Nevada Reports 1910-1911 (33 Nev.) PDF

33 Nev.
17, 17 (1910)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
July Term, 1910
____________
33 Nev. 17, 17 (1910) Barnes v. City of Carson
[No. 1885]
THERESA BARNES, Respondent, v. CITY OF
CARSON, Appellant.
1. Municipal CorporationsExcavations in StreetsLiability of City.
In an action against a city for personal injuries resulting from plaintiff's falling into
an excavation made in a street, although the act of incorporation of the city may have
given to the city trustees exclusive power to regulate its streets, drains, etc., yet where it
appeared that for some years the city had paid the bills which were approved by the city
trustees for street work done by the city marshal and had permitted him to do such
work, it must be presumed that it authorized him to make the excavation in question
rendering the city liable for his negligence.
Appeal from District Court of the First Judicial District of the State of Nevada, Ormsby
County; John S. Orr, Judge, presiding.
Action for personal injuries by Theresa Barnes against the City of Carson. Judgment for
plaintiff, and defendant appeals. Affirmed.
The facts sufficiently appear in the opinion.
Roberts & Sanford and Summerfield & Curler (Robert Richards, of counsel), for
Appellant:
Conceding, for the time being only, that it was the legal duty of the city to repair and
maintain the sidewalk or culvert in question, yet, if the court should hold, as we believe it
will, that the acts of Mr. Kinney and Mr. Lafreniere were ultra vires in the premises, and that
therefore the doctrine of respondeat superior cannot be made to apply, the defendant is not
liable to the plaintiff, and upon the record the case must be reversed, for the following
reasons:
FirstThe plaintiff will then be bound in law by her pleading, and the gist of the cause of
action must then be based upon the omission by the city to perform a legal duty, whereas the
gist of the action as laid in the complaint is based upon the alleged performance of a lawful
act in an unlawful manner; and
SecondThe plaintiff will then be bound in law by the evidence, or, rather, the absence of
evidence, in the case, in this: There is no evidence in the record showing or tending to show
in the least that the defendant had any knowledge or notice, either actual or constructive, of
the condition of the sidewalk or culvert, or of the existence of the excavation into which
plaintiff fell.
So, therefore, if Mr. Kinney and Mr. Lafreniere were acting ultra vires, or the city is not
responsible for their acts, as we will hereinafter show, the city is not liable to plaintiff under
the condition of the record as it exists in this court, for the element of defendant's negligence
will be absent both in pleading and proof; and as was said in Arndt v. City of Cullman, 132
Ala. 520, 90 Am. St. Rep. 925: It was incumbent on plaintiff in order to maintain the action
to aver and prove express notice of the alleged defect in the sewer, or facts from which it
might be inferred that the corporate authorities were properly chargeable with constructive
notice thereof.
In Smith v. Mayor, 66 N. Y. 295, 23 Am. Rep. 53, this language is used: There was no
evidence and there is no finding that the sewer was liable to become obstructed under
ordinary circumstances, so as to require the watch and care of the officials to prevent it
becoming filled and choked with the wash of the street, or that it had been obstructed for
any time and under circumstances from which it might be assumed that the officers of the
city did know or ought to have known the fact.
under ordinary circumstances, so as to require the watch and care of the officials to prevent it
becoming filled and choked with the wash of the street, or that it had been obstructed for any
time and under circumstances from which it might be assumed that the officers of the city did
know or ought to have known the fact. The city does not insure the citizen against damage
from the works of its construction, but is only liable, as other proprietors, for negligence or
wilful misconduct. The principles upon which municipal corporations are held liable for
damages occasioned by defects in streets and sewers and other public works are well settled
by numerous cases, and the liability is made to rest, in any case, upon some neglect or
omission of duty (Barton v. Syracuse, 37 Barb. 292, 36 N. Y. 54; Griffin v. Mayor of New
York, 5 Seld. 456; McCarthy v. Syracuse, 46 N. Y. 194; Nims v. Troy, 59 N. Y. 500), and the
judgment must be affirmed.
It is stated in City v. Weger, 66 Pac. 1070: Appellee had judgment against appellant for
damages on account of injuries sustained by a fall on a defective crosswalk in the city of
Boulder. The defect was a board about eight inches wide missing from a wooden crosswalk.
To justify affirming this judgment the evidence must show that the city had knowledge,
either actual or constructive, of the existence of the defect, and had not exercised proper
diligence in its repair.' (City of Denver v. Moewes, 60 Pac. 986.) It must appear that
defendant had notice of such obstruction, or that it had existed for such a length of time as to
impart notice, and that defendant had not used reasonable diligence in removing such
obstruction.' (City of Boulder v. Niles, 9 Colo. 415, 12 Pac. 632.)
See, also, Lewisville v. Batson, 29 Ind. App. 21, 63 N. E. 861; and Thompson's Com. Law
of Neg. vol. 5, sec. 6170, which lays down the rule that a municipality is not liable for
injuries caused by unguarded obstructions placed on its sidewalks by third persons, without
authority, unless it has either actual or constructive notice thereof.
We come now to the errors appearing in the record urged on this appeal.
We contend that from the facts in the case the defendant is not liable to the plaintiff for the
injuries sustained.
This proposition is reserved in the transcript in divers forms, namely, first, in the motion
for a nonsuit and the exception to the denial thereof; second, in the notice of intention to
move for a new trial upon the grounds therein specified; and, third, in the specific assignment
of errors relied upon by the defendant; in consequence of which, we urge:
FirstThat the evidence is insufficient to justify the verdict and judgment, and that the
same are against law; and
SecondThat the verdict of the jury and the judgment of the court are not supported by
the evidence and are contrary to the same.
We are well aware that the appellate court is not called upon to consider the weight of the
evidence when there is any evidence to support the verdict, and that it will not disturb the
verdict where there is a conflict of evidence, as these are matters for the lower court; but the
rule is otherwise where there is no evidence to support the verdict, and then it is the duty of
the appellate tribunal to reverse the case, and grant a new trial.
The undisputed facts appearing from the evidence, in so far as they relate to the powers
and duties of the city marshal or his employees, are that Mr. Kinney at the time of the
accident occurring to plaintiff, and prior and subsequent thereto, was the duly elected,
qualified and acting sheriff of Ormsby County, and by virtue of that office and deriving his
authority therefrom, he was the ex officio city marshal of Carson City, and on that date, and
prior and subsequent thereto, Mr. Lafreniere was hired and employed by him to work upon
the streets of the city in repairing breaks and culverts and on work required to be done upon
the streets and alleys of the defendant; that Mr. Kinney delegated the authority to Mr.
Lafreniere, and that neither the city council of Carson, nor the city, nor any of its officers,
ever had any control or direction of the duties of Mr.
control or direction of the duties of Mr. Kinney or Mr. Lafreniere, or ever undertook such
control or direction.
Such being the testimony of Mr. Kinney and Mr. Lafreniere in that regard, it becomes
necessary to examine the statute and amendments thereto incorporating the city, and the
ordinances thereunder, admitted in evidence, and to ascertain therefrom to what extent the
powers and duties of the city marshal and his employees have been defined. The statute and
amendments referred to are the following: An act entitled An act to incorporate Carson
City, approved February 25, 1875 (Stats. 1875, p. 87), the act amendatory thereof, approved
March 2, 1877 (Stats. 1877, p. 117), the act amendatory thereof, approved March 5, 1879
(Stats. 1879, p. 67), and the act amendatory thereof, approved March 6, 1889 (Stats. 1889, p.
68).
The only reference to the city marshal and his employees, or to their powers and duties, are
the following:
From the Act of 1875: Sec. 10. The board of trustees shall have the power:
FourteenthTo cause the city marshal to appoint one or such number of policemen, as
they shall from time to time determine, who shall be under the direction and control of the
city marshal.
Sec. 14. The sheriff of Ormsby County shall, in addition to the duties now imposed upon
him by law, act as the marshal of the city, and shall be ex officio city marshal.
Sec. 27. The city marshal, in addition to the general duties of his office, shall execute all
process issuing from the recorder's court, act with full powers as a policeman, and as chief of
all the police force appointed for the city as such, and shall collect all taxes upon city licenses.
In his absence the under sheriff shall act as city marshal.
Sec. 30. The powers and duties of the city marshal may be more fully defined by such
ordinances as shall not be inconsistent with this act.
From the Acts of 1877, 1879 and 1889: Sec. 10. The board of trustees shall have the
following powers:
To cause the city marshal to appoint one or such number of policemen as the board of
trustees shall from time to time determine, who shall be under the direction and control of the
marshal, as head of the police force of said city; but such appointment shall have no validity
whatever until the same shall have been approved by said board of trustees; and said board of
trustees shall have power to remove any such policemen from office, at pleasure, upon good
cause shown, and, upon a charge being preferred, to suspend until the same shall have been
passed upon finally.
It is evident, therefore, that under the act incorporating the city, and the amendments
thereto, the duties of the city marshal are merely the general duties of a peace officer, and that
the organic law of the municipal corporation gives him no authority or power to superintend
or repair streets, or bind the city, by contract or otherwise, in any matter whatsoever; and he
can have no general power or authority, and certainly none beyond the scope of his duties as a
peace officer, for the unanswerable reason, if for no others, that, as aforesaid, it is provided by
section 30 of the act that the powers and duties of the city marshal may be more fully
defined by such ordinances as shall not be inconsistent with this act. In the absence of a
more full definition of his powers and duties, he is limited by the express provisions of the act
and its amendments, and when he exceeds the authority granted him thereunder, as he has
done in this case, he does not act even colori officii, but is a common tort feasor, and the city
does not assume any responsibility, and cannot be bound, for any injuries sustained while he
so acts.
The question then presents itself: Has the board of trustees by the ordinances admitted in
evidence made such a more full definition of the powers and duties of the city marshal, and if
so, is the same applicable to the facts of this case? This question cannot be better answered
than by quoting these ordinances in extenso.
Ordinance No. 5
The Board of Trustees of Carson City do ordain:
Section 1. No person or business firm shall place or cause to be placed upon any street,
sidewalk, square or thoroughfare, any box, bale, lumber or any other thing, of any nature
whatsoever, so far as to obstruct the same, excepting only for the display of goods, wares and
merchandise; provided, that any person erecting or repairing any building may occupy and
use the sidewalk and one-third of the street in front thereof for such time as is necessary for
the depositing of material required for the construction or repair thereof; and provided
further, that for the purpose of displaying goods, wares and merchandise, two feet in width,
commencing at the front line of the lot, may be used; provided, that a space of six feet in
width shall at all times be kept clear for the accommodation of persons passing; and provided
further, that merchants and others receiving and delivering goods shall be allowed six hours
from the time they are deposited until they are removed.
Sec. 2. Any person by whom or under whose direction or authority any portion of a public
street, alley or sidewalk may be made dangerous, shall erect, and so long as the danger may
continue, maintain around the portion of the street, alley or sidewalk so made dangerous, a
good and substantial barrier, and shall cause to be maintained during the night, from sunset
till daylight, a lighted lantern at both ends of such portion of the street, alley or sidewalk so
made dangerous.
Sec. 3. No person shall in any manner or for any purpose break up, dig up, disturb,
undermine or dig under, or cause to be dug up, broken up, disturbed, undermined or dug
under, any public street, highway or place, or fill in, put, place thereon, or deposit in or upon
any public street, highway or place, any earth, sand, dirt, clay, manure or rock, without the
permission of the board of trustees being first had and obtained.
Sec. 4. Any person who shall violate any of the provisions of this ordinance shall be
deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum,
not less than five dollars nor more than two hundred dollars, or be imprisoned in the
county jail not more than two nor more than one hundred days, or be both so fined and
imprisoned."
demeanor, and upon conviction thereof, shall be fined in any sum, not less than five dollars
nor more than two hundred dollars, or be imprisoned in the county jail not more than two nor
more than one hundred days, or be both so fined and imprisoned.
Ordinance No. 30.
Section 1. Ordinance No. 23, providing for a special policeman for Chinatown, etc.,
adopted June 7, 1875, is hereby repealed.
Sec. 2. This ordinance shall take effect on and after the first day of April, 1876.
Ordinance No. 31.
Section 1. All owners of buildings and lots, or either, fronting to the west, on the east line
of Carson Street, between Washington Street and Sixth Street, shall lay down, within sixty
days after the passage of this ordinance, a good and substantial sidewalk in front of their said
property. Said sidewalks shall be ten feet wide at all places, and of uniform grade in each
block, as nearly as practicable. All sidewalks now laid down, within the limits hereinabove
described, which do not conform to the above-named requirements, must be made to conform
thereto within the above required time.
Sec. 2. All owners of buildings or lots, or either, in said city, fronting to the east, on the
west line of Carson Street, between Washington Street and Sixth Street, shall lay down,
within sixty days after the passage of this ordinance, a good and substantial sidewalk in front
of their said property. Said sidewalks shall not be less than eleven and three-quarters nor over
twelve feet wide at all places, and of uniform grade in each block, as nearly as practicable. All
sidewalks now laid down within the limits in this section specified, which do not conform to
the hereinabove specified requirements, must be made to conform thereto within sixty days
after the passage of this ordinance.
Sec. 3. Sleepers used in laying down sidewalks required by this ordinance shall not be
less than three by six inches in size, of sound material, well placed, not more than three feet
apart, and firmly supported; and the planking used thereon shall not be less than eleven and
three-quarters nor over twelve feet long, on the west side, and ten feet long on the east side of
said street, not less than two inches thick, not more than six inches wide, of sound material
evenly laid, and thoroughly spiked to the sleepers. Awning posts on all sidewalks shall be
placed within three inches of the outer edge thereof, and shall be thoroughly spiked and
secured at base and crown.
Sec. 4. Brick or stone may be used, if of suitable quality, in laying down sidewalks, but
must be made to lie evenly, and of width and grade as hereinabove specified.
Sec. 5. Sidewalks in said city shall be kept in good condition by the owners of the
property in front of which they are, at their own expense, and such owners shall be liable to
the city, and to any injured party, for all damages arising from failure so to keep sidewalks in
good condition for safe use thereof, as above required.
Sec. 6. For the purpose of carrying out and enforcing the foregoing provisions of this
ordinance, the city marshal is hereby made inspector of sidewalks in said city, and it shall be
his duty as such inspector, subject to the board of trustees of said city, to see that suitable and
proper material be used, sleepers laid at proper distances from each other, and placed
securely, the required size of sleeper and plank used, the prescribed width and grade observed
in laying said sidewalks, and that the provisions of this ordinance be in all respects carried
out. In the discharge of said duties, said inspector shall have the power and privilege to call to
his assistance such aid as he may need, in the way of experts, for whose services, when
rendered, the city shall pay a reasonable compensation.
Sec. 7. If any owner of any house or lot, or either, within the limits defined by this
ordinance, shall fail to lay down a sidewalk in front thereof, or to make the sidewalk, if any,
already laid down in front thereof, conform to the requirements of this ordinance, within
the time herein specified the city marshal shall, unless otherwise directed by the board of
city trustees, lay down such sidewalk, or cause that already laid down to conform to the
requirements of this ordinance without delay, and the necessary expense of so doing shall
be a lien upon the house and lot, or either, in front of which sidewalk shall be so laid
down, or made to conform to the requirements of this ordinance;
if any, already laid down in front thereof, conform to the requirements of this ordinance,
within the time herein specified the city marshal shall, unless otherwise directed by the board
of city trustees, lay down such sidewalk, or cause that already laid down to conform to the
requirements of this ordinance without delay, and the necessary expense of so doing shall be
a lien upon the house and lot, or either, in front of which sidewalk shall be so laid down, or
made to conform to the requirements of this ordinance; and the same shall be recovered by
action of said city against said property, and the owner or owners thereof, in any court of
competent jurisdiction.
The contention of appellant, that these ordinances do not define the powers and duties of
the city marshal so as to make them applicable to the case at bar, could, with propriety, be
considered in conjunction with the contention hereinafter made that the lower court erred in
admitting these ordinances in evidence over objection; and should this tribunal hold that these
ordinances do not make any such definition of the powers and duties of the city marshal, then
it follows as a logical sequence that the objection of the defendant to their introduction taken
at the trial should have been sustained. So, in determining this latter contention, our views in
this part of the brief presented are urged as additional reasons why this court should hold, as
hereinafter maintained, that the lower court erred in admitting these ordinances in evidence,
and that such ruling constitutes reversible error.
We can relegate Ordinance No. 30 from this discussion without comment, as it can throw
no light upon the subject whatever; and Ordinance No. 5 requires but short consideration.
This ordinance is general in its terms and penal in its entirety. Section 1 thereof prohibits the
obstruction of streets and sidewalks by merchants and other persons, and gives those erecting
or repairing buildings the privilege of using a designated portion of the street and sidewalk
for the deposit of necessary material thereon. Section 2 thereof requires any person, by whom
or under whom a street or sidewalk is obstructed, to guard the same with suitable barriers,
and to place at the same lighted lanterns during the night, while such obstruction
continues.
the same with suitable barriers, and to place at the same lighted lanterns during the night,
while such obstruction continues. Section 3 thereof prohibits the digging or disturbing of any
street, highway or place, or placing or depositing thereon earth, sand, rocks or dirt, without
the permission of the board of trustees; and section 4 thereof prescribes a penalty for the
violation of the ordinance.
Surely, it cannot be said that this ordinance defines the powers and duties of the city
marshal in any respect whatsoever, and its competency, relevancy and materiality as a feature
in the case cannot be urged with any force or success. If the action were a personal action
against Mr. Kinney, or Mr. Lafreniere, to recover damages for the action laid in the
complaint, it might well be said that their violation of this ordinance might be an element
tending to fix the amount of their liability to the plaintiff. If the plaintiff can recover in this
case, it is only under the doctrine of respondeat superior, and this ordinance cannot tend to
establish the relation of principal and agent or of master and servant, between the city on the
one side and Mr. Kinney and Mr. Lafreniere on the other, in any degree whatever. Hence,
Ordinance No. 5 is also eliminated from the case.
There only remains, then, Ordinance No. 31 under which to define the powers and duties
of the city marshal as applicable to the case at bar, but for that purpose it can afford no aid.
This ordinance contains seven sections, and is entitled An ordinance in relation to
sidewalks. Sections 1, 2, 3, 4 and 7 thereof have no bearing upon the question here involved,
as they appertain exclusively to sidewalks for Carson Street, between Washington and Sixth
Streets, in the city, section 7 thereof particularly providing that if any owner of any house or
lot, or either, within the limits defined by this ordinance, i. e., Carson Street between
Washington and Sixth Streets in the city, shall fail to lay down a sidewalk, etc., and
continuing by providing certain duties of the city marshal in that event, and certain
consequences to the property and the owners thereof within said limit.
Since none of the sections named can be construed to control or even appertain to the work at
the corner of Curry and Telegraph Streets, Carson City, where the injuries were sustained by
plaintiff, it is expedient to analyze sections 5 and 6 of this ordinance. These, by no
intendment, nor by any rule of statutory construction, can be held to define the powers and
duties of the city marshal to any extent other than to inspect the kind and grade of material to
be used in sidewalks, and the detailed methods in the construction thereof as prescribed in the
ordinance, and certainly not to the extent of requiring or even permitting the city marshal
without let or hindrance to lay, or construct, or repair sidewalks throughout the city.
By section 5 of the ordinance the duty is imposed upon property owners to keep their
sidewalks in good condition, and for failure so to do, they are made liable in damages, and by
section 6 thereof it is provided that for the purpose of carrying out and enforcing the
foregoing provisions of this ordinance, the city marshal is hereby made inspector of sidewalks
in said city; and it shall be his duty, as such inspector, subject to the board of trustees of said
city, to see that suitable and proper material be used; sleepers laid at proper distances from
each other, and placed securely; the required size of sleepers and planks used; the prescribed
width and grade observed in laying said sidewalks, and that the provisions of this ordinance
be in all respects carried out. In the discharge of said duties, said inspector shall have the
power and privilege to call to his assistance such aid as he may need, in the way of experts,
for whose services, when rendered, the city shall pay a reasonable compensation.
It appears from this last section that each duty of the city marshal in relation to sidewalks
is specifically enumerated, and no duty omitted can be regarded as included therein, but, by
operation of law, it must be held to be excluded therefrom under the well-settled rule:
inclusio unius, exclusio alterius. Moreover, the phrases in the latter part of the section,
namely, in the discharge of said duties, i. e., duties elsewhere above enumerated, and, in
the way of experts, import and imply that the powers conferred and the duties imposed
by that section are merely such that permit and require the city marshal to inspect the
kind and grade of material and the detailed methods of construction as prescribed in the
ordinance, and certainly not to permit or require him to construct or repair sidewalks
throughout the city, as aforesaid.
latter part of the section, namely, in the discharge of said duties, i. e., duties elsewhere above
enumerated, and, in the way of experts, import and imply that the powers conferred and the
duties imposed by that section are merely such that permit and require the city marshal to
inspect the kind and grade of material and the detailed methods of construction as prescribed
in the ordinance, and certainly not to permit or require him to construct or repair sidewalks
throughout the city, as aforesaid.
However, let the interpretation of this ordinance be as it may, it relates simply and
exclusively to sidewalks, and we are concerned here with a flooded sewer, drain or ditch, and
the excavation therefrom made to repair the same. No matter what powers can be said to have
been conferred or duties imposed by the ordinance upon the city marshal, relating to
sidewalks, those powers and duties cannot be extended to include the performance of the
work alleged in the complaint by the city marshal or by those whom he should employ for
that purpose.
It is apparent, we think, that whether the excavation in question be regarded as a repair to a
sidewalk, or a repair to a drain, ditch or sewer, no power was conferred, or duty imposed,
either upon Mr. Kinney, as city marshal, or upon Mr. Lafreniere, employed by him, by
statutory enactment, city ordinance, or by direction of the executive officers of the
municipality, and without such authority, and the direction and control of the work
undertaken by Mr. Kinney and Mr. Lafreniere, as appears from the evidence here, the doctrine
of respondeat superior cannot be made to apply, and the city is not liable for the injuries
sustained, for their acts in the premises were ultra vires, which made them common tort
feasors, and for which they alone are responsible in damages to the plaintiff. (28 Cyc. pp.
1274, 1276, 1278; 20 Am. & Eng. Ency. Law, pp. 1199, 1200, 1201, 1202.)
It was said in McDonough v. Mayor, 6 Nev. 95: It is manifest from what is said that the
plaintiff must allege and prove that the street where the injuries resulted was opened by the
city, and that the pitch or defect was made by it, or that it was left in that condition when
the street was opened.
made by it, or that it was left in that condition when the street was opened. These facts are not
alleged in the complaint, nor were they proven at the trial. The judgment must be reversed.
A case very similar to the facts presented on this appeal was decided by the Supreme Court
of Maine in 1902, being entitled Bowden v. The City of Rockland, and reported in 11 Am.
Neg. Rep. 429, et seq. It appeared there that a wall along a public highway proved insufficient
and collapsed, and it became necessary to build a new wall to make the highway safe, within
the statute. To do this required the wall to be built partly, at least, upon land outside of the
limits of the highway, and accordingly the owners of the land and the quarry sent to the city
counsel a written license to build and maintain such a wall, and to take the materials from the
quarry. The street railway also using the highway stipulated with the city in writing to bear
part of the expense. The city engineer made a plan for the work, and undertook the building
of the wall in accordance therewith, and during the course of construction thereof a boom
slipped and plaintiff was injured, for which he sought to mulct the city in damages upon the
ground that the slipping of the boom and his consequent injury resulted from the negligence
of the street commissioner in setting up the derrick, and that in setting up the derrick the
street commissioner was the agent of the city and was not then acting as a public officer in the
performance of official duty. The court said:
Rebuilding the retaining wall on a larger scale than the old (that being necessary to make
the way safe and convenient) was clearly within the statutory powers of the street
commissioner, at least after the city had provided funds and a place therefor. It is well settled,
by decisions too numerous and familiar to require citation, that a highway surveyor or street
commissioner in repairing ways is, and acts as, a public officer, and the municipality, within
whose limits he acts and which appointed him and furnished him funds for the work, is not
liable for his torts, unless it has interfered and itself assumed control and direction of the
work, and of the surveyor or commissioner.
for his torts, unless it has interfered and itself assumed control and direction of the work, and
of the surveyor or commissioner. Has the city thus interfered and assumed control and
direction in this case? is the pivotal question.
While some persons, probably city officers, in behalf of the city, procured the written
license of the quarry owners, and also a stipulation from the street railway company to bear
part of the expense of rebuilding the wall, it does not appear that the city council ever passed
a vote in the matter. No directions appear to have been given by vote of the city council, or
the committee on streets, to the city engineer to prepare plans. So far as appears, he did so suo
motu, as part of his regular work, or at the request of some officers. The plaintiff, however,
claims that the mayor and one or more of the committee on streets gave the street
commissioner orders to build the wall, and that he acted under those orders, and not under his
statutory authority. We do not think that plaintiff's own evidence shows so much. There
appears to have been some question in the mind of the street commissioner as to his authority
to build the wall as street commissioner, in view of all the circumstances. He consulted the
mayor, the city solicitor, and members of the committee on streets, and they assured him that
he had the authority as street commissioner, and told him to go ahead and build the wall. He
then proceeded with the work as above described.
It must be apparent that this is not enough to show that the city assumed the control and
direction of the work and of the commissioner, reducing him from a public officer to a mere
employee of the city. At most the various officials with whom he talked merely assured the
commissioner that he had authority and the duty to build the wall, and told him to go ahead
and exert his authority, and to do his duty, and it would be all right.' This case is more within
Barney v. City of Lowell, 98 Mass. 570, and Prince v. City of Lynn, 149 Mass. 193, 21 N. E.
296, in which cases the city was held not liable for the negligence of the street
commissioner, though he was acting under the city charter.
gence of the street commissioner, though he was acting under the city charter.
That the city obtained the license from the quarry owners to use their land and materials
was not a usurpation of the street commissioner's authority, and did not oust him from the
control and direction of the work of rebuilding, no more than if the city had condemned the
land and material. The arrangement for the street railroad company to bear part of the
expenses had no effect upon the status of the street commissioner, no more than arrangement
to raise the money by loan or tax. That the plan for the wall was made by a city employee (the
city engineer) did not make the city the owner or director of the work.
We do not say that if the mayor, city solicitor, or members of the committee on streets, or
all combined, acting of their own volition, without vote of the council, had specifically
assumed control and direction of the work and of the commissioner, such act of theirs would
have made the commissioner a mere agent of the city, and the city his principal, answerable
for his torts. It was said in Woodcock v. City of Calais, 66 Me. 234, on page 236, citing
Haskell v. City of Bedford, 108 Mass. 208, that the orders which the street commissioner may
have received from the mayor or city solicitor could not affect his relative status to the city,
and could not bind the city in respect to the commissioner's acts. In Goddard v. Inhabitants of
Harpswell, 88 Me. 238, 33 Atl. 980, it was held that the selectmen, without vote of the town
authorizing it, could not make themselves agents of the town in matters of highways.
In this case it is enough to say that the evidence does not show that the city, through the
action of any legally constituted authority, had so far assumed control and direction of the
work of rebuilding the wall, and of the street commissioner, as to make his negligence in
setting up the derrick the negligence of the city.
The facts of the case at bar are even stronger in appellant's favor than those appearing in
the foregoing decision.
lant's favor than those appearing in the foregoing decision. There the city authorities did take
some active interest, if not an active part, in the work in hand, to the extent that the city
engineer prepared the plans, the license from the quarry owners inured to the benefit of the
municipality, and the executive officers thereof were consulted about the work, and at least
verbally sanctioned it, yet such things done on behalf of the city did not establish in law that
the city had, or had assumed, any authority, control or direction over the rebuilding of the
wall or over the street commissioner; while it appears from the record on this appeal that the
city neither expressly nor impliedly, nor did any of its executive officers, authorize, direct or
control any of the acts of the city marshal or any of his employees in any matter whatever; but
on the contrary it affirmatively appears that neither Mr. Kinney nor Mr. Lafreniere was
empowered or obligated, by statute, ordinance, resolution or verbal direction of or on behalf
of the defendant, to make the excavation in question, or to repair the drain, ditch, sewer or
sidewalk mentioned in the complaint; and that Mr. Kinney assumed exclusive jurisdiction
over that character of work, but under what designation or grant of power he did so it does
not appear, and it cannot be ascertained; and that he employed whomsoever he saw fit, and
did not suffer the city, nor any of its officers, to direct or control him in the least.
As has been well said in the case of Hilsdorf v. City of St. Louis, 45 Mo. 95, 100 Am. Dec.
352: The rule that prescribes the responsibility of principals, whether private persons or
corporations, for the acts of others is based upon their power of control. If the master cannot
command the servant, the acts of the servant are clearly not his. He is not master, for the
relation implied by that term is one of power, of command; and if a principal cannot control
his agent, he is not an agent, but holds some other additional relation. In neither case can the
maxim, respondeat superior, apply to them, for there is no superior to respond."
is no superior to respond. While we have made this excerpt from this case, as we deem it in
point, we will further discuss this decision.
It appears from the opinion that the stables of the St. Louis Railroad Company were
consumed by fire, and one hundred and forty mules therein destroyed, and their carcasses left
more or less burned. The weather was warm, and, obviously, it became necessary to remove
them at once. The city had previously legislated concerning the removal of carcasses, and
pursuant to such legislation had granted the exclusive privilege to certain designated persons,
which privilege was in force at the time of the fire. On the morning of the loss by the railroad
company the clerk of the board of health received the proper notice from the company under
the ordinance, and one Settle, employed by those who had the privilege, appeared on the
scene for the purpose of removing the carcasses, and there met the mayor of the city. On
account of the distance it was at once apparent that the removal could not be made to the
usual place, and that Settle had no means of consummating the removal, and informed the
mayor that it would take him a week to do the whole job. The mayor then obtained a
proposition from him to throw them into the river at a designated place for a specified price
per head, which was communicated to the railroad company, which afterwards paid the
aggregate amount. The carcasses, having been dumped into the river, the current did not
strike them as supposed, and they sank into plaintiff's quarry; on which account he was
denied the use thereof, and prosecuted an action for damages against the city of St. Louis and
the railroad company. The court said:
The defendants made separate defenses, and after the evidence was submitted, counsel for
the city asked the court to instruct the jury that, on the facts proved, the plaintiff could not
recover against it. This instruction the court refused to give, and thus the question is raised
whether, under the facts claimed to be proved by the plaintiff, the city is liable to him for the
damage arising from the acts of Settle.
from the acts of Settle. If the city is thus liable, the liability arises by virtue of its relation to
the mayor and to Settle, or to one of them. The responsibility of an employer for those in his
service depends upon the character of their acts, and especially upon their relation to the
service. It would not be right to charge him for the torts of his servant that had no relation to
his employment. The contract of service is no guaranty of general good conduct as a citizen,
but any act done in pursuance of the contract of hire will in general charge the principal as
well as the agent or servant. Corporations, whether municipal or aggregate, are now held to
the same liability as individuals, and will not be permitted to screen themselves behind the
plea that they are impersonal, and their acts are but the acts of individuals; and if an agent or
servant of a corporation, in the line of his employment, shall be guilty of negligence and
commit a wrong, the corporation is responsible in damages.
In the case at bar, the mayor, it appears, acted with zeal and energy to save the public
from the effects of the terrible nuisance upon the premises of the railroad company. But he
cannot be said to have been acting upon behalf of the city, but rather as a good citizen, whose
other heavy responsibilities were a spur to look after the public welfare generally. The general
duty of abating nuisances is imposed by article 1 of said ordinance 4894, especially by
sections 6 and 7, upon the board of health, and the street inspectors under its direction, and it
does not appear that the mayor has anything to do with the matter. The matter did not come
before the board of health, nor does it appear that the mayor undertook to bind the city, or that
he acted officially in the premises. But if he did, he went beyond his authority as mayor, and
his acts were not those of the city. (Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157.)
The suggestion that Settle did not remove these carcasses under this contract of his
employers, but by special direction of the mayor, only brings us back to the first proposition,
that the mayor had no authority to give any such direction, nor does it appear that he acted
officially, but, as we shall presently see, effected between Settle and the railroad
company an arrangement for their removal.
such direction, nor does it appear that he acted officially, but, as we shall presently see,
effected between Settle and the railroad company an arrangement for their removal.
The judgment, being against both the city and the railroad company, when it should have
been against the railroad company alone, is reversed and the cause remanded.
As, from the record here, it appears that the power over drains, ditches, sewers, sidewalks
and culverts, is reserved by law to the board of trustees of the city of Carson, and that the city
marshal usurped the functions of that board in making the alleged repairs, and as it nowhere
appears that the board had any knowledge of the condition of the drain, sidewalk, ditch, sewer
or culvert, or of the excavation, mentioned in the complaint, we believe that the rules laid
down in the case last quoted from are strongly applicable for a proper determination of this
appeal, and, paraphrasing an expression in that decision contained, we declare with
confidence that the matter of those repairs did not come before the board of trustees, nor does
it appear that the city marshal undertook to bind the city, or that he acted officially in the
premises. But if he did, he went beyond his authority as city marshal, and his acts were not
those of the city. (19 Pick. 511; 31 Am. Dec. 157.)
The rule is thus stated in Caspary v. The City of Portland, 20 Am. St. Rep. 845: It will
thus be seen that, on general principles, it is necessary, in order to make a municipal
corporation impliedly liable, on the maximum of respondeat superior, for the wrongful acts
or negligence of an officer, that it be shown that the officer was its officer, either generally or
as respects the particular wrong complained of, and not an independent public officer; and
also that the wrong was done by such officer while in the legitimate exercise of some duty of
a corporate nature which was devolved upon him by law, or by the direction or authority of
the corporation. (2 Dillon on Municipal Corporations, sec. 974.)
As was said in Gould v. City of Topeka, 4 Pac. 828; Courts should not allow any but the
most formal evidence to be introduced to prove that the city authorities had planned, or
ordered or ratified, any such dangerous place within their streets. Courts should not presume
without formal proof that the governing board of a city had deliberately done wrong.
There was no evidence showing that the city, by its council or otherwise, had ever
expressly planned or ordered that the street where plaintiff's injuries occurred should be made
or left in the condition in which it then existed; and the evidence does not show that the city,
by its council or otherwise, ever expressly ratified any such condition of the street. The only
evidence upon this subject was that the street had remained in that condition for some years,
and that the mayor and two members of the city council had knowledge of its condition. The
judgment of the court below will be reversed, and the cause remanded for a new trial.
It is with some degree of confidence that we bring this topic of our brief to a close. There
is no evidence of essential elements in the case to enforce liability against the defendant in
this appeal. We have established that unless the city itself undertook the work, or duly
authorized it, or that it was done by the city marshal empowered by either statutory
enactment, municipal ordinance, or express authority, control and direction of the executive
officers of the defendant, the plaintiff cannot recover in the action. It is evident, from the
discussion we have made, that the city did not undertake, nor authorize, the work, and that the
city marshal was not empowered as aforesaid, or at all, but acted in the premises, under
supposed legal right, no doubt, yet, of his own volition, unauthorized, undirected and
uncontrolled. Applying the law to this situation, as it is, and as we have laid it down, the
evidence is insufficient to support the verdict, and the motions for nonsuit and for a new trial
should have been granted, as of course.
In conclusion, without further quotation or argument, we cite: Kansas City v. Brady, 34
Pac. SS4; Sievers v. San Francisco, 47 Pac. 6S7; Mitchell v. Rockland, 41 Me.
we cite: Kansas City v. Brady, 34 Pac. 884; Sievers v. San Francisco, 47 Pac. 687; Mitchell
v. Rockland, 41 Me. 363, 68 Am. Dec. 252; Thayer v. Boston, 19 Pick. 511, 31 Am. Dec.
157; Hilsdorf v. City of St. Louis, supra, 100 Am. Dec. 352, and the extended monographic
note following the opinion; Goddard v. Inhabitants, 30 Am. St. Rep. 373, and the extended
monographic note following the opinion; Barrows on Negligence, secs. 180, 181.
Leaving the proposition last presented, we now contend that the lower court erred in
admitting in evidence over defendant's objections Ordinances Nos. 5, 30, and 31. The
objections to their introduction and the exceptions reserved to their admission are very
specific, when it would have been sufficient to have stated that each of those ordinances was
incompetent, irrelevant and immaterial. Hence, it is unnecessary here to incorporate such
objections and exceptions.
If the reason or motive for the introduction of the ordinances on behalf of plaintiff were
desired, it could be readily ascertained by a mere reference to the transcript. It will be noted
that only after the motion for a nonsuit was argued, submitted and denied, then, under leave
of court, the plaintiff reopened her case, and over objection introduced the ordinances in
question. It evidently appealed to plaintiff that the denial of that motion afforded no security,
in that a material and essential element in her proof was lacking, namely, the power and
duties of the city marshal in the premises, and though there was, and could be, no proof to
supply that element, yet it was incumbent upon her, at least, to attempt to supply the same,
and in making that attempt she caused these ordinances to be introduced in evidence.
However, we have shown hereinabove that the ordinances referred to confer no power and
impose no duty upon the city marshal or his employees in relation to the repairs mentioned in
the complaint, and therefore they and each of them are irrelevant, incompetent and
immaterial, and the court erred in permitting their introduction. But it might be urged that this
error was harmless, to which we reply that it was manifestly prejudicial, since thereby the
plaintiff was permitted to attempt to prove to the satisfaction of the jury an essential
element of her case, and especially since no other evidence was or could be adduced by
her to establish that element, namely, the power and duty of the city marshal and his
employees, if any they had, in relation to the work or repairs upon the drain, ditch, sewer,
sidewalk or culvert, referred to in the complaint.
that it was manifestly prejudicial, since thereby the plaintiff was permitted to attempt to prove
to the satisfaction of the jury an essential element of her case, and especially since no other
evidence was or could be adduced by her to establish that element, namely, the power and
duty of the city marshal and his employees, if any they had, in relation to the work or repairs
upon the drain, ditch, sewer, sidewalk or culvert, referred to in the complaint. The error of
admitting these ordinances in evidence is plain, and that it was highly prejudicial is
self-evident.
See the case of Stebbins v. Mayer, 16 Pac. 745.
At the request of the plaintiff the court gave to the jury Instruction No. 1, to which
defendant excepted, and which said instruction is as follows: You are instructed that the
fundamental principle of the law of damages is that the person injured in his person or
property rights shall receive compensation therefor, for which the person injured, if
reasonable care and prudence were observed, is entitled to compensation to the full amount of
the injury suffered. We contend that the giving of this instruction was prejudicial error.
Taking this instruction as an abstract proposition of law, a mere reading of it convinces that it
is incorrect. Its incorrectness is plain from its incompleteness; and when it is sought to apply
such an instruction to a concrete case, especially to the case at bar, where no defense was
made as to the nature and extent of plaintiff's injuries, or to the condition of the place where
the same occurred, the incorrectness of that instruction was doubly apparent.
By so instructing the jury, it was in effect telling the members thereof that, from the mere
fact that plaintiff was injured by falling into an excavation on a public street, that therefore
she was entitled to recover damages against the city. The jurors' minds were thereby
distracted from the question as to whether the city was negligent, and even from the question
as to whether the injury was caused by plaintiff's negligence, and their minds were thereby
solely centered upon the one question, namely, the injury itself, and the nature and extent
thereof.
thereof. Such an instruction, without the qualifications here mentioned contained therein, is
wrong in theory and vicious in practice.
Samuel Platt and Alfred Chartz, for Respondent.
By the Court, Sweeney, J.:
Respondent obtained a judgment against the appellant in the sum of $5,000 for personal
injuries on account of falling into an excavation made in one of the public streets of the city
of Carson, which excavation was alleged to have been made by the appellant and negligently
left unprotected. From the judgment, and from an order denying the defendant's motion for a
new trial, defendant has appealed.
It is the main contention of appellant that the proofs failed to show that the excavation was
made under the authority of the city trustees, or that they, with knowledge, ratified the acts of
the persons who performed the work. It is the contention of appellant that the evidence
shows, without conflict, that the work was done under the direction of the city marshal acting
independently of the city trustees, and that there was no proof that he was authorized by the
said city trustees to perform such work, nor was his act ratified by said trustees with
knowledge of the circumstances. It is further contended upon the part of the appellant that the
said city marshal, by virtue of his office, had no power to make the excavation, nor did he
possess, by virtue of his office, any supervision over the streets and alleys of the city of
Carson.
Section 10 of the act incorporating the city of Carson (Stats. 1875, c. 43, as amended by
Stats. 1907, c. 29) provides The board of trustees shall have the following powers: * * * 3.
To lay out, extend or change the streets and alleys in said city and provide for the grading,
draining, cleaning, widening, lighting or otherwise improving the same; also to provide for
the construction, repair, preservation, grade and width of sidewalks, bridges, drains and
sewers and for the prevention and removal of obstructions from the streets, alleys and
sidewalks, drains and sewers of said city.
obstructions from the streets, alleys and sidewalks, drains and sewers of said city. * * *
It may be conceded, under this provision of the statute, that the control of the streets,
sidewalks, and alleys of Carson City is exclusively in the hands of the city trustees, and that
the city marshal, by virtue of his office, has no power or control over the same. Whatever acts
the city marshal may perform in relation to the streets, sidewalks, and alleys of the city must
be by virtue of authority from the city trustees, or else they are, in law, but the mere acts of a
stranger.
The excavation in question was made by one A. Lafreniere, who testified that he was
employed by and acting under the general direction of the city marshal. The said Lafreniere
testified that he had been in the employ of the city marshal for about four years prior to the
accident in question, and that he was paid for his services by the city. It also appears from the
record that the said Lafreniere was the man generally in charge of the street work for the city.
While Mr. Lafreniere testified that he was employed by and acting under the direction of the
city marshal in the matter of looking after the streets and alleys of the city, and while the
marshal's testimony was to the same effect, it can hardly be said, we think, that both the city
marshal and Mr. Lafreniere were not working under the direct authority of the city trustees.
All claims for services rendered were approved by the city trustees and paid by the city, and
this condition of affairs is shown by the record to have existed for at least four years prior to
the accident in question. It cannot be said, we think, that a long-continued arrangement of this
kind was not without the authority and approval of the city trustees who alone had legal
authority in the premises. Had the proofs shown that the city marshal and the witness
Lafreniere had assumed to act only in the particular case which resulted in the injury to the
plaintiff and respondent, it might well be contended that the city would not be bound by their
acts unless by proof of special directions in this particular case or by subsequent ratification
with full knowledge of all the facts.
particular case or by subsequent ratification with full knowledge of all the facts. Where it
appears conclusively, however, that the work done upon the streets, which occasioned the
accident, was in pursuance of a policy in reference to such streets that had existed for a
number of years, it must be presumed that such policy was with the approval of the lawfully
constituted authority.
However, whatever question there may be as to whether the work in question was done by
lawful authority or was subsequently ratified, the same, we think, is removed from question
in the case by the pleadings themselves. The answer of the defendant, appellant herein, sets
up the following: For a third, other, and affirmative answer and defense to plaintiff's
complaint, defendant alleges and shows to the court as follows, to wit: That at the time
mentioned in plaintiff's complaint, to wit, the 24th day of January, 1906, and for several days
immediately prior thereto, a violent storm and precipitation of water occurred in Carson City
and the vicinity thereof, necessitating defendant, by and through its employees, in different
places to temporarily open drains and ditches in order to allow the flood waters to pass
therethrough, and that because of said necessity defendant did on the said 24th day of
January, A. D. 1906, at the place mentioned in plaintiff's complaint, partly open the plank
covering of a drain ditch, and did temporarily remove therefrom accumulated debris and dirt
for the purpose of allowing said flood waters to pass through, but that said act or acts of the
defendant were rendered necessary by reason of the extraordinary and unusual conditions
herein mentioned, and that said removal and deposit of said materials was temporary and was
performed and caused to be performed by defendant in as reasonable and safe a manner as
said existing conditions permitted.
From this alleged appellant's defense, it appears that the city authorities knew, prior to the
accident, that a condition existed making it necessary to make repairs in the street at the place
where the accident occurred, and that it did make the excavation which occasioned the
accident and resulting injury to the plaintiff, for which a judgment for damages was
recovered in this case.
that it did make the excavation which occasioned the accident and resulting injury to the
plaintiff, for which a judgment for damages was recovered in this case. There is here a clear
admission in the appellant's answer of the only fact that has been argued upon the appeal as
being unsupported by the evidence. The evidence is without contradiction that the excavation
was left in the evening without lights to warn pedestrians of its existence and that, by reason
of such negligence, the injury in question occurred. No question is presented upon the appeal
that the damages were excessive.
Error is assigned in the admission of certain city ordinances over defendant's objection and
in the giving of one instruction to the jury, but in the view we take of this case, even
conceding, without so deciding, that the lower court erred in the admission of the ordinances
or in the giving of the instruction, the same were without prejudice. When it was established
upon the trial that the excavation was made in the street by the city and negligently left in the
nighttime without proper lights to indicate the same, and that by reason thereof the plaintiff
was injured, there was nothing left for the court and jury to determine but the amount of
damages. As the other alleged errors did not go to the question of the amount of damages, the
alleged errors, if any occurred, could not possibly have been prejudicial, hence we have given
them no consideration whatever.
The judgment and order of the lower court are affirmed.
____________
33 Nev. 44, 44 (1910) McKim v. District Court
[No. 1911]
SMITH H. McKIM, Petitioner, v. THE DISTRICT COURT OF THE SECOND JUDICIAL
DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF
WASHOE, and the HON. W. H. A. PIKE, One of the Judges of said Court, and W. A.
FOGG, Clerk of said Court, Respondents.
1. PleadingPlea in AbatementAnswer.
Under civil practice act, sec. 39 (Comp. Laws, 3133), providing that the only pleadings on the part of
the defendant shall be a demurrer or an answer, and section 44 (section 3139) providing that when any of
the matters enumerated in section 40 (section 3135) as grounds of demurrer do not appear on the face of
the complaint, the objection may be taken by answer, matters in abatement or bar can only be set up in
the answer.
2. TrialPreliminary QuestionsDetermination.
Where the answer raises a question preliminary to the right of the court to determine the merits, it is
proper for the court to first determine such matter before considering issues going to the merits.
3. DivorceDetermination as to JurisdictionMode of Review.
The question raised by defendant in divorce as to the sufficiency of the evidence to establish
residence on the part of the complainant can be reviewed only by appeal, and not by original proceedings
in the supreme court, seeking to obtain an order requiring the judge of the trial court to show cause why
defendant in the divorce should not be permitted to file his plea in abatement.
Original proceeding. In the matter of Smith H. McKim against the District Court of the
Second Judicial District of the State of Nevada, and others. On a petition praying that
respondents be required to permit petitioner to file a certain plea in abatement. Dismissed.
James Glynn, for Petitioner:
I. Jurisdiction of subject of action may be challenged at any time by court of its own
motion, by defendant or by stranger to suit.
II. When lack of jurisdiction appears upon face of record, challenge may be by motion to
dismiss or by demurrer.
record, challenge may be by motion to dismiss or by demurrer.
III. When such lack of jurisdiction does not appear of record, it can be reached before
joinder of issue only by plea in abatement. (Gregg v. Sumner, 21 Ill. App. 110.)
IV. The question of jurisdiction of subject-matter of action is quite apart from the
meritsespecially in a divorce action under our statute. Facts constituting jurisdictional
prerequisites may be traversed without considering facts plead as cause of action, and, if
traversed in advance of issue upon merits, should be determined before issue as a matter of
justice to the court as well as the defendant. If traverse is predicated upon what appears of
record, courts never refuse to consider by motion to dismiss. How much more should they do
so if showing be made of an attempt to impose upon the court's jurisdiction by false
allegations of jurisdictional prerequisites. (Sommers v. Sommers (divorce case), 16 Bradwell
(Ill. App.) 76.)
V. Residence, which signifies such bona fide residence as amounts to legal domicile, is a
jurisdictional prerequisite under Comp. Laws, 502, and failing to appear action should be
dismissed. If made to falsely appear, it becomes an attempted fraud upon the courtand that
fact should be permitted to be shown before issue, to the double end that (1) the court may
prevent the imposition, and (2) the defendant may be spared the manifest injustice of being
required to proceed to a hearing that will represent much of annoyance, loss of time and
expense which can never be included in a cost bill.
VI. Divorce proceedings are recognized as being sui generis. This is especially true under
statutes like ours, providing for a purely conditional jurisdiction (Comp. Laws, 502) and a
special method of service upon nonresidents (Comp. Laws, 503). A clear recognition of this
is to be found in the holding of this court to the effect that the law of marriage and divorce,
as administered by the ecclesiastical courts, is a part of the common law of this country,
except as it has been altered by statute."
country, except as it has been altered by statute. (Wuest v. Wuest, 17 Nev. 217.)
VII. A plea in abatement is the recognized method of disclosing a lack of jurisdiction of
the subject of the action, and that before joinder of issue. (Coonis Com. Co. v. Block, 130 Mo.
668; Welling v. Beers, 120 Mass. 548; Livingston v. Story, 11 Pet. 392; Ency. Pl. & Pr. p. 4;
Winter v. Union Pkg. Co., 93 Pac. 930; Wells v. Patton, 50 Kan. 732; Bailey v. Schrader, 34
Black (Ind.) 260; Sutherland Code P. & P., vol. 1, secs. 460-559; Hoppwood v. Patterson, 2
Or. 50; Or. Cent. Ry. v. Wait, 3 Or. 428; Fairbanks v. Woodhouse, 6 Cal. 434; Small v.
Gwinn, 34 Cal. 676; Preston v. Culbertson, 58 Cal. 198.)
VIII. A resort to a plea in abatement for the purpose of disclosing lack of jurisdictional
prerequisites in advance of issue is authorized by Comp. Laws, 3095, in that it is neither
repugnant to nor in conflict with the general provisions of the practice act, for the reason that
they leave us provisionless in such an exigency.
IX. But if some latitude were needed to permit the resort to a plea in abatement in such
case, by reason of the provisions of the practice act as to pleadings, it should certainly be
found to be authorized by Comp. Laws, 506, by the terms of which it is most manifest that
the legislature recognized that with this sui generis class of actions the proceedings,
pleadings and practice could not be expected to conform exactly to the general rules
governing ordinary actions.
X. Moreover, the concluding clause of the section (Comp. Laws, 506): But all
preliminary and final orders may be in such form as will best effect the object of this act, and
produce substantial justice, clearly contemplates all needed latitude in respect to the
determination of so important a preliminary question as the existence of the prescribed
statutory jurisdictional prerequisites.
XI. The substantial justice which is to be conserved under the provisions of Comp.
Laws, 506, will not permit the status of the defendant to be lost sight of. He is shown to be a
resident of the State of New York, where the facts alleged in the complaint do not
constitute a ground for divorce.
the facts alleged in the complaint do not constitute a ground for divorce. By constructive
service he is made a party to an action in this state for the purpose of adjudicating his
matrimonial relation under laws more unfavorable to him than the laws of his domicile. If the
wife has not acquired a legal domicile in Nevada, her domicile remains by operation of law
that of her husband's and the courts of New York alone have jurisdiction of their matrimonial
relation. Surely substantial justice in such a situation will require a preliminary examination
and determination of the bona fides of her residence when it is challenged without requiring
defendant to change his status in relation to the action by filing of an answer and submitting
personally to the jurisdiction of the court. This can be done in no other way known to the law
than by plea in abatement before issue, the absence of jurisdiction not appearing of record,
but, as alleged, being concealed by the false allegations of the complaint as to residence. If in
such case the court would dismiss on motion of a stranger (Haley v. Eureka Co. Bank, 17
Nev. 127; also 112 Cal. 147) in case nonjurisdiction appeared of record, how much more
jealous it should be to preliminarily inquire into the facts if a prima facie showing be made of
an attempt to impose upon the court's conditional statutory jurisdiction?
XII. The right of the defendant to appear specially for the purpose of such plea to the
jurisdiction of the court over the subject of the action is in thorough accord with the
recognized principles of special appearances. He is not invoking the jurisdiction of the court
and therefore by the principles of estoppel debarred from thereafter denying it; he is rather
protesting against that jurisdiction, and, denying the facts alleged to foundation it, asking the
court to examine and determine the question before issue. (Brown v. Webber, 6 Cush.
564-569; Abbott v. Semph, 25 Ill. 107; Winter v. Union Pkg. Co., 93 Pac. 930; Harkness v.
Hyde, 98 U. S. 476; Walling v. Beers, 120 Mass. 548; Jones v. Jones, 2 Am. St. 447; Eberly
v. Moore, 24 How. 147; Wheelock v. Lee, 74 N. Y. 495; Higgins v. Beveridge, 55 Minn.
Beveridge, 55 Minn. 285; Shubbock v. Cleveland, 5 Am. St. 865; Merrill v. Houghton, 51 N.
H. 61; Cleghorn v. Waterman, 16 Neb. 226; Bailey v. Schrader, 34 Black (Ind.) 260;
Sommers v. Sommers, 16 Bradwell (Ill. App.) 77; Sutherland Code P. & P., vol. 1, sec. 1101,
p. 683.)
XIII. Where special appearance is sought for purpose of attacking jurisdiction of the
subject of the action, permission of court should be first obtainednot only as a matter of
good practice, but on principle. (1 Dan. Chan. Prac., star p. 538; Wright v. Boynton, 72 Am.
Dec. 320.)
XIV. Provisions of section 3594 as to what shall constitute appearance held in California
to be exclusive; hence any other form of appearance necessary not general but special.
(Voorman v. Li Po Tai, 113 Cal. 302; Powers v. Braley, 75 Cal. 237.)
XV. Even if the authorities were not abundant justifying a special appearance for the
purpose of attacking jurisdiction of subject of action, such right would surely arise under the
liberal provisions of Comp. Laws, 506, in view of the sui generis character of the action both
as to jurisdiction and service upon nonresidents.
XVI. It should be borne in mind that a very different rule prevails where the special
appearance is for the purpose of challenging the jurisdiction of the person of the defendant
from that recognized where the challenge is directed to the jurisdiction of the subject of the
action. Also there is good reason for differentiating the special appearance of one out of the
state constructively served from that of one within the state personally served in this sui
generis class of cases where such special appearance is for the sole purpose of challenging
jurisdiction of the subject of the action.
XVII. Remains then the sole question: Did the action of the district court in this case
amount to the denial to the defendant of a right to which he is entitled as a matter of law, viz:
the right to have his challenge to the jurisdiction of the subject of the action entertained and
determined prior to joinder of issue upon the merits? If the action of the district court
amounted to that, or was tantamount to that, then he has been denied a legal right,
whatever the form of his application or the nature of the court's decision.
was tantamount to that, then he has been denied a legal right, whatever the form of his
application or the nature of the court's decision.
It boots nothing to say that this application for a writ is premature because the petitioner
has not tendered his plea for filing and been refused; or that this court in granting the writ
would be reversing a decision of the court below.
The application below was for permission to appear specially for the purposes of the plea.
The court's decision was to the effect that the defendant could not appear specially for that or
any other purpose. The effect of the decision was to deny the defendant the right to challenge
the court's jurisdiction of the subject-matter before issue upon the merits.
The plea in abatement could not have been filed in connection with a special appearance
after that decision; and if it had been so filed, if it had not amounted to a contempt,
permission therefor having been denied, it would have been a useless thing to do when it
appears certain from the court's decision that it would have been stricken upon motion.
(Gamble v. District Court, 27 Nev. 233.)
And here, too, the latitude of the rule of Comp. Laws, 506, should prevail, if it should be
necessary to invoke it, to the end that substantial justice may be attained, in that petitioner
has made an effort in good faith and with all proper regard for the rights of both the court and
the adverse party to exercise what he claims to be a plain legal right. No technical objection
to the issuance of the writ should be regarded if the right be his in law and the action of the
court was tantamount to a denial of it.
XVIII. A writ of mandate will issue to compel the performance of an act which the law
enjoins, or to compel the admission of a party to a right to which he is entitled. (Comp. Laws,
3542.)
The writ will not run to compel an inferior tribunal how to act, but will run to compel it in
this case to entertain the challenge to jurisdiction and determine the question of the bona
fides of plaintiff's residence involved therein on the basis of a special appearance.
tain the challenge to jurisdiction and determine the question of the bona fides of plaintiff's
residence involved therein on the basis of a special appearance. (Treadway v. Wright, 4 Nev.
119; Cavanaugh v. Wright, 2 Nev. 166; State v. Murphy, 22 Nev. 77; State v. Murphy, 19
Nev. 89-94; Floral Spring Water Co. v. Rives, 14 Nev. 431; State v. Wright, 10 Nev.
167-175; note, 98 Am. St. Rep. 890; Wright v. Mesnard, 63 N. W. 1000; Pros. Atty. v. Rec.
Court (Mich.), 26 N. W. 694: Brown v. Cir. Judge (Mich.), 42 N. W. 826.)
Boyd & Salisbury (Horatio Alling, of counsel), for Respondents.
By the Court, Norcross, C. J.:
An action for divorce was instituted by Margaret E. McKim, as plaintiff, against Smith H.
McKim, as defendant, in the Second Judicial District Court of the State of Nevada, in and for
the County of Washoe, before Honorable W. H. A. Pike, district judge. The said defendant,
petitioner herein, through his attorney, James Glynn, served notice upon the plaintiff,
Margaret E. McKim, that upon a time certain he would move the said district court for an
order permitting him to appear specially in the action for the purposes of filing a plea in
abatement, raising the question of the jurisdiction of the said district court to try the action for
divorce, upon the ground that the plaintiff, the said Margaret E. McKim, was not at the time
of the filing of her complaint, nor for six months immediately prior thereto, nor at all, a bona
fide resident of the said county of Washoe or of the State of Nevada, as alleged in her
complaint. The motion came on regularly to be heard and was denied by the court.
The said defendant has instituted this original proceeding in this court and prayed for an
order requiring the respondent to appear and show cause why the plaintiff should not be
permitted to file his said plea in abatement, and to appear specially for such purpose; and
further, that the said district court be restrained from rendering a default in said action against
said defendant, and from proceeding further to try the said action upon the merits thereof,
or to render any judgment therein upon the merits, until the further order of this court.
proceeding further to try the said action upon the merits thereof, or to render any judgment
therein upon the merits, until the further order of this court.
It is not entirely clear from the face of the petition whether counsel regards this proceeding
as one in mandamus to compel the trial court to permit him to appear specially and to file his
plea in abatement, or one in prohibition to prohibit the court from further proceeding, until
the defendant is permitted to file such plea. We think it may seriously be questioned whether
the proceeding in this court may be regarded as an application for either of such writs. The
petition, however, presents a question of considerable importance and we prefer to determine
it upon the merits, rather than upon a mere technicality of procedure.
Our civil practice act provides:
Sec. 37. All the forms of pleadings in civil actions, and the rules by which the sufficiency
of the pleadings shall be determined, shall be those prescribed in this act. (Comp. Laws,
3132.)
Sec. 39. The only pleadings on the part of the plaintiff shall be the complaint, or demurrer
to the defendant's answer; and the only pleadings on the part of the defendant shall be the
demurrer, or the answer. (Comp. Laws, 3133.)
Section 40 of the civil practice act (Comp. Laws, 3135) enumerates the grounds of
demurrer to the complaint.
Section 44 of the act (Comp. Laws, 3139) provides: When any of the matters enumerated
in section forty do not appear upon the face of the complaint, the objection may be taken by
answer.
Our practice act does not permit the filing of a plea in abatement as a pleading separate or
distinct from the answer. Matters in abatement or in bar may only be set up in the answer.
Bliss on Code Pleadings, 345, says: In common-law pleadings we have the rule that
pleas must be pleaded in due order'; that is, the dilatory pleas must be first made and
disposed of, to be followed by pleas in bar.
The code requires the defendant either to demur or answer, and in his answer he is allowed to
set up as many defenses as he may have. Only one answer is contemplated, and all the
defenses which he elects to make must be embraced within it. Matter in abatement is as much
a defense to the pending action as matter in bar, and to say that the defendant may reserve the
latter until a trial shall have been had upon the issues in regard to the former would
interpolate what is not in the statutewould be inconsistent with its plain and simple
requirements.
Sutherland on Code Pleadings, vol. 1, sec. 459, says: Pleas, by that name, are unknown to
the code. The only pleadings, on the part of the defendant, are demurrer and answer. * * *
See, also, Preston v. Culbertson, 58 Cal. 198; Wells v. Patton, 50 Kan. 732, 33 Pac. 15.
The defendant, petitioner herein, may set up in his answer such defenses to plaintiff's
alleged cause of action as he may have. It is well settled in states having a code procedure like
ours, that the defendant only has two pleadings, a demurrer to the complaint, and an answer.
Where the answer raises a question which is preliminary to the right of the court to determine
the merits of the action, the better procedure would be for the trial court to determine it first
before proceeding to consider the issues which go to the real merits of the action.
It is the duty of courts in divorce proceedings to see that the proof of residence is clear and
convincing, and that a fraud is not being perpetrated upon the court. (Phillips v. Welch, 11
Nev. 187.) Having attempted to attack the validity of the plaintiff's residence, although in a
manner not recognized by our procedure, the trial court will doubtless permit the defendant a
reasonable opportunity to file an answer in the case. A question as to the sufficiency of the
evidence to establish residence upon the part of the complainant in a divorce proceeding must
be taken by appeal, and not by original proceeding.
(People v. Surrogate's Court, 36 Hun, 218; People v. Surrogate of Putnam, 16 Abb. N. C.
241; Preston v. Trust Co., 94 Ky. 295, 22 S. W. 318; State v. Superior Court, 11 Wash. 111,
39 Pac. 818.)
This proceeding is dismissed.
____________
33 Nev. 53, 53 (1910) Bancroft v. Pike
[No. 1902]
W. H. BANCROFT, Petitioner, v. W. H. A. PIKE, District Judge of the Second Judicial
District Court of the State of Nevada, in and for Washoe County, Respondent.
1. Appeal and ErrorJudgments ReviewableOrder of DismissalAppeal from Justice's Court.
Since an order dismissing an appeal from a justice's court, whether erroneous or not, would be within
the jurisdiction of the district court, it could not be reviewed by the supreme court by certiorari; being a
final determination of the appeal.
2. Justices of the PeaceAppealDisposition.
The district court may either dismiss an appeal from a justice's court, or may try the case de novo, but
cannot refuse to do either, so that if the justice's court had jurisdiction to enter its judgment, the district
court could not on appeal to it remand the case and compel the justice's court to again assume
jurisdiction.
3. Justices of the PeaceAppealDismissalWant of Jurisdiction of Trial Court.
If a justice's court did not acquire jurisdiction of defendant's person, the district court would not have
jurisdiction of an appeal from its judgment, and should dismiss the appeal.
4. Justices of the PeaceGeneral Appearance.
The answer of a defendant in an action before a justice's court stated that defendant objected that no
copy of the complaint was served upon him, and prayed that service of summons be set aside as void, and
further stated that defendant, without waiving his objection to want of service of a copy of the complaint,
for answer thereto denied each allegation thereof. Held, that the justice's court acquired jurisdiction of
defendant's person.
Original proceeding. Application for certiorari by W. H. Bancroft against W. H. A. Pike,
District Judge of the Second Judicial District of the State of Nevada, Washoe County, to
review an order made by such court remanding a cause to a justice's court.
Washoe County, to review an order made by such court remanding a cause to a justice's court.
Order annulled.
Mack & Green, for Petitioner:
This case now presents the following points for determination:
1. Was the service sufficient in the justice's court?
2. If the service was insufficient, was the appearance of the defendant special or general,
and was jurisdiction conferred upon the lower court to try the case on its merits?
3. After having submitted the case to trial in the justice's court, and judgment having been
rendered against the defendant and appellant, could he on appeal make the same objection to
the alleged want of sufficient service?
4. What were the duties of the appellate court and did the appellate court exceed its
jurisdiction in remanding the case to the justice's court for further trial?
5. Will a writ of certiorari lie in this case?
I. This petitioner contends that the service of process was entirely regular and in
conformity with the statutory provision for the service of summons in justice's court as found
in the session laws for 1907, on pages 27, 28, 29, being an act amending sections 516, 517,
518 of an act entitled An act to regulate proceedings in civil cases in the courts of justice of
this state, and to repeal all other acts in relation thereto, approved March 18, 1869. Nowhere
in this act as amended does it refer to the service of a copy of the complaint excepting in the
fourth division of section 517. That division expressly relates to the publication of summons
in a newspaper to be designated by the justice. That section provides that: In case of
publication where the residence of the nonresident or absent defendant is known, the justice
shall also direct a copy of the summons and complaint to be deposited in the postoffice,
postage prepaid, directed to the person or corporation to be served, at the residence of such
person or place of business of such corporation. When publication is ordered, personal
service of a copy of the summons and complaint out of the state shall be equivalent to
publication and deposit in the postoffice.
publication is ordered, personal service of a copy of the summons and complaint out of the
state shall be equivalent to publication and deposit in the postoffice. A copy of the complaint
shall also be served with the copy of the summons upon each of the defendants.
It will be noticed that this section says the justice shall also direct a copy of the summons
and complaint, and makes it mandatory in this instance only. The last sentence of this
section refers only where publication is ordered.
Section 518 provides by whom the summons may be served and the various ways in which
it may be served in different cases. In each of the four subdivisions of said section it expressly
states that service of summons shall be made by a delivery of a copy of the summons to the
___, no mention being here made of a copy of the complaint. The first section says:
First: If the action be against a corporation, by a delivery of a copy to the president. * * *
Second: If against a minor under the age of fourteen years, by a delivery of a copy to such
minor, and also to his father. * * *
Third: If against a person judicially declared to be of unsound mind, * * * by delivery of a
copy to such guardian.
Fourth: In all other cases, by delivery of the copy to the defendant personally.
The plaintiff has complied with the requirements of this section. Comp. Laws, 3124,
regarding service of summons for district courts, provides specifically that a copy of the
complaint be attached to the copy of the summons. This does not apply to justices' courts.
As shown above, in discussing session laws for 1907, pages 27, 28, 29, no mention is
made regarding the service of a copy of the complaint, except in division 4 of section 517, as
amended, which relates expressly to service by publication in a newspaper. Consequently the
service of a copy of the complaint is not required in the justice's court.
Section 3625 of Cutting's Compiled Laws of Nevada of 1900 provides that oral complaints
may be made before a justice of the peace who shall enter them in his docket. This same
section provides that: Pleadings shall not be required to be in any particular form, but shall
be such as to enable a person of common understanding to know what is intended.
Section 3625, Cutting's Compiled Laws, 1900, provides: When the cause of action or
counterclaim arises upon an account or instrument for the payment of money only, it shall be
sufficient for the party to deliver a copy of the account or instrument to the court, and to state
that there is due to him thereupon from the adverse party a specified sum which he claims to
recover or set off. The court may at the time of the pleading require that the original account
or instrument be exhibited to the inspection of the adverse party, and a copy to be furnished,
or if it be not so exhibited and a copy furnished, may prohibit its being afterwards given in
evidence.
From this section it will be seen that the court may, in its discretion, order a copy to be
furnished, and unless such order is made no copy need be furnished. In case an oral complaint
be filed, it would be impossible and ridiculous to attempt to make service with a copy of such
complaint. Jurisdiction of a defendant is acquired by the service of a summons in a civil
action, and therefore the court will have control of all subsequent proceedings. Section 3130
of Comp. Laws, 1900, provides that: From the time of the service of the summons in a civil
action, the court shall be deemed to have acquired jurisdiction, and to have control of all the
subsequent proceedings. A voluntary appearance of a defendant shall be equivalent to
personal service of the summons upon him.
In a justice's court pleadings are to be liberally construed, and though informal they are
sufficient if they fairly apprise the defendant of the claim made against him. The sufficiency
of the pleadings in a justice's court is not to be tested by the same rules as are applied in
higher courts.
In this case the summons was duly and regularly issued and the defendant was fully
apprised of the claim.
In the case of Martin v. District Court, 13 Nev. 88, this court said: The sufficiency of
pleadings in justices' courts is not to be tested by the rules that are applied in the higher
courts. The statute makes the copy of an account a sufficient complaint in justices' courts.
In the case of Costello v. Ten Eyck, 24 Am. St. Rep. 131, the court said: Declarations in
justices' courts are to be liberally construed, and though informal, where they fairly apprise
the defendant of the claim made against him, may be held sufficient (citing cases).
In the case of People v. Wait, 99 N. Y. Supp. 808, the court said: It is not necessary,
however, in this action to determine whether the complaint as originally filed brought the
case within the jurisdiction of the justice. He clearly acquired jurisdiction of the person of the
defendant by the personal service of the summons upon him within his county, and the
defendant appeared in court in pursuance of such service.
In the case of Little v. Currie, 5 Nev. 92, this court said: Suit is commenced before the
justice by the filing a copy of the note, etc., and the issuance of a summons thereon.'
II. If the service was insufficient, was the appearance of the defendant special or general,
and was jurisdiction conferred upon the lower court to try the case on its merits?
The defendant objected to the service and answered at the same time. By filing an answer
the defendant joined issue, and made a general appearance, regardless of the objection.
Immediately after the overruling of the objection by the justice of said court the defendant
went to trial and offered all of his testimony to the jury, thereby waiving any objections which
he may have made or any exceptions he may have made to the ruling of such justice and
made a general appearance for the defense of this suit.
Regardless of the fact that the defendant may appear specially to object to the service of
the process, if, on the overruling of the objection, he proceeds to trial, he invokes the
power of the court for a purpose other than the quashing of the service of process.
specially to object to the service of the process, if, on the overruling of the objection, he
proceeds to trial, he invokes the power of the court for a purpose other than the quashing of
the service of process. The defects are waived and his appearance is general. By making a
general appearance he submitted to the jurisdiction of the lower court, and upon proceeding
with the trial and offering his testimony to the jury, gave jurisdiction to the court.
In the case of Golden v. Murphy, 31 Nev. 419, Chief Justice Norcross said: It is
contended by counsel for appellant that the court never acquired jurisdiction over the
defendant the Royal Mining Company, and hence that the judgment is void as based against
such defendant. This contention is based upon the fact that such defendant is a foreign
corporation, and that no valid service of process was had upon it. It appears that this
defendant did not have an agent residing in the state, and that service was made upon the
secretary of state, under a provision of our statute relative to service of foreign corporations
doing business in this state, and which have not a resident agent upon whom process may be
served. It appears that this company appeared specially to quash the service of summons. This
motion was denied, after which the company filed an answer to the complaint and
participated in the trial, but sought to reserve the question of service. We think by answering
to the merits the defendant waived any question of service, and that it could not at the same
time answer and reserve a question of jurisdiction based upon a matter of service of process.
(Curtis v. McCullough, 3 Nev. 202; Higley v. Pollock, 21 Nev. 196; Comp. Laws, 3594.)
In the case of Sweeney v. Schultes, 19 Nev. 54, this court said: The defendants were
personally served with summons. They appeared specially and separately moved the court to
set aside the summons, on the ground that it did not contain the notice required by section 26
of the civil practice act. The motions were denied and time was given defendants to appear
and answer. They appeared within the time given, and filed a joint demurrer to the
complaint, it being therein stated that it was interposed 'without waiving any rights they,
or either of them, may have under or by virtue of his separate notice of motion to set
aside the summons issued and served in this case, and the order and ruling of the court
made thereon.' The demurrer was overruled, and the defendants were given further time
to answer.
appeared within the time given, and filed a joint demurrer to the complaint, it being therein
stated that it was interposed without waiving any rights they, or either of them, may have
under or by virtue of his separate notice of motion to set aside the summons issued and served
in this case, and the order and ruling of the court made thereon.' The demurrer was overruled,
and the defendants were given further time to answer. They failed to file an answer within the
time given, and their default was duly noted by the clerk. Thereafter, on the same day, they
appeared and filed an answer, making therein same reservation of their rights as contained in
their demurrer. The plaintiff subsequently had the case set for trial, introduced his proofs, and
obtained judgment for the possession of the property, and for $1,500 damages. This appeal is
taken from the judgment.
The object of a summons is to put the defendant upon notice of the demand against him,
and to bring him into court at the time therein specified. If the defendants relied upon the
irregularity in the notice, they ought not to have made any further appearance. When they
accepted the time given to answer, and then filed a demurrer, which raised an issue in the
case, it was a general appearance in the action, notwithstanding the words of reservation
contained in the demurrer (1 Comp. L. 1560). After this appearance the court had jurisdiction
to proceed and grant any relief to which the plaintiff was entitled, regardless of the mistake in
the form of the notice inserted in the summons. The summons had served its purpose and
spent its force when the demurrer was filed, and hence the error in the notice of the summons,
and the ruling of the court thereon, became immaterial and harmless, and, as it could not have
prejudiced the defendants, it must be disregarded. (Lake v. Lake, 16 Nev. 366.)
The action of the court in overruling the defendant's motion did not in any manner affect
the case after the filing of the demurrer. All subsequent proceedings were based upon the
complaint alone. Had the motion to set aside the summons been granted, the only effect
would have been to deprive the plaintiff of his right to collect costs for the service of the
summons, and to delay proceedings in the case until another summons could be served.
aside the summons been granted, the only effect would have been to deprive the plaintiff of
his right to collect costs for the service of the summons, and to delay proceedings in the case
until another summons could be served. The delay that would have been gained by having the
motion sustained was obtained by the time subsequently given to file the demurrer and
answer. Having generally appeared in the action, the error in the ruling of the court denying
the motions became harmless, and worked no substantial injury to the defendants.
In Curtis v. McCullough, 3 Nev. 210, this court said: There is no other authority by which
those tribunals can obtain jurisdiction of the citizen, except by his own consent or voluntary
submission to their jurisdiction. However, after such jurisdiction is once obtained, whether by
legal process or by the voluntary acknowledgment of the authority of the court to determine
his rights, the jurisdiction over the person is complete for all the purposes of that proceeding,
provided the tribunal has jurisdiction of the subject-matter. Or he could have appeared
specially for the purpose of setting aside the defective writ, without acknowledging the
jurisdiction of the court; for by appearing to object to the jurisdiction over him, it could not
be said that he thereby acknowledged such jurisdiction. But instead of pursuing one of these
methods, the defendant chose to appear in the proceeding, not for the purpose of objecting to
the jurisdiction of the court, but to ask for its affirmative action in his favor, after a full
acknowledgment of its jurisdiction over him. An objection to the form of process cannot be
taken after pleading to the merits of the action in which it is issued, simply because filing the
answer is an acknowledgment of the jurisdiction of the court, and when it is done the process
to all intents and purposes becomes functus officio.
In Higley v. Pollock, 21 Nev. 203, the court said: The principal object of a 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.
process. It has become functus officio. All subsequent proceedings are based upon the
complaint.
Section 3594, Comp. Laws, provides: A defendant shall be deemed to appear in an action
where he answers, demurs, or gives the plaintiff written notice of his appearance, or when an
attorney gives notice of appearance for him.
In Security Co. v. Boston Co., 126 Cal. 418, it was decided that if a party defendant wishes
to insist upon the objection that he is not in court for want of jurisdiction over his person, he
must specially appear for that purpose only, and must keep out for all purposes except to
make that objection. If he raises any other question, or asks for any relief, which can only be
granted upon the hypothesis that the court has jurisdiction of his person, his appearance is
general, though termed special, and he thereby submits to the jurisdiction of the court as
completely as if he had been regularly served with summons.
In In re Clarke, 125 Cal. 388, the court said: On general principles, a statement that a
defendant or party makes a special appearance is of no consequence whatever. If he appears
and objects only to the consideration of the case, or to any procedure in it, because the court
has not acquired jurisdiction of the person of the defendant, the appearance is special, and no
statement to that effect in the notice or motion is required or could have any effect if made.
On the other hand, if he appears and asks for any relief which could only be given to a party
in a pending case, or which would be a regular proceeding in the case, it is a general
appearance, no matter how carefully or expressly it may be stated that the appearance is
special. It is the character of the relief asked, and not the intention of the party that it shall or
shall not constitute a general appearance, which is material.
As a rule one cannot avail himself of the advantage of being a party and escape the
responsibilities. Some early cases in this state (Deidesheimer v. Brown, 8 Cal. 340, and
Lyman v. Milton, 44 Cal. 631) seem to hold that a defendant having first objected to the
process or service by which he was brought in, may then, if his objections are overruled,
answer to the merits, and on appeal from the judgment still avail himself of his objections
to the jurisdiction of the court over him.
a defendant having first objected to the process or service by which he was brought in, may
then, if his objections are overruled, answer to the merits, and on appeal from the judgment
still avail himself of his objections to the jurisdiction of the court over him. This rule seems
unjust and illogical, and I think does not prevail elsewhere. It gives the defendant, whose
objections to the jurisdiction of the court have been erroneously overruled, an opportunity to
go to trial, and if the judgment is favorable to abide by it, while if it is unfavorable he can
procure a reversal. The plaintiff would have no such advantage. And what would be the
condition of such a defendant after reversal? If the reversal means that he is not yet in the
case, he may move to dismiss under section 581. If it merely gives him a new trial, the
procedure seems farcical.
In this case, by his first appearance, Clarke asked favors which could be demanded only
by a party to the record, and, upon his motion being denied, he demurred to the petition upon
nearly all the statutory grounds. He also filed an answer, which raised issues of fact, upon
which a trial was had and findings were filed. Certainly by these proceedings he submitted
himself to the jurisdiction of the court.
In the case of Desmond v. Superior Court of S. F., 59 Cal. 274, the court said: This is an
application for a writ of review. An action was commenced in a justice's court against the
petitioners herein, and a summons issued, which they claimed to have been defective. They
moved in that court to set aside the service and vacate the summons, which motion was
denied. They then answered, the case was tried, and judgment rendered against them. They
appealed to the superior court on questions of law and fact, where the motion to vacate and
set aside was again made and again denied. A trial was then had in the superior court and
judgment went against the defendant.
It is claimed that we can review these proceedings, upon the ground that the superior
court exceeded its jurisdiction in denying defendants' motion.
jurisdiction in denying defendants' motion. If it was an error, which we do not admit, it was
not an error in excess of its jurisdiction; it had jurisdiction to determine whether or not the
motion should be granted. It is sufficient in this case to say that the defendants, by pleading to
the merits of the case, waived any objection they might have had to the alleged defect in the
process and its service. Writ denied and proceedings herein dismissed.
In the case of Sears v. Starbird, 78 Cal. 225, the court said: Conceding that the summons
was defective, which is by no means clear, the defendant, by pleading to the merits, waived
his objection to all defects therein. (Citing Desmond v. Superior Court, 59 Cal. 274.)
When a special appearance is converted into a general one, vol. 2, Encyclopedia of
Pleading and Practice, 625: The principle to be extracted from the decisions on the subject
as to when a special opinion is converted into a general one, is, that where the defendant
appears and asks some relief which can only be granted on the hypothesis that the court has
jurisdiction of the cause and the person, it is a submission to the jurisdiction of the court as
completely as if he had been regularly served with process, whether such an appearance, by
its terms, be limited to a special purpose or not. Where a party appears in court and objects by
motion to the jurisdiction of the court over his person, he must state specifically the grounds
of objection; by not so stating them his appearance will be construed a general one, although
he moves to dismiss on that ground.
In Baker v. Union Stockyards National Bank, 89 N. W. 269 (syllabus by court): If a
defendant claims that the court has acquired no jurisdiction over his person, by reason of
defects or irregularities in the process or service thereof, his course is by special appearance
and objections to the jurisdiction, and if he goes further, and enters a general appearance, or
invokes the powers of the court for any other purpose than quashing the pretended process, or
service thereof, the defects are waived.
In Sealey v. California Lumber Co., 24 Pac. 197 (syllabus by court): A defendant cannot
answer and make a full defense on the merits, without making a general appearance in spite
of his special appearance; and when he does so he invokes the judgment of the court and
submits himself and his rights to its jurisdiction and can no longer be heard to say that it had
no jurisdiction.
In Fitterling v. Missouri Pac. Ry., 79 Mo. 504: Defendant, by appearing before a justice
and introducing evidence after the denial of his motion to dismiss the suit, waives defective
service and confers jurisdiction of his person on the court.
In Union Pacific Ry. v. De Busk, 20 Pac. (Colo.) 752: The early decisions in this state
have been uniform to the effect that by a general voluntary appearance all objections to the
summons and return thereof, and to the jurisdiction of the court over the person of the
defendant, are waived; and that the filing of a demurrer or answer to the complaint constitutes
such an appearance. (Cases cited.)
In giving the opinion in Hobson v. New Mexico & A. R. Co., 11 Pac. 545 (Ariz.), Justice
Porter said:
The defendant appeared specially, and moved to set aside the service of summons
because the transcript does not show any order made on said motion. Therefore, for ought we
know, the defendant may have abandoned his motion and made a voluntary appearance. The
defendant filed a demurrer, setting forth not waiving, nor intending to waive, its rights to be
heard on the motion already noticed, and now pending, to vacate the summons,' etc. It may
have been waived on the overruling of the demurrer. An answer was filed after the demurrer
was overruled, and no mention there made of special appearance. The party having answered,
and having had his day in court, should not be allowed to reverse all the proceedings because
of this irregularity of service.
It is a general rule now prevailing in the courts, that wherever and whenever substantial
justice is secured, a mere technical error, which is harmless in its character, and which has
worked no injury, will not be permitted to defeat or annul the final conclusion or
consummation of judicial proceedings."
mere technical error, which is harmless in its character, and which has worked no injury, will
not be permitted to defeat or annul the final conclusion or consummation of judicial
proceedings.
In Layne v. Ohio R. Co., 14 S. E. (W. Va.) 123, the court decided: In order to take
advantage of such defect in the summons or return, the defendant must appear for that
purpose only, and must so state in submitting the motion. If he appears generally, whether to
move a continuance or for any other purpose, he will be regarded as having waived all defects
in the writ or the return.
If in the justice's court the defendant appears and submits two motions simultaneously,
one for a continuance, and one to quash the return on the writ, and at a subsequent day, to
which the case has been continued, he appears and, without requiring the justice to act upon
his motion to quash, files an informal plea in bar, and proceeds to trial, he will be deemed to
have waived his objection to the writ.
A defendant who has waived all objection to the summons and return in the justice's
court, by appearing there and submitting to a trial, cannot on appeal to the circuit court, take
advantage of any defect in the writ or return, either by motion to quash or by plea in
abatement. (Syllabus by court.)
See also 3 Cyc. 504-507, and cases cited.
III. After having submitted the case to trial in the justice's court, and judgment having been
rendered against the defendant and appellant, could he, on appeal, make the same objection to
the alleged want of sufficient service?
In proceeding with the trial of the case upon its merits, the defendant and appellant
submitted his rights to adjudication by the court. When the verdict was rendered, judgment
was entered and the rights of the parties were determined thereby. The fact that the defendant
submitted to trial waived all objections and exceptions which he may have made to the
jurisdiction of the court. As far as the justice's court was concerned, the case was determined,
and if the defendant was dissatisfied with the verdict his further rights lay in appeal to the
district court, to be there again determined on the merits of the case.
the verdict his further rights lay in appeal to the district court, to be there again determined on
the merits of the case. When the case is appealed upon both questions of law and fact by a
defendant from a judgment of a justice of the peace to the district court, the defendant cannot
deny the jurisdiction of the district court over his person, even if the justice of the peace, who
rendered the judgment appealed from, may not have had jurisdiction over his person.
If the defendant, on appeal, be again permitted to make an objection to the jurisdiction of
the lower court, he would be permitted to secure a reversal of a verdict unfavorable to him,
while if it had been favorable to him he could have abided by it. The plaintiff would have had
no such advantage.
When a party appeals, the taking of the appeal is the same as an appearance, and the
appellate court is thereby given jurisdiction over the person, whether the service or the
process before the lower court was sufficient for that purpose or not, therefore the appellate
court can take no cognizance as to the jurisdiction of the lower court in that case. The
defendant cannot invoke the jurisdiction of a court for the purpose of a retrial upon the merits,
and then question the jurisdiction of the court with respect to his person. See In re Clarke
(cited under subdivision II), 125 Cal. 388; Layne v. Ohio Ry. Co. (cited under subdivision II),
14 S. E. 123.
In the case of Whitting v. St. Louis Ry. Co., 20 Am. St. Rep. 636, the court said: In the
circuit court the defendant moved to dismiss the cause, because the justice had no jurisdiction
over the person of the defendant, and hence the circuit court had no jurisdiction. The only
specific reason assigned in the motion is, that a copy of the complaint filed before the justice
was not served on the defendant. It does not appear by the constable's return that he served
the defendant with a copy of the complaint, as seems to be provided for by section 2865 of
Revised Statutes, 1879, as amended by the act of March, 1883; Acts of 1883, p. 104. The
defendant, however, by suing out an appeal, waived all errors and defects in the original
summons, and in the service thereof, and for this reason the motion to dismiss was
properly overruled."
ever, by suing out an appeal, waived all errors and defects in the original summons, and in the
service thereof, and for this reason the motion to dismiss was properly overruled.
In the case of Smith v. District Court of Arapahoe County, 4 Colo. 235, the court said:
Having once submit-themselves to the jurisdiction of the court, they could not again
challenge it at pleasure. To permit it would be trifling with courts and the rights of parties.
Trial de novo on appeal, 2 Encyclopedia of Pleading and Practice, p. 614: And where the
object of an appeal is to try the case anew in the appellate court on its merits, and not to
review errors, the taking of an appeal is equivalent to an appearance and gives the appellate
court jurisdiction over the person, whether the service of the process before the inferior court
was sufficient for that purpose or not. (Cases cited.)
In Malone v. Clarke, 2 Hill, 655, 15 N. Y. Com. Law Rep. 487, the court said: The
subject-matter of the suit was promises alleged to have been broken. It required no
proceeding to give the justice jurisdiction of that. But if there had been a want of jurisdiction
in this respect, as if the subject-matter had been slander or assault and battery, the course was
not to render any judgment at all. The court should have simply refused to proceed with the
cause, and dismissed it from their consideration. If the justice had no jurisdiction in this
respect, the C. P. had none. But the question was not one of jurisdiction over the
subject-matter. The C. P. acted on an objection that there was no jurisdiction of the
defendant's person. In general, such a question can be determined by certiorari only. The
office of an appeal is to try the merits, and assumes that the parties were properly in court.
In Rohrbough v. United States Express Co., 88 Am. St. Rep. 849, the court said: In
Weimer v. Rector, 43 W. Va. 735, 28 S. E. 716, this court holds that a misnomer in a justice's
summons is amendable, and is waived and cured by appearance and appealed in the action. In
Thorne v. Thorne, 47 W. Va. 4, 34 S. E. 759, this court decided that 'an appeal by a party to
a cause in a justice's court operates as an appearance, and, as a general rule, the
irregularities in the proceedings before the justice are waived by an appeal.'"
decided that an appeal by a party to a cause in a justice's court operates as an appearance,
and, as a general rule, the irregularities in the proceedings before the justice are waived by an
appeal.'
In the case of Seurer v. Horst, 18 N. W. 283, the summons did not comply with the statute
and was void. In this case the court said: The justice should have dismissed the action upon
the defendant's motion. But after trial before the justice the defendant appealed upon
questions of fact to the municipal court. He thereby waived the objection that he was not
within the jurisdiction of the court. The effect of such an appeal was to invoke an
adjudication by the municipal court upon the merits of the case as presented by the pleadings.
The defendant might not thus bring the case into the municipal court for the very purpose of a
retrial upon the merits, and then be heard to question the jurisdiction of the court with respect
to himself.
In the case of Toledo & W. R. Co. v. Talbert, 23 Ind. 438, the court said: Where in a suit
brought in a justice's court, the defendant makes a special appearance and moves that the case
be dismissed on the ground of insufficient service, and the justice overrules the motion, but
continues the cause for twenty-eight days, and the defendant is then in default he is not
entitled, on appeal to the circuit court and renewal of his motion, to have it granted; the
continuance giving him sufficient notice.
IV. What were the duties of the appellate court, and did the appellate court exceed its
jurisdiction in remanding the case to the justice's court for further trial?
Upon appeal of matters of both law and fact the appellate court cannot take into
consideration any matters regarding the jurisdiction of the justice's court.
When an appeal is perfected, jurisdiction in the justice's court ceases for any purpose
whatever and all proceedings must be thereafter had in the district court. The justice's court
has no more jurisdiction in the case.
Jurisdiction when once acknowledged is complete for all purposes. Jurisdiction in this case
was acknowledged in the lower court by filing an answer and going to trial and is complete
upon appeal.
in the lower court by filing an answer and going to trial and is complete upon appeal.
Reservation to an objection and exception is of no avail upon appeal.
This petitioner contends that the district court exceeded its jurisdiction in remanding the
case.
Section 3677, Comp. Laws, says: All causes appealed to the district court shall be tried
anew in said court and said court may regulate by rule the practice in such cases in all
respects not provided for by statute.
This section specifically provides that the case must be tried anew and to try the case anew
it must be tried upon its merits. There are no rules regulating the practice other than those
provided for by the statute. The district court, which is the appellate court, must try the case
de novo and cannot dismiss or remand it. In no instance can the district court sitting as a court
of appellate jurisdiction, without trial, reverse or affirm a judgment brought before it by
appeal from a justice's court.
The statute regarding the power of the supreme court in this state on appeal definitely
provides that the supreme court may reverse, affirm or modify the judgment or order appealed
from as to any or all of the parties, and may, if necessary, order a new trial or the place of trial
to be changed. The statute regarding the appellate jurisdiction of the district court makes no
such provision. It says: All causes appealed to the district court shall be tried anew in said
court.
From this it will be seen that the district court would have no power to dismiss or remand
the action, but must proceed with the trial anew.
Section 2515, Compiled Laws, 1900, relating to the appellate power of the supreme court,
says: This court may reverse, affirm, or modify the order or judgment appealed from as to
any or all of the parties, and may, if necessary, order a new trial, or the place of trial to be
changed. When the judgment or order appealed from is reversed or modified, this court may
make, or direct the inferior court to make, complete restitution of all property and rights lost
by the erroneous judgment or order.
In the case of The State of Nevada, ex rel. Thomas Barnett, Assignee, v. Fifth Judicial
District Court, 18 Nev. 286, the court said: After dismissing the appeal the court affirmed
the judgment rendered by the justice, with damages and costs. The appeal alone had given the
court jurisdiction of the case. By dismissing it, the court divested itself of authority to proceed
further, except to include costs on dismissal, and left the judgment of the justice in full force,
save as affected by the order staying proceedings. The review upon certiorari is confined to
the question of jurisdiction, and no other matter appearing in the record has been considered.
It is proper to state, however, that district courts are not authorized to impose damages for
frivolous appeals, nor to directly and without trial, reverse or affirm judgments brought by
appeal from justices' courts. Such cases must be tried anew. (Comp. Laws, 1643.)
In the case of Bullard v. McArdle, 35 Am. St. Rep. 176, the court said: By perfecting the
appeal from the justice's court the case was entirely removed from that court, and only the
superior court had thereafter jurisdiction in the matter. The judgment in the justice's court was
not merely suspended, but by the removal of the record was vacated and set aside. The
judgment upon which it was issued had been vacated by an appeal therefrom, which was
sufficient both in form and in substance to divest the justice's court of any further jurisdiction
over the case. The case was thereafter in the superior court, and the rights of the parties were
to be determined by the action of that court.
In the case of Martin v. District Court, 13 Nev. 85, the court said: All the district court
can do in a case appealed from a justice's court is to try it anew (Comp. Laws, 1643), and if
no sort of issue has been made or tried in the justice's court, there is nothing to be tried anew.
(10 Cal. 19.) These decisions were approved by Judge Brosnan (1 Nev. 96), and his decision
has only been so far qualified as to hold that an appeal lies to this court from a judgment by
default in the district court upon the question whether the default has been properly
entered.
the default has been properly entered. But on appeal to the district court the case is different.
All the district court can do is to retry issues of law or fact that have been made in the justice's
court.
In the case of Coyle v. Baldwin, et al., 5 Cal. 75, the court said: The county court reversed
the judgment of the justice of the peace, on motion, upon the ground that it did not appear
that the defendants had notice of the trial. This was erroneous; the parties were in the county
court on appeal, for the purpose of trying the case de novo, and it was the duty of the court to
proceed with the trial on the merits of the case.
In the case of People v. Court of Eldorado, 10 Cal. 19, the court said: The county court
can only retry the issues tried in the court below. This is what is meant by a trial anew in the
county court, under section 626.
In the case of Acker v. Superior Court, 68 Cal. 245, the court said: The order remanding
the cause to the justice's court for further proceedings is in excess of the jurisdiction of the
court, and void. For, as the case was originally tried in the justice's court, and the appeal was
taken on questions of both law and fact,' appellate jurisdiction over the action attached to the
superior court, to try and determine the case anew. (Sec. 976, Code Civ. Proc.) In the exercise
of this jurisdiction the superior court cannot delegate its power over the action to any other
tribunal. It has no authority to remand the cause to the justice's court, whence it came, for trial
de novo. It must itself proceed with the trial and if it refuses it may be compelled to proceed
by mandamus.
V. Will a writ of certiorari lie in this case?
A writ of certiorari is a remedy proper in all cases where an inferior court has exceeded its
jurisdiction in the exercise of its judicial functions, and where there is no appeal or other
plain, speedy, and adequate remedy. A writ will lie where there is no adequate remedy by
which an erroneous determination can be reviewed or excess of jurisdiction can be restrained,
and will issue from a supreme court where that writ is necessary to prevent a failure of
justice.
prevent a failure of justice. A writ will lie where a district court has exceeded its jurisdiction
by dismissing or remanding a case, appealed from a justice's court to be tried anew upon
questions of both law and fact. A writ of certiorari lies also direct from the supreme court to
the justice's court.
Section 3531 of Cutting's Compiled Laws reads as follows: 3531. Sec. 436. This writ
may be granted on application by any court of this state, except a justice's, or recorder's or
mayor's court; the writ shall be granted in all cases when an inferior tribunal, board, or
officer, exercising judicial functions, had exceeded the jurisdiction of such tribunal, board, or
officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and
adequate remedy.
This section of the statute is construed by Justice Brosnan in Paul v. Armstrong, 1 Nev.
82, as remedial and designed for the purpose of keeping inferior tribunals and officers within
the limits of their powers and to correct in a speedy manner any abuse of such powers as may
be to the prejudice of others. It should receive such fair and reasonable interpretation as will
best secure these objects.
In the case of Paul v. Armstrong, 1 Nev. 82, the court said: The statute is remedial;
designed to confine inferior tribunals and officers within the prescribed limits of their powers,
and to correct in a speedy and economical manner any abuse of them that may prejudice
others. It should receive such fair and reasonable interpretation as will best secure these
objects.
The writ of certiorari is declared to be proper in all cases where an inferior tribunal
exercising judicial functions has exceeded its jurisdiction, and there is no appeal or other
plain, speedy and adequate remedy.' Like the other remedy referred to in the statute, the
appeal also must be adequate to the relief sought. Such a construction does no violence to the
language or spirit of this section.
An appeal through the means of which errors, though manifest, cannot be corrected,
would be a useless ceremony.
manifest, cannot be corrected, would be a useless ceremony. The law does not require vain
things to be done; it does not limit a suitor to a process that is fruitless when it furnishes one
that may prove available. But in this case an appeal to the probate court would not only be
ineffectual, but would not lie, in my opinion.
In the case of Hall v. Superior Court, 71 Cal. 550, the court said: The superior court of
Eldorado County had jurisdiction to hear and determine the case before it upon its merits, and
the arbitrary dismissal of it upon motion was an improper divestiture of its rightful
jurisdiction. Where such is the case, the writ of certiorari is a proper proceeding to annul the
order dismissing the appeal. (Levy v. Superior Court, 66 Cal. 292.)
The order of dismissal should be annulled, the cause reinstated, heard, and determined
upon its merits by the superior court of Eldorado County.
In the case of Carlson v. Superior Court, 70 Cal. 630, the court said: The appeal vested
the superior court with jurisdiction to hear and determine the question brought by the
statement on appeal within its jurisdiction by arbitrary ordering a dismissal of the appeal
sought to have been taken on questions of law and fact. Such a disposition of the case was in
excess of the jurisdiction of the court with reference to the matter on appeal.
J. B. Dixon, for Respondent:
The only question to be decided by this court on certiorari is: Did the respondent exceed
his jurisdiction in the disposition he made of the action of Bancroft v. Phenix, which came to
the district court by appeal from the justice's court? Not, did he correctly decide the points of
law involved? This is now practically admitted by counsel for petitioner and has been decided
so frequently and so recently by this court that no further argument seems necessary.
The defendant in that action had the legal right to make objection that no service had been
made on him of a copy of the complaint, that the justice court had acquired no jurisdiction of
his person and had no jurisdiction to proceed to a trial of the facts.
acquired no jurisdiction of his person and had no jurisdiction to proceed to a trial of the facts.
The justice of the peace ought to have sustained the objection. The statutes provide that the
justice shall enter motions and objections on his docket, and that in the district court either
party shall have the benefit of legal objections made in the justice's court. This gave the
defendant the right to renew his objection in the district court. If not, the provision would be
meaningless. The justice had a right to pass on the objection of the defendant, and in the
district court respondent had an equal right and jurisdiction to pass on the objection. He
certainly had jurisdiction to sustain the objection of defendant. His decision was absolutely
correct, as a matter of law, although it is entirely immaterial whether such was the case. There
cannot be any serious contention that the petitioner is entitled, in certiorari, to a review of
that part of the decision sustaining the objection of the defendant and holding that the justice
had no jurisdiction of the person of the defendant and that therefore the district court had no
jurisdiction and could not proceed to a trial of the facts. This was not exceeding jurisdiction,
but refusing jurisdiction, which refusal cannot be reviewed in this proceeding. In Peacock v.
Leonard, 8 Nev. 84, and in other cases, it has been held that a district court, on appeal, has
exactly the same jurisdiction as the justice. (Cooban v. Bryant, 36 Wis. 605, 612; Martin v.
District Court, 13 Nev. 89, 91.)
What was the legal effect of this decision?
It necessarily followed that the judgment of the justice's court for plaintiff was void and of
no effect, a mere nullity. Did the case for that reason, ipso facto, revert to the justice's court
for further proceedings? If this was the result, how could the direction or order of the
respondent remanding the case to the justice's court injure the petitioner? Certiorari is not
used to review or reverse a harmless error, if any error occurred. What benefit would
petitioner derive, if this court should hold that the writ of certiorari was properly issued? If
the direction or order of respondent remanding the case to the justice court, and returning
the files, had not been made, what would be the position of the petitioner?
or order of respondent remanding the case to the justice court, and returning the files, had not
been made, what would be the position of the petitioner? There must remain the decision or
order sustaining the defendant's objection, the ruling decision or order that neither the justice
court nor the district court had jurisdiction and the necessary consequence that the judgment
was void, for these were certainly within the jurisdiction of the district court, and cannot be
reviewed or vacated by either certiorari or mandamus. (See authorities cited in respondent's
brief on motion to dismiss.)
Volume 2, Spelling's Extraordinary Relief, sec. 1896, states the law as follows: It is a
general principle applying to certiorari, as to all other extraordinary remedies and
proceedings, that process will not issue where it would be without beneficial results. Sec.
1897 holds that the writ is not granted unless substantial injustice has been done. The
application of this principle prevents the granting of the writ to revise or correct erroneous
opinions, however hurtful they may be to the individual against whom they are expressed. An
order, judgment or determination affecting the rights of the prosecutor is necessary as a
foundation for the issuance of the writ. (Furbush v. Cunningham, 56 Me. 184; McPheeters
v. Morrill, 66 Me. 123.)
Petitioner claims that the case of Acker v. Superior Court, 68 Cal. 245, 9 Pac. 109, 10 Pac.
416, is an authority that respondent had no jurisdiction to remand the case to the justice court;
that case holding that the superior court had no power to remand the case to the justice's court
for a trial de novo. It must be noted that the facts and circumstances in that case were entirely
different from the case at bar. In that case the superior court ordered the judgment reversed,
and then the case was remanded for a trial de novo. There was no holding or decision that the
justice's court had no jurisdiction or that the superior court had none. In the case at bar the
respondent did not remand to the justice's court for a trial de novo (no purpose being
assigned). It was intended, by remanding, to aid the petitioner in such further proceedings
as he desired to take.
intended, by remanding, to aid the petitioner in such further proceedings as he desired to take.
The facts in the Acker case are so different that it is not in point. Again, this is a decision by a
division merely of the supreme court, and the decisions on which that case is based have
been, in effect, overruled by the cases of People v. County Court, 10 Cal. 19; Myrick v.
Superior Court, 68 Cal. 98, and by Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8, which
case made a radical change in the principles governing the California courts in certiorari, and
so overruled the principles and doctrines on which the Acker case was decided, and in so
doing overruled the Acker case. Counsel has been unable to find any subsequent case in
which the Acker decision has been cited. It is left much in the position of a case which is said
to be without either parent or progeny, and therefore entitled to little weight.
In Larne v. Gaskins, 5 Cal. 508, the justice of the peace certified a case to the district
court, instead of trying it. After a trial in the district court, there was an appeal to the supreme
court, which reversed the district court with instructions to remit the cause to the justice, who
refused to proceed to a trial, on the ground that the case having been once transferred to the
district court, the justice had lost all jurisdiction. This was held to be error and that the justice
had jurisdiction and must try the case.
In Myrick v. Superior Court, 68 Cal. 98, which is a decision in bank, confirming the
decision of commissioners, on appeal from the justice court taken on law and fact in which
the superior court reversed the decision and judgment of the justice court dismissing the
action on technical grounds, and then proceeded to a trial of the case on the issues of law and
fact, it was held that the superior court should have reversed the decision of the justice and
sent the case back to the justice's court for a trial of the issues tendered by the pleadings. It is
submitted that this case is more in point than Acker v. Superior Court. See also People v.
County Court, 10 Cal. 19, 20; S. P. R. R. Co. v. Superior Court, 59 Cal. 471; Martin v.
District Court, 13 Nev. S5, 90, 91; History Co. v.
Martin v. District Court, 13 Nev. 85, 90, 91; History Co. v. Light, 97 Cal. 56; Sherer v.
Superior Court, 59 Cal. 653.
In Elliott on Appellate Procedure, par. 20, the author says: It is not to be understood that
an express statutory provision is required to confer upon an appellate tribunal authority to
exercise auxiliary authority in aid of its appellate power, although such auxiliary authority
may be in its nature original, for all courts in the rank of appellate courts proper have such
general powers as are necessary to enable them to effectually exercise the jurisdiction
conferred upon them. And in par. 21: The general authority to review and revise necessarily
includes the right to enforce the writ and administer justice. In the exercise of its authority,
the appellate court may so mold its judgments as to secure the proper relief to the parties
entitled to it. The fact that a question may be presented in a particular mode does not always
restrict the appellate court to a particular course, for it may, on an inspection of the whole
record, pronounce such judgment as will secure justice to the parties.
In Bank v. Knoup, 6 Ohio St. 342, Bartley, C. J., says: Appellate jurisdiction is the
cognizance which a superior court takes of a case removed to it by appeal or writ of error
from the decision of an inferior tribunal. The power of the appellate court necessarily includes
the power, not only to reverse a judgment, but also to control and direct the subsequent action
of the subordinate court. See also sec. 12 of Abbott's Appellate Procedure.
Jurisdiction has been defined to be the power to hear and determine a cause. (U. S. v.
Arredondo, 6 Pet. 691, 709; Smiley v. Sampson, 1 Neb. 70.)
Jurisdiction has often been said to be the power to hear and determine.' It is in truth the
power to do both or either, to hear without determining, or to determine without hearing. (Ex
Parte Bennett, 44 Cal. 88.)
This is an original proceeding in certiorari to review an order of the Second Judicial
District Court in and for Washoe County, W. H. A.
Washoe County, W. H. A. Pike, district judge, made on the 27th day of April, 1910,
remanding to the justice court of Reno Township a certain case appealed to said district court
from said justice court, entitled W. H. Bancroft, Plaintiff, v. G. S. Phenix and C. S. Stanley,
Copartners, doing business under the firm name and style of Phenix & Stanley, Defendants,
and further directing that all the files in the case be returned to said justice's court.
The return upon the writ, after setting out a copy of the order above mentioned, recited that
all the records and files in the case were on the 28th day of April, 1910, in pursuance of said
order, returned to Lee J. Davis, Esq., justice of the peace of Reno Township, in whose
possession they have since remained.
As the allegation in the petition in reference to these files is not questioned by respondent,
we may consider that a full return upon the writ would not disclose a different state of facts
than that alleged in the petition.
From the petition we quote the following statement of the case:
That on the 6th day of January, 1910, affiant brought suit in the justice's court of Reno
Township, in and for Washoe County, State of Nevada, against G. S. Phenix and W. C.
Stanley, copartners, doing business under the firm name and style of Phenix & Stanley,
defendants, for the sum of forty-four dollars ($44) due affiant for services rendered to
defendants as a miner. * * * That affiant prayed for judgment against defendants for the sum
of forty-four dollars ($44), together with the sum not less than fifty dollars ($50) as
reasonable attorney's fee, and costs of suit. The said complaint was duly verified by affiant.
That thereupon a summons was issued by the justice of said court, and served upon one of the
defendants, namely, G. S. Phenix, in Reno Township, Washoe County, Nevada; that
thereafter, on the 11th day of January, 1910, said defendant, G. S. Phenix, appeared in said
court and filed an answer in the words following, to wit (after entitlement): Now comes G. S.
Phenix, one of the above-named defendants, and objects that no copy of the complaint was
served upon him at the time of the service of the summons herein, or at any other time;
and asks that the service of said summons be set aside and disallowed as irregular and
void.
that no copy of the complaint was served upon him at the time of the service of the summons
herein, or at any other time; and asks that the service of said summons be set aside and
disallowed as irregular and void. And the said defendant, G. S. Phenix, without waiving his
objection to want of service of copy of complaint or his right to have such service set aside,
for answer to the complaint of the plaintiff filed herein, denies each and every allegation,
item, and particular in said complaint contended. J. B. Dixon, attorney for defendant G. S.
Phenix.'
That thereafter the justice of the peace overruled the objection of the defendant and trial
was then had before a jury on the complaint of affiant and answer of said defendant G. S.
Phenix, and a verdict for the sum of forty-four dollars ($44) was rendered in favor of affiant
against said defendant, and a cost bill was thereafter filed, and the said justice's court entered
judgment in favor of affiant on said verdict, and against said defendant, for the sum of
forty-four dollars ($44), costs of suit and attorney's fees; that thereafter, on or about the 26th
day of January, 1910, said defendant G. S. Phenix appealed said case to the district court of
the Second Judicial District of the State of Nevada, Washoe County, by filing a notice of
appeal, and also an undertaking on appeal; that thereafter said case was assigned for hearing
before W. H. A. Pike, one of the duly elected, qualified, and acting judges of the said Second
Judicial District Court, Washoe County; that thereafter said case was set down for trial before
said W. H. A. Pike for Monday morning, the 25th day of April, 1910, at 10 o'clock a. m., and
at said time and place affiant and defendant appeared in said court ready for trial, with their
witnesses in attendance; that the defendant then objected to the court hearing said case on the
ground that the court had no jurisdiction of the person of the defendant, or the cause of action
stated in the complaint, for the reason that a copy of the complaint had not been served on the
defendants at the time the summons was served on said G. S. Phenix, defendant; that the
court thereupon continued the matter under advisement, and held it under advisement
until Wednesday, the 27th day of April, 1910, at the hour of 10 o'clock a. m., when the
court held it had no jurisdiction to hear said case, and remanded said case to the justice's
court for further proceedings in that court against the objections of affiant to said
remanding order."
served on said G. S. Phenix, defendant; that the court thereupon continued the matter under
advisement, and held it under advisement until Wednesday, the 27th day of April, 1910, at
the hour of 10 o'clock a. m., when the court held it had no jurisdiction to hear said case, and
remanded said case to the justice's court for further proceedings in that court against the
objections of affiant to said remanding order.
If the district court had entered an order dismissing the appeal, we would have no
difficulty in determining this proceeding. The case would then be within the rule laid down in
Andrews v. Cook, 28 Nev. 265, 81 Pac. 303, and authorities therein cited. Such an order of
dismissal, whether erroneously made or not, would be within the jurisdiction of the court and
not subject to review by this court. It would be a final determination of the appeal.
It is not contended by either party in this proceeding that the order to remand had the force
and effect of a dismissal, and for the purposes of this case we will not consider it as having
such effect. If, as a matter of fact, the justice's court obtained jurisdiction over the defendant,
its judgment regularly entered and an appeal taken, an erroneous dismissal of the appeal
would have left the justice's court with jurisdiction to proceed by execution to enforce the
judgment. Also, if, as a matter of fact, the justice's court had jurisdiction to enter the
judgment which it did, the district court had no power, by remanding the case after appeal
taken, to compel it to again assume a jurisdiction it had already exercised.
The constitution gives to district courts final appellant jurisdiction over cases arising in
justices' courts. The district court may dismiss an appeal, or it may proceed and try it de novo.
But it cannot refuse to do one thing or the other. It may be that the district court would have
power to remand in cases where a justice of the peace had erroneously certified a case to the
district court upon the mistaken theory that a question involving title to real estate, or the
legality of a tax, impost, assessment, toll, or municipal fine was involved.
toll, or municipal fine was involved. (Comp. Laws, 3634; Const. art. 4, sec. 8.)
See, also, N. P. Terminal Co. v. Lowenberg (C. C.), 18 Fed. 339.
There may be other cases, also, where an order to remand would be appropriate. However,
the present clearly is not such a case. If the justice's court had not acquired jurisdiction, an
appeal would not invest the district court with jurisdiction, and an order to dismiss would be
the proper order in the premises. The justice's court would then be in the same situation it was
before the appeal was taken, for the effect of dismissing an appeal is to nullify the appeal for
all purposes. If the district court dismissed the appeal when the justice's court had jurisdiction
upon the erroneous theory that it had not acquired jurisdiction, and hence, the district court
had none, the judgment of the justice's court would nevertheless still remain valid.
In our judgment, the justice's court had acquired jurisdiction over the defendant Phenix,
and the appeal was properly before the lower court. (Golden v. Murphy, 31 Nev. 395, and
authorities therein cited; Security Co. v. Boston Co., 126 Cal. 418, 58 Pac. 941, 59 Pac. 296.)
In a case like that presented to the district court and involved in this proceeding, we think
the district court was without power to remand, but was limited either to a dismissal of the
appeal or to a trial of the case anew.
The orders under review are annulled.
____________
33 Nev. 82, 82 (1910) State v. Douglass
[No. 1926]
THE STATE OF NEVADA, on the Relation of JOE JOSEPHS, Relator, v. W. G.
DOUGLASS, as Secretary of State of the State of Nevada, Respondent.
1. Constitutional LawDetermination of Constitutional QuestionNecessityValidity of
StatutesPresumptions.
Courts will presume statutes to be valid and will not consider a question affecting their invalidity, unless
essential to a determination of the case.
2. Clerks of CourtNature of Office.
The office of clerk of the supreme court is a constitutional office.
3. OfficersAbolition of Office.
The legislature, in the absence of special authorization in the constitution, may not abolish a
constitutional office, or change, alter, or modify its constitutional powers and functions.
4. Clerks of CourtAbolition of OfficeStatutesConstitutionality.
Const. art. 4, sec. 32, providing that the legislature shall provide for the election by the people of a
clerk of the supreme court, etc., provides, as amended in 1889, that the legislature shall have power to
increase, diminish, consolidate, or abolish the following county officers: County clerks, county recorders,
etc. Held, that by expressly designating certain offices which might be consolidated, the constitution
intended to exclude all other offices, and hence the act of February 20, 1893 (Stats. 1893, p. 32, c. 35),
providing that the secretary of state shall be ex officio clerk of the supreme court and ex officio state
librarian, while sufficient to confer color of authority on the secretary of state acting ex officio clerk of the
supreme court, it is without force as an amendment or repeal, by implication, of the statute (Comp. Laws,
1782, 1790, and 1793), providing for the election of a clerk of the supreme court in the manner other state
officers are elected.
Original proceeding. Mandamus by the State on the relation of Joe Josephs against W. G.
Douglass, as Secretary of State of the State of Nevada. Writ granted.
Wm. Woodburn and James R. Judge, for Relator:
I. Relator contends that the office of clerk of the supreme court, as created by the
constitution of this state, is an elective office, the incumbent to be elected at the same time
and in the same manner as other state officers are elected.
the same time and in the same manner as other state officers are elected.
The constitution of Nevada, art. 17, sec. 18, provides as follows:
Sec. 18. The governor, lieutenant-governor, secretary of state, state treasurer, state
controller, attorney-general, clerk of the supreme court and superintendent of public
instruction to be elected at the first election under this constitution shall each qualify and
enter upon the duties of their respective offices on the first Monday of December succeeding
their election, and shall continue until the first Tuesday after the first Monday of January,
1867, and until after the election and qualification of their successors respectively.
Sec. 20. All officers of state first elected under this constitution shall be commissioned by
the governor of the territory.
Sec. 8. That the term of state officers except judicial, elected at the first election under
this constitution, shall continue until the Tuesday after the first Monday of January, 1867, and
until the election of their successors.
Art. 15, sec. 10, provides:
Sec. 10. All officers whose election or appointment is not otherwise provided for shall be
chosen or appointed as may be prescribed by law. (State v. LaGrave, 23 Nev. 373.)
II. The powers of the government of the State of Nevada are by sec. 1 of art. 3 of the
constitution divided into three departments: The legislative, the executive and the judicial;
and no persons charged with the exercise of powers properly belonging to one of these
departments shall exercise any of the functions appertaining to either of the others, except in
the cases herein expressly directed or permitted.
The office of clerk of the supreme court being a constitutional office belongs to and is an
essential part of the judicial department of the state government. Sec. 8 of art. 15 of the
constitution of Nevada provides: The legislature shall provide for the speedy publication of
all statute laws of a general nature, and such decisions, * * * provided, that no judgment
of the supreme court shall take effect and be operative until the opinion of the supreme
court in such case shall be filed with the clerk of said court."
ute laws of a general nature, and such decisions, * * * provided, that no judgment of the
supreme court shall take effect and be operative until the opinion of the supreme court in such
case shall be filed with the clerk of said court. Under the language of the constitution above
quoted it is not within the power of the legislature to impose upon the secretary of state, nor
of any other member of the executive department of the state government named in the
constitution, any of the duties or functions of clerk of the supreme court. (People v. Provenes,
34 Cal. 535; Staude v. Commissioners, 61 Cal. 396; Sawyer v. Dooley, 21 Nev. 396; Mayer
v. State, 15 Md. 376, 455; Story, Const. sec. 525; Reson v. Parr, 24 Ark. 161, 87 Am. Dec.
52; Butler v. State, 97 Ind. 373.)
III. The judicial department cannot consent that its province shall be invaded by either of
the other departments of the government. (Allison v. Louisville R. Co., 9 Bush, 247.)
IV. An office created by a constitution cannot be enlarged or restricted in its scope by a
statute or filled in any other manner than that prescribed by the constitution. (People v.
Bollam, 182 Ill. 528; State v. Cornell, 60 Neb. 276; Opinion of Justices, 117 Mass. 603;
Speed v. Crawford, 3 Metc. (Ky.) 207; People v. Raymond, 37 N. Y. 428; People v.
Albertson, 55 N. Y. 50, 43 Am. Dec. 740; Kilbourn v. Thompson, 103 U. S. 190-1; State v.
Buchanan, 24 W. Va. 362.)
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for
Respondent.
This is an original proceeding in mandamus, brought by the relator to require the
respondent to file his nomination papers and affidavit as a candidate for the Democratic party
nomination for the office of clerk of the supreme court, to be voted for at the primary election
to be held on the 6th day of September, 1910. The relator's petition alleges the necessary facts
to entitle him, as matter of right, to have his nomination papers and affidavit filed and to
have his name certified as a candidate for such nomination, providing such office is to be
filed by election.
matter of right, to have his nomination papers and affidavit filed and to have his name
certified as a candidate for such nomination, providing such office is to be filled by election.
The respondent has filed a general demurrer to the petition, and the proceeding has been
submitted upon the petition and the demurrer thereto.
By an act of the legislature entitled An act to consolidate certain state offices in the State
of Nevada, approved February 20, 1893, it is provided: Section 1. The secretary of state
shall be ex officio clerk of the supreme court and ex officio state librarian. * * * (Stats.
1893, p. 32, c. 35.)
It is the contention of relator that in so far as said act attempts to consolidate or combine
the offices of secretary of state and clerk of the supreme court, it is beyond the power of the
legislature and, hence, violative of the constitution; that said act cannot and does not have the
force of an amendment or repeal of the law existing at the time of its enactment, providing for
the election of a clerk of the supreme court as other state officers are elected (Comp. Laws,
1782, 1790, 1793), which provisions of the statute, so far as the question in controversy is
concerned, are unaffected by other subsequent legislation. If the relator is right in this
contention, the writ prayed for should issue, otherwise not.
Section 32 of article 4 of the state constitution, as originally adopted, reads as follows:
The legislature shall provide for the election, by the people, of a clerk of the supreme court,
county clerks, county recorders, who shall be ex officio county auditors, district attorneys,
sheriffs, county surveyors, public administrators, and other necessary officers, and fix, by
law, their duties and compensation. County clerks shall be ex officio clerks of the courts of
record, and of the boards of county commissioners in and for their respective counties. This
section of the constitution, as amended in 1889, now reads: The legislature shall have power
to increase, diminish, consolidate or abolish the following county officers: County clerks,
county recorders, auditors, sheriffs, district attorneys, county surveyors, public
administrators and superintendents of schools.
trict attorneys, county surveyors, public administrators and superintendents of schools. The
legislature shall provide for their election by the people, and fix by law their duties and
compensation. County clerks shall be ex officio clerks of the courts of record and of the
boards of county commissioners in and for their respective counties. (Comp. Laws, 86.)
In considering the question presented by counsel in the briefs and in the oral argument, it
will be well to advert first to the questions presented and determined in the decision of this
court in the case of State ex rel. Howell v. LaGrave, 23 Nev. 373, in which case the act now
in question was also involved. Howell was then the secretary of state and, by virtue of said
act, was the clerk of the supreme court, at least de facto. By the provisions of an act to
provide for the publication and distribution of the Nevada Reports (Stats. 1883, p. 78; Comp.
Laws, 2599 et seq.), the clerk of the supreme court was ex officio reporter of decisions, and
for the duties imposed on the clerk as such reporter, he was allowed a salary or compensation
of $600 per year. It was to compel the state controller to issue to him warrants for such salary
or compensation as reporter of decisions, that proceedings in mandamus were instituted by
Howell. It was the contention of the attorney-general for the respondent in that case that, as
the salary of the secretary of state was fixed by statute at $2,400 per annum, he could not be
paid any additional compensation, and to do so would be in violation of section 9 of article 15
and of section 5 of article 17 of the constitution. Considering this contention, after citing a
number of authorities, the court said: Under the above authorities, the offices of secretary of
state, of ex officio clerk of the supreme court, and the office of the reporter of the decisions of
the supreme court are separate and distinct offices, and their being vested in the same person
does not change their nature in this respect. If it was permissible under the constitution for the
legislature to confer upon the secretary of state a separate and distinct office charged with
separate and distinct duties, in no way naturally pertaining to the duties of the secretary's
office, and he performs these duties, we are of opinion that there is no provision of the
constitution that prohibits the legislature from providing for paying him for said services.
office charged with separate and distinct duties, in no way naturally pertaining to the duties of
the secretary's office, and he performs these duties, we are of opinion that there is no
provision of the constitution that prohibits the legislature from providing for paying him for
said services. (Love v. Baehr, 47 Cal. 364.)
In the opinion of the court on petition for a rehearing was considered the further contention
of the attorney-general that by the amendment of section 32, article 14, of the constitution,
supra, the office of clerk of the supreme court, with all its attendant duties, ceased to be a
constitutional office, and, without legislative creation then or thereafter, ceased to exist as an
office; that the legislature has not attempted to create the office of clerk of the supreme court,
or ex officio clerk of the supreme court, since said amendment to the constitution in 1889;
that there is not now any warrant or authority of law for the existence of any such office or
officer under the constitution or laws of this state. The court considered this contention at
length and called attention to other constitutional provisions, especially those providing that
no judgment of the supreme court should take effect and be operative until the opinion of the
court in such case shall be filed with the clerk of said court (Const., sec. 8, art. 15); that the
clerk of the supreme court shall keep his office at the seat of government (Const., sec. 12, art.
15), and said: In obedience to the requirements of said original section 32, article 4, of the
constitution, the said act of 1866 provided: Sec. 12. At the general election in the year 1866,
and at the general election every four years thereafter, the clerk of the supreme court shall be
chosen by the qualified electors of the state, and shall hold his office for the term of four
years from the first Monday of January next after the election, and until his successor is
qualified.' The fact that the provision of the original section 32 of article 4, concerning the
clerk of the supreme court, was left out of said section as amended in 1889, in no manner
affects the above provisions of the statute, and in no degree affects the constitutional
character of the office of clerk of the supreme court."
provisions of the statute, and in no degree affects the constitutional character of the office of
clerk of the supreme court.
The question of the power of the legislature to consolidate, combine, or materially change
or alter the conditions of constitutional offices, in the absence of specific constitutional
authority so to do, was not presented, argued, or determined in the LaGrave case, supra, nor
was such question essential to a determination of that case. Hence, that case is not conclusive
of the question presented in this case. It would seem from a reading of the opinion in the
LaGrave case, that the court in rendering its opinion may have intended to be particular that
the opinion should not be regarded as conclusive of any question of legislative powers not
presented or considered, for it said: If it was permissible under the constitution for the
legislature to confer upon the secretary of state a separate and distinct office charged with
separate and distinct duties, * * * we are of opinion, etc. (See full quotation above.)
It not infrequently happens that statutes are involved in cases considered by appellate
courts and the provisions thereof are construed and enforced; no question being raised as to
their validity. Subsequently, when the same statutes are attacked, they may be, and often are,
held to be void. It is a rule of almost universal application that courts will presume statutes to
be valid and will not consider a question affecting their invalidity, unless essential to a
determination of the case. Such necessity did not appear in the LaGrave case. The secretary of
state, Mr. Howell, was performing the duties and exercising the functions of the office of
clerk of the supreme court and of the ex officio office attached thereto, and was so recognized
by the court and by the public. No one was contesting his right to hold the office, and,
conceding the act to be unconstitutional, it was sufficient color of authority to constitute him
a de facto officer and render his official acts valid. The same situation has prevailed since the
decision in the LaGrave case and still prevails.
The LaGrave case is conclusive, however, upon one important point involved in the
determination of this case, to wit: The office of clerk of the supreme court is a constitutional
office. This point is so thoroughly covered by the opinion in that case that further
consideration of it is unnecessary. This brings us to the question now presented for
determination, Did the legislature have the power to combine or consolidate the offices of
clerk of the supreme court and secretary of state, or impose the duties of the former upon the
latter? If these two offices may be combined, where is the prohibition in the constitution that
any other two constitutional offices may not be combined, unless it be the provision requiring
their election? If the constitution were amended, merely striking out the provision providing
for their election, would that mere fact give the legislature power to combine and consolidate
them as it saw fit?
