing with corporations are chargeable with notice of the extent of the agent's
powers, and Wright was bound to know that Helm and Richard could not act beyond the
powers vested in them by the board of trustees and the by-laws. (Mechem, Ag. Sec. 276; 1
Pars. Cont. 40-42; Smith v. Association, 12 Daly 305; Mining Co. v. Fraser, 29 Pac. Rep.
668; Owings v. Hull, 9 Pet. 628.) The action of Helm in drawing up the note of 1886, and
signing the same as president of the Carson Water Company, and inducing the secretary to
sign the same, giving as his reason for such request that there was to be a reduction in the rate
of interest, was in excess of their powers. Instead of acting for the corporation, they executed
a note purporting to be a valid obligation of the company, when in fact it was to secure the
individual indebtedness of its president for money which the corporation had intrusted to him
to pay its debts, and which he testifies he was permitted to retain for his own use, with the
knowledge and consent of the debtor, Wright. Under such circumstances, at the time of the
giving of the note of 1886, Helm was acting for himself, and he was not, with respect to the
transaction, an agent at all; and the corporation is not, as to that matter, bound by his acts, nor
is it chargeable with his knowledge.
In the case of Frenkel v. Hudson, 82 Ala. 162, Somerville, J., in speaking of the general
rule that the knowledge of the agent must be imputed to the principal, said[,] It has no
application, however, to a case where the agent acts for himself, in his own interest and
adversely to that of the principle. His adversary character and antagonistic interests take him
out of the operation of the general rule, for two reasons: First, that he will very likely in
such case act for himself rather than for his principal; and, secondly, he will not be likely
to communicate to the principal a fact which he is interested in concealing.
the operation of the general rule, for two reasons: First, that he will very likely in such case
act for himself rather than for his principal; and, secondly, he will not be likely to
communicate to the principal a fact which he is interested in concealing. It would be both
unjust and unreasonable to impute notice by mere construction under such circumstances, and
such is the established rule of law upon this subject. (Mechem Ag. Sec. 723; Aug. & A.
Corp. Secs. 308, 309.) It is a cardinal principle in the law of agency that the powers of the
agent are to be exercised for the benefit of the principal and not for the agent or third parties,
and a person dealing with one whom they know to be an agent, and to be exercising his
authority for his own benefit, acquires no rights against the principal in the transaction. Such
transactions are usually spoken of by the courts as fraudulent, because circumstances known
to both parties make the contract or agreement absolutely void. (Mechem, Ag. Secs. 797,
798.)
It is a well-settled rule in equity that, when the relationship of principal and agent exists,
the agent will not be permitted to make use of his position for his own personal interests. This
rule is strict in its requirements and inflexible in its operation. It extends to all transactions
where the agent's personal interests may be brought into conflict with his acts in the fiduciary
capacity; and it is immaterial as to whether there was fraud, or as to whether the transaction
was entered into with the best of intentions. When the possibility of a conflict exists, there is
the danger to be guarded against by the absoluteness of the rule. It is a violation of duty for
any officer of a corporation to enter into a contract with himself, or to so manage the affairs
of the company as to enrich himself at the expense of the stockholders. Pomeroy, in his work
on Equity Jurisprudence, (volume 2, sec. 959), says: The underlying thought is that an agent
should not unite his personal and his representative characters in the same transaction; and
equity will not permit him to be exposed to the temptation, or brought into a situation where
his own personal interest conflicts with the interest of his principal, and with the duties which
he owes to his principal. See, also, sections 1050, 1051, and notes therein referred to. (1
Beach, Priv. Corp. Secs. 236, 240, et seq.; Pickett v. School Dist., 25 Wis. 553.)
In the case of People v. Township Board of Overyssel, 11 Mich.
225, the court said: So careful is the law in guarding against the abuse of fiduciary relations,
that it will not permit an agent to act for himself and his principal in the same transaction, as
to buy of himself, as agent, the property of his principal, or the like. All such transactions are
void, as it respects his principal, unless ratified by him with a full knowledge of all the
circumstances. (2 Field, Briefs, Sec. 193.) A corporate body can only act by agents, and the
directors or trustees of a corporation occupy a position of the highest trust and confidence.
The utmost good faith is required in the exercise of the powers conferred upon them. They
have no right, under any circumstances, to use their official position for their own benefit or
profit, or for the benefit of any one except the corporation. This is one of the reasons given
why an officer has no right nor authority to vote upon or represent the corporation in a
transaction in which he is personally interested in obtaining an advantage at the expense of
the other stockholders. Therefore, if the testimony of Helm be true, the company did not owe
Wright any money in 1886, when the note was given, but Helm did; and if such was the case,
then the information given by Helm to Richard, upon requesting him to sign the note, as the
interest was to be reduced, was misleading and not in accordance with the facts in the case.
Under such circumstances, the signing of the note cannot be deemed a corporate act, for the
acts of officers of corporations are to be tested by the principles of the law of agency; and no
agent whatsoever can bind the corporation if such agent fails to act in accordance with the
purposes and objects of the corporation and within the scope of his authority. (Lyndon Mill
Co. v. Lyndon Literary & Biblical Inst., 22 Atl. Rep. 576; Reynolds & Henry Const. Co. v.
Police Jury, 11 South. Rep. 238; Miner v. Ice Co., 53 N. W. Rep. 222; Johnson v. Signal Co.,
29 N. E. Rep. 966; Ang. & A. Corp. Sec. 291; Despatch Line of Packets v. Bellamy Manuf'y
Co., 12 N. H. 231; Hoffman v. Insurance Co., 92 U.S. 164; Nelligan v. Campbell, 20 N. Y.
Supp. 234; Field, Corp. Sec. 271.)
In the case of Main Jellico Mountain Coal Co. v. Lotspeich, 20 S. W. Rep. 379, the
president of the company entered into a contract with one of the stockholders to deliver to
him a quantity of coal, the pay therefor to be applied on the payment of the individual
indebtedness of the president to the stockholders. In an action by the plaintiff to enforce the
contract and be permitted to apply the price of the coal on the debt, in passing upon this
question the court said: "The pleadings do not present the question of fraud by way of
defense, but nevertheless, in construing a contract made between officers of a
corporation by which a corporate liability is attempted to be created to the one officer or
the other, that construction should be placed on its terms most favorable to the
corporation; and particularly when the great weight of the evidence, and in fact all of it,
shows that corporate property was being used, by reason of this contract, to pay an
individual debt of one director to the other."
and be permitted to apply the price of the coal on the debt, in passing upon this question the
court said: The pleadings do not present the question of fraud by way of defense, but
nevertheless, in construing a contract made between officers of a corporation by which a
corporate liability is attempted to be created to the one officer or the other, that construction
should be placed on its terms most favorable to the corporation; and particularly when the
great weight of the evidence, and in fact all of it, shows that corporate property was being
used, by reason of this contract, to pay an individual debt of one director to the other.
In the case of Hardin v. Construction Co., 78 Iowa, 729, the board of directors authorized
the officers of the company to execute a note for nine thousand dollars, and a chattel
mortgage upon the rolling stock of the company to secure the payment of the same. The
officers executed the note and mortgage and stipulated therein for attorney's fees in case of
suit for the collection of the same. The plaintiffs commenced suit to foreclose the mortgage.
The district court refused to allow attorney's fees, and the plaintiffs appealed. In passing on
this question, the supreme court said: This was an explicit direction to execute a note for
nine thousand dollars and interest, and no more. The company did not, by any official action,
authorize the execution of a note in any amount exceeding said sum in any event. We think
the court correctly held that the measure of liability was nine thousand dollars and interest.
(Pacific R. M. Co. v. Dayton S. & G. R. Ry. Co., 7 Sawy. 61.)
In the case of New York Iron Mine v. Negaunee Bank, 39 Mich. 648, Judge Cooley, in
speaking of the powers of corporations and agents to borrow money by issuing notes, at page
651 says: It is not disputed by the defense that the corporation, as such, had power to make
the notes in suit. The question was whether it had in any manner delegated that power to
Wetmore. We cannot agree with the plaintiff that the mere appointment of a general agent
confers any such power. In McCullough v. Moss, 5 Denio, 567, the subject received careful
attention, and it was held that the president and secretary of a mining company, without being
authorized by the board of directors so to do, could not bind the corporation by a note made
in its name. Murray v. East India Co., 5 Barn. & Ald. 204; Benedict v. Lansing, 5 Denio,
283, and The Floyd Acceptances, 7 Wall.
ances, 7 Wall. 666, are authorities in support of the view. The plaintiff, then, cannot rest its
case on the implied authority of the general agent. The issuing of promissory notes is not a
power necessarily incident to the conduct of the business of mining, and it is so susceptible of
abuse to the injury, and, indeed, to the utter destruction of a corporation, that it is wisely left
by the law to be conferred or not, as the prudence of the board of directors may determine.
Judge McCrary, in charging the jury in the case of Foster v. Mining Co., 17 Fed. Rep. 130,
said: Upon the first questionas to whether this is the note of the defendant
corporationthat is to be determined upon the question whether the person who executed the
note on behalf of the corporation, Mr. Penn, the treasurer of the company, was authorized to
execute such an instrument. The law upon this subject is that the authority is not presumed
from the mere fact that the person assumed the right to give a note in the name of the
corporation. A corporation is an artificial person, which must act within certain limits. It
differs from a natural person. If an individual gives his note, it is not necessary to prove
anything in the way of authority; but a corporation must act by way of agents, and the
authority of the agent who acts for it is not presumed. It may, however, be shown either by
showing an express authorityas, for example, a resolution of the board of trustees
authorizing a certain party to execute a note on behalf of the corporationor by a provision
of the constitution or by-laws of the corporation authorizing a certain officer to execute
promissory notes. It might be shown in that way, but I believe it is not claimed that there is
anything of this kind here. It may also be shown by the course of dealings of the corporations,
and by facts and circumstances which are sufficient, in the judgment of the jury, to show that
the party who executed the note had the authority. If it was the custom of this corporation to
permit the treasurer to execute its promissory notes, and if he was in the habit of doing so,
with the knowledge of the trustees or of the corporation, which means, of course, the trustees,
they had, by recognizing that custom and acting upon it, themselves become bound by it, and
especially if they received the benefits of transactions of this sort, which they permitted the
treasurer to enter into. It is only, therefore, necessary for you in considering this branch of the
defense to inquire whether the evidence here establishes the fact that Mr.
inquire whether the evidence here establishes the fact that Mr. Penn, the treasurer, was in the
habit of acting for and on behalf of the corporation in executing promissory notes and other
instruments of like character, and whether the corporation was aware of that fact, and made
no objections to it. If you find this to be so, then you will come to the conclusion that the note
was executed by the corporation, and you will proceed then to the other question; that is,
whether the corporation was indebted to Mrs. Foster in the amount of money for which this
note was given.