In speaking of the implied powers and duties of certain constitutional officers, the
Supreme Court of California in Love v. Baehr, cited, supra, by this court in the LaGrave case,
said: It is admitted that the constitution contains no express limitation on the power of the
legislature in this particular. But we think a limitation is necessarily implied from the
definition of the office. From the earliest period of our history as a nation, almost every state
in the Union had a secretary of state, controller, treasurer, and attorney-general; and the
general nature of the duties pertaining to each were perfectly well known to the framers of the
constitution. It is clear beyond controversy that in establishing similar offices here, the
framers of that instrument had reference to the same general class of duties, which was well
known pertained to such offices elsewhere. * * * It is not usual in state constitutions to define
the particular duties of subordinate officers; that being the particular province of the
legislature. * * * In the performance of this duty, the legislature may rightfully exercise a
wide discretion. * * * In cases of doubt, it would be the duty of the courts, in deference to the
legislative authority, to solve the doubt in favor of the power exercised; and they ought to
interfere only in a clear case, when the legislature has manifestly transcended its
authority by imposing upon one of these offices duties which, in their nature, are wholly
foreign to the office.
legislative authority, to solve the doubt in favor of the power exercised; and they ought to
interfere only in a clear case, when the legislature has manifestly transcended its authority by
imposing upon one of these offices duties which, in their nature, are wholly foreign to the
office. * * * The business of counting money in the treasury, examining books of account, * *
* and the investment of public money in bonds, is wholly foreign to duties of an attorney, and
is no more cognate to them than the management of a state prison or lunatic asylum. The
legislature has no more power to compel the attorney-general to perform such service as a
part of the duties of his office than it has to compel the superintendent of public instruction to
take charge of the state prison, or to perform the duties of state gauger. The attorney-general
is, therefore, under no obligation to perform such services, and he may decline to perform
them without any breach of his official duty as attorney-general. If, however, he voluntarily
performs them, he does not thereby enlarge the scope of his official duties as a constitutional
officer. By no compact between him and the legislature can his official duties as
attorney-general be extended beyond the limits contemplated by the constitution. * * * If,
however, he has performed a service which, under the constitution, is wholly foreign to his
office, and which is not and cannot become a part of his official duty as attorney-general, and
if the legislature has seen fit to compensate him for this unofficial service, there is no
constitutional impediment to hinder them from so doing.
In the case of Melone v. State, 51 Cal. 549, the case of Love v. Baehr, supra, was followed
in the case of the secretary of state as ex officio a member of the state board of examiners. In
the case of Green v. State, same volume, page 577, the same rule was applied to the office of
state controller. See, also, Lewis v. Colgan, 115 Cal. 535, 47 Pac. 357; State v. Weston, 4
Neb. 234; Cornell v. Irvine, 56 Neb. 665, 77 N. W. 114; State v. Roddle, 12 S. D. 433, 81 N.
W. 980; Bradley v. Esmeralda Co., 32 Nev. 159. It will be observed from a reading of the
Baehr case, supra, that when a constitutional officer is by statute made ex officio another
officer, the ex officio office is subordinate to the constitutional office to which he was
elected, and that an exercise of the duties and functions of the ex officio office is not
essential to the right of holding the principal office; but the converse is not the case.
It will be observed from a reading of the Baehr case, supra, that when a constitutional
officer is by statute made ex officio another officer, the ex officio office is subordinate to the
constitutional office to which he was elected, and that an exercise of the duties and functions
of the ex officio office is not essential to the right of holding the principal office; but the
converse is not the case. (Denver v. Hobart, 10 Nev. 28, 31; State v. Laughton, 19 Nev. 202,
205.)
This proposition is well illustrated by the opinion in the case of State v. Laughton, supra,
in which this court said: It is true, the lieutenant-governor is required to give the bond,
because the lieutenant-governor and librarian are one person; but he gives it for the ex officio
office, not the principal one. The sureties are not, and were not intended to be, liable for any
malfeasance outside of the ex officio office. We cannot say in this proceeding that
respondent's right to hold the office of lieutenant-governor, and enjoy the emoluments
thereof, depends upon a faithful discharge of the duties of state librarian, or upon his
compliance with the statute concerning the bond required of him as librarian. We cannot
pronounce the office of lieutenant-governor vacant, unless respondent has done something, or
failed to do something, which the law declares shall produce a vacancy therein. The fault here
charged is failure to give the bond required as state librarian. For that fault, if it exists, the
only penalty that can follow in this proceeding is, at most, to declare that the office in which
the bond is required was, by such failure, vacated and forfeited.
Both the offices of secretary of state and clerk of the supreme court have existed as a part
of the framework of every state in the Union, and the duties and functions are well known.
While the duties of the office of clerk of the supreme court are ministerial in character,
nevertheless the office is an essential part of one of the coordinate departments of the state
government, and without such office that branch of the state government could not perform
its functions. The office of secretary of state holds an equally important position in the
executive branch of government.
state holds an equally important position in the executive branch of government. It has been
urged that as these two offices appertain to separate and distinct coordinate departments of
the state government, it would be in violation of article 3 of the constitution to combine them,
but as this contention is not clearly manifest, both offices being mainly ministerial in
character, and as the question can be determined upon another view of the case, we give this
point no consideration further than to observe that it emphasizes the fact that the two offices
are distinct, and that the duties of one do not pertain to the duties of the other. As both of the
offices are constitutional in character and both distinct in having duties which appertain to
each, but which do not appertain to the other, the legislature is without power to compel
either officer to perform the duties of the other. This point is brought out and sufficiently
covered in the quotation from the case of Love v. Baehr, supra.
Every constitutional officer derives his power and authority from the constitution, the
same as the legislature does, and the legislature, in the absence of express constitutional
authority, is as powerless to add to a constitutional office duties foreign to that office, as it is
to take away duties that naturally belong to it. The legislature may do as it sees fit with offices
of its own creation; may consolidate or abolish them; or may enact a statute making an office
of its own creation ex officio to some constitutional office. In the latter case, the
constitutional officer may and usually does perform the duties of the ex officio office, but no
power exists to compel him to so perform them, as a condition precedent to his holding the
principal office. It is upon this theory that courts have universally held that for such additional
ex officio duties, officers may receive an additional compensation or salary, although there
be, as in the case of our own constitution, a provision that the salary of such constitutional
officers may not be increased or diminished during the term for which they were elected.
It is well settled by the courts that the legislature, in the absence of special authorization
in the constitution, is without power to abolish a constitutional office or to change, alter,
or modify its constitutional powers and functions.
the absence of special authorization in the constitution, is without power to abolish a
constitutional office or to change, alter, or modify its constitutional powers and functions.
(People v. Bollam, 182 Ill. 528, 54 N. E. 1032; Koch v. Mayor, 152 N. Y. 72, 80, 46 N. E.
170; Lloyd v. Smith, 176 Pa. 213, 35 Atl. 199; Massenburg v. Commissioners, 96 Ga. 614, 23
S. E. 998; Thomas v. Owens, 4 Md. 189; State v. McDaniel, 19 S. C. 114; Troy v. Wooten, 32
N. C. 377; State v. Covington, 29 Ohio St. 102; Ford v. Commissioners, 81 Cal. 19, 22 Pac.
278; In re Bulger, 45 Cal. 553; Love v. Baehr, supra; Denver v. Hobart, 10 Nev. 28, 31; 29
Cyc. 1368; Cooley's Constitutional Limitations, 6th ed. pp. 78, 79.)
In People v. Bollam, supra, the court said: It is a well-established rule of constitutional
construction that when the constitution defines the circumstances under which a right may be
exercised, the specification is an implied prohibition against the right of the legislature to add
to the condition. * * * Section 24 of article 5 of the constitution of 1870 says that an office is
a public position created by the constitution or law,' etc. The constitution thus recognizes two
classes of officers, one which is created by the constitution itself, and the other which is
created by statute. Where an office is created by statute, it is wholly within the control of the
legislature creating it. But when an office is created by the constitution, it cannot be enlarged
or lessened in scope by any statute, or be filled in any other manner than the manner directed
by the constitution. (People v. Loeffler, 175 Ill. 585.)
In Denver v. Hobart, supra, this court, by Hawley, J., said: The offices of
lieutenant-governor and warden of the state prison were as distinct as though filled by
different persons. The duties and obligations of the one are entirely independent of the duties
and obligations of the other. So far as the office of ex officio warden existed in the relator, it
was an office created by legislative act. The legislature might at any time direct how it should
be filled, what compensation should be allowed, and provide the manner in which its duties
should be discharged. In such cases the length of the term of office is regulated by
considerations which affect the public interest, without any regard to the interests of the
office-holder."
such cases the length of the term of office is regulated by considerations which affect the
public interest, without any regard to the interests of the office-holder.
In the case of State v. Rosenstock, 11 Nev. 139, this court said: The duties imposed upon
them as city officers are of the same character as those which they are respectively required to
perform as county officers, and there is no constitutional inhibition against the exercise of the
duties of a municipal office by a person holding a county office, when the duties of each are
of the same character.
Cyc. supra, says: The authority of the government which possesses the power to create an
office has, in the absence of some provision of law passed by a higher authority (that is, in the
case of a municipal authority, some statutory or constitutional provision; in the case of the
legislature, some constitutional provision), the implied power to abolish the office it has
created, or to consolidate two or more offices it has created. But if an office has been
provided for by the constitution, such an office may not be abolished by an act of the
legislature.
By a reference to the provisions of section 32, article 4, of the constitution, as it read
before its amendment, it will be observed that the only change made in its provision by the
amendment was to eliminate all mention of the office of clerk of the supreme court, and to
add the provision that the county officers mentioned in the section as originally enacted,
could be, by the legislature, increased, diminished, consolidated, or abolished. The
amendment also added the office of superintendent of schools to the list; otherwise there was
no change in the offices originally designated.
If the legislature had power to consolidate or abolish county officers named in the
constitution, there was no necessity for the amendment in so far as it affected such county
officers. We think here was a clear recognition of the established legal principle, that in the
absence of such constitutional authority, the legislature was without power to deal with such
offices in the manner provided in the amendment.
in the amendment. In so far as the amendment affected the office of clerk of the supreme
court, it only removed from the constitution the provision requiring his election, and left that
subject in the power of the legislature to deal with. As having some possible bearing upon the
application of the principle of law deemed controlling in this case, it is proper, we think, to
mention the fact that, so far as we have been able to ascertain, no legislature of any state has
ever before attempted to consolidate or combine two constitutional offices of the state
government.
Again adverting to the provisions of section 32 of article 4 of the constitution as amended,
we find it specially enumerates certain offices which may be consolidated or abolished,
increased or diminished, and that all of the offices so named are county offices. We think the
maxim Expressio unius est exclusio alterius, clearly applicable, and that the constitution by
specifically designating certain particular offices of a particular class which may be
consolidated, etc., intended to exclude from such provisions all other constitutional offices.
Broom, in his Legal Maxims, says that no maxim of the law is of more general and uniform
application and is never more applicable than in the construction and interpretation of
statutes. (19 Cyc. 23.) This maxim is alike applicable to the construction of constitutional
provisions. (8 Cyc. 729; Spier v. Baker, 120 Cal. 376, 52 Pac. 659, 41 L. R. A. 196; State v.
Clark, 21 Nev. 338.)
In State v. Clark, supra, this court said: 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 (Emd. Interp. Stat. 405, 409; Edgecomb v. His
Creditors, 19 Nev. 149, 152).
The legislature being without power to make one constitutional office subordinate to
another, or to consolidate or combine one with the other, hence, while the act entitled "An act
to consolidate certain state offices in the State of Nevada," is sufficient to confer color of
authority upon the secretary of state acting ex officio clerk of the supreme court, it is
without force as an amendment or repeal, by implication of the provisions of the statute
providing for the election of a clerk of the supreme court in the manner other state
officers are elected.
tled An act to consolidate certain state offices in the State of Nevada, is sufficient to confer
color of authority upon the secretary of state acting ex officio clerk of the supreme court, it is
without force as an amendment or repeal, by implication of the provisions of the statute
providing for the election of a clerk of the supreme court in the manner other state officers are
elected.
The relator having offered for filing his nomination papers and tendered the requisite fee
within the time allowed by law therefor, it is the duty of the respondent to file the same as of
the day offered for filing, and to certify his name as a candidate for the Democratic
nomination for the office of clerk of the supreme court, as candidates for other party
nominations are certified.
The writ prayed for shall issue.
____________
33 Nev. 97, 97 (1910) Silver Peak Mines Co. v. District Court
[No. 1886]
SILVER PEAK MINES (a Corporation), THE SILVER PEAK GOLD MINING COMPANY
(a Foreign Corporation), and DE WITT CLINTON BLAIR, in His Own Right, and as
Administrator, with the Will Annexed, of the Estate of John I. Blair, Deceased,
Petitioners, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, IN AND FOR THE COUNTY OF WASHOE, and the HONORABLE W. H.
A. PIKE, as Judge Thereof, Respondents.
1. ProhibitionScope of RemedyAppeal.
A writ of prohibition cannot ordinarily be used to correct errors by inferior tribunals, and will not issue
either in civil or criminal proceedings, where there is an adequate remedy by appeal or writ of certiorari.
2. ProhibitionScope of WritQuestions Reviewable.
Where an action was brought to recover possession of certain mining ground on an agreement containing
a provision for plaintiff's taking possession of and working the mines, and the court had original
jurisdiction to hear and determine the issues, if it erred in ordering judgment for plaintiff for possession,
and for an accounting, or for damages for defendant's refusal to deliver possession under the agreement, its
decision was reviewable by appeal only, and not on a writ of prohibition.
3. JudgmentReliefAccounting.
Where, in an action to recover certain mines, plaintiffs sought to have the contract under which they
claimed specifically enforced, and also asked for general relief, the court had jurisdiction to decree an
accounting under a statute providing that, where parties appear, the court may grant any relief consistent
with the case made by the complaint and embraced within the issue.
4. ProhibitionScope of WritReview.
Where defendants, in an action to recover a mining claim, contended that a provision of the decree in
favor of plaintiff and directing an accounting was not within the issues, whether the court had jurisdiction
to decree such an accounting was reviewable by appeal, and not by a writ of prohibition.
5. Appeal and ErrorStay BondStatutes.
Where an action was instituted to recover possession of certain mines under a contract giving plaintiffs
the right to take possession of and work the mines, defendants, to stay execution pending appeal from a
judgment for plaintiffs, were bound to give an undertaking, the amount of which should be fixed by the
judge under Comp. Laws, 3440, providing that, if a judgment appealed from directs the delivery of
possession of real property, execution shall not be stayed unless a written undertaking
be executed by appellant to the effect that during the possession of the property by
appellant he will not commit or suffer any waste thereon, and that, if the judgment
be affirmed, he will pay the value of the use and occupation from the time of appeal
until delivery of possession pursuant to the judgment or order, not exceeding the sum
fixed by the judge, a $300 cost bond being insufficient for such stay.
property, execution shall not be stayed unless a written undertaking be executed by appellant to the effect
that during the possession of the property by appellant he will not commit or suffer any waste thereon, and
that, if the judgment be affirmed, he will pay the value of the use and occupation from the time of appeal
until delivery of possession pursuant to the judgment or order, not exceeding the sum fixed by the judge, a
$300 cost bond being insufficient for such stay.
6. Appeal and ErrorStayStipulationEstoppel.
Where, after judgment in favor of plaintiffs, the parties stipulated that the operation of a writ of assistance
would be stayed to such a time as the court might set for the hearing of testimony to determine the amount
of a stay bond, and that the bond, as to its form and sufficiency, should be approved by the court or a judge
thereof, and should be to the end and substantially in the form as though on an appeal and given under
Comp. Laws, 3440, defendants were thereafter estopped to contend that such section did not cover the
bond to be given, and that the giving of a $300 cost bond was sufficient to stay the execution of the writ
pending appeal.
7. Appeal and ErrorStay BondExecutionTime.
A bond to stay execution pending appeal may be given any time before the execution has been executed.
8. Appeal and ErrorStay BondFixing Amount.
When application was first made to the court to fix a stay bond pending appeal in an action to recover
certain mines, the court was unable to give the matter due consideration, and authorized a temporary stay
on the giving of an appeal bond for $300, reserving the right thereafter to establish the amount of a
permanent bond to stay execution, pending appeal, and fixed a date for the hearing of proofs on that
subject. The court thereafter fixed $150,000 as the amount of an undertaking to stay execution pending a
motion for a new trial, and until 15 days thereafter. Defendants failed to introduce any proof regarding the
value of the ore they were removing from the property, and as to plaintiffs' damage from waste by their
continued possession. Held, that the court had jurisdiction to fix the amount of such stay bond.
Original proceeding. Application by Silver Peak Mines and others for a writ of prohibition
against the Second Judicial District Court of Washoe County, Nevada, and the Honorable W.
H. A. Pike, Judge thereof. Writ denied.
Samuel Platt, Rush Taggart, and Clarence Blair Mitchell, for Petitioners.
J. W. Dorsey and R. M. F. Soto, for Respondents:
On the application for a writ of prohibition in this proceeding the only question open for
consideration is: Is the district court about to take some action which would be in excess or
without its jurisdiction?
If the judgment which it is supposed the court is about to enforce is void, it must be so
only because it is either beyond the issues or because the district court, as a court of equity,
had not, as such, jurisdiction to render such judgment. If a case can be supposed in which the
district court would have jurisdiction to render such a judgment as was pronounced in this
case, then this court cannot examine the pleadings for the purpose of determining whether the
judgment is based upon facts sufficient to constitute a cause of action, if the judgment is
within the prayer of the complaint.
In other words, a judgment is not beyond the jurisdiction of a court merely because the
complaint does not state facts sufficient to constitute a cause of action. (Brush v. Smith, 141
Cal. 459-470; Blondeau v. Snyder, 95 Cal. 521, 523; In re James, 99 Cal. 374, 376, and the
authorities there cited; Head v. Daniels, 15 Pac. 911; Le Mesnager v. Variel, 144 Cal. 463,
466-467; Crane v. Cummings, 137 Cal. 201, 202; Dryden v. Parrotte, 85 N. W. 287, 288;
North Pacific Cycle Co. v. Thomas, 38 Pac. 307, 308.)
If the pleadings are to be considered in this case, the court will find that the judgment is in
accordance with the prayer of the third amended and supplemental complaint. (Van Loben
Sels v. Bunnell, 137 Cal. 489.)
A writ of prohibition is a preventive, not a remedial, process. It cannot be used to take the
place of an appeal, or a writ of certiorari, or other mode of review. Whenever any of these
remedies is available prohibition cannot be resorted to (Ex Parte Roundtree, 51 Ala. 51.)
(Caker v. Superior Court, 58 Cal. 177, 178.)
Nevertheless, the writ ought not to issue where there is another and adequate remedy.
Properly speaking, the office of the writ is not to correct errors, but to prevent courts from
transcending the limits of their jurisdiction in the exercise of judicial but not ministerial
power.
courts from transcending the limits of their jurisdiction in the exercise of judicial but not
ministerial power. (2 Hill, 363, 367, et seq.)
The writ of prohibition is an extraordinary prerogative writ, as old as the common law
itself. (Holladay v. Hodge, 65 S. E. 952.)
Such is the writ mentioned in the Nevada constitution (art. 6, sec. 4), and its nature could
not be extended, even by legislative enactment, to make it operate as a writ of certiorari, or a
writ of error, or to perform the functions of an appeal. (Low v. Crown Point M. Co., 2 Nev.
75; State v. Durand, 104 Pac. 760.)
The writ of prohibition does to lie to prevent an erroneous decision, or to prevent the
enforcement of an erroneous judgment. It does not lie to correct errors. (Holladay v. Hodge,
65 S. E. 952; State v. Durand, 104 Pac. 760.)
As in the case of certiorari a writ of prohibition cannot be used as a vehicle for the
correction of errors in respect to questions which the trial court was authorized to investigate
and determine. (Phillips v. Welch, 12 Nev. 158.)
Whenever the lower tribunal has regularly pursued its authority and has not in any respect
exceeded its jurisdiction, our authority ceases. We cannot in this proceeding by certiorari
furnish a panacea for all the ills that flesh is heir to; nor can we correct any errors of law or
fact, not jurisdictional in their character, that may be committed by any inferior tribunal
acting within the scope of its authority. (Phillips v. Welch, 12 Nev. 158.)
The equity jurisdiction with which our district courts are invested under the constitution
is that administered in the high court of chancery in England. (People v. Davidson, 30 Cal.
379; Sanford v. Head, 5 Cal. 297; Rosenberg v. Frank, 58 Cal. 387; Willis v. Farley, 24 Cal.
490; Burns v. Superior Court, 140 Cal. 1.)
This equity jurisdiction can neither be curtailed nor abridged by the legislature. (Hicks v.
Bell, 3 Cal. 219; Guy v. Hermance, 5 Cal. 73; In re Jessup, 81 Cal. 408; Willis v. Farley, 24
Cal. 490; City of Tulare v. Hevren, 126 Cal. 226; Bacon v. Bacon, 150 Cal.
Willis v. Farley, 24 Cal. 490; City of Tulare v. Hevren, 126 Cal. 226; Bacon v. Bacon, 150
Cal. 477.)
The district court as a court of equity having taken jurisdiction for one purpose will
assume it for all purposes, and retain it so as to do complete justice between the parties; for it
will not permit litigation piecemeal. (Ord v. McKee, 5 Cal. 515; O'Connor v. Irvine, 74 Cal.
435; Watson v. Sutro, 86 Cal. 500; Booken v. Aitken, 140 Cal. 473; Quint v. McMullen, 103
Cal. 381; People v. Gold Run M. Co., 66 Cal. 155; Walsh v. Wallace, 26 Nev. 299; Frey v.
Londen, 70 Cal. 550; Feeney v. Chester, 7 Idaho, 324.)
The application for order fixing stay bond must be accompanied by the facts essential to
invoke judicial discretion.
In State v. Clements, 94 Pac. 837, the supreme court of that state issued a mandamus
requiring the lower court to set aside an order granting a stay of execution without terms
pending a motion for a new trial. On motion to quash the alternative writ issued, the court
held that it did not appear what facts were shown to the judge of the lower court or brought to
his knowledge at the time the order was made; that the trial judge will be presumed to have
done his duty, and to have acted in granting a stay, either upon knowledge within his
possession gained from the proceedings themselves or from a proper showing made when the
stay order was demanded.
In the same case (95 Pac. 845), there was a hearing on the amended petition wherein it was
stated that no facts were shown or brought to the knowledge of the district court or the judge
thereof on the application for a stay of execution; that such stay was based upon the mere
verbal request of the defendant's counsel without any showing whatever. The court held: The
duty did not rest upon the successful party to furnish the facts necessary to move the
defendant's discretion. He was entitled to his execution, in the absence of a stay, and the stay
could be granted only upon an application, supported by facts sufficient to move judicial
discretion.
Whether an execution shall be stayed pending an appeal, without security, or whether the
appellant shall be compelled to give security, and, if so, the amount thereof in order to entitle
him to such stay, are matters purely of legislative control.
Under the statute the amount of the undertaking to stay execution in cases where the
judgment appealed from directs delivery of the possession of real property must be fixed by
the judge. (Boob v. Hall, 105 Cal. 413.)
Gutzeit v. Pennie, 97 Cal. 484, holds that if a bond is given upon an appeal which is not
sufficient to stay execution the judgment creditor is not affected. He is at liberty to enforce
the judgment at any time, because it is the duty of the appellant to give such an undertaking as
the statute requires if he desires to stay the enforcement of the judgment. See Spence v.
Kowalsky, 95 Cal. 152; Sheppard v. Tyler, 92 Cal. 552; Johnson v. King, 91 Cal. 307-309;
Freeman on Executions, sec. 32a, p. 121.
In Neale v. Superior Court the appellant filed a bond, which was approved, to stay
proceedings, the court says (pp. 29-30): Did the appeal entitle the corporation to a stay of
proceedings under section 945 of the code of civil procedure? The order in question required
the delivery of possession of real property. That section provides that an appeal from such an
order shall not stay execution unless a written undertaking, as therein specified, shall be
given. In the present case such an undertaking, duly approved, was given. It would seem that
the converse of the proposition must be true, and that, if the undertaking is given, it does stay
the execution of the order appealed from. The very object of the undertaking is to secure the
person in whose favor the judgment or order is made for the damages which he may sustain
by the delay.
Section 3438 of the Compiled Laws requires the same sort of an undertaking where the
judgment directs delivery of personal property, as does section 3440 where the judgment
directs the delivery of possession of real property.
Swasey v. Adair, 88 Cal. 203, involved a judgment for the delivery of personal property.
Upon appeal the appellant gave the ordinary undertaking for $300, and when execution was
issued applied to the supreme court for a writ of supersedeas. The court says, referring to the
section of the California code of civil procedure, practically identical with section 3438: A
judgment for plaintiff, in an action for the recovery of personal property, is immediately
enforceable by a return of the property in specie, unless the defendant gives an additional
bond to stay proceedings pending his appeal. On the other hand, section 943 of the code of
civil procedure expressly provides that If the judgment appealed from direct the delivery of *
* * personal property, the execution of the judgment cannot be stayed by appeal, unless the
things directed to be delivered be placed in the custody of such officer or receiver as the court
may appoint, or unless an undertaking be entered into on the part of the appellant * * * to the
effect that the appellant will obey the order of the appellate court upon the appeal.' For these
reasons, we think the appellant is not entitled to an order of this court for a stay of
proceedings on the judgment from which she has appealed. In other words, we consider that
we can grant such relief on the mere motion of an appellant, and as an incident of our
appellate jurisdiction, in those cases only where the appeal has been so taken and perfected as
to operate a stay according to the provisions of the statute.
In Bateman v. Superior Court, 139 Cal. 190, the court, on page 143, says: The action
being in unlawful detainer an appeal by the defendant shall not stay proceedings upon the
judgment, unless the judge or justice before whom the same was rendered so directs.' (Code
Civ. Proc., sec. 1176.) In this case there was no direction by the judge for a stay of
proceedings, no undertaking to stay the execution of the judgment was ever given, or sought
to be given, but by merely taking an appeal from this order the defendant seeks to accomplish
a result which, under the code, can only be obtained after a careful preservation of the rights
of the prevailing litigant, in the manner there prescribed."
ful preservation of the rights of the prevailing litigant, in the manner there prescribed.
If there is no stay bond the lower court may issue the writ of assistance. In California Bank
v. Graves, 129 Cal. 649, the court (pp. 650, 651), says: Appellant claims that the
judgment-roll in this case was improperly admitted in evidence because the case is on appeal
to this court and is deemed to be pending. (Citing Code Civ. Proc., sec. 1049; In re Blythe, 99
Cal. 472; Naftzger v. Gregg, 99 Cal. 83; Murray v. Green, 64 Cal. 363.) But section 942 of
the same code provides that if the judgment appealed from direct the sales * * * of real
property, the execution thereof cannot be stayed, unless a written undertaking be executed on
the part of the appellant * * * that he will not commit any waste thereon, and that if the
judgment be affirmed, or the appeal dismissed, he will pay the value of the use * * * of the
property,' etc., and where the judgment is for the sale of mortgaged premises, and the
payment of a deficiency arising upon the sale, the undertaking must provide for the payment
of such deficiency. No stay bond was given in the present case, but simply the ordinary appeal
bond as provided by section 941 of the code of civil procedure. The cases cited by appellant
do not reach the point made by him. The evidence was admissible, and the writ could issue
notwithstanding the appeal. (Montgomery v. Tutt, 11 Cal. 190.)
Section 3440 applies to a case where the defendant, or those holding under him, has or
have property in his or their possession which has been adjudged by the lower court to belong
to the respondent, or where the appellant is required to do some act, within the meaning of
that section, for the benefit of the respondent and where it would be unjust to allow the
appellant to retain the possession of the property, and perhaps dissipate it or put it out of his
power to perform the act required, without securing respondent by a bond.
The mere existence of an appeal from a final decree does not affect the inherent validity
and force of that decree.
does not affect the inherent validity and force of that decree. Section 3440 provides:
If the judgment * * * appealed from directs * * * the delivery of possession of real
property, the execution of the same shall not be stayed unless a written undertaking be
executed on the part of the appellant * * * to the effect that during the possession of such
property by the appellant it will not commit nor suffer to be committed, any waste thereon,
and that if the judgment be affirmed it will pay the value of the use and occupation of the
property from the time of the appeal until the delivery of the possession thereof, pursuant to
the judgment, * * * not exceeding a sum to be fixed by the judge.
It is manifest that the section quoted is only intended to stay the execution of the judgment
so far as the delivery of possession is required by its terms.
What was actually done by the court in this case was in the exercise of its power to control
its process in the interest of justiceto grant the appellants a reasonable opportunity to make
the showing essential to the exercise of its discretion in fixing the amount of the undertaking
to be given to stay the enforcement of its judgment.
Each court has such general control of its process as to enable it to act for the prevention
of all abuse thereof, regardless of appellate proceedings. In Granger v. Craig, 85 N. Y. 620,
the court says: When an appellant will rely alone upon his appeal for a stay of the
proceedings on the judgment appealed from, he must give the undertaking that the code
requires. The code, however, does not abridge the power that the court has always had over
its own judgments, to correct mistakes in them, to vacate them for irregularity, to stay
proceedings on them for such time and on such terms as to the court seem proper. It is a
discretion still resting in that court, and not to be reviewed in this court, unless capriciously
exercised or abused. In this case neither of those things has been done. The order made was
not appealable. (Quinlan v. Rossell, 4S N. Y. Super.
Rossell, 48 N. Y. Super. 538; Blackburn v. Reilly, 48 N. J. L. 82, 2 Atl. 817, 819.)
Hence, if the judgment is void there is a remedy by motion to either arrest or stay process.
(Murdock v. DeVries, 37 Cal. 527; Chipman v. Bowman, 14 Cal. 157; Bell v. Thompson, 19
Cal. 798; Logan v. Hillegas, 16 Cal. 200; Bell v. Thompson, 19 Cal. 706; Sanchez v.
Carriaga, 31 Cal. 170; Ketchum v. Crippen, 37 Cal. 223.)
In Robinson v. Chesseldine, 5 Ill. 332, the court in holding that a court of equity will not
entertain jurisdiction where there is an adequate remedy at law, says: Courts of law have a
general supervisory power over their process, either mesne or final, and, according to the
settled practice, may prevent or correct any abuse of it.
In 1 Freeman on Executions, sec. 32, the author says: The power of courts to temporarily
stay the issuing of is execution of exercised in an almost infinite variety of circumstances, in
order that the ends of justice may be accomplished. * * * It is the general practice of the
losing party to ask, and for the court to grant, a stay of execution for some designated period
after the entry of judgment, for no other reason than he is not yet ready to comply with the
judgment, or, perhaps, in view of proceedings by appeal or for a new trial. These stays
generally result in delay, and sometimes in the defeat of justice, and the courts ought to be
very cautious in granting them, except in cases where the ultimate satisfaction of the
judgment by the defendant is assured. The power, however, to grant such stays of execution is
everywhere conceded, and it could not be limited by the enactment of any unvarying rule
without encountering evils of greater magnitude than those sought to be suppressed. (Credits
Com. Co. v. Superior Court, 140 Cal. 82; Elliott v. Sup. Ct., 144 Cal. 501, 509.)
In Eaton v. Cleveland, 41 Fed. 421, the court says: In these cases motions for a temporary
stay of execution on the judgment have been filed. Where the motions were argued, counsel
strenuously contended that the court had no power to grant a temporary stay of execution, and
that it would be a clear violation of the rights of the judgment creditors to withhold
execution, even for a short period.
that it would be a clear violation of the rights of the judgment creditors to withhold execution,
even for a short period. A cursory examination of that question satisfies me, however, that all
courts of common law have power to temporarily stay executions on judgments by them
rendered, whenever it is necessary to accomplish the ends of justice. In Sawin v. Bank, 2 R. I.
383, the court said: We are satisfied that the court has an entire control over its process, and
that it is in the discretion of the court to grant or stay the execution in each particular case,
according to the circumstances. But this discretion must be judicially exercised,' etc. * * * In
Robinson v. Yon, 8 Fla. 355, the court said: Courts of law have full power to revoke, correct,
restrain, or quash their own process, in the course of their own ordinary jurisdiction.' (Steere
v. Stafford, 12 R. I. 131; Com. v. Magee, 49 Am. Dec. 509; Knox v. Hexter, 42 N. Y. Super.
Ct. 496; Phillips v. Evans, 64 Mo. 24.)
A court has inherent power to preserve to a party the fruits of an appeal of which it has
jurisdiction, by ordering a stay of proceedings upon the giving of a bond sufficient to protect
the adverse party. (Credits Com. Co. v. Superior Court, 140 Cal. 82, 84.)
In City of Janesville v. Janesville Water Co., 61 N. W. 770, the court uses the following
language: We are not advised of the ground of the refusal of the circuit court to grant the
stay sought by the defendant, on terms, further than that it is contended that to grant or refuse
it was a matter entirely within the discretion of the court. This court has the inherent power by
virtue of its appellate jurisdiction, to grant the order applied for, and to restore the parties, so
far as may be, to their condition in respect to the matters affected by the order at the time it
was granted.
In State ex rel. Smith v. Sachs, 27 Pac. 1075, the court uses the following language: The
question for our determination is, Has the relator a right to file such a bond pending his
appeal? If he has it is the manifest duty of the respondent to order and fix the amount
thereof.
duty of the respondent to order and fix the amount thereof. * * * We are of the opinion that
the relator has a right to file such bond in this case, and that the respondent ought to
determine and fix the amount of the same.
The application is without merit.
The writ of prohibition is an extraordinary judicial writ, to be used with great caution and
forbearance for the furtherance of justice when there is no other regular and ordinary remedy.
It is not a writ of right but of sound discretion. (32 Cyc. 599, 600.) It will lie only in case of
manifest necessity, and after fruitless application for relief to the inferior tribunal. (Id. 602.) If
the lower court has jurisdiction of the parties and subject-matter it will not lie. (Id. 605.)
It will not lie if the appeal has not been perfected so as to operate as a stay of proceedings.
(Bliss v. Superior Court, 62 Cal. 543; White v. Superior Court, 110 Cal. 54.)
In this case the decree determined the rights of the parties, and gave the plaintiffs and the
defendants Wright a summary right to be put in possession of the properties involved as
against the makers of Exhibit D, and all others entering in subordination of their rights after
the commencement of the suit. Although the decree directed that the plaintiffs and the
Wrights be let into possession, that direction was not essential. (Horn v. Volcano Water Co.,
18 Cal. 143; Montgomery v. Tutt, 11 Cal. 192; Clarkson v. De Peyster, 1 Hopkins Ch. 422.)
It does not appear that the lower court is about to take any steps in the matter of a writ of
assistance, and we do not see that the question is involved here, yet, as some inquiry was
made from the bench during the course of the oral argument in relation to the power of the
court in the premises, we will say generally that a writ of assistance may be employed
whenever a court of equity, having jurisdiction of the persons and property in suit, has
determined the rights of the litigants to the title or possession of real estate. Equity abhors a
multiplicity of remedies, and a court of equity has the same power to put one whose right
has been established in possession of the premises as it has to put the purchaser at a
foreclosure sale in possession of the land bought by him.
put one whose right has been established in possession of the premises as it has to put the
purchaser at a foreclosure sale in possession of the land bought by him. (Harding v. Fuller,
30 N. E. 1053; 2 Ency. Pl. & Pr. 977; Montgomery v. Tutt, 11 Cal. 190; Kershaw v.
Thompson, 4 Johns. Ch. 609; Escrit v. Michaelson, 73 Neb. 634.)
In this case, inasmuch as the plaintiffs and defendants Wright are only entitled to
eleven-fifteenths of the properties, the writ would be executed by placing them in possession
of every part and parcel of the properties, jointly with the other tenants in common. (Tevis v.
Hicks, 38 Cal. 234.)
There has been no application to the respondent to fix the amount of an undertaking to stay
execution pending appeal, at least no such application as the law requires. The properties
covered by the judgment consist of mining claims. It has developed at the argument, stated by
counsel for petitioners, that several hundred men are employed in extracting ores; a mill
dropping 120 stamps, and improved machinery and facilities are engaged in converting such
ores into bullion. The very substance of the estate is being exhausted. The petitioners and
those holding under them are foreigners. The plaintiffs and defendants Wright are absolutely
without security or protection.
The respondents did not know, could not know, in what amount to fix the undertaking
under section 3440. It had no information as to the number of men employed or that will be
employed in mining and extracting ores; what number of stamps have been or will be
engaged in crushing the ores; the size of the ore veins or bodies, their nature or their value per
ton. It did not and could not know the gross or net value of the ores that may be extracted
during the appellate period. It was absolutely without data upon which to exercise its
judgment or discretion. It was not for the plaintiffs and defendants Wright to move in the
premises; they would be entitled to execute their judgment at any time after fifteen days after
the motion for a new trial should be overruled unless the petitioners should apply for and
furnish the undertaking provided by section 3440.
unless the petitioners should apply for and furnish the undertaking provided by section 3440.
The duty did not rest upon the successful party to furnish the facts necessary to move the
defendant's discretion. He was entitled to his execution, in the absence of a stay, and the stay
could not be granted only upon an application supported by facts sufficient to move judicial
discretion. (State v. Clements, 95 Pac. 846.)
The respondents are well within, and have taken no step beyond, their jurisdiction. The
petitioners have not lost, nor will they lose, by any contemplated proceeding in the court
below, any rights. If they desire the stay provided by section 3440 they may still obtain it by
complying with its terms.
Per Curiam:
This proceeding stands upon a petition for a writ of prohibition, to which a demurrer has
been interposed. It is sought to have the district court restrained from executing a writ of
assistance or proceeding to take evidence for an accounting to determine the amount of
damages in the action of B. A. Gamble and F. S. Chadbourne against L. J. Hanchett, these
petitioners and others, both of which have been ordered by that court. It is claimed the district
court was without jurisdiction and acted in excess of its discretion in making these orders,
and that therefore it should be enjoined from proceeding with the writ of assistance or
accounting. A proper understanding of the questions raised necessitates a reference to the
conditions and proceedings in the action mentioned. These are set out generally in the petition
for the writ. In the hearing in this court, the petitioners moved to amend the petition by
adding the pleadings in the original case, and claimed that there were no issues warranting the
aforesaid orders made by the district court. The respondents objected to this amendment and
the matter was taken under advisement. Permission is now granted petitioners to make the
amendment as requested, or the pleadings in the main case may be considered as a part of
the petition for the writ of prohibition, for they allege more fully the facts upon which
petitioners rely.
pleadings in the main case may be considered as a part of the petition for the writ of
prohibition, for they allege more fully the facts upon which petitioners rely.
These may be stated, briefly, so far as they are deemed material in determining whether the
writ should issue. The main action was brought on an agreement which provided for an
option to purchase and for the taking of possession and working for a specified period several
mines and other valuable property. A trial was had and, on the 6th day of February, 1909, the
district court rendered judgment in favor of the plaintiffs in the action and the defendants
Wrights, and against the defendants who are the petitioners here, for eleven-fifteenths of the
property, subject to the conditions of a certain option or right of entry into and possession of
the premises, and for an accounting or damages. The defendants, who are the petitioners here,
moved for a new trial, and their motion for a new trial was submitted on the 8th day of
November, 1909. On the 25th day of May, 1909, after notice and hearing and under objection,
the court ordered that a writ of assistance be issued. On that day respective counsel entered
into a stipulation that the operation of this writ be stayed to the 14th day of June, 1909, and to
such other time as the court might set, for hearing and taking of testimony for the
determination of the amount of the stay bond, and further stipulated that the bond as to its
form and the sufficiency of the sureties, or surety company or companies thereto, shall be
approved by the court or the judge thereof, and shall be to the end and substantially in form as
though upon an appeal and given under section 3440, Compiled Laws. After hearing on June
17, 1909, the court made an order that a bond in the sum of $150,000 be filed, and further
ordered that the defendants have ten days in which to prepare and file the bond, and on July
20, 1909, a bond in that amount was filed, and the execution of the writ of assistance was
stayed until fifteen days after the court's determination of the motion for a new trial. No
opinion on the motion for a new trial having been rendered, notice of appeal was filed on
the 22d day of January, 1910, the day previous to the time for appeal from the judgment.
for a new trial having been rendered, notice of appeal was filed on the 22d day of January,
1910, the day previous to the time for appeal from the judgment.
On the 27th day of January, 1910, the court made the following order: It appearing to the
court from the statement of the Honorable S. Platt, attorney for defendants, that it is necessary
for the court at this time to fix the amount of the undertaking on appeal by certain of the
defendants from the judgment heretofore rendered in the above-entitled case, to stay
execution of said judgment, in so far as the possession of the lands and premises may be
concerned, and it further appearing from telegram from attorney for plaintiffs that a
$1,000,000 bond is requested to stay execution, and it further appearing from said telegram
that plaintiffs' consent to a temporary stay of execution, and it further being within the
judicial knowledge of the court that the court by reason of other engagements urgent in
character is unable to give the matter proper consideration at this time, it is therefore ordered
that the defendant may file a bond on appeal from said judgment temporarily in the sum of
$300, and that execution be stayed temporarily upon the filing of said bond, and the court
hereby reserves unto itself the right to hereafter establish the amount of bond to be
permanently used in the stay of said execution, and the court directs that on Saturday, the
12th day of February, 1910, he will hear proofs from plaintiffs and defendants as to the
amount of the permanent bond to be filed in staying execution hereunder. This action being
done, and this order being herein entered for the reason that the court is unable to give it due
consideration, ordered that the clerk furnish counsel with a copy of this order.
Thereupon exception was taken to the order upon the following grounds:
(1) That said order is erroneous in so far as the court reserves the right to establish and fix
the amount of the bond to be permanently used in staying execution, in this: that upon filing
notice of appeal and bond on appeal said court is ousted of and has no jurisdiction further
to make any order whatsoever in reference to the bond on appeal or in reference to the
judgment appealed from or any matter embraced therein.
appeal said court is ousted of and has no jurisdiction further to make any order whatsoever in
reference to the bond on appeal or in reference to the judgment appealed from or any matter
embraced therein.
(2) That said order is erroneous, in this: that it attempts to fix the amount of bond to
temporarily stay execution, when under the law said order fixing the amount of the bond stays
execution pending the appeal.
(3) Said order is erroneous, in this: that it attempts to fix the time during which the bond
required by said order shall stay execution, whereas the time during which said bond shall
stay execution is fixed by law, to wit, sections 3440-3441 of the Compiled Laws of Nevada
(Cutting's Ed.).
(4) Said order is erroneous in so far as it attempts to set and name a date for hearing proof
as to the amount of the permanent bond to be filed in stay of execution.
(5) That said order fixes the amount of bond necessary to be filed to stay execution, and
that in all other respects said order is erroneous.
On the same dayJanuary 27, 1910a bond was filed providing for $300 for the costs of
appeal, and for $300 conditioned that during the possession of the premises by the appellants
they will not commit waste, and that, if the judgment be affirmed, they will pay the value of
the use and occupation of the premises until the delivery of the possession, not exceeding that
amount.
On February 16, 1910, the court made the following order: This being the time and place
heretofore fixed by the order of the court made and entered on the 7th day of February, 1910,
in which to hear proof with respect to fixing the amount of an undertaking to be furnished by
the defendants on the appeal from the judgment heretofore entered, in the above-entitled
cause, for the purpose of staying the execution of said judgment, in so far as the possession of
the lands and premises involved in the said judgment are concerned, the plaintiffs and
defendants Wrights being represented by counsel, and the other defendants being also
represented by counsel, and whereas no evidence is at this time offered by the parties
appearing asking the court to fix the amount of said undertaking as to the amount of the
same, and the court, being without sufficient information in the premises, is unable at this
time to intelligently establish the amount of the undertaking contemplated under the
provisions of section 3440 of the Compiled Laws of the State of Nevada, it is therefore
ordered that the further hearing of this matter be continued until such time as the parties
to this action desiring the undertaking upon an appeal to be established by this court
upon proper notice to the plaintiffs, and upon presenting to the court such competent
information, as will enable the court to intelligently establish the amount of the required
undertaking.
sel, and whereas no evidence is at this time offered by the parties appearing asking the court
to fix the amount of said undertaking as to the amount of the same, and the court, being
without sufficient information in the premises, is unable at this time to intelligently establish
the amount of the undertaking contemplated under the provisions of section 3440 of the
Compiled Laws of the State of Nevada, it is therefore ordered that the further hearing of this
matter be continued until such time as the parties to this action desiring the undertaking upon
an appeal to be established by this court upon proper notice to the plaintiffs, and upon
presenting to the court such competent information, as will enable the court to intelligently
establish the amount of the required undertaking. Notice herein required shall be filed and
served at least ten days before the time set for hearing.
Exceptions were taken to this order on the same grounds as presented against the former
order, and upon the further ground that the court has no jurisdiction to enforce the operation
of the writ of assistance or to modify or change its order fixing a temporary stay bond of
$300, or to make any additional order in furtherance of the judgment entered in the case for
the reason that an appeal had already been perfected. Before the last-mentioned order was
made, the court made one vacating its original order of the 27th day of January, 1910, fixing a
temporary stay bond in the sum of $300. Exception was taken to this order on the same
grounds, and it was further objected that the vacating of the order deprived the defendants of
any relief as against the operation of the writ of assistance, and was arbitrary and without the
jurisdictional power of the court. On the 7th day of February, 1910, the court denied the
motion for a new trial.
On behalf of the petitioners it is contended:
(1) That the judgment appealed from awards possession under a mere license to enter a
mine contained in an option, and not by virtue of title to or ownership of the property, and is
not a judgment directing delivery or possession of real property within the meaning of
section 345 of the practice act; that no writ of assistance can legally issue on such a
judgment, nor can any bond be legally executed as a condition of staying its enforcement.
possession of real property within the meaning of section 345 of the practice act; that no writ
of assistance can legally issue on such a judgment, nor can any bond be legally executed as a
condition of staying its enforcement.
(2) That the judgment appealed from not being a judgment directing the delivery of real
property within the meaning of section 345 of the practice act, the case falls under section
349, which makes the $300 cost bond filed under section 341 a statutory supersedeas or stay,
and that no special stay bond was required.
(3) That all proceedings under the judgment appealed from having been stayed by virtue of
section 349 of the practice act, and by the filing of the $300 cost bond under section 341 on
January 27, 1910, the court was prohibited by section 346 from thereafter proceeding in any
way under the judgment, and that the appeal was then perfected and the case was in the
appellate court.
(4) That the judgment appealed from is a final one, from which an appeal will lie.
(5) That the writ of prohibition should issue because there was a statutory supersedeas by
the filing of the cost bond for $300 under section 349 of the practice act, which deprived the
lower court of jurisdiction to proceed further, and because, aside from any question as to
whether there was a statutory supersedeas, the court exceeded its legitimate powers as a court
of equity in attempting by its judgment to oust the defendant corporation, the Silver Peak
Mining Company, from its valuable mining properties, which are in operation, and to place
plaintiffs in possession by a writ of assistance in order that they might work the mines and
ascertain if they cared to purchase, and in exacting an enormous bond as a condition of the
defendant retaining possession of its own property. It is said that this is a judicial abuse or
usurpation of power and jurisdiction that is not vested in any court of law or equity.
Did the district court exceed its jurisdiction in rendering a judgment for the possession of
the premises and for an accounting, or by ordering the writ of assistance, and has there
been a permanent stay of judgment?
an accounting, or by ordering the writ of assistance, and has there been a permanent stay of
judgment? If these questions are answered in the negative, the law applicable is well settled
that the proper method for having the proceedings complained of remedied is by appeal.
In Low v. Crown Point Mining Company, 2 Nev. 75, it was held that an interlocutory order
made in the court below could not be reviewed by writ of prohibition, and that such orders
were subject to review on appeal from the final judgment.
Hawley, C. J., speaking for this court in Walcott v. Wells, 21 Nev. 50, 9 L. R. A. 59, 37
Am. St. Rep. 478, said: 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 object of the writ is to restrain
inferior courts from acting without authority of law in cases where wrong, damages, 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. Watson, 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 counterclaim.
arose as to whether or not the action was dismissed before the filing of defendant's answer
setting up a counterclaim. 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. * * *
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 furnished 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.' (93 Mo. 252; 11 S. W. 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. Patton v. Houston, Judge, 40 La. Ann. 393, 4 South. 50,
8 Am. St. Rep. 532; State ex rel. Mayer v. Rightor, Judge, 40 La. Ann. 839; Wilson v.
Berkstresser, 45 Mo.
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, 5 Utah, 410, 16 Pac. 405; Powelson v. Lockwood, 82 Cal. 615; High, Extr.
Rem., sec. 765, et seq.
The cases are very numerous supporting these conclusions regarding the purposes for
which writs of prohibition may issue. The doctrine that the writ cannot ordinarily be used for
the correction of errors in inferior tribunals, but that relief must be sought in one of the
appropriate proceedings provided by law, and that the writ will not issue where there is an
adequate remedy by appeal or writ of certiorari, is supported by many well-considered
decisions on this subject. The same rule applies to criminal prosecutions. A long list of cases
sustaining this doctrine are cited in the note in 1 Am. & Eng. Cases, at pages 713-715,
following the opinion in State ex rel. Arthur Brown v. District Court, taken from 27 Utah,
336, 75 Pac. 739. It was held there that the writ would not issue to restrain the district court
from proceeding with the trial of a case upon the ground that the necessary steps preliminary
to the institution of the criminal prosecution had not been taken. It was said that, if the lower
court had jurisdiction of the subject-matter, it was authorized to decide as to the sufficiency of
the preliminary proceedings, and that the remedy of the defendant was by appeal. A list of
cases is cited in support of the statement in the note mentioned, that even an erroneous
decision of a jurisdictional question is not ground for issuing a writ of prohibition if the court
had jurisdiction of the general class of actions to which the particular case applies, since there
is an adequate remedy by appeal.
Petitioners refer us to a number of cases holding that, when the requisites for an appeal
have been complied with and a supersedeas bond has been given, the writ of prohibition will
issue to prevent the court from proceeding to enforce the judgment. If those decisions be
regarded as correct, they are not applicable here unless a stay bond has been given and is
now in force, or unless under the statute an appeal stays execution without such a bond,
and we are unable to see wherein the judgment and order for the writ of assistance were
without the jurisdiction of the district court, or that execution has been stayed pending
the appeal.
has been given and is now in force, or unless under the statute an appeal stays execution
without such a bond, and we are unable to see wherein the judgment and order for the writ of
assistance were without the jurisdiction of the district court, or that execution has been stayed
pending the appeal. The action having been brought to recover the possession of real estate on
an agreement containing a provision for the taking of possession and working of the mines by
the plaintiffs, the district court had original jurisdiction to try the case and to hear and
determine the issues involved. Whether the court properly or improperly concluded that the
contract could be enforced in equity after the period provided by its terms when compliance
had been delayed or prevented by the defendants, and whether the court properly or
improperly ordered judgment in favor of the plaintiffs for the possession of the premises and
for an accounting or damages for the failure or refusal of the petitioners to let the plaintiffs
into possession under that agreement is not before us now for decision. If the court erred
regarding these matters, which it was its duty to decide, its action is subject to review, and
error, if any, to correction, by the ordinary methods of appeal. If every judgment which is
erroneous, or which is unsatisfactory to the parties against whom it was rendered, could be
reviewed by writ of prohibition, it might be advantageous to abolish the statutes providing for
appeals. If prohibition would be the proper remedy to review and set aside the judgment in
this action, it would be so in other cases as ordinarily appealed.
It is claimed that the ordering of the accounting was without the jurisdiction of the district
court because no accounting was demanded in the complaint. By that pleading the plaintiffs
sought to have the contract enforced and also asked for general relief, and the statute provided
that, where parties appear, the court may grant any relief consistent with the case made by the
complaint and embraced within the issue. Again, this was a matter for the court to decide,
and, if it erred, the remedy would be by appeal.
the remedy would be by appeal. Whether judgment was final as claimed or not, we need not
determine, for, whether final or not, the statute expressly requires that the execution shall not
be stayed under such judgment unless a bond in an amount to be fixed by the judge be given.
However, it is now claimed on behalf of the petitioners that the case does not come under
section 3440 of the Compiled Laws, which is section 345 of the practice act, and which
contains the following language: If the judgment or order appealed from direct the sale or
delivery of possession of real property, the execution of the same shall not be stayed unless a
written undertaking be executed on the part of the appellant, with two or more sureties, to the
effect that during the possession of such property by the appellant he will not commit nor
suffer to be committed, any waste thereon, and that if the judgment be affirmed he will pay
the value of the use and occupation of the property from the time of the appeal until the
delivery of possession thereof, pursuant to the judgment or order, not exceeding a sum to be
fixed by the judge of the court by which the judgment was rendered or order made, and which
shall be specified in the undertaking.
As the judgment is for the possession of real property, it clearly comes within this section;
and whether the judgment is final or not, and whether an appeal by the regular notice and the
usual $300 cost bond was taken or not, the execution is not stayed unless a bond in an amount
fixed by the judge to stay the execution pending appeal was given and is now in force. By the
stipulation in the lower court regarding a bond to be given in compliance with that section,
petitioners became estopped to deny that the section governed the undertaking to stay
execution in the case, or to assert, as they have done, that the other sections controlled the
stay bond. This is not the first time that we have had occasion to hold that the parties are
estopped to rely in this court upon a position the reverse of that taken by them in the district
court.
In Strong v. Willey, 104 U. S. 512, 26 L. Ed. 642, it was held that by referring the matter in
controversy to an arbitrator, with a stipulation that his report should be the basis of a decree,
the parties waived the objection that the remedy was at law. As the presumptions are in favor
of the judgment of the district court, and the statute gives the successful plaintiffs the right to
an execution unless a bond to stay it pending the appeal is given in an amount fixed by the
judge, so as to protect the plaintiffs during the appeal, as provided by the statute, it cannot be
said the court has lost jurisdiction to issue a writ of assistance. The $300 bond for costs on
appeal must be given within five days after the filing of the notice of appeal, but the statute
does not provide any period regarding stay bonds, and it has been held that they may be given
at any time before the execution has been executed. The bond to stay the execution pending
appeal should be so ordered and conditioned as to protect the party entitled to the execution
pending appeal.
We are unable to see how the $300 bond can have this effect, or can be regarded as a
permanent stay bond pending appeal, as contended, when that bond was fixed and ordered by
the court at a time when it was unable to give the matter due consideration with the express
reservation that it was to be temporary, that the execution was to be stayed temporarily upon
its filing, and that the court reserved the right to thereafter establish the amount of the bond to
be permanently used in the stay of the execution, and at the same time fixed the 12th day of
February, 1910, for hearing proofs, as to the amount of the permanent bond to be filed for
staying execution. It would seem that this bond was comparatively nominal, and was intended
to cover a brief period, in view of the fact that the court fixed $150,000 as the amount of an
undertaking to stay execution pending the motion for a new trial, and until fifteen days
thereafter. As no amount has been fixed by the judge for an undertaking to stay execution
pending the appeal, as contemplated by the statute, it is his duty upon application to fix some
amount which will be reasonable and sufficient to protect the parties in whose favor the
judgment was rendered pending appeal.
fix some amount which will be reasonable and sufficient to protect the parties in whose favor
the judgment was rendered pending appeal. No doubt, if the defendants regard the amount
suggested or contemplated to be fixed as too large, they can easily make a showing to the
judge for a reduction, as they are in possession of and working the property and extracting
large quantities of ore, and must be informed regarding its output, or in possession of facts
which would indicate the amount of any probable damages which the plaintiffs in the action
might sustain.
The complaint of respondents that they are deprived of an opportunity to prevent the
execution of the writ of assistance by the order of the court continuing the hearing for fixing
the amount of the undertaking to stay the writ pending the appeal to such time as the parties
desiring the undertaking upon ten days' notice to the plaintiffs present such competent
information as will enable the court to intelligently fix the amount of the undertaking in
connection with the order vacating the temporary stay which had been granted on the $300
bond would be a just one if respondents had not brought about these orders and this condition
of affairs themselves by failing, when given an opportunity, to furnish the court with the
proper information regarding the amount of the bond at the time fixed for that purpose, and
making no excuse for not giving this information, nor offer to supply it at any definite time
later, and by failing to offer a further temporary stay bond until the amount of a permanent
one might be fixed, and by contending that the $300 bond accepted by the court only as a
temporary one effected a permanent stay. Under these circumstances, we cannot assume that
the district judge would not, upon application, with a temporary bond have again stayed
execution temporarily until the ten days' notice could be given and the permanent undertaking
properly fixed. Although respondents are clearly entitled to a stay pending the appeal upon
giving the necessary undertaking, it is not apparent that they have any just ground for
complaint while they block the way by failing to supply the judge with information
regarding the value of the ore and occupation of the property and possible waste, so that
the right amount for an undertaking to warrant a stay may be determined.
the way by failing to supply the judge with information regarding the value of the ore and
occupation of the property and possible waste, so that the right amount for an undertaking to
warrant a stay may be determined.
In Hayne on New Trial and Appeal, sec. 219, it is said: The rule stated in the foregoing
extract seems to be this: That, where the judgment is for the delivery of the possession of real
property, the undertaking must provide against waste and for the payment of the value of the
use and occupation. * * * Where the only undertaking given was one in the sum of $300 and
another in an amount fixed by the judge to provide for waste and the value of the use and
occupation, it was held that there was no stay, and the sheriff was ordered to proceed with the
sale. (Societe D'Epargnes v. McHenry, 49 Cal. 351.)
And in Freeman on Executions, sec. 32: It is the general practice of the losing party to ask
and for the court to grant a stay of execution for some designated period after the entry of
judgment for no other reason than that he is not yet ready to comply with the judgment, or
perhaps in view of proceedings by appeal or for a new trial. These stays generally result in
delay, and sometimes in the defeat of justice, and the courts ought to be very cautious in
granting them, except in cases where the ultimate satisfaction of the judgment by the
defendant is assured. The power, however, to grant such stays of execution is everywhere
conceded, and it could not be limited by the enactment of any unvarying rule without
encountering evils of greater magnitude than those sought to be suppressed. The exercise of
this power will sometimes be reviewed by the appellate courts, but never unless capriciously
exercised or abused.' In some of the states, stay laws are in force, under which defendants on
giving security may delay the issuing of execution. * * * A party moving for a new trial, or
prosecuting an appeal from a judgment, ordinarily finds it necessary to obtain a stay of
execution. Neither of these proceedings results in such stay until the undertaking or other
security required by statute has been given. (Fulton v. Hanna, 40 Cal.
Hanna, 40 Cal. 278; Ela v. Welch, 9 Wis. 395; Thomas v. Nicklas, 58 Iowa, 49; Eakle v.
Smith, 24 Md. 339; Kilbee v. Myrick, 12 Fla. 416; Ex Parte Floyd, 40 Ala. 116; Castro v.
Illies, 22 Tex. 479, 73 Am. Dec. 277; Tucker v. State, 11 Md. 322; Branigan v. Rose, 3
Gilman (Ill.) 123; Johnson v. Goldsborough, 1 Har. & J. (Md.) 498; People v. Luocks, 28
Cal. 68.)
During all the time that this court has been in existence the writ of prohibition has been
rarely issued.
In People v. District Court, 32 Colo. 472, 77 Pac. 240, it is said in the opinion: These
applications invoking the original jurisdiction of this court are becoming altogether too
frequent, and excepting in extreme cases where the right to the extraordinary relief clearly
appears, and the usual remedy is not full, speedy, and adequate, we are disposed to remit the
parties to their ordinary remedies which, in most cases, prove efficacious, and which, in this
case, we believe will be so. The writ ought to issue freely whenever it is necessary for the
protection of the rights of a litigant and he has no other plain, speedy, and adequate remedy.
To order it in this case would deprive the respondents of a writ of assistance to which they are
entitled, unless the petitioners give an undertaking to stay execution pending the appeal, as
required by the statute.
The petition for the writ is denied, and the order heretofore made holding in abeyance or
temporarily restraining action by the district court is rescinded.
____________
33 Nev. 125, 125 (1910) In Re Primary Ballots
[No. 1829]
In Re PRIMARY BALLOTS
In the matter of the application of Leonard B. Fowler, for an order directing the County
Clerk of Ormsby County, Nevada, to correct certain omissions in primary election ballots.
Rehearing granted, and on rehearing decision modified by Justices Talbot and Sweeney.
Leonard B. Fowler, deputy attorney-general and a qualified elector of Ormsby County,
State of Nevada, has filed with each of the justices of the supreme court an affidavit
authorized by and made in pursuance of the provisions of section 29 of the act in relation to
primary elections (Stats. 1909, pp. 273-291), praying for an order directing E. O. Patterson,
county clerk of Ormsby County, forthwith to desist from certain alleged wrongful acts
committed, or about to be committed, and to correct certain alleged errors in the printing of
the sample and official ballots for the primary election to be held on the 6th day of
September, 1910.
Affiant has attached as exhibits, and made a part of his affidavit, sample ballots prepared
by the county clerk of Ormsby County and, under his authority and direction, printed for use
in said county for the Demooratic [Democratic] and Socialist parties. He also alleges a defect
existing in the sample ballot printed for the use of the Republican party.
The affidavit further alleges that affiant is a member of and affiliates with the Democratic
party; that at said primary election your affiant desires to vote for some qualified persons to
fill the following offices and to be candidates of the Democratic party for said offices: Justice
of the supreme court, superintendent of public instruction, district attorney, justice of the
peace, and regent of the university, short term. That for said various offices no Democrat has
filed a petition which would entitle his name to be printed upon the Democratic ballot.
various offices no Democrat has filed a petition which would entitle his name to be printed
upon the Democratic ballot. That your affiant desires to write in a blank space his choice for
his party nominee for the various offices heretofore set forth. * * * That on said primary
election ballot (sample, Democratic party) the following officers are omitted therefrom:
Justice of the supreme court, superintendent of public instruction, district attorney, justice of
the peace, and regent of the state university, short term. * * *
That your affiant also alleges that he has a copy of the sample primary election ballot of
the Socialist party, Ormsby County, Nevada, and that there is printed thereon the names of the
candidates for the following offices: Choice for U. S. senator, representative in Congress,
governor, lieutenant-governor, regent of state university, long term, and that the names of all
other officers to be filled at the election in November of this year are omitted therefrom. * * *
That affiant alleges that the same facts of omission that apply in regard to the primary
election ballot of the Democratic party also apply in regard to the Republican party in the case
of the office of district judge and that unless this error is corrected on the Republican official
ballot the Republican voters of Ormsby County will be deprived of the privilege of
expressing their choice of a nominee for judge of the district court of the first judicial
district.
The affidavit further recites that the office of attorney-general has heretofore, upon request
of an opinion from the district attorney of Nye County, rendered the following opinion in
reference to primary ballots:
Primary act says that to vote for a person whose name appears on the ballot stamp a cross
(X) at right of name. Inference is that there exists the privilege of in some way voting for
persons whose names are not on the ballot. I therefore advise that blank spaces be printed on
the ballot for all officers where there are no printed names and under each group of names as
provided in the act.
Upon the hearing our attention has been called to what purports to be sample ballots for
the various parties printed for use in other counties in the state, under the direction of the
clerk thereof, from which it would appear that there is not, upon the part of the various county
clerks, a uniform construction of the law in relation to sample ballots.
The following excerpts from various sections of the primary act will aid in a determination
of the questions presented:
Section 1. * * * This statute shall be liberally construed, so that the real will of the
electors shall not be defeated by any informality or failure to comply with all provisions of
law in respect to either the giving of any notice or the conducting of the primary election or
certifying the results thereof.
Sec. 4. 1. At least sixty days before the time for holding such September primary election
* * * the secretary of state shall prepare and transmit to each county clerk, * * * a notice in
writing designating the offices for which candidates are to be nominated at such primary
election. * * *
3. In the case of the September primary elections for the nomination of candidates for city
and county offices * * * the city clerk * * * shall cause the publication of notice of such
primary election, together with a complete statement of the offices for which candidates are to
be nominated. * * *
Sec. 5. The name of no candidate shall be printed on an official ballot used at any primary
election unless * * * a nomination paper shall have been filed in his behalf as hereinafter
provided by this act. * * *
Sec. 10. At least twenty-five days before any September primary election * * * the
secretary of state shall transmit to each county clerk of any county a certified list containing
the names * * * of each person for whom nomination papers have been filed in the office of
secretary of state and who is entitled to be voted for in such county at such primary election,
together with a designation of the office for which such person is a candidate and of the
party or principle he represents.
designation of the office for which such person is a candidate and of the party or principle he
represents.
Such county clerk shall forthwith, upon receipt thereof, publish under the proper party
designation the title of each office, the names and addresses of all persons for whom
nomination papers have been filed, the date of the primary election. * * *
Sec. 12. 1. All voting at the primary elections within the meaning of this act shall be by
ballot. * * * It shall be the duty of the county clerk of each county to provide such printed
official ballots to be used at any September primary election for the nomination of candidates
to be voted for * * * at the ensuing November election. * * * The names of all candidates for
the respective offices for whom the prescribed nomination papers have been duly filed shall
be printed thereon.
2. Official primary election ballots * * * shall be * * * as long as herein-prescribed
captions, heading, party designations, directions to voters and lists of names of candidates,
properly subdivided according to the several offices to be nominated for, may require; * * *.
4. At least three-eighths of an inch below the voting precinct designation and the date of
the primary election shall be printed * * * the following instructions to voters: To vote for a
person whose name appears on the ballot, stamp a cross (X) in the square at the right of the
names of the person for whom you desire to vote.'
5. The instructions to voters shall be separated from the lists of candidates and the
designations of the several offices to be nominated for. * * * The names of the candidates and
the respective offices shall * * * be printed on the ballot. * * *
7. * * * Under each group of names of candidates shall be printed as many blank spaces,
defined by light lines or rules, three-eighths of an inch apart, as there are to be candidates
nominated for such office. * * *
8. At the bottom of the last column on any official primary election ballot * * * there
shall be left one blank space defined by light lines or rules three-eighths on [of] an inch
apart and which shall be preceded by the words 'County Committeman.'"
blank space defined by light lines or rules three-eighths on [of] an inch apart and which shall
be preceded by the words County Committeman.'
Subdivision 9 of section 12 sets out substantially the form in which the primary ballot
shall be printed. This form, under the heading State and District, contains, in the enrolled
bill, the names of all state and district officers to be elected by the people, excepting that of
inspector of mines and clerk of the supreme court, the bill creating the former office having
become a law subsequent to the approval of the primary act, and the latter office not having
been considered an elective office for many years prior to the passage of said act (State v.
Douglass, 33 Nev. 82); also the names of all county and township offices. Under each office
designationU. S. Senator, Representative in Congress, Governor and
Lieutenant-Governorappear three fictitious printed names, representing candidates, and
the direction Vote for one. Below these names appears no blank space. Under all the
remaining designations of the state, district, county and township offices and the directions
Vote for one, Vote for three, as the case may be, appear three blank spaces, without any
fictitious names.
Sec. 14. * * * On the tenth day before such primary election the county clerk shall correct
any errors or omissions in the ballot. * * *
Sec. 19. The voter shall designate his choice on the ballot by stamping a cross (X) in the
small square opposite the name of each candidate for whom he wishes to vote. * * *
Sec. 24. The person receiving the highest number of votes at a primary election as the
candidate for the nomination of a political party for an office shall be the candidate of the
party for such office, * * * and the elector receiving the highest number of votes of his party
in his precinct for county committeeman shall be the county committeeman of his party for
the ensuing two years. * * *
Sec. 25. The county committee of any party shall consist of one member from each
voting precinct in such county, elected at the last preceding primary election.
consist of one member from each voting precinct in such county, elected at the last preceding
primary election. * * *
Sec. 27. Vacancies occurring after the holding of any primary election shall be filled by
the party committee, * * * as the case may be.
Sec. 31. Any person who, being in possession of any nomination paper or papers and
affidavits entitled to be filed under the provisions of this act, shall wrongfully either suppress,
neglect or fail to cause the same to be filed at the proper time and in the proper place shall be
guilty of a misdemeanor. * * * Any act or omission declared to be an offense by the general
laws of this state concerning primaries and elections shall also in like case be an offense
concerning primary elections as provided for by this act, and shall be punished in the same
manner and form as therein provided, and all penalties and provisions of the law governing
elections, except as herein otherwise provided, shall apply in equal force to primary elections
as provided for by this act. Our primary election act was doubtless copied, in the main, from
a bill pending in the legislature of the State of California, which bill became a law March 24,
1909, one day later than the approval of the primary act of this state. (Stats. Cal. 1909, p.
691.) This is evidenced by the fact that the act adopted in this state is in the main the same as
the California act, having many identical provisions as well as a number of provisions found
in the California act which are incongruous with political conditions in this statefor
example, provisions such as the appointment of congressional and assembly district
committees. The act appears to have been hastily prepared and adopted and the intention of
the legislature has not in all cases been made clearly manifest from the letter of the act. This
want of definiteness of expression has occasioned a contrariety of construction upon the part
of various county clerks, hence this proceeding.
Does the law require the printing on the primary ballot of every political party the name of
every elective office for which a candidate or candidates may be nominated at such
primary election, even though no candidate has filed nomination papers requiring his
name to be printed on the ballot?
for which a candidate or candidates may be nominated at such primary election, even though
no candidate has filed nomination papers requiring his name to be printed on the ballot? We
think the law certainly makes provisions for such printing. The form of the ballot to be
substantially followed, set out in subdivision 9 of section 12, sets out the name of every
elective office then known by the legislature to be such, some with and some without names
of candidates following. Subdivisions 2 and 5 of section 12 both make specific mention of the
printing on the ballot of office designations. Subdivision 1 of section 4 requires the secretary
of state to certify to the several county clerks a notice designating the offices for which
candidates are to be nominated. Subdivision 2 of the same section requires the clerk to
publish such list. Section 10 provides for the certifying by the secretary of state of the names
of all candidates who have filed nomination papers, together with the designation of the
office for which each person is a candidate, and that upon receipt of such certificate the
county clerk shall forthwith publish under the proper party designation the title of each
office, the names * * * of all persons for whom nomination papers have been filed, etc.
Nowhere in the act is there any expression or intimation that the office designation is not
to be placed on the ballot unless some candidate has filed nomination papers. Upon the
contrary, we think, from the reading of the various sections, it is clear the legislature intended
to provide for the placing of the names of all elective offices on all party primary ballots.
The next question presented is: Did the legislature intend that there shall be placed below
each office designation one or more blank spaces, equal to the number of candidates to be
nominated for the particular office, as the case may be, where there are no names of
candidates printed on the ballot, and to follow such names where there are such so printed?
We think such is the proper construction of the act. It is true the form of the ballot, set out
in the statute to be substantially complied with, does not contain a blank space below the
fictitious names of candidates, and this has doubtless misled a number of the county
clerks.
substantially complied with, does not contain a blank space below the fictitious names of
candidates, and this has doubtless misled a number of the county clerks. Upon the other hand,
where there are no purported names of candidates under an official designation there are three
blank spaces, in each instance, although in most of the cases only one nominee could be voted
for. It would seem that this form was prepared with regard more for its appearance to the eye
than as an attempt to follow very carefully the statutory provisions prescribing how it should
be prepared. Even the instructions to voters, as printed in the form, uses the word mark
where the controlling statutory provisions use the word stamp. The form of ballot appearing
in the statute is intended as an aid to the clerk in preparing the ballot, but the form must give
way to specific provisions of the statute where there is a conflict in substantial particulars.
Section 7, supra, provides that under each group of names of candidates shall be printed
as many blank spaces * * * as there are to be candidates nominated for such office.
The word group, as used in the foregoing paragraph of the section, does not mean that
blank spaces are to be placed on the ballot only where there are two or more candidates
whose names appear following the name of the office, as is manifest by the use of the same
word in other provisions of the act, particularly in sections 5 and 6. For example, take the
expression: Each group shall be preceded by the designation of the office for which the
candidates seek nomination and the words Vote for one' or Vote for two' or more, according
to the number to be nominated. This provision of our statute is identical with the provision
in the California statute and the form of the ballot set out in the California statute gives a
group of fictitious names following each office designation, but this provision has been
construed by the Supreme Court of California to mean that there shall be a blank space below
such office designation, even though the name of no candidate is printed on the ballot.
(Fickert v. Zemansky, 10S Pac.
108 Pac. 269). Any other construction would be unreasonable and would fail to carry out the
manifest intent of the legislature. As this court said in State v. Clark, 21 Nev. 337: 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.
Having determined that it was the intention of the legislature to provide for placing on the
ballot the names of all office designations, for which offices candidates are to be nominated,
together with a blank space, we come to consider what was the intention of the legislature by
such provision.
It is manifest if such blank space cannot be used for any purpose, it is mere surplusage,
and had better be left off the ballot, for, in such case, it could only serve to confuse the voter,
and in many instances might be the means of preventing his ballot from being counted.
Appearing on the ballot, the conclusion of the voter might be that the blank space was
intended for him to write in the name of his choice if he so desired. We cannot impute to the
legislature a deliberate intent to deceive the voter by the provisions of an act the purpose of
which was to place in the hands of the entire membership of a party the control of party
nominations. It is a cardinal rule of statutory construction that statutes shall be construed if
possible so as to give all the language effect.
That these blank spaces are intended for the voter to write in the name of his choice for a
candidate for a particular office, in a case where there are no printed names of candidates, or
he is not satisfied to vote for any of the candidates whose names are printed on the ballot, is
made entirely clear in the provisions of the California act. In addition to the provisions for
instructions to voters contained in subdivision 4 of section 12 of our act, supra, subdivision 4
of the California act contains the additional provision: To vote for a person whose name is
not printed on the ballot, write his name in the blank space provided for that purpose."
space provided for that purpose. If it could be said that our act was copied from the
California act and that we could presume that the legislature knew of this provision, then
there would be room for argument that this provision was left out of the Nevada act ex
industria, and, hence, a manifestation of an intent that such provision of the adopted act
would not be incorporated into our laws. But we do not know and cannot say how this
provision read in the bill pending before the California legislature. Our subdivision 4 may
have been a literal copy from subdivision 4 as it appeared in the proposed California measure
at the time of the preparation of the bill introduced in the Nevada legislature, and the
California measure may have subsequently been amended in the particular mentioned to
make more clear the purpose of other existing provisions. In any event, the mere fact that the
California act contains a specific provision directly authorizing the writing in of names of
candidates by the voters, cannot, of itself, be advanced as an argument that the Nevada
legislature did not intend so to provide, for the reason, before stated, that the Nevada act
became a law prior to the California act. The intention of the legislature of this state must be
gathered from the provisions of our act, independent of the reading of said subdivision 4 of
the California act.
Nowhere in the act is there any express provision that no name shall appear on the ballot
except those printed thereon. Section 5, supra, provides that the name of no candidate shall
be printed on an official ballot * * * unless a nomination paper shall have been filed, etc.
Ought we to interpolate after the words be printed in the section supra the words or
otherwise appear? We must do so, if there can be no candidates for a nomination for an
office, except those who have filed petitions. But the reading of these words into the section
renders meaningless and destroys the force of all provisions of the act relative to blank spaces
and the printing of official designations, where there are no printed candidate's names. Such a
construction is not permitted if it can be avoided.
The very language of section 5, however, taken by itself would indicate that there might be
candidates other than those whose names are printed on the ballot. Taking that section alone,
the reasonable construction, we think, would be that if a candidate wants his name printed on
the ballot he must file a nomination paper. Reading section 5, together with other provisions
of the act, particularly section 12, and it is clear, we think, that candidates whose names may
appear upon the ballot are not limited to those whose names may lawfully be printed on the
ballot. Subdivision 1 of section 12, among other things, provides The names of all
candidates for the respective offices for whom the prescribed nomination paper have been
filed shall be printed thereon.
[NoteItalics, where used in this opinion, are ours.]
This language of itself does not imply that there can be no candidates other than those
whose names are printed on the ballot. Certainly such intention ought not to be imputed in the
face of other provisions indicating that names may appear thereon otherwise.
As was said by this court in Roney v. Buckland, 4 Nev. 57: In the interpretation of any
phrase, sentence or section of a law, the first thing to be ascertained is the ultimate and
general purpose of the legislature in the enactment of the law. When that is known or
ascertained, then every sentence and section of the entire law should be interpreted with
reference to such general object, and with a view of giving it full and complete effect,
extending it to all its logical and legitimate results. That object must, of course, be ascertained
from the act itself. But the whole act must be taken together, and when the general object is
apparent any fugitive expression, or any sentence which it is impossible so to interpret as to
make it accord with and further such general object must be ignored entirely. (Bank v.
Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v. Toll Road, 10 Nev. 155; Ex Parte
Silenhauser, 14 Nev. 365; 1 Kent's Comm. 461; Sutherland's Statutory Cons., sec. 241.)
In State v. Ruhe, 24 Nev. 261, this court quoted with approval the following from Black
on Interp.
approval the following from Black on Interp. Laws, p. 83: No sentence, clause, or word
should be construed as unmeaning and surplusage if a construction can be found legitimately
which will give force and preserve all the words of the statute. It is a canon of construction
that, if it be possible, effect must be given to every word of an act of parliament.' * * *
The purpose of the primary act was to place in the entire electorate of a party the power to
directly name party candidates for office and to do away with the old system of making such
nominations through the means of delegates elected to a convention. The main purpose of the
primary act is very distinct from the object sought to be accomplished by what is familiarly
known as the Australian ballot law. The latter law was designed to protect the voter at general
elections from any undue influence in casting his ballot in a manner other than in accordance
with the dictates of his own will. This law has always been construed with this main end and
purpose in view. That act makes secrecy the greatest means of protecting the voter in the free
exercise of his right of suffrage, hence the provisions regarding distinguishing marks and the
policy of the courts in determining what are and what are not such marks.
As the central object and purpose of the primary election law is to place in the hands of all
of the electors of a party the power of choosing the party nominees for office, the act must be
construed with that end and purpose in view. Manifestly, the act was not made primarily for
the benefit of party candidates, but rather to provide a means for the party electors to express
their choice. It is not always the case that those who are most anxious to serve the public in
office are the ones who appeal most strongly to the private citizen. Very often it is the case
that those citizens who are the best qualified to serve the public care very little about public
office, and do not voluntarily put themselves out to become candidates, while on the other
hand, those who want office for their own personal ends, can always be relied on to take the
necessary steps to have their names upon a ballot.
relied on to take the necessary steps to have their names upon a ballot. If the voter's choice is
limited only to those names which are printed on the ballot, then very often, according to the
voter's view, he is obliged to vote for one whom he may regard as incompetent or worse, or
not vote at all, and is without the privilege of indicating his real choice.
We think the legislature intended, by providing for the blank space, that a party elector
may write in the name of any qualified elector for whom he wishes to cast his vote for
nomination for any particular office and may then vote for such elector by stamping a cross
thereafter. In that way only can the members of a political party make a nomination where no
candidate has filed nomination papers. Suppose a party had but one candidate for the
nomination for an office like that of governor or United States senator, and the person who
had filed his nomination papers was so generally satisfactory to his party that no other
candidate is likely to oppose him, and that prior to the primary election such candidate should
die, can it be said that the legislature did not intend, in such a case, that the party shall have
some means of expressing any other choice for such a nomination? We think not.
Under the prior existing primary act, which prevailed in this state for many years, the
members of a political party voted for their choice for delegates to a nominating convention
in any way they pleased, generally by writing the names of their choice for delegates,
although in the more populous precincts printed names on a slip were frequently used. The
delegates in a convention expressed their choice for nominees by writing the names thereof
on ballots. In construing statutes, it is proper to consider the prior existing law, the evils
therein sought to be corrected, and the remedy provided.
There is nothing in the present act which indicates an intention of limiting the method of
indicating a full and free choice which the elector formerly had, although it only extended to
the selection of delegates.
In determining that it was the intention of the legislature that party electors are not
limited to voting for those candidates whose names are printed upon the ballot, but that
they may write in the blank space, provided for such purpose, the name of their choice,
we are aided by the provisions for a similar blank space for county committeeman.
ture that party electors are not limited to voting for those candidates whose names are printed
upon the ballot, but that they may write in the blank space, provided for such purpose, the
name of their choice, we are aided by the provisions for a similar blank space for county
committeeman. This provision does not appear in the California act, and hence may be said to
have been inserted in the Nevada statute ex industria. Nowhere is there any specific provision
that a name may be written therein, but there are provisions for canvassing the vote for such
committeeman, the meeting of the committee composed of those so selected, and matters of
that kind. If a name is not authorized by the act to be written in, then the other provisions of
the act for canvassing the vote, etc., would be senseless, and, besides, there could be no party
county organization. That the legislature intended that the voter could write in the name of his
choice for county committeeman, is manifest. If the legislature did not consider it necessary
to specifically provide for writing in the one case, it doubtless did not in the other, but the
legislative intent is, nevertheless, clear in both cases.
There is no similar provisions in the primary act limiting the conditions under which a
name may be written upon the ballot, as appears in the Australian ballot law (Comp. Laws,
1704.) Those provisions have peculiar application to the latter law and are totally inapplicable
to the primary law.
Under the Australian ballot law the writing of a name upon a ballot, except to fill a
vacancy under the conditions expressly provided by that act, is specifically prohibited, and the
same constitutes a distinguishing mark. (State v. Sadler, 25 Nev. 190.)
While the writing of a name upon the official ballot at the general election, by an elector,
violates the purpose of that act, in that it tends to destroy the secrecy of the ballot, the writing
of the name of a qualified elector on a primary ballot, in order to vote for his nomination for
office, is in accordance with the spirit and purpose of the latter act, to wit, the selection of
party candidates by the popular choice of the party.
latter act, to wit, the selection of party candidates by the popular choice of the party.
Under the view we take of the primary act of this state, the decision of the supreme court
of California in the Fickert case, supra, relied on by the deputy attorney-general in his
argument, applies with equal force to our act, and that, as held in that case, any qualified
elector of any party may at a primary election vote for any qualified elector for nomination by
his party for any particular office by writing his name upon the ballot in the appropriate blank
space and stamping a cross thereafter.
Were it not for the provisions directing the printing of a blank space on the ballot for
county committeeman (carrying with it the manifest intent that such space is to be used by
writing in the choice of the party elector for such committeeman), it might, with much force,
be urged that the provisions of section 31, extending all penalties and provisions of the law
governing elections, except as herein otherwise provided, shall apply in equal force to
primary elections as provided by this act, prohibits the writing of names of candidates for
office upon the ballot, because such writing on the general election ballot is within the penal
injunction against distinguishing marks. But an argument of this kind is without force when it
is conceded that the elector may write on the ballot the name of a committeeman.
It is clear, also, that the blank spaces are not provided, as in the Australian ballot law, for
use for filling vacancies, for there is no means provided in the primary act for filling
vacancies except after the primary election. (Sec. 27, supra.)
It is ordered that the county clerk of Ormsby County cause to be printed for use at the
primary election to be held on the 6th day of September, 1910, ballots for the Democratic,
Republican and Socalist parties containing the designation of every office to be filled by
election at the November general election, regardless of whether or not nomination papers for
candidates for any particular office have or have not been filed, and that a blank space
three-eighths of an inch wide, together with a voting square for stamping the cross, as
provided in the statute, be placed below the name or names of candidates for each
particular office, where names are printed on the ballot, and below the office designation
where no such names are so printed.
three-eighths of an inch wide, together with a voting square for stamping the cross, as
provided in the statute, be placed below the name or names of candidates for each particular
office, where names are printed on the ballot, and below the office designation where no such
names are so printed.
Sweeney, J.: I concur.
Talbot, J., concurring:
I agree with much that has been said by the chief justice. As it would be vain to have extra
spaces upon the ballots unless they may be utilized, the real question is whether the
legislature intended to limit the names of candidates to be voted for and nominated at the
primary election to those going upon the ticket by petition as party candidates or later as
independent candidates, and having their names printed upon the ballot, as expressly allowed;
or may the voters at the primary election write on the ballots the names of any electors they
may desire, other than the party or independent candidates for the nomination printed upon
the ballot? In other words, did the legislature intend to have the secrecy and benefits of the
Australian ballot system, which has been in force in this state since 1891 at our general
elections, apply hereafter to the primary elections, so as to prevent at them the successful
intimidation or purchase of voters and the abuses which were sometimes practiced under the
old method of balloting openly, but which are no longer possible at general elections?
Whether it is not as desirable to guard the voter with secrecy at the primary as at the general
election, excepting that frauds at the primary may become known and may react at the general
election against a candidate for whose advancement they are practiced, is a matter of policy
for the legislature and not for the courts to determine further than to ascertain the legislative
will in construing the language of the enactment. Primary elections had not come in vogue at
the time of the adoption of the constitution, and it is not assumed that the elector has any
greater inherent rights at them or may not be as much restricted in the method of voting at
the primary by reasonable regulations as at the general election.
ent rights at them or may not be as much restricted in the method of voting at the primary by
reasonable regulations as at the general election.
Uncertainty arises because the late direct primary election act provides that under each
group of candidates there shall be printed as many blank spaces as there are candidates to be
nominated for the office, but with no express direction, as in the California statute, that names
may be written in these spaces, and because our act authorizes the leaving of a blank space,
preceded by the words County Committeeman, and makes provision for the canvassing of
the vote for county committeeman, without specifying the method by which the names for
county committeeman may be placed on the ballot, and states that all penalties and
provisions of the law governing elections, except as herein otherwise provided, shall apply
with equal force to primary election as provided for by this act. By this last condition our
Australian ballot law, with its secrecy and safeguards, and which prohibits the writing of
names upon the ballot, and which concededly applies to elections, may become applicable to
primary elections unless it is otherwise provided in the late act. In this connection, there is
force in the contention that the provision for blank spaces under office designation and for a
space under the name of, and the canvassing of the name for, county committeeman, when
the statute designates no method for printing or placing names for that position upon the
ballot, leads to the implication that the legislature intended that names might be written in for
county committeeman, and inferentially for other positions, the writing in of the names for
which would not destroy the secrecy of the ballot any more than the writing in of the name for
county committeeman. It is necessary to hold that names may be so written, in order to give
any force to these provisions or to have a county committee elected. I am not constrained to
favor a construction which would lead to such undesirable results as would occur under the
statute as it now exists if spaces are not provided and names are not allowed to be written
in them.
and names are not allowed to be written in them. If hereafter the legislature, representing the
people of the state, deem it wise to guard primary elections with the same secrecy which
prevails in general elections a new statute can be easily framed which will clearly indicate
this intention and at the same time provide for the election of county committeemen and for
the nomination of candidates by the voters after the time has expired for having printed upon
the ballots the names of party or independent candidates.
As our act is mostly the same and has sections relating to assembly districts and other
conditions in California which do not prevail in this state, it may be fairly inferred that it was
largely copied from the bill pending before the California legislature; and as ours omits the
direction for the writing in of names and it does not appear that this omission was not
intentional on the part of the legislature, and that the provision relating to spaces and county
committeemen was not retained by oversight, the same as other parts of the California bill
were retained, or that upon more mature consideration the legislature would not have
eliminated any language of the statute which might, even by implication, lead to the inference
that names might be written upon the ballot, the proper construction is not clear. But when it
is doubtful whether the provisions mentioned were retained inadvertently, to give them effect
when they are a part of the statute would seem more in consonance with the ordinary rules of
construction. As with a new machine or garment, a new law may not be perfect or work to the
best advantage upon first trial. It is to be expected that experience with the act will show
defects and errors which it will be desirable to have corrected by future legislative action.
For these reasons I concur in the order directing that a blank space, followed by a square
for stamping the cross, be placed below the name or names of candidates for each particular
office where names are printed on the ballot and below the office designation where no
such names are printed.
ballot and below the office designation where no such names are printed.
On Rehearing
P. B. Ellis, for Petitioner.
Opinion by Sweeney, J.:
This proceeding, instituted by the deputy attorney-general, Mr. Fowler, pursuant to the
provisions of section 29 of the act in relation to primary elections (Stats. 1909, pp. 273-291)
is again before us to determine whether or not voters at the coming primary elections to be
held September 6, 1910, are to be permitted to write in names of any electors they may desire
to nominate for the respective offices to be voted for, and for a determination of how the
ballots must be printed by the various county clerks in certain respects alleged about to be
violated.
After a very thorough review of the former application and analysis of the primary act, and
the opinion heretofore prepared by the chief justice, I am unable to concur in all of that
opinion and believe the same must be modified as hereafter disclosed, to properly comply
with and carry out the intent of the legislature with regard to the provisions of the act in
question attacked. These provisions now assailed are provisions pertaining to the proper
character of ballot which the clerks of the various counties must order printed, and by reason
of candidates failing to appear for nomination for several offices by the several parties
whether or not it is necessary, where no candidates have offered themselves for nomination,
for the voters to write in the names of those whom they desire to nominate for those vacant
offices and for other offices as well.
In my opinion, as heretofore expressed in the case of Riter v. Douglass, where this court
unanimously sustained the constitutionality of the direct primary law, one of the main objects
of the primary law is the preservation of the integrity of parties. To allow voters of various
parties to promiscuously nominate men of other political faith as the nominees of a
different party to which they belong, is totally at variance with my conception of the true
intent of the object of the primary law.
ties to promiscuously nominate men of other political faith as the nominees of a different
party to which they belong, is totally at variance with my conception of the true intent of the
object of the primary law. In my opinion, in the primary election, which is an election for the
purpose of allowing the electors of each party to select their nominees, as distinguished from
the general election where the entire electorate choose the officers to administer the affairs of
government until the succeeding election, each party should have complete and exclusive
control of determining its choice of nominees for its own party and these nominees must be
selected from among its own members. To allow Republicans to nominate Democrats as
Democratic nominees of the Democratic party, or vice versa, which follows if we allow the
writing in of names indiscriminately by the voters, is totally at variance with my conception
of the subject of the primary law and my opinion heretofore rendered.
The legislature in adopting the California primary act, expressly omitted a provision
contained in the California act to the effect that voters were privileged to write in their choice
as candidates for the respective offices, whether candidates' names were printed on the ballot
or otherwise. In eliminating this provision from the Nevada statute, is conclusive proof to my
mind, in construing our Nevada statute, that we are justified and bound to draw the
conclusion that the Nevada legislature intended to confine the voters to the names of the
candidates appearing upon the ballot, by reason of having complied with the provisions of the
statute, which designates the requirements to be complied with to get on the ballot. Therefore,
the California cases cited by the chief justice to sustain his construction of the statute in
allowing names to be written in promiscuously by the electors of the various parties for any
nominees they desire, irrespective of whether or not their names are regularly printed on the
ballot in compliance with the requirements of the statute, or otherwise, are not applicable to
the questions raised under our Nevada statute, nor binding on this court to heed or follow.
raised under our Nevada statute, nor binding on this court to heed or follow.
The primary law expressly provides how any qualified voter who desires to have himself
voted for any office as the nominee of his party, may secure three per centum of the voters of
his party, pay his fee and comply with other requirements, provided in the act, whereupon his
name will be printed on the official primary ballot, to be submitted to the voters of his party,
and if he secures the majority of the votes of his party for that office he will be the party's
nominee for that office. If a candidate does not desire to comply with the provisions of the
primary law, and take the chances of securing the majority of his party's vote to become his
party's regular nominee, he can get on the official ballot by running as an independent
candidate, by complying with the law regulating independent nominations. Every qualified
voter has the same equal right to get on the ballot as a candidate, if he desires to comply with
the law, and in my opinion is in no position to complain if he fails to avail himself of the
opportunity of becoming a candidate which entitles his name to appear on the ballot. To allow
individual voters to promiscuously nominate a man who does not offer himself as a
candidate, and to authorize every voter to write in any name of any voter, irrespective of his
politics, for any position, without the consent of such persons, and thereby encumber the
ballot with names of individuals who, even if elected, would not care to qualify, and to allow
voters of one party to name individuals of another party, as the candidates of a party in whose
principles he does not profess or believe, is not only inequitable and illegal, but totally
inconsistent with the object of the law.
I am therefore of the opinion that voters are obligated to vote for only those candidates
whose names appear printed on the ballot, and that they are not entitled to vote or write in any
name for any candidate unless his name appears on the ballot.
The primary law, however, provides for the election at the primary election for "County
Committeeman" and how the committee is to be formed and organized from the
committeemen elected from the various precincts.
at the primary election for County Committeeman and how the committee is to be formed
and organized from the committeemen elected from the various precincts. The law in this
respect does away with the method heretofore in vogue, wherein the central committee
governing political parties were selected by convention method. The law expressly provides
for the canvass of these county committeemen, and in my judgment it was the intention of the
legislature to allow voters of the various precincts the privilege of writing in their choice for
this minor office on the ballot. The selection and election of officers of county and state
governments has been signally segregated from the provisions of the act of the legislature
regarding the selection and election of County Committeemen.
I am therefore of the opinion that at the primary election voters are privileged and
authorized, without destroying the validity of their ballot, to write in the name of the County
Committeeman they desire to vote for. This office of County Committeeman, however, is
the only office for which a voter is authorized to write a name on the ballot.
The legislature, when they eviscerated the provision of the California statute, authorizing
the voter to write in on the ballot the name of any candidate he desired to vote for,
irrespective of whether or not his name appeared on the ballot, in its haste inadvertently left
the provision for blank spaces under the names of the candidates regularly appearing thereon.
This inadvertent act of the legislature in providing for these unnecessary spaces, however, as I
construe the statute, would not warrant us to judicially legislate in the act the provision they
intentionally struck out, to wit, of allowing the voters to write in the names of candidates in
the blank appendicitic spaces. These spaces, however, are in my judgment totally
unnecessary, and I am therefore of the opinion that clerks should be directed not to print
them, nor to print the official designation for any office for which no candidate has been
presented by regularly complying with the law.
candidate has been presented by regularly complying with the law.
It is represented to the court that in certain counties the clerk has already printed in on the
ballots these blank spaces, and, the secretary of state not having in his possession other paper
to supply, that if this court should hold these spaces unnecessary and not to be printed, these
counties, owing to the shortness of the time before the primary election, would be
disfranchised. Entertaining the view I do of these unnecessary blank spaces, and the intent of
the legislature to confine voters to voting for candidates of their own political faith in their
own primaries, I am of the opinion, in view of the fact that all the ballots are the same and
uniform, in those counties where the clerks have too previously printed their ballots
containing the unnecessary blank spaces, that it is immaterial whether they have done so or
not, and therefore there is no legal necessity of us ordering these respective clerks of these
counties to reprint their ballots. I desire, however, to be strictly understood as holding that in
the last referred to counties, no voter is privileged to vote for any candidate except those
whose names regularly appear on the ballot by writing in any name, with the exception that
they may vote for a County Committeeman by writing in the name for this respective
office. Whether or not a County Committeeman, as referred to in the act, the legislature
intended to treat and consider in the same status as a candidate for office, it is unnecessary
for us to determine, as the question is not involved.
Subdivision 8 of section 12 of the act, providing for the election of County
Committeeman, reads: At the bottom of the last column on any official primary election
ballot to be voted in September for the nomination of candidates to be voted for at the
ensuing November election, there shall be left one blank space defined by light lines or rules
three-eighths on [of] an inch apart and which shall be preceded by the words County
Committeeman.' It will be noted that this section makes no provision for a blank space,
to the right of the blank space for the name, to stamp an X and specifically in subdivision
7 of section 12 of the act providing for such a blank space opposite the names of
candidates, whose names are printed on the ballot.
It will be noted that this section makes no provision for a blank space, to the right of the
blank space for the name, to stamp an X and specifically in subdivision 7 of section 12 of the
act providing for such a blank space opposite the names of candidates, whose names are
printed on the ballot. This is immaterial, however, and in my opinion, in order to remove any
doubt which may exist in the mind of the voter, who desires to vote for a committeeman by
writing in the name as to whether he should make an X opposite the name he may write in, it
is immaterial whether he may do so or not, and that, if he chooses to both write in the name
and mark an X after the name he may write in, or simply write in the name without the X
thereafter, his vote should be counted either way.
In conclusion, therefore, I am of the opinion that no voter is privileged to vote for any
candidate whose name does not appear on the ballot by writing in any name, but that each
voter is privileged to write in a name of anyone for whom he may desire to vote for as
County Committeeman; that the clerks of the various counties should not print additional
blank spaces under the names of candidates whose names are printed on the ballot, but in
those counties where the clerks have so printed such spaces that they are not obligated to
reprint the ballot for the reasons above assigned; further, that the official designations of
offices for which no candidate has been nominated should not be printed on the ballot.
I also concur in the views expressed by Justice Talbot, in separate opinion, covering these
points, filed this day, which comes to the same conclusions on the points involved which I
have above expressed.
The various clerks will, therefore, be guided accordingly in the preparation and printing of
their primary election ballots; and the orders heretofore made pursuant to the opinion by the
chief justice will be modified accordingly.
Opinion by Talbot, J.:
After reconsidering questions presented in relation to the form of primary ballots, and
studying more carefully the various provisions of the late primary act, which are so
uncertain in their meaning as to have led to differences of opinion by county clerks
charged with the execution of the law, by district attorneys as their legal advisers, and by
others, lawyers and judges, we have finally arrived at the following conclusions regarding
the printing of spaces upon the ballot and the writing of names thereon at the primary
election:
the various provisions of the late primary act, which are so uncertain in their meaning as to
have led to differences of opinion by county clerks charged with the execution of the law, by
district attorneys as their legal advisers, and by others, lawyers and judges, we have finally
arrived at the following conclusions regarding the printing of spaces upon the ballot and the
writing of names thereon at the primary election:
This uncertainty is caused mostly by the provision in subdivision 7 of section 12 that
under each group of names of candidates shall be printed as many blank spaces, defined by
light lines or rules three-eighths of an inch apart, as there are to be candidates nominated for
such office, by the direction in the following subdivision (8) that at the bottom of the last
column on the primary ballot there shall be left a space preceded by the words County
Committeeman, and by later sections in the act which provide for the counting and
certification of the vote for county committeeman, when the act nowhere provides for the
writing of names in any of these spaces, or otherwise, on the ballot. Regardless of whether the
clause in section 31, stating that all penalties and provisions of the law governing elections,
except as herein otherwise provided, shall apply in equal force to primary elections, as
provided for by this act, makes the Australian ballot law, which applies to general elections,
applicable to primary elections, and regardless of whether it is the purpose of the primary act
to guard the primary elections with secrecy, under the ordinary rules of construction the
intention of the legislature, as far as gleaned from the different sections of the act, ought to
govern our conclusion. These are not so clear or certain that even legally trained minds, after
careful study of the whole act, may not change or differ as to the meaning of some of these
provisions. We think that by providing for a blank space following the designation of county
committeeman, for the canvass and certification of the vote for county committeeman and for
a county committee when there is no provision in the act for nominating or printing names
for county committeeman, and no way by which they may be elected or by which a county
committeeman may be selected except by writing in the names, it is the natural inference
that the legislature intended that the voter should write the name of his choice for county
committeeman in the space under that designation on the ballot.
nating or printing names for county committeeman, and no way by which they may be elected
or by which a county committeeman may be selected except by writing in the names, it is the
natural inference that the legislature intended that the voter should write the name of his
choice for county committeeman in the space under that designation on the ballot.
The same reasons do not apply to the blank spaces directed to be left upon the ballot under
each group of names of candidates. Not only is there no direction in the statute for writing
names in these spaces, but there is no provision for canvassing or certifying any names
written in them. The provision for these spaces is the same in the California statute as in ours,
and in neither act is there any provision for printing blank spaces after the designation of
offices for which no candidates have appeared by petition or had their names printed upon the
ballot. Yet the Supreme Court of California properly directed that blank spaces be left upon
the ballot after these office designations. By express provision of the statute in that state the
voter was authorized to write in the names of persons who had not filed petitions or had their
names printed upon the ballot. Under the circumstances the spaces were needed, and it would
have been inconsistent to have deprived the voter of the privilege of having them for writing
the names under office designations when the ballot did not have printed upon it the names of
any candidates for those offices, while the statute authorized him to write in the names of the
persons who were his choice for any offices and provided blank spaces for this purpose under
the printed names of candidates, but omitted, possibly inadvertently, to provide such spaces
under the names of office designations which were not followed by any printed names of
candidates.
The decision in the Fickert case (108 Pac. 269) was based upon the will of the legislature
and followed the statute, which expressly authorized the voter to write any names he desired
on the primary ballot. Our legislature has not included this provision in our statute, and we
are led irresistibly to the conclusion that by this omission it was not intended that the
voter should be allowed to write in the names of the persons for offices or for any position
other than that of county committeeman, for which provision is made, as before stated.
led irresistibly to the conclusion that by this omission it was not intended that the voter
should be allowed to write in the names of the persons for offices or for any position other
than that of county committeeman, for which provision is made, as before stated. Under this
view it is not necessary to place on the ballot any spaces under the printed names of
candidates, for the act nowhere authorizes the writing of names in these spaces by the voter
nor that other use be made of them.
It may be inferred that by oversight the legislature failed to eliminate from the statute the
provision that they be placed upon the ballot, at the time the provisions of the California bill
authorizing the writing in of names was omitted from our act. As the voter there was allowed
to write in names, the spaces were needed, both under the printed names of candidates and
under the names of office designations where there were no names of candidates printed on
the ballot. But as our statute does not authorize the writing in by the voter of names in either
case, it is not necessary that the lines be placed upon the ballot in either. As section 27 only
allows the filling of vacancies occurring after the primary election, there is no way by which
these spaces can be used for filling vacancies as spaces may be used on the ballot provided
for the general election.
The rule that courts should endeavor to give effect to all the language in the legislative
enactment is undoubted, but it ought not to be carried to the extent of requiring judicial
legislation to give it force. It would be extending the principle too far to hold in this case,
because there is merely a provision in the statute, possibly and apparently retained there by
inadvertence, directing that spaces be placed after the printed names of candidates, that
therefore the legislature intended that the voters might write names in those spaces upon the
ballot when the provision authorizing such writing is omitted from the act. This would in
effect reverse the action of the legislature and judicially interpolate into the statute the very
provision which they had eliminated. It would be giving the same interpretation and effect to
the statute in this state, which fails to authorize the writing upon the ballot of any names
the vote may desire for candidates, which has been given to the California act, which
expressly carries such authorization, and would give life and force in this state to a
provision of the California act which as been decapitated and never included as a part of
the statute by our lawmaking power.
fails to authorize the writing upon the ballot of any names the voter may desire for candidates,
which has been given to the California act, which expressly carries such authorization, and
would give life and force in this state to a provision of the California act which as been
decapitated and never included as a part of the statute by our lawmaking power.
Section 2 of the primary election act provides:
All candidates for elective public offices shall be nominated as follows:
1. By direct vote at primary elections held in accordance with the provisions of this act;
or
2. By nominating petitions signed and filed as provided by existing laws.
Apparently these are intended as words of limitation, and allow nominations to be made
only in accordance with the primary act or by nominating petitions, as formerly, the time for
which in this campaign has not arrived and in regard to which there is no question before us
for solution. Consequently we are limited to considering how nominations for elective offices
may be made in accordance with the provisions of the primary act. In its various sections
no method is found by which candidates may be nominated or have their names placed on the
ballot at the general election, except by first filing petitions and having their names printed
upon the primary ballot, and by receiving the highest number of votes at the primary election
for the nomination sought. As the act nowhere provides for the writing in of names of
candidates or persons desired for elective offices, nor for the canvassing or certification of
names written upon the ballot for any position excepting that of county committeeman, it
follows that if a person whose name is not printed upon the ballot should receive the highest
number of votes at the primary election by having his name written upon the ballots, he
would not thereby be nominated within the limitations of section 2, which allows
nominations to be made only in accordance with the provisions of the primary act or by
nominating petitions.
We do not think it would be within the language, purpose or spirit of the act to allow any
one or more members of a political party to become candidates either upon election day
or weeks or months in advance and receive votes by the writing in of the names and have
these votes canvassed and certified for them the same as if they had obtained a petition
with three per cent of the voters and filed and paid the fee for the same.
pose or spirit of the act to allow any one or more members of a political party to become
candidates either upon election day or weeks or months in advance and receive votes by the
writing in of the names and have these votes canvassed and certified for them the same as if
they had obtained a petition with three per cent of the voters and filed and paid the fee for the
same. If this could be done candidates, like mushrooms over night, might spring up on the
eve of the primary election, contrary to the general policy of the act, which provides for
periods of time and certifications which give notice to the electorate. Voters in different
precincts and in the same precinct could cast their ballots for numerous persons, a part or all
of whom were not seeking or wanting the office, and the act makes no provision for the
resignation or withdrawal of a name of anyone who has been nominated or received the
highest number of votes at the primary election. It is contended that the petitioner and voters
generally ought to have the inherent right to write in the name of any person they desire to
have elected to an office. Unless the person selected desires to hold the office and there is at
least a possibility that he may be elected, the disallowance of the writing in of his name does
not deprive the voter of any substantial beneficial right. It is hardly possible that a candidate
or person whose name the voter desires to write on the ballot could be elected if a petition
signed by three per cent of the voters could not be obtained for the purpose of having his
name written upon the primary ballot.
It may be conceded that the legislature can make only reasonable regulations, and cannot,
under the guise of regulation, pass and have enforced laws which will in effect prohibit the
electors from becoming candidates at the general election. The requiring of a petition signed
by a small percentage of the voters is not deemed such a prohibition. The decision of this
court, holding that the writing of the name upon the ballot at general elections distinguishes
and invalidates it, warrants the conclusion that the legislature may also prohibit the writing of
names upon the ballot at the primary election and may restrict the voting to such candidates
as have by compliance with reasonable regulations secured the printing of their names
upon the primary ballot.
restrict the voting to such candidates as have by compliance with reasonable regulations
secured the printing of their names upon the primary ballot.
Whether it is as desirable to guard the voter with secrecy at the primary as at the general
election, when frauds at the primary may become known so as to react at the general election
against a candidate for whose advancement they are practiced, is a matter of expediency for
the legislature and not for the courts to determine, further than to ascertain the legislative will
in construing the language of the act. However, it is apparent from what we have said that our
conclusions as to the questions before us relating to the form of ballots would be the same
whether the legislature intended to have the secrecy and benefits of the Australian ballot
system, which has been in force at our general elections since 1891, apply hereafter to the
primary elections, so as to prevent the successful intimidation or purchase of voters and the
abuses which were sometimes practiced under the old method of balloting openly, but which
are no longer possible at the general elections. It may be expected that the primary act as
construed by the courts will not prove perfect upon first trial, and that it will show defects
which will be desirable to have corrected by legislative action.
Modifying the views which we entertained after the first hearing, at which argument was
made on behalf of the petitioner only, and which we formed hastily and before we had time to
give the matter mature consideration, we adhere to the conclusion that as the statute directs
that at the bottom of the last column on the primary ballot there shall be left one blank space,
defined by light lines or rules three-eighths of an inch apart, and which shall be preceded by
the words County Committeeman,' these words and this space ought to be printed on the
ballot accordingly, so that the name of a person for whom a voter desires to vote for county
committeeman may be written in and thereafter canvassed and certified as directed in other
sections. But as there is no provision in the statute for the writing in of names or placing
upon the ballot the designation of offices for which no candidates or printed names
appear upon the ballot, and no provision in the statute for the placing of spaces under
office designations for which there are no candidates, and no provision for allowing,
certifying or canvassing votes for candidates for public offices cast in any way excepting
votes cast by putting a cross after the printed name of the candidate, the names of
officers for which no candidates have filed petitions need not be printed upon the ballots.
or placing upon the ballot the designation of offices for which no candidates or printed names
appear upon the ballot, and no provision in the statute for the placing of spaces under office
designations for which there are no candidates, and no provision for allowing, certifying or
canvassing votes for candidates for public offices cast in any way excepting votes cast by
putting a cross after the printed name of the candidate, the names of officers for which no
candidates have filed petitions need not be printed upon the ballots. It is also unnecessary to
insert under the groups of names of candidates the blank spaces designated in subdivision 7
of section 12, for the reason that these would be an unnecessary appendage, because there is
no provision for their utilization. If they are already printed upon the ballots in any of the
counties of the state, their insertion is harmless.
As the statute does not require a square to be placed at the end of the space below the
words County Committeeman, it would seem to be intended to allow the elector to vote for
his choice for that position by merely writing in the name. But we see no particular danger or
objection in the square after this space which appears upon the sample ballots before us,
because if the elector in addition to writing in the name for county committeeman should also
insert a cross in the square, as he is directed to do in voting for candidates whose names are
printed on the ballot, it would not be deemed detrimental as a distinguishing mark when
considered in connection with the permissible writing of the name and the other squares upon
the ballot if the provisions of our Australian ballot law be considered applicable to primary
elections, except as otherwise provided in the late act.
As the sample ballots which have been attacked in this proceeding bear the words County
Committeeman preceding a blank space followed by a square, and omit any designation of
the office for which no petitions have been filed, but include under each group of printed
names of candidates as many blank spaces as there are to be candidates nominated for the
particular office, official ballots in the same form may be used if already printed, but, if not
already printed, it is suggested that these extra spaces may be omitted.
not already printed, it is suggested that these extra spaces may be omitted.
The order regarding the printing of the ballots will be modified to correspond with these
views.
____________
33 Nev. 156, 156 (1910) Botsford v. Van Riper
[No. 1828]
CHARLES H. BOTSFORD, Appellant, v. L. C. VAN RIPER, JOSEPH HUTCHINSON,
JAMES DAVIS, J. P. LOFTUS and JAMES DAVIS, Doing Business Under the Firm
Name of LOFTUS & DAVIS; GOLDFIELD MOHAWK MINING COMPANY,
GOLDFIELD CONSOLIDATED MINES COMPANY, COMBINATION MINES
COMPANY, GEORGE S. NIXON, and GEORGE WINGFIELD, Respondents.
1. Appeal and ErrorReviewConclusiveness of Findings.
The supreme court will not disturb findings on conflicting evidence.
2. Joint AdventuresRight to Recover Interest.
That plaintiffs and defendant agreed to use their joint efforts to secure an option on certain property and
to sell the same, defendant to be the active agent of the venture, that plaintiffs assisted in furthering the
venture by counsel, introductions, and personal efforts, that it was agreed that the parties should share
equally in the profits, that the venture was successful and defendant was to receive stock of a specified
value as compensation, that he was attempting to get possession of all the stock and refused to recognize
plaintiffs' rights to any interest in the proceeds of the venture, and that he was outside the state and
insolvent, shows plaintiffs' right to recover equal interests in the proceeds under the doctrine of joint
adventure.
3. Joint AdventuresConsideration ofSufficiency.
Plaintiffs' suggestion to defendant of a scheme for merging properties and advice and counsel to him, and
the mutual promise of assistance in promoting the venture, were sufficient consideration to sustain an
agreement for an equal division of the profits of the venture, though defendant agreed to do all the other
work.
4. Joint AdventuresTrusteeship.
Where property or profits are acquired under a joint adventure, a party holding title to the same is a
trustee for his associates as to their proportionate shares.
5. Joint AdventuresRelation Between Parties.
The relation between the parties to a joint adventure is fiduciary, and the utmost good faith is required of
the trustee to whom matters may be intrusted; he not being entitled to any advantage over his associates on
account of possession of property or profits.
6. Joint AdventuresRights of Parties.
Associates of the trustee of a joint adventure can recover from him for any breach of his trust.
7. Joint AdventuresConsiderationSufficiency.
The furnishing of capital by the parties to a joint adventure is not essential to the validity of the contract if
the original agreement is carried out.
8. Joint AdventuresRights of Parties.
That the active agent of a joint adventure did not call upon his associates for the aid they agreed to give
does not affect their right to share in the profits.
9. Joint AdventuresAdvances by PartyEffect.
Advances by one party to a joint adventure are loans to the venture for which he is entitled to
reimbursement from the proceeds of the venture, but they give him no other superior rights against his
associates.
10. Joint AdventuresDivision of Profits.
In the absence of an express agreement to the contrary, equal division of the profits of a joint adventure is
implied, regardless of inequality of contribution.
11. Joint AdventuresAccountingRights of Parties.
A party to a joint adventure holding the profits may be compelled to account to his associates for their
share of the property representing such profits in kind.
12. Joint AdventuresProfitsForm.
The profits of a joint adventure may consist of the unsold portion of the property which was the subject of
the venture, or property received as compensation for services rendered in connection with the venture, as
well as money.
13. Joint AdventuresRights of PartiesRemedies.
While a party to a joint adventure may sue his associate at law for breach of the contract or a share of the
profits or losses, or contribution for advances in excess of his share, such remedies do not preclude a suit in
equity for an accounting.
14. ActionLegal and Equitable Relief.
Under the code of civil procedure, the district courts in proper cases may administer both legal and
equitable relief.
15. Joint AdventuresSet-Off.
One party to a joint adventure may set off against the demand of another advances or payments in behalf
of claimant, and hence, in an action to recover an interest in the proceeds of a venture, expenditures by
defendant were properly deducted from recovery awarded against him.
16. Joint AdventuresNature of Controlling Principles.
The legal principles governing partnerships apply generally to joint adventures.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; J. P. O'Brien, Judge, presiding.
Action by L. C. Van Riper and another against Charles H. Botsford and others. From a
judgment for plaintiffs and from an order refusing a new trial, defendant Botsford appeals.
Affirmed.
Rufus C. Thayer, C. L. Harwood, James F. Peck, Solinsky & Wehe, and Paul C. Morf, for
Appellant:
FirstThere was no joint ownership, nor a community of property, between the plaintiffs
and the defendant Botsford in either the option, or in the proceeds from the sale of the option.
The respondents in their brief merely assert that plaintiffs and defendant Botsford were
joint owners of the stock. They give no reasons for this assertion, except that the trial court
found the alleged contract as stated in the complaint. They admit that plaintiffs contributed no
money to the venture. They claim that defendant Botsford excluded the plaintiffs from all
participation, and withheld all information from them. But they do not claim, and do not
show, that the plaintiffs were ready, able or willing to join in the purchase of the option, and
to make a new contract to meet the unexpected conditions. All they do claim is this: In the
early stages of the negotiations, when it became manifest that considerable sums would be
necessary to promote the venture, the matter of its provision was discussed,' and the
plaintiffs recommended' that the defendant see' Mr. Davis in that regard. This is but a
sample of the turgid phraseology found everywhere in respondents' brief. The plaintiff Van
Riper puts it in a more prosaic light. His language on the witness stand was as follows: Mr.
Botsford said: It is going to take some money to secure this option; and Mr. Hutchinson said:
Well, you can get somebody here who has money.' And the plaintiff Hutchinson expresses
the situation even more tersely. He testified: Of course, he knew that I was unable after my
first failure to raise money, and that I was not in a position financially to raise money, and I
suggested that if he secured the option he was working forit was a suggestion or ideato
present it to Loftus and Davis, and possibly raise money locally.
That shows that the plaintiffs could not be of the least assistance financially. In fact,
counsel admit that the plaintiffs had no means. Perhaps that explains why they were kept in
the dark. They could not come in on the deal. But the appellant provided and furnished fifty
thousand dollars. Twenty-five thousand dollars of that amount was paid to Mr. Moore and
has already been discussed. The other twenty-five thousand dollars was paid on account of
installments on the option. This amount did not come from Mr. Haskell in the first instance,
and was not procured from him on the promise of delivery to him therefor of five thousand
shares of the stock, as stated by counsel for respondents. The appellant and Mr. Davis had
given their joint note in part payment for one of the options in the sum of twenty-two
thousand five hundred dollars, and when the note fell due Mr. Davis took it up and charged
the appellant with one-half of that amount. About the same time the appellant obtained a loan
of fifteen thousand dollars from Senator Nixon through his bank, to enable him to make
another installment payment then becoming due on one of the options. It was then that the
appellant telegraphed to Mr. Haskell at New York and from him received the sum of
twenty-five thousand dollars, which he used in repaying the loan from the Nixon and
Wingfield bank and the amount he owed to Mr. Davis on account of the note taken up by the
latter as above stated. Thus Mr. Haskell sent to the appellant twenty-five thousand dollars,
with which the appellant paid his personal obligations and liabilities incurred by him in the
purchase of the options.
and liabilities incurred by him in the purchase of the options. Afterwards the appellant repaid
and compensated Mr. Haskell for this money by transferring to him five thousand shares of
the stock. But there is no evidence showing what promises or inducements, if any, the
appellant held out to Mr. Haskell, or upon what terms he obtained this money from him,
otherwise than as a personal loan.
Now, the findings of fact of the trial court find substantially the facts as here stated,
without, however, going into the details. True, the court finds that the plaintiffs and
defendant Botsford secured the option. And the trial court finds that parties other than the
plaintiffs advanced moneys to enable the plaintiffs and the defendant Botsford to make the
initial payments on said options. And the court also finds that the plaintiffs furnished the
defendant with such information and money, etc., as were required of them.
But these findings cannot be taken literally. There is no pretense that the respondents
contributed any money to the venture. It is admitted by respondents in their brief that they
contributed none. The complaint does not allege the purchase of an option, and does not
allege that respondents joined in or contributed to the purchase of the option. And in their
brief the respondents complain in this court that they did all they were permitted to do, but
that as soon as the probable success of the venture became apparent, the defendant Botsford
withdrew himself more and more from the plaintiffs and refrained from affording them any
information as to the progress of the negotiations. And counsel also state: The plaintiffs
were without knowledge of, or participation in, the transaction. The respondents also plead
entire ignorance, at the time of bringing suit, of the fact that the option was purchased and
cost money, and their counsel state: If the plaintiffs failed to take these items of proper
charge against the venture (meaning the money expended in the purchase of the option) into
consideration in the allegations of their complaint, it was as above stated due to the fact
that the defendant had kept them entirely in the dark as to those matters, as well as all
other matters respecting the negotiations for the purchase and sale of the option."
of their complaint, it was as above stated due to the fact that the defendant had kept them
entirely in the dark as to those matters, as well as all other matters respecting the negotiations
for the purchase and sale of the option.
Clearly, upon the admitted facts, the findings in the particulars referred to must be deemed
findings of conclusions. The court evidently concluded that if the option was secured by the
defendant Botsford pursuant to the terms of the parol agreement, that in legal effect the option
was secured by him and the plaintiffs. Evidently, the court treated all the money employed in
the acquisition of the option as money advanced to the appellant and by the appellant for the
use and benefit of the joint venture. But that is a question of law under the evidence and facts
of the case, there being no express contract to that effect and no evidence that the appellant
voluntarily intended it as such an advance. The question would depend upon the proper
construction and legal effect to be given to the alleged parol contract and to the facts and
circumstances surrounding the subsequent transactions.
The specific facts found by the court are entirely in harmony with this contention. The
court finds as one of the terms of the parol agreement that the defendant Botsford should
have the exclusive charge and control of all the negotiations, and further finds that the
plaintiffs agreed to render services only as required and under the direction of the defendant
Botsford. The court also finds that the defendant Botsford did carry on all of the negotiations
in his name exclusively. Also, respondents admit that from the first defendant Botsford
insisted that all active negotiations should be conducted solely by himself. Hence, the
finding that parties other than the plaintiffs advanced moneys to enable the plaintiffs and
defendant to make the initial payments, is not equivalent to a finding that said parties
advanced said moneys to the plaintiffs and the defendant Botsford. There is no express
finding saying so in direct terms.
The finding is pregnant with the admission that the appellant obtained the money and that the
other parties advanced it to him; and in view of the other findings leaving the appellant in the
exclusive charge of the negotiations, and conducting them solely in his own name, that must
be the construction to be placed upon the language employed in the finding. The money
having been advanced by the third parties to appellant, he could in turn advance it to the joint
venture. But whether he did or did not involves in this case a conclusion and not a finding of
actual fact. The language that the plaintiffs furnished such information, money, etc., as were
required of them, likewise is a conclusion; or, to be more exact, it is evasion and a
subterfuge, and not a finding of fact at all. No money was required of them by the contract;
and the contract contemplated that none of the parties to it should furnish or provide any
money or capital. The law did not impose an implied obligation upon them to do so (see
authorities cited below). It is admitted that appellant did not require any money of them;
and they had none and could not have furnished, raised, borrowed or otherwise procured any,
according to their own testimony. And the court nowhere finds specifically, or affirmatively
and in direct language, any sum or amount of money to have been furnished by the plaintiffs.
Therefore, coupled with the fact that neither by the contract, nor by law, nor by express
request, the plaintiffs were required to furnish any money, the finding means that they
furnished no money, because not required to do so. Thus construed, the finding is in harmony
with the other findings, the pleadings, the evidence, the admissions of counsel, and the truth;
if not so construed it would be in conflict with all of them.
The trial court finds that the defendant Botsford did not expend any money of his own in
securing the option. The court had already found that he had so expended the sum of
twenty-five thousand dollars in cash (finding 13). And in the 17th finding the court finds that
the plaintiffs should reimburse him in cash for this expenditure, pro rata.
that the plaintiffs should reimburse him in cash for this expenditure, pro rata. Hence, the 14th
finding clearly means that outside of the money mentioned in the 13th finding the defendant
Botsford expended no money of his own, but that the necessary money was advanced to him
by third parties, and that he repaid the advances mentioned in the 14th finding out of the stock
received. A mere reading of findings 13, 14 and 17 together will prove this contention.
But even then the finding is a conclusion upon its face in regard to the words no money of
his own. It admits, inferentially, that the defendant Botsford did expend money. Now,
construing the finding strictly upon the facts stated within the four corners of the findings of
fact, and without looking for information elsewhere as to who the parties were who advanced
the money, or as to the terms and conditions upon which the advances were madeall of
which the court below failed to findwe have a finding that money was advanced to
appellant by third parties, that he expended this money in securing the option, and that he
repaid the advances out of the stock received. The court found nowhere who were these
parties, and did not find that the advances were made for an interest in the venture or in the
profits. Nor did the court find that the advances were not made upon the credit and personal
responsibility of the appellant. The mere fact that they were repaid out of stock and by the
delivery of stock does not even raise the presumption of an agreement to pay in stock. The
court did not find the amount of the advances, and it is impossible from the findings to
determine whether or not the value of the stock given in payment was in excess of the amount
of the advances, with interest. A bonus might have been paid, and the parties might have
preferred to take stock, instead of money. But the court did find that the moneys were
advanced, and that the parties were repaid for money advanced. These terms, in their
ordinary significance, import a loan with a promise to repay, and imply a lender and a
borrower, and the relation of debtor and creditor.
tion of debtor and creditor. There is no express finding, and there is no presumption from the
facts as found, that the parties, who advanced money to be repaid, advanced it to be repaid
only in case of success, and that in the event of failure they would assume the loss. The
defendant Botsford, under the alleged parol agreement, had exclusive charge and control of
all negotiations, and the plaintiffs agreed to render services only, and as required by him and
under his direction. The negotiations were carried on by the defendant Botsford in his own
name, exclusively, and the option was taken in his name. Clearly, therefore, the findings of
fact show that the defendant Botsford employed moneys secured upon his personal credit and
obligation in securing the option. What are moneys of his own? Surely, it can make no
difference, so far as the results in this case are concerned, whether the appellant used his own
personal money, or money obtained by him upon his credit and personal responsibility.
But we do not mean to keep this court from looking to the evidence to ascertain the real
facts.
It has been already pointed out that the finding under discussion, the 14th finding,
excludes the money paid by appellant in cash to Mr. Moore. Therefore it is referable only to
the Davis and Haskell money, also already discussed. The parol agreement did not require the
appellant to furnish, provide or procure any money. The court does not find that through the
appellant's mere efforts, or through the joint efforts of plaintiffs and appellant, these two
parties were brought into the venture and became associates of the original three. The parol
agreement did not provide for, nor contemplate the bringing in of capital, or associates with
capital, on any basis. And Mr. Davis or Mr. Haskell did not come into the venture on the
basis that Botsford should give his time and skill, and they provide the capital with which to
operate, for a share of the profits. Mr. Davis came in on the basis that the defendant provide a
part of the money required, and that himself provide the other part.
other part. The defendant then already had something inchoate which he could and did assign
to Mr. Davis, and that something the defendant had acquired by personally promising to pay
money for it. It makes no difference that when it came to making the actual payments the
defendant gave his promissory note in part, and in part secured a loan or advance from Nixon
& Wingfield's bank, and that Mr. Davis paid for his own part. It was the condition of the
assignment of a one-half interest in the options to Mr. Davis, that he should pay fifty
thousand dollars on account of the initial payments, and that the defendant should pay the
remainder of the amount due and to become due on the initial payments. The obligation to
pay for the entire, undivided option went to the consideration for agreeing to pay for a party
of its cost on the part of Mr. Davis. The option was upon a controlling interest in the
corporation, and without all the stock covered by it, control could not have been had, the
merger could not have been had, the merger could not have been effected, and the venture
would have failed. Thus as to Mr. Davis, at least, the transaction, and the consideration for
coming into it, was entire and indivisible, and conditioned upon the appellant's paying of his
share of the initial payments. This involves a matter entirely different from a mere use of
efforts to secure an option through personal services. As to the money coming from Mr.
Haskell, it is clear that it was not furnished or received until after the appellant had given his
promissory note, jointly with Mr. Davis, and had secured the use of other money from the
Nixon & Wingfield bank, with which he did pay for installments on the options; and that the
Haskell money was used to pay off the personal obligations of the appellant. Supposing the
venture had failed after appellant had signed a promissory note, and after the bank had
advanced him fifteen thousand dollars. The appellant and Mr. Davis stood the risk of losing
this money. The Winslow or Patrick option provided for the forfeiture of the first installment
paid in case the second was not forthcoming on time. And the other option was given in
consideration of a fifty thousand dollar payment, which probably could not have been
recovered if the deal had failed of consummation.
in consideration of a fifty thousand dollar payment, which probably could not have been
recovered if the deal had failed of consummation. The contract effecting the merger, by which
the options were taken over by the Goldfield Consolidated Mines Company, was not executed
until November 26, 1906. there were at least two weeks during which the success of the
venture remained doubtful and uncertain.
Thus, to come back to the findings, it is at once manifest that finding 14, in stating that the
defendant Botsford expended no money of his own, is not equivalent to finding that he did
not employ or use his credit in the purchase and acquisition of the option. It is a half finding,
evasive and misleading, and embodies a conclusion rather than a fact.
All through the findings there are conclusions, such as that the defendant Botsford secured
the option under the alleged parol agreement; that he took and held the option in his name
for the joint benefit of himself and plaintiffs; that he received the hundred thousand shares
of stock for the joint benefit of himself and plaintiffs; etc. All these findings of conclusions
must be disregarded. Construing the findings by themselves, they would be contradictory of
each other unless construed as above. The findings clearly show a mere constructive, implied
or passive, participation of the plaintiffs in any of the transactions between the defendant and
third parties. The findings show that the appellant paid twenty-five thousand dollars to Mr.
Moore in cash, and not out of the stock. They find that third parties advanced money, and
were repaid for money advanced to appellant. Suppose the venture had failed and there had
been no stock. The moneys advanced would have had to be repaid, anyway, presumptively at
least. The terms advance and repay imply an absolute obligation to repay. The court does
not find that there was no such obligation. All these facts would have to be taken into
consideration if this court confined itself within the four corners of the findings in construing
them.
The record discloses no facts showing that the plaintiffs would have been or ever were
liable for any part of the advances (see authorities below). The complaint, or the evidence,
does not show that the alleged original agreement was ever modified, changed or enlarged by
the parties to it. The court does to find that the plaintiffs and defendant Botsford subsequently
agreed to employ capital in the venture and to share the losses, if any; nor who was to provide
this capital, and in what proportion the parties should contribute to it. Presumptively none of
them would agree to contribute an amount beyond his means. The plaintiffs confessedly had
no means and no credit or financial ability to raise any money. There was no duty upon the
appellant to provide money for all three, or any money at all.
These premises being conceded, how could the trial court find that with all the risk and
liability to repay the advances resting upon the appellant he purchased the option for the
benefit of himself and plaintiffs, and under the contract alleged and found as alleged, unless
we construe the findings as we have done? It is not to be assumed that the court acted in
disregard of all law. Neither have we any right to impute to the appellant such violent spasms
of insanity, magnanimity or charitable instincts as we would otherwise have to impute to him.
Besides, unless we thus limit the meaning and effect of the findings, there would be a fatal
variance between the pleadings and the proof. The findings, taken literally, would imply that
the option was purchased with money provided by appellant for the account of all three;
which would involve a contract, express or implied, on the part of the plaintiffs as well as the
defendant Botsford to contribute capital and to share the losses, if any. The contract alleged
and found by the court avowedly, and by reference to its terms, does not and did not
contemplate the provision of capital by the parties thereto.
The courts will not by implication impose upon the parties to the contract of joint
adventure any duty or obligation which is not reasonably or naturally inferable from the
terms thereof."
obligation which is not reasonably or naturally inferable from the terms thereof. (23 Cyc.
457; Hawkes v. Taylor, 175 Ill. 344, 51 N. E. 611.)
Unless there had been an express promise on the part of respondents to repay to appellant
their alleged share of the advances made by appellant, the law would have presumed that he
was to be repaid out of the property acquired or its proceeds. (23 Cyc. 457; Bell v. McAboy, 3
Brewst. 81; Williams v. Henshaw, 11 Pick. 79; Wilson v. Anthony, 19 Ark. 16; Lafon v.
Chinn, 6 B. Mon. 305; Daw v. Darragh, 48 N. Y. Super. Ct. 138.)
Where one agrees to furnish the capital, and another services, to a joint venture, the latter
is not liable for any part of the losses sustained. (Ran v. Boyle, 5 Bush. 253.)
Contribution cannot be demanded where the party claiming it had no authority from the
others to incur the expenses. (23 Cyc. 458; Petri v. Tarrant, 100 Mich. 117; 58 N. W. 690;
59 N. W. 941; Norris v. Leavitt, 61 N. H. 109; Parshall v. Conklin, 81 Pa. St. 487.)
Thus it would be obvious that the contract which the court finds by the finding of fact
numbered 6, and which the court further finds by the 15th finding, was acted upon by all the
parties thereto, is an entirely different contract and would involve a transaction dissimilar
from the purchase and sale of an option for a money consideration, set forth in findings 8, 13,
14 and 17. Hence, if we were to take the findings literally, all the findings of the court
referring to the advance and expenditure of money, the purchase and sale of an option, the
attempted allowance for expenditures and the direction that plaintiffs contribute in cash, and
the attempted ascertainment of net profits, and all of findings 7, 8, 9, 10, 11, 12, 13, 14 and
17, would be inconsistent with and outside of the issues made by the pleadings and coram
non judice, and the conclusions of law and the judgment based thereon would be null and
void.
Such a result should be avoided if possible. General findings must give way to findings of
specific facts, and such a construction of the findings will be adopted as will render them
consistent with the pleadings, and with each other, and as will bring them within the
issues tendered by the pleadings in the case.
will render them consistent with the pleadings, and with each other, and as will bring them
within the issues tendered by the pleadings in the case. (8 Ency. Pl. & Pr. 949; Barnes v.
Sabron, 10 Nev. 217; Bank v. Lawrence, 37 Pac. 936; Whitlock v. Mauciet, 10 Or. 166;
Brown v. McHugh, 36 Mich. 433; Edwards v. Nelson, 51 Mich. 121; White v. Abbott, 87 Cal.
245; Marshall v. Golden Fleece Co., 16 Nev. 156.)
Therefore, there is neither evidence, nor finding, nor pleading to show that respondents
had any property in the option or in the proceeds from the sale of the option. No trust of any
kind arises in their favor, since there was no title, interest or estate in or to any of the stock in
the appellant's name or under his control, which in equity or good conscience belonged to the
respondents.
If this be the correct conclusion, then there was no joint ownership or community of
property, no trust of any kind, and no equitable interest or estate in the respondents, in or to
any part of the stock, and the cases cited by respondent are inapplicable. (Warwick v.
Stockton, 36 Atl. 490; Simmons v. Lima Oil Co., 63 Atl. 260; Dow v. McKinney, 9 Allen,
359; Petriv v. Tarrant, 58 N. W. 690; Hughes v. Ewing, 62 S. W. 474-477; Coward v.
Clanton, 122 Cal. 451; Prince v. Lamb, 128 Cal. 128; Miller v. Butterfield, 79 Cal. 62;
Kayser v. Mongham, 6 Pac. 803; Yaeger & Grim's Appeal, 100 Pa. St. 88; and other cases
cited in our opening brief.)
All the connection claimed by respondents with any of these payments is that they
discussed the fact that money was necessary with the defendant Botsford, but that they
could not assist him in any way financially. They had a mere idea or suggestion that
somebody with money could possibly be interested by appellant in the venture. But this
evidence was manifestly an afterthought, and untrue, since the plaintiffs in preparing their
complaint in this action omitted all reference to disbursements and expenditures. And outside
of this evidence there is not even the remotest connection shown between plaintiffs and the
purchase of the option.
The cases cited in respondents' brief are not applicable to the facts of this case. Not one of
them holds that there can be any trust or other equitable estate or interest in property, or in
profits as property, unless the party claiming such estate or interest can show that he has
either directly or indirectly contributed money or property to the venture. There is no resulting
trust in this case. There is no trust ex maleficio. There is no other kind of implied or
constructive trust; for the mere reason that the respondents are not shown to have had any
property rights in the option or in the capital used in acquiring the option. (Latta v. Kilbourn,
150 U. S. 524; 37 Law Ed. 1169; 15 Am. & Eng. Ency. Law, 1186, and cases cited under note
10; Butts v. Cooper, 44 South. 617, 619; Smith v. Smith, 45 South. 168.)
In Camden Land Co. v. Lewis, 63 Atl. 529, the court say: The plaintiff claims that
Sagamore and Sherman farms should be conveyed to it, because it says that the farms were
bought for it; that W. D. Lewis, in making the original agreement to purchase, was then
acting as its officer and agent. We have no doubt that at the beginning of the negotiations and
during the greater part of the time after the owners agreed to sell, and until the deeds were
given, Lewis intended that these farms should go to the complainant eventually. All the
payments, however, were made by him out of his own funds, or at least out of funds which he
thought belonged to him. He charged none of these payments to the company. The company
never became bound to purchase either farm, or to repay Lewis for his disbursements. Before
the deeds were obtained, and at a time when it was exceedingly doubtful whether the Lewises
would be able to complete the payments, a new trust was formed. Money was raised from
persons who had had nothing whatever to do with the previous transactions with the
company, and with it was paid a balance due on the purchase of each farm. Upon a careful
study of the evidence we are unable to find that any enforceable trust is established in favor of
the plaintiff.
See also: Miller v. Butterfield, 79 Cal. 62; Prince v. Lamb, 128 Cal. 120; Coward v.
Clanton, 122 Cal. 454.
There is not a single case, and we challenge the attorneys for the respondents to cite one,
which holds that under the circumstances and facts of this case a party standing in the
position of respondents has an interest in the property acquired by another with his own funds
or credit, or in the proceeds from a sale thereof.
Jones v. Davis, 21 Atl. 1035, relied upon by respondents, does not so hold. In that case
there was a declaration of an express trust, and the agreement was that one of the joint
adventurers should furnish capital and the other personal services. The court said: Davis had
the title, and as between himself and the world was the sole owner; but under his declaration
of trust he had that title subject to an interest of Jones in a moiety of the speculation, to be
adjusted when his advances were reimbursed. Besides, in that case the court merely ordered
the ascertainment of the money value of the profits for the purpose of enabling the court to
award a general pecuniary recovery.
In Delmonico v. Roudebush, 5 Fed. 165, the plaintiff had advanced the money to pay for
certain contracts, which were used in acquiring an interest in the mine. The court said: But
the fact remains that at the time of the appropriation by Roudebush the plaintiff was
interested in the contract, and the use of it by Roudebush was without his consent. This is
enough to enable the plaintiff to share in the advantages secured by Roudebush from the use
of the contract. The ground of relief is the wrong done to the plaintiff in the use of his
means.
The case of Boqua v. Marshall, 114 S. W. 714, which counsel for respondents claim to be
practically on all fours with the present case, is so different in its facts and in the law
applicable to them, that it has absolutely no bearing on the case at bar. In that case there was
no question of ownership of property involved. The action was brought by a member of a
dissolved partnership firm to recover a share of a broker's commission earned by the firm
while it was in existence.
the firm while it was in existence. The action was to recover a sum found due upon an
accounting and statement of the net profits. The option in that case was paid for out of
partnership funds. Said the court, on page 718 of the report: Mordoff and his associates paid
Boqua Jr. $1,000, which was forfeited when they failed to consummate their purchase. Boqua
used this money as a payment to Latham when he secured the October option.
It is true that Boqua, one of the partners, borrowed the sum of $4,000, which he paid to
Latham to prevent the option from lapsing, the option then being partnership property. He
was allowed credit for this amount, with interest, upon the accounting had to ascertain the net
profits. That was merely an advance by one partner for the benefit of the firm, and the
partnership thereafter was the debtor, and the partner advancing the money to the partnership
was its creditor.
What possible similarity that a case has with the case at bar is not readily seen. This is an
action to recover specific property, which the appellant was about to receive in payment for
other property acquired with his own funds, and to which the respondents neither as
individuals nor as members of an alleged joint adventure contributed a single cent. If this
action had been brought for an accounting of net profits, and for the ascertainment of
respondent's alleged share therein, and to recover a sum of money, then the case of Boqua v.
Marshall, supra, might be said to contain some features which resemble some of the features
claimed by the respondents in this case. But even then it would not be authority in the case at
bar. Here, the purchase of the option was not made for a partnership by one of its members
with partnership funds, or with funds advanced by one of the partners to the partnership or for
its benefit. The purchase of the option by appellant was not made under the terms of the
contract alleged in the complaint. That contract did not contemplate the use of capital or the
purchase of an option. Appellant, not having the power or authority of a general partner,
could not have bound the respondents by his acts, and the latter did not offer or agree to
be bound thereby, when they had an opportunity to claim the right to join in the purchase
by virtue of the parol contract.
power or authority of a general partner, could not have bound the respondents by his acts, and
the latter did not offer or agree to be bound thereby, when they had an opportunity to claim
the right to join in the purchase by virtue of the parol contract. Therefore, it could not be said,
as was said in Boqua v. Marshall, 114 S. W. on page 717: He was still a member of the firm
when the new deal was made with Latham on October 27th, which was clearly but a
continuation of the previous arrangement.
On the contrary, as was said in Miller v. Butterfield, supra: Neither was obliged by the
agreement to contribute to the purchase of a mine, though each may have been entitled to the
opportunity to so contribute and to share in the purchase. Certainly they could not, one or
more of them, allow another to make a purchase with his own funds, and at his own risk, and
without being obliged to reimburse him in case of loss, claim the advantages of the bargain in
case of gain. (Miller v. Butterfield, 79 Cal. 64.)
If, however, this court should hold that the appellant must in law be deemed to have
furnished and procured all this capital under the alleged parol contract, then we insist that
under the authorities and for the reasons stated in appellant's opening brief, the action should
be dismissed.
See also: Prince v. Lamb, 128 Cal. 120; Stiles v. Cain, 134 Cal. 170.
SecondThere can be no accounting of any kind in this action. The complaint should be
dismissed.
It is very difficult to ascertain just what the contention of respondents' counsed [counsel] is
in their brief with reference to an accounting. Indeed, it seems that they have no definite
theory upon which to justify an accounting of any kind in this case. Their understanding of
the law and jurisprudence relating to accounting appears to be in a state of chaotic confusion,
since they cite in one breath such widely distinctive cases as Coward v. Clanton, 122 Cal.
451, and Kayser v. Mongham, 6 Pac. 803.
The question raised by appellant in his opening brief does not go to the power of the
court, in a given case, to mete out either legal or equitable relief.
does not go to the power of the court, in a given case, to mete out either legal or equitable
relief. That is too elementary under the system of practice and procedure prevailing in code
states to admit of discussion in this court.
On the outset it must be remembered that the plaintiffs did not ask for an accounting in the
court below, either in their complaint, or at the trial of the action; nor did the trial court
proceed to an accounting, or order the parties to proceed to an accounting, before or during
the trial of the action.
The circumstances surrounding this case are rather anomalous. The complaint shows no
case for an accounting at all. It alleges a right in the plaintiffs, based upon a parol contract, to
receive from the defendant Botsford two-thirds of the gross amount of a certain broker's
commission, payable in shares of stock, which the plaintiffs aver to have been earned by the
defendant Botsford through personal efforts, and with the assistance of personal services
rendered by the plaintiffs to the defendant Botsford under the alleged parol agreement.
The complaint further alleges that the defendant Botsford had denied the right of plaintiffs
to share in said commission; that he was about to collect it; that he was insolvent, and absent
from the state; and that the plaintiffs had no adequate remedy at law.
The plaintiffs therefore by their complaint sought to intercept the stock, before it was
delivered to the defendant Botsford by the party for whom it was payable, and the complaint
prayed for purely equitable relief. It asked that the plaintiffs be decreed to be the owners, and
entitled to the possession of two-thirds of the stock, and for an injunction to prevent the stock
from being delivered to the defendant Botsford.
Assuming for the sake of argument, without admitting, that the complaint shows an
equitable estate or interest, arising from some kind of an implied trust, in favor of the
plaintiffs in two-thirds of the gross number of shares of stock alleged to be due and
receivable, it is clear that the complaint alleges no occasion for an accounting.
clear that the complaint alleges no occasion for an accounting. There was nothing to
ascertain, according to the complaint; and the defendant had nothing to account for, since the
stock had not yet been delivered to him. In fact, an accounting would be inconsistent with the
allegations of the complaint.
Likewise, the complaint excludes the possibility of damages, for the same reasons.
Therefore, the action being purely equitable, and no damages being alleged or possible
under the facts shown, the district court would have been powerless under the pleadings to
give final relief in this action in the form of a judgment at law for the recovery of a sum of
money equal to the value of plaintiff's alleged proportion of the stock. (Prince v. Lamb, 128
Cal. 125-126; S. F. P. Co. v. Fairfield, 134 Cal. 225; Hawes v. Dobbs, 33 N. E. 560; 1
Pomeroy's Eq. Juris., 3d ed., secs. 170, 171.)
See note to Bradley v. Aldrich, 100 Am. Dec. 534.
It follows that, even if the evidence had disclosed that the defendant Botsford had already
received the stock at the time of the commencement of the action and converted it into money
before the injunction was issued, the plaintiffs could not have recovered the value of the stock
in money under the pleadings in this action. (Prince v. Lamb, supra; Faulkner v. Nat. Bank,
130 Cal. 258; Hawes v. Dobbs, 33 N. E. 560; Dykeman v. Keeney, 154 N. Y. 483.)
It is claimed, however, that since the defendant Botsford obtained possession of the stock
during the trial, and still had it in his possession or under his control at the trial and when the
second injunction was issued, that the court below had the power to make the defendant
Botsford account for the stock itself in kind, if not for its value in money, and as if it were
trust property in his hands belonging to the plaintiff.
In our opening brief, we have cited authorities to show that there was no trust and that the
plaintiffs had no property right in the stock, under the facts alleged in the complaint. The
contract relied upon left the plaintiffs merely the creditors, at the end, of the defendant
Botsford.
tiffs merely the creditors, at the end, of the defendant Botsford.
See also: Coward v. Clanton, 122 Cal. 451; 1 Pomeroy's Eq. Juris., sec. 178;
Kammermayer v. Hilz, 82 N. W. 689; Hopkins v. Hopkins, 37 Atl. 371.
But, be that as it may, the court did not order the defendant to so account for the stock, by
producing the same and delivering to the plaintiff the share claimed by them. On the contrary,
the decree is in rem and orders a cancelation of the stock on the books of the corporation, and
the transfer and issuance of the stock by the corporation. However, the disposition of the
question depends upon entirely different principles, whereby it becomes immaterial to inquire
whether or not that error in the judgment could be cured by merely ordering a new trial of the
action.
The evidence and the findings show that the stock was not earned as a broker's
commission, and that the personal efforts or services of the parties were powerless to start the
venture contemplated by the alleged oral agreement. The owners of the controlling interest in
the Combination Mines Company did not desire the services of brokers or agents to find a
purchaser for their property. They were not looking for a purchaser and had no present
intention to sell at all. In other words, the parties found no market for their services, and the
venture concerning which they had agreed was at an end, so far as a broker's commission was
concerned, when it was found that the option could not be secured except by the use of large
sums of money.
The plaintiffs had no money nor the ability to procure any. The defendant Botsford took a
partner into the new venture, who furnished a part of the money required to purchase the
option. The remaining part of the purchase fund, including the sum of money paid to Mr.
Moore, was furnished and provided by the defendant Botsford. The plaintiffs did nothing,
provided nothing. They submitted in silence to being excluded by the defendant from the
purchase and sale of the option, and were willing to be "kept in the dark."
were willing to be kept in the dark. In other words, according to their own story, the
plaintiffs sat by in silence and awaited the result.
From these premises we draw several conclusions:
1. The findings and the evidence show that the alleged parol agreement was either
abandoned, or else that while it remained executory the defendant Botsford repudiated it,
because of the unexpected conditions, and proceeded to conduct the enterprise at his own
cost, in his own name and for his exclusive benefit, and excluded the plaintiffs from it
because they could not and did not provide any of the necessary money.
In either event, the plaintiffs had no legal interest in the venture, and were not part owners
of the option, nor entitled to any of the proceeds derived from the sale thereof. And they were
not entitled to an accounting of any kind. the purchase and sale did not transpire under the
alleged parol agreement. (Powell v. Maguire, 43 Cal. 11; Mann v. Bowen, 85 Ga. 618; Prince
v. Lamb, 128 Cal. 127, 128; Hyer v. Richmond T. Co., 168 U. S. 484; Hawes v. Dobbs, 33 N.
E. 560; Latta v. Kilbourn, 150 U. S. 524; 15 Am. & Eng. Ency. Law, 1186-1187; Camden
Land Co. v. Lewis, 63 Atl. 529-530; Butts v. Cooper, 44 South. 619; Smith v. Smith, 45
South. 168; Kayser v. Mongham, 6 Pac. 803; Miller v. Butterfield, 79 Cal. 62; Emery v.
Mason, 75 Cal. 222.)
As was said in Miller v. Butterfield, 79 Cal. 62, 64: As to mines bought, the parties were
tenants in common only upon the condition (necessarily implied), that they should contribute
equally to the purchase fund.
Neither was obliged by the agreement to contribute to the purchase of any particular
mine, though each may have been entitled to the opportunity to so contribute, and to share in
the purchase.
Certainly they could not, one or more of them, allow another to make a purchase with his
own funds, and at his own risk, and without being obliged to reimburse him in case of loss,
claim the advantages of the bargain in case of gain.
We think that the fact that the defendant alone provided the funds for the purchase of the
properties in question, that the plaintiffs not only did not, but could not, and were in no wise
bound to, contribute any share of the purchase money, is fatal to their claim to an interest in
such properties.
2. But, even if this court were inclined to hold that the purchase and sale of the option took
place under the alleged parol agreement, and that it was a continuing and single transaction,
the contract itself would be so unfair to the appellant, and the assistance given him by the
plaintiffs so grossly inadequate, that no court of equity would enforce it in any form. (Prince
v. Lamb, 128 Cal. 128, and authorities cited in appellant's opening brief.)
3. Moreover, the profits alleged and the profits proved and found are two widely
different propositions.
The contract relied upon deals with conventional profits. It contemplates no outlay of
capital; hence there could be no real profits, as that term is usually understood among
merchants. (Coward v. Clanton, 122 Cal. 454.)
As was said in another case, the contract, taken as a whole, is not one for a division of
profits, but rather for a moiety of whatever might be received in compensation for the
services pooled under the alleged parol agreement. (Prince v. Lamb, 128 Cal. 126.)
The contract alleged in the complaint provided for no capital. Within the contemplation of
the parties to it no money would be required to carry it out. They expected to merely give
time and services. Hence the profits they expected were the emolument, the compensation,
the commissions paid to brokers or agents effecting the sale of property belonging to other
persons. The business covered by the contract was of such a character that loss could not
occur. They were neither to purchase nor sell property. They were to incur no expense. They
were to act simply as brokers, finding vendor and purchaser and bringing the two together.
The option in the alleged parol agreement was nothing more than an agent's authority to
negotiate the sale of property of his principal.
parol agreement was nothing more than an agent's authority to negotiate the sale of property
of his principal. Hence the profits of the contract meant the gross amount to be received,
without any deduction, and of that each was to have one-third. Thus the contract of the parties
fixed the profits of each as definitely as could be, having reference to a future event.
But the profits indicated by the findings of fact and the evidence were net profits, or
real profits; or so much of the entire difference between the advances and the value of the
returns, as arose exclusively from the capital employed. (23 Cyc. 586, and authorities cited.)
Those profits were based upon the use of capital, and involved a purchase and sale of
property by the appellant, and his associate, Davis, as principals.
Obviously, the complaint sets forth no cause of action with reference to such profits; and
the profits attempted to be determined by the trial court in its findings of fact constituted a
subject, and involved a transaction, entirely foreign to and outside of the issues in the case.
No such profits could legally be ascertained or distributed in this action. (Bachman v.
Sepulveda, 39 Cal. 688; Perkins v. Sierra Nevada, 10 Nev. 413; Frevert v. Henry, 14 Nev.
195; Hopkins v. Orcutt, 51 Cal. 537; Riverside Water Co. v. Gage, 89 Cal. 410; Prince v.
Lamb, 128 Cal. 126-128; Booker v. Aitken, 140 Cal. 472; San Luis v. Estrada, 117 Cal. 182;
Sigourney v. Zellerbach, 55 Cal. 431; Sterling v. Hansen, 1 Cal. 478; Marshall v. Golden
Fleece, 16 Nev. 156, and authorities cited in appellant's opening brief.)
If the foregoing premises are correct, then it follows that no accounting of any sort could
be had in this action.
The remedy of accounting, in a case like this, is a mere incident to the main relief which
the court might possibly grant in the action. (Root v. L. S. & M. S. R. Co., 105 U. S. 208-217;
1 Pomeroy's Eq. Juris., sec. 237, p. 341.)
If the court cannot grant any relief, because the plaintiffs have not shown a right to any
relief in the action, the remedy of accounting must naturally fail as well.
tiffs have not shown a right to any relief in the action, the remedy of accounting must
naturally fail as well. It is not a question of power in the district court to administer both legal
and equitable remedies, as erroneously assumed by counsel for respondents. It is a question of
whether or not the plaintiffs have shown a cause of action entitling them to any relief. (Hawes
v. Dobbs, 33 N. E. 560, 561; Prince v. Lamb, 128 Cal. 120.)
But, apart from the question of power to retain the case for the purpose of administering
any suitable remedy, the court below could not have properly retained the case, and this court
could not now properly reverse the judgment for the mere purpose of granting a new trial.
The plaintiffs testified, and their counsel admit, that before the option was even acquired
by the defendant Botsford, the plaintiffs had knowledge that large sums of money were
required to secure the same. Yet they failed to allege such fact in their complaint and to ask
for an accounting of net profits. Clearly, therefore, they did not bring this action for a share
of the gross receipts in good faith. They came into equity without offering to do equity. They
came into equity without offering to do equity. Under those circumstances the court will not
retain the case for the purpose of giving relief by way of damages or any other pecuniary
relief. (4 Pomeroy's Eq. Juris., sec. 1410.)
And the evidence discloses no case for an accounting. (Dorr v. McKinney, 9 Allen, 359;
Corbin v. Holmes, 154 Fed. 598-601; Simmons v. Lima Oil Co., 63 Atl. 260.)
Detch & Carney, Thomas, Bryant & Malburn, and R. G. Withers (Mack & Green and
Horatio Alling, of counsel), for Respondents.
This action is brought by the plaintiffs L. C. Van Riper and Joseph Hutchinson to recover
from the defendant Charles H. Botsford two-thirds of the profits of a deal whereby the
Goldfield Mohawk Mining Company and other mining interests paid as a commission to
the defendant, Botsford, 100,000 shares of the Goldfield Consolidated mining stock then
valued at $1,000,000, in consideration of his turning over a certain option which he held
on the Combination Mines Company, which made it possible to merge the properties now
constituting the Goldfield Consolidated Mines Company, and do away with certain
threatened apex litigation then pending and other suits about to be started.
other mining interests paid as a commission to the defendant, Botsford, 100,000 shares of the
Goldfield Consolidated mining stock then valued at $1,000,000, in consideration of his
turning over a certain option which he held on the Combination Mines Company, which
made it possible to merge the properties now constituting the Goldfield Consolidated Mines
Company, and do away with certain threatened apex litigation then pending and other suits
about to be started. This commission of $1,000,000 was earned during a period not in excess
of forty-five days from the time the parties conceived and agreed to carry out their agreement
along the lines of merging the properties to avoid litigation, and is but illustrative of the
opportunities which are ever present in mining excitements in great mining camps to those
who may be quick, able, and fortunate enough to grasp an opportunity and successfully put it
through to a termination. Though this action was commenced by the respondents L. C. Van
Riper and Joseph Hutchinson as plaintiffs against Charles H. Botsford and other
above-named appellants as defendants, the real controversy is between the respondents L. C.
Van Riper and Joseph Hutchinson and the appellant, Charles H. Botsford. All the other
appellants joined with Botsford are in the case nominally, and so far as this case is concerned
do not seem to have any real interest in the dispute.
The complaint is one based on the doctrine of joint adventure, a doctrine of modern origin,
and in effect alleges, in our judgment, the necessary allegations, which, if proved, entitle the
plaintiffs to the judgment accorded them. The complaint in effect alleges:
FirstThat the plaintiffs and defendant Botsford entered into an agreement to use their
joint efforts for the purpose of securing a certain option and selling the same.
SecondThat it was agreed that defendant Botsford should be the active agent of the
adventure in the securing of the option and the sale of the same.
ThirdThat the plaintiffs assisted in the furtherance of the venture in divers and sundry
ways by counsel, introductions, and personal efforts.
FourthThat it was agreed in the event of the consummation of the venture the plaintiffs
and the defendant Botsford should share equally in the profits realized.
FifthThat the adventure was successfully terminated under said agreement, and that the
defendant Botsford was to receive 100,000 shares of stock of the value of $1,000,000 as
compensation.
SixthThat defendant Botsford was attempting to get possession and control of all of
said shares of stock, and refused to recognize the plaintiffs as being entitled to any portion of
the same as compensation for the securing and sale of said option.
SeventhThat the defendant was without this state and insolvent.
EighthFollows then the prayer that the plaintiffs be declared to be the owners of and
entitled to a one-third each of any and all compensation either in stock or otherwise, which
the defendant was entitled to by virtue of the consummation of the venture, and for an
injunction restraining, and so forth.
To this complaint a demurrer was filed, and thereafter an answer, which was thereafter
amended. The answer denies all of the allegations of the complaint which would in any way
connect the plaintiffs with the said defendant Botsford as a coadventurer in putting through
the deal, and denies that there was ever any agreement or contract entered into at any time
between the three parties concerning the subject-matter in the suit. The answer squarely raises
the issue as to whether such an agreement, as alleged in the complaint, was made, and upon
this substantial issue the case went to trial.
It appears from the testimony adduced, a record of some 3,000 pages, that Charles H.
Botsford, the appellant, a New York promoter, an educated gentleman, and a mining expert of
some reputation, and a business man of large affairs, during the fall of 1906 came to
Goldfield, Nevada, when that camp was at the height of its mining excitement and
prosperity.
Nevada, when that camp was at the height of its mining excitement and prosperity. He came
there for the purpose of investigating the conditions of a lease controlled by the plaintiff Van
Riper, whom he had met in New York. Mr. Botsford had invested $15,000 in this lease, and
more money being required to work said lease, the purpose of his visit to Goldfield was to
determine the advisability of saving the investment, which would have been lost providing
further capital was not forthcoming.
While in Goldfield on this mission, Mr. Botsford met the plaintiff Joseph Hutchinson, a
mining engineer and promoter of wide experience and reputation and commendable ability,
and learned that litigation had been or was about to be commenced by the Combination
Mines Company against the Mohawk properties, claiming that the Mohawk veins apexed in
the Combination ground. At this time this threatened litigation, which, unless averted by
compromise or otherwise determined, would paralyze the prosperity of the district, then in the
throes of the wildest kind of a mining boom, caused the people of the camp of Goldfield the
most tense feeling of excitement, apprehension, and anxiety, awaiting and hoping for a
peaceful compromise or determination of this gigantic legal battle which seemed imminent,
and which litigation would, for some time at least, tie up some of the richest mines in the very
heart of the Goldfield mining district.
It is contended by Hutchinson, and so alleged in the complaint, and found in the findings
of the lower court, which, after a most careful review, owing to the great conflict of testimony
on all the material issues, we have concluded not to disturb: That he conceived the idea of
having the Combination Mines Company and the Goldfield Mohawk Company merge their
interests for the purpose of avoiding threatened litigation over the extralateral and other rights
of said companies and the mining ground claimed and owned by them, respectively, and
during the month of September, 1906, he called the attention of his coplaintiff, L. C. Van
Riper, and of the defendant Charles H. Botsford thereto, and submitted to them the idea of
securing an option upon the control of the capital stock of said companies or either of
them, and also submitted to them his scheme of consolidating or merging the interests of
said companies.
securing an option upon the control of the capital stock of said companies or either of them,
and also submitted to them his scheme of consolidating or merging the interests of said
companies. That the plaintiff L. C. Van Riper and the defendant Charles H. Botsford
immediately became interested in such suggestions and in the scheme of consolidation or
merger proposed by the plaintiff Hutchinson, and thereafter and during the months of
September and October, 1906, they, in conjunction with plaintiff Joseph E. Hutchinson, made
investigations and consulted with each other as to the most feasible plan of securing an option
upon the control of the capital stock of said companies, or either of them, and also the most
feasible plan of consolidating and merging the interests of said companies.
During all of said time the plaintiffs and the defendant Charles H. Botsford were jointly
interested in other promotions and in other business enterprises. On or about the 27th day of
October, 1906, in Goldfield, Nevada, an agreement was made and entered into by and
between the defendant Charles H. Botsford and the plaintiffs L. C. Van Riper and Joseph
Hutchinson, wherein and whereby they agreed to adopt the ideas and suggestions made by the
plaintiff Joseph Hutchinson, and to use their joint efforts to secure an option upon the control
of the capital stock of the Combination Mines Company for the purpose of effecting a sale
thereof, and they also agreed to use their joint efforts to bring about a consolidation or merger
of the interest of the Combination Mines Company with other corporations then existing, or
thereafter to be organized.
It was also agreed by and between said parties in and by the terms of said agreement that
any and all profits, commissions, or compensation that might be realized or made from such
enterprise or from their or either of their efforts in the premises should be divided equally
between them; that is to say, that the defendant Botsford should receive one-third thereof, and
the plaintiffs Hutchinson and Van Riper should each receive one-third thereof.
thereof. It was also agreed by and between the parties in and by the terms of said agreement
that the defendant Botsford should have the exclusive charge and control of all negotiations
relative to the obtaining of said option and the sale thereof and the effectuating of such
merger, but that in conducting such negotiations the defendant Botsford should act for and
represent the plaintiffs as well as himself.
It was also agreed that each of the plaintiffs should render such services in the premises as
might be required of him by the defendant Botsford and under his direction. Pursuant to the
terms of the agreement, and on or about the 14th day of November, 1906, the plaintiffs and
the defendant Botsford secured an option upon the controlling interest in the capital stock of
the Combination Mines Company, said option being taken in the name of the defendant
Botsford to enable him to more effectually conduct the negotiations necessary for the sale
thereof and the consummation of said merger, but that said option was taken in his name and
held by him for the joint benefit of himself and each of the plaintiffs.
Thereafter, on or about the 5th day of December, 1906, the defendant Botsford sold and
assigned said option to the defendant Goldfield Consolidated Mines Company. That by
securing the said option and the sale and assignment thereof to the defendant Goldfield
Consolidated m[M]ines Company a merger was brought about and effected between the
Combination Mines Company and the Goldfield Mohawk Mining Company. That during all
of the negotiations which resulted in the obtaining of said option and the sale and assignment
thereof to the defendant Goldfield Consolidated Mines Company, the plaintiffs rendered such
services as were required of them. That at all of said times the defendant Botsford acted under
and in accordance with the terms of the agreement aforesaid, and during all of such
negotiations the defendant Botsford acted for and represented the plaintiffs as well as himself.
That, in consideration of the obtaining of said option and the sale and assignment thereof to
the defendant Goldfield Consolidated Mines Company, the defendant Botsford was to
receive, and did receive, for the joint benefit of himself and the plaintiffs, 100,000 shares
of the capital stock of the Goldfield Consolidated Mines Company, which said stock was
worth at the time of the commencement of this action $1,000,000, or $10 per share.
thereof to the defendant Goldfield Consolidated Mines Company, the defendant Botsford was
to receive, and did receive, for the joint benefit of himself and the plaintiffs, 100,000 shares
of the capital stock of the Goldfield Consolidated Mines Company, which said stock was
worth at the time of the commencement of this action $1,000,000, or $10 per share. That out
of said 100,000 shares so received by the defendant Botsford 55,000 shares thereof were
issued and delivered to parties other than the plaintiffs, who advanced moneys to enable the
plaintiffs and the defendant Botsford to make the initial payments upon said option.
The defendant Botsford received from the defendant Goldfield Consolidated Mines
Company 45,000 shares of its capital stock as net profit, commission, and compensation for
securing the option aforesaid and for the sale and assignment thereof to the said defendant
Goldfield Consolidated Mines Company. That said stock was received by the defendant
Botsford under and in accordance with the terms of the agreement made and entered into
between himself and the plaintiffs L. C. Van Riper and Joseph Hutchinson, and said stock
was received by him for the joint benefit of himself and the plaintiffs Van Riper and
Hutchinson. That at the time of the commencement of this action an injunction was issued out
of the lower court restraining the defendant Goldfield Consolidated Mines Company from
issuing or delivering said stock to any person or persons, company or companies, until the
final determination of this action; but that, notwithstanding such injunction, the defendant
Goldfield Consolidated Mines Company did, at the request of the defendant Botsford, issue to
and in the name of John S. Cook as trustee, certificates representing said 45,000 shares of the
capital stock of said company.
During the time said certificates were issued and held by said John S. Cook as trustee,
dividends amounting to the sum of $9,000 were declared upon said 45,000 shares of stock,
and that all of said sum of $9,000 was paid to and received by the defendant Botsford, and by
him appropriated to his own use, and that no part thereof was paid to the plaintiffs, or
either of them.
appropriated to his own use, and that no part thereof was paid to the plaintiffs, or either of
them. On or about the 5th day of December, 1907, the injunction heretofore issued in this
action was by order of the lower court dissolved, and immediately thereafter the certificates
representing the said 45,000 shares of the capital stock of the Goldfield Consolidated Mines
Company which had been issued to, and in the name of, John S. Cook, as trustee, were
indorsed by him and delivered to the defendant Botsford, and thereafter the defendant
Botsford surrendered said certificates to the defendant Goldfield Consolidated Mines
Company, and caused new certificates in lieu thereof to be issued as follows, to wit: A
certificate or certificates representing 2,000 shares thereof in the name of George S. Nixon
and a certificate or certificates representing 43,000 shares thereof in the name of M. Toping.
That no consideration whatever was paid by said M. Toping or received by the defendant
Botsford for the certificates so issued in the name of M. Toping, and no part of said stock was
ever delivered to the said M. Toping, but the certificates representing all of said 43,000 shares
of stock were delivered to the defendant Botsford, and said certificates were issued in the
name of M. Toping at the request of the said defendant Botsford, and to subserve his own
purposes, and the defendant Botsford thereafter procured and caused the said M. Toping to
indorse the same, and the defendant Botsford has at all the times since the issuance of said
certificates had the same in his possession and under his control. That certificates
representing 30,000 shares of the capital stock of the Goldfield Consolidated Mines Company
so issued in the name of M. Toping, and delivered to the defendant Botsford, still remain in
the possession and under the control of said defendant Botsford.
During the trial of the above-entitled cause in the lower court and on or about the 29th day
of January, 1908, an injunction was issued out of said court, restraining the defendant
Botsford from transferring or in any manner disposing of 30,000 shares of the capital stock of
the Goldfield Consolidated Mines Company so held by him for which certificates were
issued in the name of M.
field Consolidated Mines Company so held by him for which certificates were issued in the
name of M. Toping, and also restraining the defendant Goldfield Consolidated Mines
Company from transferring any part of said 30,000 shares of the capital stock of said
company, for which certificates were issued in the name of M. Toping, or from doing any
other act that would render ineffectual any judgment that may be rendered in this action.
At or about the time the plaintiffs and the defendant Botsford secured an option upon the
stock of the Combination Mines Company, an agreement was made and entered into by and
between the defendant Botsford and C. J. Moore wherein and whereby it was agreed that the
said Moore, in consideration of services rendered or to be rendered by him in and about the
premises, should receive a share of whatever profits the defendant Botsford might make out
of said proposed merger, but this agreement was thereafter modified by said parties, and, in
lieu of an interest in the profits, said Moore was paid the sum of $25,000 in cash, and said
sum of $25,000 was accepted by said Moore in full payment of any and all services rendered
or performed by him in the premises, and in satisfaction of any claim that he might have to an
interest in said profits under the terms of the agreement made and entered into with him as
aforesaid. That the defendant Botsford did not expend any moneys of his own in the securing
of said option or in the effecting of said merger, but that all moneys necessary for that
purpose were secured from other parties, and that said parties were repaid and compensated
for the moneys advanced by them out of the 100,000 shares of the capital stock of the
Goldfield Consolidated Mines Company, which was received as a gross profit, commission,
and compensation for the securing and assignment of said option. That the plaintiffs have
fully performed each and all of the terms, covenants, and conditions of said agreement to be
by them kept and performed, and they have during all of the negotiations which resulted in
the securing of said option and the effecting of said merger furnished the defendant Botsford
with such information and money and have performed such services as were required of
them.
defendant Botsford with such information and money and have performed such services as
were required of them. That the agreement made and entered into between the defendant
Botsford and the plaintiffs was acted upon by all of the parties thereto.
On these findings of fact the lower court awarded a judgment to each of the plaintiffs of
15,000 shares of the capital stock of the Goldfield Consolidated Mines Company as their
portion of the commission in stock and $6,000 accrued dividends on said 30,000 shares of
stock, less one-third each of $25,000 in cash which was paid to Mr. Moore by appellant.
From this judgment and order of the lower court denying appellant's motion for a new trial,
this appeal is taken.
It is strenuously argued by the able and eloquent counsel who represent the appellant in
this case that the whole agreement, as alleged in the complaint, never in fact existed, and
from start to finish there was a conspiracy on the part of the respondents to defraud the
appellant out of the two-thirds of the profits of this deal, which he contends was conducted
solely by him and without any agreement whatever between the respondents L. C. Van Riper
and Joseph Hutchinson and himself, and that they were not in any way interested or
concerned.
The lower court, in its opinion, in speaking of this conspiracy to deprive Botsford out of a
substantial portion of his commission, says: It is very earnestly and eloquently contended in
Mr. Botsford's behalf that a conspiracy was entered into by the plaintiffs and Webster Bishop
to defraud Botsford of a substantial part of the fruits of his labors. There is absolutely no
evidence in this case which would warrant the court, even by the remotest inference, in
concluding that a conspiracy was entered into. A conspiracy must be established by clear and
convincing proofs, and not by the tenuous inferences or exsufflicate surmises of counsel,
however cunningly awakened or eloquently depicted.
A very careful review of the testimony in this case convinces us, also, that such a
conspiracy has not been proven, neither do we feel warranted in saying, after a most
thorough examination of the entire record, that there is not such sufficient substantial
evidence introduced to have warranted the lower court in its findings on which it
predicted the judgment in this case against the appellant.
convinces us, also, that such a conspiracy has not been proven, neither do we feel warranted
in saying, after a most thorough examination of the entire record, that there is not such
sufficient substantial evidence introduced to have warranted the lower court in its findings on
which it predicated the judgment in this case against the appellant. Further, we are of the
opinion that there is such a substantial conflict of testimony on all the material points and
issues raised that we would not be justified or authorized to depart from the well-established
law in this state that, where there is a substantial conflict in the testimony on material issues,
this court will not disturb the findings of fact in the lower court.
The main point in this whole controversy is, as we view the case, whether or not such a
legal enforceable agreement has been pleaded under the doctrine of joint adventure in the
complaint of respondents as to justify the lower court, if such an agreement as pleaded is
proven, to have rendered the judgment and decree that it did in behalf of plaintiffs. We are of
the opinion that the complaint states a good cause of action under the doctrine of joint
adventure, and the findings of fact on which the judgment of the lower court was found are
sufficiently broad to maintain that judgment.
Counsel for the appellant contend that no legal agreement is pleaded, in that there is no
consideration on the part of respondents sufficiently plead or proven to warrant the court in
enforcing the contract alleged in the complaint, even conceding that such an agreement as
pleaded was entered into. Counsel seem to be of the impression by reason of the fact that
appellant did most of the negotiations and work of putting through the deal that the small part
played by respondents, even if their testimony granted be true, would not be sufficient
consideration on which to create a valid contract that could be enforced. In this respect we
totally disagree. If the respondents entered into a mutual agreement with appellant, as alleged
in the complaint, to secure the option in question for the purpose of making the deal, and did
no more than to make the suggestion by advice and counsel, and pointed out to appellant
the status of the properties in controversy and the scheme which led up to the deal, and
placed the appellant in touch with the situation, and the appellant agreed to do all the
other work in consummating the idea and plan of merging the properties into the deal,
and agreed with respondents to divide equally the profits of the deal, this mutual
agreement, founded on mutual promise of aid, assistance, counsel, and effort, would be a
sufficient consideration to support the contract under the doctrine of joint adventure.
more than to make the suggestion by advice and counsel, and pointed out to appellant the
status of the properties in controversy and the scheme which led up to the deal, and placed the
appellant in touch with the situation, and the appellant agreed to do all the other work in
consummating the idea and plan of merging the properties into the deal, and agreed with
respondents to divide equally the profits of the deal, this mutual agreement, founded on
mutual promise of aid, assistance, counsel, and effort, would be a sufficient consideration to
support the contract under the doctrine of joint adventure. (23 Cyc. 454; Alderton v. Williams,
139 Mich. 296, 102 N. W. 753; King v. Barnes, 109 N. Y. 267, 16 N.E. 332; O'Hara v.
Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Boqua v. Marshall, 88 Ark. 373, 114 S. W.
714; Gorham v. Heiman, 90 Cal. 346, 27 Pac. 289; Jones v. Patrick, 140 Fed. 403; Shea v.
Nilima, 133 Fed. 209, 66 C. C. A. 263.)
We do not wish to be understood, however, from what we have stated, that we doubt
respondents did not do a great deal more than appellant gives them credit for in bringing to a
successful termination this mining deal from which the profits of the commission sued upon
originated. The lower court in commenting on this point very properly says: Common
honesty requires that every person who makes an agreement should effectually live up to it,
whether the agreement involves a merger of large mining interests or is simply an ordinary
transaction, and the mere fact that one of the parties may have contributed more than his
quota of talent and energy to the consummation of the deal does not justify him in disavowing
his promise, or of refusing to give to his associates what he agreed should be theirs.
The law is well established that property purchased or acquired in connection with a joint
adventure or profits realized from a joint adventure of the joint property of the parties
interested, where one party holds title to the same, that such property is held in law to be the
property of his associates, and the party holding the same is holding their proportionate share
as trustee for them.
(23 Cyc. pp. 455-459; Hayden v. Eagleson, 15 N. Y. St. Rep. 200; Fueschsel v. Belleshiem,
14 N. Y. St. Rep. 610; Richardson v. McLean, 80 Fed. 854, 26 C. C. A. 190; Morris v. Wood,
35 S. W. 1013; Lyles v. Styles, 15 Fed. Cas. p. 1143, No. 8,625; Cunningham v. Davis, 47 S.
W. 140; Matthews v. Kerfoot, 64 Ill. App. 571; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl.
1035; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; Calkins v. Worth, 215 Ill. 78, 74
N. E. 81; Putnam v. Burrill, 62 Me. 44; McCutcheon v. Smith, 173 Pa. 101, 33 Atl. 881;
Getty v. Devlin, 54 N. Y. 403; Church v. Odell, 100 Minn. 98, 110 N. W. 346; Knapp v.
Hanley, 108 Mo. App. 353, 83 S. W. 1005; Hancock v. Tharpe, 129 Ga. 812, 60 S. E. 168;
Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220;
Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; Williams v. Love, 2 Head, 80, 73 Am. Dec.
191; King v. Wise, 43 Cal. 628.)
We further find that the law is well established that the relation between joint adventurers
is fiduciary in its character, and the utmost good faith is required of the trustee, to whom the
deal or property may be entrusted, and that such trustee will be held strictly to account to his
coadventurers, and that he will not be permitted by reason of the possession of the property or
profits, whichever the case may be, to enjoy an unfair advantage, or have any greater rights in
the property by reason of the fact that he is in possession of the property or profits as trustee
than his coadventurers are entitled to. The mere fact that he is intrusted with the rights of his
coadventurers imposes upon him the sacred duty of guarding their rights equally with his own
and he is required to account strictly to his coadventurers, and, if he is recreant to his trust,
any rights they may be denied are recoverable. (23 Cyc. 455; Cole v. Bacon, 63 Cal. 571;
Hambleton v. Rhind, 84 Md. 456, 36 Atl. 597, 40 L. R. A. 216; Seehorn v. Hall, 130 Mo.
257, 32 S. W. 643, 51 Am. St. Rep. 562; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904;
Getty v. Devlin, 54 N. Y. 403; Hollister v. Simonson, 18 App. Div. 73, 45 N. Y. Supp. 426;
Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Delmonico v. Roudebush, 5 Fed.
165; Morris v. Wood, 35 S. W. 1013; Knapp v. Hanley, 10S Mo.
Morris v. Wood, 35 S. W. 1013; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005;
O'Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Calkins v. Worth, 215 Ill. 78, 74
N. E. 81; King v. Wise, 43 Cal. 628.)
Counsel for appellant seem to lay stress on the fact that by reason of the appellant putting
up most of the costs in putting through this deal, and the fact that the respondents were
financially embarrassed, that this is further proof indicative of the weakness of or lack of the
consideration of the agreement sought to be enforced. As before stated, the mere mutual
promise of the parties furthering and rendering their aid, advices, and suggestions, if agreed to
was sufficient consideration to support the contract under joint adventure; but the law is well
established that the furnishing of capital by the parties to a joint adventure is not necessary to
the validity of the contract, so long as the original agreement on which the contract was
entered into was carried out. (Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Van Tine v.
Hilands, 131 Fed. 124.)
The evidence discloses, and the findings of the lower court are to the effect, that the
respondents performed their part of the contract entered into, and stood ready at all times to
further aid, as far as laid in their power, pursuant to their agreement, the consummation of the
deal originally agreed upon. That they were not called upon to do so by appellant is not a
sufficient reason in law or equity to invalidate their right to share in the profits of the deal,
because the appellant saw fit to take the reins and do most or all of the work himself after the
original agreement was made and entered into.
The fact that it required large sums of money to carry the deal through, counsel for
appellant seem to believe vitiates the consideration of the agreement alleged, for the reason it
is admitted respondents were practically penniless. We fail to see any merit in this contention.
Appellant himself did not possess the means to carry the transaction through, and, in order to
acquire means to do so, appellant bartered away 50,000 shares of the commission which
belonged jointly to the parties to the agreement, and which was valued at $500,000, for
the use of $50,000 in cash from Mr.
sion which belonged jointly to the parties to the agreement, and which was valued at
$500,000, for the use of $50,000 in cash from Mr. Davis, and bartered away another 5,000
shares of the commission to result from the deal in consideration of $25,000 cash advanced
by Mr. Haskell. Money was not the consideration of the agreement advanced on the part of
the respondents, nor is it so pleaded nor contended, but it was the scheme, claimed to have
originated in the brain of Hutchinson, and supplemented by advice and aid of Hutchinson and
Van Riper, and bringing to the attention of Botsford the possibilities of the deal, which are
the very good and sufficient considerations advanced by respondents, as against the carrying
out of the plan of the deal by Botsford, to the exclusion of seeking or accepting less and less
aid and advice ex industria from the respondents, as the success of the venture became more
apparent and effected.
Money advanced by one party to a joint adventure is held to be a loan to the venture, for
which the party is entitled to be reimbursed out of the proceeds of the venture; but, by reason
of the advancing of such money, it does not entitle the party so advancing to any superior
right as against his coadventurers. (23 Cyc. 457, 458; Boqua v. Marshall, 88 Ark. 373, 114 S.
W. 714; Thurston v. Hamblin, 199 Mass. 151, 85 N. E. 82; Stone v. Wright Wire Co., 199
Mass. 306, 85 N. E. 471; Burhans v. Jefferson, 76 Fed. 25, 22 C. C. A. 25; Sanguinett v.
Webster, 153 Mo. 343, 54 S. W. 563; Woodward v. Holmes, 67 N. H. 494, 41 Atl. 72; Leamy
v. Fisler, 52 Atl. 703; Rankin v. Black, 1 Head, 650; Crenshaw v. Crenshaw, 61 S. W. 366,
22 Ky. Law. Rep. 1782; Williams v. Love, 2 Head, 80, 73 Am. Dec. 191; Gee v. Gee, 2
Sneed, 395; Withers v. Pemberton, 3 Cold. 56; Furman v. McMillian, 2 Lea, 121; Finlay v.
Stewart, 56 Pa. 183; Stover v. Flack, 30 N. Y. 64; Doane v. Adams, 15 La. Ann. 350; Bell v.
McAboy, 3 Brewst. 81.)
The law is also well established that, in the absence of an express agreement, the law
implies an equal division of the profits of a joint adventure without regard to any inequality of
contribution. (23 Cyc. 459; Wetmore v. Crouch, 150 Mo.
Crouch, 150 Mo. 671, 51 S. W. 738; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005;
Van Tine v. Hilands, 131 Fed. 124; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035.)
Counsel for the appellant assign as error the decree of the lower court, in that it awards
plaintiffs a share of the stock rather than a money judgment, and that in this action the court,
under the pleadings, was not authorized to have made an accounting between the parties. The
law, however, is well established that a party to a joint adventure holding the profits of the
venture may be held to account to his coadventurers for their share of the property
representing such profits in kind, and we see no error in the court giving respondents their
share of the stock.
In the case of Delmonico v. Roudebush, 5 Fed. 165, the plaintiff demanded that he be
declared the owner of a one-sixteenth interest in a certain mine. The court found that the
defendant held a one-fifth interest in the mine as the net compensation for negotiating the
purchase and sale of a certain option and gave the defendant a one-sixteenth interest of the
one-fifth interest found to represent the net profits of the transaction.
In the case of Reilly v. Freeman, 1 App. Div. 560, 37 N Y. Supp. 570, a certain proportion
of stock held by the defendant as net profits of a joint adventure was awarded to the plaintiff.
The profits of a joint adventure may consist, not alone of money, but of the unsold portion of
the property which was the subject of the venture, or of property received as compensation for
services rendered in connection with the venture. (23 Cyc. 460; Jones v. Davis, 48 N. J. Eq.
493, 21 Atl. 1035; Scott v. Clark, 1 Ohio St. 382; Delmonico v. Roudebush, 5 Fed. 165;
Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220.)
It is also well settled in law that one party to a joint adventure may sue the other at law for
the breach of the contract, or share of the profits or losses, or a contribution for advances
made in excess of his share, but the remedy at law does not preclude a suit in equity for an
accounting.
at law does not preclude a suit in equity for an accounting. In this state, under our code of
procedure, the district court in proper cases may administer both legal and equitable relief.
(23 Cyc. 453-461; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714; Reilly v. Freeman, 1 App.
Div. 560, 37 N. Y. Supp. 570; Petrie v. Torrent, 88 Mich. 43, 49 N. W. 1076; Spier v. Hyde,
92 App. Div. 467, 87 N. Y. Supp. 285; McElroy v. Swope, 47 Fed. 380; Van Tine v. Hilands,
131 Fed. 124; Edson v. Gates, 44 Mich. 253, 6 N. W. 645; King v. Barnes, 109 N. Y. 267, 16
N. E. 332; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Marston v. Gould, 69 N.
Y. 220; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926-929; Jones v. Davis, 48
N. J. Eq. 493, 21 Atl. 1035; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Humburg v. Lotz,
4 Cal. App. 438, 88 Pac. 510; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149;
Corbin v. Holmes, 154 Fed. 593, 83 C. C. A. 367; McMullen v. Hoffman, 75 Fed. 547.)
One party to a joint adventure may set off against the demand of another amounts
advanced by him toward the venture or payments made by him in behalf of the plaintiffs; and
in this respect the court was justified in so deducting the amount expended by the appellant in
behalf of Moore from the judgment given in favor of respondents. (23 Cyc. 461; Armstrong v.
Henderson, 99 Va. 234, 37 S. E. 839; Boqua v. Marshall, 88 Ark. 373, 114 S. W. 714.)
We do not believe there is any merit in the contention of the appellant that the court erred
in making an accounting of the amount expended, and in deducting the same from the amount
found to be due plaintiffs, as the law applicable to the rules of partnership applies to joint
adventures, and in suits between partners for amounts due them accountings are always
allowed in an action of this character. The rules and principles of the doctrine of partnership
apply generally to the relation of joint adventure. (Church v. Odell, 100 Minn. 98, 110 N. W.
346; O'Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Marston v. Gould, 69 N. Y.
220; Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091, Kirkwood v. Smith, 47 Misc.
47 Misc. Rep. 301, 95 N. Y. Supp. 926: Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E.
471; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y.
Supp. 13; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370; Scudder v. Budd, 52 N. J. Eq. 320,
26 Atl. 904; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; McMullen v. Hoffman, 75 Fed.
547; Van Tine v. Hilands, 131 Fed. 124; McElroy v. Swope, 47 Fed. 380; Boqua v. Marshall,
88 Ark. 373, 114 S. W. 714; Delmonico v. Roudebush, 5 Fed. 165; Spier v. Hyde, 92 App.
Div. 467, 87 N. Y. Supp. 285; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570.)
In conclusion, it is proper to observe, as the pleadings allege, and as the testimony
discloses and findings of the lower court set forth, that these three coadventurers jointly
entered into an agreement, as alleged in the complaint, and which the court has found was
entered into to consummate this deal, which resulted in so great an amount of good to the
Goldfield mining district, and which paid so handsomely in profits to the parties undertaking
the task of bringing the interests together and thereby avoiding the litigation, which
threatened to paralyze the district. The whole case, it appears to us, resolves itself into a pure
question of fact, as to whether or not the agreement pleaded in the complaint was entered into
by the respective parties, and the lower court having so found that such an agreement was
entered into, after a careful, thorough, and exhaustive examination of the evidence in this
case, we do not feel justified or warranted on this appeal in setting aside or disturbing the
judgment of the lower court based on its findings, heretofore referred to, where the material
testimony is so conflicting on the material issues.
Under the pleadings and the principles governing the doctrine of joint adventure, which we
have herein discussed, we believe the judgment is amply sustained by the pleadings,
evidence, and findings, and we are therefore of the opinion that the judgment of the lower
court must be affirmed.
It is so ordered.
____________
33 Nev. 198, 198 (1910) Hochschultz v. Potosi Zinc Company
[No. 1854]
JOHN HOCHSCHULTZ, Respondent, v. POTOSI ZINC
COMPANY (a Corporation), Appellant.
1. Appeal and ErrorWaiver of ErrorDenying Motion for Nonsuit.
Defendant by offering testimony, and not standing on its motion for nonsuit, waived the motion so
that it cannot rely, on appeal, on error in denying the motion.
2. TrialTaking Case from JuryFailure to Question Sufficiency of EvidenceEffect.
Where defendant waived its motion for a nonsuit by offering evidence, the only manner of testing the
sufficiency of plaintiff's evidence is by motion for new trial upon the ground of insufficiency.
3. New TrialDetermination of MotionMatters Considered.
On defendant's motion for new trial for insufficiency of the evidence, the evidence given by defendant
will be considered as well as that given for plaintiff.
4. Appeal and ErrorExceptionsInstructionsSufficiency.
Exceptions to instructions stating that defendant desired to note a special exception to each instruction
given to the jury at plaintiff's request, to each instruction given by the court of its own motion, and to
each instruction requested by defendant and refused were not sufficient under the statute to authorize a
review of error in giving and refusing the instructions.
5. Appeal and ErrorHarmless ErrorExclusion of Evidence.
In an action against defendant zinc mining company for injuries to one employed as a mucker by an
explosion, any error in excluding a question to plaintiff on cross-examination whether his uncle did not
state in the presence of an officer of defendant that plaintiff was a miner could not have prejudiced
defendant, where the evidence was conflicting whether defendant was informed by plaintiff, or by his
uncle with his knowledge, that plaintiff was a miner, and defendant's books showed that plaintiff was
given a miner's wages at the start, but his pay was reduced to that of a mucker six days thereafter, at
which wages he continued to work.
6. Master and ServantInjuriesActionsExclusion of Evidence.
In an action against defendant zinc mining company for injuries to one employed as a mucker by an
explosion, the court struck out an answer of the mine superintendent that plaintiff set off his shots about
half an hour before the rest of the men, in answer to a question as to what occurred with regard to
plaintiff's appointment as a miner on the sixth day of his employment. Held, that the court's ruling did not
prevent defendant from directly asking witness why plaintiff's employment was changed on the sixth day
after he was employed from that of miner to mucker; and hence was not erroneous as preventing it from
showing such fact.
7. Master and ServantInjuriesActionsAdmission of Evidence.
In an action for injuries to one employed as a mucker in a zinc mine by the explosion of a missed shot,
a question as to how many accidents occurred in the mine during a period of three years was properly
excluded, where defendant was permitted to show that missed shots frequently happened in the mine;
accidents from other causes being immaterial.
Appeal from the District Court of the Fourth Judicial District of the State of Nevada,
Lincoln County; Geo. S. Brown, Judge.
Action by John Hochschultz against the Potosi Zinc Company. From a judgment for
plaintiff, defendant appeals. Affirmed.
Leon French, for Appellant.
Frank A. Cattern and W. R. Thomas, for Respondent.
Per Curiam:
This is an action brought by respondent against appellant to recover damages for personal
injury in the sum of $50,000. The case was tried by a jury and a verdict returned in favor of
the plaintiff (respondent herein) in the sum of $9,500, and judgment entered accordingly.
From the judgment the defendant has appealed.
At the time the cause of action arose appellant was engaged in the operation of a mine in
that part of Lincoln County, now Clark County, known as the Potosi zinc mine. For a period
of some seven months prior to the accident which occasioned respondent's injuries, the
respondent had been in the employ of the appellant as a mucker, and was so employed
when the accident occurred. On the morning of the accident the night shift were alleged to
have left a missed hole in what is termed the short drift. Through the accidental
explosion of said missed hole, respondent received the injuries which formed the basis of the
action.
The record on appeal contains sixty assignments of error, twenty-seven of which relate
either to the giving of instructions to the jury or to the refusal or modification of requested
instructions.
of instructions to the jury or to the refusal or modification of requested instructions. With the
exception of the assignment that the court erred in overruling a motion for a nonsuit at the
conclusion of plaintiff's evidence, all the other assignments relate to rulings of the court upon
objections to the admissibility of testimony.
The appellant is not in position to take advantage of error, if any there was, in the order
denying the motion for a nonsuit. The defendant did not stand on the motion, but offered
testimony in defense of the action and thereby waived the motion for a nonsuit. (McCafferty
v. Flinn, 32 Nev. 269; City v. Lewis, 34 Wash. 413, 75 Pac. 982; Reno Brewing Co. v.
Packard, 31 Nev. 443; Power v. Stocking, 26 Mont. 478, 68 Pac. 857.)
If, as a matter of fact, the plaintiff had failed to make out a sufficient case for the jury by
not standing on the motion for a nonsuit, the only way the sufficiency of the evidence could
be tested would be by motion for a new trial upon the ground of such insufficiency, in which
event the point would be determined upon the entire evidencethat for the defendant as well
as that for the plaintiff. (Authorities, supra.) The sufficiency of the evidence as a whole is not
before us for consideration.
The following is the only exception taken to the instructions: At this time the defense
desires to note a special exception to each instruction given to the jury at the request of the
plaintiff, to each instruction given to the jury by the court of its own motion and without
request, and to each instruction requested by the defendant and refused. That an exception of
this character is not sufficient under the provisions of our statute to authorize a review of the
same has been too frequently decided to require extended comment. This may well be called
a blanket exception without any point or points whatever stated. The reasons for holding such
an exception as of no effect are fully covered by the opinion of this court in McGurn v.
McInnis, 24 Nev. 370, and other authorities therein cited. Hence further comment is
unncessary.
See, also, Paul v. Cragnaz, 25 Nev. 311, 47 L. R. A. 540; Schwartz v. Stock, 26 Nev.
150; Schlitz Co. v.
Schwartz v. Stock, 26 Nev. 150; Schlitz Co. v. Grimmon, 28 Nev. 252; Tonopah L. Co. v.
Riley, 30 Nev. 321.
Many of the assignments of error as to the rulings of the court on the admission or
exclusion of testimony are without any proper exception but in such instances it is manifest
from a casual reading that no prejudicial error occurred in such rulings. Excluding a number
of assignments where manifestly prejudicial error could not have occurred, we proceed to
consider those which have required some investigation to determine.
Plaintiff was asked upon cross-examination if his uncle did not state in the presence of an
officer of the defendant corporation that the plaintiff was a miner. Conceding that the
sustaining of the objection to this question was error, we are unable to see wherein it could
have prejudiced the defendant. Plaintiff testified that he had never said that he was a miner,
but, on the contrary, told the mine superintendent that he was not. A witness for the defendant
testified that the uncle of defendant in defendant's presence did so state to the superintendent
of the mine that the plaintiff was a miner, and that the plaintiff nodded his assent. Plaintiff
testified that, when he went to work at the mine, he told the superintendent that he was not a
miner, and the latter told him he would show him how to work. The books of the defendant
company, offered in evidence, showed that the plaintiff was given miner's wages to begin
with, but that after six days' work his employment was changed to that of mucker, with the
reduced pay of a mucker, and that he continued at that wages until the time of the accident.
In the testimony of W. E. Smith, a witness for the defendant and the superintendent in
charge of the mine, occurs the following question and answer: Q. What, if anything,
occurred with regard to John's appointment as a miner on the sixth day of his employment?
A. He set his shots off about half an hour before the time with the rest of the men inside of
the mine. Upon motion of counsel for the plaintiff this answer was stricken out. Counsel for
the defendant did not attempt to point out to the court the materiality of this answer, but it
is contended in the brief on appeal that it was for the purpose of showing why the
defendant was changed from the employment of a miner to that of a mucker.
to the court the materiality of this answer, but it is contended in the brief on appeal that it was
for the purpose of showing why the defendant was changed from the employment of a miner
to that of a mucker. The ruling of the court certainly did not prevent counsel for defendant
asking the witness the direct questionwhy the plaintiff was changed in his
employmentand showing such reasons as actuated the defendant in making the change.
Error is assigned in the ruling of the court sustaining plaintiff's objection to the question
asked the same witness: Q. State, if you know, how many accidents have occurred at the
Potosi mine during that period? The period covered was three years. We are unable to see
any error in this ruling. Defendant was permitted to show, and did show, that missed shots
occurred frequently in the mine. Accidents from some other cause are not of any importance
in this case.
We have not been able to find anything in the record that would justify a reversal of this
case. A number of points, which have been elaborately argued, were not presented in such
shape that they could be considered, for the reason before statedthat no proper exception
was raised in the lower court.
The judgment is affirmed.
____________
33 Nev. 203, 203 (1910) Western Engineering and Construction Co. v. Nevada Amusement
Co.
[No. 1762]
WESTERN ENGINEERING AND CONSTRUCTION COMPANY (a Corporation) and
TONOPAH LUMBER COMPANY (a Corporation), Plaintiffs, v. NEVADA
AMUSEMENT COMPANY (a Corporation), PATRICK WALSH, and WILLIAM
EASTON, Respondents; INTERSTATE LUMBER AND MILL COMPANY (a
Corporation) and NEVADA-CALIFORNIA POWER COMPANY (a Corporation),
Interveners and Appellants.
1. Exceptions, Bill ofSettlementStatutes.
The exceptions which may be contained in a bill of exceptions under Comp. Laws, 3860, authorizing the
taking of a bill of exceptions to the rulings on testimony or points of law, are governed by section 3285,
limiting the exceptions which may be included in a bill of exceptions to the objections as to matters of law
taken before verdict or the decision, and a bill of exceptions based on an order of a referee denying a
motion to set aside his conclusions of law, and the specifications of error relating thereto, made two or
three weeks after the filing of his decision and order directing judgment and in the absence of and without
service on or notice to the adverse party, cannot be considered.
2. Exceptions, Bill ofSettlementStatutes.
Under the statutes relating to the making of records on which the rulings of the trial court may be
reviewed, both parties to the litigation may participate in the making of the record, and the supreme court
ought not to rely on statements that the adverse party has not had an opportunity to amend or correct.
3. Appeal and ErrorRecordJudgment Roll.
The findings of fact and conclusions of law of a referee cannot be considered on appeal when they are not
included in any statement of appeal or motion for new trial or proper bill of exceptions, because they are
not a part of the judgment roll.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; Frank P. Langan, Judge.
Action by the Western Engineering and Construction Company and another against the
Nevada Amusement Company and others, in which the Interstate Lumber and Mill Company
and another intervened. From a judgment denying relief to the intervener named, it appeals.
Dismissed.
Co.
Thompson, Morehouse & Thompson, for Appellant.
D. S. Truman, for Respondents.
By the Court, Talbot, J.:
Pursuant to stipulation, this action was tried by a referee who made his findings of fact and
conclusions of law in favor of respondents and against the allowance of judgment on the lien
which had been filed and was sought to be enforced by the appellant the Interstate Lumber
and Mill Company as an intervener. These findings and directions for judgment were dated
December 24, 1907, above the name of the referee, and are also indorsed as Report of
referee, dated December 24, 1907, filed December 26, 1907, over the signature of the clerk.
The appellant was satisfied with the findings, but claimed that the referee made an erroneous
conclusion of law, and on December 21, 1907, served notice that it would move the referee
on the 6th day of January, 1908, to set aside and vacate the conclusions of law to which
objection was made. After argument by respective attorneys on the 8th day of January, this
motion was denied by the referee on the 10th day of January, 1908.
The appellant has brought to this court a document which is labeled Bill of Exceptions
of Interstate Lumber and Mill Company, intervener. It recites the stipulation for the
appointment of the referee, the trial, his report containing the findings of fact and conclusions
of law, the notice of the motion to set aside and vacate, and to have entered conclusions of
law in favor of the intervener on the ground that the conclusions of law were contrary to the
findings of fact and the hearing and denying of the motion as above stated. This so-called bill
of exceptions concluded with the statement: And now the said Interstate Lumber and Mill
Company assigns the said ruling of the said referee as error, and prays that the foregoing
statement and action of the said referee and the said exception of the said Interstate Lumber
and Mill Company be settled and allowed as correct and true, and as its bill of exceptions
to the ruling of said referee."
Co.
Lumber and Mill Company be settled and allowed as correct and true, and as its bill of
exceptions to the ruling of said referee. The paper is endorsed as filed by the clerk on
January 10th, and as settled and allowed as true and correct by the referee on January 14,
1908. The notice of appeal specifies that the appeal is taken from the judgment entered in the
district court on the 24th day of January, 1908, but no copy of this judgment appears in the
record.
Respondents ask that the purported bill of exceptions be stricken out and disregarded on
the grounds that it is not a document known to the law, that no copy of it was served, and that
no notice or opportunity was given respondents to object to it or to propose amendments. It is
said that, if the so-called bill of exceptions be disregarded, the findings and conclusions of
law cannot be considered because not contained in any statement on appeal or on motion for
new trial or upon a case appealed from an order made after final judgment. It is asserted, also,
that there is no statement nor assignment of errors on which appellant intends to rely upon his
appeal in the record, and consequently there is nothing before this court to review, and that
the action of the referee in attempting to settle and allow the bill of exceptions was too late, as
he had exhausted his authority upon the filing of his report.
Appellant may have intended to proceed under section 3860 of the Compiled Laws, which
provides: During the progress of a cause a party may take his bill of exceptions to the
admission or exclusion of testimony, or to the rulings of the judges on points of law, and it
shall not be necessary to embody in such bill anything more than sufficient facts to show the
point and pertinency of the exceptions taken. The presiding judge shall sign the same as the
truth of the case may be, and such bill shall then become a part of the record, and a party
against whom judgment is rendered may appeal from such judgment without any further
statement or motion; and on such appeal it shall only be necessary to bring to the supreme
court the transcript of the pleadings, the judgment, and the bill or bills of exception so
taken."
Co.
the supreme court the transcript of the pleadings, the judgment, and the bill or bills of
exception so taken. This section gives a short and easy method for appealing from rulings on
points of law made during the trial.
Evidently the exceptions which may be contained in a bill under that section are also
limited by section 3285, Comp. Laws (section 190, Practice Act), which provides: An
exception is an objection taken at the trial to a decision upon a matter of law, whether such
trial be by jury, court, or referees, and whether the decision be made during the formation of a
jury, or in the admission of evidence, or in the charge to a jury, or at any other time from the
calling of the action for trial to the rendering of the verdict or decision. But no exception shall
be regarded on a motion for a new trial, or on an appeal, unless the exception be material, and
affect the substantial rights of the parties. (Burns v. Rodefer, 15 Nev. 59.)
The appellant filed no exceptions to the findings or conclusions of law within five days
after the making of the findings or decision under section 3858. Instead, it was sought to have
the referee reverse his conclusions of law and decision after they had been filed and after the
hearing of this motion, and the only exception was taken to the refusal of the referee to grant
the motion and to vacate or change the findings or decision. Section 3860 does not provide
for such a rehearing before the referee, and section 3285 limits the exceptions which may be
taken and included in the bill to the objections relating to matters of law taken before the
rendering of verdict or the decision, and impliedly while the attorneys for both sides were
present. We have no statute allowing bill of exceptions to be made up after the trial and
verdict or decision and without notice to and in the absence of opposing counsel.
There was no attempt to proceed under section 194 (section 3289) of the practice act,
which designates that a new trial is a reexamination of an issue of fact in the same court after
a trial and decision by a jury, court or referees, and section 195 (section 3290) which directs
that the decision may be vacated and a new trial granted upon application where there is
error in law.
Co.
that the decision may be vacated and a new trial granted upon application where there is error
in law. If it be conceded that the referee could, after he had filed his decision, settle a bill or
statement of any proceedings had or exceptions taken before him prior to the filing of his
report, the record is still insufficient as a bill of exceptions, for it is based upon the order of
the referee denying the motion to set aside or reverse his conclusions of law and the objection
of specification or error relating to that order, both made about two or three weeks after the
filing of his decision and order directing judgment. Nor was it sufficient to make up a bill in
the absence of and without service upon or notice to the respondents.
We reaffirm the conclusion reached in State v. Central Pacific Railroad Company, 17
Nev. 268, that it is apparent for the various provisions relating to the making of records upon
which the rulings of the district court may be reviewed, that both parties to litigation may
participate in the making of the record, that we ought not to rely upon statements that the
opposite party has not had an opportunity of amending or correcting. Even if the record which
carries the pleadings, in the absence of a copy of the judgment (Kirman v. Johnson, 30 Nev.
146; Hart v. Spencer, 29 Nev. 286) could be considered a judgment roll, still the findings of
fact and conclusion of law on which appellant relies could not be considered as they are not a
part of the judgment roll, and cannot be reviewed when they were never included in any
statement on appeal or motion for a new trial or proper bill of exceptions. (Boyd v. Anderson,
18 Nev. 348; Poujade v. Ryan, 21 Nev. 449.)
The appeal is dismissed.
____________
33 Nev. 208, 208 (1910) Henningsen v. T. & G. R. R. Co.
[No. 1823]
R. M. HENNINGSEN, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD
COMPANY (a Corporation), Appellant.
1. CorporationsAgentsPowers.
One employed to build in another state a standard-gage track in place of a narrow-gage one, and operate
the road built, has authority to contract for the sale of narrow-gage ties removed from the track in the
construction of the standard gage; he being the head officer in the state, charged with the management of
the road.
2. CorporationsContracts by AgentsRatification.
A person was employed to build in a distant state a standard-gage track in place of a narrow-gage one,
and to operate the road. The president of the company assented to his statement that the narrow-gage ties
removed from the road ought to be sold. A form of contract for sale was drawn up by the attorney of the
company, and then turned over to the auditor. Deliveries of ties under the contract were made for about six
or seven months under the direction of the person in charge. The president was informed of the execution
of the contract soon after it was made. The company's auditor, chief clerk, and assistant treasurer had
knowledge of the contract, and received payments for ties delivered under it. Held, that the company
ratified the contract.
3. SalesContractsConstruction.
A contract for the sale of narrow-gage ties used by a road prior to standard-gaging the same, which
provides for the sale of all narrow-gage ties distributed at various places along the line, the agreement to
remain in force until the company has delivered all of such ties, covers all the narrow-gage ties which the
company removed in standard-gaging the track, or which it had on hand at the time the agreement was
made, and the company could not exempt any ties it needed to build platforms, etc.
4. SalesContractsPaymentWaiver.
Where a seller of property for delivery in installments made deliveries without rendering statements or
demanding payment at the time of delivery, and accepted payment later, he waived payment at the time of
making deliveries, though entitled thereto under the contract.
5. SalesContractsPaymentWaiver.
Where a seller of property for delivery in installments failed to collect the price at the time of delivery,
and accepted payments at varying times later, and continued to make deliveries, and did not present bills,
other than those for which payments were made and accepted, and thereby allowed the delay in making
payments to grow into a practice, until there was uncertainty as to the balance due, the seller could not
cancel the contract without presenting a statement of the amount claimed to be due,
or making some demand and giving the buyer an opportunity to pay.
the contract without presenting a statement of the amount claimed to be due, or making some demand and
giving the buyer an opportunity to pay.
6. SalesWaiverQuestion for Jury.
Where the facts on the issue of waiver of a provision in a contract of sale are admitted, or clearly
established, the issue is one of law.
7. SalesContractsRights of Buyer.
Where a buyer of ties removed from a track in the construction of a standard gage contracted to accept a
specified price for the ties which had been ordered by a third person, the buyer need not let the third person
have ties at that price without limit as to time or number, when no definite number or period to cover
further orders from the third person had been agreed on, but could charge a higher price, or refuse to make
subsequent deliveries.
8. Appeal and ErrorHarmless ErrorErroneous Instructions.
Where, under the admitted facts, the verdict rendered was justified, the error, if any, in a charge as to the
duty of the jury to distrust the evidence of any witness who had wilfully sworn falsely to any material
matter was not prejudicial to the defeated party.
Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye
County; J. P. O'Brien, Judge.
Action by R. M. Henningsen against the Tonopah and Goldfield Railroad Company. From
a judgment for plaintiff, defendant appeals. Affirmed. On petition for rehearing. Denied.
Statement Of Facts
This action was brought to recover damages for failure to deliver all the ties designated in
the following contract:
This agreement, made and entered into at Tonopah, Nevada, this 28th day of November,
1905, by and between the Tonopah and Goldfield Railroad Company, a Nevada corporation,
party of the first part, and R. M. Henningsen, of Goldfield, Nevada, party of the second part,
witnesseth: The first party, as successor of the Tonopah Railroad Company, a corporation
owning and operating a line of railroad from Mina, in Esmeralda County, to Tonopah, in Nye
County, in the State of Nevada, is the owner of a quantity of narrow-gage ties heretofore used
by said Tonopah Railroad Company in the construction, maintenance and operation of said
line of railroad prior to standard-gaging the same; and whereas, negotiations have been
pending between the first and second parties with a view to selling said ties by the first
party to the second party, upon certain terms and conditions:
tenance and operation of said line of railroad prior to standard-gaging the same; and whereas,
negotiations have been pending between the first and second parties with a view to selling
said ties by the first party to the second party, upon certain terms and conditions:
Now, therefore, in consideration of the sum of one dollar, lawful money of the United
States, paid to the first party by the second party, the receipt of which is hereby
acknowledged, and other good and valuable considerations, the parties hereto have promised,
covenanted, and agreed, and do hereby promise, covenant, and agree, as follows:
(1) The first party will sell to the second party, and the second party will purchase from
the first party, all and singular the stock of narrow-gage ties now owned by the first party, and
distributed at various places along the line of the first party's railroad in Nye and Esmeralda
Counties, State of Nevada, at the rate of eighteen (18) cents per tie.
(2) The first party will deliver said ties to the second party at the first party's depot in
Tonopah, Nye County, Nevada, or at its depot in Goldfield, Esmeralda County, Nevada, as
may be designated by the second party, said ties to be delivered in 5,000 lots or less, at any
and all times as may be demanded by the second party: Provided, however, that the second
party will deliver to A. Tripp, as general superintendent of said Tonopah and Goldfield
Railroad Company, ten days' written notice of demand for delivery of said lot of ties.
(3) Said ties shall be loaded upon the cars of the first party, and transferred to Tonopah or
Goldfield, at the expense of the first party. The second party shall unload said ties at the
expense of the second party, and will pay for said ties at the rate of 18 cents per tie upon
delivery thereof, the second party to unload said ties within twenty-four hours after their
arrival at the destination designated: Provided, however, that the agent of the first party shall
give to the second party the customary notice of arrival of freight.
This agreement shall remain in force and effect until the first party has delivered to the
second party all of the ties above mentioned.
In witness whereof, the first party has hereunto set its corporate name, by its duly
authorized agent, and the second party has affixed his signature, the day and year first above
written.
Tonopah and Goldfield Railroad Company,
By Alonzo Tripp, Gen. Supt.
R. M. Henningsen.
Under the direction of Tripp, this contract was drawn up in the offices of the attorneys for
the railroad company. He had previously received bids on the ties, and had been offered 12
and 15 cents each, and had later succeeded in persuading Henningsen to make a written offer
of 18 cents apiece, after he had bid 15 cents for them. Tripp testified that he was present at
the meeting in Philadelphia when the agreement was made under which he was employed and
sent to Tonopah to build and operate the railroad; that his reports were made to Brock, the
president of the railroad company, and all his correspondence with reference to the business
was with the Philadelphia office; that he informed Brock that the ties were being stolen and
burned, and that it was best to get rid of them some way; that he thought it was determined in
his conversation with Brock that they ought to get 20 cents a tie; that in his talk with
Henningsen, about the time the contract was made with him, it was said that it would take
about two years to work off all the ties and complete the contract; that he wrote Brock he had
made such a contract, soon after it was executed, and gave him the price of the ties; that the
contract was shown to Brock when he came to Tonopah the winter after it had been signed;
that Brock stated that no time limit was given within which the ties were to be delivered; that
no objection to the sale of the ties was made to him by any director or officer of the company;
that with instructions the contract was turned over to the auditor of the railroad company, and
various sums of money paid on account of the purchase price of ties were deposited
through the clerks; and that when bills collectible were made he signed them, and they
then passed under the control of the auditor.
the purchase price of ties were deposited through the clerks; and that when bills collectible
were made he signed them, and they then passed under the control of the auditor.
On behalf of Henningsen, who was the plaintiff in the action, and who is the respondent in
this court, testimony was introduced that directly subsequent to the execution of the
agreement he sought to make sales of these ties, and with this purpose in view he applied to
the superintendent of the Tonopah Mining Company, which owns the appellant railroad, or a
controlling interest therein. The mining company had previously telephoned to the railroad
company for ties, but had not sent any written requisition. Henningsen testified that thereafter
he went to Tripp, the general superintendent of the railroad company, who told him there had
been a little misunderstanding, that the Tonopah Mining Company had an order in previous to
the signing of the contract, and that Henningsen and Tripp finally agreed that the ties that
were taken to the mining company were to be delivered, and that Henningsen was to sell them
to the mining company at 25 cents apiece, and that the railroad company, the appellant,
settled at that price with him for these ties. At different times, for about six months more, the
railroad company made various deliveries to Henningsen under the contract of ties in lots of
one or more carloads at Tonopah and Goldfield, and he made various payments after
deliveries.
Bills collectible for ties delivered under the contract were made up against him, signed by
Tripp as general superintendent of the railroad, by the auditor, and by the chief clerk, and
receipted by the assistant treasurer. These bills were on the company's printed forms, which
contained the direction on the earlier ones that remittance be made to Alonzo Tripp, general
superintendent, Tonopah, Nevada, and on the latter ones to W. L. Cardin, assistant treasurer,
at that place. One of these bills, bearing the signatures of the chief clerk and the auditor,
approved by Alonzo Tripp as general superintendent, and receipted by the assistant treasurer,
bears the words: "For ties delivered at Tonopah as per contract, 2,22S ties at 1S cents,
$401.04."
For ties delivered at Tonopah as per contract, 2,228 ties at 18 cents, $401.04. The charge on
other bills for ties was at the contract price of 18 cents. The amounts on several of the bills
are indorsed as having been credited to broad-gaging. Some of the payments made by
Henningsen did not appear on these bills, nor on the company's books.
On June 1, 1906, J. F. Hedden succeeded Tripp as general superintendent of the railroad
company and made further deliveries of ties under the contract as originally executed by
Tripp. A voucher for four carloads of ties, dated as late as June 13, 1906, was approved by
Hedden, and also signed by the auditor and receipted by the assistant treasurer of the
company.
On June 28, 1906, the following notice was served: To Tonopah and Goldfield R. R. Co.:
You are hereby notified that there are now, at the date hereof, by actual verified count, one
hundred one thousand four hundred (101,400) narrow-gage railroad ties distributed along the
railroad right of way between Tonopah and Mina, all of which are covered by and included in
that certain contract of sale and purchase made between you and the undersigned, of date the
28th day of November, 1905. Under and by virtue of the terms of said contract all of these
ties are the property of the undersigned, and you are hereby expressly notified that you are
required to deliver the same to the undersigned on demand in compliance with the terms of
said contract. You are hereby further notified that since the execution of said contract you
have, without notifying the undersigned, and without his consent, appropriated to your own
use for construction purposes along the railroad right of way, five thousand eight hundred
eighty-two (5,882); and for the Midway Mill, Tonopah, one thousand and twenty-five (1,025)
narrow-gage ties, a total of six thousand nine hundred seven ties, all the property, on demand,
of the undersigned, and for which bill is hereby rendered hereto attached. You are also further
notified that, under the calculation made between you and the undersigned at the time of the
execution of said contract, viz.,
cution of said contract, viz., November 28, 1905, as to the number of ties passed thereby,
there are missing and unaccounted for twenty thousand ties, which the undersigned will
demand in due course of the fulfillment of such contract. This will also serve as further
notice, in addition to that heretofore served upon you, that for all narrow-gage ties obtained or
received by or through you from and after June 21, 1906, you will be charged the net rate and
price of 50 cents per tie. Dated Tonopah, Nevada, June 28, 1906. R. M. Henningsen.
Attached to this notice was a bill charging for ties and giving credit for ties, with a balance
of $46.27, which Henningsen claimed was due him from the railroad company.
On July 10, 1906, Henningsen made written demand on the railroad company for the
delivery of two cars of ties at Goldfield as soon as possible. On July 16, 1906, Hedden sent
the following letter to Henningsen: Mr. R. M. Henningsen, Tonopah, NevadaDear Sir:
Referring to your request to have two cars of narrow-gage ties shipped to Goldfield:
Inasmuch as you have not yet paid for the last lot of narrow-gage ties shipped to you at
Goldfield, as well as for a previous lot, amounting to in the neighborhood of $900, we
consider that you have violated the agreement by reason of this nonpayment, as it specifically
states that these ties are to be paid for upon their arrival at destination. This violation we
consider abrogates the agreement, and we do not feel that you have any claims upon us by
reason of the agreement. Yours truly, J. F. Hedden, General Superintendent.
At this time there had been no refusal or failure by Henningsen to pay for any ties for
which bills or statements had been rendered, and all bills collectible which had been made out
by the railroad company had been paid, as shown by the books of the company, and he asserts
that he was not given credit for checks paid by him from March 1 to June 1, 1906,
aggregating about $1,400. He testifies that at the time this letter was written he was not
indebted to the railroad company for any ties delivered.
ties delivered. He claims credit for payments which had been made to station or ticket agents
for the railroad company and not credited to him, and for 7 cents each, the difference between
18 cents which he was paying and 25 cents which he states the railroad company was to pay
for ties delivered to the mining company. He claims the excess above 18 cents up to 50 cents
on the ties sold or delivered to other parties by the railroad company. Part of the tiesit is
claimed about one-half or one-thirdwere suitable for mining timbers, and were sold as high
as 50 cents apiece, and others were sawed upon and sold for wood at Tonopah and Goldfield,
in which places respondent placed woodyards and machinery for sawing. On his part it is
calculated that thirty ties made a cord of 12-inch wood, and thirty-six ties a cord of 14-inch
wood; that the average cost per cord for sawing was 62 1/2 cents and for hauling $1.62 1/2;
that the profit on ties sold for mining timbers was 32 cents, and on ties for wood when thirty
were used to the cord 21.2 cents, and when thirty-six were used to the cord 14.6 cents.
Further damage is claimed on woodyard plants, which were established for sawing and
selling the ties.
Of the 36,337 ties delivered, it is claimed by Henningsen that 9,245 were delivered to the
Tonopah Mining Company and 1,025 to the Midway Mill, owned by the mining company, or
a total of 10,270 to the Tonopah Mining Company. After the termination of the transactions
with Henningsen there still remained undelivered to him by the railroad company 108,305
ties; but of these 16,343 had been put into platforms, buildings, and bunkers, or left in
sidings, still leaving 92,000. Among the estimates of damage made by respondent's counsel is
one in which is allowed appellant's claim that one-quarter of the narrow-gage ties still remain
in the main track, and one-quarter of 92,000, or 23,000 are deducted. In another estimate,
made with reference to the testimony of the witness White, 10 per cent of 92,000, or 9,200,
ties are deducted as remaining in the main track, leaving 82,000, to which was added 8,500
for ties used by the railroad company in platforms, buildings, and bunkers after the
contract was executed.
company in platforms, buildings, and bunkers after the contract was executed. The witness
stated: I think about 10 per cent of the ties were used in the railroad roadbed beneath the
rails. * * * Some of these ties which were in the roadbed were used on the switches and
sidetracks. There were very few of them in the main roadbed.
From these and other answers of the witness it appears that he meant to testify that about
10 per cent of the narrow-gage ties remained in the roadbed, but that the most of these were
in the sidetracks.
There was a verdict in favor of the plaintiff for $20,588, and the appeal is taken from the
judgment and from an order overruling the motion for a new trial.
Campbell, Metson & Brown, for Appellant:
Henningsen breached his contract by failing to make payments due; he was in debt to the
railroad company on the day the company sent him the notice of July 16th.
Mindful of the rule of appellate courts regarding the conflict of evidence, we will confine
our argument to the undisputed evidence in the record.
The record shows the number of ties delivered direct to Henningsen at Tonopah, and also
the number delivered to him at Goldfield. It also shows the number of ties sold direct by the
railroad company to the Tonopah Mining Company and other parties; and likewise the
number which the railroad company used for its own purposes, that is, those appropriated to
its permanent use and those appropriated to its temporary use.
The record shows the total number of payments claimed to have been made by Henningsen
to the railroad company, andmost conclusive of allit shows a written statement prepared
by Henningsen himself on June 28, 1906at a date almost contemporary with the date of the
last transaction between the two partiesshowing the debit and credit relations between the
parties at that time, according to Henningsen's own figures and records.
Therefore, by way of recapitulation, the record furnishes complete and unconflicting
evidence on these points:
1. The total debt due from Henningsen to the railroad company for ties delivered direct to
him under the agreement.
2. The total number of payments claimed to have been made by Henningsen to the railroad
company, all of said payments having been made by check.
3. The total amount of credits or offsets claimed by Henningsen to have accrued in his
favor and against the railroad company, and arising from sales made by the railroad company
to third parties, or arising from the appropriation of ties to the railroad company's own use.
Manifestly, these three groups of figures embrace all the elements of our controversy under
this particular head. They present a simple problem in arithmetic. If we know the aggregate
debt, and also the aggregate offsets, then we know that the difference between the two items
will represent the sum necessary to be paid by check. (All payments made by Henningsen to
the company were by check.)
Before proceeding with the analysis of the evidence, it may be pertinent to observe that at
the trial, and at the argument of the motion for a new trial, plaintiff's counsel relied solely
upon the figures in the record (as they were bound to do, we think) and contended that the
figures were sufficient to prove that Henningsen was not in debt to the railroad company.
It is an elementary principle of law that if anything remains to be done at the time a
contract for sale is made, either to determine the identity of the thing sold, the quantity, the
price, or delivery, until such thing is done the contract is executory, and the title does not pass
to the purchasers. (Messer v. Woodman, 22 N. H. 172, 53 Am. Dec. 241; Herman v.
Whitescarvers, 89 Ky. 633, 13 S. W. 103; Darden v. Loveless, 52 Ala. 289; Moffat v. Green,
9 Ind. 198; Gibbs v. Benjamin, 45 Vt. 124; Hudson v. Weit, 29 Ala. 294; Screws v. Roach, 22
Ala. 675; Cost v. Riley, 62 Conn.
Cost v. Riley, 62 Conn. 57, 24 Atl. 519; Keeney v. Dowden, 46 Ga. 401; Stanley v. Robinson,
14 Ill. App. 480; Dixon v. Duke, 85 Ind. 434; McClung v. Kelly, 21 Iowa, 508.)
In Comaita v. Kyle, 19 Nev. 38, where there was a delivery of a bill of sale to a quantity of
coal accompanied by no other acts or delivery or possession, it was held that the sale was
void as to attaching creditors.
In this case what would have been the situation if the property had been destroyed by fire?
Would Henningsen have paid for the ties, or can it be said that he would have assumed any
responsibility for them? Did Henningsen own the stock of ties? Could he have sold them to a
third party? Would such third party acquire title under such sale? If not, then Henningsen was
not entitled to claim credit for any ties which were sold or used by the railroad company; and
he has in no way attempted to prove payment for the amount of ties delivered to him except
by offsets of this kind.
Obviously, this was not, either in the letter of the contract or the contemplation of the
parties, a sale by which the title to the ties passed. The first party will sell to the second
party, and the second party will purchase is the language of the contract. Our contact was
simply an agreement to deliverto perform on demand.
If our contention on this latter proposition be well founded, then Henningsen was not
entitled to credit fornor was he in any manner concerned witheither the ties used by the
railroad company for its own use or the ties sold by the railroad company to the mining
companies; and no claim against the railroad, or right of action, could arise in favor of
Henningsen so long as the railroad continued to deliver ties on demand to Henningsen, and
provided (in the event of the complete performance of the entire contract) that the railroad
would procure and deliver to Henningsen a quantity of narrow-gage ties in lieu of the ties
theretofore used by the railroad company for its own purposes or sold by the railroad
company to the mining companies.
road company for its own purposes or sold by the railroad company to the mining companies.
Before leaving this particular item, let us consider the point from another angle of
viewthe language of the agreement of November 28, 1905: Will sell * * * will purchase *
* * the stock of narrow-gage ties * * * distributed * * * along the line.
What is the stock? Courts frequently have been called upon to interpret its meaning in
contracts for the sale of merchandise, and other agreements of a miscellaneous character.
Does it include goods or chattels which have been segregated from a general stock and
appropriated to a specific use? If a hardware merchant segregates a quantity of wagon
tongues, wheel rims and brake fixtures from his stock, and uses them for the necessary
equipment of his delivery wagons or freighting outfits, would it be held that said items were
embraced in any written transaction which was couched in the same language as the
Tripp-Henningsen agreement?
Stock, in mercantile law, is defined to be goods or chattels which a tradesman holds for
sale or traffic. (Commonwealth v. Danville H. & W. R. Co., 2 Pears. 400.)
Stock does not include a wagon, with patent couplings attached, used by the owner in
carrying on his business of selling patent couplings. (Gibson v. Gibbs, 75 Mass. 62.)
Stock: Generally comprehends articles accumulated in a business or calling for use and
disposal in its regular prosecution. (Jewell v. Trustees, 84 N. W. 973.)
Stock: Goods and merchandise in trade. (Whiting v. Root, 3 N. W. 134.)
Stock: Goods kept by the merchant for sale in the course of business. (Harness v.
Williams, 1 South. 756.)
Reverting to the language of the agreementties distributed along the linecan it be
said that ties in the bunkers, platforms or buildings are distributed?
Again, the ties affected by the agreement are described as "ties heretofore used."
as ties heretofore used. Would the wagon tongues, wheel rims or brake apparatus,
mentioned in the above illustration, or the ties now used in the bunkers, platforms or
buildings, come under the description of articles heretofore used?
Take the four corners of the agreement and read it according to the language it contains,
and according to the rules of interpretation, and we think it sustains our position. One of the
first canons of construction is that it shall be reasonable. Would it not be manifestly
unreasonable to hold that the terms of this agreement included the ties which the company
was using and which it needed in its own business and which already had been appropriated
to such use?
We think our views on this proposition as hereinabove set forth, are well founded; but if
this court entertains a contrary view, then we still contend that Henningsen is precluded from
claiming a credit for these particular bunker ties, because his man Alling, who made the count
of ties, testified that all of these ties, used in the bunkers, could have been brought into
Tonopah and Goldfield by the railroad company and delivered to Henningsen any time on his
demand; and consequently he was no more entitled to claim a credit of 7 cents per tie for the
ties standing in the bunkers than he would be to claim a credit for any of the balance of the
stock of narrow-gage ties stacked along the right of way.
Eliminating this one item alone5882 ties at 7c equal $411.74Henningsen stands
self-confessed upon the record as having defaulted his payments for the June deliveries at
Goldfield.
Henningsen claims to have made an agreement with Alonzo Tripp to sell ties to the
railroad company at 25 cents per tie; that it was verbal; that it relieved him, Henningsen,
according to his interpretation, from the strict requirements of the stipulation to pay on
delivery, contained in the original agreement of November 28, 1905, and that under its
operationyielding him a credit of 7 cents for each tie sold by the railroad company to the
mining companies or appropriated by the railroad company to its own usehe canceled
many hundred of dollars due from himself to the railroad company under the written
agreement above mentioned.
pany to the mining companies or appropriated by the railroad company to its own usehe
canceled many hundreds of dollars due from himself to the railroad company under the
written agreement above mentioned.
The statute required the alleged 25-cent agreement to be in writing.
The Nevada act, under which defendant is incorporated (Comp. Laws, 971, et seq.),
probably is a transcript of the California act of May 20, 1861 (Laws of 1861 (Cal.), p. 609).
The predicament in which the plaintiff and defendant found themselves in the trial of this
case, one side affirming the existence of an agreement to sell ties to the railroad company at
25 cents, and the other side flatly disaffirming the existence of any such agreement, with all
the consequent embarrassment which that dispute precipitated upon the trial court, fully
vindicates the wisdom of our legislature when, in said act entitled An act to provide for the
incorporation of railroad companies and the management of the affairs thereof, they
provided that no contract shall be binding upon the company unless made in writing.
(Comp. Laws, 981.)
Under this statutory rule, it was error to admit oral proof of the alleged 25-cent agreement.
This testimony was admitted without objection on the part of defendant. Where no objection
is made, it is ordinarily too late to raise the point on motion for new trial or appeal.
But a new trial may be granted where the incompetent evidence was prejudicial. (14
Ency. Pl. & Pr. 772.)
A new trial may be granted where the incompetent evidence admitted without objection
might have turned the scale. (Pulver v. Rochester German Ins. Co., 35 Ill. App. 24, cited in
14 Ency. Pl. & Pr. 772.)
A reviewing court will reverse a case when the verdict rests upon the testimony of the
plaintiff which is positively contradicted by the defendant, who is corroborated by
disinterested witnesses. (14 Ency. Pl. & Pr. 775.)
A new trial may be granted where a verdict rests in the uncorroborated testimony of the
plaintiff, which is squarely contradicted by one witness, and there is corroborative testimony
of another witness to a state of facts which if true would operate as an absolute bar to the
action. (Illinois Cen. R. R. v. Alexander, 46 Ill. App. 505; 14 Ency. Pl. & Pr. 775.)
It is immaterial by what process the erroneous result was reached, thus a new trial will be
granted where a jury relied upon a claim which had been completely disproved (the 25-cent
agreement) or gave credence to testimony which was false or improper. (Henningsen: I paid
all I owed. I paid the railroad eight to ten thousand dollars.) He never owed more than
$6,540.66.
The California act, supra, was interpreted by the California Supreme Court, in Pixley v. W.
P. R. R. Co., 33 Cal. 183, and Foulke v. San Diego R. R. Co., 51 Cal. 369.
Both cases hold that if the railroad received any benefit under the agreement we may be
bound by it, even though it be verbal.
But the railroad company received no benefit under the alleged agreement. It received no
money from Henningsen for these ties.
The alleged 25-cent agreement was ultra vires.
The defendant had no corporate power, either through its board of directors or any other
instrumentality, to make and enter into the alleged agreement. Where, in the constituent act, is
to be found the authority which permits the railroad company to go into the market or any
place else and purchase ties for the sole purpose of vending them to third parties?
In Alexander v. Caldwell, 83 N. Y. 480, the plaintiffs claimed to be creditors of the New
York Mutual Coal Co. Defendants denied the claim. The question on appeal was the
sufficiency of proof of the plaintiff's claim. The coal company was formed for the purpose of
working coal mines and the mining for coal in the mines situated on the DeLong tract, so
called, in the township of Blythe, Schuylkill County, State of Pennsylvania, which shall be
held by said company under leases, and the transporting to market and the vending of
said coal." On June 30, 1S66, Ball, the treasurer of the coal company, addressed a letter
under the heading "New York Mutual Coal Co.," to the plaintiffs, who were retail coal
dealers in the city of New York, in which he said: "We wish to make an arrangement with
you to furnish us coal at as low price as possible, delivered to any part of the city we may
direct, you collecting the bills in the name of our company, and we paying you the
difference due each month; also to deliver all coal from our mine as it arrives, and any
balance left over to store in your yard, or in other words, your firm to act as delivery
agent for our company."
be held by said company under leases, and the transporting to market and the vending of said
coal. On June 30, 1866, Ball, the treasurer of the coal company, addressed a letter under the
heading New York Mutual Coal Co., to the plaintiffs, who were retail coal dealers in the
city of New York, in which he said: We wish to make an arrangement with you to furnish us
coal at as low price as possible, delivered to any part of the city we may direct, you collecting
the bills in the name of our company, and we paying you the difference due each month; also
to deliver all coal from our mine as it arrives, and any balance left over to store in your yard,
or in other words, your firm to act as delivery agent for our company. This letter the
plaintiffs answered on the 2d day of July, assenting, substantially, to the proposed
arrangements. Under this arrangement, upon orders issued by Neal and by Ball from the
office of the company, the plaintiffs, between July 4 and August 10, 1866, delivered coal to
divers persons to the value of nearly $1,000, and this action was brought to recover the
balance due them for this coal.
It did not appear that these transactions were known to any of the directors, or that they
appeared on the company's books. The court, by Justice Earl, said: It was no part of the
company's business to purchase coal in the market and sell it to its stockholders or others.
We have not here the question which would have to be considered if these transactions,
outside of the legitimate business of the corporation, had been actually authorized by the
board of directors. But we have the question whether the company was bound for this debt
thus created by its secretary and treasurer assuming to act for it. We are of the opinion that it
was not.
Every one knows that corporations are artificial creations existing by virtue of law, and
organized for purposes defined in their charters; and he who deals with one of them is
chargeable with notice of the purpose for which it was formed; and when he deals with agents
or officers of one of them, he is bound to know their powers and the extent of their
authority.
know their powers and the extent of their authority. Corporations, like natural persons, are
bound only by the acts and contracts of their agents done and made within the scope of their
authority. Here the plaintiffs were chargeable with knowledge that this corporation was
organized for the purpose of mining coal and bringing it to New York for its stockholders or
for sale. They were chargeable with notice that it was no part of the legitimate business of the
corporation to go into market and buy coal for sale again to others. And it was not, upon any
facts here appearing, within the scope of any apparent authority conferred upon the secretary
and treasurer to purchase this coal of the plaintiffs. It can never be presumed that an agent of
a corporation had authority to transact business which the corporation itself was not, by its
charter, authorized to engage in.
We think the two cases sufficiently analogous to warrant the contention that the New York
case is a fair precedent for the case at bar.
In any event, the 25-cent agreement could not bind defendant unless ratified.
In support of this proposition, we rely upon the authorities cited under the discussion of
the ratification of the written agreement of November 28, 1905, in a later part of this brief.
Where is there any proof in this record to show that the defendant company's board of
directors had knowledge of Tripp's alleged agreement to purchase ties at 25 cents? The
railroad company had absolutely no written record of any such agreement; Tripp did not
report any such agreement to the board of directors nor to any officer or director of the
company; Tripp swears that no such agreement existed. There is nothing in the vouchers to
show the existence of such an agreement, except as they are interpreted through Henningsen's
ipse dixit. In short, there is no evidence of such an agreement, nor any scintilla of such
evidence from one end of the record to the other, except Henningsen's word of mouth, and it
is not reported that Henningsen called it to the knowledge of the board of directors.
edge of the board of directors. (Alexander v. Caldwell, 83 N. Y. 485; Lonkey v. Succor M.
Co., 10 Nev. 17.)
The responsibility of the principal does not extend to collateral contracts made by the
agent in excess of his actual or ostensible authority and not known to the principal. (Baldwin
v. Burrows, 47 N. Y. 179, 215; Wheeler v. N. W. Sleigh Co., 39 Fed. 347; Smith v. Tracy, 36
N. Y. 78.)
Under the decisions of the courts, and more particularly under the rulings of this
courtfrom Yellow Jacket v. Stevenson down to Edwards v. Carson Water Co.,
postTripp's 25-cent agreement, which was unauthorized in the first instance and never
ratified by the board of directors, cannot operate as a binding agreement against the company.
The stipulation requiring payment on delivery was not relaxed.
In the case of Lonkey v. Succor M. Co., 10 Nev. 17, a contracting party agreed to sink a
shaft for said company, and to pay for all the timbering. The company's superintendent, by
verbal agreement, attempted to relax the payment clause. It was held the oral agreement was
not binding on the company.
In the case at bar, who relieved Henningsen from the written stipulation to pay on
demand? Not Alonzo Tripp. It would not be binding if he did. If it was attempted to be done
by any person in the Tonopah office of the railroad company it was by Herbert Tripp (who
was not even shown to be an employee of the railroad, but whom the record shows to have
been secretary to Alonzo Tripp), who accepted some payments from Henningsen subsequent
to the time when the same were due.
The trial court's instruction to the jury was correct under this head. Few principles are
better settled by an unconflicting current of authority than that a failure on the part of one
contracting party to pay at the time stipulated, in a contract requiring the payment of moneys
at a stipulated time or in a stipulated manner, gives the other party the right to terminate the
contract, and the trial court instructed the jury in substance that if any sum remained due
from the plaintiff to the defendant for ties delivered, the plaintiff was not entitled to
recover.
the contract, and the trial court instructed the jury in substance that if any sum remained due
from the plaintiff to the defendant for ties delivered, the plaintiff was not entitled to recover.
(Bennett v. Taylor, 84 Pac. 533; National Machine & T. Co. v. Standard Shoe Co., 63 N. E.
900; Rugg v. Gigner, 26 Atl. 502; Mayor of Baltimore v. Schaub Bros., 54 Atl. 109;
Cresswell Ranch and Cattle Co. v. Martindale, 63 Fed. 89; Hull Coal Co. v. Empire C. & C.
Co., 113 Fed. 261; Minaker v. Cal. Canneries Co., 138 Cal. 239; Soltan v. Goodyear
Vulcantile Co., 33 N. Y. Supp. 81; Wood, Curtis & Co. v. Scurich, 90 Pac. 51; Savannah Ice
Del. Co. v. Am. Refrigerating Co., 35 S. E. 280; Barnes v. Denslow, 9 N. Y. Supp. 53;
Winchel v. Stott, 21 N. E. 1065; Kokomo Strawboard Co. v. Inman, 31 N. E. 249; Johnson
Forge Co. v. Leonard, 51 Atl. 305; Withers v. Reynolds, 2 B. & Ad. 882; Beauchamp v.
Archep, 58 Cal. 431; Meeker v. Johnson, 28 Pac. 542, 32 Pac. 772.)
This court cannot hold that there were any settlements of cross-demands made by
Henningsen, as his evidence when boiled down to the last analysis shows that on one
occasion, and on one occasion only, he presented a statement to the railroad company, and the
uncontradicted evidence shows that no settlement was had thereon, and that the same was
disputed by Tripp, who refused to settle or pay the alleged account.
The jury was also instructed in substance that the claims of plaintiff for ties appropriated
by the defendant would not constitute an offset or cross-demand in favor of the plaintiff,
unless it was expressly agreed between the parties that such cross-demand was to be credited
to the plaintiff and treated as payment on the contract.
A cross-demand, no matter how clearly proved, does not constitute a payment. It can only
amount to a payment by an agreement of the parties. (McCurdy v. Middleton, 82 Ala. 131, 2
South. 721; Hill v. Austin, 19 Ark. 230; City Savings Bank v. Stevens, 15 N. Y. Supp. 139;
Kennedy v. Davidson, 23 S. E. 291; Ulsch v. Muller, 9 N. E. 736.)
A payment is the extinguishment of a debt, and is not in the nature of a set-off which may
be used or admitted as a defense at the pleasure of the defendant. (Broughton v. McIntosh, 1
Ala. 103.)
In the case of Strong v. McConnell, 10 Vt. 231, the defendant held a note against plaintiff,
and contracted with plaintiff for the delivery of 10,000 feet of good hemlock boards. Plaintiff
delivered to him certain boards, planks and sled runners from time to time, and defendant
directed plaintiff to keep an account of the quantity with a view of future adjustment.
Defendant also kept an account of the boards by crediting them on his books. Held, that the
lumber delivered did not constitute a payment of the note. The parties contemplated a future
action before it could be applied as payment. Mutual debts do not per se extinguish each
other. To effect such extinguishment, there must be some act of the parties, while debtor and
creditor, by which they determine that one shall go in satisfaction of the other, which act must
be of binding efficiency so as to accompany the claims into whosesoever hands they may
pass. (Past v. Carmalt, 37 Am. Dec. 484.)
Mutual indebtedness does not work an extinguishment of the respective debts without the
application of them to each other by the concurrent acts of the parties. (Seitzinger v. Alspack,
4 Atl. 203.)
The agreement of November 28, 1905, is not binding on defendant for the reasons that (I)
Alonzo Tripp had no authority to execute said agreement and (II) it was never ratified by
defendant.
I. All of the authorities lay down the elementary principle that persons dealing with
officers and agents of corporations are bound to take notice of the fact that they act under
charters and general statutes, which more or less define the extent of their power, and that
such persons must acquaint themselves with the extent of that power.
The constituent act of the Tonopah and Goldfield Railroad Company, viz., the act of
March 22, 1865 (Comp.
Laws, 971, et seq.), lodges in the board of directors the power to execute agreements like the
one under consideration.
Section 9 of the act provides: The directors shall, for and on behalf of such company,
manage the affairs thereof, make and execute contracts of whatsoever nature and kind, and
exercise generally the corporate powers of the company.
The corporate powers are specified in section 17.
Sec. 17. Every railroad corporation shall have power:
EighthTo receive by purchase, donation, or otherwise, any lands, or other property, of
any description, and to hold and convey the same in any manner the directors may think
proper, the same as natural persons might or could do, that may be necessary for the
construction and maintenance of its road, or for the erection of depots, turnouts, workshops,
warehouses, or for any other purpose necessary for the convenience of such companies, in
order to transact business for such railroad companies.
In the first instance, then, the power to execute an agreement for the sale of many thousand
dollars' worth of the defendant's property was vested in the directors, as a board. In order to
make the Tripp contract of November 28th binding on the corporation, the plaintiff was
required to show that the board, by suitable action, had delegated the power to Tripp, or else
that the board had ratified the contract.
The first of these alternatives is negatived by the record. Tripp stated positively that he had
no authority from the board. This was not contradicted, nor did the plaintiff offer any
evidence of a direct delegation of authority.
II. In order to maintain his case against the defendant, plaintiff was required to show a
corporate ratification of the agreement.
Ratification must, of course, be had by the body having power to contract in the premises.
This was the board.
President Brock could not ratify the contract, because the president, as such, had no power in
the first instance to make the contract.
At the trial, we objected to the admission of the contract, and upon the conclusion of the
plaintiff's case we moved to strike it from the record, for the reasons above stated.
We now proceed to marshal the authorities in support of our position:
No doctrine is better settled, both on principle and authority, than thisthat the
ratification of an act of an agent, previously unauthorized, must, in order to bind the principal,
be with a full knowledge of all the material facts. (Story, J., in Owings v. Hull, 9 Pet. 608,
629.)
The party relying upon an implied ratification of an unauthorized act has the burden of
showing affirmatively that the principal had full knowledge of all facts relating to the
transaction in question. It is not for the other party to show ignorance of such facts. (Nixon v.
Palmer, 8 N. Y. 398; Smith v. Tracy, 36 N. Y. 79; French v. O'Brien, 52 How. Pr. 394; Mapp
v. Phillips, 32 Ga. 72; Clark v. Lyon Co., 7 Nev. 75; Hillyer v. Overman, 6 Nev. 51; Rankin
v. N. E. M. Co., 4 Nev. 78.)
The rule was enunciated by the California Supreme Court in the early case of Billings v.
Morrow, 7 Cal. 171: It is a well-settled rule that a principal who ratifies the acts of his agent
must be made acquainted with the character of those acts, and unless all the circumstances are
made known to him, the ratification is void.
In Davidson v. Dallas, 8 Cal. 244-5, the court adopts the language above, and adds: The
acts of an agent beyond his authority, are as the acts of a stranger; and before the principal can
be bound, he must know what has been done, so that he may advisedly exercise his own
judgment upon the circumstances in the same way as if he had originally made the contract
himself. There is no proof of any ratification by any act of Dallas done after a full knowledge
of the circumstances.
Murray v. C. N. Nelson Lumber Co., 9 N. E. (Mass.)
634: Plaintiff brought two actions on a contract to pay a salary of $10,000 per annum. The
contract was executed on behalf of defendant, by the C. N. Nelson Lumber Co., by Chas. N.
Nelson, Pres. Plaintiff recovered. Exceptions sustained in supreme court. Morton, C. J., said:
In each of these cases, the first count of the plaintiff's declaration is upon a written contract
executed on behalf of the defendant by Charles N. Nelson, its president. It is conceded, and
the superior court so ruled, that Nelson, who was president and general agent of the defendant
corporation, had no authority, as such, to execute the contract. There was evidence that one
director besides the president knew of this contract, but there was no direct evidence that the
other three directors had any knowledge of it.
It is the well-settled rule that a ratification, by a principal, of the unauthorized acts of an
agent, in order to be effectual, must be made with a knowledge, on the part of the principal, of
all the material facts, and the burden is upon the party who relies upon a ratification to prove
that the principal, having such knowledge, acquiesced in and adopted the acts of the agent. It
is not enough for him to show that the principal might have known the facts by the use of
diligence.
In the case at bar, therefore, it was incumbent upon the plaintiff to show that the directors,
or at least a majority of them, knew of the contract and its terms, and that, with such
knowledge, they acquiesced in and adopted it.
In our own state this court has had frequent occasion to enunciate and apply the law under
this head. (Clark v. Lyon County, 7 Nev. 75; Yellow Jacket M. Co. v. Stevenson, 5 Nev. 228;
Hillyer v. Overman M. Co., 6 Nev. 55; Lonkey v. Succor M. Co., 10 Nev. 17; Rankin v. N. E.
M. Co., 4 Nev. 78; Edwards v. Carson Water Co., 21 Nev. 469.)
In Clark v. Lyon County, supra, the court elucidated the theory which underlies the
doctrine of ratification, and stated it with a degree of cogency and simplicity which we have
found nowhere surpassed in any judicial utterance on the subject: "As it is essential to the
validity of a contract that the minds of the contracting parties meet in harmonious
understanding as to its tenor and provisions, so it is no less essential, where it is sought
to charge a party with ratifying it, that he give his assent understandingly; for a
ratification is after all but the execution of a contract on the part of the person ratifying
itit is the giving of his assent, without which no obligation would be imposed upon him.
which we have found nowhere surpassed in any judicial utterance on the subject: As it is
essential to the validity of a contract that the minds of the contracting parties meet in
harmonious understanding as to its tenor and provisions, so it is no less essential, where it is
sought to charge a party with ratifying it, that he give his assent understandingly; for a
ratification is after all but the execution of a contract on the part of the person ratifying itit
is the giving of his assent, without which no obligation would be imposed upon him. Hence
the rule respecting ratification.
The court held that it was not enough that the commissioners of Lyon County knew of the
existence of the contract unless they also knew its particulars; not enough that one of the
commissioners knew about it; and not enough that they actually paid four hundred dollars, on
account, for services rendered under it. No act will amount to a ratification of an
unauthorized contract, unless the person charged with the ratification is cognizant of all the
material features of the contract which he is claimed to have ratified, said Lewis, C. J.; and
he added: It was incumbent on the plaintiffs, who relied on ratification, to prove that the
commissioners knew of the contract, and not upon defendant to establish the negative.
In Yellow Jacket M. Co. v. Stevenson, supra, the president of the mining corporation
executed, without authority, a lease of a portion of the company's premises to Stevenson. The
court said: Here there is no evidence that the board of trustees, as such, knew of Stevenson's
occupation; and the acceptance of the money, paid by him, could not raise a presumption of
such knowledge. 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.
The court added: 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.
that the knowledge obtained unofficially by three of the trustees, that Stevenson was engaged
in extracting ore from the mine, is sufficient to charge the company with such knowledge. As
any number of trustees, acting individually and not as a board, cannot act for the corporation,
so any information obtained by individual trustees, and not communicated to the board,
should not, it would seem, become the foundation of a contract binding upon the company.
The trustees represent the corporation only when assembled together and acting as a board.
Such being the law, how can it be claimed that information communicated to them
individually, but not to the board, can be made the foundation of an implied contract on the
part of the corporation? 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. As it required a concurrent action of a majority to execute an express
contract on its behalf, the action of, or information communicated to any number less than a
majority, cannot become the basis of a contract binding upon the company. In this case, the
three trustees who knew that Stevenson was extracting ore from the mine, might be deemed
to assent to it; still, unless they constitute a majority of the members of the board, their action
or implied assent could no more bind the corporation than an express contract entered into by
any one of them alone could. The record here does not show that there were a majority of the
board of trustees of the plaintiff, a fact necessary to be shown by the defendant before he
could claim the corporation to be bound by their act, or be chargeable with information
obtained by them. So, even if it were admitted that the act of a majority of the trustees, not
acting as a board, could not bind the corporation, still as it is not shown in this case, that a
majority did so act, or have knowledge of Stevenson's possession, the result here would be
unchanged.
Hillyer v. Overman M. Co., supra: An arrangement was made between the plaintiffs and
the superintendent of the defendant, whereby plaintiffs rendered legal services to
defendant.
was made between the plaintiffs and the superintendent of the defendant, whereby plaintiffs
rendered legal services to defendant. The superintendent paid the retainer for several months.
Defendant successfully resisted suit for the balance. The court said: The trustees can only
bind the corporation under our law when they are together as a board, acting as such (citing
Yellow Jacket M. Co. v. Stevenson, supra.) The plaintiff's proposition not having been
brought to the knowledge of the board, it cannot be presumed it knew anything of it, and
consequently cannot be held to have accepted it. The burden of establishing the contract was
upon the plaintiffs; having failed to do this, the judgment must be reversed.
Rankin v. N. E. M. Co., supra: An action to recover on contract for mine timbers. Held,
that the acceptance and use of the timbers by the defendant company would not operate as a
ratification unless the plaintiff proved that it was with full knowledge on the part of the board.
Lonkey v. Succor M. Co., supra: Here was a written agreement on the part of one Grant to
sink a shaft and pay for all timbering. The superintendent of the mining company
subsequently made a verbal agreement, purporting to relax the timbering clause. The court
found that the undertaking on the part of the superintendent was unauthorized and that no
knowledge of the matter had been brought home to the corporation and therefore held it was
not bound.
Edwards v. Carson Water Co., supra: The court said: As we understand the law, 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 be made known to the principal.
(Reviewing Yellow Jacket M. Co. v. Stevenson, and Hillyer v. Overman M. Co., supra.)
We respectfully submit to the court that the record in the case at bar falls clearly within the
rules and precedents established by the court in the foregoing cases. Plaintiff failed to show a
ratification of the unauthorized agreement.
It may be that plaintiff relied upon the payment of moneys to the defendant to establish a
ratification. If so, his record still falls short of the mark; for no ratification can be established
from the fact of the retention of moneys unless it be affirmatively proven that the directors
retained them with a knowledge of the attendant circumstances. It is knowledgenot
noticewhich the rule of ratification requires; and money paid to and retained by the
corporation does not constitute ratification unless the board of directors are proven to have
knowledge of the account on which the moneys are paid and the terms of the contract.
(Yellow Jacket M. Co. v. Stevenson, 5 Nev. 224; Wheeler v. Northwestern Sleigh Co., 39 Fed.
347; Baldwin v. Burrows, 47 N. Y. 199; Penn Co. v. Dandridge, 36 N. Y. 78; Jackson v.
Badger, 26 N. W. 909; P. R. M. Co. v. D. S. & G. R. Ry. Co., 5 Fed. 858.)
The foregoing argument, touching the status of the written agreement of November 28,
1905, is equally applicable to the alleged oral agreement between Henningsen and Tripp
whereby Henningsen agreed to sell ties to the railroad at 25 cents per tie. Said oral
agreementamong other infirmitieswas unauthorized in the first instance, and there is not
even a micros[c]opic scrap of evidence to show that it was ratified.
Defendant's exceptions to the first instruction given by the court on its own motion are
well taken.
The instruction assumes that there was a preponderance of evidence, and does not instruct
the jury what course to pursue in the event that the evidence was equally balanced.
The court failed to instruct the jury upon whom the burden of proof rested, or that the
affirmative of all issues must be proved by the party maintaining the same by a preponderance
of the evidence.
Said instruction is erroneous for the further reason that the jury were instructed, that if
any witness had wilfully sworn falsely as to any material matter it is your duty to distrust the
entire evidence of such witness."
your duty to distrust the entire evidence of such witness.
It was error to instruct the jury that it was their duty to distrust, instead of that they
were at liberty to distrust, such witness. (State v. Burns, 27 Nev. 289; State v. Banks, 5
South. 18; State v. Baker, 56 N. W. 425; Cole v. Lake Shore & M. S. Ry. Co., 54 N. W. 638;
Trimble v. Territory, 71 Pac. 932; Church v. Chi. & A. Ry. Co., 23 S. W. 1056; Hoge v.
People, 6 N. E. 796; Jones on Evidence, sec. 905, p. 1997, and cases cited.)
Said instruction should also have been qualified by the words, except in so far as it is
corroborated by other credible evidence. (State v. Burns, 27 Nev. 289; State v. DeWolfe, 74
Pac. 1086; Cameron v. Wentworth, 57 Pac. 648; Hinkle v. State, 21 S. E. 601.)
It is the duty of the court to instruct the jury upon every point presented by the issue.
(Hanchett v. Kimbark, 2 N. E. 520; First Nat. Bank. v. Carson, 46 N. W. 276; Marsh v.
Cramer, 27 Pac. 169; Douglas v. McAllister, 7 U. S. 298.)
The second instruction given by the court on its own motion does not correctly state the
law and was error.
The jury were instructed that the plaintiff might pay for the ties delivered to him by the
defendant under contract in cash, checks, or by an offset or cross-demand against the
defendant.
A payment is the extinguishment of a debt, and is not in the nature of a set-off, which may
be used or omitted as a defense at the pleasure of the defendant. (Broughton v. McIntosh, 1
Ala. 103; Strong v. McConnell, 10 Vt. 231.)
Mutual indebtedness does not work an extinguishment of the respective debts without the
application of them to each other by the concurrent acts of the parties. (Seitzingsen v.
Alspack, 4 Atl. 203; Past v. Carmalt, 37 Am. Dec. 484.)
Offsets and cross-demands are not payments, except by express agreement. (McCurdy v.
Middleton, 82 Ala.
131, 2 South. 721; City Savings Bank v. Stevens, 15 N. Y. Supp. 139; Ulsch v. Muller, 9 N.
E. 736; Kennedy v. Davidson, 33 S. E. 291; Hill v. Austin, 19 Ark. 230.)
If we admit that, under sections 3142 and 3143, Comp. Laws, a cross-demand would
constitute payment, then only such cross-demands as would constitute a counter-claim as
specified in said section 3142 could be set up as payment; and the jury should have been
properly instructed as to what cross-demands would constitute payment.