In the case at bar it was necessary for the plaintiffs to prove that the president and secretary
were authorized by the board of trustees to renew the note in 1886, or that it had been the
custom of the company to transact business in that way, and that the trustees were knowing to
the fact and acquiesced in such procedure. It was also a question of fact to be determined
from the evidence as to whether the Carson Water Company owed S. C. Wright the sum of
two thousand dollars when the note of 1886 was executed, or was it the individual
indebtedness of A. Helm. If the president and secretary of the Carson Water Company did not
have the power to borrow money and execute a note in the first instance without being
authorized so to do by the board of trusteeswhich we think they did notthey did not
possess the power to renew the same without authority from the board so to do; for when the
adoption of any particular form or mode is necessary to confer authority upon agents of
corporations in the first instance, there can be no ratification except in the same manner, or it
should be made to appear that the company was in the habit of issuing promissory notes
without such authorization. In order to hold the corporation responsible upon the note of
1886, it was necessary to show that the officers had authority to renew the same, or that the
company had at that time the use of the money. (Middlesex County Bank v. Hirsch Bros.
Veneer Manuf'g. Co., 4 N. Y. Supp. 385.)
Plaintiffs contend that the action of the president and secretary in executing the note of
1886 has been ratified by the defendant by reason of its having paid the interest becoming due
each month from 1886 until 1889. We do not think that the evidence supports the plaintiff's
contention. Mr. Helm, the president, and Mr. Richard, the secretary, testified that the interest
was paid by Helm from 1SS1 until the payment of interest was discontinued in 1SS9.
was paid by Helm from 1881 until the payment of interest was discontinued in 1889. True it
is that it was paid by company's check, but always on account of A. Helm; and, as we
understand the evidence, the amounts were charged against Helm's private account on the
books of the company. Mr. Helm says: No member of the company knew anything about
this transaction with Wright except myself. Mr. Richard says: I knew nothing about the
giving of the note of 1886, or why it was given, except as Helm told me it was to secure a
reduction in the rate of interest; and at Helm's request I signed it. Mr. Yerington testified
that he was a trustee of the company from 1877 until 1889, when he was elected president.
He was the owner of two-thirds of the stock, and never knew of the existence of the note until
after his election as president in 1889. As soon as he heard of the existence of the note he sent
for Helm, the former president, and Richard, the secretary, and after being informed by them
as to how the note of 1886 was executed, he went and saw Mr. Wright, and informed him that
it was not the company's note, and that the company would not pay it, and instructed Richard,
the secretary, not to pay any more interest on the note. There is no testimony in the transcript
from which we could infer that the corporation had the use of or received any benefit from the
Wright money after 1881. Under these circumstances the making of the note of 1886 should
not be held to be a corporate act. (Craft v. South Boston Railroad Co., 150 Mass. 208; First
Nat. Bank of Middletown v. Council Bluffs City Water Works Co., 9 N. Y. Supp. 860; Bohm
v. Brewery Co., Id. 514; Wahlig v. Manufacturing Co., Id. 739; Westervelt v. Raddle, 55
How. Pr. 370.)
With regard to the question of ratification, it is to be observed that this is not a case, as
presented to us, in which the officers of a corporation have exceeded the powers delegated to
them by the corporate body in entering into an unauthorized contract. When the proceeds of
such unauthorized act have come into the defendant's treasury, and had been used in the
regular course of its business, with the knowledge of the trustees or stockholders, under such
circumstances very slight evidence would be sufficient to establish the company's liability.
But when it is made to appear that such unauthorized contract was entered into by two of the
three trustees, without the knowledge or consent of the third, and in fact one of the two
who signed the note not knowing the facts connected with such renewal and, as appears
from the evidence, not for the benefit of the corporation but for the individual benefit of
one of the two who signed the note, the property of the third, or that of the other
stockholders, if there are any, ought not to be held liable on the void contract, without it
is made clear that the third acquiesced in the proceedings, and ratified the acts of the
other two, after having been fully advised as to all the material facts in the case in given
an opportunity to act.
sent of the third, and in fact one of the two who signed the note not knowing the facts
connected with such renewal and, as appears from the evidence, not for the benefit of the
corporation but for the individual benefit of one of the two who signed the note, the property
of the third, or that of the other stockholders, if there are any, ought not to be held liable on
the void contract, without it is made clear that the third acquiesced in the proceedings, and
ratified the acts of the other two, after having been fully advised as to all the material facts in
the case and given an opportunity to act. The evidence in our judgment is insufficient to show
a subsequent ratification, either express or implied. The president and secretary certainly were
not competent to ratify their own unauthorized acts. (Hotchin v. Kent, 8 Mich. 527; Dabney
v. Stevens, 40 How. Pr. 344; Story, Ag. Sec. 243; Howell v. McCrie, 36 Kan. 652; Combs v.
Scott, 12 Allen, 496; Mallory v. Mallory Wheeler Co., 61 Conn. 141; Despatch Line of
Packets v. Bellamy Manuf'g Co., 12 N. H. 232; Lyndon Mill Co. v. Lyndon Literary &
Biblical Inst., 22 Atl. Rep. 577; Owings v. Hull, 9 Pet, 629; Bohm v. Brewery Co., 9 N. Y.
Supp. 515; Murray v. Lumber Co., 143 Mass. 250; Fitzhugh v. Land Co., 81 Tex. 310;
Dedham Institution for Savings v. Slack, 6 Cush. 411.)
The plaintiffs argue that by reason of the fact that the secretary made out statements
showing the indebtedness of the company, in which the claim of Wright was included, was
sufficient notice from which the stockholders could have informed themselves as to this
claim; and they not having done do, the company is now bound by the acts of the officers
who signed the note. Mr. Richard testified that he did make out statements of the company's
affairs in gross. How many or how often such statements were made out he does not state, but
he does say that he never made out and submitted to the board of trustees an itemized
statement prior to 1889, and that the Wright note was never mentioned at any of the meetings
of the board, to his knowledge. We do not think that statements made out in the manner in
which it is said they were were sufficient to impart knowledge to the stockholders as to who
the creditors or debtors of the company were. 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.
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. (1 Daniel, Neg. Inst. Secs. 316-319; Stark Bank v. United States Pottery Co., 34 Vt.
146; Story, Ag. Sec. 239; Commercial Bank v. Jones, 18 Tex. 816; Smith v. Tracy, 36 N. Y.
82; French v. O'Brien, 52 How. Pr. 398; Combs v. Scott, 12 Allen 497.)
In the case of Yellow Jacket Silver Mining Co. v. Stevenson, 5 Nev. 228, Lewis, C. J.,
speaking for the court, said: So, where it is sought to charge a corporation with the
ratification of an unauthorized act of an agent by reason of its acceptance of some benefit or
advantage from it, it should appear that such benefit was accepted with full knowledge of the
character of the act. The evidence in this case, however, is clear and positive that the board of
trustees which was the authorized agent of the corporation knew nothing of the terms, nor
even of the existence of the lease in question. The money paid by the appellants was reported
by the superintendent to the board as received for ores sold. Nothing seems ever to have
appeared in his reports from which it could even have been inferred that the money paid by or
due from Stevenson to the company was for the use or rental of any portion of the mine. How
then can it be held that the acceptance of money by the board reported to it as being for ores
sold was a ratification of the lease executed to the appellant? The company did not know of
such lease, nor were there any such circumstances connected with the acceptance of the
money as to place it upon inquiry, or to charge it with presumptive notice of its existence. If,
then, it be the law that there must be a full knowledge of all the material facts before the
acceptance of profit or advantage by the principal will be held to constitute a ratification,
surely the respondent here cannot be held upon the lease in question, for it knew nothing of
the material facts respecting it. If it were shown that the board knew of the lease, the
acceptance of payment from Stevenson for the ore extracted would doubtless be sufficient to
establish a ratification; but the contrary being shown, it would manifestly be opposed to the
well-settled rules of law to hold such acceptance to be a ratification.* * * 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.
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, but not to the board, can be made the foundation of an
implied contract on the part of the corporation? (Hillyer v. The Overman Silver Mining Co.,
6 Nev. 55.)
It is to the interest of the public that there should be a speedy termination of a lawsuit; but
there is another principle of public policy that should not be lost sight of, and that is that no
man should be deprived of his property to pay another's debts without it clearly appears that
he has placed himself in that position wherein the law says, You have assumed the
responsibility and you cannot be released therefrom.
The evidence in this case is conflicting and obscure in many particulars. The motion for a
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 the 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 an 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. (Kellenberger v. Market Str. Cable Railway Co., 33 Pac. Rep. 90.)
The order of the district court in granting the new trial is affirmed.
Bigelow, J., dissenting:
For the purpose of clearing away the cloud of dust that seems to envelop this case, I
propose to first ascertain what the case is, and what the issues were that were to be tried in
the district court.
is, and what the issues were that were to be tried in the district court.
The complaint alleges that on December 1, 1886, the defendant made, executed and
delivered to the plaintiffs a certain promissory note, which at the commencement of the
action was, with a portion of the interest, due and unpaid, and for which it asked judgment.
The answer as to the note consists of denials only. It denies that the defendant ever made,
executed or delivered the note in suit. Neither want of consideration, fraud in its execution,
estoppel or payment is plead. To cite authorities to the effect that unless pleaded neither of
these defenses should be considered is carrying coals to Newcastle, but I will refer to the
following: Pom. Rem. & Rem. Rights, Secs. 664, 675, 709, 712, 730; Bliss, Code Pl. Secs.
211, 269, 274, 357; Sharon v. Minnock, 6 Nev. 377; Hanson v. Chiatovich, 13 Nev. 395.
This, then, was the sole issue to be tried: Was the note the defendant's note? If it was,
judgment should go against it; if not, in its favor. A corporation can act only through its
officers or agents. When we wish to ascertain what a corporation has done, we ask what its
authorized agents have done. In this country, for all practical purposes, the board of trustees is
the corporation, so far at least as its relations to the public are concerned. (Railway Co. v.
McVay, 98 Ind. 391.) In this case there is no question but that the power to execute
promissory notes rested in the board of trustees. As the note of 1879, which had been
executed alone by the president and secretary, had been recognized and acted upon by the
corporation for a number of years as a legal and binding obligation against it, it admits of
large question whether these officials were not impliedly authorized to execute also the note
in suit (Wilcox v. Railroad Co., 24 Min. 269; Mechem, Ag. Secs. 84, 274; Story, Ag. Secs.
55, 87); but I will pass that by and look only to the acts of the trustees. That body could have
authorized its execution in the first place or they could subsequently ratify the act of making
it. (Story, Ag. Sec. 244.) In Cook v. Tullis, 18 Wall. 332, 338, Justice Field, said: The
ratification operates upon the act ratified precisely as though authority to do the act had been
previously given. The same principle applies equally to corporations. (2 Mor. Corp. Sec.
618.)
There was no formal resolution of the board ratifying the making of the note, but the
evidence is to my mind overwhelming and conclusive that they did so ratify it by silence
and acquiescence, and are now estopped to question its validity.
making of the note, but the evidence is to my mind overwhelming and conclusive that they
did so ratify it by silence and acquiescence, and are now estopped to question its validity. In
Kelsey v. Bank, 69 Pa. St. 426, 429, the court uses this language: The law is well settled that
a principal who neglects promptly to disavow an act of his agent, by which the latter has
transcended his authority, makes the act his own; and the maxim which makes ratification
equivalent to a precedent authority is as much predicable of ratification by a corporation as it
is of ratification by any other principal, and it is equally to be presumed from the absence of
dissent. Again, in Murray v. Lumber Co., 143 Mass. 250, the court said: When the alleged
principal is a corporation, a ratification may be shown by proving that the officers who had
the power to authorize the act knew of it and adopted it as a valid act of the corporation,
although no formal vote is passed by them. Mr. Morawetz says: The ratification by a
corporation, acting through one of its agents, of an unauthorized act performed by an inferior
agent, may be shown in the same manner as a ratification by the company directly.
Acquiescence is good evidence of consent, and if the agents of a corporation who have the
power to ratify an unauthorized act performed by another agent manifest no dissent after full
notice, a ratification of the act may often be presumed. (Mor. Corp. Sec. 633.) In 1 Beach.
Corp. Sec. 195, the rule is stated thus: Any officer or agent of a corporation may give
validity to the unauthorized acts of his subordinates, provided they be of a kind which he
might have authorized them to perform. Thus directors may ratify the unauthorized acts of
their appointees or the acts of other corporate officers, which should not have been done
without authority first obtained from the directors. * * * Ratification by directors may be
made by accepting the report of a committee stating the facts, or by the acquiescence of a
majority of the directors with full knowledge of the contract so ratified. Ratification may also
be presumed from a failure to exercise promptly the right of disaffirmance. Sherman v.
Fitch, 98 Mass. 59, was an action upon a mortgage executed by the president of the
corporation without formal authority. The court said (page 64): The remaining consideration
relates to the authority of Sampson to execute the mortgage in behalf of the corporation. It is
not necessary that the authority should be given by a formal vote.
Such an act by the president and general manager of the business of the corporation, with the
knowledge and consent of the directors, or with their subsequent and long-continued
acquiescence, may properly be regarded as the act of the corporation. Authority in the agent
of a corporation may be inferred from the conduct of its officers, or from their knowledge and
neglect to make objection, as well as in the case of individuals. The absence of one of the
directors in Europe could not deprive the corporation of the capacity to act and bind itself by
the acts of the officers in actual charge of its affairs. Hundreds of authorities could be cited
to the same effect, but these are sufficient to demonstrate that, if a board of trustees of a
corporation, or a majority of them, know of and acquiesce in the making of a promissory note
by an unauthorized officer, it becomes the note of the corporation. Upon this point it only
remains to show from the evidence that such was the case here.
In 1875, the plaintiff purchased a note against defendant for the sum of two thousand
dollars. On August 2d of that year, by resolution of the board of trustees, a new note was duly
made and delivered to him in place of the old one. Interest was paid on this every month up to
1879, when it was renewed by the president and secretary, but without any formal
authorization by the board of trustees. Interest was regularly paid on this note up to 1886,
when it was again renewed by the giving of the note in suit, on which interest was paid up to
1889. I do not overlook the fact that from 1881, the interest so paid was charged to Mr. Helm,
but that fact, as I will hereafter show, is immaterial, and is certainly immaterial to the
question now in hand, which I will again repeat, is simply whether this note is the note of the
corporation. From 1881 the board consisted of Mr. Helm, the president, Mr. Richard, the
secretary and Mr. Yerington. Two of these trustees, composing a majority of the board,
signed this note. These two could have met at any time, and either with or without the consent
of the third, could have entered upon the minutes a formal order authorizing the making of
the note or ratifying it after it was made. The fact that they also occupied the positions of
president and secretary would in no manner curtail their power as trustees. These twoa
majority of the boardcertainly knew of and acquiesced in the continued existence of the
note of 1879, and as they made the note of 1886, and knew all about it, there is not much
chance to say that they did not, as trustees, acquiesce in and ratify their act as president
and secretary in executing the latter.
they did not, as trustees, acquiesce in and ratify their act as president and secretary in
executing the latter. This, under all the law that I have found or have knowledge of, made it
the note of the corporation, and entitled the plaintiff to the judgment obtained by him. In
Dexter, Horton & Co. v. Long, 2 Wash. St. 435, where a somewhat similar situation existed,
the court said: Another objection raised by the appellant is that the mortgage was not
executed by the trustees of the defendant corporation, but that the president and secretary by
whom the mortgage was executed had no authority to enter into such a contract, and that it
was therefore ultra vires. Even conceding that the contract was ultra vires, and that the
appellant has placed himself in a position in this case to legally allege it, under the testimony
in this case it will not avail against the plaintiff. The corporation was attempting to execute a
bona fide mortgage. It was within the power of the corporation to execute it, and its officers
and agents were trying to carry out the will of the corporation. There were but three trustees,
and two of them signed the mortgage, but not as trustees. They did not go through the form of
an authorization by resolution, but a majority of those who had power to pass the resolution,
by a short cut brought about the result which the resolution would have authorized.
In regard to the want of action by the board, Mr. Helm testified:
Question. With reference to the note of 1879, was the making of that note, or the
execution and delivery of that note of July, 1879, to Mr. Wright, ever ratified by the board of
trustees of the corporation?
Answer. I always supposed that the note had been authorized by the board, and how it
happened that the record was not made of it I cannot tell. * * *
* * * * * * * * *
Q. It was the same course of proceeding with reference to the note issued December 8,
1886, that was proceeded with with reference to the issuance of the note of 1879; that is, there
was no ratification or authorization of either, so far as the records show, or so far as your
recollection serves you?
A. I never thought about it being required by the by-laws.
If these two trustees that signed this note had entered a formal resolution upon the minutes,
directing or ratifying its execution, there could then be no question that it would be the
note of the corporation; and under the circumstances existing here, to make the case turn
upon the fact that they neglected to do so, or overlooked the necessity of its being done,
is in my judgment to sacrifice justice to the veriest technicality.
execution, there could then be no question that it would be the note of the corporation; and
under the circumstances existing here, to make the case turn upon the fact that they neglected
to do so, or overlooked the necessity of its being done, is in my judgment to sacrifice justice
to the veriest technicality.
But if these two trustees had had nothing to do with the execution of the note, and had
known no more of it than Mr. Yerington did, under the uncontradicted evidence in the case
the corporation should still be held to be estopped by acquiescence and laches from
contesting its validity.
Mr. Richard, the secretary, testified as follows:
Question. Did you, as secretary of the defendant corporation, make out and submit to the
board of trustees of defendant, at its meetings held at various times between December 8,
1886, and August 1, 1889, and also between December 8, 1886, and the date you became
secretary of the defendant, statements and balance sheets showing in gross that this note with
other indebtedness, was, during said time, outstanding, and also that interest was being paid
on it monthly by the company to Wright?
Answer. I Did.
Q. Was there ever any objection raised at any time to the payment of the interest on this
note?
A. No, sir.
Q. No member of the board ever objected to the payment of the interest?
A. Not until the time of its discontinuance.
Q. That was in 1889?
A. Yes, sir.
* * * * * * * * *
Q. The note of 1886 appears on your books as an outstanding indebtedness?
A. Yes, sir.
Q. Why was bills payable never credited to that?
A. I am not aware of that; I presume the credit is there.
Then, during all these years, the books of the company showed that this note was a part of
its outstanding indebtedness. In every report made by the secretary it was included as a part of
that indebtedness, and these reports showed, as of course the books did, that interest was
being paid upon it every month. In addition, every member of the company must have known,
if he knew anything about the company's business, that the two thousand dollars borrowed
to pay the note were still in Mr.
the two thousand dollars borrowed to pay the note were still in Mr. Helm's hands.
Mr. Yerington testified that he did not know of the existence of either the note of 1879 or
of 1886, but if not, with all these means of information before him, it must be admitted that
he was not paying very close attention to the affairs of the company. It is possible that he had
such confidence in the other trustees that he did not attend the meetings of the board, or paid
but little attention to the business when he did; but it is hardly necessary to say that, under the
circumstances, such voluntary want of knowledge upon the part of one or all the trustees
should not relieve the company of a liability that would have existed if they had had such
knowledge. Every member of the company had such knowledge or such notice and means of
knowledge of the note that he must be held to have known it. It is one of the simplest
principles of justice that a man must not shut his eyes to the means of knowledge surrounding
him and then claim that he did not know that which he could so easily have ascertained. If his
confidence in others has misled him, he, or the company he represents, and not another, who
had no means of knowing of the ignorance of the first, should suffer the consequences. Under
the circumstances shown by the testimony, Wright had no possible reason to suppose that
Yerington and all other members of the company did not know of this note. The slightest
examination of the books or reports, a mere inquiry as to whom or for what the company
owed this money, would have made the whole thing clear. The authorities to the effect that
want of knowledge, under such circumstances, constitutes no defense, are numerous and well
considered.
In Morawetz on Corporations (section 630) the author says: In some instances a principal
may be estopped from repudiating an unauthorized act, of which he had no actual knowledge;
as where the principal ought by reason of the relation of the parties to have known of the act,
and cannot in equity and good conscience set up his ignorance. Nor can the shareholders of a
corporation avoid responsibility for the unauthorized acts of their agents by abstaining from
inquiry into the affairs of the company, or by absenting themselves from the company's
meetings, and at the same time reap the benefit of their acts in case of success. If a
shareholder fails to take the trouble of inquiring into the affairs of the corporation of which
he is a member, or to attend its meetings, it seems no more than just that his supineness
should be construed as an acquiescence in the proceedings of the majority."
trouble of inquiring into the affairs of the corporation of which he is a member, or to attend
its meetings, it seems no more than just that his supineness should be construed as an
acquiescence in the proceedings of the majority. In Olcott v. Tioga Railroad Co., 27 N. Y.