The jury should have been instructed that no cross-demand arising upon contract would be
valid against the defendant, unless such contract was in writing. (Comp. Laws, 981.)
Said instruction is erroneous and was misleading for the further reason that, in his second
cause of action, plaintiff alleged that the sum of $332.67 was due from defendant to him for
ties sold by him to defendant, and plaintiff was thereby precluded from claiming this sum also
as payment to defendant upon ties delivered to him under the contract, as a set-off,
cross-demand or otherwise.
In the second paragraph of said instruction the jury were instructed, that if the plaintiff was
not indebted to the defendant on July 17, 1906, for ties theretofore delivered to him under
said agreement, then it was their duty to find for the plaintiff, thereby making said
indebtedness the only issue in the case and taking from the jury the consideration of all other
issues therein.
A general verdict cannot be upheld where there are several issues tried, and upon any one
of them error is committed in the admission or rejection of evidence, or in the charge of the
court, because it may be found that the jury founded their verdict upon the very issue to which
the erroneous ruling related, and that they were controlled in their finding by that ruling.
(What Cheer Coal Co. v. Johnson, 56 Fed. 813; Creswell Ranch and Cattle Co. v.
Martindale, 63 Fed. 90; St. Louis I. M. & S. Ry. Co. v. Needham, 63 Fed. 114; Jas. Holmes
Fuel and Feed Co. v.
Feed Co. v. Com. Nat. Bank, 47 Pac. 289; Maryland v. Baldwin, 12 U. S. 490, 28 L. Ed.
822.)
The third instruction given by the court on its own motion is erroneous. Said instruction
was not made to apply to the specific ties referred to in the contract of sale, and undelivered
on July 17, 1906.
Said instruction was as follows: If you believe from the evidence that the plaintiff is
entitled to recover damages in this case, then I charge you that the measure of such damages
would be the difference, if any, between the cost price of such ties under the terms of said
agreement, and the reasonable market value thereof at any time between July 17, 1906, and
July 25, 1906, if you find from the evidence that the reasonable market value thereof, during
said times, was greater than the cost price thereof under the terms of said agreement.
The instruction gives the measure of damages, as conceived by the court to be correct, but
totally neglects to instruct the jury upon what particular ties this measure of damage is to be
applied. From a reading of the instruction it might well be supposed that the jury, in assessing
the damages, included in such assessment all of the ties mentioned in the written contract of
November 28, 1905, regardless of whether such ties had already been delivered to
Henningsen or whether they were still undelivered. The jury should manifestly have been
instructed to base their damages upon only the ties which they should find from the evidence
were still undelivered under the contract of November 28, 1905. From the excessive verdict
brought in, it looks very much as though the jury based their assessment upon all of the ties
which the plaintiff attempted to prove were included under the terms of said contract of
November 28, 1905. In no portion of the instructions given the jury are the jury instructed to
confine their computation of damages to the ties mentioned in the contract of November 28,
1905, which had not yet been delivered to the plaintiff.
We have argued above that the alleged verbal contract, to sell ties to the railroad at 25
cents per tie, is a nudum pactum, but if it has any legal force or effect whatsoever, we
contend that its operation is limited and defined by the rule laid down in Pixley v. W. P. R.
R. Co.,
pactum, but if it has any legal force or effect whatsoever, we contend that its operation is
limited and defined by the rule laid down in Pixley v. W. P. R. R. Co., 33 Cal. 198, and
Foulke v. San Diego R. R. Co., 51 Cal. 367, cited above. Both cases pass on the statutory
provision, No contract shall be binding upon a railroad company unless made in writing.
(See Comp. Laws, 981.)
In Pixley v. W. P. R. R. Co., it was held that the clause referred to executory and not to
executed contracts, and that when a corporation takes and holds the benefit derived from the
performance of a contact not in writing, it is liable to the extent of the benefit received.
In Foulke v. San Diego, supra, the court said: The true rule to be deduced from the
opinion in Pixley v. Western Pacific Railroad Company is that the provision of the statute
must be limited to contracts wholly executory. It cannot refer to those liabilities which the
law itself implies from benefits received and actually enjoyed, where the services have been
performed on the one side and received and enjoyed on the other. In the last class of cases,
however, the action must be brought upon the implied promise, and the recovery must be
limited to the value of the actual benefit received.
In view of the foregoing authorities and the rule laid down in these cases, it was gross error
for the court to give the above instruction to the jury, of its own motion, said instruction being
erroneous for the following reasons:
No recovery whatsoever for the ties mentioned in the second cause of action in plaintiff's
complaint set forth, could be had, because said second cause of action alleges an express
agreement to sell ties at the agreed prices of 25 cents and 50 cents each. Since we have shown
that the contract and agreement for such sale was oral, under the authorities cited supra, the
only recovery which could be had by plaintiff would have been upon an implied contract for
payment of the reasonable value of such ties. Since the only liability (if indeed there was any
liability) which rested upon the defendant was an implied liability to pay plaintiff the
reasonable value of the ties mentioned in plaintiff's second cause of action, so sold to
defendant by plaintiff, and since the plaintiff has declared upon and alleged an express
contract in his said second cause of action, plaintiff cannot recover anything upon said
second cause of action, for the manifest reason that a plaintiff cannot recover upon an
allegation of an express contract in his pleadings where the evidence shows an implied
contract and nothing else.
implied liability to pay plaintiff the reasonable value of the ties mentioned in plaintiff's
second cause of action, so sold to defendant by plaintiff, and since the plaintiff has declared
upon and alleged an express contract in his said second cause of action, plaintiff cannot
recover anything upon said second cause of action, for the manifest reason that a plaintiff
cannot recover upon an allegation of an express contract in his pleadings where the evidence
shows an implied contract and nothing else. There would be a fatal variance between his
allegations and proofs. (Schirmer v. Drexler, 134 Cal. 134.)
Therefore, the instruction just quoted was erroneous, for it unqualifiedly allowed and
directed the jury to find damages against the defendant on plaintiff's second cause of action
for such ties so sold and delivered.
A set-off may be used or omitted as a defense at the pleasure of the party in whose favor it
exists. (Broughton v. McIntosh, 1 Ala. 103; Past v. Carmalt, 37 Am. Dec. 484; Seitzinger v.
Alspack, 4 Atl. 203; Strong v. McConnell, 10 Vt. 231.)
A party has the right to have an instruction given in his own language if pertinent,
unambiguous and correct in law. (Jordan v. Benwood, 42 W. Va. 312, 26 S. E. 266.)
When the burden of proof is on plaintiff, the jury should be instructed that unless the
evidence preponderates in plaintiff's favor, they should find for the defendant, and not to
make up their verdict from a preponderance of the evidence. (Gulf C. & S. F. Ry. Co. v.
Fowler, 34 N. W. 661.)
The jury should have been instructed that the burden of proof was on the plaintiff to
establish his case by a preponderance of the evidence. (Brickwood Sackett Instructions, vol.
1, secs. 359, 360; Illinois Cent. Ry. Co. v. Prickett, 71 N. E. 437; North Chicago St. Ry. Co.
v. Boyd, 40 N. E. 955; Powell v. Georgia F. & A. Ry. Co., 49 S. E. 761; Wells v. Houston, 57
S. W. 589; Chicago Union T. Co. v. Olsen, 71 N. E. 985; Howard v. Britton, 9 S. W. 73;
DeHart v. Board of Com., 41 N. E. 825; Chicago City Ry. Co. v. Carroll, 6S N. E. 10S7; John
Ainsfield Co. v.
Chicago City Ry. Co. v. Carroll, 68 N. E. 1087; John Ainsfield Co. v. Rassmusson, 85 Pac.
1002.)
The jury should have been instructed that if the evidence was equally balanced their
verdict should be for the defendant. (Brickwood Sackett Instructions, vol. 1, secs. 356, 361;
Allen-West Com. Co. v. Hudgens & Bro., 86 S. W. W. 291; Wrigley, et al. v. Cornelius, et al.,
44 N. E. 406; Alton L. & T. Co. v. Oliver, 119 Ill. App. 190; Haywood v. Scott, 141 Ill. App.
531.)
Defendant's instruction No. 2 contains a correct statement of the law upon preponderance
of evidence, and should have been given. (Brickwood Sackett Instructions, vol. 1, sec. 353;
Pfaffenback v. L. S. & M. S. Ry. Co. 41 N. E. 530; Chicago Union T. Co. v. Yarmus, 77 N. E.
1129.)
In the first instruction given by the court upon its own motion, the jury were instructed
that, if the evidence is contradictory the decision must be made according to the
preponderance of the evidence, but the jury were not told what was meant by a preponderance
of the evidence; and for this reason defendant's instruction No. 2 should not have been given.
(Junction City v. Blades, 41 Pac. 680.)
The jury should have been instructed to consider the opportunities of the respective
witnesses for knowing the facts to which they testified, in determining their credibility, and
the preponderance of the evidence. (Jones v. Alabama Mineral Ry. Co., 18 South. 32, 33;
Louisville & N. Ry. Co. v. Ward, 61 Fed. 931.)
The jury should have been instructed that any indebtedness claimed by plaintiff against
defendant would not relieve or excuse him from paying for the ties delivered to him under the
contract, and as specified therein.
Defendant presented six instructions on this point, presenting the law in different phases
and language, all of which were refused.
Payment can only be made in money. (See cases cited supra; Strong v. McConnell, 10 Vt.
231; Broughton v. McIntosh, 1 Ala. 103.)
The jury should have been instructed that if plaintiff was guilty of a breach of the contract,
the fact that the defendant thereafter delivered ties to him under said contract would not be a
waiver of such breach. (Gardner v. Clark, 21 N. Y. 403; Marky v. City of Milwaukee, 45 N.
W. 30; Dunn v. Daly, 78 Cal. 640; Lowenfeld v. Curtis, 72 Fed. 105.)
One of defendant's defenses to this action was that plaintiff had breached the contract by
his failure to pay for the ties delivered to him thereunder prior to defendant's refusal to
proceed futher under the same, and defendant was thereby relieved from making any further
deliveries; and defendant was entitled to have the jury properly instructed upon this issue.
(Bering Mfg. Co. v. Femelat, 79 S. W. 873, and cases cited supra.)
The court erred, not only in instructing the jury, but also in refusing to give instructions
requested by the defendant, and it cannot be said that the defendant was not prejudiced by
such errors.
It is only when there is no doubt what the result of another trial must be, no doubt that the
error at the first trial created no prejudice, that an appellate court may disregard that error and
affirm the judgment. The presumption always is that error produces prejudice, and the latest
decisions of the supreme court rule that it must appear beyond doubt that the error did not
prejudice, and could not have prejudiced, the party who complains of it, before a new trial can
be lawfully denied. (United States v. Price Trading Co., 109 Fed. 250.)
And to the same effect are Mexia v. Oliver, 148 U. S. 673, 37 L. Ed. 606; Deery v. Cray, 5
Wall. 807, 18 L. Ed. 657; Gilmer v. Higley, 110 U. S. 50, 28 L. Ed. 63; Railroad Co. v.
O'Brien, 119 U. S. 103, 30 L. Ed. 299; Brown v. Cranberry Iron and Coal Co., 72 Fed. 102;
National Masonic Acc. Assn. v. Shryock, 73 Fed. 781; Lyon, Potter & Co. v. First Nat. Bank,
85 Fed. 125; Durant M. Co. v. Percy Con. M. Co., 93 Fed. 169.)
In conclusion, and by way of recapitulation, we submit:
1. That the evidence was insufficient to sustain the verdict.
verdict. Henningsen owed the railroad company the sum of $6,540.66. The record shows that
he fell far short of paying the debt, whether we limit him to the payments he might lawfully
be entitled to claim or whether we concede to him every item of payment, credit and offset
disclosed by the record. He was not entitled to a verdict under the instructions of the court.
2. The agreement of November 28, 1905, upon which the action was predicated, was not a
corporate obligation and was not binding on the defendant.
3. The damages were excessive.
4. The instructions and rulings of the court were erroneous and prejudicial.
5. The judgment should be reversed with instructions to enter judgment for defendant.
McIntosh & Cooke, for Respondent.
By the Court, Talbot, J. (after stating the facts as above):
In elaborate and carefully prepared briefs some propositions have been argued which are
not deemed strictly applicable to this case. We will consider more particularly the contentions
of appellant that the agreement of November 28, 1905, was not authorized by or binding upon
the railroad company; that the evidence is insufficient to sustain the verdict, because it is
asserted that Henningsen owed the railroad company, and consequently had forfeited the
contract at the time the company sought to cancel it; that the damages were excessive; and
that the instructions of the court were erroneous or prejudicial.
It does not appear that there was any resolution of the board of directors of the railroad
company directing the sale of the ties, or ratifying the contract after sale. We need not
speculate as to whether the general superintendent of a railroad as ordinarily officered and
managed would have the right, under his usual powers, to sell discarded ties without special
authority from the board of directors.
At a meeting in Philadelphia, Alonzo Tripp had been employed to come to Nevada and to
build and operate the road. This building of the road consisted, in part, of broad-gaging that
portion of it from which the narrow-gage ties in dispute were taken. The facts that some of
the bills collectible, marked Paid, were credited to broad-gaging on the forms of the
company, bearing the printed direction that remittance be made to Alonzo Tripp, general
superintendent, that one of them, signed by him, approved by the auditing officers, and
receipted by the assistant treasurer, referred expressly to the contract, and the others were for
ties at the contract price, and the other circumstances indicate that the ties were subject to
disposition under the general powers he was exercising. He was the head officer, charged
with the control and management of the road in the state where it was situated.
The power to build, broad-gage, and operate the road would seem to carry with it the
authority to sell ties which were being discarded or removed as the road was being
broad-gaged. As the ties were being stolen and burned, it was to the advantage of the
company to have them sold, and we think that under the general authority given and
conditions shown he could make a contract for the sale of the ties as binding as contracts
made by him for the furnishing of new or broad-gage ties, or of fuel for the operation of
trains, and that it was not necessary to have a special resolution of the board in Philadelphia
for every transaction relating to the construction and operation of the road. The general
authority of Tripp could be fairly implied to authorize him to conduct the ordinary operations
and legitimate business of the road, within which would be included the disposition of
narrow-gage ties taken out while he was broad-gaging the road. In this connection we
distinguish and do not disagree with cases which have been cited where the conditions were
different, and wherein it was held that officers of a company were not authorized to sell or
mortgage real estate or other property not in line with the ordinary business of the company
without special authority from the board of directors.
business of the company without special authority from the board of directors.
If the execution of the contract had not been authorized in the first instance, the
circumstances are such as to raise the presumption that it was ratified. When we consider that
prior to the making out of the contract the president assented to the statement of Tripp that
they ought to get rid of the narrow-gage ties; that this contract was drawn up by the regular
attorneys for the company and turned over to the auditor; that deliveries of ties under it were
made for about six or seven months after its execution under the direction and supervision of
Tripp, the head officer of the company in control of its business in the state, of his successor,
Hedden, and of the auditor, chief clerk, and assistant treasurer of the company; that bills
collectible, showing the sale of the ties as per the contract and at the contract price, and the
receipt of payments for them, on the blanks of the company, were made out and approved by
these officials and filed in its accounting department; that Tripp notified Brock, the president
of the company, by letter to the head office of the company in Philadelphia, of the execution
of the contract soon after it was made, and a little later showed him the contract when he
came to Tonopahwe must conclude that the company knew, or ought to have known, that
the contract had been executed, that the ties were being delivered, and that money was being
received for them. By the knowledge with which it was chargeable and the conduct of its
various officers, and by its acts and acquiescence in these conditions during this long period,
the company would have become bound by the contract if its execution had not been
authorized.
In the case of Edwards v. Carson Water Co., 21 Nev. 469, to which, with others, we have
been cited, the facts were far from similar to the conditions in the present case, and a different
principle of law applied. It was there sought to recover from the corporation on an obligation
which had been originally due from the president of the company individually, but for which
he had signed a note as president of the company.
33 Nev. 208, 245 (1910) T. & G. R. R. Co.
a note as president of the company. In that case this court said: 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 principal. 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. 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; Ang. & A. Corp., secs. 308, 309.)
Some of the cases make a distinction between ratification of an unauthorized act and such
laches as will be held to estop from denying the granting of authority. (2 Morawetz, Corp.,
sec. 628.)
In Kelsey v. Bank, 69 Pa. 429, the court said: 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.
In Murray v. Lumber Co., 143 Mass. 250, 9 N. E. 634; 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.
In Morawetz on Corporations, sec. 630, 633, it is said: 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.
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. 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.
In Olcott v. Tioga Railroad Co., 27 N. Y. 546, 84 Am. Dec. 298, where the question was
whether the corporation had ratified the unauthorized act of the president in executing a bill
of exchange, the court said: 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 in as
much 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 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 Union Gold Mining Co. v. Bank, 96 U. S. 640, 24 L. Ed. 648, the president of the
mining company was informed of the 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.
a reasonable time repudiate the act of the manager in borrowing the money. It was held that
such notice to the president was notice to the company, and that the jury were authorized to
conclude that the company had consented to what had been done in its name. In a concurring
opinion it was said: 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.
It is unnecessary to advert further to the numerous cases maintaining this legal principle.
As the contract states that the company is the owner of a quantity of narrow-gage ties
heretofore used in the construction, maintenance, and operation of the line of railroad prior to
standard-gaging the same, and provides for the sale of all and singular the stock of
narrow-gage ties now owned by the first party and distributed at various places along the line
of the first party's railroad, and that the agreement shall remain in force and effect until the
first party has delivered to the second party all of the ties above mentioned, we conclude that
the contract covers all the narrow-gage ties which the company removed in broad-gaging the
track, or which it had on hand at the time the agreement was made.
It is not necessary to determine whether the narrow-gage ties which were not removed, and
which were never intended to be removed, from the sidetracks or the main track, if all were
not removed from the main track, were included in the agreement; for they are conceded to
the appellant by the respondent, and therefore may be treated as a part of the track, instead of
ties, within the meaning of the contract. It is not assumed that there was any intention to sell,
or ratify the sale of, ties that were not to be removed from the track.
Appellant claims that the ties which were used by the company in platforms, buildings,
and bunkers were not intended to be included in the agreement; but the contract makes
no exception in this regard.
company in platforms, buildings, and bunkers were not intended to be included in the
agreement; but the contract makes no exception in this regard. If, after making this contract,
which reserves no ties for these purposes, the company could exempt any ties it desired or
needed, it could have used all the ties for building or other purposes, and thereby nullify the
contract entirely, or at any time it desired after a part of the ties had been delivered. Hence the
contract did not allow the company to make any such reservation, which, if contemplated or
desired at the time of its execution, ought to have been made one of its terms. It bound
Henningsen to take all ties, without reservation, within a reasonable time (9 Cyc. 611, b), and
if the company had not desired to use any for its own purposes it could have required him to
take all of them, and standing on the other side of the agreement he was entitled to have all of
them.
It is urged that Henningsen breached the contract because he had not been paid for all the
deliveries at the time Hedden, the general superintendent, wrote Henningsen, July 16, 1906,
that he considered that by reason of nonpayment Henningsen had violated and abrogated the
agreement. Many of the decisions are conflicting as to whether the refusal of a purchaser to
make payment for each delivery is ground for the cancelation of a contract providing for other
installments. This discrepancy in some of the authorities is more apparent than real, because
the circumstances are so variant as to give good reasons for different conclusions. In addition
to several cases cited by appellant, holding that a failure by one of the contracting parties to
pay at a stipulated time gives the other the right to terminate the contract, many other
decisions are found both supporting and opposing this view.
In Ross-Meehan Foundry Co. v. Royer Wheel Co., 113 Tenn. 370, 83 S. W. 167, 68 L. R.
A. 829, 3 Am. & Eng. Ann. Cas. 899, under a contract for the purchase of castings providing
for delivery during the term of three years, the failure of the defendant to make payment for
castings delivered as provided by the contract was held to give the plaintiff the right to
decline to make further deliveries.
castings delivered as provided by the contract was held to give the plaintiff the right to
decline to make further deliveries. There was a delay of about nine months in making
payment for the castings received, and complaint for failure to make payment for deliveries
made. After quoting from section 1140 of Mechem on Sales, the court continued: That
author, after putting the question, Does the default of one party in delivering or paying one
installment justify the other in treating the contract as at an end, or must the latter continue
performance on his own part, relying on his action for damages to compensate him for the
breach by the former?' proceeds then to discuss both English and American authorities. In
summing up as to the English cases, he finds that the rule prevailing there is the one
announced in the Mersey Steel Case (9 App. Cas. 434), before referred to. As to the American
cases, in section 1148 he says, though not in harmony, that the view that the failure of either
party to perform an essential term of the contact gives to the other the right to rescind that
contract is sustained by the clear weight of American authority.' As enforcing this view the
author refers to Norrington v. Wright, supra (115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366),
Pope v. Porter, 102 N. Y. 366, 7 N. E. 304, and McGrath v. Gegner, 77 Md. 331, 26 Atl.
502, 39 Am. St. Rep. 415. Pope v. Porter was a case in which there was a contract for the
delivery of iron in two installments, and the seller made default in the delivery of the first, but
offered to deliver the second, which the buyer refused to accept. The court held that the first
failure of the seller justified the refusal of the buyer. * * * The case of McGrath v. Gegner,
supra, was where the same rule was applied in favor of the seller upon a default in payment
by the buyer. The contract there repudiated was for the sale of a lot of shells to be delivered in
weekly installments, each of which was to be paid for within a week following its delivery.
The buyer made default, and the seller repudiated the contract. * * * This view is also
supported by Kokomo Strawboard Co. v. Inman, 134 N. Y. 92, 31 N. E.
248; Winchell v. Scott, 114 N. Y. 640, 21 N. E. 1065; George H. Hess Co. v. Dawson, 149 Ill.
138, 36 N. E. 557; Providence Coal Co. v. Coxe, 19 R. I. 380, 382, 35 Atl. 210; Rugg v.
Moore, 110 Pa. 236, 1 Atl. 320; Branch v. Palmer, 65 Ga. 210; Baltimore v. Schaub, 96 Md.
534, 54 Atl. 106. On the other hand, New Jersey, in Blackburn v. Reilly, 47 N. J. Law, 290, 1
Atl. 27, 54 Am. Rep. 159, and other cases; Michigan, in West v. Bechtel, 125 Mich. 144, 84
N. W. 69, 51 L. R. A. 791; and the United States Circuit Court of Appeals for the Sixth
Circuit, in Cherry Valley Iron Works v. Florence Iron River Co., 64 Fed. 569, 22 U.S. App.
655, 12 C. C. A. 306, and in Monarch Cycle Mfg. Co. v. Royer Wheel Co., 105 Fed. 324, 44
C. C. A. 523adopt the rule announced in Mersey Steel Co. v. Naylor, supra, while the
Supreme Court of Iowa, in Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692, held that such a
contract was divisible, and that rescission would not be allowed unless the breach went to the
whole consideration.
In a note at 3 Am. & Eng. Cas. 901, it is said that under a contract for the continuing
deliveries of goods, payment to be made at stipulated times for previous deliveries, the seller
is not bound to continue delivery unless the purchaser is ready and willing to make payments
as required by the contract, and reference is made to several cases. Further over the note
proceeds: In Freeth v. Burr, L. R. 9 C. P. 208, Chief Justice Coleridge held that the mere
nonpayment for the first portion of goods contracted for, unattended by any other act on the
part of the purchasers, does not put an end to the contract, so as to disentitle the purchasers to
maintain an action for the nondelivery of the second portion. * * * In Midland R. Co. v.
Ontario Rolling Mills, 10 Ont. App. 677, the Ontario Court of Appeal said: The true test in
such cases is the one laid down by Lord Coleridge in Freeth v. Burr, L. R. 9 C. P. 208, fully
approved of in the House of Lords in the recent case of Mersey Steel Co. v. Naylor, 9 App.
Cas. 434. The question is, as explained by Lord Justice Bowen in that case in the Court of
Appeal, 9 Q. B. D. 648, not whether the conduct of one party to the contract was
inconsistent with the contract, but whether the conduct of one party to the contract was
really inconsistent with an intention to be bound any longer by the contract.
contract was inconsistent with the contract, but whether the conduct of one party to the
contract was really inconsistent with an intention to be bound any longer by the contract. That
must necessarily be a question of fact upon the evidence in each particular case.'
In Tucker v. Billing, 3 Utah, 82, 5 Pac. 554, a contract for the sale of lumber provided that
payment be made for 20,000 feet as often as 25,000 feet were delivered, and that the balance
be paid at the end of the year. It was held that the failure to make one payment for lumber
delivered was no excuse for the refusal of the seller to further deliver lumber according to the
terms of the contract. The court said: The parties undoubtedly could have made the payment
of any installment a condition precedent to a future delivery, and the nonpayment of any such
installment such a substantial violation of the contract as to authorize the other party to
abandon it. But they have not; nor can it be inferred from the language used.
In Monarch Cycle Manufacturing Co. v. Royer Wheel Co., 105 Fed. 324, 44 C. C. A. 523,
it was held that a contract for the sale and purchase of 2,000 bicycles at specified prices,
monthly shipments to be made as specified by the purchaser, was an entire contract; that the
failure of the purchaser to pay for the deliveries made within the time stipulated was not a
renunciation of the contract, which justified the seller in treating it as abandoned, or absolved
him from his obligation to make further deliveries, in the absence of a provision therefor in
the contract, unless there was a refusal by the purchaser to pay in such terms as indicated a
purpose on his part to renounce the contract.
In Hime v. Klasey, 9 Ill. App. 166, it was held that, as the contract did not make a failure
to pay for a preceding installment a condition precedent to the delivery of another, the vendor
could not rescind the contract until there was a demand for payment and refusal.
In Myer v. Wheeler, 65 Iowa, 390, 21 N. W. 692, there was an agreement to sell ten
carloads of barley, to be delivered from time to time. Upon the receipt of the first carload the
purchaser refused to pay for the same because it was not equal to the sample, but urged
shipment of the remainder of the barley, and promised to pay for future shipments.
first carload the purchaser refused to pay for the same because it was not equal to the sample,
but urged shipment of the remainder of the barley, and promised to pay for future shipments.
The seller refused to ship any more unless payment was made for the first carload. It was held
that the contract was severable, that the refusal to pay for the first carload did not entitle the
seller to rescind and refuse to deliver the other carloads, that the seller was entitled to recover
for the value of the carload delivered, and the purchaser to recover damages for the failure to
deliver the other nine carloads.
In Hansen v. Consumers' Steam Heating Co., 73 Iowa, 77, 34 N. W. 495, the plaintiff had
agreed to furnish to defendant, at a specified price, all the coal it would need during the
season, the coal furnished during any months to be paid for on the 10th of the following
month. It was held that the plaintiff could not declare the contract at an end on the failure of
the defendant to pay at the time agreed for the coal already delivered, and recover the market
value instead of the contract price for coal delivered thereafter.
In Blackburn v. Reilly, 47 N. J. Law, 290, 1 Atl. 27, 54 Am. Rep. 159, it was held that, on
a contract for the sale of goods by successive deliveries and payment, a default in respect to
one or more of these will not discharge the other party, unless it is evident that the defaulting
party no longer intends to fulfill the agreement. The contract provided for the sale of one car
of bark weekly for a year, at $18 a ton, payable on delivery.
In West v. Bechtel, 125 Mich. 144, 84 N. W. 69, 51 L. R. A. 791, it was held that the
refusal of the purchaser of wood to keep his agreement to pay for each shipment as received,
while he insisted on the complete delivery of the wood, did not constitute such an
abandonment of the contract on his part as would justify the seller in his refusal to ship any
more wood. After reviewing a number of cases, the court said: The Supreme Court of New
Jersey takes the same view of this question. (Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83;
Blackburn v. Reilly, 47 N. J. Law, 290, 1 Atl.
47 N. J. Law, 290, 1 Atl. 27, 54 Am. Rep. 159.) In the latter case the English and American
authorities were considered, and the rule adopted in the Mersey case was approved. The court
said: The rule to be applied in determining whether the express obligations of such contracts
remain, after one or more breaches by either party, has been the subject of much discussion of
late years, and has given rise to some contrariety of judicial opinion. * * * In our opinion the
rule established in England by the judgment of the House of Lords in Mersey Steel & I. Co. v.
Naylor, L. R. 9 App. Cas. 434, affirming the judgment of the Court of Appeal in L. R. 9 Q. B.
Div. 648, is one which in ordinary contracts of this nature will work out results most
conformable to reason and justice. The rule is that defaults by one party in making particular
payments or deliveries will not release the other party from his duty to make the other
deliveries or payments stipulated in the contract, unless the conduct of the party in default be
such as to evince an intention to abandon the contract, or a design no longer to be bound by
its terms. This rule leaves the party complaining of a breach to recover damages for his injury
on the normal principle of compensation, without allowing him the abnormal advantage that
might inure to him from an option to rescind the bargain. * * * It, of course, is inapplicable
where the parties have expressed their intention to make performance of a stipulation
touching a part of the bargain a condition precedent to the continuing obligation of the
contract; and peculiar cases might arise where the courts would infer such an intention from
the nature and circumstances of the bargain itselfcases in which the courts would see that
the partial stipulation was so important, so went to the root of the matter (to use a phrase of
Blackburn, J., in Poussard v. Spiers, L. R. 1 Q. B. Div. 410), as to make its performance a
condition of the obligation to proceed in the contract.' In New York the question was
considered in the case of Cahen v. Platt, 69 N. Y. 348, 25 Am. Rep. 203, and it was held that
a delivery of one invoice of glass that was inferior to that contracted did not justify the
purchaser in refusing to take subsequent consignments of glass corresponding with the
requirements of the contract.
contracted did not justify the purchaser in refusing to take subsequent consignments of glass
corresponding with the requirements of the contract. See, also, Ebling v. Bauer, 17 N. Y.
Week. Dig. 497; Selby v. Hutchinson, 9 Ill. 319; Bloomington Electric Light Co. v.
Radbourn, 56 Ill. App. 165; Gatlin v. Wilcox, 26 Ark. 309. The case of Meyer v. Wheeler, 65
Iowa, 390, 21 N. W. 692, is closely analogous to the present case. Plaintiffs sold defendants
ten carloads of barley. Defendants were to pay 75 cents per bushel for each carload, when
delivered. On receipt of the first carload the defendants refused to pay upon the ground that
the barley was not equal to the sample, but stated that they had given plaintiffs credit for 65
cents per bushel and would withhold payment until the ten carloads were delivered, and urged
shipment of the remainder. It was held that this did not entitle the plaintiff to rescind the
contract, and that he was liable for damages resulting from nondelivery of the remainder. See,
also, Burge v. Cedar Rapids & M. River R. Co., 32 Iowa, 101. A valuable note upon this
subject will be found in Lake Shore & M. S. R. Co. v. Richards (Ill.) 30 L. R. A. 33. The
authorities are reviewed in Norrington v. Wright, 115 U. S. 188, 6 Sup. Ct. 12, 29 L. Ed. 366,
though the exact question before us was not involved. An interesting note upon that case at
circuit will be found in 21 Am. Law Reg. (N. S.) 395, where the authorities, English and
American, are collected. In 2 Benjamin, Sales, 909, the author says that In America the law
appears to be fairly settled, in accordance with the case of Simpson v. Crippen, L. R. 8 Q. B.
14, viz, that in the absence of any expressed intention of the parties a contract for the sale of
goods by successive deliveries is severable, and the failure to accept or deliver one
installment does not entitle the other party to refuse delivery or acceptance of the installments
that remain.' Only one case, King Philip Mills v. Slater, 12 R. I. 82, 34 Am. Rep. 603, has
been found, in which the rule laid down in Simpson v. Crippen is directly attacked. The editor
of American Notes to the fourth edition takes issue with Mr.
Mr. Benjamin; but we think his views are not as well supported by the authorities as the
review of Norrington v. Wright, by Mr. Landreth. See, also, Clark, Contr. 652, et seq., Lee v.
J. B. Sickles Saddlery Co., 37 Mo. App. 201, and 1 Beach Modern Law of Contracts, 122,
123, 849, and notes.
Some of the cases which require the strictest performance to avoid forfeiture relate to
ordinary commercial transactions, and are based on the theory that promptness is for the
protection of trade. A careful reading of the opinion in Norrington v. Wright, 115 U. S. 188, 6
Sup. Ct. 12, 29 L. Ed. 366, indicates that the Supreme Court of the United States considered
mercantile contracts providing for separate deliveries in a class by themselves, and
distinguished between the failure of the seller to deliver and the purchaser to pay. The
language of the decision reconciles the conclusion in that case, that the failure of the seller to
deliver according to the agreement allowed the purchaser to rescind, with the judgment
affirmed by the House of Lords in Mersey Co. v. Naylor, 9 App. Cas. 434, holding that the
failure of the buyer to pay for the first installment upon delivery did not entitle the seller to
rescind and to decline to make further deliveries unless the circumstances evinced an
intention on the delinquent buyer's part to be no longer bound by the contract. In Norrington
v. Wright, the court said: And the grounds of the decision, as stated by Lord Chancellor
Selbourne in moving judgment in the House of Lords, are applicable only to the case of a
failure of the buyer to pay for, and not to that of a failure of the seller to deliver, the first
installment. In the contract of merchants, time is of the essence. The time of shipment is the
usual and convenient means of fixing the probable time of arrival, with a view of providing
funds to pay for the goods, or of fulfilling contracts with third persons.
Uncertainty has arisen by reason of the failure of some of the courts and text-writers to
recognize the distinction made in Norrington v. Wright, and by the unwarranted conclusion
that the decision in that case promulgated a rule in this country contrary to the one in
Mersey Co. v.
gated a rule in this country contrary to the one in Mersey Co. v. Naylor. In view of the sharp
conflict in the opinions of the eminent courts and leading text-writers, as indicated, and the
circumstances of this case, we do not deem it necessary to determine whether ordinarily the
failure to pay upon demand or statement rendered for one or more installments of goods or
personal property delivered under a contract of the character of the one on which this action is
based is sufficient ground for the cancellation of the agreement. Nor is it essential in reaching
a conclusion to consider whether Henningsen in fact owed the appellant at the time it was
sought to forfeit the contract; for not only have many of the courts held, as we have seen, that
failure to pay for an installment will not necessarily work a forfeiture of the contract, but in
this case prompt payment was waived. If appellant be given the benefit of the doubt, and it be
conceded for the argument that respondent breached the contract by failing to pay for the ties
at the time the deliveries were made, the appellant by its own delay and conduct lost the right
to rescind.
The letter or notice to Henningsen, claiming that he had forfeited the contract by
nonpayment and that the company was no longer bound by it, was based on the assertion that
he was owing the company about $900. In the final argument in this court the attorney for the
appellant admits that two checks had been paid by Henningsen, amounting to about $1,200,
which had been lost, which were not credited on the books of the company, and regarding
which Hedden probably was not informed. When sending the notice he may have believed
that the contract was forfeitable because payment had not been made at the time of deliveries;
but he may have been prompted to send it more by the notice given by Henningsen a short
time before that he would hold the company to account for ties it was using or selling than by
any anxiety for payment. Henningsen was claiming that the company was owing him, and it
does not appear that there was any intention on his part to make default on any payment
which he believed to be due at the time the company sought to cancel the agreement.
make default on any payment which he believed to be due at the time the company sought to
cancel the agreement. The notice contained no statement or demand for the price of any
specified number of ties or definite amount of money, and no warning to Henningsen that he
would not be supplied with more ties, as he had demanded, unless he paid for them on
delivery, or paid for previous deliveries, and no demand for any payment as a condition
precedent for making further deliveries. He would write at different times for a certain
number of cars to be delivered at Tonopah or Goldfield, and they would be forwarded and
delivered without any strict system of rendering statements or making collections. Under the
terms of the contract the company was entitled to have payment made upon delivery, and was
not required to make any deliveries without payment; but by making deliveries without
rendering statements or demanding payment at the time deliveries were made, and by
accepting payment later, the company waived payment at the time of making these deliveries.
The transactions of the parties and the delays in settlements and payments which had been
acquiesced in by the appellant led to dispute regarding the condition of the accounts.
By failure to collect for the ties at the times they were delivered, by accepting payments at
varying times later and continuing to make deliveries, by failing to present bills collectible,
other than those for which payments were made and accepted, before notice of forfeiture, the
company allowed the delay in making payments to grow into a practice, until there was
uncertainty regarding any balance due, and it was not justified in trying to cancel the contract
at the time the notice claiming forfeiture was given, without at least first presenting a
statement of the amount claimed, or making some demand and giving Henningsen an
opportunity to pay. If appellant had exacted or demanded payment at the time of each
delivery, and respondent had failed to pay, appellant would not have been obligated to make
further deliveries without payment being made for them at the time of delivery.
deliveries without payment being made for them at the time of delivery.
In Eaves v. Cherokee Iron Co., 73 Ga. 459, there was a contract for the sale of 20,000 tons
of iron ore, to be furnished at the rate of fifty tons per day, and it was held that when a
contract is in writing each party has the right to expect the other to do exactly what he
promises; but if, in the course of its execution, some of its terms are departed from, and
money is paid and received on that departure for some time, then before one of the parties can
recover from the other for failure to pursue the letter of the agreement he must notify him
with clearness of his purpose henceforth to stand on the original contract; that indefinite
complaint is not sufficient, and that until there is distinct and emphatic notice that thenceforth
the contract will be strictly enforced the departure is a sort of a new agreement. (2 Wharton
on Contracts, 870, note.)
Mr. Parsons, in his work on Contracts (vol. 2, p. 835, 9th ed.) says: It is a general rule
that a party, having a right of rescission because of the fault or act of the other, should make
known his rescission, as soon as may be after he knows his right to rescind.
In Byrne Mill Co. v. Robertson, 149 Ala. 273, 42 South. 1008, it is said that the right of a
seller to terminate a contract of sale upon the refusal of the purchaser to perform by payment
for goods already delivered may be waived by words or by conduct.
In Upton v. Sturbridge Cotton Mills, 111 Mass. 446, it was held that the delivery,
apparently unrestricted, of goods sold for cash, was a waiver of the condition that payment
must be made before the passing of the property, although the seller had an undisclosed intent
not to waive condition.
In Hebron Mfg. Co. v. Powell Knitting Co., 171 Fed. 817, 96 C. C. A. 489, in a decision
rendered after the case before us had reached this court, it was held that where, under a
contract for the sale of yarn, to be delivered in weekly shipments, the purchaser made
payments semimonthly, instead of ten days after each bill of lading, as required by the
contract, and such payments were accepted by the seller and shipments continued, the
seller could not cancel the contract because of such deviation from its terms, without
reasonable notice to the purchaser.
instead of ten days after each bill of lading, as required by the contract, and such payments
were accepted by the seller and shipments continued, the seller could not cancel the contract
because of such deviation from its terms, without reasonable notice to the purchaser. The
court quoted with approval language from the opinions in Portland Ice Company v. Conner,
32 Pa. Super. Ct. 428, and Forsyth v. Oil Company, 53 Pa. 168; the language holding that
where the parties have not exacted strict compliance with the conditions of the contract, or
required prompt payment, lack of which was alleged as a ground for rescission, and liberal
indulgence has been allowed, the contract cannot be suddenly rescinded without fair warning
or such reasonable notice as would afford the other party an opportunity to adapt himself to
the new situation.
In Southern Car Mfg. Co. v. Scullin, 38 Tex. Civ. App. 112, 85 S. W. 845, it was held that
the fact that the purchaser in a contract for sale had not paid the seller for goods previously
sold did not authorize the seller to rescind the contract.
In Martin v. Wirts, 11 Ill. App. 568, it was held that where there is an absolute and
unconditional delivery of goods sold, without exacting performance of any condition
precedent, the vendor will be presumed to have abandoned the security he had provided, and
to have elected to trust to the personal security of the vendee.
In Smith v. Lynes, 5 N .Y. 41, it is said that where goods sold, to be paid for on delivery by
notes, are delivered to the purchaser without notes being given or demanded, the presumption
is the condition is waived.
In Little Rock Cooperage Co. v. Lanier, 83 Ark. 553, 104 S. W. 222, the court said: This
testimony shows conclusively that the idea of a forfeiture for failure to pay promptly was not
entertained at the time of such failure, but was an after-conception. Appellees should have
been ingenuous and candid with appellant, and should have notified it, at the time of these
alleged breaches, that they intended to insist upon them as forfeitures. Not having done so
then, they cannot do so now.
In United States Iron Co. v. Sloss, 71 N. J. Law, 1 58 Atl. 173, it was said that a single
shortage was not ground for the rescission of the contract by the buyer after acceptance of
subsequent shipments of the quantity stated in the contract.
In Wolfert v. Ice Co., 195 N Y. 118, 88 N. E. 24, 21 L. R. A. (N. S.) 864, it was held that
the acceptance, by one who has contracted for ice to be delivered from day to day in such
quantities as he may designate, of less than the quantity designated on a particular day, will
prevent his rescission of the contract for refusal to deliver the entire amount of installment.
In McDonald v. Kansas City Bolt Co., 149 Fed. 360, 79 C. C. A. 298, 8 L. R. A. (N. S.)
1110, it was held that, in an entire contract for successive deliveries of goods sold, a vendor's
breach in the early deliveries may relieve the vendee from liability for subsequent deliveries,
if prompt notice of refusal to perform is given, and that upon the discovery of the vendor's
breach the vendee has the option to perform or to refuse to perform the remainder of the
contract; but silence, delay, or the failure to give immediate notice of his choice to refuse is a
choice to perform and obligates him to comply with the contract. At 8 L. R. A. (N. S.) 1110,
the following appears in the note: The rule stated in the case in hand, requiring a vendee
under a continuing contract to give immediate notice of his intention to terminate the contract
because of a breach as to preceding deliveries, is apparently resultant from the
well-established doctrine that a party seeking to rescind a contract because of defective
performance by the other party must act promptly, and that such defects are deemed waived
when objection is not made within a reasonable time. In Norrington v. Wright, 115 U. S. 188,
6 Sup. Ct. 12, 29 L. Ed. 366, in holding that the purchaser of a quantity of iron rails, to be
shipped in certain proportions monthly, was justified in rescinding the whole contract because
of the vendor's failure to ship the required number of tons in the first two installments, the
court attached the proviso that the right of rescission must be distinctly and seasonably
asserted; and it was further held that there was a seasonable assertion of the right where
notice of rescission was given as soon as the purchaser knew that the quantities
theretofore received were less than the contract called for.
be distinctly and seasonably asserted; and it was further held that there was a seasonable
assertion of the right where notice of rescission was given as soon as the purchaser knew that
the quantities theretofore received were less than the contract called for. In Clark v. Wheeling
Steel Works, 3 C. C. A. 600, 3 U. S. App. 358, 53 Fed. 494, an instruction that any right
which the purchaser might have had to rescind a contract for the purchase of a quantity of
steel slabs and billets, to be delivered in fixed installments, on account of defects in earlier
installments, was lost if the jury should find that there was an unreasonable delay in asserting
it, was approved. * * * In Johnson v. Allen, 78 Ala. 387, 56 Am. Rep. 34, it was said that the
delivery of only a part of the quantity ordered, or a failure to deliver any part of it, does not
terminate a contract for successive deliveries, unless the purchaser sees proper so to treat and
regard it. In Miller v. Moore, 83 Ga. 684, 10 S. E. 360, 6 L. R. A. 374, 20 Am. St. Rep. 329,
it was held that a defect of quality in certain carloads of grain, which were accepted and paid
for, would not justify the purchaser of a number of cars of grain in bulk in rejecting other
carloads subsequently tendered which were according to contract, where neither of the parties
elected or intended to rescind or abandon the contract in whole or in part, and that such party
might be held liable for the damages resulting from his failure to accept. In Guernsey v. West
Coast Lumber Co., 87 Cal. 249, 25 Pac. 414, it was held that where the purchaser accepted
and paid for lumber delivered under a continuing contract to buy all the lumber of good
merchantable quality which should be manufactured at a certain mill, without reserving the
right to object to it subsequently, any ground of objection to it which might have existed
would not justify a refusal to accept subsequent lumber which was in accordance with the
contract. In Moran v. Wagner, 28 App. D. C. 317, it was held that the proviso that a
purchaser must act with due diligence is attached to his right to rescind a contract for the sale
and purchase of a quantity of oats, to be shipped from time to time, because a shipment was
not of the specified quality.
because a shipment was not of the specified quality. In McFadden v. Wetherbee, 63 Mich.
390, 29 N. W. 881, it was held that defects in wooden blocks, delivered under a continuing
contract, which were accepted and paid for, although complaint was made of their being
defective, will not authorize the rejection and nonacceptance of blocks thereafter to be
delivered under the contract, without a showing that the blocks so to be delivered were also
defective. In United States Iron Co. v. Sloss-Sheffield Co., 71 N. J. Law, 1, 58 Atl. 173, it was
said, obiter, that a single shortage in a delivery under a contract cannot be taken advantage of
by a purchaser as a ground for terminating the contract after acceptance of subsequent
shipments of the quantity called for by the contract. In Morgan v. McKee, 77 Pa. 228, it was
held that, where the vendor's failure to make one of the deliveries called for by the contract
gives the vendee the right to rescind, such right must be exercised without unreasonable
delay, and that, where notice of intention to rescind was not given until the next delivery was
due and tendered by the vendor, the delay was unreasonable, and should be construed as an
election to treat the contract as still subsisting. And in Scott v. Kittanning Coal Co., 89 Pa.
231, 33 Am. Rep. 753, it was held that, where a purchaser did not inform the vendor that he
would receive no more coal because previous deliveries were of an inferior quality, a failure
to give orders for delivery of the balance under the contract rendered the purchaser liable in
an action for damages for breach of contract.
Respondent has cited cases holding that whether there was a waiver is a question of fact
for the jury; but where the circumstances are admitted, or clearly established, waiver becomes
a question of law. (29 Am. & Eng. Ency. Law, 1108.)
In the brief, strong argument is made that the damages are excessive; but we do not
understand that the appellant is seriously objecting to the final calculations made by
respondent at the close of the argument, which show that the respondent sustained damage by
failure to have the ties delivered as provided in the contract and incidental loss to the
woodyards, which had been equipped for sawing and handling ties, at least to the amount
of the verdict.
the ties delivered as provided in the contract and incidental loss to the woodyards, which had
been equipped for sawing and handling ties, at least to the amount of the verdict. In these
calculations respondent charges for 108,345 ties which had been counted, and deducts and
allows the appellant 16,345 ties in platforms, buildings, bunkers, and sidings, and in addition
in one calculation allows appellant's claim of one-quarter of the remaining 92,000 ties as
being under the main track, and in another calculation allows to appellant 10 per cent of the
remaining 92,000 ties as being under the main track, according to the testimony of the
witness White.
In two respects these calculations are too liberal to appellant, for, as we have seen, the
appellant was entitled to retain only the narrow-gage ties which remained in the track, and the
contract did not reserve to the appellant any which were put in the platforms, buildings, or
bunkers after it was executed, and the respondent was entitled to these or to their value for
mining timbers and wood, less 18 cents, the price which he was to pay for them, and because
most of the ties allowed to the appellant as being under the track, according to the witness
White, or a large part of them in the estimate allowing one-quarter, as claimed by the
appellant, were in the sidings, which had already been allowed to the appellant once in the
deduction of 16,345 for the platforms, buildings, bunkers, and sidings. In this way the
appellant was allowed in the calculations the benefit, not only once, but twice, of a
considerable number of ties to which it was not entitled at all, and consequently the evidence
would support even a larger verdict. A discrepancy in the amount claimed by appellant for
ties delivered to Henningsen seems to arise from charging him with 36,337 ties, when he had
given the appellant credit for that number, but had charged back to the appellant 10,270 of
these as being received by the Tonopah Mining Company and never going to Henningsen.
Appellant is contending, on various grounds, that if any agreement was made, as testified
to by Henningsen, that after he went to the Tonopah Mining Company to sell ties, Tripp
told him that there had been a misunderstanding, that the mining company had placed an
order for ties before the signing of the contract, and that Henningsen and Tripp finally
agreed that ties which were taken to the mining company were to be delivered, and that
Henningsen was to be allowed 25 cents apiece, and that appellant had settled with him
for these at that price, it cannot be enforced.
that after he went to the Tonopah Mining Company to sell ties, Tripp told him that there had
been a misunderstanding, that the mining company had placed an order for ties before the
signing of the contract, and that Henningsen and Tripp finally agreed that ties which were
taken to the mining company were to be delivered, and that Henningsen was to be allowed 25
cents apiece, and that appellant had settled with him for these at that price, it cannot be
enforced. And appellant is also claiming that this agreement is so binding that the respondent
had no right to raise the price to 50 cents by serving the notice that he would charge that
amount for them after a specified date.
Respondent contends that no proper exception was taken in the district court in relation to
this agreement. The contentions of counsel in regard to it relate principally to the question,
which we have held need not be determined, as to whether Henningsen was owing the
company at the time it sought to have the contract forfeited. Under the circumstances, this
agreement was favorable to the appellant, for it reduces Henningsen's claim on the ties used
under it for timbers by the mining company to 25 cents, a net profit of 7 cents to him, when
the evidence indicates that these ties were worth 45 or 50 cents apiece, or that, if there had
been no agreement to deliver them to the mining company for 25 cents, they would have
yielded a profit of about 32 cents to Henningsen, if they had been delivered to him in
compliance with the original contract. If the agreement was effective, it related to ties which
had been ordered by the mining company, or were in course of delivery at the time it was
made, and to ties delivered to the mining company later, and before there was any notice of
an advance in price.
It does not appear that beyond these the agreement designated any further number of ties to
be delivered at that price to the mining company, so that Henningsen would have been
precluded from enforcing a charge of 50 cents after notice, if he were really damaged to that
extent. After the sale of the narrow-gage ties to Henningsen under the original contract, and
the making of the agreement between him and Tripp, if one was made, by which
Henningsen was to receive 25 cents for the ties which had been ordered by the mining
company, it was not incumbent on Henningsen to let the mining company have ties at
that price without limit as to time or number, when no definite number of period to cover
further orders from or deliveries to the mining company had been agreed upon.
ningsen under the original contract, and the making of the agreement between him and Tripp,
if one was made, by which Henningsen was to receive 25 cents for the ties which had been
ordered by the mining company, it was not incumbent on Henningsen to let the mining
company have ties at that price without limit as to time or number, when no definite number
or period to cover further orders from or deliveries to the mining company had been agreed
upon.
Exception is taken to several instructions, which need not be reviewed in detail, because
the controlling facts are admitted, and error in these, if any, could not have prejudiced the
appellant or changed the result. We consider only one, as being illustrative of the bearing
these instructions have. If it be conceded that, as claimed, it was error for the court to instruct
the jury that it was their duty to distrust, instead of that they were at liberty to distrust, the
entire evidence of any witness who had wilfully sworn falsely to any material matter, and that
the jury applied this instruction to the witness or testimony introduced on behalf of appellant,
this would not have resulted in a more favorable verdict to the company, when the material
facts are admitted, excepting possibly that one relating to the 25-cent contract, in regard to
which, if the jury did not believe the testimony of the appellant, their conclusion would be
less favorable to the appellant, because under the other admitted facts Henningsen would be
entitled to more, or about 50 cents apiece, less the contract price of 18 cents, for the ties used
by the mining company, or their value as mining timbers, instead of to the reduced amount of
25 cents, less 18 cents, according to the agreement to which he testified.
Under the views we have expressed, it is not necessary to determine whether the contract
is an executory one, as claimed. Nor need we consider whether Henningsen refused to make
payment for ties after demand, when he believed the appellant was owing him for the
construction of an auto house which had in fact been built by a separate company operating
on the appellant's track, for, by accepting belated payments and continuing to make
deliveries, the company had waived the right to cancel the contract without giving notice
that prompt payment would thereafter be exacted in accordance with its terms.
rate company operating on the appellant's track, for, by accepting belated payments and
continuing to make deliveries, the company had waived the right to cancel the contract
without giving notice that prompt payment would thereafter be exacted in accordance with its
terms.
The judgment of the district court is affirmed.
On Petition For Rehearinig
By the Court, Sweeney, C. J.:
The petition for rehearing in the within-entitled case is herewith denied.
Talbot, J., I concur.
Norcross, J., dissenting:
This case presents a number of serious and difficult questions of law. As some doubt
exists in my mind as to the correctness of the decision rendered, I favor a rehearing, and for
that reason dissent from the order denying the same.
____________
33 Nev. 267, 267 (1910) Murray v. Osborne
[No. 1842]
SUTHERLAND MURRAY and F. JACOBS, Respondents, v. CHARLES H. OSBORNE and
I. M. WILLIAMS, Appellants.
1. Appeal and ErrorPresumptionsFindingsSufficiency.
Findings necessary to support the judgment are presumed where findings are not made or requested.
2. Appeal and ErrorFindingsConclusiveness.
It is the exclusive province of the court, acting without a jury, to determine the facts on conflicting
evidence, and its finding sustained by any substantial evidence is conclusive on appeal.
3. TrialFindings of FactSufficiency.
On the issue whether a claimant to mining claims had performed the necessary discovery work, the
findings and opinion of the trial court showing facts on which the court could determine whether the
discovery work was sufficient were sufficient statements of facts.
4. Mines and MineralsDiscovery WorkSufficiency.
Under Comp. Laws, 209, as amended by Stats. 1901, c. 93, requiring the locator of a mining claim to sink
a discovery shaft thereon, and providing that a cut equivalent in size to a shaft ten feet deep, is equivalent
to a discovery shaft, and section 214, providing that relocation of abandoned claims shall be by sinking a
new discovery shaft, or the relocator may sink the discovery shaft ten feet deeper than it was at the time of
abandonment, etc., a locator of a mining claim on which an old tunnel had been run many years before,
who cleaned out the tunnel for a distance of about thirty feet, and who drove the tunnel ahead five or six
feet, and who thereby removed several times the quantity of earth or rock necessary to do work in new
ground for the construction of a shaft or cut equivalent to a shaft, performed the statutory discovery work.
County; J. P. O'Brien, Judge.
Action by Sutherland Murray and another against Charles H. Osborne and another. From a
judgment for plaintiffs, defendants appeal. Affirmed.
Statement of Facts
An understanding of the facts of the main issues involved and the conclusions of the trial
court may be obtained from the following extract from the opinion of the district judge:
obtained from the following extract from the opinion of the district judge:
This action was brought to recover possession of and to enjoin defendants from
trespassing upon the Juanita and Juanita No. 1 mining claims, situate in the old Spanish Belt,
in this county and state. The plaintiffs allege in their complaint that ever since May 5, 1906,
they have been the owners of and in possession of this ground, and that on or about
November 15, 1907, the defendants wrongfully entered upon the same and commenced
mining thereon, and extracting and removing therefrom quantities of gold and silver-bearing
quartz, and that they extracted ores therefrom of the value of $2,000. And the plaintiffs pray
that they be adjudged to be the owners and entitled to the possession of said premises, and
that the defendants be enjoined and restrained from extracting or removing any of the
minerals therefrom, and for damages in the sum of $5,000, and for general relief. The
defendants, by their answer, deny all of the allegations of the complaint, and affirmatively
allege that on or about September 5, 1907, they located the premises in controversy under the
name of the Combination mining claim,' and allege that they entered into possession thereof
under and by virtue of this location.
They also allege that whatever rights the plaintiffs may have had to the ground were lost
and forfeited through their failure to mark the boundaries, and to perform the requisite
amount of discovery work in accordance with the statute in that behalf. Practically all of the
testimony was directed to the failure of the plaintiffs to perform the discovery work upon the
Juanita claim, and there seems to be no doubt but that all of the acts of location were
performed upon the Juanita No. 1 mining claim. It will be unnecessary, therefore, to consider
in detail the sufficiency of the acts of location upon the Juanita No. 1 mining claim, and I will
therefore direct my observations entirely to the Juanita claim. The evidence shows without
conflict that an old tunnel was run upon the Juanita claim about forty years ago, but the
evidence does not disclose by whom this work was done, or whether the parties who did
it acquired any right or title to the ground or not.
the Juanita claim about forty years ago, but the evidence does not disclose by whom this work
was done, or whether the parties who did it acquired any right or title to the ground or not. A
number of witnesses were called by the plaintiffs who testified positively that the plaintiffs
performed the necessary amount of discovery work upon the Juanita claim, and that this work
consisted of cleaning out for a distance of about fifteen feet the approach to the old tunnel,
and of cleaning out the old tunnel for a distance of about thirty feet, and also of driving the
tunnel ahead; that is to say, extending the old tunnel a distance of five or six feet.
On the other hand, many witnesses were called on behalf of the defendants who testified
with equal positiveness that they had visited the ground prior to and subsequent to the
location of the Juanita claim, and that this work had not been done. It is perfectly obvious that
some of these witnesses must be mistaken, to say the least, because the testimony given by
the witnesses on one side cannot, upon any possible theory of reasoning, be reconciled with
that given by the witnesses for the other side. There is no inflexible rule by which the court
can be guided in determining the weight to be given to the testimony of any witness or set of
witnesses, and each case must of necessity be determined upon its own peculiar facts. There
are, however, in the present case many concomitant circumstances which appeal to the court,
and which assist it in some degree in reaching a conclusion.
In the first place, several witnesses testified that Tyndal Phipps and F. Jacobs located the
Juanita claim on May 5, 1906, and within the time required by law they marked the
boundaries and performed the requisite amount of discovery work, and did all the other acts
of location which the law requires. The evidence also shows without conflict that Sutherland
Murray purchased a half interest in the Juanita claim from Tyndal Phipps for $300, and that,
before completing the purchase, he visited the property and saw that the discovery work had
been done.
been done. Considerable testimony was introduced in behalf of the defendants which tends to
show that no work whatever was performed upon the Juanita claim; still I cannot say that this
testimony is of sufficient probative value to overcome the direct and positive testimony
introduced in behalf of the plaintiffs that the work was actually done. The evidence also
shows that the roof of the tunnel is caving ground, and that a portion of it caved after this
discovery work was done. It is possible, therefore, that after Phipps and Jacobs performed the
discovery work, as they testified they did, a part of the roof of the tunnel may have caved and
partly filled up the tunnel, and that the defendants' witnesses who visited the ground months
afterwards may have seen the tunnel partly filled up and concluded from this that no change
had been made in the tunnel, and that no work had been done therein. But, be that as it may, a
number of reputable and disinterested witnesses testified that the work was actually
performed, and this testimony established a prima facie case in favor of the plaintiffs, and the
testimony introduced in behalf of the defendants is not in my judgment sufficient to overcome
it.
In the next place, it is conceded that the plaintiffs were as between the parties to this
controversy the first to make a discovery and the first to initiate a right to the ground. The
Juanita claim was located nearly eighteen months before the defendants went upon the
premises or asserted any right thereto. The plaintiffs and their predecessors in interest, being
the first to make a discovery and the first to initiate a claim to the ground, have a superior
right to all others, unless they forfeited this right by their failure to comply with the law
governing the location of mining claims. The question of discovery is one of the essential
prerequisites to a right to mining ground, and the first discoverer is in all countries and at all
times entitled to a consideration and reward that is not accorded to those who go upon the
ground afterwards and seek to profit by his discovery. (Quotes from Lawson v. United
States Mining Company, 207 U. S. 13, 2S Sup. Ct. 19, 52 L. Ed. 65.)
from Lawson v. United States Mining Company, 207 U. S. 13, 28 Sup. Ct. 19, 52 L. Ed. 65.)
McIntosh & Cooke, for Appellants:
The court also erred in refusing to make defendants' demanded conclusion of law that such
work was insufficient under the law. (Sisson v. Sommers, 24 Nev. 379; Comp. Laws, 214;
Ingemarson v. Coffey, 92 Pac. 908; Armstrong v. Lower, 6 Colo. 393; Little Gunnel M. Co. v.
Kimber, 1 Mor. Mg. R. 5; 1 Lindley on Mines, 344, and cases cited; Stats. 1907, p. 418, 419.)
The six feet of new work claimed by plaintiffs to have been done in the old tunnel is
clearly insufficient. Conceding they did this six feet, they claim further that they cleaned out
old tunnel by moving approximately 1,000 cubic feet of dirt, debris, etc., from the old tunnel.
This dirt was caved matter fallen in from roof and sides of tunnel and lay on floor of tunnel.
The contention that cleaning out loose dirt, debris, etc., out of old tunnel can be considered as
location or discovery work, either in full or in part, is unfounded in law and fallacious in
reason. If such cleaning out is good as discovery work, then drawing ten feet of water from
bottom of old shaft would be equally so, or cleaning out ten feet of mud or slime, or, if old
shaft was filled ten feet with straw or manure, cleaning that out would be good discovery
work, and in none of which cases would there be a single inch of new work and absolutely no
development of mineral resources, and viciously violative of both letter and spirit of whole
body of mining legislation, both state and federal, which aims to obtain reasonable
development of mineral resources, and to compel discoverer and claimant to manifest his
good faith. (1 Lindley on Mines, 344; Butte Con. M. Co. v. Barker, 89 Pac. 302, 90 Pac. 177.)
The failure of plaintiffs to do the full ten feet of new work was a violation of the statute
and no legal location of the alleged Juanita was ever effected by them. (Mallett v. Uncle Sam
Co., 1 Nev. 188; Oreamuno v. Uncle Sam Co.,
Sam Co., 1 Nev. 215; Comp. Laws, 214; Stats. 1907, p. 419; Butte M. Co. v. Barker, 89 Pac.
302, 90 Pac. 177.)
The point that, because plaintiffs did not in their notice or certificate of location designate
the Juanita as a relocation or refer to ground as abandoned ground, therefore section 214 is
inapplicable, cannot be maintained, because plaintiffs, by electing to do their location work in
the old workings and so obtain for themselves the benefit of that old work, have brought
themselves within the purview of the statute requiring the old workings to be extended at
least ten feet further than it was at the time of their location, and therefore the five or six feet
of new work done as claimed by plaintiffs is insufficient in law. On the general point herein
discussed, we cite Erhart v. Boara, 113 U. S. 527; Barr. & A. on Mines, 300; Nash v.
McNamara, 30 Nev. 114.
The so-called findings of fact made by the court herein are naked conclusions of law.
Defendants seasonably asked to have them corrected in lower court and court refused, and we
have a right to a reversal upon this ground. (Langworthy v. Coleman, 18 Nev. 440; Booth v.
Bank, 98 Pac. 509; Anthony v. Jillson, 23 Pac. 419, and cases cited.)
The alleged findings do not cover all the material issues in the case. In such case the
judgment based thereon is a decision against law which can be successfully assailed on
motion for new trial, or on appeal from order denying a new trial. (Urlamb v. McMahon, 97
Pac. 784; Aydelotte v. Billing, 97 Pac. 698; Knight v. Roche, 90 Cal. 163; Kaiser v. Datto,
140 Cal. 167; Kusel v. Kusel, 147 Cal. 52.)
Bartlett, Thatcher & Gibbons and J. A. Sanders, for Respondents:
Appellants make the statement that Juanita was a relocation of an abandoned lode, and that
the court erred in not making a demanded finding to that effect. To this we cannot agree.
There is not a scintilla of evidence in the record to show that the Juanita was formerely held
as a mining location, the only evidence in connection therewith being that there were
some old tunnels upon the ground.
merly held as a mining location, the only evidence in connection therewith being that there
were some old tunnels upon the ground.
A relocation presumes a prior valid location, which has become forfeited or abandoned.
(Zerres v. Vanina, 134 Fed. 610.) And there is no evidence of a valid or even of an attempted
location of the ground. Counsel cited in support thereof section 214 of Compiled Laws, but
the last sentence of that act particularly states If it is not known to the relocator that his
location is on an abandoned claim, then the provisions of this section do not apply. And
there is no evidence in the record to show that the relocators of the Juanita knew that the
ground was abandoned ground.
This brings us to the contention of counsel for the appellants, and the one most seriously
urged by them, that the discovery work was insufficient. It is found by the lower court and
admitted by appellants (at least for the purposes of this argument) that the work consisted in
cleaning out: (1) Approach and cut of the old tunnel for a distance of fifteen feet; (2)
Cleaning out the old tunnel itself for a distance of about thirty feet; (3) Running the tunnel
ahead, new work, six feet; (4) That the tunnel crosscut the ledge, and at its face as extended
exposed the vein at a depth of twenty-five feet below the surface; that in all about 1,000 cubic
feet of earth was removed. Appellants have cited numerous cases to support their contention
that such work was insufficient as discovery work, and likewise counsel cited Stats. 1907, p.
419, and an examination of appellants' authorities discloses the fact that they have about the
same amount of bearing upon the case as has reference to Stats. 1907. The Juanita claim
having been located in 1906, Stats. 1907 with reference to discovery work cannot affect the
Juanita location.
The purpose of location work, as stated in Butte Con. M. Co. v. Barker, 89 Pac. 303, is
the requirements that a shaft be sunk upon the claim ten feet or deeper, if necessary to
disclose a well-defined crevice or valuable deposit, or the doing of the work which is
declared to be equivalent, has a double purpose in view: {1) To demonstrate to a
reasonable degree of certainty that the deposit sought to be located is in fact a vein of
quartz or other rock in place; {2) To compel the discoverer to manifest his intention to
claim the ground in good faith under the mining laws."
or the doing of the work which is declared to be equivalent, has a double purpose in view: (1)
To demonstrate to a reasonable degree of certainty that the deposit sought to be located is in
fact a vein of quartz or other rock in place; (2) To compel the discoverer to manifest his
intention to claim the ground in good faith under the mining laws.
And respondents respectfully submit that they have met both of the requirements laid
down under that rule. Appellants' cut on the Juanita cut the vein at depth of more than
twenty-five feet, and certainly respondents by excavating and removing 1,000 cubic feet of
earth and debris from the tunnel have met the requirements of good faith. Appellants contend
that no part of the work done in the old cut or tunnel can be counted except the six feet of
new work, and that that is insufficient. To this we cannot subscribe, but admitting for the
purpose of this argument that only the six feet of new work count as discovery work, we still
contend that that would be all that would be necessary, to wit: the driving of the tunnel six
feet and disclosing the vein at a depth of twenty-five feet, and we believe that a comparison
of the various statutes of Nevada defining discovery work cannot but lead to the same
conclusion.
By the act of 1897 (Comp. Laws, 209) no particular dimensions were required, except that
in case the discovery work was a shaft it must be ten feet deep; in the case of crosscut or
tunnel it must cut the ledge at a depth of ten feet; and in case of an open cut it must expose
the ledge along its course or strike a distance of ten feet. By the act of 1901 (Stats. 1901, p.
97) the act of 1897 was amended, but only with reference to the dimensions of the open cut,
which were given the specific requirement of being equivalent to a shaft 4x9x10, but no
additional requirements were made in the case of a shaft or crosscut or tunnel. By the act of
1907 the act was again amended, and this time required particular dimensions of the shaft,
that it be 4x6 and 10 feet deep; that the open cut be equivalent to a shaft 4x6 and 10 feet
deep, but made no change and prescribed no further condition with reference to tunnels
and crosscuts, the only requirements being, as under the previous acts, that it cut the vein
at a depth of ten feet, clearly showing that the main purpose of the legislature in
prescribing the character of discovery work was to require the opening of the vein to a
depth of ten feet, and for the reason that such development is necessary to determine
whether the discovery is or is not a vein or lode.
feet deep, but made no change and prescribed no further condition with reference to tunnels
and crosscuts, the only requirements being, as under the previous acts, that it cut the vein at a
depth of ten feet, clearly showing that the main purpose of the legislature in prescribing the
character of discovery work was to require the opening of the vein to a depth of ten feet, and
for the reason that such development is necessary to determine whether the discovery is or is
not a vein or lode.
As to what has been construed by the courts to be sufficient discovery work we refer this
court to Brewster v. Shoemaker, 63 Pac. 309; Gray v. Truby, 6 Colo. 278; Development Co.
v. Van Auken, 9 Colo. 204.
Both Phipps and Jacobs testified that they discovered the ledge on the Juanita about the 1st
of May, 1906, and that they discovered mineral-bearing rock in the ledge, both on the surface
and where exposed in the old tunnel, and this is corroborated by the fact that defendants'
discovery was made upon the same ledge and in the discovery tunnel of the plaintiffs
(testimony of Osborne); and the notices of location of both the Juanita and the Combination
were posted at or near the same ledge and within thirty feet of one another, according to the
testimony of Williams and Osborne. This being the admitted fact, there can be no question as
to the plaintiffs' discovery. (Fox v. Meyers, 86 Pac. 793.)
By the Court, Talbot, J. (after referring as above to the recited part of the opinion of the
district judge):
On behalf of appellant, it is urged that the evidence does not support the findings or
judgment, which was rendered in favor of respondents and plaintiffs; that the court erred in
refusing to make certain specific findings of fact submitted and requested by appellant in lieu
of the findings of the court which were mere conclusions of law; that the Juanita notice was
defective because it did not refer to that claim as a relocation of the ground; and that, under
the plaintiffs' own testimony, they cannot maintain the location of their mining claims, and
are not entitled to judgment because they failed to do the amount of location work
required by the statute in new ground in addition to the removal by them of dirt which
had caved in the old cut and tunnel where the work according to plaintiffs' witnesses was
performed.
not entitled to judgment because they failed to do the amount of location work required by the
statute in new ground in addition to the removal by them of dirt which had caved in the old
cut and tunnel where the work according to plaintiffs' witnesses was performed.
Particular objection on the ground that it is a conclusion of law is made to finding No. 1,
that on the 5th day of May, 1908, plaintiffs by or through their grantors and predecessors in
interest were, and ever since have been, the owners in possession and entitled to possession of
the Juanita and Juanita No. 1 mining claims. It is clear from the allegations, proofs, other
findings, and judge's opinion that the use of the figure 8 was a clerical mistake, and that the
year 1906 was intended. If this finding stood alone, appellants, upon request and petition
within five days after the rendering of the judgment, as was done, would have been entitled to
a finding detailing the facts regarding the posting of notices, the marking of boundaries, and
the doing of the location work upon the claims. After referring to these locations as having
been made by the locators on May 5, 1906, it is stated in finding No. 10: That said locations
Juanita and Juanita No. 1 were and each of them was made and perfected as by law required.
That notices of said claims, to wit, Juanita and Juanita No. 1, were posted on the ground
located. That the discovery work required by law was done upon said locations, to wit,
Juanita and Juanita No. 1, within the time required by law by the locators of said claims. That
each of said claims, to wit, Juanita and Juanita No. 1, was monumented, and the boundaries
thereof defined by monuments within the time required by law therefor.
Appellants say that it is important to them to have a finding showing the amount of new
work, the number of feet, and the place where it was done, for they are proceeding on the
theory that ten linear feet of new work was not performed in the tunnel by the plaintiffs, and
that new work to this extent was necessary to perfect the plaintiffs' location. Taking the
statement in the findings quoted and the one in the opinion of the district judge that the
cut at the entrance to the tunnel for a distance of about fifteen feet and the tunnel for a
length of about thirty feet had been cleared of dirt which had caved until it was about as
high as the tunnel in places, and that the tunnel had been extended five or six feet, it is
clear that the district judge concluded that the tunnel had been extended only five or six
linear feet, and that this extension, in addition to the removal of the earth which had
caved in the cut and tunnel for a distance of about forty-five feet, was sufficient location
work on the Juanita.
findings quoted and the one in the opinion of the district judge that the cut at the entrance to
the tunnel for a distance of about fifteen feet and the tunnel for a length of about thirty feet
had been cleared of dirt which had caved until it was about as high as the tunnel in places,
and that the tunnel had been extended five or six feet, it is clear that the district judge
concluded that the tunnel had been extended only five or six linear feet, and that this
extension, in addition to the removal of the earth which had caved in the cut and tunnel for a
distance of about forty-five feet, was sufficient location work on the Juanita. Under our
practice, when findings are not made or requested, any findings necessary to support the
judgment are presumed. In view of the position taken by the appellants, it is important here to
have a finding, or have it appear, that the amount of work required by the statute had not been
done in new ground. But as it is apparent to this court from the other findings and the opinion
of the district judge that he acted on the theory that the work had not been so done, this court
is in a position to determine whether as a matter of law the failure to do all the work on new
ground would forfeit the claim as fully as if such a finding had been made, and consequently
no injury results to the appellants. As between the testimony of the witnesses for the plaintiff
that the cut and tunnel had been cleared out and the tunnel extended five or six feet, and the
testimony of numerous witnesses for the defense that they had been on the ground before and
after the time that this work was claimed to have been done, and that it had not been
performed, and that the caved earth and growing sagebrush remained in the cut and tunnel, it
was the exclusive province of the district court, acting without a jury, to determine.
Considering the sharp conflict in the testimony, statements in the opinion, and the time the
case was held under advisement, it would seem that the court did not arrive at a conclusion
regarding the facts without some difficulty and doubt.
As often held, we cannot disturb the findings of the district court when they are
sustained by any substantial evidence.
district court when they are sustained by any substantial evidence. (State v. Buralli, 27 Nev.
56.) As it appears from the opinion of the district judge that the tunnel was extended only five
or six feet by the plaintiffs, and there is no evidence to indicate that it was extended further,
was such extension in addition to the cleaning out of the cut for fifteen feet and of the tunnel
for thirty feet, as determined by the trial judge under the conflicting testimony, sufficient
location work to meet the requirements of the statute in force at the time the Juanitas were
located? Section 209, Comp. Laws, as amended in 1901 (p. 97, c. 93), directs: Before the
expiration of ninety days from the posting of such notice upon the claim the locator must sink
a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part
of the rim of such shaft at the surface, or deeper if necessary to show by such work a lode
deposit of mineral in place. A cut or crosscut, or tunnel, which cuts the lode at a depth of ten
feet, or an open cut along the ledge or lode equivalent in size to a shaft four feet by six feet by
ten feet deep, is equivalent to a discovery shaft.
Section 214 provides: The relocation of abandoned lode claims shall be by sinking a new
discovery shaft and fixing new boundaries in the same manner as if it were the location of a
new claim; or the relocator may sink the original discovery shaft ten feet deeper than it was at
the time of abandonment, in which case the record must give the depth and dimensions of the
original discovery shaft at the date of such relocation, and erect new or adopt the old
boundaries, renewing the posts or monuments if removed or destroyed. In either case a new
location stake shall be erected. In any case, whether the whole or part of an abandoned claim
is taken, the record may state that the whole or any part of the new location is located as
abandoned property. If it is not known to the relocator that his location is on an abandoned
claim, then the provisions of this section do not apply.
It is argued for appellants that, if the extension of the tunnel for less than ten linear feet
was sufficient to make a location good, the amount of earth required to be removed could be
reduced to one shovelful. But, if it be conceded that the extension of the tunnel for a distance
of six feet would not be sufficient, it remains for us to determine whether plaintiffs were
entitled to credit for removing the caved dirt from the cut and tunnel which, according to the
evidence, may have been made thirty or forty years previously, and possibly before the laws
now controlling the location of mining claims were in force. If, after such a long period, the
earth which had been caved and packed may not be considered in the nature of new ground,
still if the locators removed several times the quantity of earth or rock defined by the statute
and more than the equivalent of the labor necessary to do work in new ground, and this work
was done in connection with the extension of the tunnel on the ledge and apparently all to the
best advantage for the development of the mine and in good faith, we believe that was
sufficient.
The extension of the tunnel for five or six feet amounted to one-half or more of the 240
cubic feet of earth required by the statute to be excavated, and if, as testified by witnesses for
the plaintiff, about 1,000 cubic feet was taken out of the tunnel, this necessarily resulted in
the removal by the plaintiffs of several times the quantity of earth required to be excavated in
new ground and apparently more than the equivalent of the work which would have been
required if it had been in new ground, and this work, including the extension of the tunnel,
was as much or more for the benefit of the claim, and was a compliance with both the letter
and the spirit of the statute.
There is no evidence indicating whether any location had been made, noticed, or staked on
the ground at the time the tunnel was first constructed, and it does not appear that the locators
of the Juanitas knew that the ground had been covered by an abandoned claim, or that they
were aware of monuments or boundaries which would have made it possible for them to
describe a part or all of the ground as being abandoned.
would have made it possible for them to describe a part or all of the ground as being
abandoned. Under these circumstances, and under the provision in section 214, Comp. Laws,
that in any case where the whole or part of an abandoned claim is taken the record may state
that all or part of the new location is on abandoned property, and, if it is not known to the
locators that the location is on an abandoned claim, the provisions of that section do not
apply, the certificate was not defective for failing to state that the location was made on
abandoned ground. It has been held that such a statement acts as an estoppel, and prevents the
locator making it from denying that the abandoned location had been properly made.
Ordinarily forfeitures are not favored, and a very strict or severe construction ought not to be
placed on the statute when the prior locators have proceeded in good faith and apparently
have done all that is required by a fair construction of the laws relating to mining locations.
We acknowledge that the carefully prepared and indexed brief of appellants, giving
correctly the purport of the conflicting testimony of the various witnesses, with reference to
the numbers in the 1100-page transcript, has saved time and been of material assistance to the
court.
____________
33 Nev. 281, 281 (1910) Allen v. Ingalls
[No. 1866]
L. W. ALLEN, Respondent, v. W. A. INGALLS, as Sheriff of Esmeralda County, Appellant.
1. Sheriffs and ConstablesAttachment of PropertyCare of PropertyDuty of Deputy.
Where a sheriff gave to his deputy an attachment to execute, without saying anything as to the
employment of a keeper, and the writ could not be executed without taking possession of personal
property, the deputy, empowered by Comp. Laws, 2242, to perform the duties devolving on the sheriff,
could employ, if necessary, a keeper of the attached property.
2. Sheriffs and ConstablesAttachment of PropertyCare of PropertyDuty of Deputy.
A deputy, received from the sheriff a writ of attachment to execute, remained in charge of the personal
property attached for a time, and then employed a third person as keeper, and notified the sheriff, who
expressed approval. The attached property thereafter remained in the possession of the third person with
the sheriff's knowledge, and was finally delivered by the third person to another on the sheriff's order. Held,
that the sheriff ratified the deputy's employment of the third person as keeper, and was liable for the third
person's services, if such ratification was necessary to bind him.
3. AttachmentProtection of PropertyEmployment of KeepersLiability.
A keeper of attached property must ordinarily look to the sheriff attaching the property for his
compensation, and in the absence of an express agreement with the plaintiff in the action he cannot recover
from him.
A settlement by a sheriff with his deputy for services as keeper of attached property, made without the
knowledge of a third person employed by the deputy as keeper, is not binding on the third person, and does
not preclude him from suing the sheriff for his services.
Where a sheriff, in possession through a keeper of attached property, remained in possession after the
debtor was adjudged a bankrupt, without notifying the keeper of any change in the status of the property,
the keeper could recover from the sheriff for his services after the adjudication, though the sheriff
thereafter was a mere bailee for the trustee in bankruptcy.
6. AttachmentCare of Property AttachedLiability.
A sheriff, incurring expenses in preserving attached property, may recover from plaintiff in attachment or
from the trustee in bankruptcy of the debtor, adjudged a bankrupt after the attachment, and he must look to
one or both for reimbursement.
7. Appeal and ErrorQuestions ReviewableQuestions Not Raised in Trial Court.
The supreme court, on appeal, will not consider questions, not jurisdictional, raised for the first time on
appeal.
ON PETITION FOR REHEARING
1. Appeal and ErrorPresumptionsTime of Filing Petition.
The presumption, if any, as to time of filing the petition in bankruptcy, is that it was filed on the day of
the adjudication of bankruptcy; the act of July 1, 1898, c. 541, 30 Stats. 551 (U. S. Comp. St. 1901, p.
3429), requiring no notice of the hearing, but contemplating a hearing forthwith and an adjudication or a
dismissal of the petition.
2. BankruptcyAttachment LiensDissolution by Adjudication.
Under the bankruptcy act of July 1, 1898, c. 541, 30 Stats. 565 (U. S. Comp. St. 1901, pp. 3422, 3450),
only the attachment liens obtained within four months of the filing of the petition in bankruptcy are
dissolved by the adjudication in bankruptcy.
Appeal from the District Court of the Seventh Judicial District of the State of Nevada,
Esmeralda County; Theron Stevens, Judge.
Action by L. W. Allen against W. A. Ingalls, as Sheriff of Esmeralda County. From a
judgment for plaintiff, defendant appeals. Affirmed. Petition for rehearing. Denied.
Thompson, Morehouse & Thompson, for Appellant.
Detch & Carney, for Respondent.
By the Court, Norcross, C. J.
This is an action to recover a claim in the sum of $1,055 for services as keeper of certain
attached property, levied upon by the appellant in a certain action instituted in the First (now
Seventh) Judicial District Court in and for Esmeralda County, wherein Wood, Curtis & Co.
were plaintiffs and J. W. Tracy was defendant. From a judgment for the plaintiff, respondent
herein, for the full amount sued for, and from an order denying a motion for a new trial, the
defendant has appealed.
The trial court found as facts that on the 23d day of March, 1908, in the case above
mentioned, a writ of attachment was duly issued and placed in the hands of said sheriff for
execution; that under and by virtue of said writ, on or about the 24th day of March, 1908, he
took into his possession a certain store building, stock of merchandise therein, and certain
other property, situate in the town of Lida, in said county; that at the special instance and
request of the said defendant sheriff, made by himself and his agents, duly authorized, one E.
D. Allen performed labor and rendered services as custodian of the property, attached as
aforesaid, from the 16th day of April, 1908, to and including the 12th day of November,
1908, for which said services and labor the defendant agreed to pay the reasonable value
thereof; that said services were reasonably worth the sum of $5 per day, or the aggregate sum
of $1,055; that prior to the commencement of the action the said claim for services was, for
value, assigned to the plaintiff. From these findings of fact the court found as a conclusion of
law that the defendant was indebted to the plaintiff in the sum mentioned, and that he was
entitled to judgment accordingly.
The proofs showed that when the writ of attachment was issued the defendant gave the
same to one of his deputies residing in Lida, and that this deputy made the levy and for
twenty days retained the attached property in his charge. On April 16, 1908, the deputy placed
the said E. D. Allen in charge thereof, as custodian or keeper, who remained in possession
thereof until the 12th day of November, when upon the written order of the defendant he
turned the property over to one W. E. Clark, trustee of the estate of J. W. Tracy, bankrupt; the
said J. W. Tracy having been duly adjudged a bankruptcy by the Unites States District Court
at Carson on the 28th day of July, 1908, and the said W. E. Clark having by said court been
duly appointed trustee thereof on the 9th day of October, 1908.
It is the contention of appellant that the plaintiff was not entitled to recover for the
following reasons: (1) That a deputy sheriff, without being specially authorized, cannot
employ and contract for a keeper of attached property, so as to bind the sheriff.
That a deputy sheriff, without being specially authorized, cannot employ and contract for a
keeper of attached property, so as to bind the sheriff. (2) Because the sheriff settled in full
with his deputy for keeper's fees to September 10, 1908. The further contention is made that,
if the sheriff is liable at all to the keeper employed by the deputy sheriff, such liability would
not exist after the 28th day of July, 1908, the day the said J. W. Tracy was adjudged a
bankrupt.
We think the sheriff was bound by the acts of his deputy in the employment of the keeper.
The deputy, by virtue of his deputyship, was authorized to employ, if necessary, a keeper for
the attached property. Without determining to what extent a sheriff may be bound by the
contracts of his deputy in matters of this kind, it is sufficient, for the purposes of this case, to
base the sheriff's responsibility for the employment of the keeper upon the doctrine of
ratification. The testimony is to the effect that the sheriff gave the writ of attachment to his
deputy to execute the writ, without anything being said whatever regarding the employment
of a keeper. The writ could not be executed without taking the personal property into the
possession of the sheriff as commanded by the statute. The personal property attached,
comprising a stock of merchandise, some lumber, hay, etc., it was necessary that there should
be a custodian.
Unquestionably the deputy had power to do whatever was necessary to protect the property
under the attachment, and if he had failed so to do the sheriff would have been responsible for
any loss by reason of neglect. The deputy remained in charge of the property himself for
about twenty days, when, having determined to leave the town of Lida, he placed the attached
property in the care of Allen. Upon the same day the deputy testified he notified the sheriff of
what he had done, and the sheriff expressed approval of his act. The attached property
thereafter remained in the possession of Allen for several months with defendant's
knowledge, and was finally delivered by Allen to the trustee in bankruptcy upon
defendant's order to him.
finally delivered by Allen to the trustee in bankruptcy upon defendant's order to him. This
was a ratification of the deputy's employment of Allen, if such ratification was necessary.
Comp. Laws, 2242, provides: Each sheriff shall have power to appoint, in writing, signed
by him, one or more deputies, who are hereby empowered to perform all the duties devolving
on the sheriff of the county; and the sheriff shall be responsible for all the acts of his deputy
or deputies. * * * The sheriff may also require of his deputies such bonds as to him shall
seem proper.
The rule governing the responsibility of the sheriff to the custodian of attached property is
stated in Cyc. as follows: Ordinarily, when the sheriff appoints a custodian to keep and care
for the attached property, he is liable, either under his express contract or for a reasonable
compensation, and the custodian cannot look to plaintiff in the action, and in such an action
against the officer it is no defense that he has no claim against another for the performance of
such services. (4 Cyc. p. 722.)
See, also, Chenowith v. Cameron, 4 Idaho, 515, 42 Pac. 503; Rowley v. Painter, 69 Iowa,
432, 29 N. W. 401; Hurd v. Ladner, 110 Iowa, 263, 81 N. W. 470; Lawrenson v. McDonald,
9 S. D. 440, 69 N. W. 586; Stowe v. Butterick, 125 Mass. 449; Jones v. Thomas, 14 Ind. 474;
Edinger v. Thomas, 9 Colo. App. 151, 47 Pac. 847.
The rules governing the right of the sheriff to recover from the plaintiff in attachment suits
are not controlling in cases of this kind. The sheriff may protect himself against possibility of
loss on account of his necessary disbursements; but he cannot set up any failure upon his part
to take proper precautions as a defense to an action by his employee. It is well settled that the
keeper, in the absence of some express agreement with the plaintiff in the action, cannot
recover the value of his services from such plaintiff. Ordinarily, the keeper looks to the sheriff
for his compensation, and the sheriff to the plaintiff for his fees and disbursements. In the
absence of some agreement to the contrary, it is no concern of the keeper whether the
sheriff is paid or reimbursed by the plaintiff for the keeper's charges.
agreement to the contrary, it is no concern of the keeper whether the sheriff is paid or
reimbursed by the plaintiff for the keeper's charges.
There was some evidence offered by the defendant sheriff of a settlement with his deputy
for services of the latter as keeper to September 10, 1908. The amount paid the deputy was
comparatively trifling, and was less than the proven value of his services for the time the
property was in his care. That such a settlement, made without the knowledge of Allen, would
not be binding on the latter, requires no comment.
The contention that, because the adjudication in bankruptcy operated to dissolve the
attachment, therefore the plaintiff cannot recover from defendant for services as keeper after
July 28, 1908, we think without merit. It is not contended that the defendant sheriff notified
the keeper of any change in the status of the property, or that he would not, for that or any
other reason, be liable further for his compensation as custodian. It may be that the defendant
no longer could claim to hold the property as sheriff under the attachment, but rather as bailee
for the trustee in bankruptcy; but if he continued to hold it in the latter capacity that situation
would not operate of itself, we think, to change the contractual relations existing between
himself and the person he had placed in charge as keeper. The defendant had a right to
demand and recover his expenses incurred in preserving the property either from the plaintiff
in the attachment suit or partly from such plaintiff and partly from the trustee in bankruptcy,
and he was bound to look to one or both of them for reimbursement.
Counsel for appellant has raised the further question that the contract with the keeper
would be void, because the latter was at the time justice of the peace of Lida township.
While, in the absence of examination, this contention does not impress as containing possible
merit, we are not called upon to investigate and determine it, for the reason it is raised for the
first time upon appeal. This court has frequently determined that it will not consider
questions, not jurisdictional, raised for the first time on appeal.
sider questions, not jurisdictional, raised for the first time on appeal.
On Petition for Rehearing
By the Court, Norcross, J.:
Counsel for appellant have filed a petition for a rehearing, basing their contention for the
same upon the ground that we erred in allowing any recovery against the appellant as sheriff
for the services of the keeper of the attached property after the defendant in the attachment
suit was adjudicated a bankrupt. A very careful review of our former decision not only
convinces us that it is free from legal error, but a further examination of the facts disclosed by
the record relative to the adjudication in bankruptcy convinces us that the assumption that
such adjudication operated to dissolve the attachment is erroneous. It was stipulated by
respective counsel in the case that on the 28th day of July, 1908, in the voluntary
proceedings in bankruptcy in the District Court of the United States for the State of Nevada,
he, said J. W. Tracy, was duly adjudicated a bankrupt.
There is nothing in the record showing when the petition in bankruptcy was filed, and, if
there is any presumption to be indulged in, it is that the petition was filed upon the day of the
adjudication, for the statute requires no notice of the hearing, but, upon the contrary,
contemplates a hearing forthwith and an adjudication or a dismissal of the petition. The
statute reads: Upon the filing of a voluntary petition the judge shall hear the petition and
make the adjudication or dismiss the petition. If the judge is absent from the district, or the
division of the district in which the petition is filed at the time of the filing, the clerk shall
forthwith refer the case to the referee. (30 U. S. Stat. 551; vol. 1, Fed. Stat. Ann. 585 (U. S.
Comp. St. 1901, p. 3429); 5 Cyc. 300.)
The writ of attachment in the case of Wood, Curtis & Co. v. J. W. Tracy was issued March
23, 1908, and the levy was made not later than March 26th; hence more than four months
had elapsed from the time the lien attached before the petition in bankruptcy is shown to
have been filed.
four months had elapsed from the time the lien attached before the petition in bankruptcy is
shown to have been filed. Only attachment liens which have applied within four months of
the date of the filing of the petition in bankruptcy are dissolved by the adjudication in
bankruptcy. (30 U. S. Stat. 565; vol. 1, Fed. Stat. Ann. 542, 693 (U. S. Comp. St. 1901, pp.
3422, 3450); In re Ferguson (D. C.) 95 Fed. 429; In re Westlund (D. C.) 99 Fed. 399; Bear v.
Chase, 99 Fed. 920, 40 C. C. A. 182.)
So far as the record in this case shows, the appellant was in the legal possession of the
attached property from the date of the levy until the possession was surrendered to the trustee
in bankruptcy.
The petition for a rehearing is denied.
____________
33 Nev. 288, 288 (1910) Small v. Robbins
[No. 1867]
FRED L. SMALL, GEORGE LIKENS and CHARLES H. RULISON, Appellants, v. IDA
ROBBINS, Respondent.
1. BoundariesDivision LineEstablishment by Agreement.
Where a dividing line was established between the property of plaintiffs and defendant by the act of
one through whom plaintiffs deraigned title and was acquiesced in by defendant, in accordance with
which they or their grantees occupied their respective lands for a time in excess of that prescribed by
limitations, and, immediately upon the establishment of such line, defendant made valuable
improvements with reference thereto, with the knowledge of the one who established the line, he and his
successors in interest would be estopped from questioning its correctness, notwithstanding the rule that
when the intent is to establish the line according to the true boundary, and by mistake the parties agree on
a line which does not conform thereto, the agreed line is not conclusive.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; John S. Orr, Judge.
Action by Fred L. Small and others against Ida Robbins. Judgment for defendant, and
plaintiffs appeal. Affirmed. On petition for rehearing, rehearing granted, but former opinion
affirmed by Sweeney, C. J., Talbot, J., concurring, Norcross, J.,
but former opinion affirmed by Sweeney, C. J., Talbot, J., concurring, Norcross, J.,
dissenting.
Cheney, Massey & Price, for Appellants:
The respondent has no prescriptive title. On the trial of the case there was set up the
adverse possession of the land in controversy by the defendant and her title thereto by
prescription. It is elementary that possession by consent is not adverse, and no prescriptive
title can arise under such conditions. If Ida Robbins occupied this land under the agreement it
was not adverse, but by consent and agreement, because consent is agreement.
But for a further reason there is and can be no merit, as a matter of law, in any claim of
adverse possession, and such claim may as well be eliminated now.
Our statute provides in express and mandatory terms that in no case shall adverse
possession be considered as established unless it be shown in every action for the recovery of
real property that the land has not only been occupied and claimed for the period
continuously, but that the party so claiming, and his predecessors and grantors have paid all
taxes, state, county and municipal, which may have been levied and assessed against said land
for the period mentioned. The evidence that Ida Robbins never paid any taxes assessed
against the land in controversy is not disputed. That the plaintiffs and their grantor, Martin,
always paid these taxes is also not disputed. Martin testified that he paid the taxes on lots
Nos. 48 and 52 until he sold them. The exhibits show that the subsequent taxes on lot 48 were
paid by appellants. (Comp. Laws, 3709.)
The language of the section cited above is mandatory and was incorporated into the law of
this state in 1887. It follows the provision of the California statute as amended in 1878, and
that statute has frequently been before the supreme court for construction, and in each
instance the court has held that where taxes had been levied against the property the
party relying upon a prescriptive title must show that he had paid such taxes.
instance the court has held that where taxes had been levied against the property the party
relying upon a prescriptive title must show that he had paid such taxes. (O'Connor v. Fogle,
63 Cal. 9; C. P. R. Co. v. Shackelford, 63 Cal. 261; Webb v. Clark, 65 Cal. 56; Martin v.
Ward, 69 Cal. 129; McNoble v. Justiniano, 70 Cal. 395; Brown v. Clark, 89 Cal. 196;
Frederick v. Dickey, 91 Cal. 358; Standard Quicksilver Co. v. Habishaw, 132 Cal. 115; Allen
v. McKay & Co., 139 Cal. 94; Willard v. Clark, 80 Cal. 605.)
Other states under the statutory rule have held to the same effect.
It will be well to note in this connection that any claim of adverse possession in connection
with the subsequent claim of the defendant, upon the agreement and contract with Martin
fixing the boundary, is also without foundation under this statute, and we dismiss this feature
from further consideration at this time.
The agreement did not fix the boundary against appellants.
The decision of the court upon the contention made was to the effect that Robbins and
Martin having entered into an agreement fixing the boundary between lots No. 47 and 48, and
said agreement having been acted upon and acquiesced, as a matter of law the agreed
boundary is the boundary between said lots and the possession of the defendant is lawful. The
above statement is not based, first, upon the true facts of the case and, second, based upon the
true facts it is not the law.
There are innumerable authorities holding that, where a disputed boundary line is fixed by
agreement of the parties and acted upon, such line so fixed and agreed upon becomes the true
boundary line. But this is not this case. There was no disputed boundary line in this case. Ida
Robbins did not know where any of the boundaries of lot 48 was at the time of the alleged
agreement, so there was nothing for her to dispute. C. S. Martin, as he thought, did know
where the true boundary line was and set stakes upon what he thought and believed to be the
true boundary line and what Ida Robbins had no reason to say was not the true boundary
line.
reason to say was not the true boundary line. A mistake was made as to where the true
boundary line was by these parties. That is the evidence in a nutshell. They did not settle any
disputed boundary line because no such line was in dispute. They only undertook to establish
the line where each supposed it actually was, but which proved to be a mistake. Under these
facts the rule of law is not as found by the court, and as will be stated by counsel.
The true rule is that an agreement between adjoining owners establishing a disputed
boundary line is generally conclusive upon them and persons claiming under them, but when
the intention was to establish the line according to the true boundary, and by mistake the
parties agreed upon a line which does not conform to such true boundary, the line so agreed
upon is not conclusive. (Schraeder M. Co. v. Packer, 129 U. S. 688; Hatfield v. Workman, 35
W. Va. 578; Whitney v. Detroit Lumber Co., 78 Wis. 240; Guedici v. Boots, 42 Cal. 452;
Bailey v. Jones, 14 Ga. 384; Silver Creek Cement Co. v. Union Cement Co., 35 N. E. 125;
Gove v. Richardson, 4 Me. 327; Thayer v. Bacon, 3 Allen, 163; Brewer v. Boston and
Worcester R. R., 5 Metc. 478; McKinney v. Doane, 155 Mo. 287; Hedges v. Pollard, 149 Mo.
216; Kincaid v. Dormey, 51 Mo. 552; Menkens v. Blumenthal, 27 Mo. 198; Coon v. Smith,
29 N. Y. 392; Terry v. Chandler, 16 N. Y. 354; Davis v. Russell, 142 Pa. St. 426; Turner
Falls Lumber Co. v. Burns, 71 Vt. 45; Ulman v. Clark, 100 Fed. 180; Jordan v. Ferree, 101
Iowa, 440; Higginson v. Schaneback, 66 S. W. 1040; Patton v. Smith, 71 S. W. 187;
Sonnemann v. Mertz, 221 Ill. 362; Purtle v. Bell, 225 Ill. 523; Crane v. Judge, 30 Utah, 50;
Anderson v. Huebel, 133 Wis. 542.)
In the case of Mining Co. v. Packer above cited the Supreme Court of the United States
quotes with approval the following clear, comprehensive and just statement of the rule from
the Supreme Court of Pennsylvania: If the parties, from misapprehension, adjust their fences
and exercise acts of ownership in conformity with a line which turns out not to be the true
boundary, or permission be ignorantly given to place a fence on the land of the party, this
will not amount to an agreement or be binding as an assent of the parties; and I agree it
is a principle of equity that the parties to an agreement must be acquainted with the
extent of their rights and the nature of the information they can call for respecting them,
else they will not be bound.
the party, this will not amount to an agreement or be binding as an assent of the parties; and I
agree it is a principle of equity that the parties to an agreement must be acquainted with the
extent of their rights and the nature of the information they can call for respecting them, else
they will not be bound. The reason is that they proceed under an idea that the fact which is the
inducement to the agreement is in a particular way, and give their assent, not absolutely, but
on conditions that are falsified by the event.
In the case of Purtle v. Bell, the Supreme Court of Illinois states the rule in clear and just
terms: If the line is not in dispute, and the intention of the parties is merely to determine the
exact or true line, and in so doing an erroneous line is agreed upon by accident or mistake, the
agreement will not be binding, and the line will not be established, merely because of the
agreement previously entered into between the parties. In such a case there is a failure to find
the true line through accident or mistake, and not an agreement to adopt an unascertained or
disputed line; hence the same rule does not apply with reference to possession, estoppel, etc.
In the case of Crane v. Judge the Supreme Court of Utah states: A contract by which
defendant's predecessor in title conveyed to plaintiff a perpetual right to use and enjoy the
north half of the north wall of a building located over the line for building purposes, which
agreement also contained a mistaken description of the location of the wall, did not constitute
an agreement that the wall of such building should be considered as the boundary line.
Nothing can be claimed by way of adverse possession because of the erection of the one-story
building, for it was built less than seven years prior to the commencement of the action. The
stipulation and the evidence show, not only that the defendant did not pay the taxes on the
strip of ground in question, but also show affirmatively that the plaintiff did so. While it may
seem a harsh rule to apply the requirement of the statute to pay taxes to this kind of a case, the
statute in most positive terms makes such requirement an essential in all cases.
terms makes such requirement an essential in all cases. Under such a statute, and under facts
similar to those in the case at bar, the courts of California have given the statute application,
and held the claim of adverse possession unestablished because of the nonpayment of taxes
by the party claiming to hold the strip adversely.
It is not an answer to the rule laid down to say that the boundary mistakenly fixed in 1901
was acquiesced in. The evidence shows it was acquiesced in only so long as the mistake was
unknown. Neither can it be said that there was any adverse possession or claim or intention to
claim on the part of Robbins to the line. The evidence shows that she occupied up to this line
under a mistaken idea that it was the true line. She never paid taxes on any of the land in
controversy. She never did any act asserting a claim to any ground other than that covered by
the Walker deed. In fact, as shown by the testimony, there were no boundaries marked on
Front Street outside of the fence which was mistakenly supposed to be on the line between
lots No. 52 and 53. It is not sufficient to say that there was an implied agreement respecting
this matter. If there was an agreement at all, according to the testimony of Ida Robbins, it was
an express agreement. According to the testimony of Mr. Martin and the other witnesses it
was an express agreement. According to the testimony of all the witnesses it was an express
agreement to establish the boundary line between lots 47 and 48 according to the original
survey and true line and no intention on the part of either to surrender or give up to the other
any part of lot 47 or 48, and each of the parties assumed and believed that they had not given
to the other any portion of the grounds included within the respective lots. They rested upon
that assumption until the survey was made shortly before the institution of this suit. The line
fixed was fixed by mutual mistake and there is nothing either in the evidence, or in the law,
or under the rules of equity which requires the court to bind the parties by a mistake of this
kind. We therefore respectfully submit that the judgment and order appealed from should
be reversed and a judgment in favor of the appellants in this action be directed.
judgment and order appealed from should be reversed and a judgment in favor of the
appellants in this action be directed.
Stoddard, Moore & Woodburn, for Respondent:
Counsel for appellants in his brief argues that both C. S. Martin and Ida Robbins made a
mistake as to the true boundary line, and for that reason that such agreement is not binding
upon either party or their successors in interest, and cites a large number of cases, which it is
contended supports this position.
From an examination of the cases cited, it appears either that the statute of limitations had
not run after the making of the agreement, and that the party injured instituted proceedings
before such time had expired, or that the line so fixed was fixed by and through the
misrepresentations, fraud or imposition of the party benefited.
The decisions of the State of Missouri appear to have gone further to support counsel's
contention than that of any other jurisdiction, and in one of the leading cases of that state it is
held the possession of coterminous proprietors under a mistake or ignorance of the true line,
and without intending to claim beyond it will not work a disseisin. (Finch v. Ullman, 105 Mo.
255, cited in 24 Am. Rep. 383.)
But upon this proposition the authorities are not uniform and it is held in many
jurisdictions that possession beyond a boundary line, although it was taken through mistake
or ignorance, will support a plea of the statutes of limitations and create a title by
prescription. (French v. Pierce, 8 Conn. 439, cited in 21 Am. Dec. 680; Metcalf v.
McCutchen, 60 Miss. 145; Ramsey v. Glenny, 45 Minn. 401; Flynn v. Glenny, 51 Mich. 580;
Watrous v. Morrison, 39 Am. St. Rep. 145; Canfield v. Clark, 11 Am. St. Rep. 847.)
It is not necessary that there shall be a dispute as to the boundary line between coterminous
proprietors to make binding and effective an agreement fixing a boundary between the
properties. It may be established by the acts of the parties, their acquiescence in and
observance and the use of the disputed strip, for a period of time at least equal to that
fixed by the statute of limitations, and the improvement thereof by the party benefited
and claiming with the knowledge of the injured party.
the acts of the parties, their acquiescence in and observance and the use of the disputed strip,
for a period of time at least equal to that fixed by the statute of limitations, and the
improvement thereof by the party benefited and claiming with the knowledge of the injured
party. (Helm v. Wilson, 76 Cal. 476.)
The court holds an instruction that no parol agreement in regard to land is good except
when there is a dispute between owners of adjoining tracts of land about a doubtful line, and
an agreement upon a division line between them, is erroneous, it not being necessary to the
validity of such an agreement that there should be a previous dispute about the line. The
court cited in connection therewith Dolde v. Vodicka, 49 Mo. 98; 1 Wait, Action and
Defense, 719, and cases cited; Silvarer v. Lawrence, 77 Cal. 579.
The cases above cited in our opinion successfully disposes of appellants' argument,
granting, for the sake of argument, that counsel's contention as to the effect of the evidence in
this case is correct. But it will be found upon the reading of the testimony in this case, and we
join with counsel for the appellants in the hope that the court will read all of the testimony,
that counsel's view of the case is not sustained.
The trial court, after a careful examination of all the testimony, took a different, and we
think a correct, view of the case, which was to the effect that C. S. Martin, the then owner of
lot 48 and lots adjoining the same to the eastward, who was the predecessor in interest of
appellants, and Ida Robbins, this respondent, who then owned lot 47 immediately adjoining
the said lot 48 to the westward, met upon the ground and together mutually agreed upon,
established and fixed a line as the dividing line between their respective properties; that this
occurred on or about the 5th day of September, 1901; that immediately after the said
boundary was fixed, this respondent, in compliance with such said agreement, immediately
caused a structure or building which she was then having constructed to be moved five feet to
the westward, off of the land which Martin claimed; that she proceeded to complete said
building after it was so moved, built a fence along the line so established, constructed a
stone wall at the rear and near the river, filled in the land, and expended in improvements
a sum of money in at least the amount of $1,S00; that she continued to enjoy, occupy and
use all of the said premises up to the line so established from the date it was so
established until the commencement of this action, a period longer that that required by
the statute of limitations of this state; that the said Martin and all persons acting for or
under him from the date the said line was so established has recognized that line and
their successors in interest recognized that line until the commencement of this action.
off of the land which Martin claimed; that she proceeded to complete said building after it
was so moved, built a fence along the line so established, constructed a stone wall at the rear
and near the river, filled in the land, and expended in improvements a sum of money in at
least the amount of $1,800; that she continued to enjoy, occupy and use all of the said
premises up to the line so established from the date it was so established until the
commencement of this action, a period longer that that required by the statute of limitations
of this state; that the said Martin and all persons acting for or under him from the date the said
line was so established has recognized that line and their successors in interest recognized
that line until the commencement of this action.
It also appears from the testimony that Ida Robbins paid taxes on the improvements on this
disputed strip; also that the building known as the Q. T. building, extends over on to lot 48
as shown by the survey a distance of some six feet, and that this building had stood upon a
portion of this land which is in dispute for a long time prior to September, 1901.
The rule is well settled and the authorities are abundant and uniform to the point that
where coterminous proprietors of land have established a division line between their
respective properties, have entered upon and improved the lands in accordance with such line,
and have acquiesced in its location for a time at least equal to that prescribed by the statute of
limitations, although it may not be the true line according to the calls of their deeds, they are
thereafter precluded from claiming that it is not the true line. (Dibble v. Rogers, 13 Wend.
536; Jackson v. McDonald, 12 Wend. 421, 16 Wend. 175; Clark v. Wesley, 16 Wend. 320;
Bradstreet v. Pratt, 18 Wend. 44; Adams v. Rockwell, 16 Wend. 285; Smith v. McAllister, 14
Barb. 434; Kip v. Norton, 27 Am. Dec. 120, and notes; Silvarer v. Lawrence, 76 Cal. 476, 77
Cal. 579; Salsbury v. Shirley, 66 Cal. 223; Sneed v. Osborn, 25 Cal. 619; Laverty v. Moore,
32 Barb. 347; Cooper v. Verra, 59 Cal.
Cal. 282; Menkens v. Blumenthal, 27 Mo. 198; Adams v. Child, 28 Nev. 184.)
The above authorities hold that disputed boundaries between two adjoining proprietors
may be settled by expressed parol agreement executed immediately and accompanied by
possession according thereto. Upon the same point, we cite Terry v. Chandler, 16 N. Y. 354;
Vosburgh v. Teator, 32 N. Y. 568; Smith v. Dudley, 13 Am. Dec. 224.
After the parties have deliberately settled a boundary line between them, it would give too
much encouragement to the spirit of litigation to look beyond such settlement and break up
the line so settled (Jackson v. Corlear, 11 Johns, 123), the boundary previously fixed by
mutual agreement binding all owners and those holding under them. (Larsen v. Townsite, 59
Pac. 234; Dierssen v. Nelson, 71 Pac. 456.)
In Flynn v. Glenny, 51 Mich. 580, the court holds resurvey cannot be allowed to unsettle
the lines of town lots after the lot owners have established such lines in accordance with the
stakes which they have found planted or required by authority, and in reliance on which they
have purchased.
This action was instituted on the 10th day of December, 1907, by the above-named
appellants against the respondent to recover possession of a portion of lot 48 in the river
front, in the city of Reno, as shown by the original official plat and survey of the town (now
city) of Reno. On the 4th day of September, 1901, and for some time prior thereto, the
respondent was the owner by title deeds of lots 45, 46, and 47 of said river front, and was the
owner of the same continuously from said time down to the institution of this action. On the
said 4th day of September, 1901, one C. S. Martin was the owner of said lot 48, and other lots
in said river front lying to the east thereof. On the 7th day of May, 1906, the said C. S. Martin
conveyed said lot 4S, together with lots 50 and 52, in said river front, to W. H. Pierson, M.
E. Cafferata, J.
C. S. Martin conveyed said lot 48, together with lots 50 and 52, in said river front, to W. H.
Pierson, M. E. Cafferata, J. Pickard, and P. Saturno, which said grantees subsequently, and on
the 28th day of September, 1906, conveyed said lots to the appellants herein.
It appears from the testimony that on the said 4th day of September, 1901, the said C. S.
Martin became aware that the respondent, Ida Robbins, was constructing a building on what
was believed by her to be lot 47, the said C. S. Martin, believing that said structure extended
over a portion of said lot 48, then owned by him, personally made certain measurements of
what he supposed at the time definitely located the dividing line between said lots 47 and 48.
From the measurements so made by him at that time, it appeared that the respondent was
encroaching upon lot 48 a distance of five feet. The said Martin notified the respondent that
her building was extending over his lot 48 a distance of five feet, and requested her to remove
the same therefrom. He then set a stake at a point which he claimed to be the dividing line
between said lots. The respondent accepted as correct the division line so designated by the
said Martin, caused the building which she was then constructing to be moved to the west a
distance of five feet, built a fence along the division line as indicated by the said Martin, and
proceeded to improve the ground to the west of said line by building a stone wall along the
river, and filled in said lot; the improvements so made by her being estimated to be of a value
of $1,800. After the said division line was so designated by Martin and acquiesced in by the
respondent in September, 1901, no further question was raised as to the correctness of said
line until shortly prior to the institution of this action, a period of about six years.
It further appears from the testimony that in locating the boundary line between said lots
47 and 48 the said Martin measured 125 feet westerly from a certain fence, which he
supposed, and for many years prior thereto had supposed, marked the boundary line between
lots 52 and 53 of said river front, having been so informed many years prior thereto by his
immediate grantor, but which fence was not in fact on said division line between lots 52
and 53, but was 22.S feet east of the same.
53 of said river front, having been so informed many years prior thereto by his immediate
grantor, but which fence was not in fact on said division line between lots 52 and 53, but was
22.8 feet east of the same.
From a letter written by the said C. S. Martin of date August 30, 1908, and introduced in
evidence without objection, appears what may be regarded as a correct statement of facts,
which accounts for the error in locating the dividing line between said lots 47 and 48: I
measured with a tapeline 125 feet from what I supposed was the easterly line of lot 52, of the
river front, Chinatown lot coming next being No. 53. Now when I purchased said lot 52, also
lots 48 and 49 of Contract and Finance Company (C. P. R. R. Co.) their townsite agent, D. H.
Haskell, had built a plank fence as a division line between lots 52 and 53, said Haskell at that
time being a one-half owner of all of Chinatown. Now when I purchased said lots 48, 49 and
52 from railroad company through its agent, Haskell (now deceased), I did not question for a
moment but that the fence he had built as a dividing line between lots 52 and 53 was a correct
boundary line. Time rolled on for perhaps over twenty years more, in the meantime I
purchased all of Haskell's interests in Chinatown. In the course of fourteen or fifteen years,
more or less, myself and A. H. Manning sold all of Chinatown to F. J. Peck, Charles May, et
al., who after becoming owners of Chinatown had a survey made thereof and found that Mr.
Haskell had made a mistake as to the dividing line between lots 52 and 53. The survey made
by Peck, May and Company established a line twenty, more or less, feet westerly from where
Mr. Haskell had his dividing line fence. This shows that Mr. Haskell, being the owner of
Chinatown, made a mistake of twenty feet of ground, more or less, not in his favor, but
against himself. He used twenty or more feet belonging to Chinatown, Miss Robbins used
twenty or more feet belonging to me, her westerly neighbor used twenty or more feet
belonging to her, and such has been the case for twenty-three or twenty-four years.
Upon the foregoing state of facts, a judgment was entered in favor of the defendant. From
the judgment and from an order denying plaintiffs' motion for a new trial, they have appealed.
Counsel for appellants in their brief contend that this case should be determined in
appellants' favor upon the application of the following rule: An agreement between
adjoining owners establishing a disputed boundary line is generally conclusive upon them and
persons claiming under them, but when the intention was to establish the line according to the
true boundary and by mistake the parties agreed upon a line which does not conform to such
true boundary the line so agreed upon is not conclusive.
Conceding, without deciding, that the foregoing is a proper rule in determining the rights
of adjoining landowners under a certain state of facts, nevertheless we do not think it is the
rule controlling under the facts established in this case. Where, as in this case, a dividing line
was established between the property of appellants and respondent by the act of one through
whom appellant deraigned title and was acquiesced in by respondent, which was not in fact
the true line according to their respective deeds, but in accordance with which they or their
grantees occupied their respective lands for a time in excess of that prescribed by the statute
of limitations, and immediately after the establishment of such line the respondent makes
valuable improvements with reference to such line, on the land supposed to be hers, with the
knowledge of the one who established said line, he and his successors in interest are
conclusively estopped from questioning it as the true line. (Loustalot v. McKeel, 108 Pac.
707; Horton v. Rogharr, 108 Pac. 21; Kitchen v. Chantland, 130 Iowa, 618, 105 N. W. 367, 8
Am. & Eng. Ann. Cas. 81; Miller v. Mills County, 111 Iowa, 654, 82 N. W. 1040; Pittsburgh
Iron Co. v. Lake Superior Iron Co., 118 Mich. 109, 76 N. W. 395; Ernsting v. Gleason, 137
Mo. 594, 39 S. W. 70; Laverty v. Moore, 32 Barb. 347; Corkhill v. Landers, 44 Barb. 218;
Adams v. Child, 28 Nev. 169.) The judgment and order denying plaintiffs' motion for a new
trial are affirmed.
The judgment and order denying plaintiffs' motion for a new trial are affirmed.
A petition for rehearing and a reply thereto have been filed in the above-entitled cause.
The reply to the petition admits as true the following statement contained in the petition: It is
undisputably established that at all times after the boundary line was fixed the respondent had
and held all ground covered by her conveyances and the ground in dispute belonging to these
complainants.
The foregoing is a statement of a fact not impressed upon the court upon oral argument or
in the briefs heretofore made or filed. Upon the contrary, this court accepted as a correct
statement of facts the letter of C. S. Martin, of date August 30, 1908, quoted in the opinion
heretofore rendered, which letter was admitted in evidence upon the request of one of the
parties and the consent of the other party to the action. This letter concludes with the
following statement: This shows that Mr. Haskell, being the owner of Chinatown, made a
mistake of twenty feet of ground, more or less, not in his favor, but against himself. He used
twenty or more feet belonging to Chinatown, Miss Robbins used twenty or more feet
belonging to me, her westerly neighbor twenty or more feet belonging to her, and such has
been the case for twenty-three or twenty-four years.
Having accepted this statement contained in the said letter of C. S. Martin as a fact, it
appeared that the respondent, Ida Robbins, in case plaintiffs and appellants prevailed in the
action, would be the loser of twenty feet or more of the aggregate amount of land embraced
within her deeds to lots 45, 46, and 47. It now appears from the petition and reply thereto that
the statement above quoted in the letter of C. S. Martin is not the fact as established by the
record, but that, upon the contrary, the respondent has all of the land embraced in lots 45, 46,
and 47, and in addition thereto the extra twenty or more feet included in lot 4S.
in lots 45, 46, and 47, and in addition thereto the extra twenty or more feet included in lot 48.
We are still of the opinion that the conclusion reached in our former decision was entirely
correct, based upon the facts stated in the decision and then assumed to be true, for under
such state of facts the equities were with the respondent. It now being admitted that the said
statement contained in the letter of C. S. Martin was an error, and that the record establishes a
contrary state of facts, in order that the question may be presented upon the facts as stated in
the above quotation from the petition for a rehearing, which are conceded by the respondent
to be true, a rehearing is hereby granted.
It is so ordered.
On Rehearing
Upon further consideration on rehearing, the judgment of district court appealed from, and
the decision of the supreme court heretofore rendered will stand affirmed.
Talbot, J.: I concur.
Upon the original hearing in this case, the judgment was affirmed. A rehearing was
granted upon petition of appellants, for the reason that this court had assumed as true a
statement of facts contained in a letter of appellants' grantor, admitted in evidence without
objection. According to this letter, plaintiffs and defendant, and their grantors and
predecessors in interest and others owning land on Front Street in the City of Reno both to the
east and west of the property described in the deeds of plaintiffs and defendant had for many
years been occupying the land upon that street, not in accordance with the true survey, but
each respective owner had been occupying about twenty feet of his neighbors' land to the east,
and that this mistake, which applied to the lot owners generally along the street, was due to
the mistaken impression that a certain fence several lots easterly of the lots owned by the
plaintiffs was on the dividing line between lots 52 and 53, whereas in fact it was some
twenty feet easterly of the true line.
by the plaintiffs was on the dividing line between lots 52 and 53, whereas in fact it was some
twenty feet easterly of the true line.
Accepting the statement of facts contained in the letter as true, it appeared that the
defendant was occupying no greater amount of land than her deeds called for; that the
plaintiffs' grantor had marked the boundary line as it was supposed to lie between lots 47 and
48, and the defendant had acquiesced in the line so marked and had made valuable
improvements with regard to such line. Under the facts so assumed it was held that plaintiffs
were estopped from questioning the correctness of the line as so established.
The reply to the petition for a rehearing admitted as true the following statement in the
petition for a rehearing:
It is indisputably established that at all times after the boundary line was fixed the
respondent had and held all ground covered by her conveyances and the ground in dispute
belonging to these complainants.
In the brief filed on rehearing counsel for respondent concede that they made the
admission, but in so doing they erred, for, upon making an examination of the record, they
find nothing therein upon which to base such an assertion. It is not contended that the
admission is not true in fact, but that the record fails to show it. The trial court found as a fact
that at the time the said C. S. Martin designated the boundary line between lots 47 and 48,
and prior thereto, the defendant, Ida Robbins, was the owner of and in possession of lots 45,
46, and 47 of river front, as shown by the official plat of the town (now city) of Reno,
Nevada.
We think the record discloses sufficient evidence to support this finding.
The question of an estoppel of Martin and his grantees and successors in interest to
question the boundary established between lots 47 and 48, which this court in its former
opinion deemed controlling, does not seem to have been given the consideration by the trial
court and counsel which its importance, I think, justifies.
sel which its importance, I think, justifies. Defendant set up two defenses in her answer, one
that she had acquired title by adverse possession and the other, as we understand it, was
intended to set up an estoppel.
The trial court based its decision entirely on adverse possession. The later and
better-considered authorities, I think, would support the decision of the trial court were it not
for a provision of our statute, as amended in 1887, requiring the adverse claimant to have
paid the taxes on the property claimed in addition to the other requisites of an adverse
possession. See the extensive note to Edwards v. Flemming, 33 L. R. A. (N. S.) 923, et seq.
Compiled Laws, 3709, provided that in no case shall adverse possession be considered
established, unless it be shown, in addition to the above requirements, that the land has been
occupied and claimed for the period of five years, continuously, and that the party or persons,
their predecessors, and grantors, have paid all taxes, state, county and municipal, which may
have been levied and assessed against said land for the period above mentioned. (Rev. Laws,
4960.)
In this case it appears from the record that the defendant, Ida Robbins, paid the taxes
levied and assessed against lots 45, 46, and 47 only, and that Martin and his successors paid
the taxes levied and assessed against lot 48. This being the case, defendant could not, under
the express provisions of the statute, acquire title by adverse possession to the portion of lot
48 in controversy. (Woodward v. Farris, 109 Cal. 12; Lucas v. Provines, 130 Cal. 270.)
This case is not one of the class where the boundary line is or was indefinite, uncertain,
disputed or controverted and the parties in settlement thereof have agreed upon a dividing
line, and have improved their property with reference thereto, but it is a clear case of an
agreement upon a line as a boundary between two lots the lines of which were definitely fixed
and easily ascertainable, the parties at the time believing that they were fixing the line in its
true location, but through the mistake of one or both parties the line was located in a wrong
place.
place. In this latter class of cases the parties are bound to observe the line as so erroneously
established, only when the party gaining by the error may be said to have acquired title to the
additional strip by adverse possession, or where the subsequent conduct of the parties is such
as to estop the party against whose interests the mistake was made, from subsequently
questioning the correctness of the boundary.
Defendant must recover, if at all, upon the doctrine of estoppel. As the question was not
determined by the trial court, and as this court in its original opinion based its decision upon
what now appears to be an erroneous conception of the facts of the case, I think the case
should be retried in order that both sides may have an opportunity to present fully such facts
as may have a bearing upon such question and that the same may be considered by the trial
court and counsel in the light of all such facts.
It would seem from the record that this case was tried mainly, if not entirely, upon the
theory of adverse possession, otherwise some facts in the case which do not seem to be
entirely clear from the transcript would have received more attention. For example, the
defendant testified that about eleven years prior to the trial she had had made a survey of the
lots, but later qualified this by saying that the survey was not made to determine the amount
of property she had, but was made to build a building. The building referred to was,
doubtless, the one designated as the Montana. The west line of this building, according to a
map introduced in evidence, was exactly on the line between lots 46 and 47. This would seem
to indicate that the defendant had knowledge, at the time this building was constructed, of the
correct location of the boundaries of her lots. The building was constructed, however, so that
it took in the entire width of lot 47 and extended eight or nine feet over on lot 48. The
building called the Mint joined the Montana on the east, and it does not appear that any
attention was paid to its location on the ground until Martin concluded it was over some five
feet on his lot 4S and he designated what he supposed was the correct line.
it was over some five feet on his lot 48 and he designated what he supposed was the correct
line. The building, it would seem, would have been constructed as planned originally, had
Martin not made what he thought was a discovery that it was five feet on his land. It must be
conceded that this building was not constructed because Martin designated the boundary, for
it was already partially completed at the time. If the defendant knew at the time she built the
Montana that the west line thereof was on the line between lots 46 and 47, then she
knowingly or carelessly built upon her neighbor's ground and the same would be true as to the
building called the Mint. Without some satisfactory explanation of these facts, which the
record does not now disclose, I think it very doubtful if the appellants could be said to be
estopped from asserting the right of possession of the lot to which they hold the legal title. In
any event both parties should have the fullest opportunity to present all the facts which may
have a bearing upon the question of estoppel, which the lower court has never passed on, and
which it would appear may not have been so seriously urged at the trial as the defense of
adverse possession, which was the only question considered by the court in its opinion.
For the reasons stated, I am of the opinion a new trial should be granted.
____________
33 Nev. 307, 307 (1910) Rawhide Balloon Fraction Mining Co. v. Rawhide Coalition Mines
Co.
[No. 1883]
RAWHIDE BALLOON FRACTION MINING COMPANY (a Corporation), Appellant, v.
THE RAWHIDE COALITION MINES COMPANY (a Corporation), Respondent.
1. Appeal and ErrorReviewConflicting Evidence.
Where there is a material conflict in the testimony, the decision of the trial court will be deemed
conclusive on appeal.
2. Appeal and ErrorHarmless ErrorAdmission of Evidence.
In an action tried by the court without a jury, the erroneous admission of certain documents in evidence is
not ground for reversal, where it appears that the court did not give weight thereto as being prima facie
evidence, but rested its conclusion on the testimony of the witnesses.
Action by the Rawhide Balloon Fraction Mining Company against the Rawhide Coalition
Mines Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Alfred R. Needles, for Appellant.
Stevens, Shelton & Van Pelt, and Walter Shelton, for Respondent.
Per Curiam:
This is an adverse suit, prosecuted by the appellant against respondent for the purpose of
determining the right to the possession of the ground included in what is known as the
Rawhide Fraction lode mining claim, to the extent that the same is in conflict with the
Happy Day lode mining claim. The error in conflict is 1.09 acres, which is claimed by the
respondent to be a part of the Happy Day claim. From the judgment, and from an order
denying a motion for new trial, the plaintiff has appealed.
The case was tried by the court sitting without a jury, a jury having been expressly waived.
At the outset of the trial, it was stipulated that each of the parties to the suit made a
discovery which would be sufficient to sustain a claim of unoccupied public domain, and
each did the proper amount of location work and monumented its boundaries in the
manner prescribed by law; but as to the location of the monuments on each claim in
controversy, it was left a question for the court to decide.