546, where the question was whether the corporation had ratified the unauthorized act of the
president in executing a bill of exchange, the court said (page 560): But the subsequent
rendering of accounts to the board of managers containing entries of such payments,
unobjected to on the part of the board, affords a strong presumption of a ratification of those
acts. In Conover v. Insurance Co., 1 N. Y. 290, 292, it was said: And it is insisted that,
inasmuch as the board never by any formal act gave their sanction, and the by-laws required
the consent in writing of the directors to any conditional alienation by mortgage subsequent to
the insurance, the consent in this case was unauthorized and void. I cannot subscribe to this
doctrine. The directors were bound to know the uniform course pursued by their sole agent in
the transaction of their business at their office, especially where regular entries of his acts
were made in their books; and they must be held responsible on the ground of a tacit assent
and approval unless they can show that by a strict vigilance and scrutiny into his acts they
were unable to ascertain the course he was pursuing, and could not therefore arrest it or put
the public on their guard.
In Jones v. Agricultural Co., 38 Ark. 17, it was held that the directors are conclusively
presumed to know the pecuniary condition of their company; and in Corbett v. Woodward, 5
Sawy. 403, 416, Deady, J., said: Be this as it may, the law will not permit a person to
become a director in a corporation, and neglect the duties and avoid the responsibilities
thereof as to third persons with impunity. A voluntary ignorance of what it is his duty to
know and understand is no excuse for him when the rights of others are in question. By
becoming a director, which includes the taking of an oath to faithfully and honestly
discharge' the duties of the office, he engages to take good care of the interests of the
stockholders and creditors intrusted to his charge, and this necessarily implies that he will use
due diligence to keep himself properly informed concerning the same.
There is a distinction, sometimes drawn in the cases, but more often ignored, between
ratification of an unauthorized act, and such acquiescence and laches in the matter as will
be held to estop the principal from denying the want of authority.
and such acquiescence and laches in the matter as will be held to estop the principal from
denying the want of authority. (2 Mor. Corp. Sec. 628.) It is unnecessary to more than refer to
it here, for the reason that rejecting the plaintiff's testimony wherever it conflicts with that of
the 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 validity. There can be no question that
the note of 1875 was a valid and binding obligation. If the corporation did not intend to ratify
the execution of the note of 1879, taken in its place, it should have promptly notified the
plaintiff and returned the old note, and then he could have still maintained an action upon the
latter. Not having done so, but on the other hand, having paid interest on the new note, and
recognized it in every way as the company's note, that also became a valid obligation that the
plaintiff could have maintained an action on. The same remarks hold true of the note of 1886.
Had its execution been promptly repudiated, the plaintiff could still have maintained an
action on the old obligation. Not having been, but on the contrary having allowed the plaintiff
to rest in the belief that the new note was regular and valid, until the old one was perhaps
barred by the statute of limitations, and at least never returning or tendering it to him, to allow
the corporation to now repudiate the note operates as a fraud upon the plaintiff and the
company should be held estopped to make such a defense. This principle is believed to be
applicable to all cases in which the parties acting in the belief that the agency is valid, have
suffered a change of circumstances, and cannot be restored to the position in which they
would have been if the agency had been repudiated immediately upon notice of the
unauthorized act. (Hallett, J., in Union Gold Min. Co. v. Rocky Mt. Nat. Bank, 2 Colo. 248,
262.) This case, which is very much in point and quite instructive, was three times before the
supreme court of Colorado, and was subsequently confirmed in the United States supreme
court (96 U.S. 640). It was there held that where the president of a mining company was
informed of an indebtedness incurred without authority by the general manager, and the
company did not within a reasonable time repudiate the act of the manager in borrowing the
money, such notice to the president was notice to the company, and the jury would be
authorized to conclude that the company had consented to what had been done in its
name. In a concurring opinion, Wells, J., said {2 Colo.
to the company, and the jury would be authorized to conclude that the company had
consented to what had been done in its name. In a concurring opinion, Wells, J., said (2 Colo.
265): I grant that if by such attention to its affairs as a man of ordinary prudence in the like
case would have exercised the corporation might have informed itself of Becker's doings, it is
the same as if they had actual knowledge. The corporation ought not to be heard to say that it
did not know that which by the ordinary diligence which the law exacts of them they might
have known. I deem it unnecessary to follow this further, except to add, to avoid
misunderstanding, that the plaintiff, having had no call or opportunity for pleading this
estoppel, may, contrary to the rule that should be applied to the defendant, rely upon it
without such pleading. (Clink v. Thurston, 47 Cal. 21; Bigelow, Estop. 584.)
The foregoing will sufficiently indicate the ground upon which I think the case should be
decided; but under the circumstances, I deem it proper to follow it up a little further. I must
confess that I have found it quite difficult to determine from the opinion of my learned
associates just what ground or grounds they have placed their judgment upon. With all
deference, it seems to me that, while no one of them is in the end relied upon, the doctrines of
payment, want of consideration, ratification, and other subjects, are quite confusedly mixed
together; perhaps upon the theory that, even though no one of them may be sufficient, all put
together must be. They seem, however, among other things to hold that what took place in
1881 between Wright and Helm constituted a payment of the company's indebtedness to
Wright, a transfer of their liability to Helm, and in some manner prevents the note of 1886
from being the company's note. In my judgment, under the pleadings and circumstances
existing here, it should make no difference in the result whether it did or did not constitute a
payment of the note of 1879. Wright claimed that it did not, and the note of 1886, upon which
the action is brought, was made in place of the old one. As so often stated, the question is, is
this the company's note? But it could be their note even though they owed Wright nothing,
the same as an individual might make a note even though he owed the payee nothing, and
received no consideration for making it. If the note of 1879 was paid, then that note might be
no sufficient consideration for the note of 1SS6; but that would be its only possible effect;
and as no want of consideration is pleaded, under all rules of pleading that should cut no
figure in the case.
consideration for the note of 1886; but that would be its only possible effect; and as no want
of consideration is pleaded, under all rules of pleading that should cut no figure in the case.
To illustrate: If the execution of the note had been formally authorized by the board of
trustees, then certainly there could be no question that it was the note of the corporation; but
if the indebtedness had been paid in 1881, the defense of want of consideration might still
exist. At any rate, this matter does not help us the least bit to determine whether the company
has through its representatives ratified the execution by its president and secretary of the note
in question, so as to make it the company's note, and consequently it is entirely immaterial.
But if mistaken in this, and it be material, then it seems clear that the transaction of 1881
did not constitute payment, nor in any manner release the company from its obligation to pay
Wright the money due either upon this note or the one of 1879. Neither by pleading nor proof
is it claimed that there was any fraud, deception, misrepresentation or concealment in that
matter, nor does it appear that any was intended or contemplated. We have, consequently,
only to analyze the transaction and to determine what was really done there and its legal
effect.
As the plaintiff denies the conversation with Helm in toto, the view most favorable to the
defendant is to adopt Helm's version of the matter. Mr. Helm testified as follows: I got home
Sunday, and on Monday following I met Mr. Wright and I told him I had the money to take
up that note. We went to Wells-Fargo, where he had a tin box. He went into the vault, got the
box and brought it on the counter, opened the box, took out the note, held it in his hand. I said
to him that I was in a tight place myself and I said to him, Sam, you don't need this money,
and I need it awful;' and I said, I will give you my third of the Water Company's stock as
security, and let me keep this money.' * * * I had three hundred and thirty-three shares, and I
said Give me this two thousand dollars and you can have the stock;' and he asked me about
the stock and how much there was of it, and finally he said, I don't believe I want your stock,
but let it run as it stands and you can pay it in a few months, and you can pay the interest and
let it be as it is and not make any change.' I objected to it, but he said, Let it be as it is.' * * *
I used the money represented by the check.
check. Then I ordered the interest paid at the office charged to me.
Question. Do you know who drew the money represented by the check you speak of * * *
whether you drew it or whether Mr. Wright drew the money?
Answer. I presume I did.
Q. Did Mr. Wright ever surrender to you the note of the Carson Water Company that he
held against the company as his security?
A. No, sir.
Q. Mr. Wright never did surrender that note?
A. No, sir.
* * * * * * * * *
Q. You will not state that you delivered him a dollar or paid him the check for the Carson
Water Company at that time?
A. I don't think I did.
There can be no dispute that in this transaction Helm did not pay Wright any money, or
transfer or deliver the check to him, or transfer or deliver anything to him. He received
nothing from Wright, gave him no note or security, nor did he by word or deed become bound
for the payment of any money to Wright. The whole transaction amounted to simply this:
Wright got nothing, either in the way of money, notes or security; but as a matter of
good-natured accommodation to Helm, and without any possible advantage to himself, did
not insist upon the payment of the note at that time and agreed to let the matter stand as it
was. On the other hand, he refused to surrender the company's note, and take Helm's note and
stock in place of it. Helm was the company's agent to pay this money. Can any one claim that
in his hands the check was not the company's property, and represented the company's
money? Wright could have no title to it until it should be paid to him, and could in no manner
have compelled Helm to pay it to him. If not paid, his only remedy would be against the
company upon the note. When it was not paid, can there be any doubt that it was still the
company's property, and that they could have compelled their agent to give it up to them? It
follows that when Helm used it, it was the company's check and money that he used. The
most that can be said is that Wright consented to Helm's keeping the company's money. Helm
was the president and business manager of the company. Wright evidently looked upon him
as being the same as the company.
him as being the same as the company. To Wright's comprehension, if Helm did not pay the
money to him there was nothing to prevent his keeping it, and it would be all right. At any
rate, it is not claimed that there was any fraud in the matter, or anything that estops Wright
from asserting his claim against the company; so, if it was not a payment, it is immaterial
what else it was. Admitting that it was wrong for him to consent to Helm's keeping the
company's money, and that he was to such an extent his brother's keeper that he should have
said: No, you must not do this, still the question is not whether it was right, but whether,
contrary to the understanding and intention of both, it constituted a payment of the note and
substituted Helm as the plaintiffs' debtor.
Helm's acts show that he had a perfectly clear understanding of the transaction. He
understood that the note was still an outstanding and binding obligation upon the company;
but because he had used the money that should have gone to pay it, he was in duty bound to
protect the company, both as to the principal and interest. Hence his statement to the secretary
to charge the interest to him, and that he would protect the note at all hazards. Wright also
understood that the note had not been paid, that the company still owed it to him, and he
never made any claim upon Helm on account of it. To avoid misunderstanding, it should be
stated that the evidence shows that his claim to offset his water bill against Helm's
indebtedness to him was on other money that Helm owed him, and not on this note.
There can be no payment where the debtor gives up nothing, the creditor receives nothing,
and neither party understands that any payment has been made. When Helm used this money
he became the company's debtor; and if it has never been paidas presumably it has nothe
still owes it to them, but he owes nothing by reason of it to Wright. If Wright had only the
same confidence in Helm that the company seem to have had, there was still no reason for
him to think that his use of the money was not known to all, and entirely satisfactory, for no
objection was made for some eight or nine years, and very possibly not until it was found that
Helm was unable to replace it. It would hardly seem possible that under the circumstances
existing here two thousand dollars could disappear from the exchequer of a company
handling no more money than this one presumably handled, and every one interested in
the company or paying any attention to its affairs not know all about it.
this one presumably handled, and every one interested in the company or paying any attention
to its affairs not know all about it. Had the arrangement between Helm and Wright been made
for the purpose of enabling Helm to defraud the company of the money, by inducing the
belief that the note had been paid with it when it had not, and particularly had Wright
represented to any of the company's officers that it had been paid, this would probably
constitute a defense to the company, as Wright would be estopped to deny that such was the
case; but it is not claimed by any one that anything of this kind exists here. No pretense was
made by anybody that the note had been paid, or that the money was not still in Helm's hands.
It is said that an officer cannot ratify his own unauthorized act, and consequently I suppose
that Helm and Richard, as trustees, could not ratify their act as president and secretary in
issuing the note. This might be admitted, for as shown, the whole company had such
knowledge, or such notice and means of knowledge as amount to knowledge, that by their
silence, acquiescence and laches they have given validity to the unauthorized act; but it is
unnecessary to do so. This rule simply goes to the extent that an officer who did not have
authority to do a thing in the first place cannot, in the same capacity, ratify it so as to make it
legal; but no case ever decided that an officer occupying two positions, one above the other,
could not in the higher capacity ratify an act that he did not have authority to do in the lower
capacity.
Again, it is said the Helm could not act in the execution or ratification of this note, because
he was really giving the company's note for his own indebtedness to Mr. Wright. There would
be something in this were it not based upon an assumption entirely unsupported by the
evidence. As I think has been successfully shown, it was the company and not Wright that
Helm owed, and the company still owed Wright. Giving the new note neither paid, released,
extended, nor in any manner affected Helm's debt to the corporation. Consequently it was
entirely immaterial to him in his individual capacity whether the new note was or was not
made. The only question in that transaction was whether they should pay the old note, or
extend it by making a new one, and this was a matter to be determined only by the financial
situation of the company and like considerations.
As to the case of Yellow Jacket Mining Co. 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 decided so to be in that case. It is dictum,
and the opinion shows that even 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 transactionand if not, the decision is
doubtless correct upon that point, because as the minority could not by formal resolution
either authorize the action 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
the 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; Scott v. First M. E. Church, 50 Mich. 532; Hoosac Milling
Co. v. Donat, 10 Colo. 529; Kent v. Mining Co., 78 N. Y. 187; Fidelity Ins., T. & S. D. Co. v.
Shenandoah Val. R. Co., 32 W. Va. 257; Sheldon Hat Blocking Co. v. Eickemeyer Hat
Blocking Co., 90 N. Y. 613; Smith v. Ayer, 101 U.S. 320; Phosphate of Lime Co. v. Green, L.
R. 7 C. P. 63.
There are many other statements made in the opinion of my respected associates in which I
do not agree, but the length which this opinion has already reached admonishes me that I
should draw it to a close.
For the foregoing reasons I am of the belief that the judgment as entered in the district
court was correct, and the order granting a new trial was wrong.
ment as entered in the district court was correct, and the order granting a new trial was wrong.
I therefore dissent from the judgment.
____________
21 Nev. 507, 507 (1893) Dutertre v. Shallenberger
[No. 1379.]
LOUIS DUTERTRE, Appellant, v. G. N. SHALLENBERGER,
Respondent.
PracticeWant of, or Defective Findings, When Considered on Appeal.A case will not be reversed for want
of a finding, or for a defective finding unless the finding is excepted to, or a finding is requested upon the
omitted point.
EquityDefense of Possession of Land.The fact that the equitable owner of land permitted a number of years
to elapse without taking action, which he might have taken, to obtain the legal title, does not prevent him,
when sued for the land, from setting up his equity in defense of his possession.
IdemNon-Operation of the Statute of Frauds.Where, as here, the facts would be sufficient to entitle the
equitable owner of land to the specific performance of a contract of purchase of the same, the case is taken
out of the statute of frauds and conveyances, and no deed or instrument of writing establishing the
agreement need be proven.
M. S. Bonnifield, Galpin & Zeigler, Torreyson & Summerfield, for Appellant.
I. To bind or to affect appellant's rights the findings should have shown that appellant had
knowledge of respondent's equities before appellant's purchase. (McNeil v. Tenth National
Bank, 46 N. Y. 329; Graff v. Middleton, 43 Cal. 341; 1 Storey's Eq. Jur. 413.)
II. Respondent allowed almost six years to elapse without taking any steps to have the
mistake in his deed rectified, and sets up his laches as a defense against appellant's
acknowledged legal title. Where one of two persons must suffer from any act of negligence,
he is to suffer whose act occasioned the mischance.
chance. (Ruiz v. Norton, 4 Cal. 358; Exchange Bank v. Monteath, 26 N. Y. 513; Schultz v.
McLean, 93 Cal. 356; Griswold v. Haven, 25 N. Y. 602; Graff v. Middleton, 43 Cal. 343;
Poorman v. Mills, 39 Cal. 353; Lickborrow v. Mason, 2 Tenn. R. 70.)
R. M. Clarke, for Respondent.
I. The actual, exclusive and adverse possession of respondent of the premises in question
at the time appellant took his deed, appellant well knowing of such possession, was in the law
constructive notice to appellant of respondent's rights and equities. (2 Lead. Cases in Eq. 135,
182, 185; 5 Johnson's Chan. 39; 10 Gill & Johnson, 316; Lestrade v. Barth, 19 Cal. 660;
Talbert v. Singleton, 42 Cal. 391; Pell v. McElroy, 36 Cal. 271.)
II. It is the established doctrine of the law that the recording acts only apply in favor of
parties who have acted in good faith, and cannot be made the means of fraud or oppression.
(2 Lead. Cases in Eq. 185; Simpson v. Harris, 21 Nev. 353.)
Action of ejectment. Trial by the court and judgment for the defendant. The plaintiff is the
owner of the legal title to the demanded premises, but the defendant sets up an equitable
defense to the action founded upon a purchase by him from the plaintiff's grantor, the
payment of the purchase money, and possession and improvement for a number of years; of
all of which, it is alleged, the plaintiff had full knowledge at the time of his purchase.
It would appear that the answer sufficiently states an equitable defense, and we do not
understand this to be seriously controverted by the plaintiff. Certainly if, as alleged in the
answer, the plaintiff knew of the defendant's purchase, of the payment of the purchase money,
and of his possession and improvement of the premises, it can hardly be said that the plaintiff
was an innocent purchaser. The principal point made upon the appeal seems to be that the
findings do not support the judgment in this, that it was not found that the plaintiff knew of
the defendant's claim to the land, or that the defendant's possession was sufficient to put the
plaintiff upon notice of his equities. But, as we have seen, it was alleged in the answer that
he did know all about the matter.
answer that he did know all about the matter. No motion for new trial was made, and there
was no exception upon the ground that the findings were defective, or for want of a finding
upon this point. The plaintiff does not claim that there is anything in the findings showing
affirmatively that he did not have this knowledge, or that the defendant's possession was not
sufficient to put him upon notice, but only, if we understand his position correctly, that those
facts are not expressly found.
It hardly ought to be necessary at this day, to say that where there is nothing in the finding
showing affirmatively that the judgment is wrong, the mere want of a finding, or a defective
finding of a fact properly pleaded, can never under our system result in a reversal, unless the
defective finding is excepted to or a finding is requested upon the omitted point. Under the
present California system, the express findings must support the judgment, and if they do not
the case will be reversed; but with us there is an implied finding in favor of the judgment, of
all facts properly pleaded.
If then, we should admit that the findings as found in the transcript are upon this point
insufficient to support the judgment, in the absence of all exception to them, we must imply a
finding that the plaintiff did have sufficient knowledge of the situation to put him upon notice
of the defendant's equities. This would be the case were there no findings at all upon the
point; and certainly a defective finding can be no worse than none at all. If it is claimed that
the evidence is insufficient to justify such a finding, this would be a point that should be
made by a motion for new trial, and upon a statement of the evidence. (Welland v. Williams,
21 Nev. 230, and cases cited therein; Simpson v. Harris, 21 Nev. 353.)
The fact that the defendant allowed a number of years to elapse without taking action to
obtain the legal title does not prevent him, when sued, from setting up his equity in defense of
his possession (De Guire v. St. Joseph Lead Co., 38 Fed. Rep. 65), nor would the statute of
limitations run against his doing so. (Love v. Watkins, 40 Cal. 547.)
Where, as here, the facts shown would be sufficient to entitle the defendant to a specific
performance of the contract of sale, the case is taken out of the statute of frauds or
conveyances, and no deed or instrument of writing establishing the agreement need be
proven.
ment need be proven. (Sedg. & W. Tr. Tit. Land, Secs. 321a, 797; Newell, Eject. 679; Bowler
v. Curler, 21 Nev. 158.) We have purposely omitted all consideration of the fact that the
defendant's grantor also made him a deed, because it does not appear from the answer
whether the deed failed to describe the premises, or was not recorded, or why it was invalid.
In this respect the pleading is defective, but the facts which are properly pleaded are sufficient
to support the judgment.
____________
21 Nev. 510, 510 (1893) State v. Jones
[No. 1389.]
THE STATE OF NEVADA ex rel. C. C. POWNING, Relator, v. J. E. JONES, STATE
LAND REGISTER, and J. F. EGAN, STATE TREASURER, Respondents.
ContractEntire or Separable, How Ascertained.Whether a contract is entire or separable into several
independent contracts, depends upon the intention of the parties, to be ascertained from the language
employed and the subject matter of the contract.
IdemState Land Contracts EntireForfeiture.Contract made by the state for the sale of state lands
considered and held to constitute an entire contract for all the land described therein, and that if the
purchaser fails to pay interest upon the balance due upon any part of the land, he forfeits it all.
IdemLegislative Intention.The statutes of Nevada permitting such a sale reviewed, and held to authorize the
kind of contract made in this case, and to show that the legislature intended it to be entire and indivisible.
Original application for writ of mandate.
The facts fully appear in the following statement by the justice delivering the opinion:
Original application to compel the respondents as respectively land register and treasurer
of the state of Nevada, to receive from the relator the interest due upon a certain forty acres of
land which the state had, along with other lands, contracted to sell to him. The respondents
refused to receive the money upon the ground that the contract was entire, and that the relator
must pay interest upon all the land included therein, or forfeit all of it.
21 Nev. 510, 511 (1893) State v. Jones
The contract was as follows: This article of agreement made and entered into this 20th
day of July, 1891, by and between the state of Nevada, acting through J. E. Jones, surveyor
general and ex-officio register of the state land office of said state, party of the first part, and
Christopher C. Powning of the county of Washoe in the state of Nevada, party of the second
part, witnesseth: That the party of the first part, for and in consideration of one dollar and
twenty-five cents per acre, good and lawful money of the United States, payable as hereinafter
expressed by the party of the second part, doth agree to convey to the party of the second part,
by good and sufficient patent the following described lands, to wit: Southwest one-fourth of
south-east one-fourth, and east one-half of south-west one-fourth of section 28, and northeast
one-fourth of northwest one-fourth of section 33, of township 40 north, range 45 east, Mt.