Co.
the trial, it was stipulated that each of the parties to the suit made a discovery which would be
sufficient to sustain a claim of unoccupied public domain, and each did the proper amount of
location work and monumented its boundaries in the manner prescribed by law; but as to the
location of the monuments on each claim in controversy, it was left a question for the court to
decide. It was also conceded that the Happy Day was a prior location, and the only point at
issue was whether the respondent and its grantors had done all the necessary acts to constitute
a valid location of the ground in conflict. The only material question in controversy was as to
the location of certain monuments of the Happy Day lode mining claim at the time appellant
undertook to institute his right to the Balloon Fraction lode. Upon this point there is a
material conflict in the testimony, and under the rule repeatedly affirmed by this court the
decision of the lower court upon such conflict will be deemed conclusive.
It is contended, however, that the trial court erred in the admission in evidence of the
location certificate and two amended location certificates of the said Happy Day claim. We
need not determine, we think, whether or not there was merit in the objections interposed to
the certificate of location and amended certificates of the Happy Day claim, for the reason
that it appears that the court determined the question of the location of the monuments in
controversy upon the testimony of the witnesses upon the trial, irrespective of the certificate
of location and the amendment thereto. Had this case been tried by jury, the question whether
or not these certificates were erroneously admitted would, of course, be a serious question,
and, if deemed erroneous, would doubtless be sufficient ground for reversal. In a case,
however, tried before the court, where it appears that the court did not give weight to the
certificates as being prima facie evidence, but rested its conclusion upon the testimony of the
witnesses, we are of the opinion that, if error occurred in the admission of the certificate of
location, or the amendments thereof, the same did not amount to prejudicial or reversible
error.
Co.
ments thereof, the same did not amount to prejudicial or reversible error.
The judgment and order appealed from are affirmed.
____________
33 Nev. 309, 309 (1910) Ex Parte Davis
[No. 1903]
Ex Parte DAVIS
1. Habeas CorpusScope of Writ.
A writ of habeas corpus cannot be used to perform the functions of an appeal or writ of error, but can
only review questions going to the jurisdiction of the court to enter the particular judgment, and not as to
whether the court erred in the exercise of such jurisdiction.
2. Indictment and InformationExceptions.
In an indictment or criminal complaint it is not necessary to allege that defendant is not within an
exception specified in the statute.
3. Criminal LawCourtsJurisdictionExceptions.
Where, on trial for a criminal offense, the evidence without conflict shows that defendant is exempted
from the penal provisions of the act (Stats 1903, c. 114), the court is without power to render a judgment
of conviction.
4. Habeas CorpusScope of WritJudgmentJurisdiction.
Where the evidence without conflict establishes that the defendant belongs to a class not within a
penal statute, habeas corpus is available to bring up for determination the court's jurisdiction to render
judgment of conviction and to obtain defendant's discharge.
5. WeaponsCarrying Concealed WeaponsStatutesConstructionExceptionsActing or Engaged in the
Business of Common Carriers.
The act (Stats. 1903, c. 114) regulating and prohibiting the carrying of concealed weapons declares
(section 4) that it shall not apply to peace officers in the discharge of their duties, nor to persons acting or
engaged in the business of common carriers in the state, or to persons traveling through the state. Held,
that the words acting or engaged in the business of common carriers did not limit the exemption to
persons engaged in common carrying, but that the exemption included persons acting or engaged in
other business of common carriers than actual transportation of freight or passengers, such as the
guarding of trains, depots, or property of common carriers, and that watchmen employed by a railroad
company, though not engaged in train service, were within the exception.
Original proceeding. Application by R. A. Davis for writ of habeas corpus.
for writ of habeas corpus. Writ granted. Petitioner discharged.
James F. Dennis, and Campbell, Metson & Brown, for Petitioner.
R. C. Stoddard, Attorney-General, and Cleveland H. Baker, District Attorney, for the
State.
Per Curiam:
This is an original proceeding in habeas corpus. Petitioner was convicted, in the justice's
court of Tonopah township of a misdemeanor, to wit, carrying a concealed weapon,
committed on the 4th day of April, 1910. Upon appeal to the district court in and for Nye
County, a trial was had de novo, and judgment of conviction again entered against him, and a
fine imposed for such offense of $100, and that, in default of payment of said fine, he be
imprisoned in the county jail of Nye County one day for each $2 of said fine. At the
conclusion of the trial in the district court, the court sitting without a jury, a jury having been
expressly waived, and the cause having been submitted for decision and judgment, the court
filed an opinion in writing, including findings of fact in the nature of a special verdict. The
facts so found by the court are as follows:
(A) The Tonopah and Goldfield Railroad is a common carrier.
(B) The defendants were employed as watchmen by the said railroad company.
(C) The defendants were not employed in train service; that is, no one of them was
employed on April 4, 1910, as a conductor, a brakeman, an engineer, or a fireman.
(D) The defendants, on April 4, 1910, in the town of Tonopah, Nye County, Nevada,
were carrying concealed weapons.
(E) The said concealed weapons were carried under instructions from the special agent
of the said company, who in turn was acting under instructions from the superintendent.
instructions from the special agent of the said company, who in turn was acting under
instructions from the superintendent.
(F) The attorneys of the company had advised the superintendent that concealed weapons
could be carried by all employees of the railroad company; the language used being in part as
follows: In our opinion, it permits all persons on our payroll to carry concealed weapons.'
The statute (Stats. 1903, c. 114), for a violation of the provisions of which petitioner was
convicted, is entitled An act to prohibit the carrying of concealed weapons and to provide for
the punishment thereof, and reads as follows:
Section 1. It shall be unlawful for any person in this state to wear, carry or have concealed
upon his person, in any town any dirk-knife, pistol, sword in case, slung-shot, or other
dangerous weapon, without first obtaining permission from the board of county
commissioners, attested by its clerk, of the county in which such concealed weapon shall be
carried.
Sec. 2. The board of county commissioners of any county in this state may, upon an
application made in writing, showing the reason of the person, or the purpose for which any
concealed weapon is to be carried, grant permission under its seal, and attested by its clerk, to
the person making such application, authorizing such person to carry the concealed weapon
described in such permission.
Sec. 3. Any person who shall violate any of the provisions of this act shall be guilty of a
misdemeanor and on conviction thereof shall be fined not less than twenty dollars, nor more
than five hundred dollars, or by imprisonment in the county jail for not less than thirty days,
nor more than six months.
Sec. 4. This act shall not apply to peace officers in the discharge of their duties, nor to
persons acting or engaged in the business of common carriers in this state, or to persons
traveling through the state.
A number of contentions have been made by counsel for petitioner upon the hearing,
only one of which will be necessary to consider.
for petitioner upon the hearing, only one of which will be necessary to consider. At the outset
it is proper to note that the writ of habeas corpus cannot be used to perform the functions of
an appeal or writ of error, that it can only go to a question of the jurisdiction of the court to
enter the particular judgment, and not as to whether the court erred in the exercise of such
jurisdiction.
It is, in effect, contended by counsel for the state that, conceding that the court found as a
fact that the petitioner was in the class of persons exempted from the penal provisions of the
act, supra, nevertheless the court had jurisdiction of the person of petitioner and the
subject-matter embraced within the criminal complaint, and hence had jurisdiction to impose
the particular judgment entered. If we concede this contention to be correct, it is the end of
this proceeding. If this contention is the law, then upon a trial in the district court of a person
charged with a violation of this act the court may, for example, find as a fact that he was the
sheriff of the county, that he was carrying the concealed weapon in the discharge of his duty
as such sheriff, and may, nevertheless, enter a judgment that he is guilty, and upon such
judgment impose sentence of imprisonment; such judgment and sentence being only error of
law, and not an excess of jurisdiction, which this court could redress.
Again, suppose that the cases had been tried by jury and a verdict of not guilty returned,
and the court, notwithstanding, imposed judgment and sentence of imprisonment; can it be
said that this would be simple error within jurisdiction? These examples are extreme cases,
and probably would not be found in the concrete; but they are examples wherein the court
would have jurisdiction of both the subject-matter and the person, and, if the rule is as
contended for by counsel for the state, they would not be examples of cases of excess of
jurisdiction, and hence beyond relief by habeas corpus.
The modern doctrine of jurisdiction, the excess of which habeas corpus may relieve
against, goes not only to jurisdiction over the person and the subject-matter, but to the
power or jurisdiction to render the particular judgment.
to jurisdiction over the person and the subject-matter, but to the power or jurisdiction to
render the particular judgment. (21 Cyc. 296, and numerous cases cited in note 72, p. 297.)
With this modern doctrine, which is more in accord with reason and justice, this court is
already in accord. (Ex Parte Webb, 24 Nev. 238; Ex Parte Dela, 25 Nev. 346; Ex Parte
Rickey, 31 Nev. 82; Ex Parte Roberts, 9 Nev. 44, 16 Am. Rep. 1.)
In Ex Parte Webb, supra, this court said: There are three essential elements necessary to
render convictions valid. These are that the court must have jurisdiction over the
subject-matter, the person of the defendant, and authority to render the particular judgment. If
either of these elements is lacking, the judgment is fatally defective, and the prisoner held
under such judgment may be released on habeas corpus. (Brown on Jurisdiction, 110, and
cases cited; Courts on Jurisdiction, 641, and citations.)
In Ex Parte Rickey, supra, we quoted with approval from Re Corryell, 22 Cal. 178, also
quoted in Ex Parte Kearney, 55 Cal. 229, the following: The court derives its jurisdiction
from the law, and its jurisdiction extends to such matters as the law declares criminal, and
none other; and when it undertakes to imprison for an offense to which no criminality is
attached, it acts beyond its jurisdiction.'
No better illustration of the wisdom and justice of this view of the law could be found than
in cases like that under consideration, where a statute makes the doing of a certain act a penal
offense, and then exempts a certain class of persons from its provisions. As against the
exempted class the law has no force or effect, and the court is without power to impose
punishment upon that exempted class for the doing of an act punishable as to others not
within the exemption. In indictments or criminal complaints it is not necessary to allege that
the defendant is not within an exemption specified in the statute; such exemption being
regarded as a matter of defense.
defense. (State v. Robey, 8 Nev. 321; State v. Ah Chew, 16 Nev. 50, 40 Am. Rep. 488; State
v. Buckaroo Jack, 30 Nev. 325.)
Where, however, upon the trial the evidence without conflict shows that the defendant is
exempted from the penal provisions of the act, the court is without power to render a
judgment of conviction. If there was a conflict in the evidence as to whether the defendant
was or was not within the exempted class, unquestionably the trial court would have
jurisdiction to determine the conflict, and if it determined that the defendant was not within
the exemption upon such conflicting evidence its judgment on a case appealed from a
justice's court would be conclusive. But where the evidence, without conflict, establishes that
the defendant belongs to a class not within the purview of a penal statute, a court has no other
alternative but to discharge him. A judgment of conviction in such a case would be in excess
of the court's power and void.
We therefore think it clear that this court on habeas corpus may go behind the judgment in
cases of this character, and inquire whether it conclusively appears that the petitioner is
within the exemption from the penal provisions of the statute for a violation of which he
stands convicted. It becomes, then, a question within the legitimate province of this court
upon a writ of habeas corpus to determine whether, under the facts found by the lower court,
the petitioner was within the exemption of the statute.
The trial court for convenience of consideration, very properly divided the act in question
into the following parts: (1) Unlawful to carry concealed weapons. (2) In any town. (3)
Without obtaining permission of the county commissioners. (4) Commissioners may grant
permits. (5) Penalty for violation. (6) Exemption of peace officers. (7) Exemption of common
carriers. (8) Exemption of travelers through the state. Relative to the scope of the seventh
subdivision made by the court, supra, the court said: This court is now called upon for the
second time to supplement the work of the legislature of 1903 as to the act under
discussion.
called upon for the second time to supplement the work of the legislature of 1903 as to the act
under discussion. It has already stricken from the act all parts thereof not relating directly to
concealed' weapons, because of the limitations of the title. It is now called upon to add
enough words to part 7 to clear up its application, for without additional words it is almost
devoid of meaning. After a lengthy consideration of the purposes of the act and the rules of
construction deemed controlling in its interpretation, the trial court reached the following
conclusion: Part 7 of this act is therefore interpreted to read as follows: This act shall not
apply to persons or corporations acting or engaged in the business of common carrier, or to
such of their employees as are actually engaged as guards or messengers to protect property in
transit, when on duty, or preparing for such duty, or returning from such duty.'
There are rules governing the construction of penal statutes which do not apply to statutes
generally, and which do not appear to have been taken into consideration by the trial court.
The law is very jealous of the liberty of citizens, and this has led to the establishment of
stricter rules in the construction of penal statutes than apply to those of a different character.
In the case of State v. Wheeler, 23 Nev. 152, this court, construing a penal statute
providing for certain exemptions, said: But perhaps the strongest reason that can be given
for the conclusion which we here announce is that this is a penal statute, and as such requires
a strict construction when against a citizen, but a liberal one in his favor. A penal statute is
one which imposes a forfeiture or penalty for transgressing its provisions, or for doing a thing
prohibited.' * * * Being penal, the proviso exempting persons from the operation of the law
should, on the other hand, receive a liberal interpretation. Mr. Bishop states the rule thus:
While the parts of a penal statute which subject to punishment or a penalty are, from their
odious nature, to be construed strictly, those which exempt from penal consequences will,
because of their opposite character, receive a liberal interpretation.' {Bishop, Writ.
will, because of their opposite character, receive a liberal interpretation.' (Bishop, Writ. Laws,
secs. 196, 226.) To the same effect are Sutherland, Stat. Const., sec. 227; Endlich, Stat. Int.,
sec. 332.
In Ex Parte Deidesheimer, 14 Nev. 311, this court said: Penal laws generally prescribe
what shall or shall not be done, and then declare the consequences of a violation of either
requirement. They should be plainly written, so that every person may know with certainty
what acts or omissions constitute the crime. (Bish. on Stat. Crimes, 193; Beccaria on Crimes,
22, 45; The Schooner Enterprise, 1 Paine, 33 Fed. Cas. No. 4,499.) * * * And in United
States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 (opinion by Chief Justice Marshall), the court
says: It has been said that, although penal laws are to be construed strictly, the intention of
the legislature must govern in their construction; that, if a case be within the intention, it must
be considered within the letter of the statute. The rule that penal laws are to be construed
strictly is perhaps not much less old than construction itself. It is founded on the tenderness of
the law for the rights of individuals, and on the plain principle that the power of punishment
is vested in the legislative, not the judicial, department. It is the legislature, not the court,
which is to define a crime and ordain its punishment. * * * The intention of the legislature is
to be collected from the words they employ. Where there is no ambiguity in the words, there
is no room for construction. The case must be a strong one, indeed, which would justify a
court in departing from the plain meaning of the words, especially in a penal act, in search of
an intention which the words themselves do not suggest. To determine that a case is within
the intention of a statute, its language must authorize us to say so.' See, also, Sedgwick on the
Construction of Stat. and Const. Law, 279 et seq.; Smith's Commentaries, 746; Bish. on Stat.
Crimes, 193, et seq. (Ex Parte Rickey, 31 Nev. 102.)
It is, however, the object of the construction of penal as of all other statutes to ascertain
the true legislative intent; and while the courts will not, on the one hand, apply such
statutes to cases which are not within the obvious meaning of the language employed by
the legislature, even though they be within the mischief intended to be remedied, they
will not, on the other hand, apply the rule of strict construction with such technicality as
to defeat the purpose of ascertaining the true meaning and intent of the statute."
intent; and while the courts will not, on the one hand, apply such statutes to cases which are
not within the obvious meaning of the language employed by the legislature, even though
they be within the mischief intended to be remedied, they will not, on the other hand, apply
the rule of strict construction with such technicality as to defeat the purpose of ascertaining
the true meaning and intent of the statute. (26 Am. & Eng. Ency. Law, p. 659.)
The legislature has enacted that this act shall not apply * * * to persons acting or engaged
in the business of common carriers in this state. The trial court has construed this language
to mean: This act shall not apply to persons or corporations acting or engaged in the business
of common carrier, or to such of their employees as are actually engaged as guards or
messengers to protect property in transit, when on duty, or preparing for such duty, or
returning from such duty. The legislature made no restriction to the exemptions specified in
section 4 of this act, save as to the peace officers when in the discharge of their duties.
Under what theory of construction courts can place limitations on the language used by the
legislature, so as to bring within such restricted construction persons liable to its penal
provisions who are not manifestly included under the general provisions, is not clearly
apparent.
Under the rules governing the construction of penal statutes, provisions creating an
exception are to be liberally construed. (State v. Wheeler, supra.) Courts have nothing to do
with the wisdom and policy of the legislature as set forth in its enactments. It may have been
unwise, from the viewpoint of the courts, to have created all the exceptions which it did in
this particular statute, but the courts cannot presume to supplement their action by a virtual
amendment of its provisions that is not in accordance with the manifest intent deducible from
the language of the act itself.
Under the provisions of this act it is not a misdemeanor for any one to carry a concealed
weapon outside the limits of a town.
limits of a town. Equally cogent reasons might be advanced why employees of a common
carrier who are engaged as watchmen of the property of the carrier, or the property of its
patrons in its depots, warehouses or other buildings, should be permitted to carry concealed
weapons as those who are engaged as guards or messengers to protect property in transit. If
we are to construe this law so as to limit it to guards and messengers having charge of
property in transit, why exclude stage drivers, or engineers, firemen, conductors, or brakemen
who have a part in the transportation of persons and property by the carrier? When an attempt
is made to place limitations on the language of the legislature, and say that the exemption
applies to this class of persons or employees, but does not apply to those in another class of
the same general employment, we at once are lost in a maze of diversified reasoning relative
to wisdom and policy, which naturally appeals with different degrees of force to different
minds.
It may have been unwise for the legislature not to have placed specific limitations upon all
the exemption provisions of the statute, but the fact remains that it did not. For the courts to
place limitations upon general exemption provisions in the case of a penal statute like this is
something more than construction, and is violative of the rule that such provisions shall be
liberally construed in favor of the individual. Penal statutes should be so clear as to leave no
room for doubt as to the intention of the legislature, and where a reasonable doubt does exist
as to whether the person charged with a violation of its provisions is within the statute, that
doubt must be resolved in favor of the individual.
If the legislature did not in fact intend that the required liberal construction be placed upon
the exemption features of this statute, then certainly they failed to make such intent clear. In
view of the language of the statute, we cannot say that the legislature did not intend that a
broad construction be placed on the exemption relative to common carriers when it used the
different words of a general character, "acting or engaged in the business of common
carriers."
the different words of a general character, acting or engaged in the business of common
carriers. Evidently this language, under the rule that we are bound to give a liberal
construction to penal statutes, means something more than persons engaged in common
carrying, and may include persons acting or engaged in other business of common carriers
than actual transportation of freight or passengers, such, for instance, as the guarding of the
trains, depots, or property of common carriers. Under such construction, we cannot see that
persons who are employed as watchmen of the property of common carriers are clearly within
the provisions of the statute. Not being clearly within its provisions, we are bound to hold that
they are without its provisions. If the exemption be considered too broad, it is better that it be
left to the lawmaking body to amend than for the courts to attempt to construe into the act a
legislative intent that is not clearly manifest.
The petitioner is discharged.
____________
33 Nev. 319, 319 (1910) Ex Parte Legume
[No. 1904]
Ex Parte LEGUME
Original proceeding. Application of Hans Legume for a writ of habeas corpus. Writ
granted. Petitioner discharged.
Campbell, Metson & Brown, for Petitioner.
R. C. Stoddard, Attorney-General, for the State.
Per Curiam:
In an opinion in case No. 1903, filed this date, entitled In the Matter of the Application of
R. A. Davis for a Writ of Habeas Corpus, the questions involved and the law applicable
thereto are the same as those involved in the above-entitled case. Upon the authority of said
case, and for reasons given therein, the petitioner in the present case is discharged.
It is so ordered.
____________
33 Nev. 320, 320 (1910) Ex Parte Van Hoeston
[No. 1905]
Ex Parte VAN HOESTON
Original proceeding. Application of George Van Hoeston for a writ of habeas corpus.
Writ granted. Petitioner discharged.
Per Curiam:
It is so ordered.
____________
33 Nev. 320, 320 (1910) Ex Parte Allen
[No. 1906]
Ex parte ALLEN
Original proceeding. Application of B. Allen for a writ of habeas corpus. Writ granted.
Petitioner discharged.
Per Curiam:
It is so ordered.
____________
33 Nev. 321, 321 (1910) Sherwin v. Sherwin
[No. 1832]
MINERVA SHERWIN, Appellant, v. BILLY E.
SHERWIN, Respondent.
1. ProcessPersonal Service Without StateConstruction of Statute.
Civil practice act, sec. 31 (Comp. Laws, 3126), prior to the amendment of 1909, provided that, when
service by publication is ordered, personal service of a copy of the summons and complaint out of the
state shall be equivalent to publication and deposit in the postoffice, and that the service of summons
shall be deemed complete in cases of publication at the expiration of six weeks from the first publication,
and that in cases when a deposit of a copy of the summons and complaint in the postoffice is also
required, at the expiration of six weeks from such deposit. Held, that, when personal service without the
state is made in lieu of publication, or in lieu of publication and deposit in the postoffice, the service is
not complete until the expiration of six weeks from such personal service, and, where such service was
made November 10th, defendant had forty-two days after the service in addition to the statutory period of
forty days in which to answer, and a default entered December 21st and a decree thereon entered
December 28th were premature, and plaintiff could have them set aside.
on petition for rehearing
1. ProcessPersonal Service Without StateStatutes.
Under section 31 of the civil practice act (Comp. Laws, 3126), providing, prior to the amendment of
1909 (Stats. 1909, c. 69), that when service by publication is ordered personal service of a copy of the
summons and complaint out of the state shall be equivalent to publication and deposit in the postoffice,
such a personal service is equivalent to a completed service by publication, as regards the time for
answer.
2. ProcessServiceReturn.
The one by whom summons was served was, presumptively, a citizen of the United States over 21
years, and so authorized by section 31 of the civil practice act (Comp. Laws, 3123), to serve it; the return
reciting that he was a constable and deputy sheriff of a county of California.
3. JudgmentDefaultShowing Meritorious Defense.
The affidavit of defendant's counsel to open a default and set aside the judgment, that he is familiar
with the defense to be interposed in this action and believes it to be good and meritorious, is an
insufficient showing.
Esmeralda County; Peter J. Somers, Judge.
Action by Billy E. Sherwin against Minerva Sherwin.
From an order denying defendant's motion to open a default and set aside a judgment of
divorce, defendant appeals. Reversed and remanded, with directions. On petition for
rehearing former decision vacated and order appealed from affirmed.
John M. Breeze, and Thomas E. Flanagan, for Appellant.
Key Pittman, and Stevens & Van Pelt, for Respondent.
Campbell, Metson & Brown, and Walter Shelton, amici curiae.
This is an order from an appeal denying the motion of the defendant, appellant herein, to
open a default and to set aside a judgment and decree dissolving the bonds of matrimony
existing between the above-named parties. The above-named respondent instituted a
proceeding for divorce in the First (now Seventh) Judicial District Court in and for the
County of Esmeralda on the 10th day of October, 1908. Upon the same day, he duly procured
an order for the service of summons by publication, which order also directed that a copy of
the complaint and summons be mailed to the defendant at her address at Pasadena. The
record contains an affidavit showing that a copy of the complaint and summons was duly
mailed to the defendant, but there is no showing that the summons was ever published in
pursuance of the order. The service relied on and the only one which could be relied on is that
made by one W. C. Austin, who made return by affidavit attached to the original summons
that he was at the time of such service a citizen of the United States over the age of 18 years;
that he personally served the summons on the said defendant by delivering to and leaving
with the said defendant personally at the city of Pasadena, in the county of Los Angeles,
State of California, a copy of said summons attached to a copy of the complaint, on the
10th day of November, 190S.
Angeles, State of California, a copy of said summons attached to a copy of the complaint, on
the 10th day of November, 1908.
Subsequently, to wit, on the 21st day of December, 1908, default was entered against said
defendant. Thereafter, on the 28th day of December, 1908, pursuant to said default, the matter
was heard by the district court upon plaintiff's complaint, and a decree dissolving the bonds of
matrimony then existing between said plaintiff and defendant was entered in the cause.
Thereafter and on the 12th day of January, 1909, the said defendant through her attorneys
tendered to the clerk of the court a demurrer to the complaint therein on file, which demurrer
was refused filing by said clerk upon the ground that the case was closed. Thereafter, and
on the 29th day of January, 1909, the defendant through her attorneys filed a motion to set
aside the default and decree entered in said cause on the ground that the defendant was
surprised at the entering of said default and granting of said decree, inasmuch as said order
and decree were entered prior to the legal time being expired for the defendant to answer.
Thereafter, and on the 6th day of February, 1909, said motion came on to be heard and was
denied by the court.
This appeal presents the sole question of the legal time allowed by the statutes of this state
prior to the amendment of 1909, in which a defendant may appear and answer when personal
service has been obtained without the state. A defendant served with summons without the
state is entitled to forty days to answer after such service. If the service upon the defendant
was in law complete on the 10th day of November, 1908, then the default and decree were not
prematurely entered, but if, as contended by counsel for appellant, personal service without
the state, in lieu of publication of summons, is not complete until six weeks after such
personal service, then the defendant had in reality eighty-two days to answer after such
personal service, instead of forty days. If the appellant's contention is correct that the default
and decree were prematurely entered, the court erred in refusing to set aside the same on
motion of counsel for defendant.
and decree were prematurely entered, the court erred in refusing to set aside the same on
motion of counsel for defendant. (Forsyth v. Chambers, 30 Nev. 337.)
Section 31 of the civil practice act (Comp. Laws, 3126) provides: The order shall direct
the publication to be made in a newspaper, to be designated by the court or the judge thereof
as one most likely to give notice to the person to be served, for a period of six weeks. * * *
When publication is ordered, personal service of a copy of the summons and complaint out of
the state shall be equivalent to publication and deposit in the postoffice. The service of
summons shall be deemed complete in cases of publication at the expiration of six weeks
from the first publication, and in cases when a deposit of a copy of the summons and
complaint in the postoffice is also required, at the expiration of six weeks from such deposit.
While the provisions of section 31 of the civil practice act, supra, have not heretofore
directly come before this court for construction, nevertheless the identical question was
presented in the case of Pratt v. Stone, 25 Nev. 365, in construing the provisions of section
517 of the civil practice act (Comp. Laws, 3612), relating to service of summons issued by
justice courts upon a defendant residing without the state; the provisions of said sections 31
and 517 being identical in their requirements. After setting out the provisions of said section
517, this court in Pratt v. Stone, supra, said: We think it evident from the above provisions
of the statute that the service is not complete until at the expiration of six weeks from the date
of personal service out of the state when such service is made in lieu of publication or in lieu
of publication and deposit in the postoffice when such deposit is also required.
The construction thus placed upon these provisions of our statute is in accordance with the
construction placed upon similar provisions appearing in the codes of New York and
California, from whence our statute is derived. (Bank v. Bank, 89 N. Y. 397; Brooklyn Trust
Co. v. Bulmer, 49 N. Y. S4; Tomlinson v. Van Vechten, 6 How. Prac. {N. Y.)
mer, 49 N. Y. 84; Tomlinson v. Van Vechten, 6 How. Prac. (N. Y.) 199; Abrahams v.
Mitchell, 8 Abb. Prac. (N. Y.) 123; McBlain v. McBlain, 77 Cal. 507, 20 Pac. 61.)
This, we think, is also the construction which has generally been placed upon this
provision of our civil practice act by the district courts of this state. In order to revise this
generally accepted construction, the last legislature amended the provision of section 31 so
that said section now contains the provision: When publication is ordered, personal service
of the copy of summons and complaint, out of the state, shall be equivalent to completed
service by publication and deposit in the postoffice, and the person so served shall have forty
days after said service to appear and answer or demur.
The order appealed from is reversed and the cause remanded, with directions to the trial
court to enter an order setting aside the default and decree, and permitting the defendant to
plead to the plaintiff's complaint.
Sweeney, J.: I concur in the judgment.
Talbot, J., concurring:
I concur in the order because the judgment and default in the district court are based upon
an affidavit which states that the person who made the service of the summons upon the
defendant was over 18 years of age. This is the age required by the California statute. Section
28 of the practice act (Comp. Laws, 3123) requires the service to be made by the sheriff or his
deputy, or by a citizen of the United States over 21 years of age, and allows the service when
made in this state to be shown by affidavit or certificate of the sheriff or deputy, or by
affidavit of the person making the service. When the service is made out of the state, it may
be proved by affidavit of any person showing that he has served the summons, and that at the
time of such service he was a citizen of the United States over 21 years of age. (Maynard v.
McCrellish, 57 Cal. 355; Horton v. Gallardo, 88 Cal. 581, 26 Pac. 375.)
No support is found in the language of the statute, or in the cases now cited, for the
statement of this court regarding section 517 of the practice act, briefly expressed in Pratt v.
Stone, 25 Nev. 365, that we think it evident from the above provisions of the statute that
service is not complete until after the expiration of six weeks from the date of personal
service out of the state when such service is made in lieu of publication, or in lieu of
publication and deposit in the postoffice when such deposit is also required. If, instead of
properly overruling that decision, it be allowed to stand as a construction controlling the
service and time for answering under the provisions relating to justice courts, I do not think it
ought to be extended or applied to actions in the district court.
Giving force to the ordinary meaning of the words used, the language in section 31 that the
order shall direct the publication to be made * * * for a period of six weeks, and that,
when publication is ordered, personal service of a copy of the summons and complaint out
of the state shall be equivalent to publication and deposit in the postoffice, means that
personal service out of the state shall be equivalent to publication and deposit in the
postoffice, and consequently equivalent to the publication indicated and directed by that
section, which is for six weeks. The statute does not state that service out of the state shall be
equivalent to one insertion of the summons in the newspaper, but means that such service
shall be equivalent to completed publication for that period. Hence it is not necessary after the
service out of the state to wait for six weeks as a period of publication, for no publication is
required when the defendant is served out of the state, and the very object of such service is to
avoid publication. As the service of summons shall be deemed complete in case of
publication at the expiration of six weeks from the first publication, and the service out of
the state is made equivalent to publication, such service is equivalent to full publication,
and makes the service complete.
Sections 24 and 25 provide that the time in which the summons shall require the
defendant to answer the complaint shall be ten days if the defendant is served in the
county in which the action is brought, twenty days if the service is made out of the
county, but in the district in which the action is brought, and forty days in all other cases.
summons shall require the defendant to answer the complaint shall be ten days if the
defendant is served in the county in which the action is brought, twenty days if the service is
made out of the county, but in the district in which the action is brought, and forty days in all
other cases. The conclusion is that as the statute makes the personal service of summons upon
the defendant out of the state after order of publication equivalent to publication, which
means completed publication, the defendant has the same time to answer after personal
service upon him out of the state that he would have after the close of the six-weeks' period of
publication, if he were served by publication, which is forty days. Hence in my judgment
section 31 previously had the same meaning which the legislature has explicitly given it by
the amendment of 1909, and the district court was right in its conclusion that personal service
out of the state was complete at the time it was made, and that defendant was allowed only
forty days thereafter in which to answer.
In the McBlain case, 77 Cal. 507, 20 Pac. 61, there was no question presented or
determined similar to the one here. The New York decisions were expressly based upon
section 137 of the code in that state, which does not appear in ours. (Market Nat. Bank v.
Pacific Nat. Bank, 89 N. Y. 399; Brooklyn Trust Co. v. Bulmer, 49 N. Y. 85.)
Subdivision 5 of section 135 of the New York code (Laws N. Y. 1864, Voorhis's Code, 8th
Rev. Ed.) contained a provision very similar to section 31 of our practice act, but section 137
in New York provided that: In the cases mentioned in section 135, the service of the
summons shall be deemed complete at the expiration of the time prescribed by the order of
publication.
Although our practice act states that, in cases of service by publication and deposit in the
postoffice, the service shall not be deemed complete until after the expiration of six weeks, it
does not contain any provision similar to section 135 in New York, nor any other specifying
that personal service of summons out of the state shall not be deemed complete at the time of
such service or until the expiration of the period prescribed by the order of publication.
or until the expiration of the period prescribed by the order of publication. The construction
given by the court in Pratt v. Stone, and followed by the chief justice in his opinion, would
result in legislating into our practice act a provision which it never contained, but which was
enacted as a part of the New York code.
In Dykers v. Woodward, 7 How. Prac. (N. Y.) 313, it was held that the time to answer
commences to run from the day of the personal service out of the state, and in the opinion by
Justice Roosevelt it is said: When, therefore, the code says that personal service of a copy
of the summons and complaint, out of the state is equivalent to publication,' it means
equivalent to complete service, so as to make the twenty days' limitation of the period to
answer commence running from the day of such service. The six successive weekly insertions
of the advertisement are not with the view of giving time to a distant party to answer, but to
increase the chances of his getting notice of the suit. Two or three insertions, the law
presumes, might be overlooked. It requires at least six at intervals of a week each to raise a
legal presumption of notice; and even then it is but a presumption. Still, for the purpose of
rendering the proceedings valid, it is allowed to have the effect of actual notice. Why, then,
should not personal service, which is actual notice, have the same effect?
In the past judgments may have been rendered upon default taken more than forty days
after order of publication and personal service out of the state without waiting an additional
period of six weeks for a publication which did not take place and was not required by the
terms of the practice act. If any questions regarding the validity of these judgments based
upon defaults entered in compliance with the evident requirements of the statute arise in the
future, they ought to be sustained, regardless of any decision heretofore rendered affecting the
practice in justice courts. Otherwise, grave consequences may ensue, divorces may be
declared void, marriages bigamous, children illegitimate, and property rights may be lost.
Protection from these results ought to be afforded when it may be attained by a fair
construction of the statute.
afforded when it may be attained by a fair construction of the statute.
Per Curiam:
A rehearing of this case was granted upon petition of amici curiae upon the ground that
the question involved was of public interest and affected, or might seriously affect, other
cases throughout the state that had gone to judgment.
Upon the former hearing of the case, while the court reached an agreement as to the
disposition of the appeal, practically no agreement was reached as to the law governing the
main question involved. The court, however, was agreed, at the time of the former decision in
this case, that, were it not for the decision of this court in the case of Pratt v. Stone, 25 Nev.
365, construing the provisions of section 517 of the practice act of 1869 (Comp. Laws, 3612),
which were, so far as the point here involved is conceived, identical with the provisions of
section 31, the section under construction in this case, that the construction placed upon the
section by the trial court would have been approved. The two sections referred to related to
the manner of the service of summons in the justice's court and the district court respectively.
A further consideration of the question convinces us that we ought not to apply the
decision in the Pratt case, supra, to the case at bar, for the reason we think the court reached
an erroneous conclusion in that case, and that such erroneous conclusion ought not to be
extended to another section of the practice act, even though the language of the two sections
are identical, where it appears that, to follow the Pratt decision, judgments in other cases
would or might be affected, to the great injury of innocent parties. We are now convinced that
for many years some of the district courts of the state have held to the view that personal
service of a summons upon a defendant outside of the state in the manner set forth in the
statute was equivalent to publication for the full period of six weeks and amounted to
completed service by publication; that the time for answer was forty days from such
service; and that many judgments have been entered in pursuance of this theory of the
law, which we are satisfied upon further consideration is the correct construction,
notwithstanding the rule applied in the Pratt case as to service of summons issued from a
justice's court.
full period of six weeks and amounted to completed service by publication; that the time for
answer was forty days from such service; and that many judgments have been entered in
pursuance of this theory of the law, which we are satisfied upon further consideration is the
correct construction, notwithstanding the rule applied in the Pratt case as to service of
summons issued from a justice's court.
In State v. Brown, 30 Nev. 495, we refused to apply to procedure in justices' courts a rule
of construction that had become the settled law as to procedure in district courts, because of
the harshness of the rule. While there might be greater reason for not applying to justice's
courts a harsh rule which had become the settled law by repeated decisions so far as district
courts were concerned, than would exist where it is sought to reverse the application of the
rule, nevertheless, in this case, the proper construction of the section of the statute in question
has always been a matter of some doubt and differences of opinion in the several district
courts of the state. This divergence of view led to an amendment of section 31 by the
legislature of 1909, specifically declaring that: When publication is ordered, personal
service, * * * out of the state, shall be equivalent to completed service by publication and
deposit in the postoffice, and the persons so served shall have forty days after said service to
appear and answer or demur. (Stats. 1909, p. 76.) This amendment, we think, only made
clearer what was intended by the legislature of 1869 in the original enactment of the section.
As an entirely new civil practice act went into effect January 1, 1912, and as the provisions
of the amendment of 1909 are embodied in the new act (Rev. Laws, 5027), the construction
here placed on section 31 of the old act will have the effect of removing any uncertainty as to
the validity of former judgments which rest upon service of summons on defendants residing
without the state, where the procedure was in accordance with the construction of section 31
here placed.
As to the question that there is no valid proof of service of summons on the defendant,
for the reason that the return fails to show that the person making the service was at the
time over 21 years of age as required by our statute, a further examination of the record
satisfies us that this objection is also without merit.
ice of summons on the defendant, for the reason that the return fails to show that the person
making the service was at the time over 21 years of age as required by our statute, a further
examination of the record satisfies us that this objection is also without merit.
Two affidavits of the serving party are attached to the summons, one following the
California form, which recites that the party serving was over the age of 18 years instead of
setting out that he was over 21 years of age, as required by our statute, and the other affidavit
recites the additional fact that the serving party was at the time he served the summons a
constable and deputy sheriff of the county of Los Angeles, State of California, the county and
state in which the service was made.
Section 28 of the old practice act (Comp. Laws, 3123) in force at the time the summons
was served, provides: The summons shall be served by the sheriff of the county where the
defendant is found, or by his deputy, or by any citizen of the United States over twenty-one
years of age; and, except as hereinafter provided, a copy of the complaint, certified by the
clerk or the plaintiff's attorney, shall be served with the summons. When the summons shall
be served by the sheriff or his deputy, it shall be returned with the certificate or affidavit of
the officer, of its service, and of the service of a copy of the complaint, to the office of the
clerk of the county in which the action is commenced. When the summons is served by any
other person, as before provided, it shall be returned to the office of the clerk of the county in
which the action is commenced, with the affidavit of such person of its service, and of the
service of a copy of the complaint.
Our attention has not been called to any decision holding for or against the authority of a
sheriff or deputy, as such officer, to make service of process in a foreign state, and we shall
not enter upon a consideration of that question. Presumptively, however, a sheriff, deputy
sheriff, or constable is a citizen of the United States and of lawful age.
The contention that the appellant waived any question as to the validity or sufficiency of
service by appearing generally and not specially to move to set the same aside, and the
question as to the right of an appeal from the order refusing to set aside the judgment,
will not now be considered, for the reason that these questions are not necessary to a
disposition of the case, and have been raised for the first time upon rehearing.
as to the validity or sufficiency of service by appearing generally and not specially to move to
set the same aside, and the question as to the right of an appeal from the order refusing to set
aside the judgment, will not now be considered, for the reason that these questions are not
necessary to a disposition of the case, and have been raised for the first time upon rehearing.
Counsel for respondent never filed a brief or orally argued the case.
In the affidavit of counsel for defendant, in support of the motion to set aside the
judgment, was the mere statement that affiant is familiar with the defense to be interposed in
this action, and he believes such defense to be good and meritorious. No other showing
appears by the record to have been made, and it cannot be said that the court erred in deeming
this insufficient.
The order heretofore made upon the appeal is vacated, and the order appealed from is
affirmed.
____________
33 Nev. 333, 333 (1910) Marymont v. Nevada State Banking Board
[No. 1855]
J. MARYMONT, Petitioner, v. NEVADA STATE BANKING BOARD, DENVER S.
DICKERSON, JEWETT W. ADAMS, A. B. WITCHER, S. W. BELFORD and
CHARLES S. SPRAGUE, as Members of the Nevada State Banking Board, and M. M.
VAN FLEET, as Secretary of Said Board, Respondents.
1. Banks and BankingRegulation by State.
Banking and other pursuits may be regulated in the public interest.
2. Banks and BankingRight to Engage in Banking.
The business of banking is a lawful business, which it is the inherent right of every citizen to engage in.
3. Constitutional LawRight to Acquisition and Protection of Property.
The constitution (art. 1, sec. 1) asserting that the acquisition and protection of property is an
inalienable right, means more than the right to protect property already owned by the citizen.
4. Constitutional LawBanking ActRight to PropertyDue Process of Law.
The act of March 24, 1909 (Stats. 1908-09, c. 191), the Banking Act, provided by section 2 that it
should be unlawful under penalty for any corporation, partnership, firm, or individual to engage in the
banking business except by means of a corporation duly organized for such purpose under the laws of the
state. Sections 5 and 6 created a state banking board to have general supervision of banks and banking.
Section 12 provided that it should be unlawful to engage in banking without obtaining a license from such
board, which license should issue only to corporations duly organized to do a banking business. Held, that
such act was in conflict with the constitution (art. 1, sec. 8), asserting rights to liberty, property, and
happiness; with article 1, section 8, guaranteeing due process of law, and with article 1, section 20, under
which rights not enumerated are saved to the people.
Original proceeding. Application by J. Marymont for writ of mandate against the Nevada
State Banking Board and another. Writ denied.
James T. Boyd for Petitioner:
The entire section in question is absolutely unconstitutional, and is in direct conflict with
the federal and state constitutions.
FirstIt attempts to deprive citizens, now engaged in the banking business, of their
property without due process of law, and
SecondIt attempts to restrict the citizen in his right to acquire, possess and protect
property. (Const. Nev., art. 1, secs. 1, 8; U. S. Const., 14th amendment; sec. 1; Fed. Stat., vol.
8, p. 39.)
The prohibition contained in section 12 of Stats. 1909, which license shall issue only to
corporations duly organized for the transaction of such business, is clearly unconstitutional
and void. The state has the power and right to regulate the banking business, and may make
such regulations as will protect the public and depositors, but the power to regulate does not
give the power to prohibit a citizen from following a lawful occupation, upon his complying
with such regulations as are lawful.
Banking is not a franchise over which the state can exercise absolute authority. It is simply
a business in which all persons may engage. It is not of such character as the law usually
looks upon as an incident of sovereignty, nor has it ever been considered as a part of
sovereignty. If the state, under the guise of a regulation, can say who shall engage in the
banking business, it can also say who shall engage in the hotel business or any other business.
Any attempt on the part of the state to do that is certainly an infringement upon the rights
retained by the American citizens when they formed their government, hence, banking may
be regulated, but it cannot be prohibited.
This court, in Ex Parte Pittman, 31 Nev. 43, in speaking of the banking business, clearly
and emphatically state that the business of banking is a lawful business in which it is the
inherent right of every citizen to engage will not be questioned. It is a business, however, with
which the general public welfare is most clearly identified. Money is said to be the very
lifeblood of the nation. The banking business has grown to be a part and parcel of our
financial system, and is so regarded by both the federal and state governments.
In that particular, the court follows the principle stated in the Bank of California v. San
Francisco, 142 Cal. 276. In that case, the court insists that banking is not a franchise; that
men have the same right to engage in it that they have to go into the grocery or dry goods
business. Therefore it is the inherent right of every citizen to engage in the banking business,
or any other lawful pursuit, for the purpose of acquiring property. The right of acquiring
property cannot be taken away from the citizen by legislation. (Am. & Eng. Ency. Law, vol. 3
pp. 792-793, 2d ed.; Ex Parte Pittman, 31 Nev. 43; South Dakota v. Scougal, 15 L. R. A.
477; Bank of California v. San Francisco, 142 Cal.276; First State Bank v. Shallenberger,
172 Fed. 999; Slaughterhouse Cases, 16 Wall. 36.)
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, and S. W.
Belford, for Respondents:
This court has repeatedly affirmed the doctrine that mandamus should not be granted to
compel a technical compliance with the strict letter of the law in disregard of its spirit. (State
v. Beck, 25 Nev. 111, citing Wiedwold v. Dodson, 95 Cal. 450; High, Ex. Rem., 3d ed. sec. 9;
State v. Board, 26 Kan. 419.)
Petitioner cannot avail himself of the 1907 act, because the bank commissioners as
constituted thereunder are not made parties to this action.
The case of First State Bank v. Shallenberger, 172 Fed. 999, cited by petitioner, does not
decide the question here involved.
In referring to the depositors' guaranty fund clause in the Nebraska act, which, aside
from the guaranty, is similar to the 1909 act of Nevada, the court said, at page 1002: It is
entirely clear that this act of the legislature does deprive the citizen of his right to engage in a
lawful business, except upon the terms that the state will take of his property, without his
consent, for the private use of others, and without due process of law. Also, at page 1004,
the court says: Neither has it been necessary to decide whether the state, as a matter of
regulation only, could restrict the business of banking to corporations, if the other
restrictions, unlike the guaranty fund provision, were all such as lawfully could be
imposed upon individuals engaged in that business."
to decide whether the state, as a matter of regulation only, could restrict the business of
banking to corporations, if the other restrictions, unlike the guaranty fund provision, were all
such as lawfully could be imposed upon individuals engaged in that business. The court, in
that case, then refers to State v. Woodmansee, 1 N. D. 246, 11 L. R. A. 420; Com. v.
Vrooman, 164 Pa. 306, 30 Atl. 217, and State v. Scougal, 3 S. D. 55, 15 L. R. A. 477.
The first two cases above mentioned uphold our contention and directly decide that the
state, in the exercise of its police power, has the right to compel the business of banking and
fire insurance to be transacted under a corporate charter obtained from the state.
The case last cited (3 S. D. 55; 15 L. R. A. 477) is also relied upon by petitioner, but an
examination of the constitution of South Dakota reveals a clause therein which is not
contained in the Nevada constitution. It is as follows: No law shall be passed granting to any
citizen, class of citizens, or corporations, privileges or immunities, which, upon the same
terms, shall not equally belong to all citizens or corporations.
Nevada has no such provision in her constitution, therefore the Scougal case, supra, is not
an authority in this case. As to the privileges and immunities clause contained in the
fourteenth amendment of the federal constitution, the court in the Vrooman case, supra, says:
The purpose and effect of this amendment has been discussed and declared by the United
States courts in many cases, and there ought to be no doubt upon the subject at this time. It
was aimed at discriminations made or attempted by the laws of any of the states, against
persons upon whom the laws of the United States conferred the rights and privileges of
citizenship. But the proper exercise of the police power by the several states is not within the
intent or the letter of the amendment. (30 Atl. 217.) See note, Louisville Ry. v. Louisville N.
Ry., 14 L. R. A. 579; Powell v. Penn, 127 U. S. 678; Slaughterhouse Cases, 16 Wall. 36.
Section 1 of the banking act of 1909 expressly declares the business of banking to be a
quasi-public business and subject to regulation and control by the state.
the business of banking to be a quasi-public business and subject to regulation and control by
the state.
Every presumption is in favor of the constitutionality of the act, because it expresses the
judgment of the legislative branch of the government upon that question. The question is not
controlled by common-law maxims. The police power must necessarily enlarge its range as
business expands and society develops. The business of banking has been declared to be in a
class by itself, and, as it is affected with a public interest, to be subject to regulation and
control by the state. Such has been the declaration of the legislative and judicial departments
of this state. (Stats. 1909, p. 251; Ex Parte Pittman, 99 Pac. 700; State v. State Bank and
Trust Co., 31 Nev. 456.)
Unless the statute in question violates some provision of the constitution, it must be
upheld.
In Ex Parte Boyce, 27 Nev. 332, this court uses the following language of the U. S.
supreme court: We are reminded by counsel that it is the solemn duty of the courts, in cases
before them, to regard the constitutional rights of the citizen against merely arbitrary power.
That is unquestionably true. But it is equally trueindeed, the public interests imperatively
demandthat legislative enactments be recognized and enforced by the courts, as embodying
the will of the people, unless they are plainly and palpably, and beyond all question, in
violation of the fundamental law of the constitution.
It is difficult to draw the line as to the extent and scope of the police power of a sovereign
state, but it may be safely argued that as the act in question is confined solely to a subject
which has been declared by two branches of the government to be affected with a public use,
and violates no express provision of the constitution, every intendment in its favor should be
indulged in by this court.
In State v. Woodmansee, supra, 11 L. R. A., 420, the court said: We have been unable to
find an authority, and we have searched diligently, which has ever questioned the right of the
legislature in the exercise of police power to regulate, restrain and govern the business of
banking."
to regulate, restrain and govern the business of banking.
See, also, the following cases where the constitutionality of like statutes has been assumed
without question: People v. Brewster, 4 Wend. 496; People v. Bartow, 6 Cow. 290; People v.
Utica Ins. Co., 15 Johns. 358; 8 Am. Dec. 243; Bristol v. Barker, 14 Johns. 205.
At common law banking is open to all persons, but the states have unquestioned authority
to forbid individuals or firms from engaging in banking unless they conform to the laws
relating thereto, and the exercise of this power is not a violation of one's personal liberty. (5
Cyc. 433.)
A statute will always be sustained by the courts if there is a reasonable doubt as to its
constitutionality. (Cooley, Con. Lim., 7th ed. 252; Lewis's Sutherland Stat. Con., sec. 82;
State v. Westerfield, 24 Nev. 29; Evans v. Job, 8 Nev. 343; State v. Parkinson, 5 Nev. 15.)
Petitioner asks for a writ directing the state banking board to issue a license permitting him
to engage as an individual in the banking business. The question presented is whether
ordinary banking by individuals may be prohibited by statutory enactment, while corporations
are allowed and authorized to conduct this business.
In the act of March 24, 1909 (Stats. 1908-09, c. 191), section 2 provides that: It shall be
unlawful for any corporation, partnership, firm, or individual to engage in or transact a
banking business within this state on and after the taking effect of this act, except by means of
a corporation duly organized for such purpose under the laws of this state; except agencies of
foreign corporations now doing a banking business in this state. * * * Any violations of the
provisions of this section shall subject the corporation, partnership, firm, or individual so
offending to a penalty of twenty-five ($25) dollars for each day of the continuation of such
offense, and be cause for the appointment of a receiver by the state banking board as
hereinafter provided, to wind up such banking business."
banking board as hereinafter provided, to wind up such banking business.
Section 5 creates the Nevada State Banking Board.
Section 6 provides that: Said board shall have general supervision and control of banks
and banking under the laws of this state, and no person or persons shall be permitted to
engage in or transact a banking business save corporations having complied with the
provisions of this act. * * *
Section 12 provides that: It shall be unlawful for any person or corporation to conduct a
bank or to engage in or transact a banking business in this state without having first obtained
a license from the state banking board in the manner hereinafter provided, which license shall
issue only to corporations duly organized for the transaction of such business.
Are these provisions in derogation of the state constitution? Article 1, sec. 1, provides that:
All men are, by nature, free and equal, and have certain inalienable rights, among which are
those of enjoying and defending life and liberty, acquiring and protecting property, and
pursuing and obtaining safety and happiness.
Section 8 provides that no person shall be deprived of life, liberty, or property, without
due process of law, and section 20 that: This enumeration of rights shall not be construed to
impair or deny others retained by the people.
There are only three cases, and these we will review later, which bear directly upon the
question as to whether under, or regardless of, an organic act with guaranties similar to the
ones contained in our constitution, the individual may be denied the privilege of engaging in
the business of commercial or ordinary banking. One of these opinions holds that he cannot
be denied this privilege. The other two carry a contrary conclusion, and cite decisions and
extracts from text-books based on cases which when properly distinguished do not give them
support because they relate to statutes repealed more than half a century ago, by which,
during the period the state banks as distinguished from the national banks issued
currency, the states limited to corporations the privilege of doing a banking business
which included the power to issue demand notes to circulate as money.
period the state banks as distinguished from the national banks issued currency, the states
limited to corporations the privilege of doing a banking business which included the power to
issue demand notes to circulate as money. As the control of the circulating medium is clearly
a government prerogative, which for obvious reasons may be denied to individuals, it was
properly held that these banks of issue in the different states before the general government
took over the control of the currency under the federal constitution could be limited to
corporations at the will of the legislature. These cases have little, if any, bearing upon the
question whether the legislature may take away the right of the individual to engage in other
kinds of banking, such as receiving and holding deposits with or without interest, the cashing
of checks, the issuing and discounting of drafts, and the loaning of money, which have long
pertained to the individual without being considered a government prerogative or subject to
monopoly or limitation to corporations. That the individual interest must yield to the general
welfare, and that banking and other pursuits may be regulated in the public interest, must be
acknowledged. (In re Boyce, 27 Nev. 330, 65 L. R. A. 47; Ex Parte Kair, 28 Nev. 425; Ex
Parte Pittman, 31 Nev. 56; Ex Parte Rickey, 31 Nev. 104.)
It is also conceded that the legislature may suppress any business or calling which is in
itself injurious and cannot be so regulated that it will not be detrimental to the public welfare;
and, while all occupations are subject to necessary or reasonable regulations and restrictions
for the prevention of injury to others, the citizen may not be denied the right to follow
ordinary vocations which are not injurious in themselves, or in any way detrimental when
properly regulated. All needful enactments may be passed for the protection and welfare of
the people as new conditions arise in the affairs of men. No good reason appears for
upholding as a police regulation a statute which confers no benefit to the public or any
portion of the community, and results only in injury by prohibiting citizens from following a
beneficial vocation.
tion. The legislature may regulate when regulation will protect, but may not suppress when
inhibition will injure the party pursuing the lawful vocation and proper regulation will
prevent injury to others.
In Ex Parte Pittman, 31 Nev. 43, 22 L. R. A. (N. S.) 266, we said: That the business of
banking is a lawful business in which it is the inherent right of every citizen to engage will
not be denied.
In First State Bank v. Shallenberger (C. C.) 172 Fed. 1000, the court stated: The banking
business is one of the ancient and ordinary occupations, and has been and is recognized as a
lawful business, not only in the State of Nebraska, but in all states of the Union, and in
general in all countries that have developed civilization and commerce. It has not been
regarded as a business of such harmful tendencies that society might entirely forbid its
exercise. * * * In the Slaughterhouse Cases, 16 Wall. 36, 116, 122, 21 L. Ed. 394, speaking
of that portion of the fourteenth amendment to the national constitution, Mr. Justice Bradley
said: This right to choose one's calling is an essential part of that liberty which it is the object
of the government to protect; and a calling, when chosen, is a man's property and right.
Liberty and property are not protected where these rights are arbitrarily assailed. * * * In my
view, a law which prohibits a large class of citizens from adopting a lawful employment, or
from following a lawful employment previously adopted, does deprive them of liberty, as
well as property, without due process of law. Their right of choice is a portion of their liberty.
Their occupation is their property.' In the case of Allgeyer v. Louisiana, 165 U. S. 578, 589,
17 Sup. Ct. 427, 431, 41 L. Ed. 832, the court quoted with approval from the remarks of
Justice Bradley, and said: The liberty mentioned in that amendment means not only the right
of the citizen to be free from the mere physical restraint of his person, as by incarceration, but
the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his
faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his
livelihood by any lawful calling, to pursue any livelihood or vocation, and for that purpose
to enter into all contracts which may be proper, necessary, and essential to his carrying
out to a successful conclusion the purposes above mentioned.' To the same effect are
Butchers' Union Co. v. Crescent Co., 111 U. S. 746, 764, 4 Sup. Ct. 652, 2S L. Ed. 5S5; In
the Matter of the Application of Peter Jacobs, 9S N. Y. 9S, 105, 50 Am.
livelihood by any lawful calling, to pursue any livelihood or vocation, and for that purpose to
enter into all contracts which may be proper, necessary, and essential to his carrying out to a
successful conclusion the purposes above mentioned.' To the same effect are Butchers' Union
Co. v. Crescent Co., 111 U. S. 746, 764, 4 Sup. Ct. 652, 28 L. Ed. 585; In the Matter of the
Application of Peter Jacobs, 98 N. Y. 98, 105, 50 Am. Rep. 636; People v. Marx, 99 N. Y.
377, 386, 2 N. E. 29, 52 Am. Rep. 34; City of Chicago v. Netcher, 183 Ill. 104, 55 N. E. 707,
48 L. R. A. 261, 75 Am. St. Rep. 93; People v. Steele, 231 Ill. 340, 83 N. E. 236, 14 L. R. A.
(N. S.) 361, 121 Am. St. Rep. 321; Cooley on Torts, page 277. At common law the business
of banking was regarded as one of the lawful occupations in which citizens might engage. In
the case of Bank of California v. San Francisco, 142 Cal. 276, 75 Pac. 832, 64 L. R. A. 918,
100 Am. St. Rep. 130, the court says: Admittedly, the mere right to do a banking business is
not a franchise in any sense of the word. It belongs to citizens generally, and is a common
right, in the same sense that the right to do a grocery or dry goods business is available to all
citizens, and no grant from the sovereign is essential to its existence. Any individual or any
number of individuals may, under such regulations as the state, in the exercise of its police
powers, may legally make, engage therein, without any grant from the state.'
In the Shallenberger case, the court in holding that the guaranty fund provision invalidates
the Nebraska act said that it was not necessary to decide whether the state could limit the
business of banking to corporations. But the decision itself, although the validity of statutes
providing for a guaranty fund has not yet been determined by the United States Supreme
Court, supports the contention that the citizen cannot be deprived of the privilege of engaging
in banking; for, if he cannot be required to contribute to a guaranty fund as a condition to
following the business, how can the legislature prohibit him entirely from pursuing the
occupation when it cannot even enforce such a regulation? In the opinion in Noble State
Bank v. Haskell, 22 Okl.
in Noble State Bank v. Haskell, 22 Okl. 84, 97 Pac. 605, sustaining the guaranty provisions of
the Oklahoma banking act, the court said: The question as to what regulations are proper and
needful is primarily for legislative decision, yet, when the police power is used to regulate a
business or occupation which in itself is lawful and useful to the community, the courts, if
called upon, must determine finally whether such regulations as may have been prescribed are
so far just and reasonable as to be in harmony with constitutional guaranties. (Republic Iron
& Steel Co. v. State, 160 Ind. 379, 385, 66 N. E. 1005, 62 L. R. A. 136.)
If the legislature can prohibit the individual from engaging in the banking business, as our
statute seeks to do, it is evident that it may also prohibit corporations from engaging in the
business, for a corporation, which is merely a creature of the law, can have no greater
fundamental rights than the individual, for whom the constitutional guaranties are directly
provided. Therefore, if both the individual and the corporation may be prohibited, this
business, so essential to the carrying on of commerce and trade, and so necessary to the
welfare of the state, may be entirely suppressed. The sustaining of this statute would be an
entering wedge and a precedent which would authorize further encroachments upon the rights
assured to our citizens by the constitution. If we should uphold as valid this act, denying to
individuals the right to embark in the banking business, and the next legislature should pass
another providing that corporations could not engage in that pursuit, we perceive no ground
upon which that act could be held invalid which would not apply to the present one. We have
different statutes regulating mining and providing for the safety of the men employed. The
desirability and validity of laws for the prevention of the spread of contagious diseases among
animals and certain pests which destroy agricultural crops are recognized.
If the next legislature should pass a law prohibiting individuals from engaging in the
business of mining and farming, and later in the session should pass another act providing
that corporations should not engage in either of these pursuits, there would be no reason
for holding such acts invalid which would not apply to the statute under consideration.
farming, and later in the session should pass another act providing that corporations should
not engage in either of these pursuits, there would be no reason for holding such acts invalid
which would not apply to the statute under consideration. If the argument in favor of this act
is good, the same would be sufficient to support legislative enactments prohibiting
individuals and corporations not only from engaging in banking, mining, farming, and the
raising of live stock, but from merchandising, keeping hotels, operating factories, and
pursuing other vocations. Qualifications, examinations, and regulations are prescribed for the
practice of law, medicine and dentistry. If the individual may be denied the right to engage in
the business of banking, may not the right to follow the various professions be limited to
corporations, or even denied to both individuals and corporations? If the state has the right to
prohibit the citizen from following ordinary pursuits, may not the legislature exercise a less
restrictive power, and either for a price or without charge farm out to individuals,
corporations, and monopolies the right to pursue the various vocations upon which the people
depend for their living and prosperity?
The constitutional provision that all men are, by nature, free and equal, and have certain
inalienable rights, among which are those of enjoying and defending life and liberty,
acquiring and protecting property, and pursing and obtaining safety and happiness, means
more than the protection of property already owned by the citizen. Most people rely for a
living upon their pursuit of the ordinary vocations, and the most affluent are dependent in a
large degree upon these. Comparatively few are possessed of such means that they will not
need to labor or to engage in the ordinary business callings. It would not be creditable for
these favored ones, while young and strong, to idle away their time and live as drones upon
the world. But, regardless of them, how are the great masses of the people to acquire property,
pursue happiness, and enjoy life and liberty unless they are permitted to engage in the
ordinary vocations which are not injurious in themselves, and are beneficial to the
individual and the community?
are not injurious in themselves, and are beneficial to the individual and the community? It is
quite as important that the people be free to enter these callings, and by their labor or
investment of money or use of property or conduct of business acquire property which will
enable them to obtain safety from want and acquire happiness as that the vested rights of the
wealthy be protected.
Any attempt of the legislature to prohibit the pursuit of these harmless and useful
vocations, or to restrict them further than necessary for the protection of the public or the
prevention of injury to other persons, is an encroachment upon the liberty and just rights of
the citizen. If this act can be held a valid exercise of legislative power, other laws may be
passed and sustained on the grounds urged in support of this statute, which would be a
discredit to a czar or absolute potentate, and which in the face of the constitutional provisions
for the protection of the citizen secured by the blood of our forefathers would deny to the
people the right to pursue honest, beneficial, and ordinary callings, and result in their injury
and distress. That incomparable judge of the human mind and heart said: You take my life
when you take the means whereby I live.
Under the most grinding tyranny, privileges became vested in the lords of France until the
peasant was prohibited to hunt on his own lands, to fish in his own waters, to grind at his
own mill, to cook at his own oven, to dry his clothes on his own machines, to whet his
instruments at his own grindstone, to make his own wine, his oil, and his cider at his own
press, or to sell his commodities at the public market. The subject was not allowed to set a
tub of water from the ocean to evaporate in order that he might have salt for his table. The
people complained that the taxes and exactions were so great that they could not obtain
enough to eat, and the reply from the sovereign was that they could eat grass. In the same year
that our own Declaration of Independence was declared, Louis XVI, under the fear of
impending revolution, in an edict giving freedom to trades and professions, after reciting the
contributions that had been made by the guilds and trade companies, stated that "it was
the allurement of these fiscal advantages undoubtedly that prolonged the illusion and
concealed the immense injury they did to industry and other infraction of natural right,"
and that "God in giving to man wants and desires rendering labor necessary for their
satisfaction conferred the right to labor upon all men, and this property is the first, most
sacred, and imprescriptible."
ing the contributions that had been made by the guilds and trade companies, stated that it
was the allurement of these fiscal advantages undoubtedly that prolonged the illusion and
concealed the immense injury they did to industry and other infraction of natural right, and
that God in giving to man wants and desires rendering labor necessary for their satisfaction
conferred the right to labor upon all men, and this property is the first, most sacred, and
imprescriptible.
In State v. Woodmansee, 1 N. D. 246, 46 N. W. 970, 11 L. R. A. 420, in a decision
rendered twenty years ago, the court sustained an act limiting banking to corporations, and
went to the extreme of holding that the legislature had the power, not only to regulate and to
restrict the business, but also to grant the right to engage in it to one class and to prohibit it to
others, or even forbid it altogether, and said that this power of the legislature had never been
questioned by the courts.
The late case of Weed v. Bergh, 141 Wis. 569, 124 N. W. 666, 25 L. R. A. (N. S.) 1217,
upholds as valid the statute in Wisconsin limiting the business of banking to corporations.
Notwithstanding the great regard we entertain for the opinions of the highest courts in
these two sister states, which have rendered the only opinions sustaining acts forbidding
individuals to engage in ordinary banking, we are unable to agree with their decisions or to
find anything in the cases they cite which really support the conclusions they reach. We
believe that through inadvertence they have misapplied to ordinary banking one or two cases
relating to insurance, and a few others bearing upon the restrictions and limitations which
long ago were properly held to pertain to banks that issued notes to circulate as money, a
government prerogative, when those institutions were under the control of the states.
As we distinguish these cases, Weed v. Bergh is without support, except by the decision in
State v. Woodmansee, which is, in turn, unsupported. In the Wisconsin opinion are cited
Meyers v. Bank, 20 Ohio, 282, which has no application, because it arose under an act of
January 27, 1S16, "to prohibit the issuing and circulating of unauthorized bank paper,"
and Commonwealth v. Vrooman, 164 Pa.
application, because it arose under an act of January 27, 1816, to prohibit the issuing and
circulating of unauthorized bank paper, and Commonwealth v. Vrooman, 164 Pa. 306, 30
Atl. 217, 25 L. R. A. 250, 44 Am. St. Rep. 603, and People v. Loew, 19 Misc. Rep. 248, 44
N. Y. Supp. 42, relate to statutes pertaining to insurance. There are reasons for limiting the
business of insuring to corporations which do not apply to ordinary banking. The business of
insuring does not appear to have been as commonly exercised by individuals as banking at the
time of the adoption of our constitutions, and we are not aware that any branch of the
insurance business was ever conducted in this state except by corporations. Especially with
life insurance, to which those cases did not apply, it would be desirable or necessary for the
protection of persons holding policies to have the business limited to corporations which
would be in existence and able to pay upon the death of the insured, which might not take
place for half a century after the demise of the insured, if the business could be followed by
individuals.
In the course of a vigorous dissenting opinion in the Vrooman case, Judge Dean said: Is
the business of fire insurance deleterious to the public? If so, the legislature may absolutely
prohibit it. But no one contends that it is. On the contrary, it is admitted it is to the advantage
of the public. The legislature admits this by expressly authorizing artificial persons to conduct
it. If such contracts be not injurious to the public, and may not be altogether prohibited, then
where is the authority to prohibit one class, natural persons, from entering into them, and
specifically empowering another and numerically a very much smaller class, artificial
persons, to make them? In so doing the state grants a monopoly in a particular business to a
particular class. * * * That in some states the legislature has restricted the business of banking
to corporations has no analogy to the case in hand. The banking intended to be restricted by
the New York act was issuing of notes, receiving of deposits, and discounting. In People v.
Utica Ins. Co., 15 Johns. (N. Y.)
358, 8 Am. Dec. 243, and Bristol v. Barker, 14 Johns. (N. Y.) 205, it was held that the act
was only a restraining and regulating act applying to associations of individuals; that, as to
them, to do a banking business they must have corporate authority; that an individual was not
prohibited from doing a banking business, except as to issuing banknotes. It has always been
held to be within the police power of the legislature to restrict the issuing of notes intended to
pass as money to corporations. It is a matter which concerns the entire public, who have no
opportunity, in the hurry of everyday business transactions of life, to ascertain the value of the
promise which is tendered as money.
In Weed v. Bergh the court admits that banking is a common-law right pertaining equally
to every member of the community; that it cannot be prohibited; that it may be regulated as
far as may be reasonably necessary to secure the public welfare and safety, but it must be true
regulation, not prohibition under the guise of regulation (1 Morse on Banks and Banking,
sec. 13.) The court based its opinion upon the conclusion that the private banker by engaging
in outside business ventures may subject his banking assets to the claims of creditors and
prejudice or destroy the remedies of bank depositors, and that, when he dies, the business
may have to be temporarily suspended for the purpose of probating the estate, and said: The
obtaining of a bank charter is made by the act practically a matter of course. Three adult
residents of the state may at any time associate together, execute the required articles and file
them, and the corporation is formed. The danger that any citizen who wishes to go into the
banking business will be unable to find two other adult residents who will be willing to join
in executing the written articles of incorporation is so small as to be negligible. People can do
banking as before, except that they must do it by means of a corporate organization. This is
regulation, not prohibition.
In view of the rights which the constitution guarantees specifically to the people, we are
unable to concur in the claim that the denial of the right to the individual to engage in
banking does not prohibit him from following the business because he may be able to
induce others to join him in forming a corporation.
claim that the denial of the right to the individual to engage in banking does not prohibit him
from following the business because he may be able to induce others to join him in forming a
corporation. The assertion that three adult residents may at any time form a corporation and
do business as before, except that they must do it by means of a corporate organization, and
that this is regulation and not prohibition, would apply with equal force to a law restricting
the business of brokerage in grain, cotton, bonds, stocks, and various other vocations to
corporations. That the corporation is a separate entity in law is everywhere recognized. It was
held in Bank of Augusta v. Earle, 13 Pet. (38 U. S.) 519, 10 L. Ed. 274, that, whenever a
corporation makes a contract, it is the contract of the legal entity, of the artificial being
created by the charter, but not the contract of the individual members, and that the only rights
it can claim are the rights which are given to it in that character, and not the rights which
apply to its members as citizens. Chief Justice Tancy, speaking for the Supreme Court of the
United States in that case, said: We are fully satisfied that the state never intended by its
constitution to interfere with the rights of purchasing and selling bills of exchange, and that
the opinion of the court does not refer to transactions of this description when speaking of
banking as a franchise.
No argument or words defining or masquerading prohibition as regulation can overcome
the fact that, if the act is enforced, the citizen will be prohibited from engaging in the banking
business as an individual, while the constitutional guaranties protect him as an individual, and
do not make an exception in favor of corporations. He may not wish to sacrifice his
personality or individuality in conducting the business, nor to importune others to join him,
even if assured of their ability and integrity, nor to entrust the control of his money or
property to others who would constitute the majority of the board of trustees or directors of
any corporation that could be formed. He may not desire to be burdened with the expense
and formality incidental to the conducting of business by corporations.
expense and formality incidental to the conducting of business by corporations.
We think the danger suggested, that the private banker may engage in other business and
become indebted to creditors so as to endanger depositors, may be avoided easily without
prohibiting the individual banker from doing business by statutes requiring him to have as
much in net assets in order to open a bank as corporations are required to have, and by
providing, under penalties as severe as the ones which apply to the embezzlement or
improper use of funds of incorporated banks, that the capital with which the private bank is
opened shall not be used for speculative purposes, or in any business other than that of the
bank, until it is closed and all depositors and creditors are paid, unless the capital is reduced
or withdrawn by consent of the banking board. The Indiana act requiring the net worth of the
individual members of a banking firm to be equal to at least double the amount of capital paid
into the bank was held valid. (State v. Richcreek, 167 Ind. 217, 77 N. E. 1085, 5 L. R. A. (N.
S.) 874, 119 Am. St. Rep. 491.)
By far the heaviest failures in this state have been of incorporated banks, and, as the law
existed before amendment, there was not as much liability on the part of the officers for
receiving deposits on the eve of a closing of these banks as would have attached to the receipt
of deposits by private bankers about to fail. (Ex Parte Rickey, 31 Nev. 83.)
Nor do we see that any great danger is likely to result to the public or the patrons of the
bank from the death of the private banker if the bank, under proper safeguards provided by
the legislature, and the supervision of the bank examiner and the banking board, has been
opened and operated on a sound basis and kept solvent, so that, upon the death of the banker,
the business may be continued or settled by surviving partners or by executors, special
administrators, trustees, or receivers acting under the supervision of the court. With proper
protection afforded the depositors and the public by statutory regulations, it is not
necessary, in our view, to prohibit the citizen from engaging in this commendable
business.
regulations, it is not necessary, in our view, to prohibit the citizen from engaging in this
commendable business.
In State v. Scougal, 3 S. D. 55, 51 N. W. 858, 15 L. R. A. 477, 44 Am. St. Rep. 756, the
most carefully considered of the three cases relating to the right of the legislature to restrict
ordinary banking to corporations, the court held that the individual could not be prohibited
from engaging in the business, and that the South Dakota act infringed three provisions of her
constitution, two of which are similar to sections 1 and 8 in our organic act. In the opinion it
is said: But, under this power, it is not competent for the state to prohibit the citizen from
carrying on any trade, occupation, or business that is not offensive to the community, or
injurious to society. The business may be regulated, but not prohibited. Mr. Tiedeman in his
excellent work on the Limitations of Police Power says: In order to prohibit the prosecution
of the trade altogether, the injury to the public which furnishes the justification for such a law
must proceed from the inherent character of the business. Where it is possible to conduct the
business without harm to the public, all sorts of police regulations may be instituted which
may tend to suppress the evil. License may be required, the most rigid system of police
regulations may be established, and heavy penalties may be imposed for the infraction of the
law; but, if the business is not harmful, the prosecution of it cannot rightfully be prohibited to
one who will conduct the business in a proper and circumspect manner. Such a one would be
deprived of his liberty without due process of law.' (Tiedeman, Pol. Powers, p. 290.) Again
the same author says: It has been demonstrated and satisfactorily explained in its application
to a sufficient number of parallel and similar cases, in order to lay it down as an invariable
rule, that no trade can be subjected to police regulation of any kind unless its prosecution
involves some harm or injury to the public or third persons, and in any case the regulation
cannot extend beyond the evil which is to be restrained. It has also been maintained, and I
think satisfactorily established, that no trade can be prohibited altogether, unless the evil
is inherent in the character of the trade, so that the trade, however conducted, and
whatever may be the character of the person engaged in it, must necessarily produce
injury upon the public or upon individual third persons.' {Id. p.
satisfactorily established, that no trade can be prohibited altogether, unless the evil is inherent
in the character of the trade, so that the trade, however conducted, and whatever may be the
character of the person engaged in it, must necessarily produce injury upon the public or upon
individual third persons.' (Id. p. 301.) It necessarily follows from the rules above laid down
that if a business is offensive to the community, or injurious to society, and is to be
prohibited, it must be prohibited as to all. * * * The government, under the guise of
regulation, cannot prohibit or destroy. It cannot deprive any citizen of his right to pursue a
calling, occupation, or business, not necessarily injurious to the community, who is willing to
comply with all reasonable regulations imposed upon it. It can never encroach upon the
liberty of the citizen or invade the rights of property protected by the constitution. (Re Jacobs,
98 N. Y. 98, 50 Am. Rep. 636.) By the act in question the state admits that banking is not of
itself injurious to the community, as it confers upon corporations that may be organized under
the act full power to carry on the business of banking. * * * The right of enjoying and
defending life and liberty, of acquiring and protecting property, and the pursuit of happiness'
includes the right to pursue any lawful calling, occupation, or business, and the right to
choose the means of acquiring property and the pursuit of happiness, not inconsistent with
constitutional provisions or the rights of others. The term liberty,' as used in the constitution,
does not mean mere freedom from arrest or restraint, but it means liberty in a broader and
more comprehensive sense. It means freedom of action; freedom in the selection of a
business, calling, or avocation; freedom in the control and use of one's property, so far as its
use is not injurious to the community, and does not infringe the rights of others; freedom in
exercising the rights, privileges, and immunities that belong to citizens of the country
generally; and freedom in the pursuit of any lawful business or calling selected by him.
Of but little value to the citizen could be these provisions of the constitution, if the state,
through the legislative power, could, at its mere will and pleasure, deprive him of his right to
pursue any lawful business or calling not offensive or injurious to the community, and which
does not interfere with the equal rights of others, and the right to pursue which he has derived
from the common law. * * * Judge Cooley says: What the legislature ordains and the
constitution does not prohibit must be lawful. But, if the constitution does no more than to
provide that no person shall be deprived of life, liberty, or property except by due process of
law, it makes an important provision on this subject, because it is an important part of civil
liberty to have the right to follow all lawful employments.' (Cooley, Torts, p. 277.) In these
constitutional provisions are found the guaranties to the citizen of his right to liberty, his right
to the pursuit of happiness, his right to pursue in his own way any lawful business or calling,
and his right to property. * * * Mr. Justice Andrews, in delivering the opinion of the court in
Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, says: The right to liberty includes the
right to exercise his faculties, and to follow a lawful avocation for the support of life.' The
case of Re Jacobs, 98 N. Y. 98, 50 Am. Rep. 636, involved the right of a citizen to pursue his
ordinary calling, of which the legislature by law sought to deprive him. * * * Mr. Justice Earl
in delivering the opinion of the court discussed very fully the powers of the legislature under
the constitution of New York, and the police power of the state. In speaking of liberty, as
used in the constitution, he says: So, too, one may be deprived of his liberty, and his
constitutional rights thereto violated, without the actual imprisonment or restraint of his
person. Liberty, in its broad sense, as understood in this country, means the right, not only of
freedom from actual servitude, imprisonment, or restraint, but the right of one to use his
faculties in all lawful ways, to live and work where he will, to earn his livelihood in any
lawful calling, and to pursue any lawful trade or avocation.' * * * People v. Marx, 90 N. Y.
377, 2 N. E. 29, 52 Am.
any lawful trade or avocation.' * * * People v. Marx, 90 N. Y. 377, 2 N. E. 29, 52 Am. Rep.
34, is another important case. * * * The power of the legislature over the business of the
citizen was again discussed by Rapallo, J. After quoting the sections of the constitution of
that state bearing upon the question, he says: These constitutional safeguards have been so
thoroughly discussed in recent cases that it would be superfluous to do more than to refer to
the conclusions that have been reached bearing upon the questions under consideration.
Among these no proposition is more firmly settled than that it is one of the fundamental
rights and privileges of every American citizen to adopt and follow such lawful industrial
pursuit, not injurious to the community, as he may see fit.' In Butchers' U. S. H. & L. S. L. Co.
v. Crescent City L. S. L. & S. H. Co., 111 U. S. 746, 4 Sup. Ct. 652, 28 L. Ed. 585, Mr.
Justice Field says that among the inalienable rights as proclaimed in the Declaration of
Independence is the right of men to pursue any lawful business or vocation, in any manner
not inconsistent with the equal rights of others, which may increase their property or develop
their faculties, so as to give them their highest enjoyment. The common business and callings
of life, the ordinary trades and pursuits, which are innocent in themselves, and have been
followed in all communities from time immemorial, must therefore be free in this country, to
all alike, upon the same terms. The right to pursue them without let or hindrance, except that
which is applied to all persons of the same age, sex, and condition, is a distinguishing
privilege of citizens of the United States, and an essential element of that freedom which they
claim as their birthright.' In the same case Mr. Justice Bradley says: I hold that the liberty of
pursuit, the right to follow any of the ordinary callings of life, is one of the privileges of a
citizen of the United States,' of which he cannot be deprived without invading his right to
liberty within the meaning of the constitution. * * * It will thus be seen that the citizen's
right to pursue any lawful business is more than a mere right.
seen that the citizen's right to pursue any lawful business is more than a mere right. It is
property that cannot be taken from him without due process of law.'
In Alabama a statute which made it a misdemeanor for an individual banker to discount
negotiable paper at a higher rate of interest than 8 per cent was declared to be unconstitutional
because this restriction could not be placed upon the individual banker when it did not apply
to incorporated banks. (Carter v. Coleman, 84 Ala. 256, 4 South. 151; Youngblood v.
Birmingham Trust Co., 95 Ala. 521, 12 South. 579, 20 L. R. A. 58, 36 Am. St. Rep. 245, 10
Am. & Eng. Ann. Cas. 904, note.)
In the carefully prepared note in 5 L. R. A. (N. S.) 875, it is said: This in Bank of Augusta
v. Earle, 13 Pet. 519, 596, 10 L. Ed. 274, 311, the court said that it was very clear that at
common law the right of banking in all its ramifications belongs to individual citizens, and
may be exercised by them at their pleasure. * * * The statement in the opinion in State v.
Richcreek that it is unquestionably settled that the sovereign authority of the state may
regulate and restrain the right of banking is also true, if restrain' be understood not to include
prohibit.' The question as to the power of a state to prohibit the business of banking by
individuals, and to confine such right to corporations exclusivelyin other words, to convert
what is conceded at common law to be a natural right into a franchisecannot be regarded as
settled by the authorities, except as to the particular banking privilege of issuing bills to
circulate as money.
In Ex Parte Boyce, 27 Nev. 329, 330, 65 L. R. A. 47, we stated: The right to acquire and
hold property guaranteed by our constitution is one of the most essential for the existence and
happiness of man, and for our purposes here we may consider it to be the cornerstone in the
temple of our liberties, and that it implies and includes the right to labor. * * * Broadly
speaking, the right to acquire and hold property, which presupposes the one to labor at all
ordinary pursuits, is subordinate to this greater obligation not to injure others, individually
or collectively, and to contribute and aid in the support of the government in all its
legitimate objects."
greater obligation not to injure others, individually or collectively, and to contribute and aid
in the support of the government in all its legitimate objects.
In Corfield v. Coryell, 4 Wash. C. C. 380, Fed. Cas. No. 3,230, Justice Washington
classed among the fundamental privileges of the citizen the enjoyment of life and liberty,
with the right to acquire and possess property of every kind, and to pursue and obtain
happiness and safety, subject, nevertheless, to such restraints as the government may justly
prescribe for the general good of the whole.
In the Slaughterhouse Cases, 83 U. S. 109, 21 L. Ed. 394, Justice Field said: This
equality of right, with exemption from all disparaging and partial enactments, in the lawful
pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the
United States. To them everywhere all pursuits, all professions, all avocations are open
without other restriction than such as are imposed equally upon all others of the same age,
sex, and condition. The state may prescribe such regulations for every pursuit and calling of
life as will promote the public health, secure the good order, and advance the general
prosperity of society, but, when once prescribed, the pursuit or calling must be free to be
followed by every citizen who is within the conditions designated, and will conform to the
regulations. In reference to monopolies he said: All such grants relating to any known trade
or manufacture have been held by all the judges of England, whenever they have come up for
consideration, to be void at common law as destroying the freedom of trade, discouraging
labor and industry, restraining persons from getting an honest livelihood, and putting it into
the power of the grantees to enhance the price of commodities.
In the same cases Justice Bradley said: And in my judgment the right of any citizen to
follow whatever lawful employment he chooses to adopt (submitting himself to all lawful
regulations) is one of his most valuable rights, and one which the legislature of a state cannot
invade, whether restrained by its own constitution or not.
invade, whether restrained by its own constitution or not. The right of a state to regulate the
conduct of its citizens is undoubtedly a very broad and extensive one, and not to be lightly
restricted. But there are certain fundamental rights which this right of regulation cannot
infringe. It may prescribe the manner of their exercise, but it cannot subvert the rights
themselves. (Allgeyer v. Louisiana, 165 U. S. 588, 17 Sup. Ct. 427, 41 L. Ed. 832.)
In Lawton v. Steele, 152 U. S. 136, 14 Sup. Ct. 501, 38 L. Ed. 385, the court said: The
legislature may not, under the guise of protecting the public interests, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon lawful occupations.
In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937 (Ex Parte Kair, 28
Nev. 426), the Supreme Court of the United States held that an act limiting employment in
bakeries to sixty hours a week and ten hours a day was an arbitrary interference with the
freedom of the individual to contract and to work longer as guaranteed by the fourteenth
amendment to the federal constitution. It is said in the opinion: This interference on the part
of the legislatures of the several states with the ordinary trades and occupations of the people
seems to be on the increase. In the Supreme Court of New York, in the case of People v.
Beattie, Appellate Division, First Department, decided in 1904 (96 App. Div. 383, 89 N. Y.
Supp. 193), a statute regulating the trade of horseshoeing, and requiring the person practicing
such trade to be examined, and to obtain a certificate from a board of examiners and file the
same with the clerk of the county wherein the person proposes to practice such trade, was
held invalid, as an arbitrary interference with personal liberty and private property without
due process of law. The attempt was made unsuccessfully to justify it as a health law. The
same kind of a statute was held invalid (Re Aubry) by the Supreme Court of Washington in
December, 1904, 36 Wash. 308, 78 Pac. 900, 104 Am. St. Rep. 952. The court held that the
act deprived citizens of their liberty and property without due process of law, and denied
to them the equal protection of the laws.
the act deprived citizens of their liberty and property without due process of law, and denied
to them the equal protection of the laws. It also held that the trade of a horseshoer is not a
subject of regulation under the police power of the state as a business concerning and directly
affecting the health, welfare, or comfort of its inhabitants; and that, therefore, a law which
provided for the examination and registration of horseshoers in certain cities was
unconstitutional, as an illegitimate exercise of the police power. The Supreme Court of
Illinois in Bassette v. People, 193 Ill. 334, 62 N. E. 215, 56 L. R. A. 558, also held that a law
of the same nature, providing for the regulation and licensing of horseshoers, was
unconstitutional as an illegal interference with the liberty of the individual in adopting and
pursuing such calling as he may choose, subject only to the restraint necessary to secure the
common welfare. See, also, Godcharles v. Wigeman, 113 Pa. 431, 437, 6 Atl. 354; Low v.
Rees Printing Co., 41 Neb. 127, 145, 24 L. R. A. 702, 43 Am. St. Rep. 670, 50 N. W. 362.
If the legislature of the State of New York cannot prohibit individuals from following the
baking business more than ten hours per day, we are unable to perceive how the legislature in
this state can entirely prohibit individuals from following the banking business. Although the
latter vocation is more importantly connected with the arteries of trade, both are beneficial
and for the public benefit, as well as for the profit of the persons who engage in these
vocations, and both are subject to all necessary regulations. In the Lochner case the supreme
court said that the provisions in the act for the inspection of premises, for separate
washrooms, height of ceilings, for cleanliness, and for the health of the employees were
reasonable and valid. Some of the states have laws against the use of alum and other injurious
ingredients in baking powders. Because some unworthy or selfish persons may, if not
regulated, conduct the baking or the banking business to the detriment of the public in order
to enhance their own profits, is no sufficient reason for denying to all individuals the right to
engage in vocations which are beneficial when conducted under proper regulations.
denying to all individuals the right to engage in vocations which are beneficial when
conducted under proper regulations.
In section 61 of the banking act it is declared that the holding of any section or part
thereof to be void or ineffective for any cause shall not be deemed to affect any other section
or part thereof. From this it would appear that the legislature was in doubt as to the validity
of some of the provisions. It is conceded that the banking act of 1907 was repealed. As the
present act provides for the issuance of licenses to transact banking to corporations only, and
nowhere directs the state banking board to issue a license to an individual, there is no
authority for the issuance of any license to petitioner. Until provision is made by the
legislature, he may conduct the banking business without a license, and without being liable
to the penalties sought to be imposed by the act upon individuals for engaging in that
business.
The petition for the writ is denied.
Norcross, C. J., concurring:
I concur in the judgment. Upon the question of the power of the legislature, as a police
regulation merely, to restrict the business of banking to corporations, I express no opinion.
Whether we regard the provisions of the act regulating the business of banking which restrict
such business to corporations as unconstitutional or not, nevertheless there is no duty
imposed by law upon the banking board to issue to any person as an individual a license as
prayed for in the petition.
____________
33 Nev. 361, 361 (1910)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
October Term, 1910
____________
33 Nev. 361, 361 (1910) Ex Parte Shelor
[No. 1924]
Ex Parte SHELOR
1. FinesSuspending CollectionPower of Governor.
In view of the constitution (art. 5, sec. 14) providing that the governor, justices of the supreme
court, and attorney-general, or a majority of them, of whom the governor shall be one, may remit fines
and forfeitures, commute punishments, and grant pardons, section 13, providing that the governor can
suspend the collection of fines and forfeitures and grant reprieves for not exceeding sixty days dating
from the time of conviction, authorizes the governor to suspend the collection of fines for only sixty days,
and not indefinitely, as this would create a conflict between the two sections.
2. Constitutional LawConstruction.
As an aid to determining the meaning of a provision of the constitution intended by its framers, the
proceedings and debates in the constitutional convention may be considered.
3. FinesSuspending Fines.
The governor having under the constitution (art. 5, sec. 13) power to suspend a fine for only sixty
days, his order attempting to make an indefinite suspension is void ab initio, and not valid for sixty days.
Original proceeding. Application of Douglass Shelor for a writ of habeas corpus.
for a writ of habeas corpus. Denied, and petitioner remanded to custody.
Horatio Alling, for Petitioner:
The sole question raised by the demurrers is: Do the words of section 13, article 5, of the
state constitution, for a period not exceeding sixty days dating from the time of conviction,
qualify the first clause of the section: The governor shall have power to suspend the
collection of fines and forfeitures.'
I. As in oral argument, so here, the petitioners at the outset invite the court's attention to a
few well-recognized rules of constitutional construction in the light of which the question
involved should be considered and determined.
FirstIf interpretation will reveal the true sense of the text, construction will not be
resorted to unless there be contradiction to be avoided.
For a clear announcement of this rule, see Cooley, Const. Lim., 6th ed. pp. 51, 52. On
pages 69 and 70, Mr. Cooley quotes approvingly from United States v. Fisher, 2 Cranch. 358,
as follows: Where the law is plain and unambiguous, whether it be expressed in general or
limited terms, the legislature should be intended to mean what they have plainly expressed,
and consequently no room is left for construction.
See, also, the opinion of Justice Johnson in Newell v. People, 7 N. Y. 9, 97; and Lewis v.
Doron, 5 Nev. 399, 412.
When unambiguous, express words control. (Bowland v. Hildreth, 26 Cal. 161: Smith v.
Thursley, 28 Md. 244; Minn. P. Ry. Co. v. Silbey, 2 Minn. 13; Donaldson v. Harvey, 3 Har. &
McH. 12.)
SecondIf ambiguity, absurdity or contradiction justify a resort to the processes of
construction, it should be attempted only in the light of certain principles of construction, a
few of which are:
It is not to be supposed that any words have been employed without occasion, or without
intent that they should have effect as part of the law.
should have effect as part of the law. Effect is to be given, if possible, to the whole
instrument, and to every section and clause. If different portions seem to conflict, the court
must harmonize them, if practicable, and must lean in favor of a construction that will render
every word operative, rather than one which may make some words idle and nugatory.
(Cooley, Const. Lim., 6th ed., p. 72; Am. & Eng. Ency. Law, vol. 6, p. 924, note 8.)
This rule is applicable with special force to written constitutions, in which the people will
be presumed to have expressed themselves in careful, measured terms, corresponding with
the immense importance of the powers delegated, leaving as little as possible to implication.
It is scarcely conceivable that a case can arise where a court would be justified in declaring
any portion of a written constitution nugatory because of ambiguity. (Cooley, Const. Lim.,
6th ed., p. 72.)
Where courts are called on to apply the rules of construction to a constitution, their
discretion is more restricted than in the construction of statutes. (Greencastle Tp. v. Block, 5
Ind. 557; Walcot v. Wigdon, 7 Ind. 44; Varney v. Justice, 86 Ky. 596.)
A constitution not to be interpreted by rules governing construction of private writing, but
is to be studied in the light of ordinary language. (Cornice v. Cornice, 54 Pa. St. 255.)
Words in a constitution having a definite adjudicated meaning will be taken in that sense.
(Daily v. Swope, 47 Miss. 383; Jenkins v. Ewin, 8 Heisk. 456.)
The presumption is that the same meaning attaches to a given word wherever it occurs in a
constitution. (Manly v. State, 7 Md. 135; People v. Purdy, 2 Hill, 36; Green v. Weller, 32
Miss. 650.)
Debates of constitutional convention less conclusive of property construction of
constitution than are legislative debates of the proper construction of a statute. (Cooley,
Const. Lim. p. 80.)
In construing a constitution the court cannot inspect the journal of the constitutional
convention for the purpose of ascertaining whether the framers of the constitution
intended to make a different provision than that expressed in clear unambiguous terms in
the instrument itself.
pose of ascertaining whether the framers of the constitution intended to make a different
provision than that expressed in clear unambiguous terms in the instrument itself. (State v.
New Orleans, 35 La. Ann. 532; Taylor v. Taylor, 10 Minn. 107; City of Beardstown v. City of
Virginia, 86 Ill. 34; Funkhouser v. Spahr, 102 Va. 306.)
This court has said that such debates are neither authoritative nor of any binding effect.
(Lewis v. Doron, 5 Nev. 409.)
In case of a conflict appearing between a general and a special provision, the special
provision will prevail. (Page v. Allen, 58 Pa. St. 338; Warreck v. Shuman, 5 Tex. 441; Smith
v. Grayson, 18 Tex. Civ. App. 153.)
II. With these canons of construction applicable to the question under consideration fully
in mind, it is contended by the petitioners that no construction of this section of the
constitution (sec. 13, art. 5) is called for, nor, indeed, permitted, for the reason that it is a
mere matter of interpretation to determine the plain meaning of the section.
FirstThe plain meaning of the words used, the grammatical construction of the section,
together with the punctuation employed, makes unmistakable the thing meant, viz: (a) that
the governor shall have power to suspend the collection of fines and forfeitures; (b) and grant
reprieves for a period not exceeding sixty days, dating from the time of conviction, for all
offenses, except in cases of impeachment.
SecondThe word suspend as used in the first line of section 13 implies an indefinite
suspension, because to hold otherwise and bring it in company with the word reprieve
under the sixty-day qualification would make it synonymous with reprieve and take all
meaning and significance out of the first clause of section 13, in violation of that rule of
construction treated heretofore, in this brief. If the sixty-day qualification applies to the first
clause of the section, then the words suspend the collection of fines and forfeitures mean
nothing more or other or different from the words grant reprieves * * *
for all offenses, except of cases in impeachment. If the people are presumed to have intended
something, and, too, something definite, when they used the words of that first clause, then
we must take the sixty-day qualification to apply only to reprieves alone, as, indeed, both
the grammatical arrangement and punctuation of that part of the section would indicate. We
cannot, under the rule cited, render this first clause idle and nugatory.
ThirdThe word suspend, as used in the first line of section 13, must be taken to imply an
indefinite suspension, because the same word as used in the fifth line of the section clearly
indicates that the governor's order of suspension there provided for shall be for an indefinite
period, in that it requires a further order from the governor, in case the legislature fails to
dispose of the case, to make definite the time for executing the sentence. This first order is
indefinite of necessity as to the period of suspension, because it requires a further order to
make it definite.
The rule of construction indicated herein requires that the same meaning be given to this
word suspend as used in the first line of the section as is manifest in its use in the fifth line
of the same section.
FourthThe rule of construction referred to requires that a word having a judicial or
adjudicated meaning shall be taken in that sense and given that meaning where no different
meaning is evidently intended.
The courts have held that the words suspension of sentence imply an indefinite
suspension, as contradistinguished from reprieve, which signifies no more than a
postponement of execution of sentence to a time certain. (In re Buchanan, 146 N. Y. 264;
People v. Court of Sessions, 141 N. Y. 288.)
III. But it is urged by the respondent that construction must be resorted to, not by reason of
ambiguity or absurdity, but because of such an interpretation, although in plain accord with
the words used in their arrangement, is contradictory to and in conflict with the general
provisions of the next section, being section 14 of article 5.
In meeting this contention, petitioners insist that there is neither contradiction nor conflict
between the interpretation of section 13, as above contended for, and the provisions of section
14, for the following reasons:
FirstThe indefinite suspension of fines and forfeitures provided for by section 13 is not
tantamount to the remission of such fines and forfeitures which is permitted under section 14.
Such indefinite suspension is recognized by the authorities as being equivalent to a
conditional pardon only, while a remission amounts to a pardon absolute. The latter expunges
the sentence; the former does not affect the sentence itself, but goes merely to its execution.
Upon the recall or revocation of such suspension nothing is required to put the sentence into
immediate execution. (State v. Hunter, 124 Iowa. 569.)
The Indiana constitution, sec. 17, art. 5, gives to the governor the same power which is
given to the board of pardons by section 14 of our constitution. The power to parol is not
mentioned in the Indiana constitution, and yet in Woodward v. Murdock, 124 Ind. 439, the
court held that the general power to pardon included the power to conditionally pardon, or
parol, which is the same thing. See, also, Arthur v. Craig, 48 Iowa, 264, to the same effect. In
both of these cases it is held that the simple recall of a conditional pardon or parol leaves the
sentence as fully effective and capable of execution as it was before its suspension. So it must
follow that an indefinite suspension of the collection of a fine is not tantamount to a
remission of such fine.
It clearly appears that it was the purpose as to fines and forfeitures that the governor may
indefinitely suspendthat is, pardon conditionally; and that the board of pardons may
remitthat is, pardon absolutely.
SecondThis special power in a limited class of minor cases so given to the governor to
conditionally pardon is in harmony with the policy of the law as recognized in that class of
cases which permit trial courts to indefinitely suspend the sentence of one convicted of crime.
The great weight of authority, as well as the better reasoning, will be bound to support
the power of courts to indefinitely suspend.
reasoning, will be bound to support the power of courts to indefinitely suspend. The
following cases are cited in that connection: Commonwealth v. Dowdican, 115 Mass. 133,
136; Weaver v. People, 33 Mich. 296; State v. Addy, 43 N. J. Law, 113; Ex Parte Williams,
26 Fla. 310; Gibson v. State, 68 Miss. 241; State v. Crook, 115 N. C. 760; People v. Graves,
31 Hun, 382; People v. Flynn, 106 N. Y. Supp. 925; People v. Webster, 36 N. Y. Supp. 745.
In most of these cases the right of the trial court to suspend the imposition of a sentence
indefinitely is said to be inherent and to arise out of a recognized public policy. Even where
such power is expressly given by statute, it is recognized as adding nothing to the power
which at common law inheres in such courts.
The consideration of this matter of the power of courts to indefinitely suspend imposition
of sentence has value here chiefly as indicating the recognized principle of public policy
which foundations it. If there is such recognized principle of public policy as to criminal
procedure generally, it may well be said to be the impelling reason for vesting a similar power
of indefinite suspension of execution of sentence in the governor in a limited class of minor
cases, such as those resulting in fines and forfeitures. The grant of such special limited power
to the governor as a part of the general pardon scheme of the state in recognition of such
principle of public policy could not be said to be in conflict with the general purpose
indicated in section 14 of article 5. And if it was, the people had a right to specially except
this class of cases from the general plan.
ThirdThat the first clause of section 13 was intended as a special limited power to
conditionally pardon in case of fines and forfeitures is further indicated by the fact that the
governor is not required to report his action in such cases to the legislature. He is required to
communicate to the legislature, at the beginning of every session, every case of fine or
forfeiture remitted, or reprieve, or pardon, or commutation granted. This report relates to
what he has done under section 13 by way of granting reprieves, as well as what the board
of pardons has done by way of remitting fines and forfeitures and granting pardons and
commutations.
way of granting reprieves, as well as what the board of pardons has done by way of remitting
fines and forfeitures and granting pardons and commutations. But he is not required to report
the suspensions of fines and forfeitures by him. This indicates that fines and forfeitures were
regarded as forming a class by themselves and as being of such minor significance that their
final disposition, so far as conditional pardon was concerned, could be trusted with the chief
executive for the exercise of that limited clemency in accordance with recognized principles
of public policy.
IV. But it is contended by petitioners that the interpretation claimed by respondent would
make section 13 self-contradictory, for if the sixty-day qualification must be read with the
first clause it would result in a contradiction of terms. The governor shall have the power to
suspend the collection of fines and forfeitures, * * * for a period not exceeding sixty days,
dating from the time of conviction. Now we know that many, and indeed most, forfeitures
are civil and not criminal determinations. In such cases there would be no time of
conviction: and therefore no date from which the sixty days might run.
Neither are forfeitures of a civil character offenses, as they would have to be classed if
the suspension clause must be taken with and as a part of the reprieve clause.
Bouvier treats the word forfeiture under the following heads: Forfeiture by alienation
(civil); forfeiture for crimes (criminal); forfeiture for treason (criminal); forfeiture by
nonperformance of conditions (civil); forfeiture by waste (civil); forfeiture of wages (civil);
forfeitures of vessel (civil).
Anderson gives as instances of civil forfeitures: Alienation contrary to law;
nonperformance of condition; waste; bankruptcy.
If it be true that the word forfeitures embraces civil as well as criminal forfeitures, then
it is clear that the first clause must stand alone and apart from the second clause if we would
avoid a manifest conflict and contradiction of terms.
V. Great stress has been laid by the respondent upon the debate over this section in the
constitutional convention. The discussion of this section was participated in by five members
of the convention only, out of a total membership of thirty-nine. It is indicative, therefore, of
the sentiments of those five members only. What reason is there for assuming that the other
thirty-four agreed with them. It was proposed to strike out the comma after the word
forfeiture for the purpose of making the sixty-day qualification qualify the first clause. But
it was not done. Is it not inferrable that the majority desired it to stand as it was, and were
satisfied to let Mr. Nourse think that it did not affect the sense of the section, so that it pass as
it stood?
But, in any event, it was the people and not the convention who adopted this constitution,
and what right have we to presume that the people ever knew anything about these
illuminating debates? In fact, they are never published in time for the people to see them
before voting on the proposed measure.
VI. As to any possible contention by respondent that the pardon power does not include
the right to interfere with a sentence imposed for contempt of court, see the following cases:
Rapalje on Contempt, sec. 162; State v. Sanvinet, 24 La. Ann. 119; Ex Parte Hickey, 4 S. &
M. (Miss.) 751; Sharp v. State, 102 Tenn. 9; In re Mason, 43 Fed. 510; In re Muller, 17 Fed.
Cas. No. 9,911; Cyc., vol. 9, p. 61; Am. & Eng. Ency. Law, vol. 24, p. 568. There is but one
case to the contrary, and that (a Texas case) turns upon the form of their constitution, the
section concerning pardons beginning in all criminal cases.
R. C. Stoddard, Attorney-General, William Woodburn, Jr., and C. R. Lewers, for
Respondent.
Per Curiam:
This is an original proceeding in habeas corpus. The petitioner, Douglass Shelor, together
with one J. W. Connella, were cited for contempt of court by Hon. W. H. A. Pike, one of the
judges of the District Court of the Second Judicial District of Washoe County, State of
Nevada, for having published a certain false and defamatory article impugning the honor
and integrity of said court.
Second Judicial District of Washoe County, State of Nevada, for having published a certain
false and defamatory article impugning the honor and integrity of said court. After a regular
hearing the petitioner was convicted and adjudged guilty of contempt of court and sentenced
by said district court to be imprisoned in the county jail of Washoe County for the term of
two days, and further penalizing Petitioner Shelor to pay a fine of $400, and Petitioner
Connella a fine of $100, and for failure to pay said fines petitioners to remain in jail until
such time as the fines were paid at the rate of $2 per day. On the 2d day of July, 1910, a
warrant of commitment issued out of said district court directed the sheriff of Washoe County
to arrest the petitioners. In compliance with said order the petitioners were duly arrested and
committed to the county jail of Washoe County.
On the 2d day of July, 1910, Hon. D. S. Dickerson, lieutenant and acting governor of the
State of Nevada, issued the following executive order: State of Nevada, Executive Chamber.
Whereas, a petition has been filed in the office of the Governor of the State of Nevada,
praying for the suspension of the fine imposed upon Douglass Shelor, who, on the second day
of July, A. D. 1910, under and by virtue of a judgment made and entered in the District Court
of the Second Judicial District of the State of Nevada, in and for the County of Washoe, State
of Nevada, was fined in the sum of four hundred ($400) dollars, after having been convicted
of contempt of said court; and, whereas, it appears that justice will be subserved by the
suspension of the collection of said fine: Now, therefore, in consideration of the premises,
and by virtue of the power and authority vested in me, by and under the provisions contained
in section 13 of article 5 of the Constitution of the State of Nevada, I, Denver S. Dickerson,
Lieutenant and Acting Governor of the State of Nevada, do hereby suspend the collection of
said fine, as aforesaid for an indefinite period. Signed and dated at Carson City, Nevada, this
second day of July, A. D. 1910. D. S.
second day of July, A. D. 1910. D. S. Dickerson, Lieutenant and Acting Governor of Nevada.
Attest: W. G. Douglass, Secretary of State. [Seal.]
A similar executive order, in behalf of J. W. Connella, was also issued as of the same date
and served on the sheriff of Washoe County, who refused to honor the same.
On the 3d day of July, 1910, the said executive orders were served upon the sheriff of
Washoe County, who, upon the advice of his legal adviser, William Woodburn, Jr., district
attorney of Washoe County, refused to pay any heed whatever to said executive orders,
because of the advice of said district attorney to the effect that the lieutenant and acting
governor of the state had no authority whatever to issue said orders, and that said orders were
void. Having served the two days' imprisonment prescribed by the order of the court, the
petitioners, Connella and Shelor, failed and refused to pay the respective $400 and $100 fines
in compliance with the orders of the court, and were retained in the county jail by the sheriff
of Washoe County pursuant to the order of the court which provided that for the failure to pay
the fines aforesaid the petitioners should be confined in the county jail at the rate of $2 per
day for every dollar of the fine unpaid. On the 12th day of July, 1910, petitions for writs of
habeas corpus, in behalf of Connella and Shelor, were regularly filed in this court praying for
the release of petitioners on the ground that they were illegally restrained of their liberty,
because of the failure of the sheriff of Washoe County to recognize the executive orders of
the lieutenant and acting governor, above quoted, suspending the fines.
All of the questions involved in the present applications for writs of habeas corpus may,
for the purposes of determination, be resolved into the query of whether or not the lieutenant
and acting governor of the state had the authority to issue the executive orders suspending the
collection of the fines imposed by the order of the court. Or, in other words, has the governor
of the State of Nevada the authority to indefinitely suspend the collection of fines and
forfeitures under the constitution or any law in this state?
of Nevada the authority to indefinitely suspend the collection of fines and forfeitures under
the constitution or any law in this state?
Upon behalf of petitioners, it is contended such authority is vested in the governor by
section 13 of article 5 of the constitution of Nevada, which reads as follows: Sec. 13. The
governor shall have the power to suspend the collection of fines and forfeitures, and grant
reprieves for a period not exceeding sixty days, dating from the time of conviction, for all
offenses, except in cases of impeachment. Upon conviction for treason, he shall have power
to suspend the execution of the sentence until the case shall be reported to the legislature at its
next meeting, when the legislature shall either pardon, direct the execution of the sentence, or
grant a further reprieve. And if the legislature should fail or refuse to make final disposition
of such case, the sentence shall be enforced at such time and place as the governor, by his
order, may direct. The governor shall communicate to the legislature, at the beginning of
every session, every case of fine or forfeiture remitted, or reprieve, pardon, or commutation
granted, stating the name of the convict, the crime for which he was convicted, the sentence,
its date, and the date of the remission, commutation, pardon, or reprieve. In short, it is
contended by petitioners that the words in line 3 of section 13, namely, for a period not
exceeding sixty days dating from the time of conviction, do not qualify the first clause of the
section, viz: The governor shall have the power to suspend the collection of fines and
forfeitures.
Before proceeding to a determination of these questions, it will be profitable to refer to a
few of the cardinal and recognized rules applicable to an interpretation or construction which
should guide a court in determining the true intent and meaning to be expressed on the
subject in controversy by the framers of our constitution.
The Supreme Court of Nevada, in the case of State v. Doron, said: "In construing a
constitution the thing to be sought is the thought expressed."
Doron, said: In construing a constitution the thing to be sought is the thought expressed.
(State v. Doron, 5 Nev. 399; Newell v. People, 7 N. Y. 97.)
It is also a cardinal rule, where it is necessary to interpret or construe parts of a
constitution, wherein a conflict of opinion has arisen as to the true intent and thought
expressed as desired to be understood and conveyed by the framers of the constitution, to read
the clauses in question in the light of the whole constitution.
The Supreme Court of New York, in the case of Newell v. People, said: Whether we
consider an agreement between parties a statute, or a constitution, with a view to its
interpretation, the thing which we are to seek is the thought which it expresses. To ascertain
this, the first resort in all cases is the natural signification of the words employed, in the order
of grammatical arrangement in which the framers of the instrument have placed them. If, thus
regarded, the words embody a definite meaning, which involves no absurdity and no
contradiction between different parts of the same writing, then that meaning, apparent on the
face of the instrument, is the one which alone we are at liberty to say was intended to be
conveyed. In such a case there is no room for construction. That which the words declare is
the meaning of the instrument, and neither courts nor legislatures have a right to add or to
take away from that meaning. (Newell v. People, 7 N. Y. 9-97.)
The Supreme Court of the United States, in Prigg v. Pennsylvania, 16 Pet. (U. S.) 539, 10
L. Ed. 1060, said: No court of justice can be authorized so to construe any clause of the
constitution as to defeat its obvious ends when another construction, equally accordant with
the words and sense thereof, will enforce and protect them. (Prigg v. Pennsylvania, 16 Pet.
(U. S.) 612, 10 L. Ed. 1060.)
Cooley on Constitutional Limitations states: It is not to be supposed that any words have
been employed without occasion, or without intent that they should have effect as part of the
law.
effect as part of the law. Effect is to be given, if possible, to the whole instrument, and to
every section and clause. If different portions seem to conflict, the court must harmonize
them, if practicable, and must lean in favor of a construction that will render every word
operative, rather than one which may make some words idle and nugatory. (Cooley, Const.
Lim., 6th ed. 72.)
The Supreme Court of the United States, in laying down a cardinal rule which should
guide courts in a proper construction of constitutional provisions, said: If the general
purpose of the instrument is ascertained, the language of its provisions must be construed
with reference to that purpose and so as to subserve it. (Legal Tender Cases, 12 Wall. (U. S.)
531, 20 L. Ed. 287.)
In the light of these cardinal principles of construction, let us review section 13 of our
constitution, claimed by petitioners to give the governor power to indefinitely suspend the
collection of fines and forfeitures, and in the light of the succeeding section of our
constitution, entitled Who may remit fines and grant pardons, which reads as follows:
Sec. 14. The governor, justices of the supreme court, and attorney-general, or a major part
of them, of whom the governor shall be one, may, upon such conditions and with such
limitations and restrictions as they may think proper, remit fines and forfeitures, commute
punishments, and grant pardons, after convictions in all cases, except treason and
impeachments, subject to such regulations as may be provided by law relative to the manner
of applying for pardons.
To our minds a simple reading of these two sections together, which are the only sections
in the constitution of Nevada which refer to the power to remit fines or grant pardons, we are
unquestionably led to the conclusion that the governor has no authority whatever to suspend
a fine for a greater period than sixty days. The power to remit a fine absolutely and to grant
pardons is vested, by the constitution of this state, in a board of pardons, consisting of the
governor, the justices of the supreme court, and the attorney-general, and a majority of
these designated officers, of whom the governor shall be one, is the only power by which
a fine or forfeiture can absolutely be suspended, punishment commuted, or absolute
pardon granted.
pardons, consisting of the governor, the justices of the supreme court, and the
attorney-general, and a majority of these designated officers, of whom the governor shall be
one, is the only power by which a fine or forfeiture can absolutely be suspended, punishment
commuted, or absolute pardon granted. It will be observed, section 13 of the constitution of
Nevada simply gives the governor the power to suspend the collection of fines and
forfeitures and grant reprieves for a period not exceeding sixty days, dating from the time of
conviction in all cases except cases of impeachment. To give to the contention of petitioners
the construction that the governor has authority to remit a fine indefinitely would, in our
judgment, be in variance with the plain words of the constitution and in total conflict with the
succeeding section, which vests the power positively and unequivocally to remit fines and
grant pardons, etc., in the board of pardons, which was specifically created for these purposes.
The legislature, in plain, unambiguous, and unmistakable terms, vested the power to
pardon and remit fines in a board of pardons, consisting of the governor, justices of the
supreme court, and attorney-general. Had they wished to have vested this power in the
governor alone, or to have vested this power of remitting fines absolutely in the governor,
they would have so stated. The construction placed upon section 13 of article 5, by the
petitioners, giving the governor the power of suspending the collection of fines and
forfeitures for an indefinite period, if allowed to prevail, would create a direct conflict of
authority with the board specially created and endowed with this same power in the
succeeding section of our constitution, quoted heretofore in this opinion, and is violative of
the following cardinal rule of constitutional construction and interpretation: A construction
which raises a conflict between parts of a constitution is not admissible, when by any
reasonable construction they may be made to harmonize. (Am. & Eng. Ency. Law, 926.)
An indefinite suspension of a fine, such as made in the executive orders of the lieutenant
and acting governor in the present cases, is substantially in effect a remission of the fines.
(State v. Strauss, 49 Md. 288; Neal v. State, 104 Ga. 509, 30 S. E. 858, 42 L. R. A. 190, 69
Am. St. Rep. 175; In re Flint, 25 Utah, 338, 71 Pac. 531, 95 Am. St. Rep. 853; United States
v. Wilson (C. C.) 46 Fed. 748; In re Strickler, 51 Kan. 700, 33 Pac. 620; Ex Parte
Clendenning, 22 Okl. 108; 1 Okl. Cr. 227, 97 Pac. 650, 19 L. R. A. (N. S.) 1041, 132 Am. St.
Rep. 628; Gray v. State, 107 Ind. 177, 8 N. E. 16; State v. Voss, 80 Iowa, 467, 45 N. W. 898,
8 L. R. A. 767; In re Markuson, 5 N. D. 180, 64 N. W. 939; Commonwealth v. Maloney, 145
Mass. 205, 13 N. E. 482.)
The only construction to be placed on these clauses in the constitution, as the plain,
unambiguous words of that instrument indicate, and as the framers of our constitution
desired, is to limit the power of the governor to suspend a fine for a period of sixty days, and
by this construction so limiting the power of the governor we find section 13 in complete
harmony with the succeeding section, which expressly confers upon the board of pardons
with the power to remit fines and forfeitures, etc. To construe the section otherwise would be
to construe the intention of the framers of our constitution to give the governor the identically
same power with regard to the remission of fines as it in clear and unmistakable language
gave to the board of pardons, thereby creating a conflict between the powers as to who should
have the right to grant a remission of fines.
While it is true that the proceedings and debates of the constitutional convention are not
binding authority on courts in interpreting or construing the terms of a written constitution,
yet we are of the opinion they are a valuable aid in determining the purposes and true
meaning of the provisions of the constitution as intended by its framers. (Moore v. District
Court, 30 Nev. 458-471; Chesapeake R. Co. v. Miller, 19 W. Va. 420; Wisconsin Central R.
Co. v. Taylor County, 52 Wis. 37, 8 N. W. S33; Clark v. People, 26 Wend. {N. Y.)
N. W. 833; Clark v. People, 26 Wend. (N. Y.) 599; People v. New York Cent. R. Co., 24 N.
Y. 485; State v. Barnes, 24 Fla. 153, 4 South. 560; People v. Harding, 53 Mich. 481, 19 N.
W. 155; People v. Coleman, 4 Cal. 54, 60 Am. Dec. 581; Springfield v. Edwards, 84 Ill. 643;
Higgins v. Prater, 91 Ky. 6, 14 S. W. 910: State v. Doron, 5 Nev. 399.) To this end, let us
momentarily refer to the constitutional debates, where this very question now at issue arose
during the discussion before this clause of the constitution was adopted, and it will be seen
that our construction is borne out by the expressions of opinion made on the floor of the
constitutional convention, and completely harmonizes these two sections of the constitution,
which, if otherwise construed, as contended by petitioners, would be in conflict with each
other.
In the constitutional convention, section 13 being under consideration, the following
debate was had:
Mr. Brosnan: I move to amend this section by striking out the words, to suspend the
collection of fines and forfeitures.' I do not like to give that power to any single man.
Mr. Johnson: I think it will not be found that this section invests the executive with that
extraordinary power. It will be seen by a close examination of the section that it does not
propose to invest the executive with the power of pardoning at all, but he is to constitute one
of a board which is invested with that power. Now, the object of this and the succeeding
sections, and the extent to which they go, is merely this: That until such time as the pardoning
board can meet to consider any given case, it shall be within the power of the executive to
suspend the enforcement of sentenceto suspend the collection of fines and forfeitures, and
to grant reprieves, for a period not exceeding sixty days.' Then, after such suspension, the
pardoning power is lodged in this pardoning board. I had the honor of submitting this section
to the former convention, and I then conceived it quite improper that the executive should
have the extraordinary power of absolutely pardoning any one, and for the strong reason
that the responsibility should not rest upon one man alone.
the extraordinary power of absolutely pardoning any one, and for the strong reason that the
responsibility should not rest upon one man alone. This portion of the section only operates to
confer a power of suspension until such time as the pardoning board can pass upon the case,
and I think the gentleman from Storey (Mr. Brosnan) will see the propriety of that provision.
Mr. Nourse: Was it intended that the sixty days' limitation should apply also to the matter
of fines and forfeitures?
Mr. Johnson: I think the language can bear no other construction.
Mr. Nourse: Then I think the word to' should be stricken out where it occurs before the
word grant,' so as to read, and grant reprieves,' etc.
Mr. Brosnan: Upon examination of the section, I see that the gentleman from Ormsby is
rightthat the power here granted is merely to postpone sentence. I, therefore, withdraw my
amendment. But I am not satisfied with the section yet. It says: The governor shall
communicate to the legislature, at the beginning of every session, every case of fine or
forfeiture remitted, or reprieve, pardon or commutation granted.' Now, if a forfeiture is
remitted, it is blotted out forever. If these things are to be done by the governor, there is no
use, it seems to me, in applying to any ultimate power, stating the name of the offender, the
character of the offense, and what is to be, or has been done, in regard to such offense.
Mr. Hovey: I would suggest that the gentleman refer to the next section, by which the
pardoning board is to be established.
Mr. Brosnan: Well, the language here is, nevertheless, inappropriate. For I hold that the
word remit' implies to blot out entirely. It says the governor shall communicate every case
of fine or forfeiture remitted,' etc.
The Chairman: The chair begs leave to suggest that the pardoning power is exercised by
the board, and the governor is merely required to report their action to the legislature.
governor is merely required to report their action to the legislature.
Mr. Johnson: That is it, exactly. And I think the recollection of the gentleman from Storey
(Mr. Brosnan) will serve him in that particular. We thought, in the last convention, that the
governor would be the proper person upon whom to devolve the duty of reporting to the
legislature the official action of the board of pardons, of which he is ex officio a member.
Mr. Nourse: I think a careful examination of the first few lines of the section will show
that, as it at present stands, the power of the governor is unlimited, for the suspension of fines
and forfeitures, at all events. In order to make sure of this matter, I suggest that we strike out
the word to' after forfeiture, and.'
Mr. Banks: I hope that will be done, and that we shall strike out the comma after the word
forfeitures' also.
Mr. Nourse: No, I think that is not necessary. The meaning is plain, if we take out the
word to.' I move to strike out the word to.'
The question was taken on Mr. Nourse's amendment, and it was agreed to. No further
amendment being offered, the section was adopted.
The gentlemen taking part in this debate were among the most able and prominent
members of the constitutional convention; Messrs. Johnson and Brosnan later serving as
justices of the Supreme Court of Nevada, and Mr. Nourse as attorney-general of this state.
The governor not having the power to indefinitely suspend the payment of a fine, the order
of the lieutenant and acting governor, attempting to make an indefinite suspension of the fine
imposed on petitioner by a court of justice in the solemn and sacred administration of its
affairs, was unwarranted, and is totally void and of no effect. The order, being in excess of the
power of the governor under the constitution, was void ab initio, and cannot be considered as
valid for a period of sixty days, the time which a fine may be suspended under certain
conditions by an executive order, as contended for by counsel for petitioner.
certain conditions by an executive order, as contended for by counsel for petitioner.
No contention having been made that the confinement of the petitioner was unlawful, for
any reason other than that heretofore considered, and no valid reason having been shown why
the petitioner should be discharged, the application for such discharge is denied, and the
petitioner is ordered forthwith into the custody of the sheriff of said Washoe County to be by
him confined in the county jail until the judgment and sentence of said district court is fully
complied with, and that upon his so being placed in custody that his bondsmen in this
proceeding be relieved of any further liability.
It is so ordered.
____________
33 Nev. 380, 380 (1910) Ex Parte Connella
[No. 1923]
Ex Parte CONNELLA
Original Proceeding. Application of J. W. Connella for a writ of habeas corpus. Denied,
and petitioner remanded to custody.
Horatio Alling, for Petitioner.
R. C. Stoddard, Attorney-General, William Woodburn, Jr., and C. R. Lewers, for
Respondent.
Per Curiam:
This is an original proceeding in habeas corpus. The same question of law is presented as
in the case of Ex Parte Shelor (No. 1924, this day decided). For the reasons stated in that
case, the application for the discharge of the petitioner, J. W. Connella, is denied, and the
prisoner is ordered forthwith into the custody of the sheriff of said Washoe County to be by
him confined in the county jail until the judgment and sentence of the said district court is
fully complied with, and that upon his being so placed in custody his bondsmen in this
proceeding be relieved of any further liability.
It is so ordered.
____________
33 Nev. 381, 381 (1910) Nicholson v. Comins
[No. 1933]
HENRY C. NICHOLSON, Appellant, v. H. A.
COMINS, Respondent.
1. ElectionsPrimary ElectionsCanvassing BallotsIrregularity.
Mere irregularity of the election officers in canvassing the ballots at a place other than the polling
place will be disregarded under primary election law (Stats. 1909, c. 198), section 1 providing that the
law shall be liberally construed so that the will of the electors shall not be defeated by any informality or
failure to comply with its provision in respect to conducting the election or certifying its result.
Appeal from the District Court of the Ninth Judicial District of the State of Nevada, White
Pine County; Thos. L. Mitchell, Judge.
Primary election contest by Henry C. Nicholson against H. A. Comins. From an order
dismissing the contest, contestant appeals. Affirmed.
Anthony Jurich and Samuel Belford, for Appellant.
Chandler & Quayle, for Respondent.
Per Curiam:
At the primary election held on the 6th day of September, 1910, the above-named
appellant and respondent were opposing candidates for the Republican nomination for the
office of county commissioner of White Pine County for the long term. From the canvass of
the returns by the board of county commissioners, it appeared that the respondent, Comins,
received 290 votes and that the appellant, Nicholson, received 285 votes. The board of county
commissioners directed that a certificate of nomination be issued to the said H. A. Comins as
the nominee of the Republican party for the office mentioned. Within five days after the
canvass of such vote, the said appellant, Nicholson, filed in the District Court of the Ninth
Judicial District in and for White Pine County an affidavit and complaint, under the
provisions of sections 29 and 30 of the act relating to primary elections {Stats.
and 30 of the act relating to primary elections (Stats. 1909, p. 273), contesting the nomination
of the said Comins to said office. The proceedings came on regularly to be heard before said
court, Hon. Thomas L. Mitchell, district judge, presiding, and judgment was entered in favor
of defendant Comins.
The only question upon the merits relates to the right of the respondent, Comins, to have
counted the votes of Preston election precinct in said county, in which precinct ten votes were
cast for Comins and two votes for Nicholson. The appellant contends that the entire vote of
this precinct should be excluded because of certain irregularities upon the part of the election
officers of said precinct. The matter was heard below upon an agreed statement of facts, and
it is upon those facts that the appellant seeks a reversal of the judgment. The schoolhouse in
Preston precinct had been duly fixed as the polling place for such precinct. The other
necessary facts to be considered in a determination of the merits of this case are the
following: That the board of election of said Preston voting precinct, duly closed the polls at
6 o'clock p. m. on the 6th day of September, A. D. 1910, at the Preston schoolhouse, and
thereupon had their supper brought to them at said polling place. That when the said board
had finished their suppers, and were ready to proceed with the counting of the ballots that had
been cast at said election they were approached by a committee of the young men of the
precinct, who then and there inquired of them whether or not they would go elsewhere to
count the ballots, in order that they, the young people, might have the said schoolhouse to
hold a dance in that evening. That said election board thereupon examined the election laws
to ascertain whether they could legally repair to another place to count the ballots, and in their
judgment, finding nothing therein to prevent their so doing, and desiring not to arbitrarily
stand in the way of the enjoyment of the young people, they thereupon locked the ballot box,
with all the votes that had been cast contained therein, and, taking said ballot box and the
poll book, official register, and other election supplies, they then and there repaired to the
house of Daniel Nicholas, situate about three blocks from the said schoolhouse.
and, taking said ballot box and the poll book, official register, and other election supplies,
they then and there repaired to the house of Daniel Nicholas, situate about three blocks from
the said schoolhouse. Before departing, they announced, without any formality, however, to
the said committee, and to the bystanders, that they were going to the house of said Nicholas
to count the ballots, and no other announcement was made. That the house of said Daniel
Nicholas is regarded by the people of the district as a sort of public resort, said Nicholas
being unmarried and having no family, and possessing a large number of books, periodicals,
and other reading matter, and many of the people of Preston are accustomed in the evening,
on Sundays, and on holiday occasions to assemble at the home of said Nicholas to talk over
matters of common interest and to read. That, upon arriving at the house of said Nicholas, the
said board unlocked the ballot box and began forthwith to count the ballots therein contained.