Diablo base and meridian, containing one hundred and sixty acres * * * in consideration of
which the party of the second part for himself, his heirs, administrators, executors or assigns,
doth agree to pay the state of Nevada at the rate of one dollar and twenty-five cents per acre,
as above stated, of which sum the party of the first part has heretofore paid the sum of
twenty-five cents per acre; and it is hereby further agreed that the party of the second part
shall within twenty-five years from the date of this article of agreement, pay the balance of
said one dollar and twenty-five cents per acre, viz, one dollar per acre, i. e. the sum of one
hundred and sixty dollars, with interest thereon at the rate of six per cent. per annum, interest
payable annually, as provided in section 8 of an act entitled an act to provide for the
selection and sale of lands that have been or may hereafter be granted by the United States to
the state of Nevada,' approved March 12, 1885, as amended March 11, 1889. And it is hereby
further provided and agreed that the party of the second part, his heirs, executors,
administrators or assigns, may at any time prior to the maturity of this contract make full
payment for the lands described in this article, and receive from the state of Nevada a patent
for the same, issued in the name of the applicant. This contract is made upon the express
conditions, viz: That if the said Christopher C. Powning, party of the second part, shall fail to
pay the principal sum herein specified, or the interest thereon, according to the terms of this
agreement as herein stipulated, the lands herein described, and the money paid thereon, shall
immediately and unconditionally revert to the state of Nevada, and the lands be
thereafter subject to sale in the same manner and under the same conditions as though
this contract of sale had not been made."
21 Nev. 510, 512 (1893) State v. Jones
paid thereon, shall immediately and unconditionally revert to the state of Nevada, and the
lands be thereafter subject to sale in the same manner and under the same conditions as
though this contract of sale had not been made.
The facts are agreed upon, but the defendants demur to their legal sufficiency.
Baker, Wines & Dorsey, for Relator.
I. The contract is severable for the smallest legal subdivision of land which could be sold.
(Statutes reviewed.)
II. The contract in its very nature is divisible in character. (1 Atl. Rep. 320; 66 Pa. St. 351;
82 Pa. St. 267; 89 Pa. St. 231; 25 Atl. Rep. 120.)
Case argued orally.
J. D. Torreyson, Attorney General, for Respondents.
I. The contract is entire and undivisible. (Alcott v. Hughes, 105 Pa. St. 350.) Though made
up of severable subdivisions of land it was intended to accomplish but one object, to-wit, the
purchase of one hundred and sixty acres of land. There is but one price, one dollar and
twenty-five cents per acre, one time, twenty-five years, and one rate of interest, six per cent.
(Quigley v. De Hass, 82 Pa. St. 273; Shinn v. Bodine, 60 Pa. St. 182; Lucesso Oil Co. v.
Brewer, 66 Pa. St. 354.) The question whether a contract is entire or severable can only be
determined by considering the language and the subject-matter of the contract.
II. No contract can be rescinded unless both parties are restored to the condition in which
they were before the contract was made. One party cannot insist on the validity of one portion
of a contract and avoid the remainder. (Moore v. Brackett, 98 Mass. 207; Storey on Contracts,
Vol. 1, Secs. 25, 26, 34.)
Case argued orally.
This case has been argued and submitted to us upon the assumption that the relator had the
right, whenever he saw fit, to refuse to pay the interest due upon the contract involved in this
action, and thereby to throw up or surrender the entire contract; and further that he would
also have that right as to a part of the land included therein, provided the contract is a
separable or divisible one.
21 Nev. 510, 513 (1893) State v. Jones
contract; and further that he would also have that right as to a part of the land included
therein, provided the contract is a separable or divisible one. As the latter point seems
sufficient for the determination of the action, we shall make the same assumptions, and
consider only that proposition.
The relator claims that the contract was a separable and divisible agreement for the sale to
him of four different subdivisions of land at so much per acre; that in the first place the state
would have sold to him any of the tracts without the others; that it is a matter of indifference
to the state whether the relator takes the whole of the land included in the contract or only a
part of it; and that consequently, under the contract and the statute authorizing it, he had the
option of paying upon one or more of the forty acre tracts, and of forfeiting the others.
The rule for determining when a contract is separable or entire is stated in 2 Parson
Contracts 517, as follows: The question whether a contract is entire or separable is often of
great importance. Any contract may consist of many parts, and these may be considered as
parts of one whole, or as so many distinct contracts, entered into at one time and expressed in
the same instrument, but not thereby made one contract. No precise rule can be given by
which this question in a given case may be settled. Like most other questions of construction,
it depends upon the intention of the parties, and this must be discovered in each case by
considering the language employed and the subject matter of the contract. If the part to be
performed by one party consists of several distinct and separate items, and the price to be paid
by the other is apportioned to each item to be performed or is left to be implied by law, such
contract will generally be held to be severable. All construction is an effort to determine the
meaning which the parties intended to give to an instrumentto ascertain their intentions.
The latter part of this extract from Parsons, containing the rule which seems to be principally
relied upon by the relator's attorney, is merely the statement of a subordinate rule for
ascertaining that intention when there is nothing further in the contract indicating it than the
fact that it consists of several distinct items, of which the price of each is fixed or can be
ascertained from the agreement, for the author immediately adds: But the mere fact that the
subject of the contract is sold by weight or measure, and the value is ascertained by the price
affixed to each pound or yard or bushel of the quantity contracted for, will not be
sufficient to render the contract severable."
21 Nev. 510, 514 (1893) State v. Jones
value is ascertained by the price affixed to each pound or yard or bushel of the quantity
contracted for, will not be sufficient to render the contract severable. Thus, in Quigley v. De
Haas, 82 Pa. St. 267, 273, it is said: Whether a contract be entire or severable depends more
on the intention of the parties as gathered from the whole instrument than upon the specific
method of performance or payment. * * * The rule as adopted in the case of Lucesco Oil Co.
v. Brewer, 66 Pa. St. 351, from Parsons on Contracts, that if the part to be performed by one
party consists of several and distinct items, and the price to be paid by the other is
apportioned to each item to be performed, or is left to be implied by law, such contract will
generally be held to be severable, is certainly applicable to contracts such as that which was
under consideration in that case. But it is not even intimated that the circumstances therein
stated would override the clear intention of the parties if such intention was apparent from the
whole face of the agreement. Indeed, it is expressly said by the author by whom the above
rule is stated that no precise rule can be given by which this question in a given case may be
settled, but, like most other questions of construction, it must depend upon the intention of
the parties as gathered from the whole subject-matter of the contract. As thus understood,
Parsons' rule has been approved in many cases. (Gray v. Hinton, 2 McCrary, 167; Shinn v.
Bodine, 60 Pa. St. 182; Mining Co. v. Jones, 108 Pa. St. 55, 66; More v. Bonnet, 40 Cal. 251;
Clark v. Baker, 5 Metc. (Mass.) 452; Morse v. Brackett, 98 Mass. 205; Mansfield v. Trigg,
113 Mass. 350.)
Viewing this contract as a whole, and taking into consideration all of the language used in
it, it seems clear that the intention was to make it entire as to all of the land embraced therein,
and not divisible into four different contracts for as many different tracts.
In the first place the argument to the contrary proves too much. There is not one word in
the agreement indicating any intention that it should be divisible upon the lines of the
forty-acre tracts. Upon the agreement itself, the argument must be based upon the language
providing for the sale of a number of different acres at a uniform price per acre. But if this
proves anything, it proves, not that the contract embraced four different contracts for as many
forties, but one hundred and sixty, or one to each acre.
21 Nev. 510, 515 (1893) State v. Jones
or one to each acre. This, however, would be entirely inadmissible, because by Gen. Stat. Sec.
337, it is provided that no lands shall be sold in tracts less than the smallest legal subdivision,
which of course means in less than forty-acre tracts, except where by reason of township or
meander lines the subdivision may embrace a less quantity.
Next, it is provided in the contract that the purchaser is to pay not alone one dollar
additional for each acre of the land, but a gross sum of one hundred and sixty dollars, together
with interest on that gross sum at the rate of six per cent. per annum. The one hundred and
sixty dollars is the principal sum to be paid, and it is further provided that if the purchaser
shall fail to pay the principal sum herein specified, or the interest thereon, then the lands
herein described and the money paid thereon shall be forfeited to the state. Could it be any
more plainly stated that, if the purchaser fails to pay the interest on the whole one hundred
and sixty dollars, he thereby forfeits all interest in the whole lands, and not alone in such
proportional part as he fails to pay upon? If this is not an entire contract as to all the land
embraced by it, it is difficult to say what language should have been used to make it such. To
hold otherwise would be, to our minds, not to construe a contract already made by the parties,
but to make one for them.
Nor do we find anything in the statute indicating an intention to place a different
construction upon these contracts for the sale of state lands from that which their language
indicates. On the contrary, everything therein contained confirms the views we have
expressed. True it is that the relator could have purchased one or more of these forty-acre
tracts without the others, and could by applying for them separately have obtained a separate
contract for each one. But he did not do so, and the question now is not what might have been
done, but what was actually done. An owner might have a large tract of land for sale of which
he is willing to sell any particular subdivision separately, but this would not indicate very
strongly, after a contract had been made for the sale of several subdivisions, that it was the
intention to still leave the purchaser the option of taking the whole or any part of them. What
has actually been done here is that a contract has been entered into providing for the sale of
several tracts of land for a gross sum, and conditioned that if the purchaser shall fail to pay
the interest due annually upon that gross sum, he shall forfeit all of the land; and this
seems to be in accordance with the provisions of the statute concerning these contracts.
21 Nev. 510, 516 (1893) State v. Jones
a gross sum, and conditioned that if the purchaser shall fail to pay the interest due annually
upon that gross sum, he shall forfeit all of the land; and this seems to be in accordance with
the provisions of the statute concerning these contracts.
Apparently the legislature did not anticipate that an applicant would be shrewd enough to
make separate application for each subdivision, so as to enable him to forfeit one or more of
them without affecting the others, and as a matter of fact we believe it has not often been
done. The lawmakers evidently supposed that an applicant would apply for all the land he
wished to purchase in one application. The law was accordingly framed upon that theory, and
indicates an intention that each application and each contract shall be treated as a unit, and to
stand or fall all together.
The land laws have been amended several times, but the amendments do not seem to have
affected this question, and for convenience we shall refer to the original sections. A purchase
of land is always to be initiated by an application under section four of the act (Gen. Stat. Sec.
327), which application shall designate, in conformity with the United States survey, the
tracts of land applied for. After the register has ascertained that the land is for sale, and that
the applicant is entitled to purchase the same, section ten of the act (Gen. Stat. Sec. 333),
provides that he shall cause a notice to be prepared and served, requiring the applicant * * *
to make full payment, or enter into contract * * * for the purchase of the land applied for by
said applicant, and shall inclose with such notice duly prepared contracts, in duplicate, for the
applicant to sign. If, at the expiration of ninety days, the applicant shall fail to make the
required full payment or to sign and return to the register such contracts, he or she shall
forfeit his or her right to complete the purchase of such land, and the title to such land shall
rest as fully in the state as though it had never been applied for, and which thereafter shall be
subject to sale by the state.
It will be noticed that all through the statute the lands applied for are spoken of as a whole,
and so far as the language indicates the intention, are to be all paid for or all contracted for, or
all forfeited. The contracts to be sent out are to cover the lands applied for, and are to be
executed just as sent, or the land is to be forfeited. There is nothing that, to our minds,
indicates any intention to allow a division or selection of them to be made.
21 Nev. 510, 517 (1893) State v. Jones
minds, indicates any intention to allow a division or selection of them to be made. The same
must be said of section 8 (Gen. Stat. Sec. 331), providing for the form and conditions of the
contract. Here, as before, the lands applied for are spoken of as a unitas such lands. It is
upon the remainder of the purchase price of such lands that the applicant is to pay interest
annually; it is for the lands described in the contract that he may make full payment and
receive a patent; and upon failure to pay the interest due upon such lands they shall
immediately and unconditionally revert to the state. The language covers all that were applied
for in the first instance, and nowhere is anything less than the whole spoken of.
There was a purpose, too, in attaching such a condition to the sale of the lands. The policy
adopted by the legislature has been to sell as much of this state land and obtain as much
money for it as possible. In pursuance of this policy it is an advantage to the state to compel
the purchaser to either pay for all of the land or forfeit it all. He is more likely to continue to
pay upon all, or if he does not, the state will be gainer the additional money forfeited, and
good land will be surrendered as well as poor. To be sure, the applicant might, perhaps,
immediately apply again for the tracts that he wishes to keep, but even then the state will be
gainer the money forfeited upon the first payment.
Right or wrong, this has been the policy under which our land laws have been framed, and
we are of the opinion that the construction we have placed upon the contract and the law is
simply in accordance with that policy, and in accordance with the clear intention of the
legislature.
The demurrer is sustained and the application for the writ dismissed.
____________
21 Nev. 517, 517 (1893) State v. Torreyson
[No. 1388.]
THE STATE OF NEVADA, ex rel. CHARLES E. MACK, Relator, v. JAMES D.
TORREYSON, ATTORNEY GENERAL, Respondent.
Constitutional LawRegents of the State University.Prior to 1891 the board of regents of the state university
consisted of three members, elected by the people, as provided for by the act of February 7, 1887. The
constitution requires that the governor, secretary of state, and superintendent of public instruction shall for
the first four years, and until their successors are elected and qualified, constitute a
board of regents to control and manage the affairs of the university and the funds of
the same, under such regulations as may be provided by law.
first four years, and until their successors are elected and qualified, constitute a board of regents to control
and manage the affairs of the university and the funds of the same, under such regulations as may be
provided by law. But the legislature shall, at its regular session next preceding the expiration of the term of
office of said board of regents, provide for the election of a new board of regents and define their duties.
The act of March 19, 1891, provided that the board of regents of the state university shall consist of three
elective members, as now provided by law, and of the governor and attorney general, who shall be
ex-officio members of said board. Respondent, as attorney general, claimed by virtue of said act to be a
regent of the state university. Held, that respondent is not entitled to discharge the duties of regent because
he has not been elected to that position in the manner provided by the constitution and the act of 1887.
W. E. F. Deal, for Appellant.
I. The act of March 19, 1891, under and by virtue of which respondent claims to be a
regent of the State University, is unconstitutional. It is in direct contravention of section 7 of
article XI of the constitution.
II. The office of regent of the State University is a constitutional office and cannot be
legally filled in any other mode than that prescribed by the constitution itself. The word
elected as used in section 7 of article XI of the constitution can only be construed to mean
elected by the people by ballot. (Clarke v. Irwin, 5 Nev. 121; State v. Arrington, 18 Nev. 419;
McGruder v. Swann, 25 Md. 214.)
III. The constitution intended that one man should be attorney general and that another
man should be regent. It would be just as legal to make a regent, either by act of the
legislature, or appointment, or election, ex-officio, governor, or attorney general, as it would
be to reverse the process.
in reply.
I. The action was brought under the quo warranto act and not under the civil procedure
act. There is no essential difference in the nature of the proceeding provided by each of these
acts.
acts. Counsel can cite no case to sustain their position that the one act applies only to usurpers
and the other to de facto officers. Relator has a sufficient interest in the subject matter of the
proceeding to entitle him to maintain this action without the permission of the attorney
general. It must be conclusively presumed that the attorney general would refuse to sanction
an action against himself. The suit was properly brought, in whatever aspect it may be
considered.
II. The argument of counsel for respondent, that when the people elect a governor and an
attorney general they thereby elect regents and the constitutional right of the people to elect
the regents is not denied, is fallacious. The vice of the argument consists in the fact that the
legislature has deprived the people of saying who shall be regent unless they also say that he
shall be governor or attorney general.
Sardis Summerfield and Trenmor Coffin, for Respondent.
I. The action was improperly brought under the civil procedure act. It should have been
brought under the quo warranto act. Chapter 5 of title 8 of the civil procedure act was
intended for actions against usurpers, while the quo warranto act was intended for de facto
officers. It clearly appears upon the face of the complaint that respondent is at least a de facto
officer.
II. The offices of attorney general and regent of the State University may both be held by
the same person at the same time without violating any constitutional provisions. (Crosman
v. Nightingill, 1 Nev. 326; State v. Laughton, 19 Nev. 206; State v. Weston, 4 Neb. 243.)
III. Respondent does not deny that the office of regent under the constitution is an office
that must ordinarily and ultimately be filled by election by the people. He contends, however,
that the act in question created two new offices of regent, which as soon as created were
vacant and proper to be filled provisionally by legislative appointment in order to set the new
system of university government into operation, and that the constitutional provision relied
upon by appellant does not apply in such cases. (State v. Snodgrass, 4 Nev. 524; Clarke v.
Irwin, 5 Nev. 111; State v. Arrington, 18 Nev. 420; Walsh v. Commonwealth, 89 Pa. St. 419.)
IV. If the act in question is constitutional, the people, at the general election in 1S94, will
elect four regents, of whom the governor and the attorney general will be two.
general election in 1894, will elect four regents, of whom the governor and the attorney
general will be two. How then does the act assailed deprive the people of the right to elect the
regents?
V. The courts will not inquire into the necesity [necessity] of the act to increase the
number of the regents, as that is purely a legislative question. (In re Board of Commissioners
of Johnson Co., Wyoming, Ad. Sheets, Pac. Rep. No. 12, 1893, p. 350.)
This was a proceeding begun in the district court, in the nature of a quo warranto, to try the
validity of respondent's claim or right to act as a member of the board of regents of the state
university.
It is set forth in the petition that the respondent is now and ever since the month of
January, 1891, has been the duly elected, qualified and acting attorney general of the state of
Nevada. That since the 19th day of March, 1891, said respondent as such attorney general,
and by virtue of such office claims to be a regent of the state university, under and by virtue
of an act of the legislature; that he has never been nominated, elected or appointed, to fill said
office of regent. That Charles E. Mack, the petitioner, H. L. Fish and J. W. Haines, are the
duly elected, qualified and acting regents of the state university.
To this petition respondent demurred, upon the ground that the complaint or information
did not state facts sufficient to constitute a cause of action against the defendant, and that it
appears from the complaint that the defendant is a duly qualified and legally acting regent of
the state university. The demurrer was sustained and the relator failing to amend his pleading
the action was dismissed, and from the order sustaining the demurrer and dismissing the
action the relator appeals. As the matter was submitted to us on the question of the validity of
the law of 1891, under which said respondent is acting, we shall pass upon that question
alone. Objection was made in the course of the argument as to the propriety of allowing the
relator to prosecute this action in his own name, but we think he can maintain the action in
this form under section 3724, Gen. Stat., he being individually responsible for all costs.
responsible for all costs. The contention of the relator is, that the act of the legislature of
March 19, 1891, under which the respondent claims the right to act as one of the regents, is
unconstitutional, because it is in conflict with section 7 of article XI of the constitution. The
act under consideration reads as follows: The board of regents of the state university shall
consist of three elective members, as now provided by law, and of the governor and attorney
general, who shall be ex-officio members of said board.
Immediately after the approval of the above act by the governor, the respondent, who then
was and still is, the duly elected, qualified and acting attorney general of the state of Nevada,
qualified as such member of the board of regents, since which time he has been meeting with
and acting as a member of the board.
The section of the constitution referred to reads as follows: Sec. 7. The governor,
secretary of state and superintendent of public instruction shall, for the first four years, and
until their successors are elected and qualified, constitute a board of regents, to control and
manage the affairs of the university and the funds of the same, under such regulations as may
be provided by law. But the legislature shall, at its regular session next preceding the
expiration of the term of office of said board of regents, provide for the election of a new
board of regents and define their duties.
On the 5th of March, 1869, a law was approved by the governor providing for the election
of regents, by the legislature in joint convention on the third Tuesday of the session; and they
were so elected until 1887.
On the 7th day of February, 1887, an act of the legislature was approved by the governor,
wherein it was provided that the governor, secretary of state and superintendent of public
instruction should constitute the board of regents until the 1st of January, 1889, and until their
successors were elected and qualified. The act then provided for the election of three
qualified electors, at the next general election, to be voted for the same as other state officers,
and when elected should constitute the board of regents, and fixed their term of office; under
this act J. W. Haines is the hold-over regent, and at the general election held in November,
1892, Charles E. Mack, the relator, and H. L. Fish were elected as regents and qualified, and
entered upon the discharge of their duties as required by law.
It is the duty of courts, whenever called upon to pass on the unconstitutionality of an act of
the legislature to approach the question with great caution, and before the act should be
declared void it should appear that there has been a clear and palpable violation of the
constitution; for the presumption is that every statute, the object and provisions of which are
among the acknowledged powers of legislation, is valid and constitutional, and such
presumption is not to be overcome unless the contrary is clearly made to appear. Shaw, C. J.,
in the case of Wellington v. Petitioners, 16 Pick. 95, in considering the question whether or
not a certain act of the legislature was valid, said: The delicacy and importance of the subject
may render it not improper to repeat what has been so often suggested by courts of justice,
that when called upon to pronounce the invalidity of an act of the legislature passed with all
the forms and solemnities requisite to give it the force of law, courts will approach the
question with great caution, examine it in every possible aspect, and ponder upon it as long as
deliberation and patient attention can throw any new light upon the subject, and never declare
a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond
reasonable doubt.