That the doors of the house of the said Nicholas were left open during the whole time that the
count was going on, and bystanders and electors of said precinct, as well as the said
constable, were present during all of the time said count was going on, and until after the
result of the election in said precinct was duly declared, and said board did not at any time
prevent any one from being present at the count or keep anyone out of the room in which the
count was proceeding, but permitted all who desired so to do to witness the same; and said
count was at all times conducted in an open, public manner, in the presence of bystanders as
aforesaid, until the same was completed and the result duly declared. * * * It is further agreed
that the said board of election received the votes, retained possession of the ballot box, and
other election supplies and equipment correctly and accurately canvassed the votes cast at
said election, and in all other respects complied with the legal requirements in connection
therewith, saving and excepting the single claimed violation of the election laws in the way of
adjourning from said schoolhouse to said residence of said Nicholas as aforesaid for the
purpose of counting the said votes.
as aforesaid for the purpose of counting the said votes. It is further agreed that the said
adjournment was made by said board of election in good faith, and, if such amounted to any
violation or infraction of the election laws, that such violation was so made by said board
under a bona fide mistaken belief as to what the election law requirements were. It appears
from the foregoing that there was no actual fraud committed by the election officers of said
precinct, but, upon the contrary, it is agreed that the votes of said precinct were correctly and
accurately canvassed.
Counsel for appellant has cited a number of cases holding that the removal of the ballot
box and the canvass of the ballots at some place other than that designated as the polling
place was a sufficient cause to reject the entire vote of the precinct. All of these cases relate to
general elections. We need not, we think, determine what would have been the effect of the
action of the election officers of the Preston precinct had this been a general election. Section
1 of the act relating to primary elections among other things provides: This statute shall be
liberally construed so that the real will of the electors shall not be defeated by any informality
or failure to comply with all provisions of law in respect to either the giving of any notice or
the conducting of the primary election or certifying the results thereof.
If we were to hold with counsel for the appellant, the real will of the Republican electors
of White Pine County would, we think, be defeated, for it is admitted that the result would
have been the same had the election officers canvassed the vote at the place designated by the
board of county commissioners for the holding of the election. We think it was the intention
of the legislature by this paragraph of the primary election law to make a more liberal rule in
determining questions relating to the regularity of primary elections than those recognized as
essential to preserve the integrity of general elections. Where it is conceded, as in this case,
by the parties to the controversy that the irregularity upon the part of the election officers did
not as a matter of fact work any injury whatever to the contestant, we are bound to hold
under the rule laid down in the statute and the agreed facts that the returns of the
precinct in question ought not to be rejected.
tion officers did not as a matter of fact work any injury whatever to the contestant, we are
bound to hold under the rule laid down in the statute and the agreed facts that the returns of
the precinct in question ought not to be rejected.
It is unnecessary to determine other questions raised including those of jurisdiction, as the
result to the parties in interest would be the same, however they might be determined.
The order appealed from dismissing the contest is affirmed.
____________
33 Nev. 385, 385 (1910) Sherman v. Southern Pacific Co.
[No. 1820]
C. E. SHERMAN, Respondent, v. SOUTHERN
PACIFIC COMPANY, Appellant.
1. JuryGround for ChallengeUnited in Business.
The relation of landlord and tenant between a juror and a party authorizes the sustaining of a
challenge to a juror under Comp. Laws, 3259, subsec. 3, making it ground for challenge for cause to a
juror that he is united in business with either party.
2. Appeal and ErrorHarmless ErrorSustaining Challenge to Juror.
Any error in sustaining a challenge to a juror is harmless if no objectionable persons are on the jury as
finally constituted.
3. CarriersInjuries to PassengerComplaintNegligence.
The complaint alleging injury to plaintiff while a passenger on defendant's train, through the
derailment thereof, caused by the negligence of defendant and its servants, is sufficient, without pointing
out the specific facts going to establish the negligence; a prima facie case of negligence being made out
by showing the derailment.
4. DamagesPersonal InjuriesSufferingEvidence.
A witness may testify to the manifestations of pain he saw plaintiff exhibit while in a hospital because
of the injury for which he sued.
5. WitnessesCross-Examination.
A conductor of defendant who in an action for injury to a passenger from derailment of a train has
testified for the carrier that, immediately after the accident, he made an investigation of the railroad bed,
cars, etc., and was unable to come to a conclusion as to the cause of the accident, may, to test his
knowledge as to how thorough an examination he made, be asked as to whether or not the smoker was
more broken or its occupants more frequently injured than in any other cars.
6. Appeal and ErrorHarmless Error.
Allowing a witness, who had testified to making an examination immediately after the derailment of a
train to be asked on cross-examination as to whether or not the smoker was more broken or its occupants
more frequently injured than in other cars was harmless; his answer being that he did not know.
7. WitnessesCross-Examination.
The roadmaster who, in an action against a carrier for injury to a passenger from derailment of a train,
had testified for defendant as to the perfect condition of the road, and gone into detail with reference to
the amount of work done on the roadbed, the material used, and when the rails were put down, was
properly allowed on cross-examination to be asked why it was necessary to put heavier rails down in a
certain year, to which he answered that it was on account of the increase of weight of the rolling stock
and the loads; plaintiff who contended the improvements had not kept pace with the increase of business,
having the right, if he could, to shake witness's testimony by cross-examination so long as he confined it
to the subject-matter brought out in the direct examination.
8. TrialArgument of CounselInference From Absence of Witnesses.
Permitting counsel for plaintiff in an action for injury to a passenger from derailment of a train to
draw an inference in his argument that because the engineer and conductor of the train were not called or
their absence explained their testimony would have been adverse to defendant was not error.
9. EvidenceOpinionsSpeed of Train.
A nonexpert may testify to the speed of a train.
10. CarriersInjuries to PassengerNegligenceEvidence.
It is incumbent on the carrier in an action for injury to a passenger from derailment of a train to repel
by satisfactory proof every imputation of the slightest negligence.
11. CarriersDuty to Passengers.
The carrier owes to a passenger the duty to exercise the highest practical degree of care, skill, and
foresight in the selection and use of suitable cars, motive power, appliances, and servants, and in the
proper construction of its roadbed and track, and the operating and running of its train.
12. CarriersInjury to PassengerNegligenceEvidence.
The derailment of the car in which a passenger is riding is prima facie evidence of the carrier's
negligence, and it is its duty to know and show the facts.
ON PETITION FOR REHEARING
1. Appeal and ErrorReviewHarmless Error.
Where, on the trial of an action against a railroad for injuries to a passenger by collision, plaintiff's
attorney in his argument inadvertently referred to the nonattendance of witnesses for defendant, when, in
fact, they were present and testified, it is no ground for reversal, where the statement is
withdrawn and defendant failed to account for the accident to the satisfaction of the
jury, and to overcome the prima facie presumption of negligence which arises from
the derailment of the car in which plaintiff is riding.
testified, it is no ground for reversal, where the statement is withdrawn and defendant failed to account for
the accident to the satisfaction of the jury, and to overcome the prima facie presumption of negligence
which arises from the derailment of the car in which plaintiff is riding.
2. CarriersPresumption of NegligenceDerailment of Car.
A presumption of negligence arises against a carrier immediately on plaintiff proving that he was injured
by the derailing of the car in which he was riding, and it is for the jury to determine from the evidence in
rebuttal as to whether defendant sufficiently overcame this presumption.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Washoe County; John S. Orr, Judge.
Action by C. E. Sherman against the Southern Pacific Company. Judgment for plaintiff.
Defendant appeals. Affirmed. Petition for rehearing. Denied.
Lewers & Henderson, and Frank Thunen, for Appellant.
Cheney, Massey & Price, and Smith & Fink, for Respondent.
This action was instituted on the 28th day of September, 1907, in the District Court of the
Second Judicial District of the State of Nevada in and for Washoe County, to recover from
the defendant the sum of $20,000 for personal injuries sustained by plaintiff by reason of the
derailment of one of defendant's trains near Deeth, Nevada, on which the plaintiff was
traveling en route from Ogden, Utah, to Tonopah, Nevada, on the 22d day of January, 1907.
It appears from the transcript that the respondent, a miner by occupation, 40 years of age,
and in perfect health, purchased a railroad ticket from the Southern Pacific Company in
Ogden, Utah, to Tonopah, Nevada. When about a mile east of Deeth, in the State of Nevada,
the seven cars behind the express left the track. Respondent was in the smoker, which, owing
to the derailment, was thrown over an embankment, turning on its side, and from the
wreck respondent emerged with injuries, which, as alleged, crippled him for life.
was thrown over an embankment, turning on its side, and from the wreck respondent emerged
with injuries, which, as alleged, crippled him for life. On account of these injuries sustained
by reason of the wreck, and the suffering respondent was forced to undergo in a temperature
registering 20 degrees below zero at the time of the derailment, and other physical sufferings
endured by respondent by reason of the accident, upon the case being tried before the court,
sitting with a jury, the respondent was awarded a verdict in the sum of $15,000. The
defendant interposed a motion in the trial court to set aside the verdict and for a new trial
upon the grounds: First, excessive damages appearing to have been given under the influence
of passion and prejudice; second, insufficiency of evidence to justify the verdict; third, that
said verdict was against law; fourth, errors in law occurring at the trial and excepted to by the
defendant; fifth, misconduct of the jury by which defendant was prevented from having a fair
trial. The motion was denied, and the defendant prosecutes this appeal from the final
judgment and order.
Aside from the specifications of insufficiency of the evidence to sustain the verdict, there
are thirty-five separate assignments of error in the proceedings of the trial court. We will
consider those assignments of error, which are urged as reversible errors, in the order in
which they are presented.
In the selection of the jury, appellant assigns that the court erred in sustaining the
challenges of plaintiff to the jurors, H. H. Clark and S. H. Wheeler, upon the ground that the
relation of landlord and tenant existed between defendant and said jurors. It is maintained by
counsel for appellant that nowhere in our statute which sets forth what circumstances shall be
sufficient to disqualify a juror otherwise competent from sitting in any particular case is there
a ground of challenge because of the relationship of landlord and tenant, which makes such
relation a disqualification.
The third subdivision of section 164 of the civil practice act {Comp.
tice act (Comp. Laws, 3259) of Nevada, which enumerates the grounds for which challenges
for cause may be taken, reads as follows: ThirdStanding in the relation of debtor or
creditor, guardian and ward, master and servant, employer and clerk, or principal and agent,
to either party; or being a member of the family of either party; or a partner, or united in
business with either party; or being security on any bond or obligation for either party.
We believe under this section, where it appears that the relation of landlord and tenant
exists, there is sufficient statutory authorization for the court to grant the challenge. All
parties to an action should be entitled to a fair, unprejudiced jury, and it requires no stretch of
imagination to understand that under some circumstances a tenant may for business interests
be influenced or embarrassed in his verdict.
United in business, as expressed in the statute, should be construed to mean any business
relation which would, within the sound discretion of the trial court, indicate that the juror
might be interested, biased, influenced, or embarrassed in his verdict.
The rule, we believe, is stated clearly in Cyc. as follows: A person is not competent to
serve as a juror in an action where there exist any business relations between him and one of
the parties calculated to influence his verdict. This rule applies when a party and a juror are
partners in business, or where there exists between them the relation of master and servant,
employer and employee, landlord and tenant, or attorney and client. (24 Cyc. p. 276.)
At common law, a juror standing in the relation of landlord and tenant was disqualified.
A tenant holding land from year to year as a cropper is disqualified as a juror in a case where
his landlord is a party. (Pipher v. Lodge, 16 Serg. & R. (Pa.) 214; 5 Bacon's Abridgments,
352; Coke's Littleton, 158 A and 157 B.)
The great trend of modern authority is to exclude from juries all persons who by reason of
their business or social relations, past or present, with either of the parties, could be
suspected of possible bias, even though the particular status or relation is not
enumerated in the various state statutes and codes, most, if not all, of which, like the
statutes of Nevada, are merely declaratory.
or social relations, past or present, with either of the parties, could be suspected of possible
bias, even though the particular status or relation is not enumerated in the various state
statutes and codes, most, if not all, of which, like the statutes of Nevada, are merely
declaratory. Thus the Kentucky Court of Appeals has held that a stockholder in a corporation
which owns stock in another corporation is disqualified to act as a juror in an action against
the latter corporation. (McLaughlin v. L. El. L. Co., 100 Ky. 173, 37 S. W. 851, 34 L. R. A.
812.)
The Supreme Court of Florida held (1906) that in the trial of a baggagemaster for
embezzlement of the property of a passenger it was the better practice to exclude from the
juries employees of the same company as the defendant. (Hopkins v. State, 52 Fla. 39, 42
South 53.)
The Supreme Court of Pennsylvania has decided that in an ejectment suit by the heirs of an
insolvent debtor the executor of a deceased creditor was not a competent juror. (Swull v.
Jones, 6 Watts & S. 122.)
The Supreme Courts of Nebraska and Colorado have held that a shipper over the railroad
of one of the parties who has received favors in the past and hopes for others in the future is
disqualified as a juror. (Railway Co. v. Cook, 37 Neb. 435, 55 N. W. 943; Denver v. Driscoll,
12 Colo. 520, 21 Pac. 708, 13 Am. St. Rep. 243.)
The Supreme Court of Iowa has held that the court may on the ground of probable
prejudice sustain a challenge to a juror, although the relationship is not within the degree
prescribed by statute as rendering the juror incompetent. (Wisehart v. Dietz, 67 Iowa, 121, 24
N. W. 752.)
The Supreme Courts of Colorado and Louisiana have held that where there is a family
connection reasonably calculated to prevent the juror from being impartial, although not
amounting to actual relationship, the juror is disqualified. (Buddee v. Spangler, 12 Colo. 216,
20 Pac. 760; State v. Kellogg, 104 La. 580, 29 South. 285.)
The identical point urged by counsel for appellant in this assignment of error has been
decided by the Supreme Courts of Pennsylvania and of New York adversely to appellant's
contention. "That the juror is a tenant of a party is in itself a sufficient ground of
challenge." {Harrisburg Bank v. Forster, S Watts, 304; Hathaway v.
appellant's contention. That the juror is a tenant of a party is in itself a sufficient ground of
challenge. (Harrisburg Bank v. Forster, 8 Watts, 304; Hathaway v. Helmer, 25 Barb. 29.)
But even where the action of the trial court is open to criticism, it does not amount to
reversible error. It has been held many times that a party has no right to any particular juror,
but only to a trial by an impartial jury. (State v. Hamilton, 35 La. Ann. 1043; State v.
Kluseman, 53 Minn. 541, 55 N. W. 741.)
If the trial court errs in sustaining a challenge for cause, the error is without prejudice if an
impartial and unobjectionable jury is subsequently obtained to try the case. (State v. Carries,
39 La. Ann. 931, 3 South. 56; State v. Creech, 38 La. Ann. 480; State v. Hamilton, 35 La.
Ann. 1043, supra; State v. Barnes, 34 La. Ann. 395; State v. Kluseman, 53 Minn. 541, 55 N.
W. 741; Omaha R. Co. v. Cook, 37 Neb. 435, 55 N. W. 943; Armsby v. People, 2 Thomp. &
C. 157; State v. Harding, 16 Or. 493, 19 Pac. 449; State v. Ching Ling, 16 Or. 419, 18 Pac.
844; Northern Pac. R. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed. 755, affirming
3 Dak. 38, 13 N. W. 349; Southern Pacific Co. v. Rauh, 49 Fed. 696, 1 C. C. A. 416.)
In Southern Pacific Co. v. Rauh, decided by the Circuit Court of Appeals for the Ninth
Circuit, it was held: Rejection by the court of a challenged juror for insufficient reasons is no
ground for exception when it appears that the remainder of the jury was made up of persons
to whom the excepting party made no objections.
In Northern Pacific Railway Company v. Herbert it was held: A trial by an impartial jury
being all that a party can demand, the allowance of a challenge for cause, even if the cause
was insufficient, is no ground of complaint where a competent and unbiased jury was finally
selected. (Northern Pacific Ry. Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, 29 L. Ed.
755.)
In the case at bar, it does not appear that there were any objectionable persons to appellant
upon the jury as finally constituted. In the recent case of Murphy v. Southern Pacific
Company, 31 Nev. 120
Southern Pacific Company, 31 Nev. 120, in passing upon the question of a juror challenged
for cause, who was formerly in the employ of the defendant corporation for fifteen years,
though not in the employ of the company at the time of the trial, and otherwise qualified as a
juror, we said: While it is true the mere fact that a juror has been in the former employment
of one of the parties to an action, where he is an otherwise competent juror, is no
disqualification, yet it is further true that the court as trier of challenges is given a great deal
of discretion in allowing or disallowing challenges to the end that a fair and impartial jury
may be secured. * * * In cases of a civil character, the authorities are practically uniform in
holding that by reason of the large discretion reposed in the trial judge in determining
challenges that a judgment will only be reversed where it is shown that there has been a gross
abuse of such discretion. In the present case it is not denied but that a fair and impartial jury
was afterwards secured, and that was all that a defendant could demand.
The action of the trial court, after discovering from an examination of the jurors on their
voir dire that the relation of landlord and tenant existed between them and the defendant
company, in allowing the challenges for cause we believe was proper under subdivision 3 of
the Statutes and the great weight of modern authorities.
It is next urged by counsel for appellant that the court erred in overruling the objection of
defendant to the introduction of any testimony on behalf of the plaintiff on the ground that the
complaint did not state facts sufficient to constitute a cause of action. This objection was
mainly based on the ground that no allegation appeared in the complaint as to how or in what
manner or in what method or in what particular the defendant was guilty of negligence. The
appellant, through this contention, seems to believe that it is incumbent upon the plaintiff to
allege in his complaint in minute particular the exact cause of the derailment by which the
train was thrown from the track, other than in the general allegation of attributing the
accident to the neglect of the defendant.
attributing the accident to the neglect of the defendant.
In view of the allegation of negligence herein pleaded, which we will review, we do not
believe there is any merit in this contention. Were such a contention sound, carriers would be
in many instances immune from the consequences of their negligence. A train drops through a
bridge. How are the injured passengers to know whether it was from rotten timbers, washing
out of the piers, defective steel, or other wanton negligence? A head-on collision occurs. Can
the injured passengers allege that it was because of a drunken engineer, an incompetent
conductor, an absent switchman, or a sleepy train dispatcher? How is an injured passenger to
say, when a derailment occurs, that it was because the track was defective, a slide occurred, a
truck had broken, or an old and inferior car had been used? That such is not the law has been
held by the overwhelming weight of modern decisions. The maxim, Res ipsa loquitur, has a
peculiar application to this class of cases. (6 Cyc. 628, and cases therein cited.) That proof of
a derailment of a train is prima facie evidence of defect in the track or machinery or fault in
the operation of the train has been often held by practically every state in the Union.
A complaint charging defendant with an act injurious to plaintiff with a general allegation
of negligence in the performance of such act is sufficient. And, even where a special demurrer
or motion to make more definite and certain is filed, the particulars of the negligence need not
be set forth if the facts are known to the defendant, or such that the plaintiff could not be
expected to know them.
In Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 498, 35 South, 460, the court said:
Under our system of pleading, very general averments, little short of mere conclusions, of a
want of care and consequent injury, leaving out the facts which constitute and go to prove the
negligence, meet all the requirements of the law.
In House v. Meyer, 100 Cal. 593, 35 Pac. 308, the court said: The demurrer to the
complaint was properly overruled.
ruled. In an action like this, to recover damages resulting from the alleged negligence of a
defendant, a general allegation of negligence upon the part of the defendant is sufficient. The
negligence is the ultimate fact to be pleaded, and is not a legal conclusion.'
To the same effect is Bliss on Code Pleading, sec. 211.
In Cunningham v. L. Ry. Co., 115 Cal. 566, 47 Pac. 453, the court said: The demurrer to
the complaint was properly overruled. While the negligence was averred in general terms,
such mode of presenting the facts is sufficient in this character of action, where, as a general
thing, the more specific facts are more largely within the knowledge of the defendant than
that of the plaintiff; and the complaint cannot therefore be held open to the objection of
uncertainty.
In the case of Gulf v. Washington, 49 Fed. 349, 1 C. C. A. 288, Judge Caldwell, speaking
for the Circuit Court of Appeals for the Eighth Circuit, said: It is very well settled that a
general allegation of negligence, without stating the particular acts which constituted the
negligence, is good against a general demurrer.
In McGonigle v. Kane, 20 Colo. 298, 38 Pac. 369, the Supreme Court of Colorado said:
As a rule, negligence may be pleaded generally. It is an ultimate fact, and only ultimate facts
are to be pleaded. Bliss in his work on Code Pleading (section 211a) says: The general
allegation of negligence is allowed as qualifying an act otherwise not wrongful. It is not the
principal act charged as having caused the injury, but it gives color to the act, makes it a legal
wrong. It is the absence of care in doing the act.' Negligence being the ultimate fact to be
established, a general allegation is sufficient. To allege,' says Rothrock, J., in Grinde v.
Railroad Co., 42 Iowa, 376, would be to plead the evidence which is not allowable.' (Hill v.
Fairhaven & W. R. Co., 75 Conn. 177, 52 Atl. 726.)
In L. & N. R. Co. v. Jones, 45 Fla. 414, 34 South. 248, the Supreme Court of Florida said:
The rule as established in this state in negligence cases is that it is not necessary for the
declaration to set out the facts constituting the negligence, but an allegation of sufficient
acts causing the injury, coupled with an averment that they were negligently and
carelessly done, will be sufficient.
tuting the negligence, but an allegation of sufficient acts causing the injury, coupled with an
averment that they were negligently and carelessly done, will be sufficient. And where the
negligence is alleged in general terms, and not confined to any specific acts of negligence,
any acts of negligence contributory to the injury may be shown in proof.
In Rinard v. Omaha, K. C. & E. Ry. Co., 146 Mo. 286, 64 S. W. 127, the Supreme Court
of Missouri said: The objection urged against it, however, that it does not specify the
particular act of negligence which it is claimed caused the injury, is answered by the cases of
Sullivan v. Railway Co., 97 Mo. 113, 10 S. W. 852, etc. These cases have been cited
approvingly and followed in Dickson v. Railway, 104 Mo., loc. cit. 502, 16 S. W. 381, etc.
In all these cases the negligence charged in general terms. The negligence charged in the
case at bar is as specific as that charged in the Sullivan case, supra, or in any of the cases that
have followed it, and is a substantial compliance with the requirements laid down in the
Gurley case, 93 Mo. 445, 6 S. W. 218. * * *
In Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 171, 25 S. W. 492, the
Court of Civil Appeals of Texas said: The Texas and Pacific Railway Company excepted to
that part of appellant's petition which charges that it negligently struck the cars of the
Galveston, Harrisburg and San Antonio Railway Company upon the ground that it does not
show how said train negligently struck said cars so placed there. We think the allegation was
sufficient. It is not necessary for a party to plead his evidence. It is only necessary to allege
the facts which show the liability of the party complained against. This was done by declaring
that the act was negligently done.
In Chaperon v. Portland Gen. El. Co., 41 Or. 42, 67 Pac. 929, the Supreme Court of
Oregon said: We have recently held, after a careful review of the authorities, that it is
sufficient in a declaration upon negligence, to specify the particular act, the commission or
omission of which caused the injury, conjoining with it a general averment that it was
negligently and carelessly done or omitted, and that it is unnecessary to go further and
particularize or point out the specific facts going to establish the negligence relied upon."
was negligently and carelessly done or omitted, and that it is unnecessary to go further and
particularize or point out the specific facts going to establish the negligence relied upon.
(Brown. v. Chattahoochee Lumber Co., 121 Ga. 809, 49 S. E. 839; Senhenn v. Evansville,
140 Ind. 675, 40 N. E. 69; Scott v. Hogan, 72 Iowa, 614, 34 N. W. 444; Louisville Ry. Co. v.
Wolfe, 80 Ky. 82; Dolan v. Alley, 153 Mass. 380, 26 N.E. 989; Rogers v. Truesdale, 57 Minn.
126, 58 N. W. 688; McCarthy v. N. Y. Cent., etc. (Super. Buff.) 6 N. Y. Sup. 560; New York
R. v. Kistler, 66 Ohio, 326, 64 N. E. 130; Waterhouse v. Joseph, 12 S. D. 397, 81 N. W. 725,
48 L. R. A. 157, 160.)
In Waterhouse v. Joseph, supra, the court said: It is further contended by the appellant
that it does not appear from the complaint specifically in what respects the building was
negligently constructed, nor in what respect the materials used were insufficient for such a
structure; but it seems in general that a complaint specifying the act, the commission or
omission of which caused the injury, and averring generally that it was negligently and
carelessly done or omitted, will suffice.[] (14 Ency. Pl. & Pr. 334, and cases cited.)
In Cederson v. Oregon R. & Nav. Co., 38 Or. 358, 62 Pac. 642, the Supreme Court of
Oregon said: The third assignment is that the court ought to have required the plaintiff to
make his complaint more definite and certain by stating the particular acts and things
constituting the alleged negligence and carelessness in the operation of said train or the
engine and cars attached thereto. * * * It cannot be supposed that strangers should be
intimately cognizant of the immediate condition of the appliances, and the exact manner of
the management and operation of a railroad and its engines and cars. These are matters
peculiarly within the specific knowledge of the persons or company having the road in
charge, so that the showing is strengthened by the attendant circumstances. Under such
conditions, it was not error to deny the motion.
In Texas & P. Ry. Co. v. Easton, 2 Tex. Civ. App. 380, 21 S. W. 576, the Court of Civil
Appeals of Texas said: "The plaintiff's petition charges the negligence to which his injuries
are ascribed as the negligence of 'the defendant, the Texas and Pacific Railway Company,
it agents and employees,' without specifying the particular agent or employee guilty of
the negligence causing the misfortune, and without stating the specific act of negligence
complained of.
The plaintiff's petition charges the negligence to which his injuries are ascribed as the
negligence of the defendant, the Texas and Pacific Railway Company, it agents and
employees,' without specifying the particular agent or employee guilty of the negligence
causing the misfortune, and without stating the specific act of negligence complained of. The
appellant complains of the action of the court in overruling the special exception addressed,
on account of the omission stated, to the plaintiff's petition. The facts alleged in the petition
justify the inference that the accident described was due to negligence of the defendant. The
evidence developed on the trial showed that this negligence was to be ascribed to the engineer
in charge of the defendant's train. This fact, however, the defendant in framing his petition
could not be supposed to know. It was, on the contrary, a fact peculiarly within the
knowledge of the defendant. This peculiar knowledge, together with the absence of
information on the part of plaintiff as to the special source of the injuries complained of, is,
we think, naturally to be inferred from the averments of the petition. Under such
circumstances, the pleader is not held to the specific averments the absence of which
appellant complains of.
The complaint in the case at bar specifically alleges: That on the 22d day of January,
1907, while plaintiff was such passenger in the car on the train of defendant, and while
plaintiff was being carried, transported, and conveyed by defendant, pursuant to said contract,
from Ogden, Utah, to Hazen, Nevada, upon the train of said defendant, said defendant,
wholly disregarding its duty and obligation to plaintiff, carelessly and negligently suffered
and permitted to be derailed and thrown from the track at a point near Deeth, Nevada, the
train on which plaintiff was riding as a passenger and the car in which plaintiff was a
passenger; that, by reason of said gross negligence and carelessness of defendant, its servants,
and employees, said train and car were derailed and thrown from the track and overturned;
that by reason thereof, and as a direct result thereof, plaintiff was thrown down and
violently hurt, injured, bruised, and wounded and knocked insensible; and his head
broken and the skull bones broken, and the left hand broken and crushed and twisted,
and on many parts of his body he was cut, bruised, hurt and wounded, and he was
crippled and greatly injured, and his general health impaired, and he was caused to lie in
a sick bed for many months, and for a long time remained sick and suffered and still
continues to suffer great, intense pain and distress, and he was and is now crippled, and
plaintiff is informed and believes, and therefore basing the allegation on information and
belief alleges the fact to be, that he will remain a cripple for life; that his wounds were
attended to at the railroad hospital at Sacramento, Cal., whither he was taken after the
wreck; that plaintiff's hand is deformed and he will never be able to work at his trade as a
result thereof: that the injury in plaintiff's head is permanent, causing him pain and
suffering, and affecting his hearing; that the injury to his head is very dangerous and
permanent."
and as a direct result thereof, plaintiff was thrown down and violently hurt, injured, bruised,
and wounded and knocked insensible; and his head broken and the skull bones broken, and
the left hand broken and crushed and twisted, and on many parts of his body he was cut,
bruised, hurt and wounded, and he was crippled and greatly injured, and his general health
impaired, and he was caused to lie in a sick bed for many months, and for a long time
remained sick and suffered and still continues to suffer great, intense pain and distress, and he
was and is now crippled, and plaintiff is informed and believes, and therefore basing the
allegation on information and belief alleges the fact to be, that he will remain a cripple for
life; that his wounds were attended to at the railroad hospital at Sacramento, Cal., whither he
was taken after the wreck; that plaintiff's hand is deformed and he will never be able to work
at his trade as a result thereof: that the injury in plaintiff's head is permanent, causing him
pain and suffering, and affecting his hearing; that the injury to his head is very dangerous and
permanent.
This allegation sufficiently pleads negligence on behalf of the defendant, and is clearly
within the maxim and the well-defined line of authorities that a passenger makes out a prima
facie case when he proves that he was a passenger and that he was injured without his fault,
and it is unnecessary, as we view the authorities, after pleading the fact that the accident
which caused the injury was due to the negligence and carelessness of the defendant, to go
further and particularize or point out the specific facts going to establish the negligence relied
upon, and for these reasons we see no merit in this second assignment of the appellant.
The appellant contends that the court erred in overruling the objection of defendant to the
question asked the witness Reynolds calling for oral manifestations of pain on the part of the
plaintiff long subsequent to the injury, and in denying the motion to strike. We do not think
that the admission of this evidence was erroneous. The witness Reynolds was in the same
hospital wherein the plaintiff was convalescing, and gave direct testimony as to what he
saw and heard of the manifestations of pain plaintiff suffered.
plaintiff was convalescing, and gave direct testimony as to what he saw and heard of the
manifestations of pain plaintiff suffered. One of the elements for which the plaintiff seeks
recovery of damages is for the physical pain he endured by reason of the accident, and, so
long as the evidence was confined to direct testimony of what manifestations of pain the
witness observed the plaintiff to be suffering, it was not error. It is conceded that the plaintiff
was badly injured, and pain and suffering naturally followed, and whether or not the plaintiff
really suffered was a material point to be proven by the plaintiff, also the extent of the
suffering. The testimony complained of was quite unimportant, however, and, even if
conceded to be error, would not be sufficiently fatal to warrant a reversal. The authorities
seem to be uniform that a witness may state the apparent physical condition of a man in cases
of this character, so long as the witness speaks directly within his own knowledge.
The Supreme Court of California, speaking through Justice Garoutte, in the case of Green
v. Pacific Lumber Company, 130 Cal. 435, 62 Pac. 747, in passing upon an almost identical
point as to whether or not the nurse might testify as to the complaints of pain or suffering on
the part of the party injured, said: The witness who acted as a nurse for plaintiff during the
first week after her injuries were received was asked the following question: You may state
any complaints of pain and suffering which you heard.' The objection to this question upon
the ground that the witness was not an expert amounts to nothing. No principle of expert
evidence is involved in the question. Neither do we consider the evidence objectionable as
hearsay. Involuntary declarations and exclamations of a person's present pain and suffering
are admissible as tending in some degree to show his physical condition. Of course, when
these declarations only amount to statements of his past condition they should be rejected.
President Taft, while sitting as circuit judge of the Circuit Court of Appeals for the Sixth
Circuit of the United States, stated as follows: "Such evidence was clearly admissible.
States, stated as follows: Such evidence was clearly admissible. This is expressly ruled in the
case of Insurance Co. v. Mosley, 8 Wall. 379-405, 19 L. Ed. 437, where Mr. Justice Swayne,
to illustrate how declarations may be evidence as verbal acts, uses this language: Upon the
same ground the declarations of the party himself are received to prove his condition, ills,
pain, and symptoms, whether arising from injuries, sickness, accidents, or by violence. If
made to a medical attendant, they are of more weight than if made to another person; but to
whomsoever made they are competent evidence. Upon this point the leading text-writers of
evidence, both in England and in this country, are in accord.' (B. & O. Ry. Co. v. Rambo, 59
Fed. 75, 8 C. C. A. 7.)
Counsel for appellant further maintains that the court erred in overruling defendant's
objection to the question asked defendant's witness on cross-examination: Isn't it a fact that
usually the smoker is more broken and that the occupants of the smoker are more frequently
injured than in any other cars on the road? Also in overruling defendant's objection to the
question on cross-examination as to delays in the delivery of freight, and annoyances to
shippers consequent thereto. Also in refusing to instruct the jury to disregard the statement of
counsel for plaintiff to the effect that the defendant had failed to produce witnesses whose
attendance was not shown to be available. We see no error in the ruling of the court in
allowing the witness to answer the question with reference to whether or not the smoker was
more broken or the occupants of the smoker more frequently injured than in any other cars on
the road. Prior to this question the witness, who was a conductor in the employ of the
defendant company, had testified that he had made an investigation of the railroad beds, cars,
etc., immediately after the accident, and was unable to come to any conclusion as to the cause
of the accident.
The question complained of was on cross-examination, and was admissible to test his
knowledge as to how thorough an investigation he had made of the cars and character of the
wreckage, etc.
character of the wreckage, etc. In any event, the testimony was not prejudicial to the
defendant's cause, because in answer to the question complained of the witness answered that
he did not know. For the same reason the question complained of as to the testimony of the
witness Allen was admissible. Allen testified in his direct examination that he was roadmaster
of the Southern Pacific Company on that portion of the road on which the derailment
occurred. He had been put on the stand by the appellant to prove the perfect condition of the
railroad, and in that connection had gone into detail with reference to the amount of work
done on the roadbed, the material used, when the rails had been put down. On
cross-examination he was asked why it was necessary to put heavier rails down in 1902, and
his answer was on account of the increase of the weight of the rolling stock and the weight of
the loads. In negativing the direct testimony of the witness, counsel for respondent on
cross-examination had the undoubted right to prove by the witness, if possible, that the
improvements on the railroad track had not kept pace with the increasing business of the
defendant corporation, and consequently the track was not suited to the greatly increased
traffic, the weight of the rolling stock, etc.
It was beneficially important to the plaintiff's cause to show, if he could, that the company
had not kept pace with the amount of traffic in supplying a proper roadbed, rails, etc. On the
cross-examination of the roadmaster, who had testified as to the perfect condition of the road,
counsel for plaintiff had the right to shake the testimony of said witness if he could, so long
as he confined his examination to the subject-matter brought out in the direct examination.
We do not see anything improper in the cross-examination. Neither do we see any error on
the part of the court in permitting counsel for respondent to draw an inference in his argument
that because the train engineer and passenger conductor of the derailed train were not called
to testify during the trial of the case by the defendant company that their testimony would be
adverse to it; and we do not think it was error on the part of the court to permit counsel
for plaintiff to draw the inference in his argument and to state that, they being in the
employ of the defendant company and under its control, it was either the duty of the
appellant to produce them or to explain their absence.
be adverse to it; and we do not think it was error on the part of the court to permit counsel for
plaintiff to draw the inference in his argument and to state that, they being in the employ of
the defendant company and under its control, it was either the duty of the appellant to produce
them or to explain their absence. This we believe to be legitimate argument, and in the
present case where these two most important witnesses were in charge of the train and present
at the time of the accident, they were presumed to be still in the employ of the defendant
company, until otherwise shown by defendant company, and we believe their absence should
be explained to the jury, or else the jury be permitted to infer, in view of the fact that their
presence could be had by the defendant company should it so desire, that their testimony
might be adverse to it.
We believe the rule upon this subject is properly laid down in Cyc., which reads as
follows: Failure to call an available witness possessing peculiar knowledge concerning facts
essential to a party's case or to examine such witness as to the facts covered by his special
knowledge, especially if the witness be naturally favorable to the party's contention, gives rise
to an inference sometimes denominated a strong presumption of law' that the testimony of
such uninterrogated witness would not sustain the contention of the party. * * * (16 Cyc. p.
1062.)
Counsel for appellant further contends that the court erred in permitting the plaintiff to
introduce nonexpert testimony as to the speed of the train. The testimony elicited, to which
defendant's objection is aimed, we do not believe prejudicial error for which defendant is
entitled to a new trial. It cannot be said that the testimony is expert testimony. Indeed, it may
with truth be said that, if a passenger is asked to give his opinion as to the rate of speed the
train is going, it is not expert testimony, nor subject to any of the strict rules relative to the
admission of expert evidence. The testimony is admissible and valuable just for what
weight may be given it by the jury.
admissible and valuable just for what weight may be given it by the jury. The evidence is
competent, but the jury is to weigh the credence they will give it, considering the character of
the witness and the knowledge of speed which he may disclose he possesses. The following
rule taken from 17 Cyc. p. 105, and supported by cases from practically every state in the
Union, we believe succinctly and properly states the rule: An observer may state his estimate
of the apparent speed of moving objects, as animals, a dummy engine, an electric or hand car,
a carriage, or railroad train. Such a witness is not an expert and need not have the training of
one, although he characterizes the rate of speed as dangerous, fast, high, very fast, reckless,
etc.
The three following assignments of error are set forth by counsel for appellant:
That the court erred in instructing the jury that it was incumbent upon the defendant to
repel by satisfactory proof every imputation of the slightest negligence.
That the court erred in instructing the jury that the defendant was legally bound to exercise
the highest practicable degree of care, skill, and foresight in the selection and use of suitable
cars, motive power, appliances, and servants, and in the proper construction and maintenance
of its roadbed and track, and the operating and running of its train.
That the court erred in instructing the jury that the derailment of the car in which plaintiff
was riding at the time of the wreck was prima facie evidence of defendant's negligence, and
that it was the duty of defendant to know and show the facts.
We believe the foregoing assignments to be without merit, and to be thoroughly disposed
of in the recently decided case of Murphy v. Southern Pacific Company in 32 Nev. 120,
wherein, among other things, we stated: The law is also well established that a railroad
acting in the capacity of a common carrier of passengers is bound to use the utmost care and
diligence for the safety of the passengers, and is liable for any injury to a passenger
occasioned by the slightest negligence against which human prudence and foresight
should have guarded."
passengers, and is liable for any injury to a passenger occasioned by the slightest negligence
against which human prudence and foresight should have guarded.
As to the soundness of the doctrine on which railroad carriers are bound, in so far as the
law pertaining to the degree of care and negligence is concerned, which we announced in
Murphy v. Southern Pacific, supra, which doctrines are still seemingly questioned by counsel
for appellant, as illustrative of the trend of modern authorities in support of those doctrines as
held in said case, above quoted, we believe it will be profitable to cite the following excerpts
from opinions sustaining the law as previously announced by this court:
The company is bound to the highest degree of care and utmost diligence to prevent their
(passengers') injury. (2 Rorer on Railroads, p. 1436; Shearman & Redf. Neg. 226.)
Street railway companies as carriers of passengers for hire are bound to exercise the
highest degree of care and diligence consistent with the nature of their undertaking, and are
responsible for the slightest negligence. (Smith v. St. Paul C. R. Co., 32 Minn. 312, 20 N. W.
238.)
In the case of Southern Pacific Company v. Hogan, decided April 2, 1910, reported in 108
Pac. 240, the Supreme Court of Arizona said: A railroad company must exercise the highest
degree of care practicable in carrying passengers. * * *
Where a passenger is injured by derailment or collision of a train, there is a presumption
of negligence by the company requiring evidence to rebut it. (Denver Railraod Co. v.
Woodward, 4 Colo. 1; Peoria R. R. Co. v. Reynolds, 88 Ill. 418; Pittsburg R. R. Co. v.
Williams, 74 Ind. 462; Seybolt v. New York R. R. Co., 95 N. Y. 562, 47 Am. Rep. 75; Bergen
R. R. Co. v. Demarest, 62 N. J. Law, 755, 42 Atl. 729, 72 Am. St. Rep. 685.)
Numerous authorities supporting the above rule are collated in a valuable note to Overcash
v. C. E. R. L. Co. 144 N. C. 572, 57 S. E. 377, 12 Am. & Eng. Ann. Cas. 1040.
Carriers of passengers for hire are bound to exercise the utmost skill and prudence in
conveying their passengers, and are responsible for the slightest negligence or want of
skill in either themselves or their servants."
the utmost skill and prudence in conveying their passengers, and are responsible for the
slightest negligence or want of skill in either themselves or their servants. (Sales v. Western
S. Co., 4 Iowa, 547; Bonce v. Dubuque S. R. Co., 53 Iowa, 278, 5 N. W. 177, 36 Am. Rep.
221.)
In case of common carriers of passengers the highest degree of care which a reasonable
man would use is required by law. (Derwort v. Loomer, 21 Conn. 245.)
Passenger carriers bind themselves to carry safely those whom they take into their
coaches to the utmost care and diligence of very cautious persons. (Maverick v. 8th Avenue
R. Co., 36 N. Y. 378; Carroll v. Staten Island R. Co., 58 N. Y. 126, 17 Am. Rep. 221.)
The trial judge, at the request of the transit company, gave the jury the following
instruction: While it is the duty of the defendant, as a carrier of passengers, to exercise
proper care for their safety, yet the defendant is not an insurer of the safety of its passengers,
and not liable to them for injuries resulting from such defect in its means of transportation as
could not have been guarded against by the exercise of care on its part, and which are not due
in any way to negligence on its part.' The test of negligence in such cases is whether the
defect ought to have been observed practically, and by the use of ordinary and reasonable
care.' * * * The rule, as gathered from the foregoing authorities, requires that a common
carrier of passengers shall exercise more than ordinary care. It requires the exercise of
extraordinary care, the exercise of the utmost skill, diligence, and human foresight. It makes
the carrier liable for the slightest negligence. It follows from the foregoing that the giving of
the instruction complained of was error. (Spellman v. Lincoln R. T. Co., 36 Neb. 892, 55 N.
W. 270, 20 L. R. A. 318, 38 Am. St. Rep. 753.)
A common carrier is not an insurer of the safety of its passengers, but it is required to
exercise the highest degree of care and diligence that is reasonably practicable in securing
their safety by keeping its cars and appliances in a safe condition, and at all times under the
control and management of skilled and competent servants."
and management of skilled and competent servants. (McAllister v. People's Ry. Co., 4
Pennewill (Del.) 276, 54 Atl. 744.)
In affirming defendant's fifth point, the court fixed too low a standard for the duty of the
railway company. More is required of a common carrier than mere reasonable precaution
against injuries to passengers, and care that its cars and appliances are to be measured by
those in known general use.' While the law does not require the utmost degree of care which
the human mind is capable of imagining, it does require that the highest degree of practical
care and diligence shall be observed that is consistent with the mode of transportation
adopted. (Palmer v. Warren St. Ry. Co., 206 Pa. 581, 56 Atl. 51, 63 L. R. A. 507.)
The principles of law regulating the duty owed by a common carrier of passengers are in
many respects analogous to those which control a common carrier of goods. A common
carrier of goods for hire is bound to deliver them safely, and from this duty can only be
exonerated by the act of God or of a public enemy. He is an insurer of their safety. With
respect to passengers, a common carrier is bound to use the utmost care and diligence for
their safety. Plaintiff in error is a railroad company. It was chartered and is operated for the
carriage of goods and passengers. Its duty as such is measured by the principles just
announced. With respect to goods it is an insurer. Its duty with respect to passengers is to
exercise the highest degree of care for their safety. (Norfolk & W. Ry. Co. v. Tanner, 100 Va.
379, 41 S. E. 721.)
As I told you, that is the question of law in the case, and our courts have held that, where
that relationship is established, then the law casts upon the person who carries, called the
carrier,' the highest degree of care with reference to the passenger carried. Now, that is
simple enough. That is the law of the case. If you find from the evidence that plaintiff was
injured by a collision between two of defendant's cars, while a passenger thereon, then I
instruct you that the colliding of the cars of defendant is presumptive evidence of
negligence on the part of the company."
of defendant is presumptive evidence of negligence on the part of the company. (Carroll v.
Charleston & S. R. Co., 65 S. C. 383, 43 S. E. 871.)
Carriers of passengers are bound to exercise all possible skill, foresight, and care in the
running of their cars, so that passengers may not be exposed to danger on account of the
manner in which the cars are run. * * * (Topeka City Railway Co. v. Higgs, 38 Kan. 376, 16
Pac. 669, 5 Am. St. Rep. 754.)
Railway passenger carriers in legal contemplation do not insure the absolute safety of
their passengers; but they do bind themselves to exercise the utmost degree of human care,
diligence, and skill, in order to carry their passengers safely. It is meant by this rule (1) that
the highest degree of practicable care and diligence should be exercised that is consistent with
the mode of transportation adopted; (2) that competent skill should be possessed, which
should be exercised in the highest degree. Tested by this rule, for the slightest neglect against
which human prudence, diligence, or skill can guard, and by which injuries accrue to
passengers, the carriers will be liable in damages. This high degree of care, diligence, and
skill extends, not only to the running of passenger trains, with a view to the safety of
passengers, but to providing against defects in the road, cars, or machinery, or any other thing
that can or ought to be done in order to carry passengers safely. Among these duties is that of
keeping the track clear of obstructions and of removing timber and bushes along the track on
the land of the company, so as to keep the engineer's view of the track, in running the train,
unobstructed. A failure to do this, or any of the duties above mentioned, is negligence. Prima
facie, where a passenger, being carried on a train, is injured by an accident occurring to the
train, the legal presumption arises that the accident and consequent injury was caused by the
negligence of the carriers and the onus of disproving the presumption of negligence, by
showing that the injury arose from an accident which the utmost care, diligence, and skill
could not prevent, is on them."
not prevent, is on them. (Louisville & N. R. Co. v. Ritter's Admr., 85 Ky. 368, 3 S. W. 591.)
The car leaving the track was prima facie evidence of negligence. This presumption may
be rebutted by showing that the injury arose from an unavoidable accident, or an occurrence
which could not have been prevented by the utmost skill, foresight, and diligence. Railways
are not insurers of passengers. But passenger carriers by railway are bound to the utmost
diligence which human skill and foresight can effect, and if an injury occurs, by reason of the
slightest omission in regard to the highest perfection of all the appliances of transportation, or
the mode of management at the time the damage occurs, the carrier is responsible. (Eureka
Springs Ry. Co. v. Timmons, 51 Ark. 467, 11 S. W. 692.)
When carriers undertake to convey persons by the powerful, but dangerous, agency of
steam, public policy and safety require that they be held to the greatest possible care and
diligence, and whether the consideration for such transportation be pecuniary or otherwise,
the personal safety of the passengers should not be left to the sport of chance or the
negligence of careless agents. Any negligence, in such cases, may well deserve the epithet of
gross.' (Philadelphia & R. R. Co. v. Derby, 54 How. 468, 14 L. Ed. 502.)
In the performance of the duties imposed by its contracts with passengers, a carrier is held
to the exercise of the highest degree of care. (Laub v. C. B. & Q. Ry. Co., 118 Mo. App.
495, 94 S. W. 552.)
As we have said, this is a case between a passenger and a carrier of passengers to recover
damages for an injury sustained by the passenger in consequence of the negligence of the
carrier during the period the above-named contractual relation existed between them. The
degree of care required by such a carrier and the precise duty which it owes to such a
passenger is clearly defined in the law. The carrier owes to the passenger the exercise of the
utmost care and diligence which human foresight can use, though not an insurer of the safety
of the passenger."
passenger. (Philadelphia B. & W. R. Co. v. Allen, 102 Md. 112, 62 Atl. 246.)
The street railway company was bound to use the highest degree of care for the safety of
its passengers, and, in case of an injury to a passenger from the result of a collision, the
burden is upon it to show that it was not guilty of any negligence which in whole or in part
caused the injury. (Forsythe v. Los Angeles Ry. Co., 149 Cal. 569, 87 Pac. 24.)
We think the nonsuit was improperly granted. The plaintiff's intestate occupied this
position on the running board because there was no vacant seat in the car, nor standing room
between the seats. This was not negligence per se. If the railroad company accepts passengers
whom it cannot accommodate inside its car, it must do all that human care and vigilance
reasonably can to prevent accident happening to them. (Verrone v. Rhode Island Sub. Ry.
Co., 27 R. I. 371, 62 Atl. 513, 114 Am. St. Rep. 41.)
There was no error in the refusal of the court to give the general charge in favor of the
defendant. While it is true that the obligation of a carrier of passengers is not that of an
insurer, yet it is held to the highest degree of care, and is bound by its contract to protect the
passenger against any injury from the negligence of its employees. (Louisville & N. R. Co. v.
Mulder (Ala.) 42 South. 743.)
The law compels stage proprietors to furnish prudent and skilful drivers, and holds them
liable for any injury that a passenger may receive on account of any negligence in this
particular. (McKinney v. Neil, 1 McLean, 540; Stockton v. Frey, 4 Gill, 406, 45 Am. Dec.
138; Farish & Co. v. Reigle, 11 Grat. 697, 62 Am. Dec. 666; Sales v. Western Stage Co., 4
Iowa, 547; Stokes v. Saltontall, 13 Pet. 181, 10 L. Ed. 115; Sawyer v. Dulany, 30 Tex. 479;
Redfield on Carriers, sec. 340; Angell on Carriers, sec. 569.) (Schafer v. Gilmer, 13 Nev.
338.)
Reduced to the simplest form, the rule may be stated to be that the carrier is bound to
exercise the strictest diligence in receiving a passenger, conveying him to his destination,
and setting him down safely that the means of conveyance employed and the
circumstances of the case will permit."
him to his destination, and setting him down safely that the means of conveyance employed
and the circumstances of the case will permit.' (Le Blanc v. Sweet, 107 La. 368, 31 South.
772, 90 Am. St. Rep. 303.)
It follows from the foregoing that the court did not err in instructing the jury that the only
rule of diligence applicable to the facts of the case was the duty of extraordinary diligence,
and in refusing to charge the law of ordinary diligence. A carrier of passengers in this state is
bound to exercise extraordinary diligence on behalf of himself and his agents to protect the
lives and persons of his passengers,' and this rule applies to the reception, transportation and
discharge of such passengers. (Georgia Ry. & El. Co. v. Cole, 1 Ga. App. 36, 57 S. E. 1028.)
The law is, as the jury were told, that carriers of passengers are liable for the slightest
negligence. Any negligence on their part is actionable. * * * The twenty-second instruction
asked by the appellant, and refused, reads thus: The court further instructs you that by
negligence, when used in these instructions, is meant either the failure to do what a
reasonable and prudent person would ordinarily have done under the circumstances of the
situation, or doing what such person would not have done under the existing circumstances.'
This instruction was properly refused. It is not proper in such a case as this to define
negligence as it is defined in this instruction. In a case of this character, the omission to
exercise the highest degree of practicable care constitutes negligence; but in other cases the
failure to exercise ordinary care constitutes negligence. Counsel are greatly in error in
asserting, as they do, that the instruction correctly furnishes the standard for the government
of the jury. The appellant was, as we have substantially said, bound to do more than prudent
men would ordinarily do, since it was bound to use a very high degree of care. (Louisville,
New Albany & C. R. Co. v. Snyder, 117 Ind. 438, 20 N. E. 286, 3 L. R. A. 435, 10 Am. St.
Rep. 60.)
Plaintiff in error contends that the court erred in giving instruction 5, which is as follows:
You are instructed that, under the law of this territory, a carrier of persons for reward must
use the utmost care and diligence for their safe carriage, must provide everything necessary
for that purpose, and must exercise to that end a reasonable degree of skill.' It is sufficient
answer to this contention to say that this instruction was in the language of our statute, which
provides the degree of care which a common carrier for hire must exercise. * * * But it is
contended by the learned counsel for plaintiff in error that this provision of our statute is not
applicable, since the collision of defendant's trains occurred in Kansas, and the carriage of the
plaintiff was in the nature of interstate commerce, and was not under state control. This
contention is not well taken. Independently of any statutory provision, the instruction
correctly states the law, upon principle as well as sound public policy. (Chicago R. T. & P.
Ry. Co. v. Stibbs, 17 Okl. 97, 87 Pac. 293.)
Appellant requested the court to charge: That it is the duty of a street railway company,
engaged in operating street cars for the carrying of passengers, to exercise a high degree of
care and diligence to prevent accident to its passengers; that is, it must use the highest degree
of care and diligence which is reasonably practicable under the circumstances of the case,' etc.
The court declined to give the request, and wholly failed to charge that such degree of care
and diligence is owing by a common carrier to its passengers. The degree of care charged was
only that of ordinary care; that is negligence consists in the doing of some act, or the
omission to do some act or perform some duty which a reasonable and prudent person ought
or ought not to do,' and that reasonable care and precaution, as mentioned in these
instructions, means that degree of care and caution which might reasonably be expected from
an ordinarily prudent person,' etc. So far as the degree of care required of a common carrier of
passengers, the jury was not given to understand that it was any greater than that required to
be exercised by the defendant towards persons not passengers, or any greater than
ordinary care.
by the defendant towards persons not passengers, or any greater than ordinary care. Street
railway companies are common carriers of passengers, and, as such, are bound to exercise for
the safety of their passengers more than ordinary care. The many different forms of
expression used in the text-books, and by the courts, in stating the rule as to the degree of care
required of a carrier in conveying passengers, all recognize substantially the same testthat
is, the highest degree of care, prudence, and foresight consistent with the practicable
operation of its roador, as it is sometimes expressed, the utmost skill, diligence, care, and
foresight consistent with the business, in view of the instrumentalities employed, and the
dangers naturally to be apprehended, and that the carrier is held responsible for the slightest
neglect against which such skill, diligence, care, and foresight might have guarded. (3
Thomp. Com. L. of Neg., secs. 2722-2729; 2 Shear. & Redf. sec. 495; 5 Am. & Eng. Ency.
Law, 558; Nellis, St. Rd. Acct. L., sec 6; Booth, St. Rys., sec. 328.) Appellant was entitled to
have the law given to the jury substantially as in the request stated. (Paul v. Salt L. City R.
Co., 30 Utah, 47, 83 Pac. 564, 565.)
The court charged the jury that appellee owed the duty under the law to exercise that
high degree of care for the reasonable personal safety of passengers on its cars which a very
prudent and competent person would use under the same or like circumstances,' etc. We
suggest on another trial that the word reasonable' be omitted, since it might be understood to
ingraft a limitation upon the well-defined duty of carrier to passengers to exercise the highest
degree of care for such passenger's safety. (Moore v. Northern Tex. Tract. Co., 41 Tex. Civ.
App. 586, 95 S. W. 653, 654.)
The final assignment of error of appellant urging the insufficiency of the evidence to
justify the verdict, and as to other assignments which we believe to be without merit for the
reasons heretofore given in this opinion, we believe, after a painstaking review of the
evidence, that we would not be warranted in disturbing the verdict of the jury after the fair
trial had in the trial court.
of the jury after the fair trial had in the trial court. Neither do we believe that the judgment
should be disturbed because of the alleged excessiveness of the damages. These questions
were fairly submitted to a jury under instructions of law, which we believe to be proper, and
there was sufficient material evidence adduced to support the verdict.
The judgment of the lower court is affirmed. It is so ordered.
ON PETITION FOR REHEARING.
On the 3d day of December, 1910, in an opinion unanimously agreed to by this court, we
affirmed a $15,000 judgment awarded to the plaintiff by a jury against the defendant for
injuries sustained in a railway accident by reason of a derailed car on which the plaintiff was
riding as a passenger at the time of receiving the injuries. Counsel for appellant petitions for a
rehearing upon the following grounds:
(1) Because this court inadvertently misconstrued evidence in assuming that the
conductor and engineer in charge of the wrecked train were not called as witnesses.
(2) That the court did not pass upon the question as to the power of the trial judge to
instruct the jury that there was a presumption of negligence for the mere happening of the
wreck, after the defendant had offered some evidence tending to prove that there was no
negligence on its part.
Both of these grounds urged for a rehearing are ably and elaborately discussed in
appellant's petition for a rehearing, which we have given thorough and serious consideration.
We are still convinced, however, that the judgment affirmed in our opinion should not be
disturbed.
We desire to confess inadvertently asserting the fact that the conductor and engineer in
charge of the wrecked train were not called as witnesses, which we were led in error to make
by reason of one of the briefs of counsel, but still insist that, if such were the fact, the law as
expressed in the opinion on this point is sound, and that had the company failed to have
called them as witnesses, having been in charge of the train as they were at the time of
the wreck, they would still be considered to be in the employ of the company until the
contrary was shown or their absence explained by the defendant company, and, if not
called as witnesses or their absence explained or accounted for to the jury, that it would
be legitimate argument before the jury for counsel of the plaintiff to have argued that
their testimony might be adverse to the company, and such argument would not be
prejudicial error.
expressed in the opinion on this point is sound, and that had the company failed to have
called them as witnesses, having been in charge of the train as they were at the time of the
wreck, they would still be considered to be in the employ of the company until the contrary
was shown or their absence explained by the defendant company, and, if not called as
witnesses or their absence explained or accounted for to the jury, that it would be legitimate
argument before the jury for counsel of the plaintiff to have argued that their testimony might
be adverse to the company, and such argument would not be prejudicial error.
The record shows that the remarks made by counsel for the plaintiff during the course of
his argument were in reference to an engineer and conductor of another train, which, by the
report of Conductor Trousdale of the wrecked train, were named as persons who witnessed
the accident or can give any information regarding it, and the inadvertence was in referring
to these parties in the former opinion as being the engineer and conductor, respectively, of the
wrecked train.
A further examination of the record in regard to this assignment of error discloses that
counsel for the plaintiff withdrew his remarks with reference to the failure of defendant to
call these witnesses, and that the final exception taken by counsel for the defendant did not go
to this portion of his remarks.
We quote from the record the following excerpt bearing upon this proposition:
Mr. Shoup: Upon both propositions; that is, as to the witnesses as well as the injuries?
The Court: As to the witnesses? Mr. Shoup: Yes.
The Court: I do not understand that counsel desired to extend to that.
Mr. Cheney: Well, it is immaterial, if the court please. If counsel objects to what I said
about these other parties, as to the conductor or engineer not being witnesses, that may be
withdrawn, if desired.
Mr. Shoup: We desire to have an exception to the ruling of the court as to the contents
of the report.
ruling of the court as to the contents of the report. So far as it relates to the plaintiff's injuries,
we would like to have an exception upon that.
The Court: Note the exception.
However, aside from this inadvertent statement concerning the nonattendance of these
witnesses, when, in fact, they were present and testified, in view of the failure of the company
to account for the accident to the satisfaction of the jury and overcome the prima facie
presumption of negligence against the company, which always arises in law when the plaintiff
proves the derailment of the car, and which the defendant must overcome, we can see no such
material prejudice suffered by the defendant by reason of the remarks of counsel for the
plaintiff to warrant this court in reversing the judgment. The plaintiff proved that he was a
passenger with paid fare on one of defendant's trains, that the train was wrecked, and by
reason of said wreck he received certain physical injuries.
Plaintiff further proved that the train was operated by the defendant company, and that
whatever defect there was either in the roadbed, train, or its operation which caused the
derailment, that such knowledge is presumed in law to be peculiarly within the knowledge of
the defendant, and its officers and agents, and without the knowledge of the respondent.
Having proved these facts, the plaintiff was privileged to rest his case, and, in the absence
of any other proof, the wreck would be inferred, as a matter of law, to be caused by the
defendant's negligence, and plaintiff entitled to judgment, unless this presumption was
rebutted, which fact of whether or not the presumption is overcome is for the jury to
determine from all the evidence adduced.
The law which we have laid down in our opinion we believe without any question of doubt
to be the law and supported by the great weight of modern authority to the effect that, where
a passenger is injured by the derailment or collision of a train, there is in law a presumption
of negligence, which immediately arises against the company, requiring evidence by the
company to rebut it."
pany, requiring evidence by the company to rebut it. If we have failed to make ourselves
clear on this point, we desire to reaffirm that in our judgment there is no question but that this
is sound law, and founded on reason and justice.
Unquestionably the lower court had the legal power to instruct the jury that there was a
presumption of negligence arising against the company when the wreck was proved to have
been the result of a derailment, and while the company had the privilege and authority, and it
was its duty to rebut this presumption if it could, yet we believe there was no invasion of the
exclusive function of the jury, as declared by counsel in his petition for a rehearing, when the
court instructed the jury, even after the defendant had given some evidence tending to prove
there was no negligence on its part. The presumption of negligence against the company arose
immediately upon the plaintiff proving the accident to be due to the derailed car, and it was
for the jury to determine from the evidence in rebuttal to this presumption, which arises in
law, as to whether or not the company sufficiently rebutted this presumption.
When a passenger buys a ticket on a passenger train and enters his compartment of travel,
he practically places his life and limb in the custody and care of the railroad company, and
having paid for the privilege of riding, with no authority to employ or select the employees of
the carrier, to inspect its train or construct its roadbed, he has the right to rely upon the carrier
for safety whilst on his journey, and it is both right and just that the responsibility of seeing
the passenger is safely conveyed rests solely upon the company; and if a collision or
derailment of the train or car on which he is traveling occurs by reason of faulty construction
of the car or the roadbed, or by reason of neglect of some of the company's employees, it is
right and proper that the burden of proving that they are not in default in any of these respects
rests upon the company, and the law is well and justly settled that the presumption of
negligence arises against the company whenever a derailment or collision takes place.
the company whenever a derailment or collision takes place.
The rule as to the liability of the carrier was very fully elucidated in a number of other
instructions given to the jury, and it cannot be said, we think, that the jury was not fully
instructed upon the rule of liability and the proof the defendant was required to offer to
relieve itself from liability for the accident and the injury resulting therefrom. We think the
jury was fully and fairly instructed, and that a greater degree of proof was not required of
defendant than the law imposes, and that the force, extent, and limitations of the presumption
of negligence arising from the accident was [were] fully pointed out to the jury and the
defendant's position in the law fully presented. (Murphy v. Southern Pac. Co., 31 Nev. 120;
Burch v. Southern Pac. Co., 32 Nev. 75; Sherman v. Southern Pac. Co., 33 Nev. 385.)
Again, we reaffirm the law to be sound and well settled that where a passenger proves
that he was injured by a collision or derailed train that there is in law a presumption of
negligence against the carrier, and in view of the thorough review which we gave to the case
in our original opinion, and being still satisfied after a review of the same that the law therein
stated is correct, the petition for a rehearing must be, and is hereby, denied.
Let such be the order.
____________
33 Nev. 418, 418 (1910) State v. Hamilton
[No. 1936]
THE STATE OF NEVADA, ex rel. J. P. DONNELLEY, Chairman of the Republican County
Central Committee of Esmeralda County, Relator, v. JOSEPH HAMILTON, as County
Clerk of Esmeralda County, Nevada, Appellant.
1. ElectionsPrimary ElectionsRight of Successful Candidate to Withdraw His Name From Official Ballot.
The question whether a candidate nominated at a primary election may have his name omitted from
the general election ballot is a matter of policy for the legislature, and, where the legislature forbids the
withdrawal of candidates nominated at a primary, the court cannot allow candidates to withdraw even for
deserving reasons.
2. StatutesConstructionLegislative Intent.
The intention of the legislature controls the courts in the construction of statutes, and such intention
must be gathered from the language used and from the mischiefs intended to be suppressed or benefits to
be attained.
3. StatutesConstructionSpecial and General Provisions.
One section of a statute treating specifically of a matter will prevail over other sections in which
incidental or general reference is made to the same matter.
4. Common LawAdoption.
The common law, except as specially abrogated, or except as unsuitable, prevails in Nevada.
5. OfficersDuty to PerformDuties of Office.
At common law a citizen could be required to perform the duties of an office.
6. ElectionsRight to Resign.
A candidate nominated at a primary election for a public office is not an officer within the statute
allowing officers to resign.
7. ElectionsPrimary ElectionsRight of Successful Candidates at Primary Elections to Resign.
Under the primary act (Stats. 1908-09, c. 198, sec. 5 subd. 4) requiring each candidate on filing his
nomination papers to make an affidavit, that if nominated he will accept the nomination and not
withdraw, and that he will qualify as such officer, if nominated and elected, and section 24, providing that
the person receiving the highest number of votes at a primary as the candidate for the nomination of a
political party shall be placed on the official ballot, and section 27, providing that vacancies occurring
after a primary shall be filled by the party committee, one nominated at a primary election as the
candidate of a political party for a public office cannot have his name omitted from the general election
ballot, though he has since the primary became incapacitated from making an active campaign.
8. ElectionsPrimary NominationsWithdrawal of NomineeStatutesRepeal.
The primary law (Stats. 1908-09, c. 198), having made a radical change in the manner of making
nominations for election, the provisions therein which preclude the withdrawal of a candidate after
nomination supersede any provisions in earlier statutes permitting officers to resign, even if a candidate
after nomination and before election were an officer within such former statutes.
Norcross, C. J., dissenting.
Mandamus by the State, on the relation of J. P. Donnelley, as Chairman of the Republican
County Central Committee of Esmeralda County, against Joseph Hamilton, as County Clerk
of the county, to direct the removal of the name of a candidate from the official ballot. From
an order granting relief, defendant appeals. Reversed.
James Redington and Horatio Alling, for Appellant.
J. F. Douglas and Frank J. Hangs, for Relator.
The question presented relates to the right of the nominee of a political party to have his
name withdrawn or omitted from the general election ballot after he has been regularly
nominated by a majority of the voters of his party. T. V. Eddy was so nominated at the late
primary election as a candidate of the Republican party, to be voted for at the general election
to be held next Tuesday, for the office of district judge of the Seventh Judicial District,
comprising Esmeralda County. Having become incapacitated by inflammatory rheumatism
from making an active campaign, temporarily at least, for he is now able to be delivering
political addresses, he sent to the secretary of state and to the county clerk a resignation or
communication, which was approved by the Republican county central committee of that
county, directing the withdrawal of his name from the list of candidates to be placed upon
the ballot to be used at the general election.
directing the withdrawal of his name from the list of candidates to be placed upon the ballot
to be used at the general election. The appeal is from an order of the district court obtained by
petitioner, acting as chairman of the Republican county central committee, directing the
removal of the name from the official ballot and from the list of nominees being published in
the newspapers.
The learned district judge took a humane view of the case, and was of the opinion that,
where the party realized that his condition of health was such that he was unable to make
either a campaign for himself or a campaign in assistance of the party, it would seem that he
not only could resign, but that it was his duty, as occurred to Col. Eddy from the letter
presented to the Republican committee, and that the affidavit that he would not resign is a
requirement of a declaration of fealty to the party on the part of those receiving at its hands a
nomination. We think these are considerations of policy or expediency for the legislature,
and not for the courts, and that the answer to the question presented depends upon the act and
intention of the legislature. If, under the language or policy of the statute providing for
primary elections (Stats. 1908-09, c. 198), it appears that the legislature intended to prevent
the withdrawal from the ticket of candidates after they had been nominated by the majority of
the voters of the party, the court cannot modify the statute and make any exception, and allow
candidates to withdraw under particular circumstances or for deserving reasons when the
legislature has intended to prohibit withdrawals and has not made any exception for special
cases in which they may be allowed.
The statute requires, by section 5, subd. 4, that each candidate upon filing his nomination
papers make an affidavit stating, among other things, that he is a duly qualified elector, and
that if nominated he will accept such nomination and not withdraw, and that he will qualify as
such officer if nominated and elected. The candidate had filed that affidavit with his
nomination papers preliminary to having his name placed upon the primary ballot, and he
received a majority of the votes of his party at the primary election.
candidate had filed that affidavit with his nomination papers preliminary to having his name
placed upon the primary ballot, and he received a majority of the votes of his party at the
primary election. It is provided in section 24 of the primary act (Stats. 1908-09, c. 198) that:
The person receiving the highest number (of votes) at a primary election as the candidate for
the nomination of a political party for an office shall be the candidate of the party for such
office, and his name as such candidate shall be placed on the official ballot voted at the
ensuing election. * * *
Section 27 provides: Vacancies occurring after the holding of any primary election shall
be filled by the party committee of the city, county, city and county, district and state, as the
case may be. There is no provision in the act in relation to withdrawals, except the one to
which we have referred, by which it is required to be stated in the affidavit of the candidate
filed with the nominating papers that if he is nominated he will accept such nomination and
not withdraw.
The intention of the legislature controls the courts in the construction of statutes. (State v.
Ross, 20 Nev. 61; Thorpe v. Schooling, 7 Nev. 15; Maynard v. Newman, 1 Nev. 271.)
It has also been held that it is the duty of the court to ascertain what the legislature had in
view in adopting a statute, in order to secure, if possible, the object intended by the
legislature. (Odd Fellows' Bank v. Quillen, 11 Nev. 109; State v. Ross, 20 Nev. 61; State v.
Dayton & V. & T. R. Co., 10 Nev. 155.)
In Brown v. Davis, 1 Nev. 409, it was held that in interpreting doubtful statutes the
primary object is to ascertain the intention of the legislature, and that this intention is to be
gathered from the language used and from the mischiefs intended to be suppressed or the
benefits to be attained.
In Roney v. Buckland, 4 Nev. 45, it was held that in the interpretation of a statute the
ultimate purpose is to be considered, and every sentence or section should be interpreted
with reference to the general object and with a view of giving it full and complete effect
and to extend to all its parts logical and legal results.
be interpreted with reference to the general object and with a view of giving it full and
complete effect and to extend to all its parts logical and legal results. It has also been held that
no part of a statute should be rendered nugatory if this can be properly avoided. (Torreyson v.
Board of Examiners, 7 Nev. 19.)
Another well-settled rule of construction is that, where one section of a statute treats
specifically of a matter, it will prevail over other sections in which incidental or general
reference is made to the same matter. (Long v. Culp, 14 Kan. 412; State v. Commissioner, 37
N. J. Law, 228.)
It is said, at sections 157, 158, in Sutherland on Statutory Construction: When the
legislator frames a statute in general terms or treats a subject in a general manner, it is not
reasonable to suppose that he intends to abrogate particular legislation to the details of which
he had previously given his attention, applicable only to a part of the same subject, unless the
general act shows a plain intention to do so. Where there is in one act, or several
contemporaneously passed, specific provisions relating to a particular subject, they will
govern in respect to that subject as against general provisions contained in the same acts.
If by implication section 27, providing for the filling of vacancies, could, if there was no
other provision in the act relating to withdrawals, be held in a general way to include
vacancies occurring by the withdrawal of a candidate when the kind of vacancies to be filled,
whether occurring by death or otherwise, is not stated, still the provision would be a general
one and would be modified and controlled by the special one by which it is apparent that the
legislature intended to prohibit the withdrawal of a candidate after he had been nominated by
a majority of the votes of his party.
Counsel for petitioner urges that the candidate may withdraw because it is nowhere
directly stated in the act that the petitioner may not withdraw. It is often held that the purpose
and spirit of an act will control the letter, but the wording and requirements of this statute
indicate the intention of the legislature.
the letter, but the wording and requirements of this statute indicate the intention of the
legislature. In the absence of any direct statement that he may or may not withdraw, we feel
limited to a construction of the provision that the candidate shall state in the affidavit that if
nominated he will accept such nomination and will not withdraw. The requirement of such a
declaration by the candidate, regardless of whether it must be made under oath, indicates that
the legislature intended that he should not be allowed to withdraw, and that he should keep
and not repudiate the obligation exacted, for surely, if it were intended that he should be
allowed to withdraw, and the legislature made any reference in the act to withdrawals, we
must conclude that, instead of requiring an affidavit from the candidate that he would not
withdraw, a provision would have been inserted allowing such withdrawal, or, if it were
intended only to require a moral obligation or one to show good faith, the candidate would be
required to make oath that he did not intend to withdraw, leaving him free to change his mind
and withdraw. The statute requires the candidate to state in the affidavit that he affiliated
with said party at the last preceding general election, and either that he did not vote thereat or
voted for a majority of the candidates of said party at said next preceding general election,
and intends to so vote at the ensuing election, and that if nominated he will accept such
nomination and not withdraw. As he need state only his intention as to how he shall vote,
but must swear positively that he will not withdraw, a distinction is clearly expressed, and it
is evident that the legislature intended to require not only a statement of his intention as to
how he will vote, but an unconditional and continuing assurance that he will not withdraw.
This means even more than would a bare statement in the statute that the candidate shall not
be allowed to withdraw, for it is reinforced by the requirement of an agreement under oath on
his part, and this sworn obligation not to withdraw amounts to more than a mere promise that
he will not have his name taken from the ticket.
have his name taken from the ticket. To hold that the requirement in the affidavit of the
candidate that he will not withdraw implies that he may withdraw would be as inconsistent,
and as contrary to the apparent purpose of the statute, as to hold that by providing that a
witness shall take an oath to tell the truth, it was not intended by the legislature that he should
be required to tell the truth. We cannot discredit the legislature with the belief that the
obligation was imposed with the intention of having it regarded only as a moral promise,
without legal effect, to be lightly ignored by the candidates as he might desire, and at his
instance by the courts. We must assume that our lawmakers, selected by popular vote as
representative citizens, are honest and high-minded men, and that they do not purposely waste
the time of the legislative session in passing idle, useless, or noneffective enactments, and
that they would not impose such an obligation upon candidates for office without an intention
of having it observed. It is evident that this provision was inserted in the law for a beneficial
purpose, and so that a candidate would not be allowed to trifle with the public or the voters of
his party by withdrawing after he had voluntarily become a candidate and received a majority
of the votes, and the state had been to the expense of a primary or other election.
Whether this affidavit of the candidate that he will not withdraw amounts to an estoppel
because by making it he obtained the printing of his name on the ballot and a majority of the
votes of his party at the primary election, and the incurrence of the expense of the primary
election, including publishing, printing of ballots, canvassing and certifying returns, which
pertained to him, and whether the agreement he made under oath may be legally enforced so
as to compel him to act affirmatively, need not be determined for the purposes of this case.
The secretary of state has certified to the county clerk that he received a majority of the
votes at the primary election as the candidate of his party for the office, and the clerk is
following the direction in the statute that he place the name upon the ballot to be voted at
the general election.
he place the name upon the ballot to be voted at the general election. The petitioner is seeking
to have the court compel the clerk to omit the candidate's name from the ballot. If, as
contended by counsel, the taking of the oath not to withdraw were only a moral obligation,
without legal force, and the committee of his political party is consenting and desiring that he
be allowed to withdraw, nevertheless the withdrawal in law would be based upon the act and
consent of the candidate, and if allowed at all it would clearly be a breach of a sacred
obligation to himself and the public, and upon well-recognized legal and equitable principles
the courts cannot aid him, nor any one who is seeking to assist him, in breaking his promise
or agreement by ordering the clerk to omit his name from the ballot.
Whether, instead of requiring the affidavit, it would have been better for the legislature to
have allowed candidates to withdraw after they had become nominated by receiving a
majority of the votes of their party when by reason of accident, sickness, or other causes they
become incapacitated after nomination to make the campaign or to fill the office, is a matter
of policy for the legislature. We cannot lend assistance to the candidate or the petitioner in
violating the obligation taken as required by the legislature because we may believe that it
would be desirable to allow candidates to withdraw under exceptional or deserving
circumstances, for the duty of the court is to construe these provisions of the statute as we
find them. Otherwise we may usurp legislative functions.
Chief Justice Waite, speaking for the court in Sinking Fund Cases, 99 U. S. 700, 718, 25
L. Ed. 496, said: One branch of the government cannot encroach on the domain of another
without danger. The safety of our institutions depends in no small degree on a strict
observance of this salutary rule. See, also, Fletcher v. Peck, 6 Cranch, 87-128, 3 L. Ed. 162;
Dartmouth College v. Woodward, 4 Wheat. 518-625, 4 L. Ed. 629; Livingston County v.
Darlington, 101 U. S. 407, 25 L. Ed. 1015.
* * * It is not a part of their functions to conduct investigations of facts entering into
questions of public policy, merely, and to sustain or frustrate the legislative will embodied in
statutes, as they may happen to approve or disapprove its determination of such questions. If
all that can be said of this legislation is that it is unwise or unnecessarily oppressive, * * *
their appeal must be to the legislature or to the ballot box, not to the judiciary. The latter
cannot interfere without usurping powers committed to another branch of government. (Ex
Parte Kair, 28 Nev. 146.)
At the common law, which we have adopted, and which prevails in this state except as
specially abrogated or where unsuitable to our conditions, a citizen could be required to
perform the duties of an office. We have an earlier statute allowing officers to resign; but a
candidate is not an officer, and, if he were, this provision of the later act of legislature, passed
for the purpose of prohibiting candidates from withdrawing after they have voluntarily taken
the oath not to withdraw, would control the earlier statute, and any former ones relating to
vacancies or withdrawals from the ticket. The scope of the new primary act indicates that the
legislature intended to make a radical change in the methods by which nominees for public
office are to be placed on the general election ballot. Instead of being selected by a
comparatively few individuals, comprising a convention or a committee, they are now to be
chosen by a majority of the votes of their party, cast in the booth, free from any undue
influence. (Riter v. Douglass, 32 Nev. 400.)
Different provisions of the act strengthen the inference that when nominees are so chosen
they are to remain upon the ticket in compliance with their oath not to withdraw, and that it
was not the intention of the legislature to have them break this obligation by withdrawing and
thereby allowing a committee to appoint nominees different from the ones selected by a
majority of the votes of the party. If we should hold that one candidate may withdraw after
taking the oath, all others would have the privilege of withdrawing unless we legislate
special exceptions into the statute when it contains none, and the legislative provision for
this oath would become useless and in effect nullified by the court.
would have the privilege of withdrawing unless we legislate special exceptions into the
statute when it contains none, and the legislative provision for this oath would become
useless and in effect nullified by the court.
The case of O'Connor v. Smithers, 45 Colo. 23, 99 Pac. 46, presented by the petitioner,
depended upon provisions of the Colorado statute specifically requiring the filing of an
acceptance or declination by candidates. Other cases cited by petitioner are also based upon
provisions different from any in force in this state.
With only one day for this decision, we are not able to give the case as extended
consideration as desired; but, from the conclusions stated, it is apparent that it is not
necessary to review any other questions argued.
The order of the district court is reversed.
Norcross, C. J., dissenting:
The main question upon the merits in this case is the force and effect of that portion of
section 5, subd. 4, of the primary election law, which requires that the candidate file an
affidavit which shall contain, among other things, the following: That if nominated, he will
accept such nomination and not withdraw and that he will qualify as such officer, if
nominated and elected. It is contended that this has the force and effect of a prohibition
against the withdrawal of a candidate after he has been regularly nominated at the primary
election. I am unable to agree with the contention that there is anything, either in the language
itself, or in the policy of our law relative to elections, which will warrant any such
construction being placed upon the language quoted. In my judgment the very language of the
statute requiring the candidate for nomination to make affidavit that he will not withdraw
presupposes the power to withdraw. If the legislature intended to prohibit successful
candidates the primary election from withdrawing, it would have said so in direct and positive
terms, instead of making a provision requiring the candidate to pledge himself in the most
solemn manner possible that he would not withdraw.
of making a provision requiring the candidate to pledge himself in the most solemn manner
possible that he would not withdraw.
In construing these provisions of the statute, we must not only consider the purpose and
object of the act, which the legislature sought to accomplish, as manifested by its various
provisions, but we should consider the condition of the law prior to the enactment of this
statute. Prior to the adoption of the primary election law, candidates for office upon the
various party tickets had the unquestioned right to withdraw therefrom whenever they saw fit
and for such reasons as were satisfactory to themselves. This is clearly manifested by the
provisions of what is known as the Australian ballot law, as may be illustrated by the
following excerpt from section 7 of the last-named act: Should a vacancy occur from any
cause in the list of nominees for any office, such vacancy may be filled at any time before the
day of election by the convention; or by a committee to which the convention has delegated
power to fill such vacancies or by petitions as provided in section 4 of this act. (Stats. 1891,
c. 40.)
The various laws relative to public officers contain specific provisions for the resignation
of such officers at any time they see fit to do so, even before they be qualified for such office.
There has never been in the laws of this state any restriction whatever upon the right, either of
a candidate for a public office or for an officer, to withdraw from such nomination or to
resign from such office whenever he saw fit to do so. The freedom of the citizen in this
respect has at all times been clearly recognized by statutory provisions. It is not to be
presumed that the legislature intended to make a radical change in this respect in the absence
of language clearly indicating such an intention. There is nothing, in my judgment, in the
primary election law which indicated any intention to restrict the privilege of withdrawal
which candidates for office have heretofore enjoyed; upon the contrary there are many things
in the act which, to my mind, indicate the contrary intention.
mind, indicate the contrary intention. As stated before, the language of the act in question
presupposes the power inherent in the candidate to withdraw, if he sees fit to do so, else, why
require him to make an affidavit that he will not do a thing which he could not possibly do if
the law were otherwise?
The act relating to primary elections contains a number of provisions requiring affidavits
upon the part, either of the candidate, or the elector. Section 4 of the act also provides that a
candidate for the office of state senator or that of member of the assembly may include with
his affidavit a declaration, either that he will vote for the candidate for United States senator
in Congress who has received for that office the highest number of the people's votes, or that
he will consider the vote of the people at any primary election for United States senator as
nothing more than a recommendation which he shall have the liberty wholly to disregard. If
he includes with his affidavit the former declaration that he will vote for the candidate for
United States senator who receives for that office the highest number of the people's votes, it
is conceded that such declaration can have no binding force upon him, but only imposes a
moral obligation, for the reason that the constitution of the United States controls the manner
of electing a United States senator. The elector who signs a petition of a candidate for a
particular nomination is required to make affidavit that I intend to support for such
nomination the candidate named herein. It is manifest that this affidavit on the part of the
elector is only to evidence his good faith at the time of making such affidavit. By another
provision of the primary act an elector proceeding to vote at the primary election may have
his right to vote challenged and he is required to make oath or affirmation as to his bona fide
present intention to support the nominee of such political party or organization.
All these affidavits, in my opinion, are for the purpose of indicating the good faith of the
elector at the time of making the same.
making the same. The elector who has made affidavit that it was his bona fide present
intention to support the nominees of a certain political party may subsequently change his
intention, and so with the elector who signs the petition for the nomination of a candidate for
office. No penalty is imposed upon the candidate or elector for a violation either of the letter
or the spirit of such an affidavit. In every case where an affidavit is required that a person will
do a certain thing, there is a recognition of power within himself to do a contrary thing. A
public officer is required to take an oath that he will support and defend the constitutions of
the nation and state and perform all the duties of his particular office. He may violate every
part of his oath. A witness upon the stand in the trial of a cause takes an oath to tell the truth,
the whole truth, and nothing but the truth. He may, if he sees fit to do so, violate this oath and
commit perjury. Many other examples might be given illustrating the correctness of the
statement that the requirement of an oath to do a certain thing presupposes the power to do a
contrary thing.
The main purpose and object of the primary election law is indicated by the following
excerpt from its title: An act to provide for the direct nomination of candidates for public
office by electors, political parties and organizations of electors without conventions at
elections to be known and designated as primary elections, determining the tests and
conditions upon which electors, political parties and organizations of electors may participate
in any such primary election. * * *
The object of the act, as indicated by its title, was mainly to provide for the direct
nomination of candidates for public office by the electors of the several parties without the
means of the convention system, under which abuses had grown up. There is nothing in the
act which warrants the construction that a candidate nominated under the primary system is
subject to any greater or different restrictions than before prevailed in the case of a candidate
nominated under the convention system.
the convention system. The act was designed to reach the abuses of the convention system,
and not to restrict the powers of candidates which have at all times been recognized by the
laws of this state. The affidavit required of the candidate that he will not withdraw, and that
he will qualify if nominated and elected, is only intended to evidence the good faith of the
candidate seeking the support of the members of his party organization. Manifestly, there is
not any existing law by which a candidate for office, if he become elected, could be forced to
qualify. Upon the contrary, there is specific statutory authority permitting him to resign any
office to which he has been elected, before qualification, yet his refusal to qualify in such a
case would be a violation of his affidavit. Candidates for political office have always been
permitted to withdraw before election, and no serious difficulty has ever occurred in this state
resulting from any such withdrawal. Language found in a statute is not to be given a strained
construction, in order to avoid an imaginary evil which has never existed in the state and
which, if given such construction, would be contrary to the established policy of the law
which has prevailed for many years.
Undoubtedly the legislature did not intend that a candidate for a party nomination should
treat such nomination lightly. It intended that he should assume the highest form of personal
obligation that his candidacy was in good faith, an obligation such that common experience
has shown is seldom broken for light or trivial causes; but, while so doing, the legislature
recognized it would be a dangerous experiment to make an absolute prohibition against
withdrawals. Many reasons may suggest themselves why the legislature did not intend to go
further than to impose the highest possible moral obligation upon a candidate not to withdraw
from a ticket after nominated. Unforeseen changes may occur in the affairs of a candidate at
any time which would render it impossible for him, either in justice to himself or to his party,
to remain upon a ticket. Suppose, for example, that, after the primary election, the
successful candidate for governor upon the ticket of either of the two great parties of the
state should by reason of accident, illness or personal engagements be forced to leave the
sate before the general election, or is rendered incapable of performing the duties of the
office, if elected, the strongest political reasons are presented why such candidate should
be permitted to withdraw and his party organization be permitted to fill the vacancy.
example, that, after the primary election, the successful candidate for governor upon the ticket
of either of the two great parties of the state should by reason of accident, illness or personal
engagements be forced to leave the state before the general election, or is rendered incapable
of performing the duties of the office, if elected, the strongest political reasons are presented
why such candidate should be permitted to withdraw and his party organization be permitted
to fill the vacancy. Withdrawal in such a case would only be a technical violation of the
affidavit of the candidate, and, in my judgment, would not be contrary to the spirit of the
election laws of the state. There is not, in my judgment, anything in the language of the
statute in question which will impute to the legislature an intent to compel a majority party,
say, to see the highest office in the state go to a minority party simply because its candidate
has met with some unexpected misfortune which renders him incapable of fulfilling his
obligation to his party. The construction given to this language by the prevailing opinion is
dangerous in the extreme and leaves a political party powerless to protect itself against any
unforeseen situation. The fact that cases may be imagined in which the right to withdraw may
be abused is no argument, in my judgment, against the manifest intention of the legislature
not to disturb the power that has always existed in a candidate for office to withdraw from
such candidacy.
Section 27 of the primary election law provides: Vacancies occurring after the holding of
any primary election shall be filed by the party committee of the city, county, city and county,
district or state, as the case may be. This is the only provision in the act relative to vacancies.
There is no limitation as to what may cause the vacancy. If a candidate cannot withdraw from
a nomination, then the only clear way a vacancy could exist would be by the death of such
candidate. The Australian ballot law recognizes that vacancies may exist for any cause,
which includes withdrawal after nomination. There being nothing in the primary election law
clearly indicating any intention upon the part of the legislature to modify the existing law
relative to the withdrawal of candidates, the language of the statute in question, in my
opinion, does not prohibit a candidate for a public office from withdrawing from such
candidacy.
tion law clearly indicating any intention upon the part of the legislature to modify the existing
law relative to the withdrawal of candidates, the language of the statute in question, in my
opinion, does not prohibit a candidate for a public office from withdrawing from such
candidacy. The candidate having the unquestioned power to withdraw, when he gives proper
notice of such withdrawal, a vacancy is created in the nomination for such office, which
vacancy the proper committee has the power to fill if it sees fit so to do.
In the case at bar, T. V. Eddy, the Republican nominee for district judge of the Seventh
Judicial District comprising the county of Esmeralda, on or about the 30th day of September,
1910, served, on the county clerk of said county, notice in writing of his withdrawal as a
candidate for such office. At the same time he addressed a letter to the Republican county
central committee of Esmeralda County advising such committee of his action, and giving as
a reason therefor his inability to enter into the campaign on account of ill health. The reasons
given for his withdrawal have, in my judgment, no legal effect, but only go to the moral
question as to whether there has been a wilful violation of a moral obligation. The answer of
the county clerk to the petition in the lower court admits that by law it is his duty * * * to
place upon the said official ballot only the names of such candidates as by law are entitled to
have their name appear thereupon. This duty being admitted, it follows that the county clerk
ought not to print upon the official ballot the name of a candidate who has regularly
withdrawn his nomination for a given office. As the Seventh Judicial District comprises only
the county of Esmeralda, it was not necessary to file the withdrawal with the secretary of
state, nor was the secretary of state required to furnish the county clerk with any such
certificate. As I view the law, the said T. V. Eddy had the legal right to withdraw from his
candidacy for the office of district judge; that he properly filed notice of such withdrawal with
the county clerk of Esmeralda County; and that it thereupon became the duty of the county
clerk to remove his name from the ballot.
County; and that it thereupon became the duty of the county clerk to remove his name from
the ballot.
It is not entirely clear to my mind that the writ of mandate ought to issue in every case
where there has been a withdrawal of a candidate for office who has taken the affidavit
provided for in the statute that he would not withdraw. It is a matter, which, I think, in the
brief time permitted for consideration, probably should be left to the discretion of the trial
court. There may be cases where the withdrawal is not supported by any sufficient reason
therefor, in which event a court might very properly refuse to issue the extraordinary writ to
compel the exercise of the legal duty of the clerk to remove the name from the ballot when
the rights of others would not be affected. The trial court, however, deemed this a proper case
for the issuance of the writ which was obtained by the official authority in the county of the
political party which had placed the said T. V. Eddy in nomination.
Having reached the conclusion that the lower court properly determined the controlling
question of law involved in the case, I am of the opinion that the judgment ordering the
issuance of the writ should be affirmed.
____________
33 Nev. 435, 435 (1910) State v. Smith
[No. 1916]
THE STATE OF NEVADA, Respondent, v. M. J.
SMITH, Appellant.
1. BailCriminal LawCriminal ProsecutionDiscretion Of Trial Court.
The criminal practice act, secs. 479, 500 (Comp. Laws, 4444, 4465), provide that no appeal from a
conviction, unless it be of fine only, shall operate as a stay, but that after appeal a defendant who has
been convicted may be admitted to bail in the discretion of the court. The defendant was convicted of
larceny, and refused bail on application to the trial court. Held, that as the discretion of the trial judge is
not to be disturbed, except for clear abuse, the defendant would not be admitted to bail by the supreme
court, especially where the case would shortly be heard on its merits.
M. J. Smith was convicted of larceny, and appeals. On motion in the Supreme Court to be
admitted to bail. Motion denied.
Thompson, Morehouse & Thompson, and Robt. L. Hubbard, for Petitioner.
R. C. Stoddard, Attorney-General, and Augustus Tilden, District Attorney, for the State.
Per Curiam:
This is an application for the release of the defendant and appellant on bail pending his
appeal.
The appellant was jointly indicted with three others for the crime of grand larceny, for
having, on the 30th day of January, 1910, at Goldfield, in the county of Esmeralda, stolen a
quantity of gold amalgam of the value of $400 from the Goldfield Consolidated Milling and
Transportation Company, a corporation. Upon a separate trial, appellant was convicted, and
was thereafter sentenced to be confined in the state prison for the term of three years. From
the judgment of conviction, and from an order denying defendant's motion for a new trial,
an appeal was taken to this court.
33 Nev. 435, 436 (1910) State v. Smith
order denying defendant's motion for a new trial, an appeal was taken to this court. Upon the
appeal being taken, application was made to the trial court for an order releasing the
defendant on bail pending the appeal. The application was denied. Upon the record upon
appeal being filed, a similar application was made to this court for the release of the
defendant. The application was first heard and submitted upon notice to the attorney-general.
Upon consideration of the application and the statutes controlling, we became convinced that
notice to the district attorney of the county in which the offense was committed was a
necessary prerequisite. Upon notice given to the district attorney of Esmeralda County, that
official appeared and opposed the application.
This appears to be the first time this court has been called upon to rule upon the question
of the granting of bail pending an appeal. The sections of the statutes, which are controlling in
the determination of the question presented, are the following: Sections 479 and 500 of the
criminal practice act (Comp. Laws, 4444, 4465), which read:
Sec. 479. No appeal from a judgment of conviction, unless it be one imposing a fine
only, shall stay the execution of the judgment, but the defendant, if in custody, shall remain in
custody to abide the judgment upon the appeal, unless admitted to bail, as prescribed in
section 502.
Sec. 500. After conviction of an offense not punishable with death, a defendant who has
appealed may be admitted to bail:
FirstAs a matter of right, where the appeal is from a judgment imposing a fine only.
SecondAs a matter of discretion in all other cases.
Upon the hearing of the application, the district attorney of Esmeralda County relied upon
the case of Ex Parte Smith, 89 Cal. 79, 26 Pac. 638, and authorities therein cited, as
enunciating a rule which should be controlling in this case, and under which rule the
appellant would not be entitled to bail. These cases cited, and all subsequent decisions by
the Supreme Court of California, bearing on the question, are based upon the penal code
of California of 1S72, section 1243 of which reads: "An appeal to the supreme court from
a judgment of conviction stays the execution of the judgment in all capital cases, and in
all other cases, upon filing with the clerk of the court in which the conviction was held, a
certificate of the judge of such court, or of a justice of the supreme court, that, in his
opinion, there is probable cause for the appeal, but not otherwise."
33 Nev. 435, 437 (1910) State v. Smith
sequent decisions by the Supreme Court of California, bearing on the question, are based
upon the penal code of California of 1872, section 1243 of which reads: An appeal to the
supreme court from a judgment of conviction stays the execution of the judgment in all
capital cases, and in all other cases, upon filing with the clerk of the court in which the
conviction was had, a certificate of the judge of such court, or of a justice of the supreme
court, that, in his opinion, there is probable cause for the appeal, but not otherwise.
Prior to the code of 1872, California had a statute precisely like the one now existing in
this state, and from which ours was doubtless copied. (Act of May 1, 1851, Comp. Laws Cal.
1850-1853, pp. 485, 487.) Since the adoption of the California code of 1872, execution of the
judgment in a criminal case may be stayed upon the filing of a certificate of probable cause,
as provided for in the statute. Prior to the adoption of such code, under the statute of 1851,
supra, a judgment of imprisonment could only be stayed by an order admitting the defendant
to bail. Under the earlier act a much more liberal rule prevailed in the matter of admission to
bail pending appeal than was held to be proper after the modification made in the statute by
the code of 1872. (Ex Parte Hoge, 48 Cal. 3; Ex Parte Marks, 49 Cal. 681.)
The cases relied upon by the district attorney cannot be regarded as setting forth a proper
rule for determining the question of bail under our statute, as they are based on very different
statutory provisions. The Hoge case, supra, was decided in 1871, shortly before the change in
the statute, and appears to be the only case in the supreme court of that state based upon the
old statute. The question of bail was uniformly disposed of by the trial courts, which followed
a liberal rule, because of the fact it was the only way a stay of execution could be obtained.
(Ex Parte Marks, supra.)
In People v. Perdue, 48 Cal. 552, the supreme court refused to pass upon the question of
bail until it had first been disposed of on its merits by the trial court, as the facts and
circumstances going to make up the legal discretion in the sound exercise of which the
prisoner may be admitted to bail are necessarily within the knowledge of the judge who
presided at the trial."
33 Nev. 435, 438 (1910) State v. Smith
the facts and circumstances going to make up the legal discretion in the sound exercise of
which the prisoner may be admitted to bail are necessarily within the knowledge of the judge
who presided at the trial.
In this case application was made to the trial court, and denied. We have not the benefit of
the reasons which prompted the denial of the application. The discretion reposed in and
exercised by a trial judge is not to be disturbed, except for clear abuse thereof. It may be, as
contended by counsel for appellant, that this was a proper case for the favorable exercise of
the discretion of the trial court, and it may be that the court was misled by the later California
authorities; but in view of the fact that there has been no definite settled rule of practice in
this state in matters of bail pending appeal, and in view of the further fact that the case must
shortly be determined on its merits, we do not now feel warranted in disturbing the order of
the lower court.
The application for bail is denied.
____________
33 Nev. 438, 438 (1910) State v. Smith
[No. 1916]
THE STATE OF NEVADA, Respondent, v. M. J.
SMITH, Appellant.
1. Criminal LawAppealFindingsConclusiveness.
A finding of a jury as to whether one was an accessory is conclusive.
2. Criminal LawAccomplice.
One who feigned participation in a larceny of ore which he was employed to watch, in order to assist
in the detection of the accused, was not an accomplice, so as to make his testimony subject to the rules
regarding accomplices' testimony.
3. LarcenyTakingConsent of Owner.
The watchman of an ore milling company was directed by a deputy sheriff, who was in the employ of
the company, to apparently agree to permit accused to extract and conceal ore, inducing accused to
believe that he would act as an accomplice, but not to actually assist him in taking the ore; and the
watchman made an arrangement with the accused by which he was to give a signal when accused could
safely take the ore, but refused to actually assist in taking and disposing of it. Held, that there was no
consent by the company's agents to the taking of the ore, so as to prevent its taking from being larceny.
33 Nev. 438, 439 (1910) State v. Smith
4. Criminal LawEvidence of Accomplices.
In a prosecution for larceny of ore, statements of an accomplice, relating in part to the taking of the
ore and its division according to agreement, were admissible in evidence; some ore having been taken
thereafter, and the statements being material.
5. Criminal LawEvidenceEvidence of Co-Conspirators.
A statement of an accomplice who conspired with accused to steal ore that he had made thousands of
dollars for accused was not admissible in evidence in a prosecution for larceny; it not appearing whether
the transaction referred to was illegal, and it not relating to the conspiracy.
6. Criminal LawTrialObjection to Evidence.
The objectionable part of evidence must be specifically pointed out, a general objection to its
admission being insufficient, unless it is all incompetent.
7. Criminal LawTrialObjections to Evidence.
An objection to evidence on a specified ground waives all other grounds of objections.
8. Criminal LawEvidence of Co-Conspirator.
In a prosecution for larceny by conspiring with others to steal ore, evidence of a statement of one of
the conspirators, after arrest, that another of them was a big boob, or he never would have been caught,
etc., was not admissible in evidence; the conspiracy then being at an end.
9. Criminal LawAppealHarmless ErrorAdmission of Evidence.
Error in admitting a statement of a co-conspirator, in a prosecution for larceny by conspiring with
others, that another conspirator was foolish, or he would not have been caught, and that if he had done as
the speaker wished he would not have gone there, was harmless to accused, because he was not
mentioned in the statement.
10. Criminal LawHarmless ErrorAdmissions of Evidence.
Error in admitting evidence of a fact which was apparently conceded, and to which other witnesses
testified, was harmless to accused.
11. Criminal LawAppealHarmless Error.
By the express provisions of section 589 of the criminal practice act (Comp. Laws, 4554), no error in
criminal proceedings shall render them invalid, unless it actually prejudices accused in a substantial right.
Norcross, J., dissenting.
Esmeralda County, Peter J. Somers, Judge.
M. J. Smith was convicted of grand larceny, and, from the judgment of conviction and an
order denying a motion for a new trial, he appeals.
33 Nev. 438, 440 (1910) State v. Smith
the judgment of conviction and an order denying a motion for a new trial, he appeals.
Affirmed.
Thompson, Morehouse & Thompson, and R. L. Hubbard, for Appellant:
I. It will be seen that, to warrant a conviction, there must be proven beyond a reasonable
doubt, and by admissible testimony:
FirstA conspiracy, between Smith, Miller, Knight and Hildebrandt, to rob the plates of
the mill of amalgam;
SecondThat defendant was in such conspiracy;
ThirdThat in pursuance of such conspiracynot some otherthe amalgam was stolen;
FourthThat Smith received the amalgam.
II. FirstA conspiracy cannot be proven by the declarations, admissions, and acts of a
co-conspirator. These declarations, admissions, and acts, are only admissible after the
conspiracy has been proven, and then only such declarations, admissions, and acts as are in
furtherance of, and in pursuance of the conspiracy. This is elementary law, but violated from
the beginning to the end of this trial over the objections and exceptions of the defendant.
(a) Conspiracy cannot be proven by the acts and declarations of alleged co-conspirators.
The conspiracy itself cannot be shown by proof of acts of the alleged conspirators taken
separately. (McClain, Crim. L., sec. 989; Shields v. McKee, 11 Ill. App. 188; Jones on
Evidence, sec. 255; Metcalf v. Connor, 12 Am. Dec. 340; Burke v. Miller, 7 Cush. 747; 1
Greenleaf on Evidence, sec. 111; People v. Irwin, 20 Pac. 56.)
This, as we shall show, is just this case. A prearranged and manufactured case, made up
through the testimony of Zimmerman, a self-confessed liar, and Miller, a self-confessed thief,
backed by a villainous scheme.
In Chapman v. Blakeman, 3 Pac. 277, the court says: The declarations of an alleged
co-conspirator is incompetent to prove the conspiracy, and the statements of an alleged
co-conspirator made out of court cannot be introduced from another witness to support or
fortify his testimony."
33 Nev. 438, 441 (1910) State v. Smith
duced from another witness to support or fortify his testimony.
In 3 Ency. of Evidence, 411, we read: The existence or nature of a conspiracy cannot be
established by the acts or declarations of one conspirator in the absence and without the
knowledge and concurrence of the others.
In 24 Fed. Cases (No. 14,487) it is said: No man's connection with the conspiracy can be
legally established, by what others did in his absence and without his knowledge and
concurrence.
In Osmun v. Winters, 46 Pac. 780, the Supreme Court of Oregon says: The admissions
and statements of one of the alleged conspirators, while not in the presence of plaintiff,
touching the supposed conspiracy, are inadmissible. To the same effect: Wiggins v. Leonard,
9 Iowa, 194; Ford v. State, 112 Ind. 373-383.
It will thus be seen that this rule is elementary.
(b) The next elementary rule is, that after the conspiracy has been proven, only those acts
and declarations of the co-conspirator are admissible in evidence, which are in the furtherance
of, and in aid of the common design. Acts and declarations merely narrative of what has been
done, or will be done, are not admissible, except against the person who did the things or
made the declarations.
In the great case of Spies v. People, 122 Ill. 1, the court says: Declarations that are merely
narrative as to what has been done, or will be done, are incompetent, and should not be
admitted, except as against the defendant making them, or in whose presence they are made.
In 3 Ency. of Evidence, 429, it is said: In order that evidence thereof be admissible, the
acts and declarations of the supposed co-conspirators must be those only which were made
during the pending of the wrongful enterprise and in furtherance of its object.
Declarations of a conspirator are received against his fellows only when they are either in
themselves acts, for which the others are responsible, but not when they are in the nature of
narratives, descriptions, or subsequent confessions."
33 Nev. 438, 442 (1910) State v. Smith
confessions. (State v. Ross, 29 Mo. 32, 50; State v. Weaver, 57 Iowa, 730; Patton v. State, 6
Ohio St., 467; Cohen v. State, 11 Tex. App. 153; People v. Arnold, 46 Mich. 268; Ruper v.
State, 25 Ohio St. 464; Wiggins v. Leonard, 9 Iowa, 194.)
In People v. Stanley, 47 Cal. 113, the court says: The rule is well settled that the acts of
an accomplice are not evidence against the accused, unless they constitute a part of the res
gestae, and occur during the pendency of the criminal enterprise, and are in furtherance of its
objects. (1 Greenl. on Ev., sec. 111; 3 Phillips on Ev. 396.)
So in People v. Moore, 45 Cal. 19, the court says: It is not competent to use as evidence
against one on trial for an alleged crime, the statements of an accomplice not given as
testimony in the case, nor made in the presence of the defendant, nor during the pendency of
the criminal enterprise and in furtherance of its objects.
(c) One accomplice cannot corroborate another accomplice. This is also elementary law,
for, as is said in U. S. v. Hing, 35 Fed. 281: If two or more accomplices are produced as
witnesses, they are not deemed to corroborate each other, but the same rule is applied, and the
same confirmation required as if there was but one. (People v. Smith, 33 Pac. 58; Blakely v.
State, 5 Am. St. Rep. 912.)
This last case says: One accomplice cannot corroborate himself, nor can the evidence of
one accomplice corroborate that of another. (Roberts v. State, 44 Tex. 119; Carroll v. State,
3 Tex. App. 117; Heath v. State, 7 Tex. App. 464; Gonzales v. State, 9 Tex. App. 374;
Phillips v. State, 17 Tex. App. 169; State v. Williamson, 42 Conn. 261; Porter v. Conn., 61 S.
W. 16; Howard v. Conn., 61 S. W. 756; Whitlow v. State, 8 S. W. 865; McConnel v. State, 18
S. W. 645.)
Corroboration, to be of any effect, must connect him with the crime itself, and not simply
with its perpetrators, for as is said in 1 Ency. of Evidence, p. 107: It is not sufficient for this
purpose, merely to connect the defendant with the accomplice, or other person
participating in the crime, but evidence, independent of the testimony of the accomplice,
must tend to connect him with the crime itself, and not simply with its perpetrators."
33 Nev. 438, 443 (1910) State v. Smith
not sufficient for this purpose, merely to connect the defendant with the accomplice, or other
person participating in the crime, but evidence, independent of the testimony of the
accomplice, must tend to connect him with the crime itself, and not simply with its
perpetrators. (Smith v. Com., 17 S. W. 182; State v. Odell, 8 Or. 30; Wright v. State, 43 Tex.
170; People v. Larsen, 34 Pac. 514; State v. Mikesell, 70 Iowa, 176.)
The law requires corroboration as to the circumstances of the crime. The rule of
corroboration is that the evidence must be to the overt actthe commission of the offense.
(People v. Main, 46 Pac. 612; People v. Thompson, 50 Cal. 480; People v. Koening, 99 Cal.
574; People v. Smith, 98 Cal. 218; People v. Compton, 56 Pac. 44; People v. Hoagland, 71
Pac. 359.) All these cases are from California, where the statute is the same as ours, and the
ruling is the same in the following cases: People v. Sciaroni, 89 Pac. 133; State v. Bond, 86
Pac. 43; State v. Kunston, 83 Pac. 226; Cooper v. Territory, 91 Pac. 1032.
In State v. Carr, 42 Pac. 215, the Supreme Court of Oregon says: Under all the
authorities, one who, being of mature years, and in possession of his ordinary faculties,
knowingly and voluntarily cooperates with or aids and assists another in the commission of a
crime, is an accomplice, without regard to the degree of his guilt. (1 Russ. on Crimes, 49;
Wharton's Cr. Ev., sec. 440; Bishop's Cr. Proc., sec. 1159; Cross v. People, 47 Ill. 153.)
As is said in Connor v. People, 36 Am. St. Rep. 295, to constitute larceny there must be a
trespass, that is, a taking of the property without the consent of the owner, coupled with an
intent to steal the property so taken; and the crime is not committed, when, with the consent
of the owner, his property is taken, however guilty may be the taker's purpose and intent.
And it does not matter who inspired or thought of the enterprise, whether it commenced
with the alleged thief or not, because the point is the consent, the consent destroys the
trespassthe unlawful taking, for, as Mr.
33 Nev. 438, 444 (1910) State v. Smith
Bishop says (5th ed. Cr. Law, sec. 262) the consent will take away the criminal quality of the
act; there is no legal crime committed.
Nor does it matter whether the owner, the mill company, knew of it or not, for the servant
consenting is the same as the mill company, which was the case of Regina v. Johnson, 41
Eng. C. L. R. 123, where the servant consented, acting through the advice of the police, to
open a door to accommodate the alleged burglars having proposed to rob the house. Here the
proposition came from the burglars, and the consent was that of the servant. Held, no
burglary.
To the same effect is Allen v. State, 40 Ala. 334; Speiden v. State, 3 Tex. App. 163;
Dodgers v. Brittain, Meigs, 84; Kemp v. State, 11 Humph. 320; State v. Chambers, 6 Ala.
855; Zink v. People, 77 N. Y. 114; Saunders v. People, 38 Mich. 218.
In State v. Hull, 33 Or. 56, it is held, to constitute larceny there must be a taking of
property without the consent of the owner. Therefore, the crime is not constituted where the
agent of the owner, acting under the latter's instructions, aids and abets the suspected thieves
in taking the property, the object of the scheme being to entrap and discover the guilty
parties.
This is our case exactly. The prosecution must stand upon the guilt or the innocence of
Zimmerman. If he was guilty then he is an accomplice, and there is no testimony in this case.
If he is innocent, then the property was taken by his full consent, and he was the agent acting
for and under the instructions of his employer, and aiding and abetting, inducing, encouraging
and, by preconcert, agreeing and participating in the alleged crime.
Section 1958, Criminal Code of California, says: An inference is a deduction which the
reason of the jury makes from the facts, without an express direction of law to that effect.
The court has no authority to draw the inference for the jury. It is their duty.
In Ayres v. State, 21 Tex. App. 399: The trial court should in no instance charge the
conclusiveness of such inference or presumption, but should submit them as facts to be
found by the jury; for at most they are but circumstances from which guilt is inferred, and
not positive proof establishing it." Here, the court submits the facts, etc., to the jury, and
then tells them, if you find the facts so and so, then you may infer the requisite criminal
intent.
33 Nev. 438, 445 (1910) State v. Smith
inference or presumption, but should submit them as facts to be found by the jury; for at most
they are but circumstances from which guilt is inferred, and not positive proof establishing
it. Here, the court submits the facts, etc., to the jury, and then tells them, if you find the facts
so and so, then you may infer the requisite criminal intent. And what else; that the defendant
entered into the arrangement wilfully and feloniously and intended, etc. Thus the very
questions for the jury, to wit, criminal intent, wilfully, feloniously, is taken from the jury, and
conclusively inferred by the court.
It is not for the judge to say what amount or degree of evidence is sufficient. To do so is
to charge upon the weight of evidence and is reversible error. (Stockman v. State, 24 Tex.
App. 387; Rice v. State, 3 Tex. App. 451; Lunsford v. State, 9 Tex. App. 217.)
In McKurn v. Neb. St. R. R., 59 Cal. 294, it is said: The jury under such circumstances are
to make such inference from the testimony as legitimately and justly follow, on which to base
their verdict; they are not only to find the facts, but the inference from them.
All the decisions hold the same. There then can be no question but this instruction is
erroneous.
The appellant was convicted of the crime of grand larceny and sentenced to the state
prison for the term of three years. From the judgment of conviction and from an order
denying his motion for a new trial, he has appealed.
He was jointly indicted with three others, Bart Knight, J. Hildebrandt, and Martin Miller,
for the stealing of gold amalgam of the value of $400, the property of the Goldfield
Consolidated Milling and Transportation Company, on the 30th day of January, 1910, or
thereabouts. The defendant, Martin Miller, was dismissed from the indictment and made a
witness for the state, under the provisions of section 361 of the criminal practice act {Comp.
33 Nev. 438, 446 (1910) State v. Smith
sions of section 361 of the criminal practice act (Comp. Laws, 4326.)
The defendant, M. J. Smith, appellant herein, was granted a separate trial. While he was
indicted as a principal, he was proceeded against under the provisions of Compiled Laws,
section 4665, upon the theory that he was an accessory before the fact. The same situation
existed, so far as the other two defendants, Knight and Hildebrandt, were concerned. It was
the theory of the state that a conspiracy had been entered into between Smith, Knight,
Hildebrandt, and Miller to steal gold amalgam from the mill of the Goldfield Consolidated
Milling and Transportation Company; the actual theft to be committed by Martin Miller. On
the evening of the 13th of February, 1910, Miller was arrested in the act of taking amalgam
from the plates of the mill, by one Clarence A. Sage, a deputy sheriff of Esmeralda County
and special officer for the Goldfield Consolidated Milling and Transportation Company.
After the arrest of Miller, he was taken to the office of the attorneys of the company, where he
made a confession of his participation in the act upon which the indictment was based.
The evidence of the conspiracy which the state sought to establish, and which it is
contended upon the part of the state was established, was in substance as follows: The
defendant Smith, who was an assayer in the town of Goldfield, approached Martin Miller,
who was in the employ of the Goldfield Consolidated Milling and Transportation Company
as an amalgamator, with the suggestion that he obtain gold amalgam from the mill. Miller
informed Smith that he could not do this, because of the fact that he was under the
surveillance of a watchman. Smith then informed Miller that he would arrange to have the
watchman fixed. Subsequently Smith informed Miller that he had fixed the watchman
through the agency of defendant Jake Hildebrandt, and that Miller would know that it was
safe for him to proceed to take the amalgam when the watchman, W. M.
33 Nev. 438, 447 (1910) State v. Smith
Zimmerman, would say to him, All right. The proof of the conspiracy to commit the crime
charged in the indictment rested mainly upon the testimony of the defendant Miller and
Zimmerman. The defendants Knight and Hildebrandt did not testify; but statements made by
them were received in evidence, over the objection of counsel for the defendant, upon the
theory that they were co-conspirators.
It has been strongly urged upon the part of the appellant that there was no corroboration of
the testimony of the defendant Miller, and hence, under the statute (Comp. Laws. 4330), there
was no sufficient proof of the crime charged as against the defendant Smith. It is contended
upon the part of the state that there was sufficient corroboration of the testimony of Miller by
reason of the testimony of the witness Zimmerman, who detailed a conversation had with the
defendant Smith in which, according to the testimony of Zimmerman, Smith admitted his
criminal relations with the defendant Miller. It has been seriously urged upon the part of
counsel for the appellant that Zimmerman himself was an accomplice, and therefore his
evidence could not be considered as corroborating that of Miller. We need not, we think,
consider this contention at any length, for there was testimony upon the part of Zimmerman
and other witnesses that Zimmerman was a feigned accomplice, and whatever participation
he had in the affair was for the purpose of detecting the parties to the conspiracy. The
question as to whether Zimmerman was or was not an accessory was submitted to the jury
upon a proper instruction, and the finding of the jury as to that fact would in any event be
conclusive.
In State v. Douglas, 26 Nev. 204, 99 Am. St. Rep. 688, the accused planned the larceny
and suggested it to one King, who consented to join in the commission of the offense, but did
not, and who kept the sheriff informed regarding the plans of the defendant, and was
appointed his deputy. It was held that King was neither a co-conspirator nor an accomplice,
and that his evidence should not be treated as such.
33 Nev. 438, 448 (1910) State v. Smith
co-conspirator nor an accomplice, and that his evidence should not be treated as such. The
conviction was sustained. (Campbell v. Commonwealth, 84 Pa. 187.)
The most serious question presented by the record in this case is in reference to the
contention made by counsel for the appellant that the facts fail to establish a case of larceny,
because it is shown conclusively that the amalgam was taken by the defendant Miller with the
consent of the Goldfield Consolidated Milling and Transportation Company, through its
authorized agents. In order to determine this question, it will be necessary to review portions
of the testimony of the witnesses Miller, Zimmerman, and Sage. Miller, the real accomplice,
and Zimmerman, the feigned accomplice, do not entirely agree in their important testimony.
The jury were at liberty to believe Zimmerman. They both state that Zimmerman said to
Miller, It's all right. Anything that Miller understood from this was in connection with the
plan of his confederates, Smith and Hildebrandt. Miller testified that Zimmerman told him to
go ahead. The latter denied this, and testified regarding Miller: Well, after I told him, All
right,' he said, Did you see Jake?' I says, Yes.' He says, Well, how will we do it?' I said, I
supposed you had it all arranged.' I was not supposed to have anything to do with it. He says,
Well, I'll take some off and give it to you, and you can cache it for me, and I will get it as I
go home.' I says, No; I won't do that. In the first place, I don't believe it's safe for me to
handle it. It's up to you.' He says, How will we do it?' I says, That's up to you.' I supposed
from what Hildebrandt said that everything was arranged.
Regarding the conversation at the California Beer Hall the next day, Zimmerman testified:
Miller insisted on taking the amalgam and giving it to me, but I refused; told him I wouldn't
do it. I told him, in the first place, that Mr. Hildebrandt had told me that I would not have
anything to do, only turn my back on the proceedings, and that, in the second place, I didn't
think it was safe; that the watchmen were possibly watched as much as the watchmen
watched the workmen, and I wouldn't do it.
33 Nev. 438, 449 (1910) State v. Smith
that the watchmen were possibly watched as much as the watchmen watched the workmen,
and I wouldn't do it. After we had argued the matter some few minutes, he said he would go
ahead, all right, and take it himself. * * * Q. Did you give him any permission to remove that
amalgam? A. No more than just as I have stated; that I just said, All right,' and didn't object
to him doing it. Q. Did you give him any express permission; did you say, You may take this
amalgam from this mill?, or anything of that kind? A. No, there was no such conversation as
that. * * *
Zimmerman further testified: I didn't open the way. I didn't make the proposition. They
made the suggestion to me, and after I was advised I done what I did. Q. Didn't you make a
suggestion? A. No; Miller made the suggestion to me. Q. I thought you said to Miller, All
right?' A. I did. Q. Up to that time Miller hadn't said a word, had he? A. He had not. Q.
Wasn't that suggesting to Miller that he go ahead and do this? A. Hildebrandt told me to say
to Miller, All right,' so he could know from me personally that it was all right to go ahead. Q.
You were acting upon instructions from Hildebrandt? A. I was.
Sage, the detective of the company, testified regarding Zimmerman: Told him not to
touch any of the amalgam himself in any way. Told him not to give his consent to stealing,
and to stand there and watch him, but not give his consent.
Although both are near the border line, the Wisconsin decision, to which our attention has
been called, may be distinguished from the present one. That case and others, such as State v.
Hull, 33 Or. 57, 54 Pac. 159, 72 Am. St. Rep. 694, and State v. Waghalter, 177 Mo. 676, 76
S. W. 1028, holding that a conviction cannot be sustained if the owner of the property, for the
purpose of entrapping the thief, advises and assists in planning and carrying out the taking,
are distinguished from cases more similar to the present one in 30 L. R. A. (N. S.) 951, where
it is said regarding that case: The trespass necessary to constitute larceny is absent, also,
where a property owner, upon being informed of a design to steal his property, places it
upon a platform where the intending thief is planning to get it, with instructions to his
servant in charge of the platform to deliver it to the one who will call for it, so that when
the intending thief arrives, he is treated as having a right to the property, especially
where another agent of the owner, sent to arrange for the taking of the property, has
agreed to the place proposed by the thief, under circumstances which involve a promise
of assistance in carrying out the plan.
33 Nev. 438, 450 (1910) State v. Smith
tute larceny is absent, also, where a property owner, upon being informed of a design to steal
his property, places it upon a platform where the intending thief is planning to get it, with
instructions to his servant in charge of the platform to deliver it to the one who will call for it,
so that when the intending thief arrives, he is treated as having a right to the property,
especially where another agent of the owner, sent to arrange for the taking of the property, has
agreed to the place proposed by the thief, under circumstances which involve a promise of
assistance in carrying out the plan. (Topolewski v. State, 130 Wis. 244, 109 N. W. 1037, 7 L.
R. A. (N. S.) 756, 118 Am. St. Rep. 1019, 10 Am. & Eng. Ann. Cas. 627.)
There the agents of the company owning the property assisted in planning for the taking
and aided in the removal of the property; here, according to the testimony, the defendant
designed the larceny, approached and induced his codefendant Miller to take the amalgam
from the plates, and also planned to have the watchman, Zimmerman, approached and
induced to allow the removal of the property. The design was by the defendant, and under his
direction the amalgam was taken by his accomplice, Miller. Zimmerman, the watchman for
the company, refused to advise regarding the method of taking, or to take or handle, the
amalgam. He followed the instructions and plan of the defendant when he said to Miller, It's
all right, although at the instigation of the defendant and with the knowledge of the company
he allowed it to be taken. It does not appear that he was authorized to assist, or assisted, in
any way in the removal of the amalgam from the plates, or from the possession of the
company. Having failed in his efforts to obtain advice and assistance from Zimmerman,
Miller in its removal was acting as the agent of the defendant, and not under instructions from
the company. The better reasoned cases hold that, where the accused designs the offense and
does all the acts necessary for its commission without the actual aid of the owner of the
property, he is liable to punishment, although the owner may not prevent or may
apparently acquiesce in its taking.
33 Nev. 438, 451 (1910) State v. Smith
is liable to punishment, although the owner may not prevent or may apparently acquiesce in
its taking.
This question is treated extensively, and many cases are reviewed in a note at page 950 and
adjoining pages of 30 L. R. A. (N. S.). It is there said:
Likewise it has been held no defense to a prosecution for abstracting and embezzling
money from the mails that is was taken from a decoy letter addressed to a fictitious person,
and mailed by an inspector, for the purpose of detecting defendant if he should commit the
crime.
So, in Goode v. United States, 159 U. S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297, the court
said: That the fact that the letter was a decoy is no defense is too well settled by the modern
authorities to be now opened to contention.' And in Montgomery v. United States, 162 U. S.
410, 16 Sup. Ct. 797, 40 L. Ed. 1020, on the authority of Goode v. United States, supra, it
was held no defense to a prosecution for embezzling and stealing letters containing money
which had come into defendant's hands as a railway postal clerk that such letters were decoys,
and had been mailed for the purpose of detecting him.
Consent of officers is no defense to a prosecution for burglary. Thus, in People v. Laird,
102 Mich. 135, 60 N. W. 457, the court said: The duty of the police lies beyond the
protection of the public from a particular offense. It will not do to lay down the rule that, if a
burglary is suspected, it is the duty of the police officers to prevent the commission of that
particular offense, rather than lie in wait and secure the guilty parties. In such case the police
do not encourage the commission of the crime, but simply apprehend parties bent upon the
crime, who, in carrying out plans already formulated, rush into the arms of the officers. Even
an informant accompanying his associates does not necessarily encourage their purpose, and
it is not proper that he should, but he simply acquiesces in a plan already formed.' "In State v.
Currie, 13 N. D. 655, 102 N. W. S75, 69 L. R. A.
33 Nev. 438, 452 (1910) State v. Smith
In State v. Currie, 13 N. D. 655, 102 N. W. 875, 69 L. R. A. 405, 112 Am. St. Rep. 687,
it was held no defense to a prosecution for burglary that one present with and assisting
defendant in the burglary was a detective, if the detective did not instigate the crime, and it
was committed, as to every ingredient of it, by the defendant; nor that the owner of the
building, to whom the detective disclosed that it was probably about to be burglarized by the
defendant with the feigned assistance of himself, acting for the purpose of securing evidence
of the intended burglary and other crimes, did not take steps to prevent the crime, but
passively allowed it to go on.
And it is no defense to the prosecution of one who was the instigator and prime mover of
an attempt to commit burglary, with intent to steal, that one to whom the defendant proposed
the crime, and who acted as a confederate, informed the owner of the premises to be
burglarized of the intended burglary, and the latter, for the purpose of catching defendant, told
the informer not to insist in defendant's coming, or to encourage him to come, but just to let
him come along of his own free will and accord, and voluntarily, if he would; such conduct of
the owner not amounting to a consent for defendant to enter the house or take property
therefrom. (Robinson v. State, 34 Tex. Cr. R. 71, 29 S. W. 40, 53 Am. St. Rep. 701.)
So, it is no defense to a prosecution for taking property by force or threats, and against the
owner's consent, in pursuance of a conspiracy for the purpose, that the prosecutor, after
defendants had formed their guilty intent, laid a trap, and went voluntarily to their meeting
place with money which was marked and furnished him by the prosecuting attorney for the
purpose of entrapping defendants, who were thus entrapped into the hands of officers on the
watch. (State v. Piscioneri (W. Va.) 69 S. E. 375.)
It was held no defense to a prosecution for an attempt to commit the crime of extortion
that one from whom defendant sought to obtain money by threats of accusation of crime, and
who paid the money to defendant, was at the time acting as a decoy of the police, and
trying to induce defendant to receive money from him under such circumstances as would
render defendant guilty of a crime, and enable the police to arrest and convict him of it.
33 Nev. 438, 453 (1910) State v. Smith
at the time acting as a decoy of the police, and trying to induce defendant to receive money
from him under such circumstances as would render defendant guilty of a crime, and enable
the police to arrest and convict him of it. (People v. Gardner, 144 N. Y. 119, 38 N. E. 1003,
28 L. R. A. 699, 43 Am. St. Rep. 741, 9 Am. Crim. Rep. 82.)
On a prosecution for criminal libel, it was held no defense that the person libeled, having
been informed and believing that the defendant designed to publish a libel, employed a
detective to watch him and take every step to detect him if he committed the offense, and
even to cooperate with him for that purpose, and allowed the crime to be committed, for the
purpose of detecting and prosecuting the defendant, but the latter was not solicited to commit
the crime, nor was it even suggested to him. (People v. Ritchie, 12 Utah, 180, 42 Pac. 209.)
It was held no defense to a prosecution under the pure food act, for an interstate shipment
of misbranded bottled water, that the shipment on which the indictment was based was
secretly induced by a government detective in order to create a basis for a criminal charge.
(United States v. Morgan (C. C.) 181 Fed. 587.)
And on a prosecution for selling goods bearing counterfeit labels, it is no defense that the
purchaser, acting with a special agent of the owners of the labels counterfeited, knew that the
labels on the goods purchased were counterfeits, and made the purchase for the purpose of
proving the fact of sale by the defendant and having him prosecuted. (People v. Hilfman, 61
App. Div. 541, 70 N. Y. Supp. 621.)
Henry P. Dalton, long the assessor of Alameda County, Cal., has been convicted recently
of bribery, after having been entrapped by the payment to him of marked currency.
In larceny and other crimes, where a want of consent of the individual affected is an
element of criminality, instigation or consent to the crime is a defense to prosecution, if it
negatives one of the essential elements of the crime charged, though not otherwise. Thus, in
Lowe v. State, 44 Fla.
33 Nev. 438, 454 (1910) State v. Smith
State, 44 Fla. 449, 32 South. 956, 103 Am. St. Rep. 171, the court said: The authorities are
abundant and the law unquestioned, that a taking by the voluntary consent of the owner or his
authorized servant or agent, even though with a felonious intent, does not constitute larceny.
But where the criminal design originates with the accused, and the owner does not in person
or by an agent or servant suggest the design, nor actively urge the accused on to the
commission of the crime, the mere fact that such owner, suspecting that the accused intends
to steal his property, in person or through a servant or agent, exposes the property or neglects
to protect it, or furnishes facilities for the execution of the criminal design, under the
expectation that the accused will take the property or avail himself of the facilities furnished,
will not amount to a consent in law, even though the agent or servant of such owner, by his
instructions, appears to cooperate in the execution of the crime.'
And in State v. Adams, 115 N. C. 775, 20 S. E. 722, it is said that the court correctly told
the jury that, if there was the guilty intent previously formed by the defendant to steal certain
property, and he carried out such design previously formed, he is guilty, notwithstanding the
owner of the property was advised of the intended larceny, appointed agents to watch him,
and could have prevented the theft, but did not do so, and allowed him to commit the theft,
with a view of having him subsequently punished.'
So, in Crowder v. State, 50 Tex. Cr. R. 92, 96 S. W. 934, it was held no defense to a
prosecution for the theft of mules that the owner had employed a detective in order to catch
defendant, who, he believed, had been stealing his stock, and that the detective, by direction
of the owner, apparently encouraged defendant's design and led him on, provided neither the
owner nor the detective induced the original intent on the part of the thief, though, if the
intent and purpose to steal originated with, and was suggested by, the detective, it would be a
taking with the consent of the owner, and the defendant would not be guilty."
33 Nev. 438, 455 (1910) State v. Smith
a taking with the consent of the owner, and the defendant would not be guilty.
In the note at the end of the Topolewski case (10 Am. & Eng. Ann. Cas. 631) it is said: It
is no doubt true, as a general proposition, that larceny is not committed when property is
taken with the consent of its owner, but it is difficult in some instances to determine whether
certain acts constitute, in law, such consent. (People v. Hanselman, 76 Cal. 460, 18 Pac. 425,
9 Am. St. Rep. 238.) Under the authorities, the rule seems to be well established that, where
the criminal design originates with the accused, and the owner does not in person or by an
agent or servant suggest the design, or actively urge the accused on to the commission of the
crime, the fact that such owner, suspecting that the accused intends to steal his property, in
person or through a servant or agent exposes the property, or neglects to protect it, or
furnishes facilities for the execution of the criminal design under the expectation that the
accused will take the property or avail himself of the facilities furnished, and will in
consequence thereof be captured or detected, does not amount to a consent in law, and the
taking under such circumstances, amounts to larceny. (Reg. v. Lawrence, 4 Cox C. C. 438;
Rex v. Eggington, 2 B. & P. 508, 2 Leach C. C. 913, 2 East, P. C. 494, 666; People v.
Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238; Lowe v. State, 44 Fla. 449, 32
South. 956, 103 Am. St. Rep. 171; Varner v. State, 72 Ga. 745; State v. Duncan, 8 Rob. (La.)
562; State v. Adams, 115 N. C. 775, 20 S. E. 722; State v. Covington, 2 Bailey (S. C.) 569;
Sanders v. State, 2 Shan. Cas. (Tenn.) 606; Alexander v. State, 12 Tex. 540; Pigg v. State, 43
Tex. 108.) See, also, Rex v. Ady, 7 C. & P. 140, 32 E. C. L. 469; Commonwealth v. Nott, 135
Mass. 269; State v. West, 157 Mo. 309, 57 S. W. 1071; State v. Jernagan, 4 N. C. 483;
Dodge v. Brittain, Meigs, 84; Connor v. State, 24 Tex. App. 245, 6 S. W. 138; Robinson v.
State, 34 Tex. Cr. 71, 29 S. W. 40, 53 Am. St. Rep. 701. And this is so, though the agent or
servant of such owner, by his instructions, appears to cooperate in the execution of the
crime.
33 Nev. 438, 456 (1910) State v. Smith
appears to cooperate in the execution of the crime. (Lowe v. State, 44 Fla. 449, 32 South. 956,
103 Am. St. Rep. 171.)
Over the citation of authorities, it is stated in 25 Cyc. p. 44: The fact that an agent of the
owner acts as a supposed confederate of the thief is no defense to the latter, provided the
original design was formed independently of such agent. So, where a detective employed by
the owner acts with the thief, the taking is none the less larceny. And so, where a person
approached by the thief as his confederate notifies the owner or the public authorities, and,
being authorized by them to do so, assists the thief in carrying out the plan, the larceny is
nevertheless committed.
In Bishop's New Criminal Law, vol. 1, sec. 262, the author says: If a man suspects that an
offense is to be committed, and instead of taking precautions against it sets a watch and
detects and arrests the offenders, he does not thereby consent to their conduct, or furnish them
any excuse. And it is not ordinarily otherwise, though the watching is accompanied by
artifice. Thus, in larceny, exposing property or neglecting to protect it, under the expectation
that a thief will take it, or furnishing any other facilities or temptations to such or any other
wrongdoer, is not a consent in law. Burglary furnishes a frequent illustration, in cases where
those intending to break into a house and steal tempt the occupant's servant to assist them,
and, after communicating the facts to the master, he is authorized to join them in appearance.
For what the burglars personally do under such an arrangement, they are by all opinions
responsible; but the English doctrine seems to be that if the servant opens the door while they
enter they are not guilty of breaking. In principle, probably they are not so if the servant is to
be deemed the master's agent, not theirs, in opening the door. But as they had requested him
to join them, and the master's consent was merely for their detection, the better view would
appear to be to consider him their agent in the breaking, and hold them responsible for it. See
Alexander v. State, 12 Tex.
33 Nev. 438, 457 (1910) State v. Smith
540; Roland v. Commonwealth, 82 Pac. 306, 22 Am. Rep.758.
Some of the cases seem to make a distinction between the assistance rendered by an
officer of the law and that rendered by the owner of the property, to aid the accused in the
execution of his design to steal. Here, if it be claimed that Sage, who was a deputy sheriff,
was acting for the company, instead of as an officer of the law, still the circumstances warrant
the conviction of the defendant. Although employed by the company to protect its property, it
is not shown that he and Zimmerman were authorized by the company to persuade and induce
Miller or the defendant to take the property, or to aid in its removal. And for the purpose of
detecting crime and entrapping the perpetrators they allowed the amalgam to be taken, but did
not plan, urge, or advise its taking, or handle it, or assist in its removal.
Under the testimony, indicating that the offense was planned by the defendant, and that
every act necessary to constitute grand larceny was done by his confederates, without the
taking of the amalgam being suggested or advised by the company or its agents, more reason
appears for holding the defendant guilty than in cases where accused persons have been
inveigled into selling liquor unlawfully or committing other offenses, and especially so when
they did not know that they were acting contrary to law. If any detective of the company had
designed or planned its taking, or had induced the defendant to take it and had assisted in its
removal, grounds would exist for his exculpation which do not appear in this case. If, instead
of acting as a feigned accomplice, Zimmerman had acted as a real accomplice, and without
notifying the company had done everything which he did according to his testimony, the
design being by the defendant and the taking in pursuance of that design by his accomplice
Miller, the conspiracy and acts resulting in the larceny of the amalgam, the thought, intent,
and deed constituting the crime for which they may justly be held responsible would not have
been less complete.
33 Nev. 438, 458 (1910) State v. Smith
It is claimed that the court erred in allowing witnesses to testify regarding the statements
made by Bart Knight at the house of Zimmerman, where Zimmerman had asked Knight to go
and receive a share of the money obtained from the amalgam, and where two men had been
secreted in a closet in advance, so as to overhear and note down the statements of Knight.
According to the testimony, the declarations of Knight, made at that time, related in part to
the taking of the amalgam and the division of the spoils, which had been agreed upon as a
part of the conspiracy, which was not ended, for amalgam was taken once later. (State v.
Ward, 19 Nev. 307, 10 Pac. 133.) These declarations, with the statements made to Knight by
Zimmerman, tended to prove that Zimmerman acted as a feigned, instead of a real
accomplice, so that this testimony would be allowed to support that of the real accomplice,
Miller, and warrant the conviction of the defendant. (Campbell v. Commonwealth, 84 Pa.
187; People v. Farrell, 30 Cal. 316; State v. Douglas, 26 Nev. 196, 99 Am. St. Rep. 688.)
Some of the statements made by Knight at that time, regarding the defendant, in no way
related to the conspiracy, and were not properly admissible. Among these was the one by
Knight that he had made thousands and thousands of dollars for the defendant. The inference
could be that this related to prior transactions, but whether legitimate or illegitimate does not
appear. While admitting that testimony indicating the making of this or other statements not
relating to matters connected with the conspiracy, and not tending to show that Zimmerman
was acting as a feigned accomplice, was not proper evidence, no specific objection was made
which required the trial court to segregate them from other declarations, which were
admissible. A general objection to the admission of testimony, unless the whole of it is
incompetent, is not sufficient. It is necessary to specifically point out the objectionable
portion. (Smiley v. Pearce, 98 N. C. 185, 3 S. E. 631; Holmes v. Lumber Company, 150
Mass. 535, 23 N. E. 305, 6 L. R. A. 283; State v. Hope, 100 Mo. 347, 13 S. W. 490, S L. R. A.
33 Nev. 438, 459 (1910) State v. Smith
v. Hope, 100 Mo. 347, 13 S. W. 490, 8 L. R. A. 608, and note.)
An objection to evidence on a specific ground waives other grounds. (Bailey v. Railroad
Company, 3 S. D. 531, 54 N. W. 596, 19 L. R. A. 653.)
Objection is also made to the testimony of Sage, regarding the statements made to him by
Zimmerman concerning the taking of the amalgam, and conversations between Zimmerman
and Miller. These also tended to prove that Zimmerman was not acting as a real accomplice.
It is further claimed that the court erred in the admission of the testimony of Allred, the
deputy sheriff, who stated that Hildebrandt said upon his arrest that Bart was a big boob, or
he never would have been caught, and that if he had done as he wanted him to he never
would have gone up there. The parties charged being under arrest, the conspiracy was at an
end. This testimony was not properly admissible on the trial of this defendant, and ought to
have been excluded; but the error in its admission appears to be harmless, because the witness
did not mention the defendant, and the statements said to have been made by Hildebrandt
were only against the interests of Hildebrandt and Knight.
The same principle would apply to the admission of the confessions of Miller that he had
taken the amalgam, a fact testified to directly by witnesses on the trial, and a fact apparently
conceded, and further proof of which would not injure the defendant. Errors which do not
actually prejudice or injure the defendant do not justify a reversal. (State v. Williams, 28 Nev.
421.)
Following the recommendation of the American Bar Association, the late legislatures in
some of the states have passed statutes somewhat similar to section 589 of our criminal
practice act (Comp. Laws, 4554), which provides that no error or mistake in criminal
proceedings shall render the same invalid, unless it had actually prejudiced the defendant, or
tended to his prejudice in respect to a substantial right. This section has been in force here for
half a century, having been passed by the first territorial legislature, in 1S61, and is
amplified in sections 452 and 619 of our new criminal procedure, effective January 1,
1912.
33 Nev. 438, 460 (1910) State v. Smith
first territorial legislature, in 1861, and is amplified in sections 452 and 619 of our new
criminal procedure, effective January 1, 1912.
We find no prejudicial error in the record, and the judgment of the district court is
affirmed.
I am unable to concur in the views of my learned associates in this case. In my judgment,
the undisputed evidence in this case establishes such a consent upon the part of the Goldfield
Milling and Transportation Company to the asportation of the amalgam by the defendant
Miller as to remove from the taking the essential element of trespass going to make up the
crime of larceny.
It appears from the testimony on the part of the State that the taking of the amalgam from
the plates of the Goldfield Milling and Transportation Company had been going on at
different times with the knowledge and acquiescence of the agents of the said company for a
period of about a month prior to the arrest of the defendant Miller.
It has not been contended, upon the part of the state, that Zimmerman and Sage were not
acting as the agents of the said milling and transportation company. They represented said
company, in so far as their acts were concerned. It is also manifest from their testimony that
both Zimmerman and Sage were deputy sheriffs, and that the removal of the amalgam from
the plates could not have been accomplished without the cooperation of Zimmerman, unless
Zimmerman himself be conceded to be an accessory before the fact. Miller testified that he
never had any conversation with Hildebrandt prior to the time Zimmerman told him, All
right, go ahead. Miller further testified that he never would have attempted a theft of the
amalgam, without having an understanding and agreement with Zimmerman.
It appears that when Zimmerman said to Miller, All right, on the 16th of January, that
Miller was not entirely satisfied to go ahead upon that occasion, but requested a
conference with Zimmerman the following day.
33 Nev. 438, 461 (1910) State v. Smith
entirely satisfied to go ahead upon that occasion, but requested a conference with Zimmerman
the following day. This conference was had in pursuance of Sage's instructions to
Zimmerman, and all subsequent acts upon the part of Miller in taking amalgam from the
plates were in pursuance of the understanding which he had with Zimmerman upon the
afternoon of the 17th of January. It is manifest from the testimony that it was practically
impossible for Miller to remove the amalgam without the cooperation of the watchman
Zimmerman, and Zimmerman so testified. The amalgam was removed from the plates in the
presence of Zimmerman and with his consent, and Zimmerman's actions were in accordance
with the directions of Sage, the chief detective of the company, and with the approval of the
attorney of the corporation. Zimmerman not only entered into an agreement with Miller as to
the manner in which the amalgam was to be taken, but further agreed that he was to give
certain signs to Miller, if necessary, that would warn him against possible detection by other
employees of the company. While it is true that Zimmerman did not participate in the original
design to steal amalgam from the plates of the milling company, he did cooperate with Miller
in perfecting the plan by which all of the amalgam was subsequently taken by the defendant
Miller.
Something is attempted to be made of the point that there was some disagreement in the
testimony of the state's witnesses, Miller and Zimmerman, and that the latter testified that the
former was in error in saying that he said, All right, go ahead; that he only said, All right.
This, to my mind, is a distinction without a difference, when it was the understanding that the
words all right were to be the signal for Miller to go ahead. Zimmerman himself testifies
that on the night following the second taking of amalgam, when Miller gave him $14 as his
part, that Miller said: It wasn't hardly worth taking that small amount off. He said we might
as well take more, to which I just assented. Upon another occasion (the last), prior to Miller's
arrest, Zimmerman testified relative to a conversation with Miller as follows: "After he had
looked at the plates and got ready to go to work, he says, 'Well, we might as well go a
little stronger and wind this thing up.' I says, 'Sure.'"
33 Nev. 438, 462 (1910) State v. Smith
Zimmerman testified relative to a conversation with Miller as follows: After he had looked
at the plates and got ready to go to work, he says, Well, we might as well go a little stronger
and wind this thing up.' I says, Sure.'
True, Sage testifies that he instructed Zimmerman not to consent, but there can be no
question but that Zimmerman was instructed to assume the attitude of consenting.
Zimmerman testified that he reported everything to Sage, and that he was acting under Sage's
instructions.
There is no conflict in the authorities upon the proposition of law that, where the taking is
with the consent of the owner, there is no larceny; but the difficulty is in applying the law to
the facts of the given case. It is conceded in the prevailing opinion that this is a border-line
case, and the only difference between my associates and myself is as to which side of the line
it falls. In cases of this kind, it is necessary to keep clearly in mind that it is the question of
consent or nonconsent, and not the mala fides of the defendant, which makes the taking a
larceny or not.
The following excerpt from the case of Williams v. State, 55 Ga. 391, has been frequently
cited with approval in cases of this character: It seems to be settled law that traps may be set
to catch the guilty, and the business of trapping has, with the sanction of courts, been carried
pretty far. Opportunity to commit crime may, by design, be rendered the most complete, and
if the accused embrace it he will still be criminal. Property may be left exposed for the
express purpose that a suspected thief may commit himself by stealing it. The owner is not
bound to take any measures for security. He may repose upon the law alone, and the law will
not inquire into his motive for trusting it. But can the owner directly, through his agent, solicit
the suspected party to come forward and commit the criminal act, and then complain of it as a
crime, especially where the agent to whom he has intrusted the conduct of the transaction,
puts his own hand into the corpus delicti, and assist the accused to perform one or more of
the acts necessary to constitute the offense?
33 Nev. 438, 463 (1910) State v. Smith
accused to perform one or more of the acts necessary to constitute the offense? Should not the
owner and his agent, after making everything ready and easy, wait passively and let the
would-be criminal perpetrate the offense for himself in each and every essential part of it? It
would seem to us that this is the safer law, as well as the sounder morality, and we think it
accords with the authorities. * * * It is difficult to see how a man may solicit another to
commit a crime upon his property, and when the act to which he was invited has been done
be heard to say that he did not consent to it. In the present case, but for the owner's
incitement, through his agent, the accused may have repented of the contemplated wickedness
before it had developed into act. It may have stopped at sin, without putting on the body of
crime. To stimulate unlawful intentions, with the motive of bringing them to punishable
maturity, is a dangerous practice. Much better is it to wait and see if they will not expire.
Humanity is weak; even strong men are sometimes unprepared to cope with temptation and
resist encouragement to evil.
In the case of Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139, the court said:
A contemplated crime may never be developed into a consummated act. To stimulate
unlawful intentions for the purpose and with the motive of bringing them to maturity, so the
consequent crime may be punished, is a dangerous practice. It is safer law and sounder morals
to hold, where one arranges to have a crime committed against his property or himself, and
knows that an attempt is to be made to encourage others to commit the act by one acting in
concert with such owner, that no crime is thus committed. The owner and his agent may wait
passively for the would-be criminal to perpetrate the offense, and each and every part of it, for
himself, but they must not aid, encourage, or solicit him that they may seek to punish.
Where the plan originates with the accused, and the owner, upon learning of the same,
actively urges or encourages the defendant on to its commission, the owner will be
deemed to have consented.
33 Nev. 438, 464 (1910) State v. Smith
owner, upon learning of the same, actively urges or encourages the defendant on to its
commission, the owner will be deemed to have consented.
In the recent case of Topolewski v. State, 130 Wis. 244, 109 N. W. 1037, 7 L. R. A. (N. S.)
756, 118 Am. St. Rep. 1019, 10 Am. & Eng. Ann. Cas. 627, which upon the facts is similar in
many respects to the case at bar, the court said: The logical basis for the doctrine above
discussed is that there can be no larceny without a trespass. So if one procures his property to
be taken by another intending to commit larceny, or delivers his property to such other, the
latter purposing to commit such crime, the element of trespass is wanting, and the crime not
fully consummated, however plain may be the guilty purpose of the one possessing himself of
such property. That does not militate against a person's being free to set a trap to catch one
whom he suspects of an intention to commit the crime of larceny, but the setting of such trap
must not go further than to afford the would-be thief the amplest opportunity to carry out his
purpose, formed without such inducement on the part of the owner of the property as to put
him in the position of having consented to the taking. If I induce one to come and take my
property, and then place it before him to be taken, and he takes it with criminal intent, or if,
knowing that one intends to take my property, I deliver it to him, and he takes it with such
intent, the essential element of trespass involving nonconsent requisite to a completed offense
of larceny does not characterize the transaction, regardless of the fact that the moral turpitude
involved is no less than it would be if such essential were present.
When Zimmerman, under instructions from Sage, said to Miller, All right, or All right,
go ahead, whichever was the language used, and Miller declined to proceed without a more
thorough understanding with Zimmerman, which understanding was had by directions from
Sage to Zimmerman, and thereafter the amalgam was taken in pursuance of that
understanding and in the immediate presence of Zimmerman, and with his knowledge and
apparent approval, under instructions from his superiors, I think a case is presented
which amounts to consent on the part of the milling company.
33 Nev. 438, 465 (1910) State v. Smith
edge and apparent approval, under instructions from his superiors, I think a case is presented
which amounts to consent on the part of the milling company.
The fact that there is evidence in this case that would support a conclusion by the jury that
the several defendants had originated the plan to commit a larceny, and had conspired to that
end, is not alone sufficient to constitute the asportation of the amalgam, in pursuance of that
conspiracy, a larceny.
The several rules deducible from the authorities are, in my judgment, substantially as
follows:
Where the owner, suspecting criminal intentions upon the part of the defendant, originates
a plan to entrap him and actively aids in carrying it out, the courts universally hold no larceny
is committed.
Upon the contrary, where the scheme originates with the accused, a larceny is held to have
been committed, where the owner goes no farther than to facilitate the previously designed
plan, and passively permits its being carried out by the accused in every material part.
But, although the scheme originates with the accused, if the owner, upon becoming aware
of the same, actively encourages or aids the accused to carry out the plan, in order that he may
seek to punish, no larceny is committed, for the reason that such aid or active encouragement
is deemed to amount to consent. Especially is this so where the scheme is not feasible without
the cooperation of the owner's agent, and the owner, as in this case, directs the agent to so
cooperate.
Some very serious questions are presented upon the record as to the admissibility of
evidence; but, if my view of the case is correct upon the main point, it would be unnecessary
to consider them, and for that reason I express no opinion upon them.
I think the judgment should be reversed.
____________
33 Nev. 466, 466 (1910) Ex Parte Smith
[No. 1913]
Ex Parte SMITH
1. StatutesConstructionIntention of Legislature.
In the construction of statutes, the intention of the legislature controls the courts, and should be
ascertained and followed.
2. StatutesConstructionEffect to Whole Statute.
Statutes should be construed so that, as far as possible, effect may be given to all the language of an
act.
3. StatutesConstructionGeneral and Special Provisions.
In the construction of statutes, a special provision will control as against a general one.
4. Banks and BankingOfficersOffensesAssent to Deposits When Bank Insolvent.
An indictment charging the accused with assenting to the receipt of bank deposits was framed under
the act of March 13, 1909 (Stats. 1909, c. 92), which by section 1 makes it a crime for a bank officer to
receive deposits or to assent to the receipt of deposits when the bank is known to be insolvent, and by
section 2 provides that any officer of an incorporated bank, having authority to close the bank or to
prevent the receipt of deposits, who shall not exercise such authority when he knows that the bank is
insolvent, shall be deemed to have assented to the receipt of deposits. The indictment contained no
allegations that the accused had any authority to close the bank, or to prevent the receipt of deposits, or
that the accused personally received deposits knowing the bank to be insolvent. Held, that, under section
2, considered with the direct definition of section 1 as to the offense of assenting to the receipt of
deposits, the assent required by the statute implied permission, and presupposed some inherent power
to withhold assent.
5. Banks and BankingOfficersStatutory OffensesAssent to Deposit When Bank InsolventEvidence.
Under an indictment for assenting to the receipt of deposits by an officer of an incorporated bank,
contrary to act of March 13, 1909 (Stats. 1909, c. 92), which by section 1 makes it a crime for any bank
officer to receive or to assent to the receipt of deposits knowing the bank to be insolvent, and by section 2
provides that any bank officer having authority to close the bank or to prevent the receipt of deposits,
who does not exercise such authority when the bank is known to be insolvent, shall be deemed to have
assented to the receipt of deposits, and making the failure of such bank within thirty days after the receipt
of any deposits prima facie evidence of such officer's knowledge of its insolvency, the presumption of
knowledge of insolvency by its terms applies only to such officers as have power to close the bank or to
prevent deposits.
6. StatutesConstructionConflicting Provisions.
When two provisions of a statute are not reconcilable, the last one controls, as being the latest
expression of the legislative will.
7. Banks and BankingStatutory OffensesWhat Officers Guilty.
Under the act of March 13, 1909 (Stats. 1909, c. 92), only such officers as were present at the receipt
of deposits, or who actually received the deposits, or who had authority to close the bank or to prevent
the receipt of deposits, could be guilty of the offense of assenting to the receipt of deposits.
8. Banks and BankingPower of President.
Unless specially authorized by the board of directors, the president or a director of a bank is not
legally authorized to close the bank or to prevent the receipt of deposits by the bank.
9. StatutesConstructionClasses of StatutesPenal Statutes.
Penal statutes must be liberally construed in favor of the accused, and it must appear that he
committed acts which are clearly made an offense by the statute.
10. Banks and BankingStatutesConstructionReceiving Deposits When InsolventDeemed.
The title of the act of March 13, 1909 (Stats. 1909, c. 92), in addition to referring to the offenses
declared, states that its purpose is to establish a rule of evidence in connection therewith. Section 2 makes
the failure of a bank within thirty days after the receipt of deposits prima facie evidence of the officers'
knowledge of its insolvency, and in a previous part it is provided that any officer having authority to
close the bank or to prevent the receipt of deposits, who does not exercise such authority, shall be
deemed to have assented to the receipt of deposits. Held, that only the part of the section relating to the
knowledge imputed from the bank's failure is evidential in character, while the word deemed, as used in
the section, means adjudged, in the sense of constituting a crime, instead of a rule of evidence.
11. Criminal LawAccessory Before the FactStatutesOffense.
The act relating to crimes and punishments (Stats. 1861, c. 28), section 10 of which defines an
accessory before the fact and makes him a principal, does not apply as against an accessory before the
fact under an indictment which does not allege facts sufficient to constitute an offense by the principal.
12. Banks And BankingOfficersStatutory Offenses.
There is nothing in the act of March 13, 1909 (Stats. 1909, c. 92), which by section 1 penalizes the
receipt or the assent to the receipt of deposits by a bank officer, who knows the bank to be insolvent, and
by section 2 provides that a bank officer having authority to close the bank or to prevent the receipt of
deposits, and failing to exercise such authority, is deemed guilty of assenting to the receipt of deposits,
which makes an officer of an incorporated bank criminally liable simply because he is such officer with
knowledge of the bank's insolvency, or because deposits are being received for the bank by some other
officer.
13. Criminal LawDischarge of Accused on Habeas CorpusInsufficiency Of IndictmentEffectNew
Indictment.
Where the court in habeas corpus reviews an indictment framed under the act of March 13, 1909
(Stats. 1909, c. 92), and holds it to allege no offense, a discharge of the petitioner will not prevent a new
indictment upon evidence bringing the case within the statute.
Original Proceeding. Application by Oscar J. Smith for a writ of habeas corpus for release
from commitment under an indictment. Petitioner discharged from the indictment.
S. S. Downer and Boyd & Salisbury (Oscar J. Smith, in pro. per.) for Petitioner:
The intention of the legislature controls the courts. (Maynard v. Newman, 1 Nev. 271;
Maynard v. Johnson, 2 Nev. 25; Brown v. Davis, 1 Nev. 409.)
Effect shall be given to all the language of the statute of March 13, 1909. (Stats. 1908-09,
95; 26 Am. & Eng. Ency. Law, 616, and cases cited; Leet v. John Dare S. M. Co., 6 Nev. 218,
222.)
Penal statutes must be construed liberally in favor of an individual. (State v. Wheeler, 23
Nev. 152; In re Davis, 33 Nev. 309.)
Special provision of statute will control against a general provision. (26 Am. & Eng. Ency.
Law, 618, 619, and cases cited.)
When two provisions of a statute are irreconcilable, the last in order of position must
control. (26 Am. & Eng. Ency. Law, 619, 620; Ex Parte Hewlett, 22 Nev. 333.)
The language of section 2 limits, defines and controls the language of section 1, so that
only officers having authority to close a bank or to prevent the reception of deposits therein
are criminally liable for assenting to the reception of deposits in an insolvent bank. (26 Am.
& Eng. Ency. Law, 616, 619, 620; Leet v. John Dare S. M. Co., 6 Nev. 218, 222; State v.
Wheeler, 23 Nev. 152; In re Davis, 33 Nev. 309; Stats. 1908-09, 95, 251, 254, 263, 265-267.)
It is essential that the indictment set forth the authority of the officer to close the bank or
to prevent the reception of deposits therein.
ity of the officer to close the bank or to prevent the reception of deposits therein. (10 Ency. Pl.
& Pr. 474; State v. Chapman, 6 Nev. 320, 333; 10 Ency. Pl. & Pr. 486, 487, 488; Com. v.
Barrett, 108 Mass. 303.)
Statutes in pari materia shall be construed with reference to each other. (10 Ency. Pl. &
Pr. 485; Com. v. Barrett, 108 Mass. 303; State v. Hoover, 5 Nev. 141; State v. Rogers, 10
Nev. 319; State v. Donnelly, 20 Nev. 214.)
That the penal statutes of March 13, 1909, and the banking act of March 24, 1909, are in
pari materia, in so far as each treats of and refers to insolvent banks.
That the state bank examiner and the state banking board are public officers. That the state
is bound by the acts of its officers within the scope of their authority. That the examiner and
banking board had full power and authority to make inquisitorial examinations of the bank, to
determine its solvency or insolvency, and to compel the closing of its doors. That the officers
of the bank had a right to rely upon the acts of the said public officers, and, in the absence of
fraud, collusion or wilful withholding of information, are not liable to indictment as the result
of having so relied, and the state is estopped.
That no criminal liability could attach to the officers of the bank until after an adjudication
of insolvency had been made by the banking board, and the examiner, or some other person,
duly ordered to take charge of the bank pending application for receiver, and then only after
such action by the board had been disregarded by the bank and further deposits received.
That the examiner and banking board must be presumed to have done their duty (in the
absence of allegations of fraud, etc.), and the bank must be conclusively presumed to have
been solvent prior to the date when action was actually taken by said board.
The indictment must contain all material allegations showing what action was taken by
these public officers; that the same were disregarded by the bank; and that deposits were
received after such action was had. (26 Am. & Eng. Ency. Law, 480; Wallace v. Hull, 28 Ga.
68; Walrod v. Ball, 9 Barb. 271; Coghill v. Boring, 15 Cal. 219; State v. Chapman, 6 Nev.
320, 333; Com. v.
Walrod v. Ball, 9 Barb. 271; Coghill v. Boring, 15 Cal. 219; State v. Chapman, 6 Nev. 320,
333; Com. v. Barrett, 108 Mass. 303.)
Lewers & Henderson, R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy
Attorney-General, for Respondent:
On the hearing of this application, the state will rely upon the following authorities in
addition to the authorities already called to the attention of the court on the former argument:
An indictment need set forth only the ultimate facts and allegations of evidence are
improper. (State v. Chapman, 6 Nev. 320, 330; People v. Outeveras, 48 Cal. 19; Baxter v.
People, 3 Gilman, 381.)
Section 2 of the act of March 13, 1909 (Stats. 1909, p. 95), does not limit or control the
definition of the crime set forth in section 1, but merely furnishes a ruling of evidence
creating a legal presumption upon the showing that certain facts exist. Section 1 of the statute
makes the knowing assent to the reception of a deposit a crime. Section 2 provides a method
of proving such assent and also a method of proving such knowledge. Both these methods are
intended to cover cases where actual knowing assent or actual knowledge of insolvency did
not exist or could not be proven.
Section 2 provides that upon the showing of certain facts a legal presumption arises that
there was assent to the reception of a deposit and that upon the showing of other facts, a legal
presumption arises that there was knowledge of the insolvency of the bank. Presumptions of
law need not be averred in an indictment. (Comp. Laws, 4210; Beale, Crim. Pl. & Pr., sec.
93; Spaulding v. People, 172 Ill. 40; Com. v. Goulding, 135 Mass. 552; State v. Whalen, 98
Mo. 222.)
Per Curiam:
The petition for a writ of habeas corpus alleges an unlawful detention and confinement of
petitioner under a bench warrant based upon an indictment charging him with assenting
to the reception of a deposit of money by an incorporated bank.
a bench warrant based upon an indictment charging him with assenting to the reception of a
deposit of money by an incorporated bank. It is claimed that the alleged felony is not a public
offense under the laws of the State of Nevada; that the act under which the indictment was
found is in contravention of section 14 of article 1 of the state constitution, which provides
that there shall be no imprisonment for debt, except in cases of fraud, libel, and slander; that
it is not within the power of the legislature to declare the mere nonperformance of a contract
of indebtedness a felony and to punish the commission thereof by imprisonment; that the
statute is also in contravention of section 8 of article 1 of the state constitution, which
provides that no person shall be deprived of life, liberty, or property without due process of
law; that the mere assenting to a deposit by officers of a bank who are not charged with
having been personally present, and without having knowledge of the alleged offense, is not a
public offense; and that it is not within the legislative competency to declare it so.
The act approved March 13, 1909 (Stats. 1909, p. 95), under which the indictment was
found, is as follows:
Section 1. Every officer, director, cashier, managing member, manager, clerk, person,
party or agent of any bank, banking corporation, association or firm, banking house, banking
exchange, brokerage deposit company, private bank, and every person, company or
corporation, engaged in whole or in part in banking, brokerage, exchange or deposit business,
in any way, who shall accept or receive on deposit in such bank or banking institution, as
aforesaid, with or without interest, from any person, any money, bank bills or notes, or
certificates, or currency, or other notes, checks, bills, bonds, stocks, drafts, or paper
circulating as money, when he knows, or has good reason to know, that such person, bank,
banking corporation, association or firm, banking house, banking exchange, brokerage
deposit company, or private bank as aforesaid, is insolvent, and every person knowing of such
insolvency who shall be accessory to, or permit, or connive at, or assent to, the accepting or
receiving on deposit therein or thereby any such deposit as aforesaid, shall be guilty of a
felony, and punished by imprisonment in the state prison for not less than one, nor more
than ten years.
nive at, or assent to, the accepting or receiving on deposit therein or thereby any such deposit
as aforesaid, shall be guilty of a felony, and punished by imprisonment in the state prison for
not less than one, nor more than ten years.
Sec. 2. If any officer, director, cashier or manager of any incorporated bank, having
authority to close any banking institution or to prevent the reception of deposits therein, shall
not exercise such authority and prevent the receipt of deposits therein when he knows such
bank is insolvent or in failing circumstances, he shall be deemed to have assented to the
reception of any deposits received therein, and the failure, suspension or involuntary
liquidation of any such bank or banking corporation within thirty days from and after the time
of receiving any deposit therein shall be prima facie evidence of knowledge on the part of
such officer, director, cashier or manager that such bank was insolvent or in failing
circumstances at the time such deposit was received therein; provided, that if any director at
any meeting of the directors of any such corporation held during the thirty days next
preceding the failure, suspension or involuntary liquidation of any such bank or banking
corporation, shall record his vote to receive no more deposits therein or to close such bank, he
shall not be deemed to have assented to the reception of any deposit in such bank, within the
meaning of this section.
The indictment charges that the petitioner, as the president of the Eureka County Bank, a
banking corporation, organized under the laws of the State of Nevada, and conducting and
maintaining its banking institution in the town of Eureka, did then and there knowingly,
unlawfully, and feloniously assent to the reception by said banking institution of a deposit of
money, consisting of $60 in gold coin. The indictment contains no allegation that the
defendant had any authority to close the bank or prevent the reception of deposits therein, and
it is claimed that, without an allegation that the defendant had such authority and failed to
exercise it, the indictment fails to allege any public offense. We understand that it is
conceded, and not denied by the state, that he had no such authority, unless it was
possessed by him as a matter of law by reason of the fact that he was the president of the
bank.
that it is conceded, and not denied by the state, that he had no such authority, unless it was
possessed by him as a matter of law by reason of the fact that he was the president of the
bank.
In Ex Parte Pittman, 31 Nev. 43, 22 L. R. A. (N. S.) 266, we held that the act of March 29,
1907, making it a crime to receive banking deposits knowing the bank to be insolvent, was
not unconstitutional, and was not invalid as class legislation.
In Ex Parte Rickey, 31 Nev. 82, we held that where the accused avers that the indictment
does not allege any offense, and the state admits that the facts are stated therein, the court on
habeas corpus must consider the question whether the indictment states an offense, and if it
does not the accused must be discharged, and that the court's jurisdiction in criminal cases
extends only to such matters as the law declares to be criminal. At the time that case arose the
statute provided a penalty against every officer of any bank who received a deposit knowing
that the bank was insolvent, but did not provide a penalty against, nor make any provision
regarding, the assent to the reception of deposits.
If the material facts are conceded to be alleged in the indictment, and it is not claimed that
it is not properly drawn, and those facts do not constitute any offense under the statute, it
would not be fair to the petitioner, nor to the state or the taxpayers of Eureka County, to
remand him to custody and incur the trouble and expense of a trial, when it would have to be
finally held that it was not alleged or shown that the accused had committed any acts which
constitute an offense under the statute. There is an allegation that the petitioner received the
deposit, but none that he received it for the bank, or for himself, or personally, or at Eureka
County, or at any designated time or place. This allegation does not include any of the
ordinary and necessary facts which charge the petitioner with being guilty of receiving
personally the deposit for the bank knowing that it was insolvent. We understand that it was
not made for the purpose of charging, and there is no contention, that the petitioner
actually received the deposit for the bank.
ing, and there is no contention, that the petitioner actually received the deposit for the bank. If
this allegation was intended as a material one, or if it is claimed that it has any effect, it is on
the theory that the actual receipt by some other officer or agent of the deposit in the bank was
in law a receipt or an assent to the receipt by the petitioner, although he may not have been
present.
The only offense sought to be set out in the indictment is that of assenting to the reception
of a deposit, and the important question to be determined relates to what constitutes the
offense of assenting to the reception of a deposit by an officer of an incorporated bank when
the deposit is not actually taken by him, but is received by another acting for the bank. The
indictment in the Rickey case charged that the deposit was received by the president of the
bank, but alleged that it was received by and through the receiving teller. An attempt was
made to hold the president of the bank criminally responsible for the receipt of the deposit. It
was desired to have his legal responsibility in this regard determined upon petition for a writ
of habeas corpus, and the facts which could be proved were conceded, in order that, if it were
determined that he was not legally responsible for the act of the teller in receiving the deposit,
an expensive trial might be avoided. It was held that the receipt of a deposit by an officer or
agent in a private bank was in law the receipt of a private banker, for which he was
responsible, but that a deposit made in an incorporated bank was in law received by the
corporation, and that the president or other officer of an incorporated bank was not
responsible for the receipt of deposits by some other officer or agent of the bank.
Applying to the language of the act of the legislature quoted above the ordinary rules of
construction that the intention of the legislature controls the courts and should be ascertained
and followed, that effect should be given to all the language of an act as far as possible, that
penal statutes must be liberally construed in favor of the individual, that a special provision
will control as against a general one, and that when two provisions are irreconcilable the
last one controls as being the later expression of the legislative will, what are the
essential elements to constitute an officer of an incorporated bank guilty of assenting to
the receiving of a deposit?
general one, and that when two provisions are irreconcilable the last one controls as being the
later expression of the legislative will, what are the essential elements to constitute an officer
of an incorporated bank guilty of assenting to the receiving of a deposit?
If the act did not contain section 2, and the question were wholly dependent upon section
1, it might be necessary to determine the meaning of the language in the latter part of section
1, and more particularly whether the words assent to the accepting or receiving on deposit
require some affirmative acquiescence or presence or knowledge of the making of the deposit
on the part of the person accused in order to make him guilty of assenting, or whether any
officer, director, agent, or person, including janitors, bookkeepers, typists, telegraph
operators, depositors, or others, who might acquire some information indicating that the bank
was insolvent, would be guilty of assenting to the reception of deposits in the bank, when
they had no authority or power to prevent the reception of such deposits, or were not present,
or were far distant, and did nothing in relation to the deposit. But the language just quoted is
followed in the next sentence and at the beginning of section 2 by other words which relate
more directly to and define the offense of assenting to the reception of deposits by officers of
an incorporated bank, as follows: If any officer, director, cashier or manager of any
incorporated bank, having authority to close any banking institution or to prevent the
reception of deposits therein, shall not exercise such authority and prevent the receipt of
deposits therein when he knows such bank is insolvent or in failing circumstances, he shall be
deemed to have assented to the reception of any deposits received therein.
It may seriously be questioned whether any officer of an incorporated bank, other than one
having authority to prevent the reception of deposits, by closing the bank or otherwise, as a
matter of law, could be deemed to assent to a reception of a deposit therein. What other
officer, to any purpose or effect, could refuse an assent? Does not the word "assent," as
used ordinarily in statutes, presuppose some inherent power to withhold assent?
not the word assent, as used ordinarily in statutes, presuppose some inherent power to
withhold assent? Of what force would it be, ordinarily, for a mere bookkeeper or receiving
teller in a bank, for example, to express a refusal of assent to a reception by some other
person of a deposit in a bank? If the word assent, as used in this statute, carries with it a
supposition of power in the person assenting to refuse that assent, then the legislature in
section 2 of the act in question, has comprehended all who could assent, and it has
unquestionably comprehended all who could give effective assent.
In Cortis v. Dailey, 21 App. Div. 1, 47 N. Y. Supp. 454, it was held that assent implies
permission, so that, where a sheriff did not know that a prisoner had been absent from the jail
until informed of it after his death, he will not be held to have assented to an escape.
See, also, Patterson v. Minn. Mfg. Co., 41 Minn. 84, 42 N. W. 926, 4 L. R. A. 745, 16
Am. St. Rep. 671; 1 Words and Phrases, p. 546.
The rule of evidence as to knowledge of insolvency, contained in section 2 of the act, by
its terms applies only to such officers as have power to prevent deposits. There is not a case
that we have been able to find where a conviction of an officer of an incorporated bank for
assenting to the reception of a deposit in a bank has been sustained, where the officer did not
have control over the receiver of the deposit. It may be that the legislature intended to avoid
any question in this regard by expressing clearly what constituted an assent to a reception of a
deposit in an incorporated bank, instead of leaving it an open question for the courts to solve
after an expensive litigation. In any event, the legislature has in section 2 defined what
constitutes an assent, and that is controlling on this court.
Under the rules of construction that all the language of the act is to be considered, and that
the intention of the legislature is to be ascertained and followed, that a special provision will
prevail as against a general one, and that a later provision will control an earlier one, it is
apparent that the legislature has provided that any officer or director of an incorporated
bank, having authority to close the bank or to prevent the reception of deposits therein,
who shall not prevent the receipt of deposits when he knows the bank is insolvent or in
failing circumstances, shall be guilty of assenting to the reception of deposits received.
or director of an incorporated bank, having authority to close the bank or to prevent the
reception of deposits therein, who shall not prevent the receipt of deposits when he knows the
bank is insolvent or in failing circumstances, shall be guilty of assenting to the reception of
deposits received. Unless we ignore and set aside this later provision of the statute, which
relates specifically to the assent by an officer of an incorporated bank to the reception of a
deposit, the legislature has provided as one of the conditions of making the officer or director
of an incorporated bank guilty of assenting to the receipt of deposits that he have the authority
to close the bank or to prevent the reception of deposits.
Unless we ignore this language in section 2, and set aside this provision of the statute,
which under the rules stated is a controlling one, how can we hold that an officer or director
is guilty of assenting to the reception of deposits, if he was not clothed with authority to close
the bank or prevent the reception of deposits, when the legislature has specifically provided
that he is guilty of assenting to the reception of deposits if he has such authority and does not
exercise it to prevent their reception? We feel that we cannot ignore, set aside, or repeal this
provision, and hold that any officer or director of an incorporated bank is guilty of having
assented to the reception of deposits therein, when he was not present at the time the deposit
was made, and did not have authority to close the bank or prevent the reception of deposits,
which is made by the statute an ingredient of the offense by an officer of an incorporated
bank of assenting to the reception of a deposit.
The act relating to the incorporation of banks places the control in a board of directors, and
there it remains unless delegated by the board. Unless specially authorized by the board of
directors, the president or a director of a bank is not legally authorized to close the bank, or to
prevent the reception of deposits by the bank, and is as void of power in this regard as the
president or director of a railroad company to stop the operation of trains or other business
of the company.
or other business of the company. It is not claimed that the accused had been given any such
authority by the board of directors.
In the Rickey case we said: The corporation is an artificial person, a distinct legal entity.
(Edwards v. Carson W. Co., 21 Nev. 479.) The deposits received into such bank become the
property of the corporation. (Smith's Cash Store v. First Nat. Bank, 149 Cal. 32, 84 Pac. 663,
5 L. R. A. (N. S.) 870.) The corporation is the principal, and its officers are its agents. Both
the president and the receiving teller, acting within the scope of their authority, are agents of
the same principal, and hence are not agents of each other. (10 Cyc. 771, 772, 831.) The
president of a bank may, or may not, under the by-laws, or by authority conferred by the
board of trustees or directors, have larger powers than a receiving teller, for example, and
may even have direction and control over his acts; but this is not because he is a principal in
any legal sense of the word. His acts, within the scope of his powers, are the acts of the
corporation, the real principal. As an individual the president can exercise no legal power or
control.
Concerning the ordinary powers of the president of a corporation, Cook, in his work on
Stock and Stockholders and Corporation Law, 716, says: The general rule is that the
president cannot act or contract for the corporation any more than any other one director. The
question has frequently been before the courts, and many decisions have been rendered in
regard to it. The question seems to have arisen in many forms, and the great weight of
authority holds that a president has no inherent power to represent or contract for the
corporation. His duties are confined to presiding and voting as a director.'
Judge Thompson, one of the most eminent authorities upon corporation law, and author
of the chapter on corporations in Cyc., says: The president of a private corporation is, as the
term implies, the presiding officer of its board of directors and of its shareholders when
convened in general meeting.
vened in general meeting. The office itself, however, confers no power to bind the
corporation or control its property. The president's power as an agent must be sought in the
organic law of the corporation, in a delegation of authority from it, directly or through its
board of directors, formally expressed or implied from a habit or custom of doing business.'
(10 Cyc. 903.) The appointment of a president of a corporation to the office of general
superintendent or manager necessarily invests him with the powers incident to that office or
agency.' (10 Cyc. 909.)
But whether acting strictly as president, or in the added capacity of general manager, he is
the agent of the corporation, and not a principal. Referring specifically to the powers of a
bank president, the following is from 5 Cyc. 468: In some cases a president receives only a
nominal salary, is expected to devote only a portion of his time to the business, and is not
required to exercise the same degree of care and foresight as a president who is the real head
and manager, and who possesses all the authority of the cashier. He may, however, be
authorized by the directors to do anything within the authority of the bank's charter, except
those positive requirements that are personal and cannot be delegated; but, when he goes
beyond the scope of his usual authority, it must be shown that in some way his act was
authorized by the directors.'
The following are some of the expressions made by this court which are pertinent
regarding the construction of the statute before us:
Where the language of a statute is plain, its intention must be deduced from such
language, and courts have no right to go beyond it. (State ex rel. Lewis Hess v.
Commissioners of Washoe County, 6 Nev. 104.)
The duty of every court in construing a statute is to seek the legislative intent, to reach the
object sought to be expressed and accomplished; but in so doing a court is bound by rules. It
cannot go fishing in the minds of its members, or the legislative mind, to reach the desired
end; and the first step is, if possible, to ascertain the intent from the language of a
statute, and, when that is clear and unambiguous, then inquiry stops, because the law
says it shall stop."
end; and the first step is, if possible, to ascertain the intent from the language of a statute, and,
when that is clear and unambiguous, then inquiry stops, because the law says it shall stop.
(Virginia and Truckee Railroad Co. v. Commissioners of Lyon County, 6 Nev. 69.)
A fundamental principle in all construction is that where the language used is plain and
free from ambiguity, that must be the guide. We are not permitted to construe that which
requires no construction. (State v. Clarke, 21 Nev. 337, 18 L. R. A. 313, 37 Am. St. Rep.
517.)
In Torreyson v. Board of Examiners, 7 Nev. 19, it was held that no part of a statute
should be rendered nugatory, nor any language be turned to mere surplusage, if such
consequences can properly be avoided.
In Long v. Culp, 14 Kan. 412, the court held that, where one section of a statute treats
specially of a matter, it will prevail as to that matter over other sections in which incidental
reference is made. See, also, State v. Commissioners, 37 N. J. Law, 228.
Mr. Sutherland, in his work on Statutory Construction, secs. 157, 158, 267, says: When
the legislator frames a statute in general terms, or treats a subject in a general manner, it is not
reasonable to suppose that he intends to abrogate particular legislation to the details of which
he had previously given his attention, applicable only to a part of the same subject, unless the
general act shows a plain intention to do so. Where there is in one act, or several
contemporaneously passed, specific provisions relating to a particular subject, they will
govern in respect to that subject as against general provisions contained in the same acts.
Where the intention is manifest, a proviso, or qualifying words or clauses found in the middle
of a sentence, may be placed at the end; or, when inserted in one section, they may be applied
to the matter of another section.
As said in Hand v. Stapleton, 135 Ala. 162, 33 South. 690: The rule is, as between
conflicting sections of the same act, the last in the order of arrangement will control.
trol. (33 Am. & Eng. Ency. Law, 1st ed., pp. 310, 311; Endlich on Interpretation of Stat.
133.)
In Branagan v. Dulaney, 8 Colo. 408, 8 Pac. 669, it was held that as between conflicting
statutes the latest in date will prevail, and as between conflicting sections of the same statute
the last in order of arrangement will control.
In State v. Commissioners, 36 Ohio St. 326, it was held that in so far as two sections are
irreconcilable with each other effect must be given to the latter.
In Re Richards, 96 Fed. 935, 37 C. C. A. 634, the United States Circuit Court of Appeals
held that subdivisions c and f of section 67 of the bankruptcy act (Act of July 1, 1898, c.
541, 30 Stat. 564, 565, U. S. Comp. St. 1901, pp. 3449, 3450) are antagonistic and
irreconcilable, and that in any case of conflict between them the former must give way and
the latter prevail. The district court decided the same way in Re Tune (D. C.), 115 Fed. 906.
In Van Horn v. State, 46 Neb. 62, 64 N. W. 365, it was held that, where different parts of
the same statute are in irreconcilable conflict, the last words stand and those in conflict
therewith are disregarded. (Albertson v. State, 9 Neb. 429, 2 N. W. 742, 892.)
In Brown v. County Commissioners, 21 Pa. 42, the court said: When two statutes are so
flatly repugnant that both cannot be executed, and we are obliged to choose between them,
the later is always deemed a repeal of the earlier. This rule applies with equal force to a case
of absolute and irreconcilable conflict between different sections or parts of the same statute.
The last words stand, and others which cannot stand with them go to the ground.
Bishop, in his work on Written Laws, at sections 64, 65, says: Where there are words
expressive of a general intention, and then of a particular intention incompatible with it, the
particular must be taken as an exception to the general, and so all the parts of the act will
stand. And, as a broad proposition, general words in one clause may be restrained by the
particular words in a subsequent clause of the same statute.
quent clause of the same statute. There are assumed to be cases which will baffle all attempts
at reconciling the repugnant parts. For such the doctrine is laid down that what is last in the
order of the words shall nullify the irreconcilable matters before.
Other authorities holding that when two provisions are irreconcilable the last one controls,
as being the later expression of the legislative will, are Ex Parte Hewlett, 22 Nev. 336;
Westport v. Jackson, 69 Mo. App. 153; Ryan v. State, 5 Neb. 276; Howard v. Railroad Co.,
86 Me. 387, 29 Atl. 1101; In re Yick Wo, 68 Cal. 304, 9 Pac. 139, 58 Am. Rep. 12 (citing
other California cases); Sutherland on Statutory Construction, sec. 220.
At sections 349 and 350, Mr. Sutherland says: The penal law is intended to regulate the
conduct of people of all grades of intelligence within the scope of responsibility. It is
therefore essential to its justice and humanity that it be expressed in language which they can
easily comprehend; that it be held obligatory only in the sense in which all can and will
understand it. And this consideration presses with increasing weight according to the severity
of the penalty. Hence every provision affecting any element of a criminal offense involving
life or liberty is subject to the strictest interpretation; and every provision intended for the
benefit of the accused, for the same humane reason, receives the most favorable construction.
The rule that penal rules are to be construed strictly is perhaps not much less old than
construction itself. It is founded on the tenderness of the law for the rights of individuals; and
on the plain principle that the power of punishment is vested in the legislature, not in the
judicial department. It is the legislature, not the court, which is to define a crime and ordain
its punishment. * * *' A penal statute cannot be extended by implication or construction. It
cannot be made to embrace cases not within the letter, though within the reason and policy, of
the law. Although a case may be within the mischief intended to be remedied by a penal act,
that fact affords no sufficient reason for construing it so as to extend it to cases not within
the correct and ordinary meaning of its language."
construing it so as to extend it to cases not within the correct and ordinary meaning of its
language.
Regarding the rule that penal statutes must be liberally construed in favor of the accused,
and that it must appear that he committed acts which are clearly made an offense by the
statute, we said in the decision recently filed in this court in Ex Parte Davis, 33 Nev. 309: In
Ex Parte Deidesheimer, 14 Nev. 311, this court said: Penal laws generally prescribe what
shall or shall not be done, and then declare the consequences of a violation of either
requirement. They should be plainly written, so that every person may know with certainty
what acts or commissions constitute the crime. (Bish. on Stat. Crimes, 193; Beccaria on
Crimes, 22, 45; The Schooner Enterprise, 1 Paine 33, Fed. Cas. No. 4,499. * * *' And in
United States v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 37 (opinion by Chief Justice Marshall), the
court says: It has been said that, although penal laws are to be construed strictly, the intention
of the legislature must govern in their construction; that if a case be within the intention, it
must be considered within the letter, of the statute. The rule that penal laws are to be
construed strictly is perhaps not much less old than construction itself. It is founded on the
tenderness of the law for the rights of individuals, and on the plain principle that the power of
punishment is vested in the legislative, not in the judicial department. It is the legislature, not
the court, which is to define a crime and ordain its punishment. * * * The intention of the
legislature is to be collected from the words they employ. Where there is no ambiguity in the
words, there is no room for construction. The case must be a strong one, indeed, which would
justify a court in departing from the plain meaning of the words, especially in a penal act, in
search of an intention which the words themselves do not suggest. To determine that a case is
within the intention of a statute, its language must authorize us to say so.' See, also, Sedgwick
on Construction of Stat. and Const. Law, 279, et seq.; Smith's Commentaries, 746; Bish. on
Stat. Crimes, 192, et seq. (Ex Parte Rickey, 31 Nev. 102
Rickey, 31 Nev. 102; State v. Wheeler, 23 Nev. 152, and cases there cited.)
In Railroad Co. v. People, 67 Ill. 13, 16 Am. Rep. 599, it was said that a law applying a
harsh penalty will be subject to close criticism and a strict construction. (Randolph v. State, 9
Tex. 521.)
In Renfroe v. Colquitt, 74 Ga. 619, it was held that: When a statute may be construed so
as to give a penalty, and also so as to withhold the penalty, it will be given the latter
construction; and where a statute creates a new offense and provides a penalty, or gives a new
right and declares the remedy, the punishment or the remedy can be only that which the
statute prescribes.
It is urged that as the title of the act, in addition to making reference to the offense, states
that it is for the purpose of establishing a rule of evidence in connection therewith, section
1 is complete in itself, in that it makes certain acts an offense, and section 2 relates to matters
of evidence. This contention is correct in so far as it applies to that part of section 2 which
states that the failure, suspension or voluntary liquidation of any such bank or banking
corporation within thirty days from and after the receiving of a deposit therein shall be prima
facie evidence of knowledge on the part of such officer, director, cashier or manager that such
bank was insolvent and in failing circumstances at the time such deposit was received.
But we are unable to reach the same conclusion regarding the language in the fore part of
section 2, that if any officer, director, cashier or manager of any incorporated bank, having
authority to close any banking institution or to prevent the reception of deposits therein, shall
not exercise such authority and prevent the receipt of deposits therein when he knows such
bank is insolvent or in failing circumstances, he shall be deemed to have assented to the
reception of any deposits received therein. The construction contended for as applied to this
last language would give the word deemed therein a meaning similar to presumed. We
think the word "deemed" was used in section 2 in the sense of "adjudged."
think the word deemed was used in section 2 in the sense of adjudged. That the word has
this meaning when so used has been held in a number of cases, and it is apparent that our
legislature has used it to mean adjudged, in the sense of constituting a crime, instead of a
rule of evidence, more often than it has used adjudged to mean adjudged.
In Blaufus v. People, 69 N.Y. 107, 111, 25 Am. Rep. 148, it was said that deemed, as
used in legislative expression, is not materially different in meaning from adjudged (citing
Rich. Dict.).
In Cardinel v. Smith, 5 Fed. Cas. 47 (No. 2,395), the court said: Their counsel, apparently
conscious that the letter of this section was against them, sought to modify its effect, by
endeavoring to show that when it declares that a person who shall offer or expose for sale,
any of the articles named in schedule C, * * * shall be deemed the manufacturer thereof,' it
only creates a disputable presumption that such person is the manufacturer thereof,' which, in
this case, is overcome by the admitted fact that the plaintiffs are not the manufacturers, but
only the venders [vendors] of the articles. The word deemed' in this connection means
judged,' determined'; and when it is enacted that the vender [vendor] of an article shall for
any purpose be deemed the manufacturer thereof,' for such purpose he is to be absolutely
considered such manufacturer.
In Commonwealth v. Pratt, 132 Mass. 246, it was held that when by statute certain acts are
deemed to be a crime of a particular nature they are such crime. See, also, Leonard v. Grant
(C. C.) 5 Fed. 11, holding that deemed is the equivalent of considered or adjudged, and
Walton v. Gavin, 16 Q. B. 48.
In our general act (Stats. 1861, c. 28) relating to crimes and punishments the legislature
has provided at section 56 that every person who commits certain acts shall be deemed
guilty of arson in the first degree, at section 57 that every person who commits certain other
acts shall be deemed guilty of arson in the second degree, and that if the life of any person
is lost in consequence of the burning the offender "shall be deemed guilty of murder," and
in the next section that every person who commits certain other acts "shall be adjudge
guilty of arson in the second degree."
that if the life of any person is lost in consequence of the burning the offender shall be
deemed guilty of murder, and in the next section that every person who commits certain
other acts shall be adjudge guilty of arson in the second degree.
Some of the many other instances in which the word deemed has been used in the sense
of adjudged in that act are at section 34, wherein it is provided that, if any person shall
inflict a wound in a duel which causes the death of another, the offender shall be deemed
guilty of murder in the first degree; at section 59, where it is provided that every person
committing certain acts shall be deemed guilty of burglary; at section 61, which provides
that every person committing certain acts shall be deemed guilty of grand larceny; at
section 62, where it is provided that every person committing certain acts shall be deemed
guilty of petty larceny; at section 77, where it is provided that every person committing
certain acts shall be deemed guilty of forgery; at section 78, where it is provided that every
person committing certain acts shall be deemed guilty of counterfeiting; at section 90,
wherein it is provided that every person who does certain false swearing shall be deemed
guilty of perjury; at section 91, wherein it is provided that every person who by wilful and
corrupt perjury shall procure the conviction and execution of any innocent person shall be
deemed and adjudged guilty of murder; at section 127, wherein it is provided that a certain
act shall be deemed the commission of the crime of bigamy; and at section 136, wherein it
is provided that every person guilty of certain acts shall be deemed a swindler.
In an act entitled An act to more fully define the crime of larceny (Stats. 1883, c. 23) it is
provided in section 1 that every person doing certain acts shall be deemed guilty of grand
larceny, and in section 2 that every person doing certain acts shall be deemed guilty of petty
larceny.
In an act to prohibit the killing and branding of live stock {Stats.
stock (Stats. 1879, c. 104) it is provided that every person doing certain acts shall be deemed
guilty of felony.
It is also urged that under the indictment the petitioner may be held and tried as an
accessory before the fact under our statute, which makes accessories before the fact
principals. This might be true if the indictment alleged the reception of a deposit by the
petitioner, and evidence was at hand to show that, although he had not actually received the
deposit, he was accessory before the fact to the reception of the deposit. But this indictment
fails to allege facts constituting any offense by a principal, either in the reception of a deposit
or in the assent to the reception of a deposit, and the conclusion follows that, if the indictment
does not allege any facts which would constitute an offense by a principal, it does not state
sufficient facts as against an accessory before the fact so that he could be tried as a principal.
As the statute provides that an officer having power to close a bank or to prevent the
reception of deposits, who does not exercise such authority, shall be deemed guilty of
assenting to the reception of a deposit, if the authority to close the bank or to prevent the
reception of deposits, as designated by the legislature, is necessary to constitute the offense of
assenting to the reception of a deposit so that a principal may be guilty, this same authority
must be necessary to constitute the same offense in order to make an accessory before the fact
guilty. For if it be conceded that an accessory before the fact may be indicted, tried and
convicted as a principal, the necessary elements which constitute the offense are not less in
regard to him than the ones which apply to the principal, except as they relate to some act or
omission connected with the perpetration of the crime. Hence section 10 of the act relating to
crimes and punishments, which provides that an accessory is one who aids, abets, or assists,
or who, not being present, aiding, abetting, or assisting, has advised and encouraged the
perpetration of the crime, and that he who thus aids, abets or assists, advises or encourages,
shall be deemed and considered as principal and punished accordingly," does not apply, nor
make good, as against an accessory before the fact, an indictment which does not state
facts sufficient to constitute an offense against a principal.
and punished accordingly, does not apply, nor make good, as against an accessory before the
fact, an indictment which does not state facts sufficient to constitute an offense against a
principal. If it be said that one who advises, aids, or assists in the commission of a crime, so
as to make him an accessory before the fact, assents to its commission, he may properly be
prosecuted as such accessory under an indictment charging him with the commission of the
offense as a principal, or in case of a deposit with the reception, regardless of any provision of
the statute relating to the assent to the reception, of a deposit. (State v. Chapman, 6 Nev. 320;
State v. Laurie, 13 Nev. 386.)
In some of the states the receiving or assenting to the reception of deposits in a bank
knowing it to be insolvent has not been made criminal. In other states the reception of the
deposit only, and in others both the reception and assent to the deposit are made criminal,
under penalties varying from misdemeanor with fine in twice the amount of the deposit, or
other light punishment, to felonies with varying terms in the state prison. As pertains to
incorporated banks, our statute has penalized the reception of deposits by any person who
knows, or has good reason to know, that the bank is insolvent, and has also penalized the
assent to the reception of deposits by any officer, director, cashier, or manager having
authority to close the bank, or to prevent the reception of deposits, who does not prevent such
reception when he knows the bank is insolvent or in failing circumstances. As these officers
when they have this authority are made guilty when they fail to prevent the reception of
deposits knowing the bank is insolvent or in failing circumstances, evidently the legislature
did not intend to make them guilty of assenting to the reception of deposits when they do not
have this authority, unless they actually receive the deposit. Would to hold otherwise under
this statute be equivalent to holding that all the directors, whether three or fifteen, and all
officers of an incorporated bank, without its authority, who may become aware, or have
good reason to believe, that it is insolvent, may be convicted of assenting to the reception
of a nominal or other amount by some other person in their absence and without their
knowledge, and be imprisoned under sentences aggregating 100 or 200 years?
porated bank, without its authority, who may become aware, or have good reason to believe,
that it is insolvent, may be convicted of assenting to the reception of a nominal or other
amount by some other person in their absence and without their knowledge, and be
imprisoned under sentences aggregating 100 or 200 years?
If the specific provision in section 2 that officers having power to close the bank or
prevent the reception of deposits shall be deemed guilty of assenting to the reception of
deposits if they fail to exercise this authority, had been omitted from the statute, or could be
ignored, still there is nothing in the language of section 1, nor in the law, which makes an
officer of an incorporated bank criminally liable simply because he is such officer and knows
that the bank is insolvent, and without anything being done on his part deposits are being
received by some other officer or person for the bank.
Under the allegations of the indictment, which appears to have been carefully drawn, and
which allegations, we understand from the admissions by the prosecution, state the correct
facts, it does not appear that they constitute any offense known to the law. However, if the
state or the grand jury has any evidence which would bring the case under the terms of the
statute, or show that the defendant had authority to close the bank or prevent the reception of
deposits therein when he knew the bank was insolvent and in failing circumstances, or if they
have any evidence that he actually or personally received any deposit for the bank when he
knew it was insolvent and in failing circumstances, or that he was an accessory to such
reception under section 10 of the act covering crimes and punishments and the decisions of
this court concerning the same, a new indictment alleging the necessary facts may be found,
and, if so found, it will not be prejudiced or affected by the order in this proceeding.
The petitioner will stand discharged from the indictment.
____________
[No. 1914]
Ex Parte SMITH
Original Proceeding. Application by Bert L. Smith for a writ of habeas corpus for release
from commitment under an indictment. Petitioner discharged from indictment.
Per Curiam:
For the reason stated in the opinion this day filed in the matter of the application of Oscar
J. Smith for a writ of habeas corpus, it is ordered that the petitioner, Bert L. Smith, indicted
as vice-president for assenting to the reception by the Eureka County Bank, a banking
corporation, of the same deposit for the assenting to which Oscar J. Smith was indicted as
president, stand discharged from the indictment.
____________
33 Nev. 490, 490 (1910) Ex Parte Griffin
[No. 1915]
Ex Parte GRIFFIN
Original Proceeding. Application by W. E. Griffin for a writ of habeas corpus for release
from commitment under an indictment. Petitioner discharged from indictment.
Per Curiam:
For the reason stated in the opinion this day filed in the matter of the application of Oscar
J. Smith for a writ of habeas corpus, it is ordered that the petitioner, W. E. Griffin, indicted
as vice-president for assenting to the reception by the Eureka County Bank, a banking
corporation, of the same deposit for the assenting to which Oscar J. Smith was indicted as
president, stand discharged from the indictment.
____________
33 Nev. 491, 491 (1910) Goldfield Mohawk Mining Co. v. Frances-Mohawk Mining & Leasing
Co.
[No. 1861]
GOLDFIELD MOHAWK MINING COMPANY (a Corporation), Respondent, v.
FRANCES-MOHAWK MINING AND LEASING COMPANY (a Corporation),
Appellant.
1. New TrialInsufficiency of EvidenceDuty of Trial Judge.
Under the statute making insufficiency of the evidence to justify the verdict ground for a new trial, the
refusal of the trial judge to pass on such ground in support of a motion for new trial is error.
2. Appeal and ErrorDisposition on Appeal.
Under Comp. Laws, 2513, empowering the supreme court to review on appeal an order granting or
refusing a new trial, and section 2515 providing that such court may reverse, affirm, or modify the
judgment or order appealed from, and may, if necessary, order a new trial, etc., the court on reversing an
order denying a new trial demanded for insufficiency of evidence to support the verdict may remand the
case, with directions to the trial court to consider and pass on such ground anew.
Action by the Goldfield Mohawk Mining Company, a corporation, against the
Frances-Mohawk Mining and Leasing Company, a corporation. Judgment for plaintiff, and
from an order overruling a motion for a new trial, defendant appeals. Order set aside and
case remanded, with instructions.
Powers & Marioneaux and Frank J. Hangs (Thompson, Morehouse & Thompson, of
counsel), for Appellant.
W. H. Bryant and Chester L. Lyman, for Respondent.
This action was commenced in the District Court of Nye County, Nevada, on the 15th day
of January, 1907, for the purpose of recovering two hundred thousand dollars ($200,000)
alleged damages for the violation of the terms of a written lease executed by the respondent,
Goldfield Mohawk Mining Company, to the appellant.
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Goldfield Mohawk Mining Company, to the appellant. A motion for a change of venue was
interposed and granted, removing the cause to Esmeralda County, Nevada, because the
plaintiff and defendant were doing business in that county, and the alleged cause of action
arose therein.
It appears from the testimony that the Mohawk No. 2 and Slim Jim Fraction mining
claims, located near the town of Goldfield, Nevada, were for some time prior to the 1st day of
September, 1905, owned by the Goldfield Mohawk Mining Company. Upon said date a tract
of said claims of some seven hundred (700) feet in length and three hundred and
seventy-seven (377) feet in width was leased to one G. H. Hayes, for a period of sixteen (16)
months, expiring at noon on the 1st day of January, 1907. Afterwards one M. J. Monnette
became a partner with Mr. Hayes, and thereafter certain other partners were taken in. The
lease being for a considerable tract of land, the ground was cut up into several smaller areas,
and among others a part of the ground two hundred (200) feet long and three hundred and
seventy-three (373) feet in width was assigned to D. McKenzie & Co., and afterwards by D.
McKenzie & Co. assigned to the appellant, Frances-Mohawk Mining and Leasing Company,
on or about the 10th day of May, 1906.
The entire tract proved to be very valuable; that portion known as the Hayes and Monette
[Monnette] lease yielding some six or seven million dollars in about four or five months. The
small block of the claim leased to the Frances-Mohawk Mining and Leasing Company also
became very valuable; it appearing in the testimony in this case that something over
$2,000,000 was taken out. The lease originally expired on the 1st day of January, 1907, but
on account of shut-downs caused by various labor troubles, it was extended to the 8th day of
January, expiring at noon upon that day. Although the action was originally commenced on
the 15th day of January, 1907, the case was not called until March 22, 1909, when, after a
trial by jury lasting until the 10th day of April, 1909, a verdict in the sum of seventy-five
thousand dollars ($75,000) and costs was rendered in favor of the respondent.
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costs was rendered in favor of the respondent. A motion for a new trial was regularly argued
and submitted to the court and denied, from which order overruling the motion for a new trial
the defendant appeals.
It is claimed by the respondent that in operating the lease above mentioned, the appellant
failed to comply with its terms in that he did not timber said property properly, nor did it
remove or cause to be removed therefrom the loose rock and rubbish, as provided in said
lease. That as a result of this violation of these terms of the lease, the respondent suffered
damages in the sum of two hundred thousand dollars ($200,000). The appellant, on its part,
claimed that it did comply with the terms and conditions of the lease; that said ground was
timbered in miner-like fashion and in accordance with the custom of the district, and that the
loose rock and rubbish were removed from the workings of said ground, as provided for in
the said lease. That the respondent was not damaged at all as a result of any failure on the part
of the appellant to carry out the terms of the said lease. The appellant claimed as a further
defense that the respondent, being fully aware of all the conditions of the said lease, did, on or
about the 1st day of January, 1907, approve of the work done and the condition of the
property, and that it was thereby estopped from afterwards claiming any damages on account
of any alleged violation of the terms of said lease. This in brief states the substance of the
controversy between the parties hereto. Each side had its own theory of the case, and upon
what the measure of damage, if any, should be based.
The defendant moved for a new trial in the lower court, and in support of its motion
therefor, among many assigned, alleged errors, interposed one of our statutory grounds for a
new trial, to wit: Insufficiency of the evidence to justify the verdict. The court, in refusing
to pass upon this ground for a new trial interposed by the appellant herein, among other
things said: I am not surprised that the defendant was dissatisfied with the verdict.
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dict. A verdict of this kind could hardly result otherwise than as a surprise, and defendant
naturally feels that justice has been outraged. I have had quite a long experience on the bench,
during which time I have seen many verdicts rendered that I regarded as an outrage upon
justice. I have seen many verdicts that I felt ought to be set aside in the interests of justice and
fairness. * * * It is the duty of the judge to preside at the trial; to see that a fair and impartial
trial is had; that all evidence, material and proper, should be submitted to the jury. The judge
should properly instruct them upon the law. When that was done, I always felt that the judge's
duty in relation to that matter was ended. * * * I could never bring my mind to see that it was
a just and proper exercise of judicial discretion for the trial court to set aside the verdict of a
jury, for the reason that, in the mind of the judge, the evidence did not justify the result. If I
could have seen it that way, there have been many verdicts in my experience that I should not
have hesitated to set aside, because I have felt outraged myself and felt that justice had been
outraged by such verdict. For the reason that I believe it would be contrary to the spirit and
letter of the jury system for a court to say that the jury had not properly weighed the evidence,
I have not done so. * * * With that view of the law, for the court to say that, while it was the
sole judge of the facts, if the jury did not decide the matter in accordance with the views of
the court, the verdict should be set aside, would be exercising a discretion dangerous to the
jury system. For that reason, I have never yet set aside a verdict of a jury on account of there
being a question as to the preponderance of the evidence.
One of the main errors assigned in this court by the appellant, is, whether or not the refusal
of the trial court to pass upon this particular ground in support of its motion for a new trial is
not such a deprivation of a substantial right of appellant as to amount to error.
In our opinion the trial judge misconceived his judicial duty in failing and refusing to
pass upon this vital ground of error assigned by appellant, at that particular stage of the
proceeding, and laboring under his misconception of the law, by his refusal and failure so
to consider this alleged error, deprived appellant of a substantial right to which it was
entitled.
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duty in failing and refusing to pass upon this vital ground of error assigned by appellant, at
that particular stage of the proceeding, and laboring under his misconception of the law, by
his refusal and failure so to consider this alleged error, deprived appellant of a substantial
right to which it was entitled. The learned trial judge, during the progress of the trial,
rightfully refused to express his opinion on the facts of the case to the jury, and in confining
his instructions to the law of the case, leaving the jury to express its verdict as to the facts;
but, on the motion for a new trial, the situation was changed, and, under our statutes which
provide as a ground for a new trial insufficiency of the evidence to support the verdict, it
became his judicial duty to pass upon the evidence and to determine whether or not the
evidence was sufficient to sustain the verdict.
It makes no difference in law what personal opinion the trial court may entertain as to the
propriety of setting aside a verdict of a jury, or the merits or faults of our jury system. The
legislature has provided what grounds may be interposed in support of a motion for a new
trial, and among them is the ground that the evidence is insufficient to sustain the verdict,
and it thereby becomes the plain judicial duty of every trial judge, irrespective of his personal
views, when said ground is interposed, to review and pass upon the evidence to the end that
he may properly rule on the motion.
Every litigant is entitled, on motion for a new trial, where this statutory ground for a new
trial is properly interposed, to have the benefit of the judgment of the trial court, before his
property or rights can be taken away from him, as to whether or not such a fair and impartial
trial has been had as is contemplated by our constitution and statutes, and whether or not the
evidence is sufficient to justify the verdict; and it becomes, without question, the duty of the
trial judge, who has heard the evidence and seen the witnesses on the stand during the trial,
on motion for a new trial, to either grant or refuse a new trial, after a due consideration of the
said ground assigned for anew trial.
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ground assigned for a new trial. It is made his duty under the law, upon motion for a new
trial, where this ground is assigned, to review the evidence, and if he is clearly satisfied in his
judgment that the evidence is insufficient to sustain the verdict to set it aside, and if sufficient
to refuse to disturb it, and in the discharge of his official duty under his oath of office he is
required to so act.
The Supreme Court of Tennessee, speaking through Mr. Justice Lurton, now a justice of
the United States Supreme Court, in the case of Tennessee C. & R. R. Co. v. Roddy, 85 Tenn.
490, 5 S. W. 286, said: If he [the judge] was not satisfied that under the facts and law the
plaintiff should have a verdict, it was his plain duty to set it aside and grant a new trial. The
doctrine is well settled in this court that if the circuit judge is of the opinion that a verdict is
against the weight of the evidence, or is contrary to the law as charged by himself, he should
grant a new trial. * * * Much of the importance and weight attached to jury trials proceeds
from the presumption that an intelligent and learned circuit judge, accustomed to weighing
evidence, has scrutinized the proof, looked into the faces of the witnesses and indorsed the
action of the jury. The integrity and value of jury trials will largely disappear if the circuit
judges shall endeavor to avoid the duty imposed upon them by law in this regard. If he is
dissatisfied with the verdict he ought to set it aside; and this court has held that where this
dissatisfaction appears in the record this court will do what he ought to have donegrant a
new trial. (England v. Burt, 4 Humph. 399; Jones v. Jennings, 10 Humph. 428; Nailing v.
Nailing, 2 Sneed, 631; Vaulx v. Herman, 8 Lea, 687.)
In the case of Nashville, C. & St. L. R. Co. v. Neely, 102 Tenn. 700, 53 S. W. 167, where
the court misconceived his judicial duty as to invading the province of a jury in setting aside
its verdict, because of an opinion of his own that such action was not within the province of a
judge, it was said: The court then overruled the motion for a new trial, stating that the
facts in the case were considerably mixed, but that it was a rule of his rarely to invade the
province of the jury in setting aside their verdict if there were any substantial facts to
support the same.
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new trial, stating that the facts in the case were considerably mixed, but that it was a rule of
his rarely to invade the province of the jury in setting aside their verdict if there were any
substantial facts to support the same. The concluding part of this recital discloses erroneous
action on the part of the court. It shows a misconception of the respective functions of the
court and jury in regard to the evidence and gives unwarranted weight to the verdict. It is
incumbent on the trial judge, in passing upon the motion for a new trial, to weigh the
evidence for himself and decide whether or not the verdict, when reduced to $2,000, was
warranted thereby, and it would not have been an invasion of the province of the jury' for
him to do so. It was his province to decide that question. The case had passed from the jury
and had reached that stage in which the judge must approve or disapprove the verdict; and in
discharging that exclusive and independent duty, he must unavoidably determine for himself,
after giving all due weight to the verdict of the jury, whether or not the evidence introduced
was sufficient to sustain that verdict.' His honor seems to have gone far enough in his
consideration of the evidence to conclude that there were some substantial facts to support'
the verdict, and, deeming that sufficient, he considered the evidence no further. That was a
misapplication of a familiar rule of long standing in the practice of this court, but wholly
inapplicable in nisi prius courts. Indeed, that rule, as here applied, is based upon the fact that
both the trial judge and the jury have carefully weighed the evidence, and that while doing so
they have had more favorable opportunity of ascertaining the truth than this court can have.
(Railroad Company v. Brown, 96 Tenn. 559, 35 S. W. 560; Illinois Cent. R. Co. v. Brown, 96
Tenn. 559, 35 S. W. 560; Tate v. Gray, 4 Sneed, 592; England v. Burt, 4 Humph. 400;
Nailing v. Nailing, 2 Sneed, 631; Vaulx v. Herman, 8 Lea, 683; Turner v. Turner, 85 Tenn.
389, 3 S. W. 121; R. R. Co. v. Roddy, 85 Tenn. 403, 5 S. W. 286; Railroad Company v. Lee,
95 Tenn. 389, 32 S. W. 249.)
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In the case of Illinois Cent. R. Co. v. Brown, 96 Tenn. 559, 562, 35 S. W. 560, 561, the
court said: So I carefully refrained from expressing to the jury any opinion as to whether or
not these facts did or did not make out a case of wilful neglect; and I do not intend to express
any opinion on the subject now, but will leave it to the supreme court. And he refused to
disturb the verdict, and the court says: In discharging that exclusive and indispensable duty,
he must unavoidably determine for himself, after giving all due weight to the verdict of the
jury, whether or not the evidence introduced was sufficient to sustain that verdict. That was
one of the questions presented in the motion for a new trial, and he had no power to pretermit
it and leave it' to this court for decision. And having been pretermitted by him this court is
without jurisdiction to decide it. To use apposite language of a very recent case, it was his
duty either to approve or disapprove the verdict, and then, in due course of proceeding, let the
aggrieved party bring the case into this court, if desired. It was his province and his right to
decide, in the first instance, whether or not judgment should be pronounced upon the verdict
rendered by the jury. This court cannot decide the question originally. It has no original
jurisdiction. It cannot pass upon the evidence in a case before the verdict of the jury has
received approval or disapproval; it does not indicate whether the trial judge though[t] the
verdict was right or wrong, on the evidence. (Railway Company v. Lee, 95 Tenn. 389, 32 S.
W. 249.)
The Supreme Court of Kansas, in the case of Cherokee and P. Coal and Mining Company
v. Stoop, 56 Kan. 426, 43 Pac. 766, said: A trial court will be reluctant to set aside a verdict,
where a doubtful question of fact exists, simply because its judgment inclines the other way;
but the mere fact that it was a conflict in testimony does not relieve the court from examining
the sufficiency of the evidence, nor make the verdict of the jury conclusive. While the case is
before the jury for their consideration the jury are the exclusive judges of all questions of fact;
but when the matter comes up before the court upon a motion for a new trial, it then
becomes the duty of the trial court to determine whether the verdict is erroneous.
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but when the matter comes up before the court upon a motion for a new trial, it then becomes
the duty of the trial court to determine whether the verdict is erroneous. * * * It has been the
unvarying decision of this court, to permit no verdict to stand unless both the jury and the
court trying the case together, within the rules prescribed, approve the same. Whenever a trial
court determines that the verdict is clearly against the weight or preponderance of the
evidence, it should not hesitate to set it aside and grant a new trial; and in arriving at this
determination the judge of the trial court must be controlled by his own judgment and not by
that of the jury. (Railroad Company v. Ryan, 49 Kan. 1, 30 Pac. 108; Williams v. Townsend,
15 Kan. 563; Railway v. Diehl, 33 Kan. 422, 6 Pac. 566; Railway Company v. Kunkel, 17
Kan. 172.)
The Supreme Court of California, in the case of People v. Knutte, 111 Cal. 453, 44 Pac.
166, said: An equal opportunity with the jury to observe the manner of the witnesses, the
character of their testimony, and to judge their credibility, and to discover their motives. He,
too, ought to be satisfied that the evidence as a whole was sufficient to sustain the verdict. If
he was not, it was not only the proper exercise of a legal discretion, but his duty to grant a
new trial. (People v. Baker, 39 Cal. 686; People v. Ashnauer, 47 Cal. 98; People v. Hotz, 73
Cal. 241, 14 Pac. 856.)
In the case of People v. Chew Wing Gow, 120 Cal. 298, 52 Pac. 657, the Supreme Court of
California said: It is made his [the trial judge's] duty to grant a new trial, if in his opinion the
verdict is against the evidence. This is one of the most important duties which the trial judge
has to perform, and, since no efficient review of his action can be had, it is peculiarly
incumbent upon the judge to weigh the evidence with care, and conscientiously grant a new
trial when in his opinion the interests of justice require it.
In the case of Kramm v. Stockton Electric R. Co., 10 Cal. App. 271, 101 Pac. 914, the
court, quoting from the case of Green v. Soule, 145 Cal.
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of Green v. Soule, 145 Cal. 102, 78 Pac. 337, said: There is a clear and obvious distinction
between the duty of a trial court and the duty of an appellate court with respect to the decision
of such questions. The trial court cannot rest upon a conflict in the evidence, but must weigh
and consider the evidence for both parties, and determine for itself the just conclusion to be
drawn from it. If the judge is not satisfied with the verdict, and is convinced that it is clearly
against the weight of the evidence, it is his duty to set it aside, even though there may have
been some conflict in the testimony. * * * But in considering the question upon the motion he
must act upon his own judgment as to the effect of the evidence. The parties are entitled to
the judgment of the jury in reaching a verdict, in the first instance; but upon a motion for a
new trial they are equally entitled to the independent judgment of the judge as to whether
such verdict is supported by the evidence. It is clear therefore that, when the trial judge is
satisfied that a verdict is wrong, and opposed to the evidence, if he refuses to set it aside he
violates his oath of office. The judge of the trial court does not sit as a mere moderator to
record the will of the jury. He has other duties and functions to perform which he cannot
lawfully escape or evade. He must confine the evidence within the issues, and when a verdict
is returned unwarranted by the evidence he must set it aside and grant a new trial when asked
for. The judge before whom the case is tried in the first instance has the same opportunity as
the jury to form an opinion with respect to the weight to be given to each witness; and one of
the highest and most important functions of his office is the power to set aside a verdict
whenever in the exercise of a sound discretion he considers that the jury, from any cause
whatever, has returned an improper or unjust verdict. (Woods v. Richmond R. R. Co., 1 App.
D. C. 169.)
In the case of People v. Knutte, 111 Cal. 453, 44 Pac. 166, the court said: While it is the
exclusive province of the jury to find the facts, it is nevertheless one of the most important
requirements of the trial judge to see to it that this function of the jury is intelligently and
justly exercised in this respect.
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important requirements of the trial judge to see to it that this function of the jury is
intelligently and justly exercised in this respect. While he cannot competently interfere with
or control the jury in passing upon the evidence, he nevertheless exercises a very salutary,
supervisory power over their verdict. In the exercise of that power he should always satisfy
himself that the evidence as a whole is sufficient to sustain the verdict; and if, in his sound
judgment, it does not, he should unhesitatingly say so and set the verdict aside.
In the case of Atchison, T. & S. F. R. Co. v. Consolidated Cattle Co., 59 Kan. 111, 113, 52
Pac. 71, 72, the trial court refused to hear argument of defendant upon the motion for a new
trial. The supreme court says: The parties to a cause pending in a court have an absolute
right to be heard, not only at the trial of the issue of fact, but also on motions addressed to the
court involving the merits of the controversy. While this exact question has perhaps never
been presented to this court, the principle is declared in many cases. No court is ever
warranted in assuming that it fully understands the merits of the cause until it has heard the
parties to it. It is always permissible to limit arguments of counsel to such a reasonable time
as may be necessary for the presentation of the matter under consideration. * * * It was
incumbent on the trial court to review the whole case, and to pass his judgment on the justice
of the verdict. * * * On motion for a new trial the attention of the court is for the first time
challenged to the question of fact in the case. It is, at the same time, challenged to all matters
involved in its final determination. We cannot give any sanction to the denial to a party of all
opportunity to be heard on a matter of such importance. And the court, after further
considering the matter, ordered a new trial. (Douglass v. Hill, 29 Kan. 527; State v. Bridges,
29 Kan. 138; Railroad Company v. Ryan, 49 Kan. 1, 30 Pac. 108; Larabee v. Hall, 50 Kan.
311, 31 Pac. 1062.)
Justice Brewer, while a justice of the Supreme Court of Kansas, and who afterwards
became one of the most able of our United States Supreme Court Justices, very clearly
laid down the rule upon the point under consideration, in the case of Railroad Company v.
Kunkel, 17 Kan.
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of Kansas, and who afterwards became one of the most able of our United States Supreme
Court Justices, very clearly laid down the rule upon the point under consideration, in the case
of Railroad Company v. Kunkel, 17 Kan. 172, as follows: The one [the trial judge] has the
same opportunity as the jury for forming a just estimate of the credence to be placed in the
various witnesses, and if it appears to him that the jury have found against the weight of the
evidence, it is his imperative duty to set the verdict aside. We do not mean that he is to
substitute his own judgment in all cases for the judgment of the jury, for it is their province to
settle questions of fact; and when the evidence is nearly balanced or is such that different
minds would naturally and fairly come to different conclusions thereon, he has no right to
disturb the findings of the jury, although his own judgment might incline him the other way.
In other words, the finding of the jury is to be upheld by him as against any mere doubts of its
correctness. But when his judgment tells him that it is wrong, that, whether from mistake, or
prejudice, or other cause, the jury have erred, and found against the fair preponderance of the
evidence, then no duty is more imperative than that of setting aside the verdict, and
remanding the question to another jury. (Larsen v. Navigation Co., 19 Or. 240, 23 Pac. 974;
State v. Billings, 81 Iowa, 99, 46 N. W. 862; City of Tacoma v. Tacoma Light and Water Co.,
16 Wash. 288, 47 Pac. 738; Hawkins v. Reichert, 28 Cal. 534; Dickey v. Davis, 39 Cal. 565;
Bennett v. Hobro, 72 Cal. 178, 13 Pac. 473; Reid v. Young, 7 App. Div. 400, 39 N. Y. Supp.
899; Bank v. Wood, 124 Mo. 72, 27 S. W. 554; Colvin v. Northern Pac. Ry. Co., 42 Wash. 5,
84 Pac. 616; Ruppel v. United Railroads of S. F., 1 Cal. App. 666, 82 Pac.1073; Shulze v.
Shea, 37 Colo. 337, 86 Pac. 117; Crowley v. Shepard, 38 Colo. 345, 88 Pac. 177; Wendling
Lumber Co. v. Glenwood Lumber Co., 153 Cal. 411, 95 Pac. 1029; Gilbreath v. Gilbreath, 42
Colo. 5, 94 Pac. 23; Houghton v. Loma Prieta Lumber Co., 152 Cal. 574, 93 Pac. 377;
Condee v. Gyger et al., 126 Cal.
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126 Cal. 546, 59 Pac. 26; Bjorman v. Fort Bragg Redwood Co., 92 Cal. 500, 28 Pac. 591;
Rhode v. Steinmetz, 25 Colo. 308, 55 Pac. 814; Mitchell v. Reed et al., 16 Colo. 109, 26 Pac.
342; Kramm v. Stockton Electric Co., 10 Cal. App. 271, 101 Pac. 914; Weisser v. Southern
Pac. Co., 148 Cal. 426, 83 Pac. 439; Harrington v. Butte & B. Min. Co., 27 Mont. 1, 69 Pac.
102; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407; In re Carriger's Estate, 104 Cal. 81, 37 Pac.
785; Warner v. F. Thomas P. D. & C. Works, 105 Cal. 409, 38 Pac. 960; A. T. & S. F. R. Co.
v. Consolidated Cattle Co., 59 Kan. 111, 52 Pac. 71; People v. Chew Wing Gow, 120 Cal.
298, 52 Pac. 657; Sullivan et al. v. Board of Commissioners, 5 Kan. App. 880, 47 Pac. 165;
Clifford v. Railroad Co., 12 Colo. 125, 20 Pac. 335; Garwood v. Corbett, 38 Mont. 364, 99
Pac. 958; Angus v. Wamba, 50 Wash. 353, 97 Pac. 246; Sherman v. Mitchell, 46 Cal. 576;
State v. Billings, 81 Iowa, 99, 46 N. W. 862; Turner v. Turner, 85 Tenn. 387, 3 S. W. 121;
Serles v. Serles, 35 Or. 289, 57 Pac. 634; Nashville, C. & St. L. R. Co. v. Neely, 102 Tenn.
700, 52 S. W. 167.)
In the light of these authorities, and others which could be added did we deem it necessary,
it is evident that the trial judge in the present case, misconceiving his judicial duty, fell into
grave error in failing and refusing to pass upon this ground assigned by the defendant for a
new trial.
Believing as we do that error was committed by the trial court, in failing and refusing to
pass upon the ground assigned as error, we come now to a consideration of the motion of
respondent in this case, who, during the argument in this court asked permission of the court,
in the event we found the trial court to have committed error by reason of the error above
committed, that they be permitted to file a motion to remand the case for further action by the
trial court upon this point without trying the case anew, which privilege was accorded them,
subject to the objection of the appellant. Accordingly a motion was regularly filed by Bryant
and Lyman, attorneys for the respondent herein, the essence of which is as follows: "That the
order denying the motion for a new trial be set aside, and the case be remanded to the
court below, with instructions to hear and determine the motion for a new trial anew and
decide the same upon its merits as the court may be advised in the premises."
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as follows: That the order denying the motion for a new trial be set aside, and the case be
remanded to the court below, with instructions to hear and determine the motion for a new
trial anew and decide the same upon its merits as the court may be advised in the premises.
The procedure thus invoked is a novel procedure, which this court for the first time is
called upon to consider, and while it has been the custom of this court, where it found error to
have been committed, in most cases to remand the same for new trials, yet, upon a
consideration of the whole situation in this case, we believe that justice demands, and it is the
better procedure to adopt and follow in the present case, to so set aside and modify the
judgment as to grant the motion of respondent. While it is true that this procedure has never
been adopted in this court, yet such authority is conferred on us by the constitution and
statutes (Comp. Law, 2513, 2515), and has been adopted in many courts and by authorities
which relieve us of all doubt as to the legal right and propriety of setting aside the order and
sending the case back for a ruling upon this point.
In Felton v. Spiro, 78 Fed. 576, 24 C. C. A. 321, in an able opinion rendered by William
H. Taft, at that time a justice of the Circuit Court of Appeals for the United States, Sixth
Circuit, and at the present time President of the United States, and which opinion was
concurred in by Justice Lurton, now of the Supreme Court of the United States, in passing
upon a point practically the same as the one involved in the present case, said: The
defendant receiver, therefore, is entitled to have the court below weigh all the evidence, and
exercise its discretion to say whether or not, in its opinion, the verdict was so opposed to the
weight of the evidence that a new trial should be granted, and the judgment of the circuit
court must be reversed for this purpose. This reversal does not set aside the verdict. It only
remands the cause for further proceedings from the point where the error was committed. We
found no error in the action of the court upon the trial and before verdict, and hence we shall
not disturb it, but shall leave it to the trial court, upon consideration of the weight of the
evidence, to grant the motion for a new trial, or not, as in its discretion it may deem
proper.
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disturb it, but shall leave it to the trial court, upon consideration of the weight of the evidence,
to grant the motion for a new trial, or not, as in its discretion it may deem proper. That the
supreme court would have taken a similar course in the case of Mattox v. U. S., 146 U. S.
140, 13 Sup. Ct. 50, 36 L. Ed. 917, already cited, had it not been that there were also errors on
the trial requiring a new trial, may be seen from the language of the chief justice in delivering
the opinion of the court, where, in summing up the result of the action of the court in refusing
to consider affidavits on motion for a new trial, he says (page 151, 146 U. S. and page 53, 13
Sup. Ct.; 36 L. Ed. 917): We should, therefore, be compelled to reverse the judgment
because the affidavits were not received and considered by the court; but another ground
exists upon which we must not only do this, but direct a new trial to be granted.' See, also,
Elliott, App. Proc. 580. The judgment of the circuit court is reversed, with instructions to the
court below to consider and pass upon the motion for new trial in so far as it is based on the
ground that the verdict was against the weight of the evidence. The costs of the writ of error
will be taxed to the defendant in error. The costs of the circuit court will abide the event.
The Supreme Court of Oregon, in the case of Serles v. Serles, 35 Or. 289, 57 Pac. 634,
said: The defendants were entitled to have their motion for a new trial passed upon in
pursuance of correct principles of law, and, the trial court having failed in this, the cause will
be remanded, with directions to determine the motion under the rules herein announced. The
cumulative character of the newly discovered evidence renders defendants' position upon the
first ground untenable; and, as it pertains to the second, viz, that the damages assessed are
excessive, that was a matter within the discretion of the trial court. By anything we have said
in this opinion it is not intended to indicate in any manner our impressions touching the
weight of the evidence submitted to the jury, and the court below, having seen the witnesses
and observed their manner, must act entirely upon its own judgment in passing upon the
motion."
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manner, must act entirely upon its own judgment in passing upon the motion.
In an opinion delivered by Justice Field, while a justice of the Supreme Court of the
United States, in Re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149, although a
criminal case, the procedure we believe should be adopted in the present case was sustained
substantially by that high tribunal, speaking through him, wherein it was said: Much
complaint is made that persons are often discharged from arrest and imprisonment when their
conviction, upon which such imprisonment was ordered, is perfectly correct; the excess of
jurisdiction on the part of the court being in enlarging the punishment or in enforcing it in a
different mode or place than that provided by law. But in such case there need not be any
failure of justice, for where the conviction is correct and the error or excess of jurisdiction has
been as stated, there does not seem to be any good reason why jurisdiction of the prisoner
should not be reassumed by the court that imposed the sentence in order that its defect may be
corrected. The judges of all courts of record are magistrates and their object should be not to
turn loose upon society persons who have been justly convicted of criminal offenses, but,
where the punishment imposed in the mode, extent, or place of its execution, has exceeded
the law, to have it corrected by calling the attention of the court to such excess. We do not
perceive any departure from principle or any denial of the petitioner's right in adopting such a
course. He complains of the unlawfulness of his place of imprisonment. He is only entitled to
relief from that unlawful feature, and that he would obtain if opportunity be given to that
court for correction in that particular. It is true that where there are also errors on the trial of
the case affecting the judgment, not trenching upon its jurisdiction, the mere remanding the
prisoner to the original court that imposed the sentence, to correct the judgment in those
particulars for which the writ is issued, would not answer, for his relief would only come
upon a new trial; and his remedy for such errors must be sought by appeal or writ or error.
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such errors must be sought by appeal or writ or error. But in a vast majority of cases the
extent and mode and place of punishment may be corrected by the original court without a
new trial, and the party punished as he should be, whilst relieved from any excess committed
by the court of which he complains. In such case the original court would only set aside what
it had no authority to do and substitute directions required by the law to be done upon the
conviction of the offender.
The Supreme Court of North Carolina, in the case of Marsh v. Griffin, 123 N. C. 660, 31
S. E. 840, said: In the case at bar there is no suggestion of any intentional abuse on the part
of his honor, but it clearly appears that, in addition to his failure to find certain facts, he was
inadvertent to other material facts. How this inadvertence arose does not appear from the
record, but it has been suggested that certain papers were not before him. Whatever its cause,
its existence is apparent. He states in his findings of fact that the action is an ejectment suit,'
and bases his decision partially upon the fact that the defendant gave no bond. As the
pleadings show none of the requisites of an action in ejectment, the defendant was not
required to give bond, and therefore the action of his honor was clearly based upon a
misapprehension of fact and law. The case must be remanded, as was done in Warren v.
Harvey, supra (92 N. C. 137), in order that the application may be reheard and determined in
the legal discretion of the court. (Sommer v. Sommer, 87 App. Div. 434, 84 N. Y. Supp. 444;
In re Howard, 59 Vt. 594, 10 Atl. 716; Rosenthal v. Board of Education, 239 Ill. 29, 87 N. E.
878; Ohio Coal Company v. Scott, 241 Ill. 448, 89 N. E. 665; Utah Association v. Home Fire
Ins. Co. (Utah), 102 Pac. 631; Rankin v. Rankin, 224 Pa. 514, 73 Atl. 920; Appeal and Error,
vol. 3, Cent. Dig. 4614; Field v. Winheim, 123 Ill. App. 227; Sutherlin v. Bloomer, 50 Or.
398, 93 Pac. 135; Fishburn v. Londershausen, 50 Or. 363, 92 Pac. 1060, 14 L. R. A. (N. S.)
1224; Salstrom v. Orleans Co., 153 Cal. 551, 96 Pac. 292; Northeastern Coal Co. v.
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Northeastern Coal Co. v. Tyrrell, 133 Ill. App. 472; Bell v. Old, 88 Ark. 99, 113 S. W. 1023;
Duffy v. Wilson, 44 Colo. 340, 98 Pac. 826; Boothe v. Farmers' National Bank, 53 Or. 576,
98 Pac. 509; Kossuth State Bank v. Richardson, 141 Iowa, 738, 118 N. W. 906; Griswold v.
Szwanek, 82 Neb. 761, 118 N. W. 1073, 21 L. R. A. (N. S.) 222; Louisville R. Co. v. Holland,
132 Ga. 173, 63 S. E. 898.)
Being of the opinion that the trial court erred, under his erroneous conception of the law,
in failing and refusing to pass upon the motion for a new trial, in so far as the ground
interposed by defendant of insufficiency of the evidence to justify the verdict, because,
according to his personal view entertained, he did not deem it his privilege or duty to consider
this matter for the reason it had been passed upon by a jury, believing that justice demands
that the lower court should pass upon this motion for a new trial, upon this point, as it should
have done in the first instance, it is hereby ordered that the order of the district court denying
the motion for a new trial be, and the same is hereby, set aside, with instructions to the court
below to consider and pass upon the ground for a new trial interposed by defendant, of the
insufficiency of the evidence to justify the verdict, for which purpose the case is herewith
remanded.
It is so ordered.
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33 Nev. 509, 509 (1910) State v. Vertrees
[No. 1878]
THE STATE OF NEVADA, Respondent, v. JESSE C.
VERTREES, Appellant.
1. Criminal LawEvidenceOther OffensesActs Showing Intent.
In a prosecution for maliciously threatening injury to the person with intent to extort money, evidence
of similar offenses committed about the same time are admissible to show intent.
2. Criminal LawEvidenceActs and Declarations of Conspirators and CodefendantsConspiracy.
Where a man and wife were jointly tried for threatening to commit personal injury with intent to
extort money, and the evidence tends to show that the wife was an accessory before the fact, acts and
declarations made by her in the consummation of the unlawful act are admissible against the husband.
3. Criminal LawAppeal and ErrorRecordMatters to be ShownNecessity.
Where the bill of exceptions does not contain in full the motion of the defendant to strike out certain
remarks of the prosecuting attorney, nor the ruling of the court nor the evidence in the case, the refusal of
the motion cannot be considered as reversible error.
Jesse C. Vertrees was convicted of maliciously threatening an injury with intent to extort
money, and he appeals. Affirmed.
T. L. Foley, for Appellant.
R. C. Stoddard, Attorney-General, for Respondent.
Per Curiam:
The defendant was jointly indicted with Annie May Vertrees, his wife, for the crime of
maliciously threatening an injury to the person of one Charles Dahlstrom with intent thereby
to extort the sum of $50 from the said Dahlstrom. The appellant was granted a separate trial,
was convicted of the crime charged, and sentenced to be confined in the county jail of
Esmeralda County for the term of one year to pay a fine of $500.
the term of one year to pay a fine of $500. From the judgment of conviction and from an
order denying his motion for a new trial, the defendant has appealed.
Error is assigned in the admission of certain testimony tending to establish other similar
offenses committed about the same time as the offense charged in the indictment. In this
character of cases where intent is the gist of the action, evidence of similar offenses is
admissible for the purpose of establishing criminal intent, and the ruling of the court in this
respect was not error. (Rice on Evidence, vol. 3, sec. 155, p. 216; Crum v. State, 148 Ind.
401, 47 N. E. 833; People v. Cook, 148 Cal. 334, 83 Pac. 43; State v. McMahon, 17 Nev.
365; State v. Roberts, 28 Nev. 374.)
Error is assigned in admitting in evidence the testimony of a witness relative to the
conduct and statements of the said Annie May Vertrees. It was the theory of the state, and the
evidence tended to establish the fact, that the said Annie May Vertrees was an accessory
before the fact, and upon this theory her acts and declarations in the consummation of the
unlawful design were competent to go to the jury. (State v. Ward, 19 Nev. 308.)
Error is assigned in the overruling of the motion of defendant's counsel to strike out certain
remarks made by the assistant district attorney in his closing argument to the jury and to
admonish the jury to disregard such statement. The bill of exceptions does not contain in full
the motion of counsel for defendant or the ruling of the court, nor does it contain in full all of
the evidence of the case. In the absence of these facts we cannot state that the remarks were
so prejudicial as to constitute reversible error.
We have had occasion frequently to consider alleged improper remarks of prosecuting
attorneys, and have had occasion to reverse cases for conduct upon the part of such
prosecuting officers prejudicial to the rights of the defendant.
Counsel for the state owe a duty to be just and fair to the defendant, and when in their zeal
they so overstep the bounds of propriety as to make it appear that the defendant's case
has been prejudiced by their actions, a reversal must follow.
the bounds of propriety as to make it appear that the defendant's case has been prejudiced by
their actions, a reversal must follow. (State v. Rodriguez, 31 Nev. 342.)
Counsel assigns error in the giving of a number of instructions by the court of its own
motion. These instructions do not appear to have been excepted to and hence are not before
us for consideration.
No reversible error appearing, the judgment is affirmed.
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33 Nev. 511, 511 (1910) State v. Mangana
[No. 1880]
THE STATE OF NEVADA, Respondent, v.
ASCENSION MANGANA, Appellant.
1. HomicideMurder in the First DegreeStatutes.
Section 17 of the crimes and punishments act (Comp. Laws, 4672), making all murder by poison,
lying in wait, or torture, or any other kind of wilful, deliberate, and premeditated killing, or committed in
the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, murder in the first degree,
does not create separate statutory homicides, but the killing of a human being in either one of the methods
described is murder in the first degree, and a felony and a homicide committed in perpetrating or
attempting to perpetrate a felony constitute together the one crime of murder in the first degree.
2. HomicideIndictmentMurder in the First Degree.
Under section 17 of the crimes and punishments act (Comp. Laws, 4672), making all murder by
poison, lying in wait, or torture, or any other kind of wilful, deliberate and premeditated killing, or that
committed in the perpetration or attempt to perpetrate any robbery or other enumerated felony, murder in
the first degree, and under an indictment charging a killing with malice aforethought, accused may be
convicted of either wilful, deliberate, and premeditated killing, or of a killing committed in the
perpetration of a robbery, whether wilful, deliberate, and premeditated or not; but if the indictment
should allege that a killing was committed in the perpetration of a robbery, and the evidence should
indicate that the killing was premeditated, but not in the perpetration of robbery, the variance would be
fatal.
3. HomicideMurder in the First DegreeEvidenceSufficiency.
Evidence held to justify a conviction of murder in the first degree either on the ground that the killing
was done wilfully, deliberately, and premeditatedly, or on the ground that it was committed in the
perpetration of a robbery.
4. HomicideHomicide in Commission of Other OffensePresumptions.
A killing committed in the perpetration of a robbery is presumed to have been wilful, deliberate, and
premeditated.
5. HomicideIndictmentSufficiency.
An indictment for murder committed in the perpetration of a robbery may be charged in the same
manner as ordinary murders are charged, and it need not be alleged that the murder was committed in the
perpetration of a robbery in order to admit testimony showing that a robbery was committed in addition
to the killing.
6. Criminal LawTrialInstructionsAssumption of Fact.
Where accused by his own testimony admitted that he fled from the scene of the murder, and his
counsel, in his opening statement, admitted the same fact, it was not improper for the court in its
instructions to assume that there was evidence of flight.
7. Criminal LawHarmless ErrorErroneous Admission of Evidence.
Where accused, on trial for murder perpetrated in the commission of a robbery, admitted that he was
in possession of a watch of decedent, and sought to excuse his possession, the error, if any, in admitting
evidence as to the number of the watch of decedent, was harmless.
8. Criminal LawPartiesLiability.
No distinction exists between an accessory before the fact and a principal, or between principals in
the first and second degree in cases of felony, and all persons concerned in the commission of a felony,
whether they deliberately commit the offense or merely aid and abet in its commission, though not
present, are properly indicted, tried, and punished as principals.
9. Criminal LawAppealInstructionsReview.
The action of the court in failing to charge on matters will not be reviewed on appeal, where it does
not appear that instructions were requested or that any exception was taken in regard thereto.
10. Criminal LawAppealEvidenceReview.
Under section 421 of criminal practice act (Comp. Laws, 3995), authorizing exceptions to the
admission or rejection of testimony, the particular ground of an objection or exception to the admission
of evidence must be stated in order to make the ruling reviewable on appeal.
County; Mark R. Averill, Judge.
Ascension Mangana was convicted of murder in the first degree, and he appeals.
Affirmed.
Statement of Facts
The defendant was tried under an indictment, the charging part of which follows: The
said Ascension Mangana, the defendant above named, at Leeland, in the county of Nye, State
of Nevada, on or about the 15th day of June, A. D. 1909, and before the finding of this
indictment, without authority of law, and with malice aforethought, then and there killed one
Byron Nelson, a human being, by then and there stabbing the said Byron Nelson with a sharp
instrument, the character of which being unknown to the said grand jury. The jury brought in
a verdict of murder in the first degree and fixed the punishment at death.
The following are the principal facts as claimed by the state:
Byron Nelson conducted a little saloon in Leeland, Nevada, and had a partner or associate
named Richard Stillwell, and Nelson was in the habit of cashing the checks of the different
employees of the railroad on paydays. On June 15, 1909, which was payday at Leeland for the
section hands on the railroad, Nelson did not cash them, for the reason that the station agent
or an employee of the railroad had in his possession sufficient money to cash the checks of
the other employees. The defendant and an associate of his, Ochoa, who worked with him as
a section hand on the railroad, were aware that Nelson on payday nights had sufficient money
in the till to cash a number of checks, and that on this payday he did not cash the checks, and
consequently had the money on hand, and had other money which was paid in that evening
upon previous accounts and for drinks. The defendant and Ochoa and others were in the
saloon drinking that night. The defendant and Ochoa remained with Nelson and Stillwell until
after the others had gone, and the saloon remained open later than usual and until about
midnight.
The next morning the body of Nelson was found near the bar and door, and that of
Stillwell ninety feet away from the saloon and partly under a wagon. The former had been
stabbed in the throat and chest five times, and the latter in the throat and chest and back
four times.
had been stabbed in the throat and chest five times, and the latter in the throat and chest and
back four times. There were numerous tracks overlapping each other and blood from the
wounds at the place where Stillwell's body lay, and no blood was found between there and the
saloon. His shoes were on his feet, unlaced, without his stockings. Only the top button of his
trousers was fastened, and his suspenders were hanging down loose. The till was found open,
and nothing remaining in it but a five-cent piece and a crumpled five-dollar bill. With the
exception of a cent piece upon the bar, no other money was found. Nelson's watch, which had
been fastened to his suspender by a chain, had been jerked off and was missing, and the watch
ring which had been fastened to the watch was found at his side.
One of the men working on the section testified that after he had gone to bed in the
bunkhouse that night he heard somebody say that they had got into trouble and would have to
leave. The next morning the defendant and his companion, Ochoa, were missing and not to be
found. Wages for half a month were due them and unpaid at the time they left. The tracks of
the two men were found, and were turned and made so as to elude pursuers. After two days
and a night the defendant was captured at Amargosa, a little after dark, in a store where he
had gone to purchase crackers, canned corn, and tomatoes. His own watch, knife, pistol, and a
few dollars in money were taken from him at the time he was arrested. The next morning he
threw away and made an effort to conceal the watch which had been taken from the body of
Nelson.
The defendant, a Mexican about 20 years of age at the time of the killing, and not speaking
English much, if any, relying upon his own testimony, claimed on the trial that he returned
from work upon the section after 5 o'clock on the evening of the 15th, received a check for
his wages for the previous month, cashed it at the railroad office, and after paying a grocery
bill had his dinner and was in the saloon in the company of some of the other section hands,
drinking; that later in the evening he left the saloon with another railroad laborer, Tomas
Gutierrez, and went with him to the bunkhouse; that they went to bed in their respective
rooms; that later in the evening he was awakened by Ochoa, who was in the saloon when
he left about 10 o'clock, and who at the time he awakened him had a knife and
commanded him to keep quiet and to get up and come with him; that he arose, put on his
clothes, and followed Ochoa; that he had a pistol in his possession when he went with
Ochoa.
other section hands, drinking; that later in the evening he left the saloon with another railroad
laborer, Tomas Gutierrez, and went with him to the bunkhouse; that they went to bed in their
respective rooms; that later in the evening he was awakened by Ochoa, who was in the saloon
when he left about 10 o'clock, and who at the time he awakened him had a knife and
commanded him to keep quiet and to get up and come with him; that he arose, put on his
clothes, and followed Ochoa; that he had a pistol in his possession when he went with Ochoa.
The attorney who had been appointed by the court to represent the defendant said to the
jury in his opening statement regarding what the defendant would testify to upon the stand:
That Ochoa dogged his footsteps. He will show that he went down the railroad with Ochoa;
that they fled across the desert until they came to another railroad; that during this time they
traveled the greater part of the first night and the greater part of the next day; that upon the
second evening he was tired and thirsty; that he sat down and drank part of a can of tomatoes
which Ochoa had brought along with him; that he thereupon lay down by the railroad and
slept; that in the morning he arose and Ochoa was gone; that when he lay down at night his
coat was alongside of him, and in the morning his coat was gone, and Ochoa's was there. He
says he got up and started on his journey, and he will tell you that this watch, which plays
such an important part in this case, was in the coat. He will tell you that he came into
Amargosa; that he was ignorant and thirsty and hungry and went into the store to purchase
something to eat, and while in the store he was arrested. He will tell you that he was searched;
that they found certain things on his person; that they took the purse and the knife and the
gun; that they didn't find the watch which has been introduced in the case. He will tell you
that this watch was on his person; that he didn't know what he was arrested for; but that when
he was arrested he suspected there was something in connection with the watch which had
caused the flight of Ochoa from the town of Leeland.
from the town of Leeland. Consider his position: A stranger, entirely ignorant of the laws and
customs of this country, found in the midst of hostile people with a piece of evidence on his
person which he must know came out of some trouble on the part of Ochoa. He will tell you
that the next morning he threw that watch away. He tried to get rid of that evidence upon his
person that the watchers found.
Upon the witness stand, Tomas Gutierrez contradicted the defendant's testimony that he
had left the saloon and gone with Gutierrez to the bunkhouse and then to bed on the night the
men were killed.
Also tending to contradict defendant's statement upon the trial that he had gone to the
bunkhouse with Gutierrez and had gone to bed and was not present or aware of the killing of
Nelson and Stillwell, there was testimony that the defendant said, a few days after his arrest
and before the preliminary hearing, that he and Tomas Gutierrez were present at the time
Nelson was stabbed; that Gutierrez knew all about it if he would tell; that Ochoa treated and
paid for the drinks, and, looking over his change, made complaint to Nelson that it was
wrong, and demanded more money; that Tomas asked Nelson to give him his right change;
that Nelson made an effort to use a gun; that Ochoa stabbed or tried to stab Nelson; that,
while Ochoa was trying to stab Nelson over the bar, defendant made a pass to stop him; that
Stillwell was behind the bar, and defendant could not hold Ochoa.
J. A. Sanders, for Appellant.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for the
State.
As error it is urged by counsel for defendant that the case was presented to the jury upon
two theories: First, that the appellant was guilty as charged in the indictment with killing the
deceased with malice aforethought; second, that the homicide was committed in the
perpetration of robbery; and that, as the court submitted the case upon both theories, it is
impossible for any one to say for what crime the appellant was convicted.
ment with killing the deceased with malice aforethought; second, that the homicide was
committed in the perpetration of robbery; and that, as the court submitted the case upon both
theories, it is impossible for any one to say for what crime the appellant was convicted.
It will be observed that the indictment follows closely the form provided by the statute.
Section 17 of the act relating to crimes and punishments provides that: All murder which
shall be perpetrated by means of poison, or lying in wait, torture, or by any other kind of
wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration,
or attempt to perpetuate any arson, rape, robbery, or burglary, shall be deemed murder of the
first degree. (Comp. Laws, 4672.)
Under this statute and the indictment as drawn, defendant could be convicted of either
wilful, deliberate, and premeditated killing, or of a killing committed in the perpetration of a
robbery, whether it was or was not wilful, deliberate, and premeditated. If the defendant in
advance planned or intended to kill in order to accomplish the robbery, and in pursuance of
that intent did kill the deceased, he was guilty of both a wilful, deliberate, and premeditated
killing, and of a killing in the perpetration of a robbery. These are not separate statutory
homicides, and if the jury believed, beyond a reasonable doubt, that the defendant was guilty
of killing in either one or both of these ways, they were justified in the rendition of the verdict
carrying the extreme penalty. If the indictment had unnecessarily charged that the killing was
committed in the perpetration of a robbery, and there had been no evidence indicating that it
was committed in such perpetration, proof that the killing was wilful, deliberate, and
premeditated would have been at variance with the allegation in the indictment, and an
instruction in such a case, based upon the two theories of wilful, deliberate, and premeditated
killing and of a killing in the perpetration of robbery, and directing the jury that they could
convict upon either, would have been erroneous.
The evidence in this case is stronger than that on which Dr. Crippen was recently
convicted and promptly hanged in London, and it is sufficient to justify the conclusion that
the killing was done wilfully, deliberately, and premeditatedly for the purpose of
accomplishing robbery. But if the evidence indicated that there was a robbery, and there was
no evidence indicating a previous intention to kill, nevertheless the killing committed in the
perpetration of the robbery would be presumed to have been wilful, deliberate, and
premeditated.
In State v. Lindsay, 19 Nev. 50, 3 Am. St. Rep. 776, Justice Hawley, speaking for this
court, said: Under this statute there are certain kinds of murder which carry with them
conclusive evidence of premeditation, viz, when the killing is premeditated by means of
poison, lying in wait, or torture; or when the homicide is committed in the perpetration, or
attempt to perpetrate, any of the felonies enumerated in this statute. In these cases the
question whether the killing was wilful, deliberate, and premeditated is answered by the
statute in the affirmative, and, if the prisoner is guilty of the offense charged, it is murder in
the first degree. (State v. Hymer, 15 Nev. 50, and authorities cited.)
It has often been held that a felony and a homicide committed in perpetrating or attempting
to perpetrate it, together, constitute the one crime of murder and may be charged as such and
in the same manner as ordinary murders are alleged, and that it is not necessary to charge in
the indictment that the murder was committed in the perpetration of another crime in order to
introduce testimony showing that a felony was committed in addition to it, and that, under an
indictment charging murder in the ordinary form and proof that it was committed in the
perpetration of a felony, malice, deliberation, and premeditation are implied. (State v. Meyers,
99 Mo. 107, 13 S. W. 516; People v. Giblin, 115 N. Y. 196, 21 N. E. 1062, 4 L. R. A. 757;
State v. Covington, 117 N. C. 834, 23 S. E. 337; People v. Sullivan, 173 N. Y. 122, 65 N. E.
989, 63 L. R. A. 353, 93 Am. St. Rep. 582; State v. Johnson, 72 Iowa, 393, 34 N. W. 177;
Wall v. State, 1S Tex.
Iowa, 393, 34 N. W. 177; Wall v. State, 18 Tex. 682, 70 Am. Dec. 302; Titus v. State, 49 N.
J. Law, 36, 7 Atl. 621.)
In State v. Foster, 136 Mo. 653, 38 S. W. 721, it was held that, while the charge that a
homicide was committed in an attempt to perpetrate a robbery is unnecessary, it will not
vitiate an indictment for murder in the first degree, and that in such a case the indictment may
be drawn in the common form.
In Reyes v. State, 10 Tex. App. 1, it was held that evidence tending to show that the killing
was done in the perpetration of arson, rape, robbery, or burglary is admissible as part of the
res gestae on the trial under an indictment charging murder with express malice aforethought.
In People v. Flanagan, 174 N. Y. 375, 66 N. E. 988, on an indictment for murder in the
first degree, a conviction for murder perpetrated while committing a felony, although not
specially pleaded, was sustained, and it was said that deliberation and premeditation need not
be found.
In State v. McGinnis, 158 Mo. 106, 59 S. W. 83, it was held that it is proper in a trial
under an indictment which only charges murder to instruct the jury that, if the homicide was
perpetuated in an attempt to commit robbery, the defendant was guilty of murder in the first
degree.
In State v. Weems, 96 Iowa, 428, 65 N. W. 587, the indictment was in the usual form and
without averments as to the murder having been committed in an attempt to perpetrate
robbery, and it was held proper to instruct the jury that, if two or more persons conspire to
commit robbery, and in pursuance of such conspiracy they or either of them kill a human
being, it is murder.
In State v. King, 24 Utah, 483, 68 Pac. 418, 91 Am. St. Rep. 808, the information for
murder contained the usual charge regarding malice and premeditation, but did not mention
robbery. It was held sufficient to charge murder in the first degree; and that evidence to show
that it was committed in the perpetration of a robbery was properly admissible; and that when
two or more persons associate together to rob another, and he is killed by one of them, the
act is that of each and all of the conspirators, and all are chargeable therewith.
associate together to rob another, and he is killed by one of them, the act is that of each and
all of the conspirators, and all are chargeable therewith. (State v. Schmidt, 136 Mo. 652, 38 S.
W. 719.)
It is claimed that some of the instructions given by the court were erroneous, and more
particularly the following: The jury are instructed that in this case evidence of flight has
been introduced. You are instructed that the flight of a person immediately after the
commission of the crime, or after a crime has been committed with which he is charged, is a
circumstance in establishing his guilt, not sufficient in itself to establish guilt, but a
circumstance which the jury may consider in determining his guilt or innocence. The weight
to which that circumstance is entitled is a matter for the jury to determine in connection with
all the evidence introduced in the case.
It is said that by the first sentence of this instruction the court charged the jury as to a
matter of fact. If it be conceded that this is true, and that the language used would have
constituted reversible error if there had been a conflict in the evidence as to whether the
defendant fled from the place of the crime, it is not improper for the court to assume and state
to the jury that there was evidence of flight, or that defendant had fled when by his own
testimony and by the opening statement of his counsel it was admitted that he had fled. It is
not error for the court to assume as true facts which are directly admitted by both parties in
the case. Under a similar principle of law, the admission of a paper relating to the number of
the watch, to which no objection or specification of error appears, was harmless, whether
properly proven under the oath of any one knowing it was the correct number, because the
effect of the defendant's testimony and the defense interposed amounted to an admission that
he was in the possession of the watch of the deceased, and defendant sought to excuse his
possession of the watch by his statement on the stand that Ochoa had taken his coat and had
left Ochoa's, in the pocket of which he found the watch.
had taken his coat and had left Ochoa's, in the pocket of which he found the watch.
Strong objection is also taken to the following instruction: The jury are instructed that an
accessory is he or she who stands by and aids, abets, or assists, or who, not being present,
aiding, abetting, or assisting, hath advised and encouraged the perpetration of the crime. He
or she who thus aids, abets, or assists, advises, or encourages, shall be deemed and considered
as principal, and punished accordingly. You are further instructed that no distinction shall
exist between an accessory before the fact, and the principal, or between principals in the first
and second degree, in cases of felony, and all persons concerned in the commission of a
felony, whether they directly commit the act constituting the offense, or aid and abet in its
commission, though not present, shall be indicted, tried, and punished as principals.
In the specification of error relating to this instruction it is said: No objection is made to
the form of the indictment, but under the proof in this case there is some evidence tending to
prove that the defendant, if guilty at all, committed the crime while in the perpetration of the
robbery of the deceased. This is a separate and distinct offense from the crime of murder in
the first degree. The instruction, therefore, is inconsistent and confusing and is prejudicial to
the defendant, in that it so conglomerates the two issues raisedthat of murder in the first
degree and that of murder in the perpetration of robberyit is impossible to determine from
the instruction its meaning. If the court intended to present this case to the jury on the two
theories suggested therein, in order for the verdict to stand and the instruction to be applicable
to the facts, it was necessary for the jury to believe from the evidence, beyond a reasonable
doubt, that both theories contained in this instruction were proven.
The first paragraph of this instruction is a copy of section 10 of the criminal practice act
(Comp. Laws, 3395), the other paragraph is a correct construction, as held by former
decisions of this court, and what we have already said regarding the theory of two
offenses is applicable.
3395), the other paragraph is a correct construction, as held by former decisions of this court,
and what we have already said regarding the theory of two offenses is applicable. (State v.
O'Keefe, 23 Nev. 127, 62 Am. St. Rep. 768; State v. Chapman, 6 Nev. 320; State v. Jones, 7
Nev. 408; State v. Hamilton, 13 Nev. 386.)
In the record on appeal it is specified that the court erred because it failed to instruct the
jury upon other matters; but it does not appear that any further instructions were drawn or
requested, or that any exception was taken in regard thereto. As no objection or exception
was taken in the district court to the testimony of one of the witnesses, now claimed to have
been erroneously admitted, that Ochoa was well liked and that defendant was quiet and not
well liked, although the witness never knew of his having any quarrels, we do not determine
whether it was proper evidence. If an objection had been made to its admission, the objection
might have been sustained. This court has often held that in both civil and criminal cases the
particular ground of an objection or exception to the admission of evidence must be stated.