Applying these principles laid down with so much care and adhered to by the courts of last
resort of other states, and not forgetting that the presumption is always in favor of the validity
of the law; and it is only when manifest assumption of authority appear that the judicial
power can or will refuse to execute it, for legislative acts are to be upheld unless there is a
substantial departure from the organic law, yet in connection with the above principles there
is another principle or rule that courts strictly adhere to, and that is to follow precedents and
not to disturb that which has been accepted as a correct interpretation of a constitutional
provision for a great number of years, without it is made to appear that the decision on the
question then under consideration was erroneous and should not be followed. The rule of
stare decisis means that when a construction has been once placed upon a constitutional
provision by a judicial decision, it forms a precedent for the guidance of courts in all similar
cases. This rule should be strictly followed, for by a strict adherence to it, it preserves the
certainty, the stability and symmetry of our jurisprudence. The supreme court of the United
States, as a general rule, follows the decisions of the highest courts of the several states
upon the construction of their constitutions and laws, unless they conflict with or impair
the efficacy of some provisions of the federal constitution or of a federal statute.
United States, as a general rule, follows the decisions of the highest courts of the several
states upon the construction of their constitutions and laws, unless they conflict with or
impair the efficacy of some provisions of the federal constitution or of a federal statute.
(Louisville & Railroad Co. v. Mississippi, 133 U.S. 591; 27 American Decisions, 631.)
When a word or paragraph used in a constitution has been interpreted, and its meaning
determined by deliberate judicial decision, and has been in operation for twenty-three years,
as is the fact in relation to the word elected, used in our constitution, and the meaning of
the word has been followed and acquiesced in by the courts and people of the state, we should
not disturb such decision.
In the case of Clarke v. Irwin, 5 Nev. 121, Whitman, J., speaking for the court said:
When words are used in a constitution, unless so qualified by accompanying language as to
alter their ordinary and usual meaning, they must be received in such meaning. The word
elected,' in its ordinary signification, carries with it the idea of a vote, generally popular,
sometimes more restricted, and cannot be held the synonym of any other mode of filling a
position.
That case was decided in 1869, and although the court held that the constitution provided
that the county officers should be elected by the people, yet the legislature having created the
county of White Pine an emergency existed, and that that body had the power to name the
county officers for the purpose of putting the new system in motion and providing for the
election of their successors at the next general election.
Without such power was vested in the legislature no new county could be organized, for
officers must be appointed to make the necessary arrangements for holding the election
within the boundaries of the newly created county. In the case of the State v. Arrington, 18
Nev. 412, the question before the court was as to the power of the legislature to extend the
terms of offices of the then incumbents of the county assessor's office from two to four years;
in passing upon the question the court adhered to the meaning of the word elected as
defined by the court in Clarke v. Irwin, but the court held that there was no emergency or
special occasion calling for extraordinary action on the part of the legislature; and that
portion of the act extending the terms of the incumbents to four years was held to be
unconstitutional.
act extending the terms of the incumbents to four years was held to be unconstitutional.
The respondent admits that under the constitution the office of regent must be filled by an
election by the people, but contends that the act in question created two new offices of regent,
which as soon as created were vacant and proper to be filled provisionally by the legislative
appointment, in order to set the new system of the state university government and discipline
in operation.
By his admission that the constitution requires that the regents shall be elected by the
people, it seems to us that the respondent virtually admits that he is not entitled to discharge
the duties of regent; because by such admission he takes himself without the rule as laid down
in the case of Clarke v. Irwin, and falls within the rule as announced in State v. Arrington; in
this by increasing the number of regents from three to five the legislature was not
inaugurating a new system of government for the university, but merely increasing the
number of regents who were to administer the affairs of an institution which had theretofore
been controlled by three; and there is nothing contained in the act of 1891 that would indicate
or lead us to the conclusion that there was any emergency existing at the date of the passage
of the act, whereby it became necessary that the increased number should be inducted into
office prior to their election by the people.
The same rule does not apply in the case under consideration that should be invoked in
cases where the legislature had created new counties, new judicial districts or new state
institutions. The act of 1891 did not create a new system, it merely created two new officers
to assist three others who had been elected [by] the people to conduct the affairs of an
institution which had been established and the system inaugurated years prior to 1891.
When new counties or judicial districts are created, or new state institution established, it
becomes necessary that officers should be appointed to organize and put in motion the county
government, the judge to preside in the district, and the officers to control the affairs of the
institution under such laws as may be enacted for the government of the same; under these
conditions an emergency exists and the legislature possesses the power to make provisional
appointments to put the new system in motion.
We conclude therefore that the respondent is not entitled to discharge the duties of regent
of the state university, by reason of the fact that he has not been elected to that position in the
manner provided for by the constitution, or under the act of 1887, and the judgment of ouster
must be entered.
As to whether the persons who shall be elected governor and attorney general, at the
general election to be held in the month of November, 1894, will be entitled to act as regents
of the state university, it is unnecessary for us to decide. All that we are called upon to decide
is whether the respondent is legally entitled to discharge the duties of regent at this time, and
we say he is not.
It follows that the court erred in sustaining the demurrer to the petition, for which the
judgment of the district court is reversed, with instruction to said court to overrule the
demurrer, and for such further proceedings not inconsistent with this opinion.
As we have concluded that the legislative appointment under which the respondent now
exercises the office of regent is null and void by reason of conflict with the constitution, it is
unnecessary to pass upon any other question.
He admits, what is clearly the case, that eventually all the regents must be elected by the
people, but he claims that the act of 1891 (Stat. 1891, p. 77) appointing him, merely increases
the number of regents from three to five, which the legislature had the right to do; that at the
election in 1894, when the people elect a new attorney general, they will also elect, ex-officio,
a regent, which will comply with the requirements of the constitution, and that the present
appointment for the balance of his term of office, which it will be noticed extended over the
election of 1892, is simply a temporary one for the purpose of putting the new system into
operation, which, under the case of State ex rel. Clarke v. Irwin, 5 Nev. 111, the legislature
had power to make.
Where, as in that case, a new county is organized, or as in State ex rel. Rosenstock v. Swift,
11 Nev. 128, a municipal corporation is created, it is necessary that in some manner a set of
officers should be provided prior to the holding of an election, for there can be no election
without officers to hold it.
Although without incumbents, the offices have been created, and this presents the ordinary
situation of a vacant office. Notwithstanding the language of the constitution that an officer
shall be elected by the people, which must be generally followed, it could hardly have been
the intention that this should apply under any and all circumstances, for it takes time to call an
election; and it would often block the wheels of government for an office to remain vacant
until an election can be held and the result ascertained, even if one could be held at all
without the office being first filled. (State ex rel. Bull v. Snodgrass, 4 Nev. 524; Peo. v.
Fisher, 24 Wend. 219; Peo. v. Snedeker, 14 N. Y. 52.) This court concluded that the cases of
State v. Irwin, supra, and State v. Swift, supra, presented some of the excepted instances, and
the appointments there questioned were accordingly upheld. But as these exceptions are
contrary to the language of the constitution, and only to be justified by the exigencies of the
situation, this principle should not be extended farther than to the cases that reason forces us
to conclude the constitution makers did not intend to be brought within the general rule, that
the incumbent of the office must be elected. The exception should not be extended to the
creation and filling of unnecessary vacancies, nor should the appointments so authorized be
allowed to extend beyond the time when, in the regular course of elections, they can be filled
by the people.
In the case of State, ex rel. Perry v. Arrington, 18 Nev. 412, the legislature of 1883 had
provided that the terms of the assessors, which were then but two years, should be extended
to four years; that the first election for assessor under this law should take place in 1886, and
that the terms of the assessors then in office should be extended over the next election and up
to January, 1887. It was sought to justify this legislative appointment upon the same ground
urged here, that the legislature had the power to make it for the purpose of putting the new
system into operation. The court however said, speaking of the cases already cited here: We
do not deny that the legislature may make provisional appointments if necessary, in order to
put a new system into operation. Offices that must be permanently filled by an election, in
cases of emergency, may be provided for temporarily by other means. The constitutional
mandate does not apply to such exceptional cases. Clark v. Irwin shows that certain parties
were named as county officers in the bill creating the county of White Pine, to hold until
the next general election.
in the bill creating the county of White Pine, to hold until the next general election. Irwin was
designated as sheriff. The court held that the statute did not violate that part of the
constitution which requires county officers to be elected by the people, because the office was
filled only temporarily by the legislature until the next general election, and that the
constitutional mandate did not apply to cases of emergency or special occasion. Such is the
undoubted law, but it does not apply to the statute under consideration. In this case there was
no emergency or special occasion calling for extraordinary action on the part of the
legislature. The several incumbents of the office had been elected for two years, under a
general law which required their successors to be elected by the people at the general election
in 1884. Before the expiration of the term for which they were elected there would be a
general election at which their successors could be elected in the manner and form provided
by the constitution. If it was desirable to change their terms of office from two to four years,
still there was nothing to hinder the election of their successors at the general election in
1884.
This language undoubtedly states the law, and is decisive of the case in hand. The doctrine
of State v. Irwin does not apply here, because, first, there was no special occasion or
emergency that justified or called for the legislative appointment of a new regent. There was a
board of regents already in existence, presumably at least, able and willing to discharge the
duties devolving upon them. If it was proper, and the legislature had the power to increase the
number of regents, still there could have been no crying necessity for its being done before
the next election. The affairs of the university could in the mean time be attended to by
officers elected by the people, and whom they must have thought when they elected them,
fully capable of so doing. It is not the case of an office that must be filled before the public
business can go on. SecondlyNo such special occasion or emergency could possibly exist
longer than to the next election, at which time the office could be regularly filled by the
people, This must certainly be so, unless we admit that there is some peculiar connection
between the office of attorney general and that of regent that makes it necessary that each
should be filled by the same incumbent, which there is no reason to suppose is the case.
To hold otherwise would be to make the university the football of the legislature. If this
appointment, extending over nearly four years, is valid, there is nothing to prevent the next
legislature, if the composition of the board does not suit them, from making all the other state
officers ex-officio regents. There is no reason to suppose that the power once admitted would
stop with them, but might extend to county officers and to others. But if, in accordance with
the requirements of the constitution, we hold that the regents must be elected by the people,
this places the institution upon a sure and safe foundation that should eventually lead to the
careful scanning of candidates and the election of the best men for the positions.
I concur in the judgment.
____________

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