(Crim. Prac. Act, sec. 421, and cases there cited; State v. Jones, 7 Nev. 408; State v. Murphy,
9 Nev. 394; Lightle v. Berning, 15 Nev. 389; Sharon v. Minnock, 6 Nev. 377; Schwartz v.
Stock, 26 Nev. 150; State v. Williams, 31 Nev. 377; Finnegan v. Ulmer, 31 Nev. 525;
McGurn v. McInnis, 24 Nev. 370; Wigm. Ev. 20.)
The judgment is affirmed, and the district court is directed to fix a time and make an order
for carrying its sentence into effect according to law.
Norcross, C. J., concurring:
I concur in the judgment and in the law of this case as stated in the opinion of Justice
Talbot. There are, however, some matters disclosed by the record which, in my judgment, are
worthy of further consideration although not affecting the ultimate result of this appeal.
The counsel appointed to present this case upon appeal, while urging a number of points
of alleged error, frankly admitted his doubt as to whether they could be considered upon
the record because of the lack of proper objections and exceptions.
while urging a number of points of alleged error, frankly admitted his doubt as to whether
they could be considered upon the record because of the lack of proper objections and
exceptions. It was argued that the attorney who defended the appellant at the trial was
inexperienced and failed to object to certain evidence, the admission of which was strongly
urged to be prejudicial to the defendant, and that in other particulars there was a failure to
incorporate in the record proper objections and exceptions. It was urged that this court should,
in view of the fact that this was a capital case, consider the points urged upon the argument
upon appeal whether or not exception had been taken in the lower court. Had there been an
objection interposed to certain of the evidence claimed to be most prejudicial to the
defendant, doubtless the trial court would have ruled properly upon it, and, if it was in fact
inadmissible, would have excluded it.
If the defendant had been the only one implicated in the killing of Nelson, it would be
much easier to reach a satisfactory conclusion as to the measure of the defendant's guilt. This
case was prosecuted upon the theory that the homicide was committed in carrying out the
crime of robbery. The state offered evidence tending to establish the fact that Nelson had in
his saloon or upon his person on the night of the killing a sum of money ranging from $150 to
$200. Whatever money Nelson had was taken, with the exception of a five-dollar bill and a
few cents. When the defendant was arrested, there was no money found upon him other than
the amount which could be accounted for as having been left from his monthly payment after
deducting the bills which he is shown to have paid.
The state offered in evidence in rebuttal statements made by the defendant to a countryman
of his shortly after the arrest.
In this statement the defendant said that Ochoa had treated; that the trouble which resulted
in the death of Nelson grew out of a dispute over the change that was paid to Nelson by
Ochoa; that Nelson started to use his gun, which was behind the bar; that Ochoa then
stabbed him; that Stillwell started to get out of the saloon; that Ochoa started after him;
that the defendant endeavored to stop Ochoa, but did not succeed in doing so.
gun, which was behind the bar; that Ochoa then stabbed him; that Stillwell started to get out
of the saloon; that Ochoa started after him; that the defendant endeavored to stop Ochoa, but
did not succeed in doing so. When the homicide was discovered, the following day, there was
found upon the bar a glass of beer nearly full and a bottle of beer partly full, and a bottle
containing a small quantity of Hostetter's Bitters. On the floor near the door and bar was a
heavy bar bottle containing some whisky and a glass lying near it. There was blood upon the
top of the bar and also the imprint of bloody fingers of both hands outlined very perfectly.
There was also some blood upon the standing board behind the bar and some broken bottles
at that point. So much of the statement which the defendant made shortly after his arrest, as to
the point at which the stabbing of Nelson occurred, appears to be borne out by physical facts.
A witness, who had charge of the property after the homicide, and who testified
concerning the boards which covered the top of the bar, which were offered in evidence,
testified that, for sanitary reasons, he had thoroughly scrubbed and cleaned the blood from off
the top of the bar. The witness in his efforts at sanitary precautions destroyed what might
have been one of the most valuable pieces of evidence in this case. Had the bloody
finger-prints been preserved, it could doubtless have been established with certainty whether
or not they were those of the defendant, and thus clearly have established whether or not the
defendant or Ochoa was the actual assassin of Nelson. In the statement which the defendant
made shortly following his arrest he accounted for his possession of the watch of Nelson by
stating that Ochoa had given him his (Ochoa's) coat, and the watch with it. If the coat which
the defendant had on at the time of his arrest, and which he said was Ochoa's, did not in fact
belong to the latter, that fact could easily have been disproved, and we may safely take it for
granted that that portion of his statement was true. The watch was of little value and was the
only thing found on the person of the defendant identified as belonging to Nelson.
found on the person of the defendant identified as belonging to Nelson. If Ochoa was the
more guilty of the two, he may have had a motive in giving the watch to the defendant.
The witness Felip Gutierriz, who was also employed as a section hand upon the railroad,
testified upon the part of the state that during the night of the killing he heard voices and
heard one person say: Let's get away from here. We have been in a fight in the saloon.
If it were true, as stated by the defendant after his arrest, that the killing of Nelson was the
result of a difficulty over the amount of change paid to Ochoa, then the larceny may have
been an afterthought and carried out to aid Ochoa and the defendant in getting out of the
country. This, of course, is speculative, and not to be considered as affecting the judgment.
The jury was the exclusive judge of the weight to be given to the testimony, and it was its
proper function to determine from all the circumstances established the guilt or innocence of
the defendant. Had Ochoa been captured, much that is now doubtful as to the extent in which
the defendant participated in the crime would possibly have been cleared up.
The testimony of the defendant given upon the trial doubtless did him more harm than
good. It was unreasonable in some respects, and in conflict with his statements regarding the
affair following his arrest. His statements made following his arrest, which were offered by
the state, in which he admitted his presence at the killing, were more reasonable and more
favorable to himself than his testimony given at the trial, which conflicted in material points
therewith.
While recognizing it was within the province of the jury, not only to determine the
credibility of the witnesses and the weight to be given to the evidence offered, but also, upon
finding the defendant guilty of murder in the first degree, to impose the death penalty instead
of life imprisonment, nevertheless, after a very careful examination of the record, I cannot
refrain from expressing the doubt that exists in my mind as to whether the ends of justice
will be subserved by carrying out the judgment of the court to the full letter.
expressing the doubt that exists in my mind as to whether the ends of justice will be
subserved by carrying out the judgment of the court to the full letter.
In view of the youth to the defendant, his ignorance of the English language, the
inexperience of his counsel, taken in connection with the fact that all the evidence was
circumstantial, and that there was another participant in the crime, who escaped and who may
have been the more guilty, I am impressed that the ends of justice would be subserved if the
sentence of the defendant was commuted to life imprisonment. If the board of pardons should
see fit to commute the sentence in this case, a result would be reached in consonance with
what I believe would be a more just determination of the case. If precedent were needed for
the position I have taken, the same may be found in the recent case of State v. Byrd (Mont.),
111 Pac. 407, 416.
____________
33 Nev. 527, 527 (1910) Jennett v. Stevens
[No. 1930]
EDWARD C. JENNETT, Respondent, v. THERON
STEVENS, Appellant.
1. MandamusTownsites.
A district judge who acts as trustee of a townsite, under Rev. St. U. S. 2387 (U. S. Comp. St. 1901, p.
1457), acts by virtue of his office as judge, and he is not an inferior officer to his associate judge of the
district, and such associate judge cannot by mandamus compel the judge acting as such trustee to convey
a lot to a purchaser offering to pay $4.50 therefor, while such trustee demands the right, under Comp.
Laws, 345, to charge the purchaser $9.50.
Mandamus by Edward C. Jennett against Theron Stevens, trustee of a townsite. From a
judgment for plaintiff, defendant appeals. Reversed and remanded.
S. L. Carpenter and Detch & Carney, for Appellant.
Francis McNulty, for Respondent.
This is an appeal from a judgment made and entered on the 27th day of August, 1910, in
the Seventh Judicial District Court of the State of Nevada, in and for the county of
Esmeralda, ordering the issuance of a peremptory writ of mandamus, commanding the said
appellant herein, Theron Stevens, as trustee of the townsite of Goldfield to issue to the said
Edward C. Jennett, respondent herein, a deed to certain lots in the townsite of Goldfield, upon
the payment therefore of the sum of $4.50, under and by virtue of the provision of section 7
of an act entitled An act prescribing the rules and regulations for the execution of the trust
arising under the act of Congress entitled An act for the relief of the inhabitants of cities and
towns upon the public lands,' approved March 2, 1867. (Comp. Laws, 345.)
The mandamus proceedings in the lower court were heard and determined before Peter
J.
heard and determined before Peter J. Somers, one of the judges of the said Seventh Judicial
District Court.
The said Seventh Judicial District Court has two judges (Stats. 1909, p. 187); the said
Peter J. Somers being one, and the said Theron Stevens, appellant herein, being the other. By
virtue of his office as such district judge, the said Theron Stevens became the trustee of the
said townsite of Goldfield, under the provisions of U. S. Rev. St., sec. 2387, U. S. Comp. St.
1901, p. 1457. (Lechler v. Chapin, 12 Nev. 65.)
It is contended by the appellant that the judgment and order directing the peremptory writ
of mandamus is void, for the reason that the court was without jurisdication to enter the
judgment and order in the premises. In this contention we concur.
The trust created by the act of Congress was an official one and was, in no sense, personal
to the appellant Theron Stevens. He was trustee of the townsite of Goldfield by virtue of his
office as district judge of the Seventh Judicial District. (Lechler v. Chapin, supra; Smith v.
Hill, 89 Cal. 122, 26 Pac. 644; Whittlesey v. Hoppenyan, 72 Wis. 140, 39 N. W. 355; Smith v.
Pipe, 3 Colo. 187; Georgetown v. Glaze, 3 Colo. 230; Aspen v. Rucker, 10 Colo. 184, 15 Pac.
791; 6 Fed. St. Ann., p. 344.)
As the appellant was trustee of the townsite of Goldfield by virtue of his office as district
judge, his associate, Judge Somers, was without power to compel him by mandamus to
exercise the duties imposed upon him as such trustee in any particular way. (Comp. Laws,
3542; Shreve v. Pendleton, 129 Ga. 374, 58 S. E. 880; Elliott v. Hipp, 68 S. E. 736; State v.
Circuit Judge, 9 Ala. 343; 23 Cyc. 541.)
The appellant as trustee of the townsite of Goldfield, by virtue of his office as district
judge, is not an inferior officer who may be compelled to perform a duty enjoined upon him
by law by proceedings in mandamus instituted in a district court.
The Supreme Court of Georgia, in the recent case of Shreve v. Pendleton, Judge, supra,
said: We think an insurmountable obstacle confronts the plaintiffs, before the merits of
their case can be considered.
insurmountable obstacle confronts the plaintiffs, before the merits of their case can be
considered. It involves a question of such grave concern that it is well that it should be settled
before any serious complication may arise from one judge invading the jurisdiction of another
judge of coordinate power, and compelling him by mandamus to do an act which, though not
strictly judicial in character, appertains to and is devolved upon the judicial office. If one
judge of the superior court is without jurisdiction to issue the writ of mandamus against
another judge of the superior court, to compel the performance of an act appertaining to the
latter's judicial office, this court will not reverse the judgment refusing the writ. (Harris v.
Sheffield, 128 Ga. 299, 57 S. E. 305.) * * * The very etymology of the word mandamus'we
commandimplies superior power; the power of a superior authority to compel an official or
inferior judicature to act. The same reason which prohibits an inferior court from controlling
the conduct of a superior tribunal applies just as cogently to the effort of one judge to compel
the action of another judge of coordinate jurisdiction and power. The statute requires a judge
of the superior court to decide a motion for a new trial within a specified time; yet no one
would contend that a judge of another circuit had such supervisory power as to compel his
action by mandamus. The question was squarely before the Alabama Supreme Court in State
ex rel. Thompson v. Circuit Judge of Mobile, 9 Ala. 338, where it was held that where the
statute imposes the duty, not upon the individual, but upon the officer, in the absence of an
express statute, one circuit judge has not the power to issue a mandamus to another circuit
judge.
In Elliott v. Hipp, supra, the same court said: The provisions in reference to the
appointment of county registrars are contained in Pol. Code, pars. 50, 51. Section 50 requires
that the judge of the superior court of each county shall biennially appoint three upright and
intelligent citizens of the county as county registrars, and that he shall have the power, with or
without cause, to remove any registrar and appoint a successor.
any registrar and appoint a successor. Section 51 makes it the duty of the judge not to appoint
all the registrars from any one political interest or party, but to so regulate his appointments
and removals as to maintain a bipartisan board. Clearly the duties defined in these sections
relate to acts to be performed by the judge of the superior court in his capacity as such judge,
and therefore are official functions pertaining to that office. The writ of mandamus implies
that the authority issuing it is possessed of power to enforce obedience to its mandate. One
superior court judge in this state has no more power than another, and no one of them has
power to compel another to perform an official act. (Shreve v. Pendleton, 129 Ga. 374, 58 S.
E. 880.)
The question sought to be determined by the mandamus proceedings in the lower court
was the amount which the trustee had a right to charge the lot claimant under the provisions
of Comp. Laws, 345, supra. The appellant, trustee, determined that, under the provisions of
said section, the respondent was required to pay for his lot the sum of $9.50 and refused to
issue a deed upon being tendered the sum of $4.50. The lot claimant upon proceedings in
mandamus before the district court, the trustee's colleague on the district bench, presiding,
obtained a decision holding that the sum of $4.50 was the maximum charge which the trustee
could make in the premises, and ordered that a writ of mandamus issue accordingly. To
permit the writ to issue in this case is to compel one district judge, in the exercise of a
judicial duty, to be governed by the views of another district judge as to the construction of a
statute, contrary to his own opinion of what that construction should be, a situation contrary
to the principle of the law of mandamus, which presupposes a superior authority to command
the doing of a particular act enjoined by law.
The lower court being without jurisdiction, its judgment is void.
Judgment reversed and cause remanded, with directions to dismiss the proceedings.
____________
33 Nev. 531, 531 (1910) State v. Grimmett
[No. 1922]
THE STATE OF NEVADA, Respondent, v. S. P.
GRIMMETT, Appellant
1. HomicideSelf-Defense.
Where one, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty, is
attacked by an assailant, and it is necessary for him to kill the assailant to protect his own life, he need not
flee for safety, but may stand his ground and kill the assailant.
2. HomicideSelf-DefenseEvidenceSufficiency.
Evidence held to show that a killing was committed in self-defense.
S. P. Grimmett was convicted of voluntary manslaughter, and he appeals. Reversed.
P. A. McCarran and Wm. Woodburn, for Appellant.
R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, and Augustus
Tilden, District Attorney, for the State:
Appellant's first proposition is that the verdict of the jury in convicting appellant of the
crime of voluntary manslaughter is contrary to the evidence. The question as to who was the
aggressor, and the question whether the defendant acted in self-defense are peculiarly for the
jury to determine. They are not questions of law in any sense, and the verdict will not be
disturbed unless it is clearly against the evidence.
Said Leonard, J., in State v. Mills, 12 Nev. 405: This court cannot reverse a judgment in a
criminal case on the ground that the verdict is contrary to the evidence, when there is any
evidence to support it. When there is some evidence to support every fact necessary to make
the crime complete, a prima facie case is made out; and when that conclusion is reached we
have no jurisdiction to look beyond and decide as to the weight and preponderance of
evidence.
See, also, State v. Huff, 11 Nev. 26; State v. McGinnis, 6 Nev. 109; State v. Glovery, 10
Nev. 24.
Appellant urges error in the concluding part of instruction 15 given by the court. It would
seem, from counsel's statement and citations, that the objection is to the phrase, or if the
danger were imminent, but defendant did not believe it was, the homicide was not
justifiable.
In Williams v. U. S., 88 S. W. 334, 346, the court held proper an instruction that the
circumstances must be such as to excite the reasonable fears in a rational mind, and the
person shooting must act under the influence of such fears and not in a spirit of revenge.
See, also, Robinson v. Terr, 16 Okl. 241; Lee v. State, 72 Ark. 436; Henry v. People, 198
Ill. 162; Brickwood's Sackett Instructions, sec. 3112, 3113.
Bishop's New Crim. Law, sec. 865, thus states the rule: If one who is assaulted (we have
seen that there must be an overt act, rendering the danger imminent) being himself without
fault in bringing on the difficulty, reasonably apprehends death or great bodily harm to
himself unless he kills the assailant, the killing is justifiable.
Wharton on Homicide, 3d ed., p. 361, sec. 225, says: It must appear that the slayer was in
great peril of death or serious bodily harm, or had reasonable ground for believing, and did
believe, that he was in such peril. At p. 358, sec. 223: He must believe at the time that he is
in such immediate danger of losing his own life, or of receiving serious bodily harm. And at
p. 371, sec. 228: Belief in danger or fear of death or great bodily harm must have been
actually entertained to justify a homicide * * * and, though the required danger actually
existed, killing is not justified where it was not apparent and the slayer was ignorant of its
existence. See Trogdon v. State, 133 Ind. 1, 32 N. E. 725.
Counsel's statement that where there is immediate danger it is not incumbent on defendant
to fly, but that he has a right to stand his ground and slay his adversary, is superficial and
narrow; it does not fit all conditions, and it beclouds the law as applicable to this particular
case.
One who enters willingly into a combat and fights willingly, not for his own protection,
but to gratify his passion by inflicting injury upon his adversary, engages in a mutual combat
which will prevent him from invoking the doctrine of self-defense. (Wharton, p. 538, sec.
334, and cases cited.)
The appellant, S. P. Grimmett, was indicted by the grand jury of Esmeralda County, State
of Nevada, for the crime of murder, for shooting and killing one Charles Edward Baker on the
24th day of October, 1909. The appellant was regularly tried before a jury in the District
Court of Esmeralda County, found guilty of voluntary manslaughter, and sentenced by the
court to serve a term of six years in the Nevada state penitentiary. From the judgment of
conviction, and from the order of the lower court denying a motion for a new trial interposed
by defendant, relief is sought by appeal in this court.
Many assignments of error are urged by the appellant, but it will be only necessary to
consider one, to wit: That the verdict of the jury is contrary to the evidence. Before
proceeding to a consideration of this assignment of error, which we believe will be sufficient
for the purpose of disposing of this case on appeal, we will advert to the confession of error
made by the attorney-general on behalf of the state in submitting this case, at which time the
representative of the attorney-general's office said: May it please the Court: In the case of
State v. Grimmett, the state concedes that fatal error exists, in that the verdict of the jury is
clearly contrary to the evidence. A careful examination of the record shows that the defendant
acted in self-defense; that he would have probably been killed himself if he had not shot at
the time he did. The aggressive acts of Baker, the decedent, brought about his own death, and
the defendant acted as any other reasonable man would have done when so situated. After
the submission of the case the district attorney of Esmeralda County, in opposition to the
position of the attorney-general in confessing error, asked leave and was permitted by
the court to file a supplemental brief in behalf of the state, which we have given due
consideration.
opposition to the position of the attorney-general in confessing error, asked leave and was
permitted by the court to file a supplemental brief in behalf of the state, which we have given
due consideration.
An examination of the evidence, however, reveals to our mind a clear case of self-defense.
The evidence introduced in behalf of the state and also of the defendant conclusively proves
that Baker was the aggressor in the difficulty, which resulted in the loss of his life, and that it
was necessary for the defendant to kill him in order to preserve his own. It appears on the
night of the tragedy, from the testimony of witnesses for the state, that the decedent, after
being asked for $7.50, which the defendant claimed the decedent owed him, became violently
angry, called the defendant a hop-head and a son of a bitch, hurriedly removed his coat,
threw it on a roulette wheel in the saloon, ran for a billiard cue, and rushed towards the
defendant, but was intercepted and the cue taken away from him by bystanders. Whereupon
the decedent immediately ran back of the bar, took a revolver from the drawer, and as he
rushed to the end of the bar, revolver in hand, fired one shot at the defendant, whereupon the
defendant fired two shots, killing the decedent. For some time prior to the killing, the
participants in this fatal affray were on unfriendly terms, and the decedent had threatened to
kill the defendant.
The law is well established that where a person, without voluntarily seeking, provoking,
inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant,
and it is necessary for him to take the life of his assailant to protect his own, then he need not
flee for safety, but has the right to stand his ground and slay his adversary. Reviewing the
whole evidence, we believe the position of the attorney-general, in confessing fatal error, is
supported by an overwhelming preponderance of the evidence, and that the verdict of the jury
is contrary to the evidence and must be reversed.
It is so ordered.
____________
33 Nev. 535, 535 (1910) State v. Eggers
[No. 1940]
THE STATE OF NEVADA, Ex Rel. LEONARD B. FOWLER, Petitioner, v. J. EGGERS,
State Controller of the State of Nevada, and D. M. RYAN, State Treasurer of the State of
Nevada, Respondents.
1. StatesGeneral Appropriation BillsConstruction.
The setting apart in a general appropriation bill of various funds to cover payment of salaries and
other expenses of the state government, while it may reserve the money for that purpose, does not, in
itself, authorize the payment of the money from the fund.
2. OfficesConstructionRetroactive Effect.
Words in a statute simply specifying that an officer shall receive a designated compensation have no
retroactive effect, unless there is something in the language indicating it.
3. Attorney-GeneralGeneral Appropriation BillConstructionRetroactive Effect.
A general appropriation bill approved March 22, 1909 (Stats. 1909, c. 140), appropriated for the
years 1909 and 1910, $4,800 for salary of a deputy attorney-general. An act approved on the following
day (Stats. 1909, c. 159) provided that the salary of a deputy attorney-general should be $2,400 a year,
payable out of the general fund the same manner that salaries of other state officers are paid, which,
under an earlier statute, was monthly. There was nothing in either of the acts in the nature of a relief bill.
Held, that the intent was that the deputy attorney-general should be paid monthly in the future, and an
incumbent who, during the part of the year before the approval of the act, had acted as stenographer in
the attorney-general's office, drawing a salary from the state therefor, and had also acted as deputy
attorney-general under a previous statute not providing compensation for such office, was not entitled
under the acts to receive the designated salary for the portion of the year previous to their passage.
Original proceeding. Mandamus by the State on the relation of Leonard B. Fowler against
J. Eggers, State Controller, and another. Writ denied.
Thomas J. Salter, for Petitioner.
R. C. Stoddard, Attorney-General, for Respondents.
This is an application for a writ of mandate requiring the state controller to draw his
warrant in favor of relator for salary as deputy attorney-general for the months of January
and February, and for that part of March extending from the 1st to the 22d, 1909.
tor for salary as deputy attorney-general for the months of January and February, and for that
part of March extending from the 1st to the 22d, 1909.
During all the times mentioned, and previously thereto, he was acting as stenographer in
the attorney-general's office, and received from the state for his services in that connection
$100 per month. An act approved February 8, 1908, authorized the attorney-general to
appoint deputies, but did not provide for the payment of any compensation to them by the
state. On July 6, 1908, relator was appointed and qualified, and has since served as deputy
attorney-general.
In the general appropriation bill approved March 22, 1909, there was appropriated, with
other numerous items for the support of the government of the state for the years 1909 and
1910, for salary of stenographer in the attorney-general's office $2,400, and for salary of the
deputy attorney-general $4,800. (Stats. 1909, c. 140.)
In an act approved March 23, 1909, section 1 provides that from and after the passage of
this act the salary of the deputy secretary of state shall be $2,400 per annum, payable out of
the general fund, and section 2 that the salary of one deputy attorney-general is hereby fixed
at $2,400 per annum, payable out of the general fund in the same manner as salaries of other
state officers are paid. (Stats. 1909, c. 159.) Another act, approved March 22, 1909, provided
that from and after the passage of this act, the salary of the private secretary to the governor
shall be $2,400 per annum, payable out of the general fund. (Stats. 1909, c. 141.)
The general appropriation bill for 1909 and 1910 appropriated for the salary of the
governor's private secretary $4,800, and a like amount for the deputy secretary of state,
sufficient to cover the salaries of those deputies as increased for the full period of two years,
and including the time within the two years prior to the passage of the acts increasing the
salaries; but it does not appear that they, or others, excepting the relator, who had their
salaries increased by the legislature, and for whose salaries as increased amounts were
inserted in the general appropriation bill sufficient to cover their salaries for the full two
years as increased, made any application for the payment of increased salaries for
services prior to the time that the acts mentioned raising their salaries took effect.
as increased amounts were inserted in the general appropriation bill sufficient to cover their
salaries for the full two years as increased, made any application for the payment of increased
salaries for services prior to the time that the acts mentioned raising their salaries took effect.
It is claimed that under this general appropriation bill approved March 22, 1909,
appropriating $4,800 for the salary of the deputy attorney-general for two years, and under the
act of March 23, 1909, fixing the salary of one deputy attorney-general at $2,400 per annum,
payable out of the general fund in the same manner as salaries of other officers are paid, the
relator is entitled to draw the full $4,800 for the two years, and more particularly that part of
it running at the rate of $200 per month, from the 1st of January to the 22d of March, 1909,
during which time he served both as deputy attorney-general and as stenographer in the
attorney-general's office, and during which period he was paid only as such stenographer. As
money cannot be paid out of the state treasury except under an act of the legislature indicating
an intention that it shall be paid, the question arises whether there is anything in these acts
which indicates that the legislature intended to pay the relator for services as deputy
attorney-general for the part of the year previous to the passage of the acts, during which he
was acting and received compensation as stenographer.
We find nothing in either of the acts which evinces such an intention. The setting apart in
the general appropriation bills of various funds to cover the payment of salaries and the
payment of other expenses of running the state government, while it may reserve the money
for that purpose, does not, in itself, authorize the payment of the money from the fund.
Notwithstanding the appropriations in the general appropriation bill, claims, for instance, for
fuel and stationery, or for salaries, would not be payable until the stationery and fuel or the
services had been furnished, and part or all of them might never be furnished, and the paying
out of the various sums appropriated is ordinarily, and in the absence of special language,
dependent upon and authorized by other acts.
special language, dependent upon and authorized by other acts.
As we held in State v. Eggers, 29 Nev. 469, 16 L. R. A. (N. S.) 630, it is not necessary that
money be appropriated from the general fund for the payment of the salaries of state officers
when the legislature has made direct provision for the payment of their salaries monthly.
Hence, here the deputy attorney-general would be entitled to his salary, under the act of
March 23d creating it, from that time without any appropriation having been made for it in
the general appropriation bill. There is nothing in either of these acts in the nature of a relief
bill, or, as we construe them, indicating that the legislature intended to pay for services
rendered before either act was passed. Under the principle stated in that case, it is necessary
that it appear that the legislature intended that payment be made for services out of the proper
fund. The provision in the later act, which could be considered to control in case of conflict,
that the salary of the deputy attorney-general is fixed at $2,400 per annum, payable out of the
general fund in the same manner that salaries of other state officers are paid, which under an
earlier statute is monthly, indicates an intention to have him paid monthly in the future,
instead of one that payment be made by way of relief for nearly three months' previous
services, while relator was acting and receiving compensation as stenographer. Bills for such
relief are usually specific, stating the amount and the name of the person to whom it is to be
paid. It has frequently happened that some of the appropriations made for two years
intervening between the sessions of the legislature have been larger than expended, in which
case a part has lapsed into the treasury.
At the time of preparing and introducing the general appropriation bill, the legislature
probably did not know the exact date upon which the bill providing the salary for the deputy
attorney-general would be approved and become effective, and for that reason could not
provide in the general appropriation bill the exact amount necessary to pay this salary from
the time of the passage of the act providing for it, but inserted an amount which would
cover the salary for the full period of two years, so that there would be ample in the fund.
sary to pay this salary from the time of the passage of the act providing for it, but inserted an
amount which would cover the salary for the full period of two years, so that there would be
ample in the fund.
We think the mere appropriation of the $4,800 for the two years, considered in connection
with the act passed one day later, did not authorize the controller to draw warrants for salary
for the period prior to the passage of the acts. We are unable to say that it was the intention of
the legislature to pay the deputy attorney-general for the services rendered prior to such
passage. Words in a statute simply specifying that an officer shall receive a designated
compensation have no retroactive effect, unless there is something in the language indicating
it. It is the rule ordinarily that the mere designation of an amount in the general appropriation
bill sets apart the sum specified, so that it may be used to pay some indebtedness of the state
authorized and incurred under some other statute. We think the mere setting apart of the
money in the general appropriation bill for the two years is too vague to indicate an intention
on the part of the legislature to pay the relator a salary for a period prior to the passage of the
act and while he was drawing salary from the state for services rendered in another capacity.
The statement of the court, and cases cited in the case of State v. LaGrave, 23 Nev. 125,
are apparently conclusive against the principal contention advanced on behalf of the relator:
The purpose of the general appropriation act is to provide funds for carrying on the state
government. The mere fact that money is appropriated for an officer's salary, or for any other
purpose does not of itself, make that money payable to any particular person. There must still
be some authority of law to justify the controller in drawing a warrant for it, or the treasurer
in paying it out. (Gen. Stats. 1811.) If more is appropriated than is sufficient for the particular
purpose designated, it is to be covered back into the general fund at the end of the fiscal
years. (State ex rel. Wilkins v. Hallock, 20 Nev. 73.)
[20 Nev.] 73.) If less, it does not repeal a former act fixing an officer's salary, unless such
clearly appears to have been the intention. (Mechem, Pub. Off. 857; State v. Steele, 57 Tex.
200; State v. Cook, 57 Tex. 205.)
See, also, Bradley v. Esmeralda County, 32 Nev. 168.
The application for the writ is denied.
____________
33 Nev. 540, 540 (1910) State v. Dickerson
[No. 1892]
THE STATE OF NEVADA, ex rel. L. F. WHITE, Relator, v. D. S. DICKERSON,
Lieutenant-Governor and Acting Governor of the State of Nevada, Respondent.
1. Constitutional LawLegislative Powers.
The legislature, representing the people of the state, has the sole authority to enact and repeal statutes,
and in this regard its power is supreme in all matters of government, where not prohibited by
constitutional limitations, state or federal.
2. Constitutional LawEncroachment on Legislature.
Questions relating to the wisdom, policy, and expediency of statutes are for the people's
representatives in legislature assembled, and not for the governor or the courts to determine.
3. Constitutional LawDistribution of Governmental Powers.
Each of the three departments of government, the legislative, executive, and judicial, is supreme in the
powers conferred upon it by the constitution, and no department has the right to control or interfere with
the powers delegated to another department.
4. Constitutional LawEncroachment on Executive.
Neither the legislature nor the courts can compel the governor to perform acts which would be in
conflict with the powers and prerogatives conferred upon him by the constitution. As to these he is
absolute.
5. Constitutional LawEncroachment on LegislaturePowers of Governor.
The governor may recommend the passage of laws, and may veto bills passed by the senate and
assembly; but when an act not in conflict with the constitution passes both houses of the legislature, and
is approved by him or passes over his veto, it becomes binding, and no person is above a law so enacted.
As he cannot prevent its passage over his veto, he is powerless to set aside a statute after it has become a
law.
6. MandamusSubject of ReliefMinisterial Duty of Governor.
The governor may be required to comply with an act of the legislature, approved by the chief
executive at the time of its passage, which directs him to perform a ministerial duty which could have
been enjoined upon any other officer or agent of the state, and which is in no way limited by or relates to
the gubernatorial powers or privileges specified in the constitution.
7. Constitutional LawExecutiveNature of Powers.
The provision in the act entitled An act to require the acceptance and collection of grants, devises,
bequests, donations, and assignments to the State of Nevada, approved February 26, 1901 (Stats. 1901,
c. 19), that whenever any grant, devise, bequest, donation, or gift or assignment of money, bonds, or
choses in action shall be made to this state, the governor is directed to receive and accept the same, so
that the right and title to the same shall pass to the state, imposes a ministerial duty upon the governor
which could have been conferred as well upon any other officer or person, and which in no way conflicts
with or pertains to the constitutional powers or prerogatives of the governor, excepting that it is his duty
to enforce this and other statutes under section 7 of article 5 of the constitution, which provides that he
shall see that the laws are faithfully executed. He is nowhere empowered to set aside the law because he
may not agree with its policy. He is as much unauthorized to prevent the reception of the bonds as if the
legislature had directed the state treasurer instead of the governor to accept them for the state.
8. MandamusSubject of ReliefPerformance of Ministerial Duties by Acting Governor.
As the supreme court is authorized to finally construe the laws, and is empowered by the constitution
and statute to issue writs of mandamus to compel the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station. And as the lieutenant and acting governor is in
no way excepted from these provisions or empowered to abrogate the statute, a writ of mandamus will
issue directing him to comply with the requirement of the act of the legislature and accept the bonds, the
same as a writ would issue requiring any other officer or person to perform in compliance with the
statute, a ministerial act, where no discretion is imposed and no constitutional provision is infringed.
Otherwise, he could refuse, contrary to the statute, and merely for reasons of his own, to accept cash, or
United States or other bonds, of the value of hundreds of thousands or millions of dollars, tendered for
the benefit of the university, or schools, or charities of the state, or could decline to observe or obey any
other act of the legislature, notwithstanding he is especially obligated by his oath and by the constitution
to faithfully execute the laws.
9. CourtsAmount in ControversyPleading and Proof.
As the constitution authorizes the issuance of writs of mandamus regardless of the value involved,
and the bonds tendered with their coupons are of the face value of over $400,000, and the respondent
introduced no proof to support the allegations in his answer that the bonds are of no value, their value,
which depends upon the result of a suit, need not be proven in advance by the petitioner in order to entitle
him to a writ of mandate requiring their acceptance preliminary to a suit to determine their validity, and
which would also establish their value. As with other negotiable instruments their value is presumed.
10. CourtsJurisdictionAmount in Controversy.
If any amount is required to authorize the issuance of a writ of mandate when there is a real contest,
the amount in controversy, which ordinarily controls in determining the jurisdiction of the courts, may be
considered to be the same in a mandamus proceeding preliminary and incidental to an action on the
bonds that it would be in a suit to recover judgment upon them, which is their face value. In suits upon
notes and bonds and in actions for damages, it is not necessary to prove the value of the claim in advance
of the trial.
11. MandamusProceedingsIssues.
Doubtful questions relating to the legality or validity of, or right of recovery upon, bonds, or to their
repudiation, or the statute of limitations, and which may be properly tried and adjudicated in an action
between the holder and the obligor, need not be determined in the absence of the obligor in a proceeding
for a writ of mandate requiring their acceptance by the chief executive preliminary to the bringing of a
suit for the recovery of a judgment upon them against the obligor. It is not the duty of the chief executive
nor of the courts upon application for writ of mandate to determine these questions in advance and
possibly adversely to the acceptance of the bonds by the state and to their validity so as to set aside the
statute and will of the legislature, prevent a suit, and deprive the proper tribunal, the Supreme Court of
the United States, passing upon the objections made to the legality of the bonds.
12. MandamusDiscretion of Court.
If the court has any jurisdiction to refuse the writ of mandate relating to a matter concerning the
public interest, where a party is clearly entitled to it, it ought not to exercise that discretion by refusing
the writ when such refusal would abrogate the plain language of the statute.
13. Constitutional LawEncroachments on Legislature and Judiciary.
The contention of the lieutenant and acting governor that the acceptance as directed by the statute of
repudiated bonds of a sister state, tendered to this state as a donation, would disturb the harmonious
relations existing between the two states, and that for certain legal reasons the bonds cannot be
collected, raises a question for the legislature in the first instance and for the
judiciary in the second, neither of which is within the functions of the executive or
justifies his refusal to accept the bonds.
collected, raises a question for the legislature in the first instance and for the judiciary in the second,
neither of which is within the functions of the executive or justifies his refusal to accept the bonds.
14. MandamusSuspension of Writ Granted.
The lieutenant and acting governor having refused to accept, pursuant to the terms of the statute,
repudiated bonds of the State of North Carolina, of the face value of over $400,000, upon the ground,
among others, that their acceptance would tend to disturb the friendly relations existing between the
states, and a writ of mandate requiring such acceptance having been ordered upon the eve of the
convening of the legislature, the execution of the writ will be stayed in order to give that body, which has
sole control of the legislative policy of the state regarding matters of such public interest, an opportunity
to determine whether it will, for the reasons advanced by the executive, or for other considerations,
amend the law so that the acceptance of the bonds by the state will not be required.
Norcross, C. J., dissenting.
Original Proceeding. Mandamus by the State, on the relation of L. F. White, against D. S.
Dickerson, Lieutenant-Governor and Acting Governor of Nevada. Writ granted, and service
and execution thereof suspended.
Statement of Facts
Relator alleges that he is a citizen and taxpayer of the State of Nevada, and that he brings
and prosecutes this proceeding in his own behalf and for and on behalf of all other taxpayers
of the state; that the owners and holders of 145 bonds of the State of North Carolina, of the
par value of $401,170, donated and tendered them to respondent, as acting governor, for and
on behalf of the state, pursuant to the terms and requirements of an act of the legislature
entitled An act to require the acceptance and collection of grants, devises, bequests,
donations and assignments to the State of Nevada, approved February 26, 1901 (Stats. 1901,
c. 19), and that the respondent failed and refused to accept or receive the bonds as required by
the terms of this act.
In his answer respondent admits that the bonds were tendered to him as lieutenant and
acting governor, pursuant to this act of the legislature, and that he refused to accept or
receive them on behalf of the state as a donation or otherwise.
to accept or receive them on behalf of the state as a donation or otherwise. He alleges in the
answer, upon information and belief, that the bonds are a part of several bond issues of the
State of North Carolina made in the years 1868, 1869, and 1870, in aid of certain railroad
companies, aggregating $11,407,000, and that these bond issues were authorized and made as
a result of a conspiracy to defraud the State of North Carolina, and without any valuable
consideration.
He further alleges that the bonds were declared invalid and uncollectible by an act of the
legislature of the State of North Carolina, ratified November 23, 1874, and by a constitutional
amendment adopted by the people of that state in 1880; that the 145 bonds tendered are a part
of 11,407 bonds authorized and issued, leaving 11,262 bonds of the par value of $11,262,000,
owned by individuals residing out of the State of Nevada, who are without any legal right or
remedy for the enforcement of the payment thereof, and which bonds remain unpaid by
reason of the inhibition of the eleventh amendment of the constitution of the United States,
which provides: The judicial power of the United States shall not be construed to extend to
any suit in law or equity commenced or prosecuted against one of the United States by
citizens of another state or by citizens or subjects of any foreign state.
Respondent has further answered that the 145 bonds tendered are barred by the statute of
limitations of the State of North Carolina; that by reason of the declaration of invalidity of
these bonds by the legislature of that state, and by the people as expressed in the
constitutional amendment of 1880, and because of the fact that the owners or holders of these
bonds are without legal remedy or right to enforce collection owing to the eleventh
amendment to the federal constitution, and because the bonds are barred by the statute of
limitations of the State of North Carolina, they are without any real value in fact, unless it be
a small speculative value arising out of the possibility of an adjudication of their validity in
the federal courts as a result of their acceptance by the respondent, and the institution of
suit by the State of Nevada or some other state under similar circumstances to recover
thereon; that the acceptance of the bonds would not benefit the State of Nevada, or its
university or public schools or charities, for the reason that the bonds are of no value;
that the acceptance of them would impose upon this state a heavy burden of expense
incident to the litigation necessary to their enforcement; that their acceptance and
attempted enforcement would tend to disturb the friendly relations now existing between
the people of the State of North Carolina and the people of the State of Nevada; that the
tender of the bonds is not made in good faith or for the purpose of donating to or
bestowing upon the State of Nevada or its university or schools or charities any valuable
thing, but on the contrary for the sole purpose of insuring the bringing of a suit in the
federal courts by the State of Nevada against the State of North Carolina for the
enforcement of the payment of the bonds and interest coupons thereto attached, with the
desire and expectation on the part of the owners and holders of the bonds, over and
above the 145 bonds tendered, the balance of the issues of bonds before mentioned,
amounting to 11,262 bonds of the par value of $11,262,000, and of obtaining from the
State of North Carolina, by reason of such suit and adjudication, a compromise and
settlement as to the other bonds so issued; that the Nevada statute referred to before is
violative of section 20, article 4, of our state constitution, which provides: "The legislature
shall not pass local or special laws in any of the following enumerated cases, that is to
say: * * * giving effect to any invalid deeds, wills or other instruments."
eral courts as a result of their acceptance by the respondent, and the institution of suit by the
State of Nevada or some other state under similar circumstances to recover thereon; that the
acceptance of the bonds would not benefit the State of Nevada, or its university or public
schools or charities, for the reason that the bonds are of no value; that the acceptance of them
would impose upon this state a heavy burden of expense incident to the litigation necessary to
their enforcement; that their acceptance and attempted enforcement would tend to disturb the
friendly relations now existing between the people of the State of North Carolina and the
people of the State of Nevada; that the tender of the bonds is not made in good faith or for the
purpose of donating to or bestowing upon the State of Nevada or its university or schools or
charities any valuable thing, but on the contrary for the sole purpose of insuring the bringing
of a suit in the federal courts by the State of Nevada against the State of North Carolina for
the enforcement of the payment of the bonds and interest coupons thereto attached, with the
desire and expectation on the part of the owners and holders of the bonds, over and above the
145 bonds tendered, the balance of the issues of bonds before mentioned, amounting to
11,262 bonds of the par value of $11,262,000, and of obtaining from the State of North
Carolina, by reason of such suit and adjudication, a compromise and settlement as to the other
bonds so issued; that the Nevada statute referred to before is violative of section 20, article 4,
of our state constitution, which provides: The legislature shall not pass local or special laws
in any of the following enumerated cases, that is to say: * * * giving effect to any invalid
deeds, wills or other instruments.
It is alleged in a supplemental answer that the holders of the bonds are without litigable
right or lawful forum or any remedy for their enforcement: First, because there is no law,
either constitutional or statutory, in the State of North Carolina permitting suit to be brought
in the courts of that state against the State of North Carolina, other than section 9, article 4,
of the North Carolina constitution, which provides: "The supreme court shall have original
jurisdiction to hear claims against the state, but its decisions shall be merely
recommendatory; no process in the nature of an execution shall issue thereon; they shall
be reported to the next session of the general assembly for its action."
other than section 9, article 4, of the North Carolina constitution, which provides: The
supreme court shall have original jurisdiction to hear claims against the state, but its decisions
shall be merely recommendatory; no process in the nature of an execution shall issue thereon;
they shall be reported to the next session of the general assembly for its action. Second, that
it has been held by the Supreme Court of North Carolina in the cases of William Horne v.
State, 84 N. C. 362, and Baltzer v. State, 104 N. C. 265, 10 S. E. 153, that even the
recommendatory jurisdiction given the supreme court by the constitutional provision above
recited is abrogated in respect to claims based upon any bonds issued by the State of North
Carolina in the years 1868, 1869, and 1870, by the provisions of section 6, article 1, of the
constitution of that state, being the amendment adopted in 1880 as before stated.
It is also alleged in the supplemental answer that the issuance of a writ of mandate against
the respondent requiring him to accept the bonds for the State of Nevada would be violative
of article 3 of the constitution, which provides that the powers of the state government shall
be divided into legislative, executive, and judicial departments, and that no person charged
with the exercise of the powers properly belonging to one of these departments shall exercise
any functions pertaining to either of the others except in cases therein expressly directed and
permitted. And finally, that the Nevada statute before mentioned, by its terms, vests in the
governor of the state a discretionary power in respect to the acceptance of any property that
may be tendered him for the state, and that he is not required to accept property under its
provisions until after he has reported its tender to the legislature.
Campbell, Metson, Drew, Oatman & Mackenzie, for Petitioner:
This is a case involving purely public right.
The cases recited by respondent are not authorities to the point that in a case involving a
matter publici juris the court has any discretion to deny relief.
the point that in a case involving a matter publici juris the court has any discretion to deny
relief.
On the contrary there is an abundance of unquestioned authority on the proposition that in
a case involving a matter publici juris the discretion which the court may exercise in a matter
involving private right does not exist.
In 19 Am. & Eng. Ency. Law, p. 753, it is said: Public and Private RightsCourts have
discretion as to issuing the writ in aid of private rights, but when it is invoked in matters of
public right there is no discretion. Citing State v. Lehre, 7 S. C. 270; State v. Doyle, 40 Wis.
220; New Haven Company v. State, 44 Conn. 390.
In 26 Cyc., p. 146, it is said: State CasesWhere the writ is applied for by the state for
the public benefit it has been held that the court has no discretion to refuse it.
In 19 Am. & Eng. Ency. Law, p. 753, it is said: Mandamus and injunction are upon the
same footing as regards the question of discretion. Citing Savanah Canal Co. v. Shuman, 91
Ga. 402.
In reference to this distinction between matters of private right and public right in so far as
the discretion of the court is concerned, in vol. 1, Spelling, Injunctions and Extraordinary
Remedies, sec. 22, in reference to the writ of injunction, it is said: A distinction has been
drawn between cases where it is sought in aid of private right, and where it is asked in some
matter publici juris. In the latter class of cases, it is held that the remedy being in the nature of
a prerogative remedy, when sought by the attorney-general in behalf of the people, courts
have no judicial discretion in the matter of granting the writ, but an absolute duty devolves
upon them to exercise their jurisdiction to accomplish the public object.
The case of State v. Doyle, supra, was an application for a writ of mandate to the secretary
of state. The court says: It is true that courts have discretion in issuing writs of mandamus
merely in aid of private right. But when the writ is invoked on behalf of the state, as a pure
prerogative writ, in matter publici juris, there is no discretion.
pure prerogative writ, in matters publici juris, there is no discretion. The writ goes ex debito
justiciae, without discretion.
In Attorney-General v. Railroad Companies, supra, the court says: It is true that it is said
that the granting or withholding of an injunction rests in the sound discretion of the court. But
that is judicial discretion, not wilful choice. And the rule is applied to injunctions in aid of
private remedies. The same rule applies to mandamus in cases of private right. But it does not
apply to the application of a writ to things publici juris. There the writ goes ex debito
justiciae. The court has no discretion to withhold.
The case of New Haven Company v. State, 44 Conn. 376, was a proceeding to compel a
railroad corporation to perform a public duty imposed upon it by law. Referring to the
question of the discretion of the court sought to be invoked by the respondent therein, the
court says: No doubt can exist that in a case like the one in the court below, where the writ is
applied for to enforce an act of the legislature for the public benefit and there is no other
adequate remedy for its enforcement, the state or its attorney is entitled to the writ as of right,
and there is no discretion in the court to refuse it. (Tapping on Mandamus, 54, 56, 288; 2 Dil.
on Mun. Corp., sec. 695.)
Admittedly the taxpayer, petitioner in the case at bar, sues in a purely representative
capacity, declaring upon purely public rights, the state being the petitioner on the relation
only of the taxpayer. The distinction which is made in the matter of discretion as applied to
public right as distinguished from private right beyond question renders inapplicable to the
case at bar all the general authorities cited by counsel. And we have been unable to discover
any cases which militate against the doctrine laid down in the authorities cited above as to the
want of discretion where the subject-matter is purely a matter publici juris.
But the case at bar, in addition to its not coming within the authorities cited as to
discretion in matters of private right, because involving purely public right, does not
present any features which would render such authorities applicable.
right, because involving purely public right, does not present any features which would render
such authorities applicable. The discretion which may be exercised in certain cases involving
private rights is not arbitrary discretion or one that may be exercised in accordance with the
will or inclination of the court, as distinguished from the will of the law. It must be a sound
legal discretion to be exercised in accordance with established rules of law. And if the
petitioner's right is clear the writ must issue, unless facts are presented which upon some
well-established rule would authorize the court to deny the writ. The authorities unanimously
negative the proposition that the court may refuse to issue the writ where the petitioner's
rights are based upon statute upon any theory that there is any impolicy or inexpediency in the
provisions of the law or that the law violates any principle of natural justice. There is no case
which holds that the court has any discretion in construing a statute.
In the famous case of Osborn v. United States Bank, 22 U. S. 738, 866, Chief Justice
Marshall, speaking for the court says: Judicial power, as contradistinguished from the power
of the laws, has no existence. Courts are the mere instruments of the law, and can will
nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion
to be exercised in discerning the course prescribed by law; and, when that is discerned, it is
the duty of the court to follow it. Judicial power is never exercised for the purpose of giving
effect to the will of the judge; always for the purpose of giving effect to the will of the
legislature; or, in other words, to the will of the law.
In Spelling, vol. 2, sec. 1371, referring to the discretion vested in courts to deny the
mandate where private rights are involved, it is said: When it is said that granting or refusing
the writ rests in the discretion of the court, it is not meant that the court's discretion is
absolute, because where a clear legal right to a writ of mandate is shown the court has no
discretion about granting the writ.
In Words and Phrases Judicially Defined, vol. 5, p. 4327, referring to cases involving
private right, it is said concerning the question of discretion in cases of mandate: This
discretion is a legal, not an arbitrary, one and is to be exercised in accordance with the
established rules of law. There is no power to deny the writ arbitrarily where a case comes
squarely within such rules.
In 19 Am. & Eng. Ency. Law, p. 753, it is said: But in all cases where there is a clear
legal right and no other adequate remedy the writ ought to be granted in order to prevent
failure of justice.
It is admitted that the statute involved in the case at bar is mandatory in its terms. If this
case comes within the terms of the statute, and we cannot conceive that it will be otherwise
determined, then the only matter that would appear to present itself for determination by this
court would be, What is the will of the law? The act being mandatory, and this case coming
within its provisions, there necessarily follows that the governor has a clear legal duty to
accept the bonds in question. That being so, and there being no other remedy at law, we take
it that this court cannot properly deny the writ upon any disinclination to interfere with the
action of the governor. To do so would appear to us to deny the writ upon the theory that this
court should not seek to control the discretion of the governor, and this would involve a
finding that the governor was given discretion under the statute.
If the will of the law be, as expressed by the legislature in the statute, that the duty shall be
mandatory, then we take it that the confidence which this court may have in the good
judgment of the governor in refusing the tender and the natural disinclination this court may
feel to force the governor to act contrary to his judgment cannot be proper matters upon
which may be based any discretion warranting the denial of the writ; and this is assuming,
for the purpose of argument, that the court would have any discretion in a matter of public
right. If this court predicated the refusal of the writ upon the above considerations, we
submit that it would in effect be directly subverting the purpose of the legislature to
render the duty of the governor mandatory.
upon the above considerations, we submit that it would in effect be directly subverting the
purpose of the legislature to render the duty of the governor mandatory.
We are at a loss to see what features the case at bar presents which bring the case within
any of the well-established rules of law upon which a discretion to deny the writ may be
predicated.
In State v. Cummings, 36 Mo. 263, 278, it is said: It is not for the judiciary to inquire
whether laws violate the general principles of liberty or natural justice, or whether they are
wise and expedient or not. They can only declare whether they are repugnant to constitutional
provisions and limitations. It would be a violation of well-established and safe principles for
courts to resort to any other test. There is no higher law by which we can be governed. An
attempt by judicial construction to obstruct a law, or a failure to enforce it, would be
monstrous usurpation. We cannot make or repeal a law; we are not entrusted with any such
power. If it is wrong, unjust or oppressive, an appeal must be made to the people in their
political capacity at the poll, to apply the remedy. We will not attempt to exercise judicial
legislation. We can scarcely conceive of anything that would be a compensation for
introducing into our jurisprudence such a pernicious doctrine. The most odious and dangerous
of all laws would be those depending upon the discretion of judges. Lord Camden, one of the
greatest and purest of English judges, says that the discretion of a judge is the law of tyrants;
it is always unknown; it is different in different men; it is casual, and depends upon
constitutions, temper and passion. In the best it is oftentimes caprice, in the worst it is every
vice, folly and passion to which human nature can be liable.'
Horatio Alling, for Respondent:
The granting of the writ of mandate is dependent upon the exercise of a wise judicial
discretion and is not a matter of absolute right. (19 Am. & Eng. Ency. 751; 26 Cyc. 143;
Merrill on Mandamus, sec. 62; People v. Little Rock, 215 Ill.
Rock, 215 Ill. 488; People v. Board of Supervisors Adams Co., 185 Ill. 288; People v.
Ketchum, 72 Ill. 212; High, Ex. Leg. Rem., 3d ed., sec. 6.)
In exercising such discretion the court will consider all the circumstances, reviewing the
whole case, with due regard to the consequences of its action. (Merrill on Mandamus, sec.
63.)
As to consideration, affecting the exercise of the court's discretion, see 19 Am. & Eng.
Ency. 753.
The interest of the general public may be considered. (19 Am. & Eng. Ency. 754, note 3; 2
Spelling, Ex. Relief, sec. 1372.)
The granting of a writ of mandamus to enforce merely private rights is a matter of sound
legal discretion, and, notwithstanding the clear legal right and the absence of a legal remedy,
it may be refused if circumstances make it unwise or inexpedient to grant it. (Effingham,
Maynard & Co. v. Hamilton, 68 Miss. 523; State ex rel. Phelan v. Board of Education of Fon
du Lac, 24 Wis. 683.)
The writ of mandate will not issue to compel the performance of an act which will work a
public or private mischief, or to compel a compliance with the strict letter of a law in
disregard of its spirit and in aid of a palpable fraud. (People ex rel. Wood v. Board of
Assessors, 137 N. Y. 201.)
The granting of the writ of mandate, even when the right thereto is clear, lies in the sound
discretion of the court; and where the court can see, upon a review of the whole case, that
public interest and business will be thereby prejudiced and hindered, or the rights of third
parties injuriously affected, without reasonable expectation of compensating benefits, the writ
will be denied. (Harris v. State, 96 Tenn. 496, 516.)
The writ of mandate is not wholly a writ of right, but lies to a considerable extent within
the sound discretion of the court where the application is made, and should not issue to
compel a technical compliance with the letter of the law in violation of its plain intent and
spirit, nor to wrest a statute from its true purpose.
wrest a statute from its true purpose. (Wiedwald v. Dodson, 95 Cal. 450; State v. U. S.
Express Co., 95 Minn. 442.)
This proceeding is based upon a petition for a writ of mandate, asking that the
lieutenant-governor, who, under a provision in the constitution, has been the acting governor
since the death of Governor Sparks, be required to accept, on behalf of the state, 145 bonds of
the State of North Carolina, which, with their unpaid interest coupons, are of the par value of
$401,170, under an act of our legislature approved February 26, 1901, entitled An act to
require the acceptance and collection of grants, devises, bequests, donations and assignments
to the State of Nevada, which reads as follows:
Section 1. That whenever any grant, devise, bequest, donation or gift or assignment of
money, bonds or choses in action or of any property, real or personal, shall be made to this
state, the governor is hereby directed to receive and accept the same, so that the right and title
to the same shall pass to the state; and all such bonds, notes or choses in action or the
proceeds thereof when collected, and all other property or thing of value, so received by the
state as aforesaid, shall be reported by the governor to the legislature, to the end that the same
may be covered into the public treasury, or appropriated to the state university or to the public
schools, or to state charities as may hereafter be directed by law.
Sec. 2. That whenever it shall be necessary to protect or assert the right or title of the state
to any property so received or derived as aforesaid, or to collect or reduce into possession any
bond, note, bill or chose in action, the attorney-general is directed to take the necessary and
proper proceedings, and to bring suit in the name of the state in any court of competent
jurisdiction, state or federal, and to prosecute all such suits, and is authorized to employ
counsel to be associated with him in such suits and actions who, with him, shall fully
reprepresent the state and shall be entitled to reasonable compensation out of the
recoveries or collections in such suits and actions."
resent the state and shall be entitled to reasonable compensation out of the recoveries or
collections in such suits and actions. (Stats. 1901, c. 19.)
As reasons for respondent's refusal to accept the bonds, and against the issuance of a writ
requiring their acceptance, numerous objections are made, as detailed in the foregoing
statement of facts and issues. Among the more important of these, and illustrative of others,
are the ones that the bonds were issued as the result of a conspiracy to defraud the State of
North Carolina; that they were declared invalid by an act of the legislature and by a
constitutional amendment in that state; that the bonds of the par value of $11,262,000, in
addition to the ones of the par value of $401,170, are owned by individuals who are without
remedy for the enforcement of their payment, because under the eleventh amendment to the
federal constitution the persons holding them cannot maintain a suit against the State of North
Carolina; that the bonds are barred by the statute of limitations of that state; that by reason of
the declaration of invalidity expressed by the legislature in the constitutional amendment, the
holders of the bonds are without remedy to enforce their collection, and that they are therefore
without any real value, and that the acceptance of them would impose upon the state
expensive litigation for their enforcement and would tend to disturb the friendly relations
existing between the people of North Carolina and this state. The most of these objections
and others raised, such as those which relate to the validity of the bonds, are grave judicial
questions which might be determined in an action between the State of Nevada and the State
of North Carolina, in which the latter would be entitled to appear and defend. These, and
other serious questions, judicial in their nature, are for the courts, and not properly for the
executive to determine. Whether North Carolina, acting as her own judge, and denying the
holders of the bonds the right to enforce them, even in her own courts, can make such a
constitutional and legislative repudiation of them, in the nature of a declaration of a party in
his own favor, as will prevent their enforcement in a disinterested tribunal such as the
Supreme Court of the United States, and whether the statute of limitations would run
after that state had abrogated any provision in its laws by which the holders of the bonds
might bring suit and recover judgment, are not questions essential to be determined in
this proceeding.
the nature of a declaration of a party in his own favor, as will prevent their enforcement in a
disinterested tribunal such as the Supreme Court of the United States, and whether the statute
of limitations would run after that state had abrogated any provision in its laws by which the
holders of the bonds might bring suit and recover judgment, are not questions essential to be
determined in this proceeding. The statute itself does not provide that the bonds must be of
any value, but directs the governor to accept them, without specifying that he may decline to
receive them if he believes they are without value or cannot be collected, or that the
acceptance of them will not be for the best interests of the state. Courts may decline to
consider matters which are trivial and regarding which there is no real controversy. Ordinarily
the district court and the supreme court have jurisdiction where the amount is over $300, but
the constitution confers upon this court the right to issue writs of mandamus without
mentioning any amount as being necessary to give the court jurisdiction to grant the writ.
State and federal statutes generally fix the jurisdiction of courts according to the demand or
amount in controversy, which in this proceeding, incidental to a suit for recovery on the
bonds, may be considered their face value, the same as in a suit directly upon them. Neither
this court nor any officer is greater than the organic act under which the state and the court
and officers are created. We ought not to usurp the rights of the people by amending into the
constitution nor the powers of the legislature by judicially legislating into the statute a
requirement that the value of the bonds must be proven before a suit can be maintained to
recover upon them, when neither the constitution nor the act requires such value to be shown
before this court can issue the writ of mandate. It is not necessary or usual in suing upon
bonds or other negotiable instruments to allege or prove that they are of value. If it be
conceded that unless they are of some value the lieutenant and acting governor is not required
to accept them, being regular upon their face and issued under a statute of North Carolina,
they are presumed to be of par value; but whether of any value the holder, the same as
the holder of other obligations or claims, is entitled to maintain an action to determine
whether they are legally due, and if they are to judgment, even though the judgment may
be valueless by reason of the inability of the defendant to pay.
face and issued under a statute of North Carolina, they are presumed to be of par value; but
whether of any value the holder, the same as the holder of other obligations or claims, is
entitled to maintain an action to determine whether they are legally due, and if they are to
judgment, even though the judgment may be valueless by reason of the inability of the
defendant to pay.
No proof was submitted on behalf of respondent to support the allegation in his answer
that the bonds are of no value. The statement of counsel for petitioner that the bonds were of
the market value of 25 per cent of the face value, which is not directly denied, does not
indicate that they may not be of greater value, or par value, when owned by the state, which,
differently from individuals, can maintain an action to recover upon them. The value of the
bonds to the state would be dependent largely upon the result of a suit. If litigants had to
allege and prove the value of bonds and negotiable instruments in advance of maintaining a
suit upon them, the burdens of litigation, already too great, might be doubled or greatly
increased. The determination of whether the state shall accept the bonds may be safely left
where it belongs and to the people's representatives in the senate and assembly; and, if the
state does not accept them, the question of whether the State of North Carolina is legally
liable to pay them is one which may be properly submitted to the Supreme Court of the
United States, where it belongs. The prevention of the determination of these matters by the
legislature and by the Supreme Court of the United States is not within the executive powers
which the lieutenant and acting governor is authorized to exercise, nor is it the duty of this
court to deprive the legislature of its right to determine whether the bonds shall be accepted,
nor to prevent the questions relating to their validity, the decision of which pertains to judicial
powers, from being submitted to the Supreme Court of the United States if the legislature
desires that they be accepted. No reason is apparent why this court should, in this special
and preliminary proceeding, adjudicate and uphold the statutory and constitutional acts
of North Carolina in repudiating the bonds, and denying to individual holders thereof the
right to have the question of whether she is liable for the payment of them determined in
her courts, as an excuse for nullifying the act of our own legislature.
why this court should, in this special and preliminary proceeding, adjudicate and uphold the
statutory and constitutional acts of North Carolina in repudiating the bonds, and denying to
individual holders thereof the right to have the question of whether she is liable for the
payment of them determined in her courts, as an excuse for nullifying the act of our own
legislature. If the determination of the questions relating to the liability upon the bonds were
necessary in this proceeding, as well as in a future action against North Carolina to collect
them, it might appear that the principal objections made against their enforcement have
already been considered adversely to the contentions of respondent by the Supreme Court of
the United States, in cases other than the one in which South Dakota recovered on donated
bonds of North Carolina; and that in order to sustain the claim made on behalf of the
lieutenant and acting governor that a judgment could not be recovered upon the bonds, we
would have to undertake to reverse the opinions of the Supreme Courts of the United States
and of North Carolina.
In consonance with the general principle established by numerous decisions, it was held in
Kneeland v. Lawrence Bros. & Co., 140 U. S. 209, 11 Sup. Ct. 786, 35 L. Ed. 492, that
coupon bonds payable to bearer passed by delivery, and a bona fide purchaser of them before
the maturity takes them free from any equities that might have been set up by the original
holders, and that the burden of proof is on the one who assails the bona fides of such
purchase. It would be incumbent upon the defendant in a suit upon the bonds to plead and
show that the action was barred by the statute of limitations, or this objection might be
waived.
In Wilcox v. Williams, 5 Nev. 213, it was said: No party is compelled to plead the statute
of limitations; no court can infer from lapse of time apparent on the face of pleadings, that the
statute has run.
In Moore v. Smith, 29 S. C. 254, 7 S. E. 485, the court stated: "Where a just demand is
presented, and the statute of limitations is interposed, that is new matter, and must be
established by him who relies upon it."
stated: Where a just demand is presented, and the statute of limitations is interposed, that is
new matter, and must be established by him who relies upon it.
In consonance with numerous decisions in other jurisdictions, the Supreme Court of North
Carolina has often held that the statute of limitations is an affirmative defense, and must be
pleaded and established by the party who relies upon it. (Hooker v. Worthington, 134 N. C.
283, 46 S. E. 726; Bond v. Wilson, 129 N. C. 387, 40 S. E. 182; Gupton v. Hawkins, 126 N.
C. 81, 35 S. E. 229; Parker v. Harden, 121 N. C. 57, 28 S. E. 20; Wood v. Barber, 90 N. C.
76; Hobbs v. Barefoot, 104 N. C. 224, 10 S. E. 170; Nunnery v. Averitt, 111 N. C. 394, 16 S.
E. 683; Moore v. Garner, 101 N. C. 374, 7 S. E. 732; Graham v. O'Bryan, 120 N. C. 463, 27
S. E. 122; White v. Century Gold M. Co., 28 Utah, 331, 78 Pac. 868; Borland v. Haven (C.
C.) 37 Fed. 394; Pierce v. S. P. R. R. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A.
350; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Vail v. Halton, 14 Ind. 344; Lewis v.
Mason, 84 Va. 731, 10 S. E. 529; Green v. Dodge, 79 Vt. 73, 64 Atl. 499; Hunter v. Hunter,
63 S. C. 78, 41 S. E. 33, 90 Am. St. Rep. 663; Barnet v. Houston, 18 Tex. Civ. App. 134, 44
S. W. 689; McDowell v. Potter, 8 Pa. 189, 49 Am. Dec. 503; Kilbourne v. Sullivan Co., 137
N. Y. 170, 33 N. E. 159; Moffet v. Farwell, 222 Ill. 543, 78 N. E. 925.)
It seems also to be the rule in North Carolina, in the Supreme Court of the United States,
and everywhere, that the time within which actions may be brought may be shortened if a
reasonable time thereafter is allowed for the institution of suit, but that a litigant or claimant
cannot be deprived entirely of his right to bring an action by an act of the state or legislature,
as this would amount to a denial of justice. (Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct.
76, 34 L. Ed. 659, affirming 105 N. Y. 681; Saranac v. N. Y. Comptroller, 177 U. S. 318, 20
Sup. Ct. 642, 44 L. Ed. 786; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312, 28 L. Ed.
279; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854, 27 L. Ed. 808; Sohn v. Waterson, 17
Wall. 597, 21 L. Ed. 737; Terry v. Anderson, 95 U. S. 62S, 24 L. Ed. 365; Culbreth v.
Downing, 121 N. C. 205, 2S S. E. 294, 61 Am. St. Rep.
v. Waterson, 17 Wall. 597, 21 L. Ed. 737; Terry v. Anderson, 95 U. S. 628, 24 L. Ed. 365;
Culbreth v. Downing, 121 N. C. 205, 28 S. E. 294, 61 Am. St. Rep. 661; Nichols v. Norfolk
R. R. Co., 120 N. C. 495, 26 S. E. 643; Wilcox v. Williams, 5 Nev. 206; People v. Turner, 117
N.Y. 227, 22 N. E. 1022, 15 Am. St. Rep. 498; Fiske v. Briggs, 6 R. I. 557; Rodebaugh v.
Phila. Traction Co., 190 Pa. 358, 42 Atl. 953; King v. Belcher, 30 S. C. 381, 9 S. E. 359;
Boon v. Chamberlain, 82 Tex. 480, 18 S. W. 655; Smith v. Packard, 12 Wis. 371; Willard v.
Harvey, 24 N. H. 344; Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566; Cranor v. School
Dist., 151 Mo. 119, 52 S. W. 232; Garrett v. Beaumont, 24 Miss. 377; Billings v. Hall, 7 Cal.
1; Hart v. Bostwick, 14 Fla. 162; Central Bank v. Solomon, 20 Ga. 408; Edelstein v. Carlile,
33 Colo. 54, 78 Pac. 680; Hill v. Gregory, 64 Ark. 317, 42 S. W. 408; Bradley v. Lightcap,
201 Ill. 511, 66 N. E. 546; Macnichol v. Spence, 83 Me. 87, 21 Atl. 748; Wooster v. Bateman,
126 Iowa, 552, 102 N. W. 521; Baumeister v. Silver, 98 Md. 418, 56 Atl. 825; Krone v.
Krone, 37 Mich. 308; Russell v. Lumber Co., 45 Minn. 376, 48 N. W. 3; Loring v. Alline, 9
Cush. 68.)
Where it is provided that the payment of bonds is to be made in a particular way or out of a
particular fund, the statute of limitations does not begin to run until the fund has been
provided. (Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766; State v.
Lincoln County, 23 Nev. 262; Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646; Robertson v.
Blaine Co., 96 Fed. 63, 32 C. C. A. 512, 61 U. S. App. 242, 47 L. R. A. 459.)
That pursuant to an act of the legislature the courts will compel the levying of a tax for the
purpose of paying a judgment recovered upon bonds has often been held. (Supervisors v. U.
S., 4 Wall. 435, 18 L. Ed. 419; City of Galena v. Amy, 72 U. S. 705, 18 L. Ed. 560; City of
Davenport v. U. S., 76 U. S. 409, 19 L. Ed. 704; County of Greene v. Daniel, 102 U. S. 187,
26, L. Ed. 99; Lowell v. Boston, 111 Mass. 460, 15 Am. Rep. 39; U. S. v. New Orleans, 98 U.
S. 381, 25 L. Ed. 225; State v. Clay, 46 Mo.
Mo. 231; Shinbone v. Randolph, 56 Ala. 183; State v. Milwaukee, 20 Wis. 87; Stevenson v.
Summit, 35 Iowa, 462; Com. v. Com. of Alleg. Co., 37 Pa. 277; Cass Co. v. Johnston, 95 U.
S. 360, 24 L. Ed. 416; Pegram v. County Com., 64 N. C. 557; Dillon on Municipal Bonds,
58; Jones on R. R. Securities, sec. 300.)
The objection that the acceptance of the bonds directed by the statute would tend to disturb
the friendly and harmonious relations existing between the two states, and other questions
relating to the wisdom or propriety of the statute, are for the legislature, and not for the
executive or the courts to determine. It may be conceded that the courts could not, under any
statute passed by the legislature, compel the governor to perform acts which would be in
conflict with the powers conferred upon him by the constitution, and that he is absolute in all
the prerogatives conferred upon him by that instrument. Neither the courts nor the legislature
can deprive him of any authority conferred upon him by the constitution. The act in question
is clear and positive in its direction that the bonds be accepted. It contains no qualification or
condition that he may refuse to receive them for any reason. By its terms no discretion or
judgment is vested in him. It does not relate to or infringe any of his constitutional
prerogatives. The statute merely directs him to perform a ministerial act, and the legislature
could have directed equally as well that bonds as a gift to the state should be accepted by the
state treasurer or other officer or person. The constitution defines the powers of the governor,
and provides clearly for the enactment of laws and the jurisdiction of courts.
If it be admitted that certain powers are vested in the governor by the constitution, which
neither the legislature nor the courts can control, this act in no way relates to such powers,
and is not governed or limited by any provision of the constitution, unless it be section 7,
article 5, which states that he shall see that the laws are faithfully executed, and the one
giving him the right to recommend to the legislature that this or any other act be repealed.
be repealed. When an act, not in conflict with the constitution, passes both houses of the
legislature, and is approved by the governor or passed over his veto, it is binding, and no
person is above a law so enacted. As he cannot prevent its passage over his veto, he is
powerless to set aside a statute after it has become the law. Section 4, article 6, provides that
this court shall also have power to issue writs of mandamus. Section 3542 of the Compiled
Laws, passed by the legislature under its constitutional powers, directs that the writ may be
issued to any person to compel the performance of an act which the law especially enjoins as
a duty resulting from an office, trust or station. Although the opinions of the lieutenant and
acting governor, coming from the highest executive officer of the state, are entitled to great
respect, there is nothing under our system of government which places him upon a pedestal
above the laws enacted in accordance with the provisions of the constitution by the people's
representatives in the legislature assembled. He, similarly with other public officers, is the
chosen servant of the people. The members of this court, as well as the executive, are under
an oath provided by the constitution itself to support its provisions. The one that he shall see
that the laws are faithfully executed makes it even more incumbent upon him than upon
ordinary citizens to yield obedience to the statute. The fact that with the best of motives, and
on the highest of moral grounds, he may disagree with the will of the legislature as expressed
in the statute cannot justify his failure or refusal to perform an act clearly required by its
terms.
Notwithstanding that we may agree with his conclusions as to the policy or expediency of
the statute, and as citizens or legislators would favor its amendment, we, as well as the
lieutenant and acting governor, are bound to observe the constitution and the statutes,
including the provisions for the issuance of writs of mandamus when any person refuses to
perform an act which the law especially enjoins as a duty resulting from his office or
station. He may recommend the passage of laws and approve or veto bills after they have
been passed by the senate and assembly; he may recommend the repeal of statutes which
have become the law with or without the governor's approval; but after they become the
law, with or without his approval, he is as powerless to set them aside as other officers or
individuals, and is, as we have seen, especially enjoined by the constitution and more
obligated than ordinary citizens to have them enforced.
approve or veto bills after they have been passed by the senate and assembly; he may
recommend the repeal of statutes which have become the law with or without the governor's
approval; but after they become the law, with or without his approval, he is as powerless to
set them aside as other officers or individuals, and is, as we have seen, especially enjoined by
the constitution and more obligated than ordinary citizens to have them enforced. In the
exercise of the powers conferred upon him by the constitution which carry or imply any
discretion, such as those relating to the approval or vetoing of bills or certain appointments of
persons to office, his will is absolute and his action beyond the control of the courts. The
constitution on which our government stands, and without which it would fall, nowhere
exempts the governor from being required, the same as other officers, to perform ministerial
acts such as are required by this statute, which in no way conflict with or pertain to his
constitutional prerogatives. If the chief executive may, upon the ground that in his judgment it
is not for the best interests of the state, set aside this statute, he may also for the same reason,
and contrary to the constitutional requirement that he enforce the laws, ignore other statutes;
and other officers and citizens, not specially enjoined by the constitution to enforce the laws,
would have quite as much right as he to ignore statutes which they did not deem wise or
expedient.
In Ex Parte Boyce, 27 Nev. 331, 65 L. R. A. 47, adopting the language of Justice Harlan
and the Supreme Court of the United States in the Kansas case, we said: So, also, if it be
said that a statute like the one before us is mischievous in its tendencies, the answer is that the
responsibility therefor rests upon the legislature, not upon the courts. No evils arising from
such legislation could be more far-reaching than those that might come to our system of
government if the judiciary, abandoning the sphere assigned to it by the fundamental law,
should enter the domain of legislation, and, upon grounds merely of justice or reason and
wisdom, annul statutes that had received the sanction of the people's representatives.
that had received the sanction of the people's representatives. We are reminded by counsel
that it is the solemn duty of the courts, in cases before them, to regard the constitutional rights
of the citizen against merely arbitrary power. This is unquestionably true. But it is equally
trueindeed, the public interests imperatively demandthat legislative enactments be
recognized and enforced by the courts, as embodying the will of the people, unless they are
plainly and palpably, and beyond all question, in violation of the fundamental law of the
constitution. In Wallace v. City of Reno, 27 Nev. 71, 63 L. R. A. 337, 103 Am. St. Rep. 747,
we held that the people, and through them the legislature, had supreme power in all matters of
government, where not restricted by constitutional limitations. These principles are
applicable to the executive, and he is as void of power as the courts to set aside statutes
because he may deem them unwise or inexpedient.
It may not tend to promote the best feeling for one state or neighbor or individual to
acquire by gift or purchase, or otherwise, an indebtedness against another for the purpose of
enforcing its collection; but to do so is not prohibited by any provision of the constitution.
Individuals are daily acquiring, by gift, descent or purchase, indebtedness against others and
bringing suits for the enforcement of the demands, and the courts provided by the constitution
are open for the enforcement of these demands. There is nothing in the constitution which in
the remotest degree inhibits one state from enforcing against another any demand, whether
acquired by gift or otherwise, and the state is as free as an individual to accept evidences of
indebtedness and to collect the amount due.
The claim that the bonds may not be accepted because the friendly relations existing
between the two states would be destroyed is at variance with the decision of the Supreme
Court of the United States in the case of South Dakota v. North Carolina. In that case
repudiated bonds issued by North Carolina to aid railroads in the years 1S47, 1S55, and
1S66 were donated to South Dakota under a statute similar to ours.
years 1847, 1855, and 1866 were donated to South Dakota under a statute similar to ours. Suit
was brought upon them, and judgment obtained by South Dakota against North Carolina in
the Supreme Court of the United States in the year 1903. (192 U. S. 287, 24 Sup. Ct. 269, 48
L. Ed. 448.) Contrary to the contention made here, the supreme court held that South Dakota
could recover notwithstanding the bonds had been donated to that state by holders who were
seeking to collect other similar bonds, and that these holders were not necessary parties to the
suit. Whether the State of North Carolina is legally liable for the payment of these bonds is
not a question which can be properly determined in this proceeding. The fact that their market
value is far in excess of the amount necessary to give this court jurisdiction, that grave doubt
exists as to whether they may be enforced against North Carolina, and that the legislature has
provided for their acceptance, is sufficient for the purposes of this action. If the State of North
Carolina does not legally owe them, that will be a defense to be established in a suit if one is
brought by this state against North Carolina. If the State of North Carolina legally owes the
amount due upon them, there is nothing in the constitution which prevents this state from
recovering if it accepts the bonds. If, on the other hand, the State of North Carolina does not
legally owe the amount of the bonds, she would not have to pay them at the end of the suit. It
can hardly be said that in passing our statute in question the legislature did not understand
that it was for the purpose of accepting state bonds and enforcing their collection by litigation
when the language of the act so plainly indicates that it was drawn for this purpose. Unless by
future action the legislature deems, as a matter of policy or propriety, that it is better to amend
the act or provide that the bonds shall not be accepted or enforced, it is the duty of the chief
executive under the statute to accept them for the state. In one view the court is in the same
position as the executive. It is the duty of governor to enforce the law as he finds it, and for
the court to declare the law as it finds it, regardless of whether as citizens or legislators
they would favor the repeal of the statute.
and for the court to declare the law as it finds it, regardless of whether as citizens or
legislators they would favor the repeal of the statute.
The cases are not uniform as to when or the circumstances under which mandamus will
issue to control the action of the governor. That the writ will issue to compel the chief
executive to perform a ministerial act is in accordance with the best authorities, and has been
the law of this state for more than forty years, and since the issuance of the mandate of this
court under a decision written by Chief Justice Beatty directing Governor Blasdel to sign and
issue a patent for land. (State ex rel. Wall v. Blasdel, 4 Nev. 241.) It was said in the opinion
that if the law as passed is valid it must be enforced.
There was further recognition of the right to have the writ of mandate issued against the
chief executive, when the conditions warrant, in the case of Lieutenant-Governor Laughton v.
Governor Adams, 19 Nev. 370.
In the case of Waterman we discharged the petitioner from arrest under an executive order
issued by the governor of this state upon the requisition of the governor of Iowa because the
indictment did not state facts constituting a crime. (29 Nev. 288, 11 L. R. A. (N. S.) 424.)
In the case of Gray v. State, 72 Ind. 568, the court held that the writ of mandate will lie
against the governor to enforce the performance of a ministerial duty not resting in his
discretion, and that a ministerial act is one which a person performs under a given state of
facts and in a prescribed manner in obedience to legal authority, without regard to his own
judgment upon the propriety of the act being done.
In Middleton v. Low, 30 Cal. 597, it was held that when a ministerial duty is specially
devolved upon the governor by law, which the legislature might have conferred upon any
other state officer, the governor may be compelled to perform the same.
In Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, a writ was issued commanding the
governor to cause to be authenticated as a statute a bill in his possession which had
passed both houses of the legislature.
be authenticated as a statute a bill in his possession which had passed both houses of the
legislature.
In State v. Salmon P. Chase, 5 Ohio St. 528, it was held that although the governor, in the
exercise of the supreme executive power of the state, may, from the nature of his authority,
have a discretion which cannot be controlled by the courts, yet in regard to a ministerial act
which might have devolved upon any other officer of the state, and affecting any specific
private right, he may be made amenable to the compulsory mandate of the court by
mandamus.
In Chumasere v. Potts, 2 Mont. 243, a writ was issued commanding the governor, with
other officers, to canvass the vote.
In Magruder v. Swan, 25 Md. 175, it was held that the governor, like other officers, in the
discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be
denied to a suitor without acknowledging an authority higher than the law.
In State v. Martin, Governor, 38 Kan. 641, 17 Pac. 162, it was held that where purely
ministerial duties are by statute imposed upon the governor, and these duties are only such as
might be devolved upon any other officer or agent, their performance may be compelled by
mandamus or injunction. The court said: In the case of Marbury v. Madison, 1 Cranch. 163,
2 L. Ed. 60, Chief Justice Marshall uses the following language: The very essence of civil
liberty consists in the right of every individual to claim the protection of the laws, whenever
he receives an injury. One of the first duties of government is to afford that protection.' And
further on in the same case, page 166 (1 Cranch. 2 L. Ed. 60), after stating that the courts
cannot control executive discretion, the great chief justice uses the following language: But
when the legislature proceeds to impose on that officer (the secretary of state of the United
States) other duties; when he is directed peremptorily to perform certain acts; when the rights
of the individuals are dependent on the performance of those acts, he is, so far, the officer of
the law; is amendable to the laws for his conduct, and, cannot at his discretion sport away
the vested rights of others.' In the case of Tenn. R. Co. v.
those acts, he is, so far, the officer of the law; is amendable to the laws for his conduct, and,
cannot at his discretion sport away the vested rights of others.' In the case of Tenn. R. Co. v.
Moore, 36 Ala. 382, the following language is used: All this is but the result of the just and
wholesome principle that no public functionary, whatever his official rank, is above the law,
or will be permitted to violate its express command with impunity. While, therefore, it is true
that, in regard to many of the duties which belong to his office the governor has, from the
very nature of the authority, a discretion which the courts cannot control, yet, in reference to
mere ministerial duties imposed upon him by statute, which might have been devolved upon
another officer if the legislature had seen fit, and on the performance of which some specific
private right depends, he may be made amenable to the compulsory process of the proper
court by mandamus.' * * * Of course we should always presume that the governor intends to
do his duty, but he may be mistaken as to the law, or he may not be sufficiently advised as to
the facts upon which the applicant for relief founds his right thereto, and there is no way
prescribed by law by which issues can be made up and tried before the governor as issues are
made up and tried before the courts. The courts are created for the express purpose of trying
controversies, while the other departments and ministerial officers are not. It is also claimed
that if the courts may control the ministerial acts of the governor, and may also determine
which are ministerial acts and which are not, then that the courts may determine everything,
and obtain complete control over the entire executive department, including the governor. It
must be remembered, however, that all controversies must be determined somewhere, and
that the courts are the only tribunals created by the constitution and the laws for the special
purpose of construing the constitution and the laws, and of determining controversies
between parties, and the power to determine whether a given power is a truly ministerial
power, or not, and whether an applicant for relief in any particular case has a right to such
relief under the law creating such power, or not, comes particularly within the province of
the courts.
applicant for relief in any particular case has a right to such relief under the law creating such
power, or not, comes particularly within the province of the courts. And a determination in
such a case is purely judicial, and is one of the things for which courts were created, and they
could not refuse their aid in such cases without so far wholly abandoning their duties and
abdicating their jurisdiction.
The United States Supreme Court, speaking through Chief Justice Marshall, in the case of
Osborn v. United States Bank, 22 U. S. 866, 6 L. Ed. 204, said: Judicial power, as
contradistinguished from the power of the laws, has no existence. Courts are the mere
instruments of the law, and can will nothing. When they are said to exercise a discretion, it is
a mere legal discretion, a discretion to be exercised in discerning the course prescribed by
law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never
exercised for the purpose of giving effect to the will of the judge; always for the purpose of
giving effect to the will of the legislature; or, in other words, to the will of the law.
In State v. Cummings, 36 Mo. 263, 278, it is said: It is not for the judiciary to inquire
whether laws violate the general principles of liberty or natural justice, or whether they are
wise or expedient or not. They can only declare whether they are repugnant to constitutional
provisions and limitations. It would be a violation of well-established and safe principles for
courts to resort to any other test. There is no higher law by which we can be governed. An
attempt by judicial construction to obstruct a law, or a failure to enforce it, would be
monstrous usurpation. We cannot make or repeal a law; we are not intrusted with any such
power. If it is wrong, unjust, or oppressive, an appeal must be made to the people in their
political capacity at the polls to apply the remedy. We will not attempt to exercise judicial
legislation. We can scarcely conceive of anything that would be a compensation for
introducing into our jurisprudence such a pernicious doctrine.
our jurisprudence such a pernicious doctrine. The most odious and dangerous of all laws
would be those depending upon the discretion of judges.
The petitioner has filed a special reply brief, citing extracts from numerous authorities
holding that the courts have discretion as to the issuing of the writ of mandate in aid of
private rights, but no such discretion when it is invoked in matters of public right. Among
these authorities are: Tapping on Mandamus, 54, 56, 287, 288; 2 Dillon on Municipal
Corporations, sec. 695; New Haven Co. v. State, 44 Conn. 376; State v. Doyle, 40 Wis. 220;
Spelling on Injunctions and Extraordinary Remedies, sec. 22; Savannah Canal Co. v.
Shuman, 91 Ga. 402, 17 S. E. 937, 44 Am. St. Rep. 43; 19 Am. & Eng. Ency. Law, 753. If the
court has any discretion in a case like this one, it ought not to exercise it by denying the writ,
which would result in a judicial repeal, the usurpation of the powers of the legislature, and a
dangerous precedent. If the plain terms of this act may be thus set aside, no statute would be
certain, no litigant or counsel would be sure of the law until finally announced according to
the varying moods of the court, and no person would be secure in his rights. In Russia, the
czar at pleasure sets aside the acts of the duma, passed by the people's delegates. The highest
officers in this government, as well as kings and emperors in the leading constitutional
monarchies of the world, are without power to set aside the laws of the country. The Young
Turks deposed a sultan for his failure to observe the requirements of the constitution. For the
purpose of giving soundness and stability to our laws, the people have wisely provided in the
organic act of the state that bills, whether for proposed statutes or repeals, must pass both
branches of the legislature, and have given the governor the power to veto or approve before
they become effective. If this and other statutes, when their language and meaning are clear,
could be set aside or ignored at the discretion or changing will of succeeding governors or
courts, the laws might become nearly as uncertain and unstable as the clouds that float
above our mountain peaks.
unstable as the clouds that float above our mountain peaks. It cannot be implied that the
governor has power to set aside the laws when he is specially enjoined by the constitution to
enforce them.
For us to hold contrary to the plain meaning, that the constitutional provision that the
governor shall faithfully execute the laws allows him to set them aside at will, would be a
misconception, sarcasm, and travesty upon the organic act upon which the state stands.
If the members of the legislature agree with the views of the lieutenant and acting
governor, they, and not he nor the courts, have the power to repeal or amend the law for the
reasons he advances.
We cannot assume that the new executive, who will take office on the first of the year, will
fail to follow the law as construed by the court, or refuse to obey the statute if it is not
repealed or amended, or if the requirement of the act remain unabrogated.
The writ will issue as demanded in the petition; but in order to give the legislature, which
is about to convene, and which is the only branch of our government having power to change
a statute, an opportunity to consider the objections which have been made to the acceptance
of the bonds, and to repeal or amend the act if it desires, the service and execution of the
order will be stayed until the close of the sixty-day session of that body and the further order
of the court.
Sweeney, J., concurring:
I concur in the judgment of Justice Talbot. I served in the legislature of Nevada in 1901
which enacted this measure, as a member of the assembly from Ormsby County. At the
request of the then governor of Nevada, Governor R. Sadler, I introduced the bill in question
by request, which the legislative records disclose, authorizing the state to accept and collect
grants, devises, bequests, donations, and assignments. The bill passed both houses of the
legislature unanimously, and was signed by the governor. This statute is the only one of its
nature in our statute books which places this state in a position to officially accept gifts,
grants, devises, bequests, donations, and assignments.
its nature in our statute books which places this state in a position to officially accept gifts,
grants, devises, bequests, donations, and assignments. Under this act, and by virtue of its
terms, the officer designated in this act to officially receive, so that the title might become
vested in the state, accepted, and the state received, from Clarence H. Mackay the gift of
$200,000 and other monetary donations for our state university.
These North Carolina bonds, involved in the present case, are the second gift offered to the
state since the passage of this act about ten years ago. At the time of the passage of this act
before the legislature, no question of policy or expediency as to the acceptance of state bonds,
such as are involved in the present case, was debated or considered, and knowing personally
that if such a proposal of bonds was made as is involved in the present proposed gift that I
would not have voted as a legislator for this bill, unless amended so as to avoid such a
necessity of enforcing the collection of bonds of the character offered in the present case, by
reason of conditions existing at the time of their issuance and the alleged questionable
original indebtedness they were issued to redeem, I would be pleased to see the incoming
legislature amend the law to cover this situation so as to avoid this necessity.
As a judge of this tribunal, however, the law, as enacted by the legislature, until amended
or repealed by the legislative department, must take its course, any personal sentiment to the
contrary notwithstanding. Under the constitution of the United States, which is the supreme
law of the land, and the constitution of Nevada, which we are obligated to obey under oath,
we must order enforced any valid law irrespective of sentiment, and against any executive
officer enjoined by law to a performance of a ministerial duty if he fails to execute the law. In
this great country of ours, as it should be, under a constitution which was ordained to make
all men equal under the law, no man is above the law whether he be the President of the
United States or its lowliest citizenmillionaire or pauper; and while in the British and
other governments that have not as yet advance to a republic like ours the people are
satisfied with the doctrine that prevails that the king or ruling head is above the law and
can do no wrong, yet in this county every American citizen is legally equal before the law,
and it is the plain duty of all officers to obey the law which they by oath promise to do,
and a writ of mandate should issue to enforce such performance.
millionaire or pauper; and while in the British and other governments that have not as yet
advanced to a republic like ours the people are satisfied with the doctrine that prevails that the
king or ruling head is above the law and can do no wrong, yet in this county every American
citizen is legally equal before the law, and it is the plain duty of all officers to obey the law
which they by oath promise to do, and a writ of mandate should issue to enforce such
performance.
I especially desire to emphasize my approval and concurrence in the opinion of Justice
Talbot to the effect that mandamus lies to enforce the nonperformance of a legal duty
ministerially enjoined by law on the acting governor or any other executive officer, in view of
the position taken so decidedly by the attorneys for the acting governor that mandamus will
not lie against a chief executive of the state, and to check as far as lies in my power the
constant and widespread attempt throughout the land to usurp the powers, which the framers
of our constitution especially delegated and vested separately in the three coordinate branches
of our government.
The present case typifies to a nicety the position I desire impressed, and the evil I desire
checked, in the tendency of one department of our government to usurp the powers of the
other, and which are expressly delegated by the framers of our government to the three
coordinate branches, and discloses how courts and judges and executive officers, swayed
consciously or unconsciously by sentiment, may usurp or encroach on the powers vested in
other departments, and violate the spirit of our constitution, and which, if unchecked, will
ultimately nullify the grandest scheme of government ever proposed by man.
The act in question was passed by the legislature, which has the sole power, subject to the
veto power of the governor, to pass the measure. The act in plain terms states that the state
shall accept state bonds, devises, bequests, and assignments. The question of whether or not
the legislature intended to place the state in its present position of enforcing the
collection of state bonds of the character given them was not considered or debated by
the legislature; but the fact remains that the act states in plain, unambiguous, mandatory
terms "that whenever any grant, devise, bequest, donation or gift or assignment of
money, bonds or choses in action or of any property, real or personal, shall be made to
this state, the governor is hereby directed to receive and accept the same, so that the
right and title to the same shall pass to the state.
whether or not the legislature intended to place the state in its present position of enforcing
the collection of state bonds of the character given them was not considered or debated by the
legislature; but the fact remains that the act states in plain, unambiguous, mandatory terms
that whenever any grant, devise, bequest, donation or gift or assignment of money, bonds or
choses in action or of any property, real or personal, shall be made to this state, the governor
is hereby directed to receive and accept the same, so that the right and title to the same shall
pass to the state. * * *
While personally we might wish that the act reposed a discretion in the governor for the
purpose of refusing to accept the bonds proffered in the present case, yet, as judges
interpreting the law, we have no alternative legally than to declare the law as we find it.
Personally, I believe the state and its business should be conducted on the same business
plane as that of any private citizen, and in so far as the acceptance of gifts is concerned, the
state ought to be in the same position to accept or decline a gift, when the state's prestige or
standing might be injured in so accepting, and where it is necessary to sue to enforce a
voluntary gift. It should also be in a position to consider any strings attached to the proposed
gift, from whom, and the character and nature of the gift; but these are matters to be remedied
solely by the legislative department, and not within the province of the executive or judicial
departments.
As to the discretion reposed in this court to refuse to issue the writ of mandate, because of
the alleged want of value in the bonds, and on the principle that courts will not deal with
frivolous or valueless things, we are legally precluded from so acting, because the bonds on
their face show a value of over $401,000, and a market value of over $100,000, and the
Supreme Court of the United States and other courts, even including the Supreme Courts of
North Carolina and Nevada, have held that bonds of a sovereign state are presumed to be
valid until otherwise shown, and the statute of limitations does not run against the right of a
sovereign state to sue another sovereign state on bonds regularly passed by the
legislature of a sovereign state, even though a legislature might later try to repudiate
them.
tions does not run against the right of a sovereign state to sue another sovereign state on
bonds regularly passed by the legislature of a sovereign state, even though a legislature might
later try to repudiate them. This latter point was directly passed on in a case which went to the
United States Supreme Court, where the bonds in question were issued by Lincoln County,
Nevada, and attempted to be repudiated by Lincoln County because of the fraudulent or
extravagant nature of their incurrence. These Lincoln County bonds at the time of their
issuance in 1882 only amounted to $180,000, and in the year 1900 the interest had
accumulated to over $420,000; that the bonded indebtedness of Lincoln County on these
same bonds was in excess of $600,000; yet the Supreme Court of the United States set aside
the attempted repudiation of Lincoln County, and held that the statute of limitations did not
run against the holders of the bonds because of the failure of Lincoln County to keep paid the
accrued interest thereon. These Lincoln County bonds, or the greater portion of them, were
later bought by the railroad companies running through Lincoln County for their own
protection, and later compromised at about 50 cents on the dollar with 4 per cent interest, but
the fact remains that there was found to be no legal way whereby Lincoln County could
repudiate their payment.
The law in question is conceded by all to be constitutional, and it is the legal duty of the
executive officer, designated in the act, to perform the duty enjoined on him as ordained by
the legislative department, and it is our judicial duty to declare the law, and order its
enforcement. If an executive officer can set aside one valid law, he can set aside any other
valid law and place himself above the law.
To deny the writ we would have to usurp a power and right vested solely in the legislative
department, and take a contrary view to the United States Supreme Court and the Supreme
Courts of Nevada and North Carolina which have passed practically upon every point
presented in this case adversely to the respondent.
which have passed practically upon every point presented in this case adversely to the
respondent.
Under the judgment and power vested in this court by the constitution, the writ must issue
in pursuance to the law, but its execution will be temporarily stayed for a period of time to
extend until the close of the legislature, which is about to convene, so that an opportunity may
be had to consider whether the legislature is desirous of amending the law as above indicated
to meet the objections interposed to the acceptance of the proposed bonds or to repeal the act.
If the language remains unchanged, the writ, which will now issue, will become operative;
in the interim, for the reasons above assigned, the execution of the writ will be temporarily
suspended, and until the further order of this court.
Norcross, C. J., dissenting:
I am unable to concur in the conclusions reached by my learned associates in this
proceeding. I think the writ should be denied.
Conceding that the act of 1901 is mandatory, and that the governor has no discretion to
refuse any gifts, bequests, assignments, etc., mentioned in the statute, nevertheless, I think it
is clear from the language of the statute that such duty is only imposed where the grant,
devise, bequest, donation, gift, or assignment is as to a thing of value. There is no allegation
in the petition that the 145 bonds of the State of North Carolina tendered to the governor for
the benefit of the State of Nevada are of any value whatever. The respondent has alleged in
his answer, as a reason for his refusal, that the said bonds are of no value whatever; that they
were fraudulently issued, and have been repudiated by the state issuing the same. These
bonds, upon their face, would naturally arouse some suspicion as to whether they were of
value. They were all more than ten years past due when offered. The face value of the bonds
was $1,000 each, a total of $145,000, upon which unpaid interest coupons were attached
amounting to over $256,000.
est coupons were attached amounting to over $256,000. Upon most, if not all of these bonds,
no interest has been paid for over forty years. They were all issued in pursuance of acts of the
legislature of the State of North Carolina, passed during the years 1868 and 1869. In so far as
the State of North Carolina had power to do, it had repudiated these bonds. The answer of the
respondent in this case contains the following allegation: That the said bonds referred to in
the petition of relator, and so authorized and issued as aforesaid, were in true legal effect
declared invalid and uncollectable by a constitutional amendment adopted by the people of
the State of North Carolina in 1880, which said constitutional amendment is in words and
figures following, to wit: The state shall never assume or pay or authorize the collection of
any debt or obligation express or implied, incurred in aid of insurrection or rebellion against
the United States or any claim for the loss or emancipation of any slave; nor shall the general
assembly assume or pay or authorize the collection of any tax to pay, either directly or
indirectly, express or implied, any debt or bond incurred or issued by the authority of the
convention of the year 1868, nor any debt or bond incurred or issued by the legislature of the
year 1868 either at its special session of the year 1868 or at its regular sessions of the years
1868-1869 and 1869-1870, except the bonds issued to fund the interest on the old debt of the
state, unless the proposing to pay the same shall have first been submitted to the people and
by them ratified by a vote of a majority of all the qualified voters of the state at a regular
election held for that purpose.'
The bonds in question tendered to the State of Nevada are apparently in a very different
situation than the bonds given to the State of South Dakota under the provisions of a similar
act to that involved in this action, and which were sued upon by the State of South Dakota in
the case of South Dakota v. North Carolina, 192 U. S. 287, 24 Sup. Ct. 269, 48 L. Ed. 448.
The bonds given to the State of South Dakota were never directly repudiated by the State of
North Carolina, and were secured by stock of the North Carolina Railroad Company.
ated by the State of North Carolina, and were secured by stock of the North Carolina Railroad
Company. The judgment in that case went no further than to say that in the event said bonds
were not paid by the first Monday of January, 1905, that an order of sale be issued to the
marshal of the supreme court directing him to sell at public auction all the interest of the State
of North Carolina in and to the said shares of the capital stock of the North Carolina Railroad
Company held as security for the payment of said bonds. Any further relief was left for future
consideration upon application to the court.
It does not appear that the bonds in question in this proceeding are secured by any
mortgage or other collateral security as in the North Dakota case. Even if we are to indulge in
the presumption that these bonds were issued in pursuance of law, and were untainted by any
fraudulent proceeding, nevertheless a grave question is presented as to the means of enforcing
any judgment which might possibly be obtained in the Supreme Court of the United States.
During the progress of the argument in this case one of the counsel for the petitioner stated
that he believed these bonds, in their present form, had some market value, and was of the
opinion that it was about 25 cents on the dollar of the par value of the bonds. I do not think
that this statement should be considered as establishing that the bonds have any value
whatever in the face of a failure to make any allegation in the petition that they were of any
value and an absolute denial that they were of value made by the answer. It is conceded that
in the hands of individuals they are absolutely uncollectible. When the property of the state,
the most that can be said is that the state might institute a suit for recovery upon these bonds
against the State of North Carolina in the Supreme Court of the United States. In such action
the State of North Carolina could, if such were the fact, show that the bonds were never
legally issued or were fraudulently issued. If these questions should be resolved in favor of
the bonds, there would then remain the question whether the provision of the constitution
of the State of North Carolina was violative of the provisions of the federal constitution,
and, if this question was also determined in favor of the State of Nevada as holder of the
bonds, there would still be presented the very grave question of enforcing the judgment
against the State of North Carolina, should that state not voluntarily make provisions for
the payment.
then remain the question whether the provision of the constitution of the State of North
Carolina was violative of the provisions of the federal constitution, and, if this question was
also determined in favor of the State of Nevada as holder of the bonds, there would still be
presented the very grave question of enforcing the judgment against the State of North
Carolina, should that state not voluntarily make provisions for the payment. In this
proceeding, we ought not, in my judgment, to indulge the presumption that the State of North
Carolina, without valid and sufficient reason therefor, embodied in its organic law a
repudiation of these bonds. For these reasons, I am of the opinion that this court is amply
justified in holding that there is a failure upon the part of the petitioner to make any showing
that the bonds in question are of any value. The statute of 1901, quoted in the prevailing
opinion as before stated, is only intended to apply to some property or thing of value. It will
hardly be contended, I think, that the legislature, in passing the act of 1901, contemplated that
the governor should be required to accept bonds of the character involved in this proceeding.
This court, to refuse the writ in this case, would not have to go any further, in my
judgment, than it went in the case of State v. Beck, 25 Nev. 113. In that case this court, by
Bonnifield, C. J., said: Whatever may have been the legislative object in passing the act, we
presume it was a good one, but we cannot indulge such violent presumption as that the object
was to compel a county to pay a claim which has been finally adjudicated by the courts to be
fraudulent on the part of the claimant. Mandamus should not be granted to compel a
technical compliance with the strict letter of the law, in disregard of its spirit.' (Wiedwald v.
Dodson, 95 Cal. 450, 30 Pac. 580; State v. Board Comrs. Phillips Co., 26 Kan. 419; High,
Extra. Rem., 3d. ed., sec. 9.) The writ is denied.
In the case of People v. Board of Assessors, 137 N. Y. 201, 33 N. E. 145, the court said:
The writ of mandamus is not always demandable as an absolute right, and whether it
shall be granted or not frequently rests in the discretion of the court.
damus is not always demandable as an absolute right, and whether it shall be granted or not
frequently rests in the discretion of the court. (State ex rel. v. Comrs. Phillips Co., 26 Kan.
419; People v. Hatch, 33 Ill. 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N.
Y. 360, 29 N. E. 345, 14 L. R. A. 646.) The writ will be granted to prevent a failure of justice,
but never to promote manifest injustice. It is a remedial process, and may be issued to remedy
a wrong, not to promote one, to compel the discharge of a duty which ought to be performed,
but not to compel the performance of an act which will work a public and private mischief, or
to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a
palpable fraud. See, also, 26 Cyc. 143-155.
Without considering any of the other questions argued in this proceeding, I am of the
opinion that the failure to allege in the petition, or otherwise establish, that the bonds offered
were of any value is conclusive of this case. The burden was on the petitioner to allege, and,
if denied, to establish upon the hearing, that the bonds were of some substantial value. The
petition only alleged that certain bonds were tendered to the respondent as acting governor,
for the benefit of the state, without any allegation whatever that they were of any value. Upon
their face they appeared to be long past due, and as having never been acknowledged as being
valid subsequent to their issue by the payment of interest thereon.
The refusal of the respondent to receive the bonds in question was based, among other
grounds, upon the ground that they were valueless. If the respondent was correct in his
conclusions in this regard, he was, in my judgment, acting within the law in refusing to accept
the bonds. It was incumbent upon the petitioner in this proceeding to allege and prove that the
bonds tendered to the governor for the state were of some material value, and, there being a
failure to make such an allegation, the petition did not state facts sufficient to entitle the
petitioner to any relief. The mere assertion by counsel for petitioner that in his judgment the
bonds did possess some value ought not to be considered in the absence of an agreement
or stipulation by the respondent or his counsel that the assertion of petitioner's counsel
was a fact to be considered in the case.
sel for petitioner that in his judgment the bonds did possess some value ought not to be
considered in the absence of an agreement or stipulation by the respondent or his counsel that
the assertion of petitioner's counsel was a fact to be considered in the case.
From the entire case, and particularly upon the ground of failure to allege or prove value in
the bonds tendered, it is my judgment that the writ should be denied.
____________
33 Nev. 581, 581 (1911)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1911
____________
33 Nev. 581, 581 (1911) In Re Schnitzer
[No. 1901]
In the Matter of the Application for the
Disbarment of WILLIAM H. SCHNITZER.
1. Attorney and ClientSuspension and DisbarmentUnprofessional ConductMisconduct.
For an attorney to publish and advertise a pamphlet, the purpose of which is to attract nonresidents to
the state to apply to its courts for divorce, through his agency as an attorney, that he may profit
financially thereby, is misconduct, within Comp. Laws, 2625, providing for removal or suspension of
attorneys for misconduct.
2. Attorney and ClientUnprofessional ConductPunishment.
An attorney who published and advertised a pamphlet to attract nonresidents to the state to apply for
divorce through him will be shown leniency, and suspended for only eight months, and till the further
order of the court; he having discontinued the advertising when his attention was called to his methods
being condemned by the bar association of the city, and his being the first case of the character brought to
the attention of the court.
Original proceeding. In the matter of the application for the disbarment of William H.
Schnitzer as an attorney at law. Respondent suspended.
Statement of Facts
The respondent, William H. Schnitzer, was admitted to practice in all the courts of this
state upon the 18th day of January, 1907, upon motion based upon a license to practice in
the courts of the State of New York and upon a showing of good moral character.
of January, 1907, upon motion based upon a license to practice in the courts of the State of
New York and upon a showing of good moral character. Respondent filed a demurrer to the
petition filed by the Reno Bar Association, praying for his disbarment, which was overruled,
whereupon he interposed an answer. The main facts upon which the petition is based are not
denied, but certain allegations in the petition, based upon such facts, are denied.
The following are the principal facts upon which the proceeding is based:
Prior to the institution of these proceedings, the respondent caused to be published in the
programs of the Orpheum Theater of San Francisco advertisements reading as follows:
DIVORCE LAWS OF NEVADA.
Have you domestic troubles,
Are you seeking DIVORCE
Do you want quick and reliable action?
Send for my booklet
Contains Complete Information FREE
Shortest Residence
Address
Counsellor, P. O. Box 263, Reno, Nevada
Correspondence Strictly Confidential.
DIVORCE LAWS OF NEVADA.
Send for my booklet
Contains information FREE
Address:
Counsellor, P. O. Box 263, Reno, Nevada.
(W. Shafer)
DIVORCE LAWS OF NEVADA
Have you Domestic Troubles
Are you seeking DIVORCE
Do you want quick and reliable action?
SEND FOR MY BOOKLET
Contains Complete Information FREE
Shortest Residence
Address
W. H. SCHNITZER
Counsellor, P. O. Box 263, Reno, Nevada,
Upon certain days during the month of April 1909, the respondent caused to be inserted in
the Brooklyn Daily Eagle of Brooklyn, N. Y., and in the Washington Post of Washington, D.
C., newspapers of large circulation, the following advertisement: Divorce Laws of Nevada.
Complete Information Mailed Free by Attorney William K. Shafer, Reno, Nevada. The W.
Shafer and the William K. Shafer mentioned in the foregoing advertisements was intended
for a certain William B. Shafer, who for a time was in the office of the respondent, but who
was not an attorney of this court.
In January, 1909, the respondent published a twenty-four-page pamphlet for general
distribution, the title-page of which reads:
DIVORCE PRACTICE AND PROCEDURE.
Under the Laws of the State
of Nevada, with Notes
and Decisions.
Compiled and Digested by
WILLIAM H. SCHNITZER
of the Nevada Bar.
Published at Reno, Nevada,
January, 1909.
The preface to the pamphlet reads:
Preface.
The purpose of this treatise is to briefly, tersely, concisely, and clearly present to the
reader the divorce practice and procedure under the laws of the State of Nevada.
While the laws of the eastern and middle west States generally, contain some provision
for the dissolution of the marriage tie, it is obvious to the reader that in cases where extreme
cruelty, desertion and neglect to provide form the basis of the grievance, the law in such
States offers no substantial relief to the aggrieved party, because the requirements of proof,
duration of offense, corroboration of plaintiff, and procedure under court rules are so exacting
and irksome, that the desired relief sought by applicant is rendered impossible of attainment.
Summing up the situation, as it exists in the eastern States, respecting the domestic
relation law, the client when consulting local counsel, is almost invariably advised that
upon the facts submitted he or she is without remedy.
States, respecting the domestic relation law, the client when consulting local counsel, is
almost invariably advised that upon the facts submitted he or she is without remedy.
Here in Nevada, the applicant, without deception or fraud, upon almost any charge, from
which lack of harmonious relations may be reasonably inferred, may apply to our courts and
secure prompt results, by decree of absolute divorce, valid and binding in law. The next few
pages will contain the statutes of Nevada applicable together with a brief interpretation,
supported by Supreme Court decisions, clearly indicating the superior advantages afforded
applicant under the law and procedure of Nevada.
William H. Schnitzer.
The pamphlet is divided into subjects under the following headlines: Divorce Statutes.
Causes. Cruelty as Interpreted by Judicial Decisions. Residence. Summons and
Service; How made upon Defendant. Service of Non-Resident by Publication.
Appearance of Defendant. Testimony and Hearings Before the Court. Alimony and
Custody and Support of Children. Decree of Divorce Shall Provide. The City of Reno,
Nevada. Summary. Your Selection of Lawyer. My References.
Without setting forth a copy of the pamphlet in full, the following extracts will serve to
show its general import:
Residence.
Under the provisions of section 22 of the Marriage and Divorce Act, the plaintiff must
reside in the State for a period of at least six months. This is not construed to mean that in
order to fully comply with the statute, party must remain here continuously for said period.
So, if a party comes to Nevada, and in good faith takes up a residence, party may leave the
State at any time after establishing residence, may go and travel when and wherever party
chooses and may return to the State whenever inclination prompts, and yet, such temporary
absence would not in anywise affect the legality of the residence established, but party
would be entitled, under the law, to bring suit any time after the lapse of six months from
the date residence was originally established, notwithstanding party's absence from the
State during said period.
residence established, but party would be entitled, under the law, to bring suit any time after
the lapse of six months from the date residence was originally established, notwithstanding
party's absence from the State during said period.
Upon a careful reading of section 22 (page 5) the reader will note several exceptions to
the rule requiring a residence in the State of six months, viz.: In any case where the defendant
may be found, or may reside within the State. The residence of the plaintiff is immaterial, and
it is not necessary to prove any period of residence on the part of plaintiff; so, in cases where
defendant is willing to facilitate the plaintiff, and will come to Nevada and remain here long
enough to enable plaintiff to procure the service of the summons on defendant personally,
within the State, then in that case, suit may be filed at once regardless of the duration of
plaintiff's residence here, and under such circumstances the court will acquire complete
jurisdiction.
Appearance of Defendant.
A defendant shall be deemed to appear in an action when he answers, demurs or gives the
plaintiff or her attorneys written notice of his appearance, or when an attorney gives notice of
appearance for him.
Compiled Laws of Nevada, section 3594.
A voluntary appearance of defendant shall be equivalent to personal service of summons
upon him.
Compiled Laws of Nevada, section 3130.
In many cases the voluntary appearance of defendant may be procured, thereby saving the
time and avoiding the tedious delays incident to service of process and proofs of service. To
that end I am in position to recommend to my clients, the names of reputable attorneys in the
State, who, upon written instructions from defendant will enter an appearance in his or her
behalf, which practice is frequently resorted to for the purpose of bringing the main issue
speedily before the court.
Testimony and Hearings before the Court.
After the completion of the service of the Summons upon the defendant as herein set
forth, and his time to appear for answer has expired, the plaintiff may at once proceed
with hearing before the court.
upon the defendant as herein set forth, and his time to appear for answer has expired, the
plaintiff may at once proceed with hearing before the court. Our courts are always in session
to hear testimony in uncontested divorce proceedings, and the hearing can be set for any day,
on motion of counsel. In all such cases where there is no real contest, the oral testimony of
plaintiff, without corroborative testimony, (usually required in other States) before the Judge,
in private chambers, in support of the allegations of the Complaint is deemed sufficient.
This rule of practice is in line with the provisions of section 26 of the Domestic Relation
Act, Laws of Nevada.
The City of Reno, Nevada.
Important questions that will appeal to many, before deciding to leave their present
domicile, and coming to this Western country are: What sort of a place is Nevada with
respect to climate, comfort and convenience of life and opportunity of engaging in business,
or securing lucrative employment?
To fully cover this ground and to do justice to the grandeur and industrial enterprises of
this great-greatest-mineral State, would alone require a volume. I will only reply briefly and
tersely to these interrogatories, and for further and more complete information on the subject
will be pleased to reply by letter to special inquiry.
Reno, the commercial metropolis of Nevada, is beautifully situated on the Truckee River,
at an elevation of 4495 feet above sea level, and is on the main line of the Southern Pacific
Railroad, overlooking the majestic Sierra Nevada Mountains, and is just 26 miles easterly
from the borders of California; just two hours ride from Lake Tahoe, the most beautiful and
picturesque lake in America, and the mecca of society and fashion; the climate is dry, healthy
and invigorating; is especially favorable to the treatment of bronchial and pulmonary
troubles; there are no sudden extremes of heat and cold.
Reno is the seat of the State University, has public library, seven churches of all religious
denominations, five banks with combined deposits of over six million dollars, three
theatres, four modern up-to-date fire-proof hotels, six and half miles of street railway,
operated through the leading streets, beautiful public and office buildings, and
magnificent homes.
lars, three theatres, four modern up-to-date fire-proof hotels, six and half miles of street
railway, operated through the leading streets, beautiful public and office buildings, and
magnificent homes.
The cost of living in Nevada, all things being considered, is as low as any part of the
country, and employment in all branches of labor is readily obtained at good wages. Steady
and industrious mechanics should experience no difficulty in securing employment at a high
rate of wages.
Summary.
Summarizing all that has been herein submitted to the reader, and as sound reasons why
the greatest advantages and facilities are afforded under the law and practice of Nevada, to
those seeking speedy release from the marital relations we submit as follows:
1. The shortest period of residence, viz. six months.
2. In special instances, when defendant may be found in the State, suit may be filed at
once without a delay of six months.
3. The great number of grounds, viz. seven distinct and separate grounds.
4. The simplest and least difficult grounds to prove: (Reading carefully citations under
subdivision of Cruelty').
5. No delays after time for defendant to answer has expired, our courts being always in
session to hear testimony in uncontested cases.
6. Under the charge of Extreme Cruelty plaintiff may allege and prove any facts or acts
producing mental anguish and threatening health.
7. Under the practice of our courts, where no real contest exists, parties are not subjected
to embarrassing cross examinations.
8. In all uncontested cases parties may, on application of counsel, have hearings
conducted in private chambers of the Judge and thereby avoid embarrassing publicity and
exposure to the public.
9. Unlike the practice and rule in most states, the sole testimony of plaintiff, without
corroborative proofs, is sufficient to establish the allegations of the complaint in all
undefended actions.
sole testimony of plaintiff, without corroborative proofs, is sufficient to establish the
allegations of the complaint in all undefended actions.
10. A decree absolute is granted immediately, after proofs are submitted, so that party
receiving same may marry again at once, and is not obliged to wait for any period thereafter
as is the law in many States.
11. Here in Nevada, we have up-to-date Cities where one may enjoy all the comforts,
conveniences and luxuries of an eastern metropolis, and may indulge in little journeys into
the adjoining State, California, which is justly styled the land of Sunshine and Flowers.'
Your Selection of a Lawyer.
Lastly, but most importantly, is the question for you to determine: Who shall I select as
my attorney to conduct my proceedings? Naturally you want the best, the most skillful and
reliable talent obtainable, one in whose judgment and advice you will place implicit
confidence before you incur the expense and time in traveling to this State to establish your
new residence.
It may sound somewhat boastful to shout my own praise, but under the circumstances it is
necessary that I tell you frankly who I am, and how I stand in this community.
The writer has had twenty years experience in the actual practice of the law at the New
York and Nevada Bar. I pride myself in being able to state, with perfect frankness and candor,
that during the three years of active practice at the Nevada bar I have earned and won the
friendship, respect and esteem of my colleagues at the bar and the Judges on the Bench.
I have made it a rule of my conduct to always make my word good and deal on the square
with everybody. I am a member of the executive committee of the State democratic
organization.
A sense of modesty impels the writer to refrain from further self-aggrandizement; but
with the consciousness of my own record in this Commonwealth, and with a full realization
that those who know me will be willing to say a kind word for me and will testify to my
good reputation and high standing, I unhesitatingly submit to the inquirer a few of my
references."
a kind word for me and will testify to my good reputation and high standing, I unhesitatingly
submit to the inquirer a few of my references.
Under the heading of My References, the respondent appends the names of judges, a
United States senator, the acting governor of the state, attorneys, editors, and prominent
business men of the state, at least one of whom is shown to have repudiated the use of his
name in such manner.
The concluding page of the pamphlet reads as follows:
WILLIAM H. SCHNITZER,
Attorney and Counsellor-at-Law,
Rooms 10, 11, 12 and 13,
Gazette Building,
Reno, Nevada.
Branch Offices:
Goldfield, Nevada,
Carson City, Nevada,
Tonopah, Nevada,
Rawhide, Nevada.
Commercial and Mining Practice and Litigation in all
State and Federal Courts.
Depositions carefully taken. Correspondence in Refer-
ence to Financial Standing of Parties will
receive prompt attention.
For references see page 18.
Twenty years active experience in commercial litigation
and practice.
Sylvester S. Downer, Chas. R. Lewers, James T. Boyd, W. A. Massey, and Cole L.
Harwood, for Petitioner.
Platt & Gibbons, for Respondent.
Per Curiam:
That the purpose of the pamphlet, published by respondent, was to attract persons, residing
outside the State of Nevada, and citizens of other states and counties, to come to this state for
the ultimate purpose of applying to its courts for divorce, through the agency of the
respondent as an attorney, in order that he might profit financially thereby, is too manifest to
require other than the bare statement.
statement. That the object of the advertisements quoted was to extend the circulation of the
pamphlet is equally obvious. This method of advertising is highly reprehensible and contrary
to the ethics of the legal profession, as universally recognized. Even if statements contained
in the pamphlet were not open to question, either as to fact or law, nevertheless, the purpose
for which the pamphlet was issued and the advertisements published merits a severe rebuke.
The pamphlet, however, contains statements that, to say the least, are misleading. It is not
true that the laws of this state permit a divorce upon almost any charge for which lack of
harmonious relations may be reasonably inferred. It is not true that the testimony of the
plaintiff in a divorce case whether or not there be a real contest can be heard before the
judge in private chambers. The testimony in divorce proceedings must be before the court.
An action for the dissolution of the bonds of matrimony, whether contested or not, is not a
proceeding that a judge can hear in chambers. Even if we were to accept the explanation of
respondent that he only intended to convey the information that in uncontested cases the court
could hold sessions in the private chambers of the judge, nevertheless, that would not be the
meaning which the layman would naturally place upon the language used.
Petitioners have attacked the correctness of a number of statements contained in
respondent's pamphlet as to the law of this state upon the subject of divorce; but we do not
deem it essential in this proceeding to determine these questions. It would be sufficient to rest
our condemnation of the conduct of the respondent upon the pamphlet and advertisements
upon a bare recital of the same without comment. They speak for themselves and are
unworthy the high calling that respondent has followed, as he says, for twenty years. The
courts of Nevada were established and are maintained for the protection of her citizens and
citizens of other states and countries having dealings with the citizens of this state.
An attorney who, for purposes of personal gain, seeks to make the courts of this state a
clearing house for the domestic woes, real or imaginary, of the country at large, is certainly
guilty of misconduct. (Comp. Laws, 2625; People v. MacCabe, 18 Colo. 186, 32 Pac. 280, 19
L. R. A. 231, 36 Am. St. Rep. 270; People v. Taylor, 32 Colo. 250, 75 Pac. 914; Ingersoll v.
Coal Creek Coal Co., 117 Tenn. 263, 98 S. W. 178, 9 L. R. A. (N. S.) 282, 295, 119 Am. St.
Rep. 1003; People v. Goodrich, 79 Ill. 148; 4 Cyc. 911.)
In People v. MacCabe, supra, the Supreme Court of Colorado, by Mr. Justice Elliott, said:
The ethics of the legal profession forbid that an attorney should advertise his talents or his
skill as a shopkeeper advertises his wares. An attorney may properly accept a retainer for the
prosecution or defense of an action for divorce when convinced that his client has a good
cause. But for any one to invite or encourage such litigation is most reprehensible. The
marriage relation is too sacred; it affects too deeply the happiness of the family; it concerns
too intimately the welfare of society; it lies too near the foundation of all good
governmentto be broken up or disturbed for slight or transient causes.
In the present case we are not called upon to deal with a matter of ordinary advertising,
but with a peculiar kind of advertising. Respondent did not advertise for business openly,
giving his name and office address. His advertisement was anonymous and well calculated to
encourage people to make application for divorces who might otherwise have refrained from
so doing. When a lawyer advertises that divorces can be legally obtained very quietly, and
that such divorces will be good everywhere, such advertisement is a strong inducementa
powerful temptationto many persons to apply for divorces who would otherwise be
deterred from taking such a step from a wholesome fear of public opinion. * * * The
advertisement published by respondent, to the effect that divorces could be legally obtained
very quietly which should be good everywhere, was the more mischievous because
anonymous. Such an advertisement is against good morals, public and private; it is a false
representation and a libel upon the courts of justice.
is against good morals, public and private; it is a false representation and a libel upon the
courts of justice.
Divorces cannot be legally obtained very quietly which shall be good anywhere. To say
that divorces can be obtained very quietly is equivalent to saying that they can be obtained
without publicity. Every lawyer knows that to obtain a legal divorce a public record must be
made of the proceeding; the complaint must be filed; the summons must issue; process must
be served upon the defendant either personally or by publication in a public newspaper; proof
must also be taken; and a decree must be publicly rendered by the court having jurisdiction of
the proceeding. All these public proceedings the statute imperatively requires, and for a
lawyer by an advertisement to indicate that such public proceedings can or will be dispensed
with by the courts having jurisdiction of such case is a libel upon the integrity of the judiciary
that cannot be overlooked when brought to our notice.
In the case of People ex rel. v. Brown, 17 Colo. 431, 30 Pac. 338, this court said: When
this court grants a license to a person to practice law, the public, and every individual coming
in contact with the licensee in his professional capacity, have a right to expect that he will
demean himself with scrupulous propriety, as one commissioned to a high and honorable
office. A person enjoying the rights and privileges of an attorney and counselor at law must
also respect the duties and obligations of the position.'
The case of People ex rel. v. Goodrich, 79 Ill. 148, was a disbarment proceeding under
statutes from which ours were undoubtedly borrowed. Among other things, the complaint
against Goodrich set forth that he had published advertisements without signature,
representing that he could procure divorces without publicity, and by such advertisements
solicited business of that character by communication through a particular postoffice box.
The Goodrich case, though similar to the one before us, was more aggravated in some
respects. Mr. Justice Bresse, in delivering the opinion of the court, said: This court, having
power, by express law, to grant a license to practice law, has an inherent right to see that
the license is not abused, or perverted to a use not contemplated in the grant.
court, having power, by express law, to grant a license to practice law, has an inherent right to
see that the license is not abused, or perverted to a use not contemplated in the grant. In
granting the license it was on the implied understanding that the party receiving it should, at
all times, demean himself in a proper manner, and if not reflecting honor upon the court
appointing him, by his professional conduct, he would at least abstain from such practices as
could not fail to bring discredit upon himself and the court. * * * The morals of defendant's
professional conduct deserves special notice. He makes divorce cases a specialty. How many
persons in our broad land weary of the chain that binds them? How many are eager to seize
upon the slightest twig that may appear to aid them in escaping from a supposed sea of
troubles, in which wedded life has immersed them? How many are fretting under imaginary
ills, and what better devices than those practiced by this defendant could be contrived to
increase these disquietudes, and stimulate to effort, by perjury, if need be, to free themselves
from their supposed unhappy condition? Is it desirable that divorce cases should accumulate
in our courts? If so, the defendant is justified in the means he has used, and is using, to that
end. An honorable, high-toned lawyer will always aid a deserving party seeking a divorce, as
coming strictly within his professional duties. He will render the aid, not solicit the case; and
he will, in all things regarding it, act the man, and respect, not only his own professional
reputation, but the character of the courts, and discharge the unpleasant duty in all respects as
an honorable attorney and counselor should do.'
While this proceeding presents to the court a situation demanding punitive action, and
while the higher interests of the public must not be underestimated, the effect upon the
respondent of any action by this court must not be lost sight of and should be given impartial
consideration. An attorney is required to spend years in preparation for the practice of his
profession, and this, together with his years of experience, is, very often, his greatest
asset.
together with his years of experience, is, very often, his greatest asset.
Chief Justice Marshall, in Ex Parte Burr, 9 Wheat. 529, 6 L. Ed. 152, covered the situation
fully in the following apt words: On the one hand, the profession of an attorney is of great
importance to an individual, and the prosperity of his whole life may depend on its exercise.
The right to exercise it ought not to be lightly or capriciously taken from him. On the other, it
is extremely desirable that the respectability of the bar should be maintained, and that its
harmony with the bench should be preserved. For these objects, some controlling power,
some discretion ought to reside in the court. This discretion ought to be exercised with great
moderation and judgment; but it must be exercised; and no other tribunal can decide, in a case
of removal from the bar, with the same means of information as the court itself.
As some extenuation of the respondent's unprofessional conduct, it appears that, when the
bar association of Reno called his attention to the fact that his methods of advertising were
condemned by the association, he discontinued the objectionable advertising in newspapers
and theater programs and has since refrained from the same. As this is the first case of this
character that has been brought to the attention of this court, we are disposed to be lenient
with the respondent.
It is ordered that the respondent be, and he hereby is, suspended from the practice of the
law for a period of eight months and until further order of this court, and that he pay the costs
of this proceeding.
____________

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